UNITED STATES, Appellee 

v. 

Kirk V. BRIGGS, Technical Sergeant 

U.S. Air Force, Appellant 

No. 06-0178 

Crim. App. No. 35123 

United States Court of Appeals for the Armed Forces 

Argued October 24, 2006 

Decided January 25, 2007 

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

C.J., and ERDMANN, J., joined. 

STUCKY and RYAN, JJ., did not participate. 

Counsel 

For Appellant: Captain Timothy M. Cox (argued); Lieutenant 

Colonel Mark R. Strickland and Captain Vicki A. Belleau (on 

brief). 

For Appellee: Captain Daniel J. Breen (argued); Colonel Gerald 

R. Bruce and Lieutenant Colonel Robert V. Combs (on brief). 

Military Judge: Bryan T. Wheeler 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION
United States v. Briggs, No. 06-0178/AF 

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Judge BAKER delivered the opinion of the Court. 

Appellant was tried by general court-martial consisting of 

officer members. Contrary to his pleas, Appellant was convicted 

of four specifications of selling military property and one 

specification of larceny on divers occasions, in violation of 

Articles 108 and 121, Uniform Code of Military Justice (UCMJ), 

10 U.S.C. §§ 908, 921 (2000), respectively. The adjudged 

sentence included a dishonorable discharge, forfeiture of all 

pay and allowances, confinement for five years, and reduction to 

E-1. The convening authority approved the adjudged sentence, 

and waived forfeitures pursuant to Article 58b(b), UCMJ, 10 

U.S.C. § 858b(b) (2000). The court below affirmed. 

 On Appellant’s petition, we granted review on the following 

issue: 

WHETHER THE MILITARY JUDGE ERRED IN DENYING APPELLANT’S 

CHALLENGE FOR CAUSE AGAINST CAPTAIN H. 

BACKGROUND 

Appellant was an electro-environmental technician whose 

duties involved maintaining C-5 aircraft at Travis Air Force 

Base. He was accused of stealing and later re-selling survival 

vests from the aircraft he was responsible for maintaining. 

 Captain (Capt) H, the wife of Appellant’s flight commander, 

was detailed to serve as a court member at Appellant’s courtmartial. Capt H raised her hand when asked whether she had 
United States v. Briggs, No. 06-0178/AF 

3

prior knowledge of the case. On voir dire, Capt H stated that 

she had learned from her husband that “vests went missing and 

that the person or a person -- I didn’t know who -- was put on 

desk duty.” Upon further questioning, Capt H stated that she 

did not know any additional details about the case, and that her 

husband was deployed to Kuwait at the time of the trial. 

 Appellant challenged Capt H for cause, arguing that there 

would be an appearance of unfairness if the wife of Appellant’s 

commanding officer were allowed to sit on Appellant’s courtmartial. The military judge denied Appellant’s challenge, 

noting that Capt H “wasn’t aware precisely of which flight the 

person was in” and since Capt H’s husband was currently deployed 

to Kuwait there would be little chance for them to discuss the 

case. The military judge further concluded that Capt H 

“appeared to be quite sincere and listened quite attentively as 

I instructed her on what she could consider” and that 

“regardless of whether she had a discussion with her husband . . 

. there is going to be evidence presented that vests were 

missing from one of the flights on this base.” Appellant 

preserved this issue on appeal by using his sole peremptory 

challenge against another member of the panel. Rule for CourtsMartial (R.C.M.) 912(f)(4). 
United States v. Briggs, No. 06-0178/AF 

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DISCUSSION 

R.C.M. 912(f)(1)(N) requires removal for cause when a court 

member should not sit “in the interest of having the courtmartial free from substantial doubt as to legality, fairness and 

impartiality.” R.C.M. 912 (f)(1)(N) encompasses both actual and 

implied bias. United States v. Strand, 59 M.J. 455, 458 

(C.A.A.F. 2004). The concepts of actual and implied bias are 

“separate legal tests, not separate grounds for challenge.” 

United States v. Armstrong, 54 M.J. 51, 53 (C.A.A.F. 2000). 

Because a challenge based on actual bias is “essentially one of 

credibility,” and because “the military judge has an opportunity 

to observe the demeanor of court members and assess their 

credibility on voir dire,” a military judge’s ruling on actual 

bias is afforded deference. United States v. Daulton, 45 M.J. 

212, 217 (C.A.A.F. 1996) (citations and quotation marks 

omitted). However, implied bias is “viewed through the eyes of 

the public, focusing on the appearance of fairness.” United 

States v. Rome, 47 M.J. 467, 469 (C.A.A.F. 1998). Implied bias 

exists when, “regardless of an individual member’s disclaimer of 

bias, most people in the same position would be prejudiced [that 

is, biased].” United States v. Napolitano, 53 M.J. 162, 167 

(C.A.A.F. 2000). Since implied bias is an objective standard, a 

military judge’s ruling on implied bias, while not reviewed de 

novo, is afforded less deference than a ruling on actual bias. 
United States v. Briggs, No. 06-0178/AF 

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Strand, 59 M.J. at 458. However, deference is warranted only 

when the military judge indicates on the record an accurate 

understanding of the law and its application to the relevant 

facts. United States v. Downing, 56 M.J. 419, 422 (C.A.A.F. 

2002). 

In this case, the military judge addressed Appellant’s 

challenge to Capt H without expressly addressing implied bias or 

the liberal grant mandate on the record. Rather, the military 

judge discussed various factors relating to Capt H’s demeanor, 

her professed lack of knowledge, and her husband’s absence 

during Appellant’s court-martial. While the military judge’s 

analysis made it clear that he found no actual bias, we do not 

know what, if any, reasoning prompted him to deny a challenge 

predicated on implied bias. In United States v. Clay, 64 M.J. 

__ (6-8) (C.A.A.F. 2007), we stated: 

[I]n light of the role of the convening authority in 

selecting courts-martial members and the limit of one 

peremptory challenge per side, military judges are enjoined 

to be liberal in granting defense challenges for cause. 

Challenges based on implied bias and the liberal grant 

mandate address historic concerns about the real and 

perceived potential for command influence on members’ 

deliberations. 

. . . . 

In short, the liberal grant mandate is part of the 

fabric of military law. The mandate recognizes that the 

trial judiciary has the primary responsibility of 

preventing both the reality and the appearance of bias 

involving potential court members. 
United States v. Briggs, No. 06-0178/AF 

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Applying the standard for implied bias, we conclude that 

the military judge erred when he denied the challenge for cause 

against Capt H. It is true that Capt H’s responses did not 

reflect actual bias against Appellant. Among other things, Capt 

H disclaimed prior knowledge of the case beyond the fact that 

some “vests went missing.” 

However, there are a number of factors that necessitated 

dismissing Capt H from the panel.1

 First, her husband was a 

member of the squadron whose members’ safety might have been 

implicated by the theft. The military judge was aware of the 

safety concerns. Immediately before the questioning of Capt H, 

two other members had expressed the view that the thefts could 

have affected mission safety. Second, Capt H was married to 

Appellant’s flight commander, whose performance evaluation could 

be affected by criminal conduct regarding critical squadron 

equipment that was supposed to be safeguarded in a secure area. 

Third, in military practice, the immediate commander is often 

responsible for the initial inquiry into potential misconduct 

occurring within his command and the initial decision as to 

disposition. See R.C.M. 301; R.C.M. 303; R.C.M. 306. Moreover, 

 

1

 “Although military or national security exigencies may create 

personnel circumstances relevant to the liberal grant analysis, 

there is no indication in the record that this was the reason 

for the military judge’s denial of Appellant’s challenge for 

cause.” Clay, 64 M.J. at ___ (11, n.2). 
United States v. Briggs, No. 06-0178/AF 

7

if the immediate commander lacks the authority to dispose of the 

matter at his level, he forwards the matter to a superior. 

R.C.M. 306. The intent of the drafters of the UCMJ was to 

“prevent courts martial from being an instrumentality and agency 

to express the will of the commander,”2

 or to appear to be such 

an instrumentality. The decision to retain Capt H, the spouse 

of Appellant’s immediate commander, unnecessarily raised the 

perception of improper command bias. For these reasons, we 

conclude that the military judge erred by denying the challenge 

for cause against Capt H, the spouse of Appellant’s commander 

whose safety might have been affected by the alleged theft, on 

the ground of implied bias. 

DECISION 

The decision of the United States Air Force Court of 

Criminal Appeals is reversed and the findings and sentence are 

set aside. The record of trial is returned to the Judge 

Advocate General of the Air Force. A rehearing may be 

authorized. 

 

2

 Uniform Code of Military Justice: Hearings on H.R. 2498 Before 

a Subcommittee of the House Committee on Armed Services, 81st 

Cong. 606 (1949) (statement of Professor Edmund M. Morgan Jr.), 

reprinted in Index and Legislative History, Uniform Code of 

Military Justice (1950) (not separately paginated).