UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                            Before
                               MULLIGAN, HERRING, and BURTON
                                   Appellate Military Judges

                               UNITED STATES, Appellee
                                            v.
                        Private First Class ERICK A. MEDRANO
                             United States Army, Appellant

                                          ARMY 20140167

                        Headquarters, 2d Infantry Division
                       Colonel Wendy Daknis, Military Judge
            Lieutenant Colonel Lance S. Hamilton, Staff Judge Advocate


For Appellant: Captain J. David Hammond, JA (argued); Lieutenant Colonel
Jonathan F. Potter, JA; Major Christopher D. Coleman, JA; J. David Hammond (on
brief and petition for new trial).

For Appellee: Captain Anne C. Hsieh, JA (argued); Major Daniel D. Derner, JA;
Captain Anne C. Hsieh, JA (on brief); Major A.G. Courie III, JA; MAJ Steven J.
Collins, JA; Captain Anne C. Hsieh, JA (on answer to petition for new trial).


                                         29 December 2016

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          MEMORANDUM OPINION AND ACTION ON PETITION FOR NEW TRIAL
        ---------------------------------------------------------------------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

MULLIGAN, Senior Judge:
       A panel composed of officer and enlisted members convicted appellant,
contrary to his pleas, of attempted voluntary manslaughter, damaging nonmilitary
property, and drunk and disorderly conduct in violation of Articles 80, 109, and 134
Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 880, 909 and
934 (2012). The panel sentenced appellant to a bad-conduct discharge, confinement
for thirty months, forfeiture of all pay and allowances, and reduction to the grade of
E-1.
      This case comes before us both for review under Article 66, UCMJ, and as a
petition for new trial under Article 73, UCMJ and Rule for Courts-Martial
MEDRANO—ARMY 20140167

hereinafter R.C.M.] 1210. 1 Of appellant’s three assignments of error, and his
personally assigned issues pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982), none merit discussion or relief. Appellant’s petition for new trial
warrants discussion, but no relief.

                                     BACKGROUND

                    A. Private First Class Medrano’s Misconduct

     In the early morning hours of 3 September 2013, appellant returned to his
barracks room on Camp Casey, Korea, after a night of drinking. Appellant called his
wife and began to argue with her on the phone. At this time, appellant’s roommate
Private (PVT) JW, and their mutual friend, Private First Class (PFC) BM were
watching television in the room. Appellant asked PVT JW to turn the television off,
because his wife thought he was watching it instead of paying attention to the phone
conversation. Private JW lowered the television’s volume, but he did not turn it off.
Upset, appellant turned the television off and threatened to punch it if it was turned
on again. Private JW turned the television back on, and appellant punched and
shattered the screen. Appellant and PVT JW began arguing and started to wrestle.
Private JW held appellant in a “rear naked choke” hold until appellant “tapped out.”
Appellant then picked up a knife and stabbed PVT JW. Private JW threw the
appellant onto the bed and jumped on top of him. Appellant continued to stab PVT
JW while on the bed until PFC BM intervened. Private JW ran from the room and
collapsed in the stairwell. Appellant stabbed PVT JW eleven times, resulting in
multiple injuries, to include a punctured lung and punctured spleen. Private JW was
hospitalized for nine days.

             B. Private First Class Medrano’s Court-Martial Voir Dire

     On 5 March 2014, appellant proceeded to a general court-martial composed of
officer and enlisted members. The court-martial flyer listed the following charges:
one specification of damaging non-military property; one specification of aggravated
assault causing grievous bodily harm; one specification of aggravated assault with a
means likely to cause death or grievous bodily harm; one specification of drunk and
disorderly conduct; and one specification of attempted murder.

     First Sergeant RJ (1SG) sat as one of the enlisted panel members. At the time
of PFC Medrano’s court-martial trial, 1SG RJ was not the subject of any
investigation or pending any criminal charges. Approximately eight months after
appellant’s court-martial, 1SG RJ was charged with, among other things, multiple
assaults against his estranged wife that, with the exception of one, occurred prior to

1
 The Court heard oral argument on the petition for a new trial at the George
Washington University School of Law in Washington, DC.


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his service as a panel member. 2 The most recent allegation of assault charged prior
to his service on the court-martial panel was November 2012, approximately sixteen
months prior to appellant’s court-martial.

      At the beginning of voir dire the military judge asked the prospective members
to state “any matter which he or she believes may be a ground for challenge by
either side.” No matters were raised by the members. The military judge then asked
the following questions:

             MJ: Having seen the accused and having read the charges
             and specifications, does anyone feel that you cannot give
             the accused a fair trial for any reason?
             [Negative Response from all panel members]

             [. . .]

             MJ: 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?
             [Negative response from all members]

             [. . .]

             MJ: Is any member aware of any matter which might raise
             a substantial question concerning your participation in this
             trial as a court member?
             [Negative response from all members]…

First Sergeant RJ answered the following questions affirmatively:

             ATC: “[H]as anyone ever been in a fight?”

             [. . .]

             ADC: “Have you ever worked with victims of assault in
             any capacity?”

             [. . .]


2
 On 19 March 2015, 1SG RJ pleaded guilty to three specifications of a violation of
Article 128, UCMJ, assault, by pushing his wife on the chest with his hand, striking
her on her head with his hand, and grabbing her arm and throwing her on a bed. He
additionally pleaded guilty to one specification of a violation of Article 134, UCMJ,
by failing to pay a just debt.


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             ADC: “Have you, a close friend, or relative ever been
             accused of something you did not do?”

       First Sergeant RJ clarified his answer to these questions during individual
voir dire. He explained that he was in a fight in high school. He also explained he
worked with victims of assault in a professional capacity as a platoon sergeant, and
he was mistakenly suspected as an altercation participant with German locals in
1994. He also disclosed that he was trained in boxing techniques, but he never used
those techniques outside of training. First Sergeant RJ did not disclose any instance
of the domestic assaults for which he was later convicted. No challenges for cause,
nor any peremptory challenges, were brought against 1SG RJ.

                              LAW AND DISCUSSION

                                 Standard of Review

        A motion for a new trial is normally addressed “to the sound discretion of a
trial judge and his ruling is not subject to review except in case of abuse...”. United
States v. Thomas, 3 U.S.C.M.A. 161, 11 C.M.R. 161, 164 (1953). As the court of
first instance in regards to this petition, we may exercise de novo discretion in
determining whether “sufficient grounds exist for granting” a new trial, but “this
broad discretion must not be abused.” United States v. Bacon, 12 M.J. 489, 492
(C.M.A. 1992).

                       A. Article 73, Petition for a New Trial

       In the case of a petition for a new trial, “[i]f the accused’s case is pending
before a Court of Criminal Appeals . . . the Judge Advocate General shall refer the
petition to the appropriate court for action.” UCMJ Art. 73. The appellant may
“petition for a new trial on the grounds of newly discovered evidence or fraud on the
court.” A new trial will not be granted to “permit the accused to relitigate general
matters which were presented below and decided adversely to him.” United States v.
Bacon, 12 M.J. 489, 492 (C.M.A. 1982) (citing United States v. Troutt, 24 C.M.R.
246, 248 (1957); United States v. Johnson, 28 C.M.R. 662, 686 (N.B.R.1959)).
Appellant’s petition alleges fraud on the court-martial by the willful concealment of
a material ground for challenge. A new trial may be ordered when “the basis for
challenge or disqualification was not known to the defense at the time of trial” due
to “willful concealment of a material ground for challenge of the [panel] member.”
R.C.M. 1210(f) discussion at A21-98.

      A hearing pursuant to United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R.
411 (1967), is generally the appropriate method for finding facts relating to a panel
member’s failure to disclose. United States v. Mack, 41 M.J. 51, 55, (C.A.A.F.
1994); United States v. Humphreys, 57 M.J. 83, 96 (C.A.A.F. 2002). Here, appellant



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does not request a DuBay hearing, and we can rely on supplemental extracts from
1SG RJ’s court-martial.

  B. The McDonough Power Equip., Inc. Legal Test: Fraud on the Court-Martial

       In addressing the question of whether a court member’s failing to respond or
giving an incorrect response prejudiced the rights of the appellant, we are guided by
the U.S. Supreme Court’s established test in McDonough Power Equip., Inc v.
Greenwood, 464 U.S. 548 (1984). On a petition for new trial based on a juror’s
alleged fraud:

             [A] party must first demonstrate that a juror failed to
             answer honestly a material question on voir dire, and then
             further show that a correct response would have provided
             a valid basis for a challenge for cause.

464 U.S. at 556. This test is two parts that first requires a finding that the juror
failed to answer honestly a material question before we move to consider whether a
valid basis for a challenge for cause exists.

       Consistent with our superior court’s analysis in United States v. Taylor, 44
M.J. 475 (C.A.A.F. 1996), we must first establish whether 1SG RJ failed to answer
voir dire questions honestly, or willfully concealed his misconduct involving the
assaults on his wife. Using the Taylor framework, if we find 1SG RJ’s answers were
not dishonest, we do not proceed to the second prong of the analysis.

       The issue in Taylor involved a colonel on an officer panel who, six months
after sitting as a panel member in a premeditated murder, burglary, and larceny case,
was convicted pursuant to his pleas of several sex offenses. These offenses
included: seven specifications of sodomy (two involving a child under the age of
16); one specification of conduct unbecoming an officer by having an illicit
relationship with a male staff sergeant assigned to the colonel’s unit; five
specifications of indecent acts upon a male under the age of 16; six specifications of
indecent acts with an adult male; and three specifications of indecent act with a
staff sergeant. The allegations were not known at trial and there was “no evidence
that at the time he was empaneled he knew he was under investigation, nor is there
evidence of either his actual prejudice against [appellant] or words or actions that
show he might be prejudiced.” Taylor, 44 M.J. at 477.

      The court’s reasoning in Taylor followed that in United States v. Aguon, 851
F.2d 1158 (9 th Cir. 1988), where the defendant discovered a juror in her case had
pleaded guilty, subsequent to her trial, to similar charges involving “taking of
kickbacks in connection with the letting of paving contracts.” 851 F.2d at 1170. In




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both Aguon and Taylor the juror/panel member was asked variations of the general
fairness voir dire questions. In Taylor the questions were:

      (1) Is any member of the court aware of any other matter which the member
          believes may be a grounds for challenge by either side against him?
          Negative response;

      (2) [D]o all of you have the frame of mind that you would want court
         members to have if the roles were reversed and you were accused of
         committing a crime? Are all of you in that impartial mindset?
         Affirmative response from all members.

44 M.J at 477.

       This court distinguishes dishonesty from answering questions narrowly.
United States v. Robinson, ARMY 20120993, 2014 CCA LEXIS 917, at *3 (Army
Ct. Crim. App. Dec. 23, 2014) (In a case alleging sexual assault of an adult victim,
members were asked if a family member or somebody close to them were ever the
victim of a “similar” offense. One member’s failure to disclose his daughter was the
victim of child sex offense was not dishonest; rather, he did not consider an offense
against an adult and an offense against a child as “similar.”).

       In United States v. Albaaj, 65 M.J. 167 (C.A.A.F 2007), our superior court
dealt with the dishonest juror. During initial voir dire by the military judge the
panel was specifically asked “Does anyone know anyone named Emad, in any of the
specifications?” Emad was the accused’s brother and a witness at the court-martial.
When Emad testified, a panel member recognized that his previous answer was
incorrect and that in fact he did know him and worked with him. The panel member,
however, did not correct his previous answer by informing the military judge. The
court concluded that the failure by the panel member to correct his original answer
regarding knowledge of a witness “violated his duty of candor” and the first prong
of McDonough Power Equip. was satisfied. There was little room to quibble-the
panel member either knew the witness with a unique name or he did not.

       In consonance with our holding in Robinson, we find that 1SG RJ answered
the questions narrowly rather than dishonestly. We disagree with appellant’s view
that the domestic assaults to which 1SG RJ pleaded guilty were similar to the
charges on the flyer, thereby making his answers during voir dire wrong or
dishonest. A domestic assault between a husband and wife consummated by a chest
push, head slap, and arm pull is drastically different from an assault with a deadly
weapon and attempted murder of a fellow soldier in the barracks. The flyer the
panel members were presented with outlined charges that included attempted murder
“by repeated stabbing with a knife.” While not minimizing the serious nature of
domestic assault, but rather comparing the assault offenses for which 1SG RJ was



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convicted 3 with attempted murder, we do not find them sufficiently similar to
appellant’s charges.

       Additionally, we find it is reasonable that 1SG RJ’s physical interactions with
his wife sixteen months previous would not come to mind as “similar” when the
flyer described a physical altercation between two men that ended with an attempted
murder. While lawyers may view appellant’s charges and the charges of which 1SG
RJ was convicted as escalating gradations of an assaultive offense, it is reasonable
that the lay panel members would not view the offenses as similar. It is simply not
intuitive that a “similar offense” to assault would be attempted murder by stabbing.

       Given that we find 1SG RJ’s answers were not dishonest, we find appellant
has failed the first prong of McDonough Power Equip. and we conclude our analysis.

                                 CONCLUSION

      On consideration of the entire record, and the assigned errors, the petition for
a new trial is DENIED. The findings and sentence are AFFIRMED.

      Judge HERRING and Judge BURTON concur.

                                        FOR THE COURT:
                                        FOR THE COURT:



                                        JOHN P. TAITT
                                        JOHN   P. TAITT
                                        Acting Clerk of Court
                                        Acting Clerk of Court




3
  First Sergeant RJ was originally additionally charged with two aggravated assaults
on his wife, one in April 2011 by placing a knife to her neck, and the second by
strangling her neck with his hands in November 2012, but those specifications were
dismissed.


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