United States v. Scalo

IN THE CASE OF
UNITED STATES, Appellee
v.
Jonathan G. SCALO, Private (E-1)
U.S. Army, Appellant
No. 04-0250
Crim. App. No. 20020624
United States Court of Appeals for the Armed Forces
Argued November 8, 2004
Decided February 8, 2005
EFFRON, J., delivered the opinion of the Court, in which
GIERKE, C.J., BAKER, and ERDMANN, JJ., joined. CRAWFORD, J.,
filed a separate opinion concurring in the result.
Counsel
For Appellant: Major Sean S. Park (argued); Colonel Mark
Cremin, Colonel Robert D. Teetsel, Lieutenant Colonel Mark
Tellitocci and Captain Kathleen D. Schmidt (on brief).
For Appellee: Captain Magdalena A. Przytulska (argued); Colonel
Steven T. Salata, Lieutenant Colonel Margaret B. Baines,
Lieutenant Colonel Theresa A. Gallagher and Lieutenant
Colonel Mark L. Johnson (on brief).
Military Judge: Jeffrey D. Smith
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Scalo, No. 04-0250/AR
Judge EFFRON delivered the opinion of the Court.
At a general court-martial composed of a military judge
sitting alone, Appellant was convicted, pursuant to his pleas,
of wrongful use of marijuana (four specifications), wrongful
possession of marijuana (three specifications), and forgery (two
specifications), in violation of Articles 112a and 123, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. §§ 912a and 923. He
was sentenced to a bad-conduct discharge, confinement for
fourteen months, and forfeiture of all pay and allowances. The
convening authority approved these results and suspended
confinement in excess of twelve months for twelve months
pursuant to a pretrial agreement. The United States Army Court
of Criminal Appeals affirmed. United States v. Scalo, 59 M.J.
646 (A. Ct. Crim. App. 2003) (en banc).
On Appellant’s petition, we granted review of the following
issue:
WHETHER THE UNITED STATES ARMY COURT OF
CRIMINAL APPEALS ERRED BY HOLDING THAT THE
STAFF JUDGE ADVOCATE’S FAILURE TO ADVISE THE
CONVENING AUTHORITY OF THE NATURE AND
DURATION OF APPELLANT’S PRETRIAL RESTRAINT
DID NOT CONSTITUTE PREJUDICIAL ERROR.
Because Appellant failed to make a colorable showing of possible
prejudice from the error in the post-trial recommendation, we
affirm the decision of the Army Court of Criminal Appeals.
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I. BACKGROUND
As we observed in United States v. Finster, 51 M.J. 185,
186 (C.A.A.F. 1999):
One of the distinguishing features of the
military justice system is the broad
authority of the commander who convened a
court-martial to modify the findings and
sentence adjudged at trial. Although
frequently exercised as a clemency power,
the commander has unfettered discretion to
modify the findings and sentence for any
reason -- without having to state a reason -
- so long as there is no increase in
severity.
See also United States v. Davis, 58 M.J. 100, 102 (C.A.A.F.
2003)(describing the convening authority as the accused’s best
hope for clemency). When a sentence includes a punitive
discharge or confinement for one year or more, the convening
authority must receive a written recommendation from his or her
staff judge advocate (SJA) before taking action on the case.
Article 60(d), UCMJ, 10 U.S.C. § 860(d); Rule for Courts-Martial
(R.C.M.) 1106(a). The President has issued detailed guidance as
to the material that must be set forth in the SJA’s
recommendation, including “[a] statement of the nature and
duration of any pretrial restraint.” R.C.M. 1106(d)(3)(D).
The SJA’s recommendation plays a vital role in providing
the convening authority with complete and accurate advice in the
exercise of command discretion. See Finster, 51 M.J. at 187.
Accurate advice is particularly important in light of the fact
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that the convening authority is not required to review the
record of trial personally before taking action. See United
States v. Diaz, 40 M.J. 335 (C.M.A. 1994).
In the present case, the SJA reported to the convening
authority that Appellant had not been subject to any pretrial
restraint. The parties agree that the SJA erred, overlooking
the fact that Appellant had been restricted to the confines of
Fort Stewart, Georgia, for forty-four days prior to his court-
martial. The defense counsel did not comment on this omission.
II. DISCUSSION
If defense counsel does not make a timely comment on an
omission in the SJA’s recommendation, the error is waived unless
it is prejudicial under a plain error analysis. R.C.M. 1106(f);
United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000). We
conduct a de novo review of this issue. Kho, 54 M.J. at 65. To
prevail under a plain error analysis, Appellant must persuade
this Court that: “(1) there was an error; (2) it was plain or
obvious; and (3) the error materially prejudiced a substantial
right.” Id.; see United States v. Powell, 49 M.J. 460, 463, 465
(C.A.A.F. 1998).
The granted issue in the present appeal involves the third
prong of the plain error test -- an appellant’s burden to
establish that the error materially prejudiced a substantial
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right. To meet this burden in the context of a post-trial
recommendation error, whether that error is preserved or is
otherwise considered under the plain error doctrine, an
appellant must make “some colorable showing of possible
prejudice.” Kho, 54 M.J. at 65 (citing United States v.
Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998)). The low threshold
for material prejudice with respect to an erroneous post-trial
recommendation reflects the convening authority’s vast power in
granting clemency and is designed to avoid undue speculation as
to how certain information might impact the convening
authority’s exercise of such broad discretion. See, e.g.,
Wheelus, 49 M.J. at 289.
The threshold is low, but there must be some colorable
showing of possible prejudice. See Kho, 54 M.J. at 65. In the
context of a convening authority’s exercise of post-trial
discretion, the omission of pretrial restraint information is
not inherently prejudicial. There must be a colorable showing
of possible prejudice in terms of how the omission potentially
affected an appellant’s opportunity for clemency.
Appellant argues that we should find a colorable showing of
possible prejudice by looking at his loss of liberty in
conjunction with the clemency matters submitted to the convening
authority and his compliance with a pretrial agreement.
According to Appellant, he was a strong candidate for clemency,
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and knowledge of his pretrial restraint could have been the
additional factor that would have persuaded the convening
authority to grant clemency. Appellant further maintains that
if the pretrial restraint information had been included in the
SJA’s recommendation, the convening authority could have noticed
that Appellant served his pretrial restraint without
disciplinary problems, which could have made the convening
authority more likely to grant clemency.
Appellant’s argument does not reveal any connection between
the time he spent in pretrial restraint and his clemency
request. The petition for clemency that Appellant submitted to
the convening authority highlighted Appellant’s cooperation with
authorities, acceptance of responsibility, and desire to witness
the birth of his child. Appellant did not directly or
indirectly refer to the pretrial restraint or suggest that the
convening authority should take it into account in considering
clemency. Moreover, the 44-day period of pretrial restraint was
not of such unusual duration that there is a reasonable
likelihood that the length alone -- without any mention by
Appellant -- would have attracted the convening authority’s
attention for purposes of clemency. Under these circumstances,
Appellant has not made a colorable showing of possible
prejudice.
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III. CONCLUSION
Accordingly, the decision of the United States Army Court
of Criminal Appeals is affirmed.
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United States v. Scalo, No. 04-0250/AR
CRAWFORD, Judge (concurring in the result):
I concur in the result for the reasons set forth in United
States v. Kho, 54 M.J. 63, 65-66 (C.A.A.F. 2000)(Crawford, C. J.
(concurring in the result)).