United States v. Specialist ROBERT S. AVERY, ARMY 20140202

Background

Appellant, a 23-year-old soldier, exchanged Facebook messages with HK, a 12-year-old stepdaughter of a babysitter; messages included sexualized conduct and an explicit insult (“cum guzzling gutter slut”).
Appellant was convicted at general court-martial of sexual assault of a child (Article 120b) and communicating indecent language to a minor (Article 134); sentence: bad-conduct discharge and reduction to E-1; convening authority approved.
During voir dire multiple panel members said they believed a conviction for a sexually-based offense should result in discharge; each later indicated to the military judge they could follow instructions to consider the full range of punishments.
Defense challenged four members for cause based on implied bias/inelastic sentencing attitudes; the military judge denied the challenges after rehabilitative questioning.
Appellant also challenged the mens rea instruction for indecent language (arguing Elonis and later CAAF decisions required higher mens rea) and complained of 422-day post-trial delay (402 days government-attributable).
This court affirmed findings, held the military judge abused discretion in denying the four challenges for cause under implied-bias totality-of-circumstances reasoning, set aside the sentence, but upheld the indecent-language conviction and found no due-process violation from post-trial delay; remanded for sentence rehearing.

Issues

Issue	Appellant's Argument	Government's Argument	Held
Challenge for cause based on members’ inelastic sentencing views	Four members’ statements that convicted sexual offenders must be discharged created implied bias; judge’s rehabilitation insufficient; set aside sentence	Rehabilitative questioning cured any predisposition; each member affirmed ability to follow instructions; denial proper	Court: Abuse of discretion to deny challenges when viewing totality — cumulative effect of four members created unacceptable perception; sentence set aside
Mens rea for indecent language under Article 134	Elonis (and CAAF decisions) require more than negligence where statute silent; instruction here permitted a negligence/"reasonable person" standard so conviction should be vacated	Indecent-language definition (President/MCM) already separates innocent from wrongful speech; high "grossly offensive" standard makes Elonis inapplicable; no plain error	Held: Instruction correct; indecent-language offense sufficiently separates wrongful from innocent conduct; conviction affirmed
Post-trial delay (422 days)	Delay was excessive, unexplained, and prejudicial; seek relief	Record large; defense requested speedy processing repeatedly; government offered no explanation for much of delay but no due-process violation	Held: No due-process violation under Barker; would have approved sentence absent remand; no relief on this ground beyond rehearing
Whether findings should be set aside due to bias	(related to first issue) Bias tainted findings	No evidence members were biased as to findings; voir dire showed members could be impartial on guilt	Held: Findings affirmed — challenges affected sentencing only, not findings

Key Cases Cited

United States v. Martinez, 67 M.J. 59 (CAAF) (rehabilitative efforts insufficient where member showed inelastic sentencing attitude)
United States v. Elfayoumi, 66 M.J. 354 (CAAF) (R.C.M. 912(f)(1)(N) and implied bias principles)
United States v. Peters, 74 M.J. 31 (CAAF) (liberal grant mandate for challenges for cause)
United States v. Bagstad, 68 M.J. 460 (CAAF) (objective implied-bias test assessing public perception)
Elonis v. United States, 135 S. Ct. 2001 (U.S.) (reasonable-person/negligence instruction inadequate for threat statute silent on mens rea)
United States v. Gifford, 75 M.J. 140 (CAAF) (recklessness required for certain Article 92 general-order violations post-Elonis)
United States v. Rapert, 75 M.J. 164 (CAAF) (Elonis inapplicable where element of wrongfulness supplies mens rea under Article 134)
United States v. French, 31 M.J. 57 (CAAF) (indecent-language not a specific-intent crime)
United States v. Negron, 58 M.J. 834 (CAAF) (indecent language need only "tends reasonably" to corrupt morals or incite libidinous thought)
United States v. Green, 68 M.J. 266 (CAAF) (two alternative definitions of indecent language)
United States v. Davenport, 17 M.J. 242 (CMA) (some offenses naturally evoke predisposition to discharge; voir dire may be unavoidable but not necessarily disqualifying)