United States v. Sullivan , 2015 CAAF LEXIS 724 ( 2015 )

UNITED STATES, Appellee
v.
Michael E. SULLIVAN, Captain
U.S. Coast Guard, Appellant
No. 15-0186
Crim. App. No. 001-69-13
United States Court of Appeals for the Armed Forces
Argued May 12, 2015
Decided August 19, 2015
OHLSON, J., delivered the opinion of the Court, in which BAKER,
STUCKY and RYAN, JJ., joined. ERDMANN, C.J., filed a separate
opinion concurring in part and dissenting in part.
Counsel
For Appellant: Eugene R. Fidell, Esq. (argued); Lieutenant
Philip A. Jones (on brief).
For Appellee: Lieutenant Commander Amanda M. Lee (argued).
Military Judge: Gary E. Felicetti
This opinion is subject to editorial revision before final publication.
United States v. Sullivan, No. 15-0186/CG
Judge OHLSON delivered the opinion of the Court.*
A general court-martial composed entirely of captains
convicted Appellant, a captain in the United States Coast Guard
with more than twenty-seven years of service, of wrongful use of
cocaine in violation of Article 112a, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 912a (2006). The court-martial
panel had no flag officers1 because the convening authority
categorically excluded all such officers from the member pool in
violation of Article 25, UCMJ, 10 U.S.C. § 825. In addition,
the military judge acknowledged that he had prior relationships,
both professional and social, with a significant number of the
court-martial participants, but he declined to disqualify
himself from presiding over the trial.
We granted Appellant’s petition for review on the following
two issues:
I. WHETHER THE GOVERNMENT CARRIED ITS BURDEN OF PROVING
THAT THE CONVENING AUTHORITY’S CATEGORICAL EXCLUSION OF ALL
FLAG OFFICERS WAS HARMLESS.
II. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN
DENYING CHALLENGES FROM BOTH PARTIES TO HIS IMPARTIALITY
BASED ON PRIOR PERSONAL RELATIONSHIPS WITH INDIVIDUAL
MILITARY COUNSEL, THE ACCUSED, TRIAL COUNSEL, SEVERAL
MEMBERS, SEVERAL WITNESSES, AND THE STAFF JUDGE ADVOCATE.
*Former Chief Judge James E. Baker took final action in this
case prior to the expiration of his term on July 31, 2015.
1
A flag officer is an officer of the “Coast Guard serving in or
having the grade of admiral, vice admiral, rear admiral, or rear
admiral (lower half).” 10 U.S.C. § 101(b)(5) (2012).
2
United States v. Sullivan, No. 15-0186/CG
Upon analyzing these issues, we conclude that under the
particular circumstances of the instant case, the convening
authority’s exclusion of flag officers from the member pool was
harmless. We further conclude that the military judge’s
decision not to disqualify himself did not constitute an abuse
of discretion. Accordingly, we hold that Appellant is not
entitled to relief.
I. BACKGROUND
In June 2008, Appellant tested positive for cocaine
pursuant to a random urinalysis. Subsequent tests of
Appellant’s hair confirmed the presence of cocaine. A general
court-martial was convened and at trial Appellant claimed that
his positive drug test stemmed from his wife’s admitted use of
cocaine in their household. Contrary to his plea, however, the
panel convicted Appellant of the cocaine use offense2 and
sentenced him to a fine of $5,000 and a reprimand, which the
convening authority then approved. The acting Judge Advocate
General of the Coast Guard (TJAG) referred this case to the
United States Coast Guard Court of Criminal Appeals (CCA) for
review pursuant to Article 69(d), UCMJ, 10 U.S.C. § 869(d). The
CCA affirmed the findings and sentence.
2
Appellant was acquitted of a charge and specification of
conduct unbecoming an officer and a gentleman, in violation of
Article 133, UCMJ, 10 U.S.C. § 933.
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II. SELECTION OF MEMBERS
A. Facts
The panel in Appellant’s case was selected from a ten-
person venire that was composed entirely of captains who had
served for at least twenty-seven years in the Coast Guard.
Because of the omission of flag officers from the member pool,
Appellant moved to dismiss his case for a violation of Article
25, UCMJ.
The military judge denied the motion because he was not
convinced that “the convening authority’s effort to pick
officers who might actually be able to serve on the court [was]
improper.” He based this conclusion on the following findings:
(1) the convening authority had been advised of the Article 25,
UCMJ, selection criteria at least six times in writing and twice
verbally; (2) the convening authority had determined that the
flag officers were not available based on his “personal
experience” and “general knowledge” of flag officers’ duties and
schedules; (3) the convening authority had not inquired “into
the availability of any particular flag officer”; and (4) the
convening authority had not attempted to “stack the court with
post-continuation” captains,3 but instead “was motivated by a
3
A post-continuation captain is an officer who has not been
selected for promotion to rear admiral but has been selected to
continue service as a captain with the Coast Guard. See
14 U.S.C. § 289(a). Those captains considered, but not
selected, for continuation must retire. Id. § 289(g).
4
United States v. Sullivan, No. 15-0186/CG
desire to select members who” were qualified and who were
available to “actually serve on the panel.” The military judge
also found that the convening authority “did not categorically
exclude all flag officers [from] consideration.”
On appeal the CCA concluded that the military judge clearly
erred in finding that the convening authority had not
categorically excluded flag officers from the venire panel, and
further concluded that this exclusion violated Article 25, UCMJ.
However, the CCA determined that the Government had established
that this exclusion was harmless, and it otherwise adopted the
military judge’s factual findings.
B. Standard of Review
We review “claims of error in the selection of members of
courts-martial de novo as questions of law.” United States v.
Bartlett, 66 M.J. 426, 427 (C.A.A.F. 2008). We also conduct a
de novo review to determine whether an error in member selection
is harmless. See United States v. Ward, 74 M.J. 225, __ (7)
(C.A.A.F. 2015).
C. Discussion
The Government has not challenged the CCA’s holding that
the convening authority’s categorical exclusion of flag officers
from the member pool violated Article 25, UCMJ. See United
States v. Kirkland, 53 M.J. 22, 24 (C.A.A.F. 2000); United
States v. Nixon, 33 M.J. 433, 435 (C.M.A. 1991) (“[M]ilitary
5
United States v. Sullivan, No. 15-0186/CG
grade by itself is not a permissible criterion for selection of
court-martial members.”); see also Article 25(a), (d)(2), UCMJ.
Appellant raises two theories for reversal because of this
categorical exclusion: (1) the exclusion created an appearance
of unfairness; and (2) the Government did not meet its burden of
establishing the exclusion was harmless. We address each
argument in turn.
First, there is no appearance of an unfair panel in this
case. Although the convening authority deviated from the
Article 25, UCMJ, criteria by categorically excluding flag
officers from the venire panel, he provided Appellant with a
venire of fellow senior captains who were fully qualified to sit
on a court-martial panel. Indeed, we find no basis to conclude
that the convening authority selected the members on any factors
other than their “age, education, training, experience, length
of service, and judicial temperament.” Article 25(d)(2), UCMJ.
Further, the record provides no indication that these panel
members failed to fully, carefully, and appropriately consider
Appellant’s case in arriving at a verdict and sentence.
Moreover, the convening authority’s motivation in excluding flag
officers from this case was not to stack the panel against
Appellant. Rather, the convening authority relied on his
experience in concluding that the flag officers would not be
6
United States v. Sullivan, No. 15-0186/CG
available to actually sit on the panel and hear the case.4
United States v. Gooch, 69 M.J. 353, 358 (C.A.A.F. 2011). Based
on these circumstances, we conclude that there was no appearance
of unfairness.
Second, the Government has met its burden of establishing
that the categorical exclusion of flag officers was harmless.
See Ward, 74 M.J. at __ (9) (noting Government has burden of
showing Article 25, UCMJ, violation was harmless). As discussed
above, the convening authority’s motivation in excluding the
flag officers was based on his belief that they would be
unavailable to actually serve on the court-martial. See
Bartlett, 66 M.J. at 430 (evaluating convening authority’s
motivation in determining harmlessness). Further, the selected
members, all of whom were captains, met the Article 25, UCMJ,
criteria. See id. (examining whether selected members met
Article 25, UCMJ, criteria). Finally, the members’ actions in
this case demonstrate that they were fair and unbiased. See
Gooch, 69 M.J. at 361 (noting fairness and impartiality of
members in evaluating for harmlessness). This point is
underscored by the fact that the members stated that they would
be impartial during voir dire; they were active participants
4
We note that instead of relying on his experience in concluding
that all of the flag officers would not be available to serve on
the panel, the convening authority should have made
individualized inquiries on this point.
7
United States v. Sullivan, No. 15-0186/CG
throughout the trial who posed unbiased questions during the
course of the trial; they deliberated over the course of three
days before rendering a verdict, which included an acquittal of
one charge; and they imposed a lenient sentence. In light of
these factors, we conclude that the Government has met its
burden of establishing that the categorical exclusion of flag
officers was harmless.5
Because we find no reversible error with respect to the
member selection issue, we next examine whether the military
judge should have disqualified himself from presiding at
Appellant’s trial because of his various connections to a number
of the court-martial participants.
III. THE MILITARY JUDGE
A. Facts
At the time of Appellant’s trial, the Coast Guard only had
one military judge certified to preside over general courts-
martial. This military judge served as the Chief Trial Judge of
the Coast Guard, had attained the rank of captain, and had
5
Although the Government has the burden with respect to
harmlessness, we consider, and reject, Appellant’s allegation
that there was prejudice due to the members being in the same
promotion pool as Appellant. This allegation is speculative
because the trial record does not reveal that the members acted
with any improper motive. See Bartlett, 66 M.J. at 431 n.4
(rejecting the appellant’s argument for prejudice in member
selection case as “speculative at best”). This allegation
therefore does not demonstrate that the Government failed to
meet its burden.
8
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almost twenty-eight years of commissioned service in the Coast
Guard.
As the military judge noted in his findings of fact, the
Coast Guard is a “small service with a much smaller legal
community. A large percentage of its commissioned officers,
particularly at the more senior levels, attended the Coast Guard
Academy.” Indeed, the tight-knit nature of the Coast Guard is
reflected in the significant number of relationships that the
military judge in the instant case had with various participants
in the court-martial process, as reflected below.
First, the military judge knew Appellant and his wife.
More than twenty years before trial, Appellant and the military
judge were stationed at the same Coast Guard facility, and
Appellant and his wife socialized with a group of junior
officers that included the military judge. However, the
military judge had not had any contact with Appellant or his
wife for more than twenty years.
Second, the military judge supervised the individual
military defense counsel (IMC) for one year in 2002, which was
seven years before Appellant’s trial. During this supervisory
relationship, the military judge and the IMC had dinner at each
other’s homes once each. The military judge and the IMC also
had a few professional contacts regarding organizational or
management issues subsequent to this supervisory relationship.
9
United States v. Sullivan, No. 15-0186/CG
It should also be noted that, after the IMC was detailed to the
instant case, he sought to resume his prior status as a
collateral duty special court-martial military judge in early
2009. However, although the military judge, as the chief trial
judge, ordinarily would make recommendations about the special
court-martial judges, he recused himself from the IMC’s request.
Third, the staff judge advocate (SJA) to the convening
authority was serving as a collateral-duty special court-martial
military judge. As the chief trial judge in the Coast Guard,
the military judge had “managerial oversight” of the SJA in the
SJA’s capacity as a military judge. The military judge also
knew of the SJA through conferences, trainings, and meetings.
Fourth, the military judge and trial counsel had
professional contacts stemming from a different court-martial.
The military judge described his professional relationship with
trial counsel as “some very limited involvement in a contested
members case.”
Fifth, the military judge also had a professional
relationship with the senior assistant trial counsel (ATC)
concerning the ATC’s role as Chief of the Office of Military
Justice at Coast Guard Headquarters who had the primary
responsibility for military justice policy. At the time of
Appellant’s trial, this office was in the process of revising
the Coast Guard’s military justice manual. The military judge
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United States v. Sullivan, No. 15-0186/CG
had suggested changes to the manual, but he did not discuss
Appellant’s case with the ATC and instead directed his comments
to the ATC’s deputy once he learned of the ATC’s role in this
case.
Sixth, the military judge had “professional and work-
related social contacts” with CAPT Kenney, a defense witness and
the initial defense counsel, beginning in 2004. The military
judge’s most frequent contacts with CAPT Kenney occurred between
2006 and 2008 when CAPT Kenney was a field SJA and the military
judge was the Chief of the Office of Legal Policy & Program
Development at Coast Guard Headquarters (LPD), the position that
CAPT Kenney transferred to following the military judge’s
departure. As the Chief of the LPD, the military judge’s job
was to support the field SJAs, which meant he spent “a lot of
time on the phone” with SJAs, including CAPT Kenney. The
military judge also was in charge of assignments, which led to
discussions with CAPT Kenney about the needs of the SJA office
and CAPT Kenney’s own assignments. The military judge
encouraged CAPT Kenney to replace him as the Chief of the LPD
and made a recommendation to this effect. Since the parties did
not inform the military judge about CAPT Kenney’s role as a fact
witness in this case until late March 2009, the military judge’s
professional contacts with CAPT Kenney lasted through February
2009 and concerned the selection of new collateral duty special
11
United States v. Sullivan, No. 15-0186/CG
court-martial military judges. However, the military judge and
CAPT Kenney never discussed Appellant’s case.
Seventh, the military judge had relationships with other
court-martial participants and potential witnesses that arose
from the military judge’s attendance at the Coast Guard Academy
in the late 1970s and early 1980s and/or from his professional
duties during his lengthy service in the Coast Guard.
Eighth, the military judge’s direct supervisor was TJAG.
The military judge never discussed particular cases with TJAG,
including this case. However, the military judge contacted the
deputy judge advocate general (DJAG) during Appellant’s case so
that DJAG would give TJAG “a heads-up” about being a potential
witness for motions in this case. The military judge explained
that his contact with DJAG was “[j]ust a courtesy” to notify
TJAG about the situation. The military judge stated he would
not have done this for another witness because he did not “work
for any other witness.”
Ninth, certain individuals detailed to the original or
amended member pools also knew the military judge as a classmate
at the Coast Guard Academy and/or through working relationships.
One of these members stated that his prior association with the
12
United States v. Sullivan, No. 15-0186/CG
military judge would keep him from following the military
judge’s instructions.6
Because of the members’ familiarity with him, the military
judge stated that he understood “the government’s concern with
getting members who [could] . . . follow [his] instructions as
they’re required to do.” To try to alleviate this concern and
to help the Government assemble a panel, the military judge
stated that he would “try to find a senior judge from another
service.” Regarding this point, the military judge had the
following exchange with the IMC:
IMC: If I may ask a question, sir. Maybe I just
don’t get it, but why would you do that?
[Military Judge]: As a matter of convenience for
the -- essentially, I guess, the government, who has
to produce a panel.
IMC: Because of the concern that they would not
be able to produce enough people based on some of the
arguments that came up here today, because of [the]
relationship with you or [the] perceived relationship
with you?
[Military Judge]: Whatever their concerns are --
and you’ve articulated concerns too. Again, it would
be a matter of convenience to say, you know what, we
think, if you have this, then it makes . . . our life
easier.
The military judge later informed the parties that his
inquiries for a replacement military judge ultimately “didn’t
6
This individual ultimately was not selected as part of the
final member pool. It is unclear from the record whether his
response to this question was a typographical error.
13
United States v. Sullivan, No. 15-0186/CG
pan out” due to issues with “the motions practice, the posture
and the timing.”
The Government, with Appellant’s concurrence, filed a
“Motion for Recusal of the Military Judge.” The Government’s
request was based on an appearance of bias stemming from the
military judge’s relationships with various court-martial
participants. Appellant agreed with the Government’s motion
and, in a separate filing, noted that this appearance of bias
was exacerbated by the fact that the military judge was in the
same promotion zone as Appellant, this case had high visibility,
and TJAG was the military judge’s direct supervisor.
After an extensive proffer by the military judge and a
colloquy between the military judge and the parties, the
military judge denied the motion for disqualification. The
military judge explained that his prior relationships with a
number of the court-martial participants did not raise an
appearance of bias because the “vast majority” of contacts
occurred at routine work-related events and the social contacts
were minimal and distant in time. He also stated that the issue
of competing with Appellant for a promotion was “illusory,” and
he noted that he had “more prior contacts with the [d]efense
side” than with the Government side.
14
United States v. Sullivan, No. 15-0186/CG
B. Standard of Review
Our review of a military judge’s disqualification decision
is for an abuse of discretion. United States v. McIlwain,
66 M.J. 312, 314 (C.A.A.F. 2008); United States v. Quintanilla,
56 M.J. 37, 77 (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. United
States v. Brown, 72 M.J. 359, 362 (C.A.A.F. 2013) (internal
quotation marks and citation omitted).
Appellant does not claim that the military judge in his
case was actually biased, only that the military judge’s
presence raised an appearance of bias under Rule for Courts-
Martial (R.C.M.) 902(a).7 We apply an objective standard for
identifying an appearance of bias by asking whether a reasonable
person knowing all the circumstances would conclude that the
military judge’s impartiality might reasonably be questioned.
Hasan, 71 M.J. at 418. Recusal based on an appearance of bias
“is intended to ‘promote public confidence in the integrity of
the judicial process.’” Id. (quoting Liljeberg v. Health Servs.
Acquisition Corp., 486 U.S. 847, 858 n.7 (1988)). However, this
“appearance standard does not require judges to live in an
7
This rule states: “A military judge shall disqualify himself
. . . in any proceeding in which that military judge’s
impartiality might reasonably be questioned.” R.C.M. 902(a).
15
United States v. Sullivan, No. 15-0186/CG
environment sealed off from the outside world.” United States
v. Butcher, 56 M.J. 87, 91 (C.A.A.F. 2001). Although a military
judge is to “broadly construe” the grounds for challenge, he
should not leave the case “unnecessarily.” R.C.M. 902(d)(1)
Discussion.
C. Overview
As can be seen by the facts recited above, the military
judge had professional and/or social contacts with a significant
number of the court-martial participants in this case. Under
these circumstances it could fairly be argued that the military
judge should have disqualified himself out of a sense of
prudence.8 However, as also noted above, that is not the
standard of review we are obligated to apply in deciding such
cases on appeal. Rather, we are required to apply an abuse of
discretion standard in determining whether the military judge’s
decision not to disqualify himself was error.
In analyzing this issue, we note at the outset the
following points: the military judge fully disclosed his
relationships with the participants in the court-martial; the
record reveals no evidence of any actual bias on the part of the
military judge, or of any other actions or rulings by the
8
Cf. United States v. Gorski, 48 M.J. 317 (C.A.A.F. 1997)
(noting in a memorandum opinion by Judge Effron that when
recusal is interjected into the proceedings and recusal is not
required as a matter of law, a judge must still decide if
recusal is appropriate as a matter of discretion).
16
United States v. Sullivan, No. 15-0186/CG
military judge that would independently raise appearance issues;
and the military judge fully heard the views of both parties on
this issue and then affirmatively stated on the record that he
could remain impartial to both sides. Accordingly, under these
particular circumstances we conclude that the military judge’s
disqualification decision was not “arbitrary, fanciful, clearly
unreasonable, or clearly erroneous.” Brown, 72 at 362 (internal
quotation marks and citation omitted).
D. Discussion
We find no abuse of discretion in the military judge’s
failure to disqualify himself for the following reasons. First,
the military judge specifically stated on the record that none
of his associations with court-martial participants would
influence any of his decisions in Appellant’s case. See United
States v. Wright, 52 M.J. 136, 141 (C.A.A.F. 1999) (“[D]espite
an objective standard, the judge’s statements concerning his
intentions and the matters upon which he will rely are not
irrelevant to the inquiry.”).
Second, Appellant has not identified any conduct by the
military judge which tends to demonstrate that he
inappropriately influenced the panel in this case. Indeed, the
panel’s active participation, lengthy deliberations, and lenient
sentence seem to underscore the point that they acted
independently in this matter.
17
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Third, although the military judge had to resolve a number
of pretrial motions, Appellant has not pointed to any rulings
that raise appearance concerns.
Fourth, we note that “[p]ersonal relationships between
members of the judiciary and witnesses or other participants in
the court-martial process do not necessarily require
disqualification.” Norfleet, 53 M.J. at 270. Further, “a
former professional relationship is not per se disqualifying.”
Wright, 52 M.J. at 141.
Here, the military judge was forthcoming and catalogued his
relationships with the participants in the trial and subjected
himself to voir dire on this subject. As the summary of these
relationships outlined above demonstrates, most of the military
judge’s contacts were professional and routine in nature.
Further, although “a social relationship creates special
concerns,” those relationships that had a social component
occurred years prior to the court-martial and were not close or
intimate. Cf. United States v. Sherrod, 26 M.J. 30, 31 & n.2
(C.M.A. 1988) (agreeing with lower court that military judge was
disqualified where victim was a close friend of the military
judge’s thirteen-year-old daughter with whom the military judge
had socialized); United States v. Berman, 28 M.J. 615, 618
(A.F.C.M.R. 1989) (en banc) (finding intimate relationship
between military judge and trial counsel in appellants’ courts-
18
United States v. Sullivan, No. 15-0186/CG
martial required disqualification). In regard to the military
judge’s decision to notify DJAG that TJAG might by a witness for
some motions in this case, although this step may have been ill-
advised, we find an insufficient basis to conclude that it
reasonably brought into question the military judge’s
impartiality.
We note that in certain circumstances, the cumulative
nature of a military judge’s relationships can create an
appearance issue. See United States v. DeTemple, 162 F.3d 279,
287 (4th Cir. 1998) (“[A] confluence of facts [may] create a
reason for questioning a judge’s impartiality, even though none
of those facts, in isolation, necessitates recusal.”); see also
United States v. Amico, 486 F.3d 764, 776 (2d Cir. 2007) (noting
that recusal is warranted when “in the aggregate, the
[circumstances of the case] would lead a disinterested observer
to conclude that the appearance of partiality existed”).
However, in the instant case the number and type of contacts
that the military judge had with the participants in the court-
martial appear to simply be the natural consequence of the
military judge’s length of service in the relatively small Coast
Guard, and we do not find a sufficient basis to conclude that a
reasonable person familiar with all the circumstances in this
case would conclude that the “military judge’s impartiality
might reasonably be questioned.” R.C.M. 902(a); see DeTemple,
19
United States v. Sullivan, No. 15-0186/CG
162 F.3d at 287 (“‘[O]ther things being equal, the more common a
potentially biasing circumstance and the less easily avoidable
it seems, the less that circumstance will appear to a
knowledgeable observer as a sign of partiality.’” (quoting In re
Allied-Signal Inc., 891 F.2d 967, 971 (1st Cir. 1989))).
Appellant cites three circumstances of this case that, in
his view, serve to increase the appearance of bias. Appellant
first argues that the military judge and Appellant were both
captains subject to promotion, and thus were in competition with
one another for one of the coveted flag officer slots. However,
the military judge “disclaimed” any potential conflict, and
noted that as a judge advocate, he would not be in competition
for the same promotion as Appellant who was not a judge
advocate. We agree with the military judge that this potential
promotion conflict was “illusory” and did not create an
appearance of bias.
Appellant next contends that the parties’ joint request for
disqualification demonstrates that the circumstances of the case
raised an appearance of bias problem. We agree that the
parties’ joint request did provide support for disqualification
under R.C.M. 902(a) because a “disinterested observer would have
noted that the government joined the [accused’s] motions for
recusal -- a very unusual development demonstrating that all
parties were seriously concerned about the appearance of
20
United States v. Sullivan, No. 15-0186/CG
partiality.” Amico, 486 F.3d at 776. Indeed, we caution
military judges to be especially circumspect in deciding whether
to disqualify themselves in such instances. Nevertheless, after
considering the circumstances surrounding the basis for the
disqualification request in the instant case, we again do not
find an adequate basis to conclude that the military judge
abused his discretion when he decided not to disqualify himself.
Appellant finally argues that under McIlwain, the military
judge’s statement about inquiring into the availability of a
military judge from another military service is evidence that
the military judge himself recognized that there was an
appearance of bias. In McIlwain, we found that the military
judge abused her discretion in not disqualifying herself because
she stated: “[H]er participation would suggest to an impartial
person looking in that I can’t be impartial in this case.”
66 M.J. at 314 (internal quotation marks omitted). However, the
military judge’s statements in this case about inquiring into
the availability of a military judge from another armed service
are distinguishable from those in McIlwain. Specifically, these
statements were meant to address the Government’s concern about
the efforts they would have to undertake to assemble an
impartial member pool, which deals with an issue of member bias,
not military judge bias. Further, unlike the military judge in
21
United States v. Sullivan, No. 15-0186/CG
McIlwain, the military judge in Appellant’s case specifically
rejected the notion that there was an appearance problem:
[D]o I believe [the multiple relationships with court-
martial participants] creates an appearance of bias or
impartiality in favor or against the accused? No, I
don’t. I mean obviously I would have disqualified
myself if I did.
Thus the military judge’s statement regarding inquiring
about military judge availability from other armed services does
not conclusively raise any appearance of bias concerns.
We therefore conclude that under the circumstances of
Appellant’s case, the military judge acted within his discretion
in finding that his various relationships with court-martial
participants did not constitute a basis for disqualification.
CONCLUSION
We conclude that neither the manner of the member selection
nor the presence of the military judge in this case warrants
reversal. The decision of the United States Coast Guard Court
of Criminal Appeals is therefore affirmed.
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ERDMANN, Chief Judge (concurring in part and dissenting in
part):
I concur with the majority’s decision on Issue I, that
under our precedent, the violation of Article 25, UCMJ, was
harmless. However, I respectfully dissent from its
determination that the military judge did not abuse his
discretion when he denied the motions of both parties to recuse
himself. The military judge in this case had a personal or
professional relationship with nearly everyone involved in the
court-martial process, to include the Staff Judge Advocate who
advised the convening authority, the Article 32 hearing officer,
the trial counsel, the assistant trial counsel, the defense
counsel, three defense witnesses, the Judge Advocate General
(TJAG) (his supervisor and a potential witness), the panel
members, and the accused himself. Additionally, the military
judge found himself in the same promotion pool as the accused.
At some point, too much is simply too much.
Sullivan argues that in light of these facts, the military
judge’s failure to recuse himself resulted in an appearance of
bias. This is an issue we have addressed many times.
In the military context, the appearance of bias
principle is derived from R.C.M. 902(a): “A military
judge shall disqualify himself . . . in any proceeding
in which that military judge’s impartiality might
reasonably be questioned.” The standard for
identifying the appearance is objective: “[a]ny
conduct that would lead a reasonable man knowing all
United States v. Sullivan, No. 15-0186/CG
the circumstances to the conclusion that the judge’s
impartiality might reasonably be questioned.”
Kincheloe, 14 M.J. at 50 (alteration in original)
(internal quotation marks omitted). As in the
civilian context, recusal based on the appearance of
bias is intended to “promote public confidence in the
integrity of the judicial process.” Liljeberg v.
Health Servs. Acquisition Corp., 486 U.S. 847, 858 n.7
(1988). “[W]hat matters is not the reality of bias or
prejudice but its appearance.” Liteky v. United
States, 510 U.S. 540, 548 (1994). In the military
justice system, where the charges are necessarily
brought by the commander against subordinates and
where, pursuant to Article 25, UCMJ, 10 U.S.C. § 825
(2006), the convening authority is responsible for
selecting the members, military judges serve as the
independent check on the integrity of the court-
martial process. The validity of this system depends
on the impartiality of military judges in fact and in
appearance.
Hasan v. Gross, 71 M.J. 416, 418-19 (C.A.A.F. 2012).
As noted by the majority, at the time of Sullivan’s trial,
the military judge was the only member of the United States
Coast Guard authorized to preside over general courts-martial.
It appears this situation is due to the Coast Guard’s relatively
small active-duty size. Nevertheless, “‘[a]n accused has a
constitutional right to an impartial judge,’” United States v.
Martinez, 70 M.J. 154, 157 (C.A.A.F. 2011) (citation omitted),
and there exists no exception for the Coast Guard because of its
small size. This, of course, is because
[t]he neutrality [of an impartial judge] required by
constitutional due process
helps to guarantee that life, liberty, or
property will not be taken on the basis of an
erroneous or distorted conception of the facts or
2
United States v. Sullivan, No. 15-0186/CG
the law. At the same time, it preserves both the
appearance and reality of fairness . . . .
. . . .
The appearance standard helps to enhance confidence in
the fairness of the proceedings because in matters of
bias, the line between appearance and reality is often
barely discernible.
United States v. Butcher, 56 M.J. 87, 90 (C.A.A.F. 2001)
(citation omitted).
Certainly “[p]ersonal relationships between members of the
judiciary and witnesses or other participants in the court-
martial process do not necessarily require disqualification.”
United States v. Norfleet, 53 M.J. 262, 270 (C.A.A.F. 2000).
Nevertheless, it remains important to remember that “the
interplay of social and professional relationships in the armed
forces poses particular challenges for the military judiciary.”
Butcher, 56 M.J. at 91. These challenges exist whether the case
is tried before members or before a military judge alone. See
United States v. McIlwain, 66 M.J. 312, 314 (C.A.A.F. 2008)
(“[I]f a judge is disqualified to sit as a judge alone, [s]he is
also disqualified to sit with members.”) (alteration in
original) (internal quotation marks and citation omitted). This
is because it “is well-settled in military law that the military
judge is more than a mere referee.” Id.
Unlike previous cases we have considered, the military
judge in this case had a personal or professional relationship
3
United States v. Sullivan, No. 15-0186/CG
with virtually every individual involved in the court-martial
process. The military judge recognized that these relationships
were significant when he spent eighteen pages of the record
listing them. Then, in response to written questions posed by
the government, the military judge continued on the record for
approximately fourteen more pages. For the next thirty-five
pages, the government and the defense verbally voir dired the
military judge. At the conclusion of voir dire, both parties
had sufficient concerns that they moved for the military judge
to recuse himself.
The voir dire also revealed a situation involving the
relationship between the military judge and the Coast Guard
TJAG. The military judge reported directly to TJAG, who signed
the military judge’s performance report. When it appeared that
TJAG might be called as a witness, the military judge made a
call to the Deputy Judge Advocate General (DJAG) to give TJAG a
“heads-up.” When asked by the defense whether the military
judge would have done that for any other witness, the military
judge replied “[p]robably not, because I don’t work for any
other witness.” Also of concern to an objective observer is the
fact that the military judge was in the same promotion pool as
Sullivan.1
1
While there is conflicting evidence regarding whether Sullivan
would remain in the promotion pool during the court-martial,
4
United States v. Sullivan, No. 15-0186/CG
Despite all of this, the military judge failed to recognize
that these multiple relationships would lead a reasonable
person, knowing all the circumstances, to the conclusion that
the military judge’s impartiality might reasonably be
questioned. United States v. Kincheloe, 14 M.J. 40, 50 (C.M.A.
1982). Instead, he stated he would seek out other potential
military judges from the sister services “as a matter of helping
both sides [to] find it easier to pick a court-martial panel”
and as “a matter of convenience.” When asked by the defense why
the military judge would do so if he did not believe there was a
problem, the military judge reiterated that it was a matter of
convenience.2 Under these circumstances a reasonable person,
knowing all the circumstances, might harbor doubts about
military judge’s impartiality. See Martinez, 70 M.J. at 158;
Butcher, 56 M.J. at 91.
assuming he was temporarily removed from the pool for the
pendency of the court-martial, a conviction would remove him
from the pool permanently.
2
While the military judge indicated that he would pursue this
informal attempt to remedy the situation, his efforts apparently
failed due to his insistence that the new military judge be
available for trial on certain dates. However, “[o]nce recused,
a military judge should not play any procedural or substantive
role with regard to the matter about which he is recused.”
United States v. Roach, 69 M.J. 17, 20 (C.A.A.F. 2010); see also
Walker v. United States, 60 M.J. 354, 358 (C.A.A.F. 2004) (“When
a judge is recused, the judge should not take action to
influence the appointment of his or her replacement.”). In
other words, any new judge appointed would be responsible for
determining an appropriate trial date.
5
United States v. Sullivan, No. 15-0186/CG
That said, this court has also “recognized that not every
judicial disqualification error requires reversal and has
adopted the standards the Supreme Court announced in Liljeberg
v. Health Services Acquisition Corp., 486 U.S. 847, 864 (1988),
for determining whether a judge’s disqualification under
28 U.S.C. § 455(a) (2000), warrants a remedy.” McIlwain, 66
M.J. at 315. The Liljeberg factors include: “1) the risk of
injustice to the parties, 2) the risk that the denial of relief
will produce injustice in other cases, and 3) the risk of
undermining public confidence in the judicial process.” Id.
It is the third Liljeberg factor that is relevant to this
inquiry. Is there a risk of undermining the public’s confidence
in the military justice system where the judge knows almost
everyone in the proceeding, is in the same promotion pool as the
accused, and has contacted his boss, who was a potential
witness, to give him a “heads-up”? I believe there is. Adding
to the lack of public confidence is that the matter could have
been resolved by making a formal request for a military judge to
the Judge Advocate General of a sister service. See Rule for
Courts-Martial 503(b)(3). The failure to remedy the issue when
it was relatively easy to do so could only create additional
doubt in the public’s mind.3
3
Another way of looking at the issue is to consider whether a
military judge in another service, without the size constraints
6
United States v. Sullivan, No. 15-0186/CG
For these reasons I believe that a reasonable person,
knowing all the circumstances, might reasonably question the
military judge’s impartiality. Consequently, the military
judge’s failure to recuse himself undermined public confidence
in the integrity of the military justice system. Accordingly, I
respectfully dissent from the majority as to Issue II.
of the Coast Guard, would have recused him/herself under similar
circumstances.
7