PUBLISHED OPINION OF THE COURT
This сase is before us for the second time. We previously set aside the findings and sentence and remanded for rehearing or dismissal. United States v. Bagstad, No. 200602454,
The appellant asserts that the military judge abused his discretion by denying the appellant’s challenge for cause against Captain (Capt) Stojka. After considering the record of trial, the appellant’s assignment of error, the Government’s answer, and oral argument by the рarties, we conclude that the findings and sentence are correct in law and fact, and no error materially prejudicial to the substantial rights of the appellant ocсurred. Arts. 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a) and 866(c).
Background
The appellant’s court-martial assembled with two officer and three enlisted members. The military judge sua sponte excused one of the two officers when individual voir dire revealed that she had previously been the appellant’s commanding officer and was aware of a pending special court-martial conviction. Following, group and individual voir dire, the defense challenged Capt Stojka for cause stating:
He [Capt Stojka] writes on one of the other members, Gunnery Sergeant Wal-ston. The [convening authority] is [Stoj-ka’s] reporting senior. The [convening authority] and he have shared a discussion on military justice and the [convening authority’s] view on military justice, the meaning of which is hard to decipher. But it seems clear that Captain Stojka was reluctant to answer to speak about that conversation.
Record at 51.
With respect to the senior-subordinate relationship between Capt Stojka and Gunnery Sergeant (GySgt) Walston, the record reveals that the military judge asked for and received assurance from both GySgt Walston and Capt Stojka that their official senior-subordinate relationship would neither “inhibit” GySgt Walston from offering an opinion contrary to that of Capt Stojka nor lead Capt Stоjka to feel “undermined” if the GySgt disagreed with him. We further note that the individual military counsel (IMC) did not question Capt Stojka or GySgt Walston about their senior-subordinate relationship.
The military judge denied thе defense challenge for cause noting that application of the liberal grant mandate does not mean that he is obliged to grant all challenges for cause without a basis. He also took issue with the defense characterization of Capt Stojka’s reluctance to discuss his conversations with the convening authority, noting that Capt Stojka was аpparently “reluctant to try and decide what the convening authority wanted done in this case_” Record at 52. The military judge further noted that the alleged conversation about military justice “did not appear to be about military justice, more to do with the law center and the way they handled business over here ...” Id. The military judge did not directly comment on the fact that Capt Stojka was GySgt Walston’s reporting senior. Following the military judge’s denial, the appellant exercised his preemptory challenge against one of the three enlisted members of the venire, not Capt Stojka.
On appeal, the appellant focuses on the question of implied bias arising from the superior-subordinate relationship between Cаpt Stojka and GySgt Walston. Relying on United States v. Wiesen,
Discussion
We review issues of implied bias for an abuse of discretion, but the objective nature of the inquiry affords less deference to the military judge. United States v. Townsend,
“An accused is entitled to a trial by membеrs who are qualified, properly selected, and impartial.” Moreno,
In focusing on the public perception of fairness, we consider the perspective of reasonable people possessed with “all the facts.” United States v. Townsend, No. 200501197,
In Wiesen, the court found implied bias, where the military judge rejected a for-cause challenge against the senior member of a venire, when the senior member аnd his subordinates “comprised the two-thirds majority sufficient to convict.”
In reaching this decision, the court noted that the existence of a senior-subordinate relationship is not a per se disqualification, but a “contextual” one rooted in the public’s perception of respect and deference afforded to senior officers in the military. Id. at 175-76 (citing United States v. Rome,
We, therefore, focus on an informed public’s perception of deference and respect afforded to senior officers in the armed forces, and examine all the facts and circumstances in the context of the senior-subordinate relatiоnship between a captain and a gunnery sergeant. Id. at 175-176; see Lewis,
Analysis
Although we are faced with a panel containing a senior-subordinate relationship comprising two-thirds of the panel mеmbership, as in Wiesen, the contextual facts are quite different. First, this case involves a
Further, unlike' Wiesen, which featured multiple subordinates, the instant case reveals only a single senior-subordinate relationship. The six senior-subordinate relationships in Wiesen included three lieutenant colonels that a knowledgeable public might reasonably perceive as competing for promotion. This fact аlone creates a source of potential pressure for the subordinates to attempt to curry favor from their superior. No such competitive grouping exists in the instant сase.
Taking into account the particular context of this case, we find that the dynamic of a three-member panel comprised of a company-grade officеr and two senior NCO’s would not reasonably strain an informed public’s perception of fairness in the military justice system. In this context, we objectively see no plausible risk that an informed рublic would perceive that the accused did not get a full and fair trial. We find, therefore, that the military judge did not commit a clear abuse of discretion in denying the challenge for cause against Capt Stojka.
Conclusion
The findings and the approved sentence are affirmed.