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

                                Before
           F.D. MITCHELL, J.R. MCFARLANE, M.C. HOLIFIELD
                       Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                       SAMUEL PACHECO, JR
                  SERGEANT (E-5), U.S. MARINE CORPS

                            NMCCA 201200366
                        SPECIAL COURT-MARTIAL

Sentence Adjudged: 26 April 2012.
Military Judge: LtCol Robert G. Palmer, USMC.
Convening Authority: Commander, 4th Marine Logistics Group,
Marine Forces Reserve, New Orleans, LA.
Staff Judge Advocate's Recommendation: Col E.R. Kleis,
USMC.
For Appellant: LT Carrie E. Theis, JAGC, USN.
For Appellee: LT Ann E. Dingle, JAGC, USN.

                            30 October 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 one
specification of larceny of military property of a value greater
than $500.00, in violation of Article 121, Uniform Code of
Military Justice, 10 U.S.C. § 921. The military judge sentenced
the appellant to confinement for six months, reduction to pay
grade E-1, and a bad-conduct discharge. The convening authority
(CA) approved the adjudged sentence, and, except for the
punitive discharge, ordered the sentence executed.            The pretrial
agreement had no effect on the adjudged sentence.

     This case is before us on remand by the Court of Appeals
for the Armed Forces (CAAF). We begin with a brief recitation
of the facts and procedural background. In his original appeal,
the appellant asserted two assignments of error: first, that
certain comments attributed to the military judge during a
training evolution reflect an arbitrary and inflexible attitude
about what constitutes an appropriate sentence, and call into
doubt the fairness and impartiality of the appellant’s court-
martial; and second, that a bad-conduct discharge is
inappropriately severe given the facts of the appellant’s case.
In our initial decision, United States v. Pacheco, No.
201200366, 2012 CCA LEXIS 702, unpublished op. (N.M.Ct.Crim.App.
30 Nov 2012) (per curiam), we affirmed the findings and the
sentence as approved by the CA.

     The appellant’s subsequent appeal resulted in the CAAF
setting aside our earlier opinion. United States v. Pacheco, 73
M.J. 54 (C.A.A.F. 2013) (summary disposition).   The CAAF
returned the case to the Judge Advocate General of the Navy for
remand to this court for further consideration after the
conclusion of our review in the case of United States v. Kish,
No. 201100404, 2014 CCA LEXIS 358, unpublished op.
(N.M.Ct.Crim.App. 17 Jun 2014), which is now completed. The
appellant has essentially reframed the judge’s inflexible
attitude assignment of error from his original pleading, 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
the sentence are correct in law and fact and that no error
materially prejudicial to the substantial rights of the
appellant was committed.1 Arts. 59(a) and 66(c), UCMJ.




1
  With respect to the appellant’s other original assignment of error, that his
sentence was inappropriately severe, upon de novo review we find that the
approved sentence is appropriate for this offender and his offenses. See
United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982); United States v.
Healy, 26 M.J. 394, 395 (C.M.A. 1988) United States v. Baier, 60 M.J. 382
(C.A.A.F. 2005).


                                      2
                              Background

     The appellant’s claimed error focuses on post-trial
comments made by the military judge. Approximately eight weeks
after he sentenced the appellant, the military judge presented a
Professional Military Education (PME) lecture to five Marine
Corps student judge advocates on temporary active duty during
the summer break from law school. This training 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
appellant, 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. 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 ordered by our superior court in Kish pursuant to United
States v. DuBay, 37 C.M.R. 411 (C.M.A. 1967). See United States
v. Kish, 2013 CAAF LEXIS 280 (C.A.A.F. Mar. 14, 2013). Based on
the context of these statements, we concluded in Kish 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.” 2014 CCA LEXIS
358 at *38. 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.). Kish, 2014 CCA LEXIS 358 at *38.
We adopt our findings and conclusions from Kish for purposes of
our review of the present case.

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




                                   3
                                 Discussion

     We review whether a military judge’s post-trial actions
demonstrate actual or apparent bias de novo.2 “‘An accused has a
constitutional 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)) (additional
citation omitted). A military judge’s impartiality is crucial
to the conduct of a legal and fair court-martial. United States
v. Quintanilla, 56 M.J. 37, 43 (C.A.A.F. 2001).

     “There is a strong presumption that a judge is impartial,
and a party seeking to demonstrate bias must overcome a high
hurdle, particularly when the alleged bias involves actions
taken in conjunction with judicial proceedings.” Id. at 44
(citation omitted). “The moving party has the burden of
establishing a reasonable factual basis for disqualification.
More than mere surmise or conjecture is required.” Wilson v.
Ouellette, 34 M.J. 798, 799 (N.M.C.M.R. 1991) (citing United
States v. Allen, 31 M.J. 572, 605 (N.M.C.M.R. 1990), aff’d, 33
M.J. 209 (C.M.A. 1991)).

     There are two grounds for disqualification of a military
judge, actual bias and apparent bias. R.C.M. 902; Quintanilla,
56 M.J. at 45. 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.”

     With respect to the appearance of bias, 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 158 (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 be reasonably questioned.”
Id. At 158-59 (citing United States v. Kinchloe, 14 M.J. 49, 50
(C.M.A. 1982)). “The appearance standard is designed to enhance

2
  The CAAF has applied this standard when resolving 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 qualification of a staff judge advocate to make the
post-trial recommendation).
                                      4
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 we concluded in Kish that the military judge's PME
statements do not support a determination of actual bias against
accused service members, 2014 CCA LEXIS 358 at *38, and finding
nothing in the appellant’s record of trial to suggest that the
military judge had a personal bias or prejudice concerning him
or his case, we limit our review here to whether there was
apparent bias.

     The appellant makes two arguments in support of a finding
of apparent bias. First, the appellant argues that the military
judge's PME statements, made 63 days after he sentenced the
appellant, were close enough in time to create an appearance of
bias on the part of the military judge.3 We disagree.
     The events were not close enough in time to lead a
reasonable person to question the military judge's impartiality
absent some nexus, which does not exist here. The PME comments
were largely limited to cases of sexual assault, child
pornography, and child abuse, whereas the appellant pleaded
guilty to larceny. Second, the appellant cites to his adjudged
sentence of six months’ confinement, reduction to pay grade E-1,
and a punitive discharge as evidence of bias, saying it aligns
with the military judge’s advice to “‘crush’ an accused no
matter the facts.” Appellant’s Brief of 3 Jul 2014 at 20.
Again, we disagree. Far from “crushing” the appellant, the
adjudged sentence was within the range of reasonable and
expected sentences for a Marine NCO who abused his position of
trust within a Government warehouse to steal over $9000.00 worth
of military equipment over a six month period. In fact, the
adjudged sentence was less than the nine months’ confinement
limitation that the appellant negotiated with the CA.
       Accordingly, we are satisfied that a 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.4

3
  The appellant argued that this indicated an actual bias. However, for the
reasons stated infra, we limit our examination to whether this temporal
relationship supports a finding of apparent bias.
4
  In our original opinion in this case, we assumed evidence of apparent bias
and looked for and found no prejudice under Liljeberg. Now, having the
                                      5
                                 Conclusion

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

                                       For the Court



                                       R.H. TROIDL
                                       Clerk of Court




benefit of the DuBay hearing in Kish, we do not believe a reasonable man
knowing all the circumstances would reasonably question the military judge's
impartiality in this case.
                                      6
