                         UNITED STATES, Appellee

                                         v.

              Donavon F. FREDERICKSON, Airman Basic
                    U.S. Air Force, Appellant

                                  No. 04-0720
                           Crim. App. No. 35442

       United States Court of Appeals for the Armed Forces

                           Argued March 1, 2006

                          Decided April 7, 2006

EFFRON, J., delivered the opinion of the Court, in which GIERKE,
C.J., and CRAWFORD, BAKER, and ERDMANN, JJ., joined.


                                     Counsel

For Appellant: Major Sandra K. Whittington (argued); Lieutenant
Colonel Mark R. Strickland, Lieutenant Colonel Carlos L. McDade,
and Major Terry L. McElyea (on brief).

For Appellee: Major Steven R. Kaufman (argued); Lieutenant
Colonel Robert V. Combs, Lieutenant Colonel Gary F. Spencer, and
Major Heather L. Mazzeno (on brief); Major Michelle M. Lindo
McCluer.



Military Judge:    Dawn R. Eflein



            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Frederickson, No. 04-0720/AF


    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 conspiracy to open and steal mail matter, unlawful entry with

intent to steal mail matter, unlawful opening of mail matter,

and unlawful opening and stealing mail matter (four

specifications), in violation of Articles 81, 130, and 134,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 881, 930,

934 (2000).    The adjudged and approved sentence included a

dishonorable discharge, confinement for twenty-two months,

forfeiture of all pay and allowances, and a $15,000 fine.                 The

United States Air Force Court of Criminal Appeals affirmed in an

unpublished opinion.      United States v. Frederickson, No. ACM

35442, 2004 CCA LEXIS 181, 2004 WL 1539555 (A.F. Ct. Crim. App.

June 30, 2004).1

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

issue:



1
  The unpublished opinion of the Court of Criminal Appeals contains the
following footnote concerning Appellant’s name:

      The [A]ppellant’s name is spelled in various ways throughout
      the record of trial: Donovan K. Frederickson, Donavon F.
      Frederickson, Donovan F. Frederickson, and Donavon K.
      Frederickson. On the record, the [A]ppellant told the
      military judge his legal name is Donavon K. Fredrickson, but
      acknowledged that his military records all reflect Donavon F.
      Frederickson.

To be consistent with the captioning of this case by the court below, we
shall use the name “Donovan F. Frederickson.


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United States v. Frederickson, No. 04-0720/AF


            WHETHER THE AIR FORCE COURT OF CRIMINAL
            APPEALS ERRED IN FINDING THAT NONE OF THE
            STAFF JUDGE ADVOCATE’S COMMENTS IN HIS
            ADDENDUM TO THE STAFF JUDGE ADVOCATE’S
            REVIEW CONSTITUTED NEW MATTER.2

For the reasons set forth below, we affirm.



                              I.   BACKGROUND

                     A. POST-TRIAL RECOMMENDATIONS
                     AND THE OPPORTUNITY TO RESPOND

      The findings and sentence of a court-martial are subject to

review by the convening authority.         Article 60, UCMJ, 10 U.S.C.

§ 860 (2000).    If the case was tried before a general court-

martial or before a special court-martial in which a bad-conduct

discharge could be adjudged, the convening authority must obtain

the recommendation of his or her staff judge advocate (SJA)

before taking action on the results of the trial.            Rule for

Courts-Martial (R.C.M.) 1106(a); see Article 60(d), UCMJ.               Prior

to submitting the recommendation to the convening authority, the

SJA must serve it on the accused and defense counsel for the

opportunity to comment.      R.C.M. 1106(f)(1); R.C.M. 1106(f)(4);

see Article 60(d), UCMJ; see also Article 60(b), UCMJ; R.C.M.




2
  United States v. Frederickson, 62 M.J. 367 (C.A.A.F. 2005). In an earlier
order, we granted review of an issue concerning the propriety of the adjudged
fine. United States v. Frederickson, 61 M.J. 10 (C.A.A.F. 2005). Under our
subsequent decision in United States v. Stebbins, 61 M.J. 366, 370-75
(C.A.A.F. 2005), the fine was not improper.


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United States v. Frederickson, No. 04-0720/AF


1105 (allowing the accused the opportunity to submit matters to

the convening authority).

     After the defense has had an opportunity to comment, the

SJA may supplement the recommendation in an addendum.      R.C.M.

1106(f)(7).   If the addendum contains “new matter,” the addendum

must be served on the accused and defense counsel, who then have

an opportunity to comment on the addendum.   Id.; R.C.M.

1105(c)(1).   See United States v. Catalani, 46 M.J. 325, 326

(C.A.A.F. 1997).

     As we noted in Catalani, our Court has not attempted to

develop a comprehensive definition of “new matter.”   Id. at 326.

The nonbinding Discussion accompanying R.C.M. 1106(f)(7)

provides a number of examples:

            “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.

     The failure to serve new matter on the defense is not

prejudicial if the new matter is “neutral, neither derogatory

nor adverse to appellant, or if it is so trivial as to be

nonprejudicial.”   Catalani, 46 M.J. at 326 (citing United States

v. Jones, 44 M.J. 242, 244 (C.A.A.F. 1996)) (quotation marks

omitted).   “[I]f an appellant makes some colorable showing of



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United States v. Frederickson, No. 04-0720/AF


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.”     Id. at 327 (quoting Jones, 44 M.J. at

244) (quotation marks omitted).     The burden is on an appellant

to “demonstrate prejudice by stating what, if anything, would

have been submitted to deny, counter, or explain the new

matter.”    United States v. Chatman, 46 M.J. 321, 323 (C.A.A.F.

1997) (quotation marks omitted).       Although the threshold is

“low,” Catalani, 46 M.J. at 327, an appellant must demonstrate

that the proffered response to the unserved addendum “could have

produced a different result.”     United States v. Brown, 54 M.J.

289, 293 (C.A.A.F. 2000).

            B.   POST-TRIAL PROCEEDINGS IN APPELLANT’S CASE

     Following trial, the deputy SJA prepared a post-trial

recommendation to the convening authority under R.C.M. 1106,

which he served on defense counsel.      The recommendation noted

that Appellant pleaded guilty pursuant to a pretrial agreement.

In summarizing the offenses, the deputy SJA noted that Appellant

committed the offenses with a coworker at a military mail

facility.    Appellant and his coworker entered a secured building

without authority on several occasions at night, opened sealed

mail, removed over $15,000 worth of electronic equipment and

jewelry, and kept most of the items in the coworker’s dorm room.


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United States v. Frederickson, No. 04-0720/AF


The deputy SJA noted that Appellant admitted to stealing the

property in order to pawn it.

     Following receipt of the deputy SJA’s recommendation,

defense counsel submitted a request for clemency to the

convening authority, which included a memorandum from Appellant

requesting clemency.   The defense asked the convening authority

to reduce the adjudged dishonorable discharge to a bad-conduct

discharge and to disapprove the $15,000 fine.   Defense counsel

noted that a dishonorable discharge is the “worst type” of

discharge that an airman could receive.   The defense counsel

asked the convening authority to view Appellant’s misconduct as

the mistake of a person who simply took “advantage of an

opportunity in his workplace,” which defense counsel suggested

was not as serious as the “depravity” of a person who “knowingly

inflicts harm on others or puts lives and safety in danger.”

Appellant also asked the convening authority to disapprove the

dishonorable discharge so that he would not be placed “in the

same category with murderers, rapists, armed robbers, and

individuals like that.”   Defense counsel noted that a bad-

conduct discharge would have serious consequences for Appellant

but argued that it would be “more proportionate [to] his

actions.”

     With respect to the fine, defense counsel noted that the

stolen items were recovered from the dorm rooms, that there was


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United States v. Frederickson, No. 04-0720/AF


no evidence that Appellant profited from the thefts, and that

the fine was out of proportion to the amount that could have

been obtained from a pawn shop had they actually pawned the

stolen items.   Defense counsel also stated that Appellant came

from a family of limited means, so that the family would be

faced with the difficult choice of either suffering financial

hardship in order to pay the fine or standing by while Appellant

endured an additional eight months of contingent confinement for

not paying the fine.

     The deputy SJA then prepared an Addendum, which was

endorsed by the SJA.   The Addendum specifically directed the

convening authority’s attention to the submissions by Appellant

and defense counsel, and then provided a detailed summary of the

defense request for clemency.    The Addendum set forth the

defense position that there was no evidence that Appellant and

his coworker profited from the thefts, that the property was

recovered from the dorm rooms, and that the $15,000 fine was out

of proportion to whatever profits might have been realized if

the stolen items had been pawned.     The Addendum also stated that

Appellant’s family would suffer from either having to pay the

fine or watching him spend additional time in jail under the

contingent confinement clause.

     After describing the defense submission, the deputy SJA

offered a number of observations:     (1) Appellant would not be


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United States v. Frederickson, No. 04-0720/AF


asking for a change in discharge if he had thought of the

consequences before he committed the offenses; (2) issuance of a

dishonorable discharge is not limited to cases of violence, but

instead is determined under the circumstances of each case; and

(3) the fine was appropriate in view of the value of the

property.   The deputy SJA added:

            In arguing the accused didn’t profit from
            his crimes because he didn’t turn the items
            he stole into cash before he was caught (the
            accused told the judge he saw the thefts as
            a way to repay a large sum of money he owed
            his grandmother), defense counsel ignores
            the fact the accused had the benefit of
            valuable property he didn’t pay for;
            property that had a value of approximately
            $15,000. Therefore, there is a clear nexus
            between the fine the accused received and
            the crimes he committed. While it appears
            the accused’s family may lend him their
            financial support to once again bail him out
            of a situation of his own making, that
            shouldn’t dissuade you from approving what
            is an otherwise appropriate consequence of
            the accused’s misconduct. Not approving the
            adjudged fine would give the accused a
            windfall he doesn’t deserve.

     The SJA did not serve the Addendum on the defense.     As a

result, the defense did not have an opportunity to comment on

the Addendum before the convening authority approved the

sentence, including the dishonorable discharge, the fine, and

the contingent confinement.

     On appeal, the defense has submitted affidavits from trial

defense counsel and Appellant describing what they would have



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United States v. Frederickson, No. 04-0720/AF


said if they had been given the opportunity to comment on the

Addendum.   According to defense counsel and Appellant, the

defense would have responded by:       (1) emphasizing that a bad-

conduct discharge was more appropriate than a dishonorable

discharge in view of the “significant difference between a young

airman who succumbs to the temptation offered by inadequate

security at his workplace and an Air Force member who

intentionally causes physical harm to another or who directly

threatens the security of individuals by entering and stealing

from their homes”; (2) Appellant regretted his misconduct,

confessed, accepted responsibility, and learned how to avoid

getting into trouble; (3) Appellant did not “benefit” from the

stolen property because there was no evidence that any of the

property was used, damaged, degraded, or sold; (4) the property

was recovered in good condition; (5) the $15,000 retail price

was “greatly disproportionate to whatever benefit AB [Airman

Basic] Frederickson might have derived”; (6) the $15,000 fine

would impose significant loss and anguish on the innocent

members of Appellant’s family; and (7) there was no “windfall”

for Appellant because he did not profit and a bad-conduct

discharge would still impose a significant punishment on him.




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United States v. Frederickson, No. 04-0720/AF

                          II.   DISCUSSION

     In the present appeal, Appellant contends that the Addendum

contained new matter because it implied incorrectly that

Appellant was unrepentant, that he profited financially from the

thefts, and that he personally used the stolen items.   In

addition, Appellant contends that the tone of the Addendum

constituted new matter because it characterized Appellant’s

conduct in a derogatory and condescending manner.

     For purposes of this appeal, we shall assume, without

deciding, that the implications and tone of the Addendum

constituted “new matter” that should have been served on the

defense.   To determine whether Appellant has made a colorable

showing of possible prejudice, we must consider whether the

proffered defense responses to the unserved Addendum could have

produced a different result by the convening authority.    See

supra Section I.A.

     The proffered defense responses reiterate what the defense

previously submitted to the convening authority during the post-

trial proceedings.   While there may be cases in which loss of

the opportunity for such repetition is sufficient to demonstrate

prejudice, this is not such a case.   Here, the Addendum prepared

by the deputy SJA provided a detailed summary of the defense

submission.   In that context, the likelihood that the convening

authority would have misinterpreted the deputy SJA’s comments in


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United States v. Frederickson, No. 04-0720/AF

the manner suggested by the defense was marginal, at best.

Under these circumstances, the proffered responses, which relied

on previously submitted material, were insufficient to meet the

defense burden of demonstrating that service of the Addendum on

the defense could have produced a different result from the

convening authority.   See supra Section I.A.

     Although we conclude that Appellant has not established the

requisite showing of prejudice in this case, we emphasize that

SJAs can preclude unnecessary appellate litigation by providing

convening authorities with addenda only when necessary and by

broadly construing the term “new matter” for purposes of

providing servicemembers with an opportunity to respond to

addenda.   See United States v. Leal, 44 M.J. 235, 237 (C.A.A.F.

1996).



                         III.   CONCLUSION

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




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