United States v. Miles

UNITED STATES, Appellee
v.
Christopher T. MILES, Airman First Class
U.S. Air Force, Appellant
No. 01-0653
Crim. App. No. 34094
United States Court of Appeals for the Armed Forces
Argued January 8, 2003
Decided April 10, 2003
GIERKE, J., delivered the opinion of the Court, in which EFFRON,
BAKER, and ERDMANN, JJ., joined. CRAWFORD, C.J., filed a
separate dissenting opinion.
Counsel
For Appellant: Captain Kyle R. Jacobson (argued); Lieutenant
Colonel Beverly B. Knott, Lieutenant Colonel Timothy W.
Murphy, Major Terry L. McElyea, and Major Jeffrey A. Vires
(on brief).
For Appellee: Captain Matthew J. Mulbarger (argued); Colonel
LeEllen Coacher, Lieutenant Colonel Lance B. Sigmon, and
Captain Christa S. Cothrel (on brief).
Military Judge: Dennis R. Kramer
This opinion is subject to editorial correction before final publication.
United States v. Miles, No. 01-0653/AF
Judge GIERKE delivered the opinion of the Court.
A general court-martial convicted Appellant, pursuant to his
pleas, of wrongful use of cocaine, in violation of Article 112a,
Uniform Code of Military Justice, 10 U.S.C. § 912a (2002). The
adjudged and approved sentence, imposed by a panel of officer and
enlisted members, provides for a bad-conduct discharge,
confinement for three months, total forfeitures, and reduction to
the lowest enlisted grade. The Court of Criminal Appeals
affirmed the findings and sentence in an unpublished opinion.
United States v. Miles, ACM 34094 (A.F. Ct. Crim. App. Apr. 24,
2001).
This Court granted review of the following issue:
WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN DENYING
DEFENSE COUNSEL’S CHALLENGE FOR CAUSE AGAINST [LIEUTENANT
COLONEL] FERNANDEZ.
For the reasons set out below, we reverse.
Factual Background
During the military judge’s inquiry into Appellant’s guilty
pleas, Appellant told the military judge that sometime between
September 28 and October 12, 1999, he went boating with friends,
met a young woman, and later accompanied the woman to a party.
At the party, Appellant drank two or three beers in addition to
the alcoholic beverages he had consumed during the day. Someone
at the party offered Appellant a tray containing a white powdery
substance, and Appellant snorted it. He felt no effect from the
substance, but a urinalysis after the party tested positive for
cocaine.
During general voir dire, defense counsel asked the members,
“Has anyone known someone, had a family member or friend, a co-
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worker who’s ever been a victim of a crime where alcohol or drugs
were involved?” Lieutenant Colonel (Lt Col) Michael Fernandez
responded that his nephew was born with a form of epilepsy as a
result of his mother’s cocaine use during pregnancy, and that as
a result his nephew died when he was 10 years old. Lt Col
Fernandez said that the charges in this case triggered memories
of his nephew’s illness and death, because the charges reminded
him of a newspaper article about the effects of drug abuse that
he had written for the base newspaper. Defense counsel asked,
“Sir, is there anything about that that would weigh on your
conscience in going over the facts and circumstances of this
case?” Lt Col Fernandez responded in the negative.
During individual voir dire, Lt Col Fernandez explained that
every week a different commander is tasked to write an article
for the base newspaper. Lt Col Fernandez described his article
as a “self experience.” Asked to describe the article in more
detail, he explained:
Well, basically, it talked about the impact of using
cocaine, how it affects folk’s [sic] lives, and
sometimes we think it just affects the person who used
the cocaine, when, in fact, it [sic] I was trying to
point out that it affects other folks as well. Case in
point being my nephew, where he had no involvement with
cocaine, but then his mother using it during her
pregnancy and then him being born and the effect it had
on him.
Lt Col Fernandez said that, in addition to discussing the
impact of drugs on his nephew, his article connected drug use to
the military. He explained:
I make people look inside and think about is it worth
it, using the drugs, how would they feel flying in an
aircraft where a pilot was under the influence, or
being on an airplane where an air traffic controller,
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United States v. Miles, No. 01-0653/AF
who’s controlling the aircraft, is under the influence,
or a doctor who’s performing some type of lifesaving
surgery being under the influence of alcohol or drugs.
Lt Col Fernandez stated that the newspaper is circulated
“pretty much to the entire base population,” and that the article
is “usually on the inside of the front page,” with a picture of
the author as well as his name and duty title. The article was
scheduled to be published four days after the court-martial
convened.
Trial counsel, observing that “[e]vidently it was a very
traumatic experience for you and your family,” asked Lt Col
Fernandez if he “[w]ould... be able to set aside the situation”
as well as the article itself and decide the case solely on the
facts. Lt Col Fernandez responded in the affirmative. Neither
the military judge nor counsel for either side asked Lt Col
Fernandez to produce the text of the article.
The military judge denied a challenge for cause against Lt
Col Fernandez, stating that he did not find actual or implied
bias. The defense counsel then exercised a peremptory challenge
against Lt Col Fernandez, stating that he would have used the
peremptory challenge elsewhere if the challenge for cause had
been granted.
The Court of Criminal Appeals held that the military judge
did not abuse his discretion by denying the challenge. Based on
Lt Col Fernandez’s “honest and forthright” responses during voir
dire, the court below agreed with the military judge’s
determination that there was no actual bias. With respect to
implied bias, however, the court below found it “somewhat harder
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United States v. Miles, No. 01-0653/AF
to pin down.” The court concluded its review of implied bias by
stating: “Out of an abundance of caution, another judge might
have granted the challenge for cause based on the timing between
the court-martial and the publication of the article. However,
that is not the test. We find this judge did not abuse his
discretion by denying the challenge.” Miles, ACM 34094, slip
opinion at 5.
Discussion
Before this Court, Appellant focuses on implied bias,
arguing that “Lt Col Fernandez’s personal experiences with, and
views on, the effects of cocaine use would cause an objective
observer of the military justice system to doubt the fairness of
[A]ppellant’s court-martial.” The Government argues that Lt Col
Fernandez was not necessarily disqualified because his nephew was
a victim of drug abuse, and that Lt Col Fernandez’s decision “to
make his personal situation public” does not, by itself, create
an appearance of bias.
Rule for Courts-Martial [hereinafter R.C.M.] 912(f)(1)(N)
requires that a member 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 includes actual
bias as well as implied bias. United States v. Daulton, 45 M.J.
212, 217 (C.A.A.F. 1996). Actual bias and implied bias are
separate tests, but not separate grounds for a challenge. See
United States v. Armstrong, 54 M.J. 51, 53 (C.A.A.F. 2000).
“The focus of this rule is on the perception or appearance of
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United States v. Miles, No. 01-0653/AF
fairness of the military justice system.” United States v. Dale,
42 M.J. 384, 386 (C.A.A.F. 1995). There is implied bias “when
most people in the same position would be prejudiced.” United
States v. Smart, 21 M.J. 15, 20 (C.M.A. 1985). “Implied bias is
viewed through the eyes of the public, focusing on the appearance
of fairness.” United States v. Rome, 47 M.J. 467, 469 (C.A.A.F.
1998).
Military judges are enjoined to be liberal in granting
challenges for cause. See Smart, 21 M.J. at 18-19 n. 1. Because
a challenge for cause for actual bias is essentially one of
credibility,” the military judge’s decision is given “great
deference” because of his or her opportunity to observe the
demeanor of court members and assess their credibility during
voir dire. Daulton, 45 M.J. at 217 (citations ommitted).
However, implied bias is reviewed under an objective standard.
Id. Thus, we give the military judge less deference on questions
of implied bias. United States v. Youngblood, 47 M.J. 338, 341
(C.A.A.F. 1997). “[I]ssues of implied bias are reviewed under a
standard less deferential than abuse of discretion but more
deferential than de novo.” United States v. Downing, 56 M.J.
419, 422 (C.A.A.F. 2002).
A member is not per se disqualified if he or she or a close
relative has been a victim of a similar crime. Where a
particularly traumatic similar crime was involved, however, we
have found that denial of a challenge for cause violated the
liberal-grant mandate. See Daulton, 45 M.J. at 214 (sister and
mother of court member sexually abused); Smart, 21 M.J. at 16
(member was victim of multiple armed robberies).
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United States v. Miles, No. 01-0653/AF
Applying the test for implied bias, we hold that the
military judge abused his limited discretion and violated the
liberal-grant mandate in this case. Lt Col Fernandez’s 10-year-
old nephew died as a result of his mother’s prenatal use of
cocaine. He described this tragedy in his article for the base
newspaper that was scheduled to be published shortly after
Appellant’s court-martial. The record does not reflect whether
the trial counsel’s comment about the traumatic nature of this
event was based on his observation of Lt Col Fernandez’s demeanor
or by his familiarity with the text of the article.
Nevertheless, trial counsel’s comment that the event “evidently”
was “a very traumatic experience” reflects the trial counsel’s
awareness, notwithstanding Lt Col Fernandez’s sincere disclaimer
during voir dire, that Lt Col Fernandez had been personally
affected by another person’s drug abuse. We conclude that asking
Lt Col Fernandez to set aside his memories of his nephews’ death
and to impartially sentence Appellant for illegal drug use was
“asking too much” of him and the system. See Daulton, 45 M.J. at
218; see also Dale, 42 M.J. at 386.
Furthermore, apart from Lt Col Fernandez’s personal
experience with the effects of drug abuse, the scheduled
publication of his “self-experience” four days after his
participation in a court-martial for drug abuse would have added
to the serious doubts in the minds of a reasonable observer about
the fairness of the trial, if he had not been peremptorily
challenged. See United States v. Weisen, 56 M.J. 172, 176
(C.A.A.F. 2001)(“serious doubts about the fairness of the
military justice system” raised by denial of challenge). Thus,
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United States v. Miles, No. 01-0653/AF
we conclude that the military judge violated the liberal-grant
mandate by denying the challenge for cause.
Because Appellant pleaded guilty and was found guilty by the
military judge, the error was harmless with respect to the
findings. However, we hold that the peremptory challenge of Lt
Col Fernandez did not render the error harmless with respect to
the sentence. By promulgating R.C.M. 912(f)(4), the President
granted Appellant the right to save his single peremptory
challenge for use against a member not subject to challenge for
cause. Armstrong, 54 M.J. at 55. That right was violated in
this case when Appellant was forced to use his peremptory
challenge against Lt Col Fernandez.
Decision
The decision of the United States Air Force Court of
Criminal Appeals is affirmed with respect to the findings but
reversed with respect to the sentence. The sentence is set
aside. A sentence rehearing is authorized.
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CRAWFORD, Chief Judge (dissenting):
Even if the military judge clearly abused his discretion by
denying the challenge for cause against Lt Col Fernandez on the
basis of implied bias,1 that error was rendered harmless when
Appellant used his peremptory challenge to remove Lt Col
Fernandez from the panel, leaving no one else whom Appellant had
challenged for cause. “As this Court has often stated, at its
core, implied bias addresses the perception or appearance of
fairness of the military justice system.” United States v.
Downing, 56 M.J. 419, 422 (C.A.A.F. 2002). In this case, a
panel of completely unbiased members sentenced Appellant. It
does not get any fairer than that.
1. Introduction
At the outset, I note my agreement with the following two
principles:
1. When an accused unsuccessfully challenges a member for
cause, and thereafter uses his or her peremptory challenge to
remove that member from the panel, the accused preserves the
issue for appeal by stating that but for the denied challenge
for cause, the peremptory challenge would have been used against
1
In my view, the military judge did not clearly abuse his discretion by
denying the challenge for cause. See United States v. Wiesen, 56 M.J. 172,
177 (C.A.A.F. 2001)(Crawford, C.J., dissenting); United States v. Rome, 47
M.J. 467, 470 (C.A.A.F. 1998)(Crawford, J., dissenting); United States v.
Minyard, 46 M.J. 229, 232 (C.A.A.F. 1997)(Crawford, J., dissenting); United
States v. Daulton, 45 M.J. 212, 221 (C.A.A.F. 1996)(Crawford, J.,
dissenting).
United States v. Miles, No. 01-0653/AF
a different member of the panel. United States v. Eby, 44 M.J.
425, 427 (C.A.A.F. 1996); Rule for Courts-Martial 912(f)(4)
[hereinafter R.C.M.].
2. There is a hierarchical scheme of rights and duties in
the military justice system, and when an R.C.M. confers a
greater right than the Constitution or a statute, an accused is
generally entitled to the benefit of that greater right. United
States v. Davis, 47 M.J. 484, 485-86 (C.A.A.F. 1998); United
States v. Romano, 46 M.J. 269, 274 (C.A.A.F. 1997).
Having said that, I do not believe that anything in R.C.M.
912(f)(4) precludes a constitutional and statutory harmless
error analysis when a military judge erroneously denies an
accused’s challenge for cause, and thereafter, the accused uses
his or her peremptory challenge to remove that member from the
panel, even if the accused preserves the issue for appeal in
accordance with R.C.M. 912(f)(4). In other words, R.C.M.
912(f)(4) does not create a per se rule of reversal, and to the
extent the majority opinion in United States v. Armstrong, 54
M.J. 51 (C.A.A.F. 2000), is to the contrary, I disagree with its
rationale.
Stare decisis requires us to exercise judicial restraint by
following precedent. But that doctrine does not apply when an
opinion like Armstrong is poorly reasoned, or when “developments
in the law” have not been fully explored. United States v.
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United States v. Miles, No. 01-0653/AF
Tualla, 52 M.J. 228, 232-33 (C.A.A.F. 2000)(Crawford, C.J.,
concurring). In my view, Armstrong fails to recognize the
impact of Supreme Court precedent on this area of the law.
Therefore, I cannot follow Armstrong and must dissent.
2. Supreme Court Precedent
In Ross v. Oklahoma, 487 U.S. 81 (1988), the Supreme Court
considered the Sixth Amendment implications of a state trial
judge’s erroneous failure to remove a juror for cause, and the
petitioner’s subsequent use of a peremptory challenge to strike
that juror. The petitioner used all of his peremptory
challenges, but did not challenge for cause any of the jurors
who actually decided the case. On those facts, the Supreme
Court found no Sixth Amendment violation and reasoned as
follows:
Any claim that the jury was not impartial
. . . must focus . . . on the jurors who ultimately
sat. None of those 12 jurors, however, was challenged
for cause by petitioner, and he has never suggested
that any of the 12 was not impartial. . . .
. . .
Petitioner was undoubtedly required to exercise
a peremptory challenge to cure the trial court’s
error. But we reject the notion that the loss of a
peremptory challenge constitutes a violation of the
constitutional right to an impartial jury. . . . So
long as the jury that sits is impartial, the fact that
the defendant had to use a peremptory challenge to
achieve that result does not mean the Sixth Amendment
[right to an impartial jury] was violated.
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United States v. Miles, No. 01-0653/AF
Id. at 86, 88. In other words, any error was harmless because
no one who was partial actually served on the jury.
In United States v. Martinez-Salazar, 528 U.S. 304 (2000),
the Court again addressed “the erroneous refusal of a trial
judge to dismiss a potential juror for cause, followed by the
defendant’s exercise of a peremptory challenge to remove that
juror,” this time in the federal system. Id. at 307. As in
Ross, the petitioner used all of his peremptory challenges, and
no juror who actually sat was biased. However, the question in
Martinez-Salazar was not whether the Sixth Amendment was
violated, but whether the Fifth Amendment Due Process Clause was
violated, i.e. - whether Martinez-Salazar was denied any right
granted him by Federal Rule of Criminal Procedure 24(b).2
Consistent with Ross, the Martinez-Salazar Court found no
Fifth Amendment violation and again performed a harmless error
analysis, holding that “if the defendant elects to cure such an
error by exercising a peremptory challenge, and is subsequently
convicted by a jury on which no biased juror sat, he has not
been deprived of any rule-based or constitutional right.” Id.
at 307. In support of this holding, the Court stated:
[U]nlike the right to an impartial jury guaranteed by
the Sixth Amendment, peremptory challenges are not of
federal constitutional dimension. . . .
. . .
2
Federal Rule of Criminal Procedure 24(b) provides a civilian criminal
defendant with 10 peremptory challenges.
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United States v. Miles, No. 01-0653/AF
After objecting to the District Court’s denial of
his for-cause challenge, Martinez-Salazar had the
option of letting [the juror] sit on the petit jury
and, upon conviction, pursuing a Sixth Amendment
challenge on appeal. Instead, Martinez-Salazar
elected to use a [peremptory] challenge to remove [the
juror]. . . . This was Martinez-Salazar’s choice. The
District Court did not demand – and Rule 24(b) did not
require – that Martinez-Salazar use a peremptory
challenge curatively.
. . .
Martinez-Salazar received precisely what federal law
provided[.]
Id. at 311, 315, 317 (footnote omitted). The Court summed it up
concisely: “A hard choice is not the same as no choice.” Id. at
315.
3. Appellant’s Case
Ross and Martinez-Salazar are dispositive in Appellant’s
case. Appellant challenged only two members for cause -– Col
Neiheisel and Lt Col Fernandez. The military judge granted the
challenge for cause against Col Neiheisel but denied it as to Lt
Col Fernandez. Thereafter, Appellant used his peremptory
challenge to remove Lt Col Fernandez, resulting in an impartial
panel containing no members whom Appellant challenged for cause.
Consequently, any error in denying the challenge for cause
against Lt Col Fernandez was harmless in terms of the Sixth
Amendment.
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United States v. Miles, No. 01-0653/AF
Moreover, deciding this case on the basis of harmless error
does not violate Appellant’s Fifth Amendment due process rights
because it does not deprive him of anything granted him by the
statutes or rules governing peremptory challenges and appellate
review of denied causal challenges in the military justice
system.
a. The Statutes and Rules
The relevant statutes are Articles 41(b)(1) and 59(a),
Uniform Code of Military Justice, 10 U.S.C. §§ 841(b)(1) and
859(a)(2002). Article 41(b)(1) provides simply that every
accused is entitled to “one peremptory challenge of the members
of the court.”3 It does not require that the challenge be used,
and does not suggest the appellate consequences of any given
use. On the other hand, Article 59(a) states that “[a] finding
or sentence of court-martial may not be held incorrect on the
ground of an error of law unless the error materially prejudices
the substantial rights of an accused.”
The relevant rules are R.C.M. 912(f)(4) and (g). Rule
912(g) states merely that an accused “may challenge one member
peremptorily,” but does not require it. Rule 912(f)(4)
discusses the appellate consequences that result in a variety of
3
An accused is entitled to additional peremptory challenges in circumstances
other than those present in Appellant’s case. See Article 41(b)(2) and (c),
Uniform Code of Military Justice, 10 U.S.C. § 841(b)(2) and (c)(2002).
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United States v. Miles, No. 01-0653/AF
situations when a for-cause challenge is denied and the
peremptory challenge is implicated. Specifically, it states:
When a challenge for cause has been denied, failure
by the challenging party to exercise a peremptory
challenge against any member shall constitute waiver
of further consideration of the challenge upon further
review. However, when a challenge for cause is
denied, a peremptory challenge by the challenging
party against any member shall preserve the issue for
later review, provided that when the member who was
unsuccessfully challenged for cause is peremptorily
challenged by the same party, that party must state
that it would have exercised its peremptory challenge
against another member of the challenge for cause had
been granted.
(Emphasis added.)
Significantly, nothing in the language of R.C.M. 912(f)(4)
precludes a harmless error analysis of the denied challenge for
cause. When the requirements of R.C.M. 912(f)(4) are met, an
accused is guaranteed one thing only: that we will not apply
waiver. The accused is not guaranteed that once through the
courthouse door with his issue thus preserved, normal
constitutional and statutory harmlessness analysis will not
apply. Thus, I disagree with the majority’s rationale in
Armstrong, 54 M.J. at 54-55.
b. The Result
Appellant had two options when the military judge denied
his challenge for cause against Lt Col Fernandez: use his
peremptory challenge against Lt Col Fernandez, or use it against
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United States v. Miles, No. 01-0653/AF
another member.4 Nothing in the applicable statutes or rules
required him to use it against Lt Col Fernandez, either to cure
the military judge’s ruling or to preserve it. As a result,
when Appellant did use his peremptory challenge against Lt Col
Fernandez, he “did not lose a peremptory challenge. Rather, he
used the challenge in line with a principal reason for
peremptories: to help secure the constitutional guarantee of
trial by an impartial jury.” Martinez-Salazar, 528 U.S. at 315-
16.
Having made that hard yet discretionary choice, and having
thereby secured a panel comprised of no one whom Appellant then
or now asserted was in any way biased, any error in the military
judge’s denial of the challenge for cause against Lt Col
Fernandez was harmless beyond a reasonable doubt. Art. 59(a);
United States v. Alameda, 57 M.J. 190, 199-200 (C.A.A.F.
2002)(harmless beyond a reasonable doubt standard for
constitutional error).
That conclusion is especially appropriate here, because
Appellant never identified the specific, unbiased member he
intended to remove with his peremptory challenge. Therefore, he
cannot even show the challenge against that member would have
4
The third option of not using it at all would have resulted in Appellant
waiving the causal challenge issue absent plain error. Rule for Courts-
Martial 912(f)(4); See United States v. Tyndale, 56 M.J. 209, 217 (C.A.A.F.
2001).
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been successful. See United States v. Hurn, 55 M.J. 446, 448
(C.A.A.F. 2001)(“upon timely objection to a peremptory
challenge, . . . the burden shifts to the challenging party” to
prove the challenge is lawful); United States v. Witham, 47 M.J.
297 (C.A.A.F. 1997)(gender is unlawful basis for peremptory
challenge); United States v. Santiago-Davila, 26 M.J. 380
(C.M.A. 1988)(race is unlawful basis for peremptory challenge).
For these reasons, I would affirm the decision of the court
below.
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