Petition for Writ of Certiorari — Pedro M. Bess, Petitioner v. United States

Supreme Court briefOct 9, 2020

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10 U.S.C. § 825

Art. 25. Who may serve on courts-martial

(a)

Any commissioned officer on active duty is

eligible to serve on all courts-martial for the trial of

any person who may lawfully be brought before such

courts for trial.

(b) Any warrant officer on active duty is eligible to

serve on general and special courts-martial for the trial

of any person, other than a commissioned officer, who

may lawfully be brought before such courts for trial.

(c)(1) Any enlisted member on active duty is eligible

to serve on a general or special court-martial for the

trial of any other enlisted member.

(2) Before a court-martial with a military judge and

members is assembled for trial, an enlisted member

who is an accused may personally request, orally on

the record or in writing, that—

(A) the membership of the court-martial be

comprised entirely of officers; or

(B) enlisted members comprise at least one-third

of the membership of the court-martial,

regardless of whether enlisted members have

been detailed to the court-martial.

(3) Except as provided in paragraph (4), after such a

request, the accused may not be tried by a general or

special court-martial if the membership of the courtmartial is inconsistent with the request.

(4) If, because of physical conditions or military

exigencies, a sufficient number of eligible officers or

enlisted members, as the case may be, is not available

to carry out paragraph (2), the trial may nevertheless

be held. In that event, the convening authority shall

make a detailed written statement of the reasons for

nonavailability. The statement shall be appended to

the record.

(d)(1) Except as provided in paragraph (2) for capital

offenses, the accused in a court-martial with a military

judge and members may, after the findings are

announced and before any matter is presented in the

sentencing phase, request, orally on the record or in

writing, sentencing by members.

(2) In a capital case, the accused shall be sentenced

by the members for all offenses for which the courtmartial may sentence the accused to death in

accordance with section 853(c) of this title (article

53(c)).

(3) In a capital case, if the accused is convicted of a

non-capital offense, the accused shall be sentenced for

such non-capital offense in accordance with section

853(b) of this title (article 53(b)), regardless of

whether the accused is convicted of an offense for

which the court-martial may sentence the accused to

death.

(e)(1) When it can be avoided, no member of an

armed force may be tried by a court-martial any

member of which is junior to him in rank or grade.

(2) When convening a court-martial, the convening

authority shall detail as members thereof such

members of the armed forces as, in his opinion, are

best qualified for the duty by reason of age, education,

training, experience, length of service, and judicial

temperament. No member of an armed force is eligible

to serve as a member of a general or special courtmartial when he is the accuser or a witness for the

prosecution or has acted as preliminary hearing officer

or as counsel in the same case.

(3) The convening authority shall detail not less

than the number of members necessary to impanel the

court-martial under section 829 of this title (article

29).

(f) Before a court-martial is assembled for the trial of

a case, the convening authority may excuse a member

of the court from participating in the case. Under such

regulations as the Secretary concerned may prescribe,

the convening authority may delegate his authority

under this subsection to his staff judge advocate or

legal officer or to any other principal assistant.

UNITED STATES,

Appellee

Pedro M. BESS, Hospital Corpsman Second

Class Petty Officer, United States Navy,

Appellant

United States Court of Appeals for the Armed Forces

October 23, 2019, Argued;

May 14, 2020, Decided

No. 19-0086

Prior History: Crim. App. No. 201300311. Military

Judge: Heather D. Partridge. United States v. Bess,

2018 CCA LEXIS 476 (N-M. Ct. Crim. App. Apr. 27,

2017).

For Appellant: Lieutenant Clifton E. Morgan III,

JAGC, USN (argued); Lieutenant Commander

William L. Geraty, JAGC, USN, and Lieutenant

Commander Jacob E. Meusch, JAGC, USN (on brief).

For Appellee: Lieutenant Kurt W. Siegal, JAGC,

USN (argued); Colonel Mark K. Jamison, USMC,

Captain Brian L. Farrell, USMC, and Brian K. Keller,

Esq. (on brief); Lieutenant Joshua C. Fiveson, JAGC,

USN.

Amicus Curiae for Appellant: Daniel S. Harawa,

Esq., Sherrilyn A. Ifill, Esq., Kerrel Murray, Esq.,

Janai S. Nelson, Esq., and Samuel Spital, Esq., for the

NAACP Legal Defense and Educational Fund, Inc. (on

brief).

Judges: Judge RYAN delivered the opinion of the

Court, in which Chief Judge STUCKY joined, and

Judge MAGGS joined, except as to Part II.B.1. Judge

MAGGS filed a separate opinion, concurring in part

and concurring in the judgment. Judge OHLSON filed

a dissenting opinion, in which Judge SPARKS joined.

Judge SPARKS filed a dissenting opinion, in which

Judge OHLSON joined.

Judge RYAN delivered the opinion of the Court.

Appellant’s original conviction was set aside for

legal error, and a rehearing was authorized. United

States v. Bess, 75 M.J. 70, 77 (C.A.A.F. 2016). The

convening authority then referred charges to a new

general court-martial. A panel of three officer and two

enlisted members, convicted Appellant, an X-ray

technician, contrary to his pleas, of two specifications

of indecent conduct in violation of Article 120,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. §

920 (2012),1 for his wrongful requirement that two

women undress during their respective X-ray

examinations. The court-martial sentenced Appellant

to be reduced to the grade of E-3, to be confined for one

year, and to be reprimanded. The convening authority

approved the adjudged sentence, and the United

States Navy-Marine Corps Court of Criminal Appeals

(NMCCA) affirmed the findings and sentence. United

States v. Bess, No. NMCCA 201300311, 2018 CCA

LEXIS 476, *33, 2018 WL 4784569, *12 (N-M. Ct.

Crim. App. Oct. 4, 2018).

The members acquitted Appellant of one specification of

indecent conduct and one specification of attempted indecent

conduct.

appeal,

Appellant

alleges

racial

discrimination and unlawful influence in the

convening authority’s selection of members. We

granted review to consider three issues:

Whether

the

convening

authority’s selection of members violated

the equal protection requirements of the

Fifth Amendment.

Whether

the

authority’s

selection

constituted

unlawful

influence.

II.

convening

members

command

Whether the lower court erred in

affirming the military judge’s denial of

Appellant’s motion to produce evidence

of the racial makeup of potential

members.

III.

We answer all three questions in the negative. While

racial discrimination is clearly unconstitutional,

absent intentional racial discrimination or an

improper motive or criteria in the selection of

members, the mere fact a court-martial panel fails to

include minority representation violates neither the

Fifth Amendment nor Article 37, UCMJ, 10 U.S.C. §

837 (2012)’s prohibition against unlawful command

influence. Additionally, Appellant’s oral discovery

request sought irrelevant information, thus the

military judge did not abuse her discretion by denying

it.

I. Background

In November 2016, immediately prior to

individual voir dire, while the members were not

present, Appellant’s individual military counsel

stated to the military judge: “The defense has noticed

that the panel is all white. . . . [O]ur client is AfricanAmerican, and there’s no African-American

representation on the panel.” Upon further

discussion, counsel refined his observation, stating: “I

may have misspoke and said that [the members] were

all Caucasian, and that might not be true. I am fairly

confident that there is no African-American on the

panel . . . .” The military judge responded:

I can’t speak to the racial makeup of

our panel. I agree with you that I don’t

see anyone who I think is obviously of

the same race as your client, but then

again, I would not have known,

frankly, that he is of the race he is,

absent reviewing materials of the

case

and

how

his

identification was made.

Trial defense counsel did not inquire about the

members’ races during individual voir dire. Following

individual voir dire, the military judge excused five

members at defense counsel’s request—three of which

requests the Government joined—leaving five

members on the panel.

In response to trial counsel’s request that he

explain the basis for his objection to the composition

of the panel, individual military counsel explained:

“[I]t’s . . . basically a combination of an Article 25

challenge and, I guess, it’s almost like a preventative

Batson challenge. If you don’t put any AfricanAmericans on the panel from the get-go, then you can’t

get a Batson challenge because nobody is getting

eliminated based on their race.” The military judge

rejected this challenge because of the “absen[ce] [of]

any evidence of anything inappropriate being done by

the convening authority in assembling the panel.”

Individual military counsel then made an oral

discovery request for a “statistical breakdown of the

population as far as race with respect to the convening

authority’s command.” The military judge denied the

request on the grounds the members’ questionnaires

noted their races and had been available for a week,

the request was untimely, acquiring the data would

be impracticable, and the resultant statistics were not

relevant absent evidence of impropriety or a pattern

of discrimination in other panels, which she had not

seen.

Responding to the first reason given by the

military judge, individual military counsel countered:

“If you look at the questionnaires, only some of them

have

racial

information

listed

upon

the

questionnaire.” The military judge noted this

response but did not change her ruling. In addition,

apparently responding to the military judge’s

statement that she had not seen any pattern of

discrimination, individual military counsel said:

Can I just make a quick record with the

last members panel that [the trial

counsel], myself, and you were on? We

had a different African-American

client, and also it was an all-white

panel. So, this is the second time in a

row that we’ve been on a case where the

same issue has occurred.

The military judge replied that she did not believe

that two examples evidenced a pattern.2 Appellant

never moved to stay the proceedings under Rule for

Courts-Martial (R.C.M.) 912(b) “on the ground that

members were improperly selected.”

2 Appellant and amicus NAACP now claim the same convening

authority detailed all-white panels in three other courts-martial

in which the accused was African American. Appellant first

introduced this allegation at the NMCCA—not at the courtmartial—through a declaration by the Executive Officer of

Defense Service Office Southeast. The declaration averred the

author sent a letter to the convening authority concerning the

racial diversity of members detailed in three recent cases

(described without further detail as “United States v. LTJG

Johnson,” “United States v. MMC Rollins,” and “United States v.

LTJG Jeter”). Without providing a foundation, the letter asserted

that in each of those courts-martial, the accused was African

American and all of the members were Caucasian. He did not

claim the convening authority knew the race of any member

detailed to those cases or intentionally excluded any person

because of race. Rather, he requested minority representation in

his client’s case. While it granted the motion to attach the

declaration, the NMCCA made no finding of fact as to the truth

of any matter alleged therein or the race of any panel member.

The declaration further avers that upon receiving the letter, the

convening authority amended the court-martial convening order

in LTJG Johnson’s case to include “one African-American, one

Hispanic-American, one Asian-American, one Native-American

and one Caucasian female member.”

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The record demonstrates that the convening

authority had reason to know that Appellant was

African American, as that information was included in

a report that summarized testimony from the

complaining witnesses. The record, however, contains

no evidence that the convening authority either

actually knew or had reason to know the races of the

members when he detailed them to Appellant’s courtmartial.3 As discussed infra Part II.C., none of the

members selected were from his command, and all

members confirmed during voir dire they neither

personally knew nor worked with the convening

authority. Moreover, only one member’s questionnaire

asked for the member’s race. That member checked a

box for “Caucasian.” The other members were not

asked, and did not provide, any information about

their races. Though he received the trial

questionnaires a week before trial, trial defense

counsel neither objected to the questionnaires nor

requested supplemental questionnaires.4

3 The

NMCCA found that, excepting the one member whose

questionnaire indicated race, there was “no evidence that the CA

knew the race of any of the . . . members detailed to the courtmartial” and “no reason to suspect that the CA personally knew

[the members] and would therefore have known their race.” 2018

CCA LEXIS 476, at *25, 2018 WL 4784569, at *10. The Courts of

Criminal Appeals have factfinding authority under Article 66,

UCMJ, 10 U.S.C. § 866 (2012); under Article 67, UCMJ, 10 U.S.C.

§ 867 (2012), we do not. See, e.g., United States v. Piolunek, 74

M.J. 107, 110 (C.A.A.F. 2015). Where, as here, a CCA’s findings

are neither clearly erroneous nor unsupported by the record, this

Court defers to those factual findings. United States v. Tollinchi,

54 M.J. 80, 82 (C.A.A.F. 2000).

4 In his initial written discovery request, Appellant requested the

Government produce “Panel Selection” information, including

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After the trial, Appellant’s counsel submitted a

request for clemency to the convening authority,

asserting that “[b]ased on Batson principles, the

military judge should have required the Convening

Authority to articulate the non-race based reason for

excluding all African-Americans, but [the military

judge] did not. This was prejudicial error.”5 The

court-martial member questionnaires responsive to the items

listed in R.C.M. 912(a)(1), which includes race, “all written

matters provided to the convening authority concerning selection

of the members detailed to the court-martial” under R.C.M.

912(a)(2), and “all information known to the government as to the

identities of potential alternate and/or additional panel

members.” Appellant never followed up on these requests,

despite filing a supplemental discovery request “highlight[ing]

material discovery yet to be delivered” and, later, a motion to

compel “discovery which is material to the preparation of the

defense.” The only material in the record responsive to discovery

requests regarding the panel is the member questionnaires, but

the defense never presented the other requests to the military

judge as R.C.M. 912 permits.

5 Appellant also raised this argument to the military judge, and

the NMCCA. 2018 CCA LEXIS 476, at *23–24, 2018 WL

4784569, at *9. In his briefing to this Court, Appellant urges a

“workable process” outside of Article 25, UCMJ, 10 U.S.C. § 825

(2012), wherein:

First, the defense identifies that the panel does

not include any members from the same

cognizable racial group as the accused and

raises the issue with the military judge before

the members are empaneled, requesting to have

the convening authority detail additional

members of the same race as the accused. The

military judge, after appropriately inquiring

into the matter, then adjourns the voir dire

proceedings so that the convening authority

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convening authority denied relief, approving the

findings and sentence. The NMCCA affirmed. 2018

CCA LEXIS 476, at *33, 2018 WL 4784569, at *12.

The NMCCA found the military judge erred in

declaring that the defense objection was untimely and

that she was mistaken about the content of the

questionnaires, but concluded she did not abuse her

discretion. The NMCCA found that the requested data

was “irrelevant” because trial defense counsel had

asked for the racial makeup of the convening

authority’s “command” instead of the convening

authority’s “pool of available members,” and no

members were selected from the convening authority’s

command. 2018 CCA LEXIS 476, at *22, 2018 WL

4784569, at *8. The NMCCA also rejected the claim of

unlawful command influence, citing a lack of evidence

concerning the convening authority’s knowledge of the

can be notified. Finally, upon notification, the

convening authority . . . either details

additional members on the basis of race for the

purpose of inclusion or provides a race-neutral

reason for declining to do so.

Reply Brief for Appellant at 6–7, United States v. Bess, No. 190086 (C.A.A.F. July 29, 2019) (emphasis added). There is no

procedure to ensure a particular racial composition in any court

in the United States, and, as discussed infra Part II.A., the legal

precedent is to the contrary. While the process is both different

than its civilian counterpart and the subject of numerous

appeals, if what Appellant seeks is an extraconstitutional and

radical overhaul of Article 25, UCMJ, and the member selection

system in the military—a system that has been in place for a very

long time—his suggestions are better addressed to Congress. No

one has challenged the constitutionality or soundness of Article

25, UCMJ, and we decline to judicially craft a rule encroaching

on Congress’s legislative province.

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races of members detailed to the court-martial. 2018

CCA LEXIS 476, at *25–27, 2018 WL 4784569, at *9–

10. Additionally, the NMCCA found no precedent to

extend United States v. Batson, 476 U.S. 79 (1986), to

the convening authority’s selection of members and

held the mere absence of African Americans on the

panel did not demonstrate systematic exclusion. 2018

CCA LEXIS 476, at *23–24, 2018 WL 4784569, at *9.

II. Discussion

The issues in this case are relatively

straightforward. Appellant’s complaint at trial rested

on his supposition that the court-martial didn’t

include members of his race; his complaints on appeal

allege violations of the Due Process Clause of the Fifth

Amendment and Article 37, UCMJ, because he

objected to the panel composition and no action was

taken. Moreover, Appellant appears to believe that

the fact a court-martial panel doesn’t include

members of an accused’s race remedies deficient

requests for irrelevant discovery at trial, or otherwise

entitles an accused on appeal to further factfinding at

a DuBay6 hearing. His arguments— both at trial and

now—have no support in the law for the reasons set

forth below.

A. The Fifth Amendment

Appellant argues that

the convening

authority’s selection of members violated the Fifth

Amendment’s implicit guarantee of equal protection of

6 United States v. DuBay, 17 C.M.A. 411, 37 C.M.R. 411 (1967).

14a

the laws. We review this question of law de novo. See

United States v. Riesbeck, 77 M.J. 154, 162 (C.A.A.F.

2018).7

The sole basis for Appellant asserting a

constitutional violation at trial was his claim that

there were no African American members included on

his court-martial panel and one other. There are

several logical flaws with this. First, because the

questionnaires did not have this information, and

because Appellant declined to inquire into the races

during voir dire, we don’t know with certainty what

race any member save one identifies as. Second, there

is no constitutional or statutory right to have

members of your own race (or any other) included on

either a court-martial panel or a civilian jury. See

Powers v. Ohio, 499 U.S. 400, 404 (1991). And third,

there is precisely zero evidence that this convening

authority knew or had reason to know the race of the

persons he detailed to the court-martial or engaged in

any impropriety.

What the Fifth Amendment provides is not a

promise to include, but rather protection against

intentional racial discrimination through exclusion.

Cf. Flowers v. Mississippi, 139 S. Ct. 2228, 2242 (2019)

The Government asserts that we should review the Fifth

Amendment issue for plain error because Appellant at trial did

not specifically argue that a racial group was systematically

excluded from his court-martial panel in violation of the

standards set forth in Castaneda v. Partida, 430 U.S. 482 (1977).

We conclude that Appellant’s citation of Batson, 476 U.S. 79, and

reference to a possible pattern of discrimination in recent cases

adequately preserved his Fifth Amendment arguments.

15a

(“Equal justice under law requires a criminal trial free

of racial discrimination in the jury selection process.”);

Batson, 476 U.S. at 93 (“As in any equal protection

case, the burden is, of course, on the defendant who

alleges discriminatory selection of the venire to prove

the existence of purposeful discrimination.” (internal

quotation marks omitted) (citation omitted)); United

States v. Santiago-Davila, 26 M.J. 380, 390 (C.M.A.

1988) (Fifth Amendment equal protection includes the

“right to be tried by a jury from which no ‘cognizable

racial group’ has been excluded.” (quoting Batson, 476

U.S. at 96)).

Neither in civilian courts nor in a court-martial

does the Fifth Amendment guarantee an accused

jurors or members who are of the same race. See, e.g.,

Powers, 499 U.S. at 404; Batson, 476 U.S. at 85; Taylor

v. Louisiana, 419 U.S. 522, 538 (1975); Virginia v.

Rives, 100 U.S. 313, 323 (1879); United States v.

Adkinson, 916 F.3d 605, 609 (7th Cir. 2019); Sanchez

v. Roden, 753 F.3d 279, 290 (1st Cir. 2014); United

States v. Mitchell, 502 F.3d 931, 952 (9th Cir. 2007);

Lowery v. Cummings, 255 F. App’x 409, 420 (11th Cir.

2007); United States v. Brooks, 161 F.3d 1240, 1246

(10th Cir. 1998); United States v. Steen, 55 F.3d 1022,

1030 (5th Cir. 1995).

An accused has an absolute right to a fair and

impartial panel, guaranteed by the Constitution and

effectuated by Article 25, UCMJ’s member selection

criteria and Article 37, UCMJ’s prohibition on

unlawfully influencing a court-martial. See also

Riesbeck, 77 M.J. at 163. Neither of those articles

requires affirmative inclusion. Rather, Article

25(d)(2), UCMJ, provides in relevant part: “When

16a

convening a court-martial, the convening authority

shall detail as members thereof such members of the

armed forces as, in his opinion, are best qualified for

the duty by reason of age, education, training,

experience, length of service, and judicial

temperament.” Race is not one of the criteria.8 And by

its terms, Article 37(a), UCMJ, expressly prohibits the

convening authority from selecting members in an

attempt to influence the outcome of the court-martial,

on the basis of race or otherwise. See infra Part II.C.

Of course, if a convening authority, in selecting

the members to detail to a court-martial, intentionally

excluded potential members on the basis of race, the

convening

authority’s

actions

would

unconstitutional. But that is entirely different than a

8 This Court has held, however, that the convening

authority

may consider race in detailing members if that consideration

serves “deliberately to include qualified persons,” rather than to

exclude members based on race. United States v. Crawford, 15

C.M.A. 31, 41, 35 C.M.R. 3, 13 (1964); see also Riesbeck, 77 M.J.

at 163 (Crawford allows a convening authority to “seek[] in good

faith to make the panel more representative of the accused’s race

or gender”). Even these decisions are constitutionally

problematic in some sense, given that they seemingly stem from

some notion that an accused “has a better chance of winning if

more members of his race are on the jury. But that thinking

relies on the very assumption that Batson rejects: that jurors

might be partial to the defendant because of their shared race.”

Flowers, 139 S. Ct. at 2270 (Thomas, J., dissenting) (internal

quotation marks omitted) (citation omitted); see also Castaneda,

430 U.S. at 499 (“Because of the many facets of human motivation,

it would be unwise to presume as a matter of law that human

beings of one definable group will not discriminate against other

members of their group.”). In any event, “may” does not equate

to “must.”

17a

mere failure to include, which is what Appellant

complained of at trial, and which many courts, see

supra, including our Court in United States v. Loving,

found insufficient to support a Fifth Amendment

claim. 41 M.J. 213, 285 (C.A.A.F. 1994) (“A prima facie

case of systematic exclusion is not established by the

absence of minorities on a single panel.”).

B. Request to Extend Batson and Apply Castaneda

Nevertheless, on appeal Appellant now urges

us to apply the frameworks of either Batson or

Castaneda to find that the absence of African

Americans on his panel constitutes an equal

protection violation. We decline this invitation.

Batson held that, under the Equal Protection

Clause, peremptory strikes of an African American

from the jury venire may establish a prima facie case

of purposeful discrimination, and once that prima

facie case is established, the burden shifts to the

government to provide a race-neutral explanation for

the strike. 476 U.S. at 96–97.

Just as the Equal Protection Clause

forbids the States to exclude black

persons from the venire on the

assumption that blacks as a group are

unqualified to serve as jurors, so it

forbids the States to strike black

veniremen on the assumption that they

will be biased in a particular case

simply because the defendant is black.

18a

The core guarantee of equal protection,

ensuring citizens that their State will

not discriminate on account of race,

would be meaningless were we to

approve the exclusion of jurors on the

basis of such assumptions, which arise

solely from the jurors’ race.

Id. at 97–98. The Court’s holding further took into

account the fact that peremptory strikes may “permit

those to discriminate who are of a mind to

discriminate,” id. at 96 (internal quotation marks

omitted) (citation omitted), and previous cases

imposed too high a bar by requiring proof of repeated

racial strikes outside of the defendant’s particular

case, id. at 92–93. Recognizing the truism that “the

Constitution prohibits all forms of purposeful racial

discrimination in selection of jurors,” id. at 88, the

Court distilled from its broad discussion of equal

protection principles the narrow conclusion that “a

defendant may establish a prima facie case of

purposeful discrimination in selection of the petit jury

solely on evidence concerning the prosecutor’s exercise

of peremptory challenges at the defendant’s trial.” Id.

at 96.

Batson procedures do apply in the military

justice system when a party makes a peremptory

challenge, Santiago-Davila, 26 M.J. at 389–90, but the

narrow terms of Batson’s holding neither compel nor

impel us to extend it to a convening authority’s

selection of members, the manner of which Article 25,

UCMJ, limits and directs, even if his supposition

about the race of his panel’s members was an

established fact. Nor does Appellant cite any

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precedent that would require extending Batson’s

holding outside the context of peremptory challenges.

Indeed, the only extensions of Batson have been

within the peremptory strike context itself. See

Flowers, 139 S.

Ct.

2243

(recognizing

application to gender discrimination, criminal

defendant’s peremptory strikes, and civil cases).9

Castaneda is not so limited in scope.

Nevertheless, even if Castaneda’s framework for

addressing systematic discrimination in the selection

of grand jurors could be extended to a convening

authority’s selection of court-martial members, it

would not change the outcome in this case. There, in

evaluating a prisoner’s claim alleging systematic

discrimination against Mexican Americans in the

selection of members of the grand jury that indicted

him, 430 U.S. at 485–86, the Supreme Court held that

there is a three-step process for making a prima facie

showing that a procedure employed for selecting

grand jurors violates the Equal Protection Clause. Id.

at 494. The Supreme Court explained:

The first step is to establish that the

group is one that is a recognizable,

9 Other federal and state courts have held that Batson should not

be extended to other contexts. See, e.g., United States v. Elliott,

89 F.3d 1360, 1364–65 (8th Cir. 1996) (“Batson applies only to

peremptory strikes. We know of no case that has extrapolated the

Batson framework to for-cause strikes.”); State v. Gould, 142 A.3d

253, 261 (Conn. 2016) (“[T]he Batson framework has been limited

to peremptory challenges.”).

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distinct class, singled out for different

treatment under the laws, as written or

as applied. Hernandez v. Texas, 347 U.S.

[475, 478–479 (1954)]. Next, the degree

of underrepresentation must be proved,

by comparing the proportion of the group

in the total population to the proportion

called to serve as grand jurors, over a

significant period of time. Id. at 480. . . .

Finally, . . . a selection procedure that is

susceptible of abuse or is not racially

neutral supports the presumption of

discrimination raised by the statistical

showing. Washington v. Davis, 426 U.S.

[229, 241 (1976)]; Alexander v.

Louisiana, 405 U.S. [625, 630 (1972)].

Id.10

We have not determined whether and how

Castaneda applies in the military justice system

where specific criteria for selecting members exist, see

Article 25, UCMJ, none of which are race, and where

deployments and other factors would likely skew a

straight percentage comparison. Yet, in Loving, we

ruled that the absence of minorities on a single courtmartial panel does not make out a prima facie case of

systematic exclusion. 41 M.J. at 285. To support this

rule, we noted that a prima facie case of

underrepresentation was established in Castaneda

“by comparing [the] population ‘to the proportion

Though Castaneda itself dealt with grand jurors, its

framework applies to petit jury venires as well. See Batson, 476

U.S. at 94.

21a

called to serve . . . over a significant period of time.’”

Id. (internal quotation marks omitted) (quoting

Castaneda, 430 U.S. at 494). In particular, that

prisoner presented statistics, which the government

did not contest, showing that 79.1% of his county’s

population was Mexican American, but that over an

eleven-year period, only 39% of grand jurors in the

county were (or appeared to be) Mexican American.

Castaneda, 430 U.S. at 486–87.

Were Castaneda to apply—however imperfectly

given the unique characteristics of the military justice

system—we need decide nothing more than that

Appellant fails to meet the second prong of Castaneda.

Appellant and the amicus NAACP have proffered

allegations that within a one-year period, the

convening authority detailed all-white panels in four

cases. Even if mere allegations constitute competent

evidence (and we do not believe they do), one year is

not a “significant period of time” and would not

establish a prima facie case under the Castaneda

framework. See, e.g., Hobby v. United States, 468 U.S.

339, 341 (1984) (seven years was significant period);

Castaneda, 430 U.S. at 487 (eleven years was

significant period); United States v. Quinones, No. 9310751, 1995 U.S. App. LEXIS 1635, at *30–31, 1995

WL 29500, at *10–11 (9th Cir. Jan. 25, 1995)

(unpublished) (one year of data insufficient); Ramseur

v. Beyer, 983 F.2d 1215, 1233 (3d Cir. 1992) (two years

was not significant period); Bryant v. Wainwright, 686

F.2d 1373, 1377–78 (11th Cir. 1982) (minor statistical

variations over five-year period insufficient).11 What

Of note, Castaneda itself involved a process wherein the

22a

we said in Loving—that the absence of minorities on

a single panel does not make out a prima facie case of

systematic exclusion—is likewise true if there are

allegations concerning several panels over a short

period of time. See Bryant, 686 F.2d at 1379 (for grand

jury foreperson selection, “ten selections from a brief

three and one-half year period simply is not

sufficiently large to allow a meaningful statistical

comparison”); cf. Truesdale v. Moore, 142 F.3d 749,

756 (4th Cir. 1998) (“[A]llegations of statistical

disparity will not suffice to show a violation of the

Fourteenth Amendment where no discriminatory

purpose was afoot.”).

The case law makes clear that even if no

African American members were included in

Appellant’s case, a fact that is unknown, even when

combined with other anecdotal allegations raised by

the trial defense counsel and now amici and the

appellate defense counsel, it does not establish a

prima facie case of exclusion based on race. Rather, we

cleave to the ordinary rule that without contrary

indication, “the presumption of regularity requires us

to presume that [the convening authority] carried out

the duties imposed upon him by the Code and the

Manual.” United States v. Wise, 6 C.M.A. 472, 478, 20

authority selecting grand jurors turned over periodically: under

the “key man” system, the state district judge would appoint

three to five jury commissioners, those commissioners would then

select the pool of grand jurors, and the judge would then test their

qualifications. 430 U.S. at 484. The district judge who

impaneled the respondent’s grand jury was in charge for only two

and one-half years of the eleven-year period considered in that

case. Id. at 495–96.

23a

C.M.R. 188, 194 (1955); see also United States v. Scott,

66 M.J. 1, 4 (C.A.A.F. 2008) (applying a “presumption

of regularity” to the convening authority’s actions

(internal quotation marks omitted) (citation

omitted)). We thus presume the convening authority

acted in accordance with Articles 25 and 37, UCMJ,

here. The military judge stated that she had “not seen

any indication of any pattern of discrimination by

excluding minority members” in prior panels, or any

indication of impropriety by the convening authority.

Based on our review of the record and the pertinent

case law, we agree with the military judge.12

C. Unlawful Influence

Appellant also fails to show unlawful command

influence. We review such claims de novo. United

States v. Salyer, 72 M.J. 415, 423 (C.A.A.F. 2013).

Article 37(a), UCMJ, provides in relevant part: “No

person subject to this chapter may attempt to coerce

or, by any unauthorized means, influence the action of

a court-martial or any other military tribunal or any

member thereof, in reaching the findings or sentence

in any case.” Court stacking is a form of unlawful

command influence. Riesbeck, 77 M.J. at 165. For

actual unlawful command influence, the accused must

show beyond “mere . . . speculation”: (1) facts, that if

We reject Appellant’s suggestion that the military judge’s

denial of his discovery request “compound[ed] the prejudice” by

preventing him from producing evidence to support his equal

protection claim. As discussed below in Part II.D., the military

judge properly denied the request because it sought irrelevant

information and the request would not have furthered Appellant’s

equal protection or unlawful command influence claims.

24a

true, constitute unlawful command influence; (2) the

prior proceedings were unfair; (3) the unlawful

command influence caused the unfairness. United

States v. Biagase, 50 M.J. 143, 150 (C.A.A.F. 1999).

On one end of the spectrum are cases like

Riesbeck, where we found unlawful court stacking

because, inter alia, the record “paint[ed] a clear

picture of court stacking based on gender in an

atmosphere of external pressure to achieve specific

results in sexual assault cases,” the panel was

“seventy percent female, most of whom [were] victim

advocates,” the enlisted pool “was only thirteen

percent female,” and the impaneling authorities

thought it “‘very important’ to have a ‘large number of

women’” decide the case, 77 M.J. at 164, 166.

On the other end of the spectrum are cases like

United States v. Lewis, where we found no improper

motive when presented with a statistically high and

anomalous number of women on the panel given the

comparatively low number of women on panels over

the preceding three years at the same air force base.

46 M.J. 338, 339, 341–42 (C.A.A.F. 1997); see also id.

(bare numbers in unit strength report showing total

officers and enlisted members as well as how many

were women “d[id] not adequately reflect the pool of

individuals eligible and available to serve as court

members,” so did not evidence improper selection).

The paucity of evidence here is even greater than that

found to be deficient in Lewis.

The record shows the convening authority

neither knew nor had reason to know the races of nine

of the ten members whom he detailed to Appellant’s

25a

court-martial; it does not reveal with certainty the

actual racial makeup of Appellant’s panel; it contains

no findings of fact by the NMCCA with respect to

allegations regarding the races of members in other

courts-martial, and at most Appellant presents a

potential anomaly with a few cases within a short

period of time, with no evidence whatsoever of

intentional discrimination. Appellant fails to carry his

burden to show unlawful command influence by more

than mere speculation. With due respect to the

dissents, United States v. Bess,__M.J.____,____(5 n.5,

12) (Ohlson, J., with whom Sparks, J., joined,

dissenting) (C.A.A.F. 2020); id. at____(2) (Sparks, J.,

with whom Ohlson, J., joined, dissenting), the mere

absence of African Americans on Appellant’s panel

does not itself raise reasonable doubt as to the

procedure used to select his panel. See supra Part II.A.

Nor does Appellant show apparent unlawful

command influence—that “an objective, disinterested

observer, fully informed of all the facts and

circumstances, would harbor a significant doubt about

the fairness of the proceeding.” United States v. Boyce,

76 M.J. 242, 249 (C.A.A.F. 2017) (internal quotation

marks omitted) (citation omitted). A fully informed

observer would know the convening authority only

knew one member’s race, that no member knew or

worked with the convening authority, and—taking

the declaration at face value—the convening

authority was amenable to including diverse members

when asked to do so, which Appellant failed to do prior

to trial. Appellant presents no reasonable grounds for

“an objective, disinterested observer, fully informed of

all the facts and circumstances”—to include the legal

fact that no one is entitled to members of the same

26a

race in either a military or civilian court—to “harbor

a significant doubt about the fairness of the

proceedings.” Id. (internal quotation marks omitted)

(citation omitted).

D. Appellant’s Discovery Request

The third assigned issue is whether the

NMCCA erred in affirming the military judge’s denial

of the oral discovery request that Appellant made at

trial. We review a military judge’s ruling on a request

for production of evidence for an abuse of discretion.

United States v. Rodriguez, 60 M.J. 239, 246 (C.A.A.F.

2004). A military judge abuses her discretion when

her findings of fact are clearly erroneous or her ruling

is influenced by an erroneous view of the law. United

States v. Freeman, 65 M.J. 451, 453 (C.A.A.F. 2008).

A military judge also abuses her discretion when a

“decision . . . is outside the range of choices reasonably

arising from the applicable facts and the law.” United

States v. Criswell, 78 M.J. 136, 141 (C.A.A.F. 2018)

(internal quotation marks omitted) (quoting United

States v. Irizarry, 72 M.J. 100, 103 (C.A.A.F. 2013)).

An accused is entitled to production of “relevant

and necessary” evidence. R.C.M. 703(f)(1). Appellant

requested “a statistical breakdown of the population

as far as race with respect to the convening authority’s

command.” The military judge denied the request on

three grounds, and as noted supra Part I, the NMCCA

disagreed with her in part but upheld the denial for a

different reason, which is permissible. See Murr v.

Wisconsin, 137 S. Ct. 1933, 1949 (2017) (explaining

that a “judgment below . . . may be affirmed on any

ground permitted by the law and record”); United

27a

States v. Robinson, 58 M.J. 429, 433 (C.A.A.F. 2003)

(affirming a military judge’s denial of a motion to

suppress evidence where “the military judge reached

the correct result, albeit for the wrong reason”).

We agree with the NMCCA that the

information sought by Appellant was irrelevant

because, in fact, the information requested had little

to do with the available pool of members. We further

conclude that the information requested is not

relevant because it would do nothing to add to the

legal force of his observation at trial that he was

African American and it appeared the members were

not. Just as the bare population statistics in the unit

strength report in Lewis did “not adequately reflect

the pool of individuals eligible and available to serve

as court members,” 46 M.J. at 341–42, so too would

Appellant’s request here not produce relevant

information. In Lewis:

[w]ith respect to the officer members,

[the evidence did] not reflect how many

officers were ineligible or disqualified

because of their involvement in law

enforcement or the investigation of this

case, and it [did] not reflect how many

were unavailable because of absence

from the command or operational

duties. With respect to the enlisted

members, the defense evidence lack[ed]

the same information. In addition, it

fail[ed] to identify how many enlisted

airmen

were

presumptively

unqualified because they lacked the

28a

experience and maturity contemplated

by Article 25, UCMJ, 10 U.S.C. § 825.

Id. Appellant’s request for a racial breakdown of the

convening authority’s command suffers the same

shortcomings. First, the request covered only the

convening authority’s command, which is only a

subset of the total eligible pool of members. Second, a

racial breakdown alone does not reveal enough detail

to discern who would be eligible to serve on a panel.

As Lewis describes, far more factors bear on that

determination, see id., and that is the legally relevant

question.

Appellant’s argument is that although trial

defense counsel specifically asked for statistical

information concerning the convening authority’s

command, this was clearly meant to include everyone

whom the convening authority could detail to the

court-martial. Appellant asserts that trial defense

counsel’s broad meaning is discernible from the

military judge’s response that the discovery request

was impracticable.

We agree that the wording of any motion must

be understood in the context in which it was made,

especially an oral motion in the middle of a trial. See

R.C.M. 905(a). But in this case, Appellant’s argument

about what the context shows is unpersuasive.

Looking at the entire exchange, the most reasonable

understanding of Appellant’s request was that he was

seeking only the information that he asked for.

Moreover, even if he had received what he now says

he wanted, it would still do nothing to change the legal

29a

landscape.13 The military judge did not abuse her

discretion in denying Appellant’s oral discovery

request.

E. Appellant is Not Entitled to a DuBay Hearing

Finally, Appellant argues that, in the

alternative, he is entitled to a DuBay hearing. A

creature of judicial fiat rather than statute, see United

States v. Ginn, 47 M.J. 236, 243 (C.A.A.F. 1997);

United States v. Ingham, 42 M.J. 218, 224 (C.A.A.F.

1995), the DuBay hearing was created to permit an

accused to gather additional evidence and resolve

conflicting evidence where (1) an issue, such as

ineffective assistance of counsel, was discovered after

trial, see Ginn, 47 M.J. at 244, or (2) a request made

at trial was improperly denied, see United States v.

Riesbeck, No. 1374, slip op. at 1 (C.G. Ct. Crim. App.

Jan. 20, 2015). The goal in either case is to develop a

record so that the appellate court can resolve the

issues presented. United States v. Flint, 1 M.J. 428,

429 (C.M.A. 1976). But it is decidedly not the case that

a DuBay hearing is either necessary or warranted in

an instance, such as this case, where there was no

effort made at trial to develop a record on any relevant

The Castaneda framework and the unlawful influence

framework require a proffer of something more than statistical

disparity. As explained above, Appellant still fails the Castaneda

requirement of a comparison of the statistics over a significant

period of time, and the unlawful influence framework requires

some evidence of improper motive. In sum, the mere racial

composition of a court-martial, without more, does not make

discovery into the detailing process relevant and necessary.

30a

facts, and the claims on appeal rest on pure

speculation. Cf. Ingham, 42 M.J. at 224.

We have long held that where a post-trial claim

is inadequate on its face, or facially adequate yet

conclusively refuted by the record, such a hearing is

unnecessary. United States v. Campbell, 57 M.J. 134,

138 (C.A.A.F. 2002). “[T]he threshold triggering

further inquiry should be low, but it must be more

than a bare allegation or mere speculation.” United

States v. Johnston, 39 M.J. 242, 244 (C.M.A. 1994).

Because the appellant in Johnston showed “not a

scintilla of evidence” of unlawful command influence,

the Court declined to order a hearing. Id. at 244–45.

And that’s what we face in this case: “not a scintilla of

evidence” the convening authority even knew the race

of more than one person detailed to the panel or had

any malintent in exercising his duty under Article 25,

UCMJ. Moreover, the population statistics Appellant

now seeks would, as in Lewis, prove nothing.

This case differs from Riesbeck. There, defense

counsel at trial produced evidence that, inter alia, the

member questionnaires indicated each member’s

gender; the convening order was amended multiple

times to add women; the final panel had seven women,

five of whom were victim’s advocates; and defense

counsel produced the rosters of potential members.

United States v. Riesbeck, No. 1374, 2014 CCA LEXIS

946, at *7–11 (C.G. Ct. Crim. App. Aug. 5, 2014)

(unpublished). It similarly differs from cases like

United States v. Sales, where “there [was] a

reasonable probability that there would have been a

different result if the factual conflicts among the

affidavits were resolved in appellant’s favor”

31a

regarding his ineffective assistance of counsel claim.

56 M.J. 255, 258 (C.A.A.F. 2002). These cases

presented a dispute of material fact or otherwise

raised a reasonable possibility of a colorable claim

that could be developed through a DuBay hearing.

The record here does neither: only one questionnaire

indicated race; there is zero evidence that the

convening order was amended to add or remove

racially representative members for this particular

case;14 the record does not reflect with certainty the

actual racial composition of Appellant’s panel.

Appellant’s speculative assertions do not merit a

DuBay hearing.

And the military judge did not erroneously

deny Appellant’s opportunity to develop the equal

protection and unlawful command influence claims—

fully articulated only on appeal—which were

grounded in truth on nothing more than suppositions

about the racial composition of his panel. First, the

military judge properly denied his mid-voir dire oral

discovery request. See supra Part II.D. Second, while

Appellant did include a broader request for panel

selection information in an initial discovery request

and the record does not show what—beyond the

member questionnaires—he received in return, this

appeared not to concern Appellant at the time. See

supra note 4.

not

Appellant’s supplemental discovery request did

reiterate the request for panel selection

14 The single change to the convening order appears to be

only

in response to Appellant’s request for enlisted representation.

32a

information; Appellant’s subsequent motion to compel

did not ask for the information; the military judge

thus made no ruling with respect to the request for

panel selection information in that June 2016 request;

and Appellant did not assign any errors at this Court

or the NMCCA regarding that June 2016 discovery

request, see supra Part I; Bess, 2018 CCA LEXIS 476,

at *2–3, 2018 WL 4784569, at *1. Nor did Appellant

move to stay the proceedings on the ground that

improper selection criteria were used by the

convening authority. See R.C.M. 912(b)(1).

To the extent Appellant now seeks information

that was available yet neither requested nor pursued

at trial, Appellant has waived any right to further

exploration in a DuBay hearing. See United States v.

Curtis, 44 M.J. 106, 133 (C.A.A.F. 1996) (“If the

defense wanted to explore the convening authority’s

role and knowledge [in appointing members], they

could have raised this issue at trial. Because it was

not raised at trial, we hold that this issue was

waived.”).

III. Conclusion

The decision of the United States Navy-Marine

Corps Court of Criminal Appeals is affirmed.

33a

Judge MAGGS, concurring in part and concurring in

the judgment.

I concur in the judgment affirming the U.S.

Navy-Marine Corps Court of Criminal Appeals, and I

join all of the Court’s opinion except for Part II.B.1. In

Part II.B.1., Judge Ryan, joined by Chief Judge

Stucky, concludes that Appellant’s argument based

on Batson v. Kentucky, 476 U.S. 79 (1986), lacks

merit. I agree that Appellant’s argument lacks merit

but, as I explain below, my reasoning is different.

I. Analysis

Appellant makes two arguments advancing his

claim under the Fifth Amendment. One argument is

based on Castaneda v. Partida, 430 U.S. 482 (1977), a

decision concerning the selection of grand jurors.

Appellant acknowledges that “Castaneda is not a

perfect fit as precedent” given the differences between

court-martial panel selection and grand jury

selection. But Appellant argues that we should

adapt Castaneda’s analysis for deciding when courtmartial member selection violates the equal

protection guarantee implicit in the Fifth

Amendment. He asserts that, under Castaneda as

it should be adapted to the military justice system, he

has established a prima facie equal protection

violation by showing (1) that he is African American,

(2) that “African-Americans were not only excluded

from (and underrepresented on) the panel in [his]

case, but in a series of cases,” and (3) that “the

selection process set out in Article 25, UCMJ, is

susceptible to abuse due to the inherent subjectivity

involved.”

34a

In addressing Appellant’s argument, the Court

recognizes that “[w]e have not determined whether

and how Castaneda applies in the military justice

system.” The Court then decides that resolving these

constitutional issues is unnecessary because the

record does not establish one of the factual predicates

of Appellant’s argument. The Court explains: “Were

Castaneda to apply—however imperfectly given the

unique characteristics of the military justice system—

we need decide nothing more than that Appellant fails

to meet the second prong of Castaneda.” Put simply,

for reasons the Court demonstrates, the record does

not establish that African Americans in fact have

been excluded from panels for a significant period. I

agree with the Court’s restrained approach. There is

no need to decide how Castaneda might apply in the

military justice system when the facts do not present

the issue. See City of W. Covina v. Perkins, 525 U.S.

234, 244 (1999) (reasoning that when the record

“undermines the factual predicate for [an] . . .

argument . . . we need not discuss it further”).

Appellant’s other argument advancing his Fifth

Amendment claim is based on Batson, a case

concerning peremptory challenges to members of the

venire. Appellant recognizes that the Batson

precedent is also “not a perfect fit” in a case involving

a convening authority’s selection of panel members,

but he argues that the Court can use Batson as a

“guidepost.” Appellant contends that if (1) “the

defense identifies that the panel does not include any

members from the same cognizable racial group as the

accused” and (2) “raises the issue with the military

judge before the members are empaneled,” then the

equal protection principle in Batson requires the

35a

convening authority either to “detail[] additional

members on the basis of race for the purpose of

inclusion or provide[] a race-neutral reason for

declining to do so.”

In my view, the Court ought to address

Appellant’s Batson argument in the same restrained

manner that it addresses Appellant’s Castaneda

argument. Specifically, we need decide nothing more

than that the record does not establish the factual

predicate for Appellant’s proposed constitutional test.

For the reasons thoroughly explained by the Court, the

record in this case does not establish that the “panel

[did] not include any members from the same

cognizable racial group as the accused.”1 Accordingly,

we do not need and have no reason to decide the

important and difficult issues of whether or how

Batson hypothetically might apply to member

selection by the convening authority. For this reason,

I do not join Part II.B.1. of the Court’s opinion.

The conclusion that Appellant has not

established the factual predicate necessary for his

Batson argument raises the question whether we

should order a hearing pursuant to United States v.

1 I see no reason to question the good faith of Appellant and his

counsel in assuming that none of the panel members at his courtmartial was African American based on outward appearances.

But this Court cannot rely on this assumption in deciding this

case because nothing in the record provides a basis for concluding

that the assumption is correct. The military judge made no

finding as to the members’ races and explained that she was

uncertain of their races based on their appearances. She properly

refused to infer their races based on stereotypes.

36a

DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), to allow

Appellant to discover the race of each of the members

at his court-martial. Our decision in United States v.

Curtis, 44 M.J. 106 (C.A.A.F. 1996), on

reconsideration, 46 M.J. 129 (C.A.A.F. 1997), answers

this question. In Curtis, the appellant requested a

DuBay hearing to determine whether the convening

authority knew that he could have appointed a panel

of all enlisted members under Article 25, UCMJ, 10

U.S.C. § 825. 44 M.J. at 132. We rejected the request

for the DuBay hearing, explaining: “If the defense

wanted to explore the convening authority’s role and

knowledge, they could have raised this issue at trial.

Because it was not raised at trial, we hold that this

issue was waived.” Id. at 133.

The same conclusion follows here. The

inadequate record regarding the members’ races in

this case was not inevitable. Appellant could have

insisted, through a motion to compel, that all of the

questionnaires submitted to the members asked the

members to identify their races. See Rule for CourtsMartial

912(a)(1)(C)

(expressly

requiring

questionnaires to include this question upon the

request of defense counsel). Appellant, however, made

no such motion. Although Appellant timely requested

that trial defense counsel submit questionnaires to

each of the members the convening authority detailed

to his panel, he did not move to compel that all the

questionnaires include a question regarding the

member’s race. And even after Appellant had seen the

members detailed to his court-martial, and had raised

an issue about the composition of the panel, he gave

up a second opportunity to inquire about their races.

Both sides agreed at oral argument that trial defense

37a

counsel could have asked the members during

individual voir dire to identify their races, but trial

defense counsel did not do so. Because Appellant did

not avail himself of either of these opportunities to

determine the races of the members of his panel, he

has waived any right to further discovery regarding

the members’ races in a DuBay hearing.

II. Conclusion

For these reasons, I agree with the conclusion

in Part II.B.1. that Appellant’s Batson argument lacks

merit. But I would not resolve the legal questions of

whether or how Batson principles might apply to

member selection by the convening authority because

those questions are not presented by the facts. Given

that there is no majority view on those issues in this

case, they remain open for decision if the record in a

case ever properly presents them.

38a

Judge OHLSON, with whom Judge SPARKS joins,

dissenting.

The record before this Court unquestionably

compels the remand of this case for an evidentiary

hearing in order to ensure that Appellant’s courtmartial was not subject to the pernicious effects of

unlawful command influence, and to ensure that

Appellant’s constitutional right to equal protection

under the Fifth Amendment was not violated by the

impermissible exclusion of panel members on the

basis of race. Because the majority holds to the

contrary, I must respectfully dissent.

I. Unlawful Command Influence

Issue II in this case reads as follows: “Whether

the convening authority’s selection of members

constituted unlawful command influence.” United

States v. Bess, 79 M.J. 46 (C.A.A.F. 2019) (order

granting review). As we recently held in United States

v. Boyce, 76 M.J. 242, 248 (C.A.A.F. 2017), “[T]he

appearance of unlawful command influence [exists]

where an objective, disinterested observer, fully

informed of all the facts and circumstances, would

harbor a significant doubt about the fairness of the

proceedings.” Thus, it is necessary to begin an

analysis of this case by reviewing “all the facts and

circumstances” relevant to the issues before us.

The filings and the joint appendix reflect the following:



Appellant was an African American male who

was charged with sex-related offenses. His

39a

accusers were white females.



Appellant’s defense was mistaken identity

caused by difficulties with cross-racial

identification. Specifically, Appellant argued

that his white accusers confused him with a

different but similar-looking African American

male who also worked as an x-ray technician at

the hospital where the offenses occurred. Brief

for Appellant at 12–20, United States v. Bess,

No. 19-0086 (C.A.A.F. June 19, 2019).



As in all criminal cases in the military, the

commander who convened Appellant’s courtmartial personally selected the venire panel.

That is, he selected the pool of personnel from

which the court-martial panel members (i.e.,

the jurors) ultimately would be chosen. Thus, it

is essential to note that there was nothing

random about the selection of the venire panel

in this case. See Articles 22 and 23, Uniform

Code of Military Justice (UCMJ), 10 U.S.C. §§

822, 823 (2012).



As soon as the members of the venire panel

walked into the courtroom, Appellant observed

that each and every one of them appeared to be

white.1

In a request for clemency after Appellant’s conviction, trial

defense counsel described the scene in the courtroom as follows:

At the beginning of the trial, a white military

judge, asked a white bailiff, to call in the all-

40a



During voir dire, trial defense counsel

challenged the racial composition of the panel.

He pointed out to the military judge that all of

the panel members appeared to be white, and

he also noted that this was the second courtmartial in a row where the accused was African

American but all of the panel members

appointed by this particular convening

authority appeared to be white.2 Trial defense

white military venire panel. As the white

defense attorneys and the white prosecutors

stood at attention as the panel members filed

in, it was difficult to reassure HM2 Bess as he

leaned over to ask, “Why aren’t there any black

people?” This all-white panel would hear

evidence from the four complaining witnesses

in the case—each of them white.

2 In a sworn declaration written after Appellant’s court-martial

but included in the Joint Appendix to this case, Commander

Christopher W. Czaplak, JAGC, USN, the Executive Officer of

Defense Service Office Southeast, cited a letter he sent to the

Commander, Navy Region Mid-Atlantic, which stated in relevant

part:

There is an appearance in the Central Judicial

Circuit that race is being improperly

considered when selecting members for

General Court-Martial Convening Orders. In a

number of cases, most recently United States v.

HM2 Bess, United States v. MMC Rollins, and

United States v. LTG Jeter where defense

counsel have raised this issue, AfricanAmericans were convicted in the Central

Judicial Circuit by all-white panels. All of the

members detailed [by the convening authority]

41a

counsel characterized his motion “almost like a

preventative Batson challenge.”3

to the courts-martial of these accused were

Caucasian. By contrast, minority members

have been detailed to cases involving

Caucasian accused facing court-martial for

sexual assault . . . .

Further, an amicus brief submitted to this Court by the

NAACP Legal Defense & Educational Fund, Inc., states that

during the course of one year this particular convening authority

“detailed four all-white panels for four Black defendants charged

with sex-related offenses.” Brief of Amicus Curiae NAACP Legal

Defense & Education Fund, Inc., in Support of Appellant at 11,

United States v. Bess, No. 19-0086/ (C.A.A.F. June 28, 2019)

(emphasis added) [hereinafter Brief of Amicus NAACP]. Only

eighteen general courts-martial went to trial over that same

period. Id. (citing U.S. Navy Judge Advocate Gen.’s Corps,

Results of Trial, https://www.jag.navy.mil/news/ROT_2016.htm

(last visited June 14, 2019); U.S. Navy Judge Advocate Gen.’s

Corps, Results of Trial, https://www.jag.navy.mil/news/

ROT_2017.htm (last visited June 14, 2019)).

3 Trial defense counsel explained to the military judge what he

meant by a “preventative Batson challenge”:

If you don’t put any African-Americans on the

panel from the get-go, then you can’t get a

Batson challenge because nobody is getting

eliminated based on their race. It is almost as

though [the] command is preventing [African

Americans] from representation on the panel

so that [the prosecution] can avoid a Batson

challenge. . . .

....

42a



In furtherance of his motion, trial defense

counsel specifically asked the military judge to

give him the opportunity to discover the

“statistical breakdown of the population as far

as race with respect to the convening

authority’s command.” The military judge

denied the defense motion.



Appellant was subsequently convicted by the

panel members and sentenced to prison.

Based on these facts, would “an objective,

disinterested observer . . . harbor a significant doubt

about the fairness of the proceedings”? Boyce, 76 M.J.

at 248. In light of the current state of the record, the

answer is an unequivocal and emphatic, “Yes.”

Because of the grave and broad implications of

this matter, however, it is important that this Court

not prematurely reach any conclusions—or cast any

. . . With respect to the evidence and the

burden, with a Batson challenge, the burden

would be on the attorney challenging that

member to show evidence why they are

challenging that member but for the[ir] race, so

we would argue that, by avoiding a Batson

challenge, by not putting . . . AfricanAmericans on the panel, the same burden

should apply to the people [i.e., the convening

authority and those acting on behalf of the

convening authority] that didn’t put any

African-Americans on the panel.

43a

aspersions—regarding precisely what happened in

this, and similarly situated, cases. Simply stated, we

need more information. Accordingly, at this juncture

I merely seek to remand this case for a DuBay

hearing so that additional facts can be developed

and included in the record.4 DuBay, 17 C.M.A. at 147,

37 C.M.R. at 411.

Indeed, that is exactly what occurred in the

recent case of United States v. Riesbeck, 77 M.J. 154

(C.A.A.F. 2018), which also involved the issue of

unlawful command influence resulting from a

convening authority’s selection of court-martial

members. Specifically, in that case there were

allegations of “court stacking” because of the

disproportionately large number of females selected to

serve on the court-martial panel of a servicemember

charged with rape, and the court below “ordered a

post-trial hearing in accordance with DuBay . . . to

receive testimony and evidence regarding the

composition of Appellant’s court-martial panel.” Id. at

159–60, 163. Surely a DuBay hearing is similarly

reasonable, appropriate, and prudent in the instant

case.5 And yet, the majority inexplicably has chosen

to foreclose this basic and necessary avenue of inquiry.

Ordering a factfinding “DuBay hearing” is an often-used

practice in the military when information relevant to deciding an

issue before the Court is not “apparent on the face of the record.”

United States v. DuBay, 17 C.M.A. 147, 149, 37 C.M.R. 411, 413

(1967).

5 The types of questions that could be answered in the course of a

DuBay hearing are self-evident: Were there any African

Americans on the panel at Appellant’s court-martial? What was

44a

In concluding that no DuBay hearing is

necessary, the majority assumes—and rests its

holding on the conclusion that—“[t]he record shows

the convening authority neither knew nor had reason

to know the races of nine of the ten members whom

he detailed to Appellant’s court-martial.” But the

record reveals no such thing. In actuality, the record

is devoid of any information regarding what the

convening authority knew about the race of the

members he selected or how he selected those

the racial composition of the pool of potential panel members

from which the convening authority could have selected? Was the

convening authority aware of the race of the members he detailed,

either through personal knowledge or through documents or

other information presented to him? What was the process the

convening authority used in selecting members for Appellant’s

court-martial? Did the convening authority’s subordinate

commanders or the staff judge advocate (or other staff members)

screen potential panel members based on race, thereby

effectively excluding African Americans from the convening

authority’s consideration? How did the convening authority know

how to identify minority members to be added to a later courtmartial when that African American defendant similarly objected

to the original all-white panel? See United States v. Bess, M.J., (4

n.2) (C.A.A.F. 2020). In how many instances did the same

convening authority convene an all-white venire panel when the

accused was a member of a racial minority, and in how many

instances were these members of a racial minority accused of sexrelated offenses? If the answers responsive to the questions

above are supportive of Appellant’s position, can the convening

authority identify race-neutral reasons why he appointed allwhite panels in several cases where an African American was

accused of sex-related offenses?

45a

members for Appellant’s court-martial panel.

II. The Defense Discovery Motion

The majority’s decision to affirm the NavyMarine Corps Court of Criminal Appeals is

particularly surprising because even if we were to

remove our analysis of this case from an unlawful

command influence context and instead analyze it

simply as a mundane discovery motion, a remand for a

DuBay hearing still would be clearly warranted.6 This

conclusion is supported by the following points.

In essence, trial defense counsel was making an

oral discovery motion when he asked the military

judge to give him the opportunity to discover the

“statistical breakdown of the population as far as race

with respect to the convening authority’s command.”

The standard we use in reviewing a military judge’s

discovery ruling is an abuse of discretion. United

States v. Rodriguez, 60 M.J. 239, 246 (C.A.A.F. 2004)

(citing United States v. Breeding, 44 M.J. 345, 349

(C.A.A.F. 1996)). By definition, the military judge in

this case abused her discretion because her ruling on

the motion was grounded in her misunderstanding of

both the law and the facts. See United States v.

Graner, 69 M.J. 104 (C.A.A.F. 2010).

First, the military judge concluded that

Appellant’s

discovery motion was untimely.

6 Issue

III in this case reads as follows: “Whether the lower

court erred in affirming the military judge’s denial of Appellant’s

motion to produce evidence of the racial makeup of potential

members.” Bess, 79 M.J. at 47.

46a

Specifically, she stated:

[W]e’ve all had the members’

questionnaires for a week, and the race

that each member most strongly

identifies with is noted on the

questionnaires. If this was an issue

that you wanted to raise prior to now,

when we are in individual voir dire,

that would have been a more

appropriate time.

(Emphasis added.) Her reasoning, however, was

faulty—both factually and legally. The factual

assertion that the race of each member was noted on

the questionnaires was inaccurate. For unexplained

reasons, only one of the questionnaires listed race.

Moreover, as we noted in Riesbeck, Rule for CourtsMartial (R.C.M.) 912(b)(3) “provides an exception to

the requirement that a timely motion be made where

an objection is based on an allegation that the

convening authority selected members for reasons

other than those listed in Article 25, UCMJ.”7 77 M.J.

at 160 (emphasis added). Thus, the military judge was

wrong when she ruled that Appellant’s discovery

motion was untimely when he raised it during voir

dire.

7Article 25(e)(2), UCMJ, states in relevant part: “When convening

a court-martial, the convening authority shall detail as members

thereof such members of the armed forces as, in his opinion, are

best qualified for the duty by reason of age, education, training,

experience, length of service, and judicial temperament.” 10

U.S.C. § 825(e)(2).

47a

Second, the military judge erred in basing her

ruling on her unsubstantiated belief that obtaining

statistical information about Navy personnel would be

a difficult “feat,” stating that she had “no idea how the

command would go about accomplishing” this task.

There was no evidence adduced at the court-martial

which supported this contention that it would be

difficult to obtain the requested information, and in

fact, intuitively the opposite is true; the military is

very adept at tabulating data about its personnel and

that information is readily available.8 Therefore, the

military judge’s purported finding of fact was not

supported by the record and is an abuse of discretion.

See United States v. Gore, 60 M.J. 178, 185 (C.A.A.F.

2004).

Third, the military judge erred both factually

and legally when she ruled that the information

sought by trial defense counsel was irrelevant to his

claim that the convening authority had improperly

excluded African American servicemembers from the

court-martial panel. Specifically, the military judge

averred:

I don’t see, frankly, how it is relevant,

absent any evidence of impropriety. I

have sat on numerous panels and

observed members of other panels

while here, and I have not seen any

8 See, e.g., U.S. Navy

Demographic

Data,

https://www.navy.mil/strategic/Navy_Demographics_Report.pdf

(last visited on May 8, 2020).

48a

indication

any

pattern

discrimination by excluding minority

members.

To begin with, the military judge herself had

previously acknowledged that trial defense counsel’s

argument would be “slightly stronger” if he “knew

more information about the racial and statistical

makeup of the pool of members for that particular

convening authority.” Thus, she conceded that the

information was relevant. But then when trial defense

counsel requested that type of information in order to

support his argument, the military judge executed an

about-face and denied his request.

Further, in ruling on the discovery motion, the

military judge claimed she could not determine the

race of the members of the panel based on her

personal observations. However, at virtually the same

time she claimed that based on her personal

observations of other panels, she could determine

there was no pattern of discrimination based on the

race of the members. To put it charitably, these claims

are in tension with one another. Moreover, in making

these claims the military judge used her personal

observations—rather than in-court evidence—to find

the defense discovery request was not relevant. Again,

this constituted an abuse of discretion. See Gore, 60

M.J. at 185.

It is evident that relevant statistical

information regarding the convening authority’s

command would have been instrumental in

supporting—or refuting—Appellant’s claim that there

49a

had been an improper exclusion of members from the

court-martial panel on the basis of race. And yet, the

majority asserts that Appellant’s claim must fail

because the discovery motion at trial “covered only the

convening authority’s command, which is only a

subset of the total eligible pool of members.” The

majority’s concern is misplaced. In United States v.

Datz, 61 M.J. 37, 42 (C.A.A.F. 2005), this Court

properly noted that an oral motion or objection made

during a court-martial must be considered in context

to determine if the basis for the motion was

sufficiently clear to the military judge. Here, it was

clear to everyone at the court-martial exactly what the

defense was seeking—information that would help to

determine whether there was an improper exclusion

of members from the venire panel on the basis of race.

In light of the fact that trial defense counsel

already had noted that this was the second case in

which an African American servicemember accused of

a sex-related offense was tried by a hand-selected

panel that appeared to be all white, the military

judge’s blanket refusal to let trial defense counsel

simply “peer behind the curtain” at how the convening

authority had selected these panel members was an

abuse of discretion. Thus, contrary to the military

judge’s ruling, trial defense counsel should have been

permitted to obtain such information. Because the

military judge abused her discretion in deciding this

matter, the instant case should be remanded for a

DuBay hearing so that the information may now be

obtained.

50a

III. Appellant’s Constitutional Right to Equal

Protection Under the Fifth Amendment

Even standing alone, the two issues cited

above—i.e., Appellant’s unlawful command influence

claim and the military judge’s abuse of discretion in

resolving Appellant’s discovery motion—provide

compelling and conclusive reasons mandating the

remand of this case for a DuBay hearing. And that is

before I even have had the opportunity to address

Issue I, which serves as the very core of Appellant’s

claim; namely, whether the convening authority’s

selection of members violated his constitutional right

to equal protection under the Fifth Amendment.9

In Batson v. Kentucky, 476 U.S. 79 (1986), the

Supreme Court made the following observation:

More than a century ago, the Court

decided that the State denies a black

defendant equal protection of the laws

9 The majority characterizes Appellant’s Fifth Amendment claim

as one seeking “to have members of [his] own race . . . included on

. . . [his] court-martial panel.” Although trial defense counsel’s

initial objection stated, “[O]ur client is African-American, and

there’s no African-American representation on the panel,” he

later clarified that the basis for his objection was a “preventative

Batson challenge.” In doing so, trial defense counsel explained, “If

you don’t put any African-Americans on the panel from the getgo, then you can’t get a Batson challenge because nobody is

getting eliminated based on their race.” Thus, contrary to the

majority’s portrayal, Appellant’s claim is rooted not in a failure

to include African Americans on the panel, but in the possible

intentional exclusion of potential members on the basis of race.

51a

when it puts him on trial before a jury

from which members of his race have

been purposely excluded. Strauder v.

West Virginia, 100 U.S. 303 (1880).

That decision laid the foundation for

the Court’s unceasing efforts to

eradicate racial discrimination in the

procedures used to select the venire from

which individual jurors are drawn.

Id. at 85 (emphasis added).

Consistent with this line of jurisprudence, the

Supreme Court has unequivocally held that “the

systematic exclusion of [African Americans in the jury

selection process] is . . . an ‘unequal application of the

law.’” Castaneda v. Partida, 430 U.S. 482, 493 (1977)

(quoting Washington v. Davis, 426 U.S. 229, 241

(1976)). Similarly, the Supreme Court has held that

the equal protection component of the Due Process

Clause of the Fifth Amendment prohibits the United

States from engaging in governmental action that

“invidiously discriminat[es] between individuals or

groups.” Washington, 426 U.S. at 239. In United

States v. Santiago-Davila, this Court made clear that

this equal protection component of the Fifth

Amendment applies to the military, holding that the

“equal protection right to be tried by a jury from which

no ‘cognizable racial group’ has been excluded” applies

to courts-martial panels with the same force as it

applies to civilian juries. 26 M.J. 380, 390 (C.M.A.

1988) (quoting Batson, 476 U.S. at 96).

Although

Batson

holds

that

the

Equal

52a

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

challenges during voir dire. Batson, 476 U.S. at 89

(emphasis added). First, in Batson the Supreme Court

specifically noted that “the Constitution prohibits all

forms of purposeful racial discrimination in selection

of jurors.” Id. at 88 (emphasis added). Second, as noted

earlier, the Supreme Court in Batson tellingly

referred to the need “to eradicate racial discrimination

in the procedures used to select the venire from which

individual jurors are drawn.” Id. at 85 (emphasis

added). And third, it simply cannot be the state of the

law that the shield of the Fifth Amendment is strong

enough to protect an African American defendant

from the impermissible exclusion of panel members on

the basis of race during voir dire, but is impotent in

similarly protecting those servicemembers during the

selection of the venire panel in the first instance. Id. at

86.

The uniqueness of the role of the convening

authority in the military justice system underscores

the importance of this point. Unlike in the civilian

jury system, venire pools in the military are not

chosen at random from, for example, voter

registration rolls or Department of Motor Vehicles

databases.

Rather, a convening authority has significant

and broad discretion to detail to the court-martial

panel anyone who, “in his opinion, [is] best qualified

for the duty.” Article 25(e)(2), UCMJ. Accordingly, the

53a

convening authority “has the functional equivalent of

an unlimited number of peremptory challenges.”

United States v. Carter, 25 M.J. 471, 478 (C.M.A.

1988) (Cox, J., concurring) (emphasis added). Thus,

the fundamental equal protection principles espoused

in Batson must apply broadly to the entire juryselection process—to specifically include the

convening authority’s selection of the venire panel—

to ensure that the constitutional rights of accused

servicemembers are protected.10

In the instant case, Appellant properly and

In Castaneda, a case relied upon by the Batson court, the

Supreme Court outlined the process by which an accused could

make a prima facie showing of an equal protection violation in the

context of grand jury selection. 430 U.S. at 494–95. The second

step of the analysis requires an accused to prove the

underrepresentation of a cognizable racial group in the pool of

those called to serve as grand jurors “over a significant period of

time.” Id. at 494. The majority implies that Castaneda requires

an accused to produce data covering a lengthy number of years

before a court could intervene to halt pernicious racial

discrimination. However, the majority fails to explain how their

expansive time frame fits within the unique features of the

military justice system. Convening authorities serve in their

roles for a finite period of time, often for a few years or less. In

the instant case, for example, the convening authority served

from March 10, 2016, to July 20, 2018, for a total of just twentyseven months. Brief of Amicus NAACP, supra note 2, at 20. Thus,

under the majority's view of Castaneda, the constitutional right

to equal protection would be essentially unenforceable in the

military where a convening authority serves in that particular

role for less than a lengthy number of years—as happened in

Appellant’s case.

54a

timely sought to avail himself of his constitutional

rights by challenging the composition of the venire

panel during voir dire.11 And yet, the military judge

thwarted his efforts by improperly denying his

discovery motion. This Court must now remedy this

error, and can begin doing so by simply remanding

this case for an evidentiary hearing so that the facts

can be gathered that will either expose and rectify an

invidious pattern of racial discrimination in the

member-selection process, or reveal Appellant’s courtmartial to be a mere “anomaly . . . with no evidence

whatsoever of intentional discrimination.” Bess, M.J.

at (15) (C.A.A.F. 2020). Only then can we be assured

that Appellant’s constitutional rights have been

protected.

11 The majority faults Appellant for failing to ask the convening

authority to “includ[e] diverse members [on his court-martial

panel] . . . prior to trial.” However, Appellant did not raise

his Fifth Amendment claim prior to trial because only one of the

ten deficient member questionnaires created by the Government

listed race, and thus Appellant was not aware of the suspicious

nature of his all-white panel until he saw the members for the

first time in court during voir dire. As soon as Appellant learned

the racial composition of his panel, he raised his preventative

Batson objection. Further, to be clear, an accused has no right to

a member panel “composed in whole or in part of persons of

[his] own race.” Powers v. Ohio, 499 U.S. 400, 404 (1991)

(emphasis added) (internal quotation marks omitted) (quoting

Strauder, 100 U.S. at 305). But, an accused such as this

Appellant “does have the right to be tried by a jury whose

members are selected by nondiscriminatory criteria,” and it is

this constitutional right of which Appellant sought to avail

himself at trial. Id. (emphasis added).

55a

IV. Conclusion

When a member of our Armed Forces makes a

prima facie showing of a violation of his constitutional

right to equal protection under the Fifth Amendment

based on the intentional and impermissible exclusion

of African Americans from a court-martial panel

hand-selected by a convening authority, a remand for

an evidentiary hearing is mandated. Indeed, as we

recently and unanimously stated, “[I]t is incumbent

upon this Court to scrutinize carefully any deviations

from the protections designed to provide [the] accused

servicemember with a properly constituted panel. . . .

[E]ven reasonable doubt concerning the use of

impermissible selection criteria for members cannot be

tolerated.” Riesbeck, 77 M.J. at 163 (emphasis added)

(internal quotation marks omitted) (citations

omitted).

And yet, despite the clear-cut mandate of

Riesbeck and despite the compelling and highly

disturbing facts in the instant case, the majority has

chosen to ignore this precedent, our attendant

responsibilities, and the fundamental principles

underlying a number of relevant Supreme Court cases

by denying Appellant a simple DuBay hearing so that

he may seek to vindicate his legal and constitutional

rights. This decision by the majority is wrong—

fundamentally and egregiously—and has grave

implications for all future courts-martial involving

African American servicemembers. Therefore, I

respectfully dissent.

56a

Judge SPARKS, with whom Judge OHLSON joins,

dissenting.

I agree with Judge Ohlson that the military

judge abused her discretion and I join his dissent. The

military judge’s somewhat cursory treatment of the

issues and her desire to move on demonstrated her

frustration with the timing of defense counsel’s

request. Nonetheless, given the significance of the

issue, the military judge should have at least ordered

a brief recess to allow the parties time to investigate

whether a compromise could be reached to resolve the

issue. Indeed, there is some indication in this record

that the convening authority might have obviated the

issue all together. True, it is just as possible that an

effort seeking such a compromise might not have been

successful, but in my view an attempt would have

been worthwhile.

I especially agree with Judge Ohlson that even

if Batson v. Kentucky, 476 U.S. 79 (1986), itself does

not explicitly apply to the convening authority, “the

fundamental equal protection principles espoused in

Batson must apply broadly to the entire jury-selection

process.” United States v. Bess,

M.J., (11) (C.A.A.F.

2020) (Ohlson, J., with whom Sparks, J., joined,

dissenting). That includes subordinate authorities

tasked with providing candidates for the convening

authority’s consideration. I also agree that the state of

this record does not allow a proper resolution of Issues

I and III. I believe Appellant presented enough

evidence of inconsistencies in and questions about the

member selection process that this Court should order

a post-trial hearing in accordance with United States

57a

v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), to

gather further information.

As articulated in United States v. Campbell, the

bar for ordering further collection of evidence through

a DuBay hearing is not high:

A [DuBay] hearing need not be ordered

if an appellate court can conclude that

the motion and the files and records of

the case…conclusively show that [an

appellant] is entitled to no relief …. [A]

hearing is unnecessary when the posttrial claim (1) is inadequate on its face,

or (2) although facially adequate is

conclusively refuted as to the alleged

facts by the files and records of the

case, i.e., they state conclusions instead

of facts, contradict the record, or are

inherently incredible. 57 M.J. 134, 138

(C.A.A.F. 2002) (alterations in original)

(internal quotation marks omitted)

(quoting United States v. Ginn, 47 M.J.

236, 244 (C.A.A.F. 1997)).

Here, Appellant introduced enough uncertainty

about racial disparities in the member selection

process in his and other cases that his claim was

neither inherently incredible nor conclusively refuted.

As the record currently stands, we do not know if or

why all-white panels may have been assigned to cases

involving African American defendants accused of

sexual offenses. The letter and signed affidavit from

Commander Czaplak, the Executive Officer of the

58a

Defense Service Office Southeast, raises questions

about a possible pattern of improper selection that

this Court should investigate further, especially given

the Supreme Court’s recent reliance on “historical

evidence” to identify patterns in jury selection in

Flowers v. Mississippi. 139 S. Ct 2228, 2245 (2019).1

Therefore, I believe a DuBay hearing is merited.

This Court has acknowledged that the military

justice system’s member selection process, though not

bound by the strictures of the Sixth Amendment jury

trial requirements, merits vigilance and careful

scrutiny to ensure that protections afforded a military

accused are not violated. United States v. Riesbeck, 77

M.J. 154, 162─63 (C.A.A.F. 2018). We have also

recognized that the convening authority has

“significant discretion” to select panel members as he

or she sees fit consistent with Article 25, Uniform

Code of Military Justice (UCMJ), 10 U.S.C. § 825. Id.

at 163. Therefore, it is vitally important that our

military justice system take seriously any claim that

the member selection process in a particular courtmartial may have improperly disadvantaged the

accused in any way.

1 In Flowers, the Supreme Court reiterated a defendant’s

right

to cast a wide net in gathering relevant historical evidence

pertaining to the government’s discriminatory jury selection

process (in the case of Flowers, a pattern of preemptive strikes of

black jurors in direct violation of Batson, 476 U.S. 79. 139 S. Ct.

at 2245. To paraphrase that opinion, we cannot take the history

out of the case. Id. at 2246.

59a

In my view, a remand for a DuBay hearing

would be in the convening authority’s interest. From

a good order and discipline standpoint, the convening

authority, like any commander, would want to be

informed and to take measures to tamp down any

perception, even an erroneous one, that racial animus

might have found its way into the court-martial

process. Commanders, unlike judges and lawyers, are

uniquely positioned to understand how easily

perception can transform into fact in the minds of

some members of the command.

The current record leaves a number of

unanswered questions surrounding the concerns

raised by Appellant. The prudent step at this point in

the proceedings would be for the Court to authorize a

DuBay hearing to shed further light on the panel

selection process including the actual racial

composition of Appellant’s panel, the information

available to the convening authority and how he or

any subordinate commanders might have gone about

selecting prospective members for this court-martial,

and relevant racial statistics of the member pool. We

might all agree that trial defense counsel could have

done better in presenting and following up on his

claim.

However,

defense

counsel’s

actions

notwithstanding, given the serious nature of the

issues—and that they potentially impact other

African American accuseds under this convening

authority—it is this Court’s responsibility to gather a

complete enough record that we may fully assess

whether any impropriety has occurred. Importantly,

such an inquiry does not, in and of itself, suggest

anything improper.

60a

For these reasons, I respectfully dissent.

61a

UNITED STATES OF AMERICA

Appellee

PEDRO M. BESS,

Hospital Corpsman Second Class (E-5), U.S. Navy

Appellant

United States Navy-Marine Corps

Court of Criminal Appeals

October 4, 2018, Decided

NMCCA 201300311

Reporter

2018 CCA LEXIS 476

Notice: THIS OPINION DOES NOT SERVE AS

BINDING PRECEDENT, BUT MAY BE CITED AS

PERSUASIVE AUTHORITY UNDER NMCCA RULE

OF PRACTICE AND PROCEDURE 18.2.

Prior History: Appeal from the United States NavyMarine Corps Trial Judiciary. Military Judge:

Commander Heather D. Partridge, JAGC, USN.

For Appellant: Lieutenant Jacob E. Meusch, JAGC,

USN.

For Appellee: Captain Brian L. Farrell, U.S.

Marine Corps; Captain Sean M. Monks, U.S. Marine

Corps.

62a

Judges: Before WOODARD, FULTON, and JONES,

Appellate Military Judges.

OPINION OF THE COURT

JONES, Senior Judge:

This case is before us for a second time. On 8

March 2013, the appellant was convicted of two

specifications of attempting to commit an indecent act

and four specifications of committing indecent acts, in

violation of Articles 80 and 120, (UCMJ), 10 U.S.C. §§

880 and 920 (2007).1 On 28 October 2014, we affirmed

the findings and sentence.2 On 6 January 2016, the

Court of Appeals for the Armed Forces (CAAF) held

that the military judge erred by denying the appellant

an opportunity to impeach evidence requested by the

members during deliberations. The CAAF set aside

the findings and sentence and remanded the case with

authorization for a rehearing. United States v. Bess,

75 M.J. 70 (C.A.A.F. 2016). The results of that

rehearing are before us now.

On remand, a general court-martial consisting

of members with enlisted representation convicted the

appellant, contrary to his pleas, of two specifications

of indecent acts in violation of Article 120, UCMJ.3

1 United States v. Bess, No. 201300311, 2014 CCA LEXIS 803 (N-

M. Ct. Crim. App. 28 Oct 2014) (unpub. op.).

2 Id.

3 The appellant was acquitted of two other specifications

involving similar crimes on separate alleged victims: one

specification of Article 80, UCMJ, 10 U.S.C. § 880 (2007), and one

specification of Article 120, UCMJ, 10 U.S.C. § 920 (2007).

63a

The convening authority (CA) approved the adjudged

sentence of confinement for one year, reduction to pay

grade E-3, and a reprimand.

The appellant raises ten assignments of error

(AOEs), which we have reordered: (1) the appellant’s

convictions for indecent acts are legally and factually

insufficient; (2) the government violated his due

process rights in failing to notify him that he was

being held on active duty beyond the end of his active

duty service obligation; (3) the military judge erred by

denying his request for the production of a witness; (4)

the military judge abused her discretion by denying

production of a statistical breakdown of the racial

make-up of the population within the CA’s pool of

potential members; (5) the military judge violated the

Equal Protection Clause of the Constitution by failing

to require a race-neutral reason for the CA’s exclusion

of black members from the appellant’s venire; (6) the

CA engaged in unlawful command influence (UCI) by

excluding black members from the venire; (7) the

military judge abused her discretion by denying the

appellant’s motion for a mistrial; (8) the government

illegally punished the appellant by taking his

uniforms after his first trial; (9) the panel violated his

due process rights because it consisted of less than six

members, and their verdict did not require unanimity;

and (10) the guilty verdict should be set aside and

dismissed under the cumulative error doctrine.

64a

We have considered AOEs nine and ten, and

find them to be without merit.4 Having carefully

considered the remaining AOEs, the record of trial,

and the parties’ submissions, we conclude the findings

and sentence are correct in law and fact and that no

error

materially

prejudiced

the

appellant’s

substantial rights. Arts. 59(a) and 66(c), UCMJ, 10

U.S.C. §§ 859(a) and 866(c).

I. BACKGROUND

The appellant is an African-American x-ray

technician who was assigned to the Naval Air Station

Oceana Branch Health Clinic (Oceana Clinic),

Virginia Beach, Virginia. While in the performance of

his duties at the clinic in February 2011, the appellant

told two female patients, PG, the dependent daughter

4 United States v. Clifton, 35 M.J. 79 (C.M.A. 1992). It is settled

law that a fivemember court-martial panel does not violate due

process. See United States v. Wolff, 5 M.J. 923, 925 (N.M.C.M.R.

1978) (holding there was no due process deprivation for a fivemember panel in the military, in spite of the Supreme Court’s

ruling in Ballew v. Georgia, 435 U.S. 223 (1978) which required

juries of at least six members in Article III courts); Article 16,

UCMJ; 10 U.S.C. § 816. It is also settled law that the panel’s vote

need not be unanimous. See Article 52(a)(2), UCMJ; 10 U.S.C. §

852(a)(2). See also United States v. Matias, 25 M.J. 356, 361,

(C.M.A. 1987).

When an accumulation of errors deprives an appellant of a fair

trial, Article 59(a), UCMJ, compels us to reverse it. United States

v. Banks, 36 M.J. 150, 171 (C.M.A. 1992). Here, given our

findings on the other AOEs, the cumulative error doctrine is

inapposite.

65a

of an active duty field grade officer, and Aviation

Support Equipment Technician (Mechanical) Petty

Officer 2nd Class (ASM2) AL, that they had to be

naked while he took their x-rays. Both women

complied by removing their clothing, and the

appellant purportedly took x-rays of them.5 At trial,

Dr. B, a radiologist, testified that patients are never

required to be naked for any type of x-ray.

A. PG

On 24 February 2011, PG’s doctor ordered xrays from the Oceana Clinic because PG was having

back and neck pain after a car accident. When PG

went to the x-ray room, she met two people, an “older

white gentleman” and the appellant.6 The older

gentleman and the appellant conducted chest x-rays

of PG while she was wearing jeans and t-shirt, but

with her bra removed.7

5 We

say “purportedly” because no x-rays of the women nude

were found during the investigation. At trial, a radiology

technician testified that it is possible for a technician to cause

the x-ray machine to make sounds without actually capturing an

image. Also, x-rays not sent to doctors were automatically and

systematically purged from the Oceana Clinic’s computers.

6 Record at 504-05.

7 At trial, PG was cross-examined on her October 2011 statement

to NCIS, where she stated that the older gentleman was present

during the original x-rays and that she was topless at that time.

Id. at 526-27. On re-direct examination, PG reiterated that—in

spite of what the NCIS agent had written—she was naked only

during the second set of x-rays when she and the appellant were

alone in the room. Id. at 532-33.

66a

After these initial x-rays, the older gentleman

left. The appellant then told PG that he needed to take

more x-rays because she was in a head-on collision

and he instructed her to get completely undressed.

The appellant left the room. PG did as she was

directed and lay on the table completely naked. The

appellant returned and appeared to take x-rays of PG

in several positions while she was completely naked.

These positions included having PG lay on her

stomach and stick her buttocks in the air and get into

a “frog-like position.”8 The positions completely

exposed PG’s naked vaginal area to the appellant.

During this time, PG was never given a gown or other

clothing to wear, and had only a small cloth that she

tried unsuccessfully to use to cover her breasts and

genitalia. Finally, PG asked if they had to continue

taking more x-rays, and the appellant said he would

“check with [her] doctor.”9 The appellant left the room

and returned a few moments later to tell PG she could

leave.

B. ASM2 AL

ASM2 AL’s flight surgeon ordered x-rays for

her back. On the morning of 25 February 2011, ASM2

AL went to the x-ray department at the Oceana Clinic

and a female technician took x-rays of her back while

she was lying down. ASM2 AL remained fully clothed

during this procedure. Later that evening, she was

instructed to return to the Clinic’s x-ray department

8 Id. at 515-16.

9 Id.

67a

because her doctor needed x-rays of her back “taken

standing up.”10

When ASM2 AL went back to the x-ray room

with the appellant, he instructed her to remove her

clothing and wear nothing except a gown. After she

had changed, the appellant came back into the room

and told her that “the doctor had requested that [she]

wear nothing and that [she] be completely nude to

take the x-rays.”11 The appellant left the room again

and she took off the gown as directed, leaving her

completely naked. When the appellant returned, he

had ASM2 AL sign a consent form which appeared to

be “a statement from [her doctor] saying that [she]

had to be nude for the x-rays so that they would show

up more clear [sic].”12 The appellant then took a series

of x-rays while she was standing and completely

naked. Throughout the entire process, ASM2 AL’s

breasts, buttocks, and vaginal area were exposed, and

the appellant encouraged her not to cover her pelvic

area with her hands.

Additional facts necessary to resolution of the

AOEs are included below.

10 Id. at 341-42; Prosecution Exhibit (PE) 20.

11 Record at 343.

12 Id. at 347.

68a

II. DISCUSSION

A. Legal and factual sufficiency

The appellant argues that the evidence is

legally and factually insufficient to find him guilty of

both specifications of indecent conduct. We disagree.

We review questions of legal and factual

sufficiency de novo. Art 66(c), UCMJ; United States v.

Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The

test for factual sufficiency is whether “after weighing

the evidence in the record of trial and making

allowances for not having personally observed the

witnesses, [this court is] convinced of appellant’s guilt

beyond a reasonable doubt.” United States v. Rosario,

76 M.J. 114, 117 (C.A.A.F. 2017) (citation, internal

quotation marks, and emphasis omitted). In

conducting this unique appellate function, we take “a

fresh, impartial look at the evidence,” applying

“neither a presumption of innocence nor a

presumption of guilt” to “make [our] own independent

determination as to whether the evidence constitutes

proof of each required element beyond a reasonable

doubt.” Washington, 57 at 399. Proof beyond a

reasonable doubt does not mean, however, that the

evidence must be free from conflict. United States v.

Goode, 54 M.J. 836, 841 (N-M. Ct. Crim. App. 2001).

“The test for legal sufficiency is whether, after viewing

the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a

reasonable doubt.” United States v. Robinson, 77 M.J.

69a

294, 297-98, (C.A.A.F. 2018) (quoting Rosario, 76 M.J.

at 117).

The appellant disputes only his identification

as the perpetrator. He avers that “the government

failed to prove beyond a reasonable doubt that [he]

was the performing [x-ray] technician.”13 Therefore,

we will focus on the government’s burden to prove

beyond a reasonable doubt that it was the appellant

that committed the indecent acts of unlawfully

viewing the nude bodies of PG and ASM2 AL during

their x-ray examinations.14

13 Id. at 504-14; Appellant’s Brief of 1 Dec 2017 at 59.

14 The elements for the indecent acts alleged in Specification 1 of

Charge II are:

(1) The appellant engaged in wrongful conduct by wrongfully

and without necessity having PG remove all of her clothing

in order to receive an x-ray examination and having her lay

on an examination table with her legs splayed, knees bent,

and feet together while she was nude and on her stomach

with her back arched and hips propped up while she was

nude and thereby observing her genitalia, buttocks, and

nipples; and

(2) The conduct was indecent.

The elements for the indecent acts alleged in Specification 2 of

Charge II are:

(1) The appellant engaged in wrongful conduct by wrongfully

and without necessity having ASM2 AL remove all of her

clothing in order to receive an x-ray examination and

thereby observing her nude body, to include the genitalia,

buttocks, and nipples; and

(2) The conduct was indecent.

10 U.S.C. § 920(k) (2007); MANUAL FOR COURTS-MARTIAL,

UNITED STATES (MCM) (2007 ed.), Part IV, ¶45b.(11); Record

at 803-04; Charge Sheet.

70a

Of the five x-ray technicians at the Oceana

Clinic, only two would appear to be black. One was the

appellant; the other was a native of Haiti, and spoke

with a “really thick” accent.15 In addition to his accent,

the other technician was readily distinguishable from

the appellant—he was tall and thin, and had a darkcomplexion. The appellant was comparatively stockier

and had a lighter complexion. The other technician

was a third class petty officer. The victims testified

that their technician was a second class petty officer,

like the appellant.

Both victims had ample opportunity to both

observe the appellant’s physical description and

clearly hear his voice while they were alone in the xray room with him. Both spent several minutes

talking to the appellant while he pretended to provide

them with medical care. Neither victim testified that

the x-ray technician that made them remove all of

their clothes had an accent. At trial, PG and ASM2 AL

positively identified the appellant as the x-ray

technician who took their x-rays while they were

nude.

The government submitted various records to

corroborate that it was the appellant who took x-rays

of PG and ASM2 AL while they were nude. The

appellant avers that these records were unreliable.

First, the government submitted documents from a

15 Record at 409. We use the term “black” in the opinion because

we are not certain the Haitian x-ray technician identifies as

African-American.

71a

medical care records system called the Composite

Healthcare System (CHCS), which is used to track

medical services for patients, including x-rays. Per the

CHCS, PG received her x-rays between 1709 and 1751

on 24 February 2011 from the appellant.16 Also per

the CHCS, ASM2 AL received her x-rays between

1645 and 1710, and then again at 1801 on 25 February

2011 from the appellant.17 The government also

presented the appellant’s unit’s muster reports for the

two days in question. They revealed that only one xray technician was on duty for both of these late shifts

at the Oceana Clinic—the appellant.

The corroborating evidence from the CHCS

presented by the government, however, is not

infallible. Any x-ray technician had the ability to

manipulate the CHCS report by simply putting a

different technician’s name into the system before

taking an x-ray. Also, it was not uncommon for a

technician to take x-rays of a patient while a different

technician was logged in to the CHCS system. In this

case, however, both PG’s and ASM2 AL’s x-rays were

taken after normal working hours when the appellant

was the only x-ray technician on duty, and therefore

not sharing the x-ray machine with other technicians.

We also accept that the unit’s muster reports were not

fail-safe evidence; after a muster report was taken,

technicians still rotated between the Oceana Clinic

and another nearby clinic based on work assignments

and personal necessities. But the CHCS records, in

conjunction with the appellant’s unit muster reports,

16 PE 12 at 4; Record at 439.

17 PE 14 at 2; Record at 430-31.

72a

corroborate the victims’ unwavering identification of

the appellant as the x-ray technician who took their xrays when they were nude.

We are convinced that the appellant was the xray technician who took PG’s and ASM2 AL’s x-rays

while they were nude. The evidence of his guilt is

overwhelming. The victims’ allegations and their incourt identifications are supported by other

testimonial and documentary evidence establishing

that the appellant was their x-ray technician.18 We do

not believe the victims confused the appellant for any

other x-ray technician working at the Oceana Clinic.

Each victim’s testimony at trial supported the charges

resulting in the convictions. We find unpersuasive the

appellant’s argument that his identification was

merely the result of government suggestibility and

that the victims confused him with the other black

technician. After carefully reviewing the record of

trial and considering the evidence in the light most

favorable to the prosecution, we are convinced that a

reasonable fact-finder could have found all the

essential elements beyond a reasonable doubt.

Furthermore, after weighing all the evidence in the

record of trial and having made allowances for not

having personally observed the witnesses, we are

convinced beyond a reasonable doubt of the

appellant’s guilt.

We also reject the appellant’s contention that because his

personal marker—a skull and crossbones with his initials—was

not visible on the victims’ x-rays he was not the technician who

conducted the x-rays. We are not surprised that the appellant

would seek to avoid identifying himself while committing crimes.

73a

B. Failure to notify the appellant that he was on

legal hold

The appellant alleges his due process rights

were violated because the government failed to

provide him notice that it was retaining him on active

duty past his End of Active Obligated Service (EAOS)

date.

After the appellant served his confinement for

his first court-martial, his command failed to

administratively change the expiration of his EAOS

from 20 October 2016 to 20 April 2017. This change

should have been made because days spent in

confinement do not count towards fulfilling a

servicemember’s enlistment.19 On 11 April 2017, the

appellant’s command realized the error and issued

him a counseling entry documenting that he had been

on legal hold from 20 October 2016 to 11 April 2017.20

The appellant argues this lack of notice of his legal

hold violated his right to due process, and that this

violation caused the court-martial to lose jurisdiction

over him. We disagree.

As the appellant raises this due process concern

for the first time on appeal, we apply the plain error

standard. See United States v. Lewis, 69 M.J. 379, 383

(C.A.A.F. 2011) (applying the plain error standard to

a due process claim first raised on appeal). Under the

plain error standard, the appellant must show that:

“(1) an error was committed; (2) the error was plain,

19 Appellant’s Motion to Attach of 20 Nov 2017, App. 2 at 2.

20 Id. at 2-3.

74a

or clear, or obvious; and (3) the error resulted in

material prejudice to substantial rights.” Id. (quoting

United States v. Maynard, 66 M.J. 242, 244 (C.A.A.F.

2008)).

Here, the appellant fails to show that the

government’s failure to provide this notification

plainly or obviously violated his right to due process.

The appellant cites no authority—and we find none—

supporting the proposition that the government’s

failure to notify him that he was being retained on

active duty amounted to a violation of the Fifth

Amendment guarantee of due process. Even if it did,

the record does not reveal that the appellant was

actually prejudiced. The record contains no indication

that the appellant did not know that he remained on

active duty. He was not discharged after his first

court-martial. The appellant’s brief makes plain that

the appellant wore a uniform and returned to active

service after having been confined.

The appellant erroneously links this perceived

failure of due process with jurisdiction. The appellant

incorrectly concludes that “as a result of the

government’s failure to provide such notice,

government officials were able to retain personal

jurisdiction” over the appellant.21 But notification is

not the source of, and does not affect, jurisdiction over

a service member. Rather, the appellant was subject

to the court-martial’s jurisdiction because he had

never been discharged from active duty. And the

record does not contain any reason to find that the

21 Appellant’s Brief at 35.

75a

appellant would have been discharged had he brought

the government’s error to its attention. Doubtless the

government would have simply notified him that he

was being retained for a second trial.

We find that the government did not violate the

appellant’s Fifth Amendment right to due process,

and that no administrative error severed courtmartial jurisdiction over the appellant.

C. Military judge’s denial of motion to produce a

witness

The appellant avers that the military judge

abused her discretion in denying the appellant’s pretrial motion to compel production of Investigator S as

a witness at trial. We disagree.

Investigator S was an investigator for the

Naval Criminal Investigative Service assigned to the

appellant’s

case.

During

his

investigation,

Investigator S used the CHCS to identify and then

cold-call numerous females who might have been

potential victims of the appellant. In one of these calls,

a female patient—who was never a victim in the

appellant’s case—indicated that her x-ray technician

might have been Caucasian. This was significant

because the CHCS indicated the appellant had been

signed in as her x-ray technician during the taking of

her x-rays. The agent noted that the patient stated

her technician was “Male (Caucasian)–Not too sure.”22

22 Appellate Exhibit (AE) VI at 6.

76a

The defense argued that Investigator S could testify

about this phone call with the unknown female. They

argued this would show the CHCS was too unreliable

to identify which x-ray technician took certain x-rays.

The military judge denied the motion, ruling

that the testimony of Investigator S was not relevant

or necessary. She stated that she could not “see how it

is any more likely that this is a flaw in the CHCS than

it is [the female patient’s] memory of describing the xray technician.”23 The military judge found that

Investigator S was cumulative with the defense’s own

expert consultant on the CHCS. She also found that

the defense could effectively cross-examine other

government witnesses with direct knowledge of the

CHCS—witnesses who would readily admit that the

CHCS showed only which x-ray technician was signed

in at any given time and not which technician took

certain x-rays.

We review witness production rulings for an

abuse of discretion. United States v. McElhaney, 54

M.J. 120, 126 (C.A.A.F. 2000). “The military judge’s

decision should only be reversed if, ‘on the whole,’

denial of the defense witness was improper.” United

States v. Ruth, 46 M.J. 1, 3 (C.A.A.F. 1997) (citations

omitted) (alteration in original). We will not reverse a

military judge’s ruling on a witness production motion

“unless [we] have a definite and firm conviction that

the [military judge] committed a clear error of

judgment in the conclusion [she] reached upon a

23 Record at 37.

77a

weighing of the relevant factors.” Id. (citations and

internal quotations omitted).

The test for whether a witness should be

produced is whether that witness is relevant and

necessary. R.C.M. 703(b)(1). To determine if the

testimony would be relevant, the trial judge must

consider whether the testimony would have any

tendency to make a fact of consequence more or less

probable, and that its probative value is not

outweighed by the danger of unfair prejudice,

confusing the issues, misleading the members, undue

delay, wasting time, or needlessly presenting

cumulative evidence. MILITARY RULE OF

EVIDENCE (MIL. R. EVID.) 401 and 403, MANUAL

FOR COURTS-MARTIAL (MCM), UNITED STATES

(2016 ed.).

To determine whether a witness is necessary,

we consider such factors as the issues involved in the

case and the importance of the requested witness as

to those issues; whether the witness is desired on the

merits or the sentencing portion of the trial; whether

the witness’s testimony would be merely cumulative;

and the availability of alternatives to the personal

appearance of the witness, such as deposition,

interrogatories or previous testimony. Ruth, 46 M.J.

at 4 (quoting United States v. Tangpuz, 5 M.J. 426,

429 (C.M.A. 1978)).

We agree with the military judge’s finding that

Investigator S’s testimony would have had very

minimal, if any, relevance. The unidentified female

patient’s memory was inconclusive, and Investigator

78a

S could only speculate about what her testimony

actually meant regarding the reliability of the CHCS.

We concur with the military judge’s finding that a

faulty memory of one patient would shed little, if any,

light on the trustworthiness of the CHCS.

We also conclude that the military judge did not

err in finding the evidence was not necessary.

Although she did not spell out all of the Ruth factors

for determining when a witness is necessary, the

military judge did address two of the factors in her

ruling: She addressed the first Ruth factor— the

issues involved in the case and the importance of the

requested witness as to those issues—when she found

Investigator S’s testimony unimportant regarding the

reliability of the CHCS. She also addressed the third

Ruth factor—whether the witness’s testimony would

be merely cumulative—in finding that there were

already several witnesses who were going to testify

about the reliability of the CHCS. In fact, the defense

conceded that the government was going to call at

least three x-ray technicians who would testify that

the CHCS did not always portray who a patient’s

actual x-ray technician was because the technicians

could “select any name from the drop-down menu”

when they took the x-rays.24

As the military judge anticipated, the issue of

the CHCS’s reliability was addressed by several

witnesses at trial. No fewer than three government

witnesses and three defense witnesses—including the

24 Id. at 22.

79a

appellant himself—testified regarding the reliability

of using the CHCS to positively identify which x-ray

technician took a certain x-ray.25 Production of

Investigator S’s testimony was not necessary.

Accordingly, we conclude that the military judge did

not abuse her discretion in denying the production of

Investigator S.

D. Denial of discovery

The appellant asserts that the military judge

abused her discretion in denying production of a

statistical breakdown of the racial make-up of the

population of the CA’s command.

1. Background

After general voir dire, but before the first member

was brought in for individual voir dire, the trial

defense counsel (TDC) stated the defense team had

noticed that the “the panel [was] all white,” their

client was African-American, and they “would prefer

African-American representation on the panel.”26 The

TDC indicated they were making “a combination of an

Article 25 [UCMJ,] challenge . . . almost like a

preventative Batson challenge. . . . It is almost as

though a command is preventing that race from

representation on the panel so that they can avoid a

Batson challenge.”27

25 Id. at 402-79; 540-647; 675-97; 737-45; 746-78.

26 Id. at 140.

27 Id. at 141.

80a

The military judge responded:

[A]bsent any evidence of anything

inappropriate being done by the

convening authority in assembling the

panel, you know, all I can state for the

record is that, if it wasn’t for frankly

some of—the reading that I did about

the prior proceeding, I would not

personally have known the race of your

client, and I certainly would not know

necessarily by observing him, nor do I

feel confident that I know the race of

several of the members of the panel. I

suspect that we have some minority

participation on the panel . . . .28

In response, the TDC stated, “I may have

misspoke [sic] and said that [the panel] were all

Caucasian, and that might not be true. I am fairly

confident that there is no African-American on the

panel of 10, which statistically speaking, you would

think that there would be at least one.”29

The TDC then requested to expand their initial

discovery request—which had been for the documents

accompanying the selection of members under Article

25, UCMJ—to include “a statistical breakdown of the

population as far as race with respect to the convening

authority’s command.”30 The military judge denied

28 Id.

29 Id. at 143.

30 Id. at 144.

81a

the discovery request. First, she found that the

defense had been in possession of the member’s

questionnaires for a week before trial and should have

raised the issue earlier. Second, she found that a

statistical breakdown of the CA’s command based on

race was not feasible, and was irrelevant absent any

evidence of impropriety.

Finally, the TDC argued that this was the

second members panel in a row in which he was

representing an African-American client and the

members appeared to be “an all-white panel.”31 The

military judge noted the TDC’s objection for the record

and then directed that the first member be called in

for individual voir dire.

2. Denial of request for discovery

We review a military judge’s ruling on a request

for production of evidence for an abuse of discretion.

United States v. Rodriguez, 60 M.J. 239, 246 (C.A.A.F.

2004). The military judge abuses her discretion when

her findings of fact are clearly erroneous or her ruling

is influenced by an erroneous view of the law. United

States v. Freeman, 65 M.J. 451, 453 (C.A.A.F. 2008).

Here, although we find the military judge erred in

declaring the TDC’s objection to the panel untimely,

she did not abuse her discretion by denying the

discovery request.

With regard to timeliness, the military judge

misapprehended the content of the members’

31 Id. at 146.

82a

questionnaires. Only one of the ten member’s

questionnaires had a question asking the member to

identify her race.32 The appellant would have had no

way of knowing what race the members appeared to

be until they actually arrived at the trial. The military

judge’s finding, therefore, that the defense could have

used the questionnaires to bring the motion sooner

was incorrect. The defense brought the issue to the

military judge’s attention when it came to their

attention. Our superior court has ruled that an

objection that the CA selected members for reasons

other than those listed in Article 25, UCMJ—such as

excluding members based on race—is always timely

and never waived. United States v. Riesbeck, 77 M.J.

154, 160 (C.A.A.F. 2018).33

Although the military judge erred with regard

to the timeliness of the motion, we find that she did

not abuse her discretion in denying the motion. First,

the defense request for “a statistical breakdown of the

population as far as race with respect to the convening

authority’s command” is not relevant. The record

reveals that the CA was able to detail members from

outside Navy Region Mid-Atlantic, and even from

commands not subordinate to his command. The

record also reveals that no members detailed to the

appellant’s court-martial listed Navy Region MidAE XXVVII at 76. The member with the racial identifier

question self-identified as Caucasian.

33 The CAAF equated this attack on member selection to UCI.

“We also noted that improper member selection can constitute

unlawful command influence, which cannot be waived.” Riesbeck,

77 M.J. at 176. See Section F, infra.

83a

Atlantic—the CA’s command—as their current

command. Knowing the racial makeup of the CA’s

command, therefore, would not have been useful to

the court-martial.

We are unable to re-construe the request to be

more relevant. The record does not reveal what

additional commands made up the CA’s pool of

available members. We cannot know—and the

appellant has not demonstrated—what a request for

more relevant information might have looked like.

What commands’ demographic information should be

used? Over what period of time? In terms of eligibility

under Article 25, UCMJ, what would be the

appropriate groups of people to consider? The

appellant’s request at trial was for irrelevant

information, and the military judge did not abuse her

discretion by denying it.

On appeal, the appellant asks us to re-tool the

request and order a DuBay hearing to “require the

government to produce the racial and statistical

makeup of the pool of members for the CA and

‘articulate[ ] a neutral explanation relative to this

particular case, giving a clear and reasonably specific

explanation of legitimate reasons’ for excluding black

members from HM2 Bess’ venire.”34 We find, however,

that the record is sufficient for us to determine that

the military judge did not abuse her discretion by

denying the request as it was made at trial. The

34 Appellant’s Brief at 47 (quoting United States v. Moore, 28 M.J.

366, 369 (C.M.A. 1989) (alteration in original).

84a

appellant presented no evidence that the CA used

anything other than the Article 25, UCMJ, criteria for

selecting members, or that he even knew the race of

all but one of the members he selected. The appellant’s

mid-voir dire request was for irrelevant information,

and the military judge rightly denied it at the time.

We decline the appellant’s invitation to litigate new

requests post-trial. This assignment of error is

without merit.

E. No African-Americans on the panel

The appellant urges us to extend Batson v.

Kentucky, 476 U.S. 79 (1986) and hold that the

military judge erred by not requiring the CA to give a

race-neutral reason for not having any AfricanAmericans on the panel. We decline to do so.

Batson, as applied to the military in United

States v. Santiago-Davila, 26 M.J. 380 (C.M.A. 1988),

allows an accused to require a prosecutor to give a

race-neutral reason for exercising a peremptory

challenge on a minority member. The appellant

argues that the CA circumvented Batson by not

including any African-Americans on the panel. The

appellant argues that the absence of AfricanAmericans on the panel is prima facie evidence that

the CA systematically excluded them, and that, under

Batson, the burden shifted to the government—

presumably the CA—to give a race-neutral reason for

not including African-Americans.

There is no precedent for this application of

Batson in courts-martial, and we decline to create it

85a

here. Additionally, we are bound by precedent that

establishes that, absent further evidence of some

intentional exclusion of a particular group by the CA,

the absence of African-Americans on the panel does

not constitute prima facie evidence of systematic

exclusion. See United States v. Loving, 41 M.J. 213,

285 (C.A.A.F. 1994). This assignment of error is

without merit.

F. Unlawful Command Influence

The appellant claims that the commander

exerted UCI by excluding African-American members

from the panel. We disagree.

To prove UCI on appeal the appellant must

show (1) facts, that if true, constitute UCI, (2) the

prior proceedings were unfair, and (3) the UCI “was

the cause of the unfairness.” United States v. Biagase,

50 M.J. 143, 150 (C.A.A.F. 1999) (citing United States

v. Stombaugh, 40 M.J. 208, 213 (C.M.A. 1994)). The

appellant must show facts that, if true, allege the

members were selected on an impermissible basis to

affect the result of the trial. Riesbeck, 77 M.J. at 159.

Proximate causation between the alleged UCI and

court martial outcome must be proven as well.

Biagase, 50 M.J. at 150 (citing United States v.

Reynolds, 40 M.J. 198, 202 (C.M.A. 1994)).

Allegations of UCI are reviewed de novo by this

court. United States v. Sayler, 72 M.J. 415, 423

(C.A.A.F. 2013) (citing United States v. Harvey, 64

M.J. 13, 19 (C.A.A.F. 2006)). The appellant alleges

that the CA used race to select an all-white panel in

86a

order to engage in court stacking, a form of UCI.

Riesbeck, 77 M.J. at 165. “The initial burden of

showing potential [UCI] is low, but is more than mere

allegation or speculation.” Id. (citing United States v.

Stoneman, 57 M.J. 35, 41 (C.A.A.F. 1999). If the

defense presents some evidence of UCI, the burden

shifts to the government to show either that there was

no UCI, or that any UCI did not taint the proceedings.

Stoneman, 57 M.J. at 41.

We find that the appellant has not met his

initial burden. With the exception of the one member’s

questionnaire that had a racial or ethnicity

identifying question and response, there is no

evidence that the CA knew the race of any of the other

nine members detailed to the court-martial. Again, we

observe that none of the members listed Navy Region

Mid-Atlantic as their parent command on their

member questionnaires. As all of the members denied

personally knowing the CA during voir dire, we have

no reason to suspect that the CA personally knew

them and would therefore have known their race. This

court cannot even be sure of the members’ race as the

record is absent of any questions posed during voir

dire to the members by either counsel or the military

judge regarding the members’ racial or ethnic

background.

We note that the appellant’s counsel was in

possession of the matters the CA used to select

members, and that he failed to introduce these

matters as evidence. Also, the appellant did not call

the CA as a witness to ask him about how he selected

members.

87a

We have considered the affidavit provided by

trial defense counsel’s executive officer. In that

affidavit, the executive officer notes that he

represented an African-American officer at courtmartial seven months after the appellant’s trial.

Before that officer’s trial, the executive officer sent a

letter to the CA asking for minority representation at

the officer’s trial. The CA complied with that request.

In the affidavit the executive officer goes on to state

that he is aware of three other cases in which AfricanAmericans were tried by all-white panels convened by

the CA. We find that this anecdotal observation by the

executive officer of a defense command, which cuts

both in favor of and against the appellant’s allegation

of CA bias, does not shift the burden to the

government to disprove UCI.

In addition to considering the case for actual

UCI, we have considered apparent UCI, asking

whether “an objective, disinterested observer, fully

informed of all the facts and circumstances, would

harbor a significant doubt about the fairness of the

proceeding.” Sayler, 72 M.J. at 423 (citing Lewis, 63

M.J. at 415). We find that there are insufficient facts

on the record that would lead a reasonable person to

harbor significant doubt about the fairness of the

proceeding. In possession of the CA’s members’

selection material, the appellant presented no

evidence that the CA selected members by using any

criteria other than those found in Article 25, UCMJ.

This assignment of error is without merit.

88a

G. Failure to grant a mistrial

The appellant avers that the military judge

abused her discretion in failing to grant a mistrial. We

disagree.

Before the beginning of the trial, the TDC

reminded the military judge that the parties had

agreed “to reference any testimony from the first trial

. . . as ‘prior testimony at a prior hearing,’ rather than

. . . that it was an actual contested trial.” The military

judge agreed:

As you stated, we—our goal is to

preclude any indication to the members

that there was a previous courtmartial. And, as indicated, counsel

should refer to any prior testimony as

something of the nature of, “At a prior

hearing,” or, “During prior testimony,”

something of that nature, and not refer

to a court-martial.35

During trial, the government called Dr. B, an

expert in radiology. On redirect examination, the

prosecutor asked Dr. B if he had reviewed certain xrays on the high resolution monitors at his office

before trial. Dr. B responded, “Not for this particular

trial. I did for the original trial.”36 The military judge

quickly excused the members and discussed issuing a

curative instruction with the parties. The defense

35 Record at 80.

36 Id. at 647.

89a

refused to participate in the drafting of the curative

instruction and asked for a mistrial. The military

judge denied the mistrial and provided the members

with the following curative instruction:

Members, you are to completely

disregard

Dr.

[B’s]

statement

concerning a prior proceeding. There

are many ways and reasons why a prior

proceeding that may have occurred

could’ve terminated. And you may

make no inference concerning the guilt

or innocence at [sic] the accused. You

are to determine the accused’s guilt or

innocence based solely on the evidence

presented to you in court. Is there any

member who cannot follow this

matter?37

All of the members indicated that they could

follow the instruction. The military judge gave the

appellant the overnight recess to draft a written

motion for mistrial. The defense filed the written

motion the next morning, which the military judge

denied. In her ruling, the military judge pointed out

that Dr. B mentioned only that there was a prior

trial—not a prior conviction—and that the defense

failed to provide any source of law for the proposition

that such a statement was worthy of a mistrial. The

military judge ruled that a curative instruction was

the appropriate remedy.

37 Id. at 664.

90a

[T]here were multiple and various

inferences the members could draw if

permitted

make

inferences

regarding the mere mention of a

previous trial. That is exactly why I

deemed a curative instruction to be the

appropriate remedial action to stop as

quickly as possible the members from

making any inferences. I do not agree

with the defense that the only

acceptable curative instruction would

require lying to the members.38

“We will not reverse a military judge’s

determination on a mistrial absent clear evidence of

an abuse of discretion.” United States v. Ashby, 68

M.J. 108, 122 (C.A.A.F. 2009) (citing United States v.

Rushatz, 31 M.J. 450, 456 (C.M.A. 1990)). A military

judge “may, as a matter of discretion, declare a

mistrial when such action is manifestly necessary in

the interest of justice because of circumstances arising

during the proceedings which cast substantial doubt

upon the fairness of the proceedings.” R.C.M. 915(a).

But “a mistrial is an unusual and disfavored remedy.

It should be applied only as a last resort to protect the

guarantee for a fair trial.” United States v. Diaz, 59

M.J. 79, 90 (C.A.A.F. 2003). “A curative instruction is

the preferred remedy, and the granting of a mistrial is

an extreme remedy which should only be done when

‘inadmissible matters so prejudicial that a curative

instruction would be inadequate are brought to the

38 Id. at 671.

91a

attention of the members.’” Id. at 92 (quoting R.C.M.

915(a), Discussion).

Here, we find the military judge did not abuse

her discretion by denying the request for a mistrial.

We do not believe the mere mention of a previous trial

by Dr. B casts substantial doubt upon the fairness of

the proceedings. See R.C.M. 915(a). The doctor’s

comment was not so prejudicial that a curative

instruction did not cure it. In fact, the curative

instruction alleviated any possible prejudice that

might have arisen. We presume “absent contrary

indications, that the panel followed the military

judge’s instructions.” United States v. Sewell, 76 M.J.

14, 19 (C.A.A.F. 2017).

H. The government taking the appellant’s

uniforms

The appellant claims he was unlawfully

punished under Article 13, UCMJ, when the

government kept his uniforms after his first

conviction was overturned and he was released from

the brig. We disagree.

Before findings, the appellant made an oral

Article 13, UCMJ, motion alleging illegal pretrial

punishment. The appellant testified that he was

required to turn in his uniforms when he entered

confinement after his first court-martial. He was then

ordered back to active duty when his convictions were

set aside. The appellant testified that he then bought

$400.00 worth of new uniforms because none of the

command’s spare uniforms fit him. The military judge

92a

denied the motion because she found no punitive

intent by the command to punish the appellant, and

“multiple legitimate[,] non-punitive government

interests” for taking uniforms from servicemembers

receiving a dishonorable discharge.39

Article

13,

UCMJ,

prohibits

pretrial

punishment: “[n]o person, while being held for trial,

may be subjected to punishment or penalty other than

arrest or confinement upon the charges pending

against him[.]” The CAAF has determined that for the

appellant to receive relief, he must show that the

government intended to punish him. “[T]he question

of whether particular conditions amount to

punishment before trial is a matter of intent, which is

determined by examining the purposes served by the

restriction or condition, and whether such purposes

are reasonably related to a legitimate governmental

objective.” Howell v. United States, 75 M.J. 386, 393

(C.A.A.F. 2016) (quoting United States v. Palmiter, 20

M.J. 90 (C.M.A. 1985)) (alteration in original)

(internal quotation marks omitted).

“The burden is on [the] appellant to establish

entitlement to additional sentence credit because of a

violation of Article 13[, UCMJ].” United States v.

Mosby, 56 M.J. 309, 310 (C.A.A.F. 2002) (citing R.C.M.

905(c)(2)). Whether an appellant is entitled to relief

for a violation of Article 13, UCMJ, is a mixed question

of law and fact. Id. (citing United States v. Smith, 53

M.J. 168, 170 (C.A.A.F. 2000) and United States v.

39 Id. at 671.

93a

McCarthy, 47 M.J. 162, 165 (C.A.A.F. 1997))

(additional citation omitted). “We will not overturn a

military judge’s findings of fact, including a finding of

no intent to punish, unless they are clearly erroneous.

We will review de novo the ultimate question whether

[this] appellant is entitled to credit for a violation of

Article 13[, UCMJ].” Id. (citing Smith, 53 M.J. at 170).

Here, the appellant presented no evidence that

the government acted with a punitive intent when it

appropriated his uniforms after his first conviction.

Accordingly, the military judge found no intent to

punish: “[T]here does not appear to be any punitive

intent in the lack of retention of [the appellant’s]

uniforms while he was in the brig, or those items being

returned to him.”

The military judge also found legitimate,

nonpunitive purposes for the government’s policy of

confiscating uniforms of servicemembers who had

received punitive discharges. Those reasons included:

(1) preventing servicemembers who had received

punitive discharges from wearing their uniforms out

in town; (2) complying with the Naval Military

Personnel Manual’s requirement for persons with

punitive discharges to surrender their uniforms;40 and

(3) compliance with 10 U.S.C. § 771a’s requirement

that when an enlisted servicemember is discharged

dishonorably his issued clothing must be retained by

the military.41

40 MILPERSMAN, Art. 1910-228, p.1 (CH-11, 1 Jun 2005).

41 Record at 1089-90.

94a

The military judge’s findings of fact are

supported by the record and are not clearly erroneous.

Her conclusions of law are correct. Accordingly, we

find that the appellant is not entitled to relief under

Article 13, UCMJ.

III. CONCLUSION

The findings and sentence as approved by the

CA are affirmed.

Chief Judge WOODARD and Senior Judge

FULTON concur.

FOR THE COURT

C e k of Cou t

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.