                         UNITED STATES, Appellee

                                     v.

               Manuela Del Carmen SCOTT, Senior Airman
                      U.S. Air Force, Appellant

                             No. 07-0597

                          Crim. App. No. 36514

        United States Court of Appeals for the Armed Forces

                        Argued December 10, 2007

                       Decided February 13, 2008

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

                                  Counsel

For Appellant: Captain Anthony D. Ortiz (argued); Lieutenant
Colonel Mark R. Strickland (on brief).

For Appellee: Captain Nicole Wishart (argued); Colonel Gerald
R. Bruce, Colonel George F. May, and Major Matthew S. Ward (on
brief).

Military Judge:     William A. Kurlander




THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Scott, 07-0597/AF


     Judge RYAN delivered the opinion of the Court.

     Appellant was convicted at a general court-martial,

pursuant to her pleas, of one specification of conspiracy and

one specification of wrongful possession of cocaine with intent

to distribute, in violation of Articles 81 and 112a, Uniform

Code of Military Justice (UCMJ), 10 U.S.C. §§ 881, 912a (2000).

Contrary to her pleas, a panel of officers convicted Appellant

of one specification of using her employment to gain access to

Air Force records that contained individually identifiable

information, which Appellant willfully disclosed and offered for

sale, in violation of Article 134, UCMJ, 10 U.S.C. § 934 (2000).

The panel sentenced Appellant to a dishonorable discharge,

confinement for five years, forfeiture of all pay and

allowances, a fine of $4,000.00, and reduction to E-1.   The

convening authority approved the adjudged sentence.   The Air

Force Court of Criminal Appeals (CCA) affirmed the findings, but

found Appellant’s sentence inappropriately severe, reassessed

it, and reduced confinement to four years.   United States v. Del

Carmen Scott, No. ACM 36514, 2007 CCA LEXIS 131, at *4, 2007 WL

1052498, at *2 (A.F. Ct. Crim. App. March 28, 2007)

(unpublished).

     We granted Appellant’s petition on the following issue:

     WHETHER THE ADDENDUM TO THE STAFF JUDGE ADVOCATE’S
     RECOMMENDATION CONTAINS “NEW MATTER” NOT PROVIDED TO


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United States v. Scott, 07-0597/AF


       DEFENSE COUNSEL FOR COMMENT, NECESSITATING A NEW
       CONVENING AUTHORITY ACTION IN THIS CASE.1

                       I.   Factual Background

       Appellant was a participant in what she thought was a

cocaine trafficking ring.    It was actually an undercover sting

operation conducted by the Federal Bureau of Investigation

involving several servicemembers.

       After Appellant was convicted, the acting staff judge

advocate prepared a post-trial recommendation (SJAR) for the

convening authority, which was properly served on defense

counsel.    In response, trial defense counsel submitted a

clemency request to the convening authority on behalf of

Appellant.    The clemency request asserted, among other things,

that many of the officer members likely knew that Appellant was

the first Airman to be tried for offenses related to the sting

operation.    It further asserted that the members may have given

an overly harsh sentence to Appellant “so as not to set a

precedent of lenience knowing other cases would follow.”

       By this time, the acting staff judge advocate had been

replaced by a new staff judge advocate (SJA).    The SJA

supplemented the recommendation to the Convening Authority in an

Addendum to the SJAR (Addendum), which addressed Appellant’s




1
    65 M.J. 321 (C.A.A.F. 2007).
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United States v. Scott, 07-0597/AF


request for clemency.   The Addendum addressed the

appropriateness of Appellant’s sentence as follows:

     3. c. The Defense’s “purpose of sentencing” position
     largely questions the utility of the length of confinement
     as it pertains to the rehabilitation of SrA Scott. SrA
     Scott did present a lot of character letters attesting to
     her great rehabilitative potential. However, the facts of
     this case fully support the adjudged sentence. SrA Scott
     was found guilty of conspiring to and wrongful possession
     of cocaine with the intent to distribute, which carried a
     maximum sentence of confinement for 30 years. The sentence
     was adjudged by a panel of officer members who, after
     having the benefit of personally hearing all of the
     evidence in her case, determined that 5 years of
     confinement was appropriate given the circumstances.

     4. Undoubtedly this is a very unfortunate case for SrA
     Scott, her family, friends, and the Air Force. The
     clemency request highlights an Airman that had great
     promise in the Air Force. In the end, the members
     themselves had an opportunity to hear all of the evidence
     presented in this case. In fact, prior to reaching its
     sentence, SrA Scott personally spoke to the panel. After
     hearing all the evidence, the panel sentenced her to 5
     years of confinement, a dishonorable discharge, reduction
     to E-1, total forfeitures, and $4,000 fine. Based upon the
     severity of her crimes and the above comments, I recommend
     that you approve the findings and the sentence as adjudged.

(emphasis added).

     The SJA did not serve the Addendum on Appellant or her

counsel.   The SJA submitted the Addendum, along with the

original SJAR and Appellant’s clemency submission, to the

convening authority.    The convening authority did not grant

Appellant clemency.

     At the CCA, Appellant asserted that the above excerpted

statements in the Addendum were “new matter” that should have


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United States v. Scott, 07-0597/AF


been served on the defense as required by Rule for Courts-

Martial (R.C.M.) 1106(f)(7).      The Court of Criminal Appeals

rejected Appellant’s argument and held that the Addendum did not

contain new matter.    2007 CCA LEXIS 131, at *4, 2007 WL 1052498,

at *1.   We agree.

                            II.    Discussion

     Whether matters contained in an addendum to the SJAR

constitute “new matter” that must be served upon an accused is a

question of law that is reviewed de novo.       United States v.

Chatman, 46 M.J. 321, 323 (C.A.A.F. 1997).

     The initial SJAR must be served upon trial defense counsel

and the defendant.     R.C.M. 1106(f)(1).   Defense counsel may then

submit comments on the SJAR.      R.C.M. 1106(f)(4).   In turn, the

SJA has the opportunity to supplement the SJAR in the form of an

addendum SJAR.   R.C.M. 1106(f)(7).      If the addendum contains

“new matter” it must be served on “the accused and counsel for

the accused.”2   Id.

     “New matter” is not defined in the Manual for Courts-

Martial.   And this Court has not provided a comprehensive

definition of “new matter.”       United States v. Frederickson, 63

M.J. 55, 56 (C.A.A.F. 2006) (citing United States v. Catalani,



2
  Nothing precludes this supplement from being served on accused
and counsel, even when it does not contain new matter. Such
transparency may preclude appeals such as the one in this case.
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United States v. Scott, 07-0597/AF


46 M.J. 325, 326 (C.A.A.F. 1997)).      But we are not without

guidance.   The Discussion to R.C.M. 1106(f)(7) provides that:

     “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 or legal
     officer of the correctness of the initial defense
     comments on the recommendation.

     While recognizing that the Discussion is non-binding, this

Court has nonetheless cited with approval its illustrations of

what is and is not a new matter.       See United States v. Buller,

46 M.J. 467, 468 (C.A.A.F. 1997) (citing cases).      Appellant’s

case falls within the latter category.

     Appellant complains that the Addendum contained new matter

insofar as it stated that the members had the benefit of

personally hearing the evidence and determined that the sentence

was appropriate.   We disagree.   It was not news, and thus not

new matter, to note that the members had determined that five

years of confinement was appropriate after hearing all of the

evidence in the case.

     The specific points raised in the Addendum that Appellant

complains of were not comments on “the effect of new decisions

on issues in the case, matter from outside the record of trial,

[or] issues not previously discussed.”      Buller, 46 M.J. at 468

(quoting R.C.M. 1106(f)(7) Discussion).      Nor were the statements

in question news to the convening authority, who presumptively

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United States v. Scott, 07-0597/AF


knew that members heard the case, as he referred the case and

detailed members to it via his convening order.      See United

States v. Key, 57 M.J. 246, 248 (C.A.A.F. 2002) (reasoning that

a “statement of the obvious” does not constitute new matter).

     Appellant nonetheless argues that the Addendum contained

“new matter” because it invited the convening authority to defer

to the members because they had already heard the evidence in

Appellant’s case and were not persuaded that a lower sentence

was appropriate.   We reject this interpretation of the facts.

Being told that members arrived at the sentence after hearing

all the evidence hardly invites the convening authority to shirk

his duty to take action pursuant to R.C.M. 1107.

     Appellant’s reliance on Catalani, 46 M.J. at 326, and

United States v. Gilbreath, 57 M.J. 57, 61 (C.A.A.F. 2002), for

the proposition that “new matter” sweeps so broadly as to

include this case, is misplaced.       The convening authority is

presumed to know the difference between clemency materials and

evidence adduced at trial.   See United States v. Wise, 6 C.M.A.

472, 478, 20 C.M.R. 188, 194 (1955) (applying a “presumption of

regularity” to the convening authority’s actions).      In Catalani,

this Court found that the SJAR addendum contained “new matter”

both because the SJA erroneously stated that “[a]ll of the

matters submitted for your consideration in extenuation and

mitigation were offered by the defense at trial[,]” when in fact

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United States v. Scott, 07-0597/AF


most of the clemency materials were developed after the trial,

and because the addendum to the SJAR improperly tried to bolster

the SJA recommendation by alluding to the fact that the case had

been heard by the “seniormost [sic] military judge in the

Pacific.”    46 M.J. at 327-28.   There is no such factual error or

bolstering in the Addendum in this case.

     The present case is similarly distinguishable from

Gilbreath.    The SJAR Addendum at issue in Gilbreath was founded

on a fallacy –- that the accused was sentenced by members.    In

fact, the accused was sentenced by the military judge.

Gilbreath, 57 M.J. at 61.    The error in the SJAR addendum was

dispositive of the R.C.M. 1106(f)(7) issue in that case. Here,

unlike in Gilbreath, there is not an incorrect characterization

of who conducted sentencing.

     Of course, Gilbreath also stated that the “logical import”

of the SJAR addendum’s statement that “after hearing all

matters, the jury determined a bad conduct discharge was

appropriate” was that the fictional members had already

considered the clemency materials that were before the convening

authority.   Gilbreath, 57 M.J. at 61 (emphasis removed).

Understandably, Appellant relies on this language and other

dicta in Gilbreath regarding whether the SJAR addendum in that

case might have been “construed as suggesting that the convening



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United States v. Scott, 07-0597/AF


authority not provide [an] independent and fresh look” at the

clemency materials because the members had reviewed them.   Id.

But that language was unnecessary to the holding in that case --

there were no members -– and does not control the outcome in

this case.   See Gilbreath, 57 M.J. at 62 (Baker, J., concurring

in the result) (noting that the case turned only on whether

“‘appellant should have had an opportunity to . . . respond to

and correct the misleading information’”) (quoting Catalani, 46

M.J. at 330); see also Alexander v. Baltimore Ins. Co., 8 U.S.

370, 379 (1808) (cautioning against relying on statements not

central to the holding of a case).

     It bears repeating, Gilbreath was decided based on the

addendum SJAR’s incorrect assertion.   See Gilbreath, 57 M.J. at

61 (noting “there was no ‘jury’”).   Here, where the issue is

squarely presented for decision, we clarify that an addendum

accurately referencing the fact that the court-martial heard

evidence before imposing a sentence, without more, does not

constitute new matter.3

     The SJA’s Addendum stated nothing new and the information

contained therein was not “erroneous, inadequate, or


3
  While we do not disagree that an addendum that actually invited
the convening authority to abdicate his duties because the trier
of fact had reviewed all clemency materials, whether true or
not, would be new matter within the meaning of R.C.M.
1106(f)(7), see Catalani, 46 M.J. at 328, the language at issue
in this case falls short of that mark.
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United States v. Scott, 07-0597/AF


misleading.”   Buller, 46 M.J. at 468 (quotation marks omitted).

Instead, it merely stated an obvious fact in the course of

advising the convening authority on the “correctness of the

initial defense comments on the recommendation.”   R.C.M.

1106(f)(7) Discussion.   We decline to extend R.C.M. 1106(f)(7)

to encompass such statements.

                          III.   Decision

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




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