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

                             No. 201700031
                         _________________________

                  UNITED STATES OF AMERICA
                                  Appellee
                                      v.

                   WILLIAM A. GUTIERREZ, III
                    Seaman Recruit (E-1), U.S. Navy
                               Appellant
                        _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

 Military Judge: Captain Bethany L. Payton-O’Brien, JAGC, USN.
Convening Authority: Commanding Officer, Navy Region Southwest
            Transient Personnel Unit, San Diego, CA.
Staff Judge Advocate’s Recommendation: Lieutenant Junior Grade
                  Stacey E. Saxon, JAGC, USN.
    For Appellant: Commander R. Don Evans, Jr., JAGC, USN.
For Appellee: Lieutenant Robert J. Miller, JAGC, USN; Lieutenant
                 Megan P. Marinos, JAGC, USN.
                     _________________________

                          Decided 31 July 2017
                         _________________________

 Before M ARKS , H UTCHISON , 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.
                       _________________________

   PER CURIAM:
   At a special court-martial, a military judge convicted the appellant,
pursuant to his pleas, of one specification of absence without leave, two
specifications of failure to obey a lawful general order or regulation, and
three specifications of wrongful use of a controlled substance, in violation of
Articles 86, 92, and 112a, Uniform Code of Military Justice (UCMJ), 10
                      United States v. Gutierrez, No. 201700031


U.S.C. §§ 886, 892, and 912a. The military judge sentenced the appellant to
95 days’ confinement and a bad-conduct discharge. The convening authority
(CA) approved the sentence as adjudged but, pursuant to the pretrial
agreement, suspended all confinement in excess of time served—48 days.
    The appellant raises two assignments of error (AOEs): (1) ex parte
communications factored into the military judge’s sentencing determination;
and (2) the court-martial promulgating order did not accurately reflect the
appellant’s rank at the time of his court-martial. We find merit only in the
second AOE, and order corrective action in our decretal paragraph. Finding
no error materially prejudicial to the substantial rights of the appellant, we
affirm the findings and sentence. Arts. 59(a) and 66(c), UCMJ.
                                  I. BACKGROUND
    Between 24 and 25 August 2016, the appellant used heroin and
marijuana. On 25 August 2016, he was caught attempting to defeat a random
urinalysis by using a false bladder. After he was discovered using the device,
he consented to a search of his barracks room where two syringes and a spoon
used to inject drugs were found. When he was notified that same day that he
would be placed in pretrial confinement, he commenced a period of
unauthorized absence which was terminated by apprehension on 29 August
2016. While in an unauthorized absence status, he again used heroin.
    Prior to trial, the military judge, trial counsel, and defense counsel met in
a pretrial RULE FOR COURTS-MARTIAL (R.C.M.) 802, MANUAL FOR COURTS-
MARTIAL, UNITED STATES (2016 ed.) conference. Among other things
discussed, the military judge wanted to know if the appellant had attended
drug rehabilitation in the past and whether he was interested in attending in
the future. She indicated a “continuance might be in order depending on
when rehabilitation might be available[.]”1 She encouraged the defense
counsel to ascertain what the appellant’s desires were and informed him that
she would question the appellant at trial concerning those desires.
   At trial, the military judge stated to the trial counsel, “you sent me back
an email. Tell me about what is the next available slot if Seaman Gutierrez is
deemed a candidate for rehabilitation?”2 The trial counsel indicated that the
next available bed at the drug rehabilitation center was 19 November 2016.
The military judge then queried the defense counsel as to whether his client
desired a continuance of the trial to attend rehabilitation and was told that
the appellant wanted to finish the trial that day. When the military judge
awarded her sentence, she recommended the CA suspend any confinement


   1   Record at 9.
   2   Id. at 53.

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                     United States v. Gutierrez, No. 201700031


after 19 November 2016 so the appellant could participate in rehabilitation.
The military judge subsequently learned the appellant had negotiated with
the CA a time-served deal for confinement.
   Additionally, the court-martial promulgating order incorrectly identifies
the appellant as a Seaman at the time of trial when, in fact, he was a Seaman
Recruit.
                                  II. DISCUSSION
A. Ex parte communications
    The appellant argues that the email referenced by the military judge
during trial was an ex parte exchange between the military judge and trial
counsel. However, it is clear from the military judge’s choice of words—“you
sent me back an e-mail”—that the military judge had followed up on a
conversation from the R.C.M. 802 conference with an email asking for more
specifics in preparation for the guilty plea.3 During the colloquy between the
military judge and the trial counsel in court, the defense counsel did not
appear to be confused or express any concern whatsoever regarding this
email. Rather, in all likelihood, the email traffic included both parties, as is
standard practice. Certainly, the appellant has provided no evidence that his
trial defense counsel was not a party to this e-mail to rebut the presumption
that the military judge communicated properly with counsel.4 Under these
facts, we find it improbable the military judge conducted ex parte
communications with the trial counsel via email.
    Assuming arguendo there was an ex parte communication, we review de
novo whether it resulted in material prejudice to the substantial rights of the
accused. See United States v. Copening, 34 M.J. 28, 30 (C.M.A. 1992). “[E]x
parte communications between counsel and a judge will not be condoned. . . .
Absent manifest unfairness, however, charges are neither dismissed, nor
reversal granted, for such error.” Id. (citations omitted). Further, “disclosure
on the record is the recognized method for eliminating even the appearance of
unfairness which might result from such unauthorized communications.”
United States v. Martinez, 40 M.J. 82, 84 (C.M.A. 1994) (citing United States
v. Allen, 33 M.J. 209, 213 (C.M.A. 1991)). This is because “[a]ny residual
question as to the appearance of unfairness [is] eliminated once the military
judge afford[s] the defense an opportunity to comment on the record.” United


   3   Id. (emphasis added).
   4  The appellant’s defense counsel on appeal states, “The undersigned has called
Defense Service Office West to address this matter with Detailed Defense Counsel.
As of this writing, the undersigned’s efforts to communicate with Detailed Defense
Counsel have been unsuccessful.” Appellant’s Brief of 3 Apr 2017 at 5 n.4.

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                 United States v. Gutierrez, No. 201700031


States v. Prescott, No. 20020257, 2005 CCA LEXIS 505 at *8, unpublished op.
(A. Ct. Crim. App. 2005) (citing Martinez, 40 M.J. at 84).
   If there was an ex parte communication in this case we find it harmless.
First, the defense counsel appeared aware of the factual information
contained in the email—that a bed would not be available at a rehabilitation
center until 19 November 2016. Second, upon the military judge’s disclosure,
the defense counsel had the opportunity to voir dire the military judge and
seek her disqualification. See United States v. Quintanilla, 56 M.J. 37, 44
(C.A.A.F. 2001); United States v. Turner, 75 M.J 954, 960 (A.F. Ct. Crim.
App. 2016), rev. denied, 76 M.J. 70 (C.A.A.F. 2017). The defense did neither.
Third, as the appellant concedes, the military judge’s motive was to assist
him in his recovery from dependence on drugs, not to prejudice him. Fourth,
the trial counsel gained no tactical advantage by the purported ex parte
communication. Finally, the CA suspended all confinement in excess of time
served. In sum, there was no “manifest unfairness” in the proceedings.
Copening, 34 M.J. at 30.
B. Scrivener’s error
    We test error in court-martial orders under a harmless-error
standard, United States v. Crumpley, 49 M.J. 538, 539 (N-M. Ct. Crim. App.
1998), and find this error did not materially prejudice the appellant’s
substantial rights. However, the appellant is entitled to accurate court-
martial records. Id. Accordingly, we order the necessary corrective action
in our decretal paragraph.
                             III. CONCLUSION
   The findings and the sentence as approved by the CA are affirmed. The
supplemental court-martial order shall reflect the proper rank of the
appellant, which was Seaman Recruit (E-1).


                                      For the Court




                                      R. H. TROIDL
                                      Clerk of Court




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