UNITED STATES, Appellee 

v. 

Richard J. ASHBY, Captain 

U.S. Marine Corps, Appellant 

No. 08-0770 

Crim. App. No. 200000250 

United States Court of Appeals for the Armed Forces 

Argued June 24, 2009 

Decided August 31, 2009 

ERDMANN, J., delivered the opinion of the court, in which 

GOODWIN, J., and COX, and GIERKE, S.JJ., joined. STUCKY, J., 

filed a separate concurring opinion. EFFRON, C.J., and BAKER 

and RYAN, JJ., did not participate. 

Counsel 

For Appellant: Lieutenant Dillon J. Ambrose, JAGC, USN 

(argued); Lieutenant Kathleen L. Kadlec, JAGC, USN (on brief). 

For Appellee: Lieutenant Commander Paul D. Bunge, JAGC, USN 

(argued); Colonel Louis J. Puleo, USMC, and Brian K. Keller, 

Esq. (on brief). 

Military Judge: A. W. Keller 

This opinion is subject to revision before final publication. 
United States v. Ashby, No. 08-0770/MC 

2

Judge ERDMANN delivered the opinion of the court.1

 Appellant, Captain (Capt.) Richard J. Ashby, United States 

Marine Corps Reserve, was the pilot of an EA-6B Prowler aircraft 

conducting a training mission in the Italian Alps on February 3, 

1998. The Prowler’s crew consisted of Ashby, Capt. Joseph P. 

Schweitzer, who was the navigator for this mission and Ashby’s 

co-accused, and two additional electronic countermeasures 

officers. Late in the mission the aircraft was flying at lowlevels and struck weight-bearing cables of the Aple Cermis cable 

car system. As a result, a descending cable car carrying twenty 

individuals from various nations fell over 300 feet to the 

ground. All twenty passengers in the cable car were killed. 

Despite the damages that were inflicted upon the aircraft, Ashby 

piloted it to a successful emergency landing at the North 

Atlantic Treaty Organization (NATO) air base in Aviano, Italy. 

 Ashby ultimately faced two general courts-martial. At the 

first court-martial he was acquitted by members of all charged 

offenses including dereliction of duty, negligently suffering 

 

1

 Chief Judge Andrew S. Effron, Judge James E. Baker, and Judge 

Margaret A. Ryan recused themselves from this case and did not 

participate in this opinion. Judge Joseph R. Goodwin, Chief 

Judge of the United States District Court for the Southern 

District of West Virginia, sat by designation, pursuant to 

Article 142(f), Uniform Code of Military Justice (UCMJ), 10 

U.S.C. § 942(f) (2006). Senior Judge Walter T. Cox III, and 

Senior Judge H. F. “Sparky” Gierke participated in this case 

pursuant to Article 142(e)(i)(A)(iii), UCMJ, 10 U.S.C. § 

942(e)(1)(A)(iii) (2006). 
United States v. Ashby, No. 08-0770/MC 

3

military property to be damaged, recklessly damaging nonmilitary 

property, involuntary manslaughter, and negligent homicide. 

After the original charges had been referred, but before trial, 

it was discovered that a videotape taken during the flight had 

been concealed and eventually destroyed. A separate charge 

alleging two violations of Article 133, UCMJ, 10 U.S.C. § 933 

(2000), conduct unbecoming an officer and a gentleman, was 

preferred. The convening authority directed that the Article 

133, UCMJ, charge be tried in conjunction with the original 

charge. At his initial trial, however, Ashby refused to consent 

to the joinder of the Article 133, UCMJ, charge and it was 

withdrawn by the convening authority. The Article 133, UCMJ, 

charge was subsequently referred to a separate court-martial. 

At his second court-martial Ashby was convicted by members 

of two specifications of conduct unbecoming an officer and a 

gentleman in violation of Article 133, UCMJ, for obstruction of 

justice and conspiring to obstruct justice. He was sentenced to 

six months of confinement, forfeiture of all pay and allowances, 

and dismissal from the service. The convening authority 

approved the sentence and, after remand2

 and a new staff judge 

advocate (SJA) recommendation and action, the United States 

Navy-Marine Corps Court of Criminal Appeals affirmed the 

 

2

 United States v. Ashby, No. NMCCA 200000250, 2007 CCA LEXIS 

235, 2007 WL 1893626 (N-M. Ct. Crim. App. June 27, 2007). 
United States v. Ashby, No. 08-0770/MC 

4

findings and sentence. United States v. Ashby, No. NMCCA 

200000250, slip op. at 4, (N-M. Ct. Crim. App. June 17, 2008) 

(per curiam). We granted review of all nine issues submitted by 

Ashby to this court. Following a careful review of the asserted 

issues, we affirm the Court of Criminal Appeals. 

BACKGROUND

 The circumstances underlying the two Article 133, UCMJ, 

offenses commenced after Ashby had successfully made the 

emergency landing at the NATO airbase in Aviano, Italy. The 

pertinent facts were summarized as follows by the Court of 

Criminal Appeals in its first opinion in this case: 

The evidence at trial was largely undisputed 

as to what took place immediately before and 

after this tragic aviation disaster. Capt 

Schweitzer borrowed the appellant’s video camera 

for the mishap flight. It was to be his last 

flying mission prior to leaving active duty, and 

he desired to have a remembrance that would 

document for friends and family what he did as a 

naval flight officer. Record at 928; 1272-74. 

As Capt Schweitzer explained: 

I asked [Capt Ashby] over the weekend 

if I could borrow [the video camera]. 

Basically I wanted to take some low 

level -- not low level, but footage of 

basically how we were flying. It was 

the last week we were going to be 

there. I was getting out in June, and 

I wanted to have something to have so I 

could show my friends, my kids, and 

say, hey, this is what your dad 

did. . . . 

Id. at 928. Before the flight, Capt Schweitzer 

purchased a pack of two blank tapes. With the 
United States v. Ashby, No. 08-0770/MC 

5

appellant’s assistance, he loaded one of the tapes 

during the flight and shot video footage during 

three separate legs of their six-legged mission. 

Record at 931-32. Capt Schweitzer claimed at trial 

that the camera was not in use at the time of the 

mishap, which occurred on the last leg of the 

mission. Id. at 932, 980. 

 After the cable strike, the crew was well 

aware that their aircraft was seriously damaged and 

that, under the best circumstances, an emergency 

landing at the NATO air base in Aviano would be 

required. They also feared they might have to 

eject from the aircraft. After successfully 

executing an arrested landing at the Aviano air 

base, the two aft crewmembers immediately executed 

an emergency egress from the aircraft in accordance 

with standard mishap protocol. Before exiting the 

aircraft, Capt Raney, who was in the aft cockpit, 

overheard someone he believed was the appellant 

asking “Is it blank?” Id. at 1173; 1287-88. The 

appellant and Capt Schweitzer, did not egress the 

aircraft, but instead elected to remain in the 

forward cockpit discussing what to do with the 

recorded videotape. 

 Knowing that their aircraft would be 

immediately impounded and inventoried due to the 

mishap, and seeking not to have the recorded 

videotape “become an issue” during the 

investigation they knew was forthcoming, Capt 

Schweitzer ultimately told the appellant, “Let’s 

take the tape.” Record at 935, 1293, 1295; 

Prosecution Exhibit 2 at 1. Though both were 

uncertain of everything depicted on the videotape, 

Capt Schweitzer was aware that the tape, at a 

minimum, showed the mishap aircraft executing a 

flaperon roll [n5] during a ridgeline crossing on 

the first leg of the flight, and, in a separate 

segment, contained a scene of him smiling into the 

video camera while holding it in the air and 

pointing it back at himself. Record at 938, 939. 

Capt Schweitzer handed the appellant the video 

camera, and the appellant removed the recorded tape 

and substituted in its place a new and unused tape. 

Id. at 935, 1294; PE 2 at 1-2. The appellant then 

placed the recorded tape in his flight suit pocket 
United States v. Ashby, No. 08-0770/MC 

6

and exited the aircraft, leaving behind the video 

camera loaded with the unrecorded tape, along with 

the camera’s carrying bag. Record at 936, 1294; PE 

2 at 2. The recorded videotape remained in the 

appellant’s possession during the next few days (4 

to 6 February 1998), during which he and the other 

crewmembers learned that 20 people had died as a 

result of their flight mishap, that the Italian 

government had initiated a criminal investigation 

into the matter, that Italian and military defense 

counsel had been hired/detailed to represent the 

crewmembers, and that a “Command Investigation 

Board” (CIB) [n6] had been convened by the Marine 

Corps to look into the facts and circumstances 

concerning their flight. 

[FOOTNOTES] 

[n]5 A flaperon roll is a 360-degree twisting 

maneuver about the long axis of the aircraft, often 

performed during ridgeline crossings. 

[n]6 A CIB is one of several authorized methods 

specified in the Manual of the Judge Advocate 

General for investigating significant operational 

or training mishaps that involve loss of life 

and/or significant property damage. See § 0208, 

Manual of the Judge Advocate General (JAGMAN), JAG 

Instruction 5800.7D (15 March 2004). At the time 

of this incident, the CIB procedures and guidance 

were contained in § 0209 of the JAGMAN, JAG 

Instruction 5800.7C (03 October 1990). 

[______________] 

Three to four days after the mishap (on or about 

07 February 1998) the appellant was walking from 

the mess hall with Capt Schweitzer and Capt 

Seagraves. When Capt Schweitzer described the 

recorded videotape to Capt Seagraves and asked 

his opinion as to what they should do with it, 

Seagraves responded, “I would get rid of it” or 

words to that effect. Record at 937. This 

statement was made in the appellant’s presence. 

Later, fully aware that the videotape contained 

footage of his inverted ridgeline crossing and 

other segments of the mishap flight, and worried 
United States v. Ashby, No. 08-0770/MC 

7

that such would be “misinterpreted” by 

investigators, the appellant gave the videotape 

to Capt Schweitzer, who subsequently destroyed it 

by throwing it into a bonfire. Id. at 938-40, 

950, 1299. The appellant was advised of the 

tape’s destruction by Capt Schweitzer shortly 

thereafter. Id. at 950. The existence and 

destruction of this videotape only came to the 

attention of military investigators in August 

1998, once Capt Seagraves received testimonial 

immunity and elected to disclose “the truth about 

everything.” Id.

Ashby, 2007 CCA LEXIS 235, at *9-*13, 2007 WL 1893626, at *2-*3 

(footnote omitted). 

 The circumstances surrounding the removal, concealment and 

eventual destruction of the videotape resulted in two 

specifications alleging conduct unbecoming an officer and a 

gentleman under Article 133, UCMJ. The first specification 

alleged that Ashby engaged in conduct unbecoming an officer and 

a gentleman by wrongfully conspiring with Schweitzer to obstruct 

justice by endeavoring to impede an investigation. The second 

specification alleged that Ashby engaged in conduct unbecoming 

an officer and a gentleman by wrongfully endeavoring to impede 

an investigation by secreting and/or destroying evidence. 

Additional facts will be set forth in our discussion of the 

individual issues as necessary. 

DISCUSSION

I. 

WHETHER THE LOWER COURT ERRED IN HOLDING THAT THE 

EVIDENCE WAS LEGALLY SUFFICIENT TO SUPPORT A 
United States v. Ashby, No. 08-0770/MC 

8

CONVICTION UNDER ARTICLE 133, UNIFORM CODE OF MILITARY 

JUSTICE (UCMJ), FOR OBSTRUCTION OF JUSTICE OR 

CONSPIRACY TO OBSTRUCT JUSTICE. 

 In reviewing for the legal sufficiency of evidence, we take 

the facts in the light most favorable to the Government and ask 

whether those facts would permit a reasonable factfinder to find 

all the elements of the charged offenses beyond a reasonable 

doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); United 

States v. Turner, 25 M.J. 324, 324-25 (C.M.A. 1987). We review 

questions of legal sufficiency de novo. United States v. 

Chatfield, 67 M.J. 432, 441 (C.A.A.F. 2009). 

 The Court of Criminal Appeals determined that the direct 

and circumstantial evidence supported findings that (1) Ashby 

had reason to believe that there was or would be a criminal 

investigation or proceeding following the mishap, and (2) Ashby 

acted with the specific intent to obstruct the due 

administration of justice.3

 

3

 In support of these conclusions the lower court noted the 

following: (1) Ashby’s statements to the Supervisor of Flight 

at Aviano Air Base indicated that Ashby was aware of what he had 

hit, where he had hit it, and that serious concerns would be 

raised regarding the manner in which the flight was conducted; 

(2) Ashby and Schweitzer remained in the cockpit immediately 

after landing to discuss the contents of the videotape and what 

to do with it, while their fellow crewmembers immediately exited 

the aircraft pursuant to protocol; (3) Ashby and Schweitzer 

substituted a blank tape in the camera, left the camera in the 

aircraft, and took the recorded tape with them; (4) Ashby 

testified during his first court-martial that the reason they 

replaced the recorded tape with a blank one was because they 

knew that they would be subject to an AMB [Aircraft Mishap 
United States v. Ashby, No. 08-0770/MC 

9

 Before this court Ashby argues that the elements of 

obstruction of justice were not met by the evidence presented by 

the Government. Specifically, he asserts that a criminal 

proceeding was not reasonably foreseeable when he removed the 

videotape from the aircraft, and at worst, he subjectively 

believed that an administrative investigation might occur. 

Ashby also contends that there was insufficient evidence that he 

formed the specific intent to impede a criminal proceeding. He 

further argues that the evidence did not sufficiently establish 

an agreement between himself and Schweitzer to obstruct justice, 

where he “merely acceded to authority when he relinquished the 

videotape,” and did not believe that the tape would be evidence 

in a criminal proceeding. 

 The Government responds that given the nature of the mishap 

and the actions of the two coconspirators during the charged 

time period, there was sufficient evidence supporting both of 

 

Board] and would have to answer some questions; (5) Ashby 

learned on February 4, 1998, that he was under investigation by 

the Italian authorities and realized at that time that some 

other investigation may be initiated; (6) Schweitzer lacked 

candor with his squadron commander regarding whether the video 

camera had been used during the mishap flight; (7) Schweitzer’s 

testimony established that Ashby, with full knowledge of the 

ongoing Italian and CIB investigations (which could result in 

the preferral of criminal charges), heard and acceded to the 

recommendation of Capt. Seagraves to get rid of the videotape; 

and (8) Schweitzer testified that Ashby gave him the tape to 

“get rid of it,” Ashby was in agreement with him to destroy the 

tape, and he destroyed the tape with the specific intent to 

impede the Italian investigation. Ashby, 2007 CCA LEXIS 235, at 

*22-*32, 2007 WL 1893626, at *6-*10. 
United States v. Ashby, No. 08-0770/MC 

10

Ashby’s convictions. The Government urges that it is 

unrealistic to believe Ashby was unaware that a criminal 

investigation would be forthcoming at the time of his 

misconduct. 

 In analyzing this issue, we consider the elements of 

Article 133, UCMJ, conduct unbecoming an officer and a 

gentleman, as well as the elements of the underlying offenses, 

Article 134, UCMJ, 10 U.S.C. § 934 (2000), obstruction of 

justice and Article 81, UCMJ, 10 U.S.C. § 881 (2000), 

conspiracy. We recently reaffirmed that the criminal conduct 

sought to be punished by an Article 133, UCMJ, offense is the 

act of committing dishonorable or compromising conduct, 

regardless of whether the underlying conduct constitutes an 

offense under the UCMJ. United States v. Conliffe, 67 M.J. 127, 

132 (C.A.A.F. 2009) (quoting United States v. Giordano, 15 

C.M.A. 163, 168, 35 C.M.R. 135, 140 (1964)). Here, however, the 

Government chose to charge the Article 133, UCMJ, offense of 

conduct unbecoming an officer and a gentleman by incorporating 

the separate offenses of obstruction of justice and conspiracy, 

and the military judge instructed the panel on the elements of 

all three offenses. Where the Government chooses to incorporate 

separate offenses into the Article 133, UCMJ, charge and where 

the military judge has instructed on the elements of those 

offenses, we will analyze the legal sufficiency of the Article 
United States v. Ashby, No. 08-0770/MC 

11

133, UCMJ, offense by determining whether there was legally 

sufficient evidence supporting all of the elements instructed 

upon by the military judge. 

The elements of Article 133, UCMJ, are: (1) the accused 

did or omitted to do certain acts; and (2) under the 

circumstances, these acts or omissions constituted conduct 

unbecoming an officer and gentleman. Manual for Courts-Martial, 

United States pt. IV, para. 59.b (2008 ed.) (MCM). 

The elements of obstruction of justice are: (1) the 

accused wrongfully did a certain act; (2) he did so in the case 

of a person against whom he had reason to believe that there was 

or would be criminal proceedings pending; (3) he did so with the 

intent to obstruct the administration of justice; and (4) under 

the circumstances, the accused’s conduct was prejudicial to good 

order and discipline in the armed forces or was service 

discrediting. MCM pt. IV, para. 96.b. 

The elements of conspiracy to obstruct justice are: (1) 

the accused entered into an agreement with another person to 

obstruct justice; and (2) while the agreement continued to 

exist, and while the accused remained a party to the agreement, 

the accused or his coconspirator performed an overt act for the 

purpose of bringing about the object of the conspiracy. MCM pt. 

IV, para. 5.b. 
United States v. Ashby, No. 08-0770/MC 

12

 It is important to note that the time period of the two 

charged specifications was not limited to February 3, 1998, the 

date of the incident, but rather extended from that date 

through March 14, 1998, well after the date of the tape’s 

destruction. Therefore our review of the evidence as to Ashby’s 

subjective belief regarding a possible criminal investigation is 

not limited to the date of the incident. We find that the 

evidence is clearly sufficient to support Ashby’s convictions. 

 Evidence which supports a finding that Ashby had reason to 

believe that there would be a criminal proceeding pending 

against him when he removed the tape from the aircraft includes: 

(1) testimony that the plane was badly damaged and required an 

emergency landing after striking something; (2) Ashby’s 

statements during a telephone conversation shortly after the 

incident indicating that he believed that they may have struck a 

tower cable that went to a gondola and that they would get 

“drilled really hard” for it; (3) testimony that Ashby and 

Schweitzer not only took the recorded tape with the intent to 

watch it before handing it over to the authorities, but replaced 

it with a blank tape; (4) Schweitzer’s admission that he acted 

with an intent to deceive when he left the camera containing a 

blank tape in the plane; and (5) Ashby’s admission that it was 

wrong to take the videotape and that he did so because he wanted 

to view it before anyone else viewed it and could “nitpick” it. 
United States v. Ashby, No. 08-0770/MC 

13

There is additional evidence from the period of time that 

commenced when Ashby secreted the tape in his quarters until the 

time that Schweitzer destroyed the tape that supports a finding 

that Ashby had reason to believe that there was or would be 

criminal proceedings against him.4

 This includes evidence that: 

(1) on February 3, 1998, shortly after the incident, Ashby and 

Schweitzer learned that twenty people had been killed; (2) Ashby 

and Schweitzer learned as early as February 4, 1998, that they 

were under criminal investigation by the Italian authorities; 

(3) Schweitzer gave his commanding officer the impression that 

they had not used the camera during the flight; and (4) Ashby 

admitted that he feared going to an Italian jail as early as 

February 4, 1998. Based on the above evidence, a reasonable 

factfinder could have found all of the elements of obstruction 

of justice were met in this case. 

 With regard to the offense of conspiracy, a reasonable 

factfinder also could have found beyond a reasonable doubt that 

 

4

 Ashby urges that we adopt the holding in United States v. Gray, 

28 M.J. 858, 861 (A.C.M.R. 1989), which held that an official 

act or investigation must be manifest before an accused can be 

found guilty of obstruction of justice. The holding in Gray is 

not only contrary to the language of the MCM, which requires 

only proof that the accused had reason to believe that there was 

or would be criminal proceedings pending, it is contrary to this 

court’s precedent. See United States v. Barner, 56 M.J. 131, 

136 (C.A.A.F. 2001) (“[O]bstructing justice can occur where the 

appellant ‘believed that some law enforcement official of the 

military . . . would be investigating his actions.’”) (citation 

omitted). 
United States v. Ashby, No. 08-0770/MC 

14

Ashby agreed with Schweitzer to obstruct justice in a criminal 

proceeding and committed an overt act in furtherance of that 

agreement. Ashby and Schweitzer remained in the cockpit 

together after the other two crewmembers had evacuated the 

aircraft in accordance with protocol. They discussed what to do 

with the videotape, and Schweitzer told Ashby he thought they 

should take the tape. Ashby then removed the tape, replaced it 

with a blank one, and took the recorded tape with him when he 

left the aircraft. Ashby kept the tape in his quarters and did 

nothing with the tape until Schweitzer approached him about it 

several days later. After discussing what to do with the tape, 

Ashby eventually gave it to Schweitzer knowing that he was going 

to get rid of it. There is no evidence in the record which 

compels the conclusion that Ashby merely acceded to Schweitzer’s 

authority in handing over the videotape. We hold that the 

evidence presented at trial supports a finding that all of the 

elements of conspiracy were met. 

Finally, with regard to the elements of Article 133, UCMJ, 

there is legally sufficient evidence that Ashby committed the 

charged acts, as discussed above. There also is abundant 

evidence supporting a conclusion that, under the circumstances, 

Ashby’s acts or omissions constituted conduct unbecoming an 

officer and a gentleman. Ashby himself admitted that his 

actions in taking the videotape and failing to hand it over to 
United States v. Ashby, No. 08-0770/MC 

15

the authorities were wrongful. As a captain in the United 

States Marine Corps who was the pilot of an aircraft that had 

been involved in an international incident which caused the 

deaths of twenty civilians, Ashby’s conduct in concealing 

potential evidence and assisting in its destruction was clearly 

conduct unbecoming an officer and a gentleman. 

II. 

WHETHER THE LOWER COURT ERRED IN AFFIRMING THE 

MILITARY JUDGE’S DECISION TO EXPAND THE TERM “CRIMINAL 

PROCEEDING” TO INCLUDE OBSTRUCTION OF FOREIGN CRIMINAL 

PROCEEDINGS. 

Obstruction of justice underlies both of Ashby’s 

convictions for conduct unbecoming an officer and a gentleman. 

As discussed above, the members were instructed that they must 

find that Ashby’s conduct met all of the elements of the offense 

of obstruction of justice as well as the elements of the offense 

of conduct unbecoming an officer and a gentleman. One of the 

elements of obstruction of justice under Article 134, UCMJ, is 

that the accused knew or had reason to know that there would be 

“criminal proceedings” pending. MCM pt. IV, para. 96.b.(2). 

The MCM does not define “criminal proceedings,” but does 

provide: 

Examples of obstruction of justice include wrongfully 

influencing, intimidating, impeding, or injuring a 

witness, a person acting on charges under this 

chapter, an investigating officer under R.C.M. 406, or 

a party; and by means of bribery, intimidation, 

misrepresentation, or force or threat of force 
United States v. Ashby, No. 08-0770/MC 

16

delaying or preventing communication of information 

relating to a violation of any criminal statute of the 

United States to a person authorized by a department, 

agency, or armed force of the United States to conduct 

or engage in investigations or prosecutions of such 

offenses; or endeavoring to do so. 

MCM pt. IV, para. 96.c. 

Prior to trial, the military judge denied Ashby’s motion in 

limine to prevent the Government from arguing that the act of 

obstructing a foreign criminal investigation could support a 

charge of obstruction of justice. The military judge ruled that 

foreign criminal proceedings would fall under the definition of 

“criminal proceedings” in the MCM if the Government showed that 

the actions of the accused in obstructing such proceedings were 

directly prejudicial to good order and discipline or service 

discrediting. Ultimately, the military judge instructed the 

panel that the term “criminal proceedings” includes: 

obstruction of foreign criminal proceedings or 

investigations when such obstruction of the criminal 

proceedings or investigation have a direct impact upon 

the efficacy of the United States criminal justice 

system by being directly prejudicial to good order and 

discipline in the Armed Forces or being directly 

discreditable to the Armed Forces. 

In this assignment of error, Ashby argues that it is an 

unwarranted expansion of the term “criminal proceedings” to 

include foreign criminal proceedings. He argues that such an 

interpretation is contrary to both a plain reading of MCM pt. 

IV, para. 96, which contemplates obstruction of justice only in 
United States v. Ashby, No. 08-0770/MC 

17

the context of a United States criminal statute or 

investigation, as well as the body of case law on the subject. 

The Government responds that the offense of obstruction of 

justice should be broadly interpreted to include conduct that 

impedes a foreign criminal proceeding, noting that nothing in 

the MCM limits the scope of the offense to federal or military 

criminal proceedings. 

 The fact that the MCM discussion does not include a 

reference to a foreign criminal proceeding is not dispositive. 

The examples referenced in the MCM discussion are merely 

illustrative, not exclusive. See MCM pt. IV, para. 60c(6)(c): 

“If conduct by an accused does not fall under any of the listed 

offenses for violations of Article 134 in this Manual . . . a 

specification not listed in this Manual may be used to allege 

the offense.” Because neither Article 133, UCMJ, nor Article 

134, UCMJ, expressly prohibit charging an obstruction of a 

foreign investigation, the question becomes whether Ashby had 

sufficient notice that his conduct could violate Article 133, 

UCMJ. Parker v. Levy, 417 U.S. 733, 755-56 (1974). 

Due process requires that a person have fair notice that an 

act is criminal before being prosecuted for it. United States 

v. Saunders, 59 M.J. 1, 6 (C.A.A.F. 2003). The Supreme Court 

examined the issue of notice in the context of Articles 133, 

UCMJ, and 134, UCMJ, in Parker, 417 U.S. at 754-57. In 
United States v. Ashby, No. 08-0770/MC 

18

upholding the statutes against a constitutional challenge for 

vagueness, the Court noted that the statutes had been narrowed 

by example and that content was supplied by custom and usage. 

The test to be applied was articulated as: 

[v]oid for vagueness simply means that criminal 

responsibility should not attach where one could not 

reasonably understand that his contemplated conduct is 

proscribed. In determining the sufficiency of the 

notice a statute must of necessity be examined in the 

light of the conduct with which a defendant is 

charged. 

Id. at 757 (citation omitted); see United States v. Frazier, 34 

M.J. 194, 198-99 (C.M.A. 1992) (the question is whether a 

reasonable military officer would have “no doubt” that the 

charged activities constituted conduct unbecoming an officer and 

a gentleman). 

Ashby cannot fairly claim that he lacked notice of the 

criminality of his conduct by virtue of the absence of the 

inclusion of foreign criminal proceedings in the MCM. 

Undoubtedly, conduct of a United States military officer 

designed to prevent authorities of an allied foreign nation from 

investigating a fatal accident on its national soil involving 

United States military personnel may constitute conduct 

unbecoming an officer and a gentleman. See, e.g., United States 

v. Bailey, 28 M.J. 1004, 1007 (A.C.M.R. 1989) (“It can hardly be 

gainsaid that it brings discredit upon the armed forces of the 

United States when a soldier makes false statements to foreign 
United States v. Ashby, No. 08-0770/MC 

19

law enforcement officials regarding an offense in which the 

soldier is involved with a citizen of the host country.”). 

Here, a number of factors support the conclusion that Ashby had 

reasonable notice that taking the videotape from the mishap 

aircraft, secreting it in his quarters, and eventually providing 

the tape to Schweitzer to “get rid of it” was both service 

discrediting and conduct unbecoming an officer and a gentleman. 

The NATO Status of Forces Agreement (NATO SOFA) between the 

United States and Italy imposes a duty on both parties to assist 

in carrying out investigations, collecting and producing 

evidence, and handing over objects related to an offense.5

 An 

experienced officer in Ashby’s position would or should have 

been on notice of the NATO SOFA provisions.6

 As such, Ashby had 

notice that his conduct in failing to hand over a videotape that 

he knew would have evidentiary value in an Italian investigation 

violated his official duties. Notice also arises from the fact 

that acts of dishonesty and deceit are prohibited by 

illustration in both Article 133, UCMJ, and Article 134, UCMJ. 

 

5

 Agreement Between the Parties to the North Atlantic Treaty 

Regarding the Status of Forces, Article VII, para. 6(a), June 

19, 1951, 4 U.S.T. 1792, 199 U.N.T.S. 67. 

6

 Although there is no direct evidence in the record that Ashby 

had actual knowledge of this provision of the NATO SOFA, there 

is no dispute that he was aware of the agreement as he 

acknowledged his rights under that treaty when he signed the 

minutes of the Italian magistrate’s interrogation in the 

presence of his Italian counsel on February 4, 1998. 

Additionally, Ashby testified that he was on his second 

deployment to Aviano at the time of the gondola incident. 
United States v. Ashby, No. 08-0770/MC 

20

See, e.g., MCM pt. IV, paras. 59.c.(2), 77 (false pass), 78 

(obtaining services under false pretenses), and 79 (false 

swearing). In addition, common sense supports the conclusion 

that Ashby was on notice that his conduct violated the UCMJ. We 

have no doubt that Ashby, as a seasoned officer and aircraft 

pilot, understood that under the circumstances his actions would 

reflect poorly upon him as an officer and would discredit the 

service. We simply find nothing in the UCMJ or in the cases 

presented by Ashby that supports his contention that the conduct 

in this case cannot be sustained as conduct unbecoming an 

officer and a gentleman because the criminal investigation that 

was impeded was foreign rather than domestic or military.7

 

III. 

WHETHER THE LOWER COURT ERRED IN AFFIRMING THE 

MILITARY JUDGE’S DECISION TO PERMIT FAMILIES OF THE 

VICTIMS OF THE GONDOLA CRASH TO TESTIFY ON SENTENCING. 

 Over defense objection, the military judge permitted three 

family members of victims who died in the gondola incident to 

testify during the Government’s case in aggravation. The 

 

7

 Our ruling today is limited to factual situation before the 

court -- whether an Article 133, UCMJ, conduct unbecoming an 

officer and a gentleman specification is legally sufficient 

where the conduct underlying the charge was incorporated by 

reference as an Article 134, UCMJ, obstruction of justice 

charge, and where the military judge’s instruction linked the 

obstruction of the foreign criminal proceeding to conduct that 

was “directly prejudicial to good order and discipline in the 

Armed Forces or being directly discreditable to the Armed 

Forces.” 

 
United States v. Ashby, No. 08-0770/MC 

21

military judge limited the witnesses’ testimony, permitting each 

witness only to: (1) identify himself or herself as a relative 

of one of the victims; and (2) testify that not knowing what was 

on the videotape had left lingering questions regarding his or 

her loss. He concluded: 

I find that the proffered testimony of the three 

witnesses regarding their lingering questions as to 

what was on the videotape to be relevant. I also find 

that a reasonable link exists between such testimony 

and the offenses before the [c]ourt. 

I find the probative value of such testimony to 

substantially outweigh the danger of unfair prejudice, 

confusion or delay in this trial. 

 The three witnesses were Georgio Vaia, Rita Wunderlich, and 

Emma Aurich. Vaia testified he was the nephew of the gondola 

operator. He indicated that he had learned about the missing 

videotape because he followed the investigation into the 

incident. When asked whether he had lingering questions about 

the videotape, Vaia testified: 

When you have a suffering in the family, when you lose 

somebody who is very dear, a dear family member, 

however heavy that suffering may be, you try to accept 

what has happened; and that acceptance is very 

gradual, but it can be helped by knowing what has 

happened. 

Vaia affirmed that knowing that the videotape had been destroyed 

had made it difficult for him to get closure. 

 Wunderlich testified that her forty-three-year-old husband 

and six of their friends were killed in the gondola accident. 
United States v. Ashby, No. 08-0770/MC 

22

She testified that she learned about the missing videotape from 

the press. She testified that, as a result of knowing that a 

videotape had been destroyed, she had many lingering questions 

that “d[id] not give [her] any peace.” 

 Aurich was the final of the three witnesses. When asked 

who the members of her family were, she responded: “I don’t 

have anybody anymore. They are all dead.” She affirmed that 

her forty-year-old son and daughter-in-law were killed in the 

gondola accident. Aurich acknowledged that she learned of the 

missing videotape as she followed reports of the investigation. 

When asked whether she had lingering questions knowing that the 

tape had been destroyed, she responded: “Yes. Yes. I’m 

suffering. It’s painful, and I am suffering.” She affirmed 

that the lingering questions would “follow [her throughout her] 

whole life because [she did not] know how they will be 

answered.” 

 Immediately following the above testimony, the military 

judge instructed the panel members: 

[Y]ou are not invited or asked to redress any wrong 

befalling the victims’ family in this case but rather 

to perform your proper role as a representative of the 

community at large to adjudge . . . an appropriate 

sentence in this case. 

. . . [T]he conduct of the flight and the 

responsibility for the deaths and the damage to the 

aircraft have already been the subject of another 

proceeding and are not before you for resolution. 
United States v. Ashby, No. 08-0770/MC 

23

 . . . . 

So, again, during this phase of the trial, you 

will not be determining a sentence based upon either 

the deaths or damage to the aircraft. 

We review a military judge’s decision on the admission of 

evidence in aggravation at sentencing for an abuse of 

discretion. United States v. Stephens, 67 M.J. 233, 235 

(C.A.A.F. 2009). At sentencing, “trial counsel may present 

evidence as to any aggravating circumstances directly relating 

to or resulting from the offenses of which the accused has been 

found guilty.” Rule for Courts-Martial (R.C.M.) 1001(b)(4). 

Evidence in aggravation includes “evidence of . . . 

psychological . . . impact on . . . any person . . . who was the 

victim of an offense committed by the accused . . . .” Id.

Even if admissible under R.C.M. 1001(b)(4), the evidence must 

pass the balancing test of Military Rule of Evidence (M.R.E.) 

403. M.R.E. 403 states “Although relevant, evidence may be 

excluded if its probative value is substantially outweighed by 

the danger of unfair prejudice, confusion of the issues, or 

misleading the members, or by considerations of undue delay, 

waste of time, or needless presentation of cumulative evidence.” 

Where the military judge conducts a proper M.R.E. 403 balancing 

on the record, we will not overturn his ruling unless we find a 

clear abuse of discretion. Stephens, 67 M.J. at 235. Here the 

military judge performed a M.R.E. 403 balancing test and found 
United States v. Ashby, No. 08-0770/MC 

24

“the probative value of such testimony to substantially outweigh 

the danger of unfair prejudice, confusion or delay in this 

trial.” 

Ashby does not argue that the testimony fails to meet the 

requirements of R.C.M. 1001(b)(4), but does argue that admission 

of the evidence was an abuse of discretion because the 

prejudicial effect of the evidence far outweighed its probative 

value. He argues that the testimony was “enflaming” and 

unnecessarily humanized the victims, unfairly portrayed him as 

responsible for their deaths, and went beyond the military 

judge’s limited mandate. 

We disagree with Ashby’s characterization of this testimony 

and conclude that the military judge did not abuse his 

discretion in admitting it. The military judge recognized the 

possible prejudicial effect of the testimony and substantially 

limited it to include only the effect that the missing videotape 

had on the witnesses’ ability to process his or her loss. He 

ensured that the witnesses’ testimony did not go beyond those 

limitations in any meaningful way. While the testimony was 

prejudicial to the defense -- after all that is the general 

purpose of evidence in aggravation -- the evidence was not 

unfairly prejudicial. In its restricted form, the testimony was 

brief and rather straightforward. Although the record reflects 

that the witnesses were visibly emotional during their 
United States v. Ashby, No. 08-0770/MC 

25

testimony, they were not disruptively so. In its limited form, 

the admission of the testimony was not an abuse of discretion. 

IV. 

WHETHER THE LOWER COURT ERRED IN SUMMARILY DISMISSING 

APPELLANT’S ARGUMENT THAT THE MILITARY JUDGE ABUSED 

HIS DISCRETION WHEN HE DENIED THE DEFENSE MOTION FOR A 

MISTRIAL BASED ON THE TRIAL COUNSEL’S COMMENTS 

REFERENCING (1) APPELLANT’S INVOCATION OF HIS RIGHT TO 

REMAIN SILENT TO ITALIAN AUTHORITIES; AND (2) HIS 

GENERAL RIGHT TO REMAIN SILENT WITH RESPECT TO NOT 

DISCLOSING INFORMATION ABOUT THE VIDEOTAPE. 

 During her opening statement, trial counsel told the 

members that Ashby had admitted that he never told anyone about 

the videotape even though he knew that there was going to be an 

investigation into the incident. She then stated that Ashby, 

Schweitzer, and Capt. Seagraves met and discussed what they 

should do with the videotape even after they knew that twenty 

civilians had been killed and after they had appeared before an 

Italian prosecutor. She went on to tell the members: 

Even prior to that appearance before this Italian 

prosecutor, they were assigned Italian defense 

counsel. You will hear testimony by these crew 

members that they were told that they had a right to 

remain silent, similar to American law, and that they 

invoked that right to remain silent. 

 Immediately following trial counsel’s opening statement, 

the defense requested a recess and the panel members were 

excused. Trial defense counsel moved for a mistrial based on 

trial counsel’s comment about Ashby’s failure to disclose the 

existence of the tape and his invocation of his right to remain 
United States v. Ashby, No. 08-0770/MC 

26

silent. After holding an R.C.M. 915(a) hearing on the motion 

outside the presence of the panel, the military judge denied the 

motion for a mistrial. He found that, while trial counsel’s 

references to the fact that Ashby did not tell anyone about the 

videotape were based on evidence before the court, this was “not 

an area that counsel needed to be addressing.” He also found 

that trial counsel’s reference to Ashby’s invocation of his 

right to remain silent was clear error. The military judge went 

on to conclude that these errors could be appropriately 

addressed through a curative instruction. 

The military judge gave the parties an opportunity to revoir dire the members and required trial counsel to redact her 

statements. He also gave the parties an opportunity to draft a 

proposed curative instruction. The defense declined the offer 

to re-voir dire the panel and suggested that additional language 

be added to the Government’s proposed curative instruction. The 

military judge called the panel members back into the courtroom 

and instructed them: 

I want to just remind you that Captain Ashby has an 

absolute right to remain silent at all times. I want 

to remind you that you will not draw any inference 

adverse to Captain Ashby from any comment by the trial 

counsel in her opening statement that might suggest 

that Captain Ashby invoked his right to remain silent. 

You are directed to disregard any comment by trial 

counsel that may have alluded to any silence by 

Captain Ashby. You must not hold this against Captain 

Ashby for any reason, or speculate as to this matter. 

You are not permitted to consider that Captain Ashby 
United States v. Ashby, No. 08-0770/MC 

27

may have exercised his absolute right to remain 

silent, at any time, as evidence for any purpose. 

 As you know, we spent a great deal of time 

yesterday talking about the accused’s right to remain 

silent. Accordingly, Captain Ashby was not required 

to speak to anyone about the video tape. Again, to 

the extent that the trial counsel may have implied 

that he was required to speak to anyone about the 

tape, that was incorrect. 

The panel members were individually polled and each indicated 

that he would not let trial counsel’s comments impact his 

deliberations. The military judge reiterated these instructions 

at the conclusion of the evidence. 

Ashby argues that the military judge erred in finding that 

a curative instruction could alleviate the “egregious” harm 

arising from the improper comments that trial counsel made 

during her opening statement. He asserts that the comments 

suggested to the members that he had something to hide and 

argues that the error was compounded by other evidence that the 

Government introduced at trial suggesting that he exercised his 

right to remain silent.8

 The Government responds that the 

 

8

 In support of this argument, Ashby cites to the testimony of 

the Italian magistrate that: (1) he initiated a criminal 

investigation in this case on February 3, 1998; (2) on February 

4, 1998, he interrogated Ashby and the other crewmembers; and 

(3) on that day, Ashby signed a document acknowledging that he 

was the subject of an Italian criminal investigation. Ashby 

also cites to testimony that a friend of his -- Capt. M -- did 

not learn about the destruction of the videotape until Capt. 

Seagraves came out with the information. We find nothing in 

either the Italian magistrate’s or Capt. M’s testimony that can 
United States v. Ashby, No. 08-0770/MC 

28

military judge’s curative instruction was an appropriate 

remedial measure and obviated the need for a mistrial. 

R.C.M. 915(a) vests military judges with the discretion to 

declare a mistrial when “manifestly necessary in the interest of 

justice because of circumstances arising during the proceedings 

which cast substantial doubt upon the fairness of the 

proceedings.” However, the discussion to the rule advises 

caution, noting that mistrials are to be used “under urgent 

circumstances, and for plain and obvious reasons.” R.C.M. 915 

Discussion; see United States v. Garces, 32 M.J. 345, 349 

(C.M.A. 1991) (mistrial is a drastic remedy used to prevent 

miscarriage of justice). Because of the extraordinary nature of 

a mistrial, military judges should explore the option of taking 

other remedial action, such as giving curative instructions. 

United States v. Fisiorek, 43 M.J. 244, 247 (C.A.A.F. 1995); 

United States v. Evans, 27 M.J. 34, 39 (C.M.A. 1988). We will 

not reverse a military judge’s determination on a mistrial 

absent clear evidence of an abuse of discretion. United States 

v. Rushatz, 31 M.J. 450, 456 (C.M.A. 1990). 

It is blackletter law that a trial counsel may not comment 

on the accused’s exercise of his constitutionally protected 

rights, including his right to remain silent. M.R.E. 301(f)(3); 

 

be construed as an additional comment on Ashby’s exercise of his 

right to remain silent. 
United States v. Ashby, No. 08-0770/MC 

29

United States v. Moran, 65 M.J. 178, 186 (C.A.A.F. 2007). 

Therefore we concur with the military judge’s assessment that 

trial counsel’s comments referencing Ashby’s invocation of his 

right to remain silent were improper. Moran, 65 M.J. at 186-87. 

We must now determine whether the error resulted in a 

miscarriage of justice requiring a mistrial. As this error was 

of constitutional dimension, we also must determine whether the 

error and the military judge’s curative efforts rendered it 

harmless beyond a reasonable doubt. Chapman v. California, 386 

U.S. 18, 24 (1967) (“[B]efore a federal constitutional error can 

be held harmless, the court must be able to declare a belief 

that it was harmless beyond a reasonable doubt.”). 

In analyzing this question, we ask “‘whether there is a 

reasonable possibility that the evidence [or error] complained 

of might have contributed to the conviction.’” United States v. 

Paige, 67 M.J. 442, 451 (C.A.A.F. 2009) (quoting Moran, 65 M.J. 

at 187) (alteration in original). The question is not whether 

the members were “totally unaware” of the error; rather, the 

essence of a harmless error is that it was “‘unimportant in 

relation to everything else the jury considered on the issue in 

question.’” Moran, 65 M.J. at 187 (quoting Yates v. Evatt, 500 

U.S. 391, 403 (1991), overruled on other grounds by Estelle v. 

McGuire, 502 U.S. 62, 72 n.4 (1991)). We analyze trial 
United States v. Ashby, No. 08-0770/MC 

30

counsels’ comments in the context of the entire court-martial. 

Id. at 186. 

Upon consideration of the entire record, we hold that the 

error was harmless beyond a reasonable doubt. The military 

judge took immediate corrective action which included giving the 

members a curative instruction, requiring trial counsel to 

redact her statements, and asking each member individually 

whether he could follow the military judge’s instructions. He 

also reminded the members at the close of the evidence about 

Ashby’s absolute right to remain silent. Absent evidence to the 

contrary, the members are presumed to follow the military 

judge’s instructions. United States v. Jenkins, 54 M.J. 12, 20 

(C.A.A.F. 2000). We conclude that the military judge’s actions 

following the improper comment adequately cured the error and 

rendered it harmless beyond a reasonable doubt. As such, a 

mistrial was not an appropriate remedy. Rushatz, 31 M.J. at 456 

(“Giving a curative instruction, rather than declaring a 

mistrial, is the preferred remedy for curing error when court 

members have heard inadmissible evidence, as long as the 

curative instruction avoids prejudice to the accused.”) 

(citation omitted). 

V. 

WHETHER THE LOWER COURT ABUSED ITS DISCRETION IN NOT 

FINDING THAT A SENTENCE WHICH INCLUDED SIX MONTHS OF 
United States v. Ashby, No. 08-0770/MC 

31

CONFINEMENT AND AN APPROVED DISMISSAL WAS 

INAPPROPRIATELY SEVERE. 

VI. 

WHETHER THE LOWER COURT ERRED IN SUMMARILY DISMISSING 

APPELLANT’S ARGUMENT THAT THE DESTRUCTION OF THE 

VIDEOTAPE HAD NO EFFECT ON THE ADMINISTRATION OF 

JUSTICE BECAUSE IT CONTAINED NO MATERIAL EVIDENCE. 

 Having considered Issues V. and VI., we find no error and 

therefore affirm the Court of Criminal Appeals. 

VII. 

WHETHER APPELLANT’S DUE PROCESS RIGHTS HAVE BEEN 

VIOLATED BY THE UNTIMELY POST-TRIAL PROCESSING AND 

APPELLATE REVIEW OF HIS COURT-MARTIAL. 

 Over ten years have elapsed since Ashby’s trial. He was 

sentenced on May 10, 1999. The convening authority took action 

on January 3, 2000. The case was docketed at the Navy-Marine 

Corps court on March 13, 2000. On December 4, 2003, after 

filing thirty-three motions for an enlargement of time, 

appellate defense counsel filed a brief on Ashby’s behalf. The 

Government answered on September 2, 2004, after filing six 

motions for an enlargement of time. The lower court issued its 

initial decision in this case on June 27, 2007, 2,970 days -- 

over eight years -- after Ashby was sentenced. The decision on 

further review after remand was issued on June 17, 2008. 

 Despite this significant period of delay, Ashby did not 

initially complain about delay before the Court of Criminal 

Appeals. In its June 27, 2007 opinion, that court, sua sponte, 
United States v. Ashby, No. 08-0770/MC 

32

raised and addressed the issue of post-trial delay. Ashby, 2007 

CCA LEXIS 235, at *123, 2007 WL 1893626, at *42. The lower 

court found that, while the delay in this case denied Ashby his 

due process right to speedy review and appeal and was so 

egregious that tolerating it would adversely affect the public’s 

perception of the fairness and integrity of the military justice 

system, the due process violation was harmless beyond a 

reasonable doubt. Id. at *127-*129, 2007 WL 1893626, at *42-

*43. The lower court reasoned that Ashby had never asserted his 

right to a speedy review and appeal and his assignments of error 

lacked merit. Id. at *128, 2007 WL 1893626, at *43. The court 

noted that, when it reviewed the case on remand, it would 

consider at that time whether it would be appropriate to grant 

discretionary relief for the delay under Article 66(c), UCMJ, 10 

U.S.C. § 866 (2000). Id.

 When the case was returned for further review, the lower 

court reconsidered the issue of harm arising from the delay and 

reaffirmed that the constitutional error in this case remained 

harmless beyond a reasonable doubt. Ashby, No. NMCCA 200000250, 

slip op. at 4. The lower court noted that Ashby’s only 

allegation of specific prejudice -- an assertion that he would 

be prejudiced at any rehearing -- was rendered moot by the 

court’s resolution of his assignments of error against him. Id. 

The court stated: “We further find that the length of the delay 
United States v. Ashby, No. 08-0770/MC 

33

in this case does not affect the findings and sentence that 

should be approved under Article 66(c), UCMJ.” Id. 

 Before this court Ashby argues that the post-trial delay in 

his case violated his due process rights and was so 

extraordinary that the lower court should have granted him 

discretionary relief under its Article 66(c), UCMJ, authority. 

He also asserts that the lower court ignored the materials 

submitted with his second clemency request, which established 

that he suffered lost employment opportunities, was unable to 

travel, and suffered mental anguish as a result of the delay. 

The Government argues that the lower court was correct in 

ultimately denying Ashby relief and urges that providing relief 

for the delay in this case would provide Ashby with an 

undeserving windfall. 

 Article 66(c), UCMJ, vests in the Courts of Criminal 

Appeals broad authority to determine the findings and sentence 

that should be approved. Toohey v. United States, 60 M.J. 100, 

103 (C.A.A.F. 2004). In conducting its sentence appropriateness 

review under Article 66(c), UCMJ, a Court of Criminal Appeals 

has “‘broad discretion to grant or deny relief for unreasonable 

or unexplained [post-trial] delay . . . .’” United States v. 

Pflueger, 65 M.J. 127, 128 (C.A.A.F. 2007) (quoting United 

States v. Bodkins, 60 M.J. 322, 324 (C.A.A.F. 2004)) (alteration 

in original). “The power to review a case for sentence 
United States v. Ashby, No. 08-0770/MC 

34

appropriateness . . . is vested in the Courts of Criminal 

Appeals, not in [this] Court, which is limited to errors of 

law.” United States v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999). 

Here, the Court of Criminal Appeals properly performed its 

Article 66(c), UCMJ, sentence appropriateness review on the 

record, and we will not disturb its conclusion that the delay 

did not affect the findings and sentence that should be 

approved. Nor do we fault the Court of Criminal Appeals for 

failing to address Ashby’s employment prejudice argument, which 

was based upon clemency materials submitted to the convening 

authority but was not argued before that court. 

 We agree with the lower court that upon balancing the four 

factors outlined in United States v. Moreno, 63 M.J. 129, 135 

(C.A.A.F. 2006), the unreasonable post-trial delay in this case 

violated Ashby’s due process right to a speedy post-trial review 

and appeal.9 The length of delay is facially unreasonable, 

triggering the four-step inquiry and favoring Ashby in the 

balancing analysis. The second factor also favors Ashby as 

there are no legally supportable explanations for the delay. 

See Diaz v. Judge Advocate General of the Navy, 59 M.J. 34, 38-

 

9

 In assessing whether a facially unreasonable delay has resulted 

in a due process violation, we weigh the following four factors, 

as set forth in Barker v. Wingo, 407 U.S. 514, 530 (1972): (1) 

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

appellant’s assertion of the right to timely review and appeal; 

and (4) prejudice. Moreno, 63 M.J. at 135. 

 
United States v. Ashby, No. 08-0770/MC 

35

40 (C.A.A.F. 2003); Moreno, 63 M.J. at 136-38.10 The third 

factor favors the Government as Ashby did not assert his right 

to a timely review until the Court of Criminal Appeals raised 

the issue, sua sponte, in its initial decision. 

 As to the Barker prejudice factor, Ashby has not sustained 

his burden of showing particularized prejudice. After the case 

was remanded, there remained no meritorious issues which may 

have generated concern about Ashby’s ability to present a 

defense or favorable matters at a rehearing. Ashby has not 

suffered any oppressive incarceration. There is no indication 

that Ashby suffered unusual anxiety or hardship separate from 

that normally experienced by an individual awaiting an appeal. 

The fact that Ashby did not raise the issue of post-trial delay 

until after the lower court identified the issue cuts against 

his claim that he was harmed by the delay. Ashby’s belated 

claim that he lost job opportunities as a result of his 

 

10 The Supreme Court recently held that the general rule, that a 

delay caused by a defendant’s counsel is charged to the 

defendant, applies equally to privately retained or publically 

assigned counsel. Vermont v. Brillon, 129 S. Ct. 1283, 1292 

(2009). The Court noted, however, that this rule was not 

absolute and that delay resulting from a systemic breakdown in 

the public defender system could be charged to the state. Id. 

The impact of the Brillon decision on this court’s jurisprudence 

was not briefed nor argued in this appeal and it is therefore 

not appropriate for the court to address at this time. 
United States v. Ashby, No. 08-0770/MC 

36

inability to travel due to his appellate leave status does not 

establish actionable harm arising from the delay.11 

 Despite the fact that Ashby has not established prejudice 

under the Barker analysis, in balancing and weighing the four 

factors, we agree with the lower court that the delay violated 

Ashby’s due process rights to a speedy post-trial review and 

appeal.12 

 Having found a due process violation, we will grant relief 

unless we find that the Government has met its burden of showing 

that the constitutional error is harmless beyond a reasonable 

doubt. United States v. Bush, 68 M.J. 96, __ (15) (C.A.A.F. 

2009). We review de novo the question of whether the error is 

harmless beyond a reasonable doubt. Id. at 15-16 (citing United 

 

11 Ashby did not claim prejudice arising from lost employment 

opportunities before the lower court. In his brief before this 

Court and during oral argument, Ashby called our attention to a 

letter from a potential employer, dated December 17, 2005, which 

he submitted with his clemency materials when the case was 

before the convening authority a second time. The letter does 

not specifically state that the company would have hired Ashby 

if he had a DD 214. It does, however, note that Ashby was 

unable to travel and would “find it difficult to obtain a 

government security clearance.” Obtaining a DD 214 would 

alleviate Ashby’s inability to travel but, as we have affirmed 

the Article 133, UCMJ, convictions, may or may not address the 

difficulty he may have in obtaining a security clearance. Under 

the circumstances of this case, this letter does not establish 

specific prejudice under United States v. Jones, 61 M.J. 80, 85 

(C.A.A.F. 2005). 

12 See United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006) 

(instructing on how to weigh the Barker factors when the delay 

period is such that it could adversely affect the public’s 

perception of the fairness in the military justice system). 
United States v. Ashby, No. 08-0770/MC 

37

States v. Allison, 63 M.J. 365, 370 (C.A.A.F. 2006)). We 

consider the totality of the circumstances in assessing whether 

the due process violation is harmless beyond a reasonable doubt. 

Id. at 17. We recently have noted that determining whether a 

due process error was harmless beyond a reasonable doubt 

necessarily involves analyzing the case for “prejudice,” but 

that analysis for “prejudice” is separate and distinct from the 

consideration of prejudice as one of the four Barker factors. 

Id. at 18. 

 Having carefully examined the entire record, we agree with 

the lower court that, under the totality of the circumstances, 

the post-trial delay was harmless beyond a reasonable doubt. 

Finding no convincing evidence of prejudice in the record, we 

will not presume prejudice from the length of the delay alone. 

Toohey, 63 M.J. at 363. As such, considering all the 

circumstances of this case, we conclude that this error was 

harmless beyond a reasonable doubt and no relief is warranted. 

VIII. 

WHETHER THE LOWER COURT ERRED IN FINDING (1) THAT 

APPELLANT’S CASE WAS NOT TAINTED BY ACTUAL OR APPARENT 

UNLAWFUL COMMAND INFLUENCE; AND (2) THAT LTGEN PACE 

WAS NOT DISQUALIFIED TO ACT AS CONVENING AUTHORITY BY 

VIRTUE OF BEING A TYPE 2 AND TYPE 3 ACCUSER. 

 The gondola incident was the focus of a great deal of 

international and military attention. Normally, aircraft 
United States v. Ashby, No. 08-0770/MC 

38

incidents such as this one would call for an Aircraft Mishap 

Board (AMB), but in this case, Lieutenant General (Lt. Gen.) 

Pace, who was serving as the Commander, United States Marine 

Corps Forces Atlantic, and Commander, United States Marine Corps 

Forces Europe, convened a Command Investigation Board (CIB) 

headed by his deputy, Major General (Maj. Gen.) DeLong. The CIB 

was an administrative factfinding body, not a prosecutorial or 

judicial entity. The CIB recommended that the mishap aircrew be 

the subject of disciplinary or administrative action. Lt. Gen. 

Pace ultimately referred the charges to a general court-martial. 

This granted issue involves Ashby’s complaints of unlawful 

command influence -- concerning actions of the CIB, as well as 

some external actions taken outside the investigation -- and his 

separate claim that Lt. Gen. Pace was disqualified from serving 

as the convening authority in this case because he was an 

“accuser” under R.C.M. 601(c). As to these claims, we adopt the 

following relevant facts, as found by the military judge. 

On February 4, 1998, the day after the gondola accident, at 

Marine Corps Air Station, Cherry Point, North Carolina, 

Lieutenant Colonel (Lt. Col.) Watters, the Commanding Officer of 

the unit that had preceded Ashby’s unit in the rotation at 

Aviano, advised all of the officers in his squadron to make any 

low-level flight videotapes from Aviano “disappear.” Lt. Col. 
United States v. Ashby, No. 08-0770/MC 

39

Watters was relieved of his command on February 6, 1998, because 

of his speech to the officers. 

 After learning of Lt. Col. Watters’s speech and the 

existence of video of a low-level flight several months earlier, 

Maj. Gen. Ryan, the commander of the 2d Marine Aircraft Wing at 

Cherry Point, addressed all of the aircrews from the Prowler 

communities at Cherry Point at an all-officers meeting (AOM). 

During the meeting, Maj. Gen. Ryan implied that the mishap 

aircrew caused the accident and were intentionally breaking 

rules by flying too low. He was perceptibly upset during the 

meeting, and accused the Prowler community as a whole of 

violating rules on low-level flights (“flathatting”), and 

threatened them with punishment for violating flight rules. 

Maj. Gen. Ryan gave similar speeches over the next several days. 

He never specifically addressed any disciplinary proceedings 

against the mishap aircrew, what would be an appropriate 

punishment in the case, or whether fellow aviators should 

testify in the case. 

 Lt. Gen. Pace and Maj. Gen. DeLong had virtually daily 

telephonic contact throughout the duration of the CIB. These 

conversations concerned proposed findings, conclusions, and 

recommendations of the CIB. These conversations were monitored 

by Lt. Gen. Pace’s SJA. All of Lt. Gen. Pace’s suggestions to 

Maj. Gen. DeLong were to clarify issues and, in one instance, 
United States v. Ashby, No. 08-0770/MC 

40

Lt. Gen. Pace suggested two areas for additional investigation. 

Maj. Gen. DeLong also received numerous phone calls from other 

senior officers seeking information about the progress of the 

CIB, including at least one call from the Commandant of the 

Marine Corps. 

During the course of the CIB, there was intense 

international media coverage of the gondola incident and 

unsettled political relations between the United States and 

Italy. These issues were known by the CIB members. Also while 

the CIB investigation was ongoing, Brigadier General (Brig. 

Gen.) Bowden, the Assistant Wing Commander for the 2d Marine 

Aircraft Wing and Maj. Gen. Ryan’s deputy, conducted an 

investigation of Prowler aircrews at Cherry Point to determine 

whether there were systemic problems with aircrews not following 

the flight rules for low-level flights. As part of this 

investigation, each aircrew member was read his or her Article 

31, UCMJ, 10 U.S.C. § 831 (2000), rights for possible 

dereliction of duty. 

Between February 21, 1998, and March 9, 1998, draft copies 

of the CIB’s report were sent to Lt. Gen. Pace for his review 

and comments. On March 10, 1998, the final report of the CIB 

was submitted to Lt. Gen. Pace and others for their review and 

action. Each member of the CIB affirmed that his or her 

findings, opinions, and recommendations were not influenced by 
United States v. Ashby, No. 08-0770/MC 

41

any contacts with superior commands, with the exception of those 

issues raised by the testimony of one member.13

 Lt. Gen. Pace began drafting an endorsement to the CIB’s 

report. He composed it with the guidance of his legal counsel. 

The endorsement stated Lt. Gen. Pace’s intent to convene an 

Article 32, UCMJ, 10 U.S.C. § 832 (2000), investigation “to 

consider whether charges such as involuntary manslaughter or 

negligent homicide, damage to private and government property, 

and dereliction of duty should be referred to a general courtmartial” against the mishap aircrew. Lt. Gen. Pace’s 

headquarters issued a news release announcing these 

recommendations and Lt. Gen. Pace’s agreement with the CIB’s 

principal conclusion that the cause of the accident was the fact 

that the aircrew flew lower than authorized. 

On March 12, 1998, Maj. Gen. DeLong conducted a press 

conference at which he announced the CIB’s findings. During 

that press conference, he incorrectly stated that the gondola 

cable system was marked on charts available to the aircrew. 

There is no indication that this mischaracterization was 

anything other than a mistake. He also stated that the cause of 

 

13 One of the CIB members, Colonel (Col.) B, testified that some 

members of the CIB had concerns about the frequency and number 

of proposed changes being offered to their draft reports. Maj. 

Gen. DeLong was apprised of the complaint and told the CIB 

members not to be concerned about what others outside the Board 

wanted them to say in their report. 
United States v. Ashby, No. 08-0770/MC 

42

the mishap was aircrew error. After the press conference, Maj. 

Gen. DeLong met with the unit that had replaced Ashby’s unit at 

Aviano. At that meeting, he expressed his opinion that the 

aircrew was “flathatting.” 

 The original charges were preferred against the four mishap 

aircrew members on March 24, 1998, by Gunnery Sergeant Ciarlo. 

The initial Article 32, UCMJ, session was held on April 20, 

1998. The next day, Capt. Howard Marroto, an aviator assigned 

to Ashby’s unit, met with the Commandant in his Washington, D.C. 

office. The Commandant expressed that the mishap crew would be 

disciplined if they did anything wrong and that “if someone is 

guilty, they need to be punished.” Capt. Marroto is a friend of 

both Ashby and Schweitzer, though not particularly close to 

either. On May 20, 1998, Col. Triplett, the Commanding Officer 

of Marine Air Group 14, sent an e-mail to members of his 

command, cautioning them: “You need to brief your people on 

this issue. You don’t want to be drug [sic] into this mess.” 

He sent this e-mail in response to a message informing him how 

to handle inappropriate discovery requests by the defense 

counsel. 

Lt. Gen. Pace referred the original charges against Ashby 

and Schweitzer on July 10, 1998. The additional charges were 

preferred against Ashby and Schweitzer after they were arraigned 

on the original charges. After Ashby’s acquittal in his first 
United States v. Ashby, No. 08-0770/MC 

43

court-martial, the United States Ambassador to Italy stated that 

he was surprised at the verdict. In a press conference, 

President Clinton declined to comment on the acquittal, but 

Italian Prime Minister D’Alema expressed his disappointment in 

the verdict. 

Unlawful Command Influence

 We first address Ashby’s claim of unlawful command 

influence. Ashby argues that the record supports a finding that 

the CIB board was so interwoven with the prosecutorial process 

of the case that it was a “default preferral” and should not 

fall outside of the prohibition against unlawful command 

influence. He also argues that senior leadership exerted 

unlawful command influence over potential witnesses in this case 

by creating an overall “chilling environment,” and in the 

following specific actions: (1) Maj. Gen. Ryan and Maj. Gen. 

DeLong’s public speeches, amounting to “public condemnations of 

Appellant” to the pool of aviators from whom Appellant would 

select defense witnesses; (2) Brig. Gen. Bowden’s investigation 

of other Prowler crews; (3) the Commandant’s comments to Capt. 

Marotto; and (4) Col. Triplett’s e-mail to his command advising 

his command to make sure they are not “drug [sic] into this 

mess.” Ashby further contends that the established facts give 

the case the appearance of unlawful command influence. 
United States v. Ashby, No. 08-0770/MC 

44

The Government responds that Ashby has failed to identify 

any facts that, if true, would call into question the fairness 

of his court-martial. The Government urges us to reject 

Appellant’s invitation to hold that administrative proceedings 

can be the basis of a claim of unlawful command influence. The 

Government notes that all of the events relating to the CIB 

occurred before the conduct underlying the two Article 133, 

UCMJ, charges came to light. 

In Ashby’s first court-martial, the military judge 

concluded that the concept of unlawful command influence did not 

apply to actions taken by individuals during the CIB, which was 

a purely administrative board, and, nonetheless, the CIB’s 

decision did not result from outside influences. He further 

concluded that the defense had presented insufficient evidence 

of unlawful command influence to warrant shifting the burden of 

proof to the Government on the issue and, alternatively, he was 

convinced beyond a reasonable doubt that the charges against 

Ashby were free from actual or apparent unlawful command 

influence. In Ashby’s second court-martial, the military judge 

re-affirmed his findings from the first court-martial regarding 

the unlawful command influence allegations. 

 The Court of Criminal Appeals adopted the military judge’s 

findings of fact. Ashby, 2007 CCA LEXIS 235, at *88-*89, 2007 

WL 1893626, at *29. The court generally agreed with the 
United States v. Ashby, No. 08-0770/MC 

45

military judge’s position that, because the CIB was merely a 

factfinding entity and was not involved in the court-martial 

proceedings, the principle of unlawful command influence was not 

applicable to it. Id. at *90-*91, 2007 WL 1893626, at *30. 

Nonetheless, the court was convinced beyond a reasonable doubt 

that there was no unlawful command influence at any stage of the 

proceedings, noting: (1) the lack of evidence that Lt. Gen. 

Pace acted with the intent to influence the court-martial 

proceedings; and (2) the fact that Ashby had not shown that any 

of the other alleged statements or actions of leadership 

officials, made or taken in response to the gondola tragedy, had 

a specific direct or negative impact on the court-martial 

process. Id. at *91-*94, 2007 WL 1893626, at *30-*31. The 

lower court concluded that, nonetheless, no alleged unlawful 

command influence affected the instant court-martial, as: (1) 

Ashby was acquitted of all of the original charges against him; 

and (2) he had not shown that this court-martial, which was 

separate and distinct from the original court-martial, was 

affected in any way by unlawful command influence. Id. at *94-

*97, 2007 WL 1893626, at *31. 

Unlawful command influence has often been referred to as 

“the mortal enemy of military justice.” United States v. Gore, 

60 M.J. 178, 178 (C.A.A.F. 2004) (citation and quotation marks 

omitted). Article 37(a), UCMJ, 10 U.S.C. § 837(a) (2000), 
United States v. Ashby, No. 08-0770/MC 

46

provides, in relevant part: “No person subject to this chapter 

may attempt to coerce or . . . influence the action of a courtmartial or any other military tribunal or any member thereof, in 

reaching the findings or sentence in any case . . . .” Even the 

mere appearance of unlawful command influence may be “as 

devastating to the military justice system as the actual 

manipulation of any given trial.” United States v. Ayers, 54 

M.J. 85, 94-95 (C.A.A.F. 2000) (citation and quotation marks 

omitted). This Court has “repeatedly condemned unlawful command 

influence directed against prospective witnesses.” Gore, 60 

M.J. at 185. 

An accused has the initial burden of raising the issue of 

unlawful command influence. United States v. Stombaugh, 40 M.J. 

208, 213 (C.M.A. 1994). This burden at trial is to show 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. United States v. Biagase, 50 

M.J. 143, 150 (C.A.A.F. 1999). On appeal, the defense 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.’” United States v. Simpson, 58 M.J. 368, 374 

(C.A.A.F. 2003) (quoting Biagase, 50 M.J. at 150). 
United States v. Ashby, No. 08-0770/MC 

47

 We conclude that Ashby has failed to show facts which, if 

true, constituted unlawful command influence. His claims 

regarding the CIB are predicated on communications between the 

members of the CIB and various senior military officers. 

However, he has failed to show facts which, if true, would 

demonstrate that the CIB members were wrongfully influenced. 

Ashby is asking us to speculate on pressure placed on members of 

the CIB as a result of the attention that the military gave to 

this case. Mere speculation that unlawful command influence 

occurred because of a specific set of circumstances is not 

sufficient. Ashby has failed to show that the senior military 

officials’ interest in the CIB was anything other than proper, 

official, and lawfully directed at completing a quality and 

thorough investigation.14 

With regard to Ashby’s claim of unlawful command influence 

arising from the other actions by senior military officials, 

including the Commandant, Ashby has not pointed to any specific 

witnesses who decided not to testify because of the alleged 

statements by senior military officials or any other specific 

facts that the court-martial process was tainted by unlawful 

command influence. Because of the highly publicized 

 

14 We decline to adopt a blanket rule that unlawful command 

influence can never exist in the context of an administrative 

proceeding, but find that in this case it did not. 
United States v. Ashby, No. 08-0770/MC 

48

international nature of the incident, it is understandable that 

many senior military officials became publicly involved in the 

aftermath and investigation of the accident. However, there is 

no direct evidence that the actions of any of those officials 

improperly influenced Ashby’s court-martial. 

We also hold that the facts in this case did not create the 

appearance of unlawful command influence. In addressing whether 

the appearance of unlawful command influence has been created in 

a particular situation, we consider, objectively, “the 

perception of fairness in the military justice system as viewed 

through the eyes of a reasonable member of the public.” United 

States v. Lewis, 63 M.J. 405, 415 (C.A.A.F. 2006). We will find 

the appearance of unlawful command influence where “an 

objective, disinterested observer, fully informed of all the 

facts and circumstances, would harbor a significant doubt about 

the fairness of the proceeding.” Id. Under these 

circumstances, the comments made by senior military officials in 

the aftermath of the gondola accident and their official 

involvement in the investigation of the incident could not 

reasonably be perceived by a disinterested member of the public 

as improper command influence or otherwise indicative of an 

unfair proceeding. 

 As a final matter, we note that Ashby was acquitted on all 

of the charges that were filed after the CIB issued its 
United States v. Ashby, No. 08-0770/MC 

49

recommendation, and the CIB was neither aware of nor considered 

the conduct underlying the Article 133, UCMJ, charges. It is 

therefore not surprising that Ashby is unable to allege facts 

which, if true, would constitute unlawful command influence when 

the CIB members were unaware of the conduct underlying the 

current charges. 

Accuser Issue

The question of whether a convening authority is an 

“accuser” under Article 1(9), UCMJ, 10 U.S.C. § 801(9) (2000), 

is a question of law that we review de novo. See United States 

v. Conn, 6 M.J. 351, 354 (C.M.A. 1979). Under Article 1(9), 

UCMJ, an accuser is an individual: (1) “who signs and swears to 

charges”; (2) “who directs that charges nominally be signed and 

sworn to by another [type two accuser]”; or (3) “who has an 

interest other than an official interest in the prosecution of 

the accused [type three accuser].” An accuser may not convene a 

general or special court-martial, nor may he refer charges to a 

court-martial. R.C.M. 504(c)(1); R.C.M. 601(c). Convening 

authorities are not disqualified from referring charges by prior 

participation in the same case except when they have acted as 

accuser.” R.C.M. 601(c) Discussion. 

Ashby argues that the convening authority, Lt. Gen. Pace, 

should have been disqualified from serving as the convening 

authority in this case because he was an “accuser” within the 
United States v. Ashby, No. 08-0770/MC 

50

definition in Article 1(9), UCMJ. Ashby contends that Lt. Gen. 

Pace was a “type two” accuser because he essentially engineered 

the preferral process through influencing the CIB and 

identifying the charges in his endorsement of the CIB report -- 

the same charges that ultimately were preferred. Ashby asserts 

that forwarding the CIB report was the functional equivalent of 

directing specific charges to be preferred. He also argues that 

Lt. Gen. Pace was a “type three” accuser by virtue of his deep 

personal involvement in the CIB proceedings and predisposition 

towards Ashby’s guilt. The Government responds that Lt. Gen. 

Pace was not disqualified from acting as convening authority, as 

there was no evidence that he was acting improperly or in 

anything but his official capacity in taking actions regarding 

the mishap incident. 

In Ashby’s first court-martial, the military judge found 

that Lt. Gen. Pace did not “direct” the preferral of any 

particular charges against Appellant even though he forwarded 

the CIB report for the drafting of charges and mentioned some 

specific charges. The military judge noted that the similarity 

between the charges mentioned in the endorsement to the CIB and 

the charges that appeared on the charge sheet was a result of a 

legal review of the CIB. He also found that Lt. Gen. Pace’s 

interest in the disposition of the allegations and preferred 

charges was an official interest only. In Ashby’s second court-
United States v. Ashby, No. 08-0770/MC 

51

martial, the military judge ruled that Lt. Gen. Pace had no 

interest in the current charges other than an official one. 

Addressing this issue on appeal, the lower court concluded 

that Lt. Gen. Pace was neither a “type two” nor a “type three” 

accuser regarding the original charges preferred against Ashby, 

since: (1) there was no credible evidence that Lt. Gen. Pace 

“directed” that charges specifically be preferred; and (2) the 

evidence established that Lt. Gen. Pace’s interest in the 

disposition of the allegations and preferral of charges against 

Ashby was only an “official” one and that he did not abandon his 

neutral role and become an “accuser.” Ashby, 2007 CCA LEXIS 

235, at *65-*66, *70-*74, 2007 WL 1893626, at *21-*23. 

The test for determining whether a convening authority is 

an accuser is “‘whether he was so closely connected to the 

offense that a reasonable person would conclude that he had a 

personal interest in the matter.’” United States v. Voorhees, 

50 M.J. 494, 499 (C.A.A.F. 1999) (quoting United States v. 

Jackson, 3 M.J. 153, 154 (C.M.A. 1977)). “Personal interests 

relate to matters affecting the convening authority’s ego, 

family, and personal property” and “[a] convening authority’s 

dramatic expression of anger towards an accused might also 

disqualify the commander if it demonstrates personal animosity.” 

Id. We have found a personal interest where, for example, the 

convening authority is the victim in the case, United States v. 
United States v. Ashby, No. 08-0770/MC 

52

Gordon, 1 C.M.A. 255, 2 C.M.R. 161 (1952); where the accused 

attempted to blackmail the convening authority, United States v. 

Jeter, 35 M.J. 442 (C.M.A. 1992); and where the accused had 

potentially inappropriate personal contacts with the convening 

authority’s fiancée, United States v. Nix, 40 M.J. 6 (C.M.A. 

1994). 

We have carefully reviewed Ashby’s assertions, the record 

materials, and the findings of fact. We agree with the Court of 

Criminal Appeals that Lt. Gen. Pace took no actions equivalent 

to directing that charges nominally be signed and sworn to by 

another. Lt. Gen. Pace’s action in forwarding the CIB to the 

servicing legal office for consideration of appropriate charges 

was consistent with the performance of his duties as a 

commander. We presume that the legal officers properly 

performed their professional duties which included independent 

review of the evidence and preparation of only those charges for 

which they determined probable cause existed. See Article 34, 

UCMJ, 10 U.S.C. § 834 (2000) (imposing a duty on the staff judge 

advocate to prepare advice to the convening authority before a 

charge is referred to a general court-martial); United States v. 

Masusock, 1 C.M.A. 32, 35, 1 C.M.R. 32, 35 (1951) (citing the 

presumption that a public officer charged with a particular duty 

has performed it properly); United States v. Roland, 31 M.J. 

747, 750 (A.C.M.R. 1990) (“We will presume, in the absence of 
United States v. Ashby, No. 08-0770/MC 

53

evidence to the contrary, that the staff judge advocate properly 

discharged his duties.”). In this light, Lt. Gen. Pace did 

nothing to make him a nominal accuser. In addition, any claim 

that he was a “type two” accuser is diminished in the case of 

these particular charges, as they were not investigated by the 

CIB, were not encompassed in Lt. Gen. Pace’s forwarding 

endorsement to the CIB, and were independently preferred. Ashby 

has failed to show any acts by Lt. Gen. Pace that would make him 

a “type two” accuser. 

Concerning Ashby’s claim that Lt. Gen. Pace was a “type 

three” accuser, this record contains no evidence of personal 

interest or bias on the part of Lt. Gen. Pace such that he was 

transformed into a de facto accuser. Although Lt. Gen. Pace was 

involved in the preliminary investigation of the case, his 

interest appears to have been wholly official. Interest in an 

incident and the investigation thereof is not personal -- it is 

in fact the responsibility of a commander. Similarly, the 

frequency of Lt. Gen. Pace’s contact with the CIB or the number 

of times that he reviewed the draft CIB report do not reflect a 

personal rather than a professional interest. Again, we note 

that these charges stem from outside the CIB. Ashby has failed 

to show that he is entitled to relief as to this issue. 
United States v. Ashby, No. 08-0770/MC 

54

IX. 

WHETHER THE LOWER COURT ERRED IN FINDING THAT THE 

CONVENING AUTHORITY DID NOT ABUSE HIS DISCRETION IN 

FAILING TO WITHDRAW THE ARTICLE 133, UCMJ, CHARGE FROM 

REFERRAL TO A GENERAL COURT-MARTIAL ONCE APPELLANT WAS 

ACQUITTED OF THE ORIGINAL CHANGES. 

 In his final assignment of error, Ashby argues that, given 

Lt. Gen. Pace’s personal involvement in the disposition of the 

case, the media pressure surrounding it, and his acquittal on 

the original charges, Lt. Gen. Pace’s referral of the Article 

133, UCMJ, charges to a general court-martial was in bad faith 

and constituted an abuse of discretion. The Government responds 

that, considering that Ashby was a commissioned officer and that 

the charges required significant investigations, the convening 

authority’s decision to refer the case to a general courtmarital was not improper. 

R.C.M. 306(b) provides that “[a]llegations of offenses 

should be disposed of . . . at the lowest appropriate level of 

disposition . . . .” However, under R.C.M. 306 and R.C.M. 407, 

a convening authority exercising general court-martial 

jurisdiction has wide discretion to choose among a variety of 

options in disposing of a charge, including referring the 

charges to a general court-martial. See R.C.M. 407; United 

States v. Dinges, 55 M.J. 308, 314 (C.A.A.F. 2001) (discussing 

the “virtually unfettered authority” of a commander exercising 

special court-martial jurisdiction). 
United States v. Ashby, No. 08-0770/MC 

55

We hold that the convening authority’s decision to refer 

the Article 133, UCMJ, charge to a general court-martial, rather 

than a lesser forum, was not an abuse of his discretion. As we 

noted earlier, the matter of the destruction of the videotape 

was discovered after the original charges had been referred, and 

a separate charge alleging violations of Article 133, UCMJ, was 

preferred. Lt. Gen. Pace directed that the Article 133, UCMJ, 

charge be tried in conjunction with the original charge. 

However, at his initial trial, Ashby refused to consent to the 

joinder of the Article 133, UCMJ, charge, and Lt. Gen. Pace 

withdrew it. Ashby was therefore aware that the Article 133, 

UCMJ, specifications could later be separately referred -- and 

they were. 

Since the two Article 133, UCMJ, specifications were 

initially referred before Ashby was acquitted on the original 

charges, it is difficult to say that the re-referral of the 

Article 133, UCMJ, charge was in any way retaliatory. Ashby’s 

allegation of bad faith is unfounded. We conclude that Lt. Gen. 

Pace acted within his discretion in referring the Article 133, 

UCMJ, charges to a general court-martial, where Ashby was a 

commissioned officer and the charges involved obstruction of 

justice in an exhaustive investigation into the deaths of twenty 

people and extensive damage to military property. 
United States v. Ashby, No. 08-0770/MC 

56

DECISION 

We affirm the decision of the United States Navy-Marine 

Corps Court of Criminal Appeals. 

 
United States v. Ashby, No. 08-0770/MC 

 STUCKY, Judge (concurring): 

 I concur in the Court’s judgment, and in virtually all of 

Judge Erdmann’s exhaustive opinion. I write separately only to 

note my understanding of the discussion of Issue I, and to state 

a reservation with respect to Issue VII. 

 With respect to Issue I, as the lead opinion notes, the 

Government elected to incorporate the existing offenses of 

obstruction of justice (Article 134, Uniform Code of Military 

Justice (UCMJ), 10 U.S.C. § 934 (1994)) and conspiracy to 

obstruct justice (Article 81, UCMJ, 10 U.S.C. § 881 (1994)) into 

the Article 133, UCMJ, 10 U.S.C. § 933 (1994), charge of conduct 

unbecoming an officer and a gentleman. The military judge 

instructed the members on the elements of those underlying 

offenses, and the Court of Criminal Appeals analyzed the issue 

of legal sufficiency in those terms. I do not understand the 

lead opinion as holding that the military judge was required to 

do as he did, but simply as applying the law of this case as we 

found it. I wholly concur with the legal sufficiency analysis 

of the lead opinion as it relates to the elements of the 

underlying offenses. 

 With respect to Issue VII, consistent with the position I 

took in United States v. Bush, I question the application of the 

“public perception” standard of United States v. Toohey, 63 M.J. 

353 (C.A.A.F. 2006) (Toohey II). See Bush, 68 M.J. 96, __ (1-8) 
United States v. Ashby, No. 08-0770/MC 

2

(C.A.A.F. 2009) (Ryan, J., with whom Stucky, J., joined,

concurring in the judgment). However, I completely agree with 

the lead opinion’s holding that Appellant has not made the 

requisite showing of prejudice under Barker v. Wingo, 407 U.S. 

514, 530 (1972). I therefore concur.