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

                            UNITED STATES, Appellee
                                        v.
                      Staff Sergeant ROBERT D. CARLSON
                          United States Army, Appellant

                                   ARMY 20130129

                     Headquarters, United States Army Alaska
                           Stefan Wolfe, Military Judge
                   Colonel Tyler J. Harder, Staff Judge Advocate


For Appellant: Colonel Kevin Boyle, JA; Lieutenant Colonel Jonathan F. Potter, JA;
Captain Michael J. Millios, JA (on brief); Colonel Kevin Boyle, JA; Major Amy E.
Nieman, JA; Captain Michael J. Millios, JA (on reply brief) .

For Appellee: Major A.G. Courie, III, JA; Major John K. Choike, JA; Captain
Jaclyn E. Shea, JA (on brief).


                                      29 May 2015

                              ----------------------------------
                               MEMORANDUM OPINION
                              ----------------------------------

CAMPANELLA, Judge:

       A military judge sitting as a general court -martial convicted appellant,
pursuant to his pleas, of one specification of assault consummated by a battery, four
specifications of aggravated assault, one specification of willfu lly discharging a
firearm under such circumstances as to endanger human life, and one novel
specification of wrongfully and wantonly shooting at a police officer with a pistol,
conduct likely to cause death or grievous bodily harm, in violation of Articles 128
and 134, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. § 928, 934
(2012). The military judge sentenced appellant to a dishonorable discharge,
confinement for eight years, forfeiture of all pay and allowances, and reduction to
CARLSON —ARMY 20130129

the grade of E-1. The convening authority deferred the adjudged forfeitures until
action and waived automatic forfeitures for a period of six months. 1

        This case is before for review us pursuant to Article 66, UCMJ. Three of
appellant’s four assignments of error warrant discussion and two warrant relief.
First, appellant argues the military judge should have disqualified himself based on
comments made when the military judge was a trial counsel over five years before
appellant’s court-martial. For the reasons explained below, we disagree. Second,
we find an unreasonable multiplication of charges where appellant was found guilty
of both aggravated assault of a police officer and wrongfully and wantonly shooting
at that same police officer. Third, we grant relief for the dilatory post-trial
processing of appellant’s case. Appellant’s personal submissions made pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) do not warrant relief.

                                  BACKGROUND

    a. Appellant’s Criminal Conduct

       In the early morning hours of 22 July 2012, appellant came home to his off-
post residence from a bar with his wife, CS, and her friend, VW. Appellant slept on
the couch while CS and VW slept in CS’s bedroom. After some time, appellant
kicked the bedroom door open, grabbed CS’s phone, and left the room. He
ultimately ended up outside, and his wife tried to retrieve her phone from him.
Appellant knocked his wife to the ground and hit her twice in the face. Appellant’s
neighbor, Sergeant (SGT) PF saw appellant’s assault and called the police.

       At approximately 0430, SGT KL, a member of the Fairbanks Police
Department, arrived at appellant’s house. Sergeant KL was aware based upon a
neighbor’s report that appellant had stated words to the effect of, “if the police show
up, there will be bloodshed.”

       At some point, appellant loaded his Beretta .40 caliber pistol. He wanted to
shoot himself but could not bring himself to do it. Because it was summertime in
Alaska, it was daylight with clouds and haze outside. Appellant pointed his pistol in
the direction of SGT KL, CS, VW, and SGT PF and fired nine rounds through the

1
  The six months of waived forfeitures entirely overlapped with the period of
deferred forfeitures. The convening authority might have provided appellant and his
dependants a greater benefit had he disapproved, mitigated, or suspended the
adjudged forfeitures at action and waived automatic forfeitures for a period of six
months afterwards. However, we find no abuse o f discretion in overlapping the
waiver and deferment of forfeitures. See Rule for Courts-Martial [hereinafter
“R.C.M.”] 1101(c)(3) (“The decision of the authority acting on the deferment
request shall be subject to judicial review on ly for abuse of discretion.”).


                                           2
CARLSON —ARMY 20130129

glass window. One round struck SGT KL’s police cruiser, and three rounds struck a
residence on the opposite side of the street. Eventually appellant walked outside and
surrendered to the police.

    b. Appellant’s Court-Martial

        During appellant’s court-martial, the parties and military judge spent
considerable time addressing issues relating to appellant’s mental health. At the
initial Article 39(a), UCMJ, session, the military judge noted that the government
had inadvertently obtained the “long-form” R.C.M. 706 results and ordered the
government not to review that document. The military judge also granted a defense
motion for an expert consultant in the field of fo rensic psychiatry.

      At the providence inquiry, the military judge noted appellant had undergone
an examination pursuant to R.C.M. 706. He properly explained to appellant various
defenses based on mental responsibility, including lack of mental responsibil ity
under Article 50a, UCMJ, and the fact that one’s mental condition might negate
elements such as specific intent or knowledge. After being properly advised of these
defenses, appellant disclaimed having those defenses.

       During the pre-sentencing hearing, appellant called Dr. V, who testified that
she diagnosed appellant with post-traumatic stress disorder, based in large part on
appellant’s three combat deployments. Appellant’s unsworn statement addressed his
extensive combat experience resulting in post-traumatic stress. The military judge,
when recommending the convening authority defer and waive forfeitures, did
misstate the number of appellant’s deployments, saying he had been deployed twice
rather than three times.

    c. The Military Judge’s 2007 Comments Made as a Prosecutor

       In 2007, the military judge, then-Major (MAJ) Wolfe, served as a trial counsel
in the Military District of Washington. In this capacity, MAJ Wolfe prosecuted First
Lieutenant (1LT) EW, who, while being treated at a military hospital, allegedly
waved a gun at a psychiatric nurse, fired two bullets into the c eiling, and shot
herself in the stomach. It appears 1LT EW intended to offer the defense of lack of
mental responsibility at a court-martial. 2




2
 Appellant has appended to the record a 2007 Washington Post article addressing
1LT EW’s case and an email exchange between MAJ Wolfe and 1LT EW’s defense
counsel. The government did not challenge appellant’s mot ion to admit these
documents.


                                          3
CARLSON —ARMY 20130129

      In that case, MAJ Wolfe sent an email to the 1LT EW’s defense counsel, in
which he self-admittedly “ranted” about 1LT EW’s decision not to accept a
resignation in lieu of trial by court -martial (RILO):

            I am equally baffled by the decision to go to court. []
            Since I have started researching this issue [of lack of
            mental responsibility] I have found that:

         1) the defense wins 1% of these cases (source – Dr. [L]);
         2) the bench book instructions are overwhelmingly G ov
            friendly (read the definition of “clear and convincing”, to
            me it is better than reasonable doubt)
         3) Even if she wins and is acquitted, she still goes to jail!!!
            Ok, not jail, but Butner, and for an undetermined time (ask
            Hinckley what that means). Also I am not sure that “not
            guilty by reason of mental responsibility” is really the
            same as “not guilty” in the eyes of society. I would prefer
            to have a [general] discharge, then be acquitted for this
            reason. Even if she wins, from my seat, she loses and is
            worse off vis-a-vis a RILO.

            For example, the Gov wins if the panel finds the evidence
            “unclear” or they are not “convinced”. Who doesn’t find
            psycho-babble unclear. How many diagnoses does she
            have from how many doctors? (and I don’t need to
            convince the whole panel, I think just more than a third).
            Re-read the company commander’s recommendation on
            the RILO. How many people out there believe that
            insanity should never be a defense, that it is just, as he
            said, an “excuse.”

            From my perspective, that’s why we supported the RILO.
            It was a fair compromise. But she has now demand ed her
            day in court. I don’t know what will happen in regards to
            referral, but I won’t feel too bad if we give her what she
            wants. I know I have said this before, but this is a HUGE
            gamble for little payout.

            I was a PEB attorney at [Walter Reed Army Med ical
            Center.] I see little or no money for her if she is retired. I
            see no extra VA benefits from an Honorable vs. RILO.
            Essentially she is making this gamble for commissary
            privileges – and this assumes that the Army medically
            retires her (likely, but not certain). Weighed that against



                                          4
CARLSON —ARMY 20130129

             the possibility of being convicted of numerous violent
             felonies…..

            OK, I’ve ranted. She made the call she’s made.
The record does not reflect the ultimate disposition of 1LT EW’s case.

                               LAW AND DISCUSSION

                         Disqualification of the Military Judge

       It is axiomatic that “[a]n accused has a right to an impartial judge.” United
States v. Butcher, 56 M.J. 87, 90 (C.A.A.F. 2001) (quoting United States v. Wright,
52 M.J. 136, 140 (C.A.A.F. 1999)). R.C.M. 902 implements this rule and “provides
two bases for disqualification of a military judge.” United States v. Martinez, 70
M.J. 154, 157 (C.A.A.F. 2011). The first basis is a military judge’s duty to
“disqualify himself or herself in any proceeding in which that military judg e’s
impartiality might reasonably be questioned.” R.C.M. 902(a). The second basis
involves the specific, enumerated circumstances requiring disqualification listed at
R.C.M. 902(b). Our superior court has explained disqualification analysis under
R.C.M. 902 as follows:

             [I]n short, RCM 902 . . . requires consideration of
             disqualification under a two-step analysis. The first step
             asks whether disqualification is required under the
             specific circumstances listed in RCM 902(b). If the
             answer to that question is no, the second step asks whether
             the circumstances nonetheless warrant disqualification
             based upon a reasonable appearance of bias.

United States v. Quintanilla, 56 M.J. 37, 45 (C.A.A.F. 2001). Appellant does not
ground his argument in the specific prohibitions of R.C.M. 902(b), and we discern
no such grounds for disqualification in the record.

        Instead, appellant argues the military judge’s “impartiality might reasonably
be questioned” based upon his 2007 email. R.C.M. 902(a). “[W]hen a military
judge’s impartiality is challenged on appeal, 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. Martinez, 70 M.J. at 157-58 (quoting
United States v. Burton, 52 M.J. 223, 226 (C.A.A.F. 2000)) (additional quotation
marks omitted). We review the appearance of impartiality using an objective test.
Id. at 158. In applying the above test, we utilize the standard set forth in United
States v. Kicheloe, 14 M.J. 40, 50 (C.M.A. 1982), that is, “[a]ny conduct that would
lead a reasonable [person] knowing all the circumstances to the conclusion that the




                                            5
CARLSON —ARMY 20130129

judge’s impartiality might reasonably be questioned is a basis for the judge’s
disqualification.” (quotation marks omitted).

       We conclude the military judge was not required to disqualify himself based
upon his 2007 email. First, MAJ Wolfe made those comments in his capacity as a
litigator several years before he became a military judge. “Before they arrive on the
bench . . . judges have often committed themselves on legal issues that they must
later rule upon.” Republican Party v. White, 536 U.S. 765, 779 (2002) (citing Laird
v. Tatum, 409 U.S. 824, 831-33 (1972) (mem. op.) (“describing Justice Black’s
participation in several cases construing and deciding the constitutionality of the
Fair Labor Standards Act, even though as a Senator he had been one of its principal
authors; and Chief Justice Hughes’s authorship of the opinion overruling Adkins v.
Children’s Hospital of D.C., 261 U.S. 525 . . . (1923), a case he had criticized in a
book written before his appointment to the Court ”). As then-Justice Rehnquist
noted, “[t]he fact that some of these propensities may have been publicly art iculated
prior to [becoming a judge] cannot, in my opinion, be regarded as anything more
than a random circumstance that should not by itself form a basis for
disqualification.” Laird, 409 U.S. at 836. 3 The fact that MAJ Wolfe made his
comments before his designation as a military judge weighs against a finding of
apparent bias.

       Second, MAJ Wolfe’s 2007 email was not directed at a party in the instant
case. It was directed at opposing counsel in an entirely unrelated case from years
earlier in his capacity as an advocate for the government . 4 The “traditional sense in
which” impartiality is used “guarantees a party that the judge who hears his case
will apply the law to him in the same way he applies it to the other party.”
Republican Party, 536 U.S. at 776 (emphasis added). Taken in context, MAJ
Wolfe’s email does not imply that he would favor one party over another in
appellant’s case.

3
 At the same time, we recognize that a military judge might very well need to
disqualify himself or herself under R.C.M. 902(a) for comments made before
becoming a military judge. However, it is appropriate to distinguish comments
made before reaching the bench differently than comments made while on the bench,
especially when the comments address legal issues generally and not the litigating
parties.
4
  We are mindful MAJ Wolfe made his comments as a prosecutor, and that
prosecutors have special duties distinct from ordinary attorneys. See Berger v.
United States, 295 U.S. 78, 88 (1935) (noting that prosecutors have a duty to see
“that justice shall be done” and to only “strike hard blows” and not “foul ones.”).
Although MAJ Wolfe’s comments may have been intemperate, it is difficult to
imagine any litigator – whether a prosecutor or otherwise – not having drafted
intemperately-worded correspondence at some point during a career.


                                           6
CARLSON —ARMY 20130129


       Third, the military judge’s conduct at appellant’s trial does not reflect any
apparent bias against appellant. The military judge did not abuse his discretion in
accepting appellant’s guilty pleas. In doing so, he correctly described the defense of
lack of mental responsibility and how issues relating to mental health might negate
specific intent. He also properly prohibited the government from viewing the “long-
form” R.C.M. 706 report inadvertently provided to them.

       Appellant further argues that the military judge’s earlier comments about 1LT
EW and appellant’s sentence of eight years confinement and a dishonorable
discharge demonstrate an inflexible attitude about soldiers with mental health issues.
We disagree. Although not dispositive, appellant offered and the convening
authority accepted a pretrial agreement with an eight-year cap on confinement. An
accused’s own sentence proposal can indicate its probable fairness to him. See
United States v. Hendon, 6 M.J. 171, 175 (C.M.A. 1979). The adjudged sentence
was considerably lower than the government’s request for twelve years confinement.
Further, given that the military judge’s 2007 comments were made before he was a
judge, were not directed at a party in this case, and considering his legally correct
actions at trial regarding mental health issues, we are convinced that the adjudged
sentence is not evidence of apparent bias under R.C.M. 902(a). 5

                      Unreasonable Multiplication of Charges

       Appellant alleges his two convictions under Article 134, UCMJ constitute an
unreasonable multiplication of charges with his four aggravated assault convictions
under Article 128, UCMJ. We agree in part. Appellant pleaded guilty, among other
offenses, to 1) committing an aggravated assault by shooting at SGT KL with a
loaded firearm, a dangerous weapon likely to produce death or grievous bodily harm
under Article 128, UCMJ (Specification 1 of Charge II), and 2) wrongfully and
wantonly shooting at SGT KL with a pistol, in violation of Clauses 1 and 2 of
Article 134, UCMJ (Specification 3 of Charge III). The conduct charged in these
specifications arises from the same incident. We are convinced Specification 3 of
Charge III is an unreasonable multiplication of charges with appellant’s aggravated
assault of SGT KL. R.C.M. 307(c)(4). This error does not affect the sentence
because the military judge merged that Article 134 offense with the Article 128
offenses for sentencing purposes.

      Appellant further argues his conviction for wrongfully and willfully
discharging a pistol from the window of his apartment building under such
circumstances as to endanger human life, in violation o f Clauses 1 and 2 of Article

5
 Appellant notes the military judge incorrectly stated appellant served two
deployments instead of three. Based upon the entire record, we are convinced the
military judge misspoke rather than being biased against appellant.


                                          7
CARLSON —ARMY 20130129

134, UCMJ (Specification 2 of Charge III) constitutes an unreasonable
multiplication of charges with his four aggravated assault convictions. We disagree.
While those offenses address similar criminal law interests, thos e interests are not
coterminous. Appellant admitted he fired his pistol in a housing area and stipulated
that one bullet struck a residence on the opposite side of the street. This conduct
goes beyond shooting at four people, and the government reasonably charged it as
such.

                           Dilatory Post-Trial Processing

        The convening authority took action 409 days after the sentence was
adjudged, with 24 days of delay attributable to the defense . The record in this case
consists of three volumes, and the trial transcript is 163 pages. Although we find no
due process violation in the post-trial processing of appellant’s case, we must still
review the appropriateness of the sentence in light of the unjustified dilatory post -
trial processing. UCMJ art. 66(c); United States v. Tardif, 57 M.J. 219, 224
(C.A.A.F. 2002) (“[Pursuant to Article 66(c), UCMJ, service courts are] required to
determine what findings and sentence ‘should be approved,’ based on all the facts
and circumstances reflected in the record, including the unexp lained and
unreasonable post-trial delay.”); see generally United States v. Toohey, 63 M.J. 353,
362-63 (C.A.A.F. 2006); United States v. Ney, 68 M.J. 613, 617 (Army Ct. Crim.
App. 2010); United States v. Collazo, 53 M.J. 721, 727 (Army Ct. Crim. App. 2000).

        It took 225 days to transcribe the record in this case. The government
attached to the record a memorandum explaining much of the delay, including a
shortage of court reporters, sub-standard work product from a civilian court -reporter
company, and extensive postal delays mailing matters to a defense counsel in Kuwait
and the military judge in the continental United States . Despite this explanation,
relief from this court in this case is appropriate as the delay between announcement
of sentence and action could “adversely affect the public’s perception of the fairness
and integrity of military justice system . . . .” Ney, 68 M.J. at 617. We provide
relief in our decretal paragraph.

                                    CONCLUSION

       Upon consideration of the entire record, the finding of guilty of Specification
3 of Charge III is set aside and that specification is dismissed. The remaining
findings of guilty are AFFIRMED. Given the dilatory post-trial processing, we
affirm only so much of the sentence as extends to a dishonorable discharge ,
confinement for seven years and ten months, forfeiture of all pay and allowances ,
and reduction to the grade of E-1. All rights, privileges, and property, of which
appellant has been deprived by virtue of this decision setting aside portions of the
findings are ordered restored.




                                           8
CARLSON —ARMY 20130129

    Senior Judge TOZZI and Judge CELTNIEKS concur.

                                FOR THE
                                FOR THE COURT:
                                        COURT:




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




                                  9
