United States v. Roach , 2010 CAAF LEXIS 413 ( 2010 )

UNITED STATES, Appellee
v.
Charles S. Roach, Senior Airman
U.S. Air Force, Appellant
No. 07-0870
Crim. App. No. S31143
United States Court of Appeals for the Armed Forces
Argued January 25, 2010
Decided May 10, 2010
BAKER, J., delivered the opinion of the Court, in which EFFRON,
C.J., ERDMANN, STUCKY, and RYAN, JJ., joined.
Counsel
For Appellant: Dwight H. Sullivan, Esq. (argued); Major Shannon
A. Bennett (on brief).
For Appellee: Gerald Bruce, Esq. (argued); Colonel Douglas
Cordova, Lieutenant Colonel Jeremy S. Weber, and Captain G. Matt
Osborn (on brief); Captain Ryan N. Hoback.
Military Judge: Jennifer Whittier
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Roach, No. 07-0870/AF
Judge BAKER delivered the opinion of the Court.
A special court-martial composed of a military judge alone
convicted Appellant, pursuant to his pleas, of one specification
of dereliction of duty for willfully misusing his government
travel card and one specification of use of cocaine, in
violation of Articles 92 and 112a, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 892, 912a (2000). Appellant was
sentenced to a bad-conduct discharge, confinement for four
months, and reduction to pay grade E-1. The convening authority
approved the sentence as adjudged except for the confinement,
which was reduced to three months.
A panel of the United States Air Force Court of Criminal
Appeals (CCA), which included Chief Judge James R. Wise,
affirmed Appellant’s conviction and sentence, despite not having
received a brief from Appellant. United States v. Roach (Roach
I), No. ACM S31143, 2007 CCA LEXIS 402, at *3-*9, 2007 WL
2790660, at *1-*4 (A.F. Ct. Crim. App. Sept. 13, 2007). The
unpublished, per curiam opinion of the CCA stated:
While this Court is well aware of the appellant’s
constitutional and statutory rights to effective
counsel on appeal, that right is still subject to the
rules of this Court. . . . Lengthy delays in reaching
final resolution on adjudged punitive discharges in
straight-forward cases such as this case do not serve
either the interests of the accused or the interests
of the Air Force. Therefore this Court is taking
action sans a brief appellate counsel [sic].
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United States v. Roach, No. 07-0870/AF
2007 CCA LEXIS 402, at *3, 2007 WL 2790660, at *1 (citations
omitted).
This Court granted review of two issues in January 2008,
and remanded the case to the CCA six months later on the ground
that “the court below proceeded to decide the case without
taking the steps required under Bell and May” to ensure that
Appellant could be provided representation under Article 70,
UCMJ, 10 U.S.C. § 870 (2000). United States v. Roach (Roach
II), 66 M.J. 410, 419 (C.A.A.F. 2008).
The parties agree that during the pendency of Appellant’s
first appeal to this Court, Chief Judge Wise commented on the
case during two public events. The parties do not agree on what
was said by the Chief Judge or in what manner.1 Following the
Chief Judge’s remarks, Appellant moved for the recusal of the
CCA panel to which the case had been assigned on remand. Chief
Judge Wise withdrew from the case on August 22, 2008.
Subsequent to that recusal, Chief Judge Wise wrote to Colonel
1
The record contains two affidavits from audience members at
these events stating inter alia that Chief Judge Wise called the
Roach case a “test case” and that the CCA “attempted to ‘grab
power’ from CAAF.” Another affidavit included in the record
states that the Chief Judge explained “that there were two lines
of jurisprudence with regard to the issues in Roach. One . . .
supported the notion that [the CCA] had the power to decide the
issue, and the other undermined that notion.” Chief Judge Wise
also submitted an affidavit that expressed that he tried to
“drive home the point that even though we disagreed with our
superior court on a point of law, we follow its guidance and
direction even when it results in a loss of a tangible benefit
that otherwise would have accrued.”
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Craig A. Smith, the executive to the Judge Advocate General of
the Air Force (TJAG), recommending that TJAG designate Senior
Judge Francis as the chief judge for the Roach case.2 TJAG
appointed Senior Judge Francis the same day. Chief Judge
Francis then formed a special panel to consider Appellant’s case
and assigned himself to this panel.
Appellant did not learn of Chief Judge Wise’s
recommendation until April 14, 2009,3 and immediately moved to
replace Senior Judge Francis. The motion was denied, and that
same day, the CCA again affirmed Appellant’s conviction and
sentence. United States v. Roach (Roach III), No. ACM S31143 (f
rev), 2009 CCA LEXIS 159, at *50, 2009 WL 1514650, at *16 (A.F.
Ct. Crim. App. Apr. 24, 2009). Appellant now appeals to this
Court.4
2
In its entirety, the body of Chief Judge Wise’s e-mail stated:
I have recused myself from participating in the case
of U.S. v. Roach, ACM S31143. As a result, I request
that General Rives appoint Senior Judge Dave Francis
as the Chief Appellate Military Judge for this case
pursuant to Rule 1.3 of the United States Air Force
Court of Criminal Appeals Rules of Practice and
Procedure. I have attached a memorandum that, once
signed by General Rives, will accomplish this goal.
3
On December 31, 2008, Appellant moved to receive all
communications from the Chief Judge about his recusal, but the
CCA denied that part of the motion seeking communications made
after his recusal on August 25, 2008. Appellant obtained this
information in response to a Freedom of Information Act request.
4
We granted review on the following issues:
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The threshold question asks whether the chief judge of a
court of criminal appeals may recommend to the Judge Advocate
General an acting chief judge for a case in which the chief
judge is recused. For the reasons stated below we answer this
question in the negative, and we vacate the judgment of the CCA.
The case is remanded for a new Article 66, UCMJ, 10 U.S.C. § 866(2006), review by an independent panel.
DISCUSSION
Issue I: Actions after a Recusal
The question of whether a judge has acted consistent with a
recusal, as a mixed question of law and fact, is reviewed de
novo. See Walker v. United States, 60 M.J. 354, 356-57
(C.A.A.F. 2004) (performing a de novo review after granting a
I. WHETHER THE AIR FORCE COURT ERRED BY REFUSING TO
VACATE ITS RULING IN LIGHT OF THE ACTIONS OF THE
CHIEF JUDGE REGARDING THE APPOINTMENT OF HIS
REPLACEMENT AFTER HE HAD RECUSED HIMSELF.
II. WHETHER THE AIR FORCE COURT ERRED BY BASING ITS
SENTENCE DISPARITY ANALYSIS ON APPELLANT’S AND HIS
CO-ACTOR’S ADJUDGED SENTENCES RATHER THAN THEIR
APPROVED SENTENCES.
III. WHETHER THE AIR FORCE COURT ERRED BY DENYING
APPELLANT’S MOTION TO COMPEL PRODUCTION OF E-MAILS
SENT BETWEEN THE CHIEF JUDGE AND APPELLATE
GOVERNMENT COUNSEL ABOUT THIS CASE FOLLOWING THE
CHIEF JUDGE’S RECUSAL.
IV. WHETHER THE APPELLANT’S DUE PROCESS RIGHT TO
REASONABLY PROMPT APPELLATE REVIEW WAS DENIED BY THE
DELAY IN THIS APPEAL ARISING FROM THE AIR FORCE
COURT’S PROCESSING OF THIS APPEAL DURING ITS INITIAL
REVIEW.
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United States v. Roach, No. 07-0870/AF
petition for extraordinary relief). A recusal means the judge
“may not preside over any subsequent proceedings in the case or
perform any other judicial actions with respect to it.” Richard
E. Flamm, Judicial Disqualification: Recusal and
Disqualification of Judges § 22.1 (1996) (footnotes omitted).
Once recused, a military judge should not play any procedural or
substantive role with regard to the matter about which he is
recused. “When a judge is recused, the judge should not take
action to influence the appointment of his or her replacement.”
Walker, 60 M.J. at 358.
In Walker, the chief judge of the CCA had recused himself
and the clerk of the court asked TJAG to appoint a different
military judge to lead the reviewing panel. Id. at 355-56. The
chief judge then created a general policy to determine his
replacement when he was absent or recused. Id. at 356. The
substitute military judge retired a few weeks later and the CCA
followed the new court policy to replace him. Id. This Court
held that “[t]he chief judge, whose recusal remained in place,
promulgated the policy in the midst of the litigation from which
he was recused, and the impact on that litigation was readily
identifiable.” Id. at 358.
The parties in this case do not agree on what exactly Chief
Judge Wise might have said that formed the basis of his recusal.
Nor do they agree whether his recusal was required or
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prudential, or where this case sits in relation to Walker.
These disagreements, however, do not impact our ultimate
conclusion, for the record reflects several conclusive facts.
First, in response to the Chief Judge’s remarks, Appellant moved
for the recusal of the original CCA panel following this Court’s
remand. Second, the Chief Judge recused himself from the case
on August 22, 2008, and he did so without qualification and
without stating a reason. Third, subsequent to that recusal,
the Chief Judge recommended that TJAG designate Senior Judge
Francis as the chief judge for the Roach case. TJAG appointed
Senior Judge Francis the same day, and Chief Judge Francis then
formed a special panel to consider Appellant’s case.
Chief Judge Wise’s recommendation to TJAG to appoint Senior
Judge Francis was problematic for a number of reasons. First,
and foremost, he took a procedural step after his recusal.
Whether directly controlled by Walker or not, his actions were
inconsistent with the spirit of Walker. While Chief Judge Wise
was not promulgating a new policy, at a minimum his actions
created the appearance of directly impacting a case from which
he was recused. Second, Senior Judge Francis not only sat on
the case, he authored it. Third, concerns about perceptions of
impartiality in the military justice system are heightened where
a court of criminal appeals is asked to review not only the
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decision of a trial court, but as in this case, the actions
taken by a panel of the same court.
Having found an error in recusal, we must next determine
whether the error was structural in nature, and therefore
inherently prejudicial, or in the alternative, determine whether
the error was harmless under Liljeberg v. Health Services
Acquisition Corp., 486 U.S. 847 (1988). Although the line
between structural and nonstructural errors can be opaque, in
this case, counsel for Appellant conceded at oral argument that
the error was not structural in nature. We agree. Among other
things, Appellant had his case reviewed by a three-member CCA
panel composed of military judges appointed by the TJAG
consistent with applicable regulations. Therefore, in this case
we test for prejudice using the three Liljeberg factors. “[I]t
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.
The third Liljeberg factor is determinative in this case.
First, public confidence in the military judicial process is
undermined where judges act in cases from which they are
recused. This is true, whether the judge’s role is significant
or minimal. The record supports the CCA’s conclusion that “any
‘influence’ flowing from Chief Judge Wise’s ‘recommendation’ was
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at best minimal and resulted in no discernible prejudice to the
appellant.” Roach III, No. ACM S31143 (f rev) (A.F. Ct. Crim.
App. Apr 24, 2009) (ruling on Appellant’s motion to vacate).
Nonetheless, either a military judge is recused or he is not. A
military judge who acts inconsistently with a recusal, no matter
how minimally, may leave a wider audience to wonder whether the
military judge lacks the same rigor when applying the law.
Second, although there is no evidence indicating that the
second panel was actually influenced by Chief Judge Wise or
reached its judgment based on factors other than its best
judgment, confidence in the judicial process is surely
undermined where a recused judge recommends the military judge
who will subsequently review the recused judge’s prior conduct.
As noted above, in this case Senior Judge Francis not only
presided over the panel hearing Appellant’s case, he wrote the
opinion, concluding inter alia that the “chief judge’s
explanation [was] both reasonable and credible” regarding his
public statements. Roach III, 2009 CCA LEXIS 159, at *32, 2009
WL 1514650, at *10.
The appearance of impartiality may be especially important
in the military justice context. From an outsider’s
perspective, it might well appear that at a court-martial and at
the CCA, the critical players are invariably uniformed officers,
usually if not always from the same service, and in many cases
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drawn from what are relatively small communities of military
judge advocates. In this context, it is all the more important
for participants to engage in their assigned duties without
blurring legal and ethical lines; however well intentioned. See
United States v. Greatting, 66 M.J. 226, 232 (C.A.A.F. 2008).
Issue II: Sentence Disparity
Appellant next challenges the legal framework the lower
court applied to his sentence disparity claim. “The Courts of
Criminal Appeals are required to engage in sentence comparison
only ‘in those rare instances in which sentence appropriateness
can be fairly determined only by reference to disparate
sentences adjudged in closely related cases.’” United States v.
Sothen, 54 M.J. 294, 296 (C.A.A.F. 2001) (quoting United States
v. Ballard, 20 M.J. 282, 283 (C.M.A. 1985)). Adjudged sentences
are used because there are several intervening and independent
factors between trial and appeal –- including discretionary
grants of clemency and limits from pretrial agreements –- that
might properly create the disparity in what are otherwise
closely related cases.
In contrast, when the CCA is exercising its power over
sentence appropriateness generally, it may consider both
adjudged and approved sentences. In turn, this Court “review[s]
the sentence appropriateness decisions of the Courts of Criminal
Appeals for abuse of discretion” and may “order a de novo review
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when the lower court has erred as a matter of law.” United
States v. Hutchison, 59 M.J. 250, 251 (C.A.A.F. 2004); see
United States v. Lacy, 50 M.J.286, 288 (C.A.A.F. 1999).
However, we need not and do not apply these principles to
Appellant’s case. The issue of sentence disparity is moot
before this Court in light of our resolution of Issue I.
Issue III: Appellate Discovery Request
Appellant recognizes that his claim in Issue I warranted
some communication between Chief Judge Wise and the Government,
and led to the generation of an affidavit from Chief Judge Wise.
As a result, he next argues that any written communications
between Chief Judge Wise and the Government should be disclosed
to eliminate any appearance of unfairness during appellate
review and to allow Appellant to assess and argue prejudice with
respect to his case. He requests that this Court unseal the
communications and on remand direct the CCA to consider whether
Appellant was prejudiced by the denial of his discovery request.
In light of our decision to vacate based on Issue I, and our
disposition with respect to Issue IV, this issue is also moot.
The correspondence that occurred between Chief Judge Wise and
Government counsel is not relevant to the next CCA review, which
will be conducted by a new panel, and addresses only the
remaining pending issue of sentence disparity.
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Issue IV: Appellate Due Process
Whether an appellant’s due process right to a speedy post-
trial review has been violated is reviewed de novo. United
States v. Moreno, 63 M.J. 129, 135 (C.A.A.F. 2006). Under
Moreno, the Court need not consider the factors from Barker v.
Wingo, 407 U.S. 514, 530 (1972), unless there is a “facially
unreasonable delay.” 63 M.J. at 136. The Court established a
“presumption of unreasonable delay where appellate review is not
completed and a decision is not rendered within eighteen months
of docketing the case before the Court of Criminal Appeals.”
Id. at 142. The CCA released its first decision (Roach I)
approximately thirteen months after the case was docketed. On
its face, this does not constitute a threshold showing of
unreasonable delay warranting consideration of the additional
Barker factors.
However, Appellant argues that the CCA purposefully ignored
binding case law in an attempt to manipulate the law to reach a
desired result. Appellant contends these legal errors added
nineteen months of additional and unacceptable post-trial delay.
In the context of this argument, it is important to Appellant
not only that Chief Judge Wise commented on his case in public,
but also the manner in which he spoke. Likewise, Appellant
asserts that the e-mails requested above may bear on this
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question, although he cannot say how because he has not seen
them.
Whether, and how, a showing of “malicious delay” on the
part of an appellate judge might inform the Barker factors, is a
question for another day. In Roach I, the CCA identified a
tension between two distinct lines of jurisprudence; one based
on Moreno, emphasizing the importance of timely appellate
review, and one based on United States v. Bell, 11 C.M.A. 306(C.M.A. 1960), and United States v. May, 47 M.J. 478 (C.A.A.F.
1998), emphasizing the importance of an appellant’s opportunity
to be heard. In Roach II, this Court held that “[t]he error in
this case is that the court below proceeded to decide the case
without taking the steps required under Bell and May.” 66 M.J.
at 419. Prior to this Court’s decision in Roach II, the tension
between these earlier cases was unresolved. This is true
regardless of how Chief Judge Wise may or may not have described
the tension in public statements while Roach I was pending
before this Court. And it is true whether or not the CCA fully
identified and articulated the arguments on either side of the
issue in Roach I. Based on the foregoing, we conclude that the
opinion in Roach I does not implicate the concerns about
“malicious delay” raised by Appellant.
In conclusion, the case does not reach the threshold of
elapsed time to initiate review under Barker.
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CONCLUSION
The decision of the United States Air Force Court of
Criminal Appeals is vacated and the case is remanded for a new
review under Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2006),
before a new panel.
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