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Litigating UCI Claims
Basic framework. United States v. Biagase, 50 M.J. 143, 150-51 (C.A.A.F. 1999)
The threshold is low – some evidence.
However, there must be more than a mere allegation or general speculation; something more than just “command influence in the air.” United States v. Johnston, 39 M.J. 242 (C.M.A. 1994).
The burden then shifts to the government to prove, beyond a reasonable doubt, that:
The predicate facts do not exist; or
If true, the facts do not amount to UCI; or
If at trial, if the facts do amount to UCI (by producing evidence that the UCI will not affect the proceedings).
If on appeal, if the facts did amount to UCI, that the UCI had no prejudicial impact on the court-martial.
Prior to Biagase, the case law is very inconsistent. Look to pre-Biagase cases for help on what types of facts constitute UCI, but look to post-Biagase cases for how to analyze the problem.
If government fails to produce rebuttal evidence, the “military judge must find unlawful command influence exists and then take whatever measures are necessary . . . to ensure [beyond a reasonable doubt] that the findings and sentence” are not affected. United States v. Jones, 30 M.J. 849, 854 (N.M.C.M.R. 1990).
Any time before authentication or action the MJ or CA may direct a post-trial session to resolve any matter which affects the legal sufficiency of any findings of guilty or the sentence. See United States v. Rivers, 49 M.J. 434 (C.A.A.F. 1998).
The military judge needs to build the record. 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.”