In United States v. Dundon, No. 38436 (A.F. Ct. Crim. App. Feb. 27, 2015) (link to slip op.), a three-judge panel of the AFCCA considers and rejects the appellant’s post-trial assertion of unlawful command influence related to “a sexual assault prevention all-call briefing that occurred the week prior to trial.” Slip op. at 2. But the panel considers the asserted error despite the fact that the appellant tried to waive the issue at trial:
In a discussion with the military judge, the appellant agreed with his counsel’s assessment that the facts brought out in his case so far did not raise the issue of unlawful command influence. After the military judge explained the potential relief the appellant could receive if such improper influence was found, the appellant agreed he wanted to “affirmatively waive any adjudicatory UCI [unlawful command influence] that may have been brought up by the facts in this case,” in order to retain the benefit of his pretrial agreement. He also signed a document which stated that the pretrial agreement precludes the military judge or any appellate court “from having the opportunity to determine if [he is] entitled to any relief” on his unlawful command influence issue and that he was agreeing to this provision in order to get the benefit of the pretrial agreement.
Slip op. at 4. The CCA notes that CAAF “has not applied waiver to issues of unlawful command influence arising during the adjudicative process, as it has for those arising during the accusatorial process.” Slip op. at 5.
Writing for the panel, Senior Judge Hecker adds this footnote:
Although our resolution of this case ultimately favors the Government, consideration of the case for certification by the Judge Advocate General under Article 67(a)(2) would appear to be particularly appropriate in view of (1) the potential inconsistency between the Court of Appeals’ precedents on waiver, adjudicative unlawful command influence, and member challenges; and (2) the importance of clear guidance to military courts and the service members who appear before them.
Slip op. at 2 n.1 (citations omitted).