United States v. Shields ( 2022 )

This opinion is subject to administrative correction before final disposition.
Before
GASTON, HOUTZ, and MYERS
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Ethan R. SHIELDS
Staff Sergeant (E-6), U.S. Marine Corps
Appellant
No. 202100061
_________________________
Argued: 21 June 2022 – Decided: 27 July 2022
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judges:
Derek D. Butler (arraignment)
Eric A. Catto (motions and trial)
Sentence adjudged 30 October 2020 by a general court-martial con-
vened at Marine Corps Recruit Depot Parris Island, South Carolina,
consisting of a military judge sitting alone. Sentence in the Entry of
Judgment: reduction to paygrade E-1, total forfeitures, confinement for
52 months, and a dishonorable discharge.
For Appellant:
Lieutenant Commander Daniel O. Moore, JAGC, USN
For Appellee:
Major Clayton L. Wiggins, USMC
Captain Tyler W. Blair, USMC
United States v. Shields, NMCCA No. 202100061
Opinion of the Court
_________________________
This opinion does not serve as binding precedent, but
may be cited as persuasive authority under
NMCCA Rule of Appellate Procedure 30.2.
_________________________
PER CURIAM:
Appellant was convicted, pursuant to his pleas, of attempted indecent vis-
ual recording, wrongful possession and use of a controlled substance, indecent
exposure, indecent visual recording, and possessing, viewing, and producing
child pornography in violation of Articles 80, 112a, 120c, and 134, Uniform
Code of Military Justice [UCMJ]. 1 Appellant asserts two assignments of error:
(1) the forensic search of Appellant’s cellphone constituted an unlawful general
search in violation of the Fourth Amendment; and (2) the military judge
abused his discretion when he denied Appellant’s motion for recusal for bias
given his relationship to trial counsel and a victim in the case. We find no prej-
udicial error and affirm.
I. BACKGROUND
On 23 December 2018, nine Marine recruits reported to their chain of com-
mand that the driver of a car had exposed his genitals to them while they were
walking aboard Marine Corps Recruit Depot Parris Island [MCRD]. Two of the
recruits identified the make and model of the car, and investigators were able
to identify a matching vehicle registered to Appellant that was driven onto
MCRD twice that day. Appellant was subsequently identified in a photo lineup.
When interviewed by Criminal Investigation Division [CID] agents, he denied
committing the alleged offense but admitted being in the vicinity around the
same time. CID reviewed video camera footage recorded on base which estab-
lished that Appellant had a cellphone in his possession around the time of the
incident. Based on the investigation, Appellant’s commanding officer author-
ized the seizure of Appellant’s cellphone and authorized law enforcement to
search it for “all location data stored on the phone or within any application
within the phone for 23 Dec[ember] [20]18.” 2
1 10 U.S.C. §§ 880, 912a, 920c, 934.
2 App. Ex. XXVI at 55.
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After being presented with the search authorization, Appellant provided
the phone and its passcode to CID, which then sent the phone to the Defense
Cyber Crime Center [DC3] to be searched pursuant to the authorization. DC3
extracted all data from Appellant’s phone and provided the extraction file to a
digital forensic examiner to conduct the search. The examiner reviewed the
search authorization and used the “Cellebrite” physical analyzer program to
organize the phone’s data into a readable format. This method separates the
data into categories, or “parsed data,” such as “device locations,” “SMS mes-
sages,” “texts,” “images,” and “internet history.” 3
The examiner first searched the “device locations” category, which yielded
no relevant location data for the date in question. He next began “making a
plan to start looking at the data that was not parsed properly or at all by [the]
physical analyzer and . . . start looking at apps . . . likely to contain location
data.” 4 As he knew based on his training and experience that photos commonly
contain embedded global positioning system [GPS] data, he went to the “im-
ages” category in the physical analyzer. When he opened this category, the de-
fault review setting placed the over 200,000 images stored on Appellant’s
phone into “row after row after row of little thumbnail views of the individual
pictures.” 5 The examiner then reorganized the images into a “table view,”
which placed each thumbnail image in its own row next to columns of related
data—such as filename, file size, and date created—that could be further
sorted and filtered. 6
The examiner then sorted the images by descending file size, so that he
could “view the largest photos first, as they would likely be photos taken by the
device,” which could contain location data. 7 He testified that “once I got it into
these columns and sorted largest to smallest I was going to begin filtering. My
thought process[] is as I filter the larger ones will stay at the top and I don’t
have to re-sort every time I apply the filter.” 8 His intent was to sort “for all
photos that contain GPS [location data] and then . . . filter that with a date.” 9
3 R. at 237–39; App. Ex. XXV at 87.
4 Id. at 240.
5 Id.
6 App. Ex. XXVI at 97.
7 App. Ex. XXVI at 97; R. at 243.
8 R. at 243.
9 Id.
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However, “before [he] could set a filter to only show photos with metadata that
contains location data,” he saw a thumbnail image of suspected child pornog-
raphy. 10 He then stopped the search, and law enforcement requested addi-
tional authorization to search Appellant’s phone for child pornography. After
the additional search authorization was obtained, the examiner resumed
searching Appellant’s phone and other electronic devices and uncovered evi-
dence of additional misconduct, including child pornography and indecent re-
cordings.
At trial, Appellant moved to suppress the evidence for violation of his
Fourth Amendment rights during the search of his cellphone. Upon retracing
the DC3 examiner’s search methodology, Appellant’s digital forensics expert
testified that if the examiner had first filtered the 200,000+ images for only
those containing location data, as opposed to sorting them by file size, the ex-
aminer would not have seen the thumbnail image of suspected contraband. The
military judge denied Appellant’s suppression motion, finding the examiner’s
search of the phone was “conducted in a reasonable manner and did not exceed
the scope of the [search authorization]” and that the suspected contraband was
discovered in plain view during the search for location data. 11
Appellant subsequently entered into a plea agreement with the convening
authority that conditioned his guilty pleas on his right to appeal the military
judge’s suppression ruling.
II. DISCUSSION
A. “Reasonableness” of the Cellphone Search
We review a military judge’s ruling on a motion to suppress evidence for
abuse of discretion and consider the evidence in the light most favorable to the
party that prevailed on the motion. 12 A military judge abuses his discretion if
the findings of fact upon which he predicates his ruling are not supported by
the evidence in the record, if he uses incorrect legal principles, or if he applies
10 App. Ex. XXVI at 97.
11 App. Ex. LIII at 22.
12 United States v. Blackburn, 80 M.J. 205, 210-11 (C.A.A.F. 2020).
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the legal principles to the facts in a way that is clearly unreasonable. 13 To con-
stitute as an abuse of discretion, the decision must be “arbitrary, fanciful,
clearly unreasonable or clearly erroneous.” 14
The Fourth Amendment provides,
The right of the people to be secure in their persons, houses, pa-
pers, and effects, against unreasonable searches and seizures,
shall not be violated; and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particu-
larly describing the place to be searched and the persons or
things to be seized. 15
A search conducted pursuant to a warrant or search authorization is presump-
tively reasonable. 16 However, search authorizations must “describe the things
to be seized with sufficient particularity to prevent a general exploratory rum-
maging in a person’s belongings.” 17 As the Supreme Court has explained, “[b]y
limiting the authorization to search to the specific areas and things for which
there is probable cause to search, the [particularity] requirement ensures that
the search will be carefully tailored to its justifications, and will not take on
the character of the wide-ranging exploratory searches the Framers intended
to prohibit.” 18
Data stored within a cell phone falls within the Fourth Amendment’s pro-
tections. 19 However, such devices present “distinct issues,” and “[t]he prohibi-
tion of general searches is not to be confused with a demand for precise ex ante
knowledge of the location and content of evidence.” 20 Given “the dangers of too
narrowly limiting where investigators can go,” such searches may be properly
13 United States v. Ellis, 68 M.J. 341, 344 (C.A.A.F. 2010).
14 United States v. Sullivan, 74 M.J. 448, 453 (C.A.A.F. 2015) (citation omitted).
15 U.S. Const. amend. IV.
16 See United States v. Wicks, 73 M.J. 93, 99 (C.A.A.F. 2014) (citing Katz v. United
States, 389 U.S. 347, 357 (1967)).
17 United States v. Richards, 76 M.J. 365, 369 (C.A.A.F. 2017) (quoting United
States v. Carey, 172 F.3d 1268, 1272 (10th Cir. 1999)).
18 Maryland v. Garrison, 480 U.S. 79, 84 (1987).
19 Riley v. California, 573 U.S. 373, 386 (2014).
20 Richards, 76 M.J. at 369-70 (citation omitted).
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limited “to evidence of specific federal crimes or specific types of material” with-
out necessarily “requir[ing] particular search methods and protocols.” 21 An au-
thorization to search cell phone data meets constitutional particularity re-
quirements when the areas to be searched are “clearly related to the infor-
mation constituting probable cause.” 22
Nevertheless, such searches remain subject to an “ex post reasonableness
analysis” to assess whether they have struck the appropriate balance between
being “expansive enough to allow investigators access to places where incrim-
inating materials may be hidden, yet not so broad that they become the sort of
free-for-all general searches the Fourth Amendment was designed to pre-
vent.” 23 One aspect of this analysis examines whether the person conducting
the search does so “strictly within the bounds set by the warrant.” 24 To that
end, “[n]arrowly tailored search methods that begin looking ‘in the most obvi-
ous places and [then] progressively move from the obvious to the obscure’
should be used where possible, but are not necessary in every case.” 25 The
Fourth Amendment standard is “reasonableness” 26 and courts assess the gov-
ernment’s search methods after the fact “in light of the specific circumstances
of each case.” 27
Evidence falling outside the scope of a warrant or search authorization may
be seized if “[t]he person while in the course of otherwise lawful activity ob-
serves in a reasonable fashion property or evidence that the person has proba-
ble cause to seize.” 28 In order for this “plain view” exception to apply, (1) the
officer must not violate the Fourth Amendment in arriving at the spot from
which the incriminating materials can be plainly viewed; (2) the incriminating
character of the materials must be immediately apparent; and (3) the officer
21 Id. at 370 (citation omitted).
22 United States v. Allen, 53 M.J. 402, 408 (C.A.A.F. 2000).
23 Richards, 76 M.J. at 370 (citations omitted).
24 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388,
394 n.7 (1971).
25 United States v. Loera, 923 F.3d 907, 920 (10th Cir. 2019) (quoting United States
v. Burgess, 576 F.3d 1078, 1094 (10th Cir. 2009)).
26 United States v. Hill, 459 F.3d 966, 974–77 (9th Cir. 2006) (upholding off-site
search of all defendant’s computer storage media for evidence of child pornography).
27 United States v. Christie, 717 F.3d 1156, 1166 (10th Cir. 2013).
28 Military Rules of Evidence [Mil. R. Evid.] 316(c)(5)(C).
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must have lawful access to the object itself. 29 In this regard, the Supreme Court
has noted that the “distinction between looking at a suspicious object in plain
view and moving it even a few inches is much more than trivial for the purposes
of the Fourth Amendment,” and the plain view exception must “not be used to
extend a general exploratory search from one object to another until something
incriminating at last emerges.” 30
Even where evidence is obtained as a result of an unlawful search or sei-
zure, it may only be excluded from use at trial if such exclusion results in ap-
preciable deterrence of future unlawful searches or seizures and the benefits
of such deterrence outweigh the costs to the justice system. 31 As the Supreme
Court has explained,
[t]o trigger the exclusionary rule, police conduct must be suffi-
ciently deliberate that exclusion can meaningfully deter it, and
sufficiently culpable that such deterrence is worth the price paid
by the justice system. As laid out in our cases, the exclusionary
rule serves to deter deliberate, reckless, or grossly negligent con-
duct, or in some circumstances recurring or systemic negli-
gence. 32
Thus, “[t]he extent to which the exclusionary rule is justified by these deter-
rence principles varies with the culpability of the law enforcement conduct.” 33
“Evidence should be suppressed only if it can be said that the law enforcement
officer had knowledge, or may properly be charged with knowledge, that the
search was unconstitutional under the Fourth Amendment.” 34
Here, the military judge denied Appellant’s suppression motion in a written
ruling wherein he made detailed findings of fact, discussed the applicable law,
and drew conclusions based upon his application of the law to the facts. He
found that (1) the search authorization authorized the DC3 examiner to look
in any applications on the phone where location data from the date 23 Decem-
29 Richards, 76 M.J. at 371.
30Arizona v. Hicks, 480 U.S. 321, 325, 328 (1987) (citation and internal quotation
marks omitted).
31 Mil. R. Evid. 311(a).
32 Herring v. United States, 555 U.S. 135, 144 (2009).
33 Id. at 143.
34 Id. (internal quotation and citation omitted).
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ber 2018 could be located; (2) the examiner’s approach to the search was in-
tended to comply with the parameters of the search authorization and be effi-
cient; (3) the examiner first searched the phone’s parsed location data, which
yielded no data for 23 December 2018; (4) based on his training and experience,
the examiner then planned to search for location data within the phone’s pho-
tos, which he understood to often contain location data; (5) to effect this search,
he sorted the images by file size, since the “larger files were more likely to
contain location data;” (6) after sorting by file size, he observed suspected child
pornography in one of the first ten images, out of over 200,000; and (7) after
seeing this image, he immediately stopped his search, contacted his supervisor,
and received a new search authorization to search the files for child pornogra-
phy. 35
The military judge cited the Fourth Amendment particularity require-
ment’s application to electronic devices, noting that “the courts have looked to
what is reasonable under the circumstances” when determining whether a
search was lawfully conducted within the scope of a search authorization. 36
Focusing specifically on the examiner’s decision to search the images for loca-
tion data, the military judge found that the examiner opened the images cate-
gory because “photographs are a common place to store [location] data;” that
he switched from the thumbnail view to the table view; and that he then sorted
by file size, largest to smallest, because “he believed that user-taken photos
might have location meta-data.” 37 The military judge found that the examiner’s
“plan was to next sort the images by date,” but that he stopped the search be-
cause after sorting the images by size he saw an image of suspected child por-
nography, which was “visible within [the examiner’s] screen without even
scrolling.” 38
On these facts, the military judge concluded the examiner’s search was
“conducted reasonably and did not exceed the scope of the [search authoriza-
tion].” 39 He rejected Appellant’s argument that the search should have been
conducted according to the methodology proffered by Appellant’s digital foren-
sics expert because the examiner’s search was conducted reasonably, which is
all the Fourth Amendment requires. He further concluded that even if the
35 App. Ex. LIII at 6-7.
36 Id. at 12, 20.
37 Id. at 20.
38 Id.
39 Id.
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search methodology was unreasonable, excluding the evidence would not ap-
preciably deter future unlawful searches, since the examiner “attempted to
stay within the scope of the [search authorization], only searching in areas of
the phone authorized by the [search authorization] . . . , looking for images that
would have been stored in the photo application of the phone, since pictures
often contain location metadata.” 40
While we find the DC3 examiner’s search methodology concerning, we find
no abuse of discretion in the military judge’s ruling. The findings of fact upon
which the military judge predicated his conclusions are supported by the evi-
dence in the record and are not clearly erroneous; he applied the correct legal
principles to the facts in a reasonable manner; and the conclusions he reached
are not arbitrary, fanciful, clearly unreasonable or clearly erroneous.
Appellant takes issue with the examiner’s decision to first sort the
200,000+ images by file size before setting filters to narrow them to only (a)
those containing location data and (b) those created on 23 December 2018. We,
too, find it difficult to follow the examiner’s logic in sorting the data in this
manner, which appears to have been driven by mere convenience. As he testi-
fied, his plan was that “once [he] got it into these columns and sorted largest
to smallest [he] was going to begin filtering. [His] thought process[] [was that]
as [he] filter[ed,] the larger ones [would] stay at the top and [he wouldn’t] have
to re-sort every time [he] appl[ied] the filter . . . for all photos that contain GPS
[location data] and then . . . filter[ed] that with a date.” 41 But since his intention
was to “set a filter to only show photos with metadata that contains location
data,” 42 that would seem to obviate the need to sort by file size at all, since
every image file filtered in this way would contain location data, not just the
larger ones.
The real logic driving the examiner’s decision may well be the apparent
skepticism at DC3 that the Cellebrite data analyzer can accurately parse data
in this fashion, and the consequent expectation that examiners will routinely
review data files manually to crosscheck the accuracy of the Cellebrite filters.
As the examiner himself noted, after discussing the issue with one of DC3’s top
examiners, his job was “to analyze ALL DATA on the device, and not just throw
the extraction into a tool and start filtering for dates that may or may not in-
clude all data. . . . We feel that filtering down to a date range up front will only
40 Id.
41 R. at 243.
42 Id.
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lead to missed evidence in any exam, and there is no such ‘SOP [Standard Op-
erating Procedure]’ for examiners.” 43 Similarly, another examiner at DC3
opined that “search authority that specifies ‘all location data stored on the
phone or within any application within the phone . . .’ should involve manual
review. Without manual verification, an examiner would not be able to accu-
rately state that all location data, especially within apps, was reviewed for rel-
evance.” 44
Such an unwritten policy of defaulting to manual review of data files, even
where a search authorization contains specific search limitations, is problem-
atic from a plain view standpoint. As our superior court has noted,
Courts have struggled to apply the plain view doctrine to search
of digital devices, given the vast amount of information they are
capable of storing and the difficulty inherent in tailoring
searches of electronic data to discover evidence of particular
criminal conduct. In light of these difficulties, the application of
the plain view doctrine in a digital context poses a serious risk
that every warrant for electronic information will become, in ef-
fect, a general warrant, rendering the Fourth Amendment irrel-
evant.” 45
And, as we have discussed before, we are mindful of the dangers posed by al-
lowing digital searches to devolve into the sort of “wide-ranging exploratory
searches the Framers intended to prohibit.” 46
Nevertheless, in this case, we do not find that the military judge clearly
erred when he found “no evidence to suggest that [the examiner] was rummag-
ing through areas of [Appellant’s phone] where the [search authorization] did
not allow him to look.” 47 Although the examiner’s search methodology was less
than ideal, it was directed toward finding location data for 23 December 2018,
in compliance with the search authorization. There is nothing in the record
that indicates he was deliberately searching for child pornography, and once
43 App. Ex. XXVI at 91.
44 App. Ex. XXVI at 100.
45 United States v. Gurczynski, 76 M.J. 381, 387 (C.A.A.F. 2017) (citations and in-
ternal quotation marks omitted).
46 United States v. Lee, No. 202000239, 2022 CCA LEXIS, *32 (N-M. Ct. Crim. App.
Apr. 5, 2022) (unpublished) (quoting Garrison, 480 U.S. at 84).
47 App. Ex. LIII at 20.
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he saw the image at issue he immediately halted the search without further
manipulating it and sought a new authorization.
We note, however, that another military judge might reasonably have con-
cluded otherwise on similar facts. The plain view exception requires that each
step of an authorized search comply with the Fourth Amendment in arriving
at the spot from which the incriminating materials are plainly viewed. Digital
forensic examiners must therefore take great care to not only fully document
their search methods, but also narrowly tailor them to “begin looking ‘in the
most obvious places and [then] progressively move from the obvious to the ob-
scure.’” 48 The examiner’s search in this case was problematic in both respects.
And in another case there may be additional evidence to support a finding of
not just mere negligence in this regard, but the sort of “gross[] [or] . . . recurring
or systemic negligence” that the exclusionary rule is specifically designed to
deter. 49
B. Motion to Recuse
At trial the military judge disclosed that he had prior friendly, professional
relationships with both the trial counsel and the trial defense counsel. Addi-
tionally, the trial defense counsel notified the military judge that one of the
court reporters was a named victim in the case. After conducting voir dire
about the military judge’s relationships with the trial counsel and the court
reporter, Appellant moved for the military judge’s recusal. He argued that the
military judge could not be impartial because of “implied bias,” that the “pub-
lic’s confidence in military justice” would be undermined because of those rela-
tionships and that the military judge was required to recuse himself for appar-
ent bias pursuant to Rules for Courts-Martial [R.C.M.] 902(a). After hearing
argument, the military judge denied the motion.
Appellant then entered into a plea agreement in which he agreed to plead
guilty to certain offenses conditioned upon his right to preserve certain issues
for appeal—which did not include the denial of his recusal motion. He also
agreed to plead guilty unconditionally to Charge III and its sole specification
(indecent exposure in violation of Article 120c, UCMJ), and waived all motions
except those that are non-waivable under R.C.M. 705(c)(1)(B) with respect to
that offense. At trial, after agreeing to be tried and sentenced by the same mil-
itary judge who had denied his recusal motion, Appellant confirmed that he
48 Loera, 923 F.3d at 920 (quoting Burgess, 576 F.3d at 1094).
49 Herring, 555 U.S. at 144.
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understood these provisions and had freely and voluntarily agreed to them in
exchange for what he believed to be a beneficial plea agreement.
1. Waiver
We review de novo the legal question of whether an appellant has waived
an issue. 50 Forfeiture is the failure to make a timely assertion of a right
whereas waiver is the intentional relinquishment or abandonment of a known
right. 51 “Unlike claims based on actual bias, disqualification under R.C.M.
902(a) is subject to waiver after full disclosure on the record of the basis for
disqualification.” 52
Here, the basis for Appellant’s recusal motion under R.C.M. 902(a) was the
relationship between the military judge and both the trial counsel and the
court reporter, who was a named victim in Appellant’s court-martial. We find
that Appellant, having conducted voir dire of the military judge into these very
issues, was fully informed and aware of the extent of the military judge’s rela-
tionships with the individuals involved when he agreed to waive this issue to
gain the benefit of his pretrial agreement. We find the knowing nature of this
waiver further reinforced by Appellant’s election to plead guilty before and be
sentenced by the same military judge. Accordingly, we find that Appellant
knowingly and intentionally waived the issue he now asserts as error. 53
2. Apparent Bias
We generally do not review waived issues “because a valid waiver leaves no
error for us to correct on appeal.” 54 However, while there is no waiver provision
present in Article 66, UCMJ, military courts of criminal appeals still must re-
view the entire record and approve only that which “should be approved.” 55
50 United States v. Davis, 79 M.J. 329, 331 (C.A.A.F. 2020).
51 Davis, 79 M.J. at 331 (quoting United States v. Gladue, 67 M.J. 311, 313
(C.A.A.F. 2009)).
52United States v. Black, 80 M.J. 570, 574 (C.A.A.F. 2020) (citing Rules for Courts-
Martial [R.C.M.] 902(e); United States v. Quintanilla, 56 M.J. 37, 77 (C.A.A.F. 2001)).
53 See Gladue, 67 M.J. at 314.
54 Davis, 79 M.J. at 331 (quoting United States v. Campos, 67 M.J. 330, 332
(C.A.A.F. 2009)).
United States v. Chin, 75 M.J. 220, 223 (C.A.A.F. 2016) (quoting Article 66,
55
UCMJ).
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This includes reviewing “whether to leave an accused’s waiver intact, or to cor-
rect error.” 56 In this case we leave the waiver intact because even if we were to
review his claim, we would find no prejudicial error.
A military judge’s decision not to recuse himself is reviewed for an abuse of
discretion. 57 Any error is reviewed for harmlessness. 58 An accused has a con-
stitutional right to an impartial judge. 59 However, there is a “high hurdle” an
appellant must clear to prove that a military judge was partial or appeared to
be so, as the law establishes a “strong presumption” to the contrary. 60 R.C.M
902(a) states that “a military judge shall disqualify himself . . . in any proceed-
ing in which that military judge’s impartiality might reasonably be ques-
tioned.” 61 Our higher court has articulated this standard as “[a]ny conduct that
would lead a reasonable man knowing all the circumstances to the conclusion
that the judge’s impartiality might reasonably be questioned.” 62
Having a professional relationship or friendship is not, in and of itself, dis-
qualifying. As our superior court has noted “[t]he world of career [judge advo-
cates] is relatively small and cohesive, with professional relationships the
norm and friendships common.” 63 In most instances, professional or friendly
relationships do not require a military judge to recuse himself. The real ques-
tion is not whether there is a relationship but, rather whether the relationship
between a military judge and a party raises “special concerns,” whether the
relationship was “so close or unusual as to be problematic,” and whether “the
association exceeds what might reasonably be expected in light of the [normal]
associational activities of an ordinary [military] judge.” 64
56 Id.57 United States v. Sullivan, 74 M.J. 448, 453 (C.A.A.F. 2015).
58United States v. Roach, 69 M.J. 17, 20 (C.A.A.F. 2010) (citing Liljeberg v. Health
Services Acquisition Corp., 486 U.S. 874 (1988)).
59 United States v. Butcher, 56 M.J. 87, 90 (C.A.A.F. 2001) (quotation marks and
citation omitted).
60 United States v. Quintanilla, 56 M.J. 37, 44 (C.A.A.F. 2001).
61 R.C.M. 902(a).
62 Hasan v. Gross, 71 M.J. 416, 418 (C.A.A.F. 2012).
63United States v. Uribe, 80 M.J. 442, 447 (C.A.A.F. 2021) (citing Butcher, 56 M.J.
at 91).
64 Uribe, 80 M.J. at 447 (cleaned up).
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Here, the military judge made findings, stated the law he was applying,
and made his ruling on the record denying Appellant’s motion. He cited R.C.M.
902 and applied the “objective standard of whether a reasonable person, know-
ing the circumstances, would conclude that the military judge’s impartiality
might reasonably be questioned.” 65 He then discussed his application of United
States v. Uribe, noting that while Appellant “has the Constitutional right to an
impartial judge,” a judge also “has as much of an obligation to not disqualify
himself when there’s no reason to do so.” 66 He also considered the factors from
Liljeberg v. Health Servs. Acquisition Corp., for recusal: (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
confidence in the judicial process.” 67
We find an objectively reasonable person aware of all the relevant facts
concerning the military judge’s professional relationship with the trial counsel
and a named victim in Appellant’s court-martial would have no questions
about the military judge’s impartiality. We therefore find no error in the mili-
tary judge’s decision to deny Appellant’s motion that he recuse himself.
III. CONCLUSION
After careful consideration of the record and briefs of appellate counsel, we
have determined that the findings and sentence are correct in law and fact and
that no error materially prejudicial to Appellant’s substantial rights oc-
curred. 68
The findings and sentence are AFFIRMED.
FOR THE COURT:
S. TAYLOR JOHNSTON
Interim Clerk of Court
65 R. at 30.
66 Id.
67 Id. at 31 (quoting Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 864
(1988)).
68 Articles 59 & 66, UCMJ.
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