UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                                Before
                                   COOK, GALLAGHER 1, and HAIGHT
                                       Appellate Military Judges

                                  UNITED STATES, Appellee
                                              v.
                             Specialist SHAWN M. E. PELLETIER
                                United States Army, Appellant

                                             ARMY 20100711

                           Headquarters, 1st Cavalry Division
                        Matthew McDonald, Military Judge (trial)
                     Gregory Gross, Military Judge (DuBay Hearing)
               Lieutenant Colonel Mark H. Sydenham, Staff Judge Advocate

For Appellant: Lieutenant Colonel Jonathan F. Potter, JA; Captain Matthew T.
Jones, JA (on reply brief to supplemental brief following DuBay Hearing);
Lieutenant Colonel Jonathan F. Potter, JA; Captain Jason Nef, JA; Captain Matthew
M. Jones, JA (on supplemental brief regarding DuBay Hearing and reply brief
following DuBay Hearing); Colonel Patricia Ham, JA; Major Richard E. Gorini, JA;
Captain Matthew M. Jones, JA (on supplemental brief and supplemental petition for
new trial following DuBay Hearing).

For Appellee: Major Robert A. Rodigues, JA; Captain Steve T. Nam, JA (on
supplemental brief, supplemental brief regarding DuBay Hearing, and supplemental
petition for new trial following DuBay Hearing);

                                              14 August 2013

          ---------------------------------- -------------------------------------------------------------
            MEMORANDUM OPINION AND ACTION ON PETITION FOR NEW TR IAL
         ---------------------------------- --------------------------------------------------------------

    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

COOK, Senior Judge:

       On 4 August 2010, a military judge sitting as a general court-martial
convicted appellant, contrary to his pleas, of two specifications of aggravated sexual
assault of a child between the ages of 12 and 16 years, one specification of sodomy
with a child between the ages of 12 and 16 years, and one specification of
communicating a threat, in violation of Articles 120, 125, and 134, Uniform Code of

1
 Judge GALLAGHER took final action on this case prior to her permanent change
of station.
PELLETIER – ARMY 20100711

Military Justice, 10 U.S.C. §§ 920, 925, 934 (2006) [hereinafter UCMJ]. The
military judge sentenced appellant to be discharged from the service with a bad-
conduct discharge, to be confined for four months, and to be reduced to the grade of
E-1. The convening authority approved the adjudged sentence. The case was then
forwarded to this court for review pursuant to Article 66, UCMJ.

                                   BACKGROUND

       At trial, EB, the fourteen-year-old victim of the sexual assault and sodomy
offenses, testified against appellant. In general, her testimony was that on multiple
occasions she performed oral sex on and had sexual intercourse with appellant . EB
also testified that after discovering she had told her former boyfriend, CT, that she
had performed oral sex on appellant, appellant threatened to make CT disappear if
she revealed any other information. This statement formed the basis for the
communicating a threat charge.

       On 2 February 2012, pursuant to Article 73, UCMJ, appellant filed a petition
for new trial based on newly discovered evidence. The alleged “new” evidence was
documented in a post-trial affidavit by EB, dated 10 January 2012, wherein she
recanted her claims of sexual encounters with appellant. She stated, “I’ve never had
sex of any kind” with appellant. EB also claimed appellant “never said he would
make [CT] disappear.”

      Also on 2 February 2012, appellate defense counsel filed an appellate brief
assigning five errors, one of which stated:

             THE MILITARY JUDGE’S POST-TRIAL COMMENTS
             CREATED AN APPEARANCE OF BIAS THAT
             MATERIALLY PREJUDICED THE APPELLANT AND
             WARRANTS REVERSAL UNDER LILJEBERG V.
             HEALTH SERVICES ACQUISITIONS CORPS., 486 U.S.
             847 (1988).

       In support of the above assignment of error, a ppellant submitted an affidavit
from one of appellant’s trial defense counsel. In that affidavit, the defense counsel
stated that in a post-trial “bridging the gap” session, the military judge made
disparaging comments about military spouses in general and in particular about the
testimony of appellant’s wife, KP, at trial . Specifically, it was alleged the military
judge stated KP’s testimony was damaging to the defense and “that he can’t stand
military wives and believes they are inflammatory because they will say and do
anything to protect their paycheck.” During the trial, KP testified as a defense
witness.

     On 4 September 2012, we ordered a hearing pursuant to United States v.
DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967), and noted that as a reviewing


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court evaluating a petition for new trial based on newly discovered evidence, we are
to determine whether this evidence “if considered by a court -martial in the light of
all other pertinent evidence, would probably produce a substantially more favorable
result for the accused.” Rule for Courts-Martial [hereinafter R.C.M.] 1210(f)(2)(C).
We further noted EB’s testimony, in light of her post -trial affidavit, may amount to
fraud on the court-martial. Fraud on the court-martial also constitutes grounds for a
new trial if the fraud “had a substantial contributing effect on a finding of guilty or
the sentence adjudged.” R.C.M. 1210(f)(3).

       We further found that based on the facts of this case, where th e alleged
perjurer is the accusing witness and there is a lack of corro borating physical
evidence, a DuBay hearing is required in order for this court to properly assess the
credibility of EB’s recantation. See United States v. Cuento, 60 M.J. 106, 113
(C.A.A.F. 2004) and United States v. Giambra, 33 M.J. 331, 335 (C.M.A. 1991). In
addition, we required this DuBay hearing to determine the facts surrounding the
alleged statements by the military judge during the “bridging the gap” session.

      On 25 September 2012, appellant filed a motion to stay the DuBay hearing
with our superior court, the U.S. Court of Appeals for the Armed Forces (CAAF).
On 23 October 2012, CAAF denied appellant’s motion .

      The DuBay hearing was held on 25 January 2013, and the presiding military
judge subsequently made findings of fact and con clusions of law (Appellate Exhibit
X). In regards to the issue of EB’s post-trial recantation, EB testified at the DuBay
hearing that her recantation was false. In his findings following the DuBay hearing,
the military judge provided he is “convinced 100% that the recantation was false.”

       In response to the issue of whether the trial judge’s post -trial comments
created an appearance of bias that materially prejudiced appellant, the DuBay
hearing first established the five individuals who were present during the “bridging
the gap” session when the post-trial comments were allegedly made: the military
judge, Major (MAJ) MM; two trial counsel, Captains (CPT) KB and CS; and two
defense counsel, CPT NK and CPT VM. CPT VM signed the supporting affidavit in
this case.

        Regarding what they remember about this post-trial discussion, CPT VM
testified consistently with her affidavit . However, none of the other witnesses
present at the “bridging the gap” session entirely corroborated her account of the
session’s content, effect, and tone. Major MM denied making the alleged statements
in question, but he did admit to likely discussing the risk of calling the spouse of an
accused soldier as a witness and shared at least two of his past experience s to
illustrate the point. Neither CPT KB nor CPT CS recalled MAJ MM making a




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PELLETIER – ARMY 20100711

statement about military wives or spouses . 2 Additionally, neither questioned his
impartiality to preside as the military judge in appel lant’s case as a result of his
statements during this post-trial session. Based on his recollection of the post -trial
session, CPT NK did not “think that there was any bias in this particular case as it
relate[d]” to KB and also did not think MAJ MM exhib ited an actual bias during the
session that called into question the judge’s impartiality.

       The DuBay hearing judge concluded he could not “determine exactly what the
military judge said about military spouses or wives during the ‘bridging the gap’
session.” The judge further found MAJ MM had made a “comment about the
credibility of KP and gave examples from his own cases as a counsel to make a
point. All four counsel interpreted the comments and examples a different way.”

       On 3 April 2013, we afforded appellant and the government the opportunity to
file additional pleadings. We have now received multiple briefs on behalf of both
parties. In those briefs, appellant raises additional assignments of error, including a
challenge to the DuBay hearing judge’s findings of fact. Because we do not find the
DuBay judge’s findings of fact clearly erroneous, we have r ejected this assigned
error. The other newly raised assignments of error do not merit discussion or relief.
In response to appellant’s original assignments of error and petition for new trial,
the two issues we ordered to be addressed by the DuBay hearing merit discussion but
ultimately no relief. Additionally, appellant’s fifth initial assignment of error merits
discussion and relief.

                              LAW AND DISCUSSION

       We review a military judge’s fact-finding under a clearly erroneous standard
and conclusions of law under a de novo standard. United States v. Ayala, 43 M.J.
296, 298 70 M.J. 283 (C.A.A.F. 1995). “Thus on a mixed question of law and fact .
. . a military judge abuses his discretion if his findings of fact are clearly erroneous
or his conclusions of law are incorrect.” Id. These same standards apply to both the
DuBay hearing judge and the trial judge. United States v. Anderson, 55 M.J. 198,
201 (C.A.A.F. 2004).

2
  Although CPTs KB and CS did not recall MAJ MM making comments regarding
military spouses or wives, they both testified about comments MAJ MM made
concerning women. CPT KB “was a little bit troubled” by MAJ MM’s comments
because he “appeared to make a statemen t that women do not tell the truth on the
stand or in court.” Captain CS recalled one of MAJ MM’s statements “gave [her]
pause” and although she was tired and the statement was made “a while ago”, she
was left with the impression that MAJ MM said “he knew that female victims of rape
have a tendency to lie.” Although the accuracy of their recollections in this regard
is immaterial in resolving the issue before us, we note MAJ MM convicted appellant
based primarily on the testimony of EB, a female victim of sexual assault.


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PELLETIER – ARMY 20100711

                                Petition for New Trial

       “Petitions for new trial based on a witness’s recantation ‘are not viewed
favorably in the law.’” United States v. Cuento, 60 M.J. 106 (C.A.A.F 2004)
(quoting United States v. Giambra, 33 M.J. 331, 335 (C.M.A. 1991)). A petition for
a new trial should not be granted unless “[t]he court is reasonably well satisfied that
the testimony given by a material witness is false.” Giambra 33 M.J. at 335
(quoting Larrison v. United States, 24 F.2d 82, 87 (7th Cir. 1928)).

        Appellant’s request for a new trial was based on EB’s post -trial recantation
which called into question the truthfulness of her testimony at trial. However, EB
testified at the DuBay hearing that her recantation was false and explained the
motivation behind the false recantation. The DuBay judge is “convinced 100% that
the recantation was false” after hearing all the testimony put forth on the issue.
Accordingly, based on EB’s testimony at the DuBay hearing and the findings of fact
of the military judge, we are “not reasonably well satisfied that” EB’s testimony at
trial was false and deny appellant’s request for a new trial.

                        Military Judge’s Post-Trial Comments

       In conducting our review of this issue, we begin with the premise that “[a]n
accused has a constitutional right to an impartial judge.” United States v. Butcher,
56 M.J. 87, 90 (C.A.A.F. 2001) (internal citation omitted). To help ensure this right,
a military judge is required to disqualify himself based on specific grounds listed in
Rule for Court Martial [hereinafter R.C.M.] 902(b), and “in any proceeding in which
that military judge’s impartiality migh t reasonably be questioned.” R.C.M. 902(a).

       Because appellant raises the issue of disqualification for the first time on
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) (internal citation omitted).
Further, 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.” Id. (internal citations omitted). “The appearance of impartiality is
reviewed on appeal objectively” and uses the standard found in United States v.
Kincheloe, 14 M.J. 40, 50 (C.M.A. 1982): “[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.” Martinez, 70 M.J. at 158 (quoting Kincheloe, 14 M.J. at 50).

       Appellant argues MAJ MM, as evidenced by a specific statement he made
during the post-trial “bridging the gap” session, had a “pre-existing bias against
military spouses” and, as such, should have disqualified himself from appellant’s
case pursuant to R.C.M. 902.




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PELLETIER – ARMY 20100711

       In rejecting appellant’s argument, we first note the argument is based on a
single witness, CPT VM, attributing the statement in question to MAJ MM. Major
MM flatly denies making this statement. The other three witnesses present at the
post-trial session deny hearing MAJ MM make the statement in question and none
questioned MAJ MM’s impartiality to preside over appellant’s case based on
anything he said during the post-trial session.

       Captain VM, although functioning as one of appellant’s trial defense counsel,
failed to request a post-trial 39(a), UCMJ, session to address this issue. She also
does not recall mentioning this statement to her Senior Defense Counsel, her
Regional Defense Counsel, or the Chief Circuit Judge. This issue was not raised in
appellant’s R.C.M. 1105/1106 matters and while her co-counsel, CPT NK, handled
the submission on behalf of appellant, CPT VM did not recall discussing the
inclusion of this issue with CPT NK. Captain VM’s post-trial affidavit submitted in
support of this issue was completed on 24 January 2012, over 18 months after the
post-trial session in question.

        In addition, although not covered during the DuBay hearing, CPT VM, in her
affidavit, stated MAJ MM, during the “bridging the gap” session, informed counsel
that after KP refused to change her testimony concerning whether EB and CS were
having sex in her house, “he couldn’t believe anything the witness said and that it
was very damaging to defense’s case.” However, at trial, after KP had already
testified, to include testifying about the EB and CS issue mentioned above, and had
been excused as a witness, it was MAJ MM who recalled KP, ostensibly to ask
additional questions in an effort to evaluate the testimony of another witness. This
fact shows the military judge still viewed KP’s test imony and recollection as
valuable and not completely without merit.

       We ultimately find the DuBay judge’s findings of fact were not clearly
erroneous and reject appellant’s argument to the contrary. First, we find the DuBay
judge’s finding of fact that it cannot be determined exactly what MAJ MM said
during the “bridging the gap” session regarding military spouses or wives is not
clearly erroneous. This is not surprising based on five people trying to recount a
single conversation held almost two-and- a-half years prior to the DuBay hearing.
The only produced attempt to reduce this conversation to writing is CPT VM’s
affidavit, created 18 months after the fact.

       In addition, the circumstances under which the “bridging the gap” session w as
held contributed to the four captains interpreting the military judge ’s comments in
disparate ways. It was ill-advised to begin this lengthy “bridging the gap” session
after midnight and directly on the heels of a long day of trial. There are appropriate
times and places for military judges to mentor counsel on how to improve their trial
advocacy. The time MAJ MM chose for this session was not one of them.




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PELLETIER – ARMY 20100711

       We also agree with the DuBay hearing judge when he found that MAJ MM, as
the military judge in a judge alone case, evaluated the credibility of KP as was his
duty to do so; commented about KP’s credibility; gave examples from his prior
cases; and that the four counsel interpreted his comments in four different ways.

       We further find that taken as a whole in the context of this trial , the legality,
fairness, and impartiality of appellant’s court-martial were not put into doubt by the
military judge’s actions. The findings of the DuBay hearing judge as well as our
own detailed review of those proceedings and the record do not support a finding
that MAJ MM was partial and thus required to disqualify himself from acting as a
military judge in appellant’s trial. Further, in applying the standard found in
Kincheloe, a reasonable man knowing all the circumstances of this case would not
conclude the judge’s comments created an appearance that his impartiality might
reasonably be questioned.

       Because we do not find that MAJ MM’s post-trial comments support a finding
that he was either actually biased or create d the appearance of bias, we find no error
occurred in this case. Thus, we are not required to test for prejudice. See Liljeberg
v. Health Services Acquisition Corp., 486 U.S. 847 (1988); Martinez, 70 M.J. at 159.

                  Failure to Allege an Article 134 Terminal Element

       The Specification of Charge IV alleged appellant communicated a threat and
thereby violated Article 134, UCMJ . The specification at issue does not allege the
terminal element of conduct that is prejudicial to good order and discipline (Clause
1) or of a nature to bring discredit upon the armed forces (Clause 2). “Where, as
here, a specification neither expressly alleges nor necessarily implies the terminal
element, the specification is defective.” United States v. Gaskins, 72 M.J. 225, 232
(C.A.A.F. 2013) (citing United States v. Fosler, 70 M.J. 225, 229–30 (C.A.A.F.
2011)). However, appellant did not object to the form of the specification at trial,
and “where defects in a specification are raised for the first time on appeal,
dismissal of the affected charges or specifications will depend on whether there is
plain error—which, in most cases will turn on the qu estion of prejudice.” United
States v. Humphries, 71 M.J. 209 at 213–14 (C.A.A.F. 2012) (citing United States v.
Cotton, 535 U.S. 625, 631–32 (2002)). Therefore, appellant must demonstrate “the
Government's error in failing to plead the terminal element of Article 134, UCMJ,
resulted in material prejudice to [appellant's] substantial, constitutional right to
notice.” Id. at 215; UCMJ art. 59(a). To assess prejudice, “we look to the record to
determine whether notice of the missing element i s somewhere extant in the trial
record, or whether the element is ‘essentially uncontroverted.’” Id. at 215–16
(citing Cotton, 535 U.S. at 633; Johnson v. United States, 520 U.S. 461, 470 (1997)).

      After thoroughly reviewing the record, we do not find any indication that
appellant was on notice of the missing terminal element. The government never



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PELLETIER – ARMY 20100711

proffered its theory of criminality with respect to the terminal element and did not
“put on any direct evidence of the terminal element.” Gaskins, 72 M.J. at 233-34.
See also United States v. Goings, 72 M.J. 202 (C.A.A.F. 2013) (finding the appellant
was not prejudiced by the government's failure to plead the terminal element because
it proffered its theory of criminality, presented direct evidence on the termina l
element, and appellant put on a vigorous defense). Based on a totality of the
circumstances in this case, we are not convinced appellant was placed on sufficient
notice of the government's theory as to which clause(s) of Article 134, UCMJ, he
violated. As a result, appellant's substantial rights to not ice were materially
prejudiced by the government's failure to allege the terminal element . See UCMJ
art. 59(a). As such, we will take appropriate action in our decretal paragraph.

                                   CONCLUSION

       Accordingly, upon consideration of the entire record and submission by the
parties, we set aside the findings of guilty to Ch arge IV and its Specification. The
remaining findings of guilty are AFFIRMED. The Petition for a New Trial is
DENIED.

       Reassessing the sentence on the basis of the error noted, the entire record, and
in accordance with 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), to include the
factors identified by Judge Baker in his concurring opinion in Moffeit, the sentence
as approved by the convening authority is AFFIRMED. All rights, privileges, and
property, of which appellant has been deprived by virtue of that portion of the
findings set aside by this decision, are orde red restored. See UCMJ art. 75(a).

      Judge GALLAGHER and Judge HAIGHT concur.

                                        FOR THE COURT:




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




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