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Military Judge failed to recuse himself, findings in sexual assault case set aside.

On 15 March 2018, the Air Force Court of Criminal Appeals (AFCCA) set aside the findings and sentence in United States v. Vargas because a military judge failed to recuse himself when he should have. In this case, Senior Airman (E-4) Vargas (appellant) was convicted of two specifications of attempted abusive sexual contact, three specifications of sexual assault, two specifications of abusive sexual contact, and two specifications of assault consummated by a battery, in violation of Articles 80, 120, and 128. The evidence presented in this case involved four alleged victims. Appellant was sentenced to confinement for 29 years, reduction to E-1, and a dishonorable discharge. However, this sentence was set aside on appeal based on the military judge’s failure to recuse himself based on his knowledge of possible unlawful command influence (UCI). The military judge in this case was Colonel (COL) Eller. Colonel Eller’s need to recuse himself under R.C.M. 902, was specifically based on his knowledge of the actions involving the military judge who had previously been assigned to Vargas’ case, Lieutenant Colonel (LTC) CL. Lieutenant Colonel CL had presided over several Article 120 cases prior to appellant’s. Based on his decisionmaking in those prior cases, a senior trial counsel (STC) and a special victim’s counsel (SVC) came together to discuss getting LTC CL removed from any future Article 120 cases. They believed that he had an event in his life occurred that prevented him from remaining neutral in these cases. While having discussions about the need for LTC CL to be removed from Article 120 cases, the SVC involved asked other SVCs in Germany not to discuss this matter because it could be considered UCI and they did not want defense to know that they had lost confidence in LTC CL and were trying to remove him from the bench. Eventually, the Chief Trial Judge and COL Eller, who served as LTC CL’s supervisor, decided to remove LTC CL from cases involving Article 120. He was therefore removed from appellant’s case and COL Eller then became the presiding military judge over appellant’s case. Appellant’s defense counsel submitted a motion for COL Eller to recuse himself based on his direct knowledge of LTC CL’s removal and the potential UCI involved. COL Eller refused to recuse himself stating that defense failed to present the necessary evidence. The AFCCA found this to be in error because it was obvious that COL Eller was extremely familiar with LTC CL’s removal and the reasons for it since he was directly involved in making that decision. The AFCCA stated that COL Eller had personal knowledge of the situation and could have been a witness in the case regarding the potential issue of UCI. The AFCCA concluded that “[t]aken as a whole in the context of this trial, . . . the appearance of the court-martial’s impartiality was put into doubt by the military judge’s actions.” Due to the fact that the military judge failed to recuse himself in this situation, the AFCCA set aside the findings and sentence in appellant’s case. This appellate issue was not based on the evidence in this case, but instead based on the military judge’s actions. This shows that you may have a valid appeal even if it seemed that the evidence weighed against you at your court-martial. You will not know if you have a valid appellate issue until you speak with someone who has the experience to know what to look for. I have that experience. Call today and we will talk through your case. To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.

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