UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

MULLIGAN, HERRING, and BURTON 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Private First Class ERICK A. MEDRANO 

United States Army, Appellant 

ARMY 20140167 

Headquarters, 2d Infantry Division 

Colonel Wendy Daknis, Military Judge 

Lieutenant Colonel Lance S. Hamilton, Staff Judge Advocate 

For Appellant: Captain J. David Hammond, JA (argued); Lieutenant Colonel 

Jonathan F. Potter, JA; Major Christopher D. Coleman, JA; J. David Hammond (on 

brief and petition for new trial). 

For Appellee: Captain Anne C. Hsieh, JA (argued); Major Daniel D. Derner, JA; 

Captain Anne C. Hsieh, JA (on brief); Major A.G. Courie III, JA; MAJ Steven J. 

Collins, JA; Captain Anne C. Hsieh, JA (on answer to petition for new trial). 

29 December 2016 

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MEMORANDUM OPINION AND ACTION ON PETITION FOR NEW TRIAL 

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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

MULLIGAN, Senior Judge: 

 A panel composed of officer and enlisted members convicted appellant, 

contrary to his pleas, of attempted voluntary manslaughter, damaging nonmilitary 

property, and drunk and disorderly conduct in violation of Articles 80, 109, and 134 

Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 880, 909 and 

934 (2012). The panel sentenced appellant to a bad-conduct discharge, confinement 

for thirty months, forfeiture of all pay and allowances, and reduction to the grade of 

E-1. 

This case comes before us both for review under Article 66, UCMJ, and as a 

petition for new trial under Article 73, UCMJ and Rule for Courts-Martial 
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2 

hereinafter R.C.M.] 1210.1 Of appellant’s three assignments of error, and his 

personally assigned issues pursuant to United States v. Grostefon, 12 M.J. 431 

(C.M.A. 1982), none merit discussion or relief. Appellant’s petition for new trial 

warrants discussion, but no relief. 

BACKGROUND 

A. Private First Class Medrano’s Misconduct 

 

In the early morning hours of 3 September 2013, appellant returned to his 

barracks room on Camp Casey, Korea, after a night of drinking. Appellant called his 

wife and began to argue with her on the phone. At this time, appellant’s roommate 

Private (PVT) JW, and their mutual friend, Private First Class (PFC) BM were 

watching television in the room. Appellant asked PVT JW to turn the television off, 

because his wife thought he was watching it instead of paying attention to the phone 

conversation. Private JW lowered the television’s volume, but he did not turn it off. 

Upset, appellant turned the television off and threatened to punch it if it was turned 

on again. Private JW turned the television back on, and appellant punched and 

shattered the screen. Appellant and PVT JW began arguing and started to wrestle. 

Private JW held appellant in a “rear naked choke” hold until appellant “tapped out.” 

Appellant then picked up a knife and stabbed PVT JW. Private JW threw the 

appellant onto the bed and jumped on top of him. Appellant continued to stab PVT 

JW while on the bed until PFC BM intervened. Private JW ran from the room and 

collapsed in the stairwell. Appellant stabbed PVT JW eleven times, resulting in 

multiple injuries, to include a punctured lung and punctured spleen. Private JW was 

hospitalized for nine days. 

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

On 5 March 2014, appellant proceeded to a general court-martial composed of 

officer and enlisted members. The court-martial flyer listed the following charges: 

one specification of damaging non-military property; one specification of aggravated 

assault causing grievous bodily harm; one specification of aggravated assault with a 

means likely to cause death or grievous bodily harm; one specification of drunk and 

disorderly conduct; and one specification of attempted murder. 

First Sergeant RJ (1SG) sat as one of the enlisted panel members. At the time 

of PFC Medrano’s court-martial trial, 1SG RJ was not the subject of any 

investigation or pending any criminal charges. Approximately eight months after 

appellant’s court-martial, 1SG RJ was charged with, among other things, multiple 

assaults against his estranged wife that, with the exception of one, occurred prior to 

 

1 The Court heard oral argument on the petition for a new trial at the George 

Washington University School of Law in Washington, DC. 
MEDRANO—ARMY 20140167 

3 

his service as a panel member.2 The most recent allegation of assault charged prior 

to his service on the court-martial panel was November 2012, approximately sixteen 

months prior to appellant’s court-martial. 

At the beginning of voir dire the military judge asked the prospective members 

to state “any matter which he or she believes may be a ground for challenge by 

either side.” No matters were raised by the members. The military judge then asked 

the following questions: 

MJ: Having seen the accused and having read the charges 

and specifications, does anyone feel that you cannot give 

the accused a fair trial for any reason? 

[Negative Response from all panel members] 

[. . .] 

MJ: Has anyone or any member of your family, or anyone 

close to you personally ever been the victim of an offense 

similar to any of those charged in this case? 

[Negative response from all members] 

[. . .] 

MJ: Is any member aware of any matter which might raise 

a substantial question concerning your participation in this 

trial as a court member? 

[Negative response from all members]... 

First Sergeant RJ answered the following questions affirmatively: 

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

[. . .] 

ADC: “Have you ever worked with victims of assault in 

any capacity?” 

[. . .] 

 

2

 On 19 March 2015, 1SG RJ pleaded guilty to three specifications of a violation of 

Article 128, UCMJ, assault, by pushing his wife on the chest with his hand, striking 

her on her head with his hand, and grabbing her arm and throwing her on a bed. He 

additionally pleaded guilty to one specification of a violation of Article 134, UCMJ, 

by failing to pay a just debt. 
MEDRANO—ARMY 20140167 

4 

ADC: “Have you, a close friend, or relative ever been 

accused of something you did not do?” 

First Sergeant RJ clarified his answer to these questions during individual 

voir dire. He explained that he was in a fight in high school. He also explained he 

worked with victims of assault in a professional capacity as a platoon sergeant, and 

he was mistakenly suspected as an altercation participant with German locals in 

1994. He also disclosed that he was trained in boxing techniques, but he never used 

those techniques outside of training. First Sergeant RJ did not disclose any instance 

of the domestic assaults for which he was later convicted. No challenges for cause, 

nor any peremptory challenges, were brought against 1SG RJ. 

LAW AND DISCUSSION 

Standard of Review 

A motion for a new trial is normally addressed “to the sound discretion of a 

trial judge and his ruling is not subject to review except in case of abuse...”. United 

States v. Thomas, 3 U.S.C.M.A. 161, 11 C.M.R. 161, 164 (1953). As the court of 

first instance in regards to this petition, we may exercise de novo discretion in 

determining whether “sufficient grounds exist for granting” a new trial, but “this 

broad discretion must not be abused.” United States v. Bacon, 12 M.J. 489, 492 

(C.M.A. 1992). 

A. Article 73, Petition for a New Trial 

In the case of a petition for a new trial, “[i]f the accused’s case is pending 

before a Court of Criminal Appeals . . . the Judge Advocate General shall refer the 

petition to the appropriate court for action.” UCMJ Art. 73. The appellant may 

“petition for a new trial on the grounds of newly discovered evidence or fraud on the 

court.” A new trial will not be granted to “permit the accused to relitigate general 

matters which were presented below and decided adversely to him.” United States v. 

Bacon, 12 M.J. 489, 492 (C.M.A. 1982) (citing United States v. Troutt, 24 C.M.R. 

246, 248 (1957); United States v. Johnson, 28 C.M.R. 662, 686 (N.B.R.1959)). 

Appellant’s petition alleges fraud on the court-martial by the willful concealment of 

a material ground for challenge. A new trial may be ordered when “the basis for 

challenge or disqualification was not known to the defense at the time of trial” due 

to “willful concealment of a material ground for challenge of the [panel] member.” 

R.C.M. 1210(f) discussion at A21-98. 

A hearing pursuant to United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 

411 (1967), is generally the appropriate method for finding facts relating to a panel 

member’s failure to disclose. United States v. Mack, 41 M.J. 51, 55, (C.A.A.F. 

1994); United States v. Humphreys, 57 M.J. 83, 96 (C.A.A.F. 2002). Here, appellant 
MEDRANO—ARMY 20140167 

5 

does not request a DuBay hearing, and we can rely on supplemental extracts from 

1SG RJ’s court-martial. 

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

 In addressing the question of whether a court member’s failing to respond or 

giving an incorrect response prejudiced the rights of the appellant, we are guided by 

the U.S. Supreme Court’s established test in McDonough Power Equip., Inc v. 

Greenwood, 464 U.S. 548 (1984). On a petition for new trial based on a juror’s 

alleged fraud: 

[A] party must first demonstrate that a juror failed to 

answer honestly a material question on voir dire, and then 

further show that a correct response would have provided 

a valid basis for a challenge for cause. 

464 U.S. at 556. This test is two parts that first requires a finding that the juror 

failed to answer honestly a material question before we move to consider whether a 

valid basis for a challenge for cause exists. 

Consistent with our superior court’s analysis in United States v. Taylor, 44 

M.J. 475 (C.A.A.F. 1996), we must first establish whether 1SG RJ failed to answer 

voir dire questions honestly, or willfully concealed his misconduct involving the 

assaults on his wife. Using the Taylor framework, if we find 1SG RJ’s answers were 

not dishonest, we do not proceed to the second prong of the analysis. 

The issue in Taylor involved a colonel on an officer panel who, six months 

after sitting as a panel member in a premeditated murder, burglary, and larceny case, 

was convicted pursuant to his pleas of several sex offenses. These offenses 

included: seven specifications of sodomy (two involving a child under the age of 

16); one specification of conduct unbecoming an officer by having an illicit 

relationship with a male staff sergeant assigned to the colonel’s unit; five 

specifications of indecent acts upon a male under the age of 16; six specifications of 

indecent acts with an adult male; and three specifications of indecent act with a 

staff sergeant. The allegations were not known at trial and there was “no evidence 

that at the time he was empaneled he knew he was under investigation, nor is there 

evidence of either his actual prejudice against [appellant] or words or actions that 

show he might be prejudiced.” Taylor, 44 M.J. at 477. 

The court’s reasoning in Taylor followed that in United States v. Aguon, 851 

F.2d 1158 (9th Cir. 1988), where the defendant discovered a juror in her case had 

pleaded guilty, subsequent to her trial, to similar charges involving “taking of 

kickbacks in connection with the letting of paving contracts.” 851 F.2d at 1170. In 
MEDRANO—ARMY 20140167 

6 

both Aguon and Taylor the juror/panel member was asked variations of the general 

fairness voir dire questions. In Taylor the questions were: 

(1) Is any member of the court aware of any other matter which the member 

believes may be a grounds for challenge by either side against him? 

Negative response; 

(2) [D]o all of you have the frame of mind that you would want court 

members to have if the roles were reversed and you were accused of 

committing a crime? Are all of you in that impartial mindset? 

Affirmative response from all members. 

44 M.J at 477. 

This court distinguishes dishonesty from answering questions narrowly. 

United States v. Robinson, ARMY 20120993, 2014 CCA LEXIS 917, at *3 (Army 

Ct. Crim. App. Dec. 23, 2014) (In a case alleging sexual assault of an adult victim, 

members were asked if a family member or somebody close to them were ever the 

victim of a “similar” offense. One member’s failure to disclose his daughter was the 

victim of child sex offense was not dishonest; rather, he did not consider an offense 

against an adult and an offense against a child as “similar.”). 

 In United States v. Albaaj, 65 M.J. 167 (C.A.A.F 2007), our superior court 

dealt with the dishonest juror. During initial voir dire by the military judge the 

panel was specifically asked “Does anyone know anyone named Emad, in any of the 

specifications?” Emad was the accused’s brother and a witness at the court-martial. 

When Emad testified, a panel member recognized that his previous answer was 

incorrect and that in fact he did know him and worked with him. The panel member, 

however, did not correct his previous answer by informing the military judge. The 

court concluded that the failure by the panel member to correct his original answer 

regarding knowledge of a witness “violated his duty of candor” and the first prong 

of McDonough Power Equip. was satisfied. There was little room to quibble-the 

panel member either knew the witness with a unique name or he did not. 

In consonance with our holding in Robinson, we find that 1SG RJ answered 

the questions narrowly rather than dishonestly. We disagree with appellant’s view 

that the domestic assaults to which 1SG RJ pleaded guilty were similar to the 

charges on the flyer, thereby making his answers during voir dire wrong or 

dishonest. A domestic assault between a husband and wife consummated by a chest 

push, head slap, and arm pull is drastically different from an assault with a deadly 

weapon and attempted murder of a fellow soldier in the barracks. The flyer the 

panel members were presented with outlined charges that included attempted murder 

“by repeated stabbing with a knife.” While not minimizing the serious nature of 

domestic assault, but rather comparing the assault offenses for which 1SG RJ was 
MEDRANO—ARMY 20140167 

7 

convicted3 with attempted murder, we do not find them sufficiently similar to 

appellant’s charges. 

Additionally, we find it is reasonable that 1SG RJ’s physical interactions with 

his wife sixteen months previous would not come to mind as “similar” when the 

flyer described a physical altercation between two men that ended with an attempted 

murder. While lawyers may view appellant’s charges and the charges of which 1SG 

RJ was convicted as escalating gradations of an assaultive offense, it is reasonable 

that the lay panel members would not view the offenses as similar. It is simply not 

intuitive that a “similar offense” to assault would be attempted murder by stabbing. 

Given that we find 1SG RJ’s answers were not dishonest, we find appellant 

has failed the first prong of McDonough Power Equip. and we conclude our analysis. 

CONCLUSION 

 On consideration of the entire record, and the assigned errors, the petition for 

a new trial is DENIED. The findings and sentence are AFFIRMED. 

 Judge HERRING and Judge BURTON concur. 

 FOR THE COURT: 

 JOHN P. TAITT 

 Acting Clerk of Court 

 

3

 First Sergeant RJ was originally additionally charged with two aggravated assaults 

on his wife, one in April 2011 by placing a knife to her neck, and the second by 

strangling her neck with his hands in November 2012, but those specifications were 

dismissed. 

JOHN P. TAITT 

Acting Clerk of Court 

FOR THE COURT: