                         UNITED STATES, Appellee

                                         v.

                    Daqric B. MOOREFIELD, Sergeant
                     U.S. Marine Corps, Appellant

                                  No. 07-0503
                        Crim. App. No. 200600162

       United States Court of Appeals for the Armed Forces

                          Argued March 10, 2008

                          Decided April 1, 2008

                                   PER CURIAM

                                     Counsel


For Appellant: Lieutenant Gregory W. Manz, JAGC, USN (argued);
Lieutenant Darrin W. S. MacKinnon, JAGC, USNR (on brief).

For Appellee: Colonel Louis J. Puleo, USMC (argued); Commander
Paul C. LeBlanc, JAGC, USN, and Major Tai D. Le, USMC (on
brief); Major Kevin C. Harris, USMC.


Military Judge:    M. B. Richardson



            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Moorefield, No. 07-0503/MC


    PER CURIAM:

     A general court-martial composed of officers and enlisted

members convicted Appellant, contrary to his pleas, of one

specification of making a false official statement in violation

of Article 107, Uniform Code of Military Justice (UCMJ), 10

U.S.C. § 907 (2000);1 one specification of insubordination toward

a noncommissioned officer, in violation of Article 91, UCMJ, 10

U.S.C. § 891 (2000); one specification of attempting to strike a

military policeman in violation of Article 128, UCMJ, 10 U.S.C.

§ 928 (2000); five specifications of assault in violation of

Article 128, UCMJ; and one specification each of disorderly

conduct, soliciting crime, communicating a threat, and

impersonating a noncommissioned officer, in violation of Article

134, UCMJ, 10 U.S.C. § 934 (2000).      The members sentenced

Appellant to a bad-conduct discharge, confinement for two years,

forfeiture of all pay and allowances, and reduction to the

lowest enlisted grade.   The convening authority approved the

sentence and credited Appellant with 324 days for pre-trial

confinement.   The United States Navy-Marine Corps Court of

Criminal Appeals (CCA) affirmed.       United States v. Moorefield,

No. NMCCA 200600162 (N-M. Ct. Crim. App.      Dec. 19, 2006) (per

curiam) (unpublished).

1
  It is directed that the promulgating order be corrected to
reflect that Appellant pled not guilty to Charge I,
Specification 1 (as reflected in the Record of Trial at 59).

                                   2
United States v. Moorefield, No. 07-0503/MC


                             DISCUSSION

     The staff judge advocate (SJA) in this case, Colonel (Col.)

K, served as the military judge in an earlier, unrelated court-

martial of Appellant.   Appellant argued that Col. K should have

been disqualified because his participation in the second court-

martial violated Rule for Courts-Martial (R.C.M.) 1106, Article

6, UCMJ, 10 U.S.C. § 806 (2000), and 28 U.S.C. § 455 (2000), and

required recusal.

     The CCA rejected this argument.      It recognized that R.C.M.

1106(b) and Article 6, UCMJ, bar a person from participating as

the SJA in the same case that he served as a military judge, but

held that because Appellant had not shown that the two trials in

which Col. K was involved were the same case, R.C.M. 1106(b) and

Article 6, UCMJ, did not apply.   Moorefield, No. NMCCA

200600162, slip. op. at 3.   We agree.

     Appellant’s courts-martial occurred several years apart and

involved different victims and evidence.     And Appellant points

to no specialized knowledge obtained by Col. K in the course of

the first court-martial, or knowledge of disputed evidentiary

facts in the second court-martial on the part of Col. K.2

Moreover, Appellant has not shown that anything Col. K, as SJA,

2
 Thus, even assuming without deciding that 28 U.S.C. § 455
(2000), which pertains to the disqualification of federal
justices, judges, and magistrates as defined in 28 U.S.C. § 451
(2000), extends to an SJA, it did not require Col. K to
disqualify himself.

                                  3
United States v. Moorefield, No. 07-0503/MC


did or did not do in the course of the second court-martial

prejudiced him.   Under the facts of this case, Col. K acted as

SJA and military judge in cases involving Appellant that were

neither the same case for purposes of R.C.M. 1106 or Article 6,

UCMJ, nor the same matter, for purposes of Dep’t of the Navy,

Judge Advocate General Instr. 5803.1B, Professional Conduct of

Attorneys Practicing Under the Supervision of the Judge Advocate

General, Rule 1.12 (Feb. 11, 2000).

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




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