                                CORRECTED COPY

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                            CONN, HOFFMAN and GIFFORD
                               Appellate Military Judges

                           UNITED STATES, Appellee*
                                        v.
                        Sergeant INEZ T. MARTINEZ, JR.
                         United States Army, Appellant**

                                  ARMY 20080699

                            Headquarters, Fort Carson
                   Debra Boudreau, Military Judge (arraignment)
                       Thomas Molloy, Military Judge (trial)
                  Colonel Michael W. Meier, Staff Judge Advocate

For Appellant: Captain Brent A. Goodwin, JA (argued); Colonel Mark Tellitocci,
JA; Lieutenant Colonel Matthew M. Miller, JA; Major Bradley M. Voorhees, JA;
Captain Brent A. Goodwin, JA (on brief); Colonel Mark Tellitocci, JA; Major
Bradley M. Voorhees, JA; Captain Brent A. Goodwin, JA (on brief regarding
specified issues).

For Appellee: Major Adam S. Kazin, JA (argued); Colonel Norman F. J. Allen III,
Colonel, JA; Lieutenant Colonel Martha C. Foss, JA; Lieutenant Colonel Francis C.
Kiley, JA; Major Karen J. Borgerding, JA (on brief); Colonel Norman F. J. Allen III,
Colonel, JA; Lieutenant Colonel Martha C. Foss, JA; Major Adam S. Kazin, JA;
Major Karen J. Borgerding, JA (on brief regarding specified issues).

                                    7 October 2010
                              ---------------------------------
                               OPINION OF THE COURT
                              ---------------------------------

GIFFORD, Judge:

       Appellant was charged with absence without leave and drunk on duty, in
violation of Articles 86 and 112, Uniform Code of Military Justice (10 U.S.C.
§§ 886 and 912) [hereinafter UCMJ]. A military judge, sitting as special court-
martial convicted appellant, pursuant to his pleas, of absence without leave for more
than thirty days and drunk on station, in violation of Articles 86 and 134, UCMJ, 10
U.S.C. §§ 886 and 934. The military judge sentenced appellant to a bad-conduct
discharge, confinement for six months and reduction to the grade of Private E1. For
the Specification of Charge II, the convening authority disapproved the finding of

*Corrected
**Corrected
MARTINEZ  ARMY 20080699

drunk on station, in violation of Article 134, UCMJ (10 U.S.C. § 934) and instead
approved a finding of incapacitation for duty through the prior wrongful indulgence
of alcohol [hereinafter "incapacitation for duty by reason of drunkenness"], in
violation of Article 134, UCMJ, 10 U.S.C. § 934. The convening authority limited
confinement to 164 days and otherwise approved the adjudged sentence.

      In review before this court pursuant to Article 66(c), UCMJ, appellant raises
two assignments of error, to-wit:

                                          I.

             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 RECESS AND DELIBERATIONS,
             IN VIOLATION OF APPELLANT'S RIGHT TO DUE
             PROCESS.

                                          II.

             THE OMISSSION OF ANY REFERENCE TO THE
             SENIOR MILTARY JUDGE WHO APPEARED TO HAVE
             ASSISTED THE GOVERNMENT DURING TRIAL AND
             ENTERED THE TRIAL JUDGE'S CHAMBERS DURING
             RECESSES AND DELIBERATIONS MADE [THE]
             RECORD OF TRIAL SUBSTANTIALLY INCOMPLETE
             IN CONTRAVENTION OF [ARTICLE] 54(c), UCMJ,
             AND RULE FOR COURTS-MARTIAL 1103(b)(2)(B),
             AND WAS A SUBSTANTIAL ERROR.

       For appellant's first assignment of error we assume, without deciding, that the
military judge committed plain error when he did not disqualify himself or obtain
waiver, under the provisions of Rule for Courts-Martial [hereinafter R.C.M.] 902(a),
based on his knowledge of the supervisory judge's contact with the trial counsel
regarding a request for recess in tandem with other facts of the case. We further
find, however, after review of this case under the factors set forth in Liljeberg v.
Health Services Acquisition Corp., 486 U.S. 847 (1988), reversal of the findings is
not warranted. We additionally find, upon review of the entire record, that
appellant's second assignment of error is without merit. Article 59(a), UCMJ.

      Although not raised by appellant, we also find that the convening authority
exceeded his authority under Article 60(c), UCMJ, and R.C.M. 1107(c), when he
MARTINEZ  ARMY 20080699

approved incapacitation for duty by reason of drunkenness for the Specification of
Charge II. We grant relief in our decretal paragraph. We affirm the remaining
findings and the sentence as reassessed. We briefly address this error and
appellant's first assignment of error, although do so in reverse order.

               I. IMPROPER CONVENING AUTHORITY ACTION

                                      Background

       In the Specification of Charge II, appellant was charged with being drunk on
duty. Article 112, UCMJ. See also Manual for Courts-Martial, United States (2008 ed.).
[hereinafter MCM], Part IV, para. 36a. Prior to trial, appellant entered into a pretrial
agreement wherein he agreed, in exchange for a limitation on sentence, to plead
guilty to "drunk on duty" to the Specification of Charge II.

       At trial, for the specification of Charge II and Charge II, appellant entered a
plea of guilty to "the named lesser-included offense of drunk on station" in violation
of Article 134. The offense of drunk on station is listed in MCM, Part IV, para. 73.
Neither the trial counsel nor the defense counsel objected to or commented upon
appellant's plea to drunk on station. Prior to appellant's entry of pleas, the military
judge commented on the record that the parties had discussed, at a R.C.M. 802
session, that appellant was changing his plea of guilty from Article 112 to Article
134 and "the [his] form of plea to the lesser-included offense." The record does not
detail whether the R.C.M. 802 session specified which Article 134 offense appellant
was pleading to, nor the form appellant’s plea would take. In noting corrections to
the stipulation of fact, however, the military judge stated the words "drunk on duty"
were amended to read "drunk on station."

       After entry of pleas, the military judge acknowledged that appellant had
“entered a plea of guilty to the crime of drunk on station." The military judge
advised appellant, however, of the elements of a third offense: incapacitation for
duty through the prior wrongful indulgence of alcohol. Article 134, UCMJ; MCM,
Part IV, para. 76. During the ensuing providence inquiry, the colloquy between the
military judge and appellant established appellant satisfied the elements for the
offense of incapacitation for duty through the prior wrongful indulgence of alcohol.
During the providence inquiry, the trial counsel twice asked the military judge to
obtain additional information from appellant to ensure that a sufficient factual
inquiry had been obtained to satisfy elements of the offense of incapacitation for
duty by reason of drunkenness—i.e., that appellant had been subject to the
requirement to perform duties as an infantryman (MOS 11B) non-commissioned
officer and that his conduct was prejudicial to good order and discipline in the
Armed Forces or was of a nature to bring discredit upon the Armed Forces. When
the military judge entered findings, however, he found appellant guilty of the
offense to which he pled guilty—drunk on station.
MARTINEZ  ARMY 20080699


       In his written post-trial recommendation [hereinafter “PTR”] to the convening
authority pursuant to R.C.M. 1106, for the Specification of Charge II, the staff judge
advocate [hereinafter SJA] recommended the convening authority approve a finding
of guilty for the Article 134, UCMJ, offense of incapacitation for duty through prior
wrongful indulgence of alcohol. In responding to the SJA's PTR, neither appellant
nor his trial defense counsel commented on the SJA’s recommendation to the
convening authority to approve the Article 134 offense of incapacitation for duty
through drunkenness instead of drunk on station. In taking action pursuant to
Article 60(c) and R.C.M. 1107(c), the convening authority approved a finding of
guilty of incapacitation for duty through drunkenness, in accordance with the SJA’s
recommendation.

                                        Discussion

       Because the Article 134, UCMJ, offense of incapacitation for duty by reason
of drunkenness is not a lesser-included offense of the Article 134, UCMJ, offense of
drunk on station, we find the convening authority exceeded his authority under
Article 60(c), UCMJ, and R.C.M. 1107(c). As a result, his approval of the
Specification of Charge II is a nullity.

      A convening authority is not required to specifically act on the findings of a
court-martial. Article 60(c), UCMJ, and R.C.M. 1107(c). See also United States v.
Alexander, 63 M.J. 269 (C.A.A.F. 2006); United States v. Diaz, 40 M.J. 335 (C.M.A.
1994). If he chooses to act on the findings of a court-martial, however, a convening
authority is limited to the options delineated in Article 60(c), UCMJ, and R.C.M.
1107(c). Diaz, 40 M.J. at 341.

       Pertinent to the case sub judice, both Article 60(c)(3)(B) and R.C.M.
1107(c)(1) contain identical language regarding a convening authority's discretion.
As this court stated in United States v. Henderson, Article 60(c) authorizes a
convening authority "to modify any adjudged finding of guilty by setting aside the
finding of guilty and dismissing the related charge or specification or by approving a
lesser-included offense of the adjudged finding of guilty.” 56 M.J. 911 at 912
(Army Ct. Crim. App. 2002). Specifically, the language of Article 60(c) and R.C.M.
1107(c) authorizes a convening authority to "change a finding of guilty to a charge
or specification to a finding of guilty to an offense that is a lesser-included offense
of the offense stated in the charge or specification" (emphasis added). 1

1
    The full texts of Article 60(c) and R.C.M. 1107(c) are set forth below.

                                                                         (continued . . .)
MARTINEZ  ARMY 20080699

       To determine whether an offense is a lesser included offense of a charged
offense, we apply the "elements test" derived from Schmuck v. United States, 489
U.S. 705 (1989). If the elements of one offense are a subset of the charged offense,
the offense would be a lesser-included offense of the charged offense. Id. at 716.
Applying the Schmuck elemental analysis to the instant case, we find the offense of
incapacitation for duty by reason of drunkenness in violation of Article 134, UCMJ,


(. . . continued)

Article 60(c)(3) states:

        (c) Action on the findings of a court-martial by the convening
       authority or other person acting on the sentence is not required.
       However, such person, in his sole discretion, may—

          (A) dismiss any charge or specification by setting aside a
          finding of guilty hereto; or
          (B) change a finding of guilty to a charge or specification to
          a finding of guilty to an offense that is a lesser-included
          offense of the offense stated in the charge or specification.

(emphasis added).

Rule for Courts-Martial 1107(c) states:

       (c) Action on findings. Action on the findings is not required.
       However, the convening authority may, in the convening
       authority’s sole discretion:

          (1) Change a finding of guilty to a charge or specification to a
              finding of guilty to an offense that is a lesser-included
              offense of the offense stated in the charge or specification;
              or

          (2) Set aside any finding of guilty and—

              (A) Dismiss the specification and, if appropriate, the
              charge, or

              (B) Direct a rehearing in accordance with subsection (e) of
              this rule.

(emphasis added).
MARTINEZ  ARMY 20080699

is not a lesser-included offense of drunk on station in violation of Article 134,
UCMJ.

      The offense of drunk on station under Article 134, UCMJ, requires the
government establish two elements:

             (1) That the accused was drunk, disorderly, or drunk and
             disorderly on board ship or in some other place; and

             (2) That, under the circumstances, the conduct of the
             accused was to the prejudice of good order and discipline
             in the armed forces or was of a nature to bring discredit
             upon the armed forces.

MCM, Part IV, para. 73.

      The offense of incapacitation for duty by reason of drunkenness under Article
134, UCMJ, requires the government establish four elements:

             (1) That the accused had certain duties to perform;

             (2) That the accused was incapacitated for the proper
             performance of such duties;

             (3) That such incapacitation was the result of previous
             wrongful indulgence in intoxicating liquor or any drug;
             and

             (4) That, under the circumstances, the conduct of the
             accused was to the prejudice of good order and discipline
             in the armed forces or was of a nature to bring discredit
             upon the armed forces.

MCM, Part IV, para. 76.

       Restatement of the elements of each offense clearly reflects that the two
offenses share only one element in common: that, under the circumstances, the
conduct of the accused was to the prejudice of good order and discipline in the
armed forces or was of a nature to bring discredit upon the armed forces.
Restatement of the elements similarly clearly reflects that the two offenses do not
share in common the two elements set forth in incapacitation for duty by reason of
drunkenness: that one had duties to perform and was incapacitated to perform such
duties through the prior wrongful indulgence of intoxicating liquor or alcohol. Both
of these elements are patently not elements of the offense of drunk on station.
Accordingly, under the Schmuck elemental analysis, those two elements clearly
MARTINEZ  ARMY 20080699

establish that incapacitation for duty by reason of drunkenness under MCM, Part IV,
para. 76, is not a lesser included offense of drunk on station under MCM, Part IV,
para. 73. Based on our conclusion above, we need not address whether the elements
of "drunkenness" under MCM, Part IV, Article 73, and "incapacitation" under MCM,
Part IV, para. 76, are the same for the purpose of the Schmuck elemental analysis.
Cf. United States v. Gonzalez, 60 M.J. 572, 578-79 (Army Ct. Crim. App. 2004).

       Because incapacitation for duty by reason of drunkenness is not a lesser-
included offense of drunk on station, the convening authority exceeded the scope of
his authority under Article 60(c)(3)(B) and R.C.M. 1107(c)(1). The convening
authority's action with regard to the Specification of Charge II is a nullity and we
take appropriate action in our decretal paragraph.

  II. APPELLATE CHALLENGE TO MILITARY JUDGE'S IMPARTIALITY

                                      Background

       Appellant was arraigned by Colonel (COL) B and tried by COL M. Appellant
was advised at the time of arraignment that COL M would likely be trying his case.
The record of trial reflects that although he was an experienced judge advocate,
appellant's court-martial was COL M's first court-martial as a military trial judge.
Colonel B [hereinafter "supervisory judge"] provided oversight of COL M
[hereinafter "military judge"] during appellant's court-martial.

       After appellant's trial, his trial defense counsel submitted clemency matters to
the convening authority pursuant to R.C.M. 1105. In a memorandum to the
convening authority, the trial defense counsel asserted that the supervisory judge's
contact with the trial counsel during appellant's court-martial was "unusual" and
created a perception by appellant that the supervisory judge was "assisting the
prosecution." The trial defense counsel asserted, inter alia, that the supervisory
judge had "unusual" contact with the trial counsel at least twice during appellant's
trial while she was sitting in the spectator section of the courtroom. The trial
defense counsel further stated that as a result of one communication, the trial
counsel requested a recess and the supervisory judge followed the military judge
into his chambers during the recess. The trial defense counsel noted the supervisory
judge also accompanied the military judge into his chambers during deliberations.
The trial defense counsel expressly acknowledged he observed the supervisory
judge's action at trial, but did not take action at that time. The trial defense counsel
stated that the actions of the supervisory judge left appellant with an honest belief
that the trial judiciary was less than impartial towards him.

       The SJA's addendum included a sworn affidavit from the trial counsel. In the
affidavit, the trial counsel acknowledged twice interacting with the supervisory
judge while appellant's court-martial was in session and the supervisory judge was in
MARTINEZ  ARMY 20080699

the spectator section. On one occasion, the supervisory judge passed the trial
counsel a note informing him that the military judge had failed to elicit facts during
the providence inquiry addressing two elements in the Specification of Charge II.
The trial counsel stated that he had already noted the omission, thus the supervisory
judge did not inform him of something of which he was not aware. The trial counsel
further stated the supervisory judge verbally asked him to seek a recess—which he
did—after which the supervisory judge accompanied the military judge into his
chambers. The trial counsel stated that after a short recess, the military judge
returned and proceeded to ask further questions about appellant's pretrial agreement.
The trial counsel's affidavit also confirmed that the supervisory judge accompanied
the military judge into his chambers at deliberations.

       In a sworn affidavit obtained pursuant to this court's order, the supervisory
judge identified her role in appellant's case, explained her supervisory relationship
with the military judge, why she and the military judge shared judicial chambers,
and emphasized the non-substantive nature of their conversations regarding
appellant's case. The supervisory judge recalled communicating with the trial
counsel while appellant's court-martial was in session by passing a note to the trial
counsel. The supervisory judge stated she did so to request a recess after the
military judge failed to address most of the provisions of appellant's pretrial
agreement and the supervisory judge had been unsuccessful in being able to gain the
military judge's attention. The supervisory judge further stated that when the court
recessed, she informed the defense counsel that she had asked the trial counsel to
request the recess. The supervisory judge acknowledged accompanying the military
judge into his chambers after requesting the recess and advising him of the
omissions in addressing all the terms of the pretrial agreement. She emphasized that
at no time did she and the military judge discuss any substantive issues regarding
appellant's case. The supervisory judge stated she does not recall any
communications with the trial counsel about the elements.

       In a sworn affidavit also obtained pursuant to this court's order, the military
judge identified his role in appellant's case, explained the supervisory judge's
supervisory relationship with him, explained why he and the supervisory judge
shared the singular judicial chambers, and emphasized the non-substantive nature of
their conversations regarding appellant's case. The military judge's statement
reflected he became aware of the supervisory judge's request for a recess made via
the trial counsel, although it does not reflect he was aware of the precise mode of
communication. The military judge made no mention of knowledge of any other
contact between the supervisory judge and the trial counsel while appellant's court-
martial was in session. The military judge noted that after the trial counsel
requested a recess, the supervisory judge accompanied him into his chambers. The
supervisory judge advised him of the omissions in addressing many of the terms of
the pretrial agreement. The military judge emphasized that at no time did he and the
supervisory judge discuss any substantive issues regarding appellant's case.
MARTINEZ  ARMY 20080699


      Review of the record of trial reflects that after conducting his factual inquiry
during the providence inquiry on the Specification of Charge I, the military judge
asked both counsel whether they thought any further inquiry was needed. The trial
counsel requested the military judge make further inquiry of appellant on the
elements mentioned in the trial counsel's affidavit.

        The record further reflects that when conducting his inquiry to determine
whether appellant understood the terms of his pretrial agreement, the military judge
initially only addressed a portion of the pretrial agreement with the appellant before
concluding the inquiry. Shortly after the military judge appeared to have concluded
his inquiry of the pretrial agreement and proceed to other portions of the guilty plea
inquiry, the trial counsel requested a recess. After the trial resumed, the military
judge resumed his inquiry into terms of the pretrial agreement and addressed terms
of appellant's pretrial agreement not previously discussed.

                                      Discussion

      Appellant did not challenge the military judge's participation at trial. When
an appellant 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) (citations omitted).

       Appellant avers that a "reasonable person" would question the impartiality of
a military judge who would allow an individual (i.e., the supervisory judge) who
appeared to be "assisting the prosecution" (i.e., her contact with the trial counsel
during the court-martial) to accompany him into his chambers during recesses and
deliberations. As a result, appellant asserts the military judge should have recused
himself under the provisions of R.C.M. 902(a). The facts of the instant case are
somewhat novel, insofar as we examine the conduct of two judges to determine
whether one military judge should have disqualified himself under R.C.M. 902(a),
although we do not do so under a theory of imputation. Cf. Jones, 55 M.J. at 319-20
and United States v. Lynn, 54 M.J. 202 (C.A.A.F. 2000).

      Rule for Courts-Martial 902 delineates general and specific bases for judicial
disqualification. Whereas R.C.M. 902(b) establishes several specific bases for
disqualification, R.C.M. 902(a) establishes a general basis for disqualification on the
appearance of bias. 2 Specifically, R.C.M. 902(a) provides, “Except as provided in

2
  Appellant does not assert, and there is no evidence in the record of trial to warrant,
that the military judge should have disqualified himself for any of the five bases
listed under R.C.M. 902(b). The full text of R.C.M. 902(b) is set forth below:

                                                                       (continued . . . )
MARTINEZ  ARMY 20080699

subsection [902] (e) of this rule, a military judge shall disqualify himself or herself
in any proceeding in which that military judge’s impartiality might reasonably be
questioned.”

      In interpreting R.C.M. 902(a), our superior court articulated the following
standard: "[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." United States v. Quintanilla,


(. . . continued)
        (b) Specific grounds. A military judge shall also disqualify himself or herself
        in the following circumstances:

          (1) Where the military judge has a personal bias or prejudice concerning a
          party or personal knowledge of disputed evidentiary facts concerning the
          proceeding.

          (2) Where the military judge has acted as counsel, investigating officer,
          legal officer, staff judge advocate, or convening authority as to any
          offense charged or in the same case generally.

          (3) Where the military judge has been or will be a witness in the same case,
          is the accuser, has forwarded charges in the case with a personal
          recommendations to disposition, or except in the performance of duties as
          military judge in a previous trial of the same or a related case, has
          expressed an opinion concerning the guilt or innocence of the accused.

          (4) Where the military judge is not eligible to act because the military
          judge is not qualified under R.C.M. 502(c) or not detailed under R.C.M.
          503(b).

          (5) Where the military judge, the military judge’s spouse, or a person
          within the third degree of relationship to either of them or a spouse of such
          person:

             (A) Is a party to the proceeding;

             (B) Is known by the military judge to have an interest, financial or
             otherwise, that could be substantially affected by the outcome of the
             proceeding; or

             (C) Is to the military judge’s knowledge likely to be a material witness
             in the proceeding.
MARTINEZ  ARMY 20080699

56 M.J. 37, 78 (C.A.A.F. 2001) (quoting United States v. Kincheloe, 14 M.J. 40, 50
(C.M.A. 1982) (interpreting 28 U.S.C. § 455(a))). The test is objective, judged from
a reasonable person viewing the proceedings. 3 Quintanilla, 56 M.J. at 78. A key
point of the standard is knowledge of all the facts. See e.g., United States v. Lynn,
54 M.J. at 205; United States v. Mitchell, 39 M.J. 131, 143 (C.M.A. 1994).

       We have carefully examined the record of trial, which includes sworn
affidavits from the supervisory judge, the military judge, and the trial counsel
addressing, inter alia, the substance of appellant's disqualification allegation. We
find the supervisory judge had previously arraigned appellant and thus was known to
appellant as a military judge. The supervisory judge attended appellant's trial to
provide oversight of the military judge, as it was his first trial as a military judge.
During trial, the supervisory judge sat behind the trial counsel in the spectator
section of the court-room. At times, the supervisory judge took notes.

       While appellant's court-martial was in session, there were two "irregular"
contacts between the supervisory judge and the trial counsel. Both communications
took place during the guilty plea phase of appellant’s court-martial. One
communication occurred during the providence inquiry and advised the trial counsel
to communicate to the military judge that he needed to further address two elements
of the specification of Charge II. The second communication consisted of the
supervisory judge advising the trial counsel to request a recess. While there is a
factual dispute in the record of trial as to which communication was verbal and
which was written, the disputed issue is immaterial to resolution of the legal issue
before this court. Both communications occurred while the supervisory judge was
sitting in the spectator section of the courtroom.

        We find the evidence supports that during trial the military judge became
aware of one of the communications between the supervisory judge and the trial
counsel, although perhaps not the precise mode of communication. Specifically, the
military judge became aware of the supervisory judge's request for a recess via the
trial counsel. The military judge's knowledge of the communication between the
supervisory judge and the trial counsel occurred during the providence inquiry phase
of appellant's court-martial. Subsequent to this communication between the trial
counsel and the supervisory judge, when the court was placed in recess, the
supervisory judge accompanied the military judge into his chambers. The
supervisory judge also accompanied the judge into his chambers during
deliberations.



3
  See R.C.M. 902(c)(1) wherein the term "proceeding" is defined to include "pretrial,
trial, post-trial, appellate review, or other states of litigation." See also Mitchell, 39
M.J. at 143.
MARTINEZ  ARMY 20080699

       Consonant with the observations of the Supreme Court of the United States in
Liljeberg, we do not expect military judges to be prescient and "disqualify
themselves based on facts they do not know." Liljeberg, 486 U.S. at 861. We find
the evidence does not support that the military judge was aware of the
communication between the supervisory judge and the trial counsel regarding the
need to further address elements of the Specification of Charge II. As a result, we
find no merit in appellant's assertion that the military judge should have disqualified
himself (or discussed waiver) under R.C.M. 902(a) based on that communication in
tandem with other facts of the case.

       We assume, without deciding, however, that the military judge committed
plain error when he did not disqualify himself or obtain waiver, under the provisions
of R.C.M. 902(a), as a result of his knowledge of the supervisory judge's contact
with the trial counsel regarding a request for recess in tandem with other facts of the
case. The other facts include, but are not limited to: appellant’s knowledge of the
supervisory judge’s status as a member of the U.S. Army Trial Judiciary; the
circumstances of the supervisory judge's attendance at appellant's trial (e.g., sitting
behind the trial counsel and taking notes); her irregular communication with the trial
counsel; the lack of timely and full disclosure on the record by the appropriate
parties of the contacts between the supervisory judge and the trial counsel; and the
supervisory judge's access—albeit permissible—to the military judge during recess
and deliberations, which all contributed to appellant's allegation that the supervisory
judge was assisting the prosecution and the military judge did not act impartially.
We now analyze whether his failure to do so requires reversal under the standards
set forth in Liljeberg.

       The first Liljeberg factor requires consideration of "the risk of injustice to the
parties in the particular case." 486 U.S. at 864. In the present case, our review of
the record convinces us that appellant suffered no injustice based on the military
judge's failure to disqualify himself. Importantly, we find the record of trial
establishes no evidence of bias by the military judge in the adjudication of
appellant's case. Based on review of the record and knowledge of all the facts, we
find the military judge conducted appellant's trial in a fair and legal manner. 4 In that

4
  Although the military judge incorrectly made inquiries of the appellant related to
incapacitation for duties versus drunk on station (see Section I), for the purpose of
the Care inquiry, it was appropriate for the military judge to inquire into all the
facts of the offense to which the appellant "pled" guilty. United States v. Care, 18
U.S.C.M.A. 535, 539, 40 C.M.R. 247, 251 (1969); United States v. Davenport , 9
M.J. 364 (C.M.A. 1980). The military judge's inquiry into the incorrect offense,
however, did not create material prejudice to a substantial right (Article 59(a),
UCMJ) of appellant or violate a due process right vis-à-vis the allegation of error
regarding disqualification.
MARTINEZ  ARMY 20080699

regard, we highlight that the military judge adjudged a sentence that included a
confinement term one month less than what was in the appellant's pretrial agreement
with the convening authority.

       In addition, we note the record of trial reflects that the "senior military judge"
who accompanied the military judge into chambers was performing a supervisory
function. The contact the two judges had regarding appellant's case was not
substantive, but rather limited to procedural matters. See Jones, 55 M.J. at 320
(addressing substantive and non-substantive acts vis-à-vis 28 U.S.C. § 455(a)). Such
discussions were permitted under the judicial rules of conduct. Code of Judicial
Conduct for Army Trial and Appellate Judges, Canon 2, Rule, 2.9(A)(3) (16 May
2008). We further note the two judges shared office space as a result of space
constraints. In sum, the evidence supports that the contact and communications
between the two judges was not improper. Finally, we note the convening authority
granted appellant clemency in the form of sentence relief in response to his
identification of the "unusual" contact between the supervisory judge and the trial
counsel.

       The second Liljeberg factor requires consideration that "the risk that denial of
relief will produce injustice in other cases." 486 U.S. at 864. The disqualification
challenge presented to the military judge in the case sub judice flowed from the
actions of the supervisory judge and form the gravamen of appellant's claim. If such
contacts had not occurred, we have little doubt that the supervisory judge's
accompaniment of the military judge into chambers would not have given rise to a
challenge under R.C.M. 902(a). Review of the record of trial establishes appellant's
belief the supervisory judge was "assisting the prosecution" lacks legal merit. In so
finding, we construe appellant's allegation of "assisting the prosecution" to aver a
bias in favor of the prosecution. The evidence reflects that the supervisory judge's
interactions with the trial counsel during the proceedings were intended to facilitate
the Care inquiry after she was unsuccessful in gaining the attention of the military
judge. The supervisory judge's action advanced the interests of appellant and the
government insofar as they were intended to ensure the requirements of the
providence inquiry were satisfied. 5 Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247;
Davenport, 9 M.J. 364. While the supervisory judge's actions are not to be




5
 Pursuant to a pretrial agreement, appellant agreed to plead guilty in exchange for a
sentence limitation by the convening authority. In accordance with R.C.M. 910(e)
and Care, 18 U.S.C.M.A. at 539, 40 C.M.R. at 251 and Davenport, 9 M.J. 364
(C.M.A. 1980), he was required to provide a factual predicate to the charges to
which he pled guilty.
MARTINEZ  ARMY 20080699

countenanced, her actions did not amount to a bias in favor of the prosecution. 6
Finally, as previously stated, knowledge of all the facts reflects the contact between
the two judges was not improper.

       Appellant's case presents rather novel facts. We recognize the extreme
sensitivity members of the Army trial judiciary exercise in safeguarding the rights of
accused—as demonstrated in the hundreds of cases that are reviewed before this
court each year. Thus, notwithstanding our foregoing conclusions, these additional
observations further convince us it is not necessary to reverse the results of the
present case to ensure military judges exercise the appropriate degree of caution
when dealing with counsel in the future.

       The third Liljeberg factor considers "the risk of undermining the public's
confidence in the judicial process." 486 U.S. at 864. The irregularity which gave
rise to appellant’s challenge relates to appearance of impropriety. The record is
devoid of any evidence that the military judge demonstrated any bias towards or
against either party. R.C.M. 902(b). Review of the entire record of appellant’s case
reveals the military judge adjudicated appellant's case in a fair and legal manner.
When the circumstances giving rise to appellant's concern were brought to the
attention of the convening authority, appellant was granted the clemency requested,
though there was no finding of legal error. With full knowledge of all the facts of
appellant's case and recognizing the circumstances in appellant's case are unlikely to
recur, we conclude reversal of appellant's conviction is not required to avoid
undermining the public's confidence in the judicial process. After careful
application of the Liljeberg factors to appellant's case, we are convinced the
remaining finding of guilty and sentence set forth below should be affirmed and no
injustice will result from such affirmance.

       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

6
  Cf. United States v. Chavira, 25 M.J. 705, 707-708 (A.C.M.R. 1987) (this court
found error for improper ex parte contact by a military judge who was trying to
"accomplish the ends of justice, but [did so] . . . contrary to law" when he strongly
suggested trial counsel obtain another panel). Distinct from our conclusion herein
pertaining to the second Liljeberg factor, the conclusion in Chavira pertained to
whether error occurred (i.e., the finding of ex parte communication). See also
Quintanilla, 56 M.J. at 44, 79 (commenting that not all ex parte communications
require disqualification under R.C.M. 902(a), "particularly if the evidence shows
that the communication did not involve . . . favoritism for one side").
MARTINEZ  ARMY 20080699

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. See Quintanilla,
56 M.J. at 37. 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. 7 In
addition, once the 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. See e.g., Quintanilla, 56 M.J. 77-79. Only with a timely
and full disclosure could the defense counsel have made a decision regarding waiver
under R.C.M. 902(e). Id. 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. Quintanilla, 56 M.J. at 45.
Moreover, as our superior court noted in 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." Id.
(citations omitted). As a result, we caution judges and counsel alike to exercise the
diligence necessary to preserve and promote that public confidence.




7
 In Quintanilla, our superior court noted that certain ex parte communications might
be permissible (e.g., “incidental communications that involve noncontroversial
matters such as routine scheduling discussions . . . does not mandate
disqualification”). 56 M.J. at 44 (citations omitted). When such ex parte
communications occur, however, Quintanilla cited to a multi-factor test one must
engage in to determine whether the ex parte communication necessitates
disqualification under R.C.M. 902. Id. (citations omitted). As a result,
notwithstanding the conclusion that some ex parte contact is permissible, the better
practice for avoiding unnecessary litigation and preserving and promoting
confidence in our military justice system is avoiding ex parte contact altogether.
We recognize, however, that when such ex parte contact occurs, the multi-factor test
provides a useful framework for assessing whether disqualification must occur.
MARTINEZ  ARMY 20080699

                                   III. CONCLUSION

       The findings of guilty to Charge II and its specification are set aside and
dismissed. The remaining findings of guilty are affirmed. We have considered
appellant’s other assignments of error, including matters raised pursuant to United States v.
Grostefon, 12 M.J. at 431 (C.M.A. 1982) and find them without merit. Reassessing the
sentence on the basis of the error noted, the entire record, and the principles of
United States v. Sales, 22 M.J. 305 (C.M.A. 1986), and United States v. Moffeit, 63
M. J. 40 (C.A.A.F. 2006), including Judge Baker’s concurring opinion, we affirm
only so much of the sentence as provides for bad-conduct discharge, confinement for
104 days and reduction to the grade of Private E1. All rights, privileges, and
property, of which appellant has been deprived by virtue of that portion of his
sentence set aside by this decision, are ordered restored. See UCMJ arts. 58b(c) and
75(a).

       Senior Judge CONN and Judge HOFFMAN concur.

                                          FOR
                                          FORTHE
                                              THECOURT:
                                                  COURT:



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