                  UNITED STATES NAVY-MARINE CORPS
                     COURT OF CRIMINAL APPEALS
                          WASHINGTON, D.C.

                                  Before
             J.R. MCFARLANE, K.M. MCDONALD, M.C. HOLIFIELD
                         Appellate Military Judges

                          UNITED STATES OF AMERICA

                                         v.

                            DANIEL W. SANDERS
                      CORPORAL (E-4), U.S. MARINE CORPS

                               NMCCA 201200202
                           SPECIAL COURT-MARTIAL


Sentence Adjudged: 8 March 2012.
Military Judge: LtCol Robert G. Palmer, USMC.
Convening Authority: Commanding Officer, Headquarters and
Service Battalion, Marine Corps Recruit Depot, Parris Island,
SC.
Staff Judge Advocate's Recommendation: Col E.R. Kleis, USMC.
For Appellant: LT Carrie E. Theis, JAGC, USN.
For Appellee: LCDR Keith B. Lofland, JAGC, USN.

                              30 September 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 special court-martial,
convicted the appellant, pursuant to his pleas, of knowingly using
an interactive computer service for carriage in interstate
commerce of obscene, lewd, lascivious, and filthy matter,1 in
violation of Article 134, Uniform Code of Military Justice, 10
1
    A violation of 18 U.S.C. § 1462, charged under Clause 3 of Article 134, UCMJ.
U.S.C. § 934. The military judge sentenced the appellant to
confinement for twelve months, reduction to pay grade E-1, and a
bad-conduct discharge. A pretrial agreement limited punishment to
the jurisdictional maximum of a special court-martial and had no
effect on the sentence adjudged. The convening authority (CA)
approved the sentence as adjudged and, except for confinement in
excess of ten months2 and the punitive discharge, ordered it
executed.

     This case is before us upon remand by the United States 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 assigned one error: that the military judge
was disqualified by his inflexible attitudes about sentencing and
by allowing his perceptions of what Congress and the Commandant of
the Marine Corps expect from Marine Corps courts-martial to enter
into his deliberations. The appellant’s assignment also alleged
unlawful command influence (UCI). In our initial decision, United
States v. Sanders, No. 201200202, 2012 CCA LEXIS 441, unpublished
op. (N.M.Ct.Crim.App. 13 Nov 2012), we affirmed the findings 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).3 The appellant has essentially
reframed his original assignment of error, now claiming that he
was deprived of his constitutional right to an impartial judge.
An additional assignment of error claims the military judge’s
close personal relationship with the CA amounted to apparent UCI.

     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.




2
  As a matter of clemency, the CA suspended all confinement in excess of ten
months for a period of one year, at which time, unless sooner vacated, the
suspended portion will be remitted.
3
    United States v. Sanders, 73 M.J. 54 (C.A.A.F. 2013) (summary disposition).
                                         2
                                    Background

     The first assigned error focuses on post-trial comments made
by the military judge. Approximately 15 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 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.4 He also said that a trial counsel who loses
a child pornography case through incompetence will “go to hell.”5
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.6

     Less than a week after the PME training, the military judge
ruled on a motion to recuse or disqualify himself in an unrelated
case.7 During a hearing on the motion, the military judge
“apparently played some role in the appearance of a senior judge
advocate” who provided “what amounted to a character defense of
the military judge.”8 That senior judge advocate is the CA in this
case.

     The PME comments by the military judge were the subject of a
hearing pursuant to United States v. DuBay, 17 C.M.A. 147 (C.M.A.
1967).9 Based on the context of these statements, this court

4
    Appellant’s Brief of 16 Aug 2012 at Appendices I and II.
5
    Id.
6
    Id.
7
  In United States v. Bremer, 72 M.J. 624, 626 (N.M.Ct.Crim.App. 2013), we
modified and then affirmed the findings, and set aside the sentence with a
rehearing on sentence authorized. Following the rehearing, we affirmed the
approved sentence. United States v. Bremer, 2014 CCA LEXIS 27, unpublished op.
(N.M.Ct.Crim.App. 23 Jan 2014) (summary disposition).
8
    Bremer, 72 M.J. at 627.
9
  Appendix to Kish, 2014 CCA LEXIS 358, at 15-39 (DuBay Hearing Findings of Fact
and Conclusions of Law of 15 July 2013) (hereinafter Dubay ruling).
                                         3
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.” 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.).10 The findings and conclusions from the DuBay Ruling remain
those of this court.

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

                                   Apparent Bias

     We review whether a military judge’s post-trial actions
demonstrate actual or apparent bias de novo.11 “‘An accused has a
constitutional right to an impartial judge.’”12 The Rules for
Courts-Martial provide that a military judge must disqualify
himself if the military judge's impartiality might reasonably be
questioned.13 Specific grounds for disqualification include
personal bias and prejudice concerning a party.14 A military
judge's impartiality is crucial to the conduct of a legal and fair
court-martial.15

     “There is a strong presumption that a judge is impartial, and
a party seeking to demonstrate bias must overcome a high hurdle,

10
     DuBay Ruling at 38.
11
  The CAAF has applied this standard when facing 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).
12
  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)).
13
  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.” Disqualification may be required even if the
evidence does not establish actual bias. United States v. Quintanilla, 56 M.J.
37, 43 (C.A.A.F. 2001).
14
     R.C.M. 902(b)(1).
15
     Quintanilla, 56 M.J. at 43.


                                         4
particularly when the alleged bias involves actions taken in
conjunction with judicial proceedings.”16 “The moving party has
the burden of establishing a reasonable factual basis for
disqualification. More than mere surmise or conjecture is
required.”17

     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.”18 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 reasonably be
questioned.”19 “The appearance standard is designed to enhance
public confidence in the integrity of the judicial system.”20

     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 servicemember
defendants,21 and the appellant having made no showing that the
military judge had an actual personal bias or prejudice concerning
him or his case, we find no actual bias here. Accordingly, we now
look to whether there was apparent bias concerning the appellant’s
case.

     We are convinced a reasonable person fully aware of the
context of the PME statements would not be concerned regarding the
judges impartiality in this case. It would be one thing,
therefore, if the only evidence before us was the military judge’s
PME comments. But it is quite another when these statements are



16
     Id. at 44.
17
  Wilson v. Ouelette, 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)).
18
     Martinez, 70 M.J. at 157 (citation and internal quotation marks omitted).
19
  Id. at 158-59 (citing United States v. Kincheloe, 14 M.J. 40, 50 (C.M.A.
1982)).
20
  Quintanilla, 56 M.J. at 45 (citing Liljeberg v. Health Service Acquisition
Corp., 486 U.S. 847, 860 (1988)).
21
     DuBay Ruling at 38.


                                          5
viewed in conjunction with the sum of several relevant facts.
Specifically:

        (1) The charged conduct involved child pornography.
        Although the appellant was convicted of only one
        specification involving “obscene, lewd, lascivious,
        and filthy matter,” the guilty plea inquiry revealed
        these materials included “child pornography or images
        of actual children engaging in sexually explicit
        conduct.”22 Two images were verified by the National
        Center for Missing and Exploited Children as involving
        known minors.

        (2) The sentence was the maximum possible. The
        military judge essentially sentenced the appellant to
        the maximum sentence he was authorized to award.23 (We
        are in no way saying the punishment was
        inappropriately severe; we merely note that the
        maximum extent of the punishment here is relevant to
        an apparent bias analysis.)

        (3) The PME statements were made approximately three
        months after trial. Although opinions may differ
        whether this is a meaningfully close temporal
        relationship between the court-martial and PME
        training, it is sufficiently close that an objective
        observer could reasonably connect the two events.

        (4) The military judge had a close relationship with
        the CA. The appellant raises this relationship in the
        context of UCI, but we believe it also bears on the
        issue of apparent bias. That their relationship is so
        close that the CA would come to court and testify to
        the military judge’s fitness as a judge and “an
        honorable man”24 is one more block upon which a

22
     Record at 24.
23
  The military judge did not impose a fine or forfeiture.    However, having
discussed automatic forfeitures with the appellant, he was   certainly aware of
the effect his sentence would have on the appellant’s pay,   that is, roughly the
equivalent of adjudged forfeiture of two-thirds pay for 12   months. Record at
38.
24
     Bremer, 72 M.J. at 627.
                                       6
        reasonable person could base his appraisal of the
        judge’s impartiality.

     As we noted in Kish, the military judge’s statements during
the PME lecture “reflect exceptionally poor judgment and invite
questions regarding judicial temperament and professionalism.”25
While an examination of the circumstances surrounding the PME
lecture place the statements properly in context, and none of the
above mentioned facts standing alone would raise the specter of
bias, we find that a reasonable person knowing all the
circumstances of the lecture, when combined with the additional
facts relevant to this case, would question the integrity of the
judicial system.26 Accordingly, we find apparent bias.

                                       Remedy

     Where apparent bias exists, the CAAF has adopted a three-part
       27
test for determining whether a reversal of a conviction is
necessary to vindicate the public’s confidence in the military
justice system:

              (1) What is the risk of injustice to the parties
              in the particular case?

              (2) What is the risk that the denial of relief
              will produce injustice in other cases?

              (3) What is the risk of undermining the public's
              confidence in the judicial process?

     First, the risk of injustice to the parties is high. Judges
are invested with extraordinary discretion in determining an
appropriate sentence. The military judge’s imposition of the most
severe sentence possible in this case is called into question by
the appearance of bias.

     Secondly, while denial of relief in this case will not itself
produce an injustice in other cases, granting relief will have the
salutary effect of reinforcing the demand for judicial

25
     DuBay Ruling at 38.
26
     See Martinez, 70 M.J. at 159.
27
     Quintanilla, 56 M.J. at 80-81 (citing Liljeberg, 486 U.S. at 864).


                                          7
impartiality.

     Thirdly, and arguably most importantly, we turn to the
question of the public's confidence in our judicial process. When
examining the facts of this case in light of the military judge's
public remarks, a reasonable member of the public would conclude
that the judge’s impartiality in this case might reasonably be
questioned. We find that the military judge's conduct warrants a
remedy to vindicate the public's confidence in the military
justice system.

     We need not address the appellant’s claim of UCI. The
appellant pleaded guilty and does not claim that the acceptance of
his pleas was in any way defective. As for his sentence, the
remedy provided in our decretal paragraph addresses any appearance
of bias on the part of the military judge, regardless of the
source.

                            Conclusion

     The findings are affirmed and the sentence is set aside.   A
rehearing on sentence is authorized.

                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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