

   
   
   
   U.S. v. Armstrong



UNITED STATES, Appellant
v.
Thomas O. ARMSTRONG, Chief Quartermaster
U.S. Coast Guard, Appellee
 
No. 00-5002
Crim. App. No. 1076
 
United States Court of Appeals for the Armed
Forces
Argued April 6, 2000
Decided August 31, 2000
GIERKE, J., delivered the opinion of the
Court, in which
EFFRON, J., and COX, S.J., joined. SULLIVAN,
J., filed
a dissenting opinion in which CRAWFORD,
C.J., joined.
Counsel
For Appellee: Lieutenant Junior Grade Mark
A. Cunningham (argued).
For Appellant: Lieutenant Sandra K. Selman
(argued); Lieutenant Commander Jeffrey Good.
Military Judge: Lane I. McClelland
 
 


This opinion is subject to
editorial correction before publication.
 
 

Judge GIERKE delivered the opinion of the Court.
A general court-martial composed of officer
members convicted appellee, on mixed pleas, of larceny (4 specifications),
forgery (26 specifications), violating a general order (5 specifications),
dereliction of duty (6 specifications), making a false official statement,
filing a false claim against the United States, and communicating indecent
language, in violation of Articles 121, 123, 92, 107, 132, and l34, Uniform
Code of Military Justice, 10 USC §§ 921, 923, 892, 907, 932,
and 934, respectively. The court-martial sentenced appellee to be reduced
from pay grade E-7 to pay grade E-6, to pay a fine of $1,200, and to be
confined for 1 year. The convening authority remitted the fine but approved
the remainder of the sentence.
The Court of Criminal Appeals set aside the
contested findings of guilty and the sentence on the ground that the military
judge erred by denying a defense challenge for cause against a court member.
51 MJ 612 (1999). The General Counsel of the Department of Transportation
certified the following issues to our Court:


I
WHETHER THE COURT BELOW ERRED BY FAILING TO
APPLY A PLAIN OR OBVIOUS ERROR STANDARD OF REVIEW TO THE MILITARY JUDGES
DENIAL OF ACCUSEDS CHALLENGE FOR CAUSE ON GROUNDS OF IMPLIED BIAS WHERE
THE ISSUE OF IMPLIED BIAS WAS FIRST RAISED ON APPEAL.

II
WHETHER THE COURT OF CRIMINAL APPEALS ERRED
BY FINDING THAT THE FACTS IN THIS CASE WARRANTED GRANTING A CHALLENGE FOR
CAUSE FOR IMPLIED BIAS WHERE A COURT MEMBER (1) WAS FOUND TO BE CANDID
AND FORTHRIGHT DURING VOIR DIRE; (2) WAS EXPOSED TO ONLY LIMITED
AND GENERAL FACTS OF THE CASE PRIOR TO TRIAL; (3) HAD A PROFESSIONAL RELATIONSHIP
WITH THE INVESTIGATOR/WITNESS IN THE CASE; AND (4) HAD A LAW ENFORCEMENT
BACKGROUND THAT DID NOT INVOLVE PROSECUTION OF MILITARY MEMBERS.

For the reasons set out below, we affirm.

Factual Background
A panel member, Lieutenant Commander (LCDR)
T, disclosed during voir dire that he worked in the same office
with Special Agent (SA) Cannon, the lead criminal investigator in appellants
case. SA Cannon sat at the counsel table as a member of the prosecution
team and also testified as a prosecution witness. He was one of 14 people
assigned to LCDR Ts office. They all shared a common workspace.
LCDR T stated that his office has daily meetings
and that appellants case was discussed at those meetings. During the meetings,
the agents investigating appellees case made "disparaging comments" about
his character.
Although LCDR T was involved in the law enforcement
mission of the Coast Guard for all of his career, it was not police work
"in the classical sense." He worked in intelligence, not criminal investigation,
and had no personal involvement in appellees case. He had one assignment
as a special agent for the Department of Transportation, but his duties
were in counter-terrorism and external to the Coast Guard.
Asked by the military judge if he could be
impartial, LCDR T responded, "Yes, maam, that is what -- and I will remain
-- I could be impartial, absolutely." Asked if he could disregard what
he heard during the daily meetings, he responded, "Without a doubt, yes,
maam." Asked by defense counsel if the daily meetings might have some
impact on his judgment, he responded:

No, sir. I take my duty -- as a Coast Guard
officer, very seriously, and I feel that part of my duties are, I have
to be whatever I -- whatever frame of mind I have to be in, and if its
to be absolutely fair and impartial, then I certainly can do that, and
I take that very seriously.

Finally, when asked by trial counsel if he could
"fairly and impartial [sic] decide the case on its merits," he responded:
"Thats correct. Theres no doubt in my mind."
Defense counsel challenged LCDR T for cause,
based on his exposure to daily discussions about appellees case and his
association with those who investigated it. The military judge denied the
challenge for cause, observing that she found LCDR T "quite candid"; "very
earnest"; "somebody that has some self-knowledge"; and "quite credible."
The Court of Criminal Appeals agreed with the
military judges conclusion that the defense had not demonstrated actual
bias. 51 MJ at 614. Turning to implied bias, the court said that it was
"unable to discern whether the military judge, after finding no actual
bias, determined that the facts did not warrant the rare invocation of
implied bias, or simply that she did not consider the prospect of implied
bias." Id. The court concluded that "the facts in this case warranted
granting a challenge for cause for implied bias." It explained:



Here we have a court member who was part
of the law enforcement branch on the staff of the convening authority,
and, as such, was associated with those who investigated the Appellant,
regularly sitting in on briefings concerning that investigation. Moreover,
the lead investigative agent from the challenged officers law enforcement
branch was both a witness for the prosecution and part of the prosecution
team, sitting with the trial counsel throughout the trial. This link by
association of the challenged members with the prosecution generates a
perception of unfairness and prejudice that the court members disclaimer
simply cannot dispel.



51 MJ at 615.

Discussion -- Issue I: Plain Error
The Government argues that the court below
should have applied a plain-error test, since defense counsel did not specifically
articulate a challenge based on implied bias. We reject this argument for
two reasons. First, a Court of Criminal Appeals is not constrained by the
plain-error doctrine. United States v. Powell, 49 MJ 460, 464 (1998),
citing United States v. Claxton, 32 MJ 159, 162 (CMA 1991). Second,
a challenge for cause under RCM 912(f)(1)(N), Manual for Courts-Martial,
United States (1995 ed.),*
"encompasses both actual and implied bias." Actual bias and implied bias
are separate legal tests, not separate grounds for challenge. See
United States v. Warden, 51 MJ 78, 81 (1999); United States v.
Napoleon, 46 MJ 279, 283 (1997); United States v. Minyard, 46
MJ 229, 231 (1997); United States v. Daulton, 45 MJ 212, 217 (1996).
We hold that the court below did not err.

Discussion -- Issue II: Implied Bias
A military judges ruling on a challenge for
cause is reviewed for abuse of discretion. Napoleon, 46 MJ at 283.
"A trial courts standard is to grant challenges for cause liberally."
United States v. White, 36 MJ 284, 287 (CMA 1993).
We recently summarized the law on implied bias
in United States v. Warden, supra, as follows:



[I]mplied bias is "viewed through the eyes
of the public." Napoleon, supra at 283. "The focus is on
the perception or appearance of fairness of the military justice system."
Id., quoting United States v. Dale, 42 MJ 384, 386 (1995).
There is implied bias "when most people in the same position would be
prejudiced." [United States v.] Rome, [47 MJ 467,] 469 [(1998)],
quoting [United States v.] Daulton, [45 MJ 212,] 217 [(1996)]. We
give the military judge less deference on questions of implied bias. United
States v. Youngblood, 47 MJ 338, 341 (1997). On the other hand, we
recognize that, when there is no actual bias, "implied bias should be invoked
rarely." Rome, supra at 469.



51 MJ at 81-82.
When a Court of Criminal Appeals reviews a
military judges rulings, it has the "awesome, plenary, de novo
power of review" to substitute its judgment for that of the military judge.
"In point of fact, Article 66(c), UCMJ, 10 USC § 866(c) (1994) requires
the [now Court of Criminal Appeals] to use its judgment to determine[],
on the basis of the entire record which findings and sentence should be
approved." United States v. Cole, 31 MJ 270, 272 (CMA 1990).
The court below was unable to determine from
the record whether the military judge tested for implied bias. 51 MJ at
614. Thus, it made its own judgment. In this situation, the court below
was empowered, indeed obligated, to make its own judgment if it believed
that implied bias warranted granting the challenge for cause.
In our review of the decision of the court
below, the question is not how we would have ruled, but whether the court
below abused its discretion by making findings of fact that are "clearly
erroneous or unsupported by the record," or basing its decision "on an
erroneous view of the law." United States v. Taylor, 47 MJ 322,
325 (1997). We do not review decisions on implied bias de novo,
but we review them "under a somewhat less deferential standard" than actual
bias. See Napoleon, 46 MJ at 283.
The Government has urged this Court to hold
that any prejudice arising from an erroneous ruling on the challenge was
removed when the defense peremptorily challenged LCDR T. The Government
argues that the recent Supreme Court decision in United States v. Martinez-Salazar,
120 S.Ct. 774 (2000), overrules this Courts interpretation of RCM 912(f)(4),
as expressed in United States v. Jobson, 31 MJ 117, 120 (1990).
We disagree with the Governments view of the
impact of Martinez-Salazar. In that case, the defendants challenge
of a juror for cause was denied, and the defendant then used one of his
peremptory challenges to remove the juror. Before the Supreme Court, he
argued that the district court abused its discretion in refusing to strike
the juror for cause and that this error impermissibly forced the defense
to use its peremptory challenge on that juror. The Supreme Court used Martinez-Salazar
to resolve a split in the federal circuits on the "question whether a defendants
peremptory challenge right is impaired when he peremptorily challenges
a potential juror whom the district court erroneously refused to excuse
for cause, and the defendant thereafter exhausts his peremptory challenges."
120 S.Ct. at 779. The Supreme Court, declaring that there is no constitutional
right to a peremptory challenge, reiterated that neither the Sixth Amendment
right to an impartial jury nor the Fifth Amendment right to due process
is violated when a defendant chooses to peremptorily challenge a juror
who should have been excused for cause. 120 S.Ct. at 779, 780, citing Ross
v. Oklahoma,487 U.S. 81, 88, 89-91 (1988).
The issue in Martinez-Salazar was decided
on the basis of Fed. R. Crim. P. 24(b), which establishes the number of
peremptory challenges available to each side in the United States District
Courts. That rule gives the prosecution 6 peremptory challenges and the
defense 10 peremptory challenges in a non-capital case involving an offense
punishable by more than 1 year. However, Article 41, UCMJ, 10 USC §
841, allows only 1 peremptory challenge for each side in a court-martial,
regardless of the maximum imposable punishment, except in cases where additional
members are detailed after initial causal and peremptory challenges.
RCM 912(f)(4) establishes procedural rules
for preserving a challenge issue for later appellate review. There is no
counterpart to RCM 912(f)(4) in the Federal Rules of Criminal Procedure.
As this Court explained in United States
v. Romano, 46 MJ 269, 274 (1997), "The military has a hierarchical
scheme as to rights, duties, and obligations." When a statute or rule confers
a right greater than the Constitution, an accused is entitled to the benefit
of that greater right, unless it conflicts with a higher source of law.
United States v. Davis, 47 MJ 484, 485-86 (1998). RCM 912(f)(4)
gave appellee the right to use his peremptory challenge against any member
of the panel, even if his challenge of LCDR T was erroneously denied. It
also preserved appellees right to appellate review of the military judges
ruling on the challenge for cause, even though the challenged member was
removed by a peremptory challenge. Those rights are not mandated by the
Constitution or statute and are not available in a civilian criminal trial.
Until RCM 912(f)(4) is modified or rescinded,
a military accused is entitled to its protection. It does not conflict
with the Constitution or any applicable statute. Martinez-Salazar
does not preclude the President from promulgating a rule saving an accused
from the hard choice faced by defendants in federal district courts --
to let the challenged juror sit on the case and challenge the ruling on
appeal or to use a peremptory challenge to remove the juror and ensure
an impartial jury. See 120 S.Ct. at 781. The Supreme Courts decision
does not preclude the President from giving the defense in a court-martial
the right to save its single peremptory challenge for use against a member
not subject to challenge for cause. Finally, the Supreme Courts decision
does not preclude the President from prescribing a rule of procedure for
preserving a challenge issue for appellate review. The President has done
all of the above in RCM 912(f)(4). See Jobson, 31 MJ at 120-21.
Applying the foregoing principles, we hold
that the court below did not abuse its discretion. Unable to discern the
military judges conclusions regarding implied bias, it exercised its "awesome,
plenary, de novo power of review." It correctly interpreted the
decisions of this Court on implied bias. It used its knowledge and experience
to evaluate how the Coast Guard community would perceive LCDR Ts presence
on the court panel. It applied the liberal-grant mandate. It correctly
interpreted and applied RCM 912(f)(1)(N). We hold that the court below
did not abuse its discretion.

Decision
The certified questions are answered in the
negative.
The decision of the United States Coast Guard
Court of Criminal Appeals ordering a combined rehearing is affirmed.
FOOTNOTE:
* This
version of RCM 912 was in effect at the time of trial. The current version
is unchanged.


SULLIVAN, Judge, with whom CRAWFORD, Chief
Judge, joins
(dissenting):
The Court of Criminal Appeals is a court of
law which is required to follow the law when reviewing a court-martial.
Article 66, UCMJ, 10 USC § 866 (1994), in no way suggests that that
Court is free to ignore the law of plain error when conducting a
review on a question of law. See United States v. Claxton,
32 MJ 159, 165 (CMA 1991) (Sullivan, C.J., concurring in part and in the
result).
Both the United States Coast Guard Court of
Criminal Appeals and now this Court ignore our unanimous decision in United
States v. Ai, 49 MJ 1, 4-5 (1998). Ai held that if an accused
did not expressly challenge a member on an implied-bias basis at trial,
a post-trial claim of this issue is only reviewed for plain error. United
States v. Warden, 51 MJ 78, 82 (1999), cites United States v. Ai,
supra, with approval and does not purport to overrule it in any
way. Appellee here made only an objection on actual bias during his court-martial.
Accordingly, he did not properly preserve the issue of implied bias, and
it should now be reviewed under a plain-error standard. 49 MJ at 5. In
view of our case law, it cannot be said that the military judge committed
plain error when she did not sua sponte excuse Lieutenant
Commander T on the basis of implied bias. Compare United States
v. Warden, supra at 82 (affirming on implied-bias question),
with United States v. Dale, 42 MJ 384 (1995) (reversing on
implied-bias question).
I would answer both certified questions in
the affirmative. The Court of Criminal Appeals was wrong on both issues
and their decision should be reversed. I respectfully dissent.


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