              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.

                     RICHARD T. PEARCE
        CHIEF WARRANT OFFICER 3 (W-3), U.S. MARINE CORPS

                           NMCCA 201100110
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 25 March 2011.
Military Judge: LtCol Robert Palmer, USMC.
Convening Authority: Commanding General, Marine Corps
Installations East, Camp Lejeune, NC.
Staff Judge Advocate's Recommendation: LtCol J.M. Henry,
USMC.
For Appellant: Capt David Peters, USMC.
For Appellee: LT Amy Freyermuth, JAGC, USN; Capt Cory
Carver, USMC.

                           12 February 2015

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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.

MCFARLANE, Senior Judge:

     The appellant entered mixed pleas at a trial by general
court-martial with officer members. Pursuant to his pleas, the
military judge found the appellant guilty of one specification
of failure to go, one specification of violating a lawful
general order, one specification of conduct unbecoming an
officer and a gentleman, two specifications of fraternization,
one specification of solicitation to disobey a lawful general
order, two specifications of breaking restriction, and one
specification of solicitation to alter an official document in
violation of Articles 86, 92, 133, and 134, Uniform Code of
Military Justice, 10 U.S.C. §§ 886, 892, 933, and 934. The
members then convicted the appellant, contrary to his pleas, of
one specification of attempting to have sexual intercourse with
a woman not his wife, one specification of violating a lawful
general order, two specifications of sodomy, one specification
of adultery, and two specifications of solicitation to commit an
offense, in violation of Articles 80, 92, 125, and 134, UCMJ, 10
U.S.C. §§ 880, 892, 925, and 934. The members sentenced the
appellant to confinement for six months, forfeiture of all pay
and allowances, and a dismissal. The convening authority (CA)
approved the adjudged sentence.

      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 raised eight assignments of
error:
     (1) The Marcum factors are functionally equivalent to
     elements of Article 125, UCMJ, such that they must be
     pleaded, instructed upon, and proven beyond a reasonable
     doubt;

     (2) The military judge abused his discretion and tainted
     the members panel by ruling that the adultery exception
     under MILITARY RULE OF EVIDENCE 504(c)(2)(A), MANUAL FOR COURTS-
     MARTIAL, UNITED STATES (2008 ed.) allowed him to compel the
     appellant's spouse to testify adversely and thereafter not
     limiting her testimony to the alleged adultery;

     (3) Specifications 1, 5, and 6 of Charge VI, adultery and
     solicitation, fail to state offenses because they do not
     allege the terminal element;

     (4) The specification under Charge I, attempted adultery,
     fails to state an offense;

     (5) The sole specification under Charge II, unauthorized

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     absence, fails to state an offense because the date alleged
     does not include the year;

     (6) Specifications 2, 3, and 7 under Charge VI,
     fraternization and solicitation, the specification under
     Additional Charge II, breaking restriction, and
     Specifications 1 and 2 under Additional Charge III,
     breaking restriction and solicitation, fail to state
     offenses because they do not allege the terminal element;

     (7) The guilty findings for Specifications 1, 5, and 6 of
     Charge VI are fatally ambiguous;

     (8) The military judge's extra-judicial comments made after
     the court-martial create the appearance that the military
     judge abandoned his impartiality and deprived the appellant
     of a fair and impartial court-martial.

In our initial decision, United States v. Pearce, No. 201100110,
2012 CCA LEXIS 449, unpublished op. (N.M.Ct.Crim.App. 28 Nov
2012), we affirmed the findings and 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 United States v. Castellano,
72 M.J. 217 (C.A.A.F. 2013), and United States v. Kish, 72 M.J.
158 (C.A.A.F. 2013) (summary disposition). United States v.
Pearce, 73 M.J. 54 (C.A.A.F. 2014) (summary disposition). On
remand the appellant has essentially reframed his first and last
original assignments of error, claiming that; 1) he was deprived
of his constitutional right to an impartial judge, 2) that
Marcum factors must be pleaded, and; 3) that the military judge
erred by refusing to instruct the panel on the Marcum factors.

     After carefully considering the record of trial and the
submissions of the parties, we find merit in the appellant’s
assertion that the military judge erred by failing to instruct
the panel on the Marcum factors. After taking corrective action
in our decretal paragraph and reassessing the sentence, we
conclude that the remaining findings and the reassessed sentence

                                3
are correct in law and fact and that no error materially
prejudicial to the substantial rights of the appellant remains.
Arts. 59(a) and 66(c), UCMJ. 1

                                 Background

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

     In Kish, 72 M.J. at 217, the CAAF ordered that these
comments by the military judge be the subject of a hearing
pursuant to United States v. DuBay, 37 C.M.R. 411 (C.M.A. 1967).
That hearing was completed and this court included the findings
of fact and conclusions of law from that hearing in an Appendix
to its decision in Kish, 2014 CCA LEXIS 358 (hereinafter DuBay
Ruling). 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.” Kish, 2014 CCA LEXIS at *38. This court further

1
   With respect to original assignments of error (AOE) 2-7, we adopt and
incorporate herein those portions of our earlier decision addressing those
AOEs and similarly decline to grant relief. United States v. Clifton, 35 M.J.
79 (C.M.A. 1992). With respect to the three AOEs submitted on remand, we
find the first assigned error to be without merit and that our resolution of
the third assigned error makes the second moot.


                                      4
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.

     Additional facts necessary to resolve the assignments of
error are incorporated below.

                  Disqualification of Military Judge

     We review whether a military judge’s post-trial actions
demonstrate actual or apparent bias de novo. 2 “‘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).

     “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, 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. 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


2
  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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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 “[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. 49, 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
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, and since, contrary to the
appellant’s argument, 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.

     The appellant makes two arguments in support of a finding
of bias. 3 First, the appellant argues that during an Article
39(a), UCMJ, session concerning a defense motion regarding
unlawful command influence, the military judge made
“questionable comments about the defense bar and service as a
defense counsel.” Appellant’s Brief of 1 Aug 2014 at 11. The
appellant also argues that during a later Article 39(a) session
regarding a discovery violation, the military judge “became
agitated” with defense counsel’s voir dire of the military
judge. Id. at 12. The appellant argues that these actions,
along with the findings and the conclusions from the DuBay


3
    Although these arguments were made with respect to actual bias, we will
consider them on the issue of apparent bias, given the absence of any
specific argument by the appellant on that issue.

                                      6
hearing, show a distain for the defense bar and create an
apparent bias. We disagree.
     Contrary to the appellant’s assertions, our review of the
military judge’s comments during the unlawful command influence
motion evidence a jurist committed to ensuring that the
appellant received a fair trial, and that the appellant’s
counsel was not hampered with unlawful interference. When
presented with evidence that the trial defense counsel (TDC) had
been ordered by his commanding officer (CO) 4 to refrain from
contacting witnesses without first coordinating those contacts
with the CO or the trial counsel, the military judge told the
CO: “We can’t do it that way. The defense has to be
uninhibited.” Record at 180. The military judge then had the
CO rescind that order on the stand, and made it “crystal clear”
to the TDC that he could call anyone he liked to properly
represent his client. Id. at 185. It was only after the TDC
indicated that he was still concerned about lingering animosity
over the incident that the military judge made the comments
about “career risks” the appellant now points to. Appellant’s
Brief at 11. However, those comments were not made to express
distain for defense counsel, but rather to explain that although
the TDC had a legitimate concern held by all defense counsel,
“we expect more out of our senior leaders in the military” and
that the military judge, the Chief Defense Counsel of the Marine
Corps, and others had all served as defense counsel without it
damaging their careers. Record at 186. Nonetheless, the
military judge went on to say that if counsel ever felt like
they were being retaliated against for doing their job, then
they should let their chain of command and the judiciary know
immediately, because such action would not be tolerated.
     Also taken out of context were the military judge’s remarks
during the motion session regarding an alleged discovery
violation. Although the military judge did become mildly
agitated with the TDC, it was only after allowing numerous voir
dire questions wherein the TDC kept mischaracterizing the

4
   Although the appellant’s TDC reported to the Regional Defense Counsel, and
then the Chief Defense Counsel of the Marine Corps, for purposes of fitness
reports, he was assigned for administrative purposes (such as leave,
training, etc.) to the Headquarters and Headquarters Squadron. The
lieutenant colonel who gave the order in question was in command of that
unit, and therefore the TDC’s commanding officer.
                                      7
military judge’s answers. Taken as a whole, the transcript
shows that the military judge provided training wherein he
advised a group of judge advocates that discovery is an
affirmative obligation, that all evidence in the possession of
both parties should be turned over without gamesmanship, and
that failure by a party, such as the Government, to respond in a
timely or appropriate fashion should be as a treated as a
denial, and thus prompt the opposing party of file a motion to
compel. The fact that the military judge became mildly annoyed
at TDC’s questions challenging the legitimacy of what the TDC
characterized as “constructive denial” does not serve to support
an argument that the military judge held the defense bar, or the
appellant, in distain. Id. at 359.
     Accordingly, we find this assignment of error to be without
merit.

                       Instructional Error

     The appellant alleges the military judge erred by refusing
to instruct the panel regarding the Marcum factors for the
consensual sodomy specifications under Charge V. We agree.

     At the time of the appellant’s trial, the only court to
have considered the issue had held that Marcum factors were
questions of law to be decided by the military judge, not
questions of fact to be decided by the members. United States
v. Harvey, 67 M.J. 758, 763 (A.F.Ct.Crim.App. 2009), petition
denied, 68 M.J. 489 (C.A.A.F. 2010). That view was later
adopted by this court and the Army Court of Criminal Appeals.
See United States v. Williams, 2011 CCA LEXIS 412 (Army
Ct.Crim.App. 21 Dec 2011), rev’d in part on other grounds, 71
M.J. 356 (C.A.A.F. 2012) (summary disposition); United States v.
Stratton, 2012 CCA LEXIS 16, at *9-10 (N.M.Ct.Crim.App. 26 Jan
2012). However, after our original decision in this case was
issued, our superior court held that “whether a Marcum factor
exists is a determination to be made by the trier of fact based
on the military judge's instructions identifying facts or
factors that are relevant to the constitutional context
presented.” United States v. Castellano, 72 M.J. 217, 223
(C.A.A.F. 2013). Because the appellant’s convictions had not
yet become final under Article 71(c)(1)(C), UCMJ, at the time of


                                8
the CAAF’s decision, the ruling in Castellano is applicable to
this case.

     In light of Castellano, we find that the military judge
committed plain error. See Johnson v. United States, 520 U.S.
461, 468 (1997) (“Where the law at the time of trial was settled
and clearly contrary to the law at the time of appeal” appellate
courts review for plain error.) Here, as in Castellano, “the
members were instructed that they could convict Appellant of
sodomy if they found nothing more than that the physical act had
occurred.” Castellano, 72 M.J. at 219. Accordingly, failure to
instruct the members on the Marcum factors was prejudicial
error. Id. at 223. Thus, we set aside and dismiss the
appellant's convictions for consensual sodomy.

                      Sentence Reassessment

     Because of our action on the findings, we will reassess the
sentence in accordance with the principles set forth in United
States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006), United States v.
Cook, 48 M.J. 434, 438 (C.A.A.F. 1998), and United States v.
Sales, 22 M.J. 305, 307-09 (C.M.A. 1986). Although a “‘dramatic
change in the penalty landscape’ gravitates away from the
ability to reassess” a sentence, United States v. Buber, 62 M.J.
476, 479 (C.A.A.F. 2006) (quoting United States v. Riley, 58
M.J. 305, 312 (C.A.A.F. 2003)), we find no such dramatic change
here.

     While our decision reduces the maximum possible punishment
from confinement for 25 years and 3 months, to confinement for
18 years and three months, both punishments are so far removed
from the six months of confinement actually awarded by the
members as to render the difference legally insignificant. More
importantly, nothing in our decision changes the nature of the
criminal acts that could have been considered by the panel when
determining a proper sentence. Both of the sodomy charges that
we set aside had been merged for sentencing purposes with other
charges at trial. One specification of consensual sodomy had
been merged for sentencing purposes with a specification of
attempted adultery, while the other had been merged with a
specification of actual adultery. Because R.C.M. 1001(b)(4)
allows the Government to present “evidence as to any aggravating

                                9
circumstance directly relating to or resulting from the offense
of which the accused has been found guilty[,]” the members could
have properly considered that fact that the appellant engaged in
consensual sodomy as part of his efforts to convince a
subordinate to have adulterous sexual intercourse with him, and
that on a different occasion he engaged in consensual sodomy as
part of an adulterous sexual encounter with a subordinate’s
wife. Accordingly, we are confident that the members would have
imposed, and the CA would have approved, the previously adjudged
sentence to six months confinement, total forfeiture of all pay
and allowances, and a dismissal.

                           Conclusion

       The findings of guilty to Specifications 1 and 2 of
Charge V and Charge V, Sodomy, are set aside and those offenses
are dismissed with prejudice. The remaining guilty findings and
the sentence are affirmed.

     Chief Judge MITCHELL and Judge HOLIFIELD concur.

                                For the Court




                                R.H. TROIDL
                                Clerk of Court




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