                       UNITED STATES, Appellee

                                    v.

                       Alaa E. ALBAAJ, Sergeant
                         U.S. Army, Appellant

                              No. 07-0002

                       Crim. App. No. 20000121

       United States Court of Appeals for the Armed Forces

                        Argued April 25, 2007

                        Decided June 21, 2007

ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and BAKER, STUCKY, and RYAN, JJ., joined.

                                 Counsel

For Appellant: Major Scott T. Ayers (argued); Lieutenant
Colonel Steven C. Henricks and Major Tyesha E. Lowery (on
brief); Colonel John T. Phelps II, Major Billy B. Ruhling II,
and Captain Fansu Ku.

For Appellee: Captain Trevor B. A. Nelson (argued); Lieutenant
Colonel Michele B. Shields and Major Paul T. Cygnarowicz (on
brief); Colonel John W. Miller II and Lieutenant Colonel Kevin
Boyle.

Military Judge:   Patrick J. Parrish


       This opinion is subject to revision before final publication.
United States v. Albaaj, No. 07-0002/AR

        Judge ERDMANN delivered the opinion of the court.

        Sergeant Alaa Albaaj was convicted by a general court-

martial with members of disobeying lawful orders, maltreatment,

making a false official statement, sodomy, assault with a means

likely to produce death or grievous bodily harm, and indecent

acts.    He was sentenced to a dishonorable discharge, confinement

for ten years, forfeiture of all pay and allowances, and

reduction to the lowest enlisted grade.    The convening authority

approved the sentence.

        In response to a petition for a new trial based on

allegations of juror misconduct, the United States Army Court of

Criminal Appeals ordered an evidentiary hearing.1    United States

v. Albaaj, No. ARMY 20000121 (A. Ct. Crim. App. Aug. 19, 2004).

Based on the results of that hearing the Court of Criminal

Appeals denied the petition for new trial and affirmed the

findings and sentence.    United States v. Albaaj, No. ARMY

20000121 (A. Ct. Crim. App. Aug. 1, 2006).

        The Supreme Court has noted that a touchstone of a fair

trial is an impartial trier of fact:

        Voir dire examination serves to protect that right by
        exposing possible biases, both known and unknown, on
        the part of potential jurors. Demonstrated bias in
        the responses to questions on voir dire may result in
        a juror being excused for cause; hints of bias not
        sufficient to warrant challenge for cause may assist
        parties in exercising their peremptory challenges.

1
  See United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411
(1967).

                                   2
United States v. Albaaj, No. 07-0002/AR

       The necessity of truthful answers by prospective
       jurors if this process is to serve its purpose is
       obvious.

McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 554

(1984).    “Where a potential member is not forthcoming . . . the

process may well be burdened intolerably.”      United States v.

Mack, 41 M.J. 51, 54 (C.M.A. 1994).

       We granted review to determine whether Albaaj’s right to

trial by a panel of fair and impartial members was violated when

a panel member failed to disclose that he knew Albaaj’s brother,

who was a defense witness on both the merits and sentencing.2      We

conclude the member’s failure to disclose his relationship with

Albaaj’s brother, Emad, constitutes juror misconduct.      When

viewed objectively, the circumstances of the relationship

combined with the member’s failure to disclose it to the

military judge injure the perception of fairness in the military

justice system.    Most members in the same position would be

prejudiced or biased.    The decision of the Court of Criminal

Appeals is therefore reversed.




2
    We granted review of the following issue:

       WHETHER APPELLANT’S CONSTITUTIONAL AND REGULATORY RIGHT TO
       A FAIR AND IMPARTIAL PANEL WAS VIOLATED BY THE MISCONDUCT
       OF A PANEL MEMBER.

64 M.J. 402 (C.A.A.F. 2007).

                                  3
United States v. Albaaj, No. 07-0002/AR

                             Background

     One of the venire members assembled for Albaaj’s court-

martial was Major Melcher, now Lieutenant Colonel Melcher

(retired), the Executive Officer for the Director of Information

Management (DOIM) at Fort Carson, Colorado.   During preliminary

instructions, the military judge directed the members that “if

you know of any matter which you believe may affect your

impartiality to sit as a court member, you must disclose that

when asked to do so.”   The members were advised that the grounds

for challenge included “any . . . matter that may affect your

impartiality.”

     After the members examined the charges, they were asked

whether “any member of the court is aware of any matter which he

or she believes may be a ground for challenge by either side.”

None of the members responded.   The military judge specifically

asked:   “Does anyone know anyone named, Emad, in any of the

specifications?”   There was a negative response from each

member, including Melcher.   At the conclusion of voir dire,

there was a challenge by the defense to a single enlisted

member, which was granted by the military judge.   Neither party

exercised a peremptory challenge.    The court-martial panel

ultimately consisted of nine members, including Melcher.

     As part of its case-in-chief, the defense called Albaaj’s

brother, Emad Albaaj, as a witness.   From 1998 to 2000, Emad was



                                 4
United States v. Albaaj, No. 07-0002/AR

the information management officer for the Range Control

Division and was also the functional manager for the Range

Facility Management Support System3 (RFMSS) at Fort Carson.     The

DOIM, for which Melcher was the executive officer, provided the

server and connections that supported RFMSS.   Emad’s testimony

on the merits spans twenty-one pages of the record of trial.     He

was recalled briefly during sentencing as a defense witness in

extenuation and mitigation.   Although Melcher had prior work-

related contact with Emad, he did not reveal that fact to the

military judge even after he recognized Emad during the trial.

     In his post-trial submissions to the convening authority,

Albaaj raised an issue of court member misconduct.   He alleged

that Melcher had failed to honestly answer a material question

on voir dire and that because Melcher and Emad had an “extremely

antagonistic relationship” there were “substantial doubt[s] as

to the legality, fairness and impartiality of the proceedings.”

Attached to the petition for clemency were a number of e-mails

authored by Melcher reflecting his work relationship with Emad.

The messages included statements by Melcher that were critical

of Emad and questioned his honesty.   The convening authority

granted no relief for this claim of error.




3
  The RFMSS is an automated system that controls the ranges,
schedules ranges, controls the live fire, and deconflicts live
training to ensure the safety of soldiers.

                                 5
United States v. Albaaj, No. 07-0002/AR

        Before the Court of Criminal Appeals, Albaaj again raised

the issue of court member misconduct.    He also filed a petition

for new trial under Article 73, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 873 (2000), claiming fraud on the court

because Melcher failed to disclose his prior relationship with

Emad.    In response to the petition for new trial, the lower

court ordered a post-trial DuBay hearing to inquire into the

allegation of court member misconduct and directed that the

military judge make findings of fact and conclusions of law on

that issue.4

        Both Melcher and Emad testified at the DuBay hearing.     The

testimony confirmed that during mid to late 1999, Melcher and

Emad had professional contact concerning the administration of

computer servers and systems that supported the Range Control

Division operations.    The testimony established that Melcher

developed negative impressions of Emad during this time.      A

degree of acrimony was reflected in e-mail from Melcher

suggesting that Emad was “trash[ing] the DOIM,” that Emad “had

his facts wrong,” and that Emad’s communications outside Fort

Carson were “BS” that had a negative impact.    In general,

Melcher believed that Emad had misrepresented facts and had “a

personal agenda which is not based on the fact[s] or truth.”

4
  “[A]n evidentiary hearing is the appropriate forum to develop
the full circumstances” surrounding such allegations of court



                                   6
United States v. Albaaj, No. 07-0002/AR

However, Melcher testified that over time he had occasion to

reevaluate Emad’s opinions and indicated that before Albaaj’s

trial, he had developed a favorable opinion of Emad.    After

considering the evidence presented at the DuBay hearing the

military judge concluded that Melcher “did not fail to honestly

answer a material question on voir dire” and that Melcher did

not fail to later disclose his knowledge of Emad in bad faith.

Finally, the military judge concluded that there was no basis

upon which to challenge Melcher for cause either for actual or

for implied bias.

                              Discussion

        We expect complete candor from court members during voir

dire.    United States v. Modesto, 43 M.J. 315, 318 (C.A.A.F.

1995).    Anything less undermines the purpose of the member

selection process at trial and, in turn, potentially deprives an

accused of an impartial determination of guilt and a fair trial.

See Mack, 41 M.J. at 54 (“this Court consistently has required

member honesty during voir dire”); United States v. Lake, 36

M.J. 317, 323 (C.M.A. 1993) (the court will not “condone such

reticence by . . . members”); United States v. Rosser, 6 M.J.

267, 273 (C.M.A. 1979) (“No premium will be paid in the military

justice system for lack of candor on the part of its members”),




member misconduct. United States v. Mack, 41 M.J. at 55-56;
United States v. Humpherys, 57 M.J. 83, 96 (C.A.A.F. 2002).

                                   7
United States v. Albaaj, No. 07-0002/AR

abrogated on other grounds by United States v. Biagase, 50 M.J.

143, 151 (C.A.A.F. 1999).

     In Mack, we adopted the two-pronged test articulated by the

Supreme Court in McDonough for determining whether a new trial

is warranted when there is an allegation that a juror failed to

disclose information during voir dire:    “‘[A] party must first

demonstrate that a juror failed to answer honestly a material

question on voir dire, and then further show that a correct

response would have provided a valid basis for a challenge for

cause.’”   41 M.J. at 55 (quoting McDonough, 464 U.S. at 556);

see also United States v. Ruiz, 49 M.J. 340, 346 (C.A.A.F.

1998).

     We agree with the military judge’s conclusion that:       “If a

court member learns of information during the trial which makes

an earlier response to a voir dire question inaccurate, the

member should so advise the court.”   The duty of candor does not

stop at the end of voir dire but is an obligation that continues

through the duration of the trial.    It makes no difference

whether the member knew during voir dire that his response to a

question was incorrect or whether he later realized, or

reasonably should have realized, that his initial response was

incorrect -- the duty to honestly inform the court is the same.

     We need not address whether Melcher’s response during voir

dire that he did not know anyone named “Emad” was a “failure to



                                 8
United States v. Albaaj, No. 07-0002/AR

answer honestly” under McDonough.    The first prong of the

McDonough test in this circumstance is whether the member failed

to honestly inform the military judge that his earlier response

to a material voir dire question was incorrect.   The military

judge’s preliminary question put Melcher on notice that someone

named “Emad” was involved in the trial and that knowledge of

that individual was of some importance to the selection of the

court-martial panel.   When Emad entered the courtroom to

testify, Melcher recognized him and realized that he knew him

from their work relationship.   At that point it was, or should

have been, clear to Melcher that his previous answer to the

military judge’s question about whether anyone knew “Emad” was

incorrect.

     While the DuBay military judge found that Melcher’s “lack

of disclosure was not done in bad faith,” that is not the proper

inquiry.   A panel member is not the judge of his own

qualifications.   See R.C.M. 801(a)(4) (the military judge rules

on “all questions of law raised during the court-martial”);

R.C.M. 912(f)(3) (“The military judge shall rule finally on each

challenge.”).   The duty to disclose cannot be dependent upon the

court member’s own evaluation of either the importance of the

information or his ability to sit in judgment.    Just as honest

disclosure must be made in response to direct questions on voir

dire, honest disclosures must be made throughout the trial



                                 9
United States v. Albaaj, No. 07-0002/AR

“regardless of [the members’] own belief as to their ability to

sit as court members.”   Rosser, 6 M.J. at 273.5   When Emad took

the witness stand, Melcher either was or should have been aware

that his initial response to the military judge’s question

concerning Emad was incorrect.    We conclude that by failing to

correct the misinformation he had given during voir dire,

Melcher violated his duty of candor.

     The first prong of the McDonough test also requires that

the question be “material,” which is defined as “[h]aving some

logical connection with the consequential facts . . . [or] [o]f

such a nature that knowledge of the item would affect a person’s

decision-making.”   Black’s Law Dictionary 998 (8th ed. 2004).

There can be no doubt that a question as to a potential member’s

knowledge of a witness is “material” to a defendant’s right to

expose potential biases in order to ensure an impartial jury.

     As a result of Melcher’s nondisclosure, Albaaj’s defense

counsel was unaware of the relationship between Melcher and Emad

during the trial when he could have made further inquiry into

the nature of the relationship.    As a result of that inquiry he

could have moved for a mistrial or asked that Melcher be removed

from the panel prior to deliberations, either for cause or on

5
  Although Rosser predicated this conclusion on paragraph 62.b.,
Manual for Courts-Martial, United States (1969 rev. ed.), it is
no less applicable to R.C.M. 912. See Manual for Courts-
Martial, United States, Analysis of the Rules for Courts-Martial



                                  10
United States v. Albaaj, No. 07-0002/AR

the basis that he would have exercised his peremptory challenge

against Melcher had he been aware of the relationship.

Therefore, we conclude that Melcher failed to disclose

information that was material to the conduct of a fair and

impartial trial.

     The second prong of the McDonough test is whether the

correct response to the question would have provided a valid

basis for a challenge.   Albaaj urges that Melcher’s prior

undisclosed relationship with Emad constitutes bias under R.C.M.

912(f)(1)(N) and therefore establishes a basis for a valid

challenge for cause.   Challenges under R.C.M. 912(f)(1)(N)

encompass both actual and implied bias.   United States v.

Briggs, 64 M.J. 285, 286 (C.A.A.F. 2007) (citing United States

v. Strand, 59 M.J. 455, 458 (C.A.A.F. 2004)).    These are

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

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

     In the case of actual bias, we are generally deferential to

a military judge’s ruling because such challenges “involve[]

judgments regarding credibility, and because ‘the military judge

has an opportunity to observe the demeanor of court members and

assess their credibility during voir dire.’”    United States v.

Clay, 64 M.J. 274, 276 (C.A.A.F. 2007) (quoting United States v.

Daulton, 45 M.J. 212, 217 (C.A.A.F. 1996)).


app. 21 at A21-61 (2005 ed.), indicating that the Rule and its


                                11
United States v. Albaaj, No. 07-0002/AR

        “[T]he test for implied bias is objective, and asks

whether, in the eyes of the public, the challenged member’s

circumstances do injury to the ‘perception of appearance of

fairness in the military justice system.’”      United States v.

Terry, 64 M.J. 295, 302 (C.A.A.F. 2007) (quoting United States

v. Moreno, 63 M.J. 129, 134 (C.A.A.F. 2006)).      In making this

objective evaluation, we ask whether most members in the same

position as Melcher would be prejudiced or biased.      Id. (quoting

Strand, 59 M.J. at 459).     Because of this objective test and the

nature of the inquiries, “‘issues of implied bias are reviewed

under a standard less deferential than abuse of discretion but

more deferential than de novo.’”       Strand, 59 M.J. at 458

(quoting United States v. Miles, 58 M.J. 192, 195 (C.A.A.F.

2003)).    As we decide the issue of bias under R.C.M.

912(f)(1)(N) on the basis of implied bias, there is no need for

the court to address the issue of actual bias in this case.

        The evidence from the DuBay hearing reflects that

throughout the summer of 1999 and continuing as late as the end

of October 1999, Melcher evidenced a marked hostility toward

Emad.    The e-mails reflect both that Melcher was unhappy with

aspects of Emad’s conduct and that he questioned Emad’s honesty.

Viewed objectively, the e-mail correspondence reveals that

Melcher thought very little of Emad either professionally or



discussion are based upon paragraph 62.b.

                                  12
United States v. Albaaj, No. 07-0002/AR

personally.   However, at the DuBay hearing Melcher claimed that

sometime between his last e-mail on October 29, 1999, and the

court-martial on February 9, 2000, he had gained a new-found

appreciation for Emad’s work and a new appreciation for Emad’s

character.

     Despite the member’s asserted change in his personal

evaluation of Emad, the record clearly established that Melcher

was openly antagonistic toward Emad and questioned his honesty

as recently as fifteen weeks before the court-martial.   Not only

was the relationship between Melcher and Emad uncertain in tone,

where we are dealing with a witness who is a brother of the

accused, there is a risk that the member might impart their

feelings about the witness to the accused.   Those factors, when

combined with Melcher’s subsequent failure to disclose the

relationship even after he realized his earlier response was

incorrect, raises concerns about the impartiality of this member

and the resultant fairness of the proceeding.   A reasonable

public observer of this trial would conclude that Melcher’s

actions injured the perception of fairness in the military

justice system.   Albaaj has therefore established implied bias

which is a valid basis for challenge of Major Melcher and has

satisfied both prongs of the McDonough test.




                                13
United States v. Albaaj, No. 07-0002/AR

                             Decision

     The decision of the United States Army Court of Criminal

Appeals is reversed.   The findings and sentence are set aside.

A rehearing is authorized.




                                14
