U.S. v.

Bradley
IN THE CASE OF
UNITED STATES, Appellee
v.
David S. BRADLEY, Staff Sergeant
U.S. Air Force, Appellant

No. 98-1113
Crim. App. No. 32387

United States Court of Appeals for the Armed Forces

Argued June 1, 1999
Decided September 17, 1999

SULLIVAN, J., delivered the opinion of the Court, in which COX, C.J., and
CRAWFORD, GIERKE, and EFFRON, JJ., joined.
Counsel
For Appellant: William M. Ferris (argued); Colonel Douglas H. Kohrt and
Captain Stephen P. Kelly (on brief).
For Appellee: Major Kenneth A. Arnold (argued); Colonel Anthony P. Dattilo,
Major Ronald A. Rodgers, and Captain Martin J. Hindel (on brief).
Military Judge: Howard R. Altschwager

THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION

BEFORE PUBLICATION.


Judge SULLIVAN delivered the opinion of the Court.
During October and November of 1995, appellant was tried by a general courtmartial composed of officer and enlisted members at Fort George G. Meade,
Maryland. Contrary to his pleas, he was found guilty of one specification of rape,
and two specifications of indecent assault, under Articles 120 and 134, Uniform
Code of Military Justice, 10 USC 920 and 934, respectively. The members
sentenced him to a dishonorable discharge, 3 years confinement, total forfeitures,
and reduction to E-1. The convening authority approved the sentence as adjudged on
August 26, 1996. On appeal, the Court of Criminal Appeals ordered a DuBay1
hearing on the issue of unlawful command influence. 47 MJ 715 (1997). After that
hearing was conducted in March 1998, the lower court affirmed the findings and
sentence on June 30, 1998. 48 MJ 777.
On February 22, 1999, this Court granted review on the following issues:
I
WHETHER THE MILITARY JUDGE ABUSED HIS
DISCRETION AND/OR WAS CLEARLY ERRONEOUS
IN DENYING APPELLANTS PRE-TRIAL MOTION
TO SUPPRESS AN ALLEGED ADMISSION
OBTAINED IN VIOLATION OF ARTICLE 31 OF THE
UNIFORM CODE OF MILITARY JUSTICE (UCMJ) [2 ].
II
WHETHER APPELLANTS CONVICTION AND/OR
SENTENCE IN THIS CASE WAS THE RESULT OF
THE IMPROPER EXERCISE OF COMMAND
INFLUENCE AND/OR IMPROPER ACTIONS BY THE
SPECIAL COURT-MARTIAL CONVENING
AUTHORITYS STAFF JUDGE ADVOCATE.
We resolve these issues in the Governments favor.
I
On Issue I, the record before us shows that appellant was a "cryptologic linguist
specialist" with a high-level top secret security clearance. On August 5, 1994, he was
accused of raping and indecently assaulting a female member of his unit. The
Government produced evidence that appellants acting commander, Major Scafidi,

received a phone call informing him of the alleged rape. He then attempted to
contact appellant by telephone. Once contact was made, Major Scafidi informed
appellant that he needed to speak with him after appellant spoke with police.
The next day, appellant called Major Scafidi as instructed. Major Scafidi testified to
the telephone conversation as follows:
Q. [TC]: Okay. When he called you back, as best you can
remember, after you answered the phone, what did the
accused say to you or what did you say to him?
A. I asked him what happened at the police station.
Q. Word for word as best you can recall, what exactly did
you say?
A. I said-Q. First of all, did you ask him where he was?
A. I asked, "Where are you at?"
Q. And what did he say?
A. He said, "Im at home," and I said, "What happened?"
Q. And when you asked what happened, what were you
asking?
A. I needed to know what happened at the police station.
Q. Is it fair to say that just because he's home something
might have happened at the police station?
A. Yes.
Q. He might have been booked and released, for example?
A. Thats correct.
Q. And you needed to know that?
A. Thats correct.
Q. When you said, "What happened?", what did the

accused say?
A. He said, "I admitted to touching her without her
consent."
Q. And your understanding is that he was relating to you
what he had just said at the police station that afternoon.
A. Yes.
(Emphasis added.)
Major Scafidi testified that the purpose of his call was to inquire whether appellant
had been arrested, charged, or accused of criminal conduct in order to determine
whether appellants security clearance required termination. He did not ask any
other questions.
Appellant testified somewhat differently. He testified that he spoke with Major
Scafidi twice after his arrest by civilian authorities. The record states:
Q[DC]. What was you conversation with Major Scafidi?
A. He asked me, "Whats going on?" He said that -- he
asked me if I had spoke with the authorities yet, and I said
no, that I was going to soon. He then told me he couldnt
tell me any more; he couldnt talk to me about what was
going on; that as soon as I was done speaking with the
authorities to call him back. Detective Wright came to my
house.
Q. Before you go on, did he ask you any questions he
Major Scafidi did he ask you questions regarding when
was your next scheduled duty time?
A. At that time, no, he did not.
Q. Did he ask you what your status was or had you been
charged with an offense?
A. At that time I told him that I had not talked to the
authorities yet and that I had not been contacted or charged
or seen by anybody of the authorities.
Q. Did he express to you at that time any conversations
regarding, "If you are charged or if anything happens,

please call me because it pertains to your security

clearance"? Did he make any statements regarding that?
A. Not relating to the security clearance. His concern was
simply had I spoke with the authorities, had I been charged.
No reference to the security clearance at that time.
Q. That was your first conversation with the major?
A. Yes, sir, it was.
Q. Did you later call him back?
A. Yes, sir. After Detective Wright left my home, I returned
Major Scafidis call. He asked me what was going on, and
I said that I hadnt been charged and related to him what
Detective Wright said to me which was, "Assuming you
touched her without permission, this is aggravated assault,
but Im not charging you with that now," and I related that
information quoting Detective Wright to Major Scafidi.
Q. Did you tell Major Scafidi this is what the detective told
you or did you say, "Sir, this is what happened; this is what
I did; or this is what I heard"?
A. I said, "This is what Detective Wright indicated to me
what is going on with my status -- with my current status."
Q. Did the major then ask you if you had gone down to the
police station for any questioning or to be arrested and
formally charged?
A. No, he did not.
Q. Did he ask when your next duty day was?
A. Yes, he did. He asked me, "When do you have to work
again?" I replied, "Early Monday morning; I have a mission
scheduled for probably 2:00 or 3 oclock show time early
Monday morning." He said, "Okay. Do not go to the
mission; report to the commander at 7:30."
Q. Did he give you any instructions as far as finding a
replacement or someone to fly in your place?

A. He said he would take care of that. He said that he

would find out who the NCOIC in charge of the mission
that morning was and take care of having a replacement for
me, that my concern was to be in blues Monday morning at
7:30 to see Colonel Mitzel.
Q. Was there anything else in that conversation with the
major?
A. No, sir, just he asked me, "Have you been charged?
Have you been detained?" "No." And "Dont go to the
mission on Monday morning."
Q. At any point during any of your conversations, either
your first phone call to the major or the later one, did he
ever read you your Article 31 rights?
A. No, sir, he did not.
Q. Did he ever tell you, if not formally your Article 31
rights, did he ever say anything about, "Theres some
serious charges or theres been an allegation"?
A. No, he did not.
Q. Did he ever say, "Dont make any statements to me
about what happened. Im just trying to determine what
your duty status is as relating to your clearance"?
A. No, sir, he did not. He did the opposite. He told me he
could not speak to me but never advised me to not tell him
the information.
***
Q[TC]: --when you called him back, he asked you what
happened? He was asking you what had just happened that
afternoon wasnt he?
A. He asked me my status. The "what happened" he was
asking me the status of the nature of [sic] with the
authorities being there I understood him asking me, "Have
you been charged? Are you going to be detained? Whats
your situation? I understood that to be the question.

(Emphasis added.)
At trial, appellant moved to suppress evidence of the unwarned statement made to
Major Scafidi because he was conducting a disciplinary inquiry and failed to read
him his Article 31 rights. The military judge denied the motion and made factual
findings stating that there was "no question that both the questioner and the person
questioned understood the purpose and intent of the question, What happened?
An incriminating response was not requested, and in the mind of the accused, an
incriminating response was neither sought nor given."
The Court of Criminal Appeals affirmed appellants conviction because it held that
the "military judge did not abuse his discretion" by admitting appellants pretrial
statement to his acting commander. The lower appellate court found, as the military
judge found, that Major Scafidi "was not conducting a criminal investigation." 47 MJ
at 717.
___ ___ ___
Appellant asserts that the military judge erred in denying his motion to suppress
evidence of his purported pretrial admissions to his acting commander, Major
Scafidi. He first contends that the judge erred in finding his commander was not
acting in a disciplinary capacity when that commander telephoned him and asked,
"what happened." He next argues that the service appellate court erred when it held
that no Article 31 violation occurred simply because he took the witness stand and
disputed the accuracy of the responses which Major Scafidi testified he made to
these questions. We disagree with both arguments.
Turning first to appellants "troubling paradox" argument, Final Brief at 29, we
conclude that he has misread the opinion of the service court below. Neither the
military judge nor the Court of Criminal Appeals held that appellants testimony
disputing Major Scafidis testimony on appellants responses to the challenged
questioning waived or forfeited his suppression motion. They did conclude that
appellants testimony that he provided non-incriminating answers to those
questions and he perceived these questions as non-incriminating was some evidence
that this was not interrogation barred by Article 31. This was not legal error. United
States v. White, 48 MJ 251, 257-58 (1998) (considering appellants perception of
events to determine whether interrogation occurred); see United States v. Meeks, 41
MJ 150, 162 (CMA 1994).
Turning to appellants first argument, this Courts precedents hold that warnings
under Article 31 are required when a suspect or an accused is questioned by a
military superior during an official law enforcement investigation or disciplinary
inquiry. See United States v. McLaren, 38 MJ 112 (CMA 1993), cert. denied, 510
U.S. 1112 (1994); United States v. Loukas, 29 MJ 385 (CMA 1990); see also United

States v. Moore, 32 MJ 56, 60 (CMA 1991). Indeed, this Court will presume "that a
superior in the immediate chain of command" is acting in an investigatory or
disciplinary role unless circumstances show otherwise. Loukas, supra at 389 n.*;
United States v. Good, 32 MJ 105, 108 (CMA 1991); United States v. Pittman, 36
MJ 404, 407 n.7 (CMA 1993). Here, the military judge found that appellants
commander was not acting in a law enforcement or disciplinary role when he
questioned appellant.
This Court previously considered the type of circumstances surrounding a
commanders official questioning of an accused which did not necessitate Article
31 rights warnings. In Loukas, the accused indicated that he "was experiencing a
hallucination" aboard an aircraft in mid flight. In response to his irrational behavior
and without administering Article 31 warnings, the crew chief asked the accused, his
subordinate, "if he had taken any drugs." We held that admission of the accuseds
response (he had taken some cocaine the night before) did not violate Article 31
because the challenged questions were pertinent to the crew chiefs "operational
responsibilities" for the safety of the plane and its crew. We further noted "there was
no evidence" that the superiors questions "were designed to evade the accuseds
constitutional or codal rights." 29 MJ at 386, 389; Good, supra at 109.
Appellant does not generally contend that a security clearance question is not within
the ambit of the administrative and operational exception to Article 31, as recognized
by our case law. His particular complaint is that his commander used his security
responsibilities as a pretext to ask appellant questions which would be both
incriminating and admissible in court. Both the military judge and the Court of
Criminal Appeals factually rejected appellants view of the evidence on this point.
We conclude that their findings of fact were not clearly erroneous and were amply
supported by the evidence of record in this case. See generally United States v.
Campos, 42 MJ 253, 261 (1995).
In this regard, we note, Major Scafidi testified that the purpose of his questions was
to determine whether charges were filed because that action would necessitate
suspension of appellants high level security clearance. He also testified that he did
not seek or ask for incriminating information about the alleged rape. See also United
States v. Hessler, 7 MJ 9 (CMA 1979). Furthermore, there was no other evidence in
this case which shows that Major Scafidi was pursuing a criminal investigation or
held any other law enforcement role in appellants case. On the contrary, evidence
was admitted that immediately after asking appellant "what happened?", he pulled
appellants TS/SCI clearance and told him not to report to duty, thus corroborating
his testimony. See Loukas, supra at 389. Appellant also presented no evidence that
Major Scafidi asked the question as a ruse for an investigation or attempted to evade
appellants Article 31 rights. Id. at 388. Finally, as noted by the court below, "it is
clear from the record that both Major Scafidi and appellant understood that, although

Major Scafidi was acting in an official capacity, he was seeking information needed
for the proper review of appellants security clearance status and was not
conducting a criminal investigation." 47 MJ at 717. Accordingly, we conclude that
the military judge did not err in admitting appellants pretrial statements to Major
Scafidi. See United States v. Campos, supra.
II
In the second granted issue, appellant alleges that Lieutenant Colonel (Lt Col) Dent,
the special court-martial convening authoritys staff judge advocate (SJA)
improperly influenced his general court-martial in four specific ways. First, he
contends that the SJA improperly pressured a defense witness, Master Sergeant
(MSgt) Lisa Becker, not to testify. Second, he asserts that this SJA engaged in
improper ex parte communications with the president of the panel. Third, he alleges
that this same officer published an article in the base newspaper which prejudiced
appellants chances for clemency from the general court-martial convening
authority. Finally, he avers that the SJA (Lt Col Dent) after trial dissuaded a court
member from providing a letter for appellants clemency package.
(1) Pressure on defense witness
Appellants first contention, as noted above, is that MSgt Becker was unlawfully
influenced by Lt Col Dent, the staff judge advocate to the special court-martial
convening authority at Fort Meade, Maryland. He asserts that the SJA spoke with
MSgt Becker on the telephone and dissuaded her from testifying for the defense in
this case. He contends that the SJAs comments were "blatantly improper" and
caused this witness testimony to be "less enthusiastic and less forthcoming" for
the defense. Final Brief at 34-35.
Our initial concern is whether the SJAs telephone conversation amounted to
unlawful command influence. See Art. 37(a), UCMJ, 10 USC 837(a). Certainly,
an SJA may not engage in conduct which dissuades defense witnesses from
testifying truthfully at courts-martial. See United States v. Gleason, 43 MJ 69, 73
(1995). Here, however, the Court of Criminal Appeals found the same facts as those
found by the judge at the DuBay hearing and concluded that they "neither indicated
bias towards appellant nor amounted to unlawful command influence." 48 MJ at
779. We need not decide this question because we agree with the appellate court
below that no prejudice in this case occurred as a result of the SJAs conduct.
That court stated:
Although MSgt Beckers testimony conflicted in part with
Lt Col Dents, she admitted that although she did think
about not testifying after their conversation, she nonetheless

decided to testify for the appellant both on the merits and

during sentencing. We note from the record that, in addition
to testifying about the victims demeanor at the hospital,
she also provided strong character and truthfulness
testimony on behalf of appellant. However, at the post-trial
hearing she had apparently forgotten giving this latter
testimony and claimed to have withheld it because of her
conversation with Lt Col Dent.
48 MJ 777, 779-80 (1998). Appellant has proffered no legal authority that a loss of
enthusiasm constitutes legal prejudice requiring reversal and he has not indicated
what, if any, testimony was withheld by this witness. In these circumstances
appellate relief is not warranted. See generally United States v. Rivers, 49 MJ 434,
443 (1998) (this Court "satisfied that appellant was not deprived of any witnesses").
(2) Ex parte communication
Appellant next contends that Lt Col Dent engaged in improper ex parte
communications with the president of appellants court-martial panel. He asserts
that the service appellate court erroneously found only one such conversation
occurred, when in fact another occurred as well, and two such conversations are
enough for reversal. We disagree.
It is not the number of ex parte conversations which is critical, but their content. See
United States v. Hamilton, 41 MJ 22, 27 (CMA 1994), cert. denied, 513 U.S. 1084
(1995). Here, despite evidence that a second conversation may have occurred, the
military judge found that only one occurred and that it did not concern appellants
trial. See generally United States v. Campos, supra. Furthermore, the defense did not
protest the presidents further participation in this court-martial once this matter
came to light at trial. See 48 MJ at 780-81. We are satisfied that there was no
unlawful command influence as a matter of fact or law in these circumstances.
United States v. Hamilton, supra.
(3) Newspaper article
Appellants third complaint of unlawful command influence concerns an article
appearing in a base newspaper written by the special court-martial convening
authoritys SJA after appellants general court-martial. He contends that Lt Col
Dents article constituted unlawful command influence on the general courtmartial authority and his SJA who were then reviewing this case in Texas. He relies
on the decision of this Court in United States v. Wansley, 46 MJ 335 (1997), for the
proposition that such conduct constitutes unlawful command influence.
The appellate court below noted the findings of the military judge on this matter, as

follows:
We also agree with the military judge that the article
concerning appellants conviction in "The Eagle," a 694th
Intelligence Group publication, was in no way improper
command influence. It merely informed the local
community of the results of appellants trial. The
reference to the Navys Tailhook incident in that article
was apparently to emphasize that all military members
should be on notice about the possible consequences of
sexual misconduct, not to directly liken appellants
crimes to Tailhook. In any case, it was written by Lt Col
Dent, the special court-martial convening authoritys
SJA, who was stationed in Maryland. We found no
evidence to indicate it could have possibly affected the
general court-martial (GCM) convening authority or his
SJA, both in Texas, even if the article had been improper.
This is notwithstanding the fact that Lt Col Dent sent a
copy of this article to the GCM SJA for informational
purposes as a routine part of tracking the preventive law
program.
48 MJ at 780.
We agree with the military judge that unlawful command influence did not occur on
the basis of this newspaper article and its routine delivery to the general courtmartial convening authority. This article was unsigned and basically reported the
results of trial to the military community at Fort Meade. The quotes ascribed to a
junior legal officer at a subordinate command were consistent with his law
enforcement duties and were not directed to the clemency process. We see no
violation of Article 37 in this context and we do not read United States v. Wansley,
supra (a post-trial review-disqualification case) as holding otherwise.
(4) Stifling clemency recommendation
Appellants final complaint of unlawful command influence concerns a matter
raised for the first time at the DuBay hearing which the Court of Criminal Appeals
noted was "not addressed in our order for a post-trial hearing." 48 MJ at 780. A
member of appellants court-martial, Captain (Capt) Applegate, testified that he
approached Lt Col Dent for legal advice on what a member of a court-martial was
legally permitted to say after trial on behalf of a convicted accused in a letter of
clemency. See RCM 1105(b)(4), Manual for Courts-Martial, United States (1995
edition)3 (clemency recommendation by court-martial member). He further stated

that Lt Col Dent refused to answer his question and attempted to dissuade him from
submitting such a statement by saying, "You dont really want to do that, do you?"
The Government opposed this claim at the DuBay hearing on the basis of the
testimony of Lt Col Dent who remembered advising Capt Applegate on this matter.
He denied making the above noted statement or advising Capt Applegate in any way
that he should not submit a clemency letter. The Government also submitted the
testimony of Colonel Behrens, who overheard much of their conversation
concerning such a statement and confirmed Lt Col Dents version of this incident.
48 MJ at 780. The military judge at the DuBay hearing, however, made no particular
findings of fact or conclusions of law on this matter. Instead he generally concluded
that appellants unlawful-command-influence complaints were without merit and
that he chose to believe Lt Col Dents version of events rather than Capt
Applegates in another matter.
We are not a court with factfinding powers and the judges incomplete findings of
fact preclude us from resolving this case on the basis of his lawful exercise of these
powers. Cf. United States v. Campos, supra. Nevertheless, a factfinding hearing is
not required where an accused fails to aver sufficient facts necessary to constitute a
legal claim. See United States v. Ginns, 47 MJ 236, 246-47 (1997). Here, appellant
avers that he was denied a members clemency letter whose content is unknown
except that it may contain inadmissible post-trial statements of a member concerning
his prior deliberations in this case. See Mil. R. Evid. 606(b), Manual, supra.4 In our
view, there was no reasonable possibility that the general court-martial convening
authority would have changed his action in this case on this basis. See United States
v. Thomas, 22 MJ 388, 394 (CMA 1986)
(harmless-beyond-a-reasonable-doubt test), cert. denied, 479 U.S. 1085 (1987).
The decision of the United States Air Force Court of Criminal Appeals upon further
review is affirmed.
FOOTNOTES:
1 United States v. DuBay, 17 USCMA 147, 37 CMR 411 (1967).
2 10 USC 831.
3 This provision appears as RCM 1105(b)(2)(D) in the 1998 Manual and is textually
unchanged.
4 This provision is unchanged in the 1998 edition of the Manual.
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