United States v. Moore

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM S32423
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UNITED STATES
Appellee
v.
Sonia E. MOORE
Airman First Class (E-3), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Decided 19 December 2017
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Military Judge: Andrew Kalavanos.
Approved sentence: Bad-conduct discharge, confinement for 4 months,
and reduction to grade of E-1. Sentence adjudged 23 May 2016 by
SpCM convened at Pope Army Airfield, North Carolina.
For Appellant: Major Melissa Biedermann, USAF; Captain Patricia
Encarnación Miranda, USAF.
For Appellee: Major Cara J. Condit, USAF; Major Mary Ellen Payne,
USAF; Gerald R. Bruce, Esquire.
Before HARDING, SPERANZA, and HUYGEN, Appellate Military
Judges.
Judge HUYGEN delivered the opinion of the court, in which Senior
Judge HARDING and Judge SPERANZA 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This is an unpublished opinion and, as such, does not serve as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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HUYGEN, Judge:
A military judge sitting as a special court-martial convicted Appellant, in
accordance with her pleas, of one specification of false official statement, four
United States v. Moore, No. ACM S32423
specifications of wrongful use of oxycodone, and two specifications of wrongful
use of hydrocodone, in violation of Articles 107 and 112a, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. §§ 907, 912a. Appellant was acquitted of
one specification of failure to obey an order, in violation of Article 92, UCMJ,
10 U.S.C. § 892. Appellant pleaded not guilty to one specification of wrongful
use of oxymorphone, which was later withdrawn and dismissed pursuant to a
pretrial agreement (PTA). The military judge sentenced Appellant to a bad-
conduct discharge, confinement for four months, and reduction to the grade of
E-1. The convening authority approved the adjudged sentence.
On appeal, Appellant asserts that she was denied meaningful opportunity
for clemency when the staff judge advocate’s recommendation (SJAR) mis-
stated the evidence on which her conviction was based. We find a colorable
showing of possible prejudice but not on the basis cited by Appellant. Instead,
we find plain error attributable to the addendum to the SJAR. Specifically,
the addendum to the SJAR failed to account for the terms of the PTA and
failed to correct the clemency submission’s misstatement of the convening
authority’s options under Article 60, UCMJ, 10 U.S.C. § 860. As a result, we
remand and order new post-trial processing.
I. BACKGROUND
Appellant was ordered to provide a urine sample as part of a squadron in-
spection on 9 December 2015. The sample tested positive for oxycodone and
oxymorphone. Oxycodone is a prescription pain medication sold under many
names, including Percocet. When oxycodone (the drug) is ingested and ab-
sorbed, it breaks down into several metabolites that can then be present in
urine, including both oxycodone (the metabolite) and oxymorphone. On
8 January 2016, an Air Force Office of Special Investigations (AFOSI) agent
interviewed Appellant, who stated that, several days after providing the
urine sample, she realized that she had accidentally taken her husband’s
medication, which looked like medication she had been dispensed. When in-
terviewed, Appellant’s husband stated that he had been prescribed Percocet.
Also on 8 January 2016, Appellant was ordered and provided a urine
sample for a “Bickel test.” 1 The sample tested positive for hydrocodone, hy-
dromorphone, oxycodone, and oxymorphone. Like oxycodone, hydrocodone is
a prescription pain medication sold under many names. When hydrocodone
1 United States v. Bickel, 30 M.J. 277, 282, 288 (C.M.A. 1990) (holding that the test-
ing of servicemembers’ urine for drugs pursuant to an inspection is constitutionally
valid and that a later test is a continuation of the original inspection).
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United States v. Moore, No. ACM S32423
(the drug) is ingested and absorbed, it breaks down into several metabolites
that can then be present in urine, including both hydrocodone (the metabo-
lite) and hydromorphone. On 29 January 2016, a subsequent “Bickel test” re-
turned a positive result for oxycodone and oxymorphone in Appellant’s urine.
On 17 February 2016, a third “Bickel test” returned a positive result for hy-
drocodone, hydromorphone, and oxymorphone in Appellant’s urine.
Appellant and the special court-martial convening authority entered into
a PTA in which Appellant agreed, inter alia, to enter into a stipulation of fact
regarding the charges and specifications to which she would plead guilty and
to plead guilty to charges and specifications concerning Articles 107 and
112a, UCMJ. In exchange, the convening authority agreed to withdraw and
dismiss one specification of wrongful use of oxymorphone after the military
judge accepted Appellant’s guilty plea on the other Article 112a specifica-
tions. Also, the convening authority agreed to approve no confinement in ex-
cess of 60 days if a bad-conduct discharge was adjudged.
At trial, the military judge reviewed the stipulation of fact admitted as
Prosecution Exhibit 1 with Appellant and accepted Appellant’s plea of guilty
on one specification of false official statement, four specifications of wrongful
use of oxycodone, and two specifications of wrongful use of hydrocodone. The
Prosecution called three witnesses—Appellant’s first sergeant, the observer
for Appellant’s 17 February 2016 urine sample, and the drug testing program
administrative manager for the drug demand reduction program at Pope Ar-
my Airfield—to testify on the specification of failure to obey an order, specifi-
cally, the 17 February 2016 order for Appellant to provide a urine sample.
The military judge ultimately acquitted Appellant of the specification of fail-
ure to obey an order.
The confinement order, dated 23 May 2016, the day of trial, accurately
described the adjudged sentence, including confinement for four months, and
indicated Appellant’s receipt for confinement at Hoke County Detention Cen-
ter in Raeford, North Carolina. 2 It did not mention the PTA terms.
The SJAR, dated 27 July 2016, stated in paragraph 2, “The primary evi-
dence against the accused consisted of a plea of guilty, a stipulation of fact,
and testimony by Air Force Drug Testing Lab personnel and the accused’s
first sergeant.” Paragraph 4 of the SJAR accurately described the adjudged
sentence. Paragraph 5 accurately described the PTA and continued,
2A full four-month confinement that began on 23 May would end on 19 September; a
60-day confinement would end on 21 July.
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United States v. Moore, No. ACM S32423
In accordance with the pretrial agreement, I recommend you
only approve so much of the sentence as calls for 60 days con-
finement, reduction to E-1, and a bad conduct discharge. You
do not have the authority to disapprove, commute, or suspend
in whole or in part the punitive discharge. You do have the au-
thority to disapprove, commute, or suspend in whole or in part
the reduction in grade and the confinement.
Attached to the SJAR, the Report of Result of Trial accurately described the
adjudged sentence and the conditions of the PTA except the omission of “ap-
prove” before “no confinement in excess of.”
On 8 August 2016, Appellant requested clemency and asked specifically
that the convening authority “reconsider” the bad-conduct discharge. In the
request, Appellant referred to serving confinement at the “Hoke County Jail”
and described what she had done since “getting out of confinement.”
Appellant’s clemency request was attached to a memorandum from trial
defense counsel, also dated 8 August 2016. The memo referred to the ad-
judged confinement as “4 months confinement (reduced to 2 months by virtue
of a Pre-Trial Agreement)” and stated, “[Appellant] has served her term of
confinement at the Hoke County Correctional Facility, and is awaiting being
placed on Excess and Appellate leave . . .” Trial defense counsel wrote,
[D]ue to the current state of the law, you only have the authori-
ty to reduce the reduction in rank . . . Specifically, in this case,
you could only reduce the reduction in rank . . . AB Moore re-
quests her BCD be disapproved, by whomever might eventually
have the authority to do so.
On 11 August 2016, the SJA signed the addendum to the SJAR and at-
tached Appellant’s clemency request. Paragraph 2 of the addendum, in its
entirety, read as follows:
I reviewed the attached clemency matters submitted by the de-
fense. My earlier recommendation remains unchanged. I rec-
ommend that you approve the findings and sentence as ad-
judged, and except for the Bad Conduct Discharge, order the
sentence executed.
Although the SJAR was attached to the addendum, the addendum itself nei-
ther mentioned the PTA nor repeated the convening authority’s clemency op-
tions to affect the reduction in grade and confinement but not the bad-
conduct discharge.
The convening authority’s action, dated 11 August 2016, stated, in part,
“the sentence is approved and, except for the bad conduct discharge, will be
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United States v. Moore, No. ACM S32423
executed. The term of confinement having been served, no place of confine-
ment is designated.”
II. DISCUSSION
Appellant asserts a very specific error that the SJAR misstated the evi-
dence on which her conviction was based. The Government concedes that
there was no witness testimony used to prove the specifications of which Ap-
pellant was convicted and that there was no witness testimony from
“Air Force Drug Testing Lab personnel.” Article 60(e), UCMJ, requires an
SJAR for a special court-martial that includes a bad-conduct discharge. Rule
for Courts-Martial (R.C.M.) 1106(d)(3) sets out the required contents of an
SJAR but does not include a description of the evidence used to convict. In-
stead, the SJAR sentence at issue was modeled on the SJAR template found
at Figure 9.17 of Air Force Instruction 51-201 (30 Jul. 2015). To comply with
R.C.M. 1106, the SJAR need not have included the sentence that begins “The
primary evidence against the accused” but, once included, it needed to be ac-
curate. It was not. Appellant raises the issue on appeal but did not do so dur-
ing the period to submit matters under R.C.M. 1105 or 1106(f). While we find
the sentence in the SJAR constituted obvious error, Appellant did not make a
colorable showing of possible prejudice affecting her opportunity for clemency
with respect to this error. Although the threshold is low, Appellant did not
cross it for this very specific error.
The proper completion of post-trial processing is a question of law the
court reviews de novo. United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000).
Failure to comment in a timely manner on matters in the SJAR or matters
attached to the SJAR waives in the absence of plain error, or forfeits, any lat-
er claim of error. R.C.M. 1106(f)(6); United States v. Scalo, 60 M.J. 435, 436
(C.A.A.F. 2005). Analyzing for plain error, we assess whether “(1) there was
an error; (2) it was plain or obvious; and (3) the error materially prejudiced a
substantial right.” Scalo, 60 M.J. at 436 (quoting Kho, 54 M.J. at 65). “To
meet this burden in the context of a post-trial recommendation error . . . an
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.
Here, we find plain error attributable to the addendum to the SJAR on two
bases.
First, the failure of the addendum to the SJAR to account for the terms of
the PTA is plain error necessitating new post-trial processing. The adden-
dum’s failure was reflected in the convening authority’s action. By approving
the sentence as adjudged, the convening authority seemingly failed to fulfill a
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United States v. Moore, No. ACM S32423
term of the PTA and thus may have deprived Appellant of the most signifi-
cant benefit of the PTA—the 60-day cap on confinement when four months of
confinement was adjudged. This error merits more than the footnote that ap-
pears in Appellant’s brief; it is the heart of Appellant’s case. Furthermore, it
is an error that requires new post-trial processing. In other cases, we have
been able to devise a remedy to fix a mistake that would be avoided altogeth-
er with sufficient attention to detail by legal personnel, those who support
and advise the convening authority as well as those who counsel and advo-
cate for the individual Airman on trial. See, e.g., United States v. Campbell,
No. ACM 39036, 2017 CCA LEXIS 637, at *1 (A.F. Ct. Crim. App. 26 Sep.
2017) (unpub. op.). Unfortunately for the convening authority and, more im-
portantly, Appellant, the legal personnel involved in this case created an er-
ror of executing the sentence as adjudged. While Appellant’s clemency sub-
mission indicates she did not serve the full four months of adjudged confine-
ment, the record contains no document that proves Appellant received the
benefit of the PTA and was released from confinement no later than 60 days
after entering.
Secondly, the failure of the addendum to correct the erroneous statement
in the clemency submission that the convening authority “could only reduce
the reduction in rank” is plain error necessitating new post-trial processing.
In fact, the convening authority could also affect the adjudged four months of
confinement, even beyond honoring the 60-day cap of the PTA. Trial defense
counsel’s statement was more than an omission of confinement; it excluded
confinement and thus incorrectly stated the law, i.e., Article 60, UCMJ. The
SJA was obligated to note the error in the addendum and correct it. United
States v. Addison, 75 M.J. 405 (C.A.A.F. 2016) (unpub. op.). Such a note
would likely constitute a new matter and prompt notice and an opportunity
for the accused and counsel to respond. R.C.M. 1106(f)(7). Because Appel-
lant’s case is being returned for new post-trial processing, including a new
SJAR, conflict-free trial defense counsel can avoid the problem altogether by
not making incorrect statements of the law concerning the convening authori-
ty’s clemency options. 3
3 Appellant has not claimed ineffective assistance of trial defense counsel, but we are
concerned about this not uncommon scenario. An incorrect statement by trial defense
counsel about the convening authority’s clemency options may reflect a lack of under-
standing of Article 60, UCMJ, and result in inaccurate or incomplete advice to Air-
men who might otherwise seek clemency. Trial defense counsel must understand Ar-
ticle 60, UCMJ, and advise and assist their clients accordingly. Trial defense counsel
are also expected to review the SJAR and comment, as appropriate, on any matter
believed to be erroneous, inadequate, or misleading pursuant to R.C.M. 1106(f).
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While we are returning the case because of the problematic addendum,
we are directing new post-trial processing, including a new SJAR, to maxim-
ize the opportunity for a fully corrected record. To assist with that necessary
and achievable goal, we note the following:
(1) The SJAR misstated the evidence used to convict Appellant.
(2) The convening authority’s action simply “approved” the sentence,
which in effect approved the sentence as adjudged without implementing the
PTA.
(3) The court-martial order must set forth each charge and specification
and the findings or other disposition of each charge and specification. R.C.M.
1114(c)(1). When the order failed to do so in Appellant’s case, it failed to cap-
ture that Appellant pleaded not guilty to Additional Charge II, Specification
3, which was withdrawn and dismissed. The particular specification also in-
correctly referenced “Hydrocodone” instead of “Oxymorphone.”
III. CONCLUSION
The record of trial is returned to The Judge Advocate General for remand
to the convening authority for new post-trial processing and conflict-free trial
defense counsel consistent with this opinion. Article 66(e), UCMJ, 10 U.S.C. §
866(e). Thereafter, the record of trial will be returned to this court for comple-
tion of appellate review under Article 66, UCMJ.
FOR THE COURT
KATHLEEN M. POTTER
Acting Clerk of the Court
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