United States v. Private First Class GEORGE R. GALVAN

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
HAIGHT, PENLAND, and WOLFE
Appellate Military Judges
UNITED STATES, Appellee
v.
Private First Class GEORGE R. GALVAN
United States Army, Appellant
ARMY 20140320
Headquarters, U.S. Army Intelligence Center of Excellence and Fort Huachuca
Douglas K. Watkins, Military Judge
Colonel Timothy J. Cody, Staff Judge Advocate (pretrial)
Colonel Joseph A. Keeler, Staff Judge Advocate (post-trial)
For Appellant: Colonel Kevin Boyle, JA; Major Amy E. Nieman, JA; Captain Brian
D. Andes, JA (on brief).
For Appellee: Colonel Mark H. Sydenham, JA; Major Daniel D. Derner, JA; Captain
Steve T. Nam, JA (on brief).
31 March 2016
----------------------------------
MEMORANDUM OPINION
----------------------------------
This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
PENLAND, Judge:
A general court-martial composed of officer and enlisted members convicted
appellant, contrary to his pleas, of one specification of failure to obey a lawful
order, one specification of false official statement, two specifications of rape, one
specification of larceny, and one specification of adultery, in violation of Articles
92, 107, 120, 121, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 892,
907, 920, 921, and 934 [hereinafter UCMJ]. The convening authority approved the
adjudged sentence of a dishonorable discharge and confinement for two years.
We now review appellant’s case under Article 66, UCMJ. We have
considered matters personally raised by appellant pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982); they lack merit.
GALVAN—ARMY 20140320
Appellant assigns two errors, one of which warrants discussion but no relief:
WHETHER THE MILITARY JUDGE ABUSED HIS
DISCRETION WHEN HE DENIED THE DEFENSE’S
FOR CAUSE CHALLENGE OF COLONEL (COL) SK
“BRINGING IN AN EXPECTATION” THAT “THE
ARMY HAS A SEXUAL ASSAULT PROBLEM” AND
THERE “WASN’T A GREAT NUMBER OF FALSE
REPORTS” OF SEXUAL ASSAULTS.
During group voir dire, trial defense counsel asked about the panel members’
attendance at training sessions regarding sexual assault prevention and response.
All of the members indicated they had received such training in the previous twelve
months. Colonel (COL) SK and several other panel members indicated that in the
context of the training they had been briefed on statistics regarding the incidence of
false reports. All panel members responded in the negative when asked whether they
believed “all or most sexual assault allegations are true” and whether “all or most
sexual assault allegations brought to court-martial are true.” Then, all panel
members responded affirmatively when defense counsel asked: “How many on this
panel believe that the Army has a sexual assault problem?”
The defense continued by specifically focusing on the prosecution of sexual
assault allegations. All panel members responded negatively when asked: whether
they “believe that the Army is not doing enough to prosecute alleged sexual
assaults?”; whether they felt “the best thing to do [in response to such an allegation]
is to bring that case to trial, so that our Soldiers see that the Army is serious about
prosecuting sexual assault?”; and, whether any of them believed acquittal of such a
charge would “contribute to the perception that sexual assaults are not taken
seriously in the military?”
Defense counsel subsequently followed up on several of these points during
individual voir dire with COL SK:
Q: Sir, one of the questions I had asked when I was
doing the questioning is, whether folks had some
knowledge of statistics from trainings about false -- you
know, how often reports of sexual assault are false and
you had mentioned you did have some familiarity with
those statistics. What, if any, statistics have you been
given regarding how often a report of sexual assault is
false?
A. Well, I don’t remember the specific statistics or
what the outcome was, but I do remember in part of the
2
GALVAN—ARMY 20140320
training that we were, let’s say, given those statistics. I
don't remember specifically.
Q. You don’t remember them specifically; do you
remember if the statistics were one way or the other
saying “On average, most sexual assault reports are not
false,” or “On average, most sexual assault reports are
false?”
A. No. It wasn’t couched in that way.
Q. Do you remember how it was couched, sir?
What they were?
A. It was just merely statistics that some reports
are inaccurate.
Q. I realize I just asked this to you, sir, but I’m just
trying to ask it in different ways to make sure I get at it.
Do you feel that there was, even though it wasn’t couched
in that way, when they gave you those statistics and some
reports are inaccurate or false and others are not; do you
remember if, specifically, there was some type of talk of
“More of these reports are not false” of “More of these
reports are true than are false.” Things like that?
A. No. I would say probably more than less than.
Q. Meaning more of the reports are false than are
true?
A. Well, more are on the less side in terms of it
wasn’t a great number of false reports.
Q. Okay, so if you can--as you recall the training
when they were talking about statistics, there were not a
large number of false reports.
A. Right.
Q. Any reason to doubt anything you’ve heard in
that training as to whether it’s true or not?
A. No.
3
GALVAN—ARMY 20140320
Q. Sir, on one of the questions I asked of
everybody and everybody gave an affirmative answer was
whether or not you all believe the Army had a sexual
assault problem. You were one of everybody who said
“Yes, I believe the Army has a sexual assault problem.”
Why do you believe that, sir?
A. Well, I mean it’s like anything else. I’ve been
in the military a long time, since ‘82, and the same thing
with drunk driving. It started off very small and then the
Army had a campaign against the problem to get after and
make folks aware that there is a mission. It’s the same
thing with sexual assault. It’s the Army trying to get after
what they believe is an issue.
Q. Do you believe that the Army has a sexual
assault problem that is different from, say, any college
campus anywhere in the United States? For example, it’s
more prevalent here than in other places?
A. Well, I’ve seen the reports where the Army says
it’s higher on average than out in the civilian populations.
Q. So some of the reports you’ve seen have showed
that the Army does actually have a higher rate of sexual
assault than out in other populations?
A. [Affirmative response.]
After the military judge questioned COL SK about his enlisted service as a
military policeman, government counsel followed with one question based on those
asked by the defense:
Q. Sir, [defense counsel] asked you about the
various reports that you’ve read as to sex assault maybe
being higher in the military than in the civilian world. If
you were to be a panel member on this case, could you put
all of that aside and decide this case solely on the facts
and the evidence that come before you, and the
instructions that are provided by the military judge?
A. Absolutely, ma’am.
4
GALVAN—ARMY 20140320
Defense counsel challenged COL SK for cause, arguing inter alia:
Colonel [SK] said he had heard statistics that there
are not a large number of false reports of sexual assault
and that he has no reason to doubt the truth of those
statistics, so he’s got a going in position that, on the
average, most of those reports of sexual assault are going
to be true.
Government counsel opposed the challenge, arguing, inter alia:
He believes that some reports are inaccurate. There
were not a large number of false reports. He did say that
the reports that [sic] are higher in the Army than with
civilians, but that the Army is trying to resolve an issue,
like DUI. He also answered Defense’s voir dire questions
about--in the affirmative, about whether or not someone
would lie or embellish things to get what they wanted, as
well as if he could envision a situation in which a person
might make a false complaint of sexual assault. He was
able to put aside his military training as an MP and stated
that he would be able to decide this case on the facts and
on your instructions.
Denying the defense challenge, the military judge reasoned:
I’ve considered the challenge for cause on the basis
of both actual and implied bias and the mandate to
liberally grant defense challenges. The challenge is
denied for the reasons stated by the government, for one
....
I’m a little bit troubled by the [sic] trying to make a
correlation between the statistics on false complaints
which the court doesn’t have before it and doesn’t have
personal knowledge of, and what [sic] a member’s belief
about what they might be. I understand that the defense
might be concerned with their bringing in an expectation
but Colonel [SK], specifically, said he could put all of that
aside and follow my instructions in this case. He actually
said “Absolutely,” so that challenge is denied.
Our superior court has established the standard of review in cases such as
appellant’s:
5
GALVAN—ARMY 20140320
“A military judge’s ruling on a challenge for cause is
reviewed for an abuse of discretion. Military judges are
afforded a high degree of deference on rulings involving
actual bias. This reflects, among other things, the
importance of demeanor in evaluating the credibility of a
member’s answers during voir dire. By contrast, issues of
implied bias are reviewed under a standard less deferential
than abuse of discretion, but more deferential than de
novo.”
United States v. Woods, 74 M.J. 238, 243 (C.A.A.F. 2015) (quoting United States v.
Downing, 56 M.J. 419, 422 (C.A.A.F. 2002)).
“The burden of establishing that grounds for a challenge exist is upon the
party making the challenge.” United States v. New, 55 M.J. 95, 99 (C.A.A.F. 2001)
(citing R.C.M. 912(f)(3)); United States v. Wiesen, 57 M.J. 48, 49 (C.A.A.F. 2002);
United States v. Rolle, 53 M.J. 187, 191 (C.A.A.F. 2000); United States v. Warden,
51 M.J. 78, 81 (C.A.A.F. 1999); United States v. Giles, 48 M.J. 60, 63 (C.A.A.F.
1998). However, “[m]ilitary judges must follow the liberal-grant mandate in ruling
on challenges for cause . . . .” United States v. Daulton, 45 M.J. 212, 217 (C.A.A.F.
1996) (quoting United States v. White, 36 M.J. 284, 287 (C.M.A. 1993)); see also
United States v. Wiesen, 56 M.J. 172 (C.A.A.F. 2001).
“Actual bias is personal bias that will not yield to the military judge’s
instructions and the evidence presented at trial.” Woods, 74 M.J. at 243 (quoting
United States v. Nash, 71 M.J. 83, 88 (C.A.A.F. 2012)). Our evaluation of implied
bias has a slightly different focus, based on an “objective test” and “the
consideration of the public’s perception of fairness in having a particular member as
part of the court-martial panel.” Id. (quoting United States v. Peters, 74 M.J. 31, 34
(C.A.A.F. 2015)).
We recognize and certainly agree with the government’s statement that “[t]he
question . . . is not whether a member has particular views but whether they can put
these views aside to evaluate the case on its merits.” Appellee’s Br. 14 (citing
United States v. Elfayoumi, 66 M.J. 354, 357 (C.A.A.F. 2008)). However, we must
note that the government, in part, incorrectly briefs the facts of this case: “When
asked by the trial counsel if he could set aside . . . any prior exposure to SHARP
training and statistics about false reports, Colonel SK said he could do so . . . .”
Appellee’s Br. 16. The government also writes that COL SK “unequivocally stated
that he could put aside the statistics on false reports and follow the military judge’s
instructions.” Appellee’s Br. 19. In fact, COL SK was not specifically asked by
either government counsel or the military judge whether he recognized that such
statistics had no bearing on his duties in appellant's case. Nonetheless, trial defense
6
GALVAN—ARMY 20140320
counsel did not ask COL SK whether his exposure to false reporting statistics would
somehow diminish his ability to impartially evaluate appellant’s case in accordance
with the law and evidence. Based on the circumstances, including COL SK’s vague
recollection of such statistics, we find appellant did not meet his burden to establish
that COL SK possessed actual bias.
Turning to the issue of implied bias, we conclude that members of the public
would perceive no illegality, unfairness or partiality with COL SK’s service as a
panel member. See R.C.M. 912(f)(1)(N). In making this judgment, we note his
disagreement during group voir dire with the propositions that all or most reports of
sexual assault are true or that all or most sexual assault allegations which proceed to
courts-martial are true. We also note his unequivocal response—“Absolutely,
ma’am”—to the question of whether he could set aside the possibility that the Army
has a larger incidence of sexual assaults than the civilian community and decide this
case solely on the evidence and instructions thereon. We are confident that COL
SK’s answer was not dependent on any particularized training information to which
he was exposed and, instead, represented his ability and willingness to serve as an
impartial factfinder, “the sine qua non for a fair court-martial.” Wiesen, 56 M.J. at
174 (quoting United States v. Modesto, 43 M.J. 315, 318 (1995)). We find the
military judge did not abuse his discretion in denying the challenge for cause, even
in light of the liberal grant mandate.
CONCLUSION
The findings and sentence are AFFIRMED.
Senior Judge HAIGHT and Judge WOLFE concur.
FOR THE
FOR THE COURT:
COURT:
MALCOLM
MALCOLM H. H. SQUIRES, JR.
SQUIRES JR.
Clerk
Clerk of
of Court
Court
7