       This opinion is subject to revision before publication




         UNITED STATES COURT OF APPEALS
                   FOR THE    ARMED FORCES
                         _______________

                       UNITED STATES
                           Appellee
                                 v.
    Matthew A. ROGERS, Electrician’s Mate Third Class
            United States Coast Guard, Appellant
                          No. 16-0006
                       Crim. App. No. 1391
         Argued March 15, 2016—Decided May 16, 2016
                Military Judge: Christine N. Cutter
    For Appellant: Lieutenant Philip A. Jones (argued); Major
    Brian Magee, USMC.
    For Appellee: Lieutenant Lars T. Okmark (argued); Lieu-
    tenant Tereza Z. Ohley and Stephen P. McCleary, Esq. (on
    brief).
    Chief Judge ERDMANN delivered the opinion of the
    court, in which Judges RYAN and OHLSON, and Chief
    Judge WHITNEY, joined. Judge STUCKY filed a sepa-
    rate opinion concurring in the result.
                      _______________

   Chief Judge ERDMANN delivered the opinion of the
court.1
    Contrary to his pleas, Coast Guard Electrician’s Mate
Third Class Matthew A. Rogers was convicted by a panel sit-
ting as a general court-martial of, inter alia, two specifica-
tions of committing sexual assault, in violation of Article
120, UCMJ, 10 U.S.C. § 920 (2012).2 Rogers was sentenced

1 Chief Judge Frank D. Whitney, United States District Court for
the Western District of North Carolina, sat by designation pursu-
ant to Article 142(f), Uniform Code of Military Justice (UCMJ),
10 U.S.C. § 942(f) (2012).
2 Rogers was also convicted of one specification of conspiracy to
obstruct justice, one specification of making a false official state-
ment, one specification of improper use of a military identification
card, one specification of violating 18 U.S.C. § 499, and three spec-
               United States v. Rogers, No. 16-0006/CG
                        Opinion of the Court

to a bad-conduct discharge, ten years of confinement, forfei-
ture of all pay and allowances, and a reduction to E-1. The
convening authority approved the sentence as adjudged. On
appeal, the CCA set aside several charges on grounds unre-
lated to the issue before this court and affirmed the remain-
ing findings and the sentence.
   The core of the implied bias test “is the consideration of
the public’s perception of fairness in having a particular
member as part of the court-martial panel.” United States v.
Peters, 74 M.J. 31, 34 (C.A.A.F. 2015), reconsideration de-
nied, 74 M.J. 355 (C.A.A.F. 2015). We granted review in this
case to determine whether the military judge abused her
discretion when she denied a defense challenge to Com-
mander (CDR) K for implied bias.3
   We hold that CDR K’s uncorrected misunderstanding of
a relevant legal issue would cause an objective observer to
have substantial doubt about the fairness of Rogers’ court-
martial panel and that the military judge erred in denying
the defense’s challenge to CDR K. We therefore reverse the
decision of the United States Coast Guard Court of Criminal
Appeals (CCA) and the military judge.4
                              BACKGROUND
   Rogers was charged with sexually assaulting M.C. while
she was incapable of consenting to a sexual act due to im-
pairment by an intoxicant, a condition that was either
known or reasonably should have been known to Rogers.
During the members selection process, the military judge
conducted general voir dire of all potential members. One of
the questions posed by the military judge was, “If my in-


ifications of obstruction of justice, in violation of Articles 81, 107,
and 134, UCMJ, 10 U.S.C. §§ 881, 907, 934 (2012).
3   We granted review of the following issue:
          Whether the military judge erred in denying the implied bias
          challenge against CDR K in light of her various professional
          and personal experiences with sexual assault.
4 As we find that CDR K’s uncorrected misunderstanding of the
law to be dispositive, we need not address Rogers’ challenges
based on her personal and professional experiences with sexual
assault issues.



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            United States v. Rogers, No. 16-0006/CG
                     Opinion of the Court

struction[s] on the law are different from what you believe
the law is or should be … will you be able to set aside your
own personal beliefs and follow the instructions that I give
you?” All of the members answered in the affirmative. The
members also agreed to follow the instructions that Rogers
was presumed innocent until proven guilty beyond a reason-
able doubt and that the burden of proving Rogers’ guilt rest-
ed with the government.
    At the close of general voir dire, CDR K was called back
for individual voir dire. In response to defense counsel’s
questions, CDR K asserted her understanding of the law as
to when an intoxicated person could give consent. CDR K
stated that if someone was too drunk to remember that they
had sex, then they were too drunk to have consented to hav-
ing sex. CDR K indicated that her understanding of this law
came from the training provided by the Coast Guard. CDR K
noted, however, that “[i]f the law told me [otherwise] … I’d
follow the law.” CDR K continued, stating that it “would
have to be proven to [her]” that “someone was so drunk that
they can’t remember anything … [but] then [are] also able to
give consent.”
   At the close of individual voir dire, the military judge
placed the following standards for challenges for cause on
the record:
          The following applies to all my rulings on chal-
      lenges for cause. R.C.M. 912 encompasses challeng-
      es based on both actual bias and implied bias, even
      if counsel do not specifically use these terms. The
      test for actual bias is whether the member’s bias
      will not yield to the evidence presented and the
      judge’s instructions. The existence of actual bias is
      a question of fact. Accordingly, I must determine
      whether it is present in a prospective member.
         Implied bias exists when, despite a credible dis-
      claimer, most people in the same position as the
      court member would be prejudiced.
          In determining whether implied bias is present,
      I look at the totality of the circumstances. Implied
      bias is viewed objectively through the eyes of the
      public. Implied bias exists if the objective observer
      would have substantial doubt about the fairness of
      the accused’s court-martial panel.



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            United States v. Rogers, No. 16-0006/CG
                     Opinion of the Court

         In close cases, military judges are enjoined to
      liberally grant defense challenges for cause. The
      liberal grant mandate does not apply to govern-
      ment challenges for cause.
   Along with challenges to other members, the defense
challenged CDR K for actual and implied bias. The military
judge denied the challenge, ruling:
          I find that there is no actual bias. The member
      clearly stated her willingness to yield to the evi-
      dence and follow my directions.
          As to implied bias, would there be a substantial
      doubt as to the fairness or impartiality, I believe
      that her entire statements, taken in context, would
      not leave a reasonable member of the public, doubt
      as to the fairness of her impartiality. I listened to
      her entire answers, also from both counsel. She had
      every opportunity to say she would not consider my
      instruction, especially based on alcohol consump-
      tion. She did not state that. I believe that she
      would be a [sic] impartial and fair member, so the
      challenge for cause is denied.
   As the senior ranking member, CDR K was the presi-
dent of the panel.
    During the members’ deliberations, CDR K forwarded a
question to the military judge asking, “What is the legal def-
inition of ‘competent?’” In response, the military judge in-
structed the members that, “[t]here is no further legal defi-
nition of the word ‘competent’” and that they must “rely on
[their] understanding of the common definition of the word.”
                           ARGUMENTS
    Rogers argues that the military judge should have grant-
ed the defense challenge based on CDR K’s understanding of
an intoxicated person’s ability to give consent, because CDR
K believed “that if you are so drunk that you can’t remember
giving consent, then you are too drunk to give consent.” Rog-
ers asserts this misunderstanding of the law was never cor-
rected by the military judge, even when CDR K asked for the
definition of “competent” during deliberations. Rogers also
argues that CDR K’s statements that it “would have to be
proven to me” that “someone was so drunk they can’t re-
member anything … [but] then [are] also able to give con-



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            United States v. Rogers, No. 16-0006/CG
                     Opinion of the Court

sent,” effectively shifted the burden of proof on that issue
from the government to the defense. Rogers argues that, be-
cause of these erroneous beliefs, CDR K’s presence on the
panel created a high risk that the public would not believe
he had received a fair trial.
    The government responds that “[a]lthough [CDR K’s]
statements are not entirely correct, she [did] indicate a will-
ingness to follow the law and … recogni[zed] that what she
knew came from her understanding of the training she re-
ceived.” The government further contends that “[o]nce alert-
ed to the fact that she was mistaken, CDR K unequivocally
stated that she would be able to follow the instructions given
by the military judge.”
                     STANDARDS OF REVIEW
    “This Court’s standard of review on a challenge for cause
premised on implied bias is less deferential than abuse of
discretion, but more deferential than de novo review.” Unit-
ed States v. Bagstad, 68 M.J. 460, 462 (C.A.A.F. 2010) (in-
ternal quotation marks omitted) (citations omitted). Under
this standard, “[w]e do not expect record dissertations but,
rather, a clear signal that the military judge applied the
right law.” United States v. Downing, 56 M.J. 419, 422
(C.A.A.F. 2002). Indeed, “where the military judge places on
the record his analysis and application of the law to the
facts, deference is surely warranted.” Id. As we have previ-
ously made clear, however, “[w]e will afford a military judge
less deference if an analysis of the implied bias challenge on
the record is not provided.” Peters, 74 M.J. at 34. In cases
where less deference is accorded, the analysis logically
moves more towards a de novo standard of review.
   The military judge appropriately set forth the correct
standard for both actual and implied bias. Her analysis of
the implied bias claim initially consisted of a conclusory
statement that CDR K’s responses “would not leave a rea-
sonable member of the public [in] doubt as to the fairness of
her impartiality.” In support of this conclusion, the military
judge noted that she had listened to CDR K’s answers and
that CDR K “had every opportunity to say she would not
consider my instruction, especially based on the alcohol con-
sumption.”



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               United States v. Rogers, No. 16-0006/CG
                        Opinion of the Court

    That analysis, however, reflects an actual bias analysis
which involves a member’s willingness to yield to the evi-
dence and follow the judge’s directions. Further, it has never
been incumbent upon a member to sua sponte assert that he
or she would not consider a military judge’s instruction and
failure of a member to do so does not provide positive sup-
port for a finding that the member is fair or impartial. Final-
ly, the military judge stated that CDR K “would be a [sic]
impartial and fair member, so the challenge for cause is de-
nied.” This again goes to a challenge for actual bias rather
than applying the “public perception” standard for implied
bias. As the military judge did not perform an implied bias
analysis on the record, our review of her analysis will move
more toward a de novo standard of review.
                              DISCUSSION
    Rule for Courts-Martial (R.C.M.) 912(f)(1)(N) sets forth
the basis for an implied bias challenge. Peters, 74 M.J. at 34.
“The focus of this rule is on the perception or appearance of
fairness of the military justice system.” United States v.
Dale, 42 M.J. 384, 386 (C.A.A.F. 1995). “While actual bias is
reviewed through the eyes of the military judge or the court
members, implied bias is reviewed under an objective stand-
ard, viewed through the eyes of the public.” United States v.
Wiesen, 56 M.J. 172, 174 (C.A.A.F. 2001). “In reaching a de-
termination of whether there is implied bias … the totality
of the circumstances should be considered.” Peters, 74 M.J.
at 34.
    In the present case, M.C. testified that, after a night of
heavy drinking, she could not remember meeting or having
sex with Rogers. As Rogers’ defense was that the sexual con-
tact was consensual, a fundamental question at trial was
whether M.C. was capable of consenting to the sexual acts,
despite being “blacked out.” Under these facts, the members’
understanding of the law on intoxication and consent was
critical. However, as CDR K stated in voir dire, it was her
belief that if someone was too drunk to remember that they
had sex, then they were too drunk to consent to having sex.5

5   See Article 120(g)(8), UCMJ, which provides:
            (A) The term “consent” means a freely given
        agreement to the conduct at issue by a competent


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            United States v. Rogers, No. 16-0006/CG
                     Opinion of the Court

Moreover, CDR K told the defense during voir dire that
“[y]ou’d have to work hard to make me believe that someone
was so drunk that they can’t remember anything about the
evening, that they were then also able to give consent….
That would have to be proven to me.” These statements
demonstrate a misunderstanding of the law and infer an
improper burden shift from the government to the defense.
   Although CDR K agreed she would follow the law as in-
structed by the military judge, she was never instructed or
corrected by the military judge on those points. The follow-
ing exchange occurred when she was questioned by defense
counsel during individual voir dire:
      Q: I asked this question on general voir dire, and I
      think you answered affirmatively, but do you think
      it’s possible for someone to have consensual sex and
      then just be so intoxicated that they can’t remem-
      ber?
      A: My understanding is that if you are so drunk
      that you can’t remember giving consent, then you
      are too drunk to give consent. That’s my under-
      standing.
      Q: And where does that understanding come from?
      A: That’s what our training says. That’s what the
      Coast Guard teaches us in our sexual assault class.
      Q: Would it be hard for you to, I guess, change that
      perspective, or believe another perspective on that?
      A: If the law told me that someone could give con-
      sent when there were severely intoxicated, I would,
      you know, I’d follow the law.
      Q: But your training and your common sense may-
      be suggests otherwise?


     person….

         (B) A sleeping, unconscious, or incompetent person
      cannot consent….

          (C) Lack of consent may be inferred based on the
      circumstances of the offense. All the surrounding cir-
      cumstances are to be considered in determining wheth-
      er a person gave consent.

Emphasis added.


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            United States v. Rogers, No. 16-0006/CG
                     Opinion of the Court

      A: My understanding of how the law, as written
      right now, suggests otherwise.
      Q: So your belief is that the law says that if some-
      body is so drunk that they can’t remember it, that
      means that they weren’t able to give consent?
      A: My understanding is, if the person is so drunk
      that they are legally, you know, that they are intoxi-
      cated enough to not be able to give consent, then --
      there is a line that says this person is too intoxicated
      to give consent.
      … You’d have to work hard to make me believe that
      someone was so drunk they can’t remember any-
      thing about the evening, that they were then also
      able to give consent. I would have to be -- That
      would have to be proven to me.
Emphasis added.
   Trial counsel subsequently followed up on that line of
questioning:
      Q: You mentioned your understanding of the law
      regarding substantial incapacitation, or incapacita-
      tion to the point where one cannot consent.
           Are you able to disregard what you believe now,
      if the judge instructs you otherwise?
      A: Yes
      Q: And to follow whatever law the judge --
      A: Correct
Emphasis added.
    Despite CDR K’s strongly held opinion that it was not
possible for an intoxicated person to give consent to sexual
activity under these circumstances, she testified that she
could change her mind if so instructed by the military judge.
However, the military judge never issued a curative instruc-
tion on this issue at any point in the trial. Further, when
CDR K forwarded a question to the military judge asking for
the definition of “competent,” the military judge instructed
the members that there was no further definition available
and advised the members to “rely on [their] understanding
of the common definition of the word.” Not only did the mili-
tary judge not instruct CDR K to disregard her personally
held belief, this response effectively endorsed her erroneous



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            United States v. Rogers, No. 16-0006/CG
                     Opinion of the Court

understanding, both as to whether an intoxicated person can
give consent and as to which party had the burden of proof
on that issue. As such, under the totality of circumstances of
this case, an objective member the public would have sub-
stantial doubt about the fairness of having CDR K sit as a
member of Rogers’ court-martial panel.
                            DECISION
   The decision of the United States Coast Guard Court of
Criminal Appeals regarding the challenge of CDR K is re-
versed and the findings and sentence affirmed by that court
are set aside. A rehearing is authorized.




                              9
            United States v. Rogers, No. 16-0006/CG


   Judge STUCKY, concurring in the result.
    The majority produces the right outcome, but with the
wrong means. In a clear case of actual bias, it relies on the
theory of implied bias to find error in the military judge’s
failure to exclude panel member CDR K for cause.

    At trial, the challenge against CDR K was based on both
actual and implied bias. The CCA likewise considered both
in rendering its decision. United States v. Rogers, No. 1391,
slip op. at 2-6 (C.G. Ct. Crim. App. July 8, 2015). When the
case reached this court, the issue was recast to be solely one
of implied bias—although both theories were mentioned in
oral argument. In this posture, it is understandable why the
majority relied on implied bias in its decision. I simply disa-
gree.
    In this case, CDR K stated that her views of the law—
that an individual cannot consent to sexual activity if intoxi-
cated and that it “would have to be proven to [her]” that
someone who lacked memories of a sexual encounter could
have consented—would yield to the military judge’s instruc-
tions if the two were incompatible. And CDR K’s under-
standing of the law of consent was certainly incompatible
with its actual construction. But the military judge never
provided an instruction that would divest CDR K of her er-
roneous views.
    Although the presence of actual bias “rests heavily on the
sincerity of an individual’s statement that he or she can re-
main impartial,” United States v. Nash, 71 M.J. 83, 88
(2012), the absence of any curative instruction on the part of
the military judge rendered CDR K’s assertion in this regard
worthless. Based on her statements on the law of consent
and the facts of the case—an alleged sexual offense perpe-
trated against an intoxicated individual—CDR K essentially
“formed or expressed a definite opinion as to the guilt or in-
nocence of the accused as to [the] offense charged.” Rule for
Courts-Martial (R.C.M.) 912(f)(1)(M). This expression
evinced a “personal bias which [did] not yield to the military
judge’s instructions and the evidence presented at trial” be-
cause no pertinent instructions were given, Nash, 71 M.J. at
88; a clear case of actual bias. Accordingly, I agree with the
majority’s ultimate conclusion that the military judge erred
           United States v. Rogers, No. 16-0006/CG
           Judge STUCKY, concurring in the result


in refusing to exclude CDR K from the panel for cause, but
disagree with the reasoning it uses to arrive at this result.




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