       This opinion is subject to revision before publication


        UNITED STATES COURT OF APPEALS
                  FOR THE    ARMED FORCES
                         _______________

                       UNITED STATES
                           Appellee
                                v.
            Pedro M. BESS, Hospital Corpsman
                Second Class Petty Officer
               United States Navy, Appellant
                          No. 19-0086
                    Crim. App. No. 201300311
            Argued October 23, 2019—May 14, 2020
               Military Judge: Heather Partridge
   For Appellant: Lieutenant Clifton E. Morgan III, JAGC,
   USN (argued); Lieutenant Commander William L. Geraty,
   JAGC, USN, and Lieutenant Commander Jacob E. Meusch,
   JAGC, USN (on brief).
   For Appellee: Lieutenant Kurt W. Siegal, JAGC, USN (ar-
   gued); Colonel Mark K. Jamison, USMC, Captain Brian L.
   Farrell, USMC, and Brian K. Keller, Esq. (on brief); Lieuten-
   ant Joshua C. Fiveson, JAGC, USN.
   Amicus Curiae for Appellant: Daniel S. Harawa, Esq., Sher-
   rilyn A. Ifill, Esq., Kerrel Murray, Esq., Janai S. Nelson,
   Esq., and Samuel Spital, Esq., for the NAACP Legal De-
   fense and Educational Fund, Inc. (on brief).
   Judge RYAN delivered the opinion of the Court, in which
   Chief Judge STUCKY joined, and Judge MAGGS joined,
   except as to Part II.B.1. Judge MAGGS filed a separate
   opinion, concurring in part and concurring in the judg-
   ment. Judge OHLSON filed a dissenting opinion, in
   which Judge SPARKS joined. Judge SPARKS filed a dis-
   senting opinion, in which Judge OHLSON joined.
                        _______________

   Judge RYAN delivered the opinion of the Court.
    Appellant’s original conviction was set aside for legal er-
ror, and a rehearing was authorized. United States v. Bess, 75
M.J. 70, 77 (C.A.A.F. 2016). The convening authority then re-
ferred charges to a new general court-martial. A panel of
three officer and two enlisted members, convicted Appellant,
an X-ray technician, contrary to his pleas, of two specifica-
tions of indecent conduct in violation of Article 120, Uniform
              United States v. Bess, No. 19-0086/NA
                      Opinion of the Court

Code of Military Justice (UCMJ), 10 U.S.C. § 920 (2012),1 for
his wrongful requirement that two women undress during
their respective X-ray examinations. The court-martial sen-
tenced Appellant to be reduced to the grade of E-3, to be con-
fined for one year, and to be reprimanded. The convening au-
thority approved the adjudged sentence, and the United
States Navy-Marine Corps Court of Criminal Appeals
(NMCCA) affirmed the findings and sentence. United States
v. Bess, No. NMCCA 201300311, 2018 CCA LEXIS 476, *33,
2018 WL 4784569, *12 (N-M. Ct. Crim. App. Oct. 4, 2018).
   On appeal, Appellant alleges racial discrimination and
unlawful influence in the convening authority’s selection of
members. We granted review to consider three issues:
       I. Whether the convening authority’s selection of
       members violated the equal protection requirements
       of the Fifth Amendment.
       II. Whether the convening authority’s selection of
       members constituted unlawful command influence.
       III. Whether the lower court erred in affirming the
       military judge’s denial of Appellant’s motion to pro-
       duce evidence of the racial makeup of potential
       members.
We answer all three questions in the negative. While racial
discrimination is clearly unconstitutional, absent intentional
racial discrimination or an improper motive or criteria in the
selection of members, the mere fact a court-martial panel fails
to include minority representation violates neither the Fifth
Amendment nor Article 37, UCMJ, 10 U.S.C. § 837 (2012)’s
prohibition against unlawful command influence. Addition-
ally, Appellant’s oral discovery request sought irrelevant in-
formation, thus the military judge did not abuse her discre-
tion by denying it.




   1  The members acquitted Appellant of one specification of inde-
cent conduct and one specification of attempted indecent conduct.



                                2
              United States v. Bess, No. 19-0086/NA
                      Opinion of the Court

                         I. Background
    In November 2016, immediately prior to individual voir
dire, while the members were not present, Appellant’s indi-
vidual military counsel stated to the military judge: “The de-
fense has noticed that the panel is all white. . . . [O]ur client
is African-American, and there’s no African-American repre-
sentation on the panel.” Upon further discussion, counsel re-
fined his observation, stating: “I may have misspoke and said
that [the members] were all Caucasian, and that might not be
true. I am fairly confident that there is no African-American
on the panel . . . .” The military judge responded:
       I can’t speak to the racial makeup of our panel. I
       agree with you that I don’t see anyone who I think is
       obviously of the same race as your client, but then
       again, I would not have known, frankly, that he is of
       the race he is, absent reviewing materials of the pre-
       vious case and how his identification was made.
    Trial defense counsel did not inquire about the members’
races during individual voir dire. Following individual voir
dire, the military judge excused five members at defense
counsel’s request—three of which requests the Government
joined—leaving five members on the panel.
    In response to trial counsel’s request that he explain the
basis for his objection to the composition of the panel, individ-
ual military counsel explained: “[I]t’s . . . basically a combina-
tion of an Article 25 challenge and, I guess, it’s almost like a
preventative Batson challenge. If you don’t put any African-
Americans on the panel from the get-go, then you can’t get a
Batson challenge because nobody is getting eliminated based
on their race.” The military judge rejected this challenge be-
cause of the “absen[ce] [of] any evidence of anything inappro-
priate being done by the convening authority in assembling
the panel.”
   Individual military counsel then made an oral discovery
request for a “statistical breakdown of the population as far
as race with respect to the convening authority’s command.”
The military judge denied the request on the grounds the
members’ questionnaires noted their races and had been
available for a week, the request was untimely, acquiring the
data would be impracticable, and the resultant statistics were



                                 3
               United States v. Bess, No. 19-0086/NA
                       Opinion of the Court

not relevant absent evidence of impropriety or a pattern of
discrimination in other panels, which she had not seen.
    Responding to the first reason given by the military judge,
individual military counsel countered: “If you look at the
questionnaires, only some of them have racial information
listed upon the questionnaire.” The military judge noted this
response but did not change her ruling. In addition, appar-
ently responding to the military judge’s statement that she
had not seen any pattern of discrimination, individual mili-
tary counsel said:
       Can I just make a quick record with the last mem-
       bers panel that [the trial counsel], myself, and you
       were on? We had a different African-American cli-
       ent, and also it was an all-white panel. So, this is the
       second time in a row that we’ve been on a case where
       the same issue has occurred.
The military judge replied that she did not believe that two
examples evidenced a pattern.2 Appellant never moved to
stay the proceedings under Rule for Courts-Martial (R.C.M.)



   2  Appellant and amicus NAACP now claim the same convening
authority detailed all-white panels in three other courts-martial in
which the accused was African American. Appellant first intro-
duced this allegation at the NMCCA—not at the court-martial—
through a declaration by the Executive Officer of Defense Service
Office Southeast. The declaration averred the author sent a letter
to the convening authority concerning the racial diversity of mem-
bers detailed in three recent cases (described without further detail
as “United States v. LTJG Johnson,” “United States v. MMC Rol-
lins,” and “United States v. LTJG Jeter”). Without providing a foun-
dation, the letter asserted that in each of those courts-martial, the
accused was African American and all of the members were Cauca-
sian. He did not claim the convening authority knew the race of any
member detailed to those cases or intentionally excluded any per-
son because of race. Rather, he requested minority representation
in his client’s case. While it granted the motion to attach the decla-
ration, the NMCCA made no finding of fact as to the truth of any
matter alleged therein or the race of any panel member. The decla-
ration further avers that upon receiving the letter, the convening
authority amended the court-martial convening order in LTJG
Johnson’s case to include “one African-American, one Hispanic-
American, one Asian-American, one Native-American and one Cau-
casian female member.”



                                  4
              United States v. Bess, No. 19-0086/NA
                      Opinion of the Court

912(b) “on the ground that members were improperly se-
lected.”
    The record demonstrates that the convening authority
had reason to know that Appellant was African American, as
that information was included in a report that summarized
testimony from the complaining witnesses. The record, how-
ever, contains no evidence that the convening authority either
actually knew or had reason to know the races of the members
when he detailed them to Appellant’s court-martial.3 As dis-
cussed infra Part II.C., none of the members selected were
from his command, and all members confirmed during voir
dire they neither personally knew nor worked with the con-
vening authority. Moreover, only one member’s questionnaire
asked for the member’s race. That member checked a box for
“Caucasian.” The other members were not asked, and did not
provide, any information about their races. Though he re-
ceived the trial questionnaires a week before trial, trial de-
fense counsel neither objected to the questionnaires nor re-
quested supplemental questionnaires.4


   3  The NMCCA found that, excepting the one member whose
questionnaire indicated race, there was “no evidence that the CA
knew the race of any of the . . . members detailed to the court-mar-
tial” and “no reason to suspect that the CA personally knew [the
members] and would therefore have known their race.” 2018 CCA
LEXIS 476, at *25, 2018 WL 4784569, at *10. The Courts of Crimi-
nal Appeals have factfinding authority under Article 66, UCMJ, 10
U.S.C. § 866 (2012); under Article 67, UCMJ, 10 U.S.C. § 867
(2012), we do not. See, e.g., United States v. Piolunek, 74 M.J. 107,
110 (C.A.A.F. 2015). Where, as here, a CCA’s findings are neither
clearly erroneous nor unsupported by the record, this Court defers
to those factual findings. United States v. Tollinchi, 54 M.J. 80, 82
(C.A.A.F. 2000).
   4  In his initial written discovery request, Appellant requested
the Government produce “Panel Selection” information, including
court-martial member questionnaires responsive to the items listed
in R.C.M. 912(a)(1), which includes race, “all written matters pro-
vided to the convening authority concerning selection of the mem-
bers detailed to the court-martial” under R.C.M. 912(a)(2), and “all
information known to the government as to the identities of poten-
tial alternate and/or additional panel members.” Appellant never
followed up on these requests, despite filing a supplemental discov-
ery request “highlight[ing] material discovery yet to be delivered”



                                 5
               United States v. Bess, No. 19-0086/NA
                       Opinion of the Court

   After the trial, Appellant’s counsel submitted a request for
clemency to the convening authority, asserting that “[b]ased
on Batson principles, the military judge should have required
the Convening Authority to articulate the non-race based rea-
son for excluding all African-Americans, but [the military
judge] did not. This was prejudicial error.”5 The convening au-
thority denied relief, approving the findings and sentence.
The NMCCA affirmed. 2018 CCA LEXIS 476, at *33, 2018
WL 4784569, at *12.


and, later, a motion to compel “discovery which is material to the
preparation of the defense.” The only material in the record respon-
sive to discovery requests regarding the panel is the member ques-
tionnaires, but the defense never presented the other requests to
the military judge as R.C.M. 912 permits.
   5  Appellant also raised this argument to the military judge, and
the NMCCA. 2018 CCA LEXIS 476, at *23–24, 2018 WL 4784569,
at *9. In his briefing to this Court, Appellant urges a “workable pro-
cess” outside of Article 25, UCMJ, 10 U.S.C. § 825 (2012), wherein:
       First, the defense identifies that the panel does not
       include any members from the same cognizable ra-
       cial group as the accused and raises the issue with
       the military judge before the members are empan-
       eled, requesting to have the convening authority de-
       tail additional members of the same race as the ac-
       cused. The military judge, after appropriately
       inquiring into the matter, then adjourns the voir
       dire proceedings so that the convening authority can
       be notified. Finally, upon notification, the convening
       authority . . . either details additional members on
       the basis of race for the purpose of inclusion or pro-
       vides a race-neutral reason for declining to do so.
Reply Brief for Appellant at 6–7, United States v. Bess, No. 19-0086
(C.A.A.F. July 29, 2019) (emphasis added). There is no procedure to
ensure a particular racial composition in any court in the United
States, and, as discussed infra Part II.A., the legal precedent is to
the contrary. While the process is both different than its civilian
counterpart and the subject of numerous appeals, if what Appellant
seeks is an extraconstitutional and radical overhaul of Article 25,
UCMJ, and the member selection system in the military—a system
that has been in place for a very long time—his suggestions are bet-
ter addressed to Congress. No one has challenged the constitution-
ality or soundness of Article 25, UCMJ, and we decline to judicially
craft a rule encroaching on Congress’s legislative province.




                                  6
               United States v. Bess, No. 19-0086/NA
                       Opinion of the Court

    The NMCCA found the military judge erred in declaring
that the defense objection was untimely and that she was mis-
taken about the content of the questionnaires, but concluded
she did not abuse her discretion. The NMCCA found that the
requested data was “irrelevant” because trial defense counsel
had asked for the racial makeup of the convening authority’s
“command” instead of the convening authority’s “pool of avail-
able members,” and no members were selected from the con-
vening authority’s command. 2018 CCA LEXIS 476, at *22,
2018 WL 4784569, at *8. The NMCCA also rejected the claim
of unlawful command influence, citing a lack of evidence con-
cerning the convening authority’s knowledge of the races of
members detailed to the court-martial. 2018 CCA LEXIS 476,
at *25–27, 2018 WL 4784569, at *9–10. Additionally, the
NMCCA found no precedent to extend Batson v. Kentucky,
476 U.S. 79 (1986), to the convening authority’s selection of
members and held the mere absence of African Americans on
the panel did not demonstrate systematic exclusion. 2018
CCA LEXIS 476, at *23–24, 2018 WL 4784569, at *9.
                          II. Discussion

    The issues in this case are relatively straightforward.
Appellant’s complaint at trial rested on his supposition that
the court-martial didn’t include members of his race; his
complaints on appeal allege violations of the Due Process
Clause of the Fifth Amendment and Article 37, UCMJ,
because he objected to the panel composition and no action
was taken. Moreover, Appellant appears to believe that the
fact a court-martial panel doesn’t include members of an
accused’s race remedies deficient requests for irrelevant
discovery at trial, or otherwise entitles an accused on appeal
to further factfinding at a DuBay6 hearing. His arguments—
both at trial and now—have no support in the law for the
reasons set forth below.
                    A. The Fifth Amendment
    Appellant argues that the convening authority’s selection
of members violated the Fifth Amendment’s implicit guaran-
tee of equal protection of the laws. We review this question of

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




                                 7
               United States v. Bess, No. 19-0086/NA
                       Opinion of the Court

law de novo. See United States v. Riesbeck, 77 M.J. 154, 162
(C.A.A.F. 2018).7
    The sole basis for Appellant asserting a constitutional vi-
olation at trial was his claim that there were no African
American members included on his court-martial panel and
one other. There are several logical flaws with this. First, be-
cause the questionnaires did not have this information, and
because Appellant declined to inquire into the races during
voir dire, we don’t know with certainty what race any member
save one identifies as. Second, there is no constitutional or
statutory right to have members of your own race (or any
other) included on either a court-martial panel or a civilian
jury. See Powers v. Ohio, 499 U.S. 400, 404 (1991). And third,
there is precisely zero evidence that this convening authority
knew or had reason to know the race of the persons he de-
tailed to the court-martial or engaged in any impropriety.
    What the Fifth Amendment provides is not a promise to
include, but rather protection against intentional racial dis-
crimination through exclusion. Cf. Flowers v. Mississippi, 139
S. Ct. 2228, 2242 (2019) (“Equal justice under law requires a
criminal trial free of racial discrimination in the jury selection
process.”); Batson, 476 U.S. at 93 (“As in any equal protection
case, the burden is, of course, on the defendant who alleges
discriminatory selection of the venire to prove the existence
of purposeful discrimination.” (internal quotation marks
omitted) (citation omitted)); United States v. Santiago-Davila,
26 M.J. 380, 390 (C.M.A. 1988) (Fifth Amendment equal pro-
tection includes the “right to be tried by a jury from which no
‘cognizable racial group’ has been excluded.” (quoting Batson,
476 U.S. at 96)).
    Neither in civilian courts nor in a court-martial does the
Fifth Amendment guarantee an accused jurors or members


   7  The Government asserts that we should review the Fifth
Amendment issue for plain error because Appellant at trial did not
specifically argue that a racial group was systematically excluded
from his court-martial panel in violation of the standards set forth
in Castaneda v. Partida, 430 U.S. 482 (1977). We conclude that Ap-
pellant’s citation of Batson, 476 U.S. 79, and reference to a possible
pattern of discrimination in recent cases adequately preserved his
Fifth Amendment arguments.



                                  8
              United States v. Bess, No. 19-0086/NA
                      Opinion of the Court

who are of the same race. See, e.g., Powers, 499 U.S. at 404;
Batson, 476 U.S. at 85; Taylor v. Louisiana, 419 U.S. 522, 538
(1975); Virginia v. Rives, 100 U.S. 313, 323 (1879); United
States v. Adkinson, 916 F.3d 605, 609 (7th Cir. 2019); Sanchez
v. Roden, 753 F.3d 279, 290 (1st Cir. 2014); United States v.
Mitchell, 502 F.3d 931, 952 (9th Cir. 2007); Lowery v. Cum-
mings, 255 F. App’x 409, 420 (11th Cir. 2007); United States
v. Brooks, 161 F.3d 1240, 1246 (10th Cir. 1998); United States
v. Steen, 55 F.3d 1022, 1030 (5th Cir. 1995).
    An accused has an absolute right to a fair and impartial
panel, guaranteed by the Constitution and effectuated by Ar-
ticle 25, UCMJ’s member selection criteria and Article 37,
UCMJ’s prohibition on unlawfully influencing a court-mar-
tial. See also Riesbeck, 77 M.J. at 163. Neither of those articles
requires affirmative inclusion. Rather, Article 25(d)(2),
UCMJ, provides in relevant part: “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 tempera-
ment.” Race is not one of the criteria.8 And by its terms, Arti-
cle 37(a), UCMJ, expressly prohibits the convening authority




   8   This Court has held, however, that the convening authority
may consider race in detailing members if that consideration serves
“deliberately to include qualified persons,” rather than to exclude
members based on race. United States v. Crawford, 15 C.M.A. 31,
41, 35 C.M.R. 3, 13 (1964); see also Riesbeck, 77 M.J. at 163 (Craw-
ford allows a convening authority to “seek[] in good faith to make
the panel more representative of the accused’s race or gender”).
Even these decisions are constitutionally problematic in some
sense, given that they seemingly stem from some notion that an
accused “has a better chance of winning if more members of his race
are on the jury. But that thinking relies on the very assumption
that Batson rejects: that jurors might be partial to the defendant
because of their shared race.” Flowers, 139 S. Ct. at 2270 (Thomas,
J., dissenting) (internal quotation marks omitted) (citation omit-
ted); see also Castaneda, 430 U.S. at 499 (“Because of the many fac-
ets of human motivation, it would be unwise to presume as a matter
of law that human beings of one definable group will not discrimi-
nate against other members of their group.”). In any event, “may”
does not equate to “must.”


                                 9
              United States v. Bess, No. 19-0086/NA
                      Opinion of the Court

from selecting members in an attempt to influence the out-
come of the court-martial, on the basis of race or otherwise.
See infra Part II.C.
    Of course, if a convening authority, in selecting the mem-
bers to detail to a court-martial, intentionally excluded poten-
tial members on the basis of race, the convening authority’s
actions would be unconstitutional. But that is entirely differ-
ent than a mere failure to include, which is what Appellant
complained of at trial, and which many courts, see supra, in-
cluding our Court in United States v. Loving, found insuffi-
cient to support a Fifth Amendment claim. 41 M.J. 213, 285
(C.A.A.F. 1994) (“A prima facie case of systematic exclusion is
not established by the absence of minorities on a single
panel.”).
       B. Request to Extend Batson and Apply Castaneda
   Nevertheless, on appeal Appellant now urges us to apply
the frameworks of either Batson or Castaneda to find that the
absence of African Americans on his panel constitutes an
equal protection violation. We decline this invitation.
                                  1.
    Batson held that, under the Equal Protection Clause, per-
emptory strikes of an African American from the jury venire
may establish a prima facie case of purposeful discrimination,
and once that prima facie case is established, the burden
shifts to the government to provide a race-neutral explana-
tion for the strike. 476 U.S. at 96–97.
       Just as the Equal Protection Clause forbids the
       States to exclude black persons from the venire on
       the assumption that blacks as a group are unquali-
       fied to serve as jurors, so it forbids the States to
       strike black veniremen on the assumption that they
       will be biased in a particular case simply because the
       defendant is black. The core guarantee of equal pro-
       tection, ensuring citizens that their State will not
       discriminate on account of race, would be meaning-
       less were we to approve the exclusion of jurors on the
       basis of such assumptions, which arise solely from
       the jurors’ race.
Id. at 97–98. The Court’s holding further took into account
the fact that peremptory strikes may “permit those to discrim-
inate who are of a mind to discriminate,” id. at 96 (internal


                                10
               United States v. Bess, No. 19-0086/NA
                       Opinion of the Court

quotation marks omitted) (citation omitted), and previous
cases imposed too high a bar by requiring proof of repeated
racial strikes outside of the defendant’s particular case, id. at
92–93. Recognizing the truism that “the Constitution prohib-
its all forms of purposeful racial discrimination in selection of
jurors,” id. at 88, the Court distilled from its broad discussion
of equal protection principles the narrow conclusion that “a
defendant may establish a prima facie case of purposeful dis-
crimination in selection of the petit jury solely on evidence
concerning the prosecutor’s exercise of peremptory challenges
at the defendant’s trial.” Id. at 96.
    Batson procedures do apply in the military justice system
when a party makes a peremptory challenge, Santiago-
Davila, 26 M.J. at 389–90, but the narrow terms of Batson’s
holding neither compel nor impel us to extend it to a conven-
ing authority’s selection of members, the manner of which Ar-
ticle 25, UCMJ, limits and directs, even if his supposition
about the race of his panel’s members was an established fact.
Nor does Appellant cite any precedent that would require ex-
tending Batson’s holding outside the context of peremptory
challenges. Indeed, the only extensions of Batson have been
within the peremptory strike context itself. See Flowers, 139
S. Ct. at 2243 (recognizing application to gender discrimina-
tion, criminal defendant’s peremptory strikes, and civil
cases).9




   9  Other federal and state courts have held that Batson should
not be extended to other contexts. See, e.g., United States v. Elliott,
89 F.3d 1360, 1364–65 (8th Cir. 1996) (“Batson applies only to per-
emptory strikes. We know of no case that has extrapolated the Bat-
son framework to for-cause strikes.”); State v. Gould, 142 A.3d 253,
261 (Conn. 2016) (“[T]he Batson framework has been limited to per-
emptory challenges.”).



                                  11
               United States v. Bess, No. 19-0086/NA
                       Opinion of the Court

                                     2.
    Castaneda is not so limited in scope. Nevertheless, even if
Castaneda’s framework for addressing systematic discrimina-
tion in the selection of grand jurors could be extended to a
convening authority’s selection of court-martial members, it
would not change the outcome in this case. There, in evaluat-
ing a prisoner’s claim alleging systematic discrimination
against Mexican Americans in the selection of members of the
grand jury that indicted him, 430 U.S. at 485–86, the Su-
preme Court held that there is a three-step process for mak-
ing a prima facie showing that a procedure employed for se-
lecting grand jurors violates the Equal Protection Clause. Id.
at 494. The Supreme Court explained:
        The first step is to establish that the group is one
        that is a recognizable, distinct class, singled out for
        different treatment under the laws, as written or as
        applied. Hernandez v. Texas, 347 U.S. [475, 478–479
        (1954)]. Next, the degree of underrepresentation
        must be proved, by comparing the proportion of the
        group in the total population to the proportion called
        to serve as grand jurors, over a significant period of
        time. Id. at 480. . . . Finally, . . . a selection proce-
        dure that is susceptible of abuse or is not racially
        neutral supports the presumption of discrimination
        raised by the statistical showing. Washington v. Da-
        vis, 426 U.S. [229, 241 (1976)]; Alexander v. Louisi-
        ana, 405 U.S. [625, 630 (1972)].
Id.10
    We have not determined whether and how Castaneda ap-
plies in the military justice system where specific criteria for
selecting members exist, see Article 25, UCMJ, none of which
are race, and where deployments and other factors would
likely skew a straight percentage comparison. Yet, in Loving,
we ruled that the absence of minorities on a single court-mar-
tial panel does not make out a prima facie case of systematic
exclusion. 41 M.J. at 285. To support this rule, we noted that
a prima facie case of underrepresentation was established in
Castaneda “by comparing [the] population ‘to the proportion

   10  Though Castaneda itself dealt with grand jurors, its
framework applies to petit jury venires as well. See Batson, 476 U.S.
at 94.



                                   12
              United States v. Bess, No. 19-0086/NA
                      Opinion of the Court

called to serve . . . over a significant period of time.’ ” Id. (in-
ternal quotation marks omitted) (quoting Castaneda, 430
U.S. at 494). In particular, that prisoner presented statistics,
which the government did not contest, showing that 79.1% of
his county’s population was Mexican American, but that over
an eleven-year period, only 39% of grand jurors in the county
were (or appeared to be) Mexican American. Castaneda, 430
U.S. at 486–87.
    Were Castaneda to apply—however imperfectly given the
unique characteristics of the military justice system—we
need decide nothing more than that Appellant fails to meet
the second prong of Castaneda. Appellant and the amicus
NAACP have proffered allegations that within a one-year pe-
riod, the convening authority detailed all-white panels in four
cases. Even if mere allegations constitute competent evidence
(and we do not believe they do), one year is not a “significant
period of time” and would not establish a prima facie case un-
der the Castaneda framework. See, e.g., Hobby v. United
States, 468 U.S. 339, 341 (1984) (seven years was significant
period); Castaneda, 430 U.S. at 487 (eleven years was signif-
icant period); United States v. Quinones, No. 93-10751, 1995
U.S. App. LEXIS 1635, at *30–31, 1995 WL 29500, at *10–11
(9th Cir. Jan. 25, 1995) (unpublished) (one year of data insuf-
ficient); Ramseur v. Beyer, 983 F.2d 1215, 1233 (3d Cir. 1992)
(two years was not significant period); Bryant v. Wainwright,
686 F.2d 1373, 1377–78 (11th Cir. 1982) (minor statistical
variations over five-year period insufficient).11 What we said
in Loving—that the absence of minorities on a single panel
does not make out a prima facie case of systematic exclu-
sion—is likewise true if there are allegations concerning sev-
eral panels over a short period of time. See Bryant, 686 F.2d
at 1379 (for grand jury foreperson selection, “ten selections



   11  Of note, Castaneda itself involved a process wherein the au-
thority selecting grand jurors turned over periodically: under the
“key man” system, the state district judge would appoint three to
five jury commissioners, those commissioners would then select the
pool of grand jurors, and the judge would then test their qualifica-
tions. 430 U.S. at 484. The district judge who impaneled the re-
spondent’s grand jury was in charge for only two and one-half years
of the eleven-year period considered in that case. Id. at 495–96.



                                13
              United States v. Bess, No. 19-0086/NA
                      Opinion of the Court

from a brief three and one-half year period simply is not suf-
ficiently large to allow a meaningful statistical comparison”);
cf. Truesdale v. Moore, 142 F.3d 749, 756 (4th Cir. 1998)
(“[A]llegations of statistical disparity will not suffice to show
a violation of the Fourteenth Amendment where no discrimi-
natory purpose was afoot.”).
    The case law makes clear that even if no African American
members were included in Appellant’s case, a fact that is un-
known, even when combined with other anecdotal allegations
raised by the trial defense counsel and now amici and the ap-
pellate defense counsel, it does not establish a prima facie
case of exclusion based on race. Rather, we cleave to the ordi-
nary rule that without contrary indication, “the presumption
of regularity requires us to presume that [the convening au-
thority] carried out the duties imposed upon him by the Code
and the Manual.” United States v. Wise, 6 C.M.A. 472, 478, 20
C.M.R. 188, 194 (1955); see also United States v. Scott, 66 M.J.
1, 4 (C.A.A.F. 2008) (applying a “presumption of regularity”
to the convening authority’s actions (internal quotation
marks omitted) (citation omitted)). We thus presume the con-
vening authority acted in accordance with Articles 25 and 37,
UCMJ, here. The military judge stated that she had “not seen
any indication of any pattern of discrimination by excluding
minority members” in prior panels, or any indication of im-
propriety by the convening authority. Based on our review of
the record and the pertinent case law, we agree with the mil-
itary judge.12
                     C. Unlawful Influence
    Appellant also fails to show unlawful command influence.
We review such claims de novo. United States v. Salyer, 72
M.J. 415, 423 (C.A.A.F. 2013). Article 37(a), UCMJ, provides
in relevant part: “No person subject to this chapter may at-
tempt to coerce or, by any unauthorized means, influence the


   12  We reject Appellant’s suggestion that the military judge’s de-
nial of his discovery request “compound[ed] the prejudice” by pre-
venting him from producing evidence to support his equal protec-
tion claim. As discussed below in Part II.D., the military judge
properly denied the request because it sought irrelevant infor-
mation and the request would not have furthered Appellant’s equal
protection or unlawful command influence claims.



                                 14
             United States v. Bess, No. 19-0086/NA
                     Opinion of the Court

action of a court-martial or any other military tribunal or any
member thereof, in reaching the findings or sentence in any
case.” Court stacking is a form of unlawful command influ-
ence. Riesbeck, 77 M.J. at 165. For actual unlawful command
influence, the accused must show beyond “mere . . . specula-
tion”: (1) facts, that if true, constitute unlawful command in-
fluence; (2) the prior proceedings were unfair; (3) the unlawful
command influence caused the unfairness. United States v.
Biagase, 50 M.J. 143, 150 (C.A.A.F. 1999).
    On one end of the spectrum are cases like Riesbeck, where
we found unlawful court stacking because, inter alia, the rec-
ord “paint[ed] a clear picture of court stacking based on gen-
der in an atmosphere of external pressure to achieve specific
results in sexual assault cases,” the panel was “seventy per-
cent female, most of whom [were] victim advocates,” the en-
listed pool “was only thirteen percent female,” and the impan-
eling authorities thought it “ ‘very important’ to have a ‘large
number of women’ ” decide the case, 77 M.J. at 164, 166.
    On the other end of the spectrum are cases like United
States v. Lewis, where we found no improper motive when
presented with a statistically high and anomalous number of
women on the panel given the comparatively low number of
women on panels over the preceding three years at the same
air force base. 46 M.J. 338, 339, 341–42 (C.A.A.F. 1997); see
also id. (bare numbers in unit strength report showing total
officers and enlisted members as well as how many were
women “d[id] not adequately reflect the pool of individuals el-
igible and available to serve as court members,” so did not
evidence improper selection). The paucity of evidence here is
even greater than that found to be deficient in Lewis.
    The record shows the convening authority neither knew
nor had reason to know the races of nine of the ten members
whom he detailed to Appellant’s court-martial; it does not re-
veal with certainty the actual racial makeup of Appellant’s
panel; it contains no findings of fact by the NMCCA with re-
spect to allegations regarding the races of members in other
courts-martial, and at most Appellant presents a potential
anomaly with a few cases within a short period of time, with
no evidence whatsoever of intentional discrimination. Appel-
lant fails to carry his burden to show unlawful command in-
fluence by more than mere speculation. With due respect to


                              15
             United States v. Bess, No. 19-0086/NA
                     Opinion of the Court

the dissents, United States v. Bess, __ M.J. __ , __ (5 n.5, 12)
(Ohlson, J., with whom Sparks, J., joined, dissenting)
(C.A.A.F. 2020); id. at __ (2) (Sparks, J., with whom Ohlson,
J., joined, dissenting), the mere absence of African Americans
on Appellant’s panel does not itself raise reasonable doubt as
to the procedure used to select his panel. See supra Part II.A.
    Nor does Appellant show apparent unlawful command in-
fluence—that “an objective, disinterested observer, fully in-
formed of all the facts and circumstances, would harbor a sig-
nificant doubt about the fairness of the proceeding.” United
States v. Boyce, 76 M.J. 242, 249 (C.A.A.F. 2017) (internal
quotation marks omitted) (citation omitted). A fully informed
observer would know the convening authority only knew one
member’s race, that no member knew or worked with the con-
vening authority, and—taking the declaration at face value—
the convening authority was amenable to including diverse
members when asked to do so, which Appellant failed to do
prior to trial. Appellant presents no reasonable grounds for
“an objective, disinterested observer, fully informed of all the
facts and circumstances”—to include the legal fact that no one
is entitled to members of the same race in either a military or
civilian court—to “harbor a significant doubt about the fair-
ness of the proceedings.” Id. (internal quotation marks omit-
ted) (citation omitted).
              D. Appellant’s Discovery Request
    The third assigned issue is whether the NMCCA erred in
affirming the military judge’s denial of the oral discovery re-
quest that Appellant made at trial. We review a military
judge’s ruling on a request for production of evidence for an
abuse of discretion. United States v. Rodriguez, 60 M.J. 239,
246 (C.A.A.F. 2004). A military judge abuses her discretion
when her findings of fact are clearly erroneous or her ruling
is influenced by an erroneous view of the law. United States
v. Freeman, 65 M.J. 451, 453 (C.A.A.F. 2008). A military judge
also abuses her discretion when a “decision . . . is outside the
range of choices reasonably arising from the applicable facts
and the law.” United States v. Criswell, 78 M.J. 136, 141
(C.A.A.F. 2018) (internal quotation marks omitted) (quoting
United States v. Irizarry, 72 M.J. 100, 103 (C.A.A.F. 2013)).




                              16
              United States v. Bess, No. 19-0086/NA
                      Opinion of the Court

   An accused is entitled to production of “relevant and nec-
essary” evidence. R.C.M. 703(f)(1). Appellant requested “a
statistical breakdown of the population as far as race with re-
spect to the convening authority’s command.” The military
judge denied the request on three grounds, and as noted su-
pra Part I, the NMCCA disagreed with her in part but upheld
the denial for a different reason, which is permissible. See
Murr v. Wisconsin, 137 S. Ct. 1933, 1949 (2017) (explaining
that a “judgment below . . . may be affirmed on any ground
permitted by the law and record”); United States v. Robinson,
58 M.J. 429, 433 (C.A.A.F. 2003) (affirming a military judge’s
denial of a motion to suppress evidence where “the military
judge reached the correct result, albeit for the wrong reason”).
    We agree with the NMCCA that the information sought
by Appellant was irrelevant because, in fact, the information
requested had little to do with the available pool of members.
We further conclude that the information requested is not rel-
evant because it would do nothing to add to the legal force of
his observation at trial that he was African American and it
appeared the members were not. Just as the bare population
statistics in the unit strength report in Lewis did “not ade-
quately reflect the pool of individuals eligible and available to
serve as court members,” 46 M.J. at 341–42, so too would Ap-
pellant’s request here not produce relevant information. In
Lewis:
       [w]ith respect to the officer members, [the evidence
       did] not reflect how many officers were ineligible or
       disqualified because of their involvement in law en-
       forcement or the investigation of this case, and it
       [did] not reflect how many were unavailable because
       of absence from the command or operational duties.
       With respect to the enlisted members, the defense
       evidence lack[ed] the same information. In addition,
       it fail[ed] to identify how many enlisted airmen were
       presumptively unqualified because they lacked the
       experience and maturity contemplated by Article 25,
       UCMJ, 10 U.S.C. § 825.
Id. Appellant’s request for a racial breakdown of the conven-
ing authority’s command suffers the same shortcomings.
First, the request covered only the convening authority’s com-
mand, which is only a subset of the total eligible pool of mem-
bers. Second, a racial breakdown alone does not reveal



                                17
              United States v. Bess, No. 19-0086/NA
                      Opinion of the Court

enough detail to discern who would be eligible to serve on a
panel. As Lewis describes, far more factors bear on that de-
termination, see id., and that is the legally relevant question.
    Appellant’s argument is that although trial defense
counsel specifically asked for statistical information
concerning the convening authority’s command, this was
clearly meant to include everyone whom the convening
authority could detail to the court-martial. Appellant asserts
that trial defense counsel’s broad meaning is discernible from
the military judge’s response that the discovery request was
impracticable.
    We agree that the wording of any motion must be under-
stood in the context in which it was made, especially an oral
motion in the middle of a trial. See R.C.M. 905(a). But in this
case, Appellant’s argument about what the context shows is
unpersuasive. Looking at the entire exchange, the most rea-
sonable understanding of Appellant’s request was that he was
seeking only the information that he asked for. Moreover,
even if he had received what he now says he wanted, it would
still do nothing to change the legal landscape.13 The military
judge did not abuse her discretion in denying Appellant’s oral
discovery request.
        E. Appellant is Not Entitled to a DuBay Hearing
    Finally, Appellant argues that, in the alternative, he is en-
titled to a DuBay hearing. A creature of judicial fiat rather
than statute, see United States v. Ginn, 47 M.J. 236, 243
(C.A.A.F. 1997); United States v. Ingham, 42 M.J. 218, 224
(C.A.A.F. 1995), the DuBay hearing was created to permit an
accused to gather additional evidence and resolve conflicting
evidence where (1) an issue, such as ineffective assistance of
counsel, was discovered after trial, see Ginn, 47 M.J. at 244,
or (2) a request made at trial was improperly denied, see

   13  The Castaneda framework and the unlawful influence frame-
work require a proffer of something more than statistical disparity.
As explained above, Appellant still fails the Castaneda requirement
of a comparison of the statistics over a significant period of time,
and the unlawful influence framework requires some evidence of
improper motive. In sum, the mere racial composition of a court-
martial, without more, does not make discovery into the detailing
process relevant and necessary.



                                18
             United States v. Bess, No. 19-0086/NA
                     Opinion of the Court

United States v. Riesbeck, No. 1374, slip op. at 1 (C.G. Ct.
Crim. App. Jan. 20, 2015). The goal in either case is to develop
a record so that the appellate court can resolve the issues pre-
sented. United States v. Flint, 1 M.J. 428, 429 (C.M.A. 1976).
But it is decidedly not the case that a DuBay hearing is either
necessary or warranted in an instance, such as this case,
where there was no effort made at trial to develop a record on
any relevant facts, and the claims on appeal rest on pure spec-
ulation. Cf. Ingham, 42 M.J. at 224.
    We have long held that where a post-trial claim is inade-
quate on its face, or facially adequate yet conclusively refuted
by the record, such a hearing is unnecessary. United States v.
Campbell, 57 M.J. 134, 138 (C.A.A.F. 2002). “[T]he threshold
triggering further inquiry should be low, but it must be more
than a bare allegation or mere speculation.” United States v.
Johnston, 39 M.J. 242, 244 (C.M.A. 1994). Because the appel-
lant in Johnston showed “not a scintilla of evidence” of unlaw-
ful command influence, the Court declined to order a hearing.
Id. at 244–45. And that’s what we face in this case: “not a
scintilla of evidence” the convening authority even knew the
race of more than one person detailed to the panel or had any
malintent in exercising his duty under Article 25, UCMJ.
Moreover, the population statistics Appellant now seeks
would, as in Lewis, prove nothing.
    This case differs from Riesbeck. There, defense counsel at
trial produced evidence that, inter alia, the member question-
naires indicated each member’s gender; the convening order
was amended multiple times to add women; the final panel
had seven women, five of whom were victim’s advocates; and
defense counsel produced the rosters of potential members.
United States v. Riesbeck, No. 1374, 2014 CCA LEXIS 946, at
*7–11 (C.G. Ct. Crim. App. Aug. 5, 2014) (unpublished). It
similarly differs from cases like United States v. Sales, where
“there [was] a reasonable probability that there would have
been a different result if the factual conflicts among the affi-
davits were resolved in appellant’s favor” regarding his inef-
fective assistance of counsel claim. 56 M.J. 255, 258 (C.A.A.F.
2002). These cases presented a dispute of material fact or oth-
erwise raised a reasonable possibility of a colorable claim that
could be developed through a DuBay hearing. The record here
does neither: only one questionnaire indicated race; there is


                              19
             United States v. Bess, No. 19-0086/NA
                     Opinion of the Court

zero evidence that the convening order was amended to add
or remove racially representative members for this particular
case;14 the record does not reflect with certainty the actual
racial composition of Appellant’s panel. Appellant’s specula-
tive assertions do not merit a DuBay hearing.
    And the military judge did not erroneously deny Appel-
lant’s opportunity to develop the equal protection and unlaw-
ful command influence claims—fully articulated only on ap-
peal—which were grounded in truth on nothing more than
suppositions about the racial composition of his panel. First,
the military judge properly denied his mid-voir dire oral dis-
covery request. See supra Part II.D. Second, while Appellant
did include a broader request for panel selection information
in an initial discovery request and the record does not show
what—beyond the member questionnaires—he received in re-
turn, this appeared not to concern Appellant at the time. See
supra note 4.
    Appellant’s supplemental discovery request did not reiter-
ate the request for panel selection information; Appellant’s
subsequent motion to compel did not ask for the information;
the military judge thus made no ruling with respect to the
request for panel selection information in that June 2016 re-
quest; and Appellant did not assign any errors at this Court
or the NMCCA regarding that June 2016 discovery request,
see supra Part I; Bess, 2018 CCA LEXIS 476, at *2–3, 2018
WL 4784569, at *1. Nor did Appellant move to stay the pro-
ceedings on the ground that improper selection criteria were
used by the convening authority. See R.C.M. 912(b)(1).
    To the extent Appellant now seeks information that was
available yet neither requested nor pursued at trial, Appel-
lant has waived any right to further exploration in a DuBay
hearing. See United States v. Curtis, 44 M.J. 106, 133
(C.A.A.F. 1996) (“If the defense wanted to explore the conven-
ing authority’s role and knowledge [in appointing members],
they could have raised this issue at trial. Because it was not
raised at trial, we hold that this issue was waived.”).



   14 The single change to the convening order appears to be only
in response to Appellant’s request for enlisted representation.



                               20
           United States v. Bess, No. 19-0086/NA
                   Opinion of the Court

                     III. Conclusion
   The decision of the United States Navy-Marine Corps
Court of Criminal Appeals is affirmed.




                            21
             United States v. Bess, No. 19-0086/NA


   Judge MAGGS, concurring in part and concurring in the
judgment.
    I concur in the judgment affirming the U.S. Navy-Marine
Corps Court of Criminal Appeals, and I join all of the Court’s
opinion except for Part II.B.1. In Part II.B.1., Judge Ryan,
joined by Chief Judge Stucky, concludes that Appellant’s ar-
gument based on Batson v. Kentucky, 476 U.S. 79 (1986),
lacks merit. I agree that Appellant’s argument lacks merit
but, as I explain below, my reasoning is different.
                          I. Analysis
    Appellant makes two arguments advancing his claim un-
der the Fifth Amendment. One argument is based on Cas-
taneda v. Partida, 430 U.S. 482 (1977), a decision concerning
the selection of grand jurors. Appellant acknowledges that
“Castaneda is not a perfect fit as precedent” given the differ-
ences between court-martial panel selection and grand jury
selection. But Appellant argues that we should adapt Cas-
taneda’s analysis for deciding when court-martial member se-
lection violates the equal protection guarantee implicit in the
Fifth Amendment. He asserts that, under Castaneda as it
should be adapted to the military justice system, he has es-
tablished a prima facie equal protection violation by showing
(1) that he is African American, (2) that “African-Americans
were not only excluded from (and underrepresented on) the
panel in [his] case, but in a series of cases,” and (3) that “the
selection process set out in Article 25, UCMJ, is susceptible
to abuse due to the inherent subjectivity involved.”
     In addressing Appellant’s argument, the Court recognizes
that “[w]e have not determined whether and how Castaneda
applies in the military justice system.” The Court then de-
cides that resolving these constitutional issues is unnecessary
because the record does not establish one of the factual pred-
icates of Appellant’s argument. The Court explains: “Were
Castaneda to apply—however imperfectly given the unique
characteristics of the military justice system—we need decide
nothing more than that Appellant fails to meet the second
prong of Castaneda.” Put simply, for reasons the Court
demonstrates, the record does not establish that African
Americans in fact have been excluded from panels for a sig-
nificant period. I agree with the Court’s restrained approach.
              United States v. Bess, No. 19-0086/NA
                   Judge MAGGS, concurring

There is no need to decide how Castaneda might apply in the
military justice system when the facts do not present the is-
sue. See City of W. Covina v. Perkins, 525 U.S. 234, 244 (1999)
(reasoning that when the record “undermines the factual
predicate for [an] . . . argument . . . we need not discuss it fur-
ther”).
    Appellant’s other argument advancing his Fifth Amend-
ment claim is based on Batson, a case concerning peremptory
challenges to members of the venire. Appellant recognizes
that the Batson precedent is also “not a perfect fit” in a case
involving a convening authority’s selection of panel members,
but he argues that the Court can use Batson as a “guidepost.”
Appellant contends that if (1) “the defense identifies that the
panel does not include any members from the same cogniza-
ble racial group as the accused” and (2) “raises the issue with
the military judge before the members are empaneled,” then
the equal protection principle in Batson requires the conven-
ing authority either to “detail[] additional members on the ba-
sis of race for the purpose of inclusion or provide[] a race-neu-
tral reason for declining to do so.”
    In my view, the Court ought to address Appellant’s Batson
argument in the same restrained manner that it addresses
Appellant’s Castaneda argument. Specifically, we need decide
nothing more than that the record does not establish the fac-
tual predicate for Appellant’s proposed constitutional test.
For the reasons thoroughly explained by the Court, the record
in this case does not establish that the “panel [did] not include
any members from the same cognizable racial group as the
accused.”1 Accordingly, we do not need and have no reason to
decide the important and difficult issues of whether or how
Batson hypothetically might apply to member selection by the


   1 I see no reason to question the good faith of Appellant and his
counsel in assuming that none of the panel members at his court-
martial was African American based on outward appearances. But
this Court cannot rely on this assumption in deciding this case be-
cause nothing in the record provides a basis for concluding that the
assumption is correct. The military judge made no finding as to the
members’ races and explained that she was uncertain of their races
based on their appearances. She properly refused to infer their
races based on stereotypes.




                                 2
             United States v. Bess, No. 19-0086/NA
                  Judge MAGGS, concurring

convening authority. For this reason, I do not join Part II.B.1.
of the Court’s opinion.
    The conclusion that Appellant has not established the fac-
tual predicate necessary for his Batson argument raises the
question whether we should order a hearing pursuant to
United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967),
to allow Appellant to discover the race of each of the members
at his court-martial. Our decision in United States v. Curtis,
44 M.J. 106 (C.A.A.F. 1996), on reconsideration, 46 M.J. 129
(C.A.A.F. 1997), answers this question. In Curtis, the appel-
lant requested a DuBay hearing to determine whether the
convening authority knew that he could have appointed a
panel of all enlisted members under Article 25, UCMJ, 10
U.S.C. § 825. 44 M.J. at 132. We rejected the request for the
DuBay hearing, explaining: “If the defense wanted to explore
the convening authority’s role and knowledge, they could
have raised this issue at trial. Because it was not raised at
trial, we hold that this issue was waived.” Id. at 133.
    The same conclusion follows here. The inadequate record
regarding the members’ races in this case was not inevitable.
Appellant could have insisted, through a motion to compel,
that all of the questionnaires submitted to the members
asked the members to identify their races. See Rule for
Courts-Martial       912(a)(1)(C)      (expressly     requiring
questionnaires to include this question upon the request of
defense counsel). Appellant, however, made no such motion.
Although Appellant timely requested that trial defense
counsel submit questionnaires to each of the members the
convening authority detailed to his panel, he did not move to
compel that all the questionnaires include a question
regarding the member’s race. And even after Appellant had
seen the members detailed to his court-martial, and had
raised an issue about the composition of the panel, he gave up
a second opportunity to inquire about their races. Both sides
agreed at oral argument that trial defense counsel could have
asked the members during individual voir dire to identify
their races, but trial defense counsel did not do so. Because
Appellant did not avail himself of either of these opportunities
to determine the races of the members of his panel, he has
waived any right to further discovery regarding the members’
races in a DuBay hearing.




                               3
             United States v. Bess, No. 19-0086/NA
                  Judge MAGGS, concurring

                        II. Conclusion
    For these reasons, I agree with the conclusion in Part
II.B.1. that Appellant’s Batson argument lacks merit. But I
would not resolve the legal questions of whether or how Bat-
son principles might apply to member selection by the con-
vening authority because those questions are not presented
by the facts. Given that there is no majority view on those
issues in this case, they remain open for decision if the record
in a case ever properly presents them.




                               4
             United States v. Bess, No. 19-0086/NA


   Judge OHLSON, with whom Judge SPARKS joins, dis-
senting.
    The record before this Court unquestionably compels the
remand of this case for an evidentiary hearing in order to en-
sure that Appellant’s court-martial was not subject to the per-
nicious effects of unlawful command influence, and to ensure
that Appellant’s constitutional right to equal protection under
the Fifth Amendment was not violated by the impermissible
exclusion of panel members on the basis of race. Because the
majority holds to the contrary, I must respectfully dissent.
              I. Unlawful Command Influence
    Issue II in this case reads as follows: “Whether the con-
vening authority’s selection of members constituted unlawful
command influence.” United States v. Bess, 79 M.J. 46
(C.A.A.F. 2019) (order granting review). As we recently held
in United States v. Boyce, 76 M.J. 242, 248 (C.A.A.F. 2017),
“[T]he appearance of unlawful command influence [exists]
where an objective, disinterested observer, fully informed of
all the facts and circumstances, would harbor a significant
doubt about the fairness of the proceedings.” Thus, it is nec-
essary to begin an analysis of this case by reviewing “all the
facts and circumstances” relevant to the issues before us.
   The filings and the joint appendix reflect the following:
      Appellant was an African American male who was
       charged with sex-related offenses. His accusers were
       white females.

      Appellant’s defense was mistaken identity caused by
       difficulties with cross-racial identification. Specifi-
       cally, Appellant argued that his white accusers con-
       fused him with a different but similar-looking African
       American male who also worked as an x-ray technician
       at the hospital where the offenses occurred. Brief for
       Appellant at 12–20, United States v. Bess, No. 19-0086
       (C.A.A.F. June 19, 2019).

      As in all criminal cases in the military, the commander
       who convened Appellant’s court-martial personally se-
       lected the venire panel. That is, he selected the pool of
                 United States v. Bess No. 19-0086/NA
                     Judge OHLSON, dissenting

          personnel from which the court-martial panel mem-
          bers (i.e., the jurors) ultimately would be chosen. Thus,
          it is essential to note that there was nothing random
          about the selection of the venire panel in this case. See
          Articles 22 and 23, Uniform Code of Military Justice
          (UCMJ), 10 U.S.C. §§ 822, 823 (2012).
         As soon as the members of the venire panel walked into
          the courtroom, Appellant observed that each and every
          one of them appeared to be white.1
         During voir dire, trial defense counsel challenged the
          racial composition of the panel. He pointed out to the
          military judge that all of the panel members appeared
          to be white, and he also noted that this was the second
          court-martial in a row where the accused was African
          American but all of the panel members appointed by
          this particular convening authority appeared to be
          white.2 Trial defense counsel characterized his motion

   1 In a request for clemency after Appellant’s conviction, trial de-
fense counsel described the scene in the courtroom as follows:
          At the beginning of the trial, a white military judge,
          asked a white bailiff, to call in the all-white military
          venire panel. As the white defense attorneys and the
          white prosecutors stood at attention as the panel
          members filed in, it was difficult to reassure HM2
          Bess as he leaned over to ask, “Why aren’t there any
          black people?” This all-white panel would hear evi-
          dence from the four complaining witnesses in the
          case—each of them white.
   2 In a sworn declaration written after Appellant’s court-martial
but included in the Joint Appendix to this case, Commander Chris-
topher W. Czaplak, JAGC, USN, the Executive Officer of Defense
Service Office Southeast, cited a letter he sent to the Commander,
Navy Region Mid-Atlantic, which stated in relevant part:
          There is an appearance in the Central Judicial Cir-
          cuit that race is being improperly considered when
          selecting members for General Court-Martial Con-
          vening Orders. In a number of cases, most recently
          United States v. HM2 Bess, United States v. MMC
          Rollins, and United States v. LTG Jeter where de-
          fense counsel have raised this issue, African-Ameri-
          cans were convicted in the Central Judicial Circuit
          by all-white panels. All of the members detailed [by




                                     2
                 United States v. Bess No. 19-0086/NA
                     Judge OHLSON, dissenting

        “almost like a preventative Batson challenge.”3




       the convening authority] to the courts-martial of
       these accused were Caucasian. By contrast, minority
       members have been detailed to cases involving Cau-
       casian accused facing court-martial for sexual as-
       sault . . . .
    Further, an amicus brief submitted to this Court by the NAACP
Legal Defense & Educational Fund, Inc., states that during the
course of one year this particular convening authority “detailed four
all-white panels for four Black defendants charged with sex-related
offenses.” Brief of Amicus Curiae NAACP Legal Defense & Educa-
tion Fund, Inc., in Support of Appellant at 11, United States v. Bess,
No. 19-0086/ (C.A.A.F. June 28, 2019) (emphasis added) [hereinaf-
ter Brief of Amicus NAACP]. Only eighteen general courts-martial
went to trial over that same period. Id. (citing U.S. Navy Judge Ad-
vocate        Gen.’s       Corps,       Results        of       Trial,
https://www.jag.navy.mil/news/ROT_2016.htm (last visited June
14, 2019); U.S. Navy Judge Advocate Gen.’s Corps, Results of Trial,
https://www.jag.navy.mil/news/ROT_2017.htm (last visited June
14, 2019)).
   3Trial defense counsel explained to the military judge what he
meant by a “preventative Batson challenge”:
       If you don’t put any African-Americans on the panel
       from the get-go, then you can’t get a Batson chal-
       lenge because nobody is getting eliminated based on
       their race. It is almost as though [the] command is
       preventing [African Americans] from representation
       on the panel so that [the prosecution] can avoid a
       Batson challenge. . . .

          ....

          . . . With respect to the evidence and the burden,
       with a Batson challenge, the burden would be on the
       attorney challenging that member to show evidence
       why they are challenging that member but for the[ir]
       race, so we would argue that, by avoiding a Batson
       challenge, by not putting . . . African-Americans on
       the panel, the same burden should apply to the peo-
       ple [i.e., the convening authority and those acting on
       behalf of the convening authority] that didn’t put
       any African-Americans on the panel.




                                  3
              United States v. Bess No. 19-0086/NA
                  Judge OHLSON, dissenting

      In furtherance of his motion, trial defense counsel spe-
       cifically asked the military judge to give him the op-
       portunity to discover the “statistical breakdown of the
       population as far as race with respect to the convening
       authority’s command.” The military judge denied the
       defense motion.

      Appellant was subsequently convicted by the panel
       members and sentenced to prison.
   Based on these facts, would “an objective, disinterested ob-
server . . . harbor a significant doubt about the fairness of the
proceedings”? Boyce, 76 M.J. at 248. In light of the current
state of the record, the answer is an unequivocal and em-
phatic, “Yes.”
    Because of the grave and broad implications of this
matter, however, it is important that this Court not
prematurely reach any conclusions—or cast any aspersions—
regarding precisely what happened in this, and similarly
situated, cases. Simply stated, we need more information.
Accordingly, at this juncture I merely seek to remand this
case for a DuBay hearing so that additional facts can be
developed and included in the record.4 DuBay, 17 C.M.A. at
147, 37 C.M.R. at 411.
    Indeed, that is exactly what occurred in the recent case of
United States v. Riesbeck, 77 M.J. 154 (C.A.A.F. 2018), which
also involved the issue of unlawful command influence
resulting from a convening authority’s selection of court-
martial members. Specifically, in that case there were
allegations of        “court stacking” because of the
disproportionately large number of females selected to serve
on the court-martial panel of a servicemember charged with
rape, and the court below “ordered a post-trial hearing in
accordance with DuBay . . . to receive testimony and evidence
regarding the composition of Appellant’s court-martial
panel.” Id. at 159–60, 163. Surely a DuBay hearing is
similarly reasonable, appropriate, and prudent in the instant

   4  Ordering a factfinding “DuBay hearing” is an often-used prac-
tice in the military when information relevant to deciding an issue
before the Court is not “apparent on the face of the record.” United
States v. DuBay, 17 C.M.A. 147, 149, 37 C.M.R. 411, 413 (1967).




                                 4
               United States v. Bess No. 19-0086/NA
                   Judge OHLSON, dissenting

case.5 And yet, the majority inexplicably has chosen to
foreclose this basic and necessary avenue of inquiry.
    In concluding that no DuBay hearing is necessary, the ma-
jority assumes—and rests its holding on the conclusion that—
“[t]he record shows the convening authority neither knew nor
had reason to know the races of nine of the ten members
whom he detailed to Appellant’s court-martial.” But the rec-
ord reveals no such thing. In actuality, the record is devoid of
any information regarding what the convening authority
knew about the race of the members he selected or how he
selected those members for Appellant’s court-martial panel.
               II. The Defense Discovery Motion
   The majority’s decision to affirm the Navy-Marine Corps
Court of Criminal Appeals is particularly surprising because
even if we were to remove our analysis of this case from an
unlawful command influence context and instead analyze it
simply as a mundane discovery motion, a remand for a DuBay


   5  The types of questions that could be answered in the course of
a DuBay hearing are self-evident: Were there any African Ameri-
cans on the panel at Appellant’s court-martial? What was the racial
composition of the pool of potential panel members from which the
convening authority could have selected? Was the convening au-
thority aware of the race of the members he detailed, either through
personal knowledge or through documents or other information
presented to him? What was the process the convening authority
used in selecting members for Appellant’s court-martial? Did the
convening authority’s subordinate commanders or the staff judge
advocate (or other staff members) screen potential panel members
based on race, thereby effectively excluding African Americans
from the convening authority’s consideration? How did the conven-
ing authority know how to identify minority members to be added
to a later court-martial when that African American defendant sim-
ilarly objected to the original all-white panel? See United States v.
Bess, __ M.J. __ , __ (4 n.2) (C.A.A.F. 2020). In how many instances
did the same convening authority convene an all-white venire panel
when the accused was a member of a racial minority, and in how
many instances were these members of a racial minority accused of
sex-related offenses? If the answers responsive to the questions
above are supportive of Appellant’s position, can the convening au-
thority identify race-neutral reasons why he appointed all-white
panels in several cases where an African American was accused of
sex-related offenses?




                                 5
               United States v. Bess No. 19-0086/NA
                   Judge OHLSON, dissenting

hearing still would be clearly warranted.6 This conclusion is
supported by the following points.
    In essence, trial defense counsel was making an oral dis-
covery motion when he asked the military judge to give him
the opportunity to discover the “statistical breakdown of the
population as far as race with respect to the convening au-
thority’s command.” The standard we use in reviewing a mil-
itary judge’s discovery ruling is an abuse of discretion. United
States v. Rodriguez, 60 M.J. 239, 246 (C.A.A.F. 2004) (citing
United States v. Breeding, 44 M.J. 345, 349 (C.A.A.F. 1996)).
By definition, the military judge in this case abused her dis-
cretion because her ruling on the motion was grounded in her
misunderstanding of both the law and the facts. See United
States v. Graner, 69 M.J. 104 (C.A.A.F. 2010).
   First, the military judge concluded that Appellant’s dis-
covery motion was untimely. Specifically, she stated:
       [W]e’ve all had the members’ questionnaires for a
       week, and the race that each member most strongly
       identifies with is noted on the questionnaires. If this
       was an issue that you wanted to raise prior to now,
       when we are in individual voir dire, that would have
       been a more appropriate time.
(Emphasis added.) Her reasoning, however, was faulty—both
factually and legally. The factual assertion that the race of
each member was noted on the questionnaires was
inaccurate. For unexplained reasons, only one of the
questionnaires listed race. Moreover, as we noted in Riesbeck,
Rule for Courts-Martial (R.C.M.) 912(b)(3) “provides an
exception to the requirement that a timely motion be made
where an objection is based on an allegation that the
convening authority selected members for reasons other than
those listed in Article 25, UCMJ.”7 77 M.J. at 160 (emphasis


   6  Issue III in this case reads as follows: “Whether the lower
court erred in affirming the military judge’s denial of Appellant’s
motion to produce evidence of the racial makeup of potential mem-
bers.” Bess, 79 M.J. at 47.
   7 Article 25(e)(2), UCMJ, states  in relevant part: “When conven-
ing a court-martial, the convening authority shall detail as mem-
bers thereof such members of the armed forces as, in his opinion,
are best qualified for the duty by reason of age, education, training,




                                  6
              United States v. Bess No. 19-0086/NA
                  Judge OHLSON, dissenting

added). Thus, the military judge was wrong when she ruled
that Appellant’s discovery motion was untimely when he
raised it during voir dire.
    Second, the military judge erred in basing her ruling on
her unsubstantiated belief that obtaining statistical infor-
mation about Navy personnel would be a difficult “feat,” stat-
ing that she had “no idea how the command would go about
accomplishing” this task. There was no evidence adduced at
the court-martial which supported this contention that it
would be difficult to obtain the requested information, and in
fact, intuitively the opposite is true; the military is very adept
at tabulating data about its personnel and that information
is readily available.8 Therefore, the military judge’s pur-
ported finding of fact was not supported by the record and is
an abuse of discretion. See United States v. Gore, 60 M.J. 178,
185 (C.A.A.F. 2004).
    Third, the military judge erred both factually and legally
when she ruled that the information sought by trial defense
counsel was irrelevant to his claim that the convening author-
ity had improperly excluded African American servicemem-
bers from the court-martial panel. Specifically, the military
judge averred:
       I don’t see, frankly, how it is relevant, absent any
       evidence of impropriety. I have sat on numerous
       panels and observed members of other panels while
       here, and I have not seen any indication of any
       pattern of discrimination by excluding minority
       members.
    To begin with, the military judge herself had previously
acknowledged that trial defense counsel’s argument would be
“slightly stronger” if he “knew more information about the ra-
cial and statistical makeup of the pool of members for that
particular convening authority.” Thus, she conceded that the
information was relevant. But then when trial defense coun-
sel requested that type of information in order to support his

experience, length of service, and judicial temperament.” 10 U.S.C.
§ 825(e)(2).
   8      See,    e.g.,   U.S.   Navy   Demographic      Data,
https://www.navy.mil/strategic/Navy_Demographics_Report.pdf
(last visited on May 8, 2020).




                                7
              United States v. Bess No. 19-0086/NA
                  Judge OHLSON, dissenting

argument, the military judge executed an about-face and de-
nied his request.
    Further, in ruling on the discovery motion, the military
judge claimed she could not determine the race of the mem-
bers of the panel based on her personal observations. How-
ever, at virtually the same time she claimed that based on her
personal observations of other panels, she could determine
there was no pattern of discrimination based on the race of
the members. To put it charitably, these claims are in tension
with one another. Moreover, in making these claims the mili-
tary judge used her personal observations—rather than in-
court evidence—to find the defense discovery request was not
relevant. Again, this constituted an abuse of discretion. See
Gore, 60 M.J. at 185.
    It is evident that relevant statistical information regard-
ing the convening authority’s command would have been in-
strumental in supporting—or refuting—Appellant’s claim
that there had been an improper exclusion of members from
the court-martial panel on the basis of race. And yet, the ma-
jority asserts that Appellant’s claim must fail because the dis-
covery motion at trial “covered only the convening authority’s
command, which is only a subset of the total eligible pool of
members.” The majority’s concern is misplaced. In United
States v. Datz, 61 M.J. 37, 42 (C.A.A.F. 2005), this Court
properly noted that an oral motion or objection made during
a court-martial must be considered in context to determine if
the basis for the motion was sufficiently clear to the military
judge. Here, it was clear to everyone at the court-martial ex-
actly what the defense was seeking—information that would
help to determine whether there was an improper exclusion
of members from the venire panel on the basis of race.
    In light of the fact that trial defense counsel already had
noted that this was the second case in which an African
American servicemember accused of a sex-related offense was
tried by a hand-selected panel that appeared to be all white,
the military judge’s blanket refusal to let trial defense counsel
simply “peer behind the curtain” at how the convening
authority had selected these panel members was an abuse of
discretion. Thus, contrary to the military judge’s ruling, trial
defense counsel should have been permitted to obtain such




                               8
               United States v. Bess No. 19-0086/NA
                   Judge OHLSON, dissenting

information. Because the military judge abused her discretion
in deciding this matter, the instant case should be remanded
for a DuBay hearing so that the information may now be
obtained.
 III. Appellant’s Constitutional Right to Equal Protection
                Under the Fifth Amendment
    Even standing alone, the two issues cited above—i.e., Ap-
pellant’s unlawful command influence claim and the military
judge’s abuse of discretion in resolving Appellant’s discovery
motion—provide compelling and conclusive reasons mandat-
ing the remand of this case for a DuBay hearing. And that is
before I even have had the opportunity to address Issue I,
which serves as the very core of Appellant’s claim; namely,
whether the convening authority’s selection of members vio-
lated his constitutional right to equal protection under the
Fifth Amendment.9
   In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme
Court made the following observation:
           More than a century ago, the Court decided that
       the State denies a black defendant equal protection
       of the laws when it puts him on trial before a jury
       from which members of his race have been purposely
       excluded. Strauder v. West Virginia, 100 U.S. 303
       (1880). That decision laid the foundation for the
       Court’s unceasing efforts to eradicate racial discrim-
       ination in the procedures used to select the venire
       from which individual jurors are drawn.
Id. at 85 (emphasis added).

   9   The majority characterizes Appellant’s Fifth Amendment
claim as one seeking “to have members of [his] own race . . . included
on . . . [his] court-martial panel.” Although trial defense counsel’s
initial objection stated, “[O]ur client is African-American, and
there’s no African-American representation on the panel,” he later
clarified that the basis for his objection was a “preventative Batson
challenge.” In doing so, trial defense counsel explained, “If you don’t
put any African-Americans on the panel from the get-go, then you
can’t get a Batson challenge because nobody is getting eliminated
based on their race.” Thus, contrary to the majority’s portrayal, Ap-
pellant’s claim is rooted not in a failure to include African Ameri-
cans on the panel, but in the possible intentional exclusion of poten-
tial members on the basis of race.




                                  9
              United States v. Bess No. 19-0086/NA
                  Judge OHLSON, dissenting

    Consistent with this line of jurisprudence, the Supreme
Court has unequivocally held that “the systematic exclusion
of [African Americans in the jury selection process] is . . . an
‘unequal application of the law.’ ” Castaneda v. Partida, 430
U.S. 482, 493 (1977) (quoting Washington v. Davis, 426 U.S.
229, 241 (1976)). Similarly, the Supreme Court has held that
the equal protection component of the Due Process Clause of
the Fifth Amendment prohibits the United States from en-
gaging in governmental action that “invidiously discrimi-
nat[es] between individuals or groups.” Washington, 426 U.S.
at 239. In United States v. Santiago-Davila, this Court made
clear that this equal protection component of the Fifth
Amendment applies to the military, holding that the “equal-
protection right to be tried by a jury from which no ‘cognizable
racial group’ has been excluded” applies to courts-martial
panels with the same force as it applies to civilian juries. 26
M.J. 380, 390 (C.M.A. 1988) (quoting Batson, 476 U.S. at 96).
    Although Batson holds that the Equal Protection Clause
“forbids the prosecutor to challenge potential jurors solely on
account of their race,” the constitutional scope of that opin-
ion—if not its literal holding—extends beyond the context of
peremptory challenges during voir dire. Batson, 476 U.S. at
89 (emphasis added). First, in Batson the Supreme Court spe-
cifically noted that “the Constitution prohibits all forms of
purposeful racial discrimination in selection of jurors.” Id. at
88 (emphasis added). Second, as noted earlier, the Supreme
Court in Batson tellingly referred to the need “to eradicate
racial discrimination in the procedures used to select the ve-
nire from which individual jurors are drawn.” Id. at 85 (em-
phasis added). And third, it simply cannot be the state of the
law that the shield of the Fifth Amendment is strong enough
to protect an African American defendant from the impermis-
sible exclusion of panel members on the basis of race during
voir dire, but is impotent in similarly protecting those service-
members during the selection of the venire panel in the first
instance. Id. at 86.
   The uniqueness of the role of the convening authority in
the military justice system underscores the importance of this
point. Unlike in the civilian jury system, venire pools in the
military are not chosen at random from, for example, voter
registration rolls or Department of Motor Vehicles databases.




                               10
               United States v. Bess No. 19-0086/NA
                   Judge OHLSON, dissenting

Rather, a convening authority has significant and broad dis-
cretion to detail to the court-martial panel anyone who, “in
his opinion, [is] best qualified for the duty.” Article 25(e)(2),
UCMJ. Accordingly, the convening authority “has the func-
tional equivalent of an unlimited number of peremptory chal-
lenges.” United States v. Carter, 25 M.J. 471, 478 (C.M.A.
1988) (Cox, J., concurring) (emphasis added). Thus, the fun-
damental equal protection principles espoused in Batson
must apply broadly to the entire jury-selection process—to
specifically include the convening authority’s selection of the
venire panel—to ensure that the constitutional rights of ac-
cused servicemembers are protected.10
    In the instant case, Appellant properly and timely sought
to avail himself of his constitutional rights by challenging the
composition of the venire panel during voir dire.11 And yet,


   10  In Castaneda, a case relied upon by the Batson court, the Su-
preme Court outlined the process by which an accused could make
a prima facie showing of an equal protection violation in the context
of grand jury selection. 430 U.S. at 494–95. The second step of the
analysis requires an accused to prove the underrepresentation of a
cognizable racial group in the pool of those called to serve as grand
jurors “over a significant period of time.” Id. at 494. The majority
implies that Castaneda requires an accused to produce data cover-
ing a lengthy number of years before a court could intervene to halt
pernicious racial discrimination. However, the majority fails to ex-
plain how their expansive time frame fits within the unique fea-
tures of the military justice system. Convening authorities serve in
their roles for a finite period of time, often for a few years or less.
In the instant case, for example, the convening authority served
from March 10, 2016, to July 20, 2018, for a total of just twenty-
seven months. Brief of Amicus NAACP, supra note 2, at 20. Thus,
under the majority's view of Castaneda, the constitutional right to
equal protection would be essentially unenforceable in the military
where a convening authority serves in that particular role for less
than a lengthy number of years—as happened in Appellant’s case.
   11  The majority faults Appellant for failing to ask the convening
authority to “includ[e] diverse members [on his court-martial panel]
. . . prior to trial.” However, Appellant did not raise his Fifth
Amendment claim prior to trial because only one of the ten deficient
member questionnaires created by the Government listed race, and
thus Appellant was not aware of the suspicious nature of his all-
white panel until he saw the members for the first time in court
during voir dire. As soon as Appellant learned the racial composi-




                                  11
               United States v. Bess No. 19-0086/NA
                   Judge OHLSON, dissenting

the military judge thwarted his efforts by improperly denying
his discovery motion. This Court must now remedy this error,
and can begin doing so by simply remanding this case for an
evidentiary hearing so that the facts can be gathered that will
either expose and rectify an invidious pattern of racial dis-
crimination in the member-selection process, or reveal Appel-
lant’s court-martial to be a mere “anomaly . . . with no evi-
dence whatsoever of intentional discrimination.” Bess, __ M.J.
at __ (15) (C.A.A.F. 2020). Only then can we be assured that
Appellant’s constitutional rights have been protected.
                          IV. Conclusion
    When a member of our Armed Forces makes a prima facie
showing of a violation of his constitutional right to equal
protection under the Fifth Amendment based on the
intentional and impermissible exclusion of African Americans
from a court-martial panel hand-selected by a convening
authority, a remand for an evidentiary hearing is mandated.
Indeed, as we recently and unanimously stated, “[I]t is
incumbent upon this Court to scrutinize carefully any
deviations from the protections designed to provide [the]
accused servicemember with a properly constituted panel. . .
. [E]ven reasonable doubt concerning the use of impermissible
selection criteria for members cannot be tolerated.” Riesbeck,
77 M.J. at 163 (emphasis added) (internal quotation marks
omitted) (citations omitted).
    And yet, despite the clear-cut mandate of Riesbeck and de-
spite the compelling and highly disturbing facts in the instant
case, the majority has chosen to ignore this precedent, our at-
tendant responsibilities, and the fundamental principles un-
derlying a number of relevant Supreme Court cases by deny-
ing Appellant a simple DuBay hearing so that he may seek to


tion of his panel, he raised his preventative Batson objection. Fur-
ther, to be clear, an accused has no right to a member panel “com-
posed in whole or in part of persons of [his] own race.” Powers v.
Ohio, 499 U.S. 400, 404 (1991) (emphasis added) (internal quota-
tion marks omitted) (quoting Strauder, 100 U.S. at 305). But, an
accused such as this Appellant “does have the right to be tried by a
jury whose members are selected by nondiscriminatory criteria,”
and it is this constitutional right of which Appellant sought to avail
himself at trial. Id. (emphasis added).




                                 12
             United States v. Bess No. 19-0086/NA
                 Judge OHLSON, dissenting

vindicate his legal and constitutional rights. This decision by
the majority is wrong—fundamentally and egregiously—and
has grave implications for all future courts-martial involving
African American servicemembers. Therefore, I respectfully
dissent.




                              13
              United States v. Bess, No. 19-0086/NA


   Judge SPARKS, with whom Judge Ohlson joins,
dissenting.

    I agree with Judge Ohlson that the military judge abused
her discretion and I join his dissent. The military judge’s
somewhat cursory treatment of the issues and her desire to
move on demonstrated her frustration with the timing of
defense counsel’s request. Nonetheless, given the significance
of the issue, the military judge should have at least ordered a
brief recess to allow the parties time to investigate whether a
compromise could be reached to resolve the issue. Indeed,
there is some indication in this record that the convening
authority might have obviated the issue all together. True, it
is just as possible that an effort seeking such a compromise
might not have been successful, but in my view an attempt
would have been worthwhile.
    I especially agree with Judge Ohlson that even if Batson
v. Kentucky, 476 U.S. 79 (1986), itself does not explicitly apply
to the convening authority, “the fundamental equal
protection principles espoused in Batson must apply broadly
to the entire jury-selection process.” United States v. Bess, __
M.J. __, __ (11) (C.A.A.F. 2020) (Ohlson, J., with whom
Sparks, J., joined, dissenting). That includes subordinate
authorities tasked with providing candidates for the
convening authority’s consideration. I also agree that the
state of this record does not allow a proper resolution of Issues
I and III. I believe Appellant presented enough evidence of
inconsistencies in and questions about the member selection
process that this Court should order a post-trial hearing in
accordance with United States v. DuBay, 17 C.M.A. 147, 37
C.M.R. 411 (1967), to gather further information.
   As articulated in United States v. Campbell, the bar for
ordering further collection of evidence through a DuBay
hearing is not high:
       A [DuBay] hearing need not be ordered if an
       appellate court can conclude that the motion and the
       files and records of the case…conclusively show that
       [an appellant] is entitled to no relief …. [A] hearing
       is unnecessary when the post-trial claim (1) is
       inadequate on its face, or (2) although facially
       adequate is conclusively refuted as to the alleged
       facts by the files and records of the case, i.e., they
              United States v. Bess, No. 19-0086/NA
                   Judge SPARKS, dissenting

       state conclusions instead of facts, contradict the
       record, or are inherently incredible.
57 M.J. 134, 138 (C.A.A.F. 2002) (alterations in original)
(internal quotation marks omitted) (quoting United States v.
Ginn, 47 M.J. 236, 244 (C.A.A.F. 1997)).
   Here, Appellant introduced enough uncertainty about
racial disparities in the member selection process in his and
other cases that his claim was neither inherently incredible
nor conclusively refuted. As the record currently stands, we
do not know if or why all-white panels may have been
assigned to cases involving African American defendants
accused of sexual offenses. The letter and signed affidavit
from Commander Czaplak, the Executive Officer of the
Defense Service Office Southeast, raises questions about a
possible pattern of improper selection that this Court should
investigate further, especially given the Supreme Court’s
recent reliance on “historical evidence” to identify patterns in
jury selection in Flowers v. Mississippi. 139 S. Ct 2228, 2245
(2019).1 Therefore, I believe a DuBay hearing is merited.
    This Court has acknowledged that the military justice
system’s member selection process, though not bound by the
strictures of the Sixth Amendment jury trial requirements,
merits vigilance and careful scrutiny to ensure that
protections afforded a military accused are not violated.
United States v. Riesbeck, 77 M.J. 154, 162─63 (C.A.A.F.
2018). We have also recognized that the convening authority
has “significant discretion” to select panel members as he or
she sees fit consistent with Article 25, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 825. Id. at 163.
Therefore, it is vitally important that our military justice
system take seriously any claim that the member selection
process in a particular court-martial may have improperly
disadvantaged the accused in any way.
   In my view, a remand for a DuBay hearing would be in the
convening authority’s interest. From a good order and


   1  In Flowers, the Supreme Court reiterated a defendant’s right
to cast a wide net in gathering relevant historical evidence pertain-
ing to the government’s discriminatory jury selection process (in the
case of Flowers, a pattern of preemptive strikes of black jurors in
direct violation of Batson, 476 U.S. 79. 139 S. Ct. at 2245. To para-
phrase that opinion, we cannot take the history out of the case. Id.
at 2246.




                                 2
             United States v. Bess, No. 19-0086/NA
                  Judge SPARKS, dissenting

discipline standpoint, the convening authority, like any
commander, would want to be informed and to take measures
to tamp down any perception, even an erroneous one, that
racial animus might have found its way into the court-martial
process. Commanders, unlike judges and lawyers, are
uniquely positioned to understand how easily perception can
transform into fact in the minds of some members of the
command.
    The current record leaves a number of unanswered
questions surrounding the concerns raised by Appellant. The
prudent step at this point in the proceedings would be for the
Court to authorize a DuBay hearing to shed further light on
the panel selection process including the actual racial
composition of Appellant’s panel, the information available to
the convening authority and how he or any subordinate
commanders might have gone about selecting prospective
members for this court-martial, and relevant racial statistics
of the member pool. We might all agree that trial defense
counsel could have done better in presenting and following up
on his claim. However, defense counsel’s actions
notwithstanding, given the serious nature of the issues—and
that they potentially impact other African American accuseds
under this convening authority—it is this Court’s
responsibility to gather a complete enough record that we
may fully assess whether any impropriety has occurred.
Importantly, such an inquiry does not, in and of itself, suggest
anything improper.
   For these reasons, I respectfully dissent.




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