UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

________________________

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: Dishonorable discharge, confinement for 1 year, 

and reduction 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 court, in which 

Chief 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This is an unpublished opinion and, as such, does not serve as 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. Frank, 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 discharge, confinement for one year, and reduction to E-1. The convening authority approved the sentence as adjudged but waived the mandatory forfeitures of Appellant’s pay and allowances for the benefit of Appellant’s child.

Upon our initial review, Appellant contended: (1) a member of the courtmartial 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 military judge erred in admitting evidence under Military Rule of Evidence (Mil. R. Evid.) 413 and providing a related instruction; 

(4) the military judge erroneously instructed the court members regarding 

the burden of proof; and (5) the military judge erred by failing to put the 

court members into deliberations to reconsider the sentence. In addition, we 

considered whether Appellant was entitled to relief due to a facially unreasonable delay in the appellate review of his court-martial. We determined a 

post-trial 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 affirmed 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 States 

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 following issues:

I. WHETHER TSGT MA SHOULD HAVE BEEN DISMISSED FROM 

THE COURT-MARTIAL FOR IMPLIED BIAS.

II. WHETHER THE MILITARY JUDGE ERRED IN ADMITTING 

EVIDENCE 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. Frank, 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 warranted 

with 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. BACKGROUND

Appellant was assigned to Incirlik Air Base (AB), Turkey. He met Staff 

Sergeant (SSgt) RT at an on-base training event and they began communicating with one another by instant message and Facebook. In April 2014, Appellant and SSgt RT attended an 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 next 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 not consenting. She did not initially report this incident. 

SSgt RT had limited contact with Appellant after the April 2014 incident. 

However, on the night of 28 June 2014, SSgt RT encountered Appellant 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. SSgt RT later 

testified she followed Appellant to his room. When they arrived, Appellant 

opened the door and pointed to the headband, which was on a table inside. 

SSgt RT entered the room to get her headband. When she turned around, she 

saw Appellant had closed the door behind them and lowered his pants and 

underwear. 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 decision 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. Frank, No. ACM 38854 (rem)

4

down to his penis, which he shoved in her mouth. 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 assault, 

which ultimately led to her interview by the Air Force Office of Special Investigations. Appellant was subsequently 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 Sergeant 

(TSgt) MA was selected to serve as one of the court members. During group 

voir dire of the court members by the military judge, TSgt MA indicated she 

did not know Appellant, nor did she know anyone named in the specification 

of the charge. She also responded negatively when the military 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 identified 

herself as a victim advocate. During individual voir dire, TSgt MA explained 

her role as a victim advocate involved providing services and support to individuals who reported being victims of sexual assault, but not assessing a victim’s veracity or assuming the guilt of the alleged perpetrator. TSgt MA had 

undergone training and attended meetings for victim advocates, 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 assigned to assist a victim of an alleged sexual assault. When the military judge clarified, 

“[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 prevent her from serving as a 

fair and impartial court member. At the conclusion of voir dire, TSgt MA was 
United States v. Frank, No. ACM 38854 (rem)

5

not challenged for cause, and the Defense elected to exercise its peremptory 

challenge against another member. TSgt MA served on the panel that convicted and sentenced Appellant.

Appellant submitted a declaration with his initial assignments of error 

asserting 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 Germany 

for several weeks in late 2013. At that time, Appellant knew 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 Incirlik AB, where he was stationed. Appellant further stated that 

after TSgt MA arrived at Incirlik AB he would see her around the base and 

they would make “small talk.” Appellant indicated he also had professional 

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 was on administrative hold, but Appellant did not know if 

TSgt MA was aware of the 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. However, Appellant asserted he was entitled to a new trial or, at a minimum, a fact-finding hearing 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 Appellant’s allegations but asserted Appellant had failed to demonstrate that TSgt 

MA failed to honestly answer any question during voir dire or, assuming she 

had, that honest answers would have indicated a basis for challenge for 

cause. See United States v. Mack, 41 M.J. 51, 55 (C.M.A. 1994). On 6 December 2016, we ordered a post-trial factfinding 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 following questions:

1. Did TSgt [MA] fail to honestly answer questions from the military 

judge regarding any prior knowledge of or relationship with Appellant?

2. What was the extent of TSgt [MA’s] interaction with Appellant, if 

any, prior to the commencement of Appellant’s court-martial on 10 

March 2015?

(Footnote continues on next page)
United States v. Frank, 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 counsel for both sides. In Appellant’s testimony, he elaborated 

on his interactions with TSgt MA at NCOA and at Incirlik AB, including one

face-to-face conversation at each location in addition to exchanging casual 

pleasantries. 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 consuming alcohol.

TSgt MA’s testimony on this point consisted substantially of the following: 

prior to TSgt MA becoming a victim advocate, other Airmen came to her and 

spoke 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” and 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 friends. 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 commencement of trial on 10 March 2015?

4. What was the extent of TSgt [MA’s] prior relationship or interaction, 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 questions regarding prior knowledge 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 hearing 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 base 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. Frank, No. ACM 38854 (rem)

7

provided “an ear” and let them do most of the talking. TSgt MA would give 

them “suggestions for the next time they were at a party” but “never told 

them that they were sexually 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 think 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 knowledge of and interaction with Appellant, 

the military judge found 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 charge 

sheet, 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” and would not have established a basis for a challenge 

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 relationship 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, the military judge found:

[T]hroughout her career [TSgt MA] was a quasi-Victim Advocate5 for other Airmen and co-workers, in that she would listen 

to and counsel those who doubted the consent of their sexual 

activities. TSgt [MA] has an unassuming disposition that allows many people to feel comfortable sharing personal details 

of their 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 discussed with her involved alcohol consumption followed by a 

sexual encounter that caused confusion as to whether consent 

 

5 The military judge apparently coined the term “quasi-Victim Advocate”; TSgt MA 

never used it.
United States v. Frank, No. ACM 38854 (rem)

8

existed. 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 and not members 

of her family. She remembers being asked at the trial about 

knowing someone who had been a victim of a similar offense to 

that charged on the Flyer, but she did not think her co-workers’ 

experiences were similar to the charged offense. Additionally, 

when asked at the DuBay hearing if she viewed these coworkers 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 MA failed to honestly answer voir dire questions implicating her past experiences speaking with 

Airmen about their alcohol-related sexual encounters. However, the military 

judge noted TSgt MA was asked the following two questions 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 particular case?”; and “[Y]ou’ve never 

actually 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 to 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 least two questions asked that provided 

her the opportunity to divulge her past role assisting Airmen 

who were victims. Considering the totality of the circumstances—including her position as a Victim Advocate at the time of 

the trial, her long desire to be a Victim Advocate since 2006, 

her proactive counseling of Airmen co-workers questioning the 

consensual nature of their sexual relationships—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 a 

victim 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 Appellant’s court-martial if she sat as 

a member. When an implied bias challenge for cause is close, 
United States v. Frank, No. ACM 38854 (rem)

9

the liberal grant mandate for defense applies. Therefore, a 

challenge for cause for implied 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 regard 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 implicating 

those experiences.

II. DISCUSSION

A. Law

A court member’s failure to disclose information in voir dire entitles an 

appellant 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 provided 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 cause whenever it appears he or she “[s]hould not sit as a 

member in the interest of having the court-martial free from substantial 

doubt as to legality, fairness, and impartiality.” “This rule encompasses 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 justice 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 implied bias is “objective, viewed through the eyes of the public, 
United States v. Frank, No. ACM 38854 (rem)

10

focusing on the appearance of fairness.” 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 

military justice system.” Id. (citing 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” standard and conclusions of 

law under a de novo standard. See United States v. Wean, 45 M.J. 461, 463

(C.A.A.F. 1995). We review rulings on challenges for implied bias “pursuant 

to 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 omitted). This is because “cases of implied bias are based upon an 

objective test and therefore the military judge is given less deference.” Id. at 

34. “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 rarely. 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 initial review, we applied the two-part test articulated in Mack

to the findings and conclusions made by the military 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 the 

case, when in fact all three had been briefed on the case from the alleged victim’s perspective multiple times when they participated in the installation’s 

recurring Sexual Assault 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 earlier, 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 significance 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 whether court member dishon-
United States v. Frank, 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 members 

answer voir dire questions “honestly” imposes an objective standard of accuracy rather 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, we find no abuse of discretion 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 burden 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, undermine the military 

judge’s conclusion that TSgt MA was willing to consider the evidence and follow the court’s instructions. 

We find the military judge’s finding that TSgt MA did not honestly answer voir dire questions regarding her prior knowledge of Appellant was not 

clearly erroneous. Appellant’s testimony supported the military judge’s findings that Appellant met TSgt MA at NCOA and continued to interact with 

her at Incirlik AB, including one conversation in which Appellant 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 questions 

as to whether she knew Appellant 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 provided 

a basis for a challenge for cause for implied bias. The relationship Appellant 

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 of 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 the public familiar with the military 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 interactions 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 the 
United States v. Frank, 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 

answer any question in voir dire that implicated these experiences. The military judge did identify two questions that would have “provided [TSgt MA] 

the opportunity to divulge” this “past role,” but this falls well short of a finding TSgt MA answered falsely. 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 specifically found TSgt MA 

considered these Airmen “victims” or complainants of sexual assault. 

In the absence of a specific finding by the military 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 

establish that TSgt MA did not accurately answer any voir dire question that 

implicated her past interactions with Airmen who spoke with her regarding 

their alcohol-related sexual experiences.

The first voir dire question the military judge found to be potentially implicated by these experiences was: “[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 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 friends, family members, or anyone “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 assault. There is no indication any of 

them ever reported being sexually assaulted. 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 what actually 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 bias.” For 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 military judge identified as “providing 

an opportunity” to discuss these experiences was: “[Y]ou’ve never actually interacted with somebody who’s a complainant of sexual assault, correct?” 

Again the record does not support a finding that TSgt MA did not answer this 
United States v. Frank, No. ACM 38854 (rem)

13

question accurately. First, this question was asked by the military judge during individual 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 conversations with co-workers occurred during TSgt MA’s tenure as an official victim 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 complaint. On 

the contrary, as stated above, she resisted defense counsel’s attempt to characterize these individuals as victims of sexual assault. Again, for each of 

these reasons, the record indicates “No” was an accurate answer to this question.

Different questions might have elicited additional information at trial, as 

they did at the DuBay hearing. However, neither Mack nor Commisso requires court members to answer questions that are not asked. Because Appellant has failed to show TSgt MA did not accurately 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 regarding alcohol-related 

sexual encounters, combined with her long-standing interest in being a victim

advocate, her status as a victim advocate at the time of trial, and her failure 

to disclose 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 context 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 mischaracterize 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 

describe her co-workers’ experiences as “non-consensual sexual encounters,” as the 

military 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. Frank, No. ACM 38854 (rem)

14

III. CONCLUSION

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