CAAF will hear oral argument in the Coast Guard case of United States v. Sullivan, No. 15-0186/CG (CAAFlog case page), on Tuesday, May 12, 2015, at 9 a.m. The case involves the conviction of a senior Coast Guard Captain (O-6), with 27 years of service, of wrongful use of cocaine, and CAAF will consider two issues:

I. Whether the Government carried its burden of proving that the convening authority’s categorical exclusion of all flag officers was harmless.

II. Whether the military judge abused his discretion in denying challenges from both parties to his impartiality based on prior personal relationships with individual military counsel, the accused, trial counsel, several members, several witnesses, and the staff judge advocate.

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of a single specification of wrongful use of cocaine in violation of Article 112a. He was sentenced to pay a $5,000 fine and to be reprimanded. That sentence did not trigger automatic review by the CCA, but the Judge Advocate General of the Coast Guard referred the case to the court under Article 69(d). The CCA issued an unpublished opinion last September (discussed here) affirming the findings and sentence, and then CAAF granted review.

The factual basis for the issues that CAAF will review are closely tied to Appellant’s status as a senior Coast Guard officer. The court-martial members selected by the convening authority for Appellant’s trial were all Captains (like Appellant):

Before signing the convening order, the convening authority told his staff judge advocate (SJA) and Deputy SJA that he in-tended to exclude all flag officers from the panel. In a stipulation of expected testimony, the par-ties agreed that the convening authority, if called to testify under oath, would say that he excluded flag officers because of their busy schedules. However, as found by the military judge, the convening authority made no effort to deter-mine whether flag officers would be in fact available for the court-martial.

App. Br. at 3 (citations to record omitted). But Appellant raised this issue at trial, and the military judge rejected it, ruling that:

The convening authority’s consideration of flag officer availability for court member duties was motivated by a desire to select members who would actually serve on the panel, as opposed to officers who would be detailed and then excused because they were not available. There is no evidence of a desire or attempt to stack the court.

Gov’t Br. at 4 (quoting ruling). The judge also found that assuming an improper selection of members, any error was harmless.

The factual basis for the second issue is that both the Government and the Defense moved for the military judge to disqualify himself based upon his personal relationships with the trial participants. These relationships were the product of the small size of the Coast Guard, and particularly the Coast Guard judge advocate community. The military judge refused to refuse himself, but he did independently (though unsuccessfully) seek out a replacement judge to preside over Appellant’s court-martial.

Appellant’s brief identifies and discusses three justifications that the Coast Guard CCA considered for the convening authority’s exclusion of flag officer from Appellant’s court-martial:

(1) the Convening Authority’s future assignment responsibilities, (2) the possibility of a flag officer’s undue influence on other members, and (3) expected availability issues.

App. Br. at 12 (marks omitted).  The first basis involves the convening authority’s pending reassignment as the detailing officer for Coast Guard flag officers, and Appellant’s brief highlights how this is a puzzling rationale for excluding potential members because “the same notion would preclude any convening authority from appointing any person who served (or could expect to serve) under his or her command – a situation that is entirely normal.” App. Br. at 12. The second basis involves the influence of rank within the panel; something that is already prohibited and addressed in every court-martial. Finally, the third basis is rejected in Appellant’s brief as fundamentally flawed:

Excluding them from consideration cannot be sustained in any event as an a priori matter; some checking must be done before a decision is made to exclude eligible personnel. What is more, a categorical exclusion based on anticipated unavailability, even if it were permissible in theory, would have to take into account the universe of statutorily eligible offic-ers, including flag and general officers from the other armed forces. “Retired members of any Regular component and members of Reserve components of the armed forces are eligible to serve as members if they are on active duty.” R.C.M. 502(a)(1) (Discussion) (also noting eligibility of NOAA and U.S. Public Health Service officers “when assigned to and serving with an armed force”). The convening authority’s a priori wholesale judgment about availability thus was predicated on far too narrow a focus.

App. Br. at 13-14.

The Government’s response is to argue that any error was harmless, focusing on the six factors from United States v. Bartlett, 66 M.J. 426, 431 (C.A.A.F. 2008). The Bartlett factors are at the center of another case that is on CAAF’s docket this term and that was argued in March: United States v. Ward, No. 15-0059/NA (CAAFlog case page). Appellant’s brief – while focusing on the Government’s burden to prove harmlessness – looks beyond those factors, even going so far as to assert that improper selection of members “are properly analyzed as structural error” that can never be harmless and require automatic reversal. App. Br. at 18. A colorful footnote adds:

We therefore respectfully assert structural error as an additional string to our bow on Issue I. Because, however, CAPT Sullivan is entitled to relief on the ground that the gov-ernment never carried its burden of showing harmlessness under a case-specific approach, there is no need to employ a structural-error analysis.

App. Br. at 19 n. 3. If Appellant were to prevail on this issue, it would likely involve a significant reinterpretation (or expansion) of the Bartlett factors. If CAAF were to find this error structural, it would represent a radical change in military justice jurisprudence. But even without such a finding, between this case and Ward CAAF may well find a reason to reformulate the test for errors involving improper selection of members.

Yet in a reply brief, Appellant makes a more pragmatic argument:

Flag officers must be in the mix to satisfy the statute and this Court’s settled jurisprudence. All that is required is the modest time and effort needed to check on individual officers’ actual availability. If this creates an insuperable practical problem for the government (which we do not for an instant believe), it should seek legislation.

Reply. Br. at 4. This argument seems awfully straightforward and workable, and the Government will likely face questions about it during oral argument.

On the second issue, Appellant’s brief casts the military judge’s refusal to recuse himself in an impossible-to-understand light:

It is as startling today as it was at trial that the military judge refused to recuse himself in light of motions from both the defense and the government. While the position of the parties in a case is not determinative, the concerns expressed by experienced counsel may “cast light on what a reasonable per-son might find questionable.” National Union Fire Ins. Co. v. Continental Ill. Corp., 639 F. Supp. 1229 n.1 (N.D. Ill. 1986). Here the parties were not feigning combat: this was a totally hard-fought case in which neither side pulled its punches. It is scarcely an everyday experience in the Coast Guard (or any branch, for that matter) for a respected senior O-6 to stand be-fore a general court-martial accused of drug abuse and obstruc-tion of justice. Against this backdrop, the fact that the prosecution fired the first shot in urging recusal is tremendously significant. Worse yet, the defense, which agreed with the government about little else in this protracted trial, had reached the same conclusion. And bafflingly, even the judge must have thought there was a problem since he claimed to have taken steps to find a substitute (albeit one who – needlessly – had to be senior to CAPT Sullivan and – improperly – would leave Judge Felicetti’s trial date intact).

App. Br. at 22. Yet the Government’s brief emphasizes that Appellant previously sought recusal only for an appearance of bias:

At trial, the Appellant repeatedly stated that his concern was with the appearance of bias by the military judge, not with actual bias. JA at 110, 111, 115, 116, 117, 121, 284-85. The CCA found that the Appellant conceded that actual bias did not exist. JA at 9. That court focused only on the appearance of bias, an argument which it ultimately found unconvincing. Id. at 9-10. Now, for the first time, the Appellant argues to this Court that the military judge was actually biased because his relationships “cast a cloud over his ability to remain impartial” and because he and the Appellant were in the same year group for promotion. Appellate Br. at 25. That assertion is wholly without merit.

Gov’t Br. at 26. The Government’s brief also asserts that:

Despite professional contacts throughout the Coast Guard judge advocate community and a twenty-one-year-old social interaction with the Appellant, the military judge did not need to recuse himself from the case to maintain impartiality. The Appellant has failed to overcome the high hurdle necessary to warrant relief.

Gov’t Br. at 32. Additionally, the Government asserts that any error is harmless, highlighting that:

The Appellant has not pointed to a single ruling, comment, or fact at trial that indicates the military judge demonstrated bias or was prejudiced against the Appellant. The argument that the Appellant was prejudiced by the rulings of a judge that the Appellant himself at trial admitted was actually impartial is without merit.

Gov’t Br. at 33.

Appellant’s reply brief doesn’t really address the Government’s assertion that any claim of actual bias was waived by concessions made at trial, but it does make a practical (if overly colorful) argument for rejecting the Government’s argument for harmlessness:

Finally, public confidence in the administration of justice precludes a finding of harmlessness. The Coast Guard has been around since 1790 in one form or another; there is no sign of its withering away. Its personnel happily do not generate many disciplinary issues, but neither is it a crime-free zone. See generally FY14 Annual Report of the Code Committee on Military Justice 136 (2015). Members of this small armed force have a right to expect that those who preside over its infrequent courts-martial will not be enmeshed in a web of relationships as longstanding, variegated and pervasive as those apparent on this record. Judge Felicetti was not imagining things when he com-mented that an observer might wonder. (J.A. at 280.) He should have been more decisive instead of trying to have it both ways. This Court should seize the opportunity to underscore the importance of avoiding situations that threaten public confidence in the administration of justice in the armed forces.

Reply Br. at 9.

There is strongly-worded military justice precedent on the issue of judicial bias. “As in the civilian context, recusal based on the appearance of bias is intended to ‘promote public confidence in the integrity of the judicial process.’” Hasan v. Gross, 71 M.J. 416, 418 (C.A.A.F. 2012) (quoting Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 858 n. 7 (1988)). See also Liteky v. United States, 510 U.S. 540, 548 (1994) (“what matters is not the reality of bias or prejudice but its appearance.”). Moreover, questions of judicial appearance are particularly important in courts-martial, “where trial judges wear government green and blue and not just judicial black.” United States v. Butcher, 56 M.J. 87, 94 (C.A.A.F. 2001) (Baker, J. concurring). “The validity of this system depends on the impartiality of military judges in fact and in appearance.” Hasan, 71 M.J. at 419.

In this case, the military judge seemingly engaged in an extra-judicial search for a replacement after having rejected motions from both sides to recuse himself. Like other extra-judicial actions by personnel serving as military judges that impact a court-martial or its participants, this search certainly raises suspicions about the appropriateness of the judge’s refusal to recuse himself.

From a broader perspective, the circumstances of this issue seem to stress the application of military justice in the small and tightly-knit Coast Guard to the breaking point. Regardless of the result, CAAF’s decision will likely have a significant impact on the way the Coast Guard handles military justice issues in the future.

Case Links:
CGCCA opinion
Blog post: Analysis of CGCCA opinion
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

One Response to “Argument Preview: United States v. Sullivan, No. 15-0186/CG”

  1. FormerNavyJAG says:

    Along with Mr. Fidell and his IMC, I represented Sullivan at trial.  At the time I was a lieutenant, but I was a direct accession to the Navy, and had a tremendous deal of trial experience prior to my service.  I separated from active duty in 2011, and am now an elected District Attorney.  If CAAF overturns Sullivan, the military is going to have to move to exclusively specialized criminal attorneys.  I consider myself an expert on Georgia criminal law and the rules of evidence, have had many, many convictions affirmed on appeal (and very few reversed), and I still find the issues CAAF granted review unwieldy, even given 20/20 hindsight.  I can’t imagine an attorney who has only a handful of years working in prosecution or defense advising a convening authority today.