United States v. Copening

34 M.J. 28, 1992 CMA LEXIS 3, 1992 WL 9891

Opinions

Opinion of the Court

COX, Judge:

Appellant claims that he was prejudiced by an ex parte conversation between the military judge and trial counsel while appellant’s case was still pending at trial. For reasons set forth below, we reject appellant’s claim and affirm the decision of the Court of Military Review. Contrary to his pleas, appellant was convicted by a military judge sitting as a general court-martial of one specification of larceny, in violation of Article 121, Uniform Code of Military Justice, 10 USC § 921. He was sentenced to a bad-conduct discharge, confinement for 4 months, total forfeitures, and reduction to E-l. The convening authority approved the sentence.

Appellant was charged with stealing a gold necklace from a fellow soldier. At trial, defense counsel moved to exclude the necklace based on lack of probable cause to apprehend and search appellant. The military judge, Judge Casida, found no probable cause and ruled that the evidence would be excluded. In so ruling, Judge Casida stated, “It pains me to do this. I find nothing more despicable than a barracks thief, Specialist Copening.” Judge Casida then granted the Government a continuance for purposes of appeal.

Later that day, Judge Casida coached the inexperienced trial counsel on motions practice and on possible theories of admissibility in a “Bridging the Gap” discussion.

Footnotes

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* During this conversation, Judge Casida learned that the case was not over as he had thought. Instead, trial counsel indicated that he had other theories of admissibility, as yet unpresented. Subsequent to this conversation, the Government filed a motion for reconsideration of the ruling on admissibility of the necklace.

Judge Casida recused himself from the case because of his ex parte communications with trial counsel and because of his statement to the accused upon finding the evidence inadmissible. Judge Neurauter replaced Judge Casida and reconsidered the motion to suppress de novo. The Government argued the search was valid based on probable cause, consent, or the good-faith exception. Judge Neurauter admitted the necklace based on consent and, subsequently, convicted appellant of larceny.

Appellant seeks relief on two theories. First, appellant claims he was prejudiced because trial counsel was given the opportunity to consider what he had done wrong, consider what Judge Casida had told him in the ex parte meeting, correct any problems, and litigate the motion again. Second, appellant argues that the appearance of impropriety created by the ex parte conversation generates the perception that the judiciary and the Government acted in concert. This “taint” on the proceedings is the prejudice suffered by appellant, which he argues can be removed only by dismissing the charge.

On appeal, the Court of Military Review set aside the findings and sentence, and dismissed the charge on June 23, 1989. The court also denied the Government’s request for reconsideration on July 21, 1989. The Government then requested reconsideration en banc. The Court of Military Review on October 12,1989, ordered a hearing pursuant to United States v. DuBay, 17 USCMA 147, 37 CMR 412 (1967), to address specific questions. See 32 MJ 512, 516-19 (1990). Following the hearing, the Court of Military Review, sitting en banc, affirmed the findings and the sentence. 32 MJ 512. This Court granted review of the following issue:

WHETHER THE ARMY COURT OF MILITARY REVIEW ERRED BY HOLDING, AFTER FINDING THAT THE MILITARY JUDGE HEARING APPELLANT’S CASE HAD AN IMPROPER EX PARTE CONVERSATION WITH THE TRIAL COUNSEL IN APPELLANT’S CASE, THAT APPELLANT MUST SHOW ACTUAL PREJUDICE BEFORE THE FINDINGS AND SENTENCE CAN BE SET ASIDE.

Article 59(a) of the Uniform Code of Military Justice, 10 USC § 859(a), provides that “[a] finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused.” This Court has made it abundantly clear that ex parte communications between counsel and a judge will not be condoned. United States v. Wilkerson, 1 MJ 56, 57 n. 1 (C.M.A.1975). Absent manifest unfairness, however, charges are neither dismissed, nor reversal granted, for such error. See, e.g., United States v. Adams, 785 F.2d 917, 921 (11th Cir.), cert. denied, 479 U.S. 1009, 107 S.Ct. 650, 93 L.Ed.2d 706 (1986); United States v. Walsh, 700 F.2d 846, 858 (2d Cir.), cert. denied, 464 U.S. 825, 104 S.Ct. 96, 78 L.Ed.2d 102 (1983); Greico v. Meachum, 533 F.2d 713, 719 (1st Cir.), cert. denied, 429 U.S. 858, 97 S.Ct. 158, 50 L.Ed.2d 135 (1976); United States v. Chavira, 25 MJ 705, 708 (ACMR 1987); cf. United States v. Dean, 13 MJ 676 (AFCMR 1982).

The Court of Military Review found, after reviewing the results of the extensive DuBay hearing, that: (1) trial counsel was “prepared to present ... other theories of admissibility at the time Judge Casida ruled ... no probable cause [existed] for the search”; (2) Judge Casida believed “the case was over” when “[h]e entered into the conversation” with trial counsel; (3) the request for reconsideration was the staff judge advocate’s decision, upon advice from the Trial Counsel Assistance Program, and “was not prompted by the ... ex parte” communication; (4) “legal and factual matters surrounding the evidentiary issues in the case were not discussed” between Judges Casida and Neurauter; (5) Judge Casida’s improprieties were remedied by his recusal; and (6) Judge Neurauter’s decision was free from taint. 32 MJ at 516-19.

The Court of Military Review made an outstanding effort to establish the facts and determine the impact of Judge Gasida’s actions on the results in this case. The DuBay hearing showed that Judge Casida did not provide the Government with the theory of admissibility and that his comments had no impact upon the outcome of the proceedings. Sufficient evidence exists in the record to support the court’s finding that any taint or prejudice was removed by Judge Casida’s recusal. Thus, the decision of the Court of Military Review was not erroneous.

The decision of the United States Army Court of Military Review is affirmed.

Judges CRAWFORD, GIERKE, and WISS did not participate.

Military judges conduct post-trial critiques with both trial and defense counsel for the purpose of improving trial skills, as encouraged by the United States Army Trial Judiciary Standard Operating Procedure. To avoid future problems, we strongly recommend that military judges not conduct "Bridging the Gap” discussions when there is any possibility of future action in a case. We also recommend that both counsel be present during these sessions. See 32 MJ 512, 513 n. 1 (ACMR 1990).