UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                             BURTON, HAGLER, and FLEMING
                                Appellate Military Judges

                              UNITED STATES, Appellee
                                           v.
                             Private E2 DANIEL I. AVILA
                             United States Army, Appellant

                                     ARMY 20160200

               Headquarters, 1st Cavalry Division (Rear)(Provisional)
                        Douglas J. Watkins, Military Judge
         Lieutenant Colonel Michael D. Jones, Acting Staff Judge Advocate


For Appellant: Lieutenant Colonel Tiffany M. Chapman, JA; Captain Joshua B. Fix,
JA; Captain Bryan A. Osterhage, JA (on brief); Major Jack D. Einhorn, JA; Captain
Bryan A. Osterhage, JA (on reply brief).

For Appellee: Lieutenant Colonel Eric K. Stafford, JA; Major Virginia Tinsley, JA;
Captain Natanyah Ganz, JA (on brief).


                                      23 October 2018

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

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

FLEMING, Judge:

      In this appeal, we find the military judge did not abuse his discretion in
denying trial defense counsel’s request for a mistrial based upon alleged member
misconduct prior to deliberations on findings.

       An officer panel sitting as a general court-martial convicted appellant,
contrary to his pleas, of two specifications of sexual assault and one specification of
obstructing justice in violation of Articles 120 and 134, Uniform Code of Military
Justice, 10 U.S.C. §§ 920, 934 (2012) (UCMJ). The convening authority approved
the adjudged sentence of a dishonorable discharge, confinement for two years,
forfeiture of all pay and allowances, and reduction to the grade of E-1.
AVILA—ARMY 20160200

       This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises four assignments of error, one of which merits discussion but no relief.
Appellant personally raises five matters pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982), which do not warrant discussion or relief.

                                  BACKGROUND

      After the close of the presentation of evidence on findings, the military judge
explained to the panel members the procedural steps before releasing them for the
evening. The military judge told the panel he would instruct them on the law the
following morning, they would hear closing arguments from counsel, and then they
would begin deliberations. Right before releasing the members, the military judge
asked if there were any questions, which prompted the following exchange:

             Member [MAJ L]: The sentencing phase, as well, Your
             Honor?
             MJ: Well, that totally depends on the findings. If the
             accused is acquitted, there won’t be any sentencing phase.
             Member [MAJ L]: Okay, all right, good.
             MJ: But if there are sentencing proceedings, when we do
             that depends on when you make your findings and there’s
             no standard--there’s no time standard for that. It just--
             basically, I can’t answer your question because it all
             depends.
             Member [MAJ L]: Okay.

       After the members were released, the military judge took up other business in
an Article 39(a), UCMJ, session, and asked both parties if there was anything else
before they recessed. Neither the defense counsel nor the trial counsel had anything
to offer.

       The next morning in an Article 39(a), UCMJ, session, the military judge
summarized what took place at a Rule for Courts-Martial [R.C.M.] 802 session
where a host of issues were addressed, including MAJ L’s question. The military
judge stated the member was “probably inquiring . . . to have a general idea of a
possible timeline. . . as two panel members have leave starting tomorrow and this
case was only docketed through today.” The military judge went on to say
“[h]owever, it is not an unreasonable interpretation that [MAJ L] may already have a
preconceived idea that the accused is guilty, which of course, would be improper at
this stage of the trial.” Based on that, the military judge informed counsel that he


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would voir dire the MAJ L. Both parties agreed to the military judge’s
summarization of the R.C.M. 802 and had nothing else to offer. Directly prior to
calling MAJ L, defense consel requested the military judge ask MAJ L the following
questions:

            DC: Whether the member has already made a decision and
            no longer has an open mind, or however you’d like to
            phrase that, sir.
            MJ: What I’d like to do is voir dire [MAJ L] individually.
            DC: Yes, sir.
            MJ: And part of that will be if there is any discussion about
            coming to any conclusion.
            DC: Yeah, and--exactly sir. Whether they’ve had
            discussion on the case and then as far as the other panel
            members, what was the impact on his statement on them,
            and you know, the fact if they’ve already made a decision
            about guilty, or innocence, sir.
            MJ: All right . . . .

       The military judge then called MAJ L in, did exactly what was discussed with
defense counsel, and asked exactly what defense counsel requested. First, the
military judge asked an opened-ended question of the member to clarify why he
asked the question about sentencing.

            A [MAJ L]: Just procedural, sir. That’s the reason I was
            asking.
            MJ: Okay. Have you formed any opinion about the
            accused?
            A: No, there are still some questions that I have that I’m
            mulling through my mind, so no, I have not formed an
            opinion.
            MJ: And you understand that would be improper because
            you haven’t been instructed on the law yet?
            A: Yes, sir.
            MJ: All right. Have you had any discussions about the
            merits of this case with the other members?


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AVILA—ARMY 20160200

             A: We have had some discussions, yes.
             MJ: Of evidence or of guilt or innocence?
             A: Of evidence.
             MJ: Is that in the nature of debates or just comments?
             A: Comments mostly, sir.
             MJ: You understand that the only opinion you can have at
             this point in the trial is that the accused is innocent until
             proven guilty?
             A: Yes, sir.
             MJ: All right. Does either party wish to voir dire [MAJ
             L]?
             ATC: No, sir.
             DC: No, sir.

       At this point, the military judge called in the remaining panel members, and
the following colloquy took place.
             Members, I called [MAJ L] in here to ask him some
             questions and they related to a question he had in court
             yesterday. He asked something to the effect of when
             sentencing proceedings would occur when I was
             discussing the timeline for the morning. And my concern
             is that could be interpreted as an indication that he may
             have already formed an opinion on guilt and innocence. It
             could also be interpreted, which I believe is the correct
             interpretation, that he was just concerned about
             procedurally whether we were going to be finished today
             because the case was docketed to end today and I know
             that at least a couple of members have leave starting
             tomorrow. And he stated that he was only asking for
             procedural reasons. Did anyone interpret his question as
             an opinion on guilt?
             That’s a negative response from all members.
             Does everyone understand that the accused is still
             presumed innocent of the offenses?



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AVILA—ARMY 20160200

             ...
             That’s an affirmative response from all members.

      The military judge went on to give a lengthy curative instruction reminding
the panel members of their obligation to keep an open mind, to impartially weigh
evidence, and to wait until everyone was together to deliberate. All panel members
agreed they understood these instructions. The military judge asked if either side
wished to voir dire the members further. Neither side wished to do so. The
members were then excused for a short recess, at which time an Article 39(a) session
took place and defense moved for a mistrial.

       The defense argued the members had already made up their minds, and that
because they had not followed the military judge’s instructions to not discuss the
case, they would likely not follow the instructions the judge was about to give them.
After the government articulated the reasons why they believed a mistrial was not
appropriate, including that MAJ L specifically indicated he had not formed an
opinion regarding guilt or innocence, the military judge ruled, stating:
             But it doesn’t surprise me at all that new members might
             make some comments on the evidence that they heard,
             despite the instruction, which is one instruction in a pretty
             voluminous set of instructions at the beginning of trial.
             That doesn’t make it proper but it’s natural to expect that
             with a new panel. With that said, all the members said
             that they had not formed an opinion about the accused’s
             guilt and agreed that he was presumed innocent at this
             point in the trial and they all said they would follow my
             instructions and I believe the curative instruction
             impressed upon them the importance of not discussing the
             case and not forming any opinions until they’ve heard all
             the evidence and the instructions on the law. So while it’s
             unfortunate that this happened, I don’t think that a mistrial
             is manifestly necessary in the interest of justice. I believe
             the curative instruction is sufficient to bring the attention
             of the members the importance of following the
             instructions and not forming opinions.

                             LAW AND DISCUSSION

     We review a military judge’s decision in the context of inquiring into
member’s conduct during proceedings or deliberations for an abuse of discretion.



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United States v. Lambert, 55 M.J. 293, 296 (C.A.A.F. 2001). “In making the
determination whether to investigate [alleged court member misconduct] and what
kind of investigation to make, as well as whether and to what extent the conduct was
prejudicial, the trial court has wide discretion.” Id. at 295 (citation omitted). Our
superior court has held that “a mistrial is an unusual and disfavored remedy. It
should be applied only as a last resort to protect the guarantee for a fair trial.”
United States v. Short, 77 M.J. 148, 150 (C.A.A.F. 2018) (quoting United States v.
Diaz, 59 M.J. 79, 90 (C.A.A.F. 2003)). See also United States v. McFadden, 74 M.J.
87 (C.A.A.F. 2015). Moreover, “[b]ecause of the extraordinary nature of a mistrial,
military judges should explore the option of taking other remedial action, such as
giving curative instructions.” Id. (quoting United States v. Ashby, 68 M.J. 108, 122
(C.A.A.F. 2009)).

       In the instant case, the impetus for voir diring MAJ L was his question to the
court regarding sentencing. When the military judge asked him what he meant by
that question, MAJ L was clear that he was simply asking a procedural question.
From there, the military judge explored whether MAJ L had formed any opinions, to
which MAJ L said he had not and was still actively contemplating certain questions
in his own mind. From there, the military judge explored whether any discussions
had taken place between MAJ L and any other members. When he learned they had,
the military judge inquired about the nature of those discussions. According to MAJ
L they were not opinions or comments on guilt or innocence, rather they were
comments about certain evidence. Even still, the military judge inquired if the
member was engaging in premature deliberations in the form of debates, or simply
comments about evidence. The member replied they were comments not debates.
Afterwards, the rest of the panel was called in and no other member considered the
original question from the member regarding sentencing to be an opinion on guilt.

      Defense counsel made no further request for the military judge to voir dire
MAJ L or the remainder of the panel. Nor, did defense counsel take the military
judge up on his offer for an opportunity to personally conduct additional voir dire.

       Appellant urges us to find that military judge’s actions where similar to those
in United States v. Resko, 3 F.3d 684 (3d Cir. 1993), and to therefore find the
military judge abused his discretion by failing to conduct an adequate inquiry. For
the first time on appeal, appellant suggests the military judge should have inquired
into who else was involved in the discussions, as well as the timing, duration, and
frequency of those discussions. Appellant suggests the military judge ceded his
authority to the panel members to determine whether there was prejudice.




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        In Resko, the juror misconduct was discovered mid-trial, seven days into a
nine-day trial. The jurors had been continually instructed not to discuss the case
until the close of trial, and after being formally instructed. Id. at 687. On the
seventh day, one of the jurors told a court officer that other jurors had been
discussing the case during breaks. The court officer informed the trial judge, who
then informed counsel. Defense counsel asked for individual voir dire to discover
what had been discussed and what prejudice the premature deliberations might have
caused. Barring that, they moved for a mistrial. Id. at 687-88. The judge denied
both motions and decided to gather the jurors together, and give them a written
questionnaire with two questions. The first question asked if they had participated
in discussing the facts of the case with any other juror. The second question asked,
if so, had they formed an opinion about the guilt or innocence of either of the two-
defendants as a result of those discussions. Id. at 688. Every single juror replied
they had participated in discussions, but they had not formed an opinion as to guilt
or innocence. Based on the results of the questionnaire, the defense moved again for
a mistrial. The court denied the mistrial. Both defendants were convicted of two
offenses.

       The appellate court struggled with balancing the broad discretion of the trial
court in addressing intra-jury misconduct against the failure of the court to conduct
additional inquiry once it determined the pervasiveness of the premature discussions.
Ultimately, the court vacated and remanded the case because the trial judge abused
his discretion by not engaging in further inquiry, “such as individualized voir dire --
upon which it could have determined whether the jurors had maintained open
minds,” and there was prejudice to the defendants. Id. at 691. In so doing, the
Resko court noted that its ruling was in line with its sister circuit which held a judge
in similar circumstances should: “ascertain whether the misconduct actually
occurred; if it did, determine whether it was prejudicial; and if there are no grounds
for a new trial, specify the reasons it decided that misconduct did not occur, or
occurred but was not prejudicial.” Id. (citing United States v. Richman, 600 F. 2d
286, 295 (1st Cir. 1979)).

      This case is distinguishable from Resko in many respects. First, the
misconduct was discovered inadvertently, when one member asked a procedural
question regarding the next day’s order of events after both sides had rested. * The

*
 Like the military judge, we read nothing into the MAJ L’s question about
sentencing, other than he was apparently the only member who previously sat on a
court-martial and was inquiring about the procedural next steps. We are confident in
this assessment because of the open-ended question the military judge posed during

                                                                        (continued . . .)


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AVILA—ARMY 20160200

military judge could have ended his query of the member at this point, but he delved
further, unlike in Resko. It is at this point the intra-jury misconduct was discovered.
But unlike in Resko, MAJ L answered that his comments were about evidence, not
guilt or innocence. Additionally, the military judge held lengthy discussions with
counsel both on the record and in a R.C.M. 802 hearing regarding what to do about
this matter. When defense counsel asked to provide input regarding the military
judge’s decision to voir dire the member on this issue, the military judge allowed it,
unlike in Resko. As mentioned earlier, the military judge asked precisely the
questions defense counsel requested. While at first blush it appears the questions
the military judge asked the entire panel appear similar to the questionnaire in
Resko, it is not the questionnaire the appellate court found to be in error. It was that
the jurors were gathered together and left alone to answer the questions as a group,
leaving open the opportunity for further misconduct. Here, the panel members were
in open court and had no opportunity for group discussion. Finally, and perhaps
most notably different from Resko, the military judge provided both sides the
opportunity to conduct their own voir dire of the entire panel. Both counsel declined
that opportunity.

       We too recognize the broad discretion the trial court had in this matter. The
military judge, was apparently satisfied, and “obviously in a better position (than the
appellate court) to observe the impact of premature jury discussions . . . and to make
a considered judgement as to the effectiveness of a cautionary instruction.” Resko, 3
F.3d at 690 (quoting United States v. Pantone, 609 F. 2d 675, 679 (3d Cir. 1979)).
In light of this broad discretion and the thorough curative instruction that was given,
we do not find the military judge abused his discretion.

                                   CONCLUSION

      The findings and sentence are AFFIRMED.

      Senior Judge BURTON and Judge HAGLER concur.




(…continued)
individual voir dire of the member, as well as the circumstances surrounding the
question itself and the timing of the question.




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                      FORTHE
                      FOR THECOURT:
                              COURT:




                      MALCOLMH.H.
                      MALCOLM         SQUIRES,
                                     SQUIRES, JR. JR.
                      ClerkofofCourt
                      Clerk     Court




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