UNITED STATES, Appellee, v. Brian H. HENSLEY, Sonar Technician (Surface) Seaman, U.S. Navy, Appellant.
No. 99-0111
U.S. Court of Appeals for the Armed Forces
March 22, 2000
52 M.J. 391
Crim.App. No. 98 0225. Argued Nov. 10, 1999.
For Appellant: Lieutenant M. Eric Eversole, JAGC, USNR (argued); Lieutenant Commander R.C. Klant, JAGC, USN (on brief).
For Appellee: Lieutenant Danette L. Walker, JAGC, USNR (argued); Colonel Kevin M. Sandkuhler, USMC, and Commander Eugene E. Irvin, JAGC, USN (on brief); Major Troy D. Taylor, USMC.
Judge GIERKE delivered the opinion of the Court.
A military judge sitting as a special cоurt-martial convicted appellant, pursuant to his pleas, of attempted larceny and larceny, in violation of
Our Court granted review of the following issue:
WHETHER THE LOWER COURT ERRED IN FINDING THAT IT WAS NOT PLAIN ERROR FOR THE POST-TRIAL RECOMMENDATION IN APPELLANT‘S CASE TO BE PREPARED BY A “COMMAND SERVICES OFFICER” WHO WAS NEITHER THE CONVENING AUTHORITY‘S STAFF JUDGE ADVOCATE NOR HIS LEGAL OFFICER.
For the reasons set out below, we affirm.
Factual Background
Appellant‘s court-martial was convened by the commanding officer of the USS JOHN PAUL JONES. The shiр‘s legal officer asked Lieutenant (LT) Kevin Stampher, Command Services Department Head at the
LT Stampher prepared a post-trial recommendation and submitted it to the convening authority. He signed his own name and identified the document as coming from “Command Services Officеr, Trial Service Office West.” The defense was served with the post-trial recommendation and did not object to having it prepared by LT Stampher instead of the ship‘s legal officer. Defense counsel did, however, point out to LT Stampher that he had neglected to mention appellant‘s petition for clemency. LT Stampher then submitted an addendum to his recommendation and served a copy on the defense counsel, аgain identifying himself and his organization in the same manner as in the post-trial recommendation. Again, defense counsel did not challenge LT Stampher‘s authority.
The record is silent on the involvement of the convening authority in obtaining the assistance of LT Stampher. It does not reflect whether the ship‘s legal officer was directed to request that LT Stampher prepare the post-trial recommendation, or whether the request was with the knоwledge or approval of the convening authority. During oral argument, however, appellate government counsel conceded that LT Stampher was not formally designated by competent authority to act as legal officer in this case. Because LT Stampher identified himself and his organization, it is evident that the convening authority knew the source of the post-trial recommendation and chose to rely on it.
Discussion
Appellant now asserts that LT Stampher was statutorily unqualified to prepare and submit the post-trial recommendation, because he was not the convening authority‘s legal officer. The Government does not directly contest the holding of the court below that it was error for LT Stampher to prepare and submit the post-trial recommendations. The Government argues that any error falls short of plain error and, thus, was waived by appellant‘s failure to object to the authorship of the post-trial recommendation.
If the convening authority does not have a staff judge advocate or legal officer, or if the person serving in that capacity is disqualified under subsection (b) of this rulе or otherwise, the convening authority shall:
(A) Request the assignment of another staff judge advocate or legal officer to prepare a recommendation under this rule; or
(B) Forward the record for action to any officer exercising general court-martial jurisdiction as provided in RCM 1107(a).
Neither Article 60 nor RCM 1106 requires that the convening authority‘s request for designation of another staff judge advocate or legal officer bе in writing or personally communicated by the convening authority.
The granted issue is a question of first impression for this Court. However, the Army and Navy courts have addressed the issue, with opposite results. In United States v. Sparks, 20 MJ 985 (NMCMR 1985), the court-martial was convened by the commanding officer, USS MCKEE, who had a legal officer assigned to his ship. For reasons not disclosed in the record, the post-trial recommendation was prepared by the staff judge advocate (SJA) for the Commander Submarine Squadron Three (COMSUBRONTHREE). The Navy-Marine Corps Court of Military Review applied the presumption of regularity and denied a motion from appellate defense counsel to produce the document requesting the SJA of COMSUBRONTHREE to prepare the post-trial recommendation. Having presumed that the convening authority had properly requested the SJA of COMSUBRONTHREE to act in place of his legal officer, the Navy court also tеsted for prejudice and found none.
In United States v. Hall, 39 MJ 593 (ACMR 1994), the Army court again found error when the wrong SJA prepared the post-trial recommendation. The SJA, Fort Riley, Kansas, prepared the post-trial recommendation and served it on the defense. The defense alleged that the Fort Riley SJA was disqualified because a subordinate of the SJA had initiated the charges. The Fort Riley SJA requested the SJA, Fort Leavenworth, Kansas, to prepare the post-trial recommendation. Like Gavitt, the case was informally transferred by agreement between the two SJAs involved, without involving the convening authorities. Unlike Gavitt, however, the court in Hall found that the error was “consciously and deliberately waived.” Id. at 595. The court found waiver based on comments from the trial defense counsel after being served with the Fort Leavenworth SJA‘s recommendation, where defense counsel commented that the disqualificаtion of the Fort Riley SJA was resolved by having another SJA prepare the recommendation.
Because the Government has conceded error in the case before us, we need not decide whether the presumption of regularity invoked by the Navy court in Sparks should be applied. We turn instead to the question whether the conceded error amounts to plain error. See United States v. Powell, 49 MJ 460, 463-65 (1998). The error was obvious, because LT Stampher cleаrly identified himself as someone other than the ship‘s legal officer. The key question is whether the error materially prejudiced a substantial right.
Once competent authority designates a substitute SJA or legal officer, that officer becomes the convening authority‘s SJA or legal officer within the meaning of
We note also that this case involves more than a passive waiver. Defense counsel not only did not object to LT Stampher submitting the post-trial recommendation, he affirmatively interacted with him, calling appellant‘s clemency petition to his attention. LT Stampher responded by submitting an addendum to the convening authority and serving a copy on defense counsel. Defense counsel again did not avail himself of the opportunity to challenge LT Stampher‘s authority to submit the addendum. Thus, this case presents a situation more akin to the affirmative waiver found by the Army court in Hall.
Finally, even assuming arguendo that there was plain error, we are satisfied that appellant was not prejudiced as to result. Because LT Stampher was qualified as a legal officer, we are not faced with the same error as in Finster. There is nothing in the record suggesting, and appellant does not assert, that there was any forum shopping or
Decision
The decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.
SULLIVAN, Judge, with whom EFFRON, Judge, joins (dissenting):
The majority has given no reason why this Court should not be bound by Finster in this case. Both cases are remarkably similar. In both Finster and this case, there was a post-trial recommendation made by a nonlawyer designated as a legal officer. In fact, in Finster, the designated “legal officer” (it should be noted that he was an enlisted noncommissioned officer) was аn honors graduate of the Naval Justice School‘s Legal Officer Course. United States v. Finster, supra; appellant‘s final brief at 2. Furthermore, in Finster, just as in this case, there was no objection to the post-trial recommendation. Comparing both Finster and the case at bar, the core issue which emerges is: Was appellant prejudiced by the post-trial recommendation prepared by a person unqualified under
In Finster, this Court answered that question by holding that the nonlawyer who was functioning as a legal officеr was unqualified under the UCMJ and that his preparation of the post-trial recommendation was a “fundamental flaw.” 51 MJ at 186-88. In the case at bar, the question (on the prejudice of an unqualified person preparing the recommendation) should similarly be answered in the affirmative. The nonlawyer “legal officer” here was unqualified because he was not the legal officer of the convening authority. See also Cooke v. Orser, 12 MJ 335, 344 (CMA 1982) (Congress intended speciаl relationship between commander and his staff judge advocate). In both Finster and in this case, a nonlawyer, unqualified under the plain wording of the UCMJ, gave the post-trial recommendation. In Finster, this Court gave relief. The same result should be followed here. Accordingly, I dissent.
EFFRON, Judge (dissenting):
I agree with Judge Sullivan‘s dissent and offer the following additional views.
As indicated in the majority opinion, both parties agree that it was error to have appellant‘s post-trial recоmmendation prepared by a “command services officer” who was nei-
During hearings before a subcommittee of the Senate Armed Services Committee, the General Counsel of the Department of Defense highlighted thе fact that the SJA or legal officer, as the convening authority‘s senior advisor on military justice matters, would be the person best qualified to make a recommendation to the convening authority as to how he should exercise his powers. See id. at 187, quoting Hearings on S. 2521 Before the Subcomm. on Manpower and Personnel of the Senate Armed Services Comm., 97th Cong., 2d Sess. 87 (1982) (response by Mr. Taft to question from Senator Exon). In its report on the legislation, the Senate Armed Services Committee emphasized the importance of the relationship between the convening authority and his legal advisor by stating that the post-trial recommendation would still be provided “by the convening authority‘s principal advisor on military justice matters.” Id., quoting S.Rep. No. 53, 98th Cong., 1st Sess. 20 (1983), U.S.Code Cong. & Admin. News 1983, p. 2177.
The relationship between the convening authority and his or her legal advisor has been an important feature of the UCMJ since its enactment in 1951.
Other provisions of the UCMJ underscore the significance of the rеlationship between the convening authority and his SJA or legal officer.
As the majority points out, there are certain circumstances in which a substitute SJA or legal officer from another сommand may be assigned to prepare the post-trial recom-
In the present case, the post-trial recommendation was prepared by LT Stampher, an officer on limited duty temporarily assigned to the Trial Service Office West as a “Command Service Officer“. The Government conceded during orаl argument that LT Stampher was not formally designated by competent authority to act as the legal officer in this case. The Government acknowledged that the convening authority‘s legal officer asked LT Stampher to prepare the post-trial recommendation because the legal officer did not know how to properly prepare the document. Rather than asking for assistance or for the convening authority to refer the case to a qualified legal officer, the legal officer took it upon himself to ask LT Stampher to prepare the document for the convening authority.
The Government contends that “[h]ad the command‘s legal officer known how to prepare the recommendation it would have been identical in every respect except its authorship.” Answer to Final Brief at 7. Therein lies the fundamental problem with this case. The post-trial recommendation is not simply a fill-in-the-blank form that anyone can complete by inserting personnel data. It is statutorily designated as a “recommendation.” As such, it must reflect an exercise in discretion, judgment, and reason by the person designated to serve as the convening authority‘s advisor on military justice matters. The Government‘s assumption that recommendations written by two different people—exercising their оwn discretion, judgment, and reason—would necessarily produce identical recommendations demonstrates a fundamental misunderstanding as to the very purpose of a post-trial recommendation. As the Court of Criminal Appeals said in United States v. Cunningham, 44 MJ 758, 763 (N.M.Ct.Crim.App.1996), “The recommendation is much more than a ministerial action or mechanical recitation of facts concerning the trial. Its heart and soul exist in the judgment of the drafter....”
The Government suggests that appellant benefited from the fact that the designated legal officer did not prepare the recommendation because he “was unsure how one should be drafted.” Answer to Final Brief at 7. In other words, appellant should feel grateful that the recommendation was prepared by an unqualified nonlawyer rather than an incompetent nonlawyer. Considering the fact that only the seagoing services are permitted to use nоnlawyers to prepare post-trial recommendations, see Arts. 1(12) and 60(d), there is no excuse for permitting a servicemember‘s case to be reviewed by a nonlawyer who is either unqualified or incompetent.
As this Court indicated in United States v. Curry, 28 MJ 419, 422 (CMA 1989), Congress afforded the flexibility of using nonlawyers to the naval services because many “special courts-martial are convened by commanders of vessels and deployed units to which a staff judge advocate is not assigned; and for them it may be difficult and time-consuming to arrange for the record of trial to be examined by a lawyer.” This exception, however, did not contemplate that the seagoing services would fail to properly train its nonlawyer legal officers to perform these critical functions, or that they would permit these officers to designate unqualified persons to do so.
As we held in Finster, and as the Navy-Marine Corps Court correctly noted in Cunningham, the use of a statutorily unqualified person to prepare the post-trial recommendation
strikes at the core of the integrity and reputation of military justice in the naval service.... [E]very appellant in the naval service should be able to expect that as a matter of fairness, his or her case will be
reviewed by and have a post-trial recommendation from a statutorily qualified officer.
51 MJ at 188, quoting Cunningham, supra at 764. Appellant is entitled to the same expectation in this case. See Finster, supra at 189 (“aрpellate court[s] ... do not have to accept incomplete or sloppy work. I would never require a showing of ‘prejudice’ before sending a case back to a convening authority to fix administrative errors in the record.“) (Cox, C.J., concurring).
In accordance with the Code and applicable case law, I would reverse the decision of the United States Navy-Marine Corps Court of Criminal Appeals and order a new convening authority‘s action and recommendation by his own legal officer.