United States v. Greatting

Decision Date06 May 2008
Docket Number07-0575.
Citation66 M.J. 226
PartiesUNITED STATES, Appellee, v. Christopher A. GREATTING, Staff Sergeant, U.S. Marine Corps, Appellant.
CourtUnited States Court of Appeals, Armed Forces Court of Appeals

Argued Jan. 16, 2008.

ERDMANN , J., delivered the opinion of the Court, in which EFFRON , C.J., and BAKER and RYAN , JJ., joined. STUCKY , J filed a separate dissenting opinion.

For Appellant: Lieutenant Commander KristinaB. Reeves, JAGC, USN (argued); Lieutenant Commander M. Eric Eversole, JAGC, USN (on brief).

For Appellee: Major Brian K. Keller, USMC (argued) Commander PaulC. LeBlanc, JAGC, USN, and Lieutenant Commander JessicaM. Hudson, JAGC, USN.

Judge ERDMANN delivered the opinion of the court.

Staff Sergeant Christopher A. Greatting was the staff noncommissioned officer-in-charge of the K-9 Military Working Dog Section (K-9 Section) at Camp Pendleton. Consistent with his pleas at a general court-martial, Greatting was convicted of a number of charges arising from his supervision of the K-9 Section, as well as wrongful use of marijuana. At trial the defense moved for the military judge's recusal because he had presided over four companion cases and had privately discussed certain aspects of those cases with the convening authority's staff judge advocate (SJA). The motion was denied. The United States Navy-Marine Corps Court of Criminal Appeals affirmed the findings of guilty and the sentence. United States v. Greatting, No. NMCCA 200401945, 2007 CCA LEXIS 108, at *20, 2007 WL 1709533, at *8 (N.M.Ct.Crim.App. Mar. 29, 2007) . We granted review to consider whether the military judge's decision not to recuse himself was an abuse of discretion. 65 M.J. 345 (C.A.A.F.2007) .

[A] military judge shall disqualify himself or herself in any proceeding in which that military judge's impartiality might reasonably be questioned." Rule for Courts-Martial (R.C.M.) 902(a). Presiding over companion cases does not alone constitute grounds for recusal. United States v. Lewis , 6 M.J. 43, 45 (C.M.A.1978) . However, the ex parte discussion that took place between the military judge and the SJA prior to Greatting's court-martial and while clemency matters and appeals in the companion cases were pending would lead a reasonable person to question the military judge's impartiality. Considering the factors articulated by the Supreme Court in Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 864, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988) , we conclude that Greatting is entitled to relief. Accordingly, we reverse the Court of Criminal Appeals, set aside the findings and sentence, and authorize a rehearing.[1]


As the staff noncommissioned officer in charge of the K-9 Section at Camp Pendleton, Greatting was responsible for ensuring that the handlers and the dogs were properly trained, that there were proper records to document the training, and that the kennel was run in accordance with applicable regulations and orders. Greatting and his subordinates worked together to falsify paperwork that certified the dogs had completed aspects of a training regimen that were never undertaken.

In addition, with Greatting's knowledge and consent, some members of the unit boarded unauthorized non-military dogs at the base kennel. One of these non-military dogs, a trained attack dog, was seriously injured when the dog handlers tried to control him. Due to the dog's injuries, Greatting's subordinates were required to put the dog down. Greatting subsequently lied to law enforcement agents about the dog, reporting that the dog was fine after he knew the dog had been killed.

Four subordinate Marines in the K-9 Section were also convicted, consistent with their pleas, of charges arising from this conduct. All of the companion cases were heard before Judge C. Staff Sergeant Ruben Cadriel was convicted on April 16, 2003, at a general court-martial. In addition to charges arising from the operation of the K-9 Section, Cadriel was also convicted of assault and disobeying a superior commissioned officer. He was sentenced by Judge C to a bad-conduct discharge, confinement for four years, and reduction to E-1. On October 4, 2004, the convening authority approved the sentence, but suspended confinement in excess of seventy-five days pursuant to Cadriel's pretrial agreement.

The other three Marines were tried by special court-martial. Corporal Aaron L. Hutchings was convicted on July 1, 2003, Corporal Jamie A. Marmolejo on July 7, 2003, and Sergeant Christian M. Blue on September 10, 2003. Hutchings was sentenced to reduction to E-3. Marmolejo was sentenced to reduction to E-1 and hard labor without confinement for three months. Blue was sentenced to reduction to E-2 and confinement for seventy-five days. The convening authority approved Hutchings's sentence on October 31, 2003. On February 6, 2004, the convening authority approved only the reduction in Marmolejo's case. Blue's sentence was approved on May 28, 2004.

Greatting's court-martial was convened on June 5, 2003 and he was arraigned on August 11, 2003. By the date of Greatting's arraignment, the court-martial proceedings for Cadriel, Hutchings, and Marmolejo were completed, while Blue's court-martial was still pending. The convening authority had yet to take action in any of the cases.

At Greatting's arraignment, Judge C informed the parties:

I have detailed myself to this court-martial in my capacity as the Circuit Military Judge for the Sierra Judicial Circuit....
I will not be a witness for either side in this case, and I am not aware of any matters which I believe may be a grounds for challenge.
However, I would note for the record that I did preside over the cases of United States vs. Cadriel, Hutchings, and Marmolejo, which are all, I believe, related cases to this case.

Judge C asked if either side wanted to conduct voir dire or challenge his participation. Greatting's defense counsel requested the opportunity to reserve both “given the fact that we do not know who is going to be the ultimate military judge, although you do have the assignment authority." Judge C indicated that it was his intention to preside over the case but he would allow the defense to revisit voir dire and challenge at a later time. Greatting also reserved entering pleas at that time.

Court-martial proceedings for the last of Greatting's subordinates, Blue, concluded on September 10, 2003. About two weeks later, on September 23, 2003, Greatting signed a pretrial agreement, which was approved by the convening authority on September 30, 2003. The pretrial agreement provided, in part, that confinement in excess of fifteen months would be suspended, as would any forfeitures. Automatic forfeitures would be deferred for the benefit of Greatting's wife.

Greatting's court-martial reconvened on October 30, 2003. Prior to Greatting entering his pleas, his defense counsel requested the opportunity to conduct voir dire of the military judge. Judge C acknowledged that the underlying events in this case were the same as the events in the four companion cases in which he had presided. While he agreed that the companion cases dealt with the purported role played by Greatting in the various offenses, he stated that he could not recall the specifics of each case or whether each case touched upon Greatting.

Judge C went on to state:

If I had to say, my recollection was that Staff Sergeant Cadriel had a greater involvement in what was going on, although some of the charges which aren't here today, the accused is not going to plead guilty to today, involved drinking in the work spaces; and I believe Staff Sergeant Greatting was implicated in those cases that involved that allegation and was implicated in those as having approved that conduct as well as the falsification of certain records, the failure to train dogs and test them to certain standards.

The defense counsel then asked Judge C whether he had discussed these cases with anyone other than a fellow military judge. Judge C responded that he had, as it was his practice to conduct post-trial critiques with counsel. He also stated that he talked to “the staff judge advocate and probably his deputy [,] not about [Greatting's] case other than that it was coming, they mentioned it was coming, but about the other cases." The military judge recounted his interaction with the SJA as follows:

With respect to Cadriel, it was that I thought they sold the case too low given his culpability, his admissions in the Court, given the severity of his conduct, and the repercussions of his conduct on the junior Marines that were involved in the section, the security of this installation.
I think I also mentioned following the other, as you indicated three cases and I think that's right, the other three cases, that I felt given the level of culpability of Cadriel versus the younger Marines who were perhaps more guided or motivated by misguided loyalty to the two staff NCO's that they worked for, I questioned the appropriateness of their being at a special court-martial.

Judge C stated that he would not second-guess or presuppose what the pretrial agreement provided for in Greatting's case and that he had no preconceived ideas of what the sentence should be. He said that he believed he would be able to put the other cases out of his mind and judge the case on the facts introduced in the proceeding before him. Following voir dire, the defense counsel moved for Judge C to recuse himself on the basis of implied bias under R.C.M. 902(a). The motion was denied.

After Judge C accepted Greatting's pleas and conducted a sentencing hearing, he sentenced Greatting to six months confinement, reduction to E-1, and a bad-conduct discharge. The confinement limitation of...

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    • United States
    • United States Court of Appeals, Armed Forces Court of Appeals
    • 3 d3 Julho d3 2019
    ... ... The ... court concluded that the military judge did not abuse his ... discretion in finding no basis for disqualification ... Id. at 456 ... Disclosure ... is no inoculation against disqualification, see United ... States v. Greatting, 66 M.J. 226 (C.A.A.F. 2008). But ... without full disclosure in this case, we are left with a ... record that cannot dispel the reasonable questions of a ... reasonable observer about the military judge's ... impartiality. We see no viable way to cure this lapse; the ... ...
1 books & journal articles
  • Clearing the High Hurdle of Judicial Recusal: Reforming RCM 902A
    • United States
    • Military Law Review No. 204, July 2010
    • 1 d4 Julho d4 2010
    ...progressive criminal justice statute that gave strong protections to servicemembers. 7 The military justice system continues to provide 4 66 M.J. 226 (C.A.A.F. 2008). 5 66 M.J. 312 (C.A.A.F. 2008). 6 Greatting , 66 M.J. at 229; McIlwain , 66 M.J. at 313. 7 NAT’L INST. OF MILITARY JUST., REP......

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