United States v. Parikh
ACM S32381
| A.F.C.C.A. | Jul 7, 2017Background
- Appellant pleaded guilty at a special court-martial to multiple offenses (diverse marijuana use, three larcenies, unlawful entry) and was sentenced to a bad-conduct discharge, six months confinement, and reduction to E-1; the convening authority approved only what the pretrial agreement allowed (bad-conduct discharge, 180 days confinement, reduction to E-1).
- In clemency, Appellant asked the convening authority to reduce confinement from six months to three months.
- The SJA’s addendum to the SJAR erroneously advised the convening authority that he lacked authority to disapprove, commute, or suspend confinement (stating he could not alter confinement).
- Appellant’s counsel filed a response disputing that legal advice; the SJA issued a second addendum reiterating her recommendation unchanged.
- The convening authority approved the sentence as recommended; the SJA later conceded the advice was incorrect but submitted an affidavit stating her recommendation would not have changed.
- The convening authority submitted an affidavit stating he would not have granted additional clemency on confinement even if correctly advised.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether erroneous SJAR advice that the convening authority lacked clemency power over confinement prejudiced Appellant | Appellant: the incorrect advice may have prevented a reduction of confinement to 3 months | Government: error acknowledged but no prejudice; SJA and convening authority attest they would not have granted more relief | Court: Error existed but Appellant failed to show colorable possible prejudice; affirmed |
Key Cases Cited
- United States v. Kho, 54 M.J. 63 (C.A.A.F. 2000) (standard for showing prejudice from post-trial error)
- United States v. Scalo, 60 M.J. 435 (C.A.A.F. 2005) (appellant must make a colorable showing of possible prejudice)
- United States v. Green, 44 M.J. 93 (C.A.A.F. 1996) (courts consider whether convening authority plausibly would have granted more relief if properly informed)
- United States v. Johnson, 26 M.J. 686 (A.C.M.R. 1988), aff'd, 28 M.J. 452 (C.M.A. 1989) (standard for assessing whether convening authority might have acted more favorably)