United States v. Mallicote

[375] Opinion of the Court Kilday, Judge: The appellant was found guilty by a general court-martial convened at Custer Air Force Station, Michigan, of larceny of $185.20 and five specifications of forgery, in violation of Articles 121 and 123, Uniform Code of Military Justice, 10 USC §§ 921 and 923, respectively. He was sentenced to dismissal, forfeiture of all pay and allowances, and confinement at hard labor for three years. The convening authority approved the findings of guilty and the dismissal but reduced the period of confinement to two years and deferred application of the forfeiture. An Air Force board of review affirmed the approved findings and sentence without modification. Although several allegations of error were presented, this Court granted appellant’s petition for review on the sole issue of whether: “lieutenant colonel carl c. burget was disqualified to review THE RECORD OF TRIAL SINCE HE HAD PREVIOUSLY ACTED AS A MEMBER OF THE PROSECUTION.” A brief recitation of the facts is necessary for a proper understanding of the matter before us. The appellant, a member of the reserve corps, was ordered to active duty in April 1960. On May 1st he was assigned to the position of Secretary of the Officers’ Open Mess at Custer Air Force Station. His duties as secretary included the employment and discharge of employees and preparation of the payroll pertinent thereto. In preparing the payroll for the period ending October 31, 1960, appellant added the name of John Straub, a former employee of the mess who had been transferred prior thereto and who was not employed during the period to which the payroll pertained. A check prepared in the amount of $35.80, payable to Straub, was signed by the appellant. He thereafter endorsed the check with the name “John Straub,” cashed it from the check cashing account maintained by him at the mess, and retained the money for his own use. Appellant then submitted the check to the Industrial State Bank, Augusta, Michigan, for credit to the account of the Officers’ Open Mess, Custer Air Force Station, Battle Creek, Michigan. Appellant repeated this identical procedure in the four subsequent semi-monthly payroll periods, November 15th through December 31, 1960, the only difference being in the amounts of the purported payments, which ranged from $30.00 to $41.90. The total monies obtained by the appellant by this procedure was $185.20, the basis for the charge of larceny. The appellant’s activities came to light when he was transferred from his position as secretary early in January 1961 and his successor, who was acquainted with the aforementioned John Straub and knew of the latter’s transfer from the base, discovered one of the fraudulent checks in a routine review of the records of the mess and so informed the appellant on February 14th. On February 20th the appellant, in a signed statement given to a representative of the Office of Special Investigations, admitted submitting false payrolls in the manner set forth above and thereafter converting the monies so obtained to his own use. However, he attempted to justify his action on the ground that he was required to put in a considerable amount of additional time in order to properly fulfill his responsibilities, and to do some of the work of his assistant who was daily diverted from his job to duties in the squadron orderly room. He completed his recital of events by stating “I firmly believe I was entitled to at least as much as I received in this manner for the many extra hours which I put in.” Charges were preferred against the appellant on March 24, 1961. On June 23d, pursuant to Article 34, Uniform Code of Military Justice, 10 USC § 834,1 [376] Lieutenant Colonel Carl E. Burget, Acting Stall Judge Advocate, 30th Air Division (SAGE), Truax Field, Wisconsin, prepared the “advice” for the convening authority in which he reviewed the charges and specifications, the report of pretrial investigation and the allied papers, and concurred in the recommendations of the investigating officer and the commanders of the Air Base Squadron and Air Defense Sector, Custer Air Force Station, that Malli-cote be tried by general court-martial. Thereafter, on July 3d, Colonel Burget, still Acting Staff Judge Advocate, forwarded a ten-page “Advice to Trial Counsel” in which he instructed the prosecutor as to the preparation .and presentation of the case for the Government. The closing paragraph directed that a copy of the letter was to be served on the accused, together with the charges and allied papers. Subsequent to Mallicote’s conviction, Burget, as assistant staff judge advocate, reviewed the record of trial and prepared the recommendations and advice to the convening authority in accordance with the provisions of Article 61, Uniform Code of Military Justice, 10 USC § 861.2 While the same was expressly adopted and concurred in by the staff judge advocate, the memorandum admittedly was authored by his assistant.3 Appellate defense counsel contend ■that the aforementioned “Advice to Trial Counsel” was so complete as to constitute “an outline of trial strategy which sought to describe in detail the trial tactics most conducive to securing a conviction. . . . that Lieutenant Colonel Burget, and not Captain Koz-lowski [trial counsel], was the master strategist, who devised to the most minute detail the prosecution’s plan of attack, and that the latter was in actuality but the in-court alter ego of the former.” By so doing, Colonel Burget “became a de facto member of the prosecution” and thereby disqualified from subsequently acting as staff judge advocate or legal officer as proscribed by Article 6(c), Uniform Code of Military Justice, 10 USC § 806, which provides : “No person who has acted as member, law officer, trial counsel, assistant trial counsel, defense counsel, assistant defense counsel, or investigating officer in any case may later act as a staff judge advocate or legal officer to any reviewing authority upon the same case.” If, as alleged by appellate defense counsel, Burget “acted as a member of the prosecution,” he is barred from subsequently advising the reviewing authority in this case. For although the staff judge advocate or his assistant are not, by reason of their office and ordinary pretrial activities, barred by Article 6 (c) from subsequently advising the reviewing authority, the implication and reason why he must be when he acts — directly or indirectly — as trial counsel, are clear. As we stated in United States v Coulter, 3 USCMA 657, 14 CMR 75, “The obvious purpose of the lawmakers in prohibiting trial 'counsel from subsequently acting as the Staff Judge Advocate on the review of the same case was to assure the accused [377] a thoroughly fair and impartial review.” The right to an impartial review is an important right which must be recognized in the military judicial system and an accused is entitled to have the record reviewed and the limits of his sentence fixed by a commander who is free from any connection with the controversy. United States v Gordon, 1 USCMA 255, 2 CMR 161. So, too, the subordinate advising such reviewing authority must occupy a similarly uneolored vantage point from which to assess the pertinent facts and circumstances. In United States v Hightower, 5 USCMA 385, 18 CMR 9, we had occasion to compare Article 6(c), supra, with Article 27 (a) of the Code, 10 USC § 827.4 Therein we stated that: “Each of these articles of the Uniform Code prohibits persons who act in one capacity ‘in any case’ from thereafter performing duties in an inconsistent capacity ‘in the same case.’ The plain purpose of these provisions is to preclude situations which impair or destroy the fairness and impartiality of the proceedings against the accused.” See also United States v Albright, 9 USCMA 628, 26 CMR 408. That conclusion is in full accord with the following comment in the Legal and Legislative Basis, Manual for Courts-Martial, United States, 1951, at page 138; “[ajlthough not mentioned in Article 6c, it follows that any person who has acted in a partisan capacity . . . should not act subsequently as the staff judge advocate or legal officer in the same case.” The staff judge advocate is peculiarly vulnerable in such a potential conflict of interest. Because of his position as administrator of military justice and discipline and as legal advisor to the command to which he is attached, his services are available to all. He must act in an independent and impartial capacity and does not represent only the Government. In the preliminary investigating stage, he is an impartial advisor to both the Government and the accused. United States v DeAngelis, 3 USCMA 298, 12 CMR 54; United States v Gunnels, 8 USCMA 130, 23 CMR 354. Since he has several functions to perform, “the Staff Judge Advocate must use his intelligence and experience to keep from becoming at one stage of the proceedings so personally involved in the outcome as to preclude him from acting in a later stage.” United States v Gunnels, supra; citing United States v Turner, 7 USCMA 38, 21 CMR 164, and United States v Haimson, 5 USCMA 208, 17 CMR 208. Inasmuch as the lines of • distinction between his obligation to both defense and prosecution, and to the command as well, are fine ones indeed, it is not surprising that on occasion the issue of conflict therein is raised by appellate defense counsel. The very nature of these obligations makes the issue paramount. However, since the pretrial advice of the staff judge advocate submitted in compliance with Article 34 (a) of the Code, supra, minimizes the risk of error arising from faulty pretrial investigations and appreciably reduces the preference of ill-founded charges against those subject to military law, the risk of overstepping the bounds of impartiality on later review is justifiable. Indeed, in enacting the Uniform Code, Congress did not appear to think that the staff judge advocate should be disqualified for his later reviewing function by reason of a prior expression of opinion in connection with reference for trial. United States v Thomas, 3 USCMA 798, 14 CMR 216; United States v Haimson, supra. See also United States v Blau, 5 USCMA 232, [378] 17 CMR 232. In fact, he is specifically required to do so by the last-mentioned provision of the Code. And, in connection with the discharge of that duty, we note that the Legal and Legislative Basis, Manual for Courts-Martial, supra, indicates at page 141 that the pretrial advice to the convening authority shall also include a statement of the elements of the offense and the law in point, if not contained in the Manual. It is only when the staff judge advocate oversteps the bounds of impartiality and becomes a “member” of the prosecution that he is estopped from thereafter passing judgment on the fruit of his labors. In the case at hand we have minutely scanned the staff judge advocate’s advice to the trial counsel and find it almost identical with that which we considered in Haimson and Blau, both supra. As in the last-cited cases, so here also, the board of review determined the contents of this letter to be within the permissible limits of instructions to the trial counsel, which instructions could have been incorporated in the advice to the convening authority under Article 34 of the Code, supra. Had this been done, the board observed, citing United States v Thomas, supra, the appellant would have had no valid cause to complain. Be that as it may, we are constrained to note additional reasons why this action is not indicative of partiality: Primarily, the tone of the letter of which complaint is made is instructive and permissive, not mandatory, as evidenced by the heading of paragraph five, which contains the alleged trial strategy: “The following matters involving prosecutor’s case in chief are set forth for your consideration.” (Emphasis supplied.) The fact that trial counsel thereafter prosecuted his case along the lines suggested, of course, does not, per se, relegate him to the role of parrot for the staff judge advocate. Trial counsel was an experienced advocate and certified in accordance with codal provisions. In view of the abundance and strongly inculpatory nature of the evidence available against accused, it is not unlikely he would have handled his case in much this same manner had he not received the advice. The second factor of note to us is contained in the last paragraph of the advice. Therein trial counsel was directed by the staff judge advocate to serve a copy of the letter “immediately upon the accused.” Thus both parties were put on notice of various aspects of the case important to each. Were the letter to be seriously considered as trial strategy, this is the last thing a member of the prosecution team would desire. Obviously, by his direction, the staff judge advocate evidenced his impartiality. Further, in the post-trial review and advice, for which appellate defense counsel urge he is disqualified, Colonel Burget recommended both a deferral of the forfeitures until the sentence be ordered executed and a reduction of the period of confinement from three to two years. In the face of a possible maximum sentence including twenty-five years’ incarceration, we find it difficult to believe that a “de facto member of the prosecution” would so recommend. Lastly, it should not be left out of consideration that Burget, acting in the place of the staff judge advocate, was— as we have previously pointed out — performing a statutory duty in preparing the pretrial advice and post-trial review. See Articles 34 and 61, Uniform Code of Military Justice, supra. It is the latter task from which we are importuned to hold he was barred. Yet nowhere in the record, including the allied papers, do we find any indication or allegation that the post-trial review —a thirty-page, carefully worded document — was other than wholly fair and complete. Manifestly an accused is entitled to have his post-trial review prepared by an impartial legal advisor. We hasten to point out, however, that such review in the instant case is assuredly not the reflection of any partisan handicraft by Colonel Burget. Moreover, in view of the posture of this case, there is nothing in the pretrial memorandum which would tend to inculcate a predisposition in Burget [379] to act on the post-trial review as anything but an impartial advisor. For the above-stated reasons and, in accordance with our decision in United States v Haimson, supra, the decision of the board of review is affirmed. Chief Judge Quinn concurs. Footnotes [1] “Before directing the trial of any charge by general court-martial, the convening authority shall refer it to his [376] staff judge advocate or legal officer for consideration and advice. The convening authority may not refer a charge ,to a general court-martial for trial unless he has found that the charge alleges an offense under this chapter and is warranted by evidence indicated in the report of investigation.” [2] “The convening authority shall refer the record of each general court-martial to his staff judge advocate or legal officer, who shall submit his written opinion thereon to the convening authority.” [3] Manifestly it is of no legal significance to the issue before us that the staff judge advocate adopted and concurred in Colonel Burget’s post-trial review. If the latter’s activities disqualified him, the staff judge advocate — even though himself without previous connection with the case — cannot, by ratifying the post-trial recommendations, provide the impartiality directed by the statute. United States v Hightower, 5 USCMA 385, 18 CMR 9; United States v Crunk, 4 USCMA 290, 15 CMR 290. [4] “For each general and special court-martial the authority convening the court shall detail trial counsel and defense counsel, and such assistants as he considers appropriate. No person who has acted as investigating officer, law officer, or court member in any case may act later as trial counsel, assistant trial counsel, or, unless expressly requested by the accused, as defense counsel or assistant defense counsel in the same case. No person who has acted for the prosecution may act later in the same case for the defense, nor may any person who has acted for the defense act later in the same case for the prosecution.”