Opinion of the Court
Aрpellant was tried by a general court-martial with officer members sitting at Nellingen Barracks, Federal Republic of Germany. Contrary to his pleas, he was found guilty of aggravated assault, in violation of Article 128, Uniform Code of Military Justice, 10 U.S.C. § 928. He was sentenced to confinement for 1 year, total forfeitures for that period, and reduction to the lowest enlisted grade. The convening authority approved this sentence, and the Court of Military Review affirmed in an unpublished opinion.
This Court granted review of these two issues:
I
WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF THE APPELLANT BY FAILING TO DISMISS THE CHARGE AND SPECIFICATION FOR LACK OF JURISDICTION.
II
WHETHER THE MILITARY JUDGE ERRONEOUSLY DENIED A DEFENSE MOTION TO STRIKE THE DIRECT TESTIMONY OF TWO GOVERNMENT WITNESSES FOLLOWING THE GOVERNMENT’S FAILURE TO PRODUCE A VERBATIM COPY OR TAPE OF THEIR PRIOR SWORN TESTIMONY AS REQUIRED UNDER THE JENCKS ACT.
We have considered these questions and conclude that relief is not warranted.
The Court of Military Review briefly summarized the facts pertinent to each of the above issues:
The appellant asserts that the members detailed to his court-martial were improperly selected and therefore that his court-martial lacked рersonal jurisdiction over him. The charges were initially referred to trial by the general court-martial convened by Court-Martial Convening Order Number 367, dated 8 December 1980. According to a stipulation of fact, the trial counsel learned that because several of the members detailed by that order had been excused by the convening authority, additional members needed to be detailed. She was then instructed by the chief of the criminal law division in the office of the staff judge advocate to determine which members from another panel previously selected by the convening authority would be available. She was told to do this by starting with First Lieutenant Mitchell, a female officer, and then by order of seniority down the list to “find the first five members who were available on the scheduled trial date.” After the trial counsel did sо, the staff judge advocate recommended to the convening authority*447 that the five members be detailed to the appellant’s trial. He also advised the convening authority that he was not limited to those named but “could select members from throughout the command.” The convening authority agreed and detailed the five persons recommended. This action was appropriately reflectеd in an amending order.
* * * * * *
The appellant next asserts that the military judge erred by refusing to strike the testimony of the victim and a military police investigator pursuant to the Jencks Act, 18 U.S.C. § 3500. Both of these witnesses testified at the Article 32 [UCMJ, 10 U.S.C. § 832] investigation. The legal clerk who recorded those proceedings was asked by the appellant’s counsel to preserve the tape recordings. The clerk replied that he would. Upon changing jobs, the clerk gave the tapes to Specialist Stange, the noncommissioned officer in charge of the branch legal office involved. That individual testified that he placed the tapes in his desk, but did not take any special steps to protect them, and could not recall if they were specially marked. Shortly before trial, the defense counsel asked to review thе tapes. At that time, it was discovered that they had disappeared. As the government could not produce the tapes, the defense, upon completion of the direct examination of both witnesses, moved that the testimony of the witnesses be stricken pursuant to 18 U.S.C. § 3500(d). The military judge denied the motion.
Unpublished opinion at 1-2, 2-3.
I
Appellant’s basic contention is that purported defects in the process of detailing replаcement members for his court-martial deprived this military tribunal of its jurisdiction to try him for these offenses. See United States v. Ryan,
A
The first attack on the composition of аppellant’s court-martial is based on the prosecution’s role in securing replacement members. See generally United States v. Crumb,
We believe it is well-established in military law that the trial counsel, being a partisan advocate, can play no part in the selection of court members. United States v. Cherry,
Appellate defense counsel then asserts that the chief of the criminal law division should not have participated in the replacement process because he also had prosecutorial responsibilities and, in some respects, might be deemed the chief proseсutor in the office of the staff judge advocate.
Although this officer did not purport to act as trial counsel or assistant trial counsel, cf. United States v. Beard,
The Government referred to this officer as the “chief of military justice,” a position in the staff judge advocate’s office which is adverted to in the Army's Staff Judge Advocate Handbook, supra. Our perusal of this document does not indicate that the chief of military justice is intended to be a chief prosecutor or to perform prosecutorial duties. Id. at 23-24, 26-27. Moreover, we note that although in Greene this Court invalidated a selection of court members in which a major role was played by the chief of military justice in the office of an Air Force staff judge advocate, there was no intimation that this officer was disqualified per se by the duties of his position to participate in recommending court members.
If the defense argument were accepted here, it would be hard to escape applying the same rationale to the staff judge advocate, to whose office and supervision the trial counsel is assigned in the Army.
B
The second major challenge to the composition of appellant’s court-martial was that, although Lieutenant General Becton, the convening authority, had personally selected the replacement members, he had not been “wholly unfettered” in his choice. See United States v. Greene, supra at 237,
We recognize that the work of subordinates can be done in such a way that a superior has no practical alternative but to follow their recommendation. This goes far beyond efficiеnt staff work by subordinates to anticipate the wishes of the superior. If it appeared to us that the actions of the chief of the criminal law division had presented General Becton with a fait accompli so that he had no real choice but to appoint as replacements the persons who had been recommended by his subordinates, we would not hesitate to say that he was not “wholly unfettered” in his selection and that Article 25 of the Code had been violated. United States v. Greene, supra. However, the record simply does not support such a conclusion.
C
Appellant’s third challenge to the composition of his court-martial was based on the criteria considered in selecting the replacement members. See United States v. Daigle,
It is well-established that a convening authority may rely on his staff to nominate court members to be considered by him for ultimate appointment to a particular court. United States v. Kemp,
D
On appeal, appellant has expanded his argument that impermissible criteria were utilized by the convening authority in detailing these replacement members. He notes that two female lieutenants who were members of Panel R had been excused and that the staff judge advocate specifically recommended that a female lieutenant on Panel P be appointed as a replacement because a female was a victim of the assault with which Marsh was charged. According to appellate defense counsel, the acceptance of this recommendation by General Becton — presumably for the reason suggested by the staff judge advocate — violated the principle that gender is not a constitutionally рermissible basis for inclusion on a panel (see United States v. Crawford,
Although trial counsel expressly acknowledged in the presence of Marsh and his counsel that the staff judge advocate had advised the convening authority to detail the female member because there was a female victim in this case, defense counsel made no objection to her appointment to the panel on this basis. He did not assert that her inclusion on the panel was constitutionally suspect (cf. Brooks v. Beto,
Because two female members had been excused from Panel R, the panel to which the case had originally been referred for trial, the appointment of one female as a replacement can hardly be considered “packing” the court in the sense of United States v. Hedges, supra. Moreover, this woman had previously been detailed as a court member on another panel, a fact suggesting that the convening authority had already determined her qualifications as a court member in accordance with Article 25(d)(2). Finally, appellant’s counsel neither questioned her on voir dire concerning possible sexual bias against appellant or in favor of the victim; nor did he challenge her for cause on this basis; or even exercise his peremptory challenge in this case. Accordingly, this objection to the court-selection process must be considered waived.
E
The individual attacks on the detailing process in the present case are deemed without merit. Viewed together, we conclude that they do no more than suggest that an attеmpt was made to preserve the nature of the original panel. This is not court-packing, and it does not create an impression which undermines the fairness and integrity of the military-justice system.
II
The second granted issue in this case challenges the military judge’s refusal to strike the trial testimony of the victim and a military police investigator. Appellant asserts that the military judge’s ruling violated the Jencks Act, 18 U.S.C. § 3500. He argues thаt the Government was required by this statute to produce upon defense request the tapes of these witnesses’ previ
It is now well-established that the Jencks Act applies to trials by court-martial. United States v. Jarrie,
The Courts of Military Review, including the court that reviewed appellant’s case, have uniformly held that the Jencks Act applies to taрes of statements made by government witnesses at such a hearing. See United States v. McDaniel,
The final question we must decide is whether the Jencks Act dictates the drastic remedy of striking the testimony of these witnesses because of the Government’s failurе to produce these materials. 18 U.S.C. § 3500(d). The Supreme Court has indicated on several occasions that good-faith loss of such materials may not require the same sanction required for deliberate suppression or for bad-faith destruction of these materials. United States v. Augenblick, supra,
The Government introduced substantial evidence that it lost these tapes despite a good-faith effort on its part to preserve these materials. See generally United States v. Bryant, supra. It established that it was office policy for these tapes to be preserved for trial. It also introduced testimony from the court repоrter and his supervisor as to the particular steps they
The defense’s cross-examination based on these transcripts was effective; and from our examination of the record we are convinced that the trial defense counsel was not significantly encumbered in his cross-examination of government witnesses because of the unavailability of the tapes of the testimоny given at the Article 32 investigation. Accordingly, we conclude that the military judge did not err in refusing to strike the testimony of these government witnesses. United States v. Bastanipour,
Ill
The decision of the United States Army Court of Military Review is affirmed.
Notes
. Neither at the time of this trial, see Art. 25(d)(2), Uniform Code of Military Justice, 10
. While the Handbook was rescinded in 1979 and not replaced prior to this trial, we believe that the description of the functions of the officers referred to in this opinion is still applicable here.
. In the Navy, on the other hand, the prosecutor is obtained from a Legal Service Office and is not supervised by the staff judge advocate who advisеs the convening authority.
. If appellant was unhappy with the extent to which the convening authority had employed seniority in selecting the replacements, he could have improved the situation by peremptorily challenging one of the more senior members. However, he failed to do so.
. On one occasion the trial judge stated that the tapes "evidently” were "stolen.” Later he ruled the tapes were "lost."