              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.

                       MICHAEL A. ARNOLD
              LANCE CORPORAL (E-3), U.S. MARINE CORPS

                            NMCCA 201200382
                        SPECIAL COURT-MARTIAL

Sentence Adjudged: 23 May 2012.
Military Judge: LtCol Robert G. Palmer, USMC.
Convening Authority: Commanding Officer, MAG-31, 2d MAW,
U.S. Marine Corps Forces Command, Marine Corps Air Station,
Beaufort, S.C.
Staff Judge Advocate's Recommendation: Maj H.J. Brezillac,
USMC.
For Appellant: LT Carrie E. Theis, JAGC, USN.
For Appellee: LT James M. Belforti, JAGC, USN; LT Ann
Dingle, JAGC, USN.

                           23 December 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 larceny,
providing false information to law enforcement, driving with a
suspended driver's license, stealing a license plate,
counterfeiting currency, and wrongfully altering a base pass, in
violation of Articles 121 and 134, Uniform Code of Military
Justice, 10 U.S.C. §§ 921 and 934. The military judge sentenced
the appellant to confinement for 12 months, forfeiture of
$950.00 pay per month for 12 months, reduction to pay grade E-1,
and a bad-conduct discharge. The convening authority (CA)
approved the sentence as adjudged, suspending all confinement in
excess of 30 days pursuant to a pretrial agreement.
      This case is before us on remand by the United States
Court of Appeals for the Armed Forces (CAAF). We begin with a
brief recitation of the case’s procedural history. In his
original appeal, the appellant assigned one error: that the
military judge was disqualified because of his inflexible
attitude about sentencing and by allowing his perceptions of
what the Commandant of the Marine Corps and the Congress expects
from the Marine Corps to enter into his deliberations. In our
initial decision, United States v. Arnold, No. 201200382, 2013
CCA LEXIS 32, unpublished op. (N.M.Ct.Crim.App. 22 Jan 2013)
(per curiam), we affirmed the finding and the sentence as
approved by the CA.
     The appellant's subsequent appeal 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 in light of our decision in United States
v. Kish, No. 201100404, 2014 CCA LEXIS 358, unpublished op.
(N.M.Ct.Crim.App. 17 Jun 2014). The appellant has essentially
reframed his original assignment of error, claiming that he was
deprived of his constitutional right to an impartial judge. An
additional assignment of error claims that the staff judge
advocate’s failure to comment on defense counsel’s allegation of
error entitles the appellant to new post-trial processing.
     After carefully considering the record of trial and the
submissions of the parties, we conclude the facts of this case,
viewed together with post-trial comments and actions of the
military judge, give rise to an appearance of bias. We address
the remedy in our decretal paragraph and that corrective action
moots the second assignment of error.

                           Background

   The appellant’s first claimed error focuses on post-trial
comments made by the military judge. Approximately four 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. 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

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charge and prosecute cases aggressively, stated that Congress
and the Commandant of the Marine Corps wanted more convictions,
and opined that trial counsel should assume the defendant is
guilty. He also stated that, “once convicted, we need to crush
these Marines.” 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). 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.” Appendix to Kish, 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.). Id. The findings and the conclusions from the DuBay
Ruling remain those of this court. (DuBay Hearing Findings of
Fact and Conclusions of Law of 15 July 2013) (hereinafter DuBay
Ruling).

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

     We review whether a military judge’s post-trial actions
demonstrate actual or apparent bias de novo.1 “‘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)). 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).




1
  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).

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     “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.
“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,
601 (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. RULE FOR COURTS-MARTIAL 902,
MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.); 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.”

     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,2 and there is 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
concerning the appellant's case.
     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 157 (citation and internal quotation marks omitted). This
test may be met when there is “[a]ny 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. 40, 50
(C.M.A. 1982)). “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 Service
Acquisition Corp., 486 U.S. 847, 860 (1988)).
     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 less than a month after he
sentenced the appellant, were close enough in time to create an

2
    DuBay Ruling at 38.
                                  4
appearance of bias on the part of the military judge. Second,
the appellant argues that the military judge’s imposition of the
maximum available sentence, despite the trial counsel’s
recommendation of a significantly less severe one, constitutes
apparent bias. We agree.
     During the PME lecture, the military judge advised the
participants: “Don’t hold back. Once convicted, we need to
crush these Marines and get them out.” DuBay Ruling at 26.
While this comment, in and of itself, is not enough to
reasonably suggest an inflexible attitude towards sentencing in
a proceeding that occurred a month earlier, it becomes
significantly more problematic when considered with the other
facts of the case. Here, despite the Government’s request for
“reduction to E-1, 90 days confinement, and a bad-conduct
discharge,” the military judge awarded the maximum sentence
allowed by law at a special court-martial: reduction to E-1, 12
months of confinement, forfeiture of $950.00 pay per month for
12 months, and a bad-conduct discharge. Record at 89, 93.
Moreover, the adjudged sentence appears all the more harsh in
light of the CA’s willingness, as part of a pretrial agreement,
to suspend all confinement in excess of 30 days. Given these
facts, we find that an informed member of the public might
reasonably question the military judge’s impartiality and the
integrity of our judicial system. Martinez, 70 M.J. at 158-59.
Accordingly, we find apparent bias.

                             Remedy

     Where apparent bias exists, the CAAF has adopted a three-
part test for determining whether a reversal of a conviction is
necessary to vindicate the public’s confidence in the military
justice system: (1) the risk of injustice to the parties; (2)
the risk of injustice in other cases; and, (3) the risk of
undermining the public's confidence in the judicial process.
Quintanilla, 56 M.J. at 80-81 (citing Liljeberg, 486 U.S. 864).
In this case, we find that risk of undermining the public's
confidence in the judicial process sufficient to warrant relief.

                           Conclusion

     The findings are affirmed and the sentence is set aside.
The record of trial is returned to the judge Advocate General
for remand to an appropriate CA with a rehearing on sentence
authorized. Thereafter the record will be returned to the Court
for completion of appellate review. Art. 60, UCMJ; Boudreaux v.



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U.S. Navy-Marine Corps Court of Military Review, 28 M.J. 181
(C.M.A. 1989).

                                For the Court




                                R.H. TROIDL
                                Clerk of Court




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