This opinion is subject to revision before publication

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

_______________

UNITED STATES

Appellee

v.

Ryan G. URIBE, Staff Sergeant

United States Air Force, Appellant

No. 20-0267

Crim. App. No. 39559

Argued December 1, 2020—Decided February 9, 2021

Military Judges: Donald Eller Jr. and Mark F. Rosenow

For Appellant: Captain Amanda E. Dermady (argued); Lieutenant Colonel Todd J. Fanniff and Major Rodrigo M. 

Caruço.

For Appellee: Major Jessica L. Delaney (argued); Colonel 

Shaun S. Speranza, Lieutenant Colonel Matthew J. Neil,

Major Peter F. Kellett, and Mary Ellen Payne, Esq. (on brief).

Judge OHLSON announced the judgment of the Court 

and delivered an opinion, in which Judge SPARKS 

joined. Judge MAGGS filed a separate opinion, concurring in the judgment, in which Senior Judge 

CRAWFORD joined. Chief Judge STUCKY filed a separate opinion concurring in part and dissenting in part.

_______________

Judge OHLSON announced the judgment of the Court 

and delivered an opinion, in which Judge SPARKS joined.

The military judge and senior trial counsel in this case 

“became friends” approximately four years before Appellant’s

general court-martial. At trial the defense, joined by the Government, filed a motion to recuse the military judge because 

of this friendship but the military judge denied the motion.

We granted review to determine “[w]hether the lower court 

erred in finding the military judge did not abuse his discretion 

in denying a joint motion to recuse.” United States v. Uribe, 

80 M.J. 269 (C.A.A.F. 2020) (order granting review). We hold 

that the military judge abused his discretion but that Appellant is not entitled to relief under Liljeberg v. Health Servs. 

Acquisition Corp., 486 U.S. 847 (1988).
United States v. Uribe, No. 20-0267/AF

Judgment of the Court

2

I. Facts

Major (Maj) Rosenow became a member of the Air Force 

Judge Advocate General Corps (JAG Corps) in 2008. In July 

2016 he became a military judge and was stationed at Travis 

Air Force Base, California.

On March 1, 2018, the Chief Circuit Military Judge of the 

Central Circuit, with the concurrence of the Chief Circuit Military Judge of the Western Circuit, detailed Judge Rosenow

to Appellant’s court-martial which was held at Joint Base San 

Antonio Lackland, Texas. Maj BJ, whose duty station also 

was Travis Air Force Base, served as senior trial counsel in 

Appellant’s case. Therefore, both Judge Rosenow and Maj BJ 

traveled from their home duty station for temporary duty to 

participate in Appellant’s court-martial.

Appellant’s court-martial involved two contested Article 

120, Uniform Code of Military Justice (UCMJ),1 specifications alleging that Appellant sexually assaulted his ex-wife 

while they were married. During a Rule for Courts-Martial 

(R.C.M.) 802 telephonic conference with the parties, Judge 

Rosenow “outlined his previous interactions” with Maj BJ.

A. Judge Rosenow’s Friendship With

Senior Trial Counsel

Judge Rosenow and Maj BJ first met in 2012, but their 

interactions were “limited” because although they were both 

senior trial counsel they were assigned to different duty stations. However, after the two were stationed together as senior trial counsel beginning in mid-2014, they “became 

friends.” This friendship included Maj BJ attending Judge 

Rosenow’s bachelor party in New York City in April 2015 and 

his wedding in June 2015.

Maj BJ became senior trial counsel at Travis Air Force 

Base in 2015, and Judge Rosenow was stationed as a military 

judge there in 2016. From the time they were both assigned 

to Travis Air Force Base to the time of Appellant’s court-martial in 2018, Judge Rosenow and Maj BJ “hung out socially” 

with their significant others “roughly four times,” and they 

got together socially without their significant others once. 

 1 10 U.S.C. § 920 (2012).
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3

Further, although Maj BJ’s girlfriend and Judge Rosenow’s 

wife were “more of acquaintances than friends,” Maj BJ’s girlfriend was present for the birth of Judge Rosenow’s children 

because Judge Rosenow was out of town when his wife went 

into labor prematurely and the couple did not have any other 

friends or family in the local area.

B. Recusal Motion and Ruling

The day before the defense filed a motion for recusal, Maj 

BJ requested an R.C.M. 802 conference due to his “friendship” 

with Judge Rosenow. Maj BJ cited both parties’ “concern[] 

about the perception of fairness of the proceedings, not only 

from the [Appellant’s] perspective ... but also from an outsider[’s] as well.” During this conference, Maj BJ expressed 

“his concern [with] the ‘optics’ of [Judge Rosenow] presiding 

over a case where [Maj BJ] appeared as counsel.” Maj BJ also 

expressed “sympathy for [Appellant’s] perspective in general.” The next day the defense interviewed Maj BJ about his 

relationship with Judge Rosenow. 

The defense then moved to recuse Judge Rosenow from 

Appellant’s court-martial because of his “personal relationship” with Maj BJ. This relationship, the defense argued, 

would undermine, “at least in part, public confidence in the 

fairness of the trial.” The Government did not oppose this motion and agreed with the motion’s facts. Judge Rosenow “interpreted [the Government’s position as] a joint request” for 

recusal because otherwise he “would insufficiently weigh the 

role the government took in raising the issue, the varying descriptions of its concerns across time and the shared need for 

both parties to receive a hearing free of doubts regarding the 

military judge’s integrity and impartiality.” Nonetheless, 

Judge Rosenow denied the parties’ joint request for recusal.

C. Court-Martial Proceedings

Following the recusal ruling, Appellant requested trial before a military judge alone, recognizing that Judge Rosenow 

would preside over the court-martial. Appellant also entered 

pleas of not guilty to the two Article 120, UCMJ, specifications. During the trial, Judge Rosenow ruled in the Government’s favor on a defense Military Rule of Evidence (M.R.E.) 
United States v. Uribe, No. 20-0267/AF

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4

404(b) objection, but also ruled in the defense’s favor by sustaining some defense objections and overruling Government 

objections.

After hearing the evidence in this case, Judge Rosenow acquitted Appellant of one sexual assault specification but convicted Appellant of a different sexual assault specification.

During the Government’s sentencing argument, assistant 

trial counsel asked that Appellant be sentenced to a reduction 

to E-1, a dishonorable discharge, and confinement for three 

years. Judge Rosenow sentenced Appellant to a reduction to 

E-1, a dishonorable discharge, confinement for twenty

months, and a reprimand. The convening authority approved 

this sentence.

D. Court of Criminal Appeals

Appellant raised ten assignments of error at the United 

States Air Force Court of Criminal Appeals (CCA), including 

challenges to the military judge’s recusal ruling and M.R.E. 

404(b) ruling, and challenges to the factual and legal sufficiency of Appellant’s conviction. The CCA summarily concluded that the M.R.E. 404(b) ruling did “not require further 

discussion or warrant relief.” United States v. Uribe, No. ACM 

39559, 2020 CCA LEXIS 119, at *3, 2020 WL 1896392, at *1

(A.F. Ct. Crim. App. Apr. 16, 2020) (unpublished). The CCA 

also determined that the evidence was legally and factually 

sufficient because there was “ample evidence to support Appellant’s conviction,” particularly Appellant’s “own words on 

the recorded call[s]” effectively admitting to the misconduct.

Id. at *27, *30, 2020 WL 1896392, at *9, *10. Thus, the CCA 

believed there was “compelling evidence of Appellant’s guilt.”

Id. at *30, 2020 WL 1896392, at *10. With respect to the 

recusal issue, the CCA concluded that the military judge did 

not abuse his discretion, but even assuming that he did, the 

lower court concluded that reversal was not warranted under 

the Supreme Court’s Liljeberg decision. Id. at *21–25, 2020 

WL 1896392, at *7–9. Finding that none of the other issues 

warranted relief, the CCA affirmed the findings and sentence. 

Id. at *3, *50, 2020 WL 1896392, at *1, *18.
United States v. Uribe, No. 20-0267/AF

Judgment of the Court

5

II. Standard of Review

“Our review of a military judge’s disqualification decision 

is for an abuse of discretion.” United States v. Sullivan, 

74 M.J. 448, 453 (C.A.A.F. 2015). “A military judge’s ruling 

constitutes an abuse of discretion if it is ‘arbitrary, fanciful, 

clearly unreasonable or clearly erroneous,’ not if this Court 

merely would reach a different conclusion.” Id. (quoting 

United States v. Brown, 72 M.J. 359, 362 (C.A.A.F. 2013)).

III. Analysis

We conclude that the military judge abused his discretion 

when he denied the parties’ joint recusal motion. However, 

after balancing the Liljeberg factors, we determine that Appellant is not entitled to relief. Our reasons for each conclusion are set forth below.

A. Recusal

1. Applicable Law

We have recognized that the validity of the military justice 

system and the integrity of the court-martial process “depend[] on the impartiality of military judges in fact and in appearance.” Hasan v. Gross, 71 M.J. 416, 419 (C.A.A.F. 2012)

(per curiam). Therefore, actual bias is not required; an appearance of bias is sufficient to disqualify a military judge. 

See United States v. Norfleet, 53 M.J. 262, 270 (C.A.A.F. 

2000). And in this appeal, the focus is indeed on the appearance of bias.

“In the military context, the appearance of bias principle 

is derived from R.C.M. 902(a) ....” Hasan, 71 M.J. at 418. This 

rule provides: “[A] military judge shall disqualify himself or 

herself in any proceeding in which that military judge’s impartiality might reasonably be questioned.” R.C.M. 902(a). 

The test for identifying an appearance of bias is “whether a 

reasonable person knowing all the circumstances would conclude that the military judge’s impartiality might reasonably 

be questioned.” Sullivan, 74 M.J. at 453. This is “an objective 

standard.” Id. “Recusal based on an appearance of bias ‘is intended to promote public confidence in the integrity of the judicial process.’ ” Id. at 453–54 (internal quotation marks omitted) (quoting Hasan, 71 M.J. at 418).
United States v. Uribe, No. 20-0267/AF

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“[T]his ‘appearance standard does not require judges to 

live in an environment sealed off from the outside world.’ ” Id. 

at 454 (quoting United States v. Butcher, 56 M.J. 87, 91 

(C.A.A.F. 2001)). Indeed, “[p]ersonal relationships between 

members of the judiciary and ... participants in the courtmartial process do not necessarily require disqualification.” 

Norfleet, 53 M.J. at 270. However, the existence of “a social 

relationship creates special concerns which a professional relationship does not.” United States v. Wright, 52 M.J. 136, 141 

(C.A.A.F. 1999); see also Sullivan, 74 M.J. 454–55.

2. Discussion

In the instant case, the Government did not oppose the 

defense recusal motion at trial. In fact, Maj BJ, the very person whose relationship with the military judge was at issue, 

informed Judge Rosenow: “[B]oth sides are simply concerned 

about the perception of fairness of the proceedings, not only 

from the Accused’s perspective ..., but also from an outsider[’s] as well.” (Emphasis added.) This position led Judge 

Rosenow to “interpret[] [the Government’s position] to mean

this is a joint request,” and in Sullivan we “caution[ed] military judges to be especially circumspect in deciding whether 

to disqualify themselves in such instances.” 74 M.J. at 455

(emphasis added). As we will explain, Judge Rosenow was not 

“especially circumspect” when deciding the joint recusal motion concerning his friendship with Maj BJ.

To be sure, the world of career JAG Corps officers is relatively small and cohesive, with professional relationships the 

norm and friendships common. See Butcher, 56 M.J. at 91. 

Typically, these relationships do not rise to the level where a 

military judge must recuse himself or herself. Norfleet, 

53 M.J. at 270; Wright, 52 M.J. at 141. Indeed, in examining 

this issue we are mindful of the fact that “[t]he interplay of 

social and professional relationships in the armed forces 

poses particular challenges for the military judiciary.” 

Butcher, 56 M.J. at 91. Therefore, the proper focus of our inquiry is whether the relationship between a military judge 

and a party raises “special concerns,” Wright, 52 M.J. at 141

(emphasis added), whether the relationship was “so close or 

unusual as to be problematic,” In re Hawsawi, 955 F.3d 152, 

161 (D.C. Cir. 2020) (emphasis added), and/or whether “the 

association exceeds what might reasonably be expected in light 
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7

of the [normal] associational activities of an ordinary [military] judge,” United States v. Murphy, 768 F.2d 1518, 1538 

(7th Cir. 1985) (emphasis added) (citation omitted) (internal 

quotation marks omitted).

As evidenced by the facts spelled out below, Judge 

Rosenow failed to recognize that his friendship with Maj BJ 

raised “special concerns.” Wright, 52 M.J. at 141.

• Judge Rosenow and Maj BJ met in 2012 when they 

both served as senior trial counsel.

• In 2014, they were stationed together for approximately one year when they both served as senior trial 

counsel. They had both a professional and a personal 

relationship at that time.

• In April 2015, Maj BJ attended Judge Rosenow’s bachelor party. We underscore that this was not a large, local affair where a number of JAG Corps members were 

invited. Rather, the party was limited to fifteen to 

twenty people, it was held in New York City, and the 

trial counsel may have been the only Judge Advocate 

Corps guest in attendance.

• In June 2015, the trial counsel attended Judge 

Rosenow’s wedding.

• In mid-2016, Maj BJ and Judge Rosenow were stationed together. Despite the fact that Judge Rosenow

was now a military judge, he continued to personally 

socialize with the trial counsel. In fact, Judge Rosenow

and his wife “hung out socially” as friends with Maj BJ

and his girlfriend four times, and Judge Rosenow and 

Maj BJ went out together socially one additional time.

• In February 2017, Judge Rosenow’s wife went into labor prematurely and she asked Maj BJ’s girlfriend to 

attend the birth at the hospital because Judge 

Rosenow was on temporary duty.

• In March 2018, Appellant’s court-martial began.

We conclude that Judge Rosenow misapprehended the law 

in terms of the meaning and scope of R.C.M. 902(a) and the 
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applicability of the rule to this particular case.2 Further, the 

fact that Judge Rosenow repeatedly personally socialized

with Maj BJ—despite the fact that they both were stationed 

at the same air force base and Judge Rosenow was a military 

judge and Maj B was a trial counsel—brings into question 

Judge Rosenow’s ability to objectively assess the nature of his 

relationship with Maj BJ.

First, Judge Rosenow characterized his social involvement 

with Maj BJ as being “relatively limited ... professionally and 

socially.” However, the facts cited above, particularly Maj 

BJ’s invitations to Judge Rosenow’s bachelor party and wedding, suggest otherwise. As the Government appropriately

concedes, this “attendance at the military judge’s bachelor[] 

party and wedding creates a closer call.” Brief for Appellee at 

11, United States v. Uribe, No. 20-0267 (C.A.A.F. Sept. 4, 

2020). Also, Judge Rosenow mistakenly believed that his relationship with Maj BJ shared “commonality” with “so many 

[other] relationships derived from shared uniform service.” 

However, we conclude that his friendship with Maj BJ went

far beyond those typical “professional relationships” that we 

have described as “not per se disqualifying.” Wright, 52 M.J. 

at 141; see also infra note 3.

Second, Judge Rosenow noted that there was “deliberate 

and increased separation” between the two of them after his 

military judge assignment. However, this increased separation should have begun immediately upon Judge Rosenow’s 

appointment as a military judge at the same air force base 

where Maj BJ was stationed. Instead, during a time span of 

less than two years Judge Rosenow and Maj BJ continued 

their friendship by socializing with each other or their significant others (as compared to jointly attending larger professional social functions) a total of five times. Additionally, Maj 

 2 We recognize that in deciding this matter Judge Rosenow referenced R.C.M. 902(a) and reaffirmed his obligation to be impartial. 

However, although this assurance is not irrelevant to the issue of 

whether there was an appearance of bias, it is more relevant to the 

issue of actual bias. See Wright, 52 M.J. at 141. Moreover, such an 

assurance from a military judge is just one factor that an objective 

observer would consider in determining whether that military 

judge’s impartiality might reasonably be questioned.
United States v. Uribe, No. 20-0267/AF

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9

BJ’s girlfriend went to the hospital and was present for the 

birth of Judge Rosenow’s children.

Third, although it is commendable that Judge Rosenow 

placed on the record all the facts about the relationship, this 

step did not erase the troubling nature of those facts.

And fourth, Judge Rosenow compared his friendship with 

Maj BJ “against the relationships and behaviors recounted 

in” a series of military justice cases and determined that “the 

overwhelming balance of precedent support[ed]” his decision 

not to recuse. However, upon close examination of the cited 

authorities, we note that none involved a friendship similar 

to the one between Judge Rosenow and Maj BJ.3

 3 Many of the cases cited by the military judge did not involve 

friendships between a military judge and a court-martial participant. Those cases cited by the military judge that did involve such 

friendships are easily distinguishable from Judge Rosenow’s personal relationship with Maj BJ. Compare Sullivan, 74 M.J. at 454–

55 (holding that military judge’s “professional and routine” relationships with those involved in court-martial did not require 

recusal); Butcher, 56 M.J. at 92 (“assum[ing], without deciding, that 

the military judge should have recused himself” when in the midst 

of trial, he attended an informal farewell party for trial counsel and 

he played tennis with trial counsel); Wright, 52 M.J. at 142 (holding 

that recusal was not necessary based on military judge’s “past [professional] relationship with” a law enforcement witness); United 

States v. Sherrod, 26 M.J. 30, 31 & n.2 (C.M.A. 1988) (holding military judge was disqualified where he lived next door to burglarized 

home and his daughter was close friends with the victim daughter 

of the burglary); United States v. Cron, 73 M.J. 718, 726–27 (A.F. 

Ct. Crim. App. 2014) (finding no basis for recusal where military 

judge and senior trial counsel were “ ‘Air Force friends’ ” but not 

“close friends” in that “they had never been to each other’s houses, 

they had never been stationed together ..., [and] they had never 

spent any time alone together or emailed each other privately”); 

United States v. Berman, 28 M.J. 615, 616–18 (A.F.C.M.R. 1989) 

(en banc) (series of recusal cases involving first a friendship and 

then an intimate relationship between trial counsel and a military 

judge in which the lower court held the military judge “was disqualified”). The closest military justice case—United States v. Hamilton—only involved the statement by a third party indicating that a 

participant whose conduct was under review was “a good friend of 

the two appellate military judges and may have played golf with 

them on several occasions.” 41 M.J. 32, 38 (C.M.A. 1994) (emphasis 

added). Appellant’s case is distinguishable because it involves a 
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10

As can be seen then, Judge Rosenow and Maj BJ had 

formed a close personal bond that transcended the routine 

personal and professional relationships commonly found between a military judge and a party who appears before that 

military judge. Therefore, based not only on the frequency of 

their contact but also on the nature of the relationship, Judge 

Rosenow abused his discretion when he denied the joint 

recusal motion. Simply stated, granting this motion was necessary in order to maintain public confidence in the integrity 

and fairness of the military justice system because Judge 

Rosenow’s impartiality in this case could “reasonably be questioned.”4 R.C.M. 902(a).5

B. Liljeberg Factors

1. Applicable Law

When a military judge abuses his discretion in denying a 

recusal motion, we examine “whether, under Liljeberg, reversal is warranted.” United States v. Martinez, 70 M.J. 154, 159

(C.A.A.F. 2011). “Because not every judicial disqualification 

requires reversal,” the Liljeberg standard “determine[s] 

whether a military judge’s conduct warrants that remedy to 

 

military judge’s friendship with a party (R.C.M. 103(16)(B)) and involves not speculation but undisputed agreement about the nature 

of Maj BJ’s friendship with Judge Rosenow.

4 As noted above, Judge Rosenow was detailed from the trial 

judiciary’s Western Circuit to preside over a case in the Central Circuit. The record does not disclose any operational necessity requiring both Judge Rosenow and Maj BJ to continue participating in 

the same court-martial. Presumably other military judges could 

have replaced a recused Judge Rosenow.

5 We are not persuaded that Appellant’s decision to proceed to 

trial by military judge alone following Judge Rosenow’s recusal ruling weighs against Appellant. We note that this decision is “a legitimate tactical choice.” United States v. Cornett, 47 M.J. 128, 131 

(C.A.A.F. 1997). This is so because “in order to avoid the hazards 

connected with a highly emotional trial ..., [an] appellant [may be] 

willing to risk trial by (a ‘disqualified’) judge alone and hope[] that 

he would receive a fair trial.” United States v. Sherrod, 22 M.J. 917, 

922 (A.C.M.R. 1986), reversed on other grounds and reasoning 

adopted by 26 M.J. at 32 n.5. Here, the record suggests that Appellant’s forum selection was based on this tactical decision. Thus, Appellant was merely making the best of a bad bargain.
United States v. Uribe, No. 20-0267/AF

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vindicate public confidence in the military justice system.” Id.

at 158.

There are three Liljeberg factors. The first one examines 

if there is “any specific injustice that [the appellant] personally suffered.” Martinez, 70 M.J. at 159. The second Liljeberg

factor examines whether granting relief would “encourag[e] a 

judge or litigant to more carefully examine possible grounds 

for disqualification and to promptly disclose them when discovered.” Liljeberg, 486 U.S. at 868. And the third Liljeberg

factor uses an “objective standard” by determining whether 

“the circumstances of [a] case will risk undermining the public’s confidence in the military justice system.” Martinez, 

70 M.J. at 159. Although “similar to the standard applied in 

the initial R.C.M. 902(a) analysis,” the third Liljeberg factor

“differs from the initial R.C.M. 902(a) inquiry” because it is 

not “limit[ed] ... to facts relevant to recusal, but rather review[s] the entire proceedings, to include any post-trial proceeding, the convening authority action, the action of the 

[CCA], or other facts relevant to the Liljeberg test.” Martinez, 

70 M.J. at 160.

2. Discussion

We conclude that reversal is not required under the three 

Liljeberg factors. For the first factor, Appellant has not identified any specific injustice he suffered at the hands of this 

military judge. He points to a number of adverse rulings, but 

the mere fact that the military judge adversely ruled on some 

of Appellant’s motions and objections does not necessarily 

demonstrate any risk of injustice.

Judge Rosenow’s rulings did not exhibit personal bias on 

his part. And he did not rule uniformly in the Government’s 

favor as he also sustained Appellant’s objections. Appellant 

did not challenge most of Judge Rosenow’s adverse rulings on 

appeal, and in regard to the one adverse ruling that Appellant 

did challenge, the CCA determined that this issue was “nonmeritorious.” Uribe, 2020 CCA LEXIS 119, at *2–3, *23, 

2020 WL 1896392, at *1, *8. The lower court also concluded 

that no error materially prejudiced Appellant’s substantial 

rights. Id. at *50, 2020 WL 1896392, at *18; see Marcavage v. 

Bd. of Trs. of Temple Univ. of the Commonwealth Sys. of 

Higher Educ., 232 F. App’x 79, 84 (3d Cir. 2007) (finding no 
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12

risk of injustice when the trial judge’s rulings “were all correct” and there was “no prejudice ... as a result of these rulings”). Further, nothing in the record demonstrates that Maj 

BJ sought to exploit his friendship with Judge Rosenow to obtain a favorable outcome for the Government. In fact, the military judge acquitted Appellant of one of the Article 120, 

UCMJ, specifications. Cf. United States v. Elzy, 25 M.J. 416, 

419 (C.M.A. 1988) (explaining there was no prejudice to appellant from military judge’s failure to recuse where “the military judge acquitted appellant of one of the charges”). Finally, the Government’s case was strong with respect to the 

remaining specification because its evidence included Appellant’s recorded admission.

For the second factor, Appellant did not pursue this point 

in his briefs and instead focused on the first and third 

Liljeberg factors. Because Appellant has not presented any 

argument on this point, we are convinced that 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.” Butcher, 56 M.J. at 93. Furthermore, 

our conclusion that Judge Rosenow abused his discretion will 

cause military judges in future cases to be appropriately 

mindful of their obligations under R.C.M. 902. See Selkridge 

v. United of Omaha Life Ins. Co., 360 F.3d 155, 171 (3d Cir. 

2004) (“[O]ur determination that a violation of [the recusal 

statute] occurred will provide virtually the same encouragement to other judges and litigants as would a remand.”).

Finally, upon examination of the entire proceedings the 

third Liljeberg factor favors affirming the court-martial 

findings and sentence. As we noted above, Judge Rosenow 

acquitted Appellant of one Article 120, UCMJ, specification,

which gives some assurance that an objective observer would

still have confidence in the military justice system. Also, 

looking beyond the trial proceedings, we note that the CCA in 

its factual and legal sufficiency review determined that there 

was “compelling evidence” of Appellant’s guilt, and we agree. 

Uribe, 2020 CCA LEXIS 119, at *30, 2020 WL 1896392, at 

*10. The lower court also found no merit in Appellant’s other 

challenges to the court-martial proceedings. Id. at *2–3; 2020 

WL 1896392, at *1. Further, in affirming the sentence, the 

CCA necessarily determined that the sentence was legally 
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13

correct and appropriate. See Article 66(c), UCMJ, 10 U.S.C. 

§ 866(c) (2012). A decision to affirm the findings and sentence 

under these circumstances would not upset public confidence 

in the judicial process. To the contrary, a decision to reverse 

the findings and sentence would increase the risk “that the 

public will lose faith in the judicial system.” United States v. 

Cerceda, 172 F.3d 806, 815 (11th Cir. 1999) (en banc) (per 

curiam).

IV. Judgment

Although we reach a different conclusion than the CCA 

with respect to the military judge’s recusal ruling, we agree 

with the lower court that Appellant is not entitled to relief 

under the Liljeberg factors. Accordingly, we affirm the 

judgment of the United States Air Force Court of Criminal 

Appeals.
United States v. Uribe, No. 20-0267/AF

Judge MAGGS, with whom Senior Judge CRAWFORD

joins, concurring in the judgment.

Rule for Courts-Martial (R.C.M.) 902 addresses the disqualification of military judges. The drafters of this provision 

sensibly recognized that there are certain specific circumstances that always require a military judge’s disqualification. In R.C.M. 902(b), the drafters listed five such circumstances, which include situations in which the military judge 

previously acted as a counsel in the case, where the military 

judge will be a witness, where the military judge is closely

related to a party, and so forth. The drafters of R.C.M. 902 

also wisely understood that there might be other situations 

requiring disqualification that they could not capture with 

specific rules. They chose to deal with these other circumstances in R.C.M. 902(a) with an open-ended test that a military judge also “shall disqualify himself or herself in any proceeding in which that military judge’s impartiality might 

reasonably be questioned.”

One aspect of R.C.M. 902(a) is especially notable. The provision requires the military judge, not the parties or other 

judges, to decide whether the military judge should “disqualify himself or herself.” The military judge must have discretion in making this decision because in many situations, fairminded observers might differ in their assessment of whether 

a military judge’s impartiality “might reasonably be questioned.” Appellate courts are therefore limited to considering 

whether the military judge committed an abuse of discretion

in making the choice. See United States v. Humpherys, 57 

M.J. 83, 88 (C.A.A.F. 2002).

Two important principles guide us when we consider 

whether a military judge has committed an abuse of 

discretion in deciding not to disqualify himself or herself 

under R.C.M. 902(a). First, “[t]here is a strong presumption 

that a judge is impartial.” United States v. Quintanilla, 56 

M.J. 37, 44 (C.A.A.F. 2001) (citation omitted). Second, a 

military judge “has as much obligation not to . . . [disqualify] 

himself when there is no reason to do so as he does to . . . 

[disqualify] himself when the converse is true.” United States 

v. Kincheloe, 14 M.J. 40, 50 n.14 (C.M.A. 1982) (internal 
United States v. Uribe, No. 20-0267/AF

Judge MAGGS, concurring the judgment

2

quotation marks omitted) (quoting United States v. Bray, 546 

F.2d 851, 857 (10th Cir. 1976).

In this case, I agree with the United States Air Force 

Court of Criminal Appeals (AFCCA) that the military judge 

did not abuse his discretion in concluding that, once all the 

facts and circumstances were known, there was no ground 

upon which his “impartiality might reasonably be questioned.” United States v. Uribe, No. ACM 39559, 2020 CCA 

LEXIS 119, at *20–22, 2020 WL 1896392, at *7 (A.F. Ct. 

Crim. App. Apr. 16, 2020) (unpublished). The military judge 

therefore did not err in denying Appellant’s motion for disqualification under R.C.M. 902(a). I would affirm the 

AFCCA’s decision on this ground and would not reach the issue of prejudice.

I. Abuse of Discretion Review

A military judge abuses his discretion (1) “when his 

findings of fact are clearly erroneous,” or (2) when the military 

judge’s “decision is influenced by an erroneous view of the 

law,” or (3) when “the military judge’s decision on the issue at 

hand is outside the range of choices reasonably arising from 

the applicable facts and the law.” United States v. Miller, 66 

M.J. 306, 307 (C.A.A.F. 2008) (citations omitted). To find an 

abuse of discretion under the last of these tests, this Court 

has required “more than a mere difference of opinion”; rather, 

the military judge’s ruling “must be arbitrary, fanciful, clearly 

unreasonable or clearly erroneous.” United States v. Collier, 

67 M.J. 347, 353 (C.A.A.F. 2009) (internal quotation marks 

omitted) (citations omitted). In this case, applying this 

deferential standard of review, the military judge did not 

abuse his discretion in ruling on the disqualification motion.

As described below, the military judge did not make any

clearly erroneous findings of fact, did not misapprehend the 

law, and did not make unreasonable choices in applying the 

law to the facts.

A. The Military Judge’s Findings of Fact

The military judge made thorough findings of fact in his 

written ruling on the disqualification motion. These findings 

fall into three categories. First, the military judge adopted the 

facts stated in an appendix to Appellant’s motion. This 

appendix recorded “every professional and social interaction 
United States v. Uribe, No. 20-0267/AF

Judge MAGGS, concurring the judgment

3

of substance between the senior trial counsel . . . and [the] 

military judge since their introduction [to each other] in 

2012.” Second, based on his personal knowledge, the military 

judge found “additional facts clarifying details” about the 

interactions described in the attachment. Third, also based on 

his personal knowledge, the military judge found additional 

facts about his past military assignments and how he was

detailed to the court-martial in question. In this appeal, 

neither Appellant nor the Government argues that any of 

these findings of fact are clearly erroneous. Accordingly, the 

military judge’s findings of fact in this case provide no basis 

for concluding that he abused his discretion in denying the 

disqualification motion.

B. The Military Judge’s Understanding of the Law

In his written ruling on the disqualification motion, the 

military judge stated the pertinent principles of law in 

eighteen detailed paragraphs. In these paragraphs, the 

military judge described the burden of proof, the accused’s 

constitutional right to an impartial judge, and the specific 

requirements of R.C.M. 902. The military judge quoted 

R.C.M. 902(a), and noted that this provision tracks the

language of 28 U.S.C. § 455(a). The military judge also quoted 

R.C.M. 902(b)(1), which requires a military judge to recuse 

himself if the military judge has any “personal bias or 

prejudice concerning a party or personal knowledge of 

disputed evidentiary facts.” In addition, the military judge 

quoted and discussed numerous precedents of this Court on 

the issue of disqualification. Neither Appellant nor the 

Government contends that the military judge stated any 

principles of law incorrectly or that he was influenced by an 

erroneous view of the law. Indeed, Appellant and the 

Government largely cite the same sources in their briefs to 

this Court. Accordingly, the military judge’s view of the law 

also provides no basis for concluding that he abused his 

discretion in denying the disqualification motion.

C. The Military Judge’s Application of the Law

Given that the military judge did not make findings of fact 

that were clearly erroneous and that the military judge was 

not influenced by an erroneous view of the law, the military 

judge could have abused his discretion only if “the military 
United States v. Uribe, No. 20-0267/AF

Judge MAGGS, concurring the judgment

4

judge’s decision on the issue at hand is outside the range of 

choices reasonably arising from the applicable facts and the 

law.” Miller, 66 M.J. at 307. Appellant presents three arguments for concluding that the military judge indeed made 

such an unreasonable choice. In my view, however, none of 

these three arguments has merit.

First, Appellant argues that this case is distinguishable 

from prior cases in which this Court or the AFCCA determined that the routine professional relationship between a 

military judge and counsel did not require the military judge 

to recuse himself. See, e.g., United States v. Sullivan, 74 M.J. 

448 (C.A.A.F. 2015); United States v. Cron, 73 M.J. 718 (A.F. 

Ct. Crim. App. 2014). In support of this contention, Appellant 

cites four key facts: (1) the senior trial counsel attended the 

military judge’s out-of-town bachelor party; (2) the senior trial 

counsel attended the military judge’s wedding; (3) the senior

trial counsel’s girlfriend went to the hospital and was present 

with the military judge’s wife during the birth of their children; and (4) the military judge and the senior trial counsel 

personally socialized approximately four times with their significant others and once without their significant others during a two-year period before the court-martial.

These four facts, however, do not make the military 

judge’s ruling under R.C.M. 902(a) “outside the range of 

choices reasonably arising from the applicable facts and the 

law.” Miller, 66 M.J. at 307. As the Government points out, 

the bachelor party and the wedding took place about three

years before the court-martial and well before the military 

judge had become a judge. Based on the timing of the events, 

the military judge reasonably could conclude that they would 

not cause members of the public to reasonably question his 

impartiality at the court-martial. See Sullivan, 74 M.J. at 454 

(concluding that social interactions that had “occurred years 

prior to the court-martial” did not require disqualification). In 

addition, the undisputed finding of fact was that the presence 

of the senior trial counsel’s girlfriend at the birth of the military judge’s children was unplanned. The military judge was 

out of town on temporary duty when his wife prematurely 

went into labor. His wife asked the senior trial counsel’s girlfriend for assistance because she did not know anyone else in 

the area to call. The military judge could reasonably conclude 
United States v. Uribe, No. 20-0267/AF

Judge MAGGS, concurring the judgment

5

that members of the public would not reasonably question his 

impartiality based on the extraordinary circumstances that 

led to this unplanned interaction between the senior trial 

counsel’s girlfriend and the military judge’s wife.

Finally, the military judge also could reasonably conclude 

that the few social interactions between him and the senior 

trial counsel, that took place at times removed from the courtmartial, did not reasonably call his impartiality into question.

We have not adopted a per se rule preventing social interactions between military judges and counsel. On the contrary, 

in Sullivan, we held that a military judge did not have to disqualify himself even though he had relationships with the appellant and military defense counsel that included a “social 

component.” 74 M.J. at 454. Other jurisdictions follow similar 

rules. For example, the United States Court of Appeals for the 

Seventh Circuit stated:

In today’s legal culture friendships among judges 

and lawyers are common. They are more than common; they are desirable. A judge need not cut himself 

off from the rest of the legal community. Social as 

well as official communications among judges and 

lawyers may improve the quality of legal decisions. 

Social interactions also make service on the bench, 

quite isolated as a rule, more tolerable to judges. 

Many well-qualified people would hesitate to become 

judges if they knew that wearing the robe meant either discharging one’s friends or risking disqualification in substantial numbers of cases. Many courts 

therefore have held that a judge need not disqualify 

himself just because a friend—even a close friend—

appears—as a lawyer.

United States v. Murphy, 768 F.2d 1518, 1537 (7th Cir. 1985) 

(citing, inter alia, In re United States, 666 F.2d 690 (1st Cir. 

1981)); see also United States v. Butcher, 56 M.J. 87, 91 

(C.A.A.F. 2001) (recognizing that throughout a military career, a military judge, like any other officer, “is likely to develop numerous friendships as well as patterns of social activity” that “transcend normal duty hours”).

To be sure, military judges and counsel must be sensitive 

to appearances at all times, and should limit social interactions at times when judicial business is pending. See Butcher, 

56 M.J. at 91─92 (assuming without deciding that a military 
United States v. Uribe, No. 20-0267/AF

Judge MAGGS, concurring the judgment

6

judge should have disqualified himself after attending a party 

with trial counsel and playing tennis together on the eve of 

the court-martial). But the military judge reasonably could 

conclude in this case that the four unremarkable social interactions between him and the senior trial counsel, over a twoyear period before trial, did not cross the line.

Second, Appellant argues that the military judge made an 

unreasonable choice because the Government did not oppose 

Appellant’s disqualification motion. Appellant quotes our decision in Sullivan, which involved a joint motion for disqualification. This Court stated that a “ ‘disinterested observer 

would have noted that the government joined the [accused’s] 

motions for recusal—a very unusual development demonstrating that all parties were seriously concerned about the 

appearance of partiality.’ ” Sullivan, 74 M.J. at 455 (quoting 

United States v. Amico, 486 F.3d 764, 776 (2d Cir. 2007)). In 

Sullivan, however, we did not announce a per se rule that a 

military judge must recuse himself if both parties ask for disqualification. Indeed, we did not even require disqualification

in that case. Id. A per se rule requiring disqualification whenever both parties request it would be contrary to R.C.M. 

902(a)’s provision that the military judge makes the disqualification decision. In this case, the military judge was well 

aware of the Government’s position, and he considered our 

statement in Sullivan about joint motions in his ruling. The 

choice that the military judge made was not unreasonable, 

even though both parties supported disqualification, because 

the facts did not provide any reasonable ground for questioning his impartiality.

Third, Appellant argues that the military judge incorrectly “focused more on whether he was actually biased instead of whether there was the appearance of bias.” I agree 

that misapprehending the grounds on which disqualification

is requested could very well lead to a decision outside the 

range of reasonable choices. In this case, however, Appellant’s 

contention finds no support in the military judge’s ruling. The 

military judge in this case understood that the Appellant was 

seeking disqualification on grounds that the public might reasonably question his impartiality and he specifically noted 

that actual personal bias, prejudice, or knowledge of disputed 
United States v. Uribe, No. 20-0267/AF

Judge MAGGS, concurring the judgment

7

facts was “not raised as a basis for disqualification by either 

party.”

II. Conclusion

When ruling on the motion to recuse himself, the military 

judge did not make any clearly erroneous findings of fact, he 

did not have an erroneous view of the law, and his application 

of the law to the facts was not unreasonable given all the circumstances. Accordingly, I agree with the AFCCA that the 

military judge did not abuse his discretion, and would affirm 

the AFCCA’s decision on that ground.
United States v. Uribe, No. 20-0267/AF

Chief Judge STUCKY, concurring in part and dissenting 

in part.

“Judges, like Caesar’s wife, should always be above suspicion. An impartial and disinterested trial judge is the foundation on which the military justice system rests, and avoiding 

the appearance of impropriety is as important as avoiding impropriety itself.” United States v. Berman, 28 M.J. 615, 616 

(A.F.C.M.R. 1989). I concur with the majority’s conclusion 

that the military judge abused his discretion in refusing to 

recuse himself but respectfully dissent from the majority’s 

holding that Appellant is not entitled to relief. 

In Liljeberg v. Health Servs. Acquisition Corp., the Supreme Court established a test for evaluating prejudice when 

a judge who is disqualified under 28 U.S.C. § 455(a) fails to 

recuse himself. 486 U.S. 847, 862, 864 (1988). Courts examine 

three factors: “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. But to this test, 

the Supreme Court added a caveat: “We must continuously 

bear in mind that to perform its high function in the best way 

justice must satisfy the appearance of justice.” Id. (internal 

quotation marks omitted) (citation omitted).

Judge Rosenow was disqualified under Rule for CourtsMartial (R.C.M.) 902(a). As that rule is based on 28 U.S.C. 

§ 455(a),1 this Court has applied the three Liljeberg factors in 

evaluating prejudice in military disqualification and recusal 

cases. See United States v. Witt, 75 M.J. 380, 384–85 (C.A.A.F. 

2016); United States v. McIlwain, 66 M.J. 312, 315 (C.A.A.F. 

2008).

The Supreme Court did not fully explain in Liljeberg how 

to apply the three-factor test. In United States v. Martinez, 

this Court tried to clarify the first factor, equating it to

whether the record supported, or the appellant had 

“identified[,] any specific injustice that he personally suffered 

under the circumstances.” 70 M.J. 154, 159 (C.A.A.F. 2011). 

Although I joined the majority in Martinez, after rereading 

 

1 Manual for Courts-Martial, United States, Analysis of the 

Rules for Courts-Martial app. 21 at A21-50 (2016 ed.).
United States v. Uribe, No. 20-0267/AF

Chief Judge STUCKY, concurring in part and dissenting in part

2

Liljeberg, I now find that explanation contrary to the plain 

language employed by the Supreme Court. The issue is not 

whether there was error or injustice but whether there was 

“the risk of injustice to the parties.” Liljeberg, 486 U.S. at 864 

(emphasis added). 

I find the United States Court of Appeals for the Seventh 

Circuit’s explanation of the first factor more persuasive. That 

court starts with the potential for injustice the accused may 

suffer in upholding the conviction by looking at whether the 

trial judge’s personal bias could have influenced the court’s 

discretionary rulings. United States v. Orr, 969 F.3d 732, 741 

(7th Cir. 2020). It then balances that risk against the risk of 

injustice to the government if a new trial is ordered, which is 

determined by examining the time, money, and resources that 

would have to be diverted from other cases. Id.

The Seventh Circuit’s explanation is consistent with the 

plain language of the Liljeberg test and makes sense. Rulings 

on discretionary issues have the most potential for injustice 

in disqualification cases because they are reviewed by appellate courts for an abuse of discretion, granting great deference 

to the disqualified judge’s decisions. Cases in which the disqualified judge is required to assess the credibility of witnesses also have a high potential for injustice. See id. at 739–

41. The risk is amplified in judge-alone trials, where the judge 

is required to determine an accused’s guilt as well as exercise 

his broad discretion in adjudging the sentence. See id. at 739.

There was significant risk of injustice to Appellant in this 

case, as the military judge was required to make important 

discretionary rulings. Judge Rosenow was called upon to rule 

on defense motions to (1) admit, under exceptions to Military 

Rule of Evidence (M.R.E.) 412, evidence of the alleged victim’s

past consent to participate in the types of sexual acts for 

which he was charged; and (2) exclude evidence of Appellant’s 

other acts under M.R.E. 404(b). Judge Rosenow granted in 

part and denied in part both motions. United States v. Uribe, 

No. ACM 39559, 2020 CCA LEXIS 119, at *2, 2020 WL 

1896392, at *1 (A.F. Ct. Crim. App. Apr. 16, 2020)

(unpublished).

More importantly, this was a judge-alone trial. Thus, 

Judge Rosenow was required to assess the credibility of the 
United States v. Uribe, No. 20-0267/AF

Chief Judge STUCKY, concurring in part and dissenting in part

3

witnesses, determine whether Appellant was guilty and, after 

finding him guilty, exercise his broad discretion in selecting 

an appropriate sentence. In this case that ranged from no confinement and a dishonorable discharge to a dishonorable discharge and confinement for thirty years. The defense counsel 

argued that Appellant did not represent a threat to the community and, therefore, should not be incarcerated. Nevertheless, the military judge sentenced Appellant to a dishonorable 

discharge, confinement for twenty months, reduction to the 

grade of E-1, and a reprimand. 

On the other hand, the risk of injustice to the Government 

is very low. This was neither a long nor complicated trial. Appellant was charged with two specifications of sexually assaulting the same victim. The prosecution called few witnesses and, after excluding the sessions devoted to resolving 

motions, the record is not lengthy. A significant amount of 

time, money, and resources would not be required to retry Appellant. Although not specifically included in the Orr formulation of this factor, I have also considered the effect of requiring Appellant’s wife to testify again. After balancing the two 

sides, I conclude that the first factor favors Appellant.

The second Liljeberg factor invites the Court to consider 

the risk that denial of relief would produce injustice in other 

cases. The Supreme Court did not explain this factor further, 

but in deciding Liljeberg, the Court seemed to invert its application. Rather than finding that the denial of relief would 

produce injustice in other cases, the Supreme Court found 

that “providing relief in cases such as this will not produce 

injustice in other cases.” 486 U.S. at 868. Nevertheless, under 

the plain language of the second factor the risk of prejudice in 

other cases is very low, as it is doubtful Judge Rosenow will 

preside over other cases in which his friend is the prosecutor. 

Thus, this factor appears to favor the Government. 

The third Liljeberg factor favors Appellant, as the military 

judge’s social friendship with the prosecutor is precisely the 

appearance of impropriety that R.C.M. 902(a) was meant to 

prevent. In this case, a senior trial counsel was sent from a 

different circuit to Joint Base San Antonio to prosecute Appellant. After the chief judge of the circuit arraigned Appellant, he detailed a different military judge from a different 

circuit to preside over Appellant’s court-martial. Of all the 
United States v. Uribe, No. 20-0267/AF

Chief Judge STUCKY, concurring in part and dissenting in part

4

military judges in the Air Force, he detailed the senior trial 

counsel’s friend. During Appellant’s trial, the military judge 

was called upon to make several discretionary rulings to 

which appellate courts would defer to his judgment, most importantly the findings and the sentence. 

Under these circumstances, I conclude that Judge 

Rosenow’s refusal to recuse himself prejudiced Appellant’s 

substantial rights. He failed in his primary duty: to “serve as 

the independent check on the integrity of the court-martial 

process.” Hasan v. Gross, 71 M.J. 416, 418–19 (C.A.A.F. 

2012). Affirming Appellant’s convictions and sentence does 

not satisfy the Liljeberg factors or the appearance of justice. 

Therefore, I would set aside the findings and sentence without prejudice.