             UNITED STATES, Appellee/Cross-Appellant

                                         v.

                 Jessie A. QUINTANILLA, Sergeant
           U.S. Marine Corps, Appellant/Cross-Appellee

                        Nos. 05-0274 and 05-5001
                          Crim. App. No. 9801632

       United States Court of Appeals for the Armed Forces

                         Argued December 6, 2005

                          Decided March 28, 2006

EFFRON, J., delivered the opinion of the Court, in which GIERKE,
C.J., and CRAWFORD, BAKER, and ERDMANN, JJ., joined.

                                     Counsel


For Appellant/Cross-Appellee: Lieutenant Commander Jason S.
Grover, JAGC, USN (argued); Lieutenant Colonel Joseph R. Perlak,
USMC, Lieutenant Elysia G. Ng, JAGC, USN, and Lieutenant Stephen
C. Reyes, JAGC, USNR (on brief); Captain Pamela A. Holden, JAGC,
USN.


For Appellee/Cross-Appellant: Major Wilbur Lee, USMC (argued);
Commander Charles N. Purnell II, JAGC, USN, and Captain Glen R.
Hines, USMC (on brief); Colonel William K. Lietzau, USMC.



Military Judge:    J. F. Blanche



            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Quintanilla, Nos. 05-0274/MC and 05-5001/MC


    Judge EFFRON delivered the opinion of the Court.

    At a general court-martial composed of officer and enlisted

members, Appellant/Cross-Appellee (Appellant) was convicted,

contrary to his pleas, of premeditated murder, in violation of

Article 118, Uniform Code of Military Justice (UCMJ), 10 U.S.C.

§ 918 (2000).   In addition, the court-martial convicted

Appellant, contrary to his pleas, of attempted unpremeditated

murder (two specifications), violation of an order, aggravated

assault (two specifications), unlawfully carrying a concealed

weapon, communicating a threat, and obstruction of justice, in

violation of Articles 80, 92, 128, and 134, UCMJ, 10 U.S.C. §§

880, 892, 928, 934 (2000).   Appellant was sentenced to death,

forfeiture of all pay and allowances, and reduction to the

lowest enlisted grade.   The convening authority approved the

adjudged sentence.   On appeal, the United States Navy-Marine

Corps Court of Criminal Appeals set aside the findings and

sentence and authorized a rehearing.   United States v.

Quintanilla, 60 M.J. 852, 863, 868 (N-M. Ct. Crim. App. 2005).

     The Judge Advocate General of the Navy certified the

following issues under Article 67(a)(2), UCMJ, 10 U.S.C. §

867(a)(2) (2000):

          I.    WHETHER THE NAVY-MARINE CORPS COURT OF
                CRIMINAL APPEALS ERRONEOUSLY APPLIED A
                HEIGHTENED STANDARD OF REVIEW IN
                DETERMINING THAT THE MILITARY JUDGE
                ABUSED HIS DISCRETION BY GRANTING THE


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United States v. Quintanilla, Nos. 05-0274/MC and 05-5001/MC


                GOVERNMENT’S CHALLENGE FOR CAUSE
                AGAINST MASTER SERGEANT BUCKHAM, A
                VENIREMAN IN THE CASE.

          II.   WHETHER THE NAVY-MARINE CORPS COURT OF
                CRIMINAL APPEALS IMPROPERLY CONSIDERED
                A POST-TRIAL AFFIDAVIT FROM MASTER
                SERGEANT BUCKHAM, A VENIREMAN IN THIS
                CASE, IN DETERMINING THAT THE MILITARY
                JUDGE ABUSED HIS DISCRETION BY GRANTING
                THE GOVERNMENT’S CHALLENGE FOR CAUSE.

          III. WHETHER THE NAVY-MARINE CORPS COURT OF
               CRIMINAL APPEALS ERRED WHEN IT SET
               ASIDE BOTH THE FINDINGS AND SENTENCE,
               RATHER THAN THE SENTENCE ALONE, AS A
               REMEDY FOR THE MILITARY JUDGE’S EXCUSAL
               OF A VENIREMAN.

     On Appellant’s petition, we granted review of the following

issues:

          I.    THE LOWER COURT FOUND ERROR IN THE
                MILITARY JUDGE’S FAILURE TO SEQUESTER
                THREE GOVERNMENT WITNESSES BUT HELD
                THAT THE ERROR DID NOT PREJUDICE THE
                APPELLANT. DID THE LOWER COURT
                PROPERLY APPLY THE TEST FOR PREJUDICE
                UNDER UNITED STATES v. LANGSTON, 53
                M.J. 335 (C.A.A.F. 2000) AND UNITED
                STATES v. SPANN, 51 M.J. 89 (C.A.A.F.
                1999)?

          II.   THE LOWER COURT FOUND THAT THE MILITARY
                JUDGE USED AN INCORRECT LEGAL TEST IN
                GRANTING A GOVERNMENT CHALLENGE FOR
                CAUSE BECAUSE A MEMBER MIGHT HAVE
                “DIFFICULTY” IN VOTING FOR A DEATH
                SENTENCE. DID THE LOWER COURT ERR IN
                NONETHELESS CONCLUDING THAT THE
                MILITARY JUDGE DID NOT ABUSE HIS
                DISCRETION IN GRANTING THE CHALLENGE
                FOR CAUSE?

          III. THE LOWER COURT FOUND MULTIPLE
               OCCASIONS OF PROSECUTORIAL MISCONDUCT


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United States v. Quintanilla, Nos. 05-0274/MC and 05-5001/MC


                IN THE COURT-MARTIAL. DID THE LOWER
                COURT ERR IN DETERMINING THAT THE
                APPELLANT WAS NOT PREJUDICED BY THE
                PROSECUTORIAL MISCONDUCT?

     For the reasons set forth below, we conclude that the

military judge erred in granting a prosecution challenge to a

panel member.   We also conclude that the lower court erred in

setting aside the findings as a remedy for the military judge’s

error.   We affirm that portion of the lower court’s decision

ordering further proceedings on the sentence.



                         I.   BACKGROUND

     Appellant entered the office of his squadron executive

officer (XO), Lieutenant Colonel (LtCol) Daniel Kidd, at Camp

Pendleton, California, and shot him.       LtCol Kidd staggered into

an adjacent room where the squadron commanding officer (CO),

LtCol Thomas Heffner, was preparing for an inspection.

Appellant entered the room, shot LtCol Heffner in the chest, and

shot LtCol Kidd again.   LtCol Heffner was able to escape.     LtCol

Kidd died shortly thereafter.

     As Appellant pursued LtCol Heffner, he pointed his pistol

at two Marines but did not discharge the weapon.      Appellant shot

at and missed a third Marine, who disarmed Appellant.      Appellant

fled, encountered a number of Marines who were unaware of the




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United States v. Quintanilla, Nos. 05-0274/MC and 05-5001/MC


shootings, and said:   “Gunnery Sergeant, apprehend me, I just

shot the CO and XO.”   See Quintanilla, 60 M.J. at 854-55.



             II. THE GOVERNMENT’S CHALLENGES FOR CAUSE
      (CERTIFIED ISSUES I, II, AND III, AND GRANTED ISSUE II)

                          A.   BACKGROUND

      At the ensuing court-martial, the military judge granted

the prosecution’s challenge for cause against two members of the

panel, LtCol D’Ambra and Master Sergeant (MSgt) Buckham III.

The Court of Criminal Appeals ruled that the military judge

erred in granting the challenge as to MSgt Buckham but did not

err in granting the challenge as to LtCol D’Ambra.    Id. at 860-

61.   In Certified Issues I-III, the Government seeks to reverse

the court below with respect to MSgt Buckham, thereby sustaining

the ruling by the military judge.     In Granted Issue II,

Appellant seeks to reverse the court below with respect to LtCol

D’Ambra, thereby overturning the military judge.

      During voir dire, the military judge permitted counsel to

examine the panel members for the purpose of identifying

possible grounds for challenge.   See Rule for Courts-Martial

(R.C.M.) 912(d).   We shall consider below the statements by

LtCol D’Ambra and MSgt Buckham, the views of the parties at

trial, and the rulings of the military judge.




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United States v. Quintanilla, Nos. 05-0274/MC and 05-5001/MC


1.   Voir Dire of MSgt Buckham

      In response to questions from trial counsel about his

religious beliefs, MSgt Buckham stated that he was a deacon in a

Baptist church that was part of the Baptist General Conference.

Trial counsel inquired as to the views of the Baptist General

Conference on the death penalty:

           Q: Now, do you know what the church’s stand
           or what their plank is on the death penalty?

           A: Our -- to the best of my knowledge, our
           church has no official position.

Trial counsel also asked whether the death penalty had been the

topic of conversation at the church:

           Q: Have you ever discussed that in church
           or discussed that in some Bible studies,
           stuff like that, conversations like that,
           the death penalty?

           A:    Not that I recall, sir.

After receiving these negative replies, trial counsel sought to

explore MSgt Buckham’s views on the Bible:

           Q: Okay. Describe for me generally the
           death penalty in the biblical context.

           A: Well, sir, I certainly haven’t formed a
           conviction of what the Bible says about the
           death penalty.

Following an extended discussion of a biblical passage, trial

counsel asked:

           Q: Do you think from that parable of the
           Bible and that story that Christ has
           forbidden you, if you believe in


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United States v. Quintanilla, Nos. 05-0274/MC and 05-5001/MC


          Christianity from voting for the death
          penalty?

          A: I don’t believe that is particularly
          something that would go into building a
          conviction about the death penalty.

          Q:   Is there --

          A: Not -- I do not -- I don’t believe that
          that prohibits me from thinking that the
          death penalty is a valid action.

          Q: Okay. I got the impression there was
          something else that you were going [to] say.
          Is there maybe something else there that
          would prohibit you from considering that?

          A:   No, sir.

          Q: Nothing else in the New Testament?
          Anything else in the Bible that you think
          makes you kind of sit back and say, you
          know, I’m not sure we should be doing this?

          A: No, sir. I believe the death penalty is
          a not often used means of -- of -- of a
          penalty, that if -- if warranted, is just.
          And I also think it is a -- is a factor in
          society that would prohibit others from
          doing like crimes.

Trial counsel then sought to explore whether MSgt Buckham might

pray before making a major decision, such as whether to impose

the death penalty:

          Q: Let me ask you this: As a Christian, do
          you pray about important decisions?

          A:   Yes, sir.

          Q: Significant decisions, you seek
          direction from God?

          A:   Yes, sir.


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United States v. Quintanilla, Nos. 05-0274/MC and 05-5001/MC


          ADC: Sir, objection. At this point, I
          think we’re getting way too personal with
          the [Master Sergeant]. These are personal
          convictions that don’t need to be aired in
          this courtroom.

          MJ:   Sustained.   Let’s move on.

          ATC: Generally, sir -- I’ll back off from
          that. But the one question I wanted to get
          to, sir, was whether in this case the Master
          Sergeant felt that when he voted for death
          or not to vote for death, whether he would
          consider that a decision he would need to
          pray about.

          MJ:   All right.   You can ask that question.

          Q: Does that question kind of make sense to
          you, Master Sergeant?

          A: Sir, would you ask the question again,
          please.

          Q: When you go back in that deliberation
          room and you’re all talking about -- if we
          ever get to that point, okay, and you are
          deciding whether to vote for the death
          penalty for Sergeant Quintanilla or vote
          against the death penalty, is that a
          decision that you feel that is one of those
          important decisions that we just talked
          about that you would actually pray about and
          seek direction from God about?

          A: Sir, my -- my aim is to live     my life in
          prayer through the meditation of    God’s word
          and the application of that word    on a daily,
          even hourly basis. So in answer     to that
          question, yes, I would make it a    matter of
          prayer.

          Q: I’m certainly not trying to give you the
          impression that you shouldn’t do that at
          all.

          A:    Understood, sir.


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United States v. Quintanilla, Nos. 05-0274/MC and 05-5001/MC


Defense counsel then asked MSgt Buckham to elaborate on the

responses he had given to trial counsel’s questions about

religion:

            ADC: [Master Sergeant], I take it from your
            discussion [with trial counsel] that you
            possess a great personal faith and that
            faith is a very high priority in your life;
            correct?

            A:   That’s correct, sir.

            Q: And when asked about would you weigh
            this -- would you have to pray about this
            decision, I take it from the way you live
            your life you pray about all weighty
            decisions and that’s a part of who you are.
            Fair enough?

            A:   Yes, sir.

            . . . .

            Q: And if [the military judge] tells you
            how this case shapes up, if the death
            penalty is a valid and authorized penalty,
            then you have to be able to consider that
            and be able to possibly do that. Are you
            able to do that, [Master Sergeant]?

            A:   To consider what the judge --

            Q: Right. Exactly. If [the military
            judge] tells you that the death penalty may
            be authorized in this case, and this [is] an
            authorized punishment, you have to be able
            to consider using the death penalty or
            ordering the death penalty. Can you do
            that?

            A:   Yes, I can, sir.




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United States v. Quintanilla, Nos. 05-0274/MC and 05-5001/MC

2.   Voir Dire of LtCol D’Ambra

      Trial counsel asked LtCol D’Ambra about his willingness to

consider the death penalty:   “If the government meets all of its

burdens in this case . . . can you seriously consider the death

penalty in this case?”   LtCol D’Ambra responded:   “I can

consider it.”   Trial counsel noted that on his pretrial

questionnaire, LtCol D’Ambra stated that he had “mixed” feelings

about the death penalty, and asked:    “Do you have any leanings

one way or another that you feel will give you trouble

considering the death penalty?”    In response, LtCol D’Ambra said

that he was not sure what trial counsel was “driving at.”    He

added:

           Basically it would be religious -- for
           religious reasons, whether I am -- I just
           can’t make that decision at this time over
           something I was afraid of whether I could
           actually vote for a death penalty. I mean,
           I certainly feel that it is justified but
           it’s the other side that contradicts whether
           it is ever warranted.

The dialogue then turned to LtCol D’Ambra’s religion:

           Q: Sir, I notice from your questionnaire
           you are -- you’re a practicing Catholic.

           A:   Yes.

           Q: Is there anything about that, your
           religion, that will prevent you from
           seriously considering the death penalty
           should the government, again, meet all of
           its burdens in this case?




                                  10
United States v. Quintanilla, Nos. 05-0274/MC and 05-5001/MC

           A: Well, as far as I know the Catholic
           church does -- is against the death penalty.
           But, again, it all goes to a conscious
           decisions [sic] I’ll have to make and it’s
           just something that I’ll have to wait and
           consider.

Trial counsel asked specifically about the relationship between

LtCol D’Ambra’s religious affiliation and the application of the

death penalty in the present case:

           Q: Will you have difficulty considering the
           death penalty, should the government meet
           all of its burdens, because of your
           religion?

           A: I don’t know if I’ll have difficulty but
           it’s going to be something that I’ll have to
           wrestle with, yes.

      In response to questions by defense counsel, LtCol D’Ambra

confirmed that he would not rule out the death penalty.   LtCol

D’Ambra responded affirmatively when defense counsel asked

whether he would be able to weigh and consider the death penalty

“if the military judge instructs you that the death penalty may

be a valid option of punishment in this case.”

3.   The Government’s challenges to LtCol D’Ambra and MSgt
     Buckham

      Following voir dire, trial counsel challenged several

members of the panel for cause, including LtCol D’Ambra and MSgt

Buckham.   With respect to LtCol D’Ambra, trial counsel argued:

           Our basis would be in his discussion about
           his religious faith and that he would need
           to pray about his decision in regard to the
           death penalty. It’s an obvious notation


                                11
United States v. Quintanilla, Nos. 05-0274/MC and 05-5001/MC

             that he’s a practicing Catholic and the
             Catholic churches oppose to [sic] the death
             penalty.

             We believe that would certainly leave the
             impression that he could not consider that -
             - the fact -- I think it works both ways in
             this case. The fact if he’s praying about
             this decision or feels his religious
             decision is that, in fact, he should give
             the death penalty or shouldn’t give it,
             that’s not going to be based on the evidence
             presented in this case but on a more
             personal side of the house in his prayer
             life, I guess is better words.

Defense counsel responded by highlighting the statement by LtCol

D’Ambra that he could consider the death penalty.    Defense

counsel also took the position that a panel member should not be

excused for praying over a major decision:    “Simply by the fact

that he may need to pray over a big decision shouldn’t excuse

him, sir.    We take that into court when we make our decisions.

Members take their real life experiences and use that to make

their decisions.”

     Trial counsel next challenged MSgt Buckham, stating:

“Again, same similar issues on that one, sir.    Again, he

discusses about seeking guidance from God, praying about that

decision.”    Noting that MSgt Buckham reacted emotionally when

faced with questions regarding his religious beliefs, trial

counsel said:    “If he’s having a difficult time at this point

certainly when we’re at that stage of the trial he’s going to be

faced with that same or similar difficulty.”


                                  12
United States v. Quintanilla, Nos. 05-0274/MC and 05-5001/MC

      In response, defense counsel said:

           We object to that, sir. It’s not a basis
           for a challenge for cause. He states he
           feels the death penalty is a deterrent.
           He’s not prohibited from imposing the death
           penalty by any religious beliefs. There’s
           nothing in his biblical studies that would
           restrict him from imposing the death
           penalty. He could consider it. Simply
           because he’s emotional and he may pray about
           something, the same arguments before with
           the Lieutenant Colonel, sir. You shouldn’t
           excuse him. It’s not a basis for any
           challenge for cause.

The military judge then asked defense counsel about MSgt

Buckham’s visual emotional reaction during voir dire.     Defense

counsel responded:

           Sir, there’s no substantial doubt as to if
           he’s sitting on the court as a member as to
           legality, fairness and impartiality, and
           that’s what R.C.M. 912 says as a basis for a
           challenge. He simply was somewhat emotional
           realizing it’s going to be an important
           decision but in no way -- no which prohibit
           him and it’s not a basis for a challenge,
           sir.

4.   The military judge’s ruling on the Government’s challenges
     for cause

      The military judge granted the challenges for cause against

LtCol D’Ambra and MSgt Buckham.    The military judge focused his

ruling on the religious beliefs of the two challenged members:

           Based on the guidelines of R.C.M.
           912(f)(1)(N), it is my mandate as military
           judge to ensure that this court-martial be
           free from substantial doubt as to fairness
           and impartiality of the members. Applying
           this guidance based on the responses by


                                  13
United States v. Quintanilla, Nos. 05-0274/MC and 05-5001/MC

           Lieutenant Colonel D’Ambra and Master
           Sergeant Buckman . . ., the court opines
           that based on their strongly held religious
           beliefs they will have difficulty in
           considering the entire range of punishments
           in this case.

                          B.   DISCUSSION

1.   Standard of review

      We review a military judge’s decision on a challenge for

cause for a “clear abuse of discretion.”    United States v.

James, 61 M.J. 132, 138 (C.A.A.F. 2005).    An abuse of discretion

occurs if the military judge’s findings of fact are clearly

erroneous or if the decision is influenced by an erroneous view

of the law.   United States v. Gore, 60 M.J. 178, 187 (C.A.A.F.

2004).

      A “military judge’s ruling on a challenge for cause is

given great deference.”   United States v. Rolle, 53 M.J. 187,

191 (C.A.A.F. 2000) (internal quotation marks omitted).   In the

course of reviewing the military judge’s ruling on a challenge

for cause, it is “appropriate to recognize the military judge’s

superior position to evaluate the demeanor of court members.”

James, 61 M.J. at 138.

      Although we take into account the views of the Court of

Criminal Appeals on challenges for cause, we typically employ a

direct review of the ruling of the military judge.   See United

States v. Siroky, 44 M.J. 394, 399 (C.A.A.F. 1996); James, 61



                                 14
United States v. Quintanilla, Nos. 05-0274/MC and 05-5001/MC

M.J. at 139.   In that context, it is appropriate at this point

to address Certified Issues I and II, which involve two aspects

of the opinion issued by the Court of Criminal Appeals.

       Certified Issue I asks whether the court below erred in

declining to apply the standard set forth in Rolle, 53 M.J. at

191.   See Quintanilla, 60 M.J. at 859.    We answer that question

in the affirmative.   Rolle addresses the degree of deference

that should be applied by an appellate court after scrutinizing

the record.    Id. at 192-93.   The careful scrutiny that

accompanies capital cases is not incompatible with applying the

Rolle standard of review after that scrutiny has been completed.

In any case, because we are reviewing the decision of the

military judge, any error by the court below in employing a

standard of review does not affect our review.

       Certified Issue II asks whether it was appropriate for the

court below to rely on a post-trial affidavit of MSgt Buckham to

assess the validity of the ruling by the military judge on the

challenge to that member.   See Quintanilla, 60 M.J. at 861-62.

The court below did not identify any reason to depart from the

normal practice of relying on the factual information developed

in the record of trial when addressing challenges for cause.

See United States v. Vangelisti, 30 M.J. 234, 237 (C.M.A. 1990).

Accordingly, we answer the second certified question in the

affirmative.   As we noted with respect to Certified Issue I, any


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United States v. Quintanilla, Nos. 05-0274/MC and 05-5001/MC

error by the court below in this regard is immaterial to our

direct review of the decision at trial by the military judge.

2.   Standard applicable to rulings on challenges for cause

       R.C.M. 912(f)(1)(N) sets forth the applicable provision of

law.   Under the rule, a panel member shall be excused for cause

when the member should not sit “in the interest of having the

court-martial free from substantial doubt as to legality,

fairness, and impartiality.”   Id.    Under this provision, a

member who has “an inelastic opinion concerning an appropriate

sentence for the offenses charged” may be challenged.    R.C.M.

912(f)(1)(N) Discussion; James, 61 M.J. at 138.

       When the issue of an inelastic opinion arises in a capital

case with respect to the imposition of the death penalty, the

Supreme Court’s decision in Wainwright v. Witt, 469 U.S. 412

(1985), supplies the applicable legal standard.    In Wainwright,

the Supreme Court articulated the following standard for

determining whether a prospective juror could be excluded for

cause because of his or her views on capital punishment:

“whether the juror’s views would prevent or substantially impair

the performance of his duties as a juror in accordance with his

instructions and his oath.”    Id. at 424 (internal quotation

marks omitted); see also United States v. Gray, 51 M.J. 1, 31-32

(C.A.A.F. 1999).




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United States v. Quintanilla, Nos. 05-0274/MC and 05-5001/MC

3.   Review of the military judge’s ruling on MSgt Buckham

      The military judge cited MSgt Buckham’s religious beliefs

in granting the Government’s challenge.     The military judge did

not apply the standard in Wainwright or otherwise identify any

aspects of MSgt Buckham’s beliefs that would satisfy the

Wainwright standard.

      The Government suggests that we should treat the military

judge’s ruling as incorporating trial counsel’s argument that

MSgt Buckham warranted excusal because of his emotional

demeanor.   The military judge’s ruling, however, did not cite or

rely upon trial counsel’s argument, which was rebutted by the

defense, and did not address the disagreement between the

parties.

      Instead, the military judge focused erroneously on the

“religious beliefs” of MSgt Buckham.     MSgt Buckham repeatedly

emphasized that no restrictions on voting for the death penalty

flowed from his religious affiliation.     MSgt Buckham simply

noted that, as a religious person, he would pray in the course

of making an important decision.      That statement contains no

suggestion that his “religious beliefs” would preclude him from

following and applying the instructions of the military judge in

accordance with his oath as a panel member.     See James, 61 M.J.

at 138.    Accordingly, the military judge erred in granting the

Government’s causal challenge against MSgt Buckham.     In view of


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United States v. Quintanilla, Nos. 05-0274/MC and 05-5001/MC

our conclusion, we need not decide the related issue concerning

the military judge’s decision granting the prosecution’s

challenge for cause against LtCol D’Ambra.

4.   Remedy

      The lower court set aside the findings as well as the

sentence.     Quintanilla, 60 M.J. at 863, 868.   Certified Issue

III asks whether the court below erred in setting aside the

findings.     The Government contends that the appropriate remedy

would be to affirm the findings, set aside the sentence, and

authorize a rehearing on the sentence.    We review the question

of whether the remedy developed by the lower court was

appropriate for an abuse of discretion.    See United States v.

Manuel, 43 M.J. 282, 288 (C.A.A.F. 1995).

      The military judge granted the challenges at issue because

of his concerns regarding the members’ ability to impose a

certain sentence, the death penalty.    In Witherspoon v.

Illinois, 391 U.S. 510, 516-18 (1968), the Supreme Court

addressed whether the findings as well as the sentence should be

set aside when jurors were improperly excused due to their views

on the death penalty.    The Supreme Court held that only the

sentence should be reversed, stating:    “We simply cannot

conclude, either on the basis of the record now before us or as

a matter of judicial notice, that the exclusion of jurors

opposed to capital punishment results in an unrepresentative


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United States v. Quintanilla, Nos. 05-0274/MC and 05-5001/MC

jury on the issue of guilt or substantially increases the risk

of conviction.”   Id. at 517-18.    Although the Supreme Court has

subsequently modified other aspects of Witherspoon, see

Wainwright, 469 U.S. at 418-26, the Court has not altered its

view as to the appropriate remedy for improper exclusion.       See,

e.g., Gray v. Mississippi, 481 U.S. 648, 668 (1987); Adams v.

Texas, 448 U.S. 38, 51 (1980).

      Supreme Court precedents developed in cases arising outside

the military justice system are applied as precedents in the

military justice system unless distinguishable based upon unique

military justice considerations.        See, e.g., United States v.

Matthews, 16 M.J. 354, 369 (C.M.A. 1983); Article 36, UCMJ, 10

U.S.C. § 836 (2000).   The defense suggests that Witherspoon is

not applicable in the military justice system, relying on our

decision in United States v. Giles, 48 M.J. 60 (C.A.A.F. 1998).

In Giles, we set aside the findings and sentence after

concluding that the military judge abused his discretion by

denying a defense challenge for cause against a member.       Id. at

63.   Giles, however, addresses consequences that are not at

issue in the present case, related primarily to the fact that

the parties in the military justice system are limited to a

single peremptory challenge.   See id. at 62; Article 41(b),

UCMJ, 10 U.S.C. § 841(b) (2000).




                                   19
United States v. Quintanilla, Nos. 05-0274/MC and 05-5001/MC

     If a defense challenge to a panel member is denied, as in

Giles, the defense must decide whether to allow the disqualified

member to sit on the panel or to use its single peremptory

challenge against that member.   Under such circumstances, the

erroneous denial of a defense causal challenge creates a

significant burden on the statutory right of the defense to

exercise a peremptory challenge to remove a member objectionable

to the defense.   In that context, we concluded in Giles that the

appropriate remedy required reversal of the findings and the

sentence.    Id. at 63.

     Here, however, the military judge’s erroneous ruling had no

impact on the defense’s right to exercise a peremptory

challenge.   Additionally, there has been no allegation that any

of the members who sat on the panel held a bias against

Appellant or otherwise should have been disqualified.    See id.

     A departure from Witherspoon is not warranted by our

precedent or by the unique aspects of the military justice

system.   Accordingly, we reverse the lower court’s decision to

the extent that it set aside the findings as a remedy for the

military judge’s erroneous grant for the prosecution’s challenge

for cause.




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United States v. Quintanilla, Nos. 05-0274/MC and 05-5001/MC

       III.   FAILURE TO SEQUESTER WITNESSES (GRANTED ISSUE I)

       In a pretrial session pursuant to Article 39(a), UCMJ, 10

U.S.C. § 839(a) (2000), trial counsel moved to allow the widow

and brother of LtCol Kidd and the wife of LtCol Heffner to

remain in the courtroom as spectators.    Trial counsel

acknowledged that all three were likely to be called as

Government witnesses during sentencing but argued that a federal

statute allowed their presence at trial.    Despite defense

counsel’s objection under Military Rule of Evidence (M.R.E.)

615, which provides for the exclusion of witnesses at the

request of either party, the military judge allowed the three to

sit in on the trial, and they later testified during sentencing.

       In the present appeal, Appellant maintains that the failure

to sequester the witnesses was prejudicial error under M.R.E.

615.   The Government concedes that there was error but argues

that no prejudice arose from the error because the witnesses’

testimony was limited to victim impact evidence, which was not

affected by the trial proceedings.     See United States v. Spann,

51 M.J. 89, 93 (C.A.A.F. 1999) (holding that the military judge

erred by applying the federal statute instead of M.R.E. 615 but

finding no prejudice); United States v. Langston, 53 M.J. 335,

338-39 (C.A.A.F. 2000) (finding no prejudice arising from the

military judge’s failure to sequester witnesses); Article 59(a),

UCMJ, 10 U.S.C. § 859(a) (2000) (“A finding or sentence of a


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United States v. Quintanilla, Nos. 05-0274/MC and 05-5001/MC

court-martial may not be held incorrect on the ground of an

error of law unless the error materially prejudices the

substantial rights of the accused.”).

     It is not necessary to address the merits of Appellant’s

argument to determine that no additional relief can arise from

this claim.    Prejudice under M.R.E. 615 is determined by

considering whether the witness’s testimony was affected by the

trial proceedings that the witness heard.   See Langston, 53 M.J.

at 338; Spann 51 M.J. at 93.    The three witnesses at issue

testified only on sentencing.   Therefore, even if their

testimony was altered by what they heard at trial, the effect

would not have been relevant to the members’ determination of

guilt.   In view of our decision to reverse the sentence on other

grounds, we need not address the question of prejudice.



         IV.   PROSECUTORIAL MISCONDUCT (GRANTED ISSUE III)

     Appellant alleges that the findings and sentence should be

set aside as a remedy for various incidents of prosecutorial

misconduct that took place before, during, and after his trial.

Appellant claims that the lower court erred in its ruling on

this issue because, despite finding that prosecutorial

misconduct occurred, the lower court concluded that the

misconduct did not result in prejudice and declined to grant

relief on this basis.   See Quintanilla, 60 M.J. at 863-67.


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United States v. Quintanilla, Nos. 05-0274/MC and 05-5001/MC

Because we have concluded that the sentence should be set aside,

we consider this issue only with respect to findings.

     The lower court addressed the allegations of prosecutorial

misconduct “to discourage any repetition of these actions in a

rehearing.”   Id. at 863.   We agree that it was appropriate for

the lower court to comment on the conduct of Government counsel.

For the following reasons, we also agree with the conclusion of

the lower court that the actions of Government counsel did not

prejudice the findings in this case.   See United States v. Meek,

44 M.J. 1, 5 (C.A.A.F. 1996).

     Prior to trial, assistant trial counsel engaged in an ex

parte communication with the Article 32, UCMJ, 10 U.S.C. § 832

(2000), Investigation Officer.   See Quintanilla, 60 M.J. at 863.

Appellant raised this issue at trial as part of the basis for

his request to have the Article 32, UCMJ, investigation

reopened.   After hearing testimony from the Investigation

Officer and a witness to the conversation, the military judge

denied the request, stating that the conversation gave rise to

an “appearance of impropriety” but finding that the conversation

had no impact on the Article 32, UCMJ, investigation.    The lower

court found that “this conversation did not just appear to be

improper, it was improper.”   Id. at 864.   We agree, however,

with the determination of both the military judge and the lower

court that the improper conversation did not result in


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United States v. Quintanilla, Nos. 05-0274/MC and 05-5001/MC

prejudice, particularly in light of the military judge’s finding

that the conversation had no bearing on the Article 32, UCMJ,

investigation.   See United States v. Argo, 46 M.J. 454, 457, 459

(C.A.A.F. 1997).

     In a separate pretrial matter, the assistant trial counsel

sent two e-mail messages to the prospective members of the

panel.   The e-mails advised the members of the trial schedule

but were not sent to the defense.     In a post-trial lecture to a

capital litigation course at the Naval Justice School, the

assistant trial counsel explained that he wrote the e-mail with

the goal of establishing favorable opinions and trust from the

members.   Although this may demonstrate that assistant trial

counsel had a subjective ulterior motive, an objective reading

of the e-mails does not reveal this motive.    Furthermore,

considering the extent and strength of the evidence against

Appellant in this case, these e-mails would not have influenced

the members’ determination of guilt.

     During the court-martial, trial counsel testified on a

motion and then argued the motion, relying on his own testimony.

See Quintanilla, 60 M.J. at 864-65 (detailing the background of

the motion).   The lower court correctly concluded that this

amounted to a violation of the ethical rule prohibiting

attorneys from acting as both an advocate and a witness on the

same matter.   Id. at 865.   See Dep’t of the Navy, Judge Advocate


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United States v. Quintanilla, Nos. 05-0274/MC and 05-5001/MC

General Instr. 5803.1A, Professional Conduct of Attorneys

Practicing Under the Supervision of the Judge Advocate General

[hereinafter JAGINST 5803.1A], Rule 3.7(a) (July 13, 1992),

replaced by JAGINST 5803.1B (Feb. 11, 2000).     This motion,

however, was argued in an Article 39(a), UCMJ, session outside

the presence of the members, so it would not have impacted the

members’ findings.

     Appellant also points to the assistant trial counsel’s

sentencing argument, which the counsel later described as

“highly objectionable” during his post-trial lecture to the

Naval Justice School.   He engaged in tactics such as sitting on

the witness stand, screaming at Appellant, and using words such

as “bad hombre,” “animal,” and “gang-banging.”    Again, however,

this argument did not prejudice the findings because the

sentencing argument was made after the findings were entered.

     The court below noted that these problems persisted after

trial.   Quintanilla, 60 M.J. at 865.   An investigation

undertaken by the Naval Criminal Investigative Service revealed

that the trial counsel and assistant trial counsel impermissibly

withheld evidence from the evidence custodian.    Id.   Given the

post-trial timing of this conduct, however, it did not prejudice

Appellant’s court-martial.   See Article 59(a), UCMJ.

     Although we agree with the court below that there was no

prejudice, we note that the court expressly concluded that


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United States v. Quintanilla, Nos. 05-0274/MC and 05-5001/MC

Government counsel violated a number of ethical norms

promulgated by the Navy in JAGINST 5803.1A, including:    Rule

3.5a -- the prohibition against certain ex parte communications;

Rule 3.7(a) -- the prohibition against an attorney acting as an

advocate and attorney in the same case; and Rule 8.4 -- the

prohibition against an attorney engaging in illegal and

unethical conduct.   Quintanilla, 60 M.J. at 864-65.    The court

also stated that the prosecution’s sentencing argument

“violat[ed] various ethical canons.”    Id. at 866 (citing

American Bar Association Standards for Criminal Justice:

Prosecution Function and Defense Function, Standards 3-5.2, 3-

5.8(c) (3d ed. 1993)).    The court observed that Government

counsel’s “unethical conduct . . . . besmirched the military

justice system . . . .”   Id. at 867.

     The court took note of the responsibilities of the Judge

Advocate General with regard to the administration of attorney

discipline, id. at 865 n.4, but it is not clear whether the

specific matters, strongly condemned by the court as egregious,

were referred to the Judge Advocate General for review and

action.   Accordingly, we direct the Clerk of the Court to

transmit our opinion and the opinion of the court below to the

Judge Advocate General of the Navy for appropriate

consideration.




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United States v. Quintanilla, Nos. 05-0274/MC and 05-5001/MC

                          V.   CONCLUSION

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is reversed to the extent that it set aside

the findings of guilty.   The findings of guilty dismissed below

are reinstated.   The decision of the Court of Criminal Appeals

is affirmed to the extent that it set aside the sentence and

authorized a sentence rehearing.      The record of trial is

returned to the Judge Advocate General of the Navy for remand to

an appropriate convening authority for a sentence rehearing.

Thereafter, Articles 66(c) and 67(c), UCMJ, 10 U.S.C. §§ 866(c),

867(c) (2000), will apply.




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