UNITED STATES, Appellee 

v. 

Jason M. BAGSTAD, Staff Sergeant 

U.S. Marine Corps, Appellant 

No. 09-0429 

Crim. App. No. 200602454 

United States Court of Appeals for the Armed Forces

Argued December 7, 2009 

Decided April 13, 2010 

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

C.J., and RYAN, J., joined. BAKER, J., filed a separate 

dissenting opinion, in which ERDMANN, J., joined. 

Counsel

For Appellant: Major Anthony W. Burgos, USMC (argued). 

For Appellee: Colonel Louis J. Puleo, USMC (argued); Lieutenant 

Duke J. Kim, JAGC, USN, and Brian K. Keller, Esq. (on brief); 

Captain Geoffrey S. Shows, USMC. 

Amicus Curiae for Appellant: Eugene R. Fidell, Esq., Michelle 

M. Lindo McCluer, Esq., Stephen A. Saltzburg, Esq., and Jonathan 

E. Tracey, Esq. (on brief) -- for the National Institute of 

Military Justice. 

Military Judges: J. Wynn (arraignment) and P. J. Ware (trial) 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 
United States v. Bagstad, No. 09-0429/MC 

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 Judge STUCKY delivered the opinion of the Court. 

 We granted review to determine whether the military judge 

abused his discretion in denying Appellant’s challenge for cause 

against Captain (Capt) Stojka, who sat with his subordinate on a 

court-martial panel composed of three members. We hold that the 

military judge did not err in denying the challenge for cause. 

I. 

 Contrary to his pleas, a special court-martial composed of 

members convicted Appellant of wrongfully using marijuana, in 

violation of Article 112a, Uniform Code of Military Justice 

(UCMJ), 10 U.S.C. § 912a (2006). The members sentenced 

Appellant to a bad-conduct discharge and reduction to the lowest 

enlisted grade. The convening authority approved the badconduct discharge but disapproved the reduction in grade, and 

the United States Navy-Marine Corps Court of Criminal Appeals 

(CCA) affirmed. United States v. Bagstad, 67 M.J. 599, 602 

(N-M. Ct. Crim. App. 2008). The CCA had previously set aside 

Appellant’s conviction and remanded for a rehearing or a 

dismissal. United States v. Bagstad, No. NMCCA 200602454, 2007 

CCA LEXIS 444, at *1, 2007 WL 3307025, at *1 (N-M. Ct. Crim. 

App. Oct. 31, 2007) (unpublished). 

 At the second court-martial, the venire was originally 

composed of five members: Capt Pirttinen, Capt Stojka, First 

Sergeant Nguyen, Gunnery Sergeant (GySgt) Walston, and GySgt 
United States v. Bagstad, No. 09-0429/MC 

3

Hightower. Voir dire revealed that Capt Stojka was the senior 

reporting officer for GySgt Walston. The military judge asked 

GySgt Walston if he would feel inhibited in any way in voicing 

an opinion that disagreed with Capt Stojka’s opinion, and GySgt 

Walston responded that he would not. The military judge then 

asked Capt Stojka whether he would feel undermined if a 

subordinate voiced an opinion different from his in 

deliberations, and Capt Stojka responded that he would not. The 

defense did not question either Capt Stojka or GySgt Walston 

about their senior-subordinate relationship. 

After questioning but prior to the challenges, the military 

judge sua sponte expressed his intention to excuse Capt 

Pirttinen based on her knowledge of the results of Appellant’s 

previous trial. The defense then challenged Capt Stojka for 

cause, in part on the ground that Capt Stojka wrote GySgt 

Walston’s fitness report. 

The Government responded by arguing that GySgt Walston was 

an experienced staff noncommissioned officer who would have no 

trouble being on the same panel as Capt Stojka. The military 

judge then denied the challenge for cause against Capt Stojka. 

The military judge’s analysis did not specifically address Capt 

Stojka’s reporting relationship with GySgt Walston. 

 The defense exercised its peremptory challenge on GySgt 

Hightower. The military judge then formally excused Capt 
United States v. Bagstad, No. 09-0429/MC 

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Pirttinen and GySgt Hightower. The defense did not object to 

the final composition of the three-member panel. 

II. 

Appellant argues that the military judge’s denial of the 

challenge for cause resulted in an unfair trial because the 

senior member and one of his subordinates comprised the twothirds majority sufficient to convict. 

Rule for Courts-Martial (R.C.M.) 912(f)(1)(N) mandates that 

a member be excused whenever he should not sit “in the interest 

of having the court-martial free from substantial doubt as to 

legality, fairness, and impartiality.” “This rule encompasses 

challenges based upon both actual and implied bias.” United 

States v. Elfayoumi, 66 M.J. 354, 356 (C.A.A.F. 2008) (citing 

United States v. Clay, 64 M.J. 274, 276 (C.A.A.F. 2007)). 

“Implied bias exists when, ‘regardless of an individual member’s 

disclaimer of bias, most people in the same position would be 

prejudiced . . . .’” United States v. Briggs, 64 M.J. 285, 286 

(C.A.A.F. 2007) (quoting United States v. Napolitano, 53 M.J. 

162, 167 (C.A.A.F. 2000)). The test for determining an R.C.M. 

912(f)(1)(N) challenge for implied bias is objective, “‘viewed 

through the eyes of the public, focusing on the appearance of 

fairness.’” Clay, 64 M.J. at 276 (quoting United States v. 

Rome, 47 M.J. 467, 469 (C.A.A.F. 1998)). The hypothetical 

“public” is assumed to be familiar with the military justice 
United States v. Bagstad, No. 09-0429/MC 

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system. See United States v. Downing, 56 M.J. 419, 423 

(C.A.A.F. 2002). In carrying out this objective test, this 

Court determines “whether the risk that the public will perceive 

that the accused received something less than a court of fair, 

impartial members is too high.” United States v. Townsend, 65 

M.J. 460, 463 (C.A.A.F. 2008). Challenges for actual or implied 

bias are evaluated based on the totality of the factual 

circumstances. United States v. Bragg, 66 M.J. 325, 327 

(C.A.A.F. 2008) (citing United States v. Strand, 59 M.J. 455, 

459 (C.A.A.F. 2004)). 

This Court’s standard of review on a challenge for cause 

premised on implied bias is “less deferential than abuse of 

discretion, but more deferential than de novo review.” United 

States v. Moreno, 63 M.J. 129, 134 (C.A.A.F. 2006) (citing 

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

United States v. Napoleon, 46 M.J. 279, 283 (C.A.A.F. 1997)). 

We apply less deference in this case because the military judge 

did not place his analysis concerning the senior-subordinate 

relationship portion of the challenge on the record. See United 

States v. Richardson, 61 M.J. 113, 120 (C.A.A.F. 2005) 

(providing less deference where the military judge’s analysis 

was not comprehensive). 
United States v. Bagstad, No. 09-0429/MC 

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III. 

We find that the military judge did not err in denying the 

challenge for two reasons. First, there is no per se rule that 

a military judge must dismiss a member “predicated solely on the 

fact that a senior member of the court-martial is involved in 

writing or endorsing the effectiveness reports of junior 

members.” United States v. Murphy, 26 M.J. 454, 456 (C.M.A. 

1988); accord United States v. Wiesen, 56 M.J. 172, 175 

(C.A.A.F. 2001). And second, there was no other evidence in the 

record indicating implied bias from the ratings relationship 

that would cause the knowledgeable member of the public to 

perceive that the accused’s court-martial panel was not fair and 

impartial. See Townsend, 65 M.J. at 463. 

Before the CCA and this Court, Appellant cited this Court’s 

decision in Wiesen for the proposition that implied bias is 

implicated where the senior member and his subordinate 

constitute the two-thirds majority necessary to convict. 56 

M.J. at 175. But at the time of Appellant’s challenge for 

cause, only half of the panel was involved in any seniorsubordinate relationship because Appellant had not yet exercised 

his peremptory challenge on GySgt Hightower. Appellant also did 

not object to the final composition of the three-member panel on 

the basis that it violated Wiesen. As such, we review the 

military judge’s denial of the challenge from the perspective of 
United States v. Bagstad, No. 09-0429/MC 

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when Appellant objected and the military judge pronounced his 

ruling, not with hindsight and knowledge of the final 

composition of the panel. 

Appellant’s challenge simply asserted that Capt Stojka 

wrote GySgt Walston’s fitness report. Appellant did not ask any 

questions or make any argument on the record concerning the 

relationships between members on the panel, the general nature 

of relationships between company commanders and their gunnery 

sergeants, or the actual nature of the relationship between Capt 

Stojka and GySgt Walston beyond its senior-subordinate 

component. Under these circumstances, there is a lack of 

evidence in the record supporting a claim of implied bias. 

A challenge for cause is a contextual judgment that is 

determined through the totality of the factual circumstances. 

In this case, the military judge’s denial of the challenge for 

cause was in accord with this Court’s precedent that a member 

need not be dismissed solely on the basis of a ratings 

relationship with another member. We are confident that, viewed 

through the eyes of the public, the military judge’s denial of 

the challenge for cause against Capt Stojka did not create doubt 

as to the fairness of Appellant’s court-martial. 

IV. 

 The decision of the United States Navy-Marine Corps Court 

of Criminal Appeals is affirmed. 
United States v. Bagstad, No. 09-0429/MC 

 BAKER, Judge, with whom ERDMANN, Judge, joins (dissenting): 

There is no per se rule against a reporting senior and a 

subordinate sitting on the same court-martial panel. See United 

States v. Wiesen, 56 M.J. 172, 175 (C.A.A.F. 2001). The mere 

existence of a senior-subordinate relationship does not require 

a per se disqualification; rather, the decision rests on the 

context and is rooted in the public’s perception of the 

deference accorded to military officers. 

The problem in this case is that Appellant was tried and 

convicted by a three-member panel composed of a company 

commander, that commander’s company gunnery sergeant, and a 

senior enlisted member from another command. That is a 

structure that looks more like “company office hours” 

(nonjudicial punishment) than a military court-martial. 

There is a reason the Military Judges’ Benchbook includes 

voir dire questions regarding the reporting chain of command. 

Dep’t of the Army, Pam. 27-9, Legal Services, Military Judges’ 

Benchbook ch. 2 § V, para. 2-5-1 (2010). The reason is not 

found in a per se rule of exclusion; nor out of concern that 

military members might compromise their integrity for a better 

fitness report. Rather, some military relationships are just 

too close to sustain public or military confidence in the fair 

administration of justice where such members sit together. As 

stated in Wiesen: 
United States v. Bagstad, No. 09-0429/MC 

2

[t]he focus is on the perception or appearance of 

fairness of the military justice system. At the same 

time, this Court has suggested that the test for 

implied bias also carries with it an element of actual 

bias. Thus, there is implied bias when most people in 

the same position would be prejudiced. 

56 M.J. at 174 (citations and quotation marks omitted). That 

was the case in Wiesen and it is the case here. 

The problem with the majority’s analysis is that it treats 

the reporting chain of command like a civilian human resources 

department might treat it. The administrative chain of command 

is not a sterile concept, comprised of line diagrams and fitness 

reports. The analysis is divorced from the reality of military 

life. This case is not about fitness reports; it is about the 

special relationship, particularly in Marine Corps life, which 

exists in a company headquarters among the company commander, 

his executive officer, the first sergeant, and the company 

gunnery sergeant. 

The bond among these leaders may be strong or it may be 

weak. They may respect each other; they may not. It need not 

matter. Whatever the actual rapport among these leaders in a 

given company, the interplay is constant, the bond unique, and 

the opportunity for influence or resentment continuous. We 

should, however, recognize that these relationships permeate 

company grade life. The point is that in a Marine company the 
United States v. Bagstad, No. 09-0429/MC 

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relationship between the commanding officer and the company 

gunnery sergeant holds a special place. 

 The majority avoids the special nature of company grade 

relationships in the Marine Corps by asserting that defense 

counsel only objected to the nature of the “reporting 

relationship” between Captain Stojka and Gunnery Sergeant 

Walston. United States v. Bagstad, __ M.J. __ (3) (C.A.A.F. 

2010). In other words, defense counsel forfeited any objection 

that extended beyond the drafting of fitness reports, because he 

did not specifically raise “the Gunny objection.” This argument 

presumes that the military judge, a Marine lieutenant colonel, 

did not understand the relationship between a company gunnery 

sergeant and the company commander. Although a civilian judge 

may not be familiar with this relationship, a military judge 

does not need an explanation from counsel concerning “the 

general nature of relationships between company commanders and 

their gunnery sergeants.” Bagstad, __ M.J. at __ (7). 

 The majority also addresses the issue by arguing that at 

the time the defense objected the panel consisted of four 

members only two of which came from the same company. Id. at __ 

(6). Military judges are not required to be prescient, but they 

are required to think one step ahead. Here, the initial panel 

was composed of only five members. Thus, it should not have 

required omnipotence on the part of the military judge to 
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anticipate the possibility that two members of the same company 

headquarters could end up on a three-member panel.1

 

Whatever the public might perceive regarding the appearance 

of fairness in the military justice system, and I am confident 

“the public” would find the composition of this three-member 

panel dubious, I am certain that a junior enlisted Marine would 

think a panel composed like the one in this case was anything 

but fair. Therefore, I respectfully dissent. 

 

1

 As in Wiesen, 56 M.J. at 176, the record does not reflect an 

exigent or military circumstance limiting the pool of available 

members or requiring selection of these particular members to 

the panel.