United States v. Butcher

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

MJ 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 MJ 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 MJ 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 MJ 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 MJ 40, 50

(CMA 1982), quoting E. Thode, REPORTER’S NOTES TO CODE OF JUDICIAL

CONDUCT 60 (1973); Wright, 52 MJ 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 MJ at 269-70 , quoting Wright, 52 MJ at 141 . See

also United States v. Hamilton, 41 MJ 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 MJ 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 MJ 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 MJ 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 MJ 262 (2000); United States v.

Wright, 52 MJ 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 MJ 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 MJ 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 MJ 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 MJ 159, 165 (1991) (Sullivan, C. J.,

concurring in part and in the result). See United States v.

Quiroz, 55 MJ at 345 (Sullivan, J., dissenting).

Accordingly, I join in the result reached by the majority and

vote to affirm this case.

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