

   
   
   
   U.S. v. Roland



United States, Appellee
v.
Jason S. ROLAND, Airman
U.S. Air Force, Appellant
 
 
No. 98-0015
Crim. App. No. 32485

United States Court of Appeals for the Armed
Forces
Argued October 5, 1998
Decided March 17, 1999


CRAWFORD, J., delivered the opinion of the
Court, in which COX, C.J., and EVERETT, S.J., joined. SULLIVAN, J., filed
an opinion concurring in the result. GIERKE, J., filed a dissenting opinion.



Counsel
For Appellant: Captain Karen L. Hecker
(argued); Colonel
Douglas H. Kohrt, Captain Margarete
Ashmore, and Captain
Harold M. Vaught (on brief).
For Appellee: Major Ronald A. Rodgers
(argued); Lieutenant Colonel Michael J. Breslin and Major Allen
G. Erickson
(on brief); Colonel Brenda J. Hollis
and Lieutenant Colonel
Anthony P. Dattilo.
Military Judge: Willard L. Pope, Jr.
 
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.


Judge CRAWFORD delivered the opinion
of the Court.
Pursuant to his pleas, appellant, a
Private E-2, was convicted and sentenced by officer and enlisted members
of use and distribution of methamphetamines, and introduction of methamphetamines
onto McChord Air Force Base, in violation of Article 112(a), Uniform Code
of Military Justice, 10 USC
§ 912(a). The convening authority
approved the sentence of a bad-conduct discharge, 9 months' confinement,
and reduction to the lowest enlisted grade. The Court of Criminal Appeals
affirmed the findings and sentence in an unpublished opinion.
We granted review of the following
issue:

WHETHER THE MILITARY JUDGE ERRED
IN FAILING
TO FIND THAT THE JURY HAD BEEN IMPROPERLY
SELECTED.

We hold that the military judge did not
err in failing to find that the court members were improperly selected.*

FACTS
At appellants trial, his defense counsel moved
to dismiss the charges or stay the proceedings until a new panel could
be selected in accordance with RCM 912(b)(1), Manual for Courts-Martial,
United States (1998 ed.). He principally contended that enlisted members
below the grade of E-5 were unlawfully excluded from consideration as panel
members in appellant's case.
Lieutenant Colonel (LtCol) Tuley, the staff
judge advocate (SJA), testified that she routinely sent a quarterly letter
to the commanders of six groups and large squadrons at McChord, asking
them for court member nominations. Her letter sought qualified personnel
from every grade from E-5 through O-6. Two group executive officers interpreted
the SJA's letter to preclude the nomination of anyone below the rank of
E-5.
Colonel (Col) Duncan McNabb testified by stipulation
that he was the special court-martial convening authority at McChord at
the time of appellant's trial. As such, one of his duties was to forward
a list of potential court members to the general court-martial convening
authority (GCMCA), a list compiled by reference to the quarterly nominations
made by the group and squadron commanders. Col McNabb testified that he
was aware of the criteria set forth in Article 25, UCMJ, 10 USC §
825; understood that he was not limited to those nominated by other commanders;
and knew that he could select any members he found to be qualified. He
also testified that he did not know that the pool of nominees was limited
to E-5 and above, and that if E-4 and below were submitted to him as potential
court members, he would consider them and select those that met the requisite
criteria.
From the list of nominees submitted by Col
McNabb, the GCMCA selected four enlisted members, but only three of the
four were members Col McNabb recommended. The memorandum transmitting the
list to the GCMCA indicated that he was not limited to the proposed enlisted
members, but could select any enlisted members from his command, provided
they met the Article 25 criteria.
No evidence was introduced as to bad faith
by either the SJA or the GCMCA; nor was statistical evidence introduced
from which one may draw an inference of improper intent concerning the
selection of court members.
The military judge noted the presumption that
the GCMCA was aware of his duty under Article 25, as well as his unlimited
discretion in selecting court members of any rank; and the judge found
no evidence to the contrary. He ruled that the court members were selected
"within the legally allowable system under Article 25." Notwithstanding
this ruling, the military judge remonstrated, "[T]his is not a great system
and I highly recommend if it has not been changed that it be changed because
we spend time dealing with it."

DISCUSSION
The Sixth Amendment provides: "In all criminal
prosecutions, the accused shall enjoy the right to a speedy and public
trial, by an impartial jury...." However, the military defendant does not
have a right to a jury selected from the civilian community. See
Solorio v. United States, 483 U.S. 435, 453 (1987)(Marshall, J.,
dissenting)(Courts decision rejects right to indictment by grand jury
and trial by jury of ones peers, even for non-service-connected offenses);
Ex parte Quirin, 317 U.S. 1, 39-43 (1942)(dictum);
Kahn v. Anderson, 255 U.S. 1, 8-9 (1921); Ex parte
Milligan, 71 U.S. 2, 107, 123 (1866); United States v. McClain,
22 MJ 124, 128 (CMA 1986); United States v. Jenkins, 20 USCMA 112,
114, 42 CMR 304, 306 (1970). But, the military defendant does have a right
to members who are fair and impartial. Wainwright v. Witt, 469 U.S.
412 (1985); Chandler v. Florida, 449 U.S. 560 (1981).
Congress, pursuant to its authority under Article
I, Section 8, Clause 14 of the Constitution, has given the convening authority
the responsibility to select court members to sit on courts-martial. See
Art. 25(d)(2). In addition, the Supreme Court has accorded judicial "deference
to the determination of Congress, made under its authority to regulate
the land and naval forces." Weiss v. United States, 510 U.S. 163,
177 (1994), quoting Middendorf v. Henry, 425 U.S. 25, 43 (1976).
The convening authority is required to detail
the court members. RCM 503-505. To ensure fairness and impartiality, "[n]o
person subject to [the UCMJ] may attempt to coerce or,
by any unauthorized means, influence the action
of a court-martial ... in reaching the findings or sentence in any case."
Art. 37(a), UCMJ, 10 USC § 837(a). Additionally, the conduct of members
may not be the subject of a report card or a fitness report. Art. 37(b).
This Court has been diligent in preventing the improper influence of court
members, witnesses, or other parties to the trial.
While the military defendant is not entitled
to a panel composed of a cross-section of the military community, United
States v. Lewis, 46 MJ 338, 341 (1997), the members may not be selected
solely on the basis of their rank. United States v. Nixon, 33 MJ
433 (CMA 1991) (unanimous court found that, while lack of enlisted personnel
below E-8 created appearance of impropriety, evidence showed compliance
with Article 25). Thus, while it is permissible to appoint senior, qualified
court members, United States v. White, 48 MJ 251 (1998), the lower
grades may not be systematically excluded. United States v. McClain,
22 MJ 124 (CMA 1986) (Court found improper motive for systematic exclusion
of enlisted members below E-7); United States v. Yager, 7 MJ 171,
173 (CMA 1979) (Court held that panel selection process excluding enlisted
members below E-3 was not invalid because "there was a demonstrable reason
for the exclusion of these grades reasonably related to...Article 25(d)(2)");
United States v. Daigle, 1 MJ 139 (CMA 1975) (selection process
involving nomination by subordinate commanders based solely on requested
ranks and without reference to Article 25 criteria was found improper);
United States v. Greene, 20 USCMA 232, 43 CMR 72 (1970); United
States v. Crawford, 15 USCMA 31, 40, 35 CMR 3, 12 (1964). Nor may a
court-martial be "packed" to achieve a desired result. United States
v. White, supra; United States v. Hilow, 32 MJ 439, 440
(CMA 1991); United States v. Smith, 27 MJ 242 (CMA 1988).
To enforce the right to fair and impartial
members, this Court has required broad discovery and compulsory process
on motions challenging the selection of members. The military defendant
also has the option of having the findings and sentence determined by a
military judge alone or by a court composed of members selected by the
convening authority. Furthermore, any commissioned officer or warrant officer
may serve as a court member, and when there has been a request in writing
by an enlisted defendant, enlisted personnel are eligible to serve on general
or special courts-martial. Also, a safeguard against any improper conduct
in the selection process is mandatory appellate review in many cases before
the Court of Criminal Appeals and a few cases before this Court. And finally,
there is direct appeal under certain conditions to the Supreme Court.
It was not until the Elston Act in 1948 that
an enlisted defendant had a right to have at least one-third of the members
be enlisted personnel. 62 Stat. 604, 628 (1948). An earlier proposal to
appoint enlisted members was not enacted. S. 64, 66th Cong., 1st Sess.
(1919).
Article 25(d)(2) states that the members should
be selected on a "best qualified" basis, examining "age, education, training,
experience, length of service, and judicial temperament." Article 25(d)(1)
provides that a defendant normally should not be tried by a member who
is his or her junior in rank. Article 25 does not set forth grade or status
as a criteria for selection. And although this means that young soldiers
in the lower enlisted ranks are eligible for selection, in many instances
a Private E-2, for example, may be in his or her late 20s and have a college
degree and extensive training and experience in the civilian sector.
The selection process normally starts with
the SJA seeking nominations from subordinate jurisdictions. Presenting
nominations to a convening authority is a reasonable means of assisting
the convening authority, provided it does not improperly exclude eligible
servicemembers. See United States v. Kemp, 22 USCMA 152,
46 CMR 152 (1973). This nomination process may not systematically exclude
or include a certain category of servicemembers. When the request for nominations
does improperly include or exclude certain members, this Court will ensure
that those actions do not taint the selection by the convening authority.
"[W]e have never held that the impact of [such] improper assistance can
be ignored solely on the basis of the convening authoritys official duty
to personally select the members in accordance" with the UCMJ. Hilow,
32 MJ at 442. A court-martial must be properly convened: "[B]lanket exclusion
of qualified officers or enlisted members in the lower grades is at odds
with congressional intent and cannot be sustained." Nixon, 33 MJ
at 434.
Once the defense comes forward and shows an
improper selection, the burden is upon the Government to demonstrate that
no impropriety occurred. While there was no selection of anybody below
the grade of E-5 here, the defense has not carried its burden to show that
there was unlawful command influence. The record establishes how the members
were selected, and there is no indication of impropriety. LtCol Turley
testified that E-4's and below were not categorically excluded. Other groupings
simply had been identified. Additionally, Col McNabb testified that he
knew he was not limited to the selection of those recommended, but could
select any member of the command he felt qualified.
The decision of the United States Air Force
Court of Criminal Appeals is affirmed. Collection of any forfeitures, and
execution of the reduction in grade prior to the date of the convening
authority's action, are hereby declared to be illegal. Any forfeitures
already collected from appellant, and any pay and allowances withheld because
of the illegal reduction in grade, will be restored. The record of trial
is returned to the Judge Advocate General of the Air Force for appropriate
action.
FOOTNOTE:
*We
also granted review of the following issue:

WHETHER THE APPLICATION OF
ARTICLES 57(a) AND 58b, UCMJ, VIOLATES THE EX POST FACTO
CLAUSE OF THE UNITED STATES CONSTITUTION WITH RESPECT TO APPELLANT.

This issue has already been disposed
of in United States v. Gorski, 47 MJ 370, 375 (1997).
 
 
SULLIVAN, Judge (concurring in the result):
The staff judge advocates (SJA) letter sought
court nominations from every grade from E-5 to 0-6 to be included in the
recommended jury pool. The implicit exclusion of certain ranks (E-4 and
below) in appellants case troubles me. However, the SJAs letter, on its
face, was designated as mere guidance, and the convening authority was
informed of his opportunity to select anyone from his command. Moreover,
the military judge found that no bad intent to influence the court-martial
and no deliberate stacking of the pool existed, as in United States
v. Hilow, 32 MJ 439 (CMA 1991). I would hold there was no violation
of Articles 25 and 37, Uniform Code of Military Justice, 10 USC §§
825 and 837, in these circumstances. Perhaps, if a random jury selection
system now being studied by the Department of Defense is adopted, challenges
like the one in this case will occur less. See United States
v. Upshaw, 49 MJ 111, 114 (1998)(Sullivan, J., concurring).
 
 
GIERKE, Judge (dissenting):
I disagree with the majoritys conclusion that
enlisted persons in pay grade E-4 and below were not systematically excluded.
___ MJ (8-9). In my view, the Government has not carried its burden
to show that appellants court-martial was properly selected.
In United States v. McClain, 22 MJ 124
(CMA 1986), this Court held that the court-martial was improperly selected
because enlisted persons below pay grade E-7 were systematically excluded.
In United States v. Daigle, 1 MJ 139 (CMA 1975), this Court held
that the court-martial was improperly selected because lieutenants and
warrant officers were systematically excluded. In United States v. Greene,
20 USCMA 232, 43 CMR 72 (1970), this Court held that the court-martial
was improperly selected where membership was limited to colonels and lieutenant
colonels.
In none of these cases did this Court place
the burden on the defense to show unlawful command influence. To the contrary,
this Court placed the burden on the Government to show that the court-martial
was properly selected. See Greene, 20 USCMA at 238, 43 CMR
at 78 ("[W]e are not convinced that an improper standard was not used for
the selection of the members of this court."). All that was required of
the defense was a showing that qualified, potential members appeared to
be systematically excluded. The only systematic exclusion permitted by
this Court thus far is the exclusion of enlisted persons in pay grades
E-1 and E-2. See United States v. Yager, 7 MJ 171 (CMA 1979)
(E-1 and E-2 are presumptively unqualified under Article 25(d).
In my view, our holdings in the above-cited
cases compel the conclusion that categorically excluding all persons below
the pay grade of E-5 is improper. Persons in pay grade E-4 are sergeants
in the Air Force, with the full legal authority of noncommissioned officers.
See Arts. 91 and 92, Uniform Code of Military Justice, 10 USC §§
891 and 892, respectively. As such, I do not believe that they can be considered
presumptively unqualified.
Furthermore, I do not believe that the exclusion
of enlisted members in pay grades E-4 and below can be characterized as
an administrative mistake as it was in United States v. Upshaw,
49 MJ 111 (1998). In Upshaw, the exclusion of qualified members
was inadvertent; in this case, it was intentional.
The staff judge advocate, Lieutenant Colonel
Tuley, was acting with the mantle of command authority when she tasked
subordinate commands to nominate enlisted members in grades E-5 through
E-9. See United States v. Hilow, 32 MJ 439, 441 (CMA 1991)
(actions of staff judge advocate and deputy adjutant general attributed
to commander). Her testimony that she would consider nominees in pay grades
E-4 and below does not pass the reality test. Subordinates respond to taskings
literally; they do not nominate persons in pay grade E-4 and below when
the tasking specifies pay grade E-5 and above.
Finally, I believe that systematic exclusion
of qualified persons is a structural error that cannot be tested for prejudice.
Except for leaving guilty pleas undisturbed, because findings in such cases
are by the military judge even though the trial is by members, we have
not attempted to assess the impact of systematic exclusion on findings
or sentence. See United States v. Daigle and United States
v. Greene, both supra.
In my view, appellant is entitled to relief
because of the improper exclusion of qualified nominees. I would reverse
the decision of the court below.
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