                          UNITED STATES, Appellee


                                        v.


                Daniel E. MORGAN, Sergeant First Class
                         U.S. Army, Appellant


                                  No. 01-0663

                          Crim. App. No. 9601890


       United States Court of Appeals for the Armed Forces

                       Argued February 6, 2002

                       Decided August 1, 2002


     CRAWFORD, C.J., delivered the opinion of the Court, in
which GIERKE and BAKER, JJ., joined. SULLIVAN, S.J., filed an
opinion dissenting in part and concurring in the result.
EFFRON, J., filed a dissenting opinion.


                                    Counsel

For Appellant: Captain Fansu Ku (argued); Colonel Adele H.
Odegard, Lieutenant Colonel E. Allen Chandler, Jr., and Major
Mary M. McCord (on brief).


For Appellee: Major Paul T. Cygnarowicz (argued); Colonel
Steven T. Salata, Captain William J. Nelson, and Captain Tami L.
Dillahunt (on brief); Major Margaret B. Baines.


Military Judge:     Richard J. Hough

     THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Morgan, No. 01-0663/AR


      Chief Judge CRAWFORD delivered the opinion of the Court.

      Contrary to his pleas, appellant was convicted of

possession of marijuana with intent to distribute and

importation of marijuana into the customs territory of the

United States, in violation of Article 112a, Uniform Code of

Military Justice (UCMJ), 10 USC § 912a.          A panel of officer and

enlisted members, sitting as a general court-martial, sentenced

him to a dishonorable discharge, confinement for six years,

forfeiture of $437.00 pay per month for six years, and reduction

to the grade of E-1.      The convening authority approved the

sentence as adjudged and gave appellant 92 days of confinement

credit.

      Before the Army Court of Criminal Appeals, appellant

contended that the record of trial did not show that he made a

personal selection for enlisted personnel to sit on the court,

as required by Article 25(c)(1), UCMJ, 10 USC § 825(c)(1).*             The

Court of Criminal Appeals ordered a limited hearing pursuant to

United States v. DuBay, 17 USCMA 147, 37 CMR 411 (1967), to find

facts pertinent to appellant’s election of a forum at his court-

martial.    Following this hearing, the Court of Criminal Appeals




*
  Article 25(c)(1) states that enlisted members may serve on a court-martial
“only if, before the conclusion of a session called by the military judge
under section 839(a) of this title (article 39(a)) prior to trial or, in the
absence of such a session, before the court is assembled for the trial of the
accused, the accused personally has requested orally on the record or in
writing that enlisted members serve on it.”

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United States v. Morgan, No. 01-0663/AR


affirmed the findings of guilty and sentence in an unpublished

opinion.

     We granted review of the following issue:

     WHETHER THE RECORD OF TRIAL FAILS TO SHOW THAT
     APPELLANT MADE A PERSONAL ELECTION OF FORUM IN THIS
     CASE, THUS CREATING A JURISDICTIONAL ERROR REQUIRING
     REVERSAL.

We hold that the military judge erred by not obtaining on the

record appellant’s personal request for enlisted members, but

that there was substantial compliance with Article 25.       We

further hold that the error was not jurisdictional, and under

the circumstances, it did not materially prejudice the

substantial rights of appellant.       Art. 59(a), UCMJ, 10 USC §

859(a).

                               FACTS

      Appellant’s trial was held on October 3 and November 4-7,

1996, and a DuBay hearing was held on April 26-27, 1999.

     During his arraignment hearing on October 3, 1996,

appellant, a 47-year-old soldier with 14 years of education, a

GT score of 125, and more than 20 years of service, acknowledged

that he understood, inter alia, that at his request, at least

one-third of the members of his general court-martial could be

enlisted persons, and all would be senior to him.       When asked if

he was prepared to notify the court of his forum selection,

appellant’s civilian defense counsel informed the judge that

they were not so prepared.   The hearing session concluded with

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United States v. Morgan, No. 01-0663/AR


the setting of a trial date.    Civilian defense counsel clearly

informed the military judge that “there is going to be a panel.”

The military judge set a deadline of October 21, 1996, for

appellant to make his forum selection.     On October 21, the

military judge received the following fax from the military

defense counsel:


                               COURTS-MARTIAL
                                     IN
                               THE MATTER OF



         UNITED STATES                          NOTICE OF PLEA
                                       *         AND OF FORUM
                                       *
               V.

                                       *
                                       *
       SFC DANIEL MORGAN                        21 Oct 1996

     The defense hereby gives notice of the following in
     accordance with the Military Judge’s instructions:

       a. The defense will enter a plea of not guilty to
     all charges and specifications in the case of U.S. v.
     Morgan.

       b. The defense will request trial before a court-
     martial panel consisting of at least one third enlisted
     members.

     The defense will promptly notify should these choices
     change prior to trial.


                                 AMY L. ROOSE
                                 CPT, JA
                                 Defense Counsel



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United States v. Morgan, No. 01-0663/AR


     When appellant’s court-martial reconvened on November 4,

and after the disposition of several motions, the court-martial

members entered the courtroom.   Each was introduced by name and

rank.   Appellant and his counsel had copies of the convening

orders detailing enlisted members to the court.   At no time from

November 4 through November 7 -- voir dire through sentencing --

did appellant ever object to the presence of enlisted members.

     At the DuBay hearing conducted on April 26-27, 1999,

appellant remembered being advised of his counsel rights and

telling the military judge that he wanted his detailed military

counsel, Captain Roose, and civilian counsel, Mr. James L.

Willson, to represent him.   He also remembered being advised of

various rights he had as to a forum and reaffirmed that he

understood those rights included the right to trial by enlisted

members.   He knew that if he elected enlisted members, at least

one-third of the panel would be enlisted members, and they could

not come from his company or battery.   He remembered the

military judge giving the members preliminary instructions, and

seeing the grade/rank of each court member who was selected to

judge his guilt or innocence.

     Appellant affirmed that he understood it was his choice,

not his attorney’s choice, as to which forum (military judge

alone; all officer members; or officers and at least one-third

enlisted) would try him.


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United States v. Morgan, No. 01-0663/AR


     When appellant was asked by the military judge whether he

remembered talking to his trial defense counsel about the forum

selection, defense counsel representing appellant at the DuBay

hearing interposed his first of several objections to the

judge’s invasion of the attorney/client privilege.   Later in the

hearing, the military judge asked appellant whether, after

seeing the court members present, he at any time told his

counsel, “Hey, I don’t want this jury.”   Again, defense counsel

advised appellant not to answer the question on the basis of

attorney/client privilege.   After repeated questioning by the

military judge concerning what advice appellant understood and

what elections he had made, defense counsel for the DuBay

hearing summed up his position as follows:

          [T]he record clearly indicates that the panel is
          just brought in. So the accused was never asked by
          the court a month later, on the date when his trial
          began and the impaneling process was undertaken, what
          the choices were at that point in time.

     Ms. Amy L. Roose, formerly Captain Roose and appellant’s

defense counsel at trial, was called as a witness.   After

unsuccessfully raising the attorney/client privilege and asking

for a recess to contact her state bar, the military judge

ordered her to testify.   Ms. Roose then confirmed that the fax

she sent to the military judge on October 21 “reflect[ed] what

[her] client’s wishes were,” i.e., “the client was advised and

... he chose to go with the enlisted panel.”   Finally, Ms. Roose


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United States v. Morgan, No. 01-0663/AR


testified that if appellant had changed his mind about

requesting a one-third enlisted forum subsequent to her October

21 fax, she would have so advised the court.    However, that did

not happen.

     Mr. Willson, civilian counsel at the original trial, was

also called as a witness.   Mr. Willson agreed that while counsel

recommend an appropriate forum, it is ultimately the client’s

choice and decision.   He remembered questioning the members and

exercising challenges.   After a defense objection and discussion

of Mr. Willson’s ethical responsibilities under the Oklahoma Bar

Association’s Rules of Professional Responsibility, particularly

Rule 1.6, Mr. Willson agreed with the military judge’s

proposition that his (Willson’s) trial tactics would be in

accordance with the client’s wishes in those areas where the

client had the ultimate decision.    Furthermore, he agreed that

if his client wanted a forum other than that forum which

appeared at trial, Mr. Willson would challenge it.    Finally, he

acknowledged that the October 21 fax, although it did not bear

his signature, reflected appellant’s selection of a forum

consisting of enlisted members, and that he neither challenged

the array or any individual enlisted member for cause.

     The military judge at the DuBay hearing ordered by the

court below found that appellant made an informed, personal




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United States v. Morgan, No. 01-0663/AR


choice of forum in this case.   He made the following pertinent

findings of fact:

        Three, at the Article 39(a) session, the military
     judge advised Sergeant First Class Morgan of his forum
     choices. He was advised that he could be tried by a
     panel comprised of officers, or at his choice, a panel
     composed of officers and enlisted members; or at his
     request, by a judge alone. He was also advised how
     each forum would work;

        Four, Sergeant First Class Morgan understood his
     forum choices;

        Five, the court granted the defense request to
     defer forum notification, but directed that the
     defense notify the court of Sergeant First Class
     Morgan’s choice of forum not later than the close of
     business on the 21st of October 1996;

        Six, Captain Roose of the defense provided written
     notice to the court that Sergeant First Class Morgan
     would request to be tried before a court-martial
     consisting of a panel comprised of at least one-third
     enlisted members;

        Seven, prior to providing this notice to the court,
     Captain Roose discussed forum choices with Sergeant
     First Class Morgan, and Sergeant First Class Morgan
     personally chose to be tried by a court consisting of
     at least one-third enlisted members.

The court below, relying on the facts derived from the DuBay

hearing, concluded that there had been substantial compliance

with Article 25, supra.   It said:

        As in Townes, the military judge in this case
     failed to obtain on the record the appellant’s
     personal election of trial with enlisted members.
     Four officers and five noncommissioned officers were
     empaneled in the presence of the appellant to hear the
     case. After one officer was excused, the remaining
     three officers and five enlisted members heard this
     fully contested case, including the appellant’s
     testimony. At no time during the trial did the

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United States v. Morgan, No. 01-0663/AR


     appellant object to trial with enlisted members.
     Moreover, the appellant did not object to the
     composition of his court-martial in either his post-
     trial submissions or his initial appellate pleadings.
     There was no allegation that the appellant lacked the
     competence to make a knowing and intelligent election
     or that he was coerced.

Unpub. op. at 6.   We agree.

                               DISCUSSION

     Prior to 1983, Article 16(1)(B), UCMJ, 10 USC § 816(1)(B),

provided that requests for a trial judge alone be made “in

writing.”   Likewise, Article 25(c)(1), supra, provided that a

request for an enlisted panel be made personally “in writing.”

     In United States v. Dean, 20 USCMA 212, 43 CMR 52 (1970),

the Court held that a request for trial by judge alone which was

not made in writing was a jurisdictional defect.     In response,

Congress amended Article 16 to provide that a request for trial

by judge alone may be made either “in writing” or, for the first

time, orally on the record.     Military Justice Act of 1983,

Pub. L. No. 98-209, § 3(a), 97 Stat. 1393, 1394.     No change was

made to the requirement in Article 25(c)(1) that the accused’s

personally request in writing that enlisted members be appointed

to the court-martial.   Since that change was not made, this

Court held in United States v. Brandt, 20 MJ 74 (CMA 1985), that

the failure to personally request in writing a trial by a panel

composed of enlisted members created a jurisdictional defect.

However, in 1986, Congress amended Article 25 to parallel the


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United States v. Morgan, No. 01-0663/AR


change it made earlier to Article 16 -- a request that at least

one-third of the panel be composed of enlisted members may be

made “personally ... orally on the record or in writing....”

National Defense Authorization Act for Fiscal Year 1987, Pub. L.

No. 99-661, § 803(a), 100 Stat. 3816, 3906.

     As in United States v. Townes, 52 MJ 275 (2000), and United

States v. Turner, 47 MJ 348 (1997), the record establishes that

the selection of an enlisted forum was appellant’s choice.

There were many opportunities to voice an objection to having

enlisted members on the panel, and none was made.   The failure

to get appellant’s request on the record was a procedural error,

not a jurisdictional defect.   See United States v. Mayfield, 45

MJ 76, 178 (1996).

     The decision of the United States Army Court of Criminal

Appeals is affirmed.




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United States v. Morgan, No. 01-0663/AR

    SULLIVAN, Senior Judge (dissenting in part and concurring in

the result):


    I do not think there was any error by the trial judge in this

case.   See United States v. Van Doren, 182 F.3d 1077, 1080 (9th

Cir. 1999) (holding that district court’s colloquy with defendant

under Fed. R. Crim. P. 11 does not need to be word-for-word from

a set script). He explained to appellant his right to enlisted

members and was assured on the record that appellant understood

this right. (R.6-7)   He also asked the defense to indicate its

forum selection, but defense counsel deferred. (R.7) Furthermore,

he required defense counsel to notify the Government of its forum

selection in writing at a later date. (R.68-69)   Thus, it was

defense counsel who failed to reopen the previously deferred

matter with the trial judge on the record. (R.90-91)

    In any event, the record as a whole and common sense show

substantial compliance with Article 25, Uniform Code of Military

Justice, 10 USC § 825, and its requirement that appellant

personally request that enlisted members serve on his military

jury.   See United States v. Townes, 52 MJ 275, 277

(2000)(Sullivan, J., concurring in the result); see also United

States v. Turner, 47 MJ 348, 351 (1997)(Sullivan, J., concurring

in the result); United States v. Mayfield, 45 MJ 176, 178 (1996)

(Sullivan, J., concurring); United States v. Yates, 28 MJ 60 (CMA

1989); United States v. Jette, 25 MJ 16 (CMA 1987); see also

United States v. King, 28 MJ 397, 399 (CMA 1989).
United States v. Morgan, No. 01-0663/AR



       The following facts in the record amply support the

conclusion that there was substantial compliance with Article 25:

        1. Appellant was told by the judge about his right under
           Article 25 to have one-third of his military jury
           composed of enlisted members.(R.6-7)

        2. Appellant, acting through counsel, elected in writing to
           have a military jury with enlisted members. (Appellate
           Exhibit XXXVIII)

        3. Appellant was furnished a military jury with enlisted
           members. (court-martial convening order and R.95-96)

        4. In appellant’s presence, his civilian defense counsel (a
           retired JAG Officer and former prosecutor at Fort Sill)
           participated in the voir dire of the military jury.
           (R.119)

        5. There was no complaint about an Article 25 violation in
           the clemency materials.

        6. In the DuBay* hearing after the trial, the military judge
           found that appellant personally chose to be tried by a
           court consisting of at least one-third enlisted members.
           (DuBay hearing record at 82)


       Under these factual circumstances, I hold that there was

substantial compliance with the statutory requirement for a

personal request for a military jury with enlisted members.          See

Brown v. Burns, 996 F. 2d 219, 220-21 (9th Cir. 1993) (holding

analogous rules intended to provide best record evidence of a

defendant’s express consent).          Appellant’s conviction for the

wrongful importation and possession of 47.38 pounds of marijuana

should not be reversed due to his technical attack on the jury’s

verdict.      “Fairness and common sense, not technicalities, should

*
    17 USCMA 147, 37 CMR 411 (1967).



                                        2
United States v. Morgan, No. 01-0663/AR

rule the law.”   United States v. Townes, supra at 277.

Accordingly, I vote to affirm.




                                 3
United States v. Morgan, No. 01-0663/AR


     EFFRON, Judge (dissenting):


     The majority opinion concludes that a document entitled

“Notice of Plea and of Forum” submitted prior to trial and

signed solely by defense counsel substantially complies with the

requirement of Article 25(c)(1), Uniform Code of Military

Justice (UCMJ), 10 USC § 825(c)(1), that the accused

“personally” request “orally on the record or in writing” that

enlisted members serve on the court-martial panel.   The opinion

is contrary to the express statutory requirement established by

Congress, the purposes of the legislation, and the prior case

law of this Court.   I respectfully dissent.

     A convening authority has broad power to detail

commissioned and warrant officers to serve on courts-martial.

See Art. 25(a) and (b).   Congress, however, has sharply limited

the authority to assign enlisted personnel to courts-martial.

The present case involves the statutory restriction providing

that an enlisted member may serve on a court-martial “only if,

before the conclusion of a session called by the military judge

. . . prior to trial or, in the absence of such a session,

before the court is assembled..., the accused personally has

requested orally on the record or in writing that enlisted

members serve on it.”   Art. 25(c)(1) (emphasis added).   In the

present case, the record of the pretrial sessions and the other
United States v. Morgan, No. 01-0663/AR


proceedings prior to assembly of the court is clear.   No such

request was made on the record by appellant or by counsel on his

behalf.



I.   ENLISTED PARTICIPATION ON COURT-MARTIAL PANELS - HISTORICAL
       DEVELOPMENT OF THE CHOICES AVAILABLE TO THE ACCUSED

     The detailed review of the language, history, and purposes

of Article 25(c) by our Court in United States v. White, 21

USCMA 583, 45 CMR 357 (1972), underscores the importance of the

rights at stake in this case.   The UCMJ not only gives a

servicemember the right to be tried by a panel with enlisted

membership, it also gives the member the equally important right

to be tried by a panel that does not include enlisted members.

     From colonial times through World War II, courts-martial

were composed only of officers.   See id. at 584-85, 45 CMR at

358-59.   Following widespread dissatisfaction with the

administration of military justice during the Second World War,

Congress considered a variety of studies and proposals for

change, including change in the composition of courts-martial.

See id.; S. Rep. No. 81-486, at 3-4 (1949).

     In 1947, the Secretary of War forwarded to Congress

legislation which included a provision authorizing the detail of

enlisted persons to serve on courts-martial “when deemed proper

by the appointing authority.”   See 21 USCMA at 585, 45 CMR at



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United States v. Morgan, No. 01-0663/AR


359, quoting Hearings on H.R. 2575 to Amend the Articles of War

Before a Subcomm. of the House Comm. on Armed Services, 80th

Cong. 1904 (1947).   A competing bill was introduced by Rep.

Carol Durham, who had chaired one of the post-War military

justice investigations, which included an amendment providing an

accused with the “right to demand that enlisted personnel sit on

the court.”   See 21 USCMA at 585, 45 CMR at 359, quoting 1947

House Hearings, supra at 2163.   During the hearings, Congress

received testimony emphasizing that there were mixed views on

whether it would be beneficial, from the perspective of the

accused, for enlisted persons to sit on courts-martial.   The

primary concern was that an accused might not want to be tried

before a panel with enlisted court members on the ground that

the enlisted members selected by the appointing authority “would

be inclined to be considerably harsher than officer court

members.”   21 USCMA at 586, 45 CMR at 360.

     At the conclusion of the hearings, the Committee

recommended an amendment to the Articles of War authorizing

enlisted personnel to sit on courts-martial “when requested in

writing by the accused at any time prior to the convening of the

court.”   See 21 USCMA at 587, 45 CMR at 361 (quoting H.R. Rep.

No. 80-1034, at 1 (1947)).   Reflecting the likely skepticism by

an accused about the desirability of being tried before a panel

including senior enlisted members, the Committee Report added:


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United States v. Morgan, No. 01-0663/AR


“We seriously doubt that the inclusion of enlisted men as

members of the court will benefit enlisted men who are

defendants, however, the choice is properly a right of the

defendant.   Once having exercised that right he must assume the

responsibility for the results of his choice.”   Id. (quoting

H.R. Rep. No. 80-1034, at 6).

     In 1948, the amendment was included in the statute commonly

known as the Elston Act, the comprehensive revision of the

Articles of War, which served as the precursor to the UCMJ.     Act

of June 24, 1948, ch. 625, tit. II, § 203, 62 Stat. 604, 628.

As our Court observed in White, Congress further underscored the

right of the accused to make a choice when, in applying this

provision to all the services, the legislation added that the

request for enlisted members must be made “personally” by the

accused.   21 USCMA at 588, 45 CMR at 362 (quoting Article 25).

     In White, our Court concluded that because “an accused

cannot be compelled to be tried by a panel with enlisted

members,” the failure to obtain the requisite written request

prior to trial deprived the court-martial of jurisdiction --

even when there was an oral request by counsel on the record.

21 USCMA at 588-89, 45 CMR at 362-63 (citing McClaughry v.

Deming, 186 U.S. 49 (1902)).    White emphasized that the

requirement of Article 25 was that “an accused ‘personally makes

that choice and does the signing personally and doesn’t delegate


                                  4
United States v. Morgan, No. 01-0663/AR


it to anyone else—counsel or otherwise.’”    Id. at 587, 45 CMR at

361 (quoting Hearings on H.R. 2498 Before a Subcomm. of the

House Comm. on Armed Services, 81st Cong. 1147 (1949)).   White

also relied on United States v. Dean, 20 USCMA 212, 43 CMR 52

(1970), which found jurisdictional error in failure to comply

with the parallel language requiring a written request for a

trial by judge alone before the court is assembled.    See Art.

16, UCMJ, 10 USC § 816.

     In 1983, Congress amended Article 16 to permit a request

for trial by judge alone “orally on the record or in writing”

before assembly of the court.   Congress, however, did not make a

parallel change in Article 25(c)(1) with respect to the choice

of a court composed of enlisted members.    Military Justice Act

of 1983, Pub. L. No. 98-209, § 3(a), 97 Stat. 1393, 1394; see

also United States v. Brandt, 20 MJ 74, 77 (CMA 1985).    Absent a

parallel change in Article 25(c)(1), our Court declined to

permit an oral request for enlisted members -- emphasizing that

any such change “is for Congress and not for this Court.”

Brandt, supra.

     In light of our suggestion, Congress subsequently amended

Article 25(c)(1) to permit an oral request for enlisted members.

Even so, Congress left the remainder of the statute unchanged --

particularly the requirement for a personal choice by the

accused prior to assembly.   National Defense Authorization Act


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United States v. Morgan, No. 01-0663/AR


for Fiscal Year 1987, Pub. L. No. 99-661, § 803(a), 100 Stat.

3816, 3906.



                   II. DEFICIENCIES ON THE RECORD

     In United States v. Turner, 47 MJ 348 (1997) (trial by

judge alone), and United States v. Townes, 52 MJ 275 (2000), we

considered whether an oral request by counsel would constitute

substantial compliance with the requirement that the accused

make a personal choice of forum “orally on the record” under

Articles 16 and 25(c)(1), respectively.    Each case involved an

accused who received an explanation of his rights on the record,

and whose counsel made an oral request on the record in the

courtroom in the presence of the accused.    See 47 MJ at 350; 52

MJ at 276.    Under those circumstances, and in the absence of

anything contradictory in the record, we held that there was

substantial compliance with the statutory requirements.     47 MJ

at 350; 52 MJ at 277.

     The present case is different.    The record of the

proceedings prior to assembly contains no request for trial by

enlisted members by appellant, nor did counsel make such a

request on appellant’s behalf in appellant’s presence.     The

Court of Criminal Appeals recognized this deficiency, but erred




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United States v. Morgan, No. 01-0663/AR


by relying on a post-trial DuBay∗ hearing to remedy the defective

trial proceedings.        The record as to the accused’s choice of

forum must be made at trial, orally and on the record, Townes,

supra at 277; or in the case of a written election, it must be

signed by the accused personally, not by counsel.        White, supra.

        A jurisdictional deficiency cannot be corrected through a

post-trial reconstruction of events in a DuBay hearing.        See

United States v. Irvin, 21 MJ 184, 187 (CMA 1986).        A post-trial

attempt to reconstruct conversations between counsel and client

is no substitute for the statutory requirement of a request on

the record.       Likewise, the record cannot be cured through

reliance on a unilateral pretrial fax from defense counsel

describing what his client “will request” -- a document which on

its face describes only a possible future action, not a present

request.

        Congress has determined that the Sixth Amendment right to

trial by jury should not apply to members of the armed forces

tried by courts-martial, and that servicemembers may be tried by

courts-martial composed of members personally selected by the

commander who has exercised prosecutorial discretion to send the

case to trial.       In that context, it is particularly important to

ensure compliance with the limited rights that Congress has

provided servicemembers with respect to selection of forum.


∗
    17 USCMA 147, 37 CMR 411 (1967).

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United States v. Morgan, No. 01-0663/AR


     In Article 25(c)(1), Congress emphasized the importance of

demonstrating that the accused made a clear choice on the

record, prior to trial, showing the personal selection by the

accused with respect to enlisted members.   Article 25(c)(1)

reflects congressional recognition that servicemembers not only

have the right to a panel including enlisted members, but also

the right to a panel excluding enlisted members.   The record of

trial in the present case is devoid of an affirmative request

prior to assembly by appellant, or by counsel acting on his

behalf and with his knowledge and approval, for participation by

enlisted members.   Under these circumstances, the record does

not demonstrate substantial compliance with Article 25(c)(1),

and appellant’s conviction should be reversed.




                                 8
