UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                             JOHNSON, KERN, and BURTON
                                Appellate Military Judges

                            UNITED STATES, Appellee
                                      v.

                         Private E1 ANTHONY J. CRUSE
                          United States Army, Appellant

                                    ARMY 20100526

      Headquarters, U.S. Army Combined Arms Center and Fort Leavenworth
                         Susan K. Arnold, Military Judge
              Colonel Samuel J. Rob, Staff Judge Advocate (pretrial)
   Lieutenant Colonel Roseanne M. Bennett, Acting Staff Judge Advocate (SJAR)
             Colonel Fred P. Taylor, Staff Judge Advocate (addendum)

For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Laura A. Kesler, JA; Captain Jennifer A. Parker, JA (on brief).

For Appellee: Lieutenant Colonel Paul J. Cucuzzella, JA; Major LaJohnne A. White,
JA; Major Amber J. Williams, JA (on brief).

                                    27 October 2011

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                                SUMMARY DISPOSITION
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BURTON, Judge:

       A military judge sitting as a special court-martial convicted appellant,
pursuant to his plea, of assault upon a sentinel in violation of Article 128, Uniform
Code of Military Justice, 10 U.S.C. § 928 [hereinafter UCMJ]. An enlisted panel
sentenced appellant to a bad-conduct discharge, confinement for twelve months,
forfeiture of two-thirds pay per month for twelve months and reduction to the grade
of E1. The convening authority approved the adjudged sentence with exception of
the forfeitures.

      In this case, appellant, while confined as an inmate at the U.S. Disciplinary
Barracks at Fort Leavenworth, struck Staff Sergeant C.H. in the head with his fist
following a brief altercation. Staff Sergeant C.H. was carrying out his
responsibilities for physical security at the prison at the time he was assaulted. In
pleading guilty, appellant offered no excuse or justification for his conduct.
CRUSE—ARMY 20100526

      On appeal, the sole assignment of error is that:

      THE MILITARY JUDGE ERRED BY FAILING TO HOLD PANEL
      DELIBERATION DURING SENTENCING, RESULTING IN A
      STRUCTURAL DEFECT OF APPELLANT’S COURT-MARTIAL.

The record of trial reveals that, after thoroughly and correctly instructing the panel
regarding sentencing procedures, the military judge asked the president if the panel
would like to take a 10-minute recess before deliberating. The president indicated
affirmatively that the panel would like a recess. The record indicates what then
transpired:

      MJ: The court will be in recess for 10 minutes.

      [The Court recessed at 1338 hours, 18 June 2010.]

      [The Court reconvened at 1350 hours, 18 June 2010.]

      MJ: Court is called to order. All parties are present to include the
      court members. Ma'am, have you reached a sentence [?]

      PRES: Yes, ma’am.

No objection of any kind was raised at the time, and the panel then announced the
sentence.

       Appellant now contends that instead of properly closing the court for
deliberations, the military judge mistakenly allowed the panel to take a recess prior
to their deliberations, to determine a sentence during that recess, and then to
announce a sentence even though deliberations never officially occurred. Appellant
further contends that it is unknown who participated in the discussions, if all panel
members participated, where the discussions were conducted, who was present, and
whether exhibits were or were not given to the members. Appellant finally contends
that all of this amounts to a structural error which necessitates setting aside the
sentence even in the absence of demonstrable prejudice.

       Our analysis of the assignment of error in this case is controlled by our
superior court’s decision in United States v. Jones, 37 M.J. 321 (C.M.A. 1993). In
Jones, the panel members asked for permission to recess before deliberating. The
military judge told them they could recess and then commence deliberations at a
specific time, without first reconvening. The panel acted accordingly and then
announced the sentence. The issue in the Jones case was:

      WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL



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CRUSE—ARMY 20100526

      PREJUDICE OF APPELLANT BY INSTRUCTING THE PANEL THAT
      THEY HAD THE OPTION TO BEGIN DELIBERATIONS ON
      SENTENCE AT A SPECIFIC TIME WITHOUT RECONVENING
      REGARDLESS OF WHETHER THEY ALL HAD REASSEMBLED.

Id. at 321-322.

       In Jones, our superior court assumed that the military judge had committed
error, saying “the military judge left reassembling totally up to the members and
failed to provide for a routine administrative ‘head check’ on the record as provided
by RCM 813(b).” Id. But the court concluded that the error had not “substantially
prejudiced” the rights of the accused. The court reasoned:

             Assuming, arguendo, that the military judge erred, that error did
      not amount to a plain error that substantially prejudiced appellant. See
      United States v. Fisher, 21 M.J. 327 (C.M.A. 1986). What happened in
      this case, although not a wise practice, does not undermine the
      structural set up for military criminal trials, such as the total
      deprivation of the right to counsel or to a judge who was impartial. See
      Arizona v. Fulminante, [499 U.S. 279 (1991)].
             The judge properly instructed the members that no one was to
      enter their closed deliberations. There has been no post-trial allegation
      indicating that any improper actions took place on the part of
      witnesses, members, or parties to this trial. Thus, if there was any error
      here, it was not prejudicial.

37 M.J. at 323-324.

      Our superior court concluded that plain error analysis was appropriate in
Jones given the absence of a timely objection by defense counsel. In reaching this
conclusion, the court relied on United States v. Olano, 507 U.S. 725 (1993), which
had concluded in “an analogous situation” that allowing alternate jurors in the jury
room during deliberations was plain error. See Jones, 37 M.J. at 323.

       Following Jones, we assume that the military judge in this case violated Rule
for Courts-Marital 813(b) by not reconvening the panel members before their
deliberations and further conclude that plain error analysis is appropriate given the
absence of objection by defense counsel. We determine that the error did not
substantially prejudice appellant for the same reasons our superior court found no
substantial prejudice in Jones: the members were properly instructed and there is no
allegation that anything improper occurred during the recess or deliberations.

      On consideration of the entire record, we hold the finding of guilty and the
sentence as approved by the convening authority correct in law and fact.



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CRUSE—ARMY 20100526

Accordingly, the finding of guilty and the sentence are AFFIRMED.

      Senior Judge JOHNSON and Senior Judge KERN concur.

                                    FOR
                                     FORTHE
                                         THECOURT:
                                              COURT:




                                    MALCOLM H. SQUIRES, JR.
                                     MALCOLM H. SQUIRES, JR.
                                    Clerk of Court
                                     Clerk of Court  




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