UNITED STATES, Appellee 

v. 

William C. BRAGG, Staff Sergeant 

U.S. Marine Corps, Appellant 

No. 07-0382 

Crim. App. No. 200600228 

United States Court of Appeals for the Armed Forces 

Argued February 26, 2008 

Decided May 27, 2008 

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

C.J., and ERDMANN, STUCKY, and RYAN, JJ., joined. 

Counsel

For Appellant: Major Brian L. Jackson, USMC (argued); 

Lieutenant Commander Ricardo A. Berry, JAGC, USNR. 

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

Geoffrey S. Shows, USMC, and Commander Paul C. LeBlanc, JAGC, 

USN. 

Military Judge: R. S. Chester 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 
United States v. Bragg, No. 07-0382/MC 

2

Judge BAKER delivered the opinion of the Court. 

Appellant was tried by a general court-martial convened 

with members at Marine Corps Recruit Depot, San Diego, 

California. Contrary to his pleas, he was found guilty of 

violating a lawful general order, rape, indecent assault, 

indecent language, and adultery, all in violation of Articles 

92, 120, and 134, Uniform Code of Military Justice (UCMJ), 10 

U.S.C. §§ 892, 920, 934 (2000). The court sentenced Appellant 

to a dishonorable discharge, confinement for five years, 

forfeiture of all pay and allowances, and reduction to the 

lowest enlisted grade. The convening authority approved the 

sentence as adjudged, but the United States Navy-Marine Corps 

Court of Criminal Appeals reduced Appellant’s period of 

confinement to four years, eleven months. United States v. 

Bragg, No. NMCCA 200600228, 2007 CCA LEXIS 44, at *19, 2007 WL 

1704149, at *7 (N-M. Ct. Crim. App. Feb. 21, 2007) 

(unpublished). This Court granted review of the following 

question: 

WHETHER THE LOWER COURT ERRED IN UPHOLDING THE MILITARY 

JUDGE’S DENIAL OF THE CHALLENGE FOR CAUSE OF LIEUTENANT 

COLONEL [W]. 

Based on the reasoning below, we hold that the lower court 

erred. 
United States v. Bragg, No. 07-0382/MC 

3

BACKGROUND 

 Appellant was convicted of committing rape, and other 

inappropriate acts against two female high school students while 

serving as a recruiter for the United States Marine Corps. 

During voir dire of the court-martial members, one member, 

Lieutenant Colonel (LtCol) W, volunteered that he had learned 

information about the case outside of the trial proceedings. 

LtCol W stated that in his former role as the deputy assistant 

chief of staff for recruiting, he “usually” read the “relief for 

cause” (RFC) packages that would have been submitted for any 

recruiters accused of misconduct under his jurisdiction. While 

he lacked specific memory of most of the particulars of the 

case, LtCol W was able to recall several facts, including the 

nature of the offense, the general identity of the victim, and 

investigatory measures undertaken by the police. LtCol W stated 

that he was unsure whether he had gained his knowledge of the 

case through reading the RFC packet or through reading the 

newspaper. However, after recalling what he knew of the case, 

he later stated, “[s]o, based off that, I believe I read the 

investigation as opposed to reading the newspaper accounts and 

all that kind of stuff.” 

When asked whether he would have made a recommendation on 

the case, LtCol W equivocated, then stated, “I probably would 

have recommended relief if it had come up in front of me.” 
United States v. Bragg, No. 07-0382/MC 

4

LtCol W also stated that he would have read any RFC packets 

submitted before July 17, 2003. The offenses at issue in this 

case were committed between April 3, 2003, and April 10, 2003, 

and charges were preferred on May 28, 2003. In addition to 

volunteering the foregoing information, LtCol W also stated that 

he could be impartial in sitting as a member of the courtmartial. 

The military judge denied defense counsel’s challenge of 

LtCol W for cause, finding that LtCol W’s “answers and candor . 

. . and body language” suggested that he would be impartial, and 

decide the case solely on the evidence presented in court. As a 

result, defense counsel chose to exercise their peremptory 

challenge against LtCol W, rather than another member, 

Colonel C. 

DISCUSSION 

 An accused “has a constitutional right, as well as a 

regulatory right, to a fair and impartial panel.” United States 

v. Wiesen, 56 M.J. 172, 174 (C.A.A.F. 2001). Rule for CourtsMartial (R.C.M.) 912(f)(1)(N) requires that a member 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.” See United States v. Miles, 58 M.J. 192, 194 

(C.A.A.F. 2003). While this rule applies to both actual and 
United States v. Bragg, No. 07-0382/MC 

5

implied bias, “[t]he focus of this rule is on the perception or 

appearance of fairness of the military justice system.” United 

States v. Dale, 42 M.J. 384, 386 (C.A.A.F. 1995). This Court 

gives the military judge “great deference when deciding whether 

actual bias exists because it is a question of fact, and the 

judge has observed the demeanor of the challenged member.” 

United States v. Napolitano, 53 M.J. 162, 166 (C.A.A.F. 2000). 

A military judge is afforded less deference when we review a 

challenge for cause based on implied bias because the issue is 

“objectively viewed through the eyes of the public,” id.

(citation and quotation marks omitted), “focusing on the 

appearance of fairness,” United States v. Rome, 47 M.J. 467, 469 

(C.A.A.F. 1998) (citation omitted). Thus, “[i]ssues of implied 

bias are reviewed under a standard less deferential than abuse 

of discretion but more deferential than de novo.” Miles, 58 

M.J. at 195 (citation and quotation marks omitted). However, 

“[a] military judge who addresses implied bias by applying the 

liberal grant mandate on the record will receive more deference 

on review than one that does not.” United States v. Clay, 64 

M.J. 274, 277 (C.A.A.F. 2007). “We do not expect record 

dissertations but, rather, a clear signal that the military 

judge applied the right law. While not required, where the 

military judge places on the record his analysis and application 
United States v. Bragg, No. 07-0382/MC 

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of the law to the facts, deference is surely warranted.” Id.

(citation and quotation marks omitted). 

In making judgments regarding implied bias, this Court 

looks at the totality of the factual circumstances. United 

States v. Strand, 59 M.J. 455, 459 (C.A.A.F. 2004). “Implied 

bias exists when, regardless of an individual member’s 

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

prejudiced [i.e., biased].” Napolitano, 53 M.J. at 167 

(citation and quotation marks omitted). In this case the member 

indicated that he was aware of information about the case not 

available to the other members and from a source not readily 

available to others. Moreover, LtCol W, a senior member on the 

panel, suggested that prior to trial, it was likely that he 

would have been in a position to recommend, and may have 

recommended adverse administrative action against Appellant, for 

conduct forming the basis of the charges before the courtmartial. 

The purpose of voir dire and challenges is, in part, to 

ferret out facts, to make conclusions about the members’ 

sincerity, and to adjudicate the members’ ability to sit as part 

of a fair and impartial panel. However, the text of R.C.M. 912 

is not framed in the absolutes of actual bias, but rather 

addresses the appearance of fairness as well, dictating the 

avoidance of situations where there will be substantial doubt as 
United States v. Bragg, No. 07-0382/MC 

7

to fairness or impartiality. Thus, implied bias picks up where 

actual bias drops off because the facts are unknown, 

unreachable, or principles of fairness nonetheless warrant 

excusal. 

In the present case, for example, the military judge was 

not ultimately compelled to explore the capacity of LtCol W to 

recommend administrative relief in one context, yet keep an open 

mind about Appellant’s conduct when applying a criminal standard 

of review as a court-martial member. Nor, in the context of 

implied bias, must a military judge doubt the sincerity or 

veracity of a member’s statements -– and we do not doubt LtCol 

W’s integrity -- that he could evaluate the evidence with an 

open mind, in order to nonetheless conclude that the member 

should not sit. In this sense, it is not always possible to 

resolve facts or determine credibility and still remove the 

perception of doubt as to whether a member should sit. Implied 

bias and the liberal grant mandate allow a military judge to 

uphold the letter and spirit of R.C.M. 912 without at the same 

time questioning a member’s statement that he can sit with an 

open mind. See United States v. Townsend, 65 M.J. 460, 463 

(C.A.A.F. 2008) (implied bias determinations made “despite a 

disclaimer”). 

The liberal grant mandate and principles of implied bias 

also remove the necessity of reaching conclusions of fact that 
United States v. Bragg, No. 07-0382/MC 

8

are beyond the capacity of the member to recall. Thus, the 

military judge could not determine whether or not LtCol W 

actually recommended relief -- because LtCol W could not 

remember if he did. But if LtCol W believed he did, and the 

facts indicated he might well have, a substantial doubt is 

nonetheless raised as to fairness and impartiality. That is 

because no matter how sincere the particular member, we have 

substantial doubt that it is fair for a member to sit on a panel 

where that member has likely already reached a judgment as to 

whether the conduct in question has occurred. Such a conclusion 

is compounded when it is likely that the same member has reached 

such a conclusion based on facts contained outside the record. 

The liberal grant mandate exists for cases like this. 

Here, the record reflects that LtCol W might well have 

recommended relief for cause; and even if he did not, he stated 

that he would have done so. Viewed objectively, we conclude 

that a member of the public would have substantial doubt that it 

was fair for this member to sit on a panel where that member had 

likely already reached a judgment as to whether the charged 

misconduct occurred. This perception of unfairness is 

compounded when that member has likely reached such a conclusion 

based on information gained prior to trial. 
United States v. Bragg, No. 07-0382/MC 

9

DECISION 

The decision of the United States Navy-Marine Corps Court 

of Criminal Appeals is reversed and the findings and sentence 

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

Advocate General of the Navy. A rehearing may be ordered.