UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                              HAIGHT, PENLAND, and WOLFE
                                 Appellate Military Judges

                             UNITED STATES, Appellee
                                           v.
                      Private First Class GEORGE R. GALVAN
                           United States Army, Appellant

                                      ARMY 20140320

   Headquarters, U.S. Army Intelligence Center of Excellence and Fort Huachuca
                       Douglas K. Watkins, Military Judge
            Colonel Timothy J. Cody, Staff Judge Advocate (pretrial)
           Colonel Joseph A. Keeler, Staff Judge Advocate (post-trial)


For Appellant: Colonel Kevin Boyle, JA; Major Amy E. Nieman, JA; Captain Brian
D. Andes, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Major Daniel D. Derner, JA; Captain
Steve T. Nam, JA (on brief).


                                       31 March 2016

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

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

PENLAND, Judge:

       A general court-martial composed of officer and enlisted members convicted
appellant, contrary to his pleas, of one specification of failure to obey a lawful
order, one specification of false official statement, two specifications of rape, one
specification of larceny, and one specification of adultery, in violation of Articles
92, 107, 120, 121, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 892,
907, 920, 921, and 934 [hereinafter UCMJ]. The convening authority approved the
adjudged sentence of a dishonorable discharge and confinement for two years.

      We now review appellant’s case under Article 66, UCMJ. We have
considered matters personally raised by appellant pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982); they lack merit.
GALVAN—ARMY 20140320

      Appellant assigns two errors, one of which warrants discussion but no relief:

             WHETHER THE MILITARY JUDGE ABUSED HIS
             DISCRETION WHEN HE DENIED THE DEFENSE’S
             FOR CAUSE CHALLENGE OF COLONEL (COL) SK
             “BRINGING IN AN EXPECTATION” THAT “THE
             ARMY HAS A SEXUAL ASSAULT PROBLEM” AND
             THERE “WASN’T A GREAT NUMBER OF FALSE
             REPORTS” OF SEXUAL ASSAULTS.

       During group voir dire, trial defense counsel asked about the panel members’
attendance at training sessions regarding sexual assault prevention and response.
All of the members indicated they had received such training in the previous twelve
months. Colonel (COL) SK and several other panel members indicated that in the
context of the training they had been briefed on statistics regarding the incidence of
false reports. All panel members responded in the negative when asked whether they
believed “all or most sexual assault allegations are true” and whether “all or most
sexual assault allegations brought to court-martial are true.” Then, all panel
members responded affirmatively when defense counsel asked: “How many on this
panel believe that the Army has a sexual assault problem?”

       The defense continued by specifically focusing on the prosecution of sexual
assault allegations. All panel members responded negatively when asked: whether
they “believe that the Army is not doing enough to prosecute alleged sexual
assaults?”; whether they felt “the best thing to do [in response to such an allegation]
is to bring that case to trial, so that our Soldiers see that the Army is serious about
prosecuting sexual assault?”; and, whether any of them believed acquittal of such a
charge would “contribute to the perception that sexual assaults are not taken
seriously in the military?”

       Defense counsel subsequently followed up on several of these points during
individual voir dire with COL SK:

                    Q: Sir, one of the questions I had asked when I was
             doing the questioning is, whether folks had some
             knowledge of statistics from trainings about false -- you
             know, how often reports of sexual assault are false and
             you had mentioned you did have some familiarity with
             those statistics. What, if any, statistics have you been
             given regarding how often a report of sexual assault is
             false?

                   A. Well, I don’t remember the specific statistics or
             what the outcome was, but I do remember in part of the

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GALVAN—ARMY 20140320

        training that we were, let’s say, given those statistics. I
        don't remember specifically.

               Q. You don’t remember them specifically; do you
        remember if the statistics were one way or the other
        saying “On average, most sexual assault reports are not
        false,” or “On average, most sexual assault reports are
        false?”

                A. No. It wasn’t couched in that way.

              Q. Do you remember how it was couched, sir?
        What they were?

               A. It was just merely statistics that some reports
        are inaccurate.

               Q. I realize I just asked this to you, sir, but I’m just
        trying to ask it in different ways to make sure I get at it.
        Do you feel that there was, even though it wasn’t couched
        in that way, when they gave you those statistics and some
        reports are inaccurate or false and others are not; do you
        remember if, specifically, there was some type of talk of
        “More of these reports are not false” of “More of these
        reports are true than are false.” Things like that?

                A. No. I would say probably more than less than.

                Q. Meaning more of the reports are false than are
        true?

              A. Well, more are on the less side in terms of it
        wasn’t a great number of false reports.

               Q. Okay, so if you can--as you recall the training
        when they were talking about statistics, there were not a
        large number of false reports.

                A. Right.

               Q. Any reason to doubt anything you’ve heard in
        that training as to whether it’s true or not?

                A. No.

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GALVAN—ARMY 20140320


                   Q. Sir, on one of the questions I asked of
            everybody and everybody gave an affirmative answer was
            whether or not you all believe the Army had a sexual
            assault problem. You were one of everybody who said
            “Yes, I believe the Army has a sexual assault problem.”
            Why do you believe that, sir?

                   A. Well, I mean it’s like anything else. I’ve been
            in the military a long time, since ‘82, and the same thing
            with drunk driving. It started off very small and then the
            Army had a campaign against the problem to get after and
            make folks aware that there is a mission. It’s the same
            thing with sexual assault. It’s the Army trying to get after
            what they believe is an issue.

                   Q. Do you believe that the Army has a sexual
            assault problem that is different from, say, any college
            campus anywhere in the United States? For example, it’s
            more prevalent here than in other places?

                    A. Well, I’ve seen the reports where the Army says
            it’s higher on average than out in the civilian populations.

                   Q. So some of the reports you’ve seen have showed
            that the Army does actually have a higher rate of sexual
            assault than out in other populations?

                   A. [Affirmative response.]

       After the military judge questioned COL SK about his enlisted service as a
military policeman, government counsel followed with one question based on those
asked by the defense:

                    Q. Sir, [defense counsel] asked you about the
            various reports that you’ve read as to sex assault maybe
            being higher in the military than in the civilian world. If
            you were to be a panel member on this case, could you put
            all of that aside and decide this case solely on the facts
            and the evidence that come before you, and the
            instructions that are provided by the military judge?

                   A. Absolutely, ma’am.



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GALVAN—ARMY 20140320

      Defense counsel challenged COL SK for cause, arguing inter alia:

                     Colonel [SK] said he had heard statistics that there
             are not a large number of false reports of sexual assault
             and that he has no reason to doubt the truth of those
             statistics, so he’s got a going in position that, on the
             average, most of those reports of sexual assault are going
             to be true.

      Government counsel opposed the challenge, arguing, inter alia:

                    He believes that some reports are inaccurate. There
             were not a large number of false reports. He did say that
             the reports that [sic] are higher in the Army than with
             civilians, but that the Army is trying to resolve an issue,
             like DUI. He also answered Defense’s voir dire questions
             about--in the affirmative, about whether or not someone
             would lie or embellish things to get what they wanted, as
             well as if he could envision a situation in which a person
             might make a false complaint of sexual assault. He was
             able to put aside his military training as an MP and stated
             that he would be able to decide this case on the facts and
             on your instructions.

      Denying the defense challenge, the military judge reasoned:

                    I’ve considered the challenge for cause on the basis
             of both actual and implied bias and the mandate to
             liberally grant defense challenges. The challenge is
             denied for the reasons stated by the government, for one
             ....

                    I’m a little bit troubled by the [sic] trying to make a
             correlation between the statistics on false complaints
             which the court doesn’t have before it and doesn’t have
             personal knowledge of, and what [sic] a member’s belief
             about what they might be. I understand that the defense
             might be concerned with their bringing in an expectation
             but Colonel [SK], specifically, said he could put all of that
             aside and follow my instructions in this case. He actually
             said “Absolutely,” so that challenge is denied.

      Our superior court has established the standard of review in cases such as
appellant’s:

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GALVAN—ARMY 20140320


             “A military judge’s ruling on a challenge for cause is
             reviewed for an abuse of discretion. Military judges are
             afforded a high degree of deference on rulings involving
             actual bias. This reflects, among other things, the
             importance of demeanor in evaluating the credibility of a
             member’s answers during voir dire. By contrast, issues of
             implied bias are reviewed under a standard less deferential
             than abuse of discretion, but more deferential than de
             novo.”

United States v. Woods, 74 M.J. 238, 243 (C.A.A.F. 2015) (quoting United States v.
Downing, 56 M.J. 419, 422 (C.A.A.F. 2002)).

       “The burden of establishing that grounds for a challenge exist is upon the
party making the challenge.” United States v. New, 55 M.J. 95, 99 (C.A.A.F. 2001)
(citing R.C.M. 912(f)(3)); United States v. Wiesen, 57 M.J. 48, 49 (C.A.A.F. 2002);
United States v. Rolle, 53 M.J. 187, 191 (C.A.A.F. 2000); United States v. Warden,
51 M.J. 78, 81 (C.A.A.F. 1999); United States v. Giles, 48 M.J. 60, 63 (C.A.A.F.
1998). However, “[m]ilitary judges must follow the liberal-grant mandate in ruling
on challenges for cause . . . .” United States v. Daulton, 45 M.J. 212, 217 (C.A.A.F.
1996) (quoting United States v. White, 36 M.J. 284, 287 (C.M.A. 1993)); see also
United States v. Wiesen, 56 M.J. 172 (C.A.A.F. 2001).

       “Actual bias is personal bias that will not yield to the military judge’s
instructions and the evidence presented at trial.” Woods, 74 M.J. at 243 (quoting
United States v. Nash, 71 M.J. 83, 88 (C.A.A.F. 2012)). Our evaluation of implied
bias has a slightly different focus, based on an “objective test” and “the
consideration of the public’s perception of fairness in having a particular member as
part of the court-martial panel.” Id. (quoting United States v. Peters, 74 M.J. 31, 34
(C.A.A.F. 2015)).

        We recognize and certainly agree with the government’s statement that “[t]he
question . . . is not whether a member has particular views but whether they can put
these views aside to evaluate the case on its merits.” Appellee’s Br. 14 (citing
United States v. Elfayoumi, 66 M.J. 354, 357 (C.A.A.F. 2008)). However, we must
note that the government, in part, incorrectly briefs the facts of this case: “When
asked by the trial counsel if he could set aside . . . any prior exposure to SHARP
training and statistics about false reports, Colonel SK said he could do so . . . .”
Appellee’s Br. 16. The government also writes that COL SK “unequivocally stated
that he could put aside the statistics on false reports and follow the military judge’s
instructions.” Appellee’s Br. 19. In fact, COL SK was not specifically asked by
either government counsel or the military judge whether he recognized that such
statistics had no bearing on his duties in appellant's case. Nonetheless, trial defense

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GALVAN—ARMY 20140320

counsel did not ask COL SK whether his exposure to false reporting statistics would
somehow diminish his ability to impartially evaluate appellant’s case in accordance
with the law and evidence. Based on the circumstances, including COL SK’s vague
recollection of such statistics, we find appellant did not meet his burden to establish
that COL SK possessed actual bias.

       Turning to the issue of implied bias, we conclude that members of the public
would perceive no illegality, unfairness or partiality with COL SK’s service as a
panel member. See R.C.M. 912(f)(1)(N). In making this judgment, we note his
disagreement during group voir dire with the propositions that all or most reports of
sexual assault are true or that all or most sexual assault allegations which proceed to
courts-martial are true. We also note his unequivocal response—“Absolutely,
ma’am”—to the question of whether he could set aside the possibility that the Army
has a larger incidence of sexual assaults than the civilian community and decide this
case solely on the evidence and instructions thereon. We are confident that COL
SK’s answer was not dependent on any particularized training information to which
he was exposed and, instead, represented his ability and willingness to serve as an
impartial factfinder, “the sine qua non for a fair court-martial.” Wiesen, 56 M.J. at
174 (quoting United States v. Modesto, 43 M.J. 315, 318 (1995)). We find the
military judge did not abuse his discretion in denying the challenge for cause, even
in light of the liberal grant mandate.

                                   CONCLUSION

      The findings and sentence are AFFIRMED.

      Senior Judge HAIGHT and Judge WOLFE concur.


                                        FOR THE
                                        FOR THE COURT:
                                                COURT:




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




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