United States v. Khan

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 38962
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UNITED STATES
Appellee
v.
Husein G. KHAN
Senior Airman (E-4), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 20 July 2017
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Military Judge: Natalie D. Richardson.
Approved sentence: Bad-conduct discharge, confinement for 6
months, and reduction to E-2. Sentence adjudged 5 September
2015 by GCM convened at Eglin Air Force Base, Florida.
For Appellant: Major Annie W. Morgan, USAF.
For Appellee: Major Mary Ellen Payne, USAF; Major Meredith L.
Steer, USAF; Gerald R. Bruce, Esquire.
Before MAYBERRY, HARDING, and C. BROWN, Appellate Mili-
tary Judges.
Judge HARDING delivered the opinion of the court, in which Sen-
ior Judge MAYBERRY and Judge BROWN joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 18.4.
________________________
HARDING, Judge:
Contrary to his plea, Appellant was convicted by officer members of
one specification of sexual assault by causing bodily harm in violation
of Article 120(b), Uniform Code of Military Justice (UCMJ), 10 U.S.C. §
United States v. Khan, No. ACM 38962
920(b). 1 Appellant was sentenced to a bad-conduct discharge, confine-
ment for six months, and reduction to E-2. The convening authority ap-
proved the sentence as adjudged.
Appellant asserts three assignments of error (AOEs): 2 (1) the mili-
tary judge erroneously denied Appellant’s motion to prevent Govern-
ment consultation with Dr. GH given that Appellant’s trial defense
counsel had previously consulted with Dr. GH and that the convening
authority had provided Appellant a less qualified substitute; (2) the mil-
itary judge erred in denying a motion to dismiss the charges for a dep-
rivation of choice of counsel; and (3) the military judge abused her dis-
cretion when she denied Appellant’s motion to recuse herself. The is-
sues raised by Appellant’s second and third AOEs were previously
brought before this court as a Petition for Extraordinary Relief in the
Nature of a Writ of Mandamus and/or Prohibition, and denied. 3 Having
reviewed these matters anew along with Appellant’s first AOE, we find
no prejudicial error and affirm.
I. BACKGROUND
While deployed to Al Udeid Air Base, Qatar, in early 2013, Appel-
lant met and befriended Senior Airman (SrA) AR. SrA AR occasionally
visited Appellant in his dorm room. During one such visit, Appellant
and SrA AR engaged in sexual intercourse. While SrA AR testified at
trial that she had no recollection of the sequence of events leading to
the sexual intercourse, she does recall telling Appellant to stop. Alt-
hough Appellant initially denied any sexual activity with SrA AR when
interviewed by Air Force Office of Special Investigations (AFOSI), he
eventually admitted that he had sexual intercourse with SrA AR that
1Appellant was acquitted of a charge and specification of making a false official
statement in violation of Article 107, UCMJ, 10 U.S.C. § 907.
2 Although not asserted as an AOE, Appellant by way of a footnote brought to
the court’s attention a 9-day violation of the 120-day post-trial processing
standard. Appellant does not assert prejudice but requests we grant “modest”
relief under United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002). We decline to
do so. In making our assessment, we are guided by factors enumerated in
United States v. Gay, 74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J.
264 (C.A.A.F. 2016), with no single factor being dispositive.
3United States v. Khan, Misc. Dkt. No. 2015-03, 2015 CCA LEXIS 355 (A.F.
Ct. Crim. App. 24 Aug. 2015) (unpub. op.).
2
United States v. Khan, No. ACM 38962
evening. Appellant further admitted that she told him to stop but that
he “didn’t stop for a minute or two.”
II. DISCUSSION
A. Disqualification of Government’s Expert Consultant
Appellant’s original military defense counsel 4 determined that ex-
pert assistance from a forensic psychologist was necessary to defend
Appellant. He contacted Dr. GH to discuss his availability as an expert
for Appellant and shared some details about the case. Defense counsel
then requested the convening authority appoint Dr. GH as Appellant’s
confidential expert consultant. The convening authority denied the re-
quest due to Dr. GH’s unavailability for the initial trial date. Instead,
the convening authority appointed Dr. MZ as the Defense expert con-
sultant. Shortly after the denial of the Defense request for Dr. GH and
the appointment of Dr. MZ, the Defense submitted a motion for contin-
uance to accommodate the schedule of Appellant’s newly-obtained civil-
ian counsel, WC. The motion for continuance was granted and the trial
date rescheduled. By the time the case went to trial nearly eight months
later, the Government, due to an emergent potential disqualification of
their expert consultant, obtained Dr. GH as its expert consultant for
Appellant’s case.
Appellant argues that the Government should not have been al-
lowed to consult with Dr. GH due to the prior discussions between
Dr. GH and his original military defense counsel. Appellant asserts
that Dr. GH had a conflict of interest. Appellant also asserts that
Dr. MZ’s qualifications were not reasonably similar to those of Dr. GH,
and therefore Dr. MZ was not an adequate substitute. Finally, Appel-
lant claims that “the [G]overnment gamed the denial of the [D]efense
request [for Dr. GH] in order to secure an expert more qualified that
Dr. MZ” and that the “surreptitious choice to hire Dr. GH as their own
expert was fundamentally unfair to Appellant and . . . resulted in a
court-martial that, at a minimum, appeared unjust.” For these reasons,
Appellant avers that the military judge erred in denying his motion to
disqualify Dr. GH from consulting with Government counsel. We disa-
gree.
4Due to his separation from the United States Air Force in the fall of 2014, the
original military defense counsel was released by Appellant before the case
went to trial.
3
United States v. Khan, No. ACM 38962
A military judge’s denial of a motion to disqualify an expert is re-
viewed for an abuse of discretion. United States v. Barron, 52 M.J. 1, 6
(C.A.A.F. 1999). Likewise, a military judge’s decision on a request for
expert assistance is also reviewed for an abuse of discretion. United
States v. Ford, 51 M.J. 445, 455 (C.A.A.F. 1999). “A military judge
abuses his discretion when: (1) the findings of fact upon which he pred-
icates his ruling are not supported by the evidence of record; (2) if in-
correct legal principles were used; or (3) if his application of the correct
legal principles to the facts is clearly unreasonable.” United States v.
Ellis, 68 M.J. 341, 344 (C.A.A.F. 2010) (citing United States v. Mackie,
66 M.J. 198, 199 (C.A.A.F. 2008)).
The military judge made detailed findings of fact that are well-sup-
ported by the record and we adopt them as our own. Foundational to
Appellant’s conflict of interest argument is that Dr. GH “consulted”
with his original defense counsel and implicitly that such communica-
tions were covered by the attorney-client privilege. This argument fails
as Appellant’s counsel did not reveal to Dr. GH any attorney-client priv-
ileged or confidential communications with Appellant nor discuss any
detailed case strategy. After reviewing the statements and other infor-
mation regarding SrA AR, Appellant’s counsel determined that expert
assistance from a forensic psychologist was necessary and contacted
Dr. GH to determine his availability. The defense counsel relayed to
Dr. GH limited information about the case from SrA AR and Appellant’s
statements to investigators. The information discussed mirrored the
substance of the written request for appointment of Dr. GH submitted
to the convening authority. Dr. GH in turn provided an email detailing
his schedule. The characterization of Dr. GH’s communication with Ap-
pellant’s counsel as a “consultation” misses the mark. On the facts of
this case, we agree with the military judge’s conclusions that the initial
discussions about Dr. GH’s schedule and whether he could provide ex-
pert assistance were not privileged or confidential communications and
that Dr. GH was not conflicted from consulting with the Government.
Appellant further argues that Dr. MZ’s qualifications were not rea-
sonably similar to those of Dr. GH and thus the military judge erred by
permitting the Government to consult with Dr. GH.
Article 46, UCMJ, 10 U.S.C. § 846, accords the Defense “equal op-
portunity to obtain witnesses” as the Government. The United States
Court of Appeals for the Armed Forces has noted that “[p]roviding the
defense with a ‘competent’ expert satisfies the Government’s due pro-
cess obligations, but may nevertheless be insufficient to satisfy Article
46 if the Government’s expert concerning the same subject matter area
4
United States v. Khan, No. ACM 38962
has vastly superior qualifications.” United States v. Warner, 62 M.J.
114, 119 (C.A.A.F. 2005). The court further stated:
Article 46 is a clear statement of congressional intent
against Government exploitation of its opportunity to ob-
tain an expert vastly superior to the defense’s. Requiring
that an “adequate substitute” for a defense-requested ex-
pert have professional qualifications at least reasonably
comparable to those of the Government’s expert is a
means to carry out that intent where the defense seeks
an expert dealing with subject matter similar to a Gov-
ernment expert’s area of expertise and where the defense
expert is otherwise adequate for the requested purpose.
Id. at 120.
In support of his argument that Dr. MZ was inadequate when com-
pared to Dr. GH, Appellant asserts that Dr. MZ, “having only partici-
pated in five military courts-martial . . . did not possess a competent
working knowledge of military rules of evidence and/or military courts.”
Dr. GH, on the other hand, “based on his numerous consultations with
both government and defense in military courts-martial . . . demon-
strated a working knowledge of the military rules of evidence and was
able to tailor his testimony to the idiosyncrasies of a military trial.” No-
tably, Appellant has not argued that Dr. MZ was inferior to Dr. GH re-
garding any other qualification of a forensic psychologist. The military
judge compared the qualifications of both experts and found that while
Dr. MZ had less experience than Dr. GH consulting in military courts-
martial, “Dr. GH [was] neither superior nor vastly superior to Dr. MZ
in qualifications” in the field of forensic psychology. We agree with the
military judge that Dr. MZ was reasonably comparable to Dr. GH.
Finally, Appellant argues that the Government “gamed” the process
in order to deny Dr. GH to the Defense and to gain the benefit of his
services for themselves. This claim, however is not supported by the
chronology of events. The denial of Dr. GH for Appellant was based
upon his unavailability for the initial trial date in July 2014 and the
Government only retained Dr. GH in January 2015 after it determined
that their original consultant had been exposed to the immunized tes-
timony of Appellant in another trial.
The initial trial date in this case was 22 July 2014. Dr. GH had pro-
vided a schedule which showed that he was to be on a family vacation
the week of 21 July 2014. Further, prior to the denial, a military justice
paralegal confirmed with Dr. GH that he would not be available on the
5
United States v. Khan, No. ACM 38962
initial trial date due to his vacation. Dr. MZ represented that he was
available for the initial trial date. Subsequent to the denial of the re-
quest for Dr. GH and appointment of Dr. MZ, Appellant requested and
was granted a continuance based on the schedule of his newly-retained
civilian counsel. Notably, Appellant did not renew his request for
Dr. GH in light of the continuance and new trial date. Nor did he claim
that Dr. MZ was an inadequate substitute until filing his motion to pre-
vent the Government from consulting with Dr. GH.
Meanwhile, the Government had retained Dr. MC as its expert con-
sultant for this case. Dr. MC, however, served as a Government expert
in a related case tried in November 2014 where Appellant testified un-
der a grant of immunity. Realizing that Dr. MC might be subject to dis-
qualification for having heard Appellant’s immunized testimony during
that trial, the Government decided to request a different expert consult-
ant on 13 January 2015. Dr. GH was available for the February 2015
trial dates in Appellant’s case and appointed to the Government as their
expert consultant.
Contrary to Appellant’s assertion that the Government “gamed” the
process in order to obtain the services of Dr. GH, his eventual appoint-
ment to the Government was the product of his unavailability on the
initial July 2014 trial date and availability for trial in February 2015
after the Government determined it needed a consultant to replace
Dr. MC. Arguably, it may have been the more prudent course for the
Government to obtain a replacement expert other than one that Appel-
lant had previously requested and the convening authority denied,
thereby completely avoiding any possible appearance or perception of
unfairness. 5 On the facts of this case, however, we find no violation of
either the letter or spirit of Article 46, UCMJ, nor unfairness to Appel-
lant.
B. Deprivation of Choice of Counsel and Failure to Recuse
The genesis of both of the second and third AOE primarily lie in the
single question, “Because of IAC?” asked of trial defense counsel by the
military judge during an Article 39a, UCMJ, session held the morning
of day four of the trial. The Article 39a session concerned the admission
5 “Courts-martial must not only be just, they must be perceived as just. The
requirement of Article 46, UCMJ, for equal access to witnesses and evidence
secures that just result and enhances the perception of fairness in military
justice.” United States v. Lee, 64 M.J. 213, 218 (C.A.A.F. 2006).
6
United States v. Khan, No. ACM 38962
of a pretext phone call between SrA AR and Appellant. Prior to this
session, the trial counsel had expressed the intention to offer the audio-
recording of the pretext call into evidence. Before the recording could be
admitted, redactions were required to conform the recording to the mil-
itary judge’s ruling under Mil. R. Evid. 412. 6 To that end, both trial and
defense counsel had spent several hours the prior evening attempting
to prepare a redacted version of the recording that complied with the
ruling. At the Article 39a session, the trial counsel announced the Gov-
ernment no longer intended to offer the recording into evidence and
would instead call a military investigator to testify about statements
made during the pretext call. Appellant’s civilian counsel indicated the
Defense did not yet have a position on whether it objected to this plan.
The trial counsel then asked for a ten-minute recess, after which the
agent would testify about the pretext call. The following exchange then
occurred:
DC: Judge, with all due respect, . . . we have a reasonable
expectation of taking the government [sic] when they say
they’re going to put a piece of evidence in their case. We
spent last night, hours, working on a redaction of the pre-
text phone call. We walk in this morning, the government
says well now we’re not going to put on the pretext phone
call. . . . I have a reasonable expectation of being able to
rely on what my opposing counsel tells me. Ten minutes
is not enough time to adjust fire to that. It’s just not. It’s
not fair to my client. We need a chance then, okay. We
were operating under the premise that there’s going to be
a pretext phone call. We’re all working towards a 95 per-
cent solution. I thought we had a 95 percent solution. Ten
minutes . . . is not enough time for me to be able to say
okay this is good or this is not good. We’re getting to the
point where, you know, much like with the Ambien issue 7
a couple of days ago where Ambien was the big issue in
the case. Now Ambien is not an issue in the case. I mean
6The military judge had ruled that certain evidence regarding the victim’s
prior sexual behavior was inadmissible and some of this material was present
on the recording of the pretext phone call.
7Evidence of ingestion of Ambien by SrA AR and its potential effects on her
prior to and while visiting Appellant’s dorm had previously been a potential
prosecution theory based on victim incapacity to consent.
7
United States v. Khan, No. ACM 38962
we’re getting to the point where my client is not getting
a fair trial [i]n our opinion, with all due respect.
MJ: Well, it sounds like if he’s not, it’s because –
TC: Your Honor, can I say something?
MJ: Before I do?
TC: Yes, Your Honor.
MJ: Go ahead.
TC: Your Honor, the government also spent hours last
night figuring out whether and how we’re going to put in
a pretext phone call. We’re certainly allowed to change
gears and decide what evidence we want to put on or not
put on at any point. The question is simply whether the
defense has an objection to our method of proof.
MJ: This is what I see. You guys have discovery. You have
notice of witnesses. You know what potential evidence
there is and that you both should be prepared to adjust
for changes in those things. This isn’t something new.
The pretext [call] is out there. They’ve chosen a different
way to put it in. I don’t understand why it would take a
long time for you to be able to adjust to the government
changing their presentation of evidence.
DC: Because it affects the way that we are going to oth-
erwise approach the case, potentially. It may not take
this long.
MJ: That’s what happens in litigation.
DC: I understand that, Judge. And if the fault’s on me,
then fine, the fault’s on me. But my client deserves a fair
trial and we’re getting close to the point of where, respect-
fully, I don’t think he’s getting one.
MJ: Because of IAC? 8
DC: If that’s the issue, Judge, then you know—
MJ: Well, I’m asking you?
8 “IAC” is generally understood by attorneys to refer to “ineffective assistance
of counsel” as described in the Supreme Court’s decision in Strickland v. Wash-
ington, 466 U.S. 668 (1984).
8
United States v. Khan, No. ACM 38962
DC: I don’t know what the issue is, Judge. But, I mean,
we’ve got a 412 ruling that says all this stuff is coming in
and now we’re being told well, maybe it’s not going to
come in. I’ve got [the] government telling me Ambien is
the nature of this case. No, Ambien is not the nature of
the case. . . . [Y]es, we have prepared a case. We prepared
a case based on what we reasonably expected was going
to come into evidence in this case. That’s not what’s hap-
pening. I’m not saying that that doesn’t happen in trials.
I understand that happens in trials. But we’re putting in
eighteen hour days since Saturday to give our client the
best defense possible and we need some time to adjust
fire now that things have changed a little bit. It’s not my
fault that the government didn’t come into court with a
video ready to go. . . . The government is the one who puts
in the video. The government then says we object to your
[Mil. R. Evid.] 412 motion. Okay. Then we should have
walked into court on Monday or Tuesday with a video
with [the Mil. R. Evid.] 412 portions redacted; a couple of
different versions. That’s not unreasonable. That’s not on
us. That’s not why this case is being delayed the way it
is. So an extra few minutes for my client when he’s got
everything in the world on the line, I don’t believe is un-
reasonable.
MJ: Well, I don’t agree that that’s how the [Mil. R. Evid.]
412 and the video played out. In fact, I think your co-
counsel admitted that you all failed to argue—
DC: On one portion.
MJ: —the redaction of the video in your [Mil. R. Evid.]
412 motion; especially when I asked how is this going to
come in. So how much of a continuance would you like?
DC: Thirty minutes, Judge.
MJ: All right. . . . So where it stands now is that the de-
fense has requested a recess for thirty minutes before the
government can continue its case. I’ll take those thirty
minutes to decide on [the admission of] the video. I’m not
sending the members away. We’re going to continue with
them, at least through this next witness and then take a
break. The video, if any, will be after the lunch break.
9
United States v. Khan, No. ACM 38962
And it might be an extended lunch break based on the
editing.
Appellant conferred with his two defense counsel during the recess
that ensued. According to Appellant’s later testimony, 9 he personally
observed and described his military defense counsel to be “shocked” af-
ter the military judge’s question regarding “IAC” and as having a deer
in the headlights look. Appellant stated, “[i]t was not the look you would
want on your lawyer’s face in the middle of a court case.” Appellant de-
scribed Mr. WC as being “very frustrated and upset” based on what had
just occurred in the courtroom. Appellant asked Mr. WC what “IAC”
meant, and Mr. WC explained to him that “it was a legal term for inad-
equate counsel.” Mr. WC further told Appellant that the judge said de-
fense counsel “were not performing their duties as they should. They
were inadequate.” Appellant again described Mr. WC as very upset. Ap-
pellant further testified that Mr. WC explained that “the term IAC is
like a legal unicorn” and that “it doesn’t happen.” According to Appel-
lant, Mr. WC was sad about being in the courtroom and said maybe he
was getting too old to practice law. Appellant testified that, “[a]fter
watching what had happened and seeing how the lawyers reacted to it,
I did not have any more confidence in them. It was kind of scary because
it’s my life on the line over here.”
Several Rule for Courts-Martial (R.C.M.) 802 conferences were held
where the parties and military judge discussed Appellant’s desire to re-
lease his defense counsel and a potential continuance in the court pro-
ceedings. Later that day at an Article 39(a) session, the military judge
asked Appellant whether he wanted to release his counsel. Appellant
said yes and, when asked why, responded:
Well, ma’am, based on what was discussed during this
case and prior work that had been done during this case
. . . I don’t feel like they can adequately represent me.
In response, the military judge informed the parties that the prior
evening she had told a fellow trial judge that the civilian attorney was
among the best civilian defense counsel she had seen and that she still
believed that to be true. She also relayed that “nothing that I saw . . .
gives me pause about . . . either defense counsel’s representation of the
accused in this case.” She further observed that although she “may bark
9 Appellant testified at a later motions hearing to decide among other issues
the motion to dismiss the charges for a deprivation of choice of counsel and the
motion for the military judge to recuse herself.
10
United States v. Khan, No. ACM 38962
and cause counsel to provide me more explanation about things,” she
had given the defense additional time to prepare its response to the gov-
ernment’s change in strategy even though she “may not have liked it
and . . . may have shown that on the record . . . .” Based on what she
had observed during the trial proceedings, the military judge informed
Appellant she had not seen anything that would lead her to believe ei-
ther defense counsel “have been anything other than fully effective.”
She recognized, however, that she did not know everything Appellant
knew about his counsel and their preparation.
Notwithstanding the military judge’s efforts to ensure that Appel-
lant understood she had merely asked a question in response to the
comments by his counsel and that she believed his counsel to be effec-
tive, Appellant nonetheless maintained that he wanted to release both
his civilian and military defense counsel. The military judge immedi-
ately approved the release of Mr. WC and set the effective day of release
of the detailed military defense counsel to match the date when new
military counsel was detailed. A successor military attorney was de-
tailed and Appellant retained a new civilian attorney. When the court
reconvened on 24 April 2015, Appellant’s new Defense team argued the
motions to dismiss the charges for a deprivation of choice of counsel and
for recusal of the military judge.
1. Deprivation of Choice of Counsel
Appellant contends the military judge’s “because of IAC?” question
“set off a chain of events that led to the wrongful severance of [his] coun-
sel of choice.” He contends that, regardless of what the military judge
intended, this question’s negative impact on the fairness of his trial re-
quired dismissal of the charges or a mistrial. We disagree. Given that
the civilian defense counsel’s statement that Appellant was “close to not
getting a fair trial” was preceded by one that implicated his perfor-
mance as defense counsel, to wit: “if the fault’s on me, then fine, the
fault’s on me,” the military judge’s inquiry into what counsel meant by
that was reasonable. The military judge merely asked a question; it was
not framed as an accusation. Finally, to the extent that it was perceived
by Appellant as a negative comment by the military judge about his
counsel’s performance, the military judge made clear on the record that
she believed his counsel were effective.
We review issues affecting the severance of an attorney-client rela-
tionship de novo. United States v. Blaney, 50 M.J. 533, 539 (A.F. Ct.
Crim. App. 1999) (citing United States v. Iverson, 5 M.J. 440 (C.M.A.
11
United States v. Khan, No. ACM 38962
1978)). Under the Sixth Amendment, the accused in a criminal proceed-
ing has the right to the assistance of counsel. 10 The “core purpose of the
counsel guarantee was to assure ‘[a]ssistance’ at trial, when the accused
was confronted with both the intricacies of the law and the advocacy of
the public prosecutor.” United States v. Ash, 413 U.S. 300, 309 (1973).
The Supreme Court accordingly explained:
[W]hile the right to select and be represented by one’s
preferred attorney is comprehended by the Sixth Amend-
ment, the essential aim of the Amendment is to guaran-
tee an effective advocate for each criminal defendant ra-
ther than to ensure that a defendant will inexorably be
represented by the lawyer whom he prefers.
Wheat v. United States, 486 U.S. 153, 159 (1988); see also Morris v.
Slappy, 461 U.S. 1, 14 (1983) (“[W]e reject the claim that the Sixth
Amendment guarantees a ‘meaningful relationship’ between an ac-
cused and his counsel.”). Similarly, under the UCMJ, an accused has
the right to representation by civilian and military counsel. Article
38(b)(3), UCMJ, 10 U.S.C. § 838(b)(3). The right to counsel of choice
under the Sixth Amendment, as well as under the UCMJ, is not abso-
lute and is circumscribed in certain respects. Wheat, 486 U.S. at 159
United States v. Rhoades, 65 M.J. 393, 394 (C.A.A.F. 2008). For exam-
ple, “‘[t]he need for the fair, efficient, and orderly administration of jus-
tice’ may outweigh the interest of the accused in being represented by
his counsel of choice.” Rhoades, 65 M.J. at 394; see United States v.
Thomas, 22 M.J. 57, 59 (C.M.A. 1986); see also Wheat, 486 U.S. at 160(holding the right to select and be represented by one’s preferred attor-
ney may be outweighed by the judicial system’s “independent interest
in ensuring that criminal trials are conducted within the ethical stand-
ards of the profession and that legal proceedings appear fair to all who
observe them”).
In this regard, a military judge “has a responsibility to raise ‘on
his . . . own initiative, at all appropriate times and in an appropriate
manner,’ any matter which may promote justice at the trial.” United
States v. Hanson, 24 M.J. 377, 379 (C.M.A. 1987) (quoting ABA Stand-
ards, Special Functions of the Trial Judge, Standard 6-1.1(a) (1982)).
This duty includes ensuring effective counsel for an accused. In Hanson,
the military judge stated on the record that the detailed defense coun-
sel’s performance fell “below the minimum essential standards neces-
sary to an adequate defense.” Id. at 378. The military judge relieved the
10 U.S. CONST. amend. VI.
12
United States v. Khan, No. ACM 38962
defense counsel as detailed defense counsel and indicated that another
military counsel should be detailed. The military judge did not sever the
attorney-client relationship but left it to the appellant in that case
whether to release his original counsel. The United States Court of Mil-
itary Appeals concluded the military judge had “acted within the
bounds of his authority to insure a fair trial” and further found “that
the actions had no chilling effect on the legal representation provided
appellant.” Id. at 380.
The military judge in this case likewise acted within the bounds of
her authority and did not cause a wrongful severance of Appellant from
his counsel. Nonetheless, according to Appellant’s testimony on the mo-
tions, the defense team had an adverse reaction to the military judge’s
question, apparently believing she had said they were performing inad-
equately. The military attorney was uncertain about what to do next
while the civilian defense attorney became dejected to the point that he
questioned his future in the law. Understandably, this caused Appel-
lant to question whether his attorneys should continue to represent
him. He ultimately lost confidence in them and voluntarily released
them from further representation, even after the military judge compli-
mented his civilian attorney and told Appellant she had observed his
counsel to be “fully effective” so far in the trial. When he asked to re-
lease the counsel, Appellant told the military judge that his decision to
release them was based in part on “prior work that had been done in
the case.” The military judge did not ask the Appellant on the record to
elaborate on this aspect of his dissatisfaction. The military judge then
allowed the Appellant to release his counsel.
Given this, we find the actions of the military judge did not deprive
Appellant of his counsel of choice. While she could have simply asked
the defense counsel to clarify what he meant and avoided mention of
IAC at all, her discussion with the defense counsel was not objectively
unreasonable. It clearly was not intended to be an accusation that the
counsel were ineffective. Nor was it intended to interfere with the Ap-
pellant’s relationship with them as she made abundantly clear on the
record once informed of Appellant’s desire to release his counsel. Nev-
ertheless his counsels’ reaction to this exchange with the military judge,
along with his concern about “prior work that had been done during the
case,” led Appellant to lose confidence in their ability to continue as his
attorneys. Appellant then chose to voluntarily release them from fur-
ther representation. Under these circumstances, the military judge did
not deprive the Appellant of his counsel of choice.
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United States v. Khan, No. ACM 38962
2. Recusal
Finally, Appellant avers the military judge abused her discretion
when she denied Appellant’s motion to recuse herself. We disagree. We
review a military judge’s refusal to recuse herself for an abuse of discre-
tion. United States v. Butcher, 56 M.J. 87, 90 (C.A.A.F. 2001).
In addition to the “IAC” question, Appellant also testified at the mo-
tions hearing that he believed that the military judge was treating the
Government counsel and his counsel differently; that she was “harping
on them” more than the Government. Appellant believed that even
though the Government was not prepared for certain things, the mili-
tary judge just allowed them to “skate by,” as opposed to his lawyers
who were “harped on about what they were doing.” Contrary to the Ap-
pellant’s perception, the military judge hardly let the Government
“skate by” when the Government was not ready to call its first witness
in the trial before members. The military judge asked trial counsel “so
you just think I should take a break while you get your case together?”
She then chastised the Government in front of the members for its “poor
planning” and told counsel she expected them to do better. Her concerns
about the slow pace of the trial were communicated to both sides. On
another occasion the military judge openly doubted that the Govern-
ment was ready to finish its case, an implication trial counsel took issue
with. Notably, in contrast to a couple of occasions with criticism tar-
geted at the Government, none of the military judge’s comments at is-
sue toward trial defense counsel occurred on the record in front of mem-
bers.
Questioning of defense counsel by a trial judge is not uncommon,
not inappropriate, and not evidence of bias. Cf. Liteky v. United States,
510 U.S. 540, 555 (1994) (“[J]udicial remarks during the course of a trial
that are critical or disapproving of, or even hostile to, counsel, the par-
ties, or their cases, ordinarily do not support a bias or partiality chal-
lenge.”); United States v. Gray 51 M.J. 1, 51–52 (C.A.A.F. 1999) (finding
military judge’s criticism of defense counsel’s failure to interview possi-
ble defense witnesses and statement that defense counsel was unable
to ask intelligible voir dire questions was not biased or inappropriate);
United States v. Cooper, 51 M.J. 247, 251 (C.A.A.F. 1999) (holding a
military judge’s personal expression of irritation with a defense counsel
did not divest him of the necessary appearance of impartiality); United
States v. Loving, 41 M.J. 213, 257 (C.A.A.F. 1994) (“Generally, court-
room clashes between counsel and the judge do not constitute disquali-
fying bias.”).
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United States v. Khan, No. ACM 38962
The standard for identifying the appearance of bias of a military
judge is an objective one: “[A]ny conduct that would lead a reasonable
[person] knowing all the circumstances to the conclusion that the
judge’s impartiality might reasonably be questioned.” Hasan v. Gross,
71 M.J. 416, 418 (C.A.A.F. 2012) (quoting United States v. Kincheloe, 14
M.J. 40, 50 (C.M.A. 1982)). “There is a strong presumption that a judge
is impartial, and a party seeking to demonstrate bias must overcome a
high hurdle, particularly when the alleged bias involves actions taken
in conjunction with judicial proceedings.” United States v. Quintanilla,
56 M.J. 37, 44 (C.A.A.F. 2001). Remarks, comments, or rulings of a mil-
itary judge do not constitute bias or partiality, “unless they display a
deep-seated favoritism or antagonism that would make fair judgment
impossible.” Id. at 37 (quoting Liteky, 510 U.S. at 555).
Further, the Supreme Court has made clear that “expressions of
impatience, dissatisfaction, annoyance, and even anger, that are within
the bounds of what imperfect men and women, even having being con-
firmed as federal judges, sometimes display” do not establish bias or
partiality. Liteky, 510 U.S. at 555–56. “A judge’s ordinary efforts at
courtroom administration—even a stern and short-tempered judge’s or-
dinary efforts at courtroom administration—remain immune.” Id. at
556.
The military judge’s “expressions” in this case remained well
“within the [judicial] bounds” and her “remarks, comments, [and] rul-
ings” did not “display a deep-seated favoritism or antagonism that
would make fair judgment impossible.” Quintanilla, 56 M.J. at 37. She
did not abuse her discretion in denying the motion to recuse herself.
III. CONCLUSION
The findings of guilt and the sentence are correct in law and fact
and no error materially prejudicial to the substantial rights of Appel-
lant occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a),
866(c). Accordingly, the findings and sentence are AFFIRMED.
FOR THE COURT
KURT J. BRUBAKER
Clerk of the Court
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