          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                        UNITED STATES

                                                    v.

                        Airman First Class JOHN I. RODRIGUEZ
                                United States Air Force

                                         ACM 38080 (rem)

                                           05 March 2014

         Sentence adjudged 18 November 2011 by GCM convened at Dover Air
         Force Base, Delaware. Military Judge: Michael J. Coco.

         Approved Sentence: Bad-conduct discharge, confinement for 6 months,
         and reduction to E-1.

         Appellate Counsel for the Appellant: Major Zaven T. Saroyan.

         Appellate Counsel for the United States: Colonel Don M. Christensen;
         Lieutenant Colonel C. Taylor Smith; Major Rhea A. Lagano; and Gerald R.
         Bruce, Esquire.

                                                 Before

                              ROAN, HARNEY, and MITCHELL
                                 Appellate Military Judges

                                         UPON REMAND

                   This opinion is subject to editorial correction before final release.



MITCHELL, Judge:

       A general court-martial comprised of officer and enlisted members convicted the
appellant, contrary to his pleas, of forcible sodomy with Senior Airman (SrA) DO, in
violation of Article 125, UCMJ, 10 U.S.C. § 925. The court-martial acquitted the
appellant of one specification of aggravated sexual assault and one specification of
wrongful sexual contact against Airman First Class (A1C) KC, in violation of
Article 120, UCMJ, 10 U.S.C. § 920. The adjudged and approved sentence consisted of a
bad-conduct discharge, confinement for 6 months, and reduction to E-1.
       On appeal, the appellant assigns four errors: (1) Trial defense counsel were
ineffective by not sufficiently questioning a panel member about her experience as a
victim of a similar offense and by not challenging her; (2) Trial defense counsel was
ineffective when he conceded, after a litigated court-martial, the appellant’s guilt during
presentencing argument; (3) Trial defense counsel was ineffective when he conceded the
appellant’s guilt in the clemency request; and (4) The military judge abused his discretion
by not sua sponte questioning the same panel member regarding her experience and
dismissing her from the panel.

       On 21 August 2013, we issued a decision denying the appellant relief. United
States v. Rodriguez, ACM 38080 (A.F. Ct. Crim. App. 21 August 2013) (unpub. op.).
The appellant then filed a petition for review with the Court of Appeals for the Armed
Forces. On 13 November 2013, that Court granted the appellant’s petition for review of
the issue of whether the Court of Criminal Appeals panel that reviewed the case was
properly constituted. United States v. Rodriguez, __ M.J. ___, No. 14-0127/AF (Daily
Journal 13 November 2013). In the same order, the Court set aside our decision and
remanded the case for further review and consideration of the panel constitution under
Article 66(c), 10 U.S.C. § 866(c). Id.

      Our decision today reaffirms our earlier decision dated 21 August 2013.

                                       Background

        At the time of trial, the appellant was a 23-year-old Airman First Class with
slightly more than two years of service. The appellant was charged, but acquitted, on two
specifications for offenses against A1C KC: aggravated sexual assault while she was
substantially incapacitated, and wrongful sexual contact, each in violation of Article 120,
UCMJ. The appellant was also charged with offenses against SrA DO: a specification
alleging aggravated sexual assault while she was substantially incapacitated in violation
of Article 120, UCMJ, and a specification alleging forcible sodomy in violation of Article
125, UCMJ. After findings, the military judge dismissed the Article 120 specification for
the offense against SrA DO, as it was duplicative of the same act in the Article 125
charge. During sentencing, trial counsel argued for a dishonorable discharge and three
years of confinement.

        SrA DO and the appellant were friends, worked in the same building, and would
occasionally watch movies together at SrA DO’s residence. In March 2010, she and the
appellant made plans for him to come to her house one night to have some drinks and
watch a movie together. The appellant arrived with vodka and cranberry juice, and they
started watching a movie in her living room. SrA DO had two drinks the appellant made
for her and at some point she fell asleep. When she woke up, the appellant was
performing oral sex on her. She jumped up and yelled at the appellant, who replied, “I’m
sorry, I’m sorry.” SrA DO told the appellant to get out of her house and he left.


                                             2                              ACM 38080 (rem)
       Several months later, SrA DO and the appellant were conversing via Facebook
instant messenger. During the conversation, SrA DO told the appellant he was “not a
trustworthy guy.” The appellant replied that she could say that because of “that one
night.” Later in the conversation, when SrA DO said she had been upset, the appellant
replied, “who wouldnt[,] i took advantage[,] and i was wrong.” The appellant also
wrote, “…listen I know my mistakes and i regret this one and have since that day.”

       The appellant testified at trial. He said he went to SrA DO’s house to make dinner
for her and her son, and then stayed for drinks and a movie. He testified that during the
movie he and SrA DO began to kiss and then it progressed to consensual oral sodomy.

                                Ineffective Assistance of Counsel

       This Court reviews claims of ineffective assistance of counsel de novo. United
States v. Mazza, 67 M.J. 470, 474 (C.A.A.F. 2009). When reviewing such claims, we
follow the two-part test outlined by the United States Supreme Court in Strickland v.
Washington, 466 U.S. 668, 687 (1984). Under Strickland, the appellant has the burden of
demonstrating: (1) a deficiency in counsel’s performance that is “so serious that counsel
was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment;”1 and (2) that the deficient performance prejudiced the defense through
errors “so serious as to deprive the defendant of a fair trial, a trial whose result is
reliable.” Strickland, 466 U.S. at 687.

        The deficiency prong requires the appellant to show his defense counsel’s
performance fell below an objective standard of reasonableness, according to the
prevailing standards of the profession. Id. at 688. The prejudice prong requires the
appellant to show a “reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Id. at 694. In doing so, the
appellant “must surmount a very high hurdle.” United States v. Perez, 64 M.J. 239, 243
(C.A.A.F. 2006) (quoting United States v. Alves, 53 M.J. 286, 289 (C.A.A.F. 2000));
United States v. Smith, 48 M.J. 136, 137 (C.A.A.F. 1998). This is because counsel are
presumed competent in the performance of their representational duties. United States v.
Anderson, 55 M.J. 198, 201 (C.A.A.F. 2001). Thus, judicial scrutiny of a defense
counsel’s performance must be “highly deferential and should not be colored by the
distorting effects of hindsight.” Alves, 53 M.J. at 289 (citing United States v. Moulton,
47 M.J. 227, 229 (C.A.A.F. 1997)).

       To determine whether the presumption of competence has been overcome, our
superior court has set forth a three-part test:

          1. Are appellant’s allegations true; if so, “is there a reasonable explanation
          for counsel’s actions?”

1
    U.S. CONST. amend. VI.


                                                3                               ACM 38080 (rem)
         2. If the allegations are true, did defense counsel’s level of advocacy “fall
         measurably below the performance . . . [ordinarily expected] of fallible
         lawyers?”

         3. If defense counsel was ineffective, is there “a reasonable probability
         that, absent the errors,” there would have been a different result?

United States v. Gooch, 69 M.J. 353, 362 (C.A.A.F. 2011) (quoting United States v. Polk,
32 M.J. 150, 153 (C.M.A. 1991)) (alteration in original).

       “[T]he defense bears the burden of establishing the truth of the factual allegations
that would provide the basis for finding deficient performance.” United States v. Tippit,
65 M.J. 69, 76 (C.A.A.F. 2007) (citing Polk, 32 M.J. at 153). When there is a factual
dispute, appellate courts determine whether further fact-finding is required under United
States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997). If, however, the facts alleged by the
defense would not result in relief under Strickland, the Court may address the claim
without the necessity of resolving the factual dispute. See Ginn, 47 M.J. at 248.

                                     1. Voir Dire and Challenge of MSgt RL

        During voir dire, the military judge asked, “Has anyone or any member of your
family or anyone close to you personally ever been the victim of an offense similar to any
of those charged in this case?” Five court members gave affirmative responses, to
include Master Sergeant (MSgt) RL. During individual voir dire of MSgt RL, both trial
counsel and trial defense counsel asked her follow-up questions. MSgt RL revealed that
she was the victim of a similar crime when she was 16 years old.2 In response to trial
counsel’s question about whether the experience still weighed heavily on her, MSgt RL
replied, “I rarely think about it now.” MSgt RL also distinguished her experience from
the allegations in the case, answering that it did not involve substantial incapacitation or
the use of alcohol or drugs. MSgt RL answered that she was neither more nor less likely
to believe an alleged victim, and that her prior experience would not affect her ability to
be fair and sit in judgment at the court-martial.

         Trial defense counsel asked MSgt RL an open-ended question:

         Q. Why do you feel like despite this traumatic event in your life that you’re
         the right person to sit on this court-martial?



2
  At trial, counsel for each side typically has a copy of the court member data sheets, which presumably contain the
information required by Rule for Courts-Martial (R.C.M.) 912(a), to include date of birth. The data sheets are not in
the record of trial, and therefore this Court does not know when MSgt RL was 16 years old. However, based on
common sense, our familiarity with promotions in the military, and MSgt RL’s statement that she had “had a long
time to recover,” the Court can safely conclude it was at least a decade ago.


                                                         4                                        ACM 38080 (rem)
        A. Well the situation is different, and I was younger then. I’m dealing with
        adults now, and I’m also older, and I’ve had a long time to recover. So I
        don’t really think about it too much. It’s something that’s in the past.

       Trial counsel challenged three members for cause, but did not challenge MSgt RL.
After trial defense counsel did not challenge any member for cause, the military judge
specifically asked the defense if they had any concerns about MSgt RL. Trial defense
counsel replied that they had “considered her.” Trial defense counsel did not challenge
her. Trial counsel and trial defense counsel then used their preemptory challenges on
other members.

       Appellant asserts that his trial defense counsel were ineffective in their voir dire of
MSgt RL, in that they did not ask sufficient questions of MSgt RL to make an informed
decision on whether or not to challenge her, either for cause or for a preemptory
challenge. Additionally, in his affidavit the appellant asserts his trial defense counsel
advised him after their decision that they were trying to keep a certain number of people
on the panel for “percentages.”

       The trial defense counsel provide in their court-ordered affidavits the reasons for
not challenging MSgt RL. They explain they believed the contrast between MSgt RL’s
prior experience as a victim and the allegations in the court-martial would provide a
“contrast that would benefit the defense.” They also state, “Unequivocally, this decision
was based strictly on our assessment of the demeanor of the member and her answers to
our questions,” and, “[W]e chose not [to] challenge MSgt [RL] based largely on her
demeanor and tone as she answered questions during individual voir dire.” Both trial
defense counsel include the fact they did discuss with the appellant the issue of the
“numbers game” or “percentages game,” but that this did not influence their decision.

       This issue can be addressed without the necessity of further fact-finding. See
Ginn, 47 M.J. at 248. It is uncontroverted that the trial defense counsel discussed the
issue of the “numbers game”3 with the appellant. However, the record as a whole
compellingly demonstrates the improbability that this was the sole reason why the trial
defense counsel did not challenge MSgt RL. Even if they chose not to challenge her for
cause, they still had the use of their preemptory challenge. The trial defense counsel
exercised that challenge against a different member. Thus, if the only objective was to


3
  “From time immemorial fledgling judge advocates are taught about the ‘numbers game,’ a feature of criminal
jurisprudence unique to the military justice system because only a two-thirds majority suffices to convict in all but
capital cases. Thus, goes the folklore, a panel of five members optimizes the situation for an accused, because the
necessity to round to the nearest member imposes a correspondingly greater burden of 80 percent (4 of 5 are needed
to convict) on the prosecution. Correspondingly, any number divisible by 3 is optimal for the prosecution because it
means it must get no more than the precise two-thirds needed for a conviction.” United States v. Simoy,
46 M.J. 592, 627 (A.F. Ct. Crim. App. 1996) (Morgan, J., concurring) (rev’d in part on other grounds, 50 M.J. 1
(C.A.A.F. 1998)).


                                                         5                                        ACM 38080 (rem)
obtain a certain number of members on the panel, the trial defense counsel could have
still used their preemptory challenge on MSgt RL.

        The appellant provides a laundry list of additional questions that could have been
asked of MSgt RL about her experience as a victim, to include the identity of the
perpetrator, relation to the perpetrator, whether there were court proceedings, and the
results of those proceedings. They are all questions that could have been asked of MSgt
RL, but are not questions that were required in this case. “[S]trategic choices made after
thorough investigation of law and facts relevant to plausible options are virtually
unchallengeable; and strategic choices made after less than complete investigation are
reasonable precisely to the extent that reasonable professional judgments support the
limitations on investigation.” Wiggins v. Smith, 539 U.S. 510, 521 (2003) (citing
Strickland, 466 U.S. at 690-91).

       The appellant now asserts the voir dire was not thorough enough. We disagree.
Trial defense counsel learned that MSgt RL was the victim of a sexual offense when she
was 16, in a case that did not involve substantial incapacitation, alcohol, or drugs. Her
experience involved a teenager, whereas the allegations concerned adults who either
consented or were unable to consent. The trial defense counsel observed her demeanor
throughout the process. In sum, the trial defense counsel had a thorough investigation of
the relevant information regarding MSgt RL. Given the fact that the appellant testified
and admitted to the underlying sexual acts, but disputed the victims were incapacitated
and were instead willing participants, the defense made a reasonable determination to
keep MSgt RL on the panel.

       The appellant also fails to meet his burden on the second prong of Strickland. It is
difficult for the appellant to argue that he was deprived of a fair trial with reliable results
when he was acquitted of half of the specifications, and the members sentenced him to
one-sixth of the trial counsel’s recommended sentence to confinement along with a less
severe punitive discharge.

                                  2. Sentencing Argument

       Appellant asserts his trial defense counsel conceded his guilt during the sentencing
argument. As the sentencing argument is contained in the record, there is no need for an
additional hearing. See Ginn, 47 M.J. at 248. We find this claim to be without merit.

       During presentencing arguments, trial counsel argued for a sentence of a
dishonorable discharge and three years confinement. Trial defense counsel began his
sentencing argument with:

       Good morning, members. Members, a court-martial is tough. There are
       emotions. Witnesses have to come in. They have to think about things that
       make them uncomfortable. [SrA DO] had to come in and talk about things


                                              6                                ACM 38080 (rem)
      that made her uncomfortable; that were embarrassing to her. There were
      embarrassing things that [the appellant] had to talk about. They’re
      important things, so that you could arrive at the truth. Not just the truth of
      whether or not a crime was committed, but the truth of how you will
      sentence someone – what is the appropriate sentence – because we’re
      sentencing someone faced [sic] on facts, not on just a crime; on the label of
      a crime. It is the aid [sic] of you who will forever know what the facts of
      the case were. People will hear about what [the appellant] was convicted
      of, and nobody will ever know again the facts on which it was based like
      you guys do. And that’s important, because it’s the facts that will get you
      to the appropriate sentence, not just the label of the crime.

      Trial defense counsel went on to argue that a federal conviction is by itself a
stigma, and that when the conviction is for a sexual assault there is an additional stigma.
He continued:

      And your sentence can either help his future or hurt his future. And quite
      frankly, the beginning and the end of a court-martial is the beginning of
      healing for both parties. [SrA DO] has come in and she’s gotten her justice.
      She’s had her day in court. It’s the beginning of closure for both parties.
      Not just for [SrA DO], but also for [the appellant] who’s had these charges
      hanging over his head for some time now. The sentence can set him on the
      right course towards rehabilitation.”

       Trial defense counsel later returned to this theme in arguing that any punitive
discharge was not appropriate as it would only add to the stigmas already placed on the
appellant. He continued with his argument for an appropriate lighter sentence than that
recommended by trial counsel, arguing that a sentence that “crushed” the appellant would
be counter-productive. Trial defense counsel argued against both a punitive discharge
and confinement, and suggested hard labor without confinement as an alternative. The
members sentenced the appellant to a bad-conduct discharge, confinement for 6 months,
and reduction to E-1.

      Our superior court wrote:

      [I]n general, when an accused has consistently denied guilt, a functional
      defense counsel should not concede an accused’s guilt during sentencing,
      not only because this can serve to anger the panel members, but also
      because defense counsel may be able to argue for reconsideration of the
      findings before announcement of the sentence.




                                            7                               ACM 38080 (rem)
United States v. Wean, 45 M.J. 461 (C.A.A.F. 1997).4

        In Wean, the civilian trial defense counsel stated during sentencing argument that
his client had “an illness of the mind [which] compelled him to do these things,” even
though his client had pled not guilty and there was no evidence to support this statement.
Id. at 463 (alteration in original). By contrast, in this case trial defense counsel’s
comments are well within the standards of an effective argument. The appellant
selectively quotes portions of the sentencing argument to imply his counsel conceded his
guilt, but reading the argument in its entirety does not reveal any concession of the nature
found in Wean. Rather, trial defense counsel’s argument was an effort to turn the
members’ attention from their deliberations on findings, and what happened in the past,
to the future of the appellant and how that future would be influenced by their sentence.
While acknowledging the members’ decision on findings, trial defense counsel never
conceded his client was guilty. Rather he used the principles of sentencing in an attempt
to persuade the members that a punitive discharge and confinement were not appropriate,
while hard labor without confinement was more appropriate.

       While trial defense counsel did not receive all that he asked for, the adjudged
sentence was significantly less than what the trial counsel asked for, particularly in light
of the maximum punishment authorized. We find the appellant has failed to meet his
burden on both of the Strickland prongs.

                                           3. Clemency Request

       In clemency, the appellant asked to be released from confinement and to have his
bad-conduct discharge mitigated to an administrative discharge. In his signed
submission, he wrote, “Yes, I messed up, but I am only human and I have done
everything else to the best of my ability. . . . I am truly sorry for my lack of better
judgment . . . .” He also wrote:

        I beg you to not let this one mistake take judgment on my whole life. I
        understand what I’ve done was wrong, but I still want to have a future and I
        feel like this can either make me or break me. The Air Force was my
        biggest treasure and if I had the chance to do it all over again, I would, with
        the exception of the fault I have made.

      Trial defense counsel also wrote a request for clemency on behalf of his client, in
which he stated:


4
  At the time of the Wean trial, members were allowed to reconsider findings of guilty at any time before
announcement of the sentence. United States v. Wean, 45 M.J. 461, 464 n.4 (C.A.A.F. 1997). Currently,
R.C.M. 924 allows members to reconsider findings before they are announced in open court, and only the military
judge sitting alone can reconsider findings after they have been announced, but before announcement of a sentence.
Id. See also Drafter’s Analysis, Manual for Courts-Martial, United States, A21-72 (2012 ed.).


                                                        8                                      ACM 38080 (rem)
       In reviewing this case you will find that immediately after the investigation
       against [the appellant] began and leading up until his trial, [the appellant]
       was an above average performer who exhibited no negative behaviors and
       who had received no negative paperwork during his short time in the Air
       Force. As you can see from his First Sergeant’s letter, [the appellant] is not
       what some may consider the “typical” criminal. . . . I believe you will find
       that [the appellant] has truly learned from his mistakes. . . . This young man
       has so much life and enthusiasm and all he asks is that we do not snuff it all
       out due to this mistake.

       In his court-ordered affidavit, the trial defense counsel explained his reasoning in
using the word “mistake.” It was a word the appellant had included in his written
clemency request, and trial defense counsel employed it to “lessen the sting” and
minimize the offense. He was arguing that the appellant was an above-average performer
who “kept his head high” during the court-martial process, and therefore was someone
who did not deserve a punitive discharge. Trial defense counsel recognized there was no
legal challenge to the court-martial panel’s conviction and “taking a ‘hard line’ and
continuing to litigate the case in clemency” was not likely to be successful, and instead
believed any chance at clemency would be based upon equity. The convening authority
approved the sentence as adjudged.

        The right to effective representation extends to post-trial proceedings. United
States v. Cornett, 47 M.J. 128, 133 (C.A.A.F. 1997). Defense counsel is responsible for
post-trial tactical decisions but should act “after consultation with the client where
feasible.” United States v. MacCulloch, 40 M.J. 236, 239 (C.M.A. 1994). Defense
counsel may not submit matters over the client’s objection. United States v. Hood,
47 M.J. 95, 97 (C.A.A.F. 1997).

        We need not decide if defense counsel was deficient during post-trial
representation if the second prong of Strickland regarding prejudice is not met. United
States v. Saintaude, 61 M.J. 175, 183 (C.A.A.F. 2005). Our superior court has held that
errors in post-trial representation can be tested for prejudice, which will be found if “the
appellant ‘makes some colorable showing of possible prejudice.’” United States v. Lee,
52 M.J. 51, 53 (C.A.A.F. 1999) (quoting United States v. Wheelus, 49 M.J. 283, 289
(C.A.A.F. 1998)).

        Here the affidavits of the appellant and trial defense counsel both indicate the
appellant did not see the letter written by trial defense counsel before it was submitted to
the convening authority. While this may not be the best course of action, the letter by
trial defense counsel used much of the same language as the appellant did in his own
request. Much like trial defense counsel during sentencing argument, the appellant
acknowledged poor decision-making without ever admitting guilt. This ambiguous
accountability enabled the appellant to take some responsibility without admitting to a


                                             9                               ACM 38080 (rem)
crime. The convening authority can decide if the appellant meant a mistake in terms of
continuing to pursue a physical relationship with a married woman, who had expressly
told him she was not interested (which is not necessarily a crime, but can clearly be
described as a mistake), or if the appellant meant some other mistake in terms of his
interactions with SrA DO. The trial defense counsel continued with this theme when he
asked the convening authority to substitute an administrative discharge in lieu of a bad-
conduct discharge and for leniency in an early release of confinement.

       Trial defense counsel referred to the appellant as not “the ‘typical’ criminal.”
While this may be an unusual way for a defense counsel to refer to his client, it is
accurate. A “criminal” is “a person guilty of, or legally convicted of, a crime.”
Webster’s New World Dictionary of American English 328 (3d ed. 1988). While the
appellant disputes he is guilty of the offense, he was legally convicted of the offense.
The overall point of the trial defense counsel’s paragraph is the appellant was an above-
average performer at work who continued to do well even while pending court-martial.
Additionally, trial defense counsel was aiming for the point not to judge the appellant
based on the one offense he was convicted of, but instead to view him as a young man
with great potential as reflected in the clemency letters. Beyond that, the clemency
request from his attorney echoed the statements the appellant chose to submit to the
convening authority. We find the appellant has failed to reach the low threshold of a
colorable showing of possible prejudice.

            4. Military Judge’s Decision Not to Sua Sponte Excuse MSgt RL

       After both trial counsel and trial defense counsel used their preemptory challenges
on other members, MSgt RL remained on the panel. The military judge did not sua
sponte excuse MSgt RL or any other member.

      This Court has previously ruled:

      Failure to make a challenge for cause for a ground listed under
      R.C.M. 912(f)(1) or any other ground is waived if the party knew of the
      ground for challenge and failed to raise it in a timely manner.
      R.C.M. 912(f)(4). If counsel fail to make a challenge for cause, the military
      judge may, in the interest of justice, excuse a member against whom a
      challenge for cause would lie. Id. However, this provision is permissive in
      nature and the military judge is not required to excuse such members. A
      military judge is not required to second guess the tactical decision of a
      counsel not to raise a challenge for cause when counsel are obviously aware
      that grounds exist for such challenge.

United States v. Davis, 29 M.J. 1004, 1007 (A.F.C.M.R. 1990), aff’d, 33 M.J. 13 (C.M.A.
1991); United States v. Lopez, 37 M.J. 702, 705 (A.C.M.R. 1993).



                                            10                             ACM 38080 (rem)
       Trial defense counsel were clearly aware of the issue of MSgt RL’s experience of
being a victim of a similar offense, yet they chose not to challenge her for cause, and
again chose not to challenge her for cause after the military judge specifically mentioned
her. They chose to exercise their preemptory challenge on another member. The
appellant has unequivocally waived this issue.

       Without addressing the waiver language in R.C.M. 912(f)(4), and without
explicitly overturning Davis and Lopez, our superior court has determined that a trial
judge’s decision whether or not to excuse a member for cause sua sponte is reviewed for
an abuse of discretion. United States v. Strand, 59 M.J. 455, 458 (C.A.A.F. 2004). Our
superior court reasoned that regardless of any tactical reasons by the trial defense counsel
for not challenging a member, “the question remains whether based on the totality of the
circumstances . . . the military judge should have dismissed [the court member] sua
sponte in order to ensure public confidence in the legality, fairness, and impartiality of
Appellant’s court-martial.” Id. at 459 (citing United States v. Velez, 48 M.J. 220, 225
(C.A.A.F. 1998)).

       There is no per se disqualification when an individual court member, or someone
close to that member, either a family member or friend, has been the victim of a similar
crime as the one charged at the court-martial. See United States v. Calimata,
48 M.J. 917, 923 (A.F. Ct. Crim. App. 1998) (court member raped as a 15-year-old not
disqualified in indecent assault case); United States v. Terry, 64 M.J. 295, 304 (C.A.A.F.
2007) (member who indicated his wife had been the victim of sexual assault by stepfather
not disqualified in rape case, but member with close relationship to another rape victim
was disqualified); United States v. Brown, 34 M.J. 105 (C.M.A. 1992) (father of a victim
of homosexual assault not disqualified in a consensual sodomy case).

       MSgt RL distinguished on a factual basis why her prior experience was different
than the charges on the flyer she reviewed. She clearly articulated why her prior
experience as the victim of a sexual offense would not influence her decision in the
current court-martial. Both the military judge and the trial defense counsel were able to
observe her demeanor in answering the questions posed to her throughout voir dire.
Based on the totality of the circumstances, we find the trial judge did not abuse his
discretion by not sua sponte excusing MSgt RL.

                                                  Conclusion

       The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred.5 Articles 59(a)
5
  Though not raised as an issue on appeal, we note the overall delay of more than 540 days between the time of
docketing and the first opinion by this Court is facially unreasonable. United States v. Moreno, 63 M.J. 129, 142
(C.A.A.F. 2006). Article 66(c), UCMJ, 10 U.S.C. § 866(c) empowers the service courts to grant sentence relief for
excessive post-trial delay without the showing of actual prejudice required by Article 59(a), UCMJ. United States v.
Tardif, 57 M.J. 219, 225 (C.A.A.F. 2002). Having considered the totality of the circumstances and the entire record,


                                                        11                                       ACM 38080 (rem)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c); United States v. Reed, 54 M.J. 37, 41
(C.A.A.F. 2000). Accordingly, the approved findings and sentence are

                                                  AFFIRMED.



                  FOR THE COURT


                  STEVEN LUCAS
                  Clerk of the Court




we find the appellate delay in this case was harmless beyond a reasonable doubt. Moreno, 63 M.J. at 135-36
(reviewing claims of post-trial and appellate delay using the four-factor analysis laid out in Barker v. Wingo,
407 U.S. 514, 530 (1972)). Furthermore, given the totality of the circumstances and the entire record, we conclude
that sentence relief is not justified. United States v. Harvey, 64 M.J. 13, 24 (C.A.A.F. 2006); Tardif, 57 M.J. at 224.


                                                          12                                       ACM 38080 (rem)
