UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before
BROOKHART, SALUSSOLIA, and SCHASBERGER
Appellate Military Judges

UNITED STATES, Appellee
Vv.
Sergeant First Class QUANTRELL L. ANDERSON
United States Army, Appellant

ARMY 20170158

Headquarters, United States Army Aviation Center of Excellence
Richard J. Henry, Military Judge
Lieutenant Colonel Leslie A. Rowley, Staff Judge Advocate

For Appellant: Lieutenant Colonel Tiffany D. Pond, JA; Major Angela D. Swilley,
JA; Captain Joseph C. Borland, JA (on brief).

For Appellant: Colonel Steven P. Haight, JA; Lieutenant Colonel Wayne H.
Williams, JA; Major Jonathan S. Reiner, JA; Captain Allison L. Rowley, JA (on
brief).

5 February 2020

SCHASBERGER, Judge:

This is our second time reviewing this case under Article 66, Uniform Code of
Military Justice, 10 U.S.C. § 866 [UCMS]. In our first review, we affirmed the
findings and sentence in appellant’s case in an Opinion of the Court.! United States
y. Anderson, 78 M.J. 727 (Army Ct. Crim. App. 2019). Therein, this court did a
thorough analysis of appellant’s maltreatment convictions. While this court

 

1 In March 2017, an enlisted panel sitting as a general court-martial convicted
appellant, contrary to his pleas, of three specifications of maltreatment and one
specification of abusive sexual contact, in violation of Articles 93 and 120, UCMJ.
The panel sentenced appellant to a bad-conduct discharge, confinement for thirty
months, and reduction to the grade of E-1. The convening authority approved
appellant’s sentence as adjudged, and waived automatic forfeitures for a period of
six months, directing those funds be paid to appellant’s spouse.
ANDERSON—ARMY 20170158

reiterates the maltreatment analysis from our previous opinion, we focus here on the
issue remanded by our superior court for our consideration.”

After our review, appellant sought review of his case by the Court of Appeals
for the Armed Forces (CAAF). As part of his petition for grant of review, appellant
personally asserted, pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982), that his military judge lacked impartiality. This assertion was based on a
notice appellant received that his military judge, Lieutenant Colonel (LTC) Richard
Henry, “was involved in an inappropriate relationship with the wife” of an attorney
practicing before him. Specifically, an investigation found that LTC Henry engaged
in an inappropriate relationship with Mrs. KC, the wife of Captain (CPT) AC, a
judge advocate who practiced before LTC Henry as a trial counsel and later became
a defense counsel in the same judicial circuit. The CAAF ultimately granted
appellant’s petition for review, and remanded his case for this court to address the
following specified issued:

WHETHER THE MILITARY JUDGE ERRED BY
FAILING TO RECUSE HIMSELF BASED ON
CIRCUMSTANCES THAT, IF KNOWN AT THE TIME OF
APPELLANT’S COURT-MARTIAL, WOULD HAVE
PROVIDED REASONS TO REASONABLY QUESTION
HIS IMPARTIALITY.

United States v. Anderson, M.J.___, 2019 CAAF LEXIS 777 (C.A.A.F. 2019)
(order).

After careful consideration of the facts and circumstances surrounding LTC
Henry’s inappropriate relationship with Mrs. KC, we find that LTC Henry was not
disqualified at the time of appellant’s court-martial in March 2017. Specifically,
CPT AC played no role in appellant’s court-martial, and there is no evidence that
LTC Henry’s relationship with Mrs. KC otherwise required disclosure at appellant’s
trial. Additionally, even if LTC Henry was disqualified in March 2017, we are
convinced that LTC Henry’s involvement in appellant’s case does not risk
undermining the public’s confidence in the judicial process. Accordingly, we affirm
appellant’s findings and sentence in our decretal paragraph.

 

? We note that in our original opinion, we erroneously wrote that the adjudged and
approved sentence included forfeitures and that the convening authority credited
appellant with four days against his sentence to confinement. The correct adjudged
and approved sentence is as stated in note 1, above.
ANDERSON—ARMY 20170158
BACKGROUND?

In 2016 and at all times relevant to his court-martial, appellant was assigned
at Fort Rucker, Alabama. Moreover, he committed the misconduct, was charged,
and was tried at Fort Rucker, Alabama. At the time, LTC Henry was serving as a
military judge at Fort Benning, Georgia. As part of his duties, LTC Henry was
detailed to courts-martial at Fort Rucker, Alabama. Captain AC was assigned as a
trial counsel in the Fort Benning, Georgia, Office of the Staff Judge Advocate
(OSJA). At all times relevant to this case, CPT AC was married to Mrs. KC; LTC
Henry was also married.*

Mrs. KC first met LTC Henry in October 2016 at a Halloween party hosted by
the Fort Benning, Georgia, OSJA. After the party, LTC Henry and Mrs. KC began
exchanging messages via Facebook messenger. In their messages, they discussed
personal issues such as children, family, work, and marriage, as well as “non[-]
personal issues.” Over time, they developed a deep friendship. Mrs. KC shared
things with LTC Henry that she only shared with one other longtime friend.

On 6 December 2016, LTC Henry presided over the initial Article 39(a),
UCMJ, session and the arraignment at appellant’s court-martial at Fort Rucker,
Alabama. Lieutenant Colonel Henry stated on the record that he was not aware of
any matter that might be a ground for challenging him as the presiding judge.
Neither the prosecution nor the defense challenged LTC Henry. Lieutenant Colonel
Henry later presided over appellant’s trial on the merits, which began on 14 March
2017. The prosecutors assigned to appellant’s case were detailed by the staff judge
advocate at Fort Rucker, Alabama. Captain AC did not participate in any stage of
appellant’s court-martial.

 

3 Our review and discussion of the facts and circumstances surrounding appellant’s
convictions is limited to those facts and circumstances necessary to resolve the issue
remanded by our superior court.

4 As we did in United States v. Springer, M.J.__, ARMY 20170662 (Army Ct.
Crim. App. 22 Jan. 2020), we take judicial notice of various items related to LTC
Henry’s relationship with Mrs. KC, located in two records of trial from another
court-martial, United States v. Rudometkin, ARMY 20180058, and United States v.
Rudometkin, ARMY MISC 20180675. Three items are particularly relevant to their
relationship: (1) App. Ex. LXXIX, United States v. Rudometkin, ARMY 20180058
(military judge’s findings of fact and conclusions of law concerning LTC Henry’s
inappropriate relationship); (2) transcript pages 1403-1541, United States v.
Rudometkin, ARMY 20180058 (Article 39(a), UCMJ, post-trial hearing related to
LTC Henry’s relationship with Mrs. KC); and (3) Def. App. C., United States v.
Rudometkin, ARMY MISC 20180675 (Army administrative investigation into LTC
Henry’s relationship with Mrs. KC).
ANDERSON—ARMY 20170158

In the months after appellant’s court-martial, Mrs. KC’s relationship with
LTC Henry grew steadily closer. By December 2017, CPT AC began to notice what
he deemed to be suspicious behavior by his wife. Specifically, CPT AC noticed the
frequency of the texting between LTC Henry and Mrs. KC increased in December.
The texting would occur at all hours, to include well into the night.

The relationship between LTC Henry and Mrs. KC continued to grow in early
2018, where the two frequently attended yoga classes and dined at restaurants
together. Lieutenant Colonel Henry also allowed Mrs. KC to use the courtroom to
study for classes she was taking in furtherance of her master’s degree. In April
2018, CPT AC accused Mrs. KC of having an affair with LTC Henry and reported
his concerns to his chain of command.

Following CPT AC’s report, LTC Henry was removed from the bench on 8
April 2018. Thereafter, the then Commander of the United States Army Legal
Services Agency appointed Colonel (COL) DR to conduct an investigation of LTC
Henry pursuant to Army Reg. 15-6, Boards, Commissions, and Committees:
Procedures for Administrative Investigations and Boards of Officers (1 Apr. 2016)
[AR 15-6]. The investigating officer concluded that LTC Henry engaged in “a
personal and emotionally intimate relationship with Mrs. [KC] between December
2017-April 2018.”

LAW AND DISCUSSION

“When an appellant, as in this case, does not raise the issue of disqualification
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)). “Plain error occurs when (1) there is error, (2)
the error is plain or obvious, and (3) the error results in material prejudice.” Jd.
(citing United States v. Maynard, 66 M.J. 242, 244 (C.A.A.F. 2008)).

“An accused has a constitutional right to an impartial judge.” United States v.
Butcher, 56 M.J. 87, 90 (C.A.A.F. 2001) (citations and internal quotation marks
omitted). In furtherance of this right, the President promulgated Rule for Courts-
Martial (R.C.M.) 902, which provides the framework for when a military judge must
be disqualified from participating in a court-martial. Rule for Courts-Martial
902(a)-(b) establishes grounds for disqualification when a military judge is either
actually biased or conflicted based on some specific grounds, or when the military
judge appears to lack impartiality under all the facts and circumstances. See also
Martinez, 70 M.J. at 157. Here, we focus on the military judge’s appearance of
impartiality.

“[A] military judge shall disqualify himself or herself in any proceeding in
which that military judge’s impartiality might reasonably be questioned.” R.C.M.
ANDERSON—ARMY 20170158

902(a) (emphasis added). To determine if a military judge should disqualify
himself, “the test 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. United States v. Burton, 52 M.J. 223, 226 (C.A.A.F. 2000)
(citations and internal quotation marks omitted). When conducting this test, we
apply an objective standard of “any conduct that would lead a reasonable man
knowing all the circumstances to the conclusion that the judge’s impartiality might
reasonably be questioned.” United States v. Kincheloe, 14 M.J. 40, 50 (C.M.A.
1982) (citations and internal quotation marks omitted).

If we determine the military judge should have disqualified himself, we then
analyze the facts to determine if the error was harmless. “In a plain error context we
look to see if the error materially prejudiced the substantial rights of the appellant”
pursuant to Article 59(a), UCMJ. Martinez, 70 M.J. at 159.

Even absent material prejudice to a substantial right pursuant to Article 59(a),
UCMBJ, a judge’s failure to disqualify himself may still require a remedy after
applying the test laid out in Liljeberg v. Health Services Acquisition Corp., 486 U.S.
847, 862-64 (1988). See Martinez, 70 M.J. at 159. In Liljeberg, the Supreme Court
considered three factors in determining “whether a judgment should be vacated”
based on a judge’s appearance of partiality: “[1] the risk of injustice to the parties
in the particular case, [2] the risk that the denial of relief will produce injustice in
other cases, and [3] the risk of undermining the public’s confidence in the judicial
process.” 486 U.S. at 864. The CAAF applies the same three-part test in analyzing
cases involving a military judge’s appearance of partiality pursuant to R.C.M.
902(a). See United States v. Quintanilla, 56 M.J. 37, 45 (C.A.A.F. 2001).

We therefore initially ask ourselves whether a reasonable person, knowing all
the circumstances, would question LTC Henry’s impartiality and, if so, is a remedy
required? For the reasons set out below, we answer the first question in the negative
and therefore need not reach the second question.

In contrast to Springer, M.J.__, ARMY 20170662, we specifically find
that here LTC Henry was not disqualified to act as the military judge in appellant’s
case. At the time of appellant’s March 2017 court-martial at Fort Rucker, Alabama,
the evidence shows LTC Henry, a military judge assigned to Fort Benning, Georgia,
was friends with the wife of a prosecutor assigned to Fort Benning, Georgia.
Critically, that prosecutor, CPT AC, had no involvement with appellant’s case.

In reviewing this case, we have found no case law or other authority which
suggests a military judge must disclose a friendship with the spouse of a prosecutor,
when that prosecutor is in no way involved in the case at issue. We consider
whether a reasonable person knowing all the facts and circumstances of appellant’s
case would question LTC Henry’s impartiality. Specifically, the relevant facts and
ANDERSON—ARMY 20170158

circumstances include: (1) the nature of LTC Henry’s relationship with Mrs. KC at
the time of trial (friendship); (2) the locality of appellant’s court-martial (Fort
Rucker, Alabama instead of Fort Benning, Georgia, where CPT AC was assigned);
(3) CPT AC’s lack of participation in appellant’s court-martial; (4) CPT AC’s
assignment as a prosecutor in a different OSJA than the one prosecuting appellant’s
case; and (5) the lack of similarity between the charges in appellant’s case and the
nature of LTC Henry’s undisclosed conduct. Based on these facts and
circumstances, we find that a reasonable person would have no reason to question
LTC Henry’s involvement or impartiality in appellant’s case. Accordingly, we find
that LTC Henry was not disqualified from acting as the military judge in appellant’s
court-martial.

As we find that LTC Henry was not disqualified from acting as the military
judge in appellant’s case, we need not conduct an Article 59(a), UCMJ, analysis, nor
analyze the three factors identified in Liljeberg.°

CONCLUSION

The findings and sentence are AFFIRMED.°

Senior Judge BROOKHART and Judge SALUSSOLIA concur.

 

> Assuming arguendo that LTC Henry erred by not disclosing his relationship with
Mrs. KC or failing to recuse himself from appellant’s case, we still find a remedy for
such an error is unnecessary. First, we find that appellant suffered no material
prejudice to a substantial right. We have not identified any rulings or decisions in
appellant’s case that would arise from LTC Henry’s failure to recuse himself or
disclose his relationship with Mrs. KC. Second, our analysis of the three-prong test
outlined in Liljeberg leads us to the conclusion that no remedy is necessary. We do
not believe, based on the facts of this case, that there is a risk of injustice to the
parties, nor do we believe that denial of relief will produce injustice in other cases.
Critically, we are also confident after considering the totality of the proceedings that
a reasonable person knowing the entire record would have confidence in the judicial
process. There is simply insufficient evidence to establish that LTC Henry’s
relationship with Mrs. KC had risen to an inappropriate level when appellant was
tried in March 2017, and CPT AC’s absence in this case forecloses any potential
concerns about confidence in the judicial process.

6 As discussed above, beyond considering herein the issue remanded by our superior
court, this court reiterates the analysis of appellant’s maltreatment convictions
contained in our previous opinion in this case, Anderson, 78 M.J. 727.
ANDERSON—ARMY 20170158

FOR THE COURT:

W lobed

MALCOLM H. SQUIRES,
Clerk of Court
