United States v. Beaudin

35 M.J. 385, 1992 CMA LEXIS 176, 1992 WL 252283

• Court: United States Court of Military Appeals
• Decided: September 28, 1992
• Docket: No. 67,082; CM 9000898
• Status: Published

Opinions

Opinion

SULLIVAN, Chief Judge:

In the spring of 1990, appellant was tried by a general court-martial composed of a military judge sitting alone first at Fort Polk, Louisiana, and later at Fort Leavenworth, Kansas. Contrary to his pleas, he was found guilty of attempted possession¹ of 3, 4-methylenedioxymethamphetamine (MDMA); possession and use of MDMA and of lysergic acid diethylamide; wrongful distribution of MDMA; and fraternization, in violation of Articles 80, 112a and 134, Uniform Code of Military Justice, 10 USC §§ 880, 912a, and 934, respectively. He was sentenced to dismissal, confinement for 7 years, and total forfeitures. The convening authority approved the sentence on August 1, 1990. The Court of Military Review affirmed the findings of guilty and the sentence on May 29, 1991.

On November 7,1991, this Court granted review on the following question of law:

WHETHER THE STAFF JUDGE ADVOCATE ERRED BY ADVISING THE CONVENING AUTHORITY THAT CHARGE IV AND ITS SPECIFICATION (FRATERNIZATION) WAS NOT MULTIPLICIOUS FOR SENTENCING WITH CHARGE II AND ITS SPECIFICATIONS, THEREBY SUBSTANTIALLY MISLEADING THE CONVENING AUTHORITY.

We hold that the staff judge advocate’s recommendation was erroneous but that this legal error did not substantially prejudice appellant. See United States v. Craig, 28 MJ 321, 324 (CMA 1989); United States v. Flynn, 28 MJ 218 (CMA 1989).

Appellant pleaded not guilty to but was found guilty of the following drug offenses in violation of Article 112a:

SPECIFICATION 1: In that Captain Eddie L. Beaudin, ... did, at or near New Llano, Louisiana, ... between on or about 1 March 1989 and on or about 10 April 1989, wrongfully possess and use some amount of 3, 4-methylenedioxy-methamphetamine (MDMA), a schedule 1 controlled substance.

SPECIFICATION 2: In that Captain Eddie L. Beaudin ... did, ... at or near Leesville and New Llano, Louisiana, ... on divers occasions between on or about 13 April 1989 and on or about 14 April 1989, wrongfully possess and use some amount of 3, 4-methylenedioxymeth-amphetamine (MDMA), a schedule 1 controlled substance.

SPECIFICATION 3: In that Captain Eddie L. Beaudin ... did, ... at or near Fort Polk, Louisiana, ... between on or about 11 May 1989 and on or about 12 May 1989, attempt to wrongfully possess some amount of 3, 4-methylenedioxy-methamphetamine (MDMA), a schedule 1 controlled substance.

SPECIFICATION 4: In that Captain Eddie L. Beaudin ... did, ... at or near New Llano, Louisiana, ... between on or about 14 September 1989 and on or about 31 October 1989, wrongfully possess and use some amount of lysergic acid diethylamide (LSD).

SPECIFICATION 5: In that Captain Eddie L. Beaudin ... did, ... at or near New Llano, Louisiana, ... and at or near. Alexandria, Louisiana on or about 31 October 1989, wrongfully possess and use some amount of 3, 4-methylenediox-ymethamphetamine (MDMA), a schedule 1 controlled substance.

SPECIFICATION 6: In that Captain Eddie L. Beaudin ... did, ... at or near Alexandria, Louisiana on two occasions in November 1989, wrongfully distribute some amount of 3, 4-methylenedioxy-methamphetamine (MDMA), a schedule 1 controlled substance to Private James P. Kimbrell, a member of the U.S. Army.

(Emphasis added.)

Also, contrary to his pleas, he was found guilty of the following offense of fraternization in violation of Article 134:

SPECIFICATION: In that Captain Eddie L. Beaudin ... did at various locations in the vicinity of Fort Polk, Louisiana, ... Leesville and New Llano, Louisiana, ... between on or about 1 January 1989 and on or about 20 November 1989, knowingly fraternize with Private James P. Kimbrell, an enlisted person, and other enlisted personnel on terms of military equality, by frequently socializing with Private Kimbrell and other enlisted personnel at the Night Heat Club, Leesville, Louisiana, and # 83 Jean Chapel Trailer Park, New Llano, Louisiana, ... and the Late Night Club in Alexandria, Louisiana, and various other locations in Louisiana to include Captain Beaudin’s home in New Llano, Louisiana, and the Showcase Club (now the Time Zone) in Lees-ville, Louisiana, during which periods of socializing,

Captain Beaudin’s conduct compromised the chain of command, resulted in the appearance of partiality, and undermined good order, discipline, authority, and morale, in violation of the customs of the United States Army that officers shall not fraternize with enlisted persons on terms of military equality.

After announcing his findings, the military judge stated: “I’m treating Charge IV as merging with the remaining findings of guilty for sentencing purposes.” No objection was made by either trial or defense counsel. The staff judge advocate made no mention of this matter in his initial post-trial recommendation. However, defense counsel, in his response to that recommendation, noted the military judge’s ruling and asserted that the convening authority was being misled. The staff judge advocate responded in an addendum to his recommendation as follows:

a. Charge IV, fraternization is not multiplicious with the findings of guilty on the remaining charges adjudged by the judge. There was no error in the post-trial recommendation.

The convening authority approved the sentence as recommended by his staff judge advocate.

Article 60(d), UCMJ, 10 USC § 860(d) (1983), provides that the President shall prescribe by regulation the “matters” to be included in a staff judge advocate’s post-trial recommendation. RCM 1106(d), Manual for Courts-Martial, United States, 1984, states:

(d) Form and content of recommendation.

(1) In general. The purpose of the recommendation of the staff judge advocate or legal officer is to assist the convening authority to decide what action to take on the sentence in the exercise of command prerogative. The staff judge advocate or legal officer shall use the record of trial in the preparation of the recommendation.

(2) Form. The recommendation of the staff judge advocate or legal officer shall be a concise written communication.

(3) Required contents. Except as provided in subsection (e) of this rule, the recommendation of the staff judge advocate or legal officer shall include concise information as to:

(A) The findings and sentence adjudged by the court-martial;

(B) A summary of the accused’s service record, to include length and character of service, awards and decorations received, and any records of nonjudicial punishment and previous convictions;

(C) A statement of the nature and duration of any pretrial restraint;

(D) If there is a pretrial agreement, a statement of any action the convening authority is obligated to take under the agreement or a statement of the reasons why the convening authority is not obligated to take specific action under the agreement; and

(E) A specific recommendation as to the action to be taken by the convening authority on the sentence.

In light of this Manual provision, our first inquiry in this case is whether the military judge’s merger ruling was “concise information as to [t]he findings and sentence” which should be included in the staff judge advocate’s recommendation. See RCM 1106(d)(3). We note that this type of ruling establishes the number of offenses for which an accused can be separately punished as a matter of military law. Such information is a prerequisite for understanding a sentence. See RCM 1003c(l)(C).² See generally United States v. Baker, 14 MJ 361, 368 (CMA 1983). In addition, it provides an appropriate framework for intelligent clemency action by the convening authority. See Art. 60(c)(1); RCM 1107(d). Accordingly, we conclude that information concerning such a ruling should be included in a staff judge advocate’s post-trial recommendation. See generally United States v. Clear, 34 MJ 129 (CMA 1992).

Our next inquiry is whether the information in the post-trial recommendation provided by the staff judge advocate in appellant’s case was concise and legally correct. First, his initial recommendation failed to inform the convening authority that the judge had made a binding legal ruling that these offenses merged for purposes of sentencing. See generally United States v. Ware, 1 MJ 282 (CMA 1976). Second, his addendum to his recommendation compounded this error by providing advice to the convening authority which in context contradicted the judge on this question of law. See United States v. Hill, 27 MJ 293 (CMA 1988). Finally, the staff judge advocate provided no suggestions to the convening authority for resolving the conflict presented by these differing legal conclusions. These advisory deficiencies raise unacceptable doubt in our mind as to the legal rule which the convening authority relied upon in taking his critical post-trial action in this case. See United States v. Craig, 28 MJ at 325.

Our remaining concern in this case is the probability that appellant was prejudiced by the defective statement in the staff judge advocate’s recommendation. See Art. 59(a), UCMJ, 10 USC § 859(a); United States v. Hill, supra at 297. The maximum authorized confinement as determined by the military judge was 30 years. If the convening authority recomputed the maximum punishment based on the erroneous statement by his staff judge advocate, the maximum authorized punishment would have been 32 years. See para. 83e, Part IY, Manual, supra. Accordingly, appellant argues that if the convening authority had received the correct advice as to the lesser maximum punishment, he would have approved less than the 7 years’ confinement he actually approved.

We note, however, that the military judge who made the merger ruling imposed 7 years’ confinement. Moreover, this was a case involving an officer who not only repeatedly engaged in drug use but who also distributed drugs to an enlisted soldier. In view of the entire record, we are unpersuaded that a 2-year differential in the statement of the authorized punishment would have had a substantial impact on the convening authority’s post-trial approval action. Cf. United States v. Walker, 34 MJ 264 (CMA 1992) (10-year error in advice was substantial). Accordingly, no relief is warranted. See United States v. Flynn, supra.

The decision of the United States Army Court of Military Review is affirmed.

Judge WISS concurs.

1 . Note that the decision below erroneously reflects conviction of attempted use of MDMA.

2 . The Discussion to RCM 1003c(l)(C) states in part:

Even if each offense requires proof of an element not required to prove the other, they may not be separately punishable if the offenses were committed as the result of a single impulse or intent. For example, if an accused found guilty of larceny (see paragraph 46, Part IV) and of unlawfully opening mail matter (see paragraph 93, Part IV) opened the mail bag for the purpose of stealing money in a letter in the bag, the offenses would not be separately punishable. Also, if there was a unity of time and the existence of a connected chain of events, the offenses may not be separately punishable, depending on all the circumstances, even if each required proof of a different element.