UNITED STATES NAVY-MARINE CORPS 

COURT OF CRIMINAL APPEALS

WASHINGTON, D.C.

Before

J.A. FISCHER, R.Q. WARD, K.M. MCDONALD

Appellate Military Judges

UNITED STATES OF AMERICA

v.

LEVON TYLER

STAFF SERGEANT (E-6), U.S. MARINE CORPS

NMCCA 201200327

GENERAL COURT-MARTIAL

Sentence Adjudged: 21 March 2012.

Military Judge: LtCol Robert Palmer, USMC.

Convening Authority: Commanding General, 2nd Marine 

Aircraft Wing, Cherry Point, NC.

Staff Judge Advocate's Recommendation: Col S.C. Newman, 

USMC .

For Appellant: LCDR Ryan Mattina, JAGC, USN; LT Carrie 

Theis, JAGC, USN.

For Appellee: LCDR Keith Lofland, JAGC, USN.

11 December 2014

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OPINION OF THE COURT 

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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS 

PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

A panel of officer and enlisted members convicted the 

appellant at a general court-martial, contrary to his pleas, of 

one specification of violating a lawful general order 

(Government travel charge card program regulation), 45 

specifications of larceny, and one specification of stealing 

mail, in violation of Articles 92, 121, and 134, Uniform Code of 

Military Justice, 10 U.S.C. §§ 892, 921, and 934. The panel 
2

sentenced the appellant to confinement for 10 months, reduction 

to pay grade E-1, and a bad-conduct discharge. The convening 

authority approved the sentence as adjudged.

In his initial appeal, we reviewed the appellant’s 

assignments of error1 and, after considering the pleadings of the 

parties and the record of trial, we affirmed the findings of 

guilty and sentence. This case is now before us again on remand 

for reconsideration in light of certain remarks made by the 

military judge approximately three months after the appellant’s 

trial concluded. 

After carefully considering the submissions of the parties 

and the record of trial, we conclude that following our 

corrective action the findings and sentence are correct in law 

and fact, and that no error materially prejudicial to the 

substantial rights of the appellant remains. Arts. 59(a) and 

66(c), UCMJ. 

 Background

This is one of a number of cases concerning an allegation 

of judicial bias stemming from the military judge’s remarks 

during a Professional Military Education (PME) lecture he gave 

to Marine student judge advocates on 21 June 2012. In our 

earlier opinion, we found no evidence of actual bias, assumed 

apparent bias, and affirmed the findings and sentence after 

failing to find structural error or any prejudicial error under 

Article 59(a), UCMJ and Liljeberg v Health Services Acquisition 

Corp., 485 U.S. 847 (1988). United States v. Tyler, No. 

 

1 The appellant raised the following:

(1) The military judge’s post-trial statements cast doubt upon the 

fairness and impartiality of the appellant’s court-martial; 

(2) The evidence is factually insufficient to sustain the appellant’s 

convictions;

(3) The appellant’s convictions for theft of a Government travel card 

and theft of mail are an unreasonable multiplication of charges; and

(4) The trial defense counsel was ineffective during trial on the 

merits and sentencing.

We adopt our analysis from our earlier decision and similarly find 

assignments of error (2) and (4) lacking merit and do not address them 

further. United States v. Clifton, 35 M.J. 79 (C.M.A. 1992). We also adopt 

our previous analysis of assignment of error (3) and our finding as to 

Specifications 41, 43, and 45, and after sentence reassessment provide relief 

in our decretal paragraph.
3

201200327, 2013 CCA LEXIS 232, unpublished op. (N.M.Ct.Crim.App. 

21 Mar 2013). The appellant appealed our decision to the Court 

of Appeals for the Armed Forces (CAAF) solely on the allegation 

of judicial bias, and the CAAF granted review. United States v. 

Tyler, 72 M.J. 472 (C.A.A.F. 2013). 

The CAAF later set aside our decision and returned the case 

to the Judge Advocate General of the Navy for remand to this 

court for further consideration in light of our decision in 

United States v. Kish.

2 United States v. Tyler, 73 M.J. 56

(C.A.A.F. 2013) (summary disposition). After reviewing the 

DuBay record in Kish, we concluded that the military judge “was 

voicing not his own biases or prejudices, but instead a mindset 

that he believes a junior counsel must adopt to be a tenacious 

and zealous advocate.” United States v. Kish, No. 201100404,

2014 CCA LEXIS 358 at *38-39, unpublished op. (N.M.Ct.Crim.App. 

17 Jun 2014). We further concluded that the military judge was 

not actually biased against accused service members within the 

meaning of RULE FOR COURTS-MARTIAL 902(b), MANUAL FOR COURTS-MARTIAL,

UNITED STATES (2012 ed.). Id. We adopt and incorporate our 

findings of fact and conclusions from our decision in Kish for 

purposes of this appeal.

Citing actual and apparent bias from the military judge, 

the appellant argues in his current appeal that he was deprived 

of his constitutional right to an impartial judge. He urges us 

to set aside the guilty findings and sentence. Appellant’s 

Supplemental Brief and Assignment of Error of 1 Aug 2014. 

Disqualification of Military Judge

“‘An accused has the right to an impartial judge.’” 

United States v. Martinez, 70 M.J. 154, 157 (C.A.A.F. 2011) 

(quoting United States v. Butcher, 56 M.J. 87, 90 (C.A.A.F. 

2001)). There is a “strong presumption that a [military] judge 

is impartial.” United States v. Quintanilla, 56 M.J. 37, 44 

(C.A.A.F. 2001). We review whether a military judge has acted 

appropriately de novo.

3

 

2 In Kish, the CAAF ordered a hearing pursuant to United States v. DuBay, 37 

C.M.R. 411 (C.M.A. 1967), to “make findings of fact and conclusions of law 

related to what, if any, statements the military judge made on or about 21 

June 2012 at a Professional Military Education meeting with junior officers 

regarding the practice of military justice.” United States v. Kish, 72 M.J. 

158, 158 (C.A.A.F. 2013) (summary disposition). 

3 The CAAF has applied this standard when facing questions that the appellant 

could not reasonably have raised at trial. See, e.g., United States v. Rose, 

71 M.J. 138, 143 (C.A.A.F. 2012) (reviewing de novo the deficient performance 

and prejudice aspects of an ineffective assistance of counsel claim).
4

While R.C.M. 902(b) lists various circumstances where 

actual bias may require disqualification, R.C.M. 902(a) states 

that a military judge shall “disqualify himself or herself in 

any proceeding in which that military judge’s impartiality might 

reasonably be questioned.” “The appearance standard is designed 

to enhance public confidence in the integrity of the judicial 

system.” Quintanilla, 56 M.J. at 45 (citing Liljeberg, 486 U.S. 

at 860). 

We previously concluded in Kish that the military judge’s 

PME statements did not support a finding of actual bias, and we 

are unpersuaded by the appellant’s current attempt to draw a 

prejudicial nexus between his trial and the judge’s PME 

comments. To the contrary, we find no evidence in the record 

that the military judge had a personal bias or prejudice 

concerning the appellant or his case.4 We next turn our 

attention to the issue of apparent bias. 

The test we apply for apparent bias is “whether, taken as a 

whole in the context of this trial, a court-martial’s legality, 

fairness, and impartiality were put into doubt by the military 

judge’s actions.” Martinez, 70 M.J. at 157 (citation and 

internal quotation marks omitted). The test is met when there 

is “‘any conduct that would lead a reasonable man knowing all 

the circumstances to the conclusion that the judge’s 

impartiality might reasonably be questioned.’” Id. at 158-59 

(quoting United States v. Kincheloe, 14 M.J. 40, 50 (C.M.A. 

1982)). 

Examining these same matters in the context of apparent 

bias, we are unpersuaded that a reasonable observer aware of all 

the circumstances would question the military judge’s 

impartiality at the appellant’s trial. Despite the appellant’s 

assertions, we do not find any action by the military judge 

during the appellant’s trial that would reasonably call his 

impartiality into question. Unlike in Kish, the effect of the 

military judge’s PME remarks is not compounded with anything at 

the appellant’s trial that undermines public confidence in the 

 

4 The appellant cites to the military judge’s comment in his written ruling 

that a series of defense pretrial motions “are nothing more than the defense 

protesting the Government holding the [appellant] accountable for his 

misconduct . . .” and “sour grapes”. Appellant’s Supplemental Brief at 16 

(quoting Appellate Exhibit XI at 9). A fair read of the military judge’s 

comment in the context of his ruling quickly belies his argument of bias. In 

addition, the appellant cites the military judge’s excusal of a panel member 

due to actual bias. As we stated in our earlier opinion, we find the 

military judge’s rulings legally correct and not indicative of any bias. 

Tyler, 2013 CCA LEXIS 232 at *13. 
5

judicial system’s integrity. Quintanilla, 56 M.J. at 45. 

Accordingly, we find no apparent bias. 

Conclusion

As we stated in our earlier decision, we note a difference 

between the evidence introduced at trial and the commencement 

date of the offenses as charged in Specifications 41, 43, and 

45. Each of the specifications charged the commencement date of 

the offenses as “on or about 1 January 2009.” The evidence at 

trial, however, indicated the items were stolen at a later date, 

but still within the time frame alleged. Additionally, the 

findings of guilty as to Specification 44 under Charge I are set 

aside as unreasonably multiplied with the specification under 

Charge II.

The remaining findings are affirmed except that the 

following language is excepted and substituted as to 

Specifications 41, 43 and 45 of Charge I:

Specification 41: Except the language “on or about 1 January 

2009" and substituting therefor the words "on or about May 

2009.”

Specification 43: Except the language “on or about 1 January 

2009" and substituting therefor the words "on or about August 

2009.”

Specification 44: Except the language “on or about 1 January 

2009 to on or about 30 June 2009" and substituting therefor the 

words "on or about June 2009.”

After reassessing the sentence in accordance with the 

principles set forth in United States v. Moffeit, 63 M.J. 40 

(C.A.A.F. 2006), United States v. Cook, 48 M.J. 434, 438, 

(C.A.A.F. 1998), and United States v. Sales, 22 M.J. 305, 307-09 

(C.M.A. 1986), and finding that there has not been a dramatic 

change in the penalty landscape, United States v. Buber, 62 M.J. 

476, 479 (C.A.A.F. 2006) the sentence as approved by the 

convening authority is affirmed. 

For the Court

 

R.H. TROIDL

Clerk of Court