United States v. Barry, 201600306

Background

Appellant pleaded guilty at a special court-martial to one specification of disobeying a lawful general regulation and three drug-related specifications; sentenced to 12 months confinement, reduction to E-1, and a bad-conduct discharge; CA approved and, per PTA, suspended confinement over seven months.
Appellant cooperated with government prosecutions of two other Marines (Sgt Soto and Cpl Black) in exchange for a pretrial agreement (PTA) that included: suspension of confinement >7 months if punitive discharge adjudged, efforts to ensure defense counsel’s physical presence at interviews/testimony (or telephonic access), and promises about confinement placement (not confined with those affected by his cooperation; best efforts to confine at specified brigs).
Appellant contends the government breached the PTA because defense counsel was not present during his direct testimony against Sgt Soto (only joined telephonically during cross-examination) and because he was mistakenly confined with inmates affected by his cooperation.
Government concedes counsel oversight on direct testimony and a clerical error causing confinement placement; government presents evidence the defense counsel had participated in pretrial interviews, the counsel was later contacted, and the appellant elected to remain at Miramar brig when offered transfer.
Appellant also challenged post-trial processing: he alleged the Staff Judge Advocate’s Recommendation (SJAR) contained typographical and substantive errors and that the SJA’s addenda inadequately addressed his legal-error claims; appellant submitted multiple clemency letters and the SJA issued three addenda before the CA acted twice (with original action withdrawn and replaced), ultimately approving the sentence per the PTA.
The court considered materiality of PTA terms and whether post-trial SJAR errors led to a colorable showing of possible prejudice.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether gov’t breached material PTA term by failing to have defense counsel present for direct testimony	Appellant: absence of counsel at direct testimony was a breach that prejudiced his plea/cooperation	Government: counsel had attended pretrial interviews, was later contacted, and absence was oversight but not material	Not material; no prejudice shown
Whether gov’t breached PTA promise not to confine appellant with inmates affected by his cooperation	Appellant: being confined with affected inmates breached PTA and risked retaliation/prejudice	Government: clerical error caused initial placement; appellant declined offered transfer and counsel’s communications indicate acquiescence	Not material because appellant opted to remain; no prejudice
Whether SJAR/addenda errors and SJA responses denied fair post-trial process / caused prejudice	Appellant: SJAR had mistakes and SJA responses were dismissive, impairing appellant’s ability to show legal error to CA	Government: SJA corrected errors via addenda and CA received multiple clemency submissions before final action	No colorable showing of possible prejudice; post-trial errors did not affect substantial rights
Appropriate remedy for alleged PTA breach(s)	Appellant: seeks relief for government’s failure to perform PTA promises	Government: argues breaches were immaterial and cured or not prejudicial	No remedial relief; findings and sentence affirmed

Key Cases Cited

United States v. Acevedo, 50 M.J. 169 (C.A.A.F. 1999) (PTA is a contract between accused and convening authority)
United States v. Lundy, 63 M.J. 299 (C.A.A.F. 2006) (materiality of PTA terms and remedies for government breach)
United States v. Chatman, 46 M.J. 321 (C.A.A.F. 1997) (to prevail on post-trial error must make colorable showing of possible prejudice)
United States v. Leal, 44 M.J. 235 (C.A.A.F. 1996) (post-trial practice requires notice and opportunity to respond)