United States v. Armstrong ( 2024 )

This opinion is subject to revision before publication.
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Allan L. ARMSTRONG, Master Sergeant
United States Army, Appellant
No. 24-0002
Crim. App. No. 20210644
Argued April 16, 2024—Decided July 26, 2024
Military Judge: Jacqueline L. Emanuel
For Appellant: Captain Rachel M. Rose (argued);
Colonel Philip M. Staten, Lieutenant Colonel Au-
tumn R. Porter, Major Robert W. Rodriguez, and
Jonathan F. Potter, Esq. (on brief).
For Appellee: Captain Alex J. Berkun (argued); Colo-
nel Christopher B. Burgess, Colonel Jacqueline J.
DeGaine, and Lieutenant Colonel Kalin P. Schlueter
(on brief); Major Chase C. Cleveland.
Judge JOHNSON delivered the opinion of the Court,
in which Chief Judge OHLSON, Judge SPARKS,
Judge MAGGS, and Judge HARDY joined.
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United States v. Armstrong, No. 24-0002/AR
Opinion of the Court
Judge JOHNSON delivered the opinion of the Court.
I. Background
During Appellant’s general court-martial, consisting of
a panel with enlisted representation, defense counsel mo-
tioned for the military judge to recuse herself on the basis
of actual and apparent bias. The military judge denied de-
fense counsel’s motion. Appellant was convicted of sexual
assault under Article 120, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 920 (2018), and sentenced to seven
years of confinement, a reprimand, reduction to the grade
of E-1, forfeiture of all pay and allowances, and a dishonor-
able discharge. The United States Army Court of Criminal
Appeals summarily affirmed the findings and sentence.
United States v. Armstrong, No. ARMY 20210644, 2023
CCA LEXIS 340, at *1 (A. Ct. Crim. App. Aug. 2, 2023) (per
curiam). Upon examination of the petition for grant of re-
view, which described some of the exchanges between the
military judge and defense counsel during the trial, we
granted review of the following issue:
Whether the military judge’s departure from im-
partiality deprived Appellant of his right to a fair
trial.
United States v. Armstrong, 84 M.J. 145, 145 (C.A.A.F.
2023) (order granting review). At oral argument, Appellant
asserted that he was only challenging the military judge’s
impartiality based on the appearance of bias, not actual
bias. We conclude that the military judge’s impartiality
could not reasonably be questioned and that Appellant was
not deprived of his right to a fair trial. Thus, we answer the
granted issue in the negative.
II. Law
A military judge should be disqualified if there is an ap-
pearance of bias. United States v. Uribe, 80 M.J. 442, 446
(C.A.A.F. 2021). “In the military context, the appearance of
bias principle is derived from [Rules for Courts-Martial
(R.C.M.)] 902(a).” Hasan v. Gross, 71 M.J. 416, 418
(C.A.A.F. 2012). R.C.M. 902(a) (2019 ed.), provides that “a
military judge shall disqualify himself or herself in any
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Opinion of the Court
proceeding in which that military judge’s impartiality
might reasonably be questioned.” This Court uses “an ob-
jective standard for identifying an appearance of bias by
asking whether a reasonable person knowing all the cir-
cumstances would conclude that the military judge’s im-
partiality might reasonably be questioned.” United States
v. Sullivan, 74 M.J. 448, 453 (C.A.A.F. 2015); see also
Uribe, 80 M.J. at 446.
For an appearance of bias claim, this Court reviews a
military judge’s decision to not recuse under an abuse of
discretion standard, considering the facts and
circumstances using an objective standard. United States
v. Butcher, 56 M.J. 87, 91 (C.A.A.F. 2001). “ ‘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.’ ” Uribe, 80 M.J. at 446 (internal quotation
marks omitted) (quoting Sullivan, 74 M.J. at 453). “There
is a strong presumption that a judge is impartial, and a
party seeking to demonstrate bias must overcome a high
hurdle, particularly when the alleged bias involves actions
taken in conjunction with judicial proceedings.” United
States v. Quintanilla, 56 M.J. 37, 44 (C.A.A.F. 2001). A
military judge “ ‘must avoid undue interference with the
parties’ presentations or the appearance of partiality.’ ” Id.
at 43 (quoting R.C.M. 801(a)(3) Discussion). Additionally,
as explained by the Supreme Court:
[J]udicial remarks during the course of a trial that
are critical or disapproving of, or even hostile to,
counsel, the parties, or their cases, ordinarily do
not support a bias or partiality challenge. . . .
[T]hey will do so if they reveal such a high degree
of favoritism or antagonism as to make fair judg-
ment impossible.
Liteky v. United States, 510 U.S. 540, 555 (1994).
If a military judge erroneously decided to not recuse be-
cause of an appearance of bias, this Court analyzes three
factors established in the Supreme Court’s decision in
Liljeberg v. Health Services Acquisition Corp., 486 U.S. 8473
United States v. Armstrong, No. 24-0002/AR
Opinion of the Court
(1988), to determine whether reversal is warranted. Uribe,
80 M.J. at 449; United States v. Martinez, 70 M.J. 154, 159
(C.A.A.F. 2011). Those factors are “[1] the risk of injustice
to the parties in the particular case, [2] the risk that the
denial of relief will produce injustice in other cases, and [3]
the risk of undermining the public’s confidence in the judi-
cial process.” Liljeberg, 486 U.S. at 864.
III. Discussion
To determine whether the military judge abused her
discretion when she denied defense counsel’s motion for her
recusal, we must decide “whether a reasonable person
knowing all the circumstances would conclude that the
military judge’s impartiality might reasonably be
questioned.” Sullivan, 74 M.J. at 453. If so, we must then
determine whether reversal is warranted for such an abuse
of discretion.
We hold that the military judge did not abuse her dis-
cretion when she denied Appellant’s motion to recuse her-
self because “a reasonable person knowing all the circum-
stances would [not] conclude that the military judge’s
impartiality might be reasonably questioned.” Id. In our
examination of the written record and audio recording of
the court-martial proceedings, we noted the following: first,
many of the interactions between the military judge and
defense counsel that are at issue occurred outside the pres-
ence of the panel; second, the interactions were “actions
taken in conjunction with judicial proceedings,” Quinta-
nilla, 56 M.J. at 44; and third, the military judge used a
measured tone during the exchanges with defense counsel
at issue in this case. 1 Considering the interactions in the
context of the courtroom dynamics as a whole, although
there were tense moments between the military judge and
defense counsel, the military judge “ ‘avoid[ed] undue in-
terference with the parties’ presentations [and] the appear-
ance of partiality.’ ” Id. at 43 (quoting R.C.M. 801(a)(3)
1 We also note that at times the civilian defense counsel was
discourteous to the military judge and that the military judge
acknowledged that she needed to work on her patience.
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Opinion of the Court
Discussion). Additionally, even if the military judge made
a poor choice of words at times, “judicial remarks during
the course of a trial that are critical or disapproving of, or
even hostile to, counsel, the parties, or their cases, ordinar-
ily do not support a bias or partiality challenge.” Liteky,
510 U.S. at 555. In this case, the military judge’s remarks
do not “reveal such a high degree of favoritism or antago-
nism as to make fair judgment impossible.” Id. Therefore,
we hold in this case that “a reasonable person knowing all
the circumstances would [not] conclude that the military
judge’s impartiality might reasonably be questioned.” Sul-
livan, 74 M.J. at 453. Thus, Appellant was not deprived of
his right to a fair trial. Accordingly, because the military
judge did not abuse her discretion in denying defense coun-
sel’s recusal motion, we need not analyze whether her de-
cision warrants reversal.
IV. Conclusion
The decision of the United States Army Court of Crimi-
nal Appeals is affirmed.
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