                              IN THE CASE OF


                         UNITED STATES, Appellee

                                     v.

                      Thomas W. DOWTY, Lieutenant
                          U.S. Navy, Appellant

                                No. 03-0152

                         Crim. App. No. 9901701


        United States Court of Appeals for the Armed Forces

                         Argued October 8, 2003

                         Decided August 18, 2004

    GIERKE, J., delivered the opinion of the Court, in which
 CRAWFORD, C.J., BAKER, and ERDMANN, JJ., joined. EFFRON, J.,
              filed a separate dissenting opinion.

                                  Counsel

For Appellant:     Lieutenant Marcus N. Fulton, JAGC, USN (argued).

For Appellee: Captain Glen R. Hines, Jr., USMC, (argued);
Colonel R. M. Favors, USMC, Commander Robert P. Taishoff, JAGC,
USN, and Lieutenant Ross W. Weiland, JAGC, USNR (on brief).

For Amicus Curiae: Kevin J. Barry, Esq. (argued); Philip D.
Cave, Esq., Eugene R. Fidell, Esq., and Stephen A. Saltzburg,
Esq. (on brief), for the National Institute of Military Justice.

Military Judge:     R. L. Rodgers




This opinion is subject to editorial correction before final publication.
United States v. Dowty, No. 03-0152/NA


      Judge GIERKE delivered the opinion of the Court.

      A general court-martial composed of officer members

convicted Appellant, contrary to his pleas, of three

specifications of larceny and one specification of fraud against

the United States in violation of Articles 121 and 132, Uniform

Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 921

and 932 (2000), respectively.        The adjudged and approved

sentence provides for Appellant to pay a $30,000.00 fine and to

be dismissed from the naval service.         The Court of Criminal

Appeals affirmed the findings and sentence.         United States v.

Dowty, 57 M.J. 707 (N-M. Ct. Crim. App. 2002).

     This Court granted review of the following issue:

      WHETHER APPELLANT’S COURT-MARTIAL WAS PROPERLY CONVENED
      WHERE THE MEMBERS POOL WAS CREATED THROUGH SELF-SELECTION
      AND NO MEMBERS WERE SELECTED BY THE CONVENING AUTHORITY
      ACCORDING TO THE CRITERIA CONTAINED IN ARTICLE 25, UNIFORM
      CODE OF MILITARY JUSTICE.

     The lower court properly characterized this issue as

“unique in military jurisprudence.”          Id. at 708.   Appellant’s

command initially used only volunteers for the court-marital

panel.   The granted issue asks this Court to evaluate a novel

preliminary screening process that generated the volunteers for

the court-martial panel and to examine the legal advice provided

to the convening authority (CA) as he selected the panel.          For

the reasons set forth below, we conclude that (1) it was error




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United States v. Dowty, No. 03-0152/NA


to inject into the panel selection process the irrelevant

variable of a servicemember volunteering to be a member and

(2) although we reject and condemn the impermissible screening

of potential members with this irrelevant variable, here it did

not taint the proceedings or prejudice Appellant.    We,

therefore, affirm the decision of the Court of Criminal Appeals.

                                  I. FACTS

            A. General background of Appellant’s offenses
             and the extended delay of the trial on the merits


      We outlined the general nature of the charges that

Appellant now stands convicted of when his case was before us in

1998 on an interlocutory appeal.

           While serving on active duty in the Medical Service
      Corps of the Navy, appellant allegedly conducted a private
      business named Health Care Associates, under which he
      submitted claims for reimbursement to the National Naval
      Medical Center at Bethesda, Maryland. The charges in this
      case allege that the claims submitted by appellant were
      fraudulent.

           On September 28, 1993, the Defense Fraud, Waste, and
      Abuse Hotline received an anonymous allegation that claims
      submitted by appellant’s company to the Government between
      1989 and 1992 were false and forged; that such claims had
      resulted in payment by the Government of $15,000 for
      services that appellant’s company never had rendered; and
      that appellant had deposited the checks paid by the
      Government for these fraudulent claims into his personal
      checking account. The caller subsequently was identified
      as appellant's former wife.

      . . . .

           [Eventually t]he charges were referred to general
      court-martial.



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United States v. Dowty, No. 03-0152/NA


United States v. Dowty, 48 M.J. 102, 104-05 (C.A.A.F. 1998).

        The case was hotly contested from the outset with extensive

interlocutory litigation at the lower court, in United States

District Court, and at this Court.           The lower court’s opinion

documents the prior appellate history.          57 M.J. at 708.   This

extended appellate litigation resulted in postponing the trial

on the merits.     While this case began on May 9, 1996, the

substantive trial on the merits was delayed until early December

1998.    This delay was problematic with regard to providing panel

members for the court-martial.           In the original convening order

and first modification, the CA had detailed ten members to the

court-martial.     Because many of both the original and

substituted panel members had been transferred, new panel

members were needed.

                    B. The novel panel selection process

        The genesis of the present issue is in a routine task

frequently facing the command staff judge advocate - how to

identify a pool of members from which the CA will select the

court-martial panel.      Before 1998, the “standard procedure for

selecting members” at the Bureau of Medicine and Surgery (BUMED)

was for department heads to nominate the best qualified officers

from their respective departments.           This is similar to the

accepted and traditional subordinate-commander nomination model

that is frequently followed.



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United States v. Dowty, No. 03-0152/NA


        In the summer of 1998 as Appellant’s trial was to continue

on the merits, the Assistant Staff Judge Advocate (ASJA) of

BUMED in his own words “came up with the idea of publishing a

Plan of the Week notice” requesting volunteers to serve as

court-martial members.      He took this admittedly “novel approach”

because the BUMED command “had a severe need for a members

pool.”    His concern was to obtain members for Appellant’s case

and potentially three other cases in the next several months.

        With the approval of the Staff Judge Advocate (SJA) and

other military supervisors, the ASJA presented the following

announcement in the BUMED Plan of the Week for four days, June

20-23, 1998:

             3. LEGAL NOTE: MEMBERS NEEDED. Would you like to
        serve as a member in a general or special courts-martial in
        the greater Washington, DC area? Interested active-duty
        military personnel, both officers and enlisted, please
        contact [the ASJA] . . . for further information.

The record does not address whether the CA had actual knowledge

of this solicitation for volunteer members, but it does

establish that he did not assume command until June 28, 1998,

several days after the announcement in the BUMED Plan of the

Week.

        The lower court’s opinion reports the chain of events that

followed:

             Out of approximately 140 officers in BUMED, 50 or so
        officers and enlisted personnel responded to the
        solicitation. The ASJA provided the interested volunteers
        with members’ questionnaires. He received back 47


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United States v. Dowty, No. 03-0152/NA


      completed questionnaires. He separated out the enlisted
      volunteers, leaving him with 22 officer volunteers. The
      ASJA contacted 21 of the 22 officers who volunteered. He
      testified that he deleted two volunteers from the nominee
      pool due to “concerns” he had “because of their close
      relationship with legal” and that it would be therefore
      unfair for them to sit on the jury.

           The ASJA contacted the remaining 20 volunteers and,
      without providing any details, such as the name of the
      accused or the amount of time the volunteers might be
      required, asked each of them if they would be “available”
      to serve on a court-martial during the first week of
      December 1998. The ASJA rejected another five volunteers
      because they said they were not “available.” Thus, the
      ASJA “combed” down the 140 member officer pool at BUMED to
      15 qualified and available volunteers. From these 15, the
      ASJA nominated nine officers that he believed were best
      qualified to serve as members on Appellant’s court-martial.

57 M.J. at 713 (footnotes and citations omitted).

                          C. The advice the CA
                   received as he selected the panel


     After the ASJA had compiled a list of qualified and

nominated members, he submitted it to the SJA for his review and

finally to the chief of staff who approved it.       The ASJA then

forwarded this list of 15 qualified members and 9 nominated

members to the CA.     The folder of information submitted to the

CA included the following:

     1)    The Court Member Questionnaire for each of the 15

      nominated members;

      2)   Two separate documents with each member’s name and a

      blank space to the left.       On one of these documents the

      ASJA indicated by a check mark his nine nominees for the



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United States v. Dowty, No. 03-0152/NA


      panel.   The other document was substantially a mirror image

      of the first except the blank space to the left of every

      name was not marked; on this document the CA was to

      indicate by his check mark his personal selection of the

      panel members; and

      3)   Written advice to the CA regarding his personally

      selecting the members.

This written advice contained this guidance:

            As convening authority, you must select personnel
            qualified by age, training, length of service, and
            judicial temperament; the attached court-martial
            questionnaires for each candidate may be useful in
            making this determination. I believe that any of the
            candidates listed below are acceptable. Please select
            up to nine individuals from the list by initialing
            each of your choices. If you believe that other
            officers should be selected, MED-OOL will solicit
            additional members from throughout the command.

The AJSA did not personally brief or discuss further with the CA

the selection of the members.        Specifically, the ASJA did not

disclose to the CA that he used a “novel” method to select

potential members, that the list of nominated members consisted

solely of volunteers, or that non-volunteers were specifically

excluded from the pool of potential members.

     In selecting the members, the CA signed his name at the

bottom of the page to indicate his selection of nine members.

That document also has a check mark opposite each of the

officers he selected.      Eight of the individuals selected by the

CA were individuals that the ASJA had personally recommended.


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United States v. Dowty, No. 03-0152/NA


Although part of the pool of fifteen qualified members, the

ninth individual selected by the CA for the panel was not

personally recommended by the ASJA.          The ninth member selected

by the CA was also among the original group of volunteers.

Eventually, the CA signed a convening order amendment that

contained this list of nine officers.         Two of the officers

selected as members were lieutenants junior in rank to

Appellant.

      At this point, the panel was not set in stone, and there

was another convening order amendment that added four new

officer members.     None of these new panel members were

volunteers who responded to the Plan of the Week announcement.

This amendment also deleted the two volunteer members who were

junior in rank to Appellant.       As the trial began seven

volunteers remained on the panel.

                  D. Trial developments related to
              challenging the members selection process

      At trial the defense moved to strike the panel currently

detailed and to stay the proceedings on the basis that the

members detailed were improperly selected.         The focus of

Appellant’s argument was that the systematic exclusion of non-

volunteers was impermissible court “packing.”         Appellant

asserted that the CA failed to perform his statutory duty under

Article 25, UCMJ, of personally selecting the members because

the ASJA limited the CA’s pool of members to volunteers and did


                                         8
United States v. Dowty, No. 03-0152/NA


not inform the CA of his developing the panel pool on this

basis.   Appellant asserted that the ASJA’s limiting the panel

pool to volunteers impermissibly allowed the members to “choose

themselves,” allowed volunteers to possibly bring an agenda to

the court-martial, and excluded otherwise qualified non-

volunteer members.

      In support of his position, Appellant filed with the Court

a 14 page Motion For Appropriate Relief with detailed factual

statements and 19 Exhibits that included all the documents that

were submitted to the CA.       In Appellate Exhibit XXXIII, the

defense presented factual information that the defense had

obtained through interviews of three witnesses including the CA,

SJA, and ASJA.     In the motion, the defense requested the Court

to consider both the “statement of facts presented herein which

will be supported by the testimony of [the SJA, ASJA, and CA]”

and the 19 exhibits.      Responding to this request at the outset

of litigating this motion, the judge ruled, without objection

from the parties, that he would consider Appellate Exhibit

XXXIII and the attachments in ruling on the motion.      The judge

then afforded the defense the opportunity to present “other

evidence.”

      While the defense did call witnesses including the SJA and

ASJA, neither the defense nor the prosecution called the CA to

testify.   However, the CA’s information regarding his selection



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United States v. Dowty, No. 03-0152/NA


of the panel was already before the judge in the detailed

defense factual summary that the judge had previously ruled he

would consider in ruling on the defense motion.    In its motion,

the defense established that the CA had stated “that despite

receiving a file [that included the list of nine members

recommended by the ASJA], he did not review the submitted list

from the [ASJA], and instead . . . relied solely upon the 15

members (sic) questionnaires in making his decision.”    The

defense also represented that:

        [the CA] explained that one of the two members lists which
        have been produced in this matter was marked by him as to
        those members which he chose. It bears his signature and
        is attached hereto as Exhibit 2. He received the
        recommendation list, Exhibit 1, but he did know who had
        prepared it, nor did he review it until after he had made
        his choices. When he received the package related to this
        panel, he reviewed the member questionnaires presented to
        him thoroughly. He does not recall speaking to anyone
        about this panel.

        In denying the defense motion, the military judge stated in

part,

        [I]n your own evidence you’ve both raised the issue and
        defeated it. I think that the evidence indicates that the
        convening authority made personal selections of the members
        in this case and that he did so understanding that he could
        choose from the entirety of his command in the process.
        The technique which was employed in soliciting volunteers,
        both novel and potentially troubling . . . has been
        overcome by the evidence that clearly indicates . . . both
        personal selection of the members and consideration of the
        individuals who went beyond this list.


        When the court-martial was assembled, there were ten

members, six of whom were “volunteers.”    The CA had excused one


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United States v. Dowty, No. 03-0152/NA


“volunteer” for an unexplained reason.         When the trial proceeded

to voir dire, the military judge revisited the issue of members

volunteering by asking the entire panel, “Did any of you

volunteer to serve as a member at a court-martial?”         Three of

the six original volunteers gave an affirmative response.           They

all stated that they did not know this would be the case they

would be sitting on when they volunteered.         Also the judge

inquired of each member his reason for volunteering.         One member

stated simply, “Sir, it was an opportunity to take part in a

unique aspect of the justice system in the military.         I’ve

always wanted to do that.”       The other members stated they just

wanted to provide help where it was needed or “just offered.”

We also note that in voir dire one member, who was not among the

original 15 nominated volunteers and was later added to the

panel in an amendment to the convening order, disclosed that she

volunteered for reasons unrelated to the solicitation for court

members in the Plan of the Week.          She explained that she had

volunteered “for the experience” of court-martial participation.

     During individual voir dire, civilian defense counsel

questioned the other three members who did not indicate that

they volunteered.     One member did not recall volunteering,

another did not remember the request for members in the Plan of

the Week, and the final member stated that he did not understand

the earlier question and admitted that he was also a volunteer.



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United States v. Dowty, No. 03-0152/NA


Group or individual voir dire also established that the four new

panel members were not volunteers.

     With this information, the defense counsel did not

challenge any member because the member volunteered for service

on the panel.    The judge granted one defense causal challenge to

a volunteer member on grounds that had nothing to do with the

member’s status as a volunteer.          The judge also granted one

peremptory challenge made by the prosecution and one made by the

defense, thereby removing two more “volunteers” from the panel.

As the case began on the merits, only three volunteer members

who responded to the Plan of the Week solicitation were on the

seven member panel.

                   E. Appellate challenge related to
                     the members selection process


      At the lower court, Appellant repeated the challenge to the

panel selection that he originally presented to the military

judge, but the lower court rejected his arguments.         We note that

the lower court opinion incorrectly states only two volunteers

actually served on the panel when, in fact, there were three.

57 M.J. at 715.     But this factual error does not otherwise

affect the lower court’s analysis or conclusions.         Although the

lower court agreed with the military judge that the panel

selection process was “potentially troubling,” it found that

“[t]here was no effort to exclude any particular group of



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United States v. Dowty, No. 03-0152/NA


potential members.”      Id. at 714-15.   Expressly rejecting

Appellant’s argument that non-volunteers are a discrete group

that cannot be excluded without violating Appellant’s Article

25, UCMJ rights, the lower court found that the CA personally

selected the members.      Id. at 714.

      Before this Court, Appellant again asserts a violation of

Article 25, UCMJ in the ASJA’s method of soliciting volunteers

to select a members pool and repeats his trial and prior

appellate arguments.      However, for the first time, Appellant

expands his attack on the members selection process by arguing

that the CA did not select members for Appellant’s court-martial

based on the explicit statutory requirements of Article

25(d)(2), UCMJ.     Appellant asserts that the ASJA advised the CA

of only four of the Article 25(d)(2) requirements for selecting

members: age, training, length of service, and judicial

temperament.    Appellant claims the ASJA did not advise the CA of

the statutory requirements of “experience” and “education,”

thereby preventing a properly informed CA from selecting the

members.

      The Government asserts that the CA complied with Article

25(d)(2), UCMJ, and properly detailed members to Appellant’s

court-martial.     The Government asserts that the nomination

procedure here was a permissible preliminary screening of




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United States v. Dowty, No. 03-0152/NA


available members.     The Government also asserts that there was

no evidence that the CA did not personally select the members.

                              II. DISCUSSION

         A. Evaluation of the novel panel selection process

      Article I, Section 8, Clause 14, of the United States

Constitution empowers the Congress “To make Rules for the

Government and Regulation of the land and naval Forces[.]”

Legislating under the authority of this provision, Congress has

established the court-martial as the institution to provide

military justice to servicemembers.       This Court has stated that

“the Sixth Amendment right to trial by jury with accompanying

considerations of constitutional means by which juries may be

selected has no application to the appointment of members of

courts-martial.”     United States v. Kemp, 22 C.M.A. 152, 154, 46

C.M.R. 152, 154 (1973).      A servicemember has no right to have a

court-martial be a jury of peers, a representative cross-section

of the community, or randomly chosen.      Ex parte Quirin, 317 U.S.

1, 39-41 (1942); United States v. Tulloch, 47 M.J. 283, 285

(C.A.A.F. 1997); United States v. Smith, 27 M.J. 242, 248

(C.M.A. 1988).     “But, the military defendant does have a right

to members who are fair and impartial.”        United States v.

Roland, 50 M.J. 66, 68 (C.A.A.F. 1999).        This right “is the

cornerstone of the military justice system.”       United States v.

Hilow, 32 M.J. 439, 442 (C.M.A. 1991).



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United States v. Dowty, No. 03-0152/NA


      Actual appointment of fair and impartial members is the

duty and responsibility of the CA.        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 (C.M.A. 1978).        Regarding this non-

delegable duty of the CA, Article 25(d)(2) provides:

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

Simply stated, this statute mandates the selection of members

who are “best qualified.”       See United States v. White, 48 M.J.

251, 254 (C.A.A.F. 1998).       It is blackletter law that the CA

must personally select the court-martial members.        See United

States v. Allen, 5 C.M.A. 626, 18 C.M.R. 250 (1955).        However,

we have also stated that this is not the CA’s solitary endeavor:

      [W]e have recognized that the convening authority, while
      charged with the personal responsibility for the selection
      of court members, must have assistance in the preparation
      of a panel from which to choose those members. In order to
      carry out his function under Article 25, he must
      necessarily rely on his staff or subordinate commanders for
      the compilation of some eligible names.

Kemp, 22 C.M.A. at 155, 46 C.M.R. at 155; see also United States

v. Benedict, 55 M.J. 451, 455 (C.A.A.F. 2001)(“This Court has

held in the past that the ‘convening authority may rely on his



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United States v. Dowty, No. 03-0152/NA


[or her] staff to nominate court members.’”)).       Senior Judge Cox

gave wise advice for everyone involved in providing court-

martial members:

      Those responsible for nominating court members should
      reflect upon the importance of this task. It is a solemn
      and awesome responsibility and not one to be taken lightly
      or frivolously. . . . A fair and impartial court-martial
      is the most fundamental protection that an accused
      servicemember has from unfounded or unprovable charges.
      There is a duty to nominate only fair and impartial
      members.

Smith, 27 M.J. at 252 (Cox, J., concurring).

      In a long line of cases, we have addressed the role of

subordinates, often the staff judge advocate, in performing a

preliminarily screening of members.       In so doing, this Court has

repeatedly declared its vigilance in guaranteeing the judicial

integrity of a court-martial and in preventing improper

selection of court members.        See Roland, 50 M.J. at 68; Hilow,

32 M.J. at 442.

      Several cases provide guidance as to what cannot be done in

screening members for the CA’s consideration of appointment to a

court-martial.     In United State v. Daigle, 1 M.J. 139 (C.M.A.

1975) we rejected a staff judge advocate’s process to obtain

nominees from subordinate commanders solely on the basis of

their rank and without consideration of the Article 25(b)(2),

UCMJ criteria.     See also United States v. Kirkland, 53 M.J. 22

(C.A.A.F. 2000)(holding that exclusion of potentially qualified

members below the grade of E-7 was improper); cf. United States


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United States v. Dowty, No. 03-0152/NA


v. Yager, 7 M.J. 171, 173 (C.M.A. 1979)(permitting exclusion of

soldiers in pay grades E-1 and E-2 as presumptively unqualified

under Article 25(d)).      In Hilow, we held that the deliberate

stacking of the pool of potential members was improper.     32 M.J.

at 442.   We found it impermissible for the division deputy

adjutant general to submit nominees to the staff judge advocate

who were supporters of a command policy of hard discipline.        Id.

at 440 (court packing may occur if a subordinate packs the list

of nominees presented to the convening authority); see also

United States v. McClain, 22 M.J. 124 (C.M.A. 1986)(rejecting

systematic exclusion of junior officers and enlisted members in

pay grade E-6 and below to avoid light sentences).

     Other cases are illustrative as to what subordinates can do

in generating a pool of potential court-marital members to be

submitted to the CA.      In Kemp, 22 C.M.A. 152, 46 C.M.R. 152, we

approved the initial compiling of the pool of potential nominees

by random selection from the master personnel file.     See also

United States v. Crawford, 15 C.M.A. 31, 35 C.M.R. 3, 7

(1964)(approving selection of members following a random

selection of a prospective member list).     In United States v.

Pearson, 15 C.M.A. 63, 35 C.M.R. 35 (1964), this Court found

nothing to cast doubt on the propriety of a selection process

that preliminarily screened enlisted court members senior in

grade to the accused as this limitation is required by Article



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United States v. Dowty, No. 03-0152/NA


25, UCMJ.    In White, this Court permitted group commanders to

submit nominees who were the “best and the brightest” officers,

thereby ultimately satisfying the CA’s personal desire for more

commanders and their deputies rather than non-commanders on the

court-martial panel.      48 M.J. at 253.

      Importantly in White, this Court reaffirmed the importance

of inclusion in identifying panel members.

      Thus, a convening authority ‘is free to require
      representativeness in his court-martial panels and to
      insist that no important segment of the military community
      - such as blacks, Hispanics, or women - be excluded from
      service on court-martial panels,’ so long as he or she does
      not systemically exclude a class or group of qualified
      candidates from court-martial membership.

Id. at 254 (quoting Smith, 27 M.J. at 249).     See also Crawford,

15 C.M.A. at 31, 35 C.M.R. at 3 (stating that deliberate

selection of minority was proper inclusion to insure fair

representation).     However, a desire for representativeness

cannot be a subterfuge to pack the panel.    See Smith, 27 M.J.

242 (rejecting the selection of female members to help secure a

particular outcome).

     From these cases, we identify three factors that are most

helpful in evaluating the propriety of any screening of

servicemembers for eventual consideration by the CA for court-

martial service.     But at the outset, we observe that these

factors are not exhaustive, nor a checklist, but merely a

starting point for evaluating a challenge alleging an



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United States v. Dowty, No. 03-0152/NA


impermissible members selection process.      Indeed, we may

conclude, as we do in this case, that a method of members

selection that does not implicate any of these three factors may

still be impermissible and erroneous.

      First, we will not tolerate an improper motive to pack the

member pool.    See Hilow, 32 M.J. at 440; Smith, 27 M.J. at 249-

50.   Second, systemic exclusion of otherwise qualified potential

members based on an impermissible variable such as rank is

improper.    See Kirkland, 53 M.J. 23; Daigle, 1 M.J. 139.      Third,

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.    See White, 48 M.J. at 254; Crawford, 15 C.M.A. at

31, 35 C.M.R. at 3.

      In applying these factors to the present case, we view the

issue of impermissible screening of the panel pool as one that

invites de novo review.      See Kirkland, 53 M.J. at 24 (“Whether a

court-martial panel was selected free from systematic exclusion

is a question of law which we review de novo.”).      However, we

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

are “clearly erroneous.”       Benedict, 55 M.J. at 454.   Finally,

“The defense shoulders the burden of establishing the improper

exclusion of qualified personnel from the selection process.”

Kirkland, 53 M.J. at 24 (citing Roland, 50 M.J. at 69).        “Once



                                     19
United States v. Dowty, No. 03-0152/NA


the defense establishes such exclusion, the Government must show

by competent evidence that no impropriety occurred when

selecting appellant’s court-martial members.”     Id.

      Applying that framework here, we conclude that Appellant

has not met his burden of establishing the improper exclusion,

with an improper motive, of qualified personnel from the

selection process.     Although Appellant attempted to establish

that the pool was selected for his court-martial with an

improper purpose or intention to “stack” the panel, the record

belies this assertion.      The ASJA explained in detail that his

reason for soliciting volunteers was to generate a pool of

members that would be available to serve in four courts-martial.

The ASJA’s action of identifying potential enlisted members who

were ineligible to serve on Appellant’s court-martial

corroborates the ASJA’s statement that he was concerned with

obtaining a pool that could serve in other cases.       Moreover the

ASJA testified that he made every effort to ensure that the

panel members in the pool were impartial and fair.      Importantly,

he discussed his method of obtaining the pool of volunteers with

the SJA and military seniors and explained it to an SJA at a

different command.     The transparency of the ASJA seeking

volunteer members suggests that he had no improper motive in his

attempt to develop a pool of potential members.     Finally, the

ASJA advised the CA that he had the option to select other



                                     20
United States v. Dowty, No. 03-0152/NA


officers from throughout the command, and other members would be

solicited if he requested them.          On these facts, the issue of

unlawful court stacking was not raised.         See United States v.

Upshaw, 49 M.J. 111 (C.A.A.F. 1998).

      The military judge and the lower court both correctly

concluded that there was not an exclusion with an improper

motive of a class of qualified servicemembers from possible

consideration by the CA.       There was no exclusion based on rank,

race, or gender.     None of the exclusions of servicemembers in

other cases that caused this Court to reject preliminary

screening of members is present in this case.

      We acknowledge that non-volunteers were excluded from the

initial members pool.      But we agree with the military judge and

the lower court who rejected “Appellant’s argument that non-

volunteers are a discrete group that cannot be excluded without

violating his substantial rights.”         Dowty, 57 M.J. at 714.

Moreover, Appellant has made no showing that this result

directly impacted the fabric of the panel pool.         Although

Appellant asserts generally that volunteers may have brought

their own agenda to the court-martial, the military judge

conducted voir dire of each member to establish the

circumstances of the member volunteering.         The reasons for

volunteering given by every panel member establish only good

intentions of each member and no basis to question their motive.



                                     21
United States v. Dowty, No. 03-0152/NA


      This conclusion is supported by defense counsel not

challenging any individual volunteer for reasons related to

volunteering for the panel service.         In fact, four of the seven

members who actually served in this case were not volunteers.

      Finally, we need not speculate as to whether the

solicitation of volunteers was an attempt to improve the

representativeness of the court-martial service.         The ASJA never

offered this justification for his action.         So this factor is

not relevant to our inquiry.

      Notwithstanding our finding none of the impermissible

screening of potential members that we have found in past cases,

we conclude that it was error to inject into the panel selection

process the irrelevant variable of a servicemember volunteering

to be a member, and we reject the “novel and potentially

troubling” method used here to identify volunteer members for

the panel pool.     This conclusion is consistent with the current

federal practice.

      Article 36, UCMJ, 10 U.S.C § 836 (2000), delegates to the

President the authority to prescribe “[p]retrial, trial, and

post-trial procedures, including modes of proof,” in courts-

martial, applying insofar as practicable “the principles of law

and the rules of evidence generally recognized in the trial of

criminal cases in the United States district courts,” so long as

not inconsistent with the UCMJ.          “The implication is that



                                     22
United States v. Dowty, No. 03-0152/NA


Congress intended that, to the extent ‘practicable,’ trial by

court-martial should resemble a criminal trial in a federal

district court.”     United States v. Valigura, 54 M.J. 187, 191

(C.A.A.F. 2000).     Notwithstanding the significant structural

difference between court-martial panels and civilian juries,

this Court has applied this Article 36 mandate to issues

relating to selecting panel members.          See United States v.

Witham, 47 M.J. 297, 298 (C.A.A.F. 1997) (applying to courts-

martial the federal rule that a criminal defendant may not

exercise a peremptory challenge on the basis of race or gender).

Applying this precedent to the present case, we now consider the

“federal rule” relating to service of volunteers as jurors.

       That “federal rule” is simply that the use of volunteers

“violate[s] both the letter and spirit of the Jury Selection and

Service Act of 1968, 28 U.S.C. §§ 1861-1869 . . . and its

requirement of random selection.”          United States v. Kennedy, 548

F.2d 608, 609 (5th Cir. 1977).           The Fifth Circuit could not be

more clear in its explicit rejection of using volunteers as

jurors.   “We condemn the practice, note its apparent demise, and

put all districts under our jurisdiction on notice that its

resurrection shall not be brooked.”          Id.

      The statute required the clerk to “draw at random from the

qualified jury wheel [also based on a random drawing from voter

registration list] . . . names of persons . . . required for . .



                                     23
United States v. Dowty, No. 03-0152/NA


. jury panels.”     28 U.S.C. § 1866(a).       In Kennedy, the jury

clerk, pursuant to standing authorization of the chief judge of

the district, obtained volunteers from the list of persons who

had completed jury service in the prior term.          Weighing this

violation against the goal of the statute to achieve random

selection from a fair cross section of the community, the court

found that this was a “substantial failure to comply” with the

statute.   Id. at 611-12.        Ultimately, the Court granted no

relief as the Appellant failed to properly challenge the jury

selection by the method required in the statute.          Id. at 612-13.

       The linchpin of the Kennedy decision is that Congress

designated a procedure to develop a jury panel and the use of

volunteers was “a substantial variable, not contemplated by the

Act’s few, narrow categories of qualifications, exemptions, and

excuses, [that] has confounded the selection process.”          Id. at

612.   This reasoning applies to the present case.

       Congress in Article 25(b)(2) also established a procedure

to obtain members for a court-martial.          In the present case, the

use of volunteers was also an irrelevant variable injected into

the selection of the panel pool.           We embrace the approach of the

Court of Appeals in Kennedy and will “not speculate as to what

sort of biases will be reflected in a jury chosen on the basis

of its members’ willingness to depart from their daily business

and serve as jurors.”      Id.     We, persuaded by the logic and



                                      24
United States v. Dowty, No. 03-0152/NA


authority of the federal rule as stated in Kennedy, simply

condemn the practice of soliciting only volunteers for the panel

pool.

             B.   Evaluation of prejudice from the improper
                  preliminary screening of panel members


        Our rejection of this practice requires this Court to

evaluate the impact of this error in the context of the military

justice system.      See Daigle, 1 M.J. at 139.   However, this Court

has not clearly stated the allocation of the burden regarding

the demonstration of prejudice in circumstances like the present

case that involved the improper use of command authority

preliminarily to screen members but did not implicate the issue

of command influence.      Compare id. (testing for prejudice from

improper selection of court members but not clearly allocating

the prejudice burden) and Roland, 50 M.J. at 69 (“Once the

defense comes forward and shows an improper selection, the

burden is on the Government to demonstrate that no impropriety

occurred.”) with Upshaw, 49 M.J. at 113 (allocating to the

Appellant the burden “[w]here administrative mistakes occur in

detailing court members”).       In the present case, error in

preliminarily screening the members was not merely an

“administrative mistake.”       As the error was more egregious, we

conclude that the Government has the burden to demonstrate that

the error did not “materially prejudice the substantial rights



                                     25
United States v. Dowty, No. 03-0152/NA


of the accused.”     See Article 59(a), UCMJ, 10 U.S.C. § 859(a)

(2000).   In so doing and evaluating the prejudice in this case,

we focus on the motive of those involved in the preliminary

screening of panel members, the nature of the preliminary

screening variable of volunteerism, and its impact on the

selection of the members.

       Importantly, as we have previously stated, there is no

showing of an improper motive by anyone involved in the

nomination or selection of the members.      See Upshaw, 49 M.J. at

113 (stating that “where the convening authority’s motive is

benign, systematic inclusion or exclusion may not be improper”).

Next, we observe that the preliminary screening variable of

volunteerism is irrelevant.       There is no showing that this

variable operated to exclude a discernable group or to diminish

the representative nature of the pool.      See Kennedy, 548 F.2d at

614.   Appellant has failed to show how non-volunteers were

different as a group than volunteers or how any of the three

individual volunteers in this case was different from the four

non-volunteers.     Also it is clear that the use of volunteers in

the military justice case was not as offensive as their use to

select a civilian jury.      The policy concern for a random

selection and a fair cross section essential in selecting a

civilian jury, is not applicable in the military justice system.

See Tulloch, 47 M.J. at 285.



                                     26
United States v. Dowty, No. 03-0152/NA


      The focus of our concern is therefore on whether the use of

volunteers thwarted the congressional procedure in Article

25(b)(2) for selection of “best qualified” members.     To evaluate

this impact, we must now examine two dimensions of the panel

selection in this case - the advice to the CA regarding his

selection of the members and the actual process of the CA

personally selecting the members on this panel.

                      1. The advice to the CA as
                 he selected the members of the panel

      In Article 25, Congress has provided members of the armed

forces with a valuable protection by requiring that the CA

personally select those members of the armed forces "best

qualified" to serve as court members by reason of judicial

temperament and related statutory criteria.     We now address

whether this protection was honored in this case.

      In Hilow, we emphasized that in discharging his Article 25

powers, the CA must be “fully informed of any attempts to

‘stack’ the court-martial panel or any other matters which may

cast doubt on the fairness of the proceedings.”     32 M.J. at 442.

While we do not find any attempt to stack the court-martial in

this case, we do perceive the unorthodox method to obtain the

panel pool as a matter which was so unusual that it was

problematic and arguably raised questions regarding the

appearance of fairness of the panel.      Therefore, it was a matter




                                     27
United States v. Dowty, No. 03-0152/NA


about which the ASJA should have advised the CA before he

selected the members.

      In light of this failure to advise the CA, we have elected

to address the issue Appellant asserts for the first time at

this Court, that the ASJA’s advice regarding the Article

25(b)(2) statutory criteria for the CA to select members was

also deficient.

      It is well settled that “[o]rdinarily, an objection to the

method of selection of the triers of the facts must be made

before trial.”     Crawford, 15 C.M.A. at 33, 35 C.M.R. at 5.

Appellant’s failure to make this precise objection either at

trial or before the lower court gives us pause, but in the past

we have “pass[ed] over the procedural deficiency to reach the

substance of the issue.”       Id. at 34, 35 C.M.R. at 6.   The

unusual circumstances surrounding the selection of the members

invite us in this case to respond to Appellant’s complaint.

      It is not disputed that the ASJA’s advice to the CA was

deficient.    See Article 25(d)(2), UCMJ.     The AJSA’s written

advice identified these four factors for the CA to consider in

selecting court members:       age, training, length of service, and

judicial temperament.      This advice omitted the statutory factors

of experience and education.

      However, this error did not taint the CA’s personal

selection of the members.       The facts as found by the military



                                     28
United States v. Dowty, No. 03-0152/NA


judge demonstrate the CA’s use of the member questionnaires,

which included extensive information regarding education and

experience of the potential members when he selected the

members.   The record supports these facts.    The CA stated that

he reviewed the member questionnaires in making his selection.

This detailed information on each member addressed both the

factors of experience and education.

      Each questionnaire presented the military experience of the

member for the “last 10 years plus any significant or unusual

billets” and experience in the military justice system.

Appellate Exhibit XXXIII at Court Member Questionnaire.     Also,

each member questionnaire presented a detailed summary of the

educational background of each member including from high school

through graduate education, degrees, fields of study, and legal

education and courses.      Appellate Exhibit XXXIII at Court Member

Questionnaire.     In this case, the CA expressly stated that he

considered the questionnaires, and the questionnaires presented

this detailed information of each member’s experience and

education.    In our view, the combination of these circumstances

sufficiently established that the CA applied the criteria of

Article 25, UCMJ, when he selected these members and removed any

claim of prejudice attendant to the omission of the experience

and education criteria from the SJA advice.




                                     29
United States v. Dowty, No. 03-0152/NA


                              2. The CA’s
                   personal selection of the members


      Notwithstanding the previously discussed issues relating to

the identification of the members pool and the deficient advice

to the CA, we are satisfied that the CA personally selected the

members of Appellant’s court-martial.      Appellant does not

challenge that the CA personally selected a majority of the

members (four of the seven) who were not in the volunteer pool

and that he added by the final modification of the convening

order.   The sole issue is whether the CA personally selected the

three volunteers who eventually served as members.

      The judge in ruling on this issue was right on the mark

when he stated that the defense’s proof in support of the motion

challenging the selection process “both raised the issue and

defeated it.”    The judge was correct that it was the defense

evidence that unequivocally established the CA personally

selected the members.

      In Appellate Exhibit XXXIII, which the military judge

admitted as evidence on the motion, the defense presented an

unrebutted explanation of the CA as to how he personally

selected the panel members.       In this exhibit, the CA explained

that he relied “solely upon the 15 member questionnaires in

making his decision.”      Other statements of the CA in this

defense exhibit provide further reassurances that the CA’s



                                     30
United States v. Dowty, No. 03-0152/NA


selection of the members was free of any improper influence by

the ASJA.    The CA stated that he selected the panel members and

did not review the list of nominations submitted by the ASJA

until after he had selected the panel.        He also stated that he

did not even know who had prepared the list of nominees.        The CA

did not select one of the ASJA’s nominees and in fact selected a

member from the panel pool that the ASJA had not selected.          This

further corroborates the CA’s assertion of his independent

selection of the members.       Finally, and most importantly, the CA

stated that he marked Exhibit 2 to indicate his selection of

members and personally signed it.         This document bears his

signature.    The CA later also personally signed the convening

order modification reflecting his selection of these members.

      In light of these statements of the CA, placed in the

record by the defense, establishing that the CA personally

selected the members, it was not necessary that he personally

appear as a witness at the court-martial to explain his actions.

We conclude that the military judge’s finding of fact that the

CA personally selected the panel is not clearly erroneous.          See

Benedict, 55 M.J. at 455 (concluding that testimony of convening

authority and personal signature on convening order support

finding of the military judge that convening authority

personally selected members).




                                     31
United States v. Dowty, No. 03-0152/NA



                                 C. Summary

      We hold that under the unique facts of this case, the CA

personally selected the panel and applied the criteria of

Article 25(d), thereby curing any error arising from screening

of the panel pool using the impermissible variable of volunteer.

The Government has carried its burden to demonstrate no

prejudice from this error.       This is not to say that the

convening authority’s proper and personal selection of the

members can cure all impermissible screening.         See Hilow, 32

M.J. at 442 (“[W]e have never held that the impact of [command

subordinates’] improper assistance can be ignored solely on the

basis of the CA’s official duty to personally select the members

in accordance with the criteria of Article 25(d)(2).”).

      Previously we have addressed separately each of the

Appellant’s objections to the selection and service of volunteer

members on the panel and to the erroneous ASJA advice to the CA.

However, we have also considered their collective effect and

find that there is no appearance of unfairness arising from the

service of any of the volunteer members in this case.         See

United States v. Marsh, 21 M.J. 445 (C.M.A. 1986).

      The amicus in this case identifies several issues relating

to the process of members selection and the involvement of the

CA and the SJA in selecting members.          The amicus also invites

this Court’s consideration of these issues in light of this


                                     32
United States v. Dowty, No. 03-0152/NA


Court’s supervisory role as the highest court in the military

justice system.     See Eugene R. Fidell, Guide to the Rules of

Practice and Procedure for the United States Court of Appeals

for the Armed Forces 32-34 (11th ed. 2003)(collected cases where

this Court invited rulemaking action or consideration by

Congress when it has identified needed improvements to the

military justice system).

      The amicus position reflects longstanding expressions of

concern regarding the present process for selecting members.

See, e.g., Smith, 27 M.J. at 252 (Cox, J., concurring)(calling

the method of the CA selecting members “the most vulnerable

aspect of the court-martial system; the easiest for critics to

attack”).    See also Honorable Walter T. Cox, III et al., Report

of the Commission on the 50th Anniversary of the Uniform Code of

Military Justice (May 2001)(recommending modifying the role of

the convening authority in selecting court-martial members); 2

Francis A. Gilligan & Fredric I. Lederer, Court-Martial

Procedure 14, ¶ 15-3100 (2d ed. 1991)(“Arguably, the most

critical and least necessary vestige of the historical origins

of the military criminal legal system is the personal

appointment of the members by the convening authority.”);

Kenneth J. Hodson, Military Justice: Abolish or Change?, 22 Kan.

L. Rev. 31 (1973), reprinted in Mil. L. Rev. Bicent. Issue 577,

605 (1975)(proposing that “commanders, at all levels, be



                                     33
United States v. Dowty, No. 03-0152/NA


completely relieved of the responsibility of exercising any

function related to courts-martial except, acting through their

legal advisors, to file charge with a court for trial, to

prosecute, and, in the event of conviction, to exercise

executive clemency by restoring the accused to duty.”).

      But long ago regarding this matter of members selection we

stated, “[t]his Court sits as a judicial body which must take

the law as it finds it, and that any substitution of a new

system of court selection must come from the Congress . . . .”

Kemp, 22 C.M.A. at 154, 46 C.M.R. at 154.    Today, we heed that

wise admonition and, after applying the law to the facts,

conclude simply there was error in this “novel” attempt to

solicit volunteers to serve as court members.   We, however, also

find no material prejudice to Appellant’s substantial rights.



                                  DECISION

      The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




                                     34
United States v. Dowty, 03-0152/NA



     EFFRON, Judge (dissenting):

     As the Supreme Court has noted, “trial by jury in

criminal cases is fundamental to the American scheme of

justice.”   Duncan v. Louisiana, 391 U.S. 145, 149 (1968).

See also Taylor v. Louisiana, 419 U.S. 522 (1975)

(requiring jury selection from a random cross-section of

the community); Baldwin v. New York, 399 U.S. 66 (1970)

(requiring trial by jury in all criminal cases when the

sentence may include confinement in excess of 6 months).

     Congress has determined that the disciplinary needs of

the armed forces require use of a different procedure in

courts-martial.   Under the Uniform Code of Military Justice

[hereinafter UCMJ], there is no right to trial by jury.

The convening authority - the commander who exercises

prosecutorial discretion - selects the court-martial panel.

See Article 25, UCMJ, 10 U.S.C. § 825 (2000); Rules for

Court-Martial 407, 503; United States v. Smith, 27 M.J. 242

(C.M.A. 1988).

     Congress, however, did not provide the convening

authority with unfettered discretion in selecting the panel

that would decide the fate of an accused service member.

As the majority opinion notes, a service member has the

right to a panel that is fair and impartial.   ___ M.J. (15)
United States v. Dowty, 03-0152/NA


(citing United States v. Roland, 50 M.J. 66 (C.A.A.F.

1999)).   The convening authority must personally select the

members of the panel according to specific statutory

criteria, a function that may not be delegated.    ___ M.J.

(16-17)(citing United States v. Ryan, 5 M.J. 97 (C.M.A.

1978); Article 25(d)(2), UCMJ).   To the extent that a

convening authority relies on staff assistance in selecting

a court-martial panel, the staff cannot narrow the pool

through criteria that are not within the qualifications

established by Article 25.   See ___ M.J. (27-28).

     In the present case, the assistant staff judge

advocate narrowed the pool to 22 potential officer members

without applying the qualifications of Article 25.    The

sole criterion was self-qualification by volunteers.     The

lead opinion agrees that this process was impermissible,

but concludes that the error was not prejudicial.

     In testing for prejudice, the lead opinion

appropriately focuses on whether the use of volunteers

thwarted the congressional requirement for selection of the

“best qualified” members under Article 25(d)(2).     There

were three critical errors in this case.   First, the staff

did not apply the criteria in Article 25 in establishing a

potential pool of members.   Second, the assistant staff

judge advocate did not advise the convening authority that


                              2
United States v. Dowty, 03-0152/NA


the staff had deviated from the standard use of Article 25

criteria, but instead had relied on volunteers.    Third, the

assistant staff judge advocate advised the convening

authority to use four criteria when selecting the panel,

advice that omitted two of the statutory criteria in

Article 25 - experience and education.

     The lead opinion concludes that these errors were not

prejudicial because the panel was selected by an

experienced convening authority who personally reviewed the

questionnaires of the potential members that had been

selected by his staff, which included information pertinent

to the experience and education of the potential panel

members.   I respectfully disagree.

     To the extent that this convening authority had

experience in the selection of panel members, it would have

been reasonable for him to rely on his staff to apply the

criteria set forth in Article 25 in narrowing the pool.

They did not.   Moreover, it would have been reasonable for

him to rely on the assistant staff judge advocate to advise

him correctly on the criteria he was required to apply in

selecting the panel.   That advice, however, was defective

because it omitted one-third of the statutory criteria.

Although the convening authority may have used benign

criteria in shaping the panel, he did so applying defective


                              3
United States v. Dowty, 03-0152/NA


standards to a pool that had been impermissibly narrowed by

his staff.

     In short, we have a flawed process that produced

multiple felony convictions.   We have a criminal record

that not only was imposed without a trial by jury, but

through a process that failed to apply the procedures

established by Congress in lieu of trial by jury.   These

errors were compounded by the fact that the staff failed to

inform the convening authority that they had used a deviant

procedure to narrow the pool, and by the staff’s erroneous

advice regarding the criteria that the convening authority

was required to apply under Article 25.   Under these

circumstances, I respectfully dissent.




                               4
