### UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before MULLIGAN, CAMPANELLA, and HERRING Appellate Military Judges

UNITED STATES, Appellee

v. Staff Sergeant TI MOTHY R. SLACK United States Army, Appellant

ARMY 20150352

Headquarters, III Co rps and Fort Hood

Wade N. Faulkner , Military Judge Colonel Ian G. Corey, Staff Judge Advocate

For Appellant: Colone l Mary J. Bradley, JA; Major Christopher D. Coleman, JA; Captain Payum Doroodian, JA (on brief); Colonel Ma ry J. Bradley, JA; Major Christopher D. Coleman, JA; Ca ptain Patrick J. Scudieri, JA (on brief in response to specified issue).

For Appellee: Colonel Mark H. Sydenham, JA ; Lieutenant Colonel A. G. Courie III, JA; Major Michael E. Korte, JA; Captain Tara O’Brien Goble, JA (on brief).

13 March 2017

---------------------------------- MEMORANDUM OPINION

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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

CAMPANELLA, Senior Judge:

In this case, we hold that the military judge was not disqualified under Rule for Courts-Martial [hereinaft er R.C.M.] 902 as a result of his duties during his

tenure as the Chief of Justi ce (CoJ), III Corps, prior to presiding over appellant’s case as a military judge.

An officer panel sitting as a general court-martia l convicted appellant, contrary to his pleas, of one specification of conspiracy to comm it aggravated sexual assault and an indecent act, one specification of sexual assault, and one specification of indecent conduct, in viol ation of Articles 81 and 1 20, Uniform Code of Military Justice, 10 U.S.C. §§ 881, 920 (2006 & Supp. IV) [hereinafter UCMJ]. The panel sentenced appellant to a bad-conduct discha rge, three months of confinement, and a reprimand.SLACK—ARMY 20150352

2 This case is before us for review pursuant to Ar ticle 66, UCMJ. Appellant raises one assignment of erro r, which requires neither di scussion nor relief. We

have also considered those matters person ally raised by appe llant pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982) and fi nd them to be wi thout merit.

This court, however, specified one issu e requiring discussi on, but no relief.

This court asked whether th e military judge was disqualified unde r R.C.M. 902 from presiding as a military judge in appellant’s case as a result of being the CoJ at III Corps and Fort Hood while the offenses committed by appellant were under investigation by Army criminal investigators.

BACKGROUND

The Sexual Assault and Investigation

On 24 February 2012, HW, a twenty-one year old co llege student, went out with her friend, MS, to patronize local bars in Austin, Texas. After visiting several bars and consuming se veral drinks, HW beca me extremely drunk. At the last bar the pair visited, HW and MS became separated. HW left the bar wi th three men: appellant; Staff Sergeant (SSG) Dumas; and SSG Davis. The men drove HW to a

local hotel. Once inside the hotel room, the men remove d HW’s clothes and sexually assaulted her. HW testified that she was too drunk to protest.

The next morning, HW took a cab home and eventually reported to her mother that she had been rape d. Her mother and a unt reported the rape to the Austin Police Department (APD). When HW reported the rape to authorities, the identities of the

three man were unknown

.

In March 2012, the APD notified Army Criminal Investigation Command (CID) of their investigation into HW’s report when they identified SSG Dumas, a Fort Hood soldier, as the person who booked the room where the rape occurred. SSG Dumas was a soldier assigned to 1st Army Division West, Fort Hood. 1

On 20 September 2012, the Travis County District Attorney’s Office issued a

warrant of arrest an d opined that probab le cause existed to believe SSG Dumas

committed the offense of sexu al assault. The CID repo rts do not i ndicate that military trial counsel ever ga ve opinions as to pr obable cause in thes e cases. Rather, CID appears to have relied on the Travis County District Attorney’s Office probable

cause determination.

1 1st Army Division West has a separate GCMCA fro m III Corps, Fort Hood.SLACK—ARMY 20150352

3 In October 2012, appellant changed duty stations from 82nd Field Artillery Regiment, 1st Cavalry Divisio n, Fort Hood, Texas to 428th Field Artillery Brigade, Fort Sill, Oklahoma.

On 20 December 2012, CI D interviewed SSG Dumas about the rape. He named appellant and SSG Davis as the two so ldiers with him in the hotel room that night. At the time the tw o additional suspects were identified, SSG Davis was assigned to the 1st Cavalry Division, Fort Hood, but appellant ha d since changed duty stations to Fo rt Sill, Oklahoma.

On 25 January 2013, at th e request of the APD, Fort Sill military criminal investigators questioned appellant about the rape. The criminal investigators then updated appellant’s Fort Sill chain of command on the status of the investigation.

On 12 March 2013, the Trav is County District Atto rney’s Office issued a

warrant of arrest an d opined that probab le cause existed to believe appellant

committed the offense of sexual assault.

CID issued its Fina l Report of Investigation on 19 March 2013 an d distributed the report to members of th e offices of the staff judg e advocates (OSJA) of III Corps, 1st Army Division West , 1st Cavalry Division, and Fort Sill. This report listed as suspects: SSG Davis of 1st Ca valry Division, Fort Hood, TX; SSG Dumas of Division West, Fort Hood, TX, and SSG Slack of 428th Field Artillery Brigade, Fort Sill, OK.

Status of the Military Judge During the Investigation

Lieutenant Colonel (LTC) Wade Faulkn er, the military judg e in appellant’s case, was CoJ for III Corps and Fort Hood from July 2011 to late June 2013.

Lieutenant Colonel Dan Everett was his successor as III Corps CoJ. The government

obtained affidavits from both to address the question specified by this court.

In his affidavit, LTC Faulkner asserted that when he be came the military judge, he had no recollection of the facts of this case. To determine if he was ever made aware of appellant’s case in the normal course of handling III Corps matters, LTC Faulkner checked the III Corps military justice tracking tool he used when he was the CoJ to determine if appellant’s case was listed ther ein, and perhaps to

refresh his recollecti on. Lieutenant Colonel Faulkner determined appellant’s name

was not on his case tracker.

In his affidavit, LTC Everett indicated th at at the time the final CID report was issued, none of the three accused soldiers were assi gned to a III Corps unit– accordingly, it would highly unlikely that any of the three cases would have appeared on LTC Faulkner’s case tracker. Lieutenant Colonel Everett indicated thatSLACK—ARMY 20150352

4 by chance, he became aware of appellant’s ca se after becoming the CoJ when the

Fort Hood senior defense counsel (SDC) contac ted the III Corps OSJA complaining about the pending administrative separati ons facing SSG Dumas and SSG Davis. Appellant was not mentioned because he had already chan ged duty stations. The III Corps SJA forwarded the email to LTC Everett asking abou t whether he was tracking

the cases–which he was not.

As a result of receiving this inform ation, III Corps halte d the administrative separations of SSG Davis and SSG Dumas an d arranged to have all three soldiers reassigned to III Corps so that all three ca ses could be handled t ogether. Appellant’s reassignment to Fort Hood wa s effective 10 January 2014.

Over a year later, the government preferred and referred charges against appellant. On 20 February 2015, appellant’s court-mart ial began. Judge Faulkner presided.

Judge Faulkner did not disclo se on the record th at he had previ ously served as the III Corps CoJ prior to serving as a militar y judge. He stated on the record that he was not aware of any gro unds for challenge ag ainst him. Both sides declined to question or challenge him. Appellant elected to be tried by an officer panel.

LAW AND DISCUSSION

We review a military judg e’s decision as to disqua lification under R.C.M. 902

for an abuse of discretion. United States v. Quintanilla , 52 M.J. 839, 849-50 (Army Ct. Crim. App. 2000) (citing United States v. Rivers , 49 M.J. 434, 444 (C.A.A.F. 1998); United States v. Elzy , 25 M.J. 416, 417 (C.M.A. 1988); Liteky v. United

States , 510 U.S. 540, 557 (1995) (K ennedy, J., concurring in judgment) (“a judge should be disqualified only if it appear s that he or she harbor s an aversion, hostility, or disposition of a kind that a fair-minde d person could not set aside when judging the dispute”). The burden of demonstrating a disqua lification is on the party requesting such di squalification. Id . A reasonable fa ctual basis must be established; surmise or conjecture is not sufficient. Id

.

It is axiomatic that “[a]n accused has a constitutional right to an impartial judge.” United States v. Butcher , 56 M.J. 87, 90 (C.A.A .F. 2001) (quoting United States v. Wright , 52 M.J. 136, 140 (C.A .A.F. 1999)). R.C.M. 902 implements this rule and “provi des two bases for disqualificati on of a military judge.” United States

v. Martinez , 70 M.J. 154, 157 (C.A.A.F . 2011). The first basi s is a military judge’s duty to “disqualify hi mself or herself in any proceeding in which that military judge’s impartiality might re asonably be questioned.” R. C.M. 902(a). The second basis involves the specific, enumerated ci rcumstances requirin g disqualification,SLACK—ARMY 20150352

5 under R.C.M. 902(b). 2 Appellant argues it is the seco nd circumstance that applies to

his case:

(2) Where the military j udge has acted as counsel, investigating officer, legal offi cer, staff judge advocate, or convening authority as to any offense charged or in the same case generally.

Appellant argues R.C.M. 90 2(b) was violated when LT C Faulkner acted as the supervising counsel for III Corps during th e Army CID investigation into appellant’s criminal activity. Appellant further asse rts LTC Faulkner failed to disclose this potential ground for challenge under R.C.M. 902(a) and (e), th ereby creating the appearance of bias. We disagree on both counts based on th e reasons herein.

Acted As Counsel und er R.C.M 902(b)

We find no evidence that LTC Faulkner, or the pers onnel he supervised, took official action on appellant’s case. In fact, the only evid ence provided to indicate LTC Faulkner had any knowledg e of this case during his tenure as CoJ would have

been as a result of receiving the final CID report in March 2013. At this point in time, however, all three sold iers were assigned to un its outside the III Corps GCMCA jurisdiction. Lieutena nt Colonel Faulkner indica ted that, as a matter of course, he did not read the CID reports but rather would disp atch them to the corresponding trial couns el in that jurisdiction. Acco rdingly, none of these three

cases were added to LTC Faulkner’s III Corp s case tracker. He would not have had any reason to receive or give briefs on the ca ses or to impart advi ce.

This case is di stinguishable from United States v. Schafer , ARMY 20140245, 2016 CCA LEXIS 429, at *9 (A rmy Ct. Crim. App. 28 Jun. 2016) wherein this court

found that LTC Faulkner had acted “as counsel” under R.C.M. 902(b)(2) and (3) because, in the case of a so ldier assigned to III Corps, he was actively involved in the preferral and referral pr ocess of Schafer’s case an d appeared to have made

recommendations on the ch arging decisions. That was not the case here. In fact, the preferral and referral occurr ed over a year after LTC Fa ulkner became a military judge.

Based on the evidence before us, we conclude neithe r LTC Faulkner nor any of the personnel he s upervised at III Corp s had any involvement in the investigation, preferral or referral of these three cases duri ng his tenure as the Chief of Justice.

2 These specific grounds are ba sed on 28 U.S.C. § 455(b). See R.C.M. 902 analysis

at A21-53.SLACK—ARMY 20150352

6 Appearance of Impartiali ty under R.C.M 902(a)

We next look to whether LTC Faulkner had a duty to di squalify hims elf in this case because his impartiality might reasonably be questioned. See R.C.M. 902(a).

The evidence indicates LTC Faulkner wa s not tracking appe llant’s case, nor was he giving guidance to those he supervised concer ning the prosecution of appellant, SSG Davis or SSG Dumas. In fact, the circumstances that brought these

three cases to II I Corp’s attention, (namely an emai l from the Fort Hood SDC to the III Corps SJA), ca me to light after LTC Faulkner had alread y become a military judge. Given that we have no evidence be fore us to conclude LTC Faulkner had any specific knowledge of this case, we see no reasonable factual basis to reasonably question his impartiality. Quintanilla , 52 M.J. at 850.

This case is distinguishable from United States v. Keen , 2016 CCA LEXIS 616, at *5 (Army Ct. Crim. App. 20 Oct. 20 16) wherein this co urt set as ide the

conviction on R.C.M. 902 (a) grounds. In Keen , the appellant was assigned to a unit within the III Corps GCMCA and the military judge, who had previously served as the CoJ, previously supervised the tr ial counsel who gave the probable cause opinion. Additionally, the appellant in Keen was listed on the CoJ’s tracker. There, the military judge did not disclose his prior position as CoJ, thereb y precluding a possible waiver by Keen. In this case, LTC Faulkner did not disclose his prior position as III Corps CoJ, bu t appellant was not assigned to a unit within the III Corps GCMCA, the attorneys giving the prob able cause opinion di d not work for the III Corps CoJ, and appellant’ s case was not on the CoJ’s ca se tracker. We conclude there is no reasonable basis to question the military judge’s impartiality.

Based on the foregoing, we find the milita ry judge did not ab use his discretion

because there was no reason able factual basis for di squalification under R.C.M 902(a) or R.C.M 902(b).

CONCLUSION

The findings of guilty and the sentence are AFFIRMED.

Senior Judge MULLIGAN an d Judge HERRING concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: