U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM S32460
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UNITED STATES
Appellee
v.
Harley K. PINHO-TAMBURI
Airman First Class (E-3), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Decided 5 September 2017
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Military Judge: Natalie D. Richardson.
Approved sentence: Bad-conduct discharge, confinement for 60 days,
hard labor without confinement for 90 days, and reduction to E-1. Sen-
tence adjudged 2 February 2017 by SpCM convened at Travis Air Force
Base, California.
For Appellant: Major Annie W. Morgan, USAF.
Before MAYBERRY, JOHNSON, and MINK, Appellate Military Judges.
Judge MINK delivered the opinion of the court, in which Senior Judges
MAYBERRY and JOHNSON joined.
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This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 18.4.
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MINK, Judge:
A special court-martial composed of a military judge sitting alone found
Appellant guilty, consistent with his pleas and in accordance with a pretrial
agreement (PTA), of divers wrongful use and distribution of lysergic acid di-
ethylamide (LSD) in violation of Article 112a, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 912a.
United States v. Pinho-Tamburi, No. ACM S32460
This case was submitted to us on its merits with no assignments of error.
However, we address one issue not raised by the parties: error in the staff judge
advocate’s recommendation (SJAR) to the convening authority.
I. BACKGROUND
On or about 17 September 2016, while stationed at Travis Air Force Base
(AFB), California (CA), Appellant purchased ten hits of LSD. A few days later,
Appellant and Airman First Class (A1C) BF went to Muir Woods, CA. Appel-
lant gave two hits of LSD to A1C BF and both Appellant and A1C BF consumed
two hits each of LSD. About a week later, Appellant consumed one hit of LSD
in his dormitory room on Travis AFB.
Sometime in mid-October 2016, Senior Airman (SrA) JW went to Appel-
lant’s dormitory room after completing his duty shift. Appellant provided SrA
JW with one hit of LSD and Appellant and SrA JW consumed a single hit each
of LSD in Appellant’s dormitory room. Two days after using LSD with SrA JW,
Appellant consumed four hits of LSD by himself. Sometime in late October
2016, Appellant attended a party with SrA CW at a friend’s house in Vacaville,
CA. While at the party, Appellant provided SrA CW with one-half of a hit of
LSD and both Appellant and SrA CW each consumed one-half of a hit of LSD.
Approximately two days later, Appellant bought five more hits of LSD. On
11 November 2016, Appellant and SrA CW went to a concert in San Jose, CA.
Prior to entering the concert, Appellant consumed two hits of LSD and gave
SrA CW one hit of LSD. A few days later on 15 November 2016, Appellant and
SrA GR went to see a movie in Fairfield, CA. Prior to departing for the movie,
Appellant used one hit of LSD in the presence of SrA GR.
Appellant was charged with wrongfully using and distributing LSD on di-
vers occasions in violation of Article 112a, UCMJ. Appellant entered into a PTA
with the convening authority whereby Appellant agreed, inter alia, to plead
guilty as charged. In return, the convening authority agreed not to approve
confinement in excess of eight months.
The military judge found Appellant guilty, in accordance with his pleas, of
wrongfully using and distributing LSD on divers occasions. For these offenses,
the military judge sentenced Appellant to a bad-conduct discharge, confine-
ment for 60 days, hard labor without confinement for 90 days, and reduction
to the grade of E-1.
After the trial, the staff judge advocate (SJA) prepared a SJAR for the con-
vening authority which stated, inter alia, the maximum imposable sentence of
the offenses for which Appellant was convicted included a “[bad-conduct dis-
charge], confinement for 12 months, hard labor without confinement for 3
months, forfeiture of 2/3 pay per month for 12 months, reduction to the grade
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United States v. Pinho-Tamburi, No. ACM S32460
of E-1, a fine, and a reprimand.” (Emphasis added.) The SJA recommended the
convening authority approve the adjudged sentence. Appellant submitted
clemency matters for consideration by the convening authority in which he re-
quested reduction or disapproval of the 90 days of hard labor without confine-
ment. Appellant did not object to the SJAR’s statement regarding the maxi-
mum imposable sentence nor did Appellant allege any legal error in the SJAR.
The convening authority approved the sentence as adjudged.
II. DISCUSSION – SJAR ERROR
The proper completion of post-trial processing is a question of law this court
reviews de novo. United States v. LeBlanc,
74 M.J. 650, 660 (A.F. Ct. Crim.
App. 2015). If the Defense does not make a timely comment on an error in the
SJAR, the error is forfeited “unless it is prejudicial under a plain error analy-
sis.” United States v. Scalo,
60 M.J. 435, 436 (C.A.A.F. 2005) (citing Rule for
Courts-Martial (R.C.M.) 1106(f); United States v. Kho,
54 M.J. 63, 65 (C.A.A.F.
2000)). Under a plain error analysis, we assess whether: “(1) there was an er-
ror; (2) it was plain or obvious; and (3) the error materially prejudiced a sub-
stantial right.”
Id. (quoting Kho, 54 M.J. at 65). To meet the third prong of the
plain error test in the context of a post-trial SJAR error, we must find “some
colorable showing of possible prejudice.”
Id. at 436–37 (quoting
Kho, 54 M.J. at
65).
Because Appellant did not object to the SJAR, we test for plain error. Scalo,
60 M.J at 436. R.C.M. 1003(b)(6) provides in pertinent part:
Hard labor without confinement may be adjudged for no more
than 1-1/2 months for each month of authorized confinement and
in no case for more than three months. . . . Confinement and hard
labor without confinement may be adjudged in the same case,
but they may not together exceed the maximum authorized pe-
riod of confinement, calculating the equivalency at the rate spec-
ified in this subsection.
While confinement for up to 12 months and hard labor without confinement
for three months were both authorized punishments, these two punishments
could not—when aggregated and analyzed under equivalency standards—ex-
ceed the total authorized period of confinement, which in this case was 12
months. The SJAR’s failure to acknowledge this limitation was plain or obvious
error. See United States v. Kyc, No. ACM S32391, 2017 CCA LEXIS 376 (A.F.
Ct. Crim. App. 30 May 2017) (unpub. op.).
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United States v. Pinho-Tamburi, No. ACM S32460
Additionally, R.C.M. 1003(b)(3) provides in pertinent part:
Any court-martial may adjudge a fine in lieu of or in addition to
forfeitures. In the case of a member of the armed forces, sum-
mary and special courts-martial may not adjudge any fine or
combination of fine and forfeitures in excess of the total amount
of forfeitures that may be adjudged in that case.
The maximum forfeiture that a special court-martial may adjudge is two-
thirds of the accused’s pay per month for 12 months. R.C.M. 201(f)(2)(B)(i).
Thus, Appellant could not have been sentenced to a fine in addition to forfei-
ture of two-thirds pay per month for 12 months. The SJA’s advice that the
maximum punishment could include both forfeiture of two-thirds of Appel-
lant’s pay per month for 12 months as well as a fine was therefore also plainly
erroneous. See United States v. Books, No. ACM S32369, 2017 CCA LEXIS 226,
at *7 (A.F. Ct. Crim. App.
31 A.K. Marsh. 2017) (unpub. op.).
Despite these errors in the SJAR’s statement of the maximum imposable
sentence, we find no colorable showing of possible prejudice. The adjudged and
approved sentence including 60 days’ confinement and 90 days’ hard labor
without confinement was a legally permissible sentence. Further, the Govern-
ment did not seek a fine in this case, and neither a fine nor a forfeiture of pay
was adjudged. While Appellant requested a reduction or disapproval of the 90
days of hard labor without confinement in his clemency submission, Appellant
did not allege any error in the SJAR. Appellant also raised no assignments of
error before this court. We find no basis to conclude the erroneous inclusion of
the possibility of 12 months’ confinement and three months’ hard labor without
confinement, or the inclusion of the possibility of a fine in the recitation of the
maximum possible punishment in this case influenced the convening authority
to Appellant’s detriment. Given the sentence adjudged by the court-martial
and the convening authority’s agreement to approve no more than eight
months confinement under the terms of the PTA, we are confident that a cor-
rect statement of the maximum imposable punishment in the SJAR would not
have led to a more favorable recommendation by the SJA or clemency by the
convening authority. Therefore, no relief is warranted on this basis.
III. CONCLUSION
The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c).
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United States v. Pinho-Tamburi, No. ACM S32460
Accordingly, the findings and the sentence are AFFIRMED.
FOR THE COURT
KURT J. BRUBAKER
Clerk of the Court
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