UNITED STATES NAVY-MARINE CORPS 

COURT OF CRIMINAL APPEALS

WASHINGTON, D.C.

Before

J.R. MCFARLANE, K.M. MCDONALD, M.C. HOLIFIELD

Appellate Military Judges

UNITED STATES OF AMERICA

v.

DANIEL W. SANDERS

CORPORAL (E-4), U.S. MARINE CORPS

NMCCA 201200202

SPECIAL COURT-MARTIAL

Sentence Adjudged: 8 March 2012.

Military Judge: LtCol Robert G. Palmer, USMC.

Convening Authority: Commanding Officer, Headquarters and 

Service Battalion, Marine Corps Recruit Depot, Parris Island, 

SC.

Staff Judge Advocate's Recommendation: Col E.R. Kleis, USMC.

For Appellant: LT Carrie E. Theis, JAGC, USN.

For Appellee: LCDR Keith B. Lofland, JAGC, USN.

30 September 2014

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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.

 

PER CURIAM: 

A military judge, sitting as a special court-martial, 

convicted the appellant, pursuant to his pleas, of knowingly using 

an interactive computer service for carriage in interstate 

commerce of obscene, lewd, lascivious, and filthy matter,1 in 

violation of Article 134, Uniform Code of Military Justice, 10 

 

1 A violation of 18 U.S.C. § 1462, charged under Clause 3 of Article 134, UCMJ. 
2

U.S.C. § 934. The military judge sentenced the appellant to 

confinement for twelve months, reduction to pay grade E-1, and a 

bad-conduct discharge. A pretrial agreement limited punishment to 

the jurisdictional maximum of a special court-martial and had no 

effect on the sentence adjudged. The convening authority (CA) 

approved the sentence as adjudged and, except for confinement in 

excess of ten months2 and the punitive discharge, ordered it 

executed.

This case is before us upon remand by the United States Court 

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

recitation of the case’s procedural posture. In his original 

appeal, the appellant assigned one error: that the military judge 

was disqualified by his inflexible attitudes about sentencing and 

by allowing his perceptions of what Congress and the Commandant of 

the Marine Corps expect from Marine Corps courts-martial to enter 

into his deliberations. The appellant’s assignment also alleged 

unlawful command influence (UCI). In our initial decision, United 

States v. Sanders, No. 201200202, 2012 CCA LEXIS 441, unpublished 

op. (N.M.Ct.Crim.App. 13 Nov 2012), we affirmed the findings and 

the 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 our decision in United States v. Kish,

No. 201100404, 2014 CCA LEXIS 358, unpublished op. 

(N.M.Ct.Crim.App. 17 Jun 2014).3 The appellant has essentially 

reframed his original assignment of error, now claiming that he 

was deprived of his constitutional right to an impartial judge. 

An additional assignment of error claims the military judge’s 

close personal relationship with the CA amounted to apparent UCI. 

After carefully considering the record of trial and the 

submissions of the parties, we conclude the facts of this case, 

viewed together with post-trial comments and actions of the 

military judge, give rise to an appearance of bias. We address 

the remedy in our decretal paragraph.

 

2 As a matter of clemency, the CA suspended all confinement in excess of ten 

months for a period of one year, at which time, unless sooner vacated, the 

suspended portion will be remitted.

3 United States v. Sanders, 73 M.J. 54 (C.A.A.F. 2013) (summary disposition). 
3

Background

The first assigned error focuses on post-trial comments made 

by the military judge. Approximately 15 weeks 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.4 He also said that a trial counsel who loses 

a child pornography case through incompetence will “go to hell.”5 

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.6 

Less than a week after the PME training, the military judge 

ruled on a motion to recuse or disqualify himself in an unrelated 

case.7 During a hearing on the motion, the military judge 

“apparently played some role in the appearance of a senior judge 

advocate” who provided “what amounted to a character defense of 

the military judge.”8 That senior judge advocate is the CA in this 

case. 

The PME comments by the military judge were the subject of a 

hearing pursuant to United States v. DuBay, 17 C.M.A. 147 (C.M.A. 

1967).9 Based on the context of these statements, this court 

 

4 Appellant’s Brief of 16 Aug 2012 at Appendices I and II. 

5 Id. 

6 Id. 

7 In United States v. Bremer, 72 M.J. 624, 626 (N.M.Ct.Crim.App. 2013), we 

modified and then affirmed the findings, and set aside the sentence with a 

rehearing on sentence authorized. Following the rehearing, we affirmed the 

approved sentence. United States v. Bremer, 2014 CCA LEXIS 27, unpublished op. 

(N.M.Ct.Crim.App. 23 Jan 2014) (summary disposition). 

8 Bremer, 72 M.J. at 627.

9 Appendix to Kish, 2014 CCA LEXIS 358, at 15-39 (DuBay Hearing Findings of Fact 

and Conclusions of Law of 15 July 2013) (hereinafter Dubay ruling).
4

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.” This 

court further 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.).10 The findings and conclusions from the DuBay Ruling remain 

those of this court. 

Additional facts that concern the procedural posture of this 

case or are necessary to discuss the assignments of error are 

incorporated below. 

Apparent Bias 

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

demonstrate actual or apparent bias de novo.

11 “‘An accused has a 

constitutional right to an impartial judge.’”12 The Rules for 

Courts-Martial provide that a military judge must disqualify 

himself if the military judge's impartiality might reasonably be 

questioned.13 Specific grounds for disqualification include 

personal bias and prejudice concerning a party.14 A military 

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

court-martial.15 

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

a party seeking to demonstrate bias must overcome a high hurdle, 

 

10 DuBay Ruling at 38. 

11 The CAAF has applied this standard when facing 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). 

12 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)). 

13 R.C.M. 902(a) states that a military judge shall “disqualify himself or 

herself in any proceeding in which that military judge’s impartiality might 

reasonably be questioned.” Disqualification may be required even if the 

evidence does not establish actual bias. United States v. Quintanilla, 56 M.J. 

37, 43 (C.A.A.F. 2001).

14 R.C.M. 902(b)(1).

 

15 Quintanilla, 56 M.J. at 43.
5

particularly when the alleged bias involves actions taken in 

conjunction with judicial proceedings.”16 “The moving party has 

the burden of establishing a reasonable factual basis for 

disqualification. More than mere surmise or conjecture is 

required.”

17 

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.”18 This test may be met when there is “any conduct that 

would lead a reasonable man knowing all the circumstances to the 

conclusion that the judge’s impartiality might reasonably be 

questioned.”19 “The appearance standard is designed to enhance 

public confidence in the integrity of the judicial system.”20 

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 servicemember 

defendants,21 and the appellant having made no showing that the 

military judge had an actual personal bias or prejudice concerning 

him or his case, we find no actual bias here. Accordingly, we now 

look to whether there was apparent bias concerning the appellant’s 

case. 

We are convinced a reasonable person fully aware of the 

context of the PME statements would not be concerned regarding the 

judges impartiality in this case. It would be one thing, 

therefore, if the only evidence before us was the military judge’s 

PME comments. But it is quite another when these statements are 

 

16 Id. at 44. 

17 Wilson v. Ouelette, 34 M.J. 798, 799 (N.M.C.M.R. 1991) (citing United States 

v. Allen, 31 M.J. 572, 605 (N.M.C.M.R. 1990), aff'd, 33 M.J. 209 (C.M.A. 1991)). 

18 Martinez, 70 M.J. at 157 (citation and internal quotation marks omitted). 

19 Id. at 158-59 (citing United States v. Kincheloe, 14 M.J. 40, 50 (C.M.A. 

1982)).

 

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

Corp., 486 U.S. 847, 860 (1988)).

21 DuBay Ruling at 38. 
6

viewed in conjunction with the sum of several relevant facts. 

Specifically:

(1) The charged conduct involved child pornography. 

Although the appellant was convicted of only one 

specification involving “obscene, lewd, lascivious, 

and filthy matter,” the guilty plea inquiry revealed 

these materials included “child pornography or images 

of actual children engaging in sexually explicit 

conduct.”22 Two images were verified by the National 

Center for Missing and Exploited Children as involving 

known minors. 

(2) The sentence was the maximum possible. The 

military judge essentially sentenced the appellant to 

the maximum sentence he was authorized to award.23 (We 

are in no way saying the punishment was 

inappropriately severe; we merely note that the 

maximum extent of the punishment here is relevant to 

an apparent bias analysis.)

(3) The PME statements were made approximately three 

months after trial. Although opinions may differ 

whether this is a meaningfully close temporal 

relationship between the court-martial and PME 

training, it is sufficiently close that an objective 

observer could reasonably connect the two events.

(4) The military judge had a close relationship with 

the CA. The appellant raises this relationship in the 

context of UCI, but we believe it also bears on the 

issue of apparent bias. That their relationship is so 

close that the CA would come to court and testify to 

the military judge’s fitness as a judge and “an 

honorable man”24 is one more block upon which a 

 

22 Record at 24. 

23 The military judge did not impose a fine or forfeiture. However, having 

discussed automatic forfeitures with the appellant, he was certainly aware of 

the effect his sentence would have on the appellant’s pay, that is, roughly the 

equivalent of adjudged forfeiture of two-thirds pay for 12 months. Record at 

38. 

24 Bremer, 72 M.J. at 627.
7

reasonable person could base his appraisal of the 

judge’s impartiality. 

As we noted in Kish, the military judge’s statements during 

the PME lecture “reflect exceptionally poor judgment and invite 

questions regarding judicial temperament and professionalism.”25 

While an examination of the circumstances surrounding the PME 

lecture place the statements properly in context, and none of the 

above mentioned facts standing alone would raise the specter of 

bias, we find that a reasonable person knowing all the 

circumstances of the lecture, when combined with the additional 

facts relevant to this case, would question the integrity of the 

judicial system.26 Accordingly, we find apparent bias. 

Remedy 

Where apparent bias exists, the CAAF has adopted a three-part 

test27 for determining whether a reversal of a conviction is 

necessary to vindicate the public’s confidence in the military 

justice system: 

(1) What is the risk of injustice to the parties 

in the particular case?

(2) What is the risk that the denial of relief 

will produce injustice in other cases?

(3) What is the risk of undermining the public's 

confidence in the judicial process?

First, the risk of injustice to the parties is high. Judges 

are invested with extraordinary discretion in determining an 

appropriate sentence. The military judge’s imposition of the most 

severe sentence possible in this case is called into question by 

the appearance of bias.

Secondly, while denial of relief in this case will not itself 

produce an injustice in other cases, granting relief will have the 

salutary effect of reinforcing the demand for judicial 

 

25 DuBay Ruling at 38. 

26 See Martinez, 70 M.J. at 159.

 

27 Quintanilla, 56 M.J. at 80-81 (citing Liljeberg, 486 U.S. at 864).
8

impartiality.

Thirdly, and arguably most importantly, we turn to the 

question of the public's confidence in our judicial process. When 

examining the facts of this case in light of the military judge's 

public remarks, a reasonable member of the public would conclude 

that the judge’s impartiality in this case might reasonably be 

questioned. We find that the military judge's conduct warrants a 

remedy to vindicate the public's confidence in the military 

justice system.

We need not address the appellant’s claim of UCI. The 

appellant pleaded guilty and does not claim that the acceptance of 

his pleas was in any way defective. As for his sentence, the 

remedy provided in our decretal paragraph addresses any appearance 

of bias on the part of the military judge, regardless of the 

source.

Conclusion 

The findings are affirmed and the sentence is set aside. A 

rehearing on sentence is authorized. 

For the Court

 

 

 

R.H. TROIDL

Clerk of Court