## Facts

- Boatswain’s Mate Second Class John C. Riesbeck, U.S. Coast Guard, was tried by general court-martial for sexual offenses and related charges.
- He was tried before a seven-member panel of officers and enlisted members.
- The final panel consisted of five women and two men; four of the five women were trained sexual-assault “victim advocates.”
- The defense moved to strike the female members, alleging impermissible selection based on gender and victim-advocate status; the military judge denied the motion.
- Riesbeck was convicted and sentenced; the Coast Guard Court of Criminal Appeals (C.G.C.C.A.) affirmed.
- On initial review, the Court of Appeals for the Armed Forces (C.A.A.F.) ordered a DuBay fact-finding hearing on member selection.
- The DuBay judge found that senior leaders faced intense external pressure regarding sexual-assault cases and that selection officials likely (consciously or unconsciously) believed it was important to have a large number of women on the panel.
- On remand, the C.G.C.C.C.A. again affirmed; C.A.A.F. granted review on Article 25 and Article 37, UCMJ, and reversed.

## Issues

1. Whether the convening authority’s member selection violated Article 25, UCMJ, by using gender and victim-advocate status as selection criteria rather than the statutory qualifications.
2. Whether the selection process constituted unlawful command influence (court-stacking) in violation of Article 37, UCMJ.
3. What remedy was required if improper selection and unlawful command influence were established.

## Decision

- C.A.A.F. unanimously reversed the C.G.C.C.A.
- The court held that gender and victim-advocate status were used as important selection criteria, violating Article 25, UCMJ.
- The court held the Government failed to prove beyond a reasonable doubt that the improper selection was for a benign purpose; unlawful command influence in the form of court-stacking was established under Article 37, UCMJ.
- C.A.A.F. set aside the findings and sentence and dismissed the charges with prejudice.

## Legal Principles

- Article 25(d)(2), UCMJ, requires member selection based on age, education, training, experience, length of service, and judicial temperament; convening authorities may not select members to maximize a particular gender or other non-statutory trait.
- A statistically unusual panel composition, combined with evidence that selectors prioritized non-Article 25 traits, supports a finding of improper member selection.
- When improper member selection is raised, the Government bears the burden to present affirmative evidence of benign intent beyond a reasonable doubt; absent that showing, the inference is that selection aimed to affect findings or sentence.
- Court-stacking to influence case outcomes is unlawful command influence prohibited by Article 37, UCMJ, and may justify dismissal with prejudice to protect fairness and public confidence in military justice.

## Conclusion

C.A.A.F. held that convening-authority selection of a court-martial panel based on gender and victim-advocate status violated Article 25 and, absent proof of benign intent beyond a reasonable doubt, constituted unlawful command influence under Article 37; the court therefore set aside the findings and sentence and dismissed the charges with prejudice.


United States v. Riesbeck, 77 M.J. 154 (C.A.A.F. 2018)