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_______ _______ __________ No. ACM 38854 (rem)

_______ _______ __________ UNITED STATES Appellee

v. Kenneth W. FRANK, Jr. Technical Sergeant (E

- 6 ) , U.S. Air Force, Appellant

_______ _______ __________
On Remand from the United States Court of Appeals for the Armed Forces

Decided 5 April 2018

_______ _______ __________ Military Judge : Ira Perkins ; Christopher F. Leavey (post

- trial session ); Tiffany M. Wagner ( DuBay hearing). Approved sentence: Dishonorab le discharge, confinement for 1 year, and r eduction to E

- 1. Sentence adjudged 11 March 2015 by GCM convened at Incirlik Air Base, Turkey

. For Appellant: Major Isaac C. Kennen, USAF; Major Annie W. Morgan, USAF. For Appellee: Major Matthew L. Tusing, USAF; Gerald R. Bruce, Esquire ; Mary Ellen Payne, Esquire

. Before MAYBERRY, JOHNSON, and SPERANZA, Appellate Military Judges

. Senior Judge JOHNSON delivered the opinion of the c ourt, in which Ch ief Judge MAYBERRY and Judge SPERANZA joined.

_______ _______ __________
This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 18.4.

_______ _______ __________United States v. F rank
, No. ACM 38854 (rem)

2 JOHNSON, Senior Judge: A general court

- martial composed of officer and enlisted members found Appellant guilty, contrary to his pleas, of one specification of rape in violation of Article 120 of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920. The court

- martial sentenced Appellant to a dishonorable dis charge, confinement for one year, and red uction to E

- 1. The convening au thority approved the sentence as adjudg ed but waived the mandatory for feitures of Appellant’s pay and allowances for the benefit of Appellant’s child. Upon our initial review, Appellant contended: (1) a member of the court

martial failed to disclose information in voir dire that would have been a basis for a challenge for cause; (2) the military judge erred in denying a challenge for cause; (3) the milit ary judge erred in admitting evidence under Military Rule of Evidence (Mil. R. Evid.) 413 and providing a related instruction; (4) th e military judge erroneously in structed the court members regarding the burden of proof; an d (5) the mil itary judge erred b y failing to put the court members into deliberations to reconsider the sentence. In addition, we consider ed whether Appellant was en titled to relief due to a facially unreasonable delay in the appellate review of his court

- m artial. We determined a post

- tr ial factfinding hearing in accordance with United States v. DuBay , 37 C.M.R. 411, 413 (C.M.A. 1967), was appropriate in order to decide issue (1), and such a hearing was held pursuant to an order of this court . After receiving supplemental filings from the parties in light of the DuBay hearing, we ultimately found no relief was warranted and we affirm ed the findings and
sentence. United States v. Frank , No. ACM 38854, 2017 CCA LEXIS 311 (A.F. Ct. Crim. App. 28 Apr. 2017) (unpub. op.) ( Frank I ). The United S tates Court of Appeals for the Armed Forces (CAAF) granted review, 1 set aside our prior decision, and remanded the case to us for a new review under Article 66, UCMJ, 10 U.S.C. § 866 , in light of its decision in United States v. Com-

1 The CAAF granted review of the fo llowing issues:

I. WHETHER TSGT MA SHOULD HAVE BEEN DISMISSED FROM THE COURT

- MARTIAL FOR IMPLIED BIAS.

II. WHETHER THE MILITARY JUDGE ERRED IN ADMITTINGEVIDENCE OF MISCONDUCT THAT WAS CHARGED AND LATER DISMISSED FOR LACK OF EVIDENCE UNDER MILITARY RULE OF EVIDENCE 413 AND PROVIDING THE STANDARD MILITARY RULE OF EVIDENCE 413 INSTRUCTION.

United States v. Frank , 76 M.J. 476 (C.A.A.F. 2017).United States v. F rank
, No. ACM 38854 (rem)

3 misso , 76 M.J. 315 (C.A. A.F. 2017). United States v. Frank , 77 M.J. 77 (C.A.A.F. 2017).

For the reasons stated in Frank I , we again find no relief is warrantedwith respect to the military judge’s denial of the challenge for cause, the military judge’s admission of evidence under Mil. R. Evid. 413 and provision of a related instruction, the military judge’s instructions regarding the burden of proof, the military judge’s failure to direct reconsideration of the sentence, or facially unreasonable post

- trial delay. 2 Having received additional supplemental filings from the parties and having considered the case in light of Commisso , we also again conclude no relief is warranted with respect to the alleged court member misconduct. Accordingly, we affirm the findings and the sentence.

I. B ACKGROUND Appellant was assigned to Incirlik Air Base (AB) , Turkey. He met Staff Ser geant (SSgt) RT at an on

- base traini ng event and they began communicating with one another by instant message and Facebook. In April 2014, Appellant and SSgt RT attended a n on

- base festival together. Over the course of the day SSgt RT consumed several alcoholic drinks and became intoxicated. She did not remember leaving the festival, but she recalled being in front of Appellant’s dorm room with several other people. Her nex t memory after that was “waking up” to Appellant “having sex with her” in his room. She later testified that after she woke up she “scooted” away from Appellant and told him it hurt, but Appellant pulled her back and continued. SSgt RT testified she was no t consenting. She did not ini tially report this incident. SSgt RT had limited contact with Appe llant after the April 2014 inci dent. However, on the night of 28 June 2014, SSgt RT encountered Appel lant at the club on base. SSgt RT had left her headband in Appellant’s room during the April incident, and she told him she wanted to get it back. S Sgt RT later testified s he followed Appellant to his room. When they arrived, Appellant opened the door and pointed to the headband
, which wa s on a table inside. SSgt RT en tered the room to get her headband. Whe n she turned around, she saw Ap pellant had closed the door behind th em and lowered his pants and

un derwear. Appellant placed his hand on SSgt RT’s head and pushed her

2 Assuming, without deciding, that the CAAF’s order setting aside our previous deci

sion rendered our earlier opinion a complete legal nullity, we have reconsidered and restated our holdings on these issues to ensure it is clear that Appellant received his full Article 66, UCMJ, 10 U.S.C. § 866, appellate review.United States v. F rank
, No. ACM 38854 (rem)

4 down to his penis, which he shoved in her mou th. SSgt RT removed it by pushing Appellant and turning her head. SSgt RT convinced Appellant to let go of her by insisting she had to use his bathroom. When SSgt RT eventually exited the bathroom, she found Appellant standing in his room completely naked. Appellant grabbed the purse SSgt RT was holding and pushed her head down again, but she knocked him off balance by shoving him and she fled the room. SSgt RT told her roommate about the June assault on the following day, a Sunday. The day after that, she informed a supervisor of the June as sault, which ultimately led to her interview by the Air Force Office of Spe cial Investigations. Appellant was subseq uently charged with sexual assault by causing bodily harm for the April incident and with rape for the June incident; however, the convening authority dismissed the sexual assault specification for the April incident after the Article 32, UCMJ, 10 U.S.C. § 832, hearing. The sole charge before Appellant’s court

- martial was based on the June assault. The specification alleged: [Appellant] did, at or near Incirlik Air Base, Turkey, on or about 29 June 2014, commit a sexual act upon [SSgt RT], to wit: penetration of [SSgt RT’s] mouth with [Appellant’s] penis, by unlawful force, to wit: grabbing [SSgt RT ’s] head with his hand and putting his penis into [SSgt RT’s] mouth. Appellant’s court

- martial convened on 10 March 2015. Technical Ser geant (TSgt) MA was selected to serve as one of the court members. During group voir dire of the court members by t he mil itary judge, TSgt MA indi cated she did not know Appellant, nor did she know anyone named in the specification of the charge. She also res ponded negatively when the mili tary judge asked if she, or a member of her family, or “anyone close to [her] personally ” had “ever been the victim of an offense similar to the charge in [Appellant’s] case.” In response to a question from trial defense counsel, TSgt MA identi fied herself as a victim advocate. During i ndividual voir dire, TSgt MA ex plained her role as a vi ctim advocate involved providing services and sup port to individuals who reported being victims of sexual assault, but not assessing a victim’s veracity or assuming th e guilt of the alleged perpetra tor. TSgt MA had undergone training and attended meetings for victim ad vocates, but she denied knowing any of the facts of Appellant’s case. In the 11 months she had been a victim advocate to that point, TSgt MA had never been as signed to assist a victim of an alleged sexual assault. When the military judge clari fied, “[Y]ou’ve never actually interacted with somebody who’s a complainant of sexual assault, correct?” she responded, “No.” TSgt MA stated her training and experiences as a victim advocate would not pre vent her from serving as a fair and impart ial court member. At the conclu sion of voir dire, TSgt MA wasUnited States v. F rank
, No. ACM 38854 (rem)

5 not challenged for cause, and the D efense elected to exercise its peremptorychallenge against another member. TSgt MA served on the panel that convicted and sentenced Appellant. Appellant submitted a dec laration with his initial assignments of error

ass erting that, notwithstanding TSgt MA’s responses at trial, she in fact did know Appellant. In particular, Appellant asserted he met TSgt MA when they both attended Noncommissioned Officer Academy (NCOA) in Germa ny for several weeks in late 2013. At that time, Appellant kn ew TSgt MA was dating TSgt JR, another student and Appellant’s suitemate at NCOA with whom he shared a common bathroom. Appellant would also see TSgt MA at the school on a daily basis and he knew she had orders to transfer from Germany to Incir lik AB
, where he was st ationed. Appellant further stat ed that after TSgt MA arrived at Incirlik AB he would see her around the base and they would make “small talk.” Appella nt indicated he also had prof es sional contact with TSgt MA because she was an “account custodian” that he dealt with. Appellant stated TSgt MA was aware prior to trial from speaking with Appellant that he wa s on administrative hold, but Appellant did not know if TSgt MA was aware of t he allegations involved in his court

- martial . Appellant stated he could not recall if he informed his trial defense counsel of his prior interactions with TSgt MA. Howeve r, Appellant asserted he was en titled to a new trial or, at a minimum, a fact

- finding heari ng pursuant to DuBay , 37 C.M.R. at 413, to explore TSgt MA’s failure to disclose her knowledge of Appellant. In response, the Government did not offer any evidence to rebut Appel

lant’s allegations but asserted Appellant had failed to demonstrate that TSgt MA failed to honestly answer any ques tion during voir dire or, assum ing she had, that honest answers would have indicated a basis for chal lenge for

cause. See United States v. Mack , 41 M.J. 51, 55 (C.M.A. 1994). On 6 December 201 6, we ordered a post

- trial fact finding hearing pursuant to DuBay , 37 C.M.R. at 413. 3 The hearing was held on 14 and 16 February 2017 at Joint

3 Our order instructed the military judge to answer the foll owing questions: 1. Did TSgt [MA] fail to honestly answer questions from the military judge regarding any prior knowledge of or relationship with Appel

lant? 2. What was the extent of TSgt [MA’s] interaction with Appellant, if any, prior to the commencemen t of Appellant’s court

- martial on 10 March 2015?

( Footnote continues on next page)United States v. F rank
, No. ACM 38854 (rem)

6 Base Andrews, Maryland. A military judge heard testimony from TSgt JR, Appellant, and TSgt MA; received a number of appellate exhibits; and heard argument from couns el for both sides. In Appellant’s testi mony, he elaborated on his interactions with TSgt MA at NCOA and at I ncirlik AB , including one face

- to

- face conversation at each location in addition to exchanging casual pleasan tries. For her part, TSgt MA maintained that she did not know Appellant or recall any interaction with him prior to the court

- martial. 4 However, in addition to TSgt MA’s prior interactions with Appellant, the military judge and parties explored TSgt MA’s prior experiences, pre

- dating and apart from her role as a trained victim advocate, in speaking with other Air Force members about their sexual activities after consum ing alcohol. TSgt MA’ s testimony on this point consisted sub stantially of the following: prior to TSgt MA becomi ng a victim advocate, other Air men came to her andspoke with her about sexual encounters they had with other Air Force members after consuming alcohol; these individuals were “unhappy” about the sex they had; they were “confused” an d wanted to “clarify” what had happened after a “drunk one

- night stand kind of thing.” TSgt MA stated this occurred “a couple” of times throughout her Air Force career. Both men and women approached her in this way. They were co

- workers and not close frien ds. TSgt MA did not deliberately solicit or induce others to discuss such matters with her. TSgt MA believed the individuals felt comfortable speaking to her; she

3. What, if anything, did TSgt [MA] know about Appellant’s pending
court

- martial and the underlying charged offense prior to the com

mencement of trial on 10 March 2015? 4. What was the extent of TSgt [MA’s] prior relationship or interac

tion, if any, with the victim of the charged offense, SSgt RT, or any other witness who testified at Appellant’s court

- martial? 5. If TSgt [MA] did fail to accurately answer the military judge’s ques

tions regarding prior kno wledge or relationship with Appellant, would accurate answers have provided a basis for a challenge for cause against TSgt [MA]? In addition, our order authorized the military judge to “address any other matters that may arise during the fact

- finding heari ng that he or she finds to be pertinent to the issues in question.”

4 TSgt MA testified that after the trial, she recognized Appellant’s name on an old email she had received in her capacity as a munitions account custodian. She informed someone at the bas e legal office of this. According to TSgt MA, once the unnamed individual(s) at the legal office clarified with her that she did not actually know Appellant , the matter was not pursued.United States v. F rank
, No. ACM 38854 (rem)

7 provided “ an ear ” and let them do most of the talking. TSgt MA would give them “suggestions f or the next time they were at a party” but “nev er told them that they were sex ually assaulted.” She did not bring up these experiences during voir dire because those situations were not similar to the offense Appellant was charged with, so she did not thin k of them. After the hearing, the military judge made a number of written findings of fact. She found TSgt MA had no actual bias against Appellant. However, with respect to TSgt MA’s prior knowledg e of and interaction with Appellant, the military judge fou nd TSgt MA did fail to honestly answer questions during voir dire. In particular, the military judge found TSgt MA did know Appellant at the time of trial, and found TSgt MA’s testimony at the DuBay hearing that she did not know him, did not recognize his name on the chargesheet, and did not recognize his face at trial to be “not credible.” Nevertheless, the military judge further found TSgt MA’s interactions with Appellant had been “superficial” an d would not have established a basis for a chal lenge for cause against TSgt MA for actual or implied bias had they been disclosed during voir dire. The military judge also found TSgt MA had no prior knowledge of the facts of the case nor any prior relation ship with SSgt RT or with any other witness who testified at trial.With respect to TSgt MA’s prior conversations with other Airmen regarding alcohol

- related sexual encounters, t he military judge found: [T]hroughout her career [TSgt MA] was a quasi

- Victim Advo

cate 5 for other Airmen and co

- workers, in that she would lis ten to and counsel those who doubted the consent of their sexualactivities. TSgt [MA] has an unassuming disposition that allows many people to feel comfortable sharing personal details of th eir intimate relationships, and many did so. She had multiple Airmen (both men and women) confide in her details of a sexual experience in which they were unsure about whether their sexual relations were consensual. She would listen to the Airmen who were “confused” about their experiences. She would always provide these co

- workers with “an ear” and suggestions on what to do and how to act if again placed in a similar situation. All of the incidents the Airmen co

- workers discusse d with her involved alcohol con sumption followed by a sexual encounte r that caused confu sion as to whether consent

5 The military judge apparently coined the term “quasi

- Victim Advocat e”; TSgt MA never used it.United States v. F rank
, No. ACM 38854 (rem)

8existed. These sexual situations were all sexual encounters involving two Airmen. TSgt [MA] considered all of these people she counseled “co

- workers”

— not close to her an d not m embers of her family. She remem bers being asked at the trial about knowing someone who had been a victim of a similar off ense to that charged on the Fly er, but she did not think her co

- workers’ experiences were similar to the charged offense. Additi onally, when asked at the DuBay hearing if she viewed these co

workers as victims, she was non

- responsive and instead talked about providing an ear for them. (Footnotes omitted ) (footnote inserted). The military judge did not specifically find that TSgt M A failed to honestly answer voir dire questions implicating her past ex periences speaking with Airmen about their alcohol

- related sexual en counters. However, the military judge noted TSgt MA w as asked the following two ques tions during voir dire: “[A]ny of you because of a personal experience with yourself or involving someone that’s close to you, been involved or affected by a situation involving sexual assault that you believe would affect your ability to sit impartially or without bias as a court member on this particu lar case?”; and “[Y]ou’ve neveractually interacted with somebody who’s a complainant of sexual assault, correct?” The military judge concluded her analysis as follows: [TSgt MA] determined that the co

- workers were not close enough to her t o disclose to the Court. She also determined that the non

- consensual sexual encounters of her co

- workers were not similar to the charged offense she read on the Flyer such that she would have had to disclose those encounters. However, there were at lea st t wo questions asked that pro vided her the opportunity to divulge her past role assisting Airmen who were victims. Cons idering the totality of the cir cumstances

— including her position as a Victim Advocate at the time of the trial, her long desire to be a Vic tim Advocate since 2006, her proactive counseling of Airmen co

- workers questioning the consensual nature of their sexual relation ships

— she has a considerable interest in sexual assaults. That fact, coupled with the fact that TSgt [MA] had passing knowledge of the Appellant that she failed to disclose, and was specifically trained as avictim advocate, makes it, at the very least, a close call for implied bias. An objective observer may have substantial doubt about the fairness of the Appel lant’s court

- marti al if she sat as a member. When an implied bias challenge for cause is close,United States v. F rank
, No. ACM 38854 (rem)

9 the liberal grant mandate for defense applies. Therefore, a challenge for cause for im plied bias exists. In summary, the military judge concluded: (1) there was no actual bias; (2) TSgt MA failed to honestly answer questions implicating her prior knowledge of Appellant, but those interactions did not establish a basis for challenge for cause for implied bias; and (3) a basis for challenge for cause for implied bias existed with r egard to TSgt MA’s interactions with other Airmen regarding alcohol

- related sexual encounters, but the military judge did not specifically find TSgt MA failed to honestly answer questions im plicating those experiences.

II. D ISCUSSION
A. Law

A court member’s failure to disclose information in voir dire entitles anappellant to a new trial when the appellant demonstrates both (1) the member failed to answer honestly a material question on voir dire, and (2) a correct response would have provide d a valid basis for a challenge for cause. Mack , 41 M.J. at 55. “A question is ‘material’ if it has ‘some logical connection with the consequential facts’ of the case, or is ‘[o]f such a nature that knowledge of them would affect a person’s decision

- making .’” Commisso , 76 M.J. at 322 (quoting United States v. Albaaj , 65 M.J. 167, 170 (C.A.A.F. 2007) ) . “[T]he 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.” Id . (citing Albaaj , 65 M.J. at 170).

Rule for Courts

- Martial (R.C.M.) 912(f)(1)(N) provides that a member shall be excused for caus e whenever it appears he or she “[s]hould not sit as a member in the interest of having the court

- martial free fro m substantial doubt as to legality, fairness, and impartiality.” “This rule encom passes challenges based upon both actual and implied bias.” United States v. Elfayoumi
, 66 M.J. 354, 356 (C.A.A.F. 2008) (citing United States v. Clay , 64 M.J. 274, 276 (C.A.A .F. 2007)). “Actual bias is personal bias which will not yield to the military judge’s instructions and the evidence presented at trial.” United States v. Nash , 71 M.J. 83, 88 (C.A.A.F. 2012) (citing United States v. Reynolds , 23 M.J. 292, 294 (C.M.A. 1987 )). Implied bias “exists where the presence of a member on the panel would cause the public to think ‘that the accused received something less than a court of fair, impartial members,’ injuring the public’s perception of the fairness of the military justic e system.” Commisso
, 76 M.J. at 323 (quoting United States v. Townsend , 65 M.J. 460, 463 (C.A.A.F. 2008)). “Implied bias exists when .

. . most people in the same position as the court member would be prejudiced.” Townsend , 65 M.J. at 463. The test for imp lied bias is “objective, viewed through the eyes of the public,United States v. F rank
, No. ACM 38854 (rem)

10 foc using on the appearance of fair ness.” United States v. Bagstad , 68 M.J. 460, 462 (C.A.A.F. 2010) (quoting Clay , 64 M.J. at 276) (internal quotation marks omitted). “The hypothetical ‘public ’ is assumed to be familiar with the mil itary justice system.” Id . (cit ing United States v. Downing , 56 M.J. 419, 423 (C.A.A.F. 2002)). In general, when a military judge conducts a DuBay hearing, we review the findings of fact under a “clearly erroneous” s tandard and conclusions of law under a de novo standard. See United Sta tes v. Wean , 45 M.J. 461, 463 (C.A.A.F. 1995). W e re view rulings on challenges for implied bias “pursuantto a standard that is less deferential than abuse of discretion, but more deferential than de novo review.” United States v. Peters , 74 M.J. 31, 33 (C.A.A.F. 2015) (quoting United States v. Moreno , 63 M .J. 129, 134 (C.A.A.F. 2006) ; United States v. Napoleon , 46 M.J. 279, 283 (C.A.A.F. 1997)) (internal quotation marks omit ted). This is because “cases of implied bias are based upon an objective test and therefore the military judge is given less deference. ” Id . at34. “The military judge is also mandated to err on the side of granting a challenge. This is what is meant by the liberal grant mandate.” Id

. Nevertheless, the CAAF has stated that when there is no actual bias, implied bias should be invoked rarel y. United States v. Wiesen , 56 M.J. 172, 174 (C.A.A.F. 2001) (citing United States v. Rome , 47 M.J. 467, 469 (C.A.A.F. 1998)).

B. Analysis Upon our in i tial review, we applied the two

- part test articulated in Mack to the findings and conclusions made by the mi litary judge who conducted the DuBay hearing. See Mack
, 41 M.J. at 55. The CAAF has directed us to conduct a new Article 66 , UCMJ, review in light of its decision in Commisso , 76 M.J. at 323

– 24. In that case, the CAAF set aside the findings and sentence of
a court

- martial where three of ten panel members gave inaccurate statements during voir dire to the effect that they had no prior knowledge of thecase, when in fact all three had been briefed on the case from the alleged victim’s perspective multiple tim es when they participated in the installation’s recurring Sexual Assaul t Review Board meetings. Id . at 317

– 18, 322

– 25. Moreover, during the court

- martial all three remembered that they had been briefed on the case, but all three failed to correct their ear lier, inaccurate statements during voir dire before the trial concluded. Id. at 320. Because the members failed to “honestly” answer the voir dire questions, and because honest answers would have provided a valid basis for challenge for cause, the CAAF set aside the findings and sentence. Id . at 322

– 23, 325. The primary significa nce of Commisso to the instant case is not that it is factually similar, which it is not, nor that it overruled Mack , which our original opinion relied on. On the contrary, Commisso cited and relied on Mack
, which remains the seminal case in assessing whet her court member dishon-United States v. F rank
, No. ACM 38854 (rem)

11 esty during voir dire requires reversal on appeal. See id . at 322. Rather, in Commisso the CAAF clarified that Mack’s requirement that court membersanswer voir dire questions “honestly” imposes an objective standard of accuracy rath er than a subjective standard of lack of intent to deceive. See id

. (citing Albaaj , 65 M.J. at 170) . Therefore, in light of Commisso , we address the record in the instant case with the objective standard of accuracy in mind.
First, w e find no abuse of disc retion in the military judge’s conclusion that there was no showing of actual bias against Appellant. TSgt MA affirmatively indicated at various points during voir dire that she could follow the military judge’s instructions, hold the Government to its bur den of proof, and serve as a fair and impartial court member. None of her answers at trial or during the DuBay hearing, nor any other evidence adduced, un dermine the military judge’s conclusion that TS gt MA was willing to con sider the evidence and follow t he court’s instructions.

We f ind the military judge’s finding t hat TSgt MA did not honestly answer voir dire questions regarding her prior knowledge of Appellant was notclearly erroneous. Appellant’s testimony supported the military judge’s findings that Appellant met TSgt MA at NCOA and continued to intera ct with her at Incirlik AB , including one conversation in which Appel lant shared that he was engaged to be married and was on administrative hold. Based on her in

- court observations, the military judge specifically found Appellant’s testimony was credible and TSgt MA’s denials were not. The military judge’s conclusion that, although the relationship “did not extend beyond simple recognition and small talk,” TSgt MA failed to honestly answer voir dire que stions as to whether she knew Ap pellant is not a clear error. See Wean , 45 M.J. at 463. We also agree with the military judge’s conclusion that TSgt MA’s prior interactions with Appellant, if disclosed in voir dire, would not have pro vided a basis for a ch allenge for cause fo r implied bias. The relationship Appel lant described was both cordial and superficial. There is no indication TSgt MA had any knowledge that Appellant was facing a court

- martial or of the underlying facts, that she personally knew any o f the witnesses, or that she received any other information that would have adversely affected her view of Appellant prior to the commencement of the trial. Considering the totality of the circumstances, a member of t he public familiar with the mil itary justice system would not doubt the legality, fairness, or impartiality of Appellant’s trial based on the limited interactions between Appellant and TSgt MA. See R.C.M. 912(f)(1)(N) ; Commisso , 76 M.J. at 323. Therefore, TSgt MA’s failure to disclose those i nteractions does not entitle Appellant to a new trial. Turning to TSgt MA’s failure to disclose her experiences with Airmen who spoke with her regarding alcohol

- related sexual encounters, we apply theUnited States v. F rank
, No. ACM 38854 (rem)

12 same two

- part test for relief set forth in Mack and restated in Commisso , beginning with whether TSgt MA failed to honestly answer a material question during voir dire. Commisso , 76 M.J. at 322; Mack
, 41 M.J. at 55. We again note the military judge did not specifically find TSgt MA failed to honestly

a nswer any question in voir dire that implicated these experiences. The military judge did identify two qu estions that would have “provid ed [TSgt MA]the opportunity to divulge” this “past role,” but this falls well short of a finding TSgt MA answered false ly . Indeed, the military judge found as fact that TSgt MA considered these Airmen co

- workers and not “close to her or members of her family.” In addition, the military judge spe cifically f ound TSgt MA considered these Airmen “victims” or c omplainants of sex ual assault.

In the absence of a specific finding by the mil itary judge that TSgt MA did or did not answer these questions “honestly”

— meaning, in light of Commisso
, “accurately”

— we conduct our own de novo review. We find the record fails to establi sh that TSgt MA did not accurately answer any voir dire question that implicated her past interactions with Airmen who spoke with her regarding their alco hol

- related sexual experiences.The first voir dire question the military judge found to be potentially impli cated by these experiences was: “[A]ny of you because of a personal experience with yourself or involving someo ne that’s close to you, been in volved or affected by a situation involving sexual assault that you believe would affect your ability to sit impar tially or without bias as a court mem ber on this particular case?” The record does not support a finding TSgt MA failed to answer this question accurately . First, TSgt MA testified these situations involved

co

- workers, not close frien ds, family members, or any one “close to her,” as specified in the question. Second, TSgt MA never identified these individuals as victims of sexual assault. She did not tell any of the individuals she spoke with that they were victims of sexual as sault. There is no indication a ny of them ever reported being sexually as saulted. When defense counsel asked “[Y]ou’ve actually had individuals come to you and express that they believed themselves to be victims of sexual assault,” TSgt MA responded, “No. They were trying to clarify wha t actual ly happened.” Third, even if TSgt MA had identified these individuals as sexual assault victims, she could have accurately answered the voir dire question she was asked in the negative so long as she believed she could “sit impartially or without b ias.” Fo r each of these reasons, so far as the record indicates, “No” was an accurate answer to the question asked. The second voir dire question the milit ary judge identified as “provid ing an opportunity” to discuss these experiences was: “[ Y]ou’ve never actu ally interacted with somebody who’s a com plainant of sexual assault, correct?” Again the record does not support a finding that TSgt MA did not answer thisUnited States v. F rank
, No. ACM 38854 (rem)

13 question accurately . First, this question was asked by the military judge during indi vidual voir dire as a follow

- up question in the specific context of TSgt MA’s official role as a trained victim advocate, which she disclosed and which was explored during voir dire. There is no evidence that any of these c onversations with co

- workers oc curred during TSgt MA’s tenure as an official victi m advocate at Incirlik AB

. 6 Second, TSgt MA did not testify that she considered any of these individuals to be “victims” of sexual assault, and there is no evidence that any of them actually made a sexual assault compl aint. Onthe contrary, as stated above, she resisted defense counsel’s attempt to characterize these individuals as victims of sexual assault. Again, for each of these re asons, the record indicates “No” was a n accurate answer to this question. Different qu estions might have elici ted additional information at trial, as they did at the DuBay hearing. However, neither Mack nor Commisso require s court members to answer questions that are not asked. Because Appellant has faile d to show TSgt MA did not accurate ly answer any question posed in voir dire that implicated her past conversations with co

- workers regarding these alcohol

- related sexual encounters, he is not entitled to a new trial. Therefore, it is unnecessary to decide whether the military judge , informed by the liberal grant mandate, erred in concluding that the disclosure of TSgt MA’s past conversations with co

- workers regardin g alcohol

- related sexual encoun ters, combined with her long

- standing interest in being a victim advocate, her status as a victim advocate at the time o f trial, and her failure to dis close her prior knowledge of Appellant, established a basis for a challenge for cause for implied bias. 7

6 As stated above, we recognize that under Commisso court members must provide objectively accurate responses to voir dire questions; however, we do not interpret Commisso to require court members to extract questions from the co ntext in which they are asked or to divine the questioner’s ultimate intent before answering. See Commisso , 76 M.J. at 322.

7 Although we do not address the military judge’s finding of implied bias, we note her written findings and conclusions mis character ize TSgt MA’s testimony in several respects. For example, contrary to the military judge’s finding, TSgt MA did not testify that “many” Airmen confided in her about these sexual encounters; TSgt MA did not de scribe her co

- workers’ experiences as “non

- conse nsual sexual encounters,” as the mil itary judge calls them; and the military judge’s assertion that the voir dire question “provided [TSgt MA] the opportunity to divulge her past role assisting Airmen who were victims” is misleading because TSgt MA did not characterize these Airmen as “victims.”United States v. F rank
, No. ACM 38854 (rem)

14 III. C ONCLUSION The approved findings and sentence are correct in law and fact, and no error materially prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings and sentence are AFFIRMED

.

FOR THE COURT

CAROL K. JOYCE Clerk of the Court