                        UNITED STATES, Appellee

                                     v.

                      Dustin A. STEFAN, Private
                         U.S. Army, Appellant

                               No. 10-0349
                        Crim. App. No. 20081097

       United States Court of Appeals for the Armed Forces

                        Argued November 9, 2010

                      Decided December 29, 2010

STUCKY, J., delivered the opinion of the Court, in which EFFRON,
C.J., and BAKER, ERDMANN, and RYAN, JJ., joined.

                                  Counsel


For Appellant: Captain Jess B. Roberts (argued); Colonel Mark
Tellitocci, Lieutenant Colonel Jonathan F. Potter, and Major
Laura R. Kesler (on brief); Lieutenant Colonel Matthew M.
Miller, Major Grace M. Gallagher, and Major Timothy W. Thomas.

For Appellee: Captain Benjamin M. Owens-Filice (argued); Major
Christopher B. Burgess and Major LaJohnne A. White (on brief);
Lieutenant Colonel Martha L. Foss.

Military Judge:    Gary J. Brockington


        THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Stefan, No. 10-0349/AR


     Judge STUCKY delivered the opinion of the Court.

     We granted review to determine whether the chief of

military justice was disqualified from preparing the addendum to

the staff judge advocate’s recommendation (SJAR) because, before

trial, she had caused the charges to be served on the accused.

We hold that she was disqualified under Article 6(c), Uniform

Code of Military Justice (UCMJ), 10 U.S.C. § 806(c) (2006), and

Rule for Courts-Martial (R.C.M.) 1106(b), but Appellant was not

prejudiced.1

                               I.

                               A.

     On August 20, 2008, Appellant damaged a door and some

ceiling tiles, among other things, to obtain keys to the

barracks rooms from the First Sergeant’s office.   With the keys,

Appellant entered seven rooms and stole numerous personal items

from fellow soldiers, including iPods, game systems, DVD

players, laptop computers, and other property.   While being

questioned by military police about the thefts, Appellant was

ordered to stand fast, but he disobeyed that order and left.

This was not the first time Appellant had been in trouble with

1
  The Government has submitted a motion for this Court to
consider an affidavit from the disqualified staff judge
advocate. “The Court will normally not consider any facts
outside of the record established at the trial and the Court of
Criminal Appeals,” unless good cause is shown. C.A.A.F. R.



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United States v. Stefan, No. 10-0349/AR


military authorities.   Before the barracks larceny, Appellant

had possessed marijuana once and missed morning formations twice

-- once to be with a woman in his room, contrary to orders.

     Based on the above conduct, Appellant pled guilty at a

general court-martial to failure to go to his appointed place of

duty (two specifications), disobeying a noncommissioned officer

(NCO), failure to obey an order, damaging military property,

possessing marijuana, larceny (seven specifications), and

burglary, in violation of Articles 86, 91, 92, 108, 112a, 121,

129, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 886,

891, 892, 908, 912a, 921, 929 (2006).   The military judge

accepted Appellant’s pleas and sentenced him to a dishonorable

discharge, confinement for twenty-two months, and forfeiture of

all pay and allowances.

                                B.

     After trial, Major Van Eck drafted and signed the SJAR as

the acting SJA.   He recommended that the convening authority

approve Appellant’s sentence without clemency.   Without comment

on the SJAR, Appellant provided post-trial matters pursuant to

R.C.M. 1105 and R.C.M. 1106.   In his clemency submission,

Appellant’s only request was to reduce his dishonorable

discharge to a bad-conduct discharge.



30A(a).   Good cause has not been shown; therefore, the motion is
denied.

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United States v. Stefan, No. 10-0349/AR


     Following this submission, Major Wright, the chief of

military justice, acting as the SJA, signed the addendum to the

SJAR, in which she stated that “clemency [was] not warranted.”

On June 2, 2009, the convening authority reduced the time of

confinement to eighteen months in accordance with the pretrial

agreement, but otherwise approved the adjudged sentence.

Appellant submitted the case on its merits to the United States

Army Court of Criminal Appeals (CCA), which affirmed in a

summary disposition.   United States v. Stefan, No. 20081097,

2010 CCA LEXIS 12, at *1 (A. Ct. Crim. App. Jan. 29, 2010)

(unpublished).

     Judge Ham dissented, arguing that Article 6(c) disqualified

Major Wright from preparing the addendum to the SJAR because of

her position as chief of military justice and because she had

acted as trial counsel in Appellant’s case.   Id. at *10-*11.

Judge Ham reached this conclusion because, inter alia, Major

Wright had signed the original and additional charge sheets,

indicating that she had caused the charges to be served on

Appellant as trial counsel.   Id. at *18.

                                II.

                                A.

     Article 6(c) provides that “[n]o person who has acted as

member, military judge, trial counsel, assistant trial counsel,

defense counsel, assistant defense counsel, or investigating


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United States v. Stefan, No. 10-0349/AR


officer in any case may later act as a staff judge advocate or

legal officer to any reviewing authority upon the same case.”

R.C.M. 1106(b) echoes this sentiment in similar language.

Whether Article 6(c) and R.C.M. 1106(b) disqualify an individual

from acting as the SJA is a question of law, which we review de

novo.    See United States v. Taylor, 60 M.J. 190, 194 (C.A.A.F.

2004).

        The plain text of Article 6(c) states that an individual

who acted as trial counsel is disqualified from acting as the

SJA.    We reject the Government’s argument “that only those

persons that were detailed as trial counsel in accordance with

Article 27, UCMJ[, 10 U.S.C. § 827 (2006),] are disqualified”

under Article 6(c).    The text does not support such a narrow

reading of the statute, as disqualification does not require

that a person be detailed as trial counsel, only that the person

act as such.

        Therefore, a person will be disqualified from acting as the

SJA if that person performed the duties of a disqualifying

position.    See United States v. Mallicote, 13 C.M.A. 374, 376,

32 C.M.R. 374, 376 (1962) (“although the staff judge advocate or

his assistant are not, by reason of their office and ordinary

pretrial activities, barred by Article 6(c) from subsequently

advising the reviewing authority, the implication and reason why

he must be when he acts -- directly or indirectly -- as trial


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United States v. Stefan, No. 10-0349/AR


counsel, are clear”).    As for when a person has performed the

duties of a disqualifying position, some relevant considerations

include the action taken, the position of the person that would

normally take that action, and the capacity in which the action

is claimed to have been taken.

                                  B.

     In this case, Major Wright performed some duties of -- and

thus acted as -- trial counsel.    She not only caused the charges

to be served on Appellant, a task traditionally reserved for

detailed trial counsel, see R.C.M. 602 (“The trial counsel

detailed to the court-martial . . . shall cause to be served

upon each accused a copy of the charge sheet.”), but she also

acknowledged performing that act as trial counsel in block 15 of

the two charge sheets.   As such, she was disqualified by Article

6(c) from acting as the SJA in Appellant’s case.

                                 III.

                                  A.

     Although we find error, we do not find that Appellant was

prejudiced.   We have not held that “recommendations prepared by

a disqualified officer [are] void.”      United States v. Edwards,

45 M.J. 114, 115 (C.A.A.F. 1996).       Rather, we test for prejudice

under Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2006), which

requires material prejudice to the substantial rights of the

accused.   Appellant asks that we presume prejudice when Article


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United States v. Stefan, No. 10-0349/AR


6(c) is violated, but we find that these kinds of errors are

amenable to being tested for prejudice.      To find reversible

error, an appellant must, inter alia, “make[] ‘some colorable

showing of possible prejudice.’”       Taylor, 60 M.J. at 195

(quoting United States v. Wheelus, 49 M.J. 283, 289 (C.A.A.F.

1998)).

                                B.

     At the outset, we note that Appellant did not even raise

this issue on appeal to the CCA; the case was submitted to that

court on its merits.   Instead, Judge Ham raised it sua sponte.

Stefan, 2010 CCA LEXIS 12, at *1.       Regardless of whether

Appellant raised the issue below, other facts substantiate that

Appellant has not made a colorable showing of prejudice.

     Candidly, Major Wright’s involvement in Appellant’s case

was minimal.   While minimal conduct can contravene Article 6(c),

it is obvious that when the conduct is relatively minimal, the

likelihood of actual prejudice is substantially diminished.       In

this case, Major Wright’s actions simply did not rise to the

level that traditionally has been found to cause prejudice.

See, e.g., United States v. Johnson-Saunders, 48 M.J. 74, 74-75

(C.A.A.F. 1998) (finding prejudice when the acting SJA had been

detailed as the assistant trial counsel, had actively prosecuted

the case, and had requested a harsher sentence than adjudged);

United States v. Coulter, 3 C.M.A. 657, 658-59, 14 C.M.R. 75,


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United States v. Stefan, No. 10-0349/AR


76-77 (1954) (finding prejudice when the acting SJA had been

detailed as trial counsel, actively prosecuted the case, and

called the accused a “worthless individual” in a report to the

convening authority).

     In this case, nothing indicates that Major Wright actively

prosecuted the case or took a firm stance on sentencing.    Her

addendum to the SJAR merely echoed Major Van Eck’s succinct

recommendation of no clemency without further elaboration of

Appellant’s case.   See United States v. Hamilton, 47 M.J. 32, 35

(C.A.A.F. 1997) (noting, inter alia, that a recommendation,

which was “plain-vanilla in substance,” did not prejudice the

appellant).   Considering the circumstances of this case,

including the host of offenses committed by Appellant and the

seriousness of some of his crimes,2 there is nothing that would

suggest that another SJA would have made a different

recommendation on Appellant’s clemency request.   We conclude

that Appellant was not prejudiced.




2
  One should not underestimate the seriousness of barracks
larceny. From basic training onwards, servicemembers are taught
to trust their fellow servicemembers with their life, and
barracks theft substantially damages that trust. See United
States v. Usry, 9 M.J. 701, 703 (N.C.M.R. 1980); accord United
States v. Hampton, 40 M.J. 457, 460 (C.M.A. 1994).




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United States v. Stefan, No. 10-0349/AR


                               IV.

     The judgment of the United States Army Court of Criminal

Appeals is affirmed.




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