United States v. Suarez

On 25 March 1983, as planned, approximately 1200 troops attended a post-wide formation at Pinder Barracks.
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Colonel Beavers, who was not only the DIVARTY commander but also the Pinder Barracks installation commander and a special court-martial convening authority, addressed the formation. He spoke generally regarding leadership, discipline, command climate, and the need for readiness. He stated that drug abuse and drug trafficking had an adverse impact on the readiness of the command and consequently would not be tolerated in DIVARTY. He announced that some of the soldiers present at the formation met the standards of neither the Army nor Pinder Barracks and should be removed from their units. Some individuals claim that Colonel Beavers specifically called these soldiers "criminals", while others claim that he either used that term in a general sense or stated that criminals would not be tolerated in DIVARTY. Some individuals claim that Colonel Beavers called them "bastards" during the mass apprehension, although the statements are in conflict on this point. For the purposes of this decision, we will assume that Colonel Beavers used both terms.

While Colonel Beavers was speaking, military police, CID agents, and German police entered through the gate and surrounded the parade field. As Colonel Beavers read the names of forty individuals, starting with the most junior, those individuals were told to report to him at the front of the formation. Enlisted members were escorted to the front by their battery commanders and first sergeants. Noncommissioned officers were escorted by their battalion commanders and command sergeants major. The one officer involved was escorted by his battalion commander. The unit crests were removed from the uniforms of a number of these individuals, including appellant, before they reported. When the soldiers reported to Colonel Beavers and saluted, their salutes were not returned. (It is an Army custom not to salute prisoners. See, e.g., Army Regulation 190-47, Military Police: The United States Army Correctional System, para. 4-8 (1 Oct. 1978).)
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The soldiers were formed to the side of the platform on which Colonel Beavers stood. They were then turned over to the CID agents and military police. Within the view of the remaining troops in the formation, the soldiers were required to spread their hands and feet and lean against a building while they were searched. They were then handcuffed, marched to a waiting bus, and transferred to the district headquarters of the CID for processing and questioning.

United States v. Cruz, 20 M.J. 873, 875-76 (A.C.M.R. 1985). On appeal, the then styled C.M.A. affirmed the findings but a new sentencing hearing was ordered. 25 M.J. 326 (C.M.A. 1987). The C.M.A. noted that 

The first issue in this case was decided by United States v. Thomas, 22 M.J. 388, 393-94 (C.M.A.1986), cert. denied, 479 U.S. 108 (1987). In the language of that decision, we are "persuaded beyond a reasonable doubt that the findings" of guilty were not "affected by the command" action taken in this case. Id. at 394.

Cruz, 25 M.J. at 329. (Some of us refer to Thomas as the "Third Amored" cases.

During one or more briefings conducted among officers and noncommissioned officers within his command, General Anderson addressed the subject of testifying at an accused's court-martial. He stated that he found it paradoxical for a unit commander, who had recommended that an accused by tried by a court-martial authorized to adjudge a punitive discharge, to later appear as a defense character witness at  the sentencing stage of the trial,  testify as to the accused's good character, and recommend that the convicted soldier be retained in the service. Some of General Anderson's remarks were elaborated upon and possibly distorted by his subordinates. Be that as it may, his comments were later interpreted, or misinterpreted, to reflect an intent that a commander, first sergeant, or other person from an accused's unit, should not give favorable presentencing testimony on behalf of an accused. This interpretation may have also extended to findings.

United States v. Thomas, 22 M.J. 388, 391-92 (C.M.A. 1986). Thomas had entered mixed pleas.

In all four of these cases, we have upheld the decision of the Court of Military  Review. Lest our action be construed as a tacit acceptance of illegal command influence in military justice, we emphasize that the decisions of the court below were preceded by extensive remedial action at that level. Indeed, we commend that court for recognizing the inherent dangers caused by illegal command influence and for deciding each case in a manner consistent with legislative intent and prior case law.
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One of the most sacred duties of a commander is to administer fairly the military justice system for those under his command. In these cases, the commander, for whatever reason, failed to perform that duty adequately. Likewise, it is also apparent either that his legal advisor failed to perceive that a problem was developing from General Anderson's stated policies or that he was unable or unwilling to assure that the commander stayed within the bounds prescribed by the Uniform Code of Military Justice. Several hundred soldiers have been affected directly or indirectly -- if only because of the extra time required for completing appellate review of their cases. In addition, the military personnel resources -- as well as those of this Court -- required to identify and to surgically remove any possible impact of General Anderson's overreaching have been immense. Finally, and of vital importance, the adverse public perception of military justice which results from cases like these undercuts the continuing efforts of many -- both in and out of the Armed Services -- to demonstrate that military justice is fair and compares favorably in that respect to its civilian counterparts.

A primary responsibility of this Court in its role as civilian overseer for the military justice system is to ensure that commanders perform their military-justice responsibilities properly and that they are provided adequate guidance by their legal advisors in performing those responsibilities. Merely remedying the error in the cases before us is not enough. Instead, we wish to make it clear that incidents of illegal command influence simply must not recur in other commands in the future.

Recognizing that military commanders and judge advocates usually exert themselves in every way to comply with both the spirit and the letter of the law, we are confident that events like those involved here will not be repeated. However, if we have erred in this expectation, this Court -- and undoubtedly other tribunals -- will find it necessary to consider much more drastic remedies.

Thomas, 22 M.J. at 400. This case has been discussed in approximately 288 cases, although not all relate to the specific issues here. A number are like Cruz and were subjected to a Punishment Parade, most others relate to similar remarks Cruz heard, by commanders in meetings. Moving on.

Appellant was apprehended on January 11, 2022, after he tested positive for cocaine use in a random command urinalysis. Battalion Commanding Officer (CO) Lieutenant Colonel (LtCol) W and Sergeant Major (SgtMaj) C had coordinated with Naval Criminal Investigative Service (NCIS) Special Agent (SA) W to execute the apprehension during a scheduled command climate survey debrief. Appellant arrived late for the event and was led into a classroom where LtCol W was briefing the company. Upon being notified of Appellant’s arrival, SgtMaj C called out to Appellant to identify himself. LtCol W pointed out Appellant’s location to SA W, who apprehended Appellant and placed him in handcuffs. As Appellant was being escorted from the classroom, LtCol W referred to him as a “drug kingpin” and told the assembled company, “That’s the guy selling cocaine in my barracks.” SgtMaj C added, “This piece of crap drug kingpin has been selling drugs in your barracks and no one has the nut sack to say anything about it.”

United States v. Suarez, __ M.J. ___ No. 25/0004/MC (C.A.A.F. Aug. 5, 2025).

Appellant pled IAW a PTA, to drug offenses and attempted prostitution, which included the standard waive all waivable motions clause. Bottom line, CAAF decides that UCI is waivable in a GP. But, there is a remand on the IAC issue.

Appellant argued to NMCCA that the Government failed to prove beyond a reasonable doubt that UCI did not affect the court-martial. Also that defense counsel rendered ineffective assistance of counsel in various ways, including (1) negotiating a plea agreement to avoid sex offender registration on the prostitution offense even though registration was not required, and (2) in the event the court determined the UCI claim was waived, advising Appellant to waive all waivable motions, including UCI.

The accused in this case is a Marine E-4.

​On appeal to the NMCCA, Appellant argued the Government failed to prove beyond a reasonable doubt that UCI did not affect the court-martial. He also argued trial defense counsel rendered ineffective assistance of counsel in various ways, including (1) negotiating a plea agreement to avoid sex offender registration on the prostitution offense even though registration was not required, and (2) in the event the court determined the UCI claim was waived, advising Appellant to waive all waivable motions, including UCI.

The NMCCA held that Appellant waived his UCI claim, despite Appellant’s desire to preserve the issue, and even if not waived, the Government proved beyond a reasonable doubt that the UCI did not materially prejudice Appellant’s rights. As to the ineffective assistance claim, the NMCCA concluded trial defense counsel was deficient in both respects, but Appellant failed to show he was prejudiced.

The granted issues.

I. Did unlawful command influence affect Appellant’s court-martial?

II. Was trial defense counsel’s deficient performance prejudicial?
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III. [Specified] Did Appellant waive review of the question whether unlawful influence affected his court-martial?
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We decline to answer the second assigned issue. The decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside. The case is returned to the Judge Advocate General of the Navy for remand to the Court of Criminal Appeals for further proceedings in accordance with this opinion. A hearing is authorized[.] [I]f the lower court determines that it is necessary to further develop the record.

CAAF finds the NMCCA had a number of errors in the law and its application.

On the IAC, post-trial affidavits established that,

Appellant stated that his counsel advised him that the guilty plea would not waive appellate review of the UCI issue and that he would not have pleaded guilty if it were not for this assurance.

Appellant’s trial defense counsel also submitted a post-trial affidavit confirming that he had told Appellant “that the UCI issue was preserved and would be reviewed” and that trial defense counsel did not believe the UCI motion was waivable. Counsel also said he had told Appellant he'd have to register as a sex offender if convicted of attempted prostitution.

NMCCA "The NMCCA held that Appellant waived his UCI claim, despite Appellant’s desire to preserve the issue, and even if not waived, the Government proved beyond a reasonable doubt that the UCI did not materially prejudice Appellant’s rights. As to the ineffective assistance claim, the NMCCA concluded trial defense counsel was deficient in both respects, but Appellant failed to show he was prejudiced."

Commanders and SJAs did take corrective actions against the CO and SgtMaj. Hopefully, NJS will add this case to their training for Legal Officers, COs, and XOs.

What is or isn't waived by a GP (absent a conditional plea) appears to be a recurring issue. See United States v. Tucker, just decided by NMCCA.

(1) Did the military judge err in considering Appellant’s request for pretrial confinement credit to be a “waived motion” as opposed to awarding pretrial confinement credit pursuant to United States v. Allen, United States v. Rock, and Department of Defense Manual 1325.07 (DoDM 1325.07);

​(2) Was the trial defense counsel ineffective for not insisting the request for pretrial confinement credit was non-waivable and required to be granted under United States v. Allen, United States v. Rock, and DoDM 1325.07, as opposed to Rule for Courts-Martial 305(k); and (3)[.]

Some questions.

• Does a PTA provision to waive all waivable motions include a waiver of IAC?
• Does a naked guilty plea waive IAC?
• Does it matter if the IAC is not discovered until after trial?
• Does it matter that an accused is not a lawyer who might have some competence in identifying where the DC is going wrong?
• Does it matter if the DC is unlikely to disclose they are being ineffective and tell the client that before he enters his plea?
• Does it matter what the IAC was? If true, Secord was given bad advice (although the MJ cured some of it in the Care colloquy).
• Before you answer, take a look at these cases,
  • United States v. Penton, 2025 U.S. App. LEXIS 20172 (5th Cir. Aug. 7, 2025) (unpub. Order).
  • United States v. Moss, No. 12-CV-1525, 2014 WL 4354535, at 8 (W.D. La. Sept. 2, 2014).
  • ​United States v. Loston, 2025 U.S. Dist. LEXIS 153751 (W.D. La. Aug. 7, 2025).​