United States v. Jeter

This opinion is subject to revision before publication.
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Willie C. JETER, Lieutenant Junior Grade
United States Navy, Appellant
No. 22-0065
Crim. App. No. 201700248
Argued October 12, 2022—Decided September 25, 2023
Military Judge: Heather Partridge (arraignment)
and Jason L. Jones (trial)
For Appellant: Lieutenant Aidan J. Stark, JAGC,
USN (argued); Major Anthony M. Grzincic, USMC
(on brief).
For Appellee: Captain Tyler W. Blair, USMC
(argued); Colonel Joseph M. Jennings, USMC,
Lieutenant Gregory A. Rustico, JAGC, USN, and
Brian K. Keller, Esq. (on brief); Lieutenant Colonel
Christopher G. Blosser, USMC, and Lieutenant
Commander Jeffrey S. Marden, JAGC, USN.
Judge SPARKS delivered the opinion of the Court,
in which Chief Judge OHLSON, Judge HARDY, and
Senior Judge ERDMANN joined. Judge MAGGS
filed a dissenting opinion.
_______________
United States v. Jeter, No. 22-0065/NA
Opinion of the Court
Judge SPARKS delivered the opinion of the Court. 1
In United States v. Crawford, 15 C.M.A. 31, 35 C.M.R.
3 (1964), our predecessor Court stated that in the course of
creating a venire panel, it is appropriate to add an African
American servicemember to the panel specifically because
of that servicemember’s race. The Court stated that if such
a step constitutes discrimination, “it is discrimination in
favor of, not against, an accused.” Id. at 41, 35 C.M.R. at
13. However, in Batson v. Kentucky, the Supreme Court
held that “[a] person’s race simply is unrelated to his
fitness as a juror.” 476 U.S. 79, 87 (1986) (citation omitted)
(internal quotation marks omitted). Accordingly, we
conclude today that our predecessor Court’s holding in
Crawford was abrogated by the Supreme Court’s holding
in Batson. In other words, Crawford’s authorization—
indeed, its encouragement—to use race when deciding who
should be appointed to a court-martial venire panel is no
longer good law. 2 As a result, whenever an accused makes
a prima facie showing that race played a role in the panel
selection process at his court-martial, a presumption will
arise that the panel was not properly constituted. The
government may then seek to rebut that presumption.
Here, the Government did not meet its burden. Therefore,
the decision below is reversed but a rehearing is
authorized.
In 2017, contrary to his pleas, a panel of officer
members sitting as a general court-marital convicted
Lieutenant Junior Grade Willie C. Jeter (Appellant), an
African American naval officer, of violating the Navy’s
1 The Court heard oral argument in this case at Naval Base
San Diego, San Diego, California, as part of the Court’s “Project
Outreach.” See United States v. Mahoney, 58 M.J. 346, 347 n.1
(C.A.A.F. 2003). Project Outreach is a public awareness program
demonstrating the operation of a federal court of appeals and the
military justice system.
2 This conclusion is consistent with Article 25, Uniform Code
of Military Justice (UCMJ), 10 U.S.C. § 825(d)(2) (2012), which
makes no mention of race as one of the factors that may be
considered in the panel selection process.
2
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Opinion of the Court
sexual harassment instruction, drunken operation of a
vehicle, sexually assaulting two different women,
extortion, burglary, conduct unbecoming an officer,
communicating a threat, and unlawful entry, in violation
of Articles 92, 111, 120, 127, 129, 133, and 134, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 911,
920, 927, 929, 933, 934 (2012). 3 The panel sentenced
Appellant to twenty years confinement and a dismissal.
The convening authority approved the sentence as
adjudged. In relevant part, on appeal to the United States
Navy-Marine Corps Court of Criminal Appeals, Appellant
unsuccessfully challenged whether the exclusion of
minority members from the court-martial panel violated
his equal protection and due process rights. United States
v. Jeter, 78 M.J. 754, 767 (N-M. Ct. Crim. App. 2019). The
lower court affirmed the findings and sentence. Id. at 780.
We vacated the judgment of the lower court and remanded
for further consideration in light of United States v. Bess,
80 M.J. 1 (C.A.A.F. 2020). United States v. Jeter, 80 M.J.
200 (C.A.A.F. 2020) (summary disposition).
Upon remand, the convening authority, his acting
convening authority, and his staff judge advocate (SJA)
submitted affidavits to the lower court related to the
member-selection process. United States v. Jeter, 81 M.J.
791, 797 (N-M. Ct. Crim. App. 2021). The lower court found
that the convening authority did not violate Appellant’s
equal protection or due process rights and affirmed the
findings and sentence. Id. at 794, 798, 800. We then
granted review of the following issue:
Did the convening authority violate Appellant’s
equal protection rights, over defense objection,
when he convened an all-white panel using a
racially nonneutral member selection process and
provided no explanation for the monochromatic
3 After the findings were announced, the military judge
conditionally dismissed the sexual harassment specification, one
of the two specifications of drunken operation of a vehicle, one of
the three specifications of sexual assault, and one of the two
specifications of unlawful entry.
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Opinion of the Court
result beyond a naked affirmation of good faith in
spite of a defense objection?
United States v. Jeter, 82 M.J. 355 (C.A.A.F. 2022) (order
granting review). Following oral argument, we ordered
additional briefing on the following specified issues:
I. In United States v. Crawford, 15 C.M.A. 31, 35
C.M.R. 3 (1964), this Court held that in the course
of panel selection a race conscious process is
permissible for the purpose of inclusion. How does
the Crawford decision affect the analysis of this
case under Avery v. Georgia, 345 U.S. 559 (1953)?
II. In light of Appellant’s statement at oral
argument that race is an improper consideration
in detailing panel [members], should [this] Court
overrule United States v. Crawford, 15 C.M.A. 31,
35 C.M.R. 3 (1964)?
United States v. Jeter, 83 M.J. 77, 77 (C.A.A.F. 2022) (order
granting review).
We hold that to the extent Crawford allows a convening
authority to depart from the factors present in Article
25(d)(2), UCMJ, by seeking, even in good faith, to use race
as a criterion for selection in order to make the members
panel more representative of the accused’s race, it has been
abrogated by Batson, 476 U.S. 79.
I. Background 4
On January 4, 2017, the convening authority convened
a general court-martial under General Court-Martial
Convening Order 1-17 (GCMO 1-17), naming ten officers as
members, of whom two were identified as African
American men. Jeter, 81 M.J. at 797. On April 6, 2017, the
acting convening authority amended this convening order
(GCMO 1A-17), relieving all ten officers and naming eight
new ones. The order was amended again four days later by
the original convening authority, (GCMO 1B-17), who
4 The facts underlying the offenses of which Appellant was
convicted are not relevant to this appeal. That said, they are set
forth in the first of the lower court’s well-crafted opinions. Jeter,
78 M.J. at 762-64.
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Opinion of the Court
added one additional member. Seven of the nine members’
questionnaires asked them to identify their race and sex.
All seven members identified themselves as Caucasian
males. The two other members’ questionnaires did not
contain a question regarding race or gender. Appellant’s
trial on the merits began on April 10, 2017.
Prior to voir dire, trial defense counsel challenged the
makeup of the panel, citing a “systematic exclusion of
members based on race and gender.” The military judge
noted that “[i]t appears that [the panel] is all white men”
and that trial defense counsel’s motion relied on the “bare
makeup of the panel.” The military judge found that there
was no “evidence that there is an exclusion—a systematic,
purposeful exclusion of any minority members or women or
even rank, or you know position, staff or anything like that
based on its face,” and denied the motion.
Later during the trial, defense counsel again raised the
objection to the makeup of the panel. In doing so, he
provided a portion of a trial transcript from a separate
court-martial, allegedly convened by the same convening
authority, where the defense also raised concerns about the
lack of minority representation on the panel. The military
judge maintained his initial ruling, stating that there was
“no evidence [the convening authority is] not using the
Article 25 criteria; background, education, age, judicial
temperament [when selecting members].”
II. Discussion
We begin with the continuing reality that despite
significant progress, sadly, racial prejudice persists in our
society at large. However, we affirm an observation the
Court of Military Appeals made some thirty-five years ago
that, “In our American society, the Armed Services have
been a leader in eradicating racial discrimination.” United
States v. Santiago-Davila, 26 M.J. 380, 390 (C.M.A. 1988).
Nevertheless, we cannot blind ourselves to the fact that the
military justice system, its member selection process in
particular, remains vulnerable to actions by those who
harbor outdated views regarding women and minorities.
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Opinion of the Court
Over the years, attempting to guard against this potential
threat, this Court and the Court of Military Appeals have
applied the Supreme Court’s Fifth Amendment
jurisprudence to the member selection process for courts-
martial. “Equal justice under law requires a criminal trial
free of racial discrimination in the jury selection process.”
Flowers v. Mississippi, 139 S. Ct. 2228, 2242 (2019). Fifth
Amendment equal protection includes the “right to be tried
by a jury from which no ‘cognizable racial group’ has been
excluded.” Santiago-Davila, 26 M.J. at 390 (quoting
Batson, 476 U.S. at 96). However, “[n]either in civilian
courts nor in a court-martial does the Fifth Amendment
guarantee an accused jurors or members who are of the
same race.” Bess, 80 M.J. at 7.
A. United States v. Crawford
In Crawford, the accused, an African American soldier,
was tried for alleged assaults against white soldiers. 15
C.M.A at 35, 35 C.M.R. at 7. Upon receiving the accused’s
request for enlisted members, the staff judge advocate
asked the adjutant general to furnish a list of senior
noncommissioned officers (NCOs) who were regarded as
“ ‘responsible and available for court-martial duty.’ ” Id. at
50, 35 C.M.R. at 22 (Ferguson, J., dissenting). In view of
the fact that the accused was African American, the SJA
asked that the list include at least one African American
enlisted man. Id., 35 C.M.R. at 22. The list was submitted
with the African American members marked with an
asterisk. Id., 35 C.M.R. at 22. Interestingly, the SJA
testified that “ ‘while I thought it desirable that at least one
of the enlisted members be [African American] . . . one of
the officer members was [African American], and that a
[African American] enlisted member was therefore not too
important.’ ” Id., 35 C.M.R. at 22. When the list was
submitted to the convening authority, he requested by
name a particular African American NCO. Id., 35 C.M.R.
at 22. When this individual was contacted, he vehemently
protested that he was white and not African American. Id.,
35 C.M.R. at 22. The adjutant general then suggested two
other enlisted men believed to be African American. Id. at
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Opinion of the Court
36, 35 C.M.R. at 8. One turned out to be white and the other
was rejected because two other members of his command
were already on the list as nominees for the court-martial.
Id., 35 C.M.R. at 8. After further inquiry, the SJA
succeeded in obtaining a “ ‘responsible’ ” African American
enlisted member and he was added to the list. Id., 35
C.M.R. at 8.
Regarding this aspect of the member selection process,
the Court of Military Appeals struck a distinction between
the purposeful exclusion of African American members and
the intentional inclusion of African American members on
a court-martial panel. It went on to hold, “If deliberately to
include qualified persons is discrimination, it is
discrimination in favor of, not against an accused. Id. at 41,
35 C.M.R. at 13.
B. Abrogation of Crawford
Before assessing Crawford’s continuing vitality in the
face of Supreme Court precedent to the contrary, we begin
with a critical observation: Appellant contends correctly
that Crawford’s holding stating that deliberate selection of
an African American member was proper inclusion to
ensure fair representation is without a statutory basis
pursuant to Article 25, UCMJ. This provision is a race-
neutral statute delineating certain criteria convening
authorities may consider when exercising their discretion
to detail individuals who are “best qualified” to perform the
duties as court-martial members. 5 Nowhere is the race of
potential members or the race of the accused listed. Indeed,
we have characterized the rule in Crawford as a
“[departure] from the factors present in Article 25.” United
States v. Riesbeck, 77 M.J. 154, 163 (C.A.A.F. 2018); see
also United States v. Smith, 27 M.J. 242, 248 (C.M.A. 1988)
(a convening authority might use race, a criterion not
5 “When convening a court-martial, the convening authority
shall detail as members thereof such members of the armed
forces as, in his opinion, are best qualified for the duty by reason
of age, education, training, experience, length of service, and
judicial temperament.” Article 25(d)(2), UCMJ.
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Opinion of the Court
specified in Article 25, UCMJ, to have a more
representative panel). The language of Article 25, UCMJ,
at the time of Crawford did not then, and does not now,
include race as a factor to be considered by the convening
authority. “[W]hen a statute speaks with clarity to an
issue[,] judicial inquiry into the statutes meaning . . . is
finished.” Estate of Cowart v. Nicklos Drilling Co., 505 U.S.
469, 475 (1992). “[T]he basic and unexceptional rule [is]
that courts must give effect to the clear meaning of the
statute as written.” Id. at 476. Thus, Article 25, UCMJ, as
written, does not support the holding in Crawford and to
this day its holding remains unmoored from any statutory
authority. To be clear, we do not mean to suggest that
Article 25, UCMJ, presents an exhaustive list of the factors
that may be considered. Other factors that are also not
listed in Article 25, UCMJ, such as operational necessity or
availability of prospective members, have long been
recognized as valid considerations. But none of these
factors have ever been expressly disavowed by the
Supreme Court. We see no reason to question the continued
viability of those factors that neither this Court nor the
Supreme Court have ever prohibited.
Race in the context of jury selection has been singled
out for special attention by the Supreme Court. Batson is a
direct rejection of the Crawford holding. Batson affirmed
what Judge Ferguson notably proclaimed some twenty-two
years earlier in his dissent that “race is an impermissible
criterion for selection of jurors.” Crawford, 15 C.M.A. at 58,
35 C.M.R. at 30 (Ferguson, J., dissenting). “A person’s race
simply ‘is unrelated to his fitness as a juror.’ ” Batson, 476
U.S. at 87 (citation omitted). Regarding the issue of race in
the selection process, Justice Powell in Batson rejected
outdated assumptions. As he succinctly put it, albeit in the
context of the prohibition against the exclusion of African
American veniremen, “[T]he Equal Protection Clause . . .
forbids the States to strike black veniremen on the
assumption that they will be biased in a particular case
simply because the defendant is black.” Id. at 97. The
statement is no less true as it pertains to the military
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Opinion of the Court
justice system when the convening authority is allowed to
add some arbitrary number of African American members
because they and the accused share the same race or ethnic
group.
Therefore, our holding in Crawford is abrogated by the
Supreme Court’s holding in Batson. 6 In other words,
Crawford is no longer good law. See, e.g., United States v.
Gomez, 877 F.3d 76, 90 (2d Cir. 2017) (explaining a holding
“must yield” when it “conflicts with” a Supreme Court
decision). Abrogation of the Crawford holding allows a
more fulsome embrace of the principle that race shall not
be a criterion in the selection of court-martial members. It
is impermissible to exclude or intentionally include
prospective members based on their race.
C. Racial Identifiers in Questionnaires
Against this backdrop we address Appellant’s challenge
regarding the racial identifier contained in the member
questionnaires. At trial, the defense contended that the
racial identifier on the questionnaire showed that the
convening authority solicited race and considered it in
selecting the members in this case. Through use of the
questionnaires the convening authority had indeed
solicited the race of prospective court-martial members.
However, it had yet to be determined whether he had
actually considered race in his selection of the members.
Appellant’s case was pending review before this Court
when Bess was decided and was remanded to the lower
court for reconsideration in light of that decision. 7 On
remand, the court of criminal appeals found the evidence
6 Our reference to Batson is intended to recognize the specific
proposition from Batson that “[a] person’s race simply is
unrelated to his fitness as a juror.” 476 U.S. at 87 (citation
omitted) (internal quotation marks omitted).
7 In Bess, 80 M.J. at 10, we held that the alleged absence of
African American members on a general court-martial panel did
not establish a prima facie case of exclusion based on race, as the
convening authority's actions were entitled to a presumption of
regularity.
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Opinion of the Court
presented to it on remand “sufficient to question the
presumption of regularity of the convening authorities’
member selection.” Jeter, 81 M.J. at 795. Consequently, the
court ordered affidavits from the convening authorities and
the SJA. Id. The two convening authorities could
remember little about the selection process in this case
other than to say that they may have been aware of the
race of some of the prospective members but that neither
recalled considering race as a criterion for selection. The
SJA’s affidavit described the general process for selecting
prospective court-martial members. Regarding the original
convening order in this case (GCMO 1-17), he indicated
that these members would have been drawn from “our
available pool of member questionnaires.” The essence of
his declaration was that he “[did] not recall the convening
authority in any case to ever have been aware of or
discussed the race of any member of any court-martial.”
Therefore, on remand the information available to the
lower court was as follows: the names for the original
convening order, as well as its two amendments, which
were drawn from an “available pool of member
questionnaires”; the questionnaires in this case contained
racial identifiers; two African American members on the
original convening order were subsequently removed
pursuant to the first amendment to the convening order;
and three other courts-martial with African American
accuseds were convened by this convening authority before
all-white panel members.
We have previously addressed racial identifiers. See
United States v. Loving, 41 M.J. 213, 285 (C.A.A.F. 1994)
(“We will not presume improper motives from inclusion of
racial . . . identifiers on lists of nominees for court-martial
duty”). “[A] convening authority is not required to be race-
ignorant; he or she is only required to be race-neutral.”
United States v. Green, 37 M.J. 380, 384 (C.M.A. 1993).
Although racial identifiers are neutral, they are capable of
being used for proper as well as improper reasons. Loving,
41 M.J. at 385. In this context, we are reminded of Chief
Justice Vinson’s caution against a “practice [that] makes it
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Opinion of the Court
easier for those to discriminate who are of a mind to
discriminate.” Avery v. Georgia, 345 U.S. 559, 562 (1953).
Consequently, the principles espoused in Batson inform
our view that we must carefully examine member selection
practices to protect the military accused from procedures
that may operate to exclude persons on racial grounds,
regardless of the race of the accused. See Batson, 476 U.S.
at 88. Just as in the civilian context, a convening authority
may not draw up a members panel pursuant to the neutral
criteria of Article 25, UCMJ, only to have discriminated at
other stages of the process. See id. Here, Appellant made a
prima facie showing that gives rise to a presumption that
race was allowed to enter the selection process. The
circumstances include the racial identifier in the
questionnaires, other evidence before the court of criminal
appeals, and importantly, the command’s understandable
belief that the Crawford case—which not only authorized
but essentially encouraged the consideration of race—was
still good law.
We need not impugn the integrity or credibility of the
affiants’ statements to the lower court. After all, the
affidavits were submitted some four years after the court-
martial. It is, therefore, not surprising that their memories
regarding the selection process in this case were less than
clear. Here, however, the appellate record does not address
this “available pool of members questionnaires” alluded to
in the affidavits. The use of a race-conscious component in
the selection process combined with the absence of any
evidence in the record addressing how and by whom
selection was made from this pool of members leaves us to
seriously question whether the impermissible criterion of
race might have found its way into the selection process—
possibly even before the convening authorities made their
selections. Although the Government obtained affidavits
from the SJA, the convening authority, and the acting
convening authority regarding this matter, for all intents
and purposes those affidavits simply reflected that they
could not recall how the venire panel was chosen. Thus, we
are left with an unrebutted inference that Appellant’s
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Opinion of the Court
constitutional right to equal protection under the law was
violated when the acting convening authority
presumptively used a race-conscious selection process for
panel members. Under these facts, we reverse. See Weaver
v. Massachusetts, 582 U.S. 286, 301 (2017) (granting
“automatic relief to defendants who prevailed on claims
alleging race . . . discrimination in the selection of the petit
jury”); Batson, 476 U.S. at 100 (“If the trial court decides
that the facts establish, prima facie, purposeful
discrimination and the prosecutor does not come forward
with a neutral explanation for his action, our precedents
require that petitioner’s conviction be reversed.”).
As a final matter, much of the information concerning
the selection process in this case came to light during its
lengthy appellate review. True, the trial defense team was
presented the opportunity to pursue more evidence to
support its claim of purposeful exclusion but chose not to
avail themselves of this opportunity. To be fair, however,
neither the trial participants nor the lower court could
have anticipated our conclusion that Crawford is
abrogated, thereby changing the legal landscape. Going
forward, it is our hope that trial participants will
understand that many of the questions that arose in this
case might have been resolved through detailed discovery
requests and generous government responses to such
requests.
III. Conclusion
The decision of the United States Navy-Marine Corps
Court of Criminal Appeals is reversed. The findings of
guilty and the sentence are set aside. The record of trial is
returned to the Judge Advocate General of the Navy. A
rehearing may be ordered.
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Judge MAGGS, dissenting
Judge MAGGS, dissenting.
Everyone involved in this case—Appellant, the Govern-
ment, the military judge, the judges of the United States
Navy-Marine Corps Court of Criminal Appeals (NMCCA),
and all the judges of this Court—agrees on a fundamental
point: A convening authority may not discriminate on the ba-
sis of race when detailing members to serve on a court-mar-
tial. Such discrimination would not only be unauthorized by
Article 25, Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 825 (2018), but would also violate the Due Process
Clause of the Fifth Amendment of the United States Consti-
tution. I fully concur with the majority opinion’s thorough dis-
cussion of this basic principle.
But whether a convening authority may discriminate on
the basis of race is not specifically at issue in this appeal. The
precise question at issue is whether Appellant has shown, ei-
ther by affirmative evidence in the record or through unre-
butted evidentiary presumptions, that racial discrimination
occurred in this case. For the reasons explained below, I agree
with both the NMCCA and the military judge that Appellant
has not established that the convening authority acted im-
properly. I therefore respectfully dissent from the Court’s
judgment setting aside the findings and sentence in this case.
Before turning to my analysis, a preliminary point re-
quires attention. The Court’s opinion focuses almost exclu-
sively on the two specified issues for which this Court or-
dered additional briefing. 1 Addressing these issues, the
Court concludes that United States v. Crawford, 15 C.M.A.
31, 35 C.M.R. 3 (1964), conflicts with subsequent decisions
of the United States Supreme Court and is therefore no
longer good law. I fully agree with the Court. Crawford was
1 Specified Issue I is: “In United States v. Crawford, 15
C.M.A. 31, 35 C.M.R. 3 (1964), this Court held that in the course
of panel selection a race-conscious process is permissible for the
purpose of inclusion. How does the Crawford decision affect the
analysis of this case under Avery v. Georgia, 345 U.S. 559(1953)?” Specified Issue II is: “In light of Appellant’s statement
at oral argument that race is an improper consideration in de-
tailing panel members, should this Court overrule United States
v. Crawford, 15 C.M.A. 31, 35 C.M.R. 3 (1964)?”
United States v. Jeter, No. 22-0065/NA
Judge MAGGS, dissenting
incorrect when it was decided, and subsequent decisions of
the Supreme Court have eliminated any weight it carried
as precedent. But in my view, the invalidity of Crawford
does not affect the outcome of this case. The NMCCA did
not cite or rely on Crawford in rejecting Appellant’s claims.
United States v. Jeter, 81 M.J. 791 (N-M. Ct. Crim. App.
2021). The Government also does not rely on Crawford in
defending the NMCCA’s judgment and specifically asserts
that the holding in Crawford is not directly implicated. And
for the reasons explained below, reference to Crawford is
unnecessary to resolve this appeal. Thus, while I agree
with the Court about Crawford, I reach a different conclu-
sion about whether we should affirm the NMCCA.
I. Appellant’s Arguments
In his well-organized briefs, Appellant presents three
distinct arguments for relief. These arguments rest on sep-
arate doctrines established by precedents of the United
States Supreme Court. In my view, however, Appellant
does not prevail under these precedents.
A. Appellant’s Argument Based on Avery and Alexander
Appellant’s first argument relies on the Supreme
Court’s decisions in Avery v. Georgia, 345 U.S. 559 (1953),
and Alexander v. Louisiana, 405 U.S. 625 (1972). In Avery,
a jury in a Georgia state court found an African American
criminal defendant guilty of rape. 345 U.S. at 560. The
defendant sought to overturn his conviction based on racial
discrimination in the selection of the jurors. Id. at 560-62.
The record showed that the names of persons eligible for
jury service had been written on color-coded tickets and
placed in a box. Id. at 560-61. A judge then selected the
venire by drawing sixty tickets from the box. Id. The
selection process was not race-neutral because “the names
of white persons . . . [were] printed on white tickets; the
names of Negroes [were] printed on yellow tickets.” Id. at
560. The use of separately colored tickets had “no
authorization in the Georgia statutes.” Id. at 562. Indeed,
there was testimony from a “member of the county Board
of Jury Commissioners that the use of these white and
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Judge MAGGS, dissenting
yellow slips was designed for purposes of racial
discrimination, and it [was not] shown that they could
serve any other purpose.” Id. at 564 (Frankfurter, J.,
concurring). The judge who selected the jurors could see the
colors of the tickets through an aperture in the box. Id.Although five percent of the tickets were yellow, the judge
did not select any of them for the venire from which the
jury was chosen. Id. at 563 (Reed, J., concurring).
Accordingly, the jury in the case did not include any
African Americans. Id. at 561 (opinion of the Court). Based
on these facts, the United States Supreme Court agreed
with the Georgia Supreme Court that the defendant in
Avery had “certainly established a prima facie case of
discrimination.” Id. at 562.
The Court in Avery then considered whether the state
had rebutted the prima facie case. A key fact was that the
judge who selected the tickets had testified that “he did not,
nor had he ever, practiced discrimination in any way, in the
discharge of that duty.” Id. at 561. The Georgia Supreme
Court had held that the judge’s testimony showed that the
use of the colored tickets had caused no harm. Avery v.
State, 70 S.E.2d 716, 722 (Ga. 1952). But the U.S. Supreme
Court rejected this conclusion, stating that “based upon
[its] independent analysis of the record [the] petitioner has
made a sufficient showing of discrimination in the organi-
zation of this particular panel.” Avery, 345 U.S. at 561 (foot-
note omitted). Justice Frankfurter concurred, explaining:
“The mind of justice, not merely its eyes, would have to be
blind to attribute” the absence of African Americans on the
jury “to mere fortuity” as opposed to intentional discrimi-
nation. Id. at 564 (Frankfurter, J., concurring).
In Alexander, a Louisiana state court convicted an Afri-
can American defendant of rape. 405 U.S. at 626. On ap-
peal, the defendant argued that his indictment was invalid
because of racial discrimination in the selection of the
members of the grand jury. Id. at 626-28. The record
showed that a commission had selected grand jurors
through a multistep process that began by asking local
3
United States v. Jeter, No. 22-0065/NA
Judge MAGGS, dissenting
residents to fill out a questionnaire. Id. at 627-28. The Su-
preme Court explained:
The questionnaire included a space to indicate the
race of the recipient. Through this process, 7,374
questionnaires were returned, 1,015 of which
(13.76%) were from Negroes, and the jury commis-
sioners attached to each questionnaire an infor-
mation card designating, among other things, the
race of the person, and a white slip indicating
simply the name and address of the person. The
commissioners then culled out about 5,000 ques-
tionnaires, ostensibly on the ground that these
persons were not qualified for grand jury service
or were exempted under state law. The remaining
2,000 sets of papers were placed on a table, and
the papers of 400 persons were selected, purport-
edly at random, and placed in a box from which
the grand jury panels of 20 for Lafayette Parish
were drawn. Twenty-seven of the persons thus se-
lected were Negro (6.75%). On petitioner’s grand
jury venire, one of the 20 persons drawn was Ne-
gro (5%), but none of the 12 persons on the grand
jury that indicted him, drawn from this 20, was
Negro.
Id. at 627-28 (footnotes omitted).
Following its earlier decision in Avery, the Supreme
Court held that the defendant in Alexander had estab-
lished a prima facie case of discrimination. Id. at 631. The
Court explained:
This Court has never announced mathemati-
cal standards for the demonstration of ‘systematic’
exclusion of blacks but has, rather, emphasized
that a factual inquiry is necessary in each case
that takes into account all possible explanatory
factors. The progressive decimation of potential
Negro grand jurors is indeed striking here, but we
do not rest our conclusion that petitioner has
demonstrated a prima facie case of invidious ra-
cial discrimination on statistical improbability
alone, for the selection procedures themselves
were not racially neutral. The racial designation
on both the questionnaire and the information
4
United States v. Jeter, No. 22-0065/NA
Judge MAGGS, dissenting
card provided a clear and easy opportunity for ra-
cial discrimination.
Id. at 630. The Supreme Court next considered whether the
state had rebutted this prima facie case of racial discrimi-
nation “by showing that permissible racially neutral selec-
tion criteria and procedures have produced the monochro-
matic result.” Id. at 632. The Court concluded that the
state had not met its burden. Id. Although a member of the
commission had testified “that no consideration was given
to race during the selection procedure,” the Supreme Court
found this statement inadequate to rebut the prima facie
case because the “ ‘result bespeaks discrimination, whether
or not it was a conscious decision on the part of any indi-
vidual jury commissioner.’ ” Id. (quoting Hernandez v.
Texas, 347 U.S. 475, 482 (1954)).
Appellant argues that the Avery and Alexander deci-
sions require reversal of the NMCCA. He asserts that he
has established a prima facie case of discrimination be-
cause (1) all of the members of his court-martial were
white, (2) the selection process was not race-neutral given
that some members under consideration for detail to the
court-martial had completed questionnaires that asked
about their race, (3) the convening authority chose the
members of the panel based on the information in the ques-
tionnaires, and (4) the members were chosen from a large
population of available persons. Appellant further argues
that the Government has not rebutted the prima facie case
because the convening authority and acting convening au-
thority failed to explain why they did not select any African
Americans to serve on the panel.
Although trial defense counsel challenged the makeup
of the panel before the military judge, he did not cite Avery
or Alexander, nor did he raise the specific argument that
he now makes before this Court. Trial defense counsel ini-
tially alleged “systematic exclusion of members based on
race” solely because the panel included no minority mem-
bers even though the convening authority had the “oppor-
tunity to put a minority representation on the panel.” He
did not allege or provide any evidence that the convening
5
United States v. Jeter, No. 22-0065/NA
Judge MAGGS, dissenting
authority had abused the selection system. On the con-
trary, trial defense counsel asserted that “all we have is the
makeup to go on, sir, but we believe that that is sufficient
without the allegation raised up.” Later on at the trial, de-
fense counsel presented distinct arguments based on an al-
leged pattern of all-white panels in the Norfolk region. In
his briefs before the NMCCA, Appellant also did not cite
Avery or Alexander.
Accordingly, in my view, Appellant forfeited the
argument based on Avery and Alexander that he now
makes before this Court. See United States v. King, 83 M.J.
115, 120 (C.A.A.F. 2023) (arguments concerning court-
martial composition that are not raised at trial are
forfeited). Because Appellant forfeited the issue, we may
review it only for plain error. 2 Id. at 120-21. Under the
plain error standard of review, the appellant ordinarily
“ ‘bears the burden of establishing: (1) there is error; (2) the
error is clear or obvious; and (3) the error materially
prejudiced a substantial right.’ ” Id. at 123 (quoting United
States v. Robinson, 77 M.J. 294, 299 (C.A.A.F. 2018)). But
when the error alleged is a constitutional error, as here,
this Court has held that the government bears the burden
on the issue of prejudice and must prove that the error was
harmless beyond a reasonable doubt. United States v.
Tovarchavez, 78 M.J. 458, 462 (C.A.A.F. 2019).
Applying the plain error standard of review, I conclude
that Appellant is not entitled to relief because any error
under Avery and Alexander was not clear and obvious. I
reach this conclusion for two reasons. First, the facts of this
case are markedly different from the facts of Avery and
2 This Court has considered some arguments not raised be-
fore a Court of Criminal Appeals, but the practice has been crit-
icized. See United States v. Johnson, 42 M.J. 443, 448 (C.A.A.F.
1995) (Crawford, J., concurring in the result) (“If an issue is not
raised by counsel, not specified and not addressed in an opinion,
waiver should apply absent a showing of good cause for failing
to raise the issue or manifest injustice.”); cf. Cutter v. Wilkinson,
544 U.S. 709, 718 n.7 (2005) (“[W]e are a court of review, not of
first view.”).
6
United States v. Jeter, No. 22-0065/NA
Judge MAGGS, dissenting
Alexander. In Avery, state officials used white and yellow
tickets to identify potential jurors, without legal authoriza-
tion, specifically so they could discriminate against African
Americans. 345 U.S. at 560-62. In addition, a review of the
entire record left the Court unconvinced by the state
judge’s utterly implausible assertion that he had not used
the colored tickets to discriminate notwithstanding the all-
white jury that he selected. Id.By contrast, in this case, agents of the command cited
Rule for Courts-Martial (R.C.M.) 912 in their question-
naires as authority for asking potential members about
their race. 3 The record contains no testimony suggesting
the selection process “was designed for purposes of racial
discrimination,” as in Avery. 345 U.S. at 564 (Frankfurter,
J., concurring). Nor are the questionnaires clearly and ob-
viously comparable to Avery’s white and yellow tickets. The
questionnaires asked each prospective member over fifty
questions about a wide range of information, while the tick-
ets reduced each prospective juror to two characteristics:
their name and race. Id. at 560.
In Alexander, the Supreme Court focused on evidence of
a multistep process that systematically removed African
Americans from a pool of grand jurors at every step and
produced a highly improbable result. 405 U.S. at 627-28.
The record does not establish that anything of the kind oc-
curred in this case. See id. at 630 (explaining that the Su-
preme Court’s conclusion did “not rest . . . on statistical im-
probability alone”).
Second, any error under Avery and Alexander is not
clear and obvious given this Court’s decision in United
States v. Loving, 41 M.J. 213, 285 (C.A.A.F. 1994). In Lov-
ing, the appellant objected to “inclusion of racial and
3 R.C.M. 912(a) lists information about which trial counsel
and trial defense counsel may ask the members before trial.
R.C.M. 912(a)(1)(C) includes “Race.” Appellant also cites this
rule as possible authority for the convening authority to include
a question about race in the questionnaire given to potential
panel members.
7
United States v. Jeter, No. 22-0065/NA
Judge MAGGS, dissenting
gender identifiers on the lists of nominees” for service on
courts-martial. Id. This Court held that “[w]e will not pre-
sume improper motives from inclusion of racial . . . identi-
fiers on lists of nominees for court-martial duty.” Id. In the
light of this precedent, soliciting the racial identity of the
potential members was not so clearly and obviously con-
trary to Avery and Alexander that the military judge should
have acted on it even though trial defense counsel did not
raise the argument.
In concluding that Appellant has failed to show that any
error was clear and obvious, I do not rely in any way on
Crawford. In that case, the Court held that the convening
authority did not act improperly even though he specifi-
cally selected a court member based on his race. 15 C.M.A.
at 41, 35 C.M.R. at 13 (opinion of Quinn, J.); id. at 49, 35
C.M.R. at 21 (Kilday, J., concurring in the result). Today
the Court concludes that Crawford is no longer good law.
Again, I agree with that decision. But rejecting Crawford
makes no difference to my analysis or my conclusion in the
present case that any error under Avery and Alexander was
not plain and obvious.
B. Appellant’s Argument Based on Batson
Appellant next argues that this Court should evaluate
the convening authority’s selection of members under the
Supreme Court’s decision in Batson v. Kentucky, 476 U.S.
79 (1986). In Batson, the Supreme Court held that a crim-
inal defendant “may establish a prima facie case of pur-
poseful discrimination in selection of the petit jury solely
on evidence concerning the prosecutor’s exercise of peremp-
tory challenges at the defendant’s trial.” Id. at 96. Specifi-
cally, a defendant can make a prima facie case by showing
that (1) “he is a member of a cognizable racial group,” (2)
“the prosecutor has exercised peremptory challenges to re-
move from the venire members of the defendant’s race,”
and (3) “these facts and any other relevant circumstances
raise an inference that the prosecutor used that practice to
exclude the veniremen from the petit jury on account of
their race.” Id. Once the defendant establishes a prima fa-
cie case, the burden shifts to the prosecution to establish
8
United States v. Jeter, No. 22-0065/NA
Judge MAGGS, dissenting
that the peremptory challenge was not exercised for a ra-
cially discriminatory purpose. Id. at 97. The keystone of
Batson was the Supreme Court’s holding that a “defendant
is entitled to rely on the fact . . . that peremptory chal-
lenges constitute a jury selection practice that permits
‘those to discriminate who are of a mind to discriminate.’ ”
Id. at 96 (quoting Avery, 345 U.S. at 562).
Appellant bases his Batson argument on Judge Cox’s
observation that in selecting the members of a court-mar-
tial, the convening authority “has the functional equivalent
of an unlimited number of peremptory challenges.” United
States v. Carter, 25 M.J. 471, 478 (C.M.A. 1988) (Cox, J.,
concurring). The idea is that while the trial counsel has
only one peremptory challenge in the courtroom to exclude
a panel member, R.C.M. 912(g)(1), the convening authority
can effectively exclude an unlimited number of service-
members when issuing a court-martial convening order by
simply not detailing them. Appellant argues that the con-
vening authority’s alleged unlimited peremptory strikes re-
sulted in an all-white court-martial, which establishes a
prima facie case of discrimination under Batson that the
Government failed to rebut. I will assume that Appellant
preserved this argument because trial defense counsel spe-
cifically—although vaguely—mentioned peremptory chal-
lenges in connection with his objection to the selection of
the members before the military judge, and he asked the
military judge to order the convening authority to provide
a race-neutral justification. Appellant also specifically
cited Batson and made a similar argument before the
NMCCA.
In United States v. Bess, 80 M.J. 1 (2020), this Court
heard essentially the same Batson argument that Appel-
lant now makes. The Court in Bess, however, did not pro-
duce a majority opinion on the issue. Two of the three
judges who agreed with the judgment in Bess rejected the
Batson argument, explaining that requiring a convening
authority to provide a race-neutral justification for not in-
cluding certain persons on a court-martial would be an un-
authorized extension of the Batson decision. Id. at 8-9
9
United States v. Jeter, No. 22-0065/NA
Judge MAGGS, dissenting
(opinion of Ryan, J., joined by Stucky, C.J.). These judges
saw no “precedent that would require extending Batson’s
holding outside the context of peremptory challenges” and
noted that “the only extensions of Batson [by the Supreme
Court] have been within the peremptory strike context it-
self.” Id.; see also United States v. Gooch, 69 M.J. 353, 359
(C.A.A.F. 2011) (distinguishing Batson because, unlike in
Batson, there was no evidence of an “improper motive to
pack the member pool or to exclude members based on
race” (internal quotation marks omitted)). As the only
other judge who concurred in the judgment in Bess, I did
not reach the Batson issue. In my view, addressing the is-
sue on the merits was unnecessary in Bess because the rec-
ord did not establish a key predicate for the appellant’s
claim, namely, that all members of the panel were white.
80 M.J. at 14-15 (Maggs, J., concurring in part and concur-
ring in the judgment).
The record in this case differs from the record in Bess.
In Bess, the “military judge made no finding as to the mem-
bers’ races,” explained that “she was uncertain of their
races based on their appearances,” and “refused to infer
their races based on stereotypes.” Id. at 15 n.1. In contrast,
in this case, the military judge stated on the record: “With-
out asking people directly what do [they] consider their
race . . . . [i]t appears that they [are] all white men.” While
some military judges might not have made findings about
race solely based on appearance, neither party has chal-
lenged the military judge’s conclusion in this case as clearly
erroneous. I therefore will assume that Appellant has es-
tablished this factual predicate for his Batson argument.
Reaching the Batson issue now, I agree with Judge
Ryan’s reasoning in Bess. In Batson, the Supreme Court
created a burden-shifting rule that applies to the specific
context of peremptory challenges. The Supreme Court’s
opinion in Batson reveals that this burden-shifting rule is
an application of Avery and Alexander to allegations of dis-
crimination in the courtroom. 476 U.S. at 96-97. For chal-
lenges alleging discrimination outside of the courtroom,
such as an allegation of discrimination by a convening
10
United States v. Jeter, No. 22-0065/NA
Judge MAGGS, dissenting
authority in detailing members to a court-martial, the gen-
eral rules of Avery and Alexander—not Batson—are the
proper framework.
Indeed, the Supreme Court has not extended Batson be-
yond peremptory challenges. Moreover, other federal
courts have expressly declined to extend Batson to closely
related contexts. See, e.g., United States v. Elliott, 89 F.3d
1360, 1364-1365 (8th Cir. 1996) (rejecting the application
of Batson to for-cause challenges); United States v. Black-
man, 66 F.3d 1572, 1575 n.3 (11th Cir. 1995) (same). Ac-
cordingly, while neither Judge Cox nor Appellant is wrong
to observe that the court-martial detailing process is some-
what similar to peremptory challenges, I still see no au-
thority for this Court to extend Batson to a convening au-
thority’s selection of panel members.
The Court reaches a contrary holding, concluding with
little discussion that Batson does apply to a convening au-
thority’s selection of panel members. The Court further
concludes that Appellant has made a prima facie showing
under Batson. But even assuming arguendo that Batson
applies to a convening authority’s detailing decisions be-
cause they are similar to peremptory challenges, I would
conclude that the military judge still did not err in denying
Appellant’s motion challenging the panel. As explained
above, the Supreme Court in Batson instructed that before
finding a prima facie case of discrimination, a court must
consider not only the race of the accused and the use of a
peremptory challenge to excuse a member of the same race
but also whether “any other relevant circumstances raise
an inference that the prosecutor used that practice to ex-
clude the veniremen from the petit jury on account of their
race.” 476 U.S. at 96. The consensus of the federal United
States Courts of Appeals is that this is a “fact-sensitive”
question that “should be reviewed under the familiar clear-
error standard.” United States v. Bergodere, 40 F.3d 512,
11
United States v. Jeter, No. 22-0065/NA
Judge MAGGS, dissenting
516 (1st Cir. 1994). 4 This Court has followed the same ap-
proach, applying the clear error standard to evaluate alle-
gations that a convening authority discriminated based on
race when selecting members of a court-martial. Gooch, 69
M.J. at 359.
In this case, after hearing arguments from trial counsel
and defense counsel, the military judge asked trial defense
counsel if Appellant had any evidence “other than just the
bare makeup of the panel.” Trial defense counsel replied,
“No, sir. That’s all we have.” The military judge then noted
that Appellant’s only evidence was “the fact that [the panel
was] all white men,” and explained that Appellant could
still “put[] on evidence or call[] witnesses.” Trial defense
counsel responded by stating that Appellant would “stand
on [his] motion as it is.”
The military judge then denied Appellant’s motion with
an oral ruling:
The Court is not going to disqualify this entire
panel without ever attempting to seat them. At
this time the Article 25 criteria—age, education,
training, experience, background, judicial temper-
ament—those types of issues are not what’s sup-
posed to be attacked here. The attack here is the
4 See United States v. Casper, 956 F.2d 416, 418 (3d Cir.
1992); United States v. Grandison, 885 F.2d 143, 146 (4th Cir.
1989); United States v. Branch, 989 F.2d 752, 755 (5th Cir. 1993);
United States v. Hall, 20 F.4th 1085, 1097 (6th Cir. 2022); United
States v. Moore, 895 F.2d 484, 485 (8th Cir. 1990); United States
v. Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir. 1994); United States
v. Hill, 643 F.3d 807, 837-38 (11th Cir. 2011); see also Hernandez
v. New York, 500 U.S. 352, 369 (1991) (plurality opinion) (“[W]e
decline to overturn the state trial court’s finding on the issue of
discriminatory intent unless convinced that its determination
was clearly erroneous”); id. at 372 (O’Conner, J., joined by
Scalia, J., concurring in the judgment) (“I agree with the plural-
ity that we review for clear error the trial court’s finding as to
discriminatory intent”); but see United States v. Jordan, 223
F.3d 676, 686 (7th Cir. 2000) (explaining that a de novo standard
of review applies to review of whether the defendant has made a
prima facie case under Batson).
12
United States v. Jeter, No. 22-0065/NA
Judge MAGGS, dissenting
gender and ethnic makeup of this panel based
upon the accused being an African-American
male; the panel lacks the diversity of anything
else other than white men. So without more, . . .
the court just doesn’t have in front of it the evi-
dence to attack . . . each member individually or
their selection in general. . . . [I]f the defense
wants to attack it later maybe based upon what
individuals say how they got here . . . . I will open
it back up . . . but right now I don’t see . . . based
on just the bare allegation alone, the convening
authority acting in a manner to purposely exclude
women or minorities.
(Transcript punctuation edited for clarity.) The military
judge ultimately found that the defense had “provided
nothing in the way of either direct or circumstantial proof
to buttress the naked statistic on which he relie[d].” Ber-
godere, 40 F.3d at 516. Nothing in the record shows that
the military judge’s finding was clearly erroneous. Appel-
lant therefore did not make the showing necessary to es-
tablish a prima facie case under Batson.
C. Appellant’s Argument Based on Castaneda
Appellant’s final argument is that he has established a
prima facie case of racial discrimination by the convening
authority under the Supreme Court’s decision in Cas-
taneda v. Partida, 430 U.S. 482 (1977). In Castaneda, the
Supreme Court announced a three-step test for evaluating
claims alleging that a process for selecting jurors or grand
jurors systematically excludes minorities. Id. at 494-95.
The Supreme Court stated:
The first step is to establish that the group is one
that is a recognizable, distinct class, singled out
for different treatment under the laws, as written
or as applied. Next, the degree of underrepresen-
tation must be proved, by comparing the propor-
tion of the group in the total population to the pro-
portion called to serve as grand jurors, over a
significant period of time. . . . Finally, . . . a selec-
tion procedure that is susceptible of abuse or is not
racially neutral supports the presumption of dis-
crimination raised by the statistical showing.
13
United States v. Jeter, No. 22-0065/NA
Judge MAGGS, dissenting
Id. (citations omitted). Appellant contends that he has sat-
isfied this test because several recent general courts-mar-
tial in the Navy at Norfolk have had no African American
members. 5 Appellant preserved this argument, in my view,
by arguing to the military judge that there had been a “pat-
tern” of all-white panels. He also specifically relied on Cas-
taneda in his briefs before the NMCCA.
In Bess, however, this Court rejected an almost identi-
cal claim. Assuming, without deciding, that the Castaneda
test applies to the selection of members of a court-martial,
the Court reasoned that the appellant in Bess had not pro-
duced statistical evidence covering a “significant period” as
the Supreme Court’s test requires. Bess, 80 M.J. at 9-10
(citation omitted) (internal quotation marks omitted). The
present case is not materially different from Bess. Appel-
lant has cited a few recent cases but has not identified evi-
dence of disproportionate representation over a significant
period. Following Bess, I therefore conclude that Appellant
also has failed to make a prima facie case of purposeful dis-
crimination under Castaneda.
Appellant argues that this Court should reconsider the
assumption in Bess that Castaneda applies the same way
in the military as it does in civilian contexts. He asserts
that “the unique nature of convening authorities’ relatively
short periods of tenure should prompt a departure from
such an extensive time requirement.” But Appellant cites
nothing that would require this Court to apply Castaneda
and in so doing to alter the Castaneda test.
II. The Court’s Discussion of Article 25, UCMJ
In addition to holding that Appellant has shown a
prima facie violation of the Constitution, the Court also
5 Appellant has cited what he considers “four courts-martial
of an African-American accused in which the same Convening
Authority hand-selected all-white panels.” I do not necessarily
agree with his characterization of these cases. For example, one
of the cases that Appellant cites is Bess, and in that case as ex-
plained above, the military judge did not make a finding regard-
ing the races of the panel members.
14
United States v. Jeter, No. 22-0065/NA
Judge MAGGS, dissenting
addresses Article 25, UCMJ. The Court asserts that Article
25, UCMJ, does not permit a convening authority to use
race as a criterion for selecting panel members. I fully
agree with this statement. But in my view, Appellant is not
entitled to relief for a violation of Article 25, UCMJ, be-
cause the record does not establish either a clear error by
the military judge or prejudice to Appellant.
When Appellant raised a challenge under Article 25,
UCMJ, at trial, the military judge rejected it as unsup-
ported by the facts. This Court reviews a military judge’s
findings of fact regarding challenges to member selection
under Article 25, UCMJ, for clear error. United States v.
Riesbeck, 77 M.J. 154, 165 (C.A.A.F. 2018); Gooch, 69 M.J.
at 358-59. With respect to Appellant’s Article 25, UCMJ,
challenge, the military judge specifically ruled:
I don’t see any improper selection using the Arti-
cle 25 criteria. . . .
....
. . . I’m going to stick by my initial ruling that I
don’t see any unlawful Article 25 issue here,
but . . . there is no evidence they are not using the
Article 25 criteria[:] background, education, age,
judicial temperament. Knowing the courts have
routinely said that you can use demographic[s] to
include . . . people, minorities, women, people like
that . . . . And that is not impermissible—
....
. . . But in this case, I still don’t see the systemic
exclusion of those people. I see and understand
your point and it’s noted for the record.
The military judge thus found that the convening authority
had not deviated from the Article 25, UCMJ, criteria and
did not impermissibly exclude minorities. These findings
are not clearly erroneous, and accordingly, I see no basis
for finding an error under Article 25, UCMJ.
In addition, I note that reaching a different conclusion
would violate the principle that “without contrary indica-
tion, ‘the presumption of regularity requires us to presume
15
United States v. Jeter, No. 22-0065/NA
Judge MAGGS, dissenting
that [the convening authority] carried out the duties im-
posed upon him by the Code and the Manual.’ ” Bess, 80
M.J. at 10 (quoting United States v. Wise, 6 C.M.A. 472,
478, 20 C.M.R. 188, 194 (1955)). Because I see no “contrary
indication,” I believe that the presumption of regularity ap-
plies in this case.
Finally, even assuming that an error occurred under Ar-
ticle 25, UCMJ, Appellant has not established prejudice.
An error under Article 25, UCMJ, is a statutory error. The
test for prejudice for a “nonconstitutional error in the ap-
plication of Article 25, UCMJ,” is whether the error “ ‘ma-
terially prejudiced the substantial rights of the accused.’ ”
Gooch, 69 M.J. at 360 (quoting Article 59(a), UCMJ). Ap-
pellant has not provided any grounds for concluding that
the panel that tried him was not “fair and impartial.” Id. at
361. Accordingly, I would hold that Appellant has not car-
ried his burden of showing that any error in soliciting the
racial identity of potential panel members, without more,
caused material prejudice to his substantial rights.
III. Conclusion
For the foregoing reasons, I would affirm the decision of
the United States Navy-Marine Corps Court of Criminal
Appeals.
16