(dissenting):
I disagree with the majority’s abuse of discretion approach to this case. Instead, I would hold that Judge Dorman erred in failing to recuse himself. In my view, federal law required recusal in this case, and Judge Dorman had no discretion to formulate his own recusal policy in derogation of those statutory provisions. See United States v. Ampriester, 37 F.3d 466, 467 (9th Cir.1994). More particularly, his recusal was required by 28 USC § 455(b)(3) (prior government employment disqualification) and 28 USC § 455(a) (“impartiality might reasonably be questioned” disqualification).
Turning first to 28 USC § 455(b)(3), I find that Congress, not Judge Dorman, has drawn the line concerning this judicial disqualification. It has stated:
§ 455. Disqualification of justice, judge, or magistrate
(a) Any justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonable be questioned.
(b) He shall also disqualify himself in the following circumstances:
(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;
(Emphasis added.)
It is undisputed in this ease that Judge Dorman in his earlier governmental employment was the Director of the Appellate Government Division when appellant began his appeal at the Court of Criminal Appeals. See Article 70, UCMJ, 10 USC § 870; RCM 1202, Manual for Courts-Martial, United States (1995 ed.). Thus, when appellant filed his appeal, Judge Dorman was in charge of the government prosecution team that was responsible for the opposition to appellant’s appeal.1 It is this role (of the then Colonel Dorman), with its official responsibilities with regard to this case as the senior officer and branch chief of the prosecution team, that mandatorily disqualified him from deciding this case when he was transferred to the Court of Criminal Appeals. See United States v. Arnpriester, supra (knowledge and acts of his assistants strictly imputed to U.S. Attorney); United States v. Siders, 17 MJ 986, 987 (ACMR 1984) (head of appellate government division disqualified from doing subsequent judge advocate review); cf. United States v. Hurt, 9 USCMA 735, 752-54, 27 CMR 3, 20-22 (1958) (board of review judge assigned as government appellate lawyer after decision reached but before published not disqualified).
In addition, the general statutory standard for judicial recusal is whether the judge’s impartiality “might reasonably be ques*208tioned.” 28 USC § 455(a). The Supreme Court has further explained that “what matters” in making an objective determination of recusal under § 455(a) is “not the reality of bias or prejudice but its appearance.” Liteky v. United, States, 510 U.S. 540, 548, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994).
Accordingly, there was a prima facie appearance of a conflict of interest in this case. When appellant’s case was filed in the Navy-Marine Corps Court of Criminal Appeals, Colonel Dorman was the de jure leader of the prosecution team;2 and, at the time of the Court of Criminal Appeals’ resolution of appellant’s case, Judge Dorman was the author of the Court’s decision. In my view, a reasonable person would question the impartiality of this appellate judge.3 See United States v. Arnpriester, supra.
This case should be remanded to the Court of Criminal Appeals for a new judicial review under Article 66, UCMJ, 10 USC § 866. This judicial remand is a small price to pay to insure all parties on appeal that they will have their cases heard in a system where the judges are free of even the appearance of a statutory conflict of interest.
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. I disagree with the majority’s view of the nature of the Chief of the Appellate Government Division position and have attached as support for my view the web page of the Appellate Government Division, Office of the Judge Advocate General, United States Navy. See http://www.jag.navy.mil/html/headquarters.htm.
. Id.
. In United States v. Mitchell, 39 MJ 131, 144 n. 7 (CMA 1994), this Court applied a "de novo” standard of review, imparting no discretion to the trial judge.