                                    IN THE CASE OF



                            UNITED STATES, Appellee

                                            v.

                          Kevin E. BROWN, Private E2
                             U.S. Army, Appellant

                                     No. 99-0983
                             Crim. App. No. 9701539

             United States Court of Appeals for the Armed Forces

                               Argued October 4, 2000

                             Decided December 19, 2000

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


                                        Counsel

For Appellant: Captain Steven P. Haight (argued); Colonel Adele H. Odegard,
     Major Jonathon F. Potter, and Captain David S. Hurt (on brief);
     Lieutenant Colonel David A. Mayfield and Major Scott R. Morris.


For Appellee: Captain William J. Nelson (argued); Colonel Russell S. Estey,
     Major Patricia A. Ham, and Captain Kelly D. Haywood (on brief);
     Lieutenant Colonel Edith M. Rob.



Military Judge:   Robert F. Holland




            THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. Brown, No. 99-0983/AR




Judge EFFRON delivered the opinion of the Court.

     A general court-martial composed of a military judge

sitting alone convicted appellant, pursuant to his pleas, of

assault consummated by a battery (3 specifications) and

aggravated assault (5 specifications) on a child under the age

of 16 years, in violation of Article 128, Uniform Code of

Military Justice, 10 USC § 928.   He was sentenced to a

dishonorable discharge, confinement for 8 years, forfeiture of

all pay and allowances, and reduction to the grade of E-1.   The

convening authority approved these results, and the Court of

Criminal Appeals affirmed in an unpublished, memorandum opinion.

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

issue:

          WHETHER THE STAFF JUDGE ADVOCATE ERRED TO
          THE SUBSTANTIAL PREJUDICE OF APPELLANT BY
          SUBMITTING A RECOMMENDATION TO THE CONVENING
          AUTHORITY REGARDING APPELLANT’S REQUEST THAT
          FORFEITURES BE DEFERRED WHICH CONTAINED
          MATTERS NOT MENTIONED IN THE RECORD OF
          TRIAL, SPECIFICALLY MENTIONING THAT
          APPELLANT’S WIFE WAS UNDER INVESTIGATION FOR
          THE SAME FACTS THAT GAVE RISE TO APPELLANT’S
          COURT-MARTIAL, AND NOT ALLOWING APPELLANT
          THE OPPORTUNITY TO REBUT THIS NEW MATTER BY
          NEVER SERVING APPELLANT WITH THE
          RECOMMENDATION TO THE CONVENING AUTHORITY
          RELATING TO THE REQUEST FOR DEFERMENT OF
          FORFEITURES.




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United States v. Brown, No. 99-0983/AR


     For the reasons set forth below, we affirm.    Appellant has

not made a colorable showing of possible prejudice flowing from

the alleged error.    See Art. 59(a), UCMJ, 10 USC § 859(a).



                   I. BACKGROUND: FACTUAL SETTING

     Twelve days after appellant's trial ended, he asked the

convening authority to defer the adjudged forfeitures pending

the convening authority's final action in the case.    See Art.

57(a)(1)(A) and (a)(2), UCMJ, 10 USC § 857(a)(1)(A) and (a)(2).

The written submission by defense counsel noted: (1) appellant

had a moral and financial obligation to his two children, both

of whom were in foster care; (2) appellant's wife, who was

expecting their third child, was unemployed and planned to

relocate to her home in Maryland; and (3) deferment of the

forfeitures was necessary to provide Mrs. Brown with “some

financial security while she seeks secure employment," and

without the deferment, "the family will have no means of

support."

     On the following day, the Staff Judge Advocate (SJA)

provided the convening authority with a written recommendation

on the request, which noted in part that

            PV2 Brown's two children are presently in
            foster care and are unlikely ever to be
            returned to him. He is not under any court
            ordered obligation to provide them financial
            support. In addition, his wife is expecting


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United States v. Brown, No. 99-0983/AR


            their third child, however, this child is
            due after the six month waiver period will
            expire.[1] Thus, his wife is the only
            dependent who will directly benefit during
            the period of the waiver/deferral, and she
            is currently under investigation for
            criminal abuse regarding the same facts and
            circumstances as in the present case.

On the following day, the convening authority disapproved the

request.    The defense was not served with the SJA's written

recommendation.

      Approximately 6 months after denial of the deferment

request, the SJA provided the convening authority with a

recommendation to approve the findings and sentence under

Article 60(d), UCMJ, 10 USC § 860(d).         The SJA included a

reference to appellant’s deferment request, reminding the

convening authority that he had denied the request.            The SJA’s

recommendation was served on appellant’s newly assigned

substitute defense counsel.

      After receiving a copy of the SJA’s recommendation, defense

counsel submitted matters for consideration by the convening

authority under RCM 1105 and 1006, Manual for Courts-Martial,

United States (2000 ed.).       These submissions challenged the


1
  The SJA misspoke. There is no 6-month waiver period with respect to
deferment of adjudged forfeitures. Adjudged forfeitures may be deferred
until the convening authority takes formal action on the sentence. See Art.
57(a)(2), UCMJ, 10 USC § 857(a)(2). The SJA apparently was referring to a
statutory provision not at issue in this case, the authority under Article
58b(b), UCMJ, 10 USC § 858b(b), to waive automatic forfeitures for certain
persons in confinement for a period of up to 6 months. Compare Art. 57(a)(2)
(deferment of adjudged forfeitures) with Art. 58b(b)(waiver of automatic
forfeitures).


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United States v. Brown, No. 99-0983/AR


legal sufficiency of the pleas and effectiveness of trial

defense counsel, but they did not address the decision to deny

deferment of forfeitures or otherwise specifically request that

the convening authority mitigate the forfeitures when taking

action on the sentence.    The defense submission included a

letter from appellant's wife in which she wrote that she, not

appellant, had hurt the children, describing what she had done

and how she had done it.    Approximately 3 weeks later, the

convening authority approved the adjudged sentence.



                  II. BACKGROUND: LEGAL CONTEXT

         A. Recommendations to the Convening Authority:
                       Notice and Comment

     The requirement for a written submission to the convening

authority from the SJA under Article 60(d) is a longstanding

feature of military law.    See Act of June 4, 1920, ch. 227, 41

Stat. 796 (Article of War 46); Manual for Courts-Martial, U.S.

Army, 1921, para. 370.    In United States v. Goode, 1 MJ 3, 6

(CMA 1975), we held that the written recommendation must be

served on counsel for the accused in order to provide the

accused "with an opportunity to correct or challenge any matter

he deems erroneous, inadequate or misleading, or on which he

otherwise wishes to comment."    Goode drew upon earlier cases

that required notice and an opportunity to comment on adverse



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United States v. Brown, No. 99-0983/AR


matter in a post-trial review.    See, e.g., United States v.

Vara, 8 USCMA 651, 25 CMR 155 (1958); United States v. Griffin,

8 USCMA 206, 24 CMR 16 (1957).    Subsequent to Goode, we held in

United States v. Narine, 14 MJ 55 (CMA 1982), that if the SJA

supplements the original recommendation by providing the

convening authority with new matter, the new matter must be

served on counsel in order to ensure compliance with the

opportunity for comment required by our precedents.

     Congress incorporated the notice and response requirements

of Goode into Article 60(d) as part of the Military Justice Act

of 1983, Pub. L. No. 98-209, §5(a)(1), 97 Stat. 1395-97.      See S.

Rep. No. 98-53 at 21 (1982).    The President has incorporated

this requirement and treatment of new matters under Narine into

the Manual for Courts-Martial through RCM 1106(f)(7).

     At the time the Military Justice Act of 1983 was debated,

and for many years thereafter, forfeitures adjudged by a court-

martial did not take effect until the convening authority acted

on the findings and sentence.    In the National Defense

Authorization Act for Fiscal Year 1996, Pub. L. No. 104-106, 110

Stat. 462-63, Congress amended the Code to provide that: (1)

forfeitures adjudged by a court-martial would become effective

in most cases prior to the convening authority's action, and (2)

the convening authority could defer such forfeitures.      Art.

57(a), supra.   The 1996 legislation also amended the Code to


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United States v. Brown, No. 99-0983/AR


require automatic forfeiture of pay in certain cases involving

confinement, regardless of whether forfeitures were adjudged at

trial, and to permit the convening authority to waive such

forfeitures for a limited period of time, not to exceed 6

months.   Art. 58b, UCMJ, 10 USC § 858b.   Neither the statute nor

the subsequent amendments to the Manual addressed the issue of

whether the convening authority was required to receive an SJA's

recommendation before acting on a deferment or waiver request.

Likewise, neither addressed the issue of whether the accused

should be provided with notice of and an opportunity to respond

to any written submission from the SJA to the convening

authority with respect to deferment or waiver.

           B.   Post-Trial Processing: Prejudicial Error

     In United States v. Chatman, 46 MJ 321 (1997), we set forth

the following guidance to determine whether an erroneous failure

to serve new matter on the defense constitutes prejudicial

error:

           [W]e will require appellant to demonstrate
           prejudice by stating what, if anything,
           would have been submitted to "deny, counter,
           or explain" the new matter. . . . We believe
           that the threshold should be low, and if an
           appellant makes some colorable showing of
           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.



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United States v. Brown, No. 99-0983/AR


Id. 323-24 (citations omitted); see Art. 59(a), supra;    see also

United States v. Wheelus, 49 MJ 283 (1998); United States v.

Catalani, 46 MJ 325 (1997).



                          III.   DISCUSSION

                A. Post-Trial Action on Forfeitures

     Appellant relies on the views of the Air Force Court of

Criminal Appeals in United States v. Spears, 48 MJ 768

(A.F.Ct.Crim.App. 1998), overruled in part on other grounds,

United States v. Owens, 50 MJ 629 (A.F.Ct.Crim.App. 1998). In

Spears, the court noted that although the literal requirements

for the SJA’s post-trial recommendation under RCM 1106 did not

extend to waiver of automatic forfeitures under Article 58b(b),

"concepts of basic fairness and procedural due process" were

violated by not providing the servicemember with a copy of the

recommendation and an opportunity to “comment before sending it

to the convening authority for his action on the waiver

request."   Id. at 775-76.   Drawing an analogy to the notice and

comment provisions of RCM 1106, the court stated:

            The clear purpose behind the rule was to
            give the defense an opportunity to respond
            to the SJA's position in post-trial legal
            advice provided to the convening authority.
            The rule on new matter obviously prevents
            the SJA from bringing up new issues from
            outside the record to the convening
            authority and getting the last say without
            the defense even knowing about it. When the


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United States v. Brown, No. 99-0983/AR


          rule was written, Articles 57(a) and 58b,
          UCMJ, did not exist and the issue presently
          before us could not be foreseen.

Id. at 775.

     We note that Congress has recognized the serious impact

that such forfeitures would have on the family of the accused by

providing the authority for deferment and waiver.   The issue

before us raises questions involving constitutional due process

and statutory interpretation.   Because appellant has not met the

applicable standards for finding prejudicial error, as discussed

in Part III.B., infra, we need not decide at this time whether

the requirements of notice and an opportunity to comment apply

to requests for deferment of adjudged forfeitures or waiver of

automatic forfeitures.

     It is likely, however, that these questions will recur in

the near future.   Rather than attempt to resolve them in the

present case, we believe the most prudent course of action is

for the Executive Branch to consider whether, as a matter of law

or policy, and consistent with due process considerations, such

requests to the convening authority should be followed by a

recommendation from the SJA and service on the accused with an

opportunity to respond.   In addition, given congressional focus

on the interests of the family, consideration should be given as

to whether there might be circumstances in which the family

could have interests separate from the accused which might be


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United States v. Brown, No. 99-0983/AR


brought to the attention of the convening authority directly by

the family rather than through the accused.


                    B.   Evaluation of Prejudice

     Even if we were to hold that notice and an opportunity to

comment were required in the present case, appellant would not

be entitled to relief.   Under Chatman, supra, an accused who

seeks appellate relief from such a post-trial processing error

has the burden of making a colorable showing of possible

prejudice.   Appellant has not met this burden because he has not

demonstrated what he would have said in response to the SJA’s

recommendation regarding deferment of forfeitures.

     The SJA, for example, stated that appellant was not under

any court-ordered obligation to provide financial support for

his children in foster care.   This is the type of assertion

which, if incorrect or misleading, can readily be corrected.    In

order to make the requisite showing of prejudice, appellant

would have to demonstrate on appeal how he would have challenged

the SJA’s assertion, and he has not done so.

     Likewise, appellant has not demonstrated prejudice with

respect to the SJA’s statements that the deferment would not

benefit the third, as yet unborn child, who was not due until

more than 6 months after the request.    Although the SJA erred in

suggesting that there was a 6-month maximum period for



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United States v. Brown, No. 99-0983/AR


deferment, appellant has failed to address the fact that any

deferment would have ended as a matter of law well within the 6

month period when the convening authority acted on appellant’s

case.   Appellant has not indicated what he might have said about

the SJA’s error that could have produced a different result.

     Appellant also has not demonstrated prejudice with respect

to the SJA's assertion that appellant's wife was unworthy of

favorable consideration because she then was "under

investigation for criminal abuse regarding the same facts and

circumstances as in the present case."        Appellant has argued

that he could have investigated that assertion and responded to

it if inaccurate.   He has had ample time to do so and has not

demonstrated either that the statement was inaccurate or that

there were circumstances that precluded him from obtaining the

requisite information.     Although the standard for prejudicial

error under Chatman is low -- a "colorable showing of possible

prejudice" –- it does not include sheer speculation about

factual matters that are within the normal investigative

capabilities of counsel.



                             IV.   DECISION

     The decision of the United States Army Court of Criminal

Appeals is affirmed.




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