This opinion is subject to revision before publication.

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

_______________

UNITED STATES

Appellee

v.

Nidal M. HASAN, Major

United States Army, Appellant

No. 21-0193

Crim. App. No. 20130781

Argued March 28, 2023—September 6, 2023

Military Judges: Gregory A. Gross and Tara A. Osborn

For Appellant: Major Bryan A. Osterhage and Jonathan F. Potter, Esq. (argued); Colonel Michael C. 

Friess, Major Christian E. DeLuke, Captain Carol K. 

Rim, and Captain Andrew R. Britt (on brief); Captain Roman W. Griffith. 

For Appellee: Major Jennifer A. Sundook and Captain Timothy R. Emmons (argued); Colonel Christopher B. Burgess, Lieutenant Colonel Jacqueline J. 

DeGaine, Captain Anthony J. Scarpati, and Captain 

A. Benjamin Spencer (on brief); Lieutenant Colonel 

Craig J. Schapira, Major Dustin L. Morgan, and 

Captain Karey B. Marren.

Chief Judge OHLSON delivered the opinion of the 

Court, in which Judge SPARKS, Judge MAGGS, 

Judge HARDY, and Judge JOHNSON joined. 

_______________
United States v. Hasan, No. 21-0193/AR

Opinion of the Court

2

Chief Judge OHLSON delivered the opinion of the 

Court.

Overview of the Case

In the early afternoon of November 5, 2009, Appellant, 

an Army psychiatrist, walked into the crowded Soldier 

Readiness Processing (SRP) center at Fort Hood, Texas.1

He suddenly opened fire with a semiautomatic handgun 

equipped with two laser sights, killing thirteen people and 

wounding thirty-one others.2 He was only stopped when 

law enforcement officers confronted him outside the building and shot him. As a result of being shot, Appellant is

now paralyzed from the waist down and is permanently 

confined to a wheelchair.

The evidence adduced at trial indicates that in the 

months leading up to November 5, Appellant carefully 

planned and prepared for his attack. In late-July 2009, he 

visited an off-post gun shop and asked the salesperson,

“What is the most technologically advanced handgun on 

the market?” The salesperson recommended a Fabrique 

Nationale (FN) 5.7, and he confirmed that this handgun 

model had a high magazine capacity. The salesperson also 

informed Appellant of the extensive damage a high velocity 

bullet fired by the FN 5.7 would cause after impacting the 

human body. Appellant purchased the recommended 

weapon, along with magazine extension kits to increase the 

firing capacity to thirty rounds per magazine. He also purchased laser sights and had them mounted on the weapon.

Appellant became a regular customer at the gun store, 

1 On May 9, 2023, Fort Hood was renamed 

Fort Cavazos. See Fort Cavazos Redesignation, 

https://home.army.mil/cavazos/about/fort-cavazos-redesignation

(last visited August 17, 2023). However, to maintain consistency 

with the briefs and case history, we will continue to refer to the 

site of the attack as Fort Hood.

2 Appellant shot thirty-one individuals but was charged with 

thirty-two specifications of attempted premeditated murder because he exchanged gunfire with Officer MT—a civilian police 

officer—who was not shot during the attack. 
United States v. Hasan, No. 21-0193/AR

Opinion of the Court

3

returning to buy boxes of ammunition and additional magazines with extension kits.

In October 2009, Appellant began target practice with 

his FN 5.7 at a local shooting range. He became proficient 

at hitting targets in the center of mass or in the head at a 

distance of 100 yards. On one such occasion, Appellant obtained guidance from the firearms instructor on how to 

practice “speed loading” of the weapon. Also in October, Appellant was informed by his superior that he was selected 

to deploy to Afghanistan the following month and that he 

was required to process through the SRP center prior to his 

deployment. As noted by the United States Army Court of 

Criminal Appeals (ACCA) in its opinion, “Appellant expressed to a co-worker his reluctance to deploy and stated, 

‘They’ve got another thing coming if they think they are 

going to deploy me.’ ” United States v. Hasan, 80 M.J. 682, 

692 (A. Ct. Crim. App. 2020) (en banc).

Appellant visited the SRP center between seven and 

nine times in the two weeks prior to the attack. A servicemember who witnessed these unscheduled visits to the 

SRP center testified that they “didn’t have a purpose,” and 

he reminded Appellant that he was not supposed to return 

to the SRP center until the completion of his physical.

In the early afternoon of November 5, 2009, Appellant, 

concealing his FN 5.7 and nearly 400 rounds of ammunition, entered the SRP center. Numerous soldiers were inside the building. Most of them were either waiting to meet 

with medical personnel, who were located in cubicles, to see

if they were medically cleared to deploy or, for those soldiers returning from deployment, to discuss any medical 

concerns. Unprompted, Appellant walked up to a civilian 

data-entry clerk, telling her that she was needed elsewhere. As soon as the clerk departed the area Appellant 

pulled out his FN 5.7 handgun, yelled “Allahu Akbar!” and 

began shooting at his fellow soldiers using speed reloading 

techniques. From his initial position Appellant was able to 

view the two exits from the building. A witness testified 

that Appellant was “firing at soldiers running out the front 

door. He was firing at soldiers running out the back door.”
United States v. Hasan, No. 21-0193/AR

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4

As soldiers tried to take cover in and around the cubicles, Appellant walked across the facility shooting several 

soldiers in the back as they tried to exit the building. Another witness described the scene:

I [was] just watching him shoot and at this time 

the room was filled with gun smoke and I see the 

weapon that he had, had a green light and a red 

laser and it’s going through the haze and the gunfire just continued to go off. . . . [H]e just kind of 

just walked back and forth and was just shooting 

us for what felt like an eternity.

Eventually Appellant left the SRP center to pursue fleeing 

soldiers. He then tried to enter another building but the 

door was locked. When law enforcement officers arrived, 

they located Appellant outside the SRP center building. 

Appellant refused an order to drop his weapon and a gunfight ensued, resulting in a law enforcement officer being 

shot multiple times. Appellant stood over the wounded officer and attempted to shoot her again at point-blank range

but his weapon malfunctioned. Appellant was then shot in 

the chest by another law enforcement officer and taken into 

custody.

On July 6, 2011, the convening authority referred the 

charges against Appellant to a general court-martial as a 

capital case. Nearly two years later—and two months before the start of trial—Appellant elected to represent himself during the proceedings. However, standby counsel 

were present and were prepared to provide assistance if 

Appellant requested it.

At trial before a panel of officer members sitting as a 

general court-martial, Appellant made an opening statement in which he immediately acknowledged the following:

The evidence will clearly show I am the 

shooter. . . . 

. . . .

But the evidence presented during this trial 

will only show one side. The evidence will show 

also show [sic] that I was on the wrong side [of] 
United States v. Hasan, No. 21-0193/AR

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5

America’s war on Islam. But then I switched sides, 

and I made mistakes.

Appellant also informed the panel members during his 

opening statement that he was “an imperfect Muslim[] 

trying to establish the perfect religion of Almighty God, as 

supreme on the land despite the disbeliever’s hatred for it,” 

and he “apologize[d] for any mistakes [he] made in this 

endeavor.”

Following opening statements the prosecution elicited 

multiple days of witness testimony on the merits. However, 

Appellant did not put on a case-in-chief. He also did not 

make a closing argument. After this trial on the merits, the 

panel convicted Appellant of thirteen specifications of premeditated murder, and thirty-two specifications of attempted premeditated murder in violation, respectively, of 

Articles 118 and 80, Uniform Code of Military Justice 

(UCMJ), 10 U.S.C. §§ 918, 880 (2006).

The sentencing phase of the trial lasted four days. 

Again, although the Government put on a sentencing case, 

Appellant rested his case without putting on any witness 

testimony or making any sentencing argument. The panel

sentenced Appellant to death, dismissal from the service, 

and forfeiture of all pay and allowances.

With regard to the submission of clemency matters, Appellant was initially represented by counsel but he ultimately elected to proceed pro se. Upon consideration of Appellant’s submission, the convening authority approved the 

adjudged sentence.

Appellant has been represented by counsel during his 

appeals. The lower appellate court—ACCA—affirmed the 

findings and sentence. Hasan, 80 M.J. at 721. That court 

later denied Appellant’s motion for reconsideration. Hasan 

v. United States, No. ARMY 20130781, 2021 CCA LEXIS 

114, at *1 (A. Ct. Crim. App. Mar. 15, 2021) (en banc) (order) (unpublished).

Because Appellant’s affirmed sentence includes death, 

his case is now before this Court for mandatory review. Article 67(a)(1), UCMJ, 10 U.S.C. § 867(a)(1) (2012). 
United States v. Hasan, No. 21-0193/AR

Opinion of the Court

6

Appellant assigns forty-nine issues—eleven briefed and 

thirty-eight unbriefed—and personally asserts another issue pursuant to United States v. Grostefon, 12 M.J. 431 

(C.M.A. 1982). Via these issues, he is seeking to reverse the 

findings and sentence in this case or, in some instances, to 

obtain other relief. However, after carefully considering his 

raised issues and the record, we conclude that Appellant is 

not entitled to any relief. We therefore affirm the judgment 

of the lower court. We now turn to the issues in their presented order.

Issue I: Whether the Military Judge Erred in 

Allowing Appellant to Represent Himself Because 

Appellant’s Waiver of Counsel Was Not Voluntary 

or Knowing and Intelligent

Appellant argues that his waiver of counsel and 

decision to proceed pro se was involuntary—and therefore 

invalid under the Sixth Amendment—because he was 

confronted by a “constitutionally repugnant choice: go to 

trial with counsel who were diametrically opposed to his 

fundamental objective or go alone.” Brief for Appellant 

(Final Copy) at 40, United States v. Hasan, No. 21-0193 

(C.A.A.F. May 5, 2022) [hereinafter Appellant’s Brief]. We 

conclude that the facts and the law do not support 

Appellant’s contention.

I. Background

When Appellant was arraigned in July 2011, he was 

represented by three military defense counsel: Lieutenant 

Colonel (LTC) KP, Major (MAJ) CM, and Captain (CPT) 

JO. Early in the pretrial stage of his court-martial, Appellant released CPT JO, who was replaced by MAJ JM. This 

team of counsel represented Appellant through more than 

twenty pretrial sessions.

As trial approached, however, an apparent divergence 

of views emerged between the preferred trial strategies of 

Appellant and his counsel. On May 17, 2013, Appellant’s 

defense team presented him with a memorandum explaining their intended trial strategy. The memorandum stated 

that the defense team intended to argue that Appellant did 
United States v. Hasan, No. 21-0193/AR

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7

not have a “premeditated design to kill” at the time he committed the shootings. Specifically, Appellant’s defense 

team told him that they intended to show that he had been:

so affected by religious passion that [he] could not 

or did not consider the consequences of the act 

with a cool mind. In other words, [he was] so eager 

to get right with God, so afraid of the Hellfire for 

both [himself] and [his] parents, and so convinced 

that [he] had to do something drastic to please 

God, that [he] believed [he was] taking the right 

action.

In other words, counsel wanted to try to demonstrate at 

trial that Appellant was “so consumed by religious passion 

that [he] believed that if an act pleased God, there was no 

real choice about whether to do the act,” and thus Appellant lacked premeditation in regard to his offenses.

Instead of agreeing to pursue this “religious passion” 

theory, Appellant wanted to pursue a strategy that would 

attempt to establish that his attack on his fellow soldiers 

was justified. Specifically, he desired to argue that because 

the war in Afghanistan was illegal, by shooting U.S. soldiers preparing to deploy to that country he was actually 

acting in the defense of others—that is, protecting members of the Taliban such as its leader, Mullah Omar, from 

imminent harm at the hands of U.S. soldiers. Appellant 

and his military defense counsel had previously discussed 

such a strategy. However, after researching the issue, his 

counsel advised Appellant that this theory did not constitute a legally viable defense under the facts of the case.

After reviewing the memorandum and enclosures presented to him, Appellant wrote at the bottom of the memorandum, in pertinent part: “Based on these documents as 

well as discussions with [LTC KP] I deem it necessary to 

represent my self [sic].” The same day, Appellant filed a 

notice with the court that he wanted to waive counsel and 

proceed pro se.

At the next Article 39(a), UCMJ, 10 U.S.C. § 839(a) 

(2012 ed.), session, the military judge engaged in a colloquy 
United States v. Hasan, No. 21-0193/AR

Opinion of the Court

8

with Appellant to discuss his request. As summarized by 

the lower court, the military judge:

established [A]ppellant had discussed the request 

with his counsel prior to signing it. She then readvised [A]ppellant of his right to counsel, to include his right to request individual military 

counsel (IMC)[3] or hire civilian counsel at his own 

expense. Appellant indicated he understood his 

right to counsel and still no longer wished to be 

represented by his three military counsel or any 

other attorney.

Hasan, 80 M.J. at 694.

After discussing with Appellant his physical and mental 

condition vis-à-vis representing himself, the military judge 

ordered the Government to have him medically examined.

At a subsequent session of court, the military judge received the report and testimony of the physician who examined Appellant. The military judge also conducted an 

extended discussion with Appellant about his wish to proceed pro se, which is typically known as a “Faretta colloquy.” Faretta v. California, 422 U.S. 806 (1975). As summarized by the ACCA:

 Throughout the colloquy, [A]ppellant consistently indicated he understood the military judge, 

that he understood the risks and limitations, and 

that he wanted to proceed with his self-representation. He affirmed his belief that he was physically and mentally capable to review the evidence 

and prepare for trial, and he stated he was confident he would be ready to proceed to trial. Appellant affirmed his decision was not the result of any 

threats or force and was made of his own free will.

Moreover, [A]ppellant expressed a willingness to 

maintain LTC KP, MAJ CM, and MAJ JM as his 

standby counsel throughout the trial, so they 

3 “Individual military counsel” is a military counsel of an accused’s own selection if that counsel is “reasonably available” as 

determined under regulations prescribed by the Secretary of the 

military department in which the accused serves. Article 

38(b)(3)(B), (b)(7), UCMJ, 10 U.S.C. § 838(b)(3)(B), (b)(7) (2006).
United States v. Hasan, No. 21-0193/AR

Opinion of the Court

9

could assist him with legal research and provide 

advice as needed or requested. 

Hasan, 80 M.J. at 696.

The following brief excerpts from the lengthy exchange 

between the military judge and Appellant provide additional insights:

MJ: . . . . Do you understand that you would be 

better off with a trained lawyer who is familiar 

and knows all the procedures, the Rules of Evidence, the Military Rules of Evidence, the Rules 

for Courts-Martial and the Rules of Law than you 

would be representing yourself?

ACC: I understand.

MJ: Basically what I’m telling you, Major Hasan, 

as a general rule, representing yourself is not a 

good policy.

ACC: You’ve made that quite clear.

. . . .

MJ: I’m going to advise you again, Major Hasan, I 

know you said earlier that I’ve made this perfectly 

clear, but I’m going to repeat it again. I think it’s 

unwise for you to represent yourself. I think it’s 

an unwise decision and I strongly urge you not to 

represent yourself. But knowing all that I’ve told 

you, do you still want to act as your own lawyer?

ACC: Yes, ma’am.

Ultimately, the military judge was satisfied with Appellant’s responses during the colloquy and, in conjunction 

with her review of Appellant’s medical examination as well 

as Appellant’s Rule for Courts-Martial (R.C.M.) 706 sanity 

board report, found that Appellant’s waiver of counsel was 

knowing, intelligent, and voluntary. She therefore approved his request to proceed pro se. However, the military 

judge appointed his defense team to serve as standby counsel, as reflected in the following passage from the record of 

trial:

MJ: . . . . All three of the currently detailed counsel . . . will remain as standby counsel, with [two 

of the lawyers] remaining at counsel table, and 
United States v. Hasan, No. 21-0193/AR

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10

[one of the lawyers] remaining in the spectator 

gallery. Standby counsel will be noticed in all communications to and from the court. They will attend all proceedings and will be available to Major 

Hasan for consultation and advice. 

Counsel may provide you, Major Hasan, with advice and procedural instructions. They will not do 

anything without your agreement. However, they 

are available to act as your lawyer or assist you at 

any time. At any time during the trial you feel 

that you could benefit from advice and you want 

to take a break to talk to your counsel about something[,] let me know and I will permit it. Do you 

understand that?

ACC: I do.

On July 2, 2013, after the military judge entered not 

guilty pleas on behalf of Appellant, she sought clarification 

on the record about whether Appellant still wanted to represent himself because Appellant had mentioned the possibility of retaining a civilian attorney. In response to inquiries from the military judge, Appellant eventually stated, “I 

want to proceed pro se,” but he also sought to reserve the 

right to retain civilian counsel “if after talking to [that 

counsel], something fruitful evolves.”

At the next session of court on July 9, 2013, Appellant 

stated that he met with civilian counsel and if the court 

allowed him to pursue the “defense of others” defense, he 

would elect to be represented by that civilian attorney. The 

military judge stated: “The court’s ruling is that the defense of others [defense] fails as a matter of law. Understanding that, do you still wish to proceed pro se?” Appellant responded, “Yes, I do.”

Prior to the sentencing phase of his trial, the military 

judge engaged in the following colloquy with Appellant:

MJ: Do you still wish to proceed pro se, Major Hasan, knowing everything that I’ve told you 

throughout the trial about the dangers and disadvantages of self-representation; the nature of the 

proceedings at this stage of the trial; and the possible punishments you face?
United States v. Hasan, No. 21-0193/AR

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ACC: I do.

MJ: Do you understand, as I told you on Friday, 

that this is the stage of the trial where the panel 

decides whether you should live, or whether you 

should die? 

Do you understand that?

ACC: I understand.

MJ: And you understand that you’re staking your 

life on the decisions that you make?

ACC: I do.

MJ: Is that a free and voluntary choice by you?

ACC: It is.

MJ: Again, I think it is unwise for you to represent 

yourself, but that is your choice, and you’re competent to make that choice. Is that a free and voluntary choice on your part?

ACC: It is.

After this colloquy, the military judge “affirm[ed on the 

record her] previous findings—the accused may continue to 

represent himself pro se.” 

On appeal, Appellant argues that his “choice to proceed 

pro se was no choice at all,” so the “waiver of counsel was 

involuntary.” Appellant’s Brief at 4, 48. Appellant asserts 

that he only elected to proceed pro se because his counsel 

intended to put on a defense that would have conceded 

guilt whereas he wanted to maintain his innocence by 

asserting the “defense of others” defense. Specifically, he

contends that his “defense team . . . intend[ed] to attack 

premeditation by relying on ‘religious fervor,’ ” a defense 

which “contradicted [A]ppellant’s deeply held religious 

beliefs.” Id. at 49. In Appellant’s view, his trial defense

team’s insistence on pursuing their preferred trial strategy 

over his objection offered “a constitutionally repugnant 

choice” and infringed on his “constitutionally ‘protected 

autonomy right’ to control the objectives of his defense.” Id.

at 40, 43 (quoting McCoy v. Louisiana, 138 S. Ct. 1500, 

1511 (2018)). As a result, he avers that his waiver of 

counsel was not truly voluntary but rather the result of “an 
United States v. Hasan, No. 21-0193/AR

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12

impasse with his detailed counsel.” Id. at 50. Appellant also 

contends that the military judge failed to perform her

“duty . . . to inquire into [A]ppellant’s dissatisfaction with 

counsel before accepting [A]ppellant’s waiver” when the 

conflict between Appellant and his standby counsel became 

apparent. Id.

Arguing that Appellant made a knowing, voluntary and 

intelligent waiver of counsel, the Government claims that 

“Appellant’s argument is built upon . . . a faulty premise” 

that he wanted to maintain his innocence. Brief for Appellee at 23, United States v. Hasan, No. 21-0193, (C.A.A.F. 

Oct. 20, 2022) [hereinafter Appellee’s Brief]. According to 

the Government, both Appellant’s “defense of others” claim

(which the military judge rejected as a matter of law) and 

trial defense counsel’s religious fervor strategy entailed admitting that Appellant committed the shooting at Fort 

Hood. Therefore, the Government contends, rather than 

differing about fundamental objectives, Appellant and his 

counsel merely “differed in strategy: Appellant wanted to 

argue that the killing was justified, and his detailed counsel wanted to attack one of the elements of the offense, 

namely premeditation.” Id. at 24.

The Government also finds it significant that at trial 

“Appellant did not clearly and vociferously object to his detailed counsel’s planned defense,” and thus did not state on 

the record that counsel’s strategy violated his religious beliefs. Id. at 26. The Government further argues that “Appellant did not have good cause to substitute counsel because his detailed counsel were well-prepared and 

competent,” and even substitute counsel “would not have 

given Appellant what he wanted: to present a defense that 

the military judge already ruled could not be presented.” 

Id. at 28. The Government’s final point is that the military 

judge had sufficient information to conclude Appellant’s

waiver of counsel was voluntary.

II. Standard of Review

We review de novo whether an accused voluntarily 

waived his right to counsel. See United States v. Rosenthal, 
United States v. Hasan, No. 21-0193/AR

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62 M.J. 261, 262 (C.A.A.F. 2005) (per curiam) (Whether a 

waiver of a right was “knowing and intelligent” is “a question of law [assessed] under a de novo standard of review.”); 

see also United States v. Schaefer, 13 F.4th 875, 886 (9th 

Cir. 2021) (“Whether a defendant knowingly and voluntarily waives his Sixth Amendment right to counsel is a mixed 

question of law and fact reviewed de novo.” (citation omitted) (internal quotation marks omitted)).

III. Applicable Law

A. The Sixth Amendment Right to Counsel

The Sixth Amendment provides, in relevant part, that 

“[i]n all criminal prosecutions, the accused shall enjoy the 

right . . . to have the Assistance of Counsel for his defence.” 

U.S. Const. amend VI. “That right includes the right to 

waive counsel and to represent oneself.” United States v. 

Roof, 10 F.4th 314, 351 (4th Cir. 2021) (citing Faretta, 422 

U.S. at 834-36). When an accused is represented by counsel, “a defendant has the right to insist that counsel refrain 

from admitting guilt.” McCoy, 138 S. Ct. at 1505.

“[I]t is the defendant’s prerogative, not counsel’s, to decide on the objective of his defense . . . .” Id. However, decisions such as “what arguments to pursue, what evidentiary 

objections to raise, and what agreements to conclude regarding the admission of evidence,” and every other decision properly considered to be “[t]rial management” are left 

to counsel. Id. at 1508 (internal quotation marks omitted) 

(quoting Gonzalez v. United States, 553 U.S. 242, 248 

(2008)). Included within counsel’s purview is resolving a 

“strategic dispute[] about whether to concede an element of 

a charged offense.” Id. at 1510. “Some decisions, however, 

are reserved for the client—notably, whether to plead 

guilty, waive the right to a jury trial, testify in one’s own 

behalf, and forgo an appeal.” Id. at 1508. “Autonomy to decide . . . the objective of the defense . . . belongs in this latter category.” Id.

B. Voluntary Waiver of Counsel

“While the Constitution does not force a lawyer upon a 

defendant, it does require that any waiver of the right to 
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14

counsel be knowing, voluntary, and intelligent.” Iowa v. Tovar, 541 U.S. 77, 87-88 (2004) (citations omitted) (internal 

quotation marks omitted). “The [military’s] current standards regarding the right of self-representation based on 

Faretta . . . are set forth in RCM 506(d) . . . .” United States 

v. Mix, 35 M.J. 283, 285 (C.M.A. 1992). This rule provides:

The accused may expressly waive the right to be 

represented by counsel and may thereafter 

conduct the defense personally. Such waiver shall 

be accepted by the military judge only if the 

military judge finds that the accused is competent 

to understand the disadvantages of selfrepresentation and that the waiver is voluntary

and understanding. The military judge may 

require that a defense counsel remain present 

even if the accused waives counsel and conducts 

the defense personally. The right of the accused to 

conduct the defense personally may be revoked if 

the accused is disruptive or fails to follow basic 

rules of decorum and procedure.

R.C.M. 506(d) (2008 ed.) (emphasis added).

To find a valid waiver of counsel, the Supreme Court 

requires that the accused “voluntarily exercise[d] his 

informed free will.” Faretta, 422 U.S. at 835. Our precedent 

provides little guidance on how to determine whether an 

accused’s choice to represent himself was voluntary, but 

the federal circuit courts have addressed this issue in some 

detail. “[T]he voluntariness of a waiver is measured by 

reference to the surrounding circumstances.” Pouncy v. 

Palmer, 846 F.3d 144, 161 (6th Cir. 2017). Thus, the focus 

is often on “mistreatment or coercion of the [accused],” i.e., 

whether the accused was “forced, threatened, or pressured 

into waiving his right to counsel.” United States v. Owen, 

963 F.3d 1040, 1049, 1051 (11th Cir. 2020); Wilkins v. 

Bowersox, 145 F.3d 1006, 1012 (8th Cir. 1998) (“a finding 

of coercion bears upon the voluntary aspect of the waiver”); 

see also Moran v. Burbine, 475 U.S. 412, 421 (1986) 

(indicating a waiver, in the context of Miranda4 warnings,

4 Miranda v. Arizona, 384 U.S. 436 (1966).
United States v. Hasan, No. 21-0193/AR

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15

is “voluntary in the sense that it was the product of a free 

and deliberate choice rather than intimidation, coercion, or 

deception”).

Aside from this traditional concern, the United States 

Courts of Appeals have further stated that “the ‘Hobson’s 

choice’ between proceeding to trial with an unprepared 

counsel or no counsel at all may violate the right to counsel” 

because that is no choice at all. United States v. Washington, 596 F.3d 926, 938 (8th Cir. 2010); see also Pouncy, 846 

F.3d at 161; United States v. Padilla, 819 F.2d 952, 955 

(10th Cir. 1987) (“A defendant forced to choose between incompetent or unprepared counsel and appearing pro se 

faces a dilemma of constitutional magnitude.” (citation 

omitted) (internal quotations marks omitted)). In contrast, 

a simple disagreement with counsel about “a certain line of 

defense” is not enough to establish involuntary waiver of 

counsel. Sanchez v. Mondragon, 858 F.2d 1462, 1466 (10th 

Cir. 1988).

IV. Discussion

Despite his phrasing of this issue, Appellant does not 

actually challenge the knowing or intelligent nature of his 

waiver of counsel. We therefore focus on the voluntariness 

of Appellant’s waiver. And for the reasons cited below, we 

conclude that Appellant voluntarily waived his right to 

counsel and validly elected to proceed pro se.

We preliminarily note that the typical hallmarks of a 

voluntary waiver of counsel are present here. In the colloquy with the military judge, Appellant affirmed that his 

decision was not the result of any threats or force and was 

made of his own free will. Further, there is nothing in the 

record indicating that threats, coercion, or physical or psychological force were involved. Moreover, Appellant did not 

seek to replace members of the last iteration of his defense 

team but instead simply “moved to represent himself without complaining to the court that his . . . counsel was incompetent, unprepared, or otherwise unable to provide adequate representation.” United States v. Patterson, 140 
United States v. Hasan, No. 21-0193/AR

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16

F.3d 767, 776 (8th Cir. 1998). And finally, Appellant signed 

a document waiving his right to counsel. 

But Appellant cites to a different concern. The starting 

premise of Appellant’s involuntary waiver claim before this 

Court is that if trial defense counsel had continued to represent him, “there would have been a clear constitutional 

violation under McCoy.” Appellant’s Brief at 48. Specifically, he argues as follows: “Appellant’s waiver of counsel 

was not voluntary. Going into trial, he desired to maintain 

his innocence. By contrast, his defense team sought to admit his guilt.” Id. at 40. But Appellant’s premise is flawed 

and his reliance on McCoy is misplaced.

To begin with, Appellant’s claim that at trial he “desired 

to maintain his innocence,” id., is belied by the record. 

While Appellant initially might have wanted to maintain 

his innocence by pursuing a “defense of others” defense, the 

military judge prohibited him from pursuing that strategy, 

finding it failed as a matter of law. After that ruling, 

Appellant made no effort to assert his innocence.5 Instead, 

with full knowledge that the military judge had ruled that 

the “defense of others” defense failed, he still openly 

admitted that he was the shooter. Indeed, at the very 

beginning of his opening statement to the panel members, 

Appellant flatly declared: “The evidence will clearly show 

5 Appellant argues that after “his pleas [of guilty] were refused and he was compelled into a contested trial, he resolved to 

maintain his innocence.” Reply Brief on Behalf of Appellant at 

1, United States v. Hasan, No. 21˗0193 (C.A.A.F. Jan. 3, 2023)

(footnote omitted) [hereinafter Reply Brief]. He also challenges 

the Government’s argument that he did not want to maintain 

his innocence and instead wanted only to pursue a meritless “defense of others” claim as a “false distinction.” Id. at 2. As a general matter, we agree that there is no legal distinction between 

one who is factually innocent because he did not commit the actus reus of a crime and one who has a valid justification for committing what would otherwise be a criminal act. However, that 

distinction is not applicable in this case where, under the facts 

and circumstances, Appellant’s claim of justification (defense of 

others) failed as a matter of law. See infra issue raised pursuant 

to Grostefon.
United States v. Hasan, No. 21-0193/AR

Opinion of the Court

17

that I am the shooter.” Then, after making this damning 

confession, Appellant made no discernible effort to justify 

or explain the shootings or to otherwise absolve himself of 

guilt. For example, with limited exceptions, Appellant did 

not cross-examine prosecution witnesses; he did not put on 

a case-in-chief; and he waived closing argument. As can be 

seen then, Appellant’s actions at trial undermine his 

argument on appeal that he “desired to maintain his 

innocence.” Id. at 40, 48.

Next, the facts in McCoy are distinguishable from the 

instant case. In McCoy, the defendant wanted to argue that 

he was not the person who killed his family. 138 S. Ct. at 

1506. His counsel, on the other hand, wanted to argue that 

the defendant did indeed kill his family but that he lacked 

the criminal intent to be convicted of first-degree murder. 

Id. at 1506 n.1. The Supreme Court held that McCoy’s representation by counsel who wanted to pursue a strategy admitting the killings violated his constitutionally “protected 

autonomy right,” noting that a defendant “may wish to 

avoid, above all else, the opprobrium that comes with admitting” to killing someone. Id. at 1508, 1511. But as 

demonstrated above, in the instant case Appellant had no 

compunction about admitting that he had shot his fellow 

soldiers on November 5, 2009. As noted by the Government 

in its brief, “This case does not present an instance, as was 

present in McCoy, where the appellant desired to deny that 

he committed the charged acts. . . . Both Appellant and his 

defense counsel wanted to mount their defenses by admitting that Appellant committed the November 5, 2009 

shooting.” Appellee’s Brief at 24.

Moreover, the Supreme Court’s broader holding in 

McCoy that “a defendant has the right to insist that counsel 

refrain from admitting guilt, even when counsel’s 

experience-based view is that confessing guilt offers the 

defendant the best chance to avoid the death penalty,” 

138 S. Ct. at 1505, is inapplicable to the instant case. As 

discussed at greater length infra in Issue IV, neither 

Appellant nor his trial team were legally empowered to 

plead guilty in this case.
United States v. Hasan, No. 21-0193/AR

Opinion of the Court

18

And finally, upon close inspection Appellant’s argument

fails when he asserts that he faced “ ‘a Hobson’s choice’ ” 

when he was forced to decide between accepting his counsel’s objectionable defense strategy or proceeding pro se. 

Appellant’s Brief at 47 (citation omitted). In support of his 

position, Appellant states that his trial team’s “planned defense” would have gone against Appellant’s wishes by “contradict[ing A]ppellant’s deeply held religious beliefs” and 

“paint[ing him] as a religious fanatic.” Id. at 49. However, 

after he informed the trial court of his intent to waive counsel and represent himself, the military judge engaged in 

the following exchange with Appellant:

MJ: Have you tried to talk to any other lawyer 

about your case?

ACC: No.

MJ: Would you like to talk to another lawyer 

about this case?

ACC: Not at this point. I would like to reserve the 

option to have feedback from another lawyer if I 

choose so, but not at this point.

MJ: At this point you don’t wish to talk to another 

lawyer about this case?

ACC: That’s correct.

MJ: Do you wish to talk to another lawyer about 

this colloquy that we’re having now about representing yourself? 

ACC: No, ma’am.

MJ: Have you understood everything that I’ve told 

you and everything that I’ve asked you?

ACC: Yes, ma’am.

This exchange demonstrates that Appellant’s waiver 

was not exclusively linked to his trial defense team’s legal 

abilities, preparedness, or religious fervor defense because 

Appellant denied interest in having any counsel represent 

him or talking to any counsel about his case.6 Simply 

6 Because we conclude that Appellant’s waiver of counsel was 

not exclusively tied to his disapproval of his trial defense 
United States v. Hasan, No. 21-0193/AR

Opinion of the Court

19

stated, by rejecting the military judge’s offer to explore obtaining new counsel, Appellant foreclosed his ability to successfully argue on appeal that he was confronted with “a 

constitutionally repugnant choice: go to trial with counsel 

who were diametrically opposed to his fundamental objective or go alone.” Id. at 40.

Similarly, in arguing against the voluntariness of his 

waiver of counsel, Appellant’s contention that the military 

judge failed in her duty “to inquire into [A]ppellant’s dissatisfaction with counsel before accepting [A]ppellant’s 

waiver” misses the mark.7 Id. at 50. It is true that the military judge disclaimed any interest in wanting to know why

Appellant was dissatisfied with counsel. (“I don’t want to 

know why you don’t want to be represented by your counsel 

anymore, but is that a strategic decision on your part?”) 

However, the Supreme Court and this Court have not 

“specif[ied] what procedural undertakings [are] necessary 

to satisfy” whether an accused has waived counsel. Mix, 35 

M.J. at 286. In Tovar, the Supreme Court, while discussing 

the related issue of whether waiver of counsel was intelligent, enunciated: “We have not . . . prescribed any formula 

counsel’s religious fervor defense and because he disclaimed 

wanting any counsel, we reject his argument that the military 

judge was required to appoint substitute counsel.

7 Appellant identifies the following events as creating a duty

on the part of the military judge to inquire further into dissatisfaction with counsel: (1) the precipitating circumstances that led 

to Appellant’s dissatisfaction with counsel before accepting Appellant’s waiver; (2) the facts that led counsel to defy court orders to provide assistance; (3) when counsel “declared [A]ppellant was working in concert with [the] prosecution”; and (4) 

when Appellant “clearly vacillated on his pro se status” on the 

eve of trial. Appellant’s Brief at 50. But since we find no duty to 

inquire in the first place, the military judge was not required to 

reopen the colloquy. See United States v. Hantzis, 625 F.3d 575, 

580-81 & n.2 (9th Cir. 2010) (citing cases for the proposition that 

“no federal appellate court has held that renewed Faretta warnings are required at each subsequent court proceeding”).
United States v. Hasan, No. 21-0193/AR

Opinion of the Court

20

or script to be read to a defendant who states that he elects 

to proceed without counsel.” 541 U.S. at 88. 

This Court has previously recognized that the federal 

circuit courts “are split as to the exact extent of the inquiry 

necessary to ensure” waiver of counsel by the trial judge 

and has declined to identify “what type of inquiry is required.” Mix, 35 M.J. at 286. In Mix, we were satisfied that 

the military judge conducted the appropriate waiver inquiry to determine that the accused’s waiver of counsel was 

knowing, intelligent, and voluntary because the military 

judge advised appellant “on several occasions of the benefits of a lawyer and the disadvantages of representing oneself.” Id. This Court proposed questions to ask an accused 

in future cases, id. at 286, 289-90, and indeed those questions were incorporated into the Military Judges’ Benchbook, see Dep’t of the Army, Pam. 27-9, Legal Services, ch. 

2 § 2–7–2 (Jan. 1, 2010). Notably, military case law and the 

Benchbook do not direct the military judge to inquire about 

the nature of the dissatisfaction with counsel. See id.

Therefore, under military law, the military judge did not 

have a duty to inquire into the reasons behind Appellant’s 

dissatisfaction with counsel.

Appellant identifies cases from the United States 

Courts of Appeals for the Third and Tenth Circuits that 

seemingly do impose such a duty.8 See, e.g., United States 

v. Peppers, 302 F.3d 120, 132 (3d Cir. 2002); Sanchez, 858 

F.2d at 1466. But notably, Appellant has not identified any 

other federal circuit courts that have adopted this position. 

Our independent research has identified two more circuits 

that also have ostensibly imposed such a duty. United 

States v. Wright, 923 F.3d 183, 188-89 (D.C. Cir. 2019); 

United States v. Seale, 461 F.2d 345, 359 (7th Cir. 1972). 

However, we are not required to follow these circuit courts 

on this point. See United States v. Tovarchavez, 78 M.J. 

8 Appellant does cite a United States Court of Appeals for the 

Ninth Circuit case as well—Garcia v. Bunnell, 33 F.3d 1193, 

1199 (9th Cir. 1994)—but that case was about conflicts of interest, not conflicts of strategy or trial objectives.
United States v. Hasan, No. 21-0193/AR

Opinion of the Court

21

458, 466 (C.A.A.F. 2019) (acknowledging this Court can 

give “persuasive weight to the decisions of the federal circuit courts of appeal” (emphasis added)). And as we explained above, the Supreme Court and military law have 

not imposed a duty in a Faretta colloquy to inquire into any 

disagreement between an accused and his counsel. Accordingly, given Appellant’s unwavering position on self-representation and in light of the other points raised above, the 

military judge did not need to inquire further into why Appellant wished to proceed pro se.

The circumstances of this case demonstrate that Appellant “voluntarily elected to [represent himself] in order to

pursue his own unique vision of how the case should be defended.” United States v. Volpentesta, 727 F.3d 666, 676 

(7th Cir. 2013). We thus “reject his current efforts to characterize as ‘involuntary’ a choice that was entirely of his 

own making.” Id.

Issue II: Whether the Total Closure of the Court 

over Appellant’s Objection Violated His

Right to a Public Trial

At the outset, it is important to note that the reference 

to the “total” closure of the court does not refer to the closure of the courtroom during all of Appellant’s court-martial proceedings. Rather, it refers to the fact that the military judge closed the courtroom to all spectators—as well 

as to the bailiffs and Government counsel—during one 

thirty-four minute Article 39(a), UCMJ, session.9

9 See United States v. Thompson, 713 F.3d 388, 395 (8th Cir.

2013) (“Whether a closure is total or partial . . . depends not on 

how long a trial is closed, but rather who is excluded during the 

period of time in question.”). Here, the only people present in the 

courtroom for the closed proceeding were the military judge, the 

court reporter, Appellant, and his three standby counsel. See

also United States v. Allen, 34 F.4th 789, 797 (9th Cir. 2022) (“A 

total closure of the courtroom means that ‘all persons other than 

witnesses, court personnel, the parties and their lawyers are excluded for the duration of the hearing.’ ” (citation omitted));

United States v. Simmons, 797 F.3d 409, 413 (6th Cir. 2015) (“a 

total closure involves excluding all persons from the courtroom 
United States v. Hasan, No. 21-0193/AR

Opinion of the Court

22

Appellant challenges this decision by the military judge, 

arguing that her ruling violated both the Sixth Amendment and R.C.M. 806. He essentially makes three criticisms of the military judge’s closure decision: (1) she failed 

to make findings before closing the courtroom; (2) her findings, once made, were inadequate and conclusory; and 

(3) she failed to consider reasonable alternatives to the 

courtroom closure. Appellant further claims that this improper closure constitutes structural error, which warrants

automatic reversal.

We will assume without deciding that the military 

judge did not comply with the relevant constitutional and 

regulatory standards when she briefly closed Appellant’s 

court-martial. However, as explained below, under the circumstances of this case any noncompliance with these 

standards by the military judge does not entitle Appellant 

to the remedy that he seeks—reversal of the findings and 

sentence and a retrial.

I. Background

During trial, Appellant’s conduct led standby counsel10

to believe that Appellant was “working in concert . . . with 

the prosecution towards a death sentence.” Because 

standby counsel concluded that “providing even procedural 

assistance” under these circumstances was “contrary to 

[counsel’s] professional obligations,” they filed a motion—

which they served on Government counsel—seeking to 

“withdraw from assisting [Appellant] in any manner.” Included in this motion was an enclosure containing counsel’s 

entire mitigation case. Before Government counsel had the 

opportunity to review this enclosure, however, the military 

judge sealed the motion and all its enclosures.

The military judge then held an Article 39(a), UCMJ,

session on the motion. At the outset, Appellant requested 

for some period” (citing Judd v. Haley, 250 F.3d 1308, 1316 (11th 

Cir. 2001)).

10 There were three standby counsel at the time of the court 

closure—LTC KP, LTC CM, and MAJ JM. 
United States v. Hasan, No. 21-0193/AR

Opinion of the Court

23

“an in camera hearing” to discuss the motion. Despite recognizing “the sensitivities here,” the military judge began

the hearing in open court while trying to limit the public 

discussion of details of the conflict between standby counsel and Appellant. In doing so, she indicated that she would 

“revisit” Appellant’s request “in just a moment.”

In open court, the military judge first elicited the views 

of standby counsel. Counsel stated that it had become 

“clear that [Appellant’s] goal [was] to remove impediments 

or obstacles to the death penalty, and [he was], in fact, encouraging or working towards a death penalty.” Appellant 

immediately objected to this belief as “a twist of the facts.”

The military judge asked standby counsel not to go “into 

specifics in this forum,” and she sought to clarify counsel’s 

motion.

After standby counsel expressed their views, the military judge had the following exchange with Appellant:

MJ: Major Hasan, do you have anything that you 

would like to present to the court [on] this matter 

ex parte? And if so, I’m going to give you the opportunity to do that in writing.

ACC: I have—I’d like to do that right now, ma’am, 

because I—

MJ: Right now, we’re not in an ex parte setting, 

and I want to you give that opportunity. . . .

ACC: It is done now, ma’am. I wanted it to start 

ex parte, but in regards to—

MJ: Hold on there a minute, Major Hasan. I was 

very careful here not to go into any type of specifics in there, so I’m giving you the opportunity to 

present matters to me ex parte, and I want you to 

do that in writing. 

ACC: I object, and I’d like to do that briefly, if I 

may?

. . . .

MJ: Are you specifically waiving any privileges—

I don’t know what you’re planning on going into 

here—but are you specifically waiving any 
United States v. Hasan, No. 21-0193/AR

Opinion of the Court

24

privileges, and you want to discuss this matter in 

a non-ex parte setting?

ACC: Yes, ma’am.

MJ: Is anybody forcing you to make that decision?

ACC: No, ma’am.

MJ: I’m giving you the opportunity to present your 

argument, or anything else that you want me to 

consider, in an ex parte forum.

ACC: I understand. I don’t think it is what you 

think it is, ma’am. I just want to clarify about 

[LTC KP’s] assertion of me seeking the death 

penalty.

MJ: I would prefer that you give that to me in 

writing.

ACC: I object, ma’am.

MJ: You’re not going to give me anything in 

writing?

ACC: No, ma’am. Your Honor, [LTC KP] has made 

an assertion— . . . . and I feel compelled to clarify 

the issue.

MJ: You objected to what [LTC KP] said is what 

you’re telling me?

ACC: It isn’t accurate, and I’d like to clarify that.

MJ: Hold on. I’m going to conduct the rest of this 

hearing as an ex parte hearing. I’m going to clear 

the courtroom. That includes you, Bailiff.

As indicated below, the military judge later stated on the 

record that her purpose in temporarily closing the courtroom was to protect attorney work product and attorneyclient communications. However, she did not make any 

findings before she closed the courtroom. 

During the closed hearing, while discussing enclosures 

to the trial defense counsel’s motion, Appellant requested 

of the military judge, “Please unseal everything.” Appellant 

elaborated:

The part of the unsealing, ma’am, is that if we had 

done this in camera before all this began, that 

would’ve been my preference, but now that the 
United States v. Hasan, No. 21-0193/AR

Opinion of the Court

25

whole idea that I’m seeking the death penalty is 

out, I feel compelled to address that, not just in 

front of you, but in front of the media that’s hearing this. This is my reputation, my principles at 

stake here, and I don’t want anybody to get a misrepresentation of—they might think, ‘Hey, this 

guy is crazy because he is seeking the death penalty.’ I feel compelled to clarify that and say, hey, 

I’m not crazy, this is just a matter of principle. The 

Mujahideen, this is what we do. This is what we 

are. There’s [sic] others like me that believe the 

same.

This closure of the courtroom lasted thirty-four minutes 

out of a seventeen-day trial (from opening statements to 

the announcement of the sentence) and covered thirteen 

pages of a more than two-thousand-page trial transcript.

The following day, the military judge explained her rationale for closing the proceedings as follows:

I closed the court yesterday to the public and had 

an ex parte 39(a) session. I do that on very rare 

occasions, and I do it pursuant to Rule for CourtMartial 806. In this particular instance, I believed 

that we needed to do that to address some issues 

that arose between standby counsel and [Appellant], and issues relating to the release of privileged attorney work product, attorney/client, and 

other privileged communications. There was substantial probability that an overriding interest 

[in] retaining the confidentiality of those communications would be prejudiced if the proceedings 

remained open, and I believed that other means to 

address the issue were inadequate.

On July 6, 2022, almost nine years after the closed Article 39(a), UCMJ, session occurred, this Court unsealed 

the transcript of that session.11

11 The delay in unsealing this portion of the transcript is explainable by the following facts. The military judge believed the 

transcript contained privileged material and did not unseal it for 

that reason. During oral argument before the lower appellate 

court, appellate defense counsel was asked whether Appellant 

consented to the disclosure of the concealed material, and 
United States v. Hasan, No. 21-0193/AR

Opinion of the Court

26

II. Standard of Review

This Court reviews whether a military judge properly 

closed courtroom proceedings for an abuse of discretion. 

United States v. Ortiz, 66 M.J. 334, 338 (C.A.A.F. 2008). 

Although Appellant raised this issue for the first time in 

this Court, the parties agree that this abuse of discretion 

standard applies to the instant case. In this situation, we 

concur.

III. Applicable Law

“In all criminal prosecutions, the accused shall enjoy 

the right to . . . a public trial.” U.S. Const. amend. VI.12

“Without question, the [S]ixth-[A]mendment right to a 

public trial is applicable to courts-martial.” United States 

v. Hershey, 20 M.J. 433, 435 (C.M.A. 1985) (footnote omitted); see also United States v. Short, 41 M.J. 42, 43 

(C.A.A.F. 1994) (“The Sixth Amendment right to a public 

trial is applicable to courts-martial.”). In addition to the 

Sixth Amendment, there is a regulatory right to open 

courts-martial. R.C.M. 806(a) (2008 ed.) (“Except as 

defense counsel declined to give a responsive answer on Appellant’s behalf. And then, it was not until May 2022 that Appellant 

filed a motion with this Court asking that the transcript pages 

from the closed hearing be unsealed. We granted that motion 

two months later, thereby making the material public. United 

States v. Hasan, 82 M.J. 422, 422-23 (C.A.A.F. 2022) (order).

12 The First Amendment also gives the public the right of 

access to criminal trials. Presley v. Georgia, 558 U.S. 209, 212

(2010) (per curiam) (citing Press-Enter. Co. v. Superior Ct. of 

Cal., 464 U. S. 501, 501 (1984)). “There can be no doubt that the 

general public has a qualified constitutional right under the 

First Amendment to access to criminal trials.” United States v. 

Travers, 25 M.J. 61, 62 (C.M.A. 1987). “[W]hen an accused is entitled to a public hearing, the press enjoys the same right and 

has standing to complain if access is denied.” ABC, Inc. v. Powell, 

47 M.J. 363, 365 (C.A.A.F. 1997). However, the Supreme Court 

has not decided “[t]he extent to which the First and Sixth 

Amendment public trial rights are coextensive,” labeling this issue “an open question.” Presley, 558 U.S. at 213.
United States v. Hasan, No. 21-0193/AR

Opinion of the Court

27

otherwise provided in this rule, courts-martial shall be 

open to the public.”).

Conducting criminal trials in public is of paramount 

constitutional concern. Public trials ensure that judges and 

prosecutors act professionally; they reduce the chances of 

arbitrary and capricious decision-making; they encourage 

witnesses to come forward; they discourage perjury; and 

they enhance public confidence in the court system. See 

Waller v. Georgia, 467 U.S. 39, 46 (1984) (noting that with 

a public trial, “the public may see [the accused] is fairly 

dealt with and not unjustly condemned” and the public 

“may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions” (citation 

omitted) (internal quotation marks omitted)). As our predecessor court stated, “public confidence in matters of military justice would quickly erode if courts-martial were arbitrarily closed to the public.” Travers, 25 M.J. at 62.

Despite this general rule, both the Sixth Amendment 

and R.C.M. 806 make exceptions to the right to have a public trial. Waller, 467 U.S. at 45 (“the right to an open trial 

may give way in certain cases to other rights or interests”); 

R.C.M. 806(a) (2008 ed.) (“Except as otherwise provided in 

this rule, courts-martial shall be open to the public.”). 

“Nonetheless, ‘the exclusion must be used sparingly with 

the emphasis always toward a public trial.’ ” Short, 41 M.J. 

at 43 (quoting United States v. Grunden, 2 M.J. 116, 120 

(C.M.A. 1977)).

In Waller, the Supreme Court’s seminal Sixth Amendment case on the right to a public trial, the Court announced the following standard for closing a trial:

[T]he party seeking to close the hearing must advance an overriding interest that is likely to be 

prejudiced, the closure must be no broader than 

necessary to protect that interest, the trial court 

must consider reasonable alternatives to closing 

the proceeding, and it must make findings adequate to support the closure.
United States v. Hasan, No. 21-0193/AR

Opinion of the Court

28

467 U.S. at 48 (citing Press-Enter. Co., 464 U. S. at 511-

12).13

R.C.M. 806 mirrors the Waller test as follows:

Courts-martial shall be open to the public unless 

(1) there is a substantial probability that an overriding interest will be prejudiced if the proceedings remain open; (2) closure is no broader than 

necessary to protect the overriding interest; (3) 

reasonable alternatives to closure were considered and found inadequate; and (4) the military 

judge makes case-specific findings on the record 

justifying closure.

R.C.M. 806(b)(2) (2008 ed.).14

IV. Discussion

It is important to note that the military judge was presented with a difficult situation here. Appellant was proceeding pro se, and the military judge was trying to protect 

Appellant from publicly disclosing information that might 

13 Although the Waller test specifically deals with when a 

party seeks closure, we conclude that this test equally applies to 

a military judge’s sua sponte decision to close a courtroom. See 

United States v. Candelario-Santana, 834 F.3d 8, 23 (1st Cir. 

2016) (applying the Waller test where “Government did not request a closure”); Tucker v. Superintendent Graterford SCI, 677 

F. App’x 768, 770 (3d Cir. 2017) (applying Waller test after noting that the trial judge closed the courtroom following “an offthe-record discussion with counsel in chambers”); United States 

v. Honken, 438 F. Supp. 2d 983, 986 (N.D. Iowa 2004) (applying 

the Waller test when determining whether the court would sua 

sponte close a hearing on the motion for an anonymous jury).

14 The parties agree that the same standard applies to both 

the constitutional and the R.C.M. court closure claims. We concur. See R.C.M. 806(b)(2) Discussion (2008 ed.) (“A session may 

be closed over the objection of the accused or the public upon 

meeting the constitutional standard set forth in this Rule.”); 

Manual for Courts-Martial, United States, Analysis of the Rules 

for Courts-Martial app. 21 at A21-48 (2008 ed.) (“The rules on 

closure now in subsection (b)(2) and the Discussion were 

amended in light of military case law that has applied the Supreme Court’s constitutional test for closure to courts-martial.”).
United States v. Hasan, No. 21-0193/AR

Opinion of the Court

29

be damaging to his own defense. Her concern was heightened because: the issue under discussion involved matters 

pertaining to attorney-client privilege; the standby counsel’s motion contained privileged information; and Appellant’s stance on whether he waived his privilege regarding 

such matters was confusing. Nevertheless, we will assume 

without deciding that the military judge abused her discretion in briefly closing Appellant’s court-martial. Upon doing so, however, we conclude that Appellant is not entitled 

to have his findings and sentence set aside.

In Weaver v. Massachusetts, the Supreme Court stated 

that this “constitutional violation—the courtroom closure—has been treated . . . as a structural error.” 582 U.S. 

286, 290 (2017).15 Importantly however, in Waller the Supreme Court stated that when there has been “a violation 

of the public-trial guarantee. . . .[,] the remedy should be 

appropriate to the violation” and warned against imposing 

a remedy that “would be a windfall for the defendant, and 

not in the public interest.” 467 U.S. at 49-50 (footnote omitted). Such a pronouncement runs contrary to the notion 

that a conviction obtained in the face of a public trial violation should be automatically overturned without further 

analysis. Moreover, the United States Court of Appeals for 

the Second Circuit has underscored that “the [Supreme] 

Court has never said, much less ruled, that any conviction 

following an erroneous closure must be vacated.” Jordan v. 

Lamanna, 33 F.4th 144, 153 (2d Cir. 2022).

At oral argument, Appellant argued that Weaver, 

582 U.S. at 290, and Presley, 558 U.S. at 209, overruled this 

aspect of Waller. Our reading of those cases indicates otherwise. Presley, 558 U.S. at 211-16, did not address this issue, and Weaver, 582 U.S. at 296-97, did not explicitly 

15 R.C.M. 806 does not specify a remedy for a violation of its 

requirement that “[c]ourts-martial shall be open to the public.” 

Because the same standard applies under both the Constitution 

and the rule to determine whether a public trial violation has 

occurred, we hold that the remedy for a violation of R.C.M. 806 

must also be the same. 
United States v. Hasan, No. 21-0193/AR

Opinion of the Court

30

overrule this key facet of Waller. And we pointedly note, 

“overruling by implication is disfavored.” United States v. 

Pack, 65 M.J. 381, 383-84 (C.A.A.F. 2007) (citing Eberhart 

v. United States, 546 U.S. 12, 19-20 (2005); State Oil Co. v. 

Khan, 522 U.S. 3, 19 (1997); Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989)). Indeed, the Supreme Court has stated that its decisions, such 

as in Waller, “remain binding precedent until [it] see[s] fit 

to reconsider them, regardless of whether subsequent cases 

have raised doubts about their continuing vitality.” Hohn 

v. United States, 524 U.S. 236, 252-53 (1998). 

Moreover, the Supreme Court has acknowledged that 

not all structural errors merit automatic reversal. Weaver, 

582 U.S. at 297 (noting that “despite the structural aspect 

of the violation” in Waller, “the Court did not order a new 

trial”). Indeed, the Court stated that “in the case of a structural error where there is an objection at trial and the issue 

is raised on direct appeal, the defendant generally is entitled to ‘automatic reversal’ regardless of the error’s actual 

‘effect on the outcome.’ ” Id. at 299 (emphasis added) (quoting Neder v. United States, 527 U.S. 1, 7 (1999)); see also 

id. at 305 (“When a structural error is preserved and raised 

on direct review, the balance is in the defendant’s favor, 

and a new trial generally will be granted as a matter of 

right.” (emphasis added)); State v. Schierman, 438 P.3d 

1063, 1081 n.15 (Wash. 2018) (“Thus, Waller illustrates the 

fact that a new trial is not always the remedy for the structural error of courtroom closure. See also Weaver . . . , [582] 

U.S. [at 297] . . . (noting that Waller did not grant the remedy of a new trial ‘despite the structural aspect of the violation’).”). Therefore, in this case where we assume that the 

military judge erred in closing the Article 39, UCMJ, session, we look to the Supreme Court’s foundational case on 

this topic—Waller—and adhere to its ruling that when 

there has been “a violation of the public-trial guarantee. . . .[,] the remedy should be appropriate to the violation,” and a remedy should not be imposed that “would be 
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Opinion of the Court

31

a windfall for the defendant, and not in the public interest.” 

Waller, 467 U.S. at 49-50 (footnote omitted).16

In this context, Appellant claims that “the only appropriate result is reversal.” Appellant’s Brief at 67. We disagree. Such a remedy would be grossly disproportionate to 

the violation. This is true for a number of reasons. 

First, the closure of the Article 39(a) session was brief. 

As indicated above, it lasted only thirty-four minutes, and 

it covered only thirteen pages in the transcript. 

Second, the closed hearing did not involve witness testimony, the admission of evidence, or any other matter directly related to the findings or sentence in this case. 

Third, the military judge explored reasonable alternatives to closing the hearing. She initially kept the hearing 

open and instructed Appellant and his counsel not to discuss privileged material. It was only when she grew concerned that this approach may not work that she ultimately closed the hearing. The military judge also sought 

to protect the privileged material by having Appellant submit his concerns in writing—but he refused. Specifically, 

as noted above, the following exchange occurred:

MJ: Major Hasan, do you have anything that you 

would like to present to the court [on] this matter 

ex parte? And if so, I’m going to give you the opportunity to do that in writing. 

. . . .

ACC: I object . . . .

16 We recognize this Court stated in Ortiz that an “erroneous 

deprivation of the right to a public trial is structural error, which 

requires this Court to overturn Appellant’s conviction without a 

harmlessness analysis.” 66 M.J. at 342. However, as we have explained, the Supreme Court made clear in Waller that not all 

public trial structural errors lead to automatic reversal. 467 U.S. 

at 49-50. Therefore, to the extent that Ortiz required automatic 

reversal of a conviction for a Sixth Amendment public trial violation, we overrule Ortiz and adopt the approach provided in 

Waller.
United States v. Hasan, No. 21-0193/AR

Opinion of the Court

32

. . . .

MJ: I would prefer that you give that to me in 

writing.

ACC: I object, ma’am.

MJ: You’re not going to give me anything in 

writing?

ACC: No ma’am . . . .

Fourth, the military judge placed her reasons for closing 

the hearing on the record—albeit after the fact rather than 

before the fact.

Fifth, contrary to Appellant’s assertions, these findings 

by the military judge were not inadequate. It is clear from 

the record—both before the hearing was closed and in the 

subsequent findings—that the military judge was motivated by a concern for protecting Appellant’s rights. These 

concerns by the military judge were heightened by the fact 

that there was an apparent rift between Appellant and his 

standby counsel, and Appellant—who was proceeding pro 

se—had no legal training that would help him discern 

whether the disclosure of potentially privileged material in 

open court would be harmful to his defense. Moreover, the 

military judge’s ex post explanation for the closure of the 

courtroom was clear. She stated that the Article 39(a) hearing involved “issues relating to the release of privileged attorney work product [and] attorney/client[] and other privileged communications.” She further stated as follows: 

“There was substantial probability that an overriding interest of retaining the confidentiality of those communications would be prejudiced if the proceedings remained 

open, and I believed that other means to address the issue 

were inadequate.” 

And sixth, this Court has now unsealed the transcript 

of the closed session and the public can readily see what 

happened during that hearing.17 Specifically, the public 

now knows that during the closed session the military 

17 Even Appellant acknowledges that the release of the transcript was a reasonable alternative, at least at the trial level. 
United States v. Hasan, No. 21-0193/AR

Opinion of the Court

33

judge acted professionally and did not engage in arbitrary 

or capricious decision-making, and that neither the 

military judge nor standby counsel infringed the rights or 

interests of Appellant in any way, thereby enhancing 

public confidence in the court system. See Waller, 467 U.S. 

at 46; Press-Enter. Co., 464 U.S. at 512; cf. Weaver, 

582 U.S. at 304 (finding that the trial at issue was not 

fundamentally unfair in the ineffective assistance of 

counsel context when counsel did not object to the court 

closure because, in part, “there was a record made of the 

proceedings that does not indicate any basis for concern, 

other than the closure itself”). 

Therefore, because reversal of the findings and sentence 

in this case would not “be appropriate to the violation” and 

would constitute a “windfall” for Appellant that would not 

be “in the public interest,” Waller, 467 U.S. at 50, we decline to impose the remedy sought by Appellant.

Issue III: Whether the Military Judge Erred by 

Failing to Disqualify Lieutenant Colonel KG

as a Panel Member

Appellant challenges the military judge’s failure to sua 

sponte excuse LTC KG from serving as a panel member. 

Appellant claims that LTC KG exhibited actual and implied bias through his panel questionnaires, his voir dire 

responses, and the content of a bumper sticker affixed to 

his vehicle. Thus, although Appellant did not challenge 

LTC KG for cause and did not exercise his peremptory challenge to remove LTC KG or anyone else from his court-martial panel, he now asserts on appeal that the military judge 

erred by failing to “disqualify” LTC KG and argues that he 

“must be granted a rehearing before an impartial panel.” 

Appellant’s Brief at 68, 84. Despite Appellant’s contentions, we hold that the military judge did not err by declining to exercise her discretionary authority to sua sponte excuse LTC KG under R.C.M. 912(f)(4) (2008 ed.). 

I. Background

LTC KG was selected by the convening authority to 

serve as a prospective panel member at Appellant’s court-
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Opinion of the Court

34

martial. LTC KG twice submitted answers to a panel member questionnaire. In his first set of responses LTC KG 

gave answers that were concerning. Among other things, 

he agreed he was “affected . . . in a personal way” by the 

shootings, he knew a significant number of details about 

the facts of the case, he said he was angry about the Fort

Hood attack, he agreed with the statement that soldiers 

who kill fellow soldiers “should not be given the same 

rights as other criminal defendants,” he had a bumper 

sticker on his car reading “Major League Inf[i]del,” and 

most importantly, he admitted that he was not confident 

that he could be impartial and that he already had an impression that Appellant was guilty.

Approximately nine months later and unprompted by 

either party, LTC KG filled out the panel member questionnaire a second time. His stated reason for doing so was 

as follows: “When I first filled [out the questionnaire] nine 

months ago, I was in the throes of battalion command and 

had [a] darker view of issues and [was] under a considerably greater level of stress.” In his second set of responses, 

LTC KG gave different answers to several questions. Despite these circumstances, during voir dire Appellant—who

was proceeding pro se—did not challenge LTC KG for cause 

or use a peremptory challenge to strike him from the panel.

In fact, when questioned by the military judge about this 

matter, Appellant agreed that he was specifically waiving 

all challenges for cause against a group of members that 

included LTC KG.

II. Applicable Law

When an accused believes there are grounds for challenging a member following voir dire, the accused “shall 

state [his or her] challenges for cause.” R.C.M. 912(f)(2) 

(2008 ed.). Ordinarily, an accused waives a ground for challenge “if the [accused] knew of or could have discovered by 

the exercise of diligence the ground for challenge and failed 

to raise it in a timely manner.” R.C.M. 912(f)(4) (2008 ed.). 

“Notwithstanding the absence of a challenge or waiver of a 

challenge by the parties, the military judge may, in the interest of justice, excuse a member against whom a 
United States v. Hasan, No. 21-0193/AR

Opinion of the Court

35

challenge for cause would lie.” Id. Under this rule, “[a] military judge has the discretionary authority to sua sponte 

excuse [a] member but has no duty to do so.” United States 

v. McFadden, 74 M.J. 87, 90 (C.A.A.F. 2015). A military 

judge’s “decision whether or not to excuse a member sua 

sponte is subsequently reviewed for an abuse of discretion.” 

United States v. Strand, 59 M.J. 455, 458 (C.A.A.F. 2004); 

see also United States v. Akbar, 74 M.J. 364, 397 (C.A.A.F. 

2015). 

III. Discussion

It is essential to underscore at the outset of this discussion that, as we held in McFadden, a military judge has no 

duty to exercise his or her authority to excuse a panel member who has not been challenged by either party. 74 M.J. 

at 90. This holding is based squarely on the plain language 

of the applicable Rule for Courts-Martial. As we explained 

in McFadden, R.C.M. 912(f)(4) states that a military judge 

“may, in the interests of justice, excuse a member.” (Emphasis added.) See Jama v. Immigration & Customs Enforcement, 543 U.S. 335, 346 (2005) (“The word ‘may’ customarily connotes discretion.”); Bryan A. Garner, Garner’s 

Dictionary of Legal Usage 568 (3d ed. 2011). Thus, the exercise of that authority is discretionary. In the course of deciding whether a military judge abused that discretion, it 

is necessary for this Court to review the facts that were before the trial court. 

Here, the military judge was aware of a number of important points. To begin with, she knew she had fully apprised Appellant about: the panel selection process; Appellant’s ability to ask questions of members during voir dire;

Appellant’s ability to challenge members for cause; and Appellant’s ability to exercise a peremptory challenge. She 

also knew that Appellant seemingly understood this process because he submitted general voir dire questions;

withdrew some of these questions; requested individual 

voir dire of members;18 asked questions of a number of 

18 Appellant even asked the military judge to provide a prospective panel member with that member’s “thesis” on the 
United States v. Hasan, No. 21-0193/AR

Opinion of the Court

36

prospective panel members—including LTC KG; requested 

and was granted the right to recall a particular member for 

additional questions; and joined the Government in successfully seeking the excusal of a member of the venire. 

Furthermore, Appellant recognized “a clear discrepancy” 

between a specific prospective member’s answers on his 

questionnaire and his answers during voir dire. By taking 

these steps, Appellant demonstrated to the military judge

his knowledge of the voir dire process, as well as his willingness to avail himself of the protections afforded by that 

process as he saw fit.

Further, the military judge knew that although 

Appellant was proceeding pro se, he had standby counsel 

who could instruct him on how to challenge prospective 

panel members. And importantly, she also knew that

Appellant had been provided with the services of a selfselected, government-funded jury consultant on whom 

Appellant could rely. 

Next, the military judge knew that in light of LTC KG’s 

self-initiated reassessment of his responses to the panel 

member questionnaire and his answers during voir dire, 

LTC KG could be perceived as having “rehabilitated” himself for court-martial purposes and as having displayed a 

welcome ability to reconsider any reflexive positions he had 

previously taken in regard to this case. Specifically, LTC 

KG affirmed during individual voir dire with the military 

judge that he could decide the case “based solely on the evidence admitted in court,” could follow the judge’s instructions, and knew of no reason why he could not be impartial. 

Also, the military judge knew that Appellant had unequivocally chosen not to challenge LTC KG for cause or to 

use a peremptory challenge to remove him from the courtmartial panel. Indeed, the military judge directly addressed this point twice with Appellant. After LTC KG and 

one set of panel members participated in individual voir 

Afghanistan insurgency so that, prior to Appellant’s questioning, the member could refresh his recollection about what he had 

written.
United States v. Hasan, No. 21-0193/AR

Opinion of the Court

37

dire, Appellant had the following exchange with the military judge:

MJ: Major Hasan, do you have any challenges for 

cause?

ACC: I do not.

MJ: Are you specifically waiving any challenges 

for cause of the remaining members?

ACC: Yes, ma’am.

And later, when the military judge gave Appellant another 

chance to challenge members for cause, Appellant did not 

take this opportunity to challenge LTC KG (or any other 

member). Instead, he responded, “No, ma’am,” to the military judge’s question, “[D]id you have any challenge for 

cause of any member?”

When deciding whether to exercise her discretionary 

authority to excuse LTC KG under R.C.M. 912(f)(4), the 

military judge could properly consider all of these 

indications that Appellant had made an informed and 

intentional decision not to challenge LTC KG. As a 

consequence, she also could properly consider the fact that 

an accused’s judgment about whom he wants to sit in 

judgment of him at trial can be highly personal and, 

perhaps, idiosyncratic. As the United States Court of 

Appeals for the Eleventh Circuit has recognized, “The 

selection of a jury is by nature a subjective process which 

relies heavily on the instincts of the attorneys [or a pro se 

accused], the atmosphere in the courtroom, and the 

reactions of the potential jurors to questioning.” United 

States v. Williams, 936 F.2d 1243, 1246 (11th Cir. 1991); 

see also United States v. Turner, 674 F.3d 420, 436 (5th Cir. 

2012) (acknowledging “the subjective nature of jury 

selection”). Moreover, we note that this Court must be 

circumspect in using a cold record to second-guess a 

military judge’s decision not to sua sponte excuse a panel 

member whom both parties apparently wanted to sit on the

case. Cf. Uttecht v. Brown, 551 U.S. 1, 9 (2007) (“Deference 

to the trial court is appropriate because it is in a position 

to assess the demeanor of the venire, and of the individuals 
United States v. Hasan, No. 21-0193/AR

Opinion of the Court

38

who compose it, a factor of critical importance in assessing 

the attitude and qualifications of potential jurors.”). Taking 

these factors into account, we find no basis for this Court 

to conclude that the military judge abused her discretion in 

declining to exercise her discretionary authority to sua 

sponte excuse LTC KG. After all, under an abuse of 

discretion standard, there “must be more than a mere 

difference of opinion. The challenged action must be 

arbitrary, fanciful, clearly unreasonable, or clearly

erroneous.” United States v. Black, 82 M.J. 447, 451 

(C.A.A.F. 2022) (citation omitted) (internal quotation 

marks omitted). Here, the military judge’s action did not 

meet these criteria. 

In light of the circumstances discussed above, we conclude that the military judge did not abuse her discretion 

when she declined to exercise her discretionary authority 

to sua sponte excuse LTC KG under R.C.M. 912(f)(4).

Issue IV: Whether Article 45(b)’s Prohibition 

Against Guilty Pleas to Capital Offenses

Is Constitutional

&

Issue V: Assuming Arguendo that Article 45(b) Is 

Constitutional, Whether its Application in this Case 

Nonetheless Constituted Reversible Error

At the time of Appellant’s trial, Article 45(b), UCMJ, 

prohibited an accused from pleading guilty to “any charge 

or specification alleging an offense for which the death penalty may be adjudged.”19 Appellant raises both a 

19 10 U.S.C. § 845(b) (2012). Article 45(b) now provides: “A 

plea of guilty by the accused may not be received to any charge 

or specification alleging an offense for which the death penalty is 

mandatory.” 10 U.S.C. § 845(b) (2018) (emphasis added). Thus, 

this amendment “permit[s] an accused to enter a guilty plea in 

a capital case in which the death penalty is not mandatory.” David A. Schlueter, Reforming Military Justice: An Analysis of the 

Military Justice Act of 2016, 49 St. Mary’s L. J. 1, 58 (2017). According to the R.C.M. 910(a)(1) Discussion (2019 ed.), “There are 
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Opinion of the Court

39

constitutional challenge to this article and a challenge to 

this Court’s statutory interpretation of this provision. Specifically, Appellant argues that “Article 45(b)’s prohibition 

on guilty pleas to capital offenses is an impermissible restriction on a competent accused’s right of autonomy to 

make his defense.” Appellant’s Brief at 84. Even if this prohibition is constitutional, he argues that “its application to 

[A]ppellant’s offers to plead guilty in the alternative to noncapital offenses constituted reversible error” because the 

decision in United States v. Dock, 28 M.J. 117 (C.M.A. 

1989), was “poorly reasoned.” Id. at 100-01. We conclude 

that Appellant is not entitled to relief.

I. Background

After referral of the charges in this case, Appellant filed

notice with the trial court of his intent to plead guilty, proposing three options. Under the first option, he offered to 

plead guilty as charged to premeditated murder and attempted premediated murder. Under the second option, he 

offered to plead guilty to unpremeditated murder and attempted premeditated murder. And under the third option, 

he offered to plead guilty to unpremeditated murder and 

attempted unpremeditated murder.

The military judge rejected Appellant’s offer to plead 

guilty as charged to premediated murder and attempted 

premeditated murder, ruling that such a plea was “contrary to Article 45(b) and . . . [thus option one was] not legally permissible.”

Regarding Appellant’s offer to plead guilty to 

unpremeditated murder and attempted premeditated 

murder, the military judge ruled it was “not legally 

permissible under United States v. Dock at 26 MJ 620

[(A.C.M.R. 1988)], 28 MJ 117 [(C.M.A. 1989)], and also, the 

case of United States v. McFarlane at [8 C.M.A. 96,] 23 

CMR 320 [(1957)], because of the concept of transferred 

premeditation. It would be possible for the accused to be 

no offenses under the UCMJ for which a sentence of death is 

mandatory.”
United States v. Hasan, No. 21-0193/AR

Opinion of the Court

40

convicted of the charged capital offense without presenting 

any additional evidence . . . . [A]nd therefore, option two is 

not legally permissible.”

The military judge also rejected Appellant’s offer to 

plead guilty to unpremeditated murder and attempted unpremeditated murder. She reasoned as follows: 

[T]he court believes that accepting a plea to option 

number three would be the functional equivalent 

to pleading guilty to a capital offense. If the government did not put on any additional evidence 

beyond the accused’s plea, could the accused be 

found guilty of a capital offense under Article 120 

[sic], subparagraph one? Strictly speaking, no, but 

practically speaking, because of the facts and context of this case, the answer would be yes. The 

court also relies on United States v. Simoy, 46 MJ 

592, an Air Force Court of Criminal Appeals case 

from 1996, 50 MJ 1, Court of Appeals for the 

Armed Forces, 1998.

The offense[] of attempted unpremeditated murder requires both the intent to kill, and an act that 

is more than mere preparation, and demonstrates 

the accused’s resolve to commit the offense. The 

difference between that and the premeditated design to kill is very slight. You couple that with a

number of acts that form the basis for the attempted murders and murders that happened in 

sequence, the four corners of the record will be 

that the accused is functionally admitting to a 

capital offense in violation of Article 45.

So, in other words, it is not the elements so much, 

but the factual predicate in this particular case, 

that is, the killing of 13 people over a period of 

time, the elements themselves will not support 

premeditation, but the facts supporting the elements would, and therefore, accepting a plea to 

option number three would be the functional 

equivalent to pleading guilty to a capital offense 

in violation of Article 45 of the Uniform Code of 

Military Justice.

(Second set of brackets in original.)
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41

Responding to a motion for reconsideration, the military 

judge “adhere[d] to [her] original ruling” and denied the 

defense request “to accept a plea of guilty to 

unpremeditated murder and attempted unpremeditated 

murder.” However, in seeking to address Appellant’s 

expressed concerns, during the sentencing phase of the 

trial the military judge repeatedly offered to instruct the 

panel that Appellant had desired to plead guilty to the 

charged offenses but was not permitted to do so by 

operation of law. Appellant nevertheless expressly declined 

that instruction and affirmatively asked the military judge 

to “[n]ot instruct [the panel] at all.”

II. Issue IV: Constitutional Challenge to

Article 45(b), UCMJ20

Appellant argues that Article 45(b)’s prohibition 

against guilty pleas to capital offenses, runs afoul of 

the “ ‘protected right of autonomy’ to maintain innocence or 

admit guilt” described in McCoy, 138 S. Ct. 1500. Appellant’s Brief at 84. Appellant also argues that “this Court 

should overturn United States v. Matthews, 16 M.J. 354 

(C.M.A. 1983) and its progeny, and find Article 45(b)’s prohibition unconstitutional” because of two intervening Supreme Court decisions—McCoy and Weiss v. United States, 

510 U.S. 163 (1994). Reply Brief at 41. Appellant maintains 

that this denial of his offer to plead guilty resulted in structural error, entitling him to a rehearing.

A. Standard of Review

“The constitutionality of an act of Congress is a question 

of law that we review de novo.” United States v. Ali, 71 M.J. 

256, 265 (C.A.A.F. 2012).

B. Discussion

This Court has repeatedly affirmed the constitutionality of Article 45(b), UCMJ. See Akbar, 74 M.J. at 400 

20 Appellant raised this issue for the first time before the 

ACCA in the form of a motion for reconsideration. Thus, the 

lower court declined to consider it. Hasan, 2021 CCA LEXIS 114, 

at *1-2.
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Opinion of the Court

42

(rejecting the appellant’s contention that “the panel’s consideration of mitigation evidence was unconstitutionally 

limited by the [Article 45(b)] prohibition against guilty 

pleas in capital cases” and citing United States v. Gray, 51 

M.J. 1, 49 (C.A.A.F. 1999); United States v. Loving, 41 M.J. 

213, 292 (C.A.A.F. 1994); and Matthews, 16 M.J. at 362-

63). Indeed, in Matthews, our predecessor court stated:

[W]e are unaware of any constitutional right to 

plead guilty in capital cases. Furthermore, in light 

of the special treatment given to capital cases by 

courts and legislatures and the irreversible effect 

of executing a capital sentence, we do not believe 

that Congress acted arbitrarily by providing in the 

Uniform Code that an accused [servicemember] 

cannot plead guilty to a capital charge.

16 M.J. at 362-63.

Nevertheless, Appellant argues that Weiss and McCoy

undermine our precedent on this issue. We find these arguments unpersuasive.

In Weiss, the Supreme Court adopted the following 

standard for determining whether a due process challenge 

to a facet of the military justice system should prevail: “the 

factors militating in favor of [the challenged aspect of the 

military justice system] are so extraordinarily weighty as 

to overcome the balance struck by Congress.” Weiss, 510 

U.S. at 177-78 (internal quotation marks omitted) (quoting 

Middendorf v. Henry, 425 U.S. 25, 44 (1976)).

Attempting to apply the Weiss holding to his case, Appellant identifies the following “weighty considerations,” 

which he asserts militate in favor of this Court striking 

down Article 45, UCMJ, as unconstitutional on due process 

grounds: (1) a guilty plea may spare an accused from death

by demonstrating that he has taken responsibility; (2) a not 

guilty plea may have dire consequences; (3) a guilty plea 

may spare an accused and his family from protracted courtroom proceedings; and (4) a guilty plea respects an accused’s right to autonomy to make a strategic choice to 

acknowledge his crime.
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Opinion of the Court

43

These “weighty considerations” are not unique to this 

case. Further, although Weiss was decided in 1994, as recently as 2015 this Court specifically upheld the constitutionality of Congress’s decision under Article 45(b), UCMJ,

to prohibit guilty pleas to any charges or specifications alleging offenses for which the death penalty may be adjudged. Akbar, 74 M.J at 400. And yet despite this precedent, and despite the fact that Appellant’s Weiss analysis, 

standing alone, is not compelling, Appellant has failed to 

engage in a stare decisis analysis. United States v. Cardenas, 80 M.J. 420, 423 (C.A.A.F. 2021) (listing the stare 

decisis factors for overturning precedent). This Court finds 

no reason to overturn our precedent in this area of the law, 

and being offered no stare decisis analysis by Appellant, we 

conclude that his reliance upon Weiss is misplaced.

Turning to McCoy, Appellant asserts that the Sixth 

Amendment right of autonomy recognized in that case undermines our precedent upholding the constitutionality of 

Article 45(b).21 See Cardenas, 80 M.J. at 423 (stating that 

“we are not bound by precedent when there is a significant 

change in circumstances”); cf. United States v. Allbery, 44 

M.J. 226, 228 (C.A.A.F. 1996) (noting that “an intervening 

decision of . . . the Supreme Court of the United States” 

would authorize a lower court to depart from this Court’s 

precedent).

In McCoy, “the defendant vociferously insisted that he 

did not engage in the charged acts and adamantly objected 

21 Laying the groundwork for his “right of autonomy” argument under McCoy, Appellant also argues that the Supreme 

Court’s opinion in Faretta, 422 U.S. 806, was “anchored in ‘the 

fundamental legal principle that a defendant must be allowed to 

make his own choices about the proper way to protect his own 

liberty.’ ” Appellant’s Brief at 92 (quoting Weaver, 137 S. Ct. at

1907). He further argues that courts have applied Faretta “beyond self-representation to both restrict the imposition of pleas 

on unwilling defendants and uphold pleas that were freely requested.” Id. Be that as it may, we do not read Faretta or its 

progeny as being so broad as to disturb our long-established 

precedent that upholds the constitutionality of Article 45(b).
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Opinion of the Court

44

to any admission of guilt.” 138 S. Ct. at 1505. However, “the 

trial court permitted counsel, at the guilt phase of a capital 

trial, to tell the jury the defendant ‘committed three murders. . . . [H]e’s guilty.’ ” Id. (alterations in original). The 

Supreme Court held “that a defendant has the right to insist that counsel refrain from admitting guilt.” Id. The 

Court explained that “it is the defendant’s prerogative, not 

counsel’s, to decide on the objective of his defense: to admit 

guilt in the hope of gaining mercy at the sentencing stage, 

or to maintain his innocence, leaving it to the State to prove 

his guilt beyond a reasonable doubt.” Id.

Despite this seemingly expansive language highlighted 

by Appellant, many federal courts interpreting and applying the McCoy holding have limited it to the narrow set of 

circumstances presented in that case. See, e.g., Kellogg-Roe 

v. Gerry, 19 F.4th 21, 28 (1st Cir. 2021) (declining to extend 

McCoy beyond the facts of that case); United States v. Rosemond, 958 F.3d 111, 123 (2d Cir. 2020) (“[W]e read McCoy

as limited to a defendant preventing his attorney from admitting he is guilty of the crime with which he is charged.”); 

see also Roof, 10 F.4th at 353 (approvingly citing the priorquoted language from Rosemond).

Moreover, the language in McCoy suggesting that the 

decision of “whether to plead guilty”—when pleading guilty 

is a possibility—is “reserved for the client,” is dicta. 138 S. 

Ct. at 1508. The actual holding of McCoy is that “it is 

unconstitutional to allow defense counsel to concede guilt

over the defendant’s intransigent and unambiguous 

objection.” Id. at 1507 (emphasis added). That 

circumstance did not occur in the instant case. Further, 

McCoy was allowed to enter the plea of his choice—not 

guilty—and the harm came from his counsel’s 

admissions—purportedly on McCoy’s behalf—that were

inconsistent with that plea. Id. at 1506–07. Again, that 

circumstance did not arise in the instant case. Further still, 

McCoy concerned the prerogative of an attorney to 

determine the scope of appropriate objectives of 

representation by unilaterally deciding whether a guilty 

plea should be entered on a client’s behalf. But the issue 
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Opinion of the Court

45

here concerns whether Congress has the power to decide 

whether an accused may enter a guilty plea.

Additionally, the Supreme Court’s concerns in McCoy

were of a different nature than the concerns expressed by 

Appellant in the instant case. Stated differently, the interests implicated by a counsel telling a jury that the accused 

is guilty against the accused’s wishes is simply of a different kind than the interests implicated by Congress refusing to allow an accused servicemember to plead guilty to a 

certain subset of offenses. The Supreme Court recognized 

that an accused in McCoy’s position “may wish to avoid, 

above all else, the opprobrium that comes with admitting 

he killed family members. Or he may hold life in prison not 

worth living and prefer to risk death for any hope, however 

small, of exoneration.” Id. at 1508. In Appellant’s case, neither of these interests is present because Appellant wanted

to plead guilty. Regardless, this is a policy consideration for 

Congress to consider, not a constitutional or legal issue for 

this Court to decide.

In analyzing this issue, perhaps the most important 

point is that the Constitution expressly grants Congress 

power over the military justice system. Article I, § 8, cl. 14 

states: “The Congress shall have the power . . . [t]o make 

Rules for the Government and Regulation of the land and 

naval Forces . . . .” See Chappell v. Wallace, 462 U.S. 296, 

301 (1983) (“It is clear that the Constitution contemplated 

that the Legislative Branch [would] have plenary control 

over . . . regulations, procedures and remedies related to 

military discipline . . . .”). And as we have repeatedly held, 

Congress legislated within the confines of this constitutional grant of authority when it enacted Article 45, UCMJ. 

The intent of Congress in enacting Article 45 is apparent; it sought to protect the interests of accused servicemembers, not circumscribe them. See United States v. 

Chancelor, 16 C.M.A. 297, 299, 36 C.M.R. 453, 455 (1966) 

(“During the hearings on the Uniform Code of Military Justice, there was considerable concern expressed regarding 

the entry of guilty pleas in courts-martial, and Congress 

made clear the nature of the safeguards which they 
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46

intended to surround the receiving of such a judicial confession.”). This Court has long observed that Congress 

could decide that “[t]he ‘unique circumstances of military 

service require[] specific statutory protections for members 

of the armed forces’ ” due to “the subtle and not so subtle 

pressures that apply to military life and might cause members of the armed forces to feel compelled to” relinquish

their constitutional rights. United States v. Gilbreath, 74 

M.J. 11, 16-17 (C.A.A.F. 2014) (second alteration in original) (discussing Article 31(b), UCMJ, 10 U.S.C. § 831(b) 

(2012)) (quoting United States v. Swift, 53 M.J. 439, 445 

(C.A.A.F. 2000)). Thus, Congress was exercising its constitutional authority to make rules for the armed forces when 

it prohibited guilty pleas in capital cases under Article 

45(b), UCMJ.

Moreover, as the Supreme Court itself has clearly 

stated, “[t]here is, of course, no absolute right to have a 

guilty plea accepted,” nor, more generally, to enter any

guilty plea that a defendant might wish to enter. Santobello v. New York, 404 U.S. 257, 262 (1971); United States 

v. McCrimmon, 60 M.J. 145, 152 (C.A.A.F. 2004) (“An accused does not have a constitutional right to plead 

guilty[,] . . . . [a]s the Constitution guarantees only a right 

to plead not guilty . . . .”). Rather, the sovereign is free to 

delineate when and under which circumstances certain 

pleas may be entered. See North Carolina v. Alford, 400 

U.S. 25, 38 n.11 (1970) (“A criminal defendant does not 

have an absolute right under the Constitution to have his 

guilty plea accepted by the court, although the States may 

by statute or otherwise confer such a right. Likewise, the 

States may bar their courts from accepting guilty pleas 

from any defendants who assert their innocence.” (citation 

omitted)).

In this case, Appellant was merely compelled by Congress to have the Government prove his guilt beyond a reasonable doubt. This was not a violation of his Sixth Amendment rights—particularly when any detriment to 

Appellant would have been allayed by the military judge’s 

offer to instruct the panel members during sentencing that 
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47

Appellant had sought to plead guilty during findings but 

was prohibited from doing so by operation of law. In sum, 

considering the long history of the legislative regulation of 

the entry of pleas, Congress’s authority under the Constitution to regulate military justice, and the Supreme 

Court’s Sixth Amendment precedent, the dicta in McCoy

cannot be read as suggesting that there is a constitutional 

right to plead guilty. See Weiss, 510 U.S. at 177 (stressing 

that judicial deference “ ‘is at its apogee’ when reviewing 

congressional decisionmaking” concerning regulations and 

procedures related to military justice (quoting Rostker v. 

Goldberg, 453 U.S. 57, 70 (1981))). Therefore, Appellant’s 

argument that McCoy requires us to overrule our precedents that have consistently upheld Article 45(b)’s prohibition against guilty pleas for capital offenses is without 

merit.

III. Issue V: Statutory Challenge to Article 45(b), UCMJ

In the alternative, Appellant contends that by prohibiting his proffered guilty pleas to noncapital offenses, the 

military judge “caused the wholesale deprivation of 

[A]ppellant’s regulatory right to plead guilty to these noncapital offenses[,] . . . result[ing] in structural error.” Appellant’s Brief at 101. Specifically, he advocates for overruling our predecessor court’s decision in Dock, 28 M.J.

117, to the extent that it prohibits, under certain circumstances, a capital accused from pleading guilty to noncapital offenses. Appellant notes that the military judge relied 

on Dock to reject Appellant’s offer to plead guilty to unpremeditated murder, as well as to either attempted premeditated murder or attempted unpremeditated murder. 

In Dock, this Court’s predecessor interpreted Article 

45(b) to mean that “ ‘it is not just the pleas that are looked 

to but the four corners of the record to see if, for all practical 

purposes, the accused pled guilty to a capital offense.’ ” 28 

M.J. at 119 (alteration in original removed) (internal quotation marks omitted) (first quoting United States v. Dock, 

26 M.J. 620, 623 (A.C.M.R. 1988) (en banc); and then citing 

United States v. McFarlane, 8 C.M.A. 96, 100, 23 C.M.R. 

320, 324 (1957)). In Dock, because the “appellant’s pleas, 
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48

taken within the context of th[e] case, constituted a plea of 

guilty to . . . a capital offense,” those pleas “were taken in 

violation of Article 45(b), . . . and should have been rejected 

as required by Article 45(a), UCMJ.” Id. (second alteration 

in original) (emphasis added) (internal quotation marks 

omitted) (quoting Dock, 26 M.J. at 623).

A. Standards of Review

“This Court reviews matters of statutory 

interpretation[, such as the interpretation of Article 45,] de 

novo.” United States v. Hiser, 82 M.J. 60, 64 (C.A.A.F. 

2022). Deviation from the requirements of Article 45(b) is 

reviewed for harmless error. See Matthews, 16 M.J. at 363 

(finding “no prejudice to appellant from the judge’s refusal 

to accept a plea of guilty to this crime”). And this Court 

reviews whether there is harmless error de novo. United 

States v. Bowen, 76 M.J. 83, 87 (C.A.A.F. 2017). Finally, 

this Court has the discretion to overrule its own precedent. 

United States v. Blanks, 77 M.J. 239, 242 (C.A.A.F. 2018) 

(although “adherence to precedent is the preferred course,” 

stare decisis “is not an inexorable command” (citations 

omitted) (internal quotation marks omitted)).

B. Applicable Law

As discussed above, at the time of Appellant’s courtmartial Article 45(b), UCMJ, provided, in relevant part, 

that “[a] plea of guilty by the accused may not be received 

to any charge or specification alleging an offense for which 

the death penalty may be adjudged.” The analogous Rule 

for Court-Martial, R.C.M. 910(a)(1) (2008 ed.), contained

nearly identical language: “A plea of guilty may not be received as to an offense for which the death penalty may be 

adjudged by the court-martial.”

In noncapital cases, however—both at the time of Appellant’s court-martial and up until the present day—

R.C.M. 910 has generally permitted an accused to plead 

“not guilty to an offense as charged, but guilty of a lesser 

included offense.” R.C.M. 910(a)(1) (2008 ed.); see also

R.C.M. 910(a)(1)(B) (2019 ed.). The rule’s discussion then 

goes on to state: “A plea of guilty to a lesser included offense 
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49

does not bar the prosecution from proceeding on the offense 

as charged.” R.C.M. 910(a)(1) Discussion (2008 ed.). When 

a guilty plea has been made and accepted, “a finding of 

guilty of the charge or specification may . . . be entered immediately without vote,” and “[t]his finding shall constitute 

the finding of the court.” Article 45(b), UCMJ. It is this regulatory right to which Appellant cites when arguing that 

the military judge erred by preventing him from pleading 

guilty to noncapital offenses, resulting in structural error. 

Under the doctrine of horizontal stare decisis, “an appellate court must adhere to its own prior decisions, unless 

it finds compelling reasons to overrule itself.” United States 

v. Andrews, 77 M.J. 393, 399 (C.A.A.F. 2018) (alteration in 

original removed) (internal quotation marks omitted) 

(quoting United States v. Quick, 74 M.J. 332, 343 (C.A.A.F. 

2015) (Stucky, J., joined by Ohlson, J., dissenting)). However, “[a]pplying stare decisis is not an inexorable command, and we are not bound by precedent when there is a 

significant change in circumstances after the adoption of a 

legal rule, or an error in legal analysis.” Cardenas, 80 M.J. 

at 423. “Stare decisis is most compelling where courts undertake statutory construction as is the case here.” Blanks, 

77 M.J. at 242 (internal quotations marks omitted).

To determine whether to depart from stare decisis, this 

Court applies the following factors: “whether the prior decision is unworkable or poorly reasoned; any intervening 

events; the reasonable expectations of servicemembers; 

and the risk of undermining public confidence in the law.” 

Id. (citation omitted) (internal quotation marks omitted). 

“The party requesting that we overturn precedent bears a 

substantial burden of persuasion.” Andrews, 77 M.J. at 399 

(citation omitted) (internal quotation marks omitted). In 

addition, a “party must present a ‘special justification’ for 

us to overrule prior precedent.” Blanks, 77 M.J. at 242

(quoting Kimble v. Marvel Ent., LLC, 576 U.S. 446, 456

(2015)).
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50

C. Discussion

On its face, Dock controls the disposition of the instant 

issue and Appellant has not met his burden of persuading 

us that Dock should be overturned. First, although reasonable minds could differ about whether Dock was poorly reasoned, and although there is little case law that demonstrates military courts’ application of Dock,22 its holding is 

not unworkable. Indeed, the military judge’s analysis in 

Appellant’s case exemplifies this point. She applied Dock

without difficulty and persuasively reasoned that if Appellant were permitted to plead guilty to unpremeditated 

murder and attempted premeditated murder, under the 

facts of this case, “[i]t would be possible for [Appellant] to 

be convicted of the charged capital offense without presenting any additional evidence.” Similarly, the military judge 

readily identified that accepting pleas of guilty from Appellant to unpremeditated murder and attempted unpremeditated murder where “the factual predicate in this particular case [was] the killing of 13 people over a period of 

time . . . would be the factual equivalent to pleading guilty 

to a capital offense in violation of Article 45 of the [UCMJ].”

Appellant complains that “[a]t the time of a guilty plea, 

the record’s ‘four corners’ have not yet been developed.” Appellant’s Brief at 113. However, this point is of little concern. Article 45(a) states in pertinent part, “[i]f an accused 

. . . after a plea of guilty sets up matter inconsistent with 

the plea, . . . a plea of not guilty shall be entered in the 

22 In United States v. Simoy, 46 M.J. 592, 620 (A.F. Ct. Crim. 

App. 1996), rev’d in part on other grounds 50 M.J. 1 (C.A.A.F. 

1998), the United States Air Force Court of Criminal Appeals 

found that the military judge did not abuse his discretion by 

applying Dock to prohibit the appellant’s pleas of guilty to 

conspiracy to commit robbery, attempted murder, and armed 

robbery in a capital felony murder case due to the “substantial 

risk” that Article 45(b) might be violated. However, as Appellant 

highlights, at trial in this case the Government argued that 

Simoy is “an anomaly in Article 45(b) jurisprudence and has 

little precedential value.” Reply Brief at 51 (internal quotation 

marks omitted).
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51

record, and the court shall proceed as though he had 

pleaded not guilty.” In essence, military judges have a duty 

to correct a guilty plea, so they are obligated to correct 

guilty pleas entered in contravention of Article 45(b). Appellant also complains that an accused would have no recourse “if, after the record develops, there is no de facto

plea.” Appellant’s Brief at 113. However, an accused in that 

position would have appellate recourse.

Second, we reject Appellant’s argument that our precedent in Dock should be overturned because McCoy’s purported constitutional right of autonomy to concede guilt at 

trial constitutes an “intervening event.” As we have explained, the holding of McCoy dealt with a different problem than the one allegedly present in this case—that of 

counsel overriding a criminal defendant’s choice to plead

not guilty as opposed to the sovereign’s ability to compel a 

criminal defendant to plead not guilty. 138 S. Ct. at 1505.

Therefore, McCoy does not serve as an intervening event

that would undermine Dock.

Third, it is unclear whether the expectations of servicemembers would be undermined if we were to overrule 

Dock. Cf. Quick, 74 M.J. at 337 (noting in the context of the 

authority of Courts of Criminal Appeals to order sentenceonly rehearings that “it is difficult to quantify the expectations of servicemembers”). However, servicemembers theoretically have relied on this Court’s Article 45(b) de facto 

guilty plea precedents, like Dock, to protect their right to 

not be induced into pleading guilty in capital cases, as this 

right “has become an established component of the military 

justice system.” Id.

Fourth, contrary to Appellant’s contention, we believe 

that departing from Dock would undermine the public’s 

confidence in the law. Dock has been binding precedent of 

this Court for thirty-four years, and in turn, it is based on 

a sixty-five-year precedent—McFarlane. This Court has 

observed that: “Just as overturning precedent can undermine confidence in the military justice system, upholding 

precedent tends to bolster [the public’s] confidence in the 

law.” Andrews, 77 M.J. at 401.
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52

Also, the Supreme Court has recognized that “long congressional acquiescence . . . enhance[s] even the usual precedential force we accord to our interpretations of statutes.” 

Watson v. United States, 552 U.S. 74, 82-83 (2007) (citation 

omitted) (internal quotation marks omitted). For many 

years, Congress did not disturb Dock’s de facto guilty plea 

interpretation of Article 45(b). Although Congress recently 

amended Article 45(b), it did so only for cases referred to 

courts-martial on or after January 1, 2019. National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 

114-328, § 5542(a), (c)(2), 130 Stat. 2000, 2967-68 (2016). 

That the legislative body with the constitutional power to 

make rules for the armed forces chose to not retroactively 

apply that amendment to Article 45(b) is a factor that 

members of the public would consider in assessing their 

confidence in the law. See Middendorf, 425 U.S. at 43 (“we 

must give particular deference to the determination of Congress, made under its authority to regulate the land and 

naval forces”).

Thus, these factors weigh against overruling Dock.

However, even if we were to hold that Dock was wrongly 

decided and that Article 45(b)’s prohibition against an accused pleading guilty to a lesser included offense is contrary to the plain language of Article 45(b), UCMJ, Appellant is entitled to no relief because he suffered no prejudice 

under either the harmlessness standard or the harmlessness beyond a reasonable doubt standard.23 Indeed, 

23 Appellant argues that if Dock was wrongly decided, the 

military judge’s error in refusing to take Appellant’s guilty pleas 

to lesser included offenses was structural error because the military judge’s refusal infringed on his protected autonomy interests recognized in McCoy. However, as discussed above, we have 

determined that McCoy does not disturb Dock. Also, structural 

errors “affect the entire conduct of the [proceeding] from beginning to end” while “discrete defects in the criminal process . . . are not structural because they do not necessarily render a criminal trial fundamentally unfair or an unreliable 

vehicle for determining guilt or innocence.” Greer v. United 

States, 141 S. Ct. 2090, 2100 (2021) (first alteration in original) 

(citations omitted) (internal quotation marks omitted). 
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53

application of a prejudice analysis results in an unequivocal result: Appellant was not prejudiced by the military 

judge’s application of Article 45(b).

With regard to findings, even if the military judge 

should have allowed Appellant to plead guilty to the lesser 

included offenses, Appellant could not have been prejudiced by this alleged error because the only result was that 

Appellant’s guilt was subjected to adversarial testing. And 

through that testing, Appellant was found guilty.

With regard to sentencing, although we recognize in a 

capital case an accused may benefit from pleading guilty as 

part of a concerted effort to accept responsibility and to 

demonstrate contrition for his or her heinous criminal conduct, that scenario simply does not apply here. Appellant 

demonstrated no remorse during his opening statement 

and did not put on a sentencing case or give a sentencing 

argument. And importantly, he went so far as to affirmatively reject the military judge’s offer to instruct the panel 

members that he attempted to plead guilty but was not permitted to do so by operation of law. Under these circumstances, we conclude that even if the military judge’s application of Dock constituted error, Appellant experienced no 

prejudice. 

Consistent with these definitions, prohibiting an accused from 

pleading guilty is not a structural error. Furthermore, the Supreme Court has stated that “[o]nly in a ‘very limited class of 

cases’ has the Court concluded that an error is structural, and 

‘thus subject to automatic reversal’ on appeal.” Id. at 2099-2100 

(quoting Neder, 527 U. S. at 8). And in Matthews, 16 M.J. at 363, 

a case that predated Dock, this Court’s predecessor applied a 

prejudice analysis to a military judge’s refusal to accept a plea 

to premeditated murder and rape in a capital case, thereby 

demonstrating in an analogous situation, that we have not considered the prohibition of a guilty plea to a capital offense to constitute structural error.
United States v. Hasan, No. 21-0193/AR

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54

Issue VI: Whether the Prosecutor’s Sentencing Argument Impermissibly Invited the Panel to Make 

its Determination on Caprice and Emotion24

Appellant asserts that the trial counsel engaged in prosecutorial misconduct during his sentencing argument. Specifically, Appellant cites the trial counsel’s reference to a 

victim’s pregnancy at the time of the shooting, his purported appeal to the members’ emotions, and his use of 

first-person plural pronouns while addressing the members. For the reasons provided below, we conclude that Appellant is not entitled to the new sentencing hearing which 

he seeks.

I. Background

Over Appellant’s objection at trial, the military judge 

admitted evidence that Private E-2 (PV2) FV, one of the 

soldiers whom Appellant had killed, was pregnant at the 

time of the offense.25 Specifically, in order to establish that 

Appellant acted with premeditation when he killed her, the 

Government offered evidence that Appellant shot PV2 FV 

after she screamed “My baby! My baby!”26 The military 

judge ruled that PV2 FV’s shouts of “My baby!” were 

admissible as res gestae evidence.27 In the course of doing 

24 This issue was not raised before the ACCA.

25 The Government did not charge Appellant with the unborn 

child’s death.

26 In essence, the trial counsel’s argument was as follows: 

PV2 FV’s pleas of “My baby! My baby!” were intended to communicate, “Don’t shoot me. I’m pregnant.” The fact that Appellant shot PV2 FV after this plea showed that the act was premeditated.

27 Res gestae is defined as “[t]he events at issue, or other 

events contemporaneous with them.” Black’s Law Dictionary

1565 (11th ed. 2019). This Court has explained, “Res gestae 

evidence is vitally important in many trials. It enables the 

factfinder to see the full picture so that the evidence will not be 

confusing and prevents gaps in a narrative of occurrences which 

might induce unwarranted speculation.” United States v. Metz, 

34 M.J. 349, 351 (C.M.A. 1992) (footnote omitted) (citation 

omitted).
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55

so, she conducted a Military Rule of Evidence 403 

balancing test.

In its opening statement, the Government drew 

attention to PV2 FV’s screams of “My baby, my baby.” 

Likewise, during the merits phase of the trial, various 

witnesses of the shooting testified that they heard her 

shouts. PV2 FV’s supervisor and a medical examiner also 

testified, and they confirmed that PV2 FV was pregnant at 

the time of the attack.

After Appellant was convicted, PV2 FV’s father was 

called as a witness during the Government’s sentencing 

case. He testified in relevant part: “That man did not just 

kill 13 [people]—he killed 15. He killed my [unborn] grandson, and he killed me, slowly.” Additionally, the Government placed PV2 FV’s pregnancy into evidence at sentencing by recalling her supervisor to testify to his efforts to 

keep her in Iraq, where she had been deployed, after learning of her pregnancy.

During the Government’s sentencing argument, trial 

counsel summarized the lives of the victims Appellant 

killed, how they died, and their loved ones’ discovery of 

their deaths. In this context, trial counsel said the following about PV2 FV:

[PV2 FV] —a mother’s thoughts [sic] not for herself, not for her own life, but for that of her unborn 

child. [PV2 FV], 21, whose final words were, “My 

baby! My baby!” A single bullet punctured her 

lungs and her heart; a single bullet ended her life, 

and that of her unborn child, and broke her father’s heart.

Death is fickle. A single bullet—two lives lost, and 

a father’s changed forever.

Trial counsel later emphasized, “[Appellant] ignored pleas 

for help, cries of terror, the cries of a mother.” (Emphasis 

added.)

Counsel concluded the Government’s sentencing argument as follows:

For his crimes, he should forfeit his life.
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56

There is a price to be paid for the mass murder he 

perpetrated on 5 November. There is a price to be 

paid for what he did, for the lives he took, the lives 

he horrifically changed, and the pain and sorrow 

he wrought.

You should, however, have mercy in your sentence. It should speak to the 13 souls who have departed our formation. You should reserve your 

emotion for their souls, and your compassion for 

their families, and your mercy for their memory.

For the accused, he should be given an accounting; 

he should be given a reckoning—a reckoning for 

his crimes, and for his crimes, he should pay a 

price.

. . . He will never be a martyr because he has nothing to give.

Do not be misled. Do not be confused. Do not be 

fooled. He is not giving his life. We are taking his 

life. This is not his gift to God; this is his debt to 

society. This is not a charitable act; this is the cost 

of his murderous rampage. He will not now, and 

he never will be, a martyr. He is a criminal. He is 

a cold-blooded murderer. On 5 November, he did 

not leave this earth; he remained to pay a price. 

He remained to pay a debt—the debt he owes is 

his life.

(Emphasis added.)

At no time did Appellant object to the Government’s 

sentencing argument, and he did not present a sentencing 

case or argument of his own. 

Subsequently, the military judge instructed the 

members that Appellant “is to be sentenced only for the 

offenses of which he has been found guilty.” She later 

added, “You are advised that the arguments of the trial 

counsel, and his recommendations, are only his individual 

suggestions, and may not be considered as the 

recommendation or opinion of anyone other than such 

counsel.” The military judge continued:

You also heard testimony from the father of one of 

the victims that he and his unborn grandchild 
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57

were victims of the accused’s crimes. You may 

only consider this as evidence of the emotional impact on the victim’s family. You must bear in mind 

that the accused is to be sentenced only for the offenses of which he has been found guilty.

Appellant now argues that “[t]he gratuitous and repeated references to a victim’s pregnancy” as well as “the 

specific call to the panel to use their emotion for those who 

have left ‘our formation’ ” amounted to improper argument 

and constituted plain error. Appellant’s Brief at 117. Appellant also argues that the trial evidence of PV2 FV’s pregnancy was unnecessary for its professed purpose—to prove 

premeditation—and that most such references were irrelevant. He alleges that “the government repeatedly put her 

pregnancy in evidence in a calculated and impermissible 

effort to emotionally charge the panel,” so that trial counsel 

could “circle[] back during sentencing to” argue a “ ‘single 

bullet—two lives lost.’ ” Id. at 126. 

In response, the Government argues that “trial counsel 

fairly and appropriately argued the aggravating factors 

from evidence adduced at trial.” Appellee’s Brief at 94. Specifically, the Government contends that it was fair and accurate commentary for trial counsel to note during sentencing argument that Appellant had killed a pregnant woman 

and her unborn child. Furthermore, the Government asserts that the trial counsel did not “impermissibly invite 

the panel to impose the death penalty based on sheer emotion,” and that it was not erroneous for the trial counsel to 

use first-person personal pronouns in the context which he 

did. Id. at 99. 

In the alternative, the Government asserts that if any 

of the trial counsel’s sentencing arguments constituted error, those errors were harmless. In support of this position, 

the Government contends that the severity of any misconduct was minimal, the military judge’s sentencing instructions cured any error, and “the egregiousness of Appellant’s 

crimes and the great weight of the evidence supporting 

[his] sentence demonstrate that any error in the sentencing 

argument was not prejudicial.” Id. at 105. Thus, the 
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58

Government argues, even “if this Court finds error, it 

should still be confident that Appellant was sentenced on 

the basis of the evidence alone.” Id. at 94.

II. Standard of Review 

When an appellant challenges trial counsel’s sentencing 

argument for the first time on appeal, this Court reviews 

for plain error. United States v. Norwood, 81 M.J. 12, 19 

(C.A.A.F. 2021). Under this standard of review, an appellant ordinarily bears the burden not only of establishing 

that there is error and that the error is clear or obvious, but 

also that the error materially prejudices a substantial 

right. Id. at 19-20. However, in those instances where a 

clear or obvious error rises to the level of a constitutional 

violation, the burden shifts to the government to “show 

that the error was harmless beyond a reasonable doubt.” 

Tovarchavez, 78 M.J. at 462 n.6.

III. Applicable Law

Under this Court’s precedent:

 Prosecutorial misconduct occurs when trial 

counsel overstep[s] the bounds of that propriety 

and fairness which should characterize the conduct of such an officer in the prosecution of a criminal offense. Prosecutorial misconduct can be generally defined as action or inaction by a prosecutor 

in violation of some legal norm or standard, e.g., a 

constitutional provision, a statute, a Manual rule, 

or an applicable professional ethics canon.

United States v. Hornback, 73 M.J. 155, 159-60 (C.A.A.F. 

2014) (alteration in original) (citations omitted) (internal 

quotation marks omitted). “During sentencing argument, 

‘the trial counsel is at liberty to strike hard, but not foul, 

blows.’ ” United States v. Halpin, 71 M.J. 477, 479 

(C.A.A.F. 2013) (quoting United States v. Baer, 53 M.J. 235, 

237 (C.A.A.F. 2000)). Trial counsel may “argue the evidence of record, as well as all reasonable inferences fairly 

derived from such evidence,” but “may not . . . inject his 

personal opinion into the panel’s deliberations, inflame the 

members’ passions or prejudices, or ask them to convict the 

accused on the basis of criminal predisposition.” United 
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59

States v. Sewell, 76 M.J. 14, 18 (C.A.A.F. 2017) (citations 

omitted) (internal quotation marks omitted). 

Trial counsel’s argument must be “ ‘viewed in context’ ” 

because “it is improper to ‘surgically carve’ out a portion of 

the argument with no regard to its context.” Baer, 53 M.J. 

at 238 (citations omitted); see also id. (“ ‘If every remark 

made by counsel outside of the testimony were ground for 

a reversal, comparatively few verdicts would stand, since 

in the ardor of advocacy, and in the excitement of trial, 

even the most experienced counsel are occasionally carried 

away by this temptation.’ ” (quoting Dunlop v. United 

States, 165 U.S. 486, 498 (1897))).

In capital cases, “[t]he penalty phase . . . is undertaken 

to assess the gravity of a particular offense and to determine whether it warrants the ultimate punishment.” 

Monge v. California, 524 U.S. 721, 731-32 (1998). The Supreme Court has long recognized that “capital sentencing 

must be reliable, accurate, and nonarbitrary.” Saffle v. 

Parks, 494 U.S. 484, 493 (1990). In this regard, “ ‘[i]t is of 

vital importance’ that the decisions made in that context 

‘be, and appear to be, based on reason rather than caprice 

or emotion.’ ” Monge, 524 U.S. at 732 (quoting Gardner v. 

Florida, 430 U.S. 349, 358 (1977)).

“In the plain error context, we determine whether the 

cumulative effect of an improper sentencing argument impacted ‘the accused’s substantial rights and the fairness 

and integrity of his trial.’ ” Akbar, 74 M.J. at 394 (quoting 

Halpin, 71 M.J. at 480). To perform this inquiry, we “examine[] ‘whether trial counsel’s comments, taken as a 

whole, were so damaging that we cannot be confident that 

the appellant was sentenced on the basis of the evidence 

alone.’ ” Id. (quoting Halpin, 71 M.J. at 480). In assessing 

prejudice for improper sentencing argument, this Court 

“balance[s (1)] the severity of the improper argument, 

[(2)] any measures by the military judge to cure the improper argument, and [(3)] the evidence supporting the 

sentence.” United States v. Marsh, 70 M.J. 101, 107 

(C.A.A.F. 2011) (citing United States v. Erickson, 65 M.J. 

221, 224 (C.A.A.F. 2007)). This Court has “reiterat[ed] that 
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60

in cases of improper argument, each case must rest on its 

own peculiar facts.” Baer, 53 M.J. at 239.

IV. Discussion

As an initial matter, we reject Appellant’s contention 

that the military judge erred by admitting into evidence 

the fact that PV2 FV was pregnant and that she shouted 

“My baby! My baby!” The evidence of PV2 FV’s pregnancy 

and her screams was properly admitted as res gestae.28

The witnesses of the shooting who testified they heard PV2 

FV’s shouts were merely relaying to the members their observations. The only potentially problematic witnesses 

were PV2 FV’s supervisor who testified as to her reason for 

redeployment, and the medical examiner who confirmed 

her pregnancy. However, the supervisor’s testimony was 

relevant for the purpose of explaining why PV2 FV was at 

the Soldier Readiness Processing center on November 5, 

and the medical examiner’s testimony merely confirmed 

what the members had already heard—that PV2 FV was 

pregnant.

Moreover, regardless of the merits of admitting this evidence during findings, in the context of the issue presented 

we note that PV2 FV’s pregnancy was relevant for sentencing as evidence in aggravation. R.C.M. 1001(b)(4) (2008 

ed.) states in part: “Evidence in aggravation includes, but 

is not limited to, evidence of financial, social, psychological, 

and medical impact on or cost to any person or entity who 

was the victim of an offense committed by the accused.”29

And “it is appropriate for trial counsel ‘to argue the evidence of record, as well as all reasonable inferences fairly 

28 We acknowledge that the alternative rationale provided by 

the Government for why this evidence was admissible seems to 

be a closer call, but there is an insufficient basis for us to conclude that the military judge abused her discretion by admitting 

this evidence for “the limited purpose of its relevance, if any, to 

premeditation and the intent to kill.” 

29 R.C.M. 1004(b) (2008 ed.) provides that “the provisions [of] 

R.C.M. 1001” apply to capital cases.
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61

derived from such evidence.’ ” Sewell, 76 M.J. at 18 (quoting Baer, 53 M.J. at 237). 

Appellant contends that trial counsel’s “multitude [of] 

references to PV2 FV’s pregnancy” was “a calculated and 

impermissible effort to emotionally charge the panel” and 

constituted prosecutorial misconduct in sentencing argument. Appellant’s Brief at 126. However, “[v]ictim impact 

testimony is admissible in capital cases to inform the panel 

about ‘the specific harm caused by [the accused].’ ” Akbar, 

74 M.J. at 393 (second alteration in original) (quoting 

Payne v. Tennessee, 501 U.S. 808, 825 (1991)). And the 

death of her unborn child was “directly relat[ed] to or result[ed] from” the offense of PV2 FV’s killing, of which Appellant was convicted. R.C.M. 1001(b)(4) (2008 ed.).

Additionally, Appellant’s claim that “the members were 

led to believe there was an unnamed, fourteenth victim on 

the charge sheet,” is unpersuasive. Appellant’s Brief at 

126. As a general matter, the military judge instructed the 

panel that Appellant was “to be sentenced only for the offenses of which he has been found guilty,” and there was 

no “fourteenth victim” whom Appellant was found guilty of 

killing. Moreover, the members were explicitly instructed 

by the military judge that, despite the testimony of PV2 

FV’s father that “he and his unborn grandchild were victims” of Appellant’s crimes, the members could “only consider this as evidence of the emotional impact on the victim’s family . . . . [And were required to] bear in mind that 

the accused is to be sentenced only for the offenses of which 

he has been found guilty.” Absent evidence to the contrary, 

we presume the members understood and followed the military judge’s instructions on this issue. See United States v. 

Piolunek, 74 M.J. 107, 111 (C.A.A.F. 2015). For these reasons, trial counsel did not commit misconduct by referencing PV2 FV’s pregnancy during his sentencing argument.

Appellant also contends that it was error for the trial 

counsel to argue: “You should reserve your emotion for [the 

victims’] souls, and your compassion for their families, and 

your mercy for their memory.” Appellant asserts that this 

was an improper appeal to emotion that is impermissible 
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62

during sentencing. Although it is true that the trial counsel 

used the term “emotion” during this portion of his sentencing argument, it cannot be said that he improperly urged 

the panel members to use their emotions when devising a 

proper sentence for Appellant. To the contrary, the trial 

counsel urged the panel members to “reserve” their emotions for other purposes, and he grounded his overall sentencing argument on the following proposition: “[M]embers 

of the panel, because of what [Appellant] did, because of 

who he did it to, because of where he did it, and because of 

when he did it, the just and appropriate sentence in this 

case is death.” (Emphasis added.) Stated differently, the 

trial counsel asked the panel members to sentence Appellant “for his crimes.” Thus, in its totality, this line of argument was appropriate.30

Finally, we will assume without deciding for purposes 

of this appeal that trial counsel’s use of first-person plural 

pronouns (“our” and “we”) were improper when he referred 

to Appellant’s victims as those “who have departed our formation” and when he stated “we are taking his life.” (Emphasis added.) See People v. Wheeler, 871 N.E.2d 728, 748 

(Ill. 2007) (“[I]t is improper for a prosecutor to utilize closing argument to forge an ‘us-versus-them’ mentality that is 

inconsistent with the criminal trial principle that a jury 

fulfills a nonpartisan role . . . .”).

Turning to the issue of prejudice, we will assume without deciding that—because this was a capital case—the 

trial counsel’s improper arguments were of a constitutional 

30 Appellant also argues that the context of the Government’s 

sentencing argument included “heavy undertones of war.” Appellant’s Brief at 129. However, we agree with the Government 

that it was Appellant who set this tone in his opening statement, 

making such remarks as, “And the dead bodies will testify that 

war is an ugly thing,” and “[t]he evidence will show . . . that I 

was on the wrong side [of] America’s war on Islam. But then I 

switched sides.” Under these circumstances, to the extent the 

Government’s sentencing argument contained “undertones of 

war,” we find such commentary was not impermissible within 

the context of the entire proceedings.
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63

dimension.31 As a consequence, the Government has the 

burden of proving “the error was harmless beyond a reasonable doubt . . . on plain error review.” United States v. 

Palacios Cueto, 82 M.J. 323, 334 (C.A.A.F. 2022). 

For the following reasons, we conclude that the Government has met this burden. First, the record before us 

demonstrates that this improper argument was isolated,

and it was not severe. See Norwood, 81 M.J. at 20 (finding 

no severe conduct where the improper argument “only 

made up a few lines of [the] rebuttal argument”). Second, 

although the military judge did not take any measures to 

cure these fleeting improper comments, the evidence 

properly before the panel members included many aggravating circumstances such as Appellant’s murder of thirteen active duty or retired soldiers, his attempted murder 

of thirty-two other people (many of whom were grievously 

wounded), and the violation of the oaths he had taken as 

both an Army officer and a physician. See Akbar, 74 M.J. 

at 394. This evidence in aggravation was particularly damaging to Appellant’s case in light of the fact that he offered 

no evidence in extenuation or mitigation, and he delivered 

no sentencing argument to the panel members.

Because of the relevant law and the facts of this case, 

we conclude that Appellant is not entitled to a new sentencing hearing. 

Issue VII: Whether the Continued Forcible Shaving 

of Appellant Is Punishment in Excess of the 

Sentence He Received at His Court-Martial and 

Violated Article 55 and the Eighth Amendment

Appellant identifies as “a devout Muslim who earnestly 

believes that the wearing of a beard is an important tenet 

of his faith.” Appellant’s Brief at 130. Appellant asserts in 

his briefs that he was forcibly shaved before and after trial

31 As Appellant emphasizes in his brief, “Some courts have 

tested improper arguments in capital cases for constitutional error because such error implicates an accused’s Eighth Amendment right to a reliable death judgment.” Appellant’s Brief at 

124 (citing Duckett v. Mullin, 306 F.3d 982, 992 (10th Cir. 2002)).
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64

and that he was punished by personnel at the U.S. 

Disciplinary Barracks (USDB) for defying orders to shave. 

According to Appellant, these alleged forcible shavings 

violated Article 55, UCMJ,32 and the Eighth Amendment 

of the Constitution which prohibit the infliction of cruel 

and unusual punishment, violated the prohibition against 

imposing punishment in excess of that adjudged at trial, 

and violated the Religious Freedom Restoration Act 

(RFRA),33 which prohibits the government from 

“imping[ing] on the free exercise of religion without having 

a compelling governmental interest in doing so.” Id. at 130. 

We are not persuaded.

I. Background

After Appellant’s sentence was adjudged on August 28, 

2013, he periodically filed requests for exemptions to the 

grooming standards under the applicable Army regulations

on religious grounds. For example, in September of 2013, 

Appellant asked for an exception to the grooming policy because of his religious beliefs as a practicing Muslim. The 

Deputy Chief of Staff of the Army denied Appellant’s request. In his memorandum to Appellant, Lieutenant General (LTG) Bromberg stated: “Though an inmate, you nonetheless interact with Soldiers who abide by these 

standards, and who know that you are an officer. Granting 

you an exception would erode the values, discipline, and 

team identity that arises from the even-handed application 

of grooming standards throughout the Army.” 

In December of 2016, Appellant submitted another request for an exemption from the grooming policy. After 

meeting with Appellant, a military chaplain wrote in a 

memorandum-for-record that although there is no religious 

law requiring Muslim men to wear beards, many Muslim 

men regard it as an important religious practice. The military chaplain also determined that Appellant’s request 

32 10 U.S.C. § 855 (2012).

33 42 U.S.C. §§ 2000bb to 2000bb-4 (2012).
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65

appeared to stem from Appellant’s “genuine religious belief 

and personal understanding of his faith.” Appellant’s request on that occasion was denied—in accordance with the 

recommendations of Appellant’s chain of command—by the 

Senior Official Performing the Duties of the Assistant Secretary of the Army (Manpower and Reserve Affairs).

As of July 19, 2021, however, Appellant has been allowed to wear a beard in observance of his Islamic faith, 

but it must be no longer than a quarter inch in length. Appellant claims in his briefs that because he wants to let his 

beard grow longer than the authorized length in order to 

follow his sincerely held religious beliefs, he is forcibly 

shaved every other week. He also claims that every time he 

is forcibly shaved “he receives further demerits and is denied benefits as a result.” Appellant’s Brief at 147.

II. Discussion

Appellant’s Article 55 and Eighth Amendment claims 

fail for the crucial reason that the record before us is devoid 

of any evidence that Appellant has, in fact, been forcibly 

shaved. The relevant portion of the record only contains 

documents related to Appellant’s requests for an exception 

to the Army’s grooming policy and the subsequent denials 

of those requests. Thus, we are forced to rely solely on the 

appellate defense counsel’s bare representations by 

“information and belief” that Appellant was forcibly

shaved. Appellant’s Brief at 135, 137. But we note that in 

prior litigation pertaining to Appellant’s desire to grow a 

beard, we stated the following: “[Appellant’s] commander 

denied his request [to grow his beard] and directed him to 

comply with the Army’s grooming standards, but took no 

further action to enforce Appellant’s compliance.” Hasan v. 

Gross, 71 M.J. 416, 417 (C.A.A.F. 2012) (emphasis added). 

We further note that Appellant appeared at a pretrial 

session with a beard, and the military judge’s order to 

shave was vacated. Id. at 419. Therefore, in the instant 

appeal the defense’s failure to document in the record that 

Appellant was forcibly shaved is factually significant and 

legally consequential.
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66

Moreover, although in their briefs the defense counsel 

claim by “information and belief” that Appellant was forcibly shaved, they provide no information or description 

about what these “forcible” shavings allegedly entailed. 

Thus, even if we were to assume that the alleged forcible 

shavings did in fact occur, in light of the record before us 

we have no basis to divine whether the “force” complained 

of consisted merely of Appellant’s involuntary acquiescence 

to the Army’s grooming policy as he unwillingly shaved 

himself, or whether the alleged incidents of forcible shaving involved some type of physical coercion by USDB personnel. Because the record does not contain this crucial evidence, we find no proper basis to provide relief to 

Appellant.34 See United States v. Ellis, 47 M.J. 20, 22 

(C.A.A.F. 1997) (finding appellant was not entitled to relief 

as there was “no evidence” to support his claim and this 

Court had “only the arguments of appellate counsel”). 

Similarly, Appellant’s argument that we should remand 

this case to the ACCA because the lower court erred in conducting its sentence appropriateness review is unavailing. 

Courts of Criminal Appeals are empowered to review 

prison condition claims “if the record contains information 

about those conditions.” United States v. Willman, 81 M.J. 

355, 358 (C.A.A.F. 2021) (internal quotation marks omitted) (quoting United States v. Jessie, 79 M.J. 437, 441

(C.A.A.F. 2020)). And an appellant can properly add material to the record about prison conditions in the course of 

filing a clemency petition with the convening authority. See 

Jessie, 79 M.J. at 444. But here, Appellant did not present 

to the convening authority any claim regarding confinement facility policies, despite submitting a 450-page handwritten clemency submission. Therefore, nothing in the record before the ACCA raised an issue regarding the purported shavings. Accordingly, the ACCA did not err in 

34 For the reasons stated in his concurrence in United States 

v. Pullings, 83 M.J. 205, 214-22 (C.A.A.F. 2023) (Hardy, J., concurring in the judgment), Judge Hardy agrees that Appellant is 

not entitled to relief on his Article 55 and Eighth Amendment 

claims.
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67

declining to provide relief to Appellant. See Willman, 81 

M.J. at 361 (“This Court has never held, or even suggested, 

that outside-the-record materials considered to resolve an 

appellant’s cruel and unusual punishment [or unlawful increase in sentence] claims became part of the entire record” 

for sentence appropriateness claims.).

Additionally, Appellant’s claim that the denial of his requested exception from the Army’s grooming policy unlawfully increased his sentence cannot succeed because the 

shaving requirement was a “collateral administrative consequence[] of a sentence” rather than “punishment for purposes of the criminal law.” United States v. Guinn, 81 M.J. 

195, 200 n.3 (C.A.A.F. 2021) (internal quotation marks 

omitted) (quoting United States v. Pena, 64 M.J. 259, 265 

(C.A.A.F. 2007)). And similar to our analysis above in the

context of Article 55 and the Eighth Amendment, Appellant’s related claim that being forcibly shaved unlawfully 

increased his sentence does not merit scrutiny because he 

has not documented this assertion in the record.

To the extent the record before us does document the 

rejection of Appellant’s requests for a religious accommodation from the Army’s beard policy, and to the extent 

these rejections rise to the level of a RFRA violation, Appellant still is not entitled to relief from this Court. Simply 

stated, stand-alone RFRA claims and the resulting denial 

of prison privileges are not justiciable in this Court because 

our statutory mandate does not extend to the resolution of 

such matters. See Article 67(c), UCMJ (2012) (limiting review “with respect to the findings and sentence” of a courtmartial).

To the extent that Appellant seeks to argue that a 

RFRA violation automatically constitutes an Article 55 

and/or Eighth Amendment violation—both of which are

justiciable in this Court—we note that the analytical 

frameworks are different. Compare United States v. Sterling, 75 M.J. 407, 415 (C.A.A.F. 2016) (“To establish a 

prima facie RFRA defense, an accused must show by a preponderance of the evidence that the government action 

(1) substantially burdens (2) a religious belief (3) that [the 
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Opinion of the Court

68

accused] sincerely holds.”), and 42 U.S.C. § 2000bb-1(a) 

(generally prohibiting the government from “substantially 

burden[ing] a person’s exercise of religion”), with United 

States v. Lovett, 63 M.J. 211, 215 (C.A.A.F. 2006) (stating 

that for Article 55 or Eighth Amendment claims, an appellant must show “(1) an objectively, sufficiently serious act 

or omission resulting in the denial of necessities; (2) a culpable state of mind on the part of prison officials amounting to deliberate indifference to [his] health and safety; and 

(3) that he has exhausted the prisoner-grievance system

. . . and that he has petitioned for relief under Article 138, 

UCMJ” (alteration in original) (footnotes omitted) (internal 

quotation marks omitted)). 

As a result, even if we were to assume that Appellant’s 

rights under RFRA were violated, that fact standing alone 

does not serve as a sufficient basis to conclude that his 

Eighth Amendment and Article 55 claims are meritorious. 

Stated differently, we do not adopt Appellant’s apparent 

argument that the alleged RFRA violation here—the denial of an exception to the Army’s grooming policy—was, 

standing alone, “an objectively, sufficiently serious act or 

omission resulting in the denial of necessities” that automatically constituted a violation of the Eighth Amendment. Lovett, 63 M.J. at 215. As highlighted by the Government in its brief, the defense has pointed to no federal court 

decision that has predicated an Eighth Amendment violation upon a deprivation of religious liberty. Indeed, as the 

Ninth Circuit opined, “[A]n institution’s obligation under 

the [E]ighth [A]mendment is at an end if it furnishes sentenced prisoners with adequate food, clothing, shelter, sanitation, medical care, and personal safety.” Hoptowit v. 

Ray, 682 F.2d 1237, 1246 (9th Cir. 1982) (first alteration in 

original) (citation omitted) (internal quotation marks omitted). We also emphasize that Appellant has not demonstrated “a culpable state of mind” from prison officials that 

amounts to “deliberate indifference” to his health and 

safety. Lovett, 63 M.J. at 215. At bottom, Appellant needed 

to show more to succeed on this claim on appeal, and he 

failed to do so.
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69

In sum, in light of the absence of any evidence to support Appellant’s assertions that he was forcibly shaved, Appellant is not entitled to relief on his Article 55 and Eighth 

Amendment claims. Further, in terms of Appellant’s argument that the requirement to comply with the Army’s 

grooming policy constituted punishment in excess of his 

sentence, that claim fails because the shaving requirement 

was a collateral administrative consequence of Appellant’s 

sentence. And finally, Appellant’s stand-alone RFRA claim 

is not justiciable by this Court because resolving such an 

issue would extend beyond this Court’s statutory mandate.

Issue VIII: Whether Appellant Was Deprived [of] 

His Right to Counsel During Post-Trial Processing35

Although initially represented by counsel during the 

clemency process, Appellant ultimately opted to represent 

himself during post-trial proceedings. He now asserts that 

he was deprived of his right to counsel during this period. 

In determining the merits of his claim, we will assume that 

Appellant’s decision to proceed pro se during post-trial 

clemency proceedings was valid only if he knowingly, voluntarily, and intelligently waived the right to counsel. 

Upon doing so, we conclude that Appellant’s waiver was 

valid.

I. Background

After Appellant was convicted of his offenses, the military judge and standby counsel advised Appellant of his 

post-trial rights. Key among these rights was Appellant’s 

ability to submit matters for the convening authority’s consideration when he was deciding whether to approve the 

findings and sentence. 

After his sentence was announced, Appellant stated 

that he wanted one of his standby counsel, “Lieutenant 

Colonel [KP],” to represent him during post-trial matters. 

On January 29, 2015, an Article 39(a), UCMJ, session was 

held to discuss Appellant’s post-trial representation. At 

that session, Appellant reiterated his desire to have LTC 

35 This issue was not raised before the lower court. 
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70

KP serve as his post-trial representative. However, in his 

brief before this Court, Appellant vaguely states that LTC 

KP subsequently “left the case,” and a civilian defense 

counsel entered an appearance. Appellant’s Brief at 148. 

The staff judge advocate (SJA) subsequently prepared 

an SJA recommendation (SJAR) advising the convening 

authority to approve the adjudged sentence. In response, 

the civilian defense counsel prepared to submit matters for 

the convening authority’s consideration under R.C.M. 1105

and R.C.M. 1106. However, on February 13, 2017, shortly 

before his post-trial submissions were due, Appellant presented a handwritten letter to the SJA stating:

Effective immediately, I Nidal Hasan the 

accused . . . am representing myself soley [sic] in 

the matter of the submission of post-trial matters 

pursuant to Rules for Court-Martial (R.C.M.)

1105 and 1106. In this capacity my only 

submission to the . . . convening authority . . . is a 

piece entitled “Mans [sic] Duty to His Creator and 

the Purpose of Life” . . . . Please don’t involve any 

lawyers for as I have clearly stated above I am 

representing myself and understand the 

consequences. . . . The presiding judge (Colonel 

[Osborn]) allowed me to represent myself during 

the trial so you should not hesitate to do so now in 

these post-trial matters.

The SJA responded to the letter by writing Appellant’s 

civilian defense counsel: 

Given that we have yet to receive any formal 

notice of your release as counsel to the Accused, I 

forward a copy of the Accused’s letter, enclosed, to 

you and ask that you immediately clarify what 

matters the Convening Authority should consider 

before taking Action. 

It has now been over a year since matters were 

originally due in this case. I will advise the Convening Authority to take initial Action. I ask that 

you provide a response to this office on or before 

March 2, 2017.

The civilian defense counsel’s response is not in the record before us. However, in a reply letter from March 13, 
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71

2017, the SJA indicated she had received an email from the 

civilian defense counsel on March 2. In that reply letter to 

the civilian defense counsel, the SJA confirmed:

In accordance with the Accused’s and your request, the only post-trial defense matters the Convening Authority will consider, prior to taking initial Action, are: the Accused’s handwritten 

manuscript . . .; and the Accused’s one-page handwritten letter to the Staff Judge Advocate, dated 

13 February 2017. These matters constitute the 

entirety of the defense’s post-trial submission, 

pursuant to RCM 1105 and 1106 and Article[s]

38(c) and 60 of the UCMJ.

According to Appellant, there is no indication that any 

other pertinent communications occurred, whether 

between the SJA and Appellant or between the SJA and 

Appellant’s counsel, about waiving his post-trial right to 

counsel.

Before this Court, Appellant now argues that the SJA 

needed to inquire further into whether Appellant knowingly waived his right to counsel for post-trial proceedings. 

Citing no legal authority, he asserts that this “inquiry 

must, at the very least, naturally lie somewhere between 

the thorough colloquy for waiver at trial and thorough advisement on appeal.” Appellant’s Brief at 150. Appellant

maintains that the inquiry that actually occurred in this 

case was insufficient to ensure that his purported waiver 

of counsel in the post-trial period was “knowing, intelligent, and voluntary” because the “SJA relied on a handwritten note alleging waiver, made no follow up with counsel or the [A]ppellant, and, in fact, continued to engage 

with [the civilian defense counsel] as if [A]ppellant were 

still represented.” Id. at 150-51. 

II. Standard of Review

Whether the right to post-trial counsel was validly 

waived is a question of law we review de novo. See Rosenthal, 62 M.J. at 262; Mix, 35 M.J. at 286. Although Appellant raises this issue for the first time in this Court, the 
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Opinion of the Court

72

parties are in agreement that this de novo standard of review applies in this instance, and we concur.

III. Discussion

In prior cases, we have not identified any particular 

standard that applies when an accused seeks to waive the 

right to counsel and proceed pro se in the clemency process.

See United States v. Knight, 53 M.J. 340, 342 (C.A.A.F. 

2000); cf. Mix, 35 M.J. at 286 (declining to “decide what 

type of inquiry is required” to determine whether an accused may proceed pro se at trial). However, for purposes 

of this appeal we will assume that an accused’s decision to 

proceed pro se during post-trial clemency proceedings is 

valid only if the accused knowingly, voluntarily, and intelligently waived the right to counsel. See Faretta, 422 U.S. 

at 835; see also Tovar, 541 U.S. at 87-88; Knight, 53 M.J. at 

342 (requiring, at a minimum, that an accused’s waiver of 

counsel during the post-trial stage of his or court-martial, 

to include the submission of clemency matters, be “knowing”). This inquiry into whether a waiver was knowing, voluntary, and intelligent is case specific. 

Similarly, in prior cases we have not clearly defined the 

specific steps or inquiries that a military judge or a staff 

judge advocate must make before an accused may validly 

waive his or her right to post-trial counsel. See Mix, 35 M.J. 

at 286 (declining to decide the “exact extent of the inquiry 

necessary to ensure a knowing and intelligent waiver” of 

counsel at trial by a military judge); cf. Tovar, 541 U.S. at 

88 (“We have not, however, prescribed any formula or 

script to be read to a defendant who states that he elects to 

proceed without counsel.”). Rather, we have engaged in a 

case specific review of the record to determine whether 

there were sufficient indicia of a waiver of post-trial representation.

Upon engaging in this inquiry in the instant case, we 

conclude there are five key points which collectively 

demonstrate that Appellant’s waiver of his right to counsel 

was valid. 
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73

First, the military judge advised Appellant on post-trial 

matters, and Appellant signed a “Post-Trial and Appellate 

Rights” form acknowledging that standby counsel had advised him of these rights. The record therefore shows that 

Appellant knew his post-trial rights and their importance, 

to include Appellant’s ability to submit matters for the convening authority’s consideration when he was deciding 

whether to approve the findings and sentence. Cf. United 

States v. Palenius, 2 M.J. 86, 91-92 (C.M.A. 1977) (faulting 

defense counsel for not advising the appellant of the “powers of the [the lower appellate court] and of the defense 

counsel’s role in causing those powers to be exerted”).

Second, in a letter to the SJA, Appellant stated the following: “Effective immediately, I . . . am representing myself . . . . Please don’t involve any lawyers for as I have 

clearly stated above I am representing myself and understand the consequences . . . .” (Emphasis added.)36 Appellant further wrote, “The presiding judge (Colonel [Osborn]) 

allowed me to represent myself during the trial so you 

should not hesitate to do so now in these post-trial matters.” Appellant thus acknowledged he understood the consequences of self-representation. Cf. Palenius, 2 M.J. at 91 

(stating that the accused must be aware “of the consequences of proceeding or of permitting his appeal to proceed without the assistance of an attorney”).

Third, the SJA prudently contacted Appellant’s civilian 

defense counsel to confirm Appellant’s waiver. See United 

States v. Carter, 40 M.J. 102, 105 (C.M.A. 1994) (requiring 

the SJA to notify “defense counsel of appellant’s complaint 

[of counsel’s effectiveness] so that the issue of further representation [can be] resolved”). Although defense counsel’s 

response is not in the record before us, the SJA sent a 

36 This was not a hollow claim. As reflected in Issue I above, 

the military judge repeatedly informed Appellant of the consequences of proceeding pro se at trial. Although Appellant is correct that “clemency is a wholly different stage of the proceeding[s],” Appellant’s Brief at 151, many of the same 

considerations explained to Appellant at trial applied to the 

post-trial process as well. 
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Opinion of the Court

74

follow-up letter notifying Appellant’s counsel as follows: “In 

accordance with the Accused’s and your request, the only 

post-trial defense matters the Convening Authority will 

consider” is Appellant’s pro se material. Significantly, civilian counsel then withdrew his counseled memorandum and 

attachments. 

Fourth, the SJA reported in her SJAR that Appellant 

“further states that he is fully aware of the consequences 

of representing himself, and requests that the Convening 

Authority should allow him to do so, as he was allowed to 

do so during his trial.” This shows that the SJA did not 

have any reason to question Appellant’s sincerity with respect to the waiver.

Fifth and finally, Appellant has not pointed to any record evidence or produced any affidavits suggesting that his

waiver of the right to counsel during post-trial proceedings 

was anything other than voluntary, knowing, and intelligent. Rather, the record before us reveals that Appellant 

willingly submitted a handwritten letter not only stating 

that he wished to proceed pro se but also that he understood the consequences of forgoing his post-trial right to 

counsel, and his counsel then withdrew representation 

without any indication that Appellant objected. 

All of these factors collectively provide us with a sufficient basis to conclude that Appellant’s waiver was knowing, intelligent, and voluntary. Accordingly, we find Appellant validly waived his post-trial right to counsel. 

Issue IX: Whether then-Colonel Stuart Risch Was 

Disqualified from Participating [in] this Case

as the Staff Judge Advocate

Appellant argues that the SJA was disqualified from 

participating in this case because a reasonable person 

would impute to him a personal interest in the outcome of 

Appellant’s prosecution. We disagree. Moreover, even if we 

were to conclude that the SJA was disqualified, we hold 

that Appellant has failed to demonstrate prejudice. 
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75

I. Background

Then-Colonel (COL) Risch37 was the SJA in Appellant’s 

case during the resolution of a number of pretrial matters. 

COL Risch lived with his family at Fort Hood and was on 

the installation the day of the attack. Further, according to 

a defense trial motion: COL Risch’s wife was at home when 

the shootings began and COL Risch called his family to ensure their safety; after receiving assurances from his wife 

that his family was not in danger, COL Risch briefed the 

III Corps Commanding General about the incident; and 

COL Risch remained involved in the case in the days and 

weeks after the shooting and attended various briefings 

about the event itself and the status of the investigation. 

In addition, two members of the Office of the Staff 

Judge Advocate (OSJA)—CPT NF and a civilian paralegal—were present at the Soldier Readiness Processing center when the shooting occurred. Although members of the 

OSJA were initially concerned about the safety of CPT NF 

and the civilian paralegal, neither of them was injured during the attack. Years later, CPT NF provided a declaration 

regarding his interaction with COL Risch on the evening of 

the attack:

After [COL Risch] inquired into my well-being, I 

briefed him as to what I had witnessed . . . .

Several days later, COL Risch spoke to myself and 

[the civilian paralegal] who had rendered first aid 

that day. He mentioned that he had toured the 

medical SRP building the evening of 5 November, 

that it was a difficult experience that would make 

it hard to sleep at night or words to that effect . . . . 

37 “Then-COL Risch” became the Deputy Judge Advocate 

General of the Army while Appellant’s case was pending before 

the ACCA. At that time, he was a Major General (MG). He was 

then promoted to Lieutenant General and became the Judge Advocate General of the Army. For ease of reference, we will henceforth refer to him as COL Risch or MG Risch, as applicable, to 

reflect his rank during the time frames relevant to Issue IX and 

Issue X.
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He suggested that we seek behavioral health assistance as necessary.

More than a year and a half after the attack at Fort 

Hood, in a three-page memorandum dated July 6, 2011, 

COL Risch provided Article 34, UCMJ,38 advice to the convening authority. In this memorandum, COL Risch provided his legal conclusions that each specification alleged 

an offense under the UCMJ, the allegation of each offense 

was warranted by the evidence in the report of investigation, and the court-martial would have jurisdiction over the 

accused and the alleged offenses. COL Risch also noted 

that the company commander, the special court-martial 

convening authority, and the Article 32, UCMJ, investigating officer39 recommended trial by general court-martial, 

and that the special court-martial convening authority and 

the investigating officer further recommended a capital referral. Consistent with this advice, COL Risch recommended that the convening authority refer the case to a 

general court-martial as a capital case. 

As a preface to this advice, COL Risch clarified that the 

convening authority was “not required to take any specific 

action or to dispose of the charges in any particular manner,” but rather that any “action taken [was] to be made 

within [the convening authority’s] sole, independent discretion.” Further, COL Risch spelled out in the memorandum the steps the convening authority should take if he 

decided “to refer the case as non-capital.” After considering 

the SJA’s advice “as well as the requests, written materials, and presentations made . . . by the defense,” the convening authority approved the SJA’s recommendation of a 

capital referral.

Both prior to and subsequent to his recommendations 

to the convening authority, COL Risch also gave advice on 

a variety of other matters, including: (1) panel selection; 

(2) the Government’s requests for expert funding; and 

38 10 U.S.C. § 834 (2006).

39 10 U.S.C. § 832 (2006).
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(3) various defense requests.40 COL Risch recommended 

granting some of these defense requests, denying others, 

and partially granting and denying others still. From the 

record before us, it appears that COL Risch recommended 

granting all the government’s requests for funding.

Appellant claims that COL Risch should have been disqualified from participating as the SJA in this case. Specifically, Appellant contends that a reasonable person would 

impute to COL Risch a personal interest in the outcome of 

the case because: the shootings caused COL Risch to reasonably fear for his family; COL Risch feared for the safety 

of “a member of his OSJA family”; COL Risch “personally 

investigated the scene” the night of the attack; and finally, COL Risch was “part of the Fort Hood community 

that, itself, was a victim of the attack.” Appellant’s Brief at 

156-59. 

As to prejudice, Appellant argues that we should presume prejudice because COL Risch’s pretrial advice probably had some bearing on the convening authority’s decision 

to refer this case as capital. Alternatively, Appellant claims 

that the harmless beyond a reasonable doubt standard 

should apply to our analysis because the participation of a 

40 COL Risch gave advice on defense requests for: access to 

classified material, a meeting with the convening authority, appointment of a media analysis expert, a jury consultant, appointment of an expert military-religious consultant, appointment of 

an expert physiatrist, additional funding for mitigation support, 

additional funding for a psychologist, appointment of a forensic

pathologist, appointment of Defense-Initiated Victim Outreach 

services, temporary duty assignment funds, appointment of an 

expert neurologist to conduct testing on the accused, funds for 

an expert to provide in-court testimony, additional funding for 

the services of the defense’s social science methodology expert, 

appointment of an expert consultant on religious conversion, appointment of an expert on social science methodology, additional 

funding for the services of the defense’s digital forensic examiner, and funding of a crime scene analyst.
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78

disqualified SJA in the processing of a case “is akin to apparent unlawful command influence.” Id. at 160.41

II. Standard of Review

The issue of whether an SJA is disqualified from participating in court-martial proceedings is a question of law 

which we review de novo. United States v. Chandler, 80 

M.J. 425, 429 (C.A.A.F. 2021). 

III. Applicable Law

Article 34 and R.C.M. 406 govern pretrial advice by an

SJA. See R.C.M. 406(b) Discussion (2008 ed.) (“The [SJA] 

is personally responsible for the pretrial advice . . . . unless 

disqualified . . . .”). At the relevant time, R.C.M. 406(a) 

(2008 ed.) required the SJA to give “consideration and advice” “[b]efore any charge [could] be referred for trial by a 

general court-martial.” See also Article 34(a), UCMJ.

R.C.M. 406(b) also specified that the SJA’s pretrial advice 

“shall include” the SJA’s conclusions with respect to 

“whether each specification alleges an offense under the 

code,” “whether the allegation of each offense is warranted 

41 In a footnote to his brief, Appellant argues that we should 

review COL Risch’s “pretrial advice under a quasi-judicial 

standard.” Appellant’s Brief at 158 n.40. According to Appellant, 

when “acting in a quasi-judicial capacity, persons are held to a 

similar standard of impartiality as a military judge.” Id.

Appellant argues the test is objective: “whether a reasonable 

person, knowing all the relevant facts, would harbor doubts 

about the judge’s impartiality.” Id. (citing Nichols v. Alley, 71 

F.3d 347, 350-51 (10th Cir. 1995)). For its part, the Government 

agrees with the lower court that “no case law ‘supports the 

assertion that the SJA, in providing pretrial advice, must be held 

to the same standard of impartiality as a military judge.’ ” 

Appellee’s Brief at 136 n.32 (citation omitted). We too find no 

support for Appellant’s position. Furthermore, we note that even 

adopting the “objective standard” urged by Appellant there are 

no grounds to question COL Risch’s pretrial advice. As discussed 

infra, we are “confident that an objective, disinterested observer 

would decide that the” capital referral “was a foregone 

conclusion.” United States v. Bergdahl, 80 M.J. 230, 244 

(C.A.A.F. 2020) (plurality opinion) (discussing unlawful 

command influence).
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79

by the evidence indicated in the report of investigation,” 

and “whether a court-martial would have jurisdiction over 

the accused and the offense,” as well as the SJA’s “[r]ecommendation of the action to be taken by the convening authority.” R.C.M. 406(b)(1)-(4) (2008 ed.); see also Article 

34(a)(1)-(3), UCMJ. This Court’s predecessor noted that 

“the review by a legal advisor is a valuable pretrial protection to an accused. Generally speaking, it assures full and 

fair consideration of all factors.” United States v. Smith, 

13 C.M.A. 553, 557, 33 C.M.R. 85, 89 (1963).

When challenging an SJA’s authority to provide pretrial 

advice, an appellant “has the initial burden of making a 

prima facie case” that the SJA was disqualified. United 

States v. Taylor, 60 M.J. 190, 194 (C.A.A.F. 2004). Article 

6(c), UCMJ, provides grounds for disqualification in a case

when the SJA “acted” as a member, military judge, trial 

counsel, defense counsel, or investigating officer in “the 

same case.” 10 U.S.C. § 806(c) (2006); see also R.C.M. 

406(b) Discussion (2008 ed.); R.C.M. 1106(b) (2008 ed.). 

Our precedent also provides for the disqualification of an 

SJA:

when (1) he or she displays a personal interest or 

feeling in the outcome of a particular case; (2) 

there is a legitimate factual controversy with defense counsel; or, (3) he or she fails to be objective, 

such that it renders the proceedings unfair or creates the appearance of unfairness. 

Chandler, 80 M.J. at 429 (citations omitted) (internal 

quotation marks omitted); see also United States v. Dresen, 

47 M.J. 122, 124 (C.A.A.F. 1997) (recognizing the SJA must 

“be, and appear to be, objective”); United States v. Willis, 

22 C.M.A. 112, 114, 46 C.M.R. 112, 114 (1973) (cautioning 

that an SJA “may become so deeply and personally 

involved as to move from the role of adviser to the role of 

participant”). “In determining whether an SJA is 

disqualified, this Court will consider ‘the action taken, the

position of the person that would normally take that action, 

and the capacity in which the action is claimed to have been 

taken.’ ” Chandler, 80 M.J. at 429 (quoting United States v.
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80

Stefan, 69 M.J. 256, 258 (C.A.A.F. 2010)). We note, 

however, that even if this Court concludes that an SJA was 

disqualified from providing pretrial advice, that alone is 

not sufficient for relief. There must be prejudice. See

Stefan, 69 M.J. at 258 (“We have not held that 

recommendations prepared by a disqualified officer [are]

void. Rather, we test for prejudice . . . .” (first alteration in 

original) (citation omitted) (internal quotation marks 

omitted)).

IV. Discussion

For the reasons set forth below, we conclude Appellant 

has not met his initial burden of making a prima facie case 

that COL Risch was disqualified from serving as the SJA 

in this case. Moreover, even if we were to conclude that 

COL Risch was disqualified, there is no basis to conclude 

that Appellant was prejudiced. Accordingly, we decline to 

grant Appellant relief on this issue.

A. SJA Disqualification

Appellant claims that COL Risch was disqualified because he “was ‘so closely connected’ ” to this case that he 

had a personal interest in its outcome. Appellant specifically cites the following points: “the shootings caused [COL 

Risch] to reasonably fear for his family”; COL Risch’s close 

colleague “was directly involved in the attack”; COL Risch

“personally investigated the scene” on the night of the offense; and COL Risch “was part of the Fort Hood community that, itself, was a victim of the attack.” Appellant’s 

Brief at 156-58. We are unpersuaded. 

First, Appellant claims that a reasonable person would 

impute to COL Risch a personal interest in the outcome of 

this case because as soon as COL Risch was notified of the 

attack, “he immediately called his wife to ensure the safety 

of her and his family who resided on post.” Id. at 156. However, as it turned out, no member of COL Risch’s family 

was harmed in the attack or was ever in direct danger. And 

the mere fact that COL Risch checked on his family’s wellbeing during the unfolding of a dynamic situation does not, 

standing alone, call into question COL Risch’s ability to be 
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81

impartial when providing legal advice in this case. Concern 

for the safety of one’s family may be relevant in some circumstances, but it is not itself disqualifying. See, e.g., Hasan, 71 M.J. at 419 (identifying the military judge’s and his 

family’s presence “at Fort Hood on the day of the shootings” 

as “not disqualifying” in and of itself).

Second, Appellant claims that COL Risch had a personal interest in the outcome of this case because “he 

feared for the safety of CPT [NF], a member of his OSJA 

family, who was directly involved in the attack.” Appellant’s Brief at 156. Indeed, Appellant claims this was “the 

most disqualifying fact.” Reply Brief at 62. Appellant analogizes the facts of his case to that of United States v. Nix, 

40 M.J. 6 (C.M.A. 1994). In Nix, our predecessor court 

found a special court-martial convening authority was disqualified from forwarding charges when, shortly before 

trial, he married a woman with whom Nix was suspected 

of having a romantic relationship. Id. at 7-8. But the facts 

of Nix are distinguishable. To begin with, Nix dealt with a 

convening authority, not an SJA as is the case here, and 

their roles and their authority in the pretrial process are 

dissimilar. Further, the spousal relationship at issue in Nix

is entirely different than the relationship between a supervisor and his subordinate. Moreover, CPT NF was uninjured during the attack,42 and he was not a named victim. 

And finally, COL Risch’s natural concern for the safety of 

a subordinate is hardly “antithetical to the integrity of the 

military justice system as to disqualify him from participation.” United States v. Engle, 1 M.J. 387, 389 (C.M.A. 1976). 

As appropriately noted by the Government, “it is wholly 

42 In his reply brief, Appellant suggests that CPT NF was a 

target of the attack. Reply Brief at 62 (claiming that rounds were 

fired in CPT NF’s direction and that, according to Appellant’s 

own statements, “every soldier was a target”). We acknowledge 

that CPT NF could have been injured. However, CPT NF stated 

that while “[r]ounds were fired in my direction,” “whether 

[Appellant] was aiming at me I do not know.” Importantly, in his 

own words, CPT NF stated he “was uninjured” during the 

attack.
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82

unremarkable that COL Risch expressed concern for the 

well-being of his subordinates.” Appellee’s Brief at 135.

Third, Appellant claims that COL Risch was disqualified because he “personally investigated the scene [of the 

attack] that very night.” Appellant’s Brief at 157. At the 

outset, it is important to note that despite the wording used 

in Appellant’s brief, there is nothing in the record that indicates that COL Risch served as an investigator of this 

crime. And the fact COL Risch visited the crime scene does 

not, by itself, give reason to doubt his objectivity under 

Chandler. Indeed, it is notable—as the ACCA pointed 

out—that COL Risch was required to expose himself to disturbing images and witness accounts in order to effectively 

perform “his role as SJA under R.C.M. 406 . . . pursuant to 

Article 32, UCMJ.” Hasan, 80 M.J. at 706. 

Appellant further argues that COL Risch’s comments to 

CPT NF after visiting the scene of the attack “evidenced an 

emotional disturbance” that “underscores the point” about 

COL Risch’s disqualification. Appellant’s Brief at 157. We 

are not convinced. COL Risch’s purported comments—that 

visiting the SRP center building “was a difficult experience 

that would make it hard to sleep at night”—do not suggest 

a level of personal interest that is disqualifying. Setting 

aside possible concerns about the accuracy of these reported comments by COL Risch,43 we find, like the lower 

court, that they were mere “expression[s] of empathy.” Hasan, 80 M.J. at 706. And without more, there is nothing 

necessarily incompatible with expressing empathy at the 

43 In May 2018, CPT NF had a conversation with a member 

of Appellant’s appellate defense team in which CPT NF described what COL Risch purportedly said after visiting the SRP

center building. That same day, CPT NF wrote a statement memorializing his conversation with the member of Appellant’s defense team. However, we note that this statement was written 

nearly nine years after the attack. Perhaps acknowledging this 

significant lapse in time, CPT NF qualified that he was not quoting COL Risch but rather was stating that COL Risch had used 

“words to that effect.” 
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83

time of an incident and later being objective when performing legal duties. 

In arguing this ground for disqualification, Appellant 

likens COL Risch’s actions to the facts in Brookins v. Cullins, 23 C.M.A. 216, 49 C.M.R. 5 (1974), a case where the 

convening authority witnessed the offense at issue and our 

predecessor court found, for a number of reasons, that he 

was disqualified. But we do not find Brookins on point. To 

begin with, we do not accept Appellant’s premise that visiting a crime scene is akin to witnessing an offense. Next, 

even if the two were comparable, the Brookins Court specifically stated that it “need not decide whether merely witnessing the commission of an offense is sufficient to disqualify the convening authority.” Id. at 218, 49 C.M.R. at 

7. And finally, Appellant does not make it clear why Brookins, a case analyzing grounds for disqualifying a convening 

authority, should be extended here to apply to an SJA. Cf.

United States v. Brocato, 4 F.4th 296, 302-03 (5th Cir. 

2021) (stressing that in the context of recusal for federal 

civilian judges, “each recusal case ‘. . . must be judged on 

its unique facts and circumstances more than by comparison to situations considered in prior jurisprudence’ ” (quoting United States v. Jordan, 49 F.3d 152, 157 (5th Cir. 

1995))). 

For his final argument, Appellant claims that COL 

Risch had a personal interest in the outcome of the case 

because he “was part of the Fort Hood community that, itself, was a victim of the attack.” Appellant’s Brief at 158. 

We acknowledge the personal impact the Fort Hood shootings may have had on COL Risch. However, the record before us is insufficient to establish that COL Risch actually 

“display[ed] ‘a personal interest or feeling in the outcome 

of [Appellant’s] case.’ ” Chandler, 80 M.J. at 429 (quoting

United States v. Sorrell, 47 M.J. 432, 433 (C.A.A.F. 1998)).

Accordingly, Appellant cannot succeed on this argument. 

Appellant argues that when considering the four points 

that he raises, we should take a “totality of the circumstances” approach. Appellant’s Brief at 158. We agree. But 

even considering all four alleged circumstances together, 
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84

we do not find a sufficient basis to conclude that a reasonable person would impute to COL Risch a personal interest 

in the outcome of this case. Accordingly, we find COL Risch 

was not disqualified.

B. Prejudice

We deem it prudent to now turn our attention to the 

issue of whether Appellant would merit relief even if COL 

Risch was disqualified from serving as the SJA in this case. 

In his initial brief, Appellant focuses the prejudice discussion on COL Risch’s Article 34 pretrial advice and his advice regarding member selection. In doing so, Appellant argues that this Court should depart from its disqualification 

case law and presume prejudice or, in the alternative, assess this alleged error for harmlessness beyond a reasonable doubt. Appellant specifically urges this Court to extend 

the rule from Nix, which seemed to hold that courts “must 

assume the [special court-martial convening authority’s] 

recommendation influenced the [general court-martial]

convening authority’s decision to refer the charges to a general court-martial.” 40 M.J. at 8. Alternatively, Appellant 

argues that “the prejudice standard should be harmless beyond a reasonable doubt because the participation of a disqualified officer in the processing of appellant’s case is akin 

to apparent unlawful command influence.” Appellant’s 

Brief at 160.

We decline Appellant’s invitation to depart from our 

precedent in regard to these two points. Simply stated, Appellant’s arguments are squarely foreclosed by Stefan, 

69 M.J. at 258, which rejected a presumption of prejudice 

for disqualified SJAs and did not apply a harmless beyond 

a reasonable standard. As articulated by the Stefan Court, 

“We have not held that recommendations prepared by a 

disqualified officer [are] void. Rather, we test for prejudice

under Article 59(a) . . ., which requires material prejudice 

to the substantial rights of the accused.” Id. (first alteration 

in original) (citation omitted) (internal quotation marks 

omitted); see also id. (rejecting the appellant’s request to 

presume prejudice because even though the SJA was disqualified under Article 6(c), “these kinds of 
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85

[disqualification] errors are amenable to being tested for 

prejudice”); Taylor, 60 M.J. at 194-95 (assessing the SJA’s 

error in failing to recuse for prejudice); Sorrell, 47 M.J. at 

434 (same).

We further note that Appellant’s analogy to the unlawful command influence context is misplaced. The SJA’s role 

is to provide legal advice, and it would be the rarest of circumstances where an SJA would be senior in rank to a convening authority and could thus unlawfully influence the 

convening authority’s decision-making. Indeed, COL Risch 

demonstrably was not senior in rank to the convening authority in the instant case. Moreover, the lack of any recommendations by COL Risch that were inexplicably adverse to Appellant undermines any appearance of 

partiality claim that has previously resulted in relief in the 

command influence context. See United States v. Horne, 82 

M.J. 283, 289 (C.A.A.F. 2022) (“[T]he lack of personal prejudice is still a ‘significant factor in determining whether 

the unlawful command influence created an intolerable 

strain on the public’s perception of the military justice system.’ ” (quoting United States v. Proctor, 81 M.J. 250, 255 

(C.A.A.F. 2021))). Accordingly, contrary to Appellant’s assertions, we must engage in a typical prejudice analysis 

when assessing whether a disqualified SJA’s pretrial advice and advice on member selection merits relief. 

Turning to the pretrial advice in the course of our prejudice analysis, we note that Appellant does not take issue 

with COL Risch’s conclusions that the specifications alleged offenses under the UCMJ, that the facts supported 

those specifications, that a court-martial would have jurisdiction over Appellant and his offenses, or that an aggravating factor was present. Nor does Appellant identify any 

other aspect of COL Risch’s Article 34 pretrial advice as 

being problematic or evincing bias that improperly influenced his recommendations. In fact, a review of the record 

evidence makes “it impossible to believe that anyone else 

would have recommended action other than was recommended by” COL Risch. Smith, 13 C.M.A. at 559, 33 C.M.R. 

at 91; see also Stefan, 69 M.J. at 259 (finding no prejudice 
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86

in part because given the circumstances of the case, “including the host of offenses committed by [a]ppellant and 

the seriousness of some of his crimes, there is nothing that 

would suggest that another SJA would have made a different recommendation” (footnote omitted)); cf. United States 

v. Tittel, 53 M.J. 313, 314 (C.A.A.F. 2000) (agreeing with 

the lower court that “[i]n light of the serious nature of the 

charges facing the appellant” it was “unlikely that any 

competent authority would not have referred this case to a 

special court-martial” (citation omitted) (internal quotation marks omitted)); Tovarchavez, 78 M.J. at 462 n.5 (“In 

the context of nonconstitutional errors, courts consider 

whether there is a ‘reasonable probability that, but for the 

error, the outcome of the proceedings would have been different.’ ” (quoting Molina-Martinez v. United States, 578 

U.S. 189, 194 (2016))). In other words, Appellant has not 

demonstrated any prejudice resulting from an act or omission of COL Risch in his Article 34 pretrial advice. 

Similarly, Appellant has not adequately demonstrated 

prejudice arising from COL Risch’s performance of any 

other pretrial functions. See United States v. Moorefield, 66 

M.J. 170, 171 (C.A.A.F. 2008) (per curiam) (noting the appellant had “not shown that anything [the SJA] did or did 

not do in the course of the second court-martial prejudiced 

him”). For example, Appellant fails to articulate with any 

specificity how COL Risch’s purported “personal interest” 

in this case, or his purported lack of objectivity, influenced 

his advice. Therefore, under these facts and circumstances, 

we are unable to discern any prejudice that would merit 

relief even if we concluded that COL Risch was disqualified 

from serving as the SJA.

As to the selection of members, Appellant has not described COL Risch’s role in, nor pointed to anything in the 

record regarding, the member selection process. Our own 

review of COL Risch’s memoranda reveals that his member 

selection advice was “boilerplate” in nature, simply laying 

out the law governing panel selection and advising the convening authority as to the number of members to be selected as well as excusal conditions and various other 
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87

administrative details. Consequently, Appellant has failed 

to show how these memoranda, or any other actions COL 

Risch may have taken in the panel selection process, were

prejudicial.

To conclude, we hold that Appellant has not demonstrated COL Risch was disqualified from serving as the 

SJA in Appellant’s case. In addition, we find that even if 

COL Risch was disqualified, Appellant did not suffer prejudice. Therefore, Appellant is not entitled to relief on this 

issue. 

Issue X: Whether the Judges of the Army Court 

of Criminal Appeals Should Have Been Recused 

Because They Were Supervised by then-Major 

General Stuart Risch While His Error as the Staff 

Judge Advocate Was Pending

Litigation Before Them

Appellant argues that the judges of the ACCA abused 

their discretion when they failed to recuse themselves from 

this case. In support of his argument, Appellant cites the 

fact that the ACCA judges were supervised by MG Risch at 

the same time they had pending before them an issue involving then-COL Risch’s failure to recuse himself as the

staff judge advocate. Appellant asserts that a reasonable 

person would question the impartiality of the ACCA judges 

under these circumstances. However, for the reasons provided below, we conclude that the ACCA judges did not 

abuse their discretion when they declined to recuse themselves. Moreover, we conclude that even if the ACCA judges 

were disqualified from hearing Appellant’s case, setting 

aside the lower court’s opinion as requested by Appellant 

is not warranted. See Liljeberg v. Health Servs. Acquisition 

Corp., 486 U.S. 847 (1988).

I. Background

As discussed supra, at the time of Appellant’s attack in 

2009, COL Risch served as the staff judge advocate for III 

Corps and Fort Hood. Following the shooting, COL Risch 

provided pretrial advice to the convening authority, 
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88

including Article 34 advice regarding the referral of

charges. See Hasan, 80 M.J. at 704.

Subsequently, MG Risch became the Deputy Judge 

Advocate General of the Army after Appellant’s case was

docketed at the ACCA. Several ACCA judges recused 

themselves from Appellant’s case while it was pending 

review. Id. at 690 n.1. In 2018, three ACCA judges were 

assigned to the case—Chief Judge Berger, Judge

Schasberger, and Judge Hagler. MG Risch served as the 

rater for Chief Judge Berger, and as the rater and senior 

rater for the other ACCA judges. However, three other 

ACCA judges—Senior Judge Brookhart, Chief Judge 

(IMA44) Krimbill, and Judge Rodriguez—were assigned to 

the court in the summer of 2019, and it is these three 

judges who were responsible for the court’s published 

opinion in this case. Hasan, 80 M.J. at 690. MG Risch 

initially served as their rater as well.

During the pendency of the ACCA appeal, Appellant 

filed three motions to disqualify the various ACCA judges 

who presided over Appellant’s appeal because of MG 

Risch’s rating relationship with them. The first motion was 

filed on July 11, 2018, and was denied by the ACCA on August 17, 2018. Appellant later submitted a motion for reconsideration, which the ACCA denied on December 6, 

2018.

In the summer of 2018, Appellant submitted a motion 

to the ACCA requesting “funding for expert assistance to 

conduct a nationwide survey.” In relevant part, Appellant 

wanted to “assess public opinion on the question of perceived partiality of [COL] Risch in providing pre-trial advice and perceived partiality of [the ACCA] in assessing 

MG Risch’s conduct.” The ACCA denied this motion. 

44 An IMA is an individual mobilization augmentee. This is 

a reservist who “support[s] an operational requirement for” the 

Army. United States v. Shea, 76 M.J. 277, 279 n.2 (C.A.A.F. 

2017); see also Dep’t of the Army, Reg. 140-145, Individual Mobilization Augmentation Program para. 1-6 (Mar. 21, 2022).
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89

Also in the summer of 2018, Appellant filed a motion 

with the ACCA seeking a “protective order directing [MG] 

Risch” and others “to preserve and maintain any and all 

correspondence related to United States v. Hasan and any 

and all correspondence about the attack itself.” Appellant 

noted that this motion was related to the “allegation of error regarding MG Risch’s potential bias . . . that may have 

affected the pre-trial advice,” and reasoned that the “correspondence may reveal further evidence of alleged bias.” 

The ACCA denied this motion.45

Following the ACCA litigation on the first motion to 

recuse, Appellant filed a petition for extraordinary relief in 

the nature of a writ of mandamus with this Court seeking 

the recusal of the ACCA judges. Hasan v. United States 

Army Court of Criminal Appeals, 78 M.J. 189, 189-90 

(C.A.A.F. 2018) (filing). In a summary disposition, this 

Court denied Appellant’s petition because:

Petitioner has failed to demonstrate that he cannot obtain relief through alternative means. He 

may still make an administrative request to remedy the alleged source of bias, and of course, he is 

entitled to raise this issue in the ordinary course 

of appellate review. Further, Petitioner has failed 

to demonstrate a clear and indisputable right to 

the writ as the harm he asserts is entirely speculative at this stage of the proceedings.

Hasan v. United States Army Court of Criminal Appeals, 

79 M.J. 29, 30 (C.A.A.F. 2019) (summary disposition).

Appellant filed his third recusal motion with the ACCA

on August 14, 2020. This motion sought the recusal of those

judges of the court who would hear oral arguments and issue the written opinion in this case “on the grounds that

MG Risch is the senior rater for [those] judges.” The ACCA

45 In his July 11, 2018, motion seeking the recusal of the 

ACCA judges, Appellant also averred that a motion previously 

submitted to the ACCA for investigative assistance was predicated, in part, on Appellant’s desire to investigate MG Risch’s 

“other than official interest” in the case. The ACCA denied this 

motion as well.
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90

denied that motion on September 9, 2020. The Army Court

stated that it would “provide the basis for this ruling in 

conjunction with [its] decision on [A]ppellant’s assigned errors,” but it never did so.

On July 29, 2020, Appellant submitted a request to the

Judge Advocate General of the Army, who at that time was 

LTG Charles Pede, seeking a modification of the rating 

scheme for those ACCA judges who were presiding over his 

case. In a response dated September 16, 2020, LTG Pede

stated that although he determined there was “no conflict 

of interest” regarding MG Risch’s rating relationship with 

the ACCA judges, he decided that “out of an abundance of 

caution, and to moot any concerns” he—LTG Pede—would 

serve “as both the rater and senior rater” for any ACCA 

judge who reviewed the merits of Appellant’s case.

The ACCA heard oral argument in Appellant’s case on 

October 15, 2020, and issued its opinion affirming the findings and sentence on December 11, 2020.

Before this Court, Appellant argues that “a reasonable 

person would . . . question the impartiality of the Army 

Court when litigation was pending before them regarding 

their supervisor.” Appellant’s Brief at 163. Appellant further argues that MG Risch’s eventual removal as the rater 

of the ACCA judges failed to resolve the conflict because 

the Army Court “operated under the conflict for more than 

three years in which it issued numerous rulings that directly and substantively affected the resolution of this 

case,” including rulings involving MG Risch. Id. at 163-64.

Appellant maintains that LTG Pede’s removal of MG Risch 

as the ACCA judges’ rater did not “retroactively resolve” 

the conflict and that “the Army Court’s opinion did not address the conflict at all” despite that court’s assurances to 

“the parties that it would disclose the reason(s) in its final 

opinion for not disqualifying themselves.” Id. at 164. Ultimately, Appellant asserts that after applying the three factors from Liljeberg, setting aside the lower court’s opinion

is required as a result of the ACCA recusal error.
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In response, the Government argues that when LTG 

Pede removed MG Risch from the ACCA judges’ rating 

chain—as requested by Appellant—the recusal issue became moot. Moreover, the Government contends that there 

was no need for the ACCA judges to recuse themselves because “[a] reasonable person with knowledge of all the facts 

regarding [MG] Risch’s involvement in this case would 

have no doubts about the impartiality of” the ACCA judges. 

Appellee’s Brief at 139 (footnote omitted). The Government 

points to two factors to support this point: (1) MG Risch 

was no longer in the rating chain of the ACCA judges by 

the time they heard oral argument or issued their opinion; 

and (2) even before this change in the rating chain, the sole 

issue that came before the ACCA involving COL Risch did 

not challenge his legal advice or his ethical conduct. Finally, the Government asserts that, even if recusal was 

warranted, the Liljeberg factors favor upholding the 

ACCA’s decision.

II. Standard of Review

An “appellate judge’s decision on recusal is reviewed for 

an abuse of discretion.” United States v. Jones, 55 M.J. 317, 

320 (C.A.A.F. 2001); United States v. Hamilton, 41 M.J. 32, 

39 (C.M.A. 1994). “A[n] [appellate] judge’s ruling constitutes an abuse of discretion if it is ‘arbitrary, fanciful, 

clearly unreasonable or clearly erroneous,’ not if this Court 

merely would reach a different conclusion.” United States 

v. Sullivan, 74 M.J. 448, 453 (C.A.A.F. 2015) (quoting 

United States v. Brown, 72 M.J. 359, 362 (C.A.A.F. 2013)).

III. Applicable Law

Whether an appellate military judge must recuse himself or herself from sitting on a given case is assessed according to the standards laid out in R.C.M. 902. United 

States v. Mitchell, 39 M.J. 131, 142 (C.M.A. 1994). In relevant part, that rule provides that “a military judge shall 

disqualify himself or herself in any proceeding in which 

that military judge’s impartiality might reasonably be 

questioned.” R.C.M. 902(a) (2019 ed.); see also R.C.M. 

902(c)(1) (2019 ed.) (“ ‘Proceeding’ includes . . . appellate 
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review . . . .”). “The standard for deciding the Manual judicial-disqualification question is . . . . whether a reasonable 

person who knew all the facts might question these appellate military judges’ impartiality.” Mitchell, 39 M.J. at 143. 

This requirement for recusal “enhances public confidence 

in the judicial system by ensuring that judges avoid the appearance of partiality.” Jones, 55 M.J. at 319.

“The tension created by the placement of the military 

judiciary within the officer personnel structure requires 

military judges to be sensitive to particular circumstances 

that may require consideration of recusal.” United States v. 

Norfleet, 53 M.J. 262, 268 (C.A.A.F. 2000). “Each . . . case 

must be assessed on its own merits.” Id. at 270. The mere 

“fact that military judges may issue rulings adverse to the 

interests of superior officers, however, does not in itself 

preclude those judges from exercising independence in 

their judicial rulings.” Id. at 268. Also, standing alone, 

“preparation of fitness reports for appellate military judges 

by senior judge advocates does not create a circumstance in 

which the impartiality of a judge might reasonably be questioned under RCM 902(a).” Id. at 269 (citing Mitchell, 

39 M.J. at 131). 

However, there may be “facts and circumstances [that] 

call for” recusal. Id. at 270. After all, “judicial officials may 

have relationships which cast suspicion upon their fairness 

or impartiality.” Id. Most relevant to the present case is 

this Court’s statement that questions may arise about the 

impartiality of appellate military judges if they “review[] a 

case where the Judge Advocate General or the Assistant 

Judge Advocate General, prior to their appointment, acted 

as a military trial judge, trial counsel, defense counsel, or 

staff judge advocate in that case.” Mitchell, 39 M.J. at 145 

n.8 (emphasis added). “There may be cases in which the 

ruling by a military judge on an issue would have such a 

significant and lasting adverse direct impact on the professional reputation of a superior for competence and integrity 

that recusal should be considered.” Norfleet, 53 M.J. at 271.

When appellate military judges err in failing to recuse 

themselves in a case, we test for prejudice using the 
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Liljeberg factors. See United States v. Witt, 75 M.J. 380, 

384 (C.A.A.F. 2016); United States v. Roach, 69 M.J. 17, 20-

21 (C.A.A.F. 2010).

 In Liljeberg, the Supreme Court considered 

three factors to determine whether a remedy is 

warranted for a judge’s failure to recuse himself 

[or herself]: (1) the “risk of injustice to parties in 

the case”; (2) the “risk that the denial of relief will 

result in injustice in other cases”; and (3) the “risk 

of undermining public confidence in the judicial 

process.”

United States v. Rudometkin, 82 M.J. 396, 398 (C.A.A.F. 

2022) (quoting Liljeberg, 486 U.S. at 864).

IV. Discussion

We conclude that the ACCA judges did not abuse their 

discretion by declining to recuse themselves from this case.

But even if they did abuse their discretion, setting aside 

the lower court’s opinion is not warranted under 

Liljeberg.46

A. Recusal

We acknowledge that Appellant’s basic premise—a reasonable person would question the ACCA judges’ impartiality when they decided issues pertaining to errors allegedly committed by their then-superior officer and rater—is 

facially appealing. However, in resolving recusal issues of 

this nature, the key is whether “a reasonable person knowing all the facts and circumstances . . . could question [the 

judges’] impartiality or independence in reviewing appellant’s case.” Mitchell, 39 M.J. at 144. And here, the 

46 We disagree with the Government’s contention that because MG Risch was removed as the rater of the ACCA judges, 

the recusal issue is moot. The ACCA decided motions on issues 

pertaining to MG Risch before he was removed as the judges’ 

rater—thereby calling the validity of those decisions into question—and “an issue is moot [only] if resolving it ‘would not result 

in a material alteration of the situation for the accused or for the 

Government.’ ” United States v. Napoleon, 46 M.J. 279, 281 

(C.A.A.F. 1997) (quoting United States v. Clay, 10 M.J. 269 

(C.M.A. 1981)).
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attendant facts and circumstances demonstrate that the 

ACCA judges who handled this case did not abuse their discretion by declining to recuse themselves. We specifically 

highlight two points in our analysis.

First, in terms of the rulings made by the ACCA judges 

during the time when MG Risch still served as their 

rater,47 a reasonable person would know certain key facts. 

To begin with, it is true that the Army Court denied a defense request for “expert funding to conduct a survey . . . 

relating to . . . whether members of the public would draw 

negative connotations from then-[COL] Risch[’s] actions as 

the SJA and for his relationship with the court.” Appellant’s Brief at 37. However, this defense request was, to say 

the least, novel. Moreover, it was ancillary not only to the 

question of the guilt or innocence of the accused but also to 

the question of whether this case was properly handled 

procedurally. Therefore, a reasonable person would conclude that the decision by the ACCA judges to deny this 

request was inevitable and not a result of them trying to 

curry favor with MG Risch. 

Similarly, the defense request for “a protective order directing . . . [MG] Risch” and others “to preserve and maintain any and all correspondence related to United States v. 

Hasan and any and all correspondence about the attack itself” was unusual if not unprecedented in military justice. 

Indeed, the only authority cited by Appellant in support of 

this motion was United States v. Campbell which is not on 

point because it dealt with a “post-trial dispute over discovery relevant to an appeal.” 57 M.J. 134, 138 (C.A.A.F. 

2002). Therefore, once again a reasonable person would understand that the ACCA judges’ handling of this matter 

was not predicated on their rating relationship with MG 

Risch.

Second, the sole assignment of error at the ACCA involving MG Risch did not challenge the substance of his 

47 As noted earlier, MG Risch had been removed from the 

ACCA judges’ rating chain by the time the Army Court held oral 

argument and issued its opinion in this case.
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legal advice. Rather, the alleged error was simply that MG 

Risch should have been disqualified from providing Article 

34, UCMJ, pretrial advice to the convening authority. A 

reasonable person would conclude that these circumstances did not rise to the level where the ACCA judges 

would have been concerned that their decision on this issue 

“would have such a significant and lasting adverse direct 

impact on the professional reputation of a superior for competence and integrity” that their disqualification under 

R.C.M. 902 was mandated. Norfleet, 53 M.J. at 271.

Accordingly, the ACCA judges did not abuse their discretion when they declined to recuse themselves.

B. Liljeberg Analysis

Even if we were to hold that the ACCA judges did abuse 

their discretion when they declined to recuse themselves 

from this case, the three Liljeberg factors show that vacatur of the lower court’s opinion is not warranted. See 

United States v. Martinez, 70 M.J. 154, 158 (C.A.A.F. 2011) 

(“not every judicial disqualification requires reversal” and 

the Liljeberg factors “determine whether [an appellate] 

military judge’s conduct warrants” a remedy).

We turn to the factors in order. First, the risk of injustice to Appellant was low. As the Government notes, “When 

the judges heard argument in this case and issued their 

opinion, MG Risch was no longer their rater.” Appellee’s 

Brief at 148. As for Appellant’s contention that the ACCA 

judges “operated under [a] conflict for more than three 

years in which it issued numerous rulings that directly and 

substantively affected the resolution of this case,” Appellant’s Brief at 164, most of these rulings were unrelated to 

MG Risch. And as discussed above, it is unlikely that the 

motions related to MG Risch would have been favorably 

ruled upon by any appellate military judge.

Second, in terms of whether denying relief in this case 

will result in injustice in future cases, we concur with this 

Court’s observation in United States v. Butcher: “It is not 

necessary to [vacate the lower court’s opinion] in order to 

ensure that [appellate] military judges exercise the 
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appropriate degree of discretion in the future.” 56 M.J. 87, 

93 (C.A.A.F. 2001).

Third, the risk of undermining public confidence in the 

military judicial process by denying relief is low. As the 

Government notes, in light of the tenuous nature of the 

substantive arguments by Appellant, the remedy of vacatur would simply serve to “undermine the public’s confidence in the certainty of military appeals courts’ judgments.” Appellee’s Brief at 149-50. 

Therefore, upon assessing the Liljeberg factors, even if 

the ACCA judges abused their discretion by declining to 

recuse themselves, the proposed remedy requested by Appellant of setting aside the lower court’s opinion is not warranted. Accordingly, Appellant is entitled to no relief on 

this issue.

Issue XI: Whether the Convening Authority Was 

Disqualified to Perform the Post-Trial Review of 

Appellant’s Case After Awarding Purple Heart 

Medals to the Victims of Appellant’s Offenses48

Appellant asserts that he was denied his “substantial 

right to an individualized, legally appropriate, and careful 

post-trial review of his convictions and sentence” by the 

convening authority. Appellant’s Brief at 168. Specifically, 

he argues that LTG Sean MacFarland was disqualified 

from performing the post-trial review of this case because 

LTG MacFarland awarded Purple Heart medals to the victims of Appellant’s offenses and gave remarks at the ceremony, thereby demonstrating that he “could not give 

[A]ppellant’s case a fair review or protect the integrity of 

the process.” Id. at 169. Accordingly, Appellant asserts that 

he was “denied his substantial right to an impartial review 

of his case, and [that] this Court should remand [A]ppellant’s case for a new convening authority action.” Id. at 170. 

48 As discussed infra, Appellant did not raise this issue before the lower court.
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Contrary to Appellant’s contentions, we hold that it was 

not plain error for LTG MacFarland to conduct the posttrial review of Appellant’s case.

I. Background

Prior to Appellant’s trial, a bill was introduced in Congress that would have authorized the Army to award Purple Heart medals to Appellant’s victims. H.R. Rep. No. 112-

479, pt. 1, at 164 (2012).49 The Army opposed this legislation because, among other reasons, it believed the bill 

“would undermine the prosecution of” Appellant “by materially and directly compromising [Appellant’s] ability to receive a fair trial.” However, in December 2014, after Appellant’s conviction and sentencing, Congress passed 

subsequent legislation that authorized the military to 

award the Purple Heart medal to active duty service members “who [were] killed or wounded in an attack by a foreign terrorist organization” under such circumstances as 

existed in this case. 10 U.S.C. § 1129a(a)-(b) (2018); see also

Dep’t of the Army, Reg. 600-8-22, Personnel-General, Military Awards para. 2-8(b)(10) (Mar. 5, 2019). After the passage of this legislation, “the Secretary of the Army determined that servicemembers injured or killed in the Fort 

Hood attacks were eligible for the Purple Heart if they met 

the other regulatory criteria.” Berry v. Esper, 322 F. Supp. 

3d 88, 89 (D.D.C. 2018).

Appellant states that on April 10, 2015, LTG MacFarland awarded Purple Heart medals to the victims of the 

Fort Hood attack and made public remarks “regarding the 

victims, identifying their deaths and injuries as a sacrifice, 

construing their actions as courageous, brave, selfless, and 

valorous, and conjecturing that [A]ppellant would have inflicted greater calamity given the opportunity.” Appellant’s 

Brief at 169.50

49 The bill also would have awarded the Purple Heart medal 

to the victims of an unrelated June 2009 attack on a recruiting 

station in Little Rock, Arkansas. H.R. Rep. No. 112-479, at 164.

50 Appellant does not provide any joint appendix or record 

citations documenting the ceremony. For its part, the 
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98

Almost two years later, in March 2017, LTG MacFarland, in his capacity as the convening authority, approved 

the findings and the sentence in Appellant’s case. Prior to 

that action, Appellant had submitted an approximately 

450-page handwritten document addressing such topics as 

his understanding of Islam, his view of the world and the 

meaning of life, and “mans [sic] duty to his creator.” In doing so, he explicitly informed the convening authority: 

“[T]his submission is not a plea for mercy.”

Appellant submitted his initial appellate brief to the 

ACCA in November 2019, more than two and a half years 

after the award ceremony at issue. However, he did not 

raise this issue before the Army court.

II. Standard of Review 

The standard of review for this issue depends on 

whether the issue was waived, forfeited, or preserved. The 

Government argues that Appellant waived the issue. If the 

Government is correct, then we cannot review the issue at 

all. United States v. Rich, 79 M.J. 472, 476 (C.A.A.F. 2020). 

However, before deciding whether a waiver occurred, we 

must address two important preliminary questions.

The first question is whether the Government is asserting that Appellant intentionally waived the issue or instead 

is asserting that the issue was waived by operation of law. 

An intentional waiver occurs when a party intentionally relinquishes or abandons a known right. United States v. 

Day, 83 M.J. 53, 56 (C.A.A.F. 2022) (citing United States v. 

Jones, 78 M.J. 37, 44 (C.A.A.F. 2018)). In contrast, a 

“waiver by operation of law happens when a procedural 

rule or precedent provides that an objection is automatically waived upon the occurrence of a certain event and 

that event has occurred.” Id. (citing United States v. Swift, 

76 M.J. 210, 217-18 (C.A.A.F. 2017)). The Government’s 

brief does not expressly identify the type of waiver that it 

contends occurred in this case. We nonetheless conclude 

Government merely refers to an Army press release that is not 

part of the record.
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that the Government is asserting that Appellant intentionally waived the issue. We reach this conclusion because the 

Government principally relies on United States v. Gudmundson, 57 M.J. 493, 495 (C.A.A.F. 2002), a case in which 

an appellant intentionally waived a disqualification issue, 

and because the Government does not cite any legal rule 

that provides that a failure to raise an issue constitutes 

waiver. Accordingly, we consider only whether Appellant 

expressly waived the issue and do not consider whether the 

waiver might have occurred by operation of law.51

The second preliminary issue concerns the Government’s theory of how the intentional waiver occurred. On 

this point, the Government’s brief is clearer. The Government asserts that Appellant waived the issue because he 

“makes no claim that he was unaware of [the convening 

authority’s] role in the Purple Heart ceremony,” and yet he 

made no mention of this issue in his submissions to the 

convening authority under R.C.M. 1105 and 1106. Appellee’s Brief at 154. Accordingly, we consider only this specific theory of intentional waiver and we do not consider 

other possible theories of waiver.52

Having addressed these two preliminary issues, we now 

turn to the question of whether Appellant has intentionally 

waived the disqualification issue in the manner the Government alleges. This is “a legal question that this Court 

reviews de novo.” Day, 83 M.J. at 56. We are aided in deciding this issue by two precedents. In Gudmundson, an 

appellant argued for the first time on appeal that the convening authority should have been disqualified from 

51 For example, we do not consider whether waiver by operation of law occurred under R.C.M. 1105(d)(1) or (2) (2008 ed.), 

which address the failure to submit matters to the convening 

authority that might affect the convening authority’s decision 

whether to disapprove any findings of guilty or to approve the 

sentence.

52 For example, we do not consider the possibilities that Appellant expressly waived the argument based on anything he or 

his counsel said in their submissions to the convening authority 

or by not raising the issue on appeal to the ACCA.
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approving the findings and sentence because he had testified at a suppression hearing. 57 M.J. at 495. This Court 

held that the appellant had waived the objection because, 

having been present at the suppression hearing, the appellant clearly knew of the possible ground for disqualification 

but “he chose to not raise the disqualification issue at trial 

or in his post-trial submission to the convening authority.” 

Id. In contrast, this Court in United States v. Fisher confronted a situation where the appellant argued for the first 

time on appeal before the CCA that the convening authority should have recused himself because the convening authority had made a statement disparaging defense counsel 

as unethical. 45 M.J. 159, 160, 163 (C.A.A.F. 1996). The 

Court held that the appellant had not waived the issue because there was “no evidence or other indication that [the] 

appellant, herself, was aware of [the convening authority’s] 

statement and made a knowing and intelligent waiver of 

her right to contest his qualifications to take the action on 

her court-martial.” Id. at 163.

We think that this case is much closer to Fisher than 

Gudmundson. The Government has cited nothing in the 

record establishing Appellant was aware that the convening authority had awarded Purple Heart medals to the victims of the shooting. Instead, as noted above, the Government only asserts that Appellant “makes no claim that he 

was unaware of [the convening authority’s] role in the Purple Heart ceremony.” Appellee’s Brief at 154. Under Fisher, 

this assertion is insufficient to establish an intentional 

waiver. We therefore conclude that Appellant did not waive 

the disqualification issue.

The next question is whether Appellant forfeited the issue or preserved it. If an issue is forfeited, we review it for 

plain error. United States v. Tunstall, 72 M.J. 191, 193 

(C.A.A.F. 2013). But if Appellant preserved the issue, we 

must review de novo his claim that the convening authority 

was disqualified from taking post-trial action on his courtmartial. United States v. Davis, 58 M.J. 100, 102 (C.A.A.F. 

2003). In the instant case, Appellant argues that we should 

review the issue de novo. We disagree. Although we accept 
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as true Appellant’s assertion that at the time he filed his 

submission with the convening authority he did not know 

about the Purple Heart awards ceremony, he makes no 

similar representation regarding his filing with the lower 

court. Specifically, Appellant does not claim that at the 

time he filed his brief with the ACCA he was unaware of—

or, using reasonable diligence, could not have been aware 

of—the Purple Heart awards ceremony. Further, we note 

that this ceremony took place approximately two and a half 

years before Appellant filed his initial brief with the lower 

court. And, to demonstrate the perils of considering an issue such as this one that was not considered below, we note 

that Appellant did not include in the record any documentation of the Purple Heart ceremony or the specifics of LTG 

MacFarland’s participation in it. 

Under these circumstances, we hold that Appellant has 

forfeited this issue because he failed to raise it in a timely 

manner before the court below. See Rich, 79 M.J. at 475 

(“[F]orfeiture is the failure to make the timely assertion of 

a right . . . .” (citation omitted) (internal quotation marks 

omitted)). As a consequence, it is appropriate for this Court 

to apply a plain error standard of review. United States v. 

King, 83 M.J. 115, 120-21 (C.A.A.F. 2023) (applying plain 

error review under circumstances of forfeiture). 

III. Applicable Law

The version of Article 60, UCMJ, in effect at the time of 

Appellant’s court-martial authorized the convening authority to set aside or change a finding of guilty and to “approve, disapprove, commute, or suspend the sentence in 

whole or in part.” Article 60(c)(2), UCMJ, 10 U.S.C. 

§ 860(c)(2) (2012). The applicable version of Article 60 further stated: “The authority under this section to modify the 

findings and sentence of a court-martial is a matter of command prerogative involving the sole discretion of the convening authority.” Article 60(c)(1), UCMJ; see also R.C.M. 

1107(b)(1) (2012 ed.). 

This Court has identified two circumstances in which a 

convening authority is disqualified from taking this type of 
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discretionary post-trial action: (1) the convening authority 

“is an accuser, has a personal interest in the outcome of the 

case, or has a personal bias toward the accused”; or (2) the

convening authority displays “an inelastic attitude toward 

the performance of their post-trial responsibility.” Davis, 

58 M.J. at 102 (citations omitted). Stated differently, 

“[w]here a convening authority reveals that the door to a 

full and fair post-trial review process is closed, . . . the convening authority must be disqualified.” Id. at 103. When 

disqualification occurs, a different person authorized under 

the UCMJ is designated to exercise the powers outlined in 

Article 60. R.C.M. 1107(a) Discussion (2012 ed.).

If a disqualified convening authority takes post-trial action on a case, this constitutes error. In order to obtain relief, however, an appellant must make a “colorable showing 

of possible prejudice” resulting from the error. United 

States v. Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998) (internal quotation marks omitted) (quoting United States v. 

Chatman, 46 M.J. 321, 323-24 (C.A.A.F. 1997)). “By definition, assessments of prejudice during the clemency process 

are inherently speculative. Prejudice, in a case involving 

clemency, can only address possibilities in the context of an 

inherently discretionary act.” Taylor, 60 M.J. at 195 (internal quotation marks omitted) (quoting United States v. 

Lowe, 58 M.J. 261, 263 (C.A.A.F. 2003)).

IV. Discussion

Because a plain error standard of review applies in this 

instance, Appellant first has the burden of showing that it 

was “clear or obvious” error for LTG MacFarland to exercise his discretionary authority under Article 60 as the convening authority in this case. See United States v. Adams, 

81 M.J. 475, 479 (C.A.A.F. 2021) (citation omitted) (internal quotation marks omitted). We conclude that Appellant 

has not met that burden. Specifically, Appellant has failed 

to establish that LTG MacFarland had a personal interest 

in the case, was biased against the accused, or had an “inelastic attitude” regarding the exercise of his post-trial discretionary authority. Davis, 58 M.J. at 102. 
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We underscore again that Appellant has failed to include in the record a transcript—or even excerpts or press 

clippings—of LTG MacFarland’s remarks. But even assuming LTG MacFarland made the comments attributed 

to him by Appellant, these statements standing alone do 

not establish that LTG MacFarland was disqualified from 

subsequent participation as the convening authority in Appellant’s case. Rather, we agree with the Government, 

which makes the following point:

In presenting the medals, LTG MacFarland was 

performing an administrative act in his capacity 

as Commander of III Corps and Fort Hood. 

Although LTG MacFarland made statements 

valorizing the victims of the shooting, none of the 

statements indicated that he had the kind of 

personal connection with the case or bias that 

would be disqualifying. 

Appellee’s Brief at 156. 

Appellant contends that LTG MacFarland’s participation in the awards ceremony is self-evident “clear or obvious error” because the Army itself previously opposed a 

pretrial awards ceremony on the grounds that it could “materially and directly compromis[e Appellant’s] ability to receive a fair trial.” However, we perceive an important distinction between a pretrial event—where future panel 

members could have been affected—and a post-trial event. 

Simply stated, in the latter scenario the concern about Appellant receiving “a fair trial” no longer existed. Thus, rather than look to the Army’s previous concerns under dissimilar circumstances, we must instead look to LTG 

MacFarland’s statements themselves in order to discern 

any evidence of personal interest, bias, or “inelastic attitude” that merited his disqualification from serving as the 

post-trial convening authority. Even Appellant’s own characterization of LTG MacFarland’s remarks do not rise to 

that level. Accordingly, there is an insufficient basis to conclude that Appellant has met his burden of demonstrating 

clear or obvious error here.
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Even if we were to conclude that LTG MacFarland’s 

participation under Article 60 was clear or obvious error, 

Appellant fails in his effort to demonstrate prejudice. Appellant expressly stated in his post-trial submission to the 

convening authority that he was not seeking “mercy” (i.e., 

clemency) from him. As the Government convincingly argues, “An accused who fails to seek clemency from the convening authority has no basis for asserting [on appeal] that 

the convening authority prejudiced him by not granting

him any.” Appellee’s Brief at 161. 

Accordingly, based on the record before us, we cannot 

conclude Appellant has established plain error for his claim 

that LTG MacFarland was disqualified from conducting 

the post-trial review of his case. 

Grostefon Issue: Whether the Military Judge Erred 

in Preventing Appellant from Presenting

a Defense of Others Defense

Pursuant to Grostefon, Appellant, through his counsel, 

personally asks us to consider whether the military judge 

erred in preventing Appellant from presenting at trial a 

“defense of others” defense. To resolve this issue, we first 

must determine whether Appellant’s proposed defense was 

reasonably raised by his proffered evidence. Upon doing so, 

we conclude that there was no proffered evidence to support a finding that the members of the Fort Hood community who were attacked by Appellant wrongfully posed an 

imminent threat to anyone in Afghanistan. Accordingly, we 

hold that the military judge did not err in denying Appellant the opportunity to argue this proposed defense.

I. Background

On June 4 and 10, 2013, Appellant submitted memoranda in support of his proposed “defense of others” defense

(or, as he sometimes referred to it, “the Defense of thirds”).

Appellant’s essential claim was that the war in Afghanistan was an illegal American invasion. The Taliban was, 

according to Appellant, “the innocent victim of an unlawful 

attack by the United States military and did not have a 

duty to retreat.” Appellant argued that because the 
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American presence in Afghanistan was illegal under international law, personnel of the United States military were 

“fair game” for the Taliban, including “uniformed soldiers 

in a designated deployment site getting ready to deploy to 

Afghanistan.” Therefore, according to Appellant, “an 

armed individual that sympathizes with the illegality of 

the attack on the Taliban and attacks targets in its defense 

would be permissible.” Appellant requested that the military judge “accept the Defense of thirds” as Appellant’s defense and “give instructions to the panel accordingly.”

The military judge ruled that even taking “as true the 

facts proffered by [Appellant], the proposed defense of others does not apply as a matter of law.” The military judge 

recognized that the “principles of self-defense . . . apply to 

the defense of another.” However, she concluded that this

defense “was not at issue under any set of circumstances 

[presented here] because the victims in Fort Hood, Texas, 

posed no imminent or immediate threat of death or grievous bodily harm to anyone in Afghanistan.” Thus, the military judge concluded that the “law does not support a defense of others under the facts and circumstances of this 

case.”

Before this Court, Appellant maintains his actions were 

undertaken in defense of members of the Taliban because

he “apprehended, on reasonable grounds, that death or 

grievous bodily harm” was about to be inflicted wrongfully 

upon them by the United States military. Appellant’s Brief

at A1-A2. Appellant argues the victims of his attack posed 

“an imminent threat to Taliban members” for two reasons: 

(1) “military personnel already represented an imminent 

danger” as the “United States had already engaged—and 

continued to engage—in an illegal attack against the Taliban”; and (2) “those pending deployment to support the 

United States operations constituted an imminent threat 

to the Taliban.” Id.

II. Standard of Review

The question of whether a special defense applies under 

the circumstances of a case is a matter of law, which we 
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106

review de novo. United States v. Tokash, 282 F.3d 962, 967 

(7th Cir. 2002) (“The legal sufficiency of a proffered defense 

is a question of law and therefore is reviewed de novo.”); see 

also United States v. Davis, 76 M.J. 224, 229 (C.A.A.F. 

2017) (reviewing de novo whether a defense was “reasonably raised by the evidence”).

III. Applicable Law

“Defense of another may excuse [criminal] liability 

. . . .” United States v. Ravenel, 26 M.J. 344, 351 (C.M.A. 

1988); see also R.C.M. 916(a) (2008 ed.) (defense of another 

does not deny “that the accused committed the objective 

acts constituting the offense charged,” but “denies, wholly 

or partially, criminal responsibility for those acts”). Military law recognizes “defense of another” as a special “defense to homicide.” R.C.M. 916(e)(5) (2008 ed.). This defense requires that the object of the defendant’s protection 

have a right to self-defense in their own right and the accused did “not use more force than the person defended was 

lawfully entitled to use under the circumstances.” Id.; see 

also United States v. Lanier, 50 M.J. 772, 777-78 (A. Ct. 

Crim. App. 1999) (noting that accused who claims the special defense of defending another “steps into the shoes of 

the defended person”). Therefore, the “principles of self-defense . . . apply to defense of another.” R.C.M. 916(e)(5)

(2008 ed.).

In cases of homicide, an individual has a right to selfdefense where they “[a]pprehended, on reasonable 

grounds, that death or grievous bodily harm was about to 

be inflicted wrongfully on” that individual, and that the individual “[b]elieved that the force [the individual] used was 

necessary for protection against death or grievous bodily 

harm.” R.C.M. 916(e)(1)(A)-(B) (2008 ed.) (emphasis 

added). In other words, the right to self-defense arises 

where an individual believes that a wrongful use of force is 

imminent. See United States v. Bransford, 44 M.J. 736, 738 

(C.A.A.F. 1996) (equating “about to be” with “imminent”);

see also United States v. Yanger, 67 M.J. 56, 58 (C.A.A.F. 

2008) (finding the “possibility of self-defense was resolved” 

in part when the appellant “did not apprehend, reasonably 
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107

or otherwise, imminent bodily harm”); Black’s Law Dictionary 898 (11th ed. 2019) (defining “imminent” as “threatening to occur immediately; dangerously impending” or 

“[a]bout to take place”).

The test for whether this special defense may be raised 

at trial is whether the accused proffers some evidence of the 

elements of the defense. United States v. Johnson, 416 F.3d 

464, 468 (6th Cir. 2005) (stating that when an affirmative 

defense is raised in a pretrial motion, “if the defendant’s 

proffered evidence is legally insufficient to support a . . . 

defense, the trial judge should not allow its presentation to 

the jury”); Tokash, 282 F.3d at 967 (“[W]here the evidence 

proffered . . . is insufficient as a matter of law to support 

the affirmative defense a pre-trial ruling precluding the 

presentation of the defense at trial is appropriate.”); cf. 

United States v. Feliciano, 76 M.J. 237, 240 (C.A.A.F. 2017) 

(requiring the military judge to instruct on a defense when 

“ ‘there is some evidence in the record, without regard to 

credibility, that the members could rely upon if they 

choose’ ” (quoting United States v. Behenna, 71 M.J. 228, 

234 (C.A.A.F. 2012))).

IV. Discussion

Appellant asserted before the military judge that he attacked his fellow soldiers at the Fort Hood SRP center because he was protecting members of the Taliban—located

in Afghanistan—from imminent harm. Similarly, he argues before this Court that American military personnel 

posed an “immediate danger” to Afghan fighters because 

the United States “had already engaged—and continued to 

engage—in an illegal attack on the Taliban.” Appellant’s 

Brief at A2. However, the military judge found that any alleged threat was simply too remote for the “defense of others” defense to apply here. We agree. 

The time and distance separating Fort Hood from Afghanistan is obvious. Therefore, there were no objectively 

“reasonable grounds” to believe that any of Appellant’s victims were “about to” inflict harm on members of the Taliban. Without any proffer of evidence on this threshold issue 
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108

of whether there was an imminent threat, Appellant’s special defense of “defense of others” was not supported by 

“some evidence.”53 Accordingly, the military judge did not 

err in refusing to allow Appellant to present a defense to 

the contrary. R.C.M. 916(e)(1)(A) (2008 ed.).

Appellant counters that the understanding of 

imminence should carry the same meaning here as was 

purportedly used by the United States to justify the 

targeted killing of Anwar al-Aulaqi (alternatively spelled 

“al-Awlaki”). Even if we were to assume there is some 

relevance to this line of argument, we are in no position to 

second guess the justification given by the United States 

that al-Aulaqi posed a continued and imminent threat. See

Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 47 (D.D.C. 2010)

(“[T]he D.C. Circuit has expressly held that the question

whether an organization’s alleged ‘terrorist activity’

threatens ‘the national security of the United States’ is 

‘nonjusticiable.’ ” (quoting People’s Mojahedin Org. of Iran 

v. U.S. Dep’t of State, 182 F.3d 17, 23 (D.C. Cir. 1999))); see 

also El-Shifa Pharm. Indus. Co. v. United States, 607 F.3d 

836, 844 (D.C. Cir. 2010) (“It is not the role of judges to 

second-guess, with the benefit of hindsight, another 

branch’s determination that the interests of the United 

States call for military action.”). However, assessing 

whether Appellant can be held criminally liable for his 

actions falls squarely within our purview. And on that 

score, it is axiomatic that when it comes to defense of 

others, one must reasonably believe that others are in 

53 See Tokash, 282 F.3d at 967 (“To entitle a defendant to 

present an affirmative defense to the jury, his proffer must meet 

the minimum standard as to each element of the defense . . . . 

[and] must present more than a scintilla of evidence that demonstrates that he can satisfy the legal requirements for asserting 

the proposed defense.” (citations omitted) (internal quotation 

marks omitted)); Harris v. Scully, 779 F.2d 875, 879 (2d Cir. 

1985) (stating the trial judge properly denied a defense of others 

jury instruction because “no version of the events warrants an 

inference that petitioner reasonably believed that, at the time of 

the killing, [the victim] was using or was about to use deadly 

physical force against” others).
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109

immediate danger of unlawful bodily harm. We find there 

is no support in the record for Appellant to claim he 

reasonably believed members of the Taliban were in 

immediate danger of unlawful bodily harm from his victims 

at the SRP center. For these reasons, the military judge 

properly excluded the “defense of others” defense.54

Unbriefed Issues

In our Briefing Order, United States v. Hasan, 81 M.J. 

238, 239 (C.A.A.F. 2021), we invited Appellant to raise 

“systemic issues previously decided by this Court but 

raised to avoid waiver.” We stated that these systemic “issues may be listed without argument as an exception to 

Rule 24(a)” of this Court’s Rules of Practice and Procedure,

54 Appellant cites Holmes v. South Carolina, 547 U.S. 319, 

324 (2006), to argue that regardless of whether the “defense of

others” defense was permissible, the military judge erred by prohibiting him from “providing his version of events.” Appellant’s 

Brief at A10-A11. However, as we recently noted in United 

States v. Beauge, 82 M.J. 157 (C.A.A.F. 2022), the Holmes Court 

stated “only rules which ‘infring[e] upon a weighty interest of 

the accused and are arbitrary or disproportionate to the purposes they are designed to serve’ will be held to violate the right 

to present a complete defense.” Id. at 167 (alterations in original) 

(quoting Holmes, 547 U.S. at 324-25). As the Court of Appeals 

for the Sixth Circuit recognized in Johnson, 416 F.3d at 468:

[It is] a trial judge’s duty to require a prima 

facie showing by the defendant that he can produce evidence on each of the elements of the defense. A trial judge does not ‘invade’ the province 

of the jury when determining, as a preliminary 

matter, whether a defendant has met the burden 

of introducing sufficient evidence on each of the 

elements of an asserted defense . . . .

Indeed, by prohibiting Appellant’s presentation of a nonviable 

defense, the military judge rationally prevented the waste of 

time and potential confusion that would have accompanied the 

admission of irrelevant evidence. Therefore, we do not find a basis to conclude that the requirement for Appellant to demonstrate the legal viability of his proposed defense was either arbitrary or disproportionate to the purposes served.
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but we directed Appellant to “cite pertinent authority to 

support the position taken.” Id. Appellant’s opening brief 

with this Court includes the eleven briefed issues addressed above, and it also lists nine issues specific to this 

case and twenty-nine systemic issues regarding capital 

punishment.55 However, Appellant did not provide any argument in support of the latter issues, nor did he cite pertinent authority for many of these listed issues as instructed by our Briefing Order. Furthermore, Appellant’s 

reply brief focuses solely on the briefed issues. 

We have reviewed each of these issues and conclude 

that Appellant is not entitled to relief.

Judgment

The decision of the United States Army Court of Criminal Appeals is affirmed.

55 These issues are listed in the Appendix to this decision. 

We note that some of the issues labeled as “systemic” by Appellant are, in fact, specific to his case. However, to remain consistent with the order the issues were presented in his brief, we 

use the same organizational scheme. 
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Appendix56

Part A: Section IV (Case Specific Issues)

A.I

Whether the military judge erred in finding that Appellant’s waiver of counsel was knowing and intelligent when 

she received notice from his expert expressing concern over 

his “adjudicative capacity” and recommending further assessment for his schizotypal personality but failed to reopen the waiver inquiry, especially in light of the fact that 

she knew Appellant refused to submit to psychological testing during his Rule for Courts-Martial (R.C.M.) 706 board.

A.II

Whether the military judge erred to Appellant’s substantial prejudice by denying his motion for change of 

venue.

A.III

Whether the military judge erred by not ensuring adequate voir dire that resulted in a panel that was tainted by 

excess publicity.

A.IV

Whether the aggravating factors in this case, to include 

“the prosecution exhibits” and “the nature of the weapon,” 

were unconstitutionally vague and duplicative. See Jones 

v. United States, 527 U.S. 373 (1999).

A.V

Whether the military judge erred by abdicating her responsibility of courthouse security to the government.

A.VI.

Assuming arguendo that this Court does not overturn 

United States v. Dock, whether Appellant’s actions at trial, 

to include admitting that he was the shooter, amount to a 

56 See Appellant’s Brief at 171-80.
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112

guilty plea prohibited by Article 45, UCMJ. See also United 

States v. McFarlane, 23 C.M.R. 320 (1957).

A.VII.

Whether the military judge erred to the substantial 

prejudice of Appellant by denying stan[d]by counsels’ motion to submit matters in mi[tig]ation and extenuation.

A.VIII

The Government failed to offer reasonable, plausible, 

and non-discriminatory reasons to challenge LTC S., a prospective panel member, pursuant to Batson v. Kentucky, 

476 U.S. 79 (1986).

A.IX

The cumulative errors in this case compel reversal of 

the findings and sentence.

Part B (Systemic Issues)

B.I

Whether the President exceeded his authority in promulgating aggravating factors in Rule for Courts-Martial 

(R.C.M.) 1004.

B.II

Standards applicable to federal and state capital defense counsel have applicability to courts-martial as relevant standards of care, and the Army court’s analysis of 

Major Hasan’s case was flawed because of its misapplication of the guidelines and its determination counsel were 

“well-qualified.”

B.III

Under the Supreme Court’s reasoning in Ring v. Arizona, 536 U.S. 584 (2002), Congress unconstitutionally delegated to the President the power to enact elements of capital murder, a purely legislative function.

B.IV

The lack of a system to ensure consistent and evenhanded application of the death penalty in the military 
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violates both Major Hasan’s equal protection rights and Article 36, UCMJ. See 18 U.S.C. § 2245 and U.S. Dep’t of Justice, U.S. Attorney’s Manual § 9-10.010 (June 1998) 

(USAM) and 10 U.S.C. § 949a(b)(2)(C)(ii). In contrast to the 

USAM, no protocol exists for convening authorities in capital cases, creating an ad hoc system of capital sentencing.

B.V

The military justice system’s peremptory challenge procedure, which allows the government to remove any one 

member without cause, is an unconstitutional violation of 

the Fifth and Eighth Amendments to the U.S. Constitution 

in capital cases, where the prosecutor is free to remove a 

member whose moral bias against the death penalty does 

not justify a challenge for cause. But see United States v. 

Curtis, 44 M.J. 106, 131-33 (C.A.A.F. 1996); United States 

v. Loving, 41 M.J. 213, 294-95 (C.A.A.F. 1994).

B.VI

Rule for Courts-Martial (R.C.M.) 1004 does not ensure 

the goals of individual fairness, reasonable consistency, 

and absence of error necessary to allow this Court to affirm 

Appellant’s death sentence because R.C.M. 1004 does not 

ensure the race of the victim or alleged perpetrator is not a 

factor in the death sentence. McCleskey v. Kemp, 481 U.S. 

279 (1987).

B.VII

The variable size of the court-martial panel constituted 

an unconstitutional condition on Major Hasan’s fundamental right to conduct voir dire and promote an impartial 

panel. Irvin v. Dowd, 366 U.S. 717, 722, 81 S. Ct. 1639, 6 

L. Ed. 2d 751 (1961).

B.VIII

The death sentence in this case violates the Fifth, Sixth, 

and Eighth Amendments and Article 55, UCMJ, because 

the military system does not guarantee a fixed number of 

members. Irvin v. Dowd, 366 U.S. 717, 722, (1961).
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114

B.IX

The role of the convening authority in the military justice system denied Major Hasan a fair and impartial trial 

in violation of the Fifth, Sixth, and Eighth Amendments 

and Article 55, UCMJ, by allowing the convening authority 

to act as a grand jury in referring capital criminal cases to 

trial, personally appointing members of his choice, rating 

the members, holding the ultimate law enforcement function within his command, rating his legal advisor, and acting as the first level of appeal, thus creating an appearance 

of impropriety through a perception that he acts as prosecutor, judge, and jury.

B.X

Article 18, UCMJ, and R.C.M. 201(f)(1)(C), which require trial by members in a capital case, violates the guarantee of due process and a reliable verdict under the Fifth, 

Sixth, and Eighth Amendments.

B.XI

Major Hasan was denied his right to a trial by an impartial jury composed of a fair cross-section of the community in violation of the Sixth Amendment to the U.S. Constitution. Duren v. Missouri, 439 U.S. 357 (1979). But see

United States v. Curtis, 44 M.J. 106, 130-33 (C.A.A.F. 

1996).

B.XII

The selection of the panel members by the convening 

authority in a capital case directly violates Major Hasan’s 

rights under the Fifth, Sixth, and Eighth Amendments to 

the U.S. Constitution and Article 55, UCMJ, by in effect 

giving the government unlimited peremptory challenges.

B.XIII

The President exceeded his Article 36 powers to establish procedures for courts-martial by granting trial counsel 

a peremptory challenge and thereby the power to nullify 

the convening authority’s Article 25(d) authority to detail 

members of the court.
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115

B.XIV

The designation of the senior member as presiding officer for deliberations denied Major Hasan a fair trial before impartial members in violation of the Fifth, Sixth, and 

Eighth Amendments to the U.S. Constitution and Article 

55, UCMJ.

B.XV

Major Hasan was denied his constitutional right under 

the Fifth Amendment to a grand jury presentment or 

indictment.

B.XVI

Court-martial procedures denied Major Hasan his Article III right to a jury trial. Solorio v. United States, 483 U.S. 

435, 453-54, (1987) (Marshall, J., dissenting). But see 

United States v. Curtis, 44 M.J. 106, 132 (C.A.A.F. 1996).

B.XVII

This Court lacks the jurisdiction and authority to review the constitutionality of the rules for courts-martial 

and the UCMJ because this Court is an Article I court, not 

an Article III court with the power to check the legislative 

and executive branches under Marbury v. Madison, 5 U.S. 

137, 2 L. Ed. 60, 1 Cranch (1803). See also Cooper v. Aaron, 

358 U.S. 1 (1958) (the power to strike down unconstitutional statutes or executive orders is exclusive to Article III

courts). But see Loving, 41 M.J. at 296.

B.XVIII

Major Hasan is denied equal protection of law in violation of the Fifth Amendment as all U.S. civilians are afforded the opportunity to have their cases reviewed by an 

Article III court, but members of the United States military 

by virtue of their status as service members are not. But 

see United States v. Loving, 41 M.J. 213, 295 (C.A.A.F. 

1994).
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116

B.XIX

Major Hasan is denied equal protection of law under the 

Fifth Amendment to the U.S. Constitution because [in accordance with] Army Regulation 15-130, para. 3-1(d)(6), his 

approved death sentence renders him ineligible for clemency by the Army Clemency and Parole Board, while all 

other cases reviewed by this Court are eligible for such consideration. But see United States v. Thomas, 43 M.J. 550, 

607 (N-M. Ct. Crim. App. 1995).

B.XX

Major Hasan’s death sentence violates the Eighth 

Amendment prohibition against cruel and unusual punishment because the capital referral system operates in an arbitrary and capricious manner.

B.XXI

The death penalty provision of Article 118, UCMJ, is 

unconstitutional as it relates to traditional common law 

crimes that occur in the U.S. But see United States v. 

Loving, 41 M.J. 213, 293 (C.A.A.F. 1994). The Court 

resolved the issue against Private Loving, adopting the 

reasoning of the decision of the Army Court of Military 

Review. See United States v. Loving, 34 M.J. 956, 967 

(A.C.M.R. 1992). However, Private Loving’s argument 

before the Army court relied on the Tenth Amendment and 

Necessary and Proper Clause of the U.S. Constitution. Id. 

Major Hasan’s argument relies on the Eighth Amendment 

to the U.S. Constitution.

B.XXII

The death sentence in this case violates the Fifth and 

Eighth Amendments to the U.S. Constitution and Article 

55, UCMJ, as the convening authority did not demonstrate 

how the death penalty would enhance good order and 

discipline.
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117

B.XXIII

The military capital sentencing procedure is unconstitutional because military judges do not have the power to 

adjust or suspend a death sentence improperly imposed.

B.XXIV

Due to the military justice system’s inherent flaws capital punishment amounts to cruel and unusual punishment 

under all circumstances.

B.XXV

R.C.M. 1001(b)(4) is unconstitutionally vague and overbroad as applied to the appellate and capital sentencing 

proceedings because it permits the introduction of evidence 

beyond that of direct family members and those present at 

the scene in violation of the Fifth and Eighth Amendments.

B.XXVI

R.C.M. 1001(b)(4) is unconstitutionally vague and overbroad as applied to the appellate and capital sentencing 

proceedings because it permits the introduction of circumstances which could not reasonably have been known by 

Major Hasan at the time of the offense in violation of his 

Fifth and Eighth Amendment rights.

B.XXVII

The military judge erred in admitting victim-impact evidence regarding the personal characteristics of the victims 

which could not reasonably have been known by Major Hasan at the time of the offense in violation of his Fifth and 

Eighth Amendment rights.

B.XXVIII

The death sentence in this case violates the Ex Post 

Facto Clause, Fifth and Eighth Amendments, separation of 

powers doctrine, preemption doctrine, and Article 55, 

UCMJ, because when it was adjudged neither Congress nor 

the Army specified a means or place of execution.
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118

B.XXIX

Whether the panel and the military judge were biased 

against Appellant.