## UNITED STATES ARMY COUR T 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 In telligence Center of Excell ence and Fort Huachuca Douglas K. Watkin s, Military Judge Colonel Timothy J. Cody, Sta ff Judge Advocate (pretrial) Colonel Joseph A. Ke eler, Staff Judge Advo cate (post-trial)

For Appellant: Colone l 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

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

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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.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 pl eas, of one specification of failure to obey a lawful order, one specification of fa lse official statement, two specifications of rape, one specification of larceny, and one specification of adultery , in violation of Articles 92, 107, 120, 121, an d 134, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 907, 920, 921, and 934 [hereinafter UCMJ]. The convening authorit y approved the adjudged sentence of a dishonorable di scharge and confinement for two years.

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

2 Appellant assigns tw o errors, one of wh ich warrants discus sion 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 EXPECT ATION” 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, tr ial defense counsel asked about the panel members’ attendance at training sessi ons regarding sexual assault prevention and response.

All of the members indicated they had received such training in th e previous twelve months. Colonel (COL) SK and several other panel members indicated that in the context of the training they had been briefe d on statistics regard ing the incidence of false reports. All panel members responded in the negative when asked whether they

believed “all or most sexu al assault allegations are tr ue” and whether “all or most sexual assault allegations brought to court-martial are true.” Then, all panel members responded affirmativel y when defense counsel aske d: “How many on this panel believe that the Army ha s a sexual assault problem?”

The defense continued by specifically focusing on the prosecution of sexual assault allegations. All panel members re sponded negatively wh en asked: whether they “believe that the Ar my is not doing enough to prosecute alleged sexual assaults?”; whether they felt “the best thing to do [in resp onse to such an allegation] is to bring that case to trial, so that our Soldiers see that the Army is serious about prosecuting sexual assa ult?”; and, whether any of them believed acquit tal of such a charge would “contribute to the perception that sexua l assaults are not taken seriously in the military?”

Defense counsel subsequently followed up on several of th ese 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 se xual assault are false and you had mentioned y ou did have some familiarity with those statistics. What, if any, statistics ha ve you been given regarding how often a re port 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 theGALVAN—ARMY 20140320

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

Q. You don’t remember th em specifically; do you

remember if the statistics were one way or the other saying “On average, most sexu al assault reports are not false,” or “On average, most sexual assau lt 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 st atistics that some reports

are inaccurate.

Q. I realize I just asked th is to you, sir, but I’m just trying to ask it in different wa ys to make sure I get at it. Do you feel that there was, ev en though it wasn’t couched in that way, when they gave you those statistics and some reports are inaccurate or false and othe rs are not; do you remember if, specifically, ther e was some type of talk of “More of these reports are no t false” of “M ore of these reports are true than are false.” Things like that?

A. No. I would say probab ly 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 numbe r 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.GALVAN—ARMY 20140320

4 Q. Sir, on one of th e questions I asked of everybody and everyb ody gave an affirmative answer was whether or not you all beli eve the Army had a sexual assault problem. You were one of every body who said “Yes, I believe the Army has a sexual assaul t problem.” Why do you believe that, sir?

A. Well, I mean it’s like anything else. I’ve been in the military a lo ng 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 diffe rent from, say, any college campus anywhere in th e United States? For example, it’s more prevalent here th an in other places?

A. Well, I’ve seen the re ports where the Army says it’s higher on averag e 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. [Affirmativ e response.]

After the military judge questioned CO L 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 co unsel] 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 th is case solely on the facts

and the evidence that co me before you, and the instructions that are provid ed by the military judge?

A. Absolutely, ma’am.GALVAN—ARMY 20140320

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

Colonel [SK] said he had h eard statistics that there are not a large number of fals e reports of se xual assault

and that he has no reason to doubt the truth of those statistics, so he’s got a go ing in position that, on the average, most of those report s of sexual assault are going

to be true.

Government counse l opposed the challe nge, arguing, inter alia :

He believes that some repo rts are inaccurate. There were not a large number of fals e reports. He did say that the reports that [sic ] are higher in the Army than with civilians, but that the Army is trying to reso lve 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 th ey 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 ju dge reasoned:

I’ve considered the challe nge for cause on the basis of both actual and implie d bias and the mandate to liberally grant defense chal lenges. 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 wh at [sic] a member’s belief about what they might be. I understand that the defense might be concerned with thei r bringing in an expectation but Colonel [SK], specifically, sa id he could pu t all of that aside and follow my instructions in this case. He actually said “Absolutely,” so th at challenge is denied.

Our superior court has es tablished the standard of review in cases such as appellant’s:GALVAN—ARMY 20140320

6 “A military judge’s ruling on a challenge for cause is

reviewed for an abus e of discretion. Military judges are afforded a high degr ee of deference on rulings involving

actual bias. This reflec ts, among other things, the importance of demeanor in eval uating the credibility of a member’s answers during voir di re. By contra st, issues of implied bias are reviewed unde r a standard less deferential

than abuse of disc retion, but more defe rential 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 establishi ng that grounds fo r a challenge exis t 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 libe ral-grant mand ate 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 eviden ce 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 evalua tion of implied bias has a slightly different focus, based on an “objective test” and “the consideration of the public’s perception of fairness in ha ving 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.” Appe llee’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 se t aside . . . any prior exposure to SHARP training and statis tics about false repo rts, Colonel SK said he could do so . . . .” Appellee’s Br. 16. The gover nment also writes that COL SK “unequivoc ally stated that he could put aside the statistics on fa lse reports and follow the mil itary judge’s instructions.” Appellee’s Br . 19. In fact, COL SK wa s not specific ally asked by either government counsel or the military judge whether he recognized that such statistics had no bearing on hi s duties in appellant's case. Nonetheless, trial defenseGALVAN—ARMY 20140320

7 counsel did not ask COL SK whether his expo sure to false report ing statistics would somehow diminish his ability to impartially evaluate appe llant’s case in accordance

with the law and evidence. Based on the circumstances, includ ing COL SK’s vague

recollection of such statistics , we find appellant did not meet his burden to establish that COL SK posse ssed actual bias.

Turning to the i ssue of implied bias, we conclude that members of the public would perceive no illegality, unfairness or part iality with COL SK ’s service as a panel member. See R.C.M. 912(f)(1)(N). In making this ju dgment, we note his disagreement during group voir dire with the propositions that al l or most reports of

sexual assault are true or th at all or most sexual assault allegations whic h proceed to

courts-martial are true. We also note his unequivocal re sponse—“Absolutely, ma’am”—to the question of wh ether he could set aside the possibility th at the Army has a larger incidence of sexual assaults than the civ ilian community a nd decide this case solely on the ev idence and instructions thereo n. We are conf ident that COL SK’s answer was not depend ent on any particularized tr aining information to which he was exposed and, in stead, represente d his ability and willin gness to serve as an impartial fact finder, “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 (1 995)). We find the military judge did not abuse his discretion in denying th e challenge for cause, even in light of the liberal gr ant mandate.

CONCLUSION

The findings and sentence are AFFIRMED.

Senior Judge HAIGHT and Judge WOLFE concur.

FOR THE COURT:

MALCOLM H. SQUIRES JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: