United States v. Sergeant LUIS A. RODRIGUEZ JR.

UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before
ALDYKIEWICZ, MULLIGAN,! and SALUSSOLIA
Appellate Military Judges

UNITED STATES, Appellee
Vv.
Sergeant LUIS A. RODRIGUEZ JR.
United States Army, Appellant

ARMY 20180138

Headquarters, 7th Infantry Division
Timothy P. Hayes, Jr., Lanny J. Acosta, Jr., and Michael S. Devine, Military Judges
Colonel Russell N. Parson, Staff Judge Advocate

For Appellant: Captain James J. Berreth, JA; Nathan Freeburg, Esquire (on brief
and supplemental brief).

For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Wayne H.
Williams, JA; Major Virginia Tinsley, JA; Major Meghan Peters, JA (on brief).

1 October 2019

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
ALDYKIEWICZ, Senior Judge:

Appellant was charged with two specifications of violating Article 120,
Uniform Code of Military Justice, 10 U.S.C. § 920 [UCMJ]: Specification 1 alleged
rape; Specification 2 alleged abusive sexual contact. A panel of officers sitting as a
general court-martial acquitted appellant of rape but convicted him, contrary to his
plea, of abusive sexual contact. The convening authority approved the adjudged
sentence of a bad-conduct discharge, two years of confinement, and reduction to the
grade of E-1.

Appellant contends that the military judge erred in denying his Military Rule
of Evidence (Mil. R. Evid.) 513 motion for an in camera review of his accuser’s
mental health records or, in the alternative, failing to abate the proceedings if his

' Senior Judge Mulligan decided this case while on active duty.
RODRIGUEZ—ARMY 20180138

accuser did not agree to the production of her records. Appellant also asserts he
received ineffective assistance of counsel because his trial defense team failed to
challenge Lieutenant Colonel (LTC) CF, a member of his panel whose spouse was a
victim of a sexual offense. We disagree with both assertions, and while both
warrant discussion, neither merits relief.’

BACKGROUND

Between October 2016 and February 2017, appellant was a non-commissioned
officer working as a medic in the same unit as Corporal (CPL) AK.’ Eventually they
made plans to socialize off duty. On 17 February 2017, appellant drove to CPL
AK’s barracks, picked her up, and the two of them went to the on-post Shoppette to
purchase alcohol before returning to CPL AK’s barracks room. At CPL AK’s
barracks room, they drank and played games.

After a few hours, CPL AK laid down to go to sleep, telling appellant he
should go home because she was ready to go to sleep. Instead, appellant turned off
the light, climbed into bed with CPL AK, and placed his arm over her body and his
hand, over her clothing, on her crotch area. She pushed his hand away and told him,
“No, I did not want to tonight... . I?m going to sleep. Go home.” Ignoring her
express desire that he stop and go home, appellant grabbed her “genitals [over her
clothing] a lot more aggressively.”

2 Appellant also contends that the evidence is legally and factually insufficient to
sustain his abusive sexual contact conviction. We find no merit in this argument.
Similarly, we find those matters personally raised by appellant pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A 1982) to be without merit.

3 At the time of the charged offense, 17 February 2017, Corporal AK held the rank of
Specialist (SPC). Subsequent thereto she was laterally promoted to Corporal (CPL),
the rank she held when she testified in appellant’s court-martial. Throughout the
opinion, she will be referred to as CPL AK.
RODRIGUEZ—ARMY 20180138
THE PRETRIAL MIL. R. EVID. 513 LITIGATION‘

Prior to trial, defense counsel moved for the military judge to conduct an in
camera review of CPL AK’s mental health records. The defense argued that CPL
AK might suffer from a condition that impacted her “credibility” and “ability to
recount events accurately,” and that they were “constitutionally required” pursuant
to Mil. R. Evid. 513 and the Confrontation Clause of the Sixth Amendment.

In support of the defense motion, the defense submitted two screenshots of
CPL AK’s digital medical records and an affidavit from Dr. Keppler, an Army
psychiatrist appointed as a defense expert consultant. The defense also called Dr.
Keppler to testify at the motions hearing.

The screenshots were provided to the defense anonymously, left at the civilian
defense counsel’s office in a sealed envelope.° The defense provided copies of the
screenshots to the government. Screenshot 1 contains patient notes and references a
prescription medication, Rx-1. Screenshot 2 lists medical and mental health
diagnoses, labeled “problems.” Both reference a mental health disorder, Condition-
A. Corporal AK did not provide a Health Insurance Portability and Accountability
Act (HIPAA)* release for her medical records, including the screenshots. At the
time of trial, CPL AK continued to assert her Mil. R. Evid. 513 privilege.

4 Consistent with Mil. R. Evid. 513(e)(6), the “[pretrial] motions, related papers, and
the record of the hearing [were] sealed in accordance with R.C.M. 1103A.” Our
decision avoids unnecessary disclosure of CPL AK’s medical records out of concern
for her privacy, which was invaded through a HIPPA violation. This decision avoids
disclosure of any specific diagnosis made or medication prescribed not because they
are privileged, but because disclosure of either is unnecessary to resolution of the
Mil. R. Evid. 513 assignment of error.

> The envelope’s return address stated, in part: “JBLM Concerned Bystander.”

° HIPPA is a federal law that protects against the unauthorized disclosure or
transmission of all “individually identifiable health information” by a HIPAA
covered entity. The term “individually identifiable health information” means any
information, including demographic information collected from an individual, that—
(A) is created or received by a health care provider, health plan, employer, or health
care clearinghouse; and (B) relates to the past, present, or future physical or mental
health or condition of an individual, the provision of health care to an individual, or
the past, present, or future payment for the provision of health care to an individual,
and—(i) identifies the individual; or (ii) with respect to which there is a reasonable
basis to believe that the information can be used to identify the individual. 42 USC
§ 1320d(6) (2018).
RODRIGUEZ—ARMY 20180138

An investigation into the unauthorized release and HIPAA violation’ narrowed
the list of those who accessed CPL AK’s records during the relevant period, without
a medical need to know, to three persons, one of whom was appellant’s wife. On
four occasions, appellant’s wife, herself an active duty medic, without authorization,
accessed CPL AK’s medical records, including the digital records captured in
Screenshots 1 and 2.

During the motions session, the defense argued that an in camera review of
CPL AK’s mental health records was necessary to address Condition-B, a mental
health condition that can impact credibility and ability to recall. However, the
defense offered no evidence that CPL AK suffered from Condition-B, and it was not
mentioned in Screenshots 1 and 2. Although Screenshots 1 and 2 mentioned
Condition-A, Dr. Keppler testified that the references to Condition-A could indicate
either the presence or absence of the condition, so he could not conclude that CPL
AK suffered from Condition-A. Further, while those suffering from Condition-A
could also suffer from Condition-B, a diagnosis of the former was not evidence of
the latter. Although Screenshot 1 mentioned Rx-1, Dr. Keppler testified that the
medicine would not be prescribed to someone for Condition-A.

In denying the defense motion, the military judge ruled, “the use of
improperly, if not illegally, obtained evidence as a basis to establish a need to
disclose evidence under [Mil. R. Evid.] 513 [is] exactly contrary to [the] purpose of
the rule. The materials in the possession of the Defense retains [sic] its privileged
nature.” Having found Screenshots 1 and 2 privileged, the military judge denied the
defense’s Mil. R. Evid. 513 motion, concluding “[t]he Defense may not use the
improperly disclosed materials, regardless of who possesses them, for any purpose.”

The military judge went on, however, to rule in the alternative: even
considering the “privileged” materials, the defense failed to show “a specific factual
basis demonstrating a reasonable likelihood that the records or communications
would yield evidence admissible under an exception to the privilege.”® See Mil. R.

7 A knowing violation of HIPAA, which includes obtaining “individually identifiable
health information relating to an individual” or disclosing “individually identifiable
health information to another person” is subject to criminal prosecution, exposing
the offender to a fine of $50,000 to $250,000, imprisonment in the range of one to
ten years, or both. See 42 U.S.C. § 1320d-6 (2018).

8 The military judge also found the defense failed to meet the requirement of Mil. R.
Evid. 513(e)(3)(C)—that the information sought is “not cumulative from information

available from other sources.” Having found the military judge did not abuse his

(continued . . .)
RODRIGUEZ—ARMY 20180138

Evid. 513 (e)(3)(A). Therefore, the military judge ruled, “no disclosure or in camera
review is required.”

LAW AND DISCUSSION —- DENIAL OF AN IN CAMERA REVIEW

Appellant alleges the military judge erred by failing to conduct an in camera
review of CPL AK’s mental health records or, in the alternative, abate the
proceedings if CPL AK did not agree to the production of her mental health records.
We disagree. Contrary to the military judge’s conclusion, we find the records
proffered by the defense were not privileged. However, we affirm the military
judge’s denial of the defense motion for the reasons noted below.

A. What constitutes a “Confidential Communication” under Mil. R. Evid. 513?

We take this opportunity to clarify the meaning of “confidential
communication” pursuant to Mil. R. Evid. 513. As a threshold matter, the military
judge had to determine whether Screenshots 1 and 2 were privileged, as they were
the factual foundation offered by the defense counsel in support of their motion.

Mil. R. Evid. 513(a) provides:

A patient has a privilege to refuse to disclose and to prevent any other _
person from disclosing a confidential communication made between the
patient and a psychotherapist or an assistant to a psychotherapist, in a
case arising under the UCMJ, if such communication was made for the
purpose of facilitating diagnosis or treatment of the patient's mental or
emotional condition.

Whether a diagnosis or prescribed medication is privileged under Mil. R.
Evid. 513 is a question that has not yet been directly addressed by our superior
court. However, the Coast Guard addressed this question in H.V. v. Kitchen. 75
M.J. 717, 2016 CCA LEXIS 395 (C.G. Ct. Crim App. 2016) (2-1 decision) (Bruce,
R., dissenting).

We find Judge Bruce’s dissenting opinion in Kitchen most illustrative:

A diagnosis, prescribed medications, and other treatments
are matters of fact that exist independent of any

(. . . continued)

discretion in denying the defense motion as it fails Mil. R. Evid. 513(e)(3)(A), we
need not and do not address the validity of the military judge’s ruling as it relates to
Mil. R. Evid 513(e)(3)(C).
RODRIGUEZ—ARMY 20180138

communications between the patient and the
psychotherapist. .. . The facts that there was a diagnosis,
that medications were prescribed, or that other treatments
were given, exist regardless of whether or to what extent
they were discussed with the patient.” See HV. v.
Kitchen, 75 M.J. 717, 721, 2016 CCA LEXIS 395 (C.G.
Ct. Crim App. 2016) (2-1 decision) (Bruce, R.,
dissenting). A prescription, by its very nature, is intended
to be disclosed to a third party (i.e., the pharmacist who
fills the prescription).

Kitchen, 75 M.J. at 721. Adopting a plain language approach to the Mil. R. Evid.
513 privilege, Judge Bruce deftly highlighted “the rule protects ‘communication’
‘made for the purpose of facilitating diagnosis or treatment,’ not including diagnosis
and treatment.’” Jd. at 721. Had the President wished to broaden the category of
information that would be privileged under Mil. R. Evid. 513, he could have
included diagnosis and treatment in the plain language of the rule. As the words
“diagnosis” and “treatment” appear in the rule, we cannot conclude that the
President merely overlooked the issue of whether a diagnosis or treatment
constitutes a “confidential communication.” Instead, we concur with the lone
dissenting Judge Bruce that the Mil. R. Evid. 513 privilege extends to statements
and records that reveal the substance of conversations that may have been for the
“purpose of facilitating diagnosis or treatment,” but not to the diagnosis or treatment
itself.

Screenshots 1 and 2 contain a list of medical and mental health “problems,” or
diagnoses, and a list of prescription medications. A list of medical and mental
health “problems” does not contain any “confidential communications,” though
privileged communications may have prompted evaluation for those diagnoses.
Likewise, a list of prescription medications does not contain “confidential
communications,” though privileged communications may have facilitated a
psychotherapist’s prescription for a particular medication. A prescription, by its
very nature, is intended to be disclosed to a non-psychotherapist third party—the
pharmacist who fills it—which further informs our opinion that the medications
prescribed to a person are not privileged “confidential communications.”

The fact that Screenshots 1 and 2 were illegally obtained in violation of
HIPAA does not expand the psychotherapist-patient privilege created by the
President. HIPAA protects against disclosure of a much broader category of medical
information than the confidential communications that are privileged under Mil. R.
Evid. 513. The military judge was correct that privileged information could not be
used to establish the factual foundation for an in camera review of mental health
records. But his ruling conflates the Mil. R. Evid. 513 privilege with HIPAA
protection. While the medical records were no doubt protected under HIPAA and
RODRIGUEZ—ARMY 20180138

should not have been disclosed without CPL AK’s consent, we find Screenshots 1
and 2 were not privileged under Mil. R. Evid. 513, and the military judge erred in
his conclusion that they were. Because the records in question are not privileged,
we consider them, as the military judge did, in our Mil. R. Evid. 513 analysis.”

B. The Defense’s Burden to Establish Entitlement to an In Camera Review

A military judge’s ruling on a discovery or production request is reviewed for
an abuse of discretion. United States v. Stellato, 74 M.J. 473, 480 (C.A.A.F. 2015).
“A military judge abuses his discretion when his findings of fact are clearly
erroneous, when he is incorrect about the applicable law, or when he improperly
applies the law.” United States v. Roberts, 59 M.J. 323, 326 (C.A.A.F. 2004).

Congress codified four prerequisite showings that must be made before a
military judge may conduct an in camera review of privileged matters. As the
movant, appellant bore the burden of establishing:

(A) a specific factual basis demonstrating a reasonable likelihood that
the records or communications would yield evidence admissible under
an exception to the privilege;

(B) that the requested information meets one of the enumerated
exceptions under [Mil. R. Evid. 513(d)];

(C) that the information sought is not merely cumulative of other
information available; and

(D) that the party made reasonable efforts to obtain the same or
substantially similar information through non-privileged sources.

Mil. R. Evid. 513(e)(3).
We agree with the military judge that appellant failed to establish the first

prong of Mil. R. Evid. 513(e)(3)'° and therefore, he was not entitled to an in camera
review of CPL AK’s mental health records.

° If the military judge had been correct in his determination that Screenshots 1 and 2
were privileged, he should not have considered them in his determination of the
defense’s motion to conduct an in camera review of CPL AK’s mental health
records.

0 The military judge also found defense failed to meet the third prong of Mil. R.
Evid. 513(e)(3), a showing “that the information sought is not merely cumulative of
other information available.” Mil. R. Evid. 513(e)(3)(C). Having found the military

(continued . . .)
RODRIGUEZ—ARMY 20180138

The defense argued that CPL AK’s records were relevant to CPL AK’s
“credibility” and “ability to recount events accurately.” The defense tied this
assertion to a specified mental health diagnosis, Condition-B. However, the
evidence presented, to include the screenshots of CPL AK’s medical records,
mentioned a potential diagnosis of a different condition, Condition-A. While those
that suffer from Condition-A could also suffer from Condition-B, the former is not
proof of the latter, according to the defense’s own expert.

The defense also attempted to link CPL AK to Condition-B by reference to
Rx-1. However, the medication is not prescribed to treat either Condition-A or

Condition-B. In short, the defense was on a “proverbial fishing expedition.” United
States v. Chisum, 75 M.J. 943, 948 (A.F. Ct. Crim. App. 2016).

We find the military judge did not abuse his discretion in denying the defense
motion. The defense failed to establish “a specific factual basis demonstrating a
reasonable likelihood that the records or communications would yield evidence
admissible under an exception to the privilege.” Mil. R. Evid. 513(e)(3)(A). While
we have little doubt that defense counsel in criminal cases would like, as Dr.
Keppler put it, to “explore the underlying psychopathology at work in the
complainant,” Mil. R. Evid. 513 is a rule of privilege, not exploration.

C. Neither Brady nor the Confrontation Clause Entitles Appellant
to an In-Camera Review of CPL AK’s Mental Health Records

In addition to arguing the military judge erred in refusing to conduct an in-
camera review, appellant argues that the evidence in question was discoverable
under Brady.'! We disagree. “[F]or Brady purposes, information under the control
of the ‘prosecution’ is not the same as information under the control of the entire
government.” United States v. Shorts, 76 M.J. 523, 532 (Army Ct. Crim. App.
2017). Privileged information stored in a hospital’s system of records is not within
the possession or control of the “prosecution” for Brady purposes. “Mental health
records located in military or civilian healthcare facilities that have not been made
part of the investigation are not ‘in the possession of prosecution’ and therefore
cannot be ‘Brady evidence.’” Lk v. Acosta, 76 M.J. 611, 616 (Army Ct. Crim. App.
2017).

(. .. continued)

judge did not abuse his discretion in his Mil. R. Evid. 513(e)(3)(A) finding, we need
not and do not address the validity of the military judge’s ruling as it relates to Mil.
R. Evid 513(e)(3)(C).

'! See generally Brady v. Maryland, 373 U.S. 83 (1963) (requiring the government to
disclose to the defense certain information (i.e., evidence that is material and
favorable to the defense) in the possession of the prosecution).
RODRIGUEZ—ARMY 20180138
Finally, appellant argues:

[R]egardless of other evidentiary or relevance burdens, it was error for
the military judge to preclude the defense expert from considering the
records in forming his opinion. In fact, on its face the military judge’s
ruling precluded the defense from even conducting further investigation
based upon the records, denying the Appellant the effective assistance
of counsel. This ruling was simply outside of the military judge’s
authority and denied the Appellant his Sixth Amendment confrontation
right.

We disagree. The military judge issued a protective order to prevent
“unnecessary disclosure of evidence of a patient’s records or communications.”
Though the screenshots are not privileged, their unauthorized disclosure constitutes
a criminal violation of HIPAA. The military judge acted within his authority to
regulate discovery when he issued the protective order. See generally Rule for
Courts-Martial (R.C.M.) 701(g)(2). The order did not abridge appellant’s
constitutional rights. Appellant’s Sixth Amendment right to confront witnesses
against him is a trial right, not a discovery right. Pennsylvania v. Ritchie, 480 U.S.
39, 52 (1987). The right to confront witnesses does not include the right to discover
information to use in confrontation. /d.

Appellant has failed to establish that he was prejudiced by the military
judge’s order denying his use of the information for any purpose. We find no abuse
of discretion in the order and, more importantly, we find appellant suffered no
material prejudice to a substantial right as a result of said order. See Article 59(a),
UCMJ.

LIEUTENANT COLONEL CF’S SERVICE ON THE PANEL
A. Voir Dire

During group voir dire, the military judge posed the 28 standard group voir
dire questions, to include: “Has anyone or any member of your family or anyone
close to you personally ever been the victim of an offense similar to the ones
charged in this case?” See Department of the Army Pamphlet 27-9, Military Judges'
Benchbook, ¥ 2-5-1 (10 September 2014). All members except for LTC CF
responded in the negative. When asked by the military judge, “do you believe that
that experience would influence the performance of your duties as a court member in
this case in any way?”, LTC CF responded, “No, sir.” Following the military
judge’s questioning of the group, the trial counsel asked 18 additional questions.
Finally, trial defense counsel asked the group another 56 questions. The defense
counsel’s questions covered a range of topics including, inter alia: the members’
relationships with government counsel, the convening authority and each other;
RODRIGUEZ—ARMY 20180138

prior experience with and personal views on sexual assault; previous involvement
with victim advocates and law enforcement; preexisting notions regarding both
suspects’ and alleged victims’ behavior; and, prior experience sitting on a court-
martial panel.

During defense counsel’s group voir dire, five of the ten members, including
LTC CF, indicated they previously sat on a panel in a sexual assault case. During
individual voir dire, a sixth member explained that he also served as a panel member
on a sexual assault case. Considering the members’ responses during group voir dire
and the answers they provided in written questionnaires, trial defense counsel
requested and conducted individual voir dire of all ten members.

During individual voir dire of LTC CF, trial defense counsel asked LTC CF to
elaborate on his affirmative response to whether a family member or someone close
to him was a victim of an offense similar to those charged. The following colloquy
occurred:

Q. Sir, I believe you answered affirmatively whether there’d been a
family member or someone close to you that was a victim ofa
similar offense, is that correct?

A. That’s’ correct.

Q. I'm sorry to have to delve into this, but could you describe in
general what you’re speaking, sir.

A. It was my spouse. It was a number of years ago, but there were
multiple instances in which she was a victim of, I’ll say sexual
assault, however you want to characterize it, it still has significant
impacts today.

Q. Sir, the crime we’re talking about, did that take place many years
ago?

A. Yes. We’ve been married for 13 years, probably closer to 20 years
ago.

Did that offense come to light before you knew your wife?
A. No. It was afterwards.

Q. Were you involved in any way with investigative efforts or
anything like that?

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RODRIGUEZ—ARMY 20180138
A. No.

Q. Was there any law enforcement involved in it or anything of that
nature?

A. No.

Q. In the aftermath of an offense like that, I think you’ve alluded to
that there's impacts and things of that nature. Do you believe that
would color your ability to sit in a sexual offense case----

A. No.

Q. ----or prevent you--could you describe your thought process on
that, sir?

A. I’d make sure to be fair. At least, I believe, I’m fair and will look
at the evidence based on the merits. I don't come here with any
preconceived notions regarding the case one way or the other.

Q. The perpetrator of that offense against your wife, was that a family
member or a stranger?

A. It was an acquaintance of hers.

Counsel then transitioned to LTC CF’s experience as a member on a prior
sexual assault court-martial. He explained that he had sat on a court-martial panel in
a sexual assault case in January of that year. Lieutenant Colonel CF said nothing
from the experience stood out in his memory and he was committed to considering
the evidence in the case and following the law provided by the military judge.

The government challenged for cause two of the panel members. The defense
did not object and the military judge granted both challenges. The defense did not
assert any causal challenges. Both the government and defense exercised their
peremptory challenge, which the military judge granted. After the exercise of
challenges, the panel consisted of six members, three of whom had previously served
as members in sexual assault cases.

B. Lieutenant Colonel CF’s Questions at Trial
During the course of trial, LTC CF submitted six questions that were marked
as appellate exhibits. He directed questions at two NCO supervisors of CPL AK, an

expert witness testifying in the field of forensic biology, and a medical doctor
testifying about sexual assault forensic examinations. Most notably, during

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RODRIGUEZ—ARMY 20180138

deliberation, the panel president requested that the court be called to order so that
the military judge could be presented with LTC CF’s final question: “May we have
a transcript of CPL [AK’s] testimony.” As the typed transcript of the testimony was
not yet available, LTC CF’s question prompted the military judge to replay part of
CPL AK’s recorded testimony. After the members heard the portion of the recorded
testimony requested, they returned to their deliberations.

LAW AND DISCUSSION — THE DEFENSE’S DECISION NOT TO
CHALLENGE LIEUTENANT COLONEL CF

Appellant asserts he was denied his Sixth Amendment right to effective
assistance of counsel because his defense counsel failed to challenge for cause LTC
CF, a member whose wife had been a victim of a sexual offense. Appellant
characterizes defense counsel’s “failure to challenge LTC F [as] an unreasonable
omission [ ] especially since the challenge would have been granted under the
‘liberal grant mandate,’” noting that that “a challenge for cause based on implied
bias would have been successful.” We disagree and conclude for the reasons below
that appellant is entitled to no relief.

First, absent plain error, appellant’s decision at trial not to challenge LTC CF
as a member of the court waives any issue regarding his participation on the court.
Further, appellant has failed to meet his burden to establish he was denied effective
assistance of counsel, establishing neither deficiency by defense counsel’s decision
not to challenge LTC CF for cause nor prejudice by LTC CF’s membership on the
court.

A. The Burden to Bring Challenges and Waiver

“The purpose of voir dire and challenges is, in part, to ferret out facts, to
make conclusions about the members’ sincerity, and to adjudicate the members’
ability to sit as part of a fair and impartial panel.” United States v. Bragg, 66 M.J.
325, 327 (C.A.A.F. 2008).

Rule for Courts-Martial 912(f)(3) states, in part: “The party making a
challenge shall state the grounds for it... . The burden of establishing that grounds
for a challenge exists is upon the party making the challenge.” United States v.
Napoleon, 46 M.J. 279, 283 (1997). Rule for Courts-Martial 912(f)(2)(4) states, in
part: “[m]embership of enlisted members in the same unit as the accused and any
other ground for challenge is waived if the party knew of or could have discovered
by the exercise of diligence the ground for challenge and failed to raise it in a timely
manner.” See also United States v. Lopez, 37 M.J. 702, 705 (Army Ct. Crim. App.
1993).

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Absent a clear showing of specific prejudice, “or where application of waiver
would result in a miscarriage of justice,” failure to challenge a member at trial
constitutes waiver of that issue on appeal. United States v. Wilson, 21 M.J. 193, 197
(C.M.A. 1986). “Allowing appellate defense counsel to label a decision not to
challenge court members as ‘ineffective assistance of counsel,’ would .. . defeat the
longstanding waiver rule for challenges... .” United States v. Travels, 47 M.J. 596,
598 (A.F. Ct. Crim. App. 1997).

We agree with the Air Force court and “find that when, as here, detailed voir
dire is conducted by the defense counsel, counsel’s subsequent failure to challenge a
member is a tactical decision which waives any ground for challenge revealed by
voir dire.” Travels, 47 M.J. at 598. Appellant cannot strategically decline to assert
a challenge during voir dire and then complain of the inaction on appeal in order to
revive an issue he previously waived. Appellant’s allegation is a poor attempt at
appellate “CPR,” but new life cannot be breathed into legal issues previously waived
by calling his counsel ineffective.

Notwithstanding our finding of waiver, we will review counsel’s “inaction”
under the framework for ineffective assistance of counsel, a review that similarly
results in no relief for appellant.

B. Ineffective Assistance of Counsel

In order to prevail on a claim of ineffective assistance of counsel, appellant
must demonstrate both (1) that his counsel’s performance was deficient, and (2) that
this deficiency resulted in prejudice. United States v. Green, 68 M.J. 360, 361
(C.A.A.F. 2010) (citing Strickland v. Washington, 466 U.S. 668, 687(1984)). We
review both deficiency and prejudice de novo. United States v. Datavs, 71 M.J. 420,
424 (C.A.A.F. 2012) (citing United States v. Gutierrez, 66 M.J. 329, 330-31
(C.A.A.F. 2008)). Appellant’s claim fails on both counts.

To establish deficient performance, appellant must show that his counsel’s
“representation amounted to incompetence under ‘prevailing professional norms.’”
Harrington v. Richter, 562 U.S. 86, 105 (2011) (quoting Strickland, 466 U.S. at
690). In order to establish prejudice, appellant must demonstrate “that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Green, 68 M.J. at 362 (citing
Strickland, 466 U.S. at 698).

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1. No Deficiency

Any analysis of appellant’s ineffective assistance of counsel claim necessarily
requires an assessment of whether appellant had a viable challenge for cause against
LTC CF. Defense counsel’s performance cannot be called “deficient” for declining
to make a challenge that would not have been successful.

““A military judge's ruling on a challenge for cause is reviewed for an abuse
of discretion.’” United States v. Woods, 74 M.J. 238, 243 (C.A.A.F. 2015) (citations
omitted). “The bias of a prospective juror may be actual or implied; that is, it may
be bias in fact or bias conclusively presumed as matter of law.” United States v.
Wood, 299 U.S. 123, 133 (1936).

“Actual bias [is defined] as ‘bias in fact’—the existence of a state of mind
that leads to an inference that the person will not act with entire impartiality.”
United States v. Ai, 49 M.J. 1, 5 (1998) (internal quotations omitted). “The test for
actual bias [in each case] is whether any bias ‘is such that it will not yield to the
evidence presented and the judge's instructions.’” United States v. Napoleon, 46
M.J. 279, 283 (1997) (internal quotations omitted). “There is implied bias when
most people in the same position would be prejudiced.” United States v. Warden, 51
M.J. 78, 81 (C.A.A.F. 1999) (internal quotations omitted). Implied bias is
“evaluated objectively under the totality of the circumstances and through the eyes
of the public, reviewing the perception or appearance of fairness of the military
justice system.” United States v. Dockery, 76 M.J. 91, 96 (C.A.A.F. 2017) (citations
and quotations omitted).

Appellant argues that implied bias exists when a family member is the victim
of a similar crime. Our superior court disagrees, as do we. It is well established
that “[a] prior connection to a crime similar to the one being tried before the court-
martial is not per se disqualifying to a member’s service.” United States v. Terry,
64 M.J. 295, 297 (C.A.A.F. 2007); see also United States v. Daulton, 45 M.J. 212,
217 (C.A.A.F. 1996) (a member is not per se disqualified because [the member] or a
close relative has been a victim of a similar crime.).

In Terry, the Court of Appeals for the Armed Forces (C.A.A.F.) concluded it
was error for the military judge to deny a challenge for cause against a member
whose “experience with rape was pronounced and distinct.” 64 M.J. at 297. The
member’s longtime girlfriend whom he intended to marry had been raped, a rape that
resulted in her pregnancy. Jd. The member’s longtime girlfriend broke off their
relationship because she “felt unworthy” of being with him after the rape. Jd. at
300. Despite being a support system for the rape victim, the rape ultimately led to
the end of the relationship, changing the course of the member’s life. Lieutenant
Colonel CF’s experience with his wife’s sexual assault is distinguishable.

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Lieutenant Colonel CF appeared to know few details of his wife’s 20-year-old
sexual assault. The crime occurred before he married his wife and it did not derail
their lives together, as the rape did to the challenged member in Terry. Mere
knowledge of his wife’s experience as a sexual assault victim and an
acknowledgement that it continues to impact her, albeit significantly, does not
amount to a “pronounced and distinct” personal experience with a crime similar to
those charged.

To agree with appellant’s allegation that he received ineffective assistance of
counsel, this court would have to find that defense counsel are per se ineffective
when they choose not to challenge a member that reports a personal experience with
a crime similar to those charged. Such a holding would fly in the face of the
longstanding premise that a prior connection to a crime similar to the one being tried
before the court-martial is not per se disqualifying to a member’s service on a panel.
See Terry, 64 M.J. at 297. Imposing such a rule would also trample on the necessary
strategic autonomy exercised by defense counsel in the presentation of an accused’s
defense. Our superior court recognized that military judges are “specially suited” to
determine challenges because, unlike a reviewing court that is not physically
present, military judges have observed a challenged member’s demeanor during voir
dire. /d. at 302. Similarly, we find a trial defense counsel is best poised to
determine whether to challenge panel members, as she observes each member,
converses directly with them during individual voir dire, and reads their pretrial
questionnaires, which are not part of the appellate record.

During individual voir dire, LTC CF’s colloquy with the defense counsel
provides insight into his fairmindedness and impartiality. Rather than simply giving
affirmative or negative responses to defense counsel’s queries, LTC CF delivered an
unsolicited monologue about his intent to fairly decide the case on its merits.
Lieutenant Colonel CF noted, “I’d make sure to be fair. At least, I believe, I’m fair
and will look at the evidence based on the merits. I don’t come here with any
preconceived notions regarding the case one way or the other.” There were no
leading questions posed to suggest to LTC CF that he should dutifully set aside his
wife’s personal experience in order to sit as an unbiased member; he freely
articulated his intent to do so in his own words.

Appellant has failed to support his allegation against his defense counsel. He
could have provided an affidavit explaining that he noticed something off-putting
about LTC CF’s demeanor and expressions in court. He could have explained that
he was uncomfortable having LTC CF on his panel and had in fact expressed that
concern to his defense team. The absence of any affidavit ftom appellant’s speaks
volumes. Because he did not, we must assume that he did not personally notice
anything noteworthy about LTC CF during voir dire that would have caused him to
request that the member be challenged. Likewise, if there were disturbing answers
contained in LTC CF’s pretrial questionnaire, appellant did not move to attach it to

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the appellate record to support his bold assertion that a challenge against LTC CF
would have been successful and should have been made by his counsel.

We do not find that appellant’s counsel were deficient in their decision not to
challenge LTC CF because appellant has failed to demonstrate a challenge for cause
against LTC CF would have been successful.

2. No Prejudice

We need not address prejudice, as we find no deficiency in defense counsel’s
performance. However, we turn to the second prong of the Strickland analysis to
point out that appellant has failed to even allege any prejudice, let alone support
such a claim. Instead, appellant presumes prejudice, as if the failure to challenge a
member automatically creates a reasonable probability of a different result sufficient
to create serious doubt as to the outcome of the trial. Appellant would like us to
treat his ineffective assistance of counsel allegation as structural error, one that
“affects the framework within which the trial proceeds,” such that it “defies analysis
by harmless error standards.” Weaver v. Massachusetts, 137 S. Ct. 1899, 1907-08
(2017) (citations omitted). But assuming we agreed with appellant that his counsel
was deficient for failing to challenge LTC CF, appellant still bears the burden of
showing how that prejudiced him at trial. The findings reached by the panel and
LTC CF’s behavior during trial make us confident that the defense counsel’s
decision not to challenge LTC CF did not prejudice appellant.

First, the panel acquitted appellant of rape, the gravamen offense. Even if
LTC CF harbored some bias due to his wife’s status as a victim of sexual assault,
appellant’s acquittal cuts against the contention that the failure to challenge LTC CF
prejudiced appellant. Second, we have considered that LTC CF posed six thoughtful
questions during the course of trial that were directed at a variety of witnesses. His
questions demonstrate a focused attention to the evidence presented at trial and a
personal desire to understand the testimony of the witnesses, including expert
witnesses. Even during deliberation, LTC CF asked to reexamine CPL AK’s
testimony, which supports the conclusion that he was a thoughtful deliberator, not a
biased husband. Despite his wife’s personal experience with sexual assault, LTC CF
did not exhibit a biased attitude or inelastic disposition.

Appellant’s lead defense counsel conducted a thorough group voir dire and
individual voir dire with every member. She gained insight from personal
conversations with each member. Viewing the record as a whole, we conclude that
appellant’s defense team conducted a strategically savy voir dire and simply made a
tactical decision not to challenge LTC CF for cause after hearing his answers and
observing his affect and behavior. Notwithstanding our conclusion that appellant
waived the issue of challenging LTC CF, defense counsel’s decision not to challenge
LTC CF did not constitute ineffective assistance of counsel.

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CONCLUSION

Upon consideration of the entire record, the findings of guilty and the
sentence are AFFIRMED.

Senior Judge MULLIGAN and Judge SALUSSOLIA concur.

FOR THE COURT:

Cloke

MALCOLM H. SQUIRES, JR.
Clerk of Court

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