United States v. Private JAMES A. GILLESPIE

Opinion

UNITED STATES ARMY COURT OF CRIMINAL APPEALS Before

COOPER, WILLIAMS, and SCHLACK Appellate Military Judges

UNITED STATES, Appellee

v.

Private E2 JAMES A. GILLESPIE United States Army, Appellant

ARMY 20250350

Headquarters, 2d Infantry Division Mitchell D. Herniak, Military Judge Lieutenant Colonel Stacee B. Cain, Special Trial Counsel Lieutenant Colonel Patrick R. Sandys, Acting Staff Judge Advocate (post-trial)

For Appellant: Lieutenant Colonel Kyle C. Sprague, JA; Major Beau 0. Watkins, JA (on brief); Lieutenant Colonel Kyle C. Sprague, JA; Major Nicole K. Ulrich, JA (on specified brief).

For Appellee: Pursuant to A.C.C.A. Rule 17.4, no response filed; Colonel Richard E. Gorini, JA; Lieutenant Colonel Kyle V. Burgamy, JA; Major Isaac J. Dickson, JA; Captain Clare M. Murphy, JA (on reply specified brief).

31 August 2026

SUMMARY DISPOSITION

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

COOPER, Senior Judge:

An appellant is entitled to have his request for clemency accompanied by legal advice from a qualified judge advocate. Consequently, it is error for a judge advocate who previously acted as counsel to subsequently advise the convening authority on the post-trial for the same case. However, to warrant relief, the appellant must demonstrate the error resulted in material prejudice to a substantial right.

A military judge, sitting as a general court-martial, convicted appellant, pursuant to his pleas, of one specification of failing to obey a written lawful order, one specification of assault consummated by battery, and one specification of aggravated assault, in violation Articles 92 and 128, Uniform Code of Military

Justice, 10 U.S.C. §§ 892, 928 [UCMJ]. The military judge sentenced appellant to a bad-conduct discharge and to be confined for eight months.

Our review of this case is conducted pursuant to Article 66, UCMJ (Sup. III 2021).*

BACKGROUND

Following acceptance of appellant's guilty plea and his sentencing, appellant requested the convening authority "exercise [his] authority under [R.C.M.] 1103(b) and 1103(h) and defer automatic forfeitures until entry of judgment and subsequently waive automatic forfeitures for six months." The convening authority denied appellant's requests.

The legal advisor who completed the Staff Judge Advocate (SJA) "Clemency Advice" in appellant's case had previously served as the senior defense counsel (SDC) for the region and had detailed appellant's defense counsel to the case.

Appellant submitted the case for our review on its merits. This court then specified whether appellant was entitled to relief under Article 6(c), UCMJ, when the post-trial legal advisor to the convening authority previously served as the SDC who supervised and detailed appellant's defense counsel.

LAW AND DISCUSSION

We review whether a staff judge advocate or legal advisor is disqualified from participating in post-trial review de novo. United States v. Stefan, 69 M.J. 256, 258 (C.A.A.F. 2010) (citation omitted).

In pertinent part, Article 6(c), UCMJ, states: "No person who, with respect to a case, serves as [counsel who have acted in the same case] may later serve as a staff judge advocate or legal officer to any reviewing or convening authority upon the

*Notwithstanding appellant's submission in his Rule for Courts-Martial [R.C.M.] 1106 matters that "the record contains no errors warranting appellate relief," and his request that "the convening authority affirm the findings and sentence to ensure the plea's integrity on appeal, avoiding unnecessary disruption to the judicial process," and "the Army Court of Criminal Appeals (ACCA) uphold the guilty plea and adjudged sentence as provident, voluntary, and fair," appellant still submitted his case to this court on its merits for review. Appellant's R.C.M. 1106 matters were not sufficient to waive or withdraw from appellate review, as they did not meet the criteria as laid out in Article 61, UCMJ, or R.C.M. 1115. Thus, pursuant to our Article 66 authority, we have carefully reviewed the providence of appellant's guilty plea and find it to be without error. We will therefore affirm the findings and sentence in our decretal paragraph.

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same case." The statute requires "only that the person act" as counsel to be disqualified. Stefan, 69 M.J. at 258.

Here, the legal advisor who advised the convening authority on appellant's post-trial matters was the SDC who had supervised and detailed appellant's trial defense counsel. Accordingly, the legal advisor had acted as counsel in the case. Therefore, we agree with appellant that the legal advisor was disqualified under Article 6(c), UCMJ, from advising the convening authority on appellant's clemency request because he had "acted in the same case."

Having found error, we now test for material prejudice to the substantial rights of the accused. Id. at 2.59. To warrant relief, an appellant bears the burden of demonstrating "some colorable showing of possible prejudice." Id. (citation omitted).

Appellant argues, because the legal advisor transitioned directly from SDC to a government advisory role, this "side-switching" creates a prima facie appearance of prejudice that inherently calls into question the integrity of the post-trial process. We find this argument unpersuasive. Although the legal advisor should have been more cognizant of his possible conflicts, the fact that he occupied roles as a defense counsel, then subsequently government counsel, does not automatically establish prejudice. As such, we must determine whether his doing so prejudiced a substantial right of appellant. See UCMJ art. 59(a).

To determine whether a disqualified advisor materially prejudiced an appellant, we must examine the nature and extent of the advisor's prior involvement and their subsequent post-trial conduct. As the Court of Appeals for the Armed Forces noted in Stefan, "[w]hile minimal conduct can contravene Article 6(c), it is obvious that when the conduct is relatively minimal, the likelihood of actual prejudice is substantially diminished." 69 M.J. at 259. Conversely, courts have found prejudice when the disqualified officer's actions demonstrated active hostility, the misuse of confidential information, or aggressive advocacy against the accused. See, e.g., United States v. Johnson-Saunders, 48 M.J. 74, 74-75 (C.A.A.F. 1998) (finding prejudice when the acting SJA had been detailed as the assistant trial counsel, had actively prosecuted the case, and had requested a harsher sentence than adjudged in post-trial recommendations); United States v. Coulter, 3 C.M.A. 657, 658-61, 14 C.M.R. 75, 76-79 (1954) (finding prejudice when the SJA had been previously detailed as trial counsel, actively prosecuted the case, and injected bias by calling the accused a "worthless individual" in a report to the convening authority).

Here, there is no evidence suggesting the legal advisor's actions prejudiced appellant. While his role as the supervisory and ·detailing attorney for appellant's defense counsel was sufficient to trigger a statutory disqualification under Article 6(c), UCMJ, there is only evidence that he detailed a counsel to appellant's case and generally supervised the counsel. Nothing in the record indicates the legal advisor

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directly supervised counsel on matters pertinent to appellant's court-martial. These actions have not been found to be prejudicial without more. Stefan, 69 M.J. at 259 (finding no prejudice where the SJA advice was from a former trial counsel who had signed the charge sheet but did not actively prosecute the case nor take a firm stance on sentencing).

Applying this framework to the record before us, appellant failed to demonstrate any prejudice. In his R.C.M. 1106 matters, appellant requested deferment of forfeitures until Entry of Judgment and waiver thereafter. However, as noted by the government, appellant neither identified a dependent nor submitted the paperwork to execute a pay transfer to a dependent. Accordingly, the convening authority had insufficient information to approve his waiver request. See UCMJ art. 58b(b) (authorizing waiver of adjudged forfeitures for "an accused who has dependents"). Further, because he did not identify a dependent, appellant would directly be enriched by an approved deferment. As such, it is doubtful any similarly situated appellant would have received clemency.

Like our higher court's finding in Stefan, under these circumstances, considering appellant's offenses, we find no basis to believe that a different legal advisor's advice would have resulted in a different action by the convening authority. 69 M.J. at 259 (finding no prejudice where "there [wa]s nothing that would suggest that another SJA would have made a different recommendation on Appellant's clemency request" to the convening authority). Accordingly, we find no material prejudice to a substantial right of the appellant.

CONCLUSION

The findings of guilty and the sentence are AFFIRMED.

Judge WILLIAMS and Judge SCHLACK concur.

FOR THE COURT:

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l:.�M,ES�W. HERkING: JR.o � • Clerk of Court