United States v. Catalani , 1997 CAAF LEXIS 35 ( 1997 )

Opinion of the Court

EFFRON, Judge:

On December 13,1994, appellant was tried by a military judge sitting as a special court-martial. Appellant pleaded not guilty to a single specification of desertion but guilty to the lesser-included offense of absence without leave. Compare Art. 85 with Art. 86, Uniform Code of Military Justice, 10 USC § 885 and 886, respectively. Contrary to her pleas, she was found guilty of desertion, and the military judge sentenced her to a bad-conduct discharge, confinement for 5 months, forfeiture of $555.00 pay per month for 6 months, and reduction to the lowest enlisted grade. The convening authority reduced the period of forfeitures to 3 months but otherwise approved the sentence. The Court of Criminal Appeals affirmed in an unpublished opinion.

We granted review of the following issue: WHETHER THE ADDENDUM TO THE SJA[STAFF JUDGE ADVOCATEj’S RECOMMENDATION IS DEFECTIVE IN (1) FAILING TO DIRECT THE CONVENING AUTHORITY TO CONSIDER APPELLANT’S CLEMENCY MATTERS AND (2) INJECTING “NEW MATTER” NOT PROVIDED TO DEFENSE COUNSEL FOR COMMENT, NECESSITATING A NEW CONVENING AUTHORITY ACTION IN THIS CASE.

We agree that the SJA erred and that, under the circumstances of this ease, remedial action is necessary.

I

In every court-martial, the findings and sentence adjudged at trial are subject to review by the convening authority. Art. 60, UCMJ, 10 USC § 860 (1983). With respect to the sentence, the convening authority is required to take action by approving, disapproving, commuting, or suspending the sentence in whole or in part. Art. 60(c)(2).

Prior to taking action in any general court-martial or in a special court-martial involving a bad-conduct discharge, the convening authority must obtain and consider the SJA’s recommendation. Art. 60(d); RCM 1106(a), Manual for Courts-Martial, United States (1995 ed.). The SJA’s recommendation must be served on defense counsel and the accused, RCM 1106(f)(1), who may submit “corrections or rebuttal to any matter in the recommendation believed to be erroneous, inadequate, or misleading, and may comment on any other matter.” RCM 1106(f)(4). After defense counsel and the accused have had an opportunity to comment, the SJA may provide the convening authority with an addendum that supplements the SJA’s original recommendation. “When new matter is introduced” in the addendum, the accused and counsel must be served with the addendum, and they have 10 days in which to submit comments. RCM 1106(f)(7).

The provision in RCM 1106(f)(7) requiring that new matter be served on the defense is based on United States v. Narine, 14 MJ 55 (CMA 1982). Drafters’ Analysis of RCM 1106, Manual, supra at A21-81. The Rule does not define the term “new matter,” and this Court has not attempted a comprehensive definition. The non-binding Discussion that follows RCM 1106(f)(7) provides a number of illustrations of new matter, which this Court has cited with approval. See United States v. Chatman, 46 MJ 321, 323 (1997); United States v. Leal, 44 MJ 235, 236 (1996). Examples include “the effect of new decisions on issues in the case, matter from outside the record of trial, and issues not previously discussed.” RCM 1106(f)(7), Discussion. The Discussion also states that new matter “does not ordinarily include any discussion by the staff judge advocate ... of the correctness of the initial defense comments on the recommendation.”

We have held that if the SJA includes new matter in an addendum that is not provided to the accused, the accused is entitled to a new SJA recommendation and action by the convening authority unless the new matter is “neutral, neither derogatory nor adverse to appellant,” or if it is ‘“so trivial’ as to be nonprejudicial.” United States v. Jones, 44 MJ 242, 244 (1996). Otherwise, when the defense has been denied the opportunity to respond to new matter, we have ordered a new recommendation without making a determination that the convening authority would have granted further clemency. As we noted recently in Chatman, supra at 323:

In the past our position has been that, when an appellant has been “deprived of an opportunity to deny, counter, or explain” the new matter, “[w]e will not speculate on what the convening authority would have done if he had been presented with an accurate record.” Leal, 44 MJ at 237.

Accord Jones, supra at 244.

In Chatman, we addressed the question of the applicable appellate standard when the SJA fails to serve on the defense an addendum that contains new matter, to which the accused has the right to notice and an opportunity to respond. There, we held that, in the future, an appellant must

demonstrate prejudice by stating what, if anything, would have been submitted to “deny, counter, or explain” the new matter. We believe that the threshold should be low, and if an appellant makes some color-able showing of possible prejudice, we will give that appellant the benefit of the doubt and “we will not speculate on what the convening authority might have done” if defense counsel had been given an opportunity to comment. Jones, supra at 244; see United States v. DeGrocco, 23 MJ 146, 148 (CMA 1987).

46 MJ at 323-24 (citation omitted). However, because Chatman’s requirement to demonstrate a “colorable showing of possible prejudice” applies only to “cases in which a petition for review is filed after the date” of the Chatman opinion, it is not applicable to the case before us. Id. at 323.

II

In this case, the SJA’s initial post-trial recommendation, which advocated approval of the sentence in full if the convening authority found it to be “warranted” and “appropriate,” was provided to appellant and her defense counsel. In response, defense counsel submitted a Petition for Clemency, requesting the convening authority to “reduce the amount of ... [appellant’s] confinement as you see fit.” The clemency petition referenced several attached documents, including supporting letters from friends, family, and members of the Ah’ Force, and a statement from appellant. In the request for clemency, defense counsel cited the post-trial statements for the proposition that appellant “has been very successful in turning the experience of jail into a vehicle for maximizing her rehabilitation.”

The SJA subsequently provided the convening authority with a document entitled, “ADDENDUM TO THE STAFF JUDGE ADVOCATE’S RECOMMENDATION.” In the course of recommending that the convening authority reject appellant’s clemency request for a reduction in confinement, the SJA stated:

All of the matters submitted for your consideration in extenuation and mitigation were offered by the defense at trial; and the seniormost military judge in the Pacific imposed a sentence that, in my opinion, was both fair and proportionate to the offense committed.

There is no evidence in the record that the SJA served this addendum on appellant, and the Government has not contested appellant’s representation that the addendum was not served.

The convening authority’s final action, taken on February 6, 1995, did not grant appellant’s clemency request for a induction in confinement. Instead, the convening authority approved the sentence, subject to a modification in the period of forfeitures from 6 to 3 months as l’ecommended by the SJA in the addendum.

Ill

A

The clear import of the SJA’s addendum was that the convening authority should reject the request for clemency because “all of the matters” submitted by the defense had been considered by a judge of considerable stature, who had adjudged a fair and proportionate sentence based, in part, on these same materials. The SJA introduced a number of new issues for the first time in the addendum, including whether the submitted materials had been considered by the military judge in arriving at his sentence; what role, if any, the military judge’s stature should play in the convening authority’s assessment of appellant’s clemency request; and the nature of the stature of the military judge as suggested by the adjective “senior-most.” These issues were introduced by the SJA for the convening authority to weigh in the balance against the request for clemency. Under such circumstances, these were new matters, and the defense was entitled to receive notice of these matters and an opportunity to respond. See United States v. Chat-man and United States v. Leal both supra.

B

The remaining question is whether appellant is entitled to a new SJA recommendation and new action by the convening authority or whether this new matter is so “trivial” that appellant could not have been prejudiced by the additional weight that it added to the scales. In our view, the message sent by the SJA was “erroneous, inadequate, ... [and] misleading.” See Narine, 14 MJ at 57; RCM 1106(f)(4).

The addendum was erroneous in suggesting that the matters submitted by appellant had been considered by the military judge at trial. In fact, much of the clemency package was developed after trial. It was also misleading for the SJA to imply that another decisionmaker — the military judge — had considered the same material. Given the opportunity to respond, appellant could have corrected the SJA’s erroneous description of the post-trial submission and the misleading implication that flowed from it.

A further problem with the addendum is that the SJA, for the first time in this case, sought to rationalize and bolster his own recommendation as to the period of confinement by expressly invoking the persuasive weight of the judgment of the military judge. In the addendum, the SJA contended that the military judge at trial, when presented with the same information as presented to the convening authority on review, had given a sentence that was “both fair and proportionate.” The initial recommendation from the SJA neither contained a similar reference to the judge imposing a “fair and proportionate” sentence nor raised the more fundamental question in that context of the relationship between the responsibilities of the military judge at trial and the responsibilities of the convening authority in the post-trial review.

The sentencing authority at trial is required to adjudge an “appropriate sentence,” subject to the maximum punishment for the offense and the rules governing evidence in sentencing proceedings. See RCM 1001. In determining what sentence is appropriate, it is not proper to rely on the possibility of mitigating action by the convening authority. See RCM 1005(e)(3). The convening authority, on the other hand, is not limited to considering evidence that is admissible at a court-martial. See RCM 1107(b)(3)(B)(iii). The fact that the military judge has imposed a lawful and appropriate sentence does not restrain the convening authority, who “may for any or no reason disapprove a legal sentence in whole or in part____” RCM 1107(d)(1). The convening authority is directed to “approve that sentence which is warranted by the circumstances of the offense and appropriate for the accused.” RCM 1107(d)(2).

If the SJA’s addendum had been served on appellant and her counsel, appellant would have had the opportunity to focus the convening authority’s attention on the differences between the responsibilities of the military judge and the convening authority, as well as the different types of information that could be considered. Failure to do so was inconsistent with the notice-and-response requirements of RCM 1106(f)(7).

This error was compounded by the SJA’s effort to bolster further his recommendation by referring to the military judge as “the seniormost military judge in the Pacific.” Assuming, as the Government contends, that the novel term “seniormost” was intended to refer to the status of the military judge as the Chief Judge in the Pacific for the Air Force, this addition to the equation for the first time in the addendum cannot be dismissed as “trivial.” The stature of the military judge played no role in the trial¹, was not mentioned by the SJA in his initial recommendation, and was not raised by appellant in her response to the recommendation. Moreover, although not necessary to our decision, we note that reference to the military judge as “seniormost” potentially was misleading because there is no requirement that the “most senior” judge or the “Chief Judge” of an Air Force circuit have any particular degree of judicial experience.²

The SJA’s clear message to the convening authority, in effect, was as follows: A military judge of considerable stature, who considered the same materials that appellant now submits to you, adjudged a fair and proportionate sentence, and you should approve it.

IV

Appellant was found guilty of desertion. The central issue in this ease is not whether the sentence adjudged for that offense was lawful but whether applicable procedural steps were followed during post-trial proceedings involving exercise of the convening authority’s broad discretion to modify an otherwise lawful sentence.

The convening authority has virtually unfettered power to modify a sentence in an accused’s favor, including disapproval of a punitive discharge, on the basis of clemency or any other reason. Art. 60(c)(2); ROM 1107(d)(1); see United States v. Wilson, 9 USCMA 223, 226, 26 CMR 3, 6 (1958). Congress and the President have established procedures to ensure that the convening authority makes this decision on the basis of an informed recommendation by the SJA and a response by the accused. As noted at the outset of this opinion, one of the procedures established by the President to ensure that the convening authority receives a fair and accurate presentation is the requirement in ROM 1106(f)(7) that, if the SJA prepares an addendum to the recommendation that contains new matter, the accused must have notice and an opportunity to respond — -just like the accused would have had if the new matter had been in the original recommendation. This requirement was not fulfilled in this ease.

In the addendum, the SJA supplemented his initial recommendation by inserting new references to material not considered by the military judge, the stature of the military judge, and the sentence imposed by the military judge. The SJA’s apparent belief that his recommendation needed such bolstering is understandable in the context of this case. The command had treated appellant’s case with relative sympathy from the outset. Appellant’s offense occurred while she was on emergency leave from Okinawa to be in the United States with her stepfather, who had suffered a stroke. He died while she was home. Her mother, who had other problems, persuaded her to stay past her leave date.

After remaining absent without leave, she eventually turned herself in to Air Force authorities. Although the command sought to hold her accountable for her. actions, her situation apparently struck a responsive chord with the commander who convened the court-martial, who decided to treat the desertion charge as a relatively minor matter by referring it to a special court-martial rather than to a general court-martial. Recognizing the sympathetic nature of the ease, the SJA altered his initial recommendation by inserting in the addendum a recommendation for reduction in forfeitures, but he relied on his references to the actions of the military judge in recommending that the sentence otherwise be approved.

The issue before us is not whether it was permissible for the SJA to prepare an addendum that sought to bolster his initial recommendation through references to the stature and actions of the military judge. The issue, which we decide in appellant’s favor, involves failure to comply with RCM 1106(f)(7), under which appellant should have had an opportunity to receive notice of the new matter, along with the concomitant opportunity to respond to and correct the misleading information contained therein before the convening authority acted on appellant’s clemency petition.

V

The decision of the United States Air Force Court of Criminal Appeals and the action of the convening authority are set aside. The record of trial is returned to the Judge Advocate General of the Air Force for submission to a different convening authority for action after compliance with Article 60 and RCM 1105 and 1106. Thereafter, Articles 66 and 67, UCMJ, 10 USC §§ 866 and 867 (1994), respectively, shall apply.

Chief Judge COX and Judges SULLIVAN and GIERKE concur.

1 . At the outset of the trial, the military judge had noted as a ministerial matter that he had detailed himself to the trial in his capacity as "Chief Judge of the Pacific Circuit," but no further reference to this status was made in the trial or post-trial proceedings prior to issuance of the addendum.

2 . Assuming that the term "seniormost” means "most senior," it does not necessarily bear any relationship to judicial experience. Resort to standard reference works makes it clear that the term “senior” can have a variety of meanings, including chronological age, length of service in a profession, length of service- in a particular position, a person of higher rank or standing, precedence in making certain decisions, and a person accorded respect because of age. See Webster's Third New International Dictionary 2066 (1981); The Random House College Dictionary 1198 (Rev. ed.1975); The American Heritage Dictionary 1116 (2d college ed.1985 ). The applicable regulation concerning designation of the Chief Judge of a Circuit does not provide any more useful guidance. See para. 18-13a, Air Force Regulation 111-1 (12 July 1989) (simply noting that the Chief Judge is the “senior military judge who is designated as the chief judge of a circuit,” leaving “senior" undefined). As a result, it is possible that a person designated as the "senior judge” might be an individual who is senior in status as a military officer but relatively inexperienced as a judge, as a criminal law specialist, or even as a judge advocate. The purpose of serving the addendum on the accused is to provide an opportunity to bring any such ambiguities to the convening authority's attention.