United States v. Cary

UNITED STATES, Appellee

v.

John B. CARY Jr., Airman First Class
U.S. Air Force, Appellant

No. 05-0403
Crim. App. No. S30146

United States Court of Appeals for the Armed Forces

Argued October 20, 2005

Decided January 12, 2006

EFFRON, J., delivered the opinion of the Court, in which GIERKE,
C.J., and BAKER and ERDMANN, JJ., joined. CRAWFORD, J., filed a
separate opinion, concurring in the result.

Counsel

For Appellant: Major Sandra K. Whittington (argued).

For Appellee: Major Lane A. Thurgood (argued); Lieutenant
Colonel Robert V. Combs and Lieutenant Colonel Gary F. Spencer
(on brief); Major Kevin P. Stiens.

Military Judge: David F. Brash

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Cary, No. 05-0403/AF

Judge EFFRON delivered the opinion of the Court.

At a special court-martial composed of a military judge

sitting alone, Appellant was convicted, pursuant to his pleas,

of dereliction of duty (two specifications), carnal knowledge,

and obstruction of justice, in violation of Articles 92, 120,

and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§

892, 920, 934 (2000). He was sentenced to a bad-conduct

discharge, confinement for six months, forfeiture of $500.00 pay

per month for six months, and reduction to the lowest enlisted

grade. The convening authority approved these results, and the

United States Air Force Court of Criminal Appeals affirmed the

findings and the sentence. United States v. Cary, 2005 CCA

LEXIS 73; 2005 WL 486140 (A.F. Ct. Crim. App. Feb. 8, 2005).

On Appellant’s petition, we granted review of the following

issues:

I. WHETHER PRESENTING EVIDENCE TO THE MILITARY
JUDGE THAT APPELLANT HAD PREVIOUSLY RECEIVED
NONJUDICIAL PUNISHMENT UNDER ARTICLE 15,
UNIFORM CODE OF MILITARY JUSTICE, WAS PLAIN
ERROR WHEN APPELLANT HAD NOT IN FACT EVER
RECEIVED NONJUDICIAL PUNISHMENT UNDER
ARTICLE 15.

II. WHETHER THE TRIAL DEFENSE COUNSEL PROVIDED
INEFFECTIVE ASSISTANCE OF COUNSEL IN
SENTENCING AND POST-TRIAL PROCESSING BY
FAILING TO OBJECT TO THE REFERENCE TO
NONJUDICIAL PUNISHMENT ON THE PERSONAL DATA
SHEET.

For the reasons set forth below, we affirm.

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I. BACKGROUND

Appellant was convicted of offenses pertaining to sexual

activity with minor female dependents. Two of the offenses

involved violating a base regulation against having under age

dependents in his dormitory room; one offense pertained to

sexual intercourse with one of the dependents, who was under the

age of sixteen; and the third offense concerned obstruction of

justice by asking one of the dependents to lie to investigators.

During the sentencing proceeding in this judge-alone trial,

trial counsel provided the defense with a document that the

prosecution intended to introduce, a personal data sheet

summarizing Appellant’s service. The document was admitted

without objection. In the midst of data summarizing Appellant’s

personal records, the document contained the following entry:

“NO. OF PREVIOUS ARTICLE 15 ACTIONS: 1.” See Article 15, UCMJ,

10 U.S.C. § 815 (2000) (nonjudicial punishment). The entry did

not describe the basis for or result of any nonjudicial

punishment proceeding. Trial counsel specifically introduced

two administrative records reflecting negatively on Appellant,

but did not introduce any record of a nonjudicial punishment

proceeding, nor did trial counsel refer to nonjudicial

punishment in his sentencing argument or otherwise. The

military judge made no mention of nonjudicial punishment. The

reference to Article 15 on the personal data sheet appears to

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have been a clerical error, as neither party contends that

Appellant ever received nonjudicial punishment.

Following the trial, the convening authority, upon

recommendation of the staff judge advocate, approved the

sentence as adjudged. See Article 60, UCMJ, 10 U.S.C. § 860

(2000). Although the staff judge advocate’s recommendation

referred to the attached personal data sheet, the recommendation

described Appellant’s prior service as “satisfactory” and did

not mention nonjudicial punishment. Prior to consideration by

the convening authority, the staff judge advocate’s

recommendation was served on defense counsel, who offered no

objection.

II. DISCUSSION

In the absence of objection in the circumstances of this

case, we proceed under the “plain error” standard set forth in

United States v. Powell, 49 M.J. 460, 463, 465 (C.A.A.F. 1998).

We must determine whether there was error, whether it was plain,

and whether it materially prejudiced a substantial right of the

accused. See United States v. Finster, 51 M.J. 185, 187

(C.A.A.F. 1999).

To place this matter in context, we note that a commander

has considerable discretion in deciding whether an offense is a

minor offense subject to punishment under Article 15. See

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Manual for Courts-Martial, United States pt. V, para. 1.e (2005

ed.). Nonjudicial punishment can be used to cover a wide

variety of offenses, ranging from an incidental infraction

during initial training to a significant dereliction by a member

of a command’s permanent party. See generally id. para. 1.d. A

data entry listing the numeral “1” after “Article 15” -- without

any reference to the nature of the offense or the type of

punishment -- is not particularly informative. Military judges,

staff judge advocates, and convening authorities know this, and

it is highly unlikely that an official responsible for

adjudicating or approving a sentence would focus on the term

“Article 15” without seeking further information about the

significance of the entry.

In that regard, it is noteworthy that trial counsel made no

mention of the nonjudicial punishment, even though he

specifically introduced records of less serious administrative

actions. The staff judge advocate, who likewise did not refer

to nonjudicial punishment, instead described Appellant’s service

as satisfactory. In that context, although the error of

introducing the personnel data sheet that contained the numeral

“1” after “Article 15” may have been “plain,” Appellant has not

demonstrated that the military judge or the convening authority

considered this entry.

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In the present case, Appellant was charged with offenses

for which he could have received the jurisdictional maximum at

his special court-martial of one year of confinement. The

adjudged and approved confinement was considerably less -- 180

days. In that context, the absence of any reliance on the

erroneous information by the prosecution or the staff judge

advocate underscores the absence of any prejudice under the

plain error test. See Article 59(a), UCMJ, 10 U.S.C. § 859(a)

(2000).

With respect to Appellant’s claim of ineffective assistance

of counsel, an even higher standard of prejudice applies. See

Strickland v. Washington, 466 U.S. 668, 687 (1984); United

States v. Scott, 24 M.J. 186, 188 (C.M.A. 1987). In this guilty

plea case, where the primary concern of the client would be on

the sentence, defense counsel should have given careful

attention to the evidence that would be introduced during

sentencing. Assuming counsel was ineffective in not objecting

to the data sheet with the incorrect entry, the defense must

show that absent such error, there is a reasonable probability

of a different result. United States v. Polk, 32 M.J. 150, 153

(C.M.A. 1991). In view of our conclusion on the issue of

prejudice under the plain error analysis, any deficiency here

does not establish prejudice with respect to the issue of

ineffective assistance of counsel.

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III. CONCLUSION

The decision of the United States Air Force Court of

Criminal Appeals is affirmed.

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CRAWFORD, Judge (concurring in the result):

The plain error issue is not unique to military practice.

The Rules for Courts-Martial (R.C.M.) are modeled after the

Federal Rules of Criminal Procedure, and accordingly, we should

follow the guidance provided by our superior court in applying

or interpreting our rules. Specifically, we should apply

Supreme Court precedent in determining whether we should correct

an error not raised at trial. While I initially agreed with the

“plain error” standard set forth in United States v. Powell, 49

M.J. 460 (C.A.A.F. 1998), upon reflection, I have recognized my

mistake and have since followed Supreme Court precedent. See,

e.g., United States v. Kho, 54 M.J. 63, 65-66 (C.A.A.F.

2000)(Crawford, C.J., concurring in the result). In Kho, I

stated:

I see no difference between an error that “materially
prejudices . . . substantial rights” under Article
59(a), Uniform Code of Military Justice, 10 U.S.C. §
859(a), or an error that “affects substantial rights”
under Fed. R. Crim. P. 52(b). As the Court in Johnson
[v. United States, 520 U.S. 461, 466-67 (1997)]
indicated, an appellate court may “notice a forfeited
error.” A finding or sentence “may not be held
incorrect” “unless the error materially prejudices the
substantial rights of the accused.” Thus, both prong
four of Johnson and Article 59(a) instruct appellate
courts as to when they may set aside the findings and
sentence. The appellate court then analyzes whether
the error was harmless. That is, it is possible to
have an error that “materially prejudices . . .
substantial rights,” such as a constitutional
violation, i.e., a confession obtained in violation of
the Fifth Amendment, but still affirm the conviction.
I view the application of these four prongs to be the
United States v. Cary, No. 05-0403/AF

same, whether employed by a court of discretionary
appeal or a court with mandatory review.

Id. at 66.

Absent articulation of a legitimate military necessity or

distinction, or a legislative or executive mandate to the

contrary, this Court has a duty to follow Supreme Court

precedent. Sadly, this is not an isolated incident where this

Court has departed from the settled law of the Supreme Court

when examining a constitutional right,1 or when interpreting the

1
See, e.g., United States v. Kreutzer, 61 M.J. 293 (C.A.A.F.
2005)(failed to follow federal precedent and instead held
constitutional right to a mitigation specialist); United States
v. Roberts, 59 M.J. 323 (C.A.A.F. 2005)(refused to follow
Supreme Court’s standard of review for wrongful nondisclosure
set out in cases such as Strickler v. Greene, 527 U.S. 263
(1999)); United States v. Mapes, 59 M.J. 60 (C.A.A.F.
2003)(failed to follow independent source rule set forth in
Silverthorne Lumber Co., Inc. v. United States, 251 U.S. 385
(1920)); United States v. Walters, 58 M.J. 391 (C.A.A.F.
2003)(failed to allow a waiver of double jeopardy claim as
provided in United States v. Tateo, 377 U.S. 463 (1964)); United
States v. Brennan, 58 M.J. 351 (C.A.A.F. 2003)(failed to require
the showing of “infliction of punishment [as] a deliberate act
intended to chastise or deter,” indicated in Wilson v. Seiter,
501 U.S. 294, 300 (1991)); United States v. Redlinski, 58 M.J.
117 (C.A.A.F. 2003)(failed to follow Henderson v. Morgan, 426
U.S. 637 (1976), and Marshall v. Lonberger, 459 U.S. 422
(1983)); United States v. Quiroz, 55 M.J. 334 (C.A.A.F.
2001)(refused to follow Supreme Court practice on double
jeopardy and multiple punishment set forth in Blockburger v.
United States, 284 U.S. 299 (1932)); United States v. Kelly, 45
M.J. 259 (C.A.A.F. 1996)(failed to follow Supreme Court
teachings on the right to counsel articulated in Nichols v.
United States, 511 U.S. 738 (1994), and Middendorf v. Henry, 425
U.S. 25 (1976)); United States v. Manuel, 43 M.J. 282 (C.A.A.F.
1995)(failed to follow California v. Trombetta, 467 U.S. 479
(1984), and Arizona v. Youngblood, 488 U.S. 51 (1988), with
regard to the destruction of evidence); United States v.

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same or a similar statute.2 As I recently pointed out in United

States v. Martinelli, 62 M.J. 52 (C.A.A.F. 2005), the

“specialized society” that we serve “is populated not only by

the uniformed men and women who bravely serve our Nation, but by

their spouses and children, all of whom have every right to

expect a measured and rational application of law by trial and

appellate courts.” Id. at 86-87 (Crawford, J., dissenting).

Failure to follow Supreme Court precedent not only places the

jurisprudence of this Court outside the judicial mainstream, but

also undermines that specialized society’s respect for, and

confidence in, the military justice system.

This case should be affirmed because Appellant failed to

establish that there was a plain error that affected his

substantial rights. Furthermore, Appellant has failed to

establish the error “seriously affect[ed] the fairness,

integrity, or public reputation of [the] judicial proceedings”

Kaliski, 37 M.J. 105 (C.M.A. 1993)(failed to follow independent
source principle set forth in Silverthorne Lumber Co., Inc.).
In the past, this Court has refused to follow Purkett v. Elem,
514 U.S. 765 (1995), with respect to peremptory challenges.
See, e.g., United States v. Hurn, 55 M.J. 446 (C.A.A.F. 2001);
United States v. Chaney, 53 M.J. 383 (C.A.A.F. 2000).
2
See, e.g., United States v. Perron, 58 M.J. 78 (C.A.A.F. 2003)
(failed to follow Supreme Court precedent regarding specific
performance of pretrial agreements, such as Santobello v. New
York, 404 U.S. 257 (1971)); Cf. United States v. Mizgala, 61
M.J. 122 (C.A.A.F. 2005)(contrasting Article 10, Uniform Code of
Military Justice, 10 U.S.C. § 810 (2000), the Speedy Trial Act
of 1974, Pub. L. No. 93-619, 88 Stat. 2076, and R.C.M. 707).

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in his case. Johnson, 520 U.S. at 467 (quotation marks and

citations omitted).

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