United States v. Ekabe

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM 39186
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UNITED STATES
Appellee
v.
Terence N. EKABE
Senior Airman (E-4), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Decided 10 April 2018
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Military Judge: Ryan A. Hendricks.
Approved sentence: Dishonorable discharge, confinement for 1 year and
6 months, forfeiture of all pay and allowances, and reduction to E-1.
Sentence adjudged 15 September 2016 by GCM convened at Joint Base
McGuire-Dix-Lakehurst, New Jersey.
For Appellant: Major Allen S. Abrams, USAF.
For Appellee: Colonel Julie L. Pitvorec, USAF; Lieutenant Colonel Jo-
seph J. Kubler, USAF; Lieutenant Colonel G. Matt Osborn, USAF; Ma-
jor J. Ronald Steelman III, USAF; Mary Ellen Payne, Esquire.
Before HARDING, SPERANZA, and HUYGEN, Appellate Military
Judges.
Judge SPERANZA delivered the opinion of the Court, in which Senior
Judge HARDING and Judge HUYGEN 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This is an unpublished opinion and, as such, does not serve as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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United States v. Ekabe, No. ACM 39186
SPERANZA, Judge:
A military judge sitting as a general court-martial convicted Appellant,
consistent with Appellant’s pleas pursuant to a pretrial agreement, of ab-
sence without leave; assault consummated by a battery of his spouse; and
service-discrediting conduct for throwing a dog against a wall, in violation of
Articles 86, 128, and 134, Uniform Code of Military Justice (UCMJ), 10
U.S.C. §§ 886, 928, 934. The military judge sentenced Appellant to a dishon-
orable discharge, one year and six months of confinement, forfeiture of all pay
and allowances, and reduction to E-1. The convening authority approved the
adjudged sentence. 1
On appeal, Appellant claims that he is entitled to new post-trial pro-
cessing because the staff judge advocate’s recommendation (SJAR) and the
court-martial order (CMO) “inaccurately captured the findings.” We find no
prejudicial error and affirm.
I. BACKGROUND
Appellant, a naturalized citizen from the Republic of Cameroon, physical-
ly abused his Cameroonian wife over approximately four months after she
joined him in New Jersey. During the last assault in which Appellant
punched his wife in the eye, Appellant threw their two-month old pit bull
against a wall. Appellant’s wife photographed her own injuries and flew to
Texas to escape the abuse.
While in Texas, Appellant’s wife obtained a protective order against Ap-
pellant. The Air Force Office of Investigations (AFOSI) was notified of the
domestic violence allegations against Appellant and interviewed Appellant,
who admitted to physically abusing his wife while they lived together in New
Jersey.
Three months after a second interview with AFOSI, Appellant requested
and was granted leave in the local area in order to “rest and clear [his] head.”
After approximately two and a half weeks of local leave, Appellant left near
his apartment building’s dumpster four trash bags containing his uniform
items and financial documents and wrote on a dry-erase board in his apart-
ment a lengthy “suicide note” that confirmed his decision to choose “AWOL”
1 The pretrial agreement limited any term of confinement to no more than 24
months. The agreement placed no other restrictions upon the sentence that could be
approved by the convening authority.
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United States v. Ekabe, No. ACM 39186
over suicide. Appellant flew to Cameroon where he stayed with family for just
over a month.
Appellant did not contact any Air Force officials during his absence but
eventually flew back to North America and attempted to return to the United
States on a bus from Toronto, Canada. Appellant was apprehended by border
patrol agents during a passport check in New York. Appellant was subse-
quently ordered into pretrial confinement.
II. DISCUSSION
In addition to the assault and service-discrediting conduct, Appellant was
charged with desertion in violation of Article 85, UCMJ, 10 U.S.C. § 885, and
rape in violation of Article 120, UCMJ, 10 U.S.C. § 920. In accordance with
the pretrial agreement, Appellant pleaded guilty to absence without leave
instead of desertion, all specifications of assault consummated by a battery
with one exception and substitution, and the service-discrediting conduct of
throwing the dog into a wall with excepted language. In exchange for Appel-
lant’s guilty pleas, the convening authority agreed, in pertinent part, to
amend the desertion charge to the lesser included offense of absence without
leave (terminated by apprehension) and to dismiss with prejudice the rape
charge and its specifications.
Prior to trial, the Article 85, UCMJ, desertion charge was amended to al-
lege a violation of Article 86, UCMJ, absence without leave; the rape charge
and its specifications were dismissed; one assault consummated by a battery
specification was amended with the agreed exception and substitution; and
the Article 134, UCMJ, specification was amended to remove the agreed ex-
cepted language. After these changes were made to the charge sheet, the
charges were renumbered to reflect the dismissal of the rape charge (original-
ly Charge II). Appellant was subsequently arraigned and pleaded guilty to all
charges and specifications.
After trial, the staff judge advocate (SJA) provided the convening author-
ity with the SJAR. Throughout the SJAR, the SJA referenced the charges as
originally numbered on the charge sheet. The SJA also stated that the rape
charge and its specifications “were withdrawn” rather than dismissed with
prejudice in accordance with the pretrial agreement. However, the SJAR re-
ferred the convening authority to the attached report of result of trial that
correctly stated the charges at arraignment, Appellant’s pleas, and the mili-
tary judge’s findings. The SJAR also correctly stated the convening authori-
ty’s options for action on the findings and sentence. Appellant submitted a
personal letter offering matters in extenuation and mitigation for the conven-
ing authority’s consideration in clemency. Appellant did not identify any legal
errors with the SJAR or request any specific relief from the convening au-
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United States v. Ekabe, No. ACM 39186
thority. The addendum to the SJAR restated the SJA’s recommendation that
the convening authority approve the adjudged sentence. The convening au-
thority approved the adjudged sentence.
The resulting CMO contained several errors. The order erroneously stated
Appellant’s pleas and the findings as to the absence without leave charge and
specification; Appellant’s pleas and findings as to one of the assault specifica-
tions; and the findings for the specification of service-discrediting conduct.
Although “not disputing what happened at his trial,” Appellant now
claims that he was prejudiced in two ways by what he deems the “plain and
obvious error” in the SJAR. First, Appellant maintains “the post-trial pro-
cessing muddled whether the original Charge II was dismissed with prejudice
as bargained for in the [pretrial agreement].” Second, Appellant notes “the
convening authority affirmatively asserted he considered the incorrect
SJAR.” Accordingly, Appellant concludes he was denied procedural due pro-
cess required by the Fifth Amendment 2 and requests we order new post-trial
processing. We decline to do so.
The proper completion of post-trial processing is a question of law we re-
view de novo. United States v. LeBlanc, 74 M.J. 650, 660 (A.F. Ct. Crim. App.
2015) (citing United States v. Sheffield, 60 M.J. 591, 593 (A.F. Ct. Crim. App.
2004)). “If defense counsel does not make a timely comment on an omission
[or error] in the [SJAR], the error is waived unless it is prejudicial under a
plain error analysis.” 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, Appellant must per-
suade this court that “(1) there was an error; (2) it was plain or obvious; and
(3) the error materially prejudiced a substantial right.” Id. (quoting Kho, 54
M.J. at 65).
To meet the third prong of the plain error test in the context of an SJAR
error, Appellant must make “some colorable showing of possible prejudice.”
Id. at 436–37 (quoting Kho, 54 M.J. at 65). “The threshold is low, but there
must be some colorable showing of possible prejudice. . . . in terms of how the
[error] potentially affected an appellant’s opportunity for clemency.” Id. at
437.
As an initial matter, we note that we are once again compelled to resolve
a post-trial processing issue in which hours of appellate review could have
been avoided with several minutes of attention to detail. However, recogniz-
2 U.S. CONST. amend. V.
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United States v. Ekabe, No. ACM 39186
ing that the careless errors in the SJAR and CMO were plain and obvious,
Appellant does not articulate how he may have been prejudiced. Prior to the
initial session and arraignment in Appellant’s court-martial, the Govern-
ment, in accordance with the pretrial agreement, dismissed the rape charge
and its specifications; amended the desertion charge; and changed one of the
assault specifications. Accordingly, the rape charge and its specifications
were not before Appellant’s court-martial. Appellant was properly arraigned
on the remaining charges and specifications, as amended and modified. The
dismissed rape charge and its specifications were not and should not have
been included in the CMO, as Appellant was not arraigned on those offenses.
The report of result of trial accurately captured the disposition of all
charges and specifications that were before Appellant’s court-martial. Im-
portantly, the convening authority was referred to this correct document by
the confusing SJAR. The SJAR’s references to the originally numbered
charges and specifications do not, in and of themselves, amount to some pos-
sible prejudice to Appellant. The convening authority referred the original
charges, was party to the pretrial agreement, and considered a correct report
of result of trial. Furthermore, the SJAR’s mistaken comment about the rape
charge being “withdrawn” rather than “dismissed” or “dismissed with preju-
dice” prior to Appellant’s court-martial does not, without further explanation,
amount to some showing of possible prejudice. The practical effect remained
the same—that charge and its specifications were dismissed, were no longer
before Appellant’s court-martial, and were not presented to the convening
authority for consideration when taking action. Moreover, Appellant makes
no claim that the convening authority failed to abide by the terms of the pre-
trial agreement, that the convening authority intended not to comply with
the agreement’s terms, or that Appellant would have sought some sort of spe-
cific relief in the absence of the SJAR errors. Rather, Appellant complains
that the convening authority’s compliance with the pretrial agreement was
somehow not captured in the post-trial documents. Although the Govern-
ment’s decision to dismiss, amend, and modify charges and specifications pri-
or to Appellant’s arraignment injected confusion during post-trial processing,
Appellant raised no immediate objections, sought no specific relief from the
convening authority who was correctly apprised of his authority on action,
and offered no explanation as to how the post-trial processing would have
proceeded differently—let alone more favorably to Appellant—absent the er-
rors. See United States v. Johnson, 26 M.J. 686, 689 (A.C.M.R. 1988); see also
United States v. Green, 44 M.J. 93, 95 (C.A.A.F. 1996).
While we agree Appellant was entitled to action ordered by a properly ad-
vised convening authority, Appellant is nonetheless required on appeal to
make some colorable showing that he suffered possible prejudice because of
the post-trial processing errors in this case. Merely identifying errors and
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United States v. Ekabe, No. ACM 39186
concluding prejudice does not pass the low threshold. We find that Appellant
failed to meet his burden.
III. CONCLUSION
The findings of guilt and the sentence are correct in law and fact and no
error materially prejudicial to the substantial rights of Appellant occurred.
Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the
findings and sentence are AFFIRMED. 3
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
3 We order a corrected CMO to remedy the errors identified in this opinion.
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