                          UNITED STATES, Appellee

                                         v.

                   Charles S. Roach, Senior Airman
                      U.S. Air Force, Appellant

                                  No. 07-0870

                          Crim. App. No. S31143

       United States Court of Appeals for the Armed Forces

                         Argued January 25, 2010

                           Decided May 10, 2010

BAKER, J., delivered the opinion of the Court, in which EFFRON,
C.J., ERDMANN, STUCKY, and RYAN, JJ., joined.


                                     Counsel

For Appellant: Dwight H. Sullivan, Esq. (argued); Major Shannon
A. Bennett (on brief).

For Appellee: Gerald Bruce, Esq. (argued); Colonel Douglas
Cordova, Lieutenant Colonel Jeremy S. Weber, and Captain G. Matt
Osborn (on brief); Captain Ryan N. Hoback.

Military Judge:    Jennifer Whittier




            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Roach, No. 07-0870/AF


     Judge BAKER delivered the opinion of the Court.

     A special court-martial composed of a military judge alone

convicted Appellant, pursuant to his pleas, of one specification

of dereliction of duty for willfully misusing his government

travel card and one specification of use of cocaine, in

violation of Articles 92 and 112a, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. § 892, 912a (2000).      Appellant was

sentenced to a bad-conduct discharge, confinement for four

months, and reduction to pay grade E-1.      The convening authority

approved the sentence as adjudged except for the confinement,

which was reduced to three months.

     A panel of the United States Air Force Court of Criminal

Appeals (CCA), which included Chief Judge James R. Wise,

affirmed Appellant’s conviction and sentence, despite not having

received a brief from Appellant.       United States v. Roach (Roach

I), No. ACM S31143, 2007 CCA LEXIS 402, at *3-*9, 2007 WL

2790660, at *1-*4 (A.F. Ct. Crim. App. Sept. 13, 2007).      The

unpublished, per curiam opinion of the CCA stated:

     While this Court is well aware of the appellant’s
     constitutional and statutory rights to effective
     counsel on appeal, that right is still subject to the
     rules of this Court. . . . Lengthy delays in reaching
     final resolution on adjudged punitive discharges in
     straight-forward cases such as this case do not serve
     either the interests of the accused or the interests
     of the Air Force. Therefore this Court is taking
     action sans a brief appellate counsel [sic].




                                   2
United States v. Roach, No. 07-0870/AF


2007 CCA LEXIS 402, at *3, 2007 WL 2790660, at *1 (citations

omitted).

     This Court granted review of two issues in January 2008,

and remanded the case to the CCA six months later on the ground

that “the court below proceeded to decide the case without

taking the steps required under Bell and May” to ensure that

Appellant could be provided representation under Article 70,

UCMJ, 10 U.S.C. § 870 (2000).    United States v. Roach (Roach

II), 66 M.J. 410, 419 (C.A.A.F. 2008).

     The parties agree that during the pendency of Appellant’s

first appeal to this Court, Chief Judge Wise commented on the

case during two public events.   The parties do not agree on what

was said by the Chief Judge or in what manner.1   Following the

Chief Judge’s remarks, Appellant moved for the recusal of the

CCA panel to which the case had been assigned on remand.   Chief

Judge Wise withdrew from the case on August 22, 2008.

Subsequent to that recusal, Chief Judge Wise wrote to Colonel

1
  The record contains two affidavits from audience members at
these events stating inter alia that Chief Judge Wise called the
Roach case a “test case” and that the CCA “attempted to ‘grab
power’ from CAAF.” Another affidavit included in the record
states that the Chief Judge explained “that there were two lines
of jurisprudence with regard to the issues in Roach. One . . .
supported the notion that [the CCA] had the power to decide the
issue, and the other undermined that notion.” Chief Judge Wise
also submitted an affidavit that expressed that he tried to
“drive home the point that even though we disagreed with our
superior court on a point of law, we follow its guidance and
direction even when it results in a loss of a tangible benefit
that otherwise would have accrued.”

                                  3
United States v. Roach, No. 07-0870/AF


Craig A. Smith, the executive to the Judge Advocate General of

the Air Force (TJAG), recommending that TJAG designate Senior

Judge Francis as the chief judge for the Roach case.2    TJAG

appointed Senior Judge Francis the same day.     Chief Judge

Francis then formed a special panel to consider Appellant’s case

and assigned himself to this panel.

       Appellant did not learn of Chief Judge Wise’s

recommendation until April 14, 2009,3 and immediately moved to

replace Senior Judge Francis.    The motion was denied, and that

same day, the CCA again affirmed Appellant’s conviction and

sentence.    United States v. Roach (Roach III), No. ACM S31143 (f

rev), 2009 CCA LEXIS 159, at *50, 2009 WL 1514650, at *16 (A.F.

Ct. Crim. App. Apr. 24, 2009).    Appellant now appeals to this

Court.4

2
    In its entirety, the body of Chief Judge Wise’s e-mail stated:

       I have recused myself from participating in the case
       of U.S. v. Roach, ACM S31143. As a result, I request
       that General Rives appoint Senior Judge Dave Francis
       as the Chief Appellate Military Judge for this case
       pursuant to Rule 1.3 of the United States Air Force
       Court of Criminal Appeals Rules of Practice and
       Procedure. I have attached a memorandum that, once
       signed by General Rives, will accomplish this goal.
3
  On December 31, 2008, Appellant moved to receive all
communications from the Chief Judge about his recusal, but the
CCA denied that part of the motion seeking communications made
after his recusal on August 25, 2008. Appellant obtained this
information in response to a Freedom of Information Act request.
4
    We granted review on the following issues:



                                  4
United States v. Roach, No. 07-0870/AF


        The threshold question asks whether the chief judge of a

court of criminal appeals may recommend to the Judge Advocate

General an acting chief judge for a case in which the chief

judge is recused.    For the reasons stated below we answer this

question in the negative, and we vacate the judgment of the CCA.

The case is remanded for a new Article 66, UCMJ, 10 U.S.C. § 866

(2006), review by an independent panel.

                               DISCUSSION

                   Issue I:   Actions after a Recusal

        The question of whether a judge has acted consistent with a

recusal, as a mixed question of law and fact, is reviewed de

novo.    See Walker v. United States, 60 M.J. 354, 356-57

(C.A.A.F. 2004) (performing a de novo review after granting a


  I.      WHETHER THE AIR FORCE COURT ERRED BY REFUSING TO
          VACATE ITS RULING IN LIGHT OF THE ACTIONS OF THE
          CHIEF JUDGE REGARDING THE APPOINTMENT OF HIS
          REPLACEMENT AFTER HE HAD RECUSED HIMSELF.

  II.     WHETHER THE AIR FORCE COURT ERRED BY BASING ITS
          SENTENCE DISPARITY ANALYSIS ON APPELLANT’S AND HIS
          CO-ACTOR’S ADJUDGED SENTENCES RATHER THAN THEIR
          APPROVED SENTENCES.

  III. WHETHER THE AIR FORCE COURT ERRED BY DENYING
       APPELLANT’S MOTION TO COMPEL PRODUCTION OF E-MAILS
       SENT BETWEEN THE CHIEF JUDGE AND APPELLATE
       GOVERNMENT COUNSEL ABOUT THIS CASE FOLLOWING THE
       CHIEF JUDGE’S RECUSAL.

  IV.     WHETHER THE APPELLANT’S DUE PROCESS RIGHT TO
          REASONABLY PROMPT APPELLATE REVIEW WAS DENIED BY THE
          DELAY IN THIS APPEAL ARISING FROM THE AIR FORCE
          COURT’S PROCESSING OF THIS APPEAL DURING ITS INITIAL
          REVIEW.

                                    5
United States v. Roach, No. 07-0870/AF


petition for extraordinary relief).    A recusal means the judge

“may not preside over any subsequent proceedings in the case or

perform any other judicial actions with respect to it.”     Richard

E. Flamm, Judicial Disqualification:   Recusal and

Disqualification of Judges § 22.1 (1996) (footnotes omitted).

Once recused, a military judge should not play any procedural or

substantive role with regard to the matter about which he is

recused.   “When a judge is recused, the judge should not take

action to influence the appointment of his or her replacement.”

Walker, 60 M.J. at 358.

     In Walker, the chief judge of the CCA had recused himself

and the clerk of the court asked TJAG to appoint a different

military judge to lead the reviewing panel.   Id. at 355-56.      The

chief judge then created a general policy to determine his

replacement when he was absent or recused.    Id. at 356.   The

substitute military judge retired a few weeks later and the CCA

followed the new court policy to replace him.   Id.   This Court

held that “[t]he chief judge, whose recusal remained in place,

promulgated the policy in the midst of the litigation from which

he was recused, and the impact on that litigation was readily

identifiable.”   Id. at 358.

     The parties in this case do not agree on what exactly Chief

Judge Wise might have said that formed the basis of his recusal.

Nor do they agree whether his recusal was required or


                                 6
United States v. Roach, No. 07-0870/AF


prudential, or where this case sits in relation to Walker.

These disagreements, however, do not impact our ultimate

conclusion, for the record reflects several conclusive facts.

First, in response to the Chief Judge’s remarks, Appellant moved

for the recusal of the original CCA panel following this Court’s

remand.   Second, the Chief Judge recused himself from the case

on August 22, 2008, and he did so without qualification and

without stating a reason.   Third, subsequent to that recusal,

the Chief Judge recommended that TJAG designate Senior Judge

Francis as the chief judge for the Roach case.   TJAG appointed

Senior Judge Francis the same day, and Chief Judge Francis then

formed a special panel to consider Appellant’s case.

     Chief Judge Wise’s recommendation to TJAG to appoint Senior

Judge Francis was problematic for a number of reasons.   First,

and foremost, he took a procedural step after his recusal.

Whether directly controlled by Walker or not, his actions were

inconsistent with the spirit of Walker.   While Chief Judge Wise

was not promulgating a new policy, at a minimum his actions

created the appearance of directly impacting a case from which

he was recused.   Second, Senior Judge Francis not only sat on

the case, he authored it.   Third, concerns about perceptions of

impartiality in the military justice system are heightened where

a court of criminal appeals is asked to review not only the




                                 7
United States v. Roach, No. 07-0870/AF


decision of a trial court, but as in this case, the actions

taken by a panel of the same court.

     Having found an error in recusal, we must next determine

whether the error was structural in nature, and therefore

inherently prejudicial, or in the alternative, determine whether

the error was harmless under Liljeberg v. Health Services

Acquisition Corp., 486 U.S. 847 (1988).   Although the line

between structural and nonstructural errors can be opaque, in

this case, counsel for Appellant conceded at oral argument that

the error was not structural in nature.   We agree.   Among other

things, Appellant had his case reviewed by a three-member CCA

panel composed of military judges appointed by the TJAG

consistent with applicable regulations.   Therefore, in this case

we test for prejudice using the three Liljeberg factors.      “[I]t

is appropriate to consider the risk of injustice to the parties

in the particular case, the risk that the denial of relief will

produce injustice in other cases, and the risk of undermining

the public’s confidence in the judicial process.”     Id. at 864.

     The third Liljeberg factor is determinative in this case.

First, public confidence in the military judicial process is

undermined where judges act in cases from which they are

recused.   This is true, whether the judge’s role is significant

or minimal.   The record supports the CCA’s conclusion that “any

‘influence’ flowing from Chief Judge Wise’s ‘recommendation’ was


                                 8
United States v. Roach, No. 07-0870/AF


at best minimal and resulted in no discernible prejudice to the

appellant.”   Roach III, No. ACM S31143 (f rev) (A.F. Ct. Crim.

App. Apr 24, 2009) (ruling on Appellant’s motion to vacate).

Nonetheless, either a military judge is recused or he is not.     A

military judge who acts inconsistently with a recusal, no matter

how minimally, may leave a wider audience to wonder whether the

military judge lacks the same rigor when applying the law.

     Second, although there is no evidence indicating that the

second panel was actually influenced by Chief Judge Wise or

reached its judgment based on factors other than its best

judgment, confidence in the judicial process is surely

undermined where a recused judge recommends the military judge

who will subsequently review the recused judge’s prior conduct.

As noted above, in this case Senior Judge Francis not only

presided over the panel hearing Appellant’s case, he wrote the

opinion, concluding inter alia that the “chief judge’s

explanation [was] both reasonable and credible” regarding his

public statements.    Roach III, 2009 CCA LEXIS 159, at *32, 2009

WL 1514650, at *10.

     The appearance of impartiality may be especially important

in the military justice context.       From an outsider’s

perspective, it might well appear that at a court-martial and at

the CCA, the critical players are invariably uniformed officers,

usually if not always from the same service, and in many cases


                                   9
United States v. Roach, No. 07-0870/AF

drawn from what are relatively small communities of military

judge advocates.   In this context, it is all the more important

for participants to engage in their assigned duties without

blurring legal and ethical lines; however well intentioned.     See

United States v. Greatting, 66 M.J. 226, 232 (C.A.A.F. 2008).

                   Issue II:   Sentence Disparity

     Appellant next challenges the legal framework the lower

court applied to his sentence disparity claim.      “The Courts of

Criminal Appeals are required to engage in sentence comparison

only ‘in those rare instances in which sentence appropriateness

can be fairly determined only by reference to disparate

sentences adjudged in closely related cases.’”      United States v.

Sothen, 54 M.J. 294, 296 (C.A.A.F. 2001) (quoting United States

v. Ballard, 20 M.J. 282, 283 (C.M.A. 1985)).      Adjudged sentences

are used because there are several intervening and independent

factors between trial and appeal –- including discretionary

grants of clemency and limits from pretrial agreements –- that

might properly create the disparity in what are otherwise

closely related cases.

     In contrast, when the CCA is exercising its power over

sentence appropriateness generally, it may consider both

adjudged and approved sentences.      In turn, this Court “review[s]

the sentence appropriateness decisions of the Courts of Criminal

Appeals for abuse of discretion” and may “order a de novo review


                                 10
United States v. Roach, No. 07-0870/AF

when the lower court has erred as a matter of law.”     United

States v. Hutchison, 59 M.J. 250, 251 (C.A.A.F. 2004); see

United States v. Lacy, 50 M.J.286, 288 (C.A.A.F. 1999).

     However, we need not and do not apply these principles to

Appellant’s case.   The issue of sentence disparity is moot

before this Court in light of our resolution of Issue I.

             Issue III:   Appellate Discovery Request

     Appellant recognizes that his claim in Issue I warranted

some communication between Chief Judge Wise and the Government,

and led to the generation of an affidavit from Chief Judge Wise.

As a result, he next argues that any written communications

between Chief Judge Wise and the Government should be disclosed

to eliminate any appearance of unfairness during appellate

review and to allow Appellant to assess and argue prejudice with

respect to his case.   He requests that this Court unseal the

communications and on remand direct the CCA to consider whether

Appellant was prejudiced by the denial of his discovery request.

In light of our decision to vacate based on Issue I, and our

disposition with respect to Issue IV, this issue is also moot.

The correspondence that occurred between Chief Judge Wise and

Government counsel is not relevant to the next CCA review, which

will be conducted by a new panel, and addresses only the

remaining pending issue of sentence disparity.




                                11
United States v. Roach, No. 07-0870/AF

                    Issue IV:   Appellate Due Process

     Whether an appellant’s due process right to a speedy post-

trial review has been violated is reviewed de novo.     United

States v. Moreno, 63 M.J. 129, 135 (C.A.A.F. 2006).     Under

Moreno, the Court need not consider the factors from Barker v.

Wingo, 407 U.S. 514, 530 (1972), unless there is a “facially

unreasonable delay.”   63 M.J. at 136.   The Court established a

“presumption of unreasonable delay where appellate review is not

completed and a decision is not rendered within eighteen months

of docketing the case before the Court of Criminal Appeals.”

Id. at 142.   The CCA released its first decision (Roach I)

approximately thirteen months after the case was docketed.       On

its face, this does not constitute a threshold showing of

unreasonable delay warranting consideration of the additional

Barker factors.

     However, Appellant argues that the CCA purposefully ignored

binding case law in an attempt to manipulate the law to reach a

desired result.   Appellant contends these legal errors added

nineteen months of additional and unacceptable post-trial delay.

In the context of this argument, it is important to Appellant

not only that Chief Judge Wise commented on his case in public,

but also the manner in which he spoke.   Likewise, Appellant

asserts that the e-mails requested above may bear on this




                                 12
United States v. Roach, No. 07-0870/AF

question, although he cannot say how because he has not seen

them.

        Whether, and how, a showing of “malicious delay” on the

part of an appellate judge might inform the Barker factors, is a

question for another day.    In Roach I, the CCA identified a

tension between two distinct lines of jurisprudence; one based

on Moreno, emphasizing the importance of timely appellate

review, and one based on United States v. Bell, 11 C.M.A. 306

(C.M.A. 1960), and United States v. May, 47 M.J. 478 (C.A.A.F.

1998), emphasizing the importance of an appellant’s opportunity

to be heard.    In Roach II, this Court held that “[t]he error in

this case is that the court below proceeded to decide the case

without taking the steps required under Bell and May.”     66 M.J.

at 419.    Prior to this Court’s decision in Roach II, the tension

between these earlier cases was unresolved.    This is true

regardless of how Chief Judge Wise may or may not have described

the tension in public statements while Roach I was pending

before this Court.    And it is true whether or not the CCA fully

identified and articulated the arguments on either side of the

issue in Roach I.     Based on the foregoing, we conclude that the

opinion in Roach I does not implicate the concerns about

“malicious delay” raised by Appellant.

        In conclusion, the case does not reach the threshold of

elapsed time to initiate review under Barker.


                                  13
United States v. Roach, No. 07-0870/AF

                           CONCLUSION

     The decision of the United States Air Force Court of

Criminal Appeals is vacated and the case is remanded for a new

review under Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2006),

before a new panel.




                               14
