                       UNITED STATES, Appellant

                                    v.

                   Ray A. VAZQUEZ, Staff Sergeant
                      U.S. Air Force, Appellee

                              No. 12-5002

                         Crim. App. No. 37563

       United States Court of Appeals for the Armed Forces

                       Argued October 24, 2012

                        Decided March 4, 2013

RYAN, J., delivered the opinion of the Court, in which ERDMANN,
J., and EFFRON, S.J., joined. BAKER, C.J., and STUCKY, J., each
filed separate opinions concurring in the result.


                                 Counsel

For Appellant: Captain Tyson D. Kindness (argued); Colonel Don
M. Christensen, Lieutenant Colonel Linell A. Letendre, Major
Scott C. Jansen, Gerald R. Bruce, Esq. (on brief).

For Appellee: William E. Cassara, Esq. (argued); Captain Nathan
A. White (on brief).

Military Judge:   Mark L. Allred




       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Vazquez, 12-5002/AF


     Judge RYAN delivered the opinion of the Court.

     Contrary to his pleas, a panel of officer members sitting

as a general court-martial convicted Appellee of one

specification of aggravated sexual contact with a child under

the age of 12, in violation of Article 120, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. § 920 (2006).   The adjudged

and approved sentence provided for a dishonorable discharge,

confinement for eight years, forfeitures of all pay and

allowances, reduction to Airman Basic, and a reprimand.

     On March 19, 2012, the United States Air Force Court of

Criminal Appeals (AFCCA) held that the application of Rule for

Courts-Martial (R.C.M.) 805(d)(1) to Appellee’s case violated

his “right to military due process . . . , resulting in a

fundamentally unfair trial.”   United States v. Vazquez, No. ACM

37563, slip op. at 3 (A.F. Ct. Crim. App. Mar. 19, 2012),

superseded by United States v. Vazquez, 71 M.J. 543, 544 (A.F.

Ct. Crim. App. 2012).   Concluding that the error was structural,

the AFCCA set aside the findings and sentence and dismissed the

charge against Appellee.   Id. at 14.   On April 27, 2012, the

AFCCA denied the Government’s Motion for Reconsideration En

Banc, but granted its Motion for Reconsideration before the

original panel.   United States v. Vazquez, No. ACM 37563 (A.F.

Ct. Crim. App. Apr. 27, 2012) (order granting review).    After

reconsideration, the AFCCA released an amended decision in which

                                 2
United States v. Vazquez, 12-5002/AF


it explained that it did not base its holding on a structural

error analysis, but nonetheless continued to find Appellee’s

denial of military due process per se prejudicial without

conducting plain error analysis.       Vazquez, 71 M.J. at 552.   On

certification under Article 67(a)(2), UCMJ, 10 U.S.C.

§ 867(a)(2) (2006), the Judge Advocate General of the Air Force

asked this Court to consider the following questions:

     I.   WHETHER THE AIR FORCE COURT OF CRIMINAL
          APPEALS ERRED BY HOLDING THAT APPELLEE WAS
          NOT AFFORDED A FUNDAMENTALLY FAIR TRIAL, AS
          GUARANTEED BY MILITARY DUE PROCESS AND THE
          UCMJ, WHEN TWO REPLACEMENT COURT MEMBERS
          DETAILED AFTER TRIAL ON THE MERITS HAD BEGUN
          WERE PRESENTED RECORDED EVIDENCE PREVIOUSLY
          INTRODUCED BEFORE THE MEMBERS OF THE COURT
          IN COMPLIANCE WITH ARTICLE 29, UCMJ, AND
          R.C.M. 805(d)(1);

    II.   WHETHER THE AIR FORCE COURT OF CRIMINAL
          APPEALS ERRED BY FAILING TO FIND WAIVER OR
          BY FAILING TO CONDUCT A PLAIN ERROR
          ANALYSIS; INSTEAD, THE COURT INCONGRUOUSLY
          FOUND THE ALLEGED VIOLATION OF APPELLEE’S
          RIGHT TO MILITARY DUE PROCESS WAS PER SE
          PREJUDICIAL DESPITE DECLARING THAT THE ERROR
          WAS NOT STRUCTURAL.

     Appellee has not shown that the application of Article

29(b), UCMJ, 10 U.S.C. § 829(b) (2006), and R.C.M. 805(d)(1) was

unconstitutional as applied to him, and the military judge’s

decision to proceed in accordance with the procedure set out by

Congress in Article 29(b), UCMJ, was not an abuse of discretion.

Accordingly, the AFCCA’s decision is reversed.




                                   3
United States v. Vazquez, 12-5002/AF


                              I.   FACTS

       On September 19, 2008, Petty Officer Second Class UG (PO2

UG), Appellee’s friend and former roommate, brought his

stepdaughter (AM) to Appellee’s house to visit.    On September

28, 2008, AM told her mother, Staff Sergeant DG (SSgt DG), that

while she was at Appellee’s house, Appellee made her lick his

body.    SSgt DG reported the allegation, which was investigated

by the Air Force Office of Special Investigations.

       Appellee elected to be tried by a panel of officer members.

At the start of trial, the panel consisted of five members.

After the Government’s opening statement, the panel heard

testimony from five Government witnesses -- AM, PO2 UG, Dr.

Hollander, Special Agent Ferguson, and Dr. Benedek. 1   Prior to

the testimony of SSgt DG, the Government’s last witness,

Lieutenant (Lt.) Conn, a panel member, informed the military

judge that he recognized SSgt DG after seeing her in the witness

waiting area.    Lt. Conn explained that he was a squadron section

commander and rates on SSgt DG’s boss for performance reporting

purposes.    When Lt. Conn revealed his professional association

with SSgt DG, the military judge and defense counsel conducted

voir dire, after which the military judge asked if defense



1
    AM testified remotely via live closed-circuit television
    pursuant to R.C.M. 914A and Military Rule of Evidence (M.R.E.)
    611(d)(3).

                                   4
United States v. Vazquez, 12-5002/AF


counsel wished to challenge Lt. Conn for cause.   At that point,

the court-martial panel consisted of five members, and the

military judge reminded defense counsel that the decision to

challenge the member for cause involved “a lot [of] tactical

things” because, although the military judge found no evidence

of actual bias, he was willing to grant a defense challenge to

Lt. Conn for implied bias under the liberal grant mandate.

Defense counsel asked for, and received, a recess to confer with

Appellee before the military judge ruled on the challenge.

After a one-hour break, defense counsel stated that the defense

wished to maintain the challenge.    The military judge sustained

defense counsel’s challenge for cause and removed Lt. Conn from

the panel.

     Because the remaining four members did not constitute a

quorum under Article 16, UCMJ, 10 U.S.C. § 816 (2006), the

convening authority detailed five new officers, two of whom were

selected to join the panel.   After the convening authority

detailed the new members, the military judge asked defense

counsel if there was “any issue an objection [sic] or any issue

with regards to the appointment of these members?”   Defense

counsel answered “No, Sir.”

     Defense counsel participated in a discussion off the record

as to how the trial record would be presented to the new

members.   When asked if there was any objection, defense counsel

                                 5
United States v. Vazquez, 12-5002/AF


declined to object and did not request that any of the witnesses

be recalled.   Pursuant to the procedure set out in Article

29(b), UCMJ, and R.C.M. 805(d)(1), the military judge had a

verbatim transcript prepared, allowed counsel to give opening

statements, and then had counsel read the transcripts of

testimony of the Government’s first five witnesses to the newly

added members.   Throughout this process, the four original panel

members were absent.

     Subsequently, all six panel members heard testimony from

SSgt DG, the prosecution’s last witness.    The panel then heard

defense counsel’s opening statement and the testimony from

Appellee and other defense witnesses.

                         II.   AFCCA DECISION

     Raising the issue sua sponte, in its original opinion the

AFCCA held that the military judge’s application of the

procedure set forth in R.C.M. 805(d)(1) to Appellee’s case,

rather than declaring a mistrial, was error.    Vazquez, No. ACM

37563, slip op. at 14.    Specifically, the AFCCA concluded that

allowing new members to join the panel after five of the six

Government witnesses had testified, and reading a verbatim

transcript of that testimony to the newly added members, in lieu

of hearing live testimony, violated Appellee’s rights to

confrontation, a properly instructed jury, and an impartial

panel.   Id. at 6-11.   The AFCCA further held that defense

                                   6
United States v. Vazquez, 12-5002/AF


counsel’s failure to object to this process at trial did not

waive Appellee’s constitutional claim of error, id. at 11-12,

and that:

     As applied in this case, RCM 805(d)(1) resulted in a
     structural error in the trial mechanism such that the
     “criminal trial cannot reliably serve its function as
     a vehicle for determination of guilt or innocence.”
     Arizona v. Fulminante, 499 U.S. 279, 310 (1991)
     (quoting Rose v. Clark, 478 U.S. 570, 577-78 (1986)).
     For the reasons discussed, we find the appellant was
     not afforded the due process protections guaranteed by
     Congress.
Id. at 14.

     The AFCCA deleted the above paragraph in its second amended

opinion, but nonetheless deemed the application of R.C.M.

805(d)(1) a “violation of . . . [A]ppellant’s military due

process rights” and per se prejudicial without conducting plain

error analysis.   Vazquez, 71 M.J. at 552.    The AFCCA further

concluded that the military judge “should have recognized that

application of R.C.M. 805(d)(1) would result in a patently

unfair trial and would not ‘preserve the ends of public

justice,’” and that he had a sua sponte duty to declare a

mistrial.    Id. at 551-52.

                          III.   DISCUSSION

     The AFCCA was required, given the absence of any objection

at trial, to conduct plain error analysis and identify the

specific prejudice to a substantial right of Appellee.    Its

determination that reversal was required because “military due


                                  7
United States v. Vazquez, 12-5002/AF


process” was violated, without more, was, quite simply,

incorrect.   Moreover, given that Appellee fails to establish

that the procedures Congress determined were appropriate when a

court-martial drops below quorum mid-trial in Article 29(b),

UCMJ, are unconstitutional as applied to him, the military judge

did not err, let alone abuse his discretion, in following those

procedures in this case.

                                A.

     As was his right, Appellee chose to challenge a member for

cause, knowing it would drop the panel below quorum.   Rather

than request a mistrial or any other alternative, trial defense

counsel affirmatively stated that they had no objection to the

new members being detailed, participated in voir dire and the

discussion about how to present the record to the new members,

and stated that they had no objection to the procedure used.

Appellate defense counsel identified no errors related to this

procedure in their brief to the AFCCA, and even today, Appellee

does not allege that trial defense counsel’s tactical decisions

to challenge the original member for cause and continue the

trial with two new members constituted ineffective assistance of

counsel.   In light of the above, we would ordinarily conclude

that Appellee affirmatively consented to the application of the

procedure established in Article 29(b), UCMJ, and implemented by

R.C.M. 805(d)(1), and waived his right to object to them at this

                                 8
United States v. Vazquez, 12-5002/AF


juncture, particularly when he failed to raise them before the

AFCCA.   See United States v. Campos, 67 M.J. 330 (C.A.A.F. 2009)

(holding that the appellant waived his right to challenge the

admissibility of a stipulation of expected testimony when

defense counsel, at trial, had affirmatively responded that he

had no objection to the stipulation, had advance notice of the

stipulation, and had considered the impact of the stipulation on

the appellant’s case; and when the appellant, on appeal, had not

alleged ineffective assistance of counsel).   However, given that

the application of these procedures in this context has not

previously been addressed by this Court, and that this Court

harbors a presumption against waiver of the fullest expression

of rights under the Confrontation Clause, see United States v.

Harcrow, 66 M.J. 154, 157 (C.A.A.F. 2008), we will treat the

failure to object as forfeiture and review for plain error.    See

id. at 158.

     Regardless, given the absence of an objection, it is a

certainty that the AFCCA erred in determining that there was

reversible error without identifying prejudice to a substantial

right of the accused.   Both parties agree that the alleged error

was not structural, Brief for Appellee at 40, United States v.

Vazquez, No. 12-5002 (C.A.A.F. June 28, 2012); Brief for

Appellant at 36-37, United States v. Vazquez, No. 12-5002

(C.A.A.F. May 30, 2012), and the AFCCA disavowed the notion of

                                 9
United States v. Vazquez, 12-5002/AF


structural error in its second opinion.     Vazquez, 71 M.J. at 552

n.15.   Accordingly, because it “does not constitute structural

error subject to automatic dismissal,” the alleged error would

be subject to plain error analysis.    United States v. Humphries,

71 M.J. 209, 212 (C.A.A.F. 2012); see also Neder v. United

States, 527 U.S. 1, 8 (1999) (recognizing that most

constitutional errors are subject to harmless error analysis).

In this context, the AFCCA’s conclusion that “[a] violation of

the appellant’s military due process rights [is] per se

prejudicial and mandate[s] reversal of the appellant’s

conviction,” Vazquez, 71 M.J. at 552, misstates the law.     See

Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2006) (“A finding or

sentence of 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.”).

                                B.

     No one disagrees that the military judge scrupulously

followed the procedures established by Congress in Article

29(b), UCMJ, as implemented by the President under R.C.M.

805(d)(1).   And no one, including the AFCCA, argues that the

statutory scheme is unconstitutional on its face.     At issue,

therefore, is whether the application of Article 29(b), UCMJ,

and R.C.M. 805(d)(1) to Appellee’s case is constitutional as

applied to him.   If so, the military judge did not commit error,

                                10
United States v. Vazquez, 12-5002/AF


let alone plain error, in applying them.

     “The constitutionality of an act of Congress is a question

of law that we review de novo.”    United States v. Ali, 71 M.J.

256, 265 (C.A.A.F. 2012).   To determine if “a statute is

‘unconstitutional as applied,’ we conduct a fact-specific

inquiry.”   Id. (footnote omitted).

     In Article 29(b), UCMJ, Congress provided for a contingency

procedure in the event of a loss of quorum:

     Whenever a general court-martial, other than a general
     court-martial composed of a military judge only, is
     reduced below five members, the trial may not proceed
     unless the convening authority details new members
     sufficient in number to provide not less than five
     members. The trial may proceed with the new members
     present after the recorded evidence previously
     introduced before the members of the court has been
     read to the court in the presence of the military
     judge, the accused, and counsel for both sides.
The President implemented this statute as follows:

     (1) Members. When after presentation of evidence on
     the merits has begun, a new member is detailed under
     R.C.M. 505(c)(2)(B), trial may not proceed unless the
     testimony and evidence previously admitted on the
     merits, if recorded verbatim, is read to the new
     member, or, if not recorded verbatim, and in the
     absence of a stipulation as to such testimony and
     evidence, the trial proceeds as if no evidence has
     been presented.

R.C.M. 805(d)(1).   The analysis of this provision describes it

as “a means to proceed with a case in the rare circumstance in

which a court-martial is reduced below a quorum after trial on

the merits has begun and a mistrial is inappropriate.”   Manual



                                  11
United States v. Vazquez, 12-5002/AF


for Courts-Martial, United States, Analysis of the Rules for

Courts-Martial app. 21 at A21-47 (2008 ed.) (MCM). 2

     Whether Article 29(b), UCMJ, is constitutional as applied

to Appellee’s case is controlled by the test adopted in Weiss v.

United States, 510 U.S. 163 (1994).    In Weiss, the petitioners

contended that they were entitled to relief because due process

required military judges to serve for some fixed length of time

to ensure independence and impartiality.   Id. at 176, 178.    The

Court, in analyzing this claim, noted that:

          Congress, of course, is subject to the
     requirements of the Due Process Clause when
     legislating in the area of military affairs, and that
     Clause provides some measure of protection to
     defendants in military proceedings. But in
     determining what process is due, courts “must give
     particular deference to the determination of Congress,
     made under its authority to regulate the land and
     naval forces, U.S. Const., Art. I, § 8.” . . .
     Congress has “plenary control over rights, duties, and
     responsibilities in the framework of the Military
     Establishment, including regulations, procedures, and
     remedies related to military discipline.” Judicial
     deference thus “is at its apogee” when reviewing
     congressional decisionmaking in this area. Our
     deference extends to rules relating to the rights of
     servicemembers: “Congress has primary responsibility
     for the delicate task of balancing the rights of
     servicemen against the needs of the military. . . .
     [W]e have adhered to this principle of deference in a
     variety of contexts where, as here, the constitutional
     rights of servicemen were implicated.”



2
  In the 2005 edition of the MCM, the discussion following R.C.M.
805(d) notes that “[w]hen the court-martial has been reduced
below a quorum, a mistrial may be appropriate.” R.C.M. 805(d)
Discussion.

                                12
United States v. Vazquez, 12-5002/AF


Id. at 176-77 (latter omission in original) (citations omitted). 3

In this context, the Supreme Court held that a petitioner’s

rights were violated only if “the factors militating in favor of

[the petitioner’s interest] are so extraordinarily weighty as to

overcome the balance struck by Congress.”   Id. 177-78 (internal

quotation marks omitted).   Applying this standard, the Court

3
  Given the plenary authority of Congress, itself subject to the
requirements of the Due Process Clause, to legislate in the area
of rules relating to the rights of servicemembers at courts-
martial, see Weiss, 510 U.S. at 176-77, and the President’s
authority to make rules implementing Article 29(b), UCMJ, see
United States v. Easton, 71 M.J. 168, 176 (C.A.A.F. 2012)
(noting “the President’s authority as Commander in Chief and as
delegated by Congress pursuant to Article 36, UCMJ, 10 U.S.C.
§ 836 (2006)” to prescribe rules governing courts-martial); cf.
United States v. Jones, 68 M.J. 465, 477 (C.A.A.F. 2010) (Baker,
J., dissenting) (“[T]he President’s authority is at its zenith
when he acts pursuant to Article 36, UCMJ, because he operates
with his own authority as well as that expressly delegated by
the Congress.”), we recognize that the choices made by Congress
and the President in establishing the procedures for courts-
martial under Article 29(b), UCMJ, and R.C.M. 805(d) are
entitled to a high degree of deference, see Weiss, 510 U.S. at
176-77. In view of that deference, we disagree with the
conclusions reached by the AFCCA and Chief Judge Baker. While
it is axiomatic that an accused is entitled to a fair trial, see
id. at 178, absent an argument that the statutory scheme is
facially unconstitutional, or an accused demonstrating that it
is unconstitutional as applied to him, we presume that the
statutory scheme established by Congress and implemented by the
President constitutes both the parameters of what process is due
and a fair trial in the military context. Id. at 181; see
United States v. Mitchell, 39 M.J. 131, 137 (C.M.A. 1994).
Appellee, however, concedes that Article 29(b), UCMJ, is not
facially unconstitutional, Brief for Appellee at 24, United
States v. Vazquez, No. 12-5002 (C.A.A.F. June 28, 2012), and no
one disagrees that Appellee has failed to meet his burden to
show that it is unconstitutional as applied to him. See infra
Part III.C; United States v. Vazquez, __ M.J. __ (3) (C.A.A.F.
2013) (Baker, C.J., concurring in the result).

                                13
United States v. Vazquez, 12-5002/AF


found that the petitioners fell “far short” of demonstrating

that their interest should overcome Congress’ determination

because (1) fixed terms of office had never been a part of the

military tradition, and (2) the UCMJ sufficiently preserved

judicial impartiality.   Id. at 179, 181.

     The Weiss standard controls Appellee’s claim that Article

29(b), UCMJ, and the procedures to implement it set forth in

R.C.M. 805(d)(1) are unconstitutional as applied to him.    See

United States v. Gray, 51 M.J. 1, 49-50 (C.A.A.F. 1999) (holding

that the Weiss standard was “the appropriate test to determine

due process violations in court-martial procedure”); see also

Easton, 71 M.J. at 174-76 (holding that Article 44(c), UCMJ, is

constitutional as applied to trials by court members when

Congress appropriately exercised its Article I power).

Moreover, like the petitioners in Weiss, Appellee has the burden

to demonstrate that Congress’ determination should not be

followed.   Weiss, 510 U.S. at 181; see Mitchell, 39 M.J. at 137

(holding that the appellant’s argument failed to satisfy the

Weiss standard “because he has not met his heavy burden to show

the Constitutional invalidity of this facet of the military

justice system”).

                                C.

     We disagree that the military judge erred in this case.

The AFCCA did not cite Weiss as controlling authority, but

                                14
United States v. Vazquez, 12-5002/AF


rather determined sua sponte that a mistrial was warranted

because it believed that there is a “military due process” right

to have a panel of members “who have all heard and seen the same

material evidence,” and a Sixth Amendment right to have all

members view a witness’s demeanor. 4   Vazquez, 71 M.J. at 546-50.

Both positions are contrary to the plain language of Article

29(b), UCMJ.

     First, the AFCCA mistakenly relied on the concept of

“military due process,” an amorphous concept as used by the

AFCCA that appears to suggest that servicemembers enjoy due

process protections above and beyond the panoply of rights

provided to them by the plain text of the Constitution, the

UCMJ, and the MCM.   They do not.

     Second, Article 29(b), UCMJ, specifically authorizes the

procedures used in this case, and represents Congress’ view of

what “process is due” in the event a panel falls below quorum.

Here, while it was within the military judge’s discretion to



4
  The AFCCA also determined that the application of Article
29(b), UCMJ, and R.C.M. 805(d)(1) violated Appellee’s right to
have panel members comply with a military judge’s instructions.
Vazquez, 71 M.J. at 547-48. However, the AFCCA did not find
that any of the members disregarded the military judge’s
instructions, and its determination that the new members were
incapable of following the military judge’s instructions to
assess the witness’s credibility substantively duplicates its
Confrontation Clause holding and would result in a military due
process violation each time written witness testimony is
properly admitted in a court-martial.

                                15
United States v. Vazquez, 12-5002/AF


either (1) recall witnesses who had testified prior to Lt.

Conn’s removal from the panel under M.R.E. 614, or (2) declare a

mistrial under R.C.M. 915(a), the military judge did not abuse

his discretion in deciding to proceed in accordance with the

statute and R.C.M. 805(d)(1), particularly when defense counsel

affirmatively stated that they did not object to the procedures

that were actually used.   It was Appellee’s burden to develop a

record at trial establishing that the procedures permitted by

statute were unconstitutional as applied to him.    See supra Part

III.B.   Appellee’s acquiescence and complicity in every aspect

of the procedures used did not create a record upon which to

support an as-applied challenge.     Nor did they afford the

military judge either a reason to declare a mistrial or a reason

or opportunity to craft alternative procedures short of a

mistrial, such as recalling witnesses, to obviate the

Confrontation Clause complaints Appellee now raises for the

first time. 5


5
  Moreover, we disagree with Chief Judge Baker’s view that the
military judge abused his discretion by not invoking R.C.M.
915(b) when the court-martial dropped below quorum in this case.
R.C.M. 915(b) requires the military judge to “inquire into the
views of the parties” when “grounds for a mistrial may exist”
and “then decide the matter as an interlocutory question.”
R.C.M. 915(b). “[A] mistrial is a drastic remedy [that] is
reserved for only those situations where the military judge must
intervene to prevent a miscarriage of justice.” United States
v. Garces, 32 M.J. 345, 349 (C.M.A. 1991). “Because of the
extraordinary nature of a mistrial, military judges should
explore the option of taking other remedial action . . . .”

                                16
United States v. Vazquez, 12-5002/AF


     Third, while “[i]t is elementary that ‘a fair trial in a

fair tribunal is a basic requirement of due process,’” Weiss,

510 U.S. at 178 (quoting In re Murchison, 349 U.S. 133, 136

(1955)); see also Mitchell, 39 M.J. at 136 (quoting same), like

the petitioners in Weiss, Appellee has further failed to show,

either at trial or before this Court, how the members in his

case were either actually unfair or appeared to be unfair.     See

Weiss, 510 U.S. at 178.   While the AFCCA made a generalized

assertion that R.C.M. 805(d)(1)’s procedures violated Appellee’s

due process right to a fair and impartial jury because of the

possibility that the original four members exerted undue

influence on the two new members, Vazquez, 71 M.J. at 550, it

failed to consider, let alone apply, the high bar set in Weiss

for a determination that the balance struck by Congress in

Article 29(b), UCMJ, is unconstitutional as applied to a

particular individual.



United States v. Ashby, 68 M.J. 108, 122 (C.A.A.F. 2009). Chief
Judge Baker, in assessing whether grounds for a mistrial may
have existed in this case, does not give the requisite weight to
the procedures set forth in Article 29(b), UCMJ, and R.C.M.
805(d) to address a loss of quorum. Where, as here, (1) the
military judge diligently followed the procedures established
under Article 29(b), UCMJ, and R.C.M. 805(d), and (2) Appellee
fails to establish that the application of these procedures
deprived him of his due process right to a fair trial under the
facts of his case, the military judge could not have possibly
abused his discretion in determining that this remedial action
alleviated any potential grounds for a mistrial, and, thus, a
duty to turn to R.C.M. 915(b)’s procedures.

                                17
United States v. Vazquez, 12-5002/AF


     Instead, the AFCCA asserted that “implicit in the concept

of a fair and impartial panel is the obligation to have members

present who have all heard and seen the same material evidence.

As such, the appellant’s military due process rights in this

regard were violated.”    Id.   In its view, there is a “military

due process” right to have all members be presented with all

evidence in the same way, and, “[i]f an accused is entitled to

have a ‘jury’ determine his fate, that right must include, at a

minimum, having the same jury present for the entire trial.”

Id. at 549.    Not only are these propositions directly contrary

to Article 29(b), UCMJ -- not to mention other provisions of the

UCMJ and MCM, see Article 41, UCMJ, 10 U.S.C. § 841 (2006);

R.C.M. 505; R.C.M. 912(f) -- but also the AFCCA provides no

relevant authority in support of its bald assertions and fails

to explain how Article 29(b), UCMJ, could even be facially

constitutional if either of their assertions was correct.

     Fourth, “the Confrontation Clause guarantees the defendant

a face-to-face meeting with witnesses appearing before the trier

of fact.”     Coy v. Iowa, 487 U.S. 1012, 1016 (1988); see also

United States v. McCollum, 58 M.J. 323, 329 (C.A.A.F. 2003)

(“[T]he [Supreme] Court has stressed that an accused’s right to

physical, face-to-face confrontation with witnesses against him

forms the core of the Confrontation Clause.”).    “The central

concern of the Confrontation Clause is to ensure the reliability

                                  18
United States v. Vazquez, 12-5002/AF


of the evidence against a criminal defendant by subjecting it to

rigorous testing in the context of an adversary proceeding

before the trier of fact.”   Maryland v. Craig, 497 U.S. 836, 845

(1990); Kentucky v. Stincer, 482 U.S. 730, 739 (1987) (“[T]he

right to confrontation is a functional one for the purpose of

promoting reliability in a criminal trial.”).

     As applied, and with no contrary facts developed by

Appellee at trial, Article 29(b), UCMJ, sufficiently satisfies

the central concern of the Confrontation Clause.   Here, each

witness testified under oath and in the presence of the accused

and four of the final panel members.   Appellee also had the

opportunity to cross-examine each witness.   Accordingly, the

verbatim transcript read to the two new panel members was

subject “to rigorous testing in the context of an adversary

proceeding,” Craig, 497 U.S. at 845, and would be admissible

under the former testimony hearsay exception if the witnesses

were found to be unavailable in a subsequent proceeding, even

over defense objection.   See M.R.E. 804(b)(1); see also United

States v. Hubbard, 28 M.J. 27, 31-33 (C.M.A. 1989) (military

judge did not err in admitting, over defense objection, an

unavailable witness’s Article 32, UCMJ, testimony under the

former testimony exception to the hearsay rule); United States

v. Arruza, 26 M.J. 234, 235-36 (C.M.A. 1988) (military judge did

not err in admitting, over defense objection, a substantially

                                19
United States v. Vazquez, 12-5002/AF


verbatim transcript of an unavailable witness’s Article 32,

UCMJ, testimony under the former testimony exception to the

hearsay rule).

     Moreover, while we do not discount the importance of the

trier of fact observing witness demeanor to the central concerns

of the Confrontation Clause, we note that absent a defense

objection, or in the event of witness unavailability, the

presentation of “written” witness “testimony,” without any of

the members seeing the witness’s demeanor, is both an accepted

practice and constitutionally unremarkable.    See, e.g., M.R.E.

804(b)(1) (requiring that for certain former testimony to be

admissible under the rule, the testimony be offered in the form

of a “verbatim record”).    Stipulations of expected testimony,

Article 32, UCMJ, testimony, and deposition transcripts are

routinely presented to members and, absent objection, pose no

dangers to the integrity of the courts-martial or the fairness

of the members. 6   See R.C.M. 811(a) (“The parties may make an

oral or written stipulation to . . . the expected testimony of a

witness.”); United States v. Clark, 53 M.J. 280, 281-82

(C.A.A.F. 2000) (“Evidence that otherwise would be inadmissible

under the Military Rules of Evidence may sometimes be admitted

6
  And in some cases, like the current case, we can well see why a
defendant might prefer to have a “cold” reading of a witness’s
statement rather than the physical presence of a four-year-old
child alleging a sexual assault.

                                 20
United States v. Vazquez, 12-5002/AF


at trial through a stipulation, if the parties expressly agree,

if there is no overreaching on the part of the Government in

obtaining the agreement, and if the military judge finds no

reason to reject the stipulation ‘in the interest of justice.’”

(quoting United States v. Glazier, 26 M.J. 268, 270 (C.M.A.

1988))); see also M.R.E. 804(b)(1); United States v. Connor, 27

M.J. 378, 389 (C.M.A. 1989) (concluding that a military judge

did not err in admitting testimony from the appellant’s pretrial

hearing under Article 32, UCMJ, because the conditions for

admitting former testimony under M.R.E. 804(b)(1) were met, and

the defense had both the “opportunity” for cross-examination and

a “similar motive” to cross-examine).    In that light, Appellee

has shown neither that “the factors militating in favor of [his

interest] are so extraordinarily weighty as to overcome the

balance struck by Congress,” Weiss, 510 U.S. at 177-78, nor that

his rights under the Confrontation Clause were violated.

     While a case could exist where Article 29(b), UCMJ, would

be unconstitutional as applied, Appellee has not met the burden

of showing that it is his case.

                          IV.     DECISION

     The decision of the United States Air Force Court of

Criminal Appeals is reversed.   The record of trial is returned

to the Judge Advocate General of the Air Force for remand to the




                                  21
United States v. Vazquez, 12-5002/AF


Court of Criminal Appeals for further proceedings under Article

66, UCMJ, 10 U.S.C. § 866 (2006).




                               22
United States v. Vazquez, No. 12-5002/AF


     BAKER, Chief Judge (concurring in the result):

     I write separately because while I agree with the

majority’s result, I do not share the majority’s view that this

is, at heart, a case only about Article 29, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. § 829 (2006), including

whether it is   facially valid -- it is.   Rather, like the Court

of Criminal Appeals, I believe this case is about whether or

not, in the particular circumstances of this court-martial,

Appellee received a fair trial.   While I believe Appellee

ultimately received a fair trial for reasons described below, we

need not be in the position of speculating as to what may or may

not have been in Appellee’s interest or whether he did or did

not waive the issue.   That is because Rule for Courts-Martial

(R.C.M.) 915 provides a mechanism for addressing such issues

where grounds for a mistrial may exist.    The difference in legal

view between the majority and this concurrence is over whether

grounds for a mistrial may have existed where five of the six

Government witnesses, including the victim, had already

testified before two out of a total of six members were added to

return to quorum.   In the circumstances of this case, I believe

the military judge abused his discretion in not applying

R.C.M. 915.
United States v. Vazquez, No. 12-5002/AF


Right to a Fair Trial

     Article 29, UCMJ, identifies a normative way to address the

loss of quorum where new members are added to a court-martial

who have not had the benefit of the prior testimony.      However,

it is not an exclusive approach.       And, as the court below notes,

Article 29, UCMJ, does not purport to address or resolve

potential due process concerns that might arise in the context

of adding new members to a court-martial that is well underway

or where demeanor evidence is essential.      General principles of

due process and impartiality also apply as does R.C.M. 805(d),

and in context, R.C.M. 915.

     For example, in he-said-she-said sex cases where there is

no physical evidence, demeanor evidence could be determinative.

Therefore, the rote application of R.C.M. 805(d) and Article 29

UCMJ, could deprive a defendant of a fair trial where all or

most of the witnesses have testified before the original court-

martial panel prior to its reduction below quorum.      In such a

case, simply reading the transcripts of the prior testimony

aloud to the replacement members could deprive them of

information critical to making credibility determinations.      The

Supreme Court has recognized that “demeanor and tone of voice

. . . bear . . . heavily on the listener’s understanding of and

belief in what is said.”   Anderson v. Bessemer City, 470 U.S.

564, 575 (1985).   The point might also be illustrated with

                                   2
United States v. Vazquez, No. 12-5002/AF


reference to a he-said-she-said case where the single witness

against an accused (the victim) had already testified.     Such an

example might illustrate that in certain rare cases, reading

aloud the transcripts of prior testimony to the replacement

members will not for the purposes of due process necessarily and

adequately substitute for the observations of in-court demeanor

as the majority now concludes.   Congress did not decide

otherwise with Article 29, UCMJ.

     However, even given the unusual circumstances of this case,

I conclude ultimately that there was no due process violation in

this case where five of the Government’s six witnesses,

including the victim, had already testified.   First, the members

were presented with the testimony in question.   Second, the

members were allowed to ask questions.   Third, defense counsel

was given an opportunity to object and given adequate time to

consider whether to do so.   Most importantly, in the context of

this trial there might be good reasons why a defendant would not

want the victim to testify before the new members, but would

prefer the more sterile reading of a transcript.   The same is

true with expert testimony, although the difference between

seeing an expert’s in-court testimony and listening to the

transcript of that testimony may be less dramatic than in the

case of a child witness.   Therefore, this record does not



                                   3
United States v. Vazquez, No. 12-5002/AF


establish a violation of Appellee’s constitutional right to a

fair trial.

     Of course, we do not know whether Appellee made a conscious

choice not to request the recall of one or more witnesses,

whether he thought the demeanor evidence helpful or unhelpful,

or whether he fully understood his options when quorum was lost

because the record is devoid of such discussion.    There is a

solution to that -- R.C.M. 915.

     The difference in legal view between the majority and me is

over whether grounds for a mistrial may have existed.    If the

answer to that question is yes, then R.C.M. 915 applies to this

case and the military judge abused his discretion by not

applying it.   Indeed, if applied, the rule would have addressed

the questions presented here head-on, without need to now

speculate at the appellate level about waiver, the importance of

demeanor evidence, whether or not Appellee would have benefitted

from the recall of one or more witnesses, and whether the

accused’s right to a fair trial was protected.

     In my view, the military judge in this trial had a duty to

inquire of the parties whether they wanted to proceed with a

mistrial, recall the Government witnesses who had already

testified, or proceed with the application of R.C.M. 805(d) and

Article 29, UCMJ.

     As noted above, R.C.M. 915(b) requires that:

                                  4
United States v. Vazquez, No. 12-5002/AF


     On motion for a mistrial or when it otherwise appears that
     grounds for a mistrial may exist, the military judge shall
     inquire into the views of the parties on the matter and
     then decide the matter as an interlocutory issue

Emphasis added.   Here, Appellee’s trial was a textbook example

of an instance where grounds for a mistrial may have existed.

Five of the six Government witnesses, including the child-

accuser, had already testified before one of the five members of

the panel was excused and replaced by two new members who were

read the transcribed testimony of the five witnesses who had

already testified.   There was no physical evidence to

corroborate the alleged sexual offense.

     Typically, demeanor is but one component of testimony

factfinders use to determine guilt or innocence.   However,

demeanor was essential in this case because it was a credibility

contest between the victim and the accused in a case devoid of

physical evidence.   The military judge presiding over Appellee’s

trial was on notice that problems related to demeanor evidence

could create conditions necessitating declaration of a mistrial

to prevent injustice.   See United States v. Ashby, 68 M.J. 108

(C.A.A.F. 2009) (mistrial is appropriate when “manifestly

necessary” in the interest of justice) (citation and internal

quotation marks omitted).

     Here the military judge presented only one option:

application of R.C.M. 805(d).   He did not elicit views on


                                 5
United States v. Vazquez, No. 12-5002/AF


whether a mistrial or a recall of one or more witnesses was

required.   After conferencing with the defense and trial counsel

in an R.C.M. 802 conference, the military judge went on the

record and stated:

    I have discussed with counsel, in an 802, our plans for how
    we will proceed in order to comply with RCM 805(d) and the
    guidance therein as to how to proceed when the membership
    of the court has been reduced below a quorum under RCM
    505(c)(2)(b) after trial on the merits has begun.

The military judge then asked, “Do counsel for either side

object to our proceeding in that manner or have anything else

they wish to place on the record in this regard?”   Neither the

defense counsel nor trial counsel objected or made any

additional statements regarding their options.

     However, in a context where R.C.M. 915 was not followed,

and all three available options were not discussed with the

parties, I would not apply waiver to Appellee’s case.    Instead,

I would treat this as a matter of forfeiture and review for

plain error.   For the reasons stated above, I would then find a

clear and obvious error in not applying R.C.M. 915.   However, I

would not find prejudice.   For plain error analysis, Appellee

bears the burden of demonstrating material prejudice to a

substantial right.   Article 59(a), UCMJ, 10 U.S.C. § 859(a)

(2006).   Here, Appellee has failed to carry this burden for the

same reasons the record fails to establish a violation of his

right to a fair trial.

                                 6
United States v. Vazquez, No. 12-5002/AF


     STUCKY, Judge (concurring in the result):

     I have no disagreement whatsoever with the majority

concerning the merits of this case.    The military judge did not

commit error in applying the procedures set forth in Article

29(b), Uniform Code of Military Justice (UCMJ), 10 U.S.C.

§ 829(b) (2006), and Rule for Courts-Martial (R.C.M.) 805(d)(1)

to this case.   I also strongly agree with the Court’s discussion

of military due process, including the applicability of Weiss v.

United States, 510 U.S. 163 (1994).    I write separately solely

because I am unable to join the majority opinion in reviewing

the judgment of the United States Air Force Court of Criminal

Appeals for plain error.   Appellee clearly waived any objection

to the procedures the military judge followed, which were

consistent with Article 29(b) and R.C.M. 805.

     Before granting the implied bias challenge on Lieutenant

(Lt.) Conn, the military judge warned Appellee that granting the

challenge would have consequences.    The defense counsel asked

for a recess so he could discuss the issue with his client.

When court reconvened an hour later, the military judge asked

the defense counsel if Appellee still wished to challenge Lt.

Conn.   The defense maintained the challenge.   The military judge

granted the challenge and advised the parties “to prepare to

regroup and proceed as instructed in the Manuals (sic) for
United States v. Vazquez, No. 12-5002/AF


Courts-Martial.”    When asked whether he concurred with that

approach, the defense counsel said he did.

     The following day during a pretrial hearing, the military

judge advised Appellee that new members had been chosen.      The

defense denied having any objection to the selection of the new

members.    After voir dire and challenges, the new members were

seated and, in the presence of Appellee and his counsel, the

military judge advised them of the procedures that would be

followed -- that the transcribed testimony of the witnesses who

had already testified would be read to them.    In an Article

39(a), UCMJ, 10 U.S.C. § 839(a) (2006), session, the military

judge advised counsel that he intended to proceed under R.C.M.

805(d), which details the procedures for reading the testimony

to the new members.    He then asked if counsel objected to

proceeding in that manner.    Defense counsel answered in the

negative.

     In this case, the military judge offered Appellee several

opportunities to object to the procedure for replacing court

members and reading a transcript of the previously given

testimony to the new members.    Appellee did not merely forfeit

this issue by not objecting, such that we would apply plain

error; he affirmatively declined to object to any aspect of the

procedure.    Under these circumstances, I conclude he waived

appellate review of this issue.


                                  2
