United States v. Upshaw , 1998 CAAF LEXIS 787 ( 1998 )

Opinion of the Court

GIERKE, Judge:

A general court-martial composed of officer and enlisted members convicted appellant of larceny, in violation of Article 121, Uniform Code of Military Justice, 10 USC § 921. The court-martial sentenced appellant to a bad-conduct discharge, confinement for 18 months, and reduction to the grade of Airman Basic. The convening authority reduced the period of confinement to 159 days but otherwise approved the sentence. The Court of Criminal Appeals affirmed the findings and sentence in an unpublished opinion.

This Court granted review of the following issue:

WHETHER THE SELECTION PROCESS OF APPELLANT’S COURT-MARTIAL WAS IMPROPER BECAUSE ENLISTED PERSONNEL IN THE RANK OF E-6 (TECHNICAL SERGEANT) WERE EXCLUDED FROM CONSIDERATION BY THE CONVENING AUTHORITY TO SIT ON APPELLANT’S COURT-MARTIAL PANEL.

We affirm, for the reasons set out below.

The facts surrounding the selection of enlisted members for appellant’s court-martial were uncontested. The staff judge advocate (SJA), erroneously believing that appellant was a technical sergeant (E-6) instead of a staff sergeant (E-5), instructed his staff to prepare a list of nominees in the grades of master sergeant (E-7) and above. The SJA testified that he avoids nominating members in the same grade as the accused because there is a risk of making an administrative mistake with respect to a nominee’s date of rank and thereby inadvertently nominating a person junior to the accused. See Art. 25(d)(1), UCMJ, 10 USC § 825(d)(1) (court-martial members must be senior to accused). Thus, no technical sergeants were nominated. The SJA further testified that, if he had known that the accused was a staff sergeant, he would have added technical sergeants to the list of nominees. The defense “eon-cede[d] that there was no bad faith” and that the failure to nominate technical sergeants was “just simply a mistake.”

Defense counsel did not ask that the ease be returned to the convening authority to select additional members or to select a new panel from a properly constituted list of nominees. Instead, defense counsel moved to dismiss the charges for lack of jurisdiction arising from an improperly constituted court-martial. The military judge denied the motion to dismiss.

Appellant argues that his court-martial was without jurisdiction because technical sergeants were impermissibly excluded from membership. The Government argues that the convening authority did not “improperly” rely on military grade as a criterion for selection and that any mistake in excluding technical sergeants from consideration was harmless error.

RCM 912(b)(1), Manual for Courts-Martial, United States (1995 ed.), provides that, when evidence is discovered that court members may have been selected improperly, a “party may move to stay the proceedings.” RCM 912(b)(2) authorizes the military judge to stay the proceedings until the members have been properly selected. RCM 912(b)(3) provides that the issue of improper selection is waived by “[fjailure to make a timely motion under this subsection,” unless the improper selection violates RCM 501(a), 502(a)(1), or 503(a)(2). Defense counsel made no motion based on RCM 912(b)(1). However, because the Government does not argue waiver, we do not decide this case on that basis.

Article 25(d)(2) requires a convening authority to select court-martial members who, “in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.” RCM 502(a)(1) repeats the statutory qualifications set out in Article 25(d) and the eligibility requirements of Article 25(a)-(c) that a court-martial “member be on active duty with the armed forces” serving as a commissioned officer, a warrant officer unless “the accused is a commissioned officer,” or an “enlisted person if the accused is an enlisted person and has made a timely request” for enlisted members.

A military accused is not entitled to have a representative cross-section of the community detailed to his or her court-martial. United States v. Lewis, 46 MJ 338, 341 (1997). On the other hand, members may not be selected solely on the basis of military grade. United States v. Nixon, 33 MJ 433 (CMA 1991). While it is permissible to look first at the senior grades for qualified court members, the lower eligible grades may not be systematically excluded. United States v. Crawford, 15 USCMA 31, 40, 35 CMR 3, 12 (1964); United States v. Daigle, 1 MJ 139 (CMA 1975); United States v. Greene, 20 USCMA 232, 43 CMR 72 (1970).

Furthermore, a court-martial may not be “stacked” to achieve a desired result. United States v. Hilow, 32 MJ 439, 440 (CMA 1991). Improper court stacking may occur by inclusion or exclusion. See United States v. Smith, 27 MJ 242 (CMA 1988) (female members selected because case involved sex crime); United States v. McClain, 22 MJ 124, 126 (CMA 1986) (systematic exclusion of junior officers and enlisted members in pay grade E-6 and below to avoid “unusual sentences”); United States v. Daigle, supra (lieutenants and warrant officers excluded); see also United States v. Yager, 7 MJ 171, 173 (CMA 1979) (permitted exclusion of soldiers in pay grades E-l and E-2 as presumptively unqualified under Article 25(d)). Court stacking may occur if a subordinate stacks the list of nominees presented to the convening authority. United States v. Hilow, supra.

Court stacking does not deprive the court-martial of jurisdiction, but it is “a form of unlawful command influence.” Lewis, 46 MJ at 341; Hilow, 32 MJ at 441. Thus, when an issue of court stacking is raised, “we may not affirm unless we are convinced beyond a reasonable doubt that the court members were properly selected.” United States v. Lewis, supra.

An element of unlawful court stacking is improper motive. Thus, where the convening authority’s motive is benign, systematic inclusion or exclusion may not be improper. See Lewis, supra at 340-41 (disproportionate number of female members detailed but no evidence of improper motives); Smith, 27 MJ at 249 (not improper to insist that “important segment of the military community — such as blacks, Hispanics, or women” be included).

In this case, the defense conceded at trial that the exclusion of technical sergeants was “just simply a mistake.” There is no evidence to the contrary. Accordingly, we hold that the issue of unlawful court stacking was not raised.

Although there is no issue of unlawful court stacking, it is undisputed that technical sergeants were mistakenly excluded from consideration. Where administrative mistakes occur in detailing court members, such errors are nonjurisdictional and may be tested for prejudice. Art. 59(a), UCMJ, 10 USC § 859(a); see United States v. King, 28 MJ 397, 399 (CMA 1989) (nonjurisdictional error when unknown person changed panel to which case was referred); United States v. Glover, 15 MJ 419 (CMA 1983) (mistaken designation of general court-martial as special court-martial not prejudicial); United States v. Ryan, 5 MJ 97, 100 n. 3 (CMA 1978) (citing United States v. Simpson, 16 USCMA 137, 36 CMR 293 (1966) (nonjurisdictional error to delegate duty of deciding which panel will hear case)).

In this case, appellant has not asserted any specific prejudice and the record reflects none. For reasons not apparent from the record, appellant did not invoke the specific remedy provided in RCM 912(b)(2), even though he had ample opportunity to request such relief. Accordingly, we hold that appellant was not prejudiced by the administrative error that caused technical sergeants to be excluded from consideration for membership in his court-martial.

The decision of the United States Air Force Court of Criminal Appeals is affirmed.

Chief Judge COX concurs.