United States v. Frederickson , 63 M.J. 55 ( 2006 )

UNITED STATES, Appellee
v.
Donavon F. FREDERICKSON, Airman Basic
U.S. Air Force, Appellant
No. 04-0720
Crim. App. No. 35442
United States Court of Appeals for the Armed Forces
Argued March 1, 2006
Decided April 7, 2006
EFFRON, J., delivered the opinion of the Court, in which GIERKE,
C.J., and CRAWFORD, BAKER, and ERDMANN, JJ., joined.
Counsel
For Appellant: Major Sandra K. Whittington (argued); Lieutenant
Colonel Mark R. Strickland, Lieutenant Colonel Carlos L. McDade,
and Major Terry L. McElyea (on brief).
For Appellee: Major Steven R. Kaufman (argued); Lieutenant
Colonel Robert V. Combs, Lieutenant Colonel Gary F. Spencer, and
Major Heather L. Mazzeno (on brief); Major Michelle M. Lindo
McCluer.
Military Judge: Dawn R. Eflein
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Frederickson, No. 04-0720/AF
Judge EFFRON delivered the opinion of the Court.
At a general court-martial composed of a military judge
sitting alone, Appellant was convicted, pursuant to his pleas,
of conspiracy to open and steal mail matter, unlawful entry with
intent to steal mail matter, unlawful opening of mail matter,
and unlawful opening and stealing mail matter (four
specifications), in violation of Articles 81, 130, and 134,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 881, 930,
934 (2000). The adjudged and approved sentence included a
dishonorable discharge, confinement for twenty-two months,
forfeiture of all pay and allowances, and a $15,000 fine. The
United States Air Force Court of Criminal Appeals affirmed in an
unpublished opinion. United States v. Frederickson, No. ACM
35442, 2004 CCA LEXIS 181, 2004 WL 1539555 (A.F. Ct. Crim. App.
June 30, 2004).1
On Appellant’s petition, we granted review of the following
issue:
1
The unpublished opinion of the Court of Criminal Appeals contains the
following footnote concerning Appellant’s name:
The [A]ppellant’s name is spelled in various ways throughout
the record of trial: Donovan K. Frederickson, Donavon F.
Frederickson, Donovan F. Frederickson, and Donavon K.
Frederickson. On the record, the [A]ppellant told the
military judge his legal name is Donavon K. Fredrickson, but
acknowledged that his military records all reflect Donavon F.
Frederickson.
To be consistent with the captioning of this case by the court below, we
shall use the name “Donovan F. Frederickson.
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WHETHER THE AIR FORCE COURT OF CRIMINAL
APPEALS ERRED IN FINDING THAT NONE OF THE
STAFF JUDGE ADVOCATE’S COMMENTS IN HIS
ADDENDUM TO THE STAFF JUDGE ADVOCATE’S
REVIEW CONSTITUTED NEW MATTER.2
For the reasons set forth below, we affirm.
I. BACKGROUND
A. POST-TRIAL RECOMMENDATIONS
AND THE OPPORTUNITY TO RESPOND
The findings and sentence of a court-martial are subject to
review by the convening authority. Article 60, UCMJ, 10 U.S.C.
§ 860 (2000). If the case was tried before a general court-
martial or before a special court-martial in which a bad-conduct
discharge could be adjudged, the convening authority must obtain
the recommendation of his or her staff judge advocate (SJA)
before taking action on the results of the trial. Rule for
Courts-Martial (R.C.M.) 1106(a); see Article 60(d), UCMJ. Prior
to submitting the recommendation to the convening authority, the
SJA must serve it on the accused and defense counsel for the
opportunity to comment. R.C.M. 1106(f)(1); R.C.M. 1106(f)(4);
see Article 60(d), UCMJ; see also Article 60(b), UCMJ; R.C.M.
2
United States v. Frederickson, 62 M.J. 367 (C.A.A.F. 2005). In an earlier
order, we granted review of an issue concerning the propriety of the adjudged
fine. United States v. Frederickson, 61 M.J. 10 (C.A.A.F. 2005). Under our
subsequent decision in United States v. Stebbins, 61 M.J. 366, 370-75
(C.A.A.F. 2005), the fine was not improper.
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1105 (allowing the accused the opportunity to submit matters to
the convening authority).
After the defense has had an opportunity to comment, the
SJA may supplement the recommendation in an addendum. R.C.M.
1106(f)(7). If the addendum contains “new matter,” the addendum
must be served on the accused and defense counsel, who then have
an opportunity to comment on the addendum. Id.; R.C.M.
1105(c)(1). See United States v. Catalani, 46 M.J. 325, 326
(C.A.A.F. 1997).
As we noted in Catalani, our Court has not attempted to
develop a comprehensive definition of “new matter.” Id. at 326.
The nonbinding Discussion accompanying R.C.M. 1106(f)(7)
provides a number of examples:
“New matter” includes discussion of the
effect of new decisions on issues in the
case, matter from outside the record of
trial, and issues not previously discussed.
“New matter” does not ordinarily include any
discussion by the staff judge advocate . . .
of the correctness of the initial defense
comments on the recommendation.
The failure to serve new matter on the defense is not
prejudicial if the new matter is “neutral, neither derogatory
nor adverse to appellant, or if it is so trivial as to be
nonprejudicial.” Catalani, 46 M.J. at 326 (citing United States
v. Jones, 44 M.J. 242, 244 (C.A.A.F. 1996)) (quotation marks
omitted). “[I]f an appellant makes some colorable showing of
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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 327 (quoting Jones, 44 M.J. at
244) (quotation marks omitted). The burden is on an appellant
to “demonstrate prejudice by stating what, if anything, would
have been submitted to deny, counter, or explain the new
matter.” United States v. Chatman, 46 M.J. 321, 323 (C.A.A.F.
1997) (quotation marks omitted). Although the threshold is
“low,” Catalani, 46 M.J. at 327, an appellant must demonstrate
that the proffered response to the unserved addendum “could have
produced a different result.” United States v. Brown, 54 M.J.
289, 293 (C.A.A.F. 2000).
B. POST-TRIAL PROCEEDINGS IN APPELLANT’S CASE
Following trial, the deputy SJA prepared a post-trial
recommendation to the convening authority under R.C.M. 1106,
which he served on defense counsel. The recommendation noted
that Appellant pleaded guilty pursuant to a pretrial agreement.
In summarizing the offenses, the deputy SJA noted that Appellant
committed the offenses with a coworker at a military mail
facility. Appellant and his coworker entered a secured building
without authority on several occasions at night, opened sealed
mail, removed over $15,000 worth of electronic equipment and
jewelry, and kept most of the items in the coworker’s dorm room.
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United States v. Frederickson, No. 04-0720/AF
The deputy SJA noted that Appellant admitted to stealing the
property in order to pawn it.
Following receipt of the deputy SJA’s recommendation,
defense counsel submitted a request for clemency to the
convening authority, which included a memorandum from Appellant
requesting clemency. The defense asked the convening authority
to reduce the adjudged dishonorable discharge to a bad-conduct
discharge and to disapprove the $15,000 fine. Defense counsel
noted that a dishonorable discharge is the “worst type” of
discharge that an airman could receive. The defense counsel
asked the convening authority to view Appellant’s misconduct as
the mistake of a person who simply took “advantage of an
opportunity in his workplace,” which defense counsel suggested
was not as serious as the “depravity” of a person who “knowingly
inflicts harm on others or puts lives and safety in danger.”
Appellant also asked the convening authority to disapprove the
dishonorable discharge so that he would not be placed “in the
same category with murderers, rapists, armed robbers, and
individuals like that.” Defense counsel noted that a bad-
conduct discharge would have serious consequences for Appellant
but argued that it would be “more proportionate [to] his
actions.”
With respect to the fine, defense counsel noted that the
stolen items were recovered from the dorm rooms, that there was
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no evidence that Appellant profited from the thefts, and that
the fine was out of proportion to the amount that could have
been obtained from a pawn shop had they actually pawned the
stolen items. Defense counsel also stated that Appellant came
from a family of limited means, so that the family would be
faced with the difficult choice of either suffering financial
hardship in order to pay the fine or standing by while Appellant
endured an additional eight months of contingent confinement for
not paying the fine.
The deputy SJA then prepared an Addendum, which was
endorsed by the SJA. The Addendum specifically directed the
convening authority’s attention to the submissions by Appellant
and defense counsel, and then provided a detailed summary of the
defense request for clemency. The Addendum set forth the
defense position that there was no evidence that Appellant and
his coworker profited from the thefts, that the property was
recovered from the dorm rooms, and that the $15,000 fine was out
of proportion to whatever profits might have been realized if
the stolen items had been pawned. The Addendum also stated that
Appellant’s family would suffer from either having to pay the
fine or watching him spend additional time in jail under the
contingent confinement clause.
After describing the defense submission, the deputy SJA
offered a number of observations: (1) Appellant would not be
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United States v. Frederickson, No. 04-0720/AF
asking for a change in discharge if he had thought of the
consequences before he committed the offenses; (2) issuance of a
dishonorable discharge is not limited to cases of violence, but
instead is determined under the circumstances of each case; and
(3) the fine was appropriate in view of the value of the
property. The deputy SJA added:
In arguing the accused didn’t profit from
his crimes because he didn’t turn the items
he stole into cash before he was caught (the
accused told the judge he saw the thefts as
a way to repay a large sum of money he owed
his grandmother), defense counsel ignores
the fact the accused had the benefit of
valuable property he didn’t pay for;
property that had a value of approximately
$15,000. Therefore, there is a clear nexus
between the fine the accused received and
the crimes he committed. While it appears
the accused’s family may lend him their
financial support to once again bail him out
of a situation of his own making, that
shouldn’t dissuade you from approving what
is an otherwise appropriate consequence of
the accused’s misconduct. Not approving the
adjudged fine would give the accused a
windfall he doesn’t deserve.
The SJA did not serve the Addendum on the defense. As a
result, the defense did not have an opportunity to comment on
the Addendum before the convening authority approved the
sentence, including the dishonorable discharge, the fine, and
the contingent confinement.
On appeal, the defense has submitted affidavits from trial
defense counsel and Appellant describing what they would have
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said if they had been given the opportunity to comment on the
Addendum. According to defense counsel and Appellant, the
defense would have responded by: (1) emphasizing that a bad-
conduct discharge was more appropriate than a dishonorable
discharge in view of the “significant difference between a young
airman who succumbs to the temptation offered by inadequate
security at his workplace and an Air Force member who
intentionally causes physical harm to another or who directly
threatens the security of individuals by entering and stealing
from their homes”; (2) Appellant regretted his misconduct,
confessed, accepted responsibility, and learned how to avoid
getting into trouble; (3) Appellant did not “benefit” from the
stolen property because there was no evidence that any of the
property was used, damaged, degraded, or sold; (4) the property
was recovered in good condition; (5) the $15,000 retail price
was “greatly disproportionate to whatever benefit AB [Airman
Basic] Frederickson might have derived”; (6) the $15,000 fine
would impose significant loss and anguish on the innocent
members of Appellant’s family; and (7) there was no “windfall”
for Appellant because he did not profit and a bad-conduct
discharge would still impose a significant punishment on him.
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II. DISCUSSION
In the present appeal, Appellant contends that the Addendum
contained new matter because it implied incorrectly that
Appellant was unrepentant, that he profited financially from the
thefts, and that he personally used the stolen items. In
addition, Appellant contends that the tone of the Addendum
constituted new matter because it characterized Appellant’s
conduct in a derogatory and condescending manner.
For purposes of this appeal, we shall assume, without
deciding, that the implications and tone of the Addendum
constituted “new matter” that should have been served on the
defense. To determine whether Appellant has made a colorable
showing of possible prejudice, we must consider whether the
proffered defense responses to the unserved Addendum could have
produced a different result by the convening authority. See
supra Section I.A.
The proffered defense responses reiterate what the defense
previously submitted to the convening authority during the post-
trial proceedings. While there may be cases in which loss of
the opportunity for such repetition is sufficient to demonstrate
prejudice, this is not such a case. Here, the Addendum prepared
by the deputy SJA provided a detailed summary of the defense
submission. In that context, the likelihood that the convening
authority would have misinterpreted the deputy SJA’s comments in
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the manner suggested by the defense was marginal, at best.
Under these circumstances, the proffered responses, which relied
on previously submitted material, were insufficient to meet the
defense burden of demonstrating that service of the Addendum on
the defense could have produced a different result from the
convening authority. See supra Section I.A.
Although we conclude that Appellant has not established the
requisite showing of prejudice in this case, we emphasize that
SJAs can preclude unnecessary appellate litigation by providing
convening authorities with addenda only when necessary and by
broadly construing the term “new matter” for purposes of
providing servicemembers with an opportunity to respond to
addenda. See United States v. Leal, 44 M.J. 235, 237 (C.A.A.F.
1996).
III. CONCLUSION
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
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