                         UNITED STATES, Appellee

                                         v.

                  William C. BRAGG, Staff Sergeant
                    U.S. Marine Corps, Appellant

                                  No. 07-0382

                        Crim. App. No. 200600228

       United States Court of Appeals for the Armed Forces

                        Argued February 26, 2008

                           Decided May 27, 2008

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


                                     Counsel


For Appellant: Major Brian L. Jackson, USMC (argued);
Lieutenant Commander Ricardo A. Berry, JAGC, USNR.


For Appellee: Colonel Louis J. Puleo, USMC (argued); Captain
Geoffrey S. Shows, USMC, and Commander Paul C. LeBlanc, JAGC,
USN.



Military Judge:    R. S. Chester



            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Bragg, No. 07-0382/MC


     Judge BAKER delivered the opinion of the Court.

     Appellant was tried by a general court-martial convened

with members at Marine Corps Recruit Depot, San Diego,

California.   Contrary to his pleas, he was found guilty of

violating a lawful general order, rape, indecent assault,

indecent language, and adultery, all in violation of Articles

92, 120, and 134, Uniform Code of Military Justice (UCMJ), 10

U.S.C. §§ 892, 920, 934 (2000).   The court sentenced Appellant

to a dishonorable discharge, confinement for five years,

forfeiture of all pay and allowances, and reduction to the

lowest enlisted grade.   The convening authority approved the

sentence as adjudged, but the United States Navy-Marine Corps

Court of Criminal Appeals reduced Appellant’s period of

confinement to four years, eleven months.   United States v.

Bragg, No. NMCCA 200600228, 2007 CCA LEXIS 44, at *19, 2007 WL

1704149, at *7 (N-M. Ct. Crim. App. Feb. 21, 2007)

(unpublished).   This Court granted review of the following

question:

     WHETHER THE LOWER COURT ERRED IN UPHOLDING THE MILITARY
     JUDGE’S DENIAL OF THE CHALLENGE FOR CAUSE OF LIEUTENANT
     COLONEL [W].

Based on the reasoning below, we hold that the lower court

erred.




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United States v. Bragg, No. 07-0382/MC


                            BACKGROUND

     Appellant was convicted of committing rape, and other

inappropriate acts against two female high school students while

serving as a recruiter for the United States Marine Corps.

During voir dire of the court-martial members, one member,

Lieutenant Colonel (LtCol) W, volunteered that he had learned

information about the case outside of the trial proceedings.

LtCol W stated that in his former role as the deputy assistant

chief of staff for recruiting, he “usually” read the “relief for

cause” (RFC) packages that would have been submitted for any

recruiters accused of misconduct under his jurisdiction.   While

he lacked specific memory of most of the particulars of the

case, LtCol W was able to recall several facts, including the

nature of the offense, the general identity of the victim, and

investigatory measures undertaken by the police.   LtCol W stated

that he was unsure whether he had gained his knowledge of the

case through reading the RFC packet or through reading the

newspaper.   However, after recalling what he knew of the case,

he later stated, “[s]o, based off that, I believe I read the

investigation as opposed to reading the newspaper accounts and

all that kind of stuff.”

     When asked whether he would have made a recommendation on

the case, LtCol W equivocated, then stated, “I probably would

have recommended relief if it had come up in front of me.”


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United States v. Bragg, No. 07-0382/MC


LtCol W also stated that he would have read any RFC packets

submitted before July 17, 2003.   The offenses at issue in this

case were committed between April 3, 2003, and April 10, 2003,

and charges were preferred on May 28, 2003.    In addition to

volunteering the foregoing information, LtCol W also stated that

he could be impartial in sitting as a member of the court-

martial.

     The military judge denied defense counsel’s challenge of

LtCol W for cause, finding that LtCol W’s “answers and candor .

. . and body language” suggested that he would be impartial, and

decide the case solely on the evidence presented in court.      As a

result, defense counsel chose to exercise their peremptory

challenge against LtCol W, rather than another member,

Colonel C.

                            DISCUSSION

     An accused “has a constitutional right, as well as a

regulatory right, to a fair and impartial panel.”   United States

v. Wiesen, 56 M.J. 172, 174 (C.A.A.F. 2001).    Rule for Courts-

Martial (R.C.M.) 912(f)(1)(N) requires that a member be excused

for cause whenever it appears that the member “[s]hould not sit

as a member in the interest of having the court-martial free

from substantial doubt as to legality, fairness, and

impartiality.”   See United States v. Miles, 58 M.J. 192, 194

(C.A.A.F. 2003).   While this rule applies to both actual and


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United States v. Bragg, No. 07-0382/MC


implied bias, “[t]he focus of this rule is on the perception or

appearance of fairness of the military justice system.”     United

States v. Dale, 42 M.J. 384, 386 (C.A.A.F. 1995).     This Court

gives the military judge “great deference when deciding whether

actual bias exists because it is a question of fact, and the

judge has observed the demeanor of the challenged member.”

United States v. Napolitano, 53 M.J. 162, 166 (C.A.A.F. 2000).

A military judge is afforded less deference when we review a

challenge for cause based on implied bias because the issue is

“objectively viewed through the eyes of the public,” id.

(citation and quotation marks omitted), “focusing on the

appearance of fairness,” United States v. Rome, 47 M.J. 467, 469

(C.A.A.F. 1998) (citation omitted).   Thus, “[i]ssues of implied

bias are reviewed under a standard less deferential than abuse

of discretion but more deferential than de novo.”   Miles, 58

M.J. at 195 (citation and quotation marks omitted).    However,

“[a] military judge who addresses implied bias by applying the

liberal grant mandate on the record will receive more deference

on review than one that does not.”    United States v. Clay, 64

M.J. 274, 277 (C.A.A.F. 2007).   “We do not expect record

dissertations but, rather, a clear signal that the military

judge applied the right law.   While not required, where the

military judge places on the record his analysis and application




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United States v. Bragg, No. 07-0382/MC


of the law to the facts, deference is surely warranted.”    Id.

(citation and quotation marks omitted).

     In making judgments regarding implied bias, this Court

looks at the totality of the factual circumstances.   United

States v. Strand, 59 M.J. 455, 459 (C.A.A.F. 2004).   “Implied

bias exists when, regardless of an individual member’s

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

prejudiced [i.e., biased].”   Napolitano, 53 M.J. at 167

(citation and quotation marks omitted).   In this case the member

indicated that he was aware of information about the case not

available to the other members and from a source not readily

available to others.   Moreover, LtCol W, a senior member on the

panel, suggested that prior to trial, it was likely that he

would have been in a position to recommend, and may have

recommended adverse administrative action against Appellant, for

conduct forming the basis of the charges before the court-

martial.

     The purpose of voir dire and challenges is, in part, to

ferret out facts, to make conclusions about the members’

sincerity, and to adjudicate the members’ ability to sit as part

of a fair and impartial panel.   However, the text of R.C.M. 912

is not framed in the absolutes of actual bias, but rather

addresses the appearance of fairness as well, dictating the

avoidance of situations where there will be substantial doubt as


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United States v. Bragg, No. 07-0382/MC


to fairness or impartiality.   Thus, implied bias picks up where

actual bias drops off because the facts are unknown,

unreachable, or principles of fairness nonetheless warrant

excusal.

     In the present case, for example, the military judge was

not ultimately compelled to explore the capacity of LtCol W to

recommend administrative relief in one context, yet keep an open

mind about Appellant’s conduct when applying a criminal standard

of review as a court-martial member.   Nor, in the context of

implied bias, must a military judge doubt the sincerity or

veracity of a member’s statements -– and we do not doubt LtCol

W’s integrity -- that he could evaluate the evidence with an

open mind, in order to nonetheless conclude that the member

should not sit.   In this sense, it is not always possible to

resolve facts or determine credibility and still remove the

perception of doubt as to whether a member should sit.   Implied

bias and the liberal grant mandate allow a military judge to

uphold the letter and spirit of R.C.M. 912 without at the same

time questioning a member’s statement that he can sit with an

open mind.   See United States v. Townsend, 65 M.J. 460, 463

(C.A.A.F. 2008) (implied bias determinations made “despite a

disclaimer”).

     The liberal grant mandate and principles of implied bias

also remove the necessity of reaching conclusions of fact that


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United States v. Bragg, No. 07-0382/MC


are beyond the capacity of the member to recall.   Thus, the

military judge could not determine whether or not LtCol W

actually recommended relief -- because LtCol W could not

remember if he did.    But if LtCol W believed he did, and the

facts indicated he might well have, a substantial doubt is

nonetheless raised as to fairness and impartiality.   That is

because no matter how sincere the particular member, we have

substantial doubt that it is fair for a member to sit on a panel

where that member has likely already reached a judgment as to

whether the conduct in question has occurred.   Such a conclusion

is compounded when it is likely that the same member has reached

such a conclusion based on facts contained outside the record.

     The liberal grant mandate exists for cases like this.

Here, the record reflects that LtCol W might well have

recommended relief for cause; and even if he did not, he stated

that he would have done so.   Viewed objectively, we conclude

that a member of the public would have substantial doubt that it

was fair for this member to sit on a panel where that member had

likely already reached a judgment as to whether the charged

misconduct occurred.   This perception of unfairness is

compounded when that member has likely reached such a conclusion

based on information gained prior to trial.




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United States v. Bragg, No. 07-0382/MC


                             DECISION

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is reversed and the findings and sentence

are set aside.   The record of trial is returned to the Judge

Advocate General of the Navy.   A rehearing may be ordered.




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