                 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.

                          CHAD J. BATCHELDER
                 STAFF SERGEANT (E-6), U.S. MARINE CORPS

                              NMCCA 201200180
                          GENERAL COURT-MARTIAL


Sentence Adjudged: 16 December 2011.
Military Judge: LtCol Robert Palmer, USMC.
Convening Authority: Commanding General, Marine Corps Air
Station, Beaufort, SC.
Staff Judge Advocate's Recommendation: LtCol V.C. Danyluk,
USMC.
For Appellant: LT Jessica Fickey, JAGC, USN.
For Appellee: Maj Suzanne Dempsey, USMC; LT Ian MacLain,
JAGC, USN.

                              13 November 2014

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                       OPINION OF THE COURT
       ---------------------------------------------------

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 general court-martial,
convicted the appellant, pursuant to his pleas, of one
specification of disobeying a lawful order,1 one specification of
1
    A Military Protective Order.
violating a lawful general regulation,2 one specification of
making a false official statement, one specification of
aggravated assault, one specification of child endangerment, one
specification of adultery, and one novel specification of
disobeying a State restraining order, in violation of Articles
92, 107, 128, and 134, Uniform Code of Military Justice, 10
U.S.C. §§ 892, 907, 928, and 934. The military judge sentenced
the appellant to confinement for 18 months, reduction to pay
grade E-1, and a bad-conduct discharge. The convening authority
(CA) approved the sentence as adjudged. In accordance with a
pretrial agreement, automatic forfeitures were deferred and
waived for the benefit of the appellant’s dependents.

     This case is before us upon remand by the 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 alleged that the military judge failed to elicit
sufficient facts from the appellant, as required by United
States v. Care, 40 C.M.R. 247 (C.M.A. 1969), to support his
guilty plea to violating a lawful general regulation prohibiting
fraternization. The appellant also raised a supplemental
assignment of error in which he claimed that comments by the
military judge to a group of Marine Corps officers attending law
school six months after his plea in this case warranted
sentencing relief. In our initial decision, United States v.
Batchelder, No. 201200180, 2013 CCA LEXIS 116, unpublished op.
(N.M.Ct.Crim.App. 10 Jan 2013) (per curiam), we affirmed the
findings and sentence as approved by the CA.3

     The appellant’s subsequent appeal resulted in the CAAF
setting aside our earlier opinion. United States v. Batchelder,
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 his original supplemental
assignment of error, now claiming that he was deprived of his
constitutional right to an impartial judge.



2
    U.S. Navy Regulations, Art. 1165 (1990) prohibiting fraternization.
3
  We adopt our analysis from our earlier opinion and conclude again that no
substantial basis in law or fact exists to question the appellant’s guilty
plea.
                                        2
     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. Arts. 59(a) and 66(c), UCMJ.

                             Background

     The appellant’s claimed error focuses on post-trial
comments made by the military judge. Approximately six months
after he sentenced the appellant, the military judge presented a
Professional Military Education (PME) lecture to five Marine
student judge advocates on temporary active duty during 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 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. 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 pursuant to United States v. DuBay, 37 C.M.R. 411
(C.M.A. 1967) as directed by our superior court. Based on the
context of these statements, this court 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.”
Kish, 2014 CCA LEXIS 358 at *38. We 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 our
previous findings and conclusions from Kish for purposes of our
review here.

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



                                  3
                                 Discussion

     “‘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). We review whether a military judge’s post-
trial actions demonstrate actual or apparent bias de novo.4

     “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

4
  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. Appellant’s Supplemental
Brief of 31 Jul 2014 at 12-22.

     We similarly conclude here, as we did in Kish, that the
military judge's PME statements do not support a determination
of actual bias against accused services members, Kish 2014 CCA
LEXIS 358 at *38, as we find 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 therefore limit our
review here to whether there was apparent bias concerning the
appellant's case.

     The appellant argues that the proximity in time between his
trial and the military judge’s PME lecture and the severity of
his sentence show an appearance of judicial bias. Appellant’s
Supplemental Brief at 21. We disagree.

     The appellant’s court-martial occurred approximately six
months prior to the PME. This period of time, standing alone,
is insufficient to support a finding of apparent bias absent
some further nexus between this case and the PME, which is
absent here. Additionally, we find the adjudged sentence was
within the range of reasonable and expected sentences for the
appellant’s offenses. It was far less than the nearly 13 years
the appellant would have faced without a pretrial agreement and
significantly less than the five year sentence argued for by the
trial counsel and the two-year cap on confinement in the
appellant’s pretrial agreement.

     Moreover, unlike in Kish, the military judge did nothing at
trial to bring his impartiality into question. He asked
witnesses only a few questions and granted the trial defense
counsel’s request to reopen her case in sentencing after she
mistakenly rested without presenting the appellant’s unsworn
statement. Thus, in this case, unlike in Kish 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. Accordingly, 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




                                5
proceedings in this case, would not question the integrity of
the judicial system.5

                                 Conclusion

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

                                       For the Court



                                       R.H. TROIDL
                                       Clerk of Court




5
  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
benefit of the DuBay hearing in Kish, we do not believe a reasonable man
knowing all the circumstances would question the military judge's
impartiality in this case.
                                      6
