United States v. Sergeant ROBERT B. BERGDAHL


UNITED STATES ARMY COURT OF CRIMINAL APPEALS Before KRIMBILL, 1 RODRIGUEZ, and WALKER Appellate Military Judges Sergeant ROBERT B. BERGDAHL, United States Army, Petitioner v. UNITED STATES, Respondent ARMY MISC 20200588 For Petitioner: Colonel Michael C. Friess, JA; Lieutenant Colonel Angela D. Swilley, JA; Major Matthew D. Bernstein, JA; Franklin D. Rosenblatt, Esquire; Jonathan F. Potter, Esquire; Stephen A. Saltzburg, Esquire; Stephen I. Vladeck, Esquire; Philip D. Cave, Esquire; Sean T. Bligh, Esquire; Christopher L. Melendez, Esquire; Sabin Willet, Esquire; Eugene R. Fidell, Esquire (on brief and reply brief). For Respondent: Lieutenant Colonel Wayne H. Williams, JA; Major Jonathan S. Reiner, JA; Captain Allison L. Rowley, JA (on brief). 11 December 2020 ------------------------------------------------------------------ MEMORANDUM OPINION AND ACTION ON PETITION FOR EXTRAORDINARY RELIEF IN THE NATURE OF A WRIT OF CORAM NOBIS ------------------------------------------------------------------ This opinion is issued as an unpublished opinion and, as such, does not serve as precedent. RODRIGUEZ, Judge: Petitioner requests this court issue a writ of error of coram nobis dismissing the charges and specifications with prejudice. Specifically, petitioner asserts the military judge who presided over his court-martial and made rulings adverse to petitioner concerning unlawful command influence (UCI), failed to disclose his application for employment as an immigration judge with the United States Department of Justice (DOJ) to the parties while petitioner’s case was ongoing and, as a result, petitioner did not receive a fair trial. We hold petitioner is not entitled to coram nobis relief because we find no valid reason for petitioner’s failure to raise this issue and seek relief earlier. Accordingly, we find petitioner’s writ does not meet the threshold criteria for coram nobis review and, therefore, deny the petition. 1 Chief Judge (IMA) Krimbill participated in this case while on active duty. BERGDAHL—ARMY MISC 20200588 BACKGROUND On 16 October 2017, a military judge sitting as a general court-martial convicted petitioner, pursuant to his pleas, of desertion with intent to shirk hazardous duty and misbehavior before the enemy in violation of Articles 85 and 99, Uniform Code of Military Justice, 10 U.S.C. §§ 885, 899 [UCMJ]. On that same day, the military judge applied for a position as an immigration judge with the DOJ’s Executive Office for Immigration Review (EOIR). 2 As part of his application, the military judge submitted an earlier ruling he made in petitioner’s case as a writing sample. 3 The military judge never disclosed on the record that he had applied to become an immigration judge at the DOJ upon his retirement from the Army. The military judge sentenced petitioner on 3 November 2017 to a dishonorable discharge, reduction to the grade of E-1, and forfeiture of $1,000 per month for ten months. The convening authority approved the sentence as adjudged. Petitioner’s case was then docketed with this court for review pursuant to Article 66, UCMJ, on 8 June 2018. On 28 September 2018, the EOIR released a public notice announcing the military judge was sworn in as an immigration judge. The military judge’s retirement from the Army became effective ...

Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals