UNITED STATES NAVY-MARINE CORPS 

COURT OF CRIMINAL APPEALS

WASHINGTON, D.C.

Before

F.D. MITCHELL, J.R. MCFARLANE, M.C. HOLIFIELD

Appellate Military Judges

UNITED STATES OF AMERICA

v.

RICHARD T. PEARCE

CHIEF WARRANT OFFICER 3 (W-3), U.S. MARINE CORPS

NMCCA 201100110

GENERAL COURT-MARTIAL

Sentence Adjudged: 25 March 2011.

Military Judge: LtCol Robert Palmer, USMC.

Convening Authority: Commanding General, Marine Corps 

Installations East, Camp Lejeune, NC.

Staff Judge Advocate's Recommendation: LtCol J.M. Henry, 

USMC.

For Appellant: Capt David Peters, USMC.

For Appellee: LT Amy Freyermuth, JAGC, USN; Capt Cory 

Carver, USMC.

12 February 2015

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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. 

MCFARLANE, Senior Judge:

The appellant entered mixed pleas at a trial by general

court-martial with officer members. Pursuant to his pleas, the 

military judge found the appellant guilty of one specification 

of failure to go, one specification of violating a lawful 

general order, one specification of conduct unbecoming an 

officer and a gentleman, two specifications of fraternization, 
2

one specification of solicitation to disobey a lawful general 

order, two specifications of breaking restriction, and one 

specification of solicitation to alter an official document in 

violation of Articles 86, 92, 133, and 134, Uniform Code of 

Military Justice, 10 U.S.C. §§ 886, 892, 933, and 934. The 

members then convicted the appellant, contrary to his pleas, of 

one specification of attempting to have sexual intercourse with 

a woman not his wife, one specification of violating a lawful 

general order, two specifications of sodomy, one specification 

of adultery, and two specifications of solicitation to commit an 

offense, in violation of Articles 80, 92, 125, and 134, UCMJ, 10 

U.S.C. §§ 880, 892, 925, and 934. The members sentenced the 

appellant to confinement for six months, forfeiture of all pay 

and allowances, and a dismissal. The convening authority (CA) 

approved the adjudged sentence. 

This case is before us on remand by the United States 

Court of Appeals for the Armed Forces (CAAF). We begin with a 

brief recitation of the case’s procedural history. In his 

original appeal, the appellant raised eight assignments of 

error: 

(1) The Marcum factors are functionally equivalent to 

elements of Article 125, UCMJ, such that they must be 

pleaded, instructed upon, and proven beyond a reasonable 

doubt;

(2) The military judge abused his discretion and tainted 

the members panel by ruling that the adultery exception 

under MILITARY RULE OF EVIDENCE 504(c)(2)(A), MANUAL FOR COURTSMARTIAL, UNITED STATES (2008 ed.) allowed him to compel the 

appellant's spouse to testify adversely and thereafter not 

limiting her testimony to the alleged adultery;

(3) Specifications 1, 5, and 6 of Charge VI, adultery and 

solicitation, fail to state offenses because they do not 

allege the terminal element;

(4) The specification under Charge I, attempted adultery, 

fails to state an offense;

(5) The sole specification under Charge II, unauthorized 
3

absence, fails to state an offense because the date alleged 

does not include the year;

(6) Specifications 2, 3, and 7 under Charge VI, 

fraternization and solicitation, the specification under

Additional Charge II, breaking restriction, and 

Specifications 1 and 2 under Additional Charge III, 

breaking restriction and solicitation, fail to state 

offenses because they do not allege the terminal element;

(7) The guilty findings for Specifications 1, 5, and 6 of 

Charge VI are fatally ambiguous;

(8) The military judge's extra-judicial comments made after 

the court-martial create the appearance that the military 

judge abandoned his impartiality and deprived the appellant 

of a fair and impartial court-martial.

In our initial decision, United States v. Pearce, No. 201100110, 

2012 CCA LEXIS 449, unpublished op. (N.M.Ct.Crim.App. 28 Nov 

2012), we affirmed the findings and sentence as approved by the 

CA.

The appellant's subsequent appeal resulted in the CAAF 

setting aside our opinion and returning the case to the Judge 

Advocate General of the Navy for remand to this court for 

further consideration in light of United States v. Castellano, 

72 M.J. 217 (C.A.A.F. 2013), and United States v. Kish, 72 M.J. 

158 (C.A.A.F. 2013) (summary disposition). United States v. 

Pearce, 73 M.J. 54 (C.A.A.F. 2014) (summary disposition). On 

remand the appellant has essentially reframed his first and last 

original assignments of error, claiming that; 1) he was deprived 

of his constitutional right to an impartial judge, 2) that 

Marcum factors must be pleaded, and; 3) that the military judge 

erred by refusing to instruct the panel on the Marcum factors. 

After carefully considering the record of trial and the 

submissions of the parties, we find merit in the appellant’s

assertion that the military judge erred by failing to instruct 

the panel on the Marcum factors. After taking corrective action 

in our decretal paragraph and reassessing the sentence, we 

conclude that the remaining findings and the reassessed sentence 
4

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.1

Background

 The appellant’s first claimed error on remand focuses on

post-trial comments made by the military judge. Approximately 

15 months after he sentenced the appellant, the military judge 

presented a Professional Military Education (PME) lecture to 

five Marine law school students on active duty for the summer. 

This training regarded the practice of military justice in 

general, and the role of a trial counsel in particular. In 

discussing trial strategy, the military judge encouraged the 

junior officers to charge and prosecute cases aggressively, 

referred to “crushing” the accused, stated that Congress and the 

Commandant of the Marine Corps wanted more convictions, and 

opined that trial counsel should assume the defendant is guilty. 

Two of the officers who attended the PME provided written 

statements regarding the military judge's comments, which now 

form the basis for the appellant's assigned error. A fair 

reading of one statement is that the law student found the 

military judge's comments “odd” and “somewhat bothersome,” but 

also believed some of the comments were made in jest.

In Kish, 72 M.J. at 217, the CAAF ordered that these

comments by the military judge be the subject of a hearing 

pursuant to United States v. DuBay, 37 C.M.R. 411 (C.M.A. 1967). 

That hearing was completed and this court included the findings 

of fact and conclusions of law from that hearing in an Appendix 

to its decision in Kish, 2014 CCA LEXIS 358 (hereinafter DuBay

Ruling). Based on the context of these statements, this court 

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.” Kish, 2014 CCA LEXIS at *38. This court further 

 

1

 With respect to original assignments of error (AOE) 2-7, we adopt and 

incorporate herein those portions of our earlier decision addressing those 

AOEs and similarly decline to grant relief. United States v. Clifton, 35 M.J. 

79 (C.M.A. 1992). With respect to the three AOEs submitted on remand, we 

find the first assigned error to be without merit and that our resolution of 

the third assigned error makes the second moot.
5

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. The findings and the conclusions from the DuBay

Ruling remain those of this court.

Additional facts necessary to resolve the assignments of 

error are incorporated below.

Disqualification of Military Judge 

We review whether a military judge’s post-trial actions 

demonstrate actual or apparent bias de novo.2 “‘An accused has a 

constitutional 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)). A military 

judge’s impartiality is crucial to the conduct of a legal and 

fair court-martial. United States v. Quintanilla, 56 M.J. 37, 43 

(C.A.A.F. 2001).

“There is a strong presumption that a judge is impartial, 

and a party seeking to demonstrate bias must overcome a high 

hurdle, particularly when the alleged bias involves actions 

taken in conjunction with judicial proceedings.” Id. at 44

(citation omitted). “The moving party has the burden of 

establishing a reasonable factual basis for disqualification. 

More than mere surmise or conjecture is required.” Wilson v. 

Ouellette, 34 M.J. 798, 799 (N.M.C.M.R. 1991) (citing United 

States v. Allen, 31 M.J. 572, 601 (N.M.C.M.R. 1990), aff’d, 33 

M.J. 209 (C.M.A. 1991)).

There are two grounds for disqualification of a military 

judge, actual bias and apparent bias. R.C.M. 902; Quintanilla, 

56 M.J. at 45. 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 

 

2 The CAAF has applied this standard when resolving 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); United States v. Stefan, 69 M.J. 256, 258 (C.A.A.F. 2010) 

(considering de novo the qualification of a staff judge advocate to make the 

post-trial recommendation).
6

herself in any proceeding in which that military judge’s 

impartiality might reasonably be questioned.” 

With respect to the appearance of bias, the test we apply 

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 158 (citation and internal quotation marks omitted). This 

test may be met when there is “[a]ny conduct that would lead a 

reasonable man knowing all the circumstances to the conclusion 

that the judge’s impartiality might be reasonably questioned.” 

Id. at 158-59 (citing United States v. Kinchloe, 14 M.J. 49, 50 

(C.M.A. 1982)). “The appearance standard is designed to enhance 

public confidence in the integrity of the judicial system.” 

Quintanilla, 56 M.J. at 45 (citing Liljeberg v. Health Service 

Acquisition Corp., 486 U.S. 847, 860 (1988)). The appellant 

alleges both actual and apparent bias. 

As this court has already held that the military judge's 

PME statements do not support a determination of actual bias 

against service member defendants, and since, contrary to the 

appellant’s argument, there is nothing in the appellant’s record 

of trial to suggest that the military judge had a personal bias 

or prejudice concerning him or his case, we limit our review 

here to whether there was apparent bias concerning the 

appellant's case.

The appellant makes two arguments in support of a finding 

of bias.3

 First, the appellant argues that during an Article 

39(a), UCMJ, session concerning a defense motion regarding 

unlawful command influence, the military judge made 

“questionable comments about the defense bar and service as a 

defense counsel.” Appellant’s Brief of 1 Aug 2014 at 11. The 

appellant also argues that during a later Article 39(a) session 

regarding a discovery violation, the military judge “became 

agitated” with defense counsel’s voir dire of the military 

judge. Id. at 12. The appellant argues that these actions, 

along with the findings and the conclusions from the DuBay

 

3

 Although these arguments were made with respect to actual bias, we will 

consider them on the issue of apparent bias, given the absence of any 

specific argument by the appellant on that issue.
7

hearing, show a distain for the defense bar and create an 

apparent bias. We disagree. 

Contrary to the appellant’s assertions, our review of the 

military judge’s comments during the unlawful command influence 

motion evidence a jurist committed to ensuring that the 

appellant received a fair trial, and that the appellant’s 

counsel was not hampered with unlawful interference. When 

presented with evidence that the trial defense counsel (TDC) had 

been ordered by his commanding officer (CO)4 to refrain from 

contacting witnesses without first coordinating those contacts 

with the CO or the trial counsel, the military judge told the 

CO: “We can’t do it that way. The defense has to be 

uninhibited.” Record at 180. The military judge then had the 

CO rescind that order on the stand, and made it “crystal clear” 

to the TDC that he could call anyone he liked to properly 

represent his client. Id. at 185. It was only after the TDC 

indicated that he was still concerned about lingering animosity 

over the incident that the military judge made the comments 

about “career risks” the appellant now points to. Appellant’s 

Brief at 11. However, those comments were not made to express 

distain for defense counsel, but rather to explain that although 

the TDC had a legitimate concern held by all defense counsel, 

“we expect more out of our senior leaders in the military” and 

that the military judge, the Chief Defense Counsel of the Marine 

Corps, and others had all served as defense counsel without it 

damaging their careers. Record at 186. Nonetheless, the 

military judge went on to say that if counsel ever felt like 

they were being retaliated against for doing their job, then

they should let their chain of command and the judiciary know 

immediately, because such action would not be tolerated. 

Also taken out of context were the military judge’s remarks 

during the motion session regarding an alleged discovery 

violation. Although the military judge did become mildly 

agitated with the TDC, it was only after allowing numerous voir 

dire questions wherein the TDC kept mischaracterizing the 

 

4

 Although the appellant’s TDC reported to the Regional Defense Counsel, and 

then the Chief Defense Counsel of the Marine Corps, for purposes of fitness 

reports, he was assigned for administrative purposes (such as leave, 

training, etc.) to the Headquarters and Headquarters Squadron. The 

lieutenant colonel who gave the order in question was in command of that 

unit, and therefore the TDC’s commanding officer. 
8

military judge’s answers. Taken as a whole, the transcript 

shows that the military judge provided training wherein he 

advised a group of judge advocates that discovery is an 

affirmative obligation, that all evidence in the possession of 

both parties should be turned over without gamesmanship, and 

that failure by a party, such as the Government, to respond in a 

timely or appropriate fashion should be as a treated as a 

denial, and thus prompt the opposing party of file a motion to 

compel. The fact that the military judge became mildly annoyed 

at TDC’s questions challenging the legitimacy of what the TDC 

characterized as “constructive denial” does not serve to support 

an argument that the military judge held the defense bar, or the 

appellant, in distain. Id. at 359.

Accordingly, we find this assignment of error to be without 

merit.

Instructional Error

The appellant alleges the military judge erred by refusing 

to instruct the panel regarding the Marcum factors for the 

consensual sodomy specifications under Charge V. We agree. 

At the time of the appellant’s trial, the only court to 

have considered the issue had held that Marcum factors were 

questions of law to be decided by the military judge, not 

questions of fact to be decided by the members. United States 

v. Harvey, 67 M.J. 758, 763 (A.F.Ct.Crim.App. 2009), petition 

denied, 68 M.J. 489 (C.A.A.F. 2010). That view was later 

adopted by this court and the Army Court of Criminal Appeals. 

See United States v. Williams, 2011 CCA LEXIS 412 (Army 

Ct.Crim.App. 21 Dec 2011), rev’d in part on other grounds, 71 

M.J. 356 (C.A.A.F. 2012) (summary disposition); United States v. 

Stratton, 2012 CCA LEXIS 16, at *9-10 (N.M.Ct.Crim.App. 26 Jan 

2012). However, after our original decision in this case was 

issued, our superior court held that “whether a Marcum factor 

exists is a determination to be made by the trier of fact based 

on the military judge's instructions identifying facts or 

factors that are relevant to the constitutional context 

presented.” United States v. Castellano, 72 M.J. 217, 223

(C.A.A.F. 2013). Because the appellant’s convictions had not 

yet become final under Article 71(c)(1)(C), UCMJ, at the time of 
9

the CAAF’s decision, the ruling in Castellano is applicable to 

this case. 

In light of Castellano, we find that the military judge 

committed plain error. See Johnson v. United States, 520 U.S. 

461, 468 (1997) (“Where the law at the time of trial was settled 

and clearly contrary to the law at the time of appeal” appellate 

courts review for plain error.) Here, as in Castellano, “the 

members were instructed that they could convict Appellant of 

sodomy if they found nothing more than that the physical act had 

occurred.” Castellano, 72 M.J. at 219. Accordingly, failure to 

instruct the members on the Marcum factors was prejudicial 

error. Id. at 223. Thus, we set aside and dismiss the 

appellant's convictions for consensual sodomy.

Sentence Reassessment

Because of our action on the findings, we will reassess 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). Although a “‘dramatic 

change in the penalty landscape’ gravitates away from the 

ability to reassess” a sentence, United States v. Buber, 62 M.J. 

476, 479 (C.A.A.F. 2006) (quoting United States v. Riley, 58 

M.J. 305, 312 (C.A.A.F. 2003)), we find no such dramatic change 

here. 

While our decision reduces the maximum possible punishment 

from confinement for 25 years and 3 months, to confinement for 

18 years and three months, both punishments are so far removed 

from the six months of confinement actually awarded by the 

members as to render the difference legally insignificant. More 

importantly, nothing in our decision changes the nature of the 

criminal acts that could have been considered by the panel when 

determining a proper sentence. Both of the sodomy charges that 

we set aside had been merged for sentencing purposes with other 

charges at trial. One specification of consensual sodomy had 

been merged for sentencing purposes with a specification of 

attempted adultery, while the other had been merged with a 

specification of actual adultery. Because R.C.M. 1001(b)(4) 

allows the Government to present “evidence as to any aggravating 
10

circumstance directly relating to or resulting from the offense 

of which the accused has been found guilty[,]” the members could 

have properly considered that fact that the appellant engaged in 

consensual sodomy as part of his efforts to convince a 

subordinate to have adulterous sexual intercourse with him, and 

that on a different occasion he engaged in consensual sodomy as 

part of an adulterous sexual encounter with a subordinate’s 

wife. Accordingly, we are confident that the members would have 

imposed, and the CA would have approved, the previously adjudged 

sentence to six months confinement, total forfeiture of all pay 

and allowances, and a dismissal. 

Conclusion

 The findings of guilty to Specifications 1 and 2 of 

Charge V and Charge V, Sodomy, are set aside and those offenses 

are dismissed with prejudice. The remaining guilty findings and 

the sentence are affirmed.

Chief Judge MITCHELL and Judge HOLIFIELD concur. 

 For the Court

 

 

 

R.H. TROIDL

Clerk of Court