United States v. Ervin ( 2022 )

Before
HOLIFIELD, HOUTZ, and HACKEL
Appellate Military Judges
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In Re Jonathan ERVIN
Lance Corporal (E-3), U.S. Marine Corps
Petitioner
_________________________
UNITED STATES
Respondent
No. 202200145
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Decided: 27 July 2022
Review of Petition for Extraordinary Relief in the Nature of a Writ of
Mandamus
Military Judge:
Nicholas S. Henry
For Petitioner:
Lieutenant Colonel A. Louis Evans, USMC
_________________________
This opinion does not serve as binding precedent, but
may be cited as persuasive authority under
NMCCA Rule of Appellate Procedure 30.2.
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In Re ERVIN, NMCCA No. 202200145
Opinion of the Court
PER CURIAM:
Petitioner is charged at a general court-martial with violating Articles 82
and 134, Uniform Code of Military Justice [UCMJ]. 1
On 11 July 2022, Petitioner filed a Petition for Extraordinary Relief in the
Nature of a Writ of Mandamus and a Stay of Proceedings. He seeks a Writ of
Mandamus ordering the military judge to recuse himself and that all motions
filed after 24 April 2022 be reheard with all previous orders in the case vacated.
I. BACKGROUND
Petitioner was arraigned on 30 December 2021 on charges of possessing
and soliciting child pornography. On 24 February 2022, he entered into a pre-
trial agreement that provided for a range of confinement from 36 to 72 months
and mandated a punitive discharge.
On 25 February 2022, the original trial counsel detailed to Petitioner’s
court-martial, Major [Maj] House, 2 filed a complaint with the Camp Lejuene
Investigator General [IG] against the Senior Defense Counsel [SDC] for Camp
Lejeune, alleging violations of Marine Corps Order 5354.1F, Prohibited Activ-
ities and Conduct [PAC Order]. Specifically, the trial counsel accused the SDC
of bullying and harassing her. The IG forwarded the complaint to the Battalion
Commander, Colonel [Col] Papa. As Col Papa is administratively responsible
for the parties involved, he ordered a preliminary investigation. 3 The investi-
gating officer [IO] found that all allegations included in the IG complaint in-
volved “Trial Service Office Personnel and Defense Service Office personnel
involved in the practice of law.” 4 The IO recommended that the matter be for-
warded to the Regional Defense Counsel – East, as the matter appeared to
involve allegations better described as “professional misconduct.”
Petitioner’s detailed defense counsel subsequently filed a discovery request
seeking all documents and correspondence related to the preliminary investi-
gation. Maj House then cited this discovery request to the IG as an example of
reprisal for her earlier complaint. At a hearing to address the discovery re-
1 10 U.S.C. §§ 882, 934.
2 All names in this opinion, other than those of Petitioner, the judges, and Peti-
tioner’s counsel, are pseudonyms.
3 Although Col Papa is a judge advocate, he is currently serving as the Command-
ing Officer, Headquarters and Support Battalion, Camp Lejeune, a non-legal billet.
4 Pet. Attach. C, at 9.
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In Re ERVIN, NMCCA No. 202200145
Opinion of the Court
quest, the defense counsel challenged the military judge for implied bias, ar-
guing Col Papa’s willingness to accept and investigate complaints against
members of the court created an appearance that the military judge had a con-
flict of interest. The military judge denied the challenge, but ordered Maj
House removed from the case.
Several weeks later, the military judge denied a second defense challenge
for implied bias, this time based on both the previously cited investigation and
the now-removed trial counsel’s claim of reprisal and a vague statement by her
regarding continuing her investigation.
The military judge, in an otherwise unrelated court-martial, ordered Maj
House to testify regarding her intent to file a reprisal complaint based on a
similar discovery request in that case. On the witness stand, prior to question-
ing, Maj House made a statement noting that she was a black female and the
judge was a white male. She did not elaborate as to what this meant—she
simply stated it as fact. Major House then invoked her right to remain silent
under Article 31(b), UCMJ. After excusing Maj House, the military judge com-
mented that the only time race or gender was a consideration for him was when
the issue was properly before him, such as in ruling on challenges to members
during the selection process.
These statements by Maj House and the military judge formed the basis for
a third defense challenge for implied bias on 29 June 2022. The military judge
denied this challenge, as well.
II. DISCUSSION
“As the writ [of mandamus] is one of the most potent weapons in the judicial
arsenal, three conditions must be satisfied before it may issue.” 5 First, there is
no other adequate means to attain the relief desired; second, the right to issu-
ance of the writ is clear and indisputable; and third, the issuing court, in its
discretion, must be satisfied that the issuance of the writ is appropriate under
the circumstances. 6
Petitioner contends that the military judge violated his duty to disqualify
and recuse himself as his “impartiality might reasonably be questioned.” 7 A
5 Cheney v. United States Dist. Court, 542 U.S. 367, 380 (2004) (internal citations
and quotation omitted).
6 Id. at 380–81 (internal citations omitted).
7 Rule for Courts-Martial 902(a).
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In Re ERVIN, NMCCA No. 202200145
Opinion of the Court
military judge’s decision whether to recuse himself is reviewed for an abuse of
discretion. 8
Applying the three-part test enumerated above, we find Petitioner has not
demonstrated an entitlement to the extraordinary remedy requested. The mil-
itary judge did not abuse his discretion by denying the repeated calls for him
to recuse himself. (Making three unfounded motions for recusal does not
change the fact they are unfounded.) We find nothing improper about Col Papa
ordering a preliminary investigation into the initial allegations of a PAC Order
violation. While Judge Advocate General of the Navy Instruction 5803.1E
states that “questions of legal ethics and professional misconduct by covered
attorneys are within the exclusive province of the [Navy’s Judge Advocate Gen-
eral],” it was perfectly reasonable for Col Papa to order a preliminary investi-
gation to determine the facts of the matters alleged and whether the alleged
PAC Order violation even involved a question of “legal ethics [or] professional
misconduct.” 9 We also find that neither Col Papa’s actions nor Maj House’s
statements “would lead a reasonable man knowing all the circumstances to the
conclusion that the judge’s impartiality might reasonably be questioned.” 10
Vague, unexplained statements by a trial counsel no longer assigned to Peti-
tioner’s court-martial, while perhaps puzzling, do not create an appearance of
bias with regard to the military judge. That the military judge felt compelled
to respond briefly to Maj House’s statement is neither puzzling nor evidence of
a potential conflict that gives rise to the specter of bias. Accordingly, we find
Petitioner has not shown his claimed right to a writ is clear and undisputable.
Furthermore, we are not convinced that issuance of the requested writ is
proper.
III. CONCLUSION
Upon consideration of the Petition, the Petition for Extraordinary Relief in
the Nature of a Writ of Mandamus and Stay of Proceedings is DENIED.
8 United States v. Sullivan, 74 M.J. 448, 453 (C.A.A.F. 2015).
9 Para 2a, Enclosure 2, JAGINST 5803.1E, Professional Conduct of Attorneys Prac-
ticing Under the Cognizance and Supervision of the Judge Advocate General, 20 Jan
2015.
10 Hasan v. Gross, 71 M.J. 416, 418 (C.A.A.F. 2012).
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In Re ERVIN, NMCCA No. 202200145
Opinion of the Court
FOR THE COURT:
S. TAYLOR JOHNSTON
Interim Clerk of Court
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