United States v. Clark

31 M.J. 721, 1990 CMR LEXIS 937, 1990 WL 142772
CourtU S Air Force Court of Military Review
DecidedAugust 30, 1990
DocketACM 28182
StatusPublished
Cited by4 cases

This text of 31 M.J. 721 (United States v. Clark) is published on Counsel Stack Legal Research, covering U S Air Force Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Clark, 31 M.J. 721, 1990 CMR LEXIS 937, 1990 WL 142772 (usafctmilrev 1990).

Opinion

DECISION

KASTL, Senior Judge:

Captain Clark is a stellar aviator with over 19 years’ service. He met MV (a British national) at Kadena Air Base, Japan. MV was visiting another officer. Before leaving Kadena, the relationship between MV and Clark matured into a sexual one.

The two exchanged addresses and remained in contact. MV eventually came to the United States on a tourist visa. She subsequently advised Clark that her visa was expiring. One way to remain would be to marry an American.

MV was unsuccessful in locating a suitable partner, so Clark offered to marry her. He cautioned that their arrangement must be covert since he was already married. In November 1988, Clark executed a Nevada marriage license application representing that he was free to marry; he then wed MV at the Heart of Reno Chapel in Nevada. That same day, Clark signed a United States Department of Justice form entitled “Petition for Alien Relative.”

Despite his pleas, Clark was found guilty, by a general court-martial with members, of bigamy and wrongful marriage to evade the immigration laws, in [723]*723violation of Article 134, UCMJ, 10 U.S.C. § 934; and conduct unbecoming an officer — making false statements to state authorities that he was free to marry — in violation of Article 133, UCMJ, 10 U.S.C. § 933. His approved sentence is a dismissal, forfeiture of $2,877.00 pay per month for three months, and confinement for three months.

I

Captain Clark argues that the military judge unfairly denied a defense motion for recusal based upon bias against his civilian attorney. The appellant also contends that said bias persisted throughout the trial, depriving him of an overall fair hearing.

Civilian counsel’s Article 38(c), 10 U.S.C. § 838(c) brief characterizes this court-martial as “not a high point of dignity for the Air Force judiciary.” Instead, counsel insists, “the military judge’s prior behavior towards the same civilian defense counsel, his extrajudicial statements expressing hostility toward the civilian counsel, and his pretrial conduct in the case sub judice all indicate that recusal was not only appropriate but required.” The Article 38(c) brief upbraids the judge for exhibiting animosity, an acerbic attitude, and hostility towards the civilian attorney.

The Government vehemently rejects any notion that the military judge displayed personal animus against the appellant or his counsel. Instead:

The Government contends that, in light of the incessant repetition of civilian defense counsel’s motions, his failure to accept any ruling of the military judge, and the overall nature of his conduct, that this military judge conducted himself in an exemplary manner. In light of this record, it can fairly be said that accepting appellant’s argument would place a new weapon in the defense counsel’s arsenal: obstreperousness. Society does not have enough judges to require disqualification whenever a defense counsel engages in such tactics.

We begin analysis with the tenet that a military judge — like his civilian counterpart — is obligated to disqualify himself in any proceeding in which his impartiality reasonably might be questioned. R.C.M. 902(a); United States v. Smith, 30 M.J. 631, 634 (N.M.C.M.R.1990) and cases cited. The burden of proof is on the party seeking disqualification. United States v. Wright, 47 C.M.R. 637 (A.F.C.M.R.1973), pet. denied, 48 C.M.R. 1000 (C.M.A.1973); Idaho v. Freeman, 478 F.Supp. 33 (D.C.Idaho 1979); United States v. Baker, 441 F.Supp. 612 (M.D.Tenn.1977) (extensive citations in both cases). See generally Southern Pacific Communications v. A.T. & T., 740 F.2d 980 (D.C.Cir.1984) and Kuhnell, Challenging the Military Judge, A.F.L.Rev. 50, 62-63 (Winter 1975).

Recusal or disqualification is grounded on the trial judge’s sound discretion; the standard of review on appeal is whether the judge abused that discretion under R.C.M. 902. Smith, 30 M.J. at 634; United States v. Talbott, 12 U.S.C.M.A. 446, 31 C.M.R. 32 (1961). A military judge’s disclaimer of partiality carries great weight. United States v. Kratzenberg, 20 M.J. 670, 672 (A.F.C.M.R.1985); United States v. Montgomery, 16 M.J. 516, 518 (A.C.M.R.1983); see also In re Drexel Burnham Lambert, Inc., 861 F.2d 1307 (2d Cir.1988); In re United States, 666 F.2d 690 (1st Cir; 1981); Potashnick v. Port City Construction Co., 609 F.2d 1101, 1111 (5th Cir.1980); see generally United States v. Stroup, 29 M.J. 224, 231-232 (C.M.A.1989).

In light of the precedents listed, we find no error in the military judge refusing to recuse himself. Furthermore, after examining the entire record, we find no error in the proceedings prejudicial to the substantial rights of Captain Clark. We will say more at the end of this opinion about civility between trial judge and attorney. For the present, we emphasize that almost all of the complained-of incidents occurred outside the presence of the members. Thus, nothing contained within those unfortunate and often-heated exchanges influenced the voting members.

We have also assessed a small handful of allegedly-percussive exchanges occurring [724]*724in the members’ presence. We find little at this juncture beyond the usual give and take of a hard-fought legal contest. Therefore, the defense argument fails. In reaching this conclusion, we have considered both the examples cited in the Article 38(c) brief as supposedly indicating bias as well as all other exchanges within the transcript.

II

Civilian counsel claims that he was unfairly denied a security clearance. Such clearance, he avers, would enable the defense team to discuss relevant classified aspects of Captain Clark’s duties and perhaps plan a defense strategy focusing on the appellant’s job stress.

There was no use of classified data in this case and no showing that security matters were material to any reasonable line of defense or mitigation. See Mil.R.Evid. 505(i)(4)(B). We hold that the military judge acted reasonably and did not abuse his discretion. See United States v. Gagnon, 21 U.S.C.M.A. 158, 44 C.M.R. 212 (1972); United States v. Baasel, 22 M.J. 505 (A.F.C.M.R.1986); United States v. Herrington, 33 C.M.R. 814 (A.F.B.R.1963); see generally Maher, The Right to a Fair Trial in Criminal Cases Involving the Introduction of Classified Information, 120 Mil.L.Rev. 83, 115-116 (Spring 1988).

III

The appellant suggests that his counsel was improperly gagged by an order of the military judge. The military judge had originally banned “extrajudicial statements to the media or any other person concerning the facts surrounding this case.”

A presiding judge is responsible for the orderly conduct of the court-martial, and his oversight powers are indeed considerable. See

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Butcher
53 M.J. 711 (Air Force Court of Criminal Appeals, 2000)
United States v. Proctor
34 M.J. 549 (U S Air Force Court of Military Review, 1992)
United States v. Warnock
34 M.J. 567 (U.S. Army Court of Military Review, 1991)
United States v. Keyes
33 M.J. 567 (U.S. Navy-Marine Corps Court of Military Review, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
31 M.J. 721, 1990 CMR LEXIS 937, 1990 WL 142772, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-clark-usafctmilrev-1990.