United States v. Scott , 2008 CAAF LEXIS 227 ( 2008 )

UNITED STATES, Appellee
v.
Manuela Del Carmen SCOTT, Senior Airman
U.S. Air Force, Appellant
No. 07-0597
Crim. App. No. 36514
United States Court of Appeals for the Armed Forces
Argued December 10, 2007
Decided February 13, 2008
RYAN, J., delivered the opinion of the Court, in which EFFRON,
C.J., and BAKER, ERDMANN, and STUCKY, JJ., joined.
Counsel
For Appellant: Captain Anthony D. Ortiz (argued); Lieutenant
Colonel Mark R. Strickland (on brief).
For Appellee: Captain Nicole Wishart (argued); Colonel Gerald
R. Bruce, Colonel George F. May, and Major Matthew S. Ward (on
brief).
Military Judge: William A. Kurlander
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Scott, 07-0597/AF
Judge RYAN delivered the opinion of the Court.
Appellant was convicted at a general court-martial,
pursuant to her pleas, of one specification of conspiracy and
one specification of wrongful possession of cocaine with intent
to distribute, in violation of Articles 81 and 112a, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. §§ 881, 912a (2000).
Contrary to her pleas, a panel of officers convicted Appellant
of one specification of using her employment to gain access to
Air Force records that contained individually identifiable
information, which Appellant willfully disclosed and offered for
sale, in violation of Article 134, UCMJ, 10 U.S.C. § 934 (2000).
The panel sentenced Appellant to a dishonorable discharge,
confinement for five years, forfeiture of all pay and
allowances, a fine of $4,000.00, and reduction to E-1. The
convening authority approved the adjudged sentence. The Air
Force Court of Criminal Appeals (CCA) affirmed the findings, but
found Appellant’s sentence inappropriately severe, reassessed
it, and reduced confinement to four years. United States v. Del
Carmen Scott, No. ACM 36514, 2007 CCA LEXIS 131, at *4, 2007 WL
1052498, at *2 (A.F. Ct. Crim. App. March 28, 2007)
(unpublished).
We granted Appellant’s petition on the following issue:
WHETHER THE ADDENDUM TO THE STAFF JUDGE ADVOCATE’S
RECOMMENDATION CONTAINS “NEW MATTER” NOT PROVIDED TO
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DEFENSE COUNSEL FOR COMMENT, NECESSITATING A NEW
CONVENING AUTHORITY ACTION IN THIS CASE.1
I. Factual Background
Appellant was a participant in what she thought was a
cocaine trafficking ring. It was actually an undercover sting
operation conducted by the Federal Bureau of Investigation
involving several servicemembers.
After Appellant was convicted, the acting staff judge
advocate prepared a post-trial recommendation (SJAR) for the
convening authority, which was properly served on defense
counsel. In response, trial defense counsel submitted a
clemency request to the convening authority on behalf of
Appellant. The clemency request asserted, among other things,
that many of the officer members likely knew that Appellant was
the first Airman to be tried for offenses related to the sting
operation. It further asserted that the members may have given
an overly harsh sentence to Appellant “so as not to set a
precedent of lenience knowing other cases would follow.”
By this time, the acting staff judge advocate had been
replaced by a new staff judge advocate (SJA). The SJA
supplemented the recommendation to the Convening Authority in an
Addendum to the SJAR (Addendum), which addressed Appellant’s
1
65 M.J. 321 (C.A.A.F. 2007).
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United States v. Scott, 07-0597/AF
request for clemency. The Addendum addressed the
appropriateness of Appellant’s sentence as follows:
3. c. The Defense’s “purpose of sentencing” position
largely questions the utility of the length of confinement
as it pertains to the rehabilitation of SrA Scott. SrA
Scott did present a lot of character letters attesting to
her great rehabilitative potential. However, the facts of
this case fully support the adjudged sentence. SrA Scott
was found guilty of conspiring to and wrongful possession
of cocaine with the intent to distribute, which carried a
maximum sentence of confinement for 30 years. The sentence
was adjudged by a panel of officer members who, after
having the benefit of personally hearing all of the
evidence in her case, determined that 5 years of
confinement was appropriate given the circumstances.
4. Undoubtedly this is a very unfortunate case for SrA
Scott, her family, friends, and the Air Force. The
clemency request highlights an Airman that had great
promise in the Air Force. In the end, the members
themselves had an opportunity to hear all of the evidence
presented in this case. In fact, prior to reaching its
sentence, SrA Scott personally spoke to the panel. After
hearing all the evidence, the panel sentenced her to 5
years of confinement, a dishonorable discharge, reduction
to E-1, total forfeitures, and $4,000 fine. Based upon the
severity of her crimes and the above comments, I recommend
that you approve the findings and the sentence as adjudged.
(emphasis added).
The SJA did not serve the Addendum on Appellant or her
counsel. The SJA submitted the Addendum, along with the
original SJAR and Appellant’s clemency submission, to the
convening authority. The convening authority did not grant
Appellant clemency.
At the CCA, Appellant asserted that the above excerpted
statements in the Addendum were “new matter” that should have
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been served on the defense as required by Rule for Courts-
Martial (R.C.M.) 1106(f)(7). The Court of Criminal Appeals
rejected Appellant’s argument and held that the Addendum did not
contain new matter. 2007 CCA LEXIS 131, at *4, 2007 WL 1052498,
at *1. We agree.
II. Discussion
Whether matters contained in an addendum to the SJAR
constitute “new matter” that must be served upon an accused is a
question of law that is reviewed de novo. United States v.
Chatman, 46 M.J. 321, 323 (C.A.A.F. 1997).
The initial SJAR must be served upon trial defense counsel
and the defendant. R.C.M. 1106(f)(1). Defense counsel may then
submit comments on the SJAR. R.C.M. 1106(f)(4). In turn, the
SJA has the opportunity to supplement the SJAR in the form of an
addendum SJAR. R.C.M. 1106(f)(7). If the addendum contains
“new matter” it must be served on “the accused and counsel for
the accused.”2 Id.“New matter” is not defined in the Manual for Courts-
Martial. And this Court has not provided a comprehensive
definition of “new matter.” United States v. Frederickson, 63
M.J. 55, 56 (C.A.A.F. 2006) (citing United States v. Catalani,
2
Nothing precludes this supplement from being served on accused
and counsel, even when it does not contain new matter. Such
transparency may preclude appeals such as the one in this case.
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United States v. Scott, 07-0597/AF
46 M.J. 325, 326 (C.A.A.F. 1997)). But we are not without
guidance. The Discussion to R.C.M. 1106(f)(7) provides that:
“New matter” includes discussion of the effect of new
decisions on issues in the case, matter from outside
the record of trial, and issues not previously
discussed. “New matter” does not ordinarily include
any discussion by the staff judge advocate or legal
officer of the correctness of the initial defense
comments on the recommendation.
While recognizing that the Discussion is non-binding, this
Court has nonetheless cited with approval its illustrations of
what is and is not a new matter. See United States v. Buller,
46 M.J. 467, 468 (C.A.A.F. 1997) (citing cases). Appellant’s
case falls within the latter category.
Appellant complains that the Addendum contained new matter
insofar as it stated that the members had the benefit of
personally hearing the evidence and determined that the sentence
was appropriate. We disagree. It was not news, and thus not
new matter, to note that the members had determined that five
years of confinement was appropriate after hearing all of the
evidence in the case.
The specific points raised in the Addendum that Appellant
complains of were not comments on “the effect of new decisions
on issues in the case, matter from outside the record of trial,
[or] issues not previously discussed.” Buller, 46 M.J. at 468
(quoting R.C.M. 1106(f)(7) Discussion). Nor were the statements
in question news to the convening authority, who presumptively
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knew that members heard the case, as he referred the case and
detailed members to it via his convening order. See United
States v. Key, 57 M.J. 246, 248 (C.A.A.F. 2002) (reasoning that
a “statement of the obvious” does not constitute new matter).
Appellant nonetheless argues that the Addendum contained
“new matter” because it invited the convening authority to defer
to the members because they had already heard the evidence in
Appellant’s case and were not persuaded that a lower sentence
was appropriate. We reject this interpretation of the facts.
Being told that members arrived at the sentence after hearing
all the evidence hardly invites the convening authority to shirk
his duty to take action pursuant to R.C.M. 1107.
Appellant’s reliance on Catalani, 46 M.J. at 326, and
United States v. Gilbreath, 57 M.J. 57, 61 (C.A.A.F. 2002), for
the proposition that “new matter” sweeps so broadly as to
include this case, is misplaced. The convening authority is
presumed to know the difference between clemency materials and
evidence adduced at trial. See United States v. Wise, 6 C.M.A.
472, 478, 20 C.M.R. 188, 194 (1955) (applying a “presumption of
regularity” to the convening authority’s actions). In Catalani,
this Court found that the SJAR addendum contained “new matter”
both because the SJA erroneously stated that “[a]ll of the
matters submitted for your consideration in extenuation and
mitigation were offered by the defense at trial[,]” when in fact
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most of the clemency materials were developed after the trial,
and because the addendum to the SJAR improperly tried to bolster
the SJA recommendation by alluding to the fact that the case had
been heard by the “seniormost [sic] military judge in the
Pacific.” 46 M.J. at 327-28. There is no such factual error or
bolstering in the Addendum in this case.
The present case is similarly distinguishable from
Gilbreath. The SJAR Addendum at issue in Gilbreath was founded
on a fallacy –- that the accused was sentenced by members. In
fact, the accused was sentenced by the military judge.
Gilbreath, 57 M.J. at 61. The error in the SJAR addendum was
dispositive of the R.C.M. 1106(f)(7) issue in that case. Here,
unlike in Gilbreath, there is not an incorrect characterization
of who conducted sentencing.
Of course, Gilbreath also stated that the “logical import”
of the SJAR addendum’s statement that “after hearing all
matters, the jury determined a bad conduct discharge was
appropriate” was that the fictional members had already
considered the clemency materials that were before the convening
authority. Gilbreath, 57 M.J. at 61 (emphasis removed).
Understandably, Appellant relies on this language and other
dicta in Gilbreath regarding whether the SJAR addendum in that
case might have been “construed as suggesting that the convening
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United States v. Scott, 07-0597/AF
authority not provide [an] independent and fresh look” at the
clemency materials because the members had reviewed them. Id.
But that language was unnecessary to the holding in that case --
there were no members -– and does not control the outcome in
this case. See Gilbreath, 57 M.J. at 62 (Baker, J., concurring
in the result) (noting that the case turned only on whether
“‘appellant should have had an opportunity to . . . respond to
and correct the misleading information’”) (quoting Catalani, 46
M.J. at 330); see also Alexander v. Baltimore Ins. Co., 8 U.S.
370, 379 (1808) (cautioning against relying on statements not
central to the holding of a case).
It bears repeating, Gilbreath was decided based on the
addendum SJAR’s incorrect assertion. See Gilbreath, 57 M.J. at
61 (noting “there was no ‘jury’”). Here, where the issue is
squarely presented for decision, we clarify that an addendum
accurately referencing the fact that the court-martial heard
evidence before imposing a sentence, without more, does not
constitute new matter.3
The SJA’s Addendum stated nothing new and the information
contained therein was not “erroneous, inadequate, or
3
While we do not disagree that an addendum that actually invited
the convening authority to abdicate his duties because the trier
of fact had reviewed all clemency materials, whether true or
not, would be new matter within the meaning of R.C.M.
1106(f)(7), see Catalani, 46 M.J. at 328, the language at issue
in this case falls short of that mark.
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misleading.” Buller, 46 M.J. at 468 (quotation marks omitted).
Instead, it merely stated an obvious fact in the course of
advising the convening authority on the “correctness of the
initial defense comments on the recommendation.” R.C.M.
1106(f)(7) Discussion. We decline to extend R.C.M. 1106(f)(7)
to encompass such statements.
III. Decision
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
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