Professional Documents
Culture Documents
Index
Table of Authorities ................. ....... ..... .. ............... .............. .... .. ........ ....... ....... ......... iii
Statement of Facts ...... ......... ...... ...... .............. ........ ....... ....... ....... .............. ... .............. 4
I
A. Senator McCain's threat to hold a hearing if Sergeant Bergdahl
were not punished violated Article 37, UCMJ .................. ............. ...... 9
Appendix
II
Table of Authorities
Cases
Johnson v. United States, 135 S. Ct. 2551 (2015) .... ................................ .............. 32
Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953) ......................... 11
Ill
Courts of Criminal Appeals
Bergdahl v. Nance, ARMY MISC 20 17011 4 (A. Ct. Crim. App. Mar. 13, 2017)
(Order) .................. ........ ............... ........................................ ........ .............. ......... 14
United States v. Bergdahl, ARMY 20 170582, 2019 WL 3210171
(A. Ct. Crim. App. July 16, 2019) ........... ... .. ................... ....................... passim
United States v. Chikaka, 2018 WL 6052749 (N-M. Ct. Crim. App. Nov. 15,
2018), set aside, 2019 WL 2070678 (C.A.A.F. Apr. 2, 2019)...... ......... ...... 17, 19
United States v. Kohlman, 2 I C.M.R. 793 (A.B.R. 1956) ....... ............... ............... . 32
United States v. Paige, 6 M.J. 529 (A.C.M .R. 1978) ... ................................... ......... 3
Other Courts
Knight First Amend. Inst. at Columbia Univ. v. Trump, 925 F.3d 226
(2d Cir. 2019) ......... ................................................................................ .......... .. 15
Topps v. State, 865 So.2d 1253 (Fla. 2004) (per curiam) ......................................... 3
Uniled States v. Dean, 752 F.2d 535 (I I th Cir. 1985).............................................. 3
United States v. Hubbard, 650 F .2d 293 (D .C. Cir. 1980) ........ .... .. ..................... 3
IV
Art. l 05(1 ) ...... ....... ........ ....... ............. ........ ......... ..... ..................... ............. ......... 29
Ait. 120c .. ....... ... ............. ...... ................. .... .. ....... ..... ............... ........................ 29
Art. I 20c(d) ................................................... ............. ........ ............ ........ ............ 29
Art. 121 ........................................... .. ............. ...... .............. ................................ 30
Art. 122 .. ............ ......... ............................. ....... ............ .. ...... ................ ........ ....... 30
Art. 134 ......... ....... ....... ....... ........ ....... ....... ....... ... ............ ....... .............. ....... .. 30, 32
Other Authorities
Wayne Anderson, Unauthorized Absences, ARMY LAW., June 1989 ............. ........ 32
Peter Baker, Trump Tells Navy to Strip Medals From Prosecutors in War Crimes
Trial, N. Y. Times, Aug. 1, 2019 ....... .... . ... . .. . .. ..................... ....... ......... J9
VERNON E. DAVIS, THE LONG ROAD HOME: U.S. PRISONER OF WAR POLICY AND
PLANNING IN SOUTHEAST AREA (0SD 2000) ...... .................... .............. ....... ......... 8
John Gage, 7i·ump: 'Glad I could help' After Navy SEA L Gallagher Found Nol
Guilty of' War Crimes, Wash. Examiner, July 3, 2019 ................... .. ...... ........ .... 19
JOSEPH HELLER, CATCH-22 (I 961 ) ................................................. ............... ....... ... 15
Kyle Jahner, Sens. Prod Pentagon Legal Picks on North Korea. Sex Assau/J,
Law 360, Nov. 14, 2017 .......... ................................................... ..................... 10
EMANUEL SAMUEL, A N HISTORICAL ACCOUNT OF THE BRITISH ARMY,
AND OF THE LAW MILITARY (1816) ... ....... ....... ....... ............................ ................. 32
Tom Vandcn Brook, Army says USA TODAY sto,yforced it to drop plans
for waivers.for high-risk recruits, USA Today, Nov. 15, 2017 ......................... 10
Tom Vanden Brook, McCain outraged by Army waivers.for seffmutilation;
He threatens to suspend Pentagon nominations, USA Today, Nov. 15, 2017 .... 9
V
Rachel E. Va11Landingham & Geoffrey S. Com, if We Want Troops to Follow
Orders. We Should Trust Their.Justice System, Wash. Post, Aug. l , 2019 ....... 19
Peter B. Work, Misbehavior Before the Enemy: A Reassessment,
17 AM. U. L. REV. 447 ( l 968) ............... ................ .................... ...... ....... ............ 32
VJ
Assigned Errors
The Court of Criminal Appeals had jurisdiction under Article 66, UCMJ . This
Court has jurisdiction under Article 67(a)(3), UCMJ. The petition for grant of review
Sergeant Bergdahl was charged with one specification each under Articles
1
Paktika Province, Afghanistan, and did remain so absent in desertion
until on or about 31 May 2014.
guilty in part and not guilty in part to short desertion, contesting the duration element
except for the first day. After affording the government an opportunity to prove the
5-year period it had alleged, 27 R. at 1676, the military judge found SGT Bergdahl
guilty in accordance with his plea and not guilty as to the remainder of the period.
2
On November 3, 2017, the military judge sentenced SGT BergdabJ to a dis-
honorable discharge, reduction to Private (E-1), and forfeiture of $1,000 pay per
month for 10 months. 30 R. at 2704. On June 4, 2018 the convening authority ap-
On July 16, 2019, the Army Court affirmed, United States v. Bergdahl,
ARMY 20170582, 2019 WL 3210171 (A. Ct. Crim. App. July 16, 2019), over a
partial dissent by Judge Ewing. Focusing on a tweet in which President Trwnp called
the sentence "a complete and total disgrace to our Country and to our Military,"
Judge Ewing concluded that "the timing, specificity, and unequivocal nature" of die
tweet make it impossible" to say the government carried its burden of proving be-
yond a reasonable doubt that an objective, disinterested observer would not "harbor
a significant doubt about the faimess of the proceedings." Slip op. at 28.
The Cou11 denied extraordinary writ relief as to some of the UCI issues the
case raises in Bergdahl v. Nance, 76 M.J. 342 (C.A.A.F. 2016) (Order) (Sen.
1
McCain), and In re Rergdahl, 76 M.J. 38 (C.A.A.F. 2016) (Order) (Pres. Trump).
1
The denial of an extraordinary writ is not res judicata when the same issue is raised
on regular appellate review. United Stales v. Dean, 752 F.2d 535, 541 (11th Cir.
1985); United States v. Hubbard, 650 F.2d 293,310 n.6 (D.C. Cir. 1980); see Topps
v. SI.ate, 865 So.2d 1253 (Fla. 2004) (per curiam); United States v. Paige, 6 M.J. 529,
531 & n .4 (A. C.M.R. 1978). The President's "disgrace" and "traitor" tweets, referred
to in Point I infra, have not previously been before the Court.
3
Statement of Facts
entry level separation and the Coast Guard cautioned that he should not be reen-
The Army enJisted him l:\vo years later without such an evaluation. Def Ex. D.
(An in-depth psychological examination conducted after his release from enemy
captivity found him to have been suffering from schizotypal personality disorder
and PTSD at the time he left his post. 30 R. at 2462-63, 2471, 2481 .)
In May 2009 SGT Bergdahl joined his platoon at FOB Sharana, Paktika
Mest. 3 J R. at E0083 . Around midnight on June 29, 2009, SGT Bcrgdahl left
was quickly tackled and beaten. 29 R. at 2165. Later, at another location, he es-
caped during a change in his captors' guard shift, but was again recaptured. 29 R.
at 2171-73. The conditions of his captivity grew worse. Suffering from dysentery,
infected wounds, and malnutrition, beaten with copper electrical conduit, burned,
4
chained to a metal bed frame, he was threatened with beheading if he again tried
the Pakistani border, evading recapture for eight days before succumbing to mal-
nutrition and other injuries. 29 R. at 2202-05. His captors locked him in a cage for
four years. 29 R. at 2209-10, 2346, 2351 . He was subjected to "torture ... abuse
five former members of the Taliban government whom the United States had been
announced that he was displeased with both the decision to search for SGT Bcrg-
dahl (whom he called a deserter) and the prisoner swap. D APP 23 at 47 . He said
the Senate Armed Services Committee (SASC) would examine the case "as soon
liminary hearing officer's recommendation that SGT Bergdahl not face confine-
ment or a punitive discharge, he said: "If it comes out that [SGT Bergdahl] has no
punishment, we're going to have a hearing in [SASC] . ... " D APP 27 at 6-7.
At the preliminary hearing, the general officer who bad conducted the AR
at 5 (quoting Art. 32 Tr. 310). On December 22, 2015, the convening authority
5
referred the charges to a general court-martial, contrary to the preliminary hearing
calls for his execution. A video collecting those attacks is in the record. See D Ex.
p_2
On January 20, 2017, Mr. Trump became President. Rather than disavowing
his statements about SGT Bergdal1l, he ratified them on October 16, 2017. Days
later, he sent the "disgrace" tweet. On April 26, 2019, while the case was pending
below, he sent another tweet (the "traitor" tweet) that concerned Otto Warmbier-an
American citizen who had died following release from captivity in North Korea- but
introduction
There is good cause to review this "unusual case, [which is] perhaps m1ique
2
lbe Anny Court sought to play down this evidence by noting that the 28-minute
video was distilled from 46 hours of speeches. Slip op. at 4 n.5. That is like saying
the 1906 and 1989 San Francisco earthquakes were not severe because most of the
lime there are no earthquakes in the Bay Area.
6
attempted to interfere every step of the way. As the Anny Court's split decision
reflects, the case raises important questions concerning both the standards of proof
and the remedies for apparent UCL Left undisturbed, the decision will encourage
further exploitation and abuse of the military justice system, and those who are sub-
ject to it, for political gain. Indeed, even in the short time since the Anny Court acted,
that has happened. See note 9 infra. The exploitation of military justice as a political
Apart from the UCI- and all but ignored by the Anny Court-the military
judge's erroneous disposition of two issues raised by the charges and specifications
The first concerns 1he application of the specific intent element of short desertion in
a way that improperly renders that offense indistinguishable from simple AWOL.
The second was to pennit the government to bring two charges for precisely the
same act.
A third merits issue (this one treated at length by the Anny Court, albeit erro-
the statute, and in so doing raised a substantial constitutional question of fair notice.
7
These errors followed a remarkable decision to charge a returning long-term
POW whose conduct as a POW had been exemplary. That decision was forged under
a dark cloud of politically-driven UCL The UCI persisted and was never remedi-
ated.3
Argument
The Anny Court's analysis of the UCI issues focused on the post-conviction
phase of the case, but the prosecution suffered from apparent UC! from its inception.
An infonned disinterested member of the public would have noted that (I) for SGT
Bergdahl, the military departed from its longstanding practice of not prosecuting
returning POWs except for offenses committed in captivity, see VERNON E. DAVIS,
THE LONG ROAD HOME: U.S. PRISONER OF WAR POLICY AND PLANNING IN SOUTH-
EAST ASIA I 54-55 (OSD 2000) (quoted in D APP 66 at 9); (2) he was charged not at
his home duty station in Texas but by a distant command with which he had no prior
connection; (3) the preliminary hearing officer's recommendation was rejected with-
out explanation; (4) a rare, bespoke "misbehavior" charge was brought; and (5) the
3
UCI is reviewed de novo, United States v. Barry, 78 M.J. 70, 77 (C.A.A.F. 2018),
as are the other issues of law. Unreasonable-multiplication issues are reviewed for
abuse of discretion. United States v. Campbell, 71 M.J. 19, 22 (C.A.A.F. 20-12).
8
two charged offenses alleged precisely the same act- crossing the wire at OP Mest
without authority on June 30, 2009. That member of the public would also be aware
that all of this occurred against the backdrop of a controversial detainee exchange
and a threat that if the Soldier liberated in that exchange were not punished, the
with Sen. McCain's threat to conduct a hearing if he were not ptmished. The military
judge refused to give Article 37, UCMJ, its plain meaning despite the fact that Sen.
McCain was a retired naval officer, AE 19 at 3, and hence subject to the Code. AE
19 at 6-7. Alten1atively, he rel ied on the fact that Sen. McCain lacked command
authority, insisting that he "simply has no authority over the military services or its
members." Id. at 7. 4 In his view, Sen. McCain was merely "an elected public official
who has one vote in one chamber of [C]ongress among 535 votes that may be cast
on any issue [a]ffecting the funding or regulation of the military." Id. That highly
4
This Court thereafter held that a person who lacks the "mantle of command author-
ity" can exert unlawful influence. Barry, 78 M.J . at 76-77.
5
See also Tom Vanden Brook, McCain outraged by Army waivers for selfmutila-
tion; He threatens to suspend Pentagon nominations, USA Today, Nov. 15, 20·17_
9
The Army Court e-orrectly rejee-ted the military judge's ruling that Article 37,
UCMJ, did not apply to Sen. Me-Cain, slip op. at 9, but dismissed "the link between
the role of the SASC and issues that [he] may have had with other Anny officials
and policies [as] speculative at best." id. at 9 n.13. That was mistaken because the
record shows that tbe Anny was highly attenli veto him. See generally D APP 27 at
4; AE 12 at 20, 25-26. Given the low threshold UCT burden, see. e.g, United States
The Anny Court's determination that there was no evidene-e ofUCI, slip op.
at 9, was wide of the mark. It held that Sen. McCain's "ill-advised statements" did
not "rise to the level of an 'intolerable strain' on the military justice system" because
an informed observer would recognize them "for just what they were - political pos-
turing designed to embarrass a political opponent (President Obama) and gain some
political advantage." Slip op. at 9-10. Not only was there no evidence to support this
assertion, there was evidence that infonned disinterested observers viewed Sen.
McCain' s meddling as serious and not mere politics. D APP 41. Indeed, both the
IO
Anny and his own staff recognized that his conduct sounded in UCI and wisely (but
it will be a sad day for due process of law. That day has not come, c.f Shaughnes., y
v. United States ex rel. Mezei, 345 U.S. 206, 228 (1953) (Jackson, J., dissenting)
("No one can make me believe that we are that far gone"), and the Court should not
to the heart of an individual's right to fair treatment as well as the good name of the
supra.
The Army Court erred in failing to find that Sen. McCain's conduct consti-
B . The government did not meet its high burden ofproof as 10 the
pre-inaugural statements that President Trump ratified after tak-
ing office
commander in chief. U.S. Const. art. Il, § 2, cl. I . He is "the ultimate military au-
thority." United States v. Gleason, 78 M.J. 473,476 (C.A.A.F. 2019). When he ex-
presses strong views with respect to the guilt and punishment of a specific Soldier
facing a court-martial before the legal process has run its course, Fifth Amendment
l1
due process (in which this Court's UC! jurisprudence "is rooted," slip op. at 25 n.32
justice system. The President's unique status must be taken into account when con-
sidering whether a disinterested observer,fally infi>rmed ofall the facts and circum-
The military judge announced the findings at 1:00 p.m. on October 16, 2017.
Garden for a press conference. When a reporter asked, "Do you believe that your
comments in any way affected Bowe Bergdahl's ability to receive a fair trial? And
Well, I can 't comment on Bowe Bcrgdahl because he's-as you know,
they're- I guess he's doing something today, as we know. And he's
also- they're setting up sentencing, so I'm not going to comment on
him . But I think people have heard my comments in the past
presiden/ial. The military judge refused to dismiss the charges based on this ratifi-
cation because, in his opinion, the government had proved that, while there was UCI,
there was no intolerable strain on the military justice system . He said, though, that
he would take the President's comments into account as mitigation evidence. The
Army Court correctly noted that whatever adjustment he made would not have
12
"cure[d] the taint of UCI" had he found UCL Slip op. at 13 n. 19. It follows that, as
there was UCT at that instant, SGT Bergdahl should have been afforded relief for it.
The Anny Court claimed the ratified comments were remote in time. Slip op.
at ·12; id. at 28 n.36 (Ewing, J., dissenting in part). This was not a valid basis for its
ruling since the government had adduced no evidence that his disparaging campaign-
trail comments had somehow "burned off.''° Moreover, President Trump had not
only breathed new life into them by ratifying them in the Rose Garden a few days
before sentencing, but his own remark-"J think people have heard my comments
The Army Court also relied on the assurances of the military judge, staffjudge
advocate and convening authority that they would not be affected by President
Trump's statements. Such assurances, coming from military subordinates, arc hardly
would make of the circwnstances.7 Cf slip op. at 28 (Ewing, J., dissenting in part).
6
The decision below is unfair. On the one hand, the Army Court plainly agreed with
the military judge's view that SGT Bergdahl's Inauguration Day motion was prem-
ature, slip op. at 11 o.15, but on the other, it found that the vilification of which he
complained had bun1ed off when he renewed that motion following the Rose Garden
incident. id. at 12; see also id. at 16. This "heads I win, tails you lose" whipsaw
renders the prohibition on UCT illusory.
7
ln support of this conclusion, the Army Court quoted the military judge's reference
to a generic statement tbe White House issued at the behest of trial counsel (D App
95 at 11-12) following the Rose Garden episode as proof that President Tn1mp "does
not expect any certain sentence in this case." Slip op. at 12 n.17. Reliance on that
statement was unwarranted because the "disgrace" tweet a few days later proved it
13
A disinterested observer would, like Judge Wolfe in Hergdahl v. Nance, ARMY
MISC 20170114 (A. Ct. Crim. App. Mar. 13, 2017) (Order) (Wolfe, J., concurring),
be aware of the "structural differences in the composition of' the Army Court "as
compared with" this Court, a not-so-veiled reference to the fact that the judges of
that court are the President's military subordinates and for that reason less likely to
Finally, the Army Court's effort to distinguish the case from Boyce and Bany
because it was SGT Bergdahl who brought President Trump's ratification of his ear-
lier comments to the trial court's attention, slip op. at 12- l 3, again misses the mark.
What matters is not how the military judge (or for that matter, the judges of the Army
Court itself, see id. at 18) became aware of the presidential tweet, but rather, how
the matter would appear to a member of the public who was aware tlrnt uniformed
judges were to resolve substantial apparent UCI issues involving the President him-
self, while he, their ultimate superior, continued to weigh in publicly on the matter.
to be a sham . The Army Court implied that SGT Bergdahl's claim was weakened
because he declined an offer by the military judge to require downstream actors to
read the statement. Id. at n.18. Far from simply "demurr[ing]," SGT Bergdahl de-
clined that offer because (a) the White House's generic statement was without value
(a submission President Trump personally validated a scant two weeks later); (b) a
military judge cannot issue orders to the Army Court; and (c) the statement would
be in the record anyway, 30 R. at 2705, as it is.GAPP 103 at 12, 37 R. at 310. The
Anny Court also en·ed in relying on the "absen(ce] of any fonnal request for clem-
ency in the form of sentence reduction," slip op. at 17, since SGT Bergdahl's post-
trial submissions expressly cited numerous substantial grounds for the exercise of
clemency.
14
The Army Court's implication that SGT Bergdahl is responsible for the fact that the
courts below even became aware of the UC! is the kind of"Catcb-22" Joseph Heller
C. The "dis6rrace" and "traitor" tweets and the other UC] warrant
dismissal with prejudice or oLher meaningful relief
The "disgrace" tweet, an official statement, Knight First Amend. Insl. at Co-
lumbia Univ v. Trump, 925 F .3d 226, 234-36 (2d Cir. 2019), violated R.C.M.
104(a)( I) because the President is a convening authority. Art. 22(a)(1 ), UCMJ. The
majority recognized that it placed a strrun on the military justice system, but opined
that the system '\s not so fragile that this comment caused an intolerable strain,"
even while claiming to be "mindful l11at the President's words could have a chilling
effect on this military judge or on similarly situated appellants." Slip op. at 17. As
for the "traitor" tweet, the majority observed that it was "not a per se violation of
R.C.M. 104(a)(I )" and found "no nexus between [it] and tl1e appellate process." Id.
at 17-18. As a result, it found that SGT Bergdahl had not carried his low threshold
burden. It also concluded that "the cumulative effect could not reasonably be per-
Because it excluded both Sen. McCain's threat and the President's "traitor"
tweet, slip op. at 18, the Anny Court's cumulative-UC! analysis was prejudicially
incomplete. The low threshold burden SGT Bergdahl had to meet with respect to
15
that tweet was plainly satisfied because the case was still pending before the Army
Court, a body that enjoys sweeping powers and is composed entirely of President
Whether or not the Army Court adopted too narrow a focus when considering
cumulative UC!, its conclusions make a mockery of this Court's UCf jurispmdence
and, worse yet, do so in a case involving the Nation's single most powerful public
official. We cannot agree that the military justice system is powerless in the face of
such facts. Nor should this Court accept the Army Comt's claim that the entire se-
quence of events not only would not, but "could not" (emphasis added) trouble a
Relief must be "meaningful" and should "eradicate" the UCL Barry, 78 M.J. at 79.
lt should reflect the totality of the circumstances. Boyce, 76 M.J. at 249, 252. Relief
is not per se precluded by the accused's offense. Bany (sexual assault); United
States v. Riesbeck, 77 M.J. 154 (C.A.A.F. 2018) (forcible rape). The relief should be
(C.A.A.F. 2011) (Art. 13, UCMJ credit). lt is pertinent if the UCI is "egregious,"
8
Equally remarkable is the Army Court's assertion that when R.C.M. 104(a)(l) is
violated, only the military judge has something to complain about. Slip op. at 17
n.25 . UC! is the "mortal enemy of military justice," e.g., Boyce, 76 M.J. at 246, not
only of military judges.
16
Boyce, 76 M.J. at 252, or had the capacity to do "catac;trophic mischief." United
States v. Chikaka, No. 201400251, 2018 WL 6052748 at *4 (N-M. Ct. Crim. App.
Nov. I 5, 2018), set aside on other grounds, 2019 WL 2070678 (C.A.A.F. Apr. 2,
Boyce, 76 MJ. at 248 n.5; Chikaka, 2018 WL 6052748 at *6. Here there were none.
Neither Sen. McCain nor President Tn1mp ever retracted the statements in question,
much less acknowledged their error. The \\lhite House Press Office statement never
even mentioned SGT Bergdahl and in any event was promptly disregarded by t11e
President himself. Neither the Secretary of Defense, the Secretary of the Army nor
The Judge Advocate General of the Army ever undertook any curative meastu-es.
The seniority of the actor and whether he or she is still in office should cer-
tainly be factors. Similarly, while the knowledge or intent of the actor are not re-
quired for a finding of apparent UCI, Boyce, 76 M.J. at 251 ; United States v. Simp-
son, 58 M.J. 368,374 (C.A.A.F. 2003), they would also constitute matter in aggra-
UCI relief should not produce a windfall, Boyce, 76 M.J. at 253 11. l 0, but that
consideration does not militate against decisive relief here. First, in apparent UC!
17
cases, the primary interest being vindicated is the public interest in fostering confi-
dence in the military justice system. Second, the relief SGT Bergdahl seeks- dis-
missal with pr~judice- cannot be considered a windfall. He was held captive for
five years under horrendous conditions, and then, through no fault of his ov.rn, the
legal proceedings have lasted another five years, during all of which his life has been
on hold. He is highly likely to continue to be an object of hostility for the rest of his
branding him a traitor as recently as this April-a bell cannot be unrung. Finally, the
fact tl1at he was even prosecuted ran counter to Department of Defense policy dating
back half a century that returning POWs will only be prosecuted for offenses com-
mitted in captivity, and, as Judge Ewing pointed out, the adjudged sentence itself
was no windfall. Slip op. at 28-29. Because only the strongest of UCJ remedies is
Meaningful relief that is proportionate to the UCT and sufficient to deter pol-
iticians from engaging in similar conduct in the future is not only warranted but
critical to ensure public confidence in the military justice system. The relief should
reflect the fact that President Trnmp holds the Nation 's highest office and has shown
indifferent to his own Press Office's "curative" statement, and entirely willing even
18
9
now to meddle in the administration of justice under the UCMJ. The phrase heap-
plied when illegally criticizing the military judgc-"complete and total"- is an apt
yardstick for the appropriate, proportional relief. The charges should be dismissed
9
President Trump personally intervened to release a Navy chief petty officer accused
of murder, among other things, from pretrial confinement. After the chief was ac-
quitted of all but one offense, the President tweeted that he was glad to have been
able to help. John Gage, Trump: 'Glad I could help' After Navy SliAL Gallagher
Found Not Guilty of War Crimes, Wash. Examiner, July 3, 2019. On July 30, 2019,
he intervened again by ordering the Secretary of the Navy and the Chief of Naval
Operations to revoke decorations that had been awarded to members of the prosecu-
tion team. Peter Baker, Tn,mp Tells Navy to Strip Medals From Prosecutors in War
Crimes Trial, N.Y. Times, Aug. l, 2019. "Other presidents have been dissatisfied
with military prosecutors, but experts could not recall another instance in recent
times when a commander in chief intervened so directly in a case like this." Id. Two
respected scholars of military justice have wan1ed that the President's "public dia-
tribe threatens the credibility of a system of justice that has helped maintain order
and discipline in our anned forces for centuries. Worse yet, it chips away at public
tn1st in the integrity oftbis system." Rachel E. YanLandingham & Geoffrey S. Com,
If We Want Troops to Follow Orders, We Should Trust Their Justice System, Wash.
Post, Aug. I, 2019.
'° Although the UCI issues are compelling and critical (and we have therefore placed
them first in this supplement), the Court should grant all of the assigned errors and
address the non-UCI issues first in order to be able to have a proper starting point
for fashioning UC! relief. Cf Chikaka. supra. The Court may also wish to focus on
the interaction among the non-UCI issues. Tbus, if relief is granted on UMC grounds
and Charge I is dismissed as the less serious of the two, the Court would have no
occasion to rule on Issue III. If relief is granted on Issues Ill or IV, it would have no
occasion to rnle on Issue n. Conversely, if the Court dismisses with prejudice for
UCI, it would have no occasion to rule on any of the other issues.
19
TT
is substantially one transaction should not be made the basis for an unreasonable
multiplication of charges [UMC] against one person," R.C.M. 307(c)(4 ), SGT Bcrg-
dahl moved to dismiss one of the charges for UMC for findings. D APP 94. The
military judge denied the motion from the bench, but stated that he found UMC for
sentencing purposes. He promised to set forth " more detailed" findings and conclu-
sions at a later date ifhe decided that was appropriate, 27 R. at ·1712, but never did.
His action was an abuse of discretion, and being entirely unexplained, is entitled to
reduced deference. United States v. r1esher, 73 M.J. 303, 311-12 (C.A.A.F. 2014);
Uni1ed Slates v. Hursey, 55 MJ. 34, 36 (C.A.A.F. 2001 ). The Army Court refused
without explanation to grant relief on this issue, slip op. at 12 n.1, even though the
without authority on June 30, 2009. As the lesser of the two, Charge I and its speci-
Under Uniled ,",tales v. Quiroz, 55 M.J. 334 (C.A.A.F. 2001), SGT Bergdahl
was entitled to relief. The case is not, like Quiroz itself, about disparate acts on
different days that may constitute "substantially one transaction. " The charges
and specifications assert precisely the same single and instantaneous act. As to
20
the Article 85 charge, the government pointed to no act of " shirking" or "avoid-
ing" other than that departure, and as to the Article 99 charge, no act of either
tional misconduct." When the defense challenged it, D APP 65, the military
or problematic. The surviving allegation was that SGT Bergdahl left OP Mest
that referred to "wrongfully caus[ing] search and recove1y operations" does not state
an act-and certainly not a "distinctly separate criminal act," as Quiroz requires. The
surgery the military judge performed caused the specification of Charge l to align
aggerates any criminality. The essence of desertion is the intent to abandon duty.
Yet SGT Bergdahl sought to report to a post. Short desertion requires either the
" avoidance" of a hazard or the "shirking" of an important duty, while the essence
that placed himself in great peril. That he would miss guard duty was a collateral
consequence, not the objective of the dangerous trek that was to end with report-
21
conduct. So did " Misbehavior." SGT Bergdah.l' s conduct bore no resemblance
to running away, playing dead, and the like. However misguided, his motives
Charging both desertion and misbehavior was also an exaggeration. Short de-
sertion involves a conscious purpose to shirk or avoid one's duty. SGT Bergdahl's
absence from guard duty was a collateral consequence of his conscious purpose to
travel to another base within the command. Misbehavior charges quintessentially in-
The fifth Quiroz factor is also satisfied: political meddling; the unexplained
ters and then to FORSCOM; the dedication of resources out of all proportion to
the charges (50 members of the prosecution team signed protective order acknowl-
the AR 15-6 investigating officer; and the never-explained decision to ignore the
confincment disposition.
The Army Court erred in its perfunctory treatment of this issue, which
22
IT!
The Anny Court found that SGT Bergdahl's "plan was to walk to his higher
headquarters at Forward Operating Base (FOB) Sharana to complain about the treat-
ment of his platoon." Slip op. at 2. 11 That finding is fatal to Charge I and its specifi-
cation given the specific intent element of short desertion. MCM ~ 9.b.(2)(b). Be-
cause SGT Bergdahl's plea was based on the military judge's erroneous understand-
ing of that element, there is a substantial basis for finding the plea improvident.
23
beyond a reasonable doubt, that SGT Bergdahl's subjective intent was
to avoid hazardous duty and shirk important service, or something else.
Evidence of different intents- that is, intents other than to avoid hazard-
ous duty and shirk important service- can raise a reasonable doubt as to
whether he had the specific intent that is legally required tor desertion.
You must therefore take into account any and all evidence that would
tend to reveal SGT Bcrgdahl 's subjective intent in acting as he did.
D APP 86 at 1-2. The military judge heard from the parties, 26 R. at 1428-31, but
SGT Bergdahl elected a bench trial before the military judge provided the parties
with the instructions he would give. When the question of specific intent came up
during the Care inquiry, see United Stales v. Care, 18 C.M.A. 535, 40 C.M.R. 247
( 1969), it became clear that he did not agree with the position espoused in the defense
instruction:
MJ: But intent is a different thing [from motive]. Did you specifically
intend to shirk this important seivice or avoid this hazardous duty as
I've define those terms-or- and avoid this hazardous duty as I ' ve
defined those terms to you?
ACC: Yes, sir. It was not my primary intention; however, I did intend
to miss my guard duty and the possible convoy back to Sharana in or-
der to carry out my main intention.
MJ: And you knew those-you had the duty and the convoy was prob-
ably going to occur?
ACC: Yes, sir.
MJ: And when you left, you knew by leaving you would not make your
guard duty and you would not make the convoy?
ACC: Yes, sir.
MJ: So does that mean you intended to miss tl,ose two things?
A.CC: Yes, sir. I wouldn't be there.
MJ: I' m sorry?
24
ACC: Yes, sir. r would already be at FOB Sharaoa, and I wouldn't be
there [at OP Mest]. So I knew that I wouldn't be there for the guard
duty or the convoy back to FOB Sbarana.
MJ: Okay. You've referenced this sort of vaguely; but let's talk about
how you fom1ulated this intent to miss these t\lvo events, your guard
duty and the convoy. Explain to me how that first came in[to] your
mind that you would miss those things- that you were going to miss
those things?
ACC: Can I have a moment, sir?
MJ: Sure
[Pause.]
ACC: Sir, that night when I decided to act upon my plan to walk to
FOB Sharana-run to FOB Sharana and report critical problems that I
believed at the time were in my chain of command-it was that night
that I knew I would not be there, that l would be missing my guard
duty the next day and the convoy back to FOB Sharana.
MJ: And knowing that, l mean, did you decide that what you needed
to do was more important in your mind at the time than being at your
guard duty or participating in the convoy?
ACC: Yes, sir. For the many factors that I saw in front of me, we had-
I was currently on the tn1ck that- its sector of fire we were told we
were not allowed to fire into because it was facing a village. And-
[Pause.]
ADC: Your Honor, if I may, I believe the last question that was asked
was: In Sergeant Bergdabl's mind, did he believe it was more im-
portant to go to FOB Sharana than to conduct the-
[The military judge indicated a negative response.]
ADC: No, okay-I apologize, Your Honor.
MJ: No. Did he believe that leaving for whatever reasons he had was
more important than being present for his guard duty and for the con-
voy? Did you decide that? Did you decide, "Look, I know I've got this
guard duty. I know this convoy is coming up, but I don't care about
that because what I need to do, for whatever reason, is going to FOB
Sharana is more important, so I'm going to miss those events."
ACC: Yes, sir. That is correct.
25
MJ: Is that- and I don't want to put words in your mouth. I'm just
trying to explain-what I'm trying to understand from you, the deci-
sion point, the choice that you made in your mind.
ACC: Yes, sir.
MJ: Was that the choice?
ACC: Yes, Sir. Just one moment, sir.
[Pause.)
ACC: Yes, sir. I knew that it was required of me to be at those duties.
27 R. 1657-60.
Based on the foregoing colloquy, the military judge accepted SGT Bergdahl ' s
plea to short desertion. 27 R. at 1676. This was error. It was not sufficient that he be
aware that avoidance or shirking was a necessary consequence of his intended act-
Article 8S(a)(2) "does not prohibit absence without leave from a unit engaged
in hazardous duty; rather it prohibits absence without leave with an intent to avoid
ha7..ardous duty." United States v. Gonzalez, 42 M.J. 469,474 (C.A.A.F. 1995). Gon-
zalez's citation to United States v. Apple, 2 C.M.A. 592, 10 C.M .R. 90 (1953), shows
that "intent" means "objective" rather than mere knowledge. PV2 Apple left a for-
ward post with the claimed objective of reporting to a post in the rear in order to
correct an error in his service record. Like SGT Bergdahl, he knew that by doing so
he would be absent from his duty station. But that absence was a collateral conse-
quence, not the objective: "Although [PV2 Apple] may infacl have avoided [duty],
26
his object instead was to secure clarification of his confused rotation point situation."
United .'>'tales v. Huet- Vaughn, 43 M.J. 105 (C.A.A.F. 1995), concerned Dr.
whether what motivated her Q1er political view about the legality of Operation Desert
Storm) was relevant to a charge of desertion. The Court held that it was not, but there
was no dispute that her that objective (and therefore her specific intent) was to fail
to deploy. There is no parallel here. SGT Bergdahl was not motivated to thwart the
war effort in Afghanistan. Quite the opposite; as summarized by trial counsel, the
evidence showed that he wanted to report problems with his chain of command and
get more aggressive with the enemy. 30 R. at 2657-58. The government correctly
asserted that his objective was to reach Sharana and report to a general officer con-
81 at 11 . Accepting SGT Bergdahl's plea effectively read the word " specific" out of
the phrase "specific intent" and renders short desertion indistinguishable from
AWOL
ment, the plea was improvident and the Army Court should have set aside the find-
27
TV
THE MISBEHAVIOR CHARGE DOES NOT STATE AN OFFENSE
Charge ll and its specification do not state an offense under Article 99(3)'s
intentional misconduct clause because the pleaded acts are not independently crim-
inal. The Army Court' s contrary holding, slip op. at 20-22, is subject to de novo
Sergeant Bergdahl acknowledged during the Care inquiry that his actions
did not explain, however, that misconduct had to violate some other punitive article
in order to come ~~thin the intentional misconduct clause. Because his interpreta-
tion, seconded by tJ1e Army Court, was incorrect, the plea to Charge 11 and its spec-
ification and the related findings must be set aside and the charge and specification
before the enemy that endangers a "command, unit, place, or military property." To
fense. TI1e leading case is United States v. Carey, 4 C.M.A. 112, 15 C.M.R. 112
(1954), involving a tank commander who was drunk on duty in combat in Korea.
The Court explained that Article 99 had been enacted to provide clear standards for
criminal conduct:
28
it is evident that the guides thus fixed for determining guilt or innocence
could be known only to one thoroughly acquainted with the decisions
of military tribunals defining from time to time the standard of behavior
before the enemy. Recognizing that this was an unsatisfactory method
of determining the elements of a capital offense, Congress eliminated
from the Uniform Code of Military Justice the general term "misbe-
haves himself." ... in Article 99 of the Code, supra, the acts constitut-
ing misbehavior before the enemy are set out in eight categories. .. .
(T]his A.tticle seeks to particularize the conduct proscribed and to pro-
vide clear standards by which violations may be determined.
Id. at 115, 15 C.M .R. at 115. Analyzing the "intentional misconduct" clause, the
Court defined "misconduct" as "a transgression of some established and definite rule
of action" and "a violation of definite law," id. , and upheld the conviction because
the conduct at issue was independently criminal. Id. at 116, 15 C.M.R. at 116.
The two other punitive articles in which the term "misconduct" appears
"Other sexual misconduct" and the body of the provision articulates what that en-
That only conduct that is independently criminal falls within Article 99(3) is
apparent from the Manual. Thus, the Manual uses the verb "commit" in describing
what a member of the anned forces must do to violate any of the statute's three
29
connotes the perfonnance of a criminal act. Moreover, the A1anual employs the term
The Manual explains that that phrase "means to seize or appropriate public or private
Atiicle 99(3)'s three clauses should be read harmoniously. The first two--
disobedience and neglect-describe offenses under the Code. Alts. 90(2), 91 (2),
92(1)-(2) (disobedience), 134(1) ("all disorders and neglects to the prejudice of good
order and discipline in the anned forces"); see United States v. Tucker, 76 M ..J. 257,
258 (C.A.A.F. 2017) (per curiam ). Under the noscitur a sociis canon, the third clause
Before the military judge perfonned surgery on it, the specification of Charge
II alleged intentional misconduct in three respects: (I) that SGT Bergdahl left OP
Mest alone; (2) that he left without authority; and (3) that be wrongfully caused
independent of one another. There is no implication that the third was the result of
30
the first two. Had that been the drafter' s intent, the semicolons would have been
commas and "thereby" (or words to that effect) would have appeared before "wrong-
fully ." Even if the three allegations are read together or in some combination, they
would still not plead an offense m1der the Code or any violation of a definite law.
to in the only pertinent sample specification for Article 99(3), see MCM ~,i 73, 76-
can satisfy the intentional misconduct clause, none of the three allegations states an
offense.
The original specification's first allegation did not state any known military
or civilian criminal offense. It did not claim that it was disobedient for SGT Bcrgdahl
to leave OP Mest alone and nothing in it invoked the disobedience clause. The ex-
the others. See AE 29, at 3 ,i 5; see also AE 49 at 6 ("[t]he accused does not have to
the enemy"). The second allegation- that he left without authority-similarly does
not state an offense: it pleads neither the first required AWOL element (his unit and
the unit at which he was required to be) nor the third (duration). MCM,r,r 1O.b.(3)(a),
(c). It does not even assert that he was required to be at some particular place. See
31
United States v. Kohlman, 21 C.M.R. 793, 794 (A .B.R. 1956), discussed in Wayne
The avoidance canon, see Fosler, 70 M.J. at 232, requires that doubt as to
whether the intentional misconduct clause extends to conduct that is not inde-
pendently criminal be resolved in favor of the stricter view. Article 99(3) is de-
scended from a provision that was already a source of concern 200 years ago. See
447, 449 & 11. 14 (1968) (footnotes omitted) (quoting EMANUEL SAMUEL, AN HIS-
TORICAL ACCOUNT OF THE BRITISH AR.MY, ANO OF THE LAW MILITARY 593 (1816)
("it is impossible to fonn any precise notion of the act or acts, which may be con-
ceived to constitute" the offense). "[T]he potential sources of fair notice," United
States v. Warner, 73 MJ. 1, 3-4 (C.A.A.F. 2013), remain unavailing. Neither the
Because the clause does not provide fair notice and invites arbitrary applica-
tion, see Work, supra, at 451-53, it "denies due process of law," Johnson v. United
12
Rea"oning from Articles 78 and 8 I, UCMJ, and the (obsolete) Article 134, UCMJ,
offenses of misprision and soliciting, the Anny Court held that the specification did
not need to plead every element of the independent crime. Slip op. at 22. But every
element must be pleaded in General Article cases. United States v. Fosler, 70 M.J.
225 (C.A.A.F. 2011 ). Fosler does not apply to inchoate offenses, United States v.
Norwood, 71 M.J. 204,206 (C.A.A.F 2012), but Article 99(3) is not one. Norwood
is therefore inapposite and the alternative holding that SGT Bergdahl 's conduct "was
indeed independently criminal," slip op. at 21, was incorrect.
32
States, 135 S. Ct. 2551, 2557 (2015), if it extends to conduct that is not otherwise
criminal.
Conclusion
Respectfully submitted.
33
Certificate of Compliance v.rith Rules 21 (b) and 37
This brief complies with the length liinitations prescribed in Rule 21 (b) be-
cause it contains 8740 words. lt also complies with the typeface and type style re-
I certify that l served and filed the foregoing supplement to the petition for
g1·ant of review on August 4, 2019, by emailing copies thereof to the Clerk of the
Et(gene R. Fidell
34
APPENDIX
A militm)' judge silting as a general coun-martial con-
victed appellant, consistent with his ple.1s, of one specifi-
--- M.J. -···, 2019 WL3210171 (Army Ct.Crim.App.)
cation of dcsc-rtion to shirk hazardous duty and one :::peci-
13 fication or misbehavior before the enemy, in violation of
Only the Westlaw citation is cu1Tcntly available.
Articles 85 and 99, Uoifonn Code of Military .Justice
U.S. Army Court of Criminal Appeals.
(UCM.l), 10 l J S C §§ 885,899 (2012). The mi litary judge
UNITED STATES, Appellee sentenced ;ippcllant to a dishonorable discharge, reduction
\ '. 10 the grade of E-1, and t.,rfciture of $ 1,000 per month for
Sergeant Robert B. BERGDAIIL, United States ten montl1s. The convening authority approved the sen-
Am1y, Appellant tence as adjudged.
ARMY 20 l 70582
16 July 2019
OPINION OF THE COURT *2 Though appellant attempted to c,;capc during the five
years he was held captive, his attempts were not ~1c.cessful.
SCI l ASHER UER, Judge: In May 20 14, the U.S. govcmrncnt exchanged appellant for
five Taliban detainees who had been held al lhe U.S. de-
• 1 AppCIJ!lnt contends \ll}lawful command influence [UCJJ
tention facility in Guantanamo l3ay, Cuba.
was so endemic to appeUan1·s trial and the post-trial pro-
cessing lhnt appellant ,vas denied a fair trial. or fair post-
After his return to U.S. control, appcllanl went through a
lJial processing, or the appearance thereof. Appellant also
alleges that the charge of misbehavior before the enemy reintegration program and was eventually assigned to duly
at f itlb. /\mly Headquarters in San Antonio, Texas. The
failed to state an offense as drafted.' We disa~e.
Commander, Fifth Anny, was told thatcou11-martialjuris-
<lictioo was retained at tbe four star level. The Director of
Although there was some evidence of unlawful command
influence adduced at trial m1d in the posH1ial process, the the Anny Staff appointed Major General (lvlG) Kenneth
!),OVemment met its burden to demonstrate that an objoctivc Dahl to investigate the facts surrounding appellant's depar-
disinterested ob,;crver would not harbor a significant doubt ture frurn OP Mesl.
as to the fairness or the proceedings.
l hc decision lO exchange dclaiJJocs for appcllanl was nol
without oont.rove1'Sy. Rolh during the investigation and ar- back on lbc battlcliclds trying to kill
tcr. various individuals made comments regarding 1his ex- everybody including us ....
change to include the Chairman of the Senate AnnOO Ser-
vices C<>mmittee (SA SC), the late Senator John McCain.
•3 And:
McCain made statements such as: ...This decision
S(..'flalOr
to bring [appellant J home - and we applaud thaL he is So wi;: get tbis dirty, roucn, no-good traitor who 20 years
home-is ill-founded ... il i!'- a mi;:.tak~>and it is putting the ago would've been shot, who 40 years ago 1hcy
lives of American !)CTViccmen and woman Ls1c j at risk. And would've done it within the first h<>ur, and who now
that lo me is unacccpLablc." Senator McCain continue-cl to mighL not, maybe nothing's gomg to happen. Don ·1 for-
make statements regardin!\ aµvellant includmg, "If ii get, wilh llergdahl we lost at least live people and I
COD)eS Olll lhat rappelJanlJ has UO J)UJ)jshmcnt~we're going watched the par(..'t1L') on televjsion., 1·ve seen the parents,
to have a hearing in the Senate Am1ed Services Commit- I've met one of the parents, who're devastated, ruined,
lc ~." destroyed. And they were killed going out to try and
bring him back, and they lost live people, probably six,
Upon conclus ion of the invcs1iga1ion, MG Dahl found that by the way. 13ut al least five people.' And we knew that
appellant lcf1 OP Mesi with the intent to shirk important be was a traitor because we had a Colonel and a General
service. The Director of the I\Jmy Staff forwarded the in- go and do the in1crviews hcforc we made lhe deal. And
vestigation to Lhc Commander~United Stnte::. Anny Forces cv(..-ryt~:>dy in the plaloon, everybody was saying he
Command, General (OI iN) Robert Ahrams, to take aeiion. walked off, he's a traitor. They said he·, a whack job but
Alkr charges were preferred, 1hc prcliminaJy hearing of- we made ,his deal knowing. Now I would' ve said ·Oh
ficer recommended the charges he rcf'crrcd lo a special
really? ue·s a lrtlitor? Pass! Let ·em have him. hc·s
court-martial that could not adjudge a discharg,c. General done. ' frankly, frankly . J would take lhal soo of a bitch,
Abran)s referre.d the case to a gcncml court-martial. f'd fly hinl back, I'd drop him right over the top, I'm
telling you. I'm telling you.
During the trial.' the defense made three separate motions
regarding UCL The first rcfom.-d 10 the impael of Senator On 24 feb111ary 20 17, the military judge issued a ruling
McCain's statements. At the time of 1.hc motjon. Sena.tor containing detailed findings of fact and conclusions of
McCain was the Chuinnan of the SASC. After considering law.' 1n his written ruling, the;; military judge concluded thal
the evidence, including the testimony of the convening au• the multitude of comm-.:nts were "troublitig. ... [T lhcy were
thonty. GEN Abrams. the military judge concluded the de- clearly made lo cnflame the passions or the voting popu·
fense did not meet its initial burden 10 show some evidence lace against his political opponent and in Mr. T,·ump's fa-
of UCJ vor." 11,e military judge found that Ll1ough the comments
were "disluthing and disnp~)()inting)) lhey did ''not rise to
After Prcsid1-,'t1l T1'1mp·s inaugur atioo. the defense.: subul.it- the level of 'some evidence· required for the defense !o
tcd a second motion lo dismiss based on a claim of UCL In ro~-ct iis initial burden. Apparent UC! must still be lJCI and
it they raised the issue or comments made by Mr. Trump !he s1..,ucmcnts of a private citi:t.ct1, evc.n if nmning for Pres-
while he was campaigning for the presidency. To support ident, cannot be unlawful command or intluence...
their motion. the defense compiled a twcnty-<..:isht minute
video of statements by then candidalc Tnuup.$ These com- On 16 October 20 17 , appellmn pleaded guilty hy excep-
ments included statements such a.5: tions and substitutions to dese11ion and pleaded guilty to
misbehavior before the enemy. Al'tcr a thorough provi·
dcncy inqui,y, the miliiary judge found appcllan,·s plea
You Lell me who makes these deals? ~owing_and voluntary and found him guilty . The sentcnc-
It's like Sergeant Bcrgdahl, right'/ mg bcanng was scheduled for the following week. Al a
So we trade a dirty rotten traitor, pre:,,; eonfcrenec, also on 16 October 201 7, the Com-
where five or maybe even six poople mander-in-Chief, President lmmp, sLaLed: "Well, I can' t
were killed when he deserted and we comroem on Bowe Bergdahl because be\ ·· as you know,
knew that U1ev were killed and we they're ·· l guess he's doing something today, a; we know.
knew he W.J.'l ; traitor. We trade for And he's also - they're selling up ,;:,;em.:nci.ng, so l'm not
five of lhc grcalt!st killers, the grcal· going to comment on him. But l th.ink people have heard
est killers in Lhc Middle Ea,;1. The my comments in the past."
five people that they wanted lhe
most. That";:,; our deal. So we gel a On 17 October 20 17, the defense made a third motion 10
traitor, and they gel five: peopl<; tl1at dj:;.iniss for apparent UCI ba.">Cd on this commc.ot by Prcsi ·
are nght now, most of them, already dem Trump. On 19 October, the convening authority
signed an affidavil Slating any decision he bad taken lo dale F~1. we will discuss appcllant' s claims of unlawful inJlu-
in appellant 's case, as well as any future decisions, would cncx:. Second, we will addrc,;s; appellant's asse,tion that
not be impacted by an outside influence. The following Charge H and its ::.p!eification foil to slale lhc offense of
day , the Staff Judge l\dvocatc (SJA) signed an affidavit misbehavior before the enemy.
also affim1ing h..:r und..:rstanding of her obligat ions under
the UCMJ. Also on 20 October 20 17, the White I louse Of-
fice of the Press Secretary for President Trump is.-ued a
"SLlitcrmmt Regarding Military Justice."' 1bc military
j udgc heard argument on the issue on 23 October 2() 17.
A. Unlawful Command Influence
*4 This time the military judge concluded that the defense Appellant claims the military juc.lgc ern,d by failing to rind
iuet its burden to provide "S(1mc c,~dcnce" that UC! ex- and remedy apparent IJC!. While we review allegations of
isted. 'l11c military judge furthc.:r conchtdcd 1hat the aovem• lJCl de novo, we review the military j udge' s finding;; or
menl failed 10 prow beyond a reasonable doubt rhal the fact made in 1uliog on a UCI motion under a clearly c-m,-
facts proffered by defense did nol c,isl or did not constitute .ncous standard. l"n iJ(•d States v. i 'illareaf. 52 M.J. 27, 30
UC!. However, the military judge found thlll the govcm- (C.I\.!\ F. 1999). Where a " military judge made detailed
ment met its burden to prove beyond a rcawnablc doubt fin.dings of fact ... and these findings are clearly supported
that the UCl would not l>e an intolerable strain on the pub- by Ilic record," we adopt them in our analysis. Id. llerc the
lic's perception o fche millbu)rjusLicc~-y~tcm.? The milit.arv milit.ary judg...:'s wriucn rulings on each of the dcfen~e mo-
judge suited that he would consider the President's con{- tions to dismiss based on UCI were well docum...:ntcd and
m<...--nL-; as mitigation evidence on sentencing. supported by the evidence; therefore we adopt them for our
analysis.
As pmi o r appellant's s~-nlcncing ar(ZuIIlc'lll. he specifically
requested the judge sentence him lo a dishonorable dis- •s Article 37(a), UCMJ, states in relevant part: " N<> p<,TSOn
charge. Pn C)r to rcquc,,iing the dishonorable discharge. the subject to this chapter may attempt to coerce or ... inOucncc
milittuy judge discu:i:sed this request aod the consequences the action of a court-martial or any 0U1er militruy tribunal
thereof at length with counsel and with appellant. l\ppel- or any member lheroo r. in reaching the findings or sentence
lant made clear to the court thal he believed the appropriate in any case ...." " l\crual unlawful influence occur.; when
punishment was a dishonorable discharge. there is an impropt..'T manipulation of the criminal justice
process which negatively affocL, the fai r handling and/or
The military j udge announced the sentence on 3 November disposition of a ca:;c." I ·11iled S1<1tes ,,. Bany. 78 M .I. 70,
201 7. lmrncdiatcly following the announcement of the sen- 77 (C.A ./\.F 20 18) ( internal quotation marks and citation
tence, President Trump posted a slal~mcnL on the ,;ocial orni11ed).
net\\·orking service Twiner that. "the dccisi<>n on Sergeant
Bcrgdabl is a complete and total disgrace to o ur Co unuy Even where there was no actual UCI , thGTC may be an ap-
and 10 our Military." The defense included U1e tweet as part 1~u.fm)1,;~ o f UCL See Cui1,>,J s·1otrs v. J.,,wrs, <,3 M.J. 405,
41) (C.!\.l\.r. 2006); / fli ted S!a/i•., V. SI011ema11, ~7 M..I.
0
J. Did the comments made by Se11ator McCain create The record shows thaLLhe convening authority had no com-
tire appearance of UC!? munication with Senator McCain or his office~ nor did any
Appellant alleges the military judge erred in denying the person in senior Army leadership (either military or civil-
dcl'c-nsc motion to dismiss or limit the potential punishment ian) atlc'lllpt to interfere with G EN Abrams as he made his
as a remedy for Senator McCain· s pre-trial comments re- referral d~-eision. Fwther. the rec-Ord c<>nlains no evidence
gardmg appeJJant, including threatening to convene a that Sc'!lator McCain aucmptcd lo lake any action fo r or
SASC hearing ii' appcll,lfll was not purtished," Though we agains.1 the convening authority or any roemhcr of the
do noLagree wilh some of the roiliLa.rJ judgc·s analysis~we court-mat1i:il.1-1
agree with the militm1• j udge ·s ultimate conclusion, Lhat
there was no apparent UCL Even if one con.d uded that a Senator's lhre~t to hold :1 hear-
ing was an attempt to coerce or influence the action of a
l',ior to issuing his ruling, the mihtary judge heard evi- convening authority, we find it did not rise to IJ:ie level of
dence on the issue, including hc.ning Lhe testimony of GEN an " intolerable strain" on the military justice s-ystcm. The
Abrams. The military judge made detailed l'indings of fact, trial judge found, and we agree, that "[a] reasonable mem-
to include that tliough GEN Abrams was aware of Senator ber of the public knowing all the facts ancl circumstances
McCain· s comments. lhc comm en Ls did not afToel him anJ would recop;n.1,c Senator McCain's ill-advised statements
he did not consider them in his decision t<> refer tlic for just what they were - political postu,ing designed to
charges. With the exception of the finding ofl'act regarding embarrass a political opponent (President Obama) and gain
the date Lhat Senator McCain lx.'Came Chainnao of the some political advantage."
SASC,0 \VC fmd nolhin.g dct1rly crrooeous in the judge~s
findings of fact and thcrci'<.irc adopt them.
Appellant alleges the miliwry judge erred by not correctly lbc military judge gave appellant an opportunity to with-
applying the test for apparent UC!, and i11stead blended his draw his p)ea. I le chose not to. Therefore. the question we
analysis between actual and apparcn11JCI. We l'ind no er- ask is how would an objective, disinterested, fully io-
ror, as we agree with the militruJ judge that appellant did fonnvc..l obs~1·ver, knowing that there is o.o actual unlawful
not meet his burden to establish any evidence of UCI - the influence, view the .sentencing proceedings when the indi-
lirst step in ~-ither ru1 actual or ap1>arent UC! case. 13cfore ,•idunl determining the sentence was this particular military
the burden shifts to the government, to prove either no prej- judge."
udice l<) the accused (actual UCI) or no intolerable strain
on the public· s pere<.'l)tion of the military justice system President Trump· swords make clear how he felt about ap-
(apparent \JCI), the defense must meet its burden. lnccndi - pellant. The actual comments were removed in time from
aty remarks by private citizens. even innucntial one..", dt> the sentence proe<,'<'dings. Although President Trump rati -
not constitute evidence of UCL" fied the comments, their impacl was lessened by lbc re-
moteness. F urthcr, the military judge, tiie SJA, and the con·
vening authority credibly explained that they were not and
would not be influenced by the P=idenl's statement.
Wh~1 comparing the facts here to tho::;~ ill Boyr:<t and
Bony, ·w e nrc stmck by differences between c.ascs where
3. Did the commenl.s made by President Trump creal(i: individuals reached oul to lhe convening authority and the
the appearance of UC/? SJA instead o f a casl:! likt! uppellant·s~ where lhccomrncots
On 16 October 2017, the milita,y judge accepted appel- wc.".fc brought l<> the attention of lhc court by the defense
lant's guilly pica. Tha, same day the Prcsidcnl was a::;kc<l iiself.
ahout appellant's case. In response, l'rci<idcnt Trump
stated, " Well, l can' t c1>mment on 13owe 13ergdahl because •9 We e<,nclud~ that under the facis in this c,csc, tl1c mili-
he's -- as you know. they're -1 guess he's doing something tary judge was correcl in finding there wns not an intolcra-
today~ as W(;; know. And be 's also ... they 're setting up sen- hle strain on the public's perception of the militai,' justice
tencing, w I'm not g()ing to comment on him. But I think system because a fully informoo observer would not harbor
people have heard my comments in the past." Defense a significant doubt as to the faimc.-ss of the pr<>eecdings.'"
counsel immediately n'tlcwc<l
.. Lhcir motion to dismiss for
apparc'llt UC!, and contended the !'resident had ratified all
or his c;arlicr conuncnls.
*8 Tiie milit:nJ judge agrcc<l witl1 appellant that this sl3lc·
mt..'Ill was a ratification of the Prcsidcnl's campaign rhclo- -f. Unl.anful C()mmund Jnfl,,ence and rhe Post,.trial Pro-
ric. Ile fotmd the "plmn meaning of the l'resident 's words cess
to any reasonable hearer could be 1ha1 in spite of knowing
The same day appellant·s sentence was announced, Presi- ing authority under Article 22, UCMJ, censuring the mili-
dent Tnimp publicly expressed his displeasure with the tary judge for appellant·s adjudged sentence. The Prcsidc'J1t
scnte-nce in a post on Twiner: " Lhc decision on Sergeant did not convene this court-martial ; therefore his tweet did
Bergdnhl is a complete and total disgrace to our Country not violate Article 37, but did violate RCM 104(a)( I)."
and to ow· MiliL:u)' ." During the seven monthsfroro the end
of appeJlant's court-martial until Lhe convening authoriry·s Having found Ll1at the l'res,dcnL' s day-of-sentencing tweet
action. Lhc President made no further comments regarding violates K C M. I 0-l(a )( I), but not Article 37, the questi,m
appellant. The defense included the tweet in its R.C.M . arises of whethc-r, and bow, to apply Lhc CAAF's Article
I I 05 submissions.,. 37 UC! jurisprudence to this situation. While neither Lh~
CAAF nor this cou,1 has addressed this issu~ head-<>n, at
Thi.: convening authorily received the post-ttia.l record, in- least two independent Lines of {()gic :-.upport. t.he conclusion
cluding uppeJlaut's !< .C.M I IOS submissions. and lhc rec- that we should apply the CAAF's /\rliclc 37, UCMJ, UCI
ommendations of the S.TA. On 23 May 2018, after consid• jurisprudence here.
c,ing al l of appeJlant's matters, including appeJlaot's spc·
cific rcquc:-;t for a dishouorab1c discharge~ lhe convening F'in;t, while the precise inclusion/exclusion lines differ
authority approved the sentence as adjudged. slightly. there is no question that the underlying intent be-
hind hoth R CM. 10~(>)(1) and Article 37 is the same.
Unlawful influence can impact any phase of a o·ial to in- That is to say, both sc-ck to insulate cow1s-martial from in-
clude the convening <luthority 's actions and the appellate appropriate outside intluence by commanders and k adc,·s,
eoUJ1. See. e.g., I/any, 7S M..1. 70 (finding the Navy l)ep- both militru, • and civilian.
uty Judge Advocate (;cncral committed UC! while advis-
ing oonvcning authority during post-trial processing). Un- Since the dawn of the UCMJ era in ( ·niter/ Stales , ..
like appellant· s al legations of UC! litigated al trial, the al- l>olwrl)', 5 l l.S.C.M.A 287. 17 C.M.R. 287 ( 19S.t ), and in
legations of UC! in the post-trial phase were raised for the I ·11i/('(/State.< v. FstrodCI, 7 lJ.S.C.M./\. 635. 23 C M.R. 99
(irsl lime on appeal. As there are no facL~ in contention, we (1957), the CAJ\F bas applied UC! j urisprudence to situa-
arc able to analy,.c the allegation on the record before us. tions in,·olving senior civilian leaders Whl!t'C those leaders
did noLfall into the black-letter CO\'erage of eirlter Article
Appd lant argues the Presidcnfs posl on Twitter consti- 37 or R.C M . l(M(a)( I).
tutes UCI because it violated R.C.M. ll).!{a)( l). /\ppcllce
contends Lhc Prcs,denrs tweet d0<.,'S not constitute UC! be- Less than five yea1'S after Lhc passagi.:: of the UCMJ, the
cause the J>rc-sidcnt can only violate R.C.M. I04(a)(l) if be CA/\r's prcdc-cessor court held in T>olierty that o policy
personally convened 1he court-mm1ial. memorandum from the Sc-crctmy uf the NaY)', interpreted
by the convening authority to rcsuict his clemency autl1or-
Ruic for Couns-Manial 104~a)( l) mirrms Article 37, ity, ·'conJlict[edl with the [UCMJ] oud mus! yield." 17
UCMJ, in mom respecL,;;. Thc...-rc is a difference which is rel- C M.R. at 2%. While the CMA did not believe lhc Na,,y
cvttnt in this case. At1iclc 37 state:,; ...No authority conven- Secretary 's policy memorandum in fact mandated separa-
ing a [gene,-..l court-martial J may censure. reprin1and. or tion. Lhe court was '·convinced the convenin~ authority
~uJn:ioni~h the court or any 01(..'ttlb<.-r, rorl 1n.ili1a,y judge ... did" -so believe::, and thus remanded lhc ca~ for a new con•
witl, respect to the i'indings or sentence adjudged by the vening authority's action. M.: see al.so J;.,tmda. 23 C.M.R
court." (emphasis added). Ruic l'or Com1s-lvfonial nL 102 (C .M.A. 1957) (addressing use of another Secretary
h>4(a)(I) ~totes "No convening autho1ity... may censure, of the Navy in~truc1jon at a court-m:1rt1al, oot.ing - although
reprimand. or i1dmoni:::h a court-martial ... or any member. we are here faced with a Secretary rather lhan a con1IUru1d
military j udge or <:<>wlsel thereof with rc~-pcct to the i'ind- diroctivc, the fonncr, emanating from the Secl'etary or a
ings or sentence adj udge<l by the CO\ut-martial. ..." (empha- service, would be even more per.ma~ive mid bring more
s is added). pressure to bear upon the members or the court than the
latter type dil'eclive,·· :ind furtller explaining that·· 1i]t was
A plain reading of /\niclc 37 leads to the conclusion thal agaim,1 Ll1is so11 or cc)mmand influence thal the Code was
Congress has prohibited a convening autl,ority from cen- initially directed.") (emphasis added); L ·11//~d Scares v. • 11·
suring the military judge for a scnLcnoc in a ca~c that he lt'n, 20 U.S.C.M./\. 117, 43 C.M.R. 157. 158 (1971) (sel-
convened. The text of R C.M. l04(a)( I) expands this to in- ling aside a se111ence in the face of yet another Secrctaiy of
clude the prohihition ot' a convening authority censuring a the Navy instruction that seemingly mandated a discharge
military judge for a sentence regardless of who convened and which was read to the court-martial panel, and explain·
the trial. ing "no cautionary instruction to tnt!mhers of I.he court that
they may disregard the announced policies of Lhcil' com-
*IO Herc we have the President, who is listed as a convcn- mander can relieve the error from prejudice.").
•1 1 Reccnlly in Boyce, 76 M..1. 242, the CAAi' applied iL, R.<..'.M l 106, consistc'<i of a single request lo have the mai-
apparent UC! jurispn1dcncc to the actions of the Secretary ler considered by a different convening authority and is ab-
of the Air Force, in a case which involved, not lhe qucs1ion sent of any formal request for clemency in the fom1 of sen-
or whether the Sccretaty was a ~convening authority," but tence roductiou.
whether she was "subject to the UCMJ," because of the ap-
plicable porlion of Article 37 at issue in lhat ca:>e. H,~vce, *12 Applying the test from Boy ce to the facts in thh. case,
7<, M.J. al 2-16, n.3." we believe a fully in.formed observer would not have 3 sig-
uificaut doubt as to the fairness of the procec'<liug. ··we fo-
In light of the foregoing, we conclude the CAAF'sapparcnl cus upon the perception of faimes.s in the mili1a1y justice
UCI juri,l)rudcncc for Article37 violations is the appropri- system a!:i viewed by a member of the public." J.ell'is, 61
ate lens thmugh which to analyze !he President's R C.M M .J. at -I 15. Ju spite of the tweet by ~1e President, we do
W-1< a)(l) violation. not be) icvc that an infooncd member of !he public would
harbor any doubt, let alone a signilkant doubt, that appel-
lant received a fair triaJ to include his chance at clem(..'ttcy ."
5. Cumulative UC/ Any member of the anncd forces who before or in the
The military judge properly analyzed the allegati()ns of presence of the enemy-
UC! as they were raised by appellant. In this opinion we
too have analy:ccd each allegation of UC! in a discrete fash-
ion. Weals,:, ask the question: is there a cumulative cJTc-ct
which, as in a cumulative error case, that denied appellant (2) shamefully abandon;;, s11rrendcrs, or delivers np any
of il fair 1rial. .<we 1 ·n ited S1au;s v. Popi!, 091\1.J. 3~K 335 command., unit, place, or military propeny which it was
(CAA F 2011 ). his duty to defend;
* 13 In a swnda.rd cumulative error case we review de novo (3) through disobedience. neglect, or intentional miscon-
the effect of all plain errors and preserved crr<>r.<. Id. Under ducL endangers the safety of any such command, wut~
the cun1ulalive-<.:t1'0t doctrine, <<a number of crro1'S. UO one place, or militru)' propc'1ty;
perhaps :,-ufficicot LO mcril reversal, iu combination ncccs- ... shall be punished by death or such other punishment
sirnte the disapprcwal of a linding." ( ·11i1ec/ S1n1,., v. Hanks.
as a cowt -ma11ial may direct.
16 M ..I. 150. 170-71 \l'.M./\. 1992) (citation and quotation
marks omiltcd). We only review actual em>rs, not just al- In relcvru11 part, Charge 11 and its specification alleged:
legations. l 0ml(•d S1a1es v. Hammer, 60 M .I. ~ I 0, 8 19 (cit-
ing l 'nited States v . ( ;auvin, 17:1 F .Jd 7<J8, ~04 ( 10th Ctr.
1999)). If aller reviewing lhc i,,'1Yors we fiod the cumulative
en-ors dG'llied appellant a fair trial, then we must reverse. l/\ppcllant did.] berorc the enemy,
See Pope. 69 M.J. at .BS. endanger the safety of Observation
Post Mest and Task Force Yukon,
Applying the logic of the cumulative error doctrine 10 alle- which it was his duty to defend, by
gations or lJC I, we look to all of the allegations of UC! intentional misconduct in that he left
which met 1he sL1ndard of"some evidence ofUCF, that is Observation Post Mcst alone; and
the pre-sentencing comment of President Trump which left without authority: and wmng-
validated bis prior comment, regarding appellant, and his fully caused search and recovery op-
tweet censwing the mililllry judge. We find the eumufativc crntions.
effect could not reasonably be perceived by a disinterested
mcmbc'!' of the public as improper command u1flllence or
otherwise uu.Jicati ve (,fan unfair prOC<.."OOing.
• 14 Thus, appellant was charged under suhsection tJ,rcc of
Article 99, specifically under the the<>!)' that he con:uuiued
intentional misconduct that endang~-rc-d OP M.:st and Task
Force (TF} Yukon. As a result, appellant was charged with
an offense consisting or 1hc following clements: (I) appel-
8. ML,hehavior before the Enem_1, lant had a duty to defend OP Mcst and TF Yukon; (2) ap-
Appellant argues Charge ll and its specification, alleging pellant committed intc'lltional misconduct by leaving OP
appellant comm itted misbehavior before the em.my . fails Mcst alone and without ::mthority . and wrongfuHy caused
to state an offense. /\ppellam preserved this issue by timely search ,md recovery operations; (3) appellant thereby en-
objection and a conditional plea at his court-martial. We dangered the safety of OP Mest and TF Yukon: and (4) lip·
review whether a :specification states an offense de novo. pdlant did so before tJ1eencmy.
l'11i1ed S1a1,·s v. Sch/off. i4 M..I. 312, 313 (C.A./\.F.
::!015)." /\ppcllanl admitted the factual predicate of the charges, but
challenges whether leaving OP Mcst alone, without author-
To state an offense, a speciricauon must allege every ele- ity, and wrongfully causing search and recovery operations
ment of the offonsc "either expressly or by necessary itn- conslitutcd "intentional miscondt1c1." Appellant's chal-
plicalion, so as lO give the accused notice and prolecl him lenge bas three components: FtrSt . appellanLargm.~ "'intcn-
againSL double jeopardy." l'niied Sla!<'s v. IJmr, 40 M..I tional misconduct'' is synonymous with independently
196, 197 (C.M.A. 199~) (citations omitted). "This is a c11minal conduct. Second, appellant asserts that because in-
tbrc-c-prong test !'equiring ( I) the essential clements of the tentional misconduct is synonymous with independently
vfft:J\~~. (2) ovlic.:c.: vfthc clrnrg e , and ( 3) protcclion agaiu& cnmmal conducL, a cbcirgc alleging imcntionul wi:,;cou<luvl
double jeopardy." Id. must allege the elements of a separate olTcnsc under the
tJCMJ. Third, appellant contends that because !he intcn- shack during the briel' bul violent enemy attack." Id. at 1153.
ti<>nal rnisconduct alleg<-"1 in Charge II and its spc-cilication The court fw1bcr observed: " 'Playing dead· is not much
includes throe clauS<-'S, e-0ch separated by a semicolon, each different fnlm ' taking cover;' ncitl1er is misconduct, per sc.
clausc must independcnlly all~ge all the clcmcnLs or a sep- Suffice it to say that we arc nol convinced bcyund a rca.
arate offense under the UCM.l. We disagrc"'C. We address sonable doubt that the behavior of tht accused, under the
each of appellant·~ argumcnL"> ln·lum. anendant circumstance!$, constituted intentional miscon-
duct within tbc meaning of Article 99 .. .:· hi.
Footnotes
Judge Saladino and Judge Ewing decided this case while on active duty.
Appellant also raised two other assignments of error : fir:.t, that the charges of desertion and misbehavior before the enemy wen~
;m unreasonable multiplication of charges for findings. Second, that military judge erred in finding appellant's guilty plea to the
charge of desertion to be prnvident. We find no error in either the military judge's decision that the chi}(ges were not an unrea-
sonable multiplication of charges ro,
findings, or in his conclusion that appellant's guilty plea was knowing and voluntary, and met
the e~ement$ or desertion to shirk hazardous duty,
' The government produced no evidence that anyone was ever killed searching for appellant. The recotd indic.1tcs that there were
several individuals injured, including setious injuries, while on missions whose primary purpose was to locate appellant, but no
deaths were attributed to these missions.
From arraignment to the announcement of sentence took almost two years. There was a voluminous amount or discovery material,
'
classification and clearance issues, and various delays.
' The government in Lum provided the entire length of the speeches to place the innammatory comments in context. The twenty-
eight minute video was distilled from forty-sOC houtS of speeches.
7 The military j udge's ruling addressed appellant's UCI motion in thret? ways: as actual UCI, as apparcnl UCI, and as unf;)ir pre-trial
publicity.
8 The statement appeared to be an adaptation of a 2013 Statement by the Secretaty of Oefcnse Chuck Hagel. That statement was a
"cleansing statement" to address comments made by !>resident Obama on punishments for sexual assault cases.
The military judge made several findings of fact regarding the appellant's election to be tried by military judge alone. The military
iudgc explained, "Under the UCMJ, that means lhal I am the decider of law, finder of fact and sentencing autho,ity in this case. I
have been on active duty for over 29 years. My mandatory retirement date i~ 1 November 2018. 1 have been a military judge for
/l('atly 13 years. I was promoted to Colonel in April 2007. I have no hop~ of or ambition for promotion beyond my current rank. My
only motivation as a military judge i.s .)nd always has been to be fair and impartial and to do justice in every case. I am completely
unaffected by any opinions President Trump may have about SGY 8ergdahl."
lO ·1his Sl..:atement was made in response to 3 reporter's question while SCn<H.or MCC~in w;:is campaigning on beh:c1lf of Senator Lind:;cy
Graham. The statemenl was made after the results of the Article 32 preliminary hearing and prioc to referral.
11 Though the findings of fact state that Senator McCain was chairman of the SASC in January 2014, it was not until January 2015,
when the Republican Party became the majority p;:irty in the Senate. that Senator McC3in became the Chairman.
" Article 2, UCMJ contains a list of "Persons subject to this chapter." Amon,g the V'arious entities listed arc, ..{4) Retired membe(s of
a ,egut.Jr component of the armed forces who are entit~d to pay." UCMJ art. 2. The military judge found thal Seoato, McCain
retired from the Navy in 1981. The military judge made no finding as to the pay status of Senator McCain.
Jl Appellant asserts the fact that the SASC plays an importar1t role in the confirmation of military officers' promotioos and positions,
and that, in the past, Senator McC.iin has threatened to hold up confirmations of military officers, is evidence of UCI. We find the
link between the role of the SASC and issues that Senator McCain may have ht!d with other Army officials and policies speculative
at best. Even assuming orguendo that the comment c:onStitutcd somP. evidence of UCI. we find the government successfully met
its burd~n and ,cmoved any taint with GEN Abrnms' testimony.
" See Executive Order No.13769, Protecting the Nation trom Teflorist entry Into the united St~tcs, 82 Fed. Reg. 8977 (2017).
In many cases, the remarks made by private citizens before trial may be relevant during voir dire of panel members and in the
analysis of the effect of pretrial publicity. In his ruling the military judge anatyted the campaign remarks as both UCI and their
impact on pretrial publicity. He cotrectly applied the law as set out in Skilling v. United Stutes, 561 U.S. 3!>8.130 S.Ct. 2896, 177
l.Ed.2d 619 (20 10), Irwin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 l.Ed.2d 7S1 (1961), ond Unircd Stares v. Groy, S1 M.J. 1 {C.A.A.F.
1999}; finding it was premature to conclude appellant could not get a rair trial without questioning any member of the venire.
ConerPSs has limited the President's ability to directly fire military officers. See 10 U.S.C. § 116l(a). l he military judge was correct
in rinding the President can take adverse action which could ultimately result in a resignation, retirement, or separation. In the
case of the co,wening authorily, t he President could relieve him of his command which would mQan that GEN Abrams would have
to retire or revert to his permanent grade of major general. See 10 U.S.C. § 601.
17
The military judee explained his conclusion as follows:
The evidence e.stablishes beyond a reasonable doubt that I am uninfluenced by the President's comments and more importanlly,
that I hold no fear of any repercussions from anyone if they do not agree with my sen tence in this case. As their affidavits make
clear, the same is true of GEN Ab-rJms .Jnd COL Berry [the SJA) with respect to their respective post-trial duties in this case. If
that were nol cnoueh, the statement by the President through his press secretary makes clear that he does not expect any
certain sentence in this case and that he does cxpc.ct me and everyo1~e c1sc involved in this case in any way to use our own
discretion and judgment and do what we think is rieht under the law. All judges, including th ose at the Army Court of Criminal
Appeals, are expected an d presumed to know and properly apply the law .
.. The military judge offered to require all tutu re persons involved in the review of appellant's case, including the convening authority
and the j udges on the Army Court of Crimir1al Appeals, to read the rncmocJndum from the White House on M ilitory Justice. The
defense demurred.
19 The government appears to .:ircue the military judge's statement that he wovl<i consider the President's statements as mit igation
evidence, while deliberating on an appropriate sentence, was an appropriate remedy for UCI. If we aireed with the government
that the military judge round apparen t UCI, an d then as a remedy considered the statements as mitigation, we would find that the
military judge did not properly cure the taint of UCI from the trial. As the government misunderstood the military j udge's ruling,
this is not an issue.
The only relief defense requested was for the convening auth ority and SJA to recuse themselves from t he post· tdal process.
21 In comins to this conclusion we considered the fact that the Rules for Courts-Martial are promulgated by the President. See UCMJ
art. 36. w e specified the question of whether the Presiderlt is bound by his own rules. We conclude that thoush the President can
change the rules without a notice and comment period, he would have to arfirmatively make the change either through exect)tive
order or statement of policy and not impliedly after violating one of t he rules. See 5 u.s.c. § 553(3)(1) [exempting rule making
procedures froin "a military or foreign affairs function of the United States").
" The CA.AF noted that the "Secretary of the Air Force is not ... subject to the UCMJ." but accepted the government's "'unequivocal(
I conce[sstonr that the CAAF's apparent UCI jurisprudence applied to its resolution of the case. Boyce, 76 MJ. at 246 n.3.
When ~nalvting this tweet, we note the Cl'n-.urf' ic: of the military judge. l his i s not to minimize the violation of R.C.M. 104(a)(l),
but to recognize that the impact on the convening authority would be different. A tweet directed at the convening authority or
exhorting action (e.g., "Will no one rid me of this meddlesome priest?"} would lead to a different conclusion.
,., General Abrams swore: "all decisioos already made by me and any future ones as the GCMCA a,e within my own discretion based
only on the law and material.s property St)bmitted to me for my review. I will continue to vigilantly guard my independent decision
making as the GCMCA as required under the Uniform Code of Military Justice. My decisions will not be impacted by any outside
influence."
The injured party in this case is the military judge, not appcll.rnt. We do not believe the President's fec-lir.g th3t appellant received
too light a sentence should drive us to then give appellant a windfall of setting aside the sentPnce he asked for and received. That
would be illogic.al and not enhance public perception of the military justice system.
,. The unite-d States military does not take hostages. The record shows that the individuals e.xchangc-d for appellant were members
of a designated enemy force- the Taliban-which were lawful targets. When t hese lawful targets came into the custoay of the
Armed Forces of the United States. they became military detainees- not "hostages.'
we (e,vicw appellant's sentence for appropriateness pursuant to our Article 66 authority. We con.sider onty the crimes for which
" appcll;:int was round guilty. Appellant pleaded gui1ty and was convicted of desertion to shirk hazardous duty and misbehavior be-
fore the enemy. He wa.s neither charged with nor convicted of being a trnitor. As with the President's earlier statements dcdarine,
,.
chat the individuals released returned lo t he battlefield, there is no evidence in the record supporting this assertion.
Appellant intertwines his atgumcnt alleging Charge II and its specification failed to state an offense with an argument that he was
imprnvident when he pleaded guilty to that charge and specification. Under appellant's theory~ the military judge abused hi-s dis-
c,ction by accepting ilppellant's guilty pica because he did not define "intentional misconduct" as mc,rning in dep~ndentty criminal
conduct w hen he explained the elements of lh<? offense to appellant prior to accepting appellant's plea. For much the same reasons
we conclude the military j udge did not err when he denied appellant's motion to dismiss Charge II and its specification for failure
to state an offense, we also conclude the military j udge did not c:1buse his discretion when he accepted appellant's plea or guilty to
that charge and specification.
During appellant's providenc~ inquiry, the military j udge asked appellant if he had any quest ions about any element of the offense
" or the definit ion of any term the military judge used. Appellant replied in the negative. Appellant further agreed that his actions in
leaving OP Mest without authority constituted intentional misconduct. We therefore reject appellant's claim on appeal that the
military judge abused his discretion by accepting appellant's plea of guilty.
While th~ military judse focus~d on the use of semicolons to separate items i n lists that contain i nternal commas. we note that
'" there are several other p,opcr uses for semicolons. See, e.g., Bryan A. Gamer, The Chicago Guide to Grammar, Usage, ond Punctu-
ation 357-60 {201G}. Ne\fertheless, w e agree with the military judge that the use of semicolon s in Charge II and its specification was
artless, and perhaps improper. Semicolons may be used in "old-fashioned styl e.. to set off a dependent clause or phrase by way of
elaboration o, explanation. fd. al 358. 11, modern use. however, the semicolon wc)Sreplaced in this role b y the dash and the c:omma.
Id.
JI To the extent appellant h as also challenged t he providence of his guilty pica, we find the oature of the charged intentional miscon-
duct was more than adnquately explained to appellant long before he ente,ed his plea. In the r uling denying appellant's m otion to
dismiss Charge II and its specification, the military judge noted that it was grammatically artless to u se semicolons to separate the
three clauses at issue. Nevertheless, he found the meaning of the specification was clear. The military judge explained the three
clauses were alleged conjunctively, as indicated by use of the word "and" between the cl;:tuses. He further explilined: "'These are
dependent clauses that mean: The accused Jett OP Mest alone and without authority and, thereby, w,ongfully caused !,earc.h and
recovery operations." By the t ime appellant pleaded guilty to Charge 11 and its specification, he plainly understood the charged
theory of liability, to which he admitted guilt.
·" The government has contended that the President's actions should be viewed t hrough the " rubdc of Due Process,"' rnther than
through the traditional application or the CAAF's UCI j u,iSp,udence. While I disagtce for the reasol\S stated by the mJjority and
find that R.C.M . 104 applies to the Pre.sident'"s actions here, I furthc, note that even where the CAAF has considered similar argu-
ments aboul civilian authorities influencing courts-martial, it has ultimately applied its t, aditional UO tests. See, e.g., Boyce, 76
M.J. at 246 n.3 {applying UO juriSp(udcnce to act ion s by the Secretary of the Air Force); United States v, Hvtchins, 72 M.J. 294,
312 -13 (2013) (Baker, C.J .• dissenting) {applying Article 37 jurisprudence "through a due process 1eos" to act ions by the Secrelary
of the Navy). T his may ultimately be a distinction without a diCfor~nce, as the CAAF's ua jurisprudence is rooted in the Oue Process
Clause. see /homos, 22 M.J. at 393, 396-97 (citing LO Chapman v. Californ,o, 386 u.s. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 {1967) for
requirement that government must disprove UCI beyon d a reasonable doubt}; Boyce, 76 MJ. at 249 n.8 tdiscussing beyond a
reasonable doubt standard and interplay with due process).
In deed, the CAAF's predecessor court went so rar as to say that t he specter of UCI was why the UCMJ was passed in the first place.
united States v. Fowle, 7 U.5.C.M.A. 349, 22 C.M.R. 139, 142 {1956) ("It was against this sort of command influence (by the Secretary
of the Navy] that the Code was initially directed:').
,. The day-of-sentencing tweet was an official statemer,t from the President, in his capacity as President. See Knight First Amendment
Institute at Columbia Univ. v. Trump, No. 18-1691-cv, 2019 WL 2937440, at '!>, 2019 U.S. App. LEXIS 20265 2, at '19 (2d Cir. 9 Jul.
2019) (slip op.) (..we conclude that the factors p ointing to t he public, non-private nature of the (Presidcl)t's Twitter) Account ... are
overwhelming,... and, t herefote, the ''President ... acts in an official capacity when he tweets").
W hile this could be viewed as appclk1nt "planting"' the i.ssue of post-trial UCI which the court addresses here, it could also be viewed
" as a valid matter in mitigation for appellar1t to inform the convening au thority that the President h{td continued to tweet ~bout his
case, to appellant's obvious detriment. Either way, the relevant issue for our purposes is that the convening authority knew about
the tweet.
,. lhe specificity and timeliness of the Pr~sident's day--of-sentendng tweet stood in contrast to his prior statements about appellant's
c.ase, which wNc either old,. or of a more general nature, or both.
" I recognize that the Article 32 preliminary hearing officer was not privy to alt of t he facts and circumstances of the parties' sentenc-
ing cases presented at appellant's court-martial, and that he based hi$ recommendation in part on the fact that, at the Article 32,
t he government did not pre-sent any evidence of casualties. However, the Article 32 preliminary hearing officer, as well as the Army
Regulation (AR) 15-6 investigating officer, both conducted thorough and impartial investigations into appellant's behavior which
led to his court-martial proceeding. Thus, their findings and fecommendations remain rclcv.mt.
UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
TOZZI, FEBBO, and WOLfG
Appellate Military Judses
OROF.R
l brie n y note two issues raised by the present petition. First, I note the issue
of civi l•military relations wben a military appellate court is asl;.ed to review the
conduct aud .speech of the civilian leaders of the military. Second. I note the
str-u ctural d ifferences in the composition of this Court as compared lo our superior
court. Compare Uniform Code of Military Justice art. 66(a), 10 U.S .C. §866(a)
(20 12) [hereinafter UCMJ], with UCMJ art. 142(b)(2)(B). However, I believe both
of these issues were sufficiently addressed by our superior court in United States v.
llutchin.<, 72 M.J. 294 (C.A.A.F. 2013) (reversing the United States Navy-Marine
Corps Court of Criminal Appeals in a ease involving unlawful command influence
from the Secretary of the Navy). At this early stage of the court-martial, and given
the high burden peri.t ioner faces in obtaining an extraordinar)" writ, I ag.ree with the
Court' s disposition of this petition.
1!:f.~
Clerk of Court
BERGDAllL-ARMY 20170114
CF: JALS-DA
JALS-GA
JALS-CCR
JALS-CCZ
JALS-CR3
J,\L$-TJ
Petitioner
Respondent
2
thou.sands of inappropriate electronic conununications, and
engaged in unwanted se.xual activity with two of lb.em. The
Nol Reported in M .,J . Rptr., 2018 \NL 6052748 appellant plied a third girl with alcohol and began an adul-
(N.M.Ct.Crim.App.) terous relationship with her. The appellant encouraged the
girls not LO disclose his conduct, and continued to so en-
Only the Westlaw citation is currently available. courage them cwn after his oJJcnscs were rcpo11cd.
U.S. Navy-Marine Corps Cowt of Criminal Appeals.
UNITED STATES of America, Appellee
V.
Nhubt1 C. C111KAKA, StaffSergcant(E-6), U.S.
Marine Corps, Appellant 8. Tbc llJ)pcllant~s court-martial
No. 2014()()25 1 We arc now concerned only with the prescntencing phase
of the t11al. During pre.sentencing, the miliLl,ry judge admit-
Decided 15 November 2018 ted a photograph of the Commandant of the Marine Corps
Appeal from the United S1s1es Navy-Marine Corps Trial with n victim's great grandfather, who was receiving the
Judiciary> Upon further review following remand from 1he Congressional Gold Medal at a ceremony. The military
United S~()(e., Court o/Appealsfi,r the Anned Forces, Mil- judge also admitted extensive testimony from the appel-
itary Judge: LtCol David M. foncs, USMC. lant 's commanding officer (CO), during which the tnal
For AppollMt: Lieutenant Doug Ottenwess;, .IAGC, USN. oounsel asked U,e CO to explain " how impc>rtant it is to set
:strong example for general dctcrrcnce·1 in the CO's re~
1;1
For Appellee: Captain B,ian !.. l'arrell, USMC. cruiiing district. The CO obliged with a long response in
which he contrasted the appellant 's o!fonses with less seri-
B<'forc Fu hon, Crisfield and Hitcsman, Appellate Mililary ous fonns of recruit<..-r misconduct. such a.~ disregarding an
Judges applicant's minor legal troubles or medical issues. The CO
appealed 10 the mc'1Tlbc1·s to award a sentence that dclivc'TCd
HJLTON, Senior Judge: a message to other recruiters: that " lilf you do this, every-
thing around you, generally speaking, is going to stop ....
There·s no way to lc.,;sen the blow. lt 's a sigruficant blow."a
• I A panel of officer and enlisted members sitting as a gen-
eral court~martial convic1ed the appellant, oonu-n1)' to bjs During argunlcUl on the scnteuw, the trial counsel re-
picas, ol' one :.-pccificalion of auempted abusive sexual con- minded the members of the CO's testimony, telling the
tact, nim: spt!cification$ or violalion of a general order, one mcrnbcrs lhal general dclerrence was a ..big is..'>uc... 'Tfbc
specification of \VTongl'ul sexual contact. one specification COl talkcd about ... the need to S<.'lld a strong message in-
of abusive sc~,,al conuict, four s-pecilications of obstruction side the Marine Corps, not just to the high schools and the
of justice~ one =->pccification of indecent languag~. and one conumm.ity , but for all the ... recruiters out there right now
spccific<1tion of adultery, in violation of Articles 80, 92. . ... "• TTc then asked the members lo award a seotencc tha1
120, and 134, Uniform Code of Military .Justice (UCMJ).' included wn rears' confincmcut. The members awarded
The member., sentenced the appellant to touil forfeitw·es, one thai included l2 years' confinement.
J'o.!duction to pay gr.idc E- L, 12 y~ars• confinement, and a
dishonorab\e discharp.c. TIit! crnwcning authority approved
lhc scnlonce as adjudged.
C. Appellate hi.story
This c;i.se is before us for a third time. On 24 June 2015, we
set aside U1econvcn.ing authority 's action so (hat the appel·
I. BACKGROUND lant coukl submit clemency matters. Tn his <..-'flsuing action,
the convening authority disapproved confinemmt in excess
of lcn y~a.rs as an act or clemency. A(ter the case was re-
tumcd to us, we considered 13 assignments of error.~ A few
A. Factual baclq:round
of these a.ssignm~nts of error arc relevant now.
The appellant was a rc:;:.eroiter. In the course of his duties.
he met four female high school students who were inlcr- *2 We agfced with the appcll:mt that Lhtcc of the four ob-
eslet! in \x,'\Xlming Marines. The appellant sent the girls
stn1ction spccilication:-- rcprc:;i.:ntcd an uoJeasonablc multi- a court-martial or any otl,er military tribunal or any mem-
plicmion of charges, and consolidated them into one spi.:c- ber thereof, in rcach,ng the findings or sentence in any
ification. We found that the military judge abused his dis- case, or the act.ion of any c<)nvcnins ... authority with re-
cretion under Mil ital} Rule or F.\'idt'nce 401 when he ad- spect to his judicial acts."" UCI can be actual or appar<.-nl,
mitted testimony about the anti-misconduct campaign Op- and we review cases for UC! de novo. 11
eration Restore Vigilance.' We also found that the military
judge abused his di:-crction under Rule fu1 (\)u1is-Ma.rttal We understand the CJ\AF 's mandate in this case to require
!00 I wh~-n he admitted the testimony from the appellanr s us to determine whether the appellant's sentence was ot·.
CO urging a harsh scntcnoc that would provide !(eneral de- fected by either actual or apparent UC!. The tc,;ts for actual
terrence.' We did not fin<l, however> that the militat)' judge and apparent lJCI are similar, though not identical.
erred by admitting the photograph of the Commandan~ and
we did not !ind that the appellam' s t,-ial had been atlcctcd Under the familiar burden-shilling test announced by the
by unlawful command influence (UC\). C/\AF in United States v. Biagose, to prevail on a claim of
•cmal unlawful comm,u,d influence, the appellant must
We reassessed the appellant's sentence, approving a sen- preliminarily show: (I) facts which. if true. constitute un-
tence of total forfoitures, reduction to pay grade F.- 1, con- lawful command influence; (2) that die proceedings we-re
finement for five years, and a dishonorable discharge. unfair; and (3) that the unlawful co1mnand influence was
the cause of the unfairness." The initial burden of showing
The Court of Appeals for the Armed Forces (CAAf) potcotial unlawful command in11ucnce is low, bill is more
grnnloo re,~ew. That court found that the CO's appeal to than mere allegation or spccula11on." ·rhe quanLum or i.:vi-
1nembers for a harsh st.'11h.,'11CC constituted :;omc cvi<lcuc..:e of dence required to raise \nllawful command inJ1ucnoi.: is
UC! on the preselllencingportion of !he c:isc.• l n a foob1ote, "some evidence. ~· 1••
the CAAF also wrote that they were "concemcd about the
admission of 1hc Commandam's photograph,- but did not *J Once an is.'5uc or actual unlawful command influence is
decide whether admis.,ion of the photograph constituted raised by some evidence~ the burd(.'tl shifis to the govern-
solllc cvi<lenet: uf UCL' Before the CAAf > tbc govt..wmcnl ment 10 rebut the allegation beyond a reasonable doubt that
had urged that any prejudice as.i<>Ciat<Xl with possible UC! (J) the predicate facts do not e~ist; (2) the facts do not con-
had been c1.1ri.:d by our ~l::>:«:..">sm..:nt ,>r th~ aprx.:lhu1t ·s sen- stitute un.la.wful command io.flucncc; <)t" (3) the unlawful
tence. But the CAAF noted that we had gi-snted relief be- command influence did not affoct the findings or :-:.en-
cause of an unreasonable multiplication of charges and ev- tence. r
iden1ia1y eJTors, not UCI." The CAAi' remanded the case
so that we could Jctcn.nioc whG:lhcr the c:)sc was affecled We have been specific.ally directed to evaluate the sentenc-
hy UC! and. if it was, whether any additional sentencing ing portion of ~iis case in light of the CAAF's decision io
relief is warranted. 11 United States v. !Joyce." In Boyce, the CAAF announced a
two-pronged Lest ror upparent UCL To prevail, the appel-
We conclude that actual UCI affected the appellant's c•se. lant must show facts, ,vhich if 1n1c. would constitute UCL
"A'c further conclu<li.: that our earlier relief for unreasonable Second, he must show that the lJC I placc-d an intolerable
multipl ication uf charges and evidentiruy eJTor, though strain on the public's perception of the military justice sys-
suhslantial, docs not c<>mplctcly c.xtinguish tl1c possibility tem because an objective, disinterested observer, i'ully in-
that the appellant was prejudiced by UC I. Weeoncludeth:it formed of all the facts and circum,1anoes, would harbor a
we arc able lO fashion a remedy that cures, beyond a rea- significant doub1 about the fairness of the prooecdit1~."
sonable doub~ any possible prejudice and upholds public
confidence in 1hc prococdings. The Boyce court set forth an analytical framework for
courts to use in applying this ~tandard. First, an appellant
must show some evidence that UCl occu1Tcd!" This is a
low burden, but the showing must consist of more than
"mere speculation.,,~,
ll. DISCUSSION Once im appellant prc~n.L:s some evidence of UCI, lhc bur-
den shif\s to the govenunent to prove beyond a reasonable
doubt that "either the predicate facts proITered by the ap-
pellant do not exist, or the facts as presented do not consti-
A. Law applicable lo UCI tute unlawfol comm:md influence. •-:! ff the govcmJJ'lCTll
The prohibition against UCJ is codified in /\ 111cle 37,
meets lhi~ burden, no fw1her analysis is necc::;sary.:i
UCMJ, which states in part, ··[nJo person subject 10 this
chapter may attempt to coerce or ... influence the action of " If the govenunenl does not meet it~ burden of rcbuuing
the allegation at this lllilial stage. lhcn the govemmcnt may The CO's testimony was prcsemed and considered by Lhe
next :;eek to prove beyond a reasonable doubt that the un- memb<.-rs, and it represents at leasl some evidence or UC!.
lawful co1mnand influence did not place ·an in1olcrablc The C/\/\F has directed us to use the applicable lJCJ frame-
strain · upon the public's perception of the military justice work to dc.tennine whet.her the proceedings were aft"ectcd
,,.stem and that 'an objective disinterested observer, fully by \JCI. Our eru:lier reassessment under United States v.
infonncd or all lhc fact~ and circuLnsto.nccs, would not har- Sales was appropriate lo our initial conclusion. Blll we are
bor a significant doubt about the fairness of the proceed- nol inclined lo rdy oo that rcasscsstUent to sati~fy
ing."" "/\ determination the appellant was not personally Biagose' s second prong. Additionally. the CA/\f directed
prejudiced. or 1ha1 the prejudice caused by the UC l was us to consider whether the admission of the picture of the
later cured, is .:.1 ::;ip.o.ificant factor to which we must give victim ·s great grandfather with the Commandant prcju.
considerable weight when deciding whclhc'f the UC! diced the appeUant by insc-rLing the Commandant into the
placed an 'intolerable strain' on !he public's perception of deliberation room. We did not consider the admission or
lhe milit..:u)' justice $)'stem.''!$ Out such a dctcnnination is this picture in our previous sentence reasses..~mcnt. We
not dispositive. Rather, we will consider the totality of the therefore cannot rely enlin.:ly on our earlier analysis to de-
evidence ,n evaluating allcgod appan.'llt UC!." termine thaL Ihc prc-dicate facts do nol csist.
2. Apparent OCI
Judge IUTESMAN and Judge CRISFIELD concur.
We next consider whether the case is affocl~-d by apparent
UCI using the framework 1.bc CAAF announced in Boyce.
Footnotes
Record at 871.
3 Id. at 872.
Id. at 892•93.
See generally United States v. Chikoka, No. 201400251, unpub. op. (N-M . Ct. Crim. App. 12 Apr. 2016).
C MILITARY RULE OF EVIDENCE (M IL R. lVI D.) d0 3, MANUAL FOR COURTS-MARTIAL (MCM), UNITED STATES (2012 ed.),
1 RUtE FOR COURTS.-MART!At (R.C.M.) 1001, MCM, UNITED STATES (2012 ed.).
• United States v. Chikaka, 76 M.J. 310,313 (C.A.A.F. 2017) .
• Id. n.S.
,o Id. at 314.
11
Id.
Id. at 249.
'° Id.
22
Id.
" Id.
Id. at 249-50.
Id. at 248, n 5.
,. Id. at 249.
33 See United States v. Easterly, No. 201300067, unpublished op. {N·M. Ct. Crim. App. 31 Jan 2014) {describing the Commandant's
"Heritage Tour' and the related effott to curb indiscipline in the Marine Corps).
Id. at 248, ,, . S.
Article 37(a), UCMJ
(2) quits his unit, organization, or place of duty with intent to avoid hazardous duty
or to shirk important service; . .
is guilty of desertion.
Any member of the armed forces who before or in the presence of the enemy- . ..