CAAF decided the Marine Corps case of United States v. Chikaka, 76 M.J. 310, No. 16-0586/MC (CAAFlog case page) (link to slip op.), on Tuesday, June 20, 2017. A short opinion finds that the sentencing-phase testimony of the appellant’s commanding officer, that opined in favor of a harsher sentence, constitutes some evidence of unlawful command influence (UCI) sufficient to require further review by the Navy-Marine Corps Court of Criminal Appeals. CAAF reverses the CCA’s decision that found no merit in the assertion of UCI and remands for further consideration.

Judge Ohlson writes for a unanimous court.

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. Chikaka’s convictions arose from his improper relationships with prospective Marine Corps applicants while serving as a recruiter in Douglasville, Georgia, in 2012.

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 then further reduced the confinement portion of the sentence to 5 years.

During the sentencing phase of the court-martial the prosecution offered and the military judge admitted two things that Chikaka asserted on appeal constituted UCI:

First, the military judge admitted a photograph of the Commandant of the Marine Corps shaking hands with one victim’s great grandfather who was receiving the Congressional Gold Medal. Second, the military judge permitted Appellant’s commanding officer to testify as follows when trial counsel asked him to explain “how important it is to set a strong example for general deterrence in [the Sixth] Marine Corps District as a whole.”

Slip op. at 2. Chikaka also argued that findings-stage testimony about a campaign plan based on the Heritage Brief – the focus of our #4 Military Justice Story of 2014 – was also UCI.

The CCA found error in the commander’s testimony. The error was not, however, based on UCI. Rather, “the CCA more generally held that Appellant’s claim of unlawful command influence was ‘without merit.'” Slip op. at 4 (quoting CCA op.). And the CCA’s reduction of the sentence was for non-UCI reasons.

CAAF then granted review of two issues:

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.

In today’s opinion Judge Ohlson explains that the commander’s testimony alone, in support of a harsh sentence, constitutes some evidence of UCI. CAAF doesn’t reach the question of whether the picture is also evidence of UCI, and Judge Ohlson also explains that there is no evidence that the campaign plan or the Heritage Brief caused UCI in this case. The second granted issue is rejected in light of United States v. McClour, 76 M.J. 23 (C.A.A.F. Jan. 24, 2017) (CAAFlog case page).

Juge Ohlson’s analysis is short, beginning with a brief statement of the legal test:

We review allegations of unlawful command influence de novo. United States v. Salyer, 72 M.J. 415, 423–24 (C.A.A.F. 2013). In conducting this review, we first must determine whether an appellant has met his or her initial burden of presenting “some evidence” of unlawful command influence. See United States v. Boyce, 76 M.J. 242, 249 (C.A.A.F. 2017). This “some evidence” standard is low, although an appellant must allege “more than mere allegation or speculation.” Salyer, 72 M.J. at 423. Once an appellant has met this initial evidentiary burden, the burden shifts to the government to rebut the allegation of UCI beyond a reasonable doubt. Id.

Slip op. at 5.

Chikaka does not meet his initial burden regarding the findings phase of the court-martial:

[W]e conclude that Appellant has failed to show “some evidence” of UCI during the findings portion of his court-martial. . .

Slip op. at 5. He does, however, meet his burden regarding the sentencing phase:

In United States v. Ohrt, we indicated that the use of “a commanding officer before a court-martial … to influence the court members into returning a particular sentence” implicates unlawful command influence. 28 M.J. 301, 303 (C.M.A. 1989). Specifically, we stated: “The question of appropriateness of punishment is one which must be decided by the court-martial; it cannot be usurped by a witness.” Id. at 305. Similarly, in United States v. Cherry, we held that “a commander’s opinion as to an appropriate punishment …. invade[s] the province of the court-martial and constitute[s] unlawful command influence.” 31 M.J. 1, 5 (C.M.A. 1990) (citations omitted). And yet, despite this long-standing precedent, Appellant’s commanding officer, who outranked the entire panel and was within the chain of command of at least one member, was permitted to testify at some length about the importance of a harsh sentence being imposed by the court-martial. We conclude that this testimony constituted “some evidence” of unlawful command influence.

Slip op. at 6.

Judge Ohlson concludes by considering the Navy-Marine Corps Appellate Government Division’s argument that Chikaka already received sentencing relief from the CCA and that such relief “remedied any unlawful command influence in Appellant’s case.” Slip op. at 6. CAAF rejects this contention outright:

the CCA did not grant relief on the basis of unlawful command influence. Instead, the CCA reassessed Appellant’s sentence because of evidentiary error and unreasonable multiplication of charges. Thus, the issue of unlawful command influence remains unresolved for purposes of sentencing.

Slip op. at 6-7

CAAF remands the case for further consideration in light of the court’s recent decision in United States v. Boyce, 76 M.J. 242 (C.A.A.F. May 22, 2017) (CAAFlog case page).

Case Links:
• NMCCA oral argument audio
• NMCCA opinion
• Appellant’s brief
• Appellee’s (Navy-Marine Corps App. Gov’t Div.) brief
• Appellant’s brief
• Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

6 Responses to “Opinion Analysis: The commanding officer’s testimony about the importance of a harsh sentence is some evidence of unlawful command influence in United States v. Chikaka, No. 16-0586/MC”

  1. Vulture says:

    Whatever those guys at the Navy and Marine Corps Defense Appellate office are doing, they need to package it up and sell it.  This is a lot of how the Commander can influence things for good and bad coming out of these rulings lately.  A subject that needed attention.

  2. John O'Connor says:

    Thus is entirely self-inflicted.  The members had just convicted a staff NCO of some pretty serious misconduct involving prospective Marines when he was assigned to recruit them.  Do you really think you need to put in a witness in order to make a compelling general deterrence argument on sentencing?  O’Connor’s Law:  Trial counsel shalt not create appellate risk by pushing the envelope to admit evidence you don’t need. 

  3. Westpointquaker says:

    IMHO, the trial judge (David M Jones) should be shot for letting in this evidence.  One of the well learned laws of trial judging:  Never, ever let TC screw up a perfectly good conviction in sentencing. 

  4. k fischer says:

    WP Quaker,
     
    The MJ should be shot?   Like…..with a gun?  You guys have come a long way since 1660, my friend. 
     
    I think that he possibly could just removed from the bench and permitted to live, but maybe I’m getting soft in my old age in todays’ dog eat devil dog world.

  5. Benched says:

    I think that he possibly could just removed from the bench and permitted to live, but maybe I’m getting soft in my old age in todays’ dog eat devil dog world.

    Well he did recently leave the bench . . . for the appellate bench. He authored the recent NMCCA opinion in the Maj Thompson case.

  6. Christian Deichert says:

    …campaign plan to “fully operationalize the Commandant’s guidance” from the Heritage Tour…
     
    Objection — relevance.
     
    …photograph of the Commandant of the Marine Corps shaking hands with one victim’s great grandfather who was receiving the Congressional Gold Medal…
     
    Objection — relevance; improper sentencing evidence under RCM 1001.
     
    …“how important it is to set a strong example for general deterrence in [the Sixth] Marine Corps District as a whole”…
     
    Objection — relevance, improper sentencing evidence under RCM 1001.