

   
   
   
   U.S. v. Wilson



IN THE CASE OF
UNITED STATES, Appellee
v.
Robert L. WILSON, Mess Management Specialist
Seaman
U.S. Navy, Appellant
 
No. 99-0202
Crim. App. No. 98-0333
 
United States Court of Appeals for the Armed
Forces
Argued November 10, 1999
Decided September 1, 2000
GIERKE, J., delivered the opinion of the
Court, in which
EFFRON, J., and COX, S.J., joined. EFFRON,
J., filed
a concurring opinion. SULLIVAN, J., filed
an opinion
concurring in part and dissenting in part.
CRAWFORD, C.J.,
filed an opinion concurring in the result.
Counsel
For Appellant: Captain Curtis M. Allen,
USMC (argued).
For Appellee: Major Mark K. Jamison,
USMC (argued); Colonel Kevin M. Sandkuhler, USMC, Commander Eugene
E. Irvin, JAGC, USN, and Lieutenant Russell J. Verby, JAGC,
USNR (on brief).
Military Judge: James D. Rockwell



This opinion is subject
to editorial correction before publication.
 
 

Judge GIERKE delivered the opinion of the Court.

A military judge sitting as a general court-martial
convicted appellant, pursuant to his pleas, of aggravated assault (2 specifications),
assault consummated by a battery, and kidnapping, in violation of Articles
128 and 134, Uniform Code of Military Justice, 10 USC §§ 928
and 934, respectively. The military judge sentenced appellant to a dishonorable
discharge, confinement for 7 years, total forfeitures, and reduction to
the lowest enlisted grade. The convening authority approved the adjudged
sentence but suspended all confinement in excess of 30 months for a period
of 30 months in accordance with a pretrial agreement. The Court of Criminal
Appeals affirmed in an unpublished opinion.
Our Court granted review of the following issues:


I
WHETHER THE COURT OF CRIMINAL APPEALS FAILED
TO ANALYZE THE PREJUDICE TO APPELLANT UNDER UNITED STATES V. WHEELUS,
"SOME COLORABLE SHOWING OF POSSIBLE PREJUDICE," AND INSTEAD ERRONEOUSLY
TESTED FOR PREJUDICE UNDER ARTICLE 59(a), UCMJ, "MATERIAL PREJUDICE TO
THE SUBSTANTIAL RIGHTS OF THE ACCUSED."

II
WHETHER THE COURT OF CRIMINAL APPEALS ERRED
IN FAILING TO REQUIRE THE GOVERNMENT TO SHOW THAT THE FAILURE TO ABIDE
BY ARTICLE 60, UCMJ, WAS NOT PREJUDICIAL.

For the reasons set out below, we affirm.

Factual Background
The facts underlying appellants guilty pleas
were set out in a stipulation of fact. The stipulation recites that appellant
grabbed Religious Programs Specialist Seaman (RPSN) B around the neck,
brandished a 12-inch barbecue fork in her face, and threatened to stab
her. He forced her into an unoccupied room in the barracks where he pushed
her onto a bed, unbuckled and pulled down her pants, and placed his hand
on her vaginal area. He held RPSN B in the room against her will for about
an hour, during which she attempted to escape four times but was forced
by appellant to remain in the room.
After the record was completed and authenticated,
the staff judge advocates (SJAs) recommendation was signed and submitted
by Lieutenant (LT) Brendan C. Curran, a commissioned officer of the Judge
Advocate Generals Corps, who identified himself as the "Assistant Staff
Judge Advocate, Naval Training Center, Great Lakes." The document does
not reflect whether the SJA reviewed and approved it, nor does it reflect
whether LT Curran was the acting SJA when he prepared and submitted his
recommendation.
LT Curran neglected to mention appellants
request for deferment of his reduction in grade and forfeitures and his
request for clemency. The convening authoritys action, however, specifically
recites that he considered "the record of trial, the results of trial,
the request for deferment of reduction in rank and forfeitures from the
defense counsel submitted 23 December 1997, the clemency request received
on 3 February 1998 and the recommendation of the Staff Judge Advocate."
The SJAs recommendation was served on appellant
and his defense counsel. Defense counsel responded that he had no comments
concerning the recommendation. Appellant did not challenge LT Currans
authority to prepare and submit the posttrial recommendation until his
case was before the Court of Criminal Appeals. That court held that it
was error for LT Curran to submit the posttrial recommendation in his capacity
as an assistant SJA, but it declined to grant relief, holding that any
error was waived unless it rose to the level of plain error. The court
did not attempt to determine if LT Curran was in fact the acting SJA. The
court held that there was no plain error. Unpub. op. at 2.

Discussion
Appellant now asserts that he was deprived
of a posttrial recommendation prepared by "a senior officer with greater
legal and life experience" than LT Curran. Final Brief at 5. He argues
that a more experienced officer may have viewed his requests for clemency
differently. The Government argues that any error was waived and does not
rise to the level of plain error.
Article 60(d), UCMJ, 10 USC § 860(d),
requires that the convening authority "obtain and consider the written
recommendation of his staff judge advocate or legal officer." Similarly,
RCM 1107(b)(3)(A)(ii), Manual for Courts-Martial, United States (1995 ed.),*
requires that the convening authority consider "[t]he recommendation of
the staff judge advocate or legal officer under RCM 1106, if applicable."
In United States v. Kema, 10 USCMA 272, 27 CMR 346 (1959), the three
judges of this Court each took a somewhat different approach to a case
where an assistant SJA prepared and signed the posttrial review, and the
SJA added a statement, "I concur," and signed it. The judges disagreed
on the amount of personal involvement required of the SJA. All three judges
were in agreement, however, that Congress contemplated that the convening
authority receive the recommendation of the SJA, not an assistant SJA.
RCM 1106(f)(6) provides that defense counsels
failure to comment on any matter in the posttrial recommendation in a timely
manner waives any later claim of error, unless it rises to the level of
plain error. An appellant has the burden of persuading this Court that
there was plain error. He must show that (1) there was an error; (2) that
it was plain or obvious; and (3) that the error materially prejudiced a
substantial right. United States v. Finster, 51 MJ 185, 187 (1999),
citing United States v. Powell, 49 MJ 460, 463, 465 (1998). Because
of the highly discretionary nature of the convening authoritys action
on the sentence, we will grant relief if an appellant presents "some colorable
showing of possible prejudice." United States v. Wheelus, 49 MJ
283, 289 (1998).
In this case, LT Curran was statutorily qualified
to submit the posttrial recommendation if the SJA reviewed and approved
it or if LT Curran was the acting SJA because of the absence or disqualification
of the SJA. Thus, this case is different from our recent decision in United
States v. Finster, supra, where the recommendation was submitted
by an enlisted person who was statutorily unqualified.
The court below did not determine the specific
nature of the error. Instead it merely recited two possibilities: (1) an
administrative error by failing to identify
LT Curran as the acting SJA, or (2) a legal error, i.e., submission
of the posttrial recommendation by an officer other than the senior judge
advocate present for duty. The court below concluded that any error did
not rise to the level of plain error.
We hold that appellant has failed to carry
his burden of persuading us that there was plain error. There is nothing
in the record before us showing that LT Curran was not the senior judge
advocate present for duty. Appellant has shown only a minor clerical error
in LT Currans signature block, which falls short of the substantive legal
error required by Article 59(a), UCMJ, 10 USC § 859(a), and the third
prong of Powell.
Furthermore, appellant has pointed to no errors
in the posttrial recommendation and we have found none, except the failure
to mention the clemency request and request for deferment. However, that
failure was clearly harmless, because the convening authority specifically
recited in his action that he considered them. While in another case there
might have been a reasonable likelihood of a more favorable recommendation
from a "senior officer with greater legal and life experience" than LT
Curran, that likelihood is purely speculative in this case. Appellant went
to trial facing serious charges and a possible sentence of life imprisonment.
See para. 92e, Part IV, Manual, supra (maximum punishment
for kidnapping). He had negotiated a pretrial agreement that had the practical
effect of cutting the adjudged confinement from 7 years to 30 months. We
recognize the highly discretionary nature of the convening authoritys
clemency power. Nevertheless, we are convinced that there is no reasonable
likelihood that the SJA would have recommended clemency in this case, or
that the convening authority would have granted it.

Decision
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
FOOTNOTE:
* All
Manual provisions are cited to the version in effect at the time of trial.
The 1998 Manual version is unchanged, unless otherwise indicated.


EFFRON, Judge (concurring):
When a judge advocate serves as the assistant
to the Staff Judge Advocate (SJA), and his or her duties include acting
as the SJA in the absence of that officer, the assistant has been placed
in the type of command-staff organizational relationship contemplated by
Article 60(d), UCMJ. In that context, even if the assistant SJA was not
formally serving as the acting SJA at the time the recommendation was submitted,
any error in the preparation of the post-trial recommendation by the assistant
SJA would not constitute structural error or otherwise constitute prejudicial
plain error. Compare United States v. Finster, 51 MJ 185
(1999) with United States v. Hensley, 52 MJ 391, 394 (2000)
(Effron, J., dissenting).


SULLIVAN, Judge (concurring in part and dissenting
in part):
The majority resolves this case on the basis
of the third prong of United States v. Powell, 49 MJ (1998), i.e.,
plain error must be shown by an appellant to have materially prejudiced
his substantial rights. Powell, however, only places a burden on
an appellant to show a "substantive legal error" was committed without
regard for its effect on the outcome of the case. (Maj. Op. at 6) It then
places the burden on the Government to show such error was harmless in
view of the outcome of the case. Id. at 465. By seemingly embracing this
dicta in United States v. Powell, supra, the majority establishes
the most liberal plain error rule in our country. See 1 Wigmore
on Evidence §18 at 796 (Tillers rev. 1983); see generally
Christian Ferguson, Note, Pharo v. State: Plain Error By Any Other Name,
44 Ark. L. Rev. 799 (1991).
In adopting such a plain error rule, it:



1. Eliminates the well recognized burden
of an accused to show unobjected to error prejudiced the outcome of his
trial.
2. Places an unparalleled burden on the Government
to show an unobjected to error did not prejudice the outcome of the case.
3. Eliminates the well recognized discretion
of an appellate court to cure plain error if it "seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings."



Contra Johnson v. United States,
520 U.S. 461, 467 (1997); United States v. Olano, 507 U.S. 725,
732 (1993); supra; see United States v. Fisher, 21
MJ 327 (CMA 1986)(similar plain error rule requirements as cited Supreme
Court cases without discussion of burden). I strongly disagree with the
majoritys new law. See United States v. Plaut, 18 USCMA
265, 272, 39 CMR 265, 272 (1969); United States v. Pond, 17 USCMA
219, 224, 38 CMR 17, 22 (1967); United States v. Stephen, 15 USCMA
314, 317-318, 35 CMR 286, 289-90 (1965) (applying Fed. R. Crim. P. 52(b)
to determine plain error).
I have previously disagreed with this Courts
holding, repeated in Powell, that a Court of Criminal Appeals is
not fully subject to the well-established law of plain error. See
United States v. Claxton, 32 MJ 159, 165 (CMA 1991)(Sullivan, J.,
concurring in part and in the result). I have also disagreed with this
Courts attempt to fashion a plain error rule based on Article 59(a), UCMJ,
10 USC § 859(a), that is different from that delineated by the Supreme
Court in Johnson and Olano. See United States v.
Powell, supra at 466 (Sullivan, J., concurring in the result).
The establishment of a per se plain error reversal rule for
the Court of Criminal Appeals (one which does not allow that appellate
court to determine whether prejudicial error "seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings") is contrary to
our decision in United States v. Fisher, supra, and denigrates
the status of the lower appellate court as a court of law. Article 66(c),
UCMJ, 10 USC § 866(c); see Jackson v. Taylor, 353 U.S.
569, 576-80 (1957).
In addition, to further establish a plain error
rule that shifts the burden to the Government to show unobjected to error
did not prejudice the outcome of the case is unprecedented.1
See Wigmore, supra. Certainly, the language of Article
59(a), UCMJ, does not expressly delineate such a burden, nor does it dictate
such a holding by our Court. Mil. R. Evid. 103, Manual for Courts-Martial,
United States (1995 ed.), which is identical to Fed. R. Evid. 103 except
that it has added language to conform to Article 59(a), UCMJ, also does
not justify such burden shifting. Finally, United States v. Olano,
supra, holds to the contrary, despite the majoritys citation in
Powell to that Supreme Court decision.2
Finally, the majoritys suggestion in this
case and in Powell, supra at 465, that the words "affecting
substantial rights" in Fed. R. Crim. P. 52(b) and United States v. Olano,
supra at 734, does not focus on the impact of the error on the outcome
of the case is not well taken. ___ MJ at (5). Justice Brennan in
his concurring in part and dissenting in part opinion in United States
v. Lane, 474 U.S. 438, 455, said contrarily:



For the reasons which follow, I conclude
that the question whether a particular error "affects the substantial rights
of the parties" does not entail a process of classification, whereby some
rights are deemed "substantial" and errors affecting these rights are automatically
reversible. Rather, an error "affects substantial rights" only if it casts
doubt on the outcome of the proceeding. In other words, subject to the
exceptions discussed in Part II (most importantly the exception for constitutional
errors), I read § 2111 and Rule 52(a) to require harmless-error inquiry
for all procedural errors. As none of these exceptions is applicable to
misjoinder in violation of Rule 8, I concur in the Courts result on this
issue.
Reference to whether error "affected the substantial
rights of the parties" was not invented by Congress in 1919. The phrase
was commonly used by courts throughout the 19th century to express the
conclusion that particular claims of error did or did not warrant reversal.
However, as used by these courts, error which "affected the substantial
rights of the parties" was generally understood to refer, not to errors
respecting a particular class of rights, but rather to any error which
affected the fairness of the trial as a whole by calling into question
the reliability of the result. See, e.g., Connors
v. United States, 158 U.S. 408, 411, 414 (1895); Maish v. Arizona,
164 U.S. 599, 602 (1896); Williams v. United States, 168 U.S. 382,
390-398 (1897); American Surety Co. v. Pauly, 170 U.S. 133, 159
(1898); McCabe & Steen Constr. Co. v. Wilson, 209 U.S. 275,
279 (1908); Holmgren v. United States, 217 U.S. 509, 523-524 (1910).
In other words, the statement that an error did not "affect the substantial
rights of the parties" was a way of stating the conclusion that the error
was not prejudicial.



This separate opinion was subsequently cited in
Olano in explaining that such language in Fed. R. Crim. P. 52(b)
means that plain error must also be prejudicial in terms of the outcome
of the case. United States v. Olano, supra at 734.
The bottom line in appellants case is that
his plain error claim with respect to various defects in the post-trial
recommendation must fail. In my view, he has not shown that any error in
this review impacted the sentence approved in this case, nor is such prejudice
manifest. As said in Olano, supra at 741:



In sum, respondents have not met their burden
of showing prejudice under Rule 52(b). Whether the Government could have
met its burden of showing the absence of prejudice, under Rule 52(a), if
respondents had not forfeited their claim of error, is not at issue here.
This is a plain-error case, and it is respondents who must persuade the
appellate court that the deviation from Rule 24(c) was prejudicial.



Moreover, he has not shown that affirmance of
the approved sentence "seriously affect[ed] the fairness, integrity or
public reputation" of these military judicial proceedings, nor is such
a situation manifest in this case. See Johnson v. United States,
supra. Accordingly, I urge the majority to return to mainstream
American jurisprudence and affirm this case on these bases.
FOOTNOTES:
1 This Courts
recent decision in United States v. Finster, 51 MJ 185 (1999), does
not hold that an accused under military plain error law has no burden to
show unobjected to error prejudiced his case. It recognized that "the prejudicial
impact of the error was manifest" in that case and held that the Court
of Criminal Appeals can identify "prejudicial error without regard
to the nature or quality of an accuseds submission on appeal." (Emphasis
added.) Moreover, it clearly stated that "Courts of Criminal Appeals in
appropriate cases may rely on the failure of the accused to identify prejudicial
error as a basis for denying relief. . . ." Id. at 188.
2
In United States v. Olano, 507 U.S. 725, 734-35 (1993), the Supreme
Court discussed Congress shifting the burden on the question of prejudice
from the Government under Fed. R. Crim. P. 52(a) (objected to error) to
the accused under Fed. R. Crim. P. 52(b) (unobjected to error). It does
not suggest in any way that the burden on the question of prejudice from
unobjected to error shifts back to the Government if the accused shows
a certain type of right is violated.


CRAWFORD, Chief Judge (concurring in the result):
I concur in the result. See United
States v. Kho, No. 99-0925, ___ MJ ___ (2000)(Crawford, C.J., concurring
in the result).


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