United States, Appellee

v.

Mark L. MINYARD, Airman
U.S. Air Force, Appellant
 

No. 96-0901

Crim. App. No. 31461

United States Court of Appeals for the Armed Forces

Argued January 9, 1997

Decided June 24, 1997

Counsel

For Appellant: Captain W. Craig Mullen (argued); Colonel David W. Madsen (on brief); Colonel Jay L. Cohen and Lieutenant Colonel Kim L. Sheffield.

For Appellee: Captain Mitchel Neurock (argued); Colonel Theodore J. Fink, Lieutenant Colonel Michael J. Breslin, and Captain Deborah M. Carr (on brief); Lieutenant Colonel Robert E. Williams, Jr. (USAFR).

Military Judge: Charles W. Hasskamp

Tried at Travis Air Force Base, California
 
 

THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.


 
 

GIERKE, Judge:

A general court-martial composed of officer members convicted appellant, contrary to his pleas, of stealing U.S. currency of a value greater than $100.00 (7 specifications) and wrongfully appropriating an American Express card, in violation of Article 121, Uniform Code of Military Justice, 10 USC §921. The adjudged and approved sentence provides for a bad-conduct discharge, confinement for 60 days, partial forfeitures for 2 months, and reduction to the lowest enlisted grade. The Court of Criminal Appeals affirmed the findings and sentence in an unpublished opinion.

We granted review of the following issue:

WHETHER THE MILITARY JUDGE ERRED TO THE PREJUDICE OF APPELLANT BY DENYING THE CHALLENGES FOR CAUSE. Two challenges for cause are at issue in this case. The first involved a defense challenge of a lieutenant colonel who had previously served as a judge advocate and area defense counsel. The second, on which we turn our decision, involved Major (Maj) B, the wife of Office of Special Investigations Special Agent B, one of the agents responsible for investigating the crimes for which appellant was tried.

During voir dire, Maj B stated that she and her husband "don’t discuss cases." She initially said that she had not heard her husband "make any references at all to this case." When asked, however, if she had "heard him make any references at all that could be applied to this case," she answered, "Yes." Asked to elaborate, she testified:

It was a conversation on the telephone but I don’t know who he was talking to because I didn’t answer the telephone when we were at home. He made a comment like, "More money?" So when he got off the phone I said, "What are you talking about, ‘more money’?" I didn’t know who he was talking to. He said, "Oh, it is a case that is being worked on. Somebody said that this guy took more money." That would be something that I might associate with this case. Defense counsel challenged Maj B for cause on the ground that she "is the wife of one of the case agents or the assistant case agent . . . . In this case, if for no other reason, we would think that the appearance aspect of this: the agent whose name is throughout this case file." Defense counsel argued that Maj B should not sit on the court panel in order to keep the court-martial "free from substantial doubt as to reality [sic], fairness and impartiality." Trial counsel did not dispute Special Agent B’s role in the investigation of this case, but informed the military judge that the prosecution "does not anticipate Agent [B]’s name coming up even once in this case." The military judge denied the challenge, remarking that Maj B’s "answers were significantly direct, sincere, and that they reflected that she keeps apart their two particular professional careers; that she knows nothing about this particular case; [and] that she has not formed any opinion whatsoever in this particular case." The military judge also ruled, "I don’t see a challenge for cause for . . . [Maj B] based on the fact that she is the spouse of that particular agent."

The record before us is unambiguous. Contrary to the assertion of our dissenting colleague that "there is no evidence in the record that . . . [Special Agent B] was involved with appellant’s case," ___ MJ at (8), counsel for both sides agreed, on the record, that Special Agent B was an assistant case agent in the investigation of the charges before the court-martial.

RCM 912 (f)(1)(N), Manual for Courts-Martial, United States (1995 ed.), codifies a general ground for challenge applicable when a 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." We have said that "[t]his general ground includes actual bias as well as ‘implied bias.’" United States v. Daulton, 45 MJ 212, 217 (1996), citing United States v. Harris, 13 MJ 288, 292 (CMA 1982). "The focus of the rule is on the perception or appearance of fairness." United States v. Dale, 42 MJ 384, 386 (1995). The rule "reflects the President’s concern with avoiding even the perception of bias, predisposition, or partiality." United States v. Lake, 36 MJ 317, 323 (CMA 1993).

The issue in this case involves implied bias rather than actual bias. Although our standard of review is abuse of discretion for challenges based on actual bias as well as those based on implied bias, we give less deference to the military judge when implied bias is involved. See generally United States v. White, 36 MJ 284 (1993).

"A challenge for cause based on actual bias is ‘essentially one of credibility.’" Because of the military judge’s superior "opportunity to observe the demeanor of court members and assess their credibility during voir dire," a military judge’s ruling on a challenge based on actual bias is given "great deference." United States v. Daulton, 45 MJ at 217. "Implied bias," on the other hand, "is reviewed under an objective standard . . . . Implied bias is not viewed through the eyes of the military judge or the court members, but through the eyes of the public." Id. at 217. "[T]he military judge’s assessment of . . . credibility . . . is not dispositive on the issue of implied bias." Id. at 218.

We hold that the military judge abused his discretion in denying the challenge of Maj B. Under an objective standard, there is a "substantial doubt" about the "legality, fairness, and impartiality" of a court-martial when a court member sits in judgment of a case investigated by her husband. Like the participation of the security police officer in Dale and the participation of the member whose sister and mother were victims of sexual abuse in Daulton, Maj B’s participation in a case investigated by her husband does not pass the test of public confidence contemplated by RCM 912(f)(1)(N). See RCM 912(f), Discussion (example of basis for challenge is that "the member . . . is closely related to . . . a witness in the case"); see also United States v. Glenn, 25 MJ 278, 280 (CMA 1987) ("We find it difficult to believe that either appellant or the public could be convinced that he received a fair trial when he was not apprised of the fact that a member of the staff judge advocate’s family was sitting on his court-martial.").

Contrary to our dissenting colleague’s assertions, this decision is not a reflection on Maj B’s integrity, "a rejection of rehabilitation of potential court members," ___ MJ at (1), or a holding that law enforcement personnel and their spouses are per se ineligible to sit as court members. We do not suggest that Maj B’s responses on voir dire were anything but completely honest and sincere. We are not holding that law enforcement personnel and their spouses are per se disqualified from sitting on courts-martial.

This case is not based on Maj B’s relationship with a person who happens to be in law enforcement. It is based on her relationship to a criminal investigator who investigated the charges in the specific case before her. We hold only that Maj B’s participation in a case investigated by her husband would cause a reasonable member of the public to have "substantial doubt as to legality, fairness, and impartiality" of the proceedings. RCM 912(f)(1)(N).

The decision of the United States Air Force Court of Criminal Appeals is reversed. The findings and sentence are set aside. The record of trial is returned to the Judge Advocate General of the Air Force. A rehearing may be ordered.

Judges SULLIVAN and EFFRON concur.


Cox, Chief Judge (concurring):

I write only because of the doomful, apocalyptic dissent of my learned colleague. This case is simple. The wife of a policeman who investigated the case was allowed to sit in judgment of the man her husband accused of committing the crime. I would allow neither the fox nor the vixen to guard the hen house.

With all due respect, we are not talking abstractly about a policeman or a policeman's wife. We are talking about "the" policeman and “ his” wife. See RCM 912 (f)(1)(N), Manual for Courts-Martial, United States (1995 ed.).


CRAWFORD, Judge (dissenting):

Despite their assertion to the contrary, the majority's decision is either a reflection on the integrity of the court member or a rejection of rehabilitation of potential court members. Neither is appropriate. Additionally, it misapplies our "clear-abuse-of-discretion" standard of review, United States v. White, 36 MJ 284, 287 (CMA 1993). For these reasons I dissent.

FACTS

This case is similar to others we have seen. See, e.g., United States v. Roane, 43 MJ 93 (1995) (accused used roommate's telephone jack); United States v. Reed, 34 MJ 282 (CMA 1992) (accused used roommate's ATM card). The issue is whether appellant had permission to use his friend's American Express card for charges totaling nearly $5,000. No law enforcement officers testified in this case either at trial or at the investigation under Article 32, Uniform Code of Military Justice, 10 USC § 832. Appellant's friend, Airman First Class John R. DiRoma, Jr., testified, along with an auditor from American Express, for the Government. The only witness for the defense was appellant. The issue centered around appellant's belief that he could lawfully take and use his friend's ATM card.

The court members were placed under oath for the voir dire. During the voir dire of the court members, it was learned that Lieutenant Colonel (LtCol) B was previously an area defense counsel, while Major (Maj) B was married to an OSI agent.

Maj B testified on voir dire as follows:

TC: Thank you. Major [B], I just want to ask you a couple of questions about your association with OSI. I understand your husband is an agent for them, and it was also my understanding that he was involved in some way on this particular case. Are you aware of that?

MEMB MAJ [B]: No. I had no idea. We don't discuss cases. If he ever gave me any information at all - if he ever did - I would want to know more. So, I just don't want to know. We don't discuss any cases.

TC: Have you heard him make any references at all to this case?

  MEMB MAJ [B]: No.

TC: Let me ask you an even more specific question. Have you heard him make any references at all that could be applied to this case?

MEMB MAJ [B]: Yes.

TC: If I could ask, what references would those be?

  MEMB MAJ [B]: It was a conversation on the telephone but I don't know who he was talking to because I didn't answer the telephone when we were at home. He made a comment like, "More money?" So when he got off the phone I said, "What are you talking about, 'more money'? I didn't know who he was talking to. He said, "Oh, it is a case that is being worked on. Somebody said that this guy took more money." That would be something that I might associate with this case.

TC: Did he say anything about that case?

  MEMB MAJ [B]: No.

TC: So you have a standing rule in your house not to discuss cases?

MEMB MAJ [B]: Yes.

  TC: Just one last general thing. Is there anything about your marriage to your husband or in your relationship to your husband that would cause you to have any problems in sitting in a court-martial?

MEMB MAJ [B]: No. I mean since he has worked in OSI, it has always been his work and mine has been mine. I don't really get involved with what he does.

The judge later questioned Maj B, as follows:

  MJ: Just to clarify for the record, you had no association with this case based on your relationship with your husband?

MEMB MAJ [B]: Absolutely not.

MJ: Or his professional association with OSI?

MEMB MAJ [B]: No, sir.

  MJ: And you heard none of the details of this particular case?

MEMB MAJ [B]: No, sir.

MJ: And you have not formed any opinions in regards to the charge and specifications in this case based on your husband's professional occupation with the Air Force?

  MEMB MAJ [B]: No.
Both members articulated their ability to remain impartial, listen to the evidence, and follow the judge's instructions. There was no questioning of Maj B as to the other witnesses in the case.

During argument on the challenge for cause against Maj B, defense counsel stated:

Despite her protestations that they do not discuss things, I find that highly unusual. That would be a unique case in which one's profession did not bleed over into their personal lives, and that there were no theoretical discussions as to the value or the procedures or processes of people they deal with in their jobs. In this case, if for no other reason, we would think that the appearance aspect of this: the agent whose name is throughout this case file. The defense did not call her husband in rebuttal of her testimony.

The prosecutor argued the following:

The United States does not anticipate Agent [B]'