## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before CAMPANELLA, HERRING and WOLFE Appellate Military Judges

UNITED STATES, Appellee

v. Private First Class KARINA FLORES-SANTOS United States Army, Appellant

ARMY 20140066

Headquarters, III Co rps and Fort Hood Wade N. Faulkner, Mi litary Judge (trial) Jacob D. Bayshore, Mi litary Judge (DuBay) Colonel Richard W. Rousseau, St aff Judge Advocat e (pretrial) Colonel Ian G. Corey, Staff Judge Advocate (post-trial) Lieutenant Colonel Joseph M. Fairfield, Ac ting Staff Judge Advocate (DuBay)

For Appellant: Lieutenant Colonel Charles Loza no, JA; Major Andres Vazquez, Jr., JA; Major Daniel E. Goldman, JA (on brief); Colo nel Mary J. Bradley, JA; Major Andres Vazquez, Jr, JA; Major Daniel E. Goldman, JA (on motion for reconsideration and suggestion for reconsiderat ion en banc).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colone l A.G. Courie, III, JA; Major Daniel D. Derner, JA; Captain Christopher A. Clause n, JA (on brief).

24 April 2017

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SUMMARY DISPOSITION ON FURTHER REVIEW

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CAMPANELLA, Senior Judge:

A general court-martial composed of a military judge sitting alone convicted appellant, consistent with her pleas, of attempted distributi on of a controlled substance, conspiracy to distribute a contro lled substance, introd uction of marijuana, distribution of a controlled substance, an d wrongful use of cocai ne in violation of Articles 80, 81, and 112a of the Uniform Code of Military Justice, 10 U.S.C. §§ 880, 881, 912a (2012) [hereina fter UCMJ]. The convening authorit y approved the adjudged sentenced of a bad-conduct di scharge, ten months confinement, and reduction to the grade of E-1.FLORES-SANTOS—ARMY 20140066

2 On 8 June 2016 this cour t summarily affirmed the findings and sentence in
this case. United States v. Flores-Santos , ARMY 20140066 (Arm y Ct. Crim. App. 8 Jun. 2016) (summ. disp.). On 7 Ju ly 2016 appellant filed a motion for reconsideration and a suggest ion for reconsideration by the court en banc. We granted the motion for reconsid eration and again affirmed the findings an d sentence.
United States v. Flores-Santos , ARMY 20140066 (Army Ct . Crim. App. 29 Jul. 2016) (mem. op.).

Our superior court set asid e our decision a nd remanded appell ant’s case for a hearing pursuant to United States v. DuBay , 17 C.M.A. 147, 37 C.M.R. 411 (1967), to make findings of fact an d conclusions of la w related to the matter underlying the granted issue, which was:

WHETHER THE MILITARY JUDGE WAS DISQUALIFIED FROM PRES IDING IN APPELLANT’S
CASE WHERE HE PREVIOUSLY SERVED AS CHIEF
OF JUSTICE AND SUPERVISED ALL PROSECUTIONS FOR APPELLANT’S UNIT, AND HE FAILED TO
DISCLOSE THE FULL EXTENT OF HIS
RESPONSIBILITIES AND ACTIONS FROM HIS PRIOR POSITION, INCLUDING CO NSULTING ON CASES AT
THE PRE-PREFERRAL AND INVESTIGATION STAGE.

United States v. Flores-Santos , 76 M.J. 42 (C.A.A.F. 2016).

The DuBay hearing was conducted on 6 March 2017 a nd the military judge made findings of fact and conclu sions of law in his Ruling on DuBay Issue Regarding Military Judge’s Qu alification. (App . Ex. XIII). We hereby adopt his findings of fact and conclusions of law. We agree that Lieu tenant Colonel (LTC) (Ret.) Faulkner:

[W]as not disqualif ied under [Rule fo r Courts-Martial (hereinafter RCM)] 902(b) as he was not “counsel” in this case, and that even though Appellant wa ived any issues regarding [R.C.M.] 902(a) disqua lification, when considering the trial as a whole, a reasonable person would not question the partialit y of LTC (Ret.) Faulkner.
Even if this Court were to presume that [R.C.M.] 902(a) was violated and that Appellant did not waive that issue,
this Court finds no material prejudice to Appellant or
other facts that necessitate a re-hearing to ensure the public retains confidence in the military justice system.FLORES-SANTOS—ARMY 20140066

3 CONCLUSION

For the reasons stated prev iously, the findin gs of guilty and the sentence are
AFFIRMED.

Judge HERRING and Judge WOLFE concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court MALCOLM H. SQUIRES, JR.
Clerk of Court FOR THE COURT: