United States v. Ruiz

46 M.J. 501
CourtUnited States Air Force Court of Criminal Appeals
DecidedMarch 3, 1997
DocketACM 31955
StatusPublished

This text of 46 M.J. 501 (United States v. Ruiz) is published on Counsel Stack Legal Research, covering United States Air Force Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Ruiz, 46 M.J. 501 (afcca 1997).

Opinion

OPINION OF THE COURT

MORGAN, J.H. Judge:

Court members found appellant guilty of adultery and fraternization, and sentenced him to a dismissal and a reprimand. Appellant raises numerous assignments of error, one of which merits prolonged discussion. Finding against appellant on all issues, we affirm.

Facts

During the period from November 1993 to July 1994, appellant fraternized with A1C B by allowing her to five in his house and to call him by his first name, wilting poetry and cards to her, and entering into an emotional and sexual relationship with her. From January to July 1994, appellant also committed adultery with A1C B on numerous occasions. Appellant was the hospital section commander during much of this period and A1C B was a member of his unit.

Appellant admitted to the underlying conduct in his statement to the Air Force Office of Special Investigations. At trial, the military judge denied appellant’s multiplicity motion to combine the adultery and fraternization specifications. Appellant litigated his guilt on the adultery and part of the fraternization.

Appellant pled guilty to fraternization except for the period of time he was no longer A1C B’s unit commander, arguing that he could not be guilty of fraternization without a command relationship. At all times in question, appellant was serving as honor guard commander and A1C B was a member of the honor guard. He argued that his status as honor guard commander was not sufficient to provide the command or supervisory relationship needed to establish fraternization. [506]*506The military judge also submitted this issue to the members as a factual question and provided them a definition of command and supervision. The members convicted appellant of both offenses as charged.

Assignments of Error

Appellant asserts the following errors: I. The military judge erred by failing to make trial counsel state a gender-neutral reason for his peremptory challenge of a female member; II. The military judge abused his discretion by denying a challenge for cause against Lieutenant Colonel (Lt Col) H and Lt Col T; III. Lt Col H made substantial misrepresentations during voir dire; IV. The convening authority erred by failing to grant a post-trial session to investigate the alleged misconduct of Lt Col H; V. The convening authority improperly picked court members by using commander status and rank as selection criteria; VI. The staff judge advocate improperly excluded officers from appellant’s unit from the list of court nominees; VII. The evidence is factually and legally insufficient on both offenses to support appellant’s conviction; VIII. The staff judge advocate’s recommendation failed to address matters submitted by appellant and omitted appellant’s character of service. We will address these claimed errors, some of which overlap, below.

I. Failure to Require Gender-Neutral Reason for Peremptory Challenge of Female Court Member

The trial counsel used his peremptory challenge against Major H, the only female court member. Civilian defense counsel asked the judge to require trial counsel to state a gender-neutral reason for his challenge, citing Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The military judge correctly observed that Batson dealt with race-based challenges and not gender but gave the defense a chance to find other authority during an overnight recess. The next morning, the defense cited J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), as authority for requiring a gender-neutral basis for peremptory challenges. However, defense counsel could not provide a copy of the case. The military judge granted a recess to allow the parties and himself to look for a copy of the ease, but in an overseas location with limited research materials available, neither the parties nor the judge could locate a copy. Thus, unable to read the holding of J.E.B., or any other case requiring a gender-neutral basis for peremptory challenges in courts-martial, the judge denied appellant’s request and did not require trial counsel to explain his challenge.

In J.E.B., the state used 9 of its 10 peremptory challenges to remove male jurors, while the respondent used all 10 of his peremptory challenges to remove women. The suit sought to establish respondent’s paternity and responsibility for child support. The Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment prohibits discrimination in jury selection on the basis of gender, or' on the assumption that an individual will be biased in a particular case solely because that person happens to be a woman or a man. J.E.B., 511 U.S. at 145-46,114 S.Ct. at 1430.

The Court stated that, as with race-based claims under Batson, the party alleging gender discrimination must make a prima facie showing of intentional discrimination before the party exercising the challenge is required to explain the reason for the strike. Batson, 476 U.S. at 97, 106 S.Ct. at 1723. The explanation “need not rise to the level of a ‘for cause’ challenge; rather, it must merely be based on a juror characteristic other than gender, and the proffered explanation may not be pretextual.” J.E.B., 511 U.S. at 145, 114 S.Ct. at 1430. The Court said that “failing to provide jurors the same protection against gender discrimination as race discrimination could frustrate the purpose of Batson. Because gender and race are overlapping categories, gender can be used as a pretext for racial discrimination.” Id. The Court applied this rule to potential jurors in both civil and criminal trials, and spoke in terms of “the right of jurors, as well as litigants, to have an equal protection right, under the Fourteenth Amendment to the Constitution, to jury selection procedures that are free from state-sponsored group stereotypes rooted in, and reflective of, his[507]*507torical prejudice.” J.E.B., 511 U.S. at 128, 114 S.Ct. at 1421 (citations omitted).

We now face the question of the extent to which J.E.B. can or should be applied to trial by courts-martial. While a trial by court members has some attributes similar to a trial by jury, courts-martial have never been considered subject to the jury-trial demands of the Sixth Amendment of the Constitution. Ex parte Quirin, 317 U.S. 1, 40, 63 S.Ct. 2, 16-17, 87 L.Ed. 3 (1942); United States v. McClain, 22 M.J. 124, 128 (C.M.A1986). The convening authority appoints members to courts-martial following the statutory requirement that he select those officers best qualified for court-martial duty by reason of age, education, training, experience, length of service, and judicial temperament. Article 25(d)(2), UCMJ, 10 U.S.C. § 825(d)(2).

This is conceptually much different than the jury selection process, where a venire is normally produced at random from voting registration or property tax records and then reduced substantially through an extensive number of peremptory challenges.

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Bluebook (online)
46 M.J. 501, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-ruiz-afcca-1997.