On May 24, 2020, the CAAF decided United States v. Bess, a case about racial discrimination in member panel selection. In light of Bess, the CAAF issued a summary disposition on June 24, 2020 remanding United States v. Jeter back to the NMCCA. Below is the summary of the United States v. Jeter opinion from 2019.
Appellant was convicted of sexually assaulting two women. On appeal, the NMCCA considered 11 issues and heard oral argument on two of them. In a unanimous opinion, the NMCCA affirmed his conviction.
I. The Composition of Appellant’s Member Panel Did Not Violate His Equal Protection or Due Process Rights
Appellant, an African-American man, alleged that his constitutional rights were violated because there were no racial minorities on his panel. He argued that Batson extends to the member-selection process and relied on an affidavit claiming that the convening authority systematically excluded racial minorities from selection. However, the Court (1) declined to extend Batson beyond peremptory strikes and (2) was not persuaded by the affidavit, finding it insufficient to establish racial bias.
II. Having Only White, Male Members Does Not Show Actual or Apparent UCI
Appellant claimed that selecting an all-white, all-male panel constituted UCI. The Court disagreed, observing that (1) only seven out of nine members provided information about their races; (2) the convening authority did not know the races of the other two members; (3) there was no evidence that the convening authority knew any of the members personally; and (4) Appellant failed to adduce evidence related to the makeup of the prospective member pool.
III. The Judge Properly Admitted Evidence About Appellant’s Motive and Intent
Appellant argued that the military judge should have excluded sexual assault allegations from three women because they were offered to prove his motive and intent in violation of Hills. But the Court held that Hills does not apply to evidence admitted under MRE 404(b). Accordingly, the military judge did not abuse his discretion because the record showed that a reasonable fact-finder could find by the preponderance of the evidence that Appellant engaged in or attempted the acts in question.
IV. Appellant’s Convictions Were Legally and Factually Sufficient
In both of Appellant’s convictions, the Court found that the evidence against him was strong and proved his guilt beyond a reasonable doubt. As to the first conviction, (1) the victim’s testimony was corroborated by DNA evidence; (2) her behavior did not indicate consent; and (3) he broke into her home. As to the second conviction, (1) Appellant threatened to report her misconduct if she did not have sex with him; and (2) she clearly did not consent based on her behavior during and after the sexual encounter.
V. The Military Judge Did Not Err in Rejecting a Mistake of Fact Instruction
Appellant sought a mistake of fact instruction as to consent. But this instruction is proper only if there is some evidence of an honest and reasonable mistake. Here, Appellant’s mistake was not reasonable because he (1) broke into the first victim’s home in the middle of the night and masturbated over her; and (2) broke into the second victim’s home and woke her up by licking her vagina.
VI. Appellant’s Counsel Was Not Ineffective
Appellant claimed that his trial counsel was ineffective because he should have requested information to support his alibi and introduced the 911 call that misrepresented the color of the shirt he was wearing. Applying Strickland, the Court deferred to his counsel’s tactical decisions and found that the failure to offer this evidence did render the representation constitutionally ineffective.
VIII. All Members Were Unbiased
Appellant challenged the neutrality of one of the members, claiming that he knew one of the witnesses. But the Court did not find bias because the member had minimal interaction with the witness and it was not uncommon for members to know witnesses.
In Bess, the CAAF did not find evidence of intentional racial discrimination in the convening authority’s selection process under the Due Process Clause of the Fifth Amendment because (1) defense counsel did not inquire into the race of the members during voir dire; and (2) the convening authority did not know the race of all of the members during selection. Moreover, the Court did not find UCI because Appellant only presented four instances of all-white panels over the course of a year, which was not enough to show systemic discrimination.
In contrast, the Appellant in Jeter brings his claim under the Due Process and Equal Protection Clauses. Although defense counsel did object to the all-white members during voir dire, the convening authority also did not know the races of all of the members. Additionally, Appellant did not present any evidence of systemic discrimination at trial and, on appeal, only showed two prior all-white panels from the same convening authority. Therefore, in light of Bess, I think the NMCCA will reaffirm their prior decision.
 The Court heard argument on the questions whether (1) removing minority and female members from the panel violated Appellant’s Equal Protection and Due Process rights; and (2) the military judge erred in admitting evidence and instructing the members on Appellant’s motive and intent.
 Judge Hutchinson authored the majority opinion, which was joined by Judges Woodard and Lawrence.
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