                            UNITED STATES, Appellee

                                            v.

   Terrence M. JONES, Aviation Boatswain’s Mate (Handler) Third
                              Class,
                       U.S. Navy, Appellant

                                     No. 99-0252
                            Crim. App. No. 97 00486

             United States Court of Appeals for the Armed Forces

                              Argued February 28, 2001

                               Decided August 22, 2001


     EFFRON, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., and GIERKE, J., joined. BAKER, J., filed an
opinion concurring in the result. SULLIVAN, J., filed a
dissenting opinion.



                                        Counsel

For Appellant: Lieutenant M. Eric Eversole, JAGC, USNR (argued); Lieutenant
     Omar R. Lopez, JAGC, USNR.


For Appellee: Lieutenant James E. Grimes, JAGC, USNR (argued); Colonel Marc
     W. Fisher, Jr., USMC, and Lieutenant Commander Philip L. Sundel, JAGC,
     USNR (on brief); Colonel K. M. Sandkuhler.


Military Judge:   Thomas P. Tielens




            THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. Jones, No. 99-0252/NA


Judge EFFRON delivered the opinion of the Court.


     A general court-martial composed of officer and enlisted

members convicted appellant, contrary to his pleas, of rape and

adultery, in violation of Articles 120 and 134, Uniform Code of

Military Justice, 10 USC §§ 920 and 934, respectively.    He was

sentenced to a bad-conduct discharge, confinement for 3 years,

total forfeitures, and reduction to the lowest enlisted grade.

The convening authority approved these results, and the Court of

Criminal Appeals affirmed in an unpublished opinion in October

1998.    The decision was set aside by order of this Court (52 MJ

442) on September 20, 1999, and the case was returned to the

Court of Criminal Appeals for further review concerning

sufficiency of the evidence under Article 66(c), UCMJ, 10 USC

§ 866(c).    On remand, the lower court affirmed the findings and

sentence in an unpublished opinion dated February 29, 2000.

     On appellant’s petition, we granted review of the following

issue:

            WHETHER THE LOWER COURT ERRED WHEN IT
            ALLOWED A JUDGE WITH A CONFLICT OF INTEREST
            TO REVIEW APPELLANT’S CASE ON APPEAL.

For the reasons set forth below, we affirm.




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United States v. Jones, No. 99-0252/NA



                          I.    BACKGROUND

     Appellant asserts that Judge Dorman should have recused

himself from the panel of the Court of Criminal Appeals

reviewing his case.   Prior to his appointment to the Court of

Criminal Appeals, Colonel Dorman served as the Director of the

Appellate Government Division of the Navy-Marine Corps Appellate

Review Activity (Appellate Government Division).    He served as

Director from July 1995 to May 26, 1998.     On June 16, 1998, Col.

Dorman was sworn in as a judge on the lower court.

     Appellant’s case was docketed with the Court of Criminal

Appeals in March 1997; a copy of the docketing notice and record

of trial were provided by the court to both appellate divisions.

Appellate defense counsel filed numerous motions for enlargement

of time with the lower court.   In accordance with the practice

of the Appellate Government Division, the first seven motions

went unopposed.   Appellant’s combined eighth-ninth motion for

enlargement of time, filed on March 13, 1998, and his tenth

motion, filed on April 6, 1998, were opposed by the Government.

In both instances, the Government’s opposition to the motions

for enlargement consisted solely of the assertion that “[t]he

Government believes that appellant has had ample time to

research and raise potential issues, and requests this Court to

set a date certain for appellant to file his Assignment of



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United States v. Jones, No. 99-0252/NA


Errors and Brief.”   Both documents were filed by the Deputy

Director of the Appellate Government Division during Col.

Dorman’s tenure as Director of the Division.      The lower court

granted appellant’s combined eighth-ninth motion and the tenth

motion for enlargement of time.    Appellant filed an assignment

of errors and brief with the court on August 4, 1998, more than

2 months after Judge Dorman left the Appellate Government

Division and became an appellate judge.      The Government filed

its answer on September 3, 1998.       The Court of Criminal Appeals

issued its initial decision on October 29, 1998.      Judge Dorman

had joined the court at this point, but did not sit on the panel

that issued the decision, which was composed of Judges Sefton,

Troidl, and Anderson.   After that decision was set aside by our

Court, 52 MJ 442, the case was considered upon remand by a

different panel of the Court of Criminal Appeals, composed of

Judges Dorman, Rolph, and Naugle.      That panel issued its

decision on February 29, 2000.    Appellant did not seek Judge

Dorman’s disqualification at any point while the case was under

consideration by the Court of Criminal Appeals.

      In an affidavit filed with our Court, Judge Dorman avers

that he “had no involvement” with appellant’s case while he was

the Director of the Appellate Government Division; that he gave

no “specific or general guidance” to the Deputy Director about

filing oppositions to the motions for enlargement in this case;


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United States v. Jones, No. 99-0252/NA


and that he was “not aware” that the Government had made replies

in opposition to appellant’s motions until the present appeal

was filed with our Court.       Judge Dorman also stated that the

Appellate Government Division, “[w]ith rare exception, . . .

took no action on a record of trial until” an appellant “filed

assignments of error” with the Court of Criminal Appeals.             In

light of these circumstances, he decided that he would generally

recuse himself “from participating in any case in which an

appellant had filed a brief raising an assignment of error with

the NMCCA on or before 26 May 1998, the day I was relieved of

duties as the Director of the Appellate Government Division.”1



                       II.   STANDARDS FOR RECUSAL

      Title 28 USC § 455 governs the recusal of judges and is

applicable to cases involving the actions of appellate military

judges.   United States v. Lynn, 54 MJ 202, 205 (2000).

Appellant claims that Judge Dorman’s participation in the review

of his case violates the following provisions of § 455:


            (a)   Any justice, judge, or magistrate of
                  the United States shall disqualify
                  himself in any proceeding in which his
                  impartiality might reasonably be
                  questioned.


      1
        Our decision in United States v. Lynn, 54 MJ 202 (2000), describes
the practice of the Appellate Government Division in responding to defense
motions for enlargement of time, as well as Judge Dorman’s policy on recusal
related to his prior assignment.


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United States v. Jones, No. 99-0252/NA




            (b)   He shall also disqualify himself in the
                  following circumstances:

                                   * * *

                  (3) Where he has served in governmental
                  employment and in such capacity
                  participated as counsel, adviser or
                  material witness concerning the
                  proceeding or expressed an opinion
                  concerning the merits of the particular
                  case in controversy.


     Subsection (a) enhances public confidence in the judicial

system by ensuring that judges avoid the appearance of

partiality.    See Liljeberg v. Health Services Acquisition Corp.,

486 U.S. 847 (1988).    The test for determining if recusal is

necessary under this section is “whether a reasonable person who

knew all the facts might question these appellate military

judges’ impartiality.”    United States v. Mitchell, 39 MJ 131,

143 (CMA)(emphasis in original), cert. denied, 513 U.S. 874

(1994).

     Subsection (b)(3) shields parties from having their case

tried before a judge who may have formed opinions or gained

knowledge via prior contact with the case in a governmental

capacity.    Recusal is mandatory for a judge who falls within the

specific circumstances of this section because those

circumstances are viewed as inconsistent with impartiality.




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United States v. Jones, No. 99-0252/NA


     The Federal Courts of Appeals have applied two different

approaches to evaluating whether a judge who previously served

as a U.S. Attorney may preside over a case investigated by the

U.S. Attorney's office during his or her tenure as the head of

that office.   The Ninth Circuit has applied a “vertical

imputation” theory under which the knowledge and actions of

subordinates are attributed to the U.S. Attorney, holding that

“[a] United States District Judge cannot adjudicate a case that

he or she as United States Attorney began.”    United States v.

Arnpriester, 37 F.3d 466, 467 (1994).    By contrast, the Tenth

Circuit has interpreted the phrase “participated as counsel” in

subsection (b)(3) as connoting activity by the individual and

has held that a judge is not required to recuse himself absent a

specific showing of actual prior involvement with the case.

United States v. Gipson, 835 F.2d 1323, cert. denied, 486 U.S.

1044 (1988).   The court focused on the fact that Congress

specifically amended the statute in 1974 to modify the phrase

"of counsel" to read "participated as counsel."    See id. at

1326, citing 28 USC § 455(b)(3); see also Mangum v. Hargett, 67

F.3d 80, 83 (5th Cir. 1995)(agreeing with the analysis in

Gipson), cert. denied, 516 U.S. 1133 (1996).



                          III. DISCUSSION

     A trial or appellate judge’s decision on recusal is


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United States v. Jones, No. 99-0252/NA


reviewed for abuse of discretion.       Lynn, 54 MJ at 205.   In the

present case, appellant did not question Judge Dorman’s

participation until his appeal before our Court.       When an

appellant does not raise the issue of disqualification until

appeal, the reviewing court examines the claim under the plain

error standard of review.   United States v. Schreiber, 599 F.2d

534, 536 (3d Cir.), cert. denied, 444 U.S. 843 (1979).

     Our recent decision in Lynn involved a factually related

case in which we held that Judge Dorman’s prior position as

Director of the Appellate Government Division did not require

him to recuse himself under § 455(a) because (1) the Government

took no action on the accused’s case except to receive and store

the record of trial during the period Col. Dorman headed the

division; (2) the seven defense motions for enlargement of time

filed during Col. Dorman’s tenure went unopposed; and (3) there

was unrebutted evidence that Col. Dorman had no involvement in

the case while at the Appellate Government Division.       54 MJ at

203, 204, 206.   We held that Judge Dorman’s policy on recusal

was “reasonable” in light of the Division’s practice of not

reviewing the record until a brief was filed or until the eighth

request for enlargement of time, id. at 204,“because it limits

his participation to those cases in which Appellate Government

had no substantive involvement.”       Id. at 207.




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United States v. Jones, No. 99-0252/NA


     The sole difference between Lynn and the present case is

the fact that the Government opposed two of appellant’s motions

for enlargement of time -- the combined motion for the eighth

and ninth enlargements -- and the tenth motion, while Col.

Dorman headed the Division.   In Lynn, we provided the following

description of the Government’s policy concerning responses to

defense motions for enlargement:

          [L]engthy defense appellate delays are
          sufficiently common that the Government has
          gone to the extent of formulating a policy
          of not even opposing the first seven motions
          for enlargement of time, and indeed it
          appears that even the succeeding oppositions
          are quite perfunctory.

Id. at 206-07 (footnote omitted).      The same characterization

applies to the record of the present case, which reflects

government opposition limited to the rote assertion that “[t]he

Government believes that appellant has had ample time to

research and raise potential issues.”      Such a perfunctory and

mechanical response does not create a reasonable question about

Judge Dorman’s lack of impartiality, especially when, as in

Lynn, appellant does not contest Judge Dorman’s lack of

knowledge about and personal involvement with appellant’s case.

We hold that no error was committed because Judge Dorman was not

required to recuse himself under 28 USC § 455(a).

     Appellant argues that the present case should be

distinguished from Lynn because Judge Dorman held supervisory


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United States v. Jones, No. 99-0252/NA


power, which would impute the actions of the attorneys under his

charge to him if we were to apply the Ninth Circuit’s vertical

imputation theory.   See United States v. Arnpriester, supra.

     As we noted earlier, the vertical imputation theory is one

of two standards for viewing a judge’s former role as attorney

under the statute.   The other is the Tenth Circuit's requirement

for actual prior involvement.   See United States v. Gipson,

supra.   The record and Judge Dorman’s unrebutted affidavit

demonstrate that he had no actual involvement with this case

during his tenure at the Appellate Government Division.    In view

of the perfunctory nature of the oppositions filed by the Deputy

Director in this case, in mechanical adherence to standard

Division practice, we conclude that it is appropriate to apply

the actual prior involvement standard to this case, rather than

the vertical imputation standard.    Accordingly, the fact that

Judge Dorman did not recuse himself sua sponte did not amount to

plain error.

      We reserve judgment as to which standard should be applied

in other circumstances.   There may be cases, for example, in

which denial of an extension might have substantive

consequences or in which the nature of the actions taken by the

Deputy Director would involve deficiencies for which the

Director could be held accountable and responsible.    Regardless

of which standard should be applied, we emphasize that the


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United States v. Jones, No. 99-0252/NA


difficulty of determining which actions are so perfunctory that

recusal is not required can be readily avoided in the future if

judges appointed to the lower courts after prior appellate

division service would recuse themselves from all cases that

were pending during their tenure in the division.



                         IV.   CONCLUSION

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals upon remand is affirmed.




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United States v. Jones, No. 99-0252/NA


  BAKER, Judge (concurring in the result):

        I agree with the lead opinion's sound conclusion

  that Judge Dorman had no "actual prior involvement" with

  this case.    __ MJ at (10).   Therefore, based on the

  specific facts of this case, he did not violate 28 USC §

  455(a) or (b).

            I write separately to emphasize the contextual

  nature of my vote and to articulate a different shade of

  analysis with respect to § 455(a).     I do not believe that

  § 455(a) is susceptible to general rules of the road

  based on characterizations of an attorney’s work as

  “substantive,” “non-substantive,” “mechanical,” or

  “rote.”    These terms may have meaning in a specific

  context, but they offer dim light as buoys to guide

  appellate judges through the rocks and shoals of §

  455(a).    Clearly, these terms are not relevant to a

  decision as to whether Judge Dorman was actually involved

  in this or any other case for the purpose of § 455(b);

  the majority opinion does not argue so.

        There are at least three analytic options for

  addressing § 455(a) questions, such as that presented in

  this case.    First, courts could apply a strict black-

  letter interpretation to § 455(a) as Judge Sullivan has

  argued for in United States v. Lynn, 54 MJ 202 (2000), and
United States v. Jones, No. 99-0252/NA


again today.    This is attractive as a principle that

guides with clarity and certainty of result.    However,

such an interpretation goes beyond what the law requires.

The statutory language presents a reasonable-person test

and not a strict-appearance standard.    There are

scenarios where a reasonable person knowing all the facts

would not reasonably question a judge's impartiality,

even where there is an initial appearance of partiality.

This is one of them.    A reasonable person knowing all the

facts would not reasonably question Judge Dorman’s

impartiality in this case.

         Second, while addressing cases as they come, courts

can seek to distinguish between acts that are substantive

and non-substantive in determining when to apply a theory

of vertical imputation with respect to § 455(a); and,

more broadly, in determining whether a judge’s

impartiality might reasonably be questioned.    This is the

approach taken in Lynn and by the majority of the Court

today.    These distinctions are not offered as black-

letter law, but they do represent common-law guidance to

the field.

         I believe a third analytic option is the most apt

in applying § 455(a).    Courts can accept that as a matter

of law, the application of § 455(a) is highly contextual


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United States v. Jones, No. 99-0252/NA


so as to defy advance and meaningful guidance with

general terminology like substantive and non-substantive.

While the non-substantive nature of an act may inform a

specific decision as to whether a judge’s impartiality is

reasonably questionable, under this construct, it is

simply too speculative to determine in advance that a

reasonable person will generally find that non-

substantive acts do not violate § 455(a).   This is not a

reliable benchmark.

      Terms like "rote," "perfunctory," "mechanical,"

"non-substantive,” and “substantive” are amorphous and

subject to multiple and conflicting good-faith

interpretations depending on the actor and their

perspective.   As those who have worked within a

government bureaucracy know, substance and process are

often flip sides of the same coin.   To whom one sends a

question or seeks a concurrence often dictates the

measure of the substantive answer received.   Likewise, a

“pro forma” continuance can also have profound

substantive effect.   A lawyer given 1 day to respond to a

brief will offer a different level of response than one

given 2 weeks.   When viewed from an accused’s

perspective, a continuance can have a profound

substantive consequence, depending on the skill,


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United States v. Jones, No. 99-0252/NA


experience, and workload of his or her lawyer.

      Whether or not the Appellate Government Division’s

actions were non-substantive in this case, Colonel

Dorman's unrebutted affidavit and the majority opinion

make clear that he took no action whatsoever involving

this case.    Colonel Dorman did not participate as counsel

or express an opinion concerning the merits of this case.

Further, while he set office policies and made clear to

his subordinates that he was in command of the appellate

government ship, the policy in question was applicable to

all cases and, once established, did not require Colonel

Dorman's concurrence or consent before it was applied to

particular cases.    Therefore, Judge Dorman's impartiality

cannot reasonably be questioned under § 455(a), unless we

adopt an appearance standard that posits an inherent

issue of partiality whenever an appellate government

attorney subsequently serves as a judge of the Court of

Criminal Appeals.

             Of course, there may be a difference between

what is legally required and what is prudent.    I readily

agree with the majority that the difficulty in applying

§ 455(a) would be avoided if judges appointed to the

Courts of Criminal Appeals after prior appellate division

service recused themselves from cases that were pending


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United States v. Jones, No. 99-0252/NA


during their tenure in the division.




                           5
United States v. Jones, 99-0252/NA



    SULLIVAN, Judge (dissenting):


    I write to reaffirm my position in the Lynn case.    See United

States v. Lynn, 54 MJ 202, 207 (2000)(Sullivan, J., dissenting).

Here, Colonel Dorman was the Chief of the Appellate Government

Division when his government subordinate filed opposition to two

of appellant’s motions in this case.    Judge Dorman thus later sat

on a case in which he had a prior direct supervisory-attorney

role.   In my view, this contravenes Congress’ will as reflected

in 28 USC § 455(b)(3) and 455(a).    See United States v.

Arnpriester, 37 F.3d 466 (9th Cir. 1994).   In addition, the

acknowledged filing of opposing legal documents by the Appellate

Government Division in this case was more compelling than the

Lynn case and warranted relief under the rationale of that case.

I would remand this case.



    As such, I respectfully dissent.
