                       UNITED STATES, Appellee

                                    v.

             Michael V. MARTINEZ, Airman First Class
                    U.S. Air Force, Appellant

                              No. 08-0375

                        Crim. App. No. S31080

       United States Court of Appeals for the Armed Forces

                      Decided November 13, 2008

                               PER CURIAM


                                 Counsel

For Appellant: Lieutenant Colonel Mark R. Strickland and
Captain Griffin S. Dunham (on brief).

For Appellee: Colonel Gerald R. Bruce, Major Donna S. Rueppell,
and Major Jeremy S. Weber (on brief).

Military Judge:   James B. Roan


       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Martinez, No. 08-0375/AF


   PER CURIAM:

   In accordance with his pleas, Appellant was convicted at a

court-martial of one specification of drug use in violation of

Article 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C.

§ 912a (2000).   The adjudged and approved sentence included a

bad-conduct discharge, confinement for ninety days, partial

forfeitures, and reduction to E-1.     Following a decision by the

United States Air Force Court of Criminal Appeals affirming the

findings and the sentence, Appellant petitioned for review at

this Court.   United States v. Martinez, No. ACM S31080, 2008 CCA

LEXIS 9, 2008 WL 179274 (A.F. Ct. Crim. App. Jan. 2, 2008) (per

curiam).   On consideration of the petition for grant of review

of the decision of the Court of Criminal Appeals, we grant the

petition on the following issue:

   WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE
   DENIED APPELLANT’S CHALLENGE FOR CAUSE AGAINST A MEMBER WHO
   STATED THAT A SENTENCE TO NO PUNISHMENT WAS NOT AN OPTION AND
   THAT “THERE’S NO ROOM IN MY AIR FORCE FOR PEOPLE [WHO] ABUSE
   DRUGS.”

Upon consideration of the granted issue, the decision of the

Court of Criminal Appeals is reversed.

     The record reflects that after Appellant’s guilty plea to a

single specification of drug use was accepted, the following

responses were elicited from the president of the court-martial

during voir dire for sentencing:




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         DC: Does anyone on the panel hold a moral or maybe a
         philosophical or perhaps a religious belief against
         drug use so much that they would be biased against
         [Appellant] in coming to a sentence today?

         [The members indicated a negative response.]

         DC:   That’s a negative response from all members.

         DC: I guess –- Colonel Donovan –- I sensed a little
         bit of hesitation. I don’t want my question to be
         confusing, so I just want to clarify with you that
         you wouldn’t have any moral or philosophical or
         religious conviction.

         MBR (Lieutenant Colonel Donovan): No -- just as an
         ex-squadron commander -– former squadron commander -–
         I mean -– my guideline has always been that there’s
         no room in my Air Force for people that abuse drugs -
         – you know -– violate the articles and laws that we
         have set forth.

Later on during general voir dire, defense counsel explained

that the sentencing worksheet would include “no punishment” as

an option in Appellant’s case.     Defense counsel asked Lieutenant

Colonel (Lt Col) Donovan, “I’m just kind of throwing this out

there -– just to see what your thoughts on it are -– but is no

punishment an option for you to consider in a case such as

this?”    Lt Col Donovan responded, “[n]o,” and explained,

“[Appellant] used the drug.     He admitted he used it.   He

obviously knew it was wrong and came forward with his guilt, and

there has to be punishment for it.”     Defense counsel countered,

“So, [no punishment] couldn’t be a consideration?”      Lt Col

Donovan responded, “No.”     The military judge then explained:




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      You don’t have to come to a decision in your mind -–
      after you’ve deliberated -– to no punishment based on
      this question. Legally, the only thing you have to
      do is be able to consider it as an option -– to weigh
      it against the evidence and the law and instructions
      as I give them to you -– to be willing to say that -–
      I will consider whether no punishment is appropriate
      in this case. Whether you ultimately come out with
      that decision is completely up to you -– it’s just -–
      I need to know whether you are so predisposed that -–
      I will consider nothing in the possibility of no
      punishment -– that you can’t sit impartially in this
      trial. You may ultimately decide -– in your own mind
      -– that no punishment is not appropriate -– if that’s
      what you think is the right answer -– but I just need
      to know whether you will or will not consider the
      evidence -– and consider the possibility of no
      punishment.

            . . . .

      It’s an open-mind issue.

When asked whether he could maintain an open mind on considering

no punishment as an option, Lt Col Donovan agreed, “Yes, I can

do that.”

     During individual voir dire of Lt Col Donovan, the

following exchange took place between the military judge and Lt

Col Donovan:

      MJ: I believe you said -– in response to a question
      that was asked of you by counsel -– you said
      something to the effect of -– no room for people in
      the Air Force -– or -– there was no room in the Air
      Force for people who may have used drugs?

      MBR: In my Air Force -– is what I believed I
      answered.

      MJ: In your Air Force -– okay. Again, as I’ve
      mentioned before -– a couple of times now -– one area
      that I can’t allow a member to sit on is if they have


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         that inelastic predisposition, so if you’ve already
         made up your mind that -– because [Appellant] was
         convicted of using meth, which, in fact, has
         happened, that he automatically must be discharged
         from the Air Force because you don’t have room in the
         Air Force for that type of conduct, I need to know
         about it -–

         MBR:   All right, sir.

         MJ: -- so, is that the case? Have you already made
         up your mind that he must automatically be
         discharged?

         MBR: No, I think -– what I -– what I was probably
         more alluding to in my response on that was -– more
         of -– okay -– he’s guilty -– I mean -– he’s done it -
         – all right? So, there has to be a punishment to fit
         the crime -– whatever that case may be. Now, he’s
         guilty to his use -– hear all the evidence -– and
         we’ll weigh it from no punishment to the max. I can
         do that, but something has to be done. We’re going
         through the process, so that’s the part that has to
         be done, and -– I guess -– that was more where my
         response was being directed.

The defense challenge of this member for cause was denied.

        In denying the challenge, the military judge did not

indicate whether or not he had considered the issue of implied

bias.    Consistent with our cases dealing with implied bias and

the liberal grant mandate, we hold that the military judge

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

United States v. Leonard, 63 M.J. 398 (C.A.A.F. 2006); United

States v. Strand, 59 M.J. 455 (C.A.A.F. 2004); United States v.

Downing, 56 M.J. 419 (C.A.A.F. 2002); United States v. Rome, 47

M.J. 467 (C.A.A.F. 1998).     “[I]n close cases military judges are

enjoined to liberally grant challenges for cause.”    Clay, 64


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M.J. at 277.   The issue is whether Lt Col Donovan possessed an

inelastic attitude with respect to punishment, including with

respect to whether Appellant should be punitively discharged

from the service.

     An accused is entitled to a fair and impartial panel of

members.   United States v. James, 61 M.J. 132, 138 (C.A.A.F.

2004) (quoting Strand, 59 M.J. at 458).    Consistent with that

enjoinder, the accused is entitled to have his case heard by

members who are not predisposed or committed to a particular

punishment, or who do not possess an inelastic attitude toward

the punitive outcome.   Id. (citing Rule for Courts-Martial

(R.C.M.) 912 Discussion).

     On the one hand, Lt Col Donovan expressed what appeared to

be an inelastic attitude with respect to Appellant’s punitive

discharge from the service when he said, “there’s no room in my

Air Force for people that abuse drugs -– you know -– violate the

articles and laws that we have set forth.”   Upon further

questioning by the military judge, Lt Col Donovan also said,

“So, there has to be a punishment to fit the crime.”

     On the other hand, the military judge questioned Lt Col

Donovan during individual voir dire and probed his views.

“Again, as I’ve mentioned before -– a couple of times now -– one

area that I can’t allow a member to sit on is if they have that

inelastic predisposition . . . .”    In response, Lt Col Donovan


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stated:   “All right, sir.”   Moreover, when the military judge

asked, “Have you already made up your mind that he must

automatically be discharged?”, Lt Col Donovan responded, “No.”

Lt Col Donovan also stated that he could keep an open mind on

whether to discharge Appellant.

     However, the problem with this second line of argument is

that the rehabilitation of Lt Col Donovan fell short.   First, Lt

Col Donovan’s responses to the military judge were qualified, if

not hesitant.   More importantly, while he may have disavowed an

inelastic attitude toward a punitive discharge, he did not

disavow an inelastic attitude toward punishment.   To the

contrary, given repeated opportunities to do so, Lt Col Donovan

said, “So, there has to be a punishment to fit the crime -–

whatever that case may be. . . . [W]e’ll weigh it from no

punishment to the max.   I can do that, but something has to be

done.”

     Lt Col Donovan’s views went directly to the issue of what

sentence, if any, should be imposed on Appellant, in a case

involving a single specification of use of methamphetamines.

His response was qualified and inelastic as to the necessity of

some punishment.   These responses, combined with the fact that

Lt Col Donovan was the senior member of the panel, in our view,

would lead an objective observer to question whether Appellant

received a fair sentencing hearing.   In turn, we are left with


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substantial doubt as to the fairness or impartiality of the

member in question and conclude that the military judge abused

his discretion in not granting the challenge for cause.∗

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed as to the findings but is reversed

as to the sentence.   The sentence is set aside and the record of

trial is returned to the Judge Advocate General of the Air

Force.   A rehearing on sentence may be ordered.




*
  As a result, we need not and do not address the question of
actual bias.

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