CAAF will hear oral arguments in United States v. Chandler, a case, whose issue was certified by The Judge Advocate General of the Air Force. TJAG puts forth this assignment of error to CAAF:
THE STAFF JUDGE ADVOCATE NEGOTIATED THE INCLUSION OF AGGRAVATING EVIDENCE IN A STIPULATION OF FACT. OVER DEFENSE’S 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 Briefs here.
On June 8, 2018, Lt Col Mahmud signed the SJAR. Lt Col Mahmud said on a phone call to the convening authority that he could be lenient in the form of disapproving, commuting or suspending, in whole or in part, the adjudged forfeitures and the confinement. Lt Col Mahmud said that the sentence was appropriate for the offenses for which Appellant was convicted, and that the convening authority should approve the adjudged sentence.
Captain Cox was still representing the Appellant during his clemency. In Appellant’s request for clemency, in the form of early release, Captain Cox raised the issue of Lt Col Mahmud’s participation in the phone call, as well as other alleged legal errors. Captain Cox reiterated that Appellant “admitted to offenses that could not have been proven otherwise.”
Kevin Chandler, an Airman Basic, was tried by a military judge alone at a special court-martial convened at Tinker Air Force Base, Oklahoma, on March 22, 2018. In accordance with his pleas, he was found guilty of one charge and four specifications involving the use and distribution of marijuana and cocaine, all on divers occasions, and an additional charge and two specifications involving the use of marijuana and cocaine, each on a single occasion. The military judge sentenced Chandler to a bad conduct discharge, five months confinement, and forfeitures of $1,000 pay per month for five months.
In exchange for Appellant’s performance of the following terms, the convening authority agreed to limit Appellant’s confinement as adjudged, to a maximum of six months. The terms of Appellant’s pre-trial agreement were: (1) to plead guilty to all charges and specifications; (2) to enter into a reasonable stipulation of fact with the government; (3) to not request witness employment or travel at the government expense; (4) to waive the right to trial by members and to elect trial by military judge alone; (5) to waive all waivable motions; and (6) to waive all expert consultations.
TRIAL JUDGE'S RULING
The trial judge at AB Chandler confirmed the stipulation of fact’s citation to the 150 uses of cocaine and the 40 uses of marijuana.Assistant trial counsel later referenced the number of uses on various occasions during her sentencing argument, to include her summation of the case that “the appropriate sentence for Airman Chandler after distributing cocaine to another Airman, distributing marijuana to three civilians and using cocaine and marijuana about 190 times is eight months confinement, maximum forfeitures, and a bad conduct discharge.”
In contrast, Captain Cox argued that the government’s recommendation was disproportionate to AB Chandler’s crimes and would not serve any rehabilitative purpose. Captain Cox further highlighted AB Chandler’s troubled upbringing, admissions of guilt, and willingness to expose himself to danger as a CI. The military judge ultimately sentenced AB Chandler to a bad conduct discharge, $1,000 forfeitures of pay per month for five months, and confinement for five months.
In a split decision, the Air Force Court determined that AB Chandler had failed to meet his burden to show Lt Col Mahmud was disqualified from providing post-trial advice. The court based its decision on four conclusions. First, that there was a “narrow factual basis” for Lt Col Mahmud’s disqualification: a single point of contention during one phone call to which it was alleged that Lt Col Mahmud acted as trial counsel. Second, “there was no material factual controversy in dispute,” since Lt Col Mahmud admitted discussing what information would be included in the stipulation because SJAs are required to advise convening authorities on allegations of legal error. Third, that Lt Col Mahmud did not have “anything other than an official interest in the case,” and that the stipulation of fact discussion was closely related to the negotiation of the PTA. Last, that even if Lt Col Mahmud were disqualified, there was no tangible showing of prejudice.
Appellant argues that the SJA negotiated the inclusion of aggravating evidence in a stipulation of fact. Over the defense’s objection, and after disputing the defense’s version of events, the SJA provided post-trial advice to the convening authority. Appellant alleges that Lt Col Mahmud performed the duties of trial counsel in this case and that his actions reflect a personal interest in the case. To show this, Appellant points to the legitimate factual controversy between Lt Col Mahmud and Captain Cox over Lt Col Mahmud’s pretrial conduct. Alleging that Lt Col Mahmud’s conduct created the appearance of unfairness and that AB Chandler was prejudiced by Lt Col Mahmud’s post-trial involvement. Given these facts, Appellant argues that the SJA’s pretrial conduct should have been disqualifying
Conversely, the government contends that the Air Force Court did not err in affirming Appellant’s convictions and sentence since the SJA acted within the scope of his express authority. This is because the SJA did not perform a prosecutorial function; the Appellant failed to show how Lt Col Mahmud’s actions reflected a personal interest in the case and that his participation raised a material factual controversy; and that there was nothing inherently unfair about Appellant’s trial. Alternatively, the government argues that even if the SJA erred, the Appellant was not prejudiced.
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