UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                           Before
                           TOZZI, CAMPANELLA, and CELTNIEKS
                                  Appellate Military Judges

                              UNITED STATES, Appellee
                                           v.
                            Sergeant WILLIAM D. RECORD
                             United States Army, Appellant

                                      ARMY 20130721

          Headquarters, United States Army Cadet Command and Fort Knox
              Gregory R. Bockin, Military Judge (arraignment & trial)
               Steven E. Walburn, Military Judge (motions hearing)
              Colonel Christopher T. Fredrikson, Staff Judge Advocate


For Appellant: Lieutenant Colonel Jonathan F. Potter, JA; Major Amy E.
Nieman, JA; Captain Patrick J. Scudieri, JA (on brief)

For Appellee: Colonel John P. Carrell, JA; Major A.G. Courie III, JA; Major
John K. Choike, JA; Captain Jihan Walker, JA (on brief)


                                       31 July 2015

                             ----------------------------------
                                MEMORANDUM OPINION
                             ----------------------------------

 This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

CAMPANELLA, Judge:

       An enlisted panel sitting as a general court-martial convicted appellant,
contrary to his pleas, of aggravated sexual assault of a child who had attained
the age of twelve years old but not sixteen years old, of aggravated sexual
assault by causing bodily harm, and two specifications of indecent acts, in
violation of Article 120 Uniform Code of Military Justice, 10 U.S.C. §920
(2006) [hereinafter UCMJ]. The panel sentenced appellant to a dishonorable
discharge, confinement for six years, reduction to the grade of E-1, and a
reprimand. The convening authority approved the sentence as adjudged.

      This case is before us for review pursuant to Article 66, UCMJ.
Appellant raises six assignments of error to this court and raises matters
RECORD — ARMY 20130721

pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). Three of the
assigned errors warrant discussion but no relief. We find the matters raised
pursuant to Grostefon are without merit.

                                BACKGROUND

       Appellant began sexually grooming his fifteen-year-old step-daughter,
WR, to engage in sexual acts with him by repeatedly asking her to undress to
demonstrate her “trust” in him. Eventually, WR capitulated and did as appellant
requested. WR’s relenting to appellant’s request began an escalating period of
sexual activity during which appellant inserted his thumb into WR’s mouth to
teach her how to perform fellatio, digitally penetrated her vagina, and inserted
his penis into her vagina. Eventually, WR told a high school classmate about
her step-father’s behavior and the disclosure was investigated.

       Appellant chose to be tried by an enlisted panel. Before trial, panel
members completed a questionnaire which included several questions on sexual
assault training and investigations, recent senior leadership comments related to
sexual assault, and media reporting concerning sexual assault.

       At trial, defense counsel requested individual voir dire of a potential
panel member, Colonel (COL) MS, based on his written responses to the
questionnaire. Colonel MS wrote: “I admit I may feel conflicted to vote not
guilty based on some of the media messages – I would just look really hard at
the evidence to ensure before I voted ‘not guilty’ that I was sure the individual
was not guilty.” 1

       During individual voir dire, COL MS explained that the comments from
leadership and the media led him to believe that sexual assault was more
prevalent or tolerated in the military but that it was not consistent with his
personal experience. Colonel MS also specifically addressed his written
response: “I honestly think that I . . . would really assess if I've been somewhat
naive in my experience in the Army for the last [twenty-five] years and maybe
it's more prevalent than . . . I have been led to believe.” 2

      Defense challenged COL MS for cause and argued that regardless of his
responses during individual voir dire, his written response on the questionnaire
demonstrated that he would improperly shift the burden of proof to the defendant to

1
 Colonel MS was responding to the question: “Would you feel conflicted to vote
‘not guilty’ based solely on messages you may have heard in the media?”
2
  Colonel MS also wrote in his questionnaire: “[The comments from political
leaders in Washington] even made me rethink allowing my daughter to enter the
military despite my own service and my son currently serving.”


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prove he was not guilty. The government opposed defense’s challenge for cause and
argued COL MS’s verbal responses demonstrated he could nonetheless be fair and
impartial in appellant’s case, despite his written responses.

       After significant back-and-forth with counsel on the issue, the military judge
denied defense’s challenge for cause against COL MS. At the conclusion of voir
dire, defense used their peremptory challenge on a different panel member. As a
result, COL MS was empaneled and served as the president. After voir dire and
challenges, the panel consisted of five officers and three enlisted members.

       The victim, WR, was the first government witness to testify on the merits.
After providing a lengthy emotional narrative, WR became physically ill in
response to defense counsel’s questions related to the appearance of appellant’s
penis. WR leaned over her knees and began gagging and coughing as though she
was vomiting. The military judge recessed the court to allow WR to regain her
composure.

       During the recess, Sergeant Major (SGM) LH, approached COL MS and
informed him that a memory she suppressed for a decade was brought to life during
the victim’s testimony. Sergeant Major LH was upset and shared what she
remembered with COL MS outside the ear shot of the remainder of the panel. When
the panel returned to the courtroom, COL MS brought the disclosure to the attention
of the court through a note. 3

       After the military judge and both counsel reviewed the note, the trial counsel
remarked that if SGM LH was dismissed, there would no longer be a quorum of at
least one-third enlisted members. The court recessed for the evening and
reconvened the following afternoon.

      During the recess that evening, the military judge conducted a Rule for
Courts-Martial [hereinafter R.C.M.] 802 conference where he discussed with counsel
what happens if the panel is reduced below a one-third enlisted quorum and the need
to have additional members standing by. The next day, the military judge conducted
a second R.C.M. 802 conference with counsel to discuss the voir dire procedures
that would be followed to address the issue raised by SGM LH.

3
    Colonel MS’s note to the Court read:

               During the last comfort break, [SGM LH] informed me
               that this testimony resurfaced an incident from her past
               that she had apparently suppressed. The incident involved
               her daughter being molested on an Army installation. She
               informed me that it does not affect her impartiality, but
               she wanted to be honest about it now that she remembered
               the incident.


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       During voir dire, SGM LH stated she remembered an incident from ten years
prior in which her eleven-year-old daughter was made to perform oral sex on an
eleven-year-old dependent boy who lived in their building while stationed in Korea.
As a result of this incident, the boy and his family left Korea and SGM LH and her
daughter underwent psychological counseling for three months and pastoral
counseling for a year. Sergeant Major LH asserted when she was re-questioned that
she could still be impartial in appellant’s case despite her recollection. Next, COL
MS was individually voir dired and stated that SGM LH’s disclosure would not
affect his ability to be fair and impartial in appellant’s case.

       The military judge asked counsel if they had challenges for cause. Initially,
neither counsel had a challenge for COL MS. The military judge granted the
government’s unopposed challenge for cause against SGM LH. This resulted in the
panel being reduced below the one-third enlisted requirement needed to maintain a
quorum.

       The government then attempted to use their unused peremptory challenge to
remove COL MS to re-establish quorum and based on the “additional information
that [came] to light.” In arguing for a good cause exception for the peremptory
challenge, the trial counsel stated that "new information has come about that may
have some influence on the members' impartiality, potentially.” However, in
accordance with R.C.M. 912(g)(2) they could not do so as the use of a peremptory
challenge after the presentation of evidence to the members is prohibited.

       The government then reversed their earlier position and challenged COL MS
for cause based on implied bias. The government argued that a member of the public
observing the proceedings might conclude COL MS possessed an implied bias
because he was a witness to SGM LH’s emotional personal recitation of her
daughter’s sexual experience – “similar in nature to the accused in this case.”

       The defense objected indicating that the government was making a similar
argument to what defense made earlier in the normal course of voir dire when
their challenge was denied. Defense argued that COL MS stated he could be
impartial, just as he did earlier, so the government’s challenge should be denied.

       The military judge noted that the situation had changed since the earlier voir
dire in that “SGM LH pull[ed] [COL MS] aside and disclosed certain things to
[him].” The military judge then granted the challenge for cause stating:

             It’s the court’s finding that in an abundance of caution
             and in the current liberal granting of challenges for cause
             given this unique circumstance that he was pulled aside
             by another panel member and she made certain disclosures
             to him, in an abundance of caution and in an attempt to
             maintain impartiality and fairness for [appellant] the court


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             is going to grant the challenges for cause for both [SGM LH]
             and [COL MS].

(emphasis added).

                              LAW AND DISCUSSION

      Applying a Liberal Grant Mandate to a Government Challenge for Cause

       On appeal, appellant argues that the military judge erred by applying the
liberal grant mandate to a government challenge for cause for implied bias against
COL MS. Appellant also claims the military judge was biased because he
manipulated the system through “initiating and granting” the government challenge
for cause against COL MS. Appellant asserts that the error was structural, thus
obviating the need to show prejudice. We disagree that the military judge created an
appearance of bias that is tantamount to structural error. 4 While we do find the
military judge erred by improperly applying the liberal grant mandate to a
government challenge and finding implied bias, we do not agree that the military
judge’s actions constitute structural error. Additionally, we do not find prejudicial
error.

       “As a matter of due process, an accused has a constitutional right, as well as a
regulatory right, to a fair and impartial panel.” United States v. Downing, 56 M.J.
419, 421 (C.A.A.F. 2002) (quoting United States v. Wiesen, 56 M.J. 172, 174
(2001)). Rule for Courts-Martial 912(f)(1)(N) requires a panel member be excused
when it is “in the interest of having the court-martial free from substantial doubt as
to legality, fairness, and impartiality.” “This rule encompasses challenges based
upon both actual and implied bias.” United States v. Bagstad, 68 M.J. 460, 462
(C.A.A.F. 2010) (quoting United States v. Elfayoumi, 66 M.J. 354, 356 (C.A.A.F.
2008)) (additional citation omitted).

       We review a challenge for cause based on implied bias under a standard “less
deferential than abuse of discretion, but more deferential than de novo review.”
Bagstad, 68 M.J. at 462 (quoting United States v. Moreno, 63 M.J. 129, 134
(C.A.A.F. 2006)) (additional citation omitted). A military judge's determination on
issues of actual or implied member bias are based on the totality of the
circumstances of each case. United States v. Terry, 64 M.J. 295, 302 (C.A.A.F.
2007). Implied bias is “viewed through the eyes of the public, focusing on the
appearance of fairness.” Bagstad, 68 M.J. at 462 (quoting United States v. Clay, 64
M.J. 274, 276 (C.A.A.F. 2007)) (internal quotation marks omitted). Therefore, we

4
  The Supreme Court has found that judge’s rulings do not result in the appearance
of bias “unless they display a deep-seated favoritism or antagonism that would make
fair judgment impossible.” Liteky v. United States, 510 U.S. 540, 555 (1994). That
is not the case here.


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employ an objective standard when reviewing a military judge's decision regarding
implied bias. United States v. Strand, 59 M.J. 455, 458 (C.A.A.F. 2004).

        Where a military judge considers a challenge based on implied bias, the law
recognizes the duty of the military judge to liberally grant defense challenges, and
place his reasoning on the record; “instances in which the military judge's exercise
of discretion will be reversed will indeed be rare.” Clay, 64 M.J. at 277. That said,
there is no basis, however, for application of the "liberal grant" policy to
government challenges for cause. United States v. James, 61 M.J. 132 (C.A.A.F.
2005). The liberal grant rule is intended to protect the accused, not the government.
Id. at 139.

       We find that the military judge erred when he applied the liberal grant
mandate to the government’s challenge for cause against COL MS. Id. It is possible
that the military judge mentioned the liberal grant mandate because he was renewing
his previous decision denying defense’s challenge for cause; if such was the case he
did not articulate it.

       While we find error, we reject appellant’s claim that it was structural.
“Structural errors are those constitutional errors so affecting the framework within
which the trial proceeds, that the trial cannot reliably serve its function as a vehicle
for determination of guilt or innocence.” United States v. McMurrin, 70 M.J. 15, 19
(C.A.A.F. 2011) (internal citation and quotation marks omitted). There is a “strong
presumption against structural error.” Id.

             The Supreme Court has recognized two tests for structural
             error: (1) when a court is faced with ‘the difficulty of
             assessing the effect of the error,’ as in:
             Waller v. Georgia, 467 U.S. 39, 49 (1984) (violation of
             the public-trial guarantee is not subject to harmlessness
             review because “the benefits of a public trial are
             frequently intangible, difficult to prove, or a matter of
             chance”); . . . and (2) when harmlessness is irrelevant, as
             in McKaskle v. Wiggins, 465 U.S. 168, 177 (1984) (“Since
             the right to self-representation is a right that when
             exercised usually increases the likelihood of a trial
             outcome unfavorable to the defendant, its denial is not
             amenable to ‘harmless error’ analysis”).

United States v. Brooks, 66 M.J. 221, 224 (C.A.A.F. 2008).

        Improperly granting a government challenge under these circumstances does
not fit either structural error category. These type of challenges typically arise in a
scenario in which a defense challenge has been denied, the challenged member is
empaneled, and the convicted appellant claims the panel was tainted by the presence


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RECORD — ARMY 20130721

of the challenged member. Here, COL MS was removed from the panel and
appellant was tried by a panel that was otherwise impartial and fair. Therefore, in
this case, we determine next whether it materially prejudiced his substantial rights.
Id.

       Although the military judge erred in both stating the law and applying it,
finding prejudice is another matter. Appellant essentially argues that a panel
member he originally challenged for cause should now be retained – for no
articulated reason other than what appears to be a desire to reduce the panel below
the necessary one-third enlisted member composition. While it is apparent the
government’s challenge to remove COL MS was done primarily to regain quorum –
and arguably the military judge granted the challenge for cause to regain quorum –
“[t]here is no reason to suspect that a different mix of members would have
produced results more favorable to appellant.” See United States v. Newsom, 29
M.J. 17, 21 (C.M.A. 1989). Our superior court does “not subscribe to the numbers
game,” and nor shall we. Id. at 21. Appellant has a right to a fair and impartial
panel but not "a right to the panel of his choice." Wiesen, 56 M.J. at 174. As in
Newsome, the record establishes that the members who sat were thoroughly qualified
and suited to sit in judgment of appellant. See Newsom, 29 M.J. at 21.

      Accordingly, while we find errors in the military judge’s approach and
application of the law, we do not find that the errors materially prejudiced
appellant’s substantial rights – especially in light of the fact that the panel member
defense originally challenged for cause was actually excused. See United States v.
Owens, NMCCA 200100297, 2005 LEXIS 182, at *12 (N.M. Ct. Crim. App. 17 Jun.
2005) (unpublished).

        Allowing a Government Witness to Testify About Appellant’s Silence

       We review allegations of improper reference to an accused’s right to remain
silent de novo. See United States v. Clark, 69 M.J. 438, 443 (C.A.A.F. 2011).

      During direct examination of a government investigator, the trial counsel
asked whether appellant “cooperate[d]” when the witness attempted to interview
appellant. The witness responded, “No ma’am, he did not.” The defense neither
objected to the question nor the witness response.

       We accept the government’s concession that this was plain error. We next
examine the effect of this error. “The inquiry for determining whether constitutional
error is harmless beyond a reasonable doubt is ‘whether, beyond a reasonable doubt,
the error did not contribute to the defendant's conviction or sentence.’” United States
v. Kreutzer, 61 M.J. 293, 298 (C.A.A.F. 2005)(quoting United States v. Davis, 26
M.J. 445, 449 n.4 (C.M.A. 1988)). We examine this by weighing “(1) the strength of
the Government’s case, (2) the strength of the defense’s case, (3) the materiality of
the evidence in question, and (4) the quality of the evidence in question.” United


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States v. Alameda, 57 M.J. 190, 199 (C.A.A.F. 2002) (quoting United States v. Kerr,
51 M. J. 401, 405 (C.A.A. F. 1999)). After reviewing the record and weighing the
factors, we conclude the error to be harmless beyond a reasonable doubt.

         Staff Judge Advocate’s Failure to Comment on Legal Error
                        Raised in Post-trial Matters

       The defense submitted clemency matters on behalf of appellant, alleging two
“legal issues” and three clemency matters. In the section entitled “clemency
matters,” appellant argued factual and legal insufficiency. In the addendum, the
Staff Judge Advocate (SJA) specifically addressed the legal issues outlined in
appellant’s legal section but did not specifically address factual and legal
sufficiency. The SJA culminated his advice to the convening with this language:
“Having fully reviewed the defense submissions, I adhere to my previous
recommendation in this case to approve the sentence.”

       We believe the SJA incorporated by reference appellant’s legal and factual
sufficiency issue. To the extent that he did not, we have thoroughly reviewed the
claims of legal error found in appellant's clemency matters, and find they lack merit
and would not have resulted in a favorable recommendation by the SJA or any
corrective action by the convening authority. United States v. Hill, 27 M.J. 293, 297
(C.M.A. 1988).

                                CONCLUSION

       Upon consideration of the entire record, the findings of guilty and the
sentence are AFFIRMED.

      Senior Judge TOZZI and Judge CELTNIEKS concur.


                                       FOR
                                       FOR THE
                                           THE COURT:
                                               COURT:




                                       MALCOLM H. SQUIRES, JR.
                                       MALCOLM H. SQUIRES, JR.
                                       Clerk of Court
                                       Clerk of Court




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