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

                              No. 201600306
                          _________________________

                  UNITED STATES OF AMERICA
                                   Appellee
                                       v.

                           CHASE R. BARRY
                Lance Corporal (E-3), U.S. Marine Corps
                              Appellant
                       _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

  Military Judge: Lieutenant Colonel Elizabeth A. Harvey, USMC.
    Convening Authority: Commanding Officer, Marine Aviation
       Logistics Squadron 16, MCAS Miramar, San Diego, CA.
Staff Judge Advocate’s Recommendation: Captain John A. Cacioppo,
                                USMC.
   For Appellant: Commander Robert D. Evans, Jr., JAGC, USN.
      For Appellee: Lieutenant Megan P. Marinos, JAGC, USN;
              Lieutenant Robert J. Miller, JAGC, USN.
                       _________________________

                        Decided 28 December 2017
                         _________________________

Before H UTCHISON , F ULTON , and S AYEGH , 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.
                       _________________________

   FULTON, Judge:
   A military judge, sitting as a special court-martial, convicted the
appellant, consistent with his pleas, of one specification of disobeying a lawful
general regulation, and one specification each of wrongful distribution, use,
and manufacture of a controlled substance, in violation of Articles 92 and
                         United States v. Barry, No. 201600306


112a, Uniform Code of Military Justice (UCMJ).1 The military judge
sentenced the appellant to 12 months’ confinement, reduction to paygrade E-
1, and a bad-conduct discharge. The convening authority (CA) approved the
sentence and, in accordance with a pretrial agreement (PTA), suspended
confinement in excess of seven months.
   The appellant raises two assignments of error (AOEs). We find that no
error materially prejudiced the appellant’s substantial rights and we affirm.
                                   I. BACKGROUND
    In exchange for a favorable PTA, the appellant assisted the government
investigation and prosecution of service members suspected of wrongfully
using controlled substances. The appellant’s first AOE alleges that the
government did not keep its end of the PTA. The second AOE alleges that the
staff judge advocate’s recommendation (SJAR) was insufficient because it
contained errors and did not sufficiently address allegations of legal error
raised by the appellant. The facts necessary to resolve these AOEs are set
forth below.
                                    II. DISCUSSION
A. Alleged violation of the PTA
   The appellant alleges that he was prejudiced by the government’s failure
to perform its obligations under the PTA. While we agree that the
government’s performance was not perfect, we find that the appellant was
not prejudiced by any of the government’s failures.
    A PTA is a contract between the accused and the CA.2 Whether the
government has complied with the material terms and conditions of an
agreement presents a mixed question of law and fact.3 Because an appellant
must demonstrate that there is a significant basis in law or fact to overturn
his guilty plea, it falls on the appellant to show that a PTA term was material
to his decision to plead guilty.4 If the government breaches a material term in
a PTA, we may do one of four things: (1) permit the appellant to withdraw
from the PTA; (2) require specific performance; (3) provide alternative relief
with the appellant’s consent; or (4) provide an adequate remedy to cure the
material breach of the PTA.5


   1   10 U.S.C. §§ 892 and 912a (2012).
   2   See United States v. Acevedo, 50 M.J. 169, 172 (C.A.A.F. 1999).
   3   United States v. Lundy, 63 M.J. 299, 301 (C.A.A.F. 2006).
   4   Id. at 301-02.
   5   Id. at 305.

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    In his PTA, the appellant agreed to plead guilty to four drug-related
specifications. He also agreed to cooperate with the government in its
prosecution of two other Marines, Sergeant (Sgt) Soto and Corporal Black, by
submitting to interviews and, if granted immunity, by testifying. In return,
the CA agreed to suspend any adjudged confinement in excess of seven
months if the appellant received a punitive discharge. The CA made other
promises as well. The CA promised to “make all reasonable efforts to
coordinate in advance, fund, and obtain the physical presence of at least one
of” the appellant’s defense counsel at any of the agreed-to interviews or
testimony.6 If reasonable efforts failed, or if scheduling conflicts prevented his
counsel from attending, the appellant agreed to proceed without counsel,
understanding that he would be allowed to contact counsel should the need
arise. Additionally, the CA promised not to confine the appellant at the same
confinement facility as other members who were “affected by [the appellant’s]
cooperation with [the Naval Criminal Investigative Service].”7 The CA also
promised that the government would make its “best effort” to confine the
appellant at either the Camp Pendleton or Marine Corps Air Station
Miramar Brig.8
    The appellant alleges that the government violated the PTA in two ways.
First, his attorney was not present while he gave testimony against Sgt Soto.
The appellant’s trial defense counsel had executed change-of-station orders to
the East Coast shortly after the appellant’s trial, and only attended
telephonically after the appellant was already undergoing cross-examination.
Second, the appellant was confined with Sgt Soto and Lance Corporal (LCpl)
Hicks, both of whom were affected by the appellant’s cooperation.
   The government concedes that, because of the trial counsel’s oversight,
the appellant’s counsel did not hear the appellant’s direct testimony against
Sgt Soto. During a recess, the two trial counsel in that case realized their
error and called the appellant’s defense counsel, enabling her to hear some of
the cross-examination. The government adds that the appellant’s counsel had
been present telephonically during several—but not all—pretrial interviews.
   As for the government’s promise not to confine the appellant with
Marines affected by his cooperation, the government concedes that a clerical
error caused the appellant to be confined in the Miramar brig with the two
Marines. But according to the trial counsel’s affidavit, when given an
opportunity to transfer to a different brig, the appellant preferred to remain
at Miramar. In addition to the trial counsel’s affidavit, the government has

   6 Appellate   Exhibit I at ¶ 16(f).
   7   Id. at ¶ 16(h).
   8   Id.

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presented emails from the trial defense counsel to the Miramar brig staff. In
the emails, the appellant’s counsel reminded brig staff of the appellant’s role
in other inmates’ cases. But she does not ask for the appellant’s transfer.
Rather, in the email, the appellant’s counsel seems to acquiesce to the
appellant’s confinement at Miramar. These emails tend to corroborate the
trial counsel’s assertion that the appellant preferred to stay in the Miramar
brig rather than be transferred.
   We first must decide whether the relevant terms of the PTA were
material. We do not believe that the government’s failure to telephonically
produce the appellant’s defense counsel during his direct examination
constitutes a material breach. The appellant’s counsel had already been
present for pretrial interviews and would have known the substance of the
appellant’s testimony. The appellant apparently did not remind anyone to
notify his counsel at the beginning of his testimony. There is no evidence that
the appellant’s direct testimony resulted in any detriment to the appellant.
We find, therefore, that this oversight was not a material breach.
    Regarding the government’s promise not to confine the appellant with
members affected by his cooperation, the government argues that the
appellant’s decision to remain confined at Miramar after initially being
confined there in error demonstrates that this term was also not material.
We agree. Although the government’s breach was raised by the appellant’s
counsel as a matter in clemency, the fact the appellant declined to be
transferred away from other members affected by his cooperation convinces
us that this was not a material term.9
B. Alleged error in the SJAR
    The appellant alleges that he was prejudiced by the SJAR because it
contained errors and did not sufficiently address allegations of legal error he
raised.
    On 29 April 2016, the appellant’s counsel sent a clemency request to the
staff judge advocate (SJA). About two months later, the SJA completed the
SJAR, which was served on the appellant in confinement. Without consulting
counsel, the appellant waived his right to submit a response to the SJAR. On
23 June 2016, the CA acted on the appellant’s case. The next day, trial
defense counsel sent an additional clemency request, which included a
response to the SJAR alleging legal error. This letter pointed out that the
SJAR had an incomplete and mistaken statement of the law (apparently
because of a typographical error) and argued that the appellant’s earlier
waiver of the right to submit matters was ineffective. The letter also argued


   9   See Lundy, 63 M.J. at 303-04.

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that the SJAR tended to unfairly minimize the appellant’s cooperation with
the government.
    In an addendum to the SJAR, the SJA fixed the typographical error and
presented the appellant’s new matters to the CA. Ultimately, the appellant
sent a total of four clemency requests to the CA, arguing for clemency and
alleging legal error. In three addenda to the SJAR, the SJA responded by
correcting some errors, disagreeing with others, and recommending that the
appellant’s sentence be approved in accordance with the PTA. After
considering the four clemency requests, the SJAR, and the three addenda to
the SJAR, the CA withdrew his initial action and substituted a new one,
again approving the sentence in accordance with the PTA. The appellant now
alleges that the SJA’s responses contained in three addenda to the original
SJAR are unfairly dismissive of the appellant’s submissions.
     To prevail on a claim of post-trial error, an appellant must show that the
process was affected by an error and make a “colorable showing of possible
prejudice.”10 We find that the appellant has not met this burden.
    “The essence of post-trial practice is basic fair play—notice and the
opportunity to respond.”11 Although the post-trial processing of this case was
sloppy, the appellant’s counsel took full advantage of her opportunity to point
out to the CA the errors in, and her disagreements with, the SJAR. We are
confident that the appellant was able to make his case sufficiently to the CA,
and that none of the post-trial errors resulted in a colorable showing of
possible prejudice.
                                   III. CONCLUSION
   The findings and sentence are affirmed.
   Senior Judge HUTCHISON and Judge SAYEGH concur.


                                              For the Court



                                              R.H. TROIDL
                                              Clerk of Court




   10   United States v. Chatman, 46 M.J. 321 323-24 (C.A.A.F. 1997).
   11   United States v. Leal, 44 M.J. 235, 237 (C.A.A.F. 1996).

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