                       UNITED STATES, Appellee

                                    v.

                   Inez T. MARTINEZ Jr., Sergeant
                        U.S. Army, Appellant

                              No. 11-0167

                       Crim. App. No. 20080699

       United States Court of Appeals for the Armed Forces

                          Argued May 24, 2011

                        Decided June 24, 2011

ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and BAKER and STUCKY, JJ., joined. RYAN, J.,
filed a separate opinion concurring in the result.

                                 Counsel


For Appellant: Captain John L. Schriver (argued); Colonel Mark
Tellitocci, Colonel Imogene M. Jamison, Lieutenant Colonel Peter
Kageleiry Jr, Lieutenant Colonel Jonathan Potter, and Captain
Brent A. Goodwin (on brief).

For Appellee: Captain Stephen E. Latino (argued); Colonel
Michael E. Mulligan, Major Amber J. Williams, and Major Adam S.
Kazin (on brief).

Military Judge:   Debra L. Boudreau and Thomas P. Molloy


       This opinion is subject to revision before final publication.
United States v. Martinez, No. 11-0167/AR

     Judge ERDMANN delivered the opinion of the court.

     Sergeant Inez T. Martinez entered guilty pleas before a

military judge sitting as a special court-martial to absence

without leave in violation of Article 86, UCMJ, 10 U.S.C. § 886,

and to being drunk on station in violation of Article 134, UCMJ,

10 U.S.C. § 934 (as a lesser included offense of drunk on duty,

Article 112, UCMJ, 10 U.S.C. § 912).   The military judge found

Martinez guilty in accordance with his pleas and sentenced him

to reduction to E-1, confinement for six months, and a bad-

conduct discharge.   This case presents a unique issue concerning

the intervention of a supervising judge, who had been the

initial detailed judge of record, into Martinez’s trial.    We

granted review of the following issue:

     Whether a reasonable person would question the trial
     judge’s impartiality when a senior military judge, who
     appeared to have assisted the Government during trial,
     entered the trial judge’s chambers during recesses and
     deliberations, in violation of Appellant’s right to
     due process.1

     We conclude that while the conduct of the supervising judge

was improper, it did not materially prejudice Martinez’s

substantial rights, nor is he entitled to relief under the

criteria of Liljeberg v. Health Services Acquisition Corp., 486

U.S. 847 (1988).   We therefore affirm the United States Army

Court of Criminal Appeals.


1
  United States v. Martinez, 69 M.J. 490 (C.A.A.F. 2011) (order
granting review).

                                 2
United States v. Martinez, No. 11-0167/AR

                             The Trial

     The military judge at the time of trial was Judge Molloy, a

reservist.   The issue before this court arose from the conduct

of Judge Molloy’s supervising judge, Judge Boudreau, during

Martinez’s trial.   Judge Boudreau had initially been detailed as

the military judge in this case and had presided over Martinez’s

arraignment.   In addition to being Judge Molloy’s supervising

judge, she was also his rater.   During the providence inquiry,

Judge Boudreau sat behind the trial counsel in the spectator

section of the courtroom to observe Judge Molloy, as this was

his first court-martial as a military judge.

     The record reflects that on at least two separate occasions

during the proceedings, Judge Boudreau privately communicated

with the trial counsel either orally or in writing.2    On one

occasion Judge Boudreau was observed passing a note to the trial

counsel, apparently informing him of a perceived deficiency in

the colloquy between Judge Molloy and Martinez.   On another

occasion, Judge Boudreau asked the trial counsel to request a

recess, which he did.   When Judge Molloy retired to his chambers

for the recess, he was followed by Judge Boudreau.     Judge

Boudreau was also observed entering the chambers when the court


2
  While there are some discrepancies between the defense
counsel’s allegations as to Judge Boudreau’s conduct and the
post-trial affidavits of Judge Boudreau and the trial counsel,
there is no dispute that some ex parte communication occurred
during the trial.

                                 3
United States v. Martinez, No. 11-0167/AR

was closed for deliberations.3    There was no explanation on the

record as to Judge Boudreau’s supervisory status or the reason

for her presence in the courtroom.     Although Martinez’s defense

counsel observed Judge Boudreau’s conduct during the trial, he

did not object.    There is no evidence in the record that anyone

informed Judge Molloy of Judge Boudreau’s communications with

the trial counsel during the trial.4

            Clemency Matters and Convening Authority Action

        After trial, the staff judge advocate prepared his written

advice to the convening authority as required by Article 60,

UCMJ, 10 U.S.C. § 860, and Rule for Courts-Martial (R.C.M.)

1106.    He recommended that the convening authority approve a

finding of incapacitation for duty through the prior wrongful

indulgence of alcohol, a violation of Article 134, UCMJ, rather

than the finding of guilty to the drunk on station offense.      In

his response, Martinez’s defense counsel did not address the

staff judge advocate’s recommendation concerning the approval of



3
  Judge Boudreau explained in her post-trial affidavit that her
office served a dual purpose as the judge’s chambers.
4
   The lower court found that the evidence supports that during
the trial Judge Molloy somehow became aware of Judge Boudreau’s
communication with the trial counsel concerning a need for a
recess. Judge Molloy’s post-trial affidavit does state that “at
least once we took a recess because COL Boudreau needed to meet
with me.” This is the only indication in the record that Judge
Molloy was aware that Judge Boudreau may have asked the trial
counsel to request a recess. However, there is no evidence in
the record as to when or by whom Judge Molloy was provided that
information.

                                   4
United States v. Martinez, No. 11-0167/AR

the incapacitation for duty charge.5      He did, however, allege

that the “unusual contact” between Judge Boudreau and trial

counsel during the trial had created an appearance of

partiality.   Martinez’s defense counsel noted that he had not

objected to the conduct at trial, which he acknowledged was an

error on his part.   As a remedy he requested that the convening

authority approve only 164 days of confinement, reduction to

Private E-1, and a bad-conduct discharge.      In making this

request, the defense counsel noted that “the defense believes

that granting SGT Martinez’s modest request for clemency [would]

resolve this issue and remove it from further appellate

scrutiny.”

     Before completing his addendum to his original

recommendation to the convening authority, the staff judge

advocate obtained an affidavit from the trial counsel.      The

trial counsel acknowledged that Judge Boudreau had communicated

with him twice during the trial.       Following his review of the

affidavit, the staff judge advocate advised the convening

authority that although he thought that Judge Boudreau and Judge

Molloy had acted impartially, he recommended that the convening

authority approve the requested clemency “to remedy any

appearance of partiality.”   The convening authority took action


5
  The clemency matters inaccurately refer to Sergeant Martinez
having been found guilty of “wrongful overindulgence of liquor”
in violation of Article 134, UCMJ.

                                   5
United States v. Martinez, No. 11-0167/AR

consistent with the staff judge advocate’s advice, including the

approval of the incapacitation for duty through prior wrongful

indulgence of alcohol charge, and granted the clemency relief

requested by Martinez.

         Decision by the Army Court of Criminal Appeals

     Before the Court of Criminal Appeals, Martinez argued that

Judge Molloy should have recused himself under the provisions of

R.C.M. 902(a).   He argued that a reasonable person would

question Judge Molloy’s impartiality as it appeared that Judge

Boudreau had been assisting the prosecution during the trial and

had then accompanied Judge Molloy into his chambers during the

recess and deliberations.   United States v. Martinez, No. ARMY

20080699, slip op. at 9 (A. Ct. Crim. App. Oct. 7, 2010).6

     The lower court assumed without deciding that Judge Molloy

committed plain error when he did not disqualify himself or

obtain a waiver, and then analyzed whether his failure to do so

required reversal under the standards set forth in Liljeberg.

After conducting an analysis consistent with Liljeberg the Court

of Criminal Appeals determined that reversal was not required.

However, the court went on to state that:



6
  Although not an issue before this court, the Court of Criminal
Appeals also determined that the offense of incapacitation for
duty through the prior wrongful indulgence of alcohol was not a
lesser included offence of drunk on station. Accordingly, the
lower court set aside and dismissed that finding, reassessed the
sentence, and affirmed only 104 days of the confinement.

                                 6
United States v. Martinez, No. 11-0167/AR

          Notwithstanding our conclusions regarding the
     merits of appellant’s allegation, we nonetheless find
     this case troublesome. The circumstances which gave
     rise to appellant’s challenge (i.e., communication
     between the supervisory judge and trial counsel) could
     easily have been avoided. Although we recognize and
     appreciate the role of supervisory judges in
     protecting the interests of an accused while providing
     oversight of new military judges, the issues that
     arose in appellant’s case could have been handled
     differently to avoid the direct communication between
     the supervisory judge and trial counsel. Although not
     all ex parte communications between judges and counsel
     are impermissible, in general most are. As a result,
     regardless of motive, we caution members of the
     judiciary and counsel alike to avoid ex parte
     communications that might create demonstrations of
     bias (R.C.M. 902(b)) or a perception of bias (R.C.M.
     902(a)), regardless of motive. This ensures strict
     compliance with the rules while maintaining and
     promoting confidence in our judiciary and justice
     system. In addition, once irregular contact between
     the supervisory judge and trial counsel occurred there
     should have been timely and full disclosure on the
     record and the defense counsel allowed to inquire, as
     appropriate, whether any basis for disqualification
     existed. Only with a timely and full disclosure could
     the defense counsel have made a decision regarding
     waiver under R.C.M. 902(e). Finally, once the defense
     counsel observed conduct he believed may give rise to
     an issue under R.C.M. 902(a), he should have timely
     raised the issue. See e.g., United States v. Burton,
     52 M.J. 223, 226 (C.A.A.F. 2000) (noting failure of
     the defense to challenge the impartiality of a
     military judge may permit an inference that the
     defense believes the military judge remained
     impartial).

          The appearance standard in R.C.M. 902(a) is
     intended to promote public confidence in the integrity
     of the judicial system. Moreover, as our superior
     court noted in [United States v. ]Quintanilla, “[t]he
     rule also serves to reassure the parties as to the
     fairness of the proceedings, because the line between
     bias in appearance and in reality may be so thin as to
     be indiscernible.” [56 M.J. 37, 45 (C.A.A.F. 2001)]
     (citations omitted). As a result, we caution judges



                                7
United States v. Martinez, No. 11-0167/AR

     and counsel alike to exercise the diligence necessary
     to preserve and promote that public confidence.

Martinez, No. ARMY 20080699, slip op. at 14-15 (citations

omitted).

                             Discussion

     When an appellant, as in this case, does not raise the

issue of disqualification until appeal, we examine the claim

under the plain error standard of review.    United States v.

Jones, 55 M.J. 317, 320 (C.A.A.F. 2001).    Plain error occurs

when (1) there is error, (2) the error is plain or obvious, and

(3) the error results in material prejudice.    United States v.

Maynard, 66 M.J. 242, 244 (C.A.A.F. 2008).

     “An accused has a constitutional right to an impartial

judge.”    United States v. Butcher, 56 M.J. 87, 90 (C.A.A.F.

2001) (quoting United States v. Wright, 52 M.J. 136, 140

(C.A.A.F. 1999)).    R.C.M. 902 recognizes this right and

generally provides two bases for disqualification of a military

judge.    R.C.M. 902(b) provides specific circumstances requiring

disqualification and is not at issue in this case.    R.C.M.

902(a) provides for a general rule of disqualification for

certain appearances of partiality.    See United States v.

Quintanilla, 56 M.J. 37, 45 (C.A.A.F. 2001).    R.C.M. 902(a)

provides:

         Except as provided in subsection (e) [authorizes
         waiver of any disqualification under this subsection]
         of this rule, a military judge shall disqualify


                                  8
United States v. Martinez, No. 11-0167/AR

      himself or herself in any proceeding in which that
      military judge’s impartiality might reasonably be
      questioned.

     “[W]hen a military judge’s impartiality is challenged on

appeal, the test 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.   United States v. Burton, 52 M.J. 223, 226 (C.A.A.F.

2000) (quotation marks omitted).       The appearance of impartiality

is reviewed on appeal objectively and is tested under the

standard set forth in United States v. Kincheloe, i.e., “[a]ny

conduct that would lead a reasonable man knowing all the

circumstances to the conclusion that the judge’s impartiality

might reasonably be questioned is a basis for the judge’s

disqualification.”   14 M.J. 40, 50 (C.M.A. 1982) (quotation

marks omitted); see also Wright, 52 M.J. at 141; Quintanilla, 56

M.J. at 78.   Because not every judicial disqualification

requires reversal, we have also adopted the standards announced

by the Supreme Court in Liljeberg to determine whether a

military judge’s conduct warrants that remedy to vindicate

public confidence in the military justice system.      United States

v. Butcher, 56 M.J. 87, 92 (C.A.A.F. 2001).

The Errors

     The record of trial demonstrates that Judge Boudreau

presided over Martinez’s arraignment and subsequently detailed



                                   9
United States v. Martinez, No. 11-0167/AR

Judge Molloy as judge for Martinez’s trial.   As noted, she was

also Judge Molloy’s rater and supervisory judge.   Although Judge

Boudreau did not preside over Martinez’s trial, she continued to

have judicial responsibilities pursuant to R.C.M. 1104(a)(2) to

authenticate the portion of the record of the proceedings over

which she presided.   In addition, she continued to have

administrative responsibility for the circuit judiciary in her

capacity as Chief Circuit Judge for the circuit in which the

court-martial was conducted and as Judge Molloy’s supervisor.7

These ongoing responsibilities required that Judge Boudreau

ensure that her conduct did not provide a basis to question

either her or Judge Molloy’s impartiality during Martinez’s

court-martial.

     Rule 1.2 of the American Bar Association Model Code of

Judicial Conduct (Model Code) mirrored by the Code of Judicial

Conduct for Army Trial and Appellate Judges (Army Code) provides

that “A judge shall act at all times in a manner that promotes

public confidence in the independence, integrity, and

impartiality of the judiciary, and shall avoid impropriety or

the appearance of impropriety.”    Paramount among Judge

Boudreau’s continuing ethical responsibilities, consistent with


7
  See generally Dep’t of the Army, Reg. 27-10, Legal Services,
Military Justice ch. 8 (Nov. 16, 2005) (describing generally the
Army Trial Judiciary-Military Judge Program and the supervisory
responsibilities for Chief Circuit Judges).



                                  10
United States v. Martinez, No. 11-0167/AR

the Model Code and pursuant to the Army Code, was to ensure

against improper ex parte communications and the appearance of

partiality.    Specifically, Rule 2.9 provides a general

prohibition against initiating, permitting, or considering ex

parte communications involving substantive matters, except in

very limited circumstances.    Judge Boudreau’s communications

with the trial counsel concerning the legal sufficiency of the

providence inquiry and/or the legal sufficiency of the inquiry

into the pretrial agreement involved substantive matters and it

was plain and obvious error for her to initiate those ex parte

communications with trial counsel during the trial.    Compounding

this error, Judge Boudreau entered the judge’s chambers during a

recess she initiated as well as during the deliberations, and

failed to inform Judge Molloy that she had been communicating ex

parte with the prosecution.8    See supra note 4 and accompanying

text.    We therefore share the concerns expressed by the Court of

Criminal Appeals cited earlier in this opinion.

        As noted, when a military judge’s impartiality is

challenged on appeal under R.C.M. 902(a), “the test 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.”     Burton, 52 M.J. at 226 (quotation

8
  In this analysis it is not determinative whether the judge
actually knew of the facts creating the appearance of partiality



                                  11
United States v. Martinez, No. 11-0167/AR

marks omitted).   We consider this risk by applying an objective

standard, i.e., “any conduct that would lead a reasonable man

knowing all the circumstances to the conclusion that the judge’s

impartiality might reasonably be questioned.”    Kincheloe, 14

M.J. at 50.   A reasonable person knowing all the circumstances

would have observed Judge Boudreau privately conferring with the

trial counsel and then accompanying the presiding judge into his

chambers during recess and deliberations.     Judge Boudreau’s

course of conduct under the circumstances created an appearance

that neither she nor Judge Molloy was impartial

Prejudice

     In a plain error context we look to see if the error

materially prejudiced the substantial rights of the appellant9

and whether, under Liljeberg, reversal is warranted.     We conduct

both inquiries even if we conclude that there is no Article

59(a) prejudice as it is possible that an appellant may not have

suffered any material prejudice to a substantial right, but that

reversal would still be warranted under Liljeberg.

     We initially consider whether the error materially

prejudiced Martinez’s substantial rights.10    We first note that

the record does not support, and Martinez has not claimed, that

either Judge Boudreau or Judge Molloy was actually biased.


as long as the public might reasonably believe that he or she
knew. Liljeberg, 486 U.S. at 859-60.
9
  Article 59(a), UCMJ, 10 U.S.C. § 859(a).


                                12
United States v. Martinez, No. 11-0167/AR

Therefore, we look to see if the appearance created by Judge

Boudreau’s conduct materially prejudiced Martinez.    We find that

it did not.

       The staff judge advocate’s initial post-trial advice to the

convening authority recommended that the sentence be approved as

adjudged.    Martinez then submitted his clemency matters in which

he noted Judge Boudreau’s “highly unusual” actions and, as a

remedy, asked the convening authority to approve only 164 days

of the adjudged confinement, reduction to Private E-1, and a

bad-conduct discharge.    In doing so, Martinez asserted that

granting the clemency request would resolve that issue and

remove it from further appellate scrutiny.    This certainly

implied that if the clemency request was approved, it would

rectify any prejudice suffered by him.    The convening authority

approved a sentence consistent with Martinez’s request.

Accordingly, we hold that under the circumstances of this case

Martinez’s substantial rights were not materially prejudiced.

       We now apply the three-part test identified by the Supreme

Court in Liljeberg to determine if reversal is otherwise

warranted under the circumstances to vindicate the public’s

confidence in the military justice system.    In Liljeberg, the

Supreme Court recognized that the purpose of 28 U.S.C. § 455(a),

the civilian counterpart of R.C.M. 902(a), is “to promote public


10
     United States v. Powell, 49 M.J. 460, 463-465 (C.A.A.F. 1998).

                                  13
United States v. Martinez, No. 11-0167/AR

confidence in the integrity of the judicial process.”

Liljeberg, 486 U.S. at 860.     In furtherance of that purpose, the

Supreme Court held that in determining whether a judgment should

be vacated “it is appropriate to consider the risk of injustice

to the parties in the particular case, the risk that the denial

of relief will produce injustice in other cases, and the risk of

undermining the public’s confidence in the judicial process.”

Id. at 864, see also United States v. McIlwain, 66 M.J. 312, 315

(C.A.A.F. 2008); Butcher, 56 M.J. at 92-93; Quintanilla, 56 M.J.

at 80-81.

     The first two parts of the Liljeberg test are not

implicated under the facts of this case.    As to the first part,

the record does not support nor has Martinez identified any

specific injustice that he personally suffered under the

circumstances.   Moreover, we also note that the confinement

adjudged by Judge Molloy was one month less that the maximum

agreed to by Martinez in his pretrial agreement.    As to the

second part of the test, we conclude that this case is analogous

to United States v. Butcher where we stated that “[i]t is not

necessary to reverse the results of the present trial in order

to ensure that military judges exercise the appropriate degree

of discretion in the future.”    Butcher, 56 M.J. at 93.

     The third part of the Liljeberg test, however, requires

further discussion.   Here we consider whether denying a remedy



                                  14
United States v. Martinez, No. 11-0167/AR

to Martinez under the circumstances of this case will risk

undermining the public’s confidence in the military justice

system.   We consider this risk by again applying an objective

standard similar to the standard applied in the initial R.C.M.

902(a) analysis.   This analysis, however, differs from the

initial R.C.M. 902(a) inquiry in which appellate courts

determine whether the military judge should have recused himself

or herself.   In the remedy analysis we do not limit our review

to facts relevant to recusal, but rather review the entire

proceedings, to include any post-trial proceeding, the convening

authority action, the action of the Court of Criminal Appeals,

or other facts relevant to the Liljeberg test.

     This remedy analysis involves the public confidence in the

military justice system in the context of how that system

responds once it has been determined that a military judge was

disqualified under R.C.M. 902(a) and should have been recused.

That analysis must necessarily include a review of all post-

trial actions to evaluate how the public would perceive that

response.   For example, if further proceedings provided an

explanation for a situation that occurred at trial, that may be

sufficient to minimize the risk that the conduct would undermine

the public’s confidence in the military justice system.   If a

remedy is granted after further proceedings, that too would

impact the risk of undermining the public’s confidence.



                                15
United States v. Martinez, No. 11-0167/AR

     On the other hand, if the appearance is created and is not

explained at trial, or if no remedy is granted, or if there was

a remedy that appears inadequate from the perspective of a

reasonable person, those facts would increase the risk that the

conduct (creating the appearance) would undermine the public’s

confidence in the military justice system.      Here, viewing the

entire proceedings, including the trial, the clemency request,

the relief provided by the convening authority, and the

appellate proceedings before the lower court and before this

court, we are convinced that the public’s confidence in the

military justice system would not be undermined.      To the

contrary, the proceedings in this case recognized the error and

fashioned an appropriate remedy.       Under these circumstances we

believe that the public’s confidence in the military justice

system would not be undermined.

                            Decision

     The decision of the United States Army Court of Criminal

Appeals is affirmed.




                                  16
United States v. Martinez, No. 11-0167/AR


     RYAN, Judge (concurring in the result):

     While I agree with the majority that Judge Boudreau

should not have communicated with the trial counsel -- even

if it was only to ensure that the providence inquiry in a

guilty plea case with a pretrial agreement was done

correctly -- I write separately because it is unclear to me

why Judge Boudreau’s ethical violations dictate the recusal

analysis in this case.   Judge Boudreau was not the trial

judge; Judge Molloy was.   And it was Judge Molloy, the

trial judge, who conducted the providence inquiry, accepted

Appellant’s guilty plea, and sentenced him -- the matters

which any “reasonable person” aware of all the facts would

be concerned with.   See United States v. Martinez, __ M.J.

__ (12) (C.A.A.F. 2011).

     The issue we granted concerns “[w]hether a reasonable

person would question the trial judge’s impartiality” based

on the actions of the supervisory judge in this case.

United States v. Martinez, 69 M.J. 490 (C.A.A.F. 2011)

(order granting review).   Therefore, in my view, the

recusal analysis should focus on whether a reasonable

person would question the impartiality of the trial

judge, so that disqualification of the trial judge was

necessary -- not whether the supervising or observing judge

acted inappropriately.   And, as the majority acknowledges,
United States v. Martinez, No. 11-0167/AR


“[t]here is no evidence in the record that anyone informed

Judge Molloy of Judge Boudreau’s communications with the

trial counsel during the trial.”   Martinez, __ M.J. at __

(4).   Bootstrapping Judge Boudreau’s questionable actions

into a generalized recusal analysis based on her

supervisory role and duty to authenticate the arraignment

portion of the record under Rule for Courts-Martial

(R.C.M.) 1104(a)(2) seems a tenuous basis for finding that

the “court-martial’s legality, fairness, and impartiality

were put into doubt.”   Martinez, __ M.J. at __ (9) (quoting

United States v. Burton, 52 M.J. 223, 226 (C.A.A.F. 2000)).

I respectfully concur in the result.




                              2
