United States, Appellee

                                    v.

                  Jonathan L. ALEXANDER, Specialist
                         U.S. Army, Appellant


                              No. 04-0677

                       Crim. App. No. 20000627


       United States Court of Appeals for the Armed Forces

                         Argued March 8, 2005

                        Decided August 4, 2005

BAKER, J., delivered the opinion of the Court, in which CRAWFORD
and ERDMANN, JJ., joined. EFFRON, J., filed a dissenting
opinion, in which GIERKE, C.J., joined. GIERKE, C.J., also filed
a separate dissenting opinion.

                                 Counsel

For Appellant: Captain Danyele M. Jordan (argued); Lieutenant
Colonel Mark Tellitocci and Major Allyson G. Lambert (on
brief).

For Appellee: Captain Edward E. Wiggers (argued); Colonel Steven
T. Salata, Lieutenant Colonel Mark L. Johnson, and Major
Natalie A. Kolb (on brief).



Military Judge:   Kenneth H. Clevenger



       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Alexander, No. 04-0677/AR


     Judge BAKER delivered the decision of the Court.

     A court-martial panel composed of officer and enlisted

members convicted Appellant, contrary to his pleas, of one

specification of rape and one specification of carnal knowledge

as an aider and abettor in violation of Article 120, Uniform Code

of Military Justice (UCMJ), 10 U.S.C. § 920 (2000).   He was

sentenced to a dishonorable discharge, five years of confinement,

forfeiture of all pay and allowances, and reduction to grade E-1.

The convening authority approved the sentence as adjudged, except

for the forfeitures, and the United States Army Court of Criminal

Appeals affirmed.

     We granted review of the following issue:

     WHETHER THE RECORD OF TRIAL FAILS TO SHOW THAT
     APPELLANT MADE A PERSONAL ELECTION OF FORUM, THUS
     CREATING A JURISDICTIONAL ERROR REQUIRING REVERSAL.

For the reasons articulated below, we affirm.

                            BACKGROUND

     During Appellant’s arraignment, the military judge advised

Appellant of his forum rights, and Appellant indicated that he

understood these rights.   Appellant was asked specifically if he

understood the difference between a trial before a military judge

and a trial before members, and he indicated that he did.    The

military judge informed Appellant that he had the right to be

tried by “a court composed of commissioned and/or warrant

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United States v. Alexander, No. 04-0677/AR


officers,” but that upon request, he could alternatively be

“tried by a court composed of at least one-third enlisted

soldiers.”

       The military judge also asked the Appellant to confirm his

desire to defer forum election until a later date and Appellant,

via his civilian defense counsel, reiterated his desire to defer

forum election.         The military judge then granted this deferral,

and informed the Appellant that he would set a due date for final

choice of forum at some time in the future.             The record of trial
                                                                                1
is silent as to whether the military judge ever set a due date.


1
    The following exchange occurred between Appellant and the military judge:

       [Military Judge (MJ)]: Now, Specialist Alexander, you’ve got a right
       to be tried by a court consisting of at least five court members -–
       that is, a court composed of commissioned and/or warrant officers.
       Also, should you request it, you would be tried by a court composed
       of at least one-third enlisted soldiers, but none of these enlisted
       soldiers would come from your same company-sized unit; in your case,
       that would be Delta Troop, 6th Squadron of the 6th Cav[alry].
       You’re further advised that no enlisted soldier on that court-
       martial panel would be junior in rank than you. Do you understand
       everything that I have just explained to you?

       [Accused (ACC)]: Yes, sir.

       MJ: Now, if you’re tried by a court with members, then the members
       would vote by secret, written ballot, and two-thirds of the members
       would have to agree before you could be found guilty of any of these
       offenses. And should you be found guilty of any of these offenses,
       then two-thirds of the members would also have to vote by secret,
       written ballot on a sentence; and that sentence, if it included a
       period of confinement in excess of 10 years, would have to be by a
       three-quarters’ vote, or three-fourths of the members would have to
       agree. Do you understand that?

       ACC: Yes, sir.

       MJ: Now, you also have a right to request a trial by military judge
       alone and, if approved, there would be no court members, and the

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United States v. Alexander, No. 04-0677/AR


     At a subsequent session pursuant to Article 39(a), UCMJ, 10

U.S.C. § 839(a) (2000), the military judge stated in the presence

of Appellant and his counsel, “On Monday, I intend to impanel --

I believe I was told -- an enlisted panel in this case, and we’re

going to go forward with trial.”          The military judge and the

parties discussed various housekeeping matters relating to the

court-martial proceedings.       They also discussed the instructions

that would be read to the panel as well as which members were

going to be empaneled.

     At the next Article 39(a) session, the military judge and

counsel discussed the charges and specifications, and then

shifted to matters involving the panel members.           The military

judge and both parties discussed instructions, the convening

order, the expected number of members, and the voir dire of the

members.   The members were eventually called in and seated, and


     judge alone would determine whether or not you are guilty. And,
     should you be found guilty of any offense, then the judge alone
     would determine an appropriate sentence in your case. So do you
     understand the difference between trial before a court with members
     and trial before a court by military judge alone?

     ACC: Yes, sir.

     MJ: Very well. Defense, I was told at [a Rule for Courts-Martial]
     802 session earlier that you intended to defer your election in that
     regard. Is that still your desire?

     [Civilian Defense Council (CDC)]: Yes, Your Honor.

     MJ: Very well. I will set a due date for final choice of forum to be
     entered by the defense at some subsequent time, but at this point I
     will grant the requested deferral.

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United States v. Alexander, No. 04-0677/AR


voir dire was conducted.   Later that same day, the court-martial

proceeded with the empaneled members.    The record of trial does

not reflect that a forum choice was ever expressly made on the

record or in writing by Appellant or his counsel.    Nor does the

record reflect objection to the forum at which Appellant was

ultimately tried.   Appellant did not raise this issue before the

court below.

                            DISCUSSION

Article 25(c)(1), UCMJ, provides:

     Any enlisted member of an armed force on active duty
     who is not a member of the same unit as the accused is
     eligible to serve on general and special courts-martial
     for the trial of any enlisted member of an armed force
     who may lawfully be brought before such courts for
     trial, but he shall serve as a member of a court only
     if, before the conclusion of a session called by the
     military judge under section 839(a) of this title
     (article 39(a)) prior to trial or, in the absence of
     such a session, before the court is assembled for the
     trial of the accused, the accused personally has
     requested orally on the record or in writing that
     enlisted members serve on it.

10 U.S.C. § 825(c)(1) (2000).

Rule for Courts-Martial (R.C.M.) 903(b)(2) sets forth the

requirements for the election of enlisted members:

     A request for the membership of the court-
     martial to include enlisted persons shall be
     in writing and signed by the accused or shall
     be made orally on the record.

Thus, in plain language both the UCMJ and the R.C.M. require that


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United States v. Alexander, No. 04-0677/AR


an accused personally elect to be tried by a panel including

enlisted members, either orally on the trial record or in

writing.

     The parties agree that the record of trial does not contain

an explicit oral or written election by Appellant to be tried by

a panel of officer and enlisted members.    The parties also agree

that the failure to record Appellant’s forum selection as

prescribed constitutes error.   We agree.   However, the parties

differ as to whether this error is jurisdictional or procedural

in effect.

     Appellant argues that because a failure to adhere to the

forum selection requirements of Article 25(c)(1), amounts to

jurisdictional error, his court-martial was without authority to

hear his case and thus was a nullity.   Consequently, Appellant

argues, he is entitled to immediate relief.   Alternatively, if

this Court determines that the error was procedural in nature,

Appellant argues his substantial rights were materially

prejudiced because he was deprived of his statutory right to

select a forum on the record.   The Government responds that the

omission was procedural in nature.   Considered in context, the

Government argues, the record reflects that Appellant elected to

be tried by a panel with enlisted members.    Thus, Appellant must

demonstrate prejudice under Article 59(a), UCMJ, 10 U.S.C. §

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United States v. Alexander, No. 04-0677/AR


859(a) (2000), to warrant relief, which he has not done, the

Government asserts.

     We review jurisdictional questions de novo.    United States

v. Melanson, 

, 2 (C.A.A.F. 2000).   Questions of

jurisdiction are not subject to waiver.   “[J]urisdiction over the

person, as well as jurisdiction over the subject matter, may not

be the subject of waiver.”   United States v. Garcia, 

,

94, 

, 94 (1954).    A jurisdictional defect goes to the

underlying authority of a court to hear a case.    Thus, a

jurisdictional error impacts the validity of the entire trial and

mandates reversal.    United States v. Perkinson, 

, 402

(C.M.A. 1983).   However, where an error is procedural rather than

jurisdictional in nature we test for material prejudice to a

substantial right to determine whether relief is warranted.

Article 59(a), UCMJ; United States v. Morgan, 

, 122

(C.A.A.F. 2002) (citing United States v. Mayfield, 

,

178 (C.A.A.F. 1996)).

     In United States v. Townes, 

 (C.A.A.F. 2000), the

Court determined that when the record indicates that an accused

personally requested enlisted members, the failure to record the

members selection as prescribed by Article 25 amounted to

procedural error, subject to prejudice review.    Id. at 277.

Specifically, in Townes, we concluded that factors, such as the

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United States v. Alexander, No. 04-0677/AR


accused having been advised of his forum rights on the record,

the accused being present when his counsel noted his desire to be

tried by officer and enlisted members, and the accused testifying

before the empaneled members, gave rise to an inference that the

accused was tried by a panel of his choosing.   Id.   The Court

concluded that “‘the record of trial as a whole makes clear that

the selection was the accused’s choice, and that the error . . .

did not prejudice the substantial rights of the accused.’”   Id.

(quoting United States v. Turner, 

, 350 (C.A.A.F.

1997)).   The Court applied a similar analysis in Morgan,

concluding that when “the record establishes that the selection

of an enlisted forum was appellant’s choice,” the failure to

obtain a written forum request on the record “was a procedural

error, not a jurisdictional defect.”   57 M.J. at 122.   The Court

also noted that while the record did not contain a personal or

written statement of election, “[t]here were many opportunities

to voice an objection to having enlisted members on the panel,

and none was made.”   Id.

     In Townes and Morgan we determined, based on the facts of

those particular cases, that failure to comply with the

provisions of Article 25(c) was nonjurisdictional, and we tested

for prejudice under Article 59(a).   However, our conclusions

rested in part on a determination that there had been

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United States v. Alexander, No. 04-0677/AR


“substantial compliance” with the requirements of Article 25(c).

In Townes, for example, the appellant was present when his

counsel selected the forum on his behalf.    52 M.J. at 277.     And,

in Morgan, the record included a facsimile from trial defense

counsel informing the military judge that “[t]he defense will

request trial before a court-martial panel consisting of at least

one-third enlisted members.”    57 M.J. at 120.   A subsequent

hearing pursuant to United States v. DuBay, 

, 

 (1967), also established that the facsimile reflected

that the accused was advised and “chose to go with the enlisted

panel.”   Morgan at 121.

     In this case, there is no argument that Appellant selected

trial by one-third enlisted members on the record, either in

writing or orally.   He did not.   Thus, this case goes beyond the

facts in Townes or Morgan.     However, our analytic framework is

the same.   We review the record for evidence as to whether the

accused chose the forum by which he was tried.

     The military judge advised Appellant, in the presence of his

counsel, of his rights concerning forum election.    The record

reflects a clear and thorough explanation.    Appellant responded

on the record that he understood his election rights.    Appellant

also indicated, through his counsel, that he wished to defer

election until a later time, and asked the military judge to

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United States v. Alexander, No. 04-0677/AR


permit him to do so.    The record does not indicate that a date

was set for doing so.   However, at a subsequent Article 39(a)

session the military judge stated:    “On Monday, I intend to

impanel -- I believe I was told -- an enlisted panel in this

case, and we’re going to go forward with trial.”    When the

military judge made this statement, both Appellant and his

counsel remained silent.   Defense counsel did not object.

Appellant’s trial proceeded.   Appellant and his counsel

participated in the voir dire of members, including enlisted

members.    And, of course, Appellant and his counsel participated

in Appellant’s contested court-martial with one-third enlisted

members empaneled.   Defense counsel did not seek to revisit the

deferred matter of forum selection.

     In this case, the record reflects that Appellant chose trial

by members with one-third enlisted members.   The root of

Appellant’s claim is in the failure of the military judge to

record that election as prescribed in Article 25.   Appellant does

not argue that he was not personally subject to UCMJ authority at

the time of his offense or at the time of trial.    He does not

challenge the authority of the convening authority to convene a

court-martial, or argue that his court-martial was improperly

convened.   He does not argue that he was not informed of his

right of forum selection, nor does he assert that he did not

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United States v. Alexander, No. 04-0677/AR


exercise his right.   His claim is simply that he did not do so on

the record.

     The right being addressed and protected in Article 25 is the

right of an accused servicemember to select the forum by which he

or she will be tried.    The underlying right is one of forum

selection, not the ministerial nature of its recording.      Of

course, there is no better way to protect the right of selection

than through compliance with the specific and straightforward

recording requirements of Article 25.   Nonetheless, where the

record reflects that the servicemember, in fact, elected the

forum by which he was tried, the error in recording that

selection is procedural and not jurisdictional.   Thus, we will

not order relief absent a showing of prejudice.   Mayfield, 45

M.J. at 178.

     Appellant’s claim of prejudice is integral to his claim of

error.   His essential argument is the same.   He asserts prejudice

on the ground that he was not given the opportunity to personally

elect his forum, and therefore choose among trial by military

judge alone, a panel of officer members, and a panel composed of

one-third enlisted members.   For the reasons stated above, the

record reflects otherwise.    The military judge presented

Appellant with his options.   Appellant acknowledged his options

and deferred election.   The military judge subsequently stated on

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United States v. Alexander, No. 04-0677/AR


the record that an election had been made for a panel including

enlisted members, without comment or correction by counsel or

Appellant.   Appellant proceeded through voir dire and trial with

a panel of one-third enlisted members, without objection.

Indeed, Appellant did not raise the question of selection and

prejudice either in his submissions under R.C.M. 1105 or before

the court below.   As a result, for the same reasons that we find

the error in this case procedural and not jurisdictional, we

conclude that he did not suffer material prejudice to a

substantial right.



                             DECISION

     The decision of the United States Army Court of Criminal

Appeals is affirmed.




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United States v. Alexander, No. 04-0677/AR



     EFFRON, Judge, with whom GIERKE, Chief Judge, joins
(dissenting):

     Under the Uniform Code of Military Justice (UCMJ), a member

of the armed forces does not have the right to trial by jury,

but instead is subject to trial by a court-martial panel.

Article 25, UCMJ, 10 U.S.C. § 825 (2000).    Congress has strictly

regulated the composition of courts-martial.   Although enlisted

members have the opportunity to serve on courts-martial panels,

the UCMJ expressly provides servicemembers with the right to be

tried by a panel that does not include enlisted membership.

Under Article 25(c)(1), a court-martial panel may include

enlisted members “only if . . . the accused personally has

requested orally on the record or in writing that enlisted

members serve on it.”   The selection must be made “before the

court is assembled for the trial.” Id.

     Where the record of trial is ambiguous as to whether a

timely choice was made personally by the accused on the record,

our Court has held that any error in the clarity of the request

is not prejudicial when the record otherwise demonstrates

“substantial compliance.”   United States v. Morgan, 

,

122 (C.A.A.F. 2002).    Morgan concluded that although the record

of trial was ambiguous as to whether an accused had requested

enlisted membership on the panel, a post-trial proceeding
United States v. Alexander, No. 04-0677/AR


“establishe[d] that the selection of an enlisted forum was

appellant’s choice.”    Id.

       In the present case, there has been no such proceeding.

The record reflects that the military judge advised Appellant of

his rights regarding the composition of the court-martial, the

Appellant affirmed that he understood those rights, the military

judge deferred the election at Appellant’s request, and the

military judge stated that he would set a date for the election

in the future.   The record also reflects that the military judge

indicated an intent to empanel a court-martial with enlisted

membership, and that Appellant’s court-martial included enlisted

members on the panel.   The record does not indicate that the

military judge set a date for the Appellant to make a forum

selection, nor does the record contain such an election.   The

record before us establishes, at most, acquiescence, not “an

informed, personal choice of forum” under Morgan.    57 M.J. at

121.

       In the context of the substantial compliance standard,

Morgan demonstrates the critical role a post-trial proceeding

under United States v. DuBay, 

, 

(1967), plays in developing the facts necessary to determine

whether the Appellant made an informed personal selection as to

the composition of the panel.   Before replacing the substantial

compliance standard with a mere acquiescence standard, we should


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United States v. Alexander, No. 04-0677/AR


follow the procedure relied upon in Morgan to determine whether

the composition of the panel reflected Appellant’s affirmative

choice, as mandated by Congress in Article 25(c)(1).   I

respectfully dissent.




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United States v. Alexander, No. 04-0677/AR


        GIERKE, Chief Judge (dissenting):

        I join Judge Effron’s dissent.        I write separately only to

note that this case is distinguishable from Townes1 and Morgan,2

where I joined the majority.          In Townes, the trial defense

counsel stated on the record, in front of the accused, that the

defense requested enlisted membership.3            In Morgan, the detailed

defense counsel submitted a written request for enlisted

membership.4      Also in Morgan, the detailed defense counsel’s

testimony at a post-trial evidentiary hearing confirmed that the

accused personally selected enlisted membership.5            In this case,

there was not substantial compliance, but rather noncompliance

with the requirements of Article 25(c)(1), Uniform Code of

Military Justice.6       In the absence of an evidentiary hearing to

determine whether Appellant, in fact, chose enlisted membership,

this record reflects no more than Appellant’s acquiescence to

the panel composition.         I would remand this case for an

evidentiary hearing, like that held in Morgan, to determine

whether Appellant actually chose enlisted membership.            Excusing

the total abrogation of the requirements of Article 25(c)(1)

renders the congressionally prescribed procedure for selecting

enlisted membership a mere dead letter.            I respectfully dissent.

1
    United States v. Townes, 

 (C.A.A.F. 2000).
2
    United States v. Morgan, 

 (C.A.A.F. 2002).
3
    52 M.J. at 276.
4
    57 M.J. at 120.
5
    Id. at 121.
6
    10 U.S.C. § 825(c)(1).