United States v. Uribe ( 2021 )

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Ryan G. URIBE, Staff Sergeant
United States Air Force, Appellant
No. 20-0267
Crim. App. No. 39559
Argued December 1, 2020—Decided February 9, 2021
Military Judges: Donald Eller Jr. and Mark F. Rosenow
For Appellant: Captain Amanda E. Dermady (argued); Lieu-
tenant Colonel Todd J. Fanniff and Major Rodrigo M.
Caruço.
For Appellee: Major Jessica L. Delaney (argued); Colonel
Shaun S. Speranza, Lieutenant Colonel Matthew J. Neil,
Major Peter F. Kellett, and Mary Ellen Payne, Esq. (on brief).
Judge OHLSON announced the judgment of the Court
and delivered an opinion, in which Judge SPARKS
joined. Judge MAGGS filed a separate opinion, concur-
ring in the judgment, in which Senior Judge
CRAWFORD joined. Chief Judge STUCKY filed a sepa-
rate opinion concurring in part and dissenting in part.
_______________
Judge OHLSON announced the judgment of the Court
and delivered an opinion, in which Judge SPARKS joined.
The military judge and senior trial counsel in this case
“became friends” approximately four years before Appellant’s
general court-martial. At trial the defense, joined by the Gov-
ernment, filed a motion to recuse the military judge because
of this friendship but the military judge denied the motion.
We granted review to determine “[w]hether the lower court
erred in finding the military judge did not abuse his discretion
in denying a joint motion to recuse.” United States v. Uribe,
80 M.J. 269 (C.A.A.F. 2020) (order granting review). We hold
that the military judge abused his discretion but that Appel-
lant is not entitled to relief under Liljeberg v. Health Servs.
Acquisition Corp., 486 U.S. 847 (1988).
United States v. Uribe, No. 20-0267/AF
Judgment of the Court
I. Facts
Major (Maj) Rosenow became a member of the Air Force
Judge Advocate General Corps (JAG Corps) in 2008. In July
2016 he became a military judge and was stationed at Travis
Air Force Base, California.
On March 1, 2018, the Chief Circuit Military Judge of the
Central Circuit, with the concurrence of the Chief Circuit Mil-
itary Judge of the Western Circuit, detailed Judge Rosenow
to Appellant’s court-martial which was held at Joint Base San
Antonio Lackland, Texas. Maj BJ, whose duty station also
was Travis Air Force Base, served as senior trial counsel in
Appellant’s case. Therefore, both Judge Rosenow and Maj BJ
traveled from their home duty station for temporary duty to
participate in Appellant’s court-martial.
Appellant’s court-martial involved two contested Article
120, Uniform Code of Military Justice (UCMJ), 1 specifica-
tions alleging that Appellant sexually assaulted his ex-wife
while they were married. During a Rule for Courts-Martial
(R.C.M.) 802 telephonic conference with the parties, Judge
Rosenow “outlined his previous interactions” with Maj BJ.
A. Judge Rosenow’s Friendship With
Senior Trial Counsel
Judge Rosenow and Maj BJ first met in 2012, but their
interactions were “limited” because although they were both
senior trial counsel they were assigned to different duty sta-
tions. However, after the two were stationed together as sen-
ior trial counsel beginning in mid-2014, they “became
friends.” This friendship included Maj BJ attending Judge
Rosenow’s bachelor party in New York City in April 2015 and
his wedding in June 2015.
Maj BJ became senior trial counsel at Travis Air Force
Base in 2015, and Judge Rosenow was stationed as a military
judge there in 2016. From the time they were both assigned
to Travis Air Force Base to the time of Appellant’s court-mar-
tial in 2018, Judge Rosenow and Maj BJ “hung out socially”
with their significant others “roughly four times,” and they
got together socially without their significant others once.
1 10 U.S.C. § 920 (2012).
2
United States v. Uribe, No. 20-0267/AF
Judgment of the Court
Further, although Maj BJ’s girlfriend and Judge Rosenow’s
wife were “more of acquaintances than friends,” Maj BJ’s girl-
friend was present for the birth of Judge Rosenow’s children
because Judge Rosenow was out of town when his wife went
into labor prematurely and the couple did not have any other
friends or family in the local area.
B. Recusal Motion and Ruling
The day before the defense filed a motion for recusal, Maj
BJ requested an R.C.M. 802 conference due to his “friendship”
with Judge Rosenow. Maj BJ cited both parties’ “concern[]
about the perception of fairness of the proceedings, not only
from the [Appellant’s] perspective … but also from an out-
sider[’s] as well.” During this conference, Maj BJ expressed
“his concern [with] the ‘optics’ of [Judge Rosenow] presiding
over a case where [Maj BJ] appeared as counsel.” Maj BJ also
expressed “sympathy for [Appellant’s] perspective in gen-
eral.” The next day the defense interviewed Maj BJ about his
relationship with Judge Rosenow.
The defense then moved to recuse Judge Rosenow from
Appellant’s court-martial because of his “personal relation-
ship” with Maj BJ. This relationship, the defense argued,
would undermine, “at least in part, public confidence in the
fairness of the trial.” The Government did not oppose this mo-
tion and agreed with the motion’s facts. Judge Rosenow “in-
terpreted [the Government’s position as] a joint request” for
recusal because otherwise he “would insufficiently weigh the
role the government took in raising the issue, the varying de-
scriptions of its concerns across time and the shared need for
both parties to receive a hearing free of doubts regarding the
military judge’s integrity and impartiality.” Nonetheless,
Judge Rosenow denied the parties’ joint request for recusal.
C. Court-Martial Proceedings
Following the recusal ruling, Appellant requested trial be-
fore a military judge alone, recognizing that Judge Rosenow
would preside over the court-martial. Appellant also entered
pleas of not guilty to the two Article 120, UCMJ, specifica-
tions. During the trial, Judge Rosenow ruled in the Govern-
ment’s favor on a defense Military Rule of Evidence (M.R.E.)
3
United States v. Uribe, No. 20-0267/AF
Judgment of the Court
404(b) objection, but also ruled in the defense’s favor by sus-
taining some defense objections and overruling Government
objections.
After hearing the evidence in this case, Judge Rosenow ac-
quitted Appellant of one sexual assault specification but con-
victed Appellant of a different sexual assault specification.
During the Government’s sentencing argument, assistant
trial counsel asked that Appellant be sentenced to a reduction
to E-1, a dishonorable discharge, and confinement for three
years. Judge Rosenow sentenced Appellant to a reduction to
E-1, a dishonorable discharge, confinement for twenty
months, and a reprimand. The convening authority approved
this sentence.
D. Court of Criminal Appeals
Appellant raised ten assignments of error at the United
States Air Force Court of Criminal Appeals (CCA), including
challenges to the military judge’s recusal ruling and M.R.E.
404(b) ruling, and challenges to the factual and legal suffi-
ciency of Appellant’s conviction. The CCA summarily con-
cluded that the M.R.E. 404(b) ruling did “not require further
discussion or warrant relief.” United States v. Uribe, No. ACM
39559, 2020 CCA LEXIS 119, at *3, 2020 WL 1896392, at *1
(A.F. Ct. Crim. App. Apr. 16, 2020) (unpublished). The CCA
also determined that the evidence was legally and factually
sufficient because there was “ample evidence to support Ap-
pellant’s conviction,” particularly Appellant’s “own words on
the recorded call[s]” effectively admitting to the misconduct.
Id. at *27, *30, 2020 WL 1896392, at *9, *10. Thus, the CCA
believed there was “compelling evidence of Appellant’s guilt.”
Id. at *30, 2020 WL 1896392, at *10. With respect to the
recusal issue, the CCA concluded that the military judge did
not abuse his discretion, but even assuming that he did, the
lower court concluded that reversal was not warranted under
the Supreme Court’s Liljeberg decision. Id. at *21–25, 2020
WL 1896392, at *7–9. Finding that none of the other issues
warranted relief, the CCA affirmed the findings and sentence.
Id. at *3, *50, 2020 WL 1896392, at *1, *18.
4
United States v. Uribe, No. 20-0267/AF
Judgment of the Court
II. Standard of Review
“Our review of a military judge’s disqualification decision
is for an abuse of discretion.” United States v. Sullivan,
74 M.J. 448, 453 (C.A.A.F. 2015). “A military judge’s ruling
constitutes an abuse of discretion if it is ‘arbitrary, fanciful,
clearly unreasonable or clearly erroneous,’ not if this Court
merely would reach a different conclusion.” Id. (quoting
United States v. Brown, 72 M.J. 359, 362 (C.A.A.F. 2013)).
III. Analysis
We conclude that the military judge abused his discretion
when he denied the parties’ joint recusal motion. However,
after balancing the Liljeberg factors, we determine that Ap-
pellant is not entitled to relief. Our reasons for each conclu-
sion are set forth below.
A. Recusal
1. Applicable Law
We have recognized that the validity of the military justice
system and the integrity of the court-martial process “de-
pend[] on the impartiality of military judges in fact and in ap-
pearance.” Hasan v. Gross, 71 M.J. 416, 419 (C.A.A.F. 2012)
(per curiam). Therefore, actual bias is not required; an ap-
pearance of bias is sufficient to disqualify a military judge.
See United States v. Norfleet, 53 M.J. 262, 270 (C.A.A.F.
2000). And in this appeal, the focus is indeed on the appear-
ance of bias.
“In the military context, the appearance of bias principle
is derived from R.C.M. 902(a) ….” Hasan, 71 M.J. at 418. This
rule provides: “[A] military judge shall disqualify himself or
herself in any proceeding in which that military judge’s im-
partiality might reasonably be questioned.” R.C.M. 902(a).
The test for identifying an appearance of bias is “whether a
reasonable person knowing all the circumstances would con-
clude that the military judge’s impartiality might reasonably
be questioned.” Sullivan, 74 M.J. at 453. This is “an objective
standard.” Id. “Recusal based on an appearance of bias ‘is in-
tended to promote public confidence in the integrity of the ju-
dicial process.’ ” Id. at 453–54 (internal quotation marks omit-
ted) (quoting Hasan, 71 M.J. at 418).
5
United States v. Uribe, No. 20-0267/AF
Judgment of the Court
“[T]his ‘appearance standard does not require judges to
live in an environment sealed off from the outside world.’ ” Id.
at 454 (quoting United States v. Butcher, 56 M.J. 87, 91
(C.A.A.F. 2001)). Indeed, “[p]ersonal relationships between
members of the judiciary and … participants in the court-
martial process do not necessarily require disqualification.”
Norfleet, 53 M.J. at 270. However, the existence of “a social
relationship creates special concerns which a professional re-
lationship does not.” United States v. Wright, 52 M.J. 136, 141
(C.A.A.F. 1999); see also Sullivan, 74 M.J. 454–55.
2. Discussion
In the instant case, the Government did not oppose the
defense recusal motion at trial. In fact, Maj BJ, the very per-
son whose relationship with the military judge was at issue,
informed Judge Rosenow: “[B]oth sides are simply concerned
about the perception of fairness of the proceedings, not only
from the Accused’s perspective …, but also from an out-
sider[’s] as well.” (Emphasis added.) This position led Judge
Rosenow to “interpret[] [the Government’s position] to mean
this is a joint request,” and in Sullivan we “caution[ed] mili-
tary judges to be especially circumspect in deciding whether
to disqualify themselves in such instances.” 74 M.J. at 455
(emphasis added). As we will explain, Judge Rosenow was not
“especially circumspect” when deciding the joint recusal mo-
tion concerning his friendship with Maj BJ.
To be sure, the world of career JAG Corps officers is rela-
tively small and cohesive, with professional relationships the
norm and friendships common. See Butcher, 56 M.J. at 91.
Typically, these relationships do not rise to the level where a
military judge must recuse himself or herself. Norfleet,
53 M.J. at 270; Wright, 52 M.J. at 141. Indeed, in examining
this issue we are mindful of the fact that “[t]he interplay of
social and professional relationships in the armed forces
poses particular challenges for the military judiciary.”
Butcher, 56 M.J. at 91. Therefore, the proper focus of our in-
quiry is whether the relationship between a military judge
and a party raises “special concerns,” Wright, 52 M.J. at 141
(emphasis added), whether the relationship was “so close or
unusual as to be problematic,” In re Hawsawi, 955 F.3d 152,
161 (D.C. Cir. 2020) (emphasis added), and/or whether “the
association exceeds what might reasonably be expected in light
6
United States v. Uribe, No. 20-0267/AF
Judgment of the Court
of the [normal] associational activities of an ordinary [mili-
tary] judge,” United States v. Murphy, 768 F.2d 1518, 1538
(7th Cir. 1985) (emphasis added) (citation omitted) (internal
quotation marks omitted).
As evidenced by the facts spelled out below, Judge
Rosenow failed to recognize that his friendship with Maj BJ
raised “special concerns.” Wright, 52 M.J. at 141.
• Judge Rosenow and Maj BJ met in 2012 when they
both served as senior trial counsel.
• In 2014, they were stationed together for approxi-
mately one year when they both served as senior trial
counsel. They had both a professional and a personal
relationship at that time.
• In April 2015, Maj BJ attended Judge Rosenow’s bach-
elor party. We underscore that this was not a large, lo-
cal affair where a number of JAG Corps members were
invited. Rather, the party was limited to fifteen to
twenty people, it was held in New York City, and the
trial counsel may have been the only Judge Advocate
Corps guest in attendance.
• In June 2015, the trial counsel attended Judge
Rosenow’s wedding.
• In mid-2016, Maj BJ and Judge Rosenow were sta-
tioned together. Despite the fact that Judge Rosenow
was now a military judge, he continued to personally
socialize with the trial counsel. In fact, Judge Rosenow
and his wife “hung out socially” as friends with Maj BJ
and his girlfriend four times, and Judge Rosenow and
Maj BJ went out together socially one additional time.
• In February 2017, Judge Rosenow’s wife went into la-
bor prematurely and she asked Maj BJ’s girlfriend to
attend the birth at the hospital because Judge
Rosenow was on temporary duty.
• In March 2018, Appellant’s court-martial began.
We conclude that Judge Rosenow misapprehended the law
in terms of the meaning and scope of R.C.M. 902(a) and the
7
United States v. Uribe, No. 20-0267/AF
Judgment of the Court
applicability of the rule to this particular case. 2 Further, the
fact that Judge Rosenow repeatedly personally socialized
with Maj BJ—despite the fact that they both were stationed
at the same air force base and Judge Rosenow was a military
judge and Maj B was a trial counsel—brings into question
Judge Rosenow’s ability to objectively assess the nature of his
relationship with Maj BJ.
First, Judge Rosenow characterized his social involvement
with Maj BJ as being “relatively limited … professionally and
socially.” However, the facts cited above, particularly Maj
BJ’s invitations to Judge Rosenow’s bachelor party and wed-
ding, suggest otherwise. As the Government appropriately
concedes, this “attendance at the military judge’s bachelor[]
party and wedding creates a closer call.” Brief for Appellee at
11, United States v. Uribe, No. 20-0267 (C.A.A.F. Sept. 4,
2020). Also, Judge Rosenow mistakenly believed that his re-
lationship with Maj BJ shared “commonality” with “so many
[other] relationships derived from shared uniform service.”
However, we conclude that his friendship with Maj BJ went
far beyond those typical “professional relationships” that we
have described as “not per se disqualifying.” Wright, 52 M.J.
at 141; see also infra note 3.
Second, Judge Rosenow noted that there was “deliberate
and increased separation” between the two of them after his
military judge assignment. However, this increased separa-
tion should have begun immediately upon Judge Rosenow’s
appointment as a military judge at the same air force base
where Maj BJ was stationed. Instead, during a time span of
less than two years Judge Rosenow and Maj BJ continued
their friendship by socializing with each other or their signif-
icant others (as compared to jointly attending larger profes-
sional social functions) a total of five times. Additionally, Maj
2 We recognize that in deciding this matter Judge Rosenow ref-
erenced R.C.M. 902(a) and reaffirmed his obligation to be impartial.
However, although this assurance is not irrelevant to the issue of
whether there was an appearance of bias, it is more relevant to the
issue of actual bias. See Wright, 52 M.J. at 141. Moreover, such an
assurance from a military judge is just one factor that an objective
observer would consider in determining whether that military
judge’s impartiality might reasonably be questioned.
8
United States v. Uribe, No. 20-0267/AF
Judgment of the Court
BJ’s girlfriend went to the hospital and was present for the
birth of Judge Rosenow’s children.
Third, although it is commendable that Judge Rosenow
placed on the record all the facts about the relationship, this
step did not erase the troubling nature of those facts.
And fourth, Judge Rosenow compared his friendship with
Maj BJ “against the relationships and behaviors recounted
in” a series of military justice cases and determined that “the
overwhelming balance of precedent support[ed]” his decision
not to recuse. However, upon close examination of the cited
authorities, we note that none involved a friendship similar
to the one between Judge Rosenow and Maj BJ. 3
3 Many of the cases cited by the military judge did not involve
friendships between a military judge and a court-martial partici-
pant. Those cases cited by the military judge that did involve such
friendships are easily distinguishable from Judge Rosenow’s per-
sonal relationship with Maj BJ. Compare Sullivan, 74 M.J. at 454–
55 (holding that military judge’s “professional and routine” rela-
tionships with those involved in court-martial did not require
recusal); Butcher, 56 M.J. at 92 (“assum[ing], without deciding, that
the military judge should have recused himself” when in the midst
of trial, he attended an informal farewell party for trial counsel and
he played tennis with trial counsel); Wright, 52 M.J. at 142 (holding
that recusal was not necessary based on military judge’s “past [pro-
fessional] relationship with” a law enforcement witness); United
States v. Sherrod, 26 M.J. 30, 31 & n.2 (C.M.A. 1988) (holding mil-
itary judge was disqualified where he lived next door to burglarized
home and his daughter was close friends with the victim daughter
of the burglary); United States v. Cron, 73 M.J. 718, 726–27 (A.F.
Ct. Crim. App. 2014) (finding no basis for recusal where military
judge and senior trial counsel were “ ‘Air Force friends’ ” but not
“close friends” in that “they had never been to each other’s houses,
they had never been stationed together …, [and] they had never
spent any time alone together or emailed each other privately”);
United States v. Berman, 28 M.J. 615, 616–18 (A.F.C.M.R. 1989)
(en banc) (series of recusal cases involving first a friendship and
then an intimate relationship between trial counsel and a military
judge in which the lower court held the military judge “was disqual-
ified”). The closest military justice case—United States v. Hamil-
ton—only involved the statement by a third party indicating that a
participant whose conduct was under review was “a good friend of
the two appellate military judges and may have played golf with
them on several occasions.” 41 M.J. 32, 38 (C.M.A. 1994) (emphasis
added). Appellant’s case is distinguishable because it involves a
9
United States v. Uribe, No. 20-0267/AF
Judgment of the Court
As can be seen then, Judge Rosenow and Maj BJ had
formed a close personal bond that transcended the routine
personal and professional relationships commonly found be-
tween a military judge and a party who appears before that
military judge. Therefore, based not only on the frequency of
their contact but also on the nature of the relationship, Judge
Rosenow abused his discretion when he denied the joint
recusal motion. Simply stated, granting this motion was nec-
essary in order to maintain public confidence in the integrity
and fairness of the military justice system because Judge
Rosenow’s impartiality in this case could “reasonably be ques-
tioned.” 4 R.C.M. 902(a). 5
B. Liljeberg Factors
1. Applicable Law
When a military judge abuses his discretion in denying a
recusal motion, we examine “whether, under Liljeberg, rever-
sal is warranted.” United States v. Martinez, 70 M.J. 154, 159
(C.A.A.F. 2011). “Because not every judicial disqualification
requires reversal,” the Liljeberg standard “determine[s]
whether a military judge’s conduct warrants that remedy to
military judge’s friendship with a party (R.C.M. 103(16)(B)) and in-
volves not speculation but undisputed agreement about the nature
of Maj BJ’s friendship with Judge Rosenow.
4 As noted above, Judge Rosenow was detailed from the trial
judiciary’s Western Circuit to preside over a case in the Central Cir-
cuit. The record does not disclose any operational necessity requir-
ing both Judge Rosenow and Maj BJ to continue participating in
the same court-martial. Presumably other military judges could
have replaced a recused Judge Rosenow.
5 We are not persuaded that Appellant’s decision to proceed to
trial by military judge alone following Judge Rosenow’s recusal rul-
ing weighs against Appellant. We note that this decision is “a legit-
imate tactical choice.” United States v. Cornett, 47 M.J. 128, 131
(C.A.A.F. 1997). This is so because “in order to avoid the hazards
connected with a highly emotional trial …, [an] appellant [may be]
willing to risk trial by (a ‘disqualified’) judge alone and hope[] that
he would receive a fair trial.” United States v. Sherrod, 22 M.J. 917,
922 (A.C.M.R. 1986), reversed on other grounds and reasoning
adopted by 26 M.J. at 32 n.5. Here, the record suggests that Appel-
lant’s forum selection was based on this tactical decision. Thus, Ap-
pellant was merely making the best of a bad bargain.
10
United States v. Uribe, No. 20-0267/AF
Judgment of the Court
vindicate public confidence in the military justice system.” Id.
at 158.
There are three Liljeberg factors. The first one examines
if there is “any specific injustice that [the appellant] person-
ally suffered.” Martinez, 70 M.J. at 159. The second Liljeberg
factor examines whether granting relief would “encourag[e] a
judge or litigant to more carefully examine possible grounds
for disqualification and to promptly disclose them when dis-
covered.” Liljeberg, 486 U.S. at 868. And the third Liljeberg
factor uses an “objective standard” by determining whether
“the circumstances of [a] case will risk undermining the pub-
lic’s confidence in the military justice system.” Martinez,
70 M.J. at 159. Although “similar to the standard applied in
the initial R.C.M. 902(a) analysis,” the third Liljeberg factor
“differs from the initial R.C.M. 902(a) inquiry” because it is
not “limit[ed] … to facts relevant to recusal, but rather re-
view[s] the entire proceedings, to include any post-trial pro-
ceeding, the convening authority action, the action of the
[CCA], or other facts relevant to the Liljeberg test.” Martinez,
70 M.J. at 160.
2. Discussion
We conclude that reversal is not required under the three
Liljeberg factors. For the first factor, Appellant has not iden-
tified any specific injustice he suffered at the hands of this
military judge. He points to a number of adverse rulings, but
the mere fact that the military judge adversely ruled on some
of Appellant’s motions and objections does not necessarily
demonstrate any risk of injustice.
Judge Rosenow’s rulings did not exhibit personal bias on
his part. And he did not rule uniformly in the Government’s
favor as he also sustained Appellant’s objections. Appellant
did not challenge most of Judge Rosenow’s adverse rulings on
appeal, and in regard to the one adverse ruling that Appellant
did challenge, the CCA determined that this issue was “non-
meritorious.” Uribe, 2020 CCA LEXIS 119, at *2–3, *23,
2020 WL 1896392, at *1, *8. The lower court also concluded
that no error materially prejudiced Appellant’s substantial
rights. Id. at *50, 2020 WL 1896392, at *18; see Marcavage v.
Bd. of Trs. of Temple Univ. of the Commonwealth Sys. of
Higher Educ., 232 F. App’x 79, 84 (3d Cir. 2007) (finding no
11
United States v. Uribe, No. 20-0267/AF
Judgment of the Court
risk of injustice when the trial judge’s rulings “were all cor-
rect” and there was “no prejudice … as a result of these rul-
ings”). Further, nothing in the record demonstrates that Maj
BJ sought to exploit his friendship with Judge Rosenow to ob-
tain a favorable outcome for the Government. In fact, the mil-
itary judge acquitted Appellant of one of the Article 120,
UCMJ, specifications. Cf. United States v. Elzy, 25 M.J. 416,
419 (C.M.A. 1988) (explaining there was no prejudice to ap-
pellant from military judge’s failure to recuse where “the mil-
itary judge acquitted appellant of one of the charges”). Fi-
nally, the Government’s case was strong with respect to the
remaining specification because its evidence included Appel-
lant’s recorded admission.
For the second factor, Appellant did not pursue this point
in his briefs and instead focused on the first and third
Liljeberg factors. Because Appellant has not presented any
argument on this point, we are convinced that it is “not nec-
essary to reverse the results of the present trial in order to
ensure that military judges exercise the appropriate degree of
discretion in the future.” Butcher, 56 M.J. at 93. Furthermore,
our conclusion that Judge Rosenow abused his discretion will
cause military judges in future cases to be appropriately
mindful of their obligations under R.C.M. 902. See Selkridge
v. United of Omaha Life Ins. Co., 360 F.3d 155, 171 (3d Cir.
2004) (“[O]ur determination that a violation of [the recusal
statute] occurred will provide virtually the same encourage-
ment to other judges and litigants as would a remand.”).
Finally, upon examination of the entire proceedings the
third Liljeberg factor favors affirming the court-martial
findings and sentence. As we noted above, Judge Rosenow
acquitted Appellant of one Article 120, UCMJ, specification,
which gives some assurance that an objective observer would
still have confidence in the military justice system. Also,
looking beyond the trial proceedings, we note that the CCA in
its factual and legal sufficiency review determined that there
was “compelling evidence” of Appellant’s guilt, and we agree.
Uribe, 2020 CCA LEXIS 119, at *30, 2020 WL 1896392, at
*10. The lower court also found no merit in Appellant’s other
challenges to the court-martial proceedings. Id. at *2–3; 2020
WL 1896392, at *1. Further, in affirming the sentence, the
CCA necessarily determined that the sentence was legally
12
United States v. Uribe, No. 20-0267/AF
Judgment of the Court
correct and appropriate. See Article 66(c), UCMJ, 10 U.S.C.
§ 866(c) (2012). A decision to affirm the findings and sentence
under these circumstances would not upset public confidence
in the judicial process. To the contrary, a decision to reverse
the findings and sentence would increase the risk “that the
public will lose faith in the judicial system.” United States v.
Cerceda, 172 F.3d 806, 815 (11th Cir. 1999) (en banc) (per
curiam).
IV. Judgment
Although we reach a different conclusion than the CCA
with respect to the military judge’s recusal ruling, we agree
with the lower court that Appellant is not entitled to relief
under the Liljeberg factors. Accordingly, we affirm the
judgment of the United States Air Force Court of Criminal
Appeals.
13
United States v. Uribe, No. 20-0267/AF
Judge MAGGS, with whom Senior Judge CRAWFORD
joins, concurring in the judgment.
Rule for Courts-Martial (R.C.M.) 902 addresses the dis-
qualification of military judges. The drafters of this provision
sensibly recognized that there are certain specific circum-
stances that always require a military judge’s disqualifica-
tion. In R.C.M. 902(b), the drafters listed five such circum-
stances, which include situations in which the military judge
previously acted as a counsel in the case, where the military
judge will be a witness, where the military judge is closely
related to a party, and so forth. The drafters of R.C.M. 902
also wisely understood that there might be other situations
requiring disqualification that they could not capture with
specific rules. They chose to deal with these other circum-
stances in R.C.M. 902(a) with an open-ended test that a mili-
tary judge also “shall disqualify himself or herself in any pro-
ceeding in which that military judge’s impartiality might
reasonably be questioned.”
One aspect of R.C.M. 902(a) is especially notable. The pro-
vision requires the military judge, not the parties or other
judges, to decide whether the military judge should “disqual-
ify himself or herself.” The military judge must have discre-
tion in making this decision because in many situations, fair-
minded observers might differ in their assessment of whether
a military judge’s impartiality “might reasonably be ques-
tioned.” Appellate courts are therefore limited to considering
whether the military judge committed an abuse of discretion
in making the choice. See United States v. Humpherys, 57
M.J. 83, 88 (C.A.A.F. 2002).
Two important principles guide us when we consider
whether a military judge has committed an abuse of
discretion in deciding not to disqualify himself or herself
under R.C.M. 902(a). First, “[t]here is a strong presumption
that a judge is impartial.” United States v. Quintanilla, 56
M.J. 37, 44 (C.A.A.F. 2001) (citation omitted). Second, a
military judge “has as much obligation not to . . . [disqualify]
himself when there is no reason to do so as he does to . . .
[disqualify] himself when the converse is true.” United States
v. Kincheloe, 14 M.J. 40, 50 n.14 (C.M.A. 1982) (internal
United States v. Uribe, No. 20-0267/AF
Judge MAGGS, concurring the judgment
quotation marks omitted) (quoting United States v. Bray, 546
F.2d 851, 857 (10th Cir. 1976).
In this case, I agree with the United States Air Force
Court of Criminal Appeals (AFCCA) that the military judge
did not abuse his discretion in concluding that, once all the
facts and circumstances were known, there was no ground
upon which his “impartiality might reasonably be ques-
tioned.” United States v. Uribe, No. ACM 39559, 2020 CCA
LEXIS 119, at *20–22, 2020 WL 1896392, at *7 (A.F. Ct.
Crim. App. Apr. 16, 2020) (unpublished). The military judge
therefore did not err in denying Appellant’s motion for dis-
qualification under R.C.M. 902(a). I would affirm the
AFCCA’s decision on this ground and would not reach the is-
sue of prejudice.
I. Abuse of Discretion Review
A military judge abuses his discretion (1) “when his
findings of fact are clearly erroneous,” or (2) when the military
judge’s “decision is influenced by an erroneous view of the
law,” or (3) when “the military judge’s decision on the issue at
hand is outside the range of choices reasonably arising from
the applicable facts and the law.” United States v. Miller, 66
M.J. 306, 307 (C.A.A.F. 2008) (citations omitted). To find an
abuse of discretion under the last of these tests, this Court
has required “more than a mere difference of opinion”; rather,
the military judge’s ruling “must be arbitrary, fanciful, clearly
unreasonable or clearly erroneous.” United States v. Collier,
67 M.J. 347, 353 (C.A.A.F. 2009) (internal quotation marks
omitted) (citations omitted). In this case, applying this
deferential standard of review, the military judge did not
abuse his discretion in ruling on the disqualification motion.
As described below, the military judge did not make any
clearly erroneous findings of fact, did not misapprehend the
law, and did not make unreasonable choices in applying the
law to the facts.
A. The Military Judge’s Findings of Fact
The military judge made thorough findings of fact in his
written ruling on the disqualification motion. These findings
fall into three categories. First, the military judge adopted the
facts stated in an appendix to Appellant’s motion. This
appendix recorded “every professional and social interaction
2
United States v. Uribe, No. 20-0267/AF
Judge MAGGS, concurring the judgment
of substance between the senior trial counsel . . . and [the]
military judge since their introduction [to each other] in
2012.” Second, based on his personal knowledge, the military
judge found “additional facts clarifying details” about the
interactions described in the attachment. Third, also based on
his personal knowledge, the military judge found additional
facts about his past military assignments and how he was
detailed to the court-martial in question. In this appeal,
neither Appellant nor the Government argues that any of
these findings of fact are clearly erroneous. Accordingly, the
military judge’s findings of fact in this case provide no basis
for concluding that he abused his discretion in denying the
disqualification motion.
B. The Military Judge’s Understanding of the Law
In his written ruling on the disqualification motion, the
military judge stated the pertinent principles of law in
eighteen detailed paragraphs. In these paragraphs, the
military judge described the burden of proof, the accused’s
constitutional right to an impartial judge, and the specific
requirements of R.C.M. 902. The military judge quoted
R.C.M. 902(a), and noted that this provision tracks the
language of 28 U.S.C. § 455(a). The military judge also quoted
R.C.M. 902(b)(1), which requires a military judge to recuse
himself if the military judge has any “personal bias or
prejudice concerning a party or personal knowledge of
disputed evidentiary facts.” In addition, the military judge
quoted and discussed numerous precedents of this Court on
the issue of disqualification. Neither Appellant nor the
Government contends that the military judge stated any
principles of law incorrectly or that he was influenced by an
erroneous view of the law. Indeed, Appellant and the
Government largely cite the same sources in their briefs to
this Court. Accordingly, the military judge’s view of the law
also provides no basis for concluding that he abused his
discretion in denying the disqualification motion.
C. The Military Judge’s Application of the Law
Given that the military judge did not make findings of fact
that were clearly erroneous and that the military judge was
not influenced by an erroneous view of the law, the military
judge could have abused his discretion only if “the military
3
United States v. Uribe, No. 20-0267/AF
Judge MAGGS, concurring the judgment
judge’s decision on the issue at hand is outside the range of
choices reasonably arising from the applicable facts and the
law.” Miller, 66 M.J. at 307. Appellant presents three argu-
ments for concluding that the military judge indeed made
such an unreasonable choice. In my view, however, none of
these three arguments has merit.
First, Appellant argues that this case is distinguishable
from prior cases in which this Court or the AFCCA deter-
mined that the routine professional relationship between a
military judge and counsel did not require the military judge
to recuse himself. See, e.g., United States v. Sullivan, 74 M.J.
448 (C.A.A.F. 2015); United States v. Cron, 73 M.J. 718 (A.F.
Ct. Crim. App. 2014). In support of this contention, Appellant
cites four key facts: (1) the senior trial counsel attended the
military judge’s out-of-town bachelor party; (2) the senior trial
counsel attended the military judge’s wedding; (3) the senior
trial counsel’s girlfriend went to the hospital and was present
with the military judge’s wife during the birth of their chil-
dren; and (4) the military judge and the senior trial counsel
personally socialized approximately four times with their sig-
nificant others and once without their significant others dur-
ing a two-year period before the court-martial.
These four facts, however, do not make the military
judge’s ruling under R.C.M. 902(a) “outside the range of
choices reasonably arising from the applicable facts and the
law.” Miller, 66 M.J. at 307. As the Government points out,
the bachelor party and the wedding took place about three
years before the court-martial and well before the military
judge had become a judge. Based on the timing of the events,
the military judge reasonably could conclude that they would
not cause members of the public to reasonably question his
impartiality at the court-martial. See Sullivan, 74 M.J. at 454
(concluding that social interactions that had “occurred years
prior to the court-martial” did not require disqualification). In
addition, the undisputed finding of fact was that the presence
of the senior trial counsel’s girlfriend at the birth of the mili-
tary judge’s children was unplanned. The military judge was
out of town on temporary duty when his wife prematurely
went into labor. His wife asked the senior trial counsel’s girl-
friend for assistance because she did not know anyone else in
the area to call. The military judge could reasonably conclude
4
United States v. Uribe, No. 20-0267/AF
Judge MAGGS, concurring the judgment
that members of the public would not reasonably question his
impartiality based on the extraordinary circumstances that
led to this unplanned interaction between the senior trial
counsel’s girlfriend and the military judge’s wife.
Finally, the military judge also could reasonably conclude
that the few social interactions between him and the senior
trial counsel, that took place at times removed from the court-
martial, did not reasonably call his impartiality into question.
We have not adopted a per se rule preventing social interac-
tions between military judges and counsel. On the contrary,
in Sullivan, we held that a military judge did not have to dis-
qualify himself even though he had relationships with the ap-
pellant and military defense counsel that included a “social
component.” 74 M.J. at 454. Other jurisdictions follow similar
rules. For example, the United States Court of Appeals for the
Seventh Circuit stated:
In today’s legal culture friendships among judges
and lawyers are common. They are more than com-
mon; they are desirable. A judge need not cut himself
off from the rest of the legal community. Social as
well as official communications among judges and
lawyers may improve the quality of legal decisions.
Social interactions also make service on the bench,
quite isolated as a rule, more tolerable to judges.
Many well-qualified people would hesitate to become
judges if they knew that wearing the robe meant ei-
ther discharging one’s friends or risking disqualifi-
cation in substantial numbers of cases. Many courts
therefore have held that a judge need not disqualify
himself just because a friend—even a close friend—
appears—as a lawyer.
United States v. Murphy, 768 F.2d 1518, 1537 (7th Cir. 1985)
(citing, inter alia, In re United States, 666 F.2d 690 (1st Cir.
1981)); see also United States v. Butcher, 56 M.J. 87, 91
(C.A.A.F. 2001) (recognizing that throughout a military ca-
reer, a military judge, like any other officer, “is likely to de-
velop numerous friendships as well as patterns of social ac-
tivity” that “transcend normal duty hours”).
To be sure, military judges and counsel must be sensitive
to appearances at all times, and should limit social interac-
tions at times when judicial business is pending. See Butcher,
56 M.J. at 91─92 (assuming without deciding that a military
5
United States v. Uribe, No. 20-0267/AF
Judge MAGGS, concurring the judgment
judge should have disqualified himself after attending a party
with trial counsel and playing tennis together on the eve of
the court-martial). But the military judge reasonably could
conclude in this case that the four unremarkable social inter-
actions between him and the senior trial counsel, over a two-
year period before trial, did not cross the line.
Second, Appellant argues that the military judge made an
unreasonable choice because the Government did not oppose
Appellant’s disqualification motion. Appellant quotes our de-
cision in Sullivan, which involved a joint motion for disquali-
fication. This Court stated that a “ ‘disinterested observer
would have noted that the government joined the [accused’s]
motions for recusal—a very unusual development demon-
strating that all parties were seriously concerned about the
appearance of partiality.’ ” Sullivan, 74 M.J. at 455 (quoting
United States v. Amico, 486 F.3d 764, 776 (2d Cir. 2007)). In
Sullivan, however, we did not announce a per se rule that a
military judge must recuse himself if both parties ask for dis-
qualification. Indeed, we did not even require disqualification
in that case. Id. A per se rule requiring disqualification when-
ever both parties request it would be contrary to R.C.M.
902(a)’s provision that the military judge makes the disqual-
ification decision. In this case, the military judge was well
aware of the Government’s position, and he considered our
statement in Sullivan about joint motions in his ruling. The
choice that the military judge made was not unreasonable,
even though both parties supported disqualification, because
the facts did not provide any reasonable ground for question-
ing his impartiality.
Third, Appellant argues that the military judge incor-
rectly “focused more on whether he was actually biased in-
stead of whether there was the appearance of bias.” I agree
that misapprehending the grounds on which disqualification
is requested could very well lead to a decision outside the
range of reasonable choices. In this case, however, Appellant’s
contention finds no support in the military judge’s ruling. The
military judge in this case understood that the Appellant was
seeking disqualification on grounds that the public might rea-
sonably question his impartiality and he specifically noted
that actual personal bias, prejudice, or knowledge of disputed
6
United States v. Uribe, No. 20-0267/AF
Judge MAGGS, concurring the judgment
facts was “not raised as a basis for disqualification by either
party.”
II. Conclusion
When ruling on the motion to recuse himself, the military
judge did not make any clearly erroneous findings of fact, he
did not have an erroneous view of the law, and his application
of the law to the facts was not unreasonable given all the cir-
cumstances. Accordingly, I agree with the AFCCA that the
military judge did not abuse his discretion, and would affirm
the AFCCA’s decision on that ground.
7
United States v. Uribe, No. 20-0267/AF
Chief Judge STUCKY, concurring in part and dissenting
in part.
“Judges, like Caesar’s wife, should always be above suspi-
cion. An impartial and disinterested trial judge is the founda-
tion on which the military justice system rests, and avoiding
the appearance of impropriety is as important as avoiding im-
propriety itself.” United States v. Berman, 28 M.J. 615, 616
(A.F.C.M.R. 1989). I concur with the majority’s conclusion
that the military judge abused his discretion in refusing to
recuse himself but respectfully dissent from the majority’s
holding that Appellant is not entitled to relief.
In Liljeberg v. Health Servs. Acquisition Corp., the Su-
preme Court established a test for evaluating prejudice when
a judge who is disqualified under 28 U.S.C. § 455(a) fails to
recuse himself. 486 U.S. 847, 862, 864 (1988). Courts examine
three factors: “the risk of injustice to the parties in the partic-
ular case, the risk that the denial of relief will produce injus-
tice in other cases, and the risk of undermining the public’s
confidence in the judicial process.” Id. at 864. But to this test,
the Supreme Court added a caveat: “We must continuously
bear in mind that to perform its high function in the best way
justice must satisfy the appearance of justice.” Id. (internal
quotation marks omitted) (citation omitted).
Judge Rosenow was disqualified under Rule for Courts-
Martial (R.C.M.) 902(a). As that rule is based on 28 U.S.C.
§ 455(a),1 this Court has applied the three Liljeberg factors in
evaluating prejudice in military disqualification and recusal
cases. See United States v. Witt, 75 M.J. 380, 384–85 (C.A.A.F.
2016); United States v. McIlwain, 66 M.J. 312, 315 (C.A.A.F.
2008).
The Supreme Court did not fully explain in Liljeberg how
to apply the three-factor test. In United States v. Martinez,
this Court tried to clarify the first factor, equating it to
whether the record supported, or the appellant had
“identified[,] any specific injustice that he personally suffered
under the circumstances.” 70 M.J. 154, 159 (C.A.A.F. 2011).
Although I joined the majority in Martinez, after rereading
1 Manual for Courts-Martial, United States, Analysis of the
Rules for Courts-Martial app. 21 at A21-50 (2016 ed.).
United States v. Uribe, No. 20-0267/AF
Chief Judge STUCKY, concurring in part and dissenting in part
Liljeberg, I now find that explanation contrary to the plain
language employed by the Supreme Court. The issue is not
whether there was error or injustice but whether there was
“the risk of injustice to the parties.” Liljeberg, 486 U.S. at 864(emphasis added).
I find the United States Court of Appeals for the Seventh
Circuit’s explanation of the first factor more persuasive. That
court starts with the potential for injustice the accused may
suffer in upholding the conviction by looking at whether the
trial judge’s personal bias could have influenced the court’s
discretionary rulings. United States v. Orr, 969 F.3d 732, 741
(7th Cir. 2020). It then balances that risk against the risk of
injustice to the government if a new trial is ordered, which is
determined by examining the time, money, and resources that
would have to be diverted from other cases. Id.The Seventh Circuit’s explanation is consistent with the
plain language of the Liljeberg test and makes sense. Rulings
on discretionary issues have the most potential for injustice
in disqualification cases because they are reviewed by appel-
late courts for an abuse of discretion, granting great deference
to the disqualified judge’s decisions. Cases in which the dis-
qualified judge is required to assess the credibility of wit-
nesses also have a high potential for injustice. See id. at 739–
41. The risk is amplified in judge-alone trials, where the judge
is required to determine an accused’s guilt as well as exercise
his broad discretion in adjudging the sentence. See id. at 739.
There was significant risk of injustice to Appellant in this
case, as the military judge was required to make important
discretionary rulings. Judge Rosenow was called upon to rule
on defense motions to (1) admit, under exceptions to Military
Rule of Evidence (M.R.E.) 412, evidence of the alleged victim’s
past consent to participate in the types of sexual acts for
which he was charged; and (2) exclude evidence of Appellant’s
other acts under M.R.E. 404(b). Judge Rosenow granted in
part and denied in part both motions. United States v. Uribe,
No. ACM 39559, 2020 CCA LEXIS 119, at *2, 2020 WL
1896392, at *1 (A.F. Ct. Crim. App. Apr. 16, 2020)
(unpublished).
More importantly, this was a judge-alone trial. Thus,
Judge Rosenow was required to assess the credibility of the
2
United States v. Uribe, No. 20-0267/AF
Chief Judge STUCKY, concurring in part and dissenting in part
witnesses, determine whether Appellant was guilty and, after
finding him guilty, exercise his broad discretion in selecting
an appropriate sentence. In this case that ranged from no con-
finement and a dishonorable discharge to a dishonorable dis-
charge and confinement for thirty years. The defense counsel
argued that Appellant did not represent a threat to the com-
munity and, therefore, should not be incarcerated. Neverthe-
less, the military judge sentenced Appellant to a dishonorable
discharge, confinement for twenty months, reduction to the
grade of E-1, and a reprimand.
On the other hand, the risk of injustice to the Government
is very low. This was neither a long nor complicated trial. Ap-
pellant was charged with two specifications of sexually as-
saulting the same victim. The prosecution called few wit-
nesses and, after excluding the sessions devoted to resolving
motions, the record is not lengthy. A significant amount of
time, money, and resources would not be required to retry Ap-
pellant. Although not specifically included in the Orr formu-
lation of this factor, I have also considered the effect of requir-
ing Appellant’s wife to testify again. After balancing the two
sides, I conclude that the first factor favors Appellant.
The second Liljeberg factor invites the Court to consider
the risk that denial of relief would produce injustice in other
cases. The Supreme Court did not explain this factor further,
but in deciding Liljeberg, the Court seemed to invert its ap-
plication. Rather than finding that the denial of relief would
produce injustice in other cases, the Supreme Court found
that “providing relief in cases such as this will not produce
injustice in other cases.” 486 U.S. at 868. Nevertheless, under
the plain language of the second factor the risk of prejudice in
other cases is very low, as it is doubtful Judge Rosenow will
preside over other cases in which his friend is the prosecutor.
Thus, this factor appears to favor the Government.
The third Liljeberg factor favors Appellant, as the military
judge’s social friendship with the prosecutor is precisely the
appearance of impropriety that R.C.M. 902(a) was meant to
prevent. In this case, a senior trial counsel was sent from a
different circuit to Joint Base San Antonio to prosecute Ap-
pellant. After the chief judge of the circuit arraigned Appel-
lant, he detailed a different military judge from a different
circuit to preside over Appellant’s court-martial. Of all the
3
United States v. Uribe, No. 20-0267/AF
Chief Judge STUCKY, concurring in part and dissenting in part
military judges in the Air Force, he detailed the senior trial
counsel’s friend. During Appellant’s trial, the military judge
was called upon to make several discretionary rulings to
which appellate courts would defer to his judgment, most im-
portantly the findings and the sentence.
Under these circumstances, I conclude that Judge
Rosenow’s refusal to recuse himself prejudiced Appellant’s
substantial rights. He failed in his primary duty: to “serve as
the independent check on the integrity of the court-martial
process.” Hasan v. Gross, 71 M.J. 416, 418–19 (C.A.A.F.
2012). Affirming Appellant’s convictions and sentence does
not satisfy the Liljeberg factors or the appearance of justice.
Therefore, I would set aside the findings and sentence with-
out prejudice.
4