United States v. Quintanilla

IN THE CASE OF

UNITED STATES, Appellee

v.

Guillermo A. QUINTANILLA, Staff Sergeant
U.S. Army, Appellant

No. 00-0499
Crim. App. No. 9601468

United States Court of Appeals for the Armed Forces

Argued December 5, 2000

Decided October 19, 2001

EFFRON, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., and GIERKE and BAKER, JJ., joined. SULLIVAN,
S.J., filed an opinion concurring in part and dissenting in
part.

Counsel

For Appellant: Mr. Craig W. Carlson and Captain Stephanie L. Haines
(argued); Lieutenant Colonel David A. Mayfield and Major Mary M. McCord
(on brief).

For Appellee: Captain Karen J. Borgerding (argued); Lieutenant Colonel Edith
M. Rob and Major Anthony P. Nicastro (on brief).

Military Judge: Keith H. Hodges

THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. Quintanilla, No. 00-0499/AR

Judge EFFRON delivered the opinion of the Court.

INDEX

PROCEDURAL HISTORY [3]

PART A. JUDICIAL DISQUALIFICATION [5]

I. INTRODUCTION [5]

II. JUDICIAL CONDUCT [6]
A. THE RESPONSIBILITIES OF A MILITARY JUDGE [6]
B. PRODUCTION OF WITNESSES [8]
C. STANDARDS OF CONDUCT -- IN GENERAL [9]
D. IMPARTIALITY [11]
E. EX PARTE COMMUNICATIONS [14]
F. DISQUALIFICATION UNDER THE UCMJ
AND THE MANUAL FOR COURTS-MARTIAL [16]
G. PROCEDURE [18]

III. BACKGROUND [21]
A. THE RECORD OF TRIAL [21]
B. POST-TRIAL PROCESSING [82]
C. ADDITIONAL EVIDENCE CONCERNING THE CONFRONTATIONS
DISCLOSED DURING APPELLATE REVIEW [86]
D. DESCRIPTIONS OF THE CONFRONTATIONS
OUTSIDE THE RECORD OF TRIAL [87]
E. DESCRIPTION OF AN EX PARTE COMMUNICATION
BETWEEN THE MILITARY JUDGE AND TRIAL COUNSEL [100]
F. THE MILITARY JUDGE’S DECISION
TO LIMIT DISCLOSURE AT TRIAL [102]

IV. DISCUSSION [105]
A. WAIVER UNDER RCM 902(e) [106]
B. APPEARANCE OF BIAS UNDER RCM 902(a) [110]
C. REMEDY [118]

PART B. LEGAL SUFFICIENCY OF THE EVIDENCE,
INSTRUCTIONS, AND EXPERT TESTIMONY [121]

I. LEGAL SUFFICIENCY OF THE EVIDENCE SUPPORTING THE CHARGE
OF FORCIBLE SODOMY (ADDITIONAL CHARGE I) [121]
A. BACKGROUND [121]
B. DISCUSSION [122]

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II. FINDINGS INSTRUCTIONS [123]
A. BACKGROUND [123]
B. DISCUSSION [125]

III. ADMISSION OF EXPERT WITNESS TESTIMONY [127]
A. BACKGROUND [127]
B. DISCUSSION [130]

PART C. CONCLUSION [132]

PROCEDURAL HISTORY

The present case produced lengthy and complex proceedings

not only at trial, but also during post-trial consideration by

the convening authority and the Court of Criminal Appeals.

Charges against appellant were referred to a general court-

martial on April 14, 1996, and the court-martial held its first

session on May 7, 1996. The court-martial, which was composed

of officer and enlisted members, convicted appellant, contrary

to his pleas, of forcible sodomy of a child under the age of 16,

indecent assault, and indecent acts, in violation of Articles

125 and 134, Uniform Code of Military Justice, 10 USC §§ 925 and

934, respectively. On August 22, 1996, the court-martial

sentenced appellant to a bad-conduct discharge, confinement for

three years, forfeiture of $300 pay per month for 36 months, and

reduction to the lowest enlisted grade. Following various post-

trial submissions, the case was transferred to a different

convening authority, who approved these results on July 21,

1997. The litigation at the Court of Criminal Appeals was

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marked by numerous requests for extensions by both parties. On

April 17, 2000, the Court of Criminal Appeals affirmed in a

published opinion. 52 MJ 839 (2000).

Upon appellant’s petition, we granted review of the

following issues:

I. WHETHER THE MILITARY JUDGE ERRED TO THE
PREJUDICE OF APPELLANT WHEN HE
ABANDONED HIS IMPARTIAL JUDICIAL ROLE AND
THEREAFTER FAILED TO DISQUALIFY HIMSELF
SUA SPONTE, PURSUANT TO RULE FOR COURTS-
MARTIAL 902, SUBSECTIONS (a) AND (b).

II. WHETHER THE ARMY COURT OF CRIMINAL
APPEALS ERRED TO THE SUBSTANTIAL PREJUDICE
OF APPELLANT BY FINDING WAIVER AND NO
PREJUDICE WHEN THE "INTEMPERATE" MILITARY
JUDGE ABANDONED HIS IMPARTIAL JUDICIAL ROLE
AND THEREAFTER FAILED TO DISQUALIFY HIMSELF
SUA SPONTE, PURSUANT TO RULE FOR COURTS-
MARTIAL 902, SUBSECTIONS (a) AND (b).

III. WHETHER THE EVIDENCE OF RECORD WAS
LEGALLY INSUFFICIENT TO SUPPORT A FINDING OF
GUILTY AS TO THE CHARGE OF FORCIBLE SODOMY
(ADDITIONAL CHARGE I AND ITS SPECIFICATION).

IV. WHETHER THE MILITARY JUDGE'S ERRORS IN
THE FINDINGS INSTRUCTIONS CAUSED PREJUDICIAL
ERROR IN APPELLANT'S CASE.

V. WHETHER THE GOVERNMENT FAILED TO DISCLOSE
MATERIAL EXCULPATORY EVIDENCE TO THE DEFENSE
DURING APPELLANT'S COURT-MARTIAL, IN
VIOLATION OF APPELLANT'S DUE PROCESS RIGHTS
UNDER THE FIFTH AMENDMENT TO THE
CONSTITUTION.

VI. WHETHER THE MILITARY JUDGE ERRED IN
ADMITTING THE GOVERNMENT'S EXPERT WITNESS'S
TESTIMONY OVER THE DEFENSE COUNSEL'S DAUBERT
OBJECTION.

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For the reasons set forth below, we affirm the findings in part

and remand the balance of the case for further proceedings.

Part A of this opinion concerns the issue of judicial

disqualification. Part B concerns issues of legal sufficiency

of the evidence, instructions, and expert testimony.

PART A. JUDICIAL DISQUALIFICATION

I. INTRODUCTION

The first two granted issues pertain to a series of out-of-

court confrontations between the military judge and a civilian

witness, Mr. Bernstein, in which the military judge initiated

physical contact and used profanity. Although some information

about the confrontations was placed in the record through a

series of partial revelations, the military judge did not ensure

that a complete disclosure of the facts was set forth in the

record of trial. Moreover, the record does not reflect evidence

of a critical, ex parte discussion in the midst of the

proceedings between the military judge and trial counsel,

described in a post-trial memorandum prepared by the trial

counsel. Many of the details concerning the confrontations were

not revealed at trial, but were set forth in separate

investigative records compiled during the trial and immediately

thereafter, which were not made available to the defense until

several years after the trial.

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II. JUDCIAL CONDUCT

A. THE RESPONSIBILITIES OF A MILITARY JUDGE

The position of military judge was established through

amendments to the Uniform Code of Military Justice made by the

Military Justice Act of 1968. The 1968 amendments represented

an effort to “streamline court-martial procedures in line with

procedures in U.S. district courts . . . and give [military

judges] functions and powers more closely allied to those of

Federal district judges.” S. Rep. No. 90-1601, at 3 (1968). As

a result of that legislation, the military judge has “judicial

stature and authority in the courtroom” that “closely

approximate[s] that of a civilian trial judge.” 114 Cong. Rec.

30564 (1968) (remarks of Rep. Philbin).

The military judge is the presiding authority in a court-

martial and is responsible for ensuring that a fair trial is

conducted. Art. 26, UCMJ, 10 USC § 826; RCM 801(a) and

Discussion, Manual for Courts-Martial, United States (2000 ed.).

The judge has broad discretion in carrying out this

responsibility, including the authority to call and question

witnesses, hold sessions outside the presence of members, govern

the order and manner of testimony and argument, control voir

dire, rule on the admissibility of evidence and interlocutory

questions, exercise contempt power to control the proceedings,

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and, in a bench trial, adjudge findings and sentence. See,

e.g., Arts. 39(a), 46, 48, and 51, UCMJ, 10 USC §§ 839(a), 846,

848, and 851; Mil.R.Evid. 104(a), 611(a), and 614, Manual,

supra; RCM 801(a)(3) (Discussion), 802, 803, 809, 912, 922(c),

and 1007(a); see also Weiss v. United States, 510 U.S. 163, 167-

68 (1994). “In short, a military judge does the type of things

that civilian judges do.” United States v. Graf, 35 MJ 450, 457

(CMA 1992), cert. denied, 510 U.S. 1085 (1994).

There are important distinctions, however, between a

military judge and a federal civilian judge, aside from the

absence of tenure discussed in Weiss, supra. A federal civilian

judge typically has jurisdiction over all cases arising under

applicable federal law, but a military judge does not exercise

general jurisdiction over cases arising under the UCMJ. A

military judge may exercise authority only over the specific

case to which he or she has been detailed. Art. 26; Weiss,

supra at 172. In contrast with the civilian judiciary, a

military judge has no courtroom, clerk of court, or marshals.

Instead, the military judge is almost entirely dependent upon

the facilities and personnel made available by the convening

authority for the conduct of the trial. Many of the

administrative functions performed by clerks of court or U.S.

Marshals in civilian life are assigned in the military justice

system to the trial counsel, who also acts as the prosecutor.

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See RCM 502(d)(5)(Discussion); compare Fed. R. Crim. P. 17(a)

and (d).

B. PRODUCTION OF WITNESSES

The trial counsel’s responsibilities include the duty to

obtain the presence of witnesses for both the prosecution and

the defense, including the issuance of military orders for

active duty witnesses and subpoenas for civilians. See RCM

703(e). Absent a subpoena, a civilian cannot be compelled to

testify at a court-martial.

A military judge may issue a warrant of attachment to

compel the presence of a civilian witness, but “only upon

probable cause to believe that the witness was duly served with

a subpoena, that the subpoena was issued in accordance with . .

. [applicable] rules, that appropriate fees and mileage were

tendered to the witness, that the witness is material, that the

witness refused or willfully neglected to appear at the time and

place specified on the subpoena, and that no valid excuse

reasonably appears for the witness’ failure to appear.” RCM

703(e)(2)(G)(ii).

In contrast to federal civilian judges, military judges do

not have the power to treat non-compliance with a subpoena as a

contempt of court. Compare Fed. R. Crim. P. 17(g) with Art. 47,

UCMJ, 10 USC § 847. In a court-martial, if a civilian not

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subject to the UCMJ refuses to appear or testify after receiving

a subpoena, the matter is referred to the appropriate U.S.

Attorney for prosecution in the federal civilian courts. See

Art. 47; RCM 809 (Discussion).

C. STANDARDS OF CONDUCT -- IN GENERAL

This Court and the military departments have looked to the

1972 American Bar Association Code of Judicial Conduct (now the

ABA Model Code of Judicial Conduct) and the ABA Standards for

Criminal Justice (ABA Standards) for guidance on proper conduct

in criminal trials. See, e.g., United States v. Wright, 52 MJ

136, 141 (1999); United States v. Hamilton, 41 MJ 32, 39 (CMA

1994); United States v. Loving, 41 MJ 213, 327 (1994), aff'd,

517 U.S. 748 (1996). The Army has expressly adopted the ABA

Code to the extent that it does not conflict with the UCMJ,

Manual for Courts-Martial, or other rules governing courts-

martial. Para. 5-8, AR 27-10, Military Justice (20 Aug 1999).1

Canon 3 of the ABA Model Code (2000 ed.) provides that “[a]

judge shall perform the duties of judicial office impartially

and diligently.” Two sections of Canon 3 are of particular

relevance to this case: (1) Section B(4) requires a judge to

1
For a discussion of the adoption or modification of model codes and
standards by the military departments, see Francis A. Delzompo, When the
Military Judge Is No Longer Impartial: A Survey of the Law and Suggestions
for Counsel, Army Lawyer at 3 (June 1995).

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“be patient, dignified and courteous to litigants, jurors,

witnesses, lawyers, and others”; and (2) Section B(5)

establishes that “[a] judge shall not . . . by words or conduct

manifest bias or prejudice.” The commentary on the latter

section elaborates, as follows:

A judge must perform judicial duties
impartially and fairly. A judge who
manifests bias on any basis in a proceeding
impairs the fairness of the proceeding and
brings the judiciary into disrepute. Facial
expression and body language, in addition to
oral communication, can give to parties or
lawyers in the proceeding, jurors, the media
and others an appearance of judicial bias.
A judge must be alert to avoid behavior that
may be perceived as prejudicial.

The ABA Standards, which have similar provisions,2 require judges

to exercise self-restraint:

The trial judge should be the exemplar of
dignity and impartiality. The judge should
exercise restraint over his or her conduct
and utterances. The judge should suppress
personal predilections, and control his or
her temper and emotions. The judge should
not permit any person in the courtroom to
embroil him or her in conflict, and should
otherwise avoid personal conduct which tends
to demean the proceedings or to undermine
judicial authority in the courtroom. When
it becomes necessary during the trial for
the judge to comment upon the conduct of
witnesses, spectators, counsel, or others,
the judge should do so in a firm, dignified,
and restrained manner, avoiding repartee,

2
The Code of Conduct for United States Judges (1999), applicable to federal
judges and specifically adopted by this Court, see id., Chapt. 1, Intro.,
contains similar provisions regarding the maintenance of impartiality,
dignity, and decorum in proceedings. See, e.g., Canon 2A and comment, and
Canon 3A(2), (3), and comment.

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limiting comments and rulings to what is
reasonably required for the orderly progress
of the trial, and refraining from
unnecessary disparagement of persons or
issues.

Standard 6-3.4, Special Functions of the Trial Judge (2d ed.

1980).

Such standards generally are regarded as principles to

which judges should aspire and are enforced primarily through

disciplinary action and advisory opinions, rather than through

disqualification in particular cases. See Richard E. Flamm,

Judicial Disqualification § 2.6.3 at 45 (1996). In many

jurisdictions, particularly in the federal courts, actions that

violate codes of conduct do not necessarily provide a basis

either for disqualification of a judge or reversal of a judgment

unless otherwise required by applicable law. Id.

D. IMPARTIALITY

“An accused has a constitutional right to an impartial

judge.” Wright, supra, 52 MJ at 140, citing Ward v. Village of

Monroeville, 409 U.S. 57 (1972); Tumey v. Ohio, 237 U.S. 510

(1927). The impartiality of a presiding judge is crucial, for

“‘[t]he influence of the trial judge on the jury is necessarily

and properly of great weight,’ . . . and jurors are ever

watchful of the words that fall from him. Particularly in a

criminal trial, the judge’s last word is apt to be the decisive

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word.” United States v. Shackleford, 2 MJ 17, 19 (CMA 1976)

(quoting United States v. Clower, 23 USCMA 15, 18, 48 CMR 307,

310 (1974)(internal citations omitted)).

The Manual also emphasizes the importance of an impartial

judiciary, advising military judges that when carrying out their

duties in a court-martial, they “must avoid undue interference

with the parties’ presentations or the appearance of

partiality.” RCM 801(a)(3) (Discussion).3 The military judge

must exert his authority with care, so as not to give even the

appearance of bias for or against either party. Id. The

military judge is also charged with ensuring that the “dignity

and decorum of the proceedings are maintained,” as “[c]ourts-

martial should be conducted in an atmosphere which is conducive

to calm and detached deliberation and determination of

the issues presented.” RCM 801(a)(2) and Discussion. The

Manual reflects Canon 3A(3) of the Code of Conduct for United

3
Concern about impartiality and judicial temperament can be traced back to
the 1951 Manual, which states:

[The law officer] should bear in mind that his undue
interference or participation in the examination of
witnesses, or a severe attitude on his part toward
witnesses, may tend to prevent the proper presentation of
the case, or hinder the ascertainment of truth.
. . . In addressing counsel, the accused, witnesses, or the
court, he should avoid a controversial manner or tone. He
should avoid interruptions of counsel in their arguments
except to clarify his mind as to their positions, and he
should not be tempted to the unnecessary display of
learning or a premature judgement.

Para.39b(2), Manual for Courts-Martial, United States, 1951.

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States Judges (1999), which provides that “[a] judge should be

patient, dignified, respectful, and courteous to litigants,

jurors, witnesses, lawyers, and others with whom the judge deals

in an official capacity . . . .”

The paramount importance of impartiality does not mean that

the military judge should act as “simply an umpire in a contest

between the Government and accused.” United States v. Kimble,

23 USCMA 252, 254, 49 CMR 384, 386 (1974). The judge’s role is

complex, for exercising evenhanded control of the proceedings

without veering, or appearing to veer, too far to one side or

the other has been characterized by this Court as walking a

“tightrope.” Shackleford, 2 MJ at 19.

A number of cases have suggested that disqualification

applies to actions that are extra-judicial, or personal, and not

judicial in nature. See Liteky v. United States, 510 U.S. 540,

549 (1994); In re Corrugated Container Antitrust Litigation, 614

F.2d 958, 964 (5th Cir. 1980); In re Boston’s Children First, 244

F.3d 164, 168 (1st Cir. 2001). This view is reflected in the

Drafters’ Analysis of RCM 902(b), Manual, supra at A21-50. The

case law, however, does not clearly distinguish between matters

that are “extra-judicial” or “personal” and matters that are

“judicial.” Actions taken in the course of a trial may warrant

disqualification where “it can be shown that such bias was

either directed against a party or its counsel, or in favor of

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the adverse party or counsel, or that the challenged judge, in

order to compensate for the appearance of such a bias, has bent

over backwards to make it seem as though he has not acted as a

result of such bias.” Flamm, supra, § 4.3 at 113-14 (footnotes

omitted).

There is a strong presumption that a judge is impartial,

and a party seeking to demonstrate bias must overcome a high

hurdle, particularly when the alleged bias involves actions

taken in conjunction with judicial proceedings. See id.,

§ 4.6.4 at 136-37 (suggesting that only extraordinary

circumstances involving pervasive bias warrant disqualification

when the alleged bias is based upon judicial actions). The

Supreme Court, in a case involving the extra-judicial source

doctrine and the appearance of bias, has noted that remarks,

comments, or rulings of a judge do not constitute bias or

partiality, “unless they display a deep-seated favoritism or

antagonism that would make fair judgment impossible.” Liteky,

510 U.S. at 555.

E. EX PARTE COMMUNICATIONS

The Code of Conduct for United States Judges contains a

number of rules to ensure that judges steer clear of

circumstances that would demonstrate bias or the appearance of

bias. One such rule is Canon 3A(4), which provides that “[a]

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judge should accord to every person who is legally interested in

a proceeding, or the person’s lawyer, full right to be heard

according to law, and, except as authorized by law, neither

initiate nor consider ex parte communications on the merits, or

procedures affecting the merits, of a pending or impending

proceeding.” The limitation generally applies to “oral

discussions about a pending or impending proceeding between a

judge and another [person] that not all of the attorneys of

record in that proceeding are present to hear, or written

communications about such a proceeding that less than all the

attorneys of record have contemporaneously received copies of.”

Flamm, supra, § 14.1 at 406 (footnotes omitted).

Under circumstances not pertinent to the present appeal,

certain ex parte communications are permissible. Id., § 14.3.1

at 410. Moreover, in light of the potential for incidental

communications that involve non-controversial matters such as

routine scheduling discussions, the fact of an ex parte

communication does not mandate disqualification. Id.; see also

United States v. Alis, 47 MJ 817, 824 (A.F.Ct.Crim.App. 1998)

(citing United States v. Chavira, 25 MJ 705 (ACMR 1987)(“When

circumstances require, ex parte communications for scheduling or

administrative purposes that do not deal with substantive issues

are authorized provided no party gains a tactical advantage as a

result . . . and the judge makes provision promptly to notify

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all other parties of the substance of the communication.”)). A

decision on disqualification will “depend on the nature of the

communication; the circumstances under which it was made; what

the judge did as a result of the ex parte communication; whether

it adversely affected a party who has standing to complain;

whether the complaining party may have consented to the

communication being made ex parte, and, if so, whether the judge

solicited such consent; whether the party who claims to have

been adversely affected by the ex parte communication objected

in a timely manner; and whether the party seeking

disqualification properly preserved its objection.” Flamm,

supra, § 14.3.1 at 411-12 (footnotes omitted).

F. DISQUALIFICATION UNDER THE UCMJ
AND THE MANUAL FOR COURTS-MARTIAL

The Uniform Code of Military Justice provides that “[n]o

person is eligible to act as military judge in a case if he is

the accuser or a witness for the prosecution or has acted as

investigating officer or a counsel in the same case.” Art.

26(d). The President has promulgated additional

disqualification standards in RCM 902, which parallel the

statute governing disqualification of federal civilian judges,

28 USC § 455. See Art. 36(a), UCMJ, 10 USC § 836(a)

(presidential rulemaking authority); Drafters’ Analysis of RCM

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902, Manual, supra at A21-50. Our Court considers the standards

developed in the federal civilian courts, as well as our own

case law, when addressing disqualification issues arising under

RCM 902. See, e.g., Wright, 52 MJ at 140-41.

RCM 902 divides the grounds for disqualification into two

categories – specific circumstances connoting actual bias and

the appearance of bias. RCM 902(b) lists five specific

circumstances requiring disqualification, including two that are

pertinent to the present appeal.

RCM 902(b)(1), which provides for disqualification “[w]here

the military judge has a personal bias or prejudice concerning a

party or personal knowledge of disputed evidentiary facts,”

applies the same substantive standard as its civilian

counterpart, 28 USC § 455(b)(1). RCM 902(b)(3) provides for

disqualification “[w]here the military judge has been or will be

a witness in the same case.” See Art. 26(d). The Drafters’

Analysis notes that “[t]he purpose of this section is analogous

to that of 28 USC § 455(b)(3).” Manual, supra at A21-51.

RCM 902(a), which addresses the appearance of bias,

requires disqualification of a judge when “that military judge’s

impartiality might reasonably be questioned.” This is the same

standard as applied under the federal civilian statute, 28 USC

§ 455(a).

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Under subsection (a), disqualification is required “in any

proceeding in which [the] military judge’s impartiality might

reasonably be questioned,” even though the evidence does not

establish actual bias. The appearance standard is designed to

enhance public confidence in the integrity of the judicial

system. Liljeberg v. Health Services Acquisition Corp., 486

U.S. 847, 860 (1988). The rule also serves to reassure the

parties as to the fairness of the proceedings, because the line

between bias in appearance and in reality may be so thin as to

be indiscernible. Flamm, supra, § 5.4.2 at 151; see also

Liteky, 510 U.S. at 565 (Kennedy, J., concurring in the

judgment)(“In matters of ethics, appearance and reality often

converge as one.”).

In short, RCM 902, like 28 USC § 455, 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.

G. PROCEDURE

As a matter of procedure, counsel may move for the

disqualification of a military judge, but military judges also

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have a continuing duty to recuse themselves if any of the bases

of disqualification under RCM 902 develop. RCM 902(d)(1). Both

parties are permitted to question the military judge and to

present evidence concerning the possible ground for

disqualification prior to the judge’s decision. RCM 902(d)(2).

Of all the grounds for disqualification in RCM 902, only the

appearance of bias may be waived, RCM 902(a), after full

disclosure of the basis on the record. RCM 902(e).

In federal civilian courts, parties may raise the recusal

issue by motion, but the judge also has a sua sponte duty to

determine whether he or she should continue to preside over a

proceeding. Davis v. Board of School Commissioners of Mobile

County, 517 F.2d 1044, 1051 (5th Cir. 1975)(28 USC § 455 is self-

enforcing on the part of the judge; it may be asserted by party

by motion in trial court, through assignment of error on appeal,

by interlocutory appeal, or by mandamus). Some circuits have

expressed the opinion that, after disclosing information that

might form a basis for disqualification under § 455(a), the

judge should make his own determination on the issue without

asking counsel to express their views on the judge’s ability to

sit. See United States v. Kelly, 888 F.2d 732, 746-47 (11th Cir.

1989)(holding, in accord with other circuits, that a federal

judge should make his own decision on disqualification because

“[t]he too frequent practice of advising counsel of a possible

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conflict, and asking counsel to indicate their approval of a

judge’s remaining in a particular case is fraught with potential

coercive elements which make this practice undesirable.”).

Although the federal statute does not detail the procedure

for obtaining a waiver of disqualification from the parties,

early and full disclosure by the judge in circumstances free

from any subtle coercion generally is considered to be an

essential predicate to acceptance of waiver. See United States

v. Nobel, 696 F.2d 231, 236-37 (3rd Cir. 1982). A procedure for

obtaining waiver is set forth in Canon 3D of the Code of Conduct

for United States Judges, which provides:

A judge disqualified by the terms of Canon
3C(1), except in the circumstances
specifically set out in subsections (a)
through (e), may, instead of withdrawing
from the proceeding, disclose on the record
the basis of his disqualification. If the
parties and their lawyers after such
disclosure and an opportunity to confer
outside of the presence of the judge, all
agree in writing or on the record that the
judge should not be disqualified, and the
judge is then willing to participate, the
judge may participate in the proceeding.
The agreement shall be incorporated in the
record of the proceeding.

The Compendium of Selected Opinions to the Code of Conduct for

United States Judges provides a further gloss on obtaining

waiver of disqualification for an appearance of impropriety:

The decision as to whether there is or is
not a reasonable appearance of impropriety
is a decision to be made by the judge;

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counsel or parties should not be consulted
on that issue. If the judge determines that
there is a reasonable appearance of
impropriety, the judge must either recuse,
or invoke the Canon 3D procedure in full.

§ 3.8-2[1](c). Although the procedure in Canon 3D is not

required under 28 USC § 455(e), courts have cited the Canon with

approval. See Noble, supra.

III. BACKGROUND

This section provides a detailed account of the events at

the time of trial and during appellate review to reflect the

evolution of the disqualification issue in this case. Because

the military judge did not make a comprehensive disclosure of

the pertinent events, the following not only sets forth

information from the record of trial, but also the differing

recollections of the participants as contained in material

developed after the trial.

A. THE RECORD OF TRIAL

1. THE CHARGED OFFENSES

a. Charges of Sexual Impropriety With Three Civilian Teenagers

Appellant was charged with offenses arising from sexual

contact with five individuals: two military members and three

civilian teenagers. The charges involving the civilian

teenagers provide the context for the unusual events that

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transpired during the lengthy trial, post-trial, and appellate

proceedings in this case.

Appellant was divorced and lived off-post with his teenage

son. During the two-year period covering the charged offenses,

several other soldiers and civilians lived in the house at

various times, including JB, a 19-year-old high school student.

Subsequently, JB moved out of appellant’s home and lived with

his employer, Mr. Bernstein, who owned a chain of pizza parlors.

JB informed Mr. Bernstein that appellant had forcibly performed

oral sodomy on him while the two were sitting in appellant’s

parked car.

Mr. Bernstein also employed CS, who was a friend of JB.

During an employment interview, CS told Mr. Bernstein that

appellant had indecently assaulted him after getting him drunk.

When Mr. Bernstein subsequently learned that RW, JB’s 15-year-

old half-brother, had spent time with appellant, he became

suspicious that appellant might have molested RW as well. Mr.

Bernstein informed RW’s father, Master Sergeant (MSG) W, who

questioned his son. RW told MSG W that appellant had sexually

molested him at appellant’s house. Mr. Bernstein did not speak

directly to RW about these allegations. The allegations

regarding all three civilian teenagers were brought to the

attention of military authorities by Mr. Bernstein.

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b. The Charges Involving Military Personnel

The remaining charges involved sexual contact with two

members of the armed forces at various times during 1993 through

1995. Private (PVT) B, a new member of appellant’s battalion,

arrived when most of the unit was deployed. At appellant’s

suggestion, PVT B joined appellant off-post for a game of pool,

and then went to appellant’s house. PVT B accepted appellant’s

invitation to spend the night at appellant’s house. PVT B

testified that shortly after retiring for the evening, appellant

touched PVT B’s genitals. PVT B then departed and obtained a

ride back to Fort Hood, where he reported the incident to the

staff duty noncommissioned officer (NCO).

The other offenses involved CJ, who was on active duty at

the time of the incidents but had left military service at the

time of trial. CJ’s testimony covered two separate incidents of

sexual contact, one in the barracks and one at a party in

appellant’s home. CJ testified that he consumed a large

quantity of beer, fell asleep on the bedroom floor, and woke up

to find appellant touching his genital area.

Neither of the victims had any contact with Mr. Bernstein

prior to trial. Appellant was convicted of the charge involving

PVT B. He was also convicted of one of the specifications

involving CJ and acquitted of the other.

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2. OVERVIEW

At trial, the defense strategy focused primarily on Mr.

Bernstein’s role, suggesting that the reports of abuse were not

credible and that he had manipulated the teenagers into making

false charges. The trial was marked by conflicts between Mr.

Bernstein and the military judge, including two out-of-court

confrontations. The out-of-court confrontations between the

military judge and Mr. Bernstein not only affected procedural

aspects of the trial, but also became the focus of evidence

introduced for consideration by the members during trial on the

merits.

3. PROCEEDINGS PRIOR TO THE CONFRONTATIONS

Appellant was arraigned on May 7, 1996, and pretrial

motions and related proceedings were considered on August 10 and

19. A variety of circumstances delayed commencement of trial on

the merits, including a lengthy, defense-requested continuance

to accommodate the schedules of both civilian and military

defense counsel.

After additional pretrial matters were considered on the

morning of August 20, trial on the merits began with opening

statements. During the opening statements, the prosecution

summarized expected testimony on each charge and indicated that

expert testimony would be offered to explain delayed reporting

24
United States v. Quintanilla, No. 00-0499/AR

in terms of the reluctance of young victims to report sexual

abuse. The defense counsel’s opening statement focused on

potential inconsistencies in the anticipated testimony of

prosecution witnesses, implying that at least some of the

witnesses were manipulated by Mr. Bernstein, who was described

by defense counsel as “the key to the whole thing.”

After the opening statements and prior to commencement of

the prosecution’s case on the merits, the military judge

conducted a routine session under Article 39(a), UCMJ, 10 USC

§ 839(a), regarding expert witnesses. During the course of that

discussion, he expressed concern that trial counsel had not

given the bailiff a list of prosecution witnesses showing the

order in which they would appear. He admonished the trial

counsel to have his witnesses organized so that the court-

martial would “not have to wait 10 minutes between witnesses.”

When the court reconvened early in the afternoon on August

20, the prosecution called its first witness -- CS -- one of the

civilians named as a victim in the charges. Defense counsel

immediately requested a brief delay for purposes of interviewing

the witness. After determining that the defense previously had

the opportunity to interview the witness at the pretrial

investigation under Article 32, UCMJ, 10 USC § 832, the military

judge expressed concern about further delay, noting that

“witnesses in cases like this do tend to be a little reluctant,

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a little frail; and we had them waiting all morning.” Defense

counsel withdrew his request for a delay, and the prosecution

began its examination of CS.

CS testified that appellant encountered him at school and

offered him a ride home. He added that instead of going to CS’s

home, they went to appellant’s house, where appellant served him

beer, showed pornographic movies, and initiated sexual activity

without CS’s consent. CS further testified that he did not tell

his parents or friends about this because he was embarrassed.

He stated that he eventually told his employer, Mr.

Bernstein, what had transpired after learning that JB, a fellow

employee, “had been attacked” by appellant. In his cross-

examination, defense counsel explored inconsistencies between

the testimony presented in court and at the Article 32 hearing,

and focused on Mr. Bernstein’s role in bringing the allegations

to the attention of CS’s father and the prosecution.

4. THE DELAY IN BRINGING JB TO THE WITNESS STAND

After CS completed his testimony, the prosecution called

its second witness, JB -- another of the teenage civilians named

in the charges as a victim. The record of trial contains a

cryptic description about what then transpired.

Initially, the record indicates some difficulty with

respect to the witness:

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United States v. Quintanilla, No. 00-0499/AR

TC: We call J* B*.

[Specialist Bennett, legal specialist, withdrew from the
courtroom, and reentered shortly thereafter and conferred
with the trial counsel.]4

MJ: Tell Mr. B* to come in; tell him I said so.

[Specialist Cooks, legal specialist, withdrew from the
courtroom. Captain Henry, seated in the spectator section
withdrew from the courtroom.]5 [Time lapse.]

MJ: Okay. I've got a premonition. Gentlemen, please go
into the deliberation room. We'll be getting to you
shortly.

TC: Sir--sir, if I may. If we get him, I'd like to hear
him testify.

MJ: I understand that. Would you go get him please?

TC: Yes, sir.

MJ: Thank you.

[Captain Schwind6 withdrew from the courtroom.]

[Time lapse.]

The military judge called a brief recess at 2:28 p.m. Four

minutes later, he convened an Article 39(a) session and

indicated that the difficulty in obtaining JB’s appearance was

related to Mr. Bernstein.

MJ: This Article 39(a) session is called to order. All
are present as before. The members are absent. Captain
Schwind is absent.

4
The bracketed material in italics is from the record of trial.
5
CPT Henry, a spectator in the courtroom, was the Chief of Military Justice
of the 1st Cavalry Division.
6
The Trial Counsel (TC).

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Mr. Bernstein, who I have met, is highly upset. He
believes he was treated in an improper way. I could not
have a conversation with Mr. Bernstein because I had this
premonition that I would revisit everything I was about to
say. I invited Mr. Bernstein in. I believe I called for
the MP's to come here, is that correct?

CPT Henry: [From spectator section.] Yes, sir. They're
on their way.

MJ: Very well. Okay.

Now, I want you Captain Christensen,7 to kick out-- Captain
Schwind, sit down with Mr. Bernstein, tell him we're going
to have a trial; tell him if he leaves that I may dismiss
the charges and all this work is for naught.

[Captain Schwind reentered the courtroom.]

MJ: Was Mr. Bernstein going to come in?

TC: Sir, he's attempting to call Colonel Naccarato.8

MJ: Everybody stay here.

[Stepped down from the judge's bench.]

Cooks, you're my witness. Put your ears on.

[The military judge and Specialist Cooks withdrew from the
courtroom.]

Following this announcement, a second brief recess began at 2:33

p.m. Four minutes later, the Article 39(a) session was

reconvened, and the military judge vaguely referred to the

difficulties encountered in procuring JB’s appearance:

7
The Assistant Trial Counsel (ATC).
8
The Staff Judge Advocate of III Corps, the headquarters above the 1st Cavalry
Division in the chain of command.

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[The military judge and Specialist Cooks reentered the
courtroom.]

MJ: Come on in, Mr.--what's his name?

TC: [JB]

MJ: [JB] . . ., come on in and have a seat.

[The witness entered the courtroom and took the witness
stand.]

MJ: Let the record reflect that I went out with--are we on
the record? Article 39(a) called to order. All are
present as before. The members are absent. Mr. [JB] is on
the witness stand.

Specialist Cooks--
[Assistant trial counsel stood.]

Talk to me.

ATC: I just wanted to let you know, sir, Captain Schwind
is present now.

MJ: Okay. Well, we can't have everything. Okay.
Specialist Cooks and I went out to talk to Mr. Bernstein.
Mr. Bernstein is apparently a good friend of . . . . [JB].
He is very protective of . . . [JB].

* * *

. . . . Mr. Bernstein is eager to avoid problems. He
believes that--and what sent him off, so the record is
straight: Apparently, he believes that a captain, who he
believes his first word begins with an "F" and ends with a
"G" had spoken inappropriately to him--and I think he's
referring to you, Captain Brown9--and Mr. Bernstein is all
upset.

DC: What?

CDC: Sir, for the record, he's talking--he was in here,
sir.

9
Detailed Defense Counsel (DC).

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United States v. Quintanilla, No. 00-0499/AR

CPT Henry: [From the spectator section.] He's talking
about me, sir.

MJ: Oh, he's talking about Captain Henry?

CPT Henry: Yes, sir.

MJ: Oh, great. I'm sorry. I thought it was the other F-
captain. In any event, Mr. Bernstein is all upset. And
what I did was: I went and I reminded Mr. Bernstein that
we weren't calling him as a witness at this point; we were
calling . . . [JB]; and that, we were going to have a
trial. And that, all I wanted . . . [JB] to do was come in
and testify, and testify truthfully, and give . . . [JB] an
opportunity to put this incident behind him in one way or
another this week. And that, if people all wanted to go
home there were no subpoenas, but that would just cause the
government to issue subpoenas next week, and this trial
would continue in a few more weeks.
. . . [JB], my recollection is you decided that you wanted
to come in and put this behind you today and not worry
about it later. Is that right?

[JB]: Yes--yes, sir.

MJ: Okay. And with that, are there any questions?

TC: No, sir.

CDC: No, sir.

MJ: Specialist Cooks, did I leave anything important out?

SPC COOKS: [From spectator section.] No, sir.

MJ: All right. Anything else?

TC: No, sir.

Contrary to the impression that this account provided a complete

description of events, this portion of the record omitted

significant details as to what transpired outside the courtroom.

See, e.g., Sections III.A.8., III.A.20., and III.D., infra.

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5. JB’S TESTIMONY ON THE MERITS

After trial resumed, JB testified that he had rented a room

in appellant’s house, that appellant had initiated non-

consensual sexual contact with him, that he had been too

embarrassed to tell his parents or friends, that he subsequently

moved into the house of his employer, Mr. Bernstein, and that he

eventually told Mr. Bernstein what had transpired with

appellant. On cross-examination, the defense employed an

approach similar to that used with CS, emphasizing

contradictions between his trial testimony and his previous

statements and highlighting the role of Mr. Bernstein in

bringing his allegations to the attention of the Army.

6. THE RECESS PRIOR TO MR. BERNSTEIN’S TESTIMONY

Following JB’s testimony, an Article 39(a) session was

convened at 4:09 p.m. to consider an evidentiary matter. Two

minutes later, the military judge abruptly announced, “We’re in

recess.” The recess lasted for 39 minutes.

The record at that point does not reflect two important

developments. First, the military judge learned that Mr.

Bernstein had made a complaint about him, and the complaint had

come to the attention of the judge’s superior within the

judiciary. Aspects of this development eventually would be

placed on the record. See Section III.A.11., infra. Second,

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the military judge and the trial counsel had an ex parte

conversation in which the trial counsel convinced the military

judge to delay placing information on the record concerning the

out-of-court confrontations between the military judge and Mr.

Bernstein. The fact of the conversation was never on the record

and was not revealed to defense counsel until long after trial,

when the case was under appellate review. See Section III.E.,

infra.

7. MR. BERNSTEIN’S TESTIMONY ON THE MERITS

Mr. Bernstein, who was called to the stand at 4:50 p.m.,

testified about the nature of his personal and employment

relationship with the civilian victims, as well his role in

bringing the allegations against appellant to the attention of

military and civilian law enforcement authorities.

8. MR. BERNSTEIN’S ARTICLE 39(A) TESTIMONY
CONCERNING THE CONFRONTATIONS WITH THE MILITARY JUDGE

When Mr. Bernstein concluded his testimony on the merits,

he remained on the stand while the military judge called an

Article 39(a) session to discuss his out-of-court confrontations

with Mr. Bernstein. The military judge elected not to provide a

narrative of what he knew, see Section III.F., infra, but chose

instead to explore the matter through an examination of Mr.

Bernstein:

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United States v. Quintanilla, No. 00-0499/AR

MJ: ... Mr. Bernstein, I received a call from my superior
that you called him or someone else, and told my office--or
told him that I assaulted you by pushing you--

WIT: Yes, sir.

MJ: And referred to you as a "m*****f*****."

WIT: Yes, sir.

MJ: Okay. Would you please tell the parties here, in case
they have questions of me or you concerning that.

WIT: Your Honor did take me and [demonstrated] went like
that to me, and used vulgarity, "What the f*** do you want
me to do?" and told me that if I did not go in the
courtroom that he would go ahead and put me in lockup. And
I was not subpoenaed by this court at all.

The military judge then attempted to obtain Mr. Bernstein’s

agreement with his own understanding of what had transpired:

MJ: Okay. Now, this began because you stopped--or were
interfering with the government in calling [JB] to court,
is that correct?

WIT: [JB] was not subpoenaed to court, sir.

MJ: Okay. Not my question. Did you interfere with the
prosecutor's attempt to have [JB] brought into court--

WIT: Negative.

MJ: --to provide--

WIT: No, sir.

MJ: Please. My question, so we're clear on the answer:
Did you interfere with--when the prosecution went out to
get [JB] did you attempt to intervene in any way?

WIT: No, sir.

The military judge turned to the issue of whether he had

assaulted Mr. Bernstein:

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United States v. Quintanilla, No. 00-0499/AR

MJ: Very well. When I patted you on the shoulder, did you
consider that an assault? That is, an offensive--

WIT: Yes, sir.

MJ: You did?

WIT: Yes, sir.

MJ: As an offensive touching?

WIT: Yes, sir.

MJ: Okay. Was Specialist Cooks--where is he?

SPC Bennett: [From spectator section.] He's gone, sir.

MJ: Say again?

SPC Bennett: He had to go, sir. He had to go to class.

MJ: Tell Specialist Cooks he's a witness.
Specialist Cooks, the 24-year-old, heavy set, African
American gentleman, was present, was he not?

WIT: Yes, sir.

MJ: Very well.

Following that colloquy, the military judge discussed his

use of profanity:

MJ: . . . Okay. Now, I did use profanity. I admit that.

WIT: Yes, sir.

MJ: And--

WIT: In front of--in front of a 20-year-old child.

MJ: A--yeah, the 20-year-old child who is the part owner
of the corporation?

WIT: Yes, sir.

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United States v. Quintanilla, No. 00-0499/AR

MJ: Okay. Now, at the time that I used profanity, you
were in the process of telling me that you were--or you had
or were getting General Schwartz10 on the phone, is that
correct?

WIT: Yes, sir.

MJ: And I told you that I didn't care--I think my words
were "give a f*** what General--"

WIT: You didn't give a f***.

MJ: About General Schwartz, right?

WIT: Yes, sir.

MJ: And I told you that because--I said that I was a judge
and it was my job not to care what commanders think.

WIT: Yes, sir.

MJ: So, was it more than that?

WIT: You did threaten me, yes, sir.

MJ: Okay. Well, we’ll get to that. And at that point you
looked at [JB]; you said, “I like this man," referring to
me, "because he uses that F-word."

WIT: Yes, sir.

MJ: So, you told [JB], that 20-year-old child, that you
liked me because I, like you, use the F-word?

WIT: I use "f***" a lot, yes, sir.

MJ: Okay. Good.

WIT: But not in the--but not in the word [sic] that you
used it in.

10
Commander of III Corps, the next step in the chain of command above Major
General LaPorte, who had convened the court-martial as commander of the 1st
Cavalry Division. Both organizations were headquartered at Fort Hood, Texas.

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United States v. Quintanilla, No. 00-0499/AR

Subsequently, the military judge and Mr. Bernstein

discussed the military judge’s threat to hold Mr. Bernstein in

contempt of court:

MJ: And the threat was that you advised me that you were
not in court and you were not a soldier, is that correct?

WIT: Yes, sir. And I also did--and I also did, to add
this, I also did advise you that I was not under any
subpoena whatsoever; that I could leave at anytime.

MJ: Correct. And I informed you that if you interfered
with the court that you needed--

WIT: That you would hold me in contempt of court.

MJ: Correct. And that was the threat?

WIT: Yes, sir. I was not--I was not inside your chambers,
sir.

MJ: Okay. But the--

WIT: Okay--

MJ: But the threat was if you interfered with the
proceedings, which included getting, . . . what's-his-face
. . . into the courtroom--

WIT: [JB], sir.

MJ: [JB]. That I would hold you in court--in contempt, is
that correct?

WIT: Yes, sir.

After the military judge completed his discussion with Mr.

Bernstein, he asked whether the parties had any questions. At

that point, a spectator, Mr. Hewitt, interrupted to note that he

was Mr. Bernstein’s attorney. The military judge called a

recess so that Mr. Hewitt could speak with Mr. Bernstein.

36
United States v. Quintanilla, No. 00-0499/AR

Following the recess, the military judge reconvened the

Article 39(a) session, with Mr. Bernstein on the witness stand.

The military judge began with an explanation for the manner in

which he was proceeding:

MJ: Okay. Let me--let me explain to you why I'm doing
this. I'm doing this because this is information which
possibly might affect how the parties want to proceed in
this trial, and what they want to do and how they want to
do it. That's why I'm doing this. I don't care--I had my
last promotion 3 years ago. Okay. When they don't want me
on the bench anymore, I got a job, and I know when to
retire. I'm not doing this for Keith Hodges. I'm doing
this because I think justice requires it.

Trial counsel then questioned Mr. Bernstein, focusing on

Bernstein’s role on the day before trial and the morning of

trial in terms of convincing a reluctant JB to testify. Trial

counsel did not ask questions concerning the circumstances

surrounding the out-of-court confrontation between Mr. Bernstein

and the military judge, except for the following brief exchange:

TC: Were you concerned about what might happen to him in
this courtroom?

WIT: Yes, sir.

TC: You think that had something to do with what went on
back there in my office and out there?

WIT: Yes, sir.

The defense counsel asked about the origins of the

controversy between Mr. Bernstein and the military judge:

CDC: And because I wasn't actually a party to all of it, I
guess my question is, what was the problem? Was it that

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United States v. Quintanilla, No. 00-0499/AR

you didn't want him to testify or was it that he didn't
want to testify and that you convinced him or was it--

WIT: Sir, he--he really was pretty frightened, sir, about
testifying. He did not want to be in the second line-up.
He wanted to be the third line-up, you know, to prepare
himself, sir. And may I add something to this?

CDC: Yes.

WIT: I think I just overreacted, and I don't think the
Honor--the judge or me--I highly apologize to the judge,
and highly apologize that--it was just out of basically
frustration a little bit, Your Honor.

MJ: Okay.

WIT: And--

MJ: I'm not looking for apologies. I mean, I appreciate
it and it's accepted; however, I'm looking for facts and
not anybody to roll over on anything.

WIT: Yes, sir.

CDC: You mean you were threatening to leave the building?

WIT: [JB] was.

CDC: [JB] was?

WIT: Yes, sir.

CDC: And he was threatening to leave through you?

WIT: [JB] did not want to actually be here today. He did
not want to face Quintanilla. He did not want to look at
Mr. Quintanilla. And I told [JB] that this is something
that is--it's his duty.

CDC: Well, I was basically--and the reason I'm asking is
the whole--the whole thing started, from my understanding
is--is because you--you said, "We're out of here. We're
leaving." And they said, "You can't go. You gotta stay."
And you got upset about that. Is that--is that somewhat
accurate?

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United States v. Quintanilla, No. 00-0499/AR

WIT: I care about [JB] a lot, you know, and [JB] is a very
personal person if you understand what I'm saying. And he-
-he did not want to testify at this present time against
William Quintanilla because he did not want to look at Mr.
Quintanilla.

CDC: And did he tell the government that he wanted to
leave and did not want to testify--and the government being
the trial counsel people--or did you tell them that?

WIT: No, he told them that.

CDC: Okay. And--and I guess I'm confused about your--so,
he's saying--did he say he was leaving or did you say you
were leaving?

WIT: I told him to go ahead and stay. I--it was in--it's
in his best interest to go ahead and get it over with. Go
ahead and face it and get it over with.

CDC: And how did the controversy then all begin to where
the judge actually had to leave the courtroom to get you?
I mean--

WIT: Over--it was honestly over just frustration. It was
just--I was just frustrated from being here for so long,
and that was my--that was my mistake.

CDC: So, your testimony is that you weren't going to leave
the building, you were going to stay here? You weren't
telling anyone you were leaving? You were going to stay
here?

WIT: Well, I was not under subpoena, you know, and I [sic]
wondering when I was going to be called up, you know. And
I was going to leave the building and get something to eat.

CDC: So, you just said, "I'm going to get something to eat
and I'll be back"?

WIT: Basically. You know--

CDC: And that's what started all of this?

WIT: Yes, sir. And it was--

MJ: Next point, Craig.

39
United States v. Quintanilla, No. 00-0499/AR

WIT: Say again, sir?

MJ: Next point, Mr. Carlson.

CDC: No further questions.

When the parties completed their questioning, the military

judge provided the following summary:

MJ: For those who may possibly read this record later,
let's back it up; and how at this point somebody may
understand some of the unusual happenings on the record
earlier.

After the testimony of [CS], the government called [JB]--
listen, government, because you got a role in this--called
[JB]. I saw the bailiff come in, and heard her say, "He
doesn't want to testify." I mean, I saw that. Heard it
and saw it. I sent a trial counsel out, and after waiting
for that crab to return to the pot after several minutes,
and he didn't come back. And I remind the parties that
this morning we had a long false start--it took us until
11:00. And then the first thing that happened when [CS]
got on the stand was there was a side-bar where the defense
asked to interview [CS]. So, it was 1:00--12:30 when we
were finally going to hear some evidence. And now, I see,
you know, people taking another unnecessary recess to find
a witness. I'm told that there is a problem with getting
[JB] to come out. Realizing that [JB] is apparently young,
and the dynamics of this case, I went out in my uniform,
not robe, to find out what happened. At that time, I took
a prosecutor--who was who?

TC: Myself, sir.

MJ: Schwind. And I took Mr. Carlson. When I got there,
quite frankly, Mr. Bernstein was hanging off the rafters.
Okay. And he calmed down. He was very upset about some
captain who had mistreated him. I assumed it was Captain
Brown, but later turned out it was Captain Henry, had said
something or done something--it was a fair assumption,
Captain Brown--had said something or done something that
Mr. Bernstein was riled up. It was my goal at that point
to move the trial along. I told Mr. Bernstein, "Don't
worry about the captain." I turned to [JB] and said,

40
United States v. Quintanilla, No. 00-0499/AR

"[JB], all this stuff about subpoenas and where you're
going to be and not going to be, the point is we can finish
this trial this week and this will be behind you or the
government will have a delay, they'll issue subpoenas, and
we'll be back in here next month. What do you want to do,
[JB]?" JB said, "I want to testify." I said, "Good.
Let's roll." Now, the part where you were present, is that
accurate--

WIT: Yes, sir.

MJ: --what I just described?

WIT: Yes, sir.

MJ: All right. You got any spins or twists you want to
put on it?

WIT: No animosity at all, sir.

MJ: Well, how about--

WIT: No.

MJ: Forget animosity--

WIT: No. No spins. Nothing, sir.

MJ: Okay. Came back in--came back in, put on the robe,
sat down, and again prosecutors were leaving like rats on a
sinking ship going in the area of the witness room. I
didn't want anymore lawyers to leave the courtroom because
I was having trouble keeping track of them. I was ready to
put transponders on them. But thinking that I needed a
witness would be a good idea, I took trusty Specialist
Cooks with me into the room. At that point, he was on the
telephone either calling Colonel Naccarato--later told
General Schwartz. Mr. Bernstein and I had no problems
understanding each other before. I informed Mr. Bernstein
that I didn't work for General Schwartz; I didn't give a
f*** what General Schwartz did or said, trying to emphasize
that point. And judges don't like to have people think
that commanders tell judges what to do. I'm not trying to
flaunt it, it's just that I can't do my job if I work for
commanders because they be [sic] the convening authority.
Mr. Bernstein was still hanging off the rafters in my view.

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I used my touchy-feely style, I tapped him--thumped him on
the chest with an open hand, man--mano a mano,--

WIT: Kind of like a father.

MJ: --like I did to Captain Brown and said, "Calm down,
let's get a hold of it. We're going to trial. Let's
roll." And the only thing that Mr. Bernstein said to me
was, "Please don't let them beat up on [JB]." And I told
him that I was in charge of the proceedings and that I
would allow the examination to go. Now factually, is that
accurate or inaccurate?

WIT: Yes, sir.

MJ: All right. Any questions? Captain Schwind, Captain
Carlson--Mr. Carlson, all you others who were present in
and out, would anybody like to add or detract from those
facts?

CDC: None from the defense.

TC: No, Your Honor.

MJ: Okay. Mr. Bernstein, do you have anything to add?

WIT: No, sir, I apologize.

MJ: Okay. It's not a problem. It happens. That's why
trials are dynamic processes. Let's take the remainder of
the recess. We're in recess.

Subsequent developments during and after trial would

demonstrate both that Mr. Bernstein had not abandoned the belief

that he had been assaulted and that there was more to the

incident than had been placed on the record. See Section

III.D., infra.

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9. CONTINUATION OF TRIAL ON THE MERITS
DURING THE EVENING OF AUGUST 20

At first, the trial proceeded as if the confrontations

between the military judge and Mr. Bernstein no longer were a

matter of concern. The prosecution resumed its case on the

merits with the testimony of the third alleged civilian victim,

RW, who stated that he had been sexually molested by appellant,

that he had not told anyone about it because he was embarrassed,

and that he only disclosed it after being questioned by his

father. Upon cross-examination by defense counsel, RW said even

though he had not told anyone of the incident prior to being

confronted by his father, it was his understanding that Mr.

Bernstein had told his father that he had been molested. RW

acknowledged that Mr. Bernstein was present at his house on the

day his father confronted him about the molestation. Both

parties asked numerous questions about when RW learned that Mr.

Bernstein was the source of his father’s information. RW’s

answers were inconclusive.

The prosecution continued its case with testimony from RW’s

father, who was also the stepfather of another civilian victim,

JB. Much of the testimony focused on Mr. Bernstein’s role in

urging the father to determine whether RW had been molested, and

his role in pursuing the investigation. Following his

testimony, the court-martial recessed for the night at 8:10 p.m.

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10. DEFENSE COUNSEL’S ALLEGATION OF JUDICIAL BIAS

On the following day, August 21, trial resumed with the

prosecution presenting the testimony of Private First Class

(PFC) B, the alleged victim in one of the indecent assault

charges. PFC B testified that he had spent an evening at

appellant’s house, stayed overnight, and had been grabbed in the

crotch by appellant in the middle of the night. The defense, in

its cross-examination, attempted to raise doubts as to whether

the circumstances demonstrated an indecent touching, and to also

suggest the possibility of consent.

During the cross-examination, the military judge expressed

concern about the pace of defense counsel’s approach, which he

perceived as redundant. When defense counsel began to explore

the nature of PFC B’s relationship with women, the trial counsel

objected that the questions were not relevant. The military

judge responded with a message to trial counsel:

MJ: If he wants to ask that line of
questions, I'm going to go ahead and let
him. I think that--I think that--just let
him go ahead. Sit down, Captain Schwind.
This is one of those objections you don't
want to make.

In reaction to the military judge’s comments, defense

counsel immediately asked for an Article 39(a) session, at which

he asserted that the military judge acted in a “partial” manner

by telling the trial counsel, in front of the members, not to

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pursue a particular line of objections. The military judge

first responded that he had overruled trial counsel’s objection,

and then set forth a lengthy critique of the defense theory with

respect to the cross-examination of PFC B. When it became

apparent that defense counsel remained concerned, the military

judge offered a defense of his conduct of the trial, including a

reference to his encounter with Mr. Bernstein:

MJ: Mr. Carlson, I want you to think for
just a moment about this entire trial.

CDC: Yes, sir.

MJ: What is the only time that I've gotten
on the lawyers in this case? Truly. I
mean, nitpicky stuff, but what's the only
thing I've really gotten on the lawyers
about? Efficiency.

CDC: Yes, sir.

MJ: Okay. I told you guys why you needed a
reason at 9:00 when we put the members
together. I told you when a witness takes
the stand and before the first question is
asked people want another reason to talk for
an hour. The fact that I want to move this
trial along got me the great pleasure of
having Mr. Bernstein slander my reputation
in the military. I beat on Captain Schwind
to pick up the pace and move on, and I've
done that with you, but less frequently.
Okay.

CDC: Yes, sir, and I will.

The military judge returned to defense counsel’s concern about

his comments during trial, explaining that he had overruled

trial counsel’s relevance objection, even though it might have

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been sustained at the time, indicating that defense counsel

subsequently could have established relevance. The record

reflects that before defense counsel could respond, trial

counsel apparently felt obligated to interject a comment in

support of the defense position:

.... I can see part of Mr. Carlson's point,
sir, is that your response to me seemed to
express an opinion as to the worth or the
nonworth of his objection--or my objection
allowing him to testify. I think that many
have been presented.

The military judge apparently realized that an issue had been

raised concerning an appearance of bias, and he engaged in a

further colloquy with defense counsel:

MJ: Okay. Is that your point? Do you
think that--do you think I'm sending
pheromones?

CDC: Yes, sir.

MJ: I'll fix that.

Defense counsel noted that while the pace of his

questioning may have amounted to “slow crawling,” he was nearing

the completion of his examination of PFC B. The military judge,

who viewed the defense concern as a recusal motion, announced

that he would not recuse himself, but that he would instruct the

members not to take any of his remarks about the pace of the

proceedings as “an indication of the worth of anybody’s case.”

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11. THE MILITARY JUDGE SUGGESTS
POST-TRIAL DISQUALIFICATION OF THE CONVENING AUTHORITY

At the conclusion of the Article 39(a) session, there was a

15-minute recess, which apparently included an out-of-court

conference involving the military judge and counsel for the

parties under RCM 802. When the Article 39(a) session was

reconvened, the military judge referred to the RCM 802 session

but did not set forth a clear description of the out-of-court

session on the record. The record indicates that Mr.

Bernstein’s complaint to the commanding general continued to be

a matter of concern, although the record does not clearly

describe the nature of the complaint or how it came to the

attention of the military judge. The military judge, however,

used the occasion to explain that he had decided not to recuse

himself, and that he thought the convening authority should

disqualify himself from post-trial action in the case:

MJ: I don't think this is on the record,
let's do it quickly. I was informed during
802 that we held in the courtroom that
apparently--at what point in the proceedings
did Mr. Bernstein talk to Colonel Lisowski11
and/or the commanding general?

TC: I guess after he testified, sir.

DC: Yesterday evening, sir.

11
The record does not identify “Colonel” Lisowski or his role at that point.
The post-trial proceedings indicate Lieutenant Colonel Lisowski was the Staff
Judge Advocate of the commander of the 1st Cavalary Division, the convening
authority.

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MJ: The offer has been made to me for me to
talk to Colonel Lisowski to know the nature
of the conversations. While initially that
appeared to be an attractive thing, I've
decided that I don't want to hear about what
Mr. Bernstein might have said because it
might have involved me, and I don't want
anybody to think that I care what the
general says. And if I don't know what the
general thinks, then I can't be influenced
by what the general thinks. I've made my
rulings. If I thought for a moment what Mr.
Bernstein had done with regard to me
affected my ability to try this case fairly,
I would have recused myself. And I did not.
However, I think it's a good point that the
government should seriously consider in its
post-trial actions if we get to a post-trial
action, that a convening authority other
that the current convening authority be
used. And there's a law on that, and I'll
leave it there.

The military judge did not explain why the circumstances would

require disqualification of the convening authority but not the

military judge.

The military judge then asked if there was “[a]ny other

matter” the parties wanted to pursue on that subject. Defense

counsel suggested that the military defense counsel might have

some knowledge about the subject:

CDC: Sir, we would--eventually we would
like to put in on the record. I'm not sure
if this is the point to put this on the
record, but we do--Captain Brown does have
knowledge of what happened, and I think it's
important for it to be on the record at some
point.

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MJ: Is it important for it to be on the
record for purposes of the merits or
purposes of post-trial?

CDC: Post-trial, sir. And I don't know--

MJ: Okay. . . .

The military judge, however, decided to not follow-up, so the

issue was never explored on the record.

12. FURTHER TESTIMONY ABOUT MR. BERNSTEIN’S REACTION TO THE
CONFRONTATION WITH THE MILITARY JUDGE

The military judge changed the subject, which led to

consideration of whether Mr. Bernstein had attempted to

influence the testimony of any of the witnesses in the waiting

room:

MJ: . . .Well, let's do it this way, is
there anything that you are aware of right
now that's been done in this case on the
Bernstein situation that affects Sergeant
Quintanilla's right or ability to get a fair
trial?

CDC: Well, sir, actually there may be, and
it's not something that we've just talked
about, but it's come to my attention that in
the last 5 minutes that he has talked to our
witnesses yesterday while they were waiting
for this trial.

MJ: Mr. Bernstein did?

CDC: Yes, sir. Telling them that my client
is guilty. Now, I told Captain Brown before
I wanted to make an issue of this that I was
going to ask for time to go interview these
people to find out what was said because I
do not want to mislead the court or misstate
something that was actually said.

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At that point, PFC B was on the witness stand, and the

military judge decided to question him about Bernstein’s

interaction with the other witnesses. PFC B described Bernstein

as “annoying” and told the military judge that Bernstein “was

mostly bitching about [demonstrated] you hit him on the chest.”

PFC B stated that Bernstein had not affected his testimony.

The military judge questioned PFC B further about the

nature of Bernstein’s remarks, and this led to further testimony

about the confrontation between Bernstein and the military

judge:

MJ: Was Mr. Bernstein talking to you
personally or was he carping out loud in a
crowd in which you were present?

WIT: He was just talking out loud, sir.

MJ: Okay. So, was he talking to you or you
were just in a group to whoever he was
talking?

WIT: He was basically talking out loud
within a couple of people that were sitting
in there, sir.

MJ: Okay. And about when was this?

WIT: It was right after you came out and
spoke to him, sir, and the MP's showed up,
sir.

MJ: Okay. What did he say?

WIT: Basically, he was [expletive] about it
being [expletive] that he had to stay here,
sir. That he's being held on Fort Hood as a
captive.

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MJ: What else did he say?

WIT: He was going to call up General
Schwartz, sir, or whatever.

MJ: What else did he say?

WIT: Not really much else other than like
you hit him on the shoulder, and you hit
him.

MJ: Yeah. What else did he say? We've
already squared that away. What else did he
say?

WIT: Captain Henry is an [expletive].

MJ: You like saying that, didn't you, B*?
Okay. What else did he say?

WIT: Nothing other than that that I really
paid attention to. I was kind of laughing
at him, sir.

MJ: Why did you think he was annoying?

WIT: Because he was bragging about he was a
business owner in Killeen, and "I ran for
city council," and blah, blah, blah. Like I
really give [an expletive], sir.

MJ: Any questions of [PFC B]?

CDC: No, sir.

TC: No, sir.

The military judge ended the Article 39(a) session shortly

thereafter. When the members returned to the courtroom, the

military judge endeavored to address the defense concern that

his remarks had evidenced a bias against the defense by

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instructing the members and by apologizing to counsel for the

tenor of his remarks.

13. THE HEIGHTENED FOCUS ON THE ROLE OF MR. BERNSTEIN

Following the military judge’s remarks, the trial continued

with the balance of PFC B’s testimony and testimony from the

other military victim, CJ, who had since left the Army. The

military judge asked if there were “[a]ny questions of [CJ]

concerning any contact he might have had with Mr. B?” Trial

counsel responded that he had no questions. In response to

questions from defense counsel, CJ noted that he had been in a

room with Bernstein and other witnesses, that Bernstein had made

a number of remarks which may have been directed at everyone in

the room, that Bernstein had referred to appellant as a

pedophile, and that in an apparent reference to appellant’s

guilt, Bernstein had said: “You guys put him away.”

The military judge suggested that it would be appropriate

for defense counsel to call other persons to testify as to

whether Bernstein had influenced witnesses outside the

courtroom. Trial counsel disagreed. Without resolving the

matter, the military judge began his own examination of CJ in an

effort to further explore whether his testimony had been

influenced by Bernstein. In the course of his responses, CJ

described Bernstein as a person who “[doesn’t] think before he

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talks.” When the military judge asked him to explain his

opinion, CJ referred to circumstances apparently involving the

confrontation between Bernstein and the military judge:

MJ: Well, let's handle that issue first.
Do you care what Mr. Bernstein's opinion is
or what he wants you to do in this case?

WIT: I don't care. I really don't care
about him. I think he's just a pretty loud
fellow.

TC: He turned everybody off--

MJ: Wait. Wait. How would you describe
his personality style? How did he affect
you?

WIT: I don't think he handles himself very
well.

MJ: Why do you say that?

WIT: I think he just--I don't think he
thinks before he talks. I think he just
reacts.

MJ: Why do you believe that?

WIT: Well, during the course of the day--
well, we--the guy--me and the other people
that were in the room off and on caught some
things here and there. I didn't really know
what was going on. I believe there was an
incident with you that he was--that he at
one time was getting really loud about. I
remember him saying he's going to get
himself a $5000 lawyer, which didn't seem
practical at all to me.

MJ: There are $5000 lawyers in Killeen.

WIT: I believe it. I not--I just--

MJ: Okay. Go ahead.

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WIT: I didn't think his situation warranted
that at all. I thought he was just
reacting.

MJ: And all the ones in this town that can
charge $5000 or more are worth it. But go
ahead.

WIT: As far as his personality goes, like I
said, I just think he's loud and he doesn't-
-he doesn't think before he speaks. He just
reacts. However his emotions are going, he
just says--just talks without thinking.

After further questioning, the military judge summarized [CJ’s]

testimony about Mr. Bernstein’s conduct in front of the other

witnesses in terms of a “desire or hope . . . that everybody

[would] kind of hear it in a blow hard kind of way.”

When the military judge continued to pursue various

theories as to the motivation for Mr. Bernstein’s actions, trial

counsel stated that he would object to any testimony on the

merits along those lines. The military judge rejected trial

counsel’s argument, emphasizing that “Mr. Bernstein is the hub

with respect to the allegations involving the three people who

have never been soldiers.”

The military judge then indicated that he was concerned

about Bernstein’s credibility, noting: “I watched Mr. Bernstein

come in here with respect to me to tell me one thing and when

we’re all over, it was something completely else.” Although the

record does not identify the specific incident covered by the

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military judge’s remarks, it would appear that in the context of

their out-of-court confrontations, he was referring to the

contrast between Mr. Bernstein’s apologetic approach in court

and his subsequent allegations that he had been assaulted by the

military judge.

The military judge ruled that the defense would have the

opportunity to challenge Mr. Bernstein’s motive and bias, and

that the defense could call witnesses to testify before the

members on the merits with respect to Mr. Bernstein’s out-of-

court comments about appellant in front of the other witnesses.

Trial counsel noted that Mr. Bernstein would be required to

testify again if called, because a subpoena had been issued to

him, although there might be some difficulty in obtaining his

appearance. In response, the military judge emphasized Mr.

Bernstein’s central role in the trial:

MJ: Happy to sign a warrant of attachment
if suddenly [Mr. Bernstein’s business]
becomes more important than this court-
martial. I'm not trying to be vindictive,
I'm just trying to say that he's made
himself an issue in this case, and if he--
and he's completely told us a thousand times
"I don't have a subpoena. I don't have a
subpoena," when, in fact, he does have a
subpoena. And I want this trial--we owe it
to Sergeant Quintanilla and the others that
we have this trial and it have closure.

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14. THE MILITARY JUDGE QUESTIONS
THE SPECTATORS ABOUT MR. BERNSTEIN

After an exchange with counsel regarding a separate

evidentiary issue, the military judge changed the subject and

began to question the spectators in the courtroom about Mr.

Bernstein, without calling them to the stand to present sworn

testimony. First, he apparently noticed that Mr. Emerick, the

Government’s expert witness, wanted to say something:

MJ: . . . Mr. Emerick, who has patiently--
the government expert who has patiently been
waiting, has a question.

MR. EMERICK: [From the spectator section.]
Well, on this Bernstein thing, I--he
attempted to engage me in a conversation
yesterday too.

MJ: Would you like to come up here and join
us please. Well, I'll tell you--wait.
Wait. We're killing the reporter. Has he--
have you heard anything that he said or did
with you was it anymore substantial or any
different than what's been described so far
since you've been here all along.

MR. EMERICK: No, I just told him that it's
inappropriate for us to be talking and left.

MJ: Great. I think that some of the
lawyers might want to talk to you during the
recess. And I think that your answer was a
good one. Thank you.12

12
When Mr. Emerick subsequently testified on the merits, defense counsel
asked him whether Mr. Bernstein had approached him on the previous day. Mr.
Emerick testified that he had told Mr. Bernstein that he was a witness and
did not want to talk to him about the case.

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For reasons that are not apparent in the record, the military

judge then decided to engage another spectator, CPT Henry, in a

further discussion of the initial incident concerning

Bernstein’s role in JB’s reluctance to testify:

MJ: . . . Captain Henry, your name has here
[sic]. Why don't you just give me a
Reader's Digest version of what contract
[sic] with Mr. Bernstein apparently was the
precipitous event that caused him to prevent
the calling of [JB].

CPT HENRY: [From the spectator section.]
Yes, sir. After Specialist Cooks went in to
get the one witness, and I can't remember
the young man's name--

MJ: The short guy with the bad haircut?

CPT HENRY: Yes, sir.

MJ: All right.

CPT HENRY: Captain Schwind asked me to go
get him. I went into the office, closed
door, I had Specialist Cooks with me. [CS]
was in the office there and I asked the
young man to come with me, that he's been
called to the witness chair.

* * *

CPT HENRY: And I asked him to come with me,
that Captain Schwind had called him to the
witness stand and it's his turn. And Mr.
Bernstein said, "No, he's not going
anywhere." I asked him who he was. He
replied that he was an employer. And I
said, "Well, sir, it's my understanding he
is the next witness and he has to come with
me and take the stand." He said, "No, he's
not going anywhere, in fact, we're leaving."
I said, "No, sir, it's my understanding you
have a subpoena--or he has a subpoena." He

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said, "Wrong, that's not true." I said,
"Well, sir, Captain Schwind would like for
him to take the stand." And he started
yelling and sticking his finger in my face.
And I said "Well, sir--"

MJ: Did he assault you, Captain Henry?

CPT HENRY: No, sir.

MJ: All right. Go ahead.

CPT HENRY: After that I said, "Sir, are you
his guardian or parent?" And he said--
start--just kept on yelling. I said, "Well,
sir, you have no say in this right now."
And that's when Captain Schwind came out and
asked me to leave.

MJ: All right. Now, to your knowledge is
this the first that I knew of the events
that you had with Mr. Bernstein?

CPT HENRY: Yes, sir.

MJ: Was it your impression that he was
attempting to prevent the calling of [JB]?

CPT HENRY: At that particular point, yes,
sir, I think he didn't like the order that
it was going in.

MJ: Oh, well. And what was [JB’s] level of
emotion in dealing with you?

CPT HENRY: [JB] didn't say a word--

MJ: Oh, I'm sorry. What was Mr.
Bernstein's level of emotion?

CPT HENRY: Very agitated. Angry. Yelling.
Excited.

MJ: Questions for Captain Henry while he's
here?

TC: No, sir.

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CDC: No, sir.

15. THE PROSECUTIONS RECUSAL MOTION, ALLEGING THAT THE MILITARY
JUDGE WAS SEEKING TO FORCE AN ACQUITTAL IN ORDER TO AVOID A
VERBATIM RECORD

Later in the Article 39(a) session, the military judge

considered a defense objection to the proposed testimony of two

prosecution witnesses to the effect that appellant engaged in

other conduct similar to his conduct with the two military

victims. In the course of considering whether evidence of this

uncharged misconduct was admissible, the prosecution argued that

it was important for the members to hear from witnesses who had

not been contacted by Mr. Bernstein, “[because] the defense has

. . . made an issue of the fact that th[e] witnesses . . . are

all lying and they are all collaborating among each other . . .

maybe with Bill Bernstein, who knows?”

During consideration of the issue, defense counsel stated,

“I haven’t made an issue of Bill Bernstein aside from . . . I

want the . . . people to know he was telling people, but-–.”

The military judge cut him off, noting that the testimony at

issue concerned the alleged military victims, not the three

alleged civilian victims. Eventually, the military judge

sustained the defense objection, but noted that the evidence

would be admissible if the defense opened the door.

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Shortly after the military judge ruled in favor of the

defense, the prosecution moved that the military judge recuse

himself from the trial. The trial counsel argued that the

defense had opened the door to admissibility of the uncharged

misconduct, but that the military judge would not let the

evidence in “because of a side agreement with the defense

counsel he’s not going to talk about it any more.” Trial

counsel apparently believed that the military judge was

unwilling to adhere to his previous decision to admit the

evidence if the defense opened the door, and asserted: “I don’t

believe, sir, we’re getting a fair opportunity to present our

case here today.”

The exchange between trial counsel and the military judge

quickly moved from discussion of an evidentiary objection into a

motion for recusal:

MJ: Want me to recuse myself?

TC: Yes, sir, we do.

MJ: Okay. And, the basis is?

TC: The basis is that right now your
relationship with Mr. Carlson is obviously -
- we don’t know what’s going on, sir.

Trial counsel then attempted to explain why he believed the

military judge was not fairly applying the rules concerning

uncharged misconduct. The military judge responded:

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My relationship with Mr. Carlson is simply
that I’ve seen Mr. Carlson in court. He’s a
hard fighter, but he’s a fair fighter. If
you want to recuse me for that basis, that’s
fine. I’ll tell you, I think the same of
you.

The military judge attempted to explain why he disagreed

with trial counsel’s position on the uncharged misconduct issue,

which led to the following exchange:

TC: Again, sir, you told us earlier that if
the facts change we get a different ruling
as well.

MJ: Okay. Then maybe you don't get it,
Captain Schwind, they ain't changed enough
for me.

TC: Sir, then in that case we request you
recuse yourself on the basis that we feel
you do not want a verbatim transcript of
this trial made.

MJ: That's so ridiculous I'm not even going
to address it. Do you have another basis?

TC: No, sir.

MJ: I've been accused of many things, but
being a gutless judge is not one of them.

TC: Sir, the way you talk to Mr. Carlson--
we were going over this--we really believe
that the government, if we still have the
burden and I think we still do, we're not
getting a fair shot at putting on the
evidence to prove that up. And, attempt to
prove, beyond a reasonable doubt, each and
every element that you still instruct and
that the defense has put in issue with their
cross-examination.

MJ: If I were your rater or commanding
officer I would send you home for the

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weekend to write me a tome on 403. It
appears to me you don't understand it so
therefore I don't want to discuss it.
Overruled. Sit down. Call the members.

Faced with a decision by the military judge to not recuse

himself, the trial counsel sought a different forum for

addressing his evidentiary objection, which led to the following

colloquy with the military judge:

TC: We request leave to consider a
government appeal, sir.

MJ: Oh, really?

TC: Yes, sir.

MJ: You--What [sic] a second. Stop. Okay.

TC: All we need is two hours, sir.

MJ: Pardon me?

TC: We got to have a conference with some
people. Two hours to make that decision one
way or another on the particular ruling on
the 404 and 413 evidence . . . .

MJ: Two hours. So, I should send the jury
home for two hours?

TC: Yes, sir.

MJ: Okay. And, the appeal would be based
upon what, the 403 ruling?

TC: The 403 ruling and your decision not to
recuse yourself, as well, from this trial.

The military judge decided to continue the discussion with

one of the spectators, Captain Henry, rather than counsel:

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MJ: Captain Henry, have you talked to GAD13
about this?

CPT HENRY: [Seated behind the bar.] No. Sir.

MJ: Okay. Let’s take 10 minutes. You call
the chief of GAD and you say the military
judge made a rule to keep out uncharged
misconduct based upon Rule 403. Do you want
to play 403 at all? Call them, see what
happens. Ten minutes.

These remarks were followed by a 30-minute recess. When

the Article 39(a) session reconvened, the military judge began

with an apparent reference to an off-the-record discussion, the

meaning of which is not entirely clear from the record:

My understanding is that you haven’t had
sufficient time because of availability to
keep her, so now to get a preliminary call
what you want to do [sic].

The military judge asked the parties for their views as to

whether the proceedings should continue while he considered

whether his rulings were subject to an appeal by the Government

under RCM 908(a). Both parties agreed that the trial should

proceed while the military judge took the government appeal

issue under advisement.

The prosecution proceeded with its case on the merits.

After several witnesses testified, trial counsel asked for an

Article 39(a) session. Before acting on that request, the

military judge addressed the spectators and asked CPT Henry

13
The Government Appellate Division. See Art. 70, UCMJ, 10 USC § 870.

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whether there would be an interlocutory government appeal. CPT

Henry provided an ambiguous response, indicating either that a

decision had not been made or that an interlocutory appeal would

not be filed. At that point, the military judge convened an

Article 39(a) session, at which he reiterated his decision to

sustain the defense objection to presentation of uncharged

misconduct. After considering several other matters, the

military judge granted defense counsel’s request for a brief

recess prior to presentation of the defense case on the merits.

16. THE MILITARY JUDGE’S WARNING TO THE MEMBERS
TO AVOID READING STORIES IN THE LOCAL MEDIA

Before the defense could proceed with its case, the

military judge called an Article 39(a) session to advise the

parties of the latest developments concerning Mr. Bernstein:

I have been reliably informed that Mr.
Bernstein has gone to the newspapers to tell
his story of my assaulted [sic] behavior
toward him. And, secondly, he has filed a
complaint this morning with the military
police, charging me with assault and I don’t
think I need a lawyer [chuckles]. In any
case, if I did, it would cost less than
$5,000.

Without asking for a reaction from the parties, the military

judge changed the subject and initiated a discussion concerning

the presentation of the defense on the merits. Defense counsel,

however, remained concerned about Mr. Bernstein:

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CDC: There’s allegedly an article going to
be published in the Killeen paper now.

MJ: I will tell the members not to read the
newspaper.

It will be about me. The members, to my
knowledge, know nothing about Mr. Bernstein
and Captain Henry and Colonel Hodges.

CDC: Okay, sir. I just want to make sure --
that’s fine.

MJ: I’ll make it very generic.

CDC: Okay. Yes, sir.

When the members assembled, the military judge provided a

generic instruction to avoid exposure to the local news, which

was supplemented upon request from defense counsel:

MJ: . . . I instruct you that you will not
listen to the local news tonight. Just do
something else. And, that you will not read
any local paper, that means not only the
Killeen paper, but Austin, Temple, Belton.
I do that only because there is the
possibility, however slight, that somebody
might put something in the paper. I have no
idea if or what they might say, but I just
want to make sure that all sides get a fair
trial. Any questions about that? So just
suck it up, tell you[r] wives or loved ones
or you[r] dog or whoever brings the paper to
you that just put it aside and you’ll pick
it up later on. Alright. Thank you. Mr.
Carlson, is there any evidence the defense
would like to present?

CDC: Sir, yes, but in your instruction you
were going to indicate, I believe that it
has nothing to do with the trial or the
people in the trial --

MJ: Right.

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CDC: -- beside from yourself.

MJ: Right. It’s purely prophylactic; that
is, protective. In the event that somebody
wants to write an article about Mr. Carlson
or about me or about Captain Henry or about
somebody else, that you might possibly
relate to this trial. Just -- I don’t know
if they will, I’m just guessing that there
is that possibility. When a trial goes more
than a day or 2, people sniff around and
they might write articles and I just don’t
want you to have to wrestle with that.

17. THE DEFENSE CASE FOCUSES ON MR. BERNSTEIN’S
INFLUENCE ON THE WITNESSES

The first defense witness was Sergeant (SGT) Melton, who

had lived with appellant for a period of time. Defense

counsel’s questioning immediately focussed on whether Mr.

Bernstein had attempted to influence the testimony of the

Government’s witnesses in the waiting room during trial:

Q. [Defense Counsel:] Did he [Bernstein]
tell them [the witnesses in the waiting
room] to respond different to the government
as opposed to when I ask them questions?

A. [Sergeant Melton] Yes sir, he said, “When
you [defense counsel] ask questions, simply
say yes or no, and when the government
ask[s] questions go in depth in the answer,”
sir.

Q. Did he tell them how their demeanor
should look as they come in the courtroom
and whether they should face the jury or how
they should look?

A. He told them, “Be serious and solemn and
not to smile,” sir.

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Trial counsel’s cross-examination of SGT Melton sought to

demonstrate that Mr. Bernstein had been speaking generally to

all the witnesses and that the remarks had not influenced

Melton.

After the defense finished presenting its case, the

prosecution sought to revisit the military judge’s ruling

excluding evidence of uncharged misconduct. The military judge,

during an Article 39(a) session, declined to change his view

that the evidence in question was unduly prejudicial under Mil.

R. Evid. 403. The prosecution also sought to have the uncharged

misconduct admitted on the grounds that the prosecution needed

to rebut the defense theory that the witnesses had been tainted

through their out-of-court contact with Mr. Bernstein. In the

course of that argument, the prosecution emphasized that Mr.

Bernstein’s conduct outside the courtroom had become a central

issue in the case: “The defense has gone with this theory, not

just weakly put it out there, they have gone with this hard,

bringing the whole trial s[a]ga that went on outside this

courtroom. They relied on that theory heavily.” The military

judge countered that the Government could rely on the testimony

of the two military victims of the charged misconduct, who had

not been associated with Bernstein, and did not need further

evidence in the form of uncharged misconduct to rebut the

defense theory that Mr. Bernstein had influenced the testimony

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of the witnesses. After further discussion regarding

instructions, the military judge recessed the court-martial for

the evening.

18. THE COURT-MARTIAL CONSIDERS PRESS COVERAGE OF THE
CONFRONTATIONS BETWEEN THE MILITARY JUDGE AND MR. BERNSTEIN

Shortly after the court-martial reconvened on the morning

of August 22, the military judge noted that defense counsel had

“an issue with respect to a newspaper article this morning,” and

directed trial counsel to include an article from the Killeen

Daily Herald in the record as an appellate exhibit. The

article, headlined “Killeen Man Files Complaint Against Judge,”

stated that Mr. Bernstein had filed a “simple assault” complaint

against the military judge. Based upon information from the

installation’s public affairs office, the article summarized the

proceedings, noted that the military judge had “put the incident

on the record,” and observed that “[n]o motions were filed”

concerning the incident. The article also stated that “military

authorities are investigating the incident” and attributed the

following to Mr. Bernstein:

“I filed the complaint because I feel the
gentleman had no right to touch me.”
Bernstein said Wednesday. He said the
incident occurred when he, along with
another witness, were waiting outside the
courtroom.

Bernstein said Hodges came from the
courtroom trying to “verbally force one of

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the witnesses to testify.” Bernstein said
he entered into the discussion when the
military judge turned to him and “smacked me
on the left hand side of my chest four
times.”

During the incident, Bernstein said the
judge informed him to “stay out of this.
This is not your business.” Bernstein also
alleges that the judge used profanity.

19. DEFENSE SEEKS TO IDENTIFY A RELATIONSHIP BETWEEN THE
CONFRONTATIONS AND THE MERITS OF THE CHARGES AGAINST APPELLANT

The defense counsel then presented a summary of his

understanding as to what had transpired between the military

judge and Mr. Bernstein at trial. Although it appears that he

was summarizing what the military judge previously had placed on

the record during the Article 39(a) session with Mr. Bernstein

on the previous day, it is not clear which parts of the defense

counsel’s description were based upon the military judge’s

summary and which parts were based upon defense counsel’s

observations. Defense counsel did not clearly articulate his

purpose in raising the issue, and the military judge did not

clarify the information or the purpose for which it was being

offered. It appears, however, that he was laying the groundwork

for subsequent introduction of evidence that would contrast the

information in the record of trial about the incident with Mr.

Bernstein’s comments to the press. Although not articulated at

this point in the record, it appears that the defense wanted to

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discredit Mr. Bernstein by showing his penchant for

exaggeration.

20. THE CONFRONTATIONS BETWEEN THE MILITARY JUDGE AND
MR. BERNSTEIN BECOME THE SUBJECT OF A STIPULATION
FOR CONSIDERATION BY THE MEMBERS ON THE MERITS

Defense counsel told the military judge that he had

approached the Government with a proposed stipulation of fact

regarding the incident, “so we can get on with our closing and

get this trial in to the jury.” Trial counsel advised the

military judge that the prosecution declined to enter into the

stipulation because it viewed the information as irrelevant.

The military judge then focused on Mr. Bernstein’s relationship

to the charged offenses:

MJ: Do you know where your Achilles’ heel is
in this case?

TC: Oh, yes, sir.

MJ: Where do you think it is?

TC: It is wherever Mr. Bernstein is this
morning sir.

[The parties chuckle.]

MJ: That’s right. And, the problem is that
Mr. Bernstein . . . is . . . a control
freak. . . . The point is, is that he
controls [JB]. Whether it’s improperly or
not, is not important to me because that’s
decided by the members.

The military judge added that if live testimony was needed, CPT

Henry could testify that Mr. Bernstein “went ballistic” and

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“attempted to intercede” when he learned that the testimony

would not proceed in the way Bernstein anticipated. Trial

counsel said that he would stipulate to that fact, but would not

stipulate to Mr. Bernstein’s actions after he testified in terms

of complaining to the command, the MPs, and the press. The

military judge replied that he viewed Mr. Bernstein’s behavior

as relevant to showing “the depth in his control” over JB. The

military judge added that information was relevant to show the

“depth of his commitment” to “his cause, whatever it may be”

because it would demonstrate that

after apologizing in court and saying, “It
didn’t happen,” or words to that effect, and
schmoozing everybody in the courtroom, he
left that night, talked to General LaPorte -
- I am told -- What he said, I don’t know --
and that night or the following day went to
talk to either the PAO or the press . . . .

The military judge’s comments led to the following exchange with

trial counsel:

MJ: [D]oesn’t that show you a guy who is
committed to whatever his agenda is?

TC: Well, not necessarily sir. He’s
committed to getting back at you and for
touching him . . . and offending him in that
matter --

MJ: -- You can argue that --

Trial counsel added that Mr. Bernstein’s comments to the MPs and

the press concerning his confrontation with the military judge

were not relevant to

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what the accused did to a close friend of
his, [JB]. There's no connection there
between that. He got upset because of what
happened to him, and he was willing to
follow through even after taking the stand
and saying he was ---

The military judge interrupted trial counsel’s argument, began

to read the proposed stipulation, and inquired about Mr.

Bernstein’s availability to testify. When it appeared that

there might be some delay in obtaining Mr. Bernstein’s

testimony, the military judge asked defense counsel whether he

would prefer to have Mr. Bernstein return to the stand. Defense

counsel replied that he would be glad to have Mr. Bernstein

testify, but indicated that he would prefer to proceed by

stipulation rather than to have a delay in which the members

might “forget the testimony they heard.”

After declaring that “Bernstein is inextricably linked to

some major issues in this case,” the military judge asked trial

counsel if the prosecution was willing to stipulate. Trial

counsel reiterated the prosecution’s unwillingness to stipulate.

The military judge made it clear that Mr. Bernstein’s activities

were relevant, and that in the absence of a stipulation, Mr.

Bernstein would have to testify.

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21. THE PROSECUTION IDENTIFIES THE MILITARY JUDGE
AS A WITNESS ON THE MERITS

Trial counsel responded by making it clear that if the

confrontation between the military judge and Mr. Bernstein was

relevant to the merits of the case, the military judge could

become a witness in the proceedings. The military judge reacted

by suggesting that if there was no stipulation, there might be a

mistrial that could preclude further proceedings:

MJ: [I]f you call me, you get to try this
case all over again, and you get to figure
out whether or not you want to wrestle with
double jeopardy. What do you want to do,
Captain Schwind?

TC: Sir, if they put Mr. Bernstein on, and
he recalls events differently we’ll have --
to try to point the finger at you.

MJ: Then I’m sure you’ll stipulate. You can
do what you want to, Captain Schwind. I’m
going to let you roll this dice any way you
want to. Just like we did on the appeal
issue the other day, I just want you to
think it through.

22. THE MILTIARY JUDGE CONSIDERS DISQUALIFICATION
BUT DECIDES NOT TO RECUSE HIMSELF

In a further discussion about Mr. Bernstein’s complaints to

the command and the press, the military judge emphasized that

his confrontations with Bernstein were relevant because “the

degree to which the three non-soldier alleged victims are under

the control of anyone -- you, the defense, Mr. Bernstein,

anybody else -- is an issue in this case. It’s obvious to

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everybody in this courtroom.” Trial counsel disagreed with the

theory that Bernstein’s complaints about the military judge were

relevant to the merits of the case. The military judge

responded:

The trial is whether or not the three young
men are telling the truth, as well as Mr.
Bernstein. And, a question of whether or
not those young men are telling the truth,
that is, their credibility, depends on who
was driving the train.

Trial counsel then reformulated his objection under Mil. R.

Evid. 403, contending that even if Bernstein’s complaints were

minimally relevant, evidence about those matters would “confuse

the issues, mislead the panel, and it’s going to unfairly

prejudice the Government’s ability to put on a case.” After

rejecting the prosecution’s argument, the military judge

provided the parties with a copy of the stipulation, reflecting

his proposed changes. In one of the changes, he proposed to

delete references to himself and substitute the phrase “court

official.” Trial counsel agreed, but defense counsel thought it

was important to refer to the “military judge.” Defense

counsel’s insistence that the stipulation expressly refer to the

confrontation between Bernstein and the “military judge” caused

the military judge to ruminate about the subject of recusal:

MJ: Well, now I have to decide whether or
not I should recuse myself notwithstanding
no motion by anybody [sic]. Do you think
that your position in this case -- your

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position in how you complete this case is
going to interject me as a victim?

Defense counsel assured the military judge that he was not going

to portray the judge in that manner, but also added that it was

important to the defense that the members understand that the

incident involved Bernstein and the military judge, “the senior

person around here.” The military judge made a further attempt

to persuade the defense counsel to change the references in the

stipulation to a “senior field grade judge advocate” or a

“senior field grade member of the Judge Advocate General’s

Corps,” but the defense counsel declined to agree to such a

change.

After the parties and the military judge reviewed the

substance of the stipulation, they then considered whether it

should be treated as a stipulation of testimony, which would be

read to the members but not sent to the deliberation room, or a

stipulation of fact, which could either be read to the members

or sent to the deliberation room, or both. See RCM 811(f).

Eventually, the military judge determined that it was a

stipulation of fact, and offered the following reflection on the

tenor of his dealings with trial counsel:

It appears to me, Captain Schwind, that it
would be very reasonable for you to believe
that I’ve mugged you at every corner and not
done the same to the defense; and that’s not
an unreasonable perception. . . . So, I
tell you that any pressure you felt to

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stipulate to Mr. Bernstein’s testimony, I
extract and remove. And, I want you to do
what you want to do. . . . And, I’m willing
to do what it takes to get [Mr. Bernstein]
here. What do you want to do? Talk to
Captain Henry.

The trial counsel quickly responded that the prosecution had “no

interest in bringing Mr. Bernstein back into the courtroom.”

23. THE STIPULATION’S DESCRIPTION OF THE CONFRONTATIONS
BETWEEN THE MILITARY JUDGE AND MR. BERNSTEIN

The members returned to the courtroom, and the military

judge proceeded as follows:

MJ: And, I'm now going to give you - - read
to you a stipulation of fact, which I think
will at last explain to you why you've been
held in abeyance as we struggled with this
issue.

You're advised that a stipulation of
fact is an agreement between the prosecution
and the defense, with the express consent of
the accused, that what I'm about to read to
you are the uncontradicted facts or are
uncontradicted facts in this case.

[Reading:] "[JB] was called as a
witness by the prosecution - - And, you'll
also have this with you in deliberation.
You're getting it now so that you'll
understand counsel's argument.

[Reading:] "[JB] was called as a
witness by the prosecution. When he was
called, he did not immediately appear in the
courtroom. The bailiff entered the
courtroom to tell Captain Schwind that he,
[JB], refused to testify. The military
judge called a brief recess to find out what
was happening.

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The military judge went to the witness
waiting area to determine if this witness
did want to testify. There was a
confrontation with Mr. Bill Bernstein who
tried to prevent [JB] from testifying. He
was very agitated and threatened to take
action. The military judge touched Mr.
Bernstein in an effort to get his attention.
Mr. Bernstein calmed down and allowed [JB]
to testify.

The same day Mr. Bernstein contacted
the military judge's superior and told him,
the superior, that the judge had assaulted
him and cursed him.

A session was held outside of the panel
where Mr. Bernstein apologized for his
temper and the whole situation. He said it
was merely an act of frustration on his
part, and further said that he had no
problem with the military judge. He added
that the incident was behind him.

That evening Mr. Bernstein contacted
several people on Fort Hood, including
senior officers, to tell them that he was
assaulted and cursed. He said that he was
not treated with the proper respect. He
went on to add that we, in quotes, “did not
know who he was; and that, he had very
powerful friends.”

Mr. Bernstein then filed a complaint
with the Fort Hood Military Police against
the military judge for assault. He also
went to the Killeen Daily Herald newspaper,
and as a result of this visit - - that
visit, an article was published in today's
edition of the daily newspaper. The article
accused the military judge of assault and
using foul language in his presence.

After reading the stipulation, the military judge provided

the following guidance to the members:

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Now, the parties will tell you why they
think that's important. That's not my job,
but let me tell you what's very important,
and then I have a couple of questions for
you.

I'm not a witness to this case. My
credibility is not an issue. What happened
with respect to the stipulation of fact in
terms of my role - - my question to you is:
Does that bother anybody?

MEMBERS: [Appear to respond in negative.]

MJ: Do you understand that my job is as the
sole source of the law; however, I cannot
give you the law effectively and cannot
expect you to follow the law if you have
reservations about whether or not the guy
giving you the law might be out of his mind?

MEMBERS: [Appear to respond in negative.]

MJ: Any reservations whatsoever?

MEMBERS: [Appear to respond in negative.]

MJ: Negative reply from the members.

I also want you to appreciate that you
understand that my role, with respect to
that stipulation, was not an attempt to help
either side, not an opinion on my part as to
what was proper or improper, a good tactic
or a bad tactic; that, my role, my
involvement, in that was simply to do what
I've been trying to do since the beginning
of this trial, and that was to get the
witnesses and the evidence moving; in other
words, a logistical matter and nothing more.
Does everyone understand that?

MEMBERS: [Appear to nod in affirmative.]

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24. CONSIDERATION OF THE CONFRONTATIONS DURING CLOSING ARGUMENTS

After a brief summary of the prosecution’s evidence, the

Government promptly turned to the confrontations between Mr.

Bernstein and the military judge, in an effort to preempt the

defense reliance on the stipulation:

What was the defense case? What was their
argument. Well, you can tell. You can tell
from what came in today. Their scant
evidence was that a Mr. Bernstein, a
pompous, civilian know-it-all, as it seems,
in their opinion, masterminded the trial to
bring down Sergeant Quintanilla . . . .

Trial counsel acknowledged that Mr. Bernstein “probably” was

“misguided,” but contended that it was not logical to assume

that he controlled the prosecution witnesses. He emphasized the

fact that Mr. Bernstein had not played any role in the

allegations made by the two military complainants, and that he

had not discussed any specifics with RW or RW’s father.

After a further discussion of the evidence supporting the

charges, trial counsel returned to Mr. Bernstein, describing him

as “arrogant,” “conceited,” and “a loon . . . [whose]

personality offends a lot of people.” With respect to the

stipulation, trial counsel stated that

[Bernstein] was so angered about what
happened at the hand of the military judge
that . . . he couldn’t just go home and
sleep it off. He calls the police: “I’ve
just been assaulted by a judge.” He calls
the newspaper: “I’ve just been assaulted by
a judge and he used profanity against me” .

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. . . Maybe some of you are waiting for the
military police to come in here and take the
judge off the stand. I don’t know.

The military judge interrupted trial counsel’s argument at that

point:

Yeah, leave me out of it gentleman. My
credibility is not at issue. . . . I’m not
chastising you, Captain Schwind, for your
argument. . . . I just want to make it clear
the stipulation of fact is a fact. It’s
uncontradicted. It’s there. It happens.
Stuff like that happens to all of us, but
the fact that it happened to the judge in
the case is not important. It’s certainly a
fact that you shall consider in your
deliberations, but it’s not important in
terms of how it affects me or the law or
anything else; just how it affects how you
see Mr. Bernstein and his activities.

During the balance of his argument, trial counsel

emphasized that Mr. Bernstein had no influence on the two

military victims and that he simply told RW’s father that he

should contact law enforcement authorities without suggesting

the details of any offense. With respect to JB and CS, trial

counsel did not endeavor to rebut the defense evidence of Mr.

Bernstein’s influence, but instead focused on the specific

evidence of the alleged offenses against each.

Defense counsel’s closing argument repeatedly emphasized

Mr. Bernstein’s role in the prosecution of the charges, both in

terms of his contacts with JB, CS, and RW’s father before the

allegations were presented to the military authorities, as well

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as his attempts during trial to influence witnesses in the

waiting room. Defense counsel specifically relied on the

stipulation concerning the confrontations between the military

judge and Mr. Bernstein as a means of attacking Mr. Bernstein’s

credibility:

The stipulation of fact you get: Did I know
about that before we started when I told you
[in the opening statement] he was going to
be a force in this trial? I didn’t know
that. I’m not making this stuff up. This
is offered so you know what kind of force
this guy is. He’s dominating [JB] in the
witness room. “He ain't coming out guys. I
don’t like how you’re doing this. When you
convince me, he’ll come out.” This kid
isn’t a puppet? This is a stipulation of
fact. This is uncontroverted.

Is he on a power trip? Is it because
of a power trip possibly? Does he want to
be in the paper because of this stuff? . . .
[I]t doesn’t matter what kind of authority
is around, he’s going to be abusing it.

Continuing his emphasis on the stipulation regarding the

confrontation, he said:

And, I got one other thing for you that we
all know now because of this. And, I didn’t
know this at the beginning of the trial, but
. . . now I’ve got proof. He even knows how
to push the military’s buttons. . . .
Somebody pisses him off, he calls the
commander. He goes to the MPs’s. . . .
And, what does he do when he allegedly finds
out [JB has been] assaulted? He doesn’t go
to the Killeen police . . . . He goes to CID
because he knows that‘s how you get him.

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With respect to the charges involving the three civilians,

defense counsel’s closing argument focused primarily on Mr.

Bernstein’s influence. In terms of the charges involving the

two military personnel, defense counsel primarily challenged

their testimony and the testimony of other government witnesses.

Counsel did not develop any significant relationship between Mr.

Bernstein’s activities and the military victims.

25. THE VERDICT

The members acquitted appellant of the charges involving

two of the three civilians, JB and CS, and convicted him of

forcible sodomy upon the other civilian, RW. In addition, the

members convicted him of indecent acts and indecent assault

offenses involving the two military victims.

B. POST-TRIAL PROCESSING

Appellant was sentenced on August 22, 1996, to a bad-

conduct discharge, confinement for three years, forfeiture of

$300 pay per month for 36 months, and reduction to the lowest

enlisted grade. The Staff Judge Advocate’s post-trial

recommendation to the convening authority -- the commander of

the 1st Cavalry Division -- was served on defense counsel on

February 3, 1997. Defense counsel’s post-trial submission to

the convening authority under RCM 1105 and 1106 requested

disapproval of the findings, based upon a variety of alleged

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errors. The defense also requested that the post-trial

responsibilities be transferred to an “off-post” convening

authority. The submission included the following references to

Mr. Bernstein and the military judge:

During this trial, a government witness, Mr.
Bernstein, sat in the waiting room and
coached the government witnesses on how to
testify and what to say. During the trial,
both the trial counsel and defense counsel
requested that the military judge recuse
himself for lack of impartiality. The
military judge, trial counsel, chief of the
1st Cavalry Division criminal law section, 1st
Cavalry Division SJA, 1st Cavalry Division
Commander, III Corps SJA, and the III Corps
Commander all became directly involved in
this case through their contact with Mr.
Bernstein during the trial, making them all
potential witnesses. In fact, the military
judge advised the trial counsel to have
these post trial matters handled off-post
because of the involvement/contact of the
listed officers in this matter. SSG
Quintanilla was unable to obtain a fair
hearing in this atmosphere.

The SJA, in an addendum to the convening authority, advised the

convening authority that: (1) he, the SJA, was not disqualified

because he had merely listened to Mr. Bernstein’s complaints;

(2) the convening authority was not disqualified because he had

not spoken with Mr. Bernstein; and (3) there was no evidence in

the record that Mr. Bernstein ever spoke to the III Corps

Commander, “or what may have been said.” The SJA also noted

that the military judge had assumed erroneously that Mr.

Bernstein had spoken to the convening authority. Defense

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counsel’s reply emphasized that he was not present during Mr.

Bernstein’s conversations with the command and that the details

of those conversations were not reflected in the record of

trial.

Subsequently, when a different general officer was

designated as the acting commander of the 1st Cavalry Division,

that officer assumed the duties of the convening authority in

appellant’s trial. The new convening authority decided it was

impractical for him to act on the case, citing the material

submitted by defense counsel as well as the comments of the SJA,

and forwarded the record for action by the III Corps Commander.

At III Corps, the Chief of the Criminal Law Division

prepared a memorandum for the SJA describing Mr. Bernstein’s

interaction with both commanders and judge advocates:

Mr. Bernstein thought that the government
counsel was pressuring his employee to
testify and he called you to complain. At
trial, Mr. Bernstein became upset, also
refused to testify, and contacted or
attempted to contact the 1st Cavalry Division
Staff Judge Advocate, the Division
Commander, you, and the III Corps Commander
to discuss his and his employee’s continued
presence and participation at trial.

The memorandum provided the following description of Mr.

Bernstein’s confrontation with the military judge:

During the course of the court-martial, Mr.
Bernstein and the military judge, COL Keith
Hodges, engaged in a public, verbal
altercation outside the courtroom over his

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refusal to testify. This ultimately ended
in Mr. Bernstein’s filing of assault charges
against the military judge.

The memorandum also stated that Bernstein “contacted the III

Corps Commander after conclusion of the trial to discuss the

incidents noted above.” After noting the military judge’s

recommendation that the case be transferred to an “off-post”

convening authority for post-trial action, as well as the

defense counsel’s request to the same effect, the memorandum

recommended that the case be transferred to the Commanding

General of U.S. Army Forces Command, Fort McPherson, Georgia,

“to preclude any question of unfairness in the proceedings.”

The III Corps Commander adopted that recommendation and

forwarded the record to his superior, the Commander of U.S. Army

Forces. In his transmittal memorandum, the III Corps Commander

stated:

One of the key witnesses in this case
initiated several conversations with me and
my Staff Judge Advocate. The circumstances
surrounding those conversations, coupled
with the emotional environment in which this
case was tried, lead me to concur with the
military judge’s recommendation to forward
the record of trial to you. I believe that
this avoids any question of unfairness in
the proceedings and ensures that the justice
system remains inviolate.

The post-trial record does not set forth the details of the

conversations between the III Corps leadership and Mr.

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Bernstein, nor does it explain the conflict with the earlier

addendum, which had suggested that there were no such

conversations.

The post-trial recommendation subsequently prepared by the

SJA at Forces Command included a summary of the reasons the case

had been transferred from Fort Hood. The summary noted that the

military judge had recommended post-trial action by an “off-

post” convening authority, “after he had become involved in an

out-of-court confrontation with a prosecution witness.” The

recommendation summarized the findings and sentence and

recommended approval. The defense submitted a response that

primarily incorporated the matter previously submitted to the

convening authority at Fort Hood, and the SJA at Forces Command

provided a brief addendum simply noting his disagreement with

the defense submission. On July 21, 1997, eleven months after

trial, the convening authority approved the findings and

sentence.

C. ADDITIONAL EVIDENCE CONCERNING THE CONFRONTATIONS
DISCLOSED DURING APPELLATE REVIEW

During review by the Court of Criminal Appeals, appellant

sought to determine whether any additional evidence concerning

the confrontations had been generated as a result of separate

investigations into the confrontations between the military

judge and Mr. Bernstein. Although the Government initially

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rebuffed these requests, the defense eventually was provided

with a number of documents in October 1998, more than two years

after trial. The documents included the following material,

which had been provided by the participants to military police

investigators during the court-martial and in the days

immediately following the trial’s conclusion on August 22, 1996:

(1) a statement by the military judge on August 28, accompanied

by a memorandum prepared by the military judge; (2) a statement

by the trial counsel on August 27 and trial counsel’s memorandum

for the record dated August 26; (3) two statements by the

bailiff on August 27; (4) statements by Mr. Bernstein and JB on

August 22, provided shortly after midnight on the day of the

confrontation. In addition, the civilian defense counsel, Mr.

Carlson, executed an affidavit concerning these matters on

November 16, 1998.

D. DESCRIPTIONS OF THE CONFRONTATIONS
OUTSIDE THE RECORD OF TRIAL

1. THE MILITARY JUDGE

The statement provided to the MPs by the military judge,

and his accompanying memorandum, provide details about the

confrontations beyond those set forth in the record. According

to the military judge’s memorandum, when the Government called

JB as a witness, the bailiff returned after “about 5 minutes”

and said “something to the effect that the witness wasn’t

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coming.” The military judge sent trial counsel to assist the

bailiff, apparently to no avail. The memorandum does not

reflect whether the military judge had any conversations with

the bailiff or counsel as to the nature of the problem.

At some point, the military judge became concerned about

the impact of the delay on his responsibility for the efficient

conduct of the trial, and decided it was necessary for “the

witness to come as called or else have someone make a decision

what would be done next.” His memorandum notes: “I recessed

the court, took off my robe, and went to inquire why it was

taking so long to get the witness into the court room.” He

added: “Knowing that I was about to potentially have contact

with a witness, I took a counsel from both sides with me: CPT

Schwind [the trial counsel] and Mr. Carlson [the defense

counsel].” In his statement to the CID, he stated that Schwind

and Carlson “came with me to the room and were either inside or

in the doorway. I had my back to CPT Schwind and Mr. Carlson.”

As noted in section III.D.3., infra, Mr. Carlson’s post-trial

filing disputes this account and asserts that he was not present

for any of the events involving the military judge and Mr.

Bernstein.

The military judge’s memorandum states that he located Mr.

Bernstein and JB and identified himself as the military judge.

He viewed the situation as “tense but not violent or building in

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that direction at all.” Mr. Bernstein first complained that he

had not been treated properly by CPT Henry, the Chief of

Military Justice for the 1st Cavalry Division, and then told the

military judge that he objected to having JB called as a

witness. The memorandum states that the military judge

“politely” informed Mr. Bernstein that the decision whether to

testify belonged to JB, that Mr. Bernstein replied by telling

the military judge that JB was not under subpoena, and that Mr.

Bernstein became “rather emotional.” The memorandum indicates

that the military judge was not aware that the trial counsel had

not issued a subpoena to JB.

In the memorandum, the military judge notes: “I believed we

would have a more productive discussion if the level of emotion

was toned down a bit.” In furtherance of that goal, “I felt

comfortable enough with him to simply place both of my hands,

palms open and toward him, on the upper fourth of his chest and

my fingers on his shoulders and simply pat him twice and say to

the effect, ‘Mr. Bernstein, calm down. Let’s go to court.’” In

his statement to the MPs, the military judge stated that he did

not use any profanity during the initial confrontation.

The memorandum states the military judge informed JB that

he could either “testify now or testify at some other time later

-- possibly much later -- after a subpoena was served.” JB

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replied he wanted to testify now, and the military judge

returned to the courtroom.

The memorandum indicates that a second confrontation

occurred when JB did not appear and the military judge became

“impatient.” The military judge decided not to direct the trial

counsel to locate the witness “because it is hard to get lawyers

back in once they leave.” Instead, the military judge “simply

left the bench and again went to inquire as to the delay.” In

contrast to his description of the first confrontation -- which

states that he brought counsel for both parties with him because

he was going to be dealing with a witness -- the military

judge’s memorandum notes that during the second confrontation he

was accompanied only by the bailiff, SPC Cooks. The memorandum

contains the following description of the second confrontation:

As I walked in, Mr. Bernstein immediately
told me he was talking to LTG Schwartz. His
tone and demeanor was again “high,” that is,
he was worked up on what I saw as a simple
matter and one we had earlier resolved. He
had his hand over the mouth piece. I told
him that it didn’t matter to me for it was
my job not to do the commander’s bidding, I
could not do what LTG Schwartz said, and my
chain of command was my senior judge or
words to that effect. It then became
apparent he was on hold. Mr. Bernstein
apparently tired of holding and hung up the
phone. As Mr. Bernstein began to tell me
about all his contacts in Killeen and on Ft
Hood, I told Mr. Bernstein, “I don’t f***ing
care what others tell me to do.” I was
supposed to follow what I believed was
right. . . .

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. . . My inappropriate and unnecessary use
of the profanity remarkably changed the
nature of my contact with Mr. Bernstein. He
paused, smiled, and said to [JB], “I like
this guy. He uses the F-word.” (He might
have said the whole word, I am unsure.) The
conversation returned to cordial, and Mr.
Bernstein then wished to persuade me to do
something to avoid [JB’s] being called. I
finally explained to Mr. Bernstein that
since he was not in a parental-like
relationship with [JB] and he was preventing
the government from calling a witness, he
could be held in contempt if he interfered
with the trial. We agreed that [JB] could
make his own decision. Mr. Bernstein then
wished to close the door (leaving SPC Cooks
outside) to ask something of me. I stayed
in the doorway so not to exclude SPC Cooks.
Mr. Bernstein, in a friendly and inoffensive
manner, held on to me and said to the
effect, “Please, please don’t let them give
[JB] a hard time,” and something about not
revealing [JB’s] home address. I simply
replied something to the effect of, “We’ll
just follow the rules.”

In the memorandum, the military judge noted that he could

not be sure whether his physical contact with Mr. Bernstein

occurred during the first or second confrontation, stating “[i]t

simply was not significant enough even to be memorable in terms

of which visit it occurred.”

In his statement during the MP investigation, the military

judge added that he had called for MPs to be present after

either the first or second confrontation:

As I left CPT Schwind’s office the first or
second time (I believe the second) I told
CPT Henry (I believe) to have MPs present.

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I did that to prevent any possible problems
because Mr[.] Bernstein kept saying that
[JB] and the others were afraid of the
accused and I had concern about contact
between the accused, JB, and Bernstein.

In his memorandum, the military judge offered the following

summary regarding his responsibility:

a. I deny that I committed an assault for I
know he [Mr. Bernstein] was not offended by
my touching him. That is clear to me from
my interaction with him and he with me. My
touching was, under the circumstances as I
saw and know them to be, appropriate to our
“relationship” and in an effort to calm the
situation.

b. That Mr. Bernstein might not have been
offended by my profane word, it does not
excuse my having used it especially under
the circumstances. It was not an insult to
him or anyone else, just very bad taste.

c. I did unnecessarily place myself in a
position where an assault allegation,
however groundless, could be made.

d. Notwithstanding my style to take an
active responsibility to keep a trial
moving, I should not have directly involved
myself in a matter that was occurring
outside the courtroom but rather have left
it to the parties. I admit the better
course would be simply to have taken a less
active, passive approach. My motive was to
keep the trial moving; I should have used a
different method.

e. I assumed the risk by touching Mr.
Bernstein however well intentioned. I have
touched hundreds in the same positive,
friendly, and encouraging way. It takes
such an event to fully appreciate the risk
at hand. I understand.

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2. THE TRIAL COUNSEL

Trial counsel’s description of the two incidents provides

significant details not set forth in the record or in the

military judge’s post-trial statement and memorandum. In

particular, trial counsel describes the military judge as being

much more emotional and confrontational in his dealings with Mr.

Bernstein.

Trial counsel’s memorandum for the record notes that he met

with Bernstein on August 19, the day before trial on the merits:

We have a long discussion re whether he or
[JB] must appear in court. I say no,
because my policy is not to subpoena my own
witnesses. Bernstein seems cooperative,
saying he will appear with or without [JB]
and he will try to get [JB] to come to court
with him.

Referring to a telephone conversation that evening,

the memorandum states:

I again assure him there is no subpoena for
his or [JB’s] appearance. He makes me
guarantee that I will protect [JB], then
promises he will have [JB] there.

Trial counsel had similar conversations with Mr. Bernstein and

JB on the morning of the expected testimony, in the presence of

the Staff Judge Advocate for III Corps.

Trial counsel’s memorandum sets forth the following

sequence of events with respect to JB’s testimony. The bailiff,

after leaving to notify JB that it was time for him to testify,

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returned “1 minute later . . . saying that [JB] will not take

the stand.” Trial counsel asked CPT Henry to talk to Mr.

Bernstein and JB. A minute later, the military judge sent the

trial counsel on the same mission. Trial counsel went to his

office, where he found Mr. Bernstein, JB, CPT Henry, and CS’s

father. Mr. Bernstein was “irate,” complaining that CPT Henry

had treated him with disrespect. Concerned that Mr. Bernstein

was “trying to provoke CPT Henry,” trial counsel asked CPT Henry

to leave. At that point, Mr. Bernstein also threatened to

leave.

Trial counsel returned to the courtroom to inform the

military judge that he was “working on getting the witness to

come into court.” When the military judge directed a recess,

trial counsel responded by saying “no, because when I get [JB]

into the courtroom, I want him to testify immediately.” The

military judge nonetheless ordered the recess, and trial counsel

went to his office.

Mr. Bernstein, JB, and trial counsel were in trial

counsel’s office when the military judge entered “in his Class B

uniform.” In his statement to the MPs, trial counsel noted that

the civilian defense counsel, Mr. Carlson, “might have been just

outside my door.”

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The military judge, who apparently did not identify

himself to the civilians in the room, asked if JB was going to

testify. According to trial counsel’s statement to the MPs,

Bernstein responded with his belief that no
one can force [JB] to testify, and the two
of them could just leave if they wanted to.
COL Hodges keeps asking Bernstein to be
quiet and let him speak. Bernstein kept
talking over COL Hodges.

Whereas the military judge’s memorandum indicated that the

military judge had immediately informed Mr. Bernstein of his

judicial position, trial counsel’s memorandum indicates that

the military judge -- who was not in his judicial robes -- had

not made his status known to Bernstein and JB during his initial

communications with Mr. Bernstein and JB. Trial counsel’s

statement notes that

Bernstein finally asked who COL Hodges was.
COL Hodges told him he was the judge.
Bernstein quickly sat down and COL Hodges
told them that there would be no other
opportunity for them to testify, because the
trial was the only shot for the government
and the defense.

Mr. Bernstein did not find this response satisfactory, which led

to “an exchange of words, in a heated state on the behalf of

both COL Hodges and Bernstein.”

During this confrontation, “Bernstein shot up off the couch

and demanded to know if he had to testify.” The military judge

“patted Bernstein on the shoulder and told him to calm down.”

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On the issue of whether JB was required to testify, trial

counsel’s statement indicates that the military judge stated JB

would have to testify regardless of whether there was a

subpoena:

COL Hodges said yes, [JB] had to testify.
Bernstein then became irate again, and asked
why since he had no su[b]poena. COL Hodges
stated that it was his courtroom, and [JB]
would testify.

The situation then became even more intense:

Bernstein stated that neither he [n]or [JB]
had to testify, and that he had spoken with
LTG Schwartz. At this point COL Hodges’
face turned beet red and I could see he was
very upset.

The military judge “told Bernstein he didn’t care about the

General,” and the incident moved towards its conclusion:

After a few more words from COL Hodges, COL
Hodges pointed his finger at Bernstein’s
face and stated he (Bernstein) would be in
the courtroom in one minute. COL Hodges
then looked at me on his way out and told me
to call the military police.

In response to follow-up questioning during the MP

investigation, trial counsel provided additional details:

Q. [D]id COL Hodges come into your office
and state the following to [JB], “If you
don’t get your f***ing a** in the court room
in one minute, I’ll find you in contempt of
court and call the MPs?”

A. No, not to [JB].

* * *

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Q. [D]id COL Hodges make a similar comment
to Bernstein?

A. Yes.

Q. What was it that COL Hodges stated to
Bernstein, while in your office, that was
with regard to being in contempt of court?

A. It was something to the effect of, “I’m
about to hold you in contempt of court, you
(Bernstein) be in my court in one minute....

3. THE DEFENSE COUNSEL

In his appellate affidavit, Mr. Carlson stated that he

“remained in the courtroom” during trial breaks, that he was

never in trial counsel’s office during trial, and that he was

not present in trial counsel’s office “for any of the events

that transpired between Col Hodges and Mr. Bernstein.”

4. THE BAILIFF

The statements provided by the bailiff, on the other hand,

describe a much more benign situation. After noting the

interchange between the military judge and Mr. Bernstein

concerning LTG Schwartz, the bailiff’s statement notes:

Judge Hodges began to talk to [JB]. At this
point, Bill Bernstein walked around CPT
Schwind’s desk where Judge Hodges, [JB], and
myself were standing. Judge Hodges put his
hand on Bill Bernstein’s shoulder and said,
“Let me show you what 30 years[’] experience
can do.”

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The statement notes that the military judge asked JB “if he

wanted this situation over with this week or a couple of

months.” JB said he wanted it to be over “this week,” and the

military judge told him it would be resolved “this week.”

According to the bailiff, Mr. Bernstein expressed concern

that JB “was timid and the defense would get to him.” The

military judge asked JB to consider whether, if his parents were

on trial, he would want the defense to do the best job possible.

JB agreed, and “stated that he would testify.” The military

judge said that “he only wanted everyone to have a fair chance.”

At that point, they returned to the court room and JB testified.

The bailiff stated that the incident was observed by “Col.

Hodges, Bill Bernstein, [JB], and myself.” He added that the

door was closed. In response to the investigator’s questions,

he said that the military judge did not “use any profanity, . .

. make any provoking gestures, address either Bernstein or [JB]

in a hostile unprofessional manner, . . .[or] make reference to

either Bernstein or [JB] with regard to being in contempt of

court.”

5. MR. BERNSTEIN AND JB

Mr. Bernstein and JB were in court on August 20. Later

that evening, they met with the military police and provided

statements that were signed shortly after midnight. Their

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statements are somewhat closer to the description of events

provided by the trial counsel than the descriptions provided by

the military judge or the bailiff.

JB’s statement notes that the military judge came into the

trial counsel’s office and

told me that I had one f***ing minute to
come into the court room to testify . . .
and he told Bill Bernstein to watch your a**
before he called the M.P.’s on you and the
judge hit him on the chest about three or
four times.

In response to questions during the MP investigation, JB

indicated that he had not been under a subpoena, that he was

forced to testify against his will, and that the military judge

made him testify.

Mr. Bernstein provided the following description of the

events leading up to his confrontation with the military judge:

The judge came out of his chambers and told
[JB], “If you don’t get your f***ing a** in
the court room in one minute I’ll find you
in contempt of court and call the M.P.’s.”
Then he turned around and looked at me and
asked me if I was [JB’s] father or mother.
At that time I told him no. Col. Kenneth
(sic) Hodges looked at me and asked me who
the f*** I was. I told him that I was Mr.
Bernstein one of the character witnesses.
Col. Hodges looked at me and said, “Stay the
f*** out of me and [JB’s] business.” Then
he smacked the left side of my chest four or
five times with an open hand. At this time
I was in so much shock that I didn’t know
what to do. The judge walked back into his
chamber and [JB] was threatened to get

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inside of the court room. Then [JB]
proceeded to go into the court room.

E. DESCRIPTION OF AN EX PARTE COMMUNICATION
BETWEEN THE MILITARY JUDGE AND TRIAL COUNSEL

As described in Section III.A.5., supra, JB testified on

the merits. Following his testimony, there was an Article 39(a)

session to consider an evidentiary matter. Two minutes after

the Article 39(a) session began, the military judge abruptly

announced, “We’re in recess.” Trial counsel’s post-trial

memorandum sets forth the following account of events that

occurred prior to and during the 39-minute recess -- events that

are not reflected in the record.

While JB was testifying, trial counsel received a

communication from another attorney that engendered concern

about whether Mr. Bernstein would remain and testify at trial.

At that point, trial counsel signed a subpoena and directed that

it be given to Mr. Bernstein.

During a break in JB’s testimony, trial counsel returned to

his office with JB, where Mr. Bernstein was waiting. In his

post-trial memorandum, trial counsel provided a description of

the ensuing scene:

Bernstein is screaming that I “f***ed him”
by giving him a subpoena. . . . He is
spraying the words as he’s saying them. I
explain that I had no choice because he kept
asking if he had a subpoena. He is yelling
that he is now a prisoner on Fort Hood and
being held against his will.

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The discussion then addressed the merits of the allegations

against appellant:

Bernstein states that he will now testify
for the Defense, and tell the court that
everything was made up.

As Mr. Bernstein became even more agitated,

[h]e says a few more times that I and
everyone here have “f***ed him.” He throws
his phone at the ground and I hear a few
pieces of plastic hit the wall. He stomps
two or three times on the phone, breaking
off the mouthpiece.

The confrontation apparently was so noisy that it drew the

attention of another attorney. Trial counsel assured the other

attorney that everything was “OK”. Mr. Bernstein then “calms

down, . . . picks up his phone and starts playing with the

shattered lower end, [and] tells me that he has just damaged a

several-hundred-dollar-phone.”

Trial counsel returned to the courtroom for the completion

of JB’s testimony. During the break that followed, the military

judge informed trial counsel that Mr. Bernstein had filed an

ethical complaint against the military judge. This revelation

led to an ex parte discussion between the military judge and

trial counsel about the impact of this development on the

proceedings:

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On my way back in COL H tells me that
Bernstein had called COL Clervi14 and made an
ethical complaint against him, and that we
will address the allegation with Bernstein
on the record prior to calling Bernstein as
a witness.

Trial counsel made it clear that he did not agree with the

military judge’s approach because of the adverse affect that it

might have on the prosecution’s case:

I stop COL H at the rear door to the court
and ask if we can have Bernstein testify
first, then address the ethics issue,
because I am worried that Bernstein may blow
up on the stand when called on the ethics
issue. COL H agrees.

This ex parte conversation was not mentioned by the military

judge in his post-trial statement or memorandum, nor was it

disclosed on the record at that time or in any of the subsequent

sessions concerning this matter.

F. THE MILITARY JUDGE’S DECISION TO LIMIT DISCLOSURE AT TRIAL

Following the trial, the military judge provided the

following explanation of his purpose in calling the Article

39(a) session at which Mr. Bernstein testified about the

confrontations:

The focus of that session was not to defend
or exonerate me, but to develop whatever
facts were necessary to allow the parties to
do what they needed to do.

14
The Chief Circuit Judge, who was the supervisor of the military judge
within the trial judiciary.

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The military judge’s memorandum also described an out-of-

court conversation that he had with Mr. Bernstein’s attorney

during the recess called to permit the attorney to meet with Mr.

Bernstein:

After I questioned Mr. Bernstein and before
counsel did, Mr. Hewitt -- a Killeen
attorney -- asked to consult with “his
client,” Mr. Bernstein. Though I had seen
Mr. Hewitt in the court room and was later
told Mr. Hewitt said something about his
being there for Mr. Bernstein, I didn’t know
Mr. Hewitt’s role until he asked for the
recess. Mr. Hewitt asked if I was going to
hold Mr. Bernstein in contempt. I told him
I would not -- could not -- because as it
turned out, Mr. Bernstein had not interfered
with the proceedings.

The military judge also described his impressions of Mr.

Bernstein’s testimony at the Article 39(a) session:

Mr. Bernstein apologized to me. It was my
impression that Mr. Bernstein, having spoken
to his lawyer and having taken a different
view during the second [Article 39(a)
session] on the matter, that the matter was
closed.

Contrary to the military judge’s impression of the matter,

Bernstein was not mollified, and later that evening he provided

the military police with a sworn statement alleging that he had

been assaulted by the military judge. In that statement, he

provided the following explanation for his cooperative attitude

during the proceedings held earlier in the day:

At that time my lawyer gave me a wink and
motioned with his mouth, “be humble.” At

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that time I was so scared to death about
being put into contempt of court I went
ahead and apologized to the court for the
actions outside of . . . COL Hodges'
chambers . . . . COL Hodges said I do not
need a[n] apology from you but I will look
over the incident.

Although the military judge was satisfied with Mr.

Bernstein’s testimony at trial about the confrontations, his

memorandum indicates that he later recognized that the record of

trial did not provide a complete description of what had

happened:

I am confident that any inquiry will be a
thorough one but each day passes with my
learning much more occurred before and since
my involvement with Mr. Bernstein concerning
this very situation.

The memorandum, however, does not indicate what facts the

military judge had learned since trial. Elsewhere in the

memorandum, the military judge recognized that the Article 39(a)

session concerning the confrontation could have provided a

comprehensive disclosure of the facts:

While I could have turned the session into
discovery of what happened between Mr.
Bernstein and me, I saw that as unnecessary.
The parties had the facts they wanted and I
did not wish to insert the other matter
unnecessarily into the trial.

He added:

Had I known that the matter wasn’t closed
and Mr. Bernstein somehow really believed he
had been assaulted, I would have arranged
for some way to document those facts.

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Documenting those facts was not then
important to me; the trial was.

As discussed in Part III.A.16., supra, however, it soon became

apparent during trial that the matter was not closed when the

military judge learned the next morning that Mr. Bernstein filed

an assault complaint with the MPs and made a statement to the

press. None of the events, however, led the military judge to

ensure that the record of trial would “document those facts”

about his confrontations with Mr. Bernstein.

IV. DISCUSSION

Appellant asks this Court to find that the military judge

should have disqualified himself, on the military judge’s own

motion, for creating an appearance of bias under RCM 902(a), or

for actual bias under 902(b). Appellant contends that the

judge’s conduct in regard to Mr. Bernstein created an appearance

of bias. He argues that the judge’s actions in bringing a

reluctant witness to the stand and subsequently “us[ing] the

court-martial proceedings to minimize and rationalize his

conduct” demonstrate actual bias. Finally, appellant claims

that the judge’s knowledge of the underlying facts about the

confrontation made him a witness when the issue came into

evidence via the stipulation of fact.

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In response, the Government contends that appellant waived

the appearance of bias issue under RCM 902(a), noting that on at

least four occasions, defense counsel either expressly stated

that he had no challenge to make against the judge or turned

down the opportunity to question the judge. With respect to

actual bias under 902(b), the Government takes the position that

there is no evidence of bias against appellant in the record and

no evidence that the judge gained knowledge about the

proceedings from an extra-judicial source. The Government

further argues that the agreement of the parties to enter into a

stipulation of fact regarding the out-of-court events vitiated

the possibility that the judge would become a witness.

We review a judge’s decision on disqualification for an

abuse of discretion. United States v. Norfleet, 53 MJ 262, 270

(2000).

A. WAIVER UNDER RCM 902(e)

RCM 902(a) provides that “a military judge shall disqualify

himself or herself in any proceeding in which that military

judge’s impartiality might reasonably be questioned.” This is

the only basis for disqualification that may be waived by a

party, provided that the waiver is “preceded by a full

disclosure on the record of the basis for disqualification.”

RCM 902(e).

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In this case, the post-trial filings indicate that the

military judge did not fully disclose the events that could

reasonably raise a question about his impartiality. Foremost,

as noted in Section III.E., supra, the military judge never

disclosed the ex parte conversation described in trial counsel’s

affidavit, which states that the military judge acceded to trial

counsel’s request to allow Mr. Bernstein to testify on the

merits before taking up the issue of the out-of-court

confrontations and Mr. Bernstein’s complaint about the judge.

Although the judge’s initial reaction was to disclose his

confrontations with Mr. Bernstein on the record immediately

after learning of the complaint, the trial counsel’s memorandum

states that the military judge agreed when trial counsel

expressed fear that such an approach could detonate Mr.

Bernstein’s volatile personality and spoil the prosecution’s

case.

This matter was not revealed to defense counsel at trial

and only came to light when appellant obtained trial counsel’s

memorandum two years later. Although the decision on how to

proceed with Mr. Bernstein ultimately rested with the military

judge, defense counsel was entitled to be informed of

developments involving an adverse witness and to engage in a

discussion about the timing of Mr. Bernstein’s testimony on the

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merits versus the confrontations, given that the order of such

testimony was clearly a strategic point for the prosecution.

There are other lapses in the record that make it

impossible to find full disclosure for purposes of RCM 902(a).

The military judge failed to fulfill his fundamental

responsibility to ensure that the record of trial set forth a

complete account of the out-of-court events bearing upon his

actions and the issue of judicial impartiality. In his

memorandum, the military judge acknowledges that he did not

provide a complete description of his confrontations with Mr.

Bernstein because he hoped that those events would not become an

issue at trial. See Section III.F., supra. To the extent that

elements of the out-of-court events were placed on the record,

it is difficult to determine precisely what happened during the

confrontations between the military judge and Mr. Bernstein.

This is primarily the result of the military judge’s failure to

provide a coherent description of the events on the record,

preferring instead to place Mr. Bernstein on the stand in an

Article 39(a) session and question him about the episodes in a

manner that minimized the disclosure of information about the

events. When the military judge learned that Mr. Bernstein had

filed a complaint about their out-of-court confrontations, it

was the judge’s responsibility to provide a complete and

coherent description of the events on the record.

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If the military judge had made a timely and full disclosure

and allowed the parties to decide whether to waive the

disqualification in accordance with the procedure in Canon 3D of

the Code of Conduct for United States Judges, or a legally

sufficient alternative procedure, the record have could fully

documented any waiver.

Because the military judge did not ensure that the record

reflected a full disclosure as required by RCM 902(e) -- a

condition that must precede waiver of disqualification for the

appearance of bias -- it would be inappropriate to conclude on

the present state of the record that the defense counsel waived

the issue of disqualification in this case.15 See generally

Potashnick v. Port City Construction Co., 609 F.2d 1101, 1115

(5th Cir.), cert. denied, 449 U.S. 820 (1980)(the parties’

request for the judge to preside over the trial did not

constitute waiver and preclude appellate review of

disqualification under 28 USC § 455(a) because the judge’s

disclosure of a potential source of bias did not reveal all

bases for challenge); Barksdale v. Emerick, 853 F.2d 1359, 1361-

15
By the end of the trial, defense counsel comprehended sufficient details
about Mr. Bernstein’s conflicts with the judge to use the events as part of
his effort to discredit the witness by putting the matter before the members
in a stipulation of fact. As the Eleventh Circuit has noted, “a recusal
issue may not be abused as an element of trial strategy” in which a party
refuses to raise the issue until after an adverse ruling on the merits.
Kelly, 888 F.2d at 746. In the present case, however, the incomplete and
confusing record, particularly regarding the ex parte conversation between
the military judge and trial counsel, precludes us from concluding that
defense counsel’s advancement of the stipulation constituted waiver.

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62 (6th Cir. 1988)(refusing to find waiver when full disclosure

of potential basis for disqualification was not on record).

B. APPEARANCE OF BIAS UNDER RCM 902(a)

“Any 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.” United States v. Kincheloe, 14 MJ

40, 50 (CMA 1982) (quoting E. Thode, Reporter's Notes to Code Of

Judicial Conduct 60 (1973)); Wright, 52 MJ at 141. In this case,

the military judge committed several acts that would reasonably

put his impartiality into doubt. “When 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. United States v. Burton, 52 MJ 223,

226 (2000) (citations and internal quotation marks omitted). On

appeal, “[t]he test is objective, judged from the standpoint of

a reasonable person observing the proceedings.” Id.

1. IMPACT ON THE PRODUCTION OF A WITNESS (JB)

The military judge erred by interjecting himself into the

problem of JB’s failure to appear without first ascertaining the

facts. He took the unusual step of leaving the bench during a

trial and engaged in out-of-court, off-the-record actions:

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(1) without first determining whether the trial counsel was

unable to fulfill his responsibilities under RCM 703(c)(1) to

produce the witness, and (2) without the involvement of both

parties to the court-martial. By not inquiring, the military

judge erroneously assumed that the witness had been issued a

subpoena. That mistaken belief not only led to the

confrontation with Mr. Bernstein, but also appears to have

contributed greatly to the animosity exhibited during the

episode.

Although it is appropriate for a military judge to play an

active role in promoting the efficiency of a trial, the judge in

this case did not even ask trial counsel for an explanation of

what had transpired or whether help was needed. Indeed, the

judge’s action appears to have been contrary to trial counsel’s

wishes at the time. See Section III.A.4., supra. The military

judge acknowledged in his post-trial memorandum that he erred by

involving himself in the question of JB’s availability when that

matter was the responsibility of the trial counsel. See Section

III.D.1., supra.

2. FAILURE TO ENSURE THAT THERE WAS FULL DISCLOSURE AND A
COHERENT RECORD OF THE OUT-OF-COURT CONFRONTATIONS

As discussed in the previous section on waiver, the

military judge failed to put forth a clear, coherent, and

complete record of his out-of-court actions and acknowledged

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that he did not do so because he did not think that the

confrontations with the witness would become an issue at trial:

“I saw that [full disclosure of confrontations] then as

unnecessary. . . . Had I known that the matter wasn’t closed . .

. I would have arranged for some way to document those facts.”

The fact that the judge failed to perform his duty to fully

disclose the events on the record after the events clearly

became an issue at trial could cause a reasonable person to

question the judge’s impartiality in the proceedings.

Contrary to the judge’s hopes, his confrontation with Mr.

Bernstein became a central issue at trial, and his failure to

personally describe what occurred out-of-court makes it

difficult to determine exactly what happened. The ambiguity

flows from many sources.

First, the record contains numerous discussions between the

military judge and various spectators in the courtroom, none of

whom were sworn as witnesses. Often, these discussions contain

cryptic and incomplete references to persons whose duties and

relationship to the proceedings are not defined, as well as

references to events not described in the record. The military

judge failed to ensure that the reader of the record would have

an understanding of the significance and context of these

discussions.

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Second, the military judge’s interaction with witnesses and

counsel was marked by numerous interruptions, incomplete

sentences, and references to persons and events whose

significance was not explained.

Third, the record reflects at least one off-the-record

session under RCM 802 touching on these issues, the substance of

which was not adequately summarized in the record.

Fourth, the record also includes vague references to a

variety of out-of-court developments with incomplete information

as to context and little or no indication as to the source of

the information, or whether the information came from, or was

shared with, counsel.

Fifth, the record regarding trial counsel’s motion to

recuse the military judge and trial counsel’s announcement of

the prosecution’s intent to submit an interlocutory appeal of

the military judge’s denial of that motion is unclear. The

record describes the military judge’s views about whether the

denial could be appealed, as well as the military judge’s

various conversations with a spectator (CPT Henry), rather than

trial counsel, about the appeal. Much of the conversation is

difficult to follow and the record contains no indication of how

the matter was resolved, but simply leaves an inference that the

Government decided not to submit an interlocutory appeal. Cf.

Art. 62, UCMJ, 10 USC § 862 (appeal by the United States).

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Finally, assuming the accuracy of trial counsel’s

memorandum, the military judge failed to disclose an ex parte

conversation with trial counsel about the timing of Mr.

Bernstein’s testimony on the merits.16 This discussion cannot be

minimized or dismissed as merely an administrative decision.

The judge’s confrontations with Mr. Bernstein, and Mr.

Bernstein’s credibility, became central issues at trial. The

judge himself repeatedly emphasized Mr. Bernstein’s role in the

defense case and described him as the prosecution’s “achilles

heel.” Later in the trial, when the defense proposed a

stipulation of fact regarding the out-of-court confrontations,

the military judge expressly ruled that those events were

relevant on the merits.

Ex parte contact with counsel does not necessitate recusal

under RCM 902(a), particularly if the record shows that the

communication did not involve substantive issues or evidence

favoritism for one side. Alis, 47 MJ at 817; In re Federal

Skywalk Cases, 680 F.2d 1175 (8th Cir. 1982). However, an ex

parte communication “which might have the effect or give the

appearance of granting undue advantage to one party” cannot be

16
Another disclosure problem is set forth in trial counsel’s memorandum,
where he describes Mr. Bernstein’s explosion of temper in his office and Mr.
Bernstein’s announcement that he would testify for the defense that
everything “was made-up.” This incident was never disclosed to the defense
during trial, and it directly preceded trial counsel’s ex parte conversation
with the judge. The statement forms the basis for appellant’s claim in Issue
V that the Government failed to disclose material, exculpatory evidence. We
address this matter in our remand in Section IV.C., infra.

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condoned. United States v. Wilkerson, 1 MJ 56, 57 n.1 (CMA

1975).

The failure to provide for complete disclosure created two

major problems. First, the absence of such disclosure deprived

the parties of an adequate foundation for their decisions on

whether or not to request recusal. Second, a complete

disclosure could have made it more likely that the military

judge would have clearly identified and considered those facts

crucial to determining whether there was a conflict or

appearance of conflict requiring disqualification.

3. IMPACT ON THE CONTENT OF THE STIPULATION

The entanglement of the military judge’s actions with

substantive issues at trial deepened with the stipulation of

fact advanced by the defense. Near the end of trial, defense

counsel moved to put the details of the military judge’s

confrontations with Mr. Bernstein before the members via a

stipulation of fact. The stipulation described events fully

known to only two or three persons (the military judge, Mr.

Bernstein, and JB) and partially known by others (trial counsel

and the bailiff). The purpose of the stipulation was to

contrast Mr. Bernstein’s conciliatory, in-court testimony about

the events with his subsequent complaints, placing a comparison

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of the judge’s credibility with Mr. Bernstein’s credibility

directly before the members.

The prosecution would not agree to the stipulation, arguing

that the out-of-court events were not relevant to the merits.

Trial counsel immediately recognized that the stipulation would

impermissibly put the military judge in the position of being a

witness in the proceedings -- since he was one of the few people

with direct and complete knowledge about the events --

regardless of whether the stipulation was titled as one of

“fact” rather than “testimony.”

The military judge urged the trial counsel to accept the

stipulation, noting that his only alternative was to bring Mr.

Bernstein to the stand to testify about the events. As for

being a witness, the judge erroneously told trial counsel that

if he (the judge) stepped down, the Government would face a

mistrial and possible operation of double jeopardy. However, if

the judge had disqualified himself at this point because he was

becoming involved as a witness, another military judge could

have been assigned and the proceedings could have continued.

The stipulation was admitted into evidence after the judge

further involved himself by editing it and suggesting changes to

the parties.

The military judge’s continued participation in the case,

after the development of a stipulation that relied extensively

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on the judge’s personal knowledge of out-of-court events and

that placed the judge’s stature and credibility in contest with

the credibility of a witness, clearly raised questions about his

impartiality under RCM 902(a).

4. CONCLUSION

As outlined above, several actions by the military judge

created an appearance of bias under RCM 902(a). In light of the

military judge’s failure to provide full disclosure on the

record, the moment at which he first should have disqualified

himself cannot be precisely identified, but it became necessary

when defense counsel announced that he was going to make the

confrontations between the judge and Mr. Bernstein an issue on

the merits with respect to Mr. Bernstein’s credibility. At the

very least, the judge should have disqualified himself when the

stipulation was presented and the judge found himself in the

midst of negotiations that would: (1) determine how complete a

description of the confrontations should be made, under

circumstances where he had personal knowledge of events not

known to either party; and (2) adversely reflect on his own

professional conduct.

Had the military judge made a full disclosure at the

outset, the facts therein might have led him to announce a

disqualification, at which point, under applicable law, the

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parties could have proceeded with a new judge, or they could

have expressly waived the disqualification as provided by RCM

902(e).

C. REMEDY

A conclusion that a judge should have disqualified himself

or herself does not end appellate review. Neither RCM 902(a)

nor applicable federal, civilian standards mandate a particular

remedy for situations in which an appellate court determines

that a judge should have removed himself or herself from a case.

See, e.g., Liljeberg, 486 U.S. at 862 (“There need not be a

draconian remedy for every violation of § 455(a).”). In

Liljeberg, the Court established a three-part test for

determining whether reversal of a decision should be granted as

a remedy when a judge has failed to recognize that his or her

disqualification was required because the judge’s impartiality

might reasonably be questioned:

We conclude that . . . it is appropriate to
consider the risk of injustice to the
parties in the particular case, the risk
that the denial of relief will produce
injustice in other cases, and the risk of
undermining the public’s confidence in the
judicial process. We must continuously bear
in mind that to perform its high function in
the best way justice must satisfy the
appearance of justice.

Id. at 864 (internal citations and quotations omitted).

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The military judge’s incomplete disclosures and ex parte

conversation appear to have prejudiced appellant. However, we

cannot apply the Liljeberg test with any certainty in this case

because the state of the record makes it impossible to

determine: (1) what actually happened between the military

judge and Mr. Bernstein; (2) precisely what defense counsel knew

about the confrontations while the trial was ongoing; and (3)

what impact these events had on the entire trial. Likewise,

although trial counsel described the ex parte conversation and

Mr. Bernstein’s threat to testify for the defense, the impact of

these occurrences is also unclear.

The post-trial filings and affidavits considered by the

court below do not clarify these issues because they also

contain gaps and inconsistencies. For example, there are great

disparities between trial counsel’s negative description of the

military judge’s actions during the out-of-court events

(aggressive, confrontational, profane, and unaware that JB had

not been subpoenaed), the descriptions placed on the record

during the Article 39(a) session, and the descriptions in the

judge’s post-trial statement and memorandum.

There are also disparities in the record as to whether

defense counsel observed any of the out-of-court interactions

between the military judge and Mr. Bernstein. The documents

prepared by the various attorneys in the course of the post-

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trial reviews reflect inconsistent descriptions of what

transpired at trial as well.

In light of these difficulties with the record, we remand

this case for further proceedings in accordance with this

opinion and United States v. DuBay, 17 USCMA 147, 37 CMR 411

(1967). There, the record can be fully developed as to: (1)

what actually happened in the confrontations between the

military judge and Mr. Bernstein; (2) what transpired in the ex

parte conversation; (3) the nature and significance of Mr.

Bernstein’s alleged threat to testify for the defense; (4) what

details defense counsel knew at trial about these occurrences;

and (5) whether these occurrences affected the trial and charges

involving RW.

We note that our remand does not include the charges

involving the military victims. Mr. Bernstein had no

relationship with the military victims, he did not influence

them to report the incidents, and he did not testify on the

merits with respect to those charges. Likewise, the defense did

not clearly link the confrontations between the military judge

and Mr. Bernstein to the validity of the charges concerning the

military victims.

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PART B. LEGAL SUFFICIENCY OF THE EVIDENCE,
INSTRUCTIONS, AND EXPERT TESTIMONY

I. LEGAL SUFFICIENCY OF THE EVIDENCE SUPPORTING THE CHARGE OF
FORCIBLE SODOMY (ADDITIONAL CHARGE I)

A. BACKGROUND

Appellant was convicted of committing forcible sodomy upon

RW, a civilian teenager under the age of 16 at the time of the

alleged crime, and challenges the legal sufficiency of the

evidence for this conviction on appeal (Granted Issue III). The

testimony of the victim provided the only evidence of the

alleged sexual contact. RW testified to the following

chronology of events on the night in question: RW went to the

movies with appellant, after which he returned to appellant’s

house and fell asleep. In the morning, while RW was in the

process of awakening, appellant began massaging his back, and

then his stomach. Appellant then unzipped RW’s pants and began

to fondle RW’s genitals.

According to RW’s testimony, he often had difficulty waking

up, and he was struggling to awaken during these events.

However, once appellant had partially removed RW’s pants to

expose his penis, he asked appellant what he was doing.

Appellant did not respond, but put one hand on RW’s upper leg

and the other on his stomach and proceeded to orally sodomize

him for approximately 30 seconds. RW testified that he was

initially shocked by the oral contact, but that once he fully

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realized what was happening, he pushed appellant away and ran to

the bathroom.

At conference, the Government requested that the members be

instructed on: (1) incapacity to consent due to sleepiness; and

(2) the victim’s tender years as possible explanations for the

victim’s initial lack of response to the sexual contact. The

judge issued the requested instructions, and appellant did not

object to the instructions given.

B. DISCUSSION

The test for the legal sufficiency of evidence to support a

finding of guilty is whether, when the evidence is viewed in the

light most favorable to the prosecution, “any rational trier of

fact could have found the essential elements of the crime beyond

a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319

(1979). Particularly in light of the military judge’s

instructions on tender years and incapacity due to sleepiness, a

rational factfinder could reasonably have determined on the

basis of the evidence introduced at trial that the sexual

contact described by RW occurred without his consent while he

was in the process of awakening, and that he took steps to

terminate the contact once he became aware of it. Similarly,

the force used by appellant to make contact under these

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circumstances was sufficient to support the charge of forcible

sodomy.

II. FINDINGS INSTRUCTIONS

A. BACKGROUND

Appellant claims on appeal that prejudicial errors occurred

in the findings instructions issued by the military judge

(Granted Issue IV). A summary of the facts surrounding the

findings instructions follows.

During an Article 39(a) session following the close of

findings arguments by the parties, extensive debate ensued with

regard to the appropriate content of the instructions to be

presented to the members before deliberations. The military

judge showed the parties an outline of instructions that he had

prepared and informed the parties of his intent to distribute a

copy of the outline to each member at the time of oral

instructions.

Defense counsel objected to the outline, arguing that it

was confusing and that the members should be required to rely on

their own notes. The military judge overruled the objection and

proceeded to issue the outline to each member immediately prior

to giving the oral instructions. He advised that his oral

instructions would govern in the event of a conflict with the

written instructions.

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The written outline and the oral instructions initially

given were flawed in the following respects: (1) the military

judge erroneously instructed the members that constructive force

could constitute the requisite force to commit forcible sodomy

on RW; (2) the members were instructed that the law given

regarding force for the forcible sodomy specification applied

equally to the indecent assault specification; (3) the

instructions erroneously omitted the mistake-of-fact defense

with respect to the charge of forcible sodomy of RW; and (4) the

instructions erroneously omitted the tender-years instruction

for the specification concerning RW.

After the military judge issued the oral instructions,

trial counsel called the military judge’s attention to the

exclusion of the tender-years instruction. The military judge

immediately added the omitted instruction.

Following Government and defense arguments on findings, the

military judge observed that he had erroneously failed to

instruct the members on the defense of mistake of fact. He then

proceeded to give the omitted instruction to the members.

After approximately two hours of deliberation, the members

returned with a request for clarification of the force element

of the indecent assault specification. The military judge

called to the members’ attention the incorrect, written

instructions and proceeded to re-deliver the incorrect, oral

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instructions, erroneously informing the members once again that

the requirement of constructive or actual force for a rape or

forcible sodomy charge was equally applicable to indecent

assault.

The trial counsel then pointed out the error in the

indecent assault instruction. Over defense objection, the

military judge recalled the members to inform them of the

mistake and to issue correct instructions. He repeatedly

emphasized the significance of his error, asked them to cross

out the incorrect information on the written outline and write

in the Benchbook17 definition of force for indecent assault, and

orally delivered the standard instruction. He then asked the

members whether they were clear on the mistake and its remedy,

and the members agreed that they understood. They recommenced

deliberations for approximately 45 minutes and returned with a

verdict.

B. DISCUSSION

The propriety of the instructions given by a military judge

is reviewed de novo. United States v. Maxwell, 45 MJ 406, 424

(1996).

The military judge initially delivered incorrect

instructions on the law in this case. Had he failed to correct

17
Military Judges' Benchbook, Department of the Army Pamphlet 27-9 (1 May
1982).

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them, or even succeeded in correcting them but neglected to

clearly withdraw the earlier instructions, reversal would be

required. United States v. Truman, 19 USCMA 504, 507, 42 CMR

106, 109 (1970) (“Later correct instructions do not remedy the

defect in the absence of a clearly shown withdrawal of the first

erroneous instructions.”). However, the military judge clearly

retracted and then corrected these errors. All of the necessary

instructions were ultimately given in this case. The members

were repeatedly advised of the significance of the military

judge’s longest-lingering instructional error with respect to

the indecent assault charge, and they indicated that they

understood the mistake and the correction. A panel is presumed

to understand and follow the instructions of the military judge

absent competent evidence to the contrary. Loving, 41 MJ at

235.

This case is distinguishable from United States v. Curry,

38 MJ 77 (CMA 1993), a case in which the military judge did not

ultimately correct his error by issuing appropriate

instructions. Although the instructions in this complex case

were not presented in the most organized or coherent fashion

possible, under these circumstances the military judge did not

abuse his discretion in the overall manner in which the

instructions were delivered.

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Even had there been abuse of discretion by the military

judge here, appellant would have suffered no prejudice, as the

effect of the military judge’s instructional error was that

members deliberated for over an hour under an instruction more

favorable to appellant than the proper instruction to which he

was entitled.

III. ADMISSION OF EXPERT WITNESS TESTIMONY

A. BACKGROUND

The three teenage victims delayed reporting the incidents

for time periods ranging from a week to more than a month. The

Government offered an expert, Mr. Emerick, to testify on the

subject of delayed reporting of sexual assaults by victims of

abuse.

In laying a foundation for the relevance and reliability of

Mr. Emerick’s testimony and qualifying him as an expert, the

Government introduced testimony from the witness with respect to

his credentials. According to his testimony, the witness had a

bachelor’s degree in psychology and a master’s degree in

“guidance in counseling,” and had completed three-fourths of a

doctoral degree. He had specialized in the treatment and risk

assessment of sex offenders, and in the treatment of victims of

sexual abuse for 16 years. Approximately two-thirds of his

practice was devoted to working with sex offenders, with the

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remainder spent treating victims. He estimated that he had

evaluated or treated approximately 1,000 survivors of sexual

abuse.

The witness further testified that he had presented seven

or eight major papers in this field and had published two

articles. He had taught at several universities and lectured at

several specialized professional programs. His experience in

assessment and treatment of perpetrators and victims of sexual

abuse included work in Canada and in the United States. With

respect to his qualification as an expert, the witness offered

that, on over 100 previous occasions, he had testified in court

as an expert in the field of sexual abuse.

Citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

U.S. 579 (1993), defense counsel challenged Mr. Emerick’s

credentials as a witness and indicated an intent to question him

about the potential rate of error and general acceptance of the

studies upon which he was relying. The military judge then made

the following statement: “Okay. However, that doesn’t go to

his qualifications, it goes to how good his opinion is or not.

I mean, do you really think that I’m qualified to say whether or

not his answer is correct or not?” Defense counsel responded

that, under Daubert, it was the responsibility of the trial

judge to make a determination based on the factors enumerated in

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that case. The military judge replied, “I know Daubert…. But

what we’re going to do is we’re going to focus on M.R.E. 701.”

During voir dire, defense counsel elicited additional

information: (1) in one trial in which Mr. Emerick had been

qualified as an expert, an appellate state court later overruled

that qualification and stated that his credentials were

insufficient to qualify him as an expert; (2) Mr. Emerick’s

testimony would be predicated not on a single study, but on a

compilation of studies from the relevant literature; (3) these

studies did not indicate known rates of error; (4) he did not

know the sizes of the groups for the studies upon which he was

relying; and (5) at one time, Mr. Emerick was prohibited from

conducting tests in the state of Arizona due to charges of

unethical practices. The evidence also indicated that he

continued to practice in Arizona at the time of appellant’s

trial, had never been convicted of any offense related to

conduct of his practice, and that his license had never been

revoked due to the nature or quality of his work.

The military judge then questioned Mr. Emerick, and

further information was developed to indicate that the

principles upon which he would rely in testifying were valid and

generally accepted in the scientific community, and the articles

which would constitute a partial basis for his testimony had

not, to his knowledge, been discredited. The military judge

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accepted Mr. Emerick as an expert in “the treatment of both

sexual offenders and those stated to be victims of the same.”

B. DISCUSSION

Admission of opinion testimony by an expert in a court-

martial is governed by Mil. R. Evid. 702, which requires

qualification of the expert “by knowledge, skill, experience,

training, or education.” In Daubert, the Supreme Court held

that a trial judge is required to make a preliminary assessment

of whether the reasoning or methodology underlying the expert’s

testimony is scientifically sound, and whether that reasoning or

methodology properly applies to the facts at issue. 509 U.S. at

592-93. Subsequently, in Kumho Tire Co., Ltd. v. Carmichael,

526 U.S. 137 (1999), the Supreme Court held that Daubert applies

not only to expert testimony based upon "scientific" knowledge,

but also to "technical" and "other specialized" knowledge

covered by Fed. R. Evid. 702. Id. at 146. The Court noted that

the trial judge has a "gatekeeping function" in these inquiries

to "ensure that any and all . . . [expert] testimony . . . is

not only relevant, but reliable." Id. at 147.

The rules of evidence provide expert witnesses with

testimonial latitude broader than other witnesses on the theory

"that the expert's opinion will have a reliable basis in the

knowledge and experience of his discipline." Id. at 148. In

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some cases, the reliability determination focuses on the

expert's qualifications to render the opinion in question. See

id. at 151. In others, it might center on the factual basis or

data that give rise to the opinion. See id. at 149, 151.

Daubert and Kumho Tire were aimed at ensuring the overall

reliability of the evidence, including any information used to

form the basis for an opinion.

The Court articulated a number of factors in Daubert which

can be useful to consider in reaching such a determination with

respect to a given theory or technique, including whether it can

be tested, whether it has been subjected to peer review, its

known or potential rate of error, and its general acceptance in

the scientific community. 509 U.S. at 594-95.

In the present case, some initial comments by the military

judge suggest that he did not plan to apply the appropriate

analysis under Daubert, and that he intended to rely on Mil. R.

Evid. 702 alone. However, in its totality, the record

demonstrates that he ultimately undertook the appropriate

considerations as provided in Daubert. Moreover, the scientific

principles to which the witness was called to testify —— namely,

general theories explaining the tendency of victims of sexual

abuse to delay reporting incidents of assault —— were not

particularly novel or controversial.

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Appellant did not challenge the relevance of the witness’s

testimony. Mr. Emerick testified that his opinions in this case

were based both on his own experience and on an overview of

analytical studies in the field. He testified that: (1) the

studies he relied upon were peer-reviewed; (2) the rates of

error were reported in the studies, but he presently lacked

recall of the rates for each study; (3) the studies were

scientifically valid, had not been repudiated, and were

generally accepted within the scientific community; and (4) he

still retained licenses to practice and had personal experience

treating victims of sexual abuse. On this record, the military

judge did not abuse his discretion in qualifying this witness as

an expert and admitting his testimony under Daubert and MRE 702.

PART C. CONCLUSION

The decision of the United States Army Court of Criminal

Appeals is affirmed with respect to specifications 1 and 3 of

Charge II but set aside with respect to Additional Charge I and

the sentence. The record of trial is returned to the Judge

Advocate General of the Army for further DuBay proceedings to

address the issues set forth in Section A.IV.C. of this opinion.

After such proceedings are concluded, the record of trial, along

with the military judge's findings of fact and conclusions of

law, will be returned to the Court of Criminal Appeals for

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further review under Article 66(c), UCMJ, 10 USC § 866(c).

Should that court conclude that the events affected the charge

involving RW in a manner prejudicial to appellant, Additional

Charge I and its specification shall be dismissed and a

rehearing on sentence shall be ordered. Should that court

conclude that the events did not affect the charge involving RW

in a manner prejudicial to appellant, it may again affirm the

findings with respect to Additional Charge I and its

specification, and the sentence. Thereafter, Article 67, UCMJ,

10 USC § 867, shall apply.

Alternatively, if the Judge Advocate General determines

that it is not practicable to conduct a Dubay hearing,

Additional Charge I and its specification shall be dismissed and

a rehearing on sentence shall be ordered.

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SULLIVAN, Senior Judge (concurring in part and dissenting in

part):

I would affirm the findings and sentence in this case. I

agree with the majority opinion regarding the sufficiency-of-

evidence question (Issue III) and the admission of the expert

witness’s testimony (Issue VI). However, I disagree with the

majority’s handling of the disqualification issues (Issues I and

II). In my view, the military judge did not err by choosing not

to disqualify himself, nor did the Army Court err by affirming

that decision. Additionally, the erroneous instruction (Issue

IV) did not constitute plain error, and the “exculpatory”

evidence (Issue V) was not material.

In assessing whether the judge should have recused himself

under RCM 902(a), Manual for Courts-Martial, United States (1995

ed.), the majority claims that the judge’s behavior in this case

put the court-martial’s “legality, fairness, and impartiality” in

doubt. __ MJ at (110). I agree that the military judge behaved

inappropriately in this case by interjecting himself into a

dispute with the witnesses; however, appellant has not shown any

prejudice with respect to the offenses for which he was

convicted. See Liljeberg v. Health Services Acquisition Corp.,

486 U.S. 847, 862 (1988)(examining violations of the federal

recusal statute, 28 USC § 455(a), for harmless error); see also

Article 59(a), UCMJ, 10 USC § 859(a). As the lower court
United States v. Quintanilla, No. 00-0499/AR

recognized, the judge’s confrontation with Mr. Bernstein “played

directly into the defense’s theory” that Bernstein was a

“manipulator.” See United States v. Quintanilla, 52 MJ 839, 855

(Army Ct. Crim. App. 2000). More importantly, appellant was

found not guilty of the offenses against the two civilians whom

Mr. Bernstein was supporting at this court-martial.

Finally, although the majority did not resolve it, I would

face the issue of whether the Government’s failure to disclose a

potentially exculpatory statement violated appellant’s due

process rights (Issue V). According to the Supreme Court,

“[government suppression of] evidence favorable to an accused

upon request violates due process where the evidence is material

either to guilt or to punishment, irrespective of the good faith

or bad faith of the prosecution.” Brady v. Maryland, 373 U.S.

83, 87 (1963); see also RCM 701(a)(6). In order to comply with

the materiality component of the Brady doctrine, the Supreme

Court examines whether “the favorable evidence could reasonably

be taken to put the whole case in such a different light as to

undermine confidence in the verdict.” Strickler v. Greene, 527

U.S. 263, 290 (1999) (quoting Kyles v. Whitley, 514 U.S. 419, 435

(1995)); see also United States v. Williams, 50 MJ 436, 440

(1999). At issue in this case is a statement made by Mr.

Bernstein, a government witness, upon learning that he had been

subpoenaed, that he would “testify for the defense, and tell the

court everything was made up.” Defense Appellate Exhibit E.

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The failure to disclose Mr. Bernstein’s statement was not

material, as I show below, and would not “undermine confidence in

the verdict.” See Strickler, supra. Assuming arguendo that

Bernstein had indeed invented the entirety of his testimony, his

fabrications would not have affected the credibility of the

victims. First of all, Mr. Bernstein had no connection with the

two military victims. Also, appellant was acquitted of the

charges involving two civilian victims, Bennett and Sweeney,

supposedly in Mr. Bernstein’s “control.” While appellant was

convicted of charges related to the third civilian victim,

Welton, Mr. Bernstein had minimal contact with him; Welton

discussed the allegations with his father, never with

Mr. Bernstein. See Quintanilla, 52 MJ at 841.

3