United States v. Conrad

U NITED S TATES N AVY –M ARINE C ORPS
C OURT OF C RIMINAL A PPEALS
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No. 201600142
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UNITED STATES OF AMERICA
Appellee
v.
JARNELL A. CONRAD II
Aviation Ordnanceman Airman Apprentice (E-2), U.S. Navy
Appellant
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Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge: Captain Ann K. Minami, JAGC, USN.
For Appellant: Commander R.D. Evans, Jr., JAGC, USN.
For Appellee: Commander Serajul F. Ali, JAGC, USN; Lieutenant
Jetti L. Gibson, JAGC, USN.
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Decided 8 September 2016
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Before FISCHER, 1 CAMPBELL and GROHARING, Appellate Military
Judges
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This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
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PER CURIAM:
At an uncontested special court-martial, a military judge convicted the
appellant of wrongfully distributing a controlled substance and endeavoring
to impede an investigation in violation of Articles 112a and 134, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. §§ 912a and 934. The military
judge sentenced the appellant to five months’ confinement, reduction to pay
grade E-1, and a bad-conduct discharge. The convening authority (CA)
1 Senior Judge FISCHER participated in the decision of this case prior to detaching
from the court.
approved the sentence and, pursuant to a pretrial agreement (PTA),
suspended all confinement in excess of 120 days.
The appellant contends that his trial defense counsel improperly disclosed
privileged communications in a post-trial clemency request, and that
prejudice resulted from the letter altering the CA, before action had been
taken on the court-martial sentence, that the trial defense counsel questioned
the propriety of the appellant’s desired clemency. We disagree.
I. BACKGROUND
During 2015, the appellant sold methylenedioxymethamphetamine,
commonly known as ecstasy or “molly,” to another Sailor from his ship. After
being interviewed by the Naval Criminal Investigative Service (NCIS) for
suspected drug distribution, the appellant told his buyer to lie about their
text message communications to investigators. After initially lying to NCIS,
that Sailor ultimately admitted to sending the previously discovered
incriminating texts about drug distribution and use to the appellant.
In exchange for his guilty pleas, the appellant’s PTA provided, in part,
that while any punitive discharge, confinement, and rank reduction “[m]ay be
approved as adjudged . . . all confinement in excess of 120 days will be
suspended for the period of confinement served plus twelve (12) months
thereafter[.]”2
The sole clemency request in a post-trial filing was for the CA to “approve
only 90 days of confinement.”3 In the filing, the trial defense counsel disclosed
his explaination of the CA’s limited clemency powers to the appellant:
2. I have explained to [the appellant] that the [CA] cannot alter
the adjudged punishments [sic] of a Bad Conduct Discharge. I
have explained to [the appellant] that his single status and
being held in confinement past his EAOS [end of active
obligated service] date negate his ability to receive financial
clemency relief. Therefore, [the appellant] request[s] that the
[CA] approve only 90 days of confinement.
3. I have explained to [the appellant] that the [CA] is bound by
the confinement terms of his pre-trial agreement to suspend 30
days of adjudged confinement over his 120 day deal, and that
his request to approve only 90 days of confinement may run
counter to the language of ALNAV 051/14. Nevertheless, this
request is to approve only 90 days of confinement. Approving
2 Appellate Exhibit XII at 1.
3 Request for Clemency of 8 Mar 2016 at 1.
2
only 90 days will allow [the appellant] to begin his integration
into the civilian world where he will become a more productive
member of society.
....
5. I have explained to [the appellant] that the [CA] cannot
grant financial relief such as deferment or suspension of
forfeiture of pay, as he receives no pay by operation of law as
he is in confinement past the expiration of his EAOS date.
Additionally, [the appellant] has no dependents that he may
defer pay or allowances to under Article 58b, UCMJ.4
II. DISCUSSION
Trial defense attorneys are required to “safeguard the confidentiality of
their clients’ privileged communications unless disclosure is authorized, e.g.,
the client specifically authorizes disclosure, or a client attacks the
effectiveness of his or her attorney, thus waiving the privilege.” United States
v. Danley, 70 M.J. 556, 558 (N-M. Ct. Crim. App. 2011) (citing United States
v. Williams, 57 M.J. 581, 583 (N-M. Ct. Crim. App. 2002); see also United
States v. Blunk, 37 C.M.R. 422, 425 (C.M.A. 1967). This includes preventing
unauthorized disclosure of certain client letters, often referred to in the sea
services as “Blunk” letters, which explain that the attorney advised against
pursuing a punitive discharge or electing not to submit matters in clemency.
Danley, 70 M.J. at 558.
The appellant claims that his trial defense counsel improperly disclosed
privileged communications by informing the CA about previous explanations
of the CA’s clemency limitations to the appellant. But as the appellant never
explicitly alleges the disclosure was made without his authorization, there is
no basis to find the disclosure was unauthorized and thus made erroneously.
See, e.g. United States v. Starling, 58 M.J. 620, 622-23 (N-M. Ct. Crim. App.
2003) (holding that “bare allegations” of “inadequate representation for
failure to exercise . . . post-trial rights” are not “seriously entertained” by this
court, “without the submission of an affidavit by the appellant stating how
counsel’s inaction contrasted with his wishes”).
Even assuming the post-trial disclosure was error, we find the appellant
suffered no prejudice. See United States v. Chatman, 46 M.J. 321, 323
(C.A.A.F. 1997); United States v. Jones, 44 M.J. 242, 243-44 (C.A.A.F. 1996)
(holding that new matter included in an SJA addendum was error but that
the error was harmless). Despite the appellant’s contention that his trial
defense counsel “expressing misgivings about confinement relief undermined
4 Id. at 1-2.
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[the appellant’s] clemency request” for disapproval of some confinement,5 his
clemency request simply could not be undermined by this disclosure. As the
Government properly asserts, “[t]he content of the ‘disclosure’ did not
interfere with [the a]ppellant’s right to full and fair clemency consideration
by the [CA] because it was merely a recitation of the current state of the law”
that “[t]he [t]rial [d]efense counsel had given [the a]ppellant[.]”6 Under the
recent amendments to Article 60(c)(4), UCMJ, the CA had no authority to
lower the appellant’s confinement below 120 days in this case—and even then
only via suspension of adjudged time in excess of that amount pursuant to
the PTA.7
We are confident that the CA would not have reduced the appellant’s
confinement, regardless of the disclosure, since he lacks legal authority to
disapprove adjudged confinement as requested in the context of this case.8
Consequently, any error in the disclosure was harmless.
III. CONCLUSION
The findings and sentence as approved by the CA are affirmed.
For the Court
R.H. TROIDL
Clerk of Court
5 Appellant’s Brief of 21 Jun 2016 at 11.
6 Answer on Behalf of Appellee of 21 Jul 2016 at 10.
7 The National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-
66, 127 Stat. 672 (2013), amended Article 60(c)(4), UCMJ, reducing the CA’s ability
to effect sentences in cases with crimes committed on or after 24 June 2014, except
for those involving only the most minor of offenses.
8 With no prosecutor’s letter documenting the appellant’s cooperation in another
case, the CA’s clemency powers here included only disapproval, commutation, or
suspension of the pay grade reduction. Article 60, UCMJ; Exec. Order. No. 13,696, 80
Fed. Reg. 35,812-13 (22 Jun 2015). The appellant does not contend his trial defense
attorney was ineffective for not requesting such relief, and we find no basis to
conclude that not requesting it was legal error on this record. See United States v.
Ouillette, No. 201600075, 2016 CCA LEXIS 481, unpublished op. (N-M. Ct. Crim.
App. 16 Aug 2016).
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