United States v. Bagstad , 68 M.J. 460 ( 2010 )

UNITED STATES, Appellee
v.
Jason M. BAGSTAD, Staff Sergeant
U.S. Marine Corps, Appellant
No. 09-0429
Crim. App. No. 200602454
United States Court of Appeals for the Armed Forces
Argued December 7, 2009
Decided April 13, 2010
STUCKY, J., delivered the opinion of the Court, in which EFFRON,
C.J., and RYAN, J., joined. BAKER, J., filed a separate
dissenting opinion, in which ERDMANN, J., joined.
Counsel
For Appellant: Major Anthony W. Burgos, USMC (argued).
For Appellee: Colonel Louis J. Puleo, USMC (argued); Lieutenant
Duke J. Kim, JAGC, USN, and Brian K. Keller, Esq. (on brief);
Captain Geoffrey S. Shows, USMC.
Amicus Curiae for Appellant: Eugene R. Fidell, Esq., Michelle
M. Lindo McCluer, Esq., Stephen A. Saltzburg, Esq., and Jonathan
E. Tracey, Esq. (on brief) -- for the National Institute of
Military Justice.
Military Judges: J. Wynn (arraignment) and P. J. Ware (trial)
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Bagstad, No. 09-0429/MC
Judge STUCKY delivered the opinion of the Court.
We granted review to determine whether the military judge
abused his discretion in denying Appellant’s challenge for cause
against Captain (Capt) Stojka, who sat with his subordinate on a
court-martial panel composed of three members. We hold that the
military judge did not err in denying the challenge for cause.
I.
Contrary to his pleas, a special court-martial composed of
members convicted Appellant of wrongfully using marijuana, in
violation of Article 112a, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 912a (2006). The members sentenced
Appellant to a bad-conduct discharge and reduction to the lowest
enlisted grade. The convening authority approved the bad-
conduct discharge but disapproved the reduction in grade, and
the United States Navy-Marine Corps Court of Criminal Appeals
(CCA) affirmed. United States v. Bagstad, 67 M.J. 599, 602
(N-M. Ct. Crim. App. 2008). The CCA had previously set aside
Appellant’s conviction and remanded for a rehearing or a
dismissal. United States v. Bagstad, No. NMCCA 200602454, 2007
CCA LEXIS 444, at *1, 2007 WL 3307025, at *1 (N-M. Ct. Crim.
App. Oct. 31, 2007) (unpublished).
At the second court-martial, the venire was originally
composed of five members: Capt Pirttinen, Capt Stojka, First
Sergeant Nguyen, Gunnery Sergeant (GySgt) Walston, and GySgt
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Hightower. Voir dire revealed that Capt Stojka was the senior
reporting officer for GySgt Walston. The military judge asked
GySgt Walston if he would feel inhibited in any way in voicing
an opinion that disagreed with Capt Stojka’s opinion, and GySgt
Walston responded that he would not. The military judge then
asked Capt Stojka whether he would feel undermined if a
subordinate voiced an opinion different from his in
deliberations, and Capt Stojka responded that he would not. The
defense did not question either Capt Stojka or GySgt Walston
about their senior-subordinate relationship.
After questioning but prior to the challenges, the military
judge sua sponte expressed his intention to excuse Capt
Pirttinen based on her knowledge of the results of Appellant’s
previous trial. The defense then challenged Capt Stojka for
cause, in part on the ground that Capt Stojka wrote GySgt
Walston’s fitness report.
The Government responded by arguing that GySgt Walston was
an experienced staff noncommissioned officer who would have no
trouble being on the same panel as Capt Stojka. The military
judge then denied the challenge for cause against Capt Stojka.
The military judge’s analysis did not specifically address Capt
Stojka’s reporting relationship with GySgt Walston.
The defense exercised its peremptory challenge on GySgt
Hightower. The military judge then formally excused Capt
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Pirttinen and GySgt Hightower. The defense did not object to
the final composition of the three-member panel.
II.
Appellant argues that the military judge’s denial of the
challenge for cause resulted in an unfair trial because the
senior member and one of his subordinates comprised the two-
thirds majority sufficient to convict.
Rule for Courts-Martial (R.C.M.) 912(f)(1)(N) mandates that
a member be excused whenever he should not sit “in the interest
of having the court-martial free from substantial doubt as to
legality, fairness, and impartiality.” “This rule encompasses
challenges based upon both actual and implied bias.” United
States v. Elfayoumi, 66 M.J. 354, 356 (C.A.A.F. 2008) (citing
United States v. Clay, 64 M.J. 274, 276 (C.A.A.F. 2007)).
“Implied bias exists when, ‘regardless of an individual member’s
disclaimer of bias, most people in the same position would be
prejudiced . . . .’” United States v. Briggs, 64 M.J. 285, 286
(C.A.A.F. 2007) (quoting United States v. Napolitano, 53 M.J.
162, 167 (C.A.A.F. 2000)). The test for determining an R.C.M.
912(f)(1)(N) challenge for implied bias is objective, “‘viewed
through the eyes of the public, focusing on the appearance of
fairness.’” Clay, 64 M.J. at 276 (quoting United States v.
Rome, 47 M.J. 467, 469 (C.A.A.F. 1998)). The hypothetical
“public” is assumed to be familiar with the military justice
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system. See United States v. Downing, 56 M.J. 419, 423
(C.A.A.F. 2002). In carrying out this objective test, this
Court determines “whether the risk that the public will perceive
that the accused received something less than a court of fair,
impartial members is too high.” United States v. Townsend, 65
M.J. 460, 463 (C.A.A.F. 2008). Challenges for actual or implied
bias are evaluated based on the totality of the factual
circumstances. United States v. Bragg, 66 M.J. 325, 327
(C.A.A.F. 2008) (citing United States v. Strand, 59 M.J. 455,
459 (C.A.A.F. 2004)).
This Court’s standard of review on a challenge for cause
premised on implied bias is “less deferential than abuse of
discretion, but more deferential than de novo review.” United
States v. Moreno, 63 M.J. 129, 134 (C.A.A.F. 2006) (citing
United States v. Armstrong, 54 M.J. 51, 54 (C.A.A.F. 2000);
United States v. Napoleon, 46 M.J. 279, 283 (C.A.A.F. 1997)).
We apply less deference in this case because the military judge
did not place his analysis concerning the senior-subordinate
relationship portion of the challenge on the record. See United
States v. Richardson, 61 M.J. 113, 120 (C.A.A.F. 2005)
(providing less deference where the military judge’s analysis
was not comprehensive).
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III.
We find that the military judge did not err in denying the
challenge for two reasons. First, there is no per se rule that
a military judge must dismiss a member “predicated solely on the
fact that a senior member of the court-martial is involved in
writing or endorsing the effectiveness reports of junior
members.” United States v. Murphy, 26 M.J. 454, 456 (C.M.A.
1988); accord United States v. Wiesen, 56 M.J. 172, 175
(C.A.A.F. 2001). And second, there was no other evidence in the
record indicating implied bias from the ratings relationship
that would cause the knowledgeable member of the public to
perceive that the accused’s court-martial panel was not fair and
impartial. See Townsend, 65 M.J. at 463.
Before the CCA and this Court, Appellant cited this Court’s
decision in Wiesen for the proposition that implied bias is
implicated where the senior member and his subordinate
constitute the two-thirds majority necessary to convict. 56
M.J. at 175. But at the time of Appellant’s challenge for
cause, only half of the panel was involved in any senior-
subordinate relationship because Appellant had not yet exercised
his peremptory challenge on GySgt Hightower. Appellant also did
not object to the final composition of the three-member panel on
the basis that it violated Wiesen. As such, we review the
military judge’s denial of the challenge from the perspective of
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when Appellant objected and the military judge pronounced his
ruling, not with hindsight and knowledge of the final
composition of the panel.
Appellant’s challenge simply asserted that Capt Stojka
wrote GySgt Walston’s fitness report. Appellant did not ask any
questions or make any argument on the record concerning the
relationships between members on the panel, the general nature
of relationships between company commanders and their gunnery
sergeants, or the actual nature of the relationship between Capt
Stojka and GySgt Walston beyond its senior-subordinate
component. Under these circumstances, there is a lack of
evidence in the record supporting a claim of implied bias.
A challenge for cause is a contextual judgment that is
determined through the totality of the factual circumstances.
In this case, the military judge’s denial of the challenge for
cause was in accord with this Court’s precedent that a member
need not be dismissed solely on the basis of a ratings
relationship with another member. We are confident that, viewed
through the eyes of the public, the military judge’s denial of
the challenge for cause against Capt Stojka did not create doubt
as to the fairness of Appellant’s court-martial.
IV.
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed.
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BAKER, Judge, with whom ERDMANN, Judge, joins (dissenting):
There is no per se rule against a reporting senior and a
subordinate sitting on the same court-martial panel. See United
States v. Wiesen, 56 M.J. 172, 175 (C.A.A.F. 2001). The mere
existence of a senior-subordinate relationship does not require
a per se disqualification; rather, the decision rests on the
context and is rooted in the public’s perception of the
deference accorded to military officers.
The problem in this case is that Appellant was tried and
convicted by a three-member panel composed of a company
commander, that commander’s company gunnery sergeant, and a
senior enlisted member from another command. That is a
structure that looks more like “company office hours”
(nonjudicial punishment) than a military court-martial.
There is a reason the Military Judges’ Benchbook includes
voir dire questions regarding the reporting chain of command.
Dep’t of the Army, Pam. 27-9, Legal Services, Military Judges’
Benchbook ch. 2 § V, para. 2-5-1 (2010). The reason is not
found in a per se rule of exclusion; nor out of concern that
military members might compromise their integrity for a better
fitness report. Rather, some military relationships are just
too close to sustain public or military confidence in the fair
administration of justice where such members sit together. As
stated in Wiesen:
United States v. Bagstad, No. 09-0429/MC
[t]he focus is on the perception or appearance of
fairness of the military justice system. At the same
time, this Court has suggested that the test for
implied bias also carries with it an element of actual
bias. Thus, there is implied bias when most people in
the same position would be prejudiced.
56 M.J. at 174 (citations and quotation marks omitted). That
was the case in Wiesen and it is the case here.
The problem with the majority’s analysis is that it treats
the reporting chain of command like a civilian human resources
department might treat it. The administrative chain of command
is not a sterile concept, comprised of line diagrams and fitness
reports. The analysis is divorced from the reality of military
life. This case is not about fitness reports; it is about the
special relationship, particularly in Marine Corps life, which
exists in a company headquarters among the company commander,
his executive officer, the first sergeant, and the company
gunnery sergeant.
The bond among these leaders may be strong or it may be
weak. They may respect each other; they may not. It need not
matter. Whatever the actual rapport among these leaders in a
given company, the interplay is constant, the bond unique, and
the opportunity for influence or resentment continuous. We
should, however, recognize that these relationships permeate
company grade life. The point is that in a Marine company the
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relationship between the commanding officer and the company
gunnery sergeant holds a special place.
The majority avoids the special nature of company grade
relationships in the Marine Corps by asserting that defense
counsel only objected to the nature of the “reporting
relationship” between Captain Stojka and Gunnery Sergeant
Walston. United States v. Bagstad, __ M.J. __ (3) (C.A.A.F.
2010). In other words, defense counsel forfeited any objection
that extended beyond the drafting of fitness reports, because he
did not specifically raise “the Gunny objection.” This argument
presumes that the military judge, a Marine lieutenant colonel,
did not understand the relationship between a company gunnery
sergeant and the company commander. Although a civilian judge
may not be familiar with this relationship, a military judge
does not need an explanation from counsel concerning “the
general nature of relationships between company commanders and
their gunnery sergeants.” Bagstad, __ M.J. at __ (7).
The majority also addresses the issue by arguing that at
the time the defense objected the panel consisted of four
members only two of which came from the same company. Id. at __
(6). Military judges are not required to be prescient, but they
are required to think one step ahead. Here, the initial panel
was composed of only five members. Thus, it should not have
required omnipotence on the part of the military judge to
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anticipate the possibility that two members of the same company
headquarters could end up on a three-member panel.1
Whatever the public might perceive regarding the appearance
of fairness in the military justice system, and I am confident
“the public” would find the composition of this three-member
panel dubious, I am certain that a junior enlisted Marine would
think a panel composed like the one in this case was anything
but fair. Therefore, I respectfully dissent.
1
As in Wiesen, 56 M.J. at 176, the record does not reflect an
exigent or military circumstance limiting the pool of available
members or requiring selection of these particular members to
the panel.
4