United States v. Specialist STEVEN E. SPENCER

UNITED STATES ARMY COURT OF CRIMINAL APPEALS Before HOLDEN, CONN, and GIFFORD Appellate Military Judges UNITED STATES, Appellee v. Specialist STEVEN E. SPENCER United States Army, Appellant ARMY 20060040 25th Infantry Division and United States Army, Hawaii Debra L. Boudreau and Mark Toole, Military Judges Colonel Timothy J. Pendolino, Staff Judge Advocate (first recommendation) Lieutenant Colonel James H. Robinette, II, Staff Judge Advocate (first addendum) Lieutenant Colonel Ian R. Iverson, Acting Staff Judge Advocate (second recommendation) Lieutenant Colonel Martin L. Sims, Staff Judge Advocate (second addendum) For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew M. Miller, JA; Major Grace M. Gallagher, JA; Lieutenant Colonel Jonathan F. Potter, JA (on additional pleadings); Colonel Christopher J. O’Brien, JA; Lieutenant Colonel Steven C. Henricks, JA; Major Sean F. Mangan, JA; Lieutenant Colonel Jonathan F. Potter, JA (on brief). For Appellee: Major Elizabeth G. Marotta, JA; Captain Michael C. Friess, JA; Captain Sarah J. Rykowski, JA (on brief). 31 July 2009 ---------------------------------------------------------------------------- ------------------ SUMMARY DISPOSITION AFTER NEW RECOMMENDATION AND ACTION ---------------------------------------------------------------------------- ------------------ Per Curiam: A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of conspiracy to wrongfully introduce with intent to distribute Lysergic Acid Diethylamide (LSD) onto a military installation, wrongful introduction with intent to distribute a controlled substance (LSD and marijuana) onto a military installation, wrongful use of a controlled substance (LSD, cocaine, marijuana, and methylenedioxymethamphetamine (ecstasy) (four specifications)), and wrongful distribution of LSD, in violation of Articles 81 and 112a, Uniform Code of Military Justice, 10 U.S.C. §§ 881 and 912a [hereinafter UCMJ]. A panel of officer and enlisted members convicted appellant, contrary to his pleas, of wrongful distribution of ecstasy, in violation of Article 112a, UCMJ, and sentenced appellant to a bad-conduct discharge, confinement for eighteen months, and reduction to Private E1. On 29 May 2008, we issued a memorandum opinion finding the initial action ambiguous as to whether the convening authority approved the adjudged bad-conduct discharge. We further noted other errors and omissions in the Staff Judge Advocate (SJA) Recommendation (SJAR). The record of trial was returned “to the Judge Advocate General for a new [Rule for Courts-Martial (R.C.M.)] 1106 post-trial recommendation and new initial action by the same convening authority in accordance with Article 60(c)–(d), UCMJ.” On 19 February 2009, the convening authority executed a new action explicitly approving the sentence to a bad-conduct discharge. On 6 March 2009, the record of trial (ROT) was returned to this court for further review and we ordered appellate counsel to submit additional pleadings, if necessary. The ROT forwarded for our review did not contain some of the documents required by R.C.M. 1103(b)(3), including the corrected SJAR, and evidence that appellant or his counsel was served with the corrected SJAR and provided an opportunity to submit new clemency matters. On 21 July 2009, appellate defense counsel submitted a Motion to Attach an Affidavit from appellant. In the affidavit appellant states that he was never contacted by any trial defense counsel regarding his opportunity to submit new clemency matters. Appellant detailed items he would have submitted had he been afforded the opportunity. Through contact with the convening authority, the void in the record has been partially resolved with a copy of the new SJAR, dated 14 October 2008.( However, the SJA is unable to provide any evidence that either appellant or trial defense counsel was served with the SJAR prepared pursuant to R.C.M. 1106. In light of the government’s failure to serve the SJAR on appellant and his defense counsel, the ROT should be returned for a new SJAR and action. See United States v. Williams, 57 M.J. 1, 3 (C.A.A.F. 2002) (where SJAR not served on trial defense counsel prior to action, low threshold of “colorable showing of possible prejudice” met by trial defense counsel’s sworn declaration on comments he would have made as to omissions in the SJAR). Accordingly, the record of trial is again returned to The Judge Advocate General for a new R.C.M. 1106 post-trial recommendation and new initial action by the same or a different convening authority in accordance with Article 60(c)–(d), UCMJ. Thereafter, Article 66, UCMJ, will apply. FOR THE COURT: MALCOLM H. SQUIRES, JR. Clerk of Court ( This e-mailed document was served on appellate defense and government counsel on 30 July 2009 before being inserted into the record.