Case Information
*1 CORRECTED COPY
UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
CONN, HOFFMAN and GIFFORD Appellate Military Judges UNITED STATES, Appellee* v.
Sergeant INEZ T. MARTINEZ, JR.
United States Army, Appellant** ARMY 20080699
Headquarters, Fort Carson Debra Boudreau, Military Judge (arraignment) Thomas Molloy, Military Judge (trial) Colonel Michael W. Meier, Staff Judge Advocate For Appellant: Captain Brent A. Goodwin, JA (argued); Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew M. Miller, JA; Major Bradley M. Voorhees, JA; Captain Brent A. Goodwin, JA (on brief); Colonel Mark Tellitocci, JA; Major Bradley M. Voorhees, JA; Captain Brent A. Goodwin, JA (on brief regarding specified issues).
For Appellee: Major Adam S. Kazin, JA (argued); Colonel Norman F. J. Allen III, Colonel, JA; Lieutenant Colonel Martha C. Foss, JA; Lieutenant Colonel Francis C. Kiley, JA; Major Karen J. Borgerding, JA (on brief); Colonel Norman F. J. Allen III, Colonel, JA; Lieutenant Colonel Martha C. Foss, JA; Major Adam S. Kazin, JA; Major Karen J. Borgerding, JA (on brief regarding specified issues).
7 October 2010 --------------------------------- OPINION OF THE COURT ---------------------------------
GIFFORD, Judge:
Appellant was charged with absence without leave and drunk on duty, in violation of Articles 86 and 112, Uniform Code of Military Justice (10 U.S.C. §§ 886 and 912) [hereinafter UCMJ]. A military judge, sitting as special court- martial convicted appellant, pursuant to his pleas, of absence without leave for more than thirty days and drunk on station, in violation of Articles 86 and 134, UCMJ, 10 U.S.C. §§ 886 and 934. The military judge sentenced appellant to a bad-conduct discharge, confinement for six months and reduction to the grade of Private E1. For the Specification of Charge II, the convening authority disapproved the finding of *Corrected
**Corrected
drunk on station, in violation of Article 134, UCMJ (10 U.S.C. § 934) and instead approved a finding of incapacitation for duty through the prior wrongful indulgence of alcohol [hereinafter "incapacitation for duty by reason of drunkenness"], in violation of Article 134, UCMJ, 10 U.S.C. § 934. The convening authority limited confinement to 164 days and otherwise approved the adjudged sentence.
In review before this court pursuant to Article 66(c), UCMJ, appellant raises two assignments of error, to-wit:
I.
WHETHER A REASONABLE PERSON WOULD QUESTION THE TRIAL JUDGE'S IMPARTIALITY WHEN A SENIOR MILITARY JUDGE, WHO APPEARED TO HAVE ASSISTED THE GOVERNMENT DURING TRIAL, ENTERED THE TRIAL JUDGE'S CHAMBERS DURING RECESS AND DELIBERATIONS, IN VIOLATION OF APPELLANT'S RIGHT TO DUE PROCESS.
II.
THE OMISSSION OF ANY REFERENCE TO THE SENIOR MILTARY JUDGE WHO APPEARED TO HAVE ASSISTED THE GOVERNMENT DURING TRIAL AND ENTERED THE TRIAL JUDGE'S CHAMBERS DURING RECESSES AND DELIBERATIONS MADE [THE] RECORD OF TRIAL SUBSTANTIALLY INCOMPLETE IN CONTRAVENTION OF [ARTICLE] 54(c), UCMJ, AND RULE FOR COURTS-MARTIAL 1103(b)(2)(B), AND WAS A SUBSTANTIAL ERROR.
For appellant's first assignment of error we assume, without deciding, that the
military judge committed plain error when he did not disqualify himself or obtain
waiver, under the provisions of Rule for Courts-Martial [hereinafter R.C.M.] 902(a),
based on his knowledge of the supervisory judge's contact with the trial counsel
regarding a request for recess
in tandem with
other facts of the case. We further
find, however, after review of this case under the factors set forth in
Liljeberg v.
Health Services Acquisition Corp
.,
Although not raised by appellant, we also find that the convening authority exceeded his authority under Article 60(c), UCMJ, and R.C.M. 1107(c), when he approved incapacitation for duty by reason of drunkenness for the Specification of Charge II. We grant relief in our decretal paragraph. We affirm the remaining findings and the sentence as reassessed. We briefly address this error and appellant's first assignment of error, although do so in reverse order.
I. IMPROPER CONVENING AUTHORITY ACTION
Background
In the Specification of Charge II, appellant was charged with being drunk on duty. Article 112, UCMJ. See also Manual for Courts-Martial, United States (2008 ed.). [hereinafter MCM ] , Part IV, para. 36a. Prior to trial, appellant entered into a pretrial agreement wherein he agreed, in exchange for a limitation on sentence, to plead guilty to "drunk on duty" to the Specification of Charge II.
At trial, for the specification of Charge II and Charge II, appellant entered a plea of guilty to "the named lesser-included offense of drunk on station" in violation of Article 134. The offense of drunk on station is listed in MCM, Part IV, para. 73. Neither the trial counsel nor the defense counsel objected to or commented upon appellant's plea to drunk on station. Prior to appellant's entry of pleas, the military judge commented on the record that the parties had discussed, at a R.C.M. 802 session, that appellant was changing his plea of guilty from Article 112 to Article 134 and "the [his] form of plea to the lesser-included offense." The record does not detail whether the R.C.M. 802 session specified which Article 134 offense appellant was pleading to, nor the form appellant’s plea would take. In noting corrections to the stipulation of fact, however, the military judge stated the words "drunk on duty" were amended to read "drunk on station."
After entry of pleas, the military judge acknowledged that appellant had “entered a plea of guilty to the crime of drunk on station." The military judge advised appellant, however, of the elements of a third offense: incapacitation for duty through the prior wrongful indulgence of alcohol. Article 134, UCMJ; MCM, Part IV, para. 76. During the ensuing providence inquiry, the colloquy between the military judge and appellant established appellant satisfied the elements for the offense of incapacitation for duty through the prior wrongful indulgence of alcohol. During the providence inquiry, the trial counsel twice asked the military judge to obtain additional information from appellant to ensure that a sufficient factual inquiry had been obtained to satisfy elements of the offense of incapacitation for duty by reason of drunkenness— i.e. , that appellant had been subject to the requirement to perform duties as an infantryman (MOS 11B) non-commissioned officer and that his conduct was prejudicial to good order and discipline in the Armed Forces or was of a nature to bring discredit upon the Armed Forces. When the military judge entered findings, however, he found appellant guilty of the offense to which he pled guilty—drunk on station.
In his written post-trial recommendation [hereinafter “PTR”] to the convening authority pursuant to R.C.M. 1106, for the Specification of Charge II, the staff judge advocate [hereinafter SJA] recommended the convening authority approve a finding of guilty for the Article 134, UCMJ, offense of incapacitation for duty through prior wrongful indulgence of alcohol. In responding to the SJA's PTR, neither appellant nor his trial defense counsel commented on the SJA’s recommendation to the convening authority to approve the Article 134 offense of incapacitation for duty through drunkenness instead of drunk on station. In taking action pursuant to Article 60(c) and R.C.M. 1107(c), the convening authority approved a finding of guilty of incapacitation for duty through drunkenness, in accordance with the SJA’s recommendation.
Discussion
Because the Article 134, UCMJ, offense of incapacitation for duty by reason of drunkenness is not a lesser-included offense of the Article 134, UCMJ, offense of drunk on station, we find the convening authority exceeded his authority under Article 60(c), UCMJ, and R.C.M. 1107(c). As a result, his approval of the Specification of Charge II is a nullity.
A convening authority is not required to specifically act on the findings of a
court-martial. Article 60(c), UCMJ, and R.C.M. 1107(c).
See also United States v.
Alexander
,
Pertinent to the case
sub judice
, both Article 60(c)(3)(B) and R.C.M.
1107(c)(1) contain identical language regarding a convening authority's discretion.
As this court stated in
United States v. Henderson
, Article 60(c) authorizes a
convening authority "to modify any adjudged finding of guilty by setting aside the
finding of guilty and dismissing the related charge or specification or by approving a
lesser-included offense of the adjudged finding of guilty.”
To determine whether an offense is a lesser included offense of a charged offense, we apply the "elements test" derived from Schmuck v. United States , 489 U.S. 705 (1989). If the elements of one offense are a subset of the charged offense, the offense would be a lesser-included offense of the charged offense. Id. at 716. Applying the Schmuck elemental analysis to the instant case, we find the offense of incapacitation for duty by reason of drunkenness in violation of Article 134, UCMJ, (. . . continued)
Article 60(c)(3) states:
(c) Action on the findings of a court-martial by the convening authority or other person acting on the sentence is not required. However, such person, in his sole discretion, may— (A) dismiss any charge or specification by setting aside a finding of guilty hereto; or
(B) change a finding of guilty to a charge or specification to a finding of guilty to an offense that is a lesser-included offense of the offense stated in the charge or specification . (emphasis added).
Rule for Courts-Martial 1107(c) states:
(c) Action on findings. Action on the findings is not required.
However, the convening authority may, in the convening authority’s sole discretion:
(1) Change a finding of guilty to a charge or specification to a finding of guilty to an offense that is a lesser-included offense of the offense stated in the charge or specification ; or
(2) Set aside any finding of guilty and—
(A) Dismiss the specification and, if appropriate, the charge, or
(B) Direct a rehearing in accordance with subsection (e) of this rule.
(emphasis added).
is not a lesser-included offense of drunk on station in violation of Article 134, UCMJ.
The offense of drunk on station under Article 134, UCMJ, requires the government establish two elements:
(1) That the accused was drunk, disorderly, or drunk and disorderly on board ship or in some other place; and (2) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.
MCM, Part IV, para. 73.
The offense of incapacitation for duty by reason of drunkenness under Article 134, UCMJ, requires the government establish four elements:
(1) That the accused had certain duties to perform; (2) That the accused was incapacitated for the proper performance of such duties;
(3) That such incapacitation was the result of previous wrongful indulgence in intoxicating liquor or any drug; and
(4) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.
MCM, Part IV, para. 76.
Restatement of the elements of each offense clearly reflects that the two
offenses share only one element in common: that, under the circumstances, the
conduct of the accused was to the prejudice of good order and discipline in the
armed forces or was of a nature to bring discredit upon the armed forces.
Restatement of the elements similarly clearly reflects that the two offenses do not
share in common the two elements set forth in incapacitation for duty by reason of
drunkenness: that one had duties to perform and was incapacitated to perform such
duties through the prior wrongful indulgence of intoxicating liquor or alcohol. Both
of these elements are patently not elements of the offense of drunk on station.
Accordingly, under the
Schmuck
elemental analysis, those two elements clearly
establish that incapacitation for duty by reason of drunkenness under
MCM
, Part IV,
para. 76, is not a lesser included offense of drunk on station under
MCM
, Part IV,
para. 73. Based on our conclusion above, we need not address whether the elements
of "drunkenness" under
MCM
, Part IV, Article 73, and "incapacitation" under
MCM
,
Part IV, para. 76, are the same for the purpose of the
Schmuck
elemental analysis.
Cf. United States v. Gonzalez
,
Because incapacitation for duty by reason of drunkenness is not a lesser- included offense of drunk on station, the convening authority exceeded the scope of his authority under Article 60(c)(3)(B) and R.C.M. 1107(c)(1). The convening authority's action with regard to the Specification of Charge II is a nullity and we take appropriate action in our decretal paragraph.
II. APPELLATE CHALLENGE TO MILITARY JUDGE'S IMPARTIALITY
Background
Appellant was arraigned by Colonel (COL) B and tried by COL M. Appellant was advised at the time of arraignment that COL M would likely be trying his case. The record of trial reflects that although he was an experienced judge advocate, appellant's court-martial was COL M's first court-martial as a military trial judge. Colonel B [hereinafter "supervisory judge"] provided oversight of COL M [hereinafter "military judge"] during appellant's court-martial.
After appellant's trial, his trial defense counsel submitted clemency matters to the convening authority pursuant to R.C.M. 1105. In a memorandum to the convening authority, the trial defense counsel asserted that the supervisory judge's contact with the trial counsel during appellant's court-martial was "unusual" and created a perception by appellant that the supervisory judge was "assisting the prosecution." The trial defense counsel asserted, inter alia , that the supervisory judge had "unusual" contact with the trial counsel at least twice during appellant's trial while she was sitting in the spectator section of the courtroom. The trial defense counsel further stated that as a result of one communication, the trial counsel requested a recess and the supervisory judge followed the military judge into his chambers during the recess. The trial defense counsel noted the supervisory judge also accompanied the military judge into his chambers during deliberations. The trial defense counsel expressly acknowledged he observed the supervisory judge's action at trial, but did not take action at that time. The trial defense counsel stated that the actions of the supervisory judge left appellant with an honest belief that the trial judiciary was less than impartial towards him.
The SJA's addendum included a sworn affidavit from the trial counsel. In the affidavit, the trial counsel acknowledged twice interacting with the supervisory judge while appellant's court-martial was in session and the supervisory judge was in the spectator section. On one occasion, the supervisory judge passed the trial counsel a note informing him that the military judge had failed to elicit facts during the providence inquiry addressing two elements in the Specification of Charge II. The trial counsel stated that he had already noted the omission, thus the supervisory judge did not inform him of something of which he was not aware. The trial counsel further stated the supervisory judge verbally asked him to seek a recess—which he did—after which the supervisory judge accompanied the military judge into his chambers. The trial counsel stated that after a short recess, the military judge returned and proceeded to ask further questions about appellant's pretrial agreement. The trial counsel's affidavit also confirmed that the supervisory judge accompanied the military judge into his chambers at deliberations.
In a sworn affidavit obtained pursuant to this court's order, the supervisory judge identified her role in appellant's case, explained her supervisory relationship with the military judge, why she and the military judge shared judicial chambers, and emphasized the non-substantive nature of their conversations regarding appellant's case. The supervisory judge recalled communicating with the trial counsel while appellant's court-martial was in session by passing a note to the trial counsel. The supervisory judge stated she did so to request a recess after the military judge failed to address most of the provisions of appellant's pretrial agreement and the supervisory judge had been unsuccessful in being able to gain the military judge's attention. The supervisory judge further stated that when the court recessed, she informed the defense counsel that she had asked the trial counsel to request the recess. The supervisory judge acknowledged accompanying the military judge into his chambers after requesting the recess and advising him of the omissions in addressing all the terms of the pretrial agreement. She emphasized that at no time did she and the military judge discuss any substantive issues regarding appellant's case. The supervisory judge stated she does not recall any communications with the trial counsel about the elements.
In a sworn affidavit also obtained pursuant to this court's order, the military judge identified his role in appellant's case, explained the supervisory judge's supervisory relationship with him, explained why he and the supervisory judge shared the singular judicial chambers, and emphasized the non-substantive nature of their conversations regarding appellant's case. The military judge's statement reflected he became aware of the supervisory judge's request for a recess made via the trial counsel, although it does not reflect he was aware of the precise mode of communication. The military judge made no mention of knowledge of any other contact between the supervisory judge and the trial counsel while appellant's court- martial was in session. The military judge noted that after the trial counsel requested a recess, the supervisory judge accompanied him into his chambers. The supervisory judge advised him of the omissions in addressing many of the terms of the pretrial agreement. The military judge emphasized that at no time did he and the supervisory judge discuss any substantive issues regarding appellant's case.
Review of the record of trial reflects that after conducting his factual inquiry during the providence inquiry on the Specification of Charge I, the military judge asked both counsel whether they thought any further inquiry was needed. The trial counsel requested the military judge make further inquiry of appellant on the elements mentioned in the trial counsel's affidavit.
The record further reflects that when conducting his inquiry to determine whether appellant understood the terms of his pretrial agreement, the military judge initially only addressed a portion of the pretrial agreement with the appellant before concluding the inquiry. Shortly after the military judge appeared to have concluded his inquiry of the pretrial agreement and proceed to other portions of the guilty plea inquiry, the trial counsel requested a recess. After the trial resumed, the military judge resumed his inquiry into terms of the pretrial agreement and addressed terms of appellant's pretrial agreement not previously discussed.
Discussion
Appellant did not challenge the military judge's participation at trial. When
an appellant does not raise the issue of disqualification until appeal, we examine the
claim under the plain error standard of review.
United States v. Jones
,
Appellant avers that a "reasonable person" would question the impartiality of
a military judge who would allow an individual (
i.e.
, the supervisory judge) who
appeared to be "assisting the prosecution" (
i.e.
, her contact with the trial counsel
during the court-martial) to accompany him into his chambers during recesses and
deliberations. As a result, appellant asserts the military judge should have recused
himself under the provisions of R.C.M. 902(a). The facts of the instant case are
somewhat novel, insofar as we examine the conduct of two judges to determine
whether one military judge should have disqualified himself under R.C.M. 902(a),
although we do not do so under a theory of imputation.
Cf
.
Jones
,
Rule for Courts-Martial 902 delineates general and specific bases for judicial disqualification. Whereas R.C.M. 902(b) establishes several specific bases for disqualification, R.C.M. 902(a) establishes a general basis for disqualification on the appearance of bias. Specifically, R.C.M. 902(a) provides, “Except as provided in subsection [902] (e) of this rule, a military judge shall disqualify himself or herself in any proceeding in which that military judge’s impartiality might reasonably be questioned.”
In interpreting R.C.M. 902(a), our superior court articulated the following standard: "[a]ny 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. Quintanilla , (. . . continued)
(b) Specific grounds. A military judge shall also disqualify himself or herself in the following circumstances:
(1) Where the military judge has a personal bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceeding.
(2) Where the military judge has acted as counsel, investigating officer, legal officer, staff judge advocate, or convening authority as to any offense charged or in the same case generally.
(3) Where the military judge has been or will be a witness in the same case, is the accuser, has forwarded charges in the case with a personal recommendations to disposition, or except in the performance of duties as military judge in a previous trial of the same or a related case, has expressed an opinion concerning the guilt or innocence of the accused. (4) Where the military judge is not eligible to act because the military judge is not qualified under R.C.M. 502(c) or not detailed under R.C.M. 503(b).
(5) Where the military judge, the military judge’s spouse, or a person within the third degree of relationship to either of them or a spouse of such person:
(A) Is a party to the proceeding;
(B) Is known by the military judge to have an interest, financial or otherwise, that could be substantially affected by the outcome of the proceeding; or
(C) Is to the military judge’s knowledge likely to be a material witness in the proceeding.
We have carefully examined the record of trial, which includes sworn affidavits from the supervisory judge, the military judge, and the trial counsel addressing, inter alia, the substance of appellant's disqualification allegation. We find the supervisory judge had previously arraigned appellant and thus was known to appellant as a military judge. The supervisory judge attended appellant's trial to provide oversight of the military judge, as it was his first trial as a military judge. During trial, the supervisory judge sat behind the trial counsel in the spectator section of the court-room. At times, the supervisory judge took notes.
While appellant's court-martial was in session, there were two "irregular" contacts between the supervisory judge and the trial counsel. Both communications took place during the guilty plea phase of appellant’s court-martial. One communication occurred during the providence inquiry and advised the trial counsel to communicate to the military judge that he needed to further address two elements of the specification of Charge II. The second communication consisted of the supervisory judge advising the trial counsel to request a recess. While there is a factual dispute in the record of trial as to which communication was verbal and which was written, the disputed issue is immaterial to resolution of the legal issue before this court. Both communications occurred while the supervisory judge was sitting in the spectator section of the courtroom.
We find the evidence supports that during trial the military judge became aware of one of the communications between the supervisory judge and the trial counsel, although perhaps not the precise mode of communication. Specifically, the military judge became aware of the supervisory judge's request for a recess via the trial counsel. The military judge's knowledge of the communication between the supervisory judge and the trial counsel occurred during the providence inquiry phase of appellant's court-martial. Subsequent to this communication between the trial counsel and the supervisory judge, when the court was placed in recess, the supervisory judge accompanied the military judge into his chambers. The supervisory judge also accompanied the judge into his chambers during deliberations.
Consonant with the observations of the Supreme Court of the United States in
Liljeberg
, we do not expect military judges to be prescient and "disqualify
themselves based on facts they do not know."
Liljeberg
,
We assume, without deciding, however, that the military judge committed plain error when he did not disqualify himself or obtain waiver, under the provisions of R.C.M. 902(a), as a result of his knowledge of the supervisory judge's contact with the trial counsel regarding a request for recess in tandem with other facts of the case. The other facts include, but are not limited to: appellant’s knowledge of the supervisory judge’s status as a member of the U.S. Army Trial Judiciary; the circumstances of the supervisory judge's attendance at appellant's trial ( e.g. , sitting behind the trial counsel and taking notes); her irregular communication with the trial counsel; the lack of timely and full disclosure on the record by the appropriate parties of the contacts between the supervisory judge and the trial counsel; and the supervisory judge's access—albeit permissible—to the military judge during recess and deliberations, which all contributed to appellant's allegation that the supervisory judge was assisting the prosecution and the military judge did not act impartially. We now analyze whether his failure to do so requires reversal under the standards set forth in Liljeberg .
The first
Liljeberg
factor requires consideration of "the risk of injustice to the
parties in the particular case."
In addition, we note the record of trial reflects that the "senior military judge"
who accompanied the military judge into chambers was performing a supervisory
function. The contact the two judges had regarding appellant's case was not
substantive, but rather limited to procedural matters.
See Jones
,
The second
Liljeberg
factor requires consideration that "the risk that denial of
relief will produce injustice in other cases."
Appellant's case presents rather novel facts. We recognize the extreme sensitivity members of the Army trial judiciary exercise in safeguarding the rights of accused—as demonstrated in the hundreds of cases that are reviewed before this court each year. Thus, notwithstanding our foregoing conclusions, these additional observations further convince us it is not necessary to reverse the results of the present case to ensure military judges exercise the appropriate degree of caution when dealing with counsel in the future.
The third
Liljeberg
factor considers "the risk of undermining the public's
confidence in the judicial process."
Notwithstanding our conclusions regarding the merits of appellant's
allegation, we nonetheless find this case troublesome. The circumstances which
gave rise to appellant's challenge (
i.e.
, communication between the supervisory
judge and trial counsel) could easily have been avoided. Although we recognize and
appreciate the role of supervisory judges in protecting the interests of an accused
while providing oversight of new military judges, the issues that arose in appellant's
case could have been handled differently to avoid the direct communication between
the supervisory judge and trial counsel. Although not all ex parte communications
between judges and counsel are impermissible, in general most are.
See Quintanilla
,
The appearance standard in R.C.M. 902(a) is intended to promote public
confidence in the integrity of the judicial system.
Quintanilla
,
III. CONCLUSION
The findings of guilty to Charge II and its specification are set aside and
dismissed. The remaining findings of guilty are affirmed. We have considered
appellant’s other assignments of error, including matters raised pursuant to
United States v.
Grostefon
,
Senior Judge CONN and Judge HOFFMAN concur.
FOR THE COURT: FOR THE COURT: MALCOLM H. SQUIRES, JR. MALCOLM H. SQUIRES, JR. Clerk of Court Clerk of Court
Notes
[1] The full texts of Article 60(c) and R.C.M. 1107(c) are set forth below. (continued . . .)
[2] Appellant does not assert, and there is no evidence in the record of trial to warrant, that the military judge should have disqualified himself for any of the five bases listed under R.C.M. 902(b). The full text of R.C.M. 902(b) is set forth below: (continued . . . )
[3] See R.C.M. 902(c)(1) wherein the term "proceeding" is defined to include "pretrial, trial, post-trial, appellate review, or other states of litigation." See also Mitchell , 39 M.J. at 143.
[4] Although the military judge incorrectly made inquiries of the appellant related to
incapacitation for duties versus drunk on station (
see
Section I), for the purpose of
the
Care
inquiry, it was appropriate for the military judge to inquire into all the
facts of the offense to which the appellant "pled" guilty.
United States v. Care
, 18
U.S.C.M.A. 535, 539,
[5] Pursuant to a pretrial agreement, appellant agreed to plead guilty in exchange for a
sentence limitation by the convening authority. In accordance with R.C.M. 910(e)
and
Care
,
[6]
Cf. United States v. Chavira
,
[7] In
Quintanilla
, our superior court noted that certain
ex parte
communications might
be permissible (
e.g.
, “incidental communications that involve noncontroversial
matters such as routine scheduling discussions . . . does not mandate
disqualification”).