

   
   
   
   U.S. v. Lynn



UNITED STATES, Appellee
v.
Kerry V. LYNN, Engineman Third Class
U. S. Navy, Appellant
 
No. 99-0560
Crim. App. No. 97-1482
 
United States Court of Appeals for the Armed
Forces
Argued May 3, 2000
Decided September 29, 2000
COX, S.J., delivered the opinion of the
Court, in which CRAWFORD, C.J., and GIERKE and EFFRON, JJ., joined. SULLIVAN,
J., filed a dissenting opinion.

Counsel
For Appellant: Lieutenant Omar R. Lopez,
JAGC, USNR (argued).
For Appellee: Lieutenant Kevin S. Rosenberg,
JAGC, USNR (argued); Colonel Kevin M. Sandkuhler, USMC, Commander
Eugene E. Irvin, JAGC, USN, and Lieutenant James E. Grimes,
JAGC, USNR (on brief).
Military Judge: L. P. Haddock
 
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.


Senior Judge COX delivered the opinion of the
Court.
A general court-martial convened at Kings Bay,
Georgia, convicted appellant, contrary to his pleas, of rape and making
a false official statement, violations of Articles 120 and 107, Uniform
Code of Military Justice, 10 USC §§ 920 and 907. His approved
sentence extends to a dishonorable discharge, confinement for 3 years,
and reduction to E-1.1
The Navy-Marine Corps Court of Criminal Appeals (NMCCA) affirmed. 50 MJ
570 (1999).
The real issue before this Court is whether
it was an abuse of discretion for a judge on the NMCCA to not recuse himself
from the case.2 See
Camacho v. Autoridad De Telefonos De Puerto Rico, 868 F.2d 482 490
(1st Cir. 1989) ("our oversight of a recusal motion's denial
is limited to a search for abuse of discretion"). We hold that it
was not an abuse of discretion for Judge Dorman to participate in this
case.

I
There is no dispute that: (1) prior to becoming
a Judge of the NMCCA, Colonel (Col) C.W. Dorman, USMC, was the Director
of the Appellate Government Division of the Navy-Marine Corps Appellate
Review Activity ("Appellate Government"); (2) at the time appellant's appeal
reached the NMCCA and a copy of the record of trial was provided to Appellate
Government, Col Dorman was still the Director of Appellate Government;
(3) Appellate Government did not oppose, indeed did not respond, to the
first seven motions for enlargement of time by appellant; and (4)
Col Dorman was the Director of Appellate Government while each of those
first seven motions for enlargement of time was filed and processed by
the NMCCA. Had this case been presented to the court below without any
enlargements, it is likely that the case would have been disposed of by
the NMCCA before Judge Dorman's appointment to the court.
There is no dispute that, by the time appellant
made his eighth motion for enlargement of time--after which Appellate
Government first entered an opposition--Col Dorman was gone from Appellate
Government. Indeed, there is no dispute that Col Dorman was, by then, a
Judge of the NMCCA. And there is no dispute that it was Judge Dorman himself
who granted appellant's eighth motion for enlargement of time.3
Thus, the focus of the issue is on Col Dorman's role during the first seven
motions for enlargement of time, and whether his involvement, if any, should
have caused him to be recused from reviewing appellant's case as an appellate
judge.4

II
As Col Dorman's participation only became an
issue in the case long after the court-martial adjourned, there has been
no evidentiary hearing into the underlying facts of his appellate role.
Rather, the information has been provided largely by a process of assertion
and concession in the appellate pleadings and oral argument, and by appellate
counsels' submission of posttrial affidavits and other documentation.
For example, on March 20, 2000, appellant moved
to attach, inter alia, an affidavit, dated June 15, 1998,
made by Col Dorman.5 In
it, Col Dorman stated his arrival ("July 1995") and departure ("27 May
1998") dates at Appellate Government, and he described generally his practices
with respect to the supervision of pleadings arising within his Division.
No reference was made to appellant's case. The Government did not oppose
appellant's motion to attach, and we granted it on April 5, 2000. 53 MJ
242 (2000).
On April 11, 2000, the Government moved to
attach several affidavits of its own. One was a new affidavit from Col
Dorman, dated April 10, 2000, in which he described in much more detail
the timetable of events concerning his selection as an appellate judge,
his absence from Appellate Government for judicial training, and his final
duties and departure from Appellate Government. He related his decision
"to recuse [him]self from participating in any case in which an appellant
had filed a brief raising an assignment of error with the NMCCA on or before
26 May 1998, the day [he] was relieved of duties as the Director of the
Appellate Government Division."
Col Dorman also averred that

[t]he appellant's motion for my recusal was
denied by the Chief Judge because: I had no prior knowledge of the case,
and the appellant's brief and assignments of error was filed with the NMCCA
long after my appointment to the court. Because of those facts, the Chief
Judge saw no need to address the factual errors in the appellant's motion
for my recusal.

Affidavits from the Deputy Director of the Appellate
Government Division and the Supervisory Legal Assistant of the Division
aver that, during the pertinent period, when records of trial were received
in the Division they were initially stored; that the Government's practice
was not to respond to an appellant's first seven motions for enlargement
of time; and that records of trial were not assigned to government counsel
or reviewed in any respect until either an appellant filed an eighth motion
for enlargement of time or a defense brief was filed. If an appellant filed
either an eighth motion for enlargement or a defense brief, the record,
for the first time, would be retrieved from storage and would be sent to
the Deputy Director of the Division. At that time, the Deputy Director
would assign a government counsel to the case.6
On April 18, 2000, appellant filed an opposition
to the Government's April 11 motion to attach. Appellant argued, variously,
that since the Government had not responded to appellant's motion to recuse
Judge Dorman at the NMCCA, it should not be allowed to submit affidavits
now; that there is, in any event, "nothing in the instant affidavits that
presents anything new for this Court to review"; and that this Court should
not be engaging in factfinding. Appellant moved, instead, that we "simply
remand the case for consideration by a new [NMCCA] panel"; in other words,
that we set aside the decision below.
On May 3, 2000, we heard oral argument in the
case. There, appellate defense counsel conceded that Col Dorman took no
action in appellant's case while assigned to Appellate Government, and
that, indeed, no action at all was taken in appellant's case by Appellate
Government until after Col Dorman departed the Division. In addition, appellate
defense counsel did not dispute that it was the Government's policy to
take no action in cases until an eighth motion for enlargement of time
was filed or an initial brief was filed by an appellant.7
As previously indicated, the "facts" of this
appeal are essentially stipulated or unrebutted. See United States
v. Ginn, 47 MJ 236, 241-42 n. 4 (1997). The thrust of appellant's contention
is that Appellate Government's receipt of a copy of his record of trial
while Col Dorman was still Director of the Division, without more, mandated
his recusal as judge, notwithstanding that the record remained in storage
and unreviewed until after his departure from the Division.


III
Title 28 USC § 455 provides, in pertinent
part:
 
(a) Any justice, judge, or magistrate of
the United States shall disqualify himself in any proceeding in which
his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the
following circumstances:
 
* * *

(3) Where he has served in governmental employment
and
in such capacity participated as counsel, adviser or material witness
concerning the proceeding or expressed an opinion concerning the merits
of the particular case in controversy.



(Emphasis added.)
Title 28 USC § 455 applies to judges of
the Courts of Criminal Appeals. United States v. Hamilton, 41 MJ
32, 39 (CMA 1994). Canon 3C of the Code of Judicial Conduct RCM 902(a),
Manual for Courts-Martial, United States (1995 ed.), are virtually
identical. See also United States v. Wright, 52 MJ
136, 140-41 (1999); United States v. Morgan, 47 MJ 27, 29 (1997).
As we noted in United States v. Mitchell, 39 MJ 131, 143 (CMA 1994):

The test is whether a reasonable person who
knew all the facts might question these appellate military judges'
impartiality.

At the same time, judges are cautioned not to
leave cases "unnecessarily." Wright, supra at 141. Recusal
decisions by inferior courts are normally reviewed with an abuse of discretion
standard. Mitchell, supra at 144 n. 7.
In the instant case, Judge Dorman made a specific
decision as to how he would approach the issue of recusal with respect
to the relationship between his service in Appellate Government and his
subsequent appointment as a Judge on the Court of Criminal Appeals. He
decided to draw the following line: he would recuse himself in any case
in which an appellant filed a brief raising an assignment of error with
the Court of Criminal Appeals on or before the date on which he was relieved
of his duties at Appellate Government. In view of the practice at Appellate
Government of not reviewing the record in such a case until such a brief
was filed, or until there was an eighth request for an enlargement of time,
and in view of his unrebutted statement that he had no involvement in the
present case while at Appellate Government, it was not an abuse of discretion
for Judge Dorman to participate in the present case. We are quite confident
that a reasonable person who knew all the facts would not question Judge
Dorman's ability to be impartial in the review of appellant's case.
The cases relied upon by appellant are not
apposite. Thus, in Bradshaw v. McCotter, 785 F.2d 1327 (5th Cir.)
rev'den
banc, 796 F.2d 100 (5th Cir. 1986), one of the judges
on the Texas Court of Criminal Appeals who sat in review of Bradshaw had
been the Texas State Prosecuting Attorney. As such, his office "assisted
local prosecutors throughout Texas on criminal cases. . . [and] provided
expertise and additional manpower to local prosecutors who requested it."
785 F.2d at 1328. Although the judge did not participate in Bradshaw's
case "in any fashion whatsoever," Id. at 1329, his name "appeared
[apparently as a courtesy] on the state's brief on the appeal [in Bradshaw's
case]." 796 F.2d at 100. The Fifth Circuit Court of Appeals concluded that
the judge "should have disqualified himself in all cases in which his name
appeared as a prosecutor." Id. at 101. The Court noted, "The appearance
of [the judge's] name on the prosecuting attorney's brief undermined a
fundamental aspect of our criminal justice system: a judge's neutrality."
785 F.2d at 1329.
The contrasts with the instant case are apparent.
The Appellate Government Division does not exercise prosecutorial discretion;
and its Director is not a chief prosecutor. The Division primarily reacts
and responds to pleadings filed by servicemember-appellants and appears
in support of those pleadings before the respective appellate courts.8
Further, Col Dorman's name appeared on no briefs filed in appellant's case.
Similarly, appellant cites several cases for
the proposition that "a United States Attorney serves as counsel to the
government in all prosecutions brought in his district while he is in office
and that he therefore is prohibited from later presiding over such cases
as a judge." Kendrick v. Carlson, 995 F.2d 1440, 1444 (8th Cir.
1993); see United States v. Di Pasquale, 864 F.2d 271, 278-79
(3rd Cir. 1988); Barry v. United States, 528 F.2d 1094, 1099 (7th
Cir. 1976); United States v. Amerine, 411 F.2d 1130, 1133-34 (6th
Cir. 1969). There are significant differences between the functions and
involvement of a United States Attorney, who supervises the investigation
and prosecution of all criminal cases within his district, and the functions
and involvement of the Director of the Navy-Marine Corps Appellate Government
Division.9
There is no contention before us that Judge
Dorman had any involvement, either personal or supervisory, in this case.
Indeed, there is no contention that Appellate Government took any action
whatever on appellant's case while Judge Dorman remained with the Division.
The contention, rather, is that the facts create an insidious specter amounting
to an impermissible appearance. We disagree. Judge Advocates who have engaged
in an active appellate practice, like their civilian counterparts in and
out of government, typically are well-qualified for service on the appellate
bench. It is not our province, however, to assess whether any particular
person should be appointed to the bench; rather, we must decide whether
the recusal policy adopted by Judge Dorman, as applied to the present case,
was consistent with applicable legal standards.10Given
the decision by his superiors to appoint the Director of Appellate Government
to the appellate bench, we would agree that the point chosen by Judge Dorman
as to where to draw the line on recusal does not amount to an abuse of
discretion. For, as this record reveals, lengthy defense appellate delays
are sufficiently common that the Government has gone to the extent of formulating
a policy of not even opposing the first seven motions for enlargement of
time,11
and indeed it appears that even the succeeding oppositions are quite perfunctory.
In that context, the position taken by Judge Dorman is reasonable because
it limits his participation to those cases in which Appellate Government
had no substantive involvement.
We conclude that the NMCCA did not abuse its
discretion in not recusing Judge Dorman from this instant case. Col Dorman
did not participate in this case, and a reasonable person with knowledge
of the facts would not question his ability to be impartial in this matter.
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
FOOTNOTES:
1 Appellant was also
convicted, contrary to his pleas, of indecent assault, in violation of
Article 134, UCMJ, 10 USC § 934, but the convening authority dismissed
that charge posttrial and reduced the term of confinement from 4 years
to 3.
2
Specifically, the granted issue is: "WHETHER A JUDGE ON THE LOWER COURT
HAD A CONFLICT OF INTEREST THAT REQUIRED RECUSAL FROM REVIEW OF APPELLANT'S
CASE."
3
The NMCCA also granted appellant's ninth and tenth motions for enlargement
of time, over Government objection, before appellant filed his initial
Brief and Assignments of Error at the NMCCA.
4
On September 8, 1998, appellant made a timely motion at the NMCCA to recuse
Col Dorman. The Government apparently did not respond to the motion, and
it was denied without explanation by the Chief Judge of the NMCCA on September
15, 1998.
5
This affidavit was apparently made in anticipation of appellant's motion
to recuse Col Dorman at the NMCCA.
6
In appellant's case, this assignment of counsel occurred "on 8 or 9 September
1998." Pro forma oppositions to appellant's eighth, ninth,
and tenth motions for enlargement of time had been entered on July 2, August
3, and September 1, 1998, respectively, over the signature of the Appellate
Government Deputy Director.
7
In light of these circumstances, we hereby grant the Government's April
11 motion to attach.
On May 5, 2000, several days
after we heard oral argument in this case, appellant moved to attach additional
documents, or again, in the alternative, moved that we simply set aside
the decision below and order that a new panel decide appellant's appeal
below.
The proffered documents include
pleadings from an unrelated case, in which the appellant moved the NMCCA
to compel the Government to produce certain documents related to the record
of trial, including a transcript of a proceeding in revision, a "cleansed
charge sheet" used by the members at trial, and an exhibit used by the
Government as demonstrative evidence. Apparently, during a time Col Dorman
was absent from Appellate Government for judicial training, the Government
responded, through appellate government counsel, and provided the requested
information. Apparently, the appellant in that case did not file a brief
until after Col Dorman departed Appellate Government, and Col Dorman sat
as a member of the NMCCA panel that reviewed the case. Appellant cites
this as a deviation from Col Dorman's policy of recusing himself from all
cases briefed prior to his departure.
In addition, appellant cites
some 15 cases "decided" by Judge Dorman at the NMCCA, wherein appellant
alleges that "pleadings were filed"--"not only [by the] appellants,
but in some cases, also [by] the government"--prior to Col Dorman's
"relief of duties" as Director of Appellate Government. Appellant provides
no further particulars about these cases, or the nature and timing of the
pleadings to which he refers. Under these circumstances, the materials
offered by appellant go to the question of whether Judge Dorman adhered
to the line in other cases, and are insufficient to raise a question of
fact as to whether he failed to draw a line or that he failed to adhere
to it in the present case.
Without prejudice to the appellate
rights of any of these servicemembers, we decline to consider here any
of these unrelated cases, on the bases proffered. Accordingly, we deny
appellant's May 5 motion to attach.
8
The fact that prosecuting attorneys in the field can call Appellate Government
for information on the status of the law or legal advice in no way approximates
the tactical field support function of the Texas State Prosecuting Attorney.
It is not contended here that trial counsel in appellant's case sought
or obtained any legal advice from Appellate Government while prosecuting
appellant's court-martial.
9
The Chief of the Appellate Government Division's role is unlike that of
a U.S. Attorney or the District Attorney for a county. Both the U.S. Attorney
and the District Attorney have primary responsibility for the prosecution
of cases at the trial level. That is not the role the Chief of the Appellate
Government Division plays for the Navy. The fact that other lawyers may
request assistance from the Appellate Government Division in addressing
pending issues does not equate the responsibilities of the Chief of the
Appellate Government Division to the discretionary authority exercised
by a person serving as a U.S. Attorney or a District Attorney.
10
We note that, at or about the same time Judge Dorman was appointed to the
NMCCA, the former Director of the Appellate Defense Division, Captain Carol
J. Cooper, USN, was also appointed to the NMCCA. Apparently at her own
volition, she instituted a procedure whereby both appellants and the Government
were given an opportunity to waive objection to her participation on cases
arising during her tenure as Director, without which waiver she would recuse
herself. This procedure certainly avoids the situation in which Judge Dorman
finds himself, but it does not appear to be a requirement of the NMCCA,
the Navy, the Marine Corps, or any statute, regulation, or ethical standard,
and we express no view as to the merits of the procedure.
11
In so observing, we cast no aspersion of the Appellate Defense Division.
Quite the contrary, the mere fact that the Government, as a matter of policy,
regularly did not contest the first seven motions for enlargement of time
suggests that it was aware of chronic understaffing of the Appellate Defense
Division, a matter obviously out of the control of the Division.


SULLIVAN, Judge (dissenting):
I disagree with the majoritys abuse of discretion
approach to this case. Instead, I would hold that Judge Dorman erred in
failing to recuse himself. In my view, federal law required recusal in
this case, and Judge Dorman had no discretion to formulate his own recusal
policy in derogation of those statutory provisions. See United
States v. Arnpriester, 37 F.3d 466, 467 (9th Cir. 1994).
More particularly, his recusal was required by 28 USC § 455(b)(3)
(prior government employment disqualification) and 28 USC § 455(a)
("impartiality might reasonably be questioned" disqualification).
Turning first to 28 USC § 455(b)(3), I
find that Congress, not Judge Dorman, has drawn the line concerning this
judicial disqualification. It has stated:

§ 455. Disqualification of justice,
judge, or magistrate
 
(a) Any justice, judge or magistrate of the
United States shall disqualify himself in any proceeding in which his impartiality
might reasonable be questioned.
(b) He shall also disqualify himself
in the following circumstances:

* * *
(3) Where he has served in governmental
employment and in such capacity participated as counsel, adviser or
material witness concerning the proceeding or expressed an opinion concerning
the merits of the particular case in controversy;



(Emphasis added.)
It is undisputed in this case that Judge Dorman
in his earlier governmental employment was the Director of the Appellate
Government Division when appellant began his appeal at the Court of Criminal
Appeals. See Article 70, UCMJ, 10 USC § 870; RCM 1202, Manual
for Courts-Martial, United States (1995 ed.). Thus, when appellant filed
his appeal, Judge Dorman was in charge of the government prosecution team
that was responsible for the opposition to appellants appeal.1
It is this role (of the then Colonel Dorman), with its official
responsibilities with regard to this case as the senior officer
and branch chief of the prosecution team, that mandatorily disqualified
him from deciding this case when he was transferred to the Court of Criminal
Appeals. See United States v. Arnpriester, supra (knowledge
and acts of his assistants strictly imputed to U.S. Attorney); United
States v. Siders, 17 MJ 986, 987 (ACMR 1984) (head of appellate government
division disqualified from doing subsequent judge advocate review); cf.
United
States v. Hurt, 9 USCMA 735, 752-54, 27 CMR 3, 20-22 (1958) (board
of review judge assigned as government appellate lawyer after decision
reached but before published not disqualified).
In addition, the general statutory standard
for judicial recusal is whether the judges impartiality "might reasonably
be questioned." 28 USC § 455(a). The Supreme Court has further explained
that "what matters" in making an objective determination of recusal under
§ 455(a) is "not the reality of bias or prejudice but its appearance."
Liteky
v. United States, 510 US 540, 548 (1994).
Accordingly, there was a prima facie
appearance of a conflict of interest in this case. When appellants case
was filed in the Navy-Marine Corps Court of Criminal Appeals, Colonel Dorman
was the de jure leader of the prosecution team;2
and, at the time of the Court of Criminal Appeals resolution of appellants
case, Judge Dorman was the author of the Courts decision. In my
view, a reasonable person would question the impartiality of this appellate
judge.3 See United
States v. Arnpriester, supra.
This case should be remanded to the Court of
Criminal Appeals for a new judicial review under Article 66, UCMJ, 10 USC
§ 866. This judicial remand is a small price to pay to insure all
parties on appeal that they will have their cases heard in a system where
the judges are free of even the appearance of a statutory conflict of interest.
FOOTNOTES:
1 I disagree with
the majoritys view of the nature of the Chief of the Appellate Government
Division position and have attached as support for my view the web page
of the Appellate Government Division, Office of the Judge Advocate General,
United States Navy. See http://www.jag.navy.mil/html/headquarters.htm.
[Appendix]
2Id.
3
In United States v. Mitchell, 39 MJ 131, 144 n.7 (CMA 1994), this
Court applied a "de novo" standard of review, imparting no discretion to
the trial judge.


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