                                    IN THE CASE OF


                             UNITED STATES, Appellee

                                            v.

                      Jonathan G. SCALO, Private (E-1)
                            U.S. Army, Appellant

                                      No. 04-0250
                             Crim. App. No. 20020624

       United States Court of Appeals for the Armed Forces

                             Argued November 8, 2004

                            Decided February 8, 2005

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


                                         Counsel


For Appellant: Major Sean S. Park (argued); Colonel Mark
    Cremin, Colonel Robert D. Teetsel, Lieutenant Colonel Mark
    Tellitocci and Captain Kathleen D. Schmidt (on brief).

For Appellee: Captain Magdalena A. Przytulska (argued); Colonel
    Steven T. Salata, Lieutenant Colonel Margaret B. Baines,
    Lieutenant Colonel Theresa A. Gallagher and Lieutenant
    Colonel Mark L. Johnson (on brief).


Military Judge:       Jeffrey D. Smith


        THIS   OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Scalo, No. 04-0250/AR



    Judge EFFRON delivered the opinion of the Court.

    At a general court-martial composed of a military judge

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

of wrongful use of marijuana (four specifications), wrongful

possession of marijuana (three specifications), and forgery (two

specifications), in violation of Articles 112a and 123, Uniform

Code of Military Justice (UCMJ), 10 U.S.C. §§ 912a and 923.    He

was sentenced to a bad-conduct discharge, confinement for

fourteen months, and forfeiture of all pay and allowances.    The

convening authority approved these results and suspended

confinement in excess of twelve months for twelve months

pursuant to a pretrial agreement.    The United States Army Court

of Criminal Appeals affirmed.   United States v. Scalo, 59 M.J.

646 (A. Ct. Crim. App. 2003) (en banc).

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

issue:

          WHETHER THE UNITED STATES ARMY COURT OF
          CRIMINAL APPEALS ERRED BY HOLDING THAT THE
          STAFF JUDGE ADVOCATE’S FAILURE TO ADVISE THE
          CONVENING AUTHORITY OF THE NATURE AND
          DURATION OF APPELLANT’S PRETRIAL RESTRAINT
          DID NOT CONSTITUTE PREJUDICIAL ERROR.

Because Appellant failed to make a colorable showing of possible

prejudice from the error in the post-trial recommendation, we

affirm the decision of the Army Court of Criminal Appeals.




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United States v. Scalo, No. 04-0250/AR


                            I. BACKGROUND

     As we observed in United States v. Finster, 51 M.J. 185,

186 (C.A.A.F. 1999):

          One of the distinguishing features of the
          military justice system is the broad
          authority of the commander who convened a
          court-martial to modify the findings and
          sentence adjudged at trial. Although
          frequently exercised as a clemency power,
          the commander has unfettered discretion to
          modify the findings and sentence for any
          reason -- without having to state a reason -
          - so long as there is no increase in
          severity.

See also United States v. Davis, 58 M.J. 100, 102 (C.A.A.F.

2003)(describing the convening authority as the accused’s best

hope for clemency).    When a sentence includes a punitive

discharge or confinement for one year or more, the convening

authority must receive a written recommendation from his or her

staff judge advocate (SJA) before taking action on the case.

Article 60(d), UCMJ, 10 U.S.C. § 860(d); Rule for Courts-Martial

(R.C.M.) 1106(a).   The President has issued detailed guidance as

to the material that must be set forth in the SJA’s

recommendation, including “[a] statement of the nature and

duration of any pretrial restraint.”   R.C.M. 1106(d)(3)(D).

     The SJA’s recommendation plays a vital role in providing

the convening authority with complete and accurate advice in the

exercise of command discretion.   See Finster, 51 M.J. at 187.

Accurate advice is particularly important in light of the fact


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United States v. Scalo, No. 04-0250/AR


that the convening authority is not required to review the

record of trial personally before taking action.    See United

States v. Diaz, 40 M.J. 335 (C.M.A. 1994).

     In the present case, the SJA reported to the convening

authority that Appellant had not been subject to any pretrial

restraint.   The parties agree that the SJA erred, overlooking

the fact that Appellant had been restricted to the confines of

Fort Stewart, Georgia, for forty-four days prior to his court-

martial.   The defense counsel did not comment on this omission.



                           II. DISCUSSION

     If defense counsel does not make a timely comment on an

omission in the SJA’s recommendation, the error is waived unless

it is prejudicial under a plain error analysis.    R.C.M. 1106(f);

United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000).    We

conduct a de novo review of this issue.     Kho, 54 M.J. at 65.   To

prevail under a plain error analysis, Appellant must persuade

this Court that: “(1) there was an error; (2) it was plain or

obvious; and (3) the error materially prejudiced a substantial

right.”    Id.; see United States v. Powell, 49 M.J. 460, 463, 465

(C.A.A.F. 1998).

     The granted issue in the present appeal involves the third

prong of the plain error test -- an appellant’s burden to

establish that the error materially prejudiced a substantial


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United States v. Scalo, No. 04-0250/AR


right.   To meet this burden in the context of a post-trial

recommendation error, whether that error is preserved or is

otherwise considered under the plain error doctrine, an

appellant must make “some colorable showing of possible

prejudice.”   Kho, 54 M.J. at 65 (citing United States v.

Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998)).   The low threshold

for material prejudice with respect to an erroneous post-trial

recommendation reflects the convening authority’s vast power in

granting clemency and is designed to avoid undue speculation as

to how certain information might impact the convening

authority’s exercise of such broad discretion.   See, e.g.,

Wheelus, 49 M.J. at 289.

     The threshold is low, but there must be some colorable

showing of possible prejudice.   See Kho, 54 M.J. at 65.    In the

context of a convening authority’s exercise of post-trial

discretion, the omission of pretrial restraint information is

not inherently prejudicial.   There must be a colorable showing

of possible prejudice in terms of how the omission potentially

affected an appellant’s opportunity for clemency.

     Appellant argues that we should find a colorable showing of

possible prejudice by looking at his loss of liberty in

conjunction with the clemency matters submitted to the convening

authority and his compliance with a pretrial agreement.

According to Appellant, he was a strong candidate for clemency,


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United States v. Scalo, No. 04-0250/AR


and knowledge of his pretrial restraint could have been the

additional factor that would have persuaded the convening

authority to grant clemency.   Appellant further maintains that

if the pretrial restraint information had been included in the

SJA’s recommendation, the convening authority could have noticed

that Appellant served his pretrial restraint without

disciplinary problems, which could have made the convening

authority more likely to grant clemency.

     Appellant’s argument does not reveal any connection between

the time he spent in pretrial restraint and his clemency

request.    The petition for clemency that Appellant submitted to

the convening authority highlighted Appellant’s cooperation with

authorities, acceptance of responsibility, and desire to witness

the birth of his child.   Appellant did not directly or

indirectly refer to the pretrial restraint or suggest that the

convening authority should take it into account in considering

clemency.    Moreover, the 44-day period of pretrial restraint was

not of such unusual duration that there is a reasonable

likelihood that the length alone -- without any mention by

Appellant -- would have attracted the convening authority’s

attention for purposes of clemency.   Under these circumstances,

Appellant has not made a colorable showing of possible

prejudice.




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United States v. Scalo, No. 04-0250/AR


                         III. CONCLUSION

     Accordingly, the decision of the United States Army Court

of Criminal Appeals is affirmed.




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United States v. Scalo, No. 04-0250/AR


     CRAWFORD, Judge (concurring in the result):

     I concur in the result for the reasons set forth in United

States v. Kho, 54 M.J. 63, 65-66 (C.A.A.F. 2000)(Crawford, C. J.

(concurring in the result)).
