Before
MONAHAN, STEPHENS, and DEERWESTER
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Adam M. PYRON
Master-at-Arms Second Class, (E-5), U.S. Navy
Appellant
No. 201900296
Argued: 5 April 2021—Decided: 29 April 2021
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge:
Stephen C. Reyes
Sentence adjudged 19 July 2019 by a general court-martial convened
at U.S. Naval Fleet Activities Yokosuka, Japan consisting of officer
members. Sentence approved by the convening authority: 39 years’
confinement, reduction to E-1, and a dishonorable discharge. 1
For Appellant:
Emmanuel V. Tipon, Esq. (argued)
Lieutenant Megan Horst, USN (on brief)
Major Thomas R. Fricton, USMC (on brief)
1 The convening authority deferred and waived all forfeitures of pay and allow-
ance by operation of law for six months from the date of convening authority’s action.
For Appellee:
Lieutenant John L. Flynn, JAGC, USN (argued)
Lieutenant Gabriel K. Bradley, JAGC, USN (on brief)
Lieutenant Joshua C. Fiveson, JAGC, USN (on brief)
Major Clayton L. Wiggins, USMC (on brief)
_________________________
PUBLISHED OPINION OF THE COURT
_________________________
Judge DEERWESTER delivered the opinion of the Court, in which
Chief Judge MONAHAN and Senior Judge STEPHENS join.
_________________________
DEERWESTER, Judge:
Appellant was convicted, contrary to his pleas, of two specifications of at-
tempted rape of a child, one specification of rape of a child, and four specifica-
tions of sexual abuse of a child, in violation of Articles 80 and 120b, Uniform
Code of Military Justice [UCMJ]. 2
Appellant asserts four assignments of error [AOEs]: (1) the military judge
erred in denying a Defense challenge for cause on grounds of implied bias;
(2) the military judge erred in denying the Defense request for a mistrial for
sentencing because the curative instruction provided was insufficient to
remedy the prejudicial effect of expert testimony from a Government witness
that was later sua sponte struck by the military judge; (3) a Rule for Courts-
Martial [R.C.M.] 810(f)(1) fact-finding hearing was warranted to ascertain
the facts surrounding an allegation that a court-martial member “high-fived”
members of the Region Legal Service Office 3 immediately after the conclusion
of the trial; (4) the military judge erred in not awarding day-for-day credit
pursuant to R.C.M. 305(k) because the initial review officer violated the
requirements of R.C.M. 305(i)(2)(D) by failing to annotate whether the
victims’ Article 6b, UCMJ, rights were protected.
2 10 U.S.C. §§ 880, 920b.
3 The command of the Prosecution team.
2
We find prejudicial legal error with regard to Appellant’s first AOE. Spe-
cifically, we find that the military judge erred in denying the Defense chal-
lenge for cause of Lieutenant [LT] Alpha 4 under the implied bias standard
and the liberal grant mandate. Due to our resolution of this AOE, we find the
other AOEs moot, and we take action in our decretal paragraph.
I. BACKGROUND
A. Appellant is Reported to the Naval Criminal Investigative Service
and Prosecuted at a General Court-Martial
In 2019, Appellant, a Navy petty officer stationed in Yokosuka, Japan,
spent the day watching the Super Bowl at a family friend’s house. His friend,
a Navy civilian employee, lived in off-base housing with his wife, two sons,
16-year-old step-daughter, and two daughters: an 8-year-old and a 6-year old.
That evening, after the parents had retired for the night to their bedroom,
Appellant brought both the 8- and 6-year-old girls downstairs, and while
there, exposed his penis to both of them and rubbed his penis on the 8-year-
old’s leg. After the 8-year-old ran back upstairs to bed, Appellant placed his
penis into the mouth of the 6-year-old and asked her to remove her pull-up
diaper so that he could cause contact between her vulva and his mouth. After
the 6-year-old returned to her bedroom, he followed her there to ask her to
place her mouth on his penis again. When she refused, Appellant went back
downstairs for the evening.
The following morning, while getting dressed for the day, both girls told
their mother what happened. She reported this to military law enforcement.
After Appellant made substantial admissions to the charged conduct tanta-
mount to a confession and DNA analysis was performed, charges were re-
ferred to a general court-martial for the offenses for which he now stands
convicted.
B. Voir Dire
During voir dire, trial defense counsel [TDC], concentrated questioning on
multiple members who had children similar in age to the victims in this case,
questioning each one about their views of the case based on their relationship
with their children.
4 All names in this opinion, other than those of Appellant, the judges, and coun-
sel, are pseudonyms.
3
1. Voir dire of Commander Bravo
During individual voir dire, Commander [CDR] Bravo, who had a daugh-
ter who was sexually assaulted when she was 11-years-old, was asked by the
military judge if he felt he could “set [the sex assault of his daughter] aside
and approach [Appellant’s case] based on the evidence.” CDR Bravo respond-
ed, “I believe I can set it aside.” 5 Trial counsel then got even more to the
point, asking CDR Bravo if he could “honestly leave [the sex assault of his
daughter] outside the courtroom and approach this with fresh eyes and base
it on the law and the evidence as the facts develop in this case and the judge
instructs you?” 6 Again, CDR Bravo said that he could. TDC then asked if
CDR Bravo thought about his girls when he read the charge sheet, and
CDR Bravo admitted he did.
2. Voir dire of Commander Sierra
CDR Sierra was the next member to undergo individual voir dire, during
which he had a colloquy with the military judge about a close family member
(his wife), who was sexually assaulted when she was a child roughly the same
age as the victims. The military judge asked CDR Sierra if he thought these
facts and circumstances would raise a substantial question about his partici-
pation in Appellant’s trial, and CDR Sierra said he did not think it would.
TDC then asked if he “heard testimony of a child or two coming in who are
under the age of 12, [would that] bring back memories of what your wife had
told you and what she had gone through?” 7 CDR Sierra stated he “[could]n’t
say absolutely it would not, but [he] didn’t think so.” 8 Not satisfied with that
answer, trial counsel then asked CDR Sierra if he felt “confident that when
you’re evaluating this case, you can leave all that outside the courtroom and
you will look at this based only on the evidence and the witnesses and the law
the judge gives you?” CDR Sierra replied, “I believe so.” 9 Again pressing to
potentially rehabilitate the witness, the trial counsel asked “Do you feel
5 R. at 333.
6 Id. at 333-34.
7 Id. at 339.
8 Id.
9 Id.
4
confident that you can do that?” CDR Sierra replied, “Not necessarily.” 10 No
further questions were asked of CDR Sierra.
3. Voir dire of Lieutenant Alpha
LT Alpha was also brought back for individual voir dire. Initially, the mil-
itary judge had a brief colloquy with him regarding his ability to maintain
focus on the trial if seated due to his current billet. LT Alpha answered that
he could. The military judge then turned questioning over to TDC, who asked
LT Alpha whether he thought of his daughters, ages 8 and 11, when he read
the charges on the charge sheet. LT Alpha answered yes, and when TDC
asked LT Alpha “[i]n what capacity” he thought of his daughters, LT Alpha
responded “Not in a good way, personally.” 11 TDC then asked his final ques-
tion, “Do you think as you hear the evidence you’re gonna think about your
girls maybe when you see the witnesses come in and testify.” 12 LT Alpha
responded “It would be hard not to.” 13 TDC had no further questions for
LT Alpha. There were no questions from either the trial counsel or the
military judge.
4. Challenges for cause
Among the Defense challenges for cause were CDR Bravo, CDR Sierra,
and LT Alpha, each of whom were challenged for implied bias. When discuss-
ing CDR Bravo and CDR Sierra, the military judge’s resolution of the chal-
lenges turned on whether they stated they could leave their thoughts and
feelings of their loved ones outside the courtroom when considering Appel-
lant’s case. Both TDC and trial counsel agreed that CDR Sierra was not clear
he could leave them outside the courtroom, and CDR Bravo was hesitant on
whether he could do the same, though perhaps to a lesser degree. The mili-
tary judge determined that for CDR Bravo and CDR Sierra, due to the close
relationship they had with a family member who had experienced sexual
assault or abuse as a child, similar to the allegations in this case, they should
each be excused.
LT Alpha was also challenged because he had a daughter the same age as
one of the victims, and he had responded that he would think of his daugh-
10 Id. at 340-41.
11 Id. at 357.
12 Id.
13 Id.
5
ters, in a bad, personal way while listening to evidence in the case. TDC cited
the liberal grant mandate in his argument.
In response to TDC’s argument, trial counsel first stated that “many of
our members have kids. If we’re gonna strike all of them that have kids,
we’re not gonna have a panel.” 14 The military judge then focused trial counsel
on the statement that it would be hard not to think of his kids when hearing
evidence. Trial counsel replied:
I think, again, it’s hard for anybody not to think of the chil-
dren in their lives when it comes to these charges. Specifically
with respect to [LT Alpha], he was also very clear that he can
leave that outside; that it won’t color the way that he looks at
this case. That he’ll evaluate it based on the—the facts and
the—the facts and the circumstances at issue. . . . If you look at
the totality of his responses to the answers, he was very clear
that he can leave it outside. He was very matter of fact. He is a
professional. And so I think unlike [CDR Bravo and
CDR Sierra] [LT Alpha] is a much clearer, impartial member.
No one outside the courtroom is gonna look in and say that he
got—that the Accused got an unfair trial based on his presence
on the panel. 15
After hearing argument from TDC and trial counsel, the military judge
denied the challenge of LT Alpha under the implied-bias standard finding:
Now with respect to his thoughts about his children, in the
given—the Court agrees with the Government’s interpretation
of the answers given by [LT Alpha]; that given the totality of
how the answers were provided by [LT Alpha] that an outside
observer would not believe that there was going to be an unfair
trial. And so, even in light of the liberal grant mandate, even in
light of the standard, defense counsel’s challenge for
[LT Alpha] is denied. 16
14 Id. at 402.
15 Id. at 402-03.
16 Id. at 403.
6
II. DISCUSSION
A. Did the Military Judge Abuse His Discretion in Denying Appel-
lant’s Challenge of Lieutenant Alpha for Implied Bias?
1. Standard of review and the law
While we generally give a “military judge’s ruling on a challenge for cause
. . . great deference,” 17 we review rulings on challenges for implied bias “under
a standard less deferential than abuse of discretion but more deferential than
de novo.” 18 This standard recognizes that implied bias deals with the public’s
objective perception of the fairness of the military justice system, and not
simply the military judge’s assessment of whether a challenged member can
serve in a fair and impartial manner. 19 “[W]e evaluate implied bias objective-
ly, ‘through the eyes of the public,’ reviewing ‘the perception or appearance of
fairness of the military justice system.’ ” 20 We will give greater deference
where a military judge puts on the record his analysis and basis for denying a
defense challenge for cause and indicates that he considered the liberal grant
mandate. 21 Although it is not required for a military judge to place his or her
implied bias analysis on the record, doing so is “highly favored and warrants
increased deference from appellate courts.” 22 This is because it provides a
“vantage point of a military judge observing members in person and asking
the critical questions that might fill any implied bias gaps left by counsel.” 23
However, a mere “[i]ncantation of the legal test [for implied bias] without
analysis is rarely sufficient in a close case.” 24 We afford a military judge less
deference if an analysis of the implied bias challenge on the record is not
17 United States v. Rolle, 53 M.J. 187, 191 (C.A.A.F. 2000) (citations and internal
quotation marks omitted).
18 United States v. Downing, 56 M.J. 419, 422 (C.A.A.F. 2002) (citations omitted).
19 United States v. Elfayoumi, 66 M.J. 354, 356 (C.A.A.F. 2008).
20 United States v. Townsend, 65 M.J. 460, 463 (C.A.A.F. 2008).
21United States v. Dockery, 76 M.J. 91, 96 (C.A.A.F. 2017); United States v. Clay,
64 M.J. 274, 277 (C.A.A.F. 2007).
22 Dockery, 76 M.J. at 96.
23 Clay, 64 M.J. at 277.
24 Unites States v. Peters, 74 M.J. 31, 34 (C.A.A.F. 2015).
7
provided. 25 In applying this standard, we look to the totality of the circum-
stances. 26
The test for implied bias takes into account, among other distinct military
factors, the confidence appellate courts have that military members will be
able to follow the instructions of military judges and thus, while it will often
be possible to rehabilitate a member on a possible question of actual bias,
questions regarding the appearance of fairness may nonetheless remain. 27
The issue therefore is whether the risk the public will think the accused
received anything less than a fair trial is “too high.” 28
Further, the liberal grant mandate requires the military judge to err on
the side of granting a defense challenge. 29 That is, “if after weighing the
arguments for the implied bias challenge the military judge finds it a close
question, the challenge should be granted.” 30 This serves as a preventive
measure because “it is at the preliminary stage of the proceedings that
questions involving member selection are relatively easy to rapidly address
and remedy.” 31
In United States v. Woods, 32 United States v. Rogers, 33 and United States
v. Peters, 34 the Court of Appeals for the Armed Forces [CAAF] found that it
was error for a particular member to sit on the panel after the military judge
had failed to grant a meritorious implied bias challenge for cause. After
making this determination, CAAF did not conduct a prejudice analysis in any
25United States v. Bagstad, 68 M.J. 460 (C.A.A.F. 2010) (citing United States v.
Richardson, 61 M.J. 113, 120 (C.A.A.F. 2005)).
26 United States v. Nash, 71 M.J. 83, 88 (C.A.A.F. 2012).
27 United States v. Woods, 74 M.J. 238, 243 (C.A.A.F. 2015).
28 Id. (quoting United States v. Townsend, 65 M.J. 460, 463 (C.A.A.F. 2008).
29United States v. Peters, 74 M.J. 31, 34 (C.A.A.F. 2015) (citing United States v.
Rome, 47 M.J. 467, 469 (C.A.A.F. 1998)).
30 Id.
31 Id. (citing Clay, 64 M.J. at 277).
32 74 M.J. 238.
33 United States v. Rogers, 75 M.J. 270, (C.A.A.F. 2016).
34 74 M.J. 31.
8
of these cases. 35 Similarly, when considering whether the military judge
failed to properly grant an implied bias challenge, we consider the “totality of
the circumstances.” However, we consider neither the evidence adduced at
trial nor what the final result of the trial happened to be. 36 This is based on
sound logic. We must only consider whether an accused, who selected trial by
members as was his legal right, received a fair trial from its start, and was
judged by unbiased members, regardless of the evidence that ultimately may
have established his guilt. Further, the same members adjudged a sentence,
and the perception of bias could extend beyond the findings to the sentence
adjudged by the members. No accused, regardless of the amount of evidence
the government may have to prove his guilt, can receive a fair trial if biased
members are permitted to sit in judgment. As such, the analysis of this issue
focuses solely on the voir dire process, without consideration of the evidence
the government later presents at trial on the merits, and whether, under the
totality of the circumstances, the public would believe an accused received a
fair trial with the challenged member sitting on the panel.
2. Analysis
Here, LT Alpha, while filling out his court-martial questionnaire, stated
that he had two young daughters, ages 8 and 11. As the Government correct-
ly points out, a member having two daughters close in age to the victims in
the case does not necessarily mean he or she cannot give an accused a fair
trial, nor do we establish a bright-line rule that individuals who have chil-
dren close in age to victims in a case may not sit as member. Multiple mem-
bers on Appellant’s panel had children close in age to the victims in this case,
and not all were subject to challenge.
Rather, the issue arose when LT Alpha stated in individual voir dire that
he not only thought about his daughters when he reviewed the charge sheet
prior to voir dire, but did so in “not a good way.” He further stated that “it
35 We are unaware of any case in which CAAF conducted such a prejudice analy-
sis following a determination that a challenged member sat on a court-martial panel
following a military judge’s erroneous denial of a challenge for case against that
member.
36 See Nash, 71 M.J. at 89 n. 4 (“[I]t is incumbent upon military judges to tailor
the application of the implied bias test to the context presented.”) (emphasis added).
Reviewing courts thus look at the totality of factors and circumstances, but not
complete an evidentiary review of the entire case or outcome. See, e.g., Woods, 74
M.J. at 243-45; Peters, 74 M.J. at 35-36; Nash, 71 M.J. at 88-90; Strand, 59 M.J. at
459-60.
9
would be hard not to” think about his daughters when witnesses testified
throughout the trial. Remarkably, unlike CDR’s Bravo and Sierra, neither
trial counsel nor the military judge asked any further questions of LT Alpha.
It is possible that LT Alpha’s comments could have been reconciled in a way
that rehabilitated him as an unbiased member. However, neither the trial
counsel nor the military judge attempted to rehabilitate him. Nor did the
military judge or the parties provide LT Alpha a warning that he must
disregard any feelings concerning his own daughters when conducting his
deliberations and voting on findings and sentence. Most importantly, because
he was not asked a single rehabilitative question, the public is left with the
impression that every time a witness testified, LT Alpha would be thinking of
his own daughters “not in a good way,” not only because he told counsel it
would be hard not to, but because he was never instructed by the military
judge not to do so.
The Government asks us to compare this case to similar fact patterns in
Castillo, 37 Barrow, 38 and McDonald. 39 While the denial of challenges for
cause in all three of these cases were upheld, in each case a full colloquy was
conducted to establish the fact that the member could disregard the pre-
sumptive bias and decide the case solely on the evidence presented.
In Castillo, the accused was charged with sexual assault. One member
was a sexual assault victim himself. In a colloquy with the military judge, the
member testified that the assault would not impact his ability to judge the
case, because he did not view the case on trial “as the same issue at all.” 40
The military judge denied the challenge for cause, finding that based on
observing his demeanor, the incident would not affect his deliberations in the
case. 41 CAAF upheld the judge’s ruling; however, Judge Ryan, in a concurring
opinion, clearly outlined the way in which to consider these issues:
It is my view that, where the correct law is recognized and
there is no erroneous application of the law or view of the facts,
military judges should receive the deference to which they are
37 United States v. Castillo, 74 M.J. 39 (C.A.A.F. 2015).
38 United States v. Barrow, 42 M.J. 655 (A.F. Ct. Crim. App. 1995).
39 United States v. McDonald, 57 M.J. 747 (N-M. Ct. Crim. App. 2002), rev’d on
other grounds, 59 M.J. 426 (C.A.A.F. 2003).
40 Castillo, 74 M.J. at 42.
41 Id.
10
entitled under our precedent on matters of implied bias. This
Court is better suited to remind military judges that challenges
are to be liberally granted . . . . 42
The military judge in Castillo not only rehabilitated the member, but also
correctly applied the facts of the case to the correct legal standard. In Appel-
lant’s case, neither occurred. LT Alpha was never rehabilitated, and the
military judge denied the Defense’s challenge utilizing incorrect facts. As
such, Appellants case is distinguishable from Castillo.
Barrow is a 1995 case from the Air Force Court of Criminal Appeals
[AFCCA]. There, the accused was convicted by a panel of members of sexual
assault of his stepdaughter. Two members had close family members who
were victims of sexual assault, and both members were challenged by defense
counsel for implied bias. During a lengthy colloquy with the military judge,
both members stated they could be impartial, would not let personal experi-
ences impact on Appellant’s case, and had not formed any conclusions regard-
ing allegations of rape or child sexual abuse. 43 The military judge then denied
the challenges, and AFCCA affirmed. The Court of Appeals for the Armed
Forces found this was a close call, but determined that “after all, close calls
are what exercising discretion is all about.” 44 As CAAF has repeatedly said,
based on the liberal grant mandate, if there is a “close call,” the military
judge should grant the challenge for cause.
Finally, the Government highlights this Court’s 2002 opinion in McDon-
ald, 45 a case with facts closely analogous to Appellant’s case. McDonald
involved child sexual abuse in which two potential members expressed
concern about whether they could keep feelings they have for their own
daughters from the deliberative process. Defense counsel challenged two
members, both chief petty officers (E-7), based on similar answers to voir dire
questions as LT Alpha gave in Appellant’s case. This Court found one of the
chief’s answers particularly close, in that he originally said he would try to
separate his daughters from the deliberative process and listen only to the
facts of the case, but when pressed further by defense counsel stated that he
“[thought] he could.” 46 When the military judge ruled on the challenge for
42 Id. at 44.
43 Barrow, 42 M.J. at 659.
44 Id. at 661.
45 McDonald, 57 M.J. 747.
46 Id. at 752.
11
cause, he applied the correct facts to his analysis, and determined that the
candor and thoughtfulness of the member warranted keeping him on the
panel. By contrast, the military judge here based his ruling on incorrect facts.
Additionally, in McDonald the member was rehabilitated, stating he thought
he could keep separate his feelings for his own daughters outside the deliber-
ative process, and he was clearly instructed that it was necessary for him to
do so. Here, LT Alpha never stated he could separate his feelings for his
daughters from the deliberative process, in fact said it would be hard to do
just that, and was never told he was required to do so. As such, McDonald is
distinguishable from Appellant’s case. What most clearly distinguishes this
case from Castillo, Barrow, and McDonald is the lack of any attempt to
rehabilitate the court member.
At oral argument, the Government argued that the trial counsel, and by
implication the military judge, were not mistaken when they stated that
LT Alpha was very clear that he could leave his thoughts of his daughters
outside Appellant’s case, and that he would evaluate Appellant’s case based
solely on the evidence. Specifically, the Government asserted that the trial
counsel was drawing upon LT Alpha’s answers during general voir dire when
he provided his rationale for the military judge to deny the Defense’s chal-
lenge for cause against that member. We find the Government’s position on
this issue to be unpersuasive. The general voir dire questions were vague
questions asked of all members, from which a simple hand raise was utilized
to signal concurrence. These questions did not permit clarification or specific-
ity. Thus, LT Alpha was not “very clear” about any response he gave, other
than it would be hard not to think of his daughters when he saw the witness-
es testify. Moreover, he was never instructed that he must deliberate and
vote on findings and sentence [if necessary] in this case without regard to his
thoughts of his daughters.
In Appellant’s case, neither the trial counsel nor the military judge con-
ducted a colloquy with LT Alpha in an attempt to rehabilitate him and to
inform him that he was prohibited from thinking about his daughters while
listening to the testimony and considering the other evidence. Therefore, an
objective member of the public, and this Court, are left to reasonably infer
that LT Alpha would have a hard time not thinking about his daughters
during the court-martial and that his deliberations and votes on findings and
sentence in the case were conducted while he viewed the evidence through
that impermissible lens. Even worse, the trial counsel made arguments
regarding the challenge for cause that suggested a rehabilitation colloquy
12
had been conducted, 47 and the military judge adopted those incorrect facts
and based his denial of the challenge upon them. Contrary to the trial coun-
sel’s claim, there was no clarification of LT Alpha’s responses, much less
anything to suggest he was “very clear that he could leave it outside,” or that
it “won’t color the way that he looks at the case.” As LT Alpha was never
asked those questions, the record is absent of any evidence to support that
what the trial counsel was arguing was, in fact, true.
This implied bias challenge for cause at issue was, at best, a very close
call. LT Alpha answered truthfully and openly that he would have a hard
time not thinking about his daughters throughout the course of the trial. This
should have alerted the military judge to the fact that he was struggling to
separate his own personal feelings and opinions about his daughters from the
evidence and facts of Appellant’s case. Due to the lack of additional question-
ing to clarify and provide instructional guidance on the issue, an objective
member of the public cannot be confident LT Alpha was able to do what he
himself said was “hard” to do. We decline to guess whether LT Alpha was
able to focus on the evidence and not his daughters during Appellant’s case,
as such speculation flies in the face of the liberal grant mandate. “If after
weighing the arguments for the implied bias challenge the military judge
finds it a close question, the challenge should be granted.” 48 We find under
the totality of the circumstances presented that the military judge abused his
discretion when he denied Appellant’s challenge for cause.
III. CONCLUSION
The findings and sentence are SET ASIDE and DISMISSED and the
record is returned to the Judge Advocate General of the Navy for remand to
an appropriate convening authority with authority to order a rehearing.
Chief Judge MONAHAN and Senior Judge STEPHENS concur.
47 Of note, we do not find that the trial counsel intentionally misled the military
judge as to LT Alpha’s answers. The court-martial had 14 members in the venire, and
the responses trial counsel attributed to LT Alpha were made nearly word-for–word
by other members. Unlike us, neither the trial counsel nor the military judge had the
transcript of the voir dire in front of them. We find this to be an honest mistake.
48 United States v. Peters, 74 M.J. 31, 34 (C.A.A.F. 2015).
13
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
14