CAAF will hear the final oral argument of the October 2016 term in the Marine Corps case of United States v. Chikaka, No. 16-0586/MC (CAAFlog case page), on Tuesday, May 23, 2017, at 9:30 a.m. The court granted review of two issues, but only the first issue will get the court’s attention (as the second was resolved in favor of the Government in McClour):
I. Where the military judge admitted on the merits a campaign plan to “fully operationalize the Commandant’s guidance” from the Heritage Tour, and then during sentencing admitted a picture of the Commandant and allowed Appellant’s commanding officer to testify that it was important for the members to adjudge a harsh sentence, did the lower court err in failing to find evidence of unlawful command influence sufficient to shift the burden to the Government to disprove unlawful command influence in this case?
II. Whether the military judge erred when he instructed the members, “if, based on your consideration of the evidence, you are firmly convinced that the accused is guilty of the crime charged, you must find him guilty,” where such an instruction is in violation of United States v. Martin Linen Supply Co., 430 U.S. 564, 572-73 (1977), and there is inconsistent application between the services of the instructions relating to when members must or should convict an accused.
Staff Sergeant (E-6) Chikaka was convicted contrary to his pleas of not guilty, by a general composed of members with enlisted representation, of attempted abusive sexual contact (as a lesser-included offense of abusive sexual contact), wrongful sexual contact, abusive sexual contact, nine specifications of violating general orders, four specifications of obstructing justice, one specification of indecent language, and one specification of adultery. The adjudged and initially-approved sentence was confinement for 12 years, reduction to E-1, total forfeitures, and a dishonorable discharge. A second convening authority’s action (after the Navy-Marine Corps CCA found error in the post-trial processing) reduced the confinement to 10 years. The CCA further reduced the sentence to confinement to five years.
Chikaka’s convictions arose from his improper relationships with prospective Marine Corps applicants while serving as a recruiter in Douglasville, Georgia, in 2012. But CAAF’s review will focus on something else that happened that year: a presentation given multiple times by then-Commandant of the Marine Corps General James Amos known as the Heritage Brief.
The Heritage Brief was the focus of our #4 Military Justice Story of 2014, and I wrote a lengthy post discussing the Heritage Brief (in the context of a different case) in August of that year. Much of what I wrote then applies equally to Chikaka:
In March 2012, and seemingly totally unrelated to this case, the Commandant of the Marine Corps issued White Letter 1-12, which was a letter to Marine leaders on the subject of “Leadership and Conduct,” and it referenced “a number of recent, widely-publicized incidents [that] have brought discredit on the Marine Corps and reverberated at the strategic level.” The Commandant then began a tour of Marine Corps installations during which he gave a presentation that became known as the “Heritage Brief.” A video of the presentation was also posted on the Marine Corps website (video available here), and the version given at Marine Corps Recruit Depot Parris Island was transcribed (transcript available here).
Whether you watch the video or read the transcript, you’ll see that the Heritage Brief was a blunt message from the Commandant about misconduct and its effect on the Marine Corps. Sexual assault and the Corps’ response to sexual assault issues was a major theme. So too were the sentences adjudged by courts-martial and the decisions of administrative boards.
The Commandant followed his Heritage Brief tour with White Letter 2-12, dated May 3, 2012, and entitled “Sexual Assault.” This White Letter focused on the Commandant’s concern with the sexual assault issue and his desire to focus the Corps on addressing it. Alone the White Letter was uncontroversial, but when coupled with things the Commandant said during the Heritage Brief, it caused some to raise questions of unlawful command influence.
The facts of Chikaka go beyond the Heritage Brief, as Chikaka’s commanding officer, Colonel (Col) Bowers:
signed and implemented the “6th MCD Operation ‘Restore Vigilance’ Campaign Plan.” The plan applied to all members of 6MCD by “ensuring there is strict accountability at every level of the command up to and including myself.”Col Bowers intended the plan to “fully operationalize the Commandant’s guidance” stemming from the Heritage Brief.
App. Br. at 7. This campaign plan was introduced during the findings phase of the court-martial when the commanding officer was called as a prosecution witness to testify about how Chikaka’s conduct was prejudicial to good order and discipline. The military judge initially sustained a defense objection to admission of the campaign plan, but then:
he later reconsidered his Ruling and admitted the Campaign Plan. He instructed the Members that the Campaign Plan was relevant to the Article 134 charges involving LW, and any other Article 134 charges relating to misconduct that occurred after the Campaign Plan was issued, in order to demonstrate prejudice to good order and discipline. He instructed the Members to consider it “within those constraints.”
Gov’t Div. Br. at 5 (citations to record omitted).
Additionally, during the sentencing phase of the court-martial the prosecution also introduced a picture of General Amos standing with the grandfather of one of the alleged victims (the grandfather had just received the Congressional Gold Medal). See App. Br. at 8 (showing picture).
Finally, also during the sentencing phase, the prosecution asked Chikaka’s immediate supervisor the following question:
Can you explain to the members how important it is to set a strong example for general deterrence in 6th Marine Corps District as a whole?
App. Br. at 10. Unsurprisingly, the witness gave an answer that encouraged the members adjudge a harsh sentence. The defense, however, did not object.
Chikaka’s counsel never raised the issue of unlawful command influence (UCI) at trial, but they raised it on appeal. The CCA rejected the claim in a lengthy opinion that found that admission of the campaign plan was error but that it was harmless for findings, found no error in the admission of the photo, but found prejudicial error in the sentencing testimony of Chikaka’s superior. The CCA then reduced the sentence as a remedy.
But Chikaka seeks a new trial:
The appropriate remedy is a dismissal of all charges with a rehearing authorized. The inability to perform an effective Dubay hearing, both the Military Judge and the lower court failing to shift the burden to the Government to disprove UCI or its impact, and the overwhelming prejudice discussed above all necessitate a new trial for SSgt Chikaka free of the taint introduced at his first court-martial. The wrongly introduced evidence and testimony impacted both the merits and sentencing portion of the trial. There is no way to separate the UCI in this case from the outcome.
App. Br. at 23.
The Navy-Marine Corps Appellate Defense Division responds that “no disinterested member of the public, fully informed of all the facts, would harbor significant doubt about the fairness of Appellant’s court-martial.” Gov’t Div. Br. at 27. But its brief is overwrought:
[A]fter the lower Court issued the Howell opinion in May 2014, Appellant waited 532 days before ever raising unlawful command influence based on these extra-Record facts. And Appellant, even now, does not allege ineffective assistance of counsel for his Trial Defense Counsel or Appellate Counsel not raising the matter earlier or asking for a DuBay hearing. Now, he asks for Findings and Sentence to be fully set aside. He could have asked the Convening Authority immediately for an Article 39(a) to address the Howell decision after his sentencing in March 2014. He could have asked the lower court to address his concerns for immediate voir dire of the Members. Instead he waited—while his confinement ran, and the opportunities of reviewing authorities to address his concerns quickly diminished—and now Appellant asks this Court for complete relief. If anything, the public sees bald opportunism—not unlawful command influence.
App. Div. Br. at 28-29. Chikaka’s claim of unlawful influence is certainly tardy, and that likely counts against him. The failure to object may present an inference that the defense believed there was no improper influence. Cf. United States v. Foster, 64 M.J. 331, 333 (C.A.A.F. 2007) (failure to object to alleged partisan action by military judge may present such inference). Furthermore, the CCA’s remedy of reducing the sentence seems to be an adequate curative measure in a case where the evidence of guilt appears to be strong. But the Government Division’s brief overplay its hand.
A reply brief from Chikaka, however, makes an odd claim:
Whether or not evidence is relevant is wholly irrelevant to an appropriate analysis of UCI. Evidence can be relevant and still tainted by UCI. An MRE 403 balancing test, even if done correctly, may fail to weigh, or even acknowledge the presence of UCI.
Reply Br. at 2.
Mil. R. Evid. 402 states the general rule of admissibility for relevant evidence:
Rule 402. General admissibility of relevant evidence
(a) Relevant evidence is admissible unless any of the following provides otherwise:
(1) the United States Constitution as it applies to members of the Armed Forces;
(2) a federal statute applicable to trial by courts-martial;
(3) these rules; or
(4) this Manual.
(b) Irrelevant evidence is not admissible.
(emphasis added). One such federal statute applicable to trial by courts-martial is the prohibition against unlawful command influence in Article 37, 10 U.S.C. § 837. Accordingly, I don’t think it’s accurate to say that the relevance of evidence has no bearing on the analysis of the existence of unlawful influence. Rather, the potential for unlawful influence is a factor to be considered when determining whether otherwise-relevant evidence should be admitted. Precisely how that factor is balanced, however, seems to be an open question; particularly in a case where the defense does not make a timely objection.
Ultimately, Chikaka’s argument boils down to the claim that the prosecution injected the Heritage Brief into the court-martial:
The Government attempted to inject the Commandant into all aspects of the court-martial. From the introduction of his photograph to Prosecution Exhibit 14 and the campaign plan, the Commandant’s presence permeated the court-martial. While Gen Amos did not personally sit in the gallery, the Government made sure his presence was felt at all stages, including via a photograph that had no bearing on victim impact.
Reply. Br. at 6. Considering this, I anticipate that CAAF will wonder why, if the Commandant’s presence was felt at all stages of the court-martial, there was no objection on the basis of unlawful command influence.