                        UNITED STATES, Appellee

                                    v.

                  Bruce E. GOOCH, Lieutenant Colonel
                       U.S. Air Force, Appellant

                              No. 10-0251

                         Crim. App. No. 37303

       United States Court of Appeals for the Armed Forces

                       Argued November 3, 2010

                       Decided February 9, 2011

BAKER, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN, J., joined. STUCKY, J., filed a separate
opinion dissenting in part and concurring in the result, in
which RYAN, J., joined.

                                 Counsel

For Appellant: Captain Reggie D. Yager (argued); Major Shannon
A. Bennett, Major Michael A. Burnat, and Major Darrin K. Johns
(on brief).

For Appellee: Major Naomi N. Porterfield (argued); Colonel Don
M. Christensen, Lieutenant Colonel Jeremy S. Weber, Major
Coretta E. Gray, and Gerald R. Bruce, Esq. (on brief).

Amicus Curiae for Appellant: Michael Zisser (law student)
(argued); Frank Gulino, Esq. (supervising attorney) and Michael
Levin (law student) (on brief) -- for the Hofstra University
School of Law.

Military Judge:    William M. Burd


       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Gooch, No. 10-0251/AF


     Judge BAKER delivered the opinion of the Court.

     At a general court-martial convened at Sheppard Air Force

Base, Texas, a panel composed of officer members convicted

Appellant, contrary to his pleas, of one specification of making

a false official statement, three specifications of engaging in

conduct unbecoming an officer and a gentleman, and one

specification of fraternization, in violation of Articles 107,

133, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C.

§§ 907, 933, 934 (2006).   The adjudged and approved sentence

consists of a dismissal and a reprimand.

     On review, the United States Air Force Court of Criminal

Appeals affirmed.   United States v. Gooch, No. ACM 37303, 2009

CCA LEXIS 414, at *23, 2009 WL 4110962, at *8 (A.F. Ct. Crim.

App. Nov. 24, 2009).

     We granted review of the following three issues:1

     I. WHETHER THE PROCESS FOR SELECTING PANEL MEMBERS
     FOR APPELLANT’S GENERAL COURT-MARTIAL WAS IMPROPER IN
     LIGHT OF ARTICLE 25, UCMJ, AND UNITED STATES v.
     BARTLETT, 66 M.J. 426 (C.A.A.F. 2008).

     II. WHETHER APPELLANT RECEIVED INEFFECTIVE ASSISTANCE
     OF COUNSEL WHEN, AFTER THE MILITARY JUDGE LEARNED
     DURING SENTENCING DELIBERATIONS THAT THE MEMBERS HAD
     IMPROPERLY RECONSIDERED A FINDING OF NOT GUILTY TO
     SPECIFICATION TWO OF THE ADDITIONAL CHARGE, AND AFTER

1
  Oral argument in this case was heard at the Hofstra University
School of Law, Hempstead, New York, as part of the Court’s
“Project Outreach.” See United States v. Mahoney, 58 M.J. 346,
347 n.1 (C.A.A.F. 2003). This practice was developed as part of
a public awareness program to demonstrate the operation of a
federal court of appeals and the military justice system.

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United States v. Gooch, No. 10-0251/AF


     STATING THAT HE WAS INCLINED TO DISMISS THE
     SPECIFICATION IN ORDER TO CURE THE ERROR, APPELLANT’S
     TRIAL DEFENSE COUNSEL URGED THE MILITARY JUDGE NOT TO
     DISMISS THE SPECIFICATION.

     III. WHETHER THE LOWER COURT ERRED IN HOLDING THAT
     THE DOCTRINE OF “WAIVER” AND “INVITED ERROR” BARRED
     CONSIDERATION OF APPELLANT’S CLAIM OF INEFFECITVE
     ASSISTANCE OF COUNSEL.

     For the reasons set forth below, we conclude that the

process used for screening panel members for Appellant’s court-

martial was inconsistent with Article 25, UCMJ.    However,

Appellant did not suffer material prejudice to a substantial

right; as required by law he was tried by a fair and impartial

panel, including one free from racial bias or taint.   Further,

we conclude based on the particular facts of this case and

applicable Strickland standards, that Appellant did not receive

ineffective assistance of counsel in the context of Issue II.

As a result, we need not reach the third issue.2   Therefore, we

affirm the United States Air Force Court of Criminal Appeals.

                           I.   BACKGROUND

                      A.   Member Selection

     Appellant was charged with inter alia six counts of making

unwanted sexual advances on five female servicemembers,

including four enlisted servicemembers and one subordinate

officer under his command, between July 2005 and May 2007.    At

2
  We note, however, that an appellant cannot waive a claim of
ineffective assistance of counsel where waiver is based on the
very advice he asserts was ineffective.

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United States v. Gooch, No. 10-0251/AF


the time of the alleged incidents, Appellant, an African

American Lieutenant Colonel (Lt Col), was the Mission Support

Squadron (MSS) Commander in the 82d Training Wing (82 TRW),

Sheppard Air Force Base (AFB), Texas.    Both wings at Sheppard

AFB, the 82 TRW and the 80th Flying Training Wing (80 FTW), form

part of the Second Air Force (2 AF), headquartered at Keesler

AFB, Mississippi.    The Commanding General 2 AF is the general

court-martial convening authority (CA) for these two wings.

     As part of the “general process” of member selection, the

82 TRW military justice section developed a pool of potential

panel members for the CA’s consideration by asking each unit to

provide a list of nominees consisting of their “most qualified

individuals” (quarterly list).   In the case of an officer-

accused, once the pool was generated, the military justice

section would initially screen the quarterly list based on

availability, grade and rank before forwarding the remaining

nominees to the CA for consideration.    According to the

testimony of Sergeant Martin, the noncommissioned officer in

charge (NCOIC) of the 82 TRW military justice section, 2 AF had

a written policy requiring 82 TRW to forward a list of “12 to 14

members” to the CA for consideration.

     In this case, the quarterly list contained an

“insufficient” number of officers outranking Appellant to

forward to the CA.   As a result, the NCOIC then obtained a


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United States v. Gooch, No. 10-0251/AF


master list of all members of grade “O-5 and above with the date

of rank prior to [Appellant]” from both wings (master list).

The master list contained forty-six officers, four of whom were

African Americans.   In the words of the NCOIC:

     Because of the rank of the accused, we [the military
     justice section] were concerned about the existing
     [quarterly] list of members that we had. . . . So the
     concern was the date of rank and the actual O-5 list
     that we have wasn’t sufficient for sending forward,
     and there were other concerns regarding knowledge -–
     possible conflicting knowledge of the case or maybe a
     personal relationship with Lieutenant Colonel Gooch
     and his -– by virtue of his status as the MSS
     Commander.

     In response, the NCOIC contacted the military justice

office at 2 AF for guidance.   The staff at 2 AF shared the

NCOIC’s concern, but only as to 82 TRW.   The staff at 2 AF and

the NCOIC at 82 TRW then came to a “group decision” to limit the

availability check of potential members from 82 TRW to those who

arrived on base after Appellant’s date of deployment.   This

reduced the number of potential members on the master list to

seventeen, including one of the previously listed African

American officers.   Subsequently, in accordance with standard

operating procedure, the NCOIC checked on the potential

availability of this pool of officers.    Seven of the seventeen

potential members indicated they would not be available when the

NCOIC informed them that the trial date was “unknown” and would

be “sometime in the spring time frame.”   With only ten names



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United States v. Gooch, No. 10-0251/AF


remaining, the NCOIC again asked the staff at 2 AF for guidance.

According to Sergeant Martin, 2 AF told her to “[s]end us what

you have and we will supplement.”     She did so.   The ten names

were forwarded to the CA who personally selected nine officers

by initialing next to those officers names.    The selected

officers included the remaining African American officer.     In

addition, the CA made a substantive correction to the

memorandum, which he initialed.

     The trial date was not set until after Appellant’s

Resignation in Lieu of Decision was processed.      This was denied

sometime in April 2008.   When the NCOIC subsequently contacted

the nine remaining members with a trial date in June 2008, the

remaining African American officer and one other officer were no

longer available.3   The CA then supplemented the list with

additional names from Lackland AFB and Maxwell AFB.4

          B.   Specification 2 of the Additional Charge

     After the president of the panel announced the panel’s

findings in open court, he informed the military judge that a

member had proposed reconsideration of the finding to

Specification 2 of the Additional Charge (Specification 2).


3
  The African American officer, Lt Col Linscomb, requested to be
released from service as she had nonrefundable tickets to attend
her son’s high school graduation.
4
  The supplements initially included six names from Lackland AFB
and one name from Maxwell AFB.

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United States v. Gooch, No. 10-0251/AF


This would have resulted in an improper reconsideration of the

findings under Rule for Courts-Martial (R.C.M.) 924.   In

response, the parties held an R.C.M. 802 conference, attended by

Appellant, in which the military judge indicated he was inclined

to dismiss Specification 2 and instruct the members to disregard

it in their sentencing deliberations.    The military judge also

indicated, however, that, “If any one or more members said they

couldn’t disregard it, then I would declare a mistrial as to

sentencing and we’d get a new panel.”    The military judge

ultimately decided not to dismiss Specification 2 based on the

following discussion between the military judge, defense

counsel, and Appellant:

     Military Judge:   What would you like to do?

     Defense Counsel: Your Honor, . . . this just does not rise
     to the level of impinging upon Colonel Gooch’s
     constitutional rights. It appears the members were
     conscientious, did the best they could, and they came up
     with a finding, and we are not requesting that you dismiss
     Specification 2 of the Additional Charge. And we would
     like them to continue with their proceedings on sentencing
     and their deliberations.

     Military Judge: And Lieutenant Colonel Gooch, are you in
     agreement with the position your counsel has just stated?

     Appellant:   Yes, sir.

     Military Judge: . . . Is this a waiver of appellate
     consideration of any error involved in this?

     Defense Counsel: Your Honor, off the cuff, the potential
     is that some things are waived and other issues on appeal
     are not waived, of course, so we do not want you to dismiss



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United States v. Gooch, No. 10-0251/AF


     Specification 2 of the Additional Charge, nor are we
     requesting that you dismiss it.

                           II.   DISCUSSION

             A.   Panel Selection Under Article 25, UCMJ

     “‘As a matter of due process, an accused has a

constitutional right, as well as a regulatory right, to a fair

and impartial panel.’”    United States v. Downing, 56 M.J. 419,

421 (C.A.A.F. 2002) (quoting United States v. Wiesen, 56 M.J.

172, 174 (C.A.A.F. 2001)).    These rights are upheld through

application of selection criteria contained in Article 25, UCMJ,

as well as the use of peremptory and causal challenges during

voir dire.   Voir dire is the principal legal instrument used to

ensure that those members who qualify for service as panel

members can do so free from conflict and bias.      R.C.M.

912(f)(1)(N), for example, provides, “[a] member shall be

excused for cause whenever it appears that the member:       Should

not sit as a member in the interest of having the court-martial

free from substantial doubt as to legality, fairness, and

impartiality.” (emphasis added).       Examples of scenarios under

subsection (N) that may be grounds for challenge include where a

member “has a decidedly friendly or hostile attitude toward a

party.”   R.C.M. 912(f)(1)(N) Discussion (emphasis added); see

also United States v. Hollings, 65 M.J. 116, 119 (C.A.A.F. 2007)




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United States v. Gooch, No. 10-0251/AF


(“We have enjoined military judges to follow the liberal grant

mandate in evaluating challenges for cause.”).

     Article 25(a), UCMJ, generally provides that “[a]ny

commissioned officer on active duty is eligible to serve on all

courts-martial.”   Section 25(d), however, delimits this

eligibility.   Subsection (d)(1) provides that members junior in

rank or grade to the accused are ineligible to serve “[w]hen it

can be avoided.”   Subsection (d)(2) further provides that a

member is per se ineligible “when he is the accuser or a witness

for the prosecution or has acted as investigating officer or as

counsel in the same case.”   It is intuitive that other

relationships might similarly disqualify an otherwise eligible

officer during the screening process, such as the parent of a

victim.   From among officers eligible to serve on a court-

martial panel, “the convening authority shall detail as members

thereof such members . . . as, in his opinion, are best

qualified for the duty by reason of age, education, training,

experience, length of service, and judicial temperament.”

Article 25(d)(2), UCMJ.   Although the CA must personally select

the court-martial members, he or she may rely on staff and

subordinate commanders to compile a list of eligible members.

United States v. Dowty, 60 M.J. 163, 169-70 (C.A.A.F. 2004).

     The operation of Article 25, UCMJ, is further informed by

case law.   As a starting point, this Court has identified three


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United States v. Gooch, No. 10-0251/AF

principles that should inform the screening of servicemembers

for court-martial service:     (1) “we will not tolerate an

improper motive to pack the member pool,” (2) “systemic

exclusion of otherwise qualified potential members based on an

impermissible variable such as rank[, race, or gender] is

improper,” and (3) “this Court will be deferential to good faith

attempts to be inclusive and to require representativeness so

that court-martial service is open to all segments of the

military community.”    Dowty, 60 M.J. at 171.

     Appellant, relying on this Court’s opinion in United States

v. Santiago-Davila, 26 M.J. 380 (C.M.A. 1988), argues that as a

result of the screening methodology used in his case “a

cognizable racial group was impermissibly excluded in violation

of Appellant’s due process rights under the Fifth Amendment.”

Brief for Appellant at 13, United States v. Gooch, No. 10-0251

(C.A.A.F. May 26, 2010).      He further argues more generally that

the process used to screen his panel violated Article 25, UCMJ,

and resulted in an unfair panel.        Id. at 14.

     1.   The Selection Process in Appellant’s Case

     Whether a panel has been properly selected is a question of

law reviewed de novo.   Dowty, 60 M.J. at 171.       This Court is

bound by the military judge’s findings of fact unless they are

“clearly erroneous.”    Id.




                                   10
United States v. Gooch, No. 10-0251/AF

     In this case, the NCOIC compiled a list of eligible members

for consideration by the CA based on four screening criteria:

date of rank and grade, availability, “possible personal . . .

knowledge of the case,” and “maybe a personal relationship” with

Appellant, or in the words of the military judge “the best

chance of not having any personal knowledge of the accused.”

     Screening potential members of junior rank or grade is not

only proper; it is required by Article 25(d)(1), UCMJ.    Further,

although not enumerated as an express criterion in Article 25,

UCMJ, availability in the military context is an appropriate

screening factor.   This is implicit in the overall structure of

the UCMJ, which is intended to “promote justice” as well as “to

assist in maintaining good order and discipline” in an

operational context.   Manual for Courts-Martial, United States

pt. I, para. 3 (2008 ed.) (MCM).     It is also reflected in the

language of Article 25(d)(1), UCMJ, contemplating that there may

be circumstances, not at issue here, where service by officers

junior to an accused “cannot be avoided.”    For these reasons,

our case law also recognizes “availability” as a valid

consideration in member selection.    See Wiesen, 56 M.J. at 176.

However, “availability” cannot be used to mask exclusion or

evade Article 25, UCMJ, criteria.    And, where necessary or

appropriate, it is also subject to judicial review at the trial




                                11
United States v. Gooch, No. 10-0251/AF

level, as was done in this case with respect to the two officers

excused from service based on scheduling conflicts.

     However, the question remains whether it was proper for the

NCOIC at Sheppard AFB/military justice to screen-out potential

members based on “possible personal . . . knowledge of the case”

as well as “maybe a personal relationship” with Appellant.

(Emphasis added).   And, as a distinct question, even if such

criteria are permissible, are they permissible where they have

the effect of limiting or eliminating the number of African

Americans who serve on a court-martial panel?

     We first address Appellant’s most pernicious allegation

that the selection of panel members was designed to exclude

members of Appellant’s race.   Appellant cites to Santiago-Davila

and Batson v. Kentucky in support of his argument.

     In Santiago-Davila, a case involving a Puerto Rican

accused, the government used its only peremptory challenge to

exclude a potential member with a Hispanic surname who was

“[r]aised in Puerto Rico.”   26 M.J. at 384-86, 391.   The defense

requested that the military judge inquire into the basis for the

government’s “seemingly discriminatory” challenge.     Id. at 385.

The military judge declined to do so because no authority

existed at that time requiring an inquiry.   Id. at 386.    After

the court-martial, but before reaching this Court on appeal, the

Supreme Court decided Batson, which held that a defendant may


                                12
United States v. Gooch, No. 10-0251/AF

establish a prima facie case of purposeful discrimination during

jury selection based solely on evidence concerning a

prosecutor’s exercise of a peremptory challenge.      476 U.S. 79,

96 (1986).5    On appeal, this Court, applying Batson, held that

the appellant had established a prima facie case of

discrimination, thereby shifting the burden at trial to the

government to present a neutral reason for excluding the member

in question.    Santiago-Davila, 26 M.J. at 391-92.

     This case is distinguishable from Santiago-Davila and

Batson.   Although the screening methodology used had the effect

of excluding three of the four eligible African American members

from consideration by the CA, there is no evidence in the record

of improper motive to “pack the member pool” or to exclude

members based on race.    Indeed, the record reflects a good faith

effort to compile a list of eligible candidates for the

convening authority’s selection.

     The NCOIC for military justice testified that she did not

know the racial composition of the potential members on the

master list.    Neither did the staff at 2 AF advise the NCOIC,

directly or indirectly, regarding race, sex, or command

experience as categories for inclusion or exclusion on a

potential panel.    Nor is there evidence in the record that the

5
  In Batson, the Supreme Court reviewed the use of peremptory
challenges to remove all African American veniremen in a case
against an African American accused. 476 U.S. at 96.

                                 13
United States v. Gooch, No. 10-0251/AF

staff at 2 AF or the CA intended to exclude African Americans

from service.   One African American officer was included in the

list of ten sent to the CA and subsequently selected.    Thus, the

military judge’s factual conclusion “that race was not a factor

in the selection of any of the court members or non-selection of

any of the court members” is not clearly erroneous.    In short,

the methodology used was not intended to exclude African

Americans.6

     However, our inquiry does not end here.     Appellant also

argues that the criteria used to screen members violated Article

25, UCMJ, whether they were race-based or not.    Indeed, as Dowty

illustrates, while we have not read Article 25, UCMJ, as an

exclusive list of criteria by which potential members are

screened, we have scrutinized with care criteria that fall

outside Article 25, UCMJ, boundaries.    Dowty, for example,

involved the “novel” approach of soliciting volunteers to serve


6
  Appellant also argues that this case presents a fait accompli
and urges this Court to find structural error on that basis.
Brief for Appellant, supra at 12-16. As this case does not
present a true fait accompli, we need not accept Appellant’s
invitation. See United States v. Marsh, 21 M.J. 445, 449
(C.M.A. 1986) (stating that a fait accompli means that the CA
“had no real choice but to appoint . . . the persons who had
been recommended by his subordinates”). The staff at 2 AF
informed the NCOIC that they would supplement the list of seven,
which they in fact did on more than one occasion. Therefore,
the CA retained and exercised some choice in the matter. Given
these holdings, we need not consider Appellant’s claims that
these were structural errors. Brief for Appellant, supra at 12-
14.

                                14
United States v. Gooch, No. 10-0251/AF

on courts-martial panels as a means to supplement the member

pool.    60 M.J. at 166.   This Court, adopting the federal

civilian rule against volunteer jurors in United States v.

Kennedy, 548 F.2d 608, 609 (5th Cir. 1977), rejected that

approach, holding that it injected an irrelevant variable into

the procedure established by Congress in Article 25(d)(2), UCMJ,

for obtaining a member panel pool.     60 M.J. at 172.

        The question here is whether “possible personal . . .

knowledge of the case” and possible “personal knowledge of the

accused” were appropriate criteria in this case with which to

categorically exclude service as a panel member.    (Emphasis

added).    We think not.

        First, these categories are not express categories provided

for by the Congress in Article 25, UCMJ.

        Second, the text of R.C.M. 912 reflects the President’s

intent that the appropriate mechanism for addressing potential

bias or knowledge of the case and of the accused is through voir

dire.

        Third, this point is particularly apt where the category of

exclusion is conditional involving only “the possibility” of

knowledge, let alone, knowledge that would preclude panel

service.    Such selection criteria would act to exclude not only

members with negative or positive biases toward an accused but




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United States v. Gooch, No. 10-0251/AF

also members with no view one way or the other who could

potentially make it through the voir dire process.7

        Fourth, the methodology used had the effect of

significantly limiting the potential pool of officers from which

the CA might apply the Article 25, UCMJ, criteria.       A majority

of eligible members from Appellant’s base were thereby excluded

from consideration.    The screening method in this case excluded

twenty-nine of the forty-six eligible officers on the master

list.    Once the unavailable members were excluded, a list of

only ten officers was forwarded to the CA, who selected nine.

For sure, the staff at 2 AF correctly advised the CA that he

might reach beyond the list of candidates provided, but they did

so without providing the CA with the additional knowledge of how

many other officers had been screened out as well as why the CA

might not be inclined to look beyond the immediate list.      Thus,

rather than aiding the CA, this type of screening might unduly

confine the manner in which a CA personally selected those who

“in his opinion, are best qualified,” as contemplated by

Congress in Article 25(d)(2), UCMJ.



7
  Thus, contrary to the dissent’s assertion, we hold only that,
however well-intentioned, the staff cannot exclude an entire
class of eligible members based on mere possibilities, not that
the staff must include all eligible members nor those with
obvious conflicts, United States v. Gooch, __ M.J. __ (4-5)
(C.A.A.F. 2011) (Stucky, J., dissenting in part and concurring
in the result, in which Ryan J., joined).

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United States v. Gooch, No. 10-0251/AF

     Fifth, by delimiting the pool of potential members in this

way the Government arguably although not purposefully afforded

itself the opportunity in effect to peremptorily challenge any

officer at 82 TRW who might know Appellant and have a favorable

view of Appellant’s professional service.   That alone is not

grounds for causal challenge.   See Downing, 56 M.J. at 421-23.

Thus voir dire as provided for in Article 41, UCMJ, and

regulated by the President under R.C.M. 912, is the codal method

for identifying and screening members based on potential bias,

not categorical exclusion.   Voir dire provides an accused (and

the government) with the necessary safeguards in the form of

unlimited challenges for cause based on actual or implied bias

and the liberal grant mandate on the record and supervised by

the military judge.8

     For these reasons, we hold that possible personal knowledge

of the case or the accused, based on contemporaneous service

alone, is not a proper basis for screening potential members

under Article 25, UCMJ.   The government is not entitled to

8
  These safeguards were carefully applied by the military judge
in this case. For example, in dismissing Lt Col C., the
military judge stated:

     I have enough concern, based on everything he said, that
     there’s at least a real potential for implied bias. And,
     given the liberal grant mandate of the appellate courts,
     I’m not interested in getting this case reversed because of
     my failure to properly employ the liberal grant mandate, as
     viewed by the appellate courts. The defense challenge for
     cause is granted.

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United States v. Gooch, No. 10-0251/AF

exclude all potential members who might have a favorable (or

unfavorable) view of an accused based on prior professional

contact.   “[M]aybe a personal relationship” and “any personal

knowledge of the accused” are not Article 25, UCMJ, criteria.

The mechanism for addressing bias, the potential for bias, or

the appearance of bias, is through voir dire and the use of

causal and peremptory challenges.

     2.    Prejudice

     Having found nonconstitutional error in the application of

Article 25, UCMJ, we must determine if the error “materially

prejudiced the substantial rights of the accused.”    Article

59(a), UCMJ.   Appellant asks this Court to set aside the charges

and specifications.    Brief for Appellant, supra at 22.   The

burden of persuasion depends on the nature of the error.

     In United States v. Bartlett, this Court identified three

categories of nonconstitutional error and their corresponding

burdens.   66 M.J. 426, 430 (C.A.A.F. 2008).   First, in the case

of administrative mistake, the appellant must demonstrate

prejudice.   Id.   Second, where the government has intentionally

included or excluded a class of eligible members, the government

must demonstrate lack of harm.   Id.   Third, in the case of

unlawful command influence, the government must prove beyond a

reasonable doubt that the error was harmless.   Id.




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United States v. Gooch, No. 10-0251/AF

      Although the line between each category can be vague, in

this case it is clear.   The Government excluded a class of

potential members from Appellant’s court-martial, based on dates

of service at Sheppard AFB, because such persons might have

knowledge of the case or knowledge of Appellant.   This was more

than a ministerial mistake, such as the omission of an Article

25, UCMJ, factor, or an intended name in a memorandum.    It was a

categorical exclusion based on dates of service at Sheppard AFB.

But Appellant has not demonstrated that the error was generated

by unlawful command effort to influence the racial composition

of the panel nor to “pack the panel” with a command perspective.9

Thus, the burden rests with the Government to show lack of harm.

Id.

      We conclude that the Government has sustained this burden.

The error in this case did not materially prejudice Appellant’s

right to a fair and impartial panel for two reasons.   First, the

Article 25, UCMJ, criteria were applied to the potential pool of

members forwarded to the CA.   Appellant does not argue

otherwise.   The SJA in this case advised the CA that “you may

select court members from the list submitted by 82TRW/CC or you

may select others as you deem appropriate” and “you should

select members who, in your opinion, are best qualified for

9
  The military judge found that “there has been no unlawful
command influence” in this case. Moreover, this is not an issue
on appeal to this Court.

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United States v. Gooch, No. 10-0251/AF

court-martial duty by reason of age, education, training,

experience, length of service and judicial temperament.”          The

record reflects that the CA personally selected the members.

Indeed, he made a handwritten correction to the text of the memo

in addition to initialing by certain, but not all, of the names.

The CA signed his initials next to nine of the ten members

presented to him from Sheppard AFB and four of the six presented

from Lackland AFB, and continued to select from supplemental

lists until arriving at the final detailing order.        Thus,

Appellant has not demonstrated that the CA was presented with a

fait accompli.    The CA could continue supplementing the list

until he was satisfied with his selections and knew that he

could do so.

     Second, the panel by which Appellant was tried was fair and

impartial.   The military judge conducted a rigorous and diligent

voir dire process, in which he properly applied the law,

including consideration of actual and implied bias.       Four of

Appellant’s five challenges based on implied bias were granted.10

                 B.   Ineffective Assistance of Counsel

     The Sixth Amendment guarantees a criminal accused,

including military service members, the right to effective

assistance of counsel.     United States v. Gilley, 56 M.J. 113,


10
  The fifth member was later excused based on Appellant’s
peremptory challenge.

                                   20
United States v. Gooch, No. 10-0251/AF

124 (C.A.A.F. 2001).    In assessing the effectiveness of counsel

we apply the standard set forth in Strickland v. Washington, 466

U.S. 668, 687 (1984), and begin with the presumption of

competence announced in United States v. Cronic, 466 U.S. 648,

658 (1984).   Gilley, 56 M.J. at 124 (citing United States v.

Grigoruk, 52 M.J. 312, 315 (C.A.A.F. 2000)).

     This Court “will not second-guess the strategic or tactical

decisions made at trial by defense counsel.”   United States v.

Mazza, 67 M.J. 470, 475 (C.A.A.F. 2009).    Where an appellant

“attacks the trial strategy or tactics of the defense counsel,

the appellant must show specific defects in counsel’s

performance that were ‘unreasonable under prevailing

professional norms.’”   Id. (quoting United States v. Perez, 64

M.J. 239, 243 (C.A.A.F. 2006)).    Claims of ineffective

assistance of counsel are reviewed de novo.    Id. at 474.

     This Court applies a three-part test to determine whether

the presumption of competence has been overcome:

     1. Are appellant’s allegations true; if so, “is there a
     reasonable explanation for counsel’s actions”?

     2. If the allegations are true, did defense counsel’s
     level of advocacy “fall measurably below the performance
      . . . [ordinarily expected] of fallible lawyers”?

     3. If defense counsel was ineffective, is there “a
     reasonable probability that, absent the errors,” there
     would have been a different result?

United States v. Polk, 32 M.J. 150, 153 (C.M.A. 1991).



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United States v. Gooch, No. 10-0251/AF

     Appellant argues that defense counsel was ineffective in

deciding not to move to dismiss Specification 2 of the

Additional Charge.   As noted at the outset, following the

members’ improper reconsideration of a finding the military

judge determined that the appropriate resolution was to dismiss

Specification 2 of the Additional Charge and to direct members

to disregard that charge in arriving at a sentence.   However,

the military judge also stated that “if any one or more members

said they couldn’t disregard it, then I would declare a mistrial

as to sentencing and we’d get a new panel and proceed on with

sentencing based on the findings that remain.”

     It was counsel’s tactical concern about the prospect of a

mistrial that drove his decision not to have the military judge

dismiss the additional charge.   In his affidavit Major Huygen

states “First and foremost,” he wanted to avoid a mistrial for

sentencing.11   “I believed at that moment in time that the risk

of losing the panel we had worked so hard to shape was simply

too great given my assessment that a second panel would have

been packed more than the first to achieve a result favorable to

the government.”   Second, and related, counsel “was concerned

that a new panel forced to piece together the facts from a cold

record in the aftermath of a mistrial would be less sympathetic

11
  The affidavit of junior counsel on the case, Captain Emmert,
generally concurs.



                                 22
United States v. Gooch, No. 10-0251/AF

than the one that had actually seen and heard all of the

witnesses during findings.”

     Appellant argues that counsel’s concerns do not provide a

reasonable explanation because unlawful command influence was

not a valid concern and members are presumed to follow the

military judge’s instructions.   Brief for Appellant, supra at

25-28.   In addition, Appellant argues that “[u]nder prevailing

professional norms,” lawyers should try to dismiss all

specifications they can.   Id. at 26.

     Lead trial defense counsel provides several reasonable

explanations for avoiding the risk of a mistrial.     In the

context of this case he did not want to risk “losing the panel

we had worked so hard to shape.”      Moreover, in counsel’s view, a

new panel “would be less sympathetic” on sentencing “than one

that had actually seen and heard all of the witnesses during

findings.”   Although, another attorney might have litigated this

issue differently, we cannot say that his conduct falls

measurably below the performance expected of ordinary fallible

lawyers.   Different counsel might have made a tactical choice to

rely on the presumption in the law that members can and will

follow a military judge’s instruction, to wit, to disregard the

dismissal of the additional charge.     But the military judge

himself was not sure what members would do and determined to

poll them first.   Moreover, the reason for counsel’s dilemma,


                                 23
United States v. Gooch, No. 10-0251/AF

from his perspective, was that the panel had already failed to

follow the military judge’s reconsideration instructions,

undercutting a presumption that the members would follow the

military judge’s instructions on disregarding dismissal of the

additional charge.

     Based on the particular circumstances of this case

Appellant has not overcome the presumption that defense counsel

acted competently; therefore, we conclude that counsel’s

decision not to have the military judge dismiss Specification 2

of the Additional Charge did not constitute ineffective

assistance of counsel under Strickland.

                        III.    CONCLUSION

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




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United States v. Gooch, No. 10-0251/AF


     STUCKY, Judge, with whom RYAN, Judge, joins (dissenting in

part and concurring in the result):

     I concur in affirming the judgment of the United States Air

Force Court of Criminal Appeals but dissent from the majority’s

conclusion that the court member selection process employed in

this case -- excluding from consideration any officer assigned

to Appellant’s unit before he was relieved of command or

deployed -- was inconsistent with Article 25, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. § 825 (2006).   I disagree

with the majority’s interpretation of the facts and its

conclusions concerning the law governing this issue.

                                I.

     Appellant was the commander, 82d Mission Support Group, a

subordinate unit of the 82d Training Wing (82 TRW).    The

commander, 82 TRW was the special court-martial convening

authority.   Both organizations are located at Sheppard Air Force

Base, Texas, as is the 80th Flying Training Wing (80 FTW).   The

commander, Second Air Force (2 AF), located at Keesler Air Force

Base, Mississippi, was the general court-martial convening

authority for all of these units.

     The 82 TRW’s staff judge advocate’s military justice staff

(82 TRW/JAM) had a policy of not nominating for selection as

court members persons from the same unit as the accused because

of the likelihood they would be “conflicted.”   Because of his
United States v. Gooch, No. 10-0251/AF


grade and position, the number of officers in the wing who were

neither junior in rank nor subordinate to Appellant was not

sufficient to provide the number of nominees for general court-

martial duty (twelve to fourteen) that the 2 AF commander

required.   After consultation, 2 AF/JAM advised 82 TRW/JAM not

to nominate any officer who was assigned to the 82 TRW before

Appellant “either was relieved of command or deployed.”   The

convening authority referred the case to trial on December 19,

2007, before a court consisting of four officers from the 82 TRW

and five officers from other units at Sheppard Air Force Base.

The case was eventually brought to trial under a different

court-martial order, which included five officers assigned to

Sheppard AFB, three of whom were assigned to the 82 TRW, and six

officers within 2 AF that were assigned to other installations.

                                II.

     “Any commissioned officer on active duty is eligible to

serve” on courts-martial.   Article 25(a), UCMJ (emphasis added).

“When it can be avoided,” no court member should be junior to

the accused in rank or grade.   Article 25(d)(1), UCMJ.

     When convening a court-martial, the convening
     authority shall detail as members thereof such members
     of the armed forces as, in his opinion, are best
     qualified for the duty by reason of age, education,
     training, experience, length of service, and judicial
     temperament. No member of an armed force is eligible
     to serve as a member of a general or special court-
     martial when he is the accuser or a witness for the



                                 2
United States v. Gooch, No. 10-0251/AF


     prosecution or has acted as investigating officer or
     as counsel in the same case.

Article 25(d)(2), UCMJ (emphasis added).

     Except for the President, a “convening authority’s power to

appoint a court-martial is one accompanying the position of

command and may not be delegated.”   United States v. Ryan, 5

M.J. 97, 100-01 (C.M.A. 1978); accord United States v. Dowty, 60

M.J. 163, 169 (C.A.A.F. 2004); see Article 140, UCMJ, 10 U.S.C.

§ 940 (2006) (permitting President to delegate, and provide for

subdelegation, any authority vested in him by the UCMJ).

Article 25(d)(2) gives the convening authority almost unfettered

discretion in selecting court members, as long as he determines

they are “qualified” and not otherwise ineligible.    Of course,

the criteria used to select the members must not violate the

Constitution or the Uniform Code of Military Justice.   United

States v. Witham, 47 M.J. 297, 301 (C.A.A.F. 1997).

     This Court has recognized that the convening authority

“‘must necessarily rely on his staff or subordinate commanders

for the compilation of some eligible names.’”   Dowty, 60 M.J. at

170 (quoting United States v. Kemp, 22 C.M.A. 152, 155, 46

C.M.R. 152, 155 (1973)).   Problems in the court member selection

process normally arise not from the actions of the convening

authority in detailing the members, but from those of the staff

tasked with assembling the list of nominees.



                                 3
United States v. Gooch, No. 10-0251/AF


                                 III.

     The majority opinion correctly notes that our Article 25

jurisprudence is informed by three principles concerning the

screening of personnel for court-martial duty:

     (1) “we will not tolerate an improper motive to pack
     the member pool,” (2) “systemic exclusion of otherwise
     qualified potential members based on an impermissible
     variable such as rank[, race, or gender] is improper,”
     and (3) “this Court will be deferential to good faith
     attempts to be inclusive and to require
     representativeness so that court-martial service is
     open to all segments of the military community.”

United States v. Gooch, __ M.J. __ (10) (C.A.A.F. 2011)

(alteration in original) (quoting Dowty, 60 M.J. at 171)

(citations omitted).

     The opinion acknowledges that the selection criteria listed

in Article 25 are not “an exclusive list of criteria by which

potential members are screened.”       Id. at __ (14).   It recognizes

that, “although not enumerated as an express criterion in

Article 25, UCMJ, availability in the military context is an

appropriate screening factor.”    Id. at __ (11); see id. at __

(11) (citing United States v. Wiesen, 56 M.J. 172, 176 (C.A.A.F.

2001)).   Similarly, the majority concludes that “[i]t is

intuitive that other relationships might similarly disqualify an

otherwise eligible officer during the screening process, such as

the parent of a victim.”   Id. at __ (9-10).      What about the

military spouse of the staff judge advocate, prosecutor, defense



                                   4
United States v. Gooch, No. 10-0251/AF


counsel, or the accused; others awaiting trial by court-martial;

military witnesses for the defense; and military personnel who

work directly with the accused or the victim on a daily basis?

It is similarly “intuitive” that each of these relationships

might be disqualifying.

     The majority incorrectly concludes that, by excluding

officers assigned to the same wing as Appellant before he

deployed, “[a] majority of eligible members from Appellant’s

base were thereby excluded from consideration.”   Id. at __ (16).

The court-martial was convened by the commander, 2 AF, who

commands major units at five installations from which he could

draw court members.   Although it is normal practice to obtain

court members from the locus of the trial, it is not at all

unusual in senior officer cases for convening authorities to

detail court members from different installations.   A majority

of eligible members within 2 AF were not excluded from

consideration.

     The majority also contends that “by delimiting the pool of

potential members in this way the Government arguably although

not purposefully afforded itself the opportunity in effect to

peremptorily challenge any officer at 82 TRW who might know

Appellant and have a favorable view of Appellant’s professional

service.”   Id. at __ (17).   There is absolutely no evidence that

the Government had any such motive or that the members excluded


                                  5
United States v. Gooch, No. 10-0251/AF


were more likely to be favorable than unfavorable to Appellant.

In light of the number of officers requested by the 2 AF

commander (twelve to fourteen) and the number of eligible

officers within the command, the pool was not significantly

limited.

     In today’s high-tempo military, finding officers who will

be available some time in the future is often a difficult task.

Convening authorities recognize the importance of courts-martial

but at the same time want to minimize the disruption the trial

will cause to subordinates who are performing their primary

military missions.    Finding nominees becomes even more difficult

when, as here, the accused is a high-ranking officer because the

pool of eligible court members not junior in grade is smaller

and their military duties and responsibilities tend to be

significantly greater.

     Convening authorities are also very busy people.     If,

because of challenges, a court-martial panel falls below quorum

after voir dire, the trial must be continued while the convening

authority’s staff looks for eligible members who are present and

whose primary duties are such that they are available to sit on

the court-martial.    The convening authority must then interrupt

his other duties to consider the nominations and select

additional members.   If, as the majority demands, the convening

authority’s staff is prohibited from rejecting persons who could


                                  6
United States v. Gooch, No. 10-0251/AF


not or most likely would not survive the voir dire and challenge

process, convening authorities will have to refer cases to

larger court panels -- taking more members away from their

primary duty -- or face the prospect of more interruptions, in

both the trial and his schedule, to select additional court

members.

     The goal of Article 25 is to ensure that a military accused

is tried before fair and impartial members who understand the

need for both justice and military discipline; hence the

requirement that the convening authority detail for court-

martial duty those military members who, “in his opinion, are

best qualified for the duty by reason of age, education,

training, experience, length of service, and judicial

temperament.”   Article 25(d)(2).       Although convening authorities

have considerable discretion in selecting court members, they

expect their staffs to nominate officers according to the law

and in a manner that will be least disruptive to performing the

primary military mission.

     As the Mission Support Group commander, responsible for

more than 900 personnel supporting the Air Force’s largest

technical training wing, and chief advisor to two wings on all

civilian and military promotions, hiring, and professional

development, Appellant was a vital member of the 82 TRW

commander’s staff and would necessarily have interacted on a


                                    7
United States v. Gooch, No. 10-0251/AF


daily basis with all of the senior officers within the wing.

Additionally, all of the alleged victims were members of the 82

TRW, in particular, the squadron he commanded.   While voir dire

may be the principal legal instrument used to ensure that the

members of a court-martial are free from conflict, Gooch, __

M.J. at __ (8-9), it is not the only means to ensure that the

court panel to which an accused’s case is referred is fair and

impartial.   The convening authority was free to select any

eligible officer within his command who met Article 25 criteria.

The fact that persons who were assigned to the same unit as

Appellant and the alleged victims, and who were, therefore, most

likely to have had extensive dealings with them, were not

considered to sit on his court-martial does not violate either

the text nor the spirit of Article 25, our previous

jurisprudence, or the holding in United States v. Bartlett, 66

M.J. 426 (C.A.A.F. 2008).

     Acknowledging that Article 25 criteria are not the only

criteria that may be considered, but unwilling to permit the use

of criteria not otherwise prohibited by the Constitution, UCMJ,

R.C.M., or case law, the majority adopts an ad hoc approach to

conclude that the selection criteria employed here were not

appropriate.   It provides no guidance for convening authorities

or their staffs in evaluating selection criteria for future

cases.


                                 8
