United States v. Vargas ( 2018 )

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 38991
________________________
UNITED STATES
Appellee
v.
Frank M. VARGAS
Senior Airman (E-4), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 15 March 2018
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Military Judge: Donald R. Eller, Jr.
Approved sentence: Dishonorable discharge, confinement for 29 years,
and reduction to E-1. Sentence adjudged 18 September 2015 by GCM
convened at Spangdahlem Air Base, Germany.
For Appellant: Colonel Jeffrey G. Palomino, USAF; Major Allen S.
Abrams, USAF; Major Johnathan D. Legg, USAF.
For Appellee: Major Tyler B. Musselman, USAF; Major Mary Ellen
Payne, USAF; Major Meredith L. Steer, USAF; Gerald R. Bruce, Es-
quire.
Before JOHNSON, MINK, and DENNIS, Appellate Military Judges.
Judge MINK delivered the opinion of the court, in which Senior Judge
JOHNSON and Judge DENNIS joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 18.4.
________________________
United States v. Vargas, No. ACM 38991
MINK, Judge:
A general court-martial comprised of officer and enlisted members con-
victed Appellant, contrary to his pleas, of two specifications of attempted abu-
sive sexual contact, three specifications of sexual assault, two specifications of
abusive sexual contact, and two specifications of assault consummated by a
battery, in violation of Articles 80, 120, and 128, Uniform Code of Military Jus-
tice (UCMJ), 10 U.S.C. §§ 880, 920, 928. The adjudged and approved sentence
consisted of a dishonorable discharge, 29 years of confinement, and reduction
to E-1.
On appeal, Appellant raises eleven assignments of error: (1) whether, in
light of United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016), the military judge
erred by instructing members that evidence of other charged sexual offenses
could be considered regarding whether Appellant had a propensity to commit
a particular charged offense; (2) whether the military judge abused his discre-
tion by declining to recuse himself; (3) whether the proceedings were tainted
by unremediated unlawful command influence (UCI); (4) whether the military
judge abused his discretion by denying Appellant access to discovery to support
Appellant’s motion to dismiss the charges for UCI; (5) whether the military
judge erred by failing to provide an instruction on the defense of mistake of
fact as to consent concerning Specification 2 of Charge III; (6) whether there
was a fatal variance with regard to Specification 1 of Charge III where the
members substituted the word “injure” for the word “bite”; (7) whether the mil-
itary judge erred by failing to grant Appellant’s motion to compel discovery of
electronic evidence; (8) whether the military judge erred by denying Appel-
lant’s motion to dismiss for multiplicity of charges; (9) whether the military
judge erred by denying Appellant’s motion to dismiss under Rule for Courts-
Martial (R.C.M.) 917; (10) whether the evidence is legally and factually suffi-
cient to support the findings of guilty; and (11) whether Appellant is entitled
to relief based on a facially unreasonable delay during the appellate review of
this case. 1
Based on our review of the lengthy and complex record, we conclude that
the military judge abused his discretion by failing to recuse himself from pre-
siding over the trial in this case. We reach this conclusion because he was a
potential witness with personal knowledge of disputed evidentiary facts con-
cerning the proceeding, specifically knowledge regarding the removal of Lieu-
tenant Colonel (Lt Col) CL, who was originally detailed as the military judge
in Appellant’s case, which was the subject matter of the alleged UCI, and be-
cause the military judge’s impartiality could be reasonably questioned. Our
1Assignments of error (6), (7), (8), (9), and (10) are raised pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982).
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United States v. Vargas, No. ACM 38991
holding that the military judge was disqualified and should have recused him-
self in this case compels us to set aside the findings of guilt and the sentence.
As a result, we do not address the remaining issues except whether Appellant
is entitled to any relief for the facially unreasonable delay during the appellate
review process.
I. BACKGROUND
The facts underlying the charges in this case pertain to sexual and physical
assault involving four victims. However, because those facts are not directly
relevant to the recusal issue, we focus on those that pertain to the issue of
recusal and the alleged UCI. The following background and statements are
derived from testimony, affidavits, and the military judge’s findings of fact in
the record of trial.
At the time of Appellant’s trial in 2015, the military judge 2 and Lt Col CL
were the two military judges assigned to the European Circuit of the Air Force
Trial Judiciary. The military judge was the Chief Circuit Military Judge in
Europe and was Lt Col CL’s immediate supervisor.
On 18 February 2015, the military judge convened an Article 39(a), UCMJ,
session to address the pretrial motions filed in Appellant’s case, including the
Defense motion to dismiss the case based on UCI in sexual assault cases in
general. At that time, trial defense counsel did not raise any issue relating to
Lt Col CL, who had been initially detailed as the military judge in Appellant’s
case but was subsequently removed from the case, nor did trial defense counsel
request to voir dire the military judge.
On 20 February 2015, prior to being detailed to Appellant’s case, a Senior
Defense Counsel (SDC)—one of two stationed in Europe—contacted the Chief
Trial Judge of the Air Force (Chief Trial Judge) by email, requesting an inter-
view to discuss Lt Col CL’s removal from several cases in Europe involving
Article 120, UCMJ, allegations, including Appellant’s case. The Chief Trial
Judge responded by email later that same day and declined to participate in
such an interview. The Chief Trial Judge stated that the decision to remove
Lt Col CL was “within our discretion, a judiciary privilege, and not something
that will be discussed.” The Chief Trial Judge then stated, “However, it had
absolutely nothing to do with a decision, ruling, or finding in a case in which
[Lt Col CL] was the judge.” The Chief Trial Judge concluded the email by stat-
ing that “[r]equesting interviews with a sitting judge (or judges) is something
2All references to “the military judge” refer to the military judge who presided over
Appellant’s court-martial.
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United States v. Vargas, No. ACM 38991
for which I would suggest closely reviewing our rules of professional responsi-
bility, state bar rules, etc.” The Chief Trial Judge copied the military judge, the
Deputy Chief Trial Judge of the Air Force, and the Chief of the Air Force Trial
Defense Division (who was also the SDC’s rater and supervisor) on his email
response.
After the SDC was detailed to represent Appellant, the military judge
scheduled an Article 39(a) session on 2 March 2015 to address a newly-raised
Defense motion for continuance. The SDC based his motion for continuance on
an insufficient amount of time to prepare for trial given the number of wit-
nesses in the case, the voluminous discovery to review, and the need to conduct
further investigation and submit a supplemental motion to dismiss the charges
for UCI based on an alleged effort to remove Lt Col CL from cases involving
Article 120, UCMJ, allegations. In an email to the parties prior to the Article
39(a) session, the military judge stated:
1. Per the AF/JAT [Air Force Trial Judiciary] process, I control
the detailing of the judge in Europe and, specifically, [Lt Col CL];
2. I was cc’d on an email from my Boss, [the Chief Trial Judge],
to the SDC indicating some limited responses to queries about
the below-mentioned items which the SDC should have in his
possession; and
3. Per [Military Rule of Evidence] 605, I may provide information
about docketing but cannot and will not testify as to any matters
at issue.
After this Article 39(a) session, the military judge granted the motion for con-
tinuance. On 9 March 2015, Appellant’s SDC submitted a motion for the mili-
tary judge to recuse himself from sitting as the military judge on Appellant’s
case and a supplemental motion to dismiss based on UCI due to the removal of
Lt Col CL as the military judge in Appellant’s case.
At the next Article 39(a) session, held on 12–13 March 2015, the Defense
argued that the military judge should recuse himself from Appellant’s case
since he was in the untenable position of having to determine whether his own
actions amounted to actual or apparent UCI and he was a relevant and neces-
sary witness in Appellant’s case on the UCI issue. The Defense also argued
that a reasonable person would have doubts about the military judge’s impar-
tiality and ability to determine whether his rater, the Chief Trial Judge, com-
mitted actual or apparent UCI, and that a reasonable person would have
doubts about the military judge’s impartiality and ability to make rulings in
Appellant’s case because his rater—the Chief Trial Judge—sent an email that
implied Appellant’s SDC may have violated a rule of professional responsibil-
ity. Under these circumstances, Appellant’s SDC requested a military judge
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United States v. Vargas, No. ACM 38991
from outside the Air Force Trial Judiciary rule on the supplemental motion to
dismiss for UCI. The military judge repeatedly asked the SDC to explain what
he, the military judge, may have done that could constitute UCI and how he
could be a witness in Appellant’s case since he could detail military judges for
any reason. The SDC responded that the military judge had knowledge—in his
supervisory role, separate from his role as a military judge—as to why Lt Col
CL was removed from Appellant’s case, and as a result, the military judge was
a witness on the issue of Lt Col CL’s removal.
The evidence submitted by Appellant’s defense counsel in support of the
the UCI and recusal motions included testimony and affidavits describing var-
ious discussions among Air Force attorneys regarding a dissatisfaction with
Lt Col CL serving as a military judge in cases involving Article 120, UCMJ,
allegations. The following is a summary of the evidence presented on the UCI
and recusal motions:
• The dissatisfaction with Lt Col CL apparently began in June 2014
when Lt Col CL dismissed with prejudice the charges in United States
v. Bowser, 73 M.J. 889 (A.F. Ct. Crim. App. 2014), aff’d, 74 M.J. 326(C.A.A.F. 2015), after the Government—represented by one of two sen-
ior trial counsel (the STC) stationed in Europe—defied a court order to
disclose trial counsel’s witness interview notes for an in camera review
following defense claims of a discovery violation.
• After Lt Col CL’s decision in Bowser, the STC and one of the two special
victims’ counsel (the SVC) stationed at Ramstein Air Base (AB), Ger-
many, began to discuss ways to prevent Lt Col CL from hearing cases
involving Article 120, UCMJ, allegations, or to have him removed from
the bench entirely. The STC and the SVC had these discussions with
each other and related discussions with other individuals within the
Air Force Judge Advocate General’s (JAG) Corps, including the Third
Air Force (3 AF) Staff Judge Advocate (SJA), the 31st Fighter Wing (31
FW) SJA, Air Force Government Trial and Appellate Counsel Division
(JAJG) personnel, United States Air Forces in Europe Office of the SJA
(USAFE/JA) personnel, and the Air Force Associate Chief of the SVC
Division. Following a visit by the 3 AF SJA to the Ramstein SVC office
in July 2014, the SVC asked the other Ramstein special victims’ coun-
sel, who was then an active duty Captain (hereinafter the “former
SVC”), “not to discuss or mention this meeting as it could be improper
UCI, or words to that effect, and [the SVC] didn’t want defense or oth-
ers to know there [was] a possible concerted effort to try and get Lt Col
[CL] off the bench through ‘loss of confidence.’”
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United States v. Vargas, No. ACM 38991
• Discussions about the removal of Lt Col CL from cases involving Article
120, UCMJ, allegations continued in August 2014 after Lt Col CL was
appointed as the Article 32, UCMJ, investigating officer (IO) in the case
of United States v. Miller at Aviano AB, Italy. The STC and the SVC
planned to request Lt Col CL recuse himself as the IO in Miller. Ac-
cording to the former SVC, the SVC said, “[The 31 FW SJA], JAJG,
USAFE/JA, and 3 AF [Office of the SJA] were all involved in the deci-
sion to get Judge [CL] kicked off that Article 32, but ultimately decided
that [the SVC] should submit her memorandum alone so ‘there
wouldn’t be UCI issues in the case down the line’ with having the gov-
ernment request the IO to recuse himself.” Eventually, the SVC elected
not to submit the memorandum requesting that Lt Col CL recuse him-
self as the IO in the Miller case. However, the effort to get Lt Col CL
removed as the IO was subsequently the subject of a motion to dismiss
for UCI in the Miller case.
• On 7 October 2014, the charges against Appellant were referred to a
general court-martial. On 17 October 2014, Appellant’s case was dock-
eted for trial with Lt Col CL detailed as the military judge. The case
was set for arraignment and motions on 18 February 2015 with trial to
begin on 9 March 2015. On 20 October 2014, Lt Col CL sent out a sched-
uling order.
• In late October/early November 2014, Lt Col CL served as the trial
judge in the case of United States v. Jay at Ramstein AB, Germany.
The military judge was present during at least some portion of that
court-martial for the purpose of observing Lt Col CL in court. Lt Col
CL acquitted the accused in Jay of three specifications of sexual assault
in violation of Article 120, UCMJ, but convicted the accused of three
specifications of assault consummated by a battery. Lt Col CL sen-
tenced the accused to two days of confinement and a reduction in rank
from E-5 to E-4, and later made a recommendation for clemency from
the bench that the convening authority set aside the court-martial con-
viction and impose nonjudicial punishment.
• On 25 November 2014, Lt Col CL was removed from four cases involv-
ing Article 120, UCMJ, allegations, including Appellant’s case. The
military judge detailed himself to three of the cases, including Appel-
lant’s case, and the Chief Trial Judge detailed himself to the fourth
case. Lt Col CL remained detailed to one case involving at least one
Article 120, UCMJ, allegation, in which he had already made pretrial
rulings.
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United States v. Vargas, No. ACM 38991
After hearing the evidence and the argument of counsel, the military judge
declined to recuse himself, making extensive findings of fact on the record and
specifically stating that the “Defense presented no evidence that the substance
of the conversations between [the STC], [the SVC], and [the former SVC], or
any other judge advocate within Third Air Force, USAFE, JAJG, or the SVC
community, was transmitted to [the Chief Trial Judge] or anyone in the trial
judiciary.” Relying on the absence of any evidence from the Defense that any-
one within the Air Force Trial Judiciary was aware of complaints about Lt Col
CL’s rulings, the military judge ruled that there was not sufficient evidence of
UCI to shift the burden to the Government to disprove UCI had occurred. The
military judge then denied the supplemental motion to dismiss the charges
based on UCI relating to the alleged effort to have Lt Col CL removed from
cases involving Article 120, UCMJ, allegations.
The military judge then permitted the SDC to call Lt Col CL as a witness
on what was essentially a request for the military judge to reconsider his rul-
ings on the recusal and UCI motions. Lt Col CL testified regarding conversa-
tions he had with the military judge and the Chief Trial Judge in the days
following the Jay trial in late October/early November 2014. Lt Col CL testified
that following the Jay trial, as he was departing the building where the court-
room was located, he was approached by the former SVC who informed Lt Col
CL of the effort being made to have him removed from cases involving Article
120, UCMJ, allegations. Lt Col CL then notified his immediate supervisor—
the military judge—of what the former SVC had told him about efforts to have
him removed from cases involving Article 120, UCMJ, allegations.
In a post-trial affidavit submitted by Lt Col CL, he expanded on his in-court
testimony. Lt Col CL stated that the day after his discussion with the former
SVC following the Jay trial, he received an email from the former SVC con-
taining information that the STC and the SVC were telling people Lt Col CL
had a past personal experience that caused him to be biased in certain Article
120 cases. Lt Col CL denied any such personal experience had ever occurred
and forwarded that information to the military judge in some form. Lt Col CL
stated that a day or two after he first informed the military judge about the
alleged removal effort, the military judge informed Lt Col CL he was being re-
moved from most of the cases involving Article 120, UCMJ, allegations to
which he was then detailed. Lt Col CL recalled having several discussions
about this issue and speaking independently “for at least a few hours” with
both the military judge and the Chief Trial Judge prior to the re-detailing let-
ters being issued. Lt Col CL stated that he was told the reason for his removal
from the cases involving Article 120, UCMJ, allegations was “due to [his] judi-
cial temperament and lack of courtesy, as demonstrated in 3 cases: US v. Jay,
US v. Bowser, and US v. Miller.” During his in-court testimony, Lt Col CL
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United States v. Vargas, No. ACM 38991
stated he “maintained a full calendar of other cases so [his removal from cer-
tain cases] was specific to [Article] 120 cases.”
Although the military judge’s oral ruling on the recusal and UCI motions
was announced prior to Lt Col CL’s in-court testimony, his written ruling was
issued after Lt Col CL testified. In his written ruling (unlike in his oral ruling),
the military judge concluded, based on Lt Col CL’s testimony, that the Defense
had now produced some evidence of UCI and shifted the burden of proof on the
UCI motion to the Government. The Government presented no additional evi-
dence on the UCI issue, but the military judge, after hearing further argument
from the parties, ruled that he was convinced beyond a reasonable doubt that
the evidence introduced before the court did not constitute UCI. He further
held that there was no evidence of actual or apparent UCI by anyone in the Air
Force Trial Judiciary, and even if there had been UCI, it had no effect on the
processing of Appellant’s case.
As noted above, the military judge made extensive written findings of fact
and conclusions of law. The military judge found that the removal of Lt Col CL
from Appellant’s case occurred as an exercise of discretion within the judiciary
and that the removal was not done based on any decision, ruling, or finding
made by Lt Col CL. The military judge determined the circumstances were
“nowhere near the situation” where he would have to decide whether he him-
self “had engaged in misconduct” and that he was not a necessary witness be-
cause “the factual background was not in dispute based on the evidence pre-
sented thus far.” The military judge further found that the Defense concerns
about his ability to evaluate the actions of the Chief Trial Judge were “un-
founded” and that all of the issues in total did not warrant his recusal. Ulti-
mately, the military judge concluded that based on “the evidence presented
and in light of the circumstances, any reasonable person with the requisite
knowledge of the evidence at hand would have great confidence in [his] impar-
tiality and ability to preside over the remainder of the case.”
II. DISCUSSION
A. Recusal of the Military Judge
Appellant asserts that the military judge abused his discretion by failing
to recuse himself in this case and that his failure to do so would cause a rea-
sonable observer to question the fairness of Appellant’s trial. We agree.
1. Law
We review a military judge’s decision on recusal for abuse of discretion.
United States v. McIlwain, 66 M.J. 312, 314 (C.A.A.F. 2008) (citing United
States v. Butcher, 56 M.J. 87, 90 (C.A.A.F. 2001)).
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United States v. Vargas, No. ACM 38991
Rule for Courts-Martial (R.C.M.) 902 outlines the circumstances for dis-
qualification of a military judge:
(a) In general. Except as provided in subsection (e) of this rule, a
military judge shall disqualify himself or herself in any proceed-
ing in which that military judge’s impartiality might reasonably
be questioned.
(b) Specific grounds. A military judge shall also disqualify him-
self or herself in the following circumstances:
(1) Where the military judge has … personal knowledge of
disputed evidentiary facts concerning the proceeding.
….
(3) Where the military judge has been or will be a witness in
the same case ….
….
“‘[W]hen a military judge’s impartiality is challenged on appeal, the test is
whether, taken as a whole in the context of this trial, a court-martial’s legality,
fairness, and impartiality were put into doubt’ by the military judge’s actions.”
United States v. Martinez, 70 M.J. 154, 157 (C.A.A.F. 2011) (alteration in orig-
inal) (quoting United States v. Burton, 52 M.J. 223, 226 (C.A.A.F. 2000)). The
appearance of impartiality is reviewed on appeal objectively and tested under
the standard of, “[A]ny conduct that would lead a reasonable [person] knowing
all the circumstances to the conclusion that the judge’s impartiality might rea-
sonably be questioned is a basis for the judge’s disqualification.” United States
v. Kincheloe, 14 M.J. 40, 50 (C.M.A. 1982) (internal quotation marks and cita-
tion omitted). “Whether the military judge should disqualify [him]self is viewed
objectively, and is ‘assessed not in the mind of the military judge [him]self, but
rather in the mind of a reasonable man . . . who has knowledge of all the facts.’”
McIlwain, 66 M.J. at 314 (quoting Wright, 52 M.J. at 141).
2. Analysis
a. Specific Grounds for Recusal under R.C.M. 902(b)
It is apparent from the record of trial that the military judge had personal
knowledge of the circumstances of the removal of Lt Col CL as the original
military judge in Appellant’s case. In light of the alleged effort made to remove
Lt Col CL as a military judge entirely, or at least from cases involving Article
120, UCMJ, allegations, the reason for his removal from Appellant’s case was
a disputed fact. Since the military judge was the person who removed Lt Col
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United States v. Vargas, No. ACM 38991
CL from Appellant’s case, the military judge was obviously a potential witness
on the issue of the alleged UCI, regarding his own involvement with the re-
moval decision as well as any knowledge he had regarding the Chief Trial
Judge’s role in the removal. Consequently, the military judge was placed in the
position of having to impartially determine whether he or his immediate su-
pervisor, the Chief Trial Judge, had engaged in UCI or had been unlawfully
influenced by the alleged removal effort.
It is also apparent that the military judge had personal knowledge of the
alleged effort to remove Lt Col CL from cases involving Article 120, UCMJ,
allegations, before removing Lt Col CL from Appellant’s case. Whether the mil-
itary judge, Chief Trial Judge, or anyone in the Air Force Trial Judiciary had
been made aware of the alleged removal effort was also a disputed fact. The
military judge initially ruled on the UCI and recusal motions based on his find-
ing that no evidence had been presented as to whether anyone in the Air Force
Trial Judiciary had been made aware of the alleged effort to have Lt Col CL
removed from cases involving Article 120, UCMJ, allegations. Yet the military
judge himself had such evidence in the form of his personal knowledge.
The evidence presented by the Defense to the trial court on the UCI motion
clearly established that discussions were occurring regarding an effort to have
Lt Col CL removed from the trial bench or at least from cases involving Article
120, UCMJ, allegations based on dissatisfaction by some about Lt Col CL’s
actions in prior cases involving Article 120, UCMJ, allegations. The extent of
those discussions or effort was not completely established, but what is clear
from the record is that after Lt Col CL himself notified the military judge of
the information he had learned about discussions pertaining to the alleged ef-
fort to have him removed, Lt Col CL was, in fact, removed from four cases in-
volving Article 120, UCMJ, allegations by the military judge. The reason or
reasons for Lt Col CL’s removal are not clear, despite what Lt Col CL had been
told about why he was removed, but it is only reasonable to conclude that the
military judge knew precisely why Lt Col CL was removed from Appellant’s
case.
The military judge’s initial denial of Appellant’s UCI motion is particularly
troubling because the military judge claimed to base his decision on the ab-
sence of any evidence having been presented to the court that the effort to re-
move Lt Col CL had ever been communicated to anyone in the Air Force Trial
Judiciary. Lt Col CL’s subsequent testimony made it clear that he had dis-
cussed the removal effort with both the military judge and the Chief Trial
Judge prior to Lt Col CL’s removal from the four Article 120 cases, including
Appellant’s case. Consequently, it is obvious that when the military judge ini-
tially ruled on the UCI motion, he knew that he and the Chief Trial Judge had
been informed of the removal effort, at least by Lt Col CL, but the military
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United States v. Vargas, No. ACM 38991
judge chose not to inform the parties of his knowledge so that they could decide
how to proceed. Moreover, the fact that the military judge then decided to shift
the burden of proof to the Government on the UCI motion as a result of Lt Col
CL’s testimony emphasizes the criticality of this information of which the mil-
itary judge was already aware. Even after the burden of proof was shifted, the
Government produced no additional evidence and yet the military judge again
denied the UCI motion while indicating the absence of facts in dispute. Any
doubt about the military judge’s status as a potential witness was erased when
the military judge, in essence, testified from the bench as to his personal
knowledge that the removal of Lt Col CL from Appellant’s case was not due to
Lt Col CL’s rulings or decisions in any case. We find that the military judge
abused his discretion by failing to recuse himself once it was apparent that he
was a potential witness with personal knowledge of disputed evidentiary facts,
as required by R.C.M. 902(b).
b. Lack of Impartiality Under R.C.M. 902(a)
It is equally apparent to this court that to allow the findings in this case to
stand—when the military judge should have recused himself—runs the risk of
undermining the public’s confidence in the military justice process. We are not
persuaded that the statements of the military judge eliminate concerns that
could be created in the mind of a reasonable observer about the fairness of
Appellant’s trial or about a lack of impartiality on the part of the military
judge.
Taken as a whole in the context of this trial, we find that the appearance
of the court-martial’s impartiality was put into doubt by the military judge’s
actions. Against the backdrop of the alleged effort being made by some to re-
move a qualified military judge from a particular category of cases based on
his unpopular actions in such cases, we find that a reasonable person observing
Appellant’s court-martial would have substantial reason to question the mili-
tary judge’s impartiality given his role in removing Lt Col CL from Appellant’s
case and in having to assess whether he or the Chief Trial Judge had acted
improperly in doing so. We also find that such doubts spring from the military
judge’s status as a witness in this case, having knowledge of the disputed evi-
dentiary facts about Lt Col CL’s removal from the case and the potential influ-
ence of the alleged removal effort. As a result, we find that the military judge
abused his discretion by failing to recuse himself under R.C.M. 902(a).
We decide only that the military judge’s decision on his recusal was incor-
rect. Even though we recognize the seriousness of the alleged UCI, our decision
in this case does not address whether actual or apparent UCI occurred. The
UCI issue should have been litigated at the trial level and decided by a neutral
and detached military judge prior to any appellate review of that issue by this
court. It was not. Because we find the military judge should not have presided
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United States v. Vargas, No. ACM 38991
at Appellant’s trial, our decision goes no further than the recusal issue with
the sole exception of the timeliness of appellate review. Our decision is limited
to the particular facts of the recusal issue and does not extend to any other
matter, including the scope or application of the judicial privilege. We simply
hold that based on the facts before us, where there was substantial evidence of
an alleged concerted effort to have a military judge removed based on disagree-
ment with his actions in a certain class of cases, and the subsequent removal
of that military judge from several cases within that class, Appellant’s UCI
motion required an arbiter who was neutral and detached, both apparently and
in fact, and the military judge did not qualify as such.
c. Remedy
When a military judge should have recused himself, no particular remedy
is mandated, but the United States Court of Appeals for the Armed Forces
(CAAF) has previously applied a three-part test to decide whether reversal of
the convictions is appropriate. See United States v. Quintanilla, 56 M.J. 37,
80–81 (C.A.A.F. 2001) (citing Liljeberg v. Health Servs. Acquisition Corp., 486
U.S. 847, 862–64 (1988)). This test requires consideration of “the risk of injus-
tice to the parties in the particular case, the risk that the denial of relief will
produce injustice in other cases, and the risk of undermining the public’s con-
fidence in the judicial process.” Id. at 81 (quoting Liljeberg, 486 U.S. at 864).
In determining an appropriate remedy in this case, we considered the fact
that the military judge’s decision on recusal was directly related to the issue of
the alleged UCI. Both were threshold questions decided by the military judge
prior to the trial on the merits and could cast doubt in the mind of the public
on the fairness of other rulings by the military judge in Appellant’s case. Ap-
plying the Quintanilla test and considering our holding that the military judge
should have recused himself, we conclude that the appropriate remedy in this
case to avoid undermining the public’s confidence in the military judicial pro-
cess is to set aside the findings of guilt and the sentence and authorize a re-
hearing.
B. Delay in Completing Appellate Review
Appellant has asserted a right to timely review and appeal. Appel-
lant’s case was docketed with this court on 24 February 2016 and appel-
late review was not completed within 18 months.
1. Law
We review de novo whether Appellant has been denied the due process
right to a speedy post-trial review and appeal. United States v. Moreno, 63
M.J. 129, 142 (C.A.A.F. 2006). In Moreno, the CAAF established a pre-
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United States v. Vargas, No. ACM 38991
sumption of unreasonable post-trial delay that requires a due process re-
view when the Court of Criminal Appeals does not complete appellate re-
view and issue a decision within 18 months of docketing. Id.If there is a Moreno-based presumption of unreasonable delay or an
otherwise facially unreasonable delay, we examine the claim under the
four factors set forth in Barker v. Wingo, 407 U.S. 514, 530 (1972): “(1) the
length of the delay; (2) the reasons for the delay; (3) the appellant’s asser-
tion of the right to timely review and appeal; and (4) prejudice.” Moreno,
63 M.J. at 135. Moreno identified three types of prejudice arising from
post-trial processing delay: (1) oppressive incarceration; (2) anxiety and
concern; and (3) impairment of ability to present a defense at a rehearing.
Id. at 138–39.
“We analyze each factor and make a determination as to whether that
factor favors the Government or [Appellant].” Id. at 136. Then, we balance
our analysis of the factors to determine whether a due process violation
occurred. Id.; see also Barker, 407 U.S. at 533 (“Courts must still engage
in a difficult and sensitive balancing process.”). “No single factor is re-
quired for finding a due process violation and the absence of a given factor
will not prevent such a finding.” Id. However, where an appellant has not
shown prejudice from the delay, there is no due process violation unless
the delay is so egregious as to “adversely affect the public’s perception of
the fairness and integrity of the military justice system.” United States v.
Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006).
2. Analysis
This is a complicated case and the charged offenses are very serious.
Sixteen motions were filed and the trial spanned 15 days. The record of
trial is comprised of 16 volumes, including 1,808 pages of transcript, 26
prosecution exhibits, 13 defense exhibits, and 130 appellate exhibits. The
amount of time required by Appellant’s defense counsel to effectively and
professionally review the trial proceedings and assert errors was un-
derstandably much more than would be required in a simpler case. Like-
wise, the Government reasonably required more time than is typical to
fully analyze and effectively and professionally respond to Appellant’s
brief. Appellant sought and received eight enlargements of time to file his
brief and assignments of error, accounting for a total of 404 days after the
docketing of the case with this court. The Government sought and received
two 30-day enlargements of time to file its answer, accounting for a total
of 91 days. The court has taken approximately seven months to review the
record of trial, consider the briefs of counsel, and render this decision.
Appellant, who remains in confinement, has not pointed to any preju-
dice for the presumptively unreasonable delay except for speculation that
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United States v. Vargas, No. ACM 38991
if he is successful on his appeal that his incarceration may have been op-
pressive. We have carefully considered whether this delay amounted to a
violation of Appellant’s due process right to timely post-trial review. Con-
sidering all of the Barker factors and the circumstances of this case, we
conclude that the time taken to complete review of Appellant’s case is not
unreasonable. Accordingly, we find no due process violation. See Moreno,
63 M.J. at 143.
We recognize our authority to grant relief, when warranted, even in
the absence of a due process violation. See United States v. Tardif, 57 M.J.
219, 225 (C.A.A.F 2002); United States v. Gay, 74 M.J. 736, 744 (A.F. Ct.
Crim. App. 2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016); United States v.
Tardif, 57 M.J. 219, 225 (C.A.A.F 2002). In light of our disposition and the
particular circumstances of Appellant’s case, we find that no extraordi-
nary exercise of our Article 66, UCMJ, authority to grant additional relief
is warranted. 10 U.S.C. § 866.
III. CONCLUSION
The findings of guilt and the sentence are SET ASIDE. A rehearing is au-
thorized. Article 66, UCMJ, 10 U.S.C. § 866.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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