              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                                  Before
               J.A. FISCHER, R.Q. WARD, K.M. MCDONALD
                         Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                          LEVON TYLER
              STAFF SERGEANT (E-6), U.S. MARINE CORPS

                           NMCCA 201200327
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 21 March 2012.
Military Judge: LtCol Robert Palmer, USMC.
Convening Authority: Commanding General, 2nd Marine
Aircraft Wing, Cherry Point, NC.
Staff Judge Advocate's Recommendation: Col S.C. Newman,
USMC .
For Appellant: LCDR Ryan Mattina, JAGC, USN; LT Carrie
Theis, JAGC, USN.
For Appellee: LCDR Keith Lofland, JAGC, USN.

                           11 December 2014

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                     OPINION OF THE COURT
     ---------------------------------------------------

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

     A panel of officer and enlisted members convicted the
appellant at a general court-martial, contrary to his pleas, of
one specification of violating a lawful general order
(Government travel charge card program regulation), 45
specifications of larceny, and one specification of stealing
mail, in violation of Articles 92, 121, and 134, Uniform Code of
Military Justice, 10 U.S.C. §§ 892, 921, and 934. The panel
sentenced the appellant to confinement for 10 months, reduction
to pay grade E-1, and a bad-conduct discharge. The convening
authority approved the sentence as adjudged.

     In his initial appeal, we reviewed the appellant’s
assignments of error1 and, after considering the pleadings of the
parties and the record of trial, we affirmed the findings of
guilty and sentence. This case is now before us again on remand
for reconsideration in light of certain remarks made by the
military judge approximately three months after the appellant’s
trial concluded.

     After carefully considering the submissions of the parties
and the record of trial, we conclude that following our
corrective action the findings and sentence are correct in law
and fact, and that no error materially prejudicial to the
substantial rights of the appellant remains. Arts. 59(a) and
66(c), UCMJ.

                                 Background

     This is one of a number of cases concerning an allegation
of judicial bias stemming from the military judge’s remarks
during a Professional Military Education (PME) lecture he gave
to Marine student judge advocates on 21 June 2012. In our
earlier opinion, we found no evidence of actual bias, assumed
apparent bias, and affirmed the findings and sentence after
failing to find structural error or any prejudicial error under
Article 59(a), UCMJ and Liljeberg v Health Services Acquisition
Corp., 485 U.S. 847 (1988). United States v. Tyler, No.

1
    The appellant raised the following:

      (1) The military judge’s post-trial statements cast doubt upon the
fairness and impartiality of the appellant’s court-martial;

      (2) The evidence is factually insufficient to sustain the appellant’s
convictions;

      (3) The appellant’s convictions for theft of a Government travel card
and theft of mail are an unreasonable multiplication of charges; and

      (4) The trial defense counsel was ineffective during trial on the
merits and sentencing.

We adopt our analysis from our earlier decision and similarly find
assignments of error (2) and (4) lacking merit and do not address them
further. United States v. Clifton, 35 M.J. 79 (C.M.A. 1992). We also adopt
our previous analysis of assignment of error (3) and our finding as to
Specifications 41, 43, and 45, and after sentence reassessment provide relief
in our decretal paragraph.

                                          2
201200327, 2013 CCA LEXIS 232, unpublished op. (N.M.Ct.Crim.App.
21 Mar 2013). The appellant appealed our decision to the Court
of Appeals for the Armed Forces (CAAF) solely on the allegation
of judicial bias, and the CAAF granted review. United States v.
Tyler, 72 M.J. 472 (C.A.A.F. 2013).

      The CAAF later set aside our decision and returned the case
to the Judge Advocate General of the Navy for remand to this
court for further consideration in light of our decision in
United States v. Kish.2 United States v. Tyler, 73 M.J. 56
(C.A.A.F. 2013) (summary disposition). After reviewing the
DuBay record in Kish, we concluded that the military judge “was
voicing not his own biases or prejudices, but instead a mindset
that he believes a junior counsel must adopt to be a tenacious
and zealous advocate.” United States v. Kish, No. 201100404,
2014 CCA LEXIS 358 at *38-39, unpublished op. (N.M.Ct.Crim.App.
17 Jun 2014). We further concluded that the military judge was
not actually biased against accused service members within the
meaning of RULE FOR COURTS-MARTIAL 902(b), MANUAL FOR COURTS-MARTIAL,
UNITED STATES (2012 ed.). Id. We adopt and incorporate our
findings of fact and conclusions from our decision in Kish for
purposes of this appeal.

     Citing actual and apparent bias from the military judge,
the appellant argues in his current appeal that he was deprived
of his constitutional right to an impartial judge. He urges us
to set aside the guilty findings and sentence. Appellant’s
Supplemental Brief and Assignment of Error of 1 Aug 2014.

                  Disqualification of Military Judge

     “‘An accused has the right to an impartial judge.’”
United States v. Martinez, 70 M.J. 154, 157 (C.A.A.F. 2011)
(quoting United States v. Butcher, 56 M.J. 87, 90 (C.A.A.F.
2001)). There is a “strong presumption that a [military] judge
is impartial.” United States v. Quintanilla, 56 M.J. 37, 44
(C.A.A.F. 2001). We review whether a military judge has acted
appropriately de novo.3

2
  In Kish, the CAAF ordered a hearing pursuant to United States v. DuBay, 37
C.M.R. 411 (C.M.A. 1967), to “make findings of fact and conclusions of law
related to what, if any, statements the military judge made on or about 21
June 2012 at a Professional Military Education meeting with junior officers
regarding the practice of military justice.” United States v. Kish, 72 M.J.
158, 158 (C.A.A.F. 2013) (summary disposition).
3
  The CAAF has applied this standard when facing questions that the appellant
could not reasonably have raised at trial. See, e.g., United States v. Rose,
71 M.J. 138, 143 (C.A.A.F. 2012) (reviewing de novo the deficient performance
and prejudice aspects of an ineffective assistance of counsel claim).
                                      3
     While R.C.M. 902(b) lists various circumstances where
actual bias may require disqualification, R.C.M. 902(a) states
that a military judge shall “disqualify himself or herself in
any proceeding in which that military judge’s impartiality might
reasonably be questioned.” “The appearance standard is designed
to enhance public confidence in the integrity of the judicial
system.” Quintanilla, 56 M.J. at 45 (citing Liljeberg, 486 U.S.
at 860).

     We previously concluded in Kish that the military judge’s
PME statements did not support a finding of actual bias, and we
are unpersuaded by the appellant’s current attempt to draw a
prejudicial nexus between his trial and the judge’s PME
comments. To the contrary, we find no evidence in the record
that the military judge had a personal bias or prejudice
concerning the appellant or his case.4 We next turn our
attention to the issue of apparent bias.

     The test we apply for apparent bias 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.” Martinez, 70 M.J. at 157 (citation and
internal quotation marks omitted). The test is met when there
is “‘any conduct that would lead a reasonable man knowing all
the circumstances to the conclusion that the judge’s
impartiality might reasonably be questioned.’” Id. at 158-59
(quoting United States v. Kincheloe, 14 M.J. 40, 50 (C.M.A.
1982)).

     Examining these same matters in the context of apparent
bias, we are unpersuaded that a reasonable observer aware of all
the circumstances would question the military judge’s
impartiality at the appellant’s trial. Despite the appellant’s
assertions, we do not find any action by the military judge
during the appellant’s trial that would reasonably call his
impartiality into question. Unlike in Kish, the effect of the
military judge’s PME remarks is not compounded with anything at
the appellant’s trial that undermines public confidence in the


4
  The appellant cites to the military judge’s comment in his written ruling
that a series of defense pretrial motions “are nothing more than the defense
protesting the Government holding the [appellant] accountable for his
misconduct . . .” and “sour grapes”. Appellant’s Supplemental Brief at 16
(quoting Appellate Exhibit XI at 9). A fair read of the military judge’s
comment in the context of his ruling quickly belies his argument of bias. In
addition, the appellant cites the military judge’s excusal of a panel member
due to actual bias. As we stated in our earlier opinion, we find the
military judge’s rulings legally correct and not indicative of any bias.
Tyler, 2013 CCA LEXIS 232 at *13.
                                     4
judicial system’s integrity. Quintanilla, 56 M.J. at 45.
Accordingly, we find no apparent bias.

                           Conclusion
     As we stated in our earlier decision, we note a difference
between the evidence introduced at trial and the commencement
date of the offenses as charged in Specifications 41, 43, and
45. Each of the specifications charged the commencement date of
the offenses as “on or about 1 January 2009.” The evidence at
trial, however, indicated the items were stolen at a later date,
but still within the time frame alleged. Additionally, the
findings of guilty as to Specification 44 under Charge I are set
aside as unreasonably multiplied with the specification under
Charge II.

     The remaining findings are affirmed except that the
following language is excepted and substituted as to
Specifications 41, 43 and 45 of Charge I:

Specification 41: Except the language “on or about 1 January
2009" and substituting therefor the words "on or about May
2009.”

Specification 43: Except the language “on or about 1 January
2009" and substituting therefor the words "on or about August
2009.”

Specification 44: Except the language “on or about 1 January
2009 to on or about 30 June 2009" and substituting therefor the
words "on or about June 2009.”

     After reassessing the sentence in accordance with the
principles set forth in United States v. Moffeit, 63 M.J. 40
(C.A.A.F. 2006), United States v. Cook, 48 M.J. 434, 438,
(C.A.A.F. 1998), and United States v. Sales, 22 M.J. 305, 307-09
(C.M.A. 1986), and finding that there has not been a dramatic
change in the penalty landscape, United States v. Buber, 62 M.J.
476, 479 (C.A.A.F. 2006) the sentence as approved by the
convening authority is affirmed.
                                For the Court



                                R.H. TROIDL
                                Clerk of Court


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