UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                      Before
                          COOK, GALLAGHER, and HAIGHT
                             Appellate Military Judges

                          UNITED STATES, Appellee
                                       v.
            Private First Class ERIK A. HOLLINGSWORTHMATA
                         United States Army, Appellant

                                  ARMY 20100752

                    Headquarters, Eighth United States Army
                         T. Mark Kulish, Military Judge
                Colonel Jeffrey D. Pedersen, Staff Judge Advocate


For Appellant: Mr. Stephen H. Carpenter, Jr., Esquire (argued); Captain A. Jason
Nef, JA; Mr. Stephen H. Carpenter, Jr., Esquire (on brief); Captain Kristin B.
McGrory, JA.

For Appellee: Captain Sean P. Fitzgibbon, JA (argued); Lieutenant Colonel Amber
J. Roach, JA; Major Katherine S. Gowel, JA; Captain Kenneth W. Borgnino, JA (on
brief).


                                 28 December 2012

                             ----------------------------------
                              OPINION OF THE COURT
                             ----------------------------------

GALLAGHER, Judge:

      A panel composed of officer and enlisted members convicted appellant,
contrary to his pleas, of forcible sodomy in violation of Article 125, Uniform Code
of Military Justice, 10 U.S.C. § 925 (2006) [hereinafter UCMJ]. The panel
sentenced appellant to a dishonorable discharge, confinement for twenty-four
months, and forfeiture of all pay and allowances. The convening authority approved
only so much of the sentence as provides for a bad-conduct discharge, confinement
for twenty-four months, and forfeiture of all pay and allowances. 1 This case is

1
  As noted by the government, the convening authority's action purported to approve
a reduction to the grade of E-1 that was not adjudged. Appellant was not prejudiced
by this error.
HOLLINGSWORTHMATA—ARMY 20100752

before our court for review under Article 66, UCMJ. Pursuant to our review, the
assigned issue 2 merits discussion, but no relief.

                                       FACTS
       During voir dire, the military judge presented the members with standard
questions involving the presumption of innocence and the burden of proof. Defense
counsel, during collective voir dire, asked the following question: “[i]n a court-
martial the accused has the right not to testify, do you believe that an accused who
does not testify is more likely to be guilty than an accused that does testify?” The
members all provided a negative response. Appellant did not testify during the
merits portion of his court-martial. On findings, the defense requested and received
an instruction that the members were not to draw “any inference adverse to the
accused from the fact that he did not testify as a witness. The fact that the accused
has not testified must be disregarded by you.” The military judge also instructed
the defense “has no obligation to present any evidence or to disprove the elements
of the offense.”

       Appellant also did not testify or make an unsworn statement during the
sentencing portion of his court-martial. On sentencing, the military judge again
instructed the members they were not to draw any adverse inference from the “fact
that the accused did not elect to testify in the sentencing proceedings or otherwise
make a statement in the sentencing proceedings.”

       Three weeks after appellant’s court-martial adjourned, Sergeant First Class
(SFC) CD, one of appellant’s panel members, while participating as a witness at an
unrelated court-martial, made a statement which apparently referred to appellant’s
failure to testify at his court-martial. Mr. DK, a defense attorney who heard SFC
CD’s statement, prepared an affidavit. In the affidavit, Mr. DK avers that while
explaining his client’s verdict to the defense witnesses in the waiting room, SFC CD
asked if Mr. DK’s client had testified. According to Mr. DK, SFC CD commented
that he had sat on a panel two weeks ago where the accused did not testify, and
specifically stated, “we felt that if he did not care about his case enough to testify,
why should we?” The next day, while waiting for the sentencing decision, SFC CD
asked if Mr. DK’s client had testified on sentencing and stated that “the accused two
weeks ago when he was a panel member did not testify and the panel felt that was a
sign of guilt.” Mr. DK also stated “[e]ach time SFC CD spoke about his panel
deliberations, he spoke in plural and his statements were unsolicited.”

       Based on the contents of the affidavit, appellant filed a motion to set aside
the findings and sentence and to order a new trial based upon fraud on the court by

2
 [WHETHER] APPELLANT'S CONSTITUTIONAL AND REGULATORY RIGHT
TO A FAIR AND IMPARTIAL PANEL WAS VIOLATED BY THE MISCONDUCT
OF PANEL MEMBERS.


                                           2
HOLLINGSWORTHMATA—ARMY 20100752

the panel members, asserting the members lied to the court during voir dire. A
post-trial Article 39a, UCMJ, session was held. The military judge found the means
and measures cited by the United States Supreme Court in Tanner v. United States,
483 U.S. 107, 127 (1987), to protect the jury system were present in this case,
including voir dire and instructions, both oral and written. The military judge also
found the affidavit did not fit any of the exceptions to the general rule of
prohibition against inquiry into members’ deliberations contained in Military Rule
of Evidence [hereinafter Mil. R. Evid.] 606(b). Accordingly, the military judge
denied the defense motion, ruling that the only evidence with regard to “whether the
members were actually lying to the court” was Mr. DK’s affidavit, and that
consideration of Mr. DK’s affidavit was precluded by Mil. R. Evid. 606(b).

       On appeal, appellant argues the members and/or SFC CD individually were
dishonest in answering voir dire questions or failed to comply with a continuing
duty of candor to the court. He asserts such dishonesty amounts to a fraud upon the
court and entitles appellant to a new trial. The government, meanwhile, argues any
inquiry into this issue is prohibited by Mil. R. Evid. 606(b).

                                        LAW

       “A military judge’s decision to admit or exclude evidence is reviewed for an
abuse of discretion.” United States v. Durbin, 68 M.J. 271, 273 (C.A.A.F. 2010)
(citations omitted). See also United States v. Martinez-Moncivais, 14 F.3d 1030,
1036 (5th Cir. 1994) (stating that the suppression of evidence of juror misconduct
under Federal Rule of Evidence [hereinafter Fed. R. Evid.] 606(b) is reviewed for an
abuse of discretion) (citations omitted).

      Mil. R. Evid. 606(b) states, in pertinent part, as follows:

             Upon an inquiry into the validity of the findings or
             sentence, a member may not testify as to any matter or
             statement occurring during the course of the deliberations
             of the members of the court-martial or, to the effect of
             anything upon the member’s or any other member’s mind
             or emotions as influencing the member to assent to or
             dissent from the findings or sentence or concerning the
             member’s mental process in connection therewith . . . .

Mil. R. Evid. 606(b) recognizes three exceptions to this general rule: “[1] whether
extraneous prejudicial information was improperly brought to the attention of the
members of the court-martial, [2] whether any outside influence was improperly
brought to bear upon any member, or [3] whether there was unlawful command
influence.” Military Rule of Evidence 606(b) also prohibits receipt of an affidavit




                                           3
HOLLINGSWORTHMATA—ARMY 20100752

from a member or “evidence of any statement by the member concerning a matter
about which the member would be precluded from testifying . . . .”

       “[Military Rule of Evidence] 606(b) is taken from Fed.R.Evid. 606(b).
Except for changes to reflect court-martial terminology, Mil.R.Evid. 606(b) is
identical to Fed.R.Evid. 606(b) with one addition: the reference to unlawful
command influence.” United States v. Loving, 41 M.J. 213, 235 (C.A.A.F. 1994).
See also United States v. Straight, 42 M.J. 244, 249 (C.A.A.F. 1995) (citing Mil.
R.Evid. 606(b) analysis at A22–41 (1994 ed.); Loving, 41 M.J. at 235). “The
purpose of this rule is to protect ‘freedom of deliberation,’ protect ‘the stability and
finality of verdicts,’ and protect court members ‘from annoyance and
embarrassment.’” Loving, 41 M.J. at 236 (citing United States v. Bishop, 11 M.J. 7,
9 (C.M.A. 1981)); see also Tanner, 483 U.S. at 124–27.

       Rule for Courts-Martial 923 provides that findings may only be impeached
upon the grounds set forth in Mil. R. Evid. 606(b). United States v. Brooks, 42 M.J.
484, 487 (C.A.A.F. 1995). Panel member affidavits or testimony concerning
deliberations may only be considered to determine if an exception under Mil. R.
Evid. 606(b) is raised. Straight, 42 M.J. at 250; United States v. Combs, 41 M.J.
400, 401 (C.A.A.F. 1995); Loving, 41 M.J. at 238; United States v. Accordino, 20
M.J. 102, 105 (C.M.A. 1985).

       In Loving, our superior court stated “[t]he federal Courts of Appeals have
uniformly refused to consider evidence from jurors indicating that the jury ignored
or misunderstood instructions in criminal cases.” Id. at 236. See also Combs, 41
M.J. at 401 (finding that “even if the court member’s comment was evidence that the
court members may have failed to heed the military judge’s” . . . [instructions,]
“consideration of such evidence was prohibited by Mil.R.Evid. 606(b).”).

       The court in United States v. Kelley, 461 F.3d 817 (6th Cir. 2006), faced a
similar juror comment to the one made in appellant’s case. In Kelley, a juror told a
local newspaper “I was also struck by the fact that neither of the Kelleys testified.
If they were innocent, they would have testified.” Id. at 831. The question before
the court was “whether a juror’s consideration of a defendant’s failure to testify
constitutes a permissible internal influence or an impermissible external or
extraneous influence” falling within the exceptions outlined in Fed. R. Evid. 606(b).
Id. The court agreed with the United States Courts of Appeal for the Third, Fifth,
Eighth, Ninth, Tenth, and Eleventh Circuits and held that because the juror “did not
learn of the Kelleys’ failure to testify through improper channels” or through outside
contact, “a juror’s discussion regarding [appellant’s failure to testify] does not fall
within either [Fed. R. Evid.] 606(b) exception.” Id. at 832. (citations omitted).

       Finally, a new trial due to errors during voir dire is only warranted when “a
party . . . first demonstrate[s] that a juror failed to answer honestly a material



                                            4
HOLLINGSWORTHMATA—ARMY 20100752

question on voir dire, and then further show[s] that a correct response would have
provided a valid basis for a challenge for cause.” McDonough Power Equipment,
Inc. v. Greenwood, 464 U.S. 548, 556 (1984). United States v. Mack, 41 M.J. 51
(C.M.A. 1994), made the McDonough test applicable to military courts-martial. Id.
at 55–56. See also United States v. Albaaj, 65 M.J. 167 (C.A.A.F. 2007); United
States v. Sonego, 61 M.J. 1 (C.A.A.F. 2005).

                                    DISCUSSION

       The statements attributed to SFC CD in Mr. DK’s affidavit constitute
information obtained from a court-martial member about the panel deliberations.
The statements attributed to SFC CD unambiguously reference the feelings of the
panel members collectively at the time of deliberations. As such, it may not be
considered by this or any other court unless “the information fits within one of the
exceptions to Mil.R.Evid. 606(b).” Straight, 42 M.J. at 249. Appellant does not
allege that one of the exceptions identified in M.R.E. 606(b) apply to this case and
we find that none of these exceptions are triggered in this case.

       Appellant argues, in reliance on Sonego, that this is not a case requiring
inquiry into the deliberative process of the members, but instead is a case about
appellant’s right to a fair and impartial court-martial panel. Appellant posits the
members must have lied during voir dire, or failed to abide by a continuing duty of
candor to the court, because they averred to the court they would not hold it against
appellant if he did not testify, but SFC CD’s statements indicate the members did
then use appellant’s silence as evidence of guilt.

       Sonego, however, does nothing to encroach upon the blanket prohibition
contained in Mil. R. Evid. 606(b) against considering evidence of panel
deliberations for anything other than assessing the recognized exceptions. Sonego
relied upon evidence independent of the deliberative process, which is a recognized
means of exploring undisclosed biases. Incompetent evidence, such as that
presented here, may not be used to satisfy the McDonough/Mack test. In Loving, the
court recognized “that the presumption of compliance with the military judge’s
instructions can be rebutted by competent evidence to the contrary. The pivotal
question . . . is whether the affidavits [at issue] are competent evidence.” Loving, 41
M.J. at 235. In this case, no competent evidence has been presented to raise a
colorable claim that any member provided false information at the time of voir dire.
Additionally, no competent evidence raises a colorable claim that at any time prior
to the start of deliberations, SFC CD, or any other member, held a bias against an
accused who fails to testify. Thus, “in the absence of any competent evidence to the
contrary, we hold that the court members followed the military judge's correct
instructions . . . .” Id. at 239.




                                          5
HOLLINGSWORTHMATA—ARMY 20100752

        Repackaging these statements concerning deliberations as a voir dire issue to
circumvent the Mil. R. Evid. 606(b) prohibition has also been considered and
rejected by the federal courts. See United States v. Benally, 546 F.3d 1230, 1236
(10th Cir. 2008) (finding that “allowing juror testimony through the backdoor of a
voir dire challenge risks swallowing [Fed. R. Evid. 606(b)]”); Williams v. Price, 343
F.3d 223, 236 (3d Cir. 2003) (stating that “Tanner implies that the Constitution does
not require the admission of evidence that falls within [Fed.R.Evid.] 606(b)’s
prohibition” and “allowing a juror to testify for the purpose of showing that another
juror lied during voir dire may not be viewed as much different from permitting an
inquiry into the decision-making process itself.”); Marcavage v. Bd. of Trustees of
Temple Univ., 400 F. Supp. 2d 801, 807 (E.D. Pa. 2005) (refusing “to consider
statements made during jury deliberations only as to whether a juror lied during voir
dire” and declining to make an exception to the “categorical prohibition against
testimony on matters and statements occurring during jury deliberations.”); see also
United States v. Snipes, 751 F. Supp. 2d 1279, 1283–85 (M.D. Fla. 2010); Ida v.
United States, 191 F. Supp. 2d 426, 436–39 (S.D.N.Y. 2002). Although what
occurred in the deliberations room may have affected appellant’s right to remain
silent, “[the Court of Appeals for the Armed Forces] declined to adopt a ‘due
process’ exception in Loving, . . . and we likewise decline to do so in appellant’s
case.” Brooks, 42 M.J. at 487.

       The statements attributed to SFC CD concern precisely what Mil. R. Evid.
606(b) prohibits from being received into evidence “[u]pon an inquiry into the
validity of the findings or sentence.” The military judge correctly cited and applied
the law to the facts in this case. The military judge correctly noted the sole evidence
upon which appellant’s argument rests is “from the protected sphere of the member’s
deliberations.” Thus, the military judge did not abuse his discretion in denying
appellant’s motion to set aside the findings and sentence. The military judge also
did not abuse his discretion in denying appellant’s motion to order a new trial.

                                   CONCLUSION

     On consideration of the entire record, the submissions of the parties, and oral
argument, the findings of guilty and the sentence are AFFIRMED.

                                        FOR THE COURT:



                                        JOANNE P. TETREAULT ELDRIDGE
                                        JOANNE
                                        Deputy ClerkP. TETREAULT EL
                                                    of Court
                                        Acting Clerk of Court




                                          6
