                        UNITED STATES, Appellee

                                     v.

              Christopher T. MILES, Airman First Class
                      U.S. Air Force, Appellant


                               No. 01-0653


                          Crim. App. No. 34094



       United States Court of Appeals for the Armed Forces

                         Argued January 8, 2003

                         Decided April 10, 2003

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

                                  Counsel

For Appellant: Captain Kyle R. Jacobson (argued); Lieutenant
   Colonel Beverly B. Knott, Lieutenant Colonel Timothy W.
   Murphy, Major Terry L. McElyea, and Major Jeffrey A. Vires
   (on brief).

For Appellee: Captain Matthew J. Mulbarger (argued); Colonel
   LeEllen Coacher, Lieutenant Colonel Lance B. Sigmon, and
   Captain Christa S. Cothrel (on brief).

Military Judge:    Dennis R. Kramer


  This opinion is subject to editorial correction before final publication.
United States v. Miles, No. 01-0653/AF


      Judge GIERKE delivered the opinion of the Court.

      A general court-martial convicted Appellant, pursuant to his

pleas, of wrongful use of cocaine, in violation of Article 112a,

Uniform Code of Military Justice, 10 U.S.C. § 912a (2002).        The

adjudged and approved sentence, imposed by a panel of officer and

enlisted members, provides for a bad-conduct discharge,

confinement for three months, total forfeitures, and reduction to

the lowest enlisted grade.       The Court of Criminal Appeals

affirmed the findings and sentence in an unpublished opinion.

United States v. Miles, ACM 34094 (A.F. Ct. Crim. App. Apr. 24,
2001).

      This Court granted review of the following issue:

      WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN DENYING
      DEFENSE COUNSEL’S CHALLENGE FOR CAUSE AGAINST [LIEUTENANT
      COLONEL] FERNANDEZ.

      For the reasons set out below, we reverse.

                            Factual Background

      During the military judge’s inquiry into Appellant’s guilty

pleas, Appellant told the military judge that sometime between

September 28 and October 12, 1999, he went boating with friends,
met a young woman, and later accompanied the woman to a party.

At the party, Appellant drank two or three beers in addition to

the alcoholic beverages he had consumed during the day.        Someone

at the party offered Appellant a tray containing a white powdery

substance, and Appellant snorted it.         He felt no effect from the

substance, but a urinalysis after the party tested positive for

cocaine.

      During general voir dire, defense counsel asked the members,

“Has anyone known someone, had a family member or friend, a co-


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United States v. Miles, No. 01-0653/AF


worker who’s ever been a victim of a crime where alcohol or drugs

were involved?” Lieutenant Colonel (Lt Col) Michael Fernandez

responded that his nephew was born with a form of epilepsy as a

result of his mother’s cocaine use during pregnancy, and that as

a result his nephew died when he was 10 years old.       Lt Col

Fernandez said that the charges in this case triggered memories

of his nephew’s illness and death, because the charges reminded

him of a newspaper article about the effects of drug abuse that

he had written for the base newspaper.       Defense counsel asked,

“Sir, is there anything about that that would weigh on your

conscience in going over the facts and circumstances of this

case?”   Lt Col Fernandez responded in the negative.

      During individual voir dire, Lt Col Fernandez explained that

every week a different commander is tasked to write an article

for the base newspaper.       Lt Col Fernandez described his article

as a “self experience.”       Asked to describe the article in more

detail, he explained:

            Well, basically, it talked about the impact of using
            cocaine, how it affects folk’s [sic] lives, and
            sometimes we think it just affects the person who used
            the cocaine, when, in fact, it [sic] I was trying to
            point out that it affects other folks as well. Case in
            point being my nephew, where he had no involvement with
            cocaine, but then his mother using it during her
            pregnancy and then him being born and the effect it had
            on him.


      Lt Col Fernandez said that, in addition to discussing the

impact of drugs on his nephew, his article connected drug use to

the military.     He explained:

            I make people look inside and think about is it worth
            it, using the drugs, how would they feel flying in an
            aircraft where a pilot was under the influence, or
            being on an airplane where an air traffic controller,


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United States v. Miles, No. 01-0653/AF


            who’s controlling the aircraft, is under the influence,
            or a doctor who’s performing some type of lifesaving
            surgery being under the influence of alcohol or drugs.


      Lt Col Fernandez stated that the newspaper is circulated

“pretty much to the entire base population,” and that the article

is “usually on the inside of the front page,” with a picture of

the author as well as his name and duty title.    The article was

scheduled to be published four days after the court-martial

convened.

      Trial counsel, observing that “[e]vidently it was a very

traumatic experience for you and your family,” asked Lt Col

Fernandez if he “[w]ould... be able to set aside the situation”

as well as the article itself and decide the case solely on the

facts.    Lt Col Fernandez responded in the affirmative. Neither

the military judge nor counsel for either side asked Lt Col

Fernandez to produce the text of the article.

      The military judge denied a challenge for cause against Lt

Col Fernandez, stating that he did not find actual or implied

bias.    The defense counsel then exercised a peremptory challenge

against Lt Col Fernandez, stating that he would have used the

peremptory challenge elsewhere if the challenge for cause had

been granted.

      The Court of Criminal Appeals held that the military judge

did not abuse his discretion by denying the challenge.    Based on

Lt Col Fernandez’s “honest and forthright” responses during voir

dire, the court below agreed with the military judge’s

determination that there was no actual bias.    With respect to

implied bias, however, the court below found it “somewhat harder



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United States v. Miles, No. 01-0653/AF


to pin down.”     The court concluded its review of implied bias by

stating:    “Out of an abundance of caution, another judge might

have granted the challenge for cause based on the timing between

the court-martial and the publication of the article.         However,

that is not the test.      We find this judge did not abuse his

discretion by denying the challenge.”         Miles, ACM 34094, slip

opinion at 5.



                                 Discussion
      Before this Court, Appellant focuses on implied bias,

arguing that “Lt Col Fernandez’s personal experiences with, and

views on, the effects of cocaine use would cause an objective

observer of the military justice system to doubt the fairness of

[A]ppellant’s court-martial.” The Government argues that Lt Col

Fernandez was not necessarily disqualified because his nephew was

a victim of drug abuse, and that Lt Col Fernandez’s decision “to

make his personal situation public” does not, by itself, create

an appearance of bias.

      Rule for Courts-Martial [hereinafter R.C.M.] 912(f)(1)(N)
requires that a member be excused for cause whenever it appears

that the member “[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 includes actual

bias as well as implied bias.        United States v. Daulton, 45 M.J.

212, 217 (C.A.A.F. 1996).       Actual bias and implied bias are

separate tests, but not separate grounds for a challenge.         See

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

“The focus of this rule is on the perception or appearance of


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United States v. Miles, No. 01-0653/AF


fairness of the military justice system.”            United States v. Dale,

42 M.J. 384, 386 (C.A.A.F. 1995).            There is implied bias “when

most people in the same position would be prejudiced.”            United
States v. Smart, 21 M.J. 15, 20 (C.M.A. 1985).            “Implied bias is

viewed through the eyes of the public, focusing on the appearance

of fairness.”     United States v. Rome, 47 M.J. 467, 469 (C.A.A.F.

1998).

      Military judges are enjoined to be liberal in granting

challenges for cause.      See Smart, 21 M.J. at 18-19 n. 1.         Because

a challenge for cause for actual bias is essentially one of

credibility,” the military judge’s decision is given “great

deference” because of his or her opportunity to observe the

demeanor of court members and assess their credibility during

voir dire. Daulton, 45 M.J. at 217 (citations ommitted).

However, implied bias is reviewed under an objective standard.

Id.   Thus, we give the military judge less deference on questions

of implied bias.     United States v. Youngblood, 47 M.J. 338, 341

(C.A.A.F. 1997).     “[I]ssues of implied bias are reviewed under a

standard less deferential than abuse of discretion but more
deferential than de novo.”       United States v. Downing, 56 M.J.

419, 422 (C.A.A.F. 2002).

      A member is not per se disqualified if he or she or a close

relative has been a victim of a similar crime.             Where a

particularly traumatic similar crime was involved, however, we

have found that denial of a challenge for cause violated the

liberal-grant mandate. See Daulton, 45 M.J. at 214 (sister and

mother of court member sexually abused); Smart, 21 M.J. at 16

(member was victim of multiple armed robberies).


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United States v. Miles, No. 01-0653/AF


      Applying the test for implied bias, we hold that the

military judge abused his limited discretion and violated the

liberal-grant mandate in this case.          Lt Col Fernandez’s 10-year-

old nephew died as a result of his mother’s prenatal use of

cocaine.    He described this tragedy in his article for the base

newspaper that was scheduled to be published shortly after

Appellant’s court-martial.       The record does not reflect whether

the trial counsel’s comment about the traumatic nature of this

event was based on his observation of Lt Col Fernandez’s demeanor

or by his familiarity with the text of the article.

Nevertheless, trial counsel’s comment that the event “evidently”

was “a very traumatic experience” reflects the trial counsel’s

awareness, notwithstanding Lt Col Fernandez’s sincere disclaimer

during voir dire, that Lt Col Fernandez had been personally

affected by another person’s drug abuse.         We conclude that asking

Lt Col Fernandez to set aside his memories of his nephews’ death

and to impartially sentence Appellant for illegal drug use was

“asking too much” of him and the system.         See Daulton, 45 M.J. at
218; see also Dale, 42 M.J. at 386.
      Furthermore, apart from Lt Col Fernandez’s personal

experience with the effects of drug abuse, the scheduled

publication of his “self-experience” four days after his

participation in a court-martial for drug abuse would have added

to the serious doubts in the minds of a reasonable observer about

the fairness of the trial, if he had not been peremptorily

challenged.    See United States v. Weisen, 56 M.J. 172, 176

(C.A.A.F. 2001)(“serious doubts about the fairness of the

military justice system” raised by denial of challenge).         Thus,


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United States v. Miles, No. 01-0653/AF


we conclude that the military judge violated the liberal-grant

mandate by denying the challenge for cause.

      Because Appellant pleaded guilty and was found guilty by the

military judge, the error was harmless with respect to the

findings.    However, we hold that the peremptory challenge of Lt

Col Fernandez did not render the error harmless with respect to

the sentence.     By promulgating R.C.M. 912(f)(4), the President

granted Appellant the right to save his single peremptory

challenge for use against a member not subject to challenge for

cause.   Armstrong, 54 M.J. at 55.           That right was violated in
this case when Appellant was forced to use his peremptory

challenge against Lt Col Fernandez.

                                  Decision

      The decision of the United States Air Force Court of

Criminal Appeals is affirmed with respect to the findings but

reversed with respect to the sentence.            The sentence is set

aside.   A sentence rehearing is authorized.




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United States v. Miles, No. 01-0653/AF


       CRAWFORD, Chief Judge (dissenting):

      Even if the military judge clearly abused his discretion by

denying the challenge for cause against Lt Col Fernandez on the

basis of implied bias,1 that error was rendered harmless when

Appellant used his peremptory challenge to remove Lt Col

Fernandez from the panel, leaving no one else whom Appellant had

challenged for cause.      “As this Court has often stated, at its

core, implied bias addresses the perception or appearance of

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

Downing, 56 M.J. 419, 422 (C.A.A.F. 2002).          In this case, a

panel of completely unbiased members sentenced Appellant.             It

does not get any fairer than that.

                         1. Introduction

      At the outset, I note my agreement with the following two

principles:

      1.   When an accused unsuccessfully challenges a member for

cause, and thereafter uses his or her peremptory challenge to

remove that member from the panel, the accused preserves the

issue for appeal by stating that but for the denied challenge

for cause, the peremptory challenge would have been used against


1
  In my view, the military judge did not clearly abuse his discretion by
denying the challenge for cause. See United States v. Wiesen, 56 M.J. 172,
177 (C.A.A.F. 2001)(Crawford, C.J., dissenting); United States v. Rome, 47
M.J. 467, 470 (C.A.A.F. 1998)(Crawford, J., dissenting); United States v.
Minyard, 46 M.J. 229, 232 (C.A.A.F. 1997)(Crawford, J., dissenting); United
States v. Daulton, 45 M.J. 212, 221 (C.A.A.F. 1996)(Crawford, J.,
dissenting).
United States v. Miles, No. 01-0653/AF


a different member of the panel.       United States v. Eby, 44 M.J.

425, 427 (C.A.A.F. 1996); Rule for Courts-Martial 912(f)(4)

[hereinafter R.C.M.].

     2.   There is a hierarchical scheme of rights and duties in

the military justice system, and when an R.C.M. confers a

greater right than the Constitution or a statute, an accused is

generally entitled to the benefit of that greater right.        United

States v. Davis, 47 M.J. 484, 485-86 (C.A.A.F. 1998); United

States v. Romano, 46 M.J. 269, 274 (C.A.A.F. 1997).

     Having said that, I do not believe that anything in R.C.M.

912(f)(4) precludes a constitutional and statutory harmless

error analysis when a military judge erroneously denies an

accused’s challenge for cause, and thereafter, the accused uses

his or her peremptory challenge to remove that member from the

panel, even if the accused preserves the issue for appeal in

accordance with R.C.M. 912(f)(4).      In other words, R.C.M.

912(f)(4) does not create a per se rule of reversal, and to the

extent the majority opinion in United States v. Armstrong, 54

M.J. 51 (C.A.A.F. 2000), is to the contrary, I disagree with its

rationale.

     Stare decisis requires us to exercise judicial restraint by

following precedent.    But that doctrine does not apply when an

opinion like Armstrong is poorly reasoned, or when “developments

in the law” have not been fully explored.      United States v.


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United States v. Miles, No. 01-0653/AF


Tualla, 52 M.J. 228, 232-33 (C.A.A.F. 2000)(Crawford, C.J.,

concurring).    In my view, Armstrong fails to recognize the

impact of Supreme Court precedent on this area of the law.

Therefore, I cannot follow Armstrong and must dissent.

                     2. Supreme Court Precedent

     In Ross v. Oklahoma, 487 U.S. 81 (1988), the Supreme Court

considered the Sixth Amendment implications of a state trial

judge’s erroneous failure to remove a juror for cause, and the

petitioner’s subsequent use of a peremptory challenge to strike

that juror.    The petitioner used all of his peremptory

challenges, but did not challenge for cause any of the jurors

who actually decided the case.    On those facts, the Supreme

Court found no Sixth Amendment violation and reasoned as

follows:

          Any claim that the jury was not impartial
     . . . must focus . . . on the jurors who ultimately
     sat. None of those 12 jurors, however, was challenged
     for cause by petitioner, and he has never suggested
     that any of the 12 was not impartial. . . .

           . . .

          Petitioner was undoubtedly required to exercise
     a peremptory challenge to cure the trial court’s
     error. But we reject the notion that the loss of a
     peremptory challenge constitutes a violation of the
     constitutional right to an impartial jury. . . . So
     long as the jury that sits is impartial, the fact that
     the defendant had to use a peremptory challenge to
     achieve that result does not mean the Sixth Amendment
     [right to an impartial jury] was violated.




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United States v. Miles, No. 01-0653/AF


Id. at 86, 88.      In other words, any error was harmless because

no one who was partial actually served on the jury.

      In United States v. Martinez-Salazar, 528 U.S. 304 (2000),

the Court again addressed “the erroneous refusal of a trial

judge to dismiss a potential juror for cause, followed by the

defendant’s exercise of a peremptory challenge to remove that

juror,” this time in the federal system.          Id. at 307.     As in

Ross, the petitioner used all of his peremptory challenges, and

no juror who actually sat was biased.          However, the question in

Martinez-Salazar was not whether the Sixth Amendment was

violated, but whether the Fifth Amendment Due Process Clause was

violated, i.e. - whether Martinez-Salazar was denied any right

granted him by Federal Rule of Criminal Procedure 24(b).2

      Consistent with Ross, the Martinez-Salazar Court found no

Fifth Amendment violation and again performed a harmless error

analysis, holding that “if the defendant elects to cure such an

error by exercising a peremptory challenge, and is subsequently

convicted by a jury on which no biased juror sat, he has not

been deprived of any rule-based or constitutional right.”                 Id.

at 307.   In support of this holding, the Court stated:

      [U]nlike the right to an impartial jury guaranteed by
      the Sixth Amendment, peremptory challenges are not of
      federal constitutional dimension. . . .

            . . .
2
  Federal Rule of Criminal Procedure 24(b) provides a civilian criminal
defendant with 10 peremptory challenges.


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United States v. Miles, No. 01-0653/AF



            After objecting to the District Court’s denial of
       his for-cause challenge, Martinez-Salazar had the
       option of letting [the juror] sit on the petit jury
       and, upon conviction, pursuing a Sixth Amendment
       challenge on appeal. Instead, Martinez-Salazar
       elected to use a [peremptory] challenge to remove [the
       juror]. . . . This was Martinez-Salazar’s choice. The
       District Court did not demand – and Rule 24(b) did not
       require – that Martinez-Salazar use a peremptory
       challenge curatively.

            . . .

       Martinez-Salazar received precisely what federal law
       provided[.]

Id. at 311, 315, 317 (footnote omitted).      The Court summed it up

concisely: “A hard choice is not the same as no choice.”        Id. at

315.

                      3. Appellant’s Case

       Ross and Martinez-Salazar are dispositive in Appellant’s

case.    Appellant challenged only two members for cause -– Col

Neiheisel and Lt Col Fernandez.      The military judge granted the

challenge for cause against Col Neiheisel but denied it as to Lt

Col Fernandez.      Thereafter, Appellant used his peremptory

challenge to remove Lt Col Fernandez, resulting in an impartial

panel containing no members whom Appellant challenged for cause.

Consequently, any error in denying the challenge for cause

against Lt Col Fernandez was harmless in terms of the Sixth

Amendment.




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United States v. Miles, No. 01-0653/AF


       Moreover, deciding this case on the basis of harmless error

does not violate Appellant’s Fifth Amendment due process rights

because it does not deprive him of anything granted him by the

statutes or rules governing peremptory challenges and appellate

review of denied causal challenges in the military justice

system.

                  a. The Statutes and Rules

       The relevant statutes are Articles 41(b)(1) and 59(a),

Uniform Code of Military Justice, 10 U.S.C. §§ 841(b)(1) and

859(a)(2002).     Article 41(b)(1) provides simply that every

accused is entitled to “one peremptory challenge of the members

of the court.”3     It does not require that the challenge be used,

and does not suggest the appellate consequences of any given

use.    On the other hand, Article 59(a) states that “[a] finding

or sentence of court-martial may not be held incorrect on the

ground of an error of law unless the error materially prejudices

the substantial rights of an accused.”

       The relevant rules are R.C.M. 912(f)(4) and (g).           Rule

912(g) states merely that an accused “may challenge one member

peremptorily,” but does not require it.          Rule 912(f)(4)

discusses the appellate consequences that result in a variety of



3
  An accused is entitled to additional peremptory challenges in circumstances
other than those present in Appellant’s case. See Article 41(b)(2) and (c),
Uniform Code of Military Justice, 10 U.S.C. § 841(b)(2) and (c)(2002).



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United States v. Miles, No. 01-0653/AF


situations when a for-cause challenge is denied and the

peremptory challenge is implicated.    Specifically, it states:

     When a challenge for cause has been denied, failure
     by the challenging party to exercise a peremptory
     challenge against any member shall constitute waiver
     of further consideration of the challenge upon further
     review. However, when a challenge for cause is
     denied, a peremptory challenge by the challenging
     party against any member shall preserve the issue for
     later review, provided that when the member who was
     unsuccessfully challenged for cause is peremptorily
     challenged by the same party, that party must state
     that it would have exercised its peremptory challenge
     against another member of the challenge for cause had
     been granted.

(Emphasis added.)

     Significantly, nothing in the language of R.C.M. 912(f)(4)

precludes a harmless error analysis of the denied challenge for

cause.    When the requirements of R.C.M. 912(f)(4) are met, an

accused is guaranteed one thing only: that we will not apply

waiver.    The accused is not guaranteed that once through the

courthouse door with his issue thus preserved, normal

constitutional and statutory harmlessness analysis will not

apply.    Thus, I disagree with the majority’s rationale in

Armstrong, 54 M.J. at 54-55.

                      b. The Result

     Appellant had two options when the military judge denied

his challenge for cause against Lt Col Fernandez:    use his

peremptory challenge against Lt Col Fernandez, or use it against




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United States v. Miles, No. 01-0653/AF


another member.4     Nothing in the applicable statutes or rules

required him to use it against Lt Col Fernandez, either to cure

the military judge’s ruling or to preserve it.           As a result,

when Appellant did use his peremptory challenge against Lt Col

Fernandez, he “did not lose a peremptory challenge.            Rather, he

used the challenge in line with a principal reason for

peremptories: to help secure the constitutional guarantee of

trial by an impartial jury.”        Martinez-Salazar, 528 U.S. at 315-

16.

      Having made that hard yet discretionary choice, and having

thereby secured a panel comprised of no one whom Appellant then

or now asserted was in any way biased, any error in the military

judge’s denial of the challenge for cause against Lt Col

Fernandez was harmless beyond a reasonable doubt.            Art. 59(a);

United States v. Alameda, 57 M.J. 190, 199-200 (C.A.A.F.

2002)(harmless beyond a reasonable doubt standard for

constitutional error).

      That conclusion is especially appropriate here, because

Appellant never identified the specific, unbiased member he

intended to remove with his peremptory challenge.            Therefore, he

cannot even show the challenge against that member would have



4
  The third option of not using it at all would have resulted in Appellant
waiving the causal challenge issue absent plain error. Rule for Courts-
Martial 912(f)(4); See United States v. Tyndale, 56 M.J. 209, 217 (C.A.A.F.
2001).


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United States v. Miles, No. 01-0653/AF


been successful.   See United States v. Hurn, 55 M.J. 446, 448

(C.A.A.F. 2001)(“upon timely objection to a peremptory

challenge, . . . the burden shifts to the challenging party” to

prove the challenge is lawful); United States v. Witham, 47 M.J.

297 (C.A.A.F. 1997)(gender is unlawful basis for peremptory

challenge); United States v. Santiago-Davila, 26 M.J. 380

(C.M.A. 1988)(race is unlawful basis for peremptory challenge).

     For these reasons, I would affirm the decision of the court

below.




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