UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                             Before
                                 MULLIGAN, FEBBO, and WOLFE
                                    Appellate Military Judges

                                UNITED STATES, Appellee
                                             v.
                              Specialist CEZAR M. LAZCANO
                               United States Army, Appellant

                                         ARMY 20150354

                               Headquarters, Fort Campbell
                     Steven E. Walburn, Military Judge (arraignment)
                       James W. Herring, Jr., Military Judge (trial)
                Lieutenant Colonel Robert C. Insani, Staff Judge Advocate


For Appellant: Captain Cody Cheek, JA (argued); Colonel Mary J. Bradley, JA;
Major Christopher D. Coleman, JA; Captain Cody Cheek, JA (on brief); Lieutenant
Colonel Christopher D. Carrier, JA; Major Christopher D. Coleman, JA; Captain
Ryan T. Yoder, JA; Captain Cody Cheek, JA (on reply brief); Lieutenant Colonel
Christopher D. Carrier, JA; Major Christopher D. Coleman, JA; Captain Cody
Cheek, JA (on supplemental brief).

For Appellee: Captain Catherine M. Parnell, JA (argued); Colonel Mark H.
Sydenham, JA; Captain Samuel E. Landes, JA; Captain Catherine M. Parnell, JA (on
brief and supplemental brief).


                                             3 July 2017

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

     This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

WOLFE, Judge:

       A panel with enlisted representation sitting as a general court-martial
convicted Specialist Cezar Lazcano [hereinafter appellant], contrary to his pleas, of
a single specification of sexual assault by bodily harm against his fellow soldier,
TM, 1 in violation of Article 120, Uniform Code of Military Justice [hereinafter
UCMJ], 10 U.S.C. § 920 (2012 & Supp. IV 2014). The convening authority
approved the adjudged sentence of a dishonorable discharge, confinement for three

1
    By the time of trial TM had separated from the Army.
LAZCANO—ARMY 20150354

years, forfeiture of all pay and allowances, and reduction to the grade of E-1. On
appeal, appellant questions the fitness of a panel member, Lieutenant Colonel (LTC)
Bergman, to serve on his panel. Alternatively, given that LTC Bergman was never
voir-dired or challenged on the issue that appellant now claims disqualifies him,
appellant claims his counsel was ineffective for not raising the issue at trial. 2

                                  BACKGROUND

                                    A. The Assault

       As the evidence in this case is central to our prejudice analysis, we provide a
detailed description and assessment of the evidence.

       In the early morning hours of 11 May 2014, appellant, TM, and a mutual
friend and fellow soldier played drinking games and drank substantial amounts of
alcohol. Appellant and TM had no prior romantic relationship. The third soldier
would later leave after drinking himself into a stupor and vomiting in the bathroom.
As a result, and while he testified for both sides, he had little recollection of what
happened on the night of the alleged assault. Both TM and appellant would testify
as to what happened next—providing versions of what happened that were
substantially different in key respects.

        TM testified appellant tried to kiss her and she rejected his advance. She then
asked him to leave the room, which he did, but only after slamming a chair into a
table. She then texted her platoon sergeant, Staff Sergeant (SSG) Ray and went to
sleep. TM lived in a first floor barracks room, and her bed was located next to the
window. She then awoke to appellant climbing through her window. According to
TM, appellant climbed on top of her while she initially tried to push him off. She
testified appellant then vaginally sexually assaulted her with his penis while she was


2
  In a supplemental assignment of error, appellant asserts the military judge’s
instructions on the elements of sexual assault (which mirrored the Military Judge’s
Benchbook instructions) failed to properly advise the panel on the mens rea needed
to commit the offense in light of Elonis v. United States, 135 S. Ct. 2001 (2015). As
appellant affirmatively stated he had no objection to the instructions, any objection
was at least forfeited if not waived. United States v. Davis, 76 M.J. 224 (C.A.A.F.
2017). Assuming forfeiture, any error did not amount to plain error as the error was
neither plain and obvious, nor was it prejudicial. Evidence of appellant’s guilt was
substantial. Additionally, appellant’s defense was actual consent, not mistake of
fact to consent. Appellant testified TM initiated every sexual act and was the sexual
aggressor. Appellant’s testimony left no room for the theory he had mistakenly
(whether negligently or recklessly) believed TM had consented. In other words, this
was not a case where appellant had an innocent or even negligent state of mind.

                                           2
LAZCANO—ARMY 20150354

crying, in pain, and telling him to stop. Appellant then got off of her, grabbed baby
wipes from TM’s bathroom, and then wiped her genitals causing a burning sensation
on her genitals.

      TM further testified that after cleaning her genitals, appellant again assaulted
her while she continued to cry and asked for her father. Her next memory was of her
platoon sergeant coming to her aid and vague recollections of being in the hospital.

      The government corroborated TM’s story with the testimony of several
witnesses. 3

       TM’s platoon sergeant, SSG Ray, authenticated several text messages he
received from TM during the course of the night. 4 The texts included an unclear
message about how “he” had told her to lay down since “he has baby wipes.” She
then texted him “please help me I don’t want it to happen again.”

       After receiving that last message TM’s platoon sergeant testified he drove to
the barracks in the pre-dawn hours. While en route, he tried to call her repeatedly.
At one point, the call connected and he could overhear in the background TM
screaming and crying while saying “no, no, no, I want my daddy” with a male voice
in the background saying something unintelligible. Upon arriving at the barracks
TM’s platoon sergeant saw a Hispanic male with a build similar to appellant glance
over his shoulder, and take off out of the barracks. Staff Sergeant Ray testified upon
entering TM’s room, he found her crying and hysterical. He then called the military
police.




3
  In addition to the evidence we describe, a U.S. Army Criminal Investigation
Command (CID) special agent testified TM’s DNA was found in appellant’s
underwear and there were two sets of unidentifiable fingerprints on TM’s window
sill. The fingerprints were oriented in a manner consistent with someone climbing
into the room from the outside. However, we do not address this evidence in depth
as appellant’s defense at trial was consent and there was evidence that both appellant
and TM had climbed through the window.
4
  TM texted her platoon sergeant at 0338 and asked why her platoon sergeant and her
squad leader were not inspecting her room anymore and asked why the squad leader
wasn’t checking her room at that time. Staff Sergeant Ray appeared to have found
these initial texts confusing. Then, in a non-sequitur from her platoon sergeant’s
perspective, she texted her platoon sergeant “he told me to lay down since he has
baby wipes.” At 0407 she again texted her platoon sergeant “please help me I don’t
want this to happen again.”

                                          3
LAZCANO—ARMY 20150354

       Private (PVT) Smith was sleeping in the room next to TM. Having gone to
bed early, PVT Smith woke up in the middle of the night to “a lot of ruckus” coming
from TM’s room. She testified she heard “a bunch of crying and like a lot of
movement, and [TM] saying [n]o, and stuff like that.” Private Smith clarified she
heard TM saying “No,” more than once and heard her say “stop.” Private Smith did
not investigate what was happening to her neighbor.

       The government also admitted the observations and statements of TM taken
during a medical examination conducted by a sexual assault nurse examiner (SANE)
that same morning. The examination revealed genital abrasions. Although by the
time of trial TM would have only a limited recall of the exam, the nurse took
detailed notes which were admitted into evidence. TM told the examiner she had
feared appellant would do something and texted her platoon sergeant asking for
someone to stop by the barracks. She said she tried to call her platoon sergeant, but
appellant walked in, threw her phone away from her, grabbed her by the hair and
threatened to “fuck the bitch out of me.” At that point, the nurse’s notes stated TM
became tearful, pulled a blanket around her, and began rocking back and forth in her
chair.

      Appellant called two witnesses who contradicted parts of TM’s story.
Specialist (SPC) Garcia testified that the morning after the assault TM told her she
had been sexually assaulted by appellant, but that TM stated appellant had fled
through the window not the door as she had testified at trial. Sergeant (SGT)
Sanders, whose testimony is detailed below, contradicted TM’s testimony about
appellant grabbing TM’s arm a few months before the alleged assault.

        Appellant then testified in his defense. According to appellant, TM had
flirted with him all evening. Once they were alone, appellant stated TM initiated
both oral and vaginal sex. Appellant denied fleeing the scene, and said he returned
to his barracks room hours before TM’s platoon sergeant arrived.

       Appellant attempted to corroborate his testimony with a recording he made
while in TM’s room. He stated that during the middle of consensual sexual
intercourse he needed to urinate and explained what happened next as follows:

             So at that point, I felt the need to urinate, which - - what
             we would call “break the seal.” So I got up, I went to the
             restroom, and on the way back, I find her hanging out of
             the window halfway. For what reason, I don’t know. And
             I - - that’s whenever she comes back from the windowsill
             and she has her phone; she’s on the phone with somebody.
             And when she turns around I take the phone from her, the
             screen illuminates and I automatically see “Staff Sergeant


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LAZCANO—ARMY 20150354

             Ray” on her call log. 5 And they’re still on the phone, so
             right then and there, I really don’t know what to think. I
             don’t know if something’s going on between them or
             something is about to happen, so I automatically—what I –
             I had my phone in my pocket, tried to take it out and . . .
             took a video recording.

       In the video, appellant’s fingers are covering the camera for almost the entire
recording. In substance, appellant introduced an audio recording. The recording
captures TM telling her platoon sergeant “nothing is going on, I’m not freaking out
it’s good. We’re good.” The recording then captures appellant whispering to TM
“You were drunk. You were drunk. We good.” TM then strangely denies to
appellant she called or texted anyone. Appellant tells TM he heard her “calling
somebody and you were crying.” She then twice again denies calling or texting
anyone.

       Overall, appellant’s surreptitious recording did not advance his defense.
Under his theory of events, he recently engaged in oral and vaginal intercourse with
TM that was completely consensual and at her initiation. While he was briefly in
the bathroom, TM in the early morning hours leans out the window (where she
would be less likely to be heard by appellant) and calls her platoon sergeant.
Appellant then takes her phone away and sees who she is talking to. Only then does
he begin to record the conversation. Confronted with her attacker, she then tells her
platoon sergeant everything is fine, with appellant whispering a “you’re drunk”
explanation for the late-night call. The recording is entirely consistent with the
government’s theory of a sexual assault victim calling for help while her attacker
was in the bathroom, but getting off the phone when her attacker comes back in the
room and offering denials (if drunk and implausible ones) for making a phone call.
And, in any event, even if in the recorded part of the conversation TM tells her
platoon sergeant everything is “good,” the combined effect of all her texts and calls
to SSG Ray nonetheless causes him sufficient concern that in the middle of the night
he drives onto post because he believes one of his soldiers is in distress.

      Under cross-examination by the trial counsel, appellant admitted the date-time
information of the phone calls would indicate he was in TM’s room moments before
SSG Ray would arrive. This testimony was consistent with SSG Ray’s testimony he
saw someone matching appellant’s description fleeing the barracks. It was,
however, contrary to appellant’s earlier direct testimony of having left TM’s room
hours before SSG Ray arrived.



5
  On cross-examination appellant would inexplicably deny he ever took the phone
from TM.

                                           5
LAZCANO—ARMY 20150354

        Additionally, appellant would explain on cross-examination this video was not
disclosed during pretrial discovery because he only remembered he had this
recording the night prior to testifying. 6 Appellant explained he recently purchased a
new phone and was reviewing videos from his old phone that had been uploaded to
this phone and rediscovered the recording. That is, after surreptitiously recording
his conversation with TM, he forgot about the recording’s existence throughout the
trial preparation until the night before he was going to testify.

       Finally, trial counsel confronted appellant with his conflicting statements to
law enforcement. While at trial appellant claimed TM had not been drunk, he told a
CID agent that she was “lit,” “gone” and “[s]he was gone, like drunk, stumbling and
everything.” Trial counsel also confronted appellant with his prior statement in
which he denied ever having intercourse with TM, then admitted to light touching,
then admitted to trying to have sexual intercourse but without penetration, and
finally admitted to sexual intercourse.

                 B. Disqualification of Lieutenant Colonel Bergman

        Appellant’s first assigned error is that one of the panel members, LTC
Bergman, was biased against him. This issue was never raised or discussed at trial,
and accordingly the factual basis for appellant’s claims are contained in affidavits
submitted on appeal. Some additional factual background is necessary to understand
this issue.

                 1. Trial Testimony of Sergeant First Class Sanders

       Sergeant First Class (SFC) Sanders was appellant’s platoon sergeant during
the time period of the charged offense. The defense called SFC Sanders to testify
during both merits and sentencing. His total testimony took up just over ten pages
of the record.

      During merits, the defense added SFC Sanders at the last minute to the
witness list to rebut a claim by TM. She had testified about an encounter with
appellant on Valentine’s Day 2014—about three months prior to the charged offense.


6
  Perhaps for tactical reasons, the government did not object to the introduction of
the recording. In our review of the video, there is some evidence from which one
could draw an inference that the end of the video was edited to be prematurely cut
short. TM’s statement that appellant then threatened to “fuck the bitch out of her,”
if made, would have happened after the video ended. The video introduced was
never authenticated by a witness (i.e., whether the video introduced at trial had been
altered). Nonetheless, given the amount of evidence in the case it is not necessary
for us to determine how to weigh any inference definitively.

                                          6
LAZCANO—ARMY 20150354

TM stated she was briefly left alone with appellant in his room. TM testified
appellant “started to pull me by the arm to his bed,” saying “I’m single and you’re
single” and he didn’t let go of her arm until somebody knocked on the door.

       The defense called SFC Sanders to testify that in his opinion appellant could
not have been in his barracks room on Valentine’s Day 2014. He testified he was
married on Valentine’s Day 2014 and had several members from the unit attend the
ceremony. Although he offered no personal knowledge of appellant’s whereabouts
on Valentine’s Day, he testified the remainder of the platoon was in the field in the
middle of a four to six-week exercise at the range. 7 Sergeant First Class Sanders
offered no testimony directly relating to the charged offense.

      In sentencing, SFC Sanders offered his opinion appellant was a good soldier,
was proficient in his military occupational specialty (MOS), performed well during a
deployment, was resilient, and had high potential for rehabilitation.

                             2. Additional Facts on Appeal

       On appeal, both parties submitted affidavits. Appellant submitted an affidavit
from SFC Sanders, who stated when he was called to testify during findings he
recognized one of the panel members, LTC Bergman. He stated “a few months”
prior to trial he attended Air Assault School with LTC Bergman. During the course,
SFC Sanders served as the class leader. He stated “at some point” LTC Bergman
reported him to his chain of command for having an “inappropriate relationship”
with another soldier. He further stated an investigation determined the allegation
was unfounded. Sergeant First Class Sanders stated he “noticed LTC Bergman was a
member of the panel and informed the trial defense team of the issue.”

       Appellant requests an evidentiary hearing in order to resolve undeveloped
facts in the record. The affidavits received on appeal do not explain the nature of
the alleged inappropriate relationship or what caused LTC Bergman to report SFC
Sanders for having an inappropriate relationship. While SFC Sanders speculates
LTC Bergman likely recognized him, the converse is also possible. We have no
information from LTC Bergman one way or the other about whether he recognized
SFC Sanders or how he felt about him. While SFC Sanders’s affidavit is unclear
about exactly when he told the defense team of his concerns, the affidavit from the
military defense counsel indicates SFC Sanders relayed his concerns during
presentencing phase of the court-martial. While there are factual omissions in the
affidavits, they are not necessarily contradictory, and we will assume the facts
conveyed in SFC Sanders’ affidavit are true. United States v. Ginn, 47 M.J. 236,
243 (C.A.A.F. 1997).


7
    We would take judicial notice Valentine’s Day 2014 was a Friday.

                                           7
LAZCANO—ARMY 20150354

                                      3. Voir Dire

       During voir dire, neither party asked the panel members if they knew any of
the witnesses. While SFC Sanders was not a planned merits witness, he was
expected to testify as a sentencing witness. All the panel members were asked the
standard questions, including whether: “any members of the court are aware of any
matter in which he or she believes may be a ground [for] challenge by either side?”
and “[i]s any member aware of any matter that might raise a substantial question
concerning your participation in this trial as a court member?” Lieutenant Colonel
Bergman answered “no” to both questions. Appellant did not challenge LTC
Bergman for cause and did not exercise a preemptory challenge.

                               LAW AND ANALYSIS

                                   A. Panel Members

        To obtain relief for an incorrect answer to a voir dire question a party must
first demonstrate 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. The motives for concealing information may vary, but only
those reasons that affect a juror’s impartiality can truly be said to affect the fairness
of a trial. McDonough Power Equip. v. Greenwood, 464 U.S. 548, 556, 104 S. Ct.
845, 850 (1984). However, “a juror’s mistaken, though honest, response to a
question” is insufficient to warrant a new trial as it would require an “insist[ance] on
something closer to perfection than our judicial system can be expected to give. Id.

       The CAAF adopted McDonough in United States v. Mack, 41 M.J. 51, 55
(C.A.A.F. 1994). In United States v. Sonego, the CAAF determined that upon a
showing of “a colorable claim of juror dishonesty” an appellant is entitled to an
evidentiary hearing. 61 M.J. 1, 4 (C.A.A.F. 2005). Accordingly, for purposes of
determining whether appellant has established a colorable claim we assume arguendo
the facts contained in the affidavits submitted by appellant are true. See, e.g.,
United States v. Sowinski, NMCCA 200202260, 2005 CCA LEXIS 260, at *9 (N-M
Ct. Crim. App. Aug. 18, 2005) (applying Sonego). However, we do not direct an
evidentiary hearing to resolve alleged facts that are conclusory or speculative. Ginn,
47 M.J. at 243. As we may decide this issue without resolving disputed facts, no
post-trial hearing is necessary. Id.

       Appellant argues LTC Bergman should not have sat as a panel member in
appellant’s trial because of his previous encounter with SFC Sanders. As LTC
Bergman was never questioned about whether he knew SFC Sanders and was never
challenged for cause, appellant frames this issue as a sua sponte duty for LTC
Bergman to report his disqualification once he saw SFC Sanders testify. More
precisely, appellant argues LTC Bergman’s answer to the general voir dire questions

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LAZCANO—ARMY 20150354

–while true at the time—became dishonest once he saw SFC Sanders testify.
Appellant cites United States v. Albaaj in support of his argument. 65 M.J. 167
(C.A.A.F. 2007).

                              1. United States v. Albaaj

       In Albaaj, a panel member had been asked during voir dire if he knew a
particular witness. The witness was the brother of the accused and had worked
directly for the panel member for a substantial period of time. The witness also had
the relatively unique name of “Emad.” The panel member denied knowing the
witness. Additionally, the CAAF summarized that the panel member’s prior
relationship with the witness was “openly antagonistic” towards the witness and had
“questioned his honesty as recently as fifteen weeks before the court-martial.” Id. at
171.

        The CAAF in Albaaj did not directly address whether the panel member had
answered any voir dire question dishonestly—although that would be a fair inference
from their summary of the case. 8 Instead, the CAAF determined where we are
dealing with a witness who is a brother of the accused, there is a risk the member
might impart his feelings about the witness to the accused. Those factors, when
combined with [the panel member’s] subsequent failure to disclose the relationship
even after he realized his earlier response was incorrect, raises concerns about the
impartiality of this member and the resultant fairness of the proceeding. A
“reasonable public observer” of Albaaj’s court-martial would conclude the panel
member’s actions “injured the perception of fairness in the military justice system.”
Id. at 171.

      Appellant cites Albaaj for the principle panel members have a duty to inform
the court-martial when they realize after the fact their answers to voir dire questions
were incorrect. Indeed the CAAF in Albaaj stated: “If a court member learns of
information during the trial which makes an earlier response to a voir dire question
inaccurate, the member should so advise the court.” Id. at 170. The court
continued, “[t]he duty of candor does not stop at the end of voir dire but is an
obligation that continues through the duration of the trial.” Id.

      Applied to this case, appellant asserts LTC Bergman, upon seeing SFC
Sanders, had a duty to report to the court-martial his answers to the broad voir dire


8
  A military judge found as fact the panel member initially answered the voir dire
question honestly, even if incorrectly. The judge also found the panel member’s
failure to correct his answer was not done in bad faith. With these factual findings,
Albaaj determined the panel member should have corrected his mistake upon
realizing it—regardless of the absence of bad faith.

                                           9
LAZCANO—ARMY 20150354

questions were incorrect. More specifically, appellant argues LTC Bergman had a
duty to correct his answer to the general question of whether he was aware of any
matter that might raise a substantial question as to his fairness.

      We find this case distinguishable from Albaaj for several reasons.

       First, in Albaaj, when the panel member stated he did not know a witness
named Emad, this answer was false at that time. While it might have been
unintentionally incorrect, it was nonetheless incorrect. Here, appellant does not
assert LTC Bergman’s answer to any question was incorrect at the time he gave it.
Rather, appellant asserts that LTC Bergman’s answer to broad questions, although
factually accurate at the time he gave them, became incorrect when the defense
decided to call SFC Sanders in the middle of trial.

       Second, in Albaaj, the panel member was asked if he knew a specific witness
with an unusual name. Here, neither party chose to voir dire the panel members on
the potential witnesses and explore whether any panel member harbored any
disqualifying biases or prejudices against the witnesses. Rather, appellant relies on
the broad questions (asked as part of the standard “trial script”) whether there was
any reason why the panel member should not sit. Dep’t of the Army, Pam. 27-9,
Legal Services: Military Judges’ Benchbook [hereinafter Benchbook], para. 2-5-1,
Question 28 (10 Sept. 2014). Because appellant asks us to apply Albaaj to these
broad general questions, Albaaj would essentially require the panel member to self-
identify any issue which might be a basis for challenge. Abaaj rejects this very
premise. “The duty to disclose cannot be dependent upon the court member’s own
evaluation of either the importance of the information or his ability to sit in
judgment.” Albaaj, 65 M.J. at 170. Indeed, the focus of Albaaj is on a panel
member’s response to “direct questions on voir dire” not general questions. Id.

       Third, the witness in this case had a substantially different relationship with
the panel member than in Albaaj. In Albaaj, the witness was the brother of the
accused, which raised the concern any ill-will directed at the witness would be
transferred to the accused. By contrast, SFC Sanders testified only to his
professional interactions and observations of the accused. Also, in Albaaj, the panel
member had a long history and an antagonistic relationship with the witness.
Whereas here, there is a single (eventually unfounded) report that SFC Sanders
engaged in an inappropriate relationship. Additionally, in Albaaj, the panel member
had previously commented on the integrity of the witness—a factor that is key to a
panel member’s weighing of the testimony. While the differences in these cases are
ones of degree, not kind, they are significantly distinguishable from Albaaj.

       Fourth, expanding the scope of Albaaj, as appellant’s reading of the case
requires, calls into question the CAAF’s subsequent decision in United States v.
McFadden, 74 M.J. 87 (C.A.A.F. 2015). In that case, the CAAF clearly stated a

                                          10
LAZCANO—ARMY 20150354

military judge has no sua sponte duty to excuse a panel member even when the
military judge hears information which might be grounds for challenge. Id. at 88,
90. Although the comparison of the issues in the two cases is not squared on all four
corners, it would be an odd result if there were an apparently greater burden on
panel members than military judges to bring the factual basis for a potential
challenge for cause to the parties’ attention.

       Fifth, and relatedly, the rules require “[t]he party making a challenge shall
state the grounds for it” and “[t]he burden of establishing that grounds for challenge
exist is upon the party making the challenge.” Rule for Courts-Martial [hereinafter
R.C.M.] 912(f)(3) (emphasis added). The burden on the moving party would be
effectively shifted to the panel member to provide the grounds for challenge under
appellant’s reasoning. For appellant’s read of Albaaj to be correct, a panel member
would be expected to disclose all bases for challenge as a result of the single broad
question of whether there is “any” reason why the panel member should not sit.

       Finally, and most importantly, appellant’s reading of Abaaj would be contrary
to the Supreme Court’s decision in McDonough, which was adopted by the CAAF in
Mack:

             A trial represents an important investment of private and
             social resources, and it ill serves the important end of
             finality to wipe the slate clean simply to recreate the
             peremptory challenge process because counsel lacked an
             item of information which objectively he should have
             obtained from a juror on voir dire examination.

      McDonough, 464 U.S. at 555, 104 S. Ct. at 849-50. That is, McDonough and
Mack do not apply in circumstances where the factual basis for a challenge “should
have [been] obtained from a [panel member] on voir dire examination.” Id. The
defense could have asked if any panel member knew SFC Sanders, but did not. Put
yet another way, the information at issue here is “objectively” something appellant
“should have obtained from [the panel member] on voir dire examination.” Id.

                            2. United States v. Commisso

       After briefs and oral argument in appellant’s case, our superior court decided
United States v. Commisso, 76 M.J. ___, No. 16-0555/AR (C.A.A.F. 26 June 2017).
In this case, the CAAF held that the military judge abused his discretion by not
granting a post-trial motion for a mistrial when three of the panel members
mistakenly stated they had no prior knowledge of the case and failed to correct their
answers to those questions during the course of the trial. Id. at *3.



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LAZCANO—ARMY 20150354

       We find it difficult to understand Commisso and McDonough together.
McDonough says an honest but mistaken answer is not enough to warrant a new trial.
464 U.S. at 555. Commisso says the exact opposite and defines “dishonest” as
failing to give “objectively correct answers.” 76 M.J. ___ at *10 (“But the test for
member dishonesty is not whether the panel members were willfully malicious or
intended to deceive—it is whether they gave objectively correct answers.” (citing
Albaaj, 65 M.J. at 170)).

       In short, while one can trace Commisso through an unbroken line of cases
(Albaaj and Mack) directly back to the Supreme Court’s decision in McDonough, we
appear to arrive at the opposite conclusion of where we started. It is clear under
McDonough, an honest but mistaken answer to a voir dire question does not warrant
a new trial. It is also clear under Commisso, a mistaken answer, whether or not it is
intentionally false, may be grounds for a mistrial.

      We can reconcile Commisso and McDonough two ways.

      The first is to say that Commisso is really a case about a military judge
abusing his discretion in not granting a mistrial. That is, though still a high burden,
the appellant in Commisso faced an easier burden in showing a mistrial should have
been granted than he would have faced in showing a constitutionally unfair trial
under McDonough. Applied to this case, as there was never a motion for a mistrial
and the military judge was never made aware of the issue we address on appeal,
Commisso would not be particularly persuasive.

       Or second, and we think this is the more likely, military law has now parted
ways from McDonough. McDonough is a case about a civilian jury. While courts-
martial resemble civilian criminal trials in most respects, when it comes to the
selection and seating of panel members we remain fundamentally different. See
generally, Article 25, UCMJ. Accordingly, military justice has aggressively applied
the doctrine of implied bias for panel member selection, has developed the liberal
grant mandate for defense challenges, and has reviewed the decisions of trial judges
in such cases with something substantially less than discretion. See generally United
States v. Rogers, 75 M.J. 270 (C.A.A.F. 2016) (discussing implied bias); United
States v. Woods, 74 M.J. 238 (C.A.A.F. 2015) (discussing the liberal grant mandate);
United States v. Peters, 74 M.J. 31 (C.A.A.F. 2015) (a military judge is afforded less
deference if an analysis of the implied bias challenge on the record is not provided).
In short, given the different manner in which we select panel members, we also
apply different appellate standards when reviewing panel member selection. In this
regard, Commisso is consistent with a large body of military law that watches
carefully over the selection of panel members at courts-martial.

       However, even under this more favorable standard in Commisso appellant
falls short. All of LTC Bergman’s answers to voir dire questions were objectively

                                          12
LAZCANO—ARMY 20150354

true when he gave them. As we explained above, for appellant’s argument to be
correct it would mean that a party would only need to ask a single question of each
panel member. It would then be on the panel member to identify and voice any
reason why he or she should not be seated as a panel member. This directly
contradicts the CAAF’s guidance that panel members do not determine their own
qualifications. 9

      Accordingly, we fail to find that appellant has met his burden under Albaaj,
Commisso, and Sonego to establish a colorable claim that a panel member answered a
question dishonestly. Here, LTC Bergman was never asked if he knew SFC Sanders.
A panel member cannot dishonestly answer a question that is never asked.

       Instead, we believe appellant’s claim of error is best framed as one of
ineffective assistance of counsel. And, accordingly, it is the issue we next address.

                         B. Ineffective Assistance of Counsel

       Appellant asserts his counsel were ineffective where, after being informed by
SFC Sanders of his prior interaction with LTC Bergman, they failed to take any
positive action. More specifically, appellant asserts that counsel 1) should have
notified the court of the issue; 2) should have requested voir dire and challenged
LTC Bergman; and 3) failed to properly preserve the issue for appeal.

      To prevail on an ineffective assistance claim, appellant bears the burden of
proving that the performance of defense counsel was deficient and that the appellant
was prejudiced by the error. Strickland v. Washington, 466 U.S. 668, 698 (1984).



9
  However, our superior court has now twice stated panel members have a continuing
duty of candor to tell the court-martial upon discovering they answered prior
questions mistakenly or dishonestly. We would suggest amending the standard trial
script in the Benchbook to inform them of this duty at the completion of voir dire.
Given the decorum and formalities, such an instruction would guide any panel
member who might be unclear as to how to bring such a matter to the attention of the
military judge. Additionally, panel members view their service as a panel member
as a solemn duty. Such an instruction would make clear it is their duty to inform the
military judge of issues and would ameliorate any concern that a member is trying to
avoid service by raising an issue to the military judge’s attention. As we on appeal
will hold them to a duty to self-report issues in cases like Albaaj and Commisso,
there certainly can be no harm in instructing them as such. A specific instruction
will assist in overcoming any residual hesitancy as well as tell them the manner of
how to bring matters to the military judge’s attention without informing the other
panel members of the potentially disqualifying information.

                                          13
LAZCANO—ARMY 20150354

      With respect to Strickland’s first prong, courts “must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” 466 U.S. at 689.

       As to the second prong, a challenger must demonstrate “a reasonable
probability that, but for counsel’s [deficient performance] the result of the
proceeding would have been different.” Id. at 694. “[T]he question is whether there
is a reasonable probability that, absent the errors, the factfinder would have had a
reasonable doubt respecting guilt.” Id. at 695. “It is not enough to show that the
errors had some conceivable effect on the outcome.” United States v. Datavs, 71
M.J. 420, 424 (C.A.A.F. 2012) (emphasis added).

       We briefly address the first and last allegation of deficient performance by
counsel. Appellant first argues his counsel were deficient in not raising concerns
about LTC Bergman to the military judge. We see no possible deficient performance
by counsel that is not subsumed by appellant’s next claim that counsel should have
voir dired and challenged LTC Bergman. As a military judge has no sua sponte duty
to voir dire or challenge panel members, McFadden, 74 M.J. at 90, simply telling the
judge of a possible issue with a panel member would not result in any relief.
Obviously, however, in requesting to voir dire and challenge a panel member,
counsel simultaneously notify the court of the basis for their request. Accordingly,
we see this allegation of deficient performance as entirely wrapped into the
appellant’s claim his counsel should have voir dired and challenged LTC Bergman.

       Likewise, we see no possible ineffective assistance from the failure of counsel
“to preserve” the issue on appeal as we see no requirement for preservation. Here,
appellant argues his counsel erred in not submitting a sworn declaration from SFC
Sanders to the convening authority. Appellant’s military defense counsel did
however raise the SFC Sanders issue as legal error in post-trial matters he submitted
to the convening authority under R.C.M. 1105. Appellant cites United States v.
Lofton, 69 M.J. 386, 391 (C.A.A.F. 2011), for the proposition the convening
authority is not required to grant post-trial hearings based on unsworn
unsubstantiated statements. True enough. However, we do not agree with appellant
that counsel “fail[ed] to properly preserve the issue for appeal.” On appeal,
appellant provided us with an affidavit. See United States v. Cade, 75 M.J. 923, 929
(Army Ct. Crim. App. 2016). We do not see how the absence of sworn affidavits in
appellant’s R.C.M. 1105 matters forfeits or affects any issue on appeal or affects our
review on appeal. As the discussion to R.C.M. 1105(c)(4) states an “accused is not
required to raise objections to the trial proceedings in order to preserve them for
later review.”

       Accordingly, we now turn to the central issue in appellant’s claim of error:
the failure of appellant’s defense counsel to voir dire and challenge LTC Bergman


                                         14
LAZCANO—ARMY 20150354

after SFC Sanders informed the defense team of his prior contact with LTC
Bergman.
                             C. Deficient Performance

       After SFC Sanders informed the defense counsel LTC Bergman previously
reported him for having an inappropriate relationship, the defense counsel had
several options. There was risk in each direction.

       First, the defense could have sought discovery from the government on the
result of the investigation into SFC Sanders’ allegedly inappropriate relationship.
This course of action would have allowed the defense team to develop facts that
would inform their next steps without subjecting LTC Bergman to a mid-trial voir
dire which might only serve to highlight the issue for LTC Bergman. However, this
option would have also informed the trial counsel of allegations of misconduct
against the defense’s only active duty sentencing witness who was to testify about
appellant’s good duty performance and potential for rehabilitation.

       Second, the defense could have sought to question LTC Bergman about any
bias he may have had towards SFC Sanders. Appellant would have had the burden
of establishing the factual basis for the grounds for challenge. R.C.M. 912(f)(3).
A successful challenge would have ensured a biased member would not determine
appellant’s sentence and would also have been grounds for a subsequent mistrial
motion. On the other hand, an unsuccessful challenge would have also presented
some risk and would again have notified the government of the allegation of
misconduct against the only active duty sentencing witness.

        A third option was to do nothing, perhaps saving the issue for post-trial and
possibly appeal. This course would have been an appetizing option if counsel
viewed SFC Sanders’ importance to the case during findings as low (i.e., unlikely to
result in a mistrial). As stated above, SFC Sanders’ testimony during findings was
limited to recounting that appellant was supposedly in the field on the Friday night
of Valentine’s Day 2014. 10 This testimony refuted TM’s testimony regarding an
encounter she claimed she had with appellant several months prior to the assault, but
did not directly address the charged offense. This option also allowed the defense
not to disclose unfavorable information to the government about a defense
sentencing witness. The risk of this option was obvious and potentially great as it
left the panel member unchallenged.


10
  Even as to this testimony, SFC Sanders stated his knowledge of appellant’s
whereabouts appears limited to knowing that appellant’s unit was at the range for a
four to six week period that included Valentine’s Day. He did not appear to have
any personal knowledge of appellant’s location as he testified it was his wedding
day, and appellant was not at his wedding.

                                         15
LAZCANO—ARMY 20150354

       Appellant’s counsel did nothing. They did not request discovery, request
additional voir dire of LTC Bergman, or take any other action. Note, however, we
did not state that appellant’s counsel “chose” to do nothing. The affidavits from
appellant’s counsel submitted by the government do not claim any tactical reason for
their inaction. Indeed, appellant’s military defense counsel gratuitously stated “I do
not believe there was any tactical reason for not requesting further voir dire.”

       This scenario presents us with somewhat of a conundrum. We are required to
determine whether counsel’s “representation falls ‘below an objective standard of
reasonableness.’” United States v. Akbar, 74 M.J. 364 (C.A.A.F. 2015) (citing
Wiggins v. Smith, 539 U.S. 510, 521 (2003). From the record, it appears there may
be reasonable tactical reasons why appellant’s counsel could have chosen not to voir
dire LTC Bergman, but they subjectively did not consider them. Put as a question:
can counsel be deficient under Strickland if they mistakenly choose a course of
action a competent counsel may have also chosen? If two attorneys are presented
with the same issue, and choose the same course of action, is it possible that one
provided constitutionally deficient counsel and the other was competent?

      In Harrington v. Richter, 562 U.S. 86 (2011) the Supreme Court appears to
have answered our question. The Ninth Circuit set aside Richter’s conviction and
found his counsel was ineffective because “[i]n his deposition, [the defendant’s]
counsel was unable to provide any reasoned explanation for failing to consult
forensic experts or to seek expert testimony in order to corroborate his client’s
testimony or prepare to rebut the prosecution’s case.” Richter v. Harrington, 578
F.3d 944, 958-59 (9th Cir. 2009), rev’d sub nom. Harrington v. Richter, 562 U.S. 86
(2011).

       The Ninth Circuit Court went on to state when defense counsel gives “no
strategic reason for failing to perform what would otherwise constitute the duty of a
reasonably competent counsel, we may not invent such a strategy by engaging in a
post hoc rationalization of counsel’s conduct in lieu of relying on an accurate
description of counsel’s deliberations prior to trial.” Richter, 578 F.3d 959 (internal
citations and quotations omitted).

       Without dissent, the Supreme Court rejected the Ninth Circuit’s reasoning. 11
The Supreme Court considered several reasons why the defense counsel might have
acted as he did. After offering several reasons why the counsel could have
reasonably made the trial decisions he did, Justice Kennedy explained the error of
the circuit court’s reasoning:



11
 Justice Ginsberg concurred in the result. Justice Kagan did not participate.
Harrington, 562 U.S. at 90.

                                          16
LAZCANO—ARMY 20150354

             The Court of Appeals erred in dismissing strategic
             considerations like these as an inaccurate account of
             counsel’s actual thinking. Although courts may not
             indulge “post hoc rationalization” for counsel’s decision
             making that contradicts the available evidence of
             counsel’s actions, Wiggins, supra, at 526-527, 123 S. Ct.
             2527, 156 L. Ed. 2d 471, neither may they insist counsel
             confirm every aspect of the strategic basis for his or her
             actions. There is a “strong presumption” that counsel’s
             attention to certain issues to the exclusion of others
             reflects trial tactics rather than “sheer neglect.”
             Yarborough v. Gentry, 540 U.S. 1, 8, 124 S. Ct. 1, 157 L.
             Ed. 2d 1 (2003) (per curiam).

Harrington, 562 U.S. at 109-10. The Court then addressed the fact that Richter’s
own counsel had not offered any reasoned explanation for failing to seek expert
assistance:

             After an adverse verdict at trial even the most experienced
             counsel may find it difficult to resist asking whether a
             different strategy might have been better, and, in the
             course of that reflection, to magnify their own
             responsibility for an unfavorable outcome. Strickland,
             however, calls for an inquiry into the objective
             reasonableness of counsel’s performance, not counsel’s
             subjective state of mind. 466 U.S. at 688, 104 S. Ct. 2052,
             80 L. Ed. 2d 674.

Harrington, 562 U.S. at 109-10.

       Here, while we acknowledge appellant’s counsel avers he “cannot think of a
tactical reason” for his actions, this action or inaction is not dispositive on the issue
of whether his conduct was constitutionally deficient. Under Harrington, we do not
focus on his subjective after-the-fact evaluation of his own performance, but rather
look at his conduct objectively. Just as we would reject an objectively unreasonable
claim a trial decision was made for tactical or strategic purposes, we must also reject
a subjective claim disavowing a tactical reason for a trial decision if the decision
was objectively reasonable and supported by the facts in the record.

       Ultimately, however, we decline to determine whether appellant’s counsel’s
performance was constitutionally deficient as we can resolve the issue on
Strickland’s second prong. That is, notwithstanding our detailed discussion above,
we do not determine whether the defense team’s conduct was objectively reasonable
under the circumstances. Strickland 466 U.S. at 697 (“[a] court need not determine

                                           17
LAZCANO—ARMY 20150354

whether counsel’s performance was deficient before examining the prejudice
suffered by the [appellant] as a result of the alleged deficiencies.”). Our concern
here is the lack of briefing by the parties.

      Turning to prejudice, we do not find appellant has met his burden.

       The parties disagree as to how we should determine prejudice. The
government argues we should determine appellant failed to meet his burden of
establishing prejudice as there is no evidence that LTC Bergman was biased.
Indeed, there is no evidence that LTC Bergman recognized SFC Sanders at all. The
difficulty of the government’s position is it invites us to order a hearing pursuant to
United States v. Dubay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967) [hereinafter
DuBay hearing], to answer these questions.

       In contrast, appellant inserts an implicit bias test for challenges for cause into
the prejudice prong under Strickland and argues as follows: “[T]he information
provided to the defense counsel provided a valid challenge for cause against LTC
Bergman: a reasonable public observer would question the fairness of the military
justice system in a sexual assault case where a panel president recently accused a
key defense witness of having an inappropriate relationship.” 12

       We understand this argument to mean appellant will have established
prejudice if he can demonstrate: 1) a challenge for cause would have been granted
because the panel member was implicitly biased against a defense witness; and 2)
the witness was “key” or material. At least as we have reframed it, we agree with
appellant’s position. There is no prejudice to appellant if the challenge for cause
would not have been granted. There is no prejudice to appellant if the witness is
tangential, cumulative, or not material. Or, framed as Strickland requires, appellant
must demonstrate “a reasonable probability that, but for counsel’s [deficient
performance] the result of the proceeding would have been different.” United States
v. Datavs, 71 M.J. 420, 424 (C.A.A.F. 2012) (citing Strickland, 466 U.S. at 694).

       Indeed, in Weaver v. Massachusetts, the Supreme Court made clear even in
cases of forfeited structural error, appellant has the burden of proving prejudice in
the context of an ineffective assistance of counsel claim. Weaver v. Massachusetts,
No. 16-240, slip. op. at 18-19 (U.S. June 22, 2017):



12
  The defense counsel only became aware of the issue during sentencing. That is,
counsel could not be ineffective for failing to raise the issue unknown to him during
findings. At oral argument, appellant wrapped the guilty finding into the ineffective
assistance issue by claiming that the defense should have asked for a mistrial during
sentencing. However framed, we see the core legal issues to be the same.

                                           18
LAZCANO—ARMY 20150354

            The question then becomes what showing is necessary
            when the defendant does not preserve a structural error on
            direct review but raises it later in the context of an
            ineffective-assistance-of-counsel claim. To obtain relief
            on the basis of ineffective assistance of counsel, the
            defendant as a general rule bears the burden to meet two
            standards. First, the defendant must show deficient
            performance—that the attorney’s error was “so serious
            that counsel was not functioning as the ‘counsel’
            guaranteed the defendant by the Sixth Amendment.”
            Strickland v. Washington, 466 U. S. 668, 687, 104 S. Ct.
            2052, 80 L. Ed. 2d 674 (1984). Second, the defendant
            must show that the attorney’s error “prejudiced the
            defense.” Ibid.

      Weaver, No. 16-240 at 22-23. In accordance with Weaver we find that the
burden to establish prejudice, even in cases involving arguably impliedly biased
panel members, remains with appellant.

       With regard to findings, we do not see SFC Sanders as a material (or “key”)
witness. As previously recounted, SFC Sanders testified appellant could not have
grabbed TM’s arm on Valentine’s Day because appellant was in the field. This
testimony, which totaled four pages, contradicted TM’s testimony about Valentine’s
Day but did not directly prove or disprove any element of the assault that happened
in May. Additionally, SFC Sanders by his own testimony had no personal
knowledge of appellant’s whereabouts on Valentine’s Day as he was attending his
own wedding. See Mil. R. Evid. 602. As his testimony was admitted without
objection, we consider it, although the admitted lack of personal knowledge
subtracts from the weight we might otherwise give it. 13 As SFC Sanders’ testimony
during findings was not material, appellant has not demonstrated any alleged
deficient performance by his counsel would have mattered.

       With regard to sentencing, we face a tougher decision. Three defense
witnesses testified in sentencing. In addition to SFC Sanders, the defense also
called Ms. Candice Schrieber. Like SFC Sanders, Ms. Schrieber was a former
supervisor of appellant who had known him for two years. Both testified to his good
duty performance, his potential to be a non-commissioned officer, and his potential
to rehabilitate or “bounce back” from his misconduct. While the testimony of SFC
Sanders and Ms. Schrieber were similar, we do not find them cumulative. Even so,
given appellant’s relatively lenient sentence for his offense, we again do not find


13
 Appellant testified, but was never asked whether he was in the field on Valentine’s
Day 2014, thus undermining any importance of the issue.

                                         19
LAZCANO—ARMY 20150354

appellant has met his burden of establishing prejudice. Appellant received a
sentence to three years confinement, total forfeitures, reduction to E-1, and a
dishonorable discharge. Appellant’s crime was violent and his testimony during
trial was mendacious. See Benchbook, para. 8-3-38. TM testified credibly and at
length regarding the harm she suffered from appellant’s crime. For this offense,
appellant received ten percent of the maximum period authorized and substantially
less than the four to seven years recommended by the trial counsel. We do not find
appellant has met his burden of showing a reasonable likelihood that counsel’s
performance, assuming it was deficient, would have resulted in a different
sentence. 14

                                  CONCLUSION

      The findings of guilty and the sentence are AFFIRMED.

      Senior Judge MULLIGAN and Judge FEBBO concur.

                                      FOR
                                      FOR THE
                                          THE COURT:
                                              COURT:




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




14
  We again note had his defense counsel raised any issue regarding SFC Sanders,
the government would have been notified of the allegations of misconduct against
SFC Sanders, possibly subjecting SFC Sanders to impeachment.

                                        20
