United States v. Specialist ROBERT S. AVERY

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
MULLIGAN, FEBBO, and WOLFE
Appellate Military Judges

UNITED STATES, Appellee
v.
Specialist ROBERT S. AVERY
United States Army, Appellant

ARMY 20140202

Headquarters, 8th Army
Timothy P. Hayes, Jr. and Craig S. Denney, Military Judges
Colonel Marian Amrein, Staff Judge Advocate (Pre-trial)
Colonel Craig A. Meredith, Staff Judge Advocate (Post-trial)

For Appellant: Lieutenant Colonel Jonathan F. Potter, JA; Major Christopher D.
Coleman, JA; Captain Cody Cheek, JA (on brief); Colonel Mary J. Bradley, JA;
Major Christopher D. Coleman, JA; Captain Cody Cheek, JA (on reply brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Melissa Dasgupta Smith, JA; Captain Christopher A. Clausen, JA (on
brief).

30 November 2017

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

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

MULLIGAN, Senior Judge:

In this case, we address three assignments of error raised by appellant. 1 First,
we explore whether the military judge erred in failing to grant defense counsel’s
challenge for cause of several members based upon an inelastic attitude towards
sentencing. Second, we discuss whether the military judge properly instructed the
members concerning the mens rea for the offense of indecent language. Finally, we
consider whether the government’s dilatory post-trial processing in this case
warrants relief. In the end, we affirm the findings but set aside the sentence.

1
Appellant’s fourth assignment of error was rendered moot. After due
consideration, we find the matters personally raised by appellant pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), lack merit.
AVERY—ARMY 20140202

An enlisted panel sitting as a general court-martial convicted appellant,
contrary to his pleas, of one specification of sexual assault of a child and one
specification of communicating indecent language to a child under the age of
sixteen, in violation of Articles 120b and 134, Uniform Code of Military Justice
[UCMJ], 10 U.S.C. §§ 920b and 934 (2012). The court sentenced appellant to a bad-
conduct discharge and reduction to the grade of E-1. The convening authority
approved the sentence as adjudged.

BACKGROUND

Appellant, at all times relevant to the charges in this case, was a twenty-three-
year-old married soldier with three children serving an accompanied tour in
Yongsan, Korea. On various occasions, appellant enlisted the services of HK, the
twelve-year-old stepdaughter of Sergeant (SGT) GH, to babysit his children.
Appellant and HK eventually developed a mutual infatuation for each other.

The relationship progressed to the point appellant and HK frequently
exchanged Facebook messages and met up clandestinely to engage in “make out”
sessions that included kissing. The Facebook messages included one session
wherein appellant and HK engaged in a name-calling duel. During this session,
appellant called the twelve year-old girl a “cum guzzling gutter slut,” which is the
basis for the indecent language charge.

At some point, HK’s stepfather discovered the Facebook exchanges between
appellant and HK, which, in turn, led to the charges for which appellant was tried
and convicted.

Additional facts pertinent to the resolution of this case are set forth below.

LAW AND DISCUSSION

A. Challenges for Cause

Appellant argues that the military judge abused his discretion in denying
defense counsel’s challenge for cause of four members who had expressed an
inelastic predisposition towards sentencing. As a remedy, appellant asks this court
to set aside his sentence.

During group voir dire, after the panel read the charges and specifications, the
military judge asked the panel of ten members whether they “would be compelled to
vote for a particular punishment, if the accused [was] found guilty, solely because of
the nature of the charges?” The members answered in the negative. Later, the
military judge ascertained that all of the members were aware of comments by the
President regarding the need for vigorous prosecution of sexual assault, and of
comments by senior civilian and military leaders on the issues of sexual assault.
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Again, the members indicated they did not feel compelled to vote for a particular
sentence based upon any of the comments they had heard and could remain impartial
in hearing appellant’s case.

Later, again during group voir dire, all ten members answered in the
affirmative when asked by defense counsel “[d]o you believe that anyone convicted
of a sexually-based offense must be discharged from the military?” The military
judge immediately intervened and engaged in the following colloquy with the panel:

MJ: [. . .] Members, that last question that was asked to
you about, does anyone believe that if you're convicted of
a sexually-based offense, must be discharged, you
understand in this case that as you as panel members must
individually decide what punishment, if any, including no
punishment, is appropriate, if the accused is convicted of
any offense.

Do you understand that?

[The members indicated an affirmative response.]

MJ: Affirmative response. Understand that you are not
required by law to impose any type of punishment, such as
a discharge, if the accused is found guilty of any offense.

Do you understand that?

[The members indicated an affirmative response.]

MJ: Do you agree that you will follow that instruction?

[The members indicated an affirmative response.]

MJ: [. . . ] And do all of the members agree that if, in fact,
the accused is found guilty of one or more offenses,
including sexual assault, that you will not have a
predisposed sentencing determination that he must be
discharged from the service?

[The members indicated an affirmative response.]

Following group voir dire, the members were individually recalled to answer
additional questions from the military judge and counsel. Upon recalling each
member, the military judge started with an instruction that the member had to keep
an open mind if called to sentence appellant for any offense and to consider the full
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range of punishments. Each member indicated they understood and would follow the
military judge’s instructions.

Defense counsel had the following exchange with Master Sergeant (MSG) DR
during individual voir dire:

Q. Now, you also stated that should someone be convicted
of a sexually-based offense they should be discharged;
what did you mean by that?

A. Sir, if you are convicted, I feel that you should be
discharged. If you are convicted for sexual assault or
sexually-based offenses, you should be discharged from
the military.

Q. Regardless of the level of offense from a grab all the
way up to penetration, rape?

A. I think there is difference -- my understanding is
assault, I'm thinking physical, you know, penetration type
versus may be a ground may not be grounds for discharge.

Q. And in reviewing the flyer in this case, should
Specialist Avery be convicted of those offenses do you
believe that he would have to be discharged?

A. Yes, sir.

After the military judge, yet again, explained that MSG DR had to follow his
instructions to consider all possible punishments and that no particular punishment
was required regardless of the findings. Master Sergeant DR indicated that he
understood and could follow the instruction.

Defense counsel had the following exchange with Captain (CPT) FD during
individual voir dire:

Q. Now, the judge also spoke about the comments by the
[P]resident and senior military leaders, you are aware of
the President's philosophy that if you are convicted of a
sexually-based offense then you must be discharged?

A. Yes.

Q. Do you subscribe to that philosophy as well?

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A. Yes, but for the purpose of the courtroom -- I'll just
follow the instructions.

Q. So, outside the courtroom you believe that but inside
you have a different opinion?

A. Yes.

Q. How do you separate those two?

A. Well, here I have to be fair and impartial, so to be
honest I have not seen the President make that comment, I
just only heard it on the news, but I've seen higher leaders
and -- and Secretary of Defense making those comments
about sexual assault.

Q. And do you believe that that is, in fact, you did answer
in the affirmative, correct that -- so, having seen the
charge sheet in this case, should Specialist Avery be
convicted of any of those offenses, do you believe that he
must be discharged?

A. Yes because it's -- it's not -- it's not in line with the
Army Values.

Upon further questioning by the military judge, CPT FD stated that he would
consider this case on its individual facts and consider the full range of potential
punishments.

Defense counsel had the following exchange with MSG RS during individual
voir dire:

Q. Now, you are aware of the President's statement that if
you are convicted with a sexual assault, you must be
discharged, correct?

A. Yes, sir.

Q. Now, do you subscribe to that philosophy that the
President has set forth?

A. I do believe, if convicted, it should be considered, yes.

Q. Should be considered. Now, in this case -- having seen
the flyer, if Specialist Avery is convicted of any of those
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offenses, do you believe that he must be discharged?

A. If he is convicted of sexual assault against a minor,
yes, sir. I do believe so.

Q. So, you believe he must be discharge [sic]?

A. He should be, yes.

Upon further questioning by the military judge, MSG RS stated that he
understood that he had to consider this case on its individual facts, would consider
the full range of potential punishments, and could keep an open mind.

When questioning Sergeant First Class (SFC) JM, defense counsel asked
whether SFC JM thought the accused should be separated if convicted of any of the
offenses. Sergeant First Class JM answered in the affirmative.

Q. Now, you stated that you have heard the comments of
the [P]resident that, if you are convicted of a sexual
assault, you must be separated from the military?

A. Must be?

Q. Roger. Now, you did answer in the affirmative, though,
that if someone is convicted, you believe that they must be
separated, correct?

A. No, sir. Not must be, can be, if they're convicted, not if
there're accused.

Q. What if they're convicted? Must -- should they be
separated?

A. I believe so, yes, sir.

Q. Can you expand on that; why do you believe that?

A. Clearly if they're convicted, beyond reasonable doubt,
that's not what the Army -- Values are in place for. Their
mindset is in a different spot, not in the military.

Q. And having looked at the flyer in this case, if Specialist
Avery were convicted of any of those offenses, do you
believe that he must be separated?

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A. Convicted, yes, sir.

As with the other members, the military judge then questioned SFC JM about
whether he understood that he had to consider this case on its individual facts and
consider the full range of potential punishments. Again, SFC JM responded that he
understood and would follow the military judge’s instructions.

Following voir dire, defense counsel challenged several members, to include,
CPT FD, MSG RS, MSG DR, and SFC JM for cause. In ruling on the first of the
challenges, the military judge described his framework for assessing the challenges,
and stated on the record the proper tests for actual and implied bias, as well as the
liberal grant mandate.

As to each of the four members at issue in this case, defense counsel
articulated as a basis for challenge, among other reasons, the responses during voir
dire that a person convicted of sexual assault should be discharged. In denying the
challenges based upon actual and implied bias, the military judge determined that
each member, based upon that member’s responses, did not have an inelastic
disposition as to sentence and could follow the court’s instructions as to sentencing.
All four of these members, along with four other members who survived challenges,
heard appellant’s case.

An “accused is entitled to have his case heard by members who are not
predisposed or committed to a particular punishment, or who do not possess an
inelastic attitude toward the punitive outcome.” United States v. Martinez, 67 M.J.
59, 61 (C.A.A.F. 2008) (citations omitted). Rule for Courts-Martial [R.C.M.]
912(f)(1)(N) requires a panel member be excused when it is “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)
(quoting United States v. Clay, 64 M.J. 274, 276 (C.A.A.F. 2007)). When assessing
challenges for cause, a military judge must apply the “liberal grant mandate” and
“err on the side of granting a challenge.” United States v. Peters, 74 M.J. 31, 34
(C.A.A.F. 2015) (citation omitted). That is, “in close cases military judges are
enjoined to liberally grant challenges for cause.” Id. (quoting Clay, 64 M.J. at 277).

The issue before us is whether the military judge’s rehabilitative efforts
overcame the perception that the panel was free from the influence of an inelastic
predisposition to impose a punitive discharge. That is, did the military judge abuse
his discretion in denying appellant’s challenge of these four members on the basis of
implied bias?

Implied bias is an “objective test” based on “the consideration of the public’s
perception in having a particular member as part of the court-martial panel.” Peters,
74 M.J. at 34 (citations omitted). In applying this objective test, we determine
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“‘whether the risk that the public will perceive that the accused received something
less than a court of fair, impartial members is too high.’” United States v. Bagstad,
68 M.J. 460, 462 (C.A.A.F. 2010) (quoting United States v. Townsend, 65 M.J. 460,
463 (C.A.A.F. 2008)).

“This [c]ourt's standard of review on a challenge for cause premised on
implied bias is less deferential than abuse of discretion, but more deferential than de
novo review.” Bagstad, 68 M.J. at 462 (citations omitted) (internal quotation marks
omitted). Under this standard, “[w]e do not expect record dissertations but, rather, a
clear signal that the military judge applied the right law.” United States v. Downing,
56 M.J. 419, 422 (C.A.A.F. 2002). “In short, we review an implied bias challenge
for cause on a sliding scale of deference that depends on how thoroughly the
military judge placed his findings on the record.” United States v. Mayo, 2017 CCA
LEXIS 239, *9 (Army Ct. Crim. App. 16 Jun. 2017). However, “[i]ncantation of the
legal test without analysis is rarely sufficient in a close case.” Peters, 74 M.J. at 34.

Appellant cites to Martinez as an instance where our superior court found a
military judge’s rehabilitative attempts were insufficient to overcome an implied
bias created by a member’s inelastic attitude towards sentencing. 67 M.J. at 60-61.
There, a panel member in a drug case indicated he could not consider no punishment
as an option on sentencing. In response, the military judge, as here, obtained
assurances from the member that he could consider the evidence and the possibility
of a sentence of no punishment. The Court of Appeals for the Armed Forces
(CAAF) found these rehabilitative measures fell short. Id. at 61. The Court noted
the member in question provided qualified, if not hesitant answers despite repeated
opportunities to disavow an inelastic attitude towards punishment. Id. More
importantly, the military judge, in denying the challenge for cause, did not indicate
if he had considered the issue of implied bias. Id.

Factually, we can distinguish Martinez from the present case in two respects.
First, the member in Martinez demonstrated a far more inelastic attitude towards
sentencing than each of the members in this case. Here, the members did not
provide hesitant or qualified answers to the military judge; rather, each member,
after indicating they believed that a soldier should be discharged if convicted of
sexual assault, clearly conveyed their understanding of and willingness to follow the
military judge’s instructions to keep an open mind and consider the full range of
punishments if the appellant was convicted. Second, the military judge here
explicitly said he considered the issue of implied bias in denying the challenges for
cause. On an individual basis, each member, in our view, sufficiently demonstrated
he did not have an inelastic attitude towards a discharge once informed of the proper
standards under which to adjudicate a sentence.

If only one of these members had answered defense counsel’s question in the
affirmative, we would find the military judge’s rehabilitative efforts sufficient to
sustain the denial of the challenge for cause under an implied bias standard.
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However, we do not view each member’s response in this case, or the military
judge’s denial of the challenge for cause as to each member, in a vacuum; we look to
the totality of the circumstances. “In reaching a determination of whether there is
implied bias, namely, a ‘perception or appearance of fairness of the military justice
system,’ the totality of the circumstances should be considered.” Peters, 74 M.J. at
34 (quoting United States v. Dale, 42 M.J. 384, 386 (C.A.A.F. 1995)). When four
members repeat their belief that a conviction for sexual assault should result in a
discharge, even after being instructed twice to keep an open mind, the perception
created is that of a panel—or at least half of the panel ultimately seated—with an
unwavering attitude that a discharge, despite the judge’s instructions, was a foregone
conclusion if appellant was convicted. The military judge did not adequately
address the cumulative impact on the perceived fairness of appellant’s panel by
having all four of these members sit. For that reason, we find the military judge
abused his discretion in denying appellant’s challenges for cause. 2

The issue of members with an apparent inelastic attitude towards a sentence,
however, does not warrant us to set aside the findings in this case. Nothing in the
record indicates any of these members had an actual or implied bias that called into
their question their ability to fairly and impartially hear the case on findings.
Accordingly, we grant appellant’s request on this issue and set aside the sentence.

B. Indecent Language and Mens Rea

Prior to closing argument, the military judge discussed instructions with
counsel for both sides and, subsequently, provided counsel the written instructions
for their review. Both the government and defense counsel indicated on the record,
that they had no objections to the instructions. Later, the military judge provided
the following instruction concerning indecent language to the members:

“Indecent language” offense, in The Specification
of Charge II the accused is charged with one specification
of the offense of indecent language, a violation of Article
134 of the Uniform Code of Military Justice. To find the
accused guilty of this offense, you must be convinced by
legal and competent evidence beyond a reasonable doubt
of the following elements:

First, that between on or about 1 September 2012, and
on or about 28 February 2013, at or near Hannam Village,
Republic of Korea, the accused in writing communicated
with Ms. [HK] a child under the age of 16 years certain
language to wit: “cum guzzling gutter slut”;

2
As a result, we need not address the issue of actual bias.
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Second, that language was indecent; and

Third, that under the circumstances the conduct of
the accused was of a nature to bring discredit upon the
armed forces.

“Words communicated to” means that the language
is actually made known to the person to whom it was
directed.

“Indecent language” that which is grossly offensive
to the community sense of modesty, decency, or propriety,
or shocks the moral sense of the community because of its
vulgar, filthy, or disgusting nature. Language is also
indecent if it is grossly offensive to the community sense
of modesty, decency, and propriety, or shocks the moral
sense of the community because of its tendency to incite
lustful thought. Language is therefore indecent if it tends
to reasonably corrupt morals or incite lustful thought
either expressly or by implication from the circumstances
under which it is spoken. Seemingly chaste or innocuous
language can constitute this offense if the context in
which it was said--in which it was used sends an indecent
message as reasonably interpreted by commonly accepted
community standards.

The phrase “service discrediting conduct” is
conduct which tends to harm the reputation of the service
or lower it in public esteem.

This instruction substantially mirrored the Military Judges’ Benchbook and was
consistent with the definition of “indecent” contained in the Manual for Courts-
Martial. See Dep’t of Army, Pam. 27-9, Legal Services: Military Judges’ Benchbook
[Benchbook] para. 3-89-1 (1 Jan. 2010); Manual for Courts-Martial, United States
(2012 ed.) [MCM], pt. IV, ¶ 89.c.

Defense counsel did not object to this instruction or ask the military judge to
instruct the members on the level of mens rea applicable to this offense.

Appellant now asserts the Supreme Court’s decision in Elonis v. United
States, 135 S. Ct. 2001 (2015), 3 and the subsequent decisions by the CAAF in United
States v. Gifford, 75 M.J. 140, 146 (C.A.A.F. 2016) (general order violation under

3
Appellant’s trial concluded prior to the Supreme Court’s decision in Elonis.
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Article 92, UCMJ, requires recklessness as mens rea), and United States v. Rapert,
75 M.J. 164, 169 (C.A.A.F. 2016) (Elonis inapplicable because the element of
wrongfulness is the mens rea required to establish communication of a threat under
Article 134, UCMJ) require that we set aside appellant’s conviction for
communicating indecent language. Specifically, appellant argues that the
instructions provided by the military judge were inadequate because they included a
negligence standard for the mens rea required to commit the offense. We disagree
that these cases compel us to set aside appellant’s conviction for indecent language.

What mens rea applies to the offense of indecent language under Article 134,
UCMJ, is a question of law which we review de novo. See United States v.
Serianne, 69 M.J. 8, 10 (C.A.A.F. 2010). We likewise review de novo the legal
correctness of the instructions given by the military judge. United States v. Payne,
73 M.J. 19, 22 (C.A.A.F. 2014) (citations omitted). Rule for Courts-Martial 920(f)
provides that the “[f]ailure to object to an instruction or to omission of an
instruction before the members close to deliberate constitutes waiver of the
objection in the absence of plain error.” “Where there is no objection to an
instruction at trial, we review for plain error.” Payne, 73 M.J. at 22-23 (citing U.S.
v. Tunstall, 72 M.J. 191, 193 (C.A.A.F. 2013)). “Under a plain error analysis, the
accused ‘has the burden of demonstrating that: (1) there was error; (2) the error was
plain or obvious; and (3) the error materially prejudiced a substantial right of the
accused.’” Tunstall, 72 M.J. at 193-94 (quoting United States v. Girouard, 70 M.J.
5, 11 (C.A.A.F. 2011)).

1. Elonis

In Elonis, the Supreme Court applied existing precedent in overturning an
accused’s conviction for communicating a threat through interstate commerce under
18 U.S.C. § 875(c) (“Interstate communications”). 135 S. Ct. at 2012. This statute
required the communication be transferred and the communication contained a
threat, but was silent as to the mens rea required to commit the offense. Id. at 2008.
At trial, the judge instructed the panel that a statement constitutes a threat if
intentionally communicated by the accused “in a context or under such
circumstances wherein a reasonable person would foresee” the statement would be
interpreted as a serious expression of intent to cause injury or death. Id. at 2007. In
finding the instruction inadequate, the Court equated this “reasonable person” test
with a “negligence standard.”

The Supreme Court reiterated several longstanding principles of statutory
construction, the first of which is that “[a]lthough there are exceptions, the ‘general
rule’ is that a guilty mind is ‘a necessary element in the indictment and proof of
every crime.’” Id. at 2009 (quoting United States v. Balint, 258 U.S. 250, 251
(1922)). Second, that a “presumption in favor of a scienter requirement should
apply to each of the statutory elements that criminalize otherwise innocent conduct.”
Id. at 2011 (quoting Unites States v. X-Citement Video, Inc., 513 U.S. 64, 72
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(1994)). And finally, “[w]hen interpreting federal criminal statutes that are silent on
the required mental state, [courts] read into the statute only that mens rea which is
necessary to separate wrongful conduct from otherwise innocent conduct.” Id. at
2010 (citations and internal quotation marks omitted).

As this court has stated another way, “when a statute is silent on the scienter
needed to commit the offense and a scienter requirement is needed to separate
wrongful from innocent conduct, the mens rea required to commit the offense must
be greater than simple negligence.” United States v. Chance, 2016 CCA LEXIS 241,
*4 (Army Ct. Crim. App. 18 Apr. 2016), affd 75 M.J. 370 (C.A.A.F. 2016).
“[A]bsent confusion whether an offense criminalizes innocent conduct, there is no
reason to read into the offense an elevated mens rea requirement.” Id. at *8.
.

2. Indecent Language and Mens Rea

As specified by the President, the offense of indecent language, in the context
of this case, requires proof of four elements: 4

(1) That the accused orally or in writing communicated to another
person certain language;

(2) That the person to whom the language was communicated was a
child under the age of 16;

(3) That such language was indecent; and

(4) That, under the circumstances the, the conduct of the accused was
of a nature to bring discredit on the armed forces.

See MCM, pt. IV, ¶ 89.b. The President, in promulgating this provision, provided
the following explanation of the language proscribed:

4
“In analyzing offenses charged under the general article, Article 134, UCMJ, we
look at both the statute and the President's explanation in [the] MCM . . . to
determine the elements of the offense.” United States v. Zachary, 63 M.J. 438, 441
(C.A.A.F. 2006). The President does not define offenses under Article 134 by
listing elements and providing explanations, but rather “indicat[es] various
circumstances in which the elements of Article 134, UCMJ, could be met.” United
States v. Jones, 68 M.J. 465, 471 (C.A.A.F. 2010). “Although MCM explanations of
offenses are not binding on this Court, they are generally treated as persuasive
authority, [ ]to be evaluated in light of this Court’s precedent.” United States v.
Miller, 67 M.J. 87, 89 (C.A.A.F. 2008) (citations omitted).
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“Indecent” language is that which is grossly offensive to
modesty, decency, or propriety, or shocks the moral sense,
because of its vulgar, filthy, or disgusting nature, or its
tendency to incite lustful thought. Language is indecent if
it tends reasonably to corrupt morals or incite libidinous
thoughts. The language must violate community
standards.

Appellant argues “these instructions constitute an insufficient negligence test
over an element criminalizing otherwise innocent conduct” in a manner Elonis
prohibits. That is, the military judge’s instructions, which derived from the
President’s explanation of this offense, “included a negligence standard associated
with the key element of whether the language was indecent.” If appellant is correct
that the President’s explanation conveys a negligence standard, then the offense of
“indecent language” lies outside of the reach of Elonis. Prior decisions of our
superior court would bear this out. As appellant notes, our superior court has
“previously interpreted communicating indecent language to not require proof of the
defendant’s intent.” See United States v. French, 31 M.J. 57, 60 (C.A.A.F. 1990)
(“For the act of communicating indecent language, however, there is no additional
requirement that it be done with the intent to gratify the ‘sexual desires of the
accused.’ All that is necessary is that the specification allege that the accused
communicated an indecent message.”); United States v. Negron, 58 M.J. 834, 844
(C.A.A.F. 2003) (Although indecent language is not a “specific intent crime, it is
sufficient that the language used ‘tends reasonably to corrupt morals or incite
libidinous thoughts.’”). In other words, negligence, as a general proposition, is not
an impermissible mens rea under Article 134 if that is the requisite scienter
prescribed in the President’s explanation of the kind of act violative of the general
article. Indecent language, for example, prescribes negligent conduct just as
negligent homicide proscribes the killing of another by simple negligence. See
MCM, pt. IV, para. 85.

Notwithstanding the previous analysis, we would find Elonis inapplicable for
other reasons. The very definition of indecent language itself poses a very high bar
in order to sustain a conviction. First, the word “indecent” in the context of the
offense of indecent language has long been seen as synonymous with “obscene.” See
French, 31 M.J. at 59. As such, language that meets the definition of “indecent” is
not afforded protection under the First Amendment. United States v. Moore, 38 M.J.
490, 492 (C.M.A. 1994) (citations omitted). Second, encompassed within the words
“indecent language” under Article 134 are “two alternative definitions, either of
which may be relied upon under the offense: (1) grossly offensive to modesty,
decency, or propriety, or shocks the moral sense, because of its vulgar, filthy, or
disgusting nature; or (2) grossly offensive because of its tendency to incite lustful
thought.” United States v. Green, 68 M.J. 266, 269 (C.A.A.F. 2010) (citing Negron,
60 M.J. at 144). Either definition requires language far removed from an innocent
utterance. “Grossly” itself is a word suggestive of language with an extreme
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meaning or purpose. At its root, the word “gross” is synonymous with “glaring,”
“flagrant,” or “monstrous.” 5 Language with a tendency to incite lustful thought is
generally uttered for that very purpose. 6 Essentially, “indecent” sufficiently conveys
something more than innocent words. Put differently, innocent language cannot be
indecent when judged against the high bar required to prove the offense of indecent
language. If indecent language by definition cannot be innocent, Elonis does not
require an elevated mens rea.

While we do not here divine a specific mens rea attributable to the offense of
indecent language beyond the standard in the President’s definition of the offense,
we do find that the offense as set forth in the UCMJ and as instructed by the military
judge sufficiently separates wrongful from innocent conduct. We do not find this
inconsistent with Rapert, where our superior court found the word “wrongful” in the
context of communicating a threat under Article 134 sufficiently separated wrongful
conduct from innocent conduct. 75 M.J. 169. Here, we find the word “indecent,” in
the context of the elements of the offense of indecent language, sufficiently
separates innocent language from that which is wrongful. Accordingly, we find the
military judge’s instruction was not in error.

C. Dilatory Post-Trial Processing

Appellant complains that the delay between the conclusion of trial and the
convening authority’s action was unreasonable and warrants relief. See generally
United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006); United States v. Tardif, 57
M.J. 219 (C.A.A.F. 2002). The convening authority took action in appellant’s case
422 days after the sentence was adjudged, 402 of which are attributable to the
government. The record in this case consists of five volumes, and the trial transcript
is 585 pages. Appellant through his defense counsel made four separate requests for

5
“gross, adj. and n.4,” Oxford University Press,
http://www.oed.com/view/Entry/81765?rskey=ZaaXWJ&result=4 (last accessed 23
Oct. 2017).
6
In French, The CAAF adopted the test for determining the sufficiency of a charge
of indecent language as whether the language used was “calculated to corrupt morals
or excite libidinous thoughts.” 31 M.J. at 60 (quoting United States v. Linyear, 3
M.J. 1027, 1030 (N.M.C.M.R. 1977) (emphasis added). “‘Calculated’ is generally
understood to mean ‘intended’ or ‘planned’ to bring about a certain result.” United
States v. Brinson, 49 M.J. 360, 364 (C.A.A.F. 1998) (citation omitted). Nonetheless,
the definition of “indecent language” was amended in 1995 to substitute the
language “tends reasonably” for the term “calculated” to avoid any misinterpretation
that “indecent language” is a specific intent offense. See Drafter’s Analysis, at A23-
24 (2012 ed.).

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speedy post-trial processing. 7 In the addendum to the staff judge advocate’s (SJA)
recommendation, the SJA disagreed that the delay was excessive and concluded that
the delay did not constitute legal error warranting corrective action. However,
nothing in the record explains the government’s delay in the post-trial processing of
appellant’s case.

We apply the four-factor test in Barker v. Wingo, 407 U.S. 514 (1972), to
determine whether the post-trial delay in this case results in a due process violation.
United States v. Moreno, 63 M.J. at 135. These factors are: (1) length of the delay;
(2) reasons for the delay; (3) assertion of the right to a timely review and appeal;
and (4) prejudice. Id. (citing Barker, 407 U.S. at 530). Applying these factors, we
find no due process violation in the post-trial processing of appellant’s case.

Normally, upon finding no due process violation, we would still review the
appropriateness of the sentence in light of an unjustified dilatory post-trial
processing. UCMJ art. 66(c); Tardif, 57 M.J. at 224 (“[Pursuant to Article 66(c),
UCMJ, service courts are] required to determine what findings and sentence ‘should
be approved,’ based on all the facts and circumstances reflected in the record,
including the unexplained and unreasonable post-trial delay.”); see generally United
States v. Toohey, 63 M.J. 353, 362-63 (C.A.A.F. 2006); United States v. Ney, 68
M.J. 613, 617 (Army Ct. Crim. App. 2010); United States v. Collazo, 53 M.J. 721,
727 (Army Ct. Crim. App. 2000). Had we not otherwise set aside the sentence, we
would have found the sentence, as approved by the convening authority to be
appropriate. We therefore grant no relief or limitations on the sentence that may be
adjudged at a sentence rehearing. Of course, the limitations set forth in R.C.M. 810
will apply to any sentence adjudged at a rehearing.

CONCLUSION

The findings of guilty are AFFIRMED; the sentence is SET ASIDE. A
rehearing on the sentence may be ordered by the same or a different convening
authority.

Judge FEBBO concurs.

7
Appellant requested speedy post-trial processing on 2 September 2014, 6 October
2014, 3 February 2015 and 2 March 2015. The convening authority took action on
15 May 2015.

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WOLFE, Judge, dissenting in part:

I respectfully dissent. 1

For each panel member who gave a troubling response during voir dire, the
military judge instructed the member that they were required to follow the judge’s
instructions to consider all possible punishments and that no particular punishment
was required regardless of the findings. The panel member then satisfied the
military judge that they could follow the judge’s instructions.

Certainly, the record quoted by the majority adequately supports that the
military judge would have been well within his discretion in granting each challenge
for cause. However, given the discretion accorded a military judge, at least when
presented as a question of law, I would affirm.

“Some offenses are so heinous or so repugnant to common decency that the
first thought of a court member might well be that the accused should, if convicted,
be sentenced to a punitive discharge.” United States v. Davenport, 17 M.J. 242, 244
(C.A.A.F. 1984). Indeed, the court described such an impression as “unavoidable.”
Id. (quoting United States v. Fort, 16 U.S.C.M.A. 86, 89-90, 36 C.M.R. 242, 245-46
(1966)).

In United States v. Davenport the following exchange took place between a
panel member (Lieutenant Colonel Hagler) and the civilian defense counsel (Mr.
Cohen) during voir dire:

IDC: And there are some of us, who because of our
educational, emotional, personal backgrounds, feel so
strongly about a particular type of offense, that regardless
of what we lawyers call extenuation and mitigation, the
background of the accused, circumstances surrounding the
offense, the personal feelings are so strong that in all
1
I briefly note two statutory changes which, due to the date of the offenses, do not
alter the disposition of this case. First, the Military Justice Act of 2016 amended the
definition of “sexual act” for violations of Article 120 and 120b. See Act of Dec.
23, 2016 Pub. L. 114-328, § 5430(a), (b), 130 Stat. 2949 (limiting “sexual act” to
penetrations and contacts of the mouth involving a penis, vulva, anus, or scrotum).
Had appellant’s kiss of HK happened after the effective date of the Act, although it
may have violated other statutes, it would not constitute a sexual assault. Second,
after appellant committed his offense, amendments to Article 56, UCMJ, made
dishonorable discharges a mandatory punishment for sexual assaults under Article
120b. Thus, depending on when the offense was committed, appellant’s acts would
constitute the offense of sexual assault of a child, sexual assault of a child
punishable by a mandatory dishonorable discharge, or not a sexual assault at all.

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honesty the jury member would feel compelled personally
to vote for expulsion from the Service -- could not
conceive of honestly and fairly considering to permitting
such a service member to remain in the Service.

MEMBER (LTC Hagler): Why don't you ask me this, Mr.
Cohen. Would I want the accused, if proven guilty, to
serve in my battalion or the United States Army ever in
any capacity for me -- my answer is definitely not.

IDC: You answered the question, Sir.

MEMBER (LTC Hagler): Okay. Fine.

17 M.J. at 243.

I read the exchange in Davenport to be far worse than any of the exchanges in
this case. Indeed, the Davenport panel member comes across as actively hostile.
Nonetheless, after some brief rehabilitative questions by the trial counsel and the
military judge, our superior court held that the military judge did not abuse his
discretion in denying the challenge for cause. The Davenport court cited favorably
their decision in United States v. Tippit, 9 M.J. 106, 108 (CMA 1966), that “[u]nless
it is apparent to us from the record of the voir dire that a court member has a closed
mind about a case he is to try, denial by the military judge of a challenge for cause
should not be reversed.”

Here, appellant was charged with sexual assault of child. This is an offense
that is of a nature that, as the CAAF stated, “if the accused were convicted, most
thinking persons would, in the absence of some extenuating circumstances, conclude
that separation from the service was appropriate.” Davenport, 17 M.J. at 244.

It is this perspective that, in my view, separates this case from Martinez and
the other cases cited by appellant. In Martinez the panel member expressed a fixed
view about the punishment for someone convicted of a single specification of drug
use. The difference between a single drug use charge (Martinez) and multiple
specifications of child sexual assault (this case) or murder (Davenport) are
differences in kind, not degree. While most “thinking persons” might be
predisposed to conclude that a punitive discharge is appropriate in cases of murder
or child sexual assault, they might reach a different conclusion when an accused has
pleaded guilty to using marijuana on a single occasion.

Thus, reading the record in light of Davenport, I am not as troubled with the
panel’s member’s responses to leading “artful” questioning. It is neither surprising
nor disqualifying that a panel member’s initial response to a question that assumes
the accused has been convicted of several sexual assaults of a child would reveal a

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predisposition to impose a punitive discharge. The question is whether the initial
predisposition will yield to the instructions of the military judge or whether the
panel member’s mind is closed.

The military judge was well positioned to review each panel member’s
responses during voir dire. We must remember that “resolving claims of implied
bias involves questions of fact and demeanor, not just law.” United States v. Woods,
74 M.J. 238, 243 n.1 (C.A.A.F. 2015) (emphasis added). Questions of “implied bias
[are] reviewed under an objective standard, viewed through the eyes of the public.”
United States v. Wiesen, 56 M.J. 172, 174 (C.A.A.F. 2001) (citations omitted).
However, it is a member of the public who is sitting in the gallery, observing the
panel member’s demeanor, and has the same information as the military judge. See
United States v. Hines, 75 M.J. 734, 740 n.5 (Army Ct. Crim. App. 2016). This is
why military judges are accorded discretion when ruling on questions of implied
bias. (Though, as the majority correctly notes, it is a “sliding scale” of discretion
depending on how thoroughly the military judge places his or her findings on the
record).

Having reviewed the record, I conclude that the military judge was within his
discretion in denying each challenge for cause. The military judge put sufficient
facts on the record to warrant some discretion in denying the defense challenges.

Interestingly, the majority does not necessarily disagree with this conclusion.
As to each individual challenge for cause the majority appears to agree that the
“military judge’s rehabilitative efforts [were] sufficient to sustain the denial of the
challenge for cause under an implied bias standard.” It is the collective effect of
several close calls which troubles the majority.

When addressing the “totality of the circumstances” of an implied bias
challenge the majority opinion considers not only the circumstances surrounding the
panel member, but also the circumstances surrounding the other panel members.
Thus, the majority finds that while no individual panel member is unfit to serve, the
“cumulative impact on the perceived fairness of appellant’s panel by having all four
of these members sit” warrants reversal. Maj. Op. at *9.

Although a reasonable read of our superior court’s case law, I do not believe
this is a required standard, and I am concerned that is unworkable from the
perspective of the military judge. 2 It is also contrary to how I interpret R.C.M.

2
Assume, for example, that the military judge finds that while no individual member
should be removed for cause, but that collectively (under the totality of the

(continued . . .)

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912(f)(3) which places the “burden of establishing that grounds for a challenge exist
is upon the party making the challenge.”

Thus, I find no error of law which requires this court to set aside the sentence
in this case. 3

FOR
FOR THE
THE COURT:
COURT:

JOHN P. TAITT
Deputy
JOHN Clerk of Court
P. TAITT

(. . . continued)
circumstances) the members constitute an unfair panel. Must counsel make a
separate objection to the panel as a whole? Which panel member should the military
judge remove? How many panel members should the military judge remove?
3
Whether the sentence “should be approved” under Article 66(c) is a closer call.
The question presented is a close enough call that–when combined with the hints of
unlawful command influence lurking behind the voir dire–this case may be a good
candidate for the exercise of our Article 66(c) authority. Decided as a matter of law,
however, I cannot join a majority opinion that applies an implied bias test to the
panel as a whole rather than to each discrete challenge for cause.
19