United States v. White

Appellant was a recruiter. A special court-martial composed of officer and enlisted members convicted him, contrary to his pleas, of conspiracy to effect a fraudulent enlistment and two specifications of effecting fraudulent enlistments, in violation of Articles 81 and 84, Uniform Code of Military Justice, 10 USC §§ 881 and 884, respectively.

The granted issue is:

WHETHER THE NAVY-MARINE CORPS COURT OF MILITARY REVIEW ERRED BY APPLYING A “GREAT DEFERENCE” STANDARD WHEN REVIEWING THE MILITARY JUDGE’S DENIAL OF APPELLANT’S CHALLENGES FOR CAUSE.

Three challenges for cause are at issue in this case: Major (Maj.) Santana, Captain (Capt.) Olsen, and Master Sergeant (MSgt.) Scott. Appellant challenged Maj. Santana on two grounds: (1) he was the “reporting senior” of another court member, Gunnery Sergeant (GSgt.) Simmons, and thus responsible for evaluating his duty performance; and (2) his duties as Public Affairs Officer had exposed him to the convening authority’s view on fraudulent enlistment, including the convening authority’s “interest in the outcome of” appellant’s case.

The voir dire of Maj. Santana included the following:

Q. [Trial counsel] And, sir, the fact that you are his reporting senior, would that, in any way, shape or form, [a]ffect your ability to render a fair and impartial decision, no matter what position he takes in the deliberation room?

A. [Maj. Santana] None whatsoever. He has got a mind of his own.

[Trial counsel] Thank you, sir. I have no further questions.

[Military judge] In fact, Major, I will be instructing you later on, if you remain on the court, that you may not use your rank or superiority in any way to impinge on the independence of any of the juniors, including Gunnery Sergeant Simmons. Do you think that you will be able to follow that direction?

[Maj. Santana] Very much so. Regarding Maj. Santana’s duties as Public Affairs Officer, defense counsel questioned him as follows:

Q____ Sir, the question has already been asked, but I just want to clarify in my own mind, have you heard any allegations about Staff Sergeant White in reference to this case?

A. No. I have never heard of him, or the case.

Q. Sir, have you ever had an occasion in the hallways at District to overhear small talk or anything about the frauding of someone in?

A. About what?

Q. Frauding someone in, sir, fraudulent enlistments in general, sir?

A. I have heard the Director talking about fraudulent enlistments, but in a very general nature. Not anything beyond that that I am aware of.

Q. That would be Colonel Lilly, sir?

A. Yes.

Q. What did the Colonel say, do you recall?

A. He had requested some, I think during the Pittsburgh incident, he had requested me to clip some articles and forward them to him; anything that had to do with the Pittsburgh incident or fraudulent enlistment per se. That was about it. I would just clip the articles and send them up.

Q. Did you ever hear the Colonel express an opinion about the Pittsburgh affair?

A. About what?

Q. The Pittsburgh affair, sir?

A. Not per se, no. I don’t recall anything special.

Q. The Colonel never had any discussions with you, or any other staff members about fraudulent enlistments at 6th Marine Corps District?

A. (Pause.) I am trying to recall. The conversations that I would always hear, when we were traveling through the Recruiting Stations, I think were of a positive nature, how you should do things right. I don’t recall ever getting into fraudulent enlistments per se. In the monthly comments that he puts in the Dixie Digest Magazine, it has always been “these are the things that you should be doing.” Fraudulent enlistments per se, I don’t think, were singled out.

Q. Sir, have you ever heard the Director talk about a specific fraudulent case at 6th Marine Corps District?

A. No.

Appellant challenged Capt. Olsen because he had “an intimate knowledge of how a recruiter works, quality control; and he has been schooled in those areas and would bring his expertise ... to the outcome of this court.” Capt. Olsen was questioned by the military judge regarding his particular expertise as follows:

Q. Captain, you indicated that you may have some background information, having received some training in this area. Would you be able to, first of all, decline from using your expertise in this area, from imposing that upon the other members? Now, there is nothing wrong with bringing in your own experience and background, but you would not be able to use that background to lecture, or add evidence and facts, not before you in court. Do you understand that?

A. Yes, sir.

Q. Would you be able to follow that direction?

A. Oh, yes, sir.

Q. And, would you be able to base your findings; and, if necessary, sentence, based on just what comes into evidence in this trial?

A. I don’t see any problems with that at all, sir.

Appellant challenged MSgt. Scott because he had audited the recruiting substation where the offenses allegedly took place and had lunch on the day of the trial with Capt. Sinnott, a government witness and the executive officer of appellant’s recruiting substation. MSgt. Scott was questioned by trial counsel as follows:

Q. And, how is it that you know Captain Sinnott?

A. As the Comptroller Chief, I am required to go out and inspect the Accounting Records of all R.S.’s [recruiting stations]. Captain Sinnott was the Executive Officer of R.S. Montgomery. I inspected his accounts, sir.

Q. On a number of occasions, on a quarterly basis?

A. Semi-annual, sir.

Q. And, how long have you been with the 6th Marine Corps. District, in that capacity?

A. Three and a half years, sir.

Q. So, I assume that on at least six occasions you audited Captain Sinnott?

A. Yes, sir, at least six occasions.

Q. And, that relationship that you had with Captain Sinnott was strictly on a professional basis?

A. Yes, sir.

Q. Now, based on that professional relationship that you have had with Captain Sinnott over the last three years, would you be more inclined to give greater weight and deference of his testimony vis-a-vis any other witness that might appear before this court?

A. No, sir.

Defense counsel then questioned MSgt. Scott as follows:

Q. Master Sergeant Scott, I was at lunch today, and I believe I saw you eating lunch with Captain Sinnott?

A. Yes, sir, that is correct.

Q. Sir, did you have an occasion to discuss any of today’s case—

A. No, sir. The only thing that we discussed at lunch was Boy Scout activities which I am involved in here in Atlanta.

The military judge denied all three challenges, and the Court of Military Review upheld the military judge’s rulings, stating, “The military judge’s decision on the bias of the potential members is entitled to great deference on appeal and will not be reversed absent a clear abuse of discretion.” Unpub. op. at 4 (July 30, 1991). In United States v. Reynolds, 23 MJ 292 (CMA 1987), Judge Cox, writing for the majority, used similar language, stating:

The question of bias “is essentially one of credibility, and therefore largely one of demeanor.” Due to his superior position, the military judge’s determination of bias is entitled to great deference on appeal and will not be reversed absent a clear abuse of discretion. United States v. Deain, 5 USCMA 44, 17 CMR 44 (1954).

23 MJ at 294 (citation omitted). The court below cited this authority.

Deain made no mention of “great deference,” but the lead opinion by Chief Judge Quinn stated, “There must be a clear abuse of discretion in resolving the conflict before an appellate tribunal, which lacks the power to reweigh the facts, will reverse a decision.” 5 USCMA at 49, 17 CMR at 49. Judges Latimer and Brosman concurred in the result, analyzing the merits of the challenge for cause.

Judge Cox later wrote the principal opinion in United States v. Jobson, 31 MJ 117 (CMA 1990), in which he made no mention of “great deference” but simply said, “[W]e conclude that the military judge did not abuse his discretion in denying the challenge____” 31 MJ at 122. Chief Judge Sullivan concurred, while “disagree[ing] with any construction of [Judge Cox’s] opinion which would establish a ‘great deference’ standard.” 31 MJ at 122. Senior Judge Everett concurred in part and dissented in part, noting that the Court of Military Review had held that the challenge should have been granted but opining that the Court of Military Review “should give some weight to a determination by the military judge that a court-martial member is competent.” 31 MJ at 123.

Appellant argues that giving the military judge’s ruling on a challenge for cause “great deference” is inconsistent with the liberal-grant mandate underpinning the challenge procedure. The liberal-grant mandate was expressly set out in paragraph &2h (2) of the Manual for Courts-Martial, United States, 1951, and carried forward in paragraph 62h (2) of the Manual for Courts-Martial, United States, 1969 (Revised edition). RCM 912(f)(3), Manual for Courts-Martial, United States, 1984, does not contain an express statement of the liberal-grant mandate, but deletion of the express language was “not intended to change the policy expressed in that statement.” Drafters’ Analysis, 1984 Manual, supra at A21-54; United States v. Smart, 21 MJ 15, 18-19 and n. 1 (CMA 1985). See United States v. Glenn, 25 MJ 278, 279 (CMA 1987) (“Challenges for cause are to be liberally granted.”).

A trial court’s standard is to grant challenges for cause liberally. An appellate court’s standard is to overturn a military judge’s ruling on a challenge for cause only for a clear abuse of discretion. This means that military judges must follow the liberal-grant mandate in ruling on challenges for cause, but we will not overturn the military judge’s determination not to grant a challenge except for a clear abuse of discretion in applying the liberal-grant mandate.

“Great deference” is not a separate standard but, rather, is the reason for the standard. We give a military judge great deference because we recognize that he has observed the demeanor of the participants in the voir dire and challenge process. Because we give the military judge great deference, we will overturn his ruling on a challenge only if we find a clear abuse of discretion.

Based on the foregoing discussion, we are satisfied that the Court of Military Review applied the correct standard. We turn next to review the military judge’s rulings.

We hold that the military judge did not abuse his discretion by denying the challenge of Maj. Santana. Maj. Santana’s position as GSgt. Simmons’ superior and rater was not per se disqualifying. United States v. Blocker, 32 MJ 281 (CMA 1991). Both Maj. Santana’s and GSgt. Simmons’ responses during voir dire established that Maj. Santana would not attempt to influence GSgt. Simmons and that GSgt. Simmons would not allow Maj. Santana to influence him.

We likewise hold that the military judge did not abuse his discretion by denying the challenge of Capt. Olsen. Technical expertise is not automatically disqualifying. United States v. Towers, 24 MJ 143 (CMA 1987). This was not a case involving the technical intricacies of military recruiting; it involved a simple scam of enlisting otherwise ineligible recruits by providing them with bogus high school diplomas. Capt. Olsen’s responses disclosed no basis for disqualification for duty as a court member.

Finally, we hold that the military judge did not abuse his discretion by denying the challenge of MSgt. Scott. Although contact between witnesses and court members, even if innocent or inadvertent, gives rise to perceptions of unfairness, it is not automatically disqualifying. United States v. Elmore, 33 MJ 387, 392-94 (CMA 1991). In this case the voir dire disclosed in full the innocuous nature of the contact.

The decision of the United States Navy-Marine Corps Court of Military Review is affirmed.

Judges COX and CRAWFORD concur.