United States v. Green

9 M.J. 637, 1980 CMR LEXIS 592
CourtU S Coast Guard Court of Military Review
DecidedMay 5, 1980
DocketDocket No. 824
StatusPublished
Cited by1 cases

This text of 9 M.J. 637 (United States v. Green) is published on Counsel Stack Legal Research, covering U S Coast Guard Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Green, 9 M.J. 637, 1980 CMR LEXIS 592 (cgcomilrev 1980).

Opinion

OPINION

MORGAN, Chief Judge:

Machinery Technician Third Class Larry A. GREEN, U. S. Coast Guard was tried by special court-martial convened by Commander, Thirteenth Coast Guard District on 1 August 1979. The accused pleaded guilty to and was convicted of conspiracy to commit larceny in violation of Article 81, Uniform Code of Military Justice, 10 U.S.C. § 881, one offense of wrongful appropriation of a truck and two offenses of larceny in violation of Article 121, UCMJ, 10 U.S.C. § 921 and of unlawfully entering a government tool storage room in violation of Article 130, UCMJ, 10 U.S.C. § 930. The members sentenced the accused to be confined at hard labor for one month, to forfeit $50.00 per month for six months, to be reduced to pay grade E-3 and to be discharged from the service with a bad conduct discharge. The sentence was approved by the convening authority.

Appellate defense counsel points out that there is no indication in the record that the accused has been provided a copy of the record as required by Article 54(c), UCMJ, 10 U.S.C. § 854(c); the staff legal officer’s review shows only “copy to” defense counsel rather than service of the review on defense counsel as required by U. S. v. Goode, 1 M.J. 3 (C.M.A.1975); and, there is no indication that the accused was advised of his appellate rights as required by paragraph 48k(3), Manual for Courts-Martial, 1969 (Rev.) and Section 512-1(a) of the Coast Guard Military Justice Manual, CG-488.

In reply the government has filed affidavits executed by trial counsel and defense counsel together with Receipts for Certified Mail. These show variously that defense counsel advised the accused of his appellate rights in accordance with paragraph 48k, MCM, 1969 (Rev.); that defense counsel received and reviewed the record of trial on 17 September 1979; that the accused receipted for a copy of the record of trial on 26 December 1979; and, that defense counsel receipted for a copy of the legal officer’s review and a copy of a proposed convening authority action on 26 November 1979. The affidavit of defense counsel also states that she consciously chose not to comment on the legal officer’s review or to submit a brief pursuant to Article 38(c), UCMJ, 10 U.S.C. § 838(c). The convening authority took action 5 December 1979.

Article 54(c), UCMJ, requires that “a copy of the record of the proceedings of each general and special court-martial shall be given to the accused as soon as it is authenticated.” This provision of the Code clearly contemplates that a copy of the transcript will be served on the accused well before action is taken by the convening authority since such action may not precede authentication. In U. S. v. Cruz-Rijos, 1 M.J. 429 (C.M.A.1976) the Court of Military Appeals said that the government had erred in failing to provide the accused a copy of the record of his trial as soon • as it was authenticated. The Court added, however, that in cases in which an accused has been transferred or confined at a location different from that where his trial defense counsel is located, the government may satisfy the spirit of Article 54(c) by serving the transcript on his counsel together with a [639]*639copy of the staff judge advocate’s review in accordance with the guidelines set forth in U. S. v. Goode, supra.

The record before us does not reveal the whereabouts of the accused prior to the convening authority’s action. However, the record does reveal that his defense counsel was an Army Judge Advocate stationed at Fort Lewis, Washington and the accused receipted for his copy of the record at Snoqualmie, Washington on 26 December 1979, some three weeks after the convening authority’s action. With this information we believe that we may, without further inquiry, assume that the accused and defense counsel were at different locations so that delivery of the record of trial to defense counsel for examination prior to the convening authority’s action satisfied the spirit of Article 54(c). We accept the affidavits of trial counsel and defense counsel as showing also that defense counsel was served with a copy of the legal officer’s review and a copy of the proposed convening authority action more than five days before the convening authority acted on the record so as to fulfill the requirements of U. S. v. Goode, supra. See U. S. v. Marcoux, 8 M.J. 155 (C.M.A.1980); U. S. v. Zimmel, 7 M.J. 711 (A.F.C.M.R.1979) petition for review by USCMA denied 7 M.J. 331.

Appellate defense counsel also challenges the adequacy of the legal officer’s review pointing out various inconsistent or misleading statements, e. g. a statement one place that the accused was tried 2 August 1979 while at another place it is asserted that he was tried 1 August 1979; a statement one place that the accused pleaded guilty to all charges and specifications while on another occasion it is stated that the military judge dismissed charge III and the specification thereunder on motion of the defense counsel before pleas were entered. Other discrepancies of equal import are also enumerated.

Accuracy in a legal officer’s review is imperative since errors which present a fair risk of misleading the convening authority in his review of the case may require a new advice. U. S. v. Fields, 9 U.S.C.M.A. 70, 25 C.M.R. 332 (1958); U. S. v. Cruse, 21 U.S.C.M.A. 286, 45 C.M.R. 60 (1972). Inaccuracies or misstatements which become minor when viewed in the context of the entire record will not justify setting aside an otherwise valid advice. U. S. v. Morris, 8 U.S.C.M.A. 755, 25 C.M.R. 259 (1958); U. S. v. Sulewski, 9 U.S.C.M.A. 490,26 C.M.R. 270 (1958); U. S. v. Russell, 2 M.J. 94 (C.M.A.1977). Tested by these standards we believe that the statements in the legal officer’s review in this case which are found by appellate defense counsel to be inaccurate or misleading are inconsequential when the review is considered as a whole so as to present no fair risk that the convening authority may have been misled. U. S. v. Morris and U. S. v. Sulewski, both supra. Trial defense counsel evidently also viewed the challenged statements as mere minor inaccuracies since she chose not to challenge the adequacy of the review. See U. S. v. Goode, supra; U. S. v. Watkins, 2 M.J. 1276 (C.G.C.M.R.1976); U. S. v. Barnes, 3 M.J. 406 (C.M.A.1977).

The principal issue advanced by appellate defense counsel is that statements made by the accused during inquiry into the providence of his guilty pleas pursuant to U. S. v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969) and testimony he gave during sentencing proceedings raised the defense of mistake of fact. These statements relate to the charge alleging conspiracy to steal a ship’s propeller, to a specification alleging larceny of the ship’s propeller and to a specification alleging wrongful appropriation of a government truck used to haul the propeller to the salvage company where it was sold.

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Bluebook (online)
9 M.J. 637, 1980 CMR LEXIS 592, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-green-cgcomilrev-1980.