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

                               Before
          J.R. MCFARLANE, K.M. MCDONALD, M.C. HOLIFIELD
                      Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                        STEVEN W. MYRICK
                  SERGEANT (E-5), U.S. MARINE CORPS

                            NMCCA 201200404
                        SPECIAL COURT-MARTIAL


Sentence Adjudged: 1 June 2012.
Military Judge: LtCol Robert G. 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 E. Theis, JAGC, USN.
For Appellee: LT Ann E. Dingle, JAGC, USN.

                          23 September 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 of violating a lawful general order by engaging
in inappropriate relationships with two potential recruits and
one specification of making a false official statement, in
violation of Articles 92 and 107, Uniform Code of Military
Justice, 10 U.S.C. §§ 892 and 907. The military judge sentenced
the appellant to confinement for five months, reduction to pay
grade E-1, and a bad-conduct discharge. A pretrial agreement
had no effect on the sentence. The convening authority (CA)
approved the sentence as adjudged and, except for the punitive
discharge, ordered it executed.

     This case is before us upon remand by the United States
Court of Appeals for the Armed Forces (CAAF). We begin with a
brief recitation of the case’s procedural posture. In his
original appeal, the appellant claimed that the military judge
was disqualified by his inflexible attitudes about sentencing
and by allowing his perceptions of what Congress and the
Commandant of the Marine Corps expect from Marine Corps courts-
martial to enter into his deliberations. The appellant’s
assignment also alleged unlawful command influence. In our
initial decision, United States v. Myrick, No. 201200404, 2013
CCA LEXIS 102 (N.M.Ct.Crim.App. 19 Feb 2013) (per curiam), we
affirmed the findings and sentence as approved by the CA.

     The appellant’s subsequent appeal resulted in the CAAF
setting aside our opinion and returning 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, No. 201100404, 2014 CCA LEXIS 358, unpublished op.
(N.M.Ct.Crim.App. 17 Jun 2014). United States v. Myrick,
__M.J.__ , No. 13-0444/MC, 2013 CAAF LEXIS 1108 (C.A.A.F. Sept.
23, 2013) (summary disposition). The appellant has essentially
reframed his original assignment of error, now claiming that he
was deprived of his constitutional right to an impartial judge.

     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

     The appellant’s claimed error focuses on post-trial
comments made by the military judge. Approximately three weeks
after he sentenced the appellant, the military judge presented a
Professional Military Education (PME) lecture to five Marine law
school students on active duty for the summer. This training

                                2
regarded the practice of military justice in general, and the
role of a trial counsel in particular. In discussing trial
strategy, the military judge encouraged the junior officers to
charge and prosecute cases aggressively, referred to “crushing”
the accused, stated that Congress and the Commandant of the
Marine Corps wanted more convictions, and opined that trial
counsel should assume the defendant is guilty. Two of the
officers who attended the PME provided written statements
regarding the military judge's comments, which now form the
basis for the appellant's assigned error.1 A fair reading of one
statement is that the law student found the military judge's
comments “odd” and “somewhat bothersome,” but also believed some
of the comments were made in jest.

     These comments by the military judge were the subject of a
hearing pursuant to United States v. DuBay, 37 C.M.R. 411
(C.M.A. 1967). Appendix to Kish, 2014 CCA LEXIS 358, at 15-39
(DuBay Hearing Findings of Fact and Conclusions of Law of 15
July 2013) (hereinafter DuBay Ruling). Based on the context of
these 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.” This court 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.). DuBay
Ruling at 38. The findings and the conclusions from the DuBay
Ruling remain those of this court.

     Additional facts that concern the procedural posture of
this case or are necessary to discuss the assignments of error
are incorporated below.

                  Disqualification of Military Judge

     We review whether a military judge has acted appropriately
de novo.2 “‘An accused has the right to an impartial judge.’”

1
  One of the officers who provided a statement was the assistant trial counsel
in this case, but his statement makes no mention of the appellant's trial.
2
  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); United
States v. Stefan, 69 M.J. 256, 258 (C.A.A.F. 2010) (considering de novo the
                                      3
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).

     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 v. Health
Service Acquisition Corp., 486 U.S. 847, 860 (1988)).

     The appellant alleges both actual and apparent bias. As
this court has already held that the military judge’s PME
statements do not support a determination of actual bias against
service member defendants,3 and the appellant has made no showing
that the military judge had a personal bias or prejudice
concerning him or his case, we find no actual bias here.
Accordingly, we now look to whether there was apparent bias
concerning the appellant’s case.

     The test we apply 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)).

     The appellant quotes the military judge’s PME statements,
arguing that their close relationship in time to his court-
martial indicates an actual bias on the part of the military



qualification of a staff judge advocate to make the post-trial
recommendation).
3
    Dubay Ruling at *38.


                                      4
judge.4 Again, we limit our examination to whether this temporal
relationship supports a finding of apparent bias. We find it
does not. 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 conclude this closeness in time, standing alone, is
insufficient to support a finding of apparent bias.

     The appellant has cited no examples at his court-martial
where the military judge acted improperly or in any way
demonstrated a lack of impartiality. A thorough reading of the
record reveals none. To the contrary, the military judge made
clear his willingness to help the trial defense counsel overcome
any difficulties in questioning a witness who had declined to
speak with him before trial.5 Unlike in Kish, the military judge
did nothing at trial to bring his impartiality into question.6
Thus, in this case, the effect of the PME comments is not
compounded with anything at trial to reach the level of
undermining public confidence in the judicial system’s
integrity.

     The appellant does cite to the sentence of five months’
confinement and a punitive discharge as evidence of bias, saying
it reflects the military judge’s need to “crush [convicted]
Marines and get them out.”7 The facts here do not support this
conclusion. Based on our review of the record, including the
appellant’s extenuation and mitigation evidence, we find the
sentence to be within the range of reasonable and expected
sentences, and not so severe as to cause concern. We,
therefore, do not conclude the five months’ confinement and bad-
conduct discharge support a finding of apparent bias.8


4
    The PME lecture occurred 20 days after the appellant’s court-martial.
5
  Specifically, the military judge said, “I was going to give you wide
latitude,” and, “I just wanted you to make sure that you knew I’d help you
out if you needed it.” Record at 71.
6
    We also note that, unlike in Kish, the appellant here pleaded guilty.
7
    Appellant’s Brief of 3 Jul 2014 at 20-21.
8
  This sentence was less than what the appellant was willing to accept under
the pretrial agreement he negotiated with the CA.


                                        5
     As we noted in Kish, the military judge’s statements during
the PME lecture “reflect exceptionally poor judgment and invite
questions regarding judicial temperament and professionalism.”9
An examination of the entire circumstances surrounding the PME
lecture, however, places the statements properly in context. We
are satisfied that any reasonable person knowing all the
circumstances of the lecture, as well as the manner in which the
military judge conducted the proceedings in this case, would not
question the integrity of the judicial system. Unlike in Kish,
there is no “nexus between the military judge’s conduct . . .
and his later comments” at the PME lecture. Kish, 2014 CCA
LEXIS 358 at *13. Rather, the contrast between the military
judge’s comments and his performance during the court-martial
tends to underscore this court’s conclusion that he was speaking
during the lecture in character, and not in his own voice.
Accordingly, we find no apparent bias.10

                            Unlawful Command Influence

   As part of his argument regarding the post-trial comments made
by the military judge, the appellant raises the issue of
unlawful command influence. When raising this issue on appeal,
the appellant must: “‘(1) show facts which, if true, constitute
unlawful command influence; (2) show that the proceedings were
unfair; and, (3) show that the unlawful command influence was
the cause of the unfairness.’” United States v. Dugan, 58 M.J.
253, 258 (C.A.A.F. 2003) (quoting United States v. Biagase, 50
M.J. 143, 150 (C.A.A.F. 1999)) (additional citation omitted).
Here, the appellant claims the existence of unlawful command
influence based on a report that the military judge made
comments that Congress and the Commandant of the Marine Corps
want to see more convictions. Even if this were enough to
satisfy the first prong, the appellant fails to show that his
proceeding was unfair and that the unlawful command influence
was the cause of the unfairness. The events are simply too
attenuated from the facts of the appellant's court-martial to
support a retroactive finding of unfairness in the proceedings.


9
     DuBay Ruling at *38.
10
  In our original opinion in this case, we assumed evidence of apparent bias
and looked for prejudice under Liljeberg. (We found none.) Now, having the
benefit of the DuBay hearing in Kish, we do not believe a reasonable man
knowing all the circumstances could question the military judge’s
impartiality in this case.
                                      6
    While “[t]here is no doubt that the appearance of unlawful
command influence is as devastating to the military justice
system as the actual manipulation of any given trial. . . .
there must be something more than an appearance of evil to
justify action by an appellate court in a particular case.
‘Proof of [command influence] in the air, so to speak, will not
do.’ We will not presume that a military judge has been
influenced simply by the proximity of events which give the
appearance of command influence in the absence of a connection
to the result of a particular trial.” United States v. Allen,
33 M.J. 209, 212 (C.M.A. 1991) (citations, internal quotation
marks, and footnote omitted).

                           Conclusion

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


                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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