United States v. Albaaj , 65 M.J. 167 ( 2007 )

UNITED STATES, Appellee
v.
Alaa E. ALBAAJ, Sergeant
U.S. Army, Appellant
No. 07-0002
Crim. App. No. 20000121
United States Court of Appeals for the Armed Forces
Argued April 25, 2007
Decided June 21, 2007
ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and BAKER, STUCKY, and RYAN, JJ., joined.
Counsel
For Appellant: Major Scott T. Ayers (argued); Lieutenant
Colonel Steven C. Henricks and Major Tyesha E. Lowery (on
brief); Colonel John T. Phelps II, Major Billy B. Ruhling II,
and Captain Fansu Ku.
For Appellee: Captain Trevor B. A. Nelson (argued); Lieutenant
Colonel Michele B. Shields and Major Paul T. Cygnarowicz (on
brief); Colonel John W. Miller II and Lieutenant Colonel Kevin
Boyle.
Military Judge: Patrick J. Parrish
This opinion is subject to revision before final publication.
United States v. Albaaj, No. 07-0002/AR
Judge ERDMANN delivered the opinion of the court.
Sergeant Alaa Albaaj was convicted by a general court-
martial with members of disobeying lawful orders, maltreatment,
making a false official statement, sodomy, assault with a means
likely to produce death or grievous bodily harm, and indecent
acts. He was sentenced to a dishonorable discharge, confinement
for ten years, forfeiture of all pay and allowances, and
reduction to the lowest enlisted grade. The convening authority
approved the sentence.
In response to a petition for a new trial based on
allegations of juror misconduct, the United States Army Court of
Criminal Appeals ordered an evidentiary hearing.1 United States
v. Albaaj, No. ARMY 20000121 (A. Ct. Crim. App. Aug. 19, 2004).
Based on the results of that hearing the Court of Criminal
Appeals denied the petition for new trial and affirmed the
findings and sentence. United States v. Albaaj, No. ARMY
20000121 (A. Ct. Crim. App. Aug. 1, 2006).
The Supreme Court has noted that a touchstone of a fair
trial is an impartial trier of fact:
Voir dire examination serves to protect that right by
exposing possible biases, both known and unknown, on
the part of potential jurors. Demonstrated bias in
the responses to questions on voir dire may result in
a juror being excused for cause; hints of bias not
sufficient to warrant challenge for cause may assist
parties in exercising their peremptory challenges.
1
See United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411(1967).
2
United States v. Albaaj, No. 07-0002/AR
The necessity of truthful answers by prospective
jurors if this process is to serve its purpose is
obvious.
McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 554
(1984). “Where a potential member is not forthcoming . . . the
process may well be burdened intolerably.” United States v.
Mack, 41 M.J. 51, 54 (C.M.A. 1994).
We granted review to determine whether Albaaj’s right to
trial by a panel of fair and impartial members was violated when
a panel member failed to disclose that he knew Albaaj’s brother,
who was a defense witness on both the merits and sentencing.2 We
conclude the member’s failure to disclose his relationship with
Albaaj’s brother, Emad, constitutes juror misconduct. When
viewed objectively, the circumstances of the relationship
combined with the member’s failure to disclose it to the
military judge injure the perception of fairness in the military
justice system. Most members in the same position would be
prejudiced or biased. The decision of the Court of Criminal
Appeals is therefore reversed.
2
We granted review of the following issue:
WHETHER APPELLANT’S CONSTITUTIONAL AND REGULATORY RIGHT TO
A FAIR AND IMPARTIAL PANEL WAS VIOLATED BY THE MISCONDUCT
OF A PANEL MEMBER.
64 M.J. 402 (C.A.A.F. 2007).
3
United States v. Albaaj, No. 07-0002/AR
Background
One of the venire members assembled for Albaaj’s court-
martial was Major Melcher, now Lieutenant Colonel Melcher
(retired), the Executive Officer for the Director of Information
Management (DOIM) at Fort Carson, Colorado. During preliminary
instructions, the military judge directed the members that “if
you know of any matter which you believe may affect your
impartiality to sit as a court member, you must disclose that
when asked to do so.” The members were advised that the grounds
for challenge included “any . . . matter that may affect your
impartiality.”
After the members examined the charges, they were asked
whether “any member of the court is aware of any matter which he
or she believes may be a ground for challenge by either side.”
None of the members responded. The military judge specifically
asked: “Does anyone know anyone named, Emad, in any of the
specifications?” There was a negative response from each
member, including Melcher. At the conclusion of voir dire,
there was a challenge by the defense to a single enlisted
member, which was granted by the military judge. Neither party
exercised a peremptory challenge. The court-martial panel
ultimately consisted of nine members, including Melcher.
As part of its case-in-chief, the defense called Albaaj’s
brother, Emad Albaaj, as a witness. From 1998 to 2000, Emad was
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United States v. Albaaj, No. 07-0002/AR
the information management officer for the Range Control
Division and was also the functional manager for the Range
Facility Management Support System3 (RFMSS) at Fort Carson. The
DOIM, for which Melcher was the executive officer, provided the
server and connections that supported RFMSS. Emad’s testimony
on the merits spans twenty-one pages of the record of trial. He
was recalled briefly during sentencing as a defense witness in
extenuation and mitigation. Although Melcher had prior work-
related contact with Emad, he did not reveal that fact to the
military judge even after he recognized Emad during the trial.
In his post-trial submissions to the convening authority,
Albaaj raised an issue of court member misconduct. He alleged
that Melcher had failed to honestly answer a material question
on voir dire and that because Melcher and Emad had an “extremely
antagonistic relationship” there were “substantial doubt[s] as
to the legality, fairness and impartiality of the proceedings.”
Attached to the petition for clemency were a number of e-mails
authored by Melcher reflecting his work relationship with Emad.
The messages included statements by Melcher that were critical
of Emad and questioned his honesty. The convening authority
granted no relief for this claim of error.
3
The RFMSS is an automated system that controls the ranges,
schedules ranges, controls the live fire, and deconflicts live
training to ensure the safety of soldiers.
5
United States v. Albaaj, No. 07-0002/AR
Before the Court of Criminal Appeals, Albaaj again raised
the issue of court member misconduct. He also filed a petition
for new trial under Article 73, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 873 (2000), claiming fraud on the court
because Melcher failed to disclose his prior relationship with
Emad. In response to the petition for new trial, the lower
court ordered a post-trial DuBay hearing to inquire into the
allegation of court member misconduct and directed that the
military judge make findings of fact and conclusions of law on
that issue.4
Both Melcher and Emad testified at the DuBay hearing. The
testimony confirmed that during mid to late 1999, Melcher and
Emad had professional contact concerning the administration of
computer servers and systems that supported the Range Control
Division operations. The testimony established that Melcher
developed negative impressions of Emad during this time. A
degree of acrimony was reflected in e-mail from Melcher
suggesting that Emad was “trash[ing] the DOIM,” that Emad “had
his facts wrong,” and that Emad’s communications outside Fort
Carson were “BS” that had a negative impact. In general,
Melcher believed that Emad had misrepresented facts and had “a
personal agenda which is not based on the fact[s] or truth.”
4
“[A]n evidentiary hearing is the appropriate forum to develop
the full circumstances” surrounding such allegations of court
6
United States v. Albaaj, No. 07-0002/AR
However, Melcher testified that over time he had occasion to
reevaluate Emad’s opinions and indicated that before Albaaj’s
trial, he had developed a favorable opinion of Emad. After
considering the evidence presented at the DuBay hearing the
military judge concluded that Melcher “did not fail to honestly
answer a material question on voir dire” and that Melcher did
not fail to later disclose his knowledge of Emad in bad faith.
Finally, the military judge concluded that there was no basis
upon which to challenge Melcher for cause either for actual or
for implied bias.
Discussion
We expect complete candor from court members during voir
dire. United States v. Modesto, 43 M.J. 315, 318 (C.A.A.F.
1995). Anything less undermines the purpose of the member
selection process at trial and, in turn, potentially deprives an
accused of an impartial determination of guilt and a fair trial.
See Mack, 41 M.J. at 54 (“this Court consistently has required
member honesty during voir dire”); United States v. Lake, 36
M.J. 317, 323 (C.M.A. 1993) (the court will not “condone such
reticence by . . . members”); United States v. Rosser, 6 M.J.
267, 273 (C.M.A. 1979) (“No premium will be paid in the military
justice system for lack of candor on the part of its members”),
member misconduct. United States v. Mack, 41 M.J. at 55-56;
United States v. Humpherys, 57 M.J. 83, 96 (C.A.A.F. 2002).
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abrogated on other grounds by United States v. Biagase, 50 M.J.
143, 151 (C.A.A.F. 1999).
In Mack, we adopted the two-pronged test articulated by the
Supreme Court in McDonough for determining whether a new trial
is warranted when there is an allegation that a juror failed to
disclose information during voir dire: “‘[A] party must first
demonstrate that a juror failed to answer honestly a material
question on voir dire, and then further show that a correct
response would have provided a valid basis for a challenge for
cause.’” 41 M.J. at 55 (quoting McDonough, 464 U.S. at 556);
see also United States v. Ruiz, 49 M.J. 340, 346 (C.A.A.F.
1998).
We agree with the military judge’s conclusion that: “If a
court member learns of information during the trial which makes
an earlier response to a voir dire question inaccurate, the
member should so advise the court.” The duty of candor does not
stop at the end of voir dire but is an obligation that continues
through the duration of the trial. It makes no difference
whether the member knew during voir dire that his response to a
question was incorrect or whether he later realized, or
reasonably should have realized, that his initial response was
incorrect -- the duty to honestly inform the court is the same.
We need not address whether Melcher’s response during voir
dire that he did not know anyone named “Emad” was a “failure to
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answer honestly” under McDonough. The first prong of the
McDonough test in this circumstance is whether the member failed
to honestly inform the military judge that his earlier response
to a material voir dire question was incorrect. The military
judge’s preliminary question put Melcher on notice that someone
named “Emad” was involved in the trial and that knowledge of
that individual was of some importance to the selection of the
court-martial panel. When Emad entered the courtroom to
testify, Melcher recognized him and realized that he knew him
from their work relationship. At that point it was, or should
have been, clear to Melcher that his previous answer to the
military judge’s question about whether anyone knew “Emad” was
incorrect.
While the DuBay military judge found that Melcher’s “lack
of disclosure was not done in bad faith,” that is not the proper
inquiry. A panel member is not the judge of his own
qualifications. See R.C.M. 801(a)(4) (the military judge rules
on “all questions of law raised during the court-martial”);
R.C.M. 912(f)(3) (“The military judge shall rule finally on each
challenge.”). The duty to disclose cannot be dependent upon the
court member’s own evaluation of either the importance of the
information or his ability to sit in judgment. Just as honest
disclosure must be made in response to direct questions on voir
dire, honest disclosures must be made throughout the trial
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United States v. Albaaj, No. 07-0002/AR
“regardless of [the members’] own belief as to their ability to
sit as court members.” Rosser, 6 M.J. at 273.5 When Emad took
the witness stand, Melcher either was or should have been aware
that his initial response to the military judge’s question
concerning Emad was incorrect. We conclude that by failing to
correct the misinformation he had given during voir dire,
Melcher violated his duty of candor.
The first prong of the McDonough test also requires that
the question be “material,” which is defined as “[h]aving some
logical connection with the consequential facts . . . [or] [o]f
such a nature that knowledge of the item would affect a person’s
decision-making.” Black’s Law Dictionary 998 (8th ed. 2004).
There can be no doubt that a question as to a potential member’s
knowledge of a witness is “material” to a defendant’s right to
expose potential biases in order to ensure an impartial jury.
As a result of Melcher’s nondisclosure, Albaaj’s defense
counsel was unaware of the relationship between Melcher and Emad
during the trial when he could have made further inquiry into
the nature of the relationship. As a result of that inquiry he
could have moved for a mistrial or asked that Melcher be removed
from the panel prior to deliberations, either for cause or on
5
Although Rosser predicated this conclusion on paragraph 62.b.,
Manual for Courts-Martial, United States (1969 rev. ed.), it is
no less applicable to R.C.M. 912. See Manual for Courts-
Martial, United States, Analysis of the Rules for Courts-Martial
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the basis that he would have exercised his peremptory challenge
against Melcher had he been aware of the relationship.
Therefore, we conclude that Melcher failed to disclose
information that was material to the conduct of a fair and
impartial trial.
The second prong of the McDonough test is whether the
correct response to the question would have provided a valid
basis for a challenge. Albaaj urges that Melcher’s prior
undisclosed relationship with Emad constitutes bias under R.C.M.
912(f)(1)(N) and therefore establishes a basis for a valid
challenge for cause. Challenges under R.C.M. 912(f)(1)(N)
encompass both actual and implied bias. United States v.
Briggs, 64 M.J. 285, 286 (C.A.A.F. 2007) (citing United States
v. Strand, 59 M.J. 455, 458 (C.A.A.F. 2004)). These are
“separate legal tests, not separate grounds for challenge.”
United States v. Armstrong, 54 M.J. 51, 53 (C.A.A.F. 2000).
In the case of actual bias, we are generally deferential to
a military judge’s ruling because such challenges “involve[]
judgments regarding credibility, and because ‘the military judge
has an opportunity to observe the demeanor of court members and
assess their credibility during voir dire.’” United States v.
Clay, 64 M.J. 274, 276 (C.A.A.F. 2007) (quoting United States v.
Daulton, 45 M.J. 212, 217 (C.A.A.F. 1996)).
app. 21 at A21-61 (2005 ed.), indicating that the Rule and its
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“[T]he test for implied bias is objective, and asks
whether, in the eyes of the public, the challenged member’s
circumstances do injury to the ‘perception of appearance of
fairness in the military justice system.’” United States v.
Terry, 64 M.J. 295, 302 (C.A.A.F. 2007) (quoting United States
v. Moreno, 63 M.J. 129, 134 (C.A.A.F. 2006)). In making this
objective evaluation, we ask whether most members in the same
position as Melcher would be prejudiced or biased. Id. (quoting
Strand, 59 M.J. at 459). Because of this objective test and the
nature of the inquiries, “‘issues of implied bias are reviewed
under a standard less deferential than abuse of discretion but
more deferential than de novo.’” Strand, 59 M.J. at 458(quoting United States v. Miles, 58 M.J. 192, 195 (C.A.A.F.
2003)). As we decide the issue of bias under R.C.M.
912(f)(1)(N) on the basis of implied bias, there is no need for
the court to address the issue of actual bias in this case.
The evidence from the DuBay hearing reflects that
throughout the summer of 1999 and continuing as late as the end
of October 1999, Melcher evidenced a marked hostility toward
Emad. The e-mails reflect both that Melcher was unhappy with
aspects of Emad’s conduct and that he questioned Emad’s honesty.
Viewed objectively, the e-mail correspondence reveals that
Melcher thought very little of Emad either professionally or
discussion are based upon paragraph 62.b.
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United States v. Albaaj, No. 07-0002/AR
personally. However, at the DuBay hearing Melcher claimed that
sometime between his last e-mail on October 29, 1999, and the
court-martial on February 9, 2000, he had gained a new-found
appreciation for Emad’s work and a new appreciation for Emad’s
character.
Despite the member’s asserted change in his personal
evaluation of Emad, the record clearly established that Melcher
was openly antagonistic toward Emad and questioned his honesty
as recently as fifteen weeks before the court-martial. Not only
was the relationship between Melcher and Emad uncertain in tone,
where we are dealing with a witness who is a brother of the
accused, there is a risk that the member might impart their
feelings about the witness to the accused. Those factors, when
combined with Melcher’s subsequent failure to disclose the
relationship even after he realized his earlier response was
incorrect, raises concerns about the impartiality of this member
and the resultant fairness of the proceeding. A reasonable
public observer of this trial would conclude that Melcher’s
actions injured the perception of fairness in the military
justice system. Albaaj has therefore established implied bias
which is a valid basis for challenge of Major Melcher and has
satisfied both prongs of the McDonough test.
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United States v. Albaaj, No. 07-0002/AR
Decision
The decision of the United States Army Court of Criminal
Appeals is reversed. The findings and sentence are set aside.
A rehearing is authorized.
14