         U NITED S TATES N AVY –M ARINE C ORPS
             C OURT OF C RIMINAL A PPEALS
                        _________________________

                            No. 201700129
                        _________________________

                 UNITED STATES OF AMERICA
                                 Appellee
                                     v.

                          BRYCE A. CRUSE
      Construction Mechanic Constructionman (E -3), U.S. Navy
                            Appellant
                     _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: Lieutenant Colonel Eugene H. Robinson, Jr., USMC.
    Convening Authority: Commander, U.S. Naval Forces Japan,
                         Yokosuka, Japan.
   Staff Judge Advocate’s Recommendation: Commander Tracy L.
                        Clark, JAGC, USN.
 For Appellant: Captain Armando A. Rodriguez-Feo, JAGC, USN.
 For Appellee: Major Kelli A. O’Neil, USMC; Lieutenant George R.
                        Lewis, JAGC, USN.
                      _________________________

                       Decided 13 February 2018
                        _________________________

  Before M ARKS , J ONES , and W OODARD , Appellate Military Judges
                         _________________________

This opinion does not serve as binding precedent but may be cited as
persuasive authority under NMCCA Rule of Practice and Procedure
18.2.
                        _________________________

   PER CURIAM:
    A military judge sitting as a general court-martial convicted the
appellant, pursuant to his pleas, of two specifications of attempted sexual
abuse of a child and one specification each of unauthorized absence and
solicitation to produce and distribute child pornography, in violation of
Articles 80, 86, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
                         United States v. Cruse, No. 201700129


§§ 880, 886, and 934. The military judge sentenced the appellant to 30
months’ confinement, reduction to pay grade E-1, forfeiture of all pay and
allowances, a reprimand, and a bad-conduct discharge. The convening
authority (CA) approved the sentence as adjudged but, pursuant to a pretrial
agreement, suspended all confinement in excess of 15 months. Except for the
bad-conduct discharge, the CA ordered the sentence executed.
    The appellant asserts that the military judge should have recused himself
because he was sleeping during the trial defense counsel’s (TDC) sentencing
argument.1 Having carefully considered the record of trial and the parties’
submissions—including the declaration submitted by the appellant and the
affidavit of his TDC—we conclude the findings and sentence are correct in
law and fact and find no error materially prejudicial to the appellant’s
substantial rights. Arts. 59(a) and 66(c), UCMJ.
                                   I. BACKGROUND
    For the first time on appeal, the appellant claims that “[d]uring the
presentencing argument, [he] observed that the military judge dozed off and
closed his eyes for several minutes.”2 In addition to the appellant’s one-
sentence declaration, the appellate defense counsel tendered an affidavit
from the TDC. In the affidavit, the TDC swore that he saw the military
judge’s eyes close a few times for two or three seconds but “did not perceive
the necessity or grounds to raise this issue to the military judge’s, or the
record’s, attention.”3
                                   II. DISCUSSION
   First, we find that—in spite of the diverging statements of the appellant
and his TDC—a post-trial factual evidentiary hearing is not required.
Second, we conclude that there was no plain error committed by the military
judge and, even if there was, the appellant has failed to show any prejudice.
A. No DuBay4 hearing needed
    Over a half-century ago, the Court of Military Appeals concluded “that
appellate-court resolution of [posttrial] claims on the basis of competing
affidavits was not satisfactory,” and that court established the DuBay
hearing as “a new trial-type procedure for factfinding on these posttrial
claims.” United States v. Ginn, 47 M.J. 236, 243 (C.A.A.F. 1997). We are


   1   Raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
   2   Appellant’s Motion to Attach of 21 Aug 2017 at Enclosure B.
   3   Appellant’s Motion to Attach of 15 Aug 2017 at Exhibit A.
   4   United States v. DuBay, 37 C.M.R. 411 (C.M.A. 1967).


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                         United States v. Cruse, No. 201700129


mindful that our Article 66(c), UCMJ, authority to act as a factfinder applies
only in appellate review and not as a trial court. Ordinarily we would order a
DuBay hearing to resolve conflicting facts contained in post-trial affidavits.
     However, the Court of Appeals for the Armed Forces has also held that if
the appellant’s declaration “is factually adequate on its face but the appellate
filings and the record as a whole ‘compellingly demonstrate’ the improbability
of those facts, [we] may discount those factual assertions and decide the legal
issue” without the need for a DuBay hearing. Ginn, 47 M.J. at 248. We find
the TDC’s affidavit and the record as a whole “compellingly demonstrate” the
improbability of the appellant’s claim that the military judge “dozed” during
the TDC’s sentencing argument.
    First, while the appellant asserts that the military judge was dozing for
several minutes “[d]uring the presentencing argument[,]” the TDC’s affidavit
reflects his careful observation of the military judge at the key stages of the
trial:
         Throughout the providency inquiry and witness examination,
         the military judge appeared attentive and focused on the
         proceedings. On two or three occasions during argument of
         counsel, it appeared from my vantage point that the military
         judge’s eyes momentarily closed. At most, his eyes were closed
         for two or three seconds, and then reopened. I saw this happen
         two or three times during argument. Because these occurrences
         were very quick and momentary, I did not perceive the
         necessity or grounds to raise this issue to the military judge’s,
         or record’s, attention.5
    Second, the record compellingly demonstrates that the military judge was
alert and attentive, and not asleep, during the TDC’s sentencing argument.
In the middle of the TDC’s argument concerning the latent psychosexual
development of his client, the following exchange occurred:
         TC: Your Honor, I believe that would be . . .
         MJ: Facts not in evidence?
         TC: Yes, Your Honor.
         MJ: Sustained.6
   Clearly, the military judge was paying attention to the defense’s
sentencing argument, as he was able to sua sponte anticipate the legal basis


   5   Appellant’s Motion to Attach of 15 Aug 2017 at 3.
   6   Record at 129.


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                      United States v. Cruse, No. 201700129


for the trial counsel’s objection without the trial counsel having articulated it.
The record, as a whole, is devoid of any indication that the military judge was
asleep or inattentive during the trial. There is no evidence from any other
courtroom participant—including the trial counsel, the court reporter, the
military judge, or any person in the gallery—that the military judge was
asleep. The appellant’s claim that the military judge was dozing for several
minutes is belied by the record. Therefore, we are able to decide the legal
issue without ordering a DuBay hearing. Ginn, 47 M.J. at 248.
B. No plain error
   The appellant argues that because the military judge was dozing, he
should have recused himself from the trial. RULE FOR COURTS-MARTIAL
902(a), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2016 ed.) requires
military judges to disqualify themselves if their “impartiality might
reasonably be questioned.” There is nothing in the record suggesting
impartiality by the military judge.
   “When an appellant, as in this case, does not raise the issue of
disqualification [of a military judge] until appeal, we examine the claim
under the plain error standard of review.” United States v. Martinez, 70 M.J.
154, 157 (C.A.A.F. 2011) (citing United States v. Jones, 55 M.J. 317, 320
(C.A.A.F. 2001)). “[P]lain error occurs when: (1) there was error, (2) such
error was clear or obvious, and (3) the error materially prejudiced a
substantial right of the accused. . . . The burden lies with [the a]ppellant to
establish plain error.” United States v. Guardado, 77 M.J. 90, 2017 CAAF
LEXIS 1142 at *6 (C.A.A.F. 2017) (citations omitted).
   As outlined above, we find no error. Even viewed in the light most
favorable to the appellant, if the military judge dozed off for two or three
seconds on two or three occasions, he missed less than ten seconds of the
TDC’s argument—an argument which extended over six transcribed pages.
Assuming, arguendo, there was error—and that it was clear and obvious—
the appellant has alleged no prejudice. We also find no prejudice.
                               III. CONCLUSION
   The findings and sentence are affirmed.
                                        For the Court




                                        R.H. TROIDL
                                        Clerk of Court


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