CAAF decided the Coast Guard case of United States v. Riesbeck, 77 M.J. 154, No. 17-0208/CG (CAAFlog case page) (link to slip op.), on Tuesday, January 23, 2018. Finding that gender was improperly used as a criteria for selection of the members of the court-martial, categorizing that as an “obvious error,” labeling the post-trial review of that error up to this point “a stain on the military justice system,” and emphasizing that “the Government, set on arguing that there was no error, hasn’t even claimed to meet its burden to show the error was harmless,” CAAF sets aside the findings and orders the charges dismissed with prejudice.

Judge Ryan writes for a unanimous court.

A general court-martial composed of members with enlisted representation convicted Boatswain’s Mate Second Class (E-5) Riesbeck, contrary to his pleas of not guilty, of making false official statements, forcible rape, and communicating indecent language, in violation of Articles 107, 120, and 134. The panel sentenced Riesbeck to confinement for three months, reduction to E-2, and a bad-conduct discharge.

That panel, however, had remarkable demographics: “the seven-member panel that convicted and sentenced Appellant was composed of five women, four of whom were victim advocates – persons trained to provide support and counseling to victims of rape and sexual assault – and two men.” Slip op. at 1. CAAF granted review of two issues (both specified by the court) regarding that composition:

I. Whether the members of Appellant’s court-martial panel were properly selected.

II. Whether Appellant was deprived of a fair trial, or the appearance of a fair trial, where a majority of the panel members were former victim advocates and the military judge denied a challenge for cause against one of them

Today’s opinion doesn’t address Issue II because in resolving Issue I the court concludes that:

[T]he error in this case is both so obvious and so egregious that it adversely affected not only Appellant’s right to a fair trial by an impartial panel, but also the essential fairness and integrity of the military justice system. We thus decline to authorize a rehearing, and order that the charges and specifications be dismissed with prejudice.

Due to the patent and intolerable efforts to manipulate the member selection process, contra every requirement of the law, the failures of the military judge, the DuBay military judge, and the CGCCA, to investigate, recognize, or ameliorate the clear court stacking in this case, and the actual prejudice to the Appellant of being tried by a panel cherry-picked for the Government, dismissal with prejudice is the only remedy that can eradicate the unlawful command influence and ensure the public perception of fairness in the military justice system.

Slip op. at 18 (marks and citations omitted) (paragraphing added).

Riesbeck was tried in 2012. We first discussed his case here, reviewing the Coast Guard CCA’s 2014 decision that found the issue of improper panel selection waived by the failure to make a timely objection. CAAF summarily reversed and remanded for further review (noted here). The CCA then ordered a DuBay (post-trial fact-finding) hearing, heard oral argument (noted here), and issued a new decision (available here) that again affirmed the findings and sentence.

CAAF then granted review a second time (noted here), leading to its decision today. But the court is clearly unhappy to see this case again:

The fact that this case with these facts is returned to us for a second time, rather than attended to at trial, at the DuBay hearing, or by the CGCCA, is a stain on the military justice system. The duty to protect servicemembers against unlawful command influence is not ours alone: “Military judges must continue to fulfill their essential role as the ‘sentinel’ of the military justice system in identifying and addressing instances of unlawful command influence. Moreover, judges on the service Courts of Criminal Appeals must also appropriately address unlawful command influence whenever they encounter it in specific cases.” United States v. Boyce, 76 M.J. 242, 253 n.9 (C.A.A.F. 2017) (citations omitted).

Slip op. at 4 n.6 (emphasis added).

These facts include that at trial the defense challenged the panel composition, asserting “that there was no ‘conceivable, rational or logical reason’ for seven of [original] ten members to be women, five of whom were victim advocates.” Slip op. at 4. But, Judge Ryan explains, “the military judge denied the motion as untimely while blithely asserting the issues could be worked out on appeal rather than actually investigating the allegation.” Slip op. at 4. Then, even “though he had raised the issue at trial, the CGCCA held that Appellant waived his objection to improper member selection and affirmed the findings and sentence.” Slip op. at 4.

That instance of waiver mania precipitated CAAF’s first reversal and the DuBay hearing.

The military judge who conducted the DuBay hearing made extensive findings of fact, and Judge Ryan provides them as an Appendix to the opinion. The findings of fact begin:

It is indisputable that in and around 2012, senior Coast Guard and DoD leadership faced intense external pressure to do more about preventing and responding to sexual assaults.

Slip op. app. at 1. For anyone who was paying attention in 2012, this fact is obvious. The politicization of the military’s response to sexual assault was the #1 Military Justice Story of 2012. But the DuBay judge also made findings about:

a statement on the PACAREA web site attributed to the (then) Area Commander, VADM Zukunft on the topic of sexual assault prevention. The statement was written or approved by him in June 2012 as part of his “Commander’s lntent.” It refers to all personnel under his command as “immediate family” and expresses intolerance of all acts of sexual assault that undermine the “well-being of my family tree.” It implies, to an extent, that a service member accused of sexual assault is automatically expelled from the family.

Slip op. app. at 7. Zunkunft is now a full Admiral and Commandant of the Coast Guard. But back in 2012 he was just the last of four convening authorities involved in the selection of members for this case, ostensibly making him the person with ultimate responsibility for the problematic panel that CAAF finds denied Riesbeck a fair trial. See slip op. at 7. However,

ADM Zukunft’s stipulated testimony revealed that he was not aware of the requirements of Article 25, UCMJ, and believed that member selection was not a best qualified process, but did look for diversity when selecting members.

Slip op. at 7. That’s bad, because military justice is – or at least is supposed to be – one of the primary responsibilities of a commander, and so it’s hard to understand how the Commandant of the Coast Guard can be so wrong about his duty to select members of a court-martial.

Congress established criteria for member selection in Article 25, and Judge Ryan’s opinion explains that these criteria are important because “courts-martial are not subject to the jury trial requirements of the Sixth Amendment, and, therefore, military members are not afforded a trial in front of a representative cross section of the military community.” Slip op. at 10 (citation omitted). Accordingly, “in part, it is for this reason that that even reasonable doubt concerning the use of impermissible selection criteria for members cannot be tolerated.” Slip op. at 10 (citations omitted). The Coast Guard CCA, however, “concluded that detailing members based on gender fosters inclusiveness of all segments of the military community and is benign.” Slip op. at 9 (quoting CCA’s second opinion at 14-15) (marks and citations omitted). Whatever inclusiveness means in this context, CAAF rejects it:

the absurdity of the suggestion that the panel composition in this case was an appropriate attempt at “inclusiveness,” or “representativeness” is readily apparent. First, Appellant is neither a woman nor a victim advocate. Rather, he is a male, accused of rape. Second, as a matter of common sense, seventy percent is not statistically or otherwise “representative,” of a population comprising less than twenty percent of the total pool of potential panel members. Third, the findings of the military judge make clear that the severe discrepancy between the percentage of available female panel members and the final makeup of Appellant’s panel was not reflective of a good-faith attempt to either comply with the dictates of Article 25, UCMJ, or create a more representative or an inclusive panel. Rather, it was riddled with intentional efforts to maximize the number of women on the panel because VADM Brown, RADM Colvin, and RADM Ryan thought it was “very important” to have a “large number of women” on the panel in this sexual assault case.

Slip op. at 11-12. Judge also Ryan emphasizes that:

the record in this case is replete with evidence that the inclusion of a high percentage of women was the result of intentional choices by the first three convening authorities, and the apparently untutored acquiescence of the fourth. It is the evidence that an improper selection criterion was actually used that raises the court stacking issue.

Slip op. at 12-13.

Court stacking is prohibited because it “is a form of unlawful command influence, and has the improper motive of seeking to affect the findings or sentence by including or excluding classes of individuals on bases other than those prescribed by statute.” Slip op. at 14-15 (marks and citations omitted). Furthermore, as a form of unlawful influence, “once the issue of improper member selection has been raised . . .  the burden shifts to the government to demonstrate beyond a reasonable doubt that improper selection methods were not used, or, that the motive behind the use of the selection criteria was benign.” Slip op. at 15. Here, however:

The salient facts paint a clear picture of court stacking based on gender in an atmosphere of external pressure to achieve specific results in sexual assault cases. Against that backdrop, purposefully selecting a panel that is seventy percent female, most of whom are victim advocates, from a roster of officers that was only twenty percent female and a pool of enlisted that was only thirteen percent female, smacks of a panel that was “hand-picked” by or for the Government.

Slip op. at 16 (citations omitted).

Yet that’s not the end of Judge Ryan’s opinion for the unanimous court, as she undertakes a prejudice analysis that considers the strength (weakness, actually) of the prosecution’s case against Riesbeck:

The Government’s case was weak, primarily based on the testimony of SN S, the putative victim, who was unable to remember many of the events surrounding the crime due to alcohol use and whose testimony was controverted by other witnesses at trial. The Government’s case was so weak, in fact, that the Article 32 Investigating Officer recommended the dismissal of the Article 120, UCMJ, charges against Appellant.

Slip op. at 17-18. This analysis has echoes of Chief Judge Stucky’s opinion of the court in United States v. Guardado, __ M.J. __ (C.A.A.F. Dec. 12, 2017) (CAAFlog case page), acknowledging a mere “possib[ility] that the members convicted Appellant based solely on the testimony of his accusers. . . ” Guardado, slip op. at 7.

That much supports dismissal. CAAF, however, dismisses with prejudice, meaning that Riesbeck may never be prosecuted by the federal government again, must be reinstated to a full duty status, is entitled to six years of back pay, allowances, and promotions, and will receive the opportunity to continue to serve. If, that is, Riesbeck has any interest in continuing to wear the uniform after such a lengthy and tortured process.

It’s a sharp rap across the knuckles for the convening authority and his staff judge advocate, the trial and DuBay military judges, the Coast Guard CCA, and the Coast Guard Government Appellate Division. And, of course, the taxpayers, who will literally pay the consequences.

Case Links:
• CGCCA opinion
• Blog post: CGCCA Finds Appellant Waived Challenge to Panel Make-up 
• Blog post: CAAF reverses
• CGCCA opinion
• Appellant’s brief
• Appellee’s (Coast Guard Appellate Gov’t Div.) brief
• Appellant’s reply brief
• Blog post: Argument preview
Oral argument audio.
CAAF opinion
Blog post: Opinion analysis

27 Responses to “Opinion Analysis: An error “both so obvious and so egregious that it adversely affected not only Appellant’s right to a fair trial by an impartial panel, but also the essential fairness and integrity of the military justice system,” in United States v. Riesbeck”

  1. Alfonso Decimo says:

    This is an excellent post, but I would remove the last sentence. The taxpayers will not literally pay the consequences b/c the government is now barred from prosecuting the accused again for the same crimes.

  2. Zachary D Spilman says:

    I’m talking about the pay and allowances, Alfonso Decimo. For everyone involved. 

  3. ScottComstock says:

    So the $64 question from this civilian taxpayer is, what happens to the major players in this case, and especially to Riesbeck himself?  What happens to the four convening authorities that allowed this train wreck to happen, and wasted who knows how much taxpayer money on what looks to be a straight-up railroad job?  Assuming Riesbeck wants to continue in the service, what’s to stop the Coast Guard from slapping Riesbeck with an NJP and ADSEPping him out?  

  4. PJM says:

    NJP – Two years have passed.
    Return to service – unknown, but if he’s been on appellate leave, it’s not likely he’ll be invited back, or have any choice to come back on duty.

  5. Charlie Gittins says:

    Since one of the CAs is now Commandant of the Coast Guard, I would not be surprised if there was an article in the Washington Times about this case in the next day or so.

  6. Anonymous says:

    Not invited back?  He’s on appellate leave based on a case that was dismissed, never to be tried again.  The reason he’s on appellate leave is now moot.  Not that I think he would want to come back to the organizational who did this to him, why wouldn’t he be allowed to come back?  He no longer has a court martial conviction and the statue of limitations has passed for NJP.

  7. David A. says:

    To paraphrase Ralph Waldo Emerson, this was the “Slap Heard Round The World.”
    If Chamblin has not been certified, it might be a good idea not to.

  8. J.M. says:

    As I’ve said before, my days of not taking the military justice system serious are coming to a middle.
    If you google his name, predictably, the top hits are sex offender websites. Wish him the best of luck and it’s too bad the Coast Guard can’t be held financially liable for the money and time it will take, if it’s even possible, to scrub his name off the various websites. 

  9. Zachary D Spilman says:

    Riesbeck’s enlistment has (almost certainly) ended, and so if not reenlisted he will be discharged. 

    He is, however, be eligible to reenlist, to enlist in another service, or to apply for officer candidate school.

  10. Ed says:

    Zach do you think he is a good candidate for Marine OCS and TBS. You should pass his name along to an OSO

  11. Zachary D Spilman says:

    Coast Guard JAG corps.

  12. Sir Visdis Crediting says:

    It refers to all personnel under his command as “immediate family” and expresses intolerance of all acts of sexual assault that undermine the “well-being of my family tree.” It implies, to an extent, that a service member accused of sexual assault is automatically expelled from the family.
    This is creepy. I know the Coast Guard is small, but c’mon, nobody has a 48,000 member family.

  13. David A. says:

    Sentence adjudicated June 16, 2012.
    Assuming E-5, Riesbeck’s back pay could be 66 months x 2,733 = $180,378.

  14. stewie says:

    Sir Visdis Crediting I give you Wilt Chamberlain!

  15. EnlistedDefender says:

    While I am relieved to see CAAF protecting the accused, and righting the wrongs for Riesbeck, I am more concerned that four convening authorities, numerous SJA’s, a trial judge, and the CCA failed to see (or even address) the issue…or maybe they just turned a blind eye to it. I hope this opinion helps push the pendulum back in the right direction. It doesn’t take a seasoned litigator to recognize the glaring issues presented in this case…

  16. Dew_Process says:

    That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission.

    John Hamilton, The Federalist Papers, # 78.

  17. k fischer says:

    I wonder how many SJA’s offices are scrambling to get a new Convening Order drafted at their post.  The DuBay hearing findings attached to the order provides a pretty good outline of the external pressures that CAAF recognized.  Defense Counsel: Cry havoc and let slip the motions to dismiss!
    I’ve never been wary of women on a panel myself.  I find them to be harder on women than white knighting men.  What really scares me is when there aren’t any women on the panel in a sexual assault case.

  18. Saul says:

    KF – I kinda don’t care that they’re women.   I do care, a lot, that the majority of the panel were VAs, trained to always believe an alleged victim.  

  19. k fischer says:


  20. Nathan Freeburg says:


  21. stewie says:

    One woman (who isn’t a victim advocate) on a panel is pretty tough for the government. The men on the panel basically default to her, if she’s skeptical of the woman, then they are too, and often she is.
    Now if you get to 2-3 women, then you might get a diversity of views and that “expert” aura is broken.

  22. Oppressed says:

    This isn’t the only time a service member has been convicted and made a sex offender after what amounts to a modern day lynching.  If you’re in the military and you don’t like what is happening here, then have the courage to try to change it at every opportunity. 

  23. Tami a/k/a Princess Leia says:

    Women, in general, are harder on women, especially in alcohol-related cases, because they see the hypocrisy.  You want “equal treatment and “equal rights” and respect, and to be treated the same as a man, but yet you don’t want “equal responsibility” for your actions when you get plastered, and now all of a sudden you’re “weak,” and someone else needs to look out for you and protect you from yourself.
    But throwing in the victim-advocacy and “believe the victim no matter what,” that just completely does away with that dynamic.  Also does away with the presumption of innocence.

  24. stewie says:

    I don’t know Tami. Most rapists are men. I mean that’s objective, statistical facts. So one sex is more…prone…to taking advantage of someone in a weakened state (female or male). When I prosecuted I always said, if there is anywhere, where a female SHOULD feel safe throwing caution to the wind and getting “plastered,” it should be in the company of fellow Soldiers.
    I don’t think equal rights or equal responsibility play into this. The men have a “responsibility” to not take advantage of someone who is plastered. Now, if they are both plastered? Aye, there’s the rub. No one is really taking advantage of anyone, and we are left with the conundrum of “defaulting” to the male being the only one responsible. I’m with you in that specific scenario. But where she’s toasted and he’s not, yeah, no “equal responsibility” there…it’s on the non-plastered person, whether male or female.

  25. Sir Visdis Crediting says:

    It just occurred to me — if the Convening Authority had pulled a Bartee, would CAAF have found UCI?

  26. SgtDad says:

    Gittins is prescient:
    Dated 28 Jan, so a little later than predicted.
    Having been re-educated in classic Stalinist style, wouldn’t every trained VA be subject to challenge for bias?

  27. PJM says:

    Title 10, section 707 seems to provide a big payday for Riesbeck.