UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
F.D. MITCHELL, K.M. MCDONALD, M.C. HOLIFIELD
Appellate Military Judges
UNITED STATES OF AMERICA
v.
DON W. BAILEY, JR.
SERGEANT (E-5), U.S. MARINE CORPS
NMCCA 201200370
SPECIAL COURT-MARTIAL
Sentence Adjudged: 20 April 2012.
Military Judge: LtCol Robert G. Palmer, USMC.
Convening Authority: Commanding Officer, 4th Marine Corps
District, New Cumberland, PA.
Staff Judge Advocate's Recommendation: Col E.R. Kleis,
USMC.
For Appellant: LT Carrie E. Theis, JAGC, USN.
For Appellee: LT Ann E. Dingle, JAGC, USN.
16 September 2014
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OPINION OF THE COURT
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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 special court-martial,
convicted the appellant, pursuant to his pleas, of two
specifications of failure to obey a lawful general order, in
violation of Article 92, Uniform Code of Military Justice, 10
U.S.C. § 892. The military judge sentenced the appellant to
confinement for four months, reduction to pay grade E-1, and a
bad-conduct discharge. A pretrial agreement provided that all
confinement in excess of thirty days would be suspended, but the
convening authority (CA) vacated the suspension when the
appellant violated a military protective order (MPO). As a
result, the CA approved the sentence as adjudged and, except for
the punitive discharge, ordered it executed.
This case is before us upon remand by the Court of Appeals
for the Armed Forces (CAAF). We begin with a brief recitation
of the case’s procedural posture. In his original appeal, the
appellant assigned two errors: first, that his civilian counsel
was ineffective for failing to submit clemency matters to the
CA, and second, that the CA wrongfully withdrew from the
pretrial agreement due to violation of an MPO that lacked a
valid military purpose.1 In our initial decision, United States
v. Bailey, No. 201200370, 2013 CCA LEXIS 76, unpublished op.
(N.M.Ct.Crim.App. 7 Feb 2013) (per curiam), we affirmed the
findings and sentence as approved by the CA. The appellant then
filed a motion for leave to file a supplemental assignment of
error, which we denied on 28 February 2013.
The appellant’s subsequent appeal resulted in the CAAF
setting aside our earlier opinion and returning the case to the
Judge Advocate General of the Navy for remand to this court for
further consideration after the consideration of our review in
United States v. Kish, No. 201100404, 2014 CCA LEXIS 358,
unpublished op. (N.M.Ct.Crim.App. 17 Jun 2014), which is now
completed. United States v. Bailey, 73 M.J. 54 (C.A.A.F. 2013)
(summary disposition). The appellant now raises an additional
assignment of error: that he was deprived of his constitutional
right to an impartial judge.
After carefully considering the record of trial and the
submissions of the parties, we conclude that the findings and
sentence are correct in law and fact and that no error
materially prejudicial to the substantial rights of the
appellant was committed. Arts. 59(a) and 66(c), UCMJ.
1
The second assignment of error was raised pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982).
2
Factual and Procedural Background
The appellant was serving as a recruiter when he became
intimately involved with a high school student (the student) who
was a prospective recruit applicant. He sent her sexually
explicit text messages, exchanged sexually explicit photographs,
visited her family home after-hours, and had sexual intercourse
with her. The student was 17 years old during the first
instance of sexual intercourse, and turned 18 a few days before
her relationship with the appellant was discovered.
On 29 April 2011, the appellant signed a DD Form 2873, the
MPO, which forbade him from initiating any communication with
the student for a period of three years. The MPO was issued by
the appellant's commanding officer.
In May 2012, after being released from confinement, the
appellant sent a Facebook message2 to the student. The CA
subsequently appointed an officer to inquire into whether by
doing so the appellant violated the terms of the pretrial
agreement. The appellant was represented by counsel at the
hearing, who argued that the order lacked a valid military
purpose because the appellant was no longer a recruiter and the
student was no longer a minor or a prospective recruit
applicant. The appointed officer concluded that the appellant
violated the MPO and recommended that the CA withdraw from the
pretrial agreement, which he did. The appellant requested that
the CA order a post-trial Article 39(a), UCMJ, session and
submitted a motion to the military judge who presided over his
court-martial requesting a post-trial Article 39(a) session to
address the legality of the MPO. Both the CA and military judge
denied his request. The military judge also denied the
appellant’s motion to seal portions of the record regarding the
student’s sexual behavior.
On 21 June 2012, the military judge presented a
Professional Military Education (PME) lecture to five Marine law
school students on active duty for the summer. During this
training, the military judge made several statements drawing
2
The order specifically named Facebook messaging as a prohibited form of
communication.
3
into question his impartiality. These statements were the
subject of a hearing pursuant to United States v. DuBay, 37
C.M.R. 411 (C.M.A. 1967). During this court’s review of the
Kish case following the DuBay hearing, we made detailed Findings
of Fact and Conclusions of Law which we adopt in considering the
appellant’s case. Kish, 2014 CCA LEXIS 358 at *15-39
(hereinafter DuBay Ruling). Based on the context of these
statements, this court concluded that the military judge “was
voicing not his own biases or prejudices, but instead a mindset
that he believes a junior counsel must adopt to be a tenacious
and zealous advocate.” Id. at *38. This court further
concluded that the military judge was not actually biased
against accused service members within the meaning of RULE FOR
COURTS-MARTIAL 902(b), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012
ed.). Id.
Additional facts that concern the procedural posture of
this case or are necessary to discuss the assignments of error
are incorporated below.
Discussion
We review whether a military judge’s post-trial actions
demonstrate actual or apparent bias de novo.3 “‘An accused has
the right to an impartial judge.’” United States v. Martinez,
70 M.J. 154, 157 (C.A.A.F. 2011) (quoting United States v.
Butcher, 56 M.J. 87, 90 (C.A.A.F. 2001)). There is a “strong
presumption that a [military] judge is impartial.” United
States v. Quintanilla, 56 M.J. 37, 44 (C.A.A.F. 2001). While
R.C.M. 902(b) lists various circumstances where actual bias may
require disqualification, R.C.M. 902(a) states that a military
judge shall “disqualify himself or herself in any proceeding in
which that military judge’s impartiality might reasonably be
questioned.” “The appearance standard is designed to enhance
public confidence in the integrity of the judicial system.”
3
The CAAF has applied this standard when facing questions that the appellant
could not reasonably have raised at trial. See, e.g., United States v. Rose,
71 M.J. 138, 143 (C.A.A.F. 2012) (reviewing de novo the deficient performance
and prejudice aspects of an ineffective assistance of counsel claim); United
States v. Stefan, 69 M.J. 256, 258 (C.A.A.F. 2010) (considering de novo the
qualification of a staff judge advocate to make the post-trial
recommendation).
4
Quintanilla, 56 M.J. at 45 (citing Liljeberg v. Health Service
Acquisition Corp., 486 U.S. 847, 860 (1988)).
The appellant alleges both actual and apparent bias. As
this court has already held that the military judge’s PME
statements do not support a determination of actual bias against
service member defendants, DuBay Ruling at *38, we limit our
review here to whether there was apparent bias concerning the
appellant’s case.
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.” Martinez, 70 M.J. at 157 (citation and internal
quotation marks omitted). This test may be met when there is
“‘any conduct that would lead a reasonable man knowing all the
circumstances to the conclusion that the judge’s impartiality
might reasonably be questioned.’” Id. at 158-59 (quoting United
States v. Kincheloe, 14 M.J. 40, 50 (C.M.A. 1982)).
The appellant quotes the military judge’s PME statements,
arguing that their close relationship in time to the appellant’s
court-martial indicates an actual bias on the part of the
military judge.4 Again, we limit our examination to whether this
temporal relationship supports a finding of apparent bias. We
find it does not. Absent any conduct during the court-martial
that would lead a reasonable person to question whether the
military judge’s PME comments were in fact reflective of a
personal bias, any closeness in time is meaningless.
The appellant has cited no examples at his court-martial
where the military judge acted improperly or in any way
demonstrated a lack of impartiality. A thorough reading of the
record reveals none. To the contrary, the military judge was
particularly careful to avoid hearing or seeing any inadmissible
evidence offered by the Government.5 Unlike in Kish, the
military judge did nothing at trial to bring his impartiality
4
The PME lecture occurred 72 days after the appellant’s court-martial.
5
Examples include directing the trial counsel to “shut . . . down” a
telephonic witness when she launched into a narrative on objectionable
matters, and questioning sua sponte the admissibility of several documents in
Prosecution Exhibit 6. Record at 79 and 100-02.
5
into question.6 Thus, in this case, the effect of the PME
comments is not compounded with anything at trial to reach the
level of undermining public confidence in the judicial system’s
integrity.
The appellant does cite to the punitive discharge as
evidence of bias, saying it reflects the military judge’s need
to “crush [convicted] Marines and get them out.” Appellant’s
Brief of 3 Jul 2014 at 21-22. Unless the bad-conduct discharge
is inappropriately severe, however, this argument is circular,
in effect saying that the judge’s bias toward awarding a
punitive discharge is evidenced by his awarding a punitive
discharge. Based on our review of the record, including the
appellant’s extenuation and mitigation evidence, and giving
“‘individualized consideration’ of the particular accused ‘on
the basis of the nature and seriousness of the offense and
character of the offender,’” we do not find the sentence
inappropriately severe. United States v. Snelling, 14 M.J. 267,
268 (C.M.A. 1982) (quoting United States v. Mamaluy, 27 C.M.R.
176, 180-81 (C.M.A. 1959)). We, therefore, do not conclude the
bad-conduct discharge supports a finding of apparent bias.7
As we noted in Kish, the military judge’s statements during
the PME lecture “reflect exceptionally poor judgment and invite
questions regarding judicial temperament and professionalism.”
DuBay Ruling at *38. An examination of the entire circumstances
surrounding the PME lecture, however, places the statements
properly in context. We are satisfied that any reasonable
person knowing all the circumstances of the lecture, as well as
the manner in which the military judge conducted the proceedings
in this case, would not question the integrity of the judicial
system. Unlike in Kish, there is no “nexus between the military
judge’s conduct during [Kish’s} trial and his later comments” at
the PME lecture. Kish, 2014 CCA LEXIS 358 at *13. Rather, the
contrast between the military judge’s comments and his
performance during the court-martial tends to underscore this
court’s conclusion that he was speaking during the lecture in
6
We also note that, unlike in Kish, the appellant here pleaded guilty.
7
This conclusion is further supported by the military judge’s recommendation
that the CA suspend the bad-conduct discharge.
6
character, and not in his own voice. Accordingly, we find no
apparent bias.
Original Assignments of Error
Based upon our concluding there was no apparent bias, we
find it unnecessary to revisit the military judge’s post-trial
ruling regarding the lawfulness of the MPO. For the reasons set
forth in our opinion of 7 February 2013, we find the remaining
assignments of error without merit.
Conclusion
The findings and sentence as approved by the CA are
affirmed.
For the Court
R.H. TROIDL
Clerk of Court
7