United States v. Moorefield , 2008 CAAF LEXIS 405 ( 2008 )

UNITED STATES, Appellee
v.
Daqric B. MOOREFIELD, Sergeant
U.S. Marine Corps, Appellant
No. 07-0503
Crim. App. No. 200600162
United States Court of Appeals for the Armed Forces
Argued March 10, 2008
Decided April 1, 2008
PER CURIAM
Counsel
For Appellant: Lieutenant Gregory W. Manz, JAGC, USN (argued);
Lieutenant Darrin W. S. MacKinnon, JAGC, USNR (on brief).
For Appellee: Colonel Louis J. Puleo, USMC (argued); Commander
Paul C. LeBlanc, JAGC, USN, and Major Tai D. Le, USMC (on
brief); Major Kevin C. Harris, USMC.
Military Judge: M. B. Richardson
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Moorefield, No. 07-0503/MC
PER CURIAM:
A general court-martial composed of officers and enlisted
members convicted Appellant, contrary to his pleas, of one
specification of making a false official statement in violation
of Article 107, Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 907 (2000);1 one specification of insubordination toward
a noncommissioned officer, in violation of Article 91, UCMJ, 10
U.S.C. § 891 (2000); one specification of attempting to strike a
military policeman in violation of Article 128, UCMJ, 10 U.S.C.
§ 928 (2000); five specifications of assault in violation of
Article 128, UCMJ; and one specification each of disorderly
conduct, soliciting crime, communicating a threat, and
impersonating a noncommissioned officer, in violation of Article
134, UCMJ, 10 U.S.C. § 934 (2000). The members sentenced
Appellant to a bad-conduct discharge, confinement for two years,
forfeiture of all pay and allowances, and reduction to the
lowest enlisted grade. The convening authority approved the
sentence and credited Appellant with 324 days for pre-trial
confinement. The United States Navy-Marine Corps Court of
Criminal Appeals (CCA) affirmed. United States v. Moorefield,
No. NMCCA 200600162 (N-M. Ct. Crim. App. Dec. 19, 2006) (per
curiam) (unpublished).
1
It is directed that the promulgating order be corrected to
reflect that Appellant pled not guilty to Charge I,
Specification 1 (as reflected in the Record of Trial at 59).
2
United States v. Moorefield, No. 07-0503/MC
DISCUSSION
The staff judge advocate (SJA) in this case, Colonel (Col.)
K, served as the military judge in an earlier, unrelated court-
martial of Appellant. Appellant argued that Col. K should have
been disqualified because his participation in the second court-
martial violated Rule for Courts-Martial (R.C.M.) 1106, Article
6, UCMJ, 10 U.S.C. § 806 (2000), and 28 U.S.C. § 455 (2000), and
required recusal.
The CCA rejected this argument. It recognized that R.C.M.
1106(b) and Article 6, UCMJ, bar a person from participating as
the SJA in the same case that he served as a military judge, but
held that because Appellant had not shown that the two trials in
which Col. K was involved were the same case, R.C.M. 1106(b) and
Article 6, UCMJ, did not apply. Moorefield, No. NMCCA
200600162, slip. op. at 3. We agree.
Appellant’s courts-martial occurred several years apart and
involved different victims and evidence. And Appellant points
to no specialized knowledge obtained by Col. K in the course of
the first court-martial, or knowledge of disputed evidentiary
facts in the second court-martial on the part of Col. K.2
Moreover, Appellant has not shown that anything Col. K, as SJA,
2
Thus, even assuming without deciding that 28 U.S.C. § 455(2000), which pertains to the disqualification of federal
justices, judges, and magistrates as defined in 28 U.S.C. § 451(2000), extends to an SJA, it did not require Col. K to
disqualify himself.
3
United States v. Moorefield, No. 07-0503/MC
did or did not do in the course of the second court-martial
prejudiced him. Under the facts of this case, Col. K acted as
SJA and military judge in cases involving Appellant that were
neither the same case for purposes of R.C.M. 1106 or Article 6,
UCMJ, nor the same matter, for purposes of Dep’t of the Navy,
Judge Advocate General Instr. 5803.1B, Professional Conduct of
Attorneys Practicing Under the Supervision of the Judge Advocate
General, Rule 1.12 (Feb. 11, 2000).
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed.
4