United States v. Kunishige

This opinion is subject to administrative correction before final disposition.
Before
TANG, LAWRENCE, and J. STEPHENS,
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Dexter K. KUNISHIGE
Sergeant (E-5), U.S. Marine Corps
Appellant
No. 201800110
Argued: 20 September 2019 1—Decided: 17 October 2019.
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judges: Colonel Matthew J. Kent, USMC (arraignment, trial,
and post-trial Article 39(a) session); Lieutenant Colonel Mark Sameit,
USMC (motions); Lieutenant Colonel Brian E. Kasprzyk, USMC (mo-
tions). Sentence adjudged 27 September 2017 by a general court-
martial convened at Marine Corps Base Camp Pendleton, California,
consisting of officer and enlisted members. Sentence approved by the
convening authority: reduction to E-1, forfeiture of all pay and allow-
ances, confinement for 39 years, and a dishonorable discharge.
1 The Court heard oral argument in this case at the United States Naval Acade-
my, Annapolis, Maryland, as part of the court’s Project Outreach.
Typographical corrections made to pages 20 and 24
as of 18 October 2019.
United States v. Kunishige, No. 201800110
Opinion of the Court
For Appellant: Lieutenant Daniel E. Rosinski, JAGC, USN (argued).
For Appellee: Captain Brian L. Farrell, USMC (argued); Lieutenant
George R. Lewis, JAGC, USN (on brief); Major Kelli A. O’Neil, USMC
(on brief).
Senior Judge TANG delivered the opinion of the Court, in which
Judges LAWRENCE and J. STEPHENS joined. Judge J. STEPHENS
filed a separate concurring opinion.
_________________________
PUBLISHED OPINION OF THE COURT
_________________________
TANG, Senior Judge:
Appellant was convicted of 13 total specifications alleging conspiracy;
violation of a lawful order; rape; sexual assault; sexual assault of a child;
sexual abuse of a child; aggravated assault; assault and battery; receiving,
possessing, viewing, and soliciting child pornography; obstructing justice; and
adultery in violation of Articles 81, 92, 120, 120b, 128, and 134, Uniform Code
of Military Justice (UCMJ), 10 U.S.C. §§ 881, 892, 920, 920b, 928, and 934.
He was charged but acquitted of an additional nine specifications, two of
which were the result of the military judge’s action under RULE FOR COURTS-
MARTIAL (R.C.M.) 917, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2016
ed). 2
The specifications arise from Appellant’s interactions with three separate
victims. The underlying facts are not pertinent to the resolution of Appel-
lant’s case.
Appellant raises 10 assignments of error (AOEs). He challenges various
evidentiary rulings, the military judge’s instructions, and the legal and
factual sufficiency of the evidence. He avers he received a disparate sentence.
Two AOEs relate to the manner by which the convening authority (CA)
selected the members, alleging that the CA’s staff judge advocate (SJA)
should have revealed certain irregularities in the member selection process
2 Pursuant to R.C.M. 917, the military judge dismissed the sole specification of
the Additional Charge and Specification 1 of Additional Charge IV.
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Opinion of the Court
during voir dire and that the CA violated Article 25, UCMJ, 10 U.S.C. § 825(1986) by summarily reappointing the same improperly constituted members
panel the military judge dismissed. Related to the alleged Article 25 infirmi-
ties, Appellant also asserts the Government violated his right to discovery
relating to the selection of the members panel. We find this AOE has merit,
reverse the findings and sentence, and authorize a rehearing.
I. BACKGROUND
In this case, the CA intended to—and did—use grade as a proxy to nomi-
nate only senior members for Sergeant Kunishige’s court-martial panel. The
civilian defense counsel timely and specifically requested discovery of all
communications with the potential members, and the military judge ordered
the Government to produce them. The Government did not comply, repeated-
ly failing to disclose crucial information concerning this tainted selection
process, even after the trial was completed and Appellant had been sen-
tenced.
The withheld emails revealed that the panel president, Colonel U, was
nominated solely because he was a colonel, and he was informed this was the
reason he was chosen. The emails also revealed that Colonel U solicited and
forwarded member nominees from within his Battalion, two of whom sat on
Appellant’s panel.
The Government’s discovery failure, and the military judge’s failure to
administer proper accountability measures, precluded effective voir dire of
Colonel U about the members selection process—including his knowledge of
why he was selected and his role in nominating other members. Had the
Defense been able to effectively voir dire Colonel U on these matters, the
Defense could have challenged Colonel U for cause under the implied bias
standard. The military judge would have been obliged to apply the liberal
grant mandate. However, because the Government provided piecemeal and
belated discovery after findings, 3 the Defense had no recourse other than to
move for a mistrial—an “unusual and disfavored,” “last resort” remedy with a
much higher burden—which the military judge denied. United States v. Diaz,
59 M.J. 79, 90 (C.A.A.F. 2003).
We find that had the Government fulfilled its discovery obligations in a
timely manner, Colonel U would have been subject to excusal due to implied
3 The military judge denied a defense request to abate the proceedings until the
requested discovery was provided.
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bias. Because the Defense was foreclosed from making this challenge at the
appropriate time, we are persuaded that in the eyes of the public, Sergeant
Kunishige received something less than a court of fair, impartial members.
Our determination turns on the details of the members selection process,
particularly as it relates to Colonel U, and the discovery timeline relating to
that process. We detail the facts pertinent to these issues in turn.
A. Members Selection Process Focused on Senior Members and
Hand-Selected Colonel U as the Panel’s “Colonel”
Appellant’s case was referred to the general court-martial convened by
Commanding General, First Marine Division, as established in General
Court-Martial Convening Order (GCMCO) 2-15. The process of selecting
members for Appellant’s court-martial took place in two phases. First,
Appellant’s court-martial was docketed for July 2017 aboard Marine Corps
Air Ground Combat Center Twentynine Palms, California. While the
members selection process was in progress but not yet complete, the military
judge continued the trial until September 2017 and changed the venue to
Marine Corps Base Camp Pendleton, California. Then the process resumed,
with the new date and location in mind.
1. Aborted attempt to solicit members for July court-martial
In June 2017, the SJA began the process of identifying potential members
who were available to serve on Appellant’s court-martial in July 2017. The
G-1 Operations Officer, Captain G, took the lead in soliciting potential
members.
Colonel U, the eventual panel president, was notified that he was a can-
didate to serve on Appellant’s July 2017 court-martial. Colonel U was a
recipient of the following email exchange between Captain G and the Division
Chief of Staff.
Captain G, apparently tasked with providing two colonel nominees, wrote:
Both [Colonel W] and [Colonel S] will be in Quantico during
the dates for the GCM. [Colonel U] has one conflict on 10 July
(Company Change of Command), however did state he is will-
ing to support if needed. I would greatly appreciate your guid-
ance and direction for a second Colonel. 4
4 AE CXV at 45.
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The Chief of Staff responded, “U[ ] it is . . . I do not have any other Colo-
nels in the Div at that time!” 5 Colonel U received this email, and he complet-
ed and submitted a member questionnaire. Colonel U responded, “Task
acknowledged. I’ll move [Major D] from [operations officer] to [executive
officer] asap and she’ll have Acting authority while I’m away.” 6
Before the convening authority finalized the members panel for the
planned July trial, the military judge continued the trial until September
2017 and ordered the venue change. On 27 June 2017, Captain G notified
leaders in the Division, including Colonel U, of the change. She asked that
any previously completed questionnaires be retained and promised to
coordinate members selection as the September trial date approached.
Members’ selection efforts ceased until August 2017.
On 3 August 2017, the commanding general signed GCMCO 1-17, which
appointed five officer members. Appellant’s charges were never referred to
this convening order. 7 Nevertheless, in August 2017, the commanding
general modified GCMCO 1-17 instead of GCMCO 2-15, the court-martial to
which Appellant’s case had been referred, in order to appoint members to
Appellant’s court-martial. The Defense did not object.
2. Staff judge advocate’s coordination with commanding general and G-1
operations officer to solicit nominees for GCMCO 1a-17
To select members for Appellant’s September court-martial, the SJA con-
sulted the commanding general for guidance. He told the SJA that he did not
want any enlisted Marines below the grade of gunnery sergeant or any
officers below the grade of captain to serve on the panel. With this impermis-
sible guidance in mind, and without providing contrary advice on the
impropriety of excluding members by grade who were otherwise senior in
rank and grade to Appellant, the SJA again coordinated with Captain G to
solicit specific nominees who met the commanding general’s established
grade criteria and who were available for the dates of Appellant’s court-
5 Id. at 44.
6 Id.7 The trial counsel represented GCMCO 1-17 as modifying GCMCO 2-15. Record
at 180. And upon assembly of members, the trial counsel announced, “This court is
convened by . . . General Court-Martial Convening Order No. 2-15 dated 30 Septem-
ber 2015, as amended by General Court-Martial Convening Order No. 1-17 . . . .” Id.
at 223. GCMCO 1-17 does not refer to GCMCO 2-15 nor is there any evidence in the
record that GCMCO 1-17 explicitly modified or amended it.
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martial. The SJA told Captain G how many potential members to solicit, and
from which required grades.
Based on the SJA’s direction, Captain G prepared a message, described as
an “AMHS message,” 8 which is used to communicate administrative matters
within the Division. She sent the message to leaders of subordinate com-
mands, directing six elements within the Division to nominate a total of 30
potential members, specifically delineated by grade. For instance, Colonel U’s
Headquarters Battalion was directed to provide two lieutenant colonels, one
major, two captains, one sergeant major, and one gunnery sergeant.
3. Colonel U forwards potential panel members from Headquarters Battal-
ion and is then chosen as the panel’s “Colonel”
a. Colonel U’s role in nominating members
As the commanding officer of Headquarters Battalion, Colonel U had
either administrative or operational oversight of over 1,200 Marines. All
members of the Division staff, including Marines assigned to the “G-shops,” 9
are assigned to Headquarters Battalion. Colonel U exercised administrative
oversight over all Marines in the Battalion. However, he did not exercise
operational control over any of the Marines on the Division staff.
When Captain G sent the AMHS message soliciting potential members for
the September trial date, the Headquarters Battalion executive officer and
adjutant were unavailable. Colonel U took on the task of soliciting members
himself. 10
He determined the Battalion staff would fill one captain billet as well as
the senior enlisted billets. He directly solicited a captain volunteer, emailing
three captains, asking them, “Need one of you (or a [captain] within your
organic company, not Division Staff) as a volunteer for the subj[ect] task
please.” 11 As a result, one of the email recipients volunteered and Colonel U
thanked him. The Battalion sergeant major identified nominees to fill the
senior enlisted billets.
8 The Automated Message Handling System (AMHS) is used by the Marine Corps
for organizational messaging.
9 The “G-shops” pertinent to this opinion are the G-1, G-3, and G-4, which repre-
sent the personnel, operations, and logistics elements of the General’s Division staff.
10 See AE CXV at 38-40.
11 Id. at 31.
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Colonel U determined that, based on the grade of the personnel request-
ed, the remainder of the Battalion’s support would come from Division staff—
over whom he did not exercise operational control. Colonel U asked the G-
shops to fill the second captain position, and to provide one major and two
lieutenant colonels. Although the individual officers’ supervisors provided
nominees, Colonel U personally decided which of multiple nominees—for at
least one position—to forward to Captain G for potential inclusion on the
panel.
In order to solicit potential members, Colonel U sent an email to several
officers, soliciting volunteers to fill the four remaining billets. 12 He wrote,
“You know your [operational tempo] and officer availability best. I would like
to first ask for volunteers from your sections before resorting to specified
tasks.” 13 He asked the individual G-shop leaders to “[p]lease nominate as
[they] can support.” 14 He did not allocate the tasks by grade.
In response to Colonel U’s email, a lieutenant colonel, the Division’s In-
spector General (IG), replied and noted that he had usually volunteered to
serve on courts-martial in the past but that he might not be an appropriate
member while serving as the IG. Colonel U promised to consult the Division’s
SJA and did so. The SJA replied to Colonel U and the IG and noted that it
“could be a potential conflict of interest.” 15 Colonel U replied, “Judge, good
advice, thank you,” and also thanked the IG for his consideration. 16
Additionally, Colonel U communicated with the Division SJA to confirm
the rigidity of the imposed grade requirements. He then emailed, “Confirmed
with the SJA that you can, if desired, go one [grade] up (but not one down).” 17
The G-4 nominated Major R, who eventually served on the panel along-
side Colonel U. Colonel U forwarded Major R’s name to the G-1. After Major
R was nominated, leaders within G-6 attempted to nominate a different
major—Major B. However, Colonel U rejected that nominee, writing “Many
thanks for the support but G-4 already volunteered for the Major’s seat.
12 Id. at 21.
13 Id.14 Record at 1071.
15 AE CXV at 24.
16 Id.17 Id. at 3.
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Could you possibly support with a [lieutenant colonel] . . .[?]” 18 This solidified
Major R’s position in the pool of nominees to the panel. Although Colonel U
had already forwarded Major R’s name to the G-1, the court member ques-
tionnaires had not yet been collated, and there were still many members to
be identified. 19 However, Colonel U prioritized Major R over Major B.
As the deadline approached to provide nominees to the G-1, he reiterated
his request to the various Division staff G-shops, writing, “G-1/G-2/G-3, We
are still in need of two [lieutenant colonels] and a [captain] (shy of G-6 being
able to fill one of them). Please let me know by COB today.” 20 Then the G-2
organization nominated Captain V to Colonel U. 21
Later, Colonel U tasked the “last [lieutenant colonel]” to G-3, writing,
“[Colonel J] will provide a name today.” 22 When the G-3 had still not provided
a name by 17 August 2017, Colonel U sent Colonel J an email reiterating the
deadline and asking whether G-3 could fill the requirement. Colonel J
nominated the member who eventually sat on the panel—Lieutenant Colonel
S. In response, Lieutenant Colonel S emailed Colonel U and indicated he had
submitted his questionnaire. 23
In total, Colonel U submitted seven names, two of whom served on the
panel with him.
b. Selection of Colonel U as a member
Because Colonel U was the only “Colonel[] in the Div[ision],” he was set to
be nominated as a potential member had Appellant’s trial taken place in
July. Colonel U retained his member’s questionnaire as directed.
After the July court-martial was postponed, Colonel U did not know
whether he would be appointed to the court-martial panel for the later dates.
Once the new September court-martial dates were identified, Colonel U
received and filled the requirements under the AMHS message, forwarding
18 Id. at 20.
19 Colonel U sent a preliminary email at 0830 on 15 August 2017 with the names
of two of the four officers owed by Headquarters Battalion. Id. at 27. The G-6
nominated an additional major around 1630 that same day. Id. at 20.
20 Id. at 10.
21 Id. at 13.
22 Id. at 9.
23 See id. at 3.
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seven nominees to the G-1 to be provided to the SJA. After he provided the
potential members requested in the AMHS message, he was again identified
as the colonel member of the panel.
Colonel U learned that he would be submitted for the September panel
when he received an email forwarded from a captain in the SJA’s office
relating to the selection of colonels for the court-martial. The email read in
part, “G-1 sent out an AMHS pulling members from commands. [Colonel U]
was not on it as the direction was to contact the Cols separately/directly.” 24
The record does not indicate who selected Colonel U for the September court-
martial, or why. Colonel U responded directly to the SJA’s office, attaching
the questionnaire he had already submitted in June.
4. Commanding General signs Amending Order 1a-17
The six battalions returned a total of 29 members’ questionnaires, exclud-
ing enlisted members below the grade of gunnery sergeant, all chief warrant
and warrant officers, and all officers below captain. The SJA prepared an
amending order that appointed 15 specific members, including Colonel U and
at least two other officers he nominated—Lieutenant Colonel S and Major R.
In addition, the SJA provided or made available all 29 potential members’
questionnaires as well as an “alpha roster.” The alpha roster did not list the
Article 25 criteria but merely listed name, billet, primary military occupa-
tional specialty, unit, beginning date of tour, and end of active service. The
SJA recited the Article 25 criteria in an additional memorandum. The
commanding general signed the draft order as presented and appointed the
15 members the SJA included on the draft order.
Although the appellant’s charges were referred to GCMCO 2-15, the CA
issued GCMCO 1a-17, deleting the five members from GCMCO 1-17 and
appointing the 15 members the SJA recommended. This amending order
modified GCMCO 1-17 “only for the case of U.S. V. SERGEANT DEXTER K.
KUNISHIGE, USMC.” 25
As we will further discuss below, on the first day of trial, the military
judge dismissed this panel and ordered the CA to appoint a new, properly-
selected members panel. That same day, the commanding general signed
GCMCO 1b-17, again amending GCMCO 1-17 only for Appellant’s case. This
order reappointed the same exact 15 members listed in GCMCO 1a-17.
24 AE XXXII at 6.
25 General Court-Martial Convening Order 1a-17 of 25 Aug 17.
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Following United States v. Bartee, 26 the military judge rejected all further
Article 25 challenges to the panel.
B. The Government Failed to Provide Discovery That Would Have
Revealed Colonel U’s Role
The United States contends that Appellant waived his right to relief for
any discovery violation that may have occurred. A detailed analysis of the
record of trial is required to decide this issue. We resolve this issue in
Appellant’s favor.
1. Discovery requested, ordered, and provided during trial
At arraignment, the military judge directed the Government to provide
the defense counsel any court-martial amending order and the members’
questionnaires no later than 6 September 2017. 27 After the civilian defense
counsel received the members’ questionnaires on 12 September 2017, he
noticed the convening order apparently excluded “staff sergeants, chief
warrant officers, warrant officers, second lieutenants, and first lieutenants.” 28
On 13 September 2017, he sent an email to trial counsel, requesting dis-
covery in the form of all communications relating to the solicitation of
members, but received no response from the Government. 29 The next day, he
followed his request with a telephone conversation with trial counsel during
which the trial counsel incorrectly asserted that the CA did not use a
solicitation email to request potential members for Appellant’s court-martial.
The trial counsel promised to disclose the routing sheet that accompanied the
draft convening order.
Three days after the conversation with trial counsel, the civilian counsel
had still not received the routing sheet or any further discovery. He filed a
motion to compel discovery and to dismiss the case because he alleged the CA
committed unlawful command influence by “stack[ing]” the panel with senior
members. In his motion, he noted he sought, among other items: “all commu-
nication pertaining to this court-martial to any member or potential mem-
26 76 M.J. 141 (C.A.A.F. 2017).
27 Record at 174.
28 Id. at 182.
29 Id. at 198.
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ber.” 30 The Government responded by providing the routing sheet used to
submit GCMCO 1a-17 to the CA and the alpha roster that was available for
the CA’s review but no additional responsive materials. 31
On 18 September 2017, the day the trial was set to begin, the court heard
argument on the Defense motion. 32 The civilian defense counsel challenged
the panel established in GCMCO 1a-17 as not being properly constituted
under Article 25. Among other arguments, the Defense argued the order
impermissibly excluded members based on grade. The SJA testified and
described the process he used to solicit potential members, including the
AMHS message. The SJA indicated that members were, in fact, excluded on
the basis of grade at the commanding general’s direction.
Finding that the CA impermissibly used grade as proxy for the Article 25
factors, the military judge dismissed the panel appointed in GCMCO 1a-17.
Then the parties discussed whether the civilian defense counsel’s discovery
request and motion to compel discovery remained viable after the military
judge invalidated GCMCO 1a-17.
At that point, the civilian defense counsel reiterated that he still request-
ed:
[T]o compel the production of solicitations for members for the
original panel and modified panel, including, but not limited to
emails, memos, any communications with the members. We still
would like the Court to compel the production of [those] be-
cause here at court we were told there [weren’t] any, and now
we know that there are solicitation memos that are out there. 33
In response, the military judge asked whether he sought just the AMHS
message—which had not been provided—or any additional emails. The
civilian defense counsel responded that he wanted the AMHS message and
Appellate Exhibit (AE) XXVI. Counsel attached two memoranda from the SJA
30
to the CA—one nominating 15 members for the convening order and another that
recited the Article 25, UCMJ factors—and the members’ questionnaires that were
provided to the CA.
31 See Appellate Exhibit XXVII.
32 Record at 181.
33 Id. at 204 (emphasis added).
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“emails going back and forth between G-1, when they submitted the nomi-
nees.” 34
The military judge noted that the CA could pick an entirely new panel,
rendering discovery relating to the prior panel unnecessary. The civilian
defense counsel replied that if the CA were to assemble an entirely new
panel, he would request the “solicitation that goes out” in support of the new
panel. 35 But if the CA—according to past practice—merely ordered the same
panel, the civilian defense counsel indicated that he “would like the solicita-
tion memo that went out originally.” 36
The military judge held the issue was not yet ripe, as the CA could con-
ceivably appoint an entirely different panel. The military judge adjourned
court until a new convening order could be completed. He admonished the
Government, “Government, I encourage you to be diligent in your discovery
obligations, as they are persistent.” 37
The very same day, on 18 September 2017, the CA signed GCMCO 1b-17,
which reappointed the exact same members as GCMCO 1a-17. The SJA
emailed the amending order that evening.
The court reconvened the next day. The trial counsel defended the new
convening order, relying on Bartee and a memo signed by the CA stating that
he was “convinced these members possess the requisite age, education,
training, experience, length of service, and judicial temperament to serve on
this court-martial.” 38 She indicated the CA considered some additional
questionnaires when he determined to reappoint the same members. 39 She
also argued, “So the [Government] believes we have met our burden of
providing an updated convening order as well as all the requested discovery
by [Defense] . . . .” 40
Civilian defense counsel disagreed that the Government had fulfilled its
discovery obligations. He said, “We have received the [AMHS] message that
34 Id. at 205.
35 Id.36 Id. at 205.
37 Id. at 205.
38 AE XXIX.
39 Record at 206. The CA was provided four additional questionnaires.
40 Id.12
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Opinion of the Court
went out. We haven’t received any of the messages that came back.” 41 He
specifically noted he sought “information coming back from the subordinate
commands,” meaning “the e-mails and content of those e-mails and communi-
cations that went to the proposed members” and “communication that went
from that subordinate command to that member to fill . . . out” the members’
questionnaire. 42 He specifically noted that he requested “the actual solicita-
tion information that went back and forth to these commands” in response to
the original tasking message. 43
The civilian defense counsel continued to challenge the members panel on
Article 25 grounds. He argued that the CA still categorically excluded
members of specific grades, repeating the same error that afflicted GCMCO
1a-17, because the email sent to solicit the four additional questionnaires also
excluded lower ranking members. However, citing Bartee, the military judge
denied the challenge and allowed the panel established by GCMCO 1b-17—
which was identical to the panel established in GCMCO 1a-17—to hear
Appellant’s case.
Addressing the discovery request, the military judge asked the trial coun-
sel, “Are there items of discovery that are responsive to the defense request
that have not been produced?” to which the trial counsel responded, “No, sir.
We provided everything that we could think to gather that he has request-
ed.” 44 Having provided the email that was used to solicit new members on 17
September 2017, she replied, “So there isn’t anything else, I think. From
what I understand, defense is saying, now, that they want e-mails that were
sent from the regimental commanders. I’m not even sure where that is
coming from.” 45
In order to clarify the prior request, the defense counsel said,
And we know that a solicitation went out now for sure, and
why is it so difficult to go to the G-1 and say, “Send me every e-
mail that came back; go out to the same people that you sent
41 Id. at 207.
42 Id.43 Id. at 208.
44 Id. at 216.
45 Id.13
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the e-mail soliciting members for; ask them for the e-mails that
they sent out and give them to me.” 46
When the military judge asked for a list of requested items, defense coun-
sel answered,
Sir, I’m asking for all solicitations for members for the orig-
inal panel and modified panels to include, but not limited to, e-
mails; memos; I already have the alpha roster, but if a new one
went to the convening authority, I wanted [sic] that; please
provide any other memo that accompanied the selection pack-
age; please provide any route sheet that accompanied the
package; please provide any communication with the members
to include, but not limited to, e-mails or memos. 47
In response, the trial counsel stated she relayed the request to the SJA’s
office and “everything that we received, we’ve turned over to defense coun-
sel.” 48 The military judge admonished:
When you are standing up [sic] this courtroom in that seat, you
are speaking on behalf of the big G government. So I don’t want
to hear about miscommunications or misunderstandings be-
tween the trial shop and the [SJA’s] office. What you are doing
right now is explaining whether or not the government of the
United States has complied with its discovery obligations in the
case of United States v. Kunishige. 49
The military judge directed the trial counsel, “[E]ither tell me that you
have complied with the entirety of the discovery request from the defense, or,
if you have not, how you have failed, and how long it will take you to com-
ply.” 50
Then the court recessed. When the court reconvened, the military judge
stated the trial counsel informed him she had “coordinated with the staff
judge advocate’s office . . . and informed the Court that the . . . coordination e-
mails between subordinate units and Division that gave rise to the . . .
46 Id. at 217.
47 Id. at 217 (emphasis added).
48 Id.49 Id. at 218.
50 Id.14
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nominations are being assembled into a single PDF and will be sent over
shortly.” 51
The military judge then issued his ruling rejecting the Defense challenge
to the panel in GCMCO 1b-17. He concluded by stating, “Trial counsel, the
discovery obligations remain. Produce those as soon as they are available and
attach them as appellate exhibits to . . . the record.” 52 Then the military judge
closed the issue and proceeded with trial, stating he believed the defense’s
“record [was] made,” but he would provide additional opportunity to add
comments to the record. 53 He then moved on to other issues and eventually
proceeded to impanel the members and conduct voir dire. By that point, the
Defense had received communications included in AE XXIX, but had not yet
received any emails exchanged among Division leaders to identify the
potential court-martial members who would be asked to provide members’
questionnaires.
At about noon on 19 September 2017, during voir dire, the civilian de-
fense counsel received a few more responsive emails, but not all of the
communications that were subject to the military judge’s order. 54 This batch
of emails was appended to the record as AE XXXII, which primarily consisted
of emails between the G-1 staff and subordinate units seeking questionnaires
from the members whose names had already been forwarded to the G-1 staff
as potential members. Specifically, the staff compared the list of nominees to
questionnaires received and emailed to solicit the remaining questionnaires.
The civilian defense counsel noted that he desired the communications that
resulted in the list of nominees, not just the communications that yielded
questionnaires from the already-chosen nominees.
Noting the discrepancy, the civilian defense counsel raised the issue with
the military judge, arguing that he still had not received all emails sent back
and forth to solicit members. The military judge would not address the issue
51 Id. at 218-19.
52 Id. at 220.
53 Id.54 Id. at 358-59. This was AE XXXII, which primarily consists of emails between
the G-1 staff and subordinate units seeking questionnaires from the members whose
names had already been forwarded to the G-1 staff as potential members. Specifical-
ly, the staff compared the list of nominees to questionnaires received and emailed to
solicit the remaining questionnaires.
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and directed the civilian defense counsel to work with the trial counsel first.
Then court adjourned for the evening on 19 September 2017.
The civilian defense counsel filed a second motion to compel discovery
that same evening. 55 In this motion, civilian defense counsel sought “all
communications from and within [First] Marine Division pertaining to the
solicitation, nomination, and selection of members in this case.” 56 Counsel
also moved to “[a]bate the proceedings until the evidence requested is
produced—especially since the defense has been requesting it since Septem-
ber 13-14, 2017.” 57
On the morning of 21 September 2017, civilian defense counsel raised his
written motion with the military judge. The trial counsel stated the emails
the Government provided midday on 19 September 2017 consisted of “e-mails
between the SJA, the G1, G1 [to] the 1st Marine Regiment, 1st Marine
Regiment back to the G1, and G1 back to the SJA.” 58 The civilian defense
counsel reiterated that he sought all emails sent back and forth “up and
down the chain regarding solicitation of nominees” for Appellant’s court-
martial. 59 He summarized his request, “In short, we’re requesting all
communications pertaining to the members’ names and how the members’
names and questionnaires were obtained.” 60
The military judge deferred additional discussion until the members were
dismissed for the day. When he addressed the issue later that evening, the
assistant trial counsel argued the Defense had not shown relevance and
necessity, at which point the military judge reminded the Government that
he had already ordered it to produce the emails. The assistant trial counsel
stated the Government believed the military judge’s order was limited to “all
e-mails from the SJA to the G-1, all e-mails from the G-1 down to subordinate
commands to the adjutant level, and then traffic going back up.” 61 The
assistant trial counsel twice argued that the Government had fully complied
55 AE XXXVII. This filing attached many of the emails the Defense had received
to that point, but which indicated that further emails likely existed.
56 Id. at 4.
57 Id.58 Record at 543.
59 Id. at 544.
60 Id. at 544-45.
61 Id. at 688.
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with its discovery obligations and answered “yes” when the military judge
asked whether the Government had produced “[a]ll e-mails related to the
production of those panels, of those convening order modifications.” 62
However, based on a prior conversation with the regional trial counsel,
the civilian defense counsel contested the accuracy of the assistant trial
counsel’s representation. The military judge then reiterated his earlier ruling
of 19 September 2017, stating:
Let me be perfectly clear in my ruling. All electronic mail
transmissions, all communications between elements of the di-
vision that gave rise to the formation of the court-martial con-
vening order modifications relevant to this case are to be pro-
duced. 63
The military judge did not explicitly rule on the Defense motion to abate
the proceedings. However, by this time the trial on the merits had been
underway for three days, and he clearly indicated that he intended to proceed
with trial while the Government fulfilled its discovery obligations, stating,
“I’m not inclined to use time while we’re actively . . . litigating this case for
this purpose since it’s not relevant to the trial on the merits, but an appellate
issue.” 64 After the military judge clarified his 19 September 2017 ruling on 21
September 2017, the Government produced no additional discovery until
after the members returned several findings of guilt.
After findings were announced on the evening of 26 September 2017, the
military judge inquired into the Government’s progress in fulfilling its
discovery obligations pursuant to the judge’s discovery order. The assistant
trial counsel stated that he received an additional “batch” of emails which
would be provided to defense counsel “in the morning,” ostensibly referring to
27 September 2017. 65
On 27 September 2017, the parties presented their sentencing cases, and
the members announced their sentence. At some point that day, the Govern-
ment provided what it at least tacitly represented to be a complete discovery
62 Id.63 Id. at 689.
64 Id. at 688.
65 Id. at 960.
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response fulfilling the military judge’s order of 19 September 2017. 66 Follow-
ing announcement of sentence and departure of the members, the civilian
defense counsel stated, “[W]e had the opportunity to review, at least part of
the e-mail traffic that’s been provided to us, and we think there’s substantial
issues. We anticipate filing a post-trial motion on it, sir.” 67
2. Discovery provided after trial
The Defense filed a motion for a post-trial Article 39(a) hearing and a
mistrial, arguing that the CA violated Article 25 and exerted unlawful
command influence in assembling a stacked members panel.
Even this hearing—brought on by the Government’s error—was fraught
with delay and more Government-caused error. The post-trial Article 39(a)
session was originally convened on 27 November 2017. In preparation for this
hearing, the civilian defense counsel had requested production of several
officers, including the commanding general, SJA, and Colonel U. He emailed
the trial counsel to ascertain the Government’s intentions. The trial counsel
replied, “The government does intend to produce those witnesses.” 68
However, contrary to her response, on the day of the hearing, the trial
counsel indicated her response was an error, and that she intended to state
that the Government would not produce the witnesses. As a result, the
military judge postponed the hearing until 20 December 2017, permitting the
Defense to file a motion to compel production of witnesses for the hearing.
Even with this delay, when the court reconvened on 20 December 2017,
the trial counsel provided a trove of responsive discovery less than an hour
before the hearing began—AE CXV. The emails in AE CXV were subject to
the military judge’s discovery order. This batch of emails came from Colonel
U, the panel president, and, according to Colonel U, had been provided to the
Government sometime in December 2017—after the previously scheduled
post-trial Article 39(a)—and roughly two to three weeks before the 20
December 2017 hearing date.
The emails in AE CXV revealed the extent of Colonel U’s involvement in
soliciting potential members from Headquarters Battalion including two
members who served on the panel. Additionally, the emails in AE CXV
66Defense counsel appended this batch of discovery on a DVD to their post-trial
motion for a mistrial. These are also appended to the Record as AE CVIII.
67 Record at 1046.
68 AE CXII at 4.
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revealed, for the first time, that the Division Chief of Staff specifically chose
Colonel U as a member because he was a colonel, and that the Chief of Staff
told Colonel U as much.
3. Why it was a discovery violation
The Government provided discovery to the Defense on approximately four
separate occasions, which we will refer to as: Group (1), in response to the
Defense motion to compel discovery, on 17 or 18 September 2017—prior to
voir dire, the Government provided the alpha roster, SJA’s memoranda, and
the routing sheet that accompanied the draft convening order; Group (2) on
19 September 2017—during trial on the merits, the Government provided a
disk containing emails between the SJA’s office and the G-1; Group (3) on 27
September 2017—during pre-sentencing proceedings, the Government
provided a disk containing what it tacitly represented to be all emails
responsive to the military judge’s order; and Group (4) on 20 December
2017—long after trial adjourned, the Government provided additional emails
from Colonel U.
All of the items produced were covered by the military judge’s 19 Septem-
ber 2017 order. The Government now argues that the trial counsel complied
with the military judge’s order, noting that that the military judge is permit-
ted to regulate the time, place, and manner of disputed discovery under
R.C.M. 701(g)(1). The Government argues the military judge’s order permit-
ted the trial counsel to provide discovery after findings and after trial. We
disagree.
From the inception of the military judge’s involvement in this issue, the
military judge urged the Government to act with diligence. Instead of doing
so, the Deputy SJA only endeavored to disclose the responsive emails at the
end of trial. In his email requesting the information from the pertinent
offices, he wrote, “We have until the end of the court-martial to comply which
I believe will be over on Tuesday. I apologize for the short fuse and appreciate
everyone’s assistance.” 69 However, the military judge never stated that the
Government had until the end of the trial to comply with his discovery order.
In light of the matters sought—which pertained to how individual mem-
bers were nominated to Appellant’s panel—the discovery had utility to the
Defense only if it could be used to conduct voir dire of the members. Even
69 AE CVIII, which contains an email sent from Deputy SJA, Major N, to various
leaders within the Division, dated 21 September 2017, 5:46 p.m., Subject: Court
Ordered Discovery.
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after the members were impaneled, for good cause, the Defense could have
requested to conduct additional voir dire or to challenge a member based on
newly-discovered information. Though not be ideal, such a course of action
would have been preferable to committing error that, once findings were
reached, could only be resolved by a mistrial.
Discovery Groups (1) and (2) contained no specific details about the meth-
ods used at the battalion level to solicit members for Appellant’s court-
martial. Discovery Group (3) contained an oblique reference that Colonel U
assisted in soliciting members from Headquarters Battalion. The email did
not name Colonel U but was sent by a senior enlisted leader within the
Battalion, writing “CO tasked the Officers.” 70 But this email was not dis-
closed until after findings. The details of Colonel U’s specific efforts in
soliciting potential members were not disclosed until the trial counsel
provided Group (4) on 20 December 2017. We need not speculate whether the
Government’s actions were deliberate or whether they simply could not be
made to care about matters they apparently believed to be ancillary to the
case at hand. At a minimum, the Government continually failed to comply
with the military judge’s clear order and repeatedly violated its discovery
obligations.
We next analyze whether these persistent violations entitle Appellant to
relief.
II. DISCUSSION
A. Did Appellant Waive the Right to Relief from a Discovery Viola-
tion?
The Government concedes Appellant did not waive his right to receive
discovery. In spite of this concession, the Government argues Appellant
waived his right to relief from this discovery violation.
The Government argues that the civilian defense counsel waived Appel-
lant’s right to relief for the discovery violation by: (1) acquiescing to the
military judge’s remedy; (2) “not re-raising the issue requesting a continuance
70 Email from Sergeant Major C to Master Sergeant O, of 14 August 2017, Sub-
ject: Re: SOLICITATION FOR GENERAL COURT MARTIAL MEMBERS, contained
within AE CVIII in folder (4).
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prior to . . . voir dire”; and (3) failing to request “specific relief for the late
disclosure post trial.” 71 We find all three arguments are without merit.
1. Appellant did not waive right to discovery or remedy for discovery viola-
tion during trial
Waiver is the “intentional relinquishment or abandonment of a known
right.” United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009) (quoting
United States v. Olano, 507 U.S. 725, 733 (1993)). To establish waiver, it is
“more than sufficient to show that defense counsel made a purposeful
decision to agree with the military judge’s ruling.” United States v. Avery, 52
M.J. 496, 498 (C.A.A.F. 2000) (citation omitted). We do not find that the
Defense made a “purposeful decision to agree” with the military judge’s
remedy in any way that constituted waiver of Appellant’s discovery rights. Id.First, Appellant’s defense counsel repeatedly demanded discovery and
enforcement of the military judge’s order. The military judge granted the
Defense’s first motion to compel discovery and ordered the Government to
provide discovery in a diligent manner. Two days later, the Defense re-
litigated the same motion, and the military judge reiterated his earlier ruling
to make it “perfectly clear.” 72 The judge’s remedy ordering the Government to
provide the discovery was in Appellant’s favor, and had the Government
fulfilled its obligations in a timely manner as ordered, the judge’s remedy
would have satisfied Appellant’s rights, enabling him to request to conduct
additional voir dire of Colonel U before findings were announced.
Second, the civilian defense counsel preserved Appellant’s motion to abate
the proceedings. Though he did not explicitly rule on the written request to
abate, the military judge implicitly denied the motion by clearly stating that
he intended to allow the trial to proceed while the Government continued to
provide discovery. He restated this intention when defense counsel re-raised
the issue mid-trial, when he stated he believed the matter was solely an
“appellate issue.” Although the Government faults the Defense for failing to
specifically request a continuance prior to conducting voir dire, the military
judge expressed his intention to begin trial without further delay. We are
confident the military judge would have abated the proceeding had the
Government informed him it would not comply with its discovery obligations
until more than two months after the adjournment of the court-martial.
71 Appellee’s Answer of 8 May 2019 at 66, 69.
72 Record at 689.
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2. Appellant did not waive his right to relief from the discovery violation
based on how he titled his mistrial motion
a. Defense motion for mistrial
Next, the Government argues that because the civilian defense counsel
styled his post-trial motion as an Article 25 and unlawful command influence
motion, he waived any substantive relief from the Government’s multiple
discovery violations. We find this parses the issue too finely and prioritizes
labels over substance.
The Defense mistrial motion alleged that the “panel was improperly se-
lected, and unlawful command influence was committed.” 73 Citing an email
that vaguely referred to Colonel U’s role in forwarding potential members 74 to
the SJA, the Defense argued that “[h]ad the defense known that the senior
member personally nominated two of the members” or that he “approved” the
officers nominated to him and forwarded their names, the Defense would
have challenged him for cause. 75
Once the Defense received the emails in AE CXV, the breadth of the Gov-
ernment’s discovery violations and Colonel U’s role in selecting and forward-
ing member nominees was made clear for the first time, within an hour
before the post-trial hearing commenced. As a result, the civilian defense
counsel argued this point even more forcefully during oral argument than he
could in his written motion. Also, in AE CXV, the Defense first learned that
Colonel U was told he was selected because of his grade.
During the post-trial Article 39(a) hearing, civilian defense counsel ques-
tioned Colonel U about the process he used to nominate members. Colonel U
testified that he did not have a particular agenda in mind when he solicited
members to meet the AMHS tasker. He did not seek members based on
qualifications, merely based on the designated grade and availability for the
court-martial dates.
73 AE CXX.
74 The only reference provided prior to the government disclosing AE CXV read,
“CO tasked the officers” but that did not explicitly reference Colonel U. Email from
Sergeant Major C to Master Sergeant O, of 14 August 2017, Subject: Re: SOLICITA-
TION FOR GENERAL COURT MARTIAL MEMBERS, contained within AE CVIII in
folder (4).
75 AE CX at 9.
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After presentation of evidence and argument, the civilian defense counsel
reiterated that he would have challenged Colonel U for cause, and he
continued to challenge the entire panel—including Colonel U’s selection—as
being improperly constituted based on grade. The civilian defense counsel
specifically requested the military judge make findings of fact and conclu-
sions of law indicating whether he would have granted an implied bias
challenge for cause of Colonel U had the Defense made such a challenge.
In AE CXX, the military judge issued findings of fact and conclusions of
law. In one such finding of fact, he wrote, “No facts were obtained during
Colonel U[ ]’s testimony that would have provided a Defense grounds for
challenge that it did not have at the time of trial.” 76
This finding of fact does not dispose of this issue for two reasons. First,
this finding of fact does not answer the question of whether the military
judge would have granted a challenge for cause had the Defense made one.
Second, though styled as a finding of fact, this is a conclusion of law which we
review de novo and—for reasons further described below—a conclusion with
which we disagree. 77
b. The legal standard for reviewing specificity to preserve objections
In evaluating whether Appellant preserved his right to relief from this
discovery violation, we look to the precedent of our superior court governing
the required specificity for objections. The Court of Appeals for the Armed
Forces (CAAF) has not required perfect specificity in phrasing evidentiary
objections or in articulating objections to the military judge’s instructions.
MILITARY RULE OF EVIDENCE (M.R.E.) 103, MANUAL FOR COURTS-MARTIAL,
UNITED STATES (2016 ed), states the requirements for a party to preserve an
evidentiary objection for appellate review. In pertinent part, it requires that
an accused must “state[ ] the specific ground [for the objection], unless it was
apparent from the context.”
This same M.R.E. 103 standard extends to an appellant’s objection to
instructions. United States v. Payne, 73 M.J. 19, 23, (C.A.A.F. 2014). “[T]he
law ‘does not require the moving party to present every argument in support
of an objection, but does require argument sufficient to make the military
judge aware of the specific ground for objection, “if the specific ground was
76 AE CXX at 6.
77 Even if treated as a finding of fact, for the reasons described below, this finding
of fact is clearly erroneous.
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not apparent from the context.’ ” Id. at 23 (quoting United States v. Datz, 61
M.J. 37, 42 (C.A.A.F. 2005)).
The proper phrasing of objections under M.R.E. 103 is properly reviewed
in a “practical rather than a formulaic manner.” United States v. Reynoso, 66
M.J. 208, 210 (C.A.A.F. 2008). We will evaluate the civilian defense counsel’s
motion using this same M.R.E. 103 standard.
In applying this standard to this case, as the CAAF has written in the
context of evidentiary objections, “[t]his is not a case where counsel has
shouted ‘hearsay,’ and only later has come to a conclusion as to the basis for
that objection.” Datz, 61 M.J. at 42. Here, the Defense did more than shout
“mistrial.” He: (1) specifically articulated that the Government withheld
discovery that was ordered to be produced; (2) would have challenged Colonel
U for cause or peremptorily based on that discovery, which revealed Colonel
U played a significant role in nominating other members; (3) then requested
the military judge effectively “rule” on that theoretical challenge for cause in
his written findings; and (4) requested the exact remedy he now seeks. Even
though his written filing was styled as a frontal challenge to the panel on
Article 25 grounds, the civilian defense counsel adequately articulated at
least one basis for a challenge for cause that was specific to Colonel U.
Having preserved that objection, this cCourt finds additional grounds to
grant the challenge when we review the issue de novo.
c. The Government’s contrary argument
The Government cites several cases that stand for the uncontroversial
proposition that the Defense may not assert one basis for relief at trial then
assert a completely different basis for relief on appeal. For instance, in
United States v. Lloyd, 69 M.J. 95 (C.A.A.F. 2010), the court held that the
military judge did not abuse her discretion by denying the Defense motion to
compel the Government to approve a blood spatter expert. At trial, the
Defense argued the expert was needed for one purpose, but on appeal, Lloyd’s
counsel presented “several new and more detailed arguments” in support of
necessity. Id. at 100. The court wrote, “We find that the military judge did
not abuse her discretion by failing to adopt a theory that was not presented
in the motion at the trial level.” Id. Here, we are not reviewing the military
judge’s specific ruling for an abuse of discretion because the military judge
declined the Defense’s invitation to state whether he would have granted a
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Opinion of the Court
challenge for cause against Colonel U. 78 The holding in Lloyd is not germane
to this issue, in which the Defense asked for the only possible relief available
after findings to remedy a discovery violation that would have given rise to a
challenge for cause before findings. We decline to hold that Appellant waived
his rights to relief on the basis presently asserted. He was simply not
“intentional[ly] relinquish[ing] . . . a known right” while simultaneously
forcefully and repeatedly arguing for the only relief possible. Gladue, 67 M.J.
at 313.
B. Did Discovery Failure Materially Prejudice the Appellant?
1. Standard of review
The parties do not agree on the proper standard of review.
The Appellant cites United States v. Roberts, 59 M.J. 323 (C.A.A.F. 2004),
urging us to conduct a de novo review of the trial counsel’s fulfillment of her
discovery obligations and to apply a harmless beyond a reasonable doubt
standard of review for prejudice.
The Government cites United States v. Shorts, 76 M.J. 523 (Army Ct.
Crim. App. 2017), arguing that we are not permitted to review the errors
committed by trial counsel and that we are restrained to solely review
whether the military judge abused his discretion. According to the Govern-
ment, because the Defense raised its motion to compel to the military judge,
we are constrained to review only the military judge’s actions—not the
failures of trial counsel.
We find the Government’s interpretation would turn the discovery process
on its head and incentivize bad government behavior. Since the Defense had
already raised the motion and convinced the military judge to order discov-
ery, it was even more egregious that the trial counsel failed to provide
responsive, specifically-requested, court-ordered discovery. The Government
not only violated its discovery obligations, but also simultaneously violated a
direct court order. To constrain ourselves to solely review the military judge’s
actions—ordering discovery but refusing to abate the proceedings—would
78 During the post-trial Article 39(a) session, civilian defense counsel argued,
“And, given the liberal grant mandate, we’re asking the Court to consider – and if the
Court would include, in its opinion and findings of fact and conclusions of law in this
case, that—I’m asserting to the Court, I would have challenged him for cause, based
upon both actual and implied bias and whether the Court would have granted that
motion.” Record at 1090.
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Opinion of the Court
result in holding Appellant to a higher burden than he would face had he
never brought the matter to the trial court’s attention. This would reward the
Government’s repeated incorrect representations and culpably dilatory
behavior by effectively shielding them from review. This is a perverse result
the law does not intend. We decline to apply Shorts.
Contrary to the Government’s argument, courts regularly review the con-
duct of trial counsel, who act on behalf of the United States, including
reviewing allegations of discovery violations relating to matters of which trial
counsel was aware or even unaware. See United States v. Hart, 29 M.J. 407(C.M.A. 1990) (reviewing discovery violation but denying relief because the
withheld discovery was not material to the outcome); United States v.
Mahoney, 58 M.J. 346 (C.A.A.F. 2003) (granting relief for Brady v. Maryland,
373 U.S. 83 (1963), violation for failure to disclose exculpatory information of
which trial counsel had no actual knowledge). That the civilian defense
counsel in this case filed a motion with the military judge does not insulate
the Government’s discovery failures from appellate review.
We find further support in United States v. Roberts for the proposition
that we are not constrained to review only the military judge’s actions,
leaving trial counsel’s discovery failure subject to no appellate review. 59
M.J. 323 (C.A.A.F. 2004). In Roberts, the CAAF set out a three-tiered
analysis for determining the remedy for discovery violations. The court
reviewed a military judge’s denial of discovery after the military judge
conducted an in-camera review and found that disclosure was not required.
The court noted that it has delineated two different appellate tests “for
determining materiality with respect to the erroneous nondisclosure of
discoverable evidence.” Roberts, 59 M.J. at 326 (quoting Hart, 29 M.J. at 410).
The second such test is pertinent to cases in which an appellant made a
specific request for discovery or in cases of prosecutorial misconduct, and
“reflects the broad nature of discovery rights granted the military accused
under Article 46.” Id. at 327. Under this second test, when an appellant
“demonstrates that the Government failed to disclose discoverable evidence
in response to a specific request . . . , the appellant will be entitled to relief
unless the Government can show that nondisclosure was harmless beyond a
reasonable doubt.” Id. (quoting Hart, 29 M.J. at 410)). In a footnote, the court
wrote:
[T]he appellate standard of review for assessing the impact of
improper nondisclosure is not deferential because we are not
reviewing any trial level decision. Our appellate assessment of
impact is no different regardless of whether the discovery issue
was ruled on by the military judge under R.C.M. 701(g)(2) or
whether it arose from a Government decision to withhold cer-
tain evidence that was not discovered until after trial.
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Roberts, 59 M.J. at 327 n.3.
Here, we are faced with a “Government decision” that resulted in with-
holding “certain evidence that was not discovered until after trial.” Id.Whether the decision was deliberate, due to ineptitude, or due to the fact that
the Government could not ask the president of the panel to provide respon-
sive discovery while he was serving as the president of the panel, we need not
decide. Therefore, we will apply a non-deferential standard of review to
determine whether the non-disclosure was harmless beyond a reasonable
doubt.
2. Assessing harm of discovery violation relating to members selection
materials
a. The Modesto standard
When the improperly withheld discovery pertains to a member, we must
determine whether the material would have given rise to a ground for
challenge of the member for cause or whether the improper nondisclosure
precluded “effective” voir dire. United States v. Modesto, 43 M.J. 315, 316
(C.A.A.F. 1995).
“Voir dire is a critical tool for ensuring that the accused is tried by an
impartial trier of fact—the ‘touchstone of a fair trial.’ ” United States v.
Commisso, 76 M.J. 315, 321 (C.A.A.F. 2017) (quoting McDonough Power
Equip., Inc. v. Greenwood, 464 U.S. 548, 554 (1984)).
We find little case law describing what constitutes “effective” voir dire as
discussed in Modesto. In United States v. Glenn, 25 M.J. 278 (C.M.A. 1987),
the court reversed the sentence the members adjudged after the appellant’s
guilty plea because the SJA failed to disclose that one of the members was his
sister-in-law. The failure to disclose this information “precluded effective voir
dire and made it impossible for either the military judge or counsel to
accurately test [the member] for bias or determine whether a challenge for
cause was necessary.” Id. at 280. This was despite the parties’ opportunity for
“extensive” voir dire. Id. at 279.
Voir dire is often informed by the information available about the mem-
ber—typically through his or her member’s questionnaire and the answers
given during group voir dire. Here, the Government argues the Defense could
have asked generally whether any member nominated any other member of
this panel.
The Defense, without discovery suggesting it was prudent to ask these
questions, did not. We do not expect—nor would military trial judges
countenance—defense counsel to maintain a litany of questions that presup-
pose that irregularities took place in the members selection process. Just like
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the counsel in Glenn were not faulted for failing to ask whether any member
was related to the SJA, we do not fault the Defense team for conducting voir
dire as they did.
Appellant’s counsel was given a post-trial opportunity to question Colonel
U in support of his mistrial motion. However, by this point, the Defense was
in a very different position than it would have been prior to challenges and
excusals, as we further describe below. “Trial judges are not mere robots[.]”
United States v. Warren, 13 M.J. 278, 287 (C.M.A. 1982) (Fletcher, J.,
concurring). Though they are presumed to appreciate the effect their deci-
sions have on matters before them, the wide gulf between deciding a chal-
lenge for cause for implied bias during voir dire and declaring a mistrial more
than two months after adjournment is clear and obvious.
However, we can only reverse Appellant’s conviction if the undisclosed
information would have given rise to a challenge for cause—not a peremptory
challenge. Modesto, 43 M.J. at 320 (citing Williams v. United States 418 F.2d
372, 377 (10th Cir. 1969)).
b. Standard for granting an implied bias challenge for cause
A member should be excused “whenever it appears that the member . . .
[s]hould not sit as a member in the interest of having the court-martial free
from substantial doubt as to legality, fairness, and impartiality.” R.C.M.
912(f)(1)(N). A challenge for cause may be based on actual or implied bias.
Actual bias is not at issue here.
“[I]mplied bias is reviewed under an objective standard, viewed through
the eyes of the public.” United States v. Wiesen, 56 M.J. 172, 174 (C.A.A.F.
2001) (citation omitted). When analyzing implied bias, the “focus is on the
perception or appearance of fairness in the military justice system.” Id.(citation omitted). We must assess whether “we are placing an intolerable
strain on public perception of the military justice system.” Id. at 175.
We must determine whether there is “ ‘too high a risk that the public will
perceive’ that the [appellant] received less than a court composed of fair,
impartial, equal members.” United States v. Moreno, 63 M.J. 129, 134
(C.A.A.F. 2006) (quoting Wiesen, 56 M.J. at 176).
The implied bias challenge “stems from the ‘historic concerns about the
real and perceived potential for command influence’ in courts-martial.”
United States v. Peters, 74 M.J. 31, 34 (C.A.A.F. 2015) (citing United States v.
Clay, 64 M.J. 274, 277 (C.A.A.F. 2007)). The test does not focus on the
“subjective qualities of the panel member, but on the effect that panel
member’s presence will have on the public’s perception of whether the
appellant’s trial was fair.” Id. (citing United States v. Rome, 47 M.J. 467, 469
(C.A.A.F. 1998)).
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Opinion of the Court
Military judges must “grant challenges for cause liberally,” including
implied bias challenges. Modesto, 43 M.J. at 318 (citation omitted). “The
liberal grant rule protects the ‘perception or appearance of fairness of the
military justice system.’ ” United States v. James, 61 M.J. 132, 139 (C.A.A.F.
2005) (citation omitted). The liberal grant mandate “also serves as a preven-
tative measure because ‘it is at the preliminary stage of the proceedings that
questions involving member selection are relatively easy to rapidly address
and remedy.’ ” Peters, 74 M.J. at 34 (emphasis added) (quoting Clay, 64 M.J.
at 277).
Because challenges for implied bias are based on an objective standard
and do not rely on credibility determinations, we “give less deference to the
military judge” when reviewing rulings on challenges based on implied bias.
United States v. Minyard, 46 M.J. 229, 231 (C.A.A.F. 1997). The standard is
“less deferential than abuse of discretion, but more deferential than de novo.”
United States v. Woods, 74 M.J. 238, 243 (C.A.A.F. 2015) (citing United States
v. Downing, 56 M.J. 419, 422 (C.A.A.F. 2002)).
3. Would Colonel U be subject to challenge?
In determining whether an implied bias challenge would have been
granted, we are guided by cases in which appellate courts have reviewed
denials of members’ challenges. Although they help illustrate the standard
for granting an implied bias challenge, we find those cases to be distinguish-
able.
In assessing prejudice to Appellant, we are reviewing a case in a different
procedural posture from the vast majority of cases pertaining to members’
challenges. Most implied bias challenge cases arise after: (1) the defense
conducted effective voir dire; (2) the parties argued the defense challenge for
cause; and (3) the military judge considered the liberal grant mandate,
articulated the reasoning for denial, and denied the challenge. In that
procedural posture, a court has a trial level ruling to review, with full
knowledge that the trial judge considered the liberal grant mandate. An
appellate court then conducts a review that is slightly more deferential than
de novo.
Here, we must consider what should have happened had the Government
provided discovery and voir dire proceeded as expected. We have some insight
into Colonel U’s likely responses to questions. But we have no trial level
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Opinion of the Court
ruling to review. 79 In some ways, this is similar to reviewing a suppression
motion that never happened due to ineffective assistance of counsel. It would
deprive an accused of his Sixth Amendment right to effective counsel if an
appellant were required to show the suppression motion would have been
meritorious rather than just a “reasonable probability” it would have been
meritorious. United States v. Jameson, 65 M.J. 160, 163-64 (C.A.A.F. 2007)
(citation omitted). In the same vein, it would deprive an accused of his right
to effective voir dire if appellate review of a challenge for cause that never
happened due to the Government neglecting its court-ordered discovery
obligations required anything other than a de novo review.
Due to the circumstances under which this issue arose, we have no option
but to conduct a de novo review of whether an implied bias challenge would
have been granted. We must apply the liberal grant mandate as the military
judge would have done had the challenge been made during trial. To do
otherwise would be to incentivize the government’s collective behavior in
withholding discovery. Any SJA or trial counsel could merely withhold
discovery until after findings—when the court has no recourse other than to
grant a mistrial—when the government knows the standard for granting a
mistrial is substantially higher than the standard for granting a challenge for
cause, even considering the liberal grant mandate.
We believe such a challenge would have been granted. Considering the
liberal grant mandate, we do not believe a member of the public would
perceive that Appellant received a fair trial with Colonel U on his panel. We
reach this conclusion for two reasons: (1) Colonel U was informed he was
chosen for the panel by the Chief of Staff because of his grade; and (2) Colonel
U exercised some discretion in deciding which potential members would be
forwarded for consideration, and he played a more than ministerial role in
soliciting members.
Assessing the first reason, a reasonable member of the public would be
concerned that Colonel U was hand-selected because of his grade. This
concern is magnified by the fact that the CA improperly selected the panel in
GCMCO 1a-17 based on grade, purposefully excluding junior members.
Pursuant to Bartee, we are required to view GCMCO 1b-17 as cured of the
defects that afflicted GCMCO 1a-17. But we are faced with the reality that
79 As noted above, in AE CXX, the military judge wrote, “No facts were obtained
during Colonel U[ ]’s testimony that would have provided a Defense grounds for
challenge that it did not have at time of trial.” However, he never addressed the
merits of such a challenge. AE CXX at 6.
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Opinion of the Court
the now-validated panel remained exactly the same as the panel that was
determined to be invalid less than 24 hours earlier. Although the military
judge was constrained by binding precedent to accept the CA’s Bartee letter,
the letter’s curative powers did nothing to eradicate our concerns that are
specific to Colonel U as a member—including his knowledge of why he was
selected and the fact that he assisted in assembling the members panel.
Whether Colonel U was selected as a member because of his grade is a
different issue from the fact that he was told that was the reason he was
selected. The Bartee letter could cure the first defect but not the latter.
Our concerns are exacerbated by the fact that Colonel U was the panel
president. In United States v. Woods, in weighing whether a military judge
should have granted a challenge for cause, the CAAF took note of the fact
that the challenged member was the senior member. 74 M.J. 238, 245
(C.A.A.F. 2015).
In that role, Colonel U would determine in which order the panel would
vote on specifications, subject to being overruled by a sufficient number of his
fellow members, check the junior member’s vote count, fill out worksheets,
and speak for the panel. 80 We are aware that the members are presumed
follow the military judge’s instructions not to consider rank or grade during
deliberations. However, this instruction cannot cure the fact that Colonel U
was told he was selected for the panel because of his grade. Colonel U was
effectively told, “You’re my colonel in the room.” This message has far-
reaching implications, given Colonel U’s seniority, the manner in which he
himself was selected, and his subsequent assistance in selecting other
members.
A member could receive this message in a way that could be interpreted
as either pro-Government or pro-Defense, depending on the facts of the case.
In this case, in the context of the commanding general’s stated intention to
exclude junior ranking members, this message can reasonably be perceived
as conveying that the commanding general intended Colonel U to take charge
of the junior members. No part of Colonel U’s voir dire specifically addressed
this message because the Government denied the Defense the ability to
conduct effective voir dire by withholding discovery.
Not only was Colonel U told he was selected because of his grade, but he
was also aware that it was so important to the Chief of Staff that a colonel
serve on the panel that he was told to prioritize the court-martial over the
80 See Record at 930-32.
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Opinion of the Court
change of command of one of his subordinate company commanders. As such,
he was not only told that he was selected as a member because of his grade,
he was also implicitly informed that it was of the utmost importance that a
colonel serve.
Our first concern is only amplified by the second: the fact that Colonel U
was personally involved in forwarding potential members to the SJA’s office.
The SJA’s office outsourced much of its role in assembling a members panel
to the G-1, and ultimately to the subordinate commanders. While this is not
per se improper, in this case the process resulted in the panel president
having: (1) twice sought advice from the SJA about who could or should be
nominated to the panel; (2) exercised discretion over which units would
provide members of the desired grades; and (3) decided which major to
forward for consideration when two were nominated.
Assessing this basis, we note that the military judge granted an implied
bias challenge for cause and excused another member—Major D—in part
because Major D “may have nominated another member.” 81 That other
member was Gunnery Sergeant S, who wrote on his member’s questionnaire
that he was “just filling out this paper per my [commanding officer].” 82 When
civilian defense counsel asked about this response during voir dire, Gunnery
Sergeant S stated that either his commanding officer—Major D—or the
battalion adjutant sent the member’s questionnaire to him and directed him
to fill it out. Then he stated he believed, but was not certain, that he sent the
completed questionnaire to Major D to be forwarded up the chain of com-
mand. The Defense challenged Major D on these and other grounds, and the
military judge granted the challenge, in part, because it was possible that
Major D may have nominated Gunnery Sergeant S and received and for-
warded his member’s questionnaire. Given the military judge’s reaction to
this challenge—based on a mere possibility that Major D may have nominat-
ed Gunnery Sergeant S—we are confident that the military judge would have
granted an implied bias challenge against Colonel U.
When assessing how the military judge would have handled the challenge
to Colonel U, had one been made, we also look to superior court precedent
reviewing denials of defense challenges for cause. We find United States v.
Peters, 74 M.J. 31 (C.A.A.F. 2014), to be most analogous to this case. In
Peters, a member was a commander who received military justice advice from
81 Id. at 355 (emphasis added).
82AE XXVII at 38. This was in response to the question, “Do you have any
knowledge of any of the facts of the pending court-martial . . . ?” Id.32
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Opinion of the Court
the trial counsel. Id. at 33. He also consulted the trial counsel in advance of
trial to ask whether it was common practice for commanders to sit as
members on brigade cases. Id. Although the member was not actually biased,
the CAAF held that their solely professional “relationship went beyond what
would be perceived as fair to an appellant in the context of a typical court-
martial.” Id. at 36.
We also find United States v. Wiesen, 56 M.J. 172 (C.A.A.F. 2001), to be
instructive. In Wiesen, the court held that the military judge erred in denying
the implied bias challenge for cause of a senior member who was in the rating
chain of six other members. Those members were subjected to voir dire on the
issue and “all indicated that they could express their opinions’ [sic] freely and
openly and that they would not be inhibited or unduly influenced by any
superior.” Id. (quoting the record). Yet, even extensive voir dire was insuffi-
cient to cure the public perception that Wiesen received something less than
a fair trial because the senior member and the six junior members could form
a voting bloc sufficient to convict. As a result, the court reversed the convic-
tion.
In this case, the defense counsel were able to question Colonel U and ask
him whether he believed the commanding general desired a specific outcome.
He answered no. However, we do not find Colonel U’s answer to this general
question sufficiently cures the negative public perception that would arise
from the fact that Colonel U knew he was picked for the panel because of his
senior grade and further knew it was more important for any colonel to serve
on the panel than for him to attend a subordinate company commander’s
change of command. Like the panel members in Wiesen, a negative public
perception can remain even though all panel members in Wiesen said they
could exercise independent discretion even though six members reported to
the senior member.
Contrary to the Government’s argument, this is not the type of conflict
that would be readily apparent from reading Colonel U’s court member
questionnaire, such that the defense counsel was required to “make reasona-
ble inquiries into the background of the member” to avoid waiving the issue.
See United States v. Dunbar, 48 M.J. 288, 290 (C.A.A.F. 1998).
Even though the military judge in this case was required to hold that the
Bartee letter cured these defects in relation to the validity of the panel
composition as a whole, the Bartee letter did nothing to cure the public’s
perception of the propriety of Colonel U’s role on the panel in light of his
actions and knowledge.
Reviewing “the totality of the circumstances,” and assuming, as we must,
“the public to be familiar with the unique structure of the military justice
system,” we conclude that “there is ‘too high a risk’ that the public would
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Opinion of the Court
question the fairness of Appellant’s trial.” Woods, 74 M.J. at 245 (quoting
Wiesen, 56 M.J. at 176).
In light of the liberal grant mandate, “if after weighing the arguments for
the implied bias challenge the military judge finds it a close question, the
challenge should be granted.” Peters, 74 M.J. at 34. In this case, a challenge
to Colonel U is unquestionably a close question. A court faced with such a
challenge from the defense must “err on the side of granting a challenge.” Id.
Combining Colonel U’s role with the message conveyed to Colonel U about
why he was selected, we find that, conducting a de novo review and applying
the liberal grant mandate, a challenge for cause based on implied bias would
have been granted. Accordingly, we find that Appellant was prejudiced by the
Government’s discovery violation.
C. What Relief is Warranted
We recall the CAAF’s description of the liberal grant mandate as a “pre-
ventative measure because ‘it is at the preliminary stage of the proceedings
that questions involving member selection are relatively easy to rapidly
address and remedy.’ ” Peters, 74 M.J. at 34. (quoting Clay, 64 M.J. at 277).
But this preventative measure can be employed only if the Defense has not
been denied their ability to conduct effective voir dire through dilatory acts of
the Government. At the present juncture in this case, after guilty findings
were returned relating to multiple victims, and a 39-year sentence issued, we
can no longer “rapidly address and remedy” a problem created long ago.
The seeds of this problem were sown in June 2017, when Colonel U was
told he was selected because of his grade; made worse in August 2017 when
Colonel U assisted in forming the panel; and came fully to fruition in
September 2017 when Colonel U was impaneled as president and the
Government over the course of a two-week period—and for months to
follow—failed to provide requested and court-ordered discovery that shed
crucial light on Colonel U’s selection and his role in selecting other panel
members. The military judge did not help matters when he denied the
Defense motion to abate the proceedings and failed to exercise close supervi-
sion over the trial counsel’s compliance with his order, given the fact that the
trial counsel had demonstrated, time and again, that they were ill-informed,
purportedly confused by his clear order, and not motivated to comply. Given
this course of events, the only available remedy is to reverse the findings and
the sentence. These repeated missteps leave us no intermediate recourse.
III. CONCLUSION
The findings and sentence as approved by the convening authority are
REVERSED. A rehearing is authorized.
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Opinion of the Court
Judges LAWRENCE and J. STEPHENS concur.
J. STEPHENS, Judge (concurring, dubitante):
I concur with the opinion of the Court in full.
In March 2017, Chief Judge Erdmann made a prediction about member
selection. His dissent in United States v. Bartee warned:
The future implications of the majority’s holding are trou-
bling. It is not difficult to envision that when a panel is held to
be solicited in violation of Article 25, a convening authority
need only be provided with an alpha list of his command, state
that he knew he could select anyone in his command, and then
reinstate the improperly convened panel with impunity. This
would allow convening authorities to end-run decades of this
court’s precedent on the prohibition of excluding potential pan-
el members on the basis of rank, and select only the most sen-
ior of panels, under the protection of our newest ruling. This
cavalier attitude toward the requirements of Article 25, on the
part of the command and apparently disseminated to trial
counsel should not be tolerated. 1
In less than six months, his prediction came true.
The Convening Authority in this case clearly set out to stack his panel
with senior officers, even ensuring that “a colonel” 2 was the head of what
looks less like a members panel than a special purpose MAGTF. 3 If com-
manders and their staff judge advocates are going to ignore Article 25 and
relevant case law in selecting members, then it is up to the trial and appel-
late judiciary to insist the law be followed. However, due to Bartee, we must
be complicit in Article 25’s defenestration.
For a convening authority to select senior members solely based on grade,
he must simply utter the “talismanic incantation” 4 of “Bartee” to remove the
1United States v. Bartee, 76 M.J. 141, 150 (C.A.A.F. 2017) (Erdmann, C.J., dis-
senting) (citation omitted).
2 Appellate Exhibit CXV at 44. The Chief of Staff’s email declares, [Colonel U] it
is . . . I do not have any other Colonels in the Div[ision] at that time!”
3 Marine Air Ground Task Force.
4See, e.g., United States v. Gamble, 27 M.J. 298, 304 (C.M.A. 1988) (finding broad
talismanic incantations of words such as motive, intent et al. not sufficient to admit
(footnote continued next page)
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United States v. Kunishige, No. 201800110
J. STEPHENS (concurring)
taint. Such an incantation was on display here. After the military judge
excused the panel, the very next morning 5 the Government resubmitted the
exact same members, with the explanation that it “would be relying on . . .
Bartee.” 6 The regional trial counsel sent an email from his BlackBerry to the
civilian defense counsel that simply read, “GOV discovery RE mod CO. See
US v Bartee CAAF 2016 case.” 7 This is a digital microphone drop.
While we are required to believe the Bartee maneuver removes the taint
from the panel selection, it is doubtful the general public would believe such a
thing. It is doubly doubtful an accused would believe it. Here, the convening
authority improperly selected 15 members out of his nearly 5,000 eligible
Marines and Sailors. We are asked to believe he then sat down, after being
frustrated by the military judge, reviewed his alpha roster of those 5,000
potential members, and—in good faith—arrived at the exact same 15
members. I believe requiring evidence of the convening authority’s bad faith
as a prerequisite to dismissing an improperly selected panel is simply too
much temptation for a convening authority. It would be better to adopt a
bright-line rule that once a panel is excluded, all the nominated members of
that panel are permanently excluded with respect to that accused.
Burdensome as it may be to select new members after a military judge
disqualifies them due to panel-stacking, I think it worth keeping in mind that
our entire system of justice is intentionally burdensome to the government to
preserve the rights of the accused. It would also take less time to properly
select a panel on the Article 25 criteria in the first place. Moreover, conscien-
tious convening authorities may still arrive at “senior” panels using the
Article 25 criteria, rather than using grade as a proxy.
In this case, the “cavalier” attitude predicted by Chief Judge Erdmann
was not confined to Article 25. It permeated the discovery of materials
related to the member selection. It is clear the Government was uninterested
in making timely production of the member selection documents sought by
evidence under Military Rule of Evidence 404(b)); United States v. Peters, 74 M.J. 31,
34 (C.A.A.F. 2015) (“Incantation of the legal test without analysis is rarely sufficient
in a close case.”); United States v. Sterling, 75 M.J. 407, 421 (C.A.A.F. 2016) (Ohlson,
J., dissenting) (finding “talismanic invocation of ‘good order and discipline’ ” not
enough).
5 Record at 206.
6 Id.7 Appellate Exhibit XXIX.
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United States v. Kunishige, No. 201800110
J. STEPHENS (concurring)
the Defense and ordered by the military judge. It was also clear the military
judge, and even the civilian defense counsel, were less than enthusiastic
about the production. And why should any of the parties be diligent in their
respective duties? Bartee makes it all a labor of Sisyphus.
In my own view, this panel was improperly selected from the start be-
cause the members were selected solely based on grade. This was done
contrary to Article 25 and contrary to our superior court’s holding in United
States v. Kirkland. 8 Though we are required 9 to allow Bartee to carry the day
for the Government—at least for the issue of the panel selection process—I
would humbly submit that our superior court should revisit Bartee before
panel stacking becomes the norm against our Marines and Sailors.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
8 53 M.J. 22 (C.A.A.F. 2000).
9 United States v. Davis, 76 M.J. 224, 228 n.2 (C.A.A.F. 2017).
37