United States v. Hasan

This opinion is subject to revision before publication.
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Nidal M. HASAN, Major
United States Army, Appellant
No. 21-0193
Crim. App. No. 20130781
Argued March 28, 2023—September 6, 2023
Military Judges: Gregory A. Gross and Tara A. Osborn
For Appellant: Major Bryan A. Osterhage and Jona-
than F. Potter, Esq. (argued); Colonel Michael C.
Friess, Major Christian E. DeLuke, Captain Carol K.
Rim, and Captain Andrew R. Britt (on brief); Cap-
tain Roman W. Griffith.
For Appellee: Major Jennifer A. Sundook and Cap-
tain Timothy R. Emmons (argued); Colonel Christo-
pher B. Burgess, Lieutenant Colonel Jacqueline J.
DeGaine, Captain Anthony J. Scarpati, and Captain
A. Benjamin Spencer (on brief); Lieutenant Colonel
Craig J. Schapira, Major Dustin L. Morgan, and
Captain Karey B. Marren.
Chief Judge OHLSON delivered the opinion of the
Court, in which Judge SPARKS, Judge MAGGS,
Judge HARDY, and Judge JOHNSON joined.
_______________
United States v. Hasan, No. 21-0193/AR
Opinion of the Court
Chief Judge OHLSON delivered the opinion of the
Court.
Overview of the Case
In the early afternoon of November 5, 2009, Appellant,
an Army psychiatrist, walked into the crowded Soldier
Readiness Processing (SRP) center at Fort Hood, Texas.1
He suddenly opened fire with a semiautomatic handgun
equipped with two laser sights, killing thirteen people and
wounding thirty-one others.2 He was only stopped when
law enforcement officers confronted him outside the build-
ing and shot him. As a result of being shot, Appellant is
now paralyzed from the waist down and is permanently
confined to a wheelchair.
The evidence adduced at trial indicates that in the
months leading up to November 5, Appellant carefully
planned and prepared for his attack. In late-July 2009, he
visited an off-post gun shop and asked the salesperson,
“What is the most technologically advanced handgun on
the market?” The salesperson recommended a Fabrique
Nationale (FN) 5.7, and he confirmed that this handgun
model had a high magazine capacity. The salesperson also
informed Appellant of the extensive damage a high velocity
bullet fired by the FN 5.7 would cause after impacting the
human body. Appellant purchased the recommended
weapon, along with magazine extension kits to increase the
firing capacity to thirty rounds per magazine. He also pur-
chased laser sights and had them mounted on the weapon.
Appellant became a regular customer at the gun store,
1 On May 9, 2023, Fort Hood was renamed
Fort Cavazos. See Fort Cavazos Redesignation,
https://home.army.mil/cavazos/about/fort-cavazos-redesignation
(last visited August 17, 2023). However, to maintain consistency
with the briefs and case history, we will continue to refer to the
site of the attack as Fort Hood.
2 Appellant shot thirty-one individuals but was charged with
thirty-two specifications of attempted premeditated murder be-
cause he exchanged gunfire with Officer MT—a civilian police
officer—who was not shot during the attack.
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Opinion of the Court
returning to buy boxes of ammunition and additional mag-
azines with extension kits.
In October 2009, Appellant began target practice with
his FN 5.7 at a local shooting range. He became proficient
at hitting targets in the center of mass or in the head at a
distance of 100 yards. On one such occasion, Appellant ob-
tained guidance from the firearms instructor on how to
practice “speed loading” of the weapon. Also in October, Ap-
pellant was informed by his superior that he was selected
to deploy to Afghanistan the following month and that he
was required to process through the SRP center prior to his
deployment. As noted by the United States Army Court of
Criminal Appeals (ACCA) in its opinion, “Appellant ex-
pressed to a co-worker his reluctance to deploy and stated,
‘They’ve got another thing coming if they think they are
going to deploy me.’ ” United States v. Hasan, 80 M.J. 682,
692 (A. Ct. Crim. App. 2020) (en banc).
Appellant visited the SRP center between seven and
nine times in the two weeks prior to the attack. A service-
member who witnessed these unscheduled visits to the
SRP center testified that they “didn’t have a purpose,” and
he reminded Appellant that he was not supposed to return
to the SRP center until the completion of his physical.
In the early afternoon of November 5, 2009, Appellant,
concealing his FN 5.7 and nearly 400 rounds of ammuni-
tion, entered the SRP center. Numerous soldiers were in-
side the building. Most of them were either waiting to meet
with medical personnel, who were located in cubicles, to see
if they were medically cleared to deploy or, for those sol-
diers returning from deployment, to discuss any medical
concerns. Unprompted, Appellant walked up to a civilian
data-entry clerk, telling her that she was needed else-
where. As soon as the clerk departed the area Appellant
pulled out his FN 5.7 handgun, yelled “Allahu Akbar!” and
began shooting at his fellow soldiers using speed reloading
techniques. From his initial position Appellant was able to
view the two exits from the building. A witness testified
that Appellant was “firing at soldiers running out the front
door. He was firing at soldiers running out the back door.”
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As soldiers tried to take cover in and around the cubi-
cles, Appellant walked across the facility shooting several
soldiers in the back as they tried to exit the building. An-
other witness described the scene:
I [was] just watching him shoot and at this time
the room was filled with gun smoke and I see the
weapon that he had, had a green light and a red
laser and it’s going through the haze and the gun-
fire just continued to go off. . . . [H]e just kind of
just walked back and forth and was just shooting
us for what felt like an eternity.
Eventually Appellant left the SRP center to pursue fleeing
soldiers. He then tried to enter another building but the
door was locked. When law enforcement officers arrived,
they located Appellant outside the SRP center building.
Appellant refused an order to drop his weapon and a gun-
fight ensued, resulting in a law enforcement officer being
shot multiple times. Appellant stood over the wounded of-
ficer and attempted to shoot her again at point-blank range
but his weapon malfunctioned. Appellant was then shot in
the chest by another law enforcement officer and taken into
custody.
On July 6, 2011, the convening authority referred the
charges against Appellant to a general court-martial as a
capital case. Nearly two years later—and two months be-
fore the start of trial—Appellant elected to represent him-
self during the proceedings. However, standby counsel
were present and were prepared to provide assistance if
Appellant requested it.
At trial before a panel of officer members sitting as a
general court-martial, Appellant made an opening state-
ment in which he immediately acknowledged the following:
The evidence will clearly show I am the
shooter. . . .
....
But the evidence presented during this trial
will only show one side. The evidence will show
also show [sic] that I was on the wrong side [of]
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America’s war on Islam. But then I switched sides,
and I made mistakes.
Appellant also informed the panel members during his
opening statement that he was “an imperfect Muslim[]
trying to establish the perfect religion of Almighty God, as
supreme on the land despite the disbeliever’s hatred for it,”
and he “apologize[d] for any mistakes [he] made in this
endeavor.”
Following opening statements the prosecution elicited
multiple days of witness testimony on the merits. However,
Appellant did not put on a case-in-chief. He also did not
make a closing argument. After this trial on the merits, the
panel convicted Appellant of thirteen specifications of pre-
meditated murder, and thirty-two specifications of at-
tempted premeditated murder in violation, respectively, of
Articles 118 and 80, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. §§ 918, 880 (2006).
The sentencing phase of the trial lasted four days.
Again, although the Government put on a sentencing case,
Appellant rested his case without putting on any witness
testimony or making any sentencing argument. The panel
sentenced Appellant to death, dismissal from the service,
and forfeiture of all pay and allowances.
With regard to the submission of clemency matters, Ap-
pellant was initially represented by counsel but he ulti-
mately elected to proceed pro se. Upon consideration of Ap-
pellant’s submission, the convening authority approved the
adjudged sentence.
Appellant has been represented by counsel during his
appeals. The lower appellate court—ACCA—affirmed the
findings and sentence. Hasan, 80 M.J. at 721. That court
later denied Appellant’s motion for reconsideration. Hasan
v. United States, No. ARMY 20130781, 2021 CCA LEXIS
114, at *1 (A. Ct. Crim. App. Mar. 15, 2021) (en banc) (or-
der) (unpublished).
Because Appellant’s affirmed sentence includes death,
his case is now before this Court for mandatory review. Ar-
ticle 67(a)(1), UCMJ, 10 U.S.C. § 867(a)(1) (2012).
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Appellant assigns forty-nine issues—eleven briefed and
thirty-eight unbriefed—and personally asserts another is-
sue pursuant to United States v. Grostefon, 12 M.J. 431(C.M.A. 1982). Via these issues, he is seeking to reverse the
findings and sentence in this case or, in some instances, to
obtain other relief. However, after carefully considering his
raised issues and the record, we conclude that Appellant is
not entitled to any relief. We therefore affirm the judgment
of the lower court. We now turn to the issues in their pre-
sented order.
Issue I: Whether the Military Judge Erred in
Allowing Appellant to Represent Himself Because
Appellant’s Waiver of Counsel Was Not Voluntary
or Knowing and Intelligent
Appellant argues that his waiver of counsel and
decision to proceed pro se was involuntary—and therefore
invalid under the Sixth Amendment—because he was
confronted by a “constitutionally repugnant choice: go to
trial with counsel who were diametrically opposed to his
fundamental objective or go alone.” Brief for Appellant
(Final Copy) at 40, United States v. Hasan, No. 21-0193
(C.A.A.F. May 5, 2022) [hereinafter Appellant’s Brief]. We
conclude that the facts and the law do not support
Appellant’s contention.
I. Background
When Appellant was arraigned in July 2011, he was
represented by three military defense counsel: Lieutenant
Colonel (LTC) KP, Major (MAJ) CM, and Captain (CPT)
JO. Early in the pretrial stage of his court-martial, Appel-
lant released CPT JO, who was replaced by MAJ JM. This
team of counsel represented Appellant through more than
twenty pretrial sessions.
As trial approached, however, an apparent divergence
of views emerged between the preferred trial strategies of
Appellant and his counsel. On May 17, 2013, Appellant’s
defense team presented him with a memorandum explain-
ing their intended trial strategy. The memorandum stated
that the defense team intended to argue that Appellant did
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Opinion of the Court
not have a “premeditated design to kill” at the time he com-
mitted the shootings. Specifically, Appellant’s defense
team told him that they intended to show that he had been:
so affected by religious passion that [he] could not
or did not consider the consequences of the act
with a cool mind. In other words, [he was] so eager
to get right with God, so afraid of the Hellfire for
both [himself] and [his] parents, and so convinced
that [he] had to do something drastic to please
God, that [he] believed [he was] taking the right
action.
In other words, counsel wanted to try to demonstrate at
trial that Appellant was “so consumed by religious passion
that [he] believed that if an act pleased God, there was no
real choice about whether to do the act,” and thus Appel-
lant lacked premeditation in regard to his offenses.
Instead of agreeing to pursue this “religious passion”
theory, Appellant wanted to pursue a strategy that would
attempt to establish that his attack on his fellow soldiers
was justified. Specifically, he desired to argue that because
the war in Afghanistan was illegal, by shooting U.S. sol-
diers preparing to deploy to that country he was actually
acting in the defense of others—that is, protecting mem-
bers of the Taliban such as its leader, Mullah Omar, from
imminent harm at the hands of U.S. soldiers. Appellant
and his military defense counsel had previously discussed
such a strategy. However, after researching the issue, his
counsel advised Appellant that this theory did not consti-
tute a legally viable defense under the facts of the case.
After reviewing the memorandum and enclosures pre-
sented to him, Appellant wrote at the bottom of the memo-
randum, in pertinent part: “Based on these documents as
well as discussions with [LTC KP] I deem it necessary to
represent my self [sic].” The same day, Appellant filed a
notice with the court that he wanted to waive counsel and
proceed pro se.
At the next Article 39(a), UCMJ, 10 U.S.C. §839(a)
(2012 ed.), session, the military judge engaged in a colloquy
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Opinion of the Court
with Appellant to discuss his request. As summarized by
the lower court, the military judge:
established [A]ppellant had discussed the request
with his counsel prior to signing it. She then re-
advised [A]ppellant of his right to counsel, to in-
clude his right to request individual military
counsel (IMC)[3] or hire civilian counsel at his own
expense. Appellant indicated he understood his
right to counsel and still no longer wished to be
represented by his three military counsel or any
other attorney.
Hasan, 80 M.J. at 694.
After discussing with Appellant his physical and mental
condition vis-à-vis representing himself, the military judge
ordered the Government to have him medically examined.
At a subsequent session of court, the military judge re-
ceived the report and testimony of the physician who ex-
amined Appellant. The military judge also conducted an
extended discussion with Appellant about his wish to pro-
ceed pro se, which is typically known as a “Faretta collo-
quy.” Faretta v. California, 422 U.S. 806 (1975). As sum-
marized by the ACCA:
Throughout the colloquy, [A]ppellant consist-
ently indicated he understood the military judge,
that he understood the risks and limitations, and
that he wanted to proceed with his self-represen-
tation. He affirmed his belief that he was physi-
cally and mentally capable to review the evidence
and prepare for trial, and he stated he was confi-
dent he would be ready to proceed to trial. Appel-
lant affirmed his decision was not the result of any
threats or force and was made of his own free will.
Moreover, [A]ppellant expressed a willingness to
maintain LTC KP, MAJ CM, and MAJ JM as his
standby counsel throughout the trial, so they
3 “Individual military counsel” is a military counsel of an ac-
cused’s own selection if that counsel is “reasonably available” as
determined under regulations prescribed by the Secretary of the
military department in which the accused serves. Article
38(b)(3)(B), (b)(7), UCMJ, 10 U.S.C. § 838(b)(3)(B), (b)(7) (2006).
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could assist him with legal research and provide
advice as needed or requested.
Hasan, 80 M.J. at 696.
The following brief excerpts from the lengthy exchange
between the military judge and Appellant provide addi-
tional insights:
MJ: . . . . Do you understand that you would be
better off with a trained lawyer who is familiar
and knows all the procedures, the Rules of Evi-
dence, the Military Rules of Evidence, the Rules
for Courts-Martial and the Rules of Law than you
would be representing yourself?
ACC: I understand.
MJ: Basically what I’m telling you, Major Hasan,
as a general rule, representing yourself is not a
good policy.
ACC: You’ve made that quite clear.
....
MJ: I’m going to advise you again, Major Hasan, I
know you said earlier that I’ve made this perfectly
clear, but I’m going to repeat it again. I think it’s
unwise for you to represent yourself. I think it’s
an unwise decision and I strongly urge you not to
represent yourself. But knowing all that I’ve told
you, do you still want to act as your own lawyer?
ACC: Yes, ma’am.
Ultimately, the military judge was satisfied with Appel-
lant’s responses during the colloquy and, in conjunction
with her review of Appellant’s medical examination as well
as Appellant’s Rule for Courts-Martial (R.C.M.) 706 sanity
board report, found that Appellant’s waiver of counsel was
knowing, intelligent, and voluntary. She therefore ap-
proved his request to proceed pro se. However, the military
judge appointed his defense team to serve as standby coun-
sel, as reflected in the following passage from the record of
trial:
MJ: . . . . All three of the currently detailed coun-
sel . . . will remain as standby counsel, with [two
of the lawyers] remaining at counsel table, and
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Opinion of the Court
[one of the lawyers] remaining in the spectator
gallery. Standby counsel will be noticed in all com-
munications to and from the court. They will at-
tend all proceedings and will be available to Major
Hasan for consultation and advice.
Counsel may provide you, Major Hasan, with ad-
vice and procedural instructions. They will not do
anything without your agreement. However, they
are available to act as your lawyer or assist you at
any time. At any time during the trial you feel
that you could benefit from advice and you want
to take a break to talk to your counsel about some-
thing[,] let me know and I will permit it. Do you
understand that?
ACC: I do.
On July 2, 2013, after the military judge entered not
guilty pleas on behalf of Appellant, she sought clarification
on the record about whether Appellant still wanted to rep-
resent himself because Appellant had mentioned the possi-
bility of retaining a civilian attorney. In response to inquir-
ies from the military judge, Appellant eventually stated, “I
want to proceed pro se,” but he also sought to reserve the
right to retain civilian counsel “if after talking to [that
counsel], something fruitful evolves.”
At the next session of court on July 9, 2013, Appellant
stated that he met with civilian counsel and if the court
allowed him to pursue the “defense of others” defense, he
would elect to be represented by that civilian attorney. The
military judge stated: “The court’s ruling is that the de-
fense of others [defense] fails as a matter of law. Under-
standing that, do you still wish to proceed pro se?” Appel-
lant responded, “Yes, I do.”
Prior to the sentencing phase of his trial, the military
judge engaged in the following colloquy with Appellant:
MJ: Do you still wish to proceed pro se, Major Ha-
san, knowing everything that I’ve told you
throughout the trial about the dangers and disad-
vantages of self-representation; the nature of the
proceedings at this stage of the trial; and the pos-
sible punishments you face?
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ACC: I do.
MJ: Do you understand, as I told you on Friday,
that this is the stage of the trial where the panel
decides whether you should live, or whether you
should die?
Do you understand that?
ACC: I understand.
MJ: And you understand that you’re staking your
life on the decisions that you make?
ACC: I do.
MJ: Is that a free and voluntary choice by you?
ACC: It is.
MJ: Again, I think it is unwise for you to represent
yourself, but that is your choice, and you’re com-
petent to make that choice. Is that a free and vol-
untary choice on your part?
ACC: It is.
After this colloquy, the military judge “affirm[ed on the
record her] previous findings—the accused may continue to
represent himself pro se.”
On appeal, Appellant argues that his “choice to proceed
pro se was no choice at all,” so the “waiver of counsel was
involuntary.” Appellant’s Brief at 4, 48. Appellant asserts
that he only elected to proceed pro se because his counsel
intended to put on a defense that would have conceded
guilt whereas he wanted to maintain his innocence by
asserting the “defense of others” defense. Specifically, he
contends that his “defense team . . . intend[ed] to attack
premeditation by relying on ‘religious fervor,’ ” a defense
which “contradicted [A]ppellant’s deeply held religious
beliefs.” Id. at 49. In Appellant’s view, his trial defense
team’s insistence on pursuing their preferred trial strategy
over his objection offered “a constitutionally repugnant
choice” and infringed on his “constitutionally ‘protected
autonomy right’ to control the objectives of his defense.” Id.
at 40, 43 (quoting McCoy v. Louisiana, 138 S. Ct. 1500,
1511 (2018)). As a result, he avers that his waiver of
counsel was not truly voluntary but rather the result of “an
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impasse with his detailed counsel.” Id. at 50. Appellant also
contends that the military judge failed to perform her
“duty . . . to inquire into [A]ppellant’s dissatisfaction with
counsel before accepting [A]ppellant’s waiver” when the
conflict between Appellant and his standby counsel became
apparent. Id.
Arguing that Appellant made a knowing, voluntary and
intelligent waiver of counsel, the Government claims that
“Appellant’s argument is built upon . . . a faulty premise”
that he wanted to maintain his innocence. Brief for Appel-
lee at 23, United States v. Hasan, No. 21-0193, (C.A.A.F.
Oct. 20, 2022) [hereinafter Appellee’s Brief]. According to
the Government, both Appellant’s “defense of others” claim
(which the military judge rejected as a matter of law) and
trial defense counsel’s religious fervor strategy entailed ad-
mitting that Appellant committed the shooting at Fort
Hood. Therefore, the Government contends, rather than
differing about fundamental objectives, Appellant and his
counsel merely “differed in strategy: Appellant wanted to
argue that the killing was justified, and his detailed coun-
sel wanted to attack one of the elements of the offense,
namely premeditation.” Id. at 24.
The Government also finds it significant that at trial
“Appellant did not clearly and vociferously object to his de-
tailed counsel’s planned defense,” and thus did not state on
the record that counsel’s strategy violated his religious be-
liefs. Id. at 26. The Government further argues that “Ap-
pellant did not have good cause to substitute counsel be-
cause his detailed counsel were well-prepared and
competent,” and even substitute counsel “would not have
given Appellant what he wanted: to present a defense that
the military judge already ruled could not be presented.”
Id. at 28. The Government’s final point is that the military
judge had sufficient information to conclude Appellant’s
waiver of counsel was voluntary.
II. Standard of Review
We review de novo whether an accused voluntarily
waived his right to counsel. See United States v. Rosenthal,
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62 M.J. 261, 262 (C.A.A.F. 2005) (per curiam) (Whether a
waiver of a right was “knowing and intelligent” is “a ques-
tion of law [assessed] under a de novo standard of review.”);
see also United States v. Schaefer, 13 F.4th 875, 886 (9th
Cir. 2021) (“Whether a defendant knowingly and voluntar-
ily waives his Sixth Amendment right to counsel is a mixed
question of law and fact reviewed de novo.” (citation omit-
ted) (internal quotation marks omitted)).
III. Applicable Law
A. The Sixth Amendment Right to Counsel
The Sixth Amendment provides, in relevant part, that
“[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to have the Assistance of Counsel for his defence.”
U.S. Const. amend VI. “That right includes the right to
waive counsel and to represent oneself.” United States v.
Roof, 10 F.4th 314, 351 (4th Cir. 2021) (citing Faretta, 422
U.S. at 834-36). When an accused is represented by coun-
sel, “a defendant has the right to insist that counsel refrain
from admitting guilt.” McCoy, 138 S. Ct. at 1505.
“[I]t is the defendant’s prerogative, not counsel’s, to de-
cide on the objective of his defense . . . .” Id. However, deci-
sions such as “what arguments to pursue, what evidentiary
objections to raise, and what agreements to conclude re-
garding the admission of evidence,” and every other deci-
sion properly considered to be “[t]rial management” are left
to counsel. Id. at 1508 (internal quotation marks omitted)
(quoting Gonzalez v. United States, 553 U.S. 242, 248
(2008)). Included within counsel’s purview is resolving a
“strategic dispute[] about whether to concede an element of
a charged offense.” Id. at 1510. “Some decisions, however,
are reserved for the client—notably, whether to plead
guilty, waive the right to a jury trial, testify in one’s own
behalf, and forgo an appeal.” Id. at 1508. “Autonomy to de-
cide . . . the objective of the defense . . . belongs in this lat-
ter category.” Id.
B. Voluntary Waiver of Counsel
“While the Constitution does not force a lawyer upon a
defendant, it does require that any waiver of the right to
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counsel be knowing, voluntary, and intelligent.” Iowa v. To-
var, 541 U.S. 77, 87-88 (2004) (citations omitted) (internal
quotation marks omitted). “The [military’s] current stand-
ards regarding the right of self-representation based on
Faretta . . . are set forth in RCM 506(d) . . . .” United States
v. Mix, 35 M.J. 283, 285 (C.M.A. 1992). This rule provides:
The accused may expressly waive the right to be
represented by counsel and may thereafter
conduct the defense personally. Such waiver shall
be accepted by the military judge only if the
military judge finds that the accused is competent
to understand the disadvantages of self-
representation and that the waiver is voluntary
and understanding. The military judge may
require that a defense counsel remain present
even if the accused waives counsel and conducts
the defense personally. The right of the accused to
conduct the defense personally may be revoked if
the accused is disruptive or fails to follow basic
rules of decorum and procedure.
R.C.M. 506(d) (2008 ed.) (emphasis added).
To find a valid waiver of counsel, the Supreme Court
requires that the accused “voluntarily exercise[d] his
informed free will.” Faretta, 422 U.S. at 835. Our precedent
provides little guidance on how to determine whether an
accused’s choice to represent himself was voluntary, but
the federal circuit courts have addressed this issue in some
detail. “[T]he voluntariness of a waiver is measured by
reference to the surrounding circumstances.” Pouncy v.
Palmer, 846 F.3d 144, 161 (6th Cir. 2017). Thus, the focus
is often on “mistreatment or coercion of the [accused],” i.e.,
whether the accused was “forced, threatened, or pressured
into waiving his right to counsel.” United States v. Owen,
963 F.3d 1040, 1049, 1051 (11th Cir. 2020); Wilkins v.
Bowersox, 145 F.3d 1006, 1012 (8th Cir. 1998) (“a finding
of coercion bears upon the voluntary aspect of the waiver”);
see also Moran v. Burbine, 475 U.S. 412, 421 (1986)
(indicating a waiver, in the context of Miranda4 warnings,
4 Miranda v. Arizona, 384 U.S. 436 (1966).
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is “voluntary in the sense that it was the product of a free
and deliberate choice rather than intimidation, coercion, or
deception”).
Aside from this traditional concern, the United States
Courts of Appeals have further stated that “the ‘Hobson’s
choice’ between proceeding to trial with an unprepared
counsel or no counsel at all may violate the right to counsel”
because that is no choice at all. United States v. Washing-
ton, 596 F.3d 926, 938 (8th Cir. 2010); see also Pouncy, 846
F.3d at 161; United States v. Padilla, 819 F.2d 952, 955
(10th Cir. 1987) (“A defendant forced to choose between in-
competent or unprepared counsel and appearing pro se
faces a dilemma of constitutional magnitude.” (citation
omitted) (internal quotations marks omitted)). In contrast,
a simple disagreement with counsel about “a certain line of
defense” is not enough to establish involuntary waiver of
counsel. Sanchez v. Mondragon, 858 F.2d 1462, 1466 (10th
Cir. 1988).
IV. Discussion
Despite his phrasing of this issue, Appellant does not
actually challenge the knowing or intelligent nature of his
waiver of counsel. We therefore focus on the voluntariness
of Appellant’s waiver. And for the reasons cited below, we
conclude that Appellant voluntarily waived his right to
counsel and validly elected to proceed pro se.
We preliminarily note that the typical hallmarks of a
voluntary waiver of counsel are present here. In the collo-
quy with the military judge, Appellant affirmed that his
decision was not the result of any threats or force and was
made of his own free will. Further, there is nothing in the
record indicating that threats, coercion, or physical or psy-
chological force were involved. Moreover, Appellant did not
seek to replace members of the last iteration of his defense
team but instead simply “moved to represent himself with-
out complaining to the court that his . . . counsel was in-
competent, unprepared, or otherwise unable to provide ad-
equate representation.” United States v. Patterson, 140
15
United States v. Hasan, No. 21-0193/AR
Opinion of the Court
F.3d 767, 776 (8th Cir. 1998). And finally, Appellant signed
a document waiving his right to counsel.
But Appellant cites to a different concern. The starting
premise of Appellant’s involuntary waiver claim before this
Court is that if trial defense counsel had continued to rep-
resent him, “there would have been a clear constitutional
violation under McCoy.” Appellant’s Brief at 48. Specifi-
cally, he argues as follows: “Appellant’s waiver of counsel
was not voluntary. Going into trial, he desired to maintain
his innocence. By contrast, his defense team sought to ad-
mit his guilt.” Id. at 40. But Appellant’s premise is flawed
and his reliance on McCoy is misplaced.
To begin with, Appellant’s claim that at trial he “desired
to maintain his innocence,” id., is belied by the record.
While Appellant initially might have wanted to maintain
his innocence by pursuing a “defense of others” defense, the
military judge prohibited him from pursuing that strategy,
finding it failed as a matter of law. After that ruling,
Appellant made no effort to assert his innocence.5 Instead,
with full knowledge that the military judge had ruled that
the “defense of others” defense failed, he still openly
admitted that he was the shooter. Indeed, at the very
beginning of his opening statement to the panel members,
Appellant flatly declared: “The evidence will clearly show
5 Appellant argues that after “his pleas [of guilty] were re-
fused and he was compelled into a contested trial, he resolved to
maintain his innocence.” Reply Brief on Behalf of Appellant at
1, United States v. Hasan, No. 21˗0193 (C.A.A.F. Jan. 3, 2023)
(footnote omitted) [hereinafter Reply Brief]. He also challenges
the Government’s argument that he did not want to maintain
his innocence and instead wanted only to pursue a meritless “de-
fense of others” claim as a “false distinction.” Id. at 2. As a gen-
eral matter, we agree that there is no legal distinction between
one who is factually innocent because he did not commit the ac-
tus reus of a crime and one who has a valid justification for com-
mitting what would otherwise be a criminal act. However, that
distinction is not applicable in this case where, under the facts
and circumstances, Appellant’s claim of justification (defense of
others) failed as a matter of law. See infra issue raised pursuant
to Grostefon.
16
United States v. Hasan, No. 21-0193/AR
Opinion of the Court
that I am the shooter.” Then, after making this damning
confession, Appellant made no discernible effort to justify
or explain the shootings or to otherwise absolve himself of
guilt. For example, with limited exceptions, Appellant did
not cross-examine prosecution witnesses; he did not put on
a case-in-chief; and he waived closing argument. As can be
seen then, Appellant’s actions at trial undermine his
argument on appeal that he “desired to maintain his
innocence.” Id. at 40, 48.
Next, the facts in McCoy are distinguishable from the
instant case. In McCoy, the defendant wanted to argue that
he was not the person who killed his family. 138 S. Ct. at
1506. His counsel, on the other hand, wanted to argue that
the defendant did indeed kill his family but that he lacked
the criminal intent to be convicted of first-degree murder.
Id. at 1506 n.1. The Supreme Court held that McCoy’s rep-
resentation by counsel who wanted to pursue a strategy ad-
mitting the killings violated his constitutionally “protected
autonomy right,” noting that a defendant “may wish to
avoid, above all else, the opprobrium that comes with ad-
mitting” to killing someone. Id. at 1508, 1511. But as
demonstrated above, in the instant case Appellant had no
compunction about admitting that he had shot his fellow
soldiers on November 5, 2009. As noted by the Government
in its brief, “This case does not present an instance, as was
present in McCoy, where the appellant desired to deny that
he committed the charged acts. . . . Both Appellant and his
defense counsel wanted to mount their defenses by admit-
ting that Appellant committed the November 5, 2009
shooting.” Appellee’s Brief at 24.
Moreover, the Supreme Court’s broader holding in
McCoy that “a defendant has the right to insist that counsel
refrain from admitting guilt, even when counsel’s
experience-based view is that confessing guilt offers the
defendant the best chance to avoid the death penalty,”
138 S. Ct. at 1505, is inapplicable to the instant case. As
discussed at greater length infra in Issue IV, neither
Appellant nor his trial team were legally empowered to
plead guilty in this case.
17
United States v. Hasan, No. 21-0193/AR
Opinion of the Court
And finally, upon close inspection Appellant’s argument
fails when he asserts that he faced “ ‘a Hobson’s choice’ ”
when he was forced to decide between accepting his coun-
sel’s objectionable defense strategy or proceeding pro se.
Appellant’s Brief at 47 (citation omitted). In support of his
position, Appellant states that his trial team’s “planned de-
fense” would have gone against Appellant’s wishes by “con-
tradict[ing A]ppellant’s deeply held religious beliefs” and
“paint[ing him] as a religious fanatic.” Id. at 49. However,
after he informed the trial court of his intent to waive coun-
sel and represent himself, the military judge engaged in
the following exchange with Appellant:
MJ: Have you tried to talk to any other lawyer
about your case?
ACC: No.
MJ: Would you like to talk to another lawyer
about this case?
ACC: Not at this point. I would like to reserve the
option to have feedback from another lawyer if I
choose so, but not at this point.
MJ: At this point you don’t wish to talk to another
lawyer about this case?
ACC: That’s correct.
MJ: Do you wish to talk to another lawyer about
this colloquy that we’re having now about repre-
senting yourself?
ACC: No, ma’am.
MJ: Have you understood everything that I’ve told
you and everything that I’ve asked you?
ACC: Yes, ma’am.
This exchange demonstrates that Appellant’s waiver
was not exclusively linked to his trial defense team’s legal
abilities, preparedness, or religious fervor defense because
Appellant denied interest in having any counsel represent
him or talking to any counsel about his case.6 Simply
6 Because we conclude that Appellant’s waiver of counsel was
not exclusively tied to his disapproval of his trial defense
18
United States v. Hasan, No. 21-0193/AR
Opinion of the Court
stated, by rejecting the military judge’s offer to explore ob-
taining new counsel, Appellant foreclosed his ability to suc-
cessfully argue on appeal that he was confronted with “a
constitutionally repugnant choice: go to trial with counsel
who were diametrically opposed to his fundamental objec-
tive or go alone.” Id. at 40.
Similarly, in arguing against the voluntariness of his
waiver of counsel, Appellant’s contention that the military
judge failed in her duty “to inquire into [A]ppellant’s dis-
satisfaction with counsel before accepting [A]ppellant’s
waiver” misses the mark.7 Id. at 50. It is true that the mil-
itary judge disclaimed any interest in wanting to know why
Appellant was dissatisfied with counsel. (“I don’t want to
know why you don’t want to be represented by your counsel
anymore, but is that a strategic decision on your part?”)
However, the Supreme Court and this Court have not
“specif[ied] what procedural undertakings [are] necessary
to satisfy” whether an accused has waived counsel. Mix, 35
M.J. at 286. In Tovar, the Supreme Court, while discussing
the related issue of whether waiver of counsel was intelli-
gent, enunciated: “We have not . . . prescribed any formula
counsel’s religious fervor defense and because he disclaimed
wanting any counsel, we reject his argument that the military
judge was required to appoint substitute counsel.
7 Appellant identifies the following events as creating a duty
on the part of the military judge to inquire further into dissatis-
faction with counsel: (1) the precipitating circumstances that led
to Appellant’s dissatisfaction with counsel before accepting Ap-
pellant’s waiver; (2) the facts that led counsel to defy court or-
ders to provide assistance; (3) when counsel “declared [A]ppel-
lant was working in concert with [the] prosecution”; and (4)
when Appellant “clearly vacillated on his pro se status” on the
eve of trial. Appellant’s Brief at 50. But since we find no duty to
inquire in the first place, the military judge was not required to
reopen the colloquy. See United States v. Hantzis, 625 F.3d 575,
580-81 & n.2 (9th Cir. 2010) (citing cases for the proposition that
“no federal appellate court has held that renewed Faretta warn-
ings are required at each subsequent court proceeding”).
19
United States v. Hasan, No. 21-0193/AR
Opinion of the Court
or script to be read to a defendant who states that he elects
to proceed without counsel.” 541 U.S. at 88.
This Court has previously recognized that the federal
circuit courts “are split as to the exact extent of the inquiry
necessary to ensure” waiver of counsel by the trial judge
and has declined to identify “what type of inquiry is re-
quired.” Mix, 35 M.J. at 286. In Mix, we were satisfied that
the military judge conducted the appropriate waiver in-
quiry to determine that the accused’s waiver of counsel was
knowing, intelligent, and voluntary because the military
judge advised appellant “on several occasions of the bene-
fits of a lawyer and the disadvantages of representing one-
self.” Id. This Court proposed questions to ask an accused
in future cases, id. at 286, 289-90, and indeed those ques-
tions were incorporated into the Military Judges’ Bench-
book, see Dep’t of the Army, Pam. 27-9, Legal Services, ch.
2 § 2–7–2 (Jan. 1, 2010). Notably, military case law and the
Benchbook do not direct the military judge to inquire about
the nature of the dissatisfaction with counsel. See id.
Therefore, under military law, the military judge did not
have a duty to inquire into the reasons behind Appellant’s
dissatisfaction with counsel.
Appellant identifies cases from the United States
Courts of Appeals for the Third and Tenth Circuits that
seemingly do impose such a duty.8 See, e.g., United States
v. Peppers, 302 F.3d 120, 132 (3d Cir. 2002); Sanchez, 858
F.2d at 1466. But notably, Appellant has not identified any
other federal circuit courts that have adopted this position.
Our independent research has identified two more circuits
that also have ostensibly imposed such a duty. United
States v. Wright, 923 F.3d 183, 188-89 (D.C. Cir. 2019);
United States v. Seale, 461 F.2d 345, 359 (7th Cir. 1972).
However, we are not required to follow these circuit courts
on this point. See United States v. Tovarchavez, 78 M.J.
8 Appellant does cite a United States Court of Appeals for the
Ninth Circuit case as well—Garcia v. Bunnell, 33 F.3d 1193,
1199 (9th Cir. 1994)—but that case was about conflicts of inter-
est, not conflicts of strategy or trial objectives.
20
United States v. Hasan, No. 21-0193/AR
Opinion of the Court
458, 466 (C.A.A.F. 2019) (acknowledging this Court can
give “persuasive weight to the decisions of the federal cir-
cuit courts of appeal” (emphasis added)). And as we ex-
plained above, the Supreme Court and military law have
not imposed a duty in a Faretta colloquy to inquire into any
disagreement between an accused and his counsel. Accord-
ingly, given Appellant’s unwavering position on self-repre-
sentation and in light of the other points raised above, the
military judge did not need to inquire further into why Ap-
pellant wished to proceed pro se.
The circumstances of this case demonstrate that Appel-
lant “voluntarily elected to [represent himself] in order to
pursue his own unique vision of how the case should be de-
fended.” United States v. Volpentesta, 727 F.3d 666, 676
(7th Cir. 2013). We thus “reject his current efforts to char-
acterize as ‘involuntary’ a choice that was entirely of his
own making.” Id.Issue II: Whether the Total Closure of the Court
over Appellant’s Objection Violated His
Right to a Public Trial
At the outset, it is important to note that the reference
to the “total” closure of the court does not refer to the clo-
sure of the courtroom during all of Appellant’s court-mar-
tial proceedings. Rather, it refers to the fact that the mili-
tary judge closed the courtroom to all spectators—as well
as to the bailiffs and Government counsel—during one
thirty-four minute Article 39(a), UCMJ, session.9
9 See United States v. Thompson, 713 F.3d 388, 395 (8th Cir.
2013) (“Whether a closure is total or partial . . . depends not on
how long a trial is closed, but rather who is excluded during the
period of time in question.”). Here, the only people present in the
courtroom for the closed proceeding were the military judge, the
court reporter, Appellant, and his three standby counsel. See
also United States v. Allen, 34 F.4th 789, 797 (9th Cir. 2022) (“A
total closure of the courtroom means that ‘all persons other than
witnesses, court personnel, the parties and their lawyers are ex-
cluded for the duration of the hearing.’ ” (citation omitted));
United States v. Simmons, 797 F.3d 409, 413 (6th Cir. 2015) (“a
total closure involves excluding all persons from the courtroom
21
United States v. Hasan, No. 21-0193/AR
Opinion of the Court
Appellant challenges this decision by the military judge,
arguing that her ruling violated both the Sixth Amend-
ment and R.C.M. 806. He essentially makes three criti-
cisms of the military judge’s closure decision: (1) she failed
to make findings before closing the courtroom; (2) her find-
ings, once made, were inadequate and conclusory; and
(3) she failed to consider reasonable alternatives to the
courtroom closure. Appellant further claims that this im-
proper closure constitutes structural error, which warrants
automatic reversal.
We will assume without deciding that the military
judge did not comply with the relevant constitutional and
regulatory standards when she briefly closed Appellant’s
court-martial. However, as explained below, under the cir-
cumstances of this case any noncompliance with these
standards by the military judge does not entitle Appellant
to the remedy that he seeks—reversal of the findings and
sentence and a retrial.
I. Background
During trial, Appellant’s conduct led standby counsel10
to believe that Appellant was “working in concert . . . with
the prosecution towards a death sentence.” Because
standby counsel concluded that “providing even procedural
assistance” under these circumstances was “contrary to
[counsel’s] professional obligations,” they filed a motion—
which they served on Government counsel—seeking to
“withdraw from assisting [Appellant] in any manner.” In-
cluded in this motion was an enclosure containing counsel’s
entire mitigation case. Before Government counsel had the
opportunity to review this enclosure, however, the military
judge sealed the motion and all its enclosures.
The military judge then held an Article 39(a), UCMJ,
session on the motion. At the outset, Appellant requested
for some period” (citing Judd v. Haley, 250 F.3d 1308, 1316 (11th
Cir. 2001)).
10 There were three standby counsel at the time of the court
closure—LTC KP, LTC CM, and MAJ JM.
22
United States v. Hasan, No. 21-0193/AR
Opinion of the Court
“an in camera hearing” to discuss the motion. Despite rec-
ognizing “the sensitivities here,” the military judge began
the hearing in open court while trying to limit the public
discussion of details of the conflict between standby coun-
sel and Appellant. In doing so, she indicated that she would
“revisit” Appellant’s request “in just a moment.”
In open court, the military judge first elicited the views
of standby counsel. Counsel stated that it had become
“clear that [Appellant’s] goal [was] to remove impediments
or obstacles to the death penalty, and [he was], in fact, en-
couraging or working towards a death penalty.” Appellant
immediately objected to this belief as “a twist of the facts.”
The military judge asked standby counsel not to go “into
specifics in this forum,” and she sought to clarify counsel’s
motion.
After standby counsel expressed their views, the mili-
tary judge had the following exchange with Appellant:
MJ: Major Hasan, do you have anything that you
would like to present to the court [on] this matter
ex parte? And if so, I’m going to give you the op-
portunity to do that in writing.
ACC: I have—I’d like to do that right now, ma’am,
because I—
MJ: Right now, we’re not in an ex parte setting,
and I want to you give that opportunity. . . .
ACC: It is done now, ma’am. I wanted it to start
ex parte, but in regards to—
MJ: Hold on there a minute, Major Hasan. I was
very careful here not to go into any type of specif-
ics in there, so I’m giving you the opportunity to
present matters to me ex parte, and I want you to
do that in writing.
ACC: I object, and I’d like to do that briefly, if I
may?
....
MJ: Are you specifically waiving any privileges—
I don’t know what you’re planning on going into
here—but are you specifically waiving any
23
United States v. Hasan, No. 21-0193/AR
Opinion of the Court
privileges, and you want to discuss this matter in
a non-ex parte setting?
ACC: Yes, ma’am.
MJ: Is anybody forcing you to make that decision?
ACC: No, ma’am.
MJ: I’m giving you the opportunity to present your
argument, or anything else that you want me to
consider, in an ex parte forum.
ACC: I understand. I don’t think it is what you
think it is, ma’am. I just want to clarify about
[LTC KP’s] assertion of me seeking the death
penalty.
MJ: I would prefer that you give that to me in
writing.
ACC: I object, ma’am.
MJ: You’re not going to give me anything in
writing?
ACC: No, ma’am. Your Honor, [LTC KP] has made
an assertion— . . . . and I feel compelled to clarify
the issue.
MJ: You objected to what [LTC KP] said is what
you’re telling me?
ACC: It isn’t accurate, and I’d like to clarify that.
MJ: Hold on. I’m going to conduct the rest of this
hearing as an ex parte hearing. I’m going to clear
the courtroom. That includes you, Bailiff.
As indicated below, the military judge later stated on the
record that her purpose in temporarily closing the court-
room was to protect attorney work product and attorney-
client communications. However, she did not make any
findings before she closed the courtroom.
During the closed hearing, while discussing enclosures
to the trial defense counsel’s motion, Appellant requested
of the military judge, “Please unseal everything.” Appellant
elaborated:
The part of the unsealing, ma’am, is that if we had
done this in camera before all this began, that
would’ve been my preference, but now that the
24
United States v. Hasan, No. 21-0193/AR
Opinion of the Court
whole idea that I’m seeking the death penalty is
out, I feel compelled to address that, not just in
front of you, but in front of the media that’s hear-
ing this. This is my reputation, my principles at
stake here, and I don’t want anybody to get a mis-
representation of—they might think, ‘Hey, this
guy is crazy because he is seeking the death pen-
alty.’ I feel compelled to clarify that and say, hey,
I’m not crazy, this is just a matter of principle. The
Mujahideen, this is what we do. This is what we
are. There’s [sic] others like me that believe the
same.
This closure of the courtroom lasted thirty-four minutes
out of a seventeen-day trial (from opening statements to
the announcement of the sentence) and covered thirteen
pages of a more than two-thousand-page trial transcript.
The following day, the military judge explained her ra-
tionale for closing the proceedings as follows:
I closed the court yesterday to the public and had
an ex parte 39(a) session. I do that on very rare
occasions, and I do it pursuant to Rule for Court-
Martial 806. In this particular instance, I believed
that we needed to do that to address some issues
that arose between standby counsel and [Appel-
lant], and issues relating to the release of privi-
leged attorney work product, attorney/client, and
other privileged communications. There was sub-
stantial probability that an overriding interest
[in] retaining the confidentiality of those commu-
nications would be prejudiced if the proceedings
remained open, and I believed that other means to
address the issue were inadequate.
On July 6, 2022, almost nine years after the closed Ar-
ticle 39(a), UCMJ, session occurred, this Court unsealed
the transcript of that session.11
11 The delay in unsealing this portion of the transcript is ex-
plainable by the following facts. The military judge believed the
transcript contained privileged material and did not unseal it for
that reason. During oral argument before the lower appellate
court, appellate defense counsel was asked whether Appellant
consented to the disclosure of the concealed material, and
25
United States v. Hasan, No. 21-0193/AR
Opinion of the Court
II. Standard of Review
This Court reviews whether a military judge properly
closed courtroom proceedings for an abuse of discretion.
United States v. Ortiz, 66 M.J. 334, 338 (C.A.A.F. 2008).
Although Appellant raised this issue for the first time in
this Court, the parties agree that this abuse of discretion
standard applies to the instant case. In this situation, we
concur.
III. Applicable Law
“In all criminal prosecutions, the accused shall enjoy
the right to . . . a public trial.” U.S. Const. amend. VI.12
“Without question, the [S]ixth-[A]mendment right to a
public trial is applicable to courts-martial.” United States
v. Hershey, 20 M.J. 433, 435 (C.M.A. 1985) (footnote omit-
ted); see also United States v. Short, 41 M.J. 42, 43
(C.A.A.F. 1994) (“The Sixth Amendment right to a public
trial is applicable to courts-martial.”). In addition to the
Sixth Amendment, there is a regulatory right to open
courts-martial. R.C.M. 806(a) (2008 ed.) (“Except as
defense counsel declined to give a responsive answer on Appel-
lant’s behalf. And then, it was not until May 2022 that Appellant
filed a motion with this Court asking that the transcript pages
from the closed hearing be unsealed. We granted that motion
two months later, thereby making the material public. United
States v. Hasan, 82 M.J. 422, 422-23 (C.A.A.F. 2022) (order).
12 The First Amendment also gives the public the right of
access to criminal trials. Presley v. Georgia, 558 U.S. 209, 212
(2010) (per curiam) (citing Press-Enter. Co. v. Superior Ct. of
Cal., 464 U. S. 501, 501 (1984)). “There can be no doubt that the
general public has a qualified constitutional right under the
First Amendment to access to criminal trials.” United States v.
Travers, 25 M.J. 61, 62 (C.M.A. 1987). “[W]hen an accused is en-
titled to a public hearing, the press enjoys the same right and
has standing to complain if access is denied.” ABC, Inc. v. Powell,
47 M.J. 363, 365 (C.A.A.F. 1997). However, the Supreme Court
has not decided “[t]he extent to which the First and Sixth
Amendment public trial rights are coextensive,” labeling this is-
sue “an open question.” Presley, 558 U.S. at 213.
26
United States v. Hasan, No. 21-0193/AR
Opinion of the Court
otherwise provided in this rule, courts-martial shall be
open to the public.”).
Conducting criminal trials in public is of paramount
constitutional concern. Public trials ensure that judges and
prosecutors act professionally; they reduce the chances of
arbitrary and capricious decision-making; they encourage
witnesses to come forward; they discourage perjury; and
they enhance public confidence in the court system. See
Waller v. Georgia, 467 U.S. 39, 46 (1984) (noting that with
a public trial, “the public may see [the accused] is fairly
dealt with and not unjustly condemned” and the public
“may keep his triers keenly alive to a sense of their respon-
sibility and to the importance of their functions” (citation
omitted) (internal quotation marks omitted)). As our pre-
decessor court stated, “public confidence in matters of mil-
itary justice would quickly erode if courts-martial were ar-
bitrarily closed to the public.” Travers, 25 M.J. at 62.
Despite this general rule, both the Sixth Amendment
and R.C.M. 806 make exceptions to the right to have a pub-
lic trial. Waller, 467 U.S. at 45 (“the right to an open trial
may give way in certain cases to other rights or interests”);
R.C.M. 806(a) (2008 ed.) (“Except as otherwise provided in
this rule, courts-martial shall be open to the public.”).
“Nonetheless, ‘the exclusion must be used sparingly with
the emphasis always toward a public trial.’ ” Short, 41 M.J.
at 43 (quoting United States v. Grunden, 2 M.J. 116, 120
(C.M.A. 1977)).
In Waller, the Supreme Court’s seminal Sixth Amend-
ment case on the right to a public trial, the Court an-
nounced the following standard for closing a trial:
[T]he party seeking to close the hearing must ad-
vance an overriding interest that is likely to be
prejudiced, the closure must be no broader than
necessary to protect that interest, the trial court
must consider reasonable alternatives to closing
the proceeding, and it must make findings ade-
quate to support the closure.
27
United States v. Hasan, No. 21-0193/AR
Opinion of the Court
467 U.S. at 48 (citing Press-Enter. Co., 464 U. S. at 511-
12).13
R.C.M. 806 mirrors the Waller test as follows:
Courts-martial shall be open to the public unless
(1) there is a substantial probability that an over-
riding interest will be prejudiced if the proceed-
ings remain open; (2) closure is no broader than
necessary to protect the overriding interest; (3)
reasonable alternatives to closure were consid-
ered and found inadequate; and (4) the military
judge makes case-specific findings on the record
justifying closure.
R.C.M. 806(b)(2) (2008 ed.).14
IV. Discussion
It is important to note that the military judge was pre-
sented with a difficult situation here. Appellant was pro-
ceeding pro se, and the military judge was trying to protect
Appellant from publicly disclosing information that might
13 Although the Waller test specifically deals with when a
party seeks closure, we conclude that this test equally applies to
a military judge’s sua sponte decision to close a courtroom. See
United States v. Candelario-Santana, 834 F.3d 8, 23 (1st Cir.
2016) (applying the Waller test where “Government did not re-
quest a closure”); Tucker v. Superintendent Graterford SCI, 677
F. App’x 768, 770 (3d Cir. 2017) (applying Waller test after not-
ing that the trial judge closed the courtroom following “an off-
the-record discussion with counsel in chambers”); United States
v. Honken, 438 F. Supp. 2d 983, 986 (N.D. Iowa 2004) (applying
the Waller test when determining whether the court would sua
sponte close a hearing on the motion for an anonymous jury).
14 The parties agree that the same standard applies to both
the constitutional and the R.C.M. court closure claims. We con-
cur. See R.C.M. 806(b)(2) Discussion (2008 ed.) (“A session may
be closed over the objection of the accused or the public upon
meeting the constitutional standard set forth in this Rule.”);
Manual for Courts-Martial, United States, Analysis of the Rules
for Courts-Martial app. 21 at A21-48 (2008 ed.) (“The rules on
closure now in subsection (b)(2) and the Discussion were
amended in light of military case law that has applied the Su-
preme Court’s constitutional test for closure to courts-martial.”).
28
United States v. Hasan, No. 21-0193/AR
Opinion of the Court
be damaging to his own defense. Her concern was height-
ened because: the issue under discussion involved matters
pertaining to attorney-client privilege; the standby coun-
sel’s motion contained privileged information; and Appel-
lant’s stance on whether he waived his privilege regarding
such matters was confusing. Nevertheless, we will assume
without deciding that the military judge abused her discre-
tion in briefly closing Appellant’s court-martial. Upon do-
ing so, however, we conclude that Appellant is not entitled
to have his findings and sentence set aside.
In Weaver v. Massachusetts, the Supreme Court stated
that this “constitutional violation—the courtroom clo-
sure—has been treated . . . as a structural error.” 582 U.S.
286, 290 (2017).15 Importantly however, in Waller the Su-
preme Court stated that when there has been “a violation
of the public-trial guarantee. . . .[,] the remedy should be
appropriate to the violation” and warned against imposing
a remedy that “would be a windfall for the defendant, and
not in the public interest.” 467 U.S. at 49-50 (footnote omit-
ted). Such a pronouncement runs contrary to the notion
that a conviction obtained in the face of a public trial viola-
tion should be automatically overturned without further
analysis. Moreover, the United States Court of Appeals for
the Second Circuit has underscored that “the [Supreme]
Court has never said, much less ruled, that any conviction
following an erroneous closure must be vacated.” Jordan v.
Lamanna, 33 F.4th 144, 153 (2d Cir. 2022).
At oral argument, Appellant argued that Weaver,
582 U.S. at 290, and Presley, 558 U.S. at 209, overruled this
aspect of Waller. Our reading of those cases indicates oth-
erwise. Presley, 558 U.S. at 211-16, did not address this is-
sue, and Weaver, 582 U.S. at 296-97, did not explicitly
15 R.C.M. 806 does not specify a remedy for a violation of its
requirement that “[c]ourts-martial shall be open to the public.”
Because the same standard applies under both the Constitution
and the rule to determine whether a public trial violation has
occurred, we hold that the remedy for a violation of R.C.M. 806
must also be the same.
29
United States v. Hasan, No. 21-0193/AR
Opinion of the Court
overrule this key facet of Waller. And we pointedly note,
“overruling by implication is disfavored.” United States v.
Pack, 65 M.J. 381, 383-84 (C.A.A.F. 2007) (citing Eberhart
v. United States, 546 U.S. 12, 19-20 (2005); State Oil Co. v.
Khan, 522 U.S. 3, 19 (1997); Rodriguez de Quijas v. Shear-
son/American Express, Inc., 490 U.S. 477, 484 (1989)). In-
deed, the Supreme Court has stated that its decisions, such
as in Waller, “remain binding precedent until [it] see[s] fit
to reconsider them, regardless of whether subsequent cases
have raised doubts about their continuing vitality.” Hohn
v. United States, 524 U.S. 236, 252-53 (1998).
Moreover, the Supreme Court has acknowledged that
not all structural errors merit automatic reversal. Weaver,
582 U.S. at 297 (noting that “despite the structural aspect
of the violation” in Waller, “the Court did not order a new
trial”). Indeed, the Court stated that “in the case of a struc-
tural error where there is an objection at trial and the issue
is raised on direct appeal, the defendant generally is enti-
tled to ‘automatic reversal’ regardless of the error’s actual
‘effect on the outcome.’ ” Id. at 299 (emphasis added) (quot-
ing Neder v. United States, 527 U.S. 1, 7 (1999)); see also
id. at 305 (“When a structural error is preserved and raised
on direct review, the balance is in the defendant’s favor,
and a new trial generally will be granted as a matter of
right.” (emphasis added)); State v. Schierman, 438 P.3d
1063, 1081 n.15 (Wash. 2018) (“Thus, Waller illustrates the
fact that a new trial is not always the remedy for the struc-
tural error of courtroom closure. See also Weaver . . . , [582]
U.S. [at 297] . . . (noting that Waller did not grant the rem-
edy of a new trial ‘despite the structural aspect of the vio-
lation’).”). Therefore, in this case where we assume that the
military judge erred in closing the Article 39, UCMJ, ses-
sion, we look to the Supreme Court’s foundational case on
this topic—Waller—and adhere to its ruling that when
there has been “a violation of the public-trial guaran-
tee. . . .[,] the remedy should be appropriate to the viola-
tion,” and a remedy should not be imposed that “would be
30
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Opinion of the Court
a windfall for the defendant, and not in the public interest.”
Waller, 467 U.S. at 49-50 (footnote omitted).16
In this context, Appellant claims that “the only appro-
priate result is reversal.” Appellant’s Brief at 67. We disa-
gree. Such a remedy would be grossly disproportionate to
the violation. This is true for a number of reasons.
First, the closure of the Article 39(a) session was brief.
As indicated above, it lasted only thirty-four minutes, and
it covered only thirteen pages in the transcript.
Second, the closed hearing did not involve witness tes-
timony, the admission of evidence, or any other matter di-
rectly related to the findings or sentence in this case.
Third, the military judge explored reasonable alterna-
tives to closing the hearing. She initially kept the hearing
open and instructed Appellant and his counsel not to dis-
cuss privileged material. It was only when she grew con-
cerned that this approach may not work that she ulti-
mately closed the hearing. The military judge also sought
to protect the privileged material by having Appellant sub-
mit his concerns in writing—but he refused. Specifically,
as noted above, the following exchange occurred:
MJ: Major Hasan, do you have anything that you
would like to present to the court [on] this matter
ex parte? And if so, I’m going to give you the op-
portunity to do that in writing.
....
ACC: I object . . . .
16 We recognize this Court stated in Ortiz that an “erroneous
deprivation of the right to a public trial is structural error, which
requires this Court to overturn Appellant’s conviction without a
harmlessness analysis.” 66 M.J. at 342. However, as we have ex-
plained, the Supreme Court made clear in Waller that not all
public trial structural errors lead to automatic reversal. 467 U.S.
at 49-50. Therefore, to the extent that Ortiz required automatic
reversal of a conviction for a Sixth Amendment public trial vio-
lation, we overrule Ortiz and adopt the approach provided in
Waller.
31
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Opinion of the Court
....
MJ: I would prefer that you give that to me in
writing.
ACC: I object, ma’am.
MJ: You’re not going to give me anything in
writing?
ACC: No ma’am . . . .
Fourth, the military judge placed her reasons for closing
the hearing on the record—albeit after the fact rather than
before the fact.
Fifth, contrary to Appellant’s assertions, these findings
by the military judge were not inadequate. It is clear from
the record—both before the hearing was closed and in the
subsequent findings—that the military judge was moti-
vated by a concern for protecting Appellant’s rights. These
concerns by the military judge were heightened by the fact
that there was an apparent rift between Appellant and his
standby counsel, and Appellant—who was proceeding pro
se—had no legal training that would help him discern
whether the disclosure of potentially privileged material in
open court would be harmful to his defense. Moreover, the
military judge’s ex post explanation for the closure of the
courtroom was clear. She stated that the Article 39(a) hear-
ing involved “issues relating to the release of privileged at-
torney work product [and] attorney/client[] and other priv-
ileged communications.” She further stated as follows:
“There was substantial probability that an overriding in-
terest of retaining the confidentiality of those communica-
tions would be prejudiced if the proceedings remained
open, and I believed that other means to address the issue
were inadequate.”
And sixth, this Court has now unsealed the transcript
of the closed session and the public can readily see what
happened during that hearing.17 Specifically, the public
now knows that during the closed session the military
17 Even Appellant acknowledges that the release of the tran-
script was a reasonable alternative, at least at the trial level.
32
United States v. Hasan, No. 21-0193/AR
Opinion of the Court
judge acted professionally and did not engage in arbitrary
or capricious decision-making, and that neither the
military judge nor standby counsel infringed the rights or
interests of Appellant in any way, thereby enhancing
public confidence in the court system. See Waller, 467 U.S.
at 46; Press-Enter. Co., 464 U.S. at 512; cf. Weaver,
582 U.S. at 304 (finding that the trial at issue was not
fundamentally unfair in the ineffective assistance of
counsel context when counsel did not object to the court
closure because, in part, “there was a record made of the
proceedings that does not indicate any basis for concern,
other than the closure itself”).
Therefore, because reversal of the findings and sentence
in this case would not “be appropriate to the violation” and
would constitute a “windfall” for Appellant that would not
be “in the public interest,” Waller, 467 U.S. at 50, we de-
cline to impose the remedy sought by Appellant.
Issue III: Whether the Military Judge Erred by
Failing to Disqualify Lieutenant Colonel KG
as a Panel Member
Appellant challenges the military judge’s failure to sua
sponte excuse LTC KG from serving as a panel member.
Appellant claims that LTC KG exhibited actual and im-
plied bias through his panel questionnaires, his voir dire
responses, and the content of a bumper sticker affixed to
his vehicle. Thus, although Appellant did not challenge
LTC KG for cause and did not exercise his peremptory chal-
lenge to remove LTC KG or anyone else from his court-mar-
tial panel, he now asserts on appeal that the military judge
erred by failing to “disqualify” LTC KG and argues that he
“must be granted a rehearing before an impartial panel.”
Appellant’s Brief at 68, 84. Despite Appellant’s conten-
tions, we hold that the military judge did not err by declin-
ing to exercise her discretionary authority to sua sponte ex-
cuse LTC KG under R.C.M. 912(f)(4) (2008 ed.).
I. Background
LTC KG was selected by the convening authority to
serve as a prospective panel member at Appellant’s court-
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Opinion of the Court
martial. LTC KG twice submitted answers to a panel mem-
ber questionnaire. In his first set of responses LTC KG
gave answers that were concerning. Among other things,
he agreed he was “affected . . . in a personal way” by the
shootings, he knew a significant number of details about
the facts of the case, he said he was angry about the Fort
Hood attack, he agreed with the statement that soldiers
who kill fellow soldiers “should not be given the same
rights as other criminal defendants,” he had a bumper
sticker on his car reading “Major League Inf[i]del,” and
most importantly, he admitted that he was not confident
that he could be impartial and that he already had an im-
pression that Appellant was guilty.
Approximately nine months later and unprompted by
either party, LTC KG filled out the panel member ques-
tionnaire a second time. His stated reason for doing so was
as follows: “When I first filled [out the questionnaire] nine
months ago, I was in the throes of battalion command and
had [a] darker view of issues and [was] under a considera-
bly greater level of stress.” In his second set of responses,
LTC KG gave different answers to several questions. De-
spite these circumstances, during voir dire Appellant—who
was proceeding pro se—did not challenge LTC KG for cause
or use a peremptory challenge to strike him from the panel.
In fact, when questioned by the military judge about this
matter, Appellant agreed that he was specifically waiving
all challenges for cause against a group of members that
included LTC KG.
II. Applicable Law
When an accused believes there are grounds for chal-
lenging a member following voir dire, the accused “shall
state [his or her] challenges for cause.” R.C.M. 912(f)(2)
(2008 ed.). Ordinarily, an accused waives a ground for chal-
lenge “if the [accused] knew of or could have discovered by
the exercise of diligence the ground for challenge and failed
to raise it in a timely manner.” R.C.M. 912(f)(4) (2008 ed.).
“Notwithstanding the absence of a challenge or waiver of a
challenge by the parties, the military judge may, in the in-
terest of justice, excuse a member against whom a
34
United States v. Hasan, No. 21-0193/AR
Opinion of the Court
challenge for cause would lie.” Id. Under this rule, “[a] mil-
itary judge has the discretionary authority to sua sponte
excuse [a] member but has no duty to do so.” United States
v. McFadden, 74 M.J. 87, 90 (C.A.A.F. 2015). A military
judge’s “decision whether or not to excuse a member sua
sponte is subsequently reviewed for an abuse of discretion.”
United States v. Strand, 59 M.J. 455, 458 (C.A.A.F. 2004);
see also United States v. Akbar, 74 M.J. 364, 397 (C.A.A.F.
2015).
III. Discussion
It is essential to underscore at the outset of this discus-
sion that, as we held in McFadden, a military judge has no
duty to exercise his or her authority to excuse a panel mem-
ber who has not been challenged by either party. 74 M.J.
at 90. This holding is based squarely on the plain language
of the applicable Rule for Courts-Martial. As we explained
in McFadden, R.C.M. 912(f)(4) states that a military judge
“may, in the interests of justice, excuse a member.” (Em-
phasis added.) See Jama v. Immigration & Customs En-
forcement, 543 U.S. 335, 346 (2005) (“The word ‘may’ cus-
tomarily connotes discretion.”); Bryan A. Garner, Garner’s
Dictionary of Legal Usage 568 (3d ed. 2011). Thus, the ex-
ercise of that authority is discretionary. In the course of de-
ciding whether a military judge abused that discretion, it
is necessary for this Court to review the facts that were be-
fore the trial court.
Here, the military judge was aware of a number of im-
portant points. To begin with, she knew she had fully ap-
prised Appellant about: the panel selection process; Appel-
lant’s ability to ask questions of members during voir dire;
Appellant’s ability to challenge members for cause; and Ap-
pellant’s ability to exercise a peremptory challenge. She
also knew that Appellant seemingly understood this pro-
cess because he submitted general voir dire questions;
withdrew some of these questions; requested individual
voir dire of members;18 asked questions of a number of
18 Appellant even asked the military judge to provide a pro-
spective panel member with that member’s “thesis” on the
35
United States v. Hasan, No. 21-0193/AR
Opinion of the Court
prospective panel members—including LTC KG; requested
and was granted the right to recall a particular member for
additional questions; and joined the Government in suc-
cessfully seeking the excusal of a member of the venire.
Furthermore, Appellant recognized “a clear discrepancy”
between a specific prospective member’s answers on his
questionnaire and his answers during voir dire. By taking
these steps, Appellant demonstrated to the military judge
his knowledge of the voir dire process, as well as his will-
ingness to avail himself of the protections afforded by that
process as he saw fit.
Further, the military judge knew that although
Appellant was proceeding pro se, he had standby counsel
who could instruct him on how to challenge prospective
panel members. And importantly, she also knew that
Appellant had been provided with the services of a self-
selected, government-funded jury consultant on whom
Appellant could rely.
Next, the military judge knew that in light of LTC KG’s
self-initiated reassessment of his responses to the panel
member questionnaire and his answers during voir dire,
LTC KG could be perceived as having “rehabilitated” him-
self for court-martial purposes and as having displayed a
welcome ability to reconsider any reflexive positions he had
previously taken in regard to this case. Specifically, LTC
KG affirmed during individual voir dire with the military
judge that he could decide the case “based solely on the ev-
idence admitted in court,” could follow the judge’s instruc-
tions, and knew of no reason why he could not be impartial.
Also, the military judge knew that Appellant had une-
quivocally chosen not to challenge LTC KG for cause or to
use a peremptory challenge to remove him from the court-
martial panel. Indeed, the military judge directly ad-
dressed this point twice with Appellant. After LTC KG and
one set of panel members participated in individual voir
Afghanistan insurgency so that, prior to Appellant’s question-
ing, the member could refresh his recollection about what he had
written.
36
United States v. Hasan, No. 21-0193/AR
Opinion of the Court
dire, Appellant had the following exchange with the mili-
tary judge:
MJ: Major Hasan, do you have any challenges for
cause?
ACC: I do not.
MJ: Are you specifically waiving any challenges
for cause of the remaining members?
ACC: Yes, ma’am.
And later, when the military judge gave Appellant another
chance to challenge members for cause, Appellant did not
take this opportunity to challenge LTC KG (or any other
member). Instead, he responded, “No, ma’am,” to the mili-
tary judge’s question, “[D]id you have any challenge for
cause of any member?”
When deciding whether to exercise her discretionary
authority to excuse LTC KG under R.C.M. 912(f)(4), the
military judge could properly consider all of these
indications that Appellant had made an informed and
intentional decision not to challenge LTC KG. As a
consequence, she also could properly consider the fact that
an accused’s judgment about whom he wants to sit in
judgment of him at trial can be highly personal and,
perhaps, idiosyncratic. As the United States Court of
Appeals for the Eleventh Circuit has recognized, “The
selection of a jury is by nature a subjective process which
relies heavily on the instincts of the attorneys [or a pro se
accused], the atmosphere in the courtroom, and the
reactions of the potential jurors to questioning.” United
States v. Williams, 936 F.2d 1243, 1246 (11th Cir. 1991);
see also United States v. Turner, 674 F.3d 420, 436 (5th Cir.
2012) (acknowledging “the subjective nature of jury
selection”). Moreover, we note that this Court must be
circumspect in using a cold record to second-guess a
military judge’s decision not to sua sponte excuse a panel
member whom both parties apparently wanted to sit on the
case. Cf. Uttecht v. Brown, 551 U.S. 1, 9 (2007) (“Deference
to the trial court is appropriate because it is in a position
to assess the demeanor of the venire, and of the individuals
37
United States v. Hasan, No. 21-0193/AR
Opinion of the Court
who compose it, a factor of critical importance in assessing
the attitude and qualifications of potential jurors.”). Taking
these factors into account, we find no basis for this Court
to conclude that the military judge abused her discretion in
declining to exercise her discretionary authority to sua
sponte excuse LTC KG. After all, under an abuse of
discretion standard, there “must be more than a mere
difference of opinion. The challenged action must be
arbitrary, fanciful, clearly unreasonable, or clearly
erroneous.” United States v. Black, 82 M.J. 447, 451
(C.A.A.F. 2022) (citation omitted) (internal quotation
marks omitted). Here, the military judge’s action did not
meet these criteria.
In light of the circumstances discussed above, we con-
clude that the military judge did not abuse her discretion
when she declined to exercise her discretionary authority
to sua sponte excuse LTC KG under R.C.M. 912(f)(4).
Issue IV: Whether Article 45(b)’s Prohibition
Against Guilty Pleas to Capital Offenses
Is Constitutional
&
Issue V: Assuming Arguendo that Article 45(b) Is
Constitutional, Whether its Application in this Case
Nonetheless Constituted Reversible Error
At the time of Appellant’s trial, Article 45(b), UCMJ,
prohibited an accused from pleading guilty to “any charge
or specification alleging an offense for which the death pen-
alty may be adjudged.”19 Appellant raises both a
19 10 U.S.C. § 845(b) (2012). Article 45(b) now provides: “A
plea of guilty by the accused may not be received to any charge
or specification alleging an offense for which the death penalty is
mandatory.” 10 U.S.C. § 845(b) (2018) (emphasis added). Thus,
this amendment “permit[s] an accused to enter a guilty plea in
a capital case in which the death penalty is not mandatory.” Da-
vid A. Schlueter, Reforming Military Justice: An Analysis of the
Military Justice Act of 2016, 49 St. Mary’s L. J. 1, 58 (2017). Ac-
cording to the R.C.M. 910(a)(1) Discussion (2019 ed.), “There are
38
United States v. Hasan, No. 21-0193/AR
Opinion of the Court
constitutional challenge to this article and a challenge to
this Court’s statutory interpretation of this provision. Spe-
cifically, Appellant argues that “Article 45(b)’s prohibition
on guilty pleas to capital offenses is an impermissible re-
striction on a competent accused’s right of autonomy to
make his defense.” Appellant’s Brief at 84. Even if this pro-
hibition is constitutional, he argues that “its application to
[A]ppellant’s offers to plead guilty in the alternative to non-
capital offenses constituted reversible error” because the
decision in United States v. Dock, 28 M.J. 117 (C.M.A.
1989), was “poorly reasoned.” Id. at 100-01. We conclude
that Appellant is not entitled to relief.
I. Background
After referral of the charges in this case, Appellant filed
notice with the trial court of his intent to plead guilty, pro-
posing three options. Under the first option, he offered to
plead guilty as charged to premeditated murder and at-
tempted premediated murder. Under the second option, he
offered to plead guilty to unpremeditated murder and at-
tempted premeditated murder. And under the third option,
he offered to plead guilty to unpremeditated murder and
attempted unpremeditated murder.
The military judge rejected Appellant’s offer to plead
guilty as charged to premediated murder and attempted
premeditated murder, ruling that such a plea was “con-
trary to Article 45(b) and . . . [thus option one was] not le-
gally permissible.”
Regarding Appellant’s offer to plead guilty to
unpremeditated murder and attempted premeditated
murder, the military judge ruled it was “not legally
permissible under United States v. Dock at 26 MJ 620[(A.C.M.R. 1988)], 28 MJ 117 [(C.M.R. 1989)], and also, the
case of United States v. McFarlane at [8 C.M.A 96] 23 CMR
320 [(1957)], because of the concept of transferred
premeditation. It would be possible for the accused to be
no offenses under the UCMJ for which a sentence of death is
mandatory.”
39
United States v. Hasan, No. 21-0193/AR
Opinion of the Court
convicted of the charged capital offense without presenting
any additional evidence . . . . [A]nd therefore, option two is
not legally permissible.”
The military judge also rejected Appellant’s offer to
plead guilty to unpremeditated murder and attempted un-
premeditated murder. She reasoned as follows:
[T]he court believes that accepting a plea to option
number three would be the functional equivalent
to pleading guilty to a capital offense. If the gov-
ernment did not put on any additional evidence
beyond the accused’s plea, could the accused be
found guilty of a capital offense under Article 120
[sic], subparagraph one? Strictly speaking, no, but
practically speaking, because of the facts and con-
text of this case, the answer would be yes. The
court also relies on United States v. Simoy, 46 MJ
592, an Air Force Court of Criminal Appeals case
from 1996, 50 MJ 1, Court of Appeals for the
Armed Forces, 1998.
The offense[] of attempted unpremeditated mur-
der requires both the intent to kill, and an act that
is more than mere preparation, and demonstrates
the accused’s resolve to commit the offense. The
difference between that and the premeditated de-
sign to kill is very slight. You couple that with a
number of acts that form the basis for the at-
tempted murders and murders that happened in
sequence, the four corners of the record will be
that the accused is functionally admitting to a
capital offense in violation of Article 45.
So, in other words, it is not the elements so much,
but the factual predicate in this particular case,
that is, the killing of 13 people over a period of
time, the elements themselves will not support
premeditation, but the facts supporting the ele-
ments would, and therefore, accepting a plea to
option number three would be the functional
equivalent to pleading guilty to a capital offense
in violation of Article 45 of the Uniform Code of
Military Justice.
(Second set of brackets in original.)
40
United States v. Hasan, No. 21-0193/AR
Opinion of the Court
Responding to a motion for reconsideration, the military
judge “adhere[d] to [her] original ruling” and denied the
defense request “to accept a plea of guilty to
unpremeditated murder and attempted unpremeditated
murder.” However, in seeking to address Appellant’s
expressed concerns, during the sentencing phase of the
trial the military judge repeatedly offered to instruct the
panel that Appellant had desired to plead guilty to the
charged offenses but was not permitted to do so by
operation of law. Appellant nevertheless expressly declined
that instruction and affirmatively asked the military judge
to “[n]ot instruct [the panel] at all.”
II. Issue IV: Constitutional Challenge to
Article 45(b), UCMJ20
Appellant argues that Article 45(b)’s prohibition
against guilty pleas to capital offenses, runs afoul of
the “ ‘protected right of autonomy’ to maintain innocence or
admit guilt” described in McCoy, 138 S. Ct. 1500. Appel-
lant’s Brief at 84. Appellant also argues that “this Court
should overturn United States v. Matthews, 16 M.J. 354(C.M.A. 1983) and its progeny, and find Article 45(b)’s pro-
hibition unconstitutional” because of two intervening Su-
preme Court decisions—McCoy and Weiss v. United States,
510 U.S. 163 (1994). Reply Brief at 41. Appellant maintains
that this denial of his offer to plead guilty resulted in struc-
tural error, entitling him to a rehearing.
A. Standard of Review
“The constitutionality of an act of Congress is a question
of law that we review de novo.” United States v. Ali, 71 M.J.
256, 265 (C.A.A.F. 2012).
B. Discussion
This Court has repeatedly affirmed the constitutional-
ity of Article 45(b), UCMJ. See Akbar, 74 M.J. at 400
20 Appellant raised this issue for the first time before the
ACCA in the form of a motion for reconsideration. Thus, the
lower court declined to consider it. Hasan, 2021 CCA LEXIS 114,
at *1-2.
41
United States v. Hasan, No. 21-0193/AR
Opinion of the Court
(rejecting the appellant’s contention that “the panel’s con-
sideration of mitigation evidence was unconstitutionally
limited by the [Article 45(b)] prohibition against guilty
pleas in capital cases” and citing United States v. Gray, 51
M.J. 1, 49 (C.A.A.F. 1999); United States v. Loving, 41 M.J.
213, 292 (C.A.A.F. 1994); and Matthews, 16 M.J. at 362-
63). Indeed, in Matthews, our predecessor court stated:
[W]e are unaware of any constitutional right to
plead guilty in capital cases. Furthermore, in light
of the special treatment given to capital cases by
courts and legislatures and the irreversible effect
of executing a capital sentence, we do not believe
that Congress acted arbitrarily by providing in the
Uniform Code that an accused [servicemember]
cannot plead guilty to a capital charge.
16 M.J. at 362-63.
Nevertheless, Appellant argues that Weiss and McCoy
undermine our precedent on this issue. We find these ar-
guments unpersuasive.
In Weiss, the Supreme Court adopted the following
standard for determining whether a due process challenge
to a facet of the military justice system should prevail: “the
factors militating in favor of [the challenged aspect of the
military justice system] are so extraordinarily weighty as
to overcome the balance struck by Congress.” Weiss, 510
U.S. at 177-78 (internal quotation marks omitted) (quoting
Middendorf v. Henry, 425 U.S. 25, 44 (1976)).
Attempting to apply the Weiss holding to his case, Ap-
pellant identifies the following “weighty considerations,”
which he asserts militate in favor of this Court striking
down Article 45, UCMJ, as unconstitutional on due process
grounds: (1) a guilty plea may spare an accused from death
by demonstrating that he has taken responsibility; (2) a not
guilty plea may have dire consequences; (3) a guilty plea
may spare an accused and his family from protracted court-
room proceedings; and (4) a guilty plea respects an ac-
cused’s right to autonomy to make a strategic choice to
acknowledge his crime.
42
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Opinion of the Court
These “weighty considerations” are not unique to this
case. Further, although Weiss was decided in 1994, as re-
cently as 2015 this Court specifically upheld the constitu-
tionality of Congress’s decision under Article 45(b), UCMJ,
to prohibit guilty pleas to any charges or specifications al-
leging offenses for which the death penalty may be ad-
judged. Akbar, 74 M.J at 400. And yet despite this prece-
dent, and despite the fact that Appellant’s Weiss analysis,
standing alone, is not compelling, Appellant has failed to
engage in a stare decisis analysis. United States v. Car-
denas, 80 M.J. 420, 423 (C.A.A.F. 2021) (listing the stare
decisis factors for overturning precedent). This Court finds
no reason to overturn our precedent in this area of the law,
and being offered no stare decisis analysis by Appellant, we
conclude that his reliance upon Weiss is misplaced.
Turning to McCoy, Appellant asserts that the Sixth
Amendment right of autonomy recognized in that case un-
dermines our precedent upholding the constitutionality of
Article 45(b).21 See Cardenas, 80 M.J. at 423 (stating that
“we are not bound by precedent when there is a significant
change in circumstances”); cf. United States v. Allbery, 44
M.J. 226, 228 (C.A.A.F. 1996) (noting that “an intervening
decision of . . . the Supreme Court of the United States”
would authorize a lower court to depart from this Court’s
precedent).
In McCoy, “the defendant vociferously insisted that he
did not engage in the charged acts and adamantly objected
21 Laying the groundwork for his “right of autonomy” argu-
ment under McCoy, Appellant also argues that the Supreme
Court’s opinion in Faretta, 422 U.S. 806, was “anchored in ‘the
fundamental legal principle that a defendant must be allowed to
make his own choices about the proper way to protect his own
liberty.’ ” Appellant’s Brief at 92 (quoting Weaver, 137 S. Ct. at
1907). He further argues that courts have applied Faretta “be-
yond self-representation to both restrict the imposition of pleas
on unwilling defendants and uphold pleas that were freely re-
quested.” Id. Be that as it may, we do not read Faretta or its
progeny as being so broad as to disturb our long-established
precedent that upholds the constitutionality of Article 45(b).
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Opinion of the Court
to any admission of guilt.” 138 S. Ct. at 1505. However, “the
trial court permitted counsel, at the guilt phase of a capital
trial, to tell the jury the defendant ‘committed three mur-
ders. . . . [H]e’s guilty.’ ” Id. (alterations in original). The
Supreme Court held “that a defendant has the right to in-
sist that counsel refrain from admitting guilt.” Id. The
Court explained that “it is the defendant’s prerogative, not
counsel’s, to decide on the objective of his defense: to admit
guilt in the hope of gaining mercy at the sentencing stage,
or to maintain his innocence, leaving it to the State to prove
his guilt beyond a reasonable doubt.” Id.Despite this seemingly expansive language highlighted
by Appellant, many federal courts interpreting and apply-
ing the McCoy holding have limited it to the narrow set of
circumstances presented in that case. See, e.g., Kellogg-Roe
v. Gerry, 19 F.4th 21, 28 (1st Cir. 2021) (declining to extend
McCoy beyond the facts of that case); United States v. Rose-
mond, 958 F.3d 111, 123 (2d Cir. 2020) (“[W]e read McCoy
as limited to a defendant preventing his attorney from ad-
mitting he is guilty of the crime with which he is charged.”);
see also Roof, 10 F.4th at 353 (approvingly citing the prior-
quoted language from Rosemond).
Moreover, the language in McCoy suggesting that the
decision of “whether to plead guilty”—when pleading guilty
is a possibility—is “reserved for the client,” is dicta. 138 S.
Ct. at 1508. The actual holding of McCoy is that “it is
unconstitutional to allow defense counsel to concede guilt
over the defendant’s intransigent and unambiguous
objection.” Id. at 1507 (emphasis added). That
circumstance did not occur in the instant case. Further,
McCoy was allowed to enter the plea of his choice—not
guilty—and the harm came from his counsel’s
admissions—purportedly on McCoy’s behalf—that were
inconsistent with that plea. Id. at 1506–07. Again, that
circumstance did not arise in the instant case. Further still,
McCoy concerned the prerogative of an attorney to
determine the scope of appropriate objectives of
representation by unilaterally deciding whether a guilty
plea should be entered on a client’s behalf. But the issue
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here concerns whether Congress has the power to decide
whether an accused may enter a guilty plea.
Additionally, the Supreme Court’s concerns in McCoy
were of a different nature than the concerns expressed by
Appellant in the instant case. Stated differently, the inter-
ests implicated by a counsel telling a jury that the accused
is guilty against the accused’s wishes is simply of a differ-
ent kind than the interests implicated by Congress refus-
ing to allow an accused servicemember to plead guilty to a
certain subset of offenses. The Supreme Court recognized
that an accused in McCoy’s position “may wish to avoid,
above all else, the opprobrium that comes with admitting
he killed family members. Or he may hold life in prison not
worth living and prefer to risk death for any hope, however
small, of exoneration.” Id. at 1508. In Appellant’s case, nei-
ther of these interests is present because Appellant wanted
to plead guilty. Regardless, this is a policy consideration for
Congress to consider, not a constitutional or legal issue for
this Court to decide.
In analyzing this issue, perhaps the most important
point is that the Constitution expressly grants Congress
power over the military justice system. Article I, § 8, cl. 14
states: “The Congress shall have the power . . . [t]o make
Rules for the Government and Regulation of the land and
naval Forces . . . .” See Chappell v. Wallace, 462 U.S. 296,
301 (1983) (“It is clear that the Constitution contemplated
that the Legislative Branch [would] have plenary control
over . . . regulations, procedures and remedies related to
military discipline . . . .”). And as we have repeatedly held,
Congress legislated within the confines of this constitu-
tional grant of authority when it enacted Article 45, UCMJ.
The intent of Congress in enacting Article 45 is appar-
ent; it sought to protect the interests of accused service-
members, not circumscribe them. See United States v.
Chancelor, 16 C.M.A. 297, 299, 36 C.M.R. 453, 455 (1966)
(“During the hearings on the Uniform Code of Military Jus-
tice, there was considerable concern expressed regarding
the entry of guilty pleas in courts-martial, and Congress
made clear the nature of the safeguards which they
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Opinion of the Court
intended to surround the receiving of such a judicial con-
fession.”). This Court has long observed that Congress
could decide that “[t]he ‘unique circumstances of military
service require[] specific statutory protections for members
of the armed forces’ ” due to “the subtle and not so subtle
pressures that apply to military life and might cause mem-
bers of the armed forces to feel compelled to” relinquish
their constitutional rights. United States v. Gilbreath, 74
M.J. 11, 16-17 (C.A.A.F. 2014) (second alteration in origi-
nal) (discussing Article 31(b), UCMJ, 10 U.S.C. § 831(b)
(2012)) (quoting United States v. Swift, 53 M.J. 439, 445
(C.A.A.F. 2000)). Thus, Congress was exercising its consti-
tutional authority to make rules for the armed forces when
it prohibited guilty pleas in capital cases under Article
45(b), UCMJ.
Moreover, as the Supreme Court itself has clearly
stated, “[t]here is, of course, no absolute right to have a
guilty plea accepted,” nor, more generally, to enter any
guilty plea that a defendant might wish to enter. Santo-
bello v. New York, 404 U.S. 257, 262 (1971); United States
v. McCrimmon, 60 M.J. 145, 152 (C.A.A.F. 2004) (“An ac-
cused does not have a constitutional right to plead
guilty[,] . . . . [a]s the Constitution guarantees only a right
to plead not guilty . . . .”). Rather, the sovereign is free to
delineate when and under which circumstances certain
pleas may be entered. See North Carolina v. Alford, 400
U.S. 25, 38 n.11 (1970) (“A criminal defendant does not
have an absolute right under the Constitution to have his
guilty plea accepted by the court, although the States may
by statute or otherwise confer such a right. Likewise, the
States may bar their courts from accepting guilty pleas
from any defendants who assert their innocence.” (citation
omitted)).
In this case, Appellant was merely compelled by Con-
gress to have the Government prove his guilt beyond a rea-
sonable doubt. This was not a violation of his Sixth Amend-
ment rights—particularly when any detriment to
Appellant would have been allayed by the military judge’s
offer to instruct the panel members during sentencing that
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Opinion of the Court
Appellant had sought to plead guilty during findings but
was prohibited from doing so by operation of law. In sum,
considering the long history of the legislative regulation of
the entry of pleas, Congress’s authority under the Consti-
tution to regulate military justice, and the Supreme
Court’s Sixth Amendment precedent, the dicta in McCoy
cannot be read as suggesting that there is a constitutional
right to plead guilty. See Weiss, 510 U.S. at 177 (stressing
that judicial deference “ ‘is at its apogee’ when reviewing
congressional decisionmaking” concerning regulations and
procedures related to military justice (quoting Rostker v.
Goldberg, 453 U.S. 57, 70 (1981))). Therefore, Appellant’s
argument that McCoy requires us to overrule our prece-
dents that have consistently upheld Article 45(b)’s prohibi-
tion against guilty pleas for capital offenses is without
merit.
III. Issue V: Statutory Challenge to Article 45(b), UCMJ
In the alternative, Appellant contends that by prohibit-
ing his proffered guilty pleas to noncapital offenses, the
military judge “caused the wholesale deprivation of
[A]ppellant’s regulatory right to plead guilty to these non-
capital offenses[,] . . . result[ing] in structural error.” Ap-
pellant’s Brief at 101. Specifically, he advocates for over-
ruling our predecessor court’s decision in Dock, 28 M.J.
117, to the extent that it prohibits, under certain circum-
stances, a capital accused from pleading guilty to noncapi-
tal offenses. Appellant notes that the military judge relied
on Dock to reject Appellant’s offer to plead guilty to unpre-
meditated murder, as well as to either attempted premed-
itated murder or attempted unpremeditated murder.
In Dock, this Court’s predecessor interpreted Article
45(b) to mean that “ ‘it is not just the pleas that are looked
to but the four corners of the record to see if, for all practical
purposes, the accused pled guilty to a capital offense.’ ” 28
M.J. at 119 (alteration in original removed) (internal quo-
tation marks omitted) (first quoting United States v. Dock,
26 M.J. 620, 623 (A.C.M.R. 1988) (en banc); and then citing
United States v. McFarlane, 8 C.M.A. 96, 100, 23 C.M.R.
320, 324 (1957)). In Dock, because the “appellant’s pleas,
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Opinion of the Court
taken within the context of th[e] case, constituted a plea of
guilty to . . . a capital offense,” those pleas “were taken in
violation of Article 45(b), . . . and should have been rejected
as required by Article 45(a), UCMJ.” Id. (second alteration
in original) (emphasis added) (internal quotation marks
omitted) (quoting Dock, 26 M.J. at 623).
A. Standards of Review
“This Court reviews matters of statutory
interpretation[, such as the interpretation of Article 45,] de
novo.” United States v. Hiser, 82 M.J. 60, 64 (C.A.A.F.
2022). Deviation from the requirements of Article 45(b) is
reviewed for harmless error. See Matthews, 16 M.J. at 363(finding “no prejudice to appellant from the judge’s refusal
to accept a plea of guilty to this crime”). And this Court
reviews whether there is harmless error de novo. United
States v. Bowen, 76 M.J. 83, 87 (C.A.A.F. 2017). Finally,
this Court has the discretion to overrule its own precedent.
United States v. Blanks, 77 M.J. 239, 242 (C.A.A.F. 2018)
(although “adherence to precedent is the preferred course,”
stare decisis “is not an inexorable command” (citations
omitted) (internal quotation marks omitted)).
B. Applicable Law
As discussed above, at the time of Appellant’s court-
martial Article 45(b), UCMJ, provided, in relevant part,
that “[a] plea of guilty by the accused may not be received
to any charge or specification alleging an offense for which
the death penalty may be adjudged.” The analogous Rule
for Court-Martial, R.C.M. 910(a)(1) (2008 ed.), contained
nearly identical language: “A plea of guilty may not be re-
ceived as to an offense for which the death penalty may be
adjudged by the court-martial.”
In noncapital cases, however—both at the time of Ap-
pellant’s court-martial and up until the present day—
R.C.M. 910 has generally permitted an accused to plead
“not guilty to an offense as charged, but guilty of a lesser
included offense.” R.C.M. 910(a)(1) (2008 ed.); see also
R.C.M. 910(a)(1)(B) (2019 ed.). The rule’s discussion then
goes on to state: “A plea of guilty to a lesser included offense
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Opinion of the Court
does not bar the prosecution from proceeding on the offense
as charged.” R.C.M. 910(a)(1) Discussion (2008 ed.). When
a guilty plea has been made and accepted, “a finding of
guilty of the charge or specification may . . . be entered im-
mediately without vote,” and “[t]his finding shall constitute
the finding of the court.” Article 45(b), UCMJ. It is this reg-
ulatory right to which Appellant cites when arguing that
the military judge erred by preventing him from pleading
guilty to noncapital offenses, resulting in structural error.
Under the doctrine of horizontal stare decisis, “an ap-
pellate court must adhere to its own prior decisions, unless
it finds compelling reasons to overrule itself.” United States
v. Andrews, 77 M.J. 393, 399 (C.A.A.F. 2018) (alteration in
original removed) (internal quotation marks omitted)
(quoting United States v. Quick, 74 M.J. 332, 343 (C.A.A.F.
2015) (Stucky, J., joined by Ohlson, J., dissenting)). How-
ever, “[a]pplying stare decisis is not an inexorable com-
mand, and we are not bound by precedent when there is a
significant change in circumstances after the adoption of a
legal rule, or an error in legal analysis.” Cardenas, 80 M.J.
at 423. “Stare decisis is most compelling where courts un-
dertake statutory construction as is the case here.” Blanks,
77 M.J. at 242 (internal quotations marks omitted).
To determine whether to depart from stare decisis, this
Court applies the following factors: “whether the prior de-
cision is unworkable or poorly reasoned; any intervening
events; the reasonable expectations of servicemembers;
and the risk of undermining public confidence in the law.”
Id. (citation omitted) (internal quotation marks omitted).
“The party requesting that we overturn precedent bears a
substantial burden of persuasion.” Andrews, 77 M.J. at 399
(citation omitted) (internal quotation marks omitted). In
addition, a “party must present a ‘special justification’ for
us to overrule prior precedent.” Blanks, 77 M.J. at 242
(quoting Kimble v. Marvel Ent., LLC, 576 U.S. 446, 456
(2015)).
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C. Discussion
On its face, Dock controls the disposition of the instant
issue and Appellant has not met his burden of persuading
us that Dock should be overturned. First, although reason-
able minds could differ about whether Dock was poorly rea-
soned, and although there is little case law that demon-
strates military courts’ application of Dock,22 its holding is
not unworkable. Indeed, the military judge’s analysis in
Appellant’s case exemplifies this point. She applied Dock
without difficulty and persuasively reasoned that if Appel-
lant were permitted to plead guilty to unpremeditated
murder and attempted premeditated murder, under the
facts of this case, “[i]t would be possible for [Appellant] to
be convicted of the charged capital offense without present-
ing any additional evidence.” Similarly, the military judge
readily identified that accepting pleas of guilty from Appel-
lant to unpremeditated murder and attempted unpremed-
itated murder where “the factual predicate in this particu-
lar case [was] the killing of 13 people over a period of
time . . . would be the factual equivalent to pleading guilty
to a capital offense in violation of Article 45 of the [UCMJ].”
Appellant complains that “[a]t the time of a guilty plea,
the record’s ‘four corners’ have not yet been developed.” Ap-
pellant’s Brief at 113. However, this point is of little con-
cern. Article 45(a) states in pertinent part, “[i]f an accused
. . . after a plea of guilty sets up matter inconsistent with
the plea, . . . a plea of not guilty shall be entered in the
22 In United States v. Simoy, 46 M.J. 592, 620 (A.F. Ct. Crim.
App. 1996), rev’d in part on other grounds 50 M.J. 1 (C.A.A.F.
1998), the United States Air Force Court of Criminal Appeals
found that the military judge did not abuse his discretion by
applying Dock to prohibit the appellant’s pleas of guilty to
conspiracy to commit robbery, attempted murder, and armed
robbery in a capital felony murder case due to the “substantial
risk” that Article 45(b) might be violated. However, as Appellant
highlights, at trial in this case the Government argued that
Simoy is “an anomaly in Article 45(b) jurisprudence and has
little precedential value.” Reply Brief at 51 (internal quotation
marks omitted).
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Opinion of the Court
record, and the court shall proceed as though he had
pleaded not guilty.” In essence, military judges have a duty
to correct a guilty plea, so they are obligated to correct
guilty pleas entered in contravention of Article 45(b). Ap-
pellant also complains that an accused would have no re-
course “if, after the record develops, there is no de facto
plea.” Appellant’s Brief at 113. However, an accused in that
position would have appellate recourse.
Second, we reject Appellant’s argument that our prece-
dent in Dock should be overturned because McCoy’s pur-
ported constitutional right of autonomy to concede guilt at
trial constitutes an “intervening event.” As we have ex-
plained, the holding of McCoy dealt with a different prob-
lem than the one allegedly present in this case—that of
counsel overriding a criminal defendant’s choice to plead
not guilty as opposed to the sovereign’s ability to compel a
criminal defendant to plead not guilty. 138 S. Ct. at 1505.
Therefore, McCoy does not serve as an intervening event
that would undermine Dock.
Third, it is unclear whether the expectations of service-
members would be undermined if we were to overrule
Dock. Cf. Quick, 74 M.J. at 337 (noting in the context of the
authority of Courts of Criminal Appeals to order sentence-
only rehearings that “it is difficult to quantify the expecta-
tions of servicemembers”). However, servicemembers theo-
retically have relied on this Court’s Article 45(b) de facto
guilty plea precedents, like Dock, to protect their right to
not be induced into pleading guilty in capital cases, as this
right “has become an established component of the military
justice system.” Id.Fourth, contrary to Appellant’s contention, we believe
that departing from Dock would undermine the public’s
confidence in the law. Dock has been binding precedent of
this Court for thirty-four years, and in turn, it is based on
a sixty-five-year precedent—McFarlane. This Court has
observed that: “Just as overturning precedent can under-
mine confidence in the military justice system, upholding
precedent tends to bolster [the public’s] confidence in the
law.” Andrews, 77 M.J. at 401.
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Also, the Supreme Court has recognized that “long con-
gressional acquiescence . . . enhance[s] even the usual prec-
edential force we accord to our interpretations of statutes.”
Watson v. United States, 552 U.S. 74, 82-83 (2007) (citation
omitted) (internal quotation marks omitted). For many
years, Congress did not disturb Dock’s de facto guilty plea
interpretation of Article 45(b). Although Congress recently
amended Article 45(b), it did so only for cases referred to
courts-martial on or after January 1, 2019. National De-
fense Authorization Act for Fiscal Year 2017, Pub. L. No.
114-328, § 5542(a), (c)(2), 130 Stat. 2000, 2967-68 (2016).
That the legislative body with the constitutional power to
make rules for the armed forces chose to not retroactively
apply that amendment to Article 45(b) is a factor that
members of the public would consider in assessing their
confidence in the law. See Middendorf, 425 U.S. at 43 (“we
must give particular deference to the determination of Con-
gress, made under its authority to regulate the land and
naval forces”).
Thus, these factors weigh against overruling Dock.
However, even if we were to hold that Dock was wrongly
decided and that Article 45(b)’s prohibition against an ac-
cused pleading guilty to a lesser included offense is con-
trary to the plain language of Article 45(b), UCMJ, Appel-
lant is entitled to no relief because he suffered no prejudice
under either the harmlessness standard or the harmless-
ness beyond a reasonable doubt standard.23 Indeed,
23 Appellant argues that if Dock was wrongly decided, the
military judge’s error in refusing to take Appellant’s guilty pleas
to lesser included offenses was structural error because the mil-
itary judge’s refusal infringed on his protected autonomy inter-
ests recognized in McCoy. However, as discussed above, we have
determined that McCoy does not disturb Dock. Also, structural
errors “affect the entire conduct of the [proceeding] from begin-
ning to end” while “discrete defects in the criminal pro-
cess . . . are not structural because they do not necessarily ren-
der a criminal trial fundamentally unfair or an unreliable
vehicle for determining guilt or innocence.” Greer v. United
States, 141 S. Ct. 2090, 2100 (2021) (first alteration in original)
(citations omitted) (internal quotation marks omitted).
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Opinion of the Court
application of a prejudice analysis results in an unequivo-
cal result: Appellant was not prejudiced by the military
judge’s application of Article 45(b).
With regard to findings, even if the military judge
should have allowed Appellant to plead guilty to the lesser
included offenses, Appellant could not have been preju-
diced by this alleged error because the only result was that
Appellant’s guilt was subjected to adversarial testing. And
through that testing, Appellant was found guilty.
With regard to sentencing, although we recognize in a
capital case an accused may benefit from pleading guilty as
part of a concerted effort to accept responsibility and to
demonstrate contrition for his or her heinous criminal con-
duct, that scenario simply does not apply here. Appellant
demonstrated no remorse during his opening statement
and did not put on a sentencing case or give a sentencing
argument. And importantly, he went so far as to affirma-
tively reject the military judge’s offer to instruct the panel
members that he attempted to plead guilty but was not per-
mitted to do so by operation of law. Under these circum-
stances, we conclude that even if the military judge’s appli-
cation of Dock constituted error, Appellant experienced no
prejudice.
Consistent with these definitions, prohibiting an accused from
pleading guilty is not a structural error. Furthermore, the Su-
preme Court has stated that “[o]nly in a ‘very limited class of
cases’ has the Court concluded that an error is structural, and
‘thus subject to automatic reversal’ on appeal.” Id. at 2099-2100
(quoting Neder, 527 U. S. at 8). And in Matthews, 16 M.J. at 363,
a case that predated Dock, this Court’s predecessor applied a
prejudice analysis to a military judge’s refusal to accept a plea
to premeditated murder and rape in a capital case, thereby
demonstrating in an analogous situation, that we have not con-
sidered the prohibition of a guilty plea to a capital offense to con-
stitute structural error.
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Issue VI: Whether the Prosecutor’s Sentencing Ar-
gument Impermissibly Invited the Panel to Make
its Determination on Caprice and Emotion24
Appellant asserts that the trial counsel engaged in pros-
ecutorial misconduct during his sentencing argument. Spe-
cifically, Appellant cites the trial counsel’s reference to a
victim’s pregnancy at the time of the shooting, his pur-
ported appeal to the members’ emotions, and his use of
first-person plural pronouns while addressing the mem-
bers. For the reasons provided below, we conclude that Ap-
pellant is not entitled to the new sentencing hearing which
he seeks.
I. Background
Over Appellant’s objection at trial, the military judge
admitted evidence that Private E-2 (PV2) FV, one of the
soldiers whom Appellant had killed, was pregnant at the
time of the offense.25 Specifically, in order to establish that
Appellant acted with premeditation when he killed her, the
Government offered evidence that Appellant shot PV2 FV
after she screamed “My baby! My baby!”26 The military
judge ruled that PV2 FV’s shouts of “My baby!” were
admissible as res gestae evidence.27 In the course of doing
24 This issue was not raised before the ACCA.
25 The Government did not charge Appellant with the unborn
child’s death.
26 In essence, the trial counsel’s argument was as follows:
PV2 FV’s pleas of “My baby! My baby!” were intended to com-
municate, “Don’t shoot me. I’m pregnant.” The fact that Appel-
lant shot PV2 FV after this plea showed that the act was pre-
meditated.
27 Res gestae is defined as “[t]he events at issue, or other
events contemporaneous with them.” Black’s Law Dictionary
1565 (11th ed. 2019). This Court has explained, “Res gestae
evidence is vitally important in many trials. It enables the
factfinder to see the full picture so that the evidence will not be
confusing and prevents gaps in a narrative of occurrences which
might induce unwarranted speculation.” United States v. Metz,
34 M.J. 349, 351 (C.M.A. 1992) (footnote omitted) (citation
omitted).
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so, she conducted a Military Rule of Evidence 403
balancing test.
In its opening statement, the Government drew
attention to PV2 FV’s screams of “My baby, my baby.”
Likewise, during the merits phase of the trial, various
witnesses of the shooting testified that they heard her
shouts. PV2 FV’s supervisor and a medical examiner also
testified, and they confirmed that PV2 FV was pregnant at
the time of the attack.
After Appellant was convicted, PV2 FV’s father was
called as a witness during the Government’s sentencing
case. He testified in relevant part: “That man did not just
kill 13 [people]—he killed 15. He killed my [unborn] grand-
son, and he killed me, slowly.” Additionally, the Govern-
ment placed PV2 FV’s pregnancy into evidence at sentenc-
ing by recalling her supervisor to testify to his efforts to
keep her in Iraq, where she had been deployed, after learn-
ing of her pregnancy.
During the Government’s sentencing argument, trial
counsel summarized the lives of the victims Appellant
killed, how they died, and their loved ones’ discovery of
their deaths. In this context, trial counsel said the follow-
ing about PV2 FV:
[PV2 FV] —a mother’s thoughts [sic] not for her-
self, not for her own life, but for that of her unborn
child. [PV2 FV], 21, whose final words were, “My
baby! My baby!” A single bullet punctured her
lungs and her heart; a single bullet ended her life,
and that of her unborn child, and broke her fa-
ther’s heart.
Death is fickle. A single bullet—two lives lost, and
a father’s changed forever.
Trial counsel later emphasized, “[Appellant] ignored pleas
for help, cries of terror, the cries of a mother.” (Emphasis
added.)
Counsel concluded the Government’s sentencing argu-
ment as follows:
For his crimes, he should forfeit his life.
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Opinion of the Court
There is a price to be paid for the mass murder he
perpetrated on 5 November. There is a price to be
paid for what he did, for the lives he took, the lives
he horrifically changed, and the pain and sorrow
he wrought.
You should, however, have mercy in your sen-
tence. It should speak to the 13 souls who have de-
parted our formation. You should reserve your
emotion for their souls, and your compassion for
their families, and your mercy for their memory.
For the accused, he should be given an accounting;
he should be given a reckoning—a reckoning for
his crimes, and for his crimes, he should pay a
price.
. . . He will never be a martyr because he has noth-
ing to give.
Do not be misled. Do not be confused. Do not be
fooled. He is not giving his life. We are taking his
life. This is not his gift to God; this is his debt to
society. This is not a charitable act; this is the cost
of his murderous rampage. He will not now, and
he never will be, a martyr. He is a criminal. He is
a cold-blooded murderer. On 5 November, he did
not leave this earth; he remained to pay a price.
He remained to pay a debt—the debt he owes is
his life.
(Emphasis added.)
At no time did Appellant object to the Government’s
sentencing argument, and he did not present a sentencing
case or argument of his own.
Subsequently, the military judge instructed the
members that Appellant “is to be sentenced only for the
offenses of which he has been found guilty.” She later
added, “You are advised that the arguments of the trial
counsel, and his recommendations, are only his individual
suggestions, and may not be considered as the
recommendation or opinion of anyone other than such
counsel.” The military judge continued:
You also heard testimony from the father of one of
the victims that he and his unborn grandchild
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Opinion of the Court
were victims of the accused’s crimes. You may
only consider this as evidence of the emotional im-
pact on the victim’s family. You must bear in mind
that the accused is to be sentenced only for the of-
fenses of which he has been found guilty.
Appellant now argues that “[t]he gratuitous and re-
peated references to a victim’s pregnancy” as well as “the
specific call to the panel to use their emotion for those who
have left ‘our formation’ ” amounted to improper argument
and constituted plain error. Appellant’s Brief at 117. Ap-
pellant also argues that the trial evidence of PV2 FV’s preg-
nancy was unnecessary for its professed purpose—to prove
premeditation—and that most such references were irrele-
vant. He alleges that “the government repeatedly put her
pregnancy in evidence in a calculated and impermissible
effort to emotionally charge the panel,” so that trial counsel
could “circle[] back during sentencing to” argue a “ ‘single
bullet—two lives lost.’ ” Id. at 126.
In response, the Government argues that “trial counsel
fairly and appropriately argued the aggravating factors
from evidence adduced at trial.” Appellee’s Brief at 94. Spe-
cifically, the Government contends that it was fair and ac-
curate commentary for trial counsel to note during sentenc-
ing argument that Appellant had killed a pregnant woman
and her unborn child. Furthermore, the Government as-
serts that the trial counsel did not “impermissibly invite
the panel to impose the death penalty based on sheer emo-
tion,” and that it was not erroneous for the trial counsel to
use first-person personal pronouns in the context which he
did. Id. at 99.
In the alternative, the Government asserts that if any
of the trial counsel’s sentencing arguments constituted er-
ror, those errors were harmless. In support of this position,
the Government contends that the severity of any miscon-
duct was minimal, the military judge’s sentencing instruc-
tions cured any error, and “the egregiousness of Appellant’s
crimes and the great weight of the evidence supporting
[his] sentence demonstrate that any error in the sentencing
argument was not prejudicial.” Id. at 105. Thus, the
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Government argues, even “if this Court finds error, it
should still be confident that Appellant was sentenced on
the basis of the evidence alone.” Id. at 94.
II. Standard of Review
When an appellant challenges trial counsel’s sentencing
argument for the first time on appeal, this Court reviews
for plain error. United States v. Norwood, 81 M.J. 12, 19
(C.A.A.F. 2021). Under this standard of review, an appel-
lant ordinarily bears the burden not only of establishing
that there is error and that the error is clear or obvious, but
also that the error materially prejudices a substantial
right. Id. at 19-20. However, in those instances where a
clear or obvious error rises to the level of a constitutional
violation, the burden shifts to the government to “show
that the error was harmless beyond a reasonable doubt.”
Tovarchavez, 78 M.J. at 462 n.6.
III. Applicable Law
Under this Court’s precedent:
Prosecutorial misconduct occurs when trial
counsel overstep[s] the bounds of that propriety
and fairness which should characterize the con-
duct of such an officer in the prosecution of a crim-
inal offense. Prosecutorial misconduct can be gen-
erally defined as action or inaction by a prosecutor
in violation of some legal norm or standard, e.g., a
constitutional provision, a statute, a Manual rule,
or an applicable professional ethics canon.
United States v. Hornback, 73 M.J. 155, 159-60 (C.A.A.F.
2014) (alteration in original) (citations omitted) (internal
quotation marks omitted). “During sentencing argument,
‘the trial counsel is at liberty to strike hard, but not foul,
blows.’ ” United States v. Halpin, 71 M.J. 477, 479
(C.A.A.F. 2013) (quoting United States v. Baer, 53 M.J. 235,
237 (C.A.A.F. 2000)). Trial counsel may “argue the evi-
dence of record, as well as all reasonable inferences fairly
derived from such evidence,” but “may not . . . inject his
personal opinion into the panel’s deliberations, inflame the
members’ passions or prejudices, or ask them to convict the
accused on the basis of criminal predisposition.” United
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States v. Sewell, 76 M.J. 14, 18 (C.A.A.F. 2017) (citations
omitted) (internal quotation marks omitted).
Trial counsel’s argument must be “ ‘viewed in context’ ”
because “it is improper to ‘surgically carve’ out a portion of
the argument with no regard to its context.” Baer, 53 M.J.
at 238 (citations omitted); see also id. (“ ‘If every remark
made by counsel outside of the testimony were ground for
a reversal, comparatively few verdicts would stand, since
in the ardor of advocacy, and in the excitement of trial,
even the most experienced counsel are occasionally carried
away by this temptation.’ ” (quoting Dunlop v. United
States, 165 U.S. 486, 498 (1897))).
In capital cases, “[t]he penalty phase . . . is undertaken
to assess the gravity of a particular offense and to deter-
mine whether it warrants the ultimate punishment.”
Monge v. California, 524 U.S. 721, 731-32 (1998). The Su-
preme Court has long recognized that “capital sentencing
must be reliable, accurate, and nonarbitrary.” Saffle v.
Parks, 494 U.S. 484, 493 (1990). In this regard, “ ‘[i]t is of
vital importance’ that the decisions made in that context
‘be, and appear to be, based on reason rather than caprice
or emotion.’ ” Monge, 524 U.S. at 732 (quoting Gardner v.
Florida, 430 U.S. 349, 358 (1977)).
“In the plain error context, we determine whether the
cumulative effect of an improper sentencing argument im-
pacted ‘the accused’s substantial rights and the fairness
and integrity of his trial.’ ” Akbar, 74 M.J. at 394 (quoting
Halpin, 71 M.J. at 480). To perform this inquiry, we “ex-
amine[] ‘whether trial counsel’s comments, taken as a
whole, were so damaging that we cannot be confident that
the appellant was sentenced on the basis of the evidence
alone.’ ” Id. (quoting Halpin, 71 M.J. at 480). In assessing
prejudice for improper sentencing argument, this Court
“balance[s (1)] the severity of the improper argument,
[(2)] any measures by the military judge to cure the im-
proper argument, and [(3)] the evidence supporting the
sentence.” United States v. Marsh, 70 M.J. 101, 107
(C.A.A.F. 2011) (citing United States v. Erickson, 65 M.J.
221, 224 (C.A.A.F. 2007)). This Court has “reiterat[ed] that
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in cases of improper argument, each case must rest on its
own peculiar facts.” Baer, 53 M.J. at 239.
IV. Discussion
As an initial matter, we reject Appellant’s contention
that the military judge erred by admitting into evidence
the fact that PV2 FV was pregnant and that she shouted
“My baby! My baby!” The evidence of PV2 FV’s pregnancy
and her screams was properly admitted as res gestae.28 The
witnesses of the shooting who testified they heard PV2
FV’s shouts were merely relaying to the members their ob-
servations. The only potentially problematic witnesses
were PV2 FV’s supervisor who testified as to her reason for
redeployment, and the medical examiner who confirmed
her pregnancy. However, the supervisor’s testimony was
relevant for the purpose of explaining why PV2 FV was at
the Soldier Readiness Processing center on November 5,
and the medical examiner’s testimony merely confirmed
what the members had already heard—that PV2 FV was
pregnant.
Moreover, regardless of the merits of admitting this ev-
idence during findings, in the context of the issue presented
we note that PV2 FV’s pregnancy was relevant for sentenc-
ing as evidence in aggravation. R.C.M. 1001(b)(4) (2008
ed.) states in part: “Evidence in aggravation includes, but
is not limited to, evidence of financial, social, psychological,
and medical impact on or cost to any person or entity who
was the victim of an offense committed by the accused.”29
And “it is appropriate for trial counsel ‘to argue the evi-
dence of record, as well as all reasonable inferences fairly
28 We acknowledge that the alternative rationale provided by
the Government for why this evidence was admissible seems to
be a closer call, but there is an insufficient basis for us to con-
clude that the military judge abused her discretion by admitting
this evidence for “the limited purpose of its relevance, if any, to
premeditation and the intent to kill.”
29 R.C.M. 1004(b) (2008 ed.) provides that “the provisions [of]
R.C.M. 1001” apply to capital cases.
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derived from such evidence.’ ” Sewell, 76 M.J. at 18 (quot-
ing Baer, 53 M.J. at 237).
Appellant contends that trial counsel’s “multitude [of]
references to PV2 FV’s pregnancy” was “a calculated and
impermissible effort to emotionally charge the panel” and
constituted prosecutorial misconduct in sentencing argu-
ment. Appellant’s Brief at 126. However, “[v]ictim impact
testimony is admissible in capital cases to inform the panel
about ‘the specific harm caused by [the accused].’ ” Akbar,
74 M.J. at 393 (second alteration in original) (quoting
Payne v. Tennessee, 501 U.S. 808, 825 (1991)). And the
death of her unborn child was “directly relat[ed] to or re-
sult[ed] from” the offense of PV2 FV’s killing, of which Ap-
pellant was convicted. R.C.M. 1001(b)(4) (2008 ed.).
Additionally, Appellant’s claim that “the members were
led to believe there was an unnamed, fourteenth victim on
the charge sheet,” is unpersuasive. Appellant’s Brief at
126. As a general matter, the military judge instructed the
panel that Appellant was “to be sentenced only for the of-
fenses of which he has been found guilty,” and there was
no “fourteenth victim” whom Appellant was found guilty of
killing. Moreover, the members were explicitly instructed
by the military judge that, despite the testimony of PV2
FV’s father that “he and his unborn grandchild were vic-
tims” of Appellant’s crimes, the members could “only con-
sider this as evidence of the emotional impact on the vic-
tim’s family . . . . [And were required to] bear in mind that
the accused is to be sentenced only for the offenses of which
he has been found guilty.” Absent evidence to the contrary,
we presume the members understood and followed the mil-
itary judge’s instructions on this issue. See United States v.
Piolunek, 74 M.J. 107, 111 (C.A.A.F. 2015). For these rea-
sons, trial counsel did not commit misconduct by referenc-
ing PV2 FV’s pregnancy during his sentencing argument.
Appellant also contends that it was error for the trial
counsel to argue: “You should reserve your emotion for [the
victims’] souls, and your compassion for their families, and
your mercy for their memory.” Appellant asserts that this
was an improper appeal to emotion that is impermissible
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during sentencing. Although it is true that the trial counsel
used the term “emotion” during this portion of his sentenc-
ing argument, it cannot be said that he improperly urged
the panel members to use their emotions when devising a
proper sentence for Appellant. To the contrary, the trial
counsel urged the panel members to “reserve” their emo-
tions for other purposes, and he grounded his overall sen-
tencing argument on the following proposition: “[M]embers
of the panel, because of what [Appellant] did, because of
who he did it to, because of where he did it, and because of
when he did it, the just and appropriate sentence in this
case is death.” (Emphasis added.) Stated differently, the
trial counsel asked the panel members to sentence Appel-
lant “for his crimes.” Thus, in its totality, this line of argu-
ment was appropriate.30
Finally, we will assume without deciding for purposes
of this appeal that trial counsel’s use of first-person plural
pronouns (“our” and “we”) were improper when he referred
to Appellant’s victims as those “who have departed our for-
mation” and when he stated “we are taking his life.” (Em-
phasis added.) See People v. Wheeler, 871 N.E.2d 728, 748
(Ill. 2007) (“[I]t is improper for a prosecutor to utilize clos-
ing argument to forge an ‘us-versus-them’ mentality that is
inconsistent with the criminal trial principle that a jury
fulfills a nonpartisan role . . . .”).
Turning to the issue of prejudice, we will assume with-
out deciding that—because this was a capital case—the
trial counsel’s improper arguments were of a constitutional
30 Appellant also argues that the context of the Government’s
sentencing argument included “heavy undertones of war.” Ap-
pellant’s Brief at 129. However, we agree with the Government
that it was Appellant who set this tone in his opening statement,
making such remarks as, “And the dead bodies will testify that
war is an ugly thing,” and “[t]he evidence will show . . . that I
was on the wrong side [of] America’s war on Islam. But then I
switched sides.” Under these circumstances, to the extent the
Government’s sentencing argument contained “undertones of
war,” we find such commentary was not impermissible within
the context of the entire proceedings.
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dimension.31 As a consequence, the Government has the
burden of proving “the error was harmless beyond a rea-
sonable doubt . . . on plain error review.” United States v.
Palacios Cueto, 82 M.J. 323, 334 (C.A.A.F. 2022).
For the following reasons, we conclude that the Govern-
ment has met this burden. First, the record before us
demonstrates that this improper argument was isolated,
and it was not severe. See Norwood, 81 M.J. at 20 (finding
no severe conduct where the improper argument “only
made up a few lines of [the] rebuttal argument”). Second,
although the military judge did not take any measures to
cure these fleeting improper comments, the evidence
properly before the panel members included many aggra-
vating circumstances such as Appellant’s murder of thir-
teen active duty or retired soldiers, his attempted murder
of thirty-two other people (many of whom were grievously
wounded), and the violation of the oaths he had taken as
both an Army officer and a physician. See Akbar, 74 M.J.
at 394. This evidence in aggravation was particularly dam-
aging to Appellant’s case in light of the fact that he offered
no evidence in extenuation or mitigation, and he delivered
no sentencing argument to the panel members.
Because of the relevant law and the facts of this case,
we conclude that Appellant is not entitled to a new sentenc-
ing hearing.
Issue VII: Whether the Continued Forcible Shaving
of Appellant Is Punishment in Excess of the
Sentence He Received at His Court-Martial and
Violated Article 55 and the Eighth Amendment
Appellant identifies as “a devout Muslim who earnestly
believes that the wearing of a beard is an important tenet
of his faith.” Appellant’s Brief at 130. Appellant asserts in
his briefs that he was forcibly shaved before and after trial
31 As Appellant emphasizes in his brief, “Some courts have
tested improper arguments in capital cases for constitutional er-
ror because such error implicates an accused’s Eighth Amend-
ment right to a reliable death judgment.” Appellant’s Brief at
124 (citing Duckett v. Mullin, 306 F.3d 982, 992 (10th Cir. 2002)).
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and that he was punished by personnel at the U.S.
Disciplinary Barracks (USDB) for defying orders to shave.
According to Appellant, these alleged forcible shavings
violated Article 55, UCMJ,32 and the Eighth Amendment
of the Constitution which prohibit the infliction of cruel
and unusual punishment, violated the prohibition against
imposing punishment in excess of that adjudged at trial,
and violated the Religious Freedom Restoration Act
(RFRA),33 which prohibits the government from
“imping[ing] on the free exercise of religion without having
a compelling governmental interest in doing so.” Id. at 130.
We are not persuaded.
I. Background
After Appellant’s sentence was adjudged on August 28,
2013, he periodically filed requests for exemptions to the
grooming standards under the applicable Army regulations
on religious grounds. For example, in September of 2013,
Appellant asked for an exception to the grooming policy be-
cause of his religious beliefs as a practicing Muslim. The
Deputy Chief of Staff of the Army denied Appellant’s re-
quest. In his memorandum to Appellant, Lieutenant Gen-
eral (LTG) Bromberg stated: “Though an inmate, you none-
theless interact with Soldiers who abide by these
standards, and who know that you are an officer. Granting
you an exception would erode the values, discipline, and
team identity that arises from the even-handed application
of grooming standards throughout the Army.”
In December of 2016, Appellant submitted another re-
quest for an exemption from the grooming policy. After
meeting with Appellant, a military chaplain wrote in a
memorandum-for-record that although there is no religious
law requiring Muslim men to wear beards, many Muslim
men regard it as an important religious practice. The mili-
tary chaplain also determined that Appellant’s request
32 10 U.S.C. § 855 (2012).
33 42 U.S.C. §§ 2000bb to 2000bb-4 (2012).
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appeared to stem from Appellant’s “genuine religious belief
and personal understanding of his faith.” Appellant’s re-
quest on that occasion was denied—in accordance with the
recommendations of Appellant’s chain of command—by the
Senior Official Performing the Duties of the Assistant Sec-
retary of the Army (Manpower and Reserve Affairs).
As of July 19, 2021, however, Appellant has been al-
lowed to wear a beard in observance of his Islamic faith,
but it must be no longer than a quarter inch in length. Ap-
pellant claims in his briefs that because he wants to let his
beard grow longer than the authorized length in order to
follow his sincerely held religious beliefs, he is forcibly
shaved every other week. He also claims that every time he
is forcibly shaved “he receives further demerits and is de-
nied benefits as a result.” Appellant’s Brief at 147.
II. Discussion
Appellant’s Article 55 and Eighth Amendment claims
fail for the crucial reason that the record before us is devoid
of any evidence that Appellant has, in fact, been forcibly
shaved. The relevant portion of the record only contains
documents related to Appellant’s requests for an exception
to the Army’s grooming policy and the subsequent denials
of those requests. Thus, we are forced to rely solely on the
appellate defense counsel’s bare representations by
“information and belief” that Appellant was forcibly
shaved. Appellant’s Brief at 135, 137. But we note that in
prior litigation pertaining to Appellant’s desire to grow a
beard, we stated the following: “[Appellant’s] commander
denied his request [to grow his beard] and directed him to
comply with the Army’s grooming standards, but took no
further action to enforce Appellant’s compliance.” Hasan v.
Gross, 71 M.J. 416, 417 (C.A.A.F. 2012) (emphasis added).
We further note that Appellant appeared at a pretrial
session with a beard, and the military judge’s order to
shave was vacated. Id. at 419. Therefore, in the instant
appeal the defense’s failure to document in the record that
Appellant was forcibly shaved is factually significant and
legally consequential.
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Moreover, although in their briefs the defense counsel
claim by “information and belief” that Appellant was forci-
bly shaved, they provide no information or description
about what these “forcible” shavings allegedly entailed.
Thus, even if we were to assume that the alleged forcible
shavings did in fact occur, in light of the record before us
we have no basis to divine whether the “force” complained
of consisted merely of Appellant’s involuntary acquiescence
to the Army’s grooming policy as he unwillingly shaved
himself, or whether the alleged incidents of forcible shav-
ing involved some type of physical coercion by USDB per-
sonnel. Because the record does not contain this crucial ev-
idence, we find no proper basis to provide relief to
Appellant.34 See United States v. Ellis, 47 M.J. 20, 22
(C.A.A.F. 1997) (finding appellant was not entitled to relief
as there was “no evidence” to support his claim and this
Court had “only the arguments of appellate counsel”).
Similarly, Appellant’s argument that we should remand
this case to the ACCA because the lower court erred in con-
ducting its sentence appropriateness review is unavailing.
Courts of Criminal Appeals are empowered to review
prison condition claims “if the record contains information
about those conditions.” United States v. Willman, 81 M.J.
355, 358 (C.A.A.F. 2021) (internal quotation marks omit-
ted) (quoting United States v. Jessie, 79 M.J. 437, 441
(C.A.A.F. 2020)). And an appellant can properly add mate-
rial to the record about prison conditions in the course of
filing a clemency petition with the convening authority. See
Jessie, 79 M.J. at 444. But here, Appellant did not present
to the convening authority any claim regarding confine-
ment facility policies, despite submitting a 450-page hand-
written clemency submission. Therefore, nothing in the rec-
ord before the ACCA raised an issue regarding the pur-
ported shavings. Accordingly, the ACCA did not err in
34 For the reasons stated in his concurrence in United States
v. Pullings, 83 M.J. 205, 214-22 (C.A.A.F. 2023) (Hardy, J., con-
curring in the judgment), Judge Hardy agrees that Appellant is
not entitled to relief on his Article 55 and Eighth Amendment
claims.
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Opinion of the Court
declining to provide relief to Appellant. See Willman, 81
M.J. at 361 (“This Court has never held, or even suggested,
that outside-the-record materials considered to resolve an
appellant’s cruel and unusual punishment [or unlawful in-
crease in sentence] claims became part of the entire record”
for sentence appropriateness claims.).
Additionally, Appellant’s claim that the denial of his re-
quested exception from the Army’s grooming policy unlaw-
fully increased his sentence cannot succeed because the
shaving requirement was a “collateral administrative con-
sequence[] of a sentence” rather than “punishment for pur-
poses of the criminal law.” United States v. Guinn, 81 M.J.
195, 200 n.3 (C.A.A.F. 2021) (internal quotation marks
omitted) (quoting United States v. Pena, 64 M.J. 259, 265
(C.A.A.F. 2007)). And similar to our analysis above in the
context of Article 55 and the Eighth Amendment, Appel-
lant’s related claim that being forcibly shaved unlawfully
increased his sentence does not merit scrutiny because he
has not documented this assertion in the record.
To the extent the record before us does document the
rejection of Appellant’s requests for a religious accommo-
dation from the Army’s beard policy, and to the extent
these rejections rise to the level of a RFRA violation, Ap-
pellant still is not entitled to relief from this Court. Simply
stated, stand-alone RFRA claims and the resulting denial
of prison privileges are not justiciable in this Court because
our statutory mandate does not extend to the resolution of
such matters. See Article 67(c), UCMJ (2012) (limiting re-
view “with respect to the findings and sentence” of a court-
martial).
To the extent that Appellant seeks to argue that a
RFRA violation automatically constitutes an Article 55
and/or Eighth Amendment violation—both of which are
justiciable in this Court—we note that the analytical
frameworks are different. Compare United States v. Ster-
ling, 75 M.J. 407, 415 (C.A.A.F. 2016) (“To establish a
prima facie RFRA defense, an accused must show by a pre-
ponderance of the evidence that the government action
(1) substantially burdens (2) a religious belief (3) that [the
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Opinion of the Court
accused] sincerely holds.”), and 42 U.S.C. § 2000bb-1(a)
(generally prohibiting the government from “substantially
burden[ing] a person’s exercise of religion”), with United
States v. Lovett, 63 M.J. 211, 215 (C.A.A.F. 2006) (stating
that for Article 55 or Eighth Amendment claims, an appel-
lant must show “(1) an objectively, sufficiently serious act
or omission resulting in the denial of necessities; (2) a cul-
pable state of mind on the part of prison officials amount-
ing to deliberate indifference to [his] health and safety; and
(3) that he has exhausted the prisoner-grievance system
. . . and that he has petitioned for relief under Article 138,
UCMJ” (alteration in original) (footnotes omitted) (internal
quotation marks omitted)).
As a result, even if we were to assume that Appellant’s
rights under RFRA were violated, that fact standing alone
does not serve as a sufficient basis to conclude that his
Eighth Amendment and Article 55 claims are meritorious.
Stated differently, we do not adopt Appellant’s apparent
argument that the alleged RFRA violation here—the de-
nial of an exception to the Army’s grooming policy—was,
standing alone, “an objectively, sufficiently serious act or
omission resulting in the denial of necessities” that auto-
matically constituted a violation of the Eighth Amend-
ment. Lovett, 63 M.J. at 215. As highlighted by the Govern-
ment in its brief, the defense has pointed to no federal court
decision that has predicated an Eighth Amendment viola-
tion upon a deprivation of religious liberty. Indeed, as the
Ninth Circuit opined, “[A]n institution’s obligation under
the [E]ighth [A]mendment is at an end if it furnishes sen-
tenced prisoners with adequate food, clothing, shelter, san-
itation, medical care, and personal safety.” Hoptowit v.
Ray, 682 F.2d 1237, 1246 (9th Cir. 1982) (first alteration in
original) (citation omitted) (internal quotation marks omit-
ted). We also emphasize that Appellant has not demon-
strated “a culpable state of mind” from prison officials that
amounts to “deliberate indifference” to his health and
safety. Lovett, 63 M.J. at 215. At bottom, Appellant needed
to show more to succeed on this claim on appeal, and he
failed to do so.
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In sum, in light of the absence of any evidence to sup-
port Appellant’s assertions that he was forcibly shaved, Ap-
pellant is not entitled to relief on his Article 55 and Eighth
Amendment claims. Further, in terms of Appellant’s argu-
ment that the requirement to comply with the Army’s
grooming policy constituted punishment in excess of his
sentence, that claim fails because the shaving requirement
was a collateral administrative consequence of Appellant’s
sentence. And finally, Appellant’s stand-alone RFRA claim
is not justiciable by this Court because resolving such an
issue would extend beyond this Court’s statutory mandate.
Issue VIII: Whether Appellant Was Deprived [of]
His Right to Counsel During Post-Trial Processing35
Although initially represented by counsel during the
clemency process, Appellant ultimately opted to represent
himself during post-trial proceedings. He now asserts that
he was deprived of his right to counsel during this period.
In determining the merits of his claim, we will assume that
Appellant’s decision to proceed pro se during post-trial
clemency proceedings was valid only if he knowingly, vol-
untarily, and intelligently waived the right to counsel.
Upon doing so, we conclude that Appellant’s waiver was
valid.
I. Background
After Appellant was convicted of his offenses, the mili-
tary judge and standby counsel advised Appellant of his
post-trial rights. Key among these rights was Appellant’s
ability to submit matters for the convening authority’s con-
sideration when he was deciding whether to approve the
findings and sentence.
After his sentence was announced, Appellant stated
that he wanted one of his standby counsel, “Lieutenant
Colonel [KP],” to represent him during post-trial matters.
On January 29, 2015, an Article 39(a), UCMJ, session was
held to discuss Appellant’s post-trial representation. At
that session, Appellant reiterated his desire to have LTC
35 This issue was not raised before the lower court.
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KP serve as his post-trial representative. However, in his
brief before this Court, Appellant vaguely states that LTC
KP subsequently “left the case,” and a civilian defense
counsel entered an appearance. Appellant’s Brief at 148.
The staff judge advocate (SJA) subsequently prepared
an SJA recommendation (SJAR) advising the convening
authority to approve the adjudged sentence. In response,
the civilian defense counsel prepared to submit matters for
the convening authority’s consideration under R.C.M. 1105
and R.C.M. 1106. However, on February 13, 2017, shortly
before his post-trial submissions were due, Appellant pre-
sented a handwritten letter to the SJA stating:
Effective immediately, I Nidal Hasan the
accused . . . am representing myself soley [sic] in
the matter of the submission of post-trial matters
pursuant to Rules for Court-Martial (R.C.M.)
1105 and 1106. In this capacity my only
submission to the . . . convening authority . . . is a
piece entitled “Mans [sic] Duty to His Creator and
the Purpose of Life” . . . . Please don’t involve any
lawyers for as I have clearly stated above I am
representing myself and understand the
consequences. . . . The presiding judge (Colonel
[Osborn]) allowed me to represent myself during
the trial so you should not hesitate to do so now in
these post-trial matters.
The SJA responded to the letter by writing Appellant’s
civilian defense counsel:
Given that we have yet to receive any formal
notice of your release as counsel to the Accused, I
forward a copy of the Accused’s letter, enclosed, to
you and ask that you immediately clarify what
matters the Convening Authority should consider
before taking Action.
It has now been over a year since matters were
originally due in this case. I will advise the Con-
vening Authority to take initial Action. I ask that
you provide a response to this office on or before
March 2, 2017.
The civilian defense counsel’s response is not in the rec-
ord before us. However, in a reply letter from March 13,
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Opinion of the Court
2017, the SJA indicated she had received an email from the
civilian defense counsel on March 2. In that reply letter to
the civilian defense counsel, the SJA confirmed:
In accordance with the Accused’s and your re-
quest, the only post-trial defense matters the Con-
vening Authority will consider, prior to taking in-
itial Action, are: the Accused’s handwritten
manuscript . . .; and the Accused’s one-page hand-
written letter to the Staff Judge Advocate, dated
13 February 2017. These matters constitute the
entirety of the defense’s post-trial submission,
pursuant to RCM 1105 and 1106 and Article[s]
38(c) and 60 of the UCMJ.
According to Appellant, there is no indication that any
other pertinent communications occurred, whether
between the SJA and Appellant or between the SJA and
Appellant’s counsel, about waiving his post-trial right to
counsel.
Before this Court, Appellant now argues that the SJA
needed to inquire further into whether Appellant know-
ingly waived his right to counsel for post-trial proceedings.
Citing no legal authority, he asserts that this “inquiry
must, at the very least, naturally lie somewhere between
the thorough colloquy for waiver at trial and thorough ad-
visement on appeal.” Appellant’s Brief at 150. Appellant
maintains that the inquiry that actually occurred in this
case was insufficient to ensure that his purported waiver
of counsel in the post-trial period was “knowing, intelli-
gent, and voluntary” because the “SJA relied on a hand-
written note alleging waiver, made no follow up with coun-
sel or the [A]ppellant, and, in fact, continued to engage
with [the civilian defense counsel] as if [A]ppellant were
still represented.” Id. at 150-51.
II. Standard of Review
Whether the right to post-trial counsel was validly
waived is a question of law we review de novo. See Rosen-
thal, 62 M.J. at 262; Mix, 35 M.J. at 286. Although Appel-
lant raises this issue for the first time in this Court, the
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Opinion of the Court
parties are in agreement that this de novo standard of re-
view applies in this instance, and we concur.
III. Discussion
In prior cases, we have not identified any particular
standard that applies when an accused seeks to waive the
right to counsel and proceed pro se in the clemency process.
See United States v. Knight, 53 M.J. 340, 342 (C.A.A.F.
2000); cf. Mix, 35 M.J. at 286 (declining to “decide what
type of inquiry is required” to determine whether an ac-
cused may proceed pro se at trial). However, for purposes
of this appeal we will assume that an accused’s decision to
proceed pro se during post-trial clemency proceedings is
valid only if the accused knowingly, voluntarily, and intel-
ligently waived the right to counsel. See Faretta, 422 U.S.
at 835; see also Tovar, 541 U.S. at 87-88; Knight, 53 M.J. at
342 (requiring, at a minimum, that an accused’s waiver of
counsel during the post-trial stage of his or court-martial,
to include the submission of clemency matters, be “know-
ing”). This inquiry into whether a waiver was knowing, vol-
untary, and intelligent is case specific.
Similarly, in prior cases we have not clearly defined the
specific steps or inquiries that a military judge or a staff
judge advocate must make before an accused may validly
waive his or her right to post-trial counsel. See Mix, 35 M.J.
at 286 (declining to decide the “exact extent of the inquiry
necessary to ensure a knowing and intelligent waiver” of
counsel at trial by a military judge); cf. Tovar, 541 U.S. at
88 (“We have not, however, prescribed any formula or
script to be read to a defendant who states that he elects to
proceed without counsel.”). Rather, we have engaged in a
case specific review of the record to determine whether
there were sufficient indicia of a waiver of post-trial repre-
sentation.
Upon engaging in this inquiry in the instant case, we
conclude there are five key points which collectively
demonstrate that Appellant’s waiver of his right to counsel
was valid.
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First, the military judge advised Appellant on post-trial
matters, and Appellant signed a “Post-Trial and Appellate
Rights” form acknowledging that standby counsel had ad-
vised him of these rights. The record therefore shows that
Appellant knew his post-trial rights and their importance,
to include Appellant’s ability to submit matters for the con-
vening authority’s consideration when he was deciding
whether to approve the findings and sentence. Cf. United
States v. Palenius, 2 M.J. 86, 91-92 (C.M.A. 1977) (faulting
defense counsel for not advising the appellant of the “pow-
ers of the [the lower appellate court] and of the defense
counsel’s role in causing those powers to be exerted”).
Second, in a letter to the SJA, Appellant stated the fol-
lowing: “Effective immediately, I . . . am representing my-
self . . . . Please don’t involve any lawyers for as I have
clearly stated above I am representing myself and under-
stand the consequences . . . .” (Emphasis added.)36 Appel-
lant further wrote, “The presiding judge (Colonel [Osborn])
allowed me to represent myself during the trial so you
should not hesitate to do so now in these post-trial mat-
ters.” Appellant thus acknowledged he understood the con-
sequences of self-representation. Cf. Palenius, 2 M.J. at 91
(stating that the accused must be aware “of the conse-
quences of proceeding or of permitting his appeal to pro-
ceed without the assistance of an attorney”).
Third, the SJA prudently contacted Appellant’s civilian
defense counsel to confirm Appellant’s waiver. See United
States v. Carter, 40 M.J. 102, 105 (C.M.A. 1994) (requiring
the SJA to notify “defense counsel of appellant’s complaint
[of counsel’s effectiveness] so that the issue of further rep-
resentation [can be] resolved”). Although defense counsel’s
response is not in the record before us, the SJA sent a
36 This was not a hollow claim. As reflected in Issue I above,
the military judge repeatedly informed Appellant of the conse-
quences of proceeding pro se at trial. Although Appellant is cor-
rect that “clemency is a wholly different stage of the proceed-
ing[s],” Appellant’s Brief at 151, many of the same
considerations explained to Appellant at trial applied to the
post-trial process as well.
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Opinion of the Court
follow-up letter notifying Appellant’s counsel as follows: “In
accordance with the Accused’s and your request, the only
post-trial defense matters the Convening Authority will
consider” is Appellant’s pro se material. Significantly, civil-
ian counsel then withdrew his counseled memorandum and
attachments.
Fourth, the SJA reported in her SJAR that Appellant
“further states that he is fully aware of the consequences
of representing himself, and requests that the Convening
Authority should allow him to do so, as he was allowed to
do so during his trial.” This shows that the SJA did not
have any reason to question Appellant’s sincerity with re-
spect to the waiver.
Fifth and finally, Appellant has not pointed to any rec-
ord evidence or produced any affidavits suggesting that his
waiver of the right to counsel during post-trial proceedings
was anything other than voluntary, knowing, and intelli-
gent. Rather, the record before us reveals that Appellant
willingly submitted a handwritten letter not only stating
that he wished to proceed pro se but also that he under-
stood the consequences of forgoing his post-trial right to
counsel, and his counsel then withdrew representation
without any indication that Appellant objected.
All of these factors collectively provide us with a suffi-
cient basis to conclude that Appellant’s waiver was know-
ing, intelligent, and voluntary. Accordingly, we find Appel-
lant validly waived his post-trial right to counsel.
Issue IX: Whether then-Colonel Stuart Risch Was
Disqualified from Participating [in] this Case
as the Staff Judge Advocate
Appellant argues that the SJA was disqualified from
participating in this case because a reasonable person
would impute to him a personal interest in the outcome of
Appellant’s prosecution. We disagree. Moreover, even if we
were to conclude that the SJA was disqualified, we hold
that Appellant has failed to demonstrate prejudice.
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I. Background
Then-Colonel (COL) Risch37 was the SJA in Appellant’s
case during the resolution of a number of pretrial matters.
COL Risch lived with his family at Fort Hood and was on
the installation the day of the attack. Further, according to
a defense trial motion: COL Risch’s wife was at home when
the shootings began and COL Risch called his family to en-
sure their safety; after receiving assurances from his wife
that his family was not in danger, COL Risch briefed the
III Corps Commanding General about the incident; and
COL Risch remained involved in the case in the days and
weeks after the shooting and attended various briefings
about the event itself and the status of the investigation.
In addition, two members of the Office of the Staff
Judge Advocate (OSJA)—CPT NF and a civilian parale-
gal—were present at the Soldier Readiness Processing cen-
ter when the shooting occurred. Although members of the
OSJA were initially concerned about the safety of CPT NF
and the civilian paralegal, neither of them was injured dur-
ing the attack. Years later, CPT NF provided a declaration
regarding his interaction with COL Risch on the evening of
the attack:
After [COL Risch] inquired into my well-being, I
briefed him as to what I had witnessed . . . .
Several days later, COL Risch spoke to myself and
[the civilian paralegal] who had rendered first aid
that day. He mentioned that he had toured the
medical SRP building the evening of 5 November,
that it was a difficult experience that would make
it hard to sleep at night or words to that effect . . . .
37 “Then-COL Risch” became the Deputy Judge Advocate
General of the Army while Appellant’s case was pending before
the ACCA. At that time, he was a Major General (MG). He was
then promoted to Lieutenant General and became the Judge Ad-
vocate General of the Army. For ease of reference, we will hence-
forth refer to him as COL Risch or MG Risch, as applicable, to
reflect his rank during the time frames relevant to Issue IX and
Issue X.
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He suggested that we seek behavioral health as-
sistance as necessary.
More than a year and a half after the attack at Fort
Hood, in a three-page memorandum dated July 6, 2011,
COL Risch provided Article 34, UCMJ,38 advice to the con-
vening authority. In this memorandum, COL Risch pro-
vided his legal conclusions that each specification alleged
an offense under the UCMJ, the allegation of each offense
was warranted by the evidence in the report of investiga-
tion, and the court-martial would have jurisdiction over the
accused and the alleged offenses. COL Risch also noted
that the company commander, the special court-martial
convening authority, and the Article 32, UCMJ, investigat-
ing officer39 recommended trial by general court-martial,
and that the special court-martial convening authority and
the investigating officer further recommended a capital re-
ferral. Consistent with this advice, COL Risch recom-
mended that the convening authority refer the case to a
general court-martial as a capital case.
As a preface to this advice, COL Risch clarified that the
convening authority was “not required to take any specific
action or to dispose of the charges in any particular man-
ner,” but rather that any “action taken [was] to be made
within [the convening authority’s] sole, independent dis-
cretion.” Further, COL Risch spelled out in the memoran-
dum the steps the convening authority should take if he
decided “to refer the case as non-capital.” After considering
the SJA’s advice “as well as the requests, written materi-
als, and presentations made . . . by the defense,” the con-
vening authority approved the SJA’s recommendation of a
capital referral.
Both prior to and subsequent to his recommendations
to the convening authority, COL Risch also gave advice on
a variety of other matters, including: (1) panel selection;
(2) the Government’s requests for expert funding; and
38 10 U.S.C. § 834 (2006).
39 10 U.S.C. § 832 (2006).
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(3) various defense requests.40 COL Risch recommended
granting some of these defense requests, denying others,
and partially granting and denying others still. From the
record before us, it appears that COL Risch recommended
granting all the government’s requests for funding.
Appellant claims that COL Risch should have been dis-
qualified from participating as the SJA in this case. Specif-
ically, Appellant contends that a reasonable person would
impute to COL Risch a personal interest in the outcome of
the case because: the shootings caused COL Risch to rea-
sonably fear for his family; COL Risch feared for the safety
of “a member of his OSJA family”; COL Risch “personally
investigated the scene” the night of the attack; and fi-
nally, COL Risch was “part of the Fort Hood community
that, itself, was a victim of the attack.” Appellant’s Brief at
156-59.
As to prejudice, Appellant argues that we should pre-
sume prejudice because COL Risch’s pretrial advice proba-
bly had some bearing on the convening authority’s decision
to refer this case as capital. Alternatively, Appellant claims
that the harmless beyond a reasonable doubt standard
should apply to our analysis because the participation of a
40 COL Risch gave advice on defense requests for: access to
classified material, a meeting with the convening authority, ap-
pointment of a media analysis expert, a jury consultant, appoint-
ment of an expert military-religious consultant, appointment of
an expert physiatrist, additional funding for mitigation support,
additional funding for a psychologist, appointment of a forensic
pathologist, appointment of Defense-Initiated Victim Outreach
services, temporary duty assignment funds, appointment of an
expert neurologist to conduct testing on the accused, funds for
an expert to provide in-court testimony, additional funding for
the services of the defense’s social science methodology expert,
appointment of an expert consultant on religious conversion, ap-
pointment of an expert on social science methodology, additional
funding for the services of the defense’s digital forensic exam-
iner, and funding of a crime scene analyst.
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disqualified SJA in the processing of a case “is akin to ap-
parent unlawful command influence.” Id. at 160.41
II. Standard of Review
The issue of whether an SJA is disqualified from partic-
ipating in court-martial proceedings is a question of law
which we review de novo. United States v. Chandler, 80
M.J. 425, 429 (C.A.A.F. 2021).
III. Applicable Law
Article 34 and R.C.M. 406 govern pretrial advice by an
SJA. See R.C.M. 406(b) Discussion (2008 ed.) (“The [SJA]
is personally responsible for the pretrial advice . . . . unless
disqualified . . . .”). At the relevant time, R.C.M. 406(a)
(2008 ed.) required the SJA to give “consideration and ad-
vice” “[b]efore any charge [could] be referred for trial by a
general court-martial.” See also Article 34(a), UCMJ.
R.C.M. 406(b) also specified that the SJA’s pretrial advice
“shall include” the SJA’s conclusions with respect to
“whether each specification alleges an offense under the
code,” “whether the allegation of each offense is warranted
41 In a footnote to his brief, Appellant argues that we should
review COL Risch’s “pretrial advice under a quasi-judicial
standard.” Appellant’s Brief at 158 n.40. According to Appellant,
when “acting in a quasi-judicial capacity, persons are held to a
similar standard of impartiality as a military judge.” Id.Appellant argues the test is objective: “whether a reasonable
person, knowing all the relevant facts, would harbor doubts
about the judge’s impartiality.” Id. (citing Nichols v. Alley, 71
F.3d 347, 350-51 (10th Cir. 1995)). For its part, the Government
agrees with the lower court that “no case law ‘supports the
assertion that the SJA, in providing pretrial advice, must be held
to the same standard of impartiality as a military judge.’ ”
Appellee’s Brief at 136 n.32 (citation omitted). We too find no
support for Appellant’s position. Furthermore, we note that even
adopting the “objective standard” urged by Appellant there are
no grounds to question COL Risch’s pretrial advice. As discussed
infra, we are “confident that an objective, disinterested observer
would decide that the” capital referral “was a foregone
conclusion.” United States v. Bergdahl, 80 M.J. 230, 244
(C.A.A.F. 2020) (plurality opinion) (discussing unlawful
command influence).
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Opinion of the Court
by the evidence indicated in the report of investigation,”
and “whether a court-martial would have jurisdiction over
the accused and the offense,” as well as the SJA’s “[r]ecom-
mendation of the action to be taken by the convening au-
thority.” R.C.M. 406(b)(1)-(4) (2008 ed.); see also Article
34(a)(1)-(3), UCMJ. This Court’s predecessor noted that
“the review by a legal advisor is a valuable pretrial protec-
tion to an accused. Generally speaking, it assures full and
fair consideration of all factors.” United States v. Smith,
13 C.M.A. 553, 557, 33 C.M.R. 85, 89 (1963).
When challenging an SJA’s authority to provide pretrial
advice, an appellant “has the initial burden of making a
prima facie case” that the SJA was disqualified. United
States v. Taylor, 60 M.J. 190, 194 (C.A.A.F. 2004). Article
6(c), UCMJ, provides grounds for disqualification in a case
when the SJA “acted” as a member, military judge, trial
counsel, defense counsel, or investigating officer in “the
same case.” 10 U.S.C. § 806(c) (2006); see also R.C.M.
406(b) Discussion (2008 ed.); R.C.M. 1106(b) (2008 ed.).
Our precedent also provides for the disqualification of an
SJA:
when (1) he or she displays a personal interest or
feeling in the outcome of a particular case; (2)
there is a legitimate factual controversy with de-
fense counsel; or, (3) he or she fails to be objective,
such that it renders the proceedings unfair or cre-
ates the appearance of unfairness.
Chandler, 80 M.J. at 429 (citations omitted) (internal
quotation marks omitted); see also United States v. Dresen,
47 M.J. 122, 124 (C.A.A.F. 1997) (recognizing the SJA must
“be, and appear to be, objective”); United States v. Willis,
22 C.M.A. 112, 114, 46 C.M.R. 112, 114 (1973) (cautioning
that an SJA “may become so deeply and personally
involved as to move from the role of adviser to the role of
participant”). “In determining whether an SJA is
disqualified, this Court will consider ‘the action taken, the
position of the person that would normally take that action,
and the capacity in which the action is claimed to have been
taken.’ ” Chandler, 80 M.J. at 429 (quoting United States v.
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Opinion of the Court
Stefan, 69 M.J. 256, 258 (C.A.A.F. 2010)). We note,
however, that even if this Court concludes that an SJA was
disqualified from providing pretrial advice, that alone is
not sufficient for relief. There must be prejudice. See
Stefan, 69 M.J. at 258 (“We have not held that
recommendations prepared by a disqualified officer [are]
void. Rather, we test for prejudice . . . .” (first alteration in
original) (citation omitted) (internal quotation marks
omitted)).
IV. Discussion
For the reasons set forth below, we conclude Appellant
has not met his initial burden of making a prima facie case
that COL Risch was disqualified from serving as the SJA
in this case. Moreover, even if we were to conclude that
COL Risch was disqualified, there is no basis to conclude
that Appellant was prejudiced. Accordingly, we decline to
grant Appellant relief on this issue.
A. SJA Disqualification
Appellant claims that COL Risch was disqualified be-
cause he “was ‘so closely connected’ ” to this case that he
had a personal interest in its outcome. Appellant specifi-
cally cites the following points: “the shootings caused [COL
Risch] to reasonably fear for his family”; COL Risch’s close
colleague “was directly involved in the attack”; COL Risch
“personally investigated the scene” on the night of the of-
fense; and COL Risch “was part of the Fort Hood commu-
nity that, itself, was a victim of the attack.” Appellant’s
Brief at 156-58. We are unpersuaded.
First, Appellant claims that a reasonable person would
impute to COL Risch a personal interest in the outcome of
this case because as soon as COL Risch was notified of the
attack, “he immediately called his wife to ensure the safety
of her and his family who resided on post.” Id. at 156. How-
ever, as it turned out, no member of COL Risch’s family
was harmed in the attack or was ever in direct danger. And
the mere fact that COL Risch checked on his family’s well-
being during the unfolding of a dynamic situation does not,
standing alone, call into question COL Risch’s ability to be
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Opinion of the Court
impartial when providing legal advice in this case. Concern
for the safety of one’s family may be relevant in some cir-
cumstances, but it is not itself disqualifying. See, e.g., Ha-
san, 71 M.J. at 419 (identifying the military judge’s and his
family’s presence “at Fort Hood on the day of the shootings”
as “not disqualifying” in and of itself).
Second, Appellant claims that COL Risch had a per-
sonal interest in the outcome of this case because “he
feared for the safety of CPT [NF], a member of his OSJA
family, who was directly involved in the attack.” Appel-
lant’s Brief at 156. Indeed, Appellant claims this was “the
most disqualifying fact.” Reply Brief at 62. Appellant anal-
ogizes the facts of his case to that of United States v. Nix,
40 M.J. 6 (C.M.A. 1994). In Nix, our predecessor court
found a special court-martial convening authority was dis-
qualified from forwarding charges when, shortly before
trial, he married a woman with whom Nix was suspected
of having a romantic relationship. Id. at 7-8. But the facts
of Nix are distinguishable. To begin with, Nix dealt with a
convening authority, not an SJA as is the case here, and
their roles and their authority in the pretrial process are
dissimilar. Further, the spousal relationship at issue in Nix
is entirely different than the relationship between a super-
visor and his subordinate. Moreover, CPT NF was unin-
jured during the attack,42 and he was not a named victim.
And finally, COL Risch’s natural concern for the safety of
a subordinate is hardly “antithetical to the integrity of the
military justice system as to disqualify him from participa-
tion.” United States v. Engle, 1 M.J. 387, 389 (C.M.A. 1976).
As appropriately noted by the Government, “it is wholly
42 In his reply brief, Appellant suggests that CPT NF was a
target of the attack. Reply Brief at 62 (claiming that rounds were
fired in CPT NF’s direction and that, according to Appellant’s
own statements, “every soldier was a target”). We acknowledge
that CPT NF could have been injured. However, CPT NF stated
that while “[r]ounds were fired in my direction,” “whether
[Appellant] was aiming at me I do not know.” Importantly, in his
own words, CPT NF stated he “was uninjured” during the
attack.
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unremarkable that COL Risch expressed concern for the
well-being of his subordinates.” Appellee’s Brief at 135.
Third, Appellant claims that COL Risch was disquali-
fied because he “personally investigated the scene [of the
attack] that very night.” Appellant’s Brief at 157. At the
outset, it is important to note that despite the wording used
in Appellant’s brief, there is nothing in the record that in-
dicates that COL Risch served as an investigator of this
crime. And the fact COL Risch visited the crime scene does
not, by itself, give reason to doubt his objectivity under
Chandler. Indeed, it is notable—as the ACCA pointed
out—that COL Risch was required to expose himself to dis-
turbing images and witness accounts in order to effectively
perform “his role as SJA under R.C.M. 406 . . . pursuant to
Article 32, UCMJ.” Hasan, 80 M.J. at 706.
Appellant further argues that COL Risch’s comments to
CPT NF after visiting the scene of the attack “evidenced an
emotional disturbance” that “underscores the point” about
COL Risch’s disqualification. Appellant’s Brief at 157. We
are not convinced. COL Risch’s purported comments—that
visiting the SRP center building “was a difficult experience
that would make it hard to sleep at night”—do not suggest
a level of personal interest that is disqualifying. Setting
aside possible concerns about the accuracy of these re-
ported comments by COL Risch,43 we find, like the lower
court, that they were mere “expression[s] of empathy.” Ha-
san, 80 M.J. at 706. And without more, there is nothing
necessarily incompatible with expressing empathy at the
43 In May 2018, CPT NF had a conversation with a member
of Appellant’s appellate defense team in which CPT NF de-
scribed what COL Risch purportedly said after visiting the SRP
center building. That same day, CPT NF wrote a statement me-
morializing his conversation with the member of Appellant’s de-
fense team. However, we note that this statement was written
nearly nine years after the attack. Perhaps acknowledging this
significant lapse in time, CPT NF qualified that he was not quot-
ing COL Risch but rather was stating that COL Risch had used
“words to that effect.”
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time of an incident and later being objective when perform-
ing legal duties.
In arguing this ground for disqualification, Appellant
likens COL Risch’s actions to the facts in Brookins v. Cul-
lins, 23 C.M.A. 216, 49 C.M.R. 5 (1974), a case where the
convening authority witnessed the offense at issue and our
predecessor court found, for a number of reasons, that he
was disqualified. But we do not find Brookins on point. To
begin with, we do not accept Appellant’s premise that vis-
iting a crime scene is akin to witnessing an offense. Next,
even if the two were comparable, the Brookins Court spe-
cifically stated that it “need not decide whether merely wit-
nessing the commission of an offense is sufficient to dis-
qualify the convening authority.” Id. at 218, 49 C.M.R. at
7. And finally, Appellant does not make it clear why Brook-
ins, a case analyzing grounds for disqualifying a convening
authority, should be extended here to apply to an SJA. Cf.
United States v. Brocato, 4 F.4th 296, 302-03 (5th Cir.
2021) (stressing that in the context of recusal for federal
civilian judges, “each recusal case ‘. . . must be judged on
its unique facts and circumstances more than by compari-
son to situations considered in prior jurisprudence’ ” (quot-
ing United States v. Jordan, 49 F.3d 152, 157 (5th Cir.
1995))).
For his final argument, Appellant claims that COL
Risch had a personal interest in the outcome of the case
because he “was part of the Fort Hood community that, it-
self, was a victim of the attack.” Appellant’s Brief at 158.
We acknowledge the personal impact the Fort Hood shoot-
ings may have had on COL Risch. However, the record be-
fore us is insufficient to establish that COL Risch actually
“display[ed] ‘a personal interest or feeling in the outcome
of [Appellant’s] case.’ ” Chandler, 80 M.J. at 429 (quoting
United States v. Sorrell, 47 M.J. 432, 433 (C.A.A.F. 1998)).
Accordingly, Appellant cannot succeed on this argument.
Appellant argues that when considering the four points
that he raises, we should take a “totality of the circum-
stances” approach. Appellant’s Brief at 158. We agree. But
even considering all four alleged circumstances together,
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Opinion of the Court
we do not find a sufficient basis to conclude that a reason-
able person would impute to COL Risch a personal interest
in the outcome of this case. Accordingly, we find COL Risch
was not disqualified.
B. Prejudice
We deem it prudent to now turn our attention to the
issue of whether Appellant would merit relief even if COL
Risch was disqualified from serving as the SJA in this case.
In his initial brief, Appellant focuses the prejudice discus-
sion on COL Risch’s Article 34 pretrial advice and his ad-
vice regarding member selection. In doing so, Appellant ar-
gues that this Court should depart from its disqualification
case law and presume prejudice or, in the alternative, as-
sess this alleged error for harmlessness beyond a reasona-
ble doubt. Appellant specifically urges this Court to extend
the rule from Nix, which seemed to hold that courts “must
assume the [special court-martial convening authority’s]
recommendation influenced the [general court-martial]
convening authority’s decision to refer the charges to a gen-
eral court-martial.” 40 M.J. at 8. Alternatively, Appellant
argues that “the prejudice standard should be harmless be-
yond a reasonable doubt because the participation of a dis-
qualified officer in the processing of appellant’s case is akin
to apparent unlawful command influence.” Appellant’s
Brief at 160.
We decline Appellant’s invitation to depart from our
precedent in regard to these two points. Simply stated, Ap-
pellant’s arguments are squarely foreclosed by Stefan,
69 M.J. at 258, which rejected a presumption of prejudice
for disqualified SJAs and did not apply a harmless beyond
a reasonable standard. As articulated by the Stefan Court,
“We have not held that recommendations prepared by a
disqualified officer [are] void. Rather, we test for prejudice
under Article 59(a) . . ., which requires material prejudice
to the substantial rights of the accused.” Id. (first alteration
in original) (citation omitted) (internal quotation marks
omitted); see also id. (rejecting the appellant’s request to
presume prejudice because even though the SJA was dis-
qualified under Article 6(c), “these kinds of
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[disqualification] errors are amenable to being tested for
prejudice”); Taylor, 60 M.J. at 194-95 (assessing the SJA’s
error in failing to recuse for prejudice); Sorrell, 47 M.J. at
434 (same).
We further note that Appellant’s analogy to the unlaw-
ful command influence context is misplaced. The SJA’s role
is to provide legal advice, and it would be the rarest of cir-
cumstances where an SJA would be senior in rank to a con-
vening authority and could thus unlawfully influence the
convening authority’s decision-making. Indeed, COL Risch
demonstrably was not senior in rank to the convening au-
thority in the instant case. Moreover, the lack of any rec-
ommendations by COL Risch that were inexplicably ad-
verse to Appellant undermines any appearance of
partiality claim that has previously resulted in relief in the
command influence context. See United States v. Horne, 82
M.J. 283, 289 (C.A.A.F. 2022) (“[T]he lack of personal prej-
udice is still a ‘significant factor in determining whether
the unlawful command influence created an intolerable
strain on the public’s perception of the military justice sys-
tem.’ ” (quoting United States v. Proctor, 81 M.J. 250, 255
(C.A.A.F. 2021))). Accordingly, contrary to Appellant’s as-
sertions, we must engage in a typical prejudice analysis
when assessing whether a disqualified SJA’s pretrial ad-
vice and advice on member selection merits relief.
Turning to the pretrial advice in the course of our prej-
udice analysis, we note that Appellant does not take issue
with COL Risch’s conclusions that the specifications al-
leged offenses under the UCMJ, that the facts supported
those specifications, that a court-martial would have juris-
diction over Appellant and his offenses, or that an aggra-
vating factor was present. Nor does Appellant identify any
other aspect of COL Risch’s Article 34 pretrial advice as
being problematic or evincing bias that improperly influ-
enced his recommendations. In fact, a review of the record
evidence makes “it impossible to believe that anyone else
would have recommended action other than was recom-
mended by” COL Risch. Smith, 13 C.M.A. at 559, 33 C.M.R.
at 91; see also Stefan, 69 M.J. at 259 (finding no prejudice
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in part because given the circumstances of the case, “in-
cluding the host of offenses committed by [a]ppellant and
the seriousness of some of his crimes, there is nothing that
would suggest that another SJA would have made a differ-
ent recommendation” (footnote omitted)); cf. United States
v. Tittel, 53 M.J. 313, 314 (C.A.A.F. 2000) (agreeing with
the lower court that “[i]n light of the serious nature of the
charges facing the appellant” it was “unlikely that any
competent authority would not have referred this case to a
special court-martial” (citation omitted) (internal quota-
tion marks omitted)); Tovarchavez, 78 M.J. at 462 n.5 (“In
the context of nonconstitutional errors, courts consider
whether there is a ‘reasonable probability that, but for the
error, the outcome of the proceedings would have been dif-
ferent.’ ” (quoting Molina-Martinez v. United States, 578
U.S. 189, 194 (2016))). In other words, Appellant has not
demonstrated any prejudice resulting from an act or omis-
sion of COL Risch in his Article 34 pretrial advice.
Similarly, Appellant has not adequately demonstrated
prejudice arising from COL Risch’s performance of any
other pretrial functions. See United States v. Moorefield, 66
M.J. 170, 171 (C.A.A.F. 2008) (per curiam) (noting the ap-
pellant had “not shown that anything [the SJA] did or did
not do in the course of the second court-martial prejudiced
him”). For example, Appellant fails to articulate with any
specificity how COL Risch’s purported “personal interest”
in this case, or his purported lack of objectivity, influenced
his advice. Therefore, under these facts and circumstances,
we are unable to discern any prejudice that would merit
relief even if we concluded that COL Risch was disqualified
from serving as the SJA.
As to the selection of members, Appellant has not de-
scribed COL Risch’s role in, nor pointed to anything in the
record regarding, the member selection process. Our own
review of COL Risch’s memoranda reveals that his member
selection advice was “boilerplate” in nature, simply laying
out the law governing panel selection and advising the con-
vening authority as to the number of members to be se-
lected as well as excusal conditions and various other
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administrative details. Consequently, Appellant has failed
to show how these memoranda, or any other actions COL
Risch may have taken in the panel selection process, were
prejudicial.
To conclude, we hold that Appellant has not demon-
strated COL Risch was disqualified from serving as the
SJA in Appellant’s case. In addition, we find that even if
COL Risch was disqualified, Appellant did not suffer prej-
udice. Therefore, Appellant is not entitled to relief on this
issue.
Issue X: Whether the Judges of the Army Court
of Criminal Appeals Should Have Been Recused
Because They Were Supervised by then-Major
General Stuart Risch While His Error as the Staff
Judge Advocate Was Pending
Litigation Before Them
Appellant argues that the judges of the ACCA abused
their discretion when they failed to recuse themselves from
this case. In support of his argument, Appellant cites the
fact that the ACCA judges were supervised by MG Risch at
the same time they had pending before them an issue in-
volving then-COL Risch’s failure to recuse himself as the
staff judge advocate. Appellant asserts that a reasonable
person would question the impartiality of the ACCA judges
under these circumstances. However, for the reasons pro-
vided below, we conclude that the ACCA judges did not
abuse their discretion when they declined to recuse them-
selves. Moreover, we conclude that even if the ACCA judges
were disqualified from hearing Appellant’s case, setting
aside the lower court’s opinion as requested by Appellant
is not warranted. See Liljeberg v. Health Servs. Acquisition
Corp., 486 U.S. 847 (1988).
I. Background
As discussed supra, at the time of Appellant’s attack in
2009, COL Risch served as the staff judge advocate for III
Corps and Fort Hood. Following the shooting, COL Risch
provided pretrial advice to the convening authority,
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including Article 34 advice regarding the referral of
charges. See Hasan, 80 M.J. at 704.
Subsequently, MG Risch became the Deputy Judge
Advocate General of the Army after Appellant’s case was
docketed at the ACCA. Several ACCA judges recused
themselves from Appellant’s case while it was pending
review. Id. at 690 n.1. In 2018, three ACCA judges were
assigned to the case—Chief Judge Berger, Judge
Schasberger, and Judge Hagler. MG Risch served as the
rater for Chief Judge Berger, and as the rater and senior
rater for the other ACCA judges. However, three other
ACCA judges—Senior Judge Brookhart, Chief Judge
(IMA44) Krimbill, and Judge Rodriguez—were assigned to
the court in the summer of 2019, and it is these three
judges who were responsible for the court’s published
opinion in this case. Hasan, 80 M.J. at 690. MG Risch
initially served as their rater as well.
During the pendency of the ACCA appeal, Appellant
filed three motions to disqualify the various ACCA judges
who presided over Appellant’s appeal because of MG
Risch’s rating relationship with them. The first motion was
filed on July 11, 2018, and was denied by the ACCA on Au-
gust 17, 2018. Appellant later submitted a motion for re-
consideration, which the ACCA denied on December 6,
2018.
In the summer of 2018, Appellant submitted a motion
to the ACCA requesting “funding for expert assistance to
conduct a nationwide survey.” In relevant part, Appellant
wanted to “assess public opinion on the question of per-
ceived partiality of [COL] Risch in providing pre-trial ad-
vice and perceived partiality of [the ACCA] in assessing
MG Risch’s conduct.” The ACCA denied this motion.
44 An IMA is an individual mobilization augmentee. This is
a reservist who “support[s] an operational requirement for” the
Army. United States v. Shea, 76 M.J. 277, 279 n.2 (C.A.A.F.
2017); see also Dep’t of the Army, Reg. 140-145, Individual Mo-
bilization Augmentation Program para. 1-6 (Mar. 21, 2022).
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Also in the summer of 2018, Appellant filed a motion
with the ACCA seeking a “protective order directing [MG]
Risch” and others “to preserve and maintain any and all
correspondence related to United States v. Hasan and any
and all correspondence about the attack itself.” Appellant
noted that this motion was related to the “allegation of er-
ror regarding MG Risch’s potential bias . . . that may have
affected the pre-trial advice,” and reasoned that the “corre-
spondence may reveal further evidence of alleged bias.”
The ACCA denied this motion.45
Following the ACCA litigation on the first motion to
recuse, Appellant filed a petition for extraordinary relief in
the nature of a writ of mandamus with this Court seeking
the recusal of the ACCA judges. Hasan v. United States
Army Court of Criminal Appeals, 78 M.J. 189, 189-90
(C.A.A.F. 2018) (filing). In a summary disposition, this
Court denied Appellant’s petition because:
Petitioner has failed to demonstrate that he can-
not obtain relief through alternative means. He
may still make an administrative request to rem-
edy the alleged source of bias, and of course, he is
entitled to raise this issue in the ordinary course
of appellate review. Further, Petitioner has failed
to demonstrate a clear and indisputable right to
the writ as the harm he asserts is entirely specu-
lative at this stage of the proceedings.
Hasan v. United States Army Court of Criminal Appeals,
79 M.J. 29, 30 (C.A.A.F. 2019) (summary disposition).
Appellant filed his third recusal motion with the ACCA
on August 14, 2020. This motion sought the recusal of those
judges of the court who would hear oral arguments and is-
sue the written opinion in this case “on the grounds that
MG Risch is the senior rater for [those] judges.” The ACCA
45 In his July 11, 2018, motion seeking the recusal of the
ACCA judges, Appellant also averred that a motion previously
submitted to the ACCA for investigative assistance was predi-
cated, in part, on Appellant’s desire to investigate MG Risch’s
“other than official interest” in the case. The ACCA denied this
motion as well.
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denied that motion on September 9, 2020. The Army Court
stated that it would “provide the basis for this ruling in
conjunction with [its] decision on [A]ppellant’s assigned er-
rors,” but it never did so.
On July 29, 2020, Appellant submitted a request to the
Judge Advocate General of the Army, who at that time was
LTG Charles Pede, seeking a modification of the rating
scheme for those ACCA judges who were presiding over his
case. In a response dated September 16, 2020, LTG Pede
stated that although he determined there was “no conflict
of interest” regarding MG Risch’s rating relationship with
the ACCA judges, he decided that “out of an abundance of
caution, and to moot any concerns” he—LTG Pede—would
serve “as both the rater and senior rater” for any ACCA
judge who reviewed the merits of Appellant’s case.
The ACCA heard oral argument in Appellant’s case on
October 15, 2020, and issued its opinion affirming the find-
ings and sentence on December 11, 2020.
Before this Court, Appellant argues that “a reasonable
person would . . . question the impartiality of the Army
Court when litigation was pending before them regarding
their supervisor.” Appellant’s Brief at 163. Appellant fur-
ther argues that MG Risch’s eventual removal as the rater
of the ACCA judges failed to resolve the conflict because
the Army Court “operated under the conflict for more than
three years in which it issued numerous rulings that di-
rectly and substantively affected the resolution of this
case,” including rulings involving MG Risch. Id. at 163-64.
Appellant maintains that LTG Pede’s removal of MG Risch
as the ACCA judges’ rater did not “retroactively resolve”
the conflict and that “the Army Court’s opinion did not ad-
dress the conflict at all” despite that court’s assurances to
“the parties that it would disclose the reason(s) in its final
opinion for not disqualifying themselves.” Id. at 164. Ulti-
mately, Appellant asserts that after applying the three fac-
tors from Liljeberg, setting aside the lower court’s opinion
is required as a result of the ACCA recusal error.
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In response, the Government argues that when LTG
Pede removed MG Risch from the ACCA judges’ rating
chain—as requested by Appellant—the recusal issue be-
came moot. Moreover, the Government contends that there
was no need for the ACCA judges to recuse themselves be-
cause “[a] reasonable person with knowledge of all the facts
regarding [MG] Risch’s involvement in this case would
have no doubts about the impartiality of” the ACCA judges.
Appellee’s Brief at 139 (footnote omitted). The Government
points to two factors to support this point: (1) MG Risch
was no longer in the rating chain of the ACCA judges by
the time they heard oral argument or issued their opinion;
and (2) even before this change in the rating chain, the sole
issue that came before the ACCA involving COL Risch did
not challenge his legal advice or his ethical conduct. Fi-
nally, the Government asserts that, even if recusal was
warranted, the Liljeberg factors favor upholding the
ACCA’s decision.
II. Standard of Review
An “appellate judge’s decision on recusal is reviewed for
an abuse of discretion.” United States v. Jones, 55 M.J. 317,
320 (C.A.A.F. 2001); United States v. Hamilton, 41 M.J. 32,
39 (C.M.A. 1994). “A[n] [appellate] judge’s ruling consti-
tutes an abuse of discretion if it is ‘arbitrary, fanciful,
clearly unreasonable or clearly erroneous,’ not if this Court
merely would reach a different conclusion.” United States
v. Sullivan, 74 M.J. 448, 453 (C.A.A.F. 2015) (quoting
United States v. Brown, 72 M.J. 359, 362 (C.A.A.F. 2013)).
III. Applicable Law
Whether an appellate military judge must recuse him-
self or herself from sitting on a given case is assessed ac-
cording to the standards laid out in R.C.M. 902. United
States v. Mitchell, 39 M.J. 131, 142 (C.M.A. 1994). In rele-
vant part, that rule provides that “a military judge shall
disqualify himself or herself in any proceeding in which
that military judge’s impartiality might reasonably be
questioned.” R.C.M. 902(a) (2019 ed.); see also R.C.M.
902(c)(1) (2019 ed.) (“ ‘Proceeding’ includes . . . appellate
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review . . . .”). “The standard for deciding the Manual judi-
cial-disqualification question is . . . . whether a reasonable
person who knew all the facts might question these appel-
late military judges’ impartiality.” Mitchell, 39 M.J. at 143.
This requirement for recusal “enhances public confidence
in the judicial system by ensuring that judges avoid the ap-
pearance of partiality.” Jones, 55 M.J. at 319.
“The tension created by the placement of the military
judiciary within the officer personnel structure requires
military judges to be sensitive to particular circumstances
that may require consideration of recusal.” United States v.
Norfleet, 53 M.J. 262, 268 (C.A.A.F. 2000). “Each . . . case
must be assessed on its own merits.” Id. at 270. The mere
“fact that military judges may issue rulings adverse to the
interests of superior officers, however, does not in itself
preclude those judges from exercising independence in
their judicial rulings.” Id. at 268. Also, standing alone,
“preparation of fitness reports for appellate military judges
by senior judge advocates does not create a circumstance in
which the impartiality of a judge might reasonably be ques-
tioned under RCM 902(a).” Id. at 269 (citing Mitchell,
39 M.J. at 131).
However, there may be “facts and circumstances [that]
call for” recusal. Id. at 270. After all, “judicial officials may
have relationships which cast suspicion upon their fairness
or impartiality.” Id. Most relevant to the present case is
this Court’s statement that questions may arise about the
impartiality of appellate military judges if they “review[] a
case where the Judge Advocate General or the Assistant
Judge Advocate General, prior to their appointment, acted
as a military trial judge, trial counsel, defense counsel, or
staff judge advocate in that case.” Mitchell, 39 M.J. at 145
n.8 (emphasis added). “There may be cases in which the
ruling by a military judge on an issue would have such a
significant and lasting adverse direct impact on the profes-
sional reputation of a superior for competence and integrity
that recusal should be considered.” Norfleet, 53 M.J. at 271.
When appellate military judges err in failing to recuse
themselves in a case, we test for prejudice using the
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Liljeberg factors. See United States v. Witt, 75 M.J. 380,
384 (C.A.A.F. 2016); United States v. Roach, 69 M.J. 17, 20-
21 (C.A.A.F. 2010).
In Liljeberg, the Supreme Court considered
three factors to determine whether a remedy is
warranted for a judge’s failure to recuse himself
[or herself]: (1) the “risk of injustice to parties in
the case”; (2) the “risk that the denial of relief will
result in injustice in other cases”; and (3) the “risk
of undermining public confidence in the judicial
process.”
United States v. Rudometkin, 82 M.J. 396, 398 (C.A.A.F.
2022) (quoting Liljeberg, 486 U.S. at 864).
IV. Discussion
We conclude that the ACCA judges did not abuse their
discretion by declining to recuse themselves from this case.
But even if they did abuse their discretion, setting aside
the lower court’s opinion is not warranted under
Liljeberg.46
A. Recusal
We acknowledge that Appellant’s basic premise—a rea-
sonable person would question the ACCA judges’ impar-
tiality when they decided issues pertaining to errors alleg-
edly committed by their then-superior officer and rater—is
facially appealing. However, in resolving recusal issues of
this nature, the key is whether “a reasonable person know-
ing all the facts and circumstances . . . could question [the
judges’] impartiality or independence in reviewing appel-
lant’s case.” Mitchell, 39 M.J. at 144. And here, the
46 We disagree with the Government’s contention that be-
cause MG Risch was removed as the rater of the ACCA judges,
the recusal issue is moot. The ACCA decided motions on issues
pertaining to MG Risch before he was removed as the judges’
rater—thereby calling the validity of those decisions into ques-
tion—and “an issue is moot [only] if resolving it ‘would not result
in a material alteration of the situation for the accused or for the
Government.’ ” United States v. Napoleon, 46 M.J. 279, 281
(C.A.A.F. 1997) (quoting United States v. Clay, 10 M.J. 269(C.M.A. 1981)).
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Opinion of the Court
attendant facts and circumstances demonstrate that the
ACCA judges who handled this case did not abuse their dis-
cretion by declining to recuse themselves. We specifically
highlight two points in our analysis.
First, in terms of the rulings made by the ACCA judges
during the time when MG Risch still served as their
rater,47 a reasonable person would know certain key facts.
To begin with, it is true that the Army Court denied a de-
fense request for “expert funding to conduct a survey . . .
relating to . . . whether members of the public would draw
negative connotations from then-[COL] Risch[’s] actions as
the SJA and for his relationship with the court.” Appel-
lant’s Brief at 37. However, this defense request was, to say
the least, novel. Moreover, it was ancillary not only to the
question of the guilt or innocence of the accused but also to
the question of whether this case was properly handled
procedurally. Therefore, a reasonable person would con-
clude that the decision by the ACCA judges to deny this
request was inevitable and not a result of them trying to
curry favor with MG Risch.
Similarly, the defense request for “a protective order di-
recting . . . [MG] Risch” and others “to preserve and main-
tain any and all correspondence related to United States v.
Hasan and any and all correspondence about the attack it-
self” was unusual if not unprecedented in military justice.
Indeed, the only authority cited by Appellant in support of
this motion was United States v. Campbell which is not on
point because it dealt with a “post-trial dispute over discov-
ery relevant to an appeal.” 57 M.J. 134, 138 (C.A.A.F.
2002). Therefore, once again a reasonable person would un-
derstand that the ACCA judges’ handling of this matter
was not predicated on their rating relationship with MG
Risch.
Second, the sole assignment of error at the ACCA in-
volving MG Risch did not challenge the substance of his
47 As noted earlier, MG Risch had been removed from the
ACCA judges’ rating chain by the time the Army Court held oral
argument and issued its opinion in this case.
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Opinion of the Court
legal advice. Rather, the alleged error was simply that MG
Risch should have been disqualified from providing Article
34, UCMJ, pretrial advice to the convening authority. A
reasonable person would conclude that these circum-
stances did not rise to the level where the ACCA judges
would have been concerned that their decision on this issue
“would have such a significant and lasting adverse direct
impact on the professional reputation of a superior for com-
petence and integrity” that their disqualification under
R.C.M. 902 was mandated. Norfleet, 53 M.J. at 271.
Accordingly, the ACCA judges did not abuse their dis-
cretion when they declined to recuse themselves.
B. Liljeberg Analysis
Even if we were to hold that the ACCA judges did abuse
their discretion when they declined to recuse themselves
from this case, the three Liljeberg factors show that vaca-
tur of the lower court’s opinion is not warranted. See
United States v. Martinez, 70 M.J. 154, 158 (C.A.A.F. 2011)
(“not every judicial disqualification requires reversal” and
the Liljeberg factors “determine whether [an appellate]
military judge’s conduct warrants” a remedy).
We turn to the factors in order. First, the risk of injus-
tice to Appellant was low. As the Government notes, “When
the judges heard argument in this case and issued their
opinion, MG Risch was no longer their rater.” Appellee’s
Brief at 148. As for Appellant’s contention that the ACCA
judges “operated under [a] conflict for more than three
years in which it issued numerous rulings that directly and
substantively affected the resolution of this case,” Appel-
lant’s Brief at 164, most of these rulings were unrelated to
MG Risch. And as discussed above, it is unlikely that the
motions related to MG Risch would have been favorably
ruled upon by any appellate military judge.
Second, in terms of whether denying relief in this case
will result in injustice in future cases, we concur with this
Court’s observation in United States v. Butcher: “It is not
necessary to [vacate the lower court’s opinion] in order to
ensure that [appellate] military judges exercise the
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appropriate degree of discretion in the future.” 56 M.J. 87,
93 (C.A.A.F. 2001).
Third, the risk of undermining public confidence in the
military judicial process by denying relief is low. As the
Government notes, in light of the tenuous nature of the
substantive arguments by Appellant, the remedy of vaca-
tur would simply serve to “undermine the public’s confi-
dence in the certainty of military appeals courts’ judg-
ments.” Appellee’s Brief at 149-50.
Therefore, upon assessing the Liljeberg factors, even if
the ACCA judges abused their discretion by declining to
recuse themselves, the proposed remedy requested by Ap-
pellant of setting aside the lower court’s opinion is not war-
ranted. Accordingly, Appellant is entitled to no relief on
this issue.
Issue XI: Whether the Convening Authority Was
Disqualified to Perform the Post-Trial Review of
Appellant’s Case After Awarding Purple Heart
Medals to the Victims of Appellant’s Offenses48
Appellant asserts that he was denied his “substantial
right to an individualized, legally appropriate, and careful
post-trial review of his convictions and sentence” by the
convening authority. Appellant’s Brief at 168. Specifically,
he argues that LTG Sean MacFarland was disqualified
from performing the post-trial review of this case because
LTG MacFarland awarded Purple Heart medals to the vic-
tims of Appellant’s offenses and gave remarks at the cere-
mony, thereby demonstrating that he “could not give
[A]ppellant’s case a fair review or protect the integrity of
the process.” Id. at 169. Accordingly, Appellant asserts that
he was “denied his substantial right to an impartial review
of his case, and [that] this Court should remand [A]ppel-
lant’s case for a new convening authority action.” Id. at 170.
48 As discussed infra, Appellant did not raise this issue be-
fore the lower court.
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Contrary to Appellant’s contentions, we hold that it was
not plain error for LTG MacFarland to conduct the post-
trial review of Appellant’s case.
I. Background
Prior to Appellant’s trial, a bill was introduced in Con-
gress that would have authorized the Army to award Pur-
ple Heart medals to Appellant’s victims. H.R. Rep. No. 112-
479, pt. 1, at 164 (2012).49 The Army opposed this legisla-
tion because, among other reasons, it believed the bill
“would undermine the prosecution of” Appellant “by mate-
rially and directly compromising [Appellant’s] ability to re-
ceive a fair trial.” However, in December 2014, after Appel-
lant’s conviction and sentencing, Congress passed
subsequent legislation that authorized the military to
award the Purple Heart medal to active duty service mem-
bers “who [were] killed or wounded in an attack by a for-
eign terrorist organization” under such circumstances as
existed in this case. 10 U.S.C. § 1129a(a)-(b) (2018); see also
Dep’t of the Army, Reg. 600-8-22, Personnel-General, Mili-
tary Awards para. 2-8(b)(10) (Mar. 5, 2019). After the pas-
sage of this legislation, “the Secretary of the Army deter-
mined that servicemembers injured or killed in the Fort
Hood attacks were eligible for the Purple Heart if they met
the other regulatory criteria.” Berry v. Esper, 322 F. Supp.
3d 88, 89 (D.D.C. 2018).
Appellant states that on April 10, 2015, LTG MacFar-
land awarded Purple Heart medals to the victims of the
Fort Hood attack and made public remarks “regarding the
victims, identifying their deaths and injuries as a sacrifice,
construing their actions as courageous, brave, selfless, and
valorous, and conjecturing that [A]ppellant would have in-
flicted greater calamity given the opportunity.” Appellant’s
Brief at 169.50
49 The bill also would have awarded the Purple Heart medal
to the victims of an unrelated June 2009 attack on a recruiting
station in Little Rock, Arkansas. H.R. Rep. No. 112-479, at 164.
50 Appellant does not provide any joint appendix or record
citations documenting the ceremony. For its part, the
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Opinion of the Court
Almost two years later, in March 2017, LTG MacFar-
land, in his capacity as the convening authority, approved
the findings and the sentence in Appellant’s case. Prior to
that action, Appellant had submitted an approximately
450-page handwritten document addressing such topics as
his understanding of Islam, his view of the world and the
meaning of life, and “mans [sic] duty to his creator.” In do-
ing so, he explicitly informed the convening authority:
“[T]his submission is not a plea for mercy.”
Appellant submitted his initial appellate brief to the
ACCA in November 2019, more than two and a half years
after the award ceremony at issue. However, he did not
raise this issue before the Army court.
II. Standard of Review
The standard of review for this issue depends on
whether the issue was waived, forfeited, or preserved. The
Government argues that Appellant waived the issue. If the
Government is correct, then we cannot review the issue at
all. United States v. Rich, 79 M.J. 472, 476 (C.A.A.F. 2020).
However, before deciding whether a waiver occurred, we
must address two important preliminary questions.
The first question is whether the Government is assert-
ing that Appellant intentionally waived the issue or instead
is asserting that the issue was waived by operation of law.
An intentional waiver occurs when a party intentionally re-
linquishes or abandons a known right. United States v.
Day, 83 M.J. 53, 56 (C.A.A.F. 2022) (citing United States v.
Jones, 78 M.J. 37, 44 (C.A.A.F. 2018)). In contrast, a
“waiver by operation of law happens when a procedural
rule or precedent provides that an objection is automati-
cally waived upon the occurrence of a certain event and
that event has occurred.” Id. (citing United States v. Swift,
76 M.J. 210, 217-18 (C.A.A.F. 2017)). The Government’s
brief does not expressly identify the type of waiver that it
contends occurred in this case. We nonetheless conclude
Government merely refers to an Army press release that is not
part of the record.
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that the Government is asserting that Appellant intention-
ally waived the issue. We reach this conclusion because the
Government principally relies on United States v. Gud-
mundson, 57 M.J. 493, 495 (C.A.A.F. 2002), a case in which
an appellant intentionally waived a disqualification issue,
and because the Government does not cite any legal rule
that provides that a failure to raise an issue constitutes
waiver. Accordingly, we consider only whether Appellant
expressly waived the issue and do not consider whether the
waiver might have occurred by operation of law.51
The second preliminary issue concerns the Govern-
ment’s theory of how the intentional waiver occurred. On
this point, the Government’s brief is clearer. The Govern-
ment asserts that Appellant waived the issue because he
“makes no claim that he was unaware of [the convening
authority’s] role in the Purple Heart ceremony,” and yet he
made no mention of this issue in his submissions to the
convening authority under R.C.M. 1105 and 1106. Appel-
lee’s Brief at 154. Accordingly, we consider only this spe-
cific theory of intentional waiver and we do not consider
other possible theories of waiver.52
Having addressed these two preliminary issues, we now
turn to the question of whether Appellant has intentionally
waived the disqualification issue in the manner the Gov-
ernment alleges. This is “a legal question that this Court
reviews de novo.” Day, 83 M.J. at 56. We are aided in de-
ciding this issue by two precedents. In Gudmundson, an
appellant argued for the first time on appeal that the con-
vening authority should have been disqualified from
51 For example, we do not consider whether waiver by oper-
ation of law occurred under R.C.M. 1105(d)(1) or (2) (2008 ed.),
which address the failure to submit matters to the convening
authority that might affect the convening authority’s decision
whether to disapprove any findings of guilty or to approve the
sentence.
52 For example, we do not consider the possibilities that Ap-
pellant expressly waived the argument based on anything he or
his counsel said in their submissions to the convening authority
or by not raising the issue on appeal to the ACCA.
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approving the findings and sentence because he had testi-
fied at a suppression hearing. 57 M.J. at 495. This Court
held that the appellant had waived the objection because,
having been present at the suppression hearing, the appel-
lant clearly knew of the possible ground for disqualification
but “he chose to not raise the disqualification issue at trial
or in his post-trial submission to the convening authority.”
Id. In contrast, this Court in United States v. Fisher con-
fronted a situation where the appellant argued for the first
time on appeal before the CCA that the convening author-
ity should have recused himself because the convening au-
thority had made a statement disparaging defense counsel
as unethical. 45 M.J. 159, 160, 163 (C.A.A.F. 1996). The
Court held that the appellant had not waived the issue be-
cause there was “no evidence or other indication that [the]
appellant, herself, was aware of [the convening authority’s]
statement and made a knowing and intelligent waiver of
her right to contest his qualifications to take the action on
her court-martial.” Id. at 163.
We think that this case is much closer to Fisher than
Gudmundson. The Government has cited nothing in the
record establishing Appellant was aware that the conven-
ing authority had awarded Purple Heart medals to the vic-
tims of the shooting. Instead, as noted above, the Govern-
ment only asserts that Appellant “makes no claim that he
was unaware of [the convening authority’s] role in the Pur-
ple Heart ceremony.” Appellee’s Brief at 154. Under Fisher,
this assertion is insufficient to establish an intentional
waiver. We therefore conclude that Appellant did not waive
the disqualification issue.
The next question is whether Appellant forfeited the is-
sue or preserved it. If an issue is forfeited, we review it for
plain error. United States v. Tunstall, 72 M.J. 191, 193
(C.A.A.F. 2013). But if Appellant preserved the issue, we
must review de novo his claim that the convening authority
was disqualified from taking post-trial action on his court-
martial. United States v. Davis, 58 M.J. 100, 102 (C.A.A.F.
2003). In the instant case, Appellant argues that we should
review the issue de novo. We disagree. Although we accept
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as true Appellant’s assertion that at the time he filed his
submission with the convening authority he did not know
about the Purple Heart awards ceremony, he makes no
similar representation regarding his filing with the lower
court. Specifically, Appellant does not claim that at the
time he filed his brief with the ACCA he was unaware of—
or, using reasonable diligence, could not have been aware
of—the Purple Heart awards ceremony. Further, we note
that this ceremony took place approximately two and a half
years before Appellant filed his initial brief with the lower
court. And, to demonstrate the perils of considering an is-
sue such as this one that was not considered below, we note
that Appellant did not include in the record any documen-
tation of the Purple Heart ceremony or the specifics of LTG
MacFarland’s participation in it.
Under these circumstances, we hold that Appellant has
forfeited this issue because he failed to raise it in a timely
manner before the court below. See Rich, 79 M.J. at 475
(“[F]orfeiture is the failure to make the timely assertion of
a right . . . .” (citation omitted) (internal quotation marks
omitted)). As a consequence, it is appropriate for this Court
to apply a plain error standard of review. United States v.
King, 83 M.J. 115, 120-21 (C.A.A.F. 2023) (applying plain
error review under circumstances of forfeiture).
III. Applicable Law
The version of Article 60, UCMJ, in effect at the time of
Appellant’s court-martial authorized the convening au-
thority to set aside or change a finding of guilty and to “ap-
prove, disapprove, commute, or suspend the sentence in
whole or in part.” Article 60(c)(2), UCMJ, 10 U.S.C.
§ 860(c)(2) (2012). The applicable version of Article 60 fur-
ther stated: “The authority under this section to modify the
findings and sentence of a court-martial is a matter of com-
mand prerogative involving the sole discretion of the con-
vening authority.” Article 60(c)(1), UCMJ; see also R.C.M.
1107(b)(1) (2012 ed.).
This Court has identified two circumstances in which a
convening authority is disqualified from taking this type of
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discretionary post-trial action: (1) the convening authority
“is an accuser, has a personal interest in the outcome of the
case, or has a personal bias toward the accused”; or (2) the
convening authority displays “an inelastic attitude toward
the performance of their post-trial responsibility.” Davis,
58 M.J. at 102 (citations omitted). Stated differently,
“[w]here a convening authority reveals that the door to a
full and fair post-trial review process is closed, . . . the con-
vening authority must be disqualified.” Id. at 103. When
disqualification occurs, a different person authorized under
the UCMJ is designated to exercise the powers outlined in
Article 60. R.C.M. 1107(a) Discussion (2012 ed.).
If a disqualified convening authority takes post-trial ac-
tion on a case, this constitutes error. In order to obtain re-
lief, however, an appellant must make a “colorable showing
of possible prejudice” resulting from the error. United
States v. Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998) (inter-
nal quotation marks omitted) (quoting United States v.
Chatman, 46 M.J. 321, 323-24 (C.A.A.F. 1997)). “By defini-
tion, assessments of prejudice during the clemency process
are inherently speculative. Prejudice, in a case involving
clemency, can only address possibilities in the context of an
inherently discretionary act.” Taylor, 60 M.J. at 195 (inter-
nal quotation marks omitted) (quoting United States v.
Lowe, 58 M.J. 261, 263 (C.A.A.F. 2003)).
IV. Discussion
Because a plain error standard of review applies in this
instance, Appellant first has the burden of showing that it
was “clear or obvious” error for LTG MacFarland to exer-
cise his discretionary authority under Article 60 as the con-
vening authority in this case. See United States v. Adams,
81 M.J. 475, 479 (C.A.A.F. 2021) (citation omitted) (inter-
nal quotation marks omitted). We conclude that Appellant
has not met that burden. Specifically, Appellant has failed
to establish that LTG MacFarland had a personal interest
in the case, was biased against the accused, or had an “in-
elastic attitude” regarding the exercise of his post-trial dis-
cretionary authority. Davis, 58 M.J. at 102.
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We underscore again that Appellant has failed to in-
clude in the record a transcript—or even excerpts or press
clippings—of LTG MacFarland’s remarks. But even as-
suming LTG MacFarland made the comments attributed
to him by Appellant, these statements standing alone do
not establish that LTG MacFarland was disqualified from
subsequent participation as the convening authority in Ap-
pellant’s case. Rather, we agree with the Government,
which makes the following point:
In presenting the medals, LTG MacFarland was
performing an administrative act in his capacity
as Commander of III Corps and Fort Hood.
Although LTG MacFarland made statements
valorizing the victims of the shooting, none of the
statements indicated that he had the kind of
personal connection with the case or bias that
would be disqualifying.
Appellee’s Brief at 156.
Appellant contends that LTG MacFarland’s participa-
tion in the awards ceremony is self-evident “clear or obvi-
ous error” because the Army itself previously opposed a
pretrial awards ceremony on the grounds that it could “ma-
terially and directly compromis[e Appellant’s] ability to re-
ceive a fair trial.” However, we perceive an important dis-
tinction between a pretrial event—where future panel
members could have been affected—and a post-trial event.
Simply stated, in the latter scenario the concern about Ap-
pellant receiving “a fair trial” no longer existed. Thus, ra-
ther than look to the Army’s previous concerns under dis-
similar circumstances, we must instead look to LTG
MacFarland’s statements themselves in order to discern
any evidence of personal interest, bias, or “inelastic atti-
tude” that merited his disqualification from serving as the
post-trial convening authority. Even Appellant’s own char-
acterization of LTG MacFarland’s remarks do not rise to
that level. Accordingly, there is an insufficient basis to con-
clude that Appellant has met his burden of demonstrating
clear or obvious error here.
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Even if we were to conclude that LTG MacFarland’s
participation under Article 60 was clear or obvious error,
Appellant fails in his effort to demonstrate prejudice. Ap-
pellant expressly stated in his post-trial submission to the
convening authority that he was not seeking “mercy” (i.e.,
clemency) from him. As the Government convincingly ar-
gues, “An accused who fails to seek clemency from the con-
vening authority has no basis for asserting [on appeal] that
the convening authority prejudiced him by not granting
him any.” Appellee’s Brief at 161.
Accordingly, based on the record before us, we cannot
conclude Appellant has established plain error for his claim
that LTG MacFarland was disqualified from conducting
the post-trial review of his case.
Grostefon Issue: Whether the Military Judge Erred
in Preventing Appellant from Presenting
a Defense of Others Defense
Pursuant to Grostefon, Appellant, through his counsel,
personally asks us to consider whether the military judge
erred in preventing Appellant from presenting at trial a
“defense of others” defense. To resolve this issue, we first
must determine whether Appellant’s proposed defense was
reasonably raised by his proffered evidence. Upon doing so,
we conclude that there was no proffered evidence to sup-
port a finding that the members of the Fort Hood commu-
nity who were attacked by Appellant wrongfully posed an
imminent threat to anyone in Afghanistan. Accordingly, we
hold that the military judge did not err in denying Appel-
lant the opportunity to argue this proposed defense.
I. Background
On June 4 and 10, 2013, Appellant submitted memo-
randa in support of his proposed “defense of others” defense
(or, as he sometimes referred to it, “the Defense of thirds”).
Appellant’s essential claim was that the war in Afghani-
stan was an illegal American invasion. The Taliban was,
according to Appellant, “the innocent victim of an unlawful
attack by the United States military and did not have a
duty to retreat.” Appellant argued that because the
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American presence in Afghanistan was illegal under inter-
national law, personnel of the United States military were
“fair game” for the Taliban, including “uniformed soldiers
in a designated deployment site getting ready to deploy to
Afghanistan.” Therefore, according to Appellant, “an
armed individual that sympathizes with the illegality of
the attack on the Taliban and attacks targets in its defense
would be permissible.” Appellant requested that the mili-
tary judge “accept the Defense of thirds” as Appellant’s de-
fense and “give instructions to the panel accordingly.”
The military judge ruled that even taking “as true the
facts proffered by [Appellant], the proposed defense of oth-
ers does not apply as a matter of law.” The military judge
recognized that the “principles of self-defense . . . apply to
the defense of another.” However, she concluded that this
defense “was not at issue under any set of circumstances
[presented here] because the victims in Fort Hood, Texas,
posed no imminent or immediate threat of death or griev-
ous bodily harm to anyone in Afghanistan.” Thus, the mil-
itary judge concluded that the “law does not support a de-
fense of others under the facts and circumstances of this
case.”
Before this Court, Appellant maintains his actions were
undertaken in defense of members of the Taliban because
he “apprehended, on reasonable grounds, that death or
grievous bodily harm” was about to be inflicted wrongfully
upon them by the United States military. Appellant’s Brief
at A1-A2. Appellant argues the victims of his attack posed
“an imminent threat to Taliban members” for two reasons:
(1) “military personnel already represented an imminent
danger” as the “United States had already engaged—and
continued to engage—in an illegal attack against the Tali-
ban”; and (2) “those pending deployment to support the
United States operations constituted an imminent threat
to the Taliban.” Id.
II. Standard of Review
The question of whether a special defense applies under
the circumstances of a case is a matter of law, which we
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Opinion of the Court
review de novo. United States v. Tokash, 282 F.3d 962, 967
(7th Cir. 2002) (“The legal sufficiency of a proffered defense
is a question of law and therefore is reviewed de novo.”); see
also United States v. Davis, 76 M.J. 224, 229 (C.A.A.F.
2017) (reviewing de novo whether a defense was “reasona-
bly raised by the evidence”).
III. Applicable Law
“Defense of another may excuse [criminal] liability
. . . .” United States v. Ravenel, 26 M.J. 344, 351 (C.M.A.
1988); see also R.C.M. 916(a) (2008 ed.) (defense of another
does not deny “that the accused committed the objective
acts constituting the offense charged,” but “denies, wholly
or partially, criminal responsibility for those acts”). Mili-
tary law recognizes “defense of another” as a special “de-
fense to homicide.” R.C.M. 916(e)(5) (2008 ed.). This de-
fense requires that the object of the defendant’s protection
have a right to self-defense in their own right and the ac-
cused did “not use more force than the person defended was
lawfully entitled to use under the circumstances.” Id.; see
also United States v. Lanier, 50 M.J. 772, 777-78 (A. Ct.
Crim. App. 1999) (noting that accused who claims the spe-
cial defense of defending another “steps into the shoes of
the defended person”). Therefore, the “principles of self-de-
fense . . . apply to defense of another.” R.C.M. 916(e)(5)
(2008 ed.).
In cases of homicide, an individual has a right to self-
defense where they “[a]pprehended, on reasonable
grounds, that death or grievous bodily harm was about to
be inflicted wrongfully on” that individual, and that the in-
dividual “[b]elieved that the force [the individual] used was
necessary for protection against death or grievous bodily
harm.” R.C.M. 916(e)(1)(A)-(B) (2008 ed.) (emphasis
added). In other words, the right to self-defense arises
where an individual believes that a wrongful use of force is
imminent. See United States v. Bransford, 44 M.J. 736, 738
(C.A.A.F. 1996) (equating “about to be” with “imminent”);
see also United States v. Yanger, 67 M.J. 56, 58 (C.A.A.F.
2008) (finding the “possibility of self-defense was resolved”
in part when the appellant “did not apprehend, reasonably
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or otherwise, imminent bodily harm”); Black’s Law Diction-
ary 898 (11th ed. 2019) (defining “imminent” as “threaten-
ing to occur immediately; dangerously impending” or
“[a]bout to take place”).
The test for whether this special defense may be raised
at trial is whether the accused proffers some evidence of the
elements of the defense. United States v. Johnson, 416 F.3d
464, 468 (6th Cir. 2005) (stating that when an affirmative
defense is raised in a pretrial motion, “if the defendant’s
proffered evidence is legally insufficient to support a . . .
defense, the trial judge should not allow its presentation to
the jury”); Tokash, 282 F.3d at 967 (“[W]here the evidence
proffered . . . is insufficient as a matter of law to support
the affirmative defense a pre-trial ruling precluding the
presentation of the defense at trial is appropriate.”); cf.
United States v. Feliciano, 76 M.J. 237, 240 (C.A.A.F. 2017)
(requiring the military judge to instruct on a defense when
“ ‘there is some evidence in the record, without regard to
credibility, that the members could rely upon if they
choose’ ” (quoting United States v. Behenna, 71 M.J. 228,
234 (C.A.A.F. 2012))).
IV. Discussion
Appellant asserted before the military judge that he at-
tacked his fellow soldiers at the Fort Hood SRP center be-
cause he was protecting members of the Taliban—located
in Afghanistan—from imminent harm. Similarly, he ar-
gues before this Court that American military personnel
posed an “immediate danger” to Afghan fighters because
the United States “had already engaged—and continued to
engage—in an illegal attack on the Taliban.” Appellant’s
Brief at A2. However, the military judge found that any al-
leged threat was simply too remote for the “defense of oth-
ers” defense to apply here. We agree.
The time and distance separating Fort Hood from Af-
ghanistan is obvious. Therefore, there were no objectively
“reasonable grounds” to believe that any of Appellant’s vic-
tims were “about to” inflict harm on members of the Tali-
ban. Without any proffer of evidence on this threshold issue
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Opinion of the Court
of whether there was an imminent threat, Appellant’s spe-
cial defense of “defense of others” was not supported by
“some evidence.”53 Accordingly, the military judge did not
err in refusing to allow Appellant to present a defense to
the contrary. R.C.M. 916(e)(1)(A) (2008 ed.).
Appellant counters that the understanding of
imminence should carry the same meaning here as was
purportedly used by the United States to justify the
targeted killing of Anwar al-Aulaqi (alternatively spelled
“al-Awlaki”). Even if we were to assume there is some
relevance to this line of argument, we are in no position to
second guess the justification given by the United States
that al-Aulaqi posed a continued and imminent threat. See
Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 47 (D.D.C. 2010)
(“[T]he D.C. Circuit has expressly held that the question
whether an organization’s alleged ‘terrorist activity’
threatens ‘the national security of the United States’ is
‘nonjusticiable.’ ” (quoting People’s Mojahedin Org. of Iran
v. U.S. Dep’t of State, 182 F.3d 17, 23 (D.C. Cir. 1999))); see
also El-Shifa Pharm. Indus. Co. v. United States, 607 F.3d
836, 844 (D.C. Cir. 2010) (“It is not the role of judges to
second-guess, with the benefit of hindsight, another
branch’s determination that the interests of the United
States call for military action.”). However, assessing
whether Appellant can be held criminally liable for his
actions falls squarely within our purview. And on that
score, it is axiomatic that when it comes to defense of
others, one must reasonably believe that others are in
53 See Tokash, 282 F.3d at 967 (“To entitle a defendant to
present an affirmative defense to the jury, his proffer must meet
the minimum standard as to each element of the defense . . . .
[and] must present more than a scintilla of evidence that demon-
strates that he can satisfy the legal requirements for asserting
the proposed defense.” (citations omitted) (internal quotation
marks omitted)); Harris v. Scully, 779 F.2d 875, 879 (2d Cir.
1985) (stating the trial judge properly denied a defense of others
jury instruction because “no version of the events warrants an
inference that petitioner reasonably believed that, at the time of
the killing, [the victim] was using or was about to use deadly
physical force against” others).
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Opinion of the Court
immediate danger of unlawful bodily harm. We find there
is no support in the record for Appellant to claim he
reasonably believed members of the Taliban were in
immediate danger of unlawful bodily harm from his victims
at the SRP center. For these reasons, the military judge
properly excluded the “defense of others” defense.54
Unbriefed Issues
In our Briefing Order, United States v. Hasan, 81 M.J.
238, 239 (C.A.A.F. 2021), we invited Appellant to raise
“systemic issues previously decided by this Court but
raised to avoid waiver.” We stated that these systemic “is-
sues may be listed without argument as an exception to
Rule 24(a)” of this Court’s Rules of Practice and Procedure,
54 Appellant cites Holmes v. South Carolina, 547 U.S. 319,
324 (2006), to argue that regardless of whether the “defense of
others” defense was permissible, the military judge erred by pro-
hibiting him from “providing his version of events.” Appellant’s
Brief at A10-A11. However, as we recently noted in United
States v. Beauge, 82 M.J. 157 (C.A.A.F. 2022), the Holmes Court
stated “only rules which ‘infring[e] upon a weighty interest of
the accused and are arbitrary or disproportionate to the pur-
poses they are designed to serve’ will be held to violate the right
to present a complete defense.” Id. at 167 (alterations in original)
(quoting Holmes, 547 U.S. at 324-25). As the Court of Appeals
for the Sixth Circuit recognized in Johnson, 416 F.3d at 468:
[It is] a trial judge’s duty to require a prima
facie showing by the defendant that he can pro-
duce evidence on each of the elements of the de-
fense. A trial judge does not ‘invade’ the province
of the jury when determining, as a preliminary
matter, whether a defendant has met the burden
of introducing sufficient evidence on each of the
elements of an asserted defense . . . .
Indeed, by prohibiting Appellant’s presentation of a nonviable
defense, the military judge rationally prevented the waste of
time and potential confusion that would have accompanied the
admission of irrelevant evidence. Therefore, we do not find a ba-
sis to conclude that the requirement for Appellant to demon-
strate the legal viability of his proposed defense was either arbi-
trary or disproportionate to the purposes served.
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Opinion of the Court
but we directed Appellant to “cite pertinent authority to
support the position taken.” Id. Appellant’s opening brief
with this Court includes the eleven briefed issues ad-
dressed above, and it also lists nine issues specific to this
case and twenty-nine systemic issues regarding capital
punishment.55 However, Appellant did not provide any ar-
gument in support of the latter issues, nor did he cite per-
tinent authority for many of these listed issues as in-
structed by our Briefing Order. Furthermore, Appellant’s
reply brief focuses solely on the briefed issues.
We have reviewed each of these issues and conclude
that Appellant is not entitled to relief.
Judgment
The decision of the United States Army Court of Crimi-
nal Appeals is affirmed.
55 These issues are listed in the Appendix to this decision.
We note that some of the issues labeled as “systemic” by Appel-
lant are, in fact, specific to his case. However, to remain con-
sistent with the order the issues were presented in his brief, we
use the same organizational scheme.
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Appendix56
Part A: Section IV (Case Specific Issues)
A.I
Whether the military judge erred in finding that Appel-
lant’s waiver of counsel was knowing and intelligent when
she received notice from his expert expressing concern over
his “adjudicative capacity” and recommending further as-
sessment for his schizotypal personality but failed to reo-
pen the waiver inquiry, especially in light of the fact that
she knew Appellant refused to submit to psychological test-
ing during his Rule for Courts-Martial (R.C.M.) 706 board.
A.II
Whether the military judge erred to Appellant’s sub-
stantial prejudice by denying his motion for change of
venue.
A.III
Whether the military judge erred by not ensuring ade-
quate voir dire that resulted in a panel that was tainted by
excess publicity.
A.IV
Whether the aggravating factors in this case, to include
“the prosecution exhibits” and “the nature of the weapon,”
were unconstitutionally vague and duplicative. See Jones
v. United States, 527 U.S. 373 (1999).
A.V
Whether the military judge erred by abdicating her re-
sponsibility of courthouse security to the government.
A.VI.
Assuming arguendo that this Court does not overturn
United States v. Dock, whether Appellant’s actions at trial,
to include admitting that he was the shooter, amount to a
56 See Appellant’s Brief at 171-80.
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Opinion of the Court
guilty plea prohibited by Article 45, UCMJ. See also United
States v. McFarlane, 23 C.M.R. 320 (1957).
A.VII.
Whether the military judge erred to the substantial
prejudice of Appellant by denying stan[d]by counsels’ mo-
tion to submit matters in mi[tig]ation and extenuation.
A.VIII
The Government failed to offer reasonable, plausible,
and non-discriminatory reasons to challenge LTC S., a pro-
spective panel member, pursuant to Batson v. Kentucky,
476 U.S. 79 (1986).
A.IX
The cumulative errors in this case compel reversal of
the findings and sentence.
Part B (Systemic Issues)
B.I
Whether the President exceeded his authority in prom-
ulgating aggravating factors in Rule for Courts-Martial
(R.C.M.) 1004.
B.II
Standards applicable to federal and state capital de-
fense counsel have applicability to courts-martial as rele-
vant standards of care, and the Army court’s analysis of
Major Hasan’s case was flawed because of its misapplica-
tion of the guidelines and its determination counsel were
“well-qualified.”
B.III
Under the Supreme Court’s reasoning in Ring v. Ari-
zona, 536 U.S. 584 (2002), Congress unconstitutionally del-
egated to the President the power to enact elements of cap-
ital murder, a purely legislative function.
B.IV
The lack of a system to ensure consistent and even-
handed application of the death penalty in the military
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Opinion of the Court
violates both Major Hasan’s equal protection rights and Ar-
ticle 36, UCMJ. See 18 U.S.C. § 2245 and U.S. Dep’t of Jus-
tice, U.S. Attorney’s Manual § 9-10.010 (June 1998)
(USAM) and 10 U.S.C. § 949a(b)(2)(C)(ii). In contrast to the
USAM, no protocol exists for convening authorities in cap-
ital cases, creating an ad hoc system of capital sentencing.
B.V
The military justice system’s peremptory challenge pro-
cedure, which allows the government to remove any one
member without cause, is an unconstitutional violation of
the Fifth and Eighth Amendments to the U.S. Constitution
in capital cases, where the prosecutor is free to remove a
member whose moral bias against the death penalty does
not justify a challenge for cause. But see United States v.
Curtis, 44 M.J. 106, 131-33 (C.A.A.F. 1996); United States
v. Loving, 41 M.J. 213, 294-95 (C.A.A.F. 1994).
B.VI
Rule for Courts-Martial (R.C.M.) 1004 does not ensure
the goals of individual fairness, reasonable consistency,
and absence of error necessary to allow this Court to affirm
Appellant’s death sentence because R.C.M. 1004 does not
ensure the race of the victim or alleged perpetrator is not a
factor in the death sentence. McCleskey v. Kemp, 481 U.S.
279 (1987).
B.VII
The variable size of the court-martial panel constituted
an unconstitutional condition on Major Hasan’s fundamen-
tal right to conduct voir dire and promote an impartial
panel. Irvin v. Dowd, 366 U.S. 717, 722, 81 S. Ct. 1639, 6
L. Ed. 2d 751 (1961).
B.VIII
The death sentence in this case violates the Fifth, Sixth,
and Eighth Amendments and Article 55, UCMJ, because
the military system does not guarantee a fixed number of
members. Irvin v. Dowd, 366 U.S. 717, 722, (1961).
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Opinion of the Court
B.IX
The role of the convening authority in the military jus-
tice system denied Major Hasan a fair and impartial trial
in violation of the Fifth, Sixth, and Eighth Amendments
and Article 55, UCMJ, by allowing the convening authority
to act as a grand jury in referring capital criminal cases to
trial, personally appointing members of his choice, rating
the members, holding the ultimate law enforcement func-
tion within his command, rating his legal advisor, and act-
ing as the first level of appeal, thus creating an appearance
of impropriety through a perception that he acts as prose-
cutor, judge, and jury.
B.X
Article 18, UCMJ, and R.C.M. 201(f)(1)(C), which re-
quire trial by members in a capital case, violates the guar-
antee of due process and a reliable verdict under the Fifth,
Sixth, and Eighth Amendments.
B.XI
Major Hasan was denied his right to a trial by an im-
partial jury composed of a fair cross-section of the commu-
nity in violation of the Sixth Amendment to the U.S. Con-
stitution. Duren v. Missouri, 439 U.S. 357 (1979). But see
United States v. Curtis, 44 M.J. 106, 130-33 (C.A.A.F.
1996).
B.XII
The selection of the panel members by the convening
authority in a capital case directly violates Major Hasan’s
rights under the Fifth, Sixth, and Eighth Amendments to
the U.S. Constitution and Article 55, UCMJ, by in effect
giving the government unlimited peremptory challenges.
B.XIII
The President exceeded his Article 36 powers to estab-
lish procedures for courts-martial by granting trial counsel
a peremptory challenge and thereby the power to nullify
the convening authority’s Article 25(d) authority to detail
members of the court.
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Opinion of the Court
B.XIV
The designation of the senior member as presiding of-
ficer for deliberations denied Major Hasan a fair trial be-
fore impartial members in violation of the Fifth, Sixth, and
Eighth Amendments to the U.S. Constitution and Article
55, UCMJ.
B.XV
Major Hasan was denied his constitutional right under
the Fifth Amendment to a grand jury presentment or
indictment.
B.XVI
Court-martial procedures denied Major Hasan his Arti-
cle III right to a jury trial. Solorio v. United States, 483 U.S.
435, 453-54, (1987) (Marshall, J., dissenting). But see
United States v. Curtis, 44 M.J. 106, 132 (C.A.A.F. 1996).
B.XVII
This Court lacks the jurisdiction and authority to re-
view the constitutionality of the rules for courts-martial
and the UCMJ because this Court is an Article I court, not
an Article III court with the power to check the legislative
and executive branches under Marbury v. Madison, 5 U.S.
137, 2 L. Ed. 60, 1 Cranch (1803). See also Cooper v. Aaron,
358 U.S. 1 (1958) (the power to strike down unconstitu-
tional statutes or executive orders is exclusive to Article III
courts). But see Loving, 41 M.J. at 296.
B.XVIII
Major Hasan is denied equal protection of law in viola-
tion of the Fifth Amendment as all U.S. civilians are af-
forded the opportunity to have their cases reviewed by an
Article III court, but members of the United States military
by virtue of their status as service members are not. But
see United States v. Loving, 41 M.J. 213, 295 (C.A.A.F.
1994).
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Opinion of the Court
B.XIX
Major Hasan is denied equal protection of law under the
Fifth Amendment to the U.S. Constitution because [in ac-
cordance with] Army Regulation 15-130, para. 3-1(d)(6), his
approved death sentence renders him ineligible for clem-
ency by the Army Clemency and Parole Board, while all
other cases reviewed by this Court are eligible for such con-
sideration. But see United States v. Thomas, 43 M.J. 550,
607 (N-M. Ct. Crim. App. 1995).
B.XX
Major Hasan’s death sentence violates the Eighth
Amendment prohibition against cruel and unusual punish-
ment because the capital referral system operates in an ar-
bitrary and capricious manner.
B.XXI
The death penalty provision of Article 118, UCMJ, is
unconstitutional as it relates to traditional common law
crimes that occur in the U.S. But see United States v.
Loving, 41 M.J. 213, 293 (C.A.A.F. 1994). The Court
resolved the issue against Private Loving, adopting the
reasoning of the decision of the Army Court of Military
Review. See United States v. Loving, 34 M.J. 956, 967
(A.C.M.R. 1992). However, Private Loving’s argument
before the Army court relied on the Tenth Amendment and
Necessary and Proper Clause of the U.S. Constitution. Id.Major Hasan’s argument relies on the Eighth Amendment
to the U.S. Constitution.
B.XXII
The death sentence in this case violates the Fifth and
Eighth Amendments to the U.S. Constitution and Article
55, UCMJ, as the convening authority did not demonstrate
how the death penalty would enhance good order and
discipline.
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Opinion of the Court
B.XXIII
The military capital sentencing procedure is unconsti-
tutional because military judges do not have the power to
adjust or suspend a death sentence improperly imposed.
B.XXIV
Due to the military justice system’s inherent flaws cap-
ital punishment amounts to cruel and unusual punishment
under all circumstances.
B.XXV
R.C.M. 1001(b)(4) is unconstitutionally vague and over-
broad as applied to the appellate and capital sentencing
proceedings because it permits the introduction of evidence
beyond that of direct family members and those present at
the scene in violation of the Fifth and Eighth Amendments.
B.XXVI
R.C.M. 1001(b)(4) is unconstitutionally vague and over-
broad as applied to the appellate and capital sentencing
proceedings because it permits the introduction of circum-
stances which could not reasonably have been known by
Major Hasan at the time of the offense in violation of his
Fifth and Eighth Amendment rights.
B.XXVII
The military judge erred in admitting victim-impact ev-
idence regarding the personal characteristics of the victims
which could not reasonably have been known by Major Ha-
san at the time of the offense in violation of his Fifth and
Eighth Amendment rights.
B.XXVIII
The death sentence in this case violates the Ex Post
Facto Clause, Fifth and Eighth Amendments, separation of
powers doctrine, preemption doctrine, and Article 55,
UCMJ, because when it was adjudged neither Congress nor
the Army specified a means or place of execution.
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Opinion of the Court
B.XXIX
Whether the panel and the military judge were biased
against Appellant.
118