              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.

                         JOSHUA W. TIGER
                  SERGEANT (E-5), U.S. MARINE CORPS

                            NMCCA 201200284
                        SPECIAL COURT-MARTIAL


Sentence Adjudged: 19 April 2012.
Military Judge: LtCol Robert G. Palmer, USMC.
Convening Authority: Commanding Officer, First Marine Corps
District, Eastern Recruiting Region, Garden City, NY.
Staff Judge Advocate's Recommendation: Col E.L. Kleis,
USMC.
For Appellant: LT Carrie E. Theis, JAGC, USN.
For Appellee: LT Ann E. Dingle, 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 one
specification of violating a lawful general order (engaging in
inappropriate social relationships with a prospective recruit
applicant), one specification of making a false official
statement, one specification of sodomy with a prospective
recruit applicant, and one specification of adultery in
violation of Articles 92, 107, 125, and 134 Uniform Code of
Military Justice, 10 U.S.C. §§ 892, 907, 925, and 934. The
military judge sentenced the appellant to confinement for four
months, forfeiture of $994.00 pay per month for four months,
reduction to pay grade E-1, and a bad-conduct discharge. The
convening authority (CA), in accordance with the pretrial
agreement, approved the sentence as adjudged, but suspended all
confinement for twelve months 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 asserted two assignments of
error; First, that a bad-conduct discharge was unjustifiably
severe and second, 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 also alleged unlawful command
influence. In our initial decision, United States v. Tiger, No.
201200284, 2012 CCA LEXIS 718, unpublished op. (N.M.Ct.Crim.App.
30 Nov 2012) (per curiam) (hereinafter Tiger I), we affirmed the
findings and sentence as approved by the CA.

     The appellant's subsequent appeal from our decision
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 after our decision in
United States v. Kish, No. 201100404, 2014 CCA LEXIS 358,
unpublished op. (N.M.Ct.Crim.App. 17 Jun 2014) (hereinafter
Kish). United States v. Tiger, 73 M.J. 54 (C.A.A.F. Sep. 23,
2013) (summary disposition). The appellant has essentially
reframed his second 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. 1




1
  For the reasons contained in our decision dated 30 November 2012, we find
that the approved sentence is appropriate for this offender and his offenses,
and that the appellant has not shown that his proceeding was unfair and that
unlawful command influence was the cause of the unfairness.
                                      2
                   Factual and Procedural Background

     In March 2011, the appellant was serving as a recruiter
when he entered into a sexual relationship with an eighteen-
year-old high school senior who the appellant had recently
contracted into the United States Marine Corps’ Delayed Entry
Program. Over a two-month period, the appellant engaged in
sexual intercourse and sodomy with this recruit in his office,
his residence, and in a public parking lot. Their relationship
ended when someone reported it to the appellant’s command.

     The appellant now claims error, focusing on post-trial
comments made by the military judge approximately two months
after his court-martial. Nine 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. 2

     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 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.

      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). The results of the DuBay hearing are contained
in the Appendix to Kish. 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.” Kish 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.). Id. We adopt the findings and conclusions from Kish and
incorporate them therein.



2
  The military judge sentence the appellant on 19 April 2012. Record at 96.
The PME was given by the military judge on 21 June 21, 2012. Kish at *22.


                                      3
     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. 3 “‘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).

     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
Services Acquisition Corp., 486 U.S. 847, 860 (1988)).

     Here, 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, 4 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 in this case.
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

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); 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
    Kish at *38.
                                      4
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
judge. 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. The military judge
conducted a thorough providence inquiry, entered findings
consistent with the appellant’s pleas and adjudged a sentence
well below the jurisdictional maximum. 5 A thorough reading of
the record reveals none. 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 which included 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, 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 four
months’ confinement, forfeiture of $994.00 pay per month for
four months, being reduced to E-1 pay grade, and a bad-conduct
discharge support a finding of apparent bias.

     As we noted in Kish, the military judge’s statements during
the PME lecture “reflect exceptionally poor judgment and invite

5
   The military judge’s sentence of four month’s confinement was less than the
twelve months of confinement requested by the trial counsel. Record at 83.
6
    We also note that, unlike in Kish, the appellant here pleaded guilty.

7
    Appellant's Brief of 3 Jul 2014 at 20.


                                       5
questions regarding judicial temperament and professionalism.”
Kish at *38. 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. Id. 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. 8

                                 Conclusion

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


                                       For the Court



                                       R.H. TROIDL
                                       Clerk of Court




8
   In our original opinion in this case, we assumed evidence of apparent bias
and looked for prejudice under Liljeberg. We found none. Tiger I at *8.
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.


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