                         UNITED STATES, Appellee

                                         v.

                   Jason M. BAGSTAD, Staff Sergeant
                     U.S. Marine Corps, Appellant

                                  No. 09-0429
                        Crim. App. No. 200602454

       United States Court of Appeals for the Armed Forces

                         Argued December 7, 2009

                          Decided April 13, 2010

STUCKY, J., delivered the opinion of the Court, in which EFFRON,
C.J., and RYAN, J., joined. BAKER, J., filed a separate
dissenting opinion, in which ERDMANN, J., joined.


                                     Counsel

For Appellant:   Major Anthony W. Burgos, USMC (argued).

For Appellee: Colonel Louis J. Puleo, USMC (argued); Lieutenant
Duke J. Kim, JAGC, USN, and Brian K. Keller, Esq. (on brief);
Captain Geoffrey S. Shows, USMC.

Amicus Curiae for Appellant: Eugene R. Fidell, Esq., Michelle
M. Lindo McCluer, Esq., Stephen A. Saltzburg, Esq., and Jonathan
E. Tracey, Esq. (on brief) -- for the National Institute of
Military Justice.

Military Judges:    J. Wynn (arraignment) and P. J. Ware (trial)

            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Bagstad, No. 09-0429/MC


     Judge STUCKY delivered the opinion of the Court.

     We granted review to determine whether the military judge

abused his discretion in denying Appellant’s challenge for cause

against Captain (Capt) Stojka, who sat with his subordinate on a

court-martial panel composed of three members.      We hold that the

military judge did not err in denying the challenge for cause.

                                I.

     Contrary to his pleas, a special court-martial composed of

members convicted Appellant of wrongfully using marijuana, in

violation of Article 112a, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 912a (2006).       The members sentenced

Appellant to a bad-conduct discharge and reduction to the lowest

enlisted grade.   The convening authority approved the bad-

conduct discharge but disapproved the reduction in grade, and

the United States Navy-Marine Corps Court of Criminal Appeals

(CCA) affirmed.   United States v. Bagstad, 67 M.J. 599, 602

(N-M. Ct. Crim. App. 2008).   The CCA had previously set aside

Appellant’s conviction and remanded for a rehearing or a

dismissal.   United States v. Bagstad, No. NMCCA 200602454, 2007

CCA LEXIS 444, at *1, 2007 WL 3307025, at *1 (N-M. Ct. Crim.

App. Oct. 31, 2007) (unpublished).

     At the second court-martial, the venire was originally

composed of five members:   Capt Pirttinen, Capt Stojka, First

Sergeant Nguyen, Gunnery Sergeant (GySgt) Walston, and GySgt


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United States v. Bagstad, No. 09-0429/MC


Hightower.   Voir dire revealed that Capt Stojka was the senior

reporting officer for GySgt Walston.   The military judge asked

GySgt Walston if he would feel inhibited in any way in voicing

an opinion that disagreed with Capt Stojka’s opinion, and GySgt

Walston responded that he would not.   The military judge then

asked Capt Stojka whether he would feel undermined if a

subordinate voiced an opinion different from his in

deliberations, and Capt Stojka responded that he would not.     The

defense did not question either Capt Stojka or GySgt Walston

about their senior-subordinate relationship.

     After questioning but prior to the challenges, the military

judge sua sponte expressed his intention to excuse Capt

Pirttinen based on her knowledge of the results of Appellant’s

previous trial.   The defense then challenged Capt Stojka for

cause, in part on the ground that Capt Stojka wrote GySgt

Walston’s fitness report.

     The Government responded by arguing that GySgt Walston was

an experienced staff noncommissioned officer who would have no

trouble being on the same panel as Capt Stojka.   The military

judge then denied the challenge for cause against Capt Stojka.

The military judge’s analysis did not specifically address Capt

Stojka’s reporting relationship with GySgt Walston.

     The defense exercised its peremptory challenge on GySgt

Hightower.   The military judge then formally excused Capt


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United States v. Bagstad, No. 09-0429/MC


Pirttinen and GySgt Hightower.   The defense did not object to

the final composition of the three-member panel.

                                 II.

     Appellant argues that the military judge’s denial of the

challenge for cause resulted in an unfair trial because the

senior member and one of his subordinates comprised the two-

thirds majority sufficient to convict.

     Rule for Courts-Martial (R.C.M.) 912(f)(1)(N) mandates that

a member be excused whenever he should not sit “in the interest

of having the court-martial free from substantial doubt as to

legality, fairness, and impartiality.”   “This rule encompasses

challenges based upon both actual and implied bias.”   United

States v. Elfayoumi, 66 M.J. 354, 356 (C.A.A.F. 2008) (citing

United States v. Clay, 64 M.J. 274, 276 (C.A.A.F. 2007)).

“Implied bias exists when, ‘regardless of an individual member’s

disclaimer of bias, most people in the same position would be

prejudiced . . . .’”   United States v. Briggs, 64 M.J. 285, 286

(C.A.A.F. 2007) (quoting United States v. Napolitano, 53 M.J.

162, 167 (C.A.A.F. 2000)).   The test for determining an R.C.M.

912(f)(1)(N) challenge for implied bias is objective, “‘viewed

through the eyes of the public, focusing on the appearance of

fairness.’”   Clay, 64 M.J. at 276 (quoting United States v.

Rome, 47 M.J. 467, 469 (C.A.A.F. 1998)).   The hypothetical

“public” is assumed to be familiar with the military justice


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United States v. Bagstad, No. 09-0429/MC


system.   See United States v. Downing, 56 M.J. 419, 423

(C.A.A.F. 2002).   In carrying out this objective test, this

Court determines “whether the risk that the public will perceive

that the accused received something less than a court of fair,

impartial members is too high.”   United States v. Townsend, 65

M.J. 460, 463 (C.A.A.F. 2008).    Challenges for actual or implied

bias are evaluated based on the totality of the factual

circumstances.   United States v. Bragg, 66 M.J. 325, 327

(C.A.A.F. 2008) (citing United States v. Strand, 59 M.J. 455,

459 (C.A.A.F. 2004)).

     This Court’s standard of review on a challenge for cause

premised on implied bias is “less deferential than abuse of

discretion, but more deferential than de novo review.”     United

States v. Moreno, 63 M.J. 129, 134 (C.A.A.F. 2006) (citing

United States v. Armstrong, 54 M.J. 51, 54 (C.A.A.F. 2000);

United States v. Napoleon, 46 M.J. 279, 283 (C.A.A.F. 1997)).

We apply less deference in this case because the military judge

did not place his analysis concerning the senior-subordinate

relationship portion of the challenge on the record.   See United

States v. Richardson, 61 M.J. 113, 120 (C.A.A.F. 2005)

(providing less deference where the military judge’s analysis

was not comprehensive).




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United States v. Bagstad, No. 09-0429/MC


                                      III.

     We find that the military judge did not err in denying the

challenge for two reasons.   First, there is no per se rule that

a military judge must dismiss a member “predicated solely on the

fact that a senior member of the court-martial is involved in

writing or endorsing the effectiveness reports of junior

members.”    United States v. Murphy, 26 M.J. 454, 456 (C.M.A.

1988); accord United States v. Wiesen, 56 M.J. 172, 175

(C.A.A.F. 2001).   And second, there was no other evidence in the

record indicating implied bias from the ratings relationship

that would cause the knowledgeable member of the public to

perceive that the accused’s court-martial panel was not fair and

impartial.   See Townsend, 65 M.J. at 463.

     Before the CCA and this Court, Appellant cited this Court’s

decision in Wiesen for the proposition that implied bias is

implicated where the senior member and his subordinate

constitute the two-thirds majority necessary to convict.     56

M.J. at 175.   But at the time of Appellant’s challenge for

cause, only half of the panel was involved in any senior-

subordinate relationship because Appellant had not yet exercised

his peremptory challenge on GySgt Hightower.     Appellant also did

not object to the final composition of the three-member panel on

the basis that it violated Wiesen.      As such, we review the

military judge’s denial of the challenge from the perspective of


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United States v. Bagstad, No. 09-0429/MC


when Appellant objected and the military judge pronounced his

ruling, not with hindsight and knowledge of the final

composition of the panel.

     Appellant’s challenge simply asserted that Capt Stojka

wrote GySgt Walston’s fitness report.        Appellant did not ask any

questions or make any argument on the record concerning the

relationships between members on the panel, the general nature

of relationships between company commanders and their gunnery

sergeants, or the actual nature of the relationship between Capt

Stojka and GySgt Walston beyond its senior-subordinate

component.   Under these circumstances, there is a lack of

evidence in the record supporting a claim of implied bias.

     A challenge for cause is a contextual judgment that is

determined through the totality of the factual circumstances.

In this case, the military judge’s denial of the challenge for

cause was in accord with this Court’s precedent that a member

need not be dismissed solely on the basis of a ratings

relationship with another member.       We are confident that, viewed

through the eyes of the public, the military judge’s denial of

the challenge for cause against Capt Stojka did not create doubt

as to the fairness of Appellant’s court-martial.

                                       IV.

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.


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United States v. Bagstad, No. 09-0429/MC


     BAKER, Judge, with whom ERDMANN, Judge, joins (dissenting):

     There is no per se rule against a reporting senior and a

subordinate sitting on the same court-martial panel.    See United

States v. Wiesen, 56 M.J. 172, 175 (C.A.A.F. 2001).     The mere

existence of a senior-subordinate relationship does not require

a per se disqualification; rather, the decision rests on the

context and is rooted in the public’s perception of the

deference accorded to military officers.

     The problem in this case is that Appellant was tried and

convicted by a three-member panel composed of a company

commander, that commander’s company gunnery sergeant, and a

senior enlisted member from another command.   That is a

structure that looks more like “company office hours”

(nonjudicial punishment) than a military court-martial.

     There is a reason the Military Judges’ Benchbook includes

voir dire questions regarding the reporting chain of command.

Dep’t of the Army, Pam. 27-9, Legal Services, Military Judges’

Benchbook ch. 2 § V, para. 2-5-1 (2010).   The reason is not

found in a per se rule of exclusion; nor out of concern that

military members might compromise their integrity for a better

fitness report.   Rather, some military relationships are just

too close to sustain public or military confidence in the fair

administration of justice where such members sit together.     As

stated in Wiesen:
United States v. Bagstad, No. 09-0429/MC


        [t]he focus is on the perception or appearance of
        fairness of the military justice system. At the same
        time, this Court has suggested that the test for
        implied bias also carries with it an element of actual
        bias. Thus, there is implied bias when most people in
        the same position would be prejudiced.

56 M.J. at 174 (citations and quotation marks omitted).    That

was the case in Wiesen and it is the case here.

        The problem with the majority’s analysis is that it treats

the reporting chain of command like a civilian human resources

department might treat it.    The administrative chain of command

is not a sterile concept, comprised of line diagrams and fitness

reports.    The analysis is divorced from the reality of military

life.    This case is not about fitness reports; it is about the

special relationship, particularly in Marine Corps life, which

exists in a company headquarters among the company commander,

his executive officer, the first sergeant, and the company

gunnery sergeant.

        The bond among these leaders may be strong or it may be

weak.    They may respect each other; they may not.   It need not

matter.    Whatever the actual rapport among these leaders in a

given company, the interplay is constant, the bond unique, and

the opportunity for influence or resentment continuous.    We

should, however, recognize that these relationships permeate

company grade life.    The point is that in a Marine company the




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United States v. Bagstad, No. 09-0429/MC


relationship between the commanding officer and the company

gunnery sergeant holds a special place.

       The majority avoids the special nature of company grade

relationships in the Marine Corps by asserting that defense

counsel only objected to the nature of the “reporting

relationship” between Captain Stojka and Gunnery Sergeant

Walston.   United States v. Bagstad, __ M.J. __ (3) (C.A.A.F.

2010).   In other words, defense counsel forfeited any objection

that extended beyond the drafting of fitness reports, because he

did not specifically raise “the Gunny objection.”   This argument

presumes that the military judge, a Marine lieutenant colonel,

did not understand the relationship between a company gunnery

sergeant and the company commander.   Although a civilian judge

may not be familiar with this relationship, a military judge

does not need an explanation from counsel concerning “the

general nature of relationships between company commanders and

their gunnery sergeants.”   Bagstad, __ M.J. at __ (7).

       The majority also addresses the issue by arguing that at

the time the defense objected the panel consisted of four

members only two of which came from the same company.     Id. at __

(6).   Military judges are not required to be prescient, but they

are required to think one step ahead.   Here, the initial panel

was composed of only five members.    Thus, it should not have

required omnipotence on the part of the military judge to

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United States v. Bagstad, No. 09-0429/MC


anticipate the possibility that two members of the same company

headquarters could end up on a three-member panel.1

     Whatever the public might perceive regarding the appearance

of fairness in the military justice system, and I am confident

“the public” would find the composition of this three-member

panel dubious, I am certain that a junior enlisted Marine would

think a panel composed like the one in this case was anything

but fair.   Therefore, I respectfully dissent.




1
  As in Wiesen, 56 M.J. at 176, the record does not reflect an
exigent or military circumstance limiting the pool of available
members or requiring selection of these particular members to
the panel.
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