United States v. Elliott
201600247
| N.M.C.C.A. | Apr 27, 2017Background
- Appellant convicted at a special court-martial, pursuant to pleas, of one failure to obey a general order, two failures to obey lawful orders, and wrongful use of a controlled substance (Articles 92 and 112a, UCMJ).
- Military judge sentenced appellant to 103 days’ confinement and a bad-conduct discharge; convening authority (CA) approved sentence except the punitive discharge and ordered execution.
- SJA issued an initial SJAR on 14 June 2016 and defense counsel submitted a clemency request on 24 June alleging legal errors. Three alleged errors had been litigated pretrial and addressed in a pretrial agreement.
- On 25 June the SJA forwarded an SJAR addendum to the CA stating he disagreed with the defense’s legal-error allegations, enclosed the defense clemency request, and explicitly stated the addendum raised no new matter.
- Defense counsel asserts she never received the SJAR addendum; there was no acknowledgement of service and the addendum was absent from the record until the government moved to attach it on 13 October 2016.
- Appellant’s sole assignment of error: government failed to provide an opportunity to submit matters in response to the SJAR addendum; court reviews whether the addendum constituted "new matter."
Issues
| Issue | Appellant's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the SJAR addendum contained "new matter" requiring service on defense and an opportunity to comment under R.C.M. 1106(f)(7) | Addendum raised new matter because it rejected defense allegations and was not served on counsel; lack of service denied opportunity to respond | Addendum did not introduce new matter: it merely disagreed with defense legal arguments, cited no new facts or outside-record matters; thus no further service or comment required | Court held addendum did not raise new matter under R.C.M. 1106(f)(7); even if it had, appellant failed to show prejudice and findings and sentence were affirmed |
Key Cases Cited
- United States v. Chatman, 46 M.J. 321 (C.A.A.F. 1997) (standard for when SJA supplementation creates new matter requiring service and comment)
- United States v. Del Carmen Scott, 66 M.J. 1 (C.A.A.F. 2008) (discussion of what constitutes new matter; SJA disputing correctness of defense comments may not be new matter)
- United States v. Rodriguez-Rivera, 63 M.J. 372 (C.A.A.F. 2006) (appellant must show what would have been submitted to rebut new matter to demonstrate prejudice)