UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
CAMPANELLA, HERRING and WOLFE
Appellate Military Judges
UNITED STATES, Appellee
v.
Private First Class KARINA FLORES-SANTOS
United States Army, Appellant
ARMY 20140066
Headquarters, III Corps and Fort Hood
Wade N. Faulkner, Military Judge (trial)
Jacob D. Bayshore, Military Judge (DuBay)
Colonel Richard W. Rousseau, Staff Judge Advocate (pretrial)
Colonel Ian G. Corey, Staff Judge Advocate (post-trial)
Lieutenant Colonel Joseph M. Fairfield, Acting Staff Judge Advocate (DuBay)
For Appellant: Lieutenant Colonel Charles Lozano, JA; Major Andres Vazquez, Jr.,
JA; Major Daniel E. Goldman, JA (on brief); Colonel Mary J. Bradley, JA; Major
Andres Vazquez, Jr, JA; Major Daniel E. Goldman, JA (on motion for
reconsideration and suggestion for reconsideration en banc).
For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie, III,
JA; Major Daniel D. Derner, JA; Captain Christopher A. Clausen, JA (on brief).
24 April 2017
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SUMMARY DISPOSITION ON FURTHER REVIEW
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CAMPANELLA, Senior Judge:
A general court-martial composed of a military judge sitting alone convicted
appellant, consistent with her pleas, of attempted distribution of a controlled
substance, conspiracy to distribute a controlled substance, introduction of marijuana,
distribution of a controlled substance, and wrongful use of cocaine in violation of
Articles 80, 81, and 112a of the Uniform Code of Military Justice, 10 U.S.C. §§ 880,
881, 912a (2012) [hereinafter UCMJ]. The convening authority approved the
adjudged sentenced of a bad-conduct discharge, ten months confinement, and
reduction to the grade of E-1.
FLORES-SANTOS—ARMY 20140066
On 8 June 2016 this court summarily affirmed the findings and sentence in
this case. United States v. Flores-Santos, ARMY 20140066 (Army Ct. Crim. App. 8
Jun. 2016) (summ. disp.). On 7 July 2016 appellant filed a motion for
reconsideration and a suggestion for reconsideration by the court en banc. We
granted the motion for reconsideration and again affirmed the findings and sentence.
United States v. Flores-Santos, ARMY 20140066 (Army Ct. Crim. App. 29 Jul.
2016) (mem. op.).
Our superior court set aside our decision and remanded appellant’s case for a
hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967),
to make findings of fact and conclusions of law related to the matter underlying the
granted issue, which was:
WHETHER THE MILITARY JUDGE WAS
DISQUALIFIED FROM PRESIDING IN APPELLANT’S
CASE WHERE HE PREVIOUSLY SERVED AS CHIEF
OF JUSTICE AND SUPERVISED ALL PROSECUTIONS
FOR APPELLANT’S UNIT, AND HE FAILED TO
DISCLOSE THE FULL EXTENT OF HIS
RESPONSIBILITIES AND ACTIONS FROM HIS PRIOR
POSITION, INCLUDING CONSULTING ON CASES AT
THE PRE-PREFERRAL AND INVESTIGATION STAGE.
United States v. Flores-Santos, 76 M.J. 42 (C.A.A.F. 2016).
The DuBay hearing was conducted on 6 March 2017 and the military judge
made findings of fact and conclusions of law in his Ruling on DuBay Issue
Regarding Military Judge’s Qualification. (App. Ex. XIII). We hereby adopt his
findings of fact and conclusions of law. We agree that Lieutenant Colonel (LTC)
(Ret.) Faulkner:
[W]as not disqualified under [Rule for Courts-Martial
(hereinafter RCM)] 902(b) as he was not “counsel” in this
case, and that even though Appellant waived any issues
regarding [R.C.M.] 902(a) disqualification, when
considering the trial as a whole, a reasonable person
would not question the partiality of LTC (Ret.) Faulkner.
Even if this Court were to presume that [R.C.M.] 902(a)
was violated and that Appellant did not waive that issue,
this Court finds no material prejudice to Appellant or
other facts that necessitate a re-hearing to ensure the
public retains confidence in the military justice system.
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FLORES-SANTOS—ARMY 20140066
CONCLUSION
For the reasons stated previously, the findings of guilty and the sentence are
AFFIRMED.
Judge HERRING and Judge WOLFE concur.
FOR THE
FOR THE COURT:
COURT:
MALCOLM
MALCOLM H. H. SQUIRES,
SQUIRES, JR.
JR.
Clerk of Court
Clerk of Court
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