United States v. Private E1 NICHOLAS A. SOLT ( 2016 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
MULLIGAN, FEBBO, and BURTON
Appellate Military Judges
UNITED STATES, Appellee
v.
Private E1 NICHOLAS A. SOLT
United States Army, Appellant
ARMY 20130029
Headquarters, 7th Infantry Division
Stefan A. Wolfe, Military Judge (trial)
Jeffrey Lippert, Military Judge (rehearing)
Major Christopher M. Ford, Acting Staff Judge Advocate (pretrial)
Major Jeri S. Hanes, Acting Staff Judge Advocate (post-trial)
Lieutenant Colonel James W. Nelson, Staff Judge Advocate (rehearing)
For Appellant: Lieutenant Colonel Jonathan F. Potter, JA; Captain Heather L.
Tregle, JA (on brief).
For Appellee: Colonel Mark H. Sydenham, JA; Major Daniel D. Derner, JA; Captain
Nathan S. Mammen, JA (on brief).
29 December 2016
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SUMMARY DISPOSITION ON FURTHER REVIEW
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MULLIGAN, Senior Judge:
A panel composed of officer and enlisted members sitting as a general court-
martial convicted appellant, contrary to his pleas, of conspiracy to steal military
property of a value of more than $500, failure to obey a lawful order, false official
statement, unauthorized sale of military property of a value of more than $500,
wrongful possession of a Schedule III controlled substance, larceny of military
property of a value of more than $500, and housebreaking in violation of Articles
81, 92, 107, 108, 112a, 121, and 130, Uniform Code of Military Justice [hereinafter
UCMJ], 10 U.S.C. §§ 881, 892, 907, 908, 912a, 921, 930 (2006). The panel
sentenced appellant to a dishonorable discharge, confinement for ten years,
forfeiture of all pay and allowances, and reduction to the grade of E-1. The
SOLT—ARMY 20130029
convening authority approved the adjudged sentence and credited appellant with 214
days against the sentence to confinement.
This court affirmed the findings of guilty but set aside the sentence because
the military judge abused his discretion when he allowed testimony regarding the
sentence of appellant’s co-conspirator to be presented to the panel. United States v.
Solt, ARMY 20130029, 2015 CCA LEXIS 229, *16 (Army Ct. Crim. App. 28 May
2015) (mem. op.). We authorized a sentence rehearing, but in so doing limited the
maximum punishment that could be approved by the convening authority to a
punitive discharge, confinement for nine years and four months, forfeiture of all pay
and allowances, and a reduction to the grade of E-1 in order to remedy a due process
violation occasioned by the government’s dilatory post-trial processing. Id. at *22.
On 23-24 November 2016, a panel of officer and enlisted members sitting as a
general court-martial sentenced appellant to a bad-conduct discharge, confinement
for seven years, and forfeiture of all pay and allowances. The convening authority
approved the sentence as adjudged.
In this Article 66, UCMJ, appeal, defense appellate counsel asserts the
military judge abused his discretion by admitting during the sentence rehearing
Discipline and Adjustment Board reports (D&A reports) accumulated by appellant
while serving his original sentence to confinement. 1 Finding no error, we affirm the
sentence.
BACKGROUND
At appellant’s sentence rehearing, the government introduced seven JRCF
Forms 4-4, Discipline and Adjustment Board Reports (D&A reports). The reports
reflected incidents of misconduct and the resulting sanctions imposed against
appellant while serving his original sentence to confinement at the Disciplinary
Barracks at Fort Leavenworth, Kansas. The government offered the reports pursuant
to Rule for Courts-Martial [hereinafter R.C.M.] 1001(b)(2) as “any records made or
maintained in accordance with departmental regulations that reflect the past military
efficiency, conduct, performance, and history of the accused.” Defense counsel
objected to the admission of the D&A reports under Military Rule of Evidence
[hereinafter Mil. R. Evid.] 403, generally, and on the basis that the reports were not
admissible as a personnel record under R.C.M. 1001(b)(2). Defense counsel also
made several particularized objections under Mil. R. Evid. 403 to references of prior
boards, appellant’s pleas, and, in some of the D&A reports, the notation of sexual
misconduct as the infraction under review.
1
Appellant personally asserts seven assignments of error pursuant to United States
v. Grostefon, 12 M.J. 431 (C.M.A. 1982), which, after due consideration, we find
lack merit.
2
SOLT—ARMY 20130029
The military judge admitted the D&A reports, reasoning that the documents
were maintained in appellant’s correctional treatment file (CTF) in accordance with
Army Reg. 190-47, Military Police: The Army Corrections System [hereinafter AR
190-47], paras. 10-5a and b (15 Jun. 2006), and therefore were, as a matter of law,
“personnel records of the accused” within the meaning of R.C.M. 1001(b)(2). The
admission of the records was subject to several redactions in each record to mask
information that might suggest appellant’s original sentence, such as the appellant’s
minimum release date from confinement, the number of prior Disciplinary and
Adjustment boards, some of the infractions noted on the D&A report, appellant’s
pleas to the infractions, and appellant’s good time credit. The military judge
ordered any reference to “sexual misconduct” deleted from the records. The military
judge left intact the dates of the incidents underlying the D&A reports, with the first
incident occurring on 28 March 2013 and the final incident occurring on 24 February
2015. In so doing, the military judge reasoned that while these dates showed
appellant was incarcerated for some period of time, they did not indicate the actual
sentence adjudged at the original trial. The military judge did not set forth his
rationale under Mil. R. Evid. 403 for admitting the D&A reports with these
redactions.
During sentencing argument, neither the defense nor the government
referenced or commented upon the D&A reports.
LAW AND DISCUSSION
We review a military judge’s decision to admit sentencing evidence for an
abuse of discretion. United States v. Manns, 54 M.J. 164, 166 (C.A.A.F. 2000). “A
military judge enjoys wide discretion in applying M.R.E. 403,” and “[o]rdinarily,
appellate courts exercise great restraint in reviewing a judge’s decisions under Rule
403.” Id. (citations and internal quotation marks omitted). “A military judge
receives less deference if he fails to articulate his balancing analysis on the record
and receives no deference is he fails to conduct the Mil. R. Evid. 403 balancing test
at all.” United States v. Ponce, 75 M.J. 630, 634 (Army Ct. Crim. App. 2016)
(citing Manns, 54 M.J. at 166).
As an initial matter, we agree with the military judge that D&A reports,
properly maintained, may be admissible under R.C.M. 1002(b)(2). That rule
provides for the admission during presentencing of personnel records “made or
maintained in accordance with departmental regulations that reflect the past military
efficiency, conduct, performance, and history of the accused.” AR 190-47 is such a
Department of the Army Regulation. Paragraph 10-5a,b sets forth the requirements
for establishing and maintaining a CTF for each inmate in the Army Corrections
System and the contents of this file, to include D&A reports. We also note Army
Regulation 27-10, Legal Services: Military Justice, para. 5-19a(11) lists as an
example of a personnel record admissible under R.C.M. 1001(b)(2) “[r]ecords
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relating to discipline and adjustment boards and other disciplinary records filed in
corrections files in accordance with AR 190-47.” We know of no case that addresses
the admission of D&A reports made and maintained under AR 190-47 that were
admitted under R.C.M. 1002(b)(2) over an objection by trial defense counsel. 2
That, of course, doesn’t end our inquiry. The military judge failed to
articulate his analysis under Mil. R. Evid. 403 before admitting the D&A reports
into evidence. Accordingly, we will afford his decision to admit these documents no
deference.
In our view, the reports, as redacted and admitted, were misleading, confusing
and did little to convey a true picture of appellant’s performance or conduct while
confined other than to show, perhaps, he committed some amorphous infractions.
Without more substance, these D&A reports injected the potential risk of undue
prejudice into the sentencing proceedings. We find, therefore, that the military
judge abused his discretion in admitting these reports.
Notwithstanding the military judge’s abuse of discretion, we hold that
appellant was not materially prejudiced by the admission of the D&A reports. In
examining prejudice, we must determine whether the admission of the documents
substantially influenced the adjudged sentence. United States v. Griggs, 61 M.J.
402, 410 (C.A.A.F. 2005). “In this evaluation, we ‘weigh factors on both sides.’”
United States v. Hayward, 73 M.J. 904, 908 (Army Ct. Crim. App. 2014) (quoting
United States v. Eslinger, 70 M.J. 193, 201 (C.A.A.F. 2011)).
On one side, the panel considered evidence that appellant engaged in various
sorts of infractions during a period while he was confined, and was in confinement
from at least his original trial until 24 February 2015.
On the other side, the government presented evidence showing the nature,
extent, and seriousness of appellant’s offenses for which he was being resentenced.
The members, so as not to know appellant’s original sentence, were instructed that
these offenses carried a significant maximum sentence to confinement of forty years
and six months. The members nonetheless adjudged a sentence of seven years
confinement, three years less than originally adjudicated. And finally, any impact of
the admission of the D&A reports was muted by the fact that neither trial nor
defense counsel referenced these exhibits during their sentencing arguments.
2
In United States v. Davis, our Superior Court was presented with the issue of the
admissibility of a Discipline and Adjustment Board Report as a “service record as a
prisoner” under R.C.M. 1001(b)(2). 44 M.J. 13, 18 (C.A.A.F. 1996). The court
declined to decide the issue and elected instead to apply a waiver analysis since trial
defense counsel did not object to the admission of the document under this rule. Id.
at 22.
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SOLT—ARMY 20130029
Considering the record as a whole, we are confident the panel was not
substantially influenced by the admission of the D&A reports in arriving at the
adjudged sentence in the case.
CONCLUSION
The findings of guilty and sentence are AFFIRMED.
Judge FEBBO and Judge BURTON concur.
FOR THE
FOR THE COURT:
COURT:
JOHN P. TAITT
JOHN Clerk
Acting P. TAITT
of Court
Acting Clerk of Court
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