United States v. Sullivan

74 M.J. 448, 2015 CAAF LEXIS 724, 2015 WL 4937522
Court of Appeals for the Armed Forces·Decided August 19, 2015·No. 15-0186/CG·Published·Cited by 35 cases

Opinions

Judge OHLSON delivered the opinion of the Court.*

A general court-martial composed entirely of captains convicted Appellant, a captain in the United States Coast Guard with more than twenty-seven years of service, of wrongful use of cocaine in violation of Article 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a (2006). The court-martial panel had no flag officers1 because the convening authority categorically excluded all such officers from the member pool in violation of Article 26, UCMJ, 10 U.S.C. § 825. In addition, the military judge acknowledged that he had prior relationships, both professional and social, with a significant number of the court-martial participants, but he de-dined to disqualify himself from presiding over the trial.

We granted Appellant’s petition for review on the following two issues:

I. WHETHER THE GOVERNMENT CARRIED ITS BURDEN OF PROVING THAT THE CONVENING AUTHORITY’S CATEGORICAL EXCLUSION OF ALL FLAG OFFICERS WAS HARMLESS.
II. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN DENYING CHALLENGES FROM BOTH PARTIES TO HIS IMPARTIALITY BASED ON PRIOR PERSONAL RELATIONSHIPS WITH INDIVIDUAL MILITARY COUNSEL, THE ACCUSED, TRIAL COUNSEL, SEVERAL MEMBERS, SEVERAL WITNESSES, AND THE STAFF JUDGE ADVOCATE.

Upon analyzing these issues, we conclude that under the particular circumstances of the instant ease, the convening authority’s exclusion of flag officers from the member pool was harmless. We further conclude that the military judge’s decision not to disqualify himself did not constitute an abuse of discretion. Accordingly, we hold that Appellant is not entitled to relief.

I. BACKGROUND

In June 2008, Appellant tested positive for cocaine pursuant to a random urinalysis. Subsequent tests of Appellant’s hair confirmed the presence of cocaine. A general court-martial was convened and at trial Appellant claimed that his positive drug test stemmed from his wife’s admitted use of cocaine in their household. Contrary to his plea, however, the panel convicted Appellant of the cocaine use offense2 and sentenced him to a fine of $5,000 and a reprimand, which the convening authority then approved. The acting Judge Advocate General [450] of the Coast Guard (TJAG) referred this case to the United States Coast Guard Court of Criminal Appeals (CCA) for review pursuant to Article 69(d), UCMJ, 10 U.S.C. § 869(d). The CCA affirmed the findings and sentence.

II. SELECTION OF MEMBERS

A.Facts

The panel in Appellant’s case was selected from a ten-person venire that was composed entirely of captains who had served for at least twenty-seven years in the Coast Guard. Because of the omission of flag officers from the member pool, Appellant moved to dismiss his case for a violation of Article 26, UCMJ.

The military judge denied the motion because he was not convinced that “the convening authority’s effort to pick officers who might actually be able to serve on the court [was] improper.” He based this conclusion on the following findings: (1) the convening authority had been advised of the Article 26, UCMJ, selection criteria at least six times in writing and twice verbally; (2) the convening authority had determined that the flag officers were not available based on his “personal experience” and “general knowledge” of flag officers’ duties and schedules; (3) the convening authority had not inquired “into the availability of any particular flag officer”; and (4) the convening authority had not attempted to “stack the court with post-continuation” captains,3 but instead “was motivated by a desire to select members who” were qualified and who were available to “actually serve on the panel.” The military judge also found that the convening authority “did riot categorically exclude all flag officers [from] consideration.”

On appeal the CCA concluded that the military judge clearly erred in finding that the convening authority had not categorically excluded flag officers from the venire panel, and further concluded that this exclusion violated Article 26, UCMJ. However, the CCA determined that the Government had established that this exclusion was harmless, and it otherwise adopted the military judge’s factual findings.

B. Standard of Review

We review “claims of error in the selection of members of courts-martial de novo as questions of law.” United States v. Bartlett, 66 M.J. 426, 427 (C.A.A.F.2008). We also conduct a de novo review to determine whether an error in member selection is harmless. See United States v. Ward, 74 M.J. 225, 227 (C.A.A.F.2015).

C. Discussion

The Government has not challenged the CCA’s holding that the convening authority’s categorical exclusion of flag officers from the member pool violated Article 25, UCMJ. See United States v. Kirkland, 53 M.J. 22, 24 (C.A.A.F.2000); United States v. Nixon, 33 M.J. 433, 435 (C.M.A.1991) (“Military grade by itself is not a permissible criterion for selection of court-martial members.”); see also Article 25(a), (d)(2), UCMJ. Appellant raises two theories for reversal because of this categorical exclusion: (1) the exclusion created an appearance of unfairness; and (2) the Government did not meet its burden of establishing the exclusion was harmless. We address each argument in turn.

First, there is no appearance of an unfair panel in this case. Although the convening authority deviated from the Article 25, UCMJ, criteria by categorically excluding flag officers from the venire panel, he provided Appellant with a venire of fellow senior captains who were fully qualified to sit on a court-martial panel. Indeed, we find no basis to conclude that the convening authority selected the members on any factors other than their “age, education, training, experience, length of service, and judicial temperament.” Article 25(d)(2), UCMJ. Further, the record provides no indication that these panel members failed to fully, carefully, and appropriately consider Appellant’s case in ar[451] riving at a verdict and sentence. Moreover, the convening authority’s motivation in ex-eluding flag officers from this case was not to stack the panel against Appellant. Father, the convening authority relied on his experience in concluding that the flag officers would not be available to actually sit on the panel and hear the case.4 United States v. Gooch, 69 M.J. 353, 358 (C.A.A.F.2011). Based on these circumstances, we conclude that there was no appearance of unfairness.

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United States v. Sullivan, 74 M.J. 448, 2015 CAAF LEXIS 724, 2015 WL 4937522 (Ark. 2015).

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