United States v. Martinez , 2011 CAAF LEXIS 520 ( 2011 )

UNITED STATES, Appellee
v.
Inez T. MARTINEZ Jr., Sergeant
U.S. Army, Appellant
No. 11-0167
Crim. App. No. 20080699
United States Court of Appeals for the Armed Forces
Argued May 24, 2011
Decided June 24, 2011
ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and BAKER and STUCKY, JJ., joined. RYAN, J.,
filed a separate opinion concurring in the result.
Counsel
For Appellant: Captain John L. Schriver (argued); Colonel Mark
Tellitocci, Colonel Imogene M. Jamison, Lieutenant Colonel Peter
Kageleiry Jr, Lieutenant Colonel Jonathan Potter, and Captain
Brent A. Goodwin (on brief).
For Appellee: Captain Stephen E. Latino (argued); Colonel
Michael E. Mulligan, Major Amber J. Williams, and Major Adam S.
Kazin (on brief).
Military Judge: Debra L. Boudreau and Thomas P. Molloy
This opinion is subject to revision before final publication.
United States v. Martinez, No. 11-0167/AR
Judge ERDMANN delivered the opinion of the court.
Sergeant Inez T. Martinez entered guilty pleas before a
military judge sitting as a special court-martial to absence
without leave in violation of Article 86, UCMJ, 10 U.S.C. § 886,
and to being drunk on station in violation of Article 134, UCMJ,
10 U.S.C. § 934 (as a lesser included offense of drunk on duty,
Article 112, UCMJ, 10 U.S.C. § 912). The military judge found
Martinez guilty in accordance with his pleas and sentenced him
to reduction to E-1, confinement for six months, and a bad-
conduct discharge. This case presents a unique issue concerning
the intervention of a supervising judge, who had been the
initial detailed judge of record, into Martinez’s trial. We
granted review of the following issue:
Whether a reasonable person would question the trial
judge’s impartiality when a senior military judge, who
appeared to have assisted the Government during trial,
entered the trial judge’s chambers during recesses and
deliberations, in violation of Appellant’s right to
due process.1
We conclude that while the conduct of the supervising judge
was improper, it did not materially prejudice Martinez’s
substantial rights, nor is he entitled to relief under the
criteria of Liljeberg v. Health Services Acquisition Corp., 486
U.S. 847 (1988). We therefore affirm the United States Army
Court of Criminal Appeals.
1
United States v. Martinez, 69 M.J. 490 (C.A.A.F. 2011) (order
granting review).
2
United States v. Martinez, No. 11-0167/AR
The Trial
The military judge at the time of trial was Judge Molloy, a
reservist. The issue before this court arose from the conduct
of Judge Molloy’s supervising judge, Judge Boudreau, during
Martinez’s trial. Judge Boudreau had initially been detailed as
the military judge in this case and had presided over Martinez’s
arraignment. In addition to being Judge Molloy’s supervising
judge, she was also his rater. During the providence inquiry,
Judge Boudreau sat behind the trial counsel in the spectator
section of the courtroom to observe Judge Molloy, as this was
his first court-martial as a military judge.
The record reflects that on at least two separate occasions
during the proceedings, Judge Boudreau privately communicated
with the trial counsel either orally or in writing.2 On one
occasion Judge Boudreau was observed passing a note to the trial
counsel, apparently informing him of a perceived deficiency in
the colloquy between Judge Molloy and Martinez. On another
occasion, Judge Boudreau asked the trial counsel to request a
recess, which he did. When Judge Molloy retired to his chambers
for the recess, he was followed by Judge Boudreau. Judge
Boudreau was also observed entering the chambers when the court
2
While there are some discrepancies between the defense
counsel’s allegations as to Judge Boudreau’s conduct and the
post-trial affidavits of Judge Boudreau and the trial counsel,
there is no dispute that some ex parte communication occurred
during the trial.
3
United States v. Martinez, No. 11-0167/AR
was closed for deliberations.3 There was no explanation on the
record as to Judge Boudreau’s supervisory status or the reason
for her presence in the courtroom. Although Martinez’s defense
counsel observed Judge Boudreau’s conduct during the trial, he
did not object. There is no evidence in the record that anyone
informed Judge Molloy of Judge Boudreau’s communications with
the trial counsel during the trial.4
Clemency Matters and Convening Authority Action
After trial, the staff judge advocate prepared his written
advice to the convening authority as required by Article 60,
UCMJ, 10 U.S.C. § 860, and Rule for Courts-Martial (R.C.M.)
1106. He recommended that the convening authority approve a
finding of incapacitation for duty through the prior wrongful
indulgence of alcohol, a violation of Article 134, UCMJ, rather
than the finding of guilty to the drunk on station offense. In
his response, Martinez’s defense counsel did not address the
staff judge advocate’s recommendation concerning the approval of
3
Judge Boudreau explained in her post-trial affidavit that her
office served a dual purpose as the judge’s chambers.
4
The lower court found that the evidence supports that during
the trial Judge Molloy somehow became aware of Judge Boudreau’s
communication with the trial counsel concerning a need for a
recess. Judge Molloy’s post-trial affidavit does state that “at
least once we took a recess because COL Boudreau needed to meet
with me.” This is the only indication in the record that Judge
Molloy was aware that Judge Boudreau may have asked the trial
counsel to request a recess. However, there is no evidence in
the record as to when or by whom Judge Molloy was provided that
information.
4
United States v. Martinez, No. 11-0167/AR
the incapacitation for duty charge.5 He did, however, allege
that the “unusual contact” between Judge Boudreau and trial
counsel during the trial had created an appearance of
partiality. Martinez’s defense counsel noted that he had not
objected to the conduct at trial, which he acknowledged was an
error on his part. As a remedy he requested that the convening
authority approve only 164 days of confinement, reduction to
Private E-1, and a bad-conduct discharge. In making this
request, the defense counsel noted that “the defense believes
that granting SGT Martinez’s modest request for clemency [would]
resolve this issue and remove it from further appellate
scrutiny.”
Before completing his addendum to his original
recommendation to the convening authority, the staff judge
advocate obtained an affidavit from the trial counsel. The
trial counsel acknowledged that Judge Boudreau had communicated
with him twice during the trial. Following his review of the
affidavit, the staff judge advocate advised the convening
authority that although he thought that Judge Boudreau and Judge
Molloy had acted impartially, he recommended that the convening
authority approve the requested clemency “to remedy any
appearance of partiality.” The convening authority took action
5
The clemency matters inaccurately refer to Sergeant Martinez
having been found guilty of “wrongful overindulgence of liquor”
in violation of Article 134, UCMJ.
5
United States v. Martinez, No. 11-0167/AR
consistent with the staff judge advocate’s advice, including the
approval of the incapacitation for duty through prior wrongful
indulgence of alcohol charge, and granted the clemency relief
requested by Martinez.
Decision by the Army Court of Criminal Appeals
Before the Court of Criminal Appeals, Martinez argued that
Judge Molloy should have recused himself under the provisions of
R.C.M. 902(a). He argued that a reasonable person would
question Judge Molloy’s impartiality as it appeared that Judge
Boudreau had been assisting the prosecution during the trial and
had then accompanied Judge Molloy into his chambers during the
recess and deliberations. United States v. Martinez, No. ARMY
20080699, slip op. at 9 (A. Ct. Crim. App. Oct. 7, 2010).6
The lower court assumed without deciding that Judge Molloy
committed plain error when he did not disqualify himself or
obtain a waiver, and then analyzed whether his failure to do so
required reversal under the standards set forth in Liljeberg.
After conducting an analysis consistent with Liljeberg the Court
of Criminal Appeals determined that reversal was not required.
However, the court went on to state that:
6
Although not an issue before this court, the Court of Criminal
Appeals also determined that the offense of incapacitation for
duty through the prior wrongful indulgence of alcohol was not a
lesser included offence of drunk on station. Accordingly, the
lower court set aside and dismissed that finding, reassessed the
sentence, and affirmed only 104 days of the confinement.
6
United States v. Martinez, No. 11-0167/AR
Notwithstanding our conclusions regarding the
merits of appellant’s allegation, we nonetheless find
this case troublesome. The circumstances which gave
rise to appellant’s challenge (i.e., communication
between the supervisory judge and trial counsel) could
easily have been avoided. Although we recognize and
appreciate the role of supervisory judges in
protecting the interests of an accused while providing
oversight of new military judges, the issues that
arose in appellant’s case could have been handled
differently to avoid the direct communication between
the supervisory judge and trial counsel. Although not
all ex parte communications between judges and counsel
are impermissible, in general most are. As a result,
regardless of motive, we caution members of the
judiciary and counsel alike to avoid ex parte
communications that might create demonstrations of
bias (R.C.M. 902(b)) or a perception of bias (R.C.M.
902(a)), regardless of motive. This ensures strict
compliance with the rules while maintaining and
promoting confidence in our judiciary and justice
system. In addition, once irregular contact between
the supervisory judge and trial counsel occurred there
should have been timely and full disclosure on the
record and the defense counsel allowed to inquire, as
appropriate, whether any basis for disqualification
existed. Only with a timely and full disclosure could
the defense counsel have made a decision regarding
waiver under R.C.M. 902(e). Finally, once the defense
counsel observed conduct he believed may give rise to
an issue under R.C.M. 902(a), he should have timely
raised the issue. See e.g., United States v. Burton,
52 M.J. 223, 226 (C.A.A.F. 2000) (noting failure of
the defense to challenge the impartiality of a
military judge may permit an inference that the
defense believes the military judge remained
impartial).
The appearance standard in R.C.M. 902(a) is
intended to promote public confidence in the integrity
of the judicial system. Moreover, as our superior
court noted in [United States v. ]Quintanilla, “[t]he
rule also serves to reassure the parties as to the
fairness of the proceedings, because the line between
bias in appearance and in reality may be so thin as to
be indiscernible.” [56 M.J. 37, 45 (C.A.A.F. 2001)]
(citations omitted). As a result, we caution judges
7
United States v. Martinez, No. 11-0167/AR
and counsel alike to exercise the diligence necessary
to preserve and promote that public confidence.
Martinez, No. ARMY 20080699, slip op. at 14-15 (citations
omitted).
Discussion
When an appellant, as in this case, does not raise the
issue of disqualification until appeal, we examine the claim
under the plain error standard of review. United States v.
Jones, 55 M.J. 317, 320 (C.A.A.F. 2001). Plain error occurs
when (1) there is error, (2) the error is plain or obvious, and
(3) the error results in material prejudice. United States v.
Maynard, 66 M.J. 242, 244 (C.A.A.F. 2008).
“An accused has a constitutional right to an impartial
judge.” United States v. Butcher, 56 M.J. 87, 90 (C.A.A.F.
2001) (quoting United States v. Wright, 52 M.J. 136, 140
(C.A.A.F. 1999)). R.C.M. 902 recognizes this right and
generally provides two bases for disqualification of a military
judge. R.C.M. 902(b) provides specific circumstances requiring
disqualification and is not at issue in this case. R.C.M.
902(a) provides for a general rule of disqualification for
certain appearances of partiality. See United States v.
Quintanilla, 56 M.J. 37, 45 (C.A.A.F. 2001). R.C.M. 902(a)
provides:
Except as provided in subsection (e) [authorizes
waiver of any disqualification under this subsection]
of this rule, a military judge shall disqualify
8
United States v. Martinez, No. 11-0167/AR
himself or herself in any proceeding in which that
military judge’s impartiality might reasonably be
questioned.
“[W]hen a military judge’s impartiality is challenged on
appeal, the test 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. United States v. Burton, 52 M.J. 223, 226 (C.A.A.F.
2000) (quotation marks omitted). The appearance of impartiality
is reviewed on appeal objectively and is tested under the
standard set forth in United States v. Kincheloe, i.e., “[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 is a basis for the judge’s
disqualification.” 14 M.J. 40, 50 (C.M.A. 1982) (quotation
marks omitted); see also Wright, 52 M.J. at 141; Quintanilla, 56
M.J. at 78. Because not every judicial disqualification
requires reversal, we have also adopted the standards announced
by the Supreme Court in Liljeberg to determine whether a
military judge’s conduct warrants that remedy to vindicate
public confidence in the military justice system. United States
v. Butcher, 56 M.J. 87, 92 (C.A.A.F. 2001).
The Errors
The record of trial demonstrates that Judge Boudreau
presided over Martinez’s arraignment and subsequently detailed
9
United States v. Martinez, No. 11-0167/AR
Judge Molloy as judge for Martinez’s trial. As noted, she was
also Judge Molloy’s rater and supervisory judge. Although Judge
Boudreau did not preside over Martinez’s trial, she continued to
have judicial responsibilities pursuant to R.C.M. 1104(a)(2) to
authenticate the portion of the record of the proceedings over
which she presided. In addition, she continued to have
administrative responsibility for the circuit judiciary in her
capacity as Chief Circuit Judge for the circuit in which the
court-martial was conducted and as Judge Molloy’s supervisor.7
These ongoing responsibilities required that Judge Boudreau
ensure that her conduct did not provide a basis to question
either her or Judge Molloy’s impartiality during Martinez’s
court-martial.
Rule 1.2 of the American Bar Association Model Code of
Judicial Conduct (Model Code) mirrored by the Code of Judicial
Conduct for Army Trial and Appellate Judges (Army Code) provides
that “A judge shall act at all times in a manner that promotes
public confidence in the independence, integrity, and
impartiality of the judiciary, and shall avoid impropriety or
the appearance of impropriety.” Paramount among Judge
Boudreau’s continuing ethical responsibilities, consistent with
7
See generally Dep’t of the Army, Reg. 27-10, Legal Services,
Military Justice ch. 8 (Nov. 16, 2005) (describing generally the
Army Trial Judiciary-Military Judge Program and the supervisory
responsibilities for Chief Circuit Judges).
10
United States v. Martinez, No. 11-0167/AR
the Model Code and pursuant to the Army Code, was to ensure
against improper ex parte communications and the appearance of
partiality. Specifically, Rule 2.9 provides a general
prohibition against initiating, permitting, or considering ex
parte communications involving substantive matters, except in
very limited circumstances. Judge Boudreau’s communications
with the trial counsel concerning the legal sufficiency of the
providence inquiry and/or the legal sufficiency of the inquiry
into the pretrial agreement involved substantive matters and it
was plain and obvious error for her to initiate those ex parte
communications with trial counsel during the trial. Compounding
this error, Judge Boudreau entered the judge’s chambers during a
recess she initiated as well as during the deliberations, and
failed to inform Judge Molloy that she had been communicating ex
parte with the prosecution.8 See supra note 4 and accompanying
text. We therefore share the concerns expressed by the Court of
Criminal Appeals cited earlier in this opinion.
As noted, when a military judge’s impartiality is
challenged on appeal under R.C.M. 902(a), “the test 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.” Burton, 52 M.J. at 226 (quotation
8
In this analysis it is not determinative whether the judge
actually knew of the facts creating the appearance of partiality
11
United States v. Martinez, No. 11-0167/AR
marks omitted). We consider this risk by applying an objective
standard, i.e., “any conduct that would lead a reasonable man
knowing all the circumstances to the conclusion that the judge’s
impartiality might reasonably be questioned.” Kincheloe, 14
M.J. at 50. A reasonable person knowing all the circumstances
would have observed Judge Boudreau privately conferring with the
trial counsel and then accompanying the presiding judge into his
chambers during recess and deliberations. Judge Boudreau’s
course of conduct under the circumstances created an appearance
that neither she nor Judge Molloy was impartial
Prejudice
In a plain error context we look to see if the error
materially prejudiced the substantial rights of the appellant9
and whether, under Liljeberg, reversal is warranted. We conduct
both inquiries even if we conclude that there is no Article
59(a) prejudice as it is possible that an appellant may not have
suffered any material prejudice to a substantial right, but that
reversal would still be warranted under Liljeberg.
We initially consider whether the error materially
prejudiced Martinez’s substantial rights.10 We first note that
the record does not support, and Martinez has not claimed, that
either Judge Boudreau or Judge Molloy was actually biased.
as long as the public might reasonably believe that he or she
knew. Liljeberg, 486 U.S. at 859-60.
9
Article 59(a), UCMJ, 10 U.S.C. § 859(a).
12
United States v. Martinez, No. 11-0167/AR
Therefore, we look to see if the appearance created by Judge
Boudreau’s conduct materially prejudiced Martinez. We find that
it did not.
The staff judge advocate’s initial post-trial advice to the
convening authority recommended that the sentence be approved as
adjudged. Martinez then submitted his clemency matters in which
he noted Judge Boudreau’s “highly unusual” actions and, as a
remedy, asked the convening authority to approve only 164 days
of the adjudged confinement, reduction to Private E-1, and a
bad-conduct discharge. In doing so, Martinez asserted that
granting the clemency request would resolve that issue and
remove it from further appellate scrutiny. This certainly
implied that if the clemency request was approved, it would
rectify any prejudice suffered by him. The convening authority
approved a sentence consistent with Martinez’s request.
Accordingly, we hold that under the circumstances of this case
Martinez’s substantial rights were not materially prejudiced.
We now apply the three-part test identified by the Supreme
Court in Liljeberg to determine if reversal is otherwise
warranted under the circumstances to vindicate the public’s
confidence in the military justice system. In Liljeberg, the
Supreme Court recognized that the purpose of 28 U.S.C. § 455(a),
the civilian counterpart of R.C.M. 902(a), is “to promote public
10
United States v. Powell, 49 M.J. 460, 463-465 (C.A.A.F. 1998).
13
United States v. Martinez, No. 11-0167/AR
confidence in the integrity of the judicial process.”
Liljeberg, 486 U.S. at 860. In furtherance of that purpose, the
Supreme Court held that in determining whether a judgment should
be vacated “it is appropriate to consider the risk of injustice
to the parties in the particular case, the risk that the denial
of relief will produce injustice in other cases, and the risk of
undermining the public’s confidence in the judicial process.”
Id. at 864, see also United States v. McIlwain, 66 M.J. 312, 315
(C.A.A.F. 2008); Butcher, 56 M.J. at 92-93; Quintanilla, 56 M.J.
at 80-81.
The first two parts of the Liljeberg test are not
implicated under the facts of this case. As to the first part,
the record does not support nor has Martinez identified any
specific injustice that he personally suffered under the
circumstances. Moreover, we also note that the confinement
adjudged by Judge Molloy was one month less that the maximum
agreed to by Martinez in his pretrial agreement. As to the
second part of the test, we conclude that this case is analogous
to United States v. Butcher where we stated that “[i]t is not
necessary to reverse the results of the present trial in order
to ensure that military judges exercise the appropriate degree
of discretion in the future.” Butcher, 56 M.J. at 93.
The third part of the Liljeberg test, however, requires
further discussion. Here we consider whether denying a remedy
14
United States v. Martinez, No. 11-0167/AR
to Martinez under the circumstances of this case will risk
undermining the public’s confidence in the military justice
system. We consider this risk by again applying an objective
standard similar to the standard applied in the initial R.C.M.
902(a) analysis. This analysis, however, differs from the
initial R.C.M. 902(a) inquiry in which appellate courts
determine whether the military judge should have recused himself
or herself. In the remedy analysis we do not limit our review
to facts relevant to recusal, but rather review the entire
proceedings, to include any post-trial proceeding, the convening
authority action, the action of the Court of Criminal Appeals,
or other facts relevant to the Liljeberg test.
This remedy analysis involves the public confidence in the
military justice system in the context of how that system
responds once it has been determined that a military judge was
disqualified under R.C.M. 902(a) and should have been recused.
That analysis must necessarily include a review of all post-
trial actions to evaluate how the public would perceive that
response. For example, if further proceedings provided an
explanation for a situation that occurred at trial, that may be
sufficient to minimize the risk that the conduct would undermine
the public’s confidence in the military justice system. If a
remedy is granted after further proceedings, that too would
impact the risk of undermining the public’s confidence.
15
United States v. Martinez, No. 11-0167/AR
On the other hand, if the appearance is created and is not
explained at trial, or if no remedy is granted, or if there was
a remedy that appears inadequate from the perspective of a
reasonable person, those facts would increase the risk that the
conduct (creating the appearance) would undermine the public’s
confidence in the military justice system. Here, viewing the
entire proceedings, including the trial, the clemency request,
the relief provided by the convening authority, and the
appellate proceedings before the lower court and before this
court, we are convinced that the public’s confidence in the
military justice system would not be undermined. To the
contrary, the proceedings in this case recognized the error and
fashioned an appropriate remedy. Under these circumstances we
believe that the public’s confidence in the military justice
system would not be undermined.
Decision
The decision of the United States Army Court of Criminal
Appeals is affirmed.
16
United States v. Martinez, No. 11-0167/AR
RYAN, Judge (concurring in the result):
While I agree with the majority that Judge Boudreau
should not have communicated with the trial counsel -- even
if it was only to ensure that the providence inquiry in a
guilty plea case with a pretrial agreement was done
correctly -- I write separately because it is unclear to me
why Judge Boudreau’s ethical violations dictate the recusal
analysis in this case. Judge Boudreau was not the trial
judge; Judge Molloy was. And it was Judge Molloy, the
trial judge, who conducted the providence inquiry, accepted
Appellant’s guilty plea, and sentenced him -- the matters
which any “reasonable person” aware of all the facts would
be concerned with. See United States v. Martinez, __ M.J.
__ (12) (C.A.A.F. 2011).
The issue we granted concerns “[w]hether a reasonable
person would question the trial judge’s impartiality” based
on the actions of the supervisory judge in this case.
United States v. Martinez, 69 M.J. 490 (C.A.A.F. 2011)
(order granting review). Therefore, in my view, the
recusal analysis should focus on whether a reasonable
person would question the impartiality of the trial
judge, so that disqualification of the trial judge was
necessary -- not whether the supervising or observing judge
acted inappropriately. And, as the majority acknowledges,
United States v. Martinez, No. 11-0167/AR
“[t]here is no evidence in the record that anyone informed
Judge Molloy of Judge Boudreau’s communications with the
trial counsel during the trial.” Martinez, __ M.J. at __
(4). Bootstrapping Judge Boudreau’s questionable actions
into a generalized recusal analysis based on her
supervisory role and duty to authenticate the arraignment
portion of the record under Rule for Courts-Martial
(R.C.M.) 1104(a)(2) seems a tenuous basis for finding that
the “court-martial’s legality, fairness, and impartiality
were put into doubt.” Martinez, __ M.J. at __ (9) (quoting
United States v. Burton, 52 M.J. 223, 226 (C.A.A.F. 2000)).
I respectfully concur in the result.
2