LUBASKY—ARMY 20020924

**UNITED STATES ARMY COURT OF CRIMINAL APPEALS**

Before

KERN, YOB, and BERG

Appellate Military Judges

**UNITED STATES, Appellee**

**v.**

**Chief Warrant Officer Four NEIL S. LUBASKY**

**United States Army, Appellant**

ARMY 20020924

101st Airborne Division (Air Assault) and Fort Campbell (trial)

Combined Arms Center and Fort Leavenworth (first and second rehearing)

Robert L. Swann, Military Judge (trial)

Timothy Grammel, Military Judge (first rehearing)

Susan Arnold, Military Judge (second rehearing)

Colonel Richard O. Hatch, Staff Judge Advocate (trial)

Colonel Anne E. Ehrsam-Holland, Staff Judge Advocate (first rehearing recommendation)

Lieutenant Colonel Neoma J. White, Acting Staff Judge Advocate (first rehearing post-trial addendum)

Colonel Fred P. Taylor, Staff Judge Advocate (second rehearing recommendation and addendum)

For Appellant:  Captain Jennifer A. Parker, JA; William E. Cassara; Esquire (on brief).

For Appellee:  Major Amber J. Williams, JA; Major LaJohnne A. White, JA (on brief).

27 September 2011

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SUMMARY DISPOSITION ON FURTHER REVIEW

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Per Curium:

This case comes before this court after a second sentence rehearing for appellant’s conviction on seven specifications of larceny in violation Article 121, Uniform Code of Military Justice, 10 U.S.C. §§ 921.  This second sentence rehearing was conducted at Fort Leavenworth, Kansas by a general court-martial composed of officer members, which sentenced the appellant to forfeit all pay and allowances, to be confined for 24 months, and to be dismissed from the service.  The convening authority approved only so much of the sentence as provided for confinement for 22 months, forfeiture of $5,811.00 pay per month for 22 months, followed by a forfeiture of $3,835.00 pay per month for 86 months.  

On appeal of this second sentence rehearing, appellant raises two assignments of error, one of which merits discussion.  Appellant alleges that the military judge erred by failing to grant defense counsel’s challenge for cause against all of the panel members on the basis of implied bias.  This bias is alleged to have arisen after two individuals imparted their knowledge of certain aspects of the case to members prior to the start of the rehearing.  These individuals who caused the issue were:  (1) a paralegal from the staff judge advocate’s office, who informed the members that this was not the first hearing for this case; and (2) a panel member telling other members that he was aware of the case and that there was more to it than what they would see.  

In making judgments regarding implied bias, we look at the totality of all the factual circumstances, and use an objective standard that focuses on the appearance of fairness viewed through the eyes of the public.  *United States v. Strand*, 59 M.J. 455, 458 (C.A.A.F. 2004) (citing *United States v. Napolitano*, 53 M.J. 162 (C.A.A.F. 2000) and *United States v. Rome*, 47 M.J. 467 (C.A.A.F. 1998).  Our standard for review of a military judge’s decision to excuse a member for implied bias is “less deferential than abuse of discretion, but more deferential than de novo review.”  *Strand*, 59 M.J. at 458 (citing *United States v. Miles*, 58 M.J. 195 (C.A.A.F. 2003) and *United States v. Downing*, 56 M.J. 419 (C.A.A.F. 2002)).  Our superior court has also instructed that when there is no actual bias, we should rarely invoke implied bias.  *United States v. Warden*, 51 M.J. 78, 81-82 (C.A.A.F. 1999).   

FACTS

The following are the relevant facts surrounding the two individuals who were the sources of the alleged implied bias:

(1)  Specialist B.L.M., a paralegal for the office of the staff judge advocate, was responsible for notifying and accounting for member presence at the trial. While performing those duties, Specialist B.L.M. informed the members that this was a sentence rehearing and it was not the first rehearing for this case.     

(2)  During individual voir dire of panel member Lieutenant Colonel S., he disclosed that while all of the members were gathered in the deliberation room prior to the start of the trial, he mentioned to the other members that: he was the appellant’s current battalion commander; he had reviewed the appellant’s case file; the case was very complicated; and there had been numerous appeals.  The military judge subsequently dismissed Lieutenant Colonel S. for cause because of his prior knowledge of the case.  

The military judge conducted a thorough individual voir dire of all members concerning the statements made by Specialist B.L.M. and Lieutenant Colonel S.  The questioning by counsel and the military judge revealed that none of the members who sat on the sentence rehearing had any knowledge of the specific details of the case.  Although each member who heard the comments had a slightly different recollection, the essence of what they heard was that this was not the first rehearing and that there was more to this case than what they would see.  Each member who heard the comments by either Specialist B.L.M. or Lieutenant Colonel S. individually affirmed that he or she would follow the military judge’s instructions and base their sentence solely on the evidence from the proceedings.  Each of those members also affirmed that they would give the accused a fair and impartial trial.  The military judge then made a specific finding that the members were credible and candid in their assurances that they would limit their consideration to the evidence that would be in front of them.  The military judge also gave a thorough instruction to the panel immediately prior to their deliberations that their considerations must be limited to what they heard in court and they were not to speculate regarding earlier proceedings.  

DISCUSSION

In his initial instructions to the panel, the military judge with consent of government and defense counsel, informed the panel that this case was a sentence rehearing based on legal error in the earlier case.  Although slightly more descriptive, the comments made by Specialist B.L.M. and Lieutenant Colonel S. were very general in nature and merely informed the members of the fact that this case was not before the panel as an original trial.  Neither the information provided by Specialist B.L.M., nor the offhanded comments by Lieutenant Colonel S. gave any details of the underlying facts of the case.  Rather, the information they imparted to the panel members related to the procedural posture of the case.  Under the totality of the factual circumstances in this case, including:  the lack of any specific knowledge of the facts of this case by the sitting panel members prior to the rehearing; the limited and general nature of the comments made by Specialist B.L.M. and Lieutenant Colonel S.; the absence of any actual bias; and the assurances by the sitting panel members that they would give appellant a fair trial based on the evidence from the proceedings, we find that the public, focusing on the appearance of fairness, would see the officers who sat on the panel as fully capable of providing appellant a fair hearing.

We also note that in denying the defense counsel challenge on grounds of implied bias, the military judge did not specifically articulate his findings in terms of implied bias.  We recognize that the Navy-Marine Court of Criminal Appeals recently determined that such an omission would trigger a de novo review of the issue.  *United States v. Nash*, NMCCA 201000220 (N.M. Ct. Crim. App. 28 June 2011) (unpub.).  We do not make such a determination in this case.  However, under the facts in this case, even if we applied a de novo review, we would not find implied bias.  Therefore, we uphold the decision of the military judge to deny the defense challenge to all of the members on the basis of implied bias.

**CONCLUSION**

We have considered appellant's other assignment of error, including matters raised pursuant to *United States v. Grostefon*, 12 M.J. 431 (C.M.A. 1982) and find all to be without merit.  On consideration of the entire record, we hold the sentence as approved by the convening authority correct in law and fact.  Accordingly, the sentence is AFFIRMED.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court 

� The underlying facts and procedural history regarding this case are thoroughly detailed by the Court of Appeals for the Armed Forces at 68 MJ 260 (C.A.A.F. 2010).

� The concept of implied bias stems from Rule for Courts-Martial 912(f)(1)(N):  “A member shall be excused for cause whenever it appears that the member: [s]hould not sit as a member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality.”

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