United States v. Quintanilla

delivered the opinion of the Court.

INDEX

PROCEDURAL HISTORY 40

PART A. JUDICIAL DISQUALIFICATION 40

I. INTRODUCTION 40

II. JUDICIAL CONDUCT 41

A. THE RESPONSIBILITIES OF A MILITARY JUDGE 41

B. PRODUCTION OF WITNESSES 41

C. STANDARDS OF CONDUCT — IN GENERAL 42

D. IMPARTIALITY 43

E. EX PARTE COMMUNICATIONS 44

F. DISQUALIFICATION UNDER THE UCMJ AND THE MANUAL FOR COURTS-MARTIAL 44

G. PROCEDURE 45

III. BACKGROUND 46

A. THE RECORD OF TRIAL 46

B. POST-TRIAL PROCESSING 68

C. ADDITIONAL EVIDENCE CONCERNING THE CONFRONTATIONS DISCLOSED DURING APPELLATE REVIEW 70

D. DESCRIPTIONS OF THE CONFRONTATIONS OUTSIDE THE RECORD OF TRIAL 70

E. DESCRIPTION OF AN EX PARTE COMMUNICATION BETWEEN THE MILITARY JUDGE AND TRIAL COUNSEL 74

F. THE MILITARY JUDGE’S DECISION TO LIMIT DISCLOSURE AT TRIAL 75

IV. DISCUSSION 76

A. WAIVER UNDER RCM 902(e) 77

B. APPEARANCE OF BIAS UNDER RCM 902(a) 78

C. REMEDY 80

PART B. LEGAL SUFFICIENCY OF THE EVIDENCE, INSTRUCTIONS, AND EXPERT TESTIMONY 81

I. LEGAL SUFFICIENCY OF THE EVIDENCE SUPPORTING THE CHARGE OF FORCIBLE SODOMY (ADDITIONAL CHARGE I) 81

A. BACKGROUND 81

B. DISCUSSION 82

II. FINDINGS INSTRUCTIONS 82

A. BACKGROUND 82

B. DISCUSSION 83

III. ADMISSION OF EXPERT WITNESS TESTIMONY 83

A. BACKGROUND 83

B. DISCUSSION 84

PART C. CONCLUSION 85

*40PROCEDURAL HISTORY

The present case produced lengthy and complex proceedings not only at trial, but also during post-trial consideration by the convening authority and the Court of Criminal Appeals. Charges against appellant were referred to a general court-martial on April 14, 1996, and the court-martial held its first session on May 7, 1996. The court-martial, which was composed of officer and enlisted members, convicted appellant, contrary to his pleas, of forcible sodomy of a child under the age of 16, indecent assault, and indecent acts, in violation of Articles 125 and 134, Uniform Code of Military Justice, 10 USC §§ 925 and 934, respectively. On August 22, 1996, the court-martial sentenced appellant to a bad-conduct discharge, confinement for three years, forfeiture of $300 pay per month for 36 months, and reduction to the lowest enlisted grade. Following various post-trial submissions, the case was transferred to a different convening authority, who approved these results on July 21, 1997. The litigation at the Court of Criminal Appeals was marked by numerous requests for extensions by both parties. On April 17, 2000, the Court of Criminal Appeals affirmed in a published opinion. 52 MJ 839 (2000).

Upon appellant’s petition, we granted review of the following issues:

I. WHETHER THE MILITARY JUDGE ERRED TO THE PREJUDICE OF APPELLANT WHEN HE ABANDONED HIS IMPARTIAL JUDICIAL ROLE AND THEREAFTER FAILED TO DISQUALIFY HIMSELF SUA SPONTE, PURSUANT TO RULE FOR COURTS-MARTIAL 902, SUBSECTIONS (a) AND (b).

II. WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT BY FINDING WAIVER AND NO PREJUDICE WHEN THE “INTEMPERATE” MILITARY JUDGE ABANDONED HIS IMPARTIAL JUDICIAL ROLE AND THEREAFTER FAILED TO DISQUALIFY HIMSELF SUA SPONTE, PURSUANT TO RULE FOR COURTS-MARTIAL 902, SUBSECTIONS (a) AND (b).

III. WHETHER THE EVIDENCE OF RECORD WAS LEGALLY INSUFFICIENT TO SUPPORT A FINDING OF GUILTY AS TO THE CHARGE OF FORCIBLE SODOMY (ADDITIONAL CHARGE I AND ITS SPECIFICATION).

IV. WHETHER THE MILITARY JUDGE’S ERRORS IN THE FINDINGS INSTRUCTIONS CAUSED PREJUDICIAL ERROR IN APPELLANT’S CASE.

V. WHETHER THE GOVERNMENT FAILED TO DISCLOSE MATERIAL EXCULPATORY EVIDENCE TO THE DEFENSE DURING APPELLANT’S COURT-MARTIAL, IN VIOLATION OF APPELLANT’S DUE PROCESS RIGHTS UNDER THE FIFTH AMENDMENT TO THE CONSTITUTION.

VI. WHETHER THE MILITARY JUDGE ERRED IN ADMITTING THE GOVERNMENT’S EXPERT WITNESS’S TESTIMONY OVER THE DEFENSE COUNSEL’S DAUBERT OBJECTION.

For the reasons set forth below, we affirm the findings in part and remand the balance of the case for further proceedings. Part A of this opinion concerns the issue of judicial disqualification. Part B concerns issues of legal sufficiency of the evidence, instructions, and expert testimony.

PARTA. JUDICIAL DISQUALIFICATION

I. INTRODUCTION

The first two granted issues pertain to a series of out-of-court confrontations between the military judge and a civilian witness, Mr. Bernstein, in which the military judge initiated physical contact and used profanity. Although some information about the confrontations was placed in the record through a series of partial revelations, the military judge did not ensure that a complete disclosure of the facts was set forth in the record of trial. Moreover, the record does not reflect evidence of a critical, ex parte discussion *41in the midst of the proceedings between the military judge and trial counsel, described in a post-trial memorandum prepared by the trial counsel. Many of the details concerning the confrontations were not revealed at trial, but were set forth in separate investigative records compiled during the trial and immediately thereafter, which were not made available to the defense until several years after the trial.

II. JUDICIAL CONDUCT

A. THE RESPONSIBILITIES OF A MILITARY JUDGE

The position of military judge was established through amendments to the Uniform Code of Military Justice made by the Military Justice Act of 1968. The 1968 amendments represented an effort to “streamline court-martial procedures in line with procedures in U.S. district courts ... and give [military judges] functions and powers more closely allied to those of Federal district judges.” S.Rep. No. 90-1601, at 3 (1968), U.S.Code Cong. & Admin.News 1968, pp. 4501, 4503-04. As a result of that legislation, the military judge has “judicial stature and authority in the courtroom” that “closely approximate[s] that of a civilian trial judge.” 114 Cong. Rec. 30564 (1968) (remarks of Rep. Philbin).

The military judge is the presiding authority in a court-martial and is responsible for ensuring that a fair trial is conducted. Art. 26, UCMJ, 10 USC § 826; RCM 801(a) and Discussion, Manual for Courts-Martial, United States (2000 ed.). The judge has broad discretion in carrying out this responsibility, including the authority to call and question witnesses, hold sessions outside the presence of members, govern the order and manner of testimony and argument, control voir dire, rule on the admissibility of evidence and interlocutory questions, exercise contempt power to control the proceedings, and, in a bench trial, adjudge findings and sentence. See, e.g., Arts. 39(a), 46, 48, and 51, UCMJ, 10 USC §§ 839(a), 846, 848, and 851; Mil. R.Evid. 104(a), 611(a), and 614, Manual, supra; RCM 801(a)(3) (Discussion), 802, 803, 809, 912, 922(c), and 1007(a); see also Weiss v. United States, 510 U.S. 163, 167-68, 114 S.Ct. 752,127 L.Ed.2d 1 (1994). “In short, a military judge does the type of things that civilian judges do.” United States v. Graf, 35 MJ 450, 457 (CMA 1992), cert. denied, 510 U.S. 1085, 114 S.Ct. 917, 127 L.Ed.2d 206 (1994).

There are important distinctions, however, between a military judge and a federal civilian judge, aside from the absence of tenure discussed in Weiss, supra. A federal civilian judge typically has jurisdiction over all cases arising under applicable federal law, but a military judge does not exercise general jurisdiction over cases arising under the UCMJ. A military judge may exercise authority only over the specific case to which he or she has been detailed. Art. 26; Weiss, supra at 172, 114 S.Ct. 752. In contrast with the civilian judiciary, a military judge has no courtroom, clerk of court, or marshals. Instead, the military judge is almost entirely dependent upon the facilities and personnel made available by the convening authority for the conduct of the trial. Many of the administrative functions performed by clerks of court or U.S. Marshals in civilian life are assigned in the military justice system to the trial counsel, who also acts as the prosecutor. See RCM 502(d)(5)(Discussion); compare Fed. R.Crim.P. 17(a) and (d).

B. PRODUCTION OF WITNESSES

The trial counsel’s responsibilities include the duty to obtain the presence of witnesses for both the prosecution and the defense, including the issuance of military orders for active duty witnesses and subpoenas for civilians. See RCM 703(e). Absent a subpoena, a civilian cannot be compelled to testify at a court-martial.

A military judge may issue a warrant of attachment to compel the presence of a civilian witness, but “only upon probable cause to believe that the witness was duly served with a subpoena, that the subpoena was issued in accordance with ... [applicable] rules, that appropriate fees and mileage were tendered to the witness, that the witness is material, that the witness refused or willfully neglect*42ed to appear at the time and place specified on the subpoena, and that no valid excuse reasonably appears for the witness’ failure to appear.” RCM 703(e)(2)(G)(ii).

In contrast to federal civilian judges, military judges do not have the power to treat non-compliance with a subpoena as a contempt of court. Compare Fed.R.Crim.P. 17(g) with Art. 47, UCMJ, 10 USC § 847. In a court-martial, if a civilian not subject to the UCMJ refuses to appear or testify after receiving a subpoena, the matter is referred to the appropriate U.S. Attorney for prosecution in the federal civilian courts. See Art. 47; RCM 809 (Discussion).

C. STANDARDS OF CONDUCT-IN GENERAL

This Court and the military departments have looked to the 1972 American Bar Association Code of Judicial Conduct (now the ABA Model Code of Judicial Conduct) and the ABA Standards for Criminal Justice (ABA Standards) for guidance on proper conduct in criminal trials. See, e.g., United States v. Wright, 52 MJ 136, 141 (1999); United States v. Hamilton, 41 MJ 32, 39 (CMA 1994); United States v. Loving, 41 MJ 213, 327 (1994), aff'd, 517 U.S. 748, 116 S.Ct. 1737, 135 L.Ed.2d 36 (1996). The Army has expressly adopted the ABA Code to the extent that it does not conflict with the UCMJ, Manual for Courts-Martial, or other rules governing courts-martial. Para. 5-8, AR 27-10, Military Justice (20 Aug 1999).1

Canon 3 of the ABA Model Code (2000 ed.) provides that “[a] judge shall perform the duties of judicial office impartially and diligently.” Two sections of Canon 3 are of particular relevance to this case: (1) Section B(4) requires a judge to “be patient, dignified and courteous to litigants, jurors, witnesses, lawyers, and others”; and (2) Section B(5) establishes that “[a] judge shall not ... by words or conduct manifest bias or prejudice.” The commentary on the latter section elaborates, as follows:

A judge must perform judicial duties impartially and fairly. A judge who manifests bias on any basis in a proceeding impairs the fairness of the proceeding and brings the judiciary into disrepute. Facial expression and body language, in addition to oral communication, can give to parties or lawyers in the proceeding, jurors, the media and others an appearance of judicial bias. A judge must be alert to avoid behavior that may be perceived as prejudicial.

The ABA Standards, which have similar provisions,2 require judges to exercise self-restraint:

The trial judge should be the exemplar of dignity and impartiality. The judge should exercise restraint over his or her conduct and utterances. The judge should suppress personal predilections, and control his or her temper and emotions. The judge should not permit any person in the courtroom to embroil him or her in conflict, and should otherwise avoid personal conduct which tends to demean the proceedings or to undermine judicial authority in the courtroom. When it becomes necessary during the trial for the judge to comment upon the conduct of witnesses, spectators, counsel, or others, the judge should do so in a firm, dignified, and restrained manner, avoiding repartee, limiting comments and rulings to what is reasonably required for the orderly progress of the trial, and refraining from unnecessary disparagement of persons or issues.

Standard 6-3.4, Special Functions of the Trial Judge (2d ed.1980).

Such standards generally are regarded as principles to which judges should aspire and are enforced primarily through disciplinary action and advisory opinions, rather than *43through disqualification in particular cases. See Richard E. Flamm, Judicial Disqualification § 2.6.3 at 45 (1996). In many jurisdictions, particularly in the federal courts, actions that violate codes of conduct do not necessarily provide a basis either for disqualification of a judge or reversal of a judgment unless otherwise required by applicable law. Id.

D. IMPARTIALITY

“An accused has a constitutional right to an impartial judge.” Wright, supra, 52 MJ at 140, citing Ward v. Village of Monroeville, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972); Turney v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927). The impartiality of a presiding judge is crucial, for “ ‘[t]he influence of the trial judge on the jury is necessarily and properly of great weight,’ ... and jurors are ever watchful of the words that fall from him. Particularly in a criminal trial, the judge’s last word is apt to be the decisive word.” United States v. Shackelford, 2 MJ 17,19 (CMA 1976) (quoting United States v. Clower, 23 USCMA 15, 18, 48 CMR 307, 310 (1974)(internal citations omitted)).

The Manual also emphasizes the importance of an impartial judiciary, advising military judges that when carrying out their duties in a court-martial, they “must avoid undue interference with the parties’ presentations or the appearance of partiality.” RCM 801(a)(3) (Discussion).3 The military judge must exert his authority with care, so as not to give even the appearance of bias for or against either party. Id. The military judge is also charged with ensuring that the “dignity and decorum of the proceedings are maintained,” as “[cjourts-martial should be conducted in an atmosphere which is conducive to calm and detached deliberation and determination of the issues presented.’’ RCM 801(a)(2) and Discussion. The Manual reflects Canon 3A(3) of the Code of Conduct for United States Judges (1999), which provides that “[a] judge should be patient, dignified, respectful, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity....”

The paramount importance of impartiality does not mean that the military judge should act as “simply an umpire in a contest between the Government and accused.” United States v. Kimble, 23 USCMA 251, 254, 49 CMR 384, 386 (1974). The judge’s role is complex, for exercising evenhanded control of the proceedings without veering, or appearing to veer, too far to one side or the other has been characterized by this Court as walking a “tightrope.” Shackelford, 2 MJ at 19.

A number of eases have suggested that disqualification applies to actions that are extra-judicial, or personal, and not judicial in nature. See Liteky v. United States, 510 U.S. 540, 549, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994); In re Corrugated Container Antitrust Litigation, 614 F.2d 958, 964 (5th Cir.1980); In re Boston’s Children First, 244 F.3d 164, 168 (1st Cir.2001). This view is reflected in the Drafters’ Analysis of RCM 902(b), Manual, supra at A21-50. The case law, however, does not clearly distinguish between matters that are “extra-judicial” or “personal” and matters that are “judicial.” Actions taken in the course of a trial may warrant disqualification where “it can be shown that such bias was either directed against a party or its counsel, or in favor of the adverse party or counsel, or that the challenged judge, in order to compensate for the appearance of such a bias, has bent over backwards to make it seem as though he has *44jnot acted as a result of such bias.” Flamm, supra, § 4.3 at 113-14 (footnotes omitted).

There is a strong presumption that a judge is impartial, and a party seeking to demonstrate bias must overcome a high hurdle, particularly when the alleged bias involves actions taken in conjunction with judicial proceedings. See id., § 4.6.4 at 136-37 (suggesting that only extraordinary circumstances involving pervasive bias warrant disqualification when the alleged bias is based upon judicial actions). The Supreme Court, in a case involving the extra-judicial source doctrine and the appearance of bias, has noted that remarks, comments, or rulings of a judge do not constitute bias or partiality, “unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.” Liteky, 510 U.S. at 555, 114 S.Ct. 1147.

E. EX PAUTE COMMUNICATIONS

The Code of Conduct for United States Judges contains a number of rules to ensure that judges steer clear of circumstances that would demonstrate bias or the appearance of bias. One such rule is Canon 3A(4), which provides that “[a] judge should accord to every person who is legally interested in a proceeding, or the person’s lawyer, full right to be heard according to law, and, except as authorized by law, neither initiate nor consider ex parte communications on the merits, or procedures affecting the merits, of a pending or impending proceeding.” The limitation generally applies to “oral discussions about a pending or impending proceeding between a judge and another [person] that not all of the attorneys of record in that proceeding are present to hear, or written communications about such a proceeding that less than all the attorneys of record have contemporaneously received copies of.” Flamm, supra, § 14.1 at 406 (footnotes omitted).

Under circumstances not pertinent to the present appeal, certain ex parte communications are permissible. Id., § 14.3.1 at 410. Moreover, in light of the potential for incidental communications that involve noncontroversial matters such as routine scheduling discussions, the fact of an ex parte communication does not mandate disqualification. Id.; see also United States v. Alis, 47 MJ 817, 824 (A.F.Ct.Crim.App.1998) (citing United States v. Chavira, 25 MJ 705 (ACMR 1987)(“When circumstances require, ex parte communications for scheduling or administrative purposes that do not deal with substantive issues are authorized provided no party gains a tactical advantage as a result ... and the judge makes provision promptly to notify all other parties of the substance of the communication.”)). A decision on disqualification will “depend on the nature of the communication; the circumstances under which it was made; what the judge did as a result of the ex parte communication; whether it adversely affected a party who has standing to complain; whether the complaining party may have consented to the communication being made ex parte, and, if so, whether the judge solicited such consent; whether the party who claims to have been adversely affected by the ex parte communication objected in a timely manner; and whether the party seeking disqualification properly preserved its objection.” Flamm, supra, § 14.3.1 at 411-12 (footnotes omitted).

F. DISQUALIFICATION UNDER THE UCMJ AND THE MANUAL FOR COURTS-MARTIAL

The Uniform Code of Military Justice provides that “[n]o person is eligible to act as military judge in a case if he is the accuser or a witness for the prosecution or has acted as investigating officer or a counsel in the same case.” Art. 26(d). The President has promulgated additional disqualification standards in RCM 902, which parallel the statute governing disqualification of federal civilian judges, 28 USC § 455. See Art. 36(a), UCMJ, 10 USC § 836(a) (presidential rule-making authority); Drafters’ Analysis of RCM 902, Manual, supra at A21-50. Our Court considers the standards developed in the federal civilian courts, as well as our own case law, when addressing disqualification issues arising under RCM 902. See, e.g., Wright, 52 MJ at 140-41.

RCM 902 divides the grounds for disqualification into two categories — specific circum*45stances connoting actual bias and the appearance of bias. RCM 902(b) lists five specific circumstances requiring disqualification, including two that are pertinent to the present appeal.

RCM 902(b)(1), which provides for disqualification “[w]here the military judge has a personal bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts,” applies the same substantive standard as its civilian counterpart, 28 USC § 455(b)(1). RCM 902(b)(3) provides for disqualification “[wjhere the military judge has been or will be a witness in the same case.” See Art. 26(d). The Drafters’ Analysis notes that “[t]he purpose of this section is analogous to that of 28 USC § 455(b)(3).” Manual, supra at A21-51.

RCM 902(a), which addresses the appearance of bias, requires disqualification of a judge when “that military judge’s impartiality might reasonably be questioned.” This is the same standard as applied under the federal civilian statute, 28 USC § 455(a).

Under subsection (a), disqualification is required “in any proceeding in which [the] military judge’s impartiality might reasonably be questioned,” even though the evidence does not establish actual bias. The appearance standard is designed to enhance public confidence in the integrity of the judicial system. Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 860, 108 S.Ct. 2194,100 L.Ed.2d 855 (1988). The rule also serves to reassure the parties as to the fairness of the proceedings, because the line between bias in appearance and in reality may be so thin as to be indiscernible. Flamm, supra, § 5.4.2 at 151; see also Liteky, 510 U.S. at 565,114 S.Ct. 1147 (Kennedy, J., concurring in the judgment)(“In matters of ethics, appearance and reality often converge as one.”).

In short, RCM 902, like 28 USC § 455, requires consideration of disqualification under a two-step analysis. The first step asks whether disqualification is required under the specific circumstances listed in RCM 902(b). If the answer to that question is no, the second step asks whether the circumstances nonetheless warrant disqualification based upon a reasonable appearance of bias.

G. PROCEDURE

As a matter of procedure, counsel may move for the disqualification of a military judge, but military judges also have a continuing duty to recuse themselves if any of the bases of disqualification under RCM 902 develop. RCM 902(d)(1). Both parties are permitted to question the military judge and to present evidence concerning the possible ground for disqualification prior to the judge’s decision. RCM 902(d)(2). Of all the grounds for disqualification in RCM 902, only the appearance of bias may be waived, RCM 902(a), after full disclosure of the basis on the record. RCM 902(e).

In federal civilian courts, parties may raise the recusal issue by motion, but the judge also has a sua sponte duty to determine whether he or she should continue to preside over a proceeding. Davis v. Board of School Commissioners of Mobile County, 517 F.2d 1044, 1051 (5th Cir.1975)(28 USC § 455 is self-enforcing on the part of the judge; it may be asserted by party by motion in trial court, through assignment of error on appeal, by interlocutory appeal, or by mandamus). Some circuits have expressed the opinion that, after disclosing information that might form a basis for disqualification under § 455(a), the judge should make his own determination on the issue without asking counsel to express their views on the judge’s ability to sit. See United States v. Kelly, 888 F.2d 732, 746-47 (11th Cir.1989)(holding, in accord with other circuits, that a federal judge should make his own decision on disqualification because “[t]he too frequent practice of advising counsel of a possible conflict, and asking counsel to indicate their approval of a judge’s remaining in a particular case is fraught with potential coercive elements which make this practice undesirable.”).

Although the federal statute does not detail the procedure for obtaining a waiver of disqualification from the parties, early and full disclosure by the judge in circumstances free from any subtle coercion generally is *46considered to be an essential predicate to acceptance of waiver. See United States v. Nobel, 696 F.2d 231, 236-37 (3rd Cir.1982). A procedure for obtaining waiver is set forth in Canon 3D of the Code of Conduct for United States Judges, which provides:

A judge disqualified by the terms of Canon 3C(1), except in the circumstances specifically set out in subsections (a) through (e), may, instead of withdrawing from the proceeding, disclose on the record the basis of his disqualification. If the parties and their lawyers after such disclosure and an opportunity to confer outside of the presence of the judge, all agree in writing or on the record that the judge should not be disqualified, and the judge is then willing to participate, the judge may participate in the proceeding. The agreement shall be incorporated in the record of the proceeding.

The Compendium of Selected Opinions to the Code of Conduct for United States Judges provides a further gloss on obtaining waiver of disqualification for an appearance of impropriety:

The decision as to whether there is or is not a reasonable appearance of impropriety is a decision to be made by the judge; counsel or parties should not be consulted on that issue. If the judge determines that there is a reasonable appearance of impropriety, the judge must either recuse, or invoke the Canon 3D procedure in full.

§ 3.8-2[l](c). Although the procedure in Canon 3D is not required under 28 USC § 455(e), courts have cited the Canon with approval. See Nobel, supra.

III. BACKGROUND

This section provides a detailed account of the events at the time of trial and during appellate review to reflect the evolution of the disqualification issue in this case. Because the military judge did not make a comprehensive disclosure of the pertinent events, the following not only sets forth information from the record of trial, but also the differing recollections of the participants as contained in material developed after the trial.

A. THE RECORD OF TRIAL

1. THE CHARGED OFFENSES

a. Charges of Sexual Impropriety With Three Civilian Teenagers

Appellant was charged with offenses arising from sexual contact with five individuals: two military members and three civilian teenagers. The charges involving the civilian teenagers provide the context for the unusual events that transpired during the lengthy trial, post-trial, and appellate proceedings in this case.

Appellant was divorced and lived off-post with his teenage son. During the two-year period covering the charged offenses, several other soldiers and civilians lived in the house at various times, including JB, a 19-year-old high school student. Subsequently, JB moved out of appellant’s home and lived with his employer, Mr. Bernstein, who owned a chain of pizza parlors. JB informed Mr. Bernstein that appellant had forcibly performed oral sodomy on him while the two were sitting in appellant’s parked ear.

Mr. Bernstein also employed CS, who was a friend of JB. During an employment interview, CS told Mr. Bernstein that appellant had indecently assaulted him after getting him drunk. When Mr. Bernstein subsequently learned that RW, JB’s 15-year-old half-brother, had spent time with appellant, he became suspicious that appellant might have molested RW as well. Mr. Bernstein informed RW’s father, Master Sergeant (MSG) W/> who questioned his son. RW told MSG W that appellant had sexually molested him at appellant’s house. Mr. Bernstein did not speak directly to RW about these allegations. The allegations regarding all three civilian teenagers were brought to the attention of military authorities by Mr. Bernstein.

b. The Charges Involving Military Personnel

The remaining charges involved sexual contact with two members of the armed forces at various times during 1993 through 1995. Private (PVT) B, a new member of appellant’s battalion, arrived when most of *47the unit was deployed. At appellant’s suggestion, PVT B joined appellant off-post for a game of pool, and then went to appellant’s house. PVT B accepted appellant’s invitation to spend the night at appellant’s house. PVT B testified that shortly after retiring for the evening, appellant touched PVT B’s genitals. PVT B then departed and obtained a ride back to Fort Hood, where he reported the incident to the staff duty noncommissioned officer (NCO).

The other offenses involved CJ, who was on active duty at the time of the incidents but had left military service at the time of trial. CJ’s testimony covered two separate incidents of sexual contact, one in the barracks and one at a party in appellant’s home. CJ testified that he consumed a large quantity of beer, fell asleep on the bedroom, floor, and woke up to find appellant touching his genital area.

Neither of the victims had any contact with Mr. Bernstein prior to trial. Appellant was convicted of the charge involving PVT B. He was also convicted of one of the specifications involving CJ and acquitted of the other.

2. OVERVIEW

At trial, the defense strategy focused primarily on Mr. Bernstein’s role, suggesting that the reports of abuse were not credible and that he had manipulated the teenagers into making false charges. The trial was marked by conflicts between Mr. Bernstein and the military judge, including two out-of-court confi*ontations. The out-of-court confrontations between the military judge and Mr. Bernstein not only affected procedural aspects of the trial, but also became the focus of evidence introduced for consideration by the members during trial on the merits.

3. PROCEEDINGS PRIOR TO THE CONFRONTATIONS '

Appellant was arraigned on May 7, 1996, and pretrial motions and related proceedings were considered on August 10 and 19. A variety of circumstances delayed commencement of trial on the merits, including a lengthy, defense-requested continuance to accommodate the schedules of both civilian and military defense counsel.

After additional pretrial matters were considered on the morning of August 20, trial on the merits began with opening statements. During the opening statements, the prosecution summarized expected testimony on each charge and indicated that expert testimony would be offered to explain delayed reporting in terms of the reluctance of young victims to report sexual abuse. The defense counsel’s opening statement focused on potential inconsistencies in the anticipated testimony of prosecution witnesses, implying that at least some’ of the witnesses were manipulated by Mr. Bernstein, who was described by defense counsel as “the key to the whole thing.”

After the opening statements and prior to commencement of the prosecution’s case on the merits, the military judge conducted a routine session under Article 39(a), UCMJ, 10 USC § 839(a), regarding expert witnesses. During the course of that discussion, he expressed concern that trial counsel had not given the bailiff a list of prosecution witnesses showing the order in which they would appear. He admonished the trial counsel to have his witnesses organized so that the court-martial would “not have to wait 10 minutes between witnesses.”

When the court reconvened early in the afternoon on August 20, the prosecution called its first witness — CS — one of the civilians named as a victim in the charges. Defense counsel immediately requested a brief delay for purposes of interviewing the witness. After determining that the defense previously had the opportunity to interview the witness at the pretrial investigation under Article 32, UCMJ, 10 USC § 832, the military judge expressed concern about further delay, noting that “witnesses in cases like this do tend to be a little reluctant, a little frail; and we had them waiting all morning.” Defense counsel withdrew his request for a delay, and the prosecution began its examination of CS.

CS testified that appellant encountered him at school and offered him a ride home. He added that instead of going to CS’s home, they went to appellant’s house, where appellant served him beer, showed pornographic movies, and initiated sexual activity without *48OS’s consent. CS further testified that he did not tell his parents or friends about this because he was embarrassed.

He stated that he eventually told his employer, Mr. Bernstein, what had transpired after learning that JB, a fellow employee, “had been attacked” by appellant. In his cross-examination, defense counsel explored inconsistencies between the testimony presented in court and at the Article 32 hearing, and focused on Mr. Bernstein’s role in bringing the allegations to the attention of CS’s father and the prosecution.

4. THE DELAY IN BRINGING JB TO THE WITNESS STAND

After CS completed his testimony, the prosecution called its second witness, JB— another of the teenage civilians named in the charges as a victim. The record of trial contains a cryptic description about what then transpired.

Initially, the record indicates some difficulty with respect to the witness:

TC: We call J* B*.

[Specialist Bennett, legal specialist, withdrew from the courtroom, and reentered shortly thereafter and conferred with the trial counsel.] 4

MJ: Tell Mr. B* to come in; tell him I said so.

[Specialist Cooks, legal specialist, withdrew from the courtroom. Captain Henry, seated in the spectator section withdrew from the courtroom.]5 [Time lapse.]

MJ: Okay. I’ve got a premonition. Gentlemen, please go into the deliberation room. We’ll be getting to you shortly.

TC: Sir — sir, if I may. If we get him, I’d like to hear him testify.

MJ: I understand that. Would you go get him please?

TC: Yes, sir.

MJ: Thank you.

[Captain Schwind6 withdrew from the courtroom.]

[Time lapse.]

The military judge called a brief recess at 2:28 p.m. Four minutes later, he convened an Article 39(a) session and indicated that the difficulty in obtaining JB’s appearance was related to Mr. Bernstein.

MJ: This Article 39(a) session is called to order. All are present as before. The members are absent. Captain Schwind is absent.

Mr. Bernstein, who I have met, is highly upset. He believes he was treated in an improper way. I could not have a conversation with Mr. Bernstein because I had this premonition that I would revisit everything I was about to say. I invited Mr. Bernstein in. I believe I called for the MP’s to come here, is that correct?

CPT Henry: [From spectator section.] Yes, sir. They’re on their way.

MJ: Very well. Okay.

Now, I want you Captain Christensen,7 to kick out — Captain Schwind, sit down with Mr. Bernstein, tell him we’re going to have a trial; tell him if he leaves that I may dismiss the charges and all this work is for naught.

[Captain Schwind reentered the courtroom.]

MJ: Was Mr. Bernstein going to come in?

TC: Sir, he’s attempting to call Colonel Naccarato.8

MJ: Everybody stay here.

[Stepped down from the judge’s bench.] Cooks, you’re my witness. Put your ears on.

[The military judge and Specialist Cooks withdrew from the courtroom.]

Following this announcement, a second brief recess began at 2:33 p.m. Four minutes later, the Article 39(a) session was reconvened, and the military judge vaguely re*49ferred to the difficulties encountered in procuring JB’s appearance:

[The military judge and Specialist Cooks reentered the courtroom.]

MJ: Come on in, Mr. — what’s his name?

TC: [JB]

MJ: [JB] ..., come on in and have a seat.

[The witness entered the courtroom and took the witness stand.]

MJ: Let the record reflect that I went out with — are we on the record? Article 89(a) called to order. All are present as before. The members are absent. Mr. [JB] is on the witness stand.

Specialist Cooks—

[Assistant trial counsel stood.]

Talk to me.

ATC: I just wanted to let you know, sir, Captain Sehwind is present now.

MJ: Okay. Well, we can’t have everything. Okay. Specialist Cooks and I went out to talk to Mr. Bernstein. Mr. Bernstein is apparently a good friend of____ [JB]. He is very protective of ... [JB].

.... Mr. Bernstein is eager to avoid problems. He believes that — and what sent him off, so the record is straight: Apparently, he believes that a captain, who he believes his first word begins with an “F” and ends with a “G” had spoken inappropriately to him — and I think he’s referring to you, Captain Brown9 — and Mr. Bernstein is all upset.

DC: What?

CDC: Sir, for the record, he’s talking — he was in here, sir.

CPT Henry: [From the spectator section.] He’s talking about me, sir.