UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                        TOZZI, CAMPANELLA, and CELTNIEKS
                               Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                     First Lieutenant DAHUD HANID-ORTIZ
                           United States Army, Appellant

                                   ARMY 20140288

        Headquarters, Seventh Army Joint Multinational Training Command
                      Christopher D. Carrier, Military Judge
           Lieutenant Colonel Sean T. McGarry, Staff Judge Advocate


For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Major M. Patrick
Gordon, JA; Captain J. David Hammond, JA (on brief) .

For Appellee: Major A.G. Courie III, JA; Major Daniel D. Derner, JA; Major
Daniel M. Goldberg, JA (on brief).


                                   30 June 2015

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                               MEMORANDUM OPINION
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CAMPANELLA, Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of fraudulent appointment, false official statement, and larceny
in violation of Articles 83, 107, and 121, Uniform Code of Military Justice, 10
U.S.C. §§883, 907 and 921 (2012) [hereinafter UCMJ]. The military judge
sentenced appellant to a dismissal, confinement for six months, total forfeitures and
a fine of $25,000 which would increase appellant’s confinement by two additional
years if not paid. The convening authority approved the sentence as adjudged.

       This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises one assignment of error that warrant s discussion but not relief.
HANID-ORTIZ —ARMY 20140288

                                   BACKGROUND

       The charges to which appellant pleaded guilty stem from a seri es of actions
committed over a period of several years. Appellant served seventeen years in the
Army as an enlisted soldier followed by two years as a commissioned officer.
Appellant deployed on multiple occasions for varying lengths of time to different
locations over the period of his career, was awarded a Purple Heart for injuries
received in Iraq, and suffered multiple physical and mental injuries as a result of his
military service.

       During his fourteenth year of Army service, appellant received field grade
non-judicial punishment, a relief for cause non-commissioned officer evaluation, and
a general officer letter of reprimand for the unauthorized wear of the Army Airborne
skill badge. Despite the nature and egregiousness of this offense, a ppellant’s
command chose to allow him to stay in the Army and facilitated his rehabilitative
reassignment to Korea shortly thereafter.

       Appellant had long desired to become a commissioned Army officer. The
aforementioned documentation in his permanent military file, however, was an
obstacle the appellant had to overcome to reach his goal. Consequently, appellant
submitted false documentation in his officer candidate school application packet
with the hope being selected. The documentation included false Army Physi cal
Fitness Training information, false medical information , and falsified superior
reports of interviews and recommendations.

       In February 2011, based on his fraudulent application, appellant received a
commission as an Army quartermaster officer and the following month attended the
basic course at Fort Lee, Virginia. Although appellant’s wife and family lived with
him in Virginia while he attended the basic course, appellant submitted
documentation using a made-up New York City (NYC) address as a home address
for his family so he would receive a basic housing allowance (BAH) at the increased
NYC housing rate instead of the Fort Lee, Virginia, rate.

       After he completed the quartermaster officer basic course at Fort Lee,
appellant was assigned to Germany, where he moved with his wife and family.
Despite the fact that his wife was in Germany with him, a ppellant continued to use a
fraudulent NYC address for his family and received BAH at the NYC housing rate to
which he was not entitled. During the two years appellant falsely represented his
family’s address, he received in excess of $87,000.00 in BAH to which he was not
entitled.

      After appellant’s court-martial, the military judge held a post-trial “bridging
the gap” session attended by the trial counsel, the military defense counsel, and the




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HANID-ORTIZ —ARMY 20140288

civilian defense counsel. During this session, the military judge discussed his
decision to adjudge a dismissal in appellant’s case .

        Appellant asserted in his post-trial clemency submission to the convening
authority pursuant to Rule of Courts-Martial 1105 (hereinafter R.C.M.), that the
military judge’s statements during the bridging the gap session amounted to bias as
the military judge indicated “he could envision no scenario in which a person
convicted of false appointment was not adjudged a dismissal.” As a remedy, the
defense counsel requested the convening authority to disapprove appellant’s
dismissal. Based on appellant’s post-trial clemency submission, the office of the
staff judge advocate obtained memorandums of record (MFR) from the military
judge and the trial counsel regarding the military judge’s comments during the
bridging the gap session.

        The two MFRs were served on appellant and his defense counsel. Defense
counsel did not comment further on the issue of sentencing bias by the military
judge in appellant’s R.C.M. 1105 matters. The SJA included these MFR in his post -
trial advice to the convening authority. The convening authority granted appellant
no relief regarding this issue.

      The trial counsel’s MFR stated in pertinent part:

             . . . the military judge, commented that he was the Chair
             of the Honor Committee while he was a student at the
             Citadel and made further personal comments about the
             importance of integrity, honor, and the oaths that are
             taken by Soldiers.

             Later in the session, a member of the defense team asked
             the Military Judge what they could have done better in
             arguing against the dismissal of the Officer. [The military
             judge] stated that based on the overwhelming evidence of
             fraud and deceit presented during the guilty plea , both
             through the stipulation of fact and witness testimony,
             there was no way he would have ever considered not
             dismissing the Officer.

      The military judge’s MFR stated in pertinent part:

             . . . I noted that the dismissal component of the sentence
             was logically connected to the nature of the offense of
             false appointment.




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             I commonly advise counsel for both sides to argue how
             each component of a proposed sentence relates to the
             conduct of which the accused has been found guilty,
             because any finder of fact will find a sentencing argument
             more convincing if there is some meaningful connection to
             the recognized sentencing factors or particular facts of the
             case.

             I may have said that fifteen years service and being
             promoted to field-grade rank would not make a dismissal
             improper for a false appointment.

             I did not say that I could envision no scenario in which a
             person convicted of a false appointment would not be
             adjudged a dismissal, or words to that effect.

             Not only did I not say such things on this occasion, I
             would not have as a matter of mental habi t and as a matter
             of propriety.

             To date I have been the trial judge for only one case of
             false appointment. Should I have another, I would
             consider all the facts and circumstances of the particular
             offense and the accused in deciding whether to adjudge a
             dismissal, as I did in United States v. Hanid-Ortiz.

       Appellant now alleges that the comments made by the military judge during
the bridging the gap session demonstrate the military judge’s inelastic attitude
towards the imposition of dismissal based solely on the nature of the crime of false
appointment – specifically, that the military judge was improperly disposed to
adjudge a punitive discharge depriving the ac cused of a fair and impartial hearing.
To support the assertion that appellant was materially prejudiced , appellant provides
affidavits from appellant’s military and civilian defense counsel.

      Appellant’s military defense counsel writes in pertinent part:

             . . . The defense team was curious whether [appellant]’s
             long career, good service record, and many service -related
             injuries had done anything to influence the judge. I asked
             whether it made any difference that [appellant] was a
             competent officer – that he had been an officer for a
             number of years, had been promoted, and had received
             many favorable evaluations. [The military judge]
             indicated that it did not make any difference.



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             [I] asked whether, if he had served another fifteen years and
             had been promoted to major or lieutenant colonel, that
             would make the false appointment less egregious. I believe
             I even added a Bronze Star with V Device or Purple Heart
             to the hypothetical, but [the military judge] stood firm. To
             the best of my recollection, his words were, “I cannot
             envision a scenario where someone who was falsely
             appointed as an officer would get to stay in.”

      Appellant’s civilian defense counsel wrote:

             . . . I remember [the military judge]…stating that he “could
             not imagine a scenario where an officer, who really
             shouldn’t be an officer, would be kept in the service.” I
             responded that I tried to make it as “difficult on him as
             possible” based upon our case in extenuation and
             mitigation; to which the judge conceded that case made
             him consider the dismissal issue, but ultimately he again
             inferred that he had difficulty reconciling retention based
             upon the nature of the charge.

                               LAW AND DISCUSSION

       “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. The moving party has the burden of establishing a reasonable factual basis for
disqualification and it must be based on more than mere surmise or conjecture. See
United States v. Allen, 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 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 questions.” United States v. Burton, 52 M.J. 223,
226 (C.A.A.F. 2000)(quoting United States v. Reynolds, 24 M.J. 261, 265 (C.M.A.
1987)). In the absence of actual bias or prejudice, disqualification under R.C.M.



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902(a) is considered under an objective standard: “Any 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." United States v. Norfleet, 53 M.J. 262, 270 (C.A.A.F. 2000)
(quoting United States v. Kincheloe, 14 M.J. 40, 50 (C.M.A. 1982), quoting E.
Thode, Reporters Notes to Code of Judicial Conduct 60 (1973)). “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 Services Acquisition
Corp., 486 U.S. 847, 860, 108 S. Ct. 2194, 100 L. Ed. 2d 855 (1988)) . Here, the
appellant alleges apparent bias.

       As a threshold matter, we must first look to whether a post-trial fact-finding
hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967) is
necessary and required and would assist the court. United States v. Ginn, 47 M.J.
236 (1997). We find in this case a DuBay hearing is not necessary. A post-trial
evidentiary hearing is not required simply because an affidavit is submitted by an
appellant. Applying the fourth Ginn factor, we conclude that an evidentiary hearing
is not warranted. Assuming appellant's affidavit is factually adequate on its face,
“the appellate filings and the record as a whole ‘compellingly demonstrate’ the
improbability of those facts” and we may therefore “discount those factual assertions
and decide the legal issues.” Id at 248.

       Appellant has not met his burden of establishing the military judge was
improperly predisposed to adjudging a punitive discharge. In rejecting this position,
we first note appellant’s argument is primarily based on appellant’s military defense
counsel’s recollection. The other three witnesses present , including appellant’s
civilian defense counsel, provide a more flexible variation of the military judge’s
comments during the post-trial session, making the military defense counsel’s
version less probable. But even if we discount the military judge ’s and the trial
counsel’s version of the comments as self-serving, the civilian defense counsel
specifically states in his affidavit that “the judge conceded [during the bridging the
gap session] the [sentencing] case made him consider the dismissal issue” (emphasis
added). The fact that the military judge considered not judging a dismissal in
appellant’s case is all that is required in demonstrating he had an open mind
concerning various sentencing options. He need not side with appellant – only
consider adjudging or not adjudging any authorized punishments. See United States
v. Greaves, 48 M.J. 885 (AF Ct. Crim. App 1998).

       The military judge’s commentary must be viewed objectively though the
prism of context. It is not unusual that an officer in the armed services would have
strong attitudes about the importance of soldier integrity. Appellant pleaded guilty
to obtaining his commission fraudulently, lying, and stealing from the government.
The military judge’s comments to counsel connecting his decision to adjudge a
dismissal with appellant’s underlying fraudulent conduct are logical and would not,



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under these facts, undermine the public's confidence or essential faith in the court-
martial process. We conclude the military judge’s comments did not evince an
inelastic sentencing attitude and did not result in a situation which would cause us to
reasonably question his impartiality or the legality or fairness of appellant’s court -
martial.

                                   CONCLUSION

       Upon consideration of the entire record and the submissions of the parties we
hold the finding of guilty and the sentence are AFFIRMED.

      Senior Judge TOZZI and Judge CELTNIEKS concur.

                                        FOR
                                        FOR THE
                                            THE COURT:
                                                COURT:




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




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