United States v. Causey ( 2022 )

This opinion is subject to administrative correction before final disposition.
Before
GASTON, HOUTZ, and MYERS
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Isiah Anthony P. CAUSEY
Aviation Boatswain’s Mate (Aircraft Handler) Airman (E-3),
U.S. Navy
Appellant
No. 202000228
_________________________
Argued: 11 January 2022—Decided: 23 March 2022
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judges:
Ann K. Minami (arraignment)
Kimberly J. Kelly (trial)
Sentence adjudged 19 June 2020 by a general court-martial convened
at Naval Base Kitsap-Bremerton, Washington, consisting of officer and
enlisted members. Sentence in the Entry of Judgment: confinement for
one year and a dishonorable discharge.
For Appellant:
Lieutenant Commander Megan P. Marinos, JAGC, USN
For Appellee:
Lieutenant John L. Flynn IV, JAGC, USN (argued)
Major Clayton L. Wiggins, USMC (on brief)
United States v. Causey, NMCCA No. 202000228
Opinion of the Court
Judge MYERS delivered the opinion of the Court, in which Senior Judge
GASTON and Judge HOUTZ joined. Senior Judge GASTON filed a sep-
arate concurring opinion.
_________________________
PUBLISHED OPINION OF THE COURT
_________________________
MYERS, Judge:
Contrary to his pleas, Appellant was convicted by officer and enlisted mem-
bers of three specifications of Article 80, Uniform Code of Military Justice
[UCMJ], for attempted sexual abuse by communicating indecent language to
“Mackenzie,” whom he believed to be a child who had not attained the age of
16 years; attempted sexual abuse by intentionally exposing his genitalia to her;
and attempted wrongful receipt of child pornography by requesting that Mac-
kenzie send him digital images of her exposed genitalia and other sexually ex-
plicit conduct.
Appellant asserts five assignments of error [AOEs]: (1) the military judge
abused her discretion when she denied Appellant’s request for expert assis-
tance; (2) the military judge abused her discretion when she denied Appellant’s
request for an expert witness; (3) the trial counsel committed prosecutorial
misconduct during his closing and rebuttal arguments by expressing his per-
sonal opinion of the evidence and disparaging the defense counsel’s argument;
(4) the trial counsel committed prosecutorial misconduct during his sentencing
argument by telling the members not to consider properly admitted evidence,
to consider facts not in evidence, and to give a sentence based on something
other than the specific facts of the case; and (5) in light of Ramos v. Louisiana, 1
a military defendant has the right to a unanimous verdict in a criminal trial
by court-martial. We find no prejudicial error and affirm.
I. BACKGROUND
In February 2019, using the profile, “IsiahAnthony,” Appellant sent a mes-
sage on an online social network to “Mack,” whose profile indicated the user
was 18 years old. Several short messages were relayed between “Mack” and
1 Ramos v. Louisiana, ___ U.S. ___, 140 S. Ct. 1390 (2020).
2
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Opinion of the Court
“IsiahAnthony” over the course of the next 13 days, until “Mack,” also known
as “Mackenzie” and “Mackigurl6,” requested that Appellant use a different
chat application. Appellant obliged. In these further chats, “Mackenzie” stated,
“I should prob tell u. Imma little younger than my profile says.” 2 After Mac-
kenzie informed Appellant that she was 13 years of age, Appellant responded,
“Ok yeah we can’t talk I’m 22 . . . I can’t risk getting in trouble sense ur a
teenage and I’m 22 years old.” 3 Mackenzie replied, “Okk I understand,” but
Appellant continued the chat by stating, “Ur 13 I’m 22 anyone found out I’d go
to jail,” and “Ok how do ik this ain’t a set up of some sort,” followed by “Like
ever heard of to catch a predator.” 4 Thereafter, despite Mackenzie’s professed
age, Appellant continued to chat with her, informing her that he was mastur-
bating. He then requested nude photographs from her and sent her a photo-
graph of his erect penis. He also articulated the sexual acts he wanted to en-
gage in with the purported minor, to include ejaculating on her face and having
anal sex with her.
Mackenzie was in fact Special Agent [SA] Sienna Echo 5 with the Naval
Criminal Investigative Service [NCIS], engaged in a proactive child exploita-
tion investigation. Approximately one week after Appellant’s online conversa-
tion with Mackenzie, SA Echo interviewed Appellant, who acknowledged that
he had communicated online with a 13-year-old girl named Mackenzie. He
stated that due to alcohol consumption he could not recall the entirety of his
online conversation with Mackenzie, but admitted that he did remember some
details. During the interview, SA Echo did not inform Appellant that she was
Mackenzie and maintained the pretense that Appellant had been speaking
with a 13-year-old child, and at no point during the interview did Appellant
claim or otherwise give any indication that he believed Mackenzie was an adult
at the time of the online conversations. Appellant expressed remorse for his
behavior and wrote the fictitious Mackenzie’s parents a letter of apology.
2 Pros. Ex. 1 at 1.
3 Id.4 Id.5 Allnames in this opinion, other than those of Appellant, the judges, and counsel,
are pseudonyms.
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Opinion of the Court
II. DISCUSSION
A. Request for Expert Assistance
Appellant asserts that the military judge abused her discretion in denying
Appellant’s pretrial motion for expert assistance in the area of forensic linguis-
tics. We review a military judge’s ruling on a request for expert assistance for
abuse of discretion. 6 The abuse of discretion standard is a strict one, calling for
more than a mere difference of opinion—the challenged action must be “arbi-
trary, fanciful, clearly unreasonable,” or “clearly erroneous.” 7
A request for expert assistance must show a reasonable probability that the
expert would be of assistance to the defense (i.e., that the expert is necessary),
and that denial of the expert assistance would result in a fundamentally unfair
trial. 8 To demonstrate necessity, the request must show (1) why the expert is
needed; (2) what the expert assistance will accomplish; and (3) why the defense
would be unable to gather and present the evidence that the expert assistance
would be able to develop. 9
Appellant’s motion to compel the assistance of a forensic linguist was pred-
icated on the notion that Appellant “naturally recognized his chat partner was
an adult, outside of his own generation . . . based on characteristic linguistic
differences that exist between all generations, and which are difficult to mimic
unnoticed.” 10 Appellant argued that in order to explain why he believed Mac-
kenzie was an adult at the time of the online conversations, he required expert
assistance in linguistics to “analyze text to identify the linguistic flags that
alert in-generation members to an imposter.” 11
The military judge denied Appellant’s request, concluding that it failed to
show the necessity of the requested expert. She reasoned that the factual issue
to be resolved at trial was the accused’s state of mind while he was engaged in
chats with Mackenzie, on which the expert’s knowledge and opinion regarding
linguistic patterns had no bearing. In support of this view, the military judge
6 United States v. Lloyd, 69 M.J. 95, 99 (C.A.A.F. 2010).
7 United States v. McElhaney, 54 M.J. 120, 130 (C.A.A.F. 2000) (quoting United
States v. Miller, 46 M.J. 63, 65 (C.A.A.F. 1997)).
8 United States v. Freeman, 65 M.J. 451, 458 (C.A.A.F. 2008).
9 United States v. Gonzalez, 39 M.J. 459, 461 (C.M.A. 1994).
10 App. Ex. IV at 1.
11 Id. at 2.
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Opinion of the Court
cited Appellant’s affidavit, submitted in support of the motion, in which he
stated that due to intoxication he had no recollection of his belief regarding
Mackenzie’s age at the time of the alleged offenses. The military judge also
noted that during his online chats with Mackenzie, Appellant never expressed
any belief that he was speaking with an adult. She reasoned that “[Appellant’s]
inability to state with any certainty his actual belief or lack thereof regarding
‘Mackenzie’s’ age at the time of the alleged offenses and the lack of any other
evidence that he believed her to be an adult significantly attenuate any possi-
ble relevance of [the expert linguist’s] expertise and therefore any reasonable
probability that his expertise will both be of assistance and is required for a
fair trial.” 12 She therefore concluded that “far from assisting the Defense in
elucidating [Appellant’s] state of mind, [the expert’s] expertise creates confu-
sion by shifting focus away from [Appellant’s] state of mind, i.e., the fact at
issue, to [the expert’s] ability as a forensic linguist to defeat the efforts of a
given writing’s author to mask her identity.” 13 Finally, she found that Appel-
lant and his defense counsel had the tools to develop this defense without the
assistance of an expert.
Appellant’s arguments before this Court again miss the mark. An expert
consultant hired for the purpose of discerning the likely age of Mackenzie
based on linguistics found in her texts was irrelevant to the issue before the
trial court, which was not the “real” age of Mackenzie, but whether Appellant
believed her to be a 13-year-old child. Appellant did not make the requisite
showing of necessity at the trial court, we find the military judge’s findings of
fact are supported by the evidence and not clearly erroneous, and we do not
find her ruling to be arbitrary, fanciful, clearly unreasonable, or clearly erro-
neous. We therefore find no abuse of discretion in her denial of the motion for
expert assistance.
B. Request for Expert Witness
Appellant asserts that the military judge also abused her discretion in
denying his motion for an expert witness in the field of forensic linguistics. We
review a military judge’s denial of an expert witness for abuse of discretion. 14
12 App. Ex. XVII at 7.
13 Id.
14 United States v. Ruth, 46 M.J. 1, 3 (C.A.A.F. 1997).
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The standard for production of an expert witness is more stringent than
the standard for producing an expert consultant. In seeking to compel an ex-
pert witness, the defense must show the witness is relevant and necessary. 15
To meet this standard, pursuant to United States v. Houser, the defense must
establish the expert’s qualifications, the propriety of the subject matter of the
expert’s expected testimony, the basis for the testimony, the legal relevance of
the evidence, and the reliability of the evidence. 16 It must also pass the Mil. R.
Evid. 403 balancing test regarding whether the probative value of the testi-
mony outweighs other considerations. 17
Here, several months after the military judge denied its motion for an ex-
pert consultant in the field of forensic linguistics and 13 days before trial, the
Defense moved to compel the same expert consultant as an expert witness.
Other than the convening authority’s written denial of its expert witness re-
quest, the Defense did not submit any additional evidence beyond what had
been submitted in the earlier motion for an expert consultant. The Defense
again argued its theory that Appellant believed he was communicating with
an inartful mimic, based on inherent linguistic differences between all gener-
ations, and that the expert linguist’s testimony was critical to the issue of Ap-
pellant’s subjective belief about Mackenzie’s age at the time of his chats with
her. However, in the same affidavit submitted in support of the motion for an
expert consultant, 18 Appellant stated that due to intoxication he had no recol-
lection of his belief regarding Mackenzie’s age at the time of the offense and
that only when reviewing the chat transcript did he conclude that Mackenzie
did not sound like his younger siblings, nieces, and nephews, such that he
would never have believed her to be 13 years old.
The military judge denied the motion, concluding that the expert’s proposed
testimony was neither material nor necessary. She properly applied the factors
outlined in Houser, finding that the expert’s testimony would be of minimal
probative value, which was substantially outweighed by the danger of confus-
ing the issues and misleading the members. She again determined that the
question before the members was not whether the expert could determine the
“true” age of Mackenzie based on linguistic patterns in the chat logs, nor
whether the language used within the chats raised red flags or concerns for the
expert regarding her age; rather, it was whether Appellant, a then-22-year-old
15 Rulefor Courts-Martial [R.C.M.] 703(d)(2)(A)(i); United States v. Rivers, 49 M.J.
434, 446 (C.A.A.F. 1998).
16 United States v. Houser, 36 M.J. 392, 397 (C.M.A. 1993).
17 Id.18 App. Ex. IV, Encl. F. at 1.
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Opinion of the Court
Sailor with no training in linguistics, believed Mackenzie was a 13-year-old
child at the time of the chats. The military judge found the expert’s testimony
would not assist the trier of fact in determining Appellant’s state of mind at
the time of the chats, since
[a]t most, he indicated he would be able to say that the closer in
age one is to a certain age group, i.e., 13-year-olds, and the more
exposure one has to communications of that age group, the more
likely one would be to detect (even unconsciously) someone mim-
icking the age group. A statement of the obvious does not “help
the trier of fact to understand the evidence or to determine a fact
in issue.” 19
The military judge further found that evidence supportive of the Defense’s the-
ory could be introduced through alternative means, such as cross-examination
of SA Echo or, if he sought to introduce direct evidence regarding his state of
mind, Appellant’s own testimony.
We find that the military judge did not abuse her discretion in denying the
motion to compel the expert witness. Appellant argues that his trial defense
team needed to be able to cross-examine SA Echo regarding every word or
phrase she used during her communications with Appellant, and to further
show why certain language was not age-appropriate for a purported 13-year-
old. But, like the military judge, we find this argument misses the point. The
issue is not whether Mackenzie was in fact a 13-year-old girl (which was con-
ceded not to be the case—she was an adult NCIS agent), but whether Appellant
did or did not believe she was 13 years old at the time he communicated with
her. Based on the evidence before this Court, the evidence regarding that sub-
jective belief would not have been informed by the testimony of an expert in
linguistics about how in his opinion the language used in the chats was or was
not typical of the language used by an actual 13-year-old.
C. Trial Counsel’s Comments During Closing and Rebuttal Arguments
Appellant contends that the trial counsel committed prosecutorial miscon-
duct by using the pronoun “we” and the phrase “we know” during his closing
and rebuttal arguments, disparaging the defense counsel’s theme and theory,
and injecting his personal views of the evidence and Appellant’s guilt. We re-
view improper argument de novo and if no objection is made, we review for
plain error. The three-part test for plain error is: (1) was there error; (2) was it
19 App. Ex. XXXIV at 3 (quoting Mil. R. Evid. 702(a)).
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Opinion of the Court
plain or obvious; and (3) was there material prejudice to a substantial right. 20
When there is an objection at trial, we test any error for material prejudice to
the appellant’s substantial rights. 21 Challenged argument is reviewed not
based “on words in isolation, but on the argument viewed in context” and
“within the context of the entire court-martial. 22
1. Using the Pronoun “We” and the Phrase “We Know”
Appellant argues that the trial counsel’s use of word, “we,” and the term,
“we know,” constituted improper vouching. We disagree.
“Improper vouching can include the use of personal pronouns in connection
with assertions that a witness was correct or to be believed.” 23 Examples of
such improper vouching include saying, “I think it is clear, I’m telling you, and
I have no doubt,” 24 “[w]e all know [the victim] didn’t make this up,” “[w]e all
know [the accused] lied on the video,” “[w]e know [the accused’s conduct] wasn’t
accidental,” and “[w]e know this was not the actions [sic] of an innocent man.” 25
Our superior court has also found improper vouching where the trial counsel
argued “we know that that was from an amount that’s consistent with recrea-
tional use, having fun and partying with drugs” in conjunction with arguing
that the drug test results were the “perfect litigation package” and that the
government’s expert witness was “the best possible person in the whole country
to come speak to us about this.” 26
However, “the use of personal pronouns in closing argument is not per se a
due process violation,” and the “key issue is not the form but the content of
such statements.” 27 “[T]he prosecutor’s closing argument need not be confined
20 United States v. Norwood, 81 M.J. 12, 19–20 (C.A.A.F. 2021) (quoting United
States v. Marsh, 70 M.J. 101, 104 (C.A.A.F. 2011)).
21 Id. at 19 (citing United States v. Voorhees, 79 M.J. 5, 9 (C.A.A.F. 2019)).
22United States v. Baer, 53 M.J. 235, 238 (C.A.A.F. 2000) (citing United States v.
Young, 470 U.S. 1, 16 (1985)) (internal quotation marks omitted).
23 United States v. Fletcher, 62 M.J. 175, 180 (C.A.A.F. 2005) (internal citation
omitted) (emphasis added).
24 Id.25 United States v. Sewell, 76 M.J. 14, 20 (C.A.A.F. 2017).
26 Fletcher, 62 M.J. at 180.
27 United States v. Veater, 576 Fed. Appx. 846, 853 (10th Cir. 2014) (unpublished)
(internal quotation marks and citation omitted).
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Opinion of the Court
to such detached exposition as would be appropriate in a lecture.” 28 “An attor-
ney’s statements that indicate his opinion or knowledge of the case are permis-
sible if the attorney makes it clear that the conclusions he is urging are con-
clusions to be drawn from the evidence.” 29
Here, the trial counsel’s use of pronouns was clearly directed toward urging
conclusions to be drawn from the evidence:
So, members, let’s talk about the investigation. We know it be-
gan as an operation, an undercover operation. Special Agent
[Echo] testified about how this operation got put together . . . . 30
....
That shows that the idea for each one of those offenses that’s
charged originated with Airman Causey. The defense of entrap-
ment exists only if the original suggestion and initiative to com-
mit the offense originated with the government. Here we know
it did not. 31
....
So next is the sexual abuse of a child by exposing genitalia. This
similar element, he had to intend to expose his genitalia, which
again, we know that was not—had he taken a picture of his penis
and he meant to send it to somebody else, maybe that would be
an issue, but he sends it to her. And we know he intended to send
it to her because he follows it up with “I bed [sic] you want to feel
that in your p[***].” So we know that was a specific act that he
intended and, again, that he intended it to someone under. So
we know that because then he describes all the things that he
would do with that penis were they in person. 32
28 United States v. Jones, 468 F.3d 704, 708 (10th Cir. 2006) (quoting United States
v. Isaacs, 493 F.2d 1124, 1164 (7th Cir. 1974)).
29 UnitedStates v. Scilluffo, No. ACM 39539, 2020 CCA LEXIS 62, *62–63 (A.F. Ct.
Crim. App. March 4, 2020) (unpublished) (citing United States v. Morris, 568 F.2d 396,
401 (5th Cir. 1978); United States v. Rivas, 493 F.3d 131, 137 (3d Cir. 2007); United
States v. Beaman, 361 F.3d 1061 (8th Cir. 2004); and United States v. Francis, 170 F.3d
546, 550 (6th Cir. 1999)).
30 R. at 567.
31 R. at 570.
32 R. at 573.
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Opinion of the Court
....
So if we go to these charges, we know that we have the actual
acts. We have the language. We have the picture of his genitals,
which I don’t have a slide for that. We have the request for child
pornography, the request that she make it and send it to him. 33
....
So just at large, I can’t go shoot somebody and then say, “Well, I
was drunk,” and then everyone just says that’s fine. Right? So if
I have to form the specific intent, that’s required mentally, which
we know Airman Causey did because he was communicating
clearly. There were not typos. He was specifically requesting
things. There’s actually no evidence, aside from him saying “I’m
drunk” that there was. 34
....
So his general disposition to try and dodge accountability shows,
because we know he knew exactly what was going on, he’s just
trying to come up with a way to avoid admitting that he knows
the content of these messages. You know why we know? Because
there were some things that they showed him and he said,
“Yeah, that looks familiar. Yes, I do remember that.” 35
....
He says, “Why didn’t I just freaking look at porn? I don’t f[***]ing
know.” But, members, we know that his browsing history shows
he was actually looking at porn. 36
....
What is reasonable to believe is that when he says “I was trying
to finish masturbating, I was trying to entice her,” that he actu-
ally meant that, because we know he was masturbating. We
know he wanted pictures. So you put yourself in the mind of the
33 R. at 575.
34 R. at 576.
35 R. at 577–78.
36 R. at 579.
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accused and if, at that moment, he believed he was talking to a
13-year-old girl, he’s guilty. 37
We decline to expand Fletcher’s holding to encompass such use of pronouns,
which is properly focused on drawing reasoned conclusions from the evidence
in the record, as opposed to expressing personal opinions regarding the credi-
bility of witnesses or other evidence. Therefore, while nevertheless cautioning
practitioners regarding their use, we find the trial counsel’s use of personal
pronouns in this case was not improper.
2. Injecting Personal Views of the Evidence and Appellant’s Guilt
Appellant further contends that the trial counsel made improper argu-
ments by stating the following:
The only time that we have evidence that he was, in fact, drink-
ing is because he’s trying to come up with a reason to say “I don’t
remember any of this.” And members, it is not compelling. So we
are going to talk about how you know he’s lying. 38
....
So you put yourself in the mind of the accused and if, at that
moment, he believed he was talking to a 13-year-old girl, he’s
guilty. And, members, he is, beyond all reasonable doubt. 39
....
So members, reason. Is it reasonable to think that someone who
at no point says, “I thought she was 18” actually thought she was
18? Members, that’s not reasonable. 40
....
You can have speculative doubts, but there are no reasonable
doubts before you, members. There is not one reasonable doubt.
It is not reasonable to believe that in the face of all the evidence
against the accused, . . . never once telling law enforcement,
when questioned about whether he committed this crime, that
he thought she was 18. It is not reasonable to believe that that
37 R. at 604.
38 R. at 576.
39 R. at 604.
40 R. at 603.
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person actually thought so. What is reasonable is to believe is
that when he says “I was trying to finish masturbating, I was
trying to entice her,” that he actually meant that . . . . 41
We find no merit in Appellant’s claims that these statements constitute
improper argument. The trial counsel referenced the proper legal standard for
reasonable doubt and applied the facts in evidence and the reasonable infer-
ences derived therefrom. He provided proper argument regarding why the ev-
idence met the elements of the charged offenses beyond a reasonable doubt,
and why that same evidence proved the lack of an affirmative defense beyond
a reasonable doubt.
3. Disparaging Appellant’s Theme and Theory
The Defense’s theme at trial was that the online chat with Mackenzie was
“one big ‘con’—a series of lies.” 42 The defense counsel even suggested the court-
martial itself was a “con” 43 and referred to the case as a “con” 14 times in his
closing argument. 44 The trial counsel responded to this theme during his re-
buttal argument, stating, “Members, this court-martial is not a con. This is a
very formal proceeding. It’s very serious . . . . I apologize for a reference that
what you’re doing here is a con.” 45 The defense counsel objected, and the mili-
tary judge directed the trial counsel to move on.
Appellant asserts the trial counsel’s response was improper and constitutes
error. The Government concedes that the trial counsel improperly disparaged
Appellant’s theme during rebuttal, but argues Appellant was not prejudiced
given the comment’s minimal impact and the overall strength of the Govern-
ment’s case. 46 We find the initial statements—“Members, this court-martial is
not a con. This is a very formal proceeding. It’s very serious . . . .”—to be non-
objectionable rebuttal. However, the last sentence wherein the trial counsel
apologizes to the members is improper because it injects the trial counsel into
the proceeding by purporting to shield the members from the defense counsel’s
perceived affront to the solemnity of the proceedings. Such an apology may also
41 R. at 603–04.
42 Appellant’s Br. at 21.
43 R. at 580
44 R. at 580, 592–93, 595.
45 R. at 595 (emphasis added).
46 Gov’t Ans. at 35.
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be viewed as an attempt to gain favor with the members by aligning the trial
counsel with the members against the defense counsel, which could turn the
trial into a popularity contest, rather than a means of deciding the case “solely
on the basis of the evidence presented.” 47 A court-martial is not an extension
of trial counsel, and it was error for the trial counsel to use an apology to sug-
gest otherwise. We therefore find the military judge properly stopped the trial
counsel from making further comments of this sort.
4. Prejudice
Because we found error in the trial counsel’s “apology,” we test for preju-
dice. Material prejudice occurs where there is “a reasonable probability that,
but for the error, the outcome of the proceeding would have been different.” 48
In making this determination, we evaluate the improper argument‘s severity,
the curative measures adopted, and the weight of the evidence supporting the
conviction. 49 “[T]he third factor may so clearly favor the government that the
appellant cannot demonstrate prejudice.” 50 “[R]eversal is warranted only when
the trial counsel’s comments taken as a whole, were so damaging that we can-
not be confident that the members convicted the appellant on the basis of the
evidence alone.” 51
Here, “[e]ven assuming that trial counsel’s misconduct was severe and the
military judge’s instructions were insufficient, we find the third Fletcher factor
dispositive in this case.” 52 The evidence supporting Appellant’s convictions is
decidedly strong. From sending “Mackenzie,” a law enforcement agent posing
as a 13-year-old girl, pictures of his exposed penis, to asking for images of her
“t[***], a[***][, and] p[***],” to talking about masturbating while communi-
cating with her, to expressing remorse to NCIS and Mackenzie’s “parents,” we
47 Fletcher, 62 M.J. at 181 (Young, 470 US at 18)
48 Norwood, 81 M.J. at 20 (internal quotation marks and citation omitted).
49 Id. at 19 (quoting Voorhees, 79 M.J. at 12).
76 M.J. at 18; see also United States v. Halpin, 71 M.J. 477, 480 (C.A.A.F.
50 Sewell,
2013) (holding the same for improper argument during sentencing).
51 Sewell, 76 M.J. at 18.
52 Id.at 19 (where victim testimony and the appellant’s admissions overcame any
potential prejudice by improper argument); see also United States v. Hornback, 73 M.J.
155, 161 (C.A.A.F. 2014) (where the testimony of two witnesses who observed the ap-
pellant smoking an illicit substance was strong enough to override the absence of a
drug test and pervasive improper character argument that the appellant was a drug
user).
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Opinion of the Court
cannot say that “counsel’s comments taken as a whole were so damaging that
we cannot be confident that the members convicted [A]ppellant on the basis of
the evidence alone.” 53 We therefore find that the apology made by trial counsel
was improper, but that this error was not prejudicial.
D. Trial Counsel’s Comments During Sentencing Argument
Appellant asserts that the trial counsel also gave improper sentencing ar-
gument by suggesting that the members not consider the fact that there was
no child victim, that Appellant needed to be confined for three years to ensure
he received proper treatment, and that his sentence should be adjudged based
on how it would appear in a news headline. He argues that the cumulative
impact of this misconduct resulted in material prejudice to Appellant’s sub-
stantial rights. We address each in turn and find some error, but no prejudice.
1. Argument That Appellant Should Not Receive a “Windfall” Because
There Was No Actual Child Victim
Trial counsel are allowed to recommend a specific sentence and can argue
a host of factors including the need for the sentence to reflect the seriousness
of the offense, promote respect for the law, and provide just punishment for the
offense. 54 Here, Appellant was convicted of attempted child sexual abuse. The
fact that no child was actually victimized is part and parcel of the offense for
which Appellant was to be sentenced. Under these circumstances, we hold that
the trial counsel’s argument that Appellant should not get a “windfall” because
there was no actual victim fell within the bounds outlined in the Rules for
Courts-Martial and was not improper.
2. Argument Regarding Hypothetical Newspaper Scenario
Improper sentencing argument has been found where the trial counsel
“pressured the members to consider how their fellow servicemembers would
judge them and the sentence they adjudged instead of the evidence at hand.” 55
“Trial counsel may properly ask for a severe sentence, but they cannot threaten
the court members with the specter of contempt or ostracism if they reject their
request.” 56 “Arguing an inflammatory hypothetical scenario with no basis in
53 R. 360–495; Pros. Exs. 1–2, 4–7; Norwood, 81 M.J. at 19.
54 R.C.M. 1001(h), 1002(f)(3).
55 Norwood, 81 M.J. at 21.
56 Id. (internal quotation marks and citation omitted).
14
United States v. Causey, NMCCA No. 202000228
Opinion of the Court
evidence amounts to improper argument” that our superior court has repeat-
edly condemned. 57 However, trial counsel may argue that a sentence needs to
“promote adequate deterrence of misconduct.” 58
Here, the trial counsel stated:
when . . . this information, the results of today’s sentencing, gets
to the fleet, if we were to read E-3 from Carl Vinson found guilty
of attempted sexual abuse of a child for attempting to receive
child pornography from her by requesting that she make it, and
that Sailor received blank as punishment, when you read that,
what number in your head would you say “that seems right, that
seems appropriate”? And if you wouldn’t read that and say, “that
seems like the right outcome,” do not vote for that sentence.
Don’t even propose it. If you know that you would not be com-
fortable reading that, that should not be a discussion for what is
an appropriate sentence. 59
There was no objection to this argument. However, the military judge did sub-
sequently issue the following general instruction:
[m]embers, [the trial counsel] touched on this, but while deter-
rence is one appropriate consideration, you do need to impose a
sentence appropriate to the specific offenses of which the ac-
cused has been convicted, namely violations of Article 80, which
is attempt. Also, appropriate to this particular accused and ap-
propriate to the specific facts of this case. 60
We find no plain error under these circumstances. The trial counsel asked
the members to imagine what they would think of the sentence they proposed
if they read it in the newspaper, as opposed to what other servicemembers would
think. We further find that any implied or potential consideration of what oth-
ers would think upon reading about the sentence the members imposed in a
newspaper, as well as any concern that general-deterrence considerations
would cause the members to disregard the specifics of the case in front of them,
were cured by the military judge’s appropriate, tailored instruction.
57 Id. ( citing Voorhees, 79 M.J., at 14–15).
58 R.C.M. 1002(f)(3)(d); See R.C.M. 1001(h).
59 R. at 708–09.
60 R. at 712.
15
United States v. Causey, NMCCA No. 202000228
Opinion of the Court
3. Argument Regarding Collateral Consequences
“Although military judges and members should not generally consider col-
lateral consequences in assessing a sentence, this is not a bright-line rule,” as
sometimes “it may be appropriate for the military judge to instruct on collat-
eral matters.” 61 “For example, the availability of parole and rehabilitation pro-
grams are issues of general knowledge and concern, and as such they may be
instructed upon, especially when requested by the members.” 62 However, in
those situations, “the military judge should then instruct the members that
although the possibility of parole exists in the military justice system, they
could not consider it in arriving at an appropriate sentence for the appellant.” 63
Here, the trial counsel gave the following argument:
Dr. [Juliet] explained how in his in-depth psychosexual analysis,
he concluded, an expert in forensic psychology, that Airman
Causey needs treatment. He needs rehabilitation. He needs
treatment in impulse control. We’re rewiring how he responds to
certain stimulus. That takes time. He needs treatment in sub-
stance abuse and in victim impact awareness. This is basic em-
pathy. That takes time to develop. And so we need to put Airman
Causey in a place where he can receive sex offender treatment.
So the Government, for that reason additionally, is requesting
these 3 years of confinement, because he has not learned his . . .
lesson. 64
The defense counsel objected on grounds that the argument was an improper
reference to collateral consequences and that it was not based on any evidence
presented. The military judge sustained the objection.
While we agree the argument was improper, as there was no evidence re-
garding sex offender treatment programs or timelines, it was immediately the
subject of a sustained objection, at which point the improper argument ceased.
Further, as previously discussed, there was significant aggravating evidence
against Appellant. The Government asked for three years’ confinement and a
dishonorable discharge; Appellant’s trial defense counsel asked the members
61United States v. McNutt, 62 M.J. 16, 19 (C.A.A.F. 2005) (internal quotation
marks and citation omitted).
62 Id.63 Id.64 R. at 707–08.
16
United States v. Causey, NMCCA No. 202000228
Opinion of the Court
to sentence Appellant to only a bad-conduct discharge; and the members ulti-
mately sentenced him to confinement for one year and a dishonorable dis-
charge. Under these circumstances, we find that Appellant was not prejudiced
by the improper argument.
E. The Right to Unanimous Verdicts at Courts-Martial
Finally, Appellant challenges his conviction on the grounds that Article 52,
UCMJ, 65 which does not require a unanimous verdict for non-capital convic-
tions, is now facially unconstitutional in light of the Supreme Court’s decision
in Ramos v. Louisiana. 66 We review constitutional issues de novo. 67
The Sixth Amendment states, “In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial, by an impartial jury of the
State and district wherein the crime shall have been committed . . . .” 68 The
Supreme Court has long held that the right to “trial by an impartial jury,” as
applied to criminal trials in Article III courts, requires a unanimous verdict in
order to convict a defendant of a serious crime. 69 More recently, in Ramos, the
Supreme Court held that the same right, requiring a unanimous verdict, also
applies via the Fourteenth Amendment to criminal trials conducted in state
courts. 70
Appellant argues that under Ramos, the Sixth Amendment right to unani-
mous verdicts now applies to courts-martial. We disagree. As the Supreme
65 Article 52, UCMJ, provides that in a general or special courts-martial with mem-
bers, the concurrence of at least three-fourths of the members present when the vote
is taken is required to reach guilty findings and a sentence, except in capital cases, in
which unanimity is required for both the findings and the sentence.
66 7Although Ramos was decided several months prior to the start of Appellant’s
trial, Appellant’s trial defense counsel did not challenge the constitutionality of Article
52, UCMJ. Our record does not reveal the number of votes for Appellant’s conviction.
See R.C.M. 922(e) (prohibiting polling the members about their voting). However, we
consider the constitutionality of the three-fourths requirement because it did apply to
this court martial, and we presume that only three-fourths members voted for convic-
tion.
67 United States v. Ali, 71 M.J. 256, 265 (C.A.A.F. 2012).
68 U.S. Const. amend. VI (emphasis added).
69 Ramos,___ U.S. at ___, 140 S. Ct. at 1396–97 (“In all, this Court has commented
on the Sixth Amendment’s unanimity requirement no fewer than 13 times over more
than 120 years.”) (citations omitted).
70 Id. at 1394.
17
United States v. Causey, NMCCA No. 202000228
Opinion of the Court
Court has repeatedly held, the Constitution recognizes that “the exigencies of
military discipline require the existence of a special system of military courts
in which not all of the specific procedural protections deemed essential in Ar-
ticle III trials need apply.” 71 The Court’s jurisprudence in this area stands for
the proposition that, while similar now in many ways to state and federal ci-
vilian criminal courts, 72 the military justice system is unique and subject to a
different degree of constitutional protection than what is afforded in civilian
criminal trials. 73
While it is well established that constitutional safeguards apply to the mil-
itary “except insofar as they are made inapplicable either expressly or by nec-
essary implication,” 74 our superior court has repeatedly found that the Sixth
Amendment right to trial by an “impartial jury of the State and district
wherein the crime shall have been committed” is one of the safeguards that
does not apply to courts-martial. 75 Although there is significant case law re-
garding empaneling unbiased members in military courts, the law regarding
the impartiality of court-martial panels generally derives from R.C.M. 912 and
Articles 25 and 41, UCMJ, not from the Sixth Amendment. 76 As Ramos does
71 O’Callahan v. Parker, 395 U.S. 258, 261 (1969) (overruled on other grounds).
72 See Ortiz v. United States, ___ U.S. ___, 138 S. Ct. 2165, 2170 (2018).
73 See Ex parte Milligan, 71 U.S. 2, 123 (1866) (noting that “the framers of the
Constitution, doubtless, meant to limit the right of trial by jury, in the sixth amend-
ment, to those persons who were subject to indictment or presentment in the fifth” and
“[t]he discipline necessary to the efficiency of the army and navy, required other and
swifter modes of trial than are furnished by the common law courts . . . .”); Ex parte
Quirin, 317 U.S. 1, 40 (1942) (“ ‘[C]ases arising in the land or naval forces’ . . . are
expressly excepted from the Fifth Amendment, and are deemed excepted by implica-
tion from the Sixth”); Whelchel v. McDonald, 340 U.S. 122, 127 (1950).
74 United States v. Tempia, 37 C.M.R. 249, 254 (C.M.A. 1967).
75 United States v. Riesbeck, 77 M.J. 154, 162 (C.A.A.F. 2018) (“Courts-martial are
not subject to the jury trial requirements of the Sixth Amendment.”); United States v.
Easton, 71 M.J. 168, 175 (C.A.A.F. 2012) (same); United States v. Wiesen, 57 M.J. 48,
50 (C.A.A.F. 2002) (same); United States v. Kirkland, 53 M.J. 22, 24(C.A.A.F. 2000).
76 See United States v. Ai, 49 M.J. 1, 4 (C.A.A.F. 1998) (“[A]n accused in a federal
civilian criminal trial has a constitutional right to impartial jury members to deter-
mine his guilt. A servicemember similarly has, as a matter of ‘fundamental fairness,’
the right to impartial court members to decide his guilt. In addition, a military accused
has a regulatory right to court members who appear to be impartial.”) (citations omit-
ted); Wiesen. 57 M.J. at 50 (stating that issues involving who may serve on a court-
martial should be viewed through the lens of Article 25, not the Sixth Amendment right
to trial by jury, which does not apply to courts-martial) (citations omitted). But see
18
United States v. Causey, NMCCA No. 202000228
Opinion of the Court
not address the military justice system, which is not subject to the Sixth
Amendment right to trial by an impartial jury, we do not view it as overturning
this prior precedent. In any event, it is the prerogative of our superior court,
not this one, to overturn its own precedents. 77 Therefore, we hold that the Sixth
Amendment’s right to trial by an impartial jury, which now requires a unani-
mous verdict for serious offenses tried in either state or Article III federal crim-
inal courts, is still not applicable to courts-martial. 78
III. CONCLUSION
After careful consideration of the record and briefs of appellate counsel, we
have determined that the findings and sentence are correct in law and fact and
that no error materially prejudicial to Appellant’s substantial rights oc-
curred. 79
The findings and sentence are AFFIRMED.
Senior Judge GASTON and Judge HOUTZ concur.
United States v. Lambert, 55 M.J. 293, 295 (C.A.A.F. 2001) (stating “the Sixth Amend-
ment requirement that the jury be impartial applies to court-martial members and
covers not only the selection of individual jurors, but also their conduct during the trial
proceedings and the subsequent deliberations”) (citing R.C.M. 912 and 923 (1995)).
77 See United States v. Andrews, 77 M.J. 393, 399 (C.A.A.F. 2018) (quoting United
States v. Quick, 74 M.J. 332, 343 (C.A.A.F. 2015) (Stucky, J., dissenting)) (stating the
well-settled principle of vertical stare decisis that “courts ‘must strictly follow the de-
cisions handed down by higher courts’”); United States v. Davis, 76 M.J. 224, 228 n.2
(C.A.A.F. 2017) (“It is this Court’s prerogative to overrule its own decisions.”).
78To the extent Appellant argues that unanimous verdicts are also required at
court-martial by fundamental fairness under the Fifth and Sixth Amendments, that,
too, has been rejected by our superior court. United States v. Bramel, 32 M.J. 3 (C.M.A.
1990) (summary disposition).
79 Articles 59 & 66, UCMJ.
19
United States v. Causey, NMCCA No. 202000228
GASTON, S.J. (concurring)
GASTON, Senior Judge (concurring):
I agree with my colleagues that the Sixth Amendment right to “trial by an
impartial jury,” wherein the Supreme Court has found the right to a unani-
mous verdict resides, does not apply to courts-martial. The Amendment’s fur-
ther requirement that the jury be drawn from “the State and district wherein
the crime shall have been committed” strongly supports the Court’s early ob-
servation that “the framers of the Constitution, doubtless, meant to limit the
right of trial by jury, in the [S]ixth [A]mendment, to those persons who were
subject to indictment or presentment in the [F]ifth,” 1 which specifically excepts
“cases arising in the land or naval forces.” 2 The Court’s more recent holding in
Ramos v. Louisiana, 3 that the right to trial by an impartial jury requires a
unanimous verdict for a serious offense tried in state court, does not change
the Sixth Amendment jury right’s settled inapplicability to the military justice
system.
But as Chief Judge Crawford of the Court of Appeals for the Armed Forces
[CAAF] once noted, “[t]he fact that the Sixth Amendment right to trial by jury
does not apply to court-martial proceedings . . . does not require us to jettison
Supreme Court precedent and good logic in assessing whether [an] appellant
was tried by a fair, impartial jury of his superiors.” 4 Although a military ac-
cused does not possess this right under the Sixth Amendment per se, CAAF
has found that “the Sixth Amendment requirement that the jury be impartial
applies to court-martial members and covers not only the selection of individ-
ual jurors, but also their conduct during the trial proceedings and the subse-
quent deliberations,” 5 which include voting on the findings and sentence.
CAAF has also found that “[a]s a matter of due process, an accused has a con-
stitutional right, as well as a regulatory right, to a fair and impartial panel.” 6
And multiple Supreme Court Justices have found that the “requirements of
1 Ex parte Milligan, 71 U.S. 2, 123 (1866).
2 U.S. Const. amend. V.
3 ___ U.S. ___, 140 S. Ct. 1390 (2020).
4 United States v. Wiesen, 57 M.J. 48, 53 n.2 (C.A.A.F. 2002) (Crawford, C.J., dis-
senting).
5 United States v. Lambert, 55 M.J. 293, 295 (C.A.A.F. 2001) (citing Rules for
Courts-Martial 912 and 913 (1995)).
6 United States v. Wiesen, 56 M.J. 172, 174 (C.A.A.F. 2001) (citation omitted).
20
United States v. Causey, NMCCA No. 202000228
GASTON, S.J. (concurring)
unanimity and impartial selection . . . complement each other in ensuring the
fair performance of the vital functions of a criminal court jury.” 7
It is therefore worth examining why the Supreme Court regards the right
to “trial by an impartial jury” as including the right to a unanimous verdict. As
the Court found in Ramos, one reason is because when James Madison wrote
the Sixth Amendment into the Bill of Rights in 1791, “[i]f the term ‘trial by an
impartial jury’ carried any meaning at all it surely included a requirement as
long and widely accepted” as a unanimous verdict, which by that time “had
been required for about 400 years.” 8 Justice Story later explained that “in com-
mon cases, the law not only presumes every man innocent, until he is proven
guilty; but unanimity in the verdict of the jury is indispensable.” 9 This connec-
tion between unanimous verdicts and the presumption of innocence has also
been viewed as implying a further connection with proof of guilt beyond a rea-
sonable doubt, which the Court held is required by due process as “a prime
instrument for reducing the risk of convictions resting on factual error.” 10 As
Justice Kavanaugh reasoned in Ramos, allowing state criminal courts to use
non-unanimous verdicts “sanctions the conviction at trial . . . of some defend-
ants who might not be convicted under the proper constitutional rule [requir-
ing unanimity] . . . .” 11
While the Supreme Court has recognized that “[t]he procedural protections
afforded to a service member are ‘virtually the same’ as those given in a civilian
criminal proceeding, whether state or federal,” 12 the use of non-unanimous ver-
dicts at courts-martial remains one of their “fundamental differences from the
practices in the civilian courts.” 13 In fact, the military justice system, which
the Court has noted is “older than the Constitution,” 14 has never required
7 Ramos, 140 S. Ct. at 1418 (Kavanaugh, J., concurring) (quoting Johnson v. Loui-
siana, 406 U. S. 356, 398 (1972) (Stewart, J., dissenting)).
8 Ramos, 140 S. Ct. at 1396.
9 Id. (quoting 2 J. Story, Commentaries on the Constitution of the United States
§ 777, p. 248 (1833)).
10 In re Winship, 397 U.S. 358, 363 (1970).
11 Ramos, 140 S. Ct. at 1417 (Kavanaugh, J., concurring).
12 Ortiz v. United States, ___ U.S. ___, 138 S. Ct. 2165, 2174 (2018).
13 O’Callahan v. Parker, 395 U.S. 258, 262 (1969) (overturned on other grounds).
14 Ortiz, ___ U.S. at ___, 138 S. Ct. at 2175 (internal quotation marks and citations
omitted).
21
United States v. Causey, NMCCA No. 202000228
GASTON, S.J. (concurring)
unanimous verdicts in non-capital cases. Early courts-martial were generally
decided by a majority vote. 15 When the Uniform Code of Military Justice was
enacted after complaints about the unfairness of courts-martial during World
War II, the vote requirement for non-capital convictions was increased to two-
thirds. 16 In 2016, the vote requirement was changed to three-fourths. 17
Historically, the reason cited by the Supreme Court for this difference is
that “[t]he discipline necessary to the efficiency of the army and navy, required
other and swifter modes of trial than are furnished by the common law
courts.” 18 While the legislative history is less than clear on this issue, it seems
logical that requiring non-unanimous verdicts might reduce deliberation time
and the occurrence of hung juries, as compared to systems requiring unani-
mous verdicts to convict or acquit. 19 The State of Louisiana argued as much in
Burch v. Louisiana in support of its system of allowing non-unanimous verdicts
by six-person juries. 20 However, the Supreme Court rejected the argument in
this context. While acknowledging that the State had “a substantial interest
in reducing the time and expense associated with the administration of its sys-
tem of criminal justice,” the Court found the benefits that might accrue from
such a system, as opposed to one requiring unanimous verdicts, were “specu-
lative, at best,” and were at the impermissible cost of threatening “the sub-
stance of the jury trial guarantee.” 21
That said, in comparison with the power the States have over their criminal
justice systems vis-à-vis the Bill of Rights, Congress has much greater consti-
tutional authority over the military justice system. As the Supreme Court ex-
plained in Weiss v. United States,
15W. Winthrop, Military Law and Precedents 377 (2nd ed. 1920) (noting the con-
currence of two-thirds was required only to impose a death sentence).
16 Article 52(a), UCMJ (1950), Ch. 169, § 1, 64 Stat. 125 (repealed 1956, Ch. 1041,
§ 53, 70A Stat. 641); Manual for Courts-Martial, United States (1951 ed.) [MCM], Ch.
XIII, para. 74.d.(3) at 111.
17 Military Justice Act of 2016, Pub. L. No. 114-328, 130 Stat. 2894 (2016) (codified
at 10 U.S.C. § 852).
18 Milligan, 71 U.S. at 123.
19Requiring unanimous verdicts only to convict—meaning a lack of unanimity
would result in an acquittal—would not cause this problem.
20 Burch v. Louisiana, 441 U.S. 130, 138–39 (1979).
21 Id.22
United States v. Causey, NMCCA No. 202000228
GASTON, S.J. (concurring)
Congress, of course, is subject to the requirements of the Due
Process Clause when legislating in the area of military affairs,
and that Clause provides some measure of protection to defend-
ants in military proceedings. But in determining what process is
due, courts must give particular deference to the determination
of Congress, made under its authority to regulate the land and
naval forces, U.S. Const., Art. I, § 8. 22
In light of this strong judicial deference, congressional enactments in the area
of military justice are generally upheld unless it can be shown that “the factors
militating in favor of [the asserted right] are so extraordinarily weighty as to
overcome the balance struck by Congress.” 23
Here, Appellant does not claim that the use of non-unanimous verdicts in
the military justice system has the same racially biased origins as their use in
the state systems overturned in Ramos, but it is worth examining their use at
courts-martial through the same lens of equal protection. In Ramos, one of the
things Justice Kavanaugh found troubling about the state systems’ use of non-
unanimous verdicts was that they undermined the protections of Batson v.
Kentucky. 24 In Batson, the Supreme Court held that the Equal Protection
Clause prohibits racial discrimination in the exercise of peremptory chal-
lenges. To combat this, Batson requires that if a prima facie case is established
that a party’s use of a peremptory challenge discriminates against a “cogniza-
ble racial group,” the party must articulate a race-neutral explanation for the
challenge. 25 In Justice Kavanaugh’s view, the use of non-unanimous verdicts
undermines this Batson protection by “[i]n effect . . . allow[ing] backdoor and
unreviewable peremptory strikes . . . .”26 He reasoned that
non-unanimous juries can make a difference in practice, espe-
cially in cases involving black defendants, victims, or jurors. . . .
[N]on-unanimous juries can silence the voices and negate the
votes of black jurors, especially in cases with black defendants
or black victims, and only one or two black jurors. . . . The [other]
22 Weiss v. United States, 510 U.S. 163, 176–77 (1994) (internal quotation marks
and citations omitted).
23 Id. at 177 (quoting Middendorf v. Henry, 425 U.S. 25, 44 (1976)).
24 476 U.S. 79 (1986).
25 Batson, 476 U.S. at 98.
26 Ramos, ___ U.S. ___, 140 S. Ct. at 1418 (Kavanaugh, J., concurring).
23
United States v. Causey, NMCCA No. 202000228
GASTON, S.J. (concurring)
jurors can simply ignore the views of their fellow panel members
of a different race or class. 27
As Justice Marshall succinctly put it, to “fence out a dissenting juror fences out
a voice from the community, and undermines the principle on which our whole
notion of the jury now rests.” 28
Our superior court has held that, as an aspect of equal protection under
Fifth Amendment due process, Batson’s prohibition against race-based dis-
crimination in the use of peremptory challenges “applies to courts-martial, just
as it does to civilian juries.” 29 In so deciding, in a spirit not unlike that of Chief
Judge Crawford regarding the Sixth Amendment right to trial by an impartial
jury, Chief Judge Everett reasoned that “even if we were not bound by Batson,
the principle it espouses should be followed in the administration of military
justice.” 30 Batson has since been applied also to prohibit gender-based discrim-
ination in the use of peremptory challenges in both civilian criminal courts 31
and courts-martial. 32 And CAAF judges have repeatedly found that the equal-
protection principle Batson espouses has broad application to the administra-
tion of military justice. 33
Given this context, Justice Kavanaugh’s concerns that the use of non-unan-
imous verdicts can increase the possibility of unfair or unjust verdicts and the
27 Ramos, ___ U.S. at ___, 140 S. Ct. at 1417–18 (Kavanaugh, J., concurring) (cita-
tions and internal quotation marks omitted).
28 Ramos,___ U.S. at ___, 140 S. Ct. at 1418 (Kavanaugh, J., concurring) (quoting
Johnson, 406 U.S. at 402 (Marshall, J., dissenting)).
29 United States v. Santiago-Davila, 26 M.J. 380, 390 (C.M.A. 1988).
30 Id.31 J.E.B. v. Alabama, 511 U.S. 127 (1994).
32 United States v. Witham, 47 M.J. 297 (C.A.A.F. 1997) (applying J.E.B. to courts-
martial).
33 See United States v. Bess, 80 M.J. 1, 20 (C.A.A.F. 2020) (Ohlson, J., dissenting)
(“Although Batson holds that the Equal Protection Clause ‘forbids the prosecutor to
challenge potential jurors solely on account of their race,’ the constitutional scope of
that opinion—if not its literal holding—extends beyond the context of peremptory chal-
lenges during voir dire.”) (quoting Batson, 476 U.S. at 89); United States v. Dockery, 76
M.J. 91, 100 (C.A.A.F. 2017) (Sparks, J., concurring) (“[W]hen any member of a suspect
class (such as a racial or ethnic group) is improperly removed from the court-martial
panel, the constitutional concerns underpinning Batson are implicated.”).
24
United States v. Causey, NMCCA No. 202000228
GASTON, S.J. (concurring)
fencing out of views of minority jurors—which ultimately could be by race, eth-
nicity, or gender—appear no less applicable to the military justice system than
to state criminal justice systems. These factors in favor of unanimous verdicts
appear weighty in comparison with the goal of “swifter modes of trial than are
furnished by the common law courts,” assuming the use of non-unanimous ver-
dicts in courts-martial achieves that goal in some measurable, non-speculative
way. However, Justice Kavanaugh’s concurring opinion in Ramos does not
carry the same binding authority as other existing case precedent in this area.
Therefore, I agree that we must leave to our superior courts the prerogative of
determining whether these (or other) factors are so extraordinarily weighty as
to overcome the balance struck by Congress in not requiring unanimous ver-
dicts for the conviction of serious, non-capital offenses tried at courts-martial. 34
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
e.g., United States v. Davis, 76 M.J. 224, 228 n.2 (C.A.A.F. 2017) (“It is this
34 See,
Court’s prerogative to overrule its own decisions.”).
25