              UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                               UNITED STATES

                                                          v.

                                   Staff Sergeant JAMES R. SPEAR II
                                          United States Air Force

                                                   ACM 38537

                                                   30 July 2015

            Sentence adjudged 24 October 2013 by GCM convened at Buckley
            Air Force Base, Colorado. Military Judge: Grant L. Kratz.

            Approved Sentence: Bad-conduct discharge, confinement for 18 months,
            and reduction to E-3.

            Appellate Counsel for the Appellant:        Major Nicholas D. Carter;
            Major Isaac C. Kennen; and Philip D. Cave, Esquire.

            Appellate Counsel for the United States: Major Daniel J. Breen;
            Captain Thomas J. Alford; and Gerald R. Bruce, Esquire.

                                                       Before

                                     ALLRED, HECKER, and TELLER
                                        Appellate Military Judges

                                         OPINION OF THE COURT

             This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
                                 under AFCCA Rule of Practice and Procedure 18.4.



ALLRED, Chief Judge:

       The appellant was convicted at a general court-martial, consistent with his pleas,
of one specification of negligent dereliction of duty, three specifications of larceny of
military property, and one specification of housebreaking, and, contrary to his plea, of an
additional specification1 of larceny of military property, in violation of Articles 92, 121,
1
  For this specification of larceny, the appellant pled guilty to the lesser offense of stealing military property of a
value equal to or less than $500.00, but, after a litigated trial, the panel found him guilty of the original offense
which alleged the property was valued at more than $500.00. The panel also found the appellant not guilty of
and 130, UCMJ, 10 U.S.C. §§ 892, 921, 930. The panel of officer members sentenced
the appellant to a bad-conduct discharge, confinement for 18 months, and reduction to
E-3. The convening authority approved the sentence as adjudged.

        Before us, the appellant argues (1) the government violated his Fifth Amendment2
right to due process by prosecuting him before a court-martial panel of five members
whose verdict was not required to be unanimous, (2) the military judge abused his
discretion in denying the defense challenge of a court member for cause, (3) his plea of
guilty to dereliction of duty was improvident, and (4) the military judge abused his
discretion in refusing to give instructions concerning co-conspirator or accomplice
testimony. Finding no error prejudicial to the substantial rights of the appellant, we
affirm.

                                                  Background

       The appellant was a member of the Security Forces. On four occasions between
May 2012 and February 2013, he entered a Security Forces warehouse, without
authorization, for the purpose of stealing military property. During one of the entries, the
appellant took a backpack, batteries, flashlight, gloves, and a mosquito net. Another
time, he removed two rifle cases. On a third occasion, he stole a backpack. And on the
fourth, he took gear bags and plates of body armor.

       On 11 February 2013, with no military purpose, the appellant used his government
travel card to buy gas and food. The next day, he misused the card to make similar
purchases. On 8 April 2013, he misused the card a third time for a meal at a restaurant.

        Further facts relevant to this case are addressed below.

                                  I. Composition of the Court-Martial

        The appellant now contends for the first time that his Fifth Amendment right to
due process was violated because he was convicted by a court-martial panel of only five
members and because their verdict did not have to be unanimous.3 The appellant cites
Supreme Court cases discussing due process relative to the size and unanimity of civilian
juries, and he argues those decisions stand for the proposition that “there is some point at
which [court-martial panels are] too small to be considered constitutionally reliable for


another specification of larceny of military property and of communicating a threat, in violation of Articles 121 and
134, UCMJ, 10 U.S.C. §§ 921, 934.
2
  U.S. CONST. amend. V.
3
  This court previously addressed a related issue in United States v. Daniel, ACM 38322 (A.F. Ct. Crim. App.
1 April 2014) (unpub. op.), aff’d without opinion, 73 M.J. 473 (C.A.A.F. 2014), cert. denied (12 January 2015). The
appellant contends that adverse decision is distinguishable from his case because it dealt with verdicts by
six-member panels, not five-member panels.


                                                         2                                              ACM 38537
criminal conviction purposes, especially if they are not required to be unanimous in their
decision.”

        In Ballew v. Georgia, 435 U.S. 223, 245 (1978), the Supreme Court found a trial
by jury of less than six members deprives a defendant of the right to trial by a jury as
contemplated by the Sixth Amendment.4 The decision was based on empirical studies
showing that “the purpose and functioning of the jury in a criminal trial is seriously
impaired, and to a constitutional degree, by a reduction in size to below six members.”
Id. at 239. Subsequently, in Burch v. Louisiana, 441 U.S. 130 (1979), the Court held that
conviction by a non-unanimous six-member jury also fails to comply with the Sixth
Amendment, saying:

                   [M]uch the same reasons that led us in Ballew to decide that
                   use of a five-member jury threatened the fairness of the
                   proceeding and the proper role of the jury, lead us to conclude
                   now that conviction for a nonpetty offense by only five
                   members of a six-person jury presents a similar threat to
                   preservation of the substance of the jury trial guarantee and
                   justifies our requiring verdicts rendered by six-person juries
                   to be unanimous.

441 U.S. at 138.

       The appellant’s argument in this case focuses on due process under the Fifth
Amendment, contending that the Supreme Court’s decisions in Ballew and Burch are
based in due process.5 He also notes the Supreme Court’s statement that, in the military
context, determining whether the Due Process Clause applies to a facet of the military
justice system requires an evaluation of “whether the factors militating in favor [of, as
contended here, the right to a larger panel] are so extraordinarily weighty as to overcome

4
    The Sixth Amendment reads:
                   In all criminal prosecutions, the accused shall enjoy the right to a speedy and
                   public trial, by an impartial jury of the State and district wherein the crime shall
                   have been committed, which district shall have been previously ascertained by
                   law, and to be informed of the nature and cause of the accusation; to be
                   confronted with the witnesses against him; to have compulsory process for
                   obtaining witnesses in his favor, and to have the Assistance of Counsel for his
                   defence.
U.S. CONST. amend. VI. The Amendment’s provision as to trial by jury is made applicable to the states by the
Fourteenth Amendment. Duncan v. Louisiana, 391 U.S. 145 (1968).
5
  Our superior court has repeatedly held that the Sixth Amendment rights regarding a jury trial do not apply to
courts-martial. See, e.g., United States v. McClain, 22 M.J. 124, 128 (C.M.A.1986); United States v. Curtis,
32 M.J. 252, 267–68 (C.M.A. 1991) (rejecting a similar argument to the appellant’s within the context of a death
penalty case); United States v. Wiesen, 57 M.J. 48, 50 (C.A.A.F. 2002); United States v. Leonard, 63 M.J. 398, 399
(C.A.A.F. 2006); United States v. Easton, 71 M.J. 168, 175 (C.A.A.F. 2012) (citing Ex parte Quirin, 317 U.S. 1, 39
(1942)).


                                                            3                                             ACM 38537
the balance struck by Congress” between the needs of the military and the rights of
service members. Weiss v. United States, 510 U.S. 163, 177–78 (1994) (quoting
Middendorf v. Henry, 425 U.S. 25, 44 (1976)) (internal quotation marks omitted). In the
appellant’s view, this issue of panel size and unanimity should be subjected to judicial
review because the “balance struck by Congress” has radically changed6 and, in light of
the concerns expressed by the Supreme Court regarding juries, have unbalanced the
military justice system to the extent that permitting trials before a five-member panel not
required to be unanimous is no longer sustainable under the Constitution. He also notes
that, prior to 1921, Congress generally required 13 members unless convening a panel of
that size would cause “manifest injustice to the service.” See Martin v. Mott, 25 U.S. 19,
34–35 (1827). Given that history and the Supreme Court precedent discussed above, the
appellant urges this court to find that Congress’ decision to authorize trial by five
non-unanimous panel members is in conflict with the appellant’s constitutional right to a
larger panel.

       The Weiss standard is the appropriate test to determine whether a due process
violation has occurred in the court-martial setting. United States v. Vazquez, 72 M.J. 13,
18 (C.A.A.F. 2013). In Weiss, the Supreme Court noted that:

                          Congress, of course, is subject to the requirements of
                  the Due Process Clause when legislating in the area of
                  military affairs, and that Clause provides some measure of
                  protection to defendants in military proceedings. But in
                  determining what process is due, courts must give particular
                  deference to the determination of Congress, made under its
                  authority to regulate the land and naval forces, U.S. Const.,
                  Art. I, § 8. . . .

                  Congress has plenary control over rights, duties, and
                  responsibilities in the framework of the Military
                  Establishment, including regulations, procedures, and
                  remedies related to military discipline. Judicial deference
                  thus is at its apogee when reviewing congressional
                  decisionmaking in this area. Our deference extends to rules
                  relating to the rights of servicemembers: Congress has
                  primary responsibility for the delicate task of balancing the
                  rights of servicemen against the needs of the military. . . . We
                  have adhered to this principle of deference in a variety of
                  contexts where, as here, the constitutional rights of
                  servicemen were implicated.
6
  Among others, he cites to recent changes in the purpose and procedures of Article 32, UCMJ, 10 U.S.C § 832,
investigations, the removal of convening authorities’ discretion during post-trial review of sexual assault cases, and
the lack of a statute of limitations for sexual assault offenses.


                                                          4                                              ACM 38537
Weiss, 510 U.S. at 176–77 (second omission in original) (citations and quotation marks
omitted).3

       Judicial deference is “at its apogee” when an appellant is challenging the authority
of Congress to govern military affairs. Weiss, 510 U.S. at 177; Solorio v. United States,
483 U.S. 435, 447 (1987); see also Middendorf v. Henry, 425 U.S. 25, 43 (1976). It is
the appellant’s heavy burden to demonstrate that Congress’ determinations about panel
size and unanimity should not be followed. See id.; Weiss, 510 U.S. 181. He must show
the factors weighing in favor of his interest are so “extraordinarily weighty” that they
overcome the balance struck by Congress in making these determinations. See id. at 179.
The appellant here has failed to do so.

       To support his argument, the appellant contends the Supreme Court’s rationale in
Ballew is wholly applicable to the military justice system in that small groups of military
members are subject to the same problems identified by that court. As did two federal
courts that reviewed a similar claim by an appellant during a collateral attack on his
court-martial, we disagree. In Sanford v. United States, a federal district judge declined
to adopt and apply the empirical data from Ballew to the military context based on
substantial distinctions between the military and civilian legal systems, including that
military panel members are selected based on their qualifications and that each panel
member is selected from the accused’s own profession (that of military service).
567 F. Supp. 2d 114, 119–20 (D.D.C. 2008) (citing United States v. Wolff, 5 M.J. 923,
925 (N.C.M.R. 1978); United States v. Guilford, 8 M.J. 598, 602 (A.C.M.R. 1979)).
During the appeal of that decision, the court of appeals also faulted the appellant for
“recasting Ballew as a due process case that would apply directly to courts-martial as a
preexisting constitutional requirement,” when, in fact, “there is no prevailing Fifth
Amendment standard on this issue with which to require military conformity.” Sanford
v. United States, 586 F.3d 28, 35 (D.C. Cir. 2009).

       We find the reasoning and conclusions of these courts convincing. The appellant
has failed to demonstrate that Fifth Amendment due process requires a court-martial
panel to have six or more members who must be unanimous. With our deference to
Congress at its apogee, we find the appellant has failed to meet his heavy burden of
showing the existence of any extraordinarily weighty factors that would overcome the
balance struck by Congress between the needs of the military and the rights of service
members.

                             II. Challenge of Court Member

       The appellant alleges the military judge erred by denying a defense challenge for
cause against a potential panel member, Captain (Capt) SS. The appellant contends Capt



                                             5                                   ACM 38537
SS should have been excused under both the actual and implied bias standards. We
disagree.

        Rule for Courts-Martial (R.C.M.) 912(f)(1)(N) provides that a member shall 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 encompasses challenges based upon both actual and implied
bias.” United States v. Elfayoumi, 66 M.J. 354, 356 (C.A.A.F. 2008) (citing
United States v. Clay, 64 M.J. 274, 276 (C.A.A.F. 2007)).

       “The test for actual bias is whether any bias is such that it will not yield to the
evidence presented and the judge’s instructions.” United States v. Terry, 64 M.J. 295,
302 (C.A.A.F. 2007) (quoting United States v. Napoleon, 46 M.J. 279, 283
(C.A.A.F. 1997)) (internal quotation marks omitted). Because “[t]he existence of actual
bias is a question of fact,” we “provide the military judge with significant latitude in
determining whether it is present in a prospective member. Id. (citing United States v.
Warden, 51 M.J. 78, 81 (C.A.A.F. 1999)). Actual bias is reviewed “subjectively, through
the eyes of the military judge or the court members.” Warden, 51 M.J. at 81 (quoting
Napoleon, 46 M.J. at 283) (internal quotation marks omitted). A “challenge based on
actual bias is essentially one of credibility, and because the military judge has an
opportunity to observe the demeanor of court members and assess their credibility on voir
dire, a military judge’s ruling on actual bias is afforded deference.” United States v.
Briggs, 64 M.J. 285, 286 (C.A.A.F. 2007) (quoting United States v. Daulton,
45 M.J. 212, 217 (C.A.A.F. 1996)) (internal quotation marks omitted).

       Implied bias is “viewed through the eyes of the public, focusing on the appearance
of fairness.” United States v. Bagstad, 68 M.J. 460, 462 (C.A.A.F. 2010) (quoting
United States v. Clay, 64 M.J. 274, 276 (C.A.A.F. 2007)) (internal quotation marks
omitted). Therefore, appellate courts employ an objective standard when reviewing a
military judge’s decision regarding implied bias. United States v. Strand, 59 M.J. 455,
458 (C.A.A.F. 2004). We review issues of implied bias “under a standard less deferential
than abuse of discretion but more deferential than de novo.” Id. (quoting United States v.
Miles, 58 M.J. 192, 195 (C.A.A.F. 2003)) (internal quotation marks omitted). In
reviewing challenges for cause under the implied bias standard, military judges are
required to follow the “liberal grant” mandate, which “supports the UCMJ’s interest in
ensuring that members of the military have their guilt or innocence determined ‘by a jury
composed of individuals with a fair and open mind.’” United States v. James,
61 M.J. 132, 139 (C.A.A.F. 2005) (quoting United States v. Smart, 21 M.J. 15, 18
(C.M.A. 1985)). “[I]n the absence of actual bias, where a military judge considers a
challenge based on implied bias, recognizes his duty to liberally grant defense challenges,
and places his reasoning on the record, instances in which the military judge’s exercise of
discretion will be reversed will indeed be rare.” Clay, 64 M.J. at 277.



                                              6                                    ACM 38537
        In the present case, after the military judge denied the defense challenge for cause,
trial defense counsel challenged Capt SS peremptorily—and she was removed from the
court panel. For this reason alone, the appellant’s claim is meritless.

       Prior to 2005, R.C.M. 912(f)(4) permitted appellate review of a denied challenge
for cause even if the appellant successfully removed that panel member through use of a
peremptory challenge, so long as trial defense counsel stated on the record that he would
have exercised the defense’s peremptory challenge against another member if the
challenge for cause had been granted. See United States v. Leonard, 63 M.J. 398, 402–03
(C.A.A.F. 2006). In 2005, however, the President promulgated amendments to the
Manual for Courts-Martial that significantly altered this rule. Now, “[w]hen a challenge
for cause has been denied[,] the successful use of a peremptory challenge by either party,
excusing the challenged member from further participation in the court-martial, shall
preclude further consideration of the challenge of that excused member upon later
review.” R.C.M. 912(f)(4) (emphasis added). Under the current rule, because the
appellant removed Capt SS from the panel through the use of his peremptory challenge,
further review of the military judge’s denial of the appellant’s challenge for cause is
precluded.

       Moreover, even assuming our review of the matter is not precluded, we find no
error. The appellant argues that Capt SS should have been excused for two reasons: first,
because she might have been distracted by a personal scheduling conflict; and second,
because of responses she provided when asked about threats and violence.

       Scheduling Conflict. During group voir dire, the military judge asked the panel,
“[D]oes anyone know of anything of either a personal or professional nature, which
would cause you to be unable to give your full attention to these proceedings throughout
the trial?” Several members responded affirmatively, including Capt SS. When the
military judge followed up with Capt SS individually, she indicated that she was a single
parent with potential day care issues. She responded, however, that with adequate notice,
she could make arrangements to avoid any conflict.

        The appellant’s senior defense counsel (SDC) explored the day care issue further.
He asked Capt SS, “[W]ould it potentially get you upset about the situation if you had to
sit on a court-martial?” She replied, “Oh, no, sir.” The SDC then asked, “You’d still be
able to focus on the facts, focus on the evidence?” And she answered, “Yes, sir.”

       Responses Regarding Threats and Violence. During individual voir dire, the SDC
asked Capt SS whether she would be able sit as an impartial court member in a case
involving threats or violence. She responded candidly, “I don’t know.” When the SDC
probed further, Capt SS expressed a potential concern for her own safety and that of her
children—she believed it possible that, if the appellant was a violent offender, he might
seek retribution against those serving on his panel. Capt SS assured the court, however,


                                              7                                    ACM 38537
that she would be able to fairly consider the evidence at trial, and render a verdict of not
guilty if the appellant’s guilt was not proved beyond a reasonable doubt. She likewise
indicated a belief that she could objectively consider the evidence and render a fair
sentence.

      In ruling upon a defense challenge for cause against Capt SS based upon actual
and implied bias, the military judge declared:

                         [Capt SS] has certainly indicated that she could
                  consider all of the evidence. . . . She certainly was being
                  thoughtful with her answers, but I did not see an emotional
                  reaction from her.

                         I don’t believe her family situation comes into play.
                  She’s already exhibited an ability to have other people pick
                  up her children. There’s no indication that she would be
                  distracted by that situation. She seems very capable of
                  planning for it.

                         While she stated that discussion of such things,
                  certainly discussion of threats, generally, makes her
                  uncomfortable, I’m not sure that it’s not a bad thing for
                  people to be uncomfortable. In fact, one could question the
                  wisdom of people being comfortable in sitting in judgment of
                  others. I don’t believe that her language or her body language
                  indicated any sort of bias.

                         I understand the liberal [grant] mandate7 as well as the
                  implied bias standard. I don’t believe that a reasonable
                  individual looking in on these proceedings could believe that
                  [Capt SS]’s participation in the deliberation room would
                  create an appearance of unfairness.

                         Therefore, the defense challenge for cause based on
                  actual or implied bias against [Capt SS] is denied.

       In our view, the military judge properly considered the defense challenge based
upon implied as well as actual bias. He recognized his duty to liberally grant defense
challenges, and he placed his reasoning on the record. We find the military judge did not
abuse his discretion in denying the challenge for cause.

7
  The record of trial indicates the military judge stated, “I understand the liberal grand mandate . . . .” We find that
to be merely a typographical error.


                                                           8                                               ACM 38537
                                 III. Providence of Plea

       The appellant was charged with willful dereliction of duty for misusing his
government travel card on divers occasions. He pled and was found guilty of the lesser
offense of negligent dereliction of duty. On appeal, he claims his plea of guilty to this
offense was improvident because the military judge failed to address the defense of
ignorance or mistake of fact.

       The military judge properly advised the appellant as to the elements of the lesser
offense to which he was pleading guilty, as follows:

                    The first element is that you had a certain prescribed
             duty, that is; to refrain from using your government travel
             card for unauthorized purposes.

                  The second is that you knew or reasonably should have
             known of the assigned duty.

                    And three . . . that within the continental United States,
             on divers occasions between on or about 1 February 2013 and
             on or about 15 April 2013, you were, through neglect, derelict
             in the performance of that duty by negligently failing to
             refrain from using your government travel card for
             unauthorized purposes.

The definitions the military provided the appellant included the following:

             “Dereliction” is defined as a failure in duty, a shortcoming, or
             delinquency.

             “Negligently” means an act or failure to act by a person under
             a duty to use due care, which demonstrates a lack of care,
             which a reasonably prudent person would have used under the
             same or similar circumstances.

             That an individual reasonably should have known of duties
             may be demonstrated by regulations, manuals, customs,
             academic literature, testimony of persons who have held
             similar or related positions, or similar evidence.

       During the providence inquiry, the appellant expressly agreed that the elements
and definitions given him by the military judge correctly described what he did. He
declared under oath that he knew, through briefings and training, that the government


                                             9                                   ACM 38537
travel card issued to him was to be used “only for approved expenses, such as for TDYs,
PCS’s, or while on orders” and that he had a duty to refrain from using his card on any
other occasions. He went on to describe three separate situations in which he negligently
and without authorization used the card to purchase gas and food. He explained further:

                     [W]hen I made these transactions I was not in a TDY
              or PCS status, or in any other—other status that would
              authorize me to use my GTC. Instead of exercising due care
              and paying for my expenses with a personal card, I carelessly
              removed a card from my wallet, and paid with my
              [government travel card].

                      No one made me do this. I did not believe I was
              authorized to do so. And if I had exercised greater care and
              caution, I could have avoided misusing the [government
              travel card].

When asked if he could have avoided using the government travel card if he had wanted
to, the appellant responded “yes.”

       Before us, the appellant now claims the military judge erred by failing “to ensure
that his use of the [government travel card] was not based on a mistaken belief that he
was actually using a personal credit card.” We disagree.

       During a guilty plea inquiry, the accused must establish not only that he believes
he is guilty but also that the factual circumstances support that plea. United States v.
Goodman, 70 M.J. 396, 399 (C.A.A.F. 2011). If, at any time during the proceeding, “an
accused sets up matter inconsistent with the plea, . . . the military judge must either
resolve the apparent inconsistency or reject the plea.” Id. (quoting Article 45(a), UCMJ,
10 U.S.C. § 845(a)) (internal quotation marks omitted). Once the military judge has
accepted the guilty plea and entered findings of guilty, an appellate court will not set
them aside unless it finds a substantial basis in law or fact for questioning the plea.
United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008); see also Article 45(a),
UCMJ, 10 U.S.C. § 845(a). To rise to the level of inconsistency contemplated by Article
45(a), UCMJ, the matters raised at trial must have reasonably raised the question of a
defense or must have been inconsistent with the plea in some respect. United States v.
Roane, 43 M.J. 93, 98 (C.A.A.F. 1995). In determining on appeal whether there is a
substantial inconsistency, this court considers the “full context” of the plea inquiry.
United States v. Smauley, 42 M.J. 449, 452 (C.A.A.F. 1995).

      “[I]t is a defense to an offense that the accused held, as a result of ignorance or
mistake, an incorrect belief of the true circumstances such that, if the circumstances were
as the accused believed them, the accused would not be guilty of the offense.”


                                            10                                   ACM 38537
R.C.M. 916(j)(1). Generally, for crimes not involving specific intent, willfulness,
knowledge, or premeditation, the ignorance or mistake must be both honest (actual) and
reasonable. Id. Thus, even if the appellant honestly and mistakenly believed he had used
his personal credit card, that belief had to be objectively reasonable under the
circumstances. See id. Furthermore, the ignorance or mistake of fact cannot be based on
the accused’s carelessness or his negligent failure to discover the true facts. See
United States v. True, 41 M.J. 426 (C.A.A.F. 1995).

        Here, we find no substantial basis, either in law or fact, to question the appellant’s
plea. The appellant admitted he acted negligently on these occasions, stating he had
failed to exercise due care when he removed the card from his wallet. He also described
his actions as careless. Under these circumstances—including the appellant’s misuse of
the government travel card on three separate occasions over a two month period—we are
convinced that the defense of ignorance or mistake was not reasonably raised during the
plea inquiry and the appellant’s responses in the providence inquiry did not set up a
matter in substantial conflict with his plea.

                                       IV. Instruction to Members

        Airman First Class (A1C) RS and Senior Airman (SrA) GD were fellow Security
Forces members who provided testimony against the appellant during findings. In
discussing findings instructions, trial defense counsel requested that the military judge
provide co-conspirator and accomplice instructions pertaining to these individuals. 8 The
trial counsel objected and the military judge declined to give the instructions, finding
neither of the individuals was culpably involved in any of the crimes with which the
appellant was charged. On appeal, the appellant claims the military judge erred by not
giving an accomplice instruction.

      Whether a military judge properly instructs the court members is a question of law
we review de novo. United States v. Hibbard, 58 M.J. 71, 75 (C.A.A.F. 2003). A

8
 Trial defense counsel offered no specifics as to the wording of their proposed instructions. Presumably counsel
desired the Military Judges’ Benchbook instruction regarding accomplices, which reads in pertinent part:

                 A witness is an accomplice if he/she was criminally involved in an offense with
                 which the accused is charged. The purpose of this advice is to call to your
                 attention a factor specifically affecting the witness’s believability, that is, a
                 motive to falsify his/her testimony in whole or in part, because of an obvious
                 self-interest under the circumstances.

                 (For example, an accomplice may be motivated to falsify testimony in whole or
                 in part because of his/her own self-interest in receiving (immunity from
                 prosecution) (leniency in a forthcoming prosecution) (__________).)

Department of the Army Pamphlet (D.A. Pam.) 27-9, Military Judges’ Benchbook, ¶ 7-10 (1 January 2010).



                                                        11                                           ACM 38537
military judge’s decision not to provide an instruction is reviewed for an abuse of
discretion. United States v. Maxwell, 45 M.J. 406, 424 (C.A.A.F. 1996). “[T]he military
judge has substantial discretion in deciding on the instructions to give and whether [a
defense-requested] instruction is appropriate.” United States v. Miller, 58 M.J. 266, 270
(C.A.A.F. 2003). “This discretion must be exercised in light of correct principles of law
as applied to the facts and circumstances of the case.” Id. Denial of a requested
instruction is error if the instruction is (1) correct, (2) not substantially covered in the
main instruction, and (3) “‘is on such a vital point in the case that the failure to give it
deprived [the] defendant of a defense or seriously impaired its effective presentation.’”
Id. (alteration in original) (quoting United States v. Zamberlan, 45 M.J. 491, 492–93
(C.A.A.F. 1997)). For the military judge’s refusal to instruct the members to be error, all
three prongs of the test in Miller must be satisfied.

       In the present case, the appellant has failed to meet the third prong of the Miller
test. That is, on the particular facts of this unique case, the requested instruction was not
on such a vital point that the failure to give it deprived the appellant of a defense or
seriously impaired effective presentation. After the appellant entered his pleas, only four
matters were litigated during findings. The appellant prevailed on three of those matters.9
The members rendered only one finding contrary to the appellant’s own pleas—and in
that instance, the testimony and credibility of A1C RS and SrA GD were not material to
the outcome.10 Under these circumstances, the lack of an accomplice instruction did not
deprive the appellant of a defense and did not seriously impair the effective presentation
of the defense case.




9
   In two instances—specifications alleging larceny of rifle magazines and communicating a threat, in violation of
Articles 121 and 134, UCMJ, 10 U.S.C. §§ 921, 934—the appellant pled and was found not guilty. In the third
instance—a specification alleging larceny of rifle cases of a value greater than $500.00, in violation of Article 121,
UCMJ, 10 U.S.C. § 921—the appellant was found, in accordance with his plea, guilty only of the lesser offense of
larceny of property equal to or less than $500.00.
10
    In the single instance where a finding of guilty exceeded his pleas, the appellant had pled guilty to the lesser
offense of stealing military property consisting of a gear bag (singular) and body armor plates, of a value equal to or
less than $500.00—and the members found him guilty of the greater offense alleging theft of gear bags (plural) and
property having a value more than $500.00. In our view, the testimony of the witnesses in question—Airman First
Class (A1C) RS and Senior Airman (SrA) GD—could have had little impact on the outcome. Neither witness
offered any evidence as to the value of the stolen bags—indeed SrA GD provided no testimony regarding stolen
bags whatever—and the testimony of A1C RS that he saw the appellant steal a single bag was consistent with the
appellant’s own admission that he stole just one bag.


                                                          12                                              ACM 38537
                                       Conclusion

       The approved findings and sentence are correct in law and fact, and no error
prejudicial to the substantial rights of the appellant occurred. Articles 59(a) and 66(c),
UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved findings and sentence
are AFFIRMED.



             FOR THE COURT



             STEVEN LUCAS
             Clerk of the Court




                                            13                                  ACM 38537
