United States v. Covitz ( 2022 )

***CORRECTED COPY – DESTROY ALL OTHERS***
U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM 40193
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UNITED STATES
Appellee
v.
Colin R. COVITZ
Captain (O-3), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Decided 30 September 2022 1
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Military Judge: Colin P. Eichenberger.
Sentence: Sentence adjudged on 18 June 2021 by GCM convened at
Creech Air Force Base, Nevada. Sentence entered by military judge on
8 September 2021: Dismissal, confinement for 8 months, and forfeiture
of all pay and allowances.
For Appellant: Scott Hockenberry, Esquire (argued); Major Matthew L.
Blyth, USAF.
For Appellee: Major John P. Patera, USAF (argued); Major Lecia E.
Wright, USAF; Mary Ellen Payne, Esquire.
Before KEY, ANNEXSTAD, and MEGINLEY, Appellate Military
Judges.
Senior Judge KEY delivered the opinion of the court, in which Judge
ANNEXSTAD and Judge MEGINLEY joined.
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This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
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1 The court heard oral argument in this case on 29 June 2022.
United States v. Covitz, No. ACM 40193
KEY, Senior Judge:
A general court-martial composed of officer members convicted Appellant,
contrary to his pleas, of four specifications of domestic violence, in violation of
Article 128b, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 928b.2 Ap-
pellant chose the military judge as the sentencing authority and was sentenced
to a dismissal, confinement for eight months, and to forfeit all his pay and al-
lowances.
Appellant has raised five issues on appeal: (1) whether the military judge
erred by denying challenges for cause against multiple panel members; (2)
whether the military judge erred by preventing cross-examination about cer-
tain matters; (3) whether the military judge erred in instructing the panel
members that they could find Appellant guilty via exceptions and substitutions
that would have created a fatal variance; (4) whether Appellant’s convictions
are legally and factually sufficient; and (5) whether Appellant was denied the
right to a unanimous guilty verdict.3 We decide the first issue in Appellant’s
favor, and we set aside the findings and the sentence. As a result, we do not
reach the remainder of the issues he has raised.
I. BACKGROUND
A. Appellant’s Offenses
Appellant’s convictions arose from allegations he assaulted Ms. CC, his for-
mer girlfriend, on 10 February 2020. Appellant had moved to Las Vegas in
2016 after he received orders reassigning him to nearby Creech Air Force Base.
While living in Las Vegas, he met Ms. CC, who was a local civilian woman, and
the two began dating. Ms. CC and her two teenage sons moved in with Appel-
lant in January 2017, and in June 2017 all four moved into a new house which
Appellant had purchased. In January 2018, Appellant and Ms. CC broke up,
but all four remained in the house together. Shortly thereafter, Ms. CC began
seeing Major (Maj) RW, a drone pilot with whom Appellant regularly per-
formed missions.4 Later that year, Appellant sought to revive his relationship
2 Unless otherwise noted, all references in this opinion to the UCMJ and the Rules for
Courts-Martial are to the Manual for Courts-Martial, United States (2019 ed.).
3 Appellant personally raises issue (5) pursuant to United States v. Grostefon, 12 M.J.
431, 435 (C.M.A. 1982).
4 During her testimony, Ms. CC said she would not say that she and Major (Maj) RW
were dating, but she agreed they were “more than friends” and had a sexual relation-
ship. Maj RW described their relationship as “friends with benefits off and on” begin-
ning in late 2017.
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United States v. Covitz, No. ACM 40193
with Ms. CC, and the two were discussing marriage by November 2018. Mean-
while, Appellant and Ms. CC made a room in the house available for short-
term rentals via an online booking platform.
Appellant deployed from April 2019 to October 2019. In December 2019,
Appellant decided to rent and move into a room elsewhere in the city while Ms.
CC and her children remained in Appellant’s house. Appellant and Ms. CC
continued to see each other periodically, and on 10 February 2020 they went
out to lunch with plans to return to Appellant’s house afterwards. As Ms. CC
drove Appellant back to the house, they began arguing about one of Appellant’s
two cats which had gone missing from the house a few days earlier. In essence,
Appellant accused Ms. CC of being inattentive to the cats, failing to notice the
one cat had disappeared, and then not putting in much effort to find the cat.
Ms. CC disputed these allegations as her dashboard camera recorded the ar-
gument.
According to Ms. CC’s testimony at trial, once she and Appellant arrived at
the house and walked into the kitchen, the argument turned physical with Ap-
pellant pushing her into the refrigerator and then into a “barrier” Ms. CC had
constructed to keep Appellant’s cats out of the kitchen. This caused the barrier
to fall into the house’s “atrium” near the stairs leading up to the master bed-
room and the rental bedroom.5 Ms. CC tried unsuccessfully to pick up the bar-
rier while she and Appellant continued to argue. At some point, Ms. CC man-
aged to activate a recording function on her phone which made an audio re-
cording of the events. The altercation moved to the adjoining living room,
where Ms. CC fell on the ground after Appellant pushed her. Ms. CC said Ap-
pellant put one knee on her stomach and then used one of his hands to strangle
her briefly, and the altercation ended shortly thereafter.
About a week later, Ms. CC had dinner at Maj RW’s house along with a
mutual friend. Ms. CC showed the two men pictures of her bruises and played
a part of the recording of her argument with Appellant. Although Maj RW
worked with Appellant, he did not report the incident because he “didn’t have
both sides of the story” and he “didn’t feel like [he] wanted to get involved with
her business at that point.”
After another week passed, Appellant sought a protective order against Ms.
CC from the civilian authorities, leading Ms. CC to seek a similar order against
Appellant. A joint hearing on the orders was held in early March 2020 before
a Clark County Family Court judge during which both Appellant and Ms. CC
testified; Ms. CC also played portions of her recordings for the judge. A repre-
5 Based upon trial testimony, this “atrium” is the house’s interior entryway.
3
United States v. Covitz, No. ACM 40193
sentative from the base Family Advocacy Office who was observing the pro-
ceedings subsequently notified military law enforcement authorities about the
assault allegations, and a military investigation was initiated. Ultimately, Ap-
pellant was charged with and convicted of four specifications of domestic vio-
lence related to the 10 February 2020 altercation (strangling Ms. CC, pushing
her in the chest, grabbing her wrists, and pinning her to the floor). Appellant
was acquitted of a fifth specification of domestic violence which alleged he had
grabbed Ms. CC’s shirt collar in December of the prior year.
During Appellant’s trial, one court member asked if the panel could be pro-
vided a “top down drawing view of the kitchen, living room, garage, and where
[Appellant and Ms. CC] were initially/originally standing during the conversa-
tion before contact was made.” Later, another member asked about the orien-
tation of the barrier, where Appellant and Ms. CC were standing when it fell,
where it landed, and where the two were standing afterwards.
B. Court-Martial Members
Fourteen members were detailed to Appellant’s court-martial. For voir
dire, the military judge first asked the members as a group a number of general
questions. Afterwards, counsel for both parties were permitted to ask the en-
tire panel questions. Once the group voir dire concluded, the military judge
and the parties determined that each of the members should be called back for
individual voir dire. When the members were individually called back in for
follow-up questioning, the military judge proceeded to question the members,
allowing counsel for the parties to ask follow-up questions.
At the conclusion of this process, trial counsel and the Defense agreed to
excuse two members.6 The Defense then challenged one member whose sister
had been the victim of domestic violence, and the military judge granted this
request on an implied-bias theory over government objection. The Defense next
challenged a member whose mother and sister had been victims of domestic
violence, and the military judge granted this challenge as well, bringing the
number of members down to ten. As discussed in greater detail below, trial
defense counsel then challenged four more members, but the military judge
6 The military judge concluded both of these members were “subject to challenge for
cause for actual bias.” The first member knew both Appellant and Maj RW. Prior to
the court-martial, Maj RW had told this member about seeing bruises on Ms. CC, and
the member had counseled Maj RW not to confront Appellant about the matter. The
second member had both a cousin who had been killed in a domestic violence incident
and several other family members accused of committing domestic violence. This mem-
ber told the military judge that he could not say with certainty that these facts would
not bias him, as the experiences had led him to be “more sympathetic towards believing
victims or potential victims.”
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United States v. Covitz, No. ACM 40193
denied all four challenges. Both the Government and the Defense used their
peremptory challenges, reducing the panel size to eight—the number required
for a general court-martial—with the Defense using its peremptory challenge
against one of the four members it had unsuccessfully challenged for cause.
The military judge’s denials of the Defense’s challenges to the four members
are at issue here; those four members are Lieutenant Colonel (Lt Col) KB, Maj
MP, Maj JR, and Captain (Capt) GL.7
1. Maj MP
a. Individual Voir Dire
After being called back for individual voir dire, Maj MP told the military
judge he had been in the same unit as Appellant from 2016 to 2018 and that
they had a relationship which was “just professional.” He explained they would
interact “a dozen times a month” and have conversations which would last be-
tween 30 minutes and two hours, but they did not spend any time together
outside of their duty location. Although Maj MP did not keep in touch with
Appellant after 2018, Maj MP said he had followed Appellant’s career since
then. When asked what he thought about Appellant, Maj MP answered, “I had
a high opinion of [Appellant]. He was exceptional.”
Maj MP also said he knew Maj RW, an anticipated witness in the case. Maj
RW had been “one of [Maj MP’s] troops” at one point, and the two had inter-
acted with each other “over the last five years.” Maj MP described their inter-
actions as, “Not consistent enough to say I’ve been to his house or see him on
weekends, but run-ins. I just had a conversation with him three days ago for
about 45 minutes about how his life is going, how my life is going.” Maj MP
described his relationship with Maj RW as “professional,” and that they inter-
acted “probably about three to four times a month currently,” although there
had been a period of two years where the two did not talk at all. When the
military judge asked Maj MP what the general nature of his interactions with
Maj RW was, Maj MP answered, “Let’s call it personal advice. We both shared
similar interests in toys. Obviously, ‘toys’ as in like cars, you know, vehicles,
stock market, how he’s doing in the city.” The military judge asked Maj MP
what he meant by “in the city,” and Maj MP said, “As in like his additional
endeavors like, you know, basically he’s one of those individuals that is smarter
than I am, so I’ve got to bend the ear sometimes to learn a little bit about how
he’s making his ends meet.” When asked whether he had a particularly high
or low opinion of Maj RW, Maj MP replied, “High opinion. He’s incredible.”
7 We conclude the military judge did not abuse his discretion in denying the Defense’s
challenge of Captain (Capt) GL whose wife had been abused as a child and was pursu-
ing a social work degree. We do not further discuss this challenge.
5
United States v. Covitz, No. ACM 40193
Maj MP knew another potential witness in the case, Capt SS, whom Maj
MP said he worked with daily for a period lasting between six months to a year.
The military judge asked Maj MP his opinion of Capt SS and he answered,
“Another well-deserved troop at the time, so high opinion of [her].”8
Responding to questions from the military judge, Maj MP indicated he
would use the same standards in weighing and evaluating the testimony of
each witness in the case. The military judge asked Maj MP how he could be
confident he would not give “more weight or credibility” to the testimony of
witnesses that he knew versus witnesses he did not know. Maj MP answered,
“Well, in this event, in this position, I am not looking at them as individuals. I
am just listening to the words that they are providing.”
b. Challenge
The Defense challenged Maj MP on implied bias grounds based on his
knowledge of both Appellant and Maj RW, whom trial defense characterized
as “a central witness” who would be presented by the Government as “an outcry
witness” and to testify that “he saw at least some of [Ms. CC’s] alleged bruises.”
Trial defense counsel explained that Maj RW was in a relationship with Ms.
CC “throughout a significant period that’s at issue in this case, and may very
well still be in a relationship with [Maj RW].” Trial defense counsel pointed to
Maj MP’s “very high opinion” of Maj RW and told the military judge that Maj
RW was “very financially well off” based upon some profitable investments he
had made. The relevance of Maj RW’s financial status, according to trial de-
fense counsel, was that Maj MP essentially said he “goes to [Maj RW] for fi-
nancial advice. . . . It’s where [Maj MP] is literally going to somebody who has
had a significant amount of success financially and both [sic] in his career and
asked him for advice.” Trial defense counsel argued that Maj MP was relying
on Maj RW’s advice on “potentially major life and financial decisions.” Trial
defense counsel pointed to the length of the conversations and the fact that Maj
MP and Maj RW had a long conversation just days before the court-martial, as
well as the fact that Maj RW was an adverse witness to Appellant—in no small
part because Maj RW was in a relationship with Ms. CC, Appellant’s former
girlfriend and victim in the case. The Defense also noted Maj RW’s affiliation
with the potential defense witness, Capt SS.
The Government opposed the challenge. In doing so, trial counsel conceded
Maj RW was “a key witness” and “an important part” of the Government’s case;
he also acknowledged that the Defense’s characterization of Maj RW’s expected
testimony was “rather accurate.” Although trial counsel noted that Capt SS
8 Capt SS had been listed as a potential defense witness; however, she was never called
to testify.
6
United States v. Covitz, No. ACM 40193
was a Defense witness, trial counsel did not respond at all to the Defense’s
allegation of Maj MP’s bias with respect to Maj RW other than to say that be-
cause Maj MP knows Appellant, a Government witness (Maj RW), and a De-
fense witness (Capt SS), that outside observers “would see that as potentially
balancing out in a way.”
The military judge announced he had considered the challenge under ac-
tual and implied bias grounds and denied the challenge on both. As to actual
bias, the military judge said he “had the opportunity to observe [Maj MP’s]
demeanor and ha[d] the opportunity to assess his credibility in response to
questions posed,” and that Maj MP
clearly and unequivocally stated multiple times that he would
decide this case based solely on the evidence presented, and the
law as instructed by the [c]ourt. Would not give any particular
witness’s testimony more weight than any other witness’s testi-
mony because of that witness’s position, status[,] or his personal
relationship with the witness.
With regards to implied bias, the military judge noted that although Maj
MP had interacted with Maj RW for approximately five years, “that was purely
a professional relationship.” The military judge said the two interacted “only
three or four times a month” and that “there was a full two years where [Maj
MP] didn’t even talk to [Maj RW] because they were in different squadrons.”
Further, the military judge said that although Maj MP had a high opinion of
Maj RW, Maj MP had
indicated he had high opinions of each of the witnesses he was
aware of, which includes [Capt SS], a potential defense witness,
and [Appellant]. The fact that he has knowledge of a number of
individuals that—or has had interactions with a number of the
individuals that may be involved in this court-martial is not per
se disqualifying.
The military judge said he had considered the liberal grant mandate and
that he did “not find it to be a particularly close call based upon [his] limited
interaction.”
2. Lt Col KB
a. Individual Voir Dire
Prior to calling Lt Col KB back for individual voir dire, when the military
judge was discussing with the parties the topics upon which he intended to
question Lt Col KB, the following colloquy took place:
ADC [Area Defense Counsel]: . . . Defense has knowledge that
[Lt Col KB] actually for a brief time was renting a room at the
7
United States v. Covitz, No. ACM 40193
actual house where this occurred. That’s—at least, that’s some-
thing that’s relevant to ask him about. None of the voir dire
questions elicited that, but in full candor, the [c]ourt—
MJ [military judge]: Who owns the home where this incident oc-
curred?
ADC: Our client does, sir.
MJ: So your client had a landlord/tenant relationship with [Lt
Col KB]?
ADC: It was an Airbnb style, but, yes, Your Honor.
MJ: What are the timeframes that you are aware he shared that
room?
ADC: May I have a moment?
MJ: Why don’t we do this, because there is no way the court
would know this on its own, what I intend to do is open it up to
counsel if there are additional areas of inquiry. That is an area
of inquiry I’ll allow you to ask about, and I’ll allow you to do [sic]
during the individual voir dire. The [c]ourt is not inclined to do
it.
When called for individual voir dire and, in response to the military judge’s
questions, Lt Col KB explained that his sister had been a victim of domestic
violence at the hands of her husband around five years before Appellant’s
court-martial. Lt Col KB said he was not particularly close to his sister, that
he only learned of the abuse from his father during his sister’s divorce proceed-
ings, that he only spoke to his sister about the abuse on one occasion, and that
he never thinks about it. The military judge asked Lt Col KB whether his sister
told him “about exactly what happened, the impact, or was it brief?” Lt Col KB
answered, “All of the above. It was really just, ‘This is what happened. This is
why we’re getting a divorce,’ and that was pretty much the conversation.” The
military judge then asked about the impact of learning this news, to which
Lt Col KB responded, “I felt bad for her. I was glad that she decided to get out
of the relationship.” When asked whether he thought about his sister’s abuse
when he read the charges, Lt Col KB told the military judge, “No, not really.”
The military judge asked Lt Col KB whether he thought his sister’s abuse
would impact his ability to be a fair and impartial panel member, and Lt Col
KB answered, “I don’t believe so.” Lt Col KB went on to explain that “every
situation deserves a look in the right context” and that his sister’s situation
“could be totally different than this situation.” He also said that if he were to
return a finding of not guilty, he would not feel as if he was letting his sister
down or disappointing her.
8
United States v. Covitz, No. ACM 40193
After the military judge finished his questions, the trial counsel responsible
for the voir dire of Lt Col KB indicated he intended to ask questions about
“information the [D]efense brought up earlier.” Trial counsel asked Lt Col KB
if he knew Appellant; he answered, “I do not.” Trial counsel then said, “Some
information came up that you may have or may have not . . . rented a room
here in Vegas from—and it’s potentially [Appellant’s].” Lt Col KB responded,
“So maybe.” He then explained he had rented a room during March 2019, as
part of his reassignment to the Las Vegas area, leading trial counsel to ask,
“did you recognize [Appellant] as you walked into the room today?” Lt Col KB
answered, “I did not, but now that you bring it up. . . . Yes. That’s yes.” Lt Col
KB went on to explain that he and his wife were in Las Vegas looking for a
house for about a week, and he spoke with Appellant “two or three times”—
conversations which were “[n]ot more than 15-ish minutes.” In these conversa-
tions, they spoke about Lt Col KB’s assignment, but Lt Col KB said he did not
form a general impression about Appellant.9 Lt Col KB remembered children
being in the house along with Appellant’s “wife or girlfriend,” whom Lt Col KB
did not meet or interact with. When asked if there were “[a]ny memorable in-
teractions,” Lt Col KB replied, “The whole thing was pretty low key. We just
rented a place to stay while we were house hunting.” Trial defense counsel only
asked Lt Col KB two questions: to verify the date of the room rental and what
injuries his sister suffered from her abuse; Lt Col KB said he did not know the
extent of his sister’s injuries.
b. Challenge
Trial defense counsel lodged an implied bias challenge against Lt Col KB
based upon his sister’s abuse as well as his “personal knowledge of the alleged
crime scene” due to the week he stayed in Appellant’s house. Trial defense
counsel said, “[T]here’s no doubt the photographs of the house will be intro-
duced into evidence” and that Lt Col KB “inevitably had been in multiple loca-
tions at the alleged crime scene,” based upon where the offenses took place.
The Defense also highlighted the fact Lt Col KB’s sister had been a victim of
“fairly recent” domestic violence. Trial counsel opposed the challenge, arguing
Lt Col KB only “vaguely remembered interactions” with Appellant and was
merely aware that children and “an ex-girlfriend or a girlfriend” also lived in
the house.
The military judge asked the parties for additional information regarding
the room rental saying, “the [c]ourt’s primary area of inquiry, trouble with this
particular individual, is that that [sic] rental that occurred.” Trial defense
9 The Defense later proffered that Appellant was away at pre-deployment training dur-
ing the time Lieutenant Colonel (Lt Col) KB and his wife were in the house.
9
United States v. Covitz, No. ACM 40193
counsel responded that the condition of the house was “not going to be the cen-
tral focus of the case, but may come into issue here,”10 and that the Defense
anticipated prosecution exhibits which included photographs of the interior of
the house along with an audio recording made in the house. Regarding the
recording, trial defense counsel explained that the sound of the barrier hitting
the ground could be loudly heard, and that how the barrier came to fall would
be a matter of dispute in the trial.11 Trial defense counsel said that Lt Col KB
“undoubtedly will have knowledge as to that barrier” and “might have personal
knowledge as to the physical dimensions of that barrier and particular loca-
tion.” Trial counsel conceded the Government would be presenting a photo-
graph of the barrier to the members, but argued there were no anticipated is-
sues with respect to the layout of the house or things in the house.
The military judge denied the challenge, saying he had considered it on
both actual and implied bias grounds. In determining Lt Col KB was not actu-
ally biased, the military judge said he found Lt Col KB “to be forthright, hon-
est[,] and credible.” In terms of implied bias, the military judge noted Lt Col
KB was not particularly close to his sister, had only one conversation with her
about the abuse, had a “lack of really much knowledge about the abuse his
sister suffered,” and did not think about the incident at all. The military judge
also pointed to the “lack of impact” the abuse had on Lt Col KB.
Regarding Lt Col KB having rented a room in Appellant’s house, the mili-
tary judge said Lt Col KB did not initially recognize Appellant, had no interac-
tions with the children or Ms. CC, did not form an opinion about Appellant,
and “[t]here were no memorable interactions.” The military judge continued,
Even having considered the additional inputs of counsel on some
of the issues that will come up here, number one, the [c]ourt
would note that this member was not asked about his knowledge
of cats, not asked about his knowledge of a barrier in the home,
was not asked about his knowledge or of [sic] appearance of the
children in the home. This [c]ourt has no information about
whether this member even recalls any of that. The layout of the
home does not appear to be, as conceded by defense counsel, par-
ticularly essential to this case or important to this case.
10 Trial defense counsel suggested the Government might seek to elicit evidence about
the appearance of Ms. CC’s children, Appellant’s cats, and the house in general, ap-
parently in furtherance of a theory that Ms. CC was a poor caretaker.
11 Prior to conducting voir dire, the military judge heard and ruled on a motion to sup-
press statements Appellant made during the hearing before the Family Court judge.
In support of that motion, the Defense attached a recording of the hearing which in-
cluded Ms. CC playing her recordings of the altercation between herself and Appellant.
10
United States v. Covitz, No. ACM 40193
The military judge then said he had considered United States v. Rockwood
“for the proposition that some amount of knowledge of the facts of a case does
not per se disqualify a court-martial member.” See 52 M.J. 98, 105–06 (C.A.A.F.
1999). He said he considered the liberal grant mandate, “but did not find this
to be a particularly close call,” and denied the Defense’s challenge.
3. Maj JR
Maj JR explained that approximately eight months before Appellant’s
court-martial, she started volunteering at a local shelter for women who were
victims of domestic violence. Maj JR’s role was to lead hour-long yoga classes
once or twice a month. The shelter prohibited volunteers such as Maj JR from
talking to the shelter residents about the abuse they suffered and from inter-
acting with the women at all outside the shelter. Maj JR said she went through
a four-hour volunteer orientation at the shelter before she started leading the
yoga classes, but there was no discussion of domestic violence itself during the
orientation.
The Defense challenged Maj JR under an implied bias theory based upon
her volunteering at the shelter. Trial defense counsel said the Defense might
call an expert witness to testify about “biases within the system when they
know the victim of domestic violence,” which might conflict with Maj JR’s ex-
perience at the shelter. The Government opposed the challenge, and the mili-
tary judge denied it on both actual and implied bias grounds. The military
judge concluded that providing services to victims or even treating victims of
offenses at issue in a trial is not a per se disqualification from service as a
member. The military judge said he considered the liberal grant mandate, but
did “not find this to be a particularly close call.”
C. Peremptory Challenges
Once the military judge resolved the Defense’s challenges for cause, the
Government exercised its peremptory challenge against a member who was
responsible for Appellant’s professional development, had been working with
Appellant on his next assignment the week prior to the court-martial, had
heard rumors about the case, had a prior professional and personal relation-
ship with Capt SS, and was hoping for “a positive outcome” from the court-
martial for Appellant’s sake. The Defense exercised its challenge against Maj
JR.12 This left eight members on the panel, the required minimum number.
12 Appellant argues the military judge’s denials of the Defense’s challenges for cause
impaired his peremptory challenge by forcing him to choose among adverse members
in exercising that challenge. However, a successful peremptory challenge waives any
error with respect to an earlier challenge for cause against that member. See R.C.M.
11
United States v. Covitz, No. ACM 40193
II. DISCUSSION
A. Law
An accused has “the right to an impartial and unbiased panel.” United
States v. Nash, 71 M.J. 83, 88 (C.A.A.F. 2012) (citation omitted). A person de-
tailed to a court-martial shall be excused whenever it appears he or she
“[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.” R.C.M.
912(f)(1)(N). Such is the case when a person “is closely related to the accused,
a counsel, or a witness in the case . . . [or] has a decidedly friendly or hostile
attitude toward a party.” R.C.M. 912(f)(1)(N), Discussion. Potential court-mar-
tial members are subject to challenges for cause under actual bias and implied
bias theories. United States v. Hennis, 79 M.J. 370, 384 (C.A.A.F. 2020). Under
the former, the question is whether the member personally holds a bias “which
will not yield to the military judge’s instructions and the evidence presented at
trial.” Nash, 71 M.J. at 88 (citation omitted). Claims that a military judge erred
with respect to challenges alleging actual bias are reviewed for an abuse of
discretion. Hennis, 79 M.J. at 384.
Our superior court has framed the analysis of implied bias as: considering
the totality of the circumstances and assuming the public is familiar with the
military justice system, “whether the risk that the public will perceive that the
accused received something less than a court of fair, impartial members is too
high.” United States v. Woods, 74 M.J. 238, 243–44 (C.A.A.F. 2015) (internal
quotation marks and citation omitted). “Implied bias exists when, ‘regardless
of an individual member’s disclaimer of bias, most people in the same position
would be prejudiced [that is, biased].’” United States v. Briggs, 64 M.J. 285, 286
(C.A.A.F. 2007) (alteration in original) (quoting United States v. Napolitano,
53 M.J. 162, 167 (C.A.A.F. 2000)). Our review of implied bias challenges is
more deferential than de novo review, but less deferential than abuse of dis-
cretion. Hennis, 79 M.J. at 385. The test is objective, asking “whether, in the
eyes of the public, the challenged member’s circumstances do injury to the ‘per-
ception of appearance of fairness in the military justice system.’” United States
v. Terry, 64 M.J. 295, 302 (C.A.A.F. 2007) (quoting United States v. Moreno, 63
912(f)(4), Manual for Courts-Martial, United States (2008 ed.); see also United States
v. Vanvalkenburgh, No. ACM 39571, 2020 CCA LEXIS 157, at *7 (A.F. Ct. Crim. App.
13 May 2020) (unpub. op.), aff’d, 80 M.J. 395 (C.A.A.F. 6 Nov. 2020) (mem.) (concluding
appellate review is precluded regarding a member who was peremptorily challenged).
Because we conclude the military judge abused his discretion with respect to two other
members, we do not further analyze Appellant’s argument on this point.
12
United States v. Covitz, No. ACM 40193
M.J. 129, 134 (C.A.A.F. 2006)). Implied bias, however, “should be invoked spar-
ingly.” Moreno, 63 M.J. at 134 (citation omitted).13 We consider the totality of
the circumstances in determining “whether there is implied bias, namely, a
‘perception or appearance of fairness of the military justice system.’” United
States v. Peters, 74 M.J. 31, 34 (C.A.A.F. 2015) (quoting United States v. Dale,
42 M.J. 384, 386 (C.A.A.F. 1995)).
When an accused challenges members for cause, the military judge is re-
quired to liberally grant such challenges. United States v. James, 61 M.J. 132,
139 (C.A.A.F. 2005). Reasons for this include the fact that peremptory chal-
lenges in the military justice system are far more constrained than in the ci-
vilian criminal justice arena, as well as that convening authorities have broad
discretion to detail members to courts-martial. Id. (citations omitted). “Chal-
lenges based on implied bias and the liberal grant mandate address historic
concerns about the real and perceived potential for command influence on
members’ deliberations.” United States v. Clay, 64 M.J. 274, 276–77 (C.A.A.F.
2007). “In other words, if after weighing the arguments for the implied bias
challenge the military judge finds it a close question, the challenge should be
granted.” Peters, 74 M.J. at 34. The liberal grant mandate “also serves as a
preventative measure because ‘it is at the preliminary stage of the proceedings
that questions involving member selection are relatively easy to rapidly ad-
dress and remedy.’” Id. (quoting Clay, 64 M.J. at 277). Military judges who
squarely address the liberal grant mandate on the record are given greater
deference on appeal than those who do not. Clay, 64 M.J. at 277.
The burden in establishing the grounds for the challenge of a member lays
with the party making the challenge. R.C.M. 912(f)(3). When a basis for chal-
lenge is first raised on appeal, we review such claims for plain error. United
States v. Ai, 49 M.J. 1, 5 (C.A.A.F. 1998) (citation omitted).
Each party is entitled to one peremptory challenge. R.C.M. 912(g)(1). If a
member who was unsuccessfully challenged for cause is subsequently excused
by virtue of a peremptory challenge, such excusal “shall preclude further con-
sideration of the challenge of that excused member upon later review.” R.C.M.
912(f)(4).
13 The United States Court of Appeals for the Armed Forces (CAAF) has explained this
concept “reflects that where actual bias is found, a finding of implied bias would not be
unusual, but where there is no finding of actual bias, implied bias must be inde-
pendently established.” United States v. Clay, 64 M.J. 274, 277 (C.A.A.F. 2007).
13
United States v. Covitz, No. ACM 40193
B. Analysis
1. Maj MP
Appellant argues the military judge abused his discretion when he denied
the Defense’s challenge of Maj MP. Appellant begins by arguing the military
judge’s finding of fact that Maj MP’s relationship with Maj RW was “purely
professional” was clearly erroneous in light of Maj MP’s description of the re-
lationship, and we should therefore grant the military judge’s analysis no def-
erence. Appellant further points to Maj MP’s high opinion of Maj RW—a key
Government witness—and Maj MP’s ambiguous response to the military
judge’s question about how he would evaluate the testimony of the witnesses
he personally knew. Because of Maj MP’s positive opinion of Maj RW, Appel-
lant contends he was “put in the untenable position of arguing that Maj RW’s
actions were inappropriate, and his judgment was flawed, to a fact finder who
had a preconceived and openly expressed opinion that Maj RW was an ‘incred-
ible’ person and who directly and personally relied on Maj RW’s judgment.”
The Government maintains Maj MP’s relationship with Maj RW was
simply professional based on Maj MP’s statement that he would “classify [the
relationship] as professional” in response to the military judge’s question:
“Would you characterize your relationship with [Maj RW] as strictly profes-
sional, personal or both?” The Government further argues that Maj MP’s rela-
tionship with Maj RW was not per se disqualifying and that we should defer to
the military judge’s decision to deny the Defense’s challenge.
The Government is correct that a panel member’s professional relationship
with a witness does not automatically preclude that member’s service on a
court-martial. See Ai, 49 M.J. at 5 (noting “a routine official or professional
relationship between a member and a witness in a court-martial does not per
se establish disqualifying implied bias” (citation omitted)). However, the mili-
tary judge’s conclusion that Maj MP and Maj RW had “purely a professional
relationship” cannot be squared with Maj MP’s explanation that the general
nature of their interactions was “personal advice,” covering such matters as
“‘toys’ as in like cars . . . vehicles, stock market, how he’s doing in the city.”
When asked to elaborate, Maj MP obliquely referred to trying “to learn a little
bit about how [Maj RW was] making his ends meet.” Although Maj RW had
been “one of [Maj MP’s] troops” in the past, the two apparently were not work-
ing together by the time of Appellant’s court-martial, when they were interact-
ing “probably about three to four times a month.”
In general, military cases finding a non-disqualifying professional relation-
ship between a member and a witness involve the member and witness in ques-
tion knowing each other by virtue of their respective duties or having worked
together at some point in the past. See, e.g., United States v. Warden, 51 M.J.
14United States v. Covitz, No. ACM 40193
78, 82 (C.A.A.F. 1999) (an enlisted witness had been the personal secretary to
a senior officer member during a prior assignment); Ai, 49 M.J. at 2 (three
years prior to the trial, an enlisted witness had worked for an officer member
for approximately a year; their interactions were “strictly on duty, official-type
dealings;” and the two had not seen each other since); United States v. Napo-
leon, 46 M.J. 279, 282 (C.A.A.F. 1997) (a senior officer member knew a special
agent witness professionally but the two did not socialize with each other).14 In
United States v. Velez, the United States Court of Appeals for the Armed Forces
(CAAF) considered the case of a junior officer member who “work[ed] for” a
Government rebuttal witness at the time of the court-martial, whom the mem-
ber said he trusted. 48 M.J. 220, 225 (C.A.A.F. 1998). In that case, trial defense
counsel did not challenge the member and the CAAF found the military judge
did not err in not sua sponte dismissing the member, referring to case law per-
taining to official acquaintances. Id. The outcome was different, however, when
an officer member had a “significant relationship of trust” with the victim-wit-
ness based upon the fact the victim-witness’s official duties included packing
the member’s parachute. United States v. Leonard, 63 M.J. 398, 403 (C.A.A.F.
2006). There, the CAAF concluded that although the relationship was entirely
professional and duty-related, the member’s inclusion on the panel “under-
mine[d] the appearance of fairness in the military justice system and, there-
fore, the military judge erred in failing to follow the liberal grant mandate.” Id.Maj MP’s relationship with Maj RW is different in numerous respects from
those which the CAAF has found to be non-disqualifying. First, Maj MP and
Maj RW were peers, so there was no customary or military hierarchal limits
on their relationship. Second, while the two had worked together at one point
in the past, their relationship continued up to Appellant’s court-martial and
consisted of approximately weekly meetings unrelated to their official duties.
Third, their conversations were not duty related, but rather focused on shared
personal interests. Fourth, the two had more than a just passing relationship,
as evidenced by the fact Maj MP said they spent 45 minutes talking about “how
his life is going, how my life is going” three days before the trial. Fifth, Maj MP
alluded to the fact—as trial defense counsel more precisely explained to the
military judge—that he sought financial advice from Maj RW, a topic generally
associated with a degree of trust and confidence. We also note Maj MP was less
than forthcoming about the nature of his relationship with Maj RW, couching
14 The member also had some “limited and general” knowledge of the charged offense.
The CAAF found the question “a closer call,” but concluded the denial of the challenge
of the member was not error, in part due to the fact the special agent’s testimony was
limited to a description of the crime scene and a search, and that the agent’s credibility
was not contested. Napoleon, 46 M.J. at 283.
15
United States v. Covitz, No. ACM 40193
his comments in cryptic terms at times and being unnecessarily vague at oth-
ers.
Compounding matters is that Maj MP did not proffer a general or measured
opinion of Maj RW; instead, Maj MP said he had a “high opinion” of Maj RW
and found him to be “incredible.” Although the military judge correctly noted
Maj MP also had “a high opinion” of Appellant, whom he thought “was excep-
tional,” as well as Capt SS, whom he described as a “well-deserved troop,” it is
unclear how having positive opinions of Appellant and a defense-aligned wit-
ness somehow offsets or balances out an affinity for a Government witness.
The military judge cited no authority for the proposition, and the Government
has identified none in its response to this appeal. We are similarly unaware of
any legal basis for such an assertion and, moreover, find the proposition illog-
ical and unworkable. Appellant was entitled to impartial members, and the
solution to a member having strong feelings about one witness would not seem
to be ensuring the member had strong feelings about other witnesses as well.
When selecting members to serve on a court-martial, convening authorities
are directed to detail members who are, in the convening authority’s opinion,
“best qualified for the duty by reason of age, education, training, experience,
length of service, and judicial temperament.” Article 25(e)(2), UCMJ, 10 U.S.C.
§ 825(e)(2). Prior to the assembly of a court-martial, a convening authority may
change the members without showing cause. R.C.M. 505(c)(1)(A). Thus, a con-
vening authority has near unfettered authority to hand-pick the members who
will sit on a particular court-martial, while an accused is limited to challenges
for cause and a single peremptory challenge. As a result, military judges are
bound by the liberal grant mandate, which is a “a response to the unique na-
ture of the military justice system ‘because in courts-martial peremptory chal-
lenges are much more limited than in most civilian courts and because the
manner of appointment of court-martial members presents perils that are not
encountered elsewhere.’” James, 61 M.J. at 139 (quoting United States v.
Smart, 21 M.J. 15, 19 (C.M.A. 1985) (additional citation omitted)).
When a case is close, “military judges are enjoined to liberally grant chal-
lenges for cause.” Clay, 64 M.J. at 277. As our superior court has explained,
military judges are “mandated to err on the side of granting a challenge. This
is what is meant by the liberal grant mandate.” Peters, 74 M.J. at 34. We con-
clude this is such a close case, and the military judge therefore abused his dis-
cretion in denying the Defense’s challenge of Maj MP.
The military justice system asked a great deal of Maj MP—namely, to set
aside his high opinion of a key Government witness with whom he had regular
conversations about personal and unofficial matters, a Government witness
who was a paramour of the victim in the case. Even if Maj MP had the willing-
ness and ability to do so, we are unconvinced that the public would conclude
16
United States v. Covitz, No. ACM 40193
Appellant’s panel was fair and impartial. Instead, a member of the public
would likely see Maj MP as being pressured by both conscious and unconscious
biases, if not being called upon to conclusively decide where his loyalties lay as
he listened to testimony and later deliberated. It is not a far reach to conclude
that a not-guilty verdict would have sent the message that at least three people
on the panel—of which Maj MP was a member—rejected either or both the
testimony of Maj RW and Ms. CC, with whom Maj RW was intimately involved.
Thus, a member of the public could rightly question whether Maj MP was in-
fluenced by the desire to maintain his relationship with Maj RW and not return
a verdict suggesting either Maj RW or Ms. CC had told less than the truth on
the stand.
Unlike the military judge, we conclude Maj MP’s relationships with and
opinions of other potential participants in the case exacerbates, rather than
mitigates, matters. Appellant deserved a court-martial panel of members
whose minds were unclouded by concerns of friendships and alliances. While
we do not take issue with the military judge’s findings as to actual bias, we
conclude the risk is too high that the public would perceive Appellant “received
something less than a court of fair, impartial members.” Woods, 74 M.J. at
243–44. The challenge against Maj MP called for the exercise of the liberal
grant mandate; the military judge’s contrary determination was error.15
2. Lt Col KB
We reach the same conclusion with respect to Lt Col KB, although we find
the call to be somewhat closer.
Appellant asserts Lt Col KB demonstrated implied bias both because of his
sister’s abuse and the fact he rented a room in Appellant’s house. Appellant
further contends that even if the military judge did not err on those grounds
individually, the totality of the circumstances—that is, both of those grounds
taken together—warranted Lt Col KB’s excusal. Another facet of Appellant’s
allegation of error is his argument that the military judge should have sua
15 Aggravating the potential perception of unfairness in this case is that the military
judge stopped granting the Defense’s challenges once the panel was reduced to ten
members. Had he granted any further challenges, and had both parties exercised their
peremptory challenges, the court-martial would have had an insufficient number of
members to proceed. Notably, the Defense did not identify all its challenges up front;
instead, the Defense raised them one at a time, only proceeding to the next after re-
ceiving a ruling on the stated challenge. Although nothing in the record demonstrates
the military judge was influenced by concerns about possible delay of the court-martial,
an observer could readily conclude this was so, based upon the sequence of the chal-
lenges and their denials.
17
United States v. Covitz, No. ACM 40193
sponte recalled Lt Col KB for additional individual voir dire to determine what
Lt Col KB remembered about Appellant’s house.
The Government responds that Lt Col KB’s knowledge of his sister’s abuse
was minimal and did not have any meaningful impact on Lt Col KB. With re-
spect to the room rental, the Government characterizes this as Lt Col KB pos-
sessing, at most, “innocuous prior knowledge” of facts related to Appellant’s
case. The Government agrees the military judge was required to assess Lt Col
KB’s fitness to serve as a panel member based on the totality of the circum-
stances, but points to the military judge’s statement that he was denying the
challenge “on those two bases” as evidence that he did, in fact, consider the
totality of the circumstances. Finally, the Government also takes the position
that it was trial defense counsel’s obligation—not the military judge’s—to de-
velop the facts necessary to support their challenge against Lt Col KB.
We note that at the outset of Appellant’s court-martial, the military judge
instructed the members, “You must also not listen to or read any accounts of
the case or visit the scene of any incident alleged in the specifications or men-
tioned during the trial.” Such an admonition exists to deter members from sup-
plementing the evidence they hear at trial with information they obtain from
sources outside the courtroom. Here, we are not faced with a member who vis-
ited the scene of an alleged incident mid-trial, but rather one who had lived at
the scene for a week. The outcome is the same, however: the member possessed
information relevant to the case at hand which he had learned by means other
than in-court presentation. Neither the Government nor Appellant have cited
to cases featuring a similar set of circumstances; Appellant—not unreasona-
bly—argues the dearth of appellate analysis of such a situation is probably due
to the unlikelihood of similarly situated members surviving causal challenges.
Like the parties, we have not identified cases involving a fact pattern akin to
the one presented here.
In denying the challenge against Lt Col KB, the military judge cited Rock-
wood, in which the CAAF explained that all five of the members who sat in
that court-martial “were challenged on a wide range of bases, including their
various degrees of contact with prospective witnesses and other court mem-
bers, [and] their knowledge of conditions on the ground in Haiti as a result of
having been there.” 52 M.J. at 105. The CAAF observed that members are not
per se disqualified by virtue of having “innocuous prior knowledge of the facts
of a case” or “a ‘professional relationship’ with government witnesses.” Id. at
106 (first quoting United States v. Lake, 36 M.J. 317, 324 (C.M.A. 1993) and
then quoting United States v. Rome, 47 M.J. 467, 469 (C.A.A.F. 1998)). While
the CAAF in Rockwood did not explicitly analyze these issues, it stated that
the Court of Criminal Appeals had “fully and satisfactorily treated” the matter.
18
United States v. Covitz, No. ACM 40193
Id. at 105. That lower court opinion, however, provides scant detail relevant to
Appellant’s case.16
It is undisputed Lt Col KB had a greater connection to the house where the
charged offenses took place than the other members. As the military judge
noted, however, neither party elicited detail from Lt Col KB as to what he re-
called about the house, its layout, or the furnishings inside it. Appellant argues
it was incumbent upon the military judge to sua sponte recall Lt Col KB for
additional questioning once these deficiencies were raised, citing United States
v. Richardson. 61 M.J. 113, 119 (C.A.A.F. 2005). Appellant’s reliance on this
case is misplaced, as it involved a military judge denying a defense request to
re-open questioning of a particular member. Here, Appellant had the burden
of establishing the basis for his challenge, not the military judge. R.C.M.
912(f)(3); United States v. Wiesen, 57 M.J. 48, 49 (C.A.A.F. 2002) (per curiam).
The Defense never requested Lt Col KB be called back for any additional ques-
tioning. As our sister court has explained, it is up to the parties to obtain the
information from the members to support their respective positions. United
States v. Mayo, ARMY 20140901, 2017 CCA LEXIS 239, at *7–8 (A. Ct. Crim.
App. 7 Apr. 2017) (unpub. op.) (“As is often the case, a military judge during
voir dire knows little about the case, the evidence, or the parties’ theories at
trial, which makes a judge poorly positioned to determine whether any one
issue is important to the case.”).
Nonetheless, we conclude Appellant did adequately raise the specter that
Lt Col KB’s presence on the panel would lead members of the public to perceive
that Appellant received less than a fair trial. Even the most perfunctory of
review of the charge sheet in this case reveals allegations of a series of assaults
by Appellant upon Ms. CC on a particular day. These assaults all occurred in
Appellant’s house, where Lt Col KB rented a room. In an assault case, it would
be unsurprising that a focus of the evidence includes detail about the physical
environment in which the assault occurred, as the parties are likely to debate
the feasibility of the opposing party’s narrative vis-à-vis physical obstacles and
16 The Court of Criminal Appeals’ opinion notes that one member had been told there
was an ongoing investigation, but no other details about the case. United States v.
Rockwood, 48 M.J. 501, 510 n.21 (A. Ct. Crim. App. 1998), aff’d, 52 M.J. 98 (C.A.A.F.
1999). Another member had witnessed Haitian police violently engaging civilians at a
port facility. Id. at 510 n.22 (the appellant’s court-martial stemmed from allegations
he had unilaterally decided to inspect a Haitian prison after hearing about the poor
conditions there). A third member had attended group Bible study discussions with
one Government witness on approximately six occasions. Id. at 511 n.24. The court
also indicated some of the members were aware of pretrial publicity regarding the case,
but the court found the publicity had largely been generated by the appellant and por-
trayed him in a positive light. Id. at 512 n.26.
19
United States v. Covitz, No. ACM 40193
other facets of the site. In this particular case, as the Defense explained to the
military judge, Appellant was accused of carrying out a multi-staged assault
that traveled through the house, and the parties disagreed about what caused
the “barricade” to fall. Specifically, they disputed whether it fell because Ap-
pellant pushed Ms. CC into it or because Ms. CC grabbed it and pulled it down.
Having stayed in the house for a week, it would seem natural that Lt Col KB
would recall certain particulars about the layout of the house, especially as the
case progressed and his memory was refreshed. After all, he did not remember
Appellant at first, but once his memory was refreshed, he recalled renting the
room, talking with Appellant several times, and that there was a wife or girl-
friend in the house, along with two children.
Although Lt Col KB did not interact with Ms. CC when he was staying at
Appellant’s house, Lt Col KB knew there was a woman living in the house
while he was there. Likely as soon as the Government began its opening state-
ment, Lt Col KB certainly would become aware that he had stayed in the house
along with the victim and her two children. Moreover, Lt Col KB would under-
stand that he had rented the room from and stayed in the house owned by
Appellant, who was on trial for assaulting Ms. CC. We can only speculate as to
what Lt Col KB made of these realizations, but it seems entirely plausible that
he began searching his memory trying to recall if there were any clues of an
abusive relationship or whether Appellant seemed like the kind of person who
would assault his girlfriend. We believe this is the case not because Lt Col KB
intentionally sought to supplement the evidence with his own knowledge, but
simply because it is human nature to seek available information in resolving
disputed matters, especially when that information arises from personal expe-
rience or observation.
As the case progressed, the layout of the house not unexpectedly became
an issue, as one of the members even asked the court to provide a schematic of
the house. It would seem natural for a member in Lt Col KB’s position to be
trying to recall what he remembered of the house and using that to form his
own understanding of the evidence, if not to guide deliberations on the point.
In the end, Lt Col KB had been involved with a business dealing with Appel-
lant, interacted with Appellant as part of that dealing, resided in Appellant’s
home for a week, and was in the immediate proximity of the victim in the case
while doing so. If military judges routinely prohibit members from visiting
crime scenes, it is difficult to understand why the military judge in this case
would seat a member who had already spent a not-insignificant amount of time
at the scene. Notably, the military judge initially raised concerns about Lt Col
KB’s rental of the property, saying he was having “trouble with this particular
individual,” a reticence highlighting the risk that members of the public could
reasonably have the same concerns about Lt Col KB’s service on the panel.
20
United States v. Covitz, No. ACM 40193
The military judge found Lt Col KB to be both honest and credible in an-
swering the questions put to him. The military judge’s appraisal of Lt Col KB’s
forthrightness and fitness to serve on the panel “warrants great deference on
the issue of actual bias, [but] it is not dispositive on the issue of implied bias.”
United States v. Daulton, 45 M.J. 212, 218 (C.A.A.F. 1996). We conclude having
a member who has lived in Appellant’s house—the very site of the charged
offenses—alongside the victim and her children in a case in which the physical
layout of the house was expected to be an issue was “asking too much of both
him and the system.” United States v. Dale, 42 M.J. 384, 386 (C.A.A.F. 1995)
(quoting United States v. Dale, 39 M.J. 503, 508 (A.F.C.M.R. 1993) (Pearson,
J., dissenting)). Therefore, the military judge clearly abused his discretion in
denying the Defense’s challenge of Lt Col KB.17
III. CONCLUSION
The findings are SET ASIDE. The sentence is SET ASIDE. A rehearing
is authorized. Article 66(d), UCMJ, 10 U.S.C. § 866(d). The record of trial is
returned to The Judge Advocate General. Article 66(f), UCMJ, 10 U.S.C. §
866(f). Thereafter, Article 66(b), UCMJ, 10 U.S.C. § 866(b), will apply.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
17 The fact Lt Col KB’s sister had been the victim of domestic abuse leading to her
divorce—abuse which led Lt Col KB to both feel bad for his sister and to approve of the
divorce—contributes to the totality of the circumstances warranting Lt Col KB’s re-
moval.
21