Unpacking Uribe

In United States v. Uribe, a divided court upheld Staff Sergeant Ryan Uribe’s conviction on one specification of Article 120, UCMJ, despite his claim that the military judge abused his discretion by rejecting a joint motion to recuse him.

Background

Judge Mark Rosenow and Major BJ met in 2012 and became friends in 2014 while stationed together as senior trial counsel. Major BJ attended both Judge Rosenow’s bachelor party and wedding in 2015. And when the pair was station together at Travis Air Force Base in 2016, they “hung out socially” five times in two years. Major BJ’s girlfriend also was present for the birth of Judge Rosenow’s children in 2017.

In 2018, Judge Rosenow was detailed to Uribe’s court-martial at which Major BJ served as senior trial counsel. Due to their past relationship, Major BJ requested an R.C.M. 802 conference to discuss his “concern about the perception of fairness.” After the conference, the Defense moved to recuse Judge Rosenow pursuant to R.C.M. 902(a). The government did not oppose the motion, leading Judge Rosenow to interpret the motion as a joint request. Still, Judge Rosenow denied the motion.

Uribe opted for a bench trial, and Judge Rosenow ultimately acquitted him of one sexual assault specification but convicted him of a second sexual assault specification. He sentenced Uribe to a reduction to E-1, a dishonorable discharge, confinement for twenty months, and a reprimand.
Uribe appealed his conviction, raising ten assignments of error including Judge Rosenow’s failure to recuse himself. Regarding the recusal motion, the Air Force CCA found that Judge Rosenow did not abuse his discretion, and, even if he had, “reversal was not warranted under the Supreme Court’s Liljeberg” factors. It found no other errors.

The CAAF Ruling

The CAAF addressed the question of whether the Air Force CCA “erred in finding the military judge did not abuse his discretion in denying a joint motion to recuse.” The ruling produced three opinions. Judge Ohlson, joined by Judge Sparks, found that the military judge did abuse his discretion by denying the request for recusal; however, he agreed with the Air Force CCA that the Liljeberg factors did not warrant relief.

Chief Judge Stucky concurred in Judge Ohlson’s finding that the military judge abused his discretion by rejecting the recusal motion. But he dissented as to Judge Ohlson’s analysis of the Liljeberg factors. The Chief would have found that, under the factors, the denial of the motion prejudiced Uribe’s substantial rights.

Judge Maggs, joined by judge Crawford, concurred in the judgement. However, he did so on the basis that the military judge did not abuse his discretion in denying the 902(a) motion. Consequently, Judge Maggs’ opinion did not reach the question of the Liljeberg factors.
In sum, the court held three to two that the military judge abused his discretion, split two to one on whether the Liljeberg factors compelled reversal, and ultimately voted four to one to affirm the Air Force CCA’s ruling.

Whether Judge Rosenow abused his discretion?

Judge Ohlson and Judge Maggs agreed that the applicable standard was abuse of discretion, which occurs when a military judge’s ruling is “arbitrary, fanciful, clearly unreasonable or clearly erroneous.” But the opinions disagreed on how that standard applied to the facts.

Judge Ohlson focused on the totality of the relationship in light of the applicable law: “whether a reasonable person knowing all the circumstances would conclude that the military judge’s impartiality might reasonably be questioned.” The opinion suggested that, based on Judge Rosenow and Major BJ’s interactions, their friendship went “far beyond” a typical professional relationship. The opinion also chastised Judge Rosenow for his failure to end their close interactions after he became a military judge at Travis Air Force Base, and it suggested that Judge Rosenow’s discussion of his relationship on the record, though “commendable,” did not alleviate concerns about prejudice. Finally, the opinion noted that no case cited by Judge Rosenow’s opinion denying the 902(a) motion included a relationship comparable to his and Major BJ’s. Based on the “frequency of their contact” and “the nature of their relationship,” Judge Ohlson found that the military judge abused his discretion.

Judge Maggs, on the other hand, assessed the pair’s interactions individually. He noted that the bachelor party and wedding occurred three years before the court-martial. He also cited the unique circumstances that led BJ’s girlfriend to attend the birth of Judge Rosenow’s children—Judge Rosenow was out of town and the couple had no other close friends or family in the area.  And Judge Maggs, regarding the pair’s social interactions from 2016 to 2018, cited a Seventh Circuit case that states, “[A] judge need not disqualify himself just because a friend—even a close friend—appears—as a lawyer.” Based on the foregoing, Judge Maggs argued that the military judge could have reasonably concluded that these individual interactions would not lead members of the public to question his impartiality and therefore his decision did not fall “outside the range of choices reasonably arising from the applicable facts and the law.” 

Whether, under the Liljeberg factors, the CAAF should reverse?  

Judge Ohlson and Chief Judge Stucky disagreed about whether, under Liljeberg, the CAAF should have provided Uribe relief. Their most prominent disagreement regarded the first Liljeberg factor, described by United States v. Martinez as whether there was “any specific injustice that [the appellant] personally suffered.”  

Judge Ohlson found that Uribe failed to identify “any specific injustice he suffered at the hands of th[e] military judge.” The military judge’s ruling did not demonstrate personal bias, the CCA found no error, and nothing indicated that Major BJ attempted to exploit his friendship to favor the government. Moreover, the judge acquitted Uribe on one specification and the government had a strong case as to the other specification. Consequently, Judge Ohlson ruled that the first factor, as described by Martinez, weighed in the government’s favor.

In contrast, Judge Stucky would have overturned Martinez as contrary to Liljeberg’s express language and opted for the Seventh Circuit’s two-part test. First, the court would look to “whether the trial judge’s personal bias could have influenced the court’s discretionary rulings,” and, second, the court would balance “that risk against the risk of injustice to the government if a new trial is ordered.” Under this analysis, Judge Stucky found that there was significant risk of injustice in this case based on the military judge’s important discretionary rulings, his position as the trier of fact, and his role in sentencing the defendant. He also found that the risk to the government did not outweigh the risk to the defendant, as the trial was neither long nor complex, the prosecution only called a few witnesses, and the case would not require a significant amount of time, money, or resources to retry.

The judges also disagreed on the application of Liljeberg’s third factor: whether, based on the view of an objective observer, the facts of the case “risk undermining the public’s confidence in the military justice system.” Arguing that the public “would still have confidence in the military justice system,” Judge Ohlson pointed to defendant’s acquittal on the first specification and the compelling evidence of defendant’s guilt as to the second specification. Judge Stucky, in contrast, suggested that the judge and trial counsel’s social relationship was “precisely the appearance of impropriety that R.C.M. 902(a) was meant to prevent.”

Conclusion
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Notably, no opinion suggested that a joint motion for recusal compels a military judge to recuse. As Judge Maggs remarked, a “per se rule requiring disqualification whenever both parties request it would be contrary to R.C.M. 902(a)’s” text. And, though Judge Ohlson cautioned military judges to be “especially circumspect” in such situations, he did not express disagreement with Judge Maggs on this point. In consequence, joint 902(a) motions remain highly fact-specific decisions. 

ENS Jacob Weaver

Intern