CAAF Opinion: United States v. Chandler

CAAF released its unanimous opinion in United States v. Chandler, siding with the government and affirming the sentence in its entirety. 
Chandler opinion here.
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  Airman Basic (E-1) Kevin S. Chandler was convicted, pursuant to a guilty plea, of six specifications for consuming and distributing drugs, in violation of Article 112a. Pursuant to a pretrial agreement (PTA), the convening authority imposed a sentence of five months’ confinement, forfeiture of $5,000 pay over five months, and a bad-conduct discharge. AFCCA affirmed the findings and sentence.

   CAAF granted review on the following issue: The staff judge advocate negotiated the inclusion of aggravating evidence in a stipulation of fact, over defense objection, and after disputing the defense’s version of events, the staff judge advocate provided post-trial advice to the convening authority. Did the staff judge advocate’s pretrial conduct warrant disqualification? CAAF answered in the negative and unanimously affirmed AFCCA’s decision.

 I. Factual and Background
       Chandler confessed to AFOSI agents at Tinker AFB to using and distributing cocaine and marijuana on several occasions over the course of 11 months. Following this confession, Chandler agreed to serve as a confidential informant and attend counseling, but continued to use cocaine and marijuana. 
     A phone call lies at the heart of Chandler’s arguments at CAAF. Before trial, the SJA called Chandler’s defense counsel to negotiate the stipulations of fact for a proposed PTA. The SJA either insisted upon or requested (the tone of the call was disputed) a stipulation to 40 and 150 uses of marijuana and cocaine, respectively—the same number of uses to which Chandler had previously confessed. While the defense counsel was reluctant to agree to this stipulation because the defense counsel believed that the government would be unable to corroborate each use, the defense counsel nevertheless signed the PTA and Chandler agreed to the SJA’s proposed stipulation. The final stipulation, which was accepted during guilty plea proceedings, acknowledged that while the government “may not have [had] evidence to corroborate all” specific uses, Chandler had admitted to them. The court sentenced Chandler to five months’ confinement, forfeiture of $5,000 pay over his period of confinement, and a bad-conduct discharge.
     Before and after clemency proceedings, the defense counsel objected to the SJA’s post-trial involvement in the case, citing the phone call. Defense counsel unsuccessfully requested that the legal office assign a different SJA to the case for clemency proceedings, and the original SJA submitted an SJA recommendation (SJAR) in clemency proceedings. The SJAR stated the SJA’s opinion that the sentence was appropriate and should be upheld. The defense counsel submitted that SJA, haven taken on the role of prosecutor during the call, should have been disqualified from under Article 6(c) from participating in post-trial review. Notwithstanding this objection, the convening authority approved the adjudged sentence.
II. AFCCA’s Decision
     At the AFCCA, Chandler, the appellant, raised four issues: (1) whether the SJA’s personal involvement in negotiating the content of the stipulation of fact disqualified him from providing post-trial advice to the convening authority; (2) whether the military judge abused his discretion by admitting a deferred plea agreement as evidence of a prior conviction; (3) whether the Government impermissibly failed to disclose information favorable to the Defense; and (4) whether trial counsel abused her discretion by failing to recognize Appellant's substantial assistance to law enforcement. Dismissing (3) and (4) without discussion, AFCCA held that the defendant had not shown prejudicial error resulting from either (1) or (2), and affirmed. CAAF granted review on issue (1). 
III. CAAF Analysis
       Appellant put forward four arguments for why the SJA was disqualified under Article 6(c): (a) the SJA acted as trial counsel by shaping the stipulation of facts, which later became a prosecution exhibit, (b) there was a legitimate factual controversy regarding the SJA’s pretrial conduct, (c) that the SJA’s actions reflected a personal interest in the case, and (d) the SJA’s conduct created the appearance of unfairness. Reviewing this issue of law de novo, CAAF unanimously denied each of appellant’s arguments.

A. The SJA did not act as trial counsel.
     Noting neither text or caselaw directly addressed whether the SJA may notify the parties that a specific term or condition needs to be included in a PTA before the PTA is offered to the convening authority, it concluded that, in doing so, the SJA did not exceed his authority under Article 6(c). CAAF observed that the defense counsel had ample opportunity to decide how to handle the stipulation at trial and presentencing, and that it was therefore appropriate for the SJA to directly inform defense counsel that he would advise the convening authority not to accept the PTA unless Chandler agreed to stipulate to the same number of uses to which he admitted in his original confession.
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B. The SJA and Defense Counsels’ accounts did not factually conflict.
    To support his second contention, appellant Chandler asserted that a legitimate factual controversy existed between the SJA and the defense counsel as to whether the SJA insisted upon the stipulation, or merely presented it as a possible option. CAAF determined that this issue pertained only to the “tone” of the phone call, and thus did not rise to the level of a “legitimate factual controversy” necessary for require the SJA’s disqualification under Article 6(c).

C. The SJA’s actions did not reflect a personal interest in the case.
     Appellant Chandler asserted that three of the SJA’s actions reflected a personal interest in the case: (1) the SJA’s efforts to include sentence-enhancing information in the stipulation, (2) the SJA’s failure to respond to defense counsel’s objection to his post-trial conduct, and (3) the SJA’s failure to reference mitigating factors. Examining each of these assertions, CAAF found “no indication in the record” that these demonstrated anything other than an official interest in the case. 

D. The SJA’s actions did not create unfairness on an appearance thereof.
    CAAF held that there was no basis for the claim that the SJA’s failure to recuse was unfair or appeared unfair. Four factors informed this holding: (1) Chandler did not claim that the SJA’s actions precluded him from including mitigating evidence in the PTA, (2) Chandler had not asserted that the SJA’s actions impacted the voluntariness of his decision to enter the PTA, (3) Chandler did not credibly claim that the SJA’s legal advice was wrong or improper, and (4) Chandler received a term of confinement below the PTA’s six-month cap. 
     Having rejected each of Chandler’s arguments, CAAF held that the SJA was not required to recuse himself from the clemency proceedings under Article 6(c), and affirmed the sentence as originally adjudged. 

Max Goldberg

Intern