

   
   
   
   U.S. v. Finster



UNITED STATES, Appellant
v.
Robert L. FINSTER, Master-at-Arms Second Class
U.S. Navy, Appellee
 
No. 98-5032
Crim. App. No. 97 1882
 
United States Court of Appeals for the Armed
Forces
Argued February 10, 1999
Decided July 30, 1999
EFFRON, J. delivered the opinion of the
Court, in which COX, C.J., and SULLIVAN and GIERKE, JJ., joined. COX, C.J.,
filed a concurring opinion. CRAWFORD, J., filed a dissenting opinion.

Counsel
For Appellant: Lieutenant
James E. Grimes, JAGC, USNR (argued); Colonel K. M. Sandkuhler,
USMC, Commander D. H. Myers, JAGC, USN, and Commander E. E. Irvin,
JAGC, USN (on brief).
For Appellee: Lieutenant Commander
R. C. Klant, JAGC, USN (argued).
Amicus Curiae Urging Reversal:
Captain Steven D. Dubriske (argued); Colonel Anthony P. Dattilo
and Major Ronald A. Rodgers (on brief) - For Appellate Government
Division, USAF.
Military Judge: Glenn N. Gonzalez
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.

Judge EFFRON delivered the opinion of the Court.
Pursuant to his pleas, appellee was convicted
by a special court-martial before a military judge alone, of attempting
to sell government property, conspiracy to commit larceny of government
property, suffering wrongful disposition of government property, larceny
of government property, and housebreaking, in violation of Articles 80,
81, 108, 121, and 130, Uniform Code of Military Justice, 10 USC §§
880, 881, 908, 921, and 930, respectively. He was sentenced to a bad-conduct
discharge, confinement and forfeiture of $600.00 pay per month for 3 months,
and reduction to the lowest enlisted grade. The convening authority approved
the sentence.
In an unpublished opinion, the Court of Criminal
Appeals (one judge dissenting) set aside the convening authoritys action.
The convening authority, instead of following the requirement in Article
60(d), UCMJ, 10 USC § 860(d)(1983), that he obtain and consider
the written recommendation of his staff judge advocate (SJA) or legal officer,
had acted on the basis of a recommendation prepared by an enlisted person
who was not qualified to act as an sja or legal officer.*
The Judge Advocate General certified the case
to this Court and asked us to review the following issue:

WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL
APPEALS ERRED WHEN IT RELIED UPON ITS EARLIER DECISION IN UNITED STATES
V. CUNNINGHAM, 44 M.J. 758 (N.M.Ct.Crim.App. 1996) IN FINDING THAT
PLAIN ERROR CAN EXIST WITHOUT A SHOWING OF PREJUDICE BY THE APPELLANT.

I
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
United States v. Russo, 11 USCMA 352, 29 CMR 168 (1960).
This power dates from the earliest Articles of War and Articles for the
Government of the Navy. See Article of War 47 (1917), reprinted
in Manual for Courts-Martial, U.S. Army, 1917, at 316; Art.
54(a), Articles for the Government of the Navy (1926), reprinted
in Naval Courts and Boards, 1937, at 468; see also Art. 89,
Articles for the Government of the Armies of the United States, 2 Stat.
359 (1806), reprinted in W. Winthrop, Military Law and Precedents 984 (2d
ed. 1920 Reprint); Art. 49, Act for the Government of the Navy, 1 Stat.
709 (1799). It is based upon the responsibility of a military commander
for the state of discipline and justice the command.
Congress has insisted that the convening authority,
prior to acting on the record of any general court-martial or any special
court-martial in which the sentence includes a bad-conduct discharge, "shall
obtain and consider the written recommendation of his staff judge advocate
or legal officer." Art. 60(d); see RCM 1106, Manual for Courts-Martial,
United States (1998 edition). Congress underscored the critical
role of the SJA in the post-trial process by establishing criteria that
disqualify a person from acting as an SJA in designated situations. Art.
6(c), UCMJ, 10 USC § 806(c). Likewise, our cases have emphasized the
importance of the SJA recommendation by granting relief in cases in which
the SJA was disqualified because of conflicting interests. See United
States v. Lynch, 39 MJ 223 (CMA 1994); United States v. Rice,
33 MJ 451 (CMA 1991); United States v. Engle, 1 MJ 387 (CMA 1976).
When Congress streamlined the post-trial process
in the Military Justice Act of 1983, Pub. L. No. 98-209, 97 Stat. 1396-97,
by eliminating the need for a detailed post-trial legal analysis of the
case by the SJA, the legislation retained the requirement for an SJA recommendation
prior to action by the convening authority. See S. Rep. No. 53,
98th Cong., 1st Sess. 7 (1983). During hearings before a subcommittee of
the Senate Armed Services Committee, the General Counsel of the Department
of Defense, in response to a question about what role would be played by
the SJA under the new legislation, stated:



The staff judge advocate, as the convening
authority's senior advisor on military justice matters, is the person best
qualified to make a recommendation to the convening authority as to how
he should exercise his powers.



Hearings on S. 2521 Before the Subcomm. on
Manpower and Personnel of the Senate Armed Services Comm., 97th Cong.,
2d Sess. 87 (1982) (response by Mr. Taft to question from Senator Exon).
In its report on the legislation, the Committee stated that the SJA not
only would compile designated materials, but would exercise significant
"discretion" as to the types of additional matters that should be brought
to the convening authority's attention. Further, the SJA would "include
a specific recommendation as to the sentence, along with any appropriate
recommendations as to the findings." Emphasizing the importance of the
post-trial recommendation, the Committee observed that the post-trial recommendation
would be provided by "the convening authority's principal advisor on military
justice matters." S. Rep. No. 53, supra at 20; accord H.R.Rep.
No. 549, 98th Cong., 1st Sess. 15 (1983).
The court below reflected these considerations
in its en banc decision in United States v. Cunningham, 44 MJ 758
(1996), where it noted:



Because of the significance of the convening
authority's action in the military justice system, the recommendation of
the staff judge advocate or legal officer to the convening authority is
also enormously important, for the better the convening authority is advised,
the more fairly and justly will that authority exercise command discretion
in acting on a case. United States v. Boatner, 20 U.S.C.M.A. 376,
43 C.M.R. 216 (1971).



The court added:



Complete and accurate advice in each case
provides a convening authority with the guidance necessary to carry out
the responsibilities Article 60(d), UCMJ, imposes. The recommendation
is much more than a ministerial action or mechanical recitation of facts
concerning the trial. Its heart and soul exist in the judgment of the drafter
as to whether the adjudged sentence is appropriate and whether clemency
is warranted.



The court further observed that the policy requiring
preparation of the recommendation by judge advocates or legal officers
reflected not only the "formal education" of such officers, but also the
fact that, "by virtue of their status as commissioned officers, they are
charged with unique responsibility and stricter accountability [than enlisted
personnel], and hold the special trust and confidence of the President."
44 MJ at 763.

II
The recommendation to the convening authority
in the present case was not prepared by an SJA or legal officer, but by
Machinist's Mate Chief Petty Officer R. Both parties agree that such an
enlisted person was not qualified under the statute to provide a post-trial
recommendation to the convening authority. The Government suggests in its
brief that appellee, by not objecting to the post-trial recommendation,
waived any objection to its preparation by a person not qualified to serve
as an SJA or legal officer.
The certified issue asks whether
the court below erred by "finding that plain error can exist without
a showing of prejudice by the appellant." In the absence of objection,
we analyze a claim of error under the plain error standard of United
States v. Powell, 49 MJ 460, 463, 465 (1998); that is, whether there
was "error"; whether it was "plain"; and whether it materially prejudiced
a substantial right of the accused. Art. 59(a), UCMJ, 10 USC §
859(a).
In the present case, all criteria are met.
The preparation of the post-trial recommendation by an enlisted person
constituted error under Article 60(d). Given the use in Article 60(d) of
the well-understood terms "staff judge advocate" and "legal officer," the
error in obtaining a recommendation from a person who did not meet the
statutory criteria was "plain." In light of the critical role assigned
by Congress to the SJA or legal officer in advising the convening authority
in that officer's exercise of discretion, the failure to obtain a recommendation
from a qualified person affected the substantial rights of the accused.
In the present case, where the accused submitted clemency materials to
the convening authority, the convening authority's reliance on a recommendation
from an unqualified person materially prejudiced the right of the accused
to have his submission considered by a qualified SJA or legal officer prior
to the convening authority's action, particularly in view of the low threshold
for a showing of prejudice with respect to post-trial recommendation matters.
See United States v. Wheelus, 49 MJ 283, 289 (1998). We need
not address at this time whether prejudicial plain error could be found
in another case absent identification of specific matter that would have
been considered by the convening authority, such as a post-trial submission
by the accused or presentation of similar matter during the sentencing
proceeding at trial.
The certified issue asks whether the court
below erred "in finding that plain error can exist without a showing of
prejudice by the appellant." We answer that question in the negative. The
Court of Criminal Appeals may address prejudicial errors on its own motion
and is not limited to the matters, if any, discussed in appellee's submission
to that court. We note that under Article 66(c), UCMJ, 10 USC §
866(c) (1994), the Courts of Criminal Appeals "may affirm only such findings
of guilty, and the sentence or such part or amount of the sentence, as
it finds correct in law and fact and determines, on the basis of the entire
record, should be approved." Although the 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, it is well established that Article
66(c) establishes an affirmative obligation on those tribunals to review
the record and reach their own independent conclusion as to whether the
findings and sentence should be affirmed. See United States v.
May, 47 MJ 478 (1998); United States v. Baker, 28 MJ 121 (CMA
1989); United States v. Turner, 25 MJ 324 (CMA 1987); United
States v. Jones, 1 USCMA 302, 3 CMR 36 (1952). Nothing in either Article
66(c) or Article 59(a) precludes the Courts of Criminal Appeals from identifying
prejudicial error without regard to the nature or quality of an accused's
submission on appeal.
In the present case, the prejudicial impact
of the error was manifest, so the court's order for a new post-trial action
falls well within the broad discretion of the Courts of Criminal Appeals
to determine "whether an error is harmless, whether corrective action should
be taken by the Court of Criminal Appeals, or whether the case should be
returned to the convening authority for new action." United States v.
Cook, 46 MJ 37, 39 (1997).
The Court of Criminal Appeals addressed the
prejudicial impact of the error in this case by citing its decision in
Cunningham, which stated that this type of "error seriously affects
the fairness, integrity and public reputation of the proceedings." The
Cunningham opinion noted that use of an unqualified person



to fulfill the responsibility that by statute
is vested in a staff judge advocate or commissioned legal officer strikes
at the core of the integrity and reputation of military justice in the
naval service. . . . [E]very appellant in the naval service should be able
to expect that as a matter of fairness, his or her case will be
reviewed by and have a post-trial recommendation from a statutorily qualified
officer.



44 MJ at 764. In view of such a fundamental flaw
in the post-trial process, the court correctly returned the present case
for a new SJA recommendation and convening authoritys action.
The decision of the Court of Criminal Appeals
is consistent with the position we articulated in United States v. Lee,
50 MJ 296, 298 (1999), where we noted:



Errors in posttrial processing reflect defective
staff work. Such errors are fundamentally different from the errors resulting
from the intense, dynamic atmosphere of a trial. We do not accept the notion
that commanders are well served by staff work that is incomplete or inaccurate.



Likewise, we do not accept the notion that commanders
are well served when their staff work is assigned to statutorily unqualified
personnel. In Lee, we stated that



records that come to the Courts of Criminal
Appeals with defective staff work are simply not ready for review. When
such errors are brought to . . . the attention of the Court of Criminal
Appeals, they should be returned promptly to the convening authority for
preparation of a new SJA recommendation and action.



Id. In the present case, the Court of Criminal
Appeals acted in accordance with the Code and applicable case law.

III
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals ordering a new convening authoritys action
is affirmed.
FOOTNOTE:
* See Art.
1(12), UCMJ, 10 USC § 801(12) ("The term legal officer means any
commissioned officer . . . designated to perform legal duties for a command.")
 
 
COX, Chief Judge (concurring):
I agree with my colleague's opinion. I write
only to make a small point.
In my judgment every appellate court, indeed
trial courts, do not have to accept incomplete or sloppy work. I would
never require a showing of "prejudice" before sending a case back to a
convening authority to fix administrative errors in the record. For example,
if a convening authority forgets to sign the document approving the sentence,
does that mean we would have to allow the accused to go free or be retried?
Personally, I dont think so. Just fix it.
 
 
CRAWFORD, Judge (dissenting):
I dissent because I disagree with the majoritys
analysis of whether the error prejudiced a substantial right of appellee.
Based on the charged offenses, there is no likelihood that the error affected
his substantial rights. United States v. Powell, 49 MJ 460 (1998);
see also United States v. Johnson-Saunders, 48 MJ
74, 75-76 (1998) (Crawford, J., dissenting); United States v. Edwards,
45 MJ 114, 117-18 (1996) (Crawford, J., dissenting). This is not a case
where we should presume prejudice. To say that any reasonable convening
authority might suspend or set aside the discharge or reduce confinement
or forfeitures only if the convening authority is advised by a statutorily-qualified
person under these circumstances ignores the totality of the evidence surrounding
appellee's offenses, as well as the procedural disposition of the case.
The court below does not have the authority simply to order a new action
by presuming that error affected the substantial rights of the defendant.
See United States v. Hasting, 461 U.S. 499 (1983).
Appellate review is hindered by incomplete
or sloppy trial and post-trial work, and an appellate court should not
be forced to accept such a record. However, there is a difference between
an exercise of supervisory authority and a finding of plain error where
no showing of prejudice has been made. See United States v. Cook,
46 MJ 37, 39 (1997), citing United States v. Griffin, 8 USCMA 206,
207, 24 CMR 16, 17 (1957). Cf. United States v. Smith, 36
MJ 455, 457 (CMA 1993)(this Court exercised "supervisory jurisdiction").
In Griffin, we said, "Sometimes error can best be cured by returning
the case to the level of proceedings at which the error occurred; in other
instances, the reviewing authority, by the exercise of its own powers,
can effectively eliminate the harmful consequences of the error in earlier
proceedings...." 8 USCMA at 207, 24 CMR at 17. The precedents set by following
one course rather than the other may vary greatly, even where the ultimate
outcomes seem similar.
While the majority focuses on the nature of
the right affected and characterizes this as "a fundamental flaw in the
post-trial process," ___ MJ at (11), it does not recognize that
where there is a mistake in the SJA's recommendation -- either in the substance
of the recommendation or in the author -- the defense counsel and the accused
have a chance to comment on legal errors in the recommendation. Once a
comment is made, the SJA may simply agree or not agree with the comment.
RCM 1106(d)(4); see, e.g., United States v. Thompson,
26 MJ 512 (ACMR), pet. denied, 27 MJ 403 (1988). Either way,
an accuseds comments are before the convening authority. Here, defense
counsel, in submitting an extensive clemency package to the convening authority,
did not object to the author of the SJA recommendation though his inadequate
rank was obvious. This failure to object or comment is evidence that there
was no impact on a substantial right. Further, appellee has failed to make
any showing to the contrary.
As we indicated in United States v. Reist,
50 MJ 108 (1999), errors that are known at the time of pretrial and trial
proceedings are waived where not challenged contemporaneously. However,
where the error is not known, such as in United States v. Dinges,
49 MJ 232 (1998) and United States v. Edwards, supra, it
is not waived. But our cases have been anything but clear on waiver. See
2 F. Gilligan & F. Lederer, Court-Martial Procedure § 24-64.20
(1991 & 1998 Supp.).
For all of the foregoing reasons, I dissent.

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