     UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                         MULLIGAN, CAMPANELLA, and HERRING
                                Appellate Military Judges

                              UNITED STATES, Appellee
                                          v.
                         Staff Sergeant TIMOTHY R. SLACK
                            United States Army, Appellant

                                      ARMY 20150352

                        Headquarters, III Corps and Fort Hood
                          Wade N. Faulkner, Military Judge
                      Colonel Ian G. Corey, Staff Judge Advocate

For Appellant: Colonel Mary J. Bradley, JA; Major Christopher D. Coleman, JA;
Captain Payum Doroodian, JA (on brief); Colonel Mary J. Bradley, JA; Major
Christopher D. Coleman, JA; Captain Patrick J. Scudieri, JA (on brief in response to
specified issue).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A. G. Courie III,
JA; Major Michael E. Korte, JA; Captain Tara O’Brien Goble, JA (on brief).


                                       13 March 2017

                                 ----------------------------------
                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

CAMPANELLA, Senior Judge:

       In this case, we hold that the military judge was not disqualified under Rule
for Courts-Martial [hereinafter R.C.M.] 902 as a result of his duties during his
tenure as the Chief of Justice (CoJ), III Corps, prior to presiding over appellant’s
case as a military judge.

       An officer panel sitting as a general court-martial convicted appellant,
contrary to his pleas, of one specification of conspiracy to commit aggravated sexual
assault and an indecent act, one specification of sexual assault, and one specification
of indecent conduct, in violation of Articles 81 and 120, Uniform Code of Military
Justice, 10 U.S.C. §§ 881, 920 (2006 & Supp. IV) [hereinafter UCMJ]. The panel
sentenced appellant to a bad-conduct discharge, three months of confinement, and a
reprimand.
SLACK—ARMY 20150352

       This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises one assignment of error, which requires neither discussion nor relief. We
have also considered those matters personally raised by appellant pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) and find them to be without merit.

       This court, however, specified one issue requiring discussion, but no relief.
This court asked whether the military judge was disqualified under R.C.M. 902 from
presiding as a military judge in appellant’s case as a result of being the CoJ at III
Corps and Fort Hood while the offenses committed by appellant were under
investigation by Army criminal investigators.

                                  BACKGROUND

                         The Sexual Assault and Investigation

       On 24 February 2012, HW, a twenty-one year old college student, went out
with her friend, MS, to patronize local bars in Austin, Texas. After visiting several
bars and consuming several drinks, HW became extremely drunk. At the last bar the
pair visited, HW and MS became separated. HW left the bar with three men:
appellant; Staff Sergeant (SSG) Dumas; and SSG Davis. The men drove HW to a
local hotel. Once inside the hotel room, the men removed HW’s clothes and
sexually assaulted her. HW testified that she was too drunk to protest.

       The next morning, HW took a cab home and eventually reported to her mother
that she had been raped. Her mother and aunt reported the rape to the Austin Police
Department (APD). When HW reported the rape to authorities, the identities of the
three man were unknown.

      In March 2012, the APD notified Army Criminal Investigation Command
(CID) of their investigation into HW’s report when they identified SSG Dumas, a
Fort Hood soldier, as the person who booked the room where the rape occurred.
SSG Dumas was a soldier assigned to 1st Army Division West, Fort Hood. 1

      On 20 September 2012, the Travis County District Attorney’s Office issued a
warrant of arrest and opined that probable cause existed to believe SSG Dumas
committed the offense of sexual assault. The CID reports do not indicate that
military trial counsel ever gave opinions as to probable cause in these cases. Rather,
CID appears to have relied on the Travis County District Attorney’s Office probable
cause determination.


1
    1st Army Division West has a separate GCMCA from III Corps, Fort Hood.


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SLACK—ARMY 20150352

      In October 2012, appellant changed duty stations from 82nd Field Artillery
Regiment, 1st Cavalry Division, Fort Hood, Texas to 428th Field Artillery Brigade,
Fort Sill, Oklahoma.

      On 20 December 2012, CID interviewed SSG Dumas about the rape. He
named appellant and SSG Davis as the two soldiers with him in the hotel room that
night. At the time the two additional suspects were identified, SSG Davis was
assigned to the 1st Cavalry Division, Fort Hood, but appellant had since changed
duty stations to Fort Sill, Oklahoma.

      On 25 January 2013, at the request of the APD, Fort Sill military criminal
investigators questioned appellant about the rape. The criminal investigators then
updated appellant’s Fort Sill chain of command on the status of the investigation.

     On 12 March 2013, the Travis County District Attorney’s Office issued a
warrant of arrest and opined that probable cause existed to believe appellant
committed the offense of sexual assault.

      CID issued its Final Report of Investigation on 19 March 2013 and distributed
the report to members of the offices of the staff judge advocates (OSJA) of III
Corps, 1st Army Division West, 1st Cavalry Division, and Fort Sill. This report
listed as suspects: SSG Davis of 1st Cavalry Division, Fort Hood, TX; SSG Dumas
of Division West, Fort Hood, TX, and SSG Slack of 428th Field Artillery Brigade,
Fort Sill, OK.

                Status of the Military Judge During the Investigation

      Lieutenant Colonel (LTC) Wade Faulkner, the military judge in appellant’s
case, was CoJ for III Corps and Fort Hood from July 2011 to late June 2013.
Lieutenant Colonel Dan Everett was his successor as III Corps CoJ. The government
obtained affidavits from both to address the question specified by this court.

      In his affidavit, LTC Faulkner asserted that when he became the military
judge, he had no recollection of the facts of this case. To determine if he was ever
made aware of appellant’s case in the normal course of handling III Corps matters,
LTC Faulkner checked the III Corps military justice tracking tool he used when he
was the CoJ to determine if appellant’s case was listed therein, and perhaps to
refresh his recollection. Lieutenant Colonel Faulkner determined appellant’s name
was not on his case tracker.

      In his affidavit, LTC Everett indicated that at the time the final CID report was
issued, none of the three accused soldiers were assigned to a III Corps unit–
accordingly, it would highly unlikely that any of the three cases would have
appeared on LTC Faulkner’s case tracker. Lieutenant Colonel Everett indicated that
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SLACK—ARMY 20150352

by chance, he became aware of appellant’s case after becoming the CoJ when the
Fort Hood senior defense counsel (SDC) contacted the III Corps OSJA complaining
about the pending administrative separations facing SSG Dumas and SSG Davis.
Appellant was not mentioned because he had already changed duty stations. The III
Corps SJA forwarded the email to LTC Everett asking about whether he was tracking
the cases–which he was not.

      As a result of receiving this information, III Corps halted the administrative
separations of SSG Davis and SSG Dumas and arranged to have all three soldiers
reassigned to III Corps so that all three cases could be handled together. Appellant’s
reassignment to Fort Hood was effective 10 January 2014.

      Over a year later, the government preferred and referred charges against
appellant. On 20 February 2015, appellant’s court-martial began. Judge Faulkner
presided.

      Judge Faulkner did not disclose on the record that he had previously served as
the III Corps CoJ prior to serving as a military judge. He stated on the record that
he was not aware of any grounds for challenge against him. Both sides declined to
question or challenge him. Appellant elected to be tried by an officer panel.

                              LAW AND DISCUSSION

       We review a military judge’s decision as to disqualification under R.C.M. 902
for an abuse of discretion. United States v. Quintanilla, 52 M.J. 839, 849-50 (Army
Ct. Crim. App. 2000) (citing United States v. Rivers, 49 M.J. 434, 444 (C.A.A.F.
1998); United States v. Elzy, 25 M.J. 416, 417 (C.M.A. 1988); Liteky v. United
States, 510 U.S. 540, 557 (1995) (Kennedy, J., concurring in judgment) (“a judge
should be disqualified only if it appears that he or she harbors an aversion, hostility,
or disposition of a kind that a fair-minded person could not set aside when judging
the dispute”). The burden of demonstrating a disqualification is on the party
requesting such disqualification. Id. A reasonable factual basis must be established;
surmise or conjecture is not sufficient. Id.

       It is axiomatic that “[a]n 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 implements this
rule and “provides two bases for disqualification of a military judge.” United States
v. Martinez, 70 M.J. 154, 157 (C.A.A.F. 2011). The first basis is a military judge’s
duty to “disqualify himself or herself in any proceeding in which that military
judge’s impartiality might reasonably be questioned.” R.C.M. 902(a). The second
basis involves the specific, enumerated circumstances requiring disqualification,



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SLACK—ARMY 20150352

under R.C.M. 902(b). 2 Appellant argues it is the second circumstance that applies to
his case:

             (2) Where the military judge has acted as counsel,
             investigating officer, legal officer, staff judge advocate, or
             convening authority as to any offense charged or in the
             same case generally.

      Appellant argues R.C.M. 902(b) was violated when LTC Faulkner acted as the
supervising counsel for III Corps during the Army CID investigation into appellant’s
criminal activity. Appellant further asserts LTC Faulkner failed to disclose this
potential ground for challenge under R.C.M. 902(a) and (e), thereby creating the
appearance of bias. We disagree on both counts based on the reasons herein.

                       Acted As Counsel under R.C.M 902(b)

       We find no evidence that LTC Faulkner, or the personnel he supervised, took
official action on appellant’s case. In fact, the only evidence provided to indicate
LTC Faulkner had any knowledge of this case during his tenure as CoJ would have
been as a result of receiving the final CID report in March 2013. At this point in
time, however, all three soldiers were assigned to units outside the III Corps
GCMCA jurisdiction. Lieutenant Colonel Faulkner indicated that, as a matter of
course, he did not read the CID reports but rather would dispatch them to the
corresponding trial counsel in that jurisdiction. Accordingly, none of these three
cases were added to LTC Faulkner’s III Corps case tracker. He would not have had
any reason to receive or give briefs on the cases or to impart advice.

        This case is distinguishable from United States v. Schafer, ARMY 20140245,
2016 CCA LEXIS 429, at *9 (Army Ct. Crim. App. 28 Jun. 2016) wherein this court
found that LTC Faulkner had acted “as counsel” under R.C.M. 902(b)(2) and (3)
because, in the case of a soldier assigned to III Corps, he was actively involved in
the preferral and referral process of Schafer’s case and appeared to have made
recommendations on the charging decisions. That was not the case here. In fact, the
preferral and referral occurred over a year after LTC Faulkner became a military
judge.

       Based on the evidence before us, we conclude neither LTC Faulkner nor any
of the personnel he supervised at III Corps had any involvement in the investigation,
preferral or referral of these three cases during his tenure as the Chief of Justice.


2
 These specific grounds are based on 28 U.S.C. § 455(b). See R.C.M. 902 analysis
at A21-53.

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SLACK—ARMY 20150352

                  Appearance of Impartiality under R.C.M 902(a)

      We next look to whether LTC Faulkner had a duty to disqualify himself in this
case because his impartiality might reasonably be questioned. See R.C.M. 902(a).

       The evidence indicates LTC Faulkner was not tracking appellant’s case, nor
was he giving guidance to those he supervised concerning the prosecution of
appellant, SSG Davis or SSG Dumas. In fact, the circumstances that brought these
three cases to III Corp’s attention, (namely an email from the Fort Hood SDC to the
III Corps SJA), came to light after LTC Faulkner had already become a military
judge. Given that we have no evidence before us to conclude LTC Faulkner had any
specific knowledge of this case, we see no reasonable factual basis to reasonably
question his impartiality. Quintanilla, 52 M.J. at 850.

       This case is distinguishable from United States v. Keen, 2016 CCA LEXIS
616, at *5 (Army Ct. Crim. App. 20 Oct. 2016) wherein this court set aside the
conviction on R.C.M. 902(a) grounds. In Keen, the appellant was assigned to a unit
within the III Corps GCMCA and the military judge, who had previously served as
the CoJ, previously supervised the trial counsel who gave the probable cause
opinion. Additionally, the appellant in Keen was listed on the CoJ’s tracker. There,
the military judge did not disclose his prior position as CoJ, thereby precluding a
possible waiver by Keen. In this case, LTC Faulkner did not disclose his prior
position as III Corps CoJ, but appellant was not assigned to a unit within the III
Corps GCMCA, the attorneys giving the probable cause opinion did not work for the
III Corps CoJ, and appellant’s case was not on the CoJ’s case tracker. We conclude
there is no reasonable basis to question the military judge’s impartiality.

      Based on the foregoing, we find the military judge did not abuse his discretion
because there was no reasonable factual basis for disqualification under R.C.M
902(a) or R.C.M 902(b).

                                  CONCLUSION

      The findings of guilty and the sentence are AFFIRMED.

      Senior Judge MULLIGAN and Judge HERRING concur.

                                       FOR THE COURT:




                                       MALCOLM H. SQUIRES, JR.
                                       MALCOLM H. SQUIRES, JR
                                       Clerk of Court
                                       Clerk of Court
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