United States v. Zaptin

41 M.J. 877, 1995 CCA LEXIS 71, 1995 WL 68602
CourtNavy-Marine Corps Court of Criminal Appeals
DecidedFebruary 17, 1995
DocketNMCM 93 01596
StatusPublished
Cited by6 cases

This text of 41 M.J. 877 (United States v. Zaptin) is published on Counsel Stack Legal Research, covering Navy-Marine Corps Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Zaptin, 41 M.J. 877, 1995 CCA LEXIS 71, 1995 WL 68602 (N.M. 1995).

Opinion

REED, Senior Judge:

In accordance with his pleas, the appellant was convicted by a military judge, sitting alone, of conspiracy to distribute lysergic acid diethylamide [LSD], wrongfully using LSD, and two specifications of larceny in violation, respectively, of Articles 81, 112a, and 121, Uniform Code of Military Justice [hereinafter UCMJ or “the Code”], 10 U.S.C. §§ 881, 912a, 921 (1988). He was sentenced to confinement for 160 days, forfeiture of $542.00 pay per month for 5 months, reduction to pay grade E-l, and a bad-conduct discharge. The convening authority [CA] approved the sentence as adjudged but suspended all confinement in excess of 86 days. This suspension was, in large part, an act of [879]*879clemency since a pretrial agreement required that the CA only suspend confinement in excess of 150 days.

On review, the appellant alleges six assignments of error,1 the majority of which assert error in the post-trial review of his case.

In his first assignment of error the appellant argues that the convening authority’s action must be set aside and a new staff judge advocate’s [SJA] recommendation and a new CA’s action ordered because the legal officer who authored the recommendation also preferred the charges against the appellant. Preferring the charges against the appellant made the legal officer an accuser.2 See UCMJ art. 1(9), 10 U.S.C. § 801 (1988). The question then becomes: Does the fact that the SJA or the legal officer is an accuser automatically mandate that the CA’s action be set aside and a new SJA recommendation and CA’s action ordered? We hold that it does not if the SJA or the legal officer is only a “nominal” accuser. We do so on the basis of waiver, but we also conclude that, in any event, there was no prejudice.

We start our analysis by noting that a person who prefers charges against an accused must “[s]ign the charges and specifications under oath ...” and “[s]tate that ... [he] has personal knowledge of or has investigated the matters set forth ... [therein] and that they are true in fact to the best of ... [his] knowledge and belief.” Rule for Courts-Martial [R.C.M.] 307(b)(1), (2). Our experience is that the accuser listed on the charge sheet is usually a member of the legal office who merely reads the investigative reports accompanying the request from a command for legal services. From the information he derives therefrom, that individual usually prefers charges against the accused. Such an accuser is normally termed a “nominal” or “statutory” accuser and not an “actual” accuser since he neither has “ ‘been injured by [the] accused’s misconduct,’ ” United States v. McGee, 13 M.J. 699, 701 (N.M.C.M.R.1982) (quoting United States v. Moeller, 8 C.M.A. 275, 276, 24 C.M.R. 85, 86, 1957 WL 4708 (1957)), nor had any personal involvement in the case other than an official interest, cf. United States v. Conn, 6 M.J. 351, 354 (C.M.A.1979). This seems to be the situation in the present case, because the record is void of any indication that the legal officer had any prior involvement with either these offenses or this appellant and none is alleged by the appellant.

Article 6(c) of the Code and R.C.M. 1106 both provide that no person who “has acted as member, military judge, trial counsel, assistant trial counsel, defense counsel, associate or assistant defense counsel, or investigating officer in any case may later act as a staff judge advocate or legal officer to any [880]*880reviewing authority in the same case.” 10 U.S.C. § 806(c) (1988); R.C.M. 1106(b). Neither mentions an accuser. Thus an accuser is not expressly prohibited under the Code or the Rules for Courts-Martial from preparing the legal officer’s recommendation.

It has long been established under military case law, however, that an accused has the right to an impartial review of his case. United States v. Gordon, 1 C.M.A. 255, 2 C.M.R. 161, 1952 WL 1711 (1952). This includes the right “to a fair and impartial post-trial recommendation by one free from any connection with the controversy.” (United States v. Bygrave, 40 M.J. 889, 845 (N.M.C.M.R.1994) (citing United States v. Crossley, 10 M.J. 376 (C.M.A.1981)); United States v. Crunk, 4 C.M.A. 290, 15 C.M.R. 290, 1954 WL 2289 (1954); United States v. McCormick, 34 M.J. 752 (N.M.C.M.R.1992)). An SJA who has acted as the accuser for any of the charges or specifications where he or she is more than a “nominal” or “statutory” accuser is disqualified from preparing the post-trial recommendation. United States v. Hill, 32 M.J. 940 (N.M.C.M.R.1991); United States v. Schaffer, 40 C.M.R. 794, 796, 1969 WL 6199 (A.B.R.1969) (citing United States v. Ross, 16 C.M.R. 579 (A.F.B.R., 1954 WL 2525 (1954)). However, a different situation arises in the ease of a “nominal” accuser who subsequently serves as the SJA; here waiver applies, absent “plain error.” See United States v. Hamilton, 41 M.J. 32 (C.M.A.1994).

Neither the appellant nor his trial defense counsel lodged any objection to the accuser acting as the SJA. The trial defense counsel was aware from the charge sheet that the SJA swore to the charges as an accuser. The defense counsel also was aware from the recommendation that was served upon him that the same person was also acting as the SJA, yet he offered no objection. If he fails to raise an objection then we hold waiver applies, absent any plain error.

“[T]he plain-error doctrine is reserved for ‘those circumstances in which a miscarriage of justice would otherwise result.’ ” United States v. Jackson, 38 M.J. 106, 111 (C.M.A. 1993), cert. denied, — U.S.-, 114 S.Ct. 1056, 127 L.Ed.2d 377 (1994) (quoting United States v. Fisher, 21 M.J. 327, 328 (C.M.A. 1986)). Military courts have generally found plain error when the officer preparing the recommendation had “an other than official interest in the case” or the circumstances equated to no recommendation at all. See United States v. Rice, 33 M.J. 451 (C.M.A. 1991) (finding plain error when legal officer who prepared the recommendation also testified as a government witness at the presentencing hearing); United States v. Smith, 34 M.J. 894 (N.M.C.M.R.1992) (holding that preparation of recommendation by enlisted servicemember, not qualified to act as a legal officer, constitutes plain error); Hill (finding plain error when the appellant was convicted of disobedience of the lawful command of a superior commissioned officer and the recommendation was prepared by the same officer).

In this case, the legal officer was merely a nominal accuser and did not have an “other than official interest.” The legal officer preferred the charges on 6 May 1993, one day after the appellant had already negotiated a pretrial agreement and a month after the appellant had confessed to the crimes. Any possible prejudice that may have resulted from the legal officer’s belief prior to trial that the matters set forth in the charges were true was mooted by the appellant’s pleas of guilty. Under such circumstances, the appellant’s failure to challenge the legal officer’s recommendation waived the error. Hamilton.

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Cite This Page — Counsel Stack

Bluebook (online)
41 M.J. 877, 1995 CCA LEXIS 71, 1995 WL 68602, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-zaptin-nmcca-1995.