                         UNITED STATES, Appellee

                                         v.

              Deric B. HOLLINGS, Private First Class
                   U.S. Marine Corps, Appellant


                                  No. 07-0084
                        Crim. App. No. 200500497

       United States Court of Appeals for the Armed Forces

                             Argued May 1, 2007

                          Decided June 19, 2007

BAKER, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN, STUCKY, and RYAN, JJ., joined.


                                     Counsel


For Appellant:   Lieutenant Brian L. Mizer, JAGC, USN (argued).


For Appellee: Captain Roger E. Mattioli, USMC (argued);
Commander Paul C. LeBlanc, JAGC, USN (on brief).



Military Judges:    R. S. Chester, P. J. Ware, and L. Korzan



            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Hollings, No. 07-0084/MC


     Judge BAKER delivered the opinion of the Court.

     At a special court-martial consisting of officer members,

Appellant was convicted of disrespect toward a noncommissioned

officer, failure to obey a lawful order, and violation of a

general order, in violation of Articles 91 and 92, Uniform Code

of Military Justice (UCMJ), 10 U.S.C. §§ 891, 892 (2000).     The

adjudged and approved sentence was a bad-conduct discharge and

no other punishments.   The Court of Criminal Appeals affirmed in

an unpublished opinion.   United States v. Hollings, No. NMCCA

200500497 (N-M. Ct. Crim. App. Oct. 18, 2006).   We granted

review of the following issue:

     WHETHER THE MILITARY JUDGE FAILED TO ADHERE TO THE
     LIBERAL GRANT MANDATE WHEN HE DENIED A DEFENSE
     CHALLENGE FOR CAUSE AGAINST CHIEF WARRANT OFFICER W
     WHO SERVED AS ACTING LEGAL OFFICER TO THE CONVENING
     AUTHORITY IN APPELLANT’S CASE.

     Chief Warrant Officer (CWO-5) Westfall was the installation

personnel officer at Marine Corps Air Station, Miramar,

California.   During voir dire, he stated that at the time

Appellant’s charges were preferred, he was “dual-hatted” as the

personnel officer for both the station as well as Headquarters

and Headquarters Squadron (H&HS).    As a result, he was on the

distribution list for the squadron weekly legal report.1     He

stated that in the two weeks prior to the court-martial he

1
  This report appears to have been a weekly listing of
individuals denoting where their cases were at the various
stages of legal processing.

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United States v. Hollings, No. 07-0084/MC


recalled Appellant’s name on the report listing the particular

articles of the UCMJ he was alleged to have violated and the

fact that Appellant was pending court-martial at the time.      He

characterized his interaction with the H&HS legal officer as

follows:

     If she [the H&HS legal officer] needed something from
     me in support [of] her legal actions, or if I had to
     certify the unit diaries, recording the completed
     legal action, I would do that. And if I needed
     information from her to adjust the morning report or
     to keep track of some of these other administrative
     actions, then I would come back to see her.

Regarding the certification of unit diaries,2 he indicated that

he performed this task on days that the legal officer was not

available.    He also stated that although certification of unit

diaries was a job that a legal officer could do and usually did,

he stated that it was a job that a personnel officer was

required to do.    The relevant voir dire exchange follows:

     DC: So when she [the legal officer] was unavailable
     in the February timeframe, you would act as the legal
     officer for H&HS?

     MBR: No, sir. I didn’t act as the legal officer, but
     I did certify the unit diary transactions which
     recorded NJPs or court-martials [sic].

     DC:     Is that a job that a legal officer usually does?



2
  The unit diary is the administrative medium used to report
events and occurrences of the unit, personnel actions and other
data relative to members of the unit. Marine Corps Total Force
System Personnel Reporting Instructions Manual (MCTFSPRIM),
Marine Corps Order PL080.40C, para. 20100 (June 7, 2001).

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United States v. Hollings, No. 07-0084/MC


       MBR: It is a job that a legal officer can and usually
       does. It also [is] a job that [the] personnel officer
       is required to do, certify unit diaries.

       DC: So you performed some duties of a legal officer
       in February?

       MBR: I certified unit diaries. I didn’t necessarily
       request legal services. I didn’t type Group NJPs,
       other UPBs [unit punishment books], I didn’t go in for
       court-martials [sic] or office hours,3 I didn’t give
       the [commanding officer] any opinions or legal
       recommendations.

Defense counsel challenged CWO-5 Westfall for cause, claiming

that he qualified as a “legal officer” under Rule for Courts-

Martial (R.C.M.) 912(f)(1)(G).    Defense counsel did not

challenge CWO-5 Westfall on the grounds of actual or implied

bias, a point verified by the military judge as part of his

ruling.    Specifically, the military judge stated:

       I did not hear him say, Captain Smith, that he was
       involved in this case specifically, that he actually
       reviewed or processed the charges that are pending
       before this court-martial. And I don’t believe that
       the limited involvement, if you will, in reviewing the
       standard weekly legal report rises to the level of a
       challenge for cause. If the sole basis for the
       challenge is that he is or was acting as a legal
       officer in this case, that basis doesn’t exist and the
       challenge for cause is denied.

The United States Navy-Marine Corps Court of Criminal Appeals

agreed, concluding that “[t]he sole basis alleged at trial for

the challenge was that CWO Westfall was the unit legal officer

and was therefore prohibited from sitting as a member per R.C.M.


3
    Hearings pursuant to Article 15, UCMJ, 10 U.S.C. § 815 (2000).

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United States v. Hollings, No. 07-0084/MC


912(f)(1)(G).    The Appellant does not allege, nor do we find,

evidence of bias, either actual or implied.”   Hollings, No.

NMCCA 200500497, slip op. at 3.

       On appeal to this Court, Appellant renews his argument that

CWO-5 Westfall acted as legal officer in this case.   He further

argues that Westfall should have been removed for cause on the

ground of implied bias and that in denying Appellant’s challenge

for cause, the military judge failed to adhere to the liberal

grant mandate.    We address each argument in turn.

       R.C.M. 912(f)(1)(G) provides that “A member shall be

excused for cause whenever it appears that the member: . . . Has

acted in the same case as convening authority or as the legal

officer or staff judge advocate to the convening authority.”

Article 1 of the UCMJ4 defines “legal officer” as “any

commissioned officer of the . . . Marine Corps . . . designated

to perform legal duties for a command.”   Put directly, CWO-5

Westfall did not meet this definition and he did not act in this

case as the legal officer.    He did what personnel officers do,

he certified the unit diary.   On this record, any argument to

the contrary is at best a reach.

       Appellant next argues in the alternative that CWO-5

Westfall should have been excused on the ground of implied bias.


4
    10 U.S.C. § 801 (2000).


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United States v. Hollings, No. 07-0084/MC


Whether Westfall technically served as a “legal officer” in this

case or not, he was a “career legal officer,” he was familiar

with Appellant’s case as a result of his duties, and at least

some of those duties were legal in nature.    According to

Appellant, as a result, CWO-5 Westfall’s participation would

undermine the public’s perception in the impartiality and

fairness of Appellant’s court martial.

     We are left to wonder whether we are reviewing a different

record of trial.   According to CWO-5 Westfall’s voir dire

testimony, he served as “Personnel Officer for the station.”      He

also had occasion to cover the personnel officer’s

responsibilities for H&HS.   This was Appellant’s squadron.      In

this capacity, CWO-5 Westfall “was on the distribution for the

H&HS legal report, the weekly legal report, wherein the

defendant’s name and the charges against him are represented on

that report.   No other detailed information is present on that

report.”   Westfall had served in the Marine Corps as a legal

officer and went to the Naval Justice School for the legal

officer’s course in 1990 or 1991.     But he was not a “career

legal officer.”    He served as a legal officer for “two years

plus” following the legal officer’s course.    He then “assisted

the legal officer at the infantry battalion on my next tour,

helped out a little at the regiment, and have pretty much been

relieved from the legal officer responsibility since then.”


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United States v. Hollings, No. 07-0084/MC


     CWO-5 Westfall was not a legal officer at the time of

Appellant’s court-martial.    His knowledge was derived from the

H&HS weekly legal report, which he reviewed in his capacity as

acting personnel officer for the squadron.   There is no

indication that CWO-5 Westfall knew Appellant, and the only

information in the weekly legal report about the case pertained

to his name and the charges against him, facts of record

immediately evident to anyone attending Appellant’s court-

martial.   When asked by trial counsel whether he would “have any

reluctance whatsoever to [disagree with the convening

authority]” on the findings or sentence in this case, CWO-5

Westfall responded, “No, sir.   I would be able to do what I

thought was right.”   He then added a finishing touch of salt:

“And besides, I can’t get promoted again, so it really doesn’t

matter.”   Defense counsel did not challenge CWO-5 Westfall on

the ground of implied bias.   And, on this record, we concur with

the lower court’s finding that there was no evidence of bias,

actual or implied.

     Nonetheless, Appellant argues that the military judge erred

because he did not indicate that he addressed implied bias or

considered the liberal grant mandate in ruling on Appellant’s

challenge.   We have enjoined military judges to follow the

liberal grant mandate in evaluating challenges for cause.

United States v. Clay, 64 M.J. 274, 277 (C.A.A.F. 2007); United


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United States v. Hollings, No. 07-0084/MC


States v. Leonard, 63 M.J. 398, 402 (C.A.A.F. 2006); United

States v. Moreno, 63 M.J. 129, 134 (C.A.A.F. 2006).       A military

judge who addresses the concept on the record is entitled to

greater deference than one who does not.    Clay, 64 M.J. at 277.

However, this does not suggest that the military judge is

entitled to no deference.   Moreover, at trial the military judge

did not address actual or implied bias because defense counsel

argued that the sole basis for challenging CWO-5 Westfall was

his per se disqualification as a legal officer under R.C.M.

912(f)(1)(G).

     With respect to Appellant’s implied bias argument, the

liberal grant mandate recognizes the military judge’s

responsibility to prevent both the reality and the appearance of

bias involving potential court members.    Id.   R.C.M.

912(f)(1)(N) requires the removal of a member “in the interest

of having the court-martial free from substantial doubt as to

legality, fairness and impartiality.”   For the reasons stated

above, no such doubts were raised by CWO-5 Westfall’s responses

during voir dire, and the military judge acted within his

discretion in denying the challenge for cause.

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




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