United States v. Hensley

Judge GIERKE

delivered the opinion of the Court.

A military judge sitting as a special court-martial convicted appellant, pursuant to his pleas, of attempted larceny and larceny, in violation of Articles 80 and 121, Uniform Code of Military Justice, 10 USC §§ 880 and 921, respectively. The adjudged and approved sentence provides for a bad-conduct discharge, confinement and forfeitures for 3 months, and reduction to the lowest enlisted grade. The Court of Criminal Appeals affirmed.

Our Court granted review of the following issue:

WHETHER THE LOWER COURT ERRED IN FINDING THAT IT WAS NOT PLAIN ERROR FOR THE POST-TRIAL RECOMMENDATION IN APPELLANT’S CASE TO BE PREPARED BY A “COMMAND SERVICES OFFICER” WHO WAS NEITHER THE CONVENING AUTHORITY’S STAFF JUDGE ADVOCATE NOR HIS LEGAL OFFICER.

For the reasons set out below, we affirm.

Factual Background

Appellant’s court-martial was convened by the commanding officer of the USS JOHN PAUL JONES. The ship’s legal officer asked Lieutenant (LT) Kevin Stampher, Command Services Department Head at the Trial Service Office West, based in San Diego, California, to prepare the post-trial recommendation. LT Stampher is a qualified legal officer.

LT Stampher prepared a post-trial recommendation and submitted it to the convening authority. He signed his own name and identified the document as coming from “Command Services Officer, Trial Service Office West.” The defense was served with the post-trial recommendation and did not object to having it prepared by LT Stampher instead of the ship’s legal officer. Defense counsel did, however, point out to LT Stam-pher that he had neglected to mention appellant’s petition for clemency. LT Stampher then submitted an addendum to his recommendation and served a copy on the defense counsel, again identifying himself and his organization in the same manner as in the post-trial recommendation. Again, defense counsel did not challenge LT Stampher’s authority.

The record is silent on the involvement of the convening authority in obtaining the assistance of LT Stampher. It does not reflect whether the ship’s legal officer was directed to request that LT Stampher prepare the post-trial recommendation, or whether the request was with the knowledge or approval of the convening authority. During oral argument, however, appellate government counsel conceded that LT Stampher was not formally designated by competent authority to act as legal officer in this case. Because LT Stampher identified himself and his organization, it is evident that the convening authority knew the source of the post-trial recommendation and chose to rely on it.

Discussion

Appellant now asserts that LT Stampher was statutorily unqualified to prepare and submit the post-trial recommendation, because he was not the convening authority’s legal officer. The Government does not directly contest the holding of the court below that it was error for LT Stampher to prepare and submit the post-trial recommendations. The Government argues that any error falls short of plain error and, thus, was waived by appellant’s failure to object to the authorship of the post-trial recommendation.

Article 60(d), UCMJ, 10 USC § 860(d) (1983), requires that the convening authority “obtain and consider the written recommendation of his staff judge advocate or legal officer.” (Emphasis added.) RCM 1106(c)(1), Manual for Courts-Martial, United States (1995 ed.),^* provides in pertinent part as follows:

If the convening authority does not have a staff judge advocate or legal officer, or if the person serving in that capacity is disqualified under subsection (b) of this rule or otherwise, the convening authority shall:

(A) Request the assignment of another staff judge advocate or legal officer to prepare a recommendation under this rule; or

(B) Forward the record for action to any officer exercising general court-martial jurisdiction as provided in RCM 1107(a).

Neither Article 60 nor RCM 1106 requires that the convening authority’s request for designation of another staff judge advocate or legal officer be in writing or personally communicated by the convening authority.

The granted issue is a question of first impression for this Court. However, the Army and Navy courts have addressed the issue, with opposite results. In United States v. Sparks, 20 MJ 985 (NMCMR 1985), the 'court-martial was convened by the commanding officer, USS MCKEE, who had a legal officer assigned to his ship. For reasons not disclosed in the record, the post-trial recommendation was prepared by the staff judge advocate (SJA) for the Commander Submarine Squadron Three (COMSU-BRONTHREE). The Navy-Marine Corps Court of Military Review applied the presumption of regularity and denied a motion from appellate defense counsel to produce the document requesting the SJA of COM-SUBRONTHREE to prepare the post-trial recommendation. Having presumed that the convening authority had properly requested the SJA of COMSUBRONTHREE to act in place of his legal officer, the Navy court also tested for prejudice and found none.

In United States v. Gavitt, 37 MJ 761 (ACMR 1993), the SJA, Berlin Brigade, was disqualified because he had engaged in an ex parte communication with several members of the court-martial. He informally arranged to have the SJA, 3d Infantry Division, prepare the post-trial recommendation. There was no evidence that the convening authority sanctioned this arrangement. The Army court declined to apply the presumption of regularity and did not test for prejudice. It ordered a new post-trial recommendation and action.

In United States v. Hall, 39 MJ 593 (ACMR 1994), the Army court again found error when the wrong SJA prepared the post-trial recommendation. The SJA, Fort Riley, Kansas, prepared the post-trial recommendation and served it on the defense. The defense alleged that the Fort Riley SJA was disqualified because a subordinate of the SJA had initiated the charges. The Fort Riley SJA requested the SJA, Fort Leavenworth, Kansas, to prepare the post-trial recommendation. Like Gavitt, the case was informally transferred by agreement between the two SJAs involved, without involving the convening authorities. Unlike Gavitt, however, the court in Hall found that the error was “consciously and deliberately waived.” Id. at 595. The court found waiver based on comments from the trial defense counsel after being served with the Fort Leavenworth S JA’s recommendation, where defense counsel commented that the disqualification of the Fort Riley SJA was resolved by having another SJA prepare the recommendation.

Because the Government has conceded error in the case before us, we need not decide whether the presumption of regularity invoked by the Navy court in Sparks should be applied. We turn instead to the question whether the conceded error amounts to plain error. See United States v. Powell, 49 MJ 460, 463-65 (1998). The error was obvious, because LT Stampher clearly identified himself as someone other than the ship’s legal officer. The key question is whether the error materially prejudiced a substantial right.

Article 60(d) gives an accused the right to a recommendation prepared by a qualified officer. Cf. United States v. Finster, 51 MJ 185 (1999). Article 60(d) does not, however, give an accused a right to a recommendation from a specific individual. ROM 1106(c)(1) gives a convening authority the option to request the assignment of another SJA or legal officer for a specific case, or to forward the record to another convening authority. ROM 1106(c)(1) does not require the consent of the accused.

Once competent authority designates a substitute SJA or legal officer, that officer becomes the convening authority’s SJA or legal officer within the meaning of Article 60(d). Thus, a post-trial recommendation from someone other than the ship’s legal officer does not materially prejudice a substantial right, because an accused does not have a right to a recommendation from that officer. Accordingly, we conclude that the irregular designation of LT Stampher as legal officer for appellant’s case did not materially prejudice a substantial right. We hold, therefore, that the error conceded by the Government does not rise to the level of plain error.

We note also that this case involves more than a passive waiver. Defense counsel not only did not object to LT Stampher submitting the post-trial recommendation, he affirmatively interacted with him, calling appellant’s clemency petition to his attention. LT Stampher responded by submitting an addendum to the convening authority and serving a copy on defense counsel. Defense counsel again did not avail himself of the opportunity to challenge LT Stampher’s authority to submit the addendum. Thus, this case presents a situation more akin to the affirmative waiver found by the Army court in Hall.

Finally, even assuming arguendo that there was plain error, we are satisfied that appellant was not prejudiced as to result. Because LT Stampher was qualified as a legal officer, we are not faced with the same error as in Finster. There is nothing in the record suggesting, and appellant does not assert, that there was any forum shopping or other manipulation of the process authorized by RCM 1106(c) to influence the content of the recommendation. The post-trial recommendation and addendum, considered together, are legally correct. The recommendation was prepared by an officer of greater experience than the ship’s legal officer. Appellant’s requests for deferment and clemency were properly presented to the convening authority. As appellant has made no “color-able showing” that he would have received a more favorable recommendation from the ship’s legal officer, there was no potential for prejudice for the Government to rebut. See United States v. Wheelus, 49 MJ 283 (1998). Accordingly, we conclude that appellant is not entitled to relief.

Decision

The decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

* The 1998 version of this rule is unchanged.