

   
   
   
   U.S. v. Hensley



IN THE CASE OF
UNITED STATES, Appellee
v.
Brian H. HENSLEY, Sonar Technician (Surface)
Seaman
U.S. Navy, Appellant
 
No. 99-0111
Crim. App. No. 98 0225
 
United States Court of Appeals for the Armed
Forces
Argued November 10, 1999
Decided March 22, 2000
GIERKE, J., delivered the opinion of the
Court, in which CRAWFORD, C.J., and COX, S.J., joined. SULLIVAN, J., filed
a dissenting opinion, in which EFFRON, J., joined. EFFRON, J., filed a
dissenting opinion.

Counsel
For Appellant: Lieutenant M. Eric Eversole,
JAGC, USNR (argued); Lieutenant Commander R. C. Klant, JAGC, USN
(on brief).
For Appellee: Lieutenant Danette L. Walker,
JAGC, USNR (argued); Colonel Kevin M. Sandkuhler, USMC, and Commander
Eugene E. Irvin, JAGC, USN (on brief); Major Troy D. Taylor,
USMC.
Military Judge: R. A. Smith
 
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.





Judge GIERKE delivered the opinion of the Court.
A military judge sitting as a special court-martial
convicted appellant, pursuant to his pleas, of attempted larceny and larceny,
in violation of Articles 80 and 121, Uniform Code of Military Justice,
10 USC §§ 880 and 921, respectively. The adjudged and approved
sentence provides for a bad-conduct discharge, confinement and forfeitures
for 3 months, and reduction to the lowest enlisted grade. The Court of
Criminal Appeals affirmed.
Our Court granted review of the following issue:

WHETHER THE LOWER COURT ERRED IN FINDING
THAT IT WAS NOT PLAIN ERROR FOR THE POST-TRIAL RECOMMENDATION IN APPELLANTS
CASE TO BE PREPARED BY A "COMMAND SERVICES OFFICER" WHO WAS NEITHER THE
CONVENING AUTHORITYS STAFF JUDGE ADVOCATE NOR HIS LEGAL OFFICER.

For the reasons set out below, we affirm.

Factual Background
Appellants court-martial was convened by the
commanding officer of the USS JOHN PAUL JONES. The ships legal officer
asked Lieutenant (LT) Kevin Stampher, Command Services Department Head
at the Trial Service Office West, based in San Diego, California, to prepare
the post-trial recommendation. LT Stampher is a qualified legal officer.
LT Stampher prepared a post-trial recommendation
and submitted it to the convening authority. He signed his own name and
identified the document as coming from "Command Services Officer, Trial
Service Office West." The defense was served with the post-trial recommendation
and did not object to having it prepared by LT Stampher instead of the
ships legal officer. Defense counsel did, however, point out to LT Stampher
that he had neglected to mention appellants petition for clemency. LT
Stampher then submitted an addendum to his recommendation and served a
copy on the defense counsel, again identifying himself and his organization
in the same manner as in the post-trial recommendation. Again, defense
counsel did not challenge LT Stamphers authority.
The record is silent on the involvement of
the convening authority in obtaining the assistance of LT Stampher. It
does not reflect whether the ships legal officer was directed to request
that LT Stampher prepare the post-trial recommendation, or whether the
request was with the knowledge or approval of the convening authority.
During oral argument, however, appellate government counsel conceded that
LT Stampher was not formally designated by competent authority to act as
legal officer in this case. Because LT Stampher identified himself and
his organization, it is evident that the convening authority knew the source
of the post-trial recommendation and chose to rely on it.

Discussion
Appellant now asserts that LT Stampher was
statutorily unqualified to prepare and submit the post-trial recommendation,
because he was not the convening authoritys legal officer. The Government
does not directly contest the holding of the court below that it was error
for LT Stampher to prepare and submit the post-trial recommendations. The
Government argues that any error falls short of plain error and, thus,
was waived by appellants failure to object to the authorship of the post-trial
recommendation.
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." (Emphasis
added.) RCM 1106(c)(1), Manual for Courts-Martial, United States (1995
ed.),* provides in pertinent
part as follows:

If the convening authority does not have
a staff judge advocate or legal officer, or if the person serving in that
capacity is disqualified under subsection (b) of this rule or otherwise,
the convening authority shall:
 

(A) Request the assignment of another staff
judge advocate or legal officer to prepare a recommendation under this
rule; or
(B) Forward the record for action to any officer
exercising general court-martial jurisdiction as provided in RCM 1107(a).



Neither Article 60 nor RCM 1106 requires that
the convening authoritys request for designation of another staff judge
advocate or legal officer be in writing or personally communicated by the
convening authority.
The granted issue is a question of first impression
for this Court. However, the Army and Navy courts have addressed the issue,
with opposite results. In United States v. Sparks, 20 MJ 985 (NMCMR
1985), the court-martial was convened by the commanding officer, USS MCKEE,
who had a legal officer assigned to his ship. For reasons not disclosed
in the record, the post-trial recommendation was prepared by the staff
judge advocate (SJA) for the Commander Submarine Squadron Three (COMSUBRONTHREE).
The Navy-Marine Corps Court of Military Review applied the presumption
of regularity and denied a motion from appellate defense counsel to produce
the document requesting the SJA of COMSUBRONTHREE to prepare the post-trial
recommendation. Having presumed that the convening authority had properly
requested the SJA of COMSUBRONTHREE to act in place of his legal officer,
the Navy court also tested for prejudice and found none.
In United States v. Gavitt, 37 MJ 761
(ACMR 1993), the SJA, Berlin Brigade, was disqualified because he had engaged
in an ex parte communication with several members of the court-martial.
He informally arranged to have the SJA, 3d Infantry Division, prepare the
post-trial recommendation. There was no evidence that the convening authority
sanctioned this arrangement. The Army court declined to apply the presumption
of regularity and did not test for prejudice. It ordered a new post-trial
recommendation and action.
In United States v. Hall, 39 MJ 593
(ACMR 1994), the Army court again found error when the wrong SJA prepared
the post-trial recommendation. The SJA, Fort Riley, Kansas, prepared the
post-trial recommendation and served it on the defense. The defense alleged
that the Fort Riley SJA was disqualified because a subordinate of the SJA
had initiated the charges. The Fort Riley SJA requested the SJA, Fort Leavenworth,
Kansas, to prepare the post-trial recommendation. Like Gavitt, the
case was informally transferred by agreement between the two SJAs involved,
without involving the convening authorities. Unlike Gavitt, however,
the court in Hall found that the error was "consciously and deliberately
waived." Id. at 595. The court found waiver based on comments from
the trial defense counsel after being served with the Fort Leavenworth
SJAs recommendation, where defense counsel commented that the disqualification
of the Fort Riley SJA was resolved by having another SJA prepare the recommendation.
Because the Government has conceded error in
the case before us, we need not decide whether the presumption of regularity
invoked by the Navy court in Sparks should be applied. We turn instead
to the question whether the conceded error amounts to plain error. See
United States v. Powell, 49 MJ 460, 463-65 (1998). The error was
obvious, because LT Stampher clearly identified himself as someone other
than the ships legal officer. The key question is whether the error materially
prejudiced a substantial right.
Article 60(d) gives an accused the right to
a recommendation prepared by a qualified officer. Cf. United States
v. Finster, 51 MJ 185 (1999). Article 60(d) does not, however, give
an accused a right to a recommendation from a specific individual. RCM
1106(c)(1) gives a convening authority the option to request the assignment
of another SJA or legal officer for a specific case, or to forward the
record to another convening authority. RCM 1106(c)(1) does not require
the consent of the accused.
Once competent authority designates a substitute
SJA or legal officer, that officer becomes the convening authoritys SJA
or legal officer within the meaning of Article 60(d). Thus, a post-trial
recommendation from someone other than the ships legal officer does not
materially prejudice a substantial right, because an accused does not have
a right to a recommendation from that officer. Accordingly, we conclude
that the irregular designation of LT Stampher as legal officer for appellants
case did not materially prejudice a substantial right. We hold, therefore,
that the error conceded by the Government does not rise to the level of
plain error.
We note also that this case involves more than
a passive waiver. Defense counsel not only did not object to LT Stampher
submitting the post-trial recommendation, he affirmatively interacted with
him, calling appellants clemency petition to his attention. LT Stampher
responded by submitting an addendum to the convening authority and serving
a copy on defense counsel. Defense counsel again did not avail himself
of the opportunity to challenge LT Stamphers authority to submit the addendum.
Thus, this case presents a situation more akin to the affirmative waiver
found by the Army court in Hall.
Finally, even assuming arguendo that
there was plain error, we are satisfied that appellant was not prejudiced
as to result. Because LT Stampher was qualified as a legal officer, we
are not faced with the same error as in Finster. There is nothing
in the record suggesting, and appellant does not assert, that there was
any forum shopping or other manipulation of the process authorized by RCM
1106(c) to influence the content of the recommendation. The post-trial
recommendation and addendum, considered together, are legally correct.
The recommendation was prepared by an officer of greater experience than
the ships legal officer. Appellants requests for deferment and clemency
were properly presented to the convening authority. As appellant has made
no "colorable showing" that he would have received a more favorable recommendation
from the ships legal officer, there was no potential for prejudice for
the Government to rebut. See United States v. Wheelus, 49
MJ 283 (1998).Accordingly, we conclude that appellant is not entitled to
relief.

Decision
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
FOOTNOTE:
*The
1998 version of this rule is unchanged.


SULLIVAN, Judge, with whom EFFRON, Judge, joins
(dissenting):
Article 60(d), UCMJ, 10 USC § 860(d),
states that "the convening authority or other person taking action under
this section shall obtain and consider the written recommendation of his
staff judge advocate or legal officer." (Emphasis added.) A majority of
this Court is now effectively attempting to rewrite Article 60(d)
by allowing any nonlawyer "legal officer" to prepare the recommendation.
RCM 1106(c), Manual for Courts-Martial, United States (1995 ed.), applies
to situations in which a convening authority has no staff judge advocate
or legal officer, or where such person is disqualified from advising the
convening authority due to his or her previous involvement in the case.
It is not a blanket authorization to the convening authority to allow any
"legal officer" to prepare the recommendation.
Article 60(d) is violated in this case because
the recommendation was not prepared by the convening authoritys legal
officer, but was prepared by some other nonlawyer legal officer. The government
concedes this error. Accordingly, United States v. Finster, 51 MJ
185, 188 (1999), mandates that this case should be reversed and remanded
for a new staff judge advocate recommendation that is in compliance with
Article 60(d).
The majority has given no reason why this Court
should not be bound by Finster in this case. Both cases are remarkably
similar. In both Finster and this case, there was a post-trial
recommendation made by a nonlawyer designated as a legal officer.
In fact, in Finster, the designated "legal officer" (it should be
noted that he was an enlisted noncommissioned officer) was an honors graduate
of the Naval Justice Schools Legal Officer Course. United States v.
Finster, supra, appellants final brief at 2. Furthermore, in
Finster,
just as in this case, there was no objection to the post-trial recommendation.
Comparing both Finster and the case at bar, the core issue which
emerges is: Was appellant prejudiced by the post-trial recommendation
prepared by a person unqualified under Article 60(d)?
In Finster, this Court answered that
question by holding that the nonlawyer who was functioning as a legal officer
was unqualified under the UCMJ and that his preparation of the post-trial
recommendation was a "fundamental flaw." 51 MJ at 186-88. In the case at
bar, the question (on the prejudice of an unqualified person preparing
the recommendation) should similarly be answered in the affirmative. The
nonlawyer "legal officer" here was unqualified because he was not the
legal officer of the convening authority. See also Cooke
v. Orser, 12 MJ 335, 344 (CMA 1982) (Congress intended special
relationship between commander and his staff judge advocate). In both Finster
and in this case, a nonlawyer, unqualified under the plain wording of the
UCMJ, gave the post-trial recommendation. In Finster, this Court
gave relief. The same result should be followed here. Accordingly, I dissent.


EFFRON, Judge (dissenting):
I agree with Judge Sullivans dissent and offer
the following additional views.
As indicated in the majority opinion, both
parties agree that it was error to have appellant's post-trial recommendation
prepared by a "command services officer" who was neither the convening
authority's staff judge advocate (SJA) nor his legal officer. In this case,
as in United States v. Finster, 51 MJ 185 (1999), the erroneous
use of a statutorily unqualified person to prepare the post-trial recommendation
requires a remand to the convening authority for a new recommendation and
action.
Article 60(d), UCMJ, 10 USC § 860(d),
requires the convening authority to "obtain and consider the written recommendation
of his staff judge advocate or legal officer." (Emphasis
added). The express language of the statute indicates that Congress contemplated
that there would be a command-staff relationship between the convening
authority and "his" legal advisor. As discussed in Finster, although
the Military Justice Act of 1983 streamlined the post-trial process, see
51 MJ at 186, Congress emphasized the continuing importance of the post-trial
recommendation prepared by the convening authoritys SJA or legal officer.
Although the 1983 Act eliminated the requirement for a lengthy legal review
of the record, Congress continued to expect the post-trial recommendation
to reflect the legal advisors discretion, judgment, and knowledge.
During hearings before a subcommittee of the
Senate Armed Services Committee, the General Counsel of the Department
of Defense highlighted the fact that the SJA or legal officer, as the convening
authority's senior advisor on military justice matters, would be the person
best qualified to make a recommendation to the convening authority as to
how he should exercise his powers. See id. at 187, quoting
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 Senate Armed Services Committee emphasized the importance of the relationship
between the convening authority and his legal advisor by stating that the
post-trial recommendation would still be provided "by the convening authority's
principal advisor on military justice matters." Id., quoting S.Rep.
No. 53, 98th Cong., 1st Sess. 20 (1983).
The relationship between the convening authority
and his or her legal advisor has been an important feature of the UCMJ
since its enactment in 1951. Article 6(a), UCMJ, 10 USC § 806(a),
places the assignments of all judge advocates and legal officers under
the control of the Judge Advocate General of the armed force of which they
are members. In 1951, then-Major Kenneth J. Hodson, an authoritative commentator
on the UCMJ and the Manual for Courts-Martial, United States, 1951, noted
that Article 6(a) contemplated that the Judge Advocate General would assign
judge advocates and legal officers that possess the basic qualifications
and characteristics necessary to form a confidential and advisory relationship
with the convening authority. See Legal and Legislative Basis, Manual,
supra
at 137-40 ("The Staff Judge Advocate and Legal Officer"). According to
Hodson, the relationship with the SJA or legal officer as trusted advisor
would facilitate decisions being made by the convening authority on matters
of military justice. Id.
Other provisions of the UCMJ underscore the
significance of the relationship between the convening authority and his
SJA or legal officer. Article 6(b) requires the convening authority to
communicate directly with his or her SJA or legal officer in matters relating
to military justice. According to Major Hodson, "[a]rticle 6(b) not only
authorizes direct communication within military justice channels but also
enhances the position of judge advocates and legal officers by requiring
direct communication on military justice matters between such officers
and their commanding officers." Id. at 138. Art. 6(b) also authorizes
the SJA or legal officer to communicate with the SJA or legal officer of
superior or subordinate commands. In sum, Articles 6 and 60 confer a special
status on the legal advisor, both in terms of his or her relationship with
the convening authority and within the chain of command.
As the majority points out, there are certain
circumstances in which a substitute SJA or legal officer from another command
may be assigned to prepare the post-trial recommendation, but such action
is permissible only in cases where the convening authority actually requests
such assistance under particular circumstances. RCM 1106(c)(1), Manual
for Courts-Martial, United States (1998 ed.). Once the convening authority
designates a substitute SJA or legal officer, that officer becomes the
convening authoritys SJA or legal officer within the meaning of Article
60(d). These provisions do not permit a command legal officer to arrange
informally for another officer outside the chain of command to prepare
the post-trial recommendation.
In the present case, the post-trial recommendation
was prepared by LT Stampher, an officer on limited duty temporarily assigned
to the Trial Service Office West as a "Command Service Officer". The Government
conceded during oral argument that LT Stampher was not formally designated
by competent authority to act as the legal officer in this case. The Government
acknowledged that the convening authoritys legal officer asked LT Stampher
to prepare the post-trial recommendation because the legal officer did
not know how to properly prepare the document. Rather than asking for assistance
or for the convening authority to refer the case to a qualified legal officer,
the legal officer took it upon himself to ask LT Stampher to prepare the
document for the convening authority.
The Government contends that "[h]ad the commands
legal officer known how to prepare the recommendation it would have been
identical in every respect except its authorship." Answer to Final Brief
at 7. Therein lies the fundamental problem with this case. The post-trial
recommendation is not simply a fill-in-the-blank form that anyone can complete
by inserting personnel data. It is statutorily designated as a "recommendation."
As such, it must reflect an exercise in discretion, judgment, and reason
by the person designated to serve as the convening authoritys advisor
on military justice matters. The Governments assumption that recommendations
written by two different people -- exercising their own discretion, judgment,
and reason - would necessarily produce identical recommendations demonstrates
a fundamental misunderstanding as to the very purpose of a post-trial recommendation.
As the Court of Criminal Appeals said in United States v. Cunningham,
"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. . . ." 44 MJ 758, 763 (N.M.Ct.Crim.App. 1996).
The Government suggests that appellant benefited
from the fact that the designated legal officer did not prepare the recommendation
because he "was unsure how one should be drafted." Answer to Final Brief
at 7. In other words, appellant should feel grateful that the recommendation
was prepared by an unqualified nonlawyer rather than an incompetent nonlawyer.
Considering the fact that only the seagoing services are permitted to use
nonlawyers to prepare post-trial recommendations, see Arts. 1(12)
and 60(d), there is no excuse for permitting a servicemember's case to
be reviewed by a nonlawyer who is either unqualified or incompetent.
As this Court indicated in United States
v. Curry, Congress afforded the flexibility of using nonlawyers to
the naval services because many "special courts-martial are convened by
commanders of vessels and deployed units to which a staff judge advocate
is not assigned; and for them it may be difficult and time-consuming to
arrange for the record of trial to be examined by a lawyer." 28 MJ 419,
422 (CMA 1989). This exception, however, did not contemplate that the seagoing
services would fail to properly train its nonlawyer legal officers to perform
these critical functions, or that they would permit these officers to designate
unqualified persons to do so.
As we held in Finster, and as the Navy-Marine
Corps Court correctly noted in Cunningham, the use of a statutorily
unqualified person to prepare the post-trial recommendation

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.

51 MJ at 188, quoting Cunningham, supra
at 764. Appellant is entitled to the same expectation in this case. See
Finster, supra at 189 ("appellate court[s]. . . 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.") (Cox, C.J., concurring).
In accordance with the Code and applicable
case law, I would reverse the decision of the United States Navy-Marine
Corps Court of Criminal Appeals and order a new convening authoritys action
and recommendation by his own legal officer.

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