                        UNITED STATES, Appellant

                                         v.

                    Jeremy J. NASH, Staff Sergeant
                      U.S. Marine Corps, Appellee

                                No. 11-5005/MC

                        Crim. App. No. 201000220

       United States Court of Appeals for the Armed Forces

                        Argued February 14, 2012

                          Decided April 13, 2012

BAKER, C.J., delivered the opinion of the Court in which
ERDMANN, STUCKY, and RYAN, JJ., and EFFRON, S.J., joined.

                                     Counsel

For Appellant: Captain Mark V. Balfantz, USMC (argued); Brian
K. Keller, Esq. (on brief).

For Appellee:   Major Kirk Sripinyo, USMC (argued).

Military Judge:    John R. Ewers



            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Nash, No. 11-5005/MC


    Chief Judge BAKER delivered the opinion of the Court.

    In November 2009 the accused was tried by a general court-

martial composed of officer and enlisted members.   Contrary to

his pleas, he was convicted of one specification each of taking

indecent liberties with and committing an indecent act with MR,

a child under the age of sixteen; four specifications of taking

indecent liberties with LR, a child under the age of sixteen,

and three specifications of committing indecent acts with LR;

and one specification of knowingly and wrongfully possessing

visual depictions of persons under the age of sixteen engaging

in sexually explicit conduct to the prejudice of good order and

discipline and of a nature to bring discredit upon the armed

forces, all in violation of Article 134, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. § 934 (2006).    The adjudged

sentence included eighteen years of confinement, reduction in

pay grade to E-1, and a dishonorable discharge.    The convening

authority approved the sentence as adjudged.

     On review, the United States Navy-Marine Corps Court of

Criminal Appeals (CCA) set aside the findings of guilty and the

sentence and authorized a rehearing.    United States v. Nash, No.

NMCCA 201000220, 2011 CCA LEXIS 116, at *27, 2011 WL 2557630, at

*9 (N-M. Ct. Crim. App. June 28, 2011).

    The Judge Advocate General subsequently certified three

issues to this Court:


                                2
United States v. Nash, No. 11-5005/MC


                                     I.

        WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL
        APPEALS ERRED IN REVIEWING THE IMPLIED BIAS ISSUE DE
        NOVO, RATHER THAN REVIEWING THE IMPLIED BIAS ISSUE
        UNDER THE STANDARD OF “LESS DEFERENCE THAN ABUSE OF
        DISCRETION BUT MORE DEFERENCE THAN DE NOVO” AS SET
        FORTH IN U.S. v. BAGSTAD, 68 M.J. 460 (C.A.A.F. 2010).

                                    II.

        WHETHER THE LOWER COURT FAILED TO APPLY THE IMPLIED
        BIAS TEST THAT ASKS WHETHER, CONSIDERED OBJECTIVELY,
        “MOST PEOPLE IN THE SAME POSITION WOULD BE
        PREJUDICED,” REITERATED IN 2010 IN BAGSTAD, AND
        INSTEAD ERRONEOUSLY APPLIED A TEST ASKING WHETHER THE
        MEMBER’S CIRCUMSTANCES “DO INJURY TO THE PERCEPTION OR
        APPEARANCE OF FAIRNESS IN THE MILITARY JUSTICE
        SYSTEM?”

                                    III.

        WHETHER THE LOWER COURT ERRED IN REVERSING THE
        MILITARY JUDGE SETTING ASIDE THE FINDINGS AND SENTENCE
        FOR IMPLIED BIAS WHERE THE MEMBER SUBMITTED A WRITTEN
        REQUEST, WHICH WAS DENIED, THAT THE MILITARY JUDGE ASK
        A WITNESS “DO YOU THINK THAT PEDOPHILES CAN BE
        REHABILITATED?”

    For the reasons set forth below, we conclude that the

military judge abused his discretion by denying defense

counsel’s challenge of a court member on the basis of actual

bias.    Because we find actual bias, we need not reach certified

issues one and two covering implied bias.

                               I.    FACTS

        Appellee was a Staff Sergeant (E-6) in the U.S. Marine

Corps deployed to Okinawa, Japan.          During his first tour in

Okinawa, Appellee married MN, a Japanese national.         The criminal



                                     3
United States v. Nash, No. 11-5005/MC


charges against Appellee arose from sexual misconduct that he

engaged in with, and in the presence of MR, KR, and LR, the

daughters of MN’s sister AT.

    From 2003 through 2006, Appellee engaged in a variety of

sexual misconduct.   LR testified that Appellee indecently

touched her vaginal area twenty to twenty-five times, touched

her breast region ten to fifteen times, showed her adult

pornography once, and took nude photos of her.   LR testified

that she was about eight years old when the assaults began.

    Additionally, MR testified that Appellee exposed himself to

MR and her younger sister KR in a bedroom and committed indecent

acts in front of them.   At the time of this incident, MR was six

years old and KR was four years old.    During the same time

period, Appellee engaged in an affair with AT, MN’s sister.

    Although it is unclear how the events unfolded, JR, AT’s

then-husband and the biological father of MR and KR, ultimately

contacted the Naval Criminal Investigative Service (NCIS) in

2006 resulting in the investigation into Appellee’s misconduct.

When NCIS investigators went to Appellee’s house, they found 580

child pornography images and seven child pornography videos on

Appellee’s computer.

     During voir dire at Appellee’s trial, the military judge

instructed the members that “You must impartially hear the

evidence, the instructions on the law.   And only when you are in


                                 4
United States v. Nash, No. 11-5005/MC


your closed session deliberations, may you properly make a

determination as to whether the accused is guilty or not guilty

. . . .”   The military judge instructed the members that they

must make their determination of whether the accused is guilty

solely upon the evidence and emphasized the fact that “it is of

vital importance that [they] retain an open mind until all the

evidence has been presented and the instructions have been

given.”

     During the defense case on the merits, while MN was on the

stand, one of the members, Master Gunnery Sergeant (MGySgt) S

submitted a question to ask MN, “Do you think a pedophile can be

rehabilitated?”1   Both the trial counsel and defense counsel

objected to the question.   The question was not asked.   The

defense counsel requested that the military judge voir dire

MGySgt S to determine whether he still maintained an open mind.

The trial counsel did not want to individually question him;

instead they requested a curative instruction to all members.

     The military judge then reviewed the other questions asked

by MGySgt S and concluded that the other questions he asked did

not indicate any bias and that he had kept an open mind.   The

military judge then decided to voir dire the panel as a whole.

1
  Throughout the trial, MGySgt S submitted fifteen questions,
including “Who determines what is high risk [--] the owner of
the item or the shipping company?”; “What happens when you
format a hard drive[?]”; “What were the men doing while the
women were cooking?”; “Was Sgt Nash considered for a medal?”

                                 5
United States v. Nash, No. 11-5005/MC


The military judge stated to counsel that if he talked to MGySgt

S alone, he might “chill the discussion in the deliberation

room.”   Once the members returned to the courtroom, the military

judge stated “I told you at the outset of this trial that as

court members you must keep open minds regarding the verdict

until all the evidence is in and you’ve been instructed as to

the law.   Everybody recall that instruction?”   The members

responded affirmatively.   Then, the military judge asked, “Is

there any member that believes they have been unable at this

point to keep an open mind regarding the verdict?”    All members

then responded in the negative.

    At this time, the defense rested and the court recessed for

the military judge to prepare jury instructions.   When the

court-martial resumed, the military judge told the parties that

he had reconsidered his ruling, and without further comment,

stated his intent to individually question MGySgt S.   The

Government objected and argued that MGySgt S would feel he did

something wrong and feel compelled to vote not guilty.   The

military judge overruled the objection and conducted voir dire:

     MJ: Okay. You also remember the instruction I gave
     you again just a few minutes ago, and that’s to keep
     an open mind until all the evidence has been admitted
     and you’ve been instructed?

     MEM (MGySgt S):   Yes, sir.

     MJ:   You think you’ve managed to follow that?



                                   6
United States v. Nash, No. 11-5005/MC


     MEM (MGySgt S):   Yes, sir. I think I have.

     MJ: Okay. I also advised you in asking questions you
     should not depart from your impartial role as a trier
     of fact and ask questions biased to aid one side or
     the other. Do you remember that instruction?

     MEM (MGySgt S):   I believe so, sir.

     MJ: I got to ask you. You wanted to ask [MN] a
     question, and the question was: Do you think that
     pedophiles can be rehabilitated?

     MEM (MGySgt S): Yes, sir. I went back and forth with
     that question in my head. I wanted to get her opinion
     if she understood that frame of mind, I guess, if it
     is a frame of mind or if it’s a disease or a learned
     thing. I was just curious, sir, you know, I haven’t
     made a judgment either way yet.

     MJ: And you just wanted to see if that would give you
     some insight into her credibility as a witness? Is
     that a fair statement?

     MEM (MGySgt S): Yes, sir. I guess you could say it’s
     a fair statement. I wanted to see -- well, not
     necessarily checking her intelligence level or
     anything. I guess her naїveness or if she’s --
     because I know there’s a lot of -- from my experience
     in Japan, they seem real timid or naïve maybe, easily
     embarrassed.

     MJ: So the question wasn’t an indication that you had
     determined that Staff Sergeant Nash might be a
     pedophile, but to try to knock her out of her naїveté
     that you thought she might be experiencing?

     MEM (MGySgt S): Yes, sir. I wasn’t accusing Staff
     Sergeant Nash or trying to indicate that I made my
     decision already. Just you know, I thought it was a
     tough question to ask. That’s why I went back and
     forth with it, you know, is the timing right for that
     type of question.

     MJ: We’ve heard a lot of evidence in this case to
     this point. From both sides. From the prosecution
     and the defense. Do you feel like you’ve been able to


                                 7
United States v. Nash, No. 11-5005/MC


     keep an open mind throughout, listening to all the
     evidence?

     MGySgt S:    Yes, sir.

Neither counsel posed further questions.    The military judge

then asked MGySgt S whether he felt this would affect his

ability to deliberate freely with the other members, both of

higher and lower rank.2    MGySgt S stated that he felt “at ease

with speaking [his] mind” and that he thought, “You can always

learn better ideas from the junior guys . . . .”

     After this exchange, defense counsel moved for MGySgt S to

be removed for cause.     Specifically, defense counsel argued that

his voir dire answers did not make any sense.    The defense

counsel argued:

     The question to the witness whether or not she
     believes that a pedophile can be rehabilitated to test
     her level of naїvness, to test her timidness, it does
     not quite make sense, sir. It’s not the type of
     question you would ask in this type of case just to
     see if a witness is timid or naïve, sir. And despite
     the allegation by the master guns that he had kept an
     open mind and can keep an open mind, I believe that it
     would appear that he has not, sir.

Trial counsel disagreed, saying that the military judge

conducted a “very good voir dire.”     Trial counsel went on to

argue that:

     I’ve really, in almost twenty years of experience, not
     heard a better response to difficult questions with
     somebody trying to explain to the military judge how

2
  The panel consisted of three enlisted members and three
officers.

                                   8
United States v. Nash, No. 11-5005/MC


     he’s trying to do his absolute best to listen to all
     the evidence, not be predisposed, to listen to the
     instructions on the law from the military judge . . .
     I think his responses were spot on.

     And one of the things that . . . you have the ability
     to do that, obviously, anybody in reviewing a written
     record can’t, is you can also assess whether the
     master gunnery sergeant looked you in the eyes,
     responded to your questions, his demeanor in providing
     those responses. And I think . . . [he] did his
     absolute best to respond to your questions in an
     honest and forthright manner. And I think he
     articulated pretty much what most serious, fair, and
     just-minded jurors would do at this stage in the
     proceeding when an individual is voir dired.

The military judge then denied the challenge for cause.   He

concluded:

     While unusual, the question asked by Master Gunnery
     Sergeant S was not far from the questions proffered by
     trial counsel to probe the witness’s [MN’s] bias, as
     it were, based on her statement to Special Agent
     Rendon that she may have viewed the child pornography.
     In essence, [the Government] argued that since [the
     witness] didn’t see anything wrong with child
     pornography and that she may have viewed it to the
     extent that that’s reflected on her statement to
     Special Agent Rendon, it is at least a logically
     supported proposition that she -- her testimony may be
     colored by a form of bias, that she didn’t think
     anything seriously wrong had gone on here. Master
     Gunnery Sergeant S[’s] question, again was not far
     from that.3

     While that question may superficially indicate a
     tendency to draw conclusions, and while we do require
     members to keep an open mind, we all know as courtroom
     observers that the evidence can sway from one side to

3
  Special Agent Rendon testified, by way of stipulation, that
during the search of Appellee’s home, NCIS asked MN if they
could seize Appellee’s home computer. She agreed, however she
made a statement that NCIS must not search the computer for
child pornography, adding “what if I was looking at those?”

                                9
United States v. Nash, No. 11-5005/MC

        the other and to the extent that that did reflect a
        tendency to draw conclusions, it was not far from a
        member who comes [into] initial voir dire with
        problems with, say presumption of innocence and
        through the education aspect of voir dire, that
        individual is rehabilitated based on voir dire itself.

        So to the extent there may have been any remaining
        implied bias or indication that Master Gunnery
        Sergeant S has not retained an open mind, I find that
        his answers were sincere and they reflected that, at
        this point in the trial, at a critical time, that is,
        just immediately before we argue the case, instruct
        the members and send them into the deliberation room,
        that he has an open mind. He may have the most open
        mind of any member based on the voir dire that we just
        went through with him at this point.

        On appeal, the CCA reviewed whether the military judge

erred when he denied the Appellee’s challenge for cause of

MGySgt S.    Nash, 2011 CCA LEXIS 116, at *2-*3, 2011 WL 2557630,

at *1.    The CCA held that the military judge did err by failing

to excuse MGySgt S after his question on the basis of implied

bias.    2011 CCA LEXIS 116, at *26-*27, 2011 WL 2557630, at *9.

As a result, the CCA set aside the findings and sentence and

authorized a rehearing.    2011 CCA LEXIS 116, at *27, 2011 WL

2557630 at *9.

        The CCA concluded, without further explanation, that the

military judge did not abuse his discretion in ruling that

MGySgt S was not actually biased.      2011 CCA LEXIS 116, at *17,

2011 WL 2557630, at *6.    The CCA then went on to review implied

bias and concluded that the military judge erred by not

articulating any treatment of implied bias and its attendant


                                  10
United States v. Nash, No. 11-5005/MC

test on the record.    2011 CCA LEXIS 116, at *21-*23, 2011 WL

2557630, at *7-*8.    As a result, citing the liberal grant

mandate, the CCA reviewed the issue of implied bias de novo.

2011 CCA LEXIS 116, at *23, 2011 WL 2557630, at *7-*8.

        The CCA noted that the individual voir dire of MGySgt S did

nothing to dispel the concern that MGySgt S was biased because

of “the leading nature of the military judge’s questions, which

then evinced very predictable answers and additionally

problematic, non[ ]sequitur responses.”    2011 CCA LEXIS 116, at

*25, 2011 WL 2557630, at *8.    Also, “aspects of his responses

seemed predicated on an assumption that [Appellee] was a

pedophile and his wife, [MN], was naïve in her assessment of

pedophiles.”    Id.   The CCA concluded that “it is clear . . .

from the call of [MGySgt S’s] question to [Appellee’s] wife that

he had already reached the conclusion that [Appellee] was

guilty.    When the court reviews a matter under implied bias, it

is in fact appearances that carry the day.”    2011 CCA LEXIS 116,

at *26, 2011 WL 2557630, at *9.    The CCA went on to conclude

that:

        When MGySgt S’s question to [MN] is “viewed
        through the eyes of the public, focusing on the
        appearance of fairness,” the record reveals that
        MGySgt S had not maintained an open mind, but
        rather had prematurely and unfairly determined
        that [Appellee] was a pedophile, ergo, in some
        sense, guilty, prior to being instructed on the
        law by the military judge, and before
        deliberations had commenced.


                                  11
United States v. Nash, No. 11-5005/MC

2011 CCA LEXIS 116, at *26, 2011 WL 2557630, at *9 (quoting

United States v. Strand, 59 M.J. 455, 458 (C.A.A.F. 2004).

Because MGySgt S had not maintained an open mind and could not

follow jury instructions, the CCA concluded that MGySgt S was

impliedly biased.   2011 CCA LEXIS 116, at *26-*27, 2011 WL

2557630, at *9.   Finally, the CCA emphasized the fact that the

military judge did not discuss the liberal grant mandate on the

record making it unclear whether the military judge “deployed it

as a judicial tool” further warranting the excusal of MGySgt S.

2011 CCA LEXIS 116, at *27, 2011 WL 2557630, at *9.       The CCA

then authorized a rehearing.      Id.

                            II.   DISCUSSION

     An accused enjoys the right to an impartial and unbiased

panel.   United States v. Mack, 41 M.J. 51, 54 (C.M.A. 1994).

This right is provided in the military justice system by “the

Constitution, federal statutes, regulations and directives, and

case law.”   United States v. Terry, 64 M.J. 295, 301 (C.A.A.F.

2007).

    “A military judge’s determinations on the issue of member

bias, actual or implied, are based on the ‘totality of the

circumstances particular to [a] case.’”        Terry, 64 M.J. at 302

(quoting Strand, 59 M.J. at 456) (brackets in original).       Actual

bias and implied bias are “separate legal tests, not separate

grounds for a challenge.”    United States v. Armstrong, 54 M.J.


                                   12
United States v. Nash, No. 11-5005/MC

51, 53 (C.A.A.F. 2000).    More specifically, the right to an

impartial and unbiased panel is upheld through military judges’

determinations on the issues of actual bias, implied bias, and

the mandatory disqualifying grounds in the Rules for Courts-

Martial (R.C.M.) that preclude persons from serving on a panel.

For instance, in the case of R.C.M. 912(f)(1)(M), which

encompasses actual bias, a member must be excused when he or she

“[h]as informed or expressed a definite opinion as to the guilt

or innocence of the accused as to any offense charged.”

    Actual bias is personal bias which will not yield to the

military judge’s instructions and the evidence presented at

trial.   United States v. Reynolds, 23 M.J. 292, 294 (C.M.A.

1987).   Appellate courts will review the military judge’s ruling

for abuse of discretion.   Id.   “Because a challenge based on

actual bias involves judgments regarding credibility, and

because ‘the military judge has an opportunity to observe the

demeanor of court members and assess their credibility during

voir dire,’ a military judge’s ruling on actual bias is afforded

great deference.”   United States v. Clay, 64 M.J. 274, 276

(C.A.A.F. 2007) (quoting United States v. Daulton, 45 M.J. 212,

217 (C.A.A.F. 1996)).   “‘Great deference’ is not a separate

standard.”   United States v. White, 36 M.J. 284, 287 (C.M.A.

1993).   Rather, it is our recognition that the legal question of

actual bias rests heavily on the sincerity of an individual’s


                                 13
United States v. Nash, No. 11-5005/MC

statement that he or she can remain impartial, an issue

approximating a factual question on which the military judge is

given greater latitude of judgment.   See id.   The standard,

however, remains an abuse of discretion.

     Because we conclude that the military judge abused his

discretion when he did not excuse MGySgt S for actual bias we

need not reach the issue of implied bias in certified issues one

and two.4   First, the Rules for Courts-Martial provide that

military judges must remove any member who has formed or

“expressed a definite opinion as to the guilt or innocence of

the accused as to any offense charged.”    R.C.M. 912(f)(1)(M).

MGySgt S’s question, “Do you think a pedophile can be

rehabilitated?,” presents the issue of actual bias as it

suggested that MGySgt S believed Appellee was a pedophile that

committed the crimes he was charged with and that he might have

believed pedophiles cannot be rehabilitated, and did so before

the close of evidence.




4
  The issue of implied bias generally arises during the voir dire
phase of a court-martial. However, it is important to keep in
consideration that, as in this case, the issue can arise at any
time during the trial. See R.C.M. 912(f)(2)(B) (“A challenge
for cause may be made at any other time during trial when it
becomes apparent that a ground for challenge may exist. Such
examination of the member and presentation of evidence as may be
necessary may be made in order to resolve the matter.”).
Therefore, it is incumbent upon military judges to tailor the
application of the implied bias test to the context presented.

                                14
United States v. Nash, No. 11-5005/MC

     When the military judge asked MGySgt S about his motivation

for asking the question, the colloquy that resulted was

ineffectual.   The military judge asked a series of leading

questions which led to predictable answers but also some

irrelevant and problematic responses.   While MGySgt S answered

affirmatively that he had kept an open mind throughout the

presentation of evidence and stated that he had not “made a

judgment either way,” the plain language of his question

indicates a conclusion as to Appellee’s guilt and the subsequent

voir dire did not otherwise dispel the possibility.    To the

contrary, the answers raised additional concerns regarding the

member’s views of a defense witness.    The military judge found

that while the question was “unusual” and “may superficially

indicate a tendency to draw conclusions,” the military judge

concluded that MGySgt S was “sincere” and that “[he] may have

the most open mind of any member . . . at this point.”

     While the military judge is in the best position to judge

the demeanor of a member, in certain contexts mere declarations

of impartiality, no matter how sincere, may not be sufficient.

In this case, MGySgt S’s stated rationale was inadequate to

resolve the question of bias.   The discussion did not relieve

the concern that MGySgt S had made up his mind because he did

not state a clear rationale for asking the question.




                                15
United States v. Nash, No. 11-5005/MC

     Second, the requirement for an impartial panel provides

that all members follow the military judge’s jury instructions.

See Richardson v. Marsh, 481 U.S. 200, 206 (1987) (noting this

is an “almost invariable assumption of law”); United States v.

Washington, 57 M.J. 394, 403 (C.A.A.F. 2002) (“Juries are

presumed to follow the instructions, until demonstrated

otherwise.” (citing United States v. Holt, 33 M.J. 400, 408

(C.M.A. 1991))).   Before trial, the military judge asked the

members, including MGySgt S, whether they would be able to keep

an open mind and instructed them not to make any determination

of guilt before all of the evidence had been presented.    During

trial, the military judge asked the same questions and

instructed the jury again to keep an open mind and to not come

to a decision before all of the evidence had been presented.

However, MGySgt S’s question demonstrated that he had not kept

an open mind until the close of evidence and was therefore

unable to follow the military judge’s instructions.   This

demonstrates that MGySgt S’s bias could not yield to the

military judge’s instructions and the military judge should have

excused him from the panel.

                         III.   CONCLUSION

     For the foregoing reasons, we conclude that the military

judge abused his discretion when he did not excuse MGySgt S on

the basis of actual bias.   Because we find actual bias, we need


                                 16
United States v. Nash, No. 11-5005/MC

not reach the issue of implied bias as it is not determinative

in the presence of actual bias.5      The decision of the United

States Navy-Marine Corps Court of Criminal Appeals is affirmed.




5
    As a result, all outstanding motions are denied as moot.

                                 17
