United States v. Hickerson ( 2014 )

UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
J.A. FISCHER, R.Q. WARD, K.M. MCDONALD
Appellate Military Judges
UNITED STATES OF AMERICA
v.
BRIAN P. HICKERSON
STAFF SERGEANT (E-6), U.S. MARINE CORPS
NMCCA 201100111
GENERAL COURT-MARTIAL
Sentence Adjudged: 12 May 2011.
Military Judge: LtCol Robert Palmer, USMC.
Convening Authority: Commanding General, Marine Corps
Recruit Depot/Eastern Recruiting Region, Parris Island, SC.
Staff Judge Advocate's Recommendation: Col E.R. Kleis,
USMC.
For Appellant: LT Jessica Ford, JAGC, USN.
For Appellee: Capt Cory Carver, USMC.
4 December 2014
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OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.
PER CURIAM:
A panel of members with enlisted representation sitting as
a general court-martial convicted the appellant, contrary to his
pleas, of one specification of transferring obscene material
over the Internet, one specification of attempting to entice a
minor to engage in illegal sexual activity, two specifications
of possessing child pornography, and one specification of
receiving child pornography, all in violation of Article 134,
Uniform Code of Military Justice, 10 U.S.C. § 934. The members
sentenced the appellant to confinement for 20 years, reduction
to pay grade E-1, forfeiture of all pay and allowances for 20
years, and a dishonorable discharge from the U.S. Marine Corps.
The convening authority approved the sentence as adjudged.
In his initial appeal before this court, the appellant
raised eight assignments of error (AOE). 1 After consideration of
the pleadings of the parties, the record of trial, and oral
argument, we affirmed the findings of guilty and sentence.
Arts. 59(a) and 66(c), UCMJ. This case is now before us on
remand for reconsideration in light of certain remarks made by
the military judge approximately thirteen months after the
appellant’s trial concluded.
Background
This is one of a number of cases concerning an allegation
of judicial bias stemming from the military judge’s remarks
during a Professional Military Education (PME) lecture he gave
to Marine student judge advocates on 21 June 2012. After the
appellant raised the issue inter alia in his petition to the
Court of Appeals for the Armed Forces (CAAF) for review of our
initial decision, the CAAF granted review solely on his
1
The appellant raised the following AOEs in his initial appeal:
1) The guilty findings for all child pornography offenses are legally
insufficient because the Government failed to introduce evidence that 18
U.S.C. § 2252A existed at the time of the appellant’s offenses;
2) The specification alleging an attempt to entice a minor to engage in
illegal sexual activity fails to state an offense by not expressly alleging
an underlying state statute criminalizing the activity;
3) The military judge erred when he admitted over defense objection
evidence of uncharged misconduct from the appellant’s statements to Naval
Criminal Investigative Service;
4) The military judge erred where he admitted over defense objection
evidence of uncharged misconduct where the appellant, while chatting online
with adults, discusses committing sexual acts with minors;
5) The trial counsel made an unduly inflammatory sentencing argument;
6) The guilty finding for the offense of attempt to entice a minor to
engage in illegal sexual activity is factually insufficient;
7) The military judge erred by refusing to instruct the members on the
defense of voluntary abandonment; and
8) The military judge erred in admitting derivative evidence from an
illegal pretextual telephone call.
AOEs 6-8 were raised pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982). We adopt and incorporate herein those portions of our earlier
decision addressing these AOEs and similarly decline to grant relief. United
States v. Clifton, 35 M.J. 79 (C.M.A. 1992).
2
allegation of judicial bias. United States v. Hickerson, 72
M.J. 159 (C.A.A.F. 2013). The CAAF later set aside our decision
and returned the case to the Judge Advocate General of the Navy
for remand to this court for further consideration in light of
our decision in United States v. Kish. 2 United States v.
Hickerson, 73 M.J. 53 (C.A.A.F. 2013). After reviewing the
DuBay record in Kish, we concluded that the military judge “was
voicing not his own biases or prejudices, but instead a mindset
that he believes a junior counsel must adopt to be a tenacious
and zealous advocate.” United States v. Kish, 2014 CCA LEXIS
358 at *38-39 (Kish II). We further concluded that the military
judge was not actually biased against accused service members
within the meaning of RULE FOR COURTS-MARTIAL 902(b), MANUAL FOR COURTS-
MARTIAL, UNITED STATES (2012 ed.). Id. We adopt our findings of
fact and conclusions from Kish II for purposes of this appeal.
In his current appeal before this court, the appellant
argues that he was deprived of his constitutional right to an
impartial judge. Citing actual and apparent bias, he urges us
to set aside the guilty findings and sentence. Appellant’s
Supplemental Brief and Assignment of Error of 31 July 2014. He
further contends that we erred in Kish II by concluding that the
military judge’s comments did not reflect an actual bias.
Rather, he argues, these comments and their close temporal
proximity to the military judge presiding at the appellant’s
trial demonstrate actual bias. Id. at 13. We disagree.
Disqualification of Military Judge
“‘An accused has the right to an impartial judge.’”
United States v. Martinez, 70 M.J. 154, 157 (C.A.A.F. 2011)
(quoting United States v. Butcher, 56 M.J. 87, 90 (C.A.A.F.
2001)). There is a “strong presumption that a [military] judge
is impartial.” United States v. Quintanilla, 56 M.J. 37, 44
(C.A.A.F. 2001). We review whether a military judge has acted
appropriately de novo. 3
2
In Kish, the CAAF ordered a hearing pursuant to United States v. DuBay, 17
M.J. 147 (C.M.A. 1967), to “make findings of fact and conclusions of law
related to what, if any, statements the military judge made on or about 21
June 2012 at a Professional Military Education meeting with junior officers
regarding the practice of military justice.” United States v. Kish, 72 M.J.
58, 58 (C.A.A.F. 2013).
3
The CAAF has applied this standard when facing questions that the appellant
could not reasonably have raised at trial. See, e.g., United States v. Rose,
71 M.J. 138, 143 (C.A.A.F. 2012) (reviewing de novo the deficient performance
and prejudice aspects of an ineffective assistance of counsel claim).
3
While R.C.M. 902(b) lists various circumstances where
actual bias may require disqualification, R.C.M. 902(a) states
that a military judge shall “disqualify himself or herself in
any proceeding in which that military judge’s impartiality might
reasonably be questioned.” “The appearance standard is designed
to enhance public confidence in the integrity of the judicial
system.” Quintanilla, 56 M.J. at 45 (citing Liljeberg v. Health
Services Acquisition Corp., 486 U.S. 847, 860 (1988)).
We previously concluded in Kish II that the military
judge’s PME statements did not support a finding of actual bias,
and the appellant here has made no showing that the military
judge had a personal bias or prejudice concerning him or his
case. 4 Consequently, we disagree with the appellant’s current
complaint of actual bias and instead we focus on the issue of
apparent bias. The test we apply in this regard 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.” Martinez, 70 M.J. at 157 (citation
and internal quotation marks omitted). The test is met when
there is “‘any conduct that would lead a reasonable man knowing
all the circumstances to the conclusion that the judge’s
impartiality might reasonably be questioned.’” Id. at 158-59
(quoting United States v. Kincheloe, 14 M.J. 40, 50 (C.M.A.
1982)).
Examining the temporal relationship between the military
judge’s PME comments and the appellant’s trial, we find the mere
proximity alone insufficient to find apparent bias. The
appellant’s trial concluded on 12 May 2011, approximately
thirteen months before the military judge’s PME on 21 June 2012.
Next, we note the lack of any indicia of bias in the record, and
the appellant cites none. Absent any aspect of the appellant’s
court-martial that would lead a reasonable person to question
whether the military judge’s PME comments were in fact
reflective of a personal bias, we find the proximity in time
insufficient to establish apparent bias. In this case, the
effect of the military judge’s unrelated PME comments over a
year after the appellant’s trial concluded is not compounded
with anything at trial to reach the level of undermining public
confidence in the judicial system’s integrity. Quintanilla, 56
M.J. at 45. Accordingly, we find no apparent bias.
4
The appellant cites to the trial judge’s comments during the PME regarding
child pornography cases as revealing “a deep-seated disgust of any defendant
sitting in front of him accused of the same offense.” App. Supp. Br. at 17.
Even so, the appellant’s record of trial bears no indicia of any such
antipathy toward the appellant, his crimes or those similarly accused.
4
Conclusion
The findings and the sentence as approved by the convening
authority are affirmed.
For the Court
R.H. TROIDL
Clerk of Court
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