UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before
ALDYKIEWICZ, SALUSSOLIA, and WALKER
Appellate Military Judges

UNITED STATES, Appellee
v.
Private E2 ERICK C. BLACK
United States Army, Appellant

ARMY 20180683

Headquarters, United States Army Medical Department Center and School
Jacob D. Bashore, Military Judge
Lieutenant Colonel Joshua A. Berger, Staff Judge Advocate

For Appellant: Lieutenant Colonel Tiffany D. Pond, JA; Major Jack D. Einhorn, JA;
Captain Jason X. Hamilton, JA (on brief).

For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Wayne H.
Williams, JA; Major Craig J. Schapira, JA; Captain Christopher K. Wills, JA (on
brief).

28 August 2020

ALDYKIEWICZ, Senior Judge:

Appellant alleges that he was deprived of a fair trial because “the military
judge had an obligation under [Rule for Courts-Martial] 902(a) to disqualify himself
from the proceedings.”! Appellant also cites to Rule for Courts-Martial [R.C.M.]
902(b)(1), arguing actual bias on the part of the military judge entitles him to relief.

 

'A military judge sitting as a general court-martial convicted appellant, contrary to
his pleas, of one specification of rape of a child and one specification of sexual
abuse of a child, in violation of Article 120b, Uniform Code of Military Justice, 10
U.S.C. § 920b (2016) [UCMJ]. Appellant was acquitted of one specification of
sexual abuse of a child, in violation of Article 120b, UCMJ. The convening
authority approved the adjudged sentence of a dishonorable discharge, confinement
for twelve years and three months, and reduction to the grade of E-1.
BLACK--ARMY 20180683

We disagree. First, we conclude appellant fails to establish actual bias under
R.C.M. 902(b)(1). Second, regarding appearance bias under R.C.M 902(a), we find
appellant waived the issue and, even assuming appellant did not waive the claim, we
find no error by the military judge, plain or otherwise.”

BACKGROUND

Appellant stands convicted of raping and sexually abusing his nine-year-old
adopted daughter LB in December 2016. Appellant’s abuse involved digitally
penetrating LB and touching her breasts while she lay on the couch next to him. The
abuse came to light when RB, LB’s eleven-year-old sister, told their mother, CB,
that she suspected appellant was touching LB. The next morning, CB called law
enforcement, an investigation ensued, and appellant was prosecuted.

Prior to trial, the government filed two motions to introduce propensity
evidence under Military Rule of Evidence [Mil. R. Evid.] 414. The first motion
alleged uncharged acts of child molestation perpetrated by appellant against his two
adopted daughters, LB and RB; the second motion alleged uncharged acts of child
molestation perpetrated by appellant against his younger sister, AW.

On 23 October 2018, the military judge issued a written ruling on the first
motion (LB/RB ruling). The military judge determined the following evidence was
admissible pursuant to Mil. R. Evid. 414: (1) all allegations of appellant touching
LB and RB; (2) appellant’s alleged exposure of his penis in the physical presence of
RB; (3) appellant’s alleged masturbation in the physical presence of RB; and (4)
appellant’s alleged showing of pornographic material to RB. The military judge did
not admit evidence of appellant’s alleged showing of pornographic material to LB,
finding that LB’s viewing of such material was inadvertent and involved no
intentional act by appellant.

On 8 November 2018, the military judge issued a written ruling on the second
motion (AW ruling). The military judge ruled admissible all allegations of appellant
touching AW prior to her turning sixteen years old. The military judge ruled

inadmissible any evidence of alleged acts that occurred after AW turned sixteen.?

 

* Appellant also challenges the legal and factual sufficiency of his conviction, in
addition to personally raising matters pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982). After giving full and fair consideration to appeliant’s legal and
factual sufficiency arguments, as well as those matters personally raised, we find all
to be without merit and worthy of neither discussion nor relief.

3 Graphic or detailed descriptions of the offered propensity evidence is unnecessary

to resolution of the disqualification issue. Further, appellant does not challenge the

substance or accuracy of either of the military judge’s Mil. R. Evid. 414 rulings.
(continued .. .)
BLACK—-ARMY 20180683

On 17 December 2018, appellant elected, both orally and in writing, to be
tried by a military judge alone, the same military judge that ruled on both of the Mil.
R. Evid. 414 motions.

Appellant alleges for the first time on appeal that the military judge’s AW
ruling shows a “trier of fact with pre-established beliefs as to the credibility of
particular witnesses and the guilt of the accused.” As a result, appellant argues “the
military judge had an obligation under R.C.M. 902(a) to disqualify himself from the
proceedings.”

Appellant’s claim rests entirely on a comparison of the words used by the
military judge in his LB/RB ruling and his AW ruling. In appellant’s view, the latter
is “rife with definitive conclusions demonstrating the calcification of his opinion on
the evidence and the appellant.”* Appellant’s comparison of the two rulings focuses,
in part, on the frequency with which the military judge either did or did not use the
word “alleged” or “allegedly” to refer to the offered propensity evidence. Appellant
also focuses on whether the military judge referred to the offered propensity
evidence as “claims” made by LB, RB, or AW. Appellant notes, “[b]y the time of
his ruling on Mrs. AW’s testimony, the word ‘claims’ does not appear even once—
removing all pretense of neutrality.”

LAW AND DISCUSSION

“When an appellant, as in this case, does not raise the issue of disqualification
until appeal, we examine the claim under the plain error standard of review.” United
States v. Martinez, 70 M.J. 154, 157 (C.A.A.F. 2011) (citing United States v. Jones,
55 M.J. 317, 320 (C.A.A.F. 2001)). “Plain error occurs when (1) there is error, (2)
the error is plain or obvious, and (3) the error results in material prejudice.” /d.
(citing United States v. Maynard, 66 M.J. 242, 244 (C.A.A.F. 2008)).

“An 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)). Rule for Courts-Martial 902 implements this right,
providing “two bases for disqualification of a military judge.” Martinez, 70 M.J. at
157. The first basis, addressing the appearance of bias, places a duty upon a
military judge to “disqualify himself or herself in any proceeding in which that

 

(... continued)

+ Nowhere in his pleadings before this court does appellant allege or cite to anything
the military judge did or said during the Article 39(a), UCMJ sessions to litigate the
Mil. R. Evid. 414 evidence that allegedly showed bias. Further, our review of the
record reveals no evidence supporting appellant’s claim of bias.
BLACK—ARMY 20180683

military judge’s impartiality might reasonably be questioned.” R.C.M. 902(a). The
second basis, addressing actual bias, involves five specific circumstances listed
under R.C.M. 902(b). The circumstance relevant to appellant’s assignment of error
is found in subsection (1), which mandates recusal when a military judge “has a
personal bias or prejudice concerning a party or personal knowledge of disputed
evidentiary facts concerning the proceeding.” R.C.M. 902(b)(1); see Butcher, 56
M.J. at 90 (noting R.C.M. 902(a) governs the appearance of bias while R.C.M.
902(b) governs specific disqualifying circumstances).

Although appellant’s pleadings focus mainly on appearance bias under R.C.M.
902(a), he also cites R.C.M. 902(b)(1), which covers actual bias. We address both,
beginning with actual bias then turning to appearance bias. For reasons discussed
below, we disagree that any relief is warranted. A review of appellant’s court-
martial, to include the two Mil. R. Evid. 414 rulings, establishes neither actual bias
under R.C.M. 902(b)(1) nor appearance bias under R.C.M. 902(a). To the contrary,
we find appellant was tried by a neutral, detached, and impartial trier of fact who
correctly ruled on both Mil. R. Evid. 414 motions.°

A, Actual Bias under R.C.M. 902(b) (1)

A military judge shall disqualify himself when the military judge “has a
personal bias or prejudice concerning a party or personal knowledge of disputed
evidentiary facts concerning the proceeding.” R.C.M. 902(b)(1).

“To be disqualifying under R.C.M. 902(b)(1) the judge’s bias must be based
upon extra-judicial, personal knowledge, not knowledge gained through performance
of judicial duties.” United States v. Wiggers, 25 M.J. 587, 592 (A.C.M.R. 1987)
(citing United States v. Grinnell Corp., 384 U.S. 563, 580-83 (1966); In re
international Business Machines Corp., 618 F.2d 923, 928 (2d Cir. 1980)).
“<FPjersonal’ means the bias or prejudice ‘must stem from an extrajudicial source
and result in an opinion on the merits on some basis other than what the judge
learned from his participation in the case.’” United States v. Harvey, 67 M.J. 758,
764 (A.-F. Ct. Crim. App. 2009) (quoting United States v. Kratzenberg, 20 M.J. 670,
672 (A.F.C.M.R. 1985)); see Liteky v. United States, 510 U.S. 540, 549-51 (1994),

Appellant cites to nothing extrajudicial in support of any claim of actual bias
and our review of the record, in its entirety, reveals none. To the extent that
appellant relies on R.C.M. 902(b)(1) as a basis for relief, that reliance is misplaced.

 

> We find the absence of any independent legal challenge by appellant to the Mil. R.
Evid. 414 rulings as evidence undermining his claim of bias, under both R.C.M.
902(a) and 902(b). Regardless, we reach the same result.
BLACK—ARMY 20180683
B, Appearance Bias under R.C.M. 902(a)

“{A] military judge shall disqualify himself or herself in any proceeding in
which that military judge’s impartiality might reasonably be questioned.”
R.C.M. 902(a). Appearance bias is determined objectively. United States v. Hasan,
71 M.J. 416, 418 (C.A.A.F. 2012). Reviewing courts consider “[a]ny conduct that
would lead a reasonable man knowing all the circumstances to the conclusion that
the judge’s impartiality might reasonably be questioned.” Jd. (quoting United States
v. Kincheloe, 14 M.J. 40, 50 (C.M.A. 1982) (internal quotation marks omitted)).
“As in the civilian context, recusal based on the appearance of bias is intended to
‘promote public confidence in the integrity of the judicial process.’” /d. (quoting
Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 858 n.7 (1988)).
“[W]hat matters is not the reality of bias or prejudice but its appearance.” Id.
(quoting Liteky, 510 U.S. at 548) (internal quotation marks omitted}.

i. Waiver

Whether an appellant has waived an issue is a legal question we review de
novo. United States v. Davis, 79 M.J. 329, 331 (C.A.A.F. 2020) (citing United
States v. Haynes, 79 M.J. 17, 19 (C.A.A.F. 2019)). “[ Waiver is the intentional
relinquishment or abandonment of a known right.” /d. (quoting United States v.
Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009) (internal quotation marks omitted)).
While we review forfeited issues for plain error, “we cannot review waived issues at
all because a valid waiver leaves no error for us to correct on appeal.” Jd. (quoting
United States v. Campos, 67 M.J. 330, 332 (C.A.A.F. 2009) (internal quotation
marks omitted)). Unlike claims based on actual bias, disqualification under R.C.M.
902(a) is subject to waiver after full disclosure on the record of the basis for
disqualification. R.C.M. 902(¢c); see United States v. Quintanilla, 56 M.J.37, 77
(C.A.A.F. 2001) (noting appearance bias is waivable after full disclosure on the
record of the basis for disqualification).

The basis for appellant’s claim of appearance bias under R.C.M. 902(a) is the
“janguage and tone” of the military judge’s AW ruling. Appellant claims the
language and tone of the military judge’s AW ruling indicates bias that would be
readily apparent to any “objective observer.” Appellant argues that the military
judge’s apparent bias is amplified when comparing the military judge’s language in
the AW ruling with his language in the LB/RB ruling.

Notwithstanding two adverse Mil. R. Evid. 414 rulings, appellant signed a
request for trial by military judge alone, knowing the same military judge would
serve as his trier of fact. See UCM] art. 16(1}(B) (permitting trial by a military
judge alone if requested by the accused after “knowing the identity of the military
judge ....”). We find that appellant was fully informed and aware of what he now
alleges as the basis for disqualification under R.C.M. 902(a). To argue that the basis
BLACK—ARMY 20180683

for disqualification was not fully disclosed to appellant before he requested trial by
military judge alone would be a classic “form over substance” argument. “Full
disclosure” does not require a military judge to highlight all prior adverse rulings
before accepting an accused’s election to be tried before that same military judge.
Accordingly, on the record before us, we find appellant waived any claim for
disqualification of the military judge under R.C.M. 902(a).

2. R.C.M. 902(a), the Narrow View

Assuming appellant did not waive the issue, we find no error, plain or
otherwise, warranting relief. “‘[W]hen a military judge’s impartiality is challenged
on appeal, the test 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 157-58 (quoting United States v. Burton, 52
M.J. 223, 226 (C.A.A.F. 2000)). “Because not every judicial disqualification
requires reversal, we have also adopted the standards announced by the Supreme
Court in Liljeberg to determine whether a military judge’s conduct warrants that
remedy to vindicate public confidence in the military justice system.” /d. (citing
Butcher, 56 M.J. at 92).

Appellant claims the military judge’s AW ruling creates an appearance of
bias.© Viewed objectively, we find that a “reasonable man knowing all the
circumstances [related to the ruling]” would not reasonably question the military
judge’s impartiality, Kincheloe, 14 M.J. at 50.

While we acknowledge that the LB/RB and AW rulings differ in language,
appellant was strategic in his pleadings before this court to highlight only those
parts of the AW ruling that he believed furthered his argument. The government,
however, in its brief provided, as the late Paul Harvey would say, “the rest of the
story.” For example, in conducting his required Mil. R. Evid. 403 balancing test, the
military judge referred to the proffered propensity evidence as “allegations” no less
than seven times. Later in his ruling, the military judge stated, “the Accused
allegedly sexually abused [AW] through his teenage years and into his early adult
years.” In that same paragraph, the military judge referred to the “alleged
incidents.” The military judge concluded his ruling by referring to alleged child
sexual abuse, not proven abuse, stating, “[e]vidence of a similar uncharged instance
of child molestation by the Accused on an alleged child sexual assault victim is
admissible.”

 

° Appellant cites to no other rulings, actions, or conduct by the military judge
beyond the Mil. R. Evid. 414 rulings in support of his bias challenge and our review
of the record reveals none.
BLACK—-ARMY 20180683

Appellant further complains that, by the time of his AW ruling, the “military
judge had already formed an opinion as to the credibility of witnesses.” We
disagree.

First, evidence taken and determinations made during Article 39(a), UCMJ
sessions, such as those surrounding the litigation of the two Mil. R. Evid. 414
motions at issue, is not evidence before the court on the merits, absent some
extraordinary and unwise agreement by the parties, an agreement requiring the
consent of the military judge. “The right to make motions comes before plea;
evidence on the merits comes after.” United States v. Elmore, 1 M.J. 262, 263-64
(C.M.A. 1976). In United States v. Metcalf, the military judge considered “Article
39(a) testimony on the merits at the defense’s request.” 1993 CMR LEXIS 560, *5
(A.F.C.M.R. 30 Nov. 1993) (unpublished). Discouraging the military judge’s action,
the court stated:

We have tried hard to discourage this practice, for it rarely
turns out to be as convenient as the parties expect when
they indulge in it. Instead, it leads to endless and
contentious disagreements about just what has already
been heard in the prior session and whether the agreement
of the parties permits consideration of that evidence on the
merits.

id. at *5 n.4 (citing United States v. Collier, 36 M.J. 501, 506-07 n.11 (A.F.C.M.R.
1992); United States v. Williams, 35 M.J. 812, 814 n.3 (A.F.C.M.R. 1992)). No such
agreement was made in appellant’s case. There is no evidence that appellant’s guilt
was based on any propensity evidence not properly admitted during the merits
portion of the trial.

Second, when military judges rule on matters of conditional relevance, “the
trial court neither weighs credibility nor makes a finding that the Government has
proved the conditional fact by a preponderance of the evidence. The court simply
examines all the evidence in the case and decides whether the jury could reasonably
find the conditional fact... by a preponderance of the evidence.” Huddleston v.
United States, 485 U.S. 681, 690 (1988) (citation omitted); see United States vy.
Solomon, 72 M.J. 176, 179 (C.A.A.F. 2013) (citing United States v. Wright, 53 M.J.
476, 483 (C.A.A.F. 2000) (applying the Huddleston standard in the Mil. R. Evid. 413
context)); see also United States v. Acton, 38 M.J. 330, 333 (C.M.A. 1993); United
States v. Mirandes-Gonzalez, 26 M.J. 411, 413-14 (C.M.A. 1988) (noting that when
addressing conditional relevance of uncharged crimes, wrongs, or other acts (i.e.,
evidence offered under Mil. R. Evid. 404(b)), “the task for the military judge is to
determine whether there is sufficient evidence for a reasonable court member to
believe that the accused in fact committed the extrinsic offense”).
BLACK—-ARMY 20180683

Nothing in the record, to include the AW ruling at issue, reveals that the
military judge had either predetermined the credibility of any witnesses, to include
AW, or judged appellant prior to the close of the merits. In other words, the record
is devoid of “clear evidence” to rebut the presumption that the military judge knew
and followed the law.’ United States v. Erickson, 65 M.J. 221, 225 (C.A.A.F. 2007)
(citing United States v. Mason, 45 M.J. 483, 484 (C.A.A.F. 1997)}.

In conclusion, an objectively reasonable observer aware of all the relevant
facts and circumstances concerning the military judge’s Mil. R. Evid. 414 rulings
would harbor no questions about the impartiality of the military judge. We find no
error, plain or otherwise. Even assuming the military judge plainly erred by failing
to sua sponte recuse himself, appellant identifies no prejudice flowing from the
military judge’s Mil. R. Evid. 414 rulings and we find none.

3. Liljeberg, the Broad View

In those rare cases where recusal was required but no material prejudice
resulted, we are guided by the Court’s decision in Liljeberg. In Liljeberg, the Court
considered three factors in determining “whether a judgment should be vacated”
based on a judge’s appearance of partiality: “[1] the risk of injustice to the parties
in the particular case, [2] the risk that the denial of relief will produce injustice in
other cases, and [3] the risk of undermining the public’s confidence in the judicial
process.” 486 U.S. at 864. We apply the same three-part test in analyzing cases
involving a military judge’s appearance of partiality pursuant to R.C.M. 902(a). See
Quintanilla, 56 M.J. at 45.

We find Liljeberg factors one and two warrant neither discussion nor relief.
While Liljeberg factor three warrants discussion, it too warrants no relief. Factor
three is “similar to the standard applied in the initial R.C.M. 902(a) analysis.”

 

‘In arriving at our decision, we note that the military judge’s AW ruling contains,
immediately preceding its conclusion, the following:

The accused allegedly sexually abused his sister into his adult years in
substantially the same way he abused Miss LB . . . The evidence is
sufficiently credible that the members could find by a preponderance of
the evidence that the Accused’s repeated acts with [AW] demonstrate a
propensity to sexually abuse young, female members who are subject to
his authority and control. (emphasis added).

In context, and having considered the AW ruling in its entirety, we find use of the
term “credible” to describe the offered propensity evidence not inconsistent with
Huddleston and its progeny regarding a military judge’s role when ruling on matters
of conditional relevance.
BLACK—ARMY 20180683

Martinez, 70 M.J. at 160. Factor three is viewed objectively, through the eyes ofa
reasonable member of the public. The application of Liljeberg factor three,
however, is broader than a strict R.C.M. 902(a) analysis. See Martinez, 70 M.J. at
160 (“[W]e do not limit our review to facts relevant to recusal, but rather review the
entire proceedings, to include any post-trial proceeding, the convening authority
action, [appellate proceedings], or other facts relevant to the Liljeberg test.”).

In appellant’s case, looking beyond the Mil. R. Evid. 414 rulings and
considering the totality of the circumstances, we are certain that no risk exists of a
reasonable member of the public losing confidence in the judicial process. An
objective observer watching appellant’s court-martial would have seen an impartial
military judge whose two rulings were thorough, well-reasoned, and legally correct.
The objective observer would be aware that appellant personally requested that the
same military judge preside over his court-martial, with full knowledge of the
military judge’s prior rulings. The objective observer would know that the military
judge complimented the defense team on its preparedness and efforts in defending
appellant. The objective observer would understand that the military judge
sustained meritorious defense objections and overruled government objections
throughout the proceedings, at one point telling trial counsel that he would not do
the government’s job, stating, “I’m not going to carry your water for you, trial
counsel.”

Additionally, the objective observer would be aware of the military judge’s
prompt remedial action in sustaining a defense objection to trial counsel’s improper
findings argument that urged the military judge to provide justice for RB and AW,
even though neither was a named victim on the charge sheet. See United States v.
Schroder, 65 M.J. 49, 58 (C.A.A.F. 2007) (finding the trial counsel’s sentencing
argument was improper because it “exhorted the members to administer justice for
the purported victims” of uncharged misconduct). After correctly sustaining the
defense counsel’s objection to trial counsel’s improper argument, the military judge
stated he would not be swayed by the improper argument and that he was “very
familiar” with the limitations of Mil. R. Evid. 414 evidence.

Finally, and perhaps most notably, the objective observer would know the
military judge acquitted appellant of Specification 2 of the Charge.

In conclusion, the military judge who presided over appellant’s case was
nothing less than a neutral, detached, and impartial trier of fact. For these reasons,
an objective observer familiar with all the facts and circumstances of the entire
proceedings would be confident in the fairness of both appellant’s trial and the
court-martial process.
BLACK—ARMY 20180683

CONCLUSION
The findings of guilty and the sentence are AFFIRMED.

Judges SALUSSOLIA and WALKER concur.

FOR THE CQURT:

  

MALCOLM H.
Clerk of Court

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