United States v. Butcher , 56 M.J. 87 ( 2001 )

UNITED STATES, Appellee
v.
Donna L. BUTCHER, Captain
U.S. Air Force, Appellant
No. 00-0632
Crim. App. No. 33519
United States Court of Appeals for the Armed Forces
Argued April 17, 2001
Decided October 19, 2001
EFFRON, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., and GIERKE, J., joined. BAKER, J., filed an
opinion concurring in part and in the result. SULLIVAN, S.J.,
filed an opinion concurring in part, dissenting in part, and
concurring in the result.
Counsel
For Appellant: Captain Karen L. Hecker (argued); Colonel James R. Wise and
Lieutenant Colonel Timothy W. Murphy (on brief).
For Appellee: Lieutenant Colonel William B. Smith (USAFR) (argued); Colonel
Anthony P. Dattilo, Major Lance B. Sigmon, and Captain Christa S. Cothrel (on
brief); Lieutenant Colonel Ronald A. Rodgers and Major Bryan T. Wheeler.
Amicus Curiae supporting appellant: Dwight H. Sullivan (Supervising
Attorney), Eugene R. Fidell, Bianca Micaela Yuchengco Locsin (Law Student),
and Dean Kawamoto (Law Student) (on brief) - For the National Institute of
Military Justice.
Military Judge: J. Jeremiah Mahoney
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. Butcher, No. 00-0632/AF
Judge EFFRON delivered the opinion of the Court.
A general court-martial composed of officer members
convicted appellant, contrary to her pleas, of willful
dereliction of duty, making a false official statement, wrongful
possession of a controlled substance, and larceny, in violation
of Articles 92, 107, 112a, and 121, Uniform Code of Military
Justice, 10 USC §§ 892, 907, 912a, and 921, respectively. She
was sentenced to dismissal. The convening authority approved
the sentence as adjudged, and the Court of Criminal Appeals
affirmed the findings and sentence in a published opinion. 53
M.J. 711 (2000).
On appellant’s petition, we granted review of the following
issues:
I. WHETHER THE MILITARY JUDGE’S DECISION TO
NOT DISQUALIFY HIMSELF FROM APPELLANT’S COURT-
MARTIAL SHOULD BE REVIEWED ON APPEAL DE NOVO
OR AS AN ABUSE OF DISCRETION.
II. WHETHER APPELLANT’S DUE PROCESS RIGHTS TO
A FAIR TRIAL UNDER THE CONSTITUTION AND
RECUSAL STATUTES WERE VIOLATED WHEN HER CASE
WAS HEARD, OVER HER OBJECTION, BY A MILITARY
JUDGE WHOSE SOCIAL CONTACT WITH TRIAL COUNSEL
BEFORE AND DURING APPELLANT’S COURT-MARTIAL
OCCURRED UNDER CIRCUMSTANCES THAT WOULD CAUSE
A REASONABLE PERSON WITH KNOWLEDGE OF ALL THE
APPLICABLE FACTS TO HAVE A REASONABLE DOUBT
REGARDING THE MILITARY JUDGE’S IMPARTIALITY
AND WHETHER APPELLANT RECEIVED A FAIR TRIAL.
III. WHETHER THE AIR FORCE COURT ERRED BY
FAILING TO DISMISS CHARGE II AND ITS
SPECIFICATION (WRONGFUL POSSESSION OF PERCOCET
2
United States v. Butcher, No. 00-0632/AF
TABLETS) AND CHARGE III AND ITS SPECIFICATION
(WILLFUL DERELICTION OF DUTY BY OBTAINING
PERCOCET TABLETS WITHOUT AUTHORIZATION) AS AN
UNREASONABLE MULTIPLICATION OF CHARGES AFTER
APPELLANT WAS CONVICTED OF CHARGE I AND ITS
SPECIFICATION (LARCENY OF THE SAME PERCOCET
TABLETS) WHEN NO EVIDENCE INDICATED THAT
APPELLANT POSSESSED THE PERCOCET TABLETS AFTER
SHE SUPPOSEDLY STOLE THEM BY OBTAINING THEM
WITHOUT PROPER AUTHORIZATION.
For the reasons set forth below, we affirm.
I. DISQUALIFICATION OF THE MILITARY JUDGE
A. BACKGROUND
Appellant’s trial took place on various dates between June
22 and July 8, 1998. By Thursday, July 2, the parties concluded
their presentations on findings, and completed their discussion
of instructions on findings with the military judge. At the
close of the proceedings on July 2, the court-martial recessed
through the Fourth of July weekend and resumed on Monday, July
6.
On Friday, July 3, the military judge attended a party to
which all attorneys in the judicial circuit had been invited.
The invitation, posted on June 17, invited the attorneys to a
party “To Promote Peace, Love, and Harmony Among Trial & Defense
Counsel in the Greater San Antonio Metropolitan Area. Yeah,
Right!” 53 M.J. at 712. The party, which was at the home of the
trial counsel in this case, also served as an informal farewell
for trial counsel and his wife, who planned to leave the area by
3
United States v. Butcher, No. 00-0632/AF
the end of the month. Attendance at the party was estimated to
peak at 40 people, including many counsel and friends of trial
counsel’s wife. Several defense counsel attended. Appellant’s
defense counsel declined to attend in view of a circuit defense
counsel policy prohibiting social activities with opposing
counsel during an ongoing trial.
The military judge and his wife attended the party for
about 2 hours and spoke to several judge advocates. The
conversation did not extend to appellant’s court-martial except
for a comment by the military judge that the trial had lasted
longer than anticipated. During one of these conversations, the
military judge was invited to play tennis the next morning with
a couple preparing for a doubles tournament. At the suggestion
of another guest, the military judge agreed to have trial
counsel as his doubles partner.
On Saturday, July 4, the military judge and trial counsel
played a practice match against the couple that was preparing
for the tournament. The match, which lasted less than 2 hours,
included brief conversations about tennis and other social
subjects. Appellant’s court-martial was not discussed. On
Monday morning, July 6, the court-martial resumed with closing
arguments and instructions on findings. That afternoon, trial
defense counsel learned of the judge’s participation in the
social and athletic events of the weekend from another defense
4
United States v. Butcher, No. 00-0632/AF
counsel who had attended the party. The following day, while
the members deliberated on findings, the defense moved to
disqualify the military judge and also moved for a mistrial,
citing the events of the weekend.
During an Article 39(a), UCMJ, 10 USC § 839(a), session,
defense counsel argued that the judge’s participation in social
and athletic events with trial counsel in the midst of the
court-martial created an “appearance of impropriety” requiring
disqualification under RCM 902(a), Manual for Courts-Martial,
United States (2000 ed.).1 Defense counsel stated that she knew
the judge had played tennis with trial counsel in the past, but
said that the timing of the party and tennis game made a
difference in the present case.
The military judge disclosed the facts and circumstances
concerning his attendance at the party and tennis match. He
stated that he was an avid tennis player who would play “with
anyone” and would never discuss cases during matches. He also
observed that while he did not “believe” that his actions had
been “inappropriate,” he would “keep an open mind on the
subject.” He advised the parties that they could submit briefs
on the matter, and he would defer a final ruling.
1
Defense counsel also alleged that eye contact between the judge and trial
counsel during trial constituted “nonverbal” communication that violated RCM
902(a), but appellant has not pursued that basis for disqualification on
appeal.
5
United States v. Butcher, No. 00-0632/AF
About an hour after the Article 39(a) session on the motion
had ended, the members completed their deliberations, finding
appellant guilty of the charged offenses. Shortly after
findings were announced, the military judge stated that he had
“consulted with other judges” and was certain that the
socializing did not raise a reasonable doubt about his
impartiality. He added that he would prepare written findings
and issue a ruling after the trial had been completed.
Subsequently, a post-trial session was held where defense
counsel submitted a written brief, and the matter was discussed
further. After this session, the Government filed a reply.
On October 30, 1998, nearly 4 months after the sentence was
adjudged, the military judge denied the defense motion for a
mistrial in a 14-page written ruling attached to the
authenticated record. In addition to reiterating the facts
concerning his actions during trial, the military judge
criticized defense counsel for having a discussion with
appellant about the military judge’s out-of-court activities.
The military judge also used the occasion to set forth his
personal views on a wide range of subjects, including standards
of conduct, social norms, attitudes of counsel, appellate
courts, trends in military law, and military life in general.
With respect to his interaction with trial counsel, the military
judge concluded that a reasonable person would not infer a
6
United States v. Butcher, No. 00-0632/AF
personal relationship or other impact on his impartiality during
trial as a result of the weekend’s activities.
B. DISQUALIFICATION UNDER RCM 902(a)
“An accused has a constitutional right to an impartial
judge.” United States v. Wright, 52 M.J. 136, 140 (1999), citing
Ward v. Village of Monroeville, 409 U.S. 57 (1972); Tumey v.
Ohio, 273 U.S. 510 (1927). The neutrality required by
constitutional due process
helps to guarantee that life, liberty, or
property will not be taken on the basis of
an erroneous or distorted conception of the
facts or the law. At the same time, it
preserves both the appearance and reality of
fairness, “generating the feeling, so
important to a popular government, that
justice has been done,” by ensuring that no
person will be deprived of his interests in
the absence of a proceeding in which he may
present his case with assurance that the
arbiter is not predisposed to find against
him.”
Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980)(citations
omitted).
Article 26(d), UCMJ, 10 USC § 826(d), provides that “[n]o
person is eligible to act as military judge in a court-martial
if he [or she] is the accuser or a witness for the prosecution
or has acted as investigating officer or a counsel in the same
case.” The President has supplemented Article 26 with RCM 902,
"Disqualification of military judge," which is based on the
7
United States v. Butcher, No. 00-0632/AF
statute on disqualification of federal judges in civilian
proceedings, 28 USC § 455. See Analysis of Rules for Courts-
Martial, Manual, supra at A21-50. RCM 902(a) governs appearance
of bias, and RCM 902(b) governs specific disqualifying
circumstances. The present appeal concerns RCM 902(a), which
invokes the following provisions in 28 USC § 455(a):
Any justice, judge, or magistrate of the
United States shall disqualify himself in
any proceeding in which his impartiality
might reasonably be questioned.
This section was enacted to maintain public confidence in
the judicial system by avoiding “even the appearance of
partiality.” See Liljeberg v. Health Services Acquisition
Corp., 486 U.S. 847, 860 (1988). The appearance standard helps
to enhance confidence in the fairness of the proceedings because
in matters of bias, the line between appearance and reality is
often barely discernible. See RICHARD E. FLAMM, JUDICIAL
DISQUALIFICATION - RECUSAL AND DISQUALIFICATION OF JUDGES § 5.4.1 (1996);
Liteky v. United States, 510 U.S. 540, 565 (1994)(Kennedy, J.,
concurring in the judgment)(“In matters of ethics, appearance
and reality often converge as one.”).
“The decision of a military judge” on the issue of recusal
“is reviewed on appeal for abuse of discretion.” United States
v. Norfleet, 53 M.J. 262, 270 (2000). See S. CHILDRESS & M. DAVIS,
FEDERAL STANDARDS OF REVIEW § 12.05 n. 8 (3rd ed. 1999)(listing
8
United States v. Butcher, No. 00-0632/AF
circuits which apply the abuse of discretion standard). The
Seventh Circuit is the only federal circuit to apply a de novo
standard and appellant asks us to do likewise.2 Appellant has
not persuaded us that there is any reason based in law or policy
to depart from precedent on this point and adopt the minority
position on the standard of review.
In the course of reviewing the military judge’s ruling
under RCM 902(a) for abuse of discretion, we consider the facts
and circumstances under an objective standard. “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 M.J. 40, 50
(CMA 1982), quoting E. Thode, REPORTER’S NOTES TO CODE OF JUDICIAL
CONDUCT 60 (1973); Wright, 52 M.J. at 141.
Our Court has emphasized that the appearance standard does
not require judges to live in an environment sealed off from the
outside world. For example, in the context of addressing
relationships between the military judge and participants in a
trial, we have noted:
"Judges have broad experiences and a wide
array of backgrounds that are likely to
2
The Seventh Circuit reviews §455(a) issues de novo. In re Hatcher, 150 F.3d
631, 637 (7th Cir. 1998). The Eighth Circuit has questioned what the proper
standard is in that circuit, noting that prior decisions used de novo or
abuse of discretion standards. Holloway v. United States, 960 F.2d 1348,
1351 n. 8 (8th Cir. 1992).
9
United States v. Butcher, No. 00-0632/AF
develop ties with other attorneys, law
firms, and agencies.” Personal
relationships between members of the
judiciary and witnesses or other
participants in the court-martial process do
not necessarily require disqualification.
Norfleet, 53 M.J. at 269-70, quoting Wright, 52 M.J. at 141. See
also United States v. Hamilton, 41 M.J. 32, 38-39 (CMA 1994).
The interplay of social and professional relationships in
the armed forces poses particular challenges for the military
judiciary. Both before and after service in the judiciary, a
judge advocate typically will serve in a variety of assignments
as a staff attorney and supervisor. Such assignments normally
include duties both within and outside the field of criminal
law. In the course of such assignments, the officer is likely
to develop numerous friendships as well as patterns of social
activity. These relationships are nurtured by the military’s
emphasis on a shared mission and unit cohesion, as well as
traditions and customs concerning personal, social, and
professional relationships that transcend normal duty hours.
When assigned to the judiciary, the military judge frequently
will find himself or herself in close and continuing contact
with judge advocates outside the courtroom. It is not unusual
for judges and counsel to be invited to the same professional
and social functions. An additional challenge in the military
environment is the grade structure. Members of the judiciary
10
United States v. Butcher, No. 00-0632/AF
typically outrank counsel and may have served in a direct
superior-subordinate relation to counsel in the past – or may be
placed in such a relationship in the future. In light of these
circumstances, members of the military judiciary must be
particularly sensitive to applicable standards of judicial
conduct.
The military services have promulgated regulations that
provide guidance to military judges as they seek to maintain
both the reality and appearance of impartiality in the face of
these circumstances. The Air Force, for example, has
established the UNIFORM CODE OF JUDICIAL CONDUCT FOR MILITARY TRIAL AND
APPELLATE JUDGES to regulate judicial conduct. Canon 4A(1)
admonishes judges to conduct “extra-judicial activities so that
they do not . . . cast reasonable doubt on the judge’s capacity
to act impartially as a judge[.]” The CODE OF CONDUCT FOR UNITED
STATES JUDGES, applicable to federal judges and specifically
adopted by this Court, contains similar provisions regarding the
maintenance of impartiality, dignity, and decorum in
proceedings. See, e.g., Canon 2A commentary, CODE OF CONDUCT FOR
UNITED STATES JUDGES (1999) (“A judge must expect to be the subject
of constant public scrutiny . . . [and] must therefore accept
restrictions that might be viewed as burdensome by the ordinary
citizen and should do so freely and willingly.”)
11
United States v. Butcher, No. 00-0632/AF
The Air Force standards, which are patterned after the
guidance applicable to civilian judges, consist of general
principles rather than detailed situational restrictions. Like
their civilian counterparts, these regulations do not include an
absolute ban on contact between judges and counsel outside the
courtroom.
A judge may be subject to administrative sanctions for
conduct inconsistent with these standards. See RCM 109(a). As
in civilian life, activity inconsistent with standards of
judicial conduct does not mandate recusal unless it rises to the
level of a violation of applicable disqualification standards.
See RCM 902.
A determination that the 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 the military judge should have removed himself
or herself from a case. See, e.g., Liljeberg, supra 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 conviction or
decision is warranted as a remedy when a judge has erred in
failing to recognize that disqualification was required because
the judge’s impartiality might reasonably be questioned:
12
United States v. Butcher, No. 00-0632/AF
We conclude that . . . it is appropriate to
consider [1] the risk of injustice to the
parties in the particular case, [2] the risk
that denial of relief will produce injustice
in other cases, and [3] 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 quotation marks omitted).
C. DISCUSSION
Appellant contends that the actions of the military judge
violated applicable standards of judicial conduct and that the
military judge should have disqualified himself under RCM 902.
The Government takes the position that even if the military
judge’s actions violated applicable standards of conduct, the
military judge did not abuse his discretion in rejecting the
defense motion to recuse himself under the particular facts of
this case. In the alternative, the Government argues that even
if the military judge erred, the error was not prejudicial.
In its brief before our Court, the Government makes it
clear that “the United States neither expects nor asks this
Court to put its stamp of approval” on the military judge’s
actions, and we shall not do so. Instead, we shall assume,
without deciding, that the military judge should have recused
13
United States v. Butcher, No. 00-0632/AF
himself and ask whether his failure to do so requires reversal
under the standards set forth by the Supreme Court in Liljeberg.
The first Liljeberg factor requires consideration of “the
risk of injustice to the parties.” In the present case, any
risk of injustice was considerably diminished because events
giving rise to the disqualification motion occurred near the end
of trial, after the presentation of evidence and discussion of
instructions on findings. The military judge was not called
upon to exercise discretion on any matter of significance
concerning findings after that point. Moreover, because
appellant was sentenced by a panel, the military judge’s
subsequent participation in the trial was limited to
instructions and rulings during the sentencing proceedings. His
actions in that regard were few in number and not adverse to
appellant.3 We also note that appellant received one of the
sentence alternatives requested by defense counsel and that the
members rejected the more severe punishment argued for by trial
counsel. The suggestion in his written opinion, issued 4 months
after trial, that defense counsel should not have discussed the
military judge’s conduct with appellant, is erroneous, but does
not establish grounds for reasonably questioning the military
3
The defense did not challenge any of the Government’s evidence at sentencing
and the two rulings made by the judge favored appellant by excluding
Government evidence or modes of argument.
14
United States v. Butcher, No. 00-0632/AF
judge’s impartiality during trial. In light of these factors,
we conclude that any concerns about the impartiality of the
military judge did not pose a “risk of injustice to the
parties.”
The second Liljeberg factor concerns “the risk that denial
of relief will produce injustice in other cases.” We note again
that the Government has not asked us to endorse the military
judge’s conduct or his written opinion. Based on our collective
experience and our review of thousands of records of trial, we
note that as a general matter, members of the military
judiciary, like their civilian counterparts, are highly
sensitive to the problems posed by out-of-court contacts with
counsel for one party in the midst of litigation. It is not
necessary to reverse the results of the present trial in order
to ensure that military judges exercise the appropriate degree
of discretion in the future.
The third Liljeberg factor considers “the risk of
undermining the public’s confidence in the judicial process.”
The present case does not involve intimate personal
relationships, extensive interaction, conduct bearing on the
merits of the proceedings, or other factors that could undermine
the basic fairness of the judicial process. As we noted in
connection with the first factor, the conduct at issue came late
in the trial, well after the military judge had completed his
15
United States v. Butcher, No. 00-0632/AF
essential rulings on matters that divided the parties in this
litigation. Under those circumstances, we conclude that the
reversal of appellant’s conviction is not required to avoid
undermining the public’s confidence in the judicial process.
II. UNREASONABLE MULTIPLICATION OF CHARGES
Appellant also claims that the lower court erred by failing
to dismiss Charge II (wrongful possession of percocet) and
Charge III (willful dereliction of duty by obtaining percocet
without authorization), as an unreasonable multiplication of
charges after appellant was convicted of the larceny of the
percocet. Appellant raised this issue for the first time on
appeal at the court below.
The Discussion accompanying RCM 307(c)(4) explains that
"[w]hat is substantially one transaction should not be made the
basis for an unreasonable multiplication of charges against one
person." On appeal, the issue of unreasonable multiplication of
charges involves the duty of the Courts of Criminal Appeals to
“affirm only such findings of guilty, and the sentence . . . as
it . . . determines, on the basis of the entire record, should
be approved.” Art. 66(c), UCMJ, 10 USC § 866(c). This highly
discretionary power includes the power to determine that a claim
of unreasonable multiplication of charges has been waived or
forfeited when not raised at trial. The lower court concluded
16
United States v. Butcher, No. 00-0632/AF
that appellant forfeited this issue by not raising it at trial,
and appellant has not demonstrated any specific circumstances
that would lead us to conclude that the lower court abused its
considerable discretion in the present case.
III. CONCLUSION
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
17
United States v. Butcher, No. 00-0632/AF
BAKER, Judge (concurring in part and in the result):
I agree with the majority on Issues I and III. I
agree with the majority’s legal framework on Issue II.
And, I agree with the majority’s distinction between
questions of public appearance and questions of actual
bias. This case does not test or question the military
judge’s personal integrity. This case is about public
perceptions of the military justice system, as appreciated
through application of RCM 902(a), which is based on 28 USC
§ 455(a). Applying this law, the majority opinion assumes,
but does not decide, that the military judge should have
recused himself.
Applying the legal test for appearance of partiality
under § 455(a), I believe a reasonable person with
knowledge of all the facts1 would reasonably question the
impartiality of the military judge in this case based on
the interplay of 3 conjunctive factors. First, during
trial the military judge attended trial counsel’s party
where he stayed for 2 hours; he did not just stop by.
Second, and more importantly, during trial he teamed up
with trial counsel in a tennis match. And, third, when the
judge issued his written response to defense counsel’s
1
United States v. Wright, 52 M.J. 136, 141 (1999).
1
United States v. Butcher, No. 00-0632/AF
recusal motion, he suggested that the accused exhibited
paranoid traits for questioning the judge’s impartiality,2
that defense counsel had withheld information from his
client,3 and questioned defense counsel’s motives for
seeking recusal.4
Defense counsel was understandably unwilling to
embrace the judge’s description of trial counsel as a piece
of sporting equipment.5 Looking at the precipitating events
and the judge’s written response to those events, I
conclude that a reasonable person knowing these facts would
reasonably question the impartiality of the judge. In the
2
“Not all accused show paranoid traits, but it is important to remember
that their trial is probably the most significant event going on in
their lives, so that if they see a prosecutor speak privately to a
judge, or a court member converse with a bystander, their first
assumption is that the conversation must concern their trial.”
Essential Findings and Ruling on Defense Motion for Recusal and
Mistrial, 30 October 1998, at 8 n. 13.
3
“It is also possible that she would feel betrayed by the fact that some
of the information now being asserted against the judge had previously
been withheld from her by her own counsel.” Essential Findings at 9.
4
“It has been disclosed that one of the defense counsel present at this
party communicated the fact of my attendance and the fact of the tennis
match to the accused's counsel. Apparently he felt compelled to and
apparently the accused’s counsel felt compelled to advise the accused,
and apparently they left the determination of whether to make this
motion with the accused. In a real-world environment, one might
question this chain of events, but the everyday reality in today’s
military is that appellate defense counsel make their career second
guessing trial level defense counsel, and military appellate courts
order DuBay hearings based upon bizarre, meritless, and unsupported
allegations.” Essential Findings at 11-12.
5
“However tennis as a sport is hardly a social activity, or even a
sport involving camaraderie. It is simply a competition in which the
opponent (or the partner in doubles) is an essential piece of
equipment.” Essential Findings at 4 n. 7.
2
United States v. Butcher, No. 00-0632/AF
interest of public confidence in the military justice
system, we should say as much.
Nonetheless, I agree with the majority that, applying
the Liljeberg factors, the decision below in this case need
not be reversed. I obviously do not agree with the
majority’s application of the third factor (the risk of
undermining the public’s confidence in the judicial
process). In my view, most members of the public would be
surprised, if not stunned, to learn that a trial judge was
socializing with and playing tennis with trial counsel
during trial. Learning later that the judge considered it
appropriate to play tennis with counsel, but that the
situation would probably be different if the judge had
dinner with counsel or went fishing with counsel would not
assuage this surprise.6 “[J]ustice must satisfy the
appearance of justice.” Liljeberg, 486 U.S. at 864
(internal quotation marks omitted). Questions of judicial
appearance may be particularly important in the military
justice system where trial judges wear government green and
blue and not just judicial black.
6
“Would the situation be different if the judge and his wife had gone
to dinner with the prosecutor and his wife during trial? Would the
situation be different if the judge and the prosecutor went on a
fishing trip during the trial? Probably in both cases the answer would
b[e] “yes,” because of the inherent recognition that such activities
are far more conducive to one-on-one personal conversations, and far
3
United States v. Butcher, No. 00-0632/AF
However, I agree with the majority’s analysis of the
first two Liljeberg factors involving the risk of injustice
in this case and in other cases. Among other things, the
question of recusal arose after closing argument and
instructions on findings were concluded. Moreover, this
was a trial before members and not before this judge alone.
Finally, appellant has not pointed to any particular
rulings by the military judge during sentencing, other than
that pertaining to recusal, that were adverse to appellant.
Nor is it clear whether the judge’s views expressed in his
October memorandum were also his views in July during the
sentencing portion of appellant’s trial. He had almost 4
months to think it over. Therefore, on balance, reversal
of the decision below is not required.
more indicative of a close personal friendship.” Essential Findings at
13-14 (footnote omitted).
4
United States v. Butcher, 00-0632/AF
SULLIVAN, Judge (concurring in part, dissenting in part, and
concurring in the result):
I agree with the majority that abuse of discretion is the
proper standard of review of a military judge’s recusal
decision.1 Although, I conclude that the military judge’s extra-
trial activities were imprudent, his refusal to recuse himself in
this case did not constitute error. Finally, I cannot accept the
finding of “waiver” of the unreasonable-multiplication-of-charges
claim nor will I join an opinion effectively granting the lower
courts equity-type powers under Article 66(c), UCMJ, 10 USC
§ 866(c). See United States v. Quiroz, 55 M.J. 334, 345 (2001)
(Sullivan, J., dissenting).
Recusal
The majority “assume[s], without deciding, that the military
judge should have recused himself and ask[s] whether his failure
to do so requires reversal under the standards set forth
1
In United States v. Mitchell, 39 M.J. 131, 144 n.7 (1994), we
assumed, without deciding, that a de novo standard of review was
applicable.
United States v. Butcher, 00-0632/AF
2
by the Supreme Court in Liljeberg.” ___ MJ at (14). Would not
a reasonable person consider it improper for a trial judge to
associate, even socially, with court-martial personnel during
trial? Whether it be with members of the prosecution, the
defense, or the military jury?3 See also Article 37, UCMJ, 10
USC § 837. Is it not appropriate for a judge to refrain from
being a recreational teammate of a prosecutor in tennis or golf
or other team sport during a trial? Nevertheless, full
disclosure by this military judge on the record of these fleeting
associations forestalled any need to recuse himself in this case.
United States v. Norfleet, 53 M.J. 262 (2000); United States v.
Wright, 52 M.J. 136 (1999).
2
Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847
(1988).
3
Quoting the Uniform Code of Judicial Conduct for Military
Trial and Appellate Judges, which applies to the Air Force:
CANON 2
A JUDGE SHALL AVOID IMPROPRIETY AND THE APPEARANCE OF
IMPROPRIETY IN ALL OF THE JUDGE’S ACTIVITIES.
A. A judge shall respect and comply with the law* and shall
act at all times in a manner that promotes public confidence in
the integrity and impartiality of the judiciary.
* * *
B. A judge shall not allow family, social, political or
other relationships to influence the judge’s judicial conduct or
judgment. A judge shall not lend the prestige of judicial office
to advance the private interests of the judge or others; nor
shall a judge convey or permit others to convey the impression
that they are in a special position to influence the judge. A
judge shall not testify voluntarily as a character witness.
2
United States v. Butcher, 00-0632/AF
The Court of Criminal Appeals did not find that the military
judge in this case abused his discretion to sit in this case.
See United States v. Butcher, 53 M.J. 711, 712, 714 (AF Ct. Crim.
App. 2000) (concluding “that a disinterested observer” with
knowledge of all “the facts would not believe the military judge
lacked impartiality or the trial” lacked fairness). Moreover,
our Court has refused to find an abuse of discretion solely based
on general allegations of systematic bias. See, e.g., United
States v. Norfleet, 53 M.J. 262, 271 (2000) (no error shown where
the convening authority was also military judge’s boss as head of
Air Force Legal Services Agency). Here, appellant did not allege
any actual bias as a result of the out-of-court contacts of the
judge and trial counsel. See R. 993 (defense counsel’s statement
that the military judge’s conduct “just casts doubt on the whole
trial”) and Appellate Exhibit XXV at 4 (noting in appellant's
* * *
CANON 4
A JUDGE SHALL CONDUCT THE JUDGE’S EXTRAJUDICIAL ACTIVITIES TO
MINIMIZE THE RISK OF CONFLICT WITH JUDICIAL OBLIGATIONS.
A. Extra-judicial Activities in General. A judge shall
conduct all of the judge’s extra-judicial activities so that they
do not:
(1) cast reasonable doubt on the judge’s capacity to act
impartially as a judge;
(2) demean the judicial office; or
(3) interfere with the proper performance of judicial
duties.
(Emphasis added).
3
United States v. Butcher, 00-0632/AF
recusal motion, “[w]hile there does not appear to be actual
impropriety . . . the fact that the party occurred at the tail
end of the findings portion of this trial does not save the case
from the appearance of injustice”). Under the special
circumstances of this case, I would hold that the imprudence of
the judge in playing tennis with one of the litigant’s counsel
during trial did not amount to per se impropriety that tainted
the judge’s role or the trial, especially given the functional
environment existing today for military judges. However, I would
urge that appropriate guidelines be strengthened to prohibit such
associations during a trial for the sake of appearances to the
general public as well as to the litigants.
In this case, the judge, to his credit, made extensive
statements and written findings on the record of both the quality
and nature of his informal contacts with trial counsel and any
impact that these contacts had on his judicial conduct. See R.
at 989-90; see generally Appellate Exhibit XXVIII. Additionally,
defense counsel had the opportunity in two different Article
39(a) hearings to question the military judge about these
activities. See R. at 986-95, 1038-42. In my view, the demands
of RCM 902(a) were satisfied by the judge’s actions in this case,
and his refusal to recuse himself did not constitute error under
our case precedents. See United States v. Norfleet and United
States v. Wright, both supra.
4
United States v. Butcher, 00-0632/AF
Findings of Guilty on Charges II & III
In addition, the lower court did not commit error by failing
to dismiss the wrongful-possession and dereliction-of-duty
charges after appellant was convicted of larceny. These charges
were not multiplicious. See United States v. Teters, 37 M.J. 370,
4
377 (CMA 1993) (applying the Blockburger separate-elements
test), cert. denied, 510 U.S. 1091 (1994). Dereliction of duty
and larceny clearly consist of separate elements and thereby
constitute separately punishable offenses. Compare para.
16(b)(3), Part IV, Manual for Courts-Martial, United States, 1984
(Article 92) with para. 46(b), Part IV, Manual, supra (Article
121) (e.g., duty element of Article 92 versus the wrongful-taking
element of Article 121). Wrongful possession and larceny
4
Blockburger v. United States, 284 U.S. 299, 304 (1932).
5
United States v. Butcher, 00-0632/AF
likewise consist of separate elements and are separately
punishable. Compare para. 37(b)(1), Part IV, Manual, supra
(Article 112a) with para. 46(b), Part IV, Manual, supra (Article
121) (e.g., controlled-substance element of Article 112a versus
the wrongful-taking element of Article 121).
The majority opinion does not engage in such legal analysis.
Instead, it reaffirms the “highly discretionary power [of the
lower court under Article 66(c)]. . . to determine that a claim
of unreasonable multiplication of charges has been waived or
forfeited. . . .” ___ MJ at (16). In light of the majority’s
continued inclination to find an equitable-type power in the
lower court, I again dissent and reaffirm my position in United
States v. Claxton, 32 M.J. 159, 165 (1991) (Sullivan, C. J.,
concurring in part and in the result). See United States v.
Quiroz, 55 M.J. at 345 (Sullivan, J., dissenting).
Accordingly, I join in the result reached by the majority and
vote to affirm this case.
6