UNITED STATES, Appellee 

v. 

Adam D. DOUGLAS, Senior Airman 

U.S. Air Force, Appellant 

No. 09-0466 

Crim. App. No. S31059 

United States Court of Appeals for the Armed Forces

Argued October 14, 2009 

Decided February 23, 2010 

RYAN, J., delivered the opinion of the Court, in which EFFRON, 

C.J., and ERDMANN, J., joined. BAKER and STUCKY, JJ., each 

filed a separate dissenting opinion. 

Counsel 

For Appellant: Terri R. Zimmermann, Esq. (argued); Captain 

Marla J. Gillman (on brief); Major Lance J. Wood and Major 

Shannon A. Bennett. 

For Appellee: Major Coretta E. Gray (argued); Colonel Douglas 

P. Cordova, Lieutenant Colonel Jeremy S. Weber, and Gerald R. 

Bruce, Esq. (on brief). 

Military Judge: Nancy J. Paul 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 
United States v. Douglas, No. 09-0466/AF 

2

Judge RYAN delivered the opinion of the Court. 

In this case the military judge found unlawful command 

influence and then crafted a remedy in which Appellant not only 

appeared to acquiesce but actively participated. The military 

judge also gave Appellant a continuance to avail himself of the 

remedy and then inquired as to whether Appellant wished to raise 

any further issues on the matter. Appellant raised none. 

Appellant now alleges that the military judge reversibly erred 

by crafting a remedy for unlawful command influence instead of 

dismissing the charges against him.1

 We disagree, and hold that 

the military judge’s decision to craft a remedy was within the 

bounds of her discretion. 

If the record disclosed that the reasonable remedy had been 

implemented in full, Appellant’s participation in and apparent 

acquiescence at trial to the remedy crafted and Appellant’s 

disavowal of any claim of ineffective assistance of counsel 

would end the inquiry. However, because the record does not 

disclose whether the remedy crafted by the military judge was 

actually implemented in full, under the facts of this case we 

devolve to the ordinary test whether unlawful command influence 

 

1

 On Appellant’s petition, we granted review of the following 

issue: 

WHETHER THE MILITARY JUDGE REVERSIBLY ERRED WHEN SHE 

DID NOT DISMISS THE CHARGES AND SPECIFICATIONS AFTER 

SHE FOUND THAT UNLAWFUL COMMAND INFLUENCE EXISTED IN 

THIS CASE. 
United States v. Douglas, No. 09-0466/AF 

3

deprived Appellant of access to character witnesses. United 

States v. Gleason, 43 M.J. 69, 73 (C.A.A.F. 1995) (explaining 

the government’s burden to establish beyond a reasonable doubt 

that defense access to witnesses was not impeded by unlawful 

command influence). We are not convinced beyond a reasonable 

doubt that Appellant was not thus prejudiced. United States v. 

Biagase, 50 M.J. 143, 151 (C.A.A.F. 1999) (finding beyond a 

reasonable doubt the correct quantum of proof applicable to 

issues of unlawful command influence). Accordingly, we overturn 

the United States Air Force Court of Criminal Appeals. 

I. Facts 

A special court-martial composed of a military judge 

sitting alone convicted Appellant, contrary to his pleas, of 

failing to go to his appointed place of duty at the time 

prescribed, violating a lawful general regulation, dereliction 

of duty, making a false official statement, distribution of 

methamphetamine, carnal knowledge, and sodomy of a child under 

the age of sixteen years, in violation of Articles 86, 92, 107, 

112a, 120, and 125, Uniform Code of Military Justice (UCMJ), 10 

U.S.C. §§ 886, 892, 907, 912a, 920, 925 (2000), respectively. 

The sentence adjudged by the military judge and approved by 

the convening authority included a bad-conduct discharge, 

confinement for twelve months, and reduction to the grade of 

E-1. Appellant was given sixty days of confinement credit to 
United States v. Douglas, No. 09-0466/AF 

4

compensate for illegal pretrial punishment. The CCA found no 

prejudicial error and affirmed. United States v. Douglas, No. 

ACM S31059, 2009 CCA LEXIS 41, at *32, 2009 WL 289705, at *11 

(A.F. Ct. Crim. App. Jan. 28, 2008) (unpublished). 

The charges at issue in this appeal stem from Appellant’s 

conduct when he was stationed as a military recruiter in Butte, 

Montana. Appellant, at the time a senior airman (SrA), was 

supervised by Master Sergeant (MSgt) William Bialcak, the senior 

recruiter at the Butte recruiting office. In December 2003, an 

investigation into Appellant’s alleged misconduct began. MSgt 

Bialcak heard of the investigation and, on May 6, 2004, ordered 

Appellant not to contact any witness who was part of the ongoing 

investigation into his alleged misconduct. MSgt Bialcak issued 

a second order on May 11, 2004, prohibiting Appellant from 

contacting any members of his unit for non-work-related reasons 

without MSgt Bialcak’s prior approval. While the investigation 

was ongoing, MSgt Bialcak openly disparaged Appellant, expressed 

his certainty of Appellant’s guilt to co-workers within the 

recruiting station and surrounding federal building, and 

intimidated potential witnesses from providing character 

references for Appellant. MSgt Bialcak also intimidated 

Appellant into not filing a report with the Inspector General 

regarding these actions. 
United States v. Douglas, No. 09-0466/AF 

5

 On August 16, 2005, Appellant moved to dismiss the charges 

and specifications against him on the ground that MSgt Bialcak’s 

orders and actions constituted unlawful command influence by 

creating a hostile environment that made it unlikely that 

Appellant’s colleagues would speak on his behalf.2

 On August 18, 

2005, the motion to dismiss was heard during an Article 39(a), 

UCMJ, 10 U.S.C. § 839(a) (2000), session. After reviewing the 

evidence presented, the military judge examined the effect of 

MSgt Bialcak’s two May 2004 no-contact orders and found that 

although “there was no direct evidence the Accused was hindered 

in presenting a defense or that the outcome of his court-martial 

[was] affected by these orders,” MSgt Bialcak’s orders had the 

potential to impact Appellant’s “ability to collect character 

statements on his behalf” from his co-workers. The military 

 

2

 The prohibition against unlawful command influence arises from 

Article 37(a), UCMJ, 10 U.S.C. § 837(a) (2006), which provides 

in relevant part: 

No authority convening a general, special, or summary 

court-martial, nor any other commanding officer, may 

censure, reprimand, or admonish the court or any 

member, military judge, or counsel thereof, with 

respect to the findings or sentence adjudged by the 

court, or with respect to any other exercise of its or 

his functions in the conduct of the proceeding. No 

person subject to this chapter may attempt to coerce 

or, by any unauthorized means, influence the action of 

a court-martial or any other military tribunal or any 

member thereof, in reaching the findings or sentence 

in any case, or the action of any convening, 

approving, or reviewing authority with respect to his 

judicial acts. 
United States v. Douglas, No. 09-0466/AF 

6

judge next examined the effect on the court-martial of MSgt 

Bialcak’s “negative attitude and unpleasant demeanor toward the 

Accused.” She found that MSgt Bialcak’s behavior resulted in “a 

hostile atmosphere” within both the recruiting office and the 

federal office building in which it was housed. She identified 

three co-workers who had been affected by MSgt Bialcak’s 

behavior: 

Mrs. Tomlinson [one of MSgt Bialcak’s subordinates] 

testified that she did not submit a statement on the 

Accused’s behalf, which would have been favorable if 

she had done so, because she was afraid that MSgt 

Bialcak would be angry with her . . . . There was 

testimony that SSgt Austin [another of MSgt Bialcak’s 

subordinates] . . . was apprehensive about providing a 

character statement on his behalf. Don Rose [who 

maintained the federal building where MSgt Bialcak and 

SrA Douglas worked] also testified that he felt that 

there would be negative consequences should he provide 

a character statement. These witnesses testified that 

they, and others they knew of, were discouraged from 

providing character statements for the Accused because 

of possible repercussions from MSgt Bialcak. 

Based on these findings of fact, the military judge 

concluded that MSgt Bialcak’s actions resulted in unlawful 

command influence by discouraging witnesses from providing 

character statements on Appellant’s behalf. However, the 

military judge concluded that although the evidence showed 

unlawful command influence that could affect Appellant’s 

sentence, “the evidence was not sufficient to show that this 

unlawful command influence would potentially affect the findings

of the Accused’s court-martial.” (emphasis added). The motion 
United States v. Douglas, No. 09-0466/AF 

7

to dismiss was denied and a remedy was crafted to overcome the 

effects of the unlawful command influence. 

The remedy consisted of several parts. The military judge 

ordered a continuance so that trial and defense counsel would 

have the opportunity to, among other things, jointly author a 

memorandum directed at potential character witnesses. The 

memorandum, which was to be written in the name of Appellant’s 

commanding officer, was to be “utilized by defense counsel and 

the [a]ccused to facilitate the securing of character statements 

on behalf of the [a]ccused.” The continuance was to last for a 

period of time to “be determined by the Court, subsequent to the 

finalization and approval of the memorandum.” Further, the 

military judge made several “strong recommendation[s]” designed 

to remove Appellant from MSgt Bialcak’s supervision, prevent 

MSgt Bialcak from discussing the case with anyone except trial 

and defense counsel, and rescind MSgt Bialcak’s previously 

issued no-contact orders. 

She then provided counsel with an opportunity to question 

or state an objection regarding the memorandum, told counsel 

that she was continuing the court-martial until counsel were 

ready to proceed, and gave both parties another opportunity to 

express any concern regarding the production of witnesses or 

identify other unresolved issues. 
United States v. Douglas, No. 09-0466/AF 

8

The continuance lasted over seventy days, and hearings on 

the merits began on November 1, 2005. At that time, the 

military judge questioned defense counsel regarding the 

memorandum that had been, as ordered, jointly authored by 

defense and trial counsel in the name of Appellant’s commander 

and then reviewed by the military judge:3

MJ: And another area that we need to take up is when 

the court recessed in August, in response to the 

court’s ruling regard [sic] the defense motion to 

dismiss, I requested counsel prepare a memorandum to 

be signed by Lieutenant Colonel Young, who was the 

accused’s commander. I requested that they forward 

that to me. They did so. Some modifications were 

done back and forth between all parties, and we did 

come up with a final memorandum. What I will do, the 

-- that memorandum was provided to all counsel. 

And I should ask [defense counsel] Captain 

Williams, did the defense receive a copy of that 

memorandum for their use? 

DC: We did, Your Honor. 

Defense counsel raised no objection as to the effectiveness 

of the memorandum. When the military judge provided counsel the 

 

3

 The memorandum was addressed to all persons who knew Appellant, 

either personally or professionally, in the name of Appellant’s 

commander. The memorandum stated, in relevant part: 

I can assure you that no negative actions will be 

initiated by anyone should they elect to assist in SrA 

Douglas’ defense. Any assistance you provide SrA 

Douglas is, to the contrary, very welcome and strongly 

encouraged. . . . If at any time you are approached by 

anyone attempting to pressure you, direct or 

otherwise, into a decision whether or not to testify 

or provide a letter of support on behalf of SrA 

Douglas, I ask you to immediately report the incident 

. . . . 
United States v. Douglas, No. 09-0466/AF 

9

opportunity to voice any concerns that had arisen since August 

or to raise additional motions, defense counsel responded, 

“Nothing at this time, Your Honor.” 

Appellant was subsequently found guilty and sentenced. On 

appeal to the CCA, Appellant asserted, among other things, that 

the military judge erred by not dismissing the charges and 

specifications after finding unlawful command influence and 

erred further when she found that the unlawful command influence 

would not affect the findings stage of the trial. Douglas, 2009 

CCA LEXIS 41, at *2, 2009 WL 289705, at *1. The CCA disagreed 

that dismissal was mandated but agreed that the military judge 

erred in holding that the unlawful command influence could only 

have negatively impacted the sentencing portion of the trial. 

Id. at *12-*14, 2009 WL 289705, at *5. The CCA determined that 

but for MSgt Bialcak’s influence, Appellant might have been able 

to more effectively pursue a good military character defense 

during the findings portion of his court-martial. Id. at *13, 

2009 WL 289705 at *5. 

Notwithstanding this error, however, the CCA found no 

prejudice because (1) there was no abuse of discretion in the 

type of corrective action chosen by the military judge, and (2) 

the corrective action was “ultimately implemented in a manner 

broad enough to dissipate any potential taint as to both

findings and sentence.” Id. at *14, 2009 WL 289705, at *5 
United States v. Douglas, No. 09-0466/AF 

10

(emphasis in original). The CCA found that the corrective 

action provided the opportunity to the defense -- had it so 

chosen -- to execute a trial strategy that included presentation 

of good character evidence during both the findings and 

sentencing phases of the trial. Id. at *14-*15, 2009 WL 289705, 

at *5. 

II. Discussion 

The issue granted is whether the military judge erred by 

choosing a remedy other than dismissal after finding that MSgt 

Bialcak’s no-contact orders and negative behavior discouraged 

witnesses from providing character statements for Appellant and 

resulted in unlawful command influence. We agree with the CCA 

that there was no abuse of discretion in the type of corrective 

action decided upon by the military judge.4

 However, once 

unlawful command influence is raised at the trial level, as it 

was here, a presumption of prejudice is created. Biagase, 50 

M.J. at 150. To affirm in such a situation, we must be 

convinced beyond a reasonable doubt that the unlawful command 

influence had no prejudicial impact on the court-martial. Id.

at 150-51. Although this is a close case, on the record we have 

here we are not so convinced. 

 

4

 We also agree with the CCA that the impact of the unlawful 

command influence extended to both the findings and sentencing 

portions of the trial. 
United States v. Douglas, No. 09-0466/AF 

11

A. 

Article 37(a), UCMJ, prohibits unlawful command influence. 

This prohibition includes attempts to interfere with access to 

witnesses. See United States v. Gore, 60 M.J. 178, 185 

(C.A.A.F. 2004) (condemning unlawful command influence directed 

against prospective witnesses); United States v. Stombaugh, 40 

M.J. 208, 212-13 (C.M.A. 1994) (same). Dismissal of the charges 

is one alternative if unlawful command influence is found. 

Gore, 60 M.J. at 187. 

In a case involving unlawful command influence, we review 

issues involving a military judge’s decision not to dismiss for 

abuse of discretion. Id. Under this standard, “‘when judicial 

action is taken in a discretionary matter, such action cannot be 

set aside by a reviewing court unless it has a definite and firm 

conviction that the court below committed a clear error of 

judgment in the conclusion it reached upon a weighing of the 

relevant factors.’” Id. (quoting United States v. Houser, 36 

M.J. 392, 397 (C.M.A. 1993)). We grant a military judge broad 

discretion in crafting a remedy to remove the taint of unlawful 

command influence, and we will not reverse “so long as the 

decision remains within that range.” Id. (citation omitted). 

This Court has recognized that “a military judge can 

intervene and protect a court-martial from the effects of 

unlawful command influence.” Biagase, 50 M.J. at 152 (citing 
United States v. Douglas, No. 09-0466/AF 

12

United States v. Rivers, 49 M.J. 434 (C.A.A.F. 1998)). We have 

looked with favor on military judges taking proactive, curative 

steps to remove the taint of unlawful command influence and 

ensure a fair trial. See, e.g., id. (approving of the military 

judge’s forceful and effective discharge of his duties to 

protect the court-martial from unlawful command influence); 

Rivers, 49 M.J. at 444 (approving of the military judge’s 

detailed and case-specific remedies that ensured the appellant’s 

trial was untainted by unlawful command influence). As a last 

resort, a military judge may consider dismissal “when necessary 

to avoid prejudice against the accused.” Gore, 60 M.J. at 187. 

“[D]ismissal of charges is appropriate when an accused would be 

prejudiced or no useful purpose would be served by continuing 

the proceedings.” Id. (citing United States v. Green, 4 M.J. 

203, 204 (C.M.A. 1978)). However, we have noted that “[w]hen an 

error can be rendered harmless, dismissal is not an appropriate 

remedy.” Id. (citing United States v. Mechanik, 475 U.S. 66 

(1986)). Dismissal “is a drastic remedy and courts must look to 

see whether alternative remedies are available.” Id. (citation 

omitted); see also United States v. Cooper, 35 M.J. 417, 422 

(C.M.A. 1992). 

We find the specifically tailored nature of the remedy and 

Appellant’s silence during and after the creation of the remedy 

instructive to our conclusion that the military judge acted 
United States v. Douglas, No. 09-0466/AF 

13

within her discretion in crafting a remedy aimed at ameliorating 

the effects of MSgt Bialcak’s actions rather than dismissing the 

charges. The military judge, after evaluating defense counsel’s 

pretrial motion to dismiss, identified MSgt Bialcak’s no-contact 

orders and his publicly and forcefully expressed negative 

attitude toward Appellant as unlawful command influence that 

could have discouraged potential witnesses from providing 

character statements on Appellant’s behalf. She then arrived at 

a remedy tailored to remove both roadblocks to obtaining 

character statements and any remaining specter of unlawful 

command influence. In total, the remedy consisted of: (1) 

providing a continuance to enable trial and defense counsel to 

co-author a memorandum from Appellant’s commanding officer; (2) 

making the memorandum available to the defense; (3) allowing the 

defense to decide on the memorandum’s use and to pursue such 

witnesses as it chose; and (4) “strong[ly] recommend[ing]” that 

(a) Appellant be removed from MSgt Bialcak’s supervision and 

assigned to another office selected by Appellant’s commander,5

(b) MSgt Bialcak be issued an order from his commander to 

immediately cease and desist communications regarding Appellant 

and the investigations, charges, and court-martial, and (c) the 

 

5

 We note, however, that even though the military judge 

recommended that Appellant be removed from MSgt Bialcak’s 

supervision by transferring Appellant, it would have been at 

least as reasonable to transfer MSgt Bialcak, the source of the 

unlawful command influence. 
United States v. Douglas, No. 09-0466/AF 

14

Government immediately rescind both the cease and desist order 

and the order prohibiting Appellant from contacting members of 

his unit. While the memorandum alone would not have been enough 

to alleviate other impediments to Appellant obtaining witness 

statements -- such as the no-contact orders and continued 

comments and interference by MSgt Bialcak -- collectively, these 

actions were reasonably tailored to alleviate the harm in this 

case. 

By not objecting during trial, defense counsel appeared to 

indicate his satisfaction with the potential efficacy of this 

remedy. This finding is bolstered by the fact that Appellant 

raises no claim for ineffective assistance of counsel here. On 

balance, we find the decision of the military judge not to 

dismiss the case in favor of attempting to remedy the unlawful 

command influence to be well within the bounds of her 

discretion. 

B. 

We remain vigilant, however, against unlawful command 

influence, which this Court has called “the mortal enemy of 

military justice.”6

 United States v. Lewis, 63 M.J. 405, 407 

(C.A.A.F. 2006) (quotation marks and citations omitted). While 

 

6

 Unlawful command influence is not the “mortal enemy” of the 

military justice system because of the number of cases in which 

such influence is at issue, but rather because of the 

exceptional harm it causes to the fairness and public perception 

of military justice when it does arise. 
United States v. Douglas, No. 09-0466/AF 

15

the military judge stands watch as the “last sentinel” in the 

military justice system, United States v. Harvey, 64 M.J. 13, 14 

(C.A.A.F. 2006) (quotation marks and citations omitted), once 

unlawful command influence is raised pretrial or at trial, the 

responsibility to protect the military justice system against 

unlawful command influence is not one unilaterally thrust upon 

the shoulders of the military judge. Rather, it is a shared 

responsibility. Id. at 17-18. The military judge, having 

crafted a reasonable remedy, is not required, in the face of 

apparent satisfaction from the defense, to intuit possible 

objections for the defense and then raise them sua sponte. 

Herein lies the difficulty of this case: on the one hand, 

the military judge, acting within her discretion, crafted a 

remedy that would -- if fully implemented -- satisfy concerns 

about the effect of unlawful command influence in this case, and 

defense counsel -- after a lengthy continuance -- had no further 

objections or motions and did not request additional time. On 

the other hand, the burden of proof is on the Government, and 

the record does not itself reveal that all portions of the 

remedy crafted were implemented. Thus, while Appellant’s 

acquiescence and silence are factors to consider -- factors that 
United States v. Douglas, No. 09-0466/AF 

16

make this a close case on this record7

 -- given that the burden 

of proof is on the Government, Gore, 60 M.J. at 186, we cannot 

be convinced beyond a reasonable doubt that the taint from the 

unlawful command influence did not prejudice Appellant. 

The particular harm from the unlawful command influence in 

this case was that but for MSgt Bialcak’s influence, Appellant 

might have been able to more effectively pursue a good military 

character defense during the findings and sentencing portions of 

his court-martial. The remedy as a whole was a reasonable and 

tailored means to combat that harm. But while the letter in the 

name of the commanding officer was drafted and available for use 

by the defense, the record does not reveal whether Appellant’s 

commanding officer followed the remaining remedies crafted by 

the military judge regarding the orders MSgt Bialcak had 

previously issued. The record is unclear as to whether 

Appellant’s commander either issued an order forbidding MSgt 

Bialcak from discussing the case with anyone except trial and 

defense counsel or rescinded the no-contact orders that 

precluded Appellant from contacting witnesses. 

The record does reveal, however, that none of the 

witnesses that testified on the unlawful command influence 

motion that they were discouraged from providing character 

 

7

 We note that this Court has not applied the doctrine of waiver 

where unlawful command influence is at issue. United States v. 

Johnston, 39 M.J. 242, 244 (C.M.A. 1994). 
United States v. Douglas, No. 09-0466/AF 

17

statements by MSgt Bialcak testified at trial. And the 

record does not otherwise demonstrate that unlawful command 

influence did not deprive Appellant of favorable character 

witnesses. See, e.g., Gleason, 43 M.J. at 74-75 (noting 

that the government could disprove the effect of unlawful 

command influence on obtaining character witnesses by 

showing that: (1) the appellant in fact offered character 

evidence at trial; (2) there either was no evidence of good 

character available or that readily available rebuttal 

evidence of bad character made raising good character 

tactically implausible; or (3) the prosecution evidence at 

trial was so overwhelming that character evidence could not 

have had an effect (citing United States v. Thomas, 22 M.J. 

388, 396-97 (C.M.A. 1986))). 

Here, Appellant presented no favorable character testimony 

during his court-martial, the Government has not shown that 

presentation of a good character defense was unfeasible, and the 

Government has not met its burden of showing that the character 

evidence would have been completely ineffective. Further, the 

record reveals that Appellant maintained his innocence even 

after his conviction8

 and that much of the evidence against him 

 

8

 During the sentencing portion of the court-martial, for 

example, defense counsel again discussed the effect of MSgt 

Bialcak’s behavior on Appellant’s defense: “He was ordered to 

stop talking with people, to stop assisting in his own defense, 
United States v. Douglas, No. 09-0466/AF 

18

came solely from the victim’s own testimony. Thus, despite the 

theoretical efficacy of the crafted remedy -- and while this 

would be a different case if evidence in the record indicated 

that the remedy had been implemented in full -- on this record 

we cannot say we are convinced beyond a reasonable doubt that 

Appellant was not deprived of the benefit of testimony from 

character witnesses as a result of the unlawful command 

influence. 

When a military judge crafts a reasonable and tailored 

remedy to remove unlawful command influence, and if the record 

reflects that the remedy has been implemented fully and no 

further objections or requests were made by the defense, then 

rather than requiring the government to prove a negative we 

would be satisfied that the presumptive prejudice had been 

eliminated.9

 See Biagase, 50 M.J. at 150. However, as in this 

case, when the record fails to include evidence that key 

components of the remedy were implemented, the presumption of 

prejudice flowing from the unlawful command influence has not 

been overcome. The government must then find an alternative way 

to meet its burden. See, e.g., Gleason, 43 M.J. at 74-75. 

 

an investigation that had been going on for two years, he was 

told to stop doing that. . . . This case is about an airman who 

was convicted before he ever set foot in the courtroom two years 

ago.” 

9

 This would be true even if an appellant did not pursue a good 

military character defense as there are tactical considerations, 

apparent or not, which could influence that decision. 
United States v. Douglas, No. 09-0466/AF 

19

III. Conclusion 

The decision of the United States Air Force Court of 

Criminal Appeals is reversed and the findings and sentence are 

set aside. A rehearing may be ordered. The record of trial is 

hereby returned to the Judge Advocate General of the Air Force 

who shall refer the case to an appropriate convening authority 

to determine if a rehearing is practicable. If the convening 

authority determines that a rehearing is impracticable, the 

charges shall be dismissed. 
United States v. Douglas, No. 09-0466/AF 

BAKER, Judge (dissenting): 

While the unlawful command influence in this case was 

manifest, this is a close case on prejudice. One reason the 

prejudice call is a close one is because the manner in which the 

unlawful command influence issue was litigated does not fit 

neatly into the United States v. Biagase, 50 M.J. 143, 151 

(C.A.A.F. 1999), framework. Specifically, under Biagase once 

unlawful command influence is found, the burden shifts to the 

government to disprove prejudice beyond a reasonable doubt. Id. 

However, the Biagase line of cases is addressed to instances of 

unlawful command influence identified after trial. This issue 

arose before trial. Moreover, the Biagase line did not 

contemplate nor address the circumstance where, as here, the 

defense expressed satisfaction with the remedial measures 

adopted by the military judge, in which context; the military 

judge did not require more from the government. 

As a result, in this case there are arguments on both sides 

of the ledger. On the one hand, this is clearly a case where 

the chilling hand of unlawful command influence initially 

limited Appellant’s opportunity to solicit favorable testimony. 

Because the Government bears the burden of proving beyond a 

reasonable doubt that the unlawful command influence was not 

prejudicial, it is placed in the position in this case of having 

to demonstrate a negative, that Master Sergeant (MSgt) Bialcak’s 
United States v. Douglas, No. 09-0466/AF 

2

orders and actions did not continue to keep people from 

testifying after the remedy was put in place. However, that is 

hard to do; to resort to one of the metaphors that seem to cling 

to unlawful command influence issues, one cannot un-ring a bell. 

Perhaps, one of those putative witnesses would have vouched for 

Appellant’s credibility or qualities as a member of the 

military. 

On the other hand, neither the military judge nor the 

defense counsel put the Government to the test. Defense counsel 

affirmed that the remedy had been implemented and, when given 

the opportunity to object or voice any concerns or raise 

additional motions, responded, “Nothing at this time.” 

Moreover, there is no evidence that Appellant was prejudiced in 

a military judge alone trial where the military judge understood 

what the putative witnesses might have said, where the military 

judge instituted a reasonable remedy, and where defense counsel 

expressed satisfaction with the result. 

Weighing these two sides of the equation I would reach a 

different result than the majority in this case, therefore, I 

respectfully dissent. As importantly, I disagree with the 

analytic structure and reasoning the majority adopts. 

First, the majority embraces the dated unlawful command 

influence metaphor that the military judge is the last sentinel 

against unlawful command influence, but then relieves that 
United States v. Douglas, No. 09-0466/AF 

3

sentinel of her duties. “The military judge, having crafted a 

reasonable remedy, is not required, in the face of apparent 

satisfaction from the defense, to intuit possible objections for 

the defense and then raise them sua sponte.” United States v. 

Douglas, __ M.J. __ (15) (C.A.A.F. 2010). In my view, whatever 

metaphor we adopt, and it might be time to simply refer to the 

military judge as a military judge and not a sentinel, it is and 

remains the military judge’s responsibility to address unlawful 

command influence at trial from start to finish, regardless of 

what the parties say. 

Second, the majority concludes that the military judge’s 

remedial actions were reasonable. Id. at __ (14). The majority 

also notes that the defense was given the opportunity to express 

concerns about the application of those remedies and did not. 

Id. That acquiescence is not waiver, but it is a factor the 

military judge reasonably considered in proceeding with 

sentencing. Specifically, in the context of this case, in a 

military judge alone trial, the military judge did not require 

the Government to do something more to demonstrate a lack of 

unlawful command influence prejudice. Although in retrospect, 

we now know it would have been better if the military judge had 

expressly determined that all the remedial measures had been 

implemented, I do not think the Biagese framework requires, or 

should require, the Government to nonetheless prove a negative 
United States v. Douglas, No. 09-0466/AF 

4

in the context where the defense expressed satisfaction, the 

military judge did not require more, and the military judge, 

sitting alone, had command of the facts that might be relevant 

to a good soldier case. 

Third, in any event, the majority cites United States v.

Gleason, 43 M.J. 69, 74-75 (C.A.A.F. 1995), for the proposition 

that the government has three means by which it can demonstrate 

a lack of prejudice in a character witness case. Douglas, __ 

M.J. at __ (16-17). Aside from the fact that Gleason does not 

provide or compel a checklist approach to prejudice, I would 

leave the appropriate means of demonstrating a lack of prejudice 

to the context of the individual case presented and the 

discretion of the military judge presiding. This is especially 

apt where the unlawful command influence is identified before 

trial and addressed, as opposed to the circumstances in Gleason

and United States v. Thomas, 22 M.J. 388 (C.M.A. 1986), where it 

was identified after trial. 

Military judges, counsel, and indeed all participants in 

the military justice system have a duty to remain vigilant to 

the risk of unlawful command influence on military justice. In 

this sense, the metaphor of the “mortal enemy” is still apt. If 

allowed in practice, unlawful command influence will have a 

corroding effect that could prove deadly to the confidence 

members of the Armed Forces and the public have in the military 
United States v. Douglas, No. 09-0466/AF 

5

justice system. However, it is also fair to acknowledge that 

the system has matured and evolved since Thomas. Thus, the 

metaphor remains less apt to the extent it conveys the sense 

that there is an enemy afoot -- a mortal enemy -- which one 

might expect to contest the system at every turn, like Cold War 

enemies or Carthage and Rome. In this sense, the metaphor may 

suggest too much, in the way of a breathless presence, or 

omnipresence. In that regard, one might better look to child 

pornography or processing delay in the military justice system 

as “mortal enemies.” However one describes unlawful command 

influence, in this case the problem was identified, reasonable 

remedial steps were taken, and both the military judge and 

defense counsel were satisfied with those steps before the 

military judge alone trial proceeded further. As a result, I 

would find that there was no prejudice in this case and affirm 

the United States Air Force Court of Criminal Appeals decision. 
United States v. Douglas, No. 09-0466/AF 

 STUCKY, Judge (dissenting): 

 I respectfully dissent from the judgment of the Court to 

set aside Appellant’s conviction. 

 The military judge fashioned a remedy for the unlawful 

command influence and gave Appellant an opportunity to object to 

it. Appellant did not object and the military judge continued 

the court-martial until the remedy could be implemented. With 

the consent of the parties, the military judge reconvened the 

court-martial more than seventy days later. The military judge 

inquired as to the implementation of the remedy. Defense 

counsel affirmed that the remedy had been implemented and, when 

given the opportunity to object or voice any concerns or raise 

additional motions, responded, “Nothing at this time.” 

 The majority notes that “this Court has not applied the 

doctrine of waiver where unlawful command influence is at 

issue.” United States v. Douglas, __ M.J. __ (16 n.7) (C.A.A.F. 

2010). This case is not about waiver of the unlawful command 

influence issue -- Appellant’s attorneys raised, argued, and 

prevailed on that issue at trial. Instead, this case concerns 

whether an appellant has a duty to notify the military judge if 

and when an instituted remedy proves unsatisfactory. I believe 

he does. 

 The majority rests its holding on the fact that it does not 

know whether the remedy was successfully implemented because the 
United States v. Douglas, No. 09-0466/AF 

2

defense did not call any character witnesses to testify on 

Appellant’s behalf at this judge-alone trial. But there is good 

reason for our ignorance; the defense failed to complain at 

trial that the remedy was ineffective or provide facts upon 

which such a conclusion could be drawn, even though any such 

facts were solely within its knowledge. 

 Despite the absence of these necessary facts, the majority 

suggests the prosecution had a duty to show that the 

presentation of a good character defense was infeasible. Id. at 

__ (17-18). There are many reasons why Appellant’s counsel may 

have finally decided not to present such a defense, even if it 

were feasible to do so. Placing the burden on the prosecution 

to prove the defense was infeasible makes no sense, unless the 

majority believes that Appellant’s counsel were ineffective. On 

the record before us, there is no evidence or reason to believe 

that the same aggressive defense attorneys who had prevailed on 

the unlawful command influence issue suddenly lost their courage 

and were afraid to notify the military judge that the remedy had 

not been fully implemented or had not worked. On the facts of 

this case, I am convinced beyond a reasonable doubt that the 

remedy fashioned by the military judge purged the taint of the 

unlawful command influence.