UNITED STATES, Appellee 

v. 

Charles S. Roach, Senior Airman 

U.S. Air Force, Appellant 

No. 07-0870 

Crim. App. No. S31143 

United States Court of Appeals for the Armed Forces 

Argued January 25, 2010 

Decided May 10, 2010 

BAKER, J., delivered the opinion of the Court, in which EFFRON, 

C.J., ERDMANN, STUCKY, and RYAN, JJ., joined. 

Counsel

For Appellant: Dwight H. Sullivan, Esq. (argued); Major Shannon 

A. Bennett (on brief). 

For Appellee: Gerald Bruce, Esq. (argued); Colonel Douglas 

Cordova, Lieutenant Colonel Jeremy S. Weber, and Captain G. Matt 

Osborn (on brief); Captain Ryan N. Hoback. 

Military Judge: Jennifer Whittier 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 
United States v. Roach, No. 07-0870/AF 

2

Judge BAKER delivered the opinion of the Court. 

A special court-martial composed of a military judge alone 

convicted Appellant, pursuant to his pleas, of one specification 

of dereliction of duty for willfully misusing his government 

travel card and one specification of use of cocaine, in 

violation of Articles 92 and 112a, Uniform Code of Military 

Justice (UCMJ), 10 U.S.C. § 892, 912a (2000). Appellant was 

sentenced to a bad-conduct discharge, confinement for four 

months, and reduction to pay grade E-1. The convening authority 

approved the sentence as adjudged except for the confinement, 

which was reduced to three months. 

A panel of the United States Air Force Court of Criminal 

Appeals (CCA), which included Chief Judge James R. Wise, 

affirmed Appellant’s conviction and sentence, despite not having 

received a brief from Appellant. United States v. Roach (Roach 

I), No. ACM S31143, 2007 CCA LEXIS 402, at *3-*9, 2007 WL 

2790660, at *1-*4 (A.F. Ct. Crim. App. Sept. 13, 2007). The 

unpublished, per curiam opinion of the CCA stated: 

While this Court is well aware of the appellant’s 

constitutional and statutory rights to effective 

counsel on appeal, that right is still subject to the 

rules of this Court. . . . Lengthy delays in reaching 

final resolution on adjudged punitive discharges in 

straight-forward cases such as this case do not serve 

either the interests of the accused or the interests 

of the Air Force. Therefore this Court is taking 

action sans a brief appellate counsel [sic]. 
United States v. Roach, No. 07-0870/AF 

3

2007 CCA LEXIS 402, at *3, 2007 WL 2790660, at *1 (citations 

omitted). 

This Court granted review of two issues in January 2008, 

and remanded the case to the CCA six months later on the ground 

that “the court below proceeded to decide the case without 

taking the steps required under Bell and May” to ensure that 

Appellant could be provided representation under Article 70, 

UCMJ, 10 U.S.C. § 870 (2000). United States v. Roach (Roach

II), 66 M.J. 410, 419 (C.A.A.F. 2008). 

The parties agree that during the pendency of Appellant’s 

first appeal to this Court, Chief Judge Wise commented on the 

case during two public events. The parties do not agree on what 

was said by the Chief Judge or in what manner.1

 Following the 

Chief Judge’s remarks, Appellant moved for the recusal of the 

CCA panel to which the case had been assigned on remand. Chief 

Judge Wise withdrew from the case on August 22, 2008. 

Subsequent to that recusal, Chief Judge Wise wrote to Colonel 

 

1

 The record contains two affidavits from audience members at 

these events stating inter alia that Chief Judge Wise called the 

Roach case a “test case” and that the CCA “attempted to ‘grab 

power’ from CAAF.” Another affidavit included in the record 

states that the Chief Judge explained “that there were two lines 

of jurisprudence with regard to the issues in Roach. One . . . 

supported the notion that [the CCA] had the power to decide the 

issue, and the other undermined that notion.” Chief Judge Wise 

also submitted an affidavit that expressed that he tried to 

“drive home the point that even though we disagreed with our 

superior court on a point of law, we follow its guidance and 

direction even when it results in a loss of a tangible benefit 

that otherwise would have accrued.” 
United States v. Roach, No. 07-0870/AF 

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Craig A. Smith, the executive to the Judge Advocate General of 

the Air Force (TJAG), recommending that TJAG designate Senior 

Judge Francis as the chief judge for the Roach case.2 TJAG 

appointed Senior Judge Francis the same day. Chief Judge 

Francis then formed a special panel to consider Appellant’s case 

and assigned himself to this panel. 

Appellant did not learn of Chief Judge Wise’s 

recommendation until April 14, 2009,3 and immediately moved to 

replace Senior Judge Francis. The motion was denied, and that 

same day, the CCA again affirmed Appellant’s conviction and 

sentence. United States v. Roach (Roach III), No. ACM S31143 (f 

rev), 2009 CCA LEXIS 159, at *50, 2009 WL 1514650, at *16 (A.F. 

Ct. Crim. App. Apr. 24, 2009). Appellant now appeals to this 

Court.4 

 

2

 In its entirety, the body of Chief Judge Wise’s e-mail stated: 

I have recused myself from participating in the case 

of U.S. v. Roach, ACM S31143. As a result, I request 

that General Rives appoint Senior Judge Dave Francis 

as the Chief Appellate Military Judge for this case 

pursuant to Rule 1.3 of the United States Air Force 

Court of Criminal Appeals Rules of Practice and 

Procedure. I have attached a memorandum that, once 

signed by General Rives, will accomplish this goal. 

3

 On December 31, 2008, Appellant moved to receive all 

communications from the Chief Judge about his recusal, but the 

CCA denied that part of the motion seeking communications made 

after his recusal on August 25, 2008. Appellant obtained this 

information in response to a Freedom of Information Act request. 

 

4

 We granted review on the following issues: 
United States v. Roach, No. 07-0870/AF 

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The threshold question asks whether the chief judge of a 

court of criminal appeals may recommend to the Judge Advocate 

General an acting chief judge for a case in which the chief 

judge is recused. For the reasons stated below we answer this 

question in the negative, and we vacate the judgment of the CCA. 

The case is remanded for a new Article 66, UCMJ, 10 U.S.C. § 866 

(2006), review by an independent panel. 

DISCUSSION 

Issue I: Actions after a Recusal

The question of whether a judge has acted consistent with a 

recusal, as a mixed question of law and fact, is reviewed de 

novo. See Walker v. United States, 60 M.J. 354, 356-57 

(C.A.A.F. 2004) (performing a de novo review after granting a 

 

I. WHETHER THE AIR FORCE COURT ERRED BY REFUSING TO 

VACATE ITS RULING IN LIGHT OF THE ACTIONS OF THE 

CHIEF JUDGE REGARDING THE APPOINTMENT OF HIS 

REPLACEMENT AFTER HE HAD RECUSED HIMSELF. 

II. WHETHER THE AIR FORCE COURT ERRED BY BASING ITS 

SENTENCE DISPARITY ANALYSIS ON APPELLANT’S AND HIS 

CO-ACTOR’S ADJUDGED SENTENCES RATHER THAN THEIR 

APPROVED SENTENCES. 

III. WHETHER THE AIR FORCE COURT ERRED BY DENYING 

APPELLANT’S MOTION TO COMPEL PRODUCTION OF E-MAILS 

SENT BETWEEN THE CHIEF JUDGE AND APPELLATE 

GOVERNMENT COUNSEL ABOUT THIS CASE FOLLOWING THE 

CHIEF JUDGE’S RECUSAL. 

IV. WHETHER THE APPELLANT’S DUE PROCESS RIGHT TO 

REASONABLY PROMPT APPELLATE REVIEW WAS DENIED BY THE 

DELAY IN THIS APPEAL ARISING FROM THE AIR FORCE 

COURT’S PROCESSING OF THIS APPEAL DURING ITS INITIAL 

REVIEW. 
United States v. Roach, No. 07-0870/AF 

6

petition for extraordinary relief). A recusal means the judge 

“may not preside over any subsequent proceedings in the case or 

perform any other judicial actions with respect to it.” Richard 

E. Flamm, Judicial Disqualification: Recusal and 

Disqualification of Judges § 22.1 (1996) (footnotes omitted). 

Once recused, a military judge should not play any procedural or 

substantive role with regard to the matter about which he is 

recused. “When a judge is recused, the judge should not take 

action to influence the appointment of his or her replacement.” 

Walker, 60 M.J. at 358. 

In Walker, the chief judge of the CCA had recused himself 

and the clerk of the court asked TJAG to appoint a different 

military judge to lead the reviewing panel. Id. at 355-56. The 

chief judge then created a general policy to determine his 

replacement when he was absent or recused. Id. at 356. The 

substitute military judge retired a few weeks later and the CCA 

followed the new court policy to replace him. Id. This Court 

held that “[t]he chief judge, whose recusal remained in place, 

promulgated the policy in the midst of the litigation from which 

he was recused, and the impact on that litigation was readily 

identifiable.” Id. at 358. 

The parties in this case do not agree on what exactly Chief 

Judge Wise might have said that formed the basis of his recusal. 

Nor do they agree whether his recusal was required or 
United States v. Roach, No. 07-0870/AF 

7

prudential, or where this case sits in relation to Walker. 

These disagreements, however, do not impact our ultimate 

conclusion, for the record reflects several conclusive facts. 

First, in response to the Chief Judge’s remarks, Appellant moved 

for the recusal of the original CCA panel following this Court’s 

remand. Second, the Chief Judge recused himself from the case 

on August 22, 2008, and he did so without qualification and 

without stating a reason. Third, subsequent to that recusal, 

the Chief Judge recommended that TJAG designate Senior Judge 

Francis as the chief judge for the Roach case. TJAG appointed 

Senior Judge Francis the same day, and Chief Judge Francis then 

formed a special panel to consider Appellant’s case. 

Chief Judge Wise’s recommendation to TJAG to appoint Senior 

Judge Francis was problematic for a number of reasons. First, 

and foremost, he took a procedural step after his recusal. 

Whether directly controlled by Walker or not, his actions were 

inconsistent with the spirit of Walker. While Chief Judge Wise 

was not promulgating a new policy, at a minimum his actions 

created the appearance of directly impacting a case from which 

he was recused. Second, Senior Judge Francis not only sat on 

the case, he authored it. Third, concerns about perceptions of 

impartiality in the military justice system are heightened where 

a court of criminal appeals is asked to review not only the 
United States v. Roach, No. 07-0870/AF 

8

decision of a trial court, but as in this case, the actions 

taken by a panel of the same court. 

Having found an error in recusal, we must next determine 

whether the error was structural in nature, and therefore 

inherently prejudicial, or in the alternative, determine whether 

the error was harmless under Liljeberg v. Health Services 

Acquisition Corp., 486 U.S. 847 (1988). Although the line 

between structural and nonstructural errors can be opaque, in 

this case, counsel for Appellant conceded at oral argument that 

the error was not structural in nature. We agree. Among other 

things, Appellant had his case reviewed by a three-member CCA 

panel composed of military judges appointed by the TJAG 

consistent with applicable regulations. Therefore, in this case 

we test for prejudice using the three Liljeberg factors. “[I]t 

is appropriate to consider the risk of injustice to the parties 

in the particular case, the risk that the denial of relief will 

produce injustice in other cases, and the risk of undermining 

the public’s confidence in the judicial process.” Id. at 864. 

The third Liljeberg factor is determinative in this case. 

First, public confidence in the military judicial process is 

undermined where judges act in cases from which they are 

recused. This is true, whether the judge’s role is significant 

or minimal. The record supports the CCA’s conclusion that “any 

‘influence’ flowing from Chief Judge Wise’s ‘recommendation’ was 
United States v. Roach, No. 07-0870/AF 

9

at best minimal and resulted in no discernible prejudice to the 

appellant.” Roach III, No. ACM S31143 (f rev) (A.F. Ct. Crim. 

App. Apr 24, 2009) (ruling on Appellant’s motion to vacate). 

Nonetheless, either a military judge is recused or he is not. A 

military judge who acts inconsistently with a recusal, no matter 

how minimally, may leave a wider audience to wonder whether the 

military judge lacks the same rigor when applying the law. 

Second, although there is no evidence indicating that the 

second panel was actually influenced by Chief Judge Wise or 

reached its judgment based on factors other than its best 

judgment, confidence in the judicial process is surely 

undermined where a recused judge recommends the military judge 

who will subsequently review the recused judge’s prior conduct. 

As noted above, in this case Senior Judge Francis not only 

presided over the panel hearing Appellant’s case, he wrote the 

opinion, concluding inter alia that the “chief judge’s 

explanation [was] both reasonable and credible” regarding his 

public statements. Roach III, 2009 CCA LEXIS 159, at *32, 2009 

WL 1514650, at *10. 

The appearance of impartiality may be especially important 

in the military justice context. From an outsider’s 

perspective, it might well appear that at a court-martial and at 

the CCA, the critical players are invariably uniformed officers, 

usually if not always from the same service, and in many cases 
United States v. Roach, No. 07-0870/AF 

10

drawn from what are relatively small communities of military 

judge advocates. In this context, it is all the more important 

for participants to engage in their assigned duties without 

blurring legal and ethical lines; however well intentioned. See

United States v. Greatting, 66 M.J. 226, 232 (C.A.A.F. 2008). 

Issue II: Sentence Disparity

Appellant next challenges the legal framework the lower 

court applied to his sentence disparity claim. “The Courts of 

Criminal Appeals are required to engage in sentence comparison 

only ‘in those rare instances in which sentence appropriateness 

can be fairly determined only by reference to disparate 

sentences adjudged in closely related cases.’” United States v. 

Sothen, 54 M.J. 294, 296 (C.A.A.F. 2001) (quoting United States 

v. Ballard, 20 M.J. 282, 283 (C.M.A. 1985)). Adjudged sentences 

are used because there are several intervening and independent 

factors between trial and appeal –- including discretionary 

grants of clemency and limits from pretrial agreements –- that 

might properly create the disparity in what are otherwise 

closely related cases. 

In contrast, when the CCA is exercising its power over 

sentence appropriateness generally, it may consider both 

adjudged and approved sentences. In turn, this Court “review[s] 

the sentence appropriateness decisions of the Courts of Criminal 

Appeals for abuse of discretion” and may “order a de novo review 
United States v. Roach, No. 07-0870/AF 

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when the lower court has erred as a matter of law.” United 

States v. Hutchison, 59 M.J. 250, 251 (C.A.A.F. 2004); see

United States v. Lacy, 50 M.J.286, 288 (C.A.A.F. 1999). 

However, we need not and do not apply these principles to 

Appellant’s case. The issue of sentence disparity is moot 

before this Court in light of our resolution of Issue I. 

Issue III: Appellate Discovery Request

Appellant recognizes that his claim in Issue I warranted 

some communication between Chief Judge Wise and the Government, 

and led to the generation of an affidavit from Chief Judge Wise. 

As a result, he next argues that any written communications 

between Chief Judge Wise and the Government should be disclosed 

to eliminate any appearance of unfairness during appellate 

review and to allow Appellant to assess and argue prejudice with 

respect to his case. He requests that this Court unseal the 

communications and on remand direct the CCA to consider whether 

Appellant was prejudiced by the denial of his discovery request. 

In light of our decision to vacate based on Issue I, and our 

disposition with respect to Issue IV, this issue is also moot. 

The correspondence that occurred between Chief Judge Wise and 

Government counsel is not relevant to the next CCA review, which 

will be conducted by a new panel, and addresses only the 

remaining pending issue of sentence disparity. 
United States v. Roach, No. 07-0870/AF 

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Issue IV: Appellate Due Process

Whether an appellant’s due process right to a speedy posttrial review has been violated is reviewed de novo. United 

States v. Moreno, 63 M.J. 129, 135 (C.A.A.F. 2006). Under 

Moreno, the Court need not consider the factors from Barker v. 

Wingo, 407 U.S. 514, 530 (1972), unless there is a “facially 

unreasonable delay.” 63 M.J. at 136. The Court established a 

“presumption of unreasonable delay where appellate review is not 

completed and a decision is not rendered within eighteen months 

of docketing the case before the Court of Criminal Appeals.” 

Id. at 142. The CCA released its first decision (Roach I) 

approximately thirteen months after the case was docketed. On 

its face, this does not constitute a threshold showing of 

unreasonable delay warranting consideration of the additional 

Barker factors. 

However, Appellant argues that the CCA purposefully ignored 

binding case law in an attempt to manipulate the law to reach a 

desired result. Appellant contends these legal errors added 

nineteen months of additional and unacceptable post-trial delay. 

In the context of this argument, it is important to Appellant 

not only that Chief Judge Wise commented on his case in public, 

but also the manner in which he spoke. Likewise, Appellant 

asserts that the e-mails requested above may bear on this 
United States v. Roach, No. 07-0870/AF 

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question, although he cannot say how because he has not seen 

them. 

Whether, and how, a showing of “malicious delay” on the 

part of an appellate judge might inform the Barker factors, is a 

question for another day. In Roach I, the CCA identified a 

tension between two distinct lines of jurisprudence; one based 

on Moreno, emphasizing the importance of timely appellate 

review, and one based on United States v. Bell, 11 C.M.A. 306 

(C.M.A. 1960), and United States v. May, 47 M.J. 478 (C.A.A.F. 

1998), emphasizing the importance of an appellant’s opportunity 

to be heard. In Roach II, this Court held that “[t]he error in 

this case is that the court below proceeded to decide the case 

without taking the steps required under Bell and May.” 66 M.J. 

at 419. Prior to this Court’s decision in Roach II, the tension 

between these earlier cases was unresolved. This is true 

regardless of how Chief Judge Wise may or may not have described 

the tension in public statements while Roach I was pending 

before this Court. And it is true whether or not the CCA fully 

identified and articulated the arguments on either side of the 

issue in Roach I. Based on the foregoing, we conclude that the 

opinion in Roach I does not implicate the concerns about 

“malicious delay” raised by Appellant. 

In conclusion, the case does not reach the threshold of 

elapsed time to initiate review under Barker. 
United States v. Roach, No. 07-0870/AF 

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CONCLUSION 

The decision of the United States Air Force Court of 

Criminal Appeals is vacated and the case is remanded for a new 

review under Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2006), 

before a new panel.