                        UNITED STATES, Appellee

                                    v.

                    Ahmed M. ELFAYOUMI, Sergeant
                        U.S. Army, Appellant

                              No. 07-0346

                       Crim. App. No. 20010415

       United States Court of Appeals for the Armed Forces

                      Argued February 26, 2008

                         Decided June 4, 2008

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

                                 Counsel

For Appellant: Frank J. Spinner, Esq. (argued); Major Teresa L.
Raymond (on brief); Major Sean F. Mangan and Captain Tyeshe
Elizabeth Lowery.

For Appellee: Captain Michael G. Pond (argued); Major Elizabeth
G. Marotta and Captain Michael C. Friess (on brief); Captain
Andrew C. Baum.



Military Judge:   James L. Pohl



       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Elfayoumi, No. 07-0346/AR


     Judge BAKER delivered the opinion of the Court.

     At a court-martial composed of members, Appellant was

convicted, contrary to his pleas, of forcible sodomy, assault

and battery upon a military prison guard and three

specifications of indecent assault in violation of Articles 125,

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

§§ 925, 928, 934 (2000), respectively.    The adjudged and

approved sentence included a dishonorable discharge, confinement

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

reduction in grade to E-1.   The United States Army Court of

Criminal Appeals affirmed.   United States v. Elfayoumi, No. ARMY

20010415 (A. Ct. Crim. App. Jan 18, 2007) (unpublished).     The

question presented is whether a member, having expressed a view

that homosexuality and pornography were “morally wrong,” should

have been excused on the basis of implied bias.    We conclude the

military judge did not abuse his discretion in denying the

challenge for cause and affirm.

                             BACKGROUND

     During general voir dire Major (MAJ) G stated that he had

moral and religious objections to homosexuality.   In addition,

during individual voir dire he responded to the military judge’s

questions in the following manner:

     MJ:   Earlier you indicated you had some strong objections
           to homosexuality?



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     MEM:    That is correct, sir.

     MJ:     Could you explain a little bit about that.

     MEM:    I feel that it is morally wrong. It is against what
             I believe as a Christian and I do have some strong
             opinions against it.

     MJ:     You notice[] on the [charge sheet] that the word
             “homosexual” is not there?

     MEM:    Yes, sir.

     MJ:     But there are male on male sexual touchings alleged.1

     MEM:    Yes, sir.



1
  The relevant portions of the offenses to which the military
judge was referring read as follows:

     Charge:   I   VIOLATION OF THE UCMJ, ARTICLE 125

     SPECIFICATION: In that [Appellant] . . . did . . . commit
     sodomy with Private Mark [H] by force and without the
     consent of the said Private Mark [H].

            . . . .

     Charge:   III    VIOLATION OF THE UCMJ, ARTICLE 134

     SPECIFICATION 1: In that [Appellant] . . . did . . .
     commit an indecent assault upon Alexander [G] . . . by
     rubbing his hand against the leg and private parts of
     Alexander [G] . . . .

            . . . .

     SPECIFICATION 3: In that [Appellant] . . . did . . .
     commit an indecent assault upon Charles [N] . . . by
     massaging his shoulders and attempting to massage his groin
     area . . . .

     SPECIFICATION 4: In that [Appellant] . . . did . . .
     commit an indecent assault upon Keith [B] . . . by placing
     his hand on Keith [B]’s inner thigh . . . .

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     MJ:      Do you think, with your moral beliefs that you can
              fairly evaluate the evidence of this case given the
              nature of the allegations?

     MEM:     Yes, sir.

     MJ:      Let’s say we get to sentencing and the accused is
              convicted of some or all of the [offenses] . . . .
              Let’s talk about these offenses involving indecent
              assault and the forcible sodomy. If it got to that
              point in the trial and the accused was convicted of
              some or all of those offenses, do you think you could
              fairly consider the full range of punishments?

     MEM:     Yes, sir.

     MJ:      Do you think you could honestly consider not
              discharging the accused even with that kind of
              conviction?

     MEM:     I would have a hard time with that, sir.

     MJ:      Could you consider it though?

     MEM:     Yes, sir.

     MJ:      After hearing the entire case, you wouldn’t
              [categorically] exclude that?

     MEM:     No, sir.

     MJ:      Now understanding there may be administrative[]
              consequences and we all know those, but as a court
              member, that’s not your concern. Do you understand
              that?

     MEM:     Yes, sir.

On the question of pornography, MAJ G responded:

     [DC:]      In response to one of the questions, you stated
                that you had a moral aversion to pornography.

     [Mem:]     Yes, I believe it is wrong also.




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     [DC:]      Would you consider someone who possessed or used
                pornography more likely to commit an immoral act
                . . . just because they have possessed that?

     [MEM:]     No.

     [DC:]      What about an act that you might perceive to be
                sexually immoral?

     {MEM:]     If I knew someone who watched pornography, are
                they more apt to do a sexual act that I consider
                to be immoral?

     [DC:]      Yes, sir.

     [MEM:]     Does that make them immoral, no.

Based on these responses, Appellant argues that MAJ G should

have been removed for cause based on implied bias.   According to

Appellant, “[r]egardless of the court member responses in this

case, there is a widespread view” among the public that the

military, generally, is biased against homosexuals serving in

the military.   According to Appellant, it follows that when a

member expresses strongly held views against homosexuality in a

case where “the evidence is so closely connected to allegations

of homosexual behavior,” it puts “too much of a strain on the

military justice system” to allow such a member to sit.   With

respect to MAJ G’s views on pornography, Appellant argues, MAJ G

exhibited an inelastic attitude, which prejudged the punitive

outcome.




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                              DISCUSSION

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

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

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

421 (C.A.A.F. 2002) (citation omitted); United States v. Moreno,

63 M.J. 129, 132 (C.A.A.F. 2006).     Rule for Courts-Martial

(R.C.M.) 912(f)(1)(N) requires an excusal for cause where it

appears an individual “[s]hould not sit as a member in the

interest of having the court-martial free from substantial doubt

as to legality, fairness, and impartiality.”    This rule

encompasses challenges based upon both actual and implied bias.

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

United States v. Ai, 49 M.J. 1, 4-5 (C.A.A.F. 1998).     Implied

bias exists when most people in the same position as the court

member would be prejudiced.    United States v. Napolitano, 53

M.J. 162, 167 (C.A.A.F. 2000); United States v. Warden, 51 M.J.

78, 81 (C.A.A.F. 1999); United States v. Daulton, 45 M.J. 212,

217 (C.A.A.F. 1996).   To test whether there is substantial doubt

about the fairness of the trial, we evaluate implied bias

objectively, “‘through the eyes of the public,’” reviewing “‘the

perception or appearance of fairness of the military justice

system.’”   United States v. Townsend, 65 M.J. 460, 463 (C.A.A.F.

2008) (quoting United States v. Schlamer, 52 M.J. 80, 92-93

(C.A.A.F. 1999); United States v. Dale, 42 M.J. 384, 386


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United States v. Elfayoumi, No. 07-0346/AR


(C.A.A.F. 1995)).    This review is based on the “totality of the

circumstances.”     United States v. Terry, 64 M.J. 295, 302

(C.A.A.F. 2007) (citation and quotation marks omitted).

Although we review issues of implied bias for an abuse of

discretion, because we apply an objective test, we apply a less

deferential standard than we would when reviewing a claim of

actual bias.   United States v. Armstrong, 54 M.J. 51, 54

(C.A.A.F. 2000); United States v. Napoleon, 46 M.J. 279, 283

(C.A.A.F. 1997).

     As Appellant notes, the question of homosexuality and

military service may evoke strongly held moral, legal, and

religious views.    The range and depth of these views is

reflected in debate over those personnel policies identified by

the rubric “Don’t Ask, Don’t Tell.”    These personnel policies,

like the military criminal code, are set in law by the political

branches –- the Congress and the Executive.

     The duty of judges is to uphold the law in constitutional

context.   This includes the constitutional and statutory duty to

ensure that an accused receives a fair trial.    That means, among

other things, that where a court-martial is conducted with

members, deliberations will be based on the four corners of the

law and not the personal views of members.    To accomplish this

end, the military judge has a number of tools, including the




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authority to oversee and conduct voir dire and to instruct

members on the law and their deliberations.

     In this case, the military judge used those tools.    Faced

with MAJ G’s initial statements expressing a moral and religious

objection to homosexuality as well as pornography, the military

judge tested for personal bias that might manifest itself during

the members’ deliberations, regardless of the military judge’s

instructions on the law.   Among other things, the military judge

disaggregated the question of homosexuality from the charged

criminal conduct at issue –- forcible sodomy.   The military

judge also permitted defense counsel to question MAJ G and did

not restrict that questioning.   MAJ G’s answers to defense

counsel’s questions about his views on pornography revealed that

MAJ G could distinguish between that which he might find immoral

and that which the law might deem criminal.   Further, defense

counsel was permitted to ask questions, and there is no

indication that defense counsel was precluded from asking any

additional questions.

     As a general matter, moral or religious views are not per

se disqualifying where a member otherwise demonstrates a

capacity to hear a case based on the four corners of the law and

as instructed by the military judge.   But recognizing the human

condition, the law gives a military judge the added flexibility,

and duty, to err on the side of caution where there is


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United States v. Elfayoumi, No. 07-0346/AR


substantial doubt as to the fairness of having a member sit.

Thus, the military judge need not impugn the integrity or values

of a member in finding actual bias, but can in context rely on

the implied bias/liberal grant doctrine if substantial doubt

arises that a member can put his or her views aside.

     It would not be unusual for members to have strongly held

views about lawful conduct involving sex or pornography.

Indeed, in today’s society it will be hard to find a member who

does not hold such views, one way or another.    So too, a member

might have a strongly held view about unlawful conduct --

murder, shoplifting, forcible sodomy, etc.    We expect that most,

if not all members, would.   Also, we surmise that most members

would have a natural propensity to be either lenient or punitive

depending on their personal views on these subjects.    The law

anticipates this human condition.     Thus, the question is not

whether they have views about certain kinds of conduct and

inclinations regarding punishment, but whether they can put

their views aside and judge each particular case on its own

merits and the law, such that appellate courts, in applying

R.C.M. 912, are not left in substantial doubt as to the fairness

or impartiality of the members.   Here, because the military

judge specifically questioned MAJ G on his ability to separate

his personal views from the facts of the case, and in light of




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United States v. Elfayoumi, No. 07-0346/AR

MAJ G’s responses, we conclude that the military judge did not

abuse his discretion in denying the challenge for cause.

                            DECISION

     The decision of the United States Army Court of Criminal

Appeals is affirmed.




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     ERDMANN, Judge, with whom RYAN, Judge, joins (dissenting):

     Rule for Courts-Martial (R.C.M.) 912 encompasses challenges

based upon both actual bias and implied bias.   United States v.

Clay, 64 M.J. 274, 276 (C.A.A.F. 2007); United States v. Ai, 49

M.J. 1, 4-5 (C.A.A.F. 1998).   R.C.M. 912(f)(1)(N) provides a

challenge for implied bias where it appears an individual

“[s]hould not sit as a member in the interest of having the

court-martial free from substantial doubt as to legality,

fairness, and impartiality.”   The focus of a challenge for

implied bias is upon “the perception or appearance of fairness

of the military justice system” as viewed objectively “through

the eyes of the public.”   United States v. Schlamer, 52 M.J. 80,

93 (C.A.A.F. 1999) (citations and quotation marks omitted);

United States v. Dale, 42 M.J. 384, 386 (C.A.A.F. 1995).      As I

noted in United States v. Townsend, 65 M.J. 460, 463 (C.A.A.F.

2008):   “Our inquiry is to determine whether the risk that the

public will perceive that the accused received something less

than a court of fair, impartial members is too high.”   I

conclude that a reasonable member of the public would have

serious doubts about the fairness of Elfayoumi’s trial with

Major (MAJ) G sitting on the panel.

     Religious, moral, and personal beliefs are relevant

considerations in determining whether an individual should serve

as a juror or court member.    “The right to examine jurors on the
United States v. Elfayoumi, No. 07-0346/AR


voir dire as to the existence of a disqualifying state of mind,

has been upheld . . . in relation to religious and other

prejudices of a serious character.”   Aldridge v. United States,

283 U.S. 308, 313 (1931).   If moral or religious principles are

so strong that they will not yield and permit a potential member

to adjudicate the case without violating those principles, there

is cause to excuse that member.   See United States v. Decoud,

456 F.3d 996, 1017 (9th Cir. 2006); United States v. Geffrard,

87 F.3d 448, 451-52 (11th Cir. 1996); United States v. Hoffman,

806 F.2d 703, 705 (7th Cir. 1986).    It follows that if moral or

religious conviction can serve to disqualify a member, those

same traits can also create a perception of unfairness in the

eyes of the public when those traits may prejudice a member’s

adjudication of the case or that member’s view of the accused.

     The charges in this case and the evidence ultimately

presented leave no question that homosexual conduct and

pornography were at the core of the case.    MAJ G left no doubt

about his views and aversions to both.   He stated without

qualification that:   he had “religious or other strong

objections to homosexuality”; he had a “religious or moral

aversion to pornography”; he felt that “a person who possesses

pornographic material is immoral”; he had “Christian” feelings

that homosexuality was morally wrong; he held strong opinions

against homosexuality; he would have a “hard time” not


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United States v. Elfayoumi, No. 07-0346/AR


considering a discharge on sentencing; and he believed

pornography was “wrong.”   In light of these unwavering

responses, a reasonable observer could conclude that MAJ G’s

“strong,” “moral” and “Christian” beliefs would influence his

adjudication of the offenses and his perception of Elfayoumi

who:   inferentially was homosexual; rented and viewed

pornographic materials; touched another male while viewing

pornography; indecently touched three other males at distinct

times; and committed forcible sodomy upon a male who refused his

sexual advances.

       The military judge did engage MAJ G in questioning about

his beliefs and convictions and he did obtain an assurance from

MAJ G that he could follow the law as given by the military

judge.   However, review for implied bias is undertaken “despite

a disclaimer.”   Townsend, 65 M.J. at 463.   In addition, the

military judge’s ruling does not reflect that he considered the

liberal grant mandate.   Where a military judge does not indicate

on the record that he has considered the liberal grant mandate

in ruling on a challenge, we will accord that decision less

deference during our review of the ruling.   See Clay, 64 M.J. at

277; United States v. Hollings, 65 M.J. 116, 119 (C.A.A.F.

2007); United States v. Terry, 64 M.J. 295, 296 (C.A.A.F. 2007).

       Under the circumstances of this case, I conclude there was

a substantial risk that the public would feel that this trial


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United States v. Elfayoumi, No. 07-0346/AR


was not conducted with a fair and impartial panel.   This is the

type of case in which the military judge should have applied the

liberal grant mandate and utilized the “added flexibility, and

duty, to err on the side of caution where there is substantial

doubt as to the fairness of having [MAJ G] sit.”   United States

v. Elfayoumi, __ M.J. __ (8-9) (C.A.A.F. 2008).    I therefore

dissent.




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