United States v. Buller

Opinion of the Court

EFFRON, Judge:

At his general court-martial, appellant pleaded guilty to separate specifications of use and distribution of marijuana and use and distribution of cocaine, in violation of Article 112a, Uniform Code of Military Justice, 10 USC § 912a. The military judge sentenced him to a bad-conduct discharge, confinement for 15 months, total forfeitures, and reduction to the lowest enlisted grade. Pursuant to a pretrial agreement, the convening authority reduced the confinement to 12 months and approved the balance of the adjudged sentence. The Court of Criminal Appeals affirmed in an unpublished opinion.

On appellant’s petition, we granted review to consider “whether the staff judge advocate [SJA] erred, in his addendum to his post-trial recommendation to the convening authority, by including new matters without serving the same upon appellant.” For the reasons discussed below, we hold that appellant was not prejudiced by the failure to serve the addendum on the defense for comment under the circumstances of this case.

I

After the SJA’s post-trial recommendation to the convening authority was served on appellant and his counsel, defense counsel submitted matters for consideration by the convening authority. See RCM 1105 and 1106(f), Manual for Courts-Martial, United States (1994 ed.). The defense submission included a letter from appellant in which he acknowledged that both the discharge and the adjudged reduction in grade were “appropriate” punishments. He requested that the period of confinement be reduced to 6 months, however, in view of the assistance that he had provided to law enforcement authorities. Appellant also requested that the sentence to total “forfeitures be reduced to $500 a month.” He explained that he had debts to “honorable people” totaling $1,500 and that he made “payments of $100 a month to these creditors.” He requested the reduction in adjudged forfeitures so that he would not become “financially irresponsible to these people.”

On May 3, 1994, the SJA signed an addendum to his earlier recommendation in which he addressed appellant’s request for clemency. In his comment on appellant’s clemency request with respect to forfeitures, the SJA noted that

forfeitures do not take effect until you sign the action, so that the accused has received his pay of over $900 per month since his trial and confinement in January. I see no reason to add to this amount by further reducing his forfeitures.

There is no indication in the record that this addendum was served on the defense before the convening authority approved the sentence as modified to reflect the terms of the pretrial agreement.

II

Appellant contends that the SJA inserted information regarding his continued receipt of full pay in order to rebut his clemency plea for reduced forfeitures. In that context, according to appellant, the information constituted “new matter” under RCM 1106(f)(7). Under that Rule, if an addendum contains “new matter,” the defense must be provided with notice and an opportunity to respond before the convening authority takes action on the sentence. See RCM 1107(b)(3)(A).

RCM 1106(f)(7) does not define the term “new matter,” and this Court has not suggested a comprehensive definition. The nonbinding Discussion accompanying the Rule provides a number of illustrations of new matter, which this Court has cited with approval, such as “the effect of new decisions on issues in the case, matter from outside the record of trial, and issues not previously discussed.” See United States v. Chatman, 46 MJ 321, 323 (1997); United States v. Leal, 44 MJ 235, 236 (1996). The non-binding Discussion also notes that “‘[n]ew matter’ does not ordinarily include any discussion by the staff judge advocate ... of the correctness of the initial defense comments on the recommendation.”

Under the circumstances of this case, it is not necessary for us to attempt a more precise definition or to determine whether the material constituted “new matter” under RCM 1106(f)(7). Assuming for purposes of our discussion that the information constituted “new matter” that should have been served on the defense, we conclude that appellant was not prejudiced by the failure to do so.

The essence of the SJA’s statement in this case is that the accused continued to receive pay and allowances during the period between the court-martial and the convening authority’s action. This statement reflected the routine administration of the sentence under the law in effect during the trial and initial review of this case.¹ Under certain circumstances, it is possible that such neutral information could be used in an addendum in such a way that failure to provide the defense with an opportunity to comment would be prejudicial to an accused. For example, if the information is believed to be “erroneous, inadequate, or misleading,” see United States v. Narine, 14 MJ 55, 57 (CMA 1982), then failure to serve the addendum on the defense could be viewed as prejudicial.²

There is no reason for us to conclude that this is such a case. The SJA’s comments responded to an issue raised by appellant— his need for funds — by describing the routine and direct consequences of a court-martial sentence. Because this matter involved appellant’s pay and financial situation, he is in the best position to tell this Court whether the SJA’s otherwise neutral comments were erroneous, inadequate, or misleading (e.g., that he did not, in fact, receive his full pay after trial and before the convening authority’s action). No such showing has been made.

The essence of RCM 1106(f)(7) is fair play — providing the accused with notice of new issues or new information raised by the SJA and an opportunity to respond. In general, we have presumed prejudice when the defense has not been provided with notice of new matter and an opportunity to respond, see Leal, supra at 237,³ but we have not engaged in such a presumption when the information is neutral or “trivial.” See United States v. Jones, 44 MJ 242, 233-44 (1996). Neither the rule nor our precedents require otherwise.

Ill

The decision of the United States Air Force Court of Criminal Appeals is affirmed.⁴

Chief Judge COX and Judges CRAWFORD and GIERKE concur.

1 . The recent changes to Article 57, Uniform Code of Military Justice, 10 USC § 857, permitting forfeiture of pay or allowances to take effect 14 days after the sentence is adjudged unless deferred by the convening authority, did not take effect until April 1, 1996. See § 1121(b) of the Military Justice Amendments of 1995, Pub.L. No. 104-106, 110 Stat. 462.

2 . The requirement in RCM 1106(f)(7) to serve "new matter” on the accused for comment "is based on United States v. Narine, 14 MJ 55 (CMA 1982).” Drafters’ Analysis, Manual for Courts-Martial, United States (1994 ed.) at A21-78.

3 . In United States v. Chatman, 46 MJ 321 (1997), we addressed the question of the applicable appellate standard when the staff judge advocate fails to serve the defense with an addendum containing new matter. We held that, "for all cases in which a petition for review is filed after the date of” the Chatman decision, "we will require appellant to 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 colorable 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 323-324.

4 . Although we have not found prejudicial error in this case, we note that the potential remains for substantial appellate litigation in future cases over issues such as whether the addendum interjects a new issue, whether the information is neutral, and, if so, whether it has been presented in a manner that is erroneous, inadequate, or misleading. Such litigation can be avoided through the relatively simple process of serving the addendum on the accused in all cases, regardless whether it contains "new matter.” Under current rules, however, the decision as to whether all addenda should be served rests with the SJA, and the decision as to whether the rule should be changed to eliminate this source of appellate litigation rests with those responsible for rulemaking in the Executive Branch.