                          UNITED STATES, Appellee

                                         v.

                    Michael D. STRAND, Corporal
               United States Marine Corps, Appellant

                                   No. 03-0557
                         Crim. App. No. 200000275

    United States Court of Appeals for the Armed Forces

                          Argued January 14, 2004

                            Decided May 10, 2004

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

                                      Counsel


For Appellant:        Lieutenant Colonel Eric B. Stone, USMC
(argued).


For Appellee: Lieutenant Frank L. Gatto, JAGC, USNR
(argued); Commander Robert P. Taishoff, JAGC, USN (on
brief); Lieutenant Colonel John F. Kennedy, USMC.


Military Judge:        R. W. Redcliff



     THIS   OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Strand, No. 03-0557/MC


    Judge BAKER delivered the opinion of the Court.

    Appellant was tried by a general court-martial composed

of officer and enlisted members.      Pursuant to his mixed

pleas, Appellant was convicted of one specification of

assault consummated by a battery and three specifications

of adultery in violation of Articles 128 and 134, Uniform

Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§

928 and 934 (2000), respectively.      He was sentenced to a

bad-conduct discharge, confinement for thirty months, total

forfeiture of all pay and allowances, and reduction to the

lowest enlisted grade.     The convening authority approved

the sentence as adjudged, but in an act of clemency

suspended confinement in excess of 24 months for a period

of six months from the date of his action, and purported to

waive the “automatic reduction” and the automatic

forfeitures for a period of six months.1       The Navy-Marine

Corps Court of Criminal Appeals affirmed the findings of

guilty and the sentence in an unpublished opinion.        United

States v. Strand, NMCM 200000275 (N-M. Ct. Crim. App.

2002).

     This Court granted review of the following issue:



1
  We note that the convening authority’s action erroneously uses the
word “waived” with respect to the reduction for six months.        A
corrected action should be issued.



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United States v. Strand, No. 03-0557/MC


       WHETHER THE LOWER COURT ERRED IN HOLDING THAT
       THE MILITARY JUDGE DID NOT HAVE AN
       AFFIRMATIVE DUTY TO SUA SPONTE REMOVE THE
       SENIOR OFFICER OF THE PANEL FOR IMPLIED BIAS
       BECAUSE HE WAS THE SON OF THE CONVENING
       AUTHORITY.

     Based on the totality of the circumstances particular

to this case, we hold that the military judge did not abuse

his discretion, and therefore the lower court did not err.

                             FACTS

     Appellant, a 26-year-old corporal with approximately

eight years of service, was charged with multiple incidents

of sexual misconduct.   The majority of these incidents

occurred on base.    Although Appellant was married, he

engaged in sexual intercourse with some of the wives of his

fellow Marines as well as a subordinate Marine assigned to

his unit.   Various members of Appellant’s unit were aware

of his misconduct.

     On October 15, 1998, the Commanding General of Marine

Corps Base Hawaii, Kaneohe Bay, Brigadier General (BGen)

Fields, signed convening order number 5-98 which convened a

general court-martial “to try such persons as may be

brought before it.”   First Lieutenant (1stLt) M. L. Olson,

Jr., was one of the ten officer members originally detailed

to this court-martial panel.   On December 28, Appellant’s

case was referred to trial under convening order 5-98.    On



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United States v. Strand, No. 03-0557/MC


February 25, 1999, however, the convening order was

modified due to Appellant's written request for enlisted

members.   As a result, eight of the original ten officers

detailed to the court-martial were relieved leaving only

Major (Maj) J. R. Armour and 1stLt Olson.    The modified

convening order was signed by “M. L. Olson, U.S. Marine

Corps, Commander.”   Colonel (Col) Olson was serving as the

acting commander at the time and is the father of 1stLt

Olson.

     1stLt Olson’s court-martial member questionnaire

identified him as a 26-year old supply officer with two

years and 10 months of active duty service.   It also

indicated that he had not previously served on a court-

martial.   In response to the question “What are/were your

parent’s . . . occupations?”, 1stLt Olson wrote of his

father “USMC active duty.”

     During voir dire, the military judge asked prospective

panel members whether they knew “the convening authority in

this case, Commander, Marine Corps Base Hawaii,

specifically, Brigadier General Fields or in his absence

Colonel Olson?”   The military judge received positive

responses from all the members except one.    Individual voir

dire followed.




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United States v. Strand, No. 03-0557/MC


     At the close, of 1stLt Olson’s voir dire, trial

counsel inquired regarding his relationship with the

convening authority.   The following dialogue occurred.

       TC: Sir, there was actually one other
       question. The relationship between the
       convening authority and the member.

       MJ: With regard to reporting seniors?

       TC: No, sir.    Actually --

       MJ: Oh, Colonel Olson?       Are you related to
       Colonel Olson?

       MBR: (1stLt Olson)   Yes, sir.     He's my
       father, sir.

       MJ: He's your dad?

       MBR: (1stLt Olson) Yes, sir.

       MJ: Okay. Well, thank you for bringing that
       out. Have you had any discussions with the
       Colonel about this case?

       MBR: (1stLt Olson) No, sir.

       MJ: Has he ever discussed his views on
       military justice with you?

       MBR: (1stLt Olson) Not that I can remember,
       sir. I'm sure we've had conversations in the
       past, but nothing that comes to mind.

       MJ: Any conversations with regard to the
       nature of these allegations that he's had
       with you?

       MBR: (1stLt Olson) No, sir.

       MJ: I gather you have frequent interaction
       with him?

       MBR: (1stLt Olson) Yes, sir.


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United States v. Strand, No. 03-0557/MC


       MJ: Does he know you have been detailed?    I
       gather he does know, since he signed the
       convening order.

       MBR: (1stLt Olson) Yes, sir.

       MJ: No discussions at all about assigning you
       to this court-martial?

       MBR: (1stLt Olson) No, sir.

       MJ: Do you feel that his assignment of you to
       this court-martial in any way is reflective
       of how he feels this case ought to come out?

       MBR: (1stLt Olson) No, sir.

       MJ: Do you feel that you would have a need to
       explain any of the verdicts to him?

       MBR: (1stLt Olson) No, sir.

       MJ: Further inquiry, counsel?

       TC: No, sir.

       DC: None, sir.

     At the conclusion of voir dire, defense counsel

challenged four officers for cause.    Defense counsel

challenged Maj Kelly because his father was a New York City

police officer and he challenged Maj Armour due to his

“experience as the Family Service Center Director.”      He

challenged Captain (Capt) S. on the ground that Capt S’s

spouse had been the victim of a rape.   Finally, defense

counsel challenged Chief Warrant Officer 3 (CWO3) Gandy for

cause on account of his service as personnel officer with

Combat Service Support Group 3 since this service may have


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United States v. Strand, No. 03-0557/MC


exposed him to allegations involving a potential witness in

the case.    After hearing argument from both sides regarding

each challenge, the military judge granted defense

counsel’s challenges to Maj. Armour, Capt S, and CWO3

Gandy, but denied his challenge to Maj Kelly.    Defense

Counsel subsequently used his peremptory challenge against

Maj Kelly.   At no point throughout this entire process did

defense counsel seek to challenge 1stLt Olson.

     Nonetheless, after defense counsel had completed his

challenges, trial counsel once again raised concern

regarding 1stLt Olson’s presence with the military judge.

The record reflects the following dialogue:

       TC: . . . Sir, just one final matter. As a
       matter of record, the First Lieutenant who is
       the son of the convening authority, I didn't
       know if the military judge wanted to --

       MJ: Well, neither side challenged for cause
       or peremptorily First Lieutenant Olson --

       TC: Aye, aye, sir.

       MJ: -- so I see no need to make further
       findings as to that matter. His answers were
       fairly -- quite clear and direct on
       individual voir dire.

       DC: Sir, can we have one moment?

       MJ: Certainly.

       [Accused and counsel conferred.]

       MJ: Do you wish a recess outside of our
       presence?


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United States v. Strand, No. 03-0557/MC



       DC: No, sir, that's okay.

       [Accused and counsel conferred further.]

       TC: Sir, the government requests a brief
       recess.

       MJ: Very well.   Court is in recess until 1500
       hours.

       [The court recessed at 1450, 8 March 1999.]

       [The court was called to order at 1504, 8
       March 1999.]

       MJ: The court will come to order. Let the
       record reflect that all parties who were
       present prior to the court's last recess are
       once again present before the court. The
       members are still absent.

       Counsel, we were completing the challenge
       process. Is there anything further for the
       court before we have the members return and
       excuse the members who have been excused?

       TC:   No, sir.

       DC:   No, sir.


     1stLt Olson was the only commissioned officer who

remained on the panel after the challenges, therefore, he

was designated president of the panel.    The remainder of

the panel was comprised of a master gunnery sergeant (E-9),

three master sergeants (E-8), and a gunnery sergeant (E-7).

Col Olson was the reviewing officer for at least one member

of the panel.   As stated above, Appellant was subsequently

convicted of certain offenses on March 11, 1999.   After


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United States v. Strand, No. 03-0557/MC


trial, defense counsel submitted matters pursuant to Rule

for Courts-Martial 1105 [hereinafter R.C.M.] to the

convening authority, but did not raise the issue of 1stLt

Olson’s membership on the panel or otherwise seek relief on

account of the panel’s membership.   BGen Fields took action

on Appellant’s court-martial on January 12, 2000.   Col

Olson did not take action on the record, and is not

otherwise identified in the record or by the parties as

having taken any further action in regard to Appellant’s

court-martial other than signing his October 15 order

modifying the original court-martial panel.

     Appellant now argues on appeal that it was plain error

for the military judge to permit the son of the acting

convening authority to sit as president of this court-

martial.   In light of R.C.M. 912 and the doctrine of

implied bias, Appellant argues that the judge had a duty to

sua sponte excuse 1stLt Olson in the interest of

maintaining public confidence in the legality, fairness,

and impartiality of the military justice system.    In

support of this argument, Appellant suggests that 1stLt

Olson’s presence could have chilled the deliberations of

the senior enlisted members of the panel by suggesting that

the command was particularly interested in the outcome of




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United States v. Strand, No. 03-0557/MC


this case and out of concern that 1stLt Olson might report

to his father on their views in deliberation.

     The Government in turn argues that Appellant

affirmatively waived any implied bias objection to 1stLt

Olson.   Alternatively, the Government argues the judge did

not commit plain error because there is no per se rule

against members sitting who have familial relationships

with the convening authority.    Finally, the Government

contends that 1stLt Olson’s relationship was fully

disclosed and Appellant has not demonstrated circumstances

that would otherwise warrant invocation of the doctrine of

implied bias.



                          DISCUSSION

     This Court has held that 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).       Thus, “Rule for Courts-

Martial 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.’”    United States v. Miles, 58

M.J. 192, 194 (C.A.A.F. 2003).       While this rule applies to


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United States v. Strand, No. 03-0557/MC


both actual and implied bias, the thrust of this rule is

implied bias.   United States v. Minyard, 46 M.J. 229, 231

(C.A.A.F. 1997).   Moreover, “the 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), since “the rule ‘reflects the President’s

concern with avoiding even the perception of bias,

predisposition, or partiality.’”    Minyard, 46 M.J. at 231

(citing United States v. Lake, 36 M.J. 317, 323 (C.M.A

1993)).

     It is clear that a military judge may excuse a member

sua sponte.   R.C.M. 912(f)(4).    The judge’s decision

whether or not to excuse a member sua sponte is

subsequently reviewed for an abuse of discretion.    United

States v. Downing, 56 M.J. 419, 422 (C.A.A.F. 2002); United

States v. Armstrong, 54 M.J. 51, 53 (C.A.A.F. 2000).      This

Court has given 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).     See United States v.

Warden, 51 M.J. 78, 81 (C.A.A.F. 1999).     This Court,

however, gives less deference to the military judge when

reviewing a “finding on implied bias because it is


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United States v. Strand, No. 03-0557/MC


objectively ‘viewed through the eyes of the public.’”

Napolitano, 53 M.J. at 166 (quoting Warden, 51 M.J. at 81).

“Implied bias is viewed through the eyes of the public,

focusing on the appearance of fairness.”    United States v.

Rome, 47 M.J. 467, 469 (C.A.A.F. 1998).     As a result, an

objective standard is used when reviewing the judge’s

decision regarding implied bias.

     Thus, “issues 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 (citing

Downing, 56 M.J. at 422)(citations omitted).     This Court

has generally found that “when there is no actual bias,

‘implied bias should be invoked rarely.’”    Warden, 51 M.J.

at 81-82.   “[D]ue process does not require a new trial

every time a juror has been placed in a potentially

compromising situation.”   United States v. Lavender, 46

M.J. 485, 488 (C.A.A.F. 1997)(quoting Smith v. Phillips,

455 U.S. 209, 217 (1982)).   Instead, this Court has

observed that “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 (citations omitted).     In making

judgments regarding implied bias, this Court looks at the

totality of the factual circumstances.


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United States v. Strand, No. 03-0557/MC


     This case offers facts of clarity and consequence on

both sides of the implied bias equation.   On the one hand,

1stLt Olson was the son of the acting convening authority

who signed an order relieving eight officers from serving

on Appellant’s panel while leaving only his son and one

other officer from an original list of ten.    This was done

without explanation in the record.   Further, the case at

hand involved multiple instances of sexual misconduct by

Appellant with the on-base dependents of Marines.   While

the base chief of staff would surely take interest in

matters of military justice, arguably he would take

particular interest in a case involving multiple instances

of on base misconduct detrimental to morale.

     1stLt Olson was also the only commissioned officer who

served on Appellant’s panel.   As a result, he served as the

president of the panel and not just as a member.    Based on

these facts, Appellant argues an outside observer might

conclude that the senior enlisted members would feel an

implicit command presence in the deliberation room in the

form of the chief of staff/qua acting convening authority’s

son’s presence.   Finally, the Government was concerned

enough about the appearance issue to twice affirmatively

inquire of the military judge whether 1stLt Olson should be

excused from the panel.


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United States v. Strand, No. 03-0557/MC


     On the other hand, defense counsel apparently did not

share trial counsel’s concerns.     Defense counsel did not

challenge 1stLt Olson for cause, nor did counsel use his

peremptory challenge against 1stLt Olson or state that he

would have done so if he had not first used it against Maj

Kelly.   Moreover, the record reflects that defense counsel

was aggressive in his use of challenges.    Among other

things, he challenged Maj Kelly on the ground that his

father was a police officer.

     This is not a case where the salient fact went

unnoticed or unexamined on the record.    Defense counsel had

a number of opportunities to reflect on his position and to

challenge 1stLt Olson.   During the challenge process, trial

counsel once again mentioned the relationship between Col

Olson and 1stLt Olson.   Defense counsel appeared to discuss

the situation with his client and after a brief recess did

not challenge the member.

     Defense counsel might well have had tactical reasons

for not challenging 1stLt Olson’s presence on the panel.

Nonetheless, the question remains whether based on the

totality of the circumstances identified above, the

military judge should have dismissed 1stLt Olson sua sponte

in order to ensure public confidence in the legality,

fairness, and impartiality of Appellant’s court-martial.


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United States v. Strand, No. 03-0557/MC


See United States v. Velez, 48 M.J. 220, 225 (C.A.A.F.

1998).

     Based on the particular facts here, we think not.     It

is noteworthy that the convening authority did not remove

his own son from Appellant’s court-martial while relieving

eight other officers from this duty, but Appellant has not

challenged the selection of members on Article 25, UCMJ, 10

U.S.C. § 825 (2000) grounds.   Ultimately, however, we are

satisfied that the transparent nature of the military

judge’s inquiry with Appellant and his counsel present,

along with the deliberate manner of the military judge’s

voir dire, afforded counsel ample opportunity to explore

any potential concerns regarding 1stLt Olson’s presence on

the panel.   Further, defense counsel’s demonstrated

capability to identify matters of potential conflict

regarding other members along with his ample use of the

challenge mechanism removes concern that counsel “was

asleep at the switch.”   It also would seem to address

Appellant’s argument that defense counsel may have been

hesitant to challenge the acting convening authority’s son.

     Further, Appellant has not made a showing of actual

bias, nor argued that 1stLt Olson’s familial relationship,

in fact, influenced the panel’s deliberations.   First,

1stLt Olson stated on the record that he had not discussed


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United States v. Strand, No. 03-0557/MC


the case with his father and would not feel a need to

explain any of the verdicts to his father.     Second,

Appellant suggests that the senior enlisted members on

Appellant’s panel may have felt pressure to uphold the

command’s charging decision in light of 1stLt Olson’s

presence, but Appellant has not offered any persuasive

evidence of actual bias.    Appellant is correct that

disclaimers of bias, or the absence of actual bias, are not

dispositive with regard to implied bias, which is viewed

through the eyes of the public.      Nonetheless, a “member’s

unequivocal statement of a lack of bias can . . . carry

weight” when considering the application of implied bias.

United States v. Youngblood, 47 M.J. 338, 341 (C.A.A.F.

1997)(citations omitted).



                            DECISION

     Based on the totality of these circumstances, we hold

that 1stLt Olson’s service as president of Appellant’s

court-martial did not raise a significant question of

legality, fairness, impartiality, to the public observer

pursuant to the doctrine of implied bias.     Thus, given the

circumstances present in this case, the military judge did

not abuse his discretion by not exercising his authority to

remove the member sua sponte.    Since the judge did not


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United States v. Strand, No. 03-0557/MC


abuse his discretion, there was no plain error.   The

decision of the United States Navy-Marine Corps Court of

Criminal Appeals is affirmed.




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