UNITED STATES, Appellee 

v. 

Jemima HARVEY, Lance Corporal 

U.S. Marine Corps, Appellant 

No. 04-0801 

Crim. App. No. 200001040 

United States Court of Appeals for the Armed Forces 

Argued October 11, 2005 

Decided September 22, 2006 

GIERKE, C.J., delivered the opinion of the Court, in which 

EFFRON and ERDMANN, JJ., joined. CRAWFORD, J., and BAKER, J., 

each filed a separate dissenting opinion. 

Counsel 

For Appellant: Captain Peter H. Griesch, USMC (argued); 

Lieutenant Colin A. Kisor, JAGC, USNR, and Major Charles R. 

Zelnis, USMC (on brief). 

 

For Appellee: Lieutenant Craig A. Poulson, JAGC, USNR (argued); 

Lieutenant Colonel W. K. Lietzau, USMC, and Commander Charles N. 

Purnell II, JAGC, USN (on brief). 

Military Judge: J. F. Havranek 

This opinion is subject to revision before final publication. 
United States v. Harvey, No. 04-0801/MC 

2

Chief Judge GIERKE delivered the opinion of the Court. 

This Court has repeatedly reaffirmed that the military 

judge is the “last sentinel” in the trial process to protect a 

court-martial from unlawful command influence.1 Here, the 

primary issue is whether the military judge properly performed 

his sentinel duties when confronted with some unusual 

circumstances surrounding the convening authority being present 

in the courtroom during a portion of the court-martial. We hold 

that these trial developments raised the issue of unlawful 

command influence. The military judge failed to inquire 

adequately into this issue and failed to place the appropriate 

burden on the Government to rebut the existence of the command 

influence or to establish that it did not prejudice the 

proceedings. Therefore, the military judge erred in failing to 

perform his sentinel duties. For the reasons stated below, we 

reverse the decision of the lower court. 

At the outset we note that we granted review on three 

issues.2

 Here, we focus on Issue I (the unlawful command 

 

1

 United States v. Gore, 60 M.J. 178, 186 (C.A.A.F. 2004); United

States v. Biagase, 50 M.J. 143, 152 (C.A.A.F. 1999); United 

States v. Rivers, 49 M.J. 434, 443 (C.A.A.F. 1998). 

2

 This Court granted review on Issue I and Issue II and specified 

Issue III as follows: 

I. WHETHER THE LOWER COURT ERRED IN AFFIRMING THE 

MILITARY JUDGE’S DENIAL OF A MISTRIAL, WHEN THE 

MILITARY JUDGE FAILED TO INQUIRE INTO THE 

CIRCUMSTANCES OF THE CONVENING AUTHORITY’S PRESENCE AT 

TRIAL OR TO REQUIRE THE GOVERNMENT TO DISPROVE THE 
United States v. Harvey, No. 04-0801/MC 

3

influence issue) and also address Issue II (denial of speedy 

appellate review). Appellant’s claim as to Issue II is 

meritorious, thereby entitling her to additional relief. But 

the merits of Issue II also impacts the remedy we fashion to 

address the error relating to Issue I. Because of the error 

relating to unlawful command influence and the remedy we find 

appropriate, it is not necessary for us to address Issue III 

(improper sentence reassessment). 

I. BACKGROUND 

The operative facts are not in dispute and are presented 

accurately by the lower court: 

The convening authority at the time the appellant’s 

court-martial was convened and the charges referred was 

Major P.J. Loughlin, United States Marine Corps, Commanding 

Officer of Headquarters and Headquarters Squadron (H&HS), 

Marine Corps Air Station, Yuma, Arizona. He signed the 

convening order, detailing five officer members. He also 

signed the amendment to the convening order detailing four 

enlisted members and removing an officer member. After 

 

EXISTENCE OF UNLAWFUL COMMAND INFLUENCE ONCE THAT 

ISSUE WAS RAISED. 

II. WHETHER A DELAY OF 2031 DAYS BETWEEN SENTENCING AND 

CONCLUSION OF REVIEW UNDER ARTICLE 66, UCMJ, COMPORTS 

WITH DUE PROCESS. 

III. WHETHER THE SENTENCE WAS PROPERLY REASSESSED AFTER THE 

CONVENING AUTHORITY DISAPPROVED A GUILTY FINDING BUT 

NEITHER THE STAFF JUDGE ADVOCATE’S RECOMMENDATION NOR 

THE CONVENING AUTHORITY’S ACTION REFLECTS COGNIZANCE 

OF THE SENTENCE REASSESSMENT CRITERIA UNDER UNITED 

STATES V. SALES, 22 M.J. 305 (C.M.A. 1986), AND WHERE 

THE LOWER COURT FAILED TO REVIEW THE CONVENING 

AUTHORITY’S REASSESSMENT UNDER THE SALES CRITERIA. 

United States v. Harvey, 61 M.J. 50 (C.A.A.F. 2005). 
United States v. Harvey, No. 04-0801/MC 

4

challenges, one officer and three enlisted members remained 

to hear the case. By the time trial on the merits 

commenced before those four members, Lieutenant Colonel 

M.L. Saunders had succeeded Major Loughlin in command and 

Major Loughlin assumed duties as Executive Officer [XO]. 

After the trial counsel finished his closing argument on 

findings, there was a brief recess before the military 

judge gave instructions to the members. After the recess, 

in an Article 39a, UCMJ, session, the following discussion 

ensued: 

MJ: The court will come to order. All parties 

present when the court recessed are again present. 

The members are absent. 

During the last recess -- I guess I should say during 

the closing arguments of counsel the courtroom was 

pretty full of spectators. I saw an individual come 

in, sit down in the courtroom. During the last recess 

I just said to the trial counsel, who’s the man in the 

flight suit? He told me it was the XO of the Squadron 

which happens to be our convening authority in this 

case, the individual [who] actually picked the 

members, referred the case to trial, sat in on closing 

arguments. I want to make that part of the record. 

Defense, do you want to be heard on this? 

DC: Yes, sir, we do. We’d like to ask for a mistrial 

at this point because of his presence. It was obvious 

-- I didn’t know he was there at the time. It with 

[sic] obvious during the whole closing argument that 

the panel was looking over our shoulder. 

MJ: I didn’t see that. 

DC: We believe Captain Cisneros, the President, is 

intimately familiar with Major Loughlin. 

MJ: Well, she may be the only individual that knows 

him because the other enlisted members are not from 

that Squadron and I have no idea whether they even 

recognized or knew who he was. I can tell you that 

I’m about as far away from him as they were and I 

couldn’t even tell whether he was an officer or not 

because he was in a flight suit. I couldn’t see any 

rank insignia on his name patch. 
United States v. Harvey, No. 04-0801/MC 

5

DC: But Captain Cisneros knows him. 

MJ: Oh, I know she does. 

DC: And it’s a small base. Everybody knows the XO of 

H&HS. It’s our opinion that he’s going to influence 

their deliberation and influence the weight. He heard 

all the evidence, you know, and they’re going to be 

influenced by that fact. 

MJ: Okay. Your motion for a mistrial is denied. 

But, if you desire, I will give a limiting 

instruction, but that’s a choice you’re going to have 

to make on the limiting instruction in whether you 

want to highlight it to the members, specifically if 

the enlisted members did not know who he was, or 

whether you want me to give them a limiting 

instruction telling them that they should not consider 

it whatsoever, the fact that the convening authority 

sat in for the closing arguments. 

DC: No, we’re not going to highlight it at this time. 

MJ: Do you have any other remedy that you would 

desire? 

DC: There’s no other remedy that would be effective 

other than a mistrial, but that’s not an option. 

MJ: Well, you’re not getting a mistrial so is there 

anything else you want? 

DC: Nothing else we can ask for. 

MJ: Then I’ll be glad to give a limiting instruction. 

DC: No, sir. 

MJ: Do you desire to voir dire any of the members? 

DC: No, sir. 

MJ: Anything else we need to take up? 

TC: No, sir. 

MJ: Staff Sergeant Perez, let’s call the members in. 
United States v. Harvey, No. 04-0801/MC 

6

The Article 39(a) session terminated.3

Following the session pursuant to Article 39(a), Uniform 

Code of Military Justice (UCMJ), 10 U.S.C. § 839(a) (2000), the 

military judge, the trial counsel, and the trial defense counsel 

took no further action to address the issue of unlawful command 

influence. The court-martial eventually convicted Appellant on 

charges of conspiracy, false official statement, wrongful use of 

lysergic acid diethylamide (LSD), methamphetamine, and cocaine, 

wrongful inhalation of “Glade” aerosol with the intent to become 

intoxicated, wrongful possession of methamphetamine and cocaine, 

and communication of a threat (two specifications).4 

On appeal Appellant asserts that the military judge failed 

to conduct further inquiry to establish what impact, if any, the 

convening authority’s presence had on the proceedings and erred 

in summarily denying the defense’s motion for mistrial. More 

specifically, Appellant makes four points to support this 

argument: (1) the facts surrounding the convening authority’s 

presence in the courtroom satisfy the low threshold in Biagase5

of demonstrating some evidence of unlawful command influence; 

 

3

 United States v. Harvey, 60 M.J. 611, 613-14 (N-M. Ct. Crim. 

App. 2004). 

4

 These offenses are punishable under Articles 81, 107, 112a, and 

134, UCMJ, 10 U.S.C. §§ 881, 907, 912a, 934 (2000), 

respectively. Appellant was sentenced to confinement for sixty 

days, reduction to pay grade E-1, forfeiture of $639.00 pay per 

month for two months, and a bad-conduct discharge. The 

convening authority disapproved the finding of guilty of 

wrongful use of LSD and approved the sentence as adjudged. 

5

 50 M.J. at 150. 
United States v. Harvey, No. 04-0801/MC 

7

(2) the military judge failed to conduct further inquiry to 

establish what impact the convening authority’s presence had on 

the proceedings; (3) the military judge erred in failing to 

shift the burden to the Government to disprove the existence of 

unlawful command influence; and (4) the Government did not 

adequately rebut the presumption of unlawful command influence 

beyond a reasonable doubt. 

The Government reply is simply that the military judge did 

not abuse his discretion in denying the defense motion for a 

mistrial. The Government asserts that the mere presence of the 

convening authority at the closing argument does not raise the 

issue of unlawful command influence as there was no evidence 

that his presence had any effect on the members’ deliberations. 

Indeed, the Government argues that “the presence of the 

convening authority should be presumed to have a salutary 

effect” because it “demonstrates to all participants and the 

command the convening authority’s interest” in observing 

military justice in action. 

II. DISCUSSION 

A. Issue I: Alleged unlawful command influence 

1. The analytical framework for addressing the issue of

unlawful command influence

Recently in Gore, we discussed the statutory prohibition 

against unlawful command influence and explained the pivotal 
United States v. Harvey, No. 04-0801/MC 

8

role of this Court in protecting against unlawful command 

influence, stating: 

Unlawful command influence is prohibited under Article 

37(a), UCMJ, 10 U.S.C. § 837(a) (2000), which states, 

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 exercises of its 

or his functions in the conduct of the proceedings. 

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. . . . 

The importance of this prohibition is reflected in our 

observation, that “a prime motivation for establishing a 

civilian Court of Military Appeals was to erect a further 

bulwark against impermissible command influence.” United 

States v. Thomas, 22 M.J. 388, 393 (C.M.A. 1986).6 

Our responsibility to protect the military justice system 

against unlawful command influence comes from our statutory 

mandate to provide oversight of the military justice system.7 We 

share this responsibility with military commanders, staff judge 

advocates, military judges, and others involved in the 

administration of military justice. Fulfilling this 

responsibility is fundamental to fostering public confidence in 

the actual and apparent fairness of our system of justice. It 

 

6

 60 M.J. at 185 (ellipsis in original). 

7

 See Articles 37(a) and 98, UCMJ, 10 U.S.C. §§ 837(a), 898 

(2000); see also Noyd v. Bond, 395 U.S. 683, 695 (1969) 

(recognizing that it was in this Court that “Congress has 

confided primary responsibility for the supervision of military 

justice in this country and abroad”). 
United States v. Harvey, No. 04-0801/MC 

9

is the experience of this Court that unlawful command influence 

is not a virus that a one-time judicial remedy, treatment, or 

inoculation can irrevocably extinguish from our military justice 

community.8 On the contrary, because the inherent power and 

influence of command are necessary and omnipresent facets of 

military life, everyone involved in both unit command and in 

military justice must exercise constant vigilance to protect 

against command influence becoming unlawful. 

Illustrative of this shared responsibility to protect 

against unlawful command influence, in Biagase,9 we explicitly 

stated that a primary duty of the military judge in a courtmartial is to protect against unlawful command influence. 

Indeed, Biagase underscored the role of the military judge as 

the “last sentinel,” an essential guard at the trial level, to 

protect against unlawful command influence.10 

Biagase reaffirms the unique and important duties that 

military judges have when addressing command influence issues. 

We noted in Biagase the utility of the military judge making 

detailed findings of fact. But the focus of Biagase is on the 

 

8

 See United States v. Stombaugh, 40 M.J. 208, 211 (C.M.A. 1994) 

(detailing “many instances of unlawful command influence” that 

this Court has condemned). 

9

 50 M.J. at 152. 

10 In Biagase, we reaffirmed what we first stated in Rivers, 49 

M.J. at 443, that the military judge is the “‘last sentinel’ to 

protect the court-martial from unlawful command influence.” 

Id.; see Patricia A. Ham, Revitalizing the Last Sentinel: The 

Year in Unlawful Command Influence, Army Law., May 2005, at 1. 
United States v. Harvey, No. 04-0801/MC 

10

military judge’s duty to allocate the burdens between the 

prosecution and the defense. 

In discharging his duty of allocating the burden, the 

military judge engages in a two-stage process to permit the 

parties to establish the factual predicate related to any issues 

of unlawful command influence. The military judge initially 

requires the defense to carry the burden of raising an unlawful 

command influence issue. This threshold showing must be more 

than mere “command influence in the air”11 or speculation.12 But 

because of the congressional prohibition against unlawful 

command influence and its invidious impact on the public 

perception of a fair trial, we have stated that this threshold 

is low.13 The test is “some evidence” of “facts which, if true, 

constitute unlawful command influence, and that the alleged 

unlawful command influence has a logical connection to the 

court-martial in terms of its potential to cause unfairness in 

the proceedings.”14 

If the military judge concludes that the defense has raised 

the issue of unlawful command influence, the burden shifts to 

the government to show either that there was no unlawful command 

 

11 United States v. Johnson, 54 M.J. 32, 34 (C.A.A.F. 2000) 

(“However, ‘proof of [command influence] in the air, so to 

speak, will not do.’” (quoting United States v. Allen, 33 M.J. 

209, 212 (C.M.A. 1991))). 

12 Biagase, 50 M.J. at 150 (citing United States v. Johnston, 39 

M.J. 242, 244 (C.M.A. 1994)). 

13 Id. (citing Johnston, 39 M.J. at 244). 

14 Id. (citations and quotation marks omitted). 
United States v. Harvey, No. 04-0801/MC 

11

influence or that the unlawful command influence did not affect 

the proceedings.15 In Biagase, we set forth the three options 

available to the government: “[T]he Government must prove 

beyond a reasonable doubt: (1) that the predicate facts do not 

exist; or (2) that the facts do not constitute unlawful command 

influence; or (3) that the unlawful command influence will not 

prejudice the proceedings or did not affect the findings and 

sentence.”16

The Biagase analysis we have established for the military 

judge is rooted in the approach that we have applied on appeal 

for over a decade. “On appeal, an appellant must ‘(1) show 

facts which, if true, constitute unlawful command influence; (2) 

show that the proceedings were unfair; and (3) show that the 

unlawful command influence was the cause of the unfairness.’”17

With this well-established analysis to evaluate allegations 

of unlawful command influence, we proceed to apply this analysis 

in this case. 

2. Our evaluation of both the military judge and the lower 

court considering the command influence issue

 The lower court shared the apparent view of the military 

judge that the defense did not meet its burden of raising the 

 

15 Id. at 151. 

16 Id. 17 United States v. Dugan, 58 M.J. 253, 258 (C.A.A.F. 2003) 

(citing Stombaugh, 40 M.J. at 213). 
United States v. Harvey, No. 04-0801/MC 

12

issue of unlawful command influence.18 The lower court reasoned 

that the mere presence of the convening authority was 

insufficient to raise the issue of unlawful command influence 

and that the trial defense counsel only had presented “an 

unsupported allegation . . . [supported only by] speculation.”19 

Specifically, the lower court explained that there was no 

evidence that the members either saw or recognized the convening 

authority, or that his presence influenced the members.20 

 In light of the ruling of both the military judge and the 

lower court, the pivotal issue is whether the trial defense 

counsel carried the initial burden of raising the unlawful 

command influence issue. Our sole concern here is whether the 

defense produced “some evidence” of “facts which, if true, 

constitute unlawful command influence and that the alleged 

unlawful command influence has a logical connection to the 

court-martial in terms of its potential to cause unfairness in 

the proceedings.”21 We review this issue de novo.22

 

18 Harvey, 60 M.J. at 614. 

19 Id. 20 Id. 21 Biagase, 50 M.J. at 150 (citations and quotation marks 

omitted). 

22 United States v. Wallace, 39 M.J. 284, 286 (C.M.A. 1994) 

(“Where the issue of unlawful command influence is litigated on 

the record, the military judge’s findings of fact are reviewed 

under a clearly-erroneous standard, but the question of command 

influence flowing from those facts is a question of law that 

this Court reviews de novo.”). 
United States v. Harvey, No. 04-0801/MC 

13

 At the outset we hold that there are errors in the analysis 

of both the lower court and the military judge. Indeed, we 

conclude that the military judge erred in applying the Biagase

analysis. First, he erred in concluding that the defense had 

not produced “some evidence” sufficient to raise the issue of 

unlawful command influence. Second, having made this error, the 

military judge never shifted the burden to the Government to 

prove there was no unlawful command influence. 

As both the lower court and the military judge erred in 

concluding that the defense had not produced “some evidence” 

sufficient to raise the issue of unlawful command influence, we 

address this error first.23 

In our view, the record establishes the low threshold of 

“some evidence” to raise the issue of unlawful command 

influence.24 To his credit, the military judge spotted the 

potential unlawful command influence issue but then failed to 

apprehend the significance of this issue in the context of the 

trial developments. 

At trial it was the military judge who lanced open the 

unlawful command influence issue when the convening authority 

 

23 See Dugan, 58 M.J. at 258 (holding that both the lower court 

and the military judge erred in concluding that the appellant 

did not meet the initial burden of raising the issue of unlawful 

command influence). 

24 Id. (holding that “to the extent the military judge and the 

Court of Criminal Appeals concluded Appellant did not meet his 

initial burden of raising the issue of unlawful command 

influence, they erred”). 
United States v. Harvey, No. 04-0801/MC 

14

appeared in the courtroom during the closing arguments. The 

military judge raised the issue of command influence in an ex 

parte inquiry to the Government counsel at the first available 

recess. Major (MAJ) Loughlin’s appearance created enough of a 

concern that the military judge then felt it necessary to raise 

the issue on the record in an Article 39(a), UCMJ, session. 

 Several circumstances made the convening authority’s 

presence in the courtroom particularly problematic. First, MAJ 

Loughlin was wearing his flight suit when he entered the 

courtroom, and throughout the trial of this case the Government 

characterized Appellant’s misconduct as a direct threat to the 

safety of the aviation community. 

Second, although the military judge explicitly stated that 

he had “no idea” whether the members recognized MAJ Loughlin or 

whether they knew who he was, the trial developments were 

inconsistent with this assertion, and in fact established the 

members’ knowledge of the convening authority. We acknowledge 

that trial defense counsel, as an officer of the court, 

characterized the relationship between MAJ Loughlin and the 

senior member as “intimately familiar.”25 But what we also 

consider important here is that trial defense counsel had 

unsuccessfully challenged for cause the senior member because 

 

25 We afford this assertion little weight, as the voir dire of 

this member had already established that there was no 

“relationship” between this member and the convening authority. 
United States v. Harvey, No. 04-0801/MC 

15

she personally knew the convening authority and was a 

subordinate member of his command. Indeed, the military judge 

expressly acknowledged that the senior member and MAJ Loughlin 

knew each other. 

Third, the trial defense counsel specifically asserted that 

it was “obvious during the whole closing argument that the panel 

was looking over our shoulder.” While the military judge 

replied that he “didn’t see that,” he did not inquire further 

into this matter. In light of all the other trial developments, 

we conclude that the military judge’s observations are 

insufficient to negate the other evidence of possible unlawful 

command influence. 

 Here, we share the military judge’s judicial instinct in 

questioning the presence of the convening authority at the 

court-martial. A court-martial is a public trial.26 There is no 

rule that the convening authority cannot attend a courtmartial.27 But, as this case illustrates, the presence of the 

convening authority at a court-martial may raise issues. 

 

26 “The sixth amendment right to a public trial belongs to the 

defendant rather than the public; a separate first amendment 

right governs the interests of the public and the press in 

attending a trial.” 5 Wayne R. LaFave et al., Criminal 

Procedure, § 24.1(a), at 450 (2d ed. 1999). 

27 Attendance by the convening authority at a court-martial is 

subject to the military judge’s authority to close the court to 

the public or specific individuals. See United States v. Short, 

41 M.J. 42, 43 (C.M.A. 1994) (“The right to an open and public 

court-martial is not absolute, however, and a court-martial can 

be closed to the public or individuals can be excluded in the 
United States v. Harvey, No. 04-0801/MC 

16

Therefore, before attending a court-martial, a convening 

authority should give prudent and careful consideration as to 

the impact one’s presence could have on both the proceedings and 

the perception of fairness of the court-martial. In this 

regard, we encourage a convening authority to initiate a 

dialogue with both the command staff judge advocate and the 

trial counsel before entering a courtroom. Discussing this 

matter with these lawyers would permit them to advise the 

convening authority of both general and case specific issues 

that may be raised by the convening authority’s presence at the 

court-martial. It would also afford the trial counsel the 

opportunity to advise both the military judge and the trial 

defense counsel of the presence of the convening authority in 

advance, so that the matter can be discussed with the military 

judge and any issues litigated before the convening authority is 

present in court before the panel members. 

 The military judge and the lower court focused on the 

failure of the trial defense counsel to avail himself of the 

opportunity that the military judge gave to voir dire the panel. 

This view misapprehends the law regarding unlawful command 

influence. 

Again, we reaffirm that the law of unlawful command 

influence establishes a low threshold for the defense to present 

 

discretion of the military judge.”); Rule for Courts-Martial 

(R.C.M.) 806(b). 
United States v. Harvey, No. 04-0801/MC 

17

“some evidence” of unlawful command influence.28 Long ago in 

United States v. Rosser,29 we made clear that this Court will be 

vigilant in protecting a court-martial from improper influence 

by the convening authority. In Rosser, we held that the 

military judge failed to make an appropriate “inquiry into the 

particular facts and circumstances” regarding the 

“eavesdrop[ping]” of a company commander and accuser in the 

case, on court-martial proceedings.30 We reversed the case 

because the military judge was “remiss in his affirmative 

responsibilities to avoid the appearance of evil in his 

courtroom and to foster public confidence in court-martial 

proceedings.”31 Our holding in Rosser is rooted, in part, in our 

concern about the impact on a court-martial of the presence of 

the convening authority at trial. In light of this precedent 

and the facts of this case, we hold the trial defense counsel 

here met the low threshold of presenting “some evidence” of 

unlawful command influence. 

The military judge misevaluated the evidence that raised 

the issue of unlawful command influence. In the case before us, 

we have “some evidence” which could constitute unlawful command 

influence. The military judge then compounded the impact of 

 

28 Biagase, 50 M.J. at 150 (citations and quotation marks 

omitted). 29 6 M.J. 267, 269-73 (C.M.A. 1979). 

30 Id. at 270-73. 

31 Id. at 273. 
United States v. Harvey, No. 04-0801/MC 

18

this error by not calling upon the Government to rebut the 

existence of the command influence or to establish that it did 

not prejudice the proceedings. 

Let there be no misunderstanding, we do not hold that the 

military judge was required to grant the defense motion for a 

mistrial based on the evidence before him at that time. 

Instead, as the “last sentinel” at trial to protect against 

unlawful command influence, the military judge had a duty to 

inquire further into this matter. As he did not and the 

evidence before him raised the issue of unlawful command 

influence, our attention is directed to the military judge’s 

errors relating to failure to allocate properly the burden 

between the parties as required by Biagase. We now turn to the 

remedy we should employ to address this unresolved appearance of 

unlawful command influence. 

3. The remedy

A military judge is empowered to protect against unlawful 

command influence. Also, the military judge has great 

discretion in fashioning a remedy.32 But, as the military judge 

misapprehended the nature and degree of the potential unlawful 

command influence here, he did not call upon the Government to 

meet its burden nor did he take corrective action that might 

 

32 Gore, 60 M.J. 186-89; Rivers, 49 M.J. at 444. 
United States v. Harvey, No. 04-0801/MC 

19

have permitted the trial to proceed fairly. Therefore, this 

Court must fashion a remedy for the error in this case. 

Appellant seeks a dismissal with prejudice as a remedy. 

Responding to this claim for relief, we find guidance in our 

precedent stating: “We have long held that dismissal is a 

drastic remedy and courts must look to see whether alternative 

remedies are available.”33 We further reasoned that “dismissal 

of charges is permissible when necessary to avoid prejudice 

against the accused and the findings of fact of the military 

judge documented the prejudice to Appellant from the egregious 

error in this case . . . .”34 Applying this precedent here we 

consider several factors: the nature of the error, alternative 

remedies, and possible prejudice to Appellant. 

Initially, we focus on the nature and severity of the 

problem. Here, we have unrebutted evidence raising the issue of 

unlawful command influence in the courtroom. It is an 

undisputed fact that MAJ Loughlin, the officer who convened the 

court-martial, was present in his flight suit in the courtroom 

during closing arguments of counsel on findings. This occurred 

after the Government had characterized Appellant’s misconduct 

throughout the trial as a direct threat to the safety of the 

aviation community. Also, the senior member was a member of MAJ 

Loughlin’s squadron. She therefore had an understanding of his 

 

33 Gore, 60 M.J. at 187. 

34 Id.
United States v. Harvey, No. 04-0801/MC 

20

position and knew him. Again, the failure of the military judge 

to allocate the burden between the parties resulted in an 

inadequate factual basis as to the exact nature and extent of 

any unlawful command influence that might have been created with 

regard to the senior member, or any other members of the courtmartial. 

This situation invites us to consider possible methods to 

obtain these facts. We have embraced an evidentiary hearing in 

United States v. DuBay35 as a method to develop facts necessary 

for appellate review.36 The so-called “DuBay hearing” has since 

become a well-accepted procedural tool for addressing a wide 

range of post-trial collateral issues.37 Such a hearing possibly 

would afford the parties the opportunity to address both the 

nature and the extent of the command influence, and its impact 

on the proceedings. But we reject this alternative remedy for 

three reasons. 

At an evidentiary hearing, the predicate facts that raise 

the issue of unlawful command influence will not be in dispute. 

This is so because the evidence of unlawful command influence 

stems from the undisputed fact that MAJ Loughlin, the officer 

who convened the court-martial, was present and in his flight 

 

35 17 C.M.A. 147, 37 C.M.R. 411 (1967).

36 Indeed, in DuBay, we remanded that case for a factfinding 

hearing on post-trial claims of unlawful command influence. 17 

C.M.A. at 148-49, 37 C.M.R. at 412-13. 

37 United States v. Fagan, 59 M.J. 238, 241 (C.A.A.F. 2004). 
United States v. Harvey, No. 04-0801/MC 

21

suit during closing arguments of counsel on findings. It is 

also undisputed that at least one of the court-martial members 

knew MAJ Loughlin well. Indeed, that member was the senior 

member of the panel and was a subordinate in the chain of 

command to MAJ Loughlin. 

Therefore, the Government has two options: (1) show that 

these facts did not rise to the level of unlawful command 

influence; or (2) establish that the convening authority’s 

presence had no prejudicial impact.38 

We have stated that where the question of unlawful command 

influence involves court members, Military Rule of Evidence 

(M.R.E.) 606(b) limits the government’s opportunity to establish 

that the unlawful command influence had no impact on the 

proceedings: 

This rule prohibits inquiry into two types of matters: (1) 

“any matter or statement occurring during the course of the 

deliberations,” and (2) “the effect of anything upon [a] 

member’s or any other member’s mind or emotions as 

influencing the member to assent to or dissent from the 

findings or sentence or concerning the member’s mental 

process in connection therewith[.]” 

The rule has three exceptions to the first prohibition, one 

of which permits testimony about “any matter or statement” 

occurring during the deliberations when there is a 

“question whether . . . there was unlawful command 

influence.” The exceptions, however, do not permit 

circumvention of the second prohibition (inquiry into the 

effect on a member).39

 

38 Biagase, 50 M.J. at 151. 

39 Dugan, 58 M.J. at 259-60. 
United States v. Harvey, No. 04-0801/MC 

22

Therefore, in light of M.R.E. 606(b), there could only be 

an inquiry of the members regarding what, if anything, was said 

during deliberations about the commander’s presence in the 

courtroom and their relationship with him. No one could 

question the members, however, as to the impact of the convening 

authority’s presence in the courtroom “on any member’s mind, 

emotions, or mental processes.”40

In considering the option of such a narrowly focused DuBay

hearing, we must bear in mind the present posture of this case, 

including the assertion of excessive post-trial delay presented 

in granted Issue II. We discuss this issue of post-trial delay 

in greater detail later in this opinion. It is sufficient at 

this point to note that Appellant’s claim as to Issue II is 

meritorious and impacts the remedy we fashion to address the 

error relating to the alleged unlawful command influence. 

We note that the panel’s deliberation occurred almost seven 

years ago. Because of the serious nature of the error here 

involving the fundamental fairness of the court-martial and in 

light of the post-trial delay, a DuBay hearing is not 

appropriate. The extraordinary unexplained delay here is a 

significant factor in our declining to order a DuBay hearing.41 

 

40 Id. at 260. 

41 United States v. Wilson, 10 C.M.A. 398, 403, 27 C.M.R. 472, 

477 (C.M.A. 1959) (“From the historic day at Runnymede, in 1215, 

when the English barons exacted the Magna Carta from King John, 

a guiding principle in English, and later American, 
United States v. Harvey, No. 04-0801/MC 

23

In this case, the appropriate remedy is to set aside the 

findings and sentence without prejudice thereby permitting a 

rehearing. This remedy is proportionate to three circumstances 

here: (1) the military judge failing to allocate properly the 

burden between the parties notwithstanding the defense having 

established “some evidence” of unlawful command influence; (2) 

the prosecution’s failure to rebut the taint of unlawful command 

influence; and (3) the excessive and unreasonable post-trial 

delay. 

B. Issue II: Denial of speedy appellate review 

Appellant asserts that the 2,031 days for a first-level 

appellate review by a service court of criminal appeals was a 

constitutional due process violation. In Toohey v. United 

States,42 this Court identified four factors in determining 

whether post-trial delay violates due process rights: (1) the 

length of the delay; (2) the reasons for the delay; (3) the 

appellant’s assertion of his right to a timely review; and (4) 

 

jurisprudence has been that justice delayed is justice 

denied.”). 

42 60 M.J. 100 (C.A.A.F. 2004). In Toohey, this Court held that 

the appellant established a threshold showing of facially 

unreasonable delay, even without showing prejudice. Id. at 103. 

This Court remanded to the United States Navy-Marine Corps Court 

of Criminal Appeals for it to determine whether the lengthy 

delay violated the appellant’s Fifth Amendment right to due 

process and whether the delay warranted some form of relief. 

Id. at 104. 
United States v. Harvey, No. 04-0801/MC 

24

prejudice to the appellant.43 More recently in United States v. 

Moreno,44 this Court explained, “Once this due process analysis 

is triggered by a facially unreasonable delay, the four factors 

are balanced, with no single factor being required to find that 

post-trial delay constitutes a due process violation.”45 

Consistent with this precedent, we evaluate these four factors. 

1. Length of the delay

Simply stated, the 2,031 days for a first-level appellate 

review by a service court of criminal appeals is facially 

unreasonable as it clearly is excessive and inordinate.46 

2. Reasons for the delay

 This is not an unusually long and complex case. Also, 

there is no reasonable explanation for why it took the convening 

authority over a year to take action on Appellant’s case. Next, 

we observe that it took 701 days for Appellant’s case to be 

briefed by her assigned appellate defense counsel. But we have 

noted in both Diaz v. Judge Advocate General of the Navy,47 and 

 

43 Id. at 102 (deriving these factors from the Supreme Court’s 

speedy trial analysis in Barker v. Wingo, 407 U.S. 514, 530 

(1972)). 

44 63 M.J. 129 (C.A.A.F. 2006). 45 Id. at 136. 46 Here, 370 days passed before the convening authority acted. 

Another 195 days passed before the case was docketed at the 

lower court and a total of 2,031 days elapsed between sentencing 

and the initial decision of the lower court. It took 555 days 

for the lower court to decide Appellant’s case once the 

Government filed its brief in response to her brief. 

47 59 M.J. 34, 38 (C.A.A.F. 2003). 
United States v. Harvey, No. 04-0801/MC 

25

Moreno,48 it is the government that has the ultimate 

responsibility for the staffing and administrative management of 

the appellate review process for cases pending before the lower 

court. Moreover, the Government has failed to present any 

evidence that the Appellant benefited from the numerous delays 

requested by the appellate defense counsel. As in both Diaz and 

Moreno, we decline to hold Appellant responsible for the lack of 

“institutional vigilance” that should have been exercised in 

this case.49 

Also, the Government took 210 days to file a responsive 

brief at the lower court. The Government has not presented any 

legitimate reasons50 or exceptional circumstances for this 

lengthy period. The case had been fully briefed and submitted 

to the lower court for 555 days before the lower court issued 

its decision. Although this time period is lengthy, we “apply a 

more flexible review of this period, recognizing that it 

involves the exercise of the Court of Criminal Appeals’ judicial 

decision-making authority.”51 Nonetheless, under these 

circumstances, we conclude that this second Barker factor also 

weighs heavily in favor of Appellant. 

 

48 63 M.J. at 137. 

49 Id. (citing Diaz, 59 M.J. at 39-40). 

50 In repeated requests for enlargements at the lower court, the 

Government’s justification included assertions that appellate 

Government counsel was “maintaining a significant case load,” 

and referred to “the volume of criminal appellate work in the 

division.” 

51 Id.
United States v. Harvey, No. 04-0801/MC 

26

3. Assertion of the right to a timely review and appeal

At the lower court, Appellant belatedly asserted her right 

to a timely review on July 20, 2004. Her failure to object 

earlier is not a factor that weighs heavily against her.52 

Moreover, as the lower court decided her case within ten days of 

her belated demand, this factor weighs against Appellant, but 

not heavily.53 

4. Prejudice

A final factor is any prejudice either personally to 

Appellant or to the presentation of her case that arises from 

the excessive post-trial delay.54 Important to our analysis is 

our conclusion that Appellant’s appeal is meritorious as to 

Issue I, alleging unlawful command influence. As Appellant’s 

appeal is meritorious, she may have served oppressive 

incarceration during the appeal period. Appellant was sentenced 

to confinement for sixty days and she completed her confinement 

even before the convening authority acted. Therefore, in the 

unique facts of this case, the appellate delay here did not 

result in prolonged incarceration that may have been oppressive. 

Moreover, we have stated that one facet of prejudice is 

where an appellant demonstrates “particularized anxiety or 

 

52 Id. at 138. 

53 See id. (“[T]he weight against [the appellant] is slight given 

that the primary responsibility for speedy processing rests with 

the Government and those to whom he could complain were the ones 

responsible for the delay.”). 

54 Id. at 138-41. 
United States v. Harvey, No. 04-0801/MC 

27

concern that is distinguishable from the normal anxiety 

experienced by prisoners awaiting an appellate decision.”55

Appellant has not made such a showing here. 

The final sub-factor focuses on whether there is any 

“negative impact on [her] ability to prepare and present [her] 

defense at the rehearing.”56 We have observed that “Due to the 

passage of time, witnesses may be unavailable [and] memories may 

have faded . . . .”57 “In order to prevail on this factor an 

appellant must be able to specifically identify how he would be 

prejudiced at a rehearing due to the delay. Mere speculation is 

not enough.”58 

To satisfy this standard, Appellant asserts that a 

rehearing will be unfair or a DuBay hearing pointless. This 

generalized assertion of prejudice is insufficient to establish 

specific harm that she would encounter at a rehearing and she 

has not demonstrated prejudice.59 

 

55 Id. at 140. 

56 Id.

57 Id.

58 Id. at 140-41 (footnote omitted). 

59 We note that our recent Moreno opinion prudently leaves open 

the possibility in any later proceeding for Appellant to 

demonstrate prejudice arising from post-trial delay and states: 

We are mindful of the difficulty that an appellant and his 

appellate defense counsel may have at this juncture of the 

process in identifying problems that would hinder an 

appellant’s ability to present a defense at rehearing. If 

an appellant does experience problems in preparing for 

trial due to the delay, a Sixth Amendment speedy-trial 

motion could appropriately be brought at the trial level. 
United States v. Harvey, No. 04-0801/MC 

28

5. Conclusion –- Barker Factors

 In balancing the Barker factors, where an appellant has not 

shown prejudice under the fourth factor, “we will find a due 

process violation only when, in balancing the other three 

factors, the delay is so egregious that tolerating it would 

adversely affect the public’s perception of the fairness and 

integrity of the military justice system.”60 The unexplained and 

unreasonably lengthy delay in this case weighs heavily in 

Appellant’s favor. On balance, we conclude that Appellant was 

denied her due process right to speedy review and appeal 

notwithstanding her being unable to establish specific prejudice 

under the fourth factor. We turn next to the relief appropriate 

for this constitutional violation. 

6. Relief afforded to Appellant because of the due process 

violation for denying a speedy appellate review

As this due process error is one of constitutional 

magnitude, the burden shifts to the Government to “‘show that 

this error was harmless beyond a reasonable doubt.’”61 We are 

mindful of the fact that Appellant has not demonstrated specific 

prejudice. However, Appellant has been successful on a 

substantive issue of the appeal and a rehearing has been 

 

Id. at 141 n.19. 60 United States v. Toohey, 63 M.J. __ (20-21) (C.A.A.F. 2006). 

61 United States v. Brewer, 61 M.J. 425, 432 (C.A.A.F. 2005) 

(quoting United States v. Miller, 47 M.J. 352, 359-60 (C.A.A.F. 

1997)). 
United States v. Harvey, No. 04-0801/MC 

29

authorized. Also, we view the Barker factors weighing heavily 

in Appellant’s favor. In light of these circumstances, we 

cannot say that the Government has carried its heavy burden of 

establishing that this constitutional error arising from the 

post-trial delay is harmless beyond a reasonable doubt. 

Moreover, as our balancing reflects, we view the delay in this 

instance to have been “so egregious that tolerating it would 

adversely affect the public’s perception of the fairness and 

integrity of the military justice system.”62 As to relief from 

the due process violation arising from the excessive and 

unreasonable post-trial delay, we seek to fashion a remedy that 

will afford Appellant meaningful relief. In Moreno we addressed 

the range of relief options available.63 

 

62 Toohey, 63 M.J. at __ (21). 

63 As we stated in Moreno: 

The nature of that relief will depend on the circumstances 

of the case, the relief requested, and may include, but is 

not limited to: (a) day-for-day reduction in confinement 

or confinement credit; (b) reduction of forfeitures; (c) 

set aside of portions of an approved sentence including 

punitive discharges; (d) set aside the entire sentence, 

leaving a sentence of no punishment; (e) a limitation upon 

the sentence that may be approved by a convening authority 

following a rehearing; and (f) dismissal of the charges and 

specifications with or without prejudice. Clearly this 

range of meaningful options to remedy the denial of speedy 

post-trial processing provides reviewing authorities and 

courts with the flexibility necessary to appropriately 

address these situations on a case-by-case basis. 

63 M.J. at 143. 
United States v. Harvey, No. 04-0801/MC 

30

Initially, we note that we, in part, fashioned our relief 

as to the error arising from Issue I, authorizing a rehearing 

rather than a DuBay hearing to address the issue of unlawful 

command influence, because of the excessive post-trial delay in 

this case. Yet we conclude that further relief is warranted. 

As Appellant has served the term of confinement, day-forday credit for each day of unreasonable and unexplained posttrial delay would provide no meaningful effect. On the other 

hand, we also view dismissal with prejudice of the charges 

inappropriate under the circumstances of this case. Again, as 

in Moreno, we are obliged to fashion a remedy where we have 

authorized a rehearing and there is presently no direct sentence 

relief that we can provide Appellant. In this circumstance we 

will afford Appellant relief by limiting the sentence that may 

be approved by the convening authority should the rehearing 

result in a conviction and new sentence.64

DECISION 

The findings and sentence as approved by the convening 

authority and the decision of the United States Navy-Marine 

Corps Court of Criminal Appeals as to both findings and sentence 

are set aside without prejudice. A rehearing is authorized. In 

the event that a rehearing is held resulting in a conviction and 

 

64 See id. at 143-44. 
United States v. Harvey, No. 04-0801/MC 

31

a sentence, the convening authority may approve no portion of 

the sentence other than a punitive discharge. 
United States v. Harvey, No. 04-0801/MC 

CRAWFORD, Judge (dissenting): 

Courts-martial are public trials, and there is no 

prohibition against the convening authority attending a portion 

of the trial. I disagree with the majority that the presence of 

the convening authority during closing arguments is some 

evidence of unlawful command influence when there is no evidence 

the members either saw or recognized the convening authority. 

The military judge gave the trial defense counsel an 

opportunity to establish that the convening authority was seen 

or recognized by the members. A proffer of proof by the trial 

defense counsel that the senior member, Captain (CPT) Cisneros, 

was “intimately familiar” with the acting convening authority 

does not constitute such evidence. First, we do not know what 

that statement means. There was no indication during the voir 

dire, to include the individual voir dire, of any type of 

relationship between CPT Cisneros and the acting convening 

authority, Major (MAJ) Loughlin, other than she knew he was the 

executive officer of the squadron and she was a member of the 

same squadron. CPT Cisneros did not even know who the convening 

authority was until told at trial. 

In a squadron or a battalion unit, many members of a panel 

will know, or be familiar with, the convening authority who is 

the squadron or battalion commander. During voir dire, the 

members testified under oath that they did not have any personal 
United States v. Harvey, No. 04-0801/MC 

2

prejudices or relationships to either side of the case which 

would have an impact on their deliberations. They also 

indicated there was nothing in their past education or 

experience that would have an impact on their deliberations. 

And to the catchall question, they testified that they were not 

aware of anything else not mentioned in the questions which 

would have an influence on their deliberations. CPT Cisneros, 

MAJ Vosper, CPT Williams, and Chief Warrant Officer (CWO) Bolter 

testified they knew the convening authority. They all stated 

unequivocally that they did not feel the convening authority 

would be displeased if there was an acquittal. 

During individual voir dire, MAJ Vosper testified he was in 

the same squadron and flew with MAJ Loughlin, but he did not 

think that would have an impact or influence on him. CPT 

Cisneros knew the convening authority, MAJ Loughlin, as the 

executive officer of the headquarters squadron. Outside of the 

hearing of the members, it was clarified that MAJ Loughlin was 

the executive officer, but on the date of referral he was the 

acting convening authority. A number of the members knew 

counsel for both sides but indicated that would have no impact 

on their deliberations. The defense challenged CPT Cisneros and 

MAJ Vosper because they knew the convening authority. The trial 

counsel noted that because this was a small flight squadron, 

“Everyone is going to be affiliated with ATC or flights . . . .” 
United States v. Harvey, No. 04-0801/MC 

3

After hearing argument, the military judge denied the challenge 

for cause against CPT Cisneros and MAJ Vosper but granted 

challenges for cause against CPT Williams, CWO Bolter, and 

Master Sergeant (MSgt) Soucy. The defense then used their 

preemptory challenge against MAJ Vosper. 

The evidence during voir dire does not establish that the 

senior member of the court was “intimately familiar” beyond the 

normal relationship that exists between officers in the same 

squadron or battalion. We have never held that a statement by 

an attorney constitutes evidence or an accepted proffer. In 

essence, the majority seems to convert the statement by the 

trial defense counsel to the status of unrebutted evidence.1 

United States v. Warner, 62 M.J. 115, 125 n. (C.A.A.F. 2005). 

To convert statements by counsel and a military judge to 

findings of fact is not only new, but also unprecedented. 

This Court has guarded against unlawful command influence. 

See, e.g., United States v. Stirewalt, 60 M.J. 297, 300-01 

(C.A.A.F. 2004); United States v. Gore, 60 M.J. 178, 179-89 

 

1

 But see United States v. Gosselin, 62 M.J. 349, 353-56 

(C.A.A.F. 2006) (Crawford, J., dissenting), where this Court 

noted that statement of counsel may not be used to determine 

providency even though such is allowed by the Supreme Court. In 

this case, the statement is used as evidence. What is the 

difference? In United States v. Turner, 39 M.J. 259, 266 

(C.M.A. 1994), this Court held that a mere passing remark by 

defense counsel during his opening statement was not sufficient 

to open the door for additional evidence by the government, but 

here a mere passing statement constitutes evidence itself. 
United States v. Harvey, No. 04-0801/MC 

4

(C.A.A.F. 2004). Congress has done the same and has provided in 

Article 37(a), Uniform Code of Military Justice (UCMJ), 10 

U.S.C. § 837(a) (2000) that a convening authority “may [not] 

censure, reprimand, or admonish the court or any member.” This 

Court has now extended Article 37(a), UCMJ, far beyond its plain 

meaning, to include mere presence in the public courtroom to be 

the equivalent of a censure, reprimand, or admonishment. 

The facts presented in this case do not support the 

existence of unlawful command influence nor did the defense 

counsel’s offhanded comments amount to “some evidence” of 

unlawful command influence. “Some evidence” must be more than a 

mere allegation or speculation. See United States v. Dugan, 58 

M.J. 253, 258 (C.A.A.F. 2003). I agree with the United States 

Navy-Marine Corps Court of Criminal Appeals that “trial defense 

counsel never stated he observed who or what the members might 

have been looking at.” United States v. Harvey, 60 M.J. 611, 

614 (N-M. Ct. Crim. App. 2004). “Rather, trial defense counsel 

made the assumption that the members were looking at MAJ 

Loughlin.” Id. His assumption or suggestion that they were 

“focused on Major Loughlin is just that, a suggestion, 

assumption or speculation without deeper meaning and not 

supported by the record.” Id. The trial defense counsel was 

not even aware of the presence of MAJ Loughlin in the courtroom 

until it was brought to his attention by the military judge. 
United States v. Harvey, No. 04-0801/MC 

5

How could the trial defense counsel say with any 

credibility who or what the members were looking at or could see 

in the courtroom? Further, the military judge specifically 

stated he did not see the members “looking over [counsel’s] 

shoulder.” The defense was also given the opportunity to 

conduct a further voir dire of the members and develop other 

facts that might establish unlawful command influence. The 

failure to conduct additional voir dire of the members under 

oath and establish evidence in the record constitutes a waiver 

of the issue absent plain error. Of additional note is the fact 

that the defense counsel did not raise the issue of the 

convening authority’s involvement in his post-trial submission. 

This constitutes waiver of this issue or at least is a good 

indication of the trial defense counsel’s opinion of the merit 

of the issue. United States v. Gudmundson, 57 M.J. 493, 495 

(C.A.A.F. 2002) (holding that an accused waives the issue of a 

convening authority’s disqualification if he knows of the issue 

and fails to object (citing United States v. Fisher, 45 M.J. 

159, 163 (C.A.A.F. 1996)); United States v. Jeter, 35 M.J. 442, 

447 (C.M.A. 1992) (holding that if an accused is aware of the 

convening authority’s “personal interest” in a case and fails to 

object, the accused waives the issue); see United States v. 

Weasler, 43 M.J. 15, 19 (C.A.A.F. 1995) (concluding that an 

accused can initiate an affirmative and knowing waiver of 
United States v. Harvey, No. 04-0801/MC 

6

unlawful command influence to secure the benefits of a pretrial 

agreement). 

Essentially, the majority’s opinion allows trial defense 

counsel to create the appearance of “some evidence” by mere 

assertions on the record and create the appearance of an issue 

when in fact there is none. This opinion does not allow an 

accused to waive affirmatively an issue of unlawful command 

influence or preclude further inquiry once the issue is raised 

even if it is in his best interest not to pursue it. In fact, 

it also removes from the military judge the ability to determine 

if “some evidence” exists. Based on the majority’s opinion, if 

the phrase or concept of unlawful command influence is raised in 

any shape, form, or fashion, the military judge should assume 

“some evidence” is raised and “allocate” the burden to the 

government to meet its burden in accordance with the tests set 

out in United States v. Biagase, 50 M.J. 143, 150-51 (C.A.A.F. 

1999). 

The majority’s assertion that a United States v. DuBay, 17 

C.M.A. 147, 37 C.M.R. 411 (1967), hearing would be fruitless 

because of the passage of time is pure speculation. Whether a 

DuBay is fruitless should not be based on speculation at this 

level but should await the DuBay hearing to determine the extent 

of the members’ memories. Thus, at a minimum, I would order a 

DuBay hearing. 
United States v. Harvey, No. 04-0801/MC 

7

 Because of the lack of “some evidence” of unlawful command 

influence and the failure of the defense to accept the military 

judge’s invitation to conduct further voir dire, I respectfully 

dissent as to Issue I. 

 As to Issue II, until there has been a DuBay hearing to 

determine whether the convening authority’s presence in the 

courtroom had an impact on the proceedings,2

 there has not been a 

showing of prejudice as to findings or sentence as required by 

the Barker3

 test. The majority assumes unlawful command 

influence exists and thus, they also assume the prejudice prong 

of the Barker test has been met. 

The defense has the burden to show “some evidence” which 

would “constitute unlawful command influence.”4

 In regard to a 

due process violation for excessive post-trial delay, the 

defense also has the burden to establish prejudice.5

 The 

majority fails to hold the defense responsible for either 

burden. 

The majority has started a troubling trend of finding a 

violation of an appellant’s right to a speedy post-trial review 

 

2

 Defense counsel may show at a DuBay hearing that the rules at 

their disposal at a retrial would not be beneficial. See, e.g., 

United States v. Moreno, 63 M.J. 129, 149 (C.A.A.F. 2006) 

(Crawford, J., concurring in part and dissenting in part). 

3

 Barker v. Wingo, 407 U.S. 514, 530 (1972). 

4

 Biagase, 50 M.J. at 150 (citations and quotation marks 

omitted). 5

 United States v. Reed, 41 M.J. 449, 452 (C.A.A.F. 1995).
United States v. Harvey, No. 04-0801/MC 

8

if they find any other meritorious substantive issues in a case 

without the benefit of a post-trial hearing as required by other 

courts.6 The majority is essentially saying that if there is a 

meritorious substantive issue, the prejudice prong of Barker is 

met without fully evaluating whether there is in fact actual 

prejudice. This is not how that prong of the Barker test was 

intended to be applied. Until the defense establishes that the 

convening authority’s presence had an impact on the proceeding, 

there is no showing of actual prejudice as to the findings or 

sentence. 

I do not concur in the majority’s conclusion that 

Appellant’s post-trial due process for speedy review has been 

violated. If, in fact, there is prejudice as the majority 

asserts because of the passage of time and its effect on 

memories, why not dismiss the charges and their specifications? 

Is there really a difference in the effect of the passage of 

time on the memories of court members for the purposes of a 

DuBay hearing versus the memories of witnesses7

 for a new trial? 

 

6

 See, e.g., United States v. Alston, 412 A.2d 351, 362 (D.C. 

1980) (trial judge did not find specific prejudice because of 

the defendant’s ability to use evidence in its original form). 

7

 Military Rules of Evidence provide for assistance in refreshing 

the recollection of witnesses’ memory after a passage of time. 

 

If witnesses are not available, their former testimony 

can be introduced under the Military Rule of Evidence 

(M.R.E.) 804(b)(1) and M.R.E. 801(d)(1)(A) and (B) or 

M.R.E. 803(5). Likewise, if memories fade, they can 
United States v. Harvey, No. 04-0801/MC 

9

I would affirm the findings and sentence in this case because 

the defense has failed to meet its burdens. 

 

be refreshed under M.R.E. 612. If there is a change 

in testimony, the parties have a right to impeach the 

witness. M.R.E. 613. 

Moreno, 63 M.J. at 149 (Crawford, J., concurring in part and 

dissenting in part). 
United States v. Harvey, No. 04-0801/MC 

BAKER, Judge (dissenting): 

I do not believe Appellant has met his initial burden 

under United States v. Biagase, 50 M.J. 143, 150 (C.A.A.F. 

1999), of showing “some evidence,” which if true, would 

constitute unlawful command influence. Therefore, I 

respectfully dissent. However, while the case law does not 

require military judges to proactively intervene in the 

absence of some evidence of unlawful command influence, I 

believe they should as a matter of legal policy where, as 

in this case, the unlawful command influence door is left 

ajar. Accordingly, as a matter of legal policy, but not 

law, I agree with the disposition of this case. Based on 

the facts of this case as well as the special 

responsibility military judges have with respect to 

allegations of unlawful command influence, I believe the 

military judge should have done more to inquire of the 

members notwithstanding trial defense counsel’s decision 

not to do so himself. 

I. Application of Biagase

In Biagase this Court held that the test for raising 

unlawful command influence is “some evidence” of “facts, 

which if true, constitute unlawful command influence, and 

that the alleged unlawful command influence has a logical 

connection to the court-martial in terms of its potential 
United States v. Harvey, No. 04-0801/MC 

2

to cause unfairness in the proceedings.” Id. at 150 

(citation and quotation marks omitted). The accused bears 

the burden of establishing some evidence of unlawful 

command influence. Id. If this burden is met, then the 

burden shifts to the government to show either that there 

was no unlawful command influence or that such influence 

will not affect the proceedings. Id. (citing United States 

v. Gerlich, 45 M.J. 309, 310 (C.A.A.F. 1996)). 

The majority concludes that Appellant met his burden 

of initial persuasion based on three circumstances: the 

squadron’s executive officer (XO), who was the original 

convening authority, entered the court-martial dressed in a 

flight suit and observed closing arguments, defense counsel 

suggested that the members were distracted by the XO’s 

presence, and the military judge acknowledged that the 

squadron XO and a senior member of the panel knew one 

another. Indeed, the majority concludes that “the 

prosecution fail[ed] to rebut the taint of unlawful command 

influence” in this case. Thus, the military judge erred in 

not shifting the burden to the Government to rebut the 

evidence of unlawful command influence. 

I am not persuaded that Appellant carried his initial 

burden of establishing some evidence, which if true, would 

amount to unlawful command influence. First, unless we 
United States v. Harvey, No. 04-0801/MC 

3

adopt a per se rule barring a convening authority from 

attending a court-martial, then the original convening 

authority’s qua XO’s presence in this case, without more, 

should not amount to unlawful command influence. There 

might be arguments for barring convening authorities 

generally, or in context, from attending courts-martial. 

There are also arguments against adoption of a per se 

rule. First, the Rules for Courts-Martial (R.C.M.) 

themselves provide that courts-martial shall be open to the 

public. See R.C.M. 806(a) (“Except as otherwise provided 

in this rule, courts-martial shall be open to the 

public.”). In addition, there may be circumstances where 

the convening authority might attend a court-martial or 

series of courts-martial to set a leadership example, show 

respect for the rule of law, or perhaps ensure that an 

accused receives a fair trial. 

Second, the fact that the squadron XO of an aviation 

squadron at an air facility was wearing a flight suit, the 

customary uniform of the day on an air facility, is not 

remarkable, nor is it evidence of unlawful command 

influence. This is true, even in a case involving flight 

safety. 

Third, the majority cites to the fact that Captain 

(CPT) Cisneros, the senior member of the panel, “knew” the 
United States v. Harvey, No. 04-0801/MC 

4

XO. This is unremarkable. She was a member of the XO’s 

squadron, a fact identified and explored during voir dire, 

when trial defense counsel asked CPT Cisneros how she knew 

Major (MAJ) Loughlin, the convening authority. CPT 

Cisneros responded, “He’s the XO of H&HS, sir.” When trial 

defense counsel then asked CPT Cisneros whether there was 

“anything about [CPT Cisneros’s] relationship with [MAJ 

Loughlin] that would cause [her] to lean towards the 

government or the defense side” in this case, CPT Cisneros 

stated, “No, sir.” The member was not challenged for 

cause. So the real issue here is whether officers from the 

convening authority’s squadron should have been serving on 

this court-martial. But this is not Appellant’s claim, and 

we have not previously precluded such panel membership on 

that ground alone. Neither can we know whether Appellant 

might have thought it beneficial to have officers on his 

panel who were familiar with his reputation and performance 

in the squadron. 

Two arguments made by the trial defense counsel also 

figure into the majority’s analysis. The trial defense 

counsel asked for a mistrial on the ground that it was 

“obvious during the whole closing argument that the panel 

was looking over our shoulder.” The military judge 

disagreed and stated that he “didn’t see that.” The 
United States v. Harvey, No. 04-0801/MC 

5

military judge’s words are ambiguous. He might not have 

seen what trial defense counsel saw, or having seen what he 

saw, did not share trial defense counsel’s evaluation. 

This might have been quickly resolved had trial defense 

counsel sought to obtain some evidence of unlawful command 

influence from the members themselves when offered the 

opportunity to voir dire the members.1 

Further, the trial defense counsel stated that one of 

the members was “intimately familiar” with the convening 

authority qua XO. However, this is not a fact, nor some 

evidence, but a turn of phrase now twisted by Appellant to 

infer possibilities already addressed and resolved during 

voir dire. The member in question was familiar with the XO 

as she was an officer in his squadron. And, as established 

during voir dire, this familiarity was professional and not 

personal.2

 (The majority states that it gives this factor 

 

1

 MJ: Do you desire to voir dire any of the members? 

DC: No, sir. 

2

 Q: How is it that you know the convening authority, 

 which would be Major Loughlin? 

A: He’s the XO of H&HS, sir. 

Q: And you’re a member of that squadron? 

A: Correct, sir. 
United States v. Harvey, No. 04-0801/MC 

6

little weight. Based on the analysis above, I give it no 

weight.) 

For the reasons stated, applying the Biagase framework 

to the facts of this case, I do not believe Appellant 

carried his burden at trial of identifying some evidence, 

which if true, would amount to unlawful command influence. 

II. Legal Policy and Unlawful Command Influence

However, the analysis should not stop here, for in 

this case there is tension between two propositions, one 

founded in case law and the other found in the same case 

law’s descriptive dicta. Even if Appellant did not 

establish “some evidence” of unlawful command influence, 

was the military judge nonetheless obliged to do something 

more as a general matter, or based on the particular 

circumstances of this case, as a so-called sentinel against 

unlawful command influence? Here, I share the majority’s 

conclusion that the primary issue is whether the military 

judge properly performed his sentinel duties based on the 

presence of the convening authority in the courtroom during 

closing arguments in Appellant’s case. 

 

Q: Is there anything about your relationship with 

him that would cause you to lean towards the 

government or the defense side in this case? 

A. No, sir. 
United States v. Harvey, No. 04-0801/MC 

7

At the same time that Biagase established the 

framework for addressing unlawful command influence claims, 

it also reaffirmed that military judges “can intervene and 

protect a court-martial from the effects of unlawful 

command influence.” Biagase, 50 M.J. at 152; see also

United States v. Rivers, 49 M.J. 434, 443 (C.A.A.F. 1998) 

(“In this case, the military judge performed his duty 

admirably. His aggressive and comprehensive actions 

ensured that any effects of unlawful command influence were 

purged and that appellant’s court-martial was untainted.”); 

United States v. Stoneman, 57 M.J. 35, 42 (C.A.A.F. 2002) 

(“This Court has long recognized that, once unlawful 

command influence is raised, ‘we believe it incumbent on 

the military judge to act in the spirit of the Code by 

avoiding even the appearance of evil in his courtroom and 

by establishing the confidence of the general public in the 

fairness of the court-martial proceedings.’” (quoting 

United States v. Rosser, 6 M.J. 267, 271 (C.M.A. 1979))). 

This responsibility is distinct from the military judge’s 

other responsibilities. This responsibility emerges from 

the history, real and perceived, of unlawful command 

influence in the military justice system. It goes to the 

core of the military justice system and its capacity to be 

fair and just. It represents the crux of Congress’s 
United States v. Harvey, No. 04-0801/MC 

8

purpose in establishing a Uniform Code of Military Justice, 

an independent civilian federal court to hear appeals based 

upon it, and subsequently in establishing an independent 

military judiciary. 

When it comes to unlawful command influence, military 

judges are not mere bystanders at the courts-martial over 

which they preside. Although this Court has thus far 

declined to hold military judges independently responsible 

for identifying and remedying unlawful command influence, 

our decisions support the ability of military judges to do 

just that. See, e.g., Biagase, 50 M.J. at 152; Rivers, 49 

M.J. at 443. Thus, as distinct from the military judge’s 

responsibilities as evidentiary gatekeeper where, for 

example, the military judge is typically only required to 

act in response to counsels’ arguments, military judges in 

the unlawful command influence context have a greater 

responsibility to intervene to ensure that the proceedings 

are fair and that the record is complete. 

 In this case, the military judge could have easily 

gone one step further in testing the facts. Were members 

in fact distracted, and perhaps influenced by the convening 

authority’s presence? Or, was trial defense counsel 

incorrect in his observation that the members were looking 

over his shoulder during closing arguments? The only way 
United States v. Harvey, No. 04-0801/MC 

9

to resolve this uncertainty effectively was to ask the 

members themselves. The military judge could have taken it 

upon himself to make such inquiry, even after trial defense 

counsel declined the opportunity to do so. Although it is 

not clear from the record why trial defense counsel chose 

not to question the members himself, he may have had other 

tactical issues in mind, for example, not drawing the 

members’ attention to the convening authority. Such 

tactical decisions may be made in other cases as well, 

strengthening the need for military judges to intervene 

where there is even the mere possibility of unlawful 

command influence. Had the military judge opted to inquire 

himself, any question regarding unlawful command influence 

might well have been resolved at the trial level. 

III. Conclusion 

 Under this Court’s case law, the defense bears the 

threshold burden of showing “some evidence” of unlawful 

command influence before the burden shifts to the 

government to rebut or negate the potential of such taint. 

Biagase, 50 M.J. at 150. Absent such a showing of some 

evidence, our case law has not assigned to the military 

judge an independent duty to investigate allegations of 

unlawful command influence. Therefore, I respectfully 
United States v. Harvey, No. 04-0801/MC 

10

dissent from the majority’s application of Biagase to the 

facts of this case. 

However, as a matter of legal policy, I agree with the 

disposition in this case. Military judges should have an 

independent responsibility to look beyond counsel’s 

arguments and test the facts where the unlawful command 

influence door is left ajar and needs either to be opened 

to let in the light or firmly closed. In this case, the 

military judge could have, and should have, done more to 

determine whether the members were influenced by the 

presence of the original acting convening authority during 

closing arguments, notwithstanding trial defense counsel’s 

decision not to voir dire the members. 

In light of my conclusion that there was no legal 

error on Issue I, I agree with the majority’s conclusion 

that Appellant has not demonstrated prejudice under Barker

v. Wingo, 407 U.S. 514, 532 (1972). In any event, assuming 

Appellant was denied his due process right to timely review 

and appeal, that error was harmless beyond a reasonable 

doubt in this case. United States v. Allison, 63 M.J. 365 

(C.A.A.F. 2006).