United States v. Finster
1999 WL 561355
C.A.A.F.
1999
Check Treatment

*1 STATES, Appellant, UNITED FINSTER, L. Master-at-

Robert Class, Arms Second U.S.

Navy, Appellee.

No. 98-5032.

Crim.App. No. 97 1882. Appeals for Court of

U.S.

the Armed Forces.

Argued Feb. 1999. July 30, 1999.

Decided

EFFRON, J., opinion delivered COX, Court, C.J., and in which SULLIVAN JJ., COX, C.J., GIERKE, joined. filed a J., CRAWFORD, opinion. concurring filed a dissenting opinion. Appellant:

For E. Lieutenant James Grimes, JAGC, (argued); USNR Colonel Sandkuhler, USMC, D.H. KM. Commander USN, JAGC, Myers, E.E. and Commander (on brief). Irvin, JAGC, USN Appellee: For Lieutenant Commander Klant, JAGC, (argued). R.C. USN Captain Urging Amicus Curiae Reversal: (argued); D. Colonel Antho- Steven Dubriske Major Rodgers A. ny P. Dattilo and Ronald brief) (on Appellate Government Divi- —For sion, USAF.

186

Judge opinion modify EFFRON delivered the of mander has unfettered discretion to the Court. findings any for and sentence reason— having long without to state a as reason —so pleas, appellee Pursuant to his con- was severity. there is no in increase See United special victed a court-martial a before Russo, 352, 11 USCMA 29 CMR alone, military judge attempting of to sell (1960). power 168 This dates from the earli- government property, conspiracy to commit est War larceny Articles of and Articles for the of Gov- government property, suffering wrongful Navy. ernment of the of disposition government property, of See Article War 47 larceny government property, of reprinted and in house- Manual for Courts-Mar- 80, 81, 108, breaking, in of tial, 1917, 316; violation Articles Army, 54(a), U.S. Art. 121, 130, Military and Uniform Code of Jus- Navy for the Articles Government of the tice, 921, 908, 930, §§ 10 USC and (1926), reprinted in Naval Courts and respectively. He was sentenced to a bad- Boards, 1937, 468; 89, see also Art. Arti- discharge, conduct confinement and forfei- cles for the Government the Armies of the per months, pay ture of month for 3 $600.00 States, reprinted Stat. 359 in grade. reduction to the lowest enlisted Winthrop, Military W. Law Precedents convening authority approved The sen- (2d 49, ed. 1920 Reprint); Art. Act for tence. Navy, the Government of the 1 Stat. 709 (1799). It upon responsibility is based unpublished opinion, an the Court (one for commander the state of disci- judge dissenting) pline justice in set aside the the command. action. The following instead of Congress has that the insisted UCMJ, requirement 60(d), in Article authority, prior acting on the record 860(d)(1983), §USC that he obtain and con any any general special court-martial or sider the written recommendation his staff court-martial in which the sentence includes (SJA) judge officer, legal advocate had discharge, a bad-conduct “shall obtain acted on pre the basis of a recommendation consider written recommendation of his pared by an enlisted who was legal staff officer.” Art. qualified to act an as SJA officer.* 60(d); see Manual RCM for Courts- Judge Advocate General certified the Martial, (1998 edition). United States Con- case to this Court and asked us to review the gress critical role underscored the of the SJA following issue: post-trial process by establishing in the crite- WHETHER THE NAVY-MARINE disqualify person acting ria that from as an CORPS COURT OF CRIMINAL AP- 6(c), in designated SJA situations. Art. PEALS ERRED WHEN IT RELIED 806(c). UCMJ, Likewise, § 10 USC orn- UPON ITS EARLIER DECISION IN emphasized importance eases have CUNNINGHAM, UNITED STATES V. in granting recommendation relief (N.M.Ct.Crim.App.1996) M.J. 758 IN disqualified cases which the SJA was be- FINDING THAT PLAIN ERROR CAN conflicting cause of interests. See United EXIST A WITHOUT OF SHOWING (CMA 1994); Lynch, 39 MJ 223 PREJUDICE BY THE APPELLANT. Rice, 33 MJ 451 1991); Engle, I (CMA 1976). distinguishing One features Congress When streamlined the military justice system au the broad Military process Justice Act of thority of the commander who convened 1396-97, 98-209, Pub.L. No. 97 Stat. elim- modify court-martial and sen adjudged Although frequently inating post-trial legal tence at trial. the need for a detailed SJA, clemency power, analysis legisla- exercised as the com- 1(12), 801(12) ("The designated perform legal *See Art. cer ... duties for command.”) any term officer’ means commissioned offi- Boatner, 20 U.S.C.M.A. an requirement tion retained C.M.R. con- to action prior recommendation 53, 98th authority. S.Rep. No. vening See court added: hearings During Cong., 1st Sess. ease advice each Complete and accurate *3 Armed authority of the Senate the convening a subcommittee with before a provides Committee, carry re- necessary out the guidance the General Counsel to Services 60(d), UCMJ, impos- Article Defense, sponsibilities response in to a Department the much more recommendation is es. The played by what role would be question about rec- action or mechanical than a ministerial legislation, stated: under the new the SJA Its concerning trial. facts the itation of advocate, convening as the judge The staff judgment in of the exist the heart soul jus- military authority’s on senior advisor adjudged the sen- as to whether drafter matters, qualified to person the best tice is appropriate and whether tence is convening to the make recommendation is warranted. how he should exercise his authority as to policy that the court further observed powers. of the recommendation requiring preparation legal reflected by judge on advocates or officers Hearings the Subcomm. on S. 2521 Before of such offi- only the “formal education” not the Senate Manpower and Personnel of that, cers, “by the fact virtue their but also Comm., Cong., 97th 2d Sess. Armed Services officers, they are status as commissioned (1982) question to (response by Mr. Taft charged unique responsibility with strict- Exon). report In its on the from Senator accountability personnel], enlisted [than er that the legislation, the Committee stated special confidence of and hold the trust and compile designated mate- not would 44 MJ at 763. the President.” rials, significant “discre- but would exercise types matters of additional tion” as to II brought convening au- be to the that should au- The recommendation Further, thority’s SJA would attention. thority prepared present in the case was not to the specific recommendation as “include officer, legal by by an or but Machinist’s sentence, along any appropriate recom- parties Petty Mate Officer R. Both Chief findings.” Emphasiz- as to the mendations person was agree that such an enlisted post-trial recom- ing importance provide post- qualified under the statute to mendation, that the observed Committee convening au- trial recommendation to the provided would be post-trial recommendation its thority. suggests in The Government principal advis- “the objecting appellee, brief that military justice S.Rep. No. on matters.” recommendation, any objec- waived 20; H.R.Rep. supra at accord No. quali- preparation person tion its Cong., 98th 1st Sess. 15 legal officer. to serve as an SJA or fied The court below reflected these consider- whether the The certified issue asks in en decision ations banc United plain er “finding erred that court below Cunningham, 44 where it MJ 758 can exist without a ror noted: objec appellant.” In the by the absence tion, analyze a claim of error under significance con- of the of the Because v. Pow plain error standard United States vening authority’s action is, (1998); ell, justice system, of the the recommendation “error”; was was whether it whether there judge officer staff materially prejudiced “plain”; whether it enormously convening authority is im- also 59(a), right Art. of the accused. a substantial portant, au- for the better 859(a). advised, thority fairly just- the more are ly command all criteria will that exercise post-trial rec- preparation of the acting on a case. met. discretion person ommendation an obligation enlisted constitut lishes an affirmative on tri- those 60(d). ed error under Article Given use bunals to review the record and reach then- 60(d) in Article terms independent well-understood own conclusion as to whether officer,” “legal “staff advocate” and and sentence should be affirmed. obtaining error in from a recommendation May, (1998); See United States 478MJ statutory who did not meet the crite Baker, “plain.” light ria was of the critical role 1989); Turner, United States 324MJ assigned by Congress to the SJA or (CMA 1987); Jones, USC- in advising officer authority in MA Nothing CMR 36 in either discretion, that officer’s exercise the fail 66(c) 59(a) precludes Article Article ure to obtain a quali recommendation from a Courts of identifying from *4 fied affected the substantial rights of prejudicial regard error without to the na- present case, the accused. where the quality ture or of an accused’s submission on accused submitted materials to the appeal. convening authority, convening the authori present In prejudicial impact the the ty’s reliance on a recommendation from an manifest, of the error was so the court’s unqualified person materially prejudiced the post-trial a new order for action falls well right of the accused to have his submission within the broad discretion of the Courts of by qualified considered officer Appeals Criminal to determine “whether an action, prior par harmless, error is whether corrective action ticularly in view of the low for a threshold by should be taken of the Court Criminal showing respect post- of Appeals, or whether the case should be re- trial recommendation matters. See United convening authority turned to the for new Wheelus, v. 49 MJ 289 Cook, action.” United MJ We need not address at this time whether prejudicial plain error could be found in an other case absent identification of specific of Appeals Court Criminal addressed matter that would have been considered prejudicial the impact of the error this post-trial the such as a by citing Cunningham, decision in presentation submission the accused of type which stated that this of “error serious- during pro similar matter sentencing the ly fairness, integrity public affects the and ceeding at trial. reputation proceedings.” The Cun- ningham opinion noted an un- that use of The certified issue asks whether qualified person the court finding plain below erred “in that error can exist preju without a to fulfill responsibility that statute appellant.” dice We answer that is vested in a staff com- question in negative. The Court of missioned officer strikes the core Appeals may prejudicial Criminal address er reputation of the integrity rors on its own motion and is not limited to justice [E]very in the naval service.... matters, any, if appellee’s discussed in appellant in the naval service should be that submission to court. noteWe that un fairness, expect able to that as matter 66(c), 866(c) der Article his or her case will be reviewed Appeals “may Courts Criminal have a recommendation from a only affirm such guilty, and the statutorily qualified officer. part sentence or such or amount of the sen In MJ 764. view of such a fundamental tence, as it finds correct in law and fact post-trial process, flaw in the the court cor- determines, record, on the basis of the entire rectly a new returned the case for approved.” Although should be the Courts SJA recommendation authori- Appeals in appropriate may Criminal cases ty’s action. rely on the failure identify of the accused to prejudicial relief, Ap- denying error as a basis for The decision of the Court 66(c) it well peals position is established that Article estab- is with the artic- consistent we affected his substantial Lee, error hood ulated Powell, MJ 460 rights. United States where we noted: (1998); v. Johnson- see also United States de- processing reflect posttrial Errors (1998) (Crawford, Saunders, 74,MJ 75-76 funda- errors are staff work. Such fective Edwards, ¡from J., dissenting); United States errors result- mentally different (1996) (Crawford, J., 114, 117-18 dissent MJ intense, dynamic atmosphere ing from the we should ing). This not a case where accept notion of a trial. We do any prejudice. say that reason presume To by staff are well served that commanders authority might suspend or able or inaccurate. incomplete work that is discharge or reduce confine set aside Likewise, accept notion that do if ment or forfeitures their staff are well served when commanders statutorily-qualified by a is advised statutorily unqualified assigned work is ignores circumstances person under these Lee, we stated that personnel. surrounding ap totality of the evidence of Crimi- that come to Courts records offenses, procedural pellee’s as well as staff work are nal with defective below disposition the case. The court ready such review. When simply authority simply order a does not have ... brought to the attention of errors are *5 affected by presuming that error new action Appeals, they should of Criminal Court rights of the defendant. See the substantial to au- promptly be returned 499, Hasting, 461 U.S. United thority of a new rec- preparation (1983). 1974, S.Ct. 76 L.Ed.2d and action. ommendation of Crimi- Id. Court incomplete Appellate review is hindered nal acted in accordance with the work, and an sloppy trial and applicable law. Code and case accept to appellate court should be forced However, there is a differ- such a record. Ill supervisory au- an exercise of ence between Navy- decision of the United States plain thority finding of error where no and a Corps Appeals or- Marine Court of Criminal showing has been made. See authority’s action is dering a new Cook, affirmed. Griffin, citing United States v. 8 USCMA 16, 17 24 CMR Cf. COX, Judge (concurring): Chief Smith, MJ 1993)(this juris- “supervisory exercised Court my colleague’s opinion. I I agree with diction”). said, Griffin, we In “Sometimes point. to write make small by returning the can be cured case error best court, every appellate in- my judgment proceedings level at which error courts, accept in- not have to deed trial do instances, occurred; reviewing in other complete sloppy I would work. never powers, authority, by the exercise of own require “prejudice” before send- effectively harmful conse- can eliminate the ing to a back proceed- quences in earlier error in the record. For fix administrative errors 207, 24 at 17. ings. ...” CMR 8 USCMA convening authority forgets to example, if a following one course precedents set sentence, sign approving the document greatly, may vary even than the other rather to allow the does that mean would have similar. the ultimate outcomes seem where go Personally, free be retried? accused fix it. I don’t think so. Just majority focuses on the nature While the as right affected and characterizes this CRAWFORD, (dissenting): Judge post-trial pro- “a flaw fundamental recognize cess,” it 51 MJ at does disagree with the ma- I because I dissent in the SJA’s there is a mistake preju- that where jority’s analysis of the error whether in the substance appellee. recommendation —either right Based diced substantial offenses, or in author —the is no likeli- the recommendation charged on the there Further, defense counsel and right. the accused have appellee has failed to make chance to comment on errors any showing contrary. to the made, recommendation. Once a comment is Reist, As we indicated in United States v. may simply agree agree or not 50 MJ 108 errors that are known see, 1106(d)(4); the comment. ROM e.g., pretrial the time of proceedings and trial are Thompson, 26 MJ 512 challenged contemporane waived where not denied, (ACMR), pet. Ei- However, ously. where the error way, ther an accused’s comments are before known, Dinges, such as in United Here, convening authority. defense (1998) Edwards, MJ 232 and United States v. counsel, in submitting an extensive supra, it is not waived. But our cases have package did not anything been but on clear waiver. See 2 F. object to the author of the SJA recommenda- Gilligan Lederer, & F. Court-Martial Proce though tion inadequate his rank was obvious. (1991 dure 24-64.20 & Supp.). object This failure to or comment is evidence there was impact no on a reasons, substantial For foregoing all I dissent.