UNITED STATES, Appellee

V.

Ricky L. LAMBERT, Lieutenant Junior Grade,

U.S. Navy, Appellant

No. 00-0319

Crim. App. No. 97-2027

United States Court of Appeals for the Armed Forces

Argued November 9, 2000

Decided August 15, 2001

BAKER, J., delivered the opinion of the Court, in which

CRAWFORD, C.J., and SULLIVAN, GIERKE, and EFFRON, JJ., joined.

Counsel

For Appellant: Lieutenant Jonathan R. Goodman, JAGC, USNR

(argued).

For Appellee: Major Edward C. Durant, USMC (argued); Colonel

Marc W. Fisher, Jr., USMC, and Lieutenant Commander Philip L.

Sundel, JAGC, USNR (on brief); Colonel Kevin M. Sandkuhler,

USMC, and Lieutenant Kevin S. Rosenberg, JAGC, USNR.

Military Judge: J. F. Blanche

THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. Lambert, No. 00-0319

2

Judge BAKER delivered the opinion of the Court.

Appellant was tried by a general court-martial composed of

officer members on August 19, September 13, and October 21,

1996, and February 4, February 24-28, and March 3-4, 1997. He

was found guilty of one specification of indecent assault in

violation of Article 134, Uniform Code of Military Justice, 10

USC § 934. Appellant was sentenced to a dismissal, 30 days’

confinement, and a reprimand. The convening authority approved

the adjudged sentence. The Court of Criminal Appeals affirmed

the findings and sentence in an unpublished opinion. This Court

granted review of the following issue:

WHETHER THE MILITARY JUDGE ERRED IN FAILING TO

ADEQUATELY VOIR DIRE THE MEMBERS, AND FAILING TO

ALLOW CIVILIAN DEFENSE COUNSEL TO VOIR DIRE THE

MEMBERS, AFTER A MEMBER INTRODUCED A BOOK

ENTITLED “GUILTY AS SIN” INTO THE DELIBERATION

ROOM.

We hold that the military judge did not err under these

facts.

FACTS

Immediately following the rendering of the verdict, the

civilian defense counsel made the following comment on the

record:

CC: Yes, sir. I have one matter I think we need to

discuss before we move to other procedural

aspects of the sentencing in this case.

It has come to my attention that throughout the

deliberations, one of the members has had a book
United States v. Lambert, No. 00-0319

3

in the deliberation room with him entitled,

“Guilty as Sin.” I have not read the book and I

don’t know what it is, and I don’t know exactly

who it belongs to, other than that it belongs to

one of the members and has been out in full view

during the deliberations. I know that the cover

of the book has a picture of a judge, a jury, and

a witness; and on the witness stand is written

“Liar.” I believe at this point we should voir

dire the members and find out whose book it is

and what, if any, influence it has. I think - -

and I don’t recall specifically that the military

judge in preliminary instructions said that they

should not have any outside materials in there,

or consult any outside material.

MJ: All right. We’ll discuss that when we come back

in.

(Emphasis added.)

Following a short recess, the military judge conducted the

following inquiry:

MJ: One matter that the parties have asked me to

inquire about is, it was observed in the

deliberation room that somebody brought to the

deliberation room a novel or book called, “Guilty

as Sin.” Who brought that particular book there?

(Captain [P] raised her hand.)

The members then withdrew from the courtroom, with the

exception of Captain P. Captain P was then questioned by the

military judge as follows:

MJ: Captain [P], the parties are not familiar with

this particular book or novel. Is this a fiction

novel?

MBR (CAPT P): Yes, sir.
United States v. Lambert, No. 00-0319

4

MJ: Okay; and did you just bring it with you to read

during down time in administrative breaks when we

were not deliberating?

MBR (CAPT P): Yes, sir. I haven’t brought it for the

last two days.

MJ: Okay; and did you share its contents with any

other member of the panel?

MBR (CAPT P): No, sir.

MJ: Did any other panel member request to read it?

MBR (CAPT P): No, sir.

MJ: Okay. Did it play any part whatsoever in your

deliberations process?

MBR (CAPT P): No, sir.

MJ: And again, you were instructed - - or recall my

instructions that you were not to consult any

written source, whether it be the Manual for

Courts-Martial, the UCMJ, or anything else, in

deciding any of the issues in this case. Have

you explicitly followed my instructions in that

regard?

MBR (CAPT P): Yes, sir.

Following these questions, the defense requested an

opportunity to voir dire the member. The request was denied by

the military judge. No offer of proof was made by the defense

as to any proposed voir dire questions, nor did the defense

raise a motion for a new trial or a mistrial.

The instructions given to the members by the military judge

were standard Benchbook1 instructions occurring both before and

 

1

 Military Judges’ Benchbook (Dept. of the Army Pamphlet 27-9 (April 1,

2001)).
United States v. Lambert, No. 00-0319

5

after general voir dire. Before, the military judge instructed

the members: “You are required to follow my instructions on the

law, and may not consult any other source as to the law

pertaining to this case unless it is admitted into evidence.”

After, the military judge instructed the members that they “may

not consult any source, written or otherwise, as to matters

involved in this case.”

DISCUSSION

The Sixth Amendment provides: “In all criminal

prosecutions, the accused shall enjoy the right to a speedy and

public trial, by an impartial jury of the State and district

wherein the crime shall have been committed. . . .” A military

accused has no Sixth Amendment right to a trial by jury, Ex

Parte Quirin, 317 U.S. 1, 39-40 (1942). However, “Congress has

provided for trial by members at a court-martial.” United

States v. Witham, 47 MJ 297, 301 (1997).

Further, the Sixth Amendment requirement that the jury be

impartial applies to court-martial members and covers not only

the selection of individual jurors, but also their conduct

during the trial proceedings and the subsequent deliberations.

See RCM 912 and 923, Manual for Courts-Martial, United States

(1995 ed.).2 This case involves the latter aspect of

 

2

 All Manual provisions are cited to the version in effect at the time of

appellant’s court-martial. The current version is unchanged unless otherwise

indicated.
United States v. Lambert, No. 00-0319

6

impartiality: specifically, the conduct of an individual member

during deliberations who may have introduced extraneous

information into the deliberative process.

It is long-settled that a panel member cannot be questioned

about his or her verdict but can be questioned about the

introduction of extraneous information into the deliberative

process. Tanner v. United States, 483 U.S. 107 (1987); United

States v. Witherspoon, 16 MJ 252, 253 (CMA 1983); Mil.R.Evid.

606(b), Manual, supra. That, however, is not the question

before us. The appellant here challenges the procedure by which

the members were questioned. Specifically, appellant alleges

that the military judge erred by inadequately questioning the

members and by failing to allow civilian defense counsel to

question the members.

RCM 923 provides that findings may be impeached when

“extraneous prejudicial information was improperly brought to

the attention of a member, outside influence was improperly

brought to bear upon any member, or unlawful command influence

was brought to bear upon any member.” Further, the Discussion

to RCM 923 provides that

when a showing of a ground for impeaching the

verdict has been made, members may be questioned

about such a ground. The military judge

determines, as an interlocutory matter, whether

such an inquiry will be conducted and whether a

finding has been impeached.
United States v. Lambert, No. 00-0319

7

In making the determination whether to investigate and what

kind of investigation to make, as well as whether and to what

extent the conduct was prejudicial, the trial court has wide

discretion. 2 Steven A. Childress & Martha S. Davis, Federal

Standards of Review § 12.06 at 12-36 (3rd ed. 1999), citing

United States v. Boylan, 898 F.2d 230, 258 (1st Cir. 1990), cert.

denied, 498 U.S. 849 (1991); United States v. Ianniello, 866

F.2d 540, 543 (2d Cir. 1989); United States v. Soulard, 730 F.2d

1292 (9th Cir. 1984); United States v. Manning, 509 F.2d 1230 (9th

Cir. 1974), cert. denied, 423 U.S. 824 (1975). Discretionary

decisions will be reviewed for abuse only. Id. at 12-37.

With respect to the adequacy of the questions asked by the

military judge, the court below noted, and we agree, that

[t]he military judge established that the novel

played no role in deliberations, that no member

other than its owner possessed the novel, that no

member inquired of the contents of the novel,

that the novel was present for only 2 of the 10

hours of deliberations, and that the novel was

not referred to at any time during the

deliberations.

Unpub. op. at 6. Based upon his questions, the military judge

was able to determine that neither Captain P nor any other juror

violated the instructions he gave them to not “consult any other

source as to the law pertaining to this case” and not “consult

any source, written or otherwise, as to matters involved in this

case.” The book in question was fiction, did not relate to the
United States v. Lambert, No. 00-0319

8

case, was not consulted by anyone, and was present only for 2 of

the 10 hours of deliberation. Therefore, we hold that the

military judge’s questions were adequate.

Appellant asserts, nevertheless, that the military judge

should have allowed civilian defense counsel to question the

members. We disagree. In the context of questioning members

before they are empaneled, as a precursor to challenges for

cause and peremptory challenges, this Court has held: “Neither

the UCMJ nor the Manual. . . gives the defense the right to

individually question the members.” United States v. Dewrell,

55 MJ 131, 136 (2001), citing United States v. Jefferson, 44 MJ

312, 317-19 (1996). We find this to be just as true with

respect to questioning members concerning their conduct during

the proceedings and deliberations.

As for the standard of review, we hold that in the context

of inquiring into members’ conduct during the proceedings or

deliberations, a military judge’s decision is reviewed for an

abuse of discretion. There was no evidence that any of the

other members even saw the book in question. Additionally,

defense counsel did not articulate any particular way in which

the military judge’s voir dire questions were inadequate, nor

did she make an offer of proof as to other areas that would be

addressed in her proposed questioning. Hence, we hold that the
United States v. Lambert, No. 00-0319

9

military judge did not abuse his discretion in declining to

allow civilian defense counsel to voir dire the members.

The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.