United States v. Andersen

UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Airman First Class ROBERT L. ANDERSEN JR.
United States Air Force

ACM 38466

02 February 2015

Sentence adjudged 31 May 2013 by GCM convened at Sheppard Air Force
Base, Texas. Military Judge: J. Wesley Moore.

Approved Sentence: Dishonorable discharge, confinement for 5 years,
forfeiture of all pay and allowances, reduction to E-1, and a reprimand.

Appellate Counsel for the Appellant: Major Nicholas D. Carter and
Daniel Conway, Esquire.

Appellate Counsel for the United States: Major Daniel J. Breen;
Major Roberto Ramírez; and Gerald R. Bruce, Esquire.

Before

MITCHELL, SANTORO, and WEBER
Appellate Military Judges

OPINION OF THE COURT

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent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

SANTORO, Judge:

A general court-martial composed of officer members convicted the appellant,
contrary to his pleas, of the attempted forcible sodomy and rape of an Airman Basic, in
violation of Articles 80 and 120,1 UCMJ, 10 U.S.C. §§ 880, 934. He was found not

1
The charged events took place on 8 June 2012, meaning the appellant was charged and convicted under the version
of Article 120, UCMJ, 10 U.S.C. § 920, which applies to offenses committed between 1 October 2007 through
27 June 2012. See Manual for Courts-Martial, United States (MCM), Part IV, ¶ 45 (2012 ed.); MCM, app. 28.
guilty of forcibly sodomizing the Airman Basic on the same occasion pursuant to Article
125, UCMJ, 10 U.S.C. § 925. The adjudged and approved sentence was a dishonorable
discharge, confinement for 5 years, forfeiture of all pay and allowances, reduction to E-1,
and a reprimand.

Before us, the appellant asserts: (1) the military judge abused his discretion in
denying a challenge for cause against Captain (Capt) BK, (2) the evidence of attempted
forcible sodomy and rape is factually insufficient, (3) comments by the Commander in
Chief and other senior leaders constituted unlawful command influence (UCI), and
(4) the military judge erred in his findings instructions to the members. We disagree and
affirm.

Background

In June 2012, the appellant and the victim were attending technical training at
Sheppard Air Force Base, Texas. They were in different squadrons and although they
knew each other, they did not have a romantic or other close relationship.

On 8 June 2012, after their squadrons had been released for the weekend, the
victim went to the mini-mall on base. The appellant and several of his friends were also
at one of the mini-mall concessionaires drinking beer. After a time, the victim noticed
the group and joined them. She began drinking and estimated that she had two large
beers that may have totaled 48 ounces or more.

The victim had planned to spend that evening with Airman First Class (A1C) BB
watching movies. However, by the time A1C BB arrived, the victim decided she wanted
to go to dinner with the appellant and the other Airmen with whom she had been
drinking. A1C BB joined the group for dinner.

In the cab on the way to dinner, the appellant sat next to the victim and, while
engaged in conversation with the others, put his arm around her shoulders. The appellant
seated himself next to the victim at the restaurant. Other than A1C BB, who was
underage at the time, the entire group continued drinking. During dinner, the appellant
engaged in what both the victim and A1C BB took as inappropriate physical contact: he
put his hand on the victim’s hand, which was resting on her leg, and later put his hand on
her leg toward the top of her thigh. In response, A1C BB confronted the appellant and
reminded him that he (the appellant) was married.

The group took a cab back to the base when dinner was finished. By this point,
A1C BB had left the group. The victim, although describing herself as highly
intoxicated, decided to go to an on-base park to socialize with members of her
brother-flight. The appellant also went to the park. After socializing for a period of time,

2 ACM 38466
the victim told the appellant she was feeling sick and dizzy and was going to return to her
squadron.

The appellant followed her. As they approached the victim’s dormitory, the
appellant suggested that she walk around to allow the alcohol to wear off before she
walked into the building and past the charge of quarters on duty. The victim agreed, and
they continued walking again.

The victim testified that as they approached another building, the appellant tried to
kiss her. She reminded him that he was married, turned her head, put her hands between
them, and told him “no.” The appellant pulled the drunk victim to the ground and put all
of his weight on top of her. The victim tried to move her arms and kicked at the ground
to get out from underneath him but was unable to get away.

The appellant pulled the victim’s leggings down and told her to “shut up and be
quiet,” as she cried and told him “no.” He unzipped his own pants and had sexual
intercourse with her while she continued to protest. As he had sex with her, the appellant
repeatedly asked her to tell him she loved him. She did not do so.

She passed out while his penis was still inside her. When she came to, he was
pulling at her hair, trying to bring her head to his waist and his exposed penis. He told
her repeatedly, “You’re going to go down on me.” The victim was able to push him
away and get up on one knee, but he pushed her to the ground again. She was eventually
able to kick him and get away.

The victim remained in the area and passed out again. She was found the next
morning by a member of the Army who woke her up and told her the police had been
called. The victim made her way to the dining facility where she was found crying in the
bathroom. She initially denied that she had been assaulted. Later that day, A1C BB
suggested she contact the Sexual Assault Response Coordinator (SARC) and go to the
hospital, which she eventually did.

During the investigation that ensued, the appellant first denied any sexual contact
occurred between himself and the victim, before stating they had consensual sexual
intercourse. He described the incident as “two adults” who both got “entirely too drunk.”
The appellant also stated he was the victim of any sexual activity that took place,
describing his memories of the evening as “nightmares” in which the victim was
performing oral sex on him, which he said angered and offended him, but which he was
too intoxicated to stop.

The Government also introduced the testimony of other Airmen present at the
mini-mall, the restaurant, and the park that corroborated various aspects of the victim’s
recollection of events. The soldier who found the victim passed out after the assault

3 ACM 38466
testified that as he tried to wake her, the victim said, “Oh, this isn’t going to happen,”
and, “You’re not going to do it again.”

Additional facts necessary to resolve the assignments of error are included below.

Challenge for Cause

In his first assignment of error, the appellant argues that the military judge erred in
denying his challenge for cause against Capt BK under an implied bias theory. Implied
bias is “viewed through the eyes of the public, focusing on the appearance of fairness.”
United States v. Bagstad, 68 M.J. 460, 462 (C.A.A.F. 2010) (quoting United States v.
Clay, 64 M.J. 274, 276 (C.A.A.F. 2007)) (internal quotation marks omitted). Therefore,
appellate courts employ an objective standard when reviewing a military judge’s decision
regarding implied bias. United States v. Strand, 59 M.J. 455, 458 (C.A.A.F. 2004). We
review issues of implied bias under a standard less deferential than abuse of discretion
but more deferential than de novo. Id. (citing United States v. Miles, 58 M.J. 192, 195
(C.A.A.F. 2003)). In reviewing challenges for cause under the implied bias standard,
military judges are required to follow the “liberal grant” mandate which “supports the
UCMJ’s interest in ensuring that members of the military have their guilt or innocence
determined ‘by a jury composed of individuals with a fair and open mind.’”
United States v. James, 61 M.J. 132, 139 (C.A.A.F. 2005) (quoting United States v.
Smart, 21 M.J. 15, 18 (C.M.A. 1985)). “[I]n the absence of actual bias, where a military
judge considers a challenge based on implied bias, recognizes his duty to liberally grant
defense challenges, and places his reasoning on the record, instances in which the
military judge’s exercise of discretion will be reversed will indeed be rare.”
United States v. Clay, 64 M.J. 274, 277 (C.A.A.F. 2007).

The issue of Capt BK’s excusal arose not during the initial questioning of
members prior to presentation of evidence but rather toward the end of the victim’s direct
testimony. Capt BK, a dentist, remembered previously treating the victim, reviewing the
information she provided regarding her medical history relevant to seeking dental care,
and was aware that she had a pending medical retirement. 2 Capt BK stated that “there
wasn’t anything that we really conversed concerning the case or surrounding the case as
far as that goes.” Capt BK remembered that they briefly discussed skateboarding and
that the victim was quiet and shy.

2
The record indicates that during the course of treating the victim, Captain (Capt) BK determined the victim had
some dental problems that would require long term treatment. As part of the routine process of providing care to
Airmen in student status, Capt BK asked her if she would be at Sheppard Air Force Base long enough to complete
the treatment. The victim replied that she was being medically retired. Capt BK said that other than her brief
statement, he did not “remember anything particular to the situation.” Capt BK confirmed that he did not have any
knowledge as to the basis for the medical retirement.

4 ACM 38466
 Trial defense counsel argued that Capt BK should be excused because (1) he
recognized the victim as a former patient, (2) he remembered her because of her quiet
demeanor, (3) he had access to her medical records, and (4) he had knowledge of her
medical retirement and its relationship to potential sentencing evidence should there be a
conviction. The Government objected, arguing that Capt BK assured the military judge
he could remain impartial and that Capt BK’s recollection of the victim, and his
immediately bringing it to the military judge’s attention, fostered the appearance of
fairness rather than undercut it.

The military judge denied the challenge, stating:

I’ve gone back and reviewed my notes of Captain
[BK’s] initial voir dire, as well as considering everything that
he just brought to light. In light of that, I will deny the
challenge for cause against Captain [BK]. Having personally
observed his demeanor, I think trial counsel makes a good
point that he not only brought this to our attention at the first
opportunity, but also promised that if he were to have any
concerns as we go forward that he would bring those to our
attention.

I have no reason to doubt that he will do precisely that
if he feels like he’s had some memory jarred that would affect
his impartiality. So even considering the liberal grant
mandate and the implied bias standard, basically, I believe
Captain [BK] has comported himself as precisely the type of
individual possessed of just the type of judicial temperament
we would want of a member in a court-martial of the
seriousness of this; and so the request that he be excused is
denied.

The military judge considered the challenge based upon implied bias, recognized
his duty to grant liberally defense challenges, and placed his reasoning on the record. We
see no reason to believe that merely because Capt BK remembered providing unrelated
dental care to the victim and knew she had a pending medical retirement, he was either
actually biased or might appear so. Capt BK brought this matter forward on his own
accord, had minimal knowledge about the victim, and assured the military judge that
nothing about his brief interaction with the victim would cause him any concern about his
ability to decide this case impartially.

The appellant now argues that the military judge’s earlier granting of a challenge
for cause against a member with “a lesser justification” means the military judge’s denial
of the challenge against Capt BK must necessarily constitute an abuse of discretion.

5 ACM 38466
 The military judge made a clear distinction between the two members. In granting
the defense challenge for cause against Capt GW, the military judge stated he did not find
actual bias but under the liberal grant mandate he was granting the challenge for cause for
implied bias because Captain GW’s answers were inconclusive on whether he would
show a preference or “head start” to witnesses with whom he previously interacted.

The military judge clearly understood the distinction between actual bias and
implied bias, as well as his responsibility to grant challenges for cause liberally. Contrary
to the appellant’s assertion on appeal, the military judge’s ruling with respect to the
challenge against Capt GW makes us more confident, rather than less confident, that the
military judge properly analyzed the challenge against Capt BK. This is therefore not
one of the rare instances in which the military judge’s exercise of discretion will be
reversed. See Clay, 64 M.J. at 277.

Factual Sufficiency

The appellant next argues that the evidence is factually insufficient to sustain the
convictions for attempted forcible sodomy and rape. We review claims of factual
sufficiency de novo. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).
The test is “whether, after weighing the evidence in the record of trial and making
allowances for not having personally observed the witnesses,” we are convinced of
appellant’s guilt beyond a reasonable doubt. United States v. Turner, 25 M.J. 324, 325
(C.M.A. 1987). Review of the evidence is limited to the entire record, which includes
only the evidence admitted at trial and exposed to the crucible of cross-examination.
Article 66(c), UCMJ, 10 U.S.C. § 866(c); United States v. Bethea, 46 C.M.R. 223,
224–25 (C.M.A. 1973).

The elements of attempted forcible sodomy required that the Government prove
that at the time and place alleged, the appellant tried to place his penis in the victim’s
mouth, that he did so with the specific intent to commit forcible sodomy, that the act was
a substantial step toward the commission of the offense of forcible sodomy, and that the
act would have caused forcible sodomy to occur but for an unexpected intervening
circumstance.

The elements of rape required that the Government prove that at the time and
place alleged, the appellant caused the victim to engage in a sexual act (i.e., sexual
intercourse) and that he did so by using sufficient force against her that she could not
avoid or escape the sexual act.

As he did at trial, the appellant argues before us that any sexual activity that
occurred between the appellant and the victim was consensual. In support of his position,
the appellant calls our attention to the evidence of the victim’s intoxication—or lack

6 ACM 38466
thereof—during the evening, her history of having made prior false and/or inconsistent
statements, her possible motives to fabricate, her statements to and conduct with the
appellant, and other possible implausibilities or inconsistencies in the evidence.

We have reviewed the record of trial, paying particular attention to the evidence
and reasonable inferences that can be drawn therefrom, including the text messages
between the victim and the appellant on the night of the incident. We conclude, as did
the members, that the sexual conduct was not consensual and that the appellant did not
mistakenly believe that the victim consented. The victim maintained a consistent,
credible account of what occurred on the night in question. We see no reason to believe
the victim might have consented to the sexual conduct, and the appellant’s shifting
accounts during his law enforcement interview further solidify the prosecution’s case.
Having reviewed the entire record and making allowances for not personally observing
the witnesses, we ourselves are convinced of the appellant’s guilt beyond a reasonable
doubt.3

Unlawful Command Influence

The appellant next alleges that apparent UCI so permeated the Air Force at the
time of his trial that it was impossible for him to receive a fair trial or clemency
consideration. The appellant asked the military judge to dismiss all charges on this same
basis. The military judge denied the motion.

According to the appellant, it was impossible for him to receive a fair trial or
post-trial processing due to the cumulative effect of comments made by the President of
the United States, the Chief of Staff of the Air Force, the former and current Secretaries
of Defense, and other senior military leaders.

Article 37(a), UCMJ, 10 U.S.C. § 837(a), states in relevant part: “No person
subject to this chapter may attempt to coerce or . . . influence the action of a court-martial
or any other military tribunal or any member thereof, in reaching the findings or sentence
in any case . . . .” The mere appearance of unlawful command influence may be “as
devastating to the military justice system as the actual manipulation of any given trial.”
United States v. Ayers, 54 M.J. 85, 94–95 (C.A.A.F. 2000) (quoting United States v.
Allen, 33 M.J. 209, 212 (C.M.A. 1991)) (internal quotation marks omitted).

3
Although not raised by the appellant, we also consider the issue of legal sufficiency. “The test for legal sufficiency
of the evidence is whether, considering the evidence in the light most favorable to the prosecution, a reasonable
factfinder could have found all the essential elements beyond a reasonable doubt.” United States v. Humpherys,
57 M.J. 83, 94 (C.A.A.F. 2002) (quoting United States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987)) (internal
quotation marks omitted). “[I]n resolving questions of legal sufficiency, we are bound to draw every reasonable
inference from the evidence of record in favor of the prosecution.” United States v. Barner, 56 M.J. 131, 134
(C.A.A.F. 2001). For the reasons set forth in the opinion, we find the evidence is legally sufficient.

7 ACM 38466
 The burden of raising the issue of UCI rests with trial defense counsel.
United States v. Biagase, 50 M.J. 143, 150 (C.A.A.F. 1999). The defense must:
(1) “show facts which, if true, constitute unlawful command influence,” and (2) show
“the alleged unlawful command influence has a logical connection to the court-martial, in
terms of its potential to cause unfairness in the proceedings.” Id. To meet the threshold
for raising this issue, trial defense counsel is required to present “some evidence” of
unlawful command influence. Id. If the defense meets that burden to raise the issue, the
burden shifts to the Government, who must: “(1) disprove the predicate facts on which
the allegation of unlawful command influence is based; (2) persuade the military judge
that the facts do not constitute unlawful command influence; or (3) prove at trial that the
unlawful command influence will not affect the proceedings.” United States v. Simpson,
58 M.J. 368, 373 (C.A.A.F. 2003) (quoting Biagase, 50 M.J. at 151) (internal quotation
marks omitted). “Whichever tactic the Government chooses, the quantum of proof is
beyond a reasonable doubt.” Id. (quoting United States v. Stoneman, 57 M.J. 35, 41
(C.A.A.F. 2002)) (internal quotation marks omitted).

Where, as here, the issue is litigated on the record at trial, the military judge’s
findings of fact are reviewed under a clearly erroneous standard, but the question of UCI
flowing from those facts is a question of law that this court reviews de novo.
United States v. Villareal, 52 M.J. 27, 30 (C.A.A.F. 1999).

The appellant’s argument at trial was focused on various comments by officials
including the President of the United States, the Secretary of Defense, and other
Air Force senior leaders. Notably, none of the comments at issue were made by anyone
directly involved in the appellant’s court-martial. The military judge initially ruled that
the defense had failed to meet its burden to establish facts which, if true, amounted to
UCI. Instead, he treated the issue as one of pretrial publicity to be handled during the
voir dire process. The military judge further noted that he would apply the actual and
implied bias standards and the liberal grant mandate when ruling on challenges for cause.

At the conclusion of voir dire, the military judge revisited the issue of command
influence. He stated:

I do hereby find, beyond a reasonable doubt, that the panel as
currently composed, has shown absolutely no evidence that
they have been adversely impacted by the President’s or the
[Secretary of Defense]’s or any other entity’s statements or
any of the actions which took place with [two Air Force
general officers whose actions as convening authority in
sexual assault cases had been questioned]. Basically, beyond
any reasonable doubt, I find that the panel as currently
constituted shows no impact from any command influence in
this case, I so do find.

8 ACM 38466
 On appeal, the appellant does not challenge any of the military judge’s findings of
fact, including the finding beyond a reasonable doubt that there was no impact from any
of the statements made by the senior officials. Instead, the appellant invites us to
“consider all of the attachments to both the defense’s motion to dismiss . . . and his
clemency request,” the latter of which largely contained the same information and
argument as was in his motion to dismiss.

We have ourselves reviewed the entire record, including the comments made by
the senior officials and the members’ responses during the voir dire process. The military
judge’s findings of fact are amply supported by the record and are not clearly erroneous.
We need not reach the question of whether the defense met its initial burden of
production of evidence, as the military judge found beyond a reasonable doubt—and we
agree—that the statements at issue had no impact on the appellant’s trial. Additionally,
the military judge allowed broad voir dire on this subject and voiced a willingness to
liberally grant challenges to any member who might have been affected by any of the
statements at issue. An objective, disinterested, reasonable member of the public, fully
informed of all the facts and circumstances, would not harbor a significant doubt about
the fairness of the appellant’s court-martial proceeding. See United States v. Lewis,
63 M.J. 405, 415 (C.A.A.F. 2006).

Instructions

The appellant also assigned as error that the military judge erred in the findings
instructions he provided to the members.4 We review de novo the military judge’s
instructions to ensure that they correctly address the issues raised by the evidence.
United States v. Maynulet, 68 M.J. 374, 376 (C.A.A.F. 2010); United States v. Thomas,
11 M.J. 315, 317 (C.M.A. 1981). Where, as here, trial defense counsel made no request
for the instruction now at issue on appeal, the appellant has forfeited the objection in the
absence of plain error. See Rule for Courts-Martial 920(f).5 If we find error, we must
determine whether the error was harmless beyond a reasonable doubt. United States v.
Medina, 69 M.J. 462, 465 (C.A.A.F. 2011).

The appellant’s brief alleges that the military judge erred in his instruction on the
use of prior consistent statements. During deliberations, the members requested copies of

4
The appellant’s brief contains a significant scrivener’s error in which he titled the assignment of error that the
military judge failed to provide a definition for “wrongful” in Charge II. However, the charged offense of rape and
the lesser included offense of aggravated sexual assault do not include the term “wrongful” in the elements or
definitions. The military judge correctly did not include this term in his instructions on these offenses. The
appellant’s brief also does not present any argument on the issue of a definition of “wrongful.” We need not spend
any additional time, other than this brief footnote, on the assignment of error as captured in the title as that portion is
clearly without any merit. See United States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987).
5
Although we recognize that the rule speaks of “waiver,” the mere failure to object to instructions at trial normally
constitutes forfeiture. See United States v. Sousa, 72 M.J. 643, 651–52 (A.F. Ct. Crim. App. 2013).

9 ACM 38466
the victim’s statement to investigators as well as testimony she gave at the Article 32,
UCMJ, 10 U.S.C. § 832, pretrial investigation. The Government objected to the
members’ request. Trial defense counsel argued that the statements at issue should be
provided to the members, stating, “They contain, you know, evidence of potentially
inconsistent as well as consistent statements. And so we have no objection, Your
Honor.”

The military judge did as trial defense counsel asked and admitted the documents
at issue. He then added a legally correct instruction on the use of a prior consistent
statement to his previous instruction on the use of prior inconsistent statements. Despite
having received exactly what he requested at trial, the appellant now complains the judge
erred. Even assuming the appellant had not outright waived appellate review of this
issue, we find no plain error in the military judge’s actions.

Conclusion

The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c).6 Accordingly, the findings and the
sentence, are AFFIRMED.

FOR THE COURT

STEVEN LUCAS
Clerk of the Court

6
We order corrective procedural measures. The appellant’s brief includes the full name of the victim when quoting
the military judge’s ruling on the challenge of Capt BK. We order the appellant to produce a brief with the full
name redacted and replaced with only the initials. The corrected brief will otherwise be identical and will be the
only one placed in the record of trial. The appellant’s counsel shall provide a corrected brief within 14 calendar
days of this opinion. Additionally, the record of trial was not sealed for the closed sessions on the Mil. R. Evid. 412,
513, and 514 motions. Each of these rules clearly state that “[t]he motion, related papers, and the record of the
hearing” shall be sealed and shall remain under seal unless ordered otherwise by a trial or appellate military judge.
Mil. R. Evid. 412(c)(2), 513(e)(5), 514(e)(5) (emphasis added). No exception applies in this case, and we order
these portions to be sealed immediately. Counsel for both sides shall ensure that any copies of the record of trial are
corrected in accordance with the rules on sealed materials.

10 ACM 38466