                       UNITED STATES, Appellee

                                   v.

                  Kirk V. BRIGGS, Technical Sergeant
                       U.S. Air Force, Appellant

                              No. 06-0178

                         Crim. App. No. 35123

       United States Court of Appeals for the Armed Forces

                       Argued October 24, 2006

                       Decided January 25, 2007

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

STUCKY and RYAN, JJ., did not participate.

                                Counsel


For Appellant: Captain Timothy M. Cox (argued); Lieutenant
Colonel Mark R. Strickland and Captain Vicki A. Belleau (on
brief).


For Appellee: Captain Daniel J. Breen (argued); Colonel Gerald
R. Bruce and Lieutenant Colonel Robert V. Combs (on brief).


Military Judge:    Bryan T. Wheeler


       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION
United States v. Briggs, No. 06-0178/AF


        Judge BAKER delivered the opinion of the Court.

        Appellant was tried by general court-martial consisting of

officer members.    Contrary to his pleas, Appellant was convicted

of four specifications of selling military property and one

specification of larceny on divers occasions, in violation of

Articles 108 and 121, Uniform Code of Military Justice (UCMJ),

10 U.S.C. §§ 908, 921 (2000), respectively.    The adjudged

sentence included a dishonorable discharge, forfeiture of all

pay and allowances, confinement for five years, and reduction to

E-1.    The convening authority approved the adjudged sentence,

and waived forfeitures pursuant to Article 58b(b), UCMJ, 10

U.S.C. § 858b(b) (2000).    The court below affirmed.

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

issue:

        WHETHER THE MILITARY JUDGE ERRED IN DENYING APPELLANT’S
        CHALLENGE FOR CAUSE AGAINST CAPTAIN H.

                              BACKGROUND

        Appellant was an electro-environmental technician whose

duties involved maintaining C-5 aircraft at Travis Air Force

Base.    He was accused of stealing and later re-selling survival

vests from the aircraft he was responsible for maintaining.

        Captain (Capt) H, the wife of Appellant’s flight commander,

was detailed to serve as a court member at Appellant’s court-

martial.    Capt H raised her hand when asked whether she had



                                   2
United States v. Briggs, No. 06-0178/AF


prior knowledge of the case.    On voir dire, Capt H stated that

she had learned from her husband that “vests went missing and

that the person or a person -- I didn’t know who -- was put on

desk duty.”    Upon further questioning, Capt H stated that she

did not know any additional details about the case, and that her

husband was deployed to Kuwait at the time of the trial.

        Appellant challenged Capt H for cause, arguing that there

would be an appearance of unfairness if the wife of Appellant’s

commanding officer were allowed to sit on Appellant’s court-

martial.    The military judge denied Appellant’s challenge,

noting that Capt H “wasn’t aware precisely of which flight the

person was in” and since Capt H’s husband was currently deployed

to Kuwait there would be little chance for them to discuss the

case.    The military judge further concluded that Capt H

“appeared to be quite sincere and listened quite attentively as

I instructed her on what she could consider” and that

“regardless of whether she had a discussion with her husband . .

. there is going to be evidence presented that vests were

missing from one of the flights on this base.”    Appellant

preserved this issue on appeal by using his sole peremptory

challenge against another member of the panel.    Rule for Courts-

Martial (R.C.M.) 912(f)(4).




                                   3
United States v. Briggs, No. 06-0178/AF


                              DISCUSSION

     R.C.M. 912(f)(1)(N) requires removal for cause when a court

member should not sit “in the interest of having the court-

martial free from substantial doubt as to legality, fairness and

impartiality.”   R.C.M. 912 (f)(1)(N) encompasses both actual and

implied bias.    United States v. Strand, 59 M.J. 455, 458

(C.A.A.F. 2004).   The concepts of actual and implied bias are

“separate legal tests, not separate grounds for challenge.”

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

Because a challenge based on actual bias is “essentially one of

credibility,” and because “the military judge has an opportunity

to observe the demeanor of court members and assess their

credibility on voir dire,” a military judge’s ruling on actual

bias is afforded deference.    United States v. Daulton, 45 M.J.

212, 217 (C.A.A.F. 1996) (citations and quotation marks

omitted).   However, 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).   Implied bias

exists when, “regardless of an individual member’s disclaimer of

bias, most people in the same position would be prejudiced [that

is, biased].”    United States v. Napolitano, 53 M.J. 162, 167

(C.A.A.F. 2000).   Since implied bias is an objective standard, a

military judge’s ruling on implied bias, while not reviewed de

novo, is afforded less deference than a ruling on actual bias.


                                  4
United States v. Briggs, No. 06-0178/AF


Strand, 59 M.J. at 458.   However, deference is warranted only

when the military judge indicates on the record an accurate

understanding of the law and its application to the relevant

facts.   United States v. Downing, 56 M.J. 419, 422 (C.A.A.F.

2002).

     In this case, the military judge addressed Appellant’s

challenge to Capt H without expressly addressing implied bias or

the liberal grant mandate on the record.   Rather, the military

judge discussed various factors relating to Capt H’s demeanor,

her professed lack of knowledge, and her husband’s absence

during Appellant’s court-martial.    While the military judge’s

analysis made it clear that he found no actual bias, we do not

know what, if any, reasoning prompted him to deny a challenge

predicated on implied bias.   In United States v. Clay, 64 M.J.

__ (6-8) (C.A.A.F. 2007), we stated:

     [I]n light of the role of the convening authority in
     selecting courts-martial members and the limit of one
     peremptory challenge per side, military judges are enjoined
     to be liberal in granting defense challenges for cause.
     Challenges based on implied bias and the liberal grant
     mandate address historic concerns about the real and
     perceived potential for command influence on members’
     deliberations.

     . . . .

          In short, the liberal grant mandate is part of the
     fabric of military law. The mandate recognizes that the
     trial judiciary has the primary responsibility of
     preventing both the reality and the appearance of bias
     involving potential court members.



                                 5
United States v. Briggs, No. 06-0178/AF


     Applying the standard for implied bias, we conclude that

the military judge erred when he denied the challenge for cause

against Capt H.    It is true that Capt H’s responses did not

reflect actual bias against Appellant.    Among other things, Capt

H disclaimed prior knowledge of the case beyond the fact that

some “vests went missing.”

     However, there are a number of factors that necessitated

dismissing Capt H from the panel.1    First, her husband was a

member of the squadron whose members’ safety might have been

implicated by the theft.   The military judge was aware of the

safety concerns.   Immediately before the questioning of Capt H,

two other members had expressed the view that the thefts could

have affected mission safety.   Second, Capt H was married to

Appellant’s flight commander, whose performance evaluation could

be affected by criminal conduct regarding critical squadron

equipment that was supposed to be safeguarded in a secure area.

Third, in military practice, the immediate commander is often

responsible for the initial inquiry into potential misconduct

occurring within his command and the initial decision as to

disposition.   See R.C.M. 301; R.C.M. 303; R.C.M. 306.   Moreover,


1
  “Although military or national security exigencies may create
personnel circumstances relevant to the liberal grant analysis,
there is no indication in the record that this was the reason
for the military judge’s denial of Appellant’s challenge for
cause.” Clay, 64 M.J. at ___ (11, n.2).



                                  6
United States v. Briggs, No. 06-0178/AF


if the immediate commander lacks the authority to dispose of the

matter at his level, he forwards the matter to a superior.

R.C.M. 306.   The intent of the drafters of the UCMJ was to

“prevent courts martial from being an instrumentality and agency

to express the will of the commander,”2 or to appear to be such

an instrumentality.   The decision to retain Capt H, the spouse

of Appellant’s immediate commander, unnecessarily raised the

perception of improper command bias.     For these reasons, we

conclude that the military judge erred by denying the challenge

for cause against Capt H, the spouse of Appellant’s commander

whose safety might have been affected by the alleged theft, on

the ground of implied bias.

                              DECISION

     The decision of the United States Air Force 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 Air Force.    A rehearing may be

authorized.




2
  Uniform Code of Military Justice: Hearings on H.R. 2498 Before
a Subcommittee of the House Committee on Armed Services, 81st
Cong. 606 (1949) (statement of Professor Edmund M. Morgan Jr.),
reprinted in Index and Legislative History, Uniform Code of
Military Justice (1950) (not separately paginated).

                                  7
