UNITED STATES, Appellee
v.
Kirk V. BRIGGS, Technical Sergeant
U.S. Air Force, Appellant
No. 06-0178
Crim. App. No. 35123
United States Court of Appeals for the Armed Forces
Argued October 24, 2006
Decided January 25, 2007
BAKER, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN, J., joined.
STUCKY and RYAN, JJ., did not participate.
Counsel
For Appellant: Captain Timothy M. Cox (argued); Lieutenant
Colonel Mark R. Strickland and Captain Vicki A. Belleau (on
brief).
For Appellee: Captain Daniel J. Breen (argued); Colonel Gerald
R. Bruce and Lieutenant Colonel Robert V. Combs (on brief).
Military Judge: Bryan T. Wheeler
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION
United States v. Briggs, No. 06-0178/AF
Judge BAKER delivered the opinion of the Court.
Appellant was tried by general court-martial consisting of
officer members. Contrary to his pleas, Appellant was convicted
of four specifications of selling military property and one
specification of larceny on divers occasions, in violation of
Articles 108 and 121, Uniform Code of Military Justice (UCMJ),
10 U.S.C. §§ 908, 921 (2000), respectively. The adjudged
sentence included a dishonorable discharge, forfeiture of all
pay and allowances, confinement for five years, and reduction to
E-1. The convening authority approved the adjudged sentence,
and waived forfeitures pursuant to Article 58b(b), UCMJ, 10
U.S.C. § 858b(b) (2000). The court below affirmed.
On Appellant’s petition, we granted review on the following
issue:
WHETHER THE MILITARY JUDGE ERRED IN DENYING APPELLANT’S
CHALLENGE FOR CAUSE AGAINST CAPTAIN H.
BACKGROUND
Appellant was an electro-environmental technician whose
duties involved maintaining C-5 aircraft at Travis Air Force
Base. He was accused of stealing and later re-selling survival
vests from the aircraft he was responsible for maintaining.
Captain (Capt) H, the wife of Appellant’s flight commander,
was detailed to serve as a court member at Appellant’s court-
martial. Capt H raised her hand when asked whether she had
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prior knowledge of the case. On voir dire, Capt H stated that
she had learned from her husband that “vests went missing and
that the person or a person -- I didn’t know who -- was put on
desk duty.” Upon further questioning, Capt H stated that she
did not know any additional details about the case, and that her
husband was deployed to Kuwait at the time of the trial.
Appellant challenged Capt H for cause, arguing that there
would be an appearance of unfairness if the wife of Appellant’s
commanding officer were allowed to sit on Appellant’s court-
martial. The military judge denied Appellant’s challenge,
noting that Capt H “wasn’t aware precisely of which flight the
person was in” and since Capt H’s husband was currently deployed
to Kuwait there would be little chance for them to discuss the
case. The military judge further concluded that Capt H
“appeared to be quite sincere and listened quite attentively as
I instructed her on what she could consider” and that
“regardless of whether she had a discussion with her husband . .
. there is going to be evidence presented that vests were
missing from one of the flights on this base.” Appellant
preserved this issue on appeal by using his sole peremptory
challenge against another member of the panel. Rule for Courts-
Martial (R.C.M.) 912(f)(4).
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DISCUSSION
R.C.M. 912(f)(1)(N) requires removal for cause when a court
member should not sit “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) encompasses both actual and
implied bias. United States v. Strand, 59 M.J. 455, 458
(C.A.A.F. 2004). The concepts of actual and implied bias are
“separate legal tests, not separate grounds for challenge.”
United States v. Armstrong, 54 M.J. 51, 53 (C.A.A.F. 2000).
Because a challenge based on actual bias is “essentially one of
credibility,” and because “the military judge has an opportunity
to observe the demeanor of court members and assess their
credibility on voir dire,” a military judge’s ruling on actual
bias is afforded deference. United States v. Daulton, 45 M.J.
212, 217 (C.A.A.F. 1996) (citations and quotation marks
omitted). However, implied bias is “viewed through the eyes of
the public, focusing on the appearance of fairness.” United
States v. Rome, 47 M.J. 467, 469 (C.A.A.F. 1998). Implied bias
exists when, “regardless of an individual member’s disclaimer of
bias, most people in the same position would be prejudiced [that
is, biased].” United States v. Napolitano, 53 M.J. 162, 167
(C.A.A.F. 2000). Since implied bias is an objective standard, a
military judge’s ruling on implied bias, while not reviewed de
novo, is afforded less deference than a ruling on actual bias.
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Strand, 59 M.J. at 458. However, deference is warranted only
when the military judge indicates on the record an accurate
understanding of the law and its application to the relevant
facts. United States v. Downing, 56 M.J. 419, 422 (C.A.A.F.
2002).
In this case, the military judge addressed Appellant’s
challenge to Capt H without expressly addressing implied bias or
the liberal grant mandate on the record. Rather, the military
judge discussed various factors relating to Capt H’s demeanor,
her professed lack of knowledge, and her husband’s absence
during Appellant’s court-martial. While the military judge’s
analysis made it clear that he found no actual bias, we do not
know what, if any, reasoning prompted him to deny a challenge
predicated on implied bias. In United States v. Clay, 64 M.J.
__ (6-8) (C.A.A.F. 2007), we stated:
[I]n light of the role of the convening authority in
selecting courts-martial members and the limit of one
peremptory challenge per side, military judges are enjoined
to be liberal in granting defense challenges for cause.
Challenges based on implied bias and the liberal grant
mandate address historic concerns about the real and
perceived potential for command influence on members’
deliberations.
. . . .
In short, the liberal grant mandate is part of the
fabric of military law. The mandate recognizes that the
trial judiciary has the primary responsibility of
preventing both the reality and the appearance of bias
involving potential court members.
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Applying the standard for implied bias, we conclude that
the military judge erred when he denied the challenge for cause
against Capt H. It is true that Capt H’s responses did not
reflect actual bias against Appellant. Among other things, Capt
H disclaimed prior knowledge of the case beyond the fact that
some “vests went missing.”
However, there are a number of factors that necessitated
dismissing Capt H from the panel.1 First, her husband was a
member of the squadron whose members’ safety might have been
implicated by the theft. The military judge was aware of the
safety concerns. Immediately before the questioning of Capt H,
two other members had expressed the view that the thefts could
have affected mission safety. Second, Capt H was married to
Appellant’s flight commander, whose performance evaluation could
be affected by criminal conduct regarding critical squadron
equipment that was supposed to be safeguarded in a secure area.
Third, in military practice, the immediate commander is often
responsible for the initial inquiry into potential misconduct
occurring within his command and the initial decision as to
disposition. See R.C.M. 301; R.C.M. 303; R.C.M. 306. Moreover,
1
“Although military or national security exigencies may create
personnel circumstances relevant to the liberal grant analysis,
there is no indication in the record that this was the reason
for the military judge’s denial of Appellant’s challenge for
cause.” Clay, 64 M.J. at ___ (11, n.2).
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if the immediate commander lacks the authority to dispose of the
matter at his level, he forwards the matter to a superior.
R.C.M. 306. The intent of the drafters of the UCMJ was to
“prevent courts martial from being an instrumentality and agency
to express the will of the commander,”2 or to appear to be such
an instrumentality. The decision to retain Capt H, the spouse
of Appellant’s immediate commander, unnecessarily raised the
perception of improper command bias. For these reasons, we
conclude that the military judge erred by denying the challenge
for cause against Capt H, the spouse of Appellant’s commander
whose safety might have been affected by the alleged theft, on
the ground of implied bias.
DECISION
The decision of the United States Air Force 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 Air Force. A rehearing may be
authorized.
2
Uniform Code of Military Justice: Hearings on H.R. 2498 Before
a Subcommittee of the House Committee on Armed Services, 81st
Cong. 606 (1949) (statement of Professor Edmund M. Morgan Jr.),
reprinted in Index and Legislative History, Uniform Code of
Military Justice (1950) (not separately paginated).
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