UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
F.D. MITCHELL, J.A. FISCHER, M.K. JAMISON
Appellate Military Judges
UNITED STATES OF AMERICA
v.
ANTHONY L. EVANS
INFORMATION SYSTEMS TECHNICIAN FIRST CLASS (E -6), U.S. NAVY
NMCCA 201300174
GENERAL COURT-MARTIAL
Sentence Adjudged: 18 January 2013.
Military Judge: CAPT Kevin R. O'Neil, JAGC, USN.
Convening Authority: Commander, Navy Region Southwest, San
Diego, CA.
Staff Judge Advocate's Recommendation: Commander J.M.
Nilsen, JAGC, USN.
For Appellant: LT Gabriel K. Bradley, JAGC, USN.
For Appellee: LT Ian D. MacLean, JAGC, USN.
26 June 2014
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OPINION OF THE COURT
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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.
FISCHER, Judge:
A general court-martial composed of officer and enlisted
members convicted the appellant, contrary to his pleas, of
possession of child pornography in violation of Article 134,
Uniform Code of Military Justice, 10 U.S.C. § 934. The members
sentenced the appellant to eighteen months confinement and a
dishonorable discharge. The convening authority (CA) approved
the sentence as adjudged.
The appellant raises the following four assignments of
error (AOE)1: (1) that he was denied a speedy trial; (2) that he
was unfairly prejudiced when the CA referred charges that were
previously withdrawn for an improper reason; (3) that the
military judge erred when he admitted improper aggravation
evidence in sentencing; and, (4) that the military judge erred
when he directed the members to make special findings.2
After carefully considering the record of trial, the
submissions of the parties, and oral argument,3 we are convinced
that the findings and the sentence are correct in law and fact,
and that no error materially prejudicial to a substantial right
of the appellant occurred. Arts. 59(a) and 66(c), UCMJ.
Background
In October 2010, the Naval Criminal Investigative Service
(NCIS) began investigating the appellant after an authorized
undercover operation identified the appellant’s internet
protocol address as having downloaded child pornography. In
November 2010, NCIS special agents, acting pursuant to a command
authorization and with the appellant’s consent, searched the
appellant’s residence on board U.S. Fleet Activities Sasebo,
Japan and seized several items to include a Toshiba laptop
computer (Item A), an Acer Aspire desktop computer (Item D) and
a Toshiba external hard drive (Item F). In December 2010, NCIS
Cyber Agent AT forensically examined the seized media devices
and found suspected child pornography on Items A, D, and F.
Additionally, in November 2010, NCIS Special Agents JP and CW
questioned the appellant regarding his involvement with child
pornography and the appellant provided a sworn, written
statement in which he admitted to searching for, downloading,
and viewing child pornography on his personal computer.
While the investigation was pending, the appellant was
involuntarily extended on active duty past his scheduled
retirement date in February 2011. In March 2011, the appellant
was sent on temporary additional duty orders from his command,
USS AVENGER (MCM 1) in Sasebo, Japan, to the Transient Personnel
1
A fifth AOE was withdrawn by the appellant.
2
AOE 4 is a summary assignment of error.
3
On 10 April 2014, we heard oral argument on the appellant’s first and second
AOEs.
2
Unit in San Diego, CA.4 On 16 August 2011, the appellant’s
command preferred a charge of possession of child pornography
against him. An Article 32, UCMJ, investigation was held in
October 2011 and on 4 November 2011, Commander, Naval Forces
Japan, referred the charge and specification to a general court-
martial. On 21 November 2011, the appellant was arraigned and
trial was set to commence in San Diego on 21 February 2012. In
January 2012, the Government, without objection from the
defense, requested a continuance until 5 March 2012, which the
court granted.
On 26 February 2012, while preparing for trial, the trial
counsel had a phone conversation with NCIS Cyber Agent AT during
which the trial counsel learned that Cyber Agent AT had earlier
completed forensic reports for evidence contained in Items D and
F. The trial counsel was previously unaware of these reports.
At the time, the investigative file had been forwarded from the
NCIS office in Sasebo to the San Diego office, so Cyber Agent AT
contacted Special Agent EP in San Diego to locate and provide
the reports to the trial counsel. Special Agent EP located what
he believed were the requested forensic reports and provided
them to the trial counsel, but what he actually provided was a
forensic report for Item D and a spreadsheet reflecting the
results of a virus scan performed on Item F. Based on her
review of previous forensic reports, the trial counsel believed
these reports were missing information and therefore she
questioned their accuracy and the forensic analysis done by
Cyber Agent AT. Due to her inexperience, the trial counsel did
not understand the reports and erroneously concluded that Cyber
Agent AT had committed an error in preparing them. The trial
counsel briefed her senior trial counsel about her concerns and
without further clarification from anyone at NCIS, trial counsel
contacted the CA’s staff judge advocate and recommended that the
CA withdraw and dismiss the charge so the evidence could be
forensically reanalyzed. The CA concurred and withdrew and
dismissed the charge and specification on 1 March 2012.
NCIS contractor ES conducted a second forensic analysis of
the seized media that was completed in May 2012 and an identical
charge and specification were re-preferred in June 2012. As it
turned out, there was no infirmity in the Government’s forensic
evidence. The trial counsel did not fully understand the
forensic evidence compiled by NCIS. A second Article 32
investigation was conducted and the charge was referred once
again to a general court-martial on 24 October 2012. The
4
Upon the appellant’s transfer to San Diego, CA, Region Legal Service Office
Southwest in San Diego assumed prosecutorial cognizance over the case.
3
appellant was arraigned on this charge and specification on 5
November 2012 and the contested trial commenced on 14 January
2013.
Additional facts necessary for the resolution of each AOE
are developed below.
Discussion
Improper Withdrawal
We begin our analysis with the appellant’s second
assignment of error in which he contends that the post-
arraignment withdrawal of the charge on 1 March 2012 and the re-
referral of the same charge on 24 October 2012 was improper
pursuant to RULE FOR COURTS-MARTIAL 604, MANUAL FOR COURTS-MARTIAL, UNITED
STATES (2012 ed.). R.C.M. 604(a) provides that a CA may, for any
reason, withdraw charges any time before findings are announced.
Under R.C.M. 604(b), charges which have been withdrawn may be
referred to another court-martial “unless withdrawal was for an
improper reason.” In other words, charges may be referred to
another court-martial if the withdrawal was for a proper reason.
In this context, the Court of Appeals for the Armed Forces has
interpreted “proper” to mean “a legitimate command reason that
does not ‘unfairly’ prejudice an accused in light of the
particular facts of a case.” United States v. Underwood, 50
M.J. 271, 276 (C.A.A.F. 1999) (citations omitted). Whether
charges are properly withdrawn and referred to another court-
martial are matters of law reviewed de novo. United States v.
Underwood, 47 M.J. 805, 809 (A.F.Ct.Crim.App. 1997), aff'd, 50
M.J. 271 (C.A.A.F. 1999).
At trial, the military judge concluded “[t]he government
did not have good cause, nor a proper reason, for withdrawing
and dismissing the prior, identical charge and specification . .
. .” Appellate Exhibit LXXXVII at 3. The military judge
reasoned:
When the convening authority made the decision to
withdraw and dismiss the charge and specification
against the accused on 1 March 2012, he was operating
under erroneous information. Upon the advice of the
detailed trial counsel, he stopped the case from going
to trial to afford the Government the opportunity to
address the perceived infirmities in the forensic
analysis, as the remedy was briefed to him as having
the potential to uncover exculpatory evidence. The
4
convening authority’s decision was entirely in good
faith and based on what he believed to be the need for
further investigation to ensure the charge and
specification were supported by the evidence. This
perceived need for further investigation, even though
the primary intent was to ensure the integrity and
sufficiency of the Government’s evidence prior to re-
referral, is a permissible reason to withdraw and
dismiss. United States v. Tippit, 65 M.J. 69
(C.A.A.F. 2007)
That said, factually the reason did not exist –
there was no infirmity in the forensic analysis. [The
trial counsel] simply did not fully appreciate the
nature and full extent of the forensic evidence
compiled by NCIS. The late transfer of evidence from
Japan to San Diego, so close to the start of the
original trial did not give [trial counsel] enough
time to verify and familiarize herself with it. . . .
Consequently, when the convening authority made the
decision to withdraw and dismiss the charge and
specification, the articulated reason did not exist.
Requiring all reports, all evidence, and the
appointment of a San Diego NCIS cyber agent liaison
upon LT [D] being detailed as trial counsel would
likely have prevented the situation the Government
found itself in on 29 February 2012. Failure to do so
is a reflection of the situational level of competence
attributable to the Government’s pretrial preparation.
Such a failure to appreciate the seriousness of or
extent of the charge offense is not a proper reason
for withdrawal. United States v. Mann, 32 M.J. 883
(N.M.C.M.R. 1991).
Id. at 20-21.
As a remedial measure, the military judge prohibited the
Government from introducing evidence obtained or derived from
evidence Items D and F, reasoning that excluding such evidence
placed the Government in the same position it was in when the
charge and specification were withdrawn and dismissed on 1 March
2012. Given this remedy, the military judge concluded the
appellant was not unfairly prejudiced and therefore the CA was
not barred from re-referring the charge and specification. In
assessing for prejudice the military judge stated:
5
The accused, through counsel, was complicit in the
near seven (7) month delay in bringing the charge and
specification back to court. His counsel engaged in
extensive plea negotiations on his behalf, took
advantage of the second opportunity to explore the
Government’s case at a UCMJ Article 32 hearing, of
which the defense requested additional time to
prepare, and despite being aware of the looming issue
of whether the convening authority’s 1 March 2012
withdrawal and dismissal was for good cause, the
accused did not file a motion seeking relief at
arraignment, instead opting to request additional time
to brief the matter.
While the Government may gain an advantage by
having time to gain the appreciation and understanding
of all forensic evidence compiled by NCIS, this
advantage is easily remedied by this court. The
situation on 1 March 2012 was the Government was aware
of and prepared to present evidence of suspected CP
found on Item A seized from the accused, a personal
laptop computer. Applying a remedy that places the
Government in that same position, the accused has not
lost access to any evidence, he has not lost the
ability to call a relevant and necessary witness, nor
has he lost the benefit of any prior pretrial ruling
of this court. To the contrary, he benefited from a
second adversarial pretrial hearing, he will benefit
from a second forensic review of Item A by a different
Government funded defense expert consultant, and he
will receive additional Government funded expert
consultation from a forensic psychologist to ensure
the assistance is current. The delay from 1 March
2012 to trial caused no prejudice to the accused.
Accordingly, no relief is required on this ground.
United States v. Koke, 32 M.J. 867 (N.M.C.M.R. 1991),
aff’d, 34 M.J. 313 (C.M.A. 1992).
Id. at 23-24.
Assuming without deciding that the military judge was
correct in determining the CA withdrew the charge and
specification for an improper reason, we agree that this action
ultimately did not prejudice the appellant. Our review of the
record of trial fails to reveal any indication that the
Government was acting in bad faith or was attempting to
interfere with the appellant’s exercise of any rights. The
6
identical charge and specification were referred to the same
level court-martial. The military judge’s remedial measures
prevented the Government from offering evidence of additional
child pornography found on the appellant’s media devices that
the Government had not intended to offer at the initial trial.
Finally, there is no evidence that the appellant’s ability to
present an appropriate defense was prejudiced. We specifically
reject the appellant’s assertion that he was prejudiced by the
Government’s ability to further perfect its case against him.
The appellant points to no applicable legal authority to support
this theory of prejudice and it is not the type referenced by
the case law. See Underwood 50 M.J. at 276; Koke 34 M.J. at
315; United States v. Blaylock, 15 M.J. 190, 195 (C.M.A. 1983).
Speedy Trial
The appellant also asserts that the military judge erred in
failing to grant a defense motion to dismiss for denial of his
right to a speedy trial, pursuant to the Fifth and Sixth
Amendments. We agree with the military judge that the appellant
was not denied his right to a speedy trial.
The United States Constitution guarantees all persons the
right to a "speedy and public trial." U.S. CONST. amend. VI.
Additionally, the Due Process Clause of the Fifth Amendment
ensures accused servicemembers the right to a speedy trial. A
military judge's conclusion of whether an accused received a
speedy trial is a legal question that is reviewed de novo.
United States v. Cooper, 58 M.J. 54, 57 (C.A.A.F. 2003); United
States v. Doty, 51 M.J. 464, 465 (C.A.A.F. 1999). “The military
judge's findings of fact are given ‘substantial deference and
will be reversed only for clear error.’” Doty, 51 M.J. at 465
(citation and internal quotation marks omitted). Having
examined the record of trial, including the extensively
litigated pretrial motion, we hold that the military judge's
thorough findings of fact are fully supported by the record. AE
LXXXVII at 8-18.
In determining whether the speedy trial requirements of the
Sixth Amendment are satisfied, we are required to consider: (1)
the length of the delay; (2) the reasons for the delay; (3) the
assertion of the right to speedy trial; and (4) the existence of
prejudice. See United States v. Birge, 52 M.J. 209, 212
(C.A.A.F. 1999) (quoting Barker v. Wingo, 407 U.S. 514, 530
(1972)).
7
To calculate the length of delay we must first determine
when the appellant’s right to a speedy trial under the Sixth
Amendment was triggered. We view this as a question of law
subject to de novo review. Sixth Amendment protections are
triggered upon preferral of charges or the imposition of pre-
trial restraint. See United States v. Vogan, 35 M.J. 32, 33
(C.M.A. 1992). Sixth Amendment protection does not apply to
pre-accusation delays where there has been no restraint. United
States v. Marion, 404 U.S. 307, 313 (1971); United States v.
Reed, 41 M.J. 449, 451 (C.A.A.F. 1995). We reject the
appellant’s assertion that his involuntary extension on active
duty triggered Sixth Amendment speedy trial protections. See
United States v. Bush, 49 C.M.R. 97, 99 (N.C.M.R. 1974) (holding
that “[l]egal hold does not equate to an arrest or restricted
status”) (citing United States v. Clay, 48 C.M.R. 334 (N.C.M.R.
1973)).
At trial the military judge, without explanation, found the
appellant’s Sixth Amendment speedy trial right was triggered
when the original charge was withdrawn and dismissed on 1 March
2012. AE LXXXVII at 25. Under the unique circumstances of this
case, there is support for the position that the appellant’s
Sixth Amendment speedy trial right was triggered by the initial
preferral of the charge on 16 August 2011. Although this charge
was withdrawn and dismissed, the identical charge was again re-
preferred on 29 June 2012 and the record clearly demonstrates
that all parties anticipated the charge would be brought back
once a second forensic examination of the evidence was
completed. Plea negotiations were conducted and the Government
moved forward with plans to schedule an Article 32, UCMJ,
hearing during the intervening period between withdrawal and the
second preferral. Id. at 16. Thus, based on the unique facts
of this case, we will presume the period of Government
accountability began with the initial preferral date of 16
August 2011, despite the fact that the appellant ultimately went
to trial on a charge preferred on 29 June 2012. See United
States v. Grom, 21 M.J. 53, 56 (C.M.A. 1985) (citing United
States v. Avalos, 541 F.2d 1100, 1108-09 (5th Cir. 1976)).
1. Length of the Delay
The military judge considered the delay at issue to be from
1 March 2012 to the 5 November 2012 arraignment and concluded
this factor weighed slightly in favor of the appellant. AE
LXXXVII at 25-26. As discussed supra, we presume the delay at
issue to be from 16 August 2011 to 5 November 2012. Given this
nearly sixteen-month delay, we conclude this factor weighs
8
squarely in favor of the appellant and thus, are satisfied that
the case merits our balancing of the remaining Barker factors.
2. Reasons for the Delay
The facts surrounding the time from original preferral on
16 August 2011 until the CA’s withdrawal and dismissal on 1
March 2012 are discussed supra. Concerning the delay from 1
March 2012 to 5 November 2012, the military judge stated:
The Government’s actions are not a model of
expediency. Despite being aware of the impending
issue on whether the 1 March 2012 withdrawal and
dismissal was valid, the Government proceeded in the
normal pretrial course in getting the case back to
trial. Content to rest on logistical difficulties
perpetuated by a geographical separation, all of its
own doing, the Government made no effort to expedite
the second pretrial process.
This delay was compounded by good faith plea
negotiations and what this court reasonably infers to
be a robust discussion on whether the Government would
agree to a conditional plea of any kind. Once plea
negotiations broke down, the requisite Article 32
hearing was scheduled, delayed to accommodate a
defense request, and held on 8 September 2012. Upon
completion of the Article 32 report on 17 September
2012, the Government took over a month to refer the
charge and specification, again taking no steps to
expedite the review process, instead relying on the
aforementioned logistical and geographical
difficulties of its own doing.
Despite the defense’s vehement objections to what
the defense contends amounts to Government
indifference regarding the post 1 March 2012 delay,
the defense was not prepared to proceed to trial at
the 5 November 2012 arraignment. Rather, the defense
asked for a 10 December 2012 trial date. As the well
developed record shows, given the negotiations and
posturing that had occurred in the trial ab initio,
this court lacked confidence the parties would be
prepared to go to trial by 10 December 2012. Given
the upcoming holiday season, and the need to afford
the parties the flexibility to resolve or
alternatively seek court intervention on any new or
9
remaining issues, this court ordered a 14 January 2013
trial date. This delay deemed necessary and prudent
by the court, is not attributable to the Government.
AE LXXXVII at 25-26 (footnote omitted).
The military judge concluded this factor weighed slightly
in favor of the appellant. Even considering a lengthier period
of delay from 16 August 2011 to 5 November 2012, we concur with
the military judge’s conclusion that this factor slightly favors
the appellant. The Article 32, UCMJ, hearing for the original
preferred charge was held in early October 2011. The appellant
was arraigned on 21 November 2011 and court set 21-24 February
2012 for a contested members trial. The parties mutually agreed
to the trial dates. Due to witness availability issues, the
Government moved to continue the trial date until 5 March 2012
and the defense did not oppose the Government request. The
Government was proceeding toward trial in a reasonable fashion
when the TC, in good faith, concluded the charge and
specification should be withdrawn and dismissed based on a
mistaken evidentiary infirmity. She was supported by her
supervising counsel and made the recommendation to the CA. As
discussed supra, the CA was acting entirely in good faith when
he followed that recommendation.
3. Demand for Speedy Trial
Through the entire course of the investigation and court-
martial of the case from November 2010 until January 2013, the
appellant made a single demand for speedy trial on 8 September
2012, following the second Article 32, UCMJ, hearing. The
military judge found this “request was primarily, if not
totally, tactical, submitted only after plea negotiations broke
down and the case was headed back to trial.” Id. at 27. The
military judge found this factor weighed strongly in favor of
the Government. We agree.
4. Prejudice to the Appellant
As to the fourth factor, the appellant points to no
specific prejudice in his ability to present his defense or in
his trial defense counsel’s ability to prepare. Rather, he
contends that Government used the delay “to perfect its case”
against him and argues, “[b]ecause of the delay, the Government
gained a tactical advantage and was able to bolster the
credibility of its forensic testing.” Appellant’s Brief of 12
Nov 2013 at 18. The Government’s ability to prepare or improve
10
its case is not the sort of prejudice contemplated by Barker's
fourth factor. “That prejudice is concerned with impediments to
the ability of the defense to make its own case (e.g., if
defense witnesses are made unavailable due to the government's
delay); the opportunity for the prosecution to prepare for trial
does not, on its own, amount to prejudice to the defense.”
United States v. Abad, 514 F.3d 271 (2d Cir. 2008) (citing
Barker, 407 U.S. at 532 (considering, as one of several kinds of
possible prejudice to the defense, “the inability of a defendant
adequately to prepare his case" that might arise "[i]f witnesses
die or disappear during a delay,” or “if defense witnesses are
unable to recall accurately events of the distant past”).
Additionally, while the appellant was held on active duty past
his expected retirement date, he was never in any form of
pretrial restraint, remained in a full pay status, and at all
times was afforded the rights and responsibilities of a first
class petty officer. AE LXXXVII at 28. Finally, the military
judge’s remedial measures in prohibiting the Government from
introducing additional evidence derived from evidence exploited
from Items D and F further convinces us that the appellant was
not prejudiced by the delay.
Accordingly, we find no violation of the Sixth Amendment in
applying the Barker and Birge factors.
Turning to the appellant's Fifth Amendment claim regarding
pre-preferral delay, we note that to prevail he must demonstrate
“egregious or intentional tactical delay and actual prejudice.”
United States v. Reed, 41 M.J. 449, 452 (C.A.A.F. 1995). Here,
the appellant has failed to meet either requirement. There has
been no showing of egregious delay or bad faith on the
Government's part. There is absolutely no evidence of record to
suggest that the Government delayed in bringing charges against
the appellant to gain some unspecified tactical advantage or to
impair the appellant from presenting an effective defense. See
Vogan, 35 M.J. at 34. Given the complexity and the logistical
challenges of this investigation, we do not find the pre-
preferral delay to be unduly excessive.
Admission of Evidence in Aggravation
In his third AOE, the appellant alleges the military judge
erred in admitting victim impact evidence because it did not
directly relate to his offense or, in the alternative, that its
probative value was outweighed by the danger of unfair
prejudice. During the presentencing proceedings, the trial
defense counsel raised a motion in limine objecting to the
11
testimony of three case agents intending to offer victim impact
evidence.5 The military judge denied the motion and noted
specific Congressional findings made in connection with 18
U.S.C. § 3509 that the “effect of the dissemination of these
videos on the minors depicted in the videos is evidence directly
related to or resulting from knowing possession of the videos.”
Record at 959. Additionally, the military judge issued the
following limiting instruction prior to the witness testimony:
I expect the Government to present further witness
testimony this morning in what we call aggravation. I
gave you preliminary instructions about this at the
beginning of the trial. I expect the testimony will
be related to individuals depicted in Videos 1, 2, 3
and 4 of Prosecution Exhibit 27. I am allowing the
Government to present this evidence for a very
specific purpose, and that is what effect, if any, the
dissemination of those videos, which includes knowing
possession of those videos, had on these individuals.
The limitation is placed to make sure you understand
that you are not to consider any evidence of the
actual production of the video or any offenses you
believe may have been committed against the
individuals depicted at the time the video was made
against (the appellant). I will allow you to hear the
evidence. Its purpose is for its tendency, if any, to
show what effects the dissemination of the videos had
on the individuals depicted in the videos. You will
not consider the evidence for any other purpose.
Id. at 962. The members all acknowledged and understood the
military judge’s instruction. Id.
We review a military judge's decision to admit or exclude
sentencing evidence for an abuse of discretion. United States v.
Stephens, 67 M.J. 233, 235 (C.A.A.F. 2009). When the military
judge conducts a proper balancing test, the ruling will not be
overturned absent a clear abuse of discretion. Id. The
prosecution may present evidence of aggravating circumstances
“directly relating to or resulting from the offenses of which
the accused has been found guilty” to include “social,
psychological, and medical impact on or cost to any person or
entity who was the victim of an offense committed by the
accused.” R.C.M. 1001(b)(4). The impact on children who are
used in the child pornography business is sufficiently directly
5
The Government proffered that the witnesses would testify as to the impact
on the victims from the dissemination of the videos of their abuse.
12
related to the offense of possessing child pornography to assist
the sentencing authority. See United States v. Anderson, 60
M.J. 548 (A.F.Ct.Crim.App. 2004). The testimony offered by the
prosecution addressed that impact, and the military judge
thoroughly instructed the members on the proper consideration of
this evidence. Under the circumstances of this case, we find no
abuse of discretion in admitting the exhibit as relevant
aggravating evidence of victim impact.
Failure to Comment on Legal Error in SJAR
Although not assigned as error, or specified as an issue,
the trial defense counsel arguably alleged legal error in his 26
April 2013 request for clemency. In that request he asserted
that the appellant’s speedy trial rights had been violated and
that the original trial had been withdrawn for an improper
purpose. It is not entirely clear whether the trial defense
counsel was alleging legal error or simply referencing these
issues in support of his request that the CA reduce the
appellant’s confinement to time served.6 We found no evidence of
record that the staff judge advocate (SJA) responded to the
defense clemency submission. However, while the SJA is not
required to examine the record for legal error, “he must respond
to any suggestion of legal error that is raised by the accused
and must state whether, in his opinion, corrective action is
required.” United States v. Diaz, 40 M.J. 335, 341 (C.M.A.
1994). In this case we find the clemency submission, at a
minimum, suggested legal error and therefore R.C.M. 1106(d)(4)
applies.
“R.C.M. 1106(d)(4) requires that ‘the staff judge advocate
. . . state’ in his recommendation ‘whether, in’ his ‘opinion,
corrective action on the findings or sentence should be taken
when an allegation of legal error is raised in matters submitted
6
Referencing the appellant’s right to a speedy trial, the clemency petition
states, “[d]espite being on the eve of his transfer to the Fleet Retired
Reserve, having served roughly 20 years of service in the United States Navy,
he [the appellant] was placed into a legal hold status while his case was
sorted out. He neither could have expected, nor should he or any Sailor have
had to endure, what would come next. Due to no fault of his own, the
Government’s legal process kept him in limbo status, awaiting his fate for
the next two years and two months.” Clemency petition of 26 Apr 13 at 1.
Additionally, the clemency petition alleged the appellant was prejudiced by
the delay following the improper withdrawal because the Government was able
to perfect its case against him. Despite these assertions, the trial defense
counsel did not assert these amounted to legal errors requiring dismissal,
and merely asked the CA to reduce the appellant’s confinement. At the time
of the clemency submission, the appellant had served ninety-nine days of his
eighteen months of adjudged confinement.
13
under R.C.M. 1105 or when otherwise deemed appropriate by the
staff judge advocate.’” United States v. Griffin, 201300227,
2014 CCA LEXIS 313 at *9-10 (N.M.Ct.Crim.App. 20 May 2014)
(quoting United States v. Hill, 27 M.J. 293, 295 (C.M.A. 1988)).
“An analysis or rationale for an SJA’s statements concerning
legal error is not required and a response may merely consist of
either a statement of agreement or disagreement with any legal
error raised by the appellant. R.C.M. 1106(d)(4).” The Manual
contemplates that errors may be raised by the accused for
consideration by a CA, even though the recommendation of the SJA
has already been served on the accused. Hill, 27 M.J. at 295.”
Id. at *10.
“In most instances, failure of the SJA to prepare a
recommendation with the contents required by R.C.M. 1106(d)(4)
will be prejudicial and will require remand of the record for
preparation of a suitable recommendation for the CA.” Id.
(citing Hill, 27 M.J. at 296). However, if the Court of
Criminal Appeals is convinced that under the particular
circumstances, a properly prepared recommendation would have no
effect on the CA, remand to the CA is unnecessary. Id. at *10-
11. “Thus, a Court of [Criminal Appeals] is free to affirm when
a defense allegation of legal error would not foreseeably have
led to a favorable recommendation by the staff judge advocate or
to corrective action by the convening authority.” Hill, 27 M.J.
at 297.
In this case, the potential speedy trial and improper
withdrawal issues were evident prior to preferral of the charge.
The issues were fully litigated at trial and addressed by the
military judge in his comprehensive ruling captured in a thirty-
three page appellate exhibit. See AE LXXXVII. Moreover, we
concluded the appellant was not deprived of his Constitutional
right to a speedy trial and was not prejudiced by withdrawal of
the charge, assuming such withdrawal was improper. In sum, we
find the allegations of legal error in the appellant’s clemency
submission would not foreseeably have led to a favorable
recommendation by the SJA or to corrective action by the CA.
Therefore, the appellant was not prejudiced by the SJA’s failure
to submit an addendum or to otherwise comment on the allegations
of error. Because the appellant was not prejudiced, returning
this court-martial to the CA is not necessary.
Error in the CA Action
Although not assigned as error, the CA’s action contains
errata in misidentifying the appellant’s plea to the Charge and
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Specification as “guilty” where a “not guilty” plea was in fact
entered. We find the appellant was not prejudiced from the
error, but is nonetheless entitled to a record that correctly
reflects the results of the court-martial proceedings. See
United States v. Crumpley, 49 M.J. 538, 539 (N.M.Ct.Crim.App.
1998). We order the necessary corrective action in our decretal
paragraph.
Remaining Assignment of Error
Having carefully reviewed the record and the pleadings, we
find the remaining summary assignment of error to be without
merit. United States v. Clifton, 35 M.J. 79, 81-82 (C.M.A.
1992).
Conclusion
The supplemental court-martial order shall correctly
reflect the appellant’s plea of not guilty to the Charge and
specification. The findings and the approved sentence are
affirmed.
Chief Judge MITCHELL and Judge JAMISON concur.
For the Court
R.H. TROIDL
Clerk of Court
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