United States v. Bess

UNITED STATES Appellee v. Pedro M. BESS, Hospital Corpsman Second Class Petty Officer United States Navy, Appellant

No. 19-0086

Crim. App. No. 201300311

United States Court of Appeals, Armed Forces

May 14, 2020

Argued October 23, 2019

Military Judge: Heather Partridge

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).

Judge RYAN delivered the opinion of the Court, in which Chief Judge STUCKY joined, and Judge MAGGS joined, except as to Part II. B1 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.

OPINION

RYAN Judge

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).

On appeal, Appellant alleges racial discrimination and unlawful influence in the convening authority's selection of members. We granted review to consider three issues:

I. Whether the convening authority's selection of members violated the equal protection requirements of the Fifth Amendment.

II. Whether the convening authority's selection of members constituted unlawful command influence.

III. 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.

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 African-American, 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 previous 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 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." 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."

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 court-martial.^[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]

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 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 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 Batson v. Kentucky, 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...