          U NITED S TATES N AVY –M ARINE C ORPS
              C OURT OF C RIMINAL A PPEALS
                          _________________________

                              No. 201700036
                          _________________________

                  UNITED STATES OF AMERICA
                                  Appellee
                                      v.
                          AUSTIN J. HUNTER
                    Private (E-1), U.S. Marine Corps
                               Appellant
                        _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

          Military Judge: Major Robert D. Merrill, USMC.
   Convening Authority: Commanding Officer, Headquarters and
        Service Battalion, Marine Corps Base, Quantico, VA.
  Staff Judge Advocate’s Recommendation : Major Michael J. Eby,
                                USMC
           For Appellant: Major Jason L. Morris, USMCR
  For Appellee: Commander Joseph E. Stolasz, JAGC, USN; Major
                       Kelli A. O’Neil, USMC
                      _________________________

                           Decided 8 August 2017
                          _________________________

     Before M ARKS , R UGH , and J ONES , Appellate Military Judges
                         _________________________

This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
                       _________________________

   RUGH, Judge:
   A military judge sitting as a special court-martial convicted the appellant,
pursuant to his pleas, of aggravated assault, assault consummated by a
battery, obstructing justice, and breaking restriction, in violation of Articles
128 and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 928 and
934 (2012). The military judge sentenced appellant to nine months’
                       United States v. Hunter, No. 201700036


confinement, forfeiture of $1,000.00 pay per month for nine months, and a
bad-conduct discharge. In accordance with a pretrial agreement (PTA), the
convening authority (CA) approved the sentence, suspending confinement in
excess of five months, and, except for the bad-conduct discharge, ordered the
sentence executed.
   The appellant now raises one assignment of error: that he was prejudiced
when he was not served the addendum to the staff judge advocate's
recommendation (SJAR) pursuant to the R ULE F OR C OURTS -M ARTIAL
(R.C.M.) 1106(f)(7), M ANUAL F OR C OURTS -M ARTIAL , U NITED S TATES
(2016 ed.). We agree and remand for new post-trial processing.
                                   I. BACKGROUND
   On 24 January 2016, the appellant and his friend, Private First Class
(PFC) Carroll, assaulted Lance Corporal (LCpl) JS in the barracks, holding
him down and attempting to remove his belt after threatening to rape him.
On 30 July 2016, the appellant and PFC Carroll assaulted a night club
bouncer as he escorted them from the night club. During this assault, the
appellant kicked the bouncer in the head after PFC Carroll knocked him to
the ground causing the bouncer serious injury, including facial fractures.
   On 11 December 2016, after pleading guilty at court-martial, the
appellant submitted a request for clemency which misstated the CA’s
authority to grant relief from confinement pursuant to R.C.M. 1105. After the
27 December 2016 SJAR corrected the misstatement, the appellant
submitted a second clemency request on 4 January 2017 asking the CA to
defer and disapprove all forfeitures.
   At the same time, the victims’ legal counsel (VLC) for LCpl JS submitted
matters for consideration by the CA pursuant to R.C.M. 1105A. In her letter
dated 27 December 2016, the VLC urged the CA to deny clemency to the
appellant. In support of her request, the VLC argued that the appellant
assaulted LCpl JS “by force and without his consent” and asserted that “[t]he
only thing that saved [LCpl JS] from [the appellant] going any further was a
knock at their barracks room door.”1 This assertion was based on inferences
drawn from Prosecution Exhibit (PE) 1, a stipulation of fact, which provided:
            The [appellant] then attempted to remove the belt of LCpl
         JS and succeeded in unbuckling the belt buckle. At that point,
         [another LCpl] knocked on the barracks room door, upon




   1   Victim’s Submission of Post-trial Matters (VLC Letter) of 27 Dec. 2016.


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                      United States v. Hunter, No. 201700036


         hearing a physical altercation, and inquired if everything was
         alright. . . . LCpl JS departed the barracks room at that point.2
    The VLC further argued that the appellant “placed my client in a
tremendous amount of fear for his safety. Furthermore, the embarrassment
of being an assault victim of another male is uniquely embarrassing to [LCpl
JS].”3 LCpl JS did not testify at trial but did provide a letter for the military
judge’s consideration in pre-sentencing.4 In his letter, LCpl JS did not discuss
the assault at length or describe why he found the assault by the appellant
uniquely embarrassing.
    On 18 January 2017, the staff judge advocate provided an addendum to
his recommendation enclosing the VLC’s letter and the appellant’s second
clemency request. The addendum asserted that “[s]ince no new matters, as
defined under [R.C.M.] 1106(f), are addressed by this addendum, the case is
now ready for your action.”5 The appellant was never served the SJAR
addendum, and his trial defense counsel was unaware of the VLC’s letter or
its contents until after the CA acted.
   On 19 January 2017, the day after the SJAR addendum was provided, the
CA acted, approving the findings and sentence in accordance with the PTA
but denying any additional clemency.
                                 II. DISCUSSION
   Post-trial conduct must consist of fair play, specifically giving the
appellant “notice and an opportunity to respond.” United States v. Leal, 44
M.J. 235, 237 (1996). In support of the general concept of fair play, R.C.M.
1105(c)(1) and 1106(f)(7) require that, if the SJAR addendum contains “new
matter,” the addendum must be served on the appellant and defense counsel,
who then have an opportunity to comment on the addendum.
    “‘New matter’ includes discussion of the effect of new decisions on issues
in the case, matter from outside the record of trial, and issues not previously
discussed. ‘New matter’ does not ordinarily include any discussion by the
staff judge advocate . . . of the correctness of the initial defense comments on
the recommendation.” R.C.M. 1106(f)(7), Discussion; United States v.
Catalani, 46 M.J. 325, 326 (C.A.A.F. 1997).




   2   PE 1 at 2.
   3   VLC Letter.
   4   PE 3.
   5   SJAR Addendum of 18 Jan 2017.


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                     United States v. Hunter, No. 201700036


    Whether the SJAR addendum included new matter is a question of law
we review de novo. United States v. Chatman, 46 M.J. 321, 323 (C.A.A.F.
1997). In this case, because the VLC’s letter included inferences and
arguments adverse to the appellant from outside the record of trial, we find
that the SJAR addendum contained new matter and should have been served
on the appellant and defense counsel with an opportunity to comment. This
information was neither neutral nor trivial as the letter zealously advocated
solely on behalf of the victim. The letter amounted to a direct avenue of
influence from the victim to the CA, which should have been balanced with
an opportunity for counter-advocacy from the defense. Fair play demanded it.
As a result, failure to serve the addendum and enclosures on the defense was
error.
   Where matters adverse to the accused from outside the record have been
erroneously considered by the CA, the Court of Appeals for the Armed Forces
(CAAF) has stated:
       [W]e will require appellant to demonstrate prejudice by stating
       what, if anything, would have been submitted to “deny,
       counter, or explain” the new matter. . . . We believe that the
       threshold should be low, and if an appellant makes some
       colorable showing of possible prejudice, we will give that
       appellant the benefit of the doubt and “we will not speculate on
       what the convening authority might have done” if defense
       counsel had been given an opportunity to comment.
United States v. Rodriguez-Rivera, 63 M.J. 372, 384 (C.A.A.F. 2006) (quoting
Chatman, 46 M.J. at 323-24.).
   Here, the appellant asserts that, if given the opportunity, he would have
denied and countered the VLC’s allegations to the extent they relied on
conduct to which the appellant pleaded not guilty.6 We find this sufficient to
meet the appellant’s low threshold. In this way, this case is distinguishable
from decisions like United States v. Morales, 2015 CCA LEXIS 53 (N-M. Ct.
Crim. App. 19 Feb. 2015), submitted without assignment of error, in which
the appellant failed to allege any prejudice resulting from the failure to serve
new matters on the defense.




   6 For Specification 2 of Charge III, assault consummated by battery of LCpl JS,
the appellant pleaded guilty by exceptions and substitutions, excepting the language
“unlawfully removed the belt and pants” and substituting the language “unlawfully
unbuckle the belt” of LCpl JS. Record at 9.


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                   United States v. Hunter, No. 201700036


                              III. CONCLUSION
   We set aside the CA’s action dated 19 January 2017 and return the record
to the Judge Advocate General for remand to an appropriate convening
authority for new post-trial processing.
   Senior Judge MARKS and Judge JONES concur.
                                     For the Court




                                     R. H. TROIDL
                                     Clerk of Court




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