United States v. Sergeant, 2016 CCA LEXIS 652

Background

At a special court-martial, SSgt David W. Turner II was convicted, contrary to his pleas, of two specifications of abusive sexual contact; sentence: bad-conduct discharge, 45 days confinement, reduction to E-3.
On trial morning the military judge held an R.C.M. 802 conference with trial counsel and defense counsel (SVC absent) and then met privately in chambers with the Special Victims’ Counsel (SVC) for under five minutes; the parties were not present for that meeting.
During the in-chambers meeting the SVC raised the termination of his client’s pretrial interview by defense counsel; the military judge summarized the meeting on the record but omitted that detail; post-trial the judge gave feedback to counsel that revealed more about the interview issue.
Defense moved post-trial, alleging unlawful ex parte communications; the original military judge recused from the Article 39(a) post-trial session; the original judge, the SVC, and appellant testified at the session before a new judge.
Court of Criminal Appeals found the in-chambers meeting between the judge and SVC constituted a proscribed ex parte substantive communication but concluded, after applying Quintanilla factors, that the communication did not require sua sponte disqualification and did not constitute unlawful command/influence that prejudiced appellant.
The court reviewed legal and factual sufficiency de novo, found the military judge’s written special findings adequate, and affirmed findings and sentence.

Issues

Issue	Appellant's Argument	Government's Argument	Held
Whether the military judge should have sua sponte recused for ex parte communications with the SVC	The judge’s private chambers meeting with the SVC about a victim’s terminated pretrial interview created an appearance of bias and required disqualification	The communication was administrative, brief, and did not involve substantive favoritism; any error was not material or prejudicial	Communication was proscribed but, under Quintanilla factors, judge did not abuse discretion by not sua sponte recusing; no reasonable observer would doubt fairness
Whether the SVC’s conduct or the chambers meeting constituted unlawful command influence or unlawful influence under Article 37	The SVC attempted to influence the judge and/or acted with command-like authority, creating appearance of unlawful influence	SVC represented a victim (participant), did not speak for command, and asked only whether a defense motion had been filed; no intent or effect to influence findings/sentence	Appellant failed to produce some evidence of unlawful command/influence; Government rebutted beyond reasonable doubt that any influence affected findings/sentence
Whether the evidence was legally and factually sufficient to sustain convictions	Evidence was insufficient to prove sexual contact and intent beyond a reasonable doubt	Military judge’s detailed written findings support that elements were proved; testimony and inferences support convictions	Both legal and factual sufficiency satisfied; convictions affirmed

Key Cases Cited

Quintanilla v. United States, 56 M.J. 37 (C.A.A.F.) (factors for assessing ex parte communications and disqualification)
Burton v. United States, 52 M.J. 223 (C.A.A.F.) (objective test for judge impartiality)
Wright v. United States, 52 M.J. 136 (C.A.A.F.) (constitutional right to impartial judge)
Ayers v. United States, 54 M.J. 85 (C.A.A.F.) (appearance of unlawful command influence can be as damaging as actual influence)
Lewis v. United States, 63 M.J. 405 (C.A.A.F.) (test for appearance of unlawful command influence)
Salyer v. United States, 72 M.J. 415 (C.A.A.F.) (standard of review for unlawful command influence)
Stombaugh v. United States, 40 M.J. 208 (C.M.A.) (unlawful influence principles and burden shifting)
Biagase v. United States, 50 M.J. 143 (C.A.A.F.) (Government’s burden to rebut unlawful influence allegations)
Washington v. United States, 57 M.J. 394 (C.A.A.F.) (de novo review of factual and legal sufficiency)
Turner v. United States, 25 M.J. 324 (C.M.A.) (tests for legal and factual sufficiency)