UNITED STATES, Appellee
v.
William C. BRAGG, Staff Sergeant
U.S. Marine Corps, Appellant
No. 07-0382
Crim. App. No. 200600228
United States Court of Appeals for the Armed Forces
Argued February 26, 2008
Decided May 27, 2008
BAKER, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN, STUCKY, and RYAN, JJ., joined.
Counsel
For Appellant: Major Brian L. Jackson, USMC (argued);
Lieutenant Commander Ricardo A. Berry, JAGC, USNR.
For Appellee: Colonel Louis J. Puleo, USMC (argued); Captain
Geoffrey S. Shows, USMC, and Commander Paul C. LeBlanc, JAGC,
USN.
Military Judge: R. S. Chester
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Bragg, No. 07-0382/MC
Judge BAKER delivered the opinion of the Court.
Appellant was tried by a general court-martial convened
with members at Marine Corps Recruit Depot, San Diego,
California. Contrary to his pleas, he was found guilty of
violating a lawful general order, rape, indecent assault,
indecent language, and adultery, all in violation of Articles
92, 120, and 134, Uniform Code of Military Justice (UCMJ), 10
U.S.C. §§ 892, 920, 934 (2000). The court sentenced Appellant
to a dishonorable discharge, confinement for five years,
forfeiture of all pay and allowances, and reduction to the
lowest enlisted grade. The convening authority approved the
sentence as adjudged, but the United States Navy-Marine Corps
Court of Criminal Appeals reduced Appellant’s period of
confinement to four years, eleven months. United States v.
Bragg, No. NMCCA 200600228, 2007 CCA LEXIS 44, at *19, 2007 WL
1704149, at *7 (N-M. Ct. Crim. App. Feb. 21, 2007)
(unpublished). This Court granted review of the following
question:
WHETHER THE LOWER COURT ERRED IN UPHOLDING THE MILITARY
JUDGE’S DENIAL OF THE CHALLENGE FOR CAUSE OF LIEUTENANT
COLONEL [W].
Based on the reasoning below, we hold that the lower court
erred.
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BACKGROUND
Appellant was convicted of committing rape, and other
inappropriate acts against two female high school students while
serving as a recruiter for the United States Marine Corps.
During voir dire of the court-martial members, one member,
Lieutenant Colonel (LtCol) W, volunteered that he had learned
information about the case outside of the trial proceedings.
LtCol W stated that in his former role as the deputy assistant
chief of staff for recruiting, he “usually” read the “relief for
cause” (RFC) packages that would have been submitted for any
recruiters accused of misconduct under his jurisdiction. While
he lacked specific memory of most of the particulars of the
case, LtCol W was able to recall several facts, including the
nature of the offense, the general identity of the victim, and
investigatory measures undertaken by the police. LtCol W stated
that he was unsure whether he had gained his knowledge of the
case through reading the RFC packet or through reading the
newspaper. However, after recalling what he knew of the case,
he later stated, “[s]o, based off that, I believe I read the
investigation as opposed to reading the newspaper accounts and
all that kind of stuff.”
When asked whether he would have made a recommendation on
the case, LtCol W equivocated, then stated, “I probably would
have recommended relief if it had come up in front of me.”
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LtCol W also stated that he would have read any RFC packets
submitted before July 17, 2003. The offenses at issue in this
case were committed between April 3, 2003, and April 10, 2003,
and charges were preferred on May 28, 2003. In addition to
volunteering the foregoing information, LtCol W also stated that
he could be impartial in sitting as a member of the court-
martial.
The military judge denied defense counsel’s challenge of
LtCol W for cause, finding that LtCol W’s “answers and candor .
. . and body language” suggested that he would be impartial, and
decide the case solely on the evidence presented in court. As a
result, defense counsel chose to exercise their peremptory
challenge against LtCol W, rather than another member,
Colonel C.
DISCUSSION
An accused “has a constitutional right, as well as a
regulatory right, to a fair and impartial panel.” United States
v. Wiesen, 56 M.J. 172, 174 (C.A.A.F. 2001). Rule for Courts-
Martial (R.C.M.) 912(f)(1)(N) requires that a member be excused
for cause whenever it appears that the member “[s]hould not sit
as a member in the interest of having the court-martial free
from substantial doubt as to legality, fairness, and
impartiality.” See United States v. Miles, 58 M.J. 192, 194
(C.A.A.F. 2003). While this rule applies to both actual and
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United States v. Bragg, No. 07-0382/MC
implied bias, “[t]he focus of this rule is on the perception or
appearance of fairness of the military justice system.” United
States v. Dale, 42 M.J. 384, 386 (C.A.A.F. 1995). This Court
gives the military judge “great deference when deciding whether
actual bias exists because it is a question of fact, and the
judge has observed the demeanor of the challenged member.”
United States v. Napolitano, 53 M.J. 162, 166 (C.A.A.F. 2000).
A military judge is afforded less deference when we review a
challenge for cause based on implied bias because the issue is
“objectively viewed through the eyes of the public,” id.
(citation and quotation marks omitted), “focusing on the
appearance of fairness,” United States v. Rome, 47 M.J. 467, 469
(C.A.A.F. 1998) (citation omitted). Thus, “[i]ssues of implied
bias are reviewed under a standard less deferential than abuse
of discretion but more deferential than de novo.” Miles, 58
M.J. at 195 (citation and quotation marks omitted). However,
“[a] military judge who addresses implied bias by applying the
liberal grant mandate on the record will receive more deference
on review than one that does not.” United States v. Clay, 64
M.J. 274, 277 (C.A.A.F. 2007). “We do not expect record
dissertations but, rather, a clear signal that the military
judge applied the right law. While not required, where the
military judge places on the record his analysis and application
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United States v. Bragg, No. 07-0382/MC
of the law to the facts, deference is surely warranted.” Id.
(citation and quotation marks omitted).
In making judgments regarding implied bias, this Court
looks at the totality of the factual circumstances. United
States v. Strand, 59 M.J. 455, 459 (C.A.A.F. 2004). “Implied
bias exists when, regardless of an individual member’s
disclaimer of bias, most people in the same position would be
prejudiced [i.e., biased].” Napolitano, 53 M.J. at 167
(citation and quotation marks omitted). In this case the member
indicated that he was aware of information about the case not
available to the other members and from a source not readily
available to others. Moreover, LtCol W, a senior member on the
panel, suggested that prior to trial, it was likely that he
would have been in a position to recommend, and may have
recommended adverse administrative action against Appellant, for
conduct forming the basis of the charges before the court-
martial.
The purpose of voir dire and challenges is, in part, to
ferret out facts, to make conclusions about the members’
sincerity, and to adjudicate the members’ ability to sit as part
of a fair and impartial panel. However, the text of R.C.M. 912
is not framed in the absolutes of actual bias, but rather
addresses the appearance of fairness as well, dictating the
avoidance of situations where there will be substantial doubt as
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United States v. Bragg, No. 07-0382/MC
to fairness or impartiality. Thus, implied bias picks up where
actual bias drops off because the facts are unknown,
unreachable, or principles of fairness nonetheless warrant
excusal.
In the present case, for example, the military judge was
not ultimately compelled to explore the capacity of LtCol W to
recommend administrative relief in one context, yet keep an open
mind about Appellant’s conduct when applying a criminal standard
of review as a court-martial member. Nor, in the context of
implied bias, must a military judge doubt the sincerity or
veracity of a member’s statements -– and we do not doubt LtCol
W’s integrity -- that he could evaluate the evidence with an
open mind, in order to nonetheless conclude that the member
should not sit. In this sense, it is not always possible to
resolve facts or determine credibility and still remove the
perception of doubt as to whether a member should sit. Implied
bias and the liberal grant mandate allow a military judge to
uphold the letter and spirit of R.C.M. 912 without at the same
time questioning a member’s statement that he can sit with an
open mind. See United States v. Townsend, 65 M.J. 460, 463
(C.A.A.F. 2008) (implied bias determinations made “despite a
disclaimer”).
The liberal grant mandate and principles of implied bias
also remove the necessity of reaching conclusions of fact that
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United States v. Bragg, No. 07-0382/MC
are beyond the capacity of the member to recall. Thus, the
military judge could not determine whether or not LtCol W
actually recommended relief -- because LtCol W could not
remember if he did. But if LtCol W believed he did, and the
facts indicated he might well have, a substantial doubt is
nonetheless raised as to fairness and impartiality. That is
because no matter how sincere the particular member, we have
substantial doubt that it is fair for a member to sit on a panel
where that member has likely already reached a judgment as to
whether the conduct in question has occurred. Such a conclusion
is compounded when it is likely that the same member has reached
such a conclusion based on facts contained outside the record.
The liberal grant mandate exists for cases like this.
Here, the record reflects that LtCol W might well have
recommended relief for cause; and even if he did not, he stated
that he would have done so. Viewed objectively, we conclude
that a member of the public would have substantial doubt that it
was fair for this member to sit on a panel where that member had
likely already reached a judgment as to whether the charged
misconduct occurred. This perception of unfairness is
compounded when that member has likely reached such a conclusion
based on information gained prior to trial.
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DECISION
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is reversed and the findings and sentence
are set aside. The record of trial is returned to the Judge
Advocate General of the Navy. A rehearing may be ordered.
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