United States v. Kim

• Court: United States Air Force Court of Criminal Appeals
• Decided: May 9, 2022
• Docket: 40057
• Status: Unpublished

Opinion

U NITED S TATES AIR F ORCE C OURT OF C RIMINAL APPEALS ________________________

No. ACM 40057 ________________________

UNITED STATES Appellee v. Won-Jun KIM Air Force Cadet, U.S. Air Force, Appellant ________________________

Appeal from the United States Air Force Trial Judiciary Decided 9 May 2022 ________________________

Military Judge: Jennifer J. Raab. Sentence: Sentence adjudged on 20 November 2020 by GCM convened at The United States Air Force Academy, Colorado. Sentence entered by military judge on 7 January 2021: Dismissal and confinement for 45 days. For Appellant: Lieutenant Colonel Garrett M. Condon, USAF. For Appellee: Lieutenant Colonel Matthew J. Neil, USAF; Major Ab- bigayle C. Hunter, USAF; Mary Ellen Payne, Esquire. Before KEY, ANNEXSTAD, and MEGINLEY, Appellate Military Judges. Judge ANNEXSTAD delivered the opinion of the court, in which Senior Judge KEY and Judge MEGINLEY joined. ________________________

This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 30.4. ________________________ ANNEXSTAD, Judge: A general court-martial consisting of a military judge convicted Appellant, contrary to his pleas, of one specification of abusive sexual contact, in violation United States v. Kim, No. ACM 40057

of Article 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920, Man- ual for Courts-Martial, United States (2016 ed.) (2016 MCM); and acquitted Appellant of one specification of assault, in violation of Article 128, UCMJ, 10 U.S.C. § 928 (2016 MCM).1 The military judge sentenced Appellant to a dis- missal and confinement for 45 days. Appellant raises five assignments of error, which we have reworded: (1) whether Appellant’s conviction for abusive sexual contact is legally and factu- ally sufficient; (2) whether Appellant’s sentence was inappropriately severe; (3) whether Appellant is entitled to appropriate relief because he was not timely served with the victim’s submission of matters or provided an oppor- tunity to rebut the same in accordance with Rule for Courts-Martial (R.C.M.) 1106A, prior to the convening authority signing the Decision on Action memo- randum in his case; (4) whether Appellant’s court-martial was improperly re- ferred; and (5) whether the military judge erred by denying Appellant’s request to instruct the panel that a unanimous verdict was required to convict Appel- lant.2 We agree with Appellant’s third assignment of error and find he was not served a copy of the victim’s submission of matters or provided with an oppor- tunity to rebut the matters prior to the convening authority signing the Deci- sion on Action memorandum. We further find that remand to the Chief Trial Judge, Air Force Trial Judiciary, is appropriate. We defer addressing Appel- lant’s other assignments of error until the record is returned to this court for completion of our Article 66(d), UCMJ, 10 U.S.C. § 866(d), review.

I. BACKGROUND Appellant’s trial concluded on 20 November 2020. Four days later, on 24 November 2020, Appellant submitted his request for clemency to the conven- ing authority. In his request, he asked the convening authority to “disapprove the sentence of forty-five days confinement.” Appellant also stated that his clemency submission should “not be construed to waive or forfeit [his] right to submit matters in response to any matters submitted by the named victim in accordance with R.C.M. 1106A.” On the same day, the named victim, JM, sub- mitted matters to the convening authority in accordance with R.C.M. 1106A. The submitted matters consisted of JM’s written impact statement that had been admitted at trial. The Government concedes that the “record does not

1 Unless otherwise noted, all other references to the UCMJ and the Rules for Courts-

Martial are to the Manual for Courts-Martial, United States (2019 ed.). 2 Issues (4) and (5) were personally raised by Appellant pursuant to United States v.

Grostefon, 12 M.J. 431 (C.M.A. 1982).

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show Appellant was served with [JM]’s post-trial submissions as Appellant should have been under [R.C.M.] 1106A(c)(3).” On 2 December 2020, the convening authority took no action on the find- ings and approved the sentence as adjudged. On 7 January 2021, the military judge entered the judgment. On appeal, Appellant notes that he had a “right to rebut [JM]’s statement, highlight its unsworn nature, and submit matters in rebuttal to her claims of victim impact.”

II. DISCUSSION A. Law Proper completion of post-trial processing is a question of law this court reviews de novo. United States v. Sheffield, 60 M.J. 591, 593 (A.F. Ct. Crim. App. 2004) (citation omitted). Because they are matters of law, we review de novo interpretations of statutes, United States v. Martinelli, 62 M.J. 52, 56 (C.A.A.F. 2005) (citation omitted), and Rules for Courts-Martial, United States v. Hunter, 65 M.J. 399, 401 (C.A.A.F. 2008) (citation omitted). “In a case with a crime victim, after a sentence is announced in a court- martial any crime victim of an offense may submit matters to the convening authority for consideration in the exercise of the convening authority’s powers under R.C.M. 1109 or 1110.” R.C.M. 1106A(a). “The convening authority shall ensure any matters submitted by a crime victim under this subsection be pro- vided to the accused as soon as practicable.” R.C.M. 1106A(c)(3). If a crime victim submits matters under R.C.M. 1106A, “the accused shall have five days from receipt of those matters to submit any matters in rebuttal.” R.C.M. 1106(d)(3). “Before taking or declining to take any action on the sen- tence under this rule, the convening authority shall consider matters timely submitted under R.C.M. 1106 and 1106A, if any, by the accused and any crime victim.” R.C.M. 1109(d)(3)(A). A convening authority “may not consider mat- ters adverse to the accused without providing the accused an opportunity to respond.” R.C.M. 1106A(c)(2), Discussion. “[T]he convening authority is an appellant’s ‘best hope for sentence relief.’” United States v. Bischoff, 74 M.J. 664, 669 (A.F. Ct. Crim. App. 2015) (quoting United States v. Lee, 50 M.J. 296, 297 (C.A.A.F. 1999)). “Post-trial conduct must consist of fair play, specifically giving the appellant ‘notice and an oppor- tunity to respond.’” United States v. Hunter, No. 201700036, 2017 CCA LEXIS 527, at *4 (N.M. Ct. Crim. App. 8 Aug. 2017) (unpub. op.) (quoting United States v. Leal, 44 M.J. 235, 237 (C.A.A.F. 1996)). “Serving victim clemency cor- respondence on the accused for comment before convening authority action protects an accused’s due process rights under the Rules for Court-Martial and

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preserves the actual and perceived fairness of the military justice system.” United States v. Bartlett, 64 M.J. 641, 649 (A. Ct. Crim. App. 2007). When reviewing post-trial errors, this court will not grant relief unless an appellant presents “some ‘colorable showing of possible prejudice . . . .’” United States v. LeBlanc, 74 M.J. 650, 660 (A.F. Ct. Crim. App. 2015) (quoting United States v. Scalo, 60 M.J. 435, 436–37 (C.A.A.F. 2005)). Specifically concerning rebuttal matters, the United States Court of Appeals for the Armed Forces (CAAF) requires an appellant “to demonstrate prejudice by stating what, if an- ything, would have been submitted to deny, counter, or explain the new mat- ter.” United States v. Chatman, 46 M.J. 321, 323 (C.A.A.F. 1997) (internal quo- tation marks and citation omitted). The CAAF further explained that “the threshold should be low, and if an appellant makes some colorable showing of possible prejudice, we will give that appellant the benefit of the doubt and ‘we will not speculate on what the convening authority might have done’ if defense counsel had been given an opportunity to comment.” Id. at 323–24 (quoting United States v. Jones, 44 M.J. 242, 244 (C.A.A.F. 1996)). The low threshold for material prejudice reflects the convening authority’s entirely discretionary “power in granting clemency and is designed to avoid undue speculation as to how certain information might impact the convening authority’s exercise of such discretion.” Scalo, 60 M.J. at 437 (citation omit- ted).3 “If the appellant makes such a showing, the Court of Criminal Appeals must either provide meaningful relief or return the case to the Judge Advocate General concerned for a remand to a convening authority” for new post-trial action. United States v. Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998).4 B. Analysis Appellant contends that the convening authority erred by not ensuring that he was provided victim matters submitted by JM, and by signing the Decision on Action memorandum without providing Appellant the opportunity to rebut the victim matters. We agree and conclude new post-trial processing is re- quired. It is clear from the record before the court that Appellant was not provided with JM’s statement, submitted pursuant to R.C.M. 1106A, prior to the con- vening authority’s decision on action, nor was Appellant given the opportunity to respond to JM’s submission of matters before the convening authority signed

3 Although the CAAF in Scalo was interpreting a different version of Article 60, UCMJ,

10 U.S.C. § 860, that court has not indicated that its jurisprudence on these matters has changed with the recent updates to Article 60, UCMJ. 4 In Wheelus, the CAAF was also considering a different version of Article 60, UCMJ,

10 U.S.C. § 860.

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the Decision on Action memorandum. Here, the Appellant specifically re- minded the convening authority that his clemency submission did not “waive or forfeit [his] right to submit matters in response to any matters submitted by the named victim in accordance with R.C.M. 1106A.” Nonetheless, the conven- ing did not serve JM’s victim’s matter on Appellant, nor give him the oppor- tunity to rebut the victim’s matters, prior to taking action on Appellant’s case. This is not only clear error but a violation of Appellant’s most basic due process rights under the Rules for Courts-Martial. See Bartlett, 64 M.J. at 649. Finding error, we now turn our attention to prejudice. We conclude Appel- lant has met the low threshold of demonstrating some colorable showing of possible prejudice. Here, pursuant to Article 60(c)(2)(B), UCMJ, 10 U.S.C. § 860(c)(2)(B) (2016 MCM), the convening authority was authorized to take ac- tion on Appellant’s sentence by reducing his term of confinement. This is the exact relief that Appellant requested in his clemency matters. Furthermore, Appellant described, in his brief to this court, what rebuttal matters he would have submitted to the convening authority to “deny, counter, or explain” JM’s submission of matters. See Chatman, 46 M.J. at 323. We “will not speculate on what the convening authority might have done” had Appellant been given the opportunity to comment on JM’s submission of matters. See id. (quoting Jones, 44 M.J. at 244). We conclude that the relief warranted in this case is to provide Appellant with what he is entitled to: the right to be served with JM’s submission of mat- ters, and the opportunity to submit rebuttal matters for the convening author- ity’s consideration, before the convening authority decides whether to grant Appellant sentence relief or approve the adjudged sentence in its entirety.

III. CONCLUSION Appellant’s case is REMANDED to the Chief Trial Judge, Air Force Trial Judiciary, to resolve a substantial issue with the post-trial processing, as the convening authority signed the Decision on Action memorandum prior to Ap- pellant being afforded five days to submit a rebuttal to JM’s submission of mat- ters. Our remand returns jurisdiction over the case to a detailed military judge and dismisses this appellate proceeding. See JT. CT. CRIM. APP. R. 29(b)(2). A detailed military judge may: (1) Return the record of trial to the convening authority for new post-trial processing consistent with this opinion, specifically affording Appellant the opportunity to respond to the victim matters submitted under R.C.M. 1106A before the convening authority takes action;

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(2) Conduct one or more Article 66(f)(3), UCMJ, 10 U.S.C. § 866(f)(3), pro- ceedings using the procedural rules for post-trial Article 39(a), UCMJ, 10 U.S.C. § 839, sessions; and (3) Correct or modify the entry of judgment. Thereafter, the record of trial will be returned to the court for completion of appellate review under Article 66(d), UCMJ, 10 U.S.C. § 866(d).

FOR THE COURT

CAROL K. JOYCE Clerk of the Court