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Staff Judge Advocate’s Addendum. RCM 1106(f)(7)

Borderline Personality Disorder & False Accusations in Military Sexual Assault Cases

“The staff judge advocate or legal officer may supplement the recommendation after the accused and counsel for the accused have been served with the recommendation and given an opportunity to respond.”

  1. Must address allegations of legal error. Rationale not required; “I have consideredthe defense allegation of legal error regarding _________. I disagree that this was legal error. In my opinion, no corrective action is necessary.” See also United States v. McKinley , 48 M.J. 280, 281 (C.A.A.F. 1998) (Judge Cox’s interpretation of RCM 1106(d)(4) and how to respond to an allegation of legal error).
    1. See United States v. Keck , 22 M.J. 755 (N.M.C.M.R. 1986). See also United States v. Broussard , 35 M.J. 665 (A.C.M.R. 1992) (addendum stating “I have carefully considered the enclosed matters and, in my opinion, corrective action with respect to the findings and sentence is not warranted” was an adequate statement of disagreement with the assertions of accused). Need not give rationale or analysis – mere disagreement and comment on the need for corrective action sufficient.
    2. United States v. Welker , 44 M.J. 85 (C.A.A.F. 1996). Although error for SJA not to respond to defense assertions of legal errors made in post-trial submissions, the CAAF looked to record and determined there was no merit to the allegation of error raised by the defense in the RCM 1105/6 submissions. Consequently, the court held that there was no prejudice to the accused by the SJA’s failure to comment on the allegation of error raised by the defense. The court also reaffirmed the principle that a statement of agreement or disagreement, without statement of rationale, is OK. Court will test for prejudice. When (as here) the court finds no trial error, it will find no prejudice. See also United States v. Jones , 44 M.J. 242 (C.A.A.F. 1996) (comments on preparation of ROT were “trivial”); United States v. Hutchison , 56 M.J. 756 (A. Ct. Crim. App. 2002).
    3. United States v. Sojfer , 44 M.J. 603 (N-M. Ct. Crim. App. 1996). Seven page addendum recited alleged errors and said, “‘ My recommendation remains unchanged: I recommend that you take action to approve the sentence as adjudged ’ . . . He [SJA] made no other comment regarding the merit of the assigned errors.” Id . at 611. Government argued that “only inference . . . is that the [SJA] disagreed with all of the errors that were raised. We agree.” Id .
    4. United States v. Zimmer , 56 M.J. 869 (A. Ct. Crim. App. 2002). It was error for SJA not to respond to allegation of error regarding improper deferment denial.
  2. Ambiguous, unclear defense submission. If the submission arguably alleges a legalerror in the trial, the SJA must respond under RCM 1106 and state whether corrective action is needed.
    1. United States v. Williams-Oatman , 38 M.J. 602 (A.C.M.R. 1993). “Consideration of inadmissible evidence” is sufficient allegation of legal error.
    2. United States v. Hutchison , 56 M.J. 756 (A. Ct. Crim. App. 2002). Unsupported claim of onerous and illegal pretrial punishment which was not raised at trial after specific Article 13 inquiry by MJ and raised for the first time in clemency submission does NOT allege legal error requiring comment by the SJA. Likewise, alleged undue, non-prejudicial post-trial delay does not raise an allegation of legal error requiring comment by the SJA.
  3. RCM 1106(f)(7). Addenda containing “new matter” must be served on the defense.
    1. United States v. Leal , 44 M.J. 235 (C.A.A.F. 1996). If the additional information is not part of the record, i.e. , transcript, consider it to be new matter. Not enough that the information is contained “between the blue covers,” because that would permit government to highlight and smuggle to CA evidence offered but not admitted. Here, the addendum referred to a letter of reprimand; the failure to serve the addendum required a new PTR and action by a new CA. But see United States v. Brown , 54 M.J. 289 (C.A.A.F. 2000). New action not required where defense, on appeal, fails to proffer a possible response to the un- served addendum that “could have produced a different result.” Id . at 293.Court Martial24 Gonzalez &Amp; Waddington - Attorneys At Law
    2. United States v. Cook , 43 M.J. 829 (A.F. Ct. Crim. App. 1996), aff’d , 46 M.J. 37 (C.A.A.F. 1997). In two post-trial memos, the SJA advised the CA about the MJ’s qualifications and experience, the likelihood of the accused waiving an administrative separation board, and minimizing effects of BCD. The AFCCA disapproved the BCD because all of this was obviously outside the record and should have been served on accused with opportunity to comment.
    3. United States v. Harris , 43 M.J. 652 (A. Ct. Crim. App. 1995). Addendum mentioned for the first time that the accused had received three prior Article 15s; new review and action required.
    4. United States v. Sliney , No. 9400011 (A. Ct. Crim. App. 1995) (unpublished). The inclusion of letters from victim and victim-witness liaison required re-service; new action required. Accord United States v. Haire , 40 M.J. 530 (C.G.C.M.R. 1994).
    5. United States v. McCrimmons , 39 M.J. 867 (N.M.C.M.R. 1994). Reference in addendum to three thefts that formed basis for court-martial (“demonstrated by his past behavior that he is not trustworthy”), not “new matter.”
    6. United States v. Heirs , 29 M.J. 68 (C.M.A. 1989). The SJA erred by erroneously advising the CA in the addendum that Heirs’ admissions during the rejected providence inquiry could be used to support the findings of guilty once the accused challenged the sufficiency of the evidence post-trial.
    7. United States v. Jones , 44 M.J. 242 (C.A.A.F. 1996). Addendum explained post-trial delays and an Air Force Regulation on the Return to Duty Program (RDP). The CAAF held this information to be new matter under R.C.M. 1106(f)(7). However, error was harmless since many of the reasons for the delay were in the Record of Trial, and the contents of the regulation were clearly known to the defense since the defense asked for entry into the RDP.
    8. United States v. Catalani , 46 M.J. 325 (C.A.A.F. 1997). The addendum stated, “All of the matters submitted for your consideration in extenuation and mitigation were offered by the defense at trial; and the seniormost military judge in the Pacific imposed a sentence that, in my opinion, was both fair and proportionate to the offense committed.” This was held to be new matter under R.C.M. 1106(f)(7). The case was returned for submission to a different convening authority for action.
    9. United States v. Trosper , 47 M.J. 728 (N-M. Ct. Crim. App. 1997). The Division Sergeant Major attached a memorandum to the addendum that stated that “taking responsibility means he accepts the punishment awarded. . . . He has earned his brig time and his BCD.” The court found this to be unremarkable because commanders “seek the counsel of his or her trusted advisors in such a weighty matter.” Even if this was new matter, the appellant did not state how he would respond to the memorandum, so there was no prejudice.
    10. United States v. Cornwell , 49 M.J. 491 (C.A.A.F. 1998). CG asked the SJA whether the command supports the accused’s request for clemency. The SJA called the accused’s commanders, then verbally relayed their recommendations against clemency for the accused to the CG. The SJA then signed an MFR to that effect, and attached it to the ROT. The CAAF held the SJA’s advice to the CG is not new matter in the addendum under R.C.M 1106(f)(7), but may be new matter under RCM 1107(b)(3)(B)(iii) of which the accused’s is not charged with the knowledge thereof. However, even if such, the CAAF says the defense did not indicate what they would have done in response, so no relief.
    11. United States v. Anderson , 53 M.J. 374 (C.A.A.F. 2000). A paper-clipped, small (3 x 3 ½), hand-written note attached to the last page of the SJAR from the chief of staff to the convening authority that stated, “Lucky he didn’t kill the SSgt. He’s a thug, Sir.” was new matter requiring service on the accused and an opportunity to respond.
    12. United States v. Gilbreath , 57 M.J. 57 (C.A.A.F. 2002). Error for SJA, after a Judge Alone trial, not to serve addendum on defense which stated in part, “After hearing all matters, the jury determined a bad conduct discharge was appropriate and as such, I recommend you approve the sentence as adjudged.” Id . at 59. Defense could have pointed out that: (1) the trial was judge alone, and (2) the sentencing authority did NOT consider the clemency submissions. Note – the court also questioned whether the statement by the SJA was improper. “She [DC] also could have made a persuasive argument that the SJA’s recommendation that the CA defer to the judgment of the members was also legally improper.” Id . at 62.
    13. United States v. Gilbreath , 58 M.J. 661 (A.F. Ct. Crim. App. 2003), aff’d , 59 M.J. 400 (C.A.A.F. 2004) (summary disposition). After remand from the case above, the insertion in the SJA’s addendum of a statement of inability to locate appellant to serve her with post-trial documents constituted “new matter” requiring service on the appellant’s defense counsel and an opportunity to respond. The government could have avoided this issue by complying with the substitute service provisions of RCM 1106(f)(1), which simply require a statement in the record of trial explaining “why the accused was not served personally.” Applying the standard for relief enunciated in United States v. Chatman , 46 M.J. 321 (C.A.A.F. 1997) (appellant must “demonstrate prejudice by stating what, if anything, would have been submitted to ‘deny, counter, or explain’ the new matter.”), the AFCCA noted that the inability to locate appellant could be perceived by the CA as evidence of appellant’s disobedience of orders because she failed to provide a valid leave address while on appellate leave. Additionally, the CA could view the comment as an indication of how little she cared about her case because she failed to provide a proper mailing address for issues associated with her case. In light of the potential adverse impact of the SJA’s comments, the AFCCA found prejudice and determined that its charter to “do justice” mandated a new SJAR and action in the case. Id . at 665.
    14. United States v. Scott , 66 M.J. 1 (C.A.A.F. 2008). SJA’s lengthy rebuttal to defense assertions that the accused’s sentence was overly harsh was not a new matter. Unlike Catalani and Gilbreath , the SJA’s comments did not misinform the CA as to the matters contained in the accused’s clemency submissions or misstate the sentencing authority in the accused’s case.
    15. United States v. Frederickson , 63 M.J. 55 (C.A.A.F. 2006). The DSJA prepared the addendum, which was endorsed by the SJA. It was not served on the defense, despite all of the DSJA’s observations about the defense submissions. The CAAF held that the addendum constituted new matter, and should have been served on the defense. However, in this case, they held that the defense counsel could not demonstrate prejudice since the proferred defense response was the same.
    16. p) United States v. Tuscan , 67 M.J. 592 (C.G. Ct. Crim. App. 2008). Addendum contained the following: “I also disagree with the defense counsel’s statement that the accused is ‘remorseful for the events that transpired.’ . . . As you may recall, the pretrial offers, taken as a whole were unreasonable and on their face did not reflect a willingness on the part of the accused to fully accept responsibility.” The CGCCA finds that this comment, while not a complete picture of the pretrial negotiations, was not error. The CGCCA warns against doing this in the future, since the SJAR Addendum is not intended to be a “document of advocacy for the government. An SJA should not only be objective, as noted above, but also should maintain the appearance of objectivity.”
  4. Addendum should remind CA of the requirement to review the accused’s post-trialsubmissions. United States v. Pelletier , 31 M.J. 501 (A.F.C.M.R. 1990); United States v. Ericson , 37 M.J. 1011 (A.C.M.R. 1993).
      1. Informs the CA that the accused submitted matters and that they are attached;
      2. Informs the CA that he must consider the accused’s submissions; and,
      3. Lists the attachments.
    2. United States v. Foy , 30 M.J. 664 (A.F.C.M.R. 1990). Appellate courts will presume post-trial regularity if the SJA prepares an addendum that:United States v. Taylor , 67 M.J. 578 (A.F. Ct. Crim. App. 2008). In her clemency submissions to the convening authority, the appellant asked to enter the Return-To-Duty Program (RTDP). The addendum made no mention of this request, nor did it advise the convening authority of his options regarding the RTDP. The addendum did specifically list the appellant’s submissions and advised the convening authority that he had to consider them prior to taking action. No error.
  5. Who should sign the addendum? The SJA.
    1. United States v. Hudgins , 69 M.J. 630 (A. Ct. Crim. App. 2010). If the Deputy Staff Judge Advocate signs the addendum, then he or she should sign it as the Acting SJA. Signing it as the Deputy Staff Judge Advocate or “for” the SJA is improper under Article 60(d), UCMJ, and RCM 1106(a). No prejudice in this case because “the Deputy Staff Judge Advocate was an officer and experienced judge advocate who was statutorily qualified to sign the addendum as the Acting SJA in the SJA’s absence.”
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