United States v. Hollings

UNITED STATES, Appellee
v.
Deric B. HOLLINGS, Private First Class
U.S. Marine Corps, Appellant
No. 07-0084
Crim. App. No. 200500497
United States Court of Appeals for the Armed Forces
Argued May 1, 2007
Decided June 19, 2007
BAKER, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN, STUCKY, and RYAN, JJ., joined.
Counsel
For Appellant: Lieutenant Brian L. Mizer, JAGC, USN (argued).
For Appellee: Captain Roger E. Mattioli, USMC (argued);
Commander Paul C. LeBlanc, JAGC, USN (on brief).
Military Judges: R. S. Chester, P. J. Ware, and L. Korzan
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Hollings, No. 07-0084/MC
Judge BAKER delivered the opinion of the Court.
At a special court-martial consisting of officer members,
Appellant was convicted of disrespect toward a noncommissioned
officer, failure to obey a lawful order, and violation of a
general order, in violation of Articles 91 and 92, Uniform Code
of Military Justice (UCMJ), 10 U.S.C. §§ 891, 892 (2000). The
adjudged and approved sentence was a bad-conduct discharge and
no other punishments. The Court of Criminal Appeals affirmed in
an unpublished opinion. United States v. Hollings, No. NMCCA
200500497 (N-M. Ct. Crim. App. Oct. 18, 2006). We granted
review of the following issue:
WHETHER THE MILITARY JUDGE FAILED TO ADHERE TO THE
LIBERAL GRANT MANDATE WHEN HE DENIED A DEFENSE
CHALLENGE FOR CAUSE AGAINST CHIEF WARRANT OFFICER W
WHO SERVED AS ACTING LEGAL OFFICER TO THE CONVENING
AUTHORITY IN APPELLANT’S CASE.
Chief Warrant Officer (CWO-5) Westfall was the installation
personnel officer at Marine Corps Air Station, Miramar,
California. During voir dire, he stated that at the time
Appellant’s charges were preferred, he was “dual-hatted” as the
personnel officer for both the station as well as Headquarters
and Headquarters Squadron (H&HS). As a result, he was on the
distribution list for the squadron weekly legal report.1 He
stated that in the two weeks prior to the court-martial he
1
This report appears to have been a weekly listing of
individuals denoting where their cases were at the various
stages of legal processing.
2
United States v. Hollings, No. 07-0084/MC
recalled Appellant’s name on the report listing the particular
articles of the UCMJ he was alleged to have violated and the
fact that Appellant was pending court-martial at the time. He
characterized his interaction with the H&HS legal officer as
follows:
If she [the H&HS legal officer] needed something from
me in support [of] her legal actions, or if I had to
certify the unit diaries, recording the completed
legal action, I would do that. And if I needed
information from her to adjust the morning report or
to keep track of some of these other administrative
actions, then I would come back to see her.
Regarding the certification of unit diaries,2 he indicated that
he performed this task on days that the legal officer was not
available. He also stated that although certification of unit
diaries was a job that a legal officer could do and usually did,
he stated that it was a job that a personnel officer was
required to do. The relevant voir dire exchange follows:
DC: So when she [the legal officer] was unavailable
in the February timeframe, you would act as the legal
officer for H&HS?
MBR: No, sir. I didn’t act as the legal officer, but
I did certify the unit diary transactions which
recorded NJPs or court-martials [sic].
DC: Is that a job that a legal officer usually does?
2
The unit diary is the administrative medium used to report
events and occurrences of the unit, personnel actions and other
data relative to members of the unit. Marine Corps Total Force
System Personnel Reporting Instructions Manual (MCTFSPRIM),
Marine Corps Order PL080.40C, para. 20100 (June 7, 2001).
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MBR: It is a job that a legal officer can and usually
does. It also [is] a job that [the] personnel officer
is required to do, certify unit diaries.
DC: So you performed some duties of a legal officer
in February?
MBR: I certified unit diaries. I didn’t necessarily
request legal services. I didn’t type Group NJPs,
other UPBs [unit punishment books], I didn’t go in for
court-martials [sic] or office hours,3 I didn’t give
the [commanding officer] any opinions or legal
recommendations.
Defense counsel challenged CWO-5 Westfall for cause, claiming
that he qualified as a “legal officer” under Rule for Courts-
Martial (R.C.M.) 912(f)(1)(G). Defense counsel did not
challenge CWO-5 Westfall on the grounds of actual or implied
bias, a point verified by the military judge as part of his
ruling. Specifically, the military judge stated:
I did not hear him say, Captain Smith, that he was
involved in this case specifically, that he actually
reviewed or processed the charges that are pending
before this court-martial. And I don’t believe that
the limited involvement, if you will, in reviewing the
standard weekly legal report rises to the level of a
challenge for cause. If the sole basis for the
challenge is that he is or was acting as a legal
officer in this case, that basis doesn’t exist and the
challenge for cause is denied.
The United States Navy-Marine Corps Court of Criminal Appeals
agreed, concluding that “[t]he sole basis alleged at trial for
the challenge was that CWO Westfall was the unit legal officer
and was therefore prohibited from sitting as a member per R.C.M.
3
Hearings pursuant to Article 15, UCMJ, 10 U.S.C. § 815 (2000).
4
United States v. Hollings, No. 07-0084/MC
912(f)(1)(G). The Appellant does not allege, nor do we find,
evidence of bias, either actual or implied.” Hollings, No.
NMCCA 200500497, slip op. at 3.
On appeal to this Court, Appellant renews his argument that
CWO-5 Westfall acted as legal officer in this case. He further
argues that Westfall should have been removed for cause on the
ground of implied bias and that in denying Appellant’s challenge
for cause, the military judge failed to adhere to the liberal
grant mandate. We address each argument in turn.
R.C.M. 912(f)(1)(G) provides that “A member shall be
excused for cause whenever it appears that the member: . . . Has
acted in the same case as convening authority or as the legal
officer or staff judge advocate to the convening authority.”
Article 1 of the UCMJ4 defines “legal officer” as “any
commissioned officer of the . . . Marine Corps . . . designated
to perform legal duties for a command.” Put directly, CWO-5
Westfall did not meet this definition and he did not act in this
case as the legal officer. He did what personnel officers do,
he certified the unit diary. On this record, any argument to
the contrary is at best a reach.
Appellant next argues in the alternative that CWO-5
Westfall should have been excused on the ground of implied bias.
4
10 U.S.C. § 801 (2000).
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United States v. Hollings, No. 07-0084/MC
Whether Westfall technically served as a “legal officer” in this
case or not, he was a “career legal officer,” he was familiar
with Appellant’s case as a result of his duties, and at least
some of those duties were legal in nature. According to
Appellant, as a result, CWO-5 Westfall’s participation would
undermine the public’s perception in the impartiality and
fairness of Appellant’s court martial.
We are left to wonder whether we are reviewing a different
record of trial. According to CWO-5 Westfall’s voir dire
testimony, he served as “Personnel Officer for the station.” He
also had occasion to cover the personnel officer’s
responsibilities for H&HS. This was Appellant’s squadron. In
this capacity, CWO-5 Westfall “was on the distribution for the
H&HS legal report, the weekly legal report, wherein the
defendant’s name and the charges against him are represented on
that report. No other detailed information is present on that
report.” Westfall had served in the Marine Corps as a legal
officer and went to the Naval Justice School for the legal
officer’s course in 1990 or 1991. But he was not a “career
legal officer.” He served as a legal officer for “two years
plus” following the legal officer’s course. He then “assisted
the legal officer at the infantry battalion on my next tour,
helped out a little at the regiment, and have pretty much been
relieved from the legal officer responsibility since then.”
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United States v. Hollings, No. 07-0084/MC
CWO-5 Westfall was not a legal officer at the time of
Appellant’s court-martial. His knowledge was derived from the
H&HS weekly legal report, which he reviewed in his capacity as
acting personnel officer for the squadron. There is no
indication that CWO-5 Westfall knew Appellant, and the only
information in the weekly legal report about the case pertained
to his name and the charges against him, facts of record
immediately evident to anyone attending Appellant’s court-
martial. When asked by trial counsel whether he would “have any
reluctance whatsoever to [disagree with the convening
authority]” on the findings or sentence in this case, CWO-5
Westfall responded, “No, sir. I would be able to do what I
thought was right.” He then added a finishing touch of salt:
“And besides, I can’t get promoted again, so it really doesn’t
matter.” Defense counsel did not challenge CWO-5 Westfall on
the ground of implied bias. And, on this record, we concur with
the lower court’s finding that there was no evidence of bias,
actual or implied.
Nonetheless, Appellant argues that the military judge erred
because he did not indicate that he addressed implied bias or
considered the liberal grant mandate in ruling on Appellant’s
challenge. We have enjoined military judges to follow the
liberal grant mandate in evaluating challenges for cause.
United States v. Clay, 64 M.J. 274, 277 (C.A.A.F. 2007); United
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United States v. Hollings, No. 07-0084/MC
States v. Leonard, 63 M.J. 398, 402 (C.A.A.F. 2006); United
States v. Moreno, 63 M.J. 129, 134 (C.A.A.F. 2006). A military
judge who addresses the concept on the record is entitled to
greater deference than one who does not. Clay, 64 M.J. at 277.
However, this does not suggest that the military judge is
entitled to no deference. Moreover, at trial the military judge
did not address actual or implied bias because defense counsel
argued that the sole basis for challenging CWO-5 Westfall was
his per se disqualification as a legal officer under R.C.M.
912(f)(1)(G).
With respect to Appellant’s implied bias argument, the
liberal grant mandate recognizes the military judge’s
responsibility to prevent both the reality and the appearance of
bias involving potential court members. Id. R.C.M.
912(f)(1)(N) requires the removal of a member “in the interest
of having the court-martial free from substantial doubt as to
legality, fairness and impartiality.” For the reasons stated
above, no such doubts were raised by CWO-5 Westfall’s responses
during voir dire, and the military judge acted within his
discretion in denying the challenge for cause.
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed.
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