UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                           CAMPANELLA, HERRING and WOLFE
                                Appellate Military Judges

                           UNITED STATES, Appellee
                                       v.
                 Private First Class KARINA FLORES-SANTOS
                         United States Army, Appellant

                                       ARMY 20140066

                      Headquarters, III Corps and Fort Hood
                     Wade N. Faulkner, Military Judge (trial)
                   Jacob D. Bayshore, Military Judge (DuBay)
          Colonel Richard W. Rousseau, Staff Judge Advocate (pretrial)
              Colonel Ian G. Corey, Staff Judge Advocate (post-trial)
   Lieutenant Colonel Joseph M. Fairfield, Acting Staff Judge Advocate (DuBay)

For Appellant: Lieutenant Colonel Charles Lozano, JA; Major Andres Vazquez, Jr.,
JA; Major Daniel E. Goldman, JA (on brief); Colonel Mary J. Bradley, JA; Major
Andres Vazquez, Jr, JA; Major Daniel E. Goldman, JA (on motion for
reconsideration and suggestion for reconsideration en banc).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie, III,
JA; Major Daniel D. Derner, JA; Captain Christopher A. Clausen, JA (on brief).


                                         24 April 2017
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                     SUMMARY DISPOSITION ON FURTHER REVIEW
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CAMPANELLA, Senior Judge:

       A general court-martial composed of a military judge sitting alone convicted
appellant, consistent with her pleas, of attempted distribution of a controlled
substance, conspiracy to distribute a controlled substance, introduction of marijuana,
distribution of a controlled substance, and wrongful use of cocaine in violation of
Articles 80, 81, and 112a of the Uniform Code of Military Justice, 10 U.S.C. §§ 880,
881, 912a (2012) [hereinafter UCMJ]. The convening authority approved the
adjudged sentenced of a bad-conduct discharge, ten months confinement, and
reduction to the grade of E-1.
FLORES-SANTOS—ARMY 20140066

       On 8 June 2016 this court summarily affirmed the findings and sentence in
this case. United States v. Flores-Santos, ARMY 20140066 (Army Ct. Crim. App. 8
Jun. 2016) (summ. disp.). On 7 July 2016 appellant filed a motion for
reconsideration and a suggestion for reconsideration by the court en banc. We
granted the motion for reconsideration and again affirmed the findings and sentence.
United States v. Flores-Santos, ARMY 20140066 (Army Ct. Crim. App. 29 Jul.
2016) (mem. op.).

      Our superior court set aside our decision and remanded appellant’s case for a
hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967),
to make findings of fact and conclusions of law related to the matter underlying the
granted issue, which was:

             WHETHER THE MILITARY JUDGE WAS
             DISQUALIFIED FROM PRESIDING IN APPELLANT’S
             CASE WHERE HE PREVIOUSLY SERVED AS CHIEF
             OF JUSTICE AND SUPERVISED ALL PROSECUTIONS
             FOR APPELLANT’S UNIT, AND HE FAILED TO
             DISCLOSE THE FULL EXTENT OF HIS
             RESPONSIBILITIES AND ACTIONS FROM HIS PRIOR
             POSITION, INCLUDING CONSULTING ON CASES AT
             THE PRE-PREFERRAL AND INVESTIGATION STAGE.

United States v. Flores-Santos, 76 M.J. 42 (C.A.A.F. 2016).

       The DuBay hearing was conducted on 6 March 2017 and the military judge
made findings of fact and conclusions of law in his Ruling on DuBay Issue
Regarding Military Judge’s Qualification. (App. Ex. XIII). We hereby adopt his
findings of fact and conclusions of law. We agree that Lieutenant Colonel (LTC)
(Ret.) Faulkner:

             [W]as not disqualified under [Rule for Courts-Martial
             (hereinafter RCM)] 902(b) as he was not “counsel” in this
             case, and that even though Appellant waived any issues
             regarding [R.C.M.] 902(a) disqualification, when
             considering the trial as a whole, a reasonable person
             would not question the partiality of LTC (Ret.) Faulkner.
             Even if this Court were to presume that [R.C.M.] 902(a)
             was violated and that Appellant did not waive that issue,
             this Court finds no material prejudice to Appellant or
             other facts that necessitate a re-hearing to ensure the
             public retains confidence in the military justice system.




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FLORES-SANTOS—ARMY 20140066

                                  CONCLUSION

     For the reasons stated previously, the findings of guilty and the sentence are
AFFIRMED.

      Judge HERRING and Judge WOLFE concur.

                                       FOR THE
                                       FOR THE COURT:
                                               COURT:




                                       MALCOLM
                                       MALCOLM H.  H. SQUIRES,
                                                      SQUIRES, JR.
                                                               JR.
                                       Clerk of Court
                                       Clerk of Court




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