United States v. Melton

1 M.J. 528, 1975 CMR LEXIS 741
CourtU S Air Force Court of Military Review
DecidedAugust 29, 1975
DocketACM 21846
StatusPublished
Cited by9 cases

This text of 1 M.J. 528 (United States v. Melton) 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. Melton, 1 M.J. 528, 1975 CMR LEXIS 741 (usafctmilrev 1975).

Opinion

DECISION

ROBERTS, Senior Judge:

Tried by a military judge sitting alone as a general court-martial, the accused stands convicted, contrary to his pleas of not [529]*529guilty, of two specifications of selling heroin in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. The approved sentence is a dishonorable discharge, forfeiture of all pay and allowances, confinement at hard labor for 18 months, and reduction to airman basic.

The issue assigned for our consideration by appellate defense counsel is whether the military judge should have recused himself, or in the alternative, afforded the accused the opportunity of withdrawing his request for trial by military judge alone, after the accused’s earlier plea of guilty was changed to not guilty. We find no error in the procedure followed by the military judge and affirm the conviction.

During a preliminary Article 39(a), 10 U.S.C. § 839(a) Session, the military judge approved the accused’s request for trial by judge alone after he had assured himself that the accused was fully aware of the consequences of his choice. Immediately thereafter he announced that the court was assembled, and the accused was arraigned. The trial defense counsel indicated the accused intended to plead guilty, and the military judge conducted a thorough and painstaking plea providence inquiry that fully complied with the mandate of United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969). During the inquiry, the accused related that he had in fact, on the dates alleged in the specifications, sold heroin to a person whom his roommate had introduced as a drug user, but who later turned out to be an undercover agent of the Office of Special Investigations (OSI). Having satisfied himself of the providence of the accused’s plea, the military judge accepted it and entered findings of guilty.

The special agent involved was called as a witness by the prosecution and related in detail the circumstances of the sales with which the accused was charged. Subsequently, the accused elected to testify under oath in extenuation and mitigation of the offenses of which he had been convicted. In his testimony he asserted that the heroin he sold actually belonged to his roommate, and he intimated his belief that his roommate had “set him up” for apprehension by the OSI. He further suggested his suspicion that his roommate had been working as an informer for the OSI and may have deliberately arranged the sale in question in order to enhance his own standing with that organization and to shift suspicion from himself. The accused further gave the impression that the heroin in question might have been supplied to the roommate by the OSI.

The military judge alertly recognized that the assertions made by the accused potentially raised defenses of entrapment or agency. See United States v. Hodge, 48 C.M.R. 576 (A.F.C.M.R.1974). He thereupon correctly questioned the accused further concerning the providence of his plea, and advised him of the nature of these two potential defenses. See United States v. Timmins, 21 U.S.C.M.A. 475, 45 C.M.R. 249 (1972). To prevent any misunderstanding on the accused’s part, the military judge also advised the accused how he might be guilty as an aider and abettor of his roommate. See United States v. Nocho, 50 C.M.R. 693 (A.F.C.M.R. 1975). The military judge directed the accused to discuss these matters more fully with his counsel and consider whether he wished to present any evidence concerning them to the court. Following a brief recess for this purpose, the trial defense counsel informed the military judge that the accused desired to withdraw his plea of guilty. The military judge permitted the accused to withdraw his plea, informed him and his counsel that he would not consider any evidence previously presented, unless requested to do so by counsel for either side, and that he would begin the trial afresh. The trial then proceeded as if the accused had pleaded not guilty; the OSI agent involved, and other witnesses, were recalled, and the case was re-presented. Subsequently, the military judge found the accused guilty of the offenses with which he was charged and imposed the sentence noted above. Of utmost significance, the trial defense counsel made no objection to the procedure followed, neither did he challenge the military judge’s continued participation in the case.

[530]*530Appellate defense counsel argue that the military judge should have recused himself from further participation in the trial, because having heard the accused’s plea of guilty, the admissions he made during the plea providence inquiry, and the clear evidence of the OSI agent involved, all prior to the withdrawal of the plea, the military judge must have formed a positive opinion as to the guilt of the accused, and was therefore subject to a challenge for cause. See Manual for Courts-Martial, United States, 1969 (Rev.), paragraph 62f(10). It is urged further that even though the military judge might not have formed a positive or definite opinion as to guilt, he should have relieved himself in the interest of having the trial and subsequent proceedings free from substantial doubt as to legality, fairness, or impartiality. See Manual for Courts-Martial, paragraph 62/(13), supra.

We need not decide whether, under the particular circumstances of this case, the military judge was subject to a challenge for cause; none was interposed, and as counsel and the accused were obviously aware of the military judge’s prior exposure to the evidence and facts in the case, any ground for challenge that might have existed was clearly and knowingly waived by the accused. United States v. Weaver, 9 U.S.C.M.A. 13, 25 C.M.R. 275 (1958); United States v. Airhart, 23 U.S.C.M.A. 124, 48 C.M.R. 685 (1974). Even had a challenge to the military judge’s further participation in the case been made, we would not be prepared to hold that failure to sustain the challenge would be improper. The mere fact that a possible ground for challenge exists does not render a military judge ineligible to sit. A judge is to be liberal in passing on a challenge, but the challenge is, after all, addressed to his sound discretion, and his denial of a challenge will not, ordinarily, be disturbed unless there has been a clear abuse of discretion. United States v. Wright, 47 C.M.R. 637 (A.F.C.M.R.1973). The United States Court of Military Appeals has held that the general basis for recusation is personal bias on the part of the military judge rather than previous exposure to the same or similar issues. United States v. Jarvis, 22 U.S.C.M.A. 260, 46 C.M.R. 260 (1973). That Court has also held that there is generally no restriction on a military judge trying a case alone, after he has found a plea of guilty to be improvident and set it aside. United States v. Hodges, 22 U.S.C.M.A. 506, 47 C.M.R. 923 (1973). We are ever mindful, too, of the oft-repeated principle expressed in both military and federal cases that a judge “has as much an obligation not to recuse himself when there is no occasion to do so as there is to recuse himself when such occasion exists.” See United States v. Wright, supra, and cases cited therein.

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Bluebook (online)
1 M.J. 528, 1975 CMR LEXIS 741, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-melton-usafctmilrev-1975.