              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.

                          ERIK J. ELLIS
              STAFF SERGEANT (E-6), U.S. MARINE CORPS

                            NMCCA 201200406
                        SPECIAL COURT-MARTIAL

Sentence Adjudged: 24 May 2012.
Military Judge: LtCol Robert Palmer, USMC.
Convening Authority: Commanding Officer, 4th Marine Corps
District, New Cumberland, PA.
Staff Judge Advocate's Recommendation: Maj S.D. Manning,
USMC.
For Appellant: LT Carrie Theis, JAGC, USN.
For Appellee: LT James Belforti, JAGC, USN.

                           26 November 2014

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                     OPINION OF THE COURT
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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 military judge sitting as a special court-martial
convicted the appellant pursuant to his pleas of two
specifications each of violating a lawful general order and
sodomy, in violation of Articles 92 and 125, Uniform Code of
Military Justice, 10 U.S.C. §§ 892 and 925. The military judge
sentenced the appellant to confinement for six months, reduction
to pay grade E-1, forfeiture of $950.00 pay per month for six
months, and a bad-conduct discharge. The convening authority
(CA) approved the sentence as adjudged and, except for the
discharge, ordered it executed. A pretrial agreement had no
effect on the sentence.

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

                                 Background

     This case is before us upon remand by the United States
Court of Appeals for the Armed Forces (CAAF). In his original
appeal, the appellant argued that comments by the military judge
after the appellant’s trial displayed an inflexible attitude
toward sentencing and as a result the military judge was
disqualified to preside at the appellant’s trial. 1 As part of
his argument the appellant contended that the military judge was
subject to unlawful command influence. He urged us to either
remand his case for a rehearing on sentence or approve a
sentence no greater that that requested by his trial defense
counsel, four months’ confinement. Appellant’s Brief of 29 Nov
2012 at 10-11.

     In our earlier opinion, we found no evidence of actual
bias; however, we found that “a reasonable person . . . may
conclude that [the judge’s comments] reveal a bias since the
comments depart markedly from the neutral and detached posture
that trial judges must always maintain.” United States v.
Ellis, No. 201200406, 2013 CCA LEXIS 115 (N.M.Ct.Crim.App. 21
Feb 2013) (per curiam). We 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), and found no evidence of
unlawful command influence.

     The Court of Appeals for the Armed Forces (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

1
  The military judge sentenced the appellant on 24 May 2012 approximately one
month before he made his remarks to a group of junior officers in a
professional military education lecture. For more on the subject of the
military judge’s remarks, see United States v. Kish, No. 201100404, 2014 CCA
LEXIS 358, unpublished op. (N.M.Ct.Crim.App. 17 Jun 2014).


                                      2
consideration in light of our decision in United States v. Kish. 2
In his current appeal, the appellant has essentially reframed
his original assignment of error, contending that he was
deprived of his constitutional right to an impartial judge.

     Specifically, he argues that we erred in Kish by concluding
that the military judge’s comments did not reflect an actual
bias. Rather, he argues, these comments and related conduct
reflect evidence of the military judge’s animosity toward all
military accused and, coupled with the close proximity of his
remarks to the appellant’s trial, “are sufficient to show actual
bias.” Appellant’s Brief of 3 Jul 2014 at 16. He also cites
his sentence of six months’ confinement and a bad-conduct
discharge as further evidence of actual and apparent bias. Id.
at 17-22. We disagree.

                    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

      While RULE FOR COURTS-MARTIAL 902(b), MANUAL FOR COURTS-MARTIAL,
UNITED STATES (2012 ed.) lists various circumstances where actual

2
  In Kish, 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 June
21, 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). Following the DuBay hearing
and based on the context of the military judge’s statements, this court
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, 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. at *38-39.
We adopt our findings of fact and conclusions from our 17 June 2014 Kish
opinion for purposes of this appeal.
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
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 v. Health
Services Acquisition Corp., 486 U.S. 847, 860 (1988)).

     In his current appeal, the appellant alleges both actual
and apparent bias. We previously concluded in Kish that the
military judge’s PME statements do not support a finding of
actual bias, and the appellant here has made no showing that the
military judge had a personal bias or prejudice concerning him
or his case. Consequently, we disagree with the appellant’s
current complaint of actual bias and instead we examine the
issue of apparent bias.

     The test we apply in this regard 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). This test may be 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)).

     We first examine the temporal relationship between the
military judge’s PME comments and the appellant’s trial, as he
urges us to do. We find the mere proximity alone insufficient
for a finding of apparent bias. Absent any aspect of the court-
martial itself that would lead a reasonable person to question
whether the military judge’s PME comments were in fact
reflective of a personal bias, we find the proximity in time
insufficient to establish apparent bias.

     Other than the appellant’s sentence, the appellant cites to
nothing in the record of his trial that would suggest
impartiality by the military judge, and we find none. The
military judge conducted an appropriate providence inquiry,
entered findings consistent with the appellant’s pleas, ruled
reasonably on objections raised by both sides during the
sentencing proceeding, and adjudged a sentence well-within a




                                4
reasonable range under the facts of the appellant’s case. 4 Thus,
in this case, the effect of the military judge’s unrelated PME
comments nearly a month after trial is not compounded with
anything at trial to reach the level of undermining public
confidence in the judicial system’s integrity. Art.59(a), UCMJ;
Liljeberg, 486 U.S. at 860. Accordingly, we find no apparent
bias.

                                Conclusion

     The findings and the sentence as approved by the CA are
affirmed.


                                      For the Court



                                      R.H. TROIDL
                                      Clerk of Court




4
  The appellant, a 36-year-old Marine recruiter assigned to rural Virginia,
engaged in a sexual relationship with a 21-year-old recruit applicant, LR,
who he had recently contracted into the Marine Corps Delayed Entry Program.
Approximately one year later, after LR had shipped to recruit training, the
appellant contracted LR’s younger sister, AR, then 17 years old. Like her
older sister, the appellant engaged in a sexual relationship with AR until
she left for recruit training. We note that the military judge’s sentence of
six months’ confinement was less than both the ten months requested by the
trial counsel and the eight month sentence limitation the appellant’s
bargained for in his pretrial agreement.
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