Petition for Writ of Certiorari — Cochran v. United States

\\) vee wie Wet, U.S.

y} FILED

961162 JAN 23 1997,

QPce oF THE CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

SERGEANT DAVID R. COCHRAN,

PETITIONER

Vz

UNITED STATES OF AMERICA, RESPONDENT

Petition For a Writ of Certiorari to the

United States Court of Appeals for the Armed Forces

PETITION FOR WRIT OF CERTIORARI

Ormond R. Fodrea

Major, United States Air Force

Appellate Defense Division

Counsel of Record

Harold M. Vaught

Captain, United States Air Force

Appellate Defense Counsel

Counsel for the Petitioner

Air Force Legal Services Agency

Appellate Defense Division

172 Luke Avenue, Suite 343

Bolling AFB, DC 20332-8000

202-767-1562

January 1997

Sate aCe acne ae

ox Tt

QUESTION PRESENTED

Whether the United States Court of Appeals for the

Armed Forces erred when it affirmed the lower appellate

court’s determination of no plain error where (1) at trial, the

prosecution inappropriately argued for a sentence of life in

confinement based on the independent maximum

punishments for each of the offenses of which petitioner was

convicted, when generally only an appropriate unitary

sentence may be considered and adjudged in a military court,

and (2) the staff judge advocate to the convening authority,

after participating in the trial as a witness for the

prosecution and injecting himself into the proceedings to

oppose a defense request for continuance, nevertheless

prepared the statutorily required “impartial” recommendation

to the convening authority, opposing the petitioner’s request

for clemency.

ili

TABLE OF CONTENTS

Page

Se IRE ey CV he sl a0 ben ee ees ce wens 1

RNIN al a Vi arcuige vhs a bus aw ites 44g exe 80 ]

PE PeT PRET GPE FORE PRE 6 kee ce ccc ect ee ene 1

REASON FOR GRANTING THE WRIT .............-. 7

THE COURT OF APPEALS FOR THE ARMED

FORCES ERRED BY AFFIRMING THE LOWER

APPELLATE COURT’S DETERMINATION

THAT THERE WAS NO PLAIN ERROR

DESPITE THE PRESENCE OF ERRORS WHICH

SERIOUSLY AFFECT THE FAIRNESS,

INTEGRITY OR PUBLIC REPUTATION OF THE

MILITARY JUSTICE SYSTEM OCCURRING

BOTH DURING THE SENTENCING PHASE OF

TRIAL AND THE POST-TRIAL CLEMENCY

PROCESS.

SEITE oe eek be es MOU ak Ce eae eis s 10

APPENDIX A (Opinion of the United States

Court of Appeals for the Armed Forces)................ la

APPENDIX B (Opinion of the United States

Air Force Court of Criminal Appeals) ...............-. 2a

iv

TABLE OF AUTHORITIES

Page

Military Cases:

United States v. Gutierrez, 11 M.J. 122

(COGA FUGED ix sa 0060S NR I 4

United States v. Andade, 32 M.J. 520

fe Bs | Pa eR a wba: i eaty Br arg 4

United States v. Lyneh, 39 M.J. 223

COTE BE a i ak IN a a Bi ea WS 6

United States v. Crunk, 4 USCMA 290,

15 CMR PO UISID) oii ee 2 RULE Si eo SA 6

United States v. Fisher, 21 M.J. 327

CR ROUEE $5 bid ak LAS ay RE eR 7

United States v. Suzuki, 20 M.J. 305

(CORA TOO 566 6 cc eRe wes MEW ee rabies 9

United States v. Sales, 22 M.J. 305

RIE TD 5 a oho oo 4 a ews wale does Lane )

United States v. Gordon, 1 USCMA 255,

SAR ROLASIOED: ch cabo 6 Ceri eadeet aon eaae 10

United States v. Coulter, 3 USCMA 657,

TA CORR To Geer ed kN ep cA Vee Sea eee eae 10

Supreme Court of the United States

United States v. Olano, 507 U.S. 725

(AOA a 5 sd oa ceed sak Cid ee 7,8,10,11

United States v. Atkinson, 297 U.S. 157

SEOOR 5 ic ks cen ORR Rae ad wee AES 11

Federal Statutes:

28 U.S.C.A. § 1259(3) (West Supp. 1996) ........

10 U.S.C.A. § 867 (West Supp. 1996) ...........

Articles 120, 125, 134, 85 UCMJ

(10 U.S.C. §§ 920, 925, 934, and 885) ...........

Article 66(c), UCMJ (10 U.S.C. § 866(c).........

Article 60(d), UCMJ (10 U.S.C. § 860(d)) ........

Article 6(c), UCMJ (10 U.S.C. § 806(c)) ........-

Articles 51, 52 UCMJ (10 U.S.C. §§ 851, 852) ....

The petitioner, Sergeant David R. Cochran, respectfully

prays that a writ of certiorari issue to review the order and

judgment of the United States Court of Appeals for the Armed

Forces entered in his case, issued on 28 October 1996.

OPINIONS BELOW

The order and summary judgment of the United States

Court of Appeals for the Armed Forces, reported at No. 96-

1015, -MJ_ (28 October 1996), is located at Appendix A. The

unpublished opinion of the United States Air Force Court of

Criminal Appeals, United States v. Cochran, ACM 30714

(AFCCA 29 April 1996), is located at Appendix B.

JURISDICTION

The judgment of the United States Court of Appeals for

the Armed Forces was entered on 28 October 1996. The |

jurisdiction of this Court is invoked under 28 U.S.C.A. § 1259

(3) (West Supp. 1996) and 10 U.S.C.A. § 867(a) (West Supp.

1996).

STATEMENT OF THE CASE

On 6 through 9 January 1993, the appellant was tried by a

general court-martial consisting of officer members. Contrary

to his pleas, he was convicted of rape, sodomy and indecent

acts with a child under the age of sixteen, all on divers

occasions, pursuant to Articles 120, 125, and 134, Uniform

Code of Military Justice (10 U.S.C. §§ 920, 925, 934) as well

as desertion, pursuant to Article 85, Uniform Code of Military

Justice (10 U.S.C. § 885). He was sentenced to a dishonorable

discharge, total forfeiture of pay and allowances, reduction to

the lowest enlisted rank, and confinement for life.

At trial, after the court-martial returned its findings of

guilty, the presentencing phase of the bifurcated proceedings

commenced. During this stage of the proceedings, the

prosecution argued for a sentence which includes confinement

for life. The content of this argument gave rise to an issue

raised before the military appellate courts and now, in part,

forms the basis for this petition.

The prosecution’s argument included the following:

Now what is this worth? What is an appropriate

sentence for these crimes? Well for rape, the

maximum possible punishment for one allegation of

rape, one commission of one act of rape is life in

prison, one. Is it appropriate? You betcha.

Somebody raped an eleven year old baby, you

betcha life is appropriate, just for that one act

. . .What is the least amount that we can give him to

punish him for that one crime of rape? Twenty

years. Surely, members of the court, you aren’t

going to give a child rapist less than twenty years

for that first act of rape with Thana.

But is that the end of it? No, members of the court,

because there were more acts of rape than once

(sic). Are you going to say, we are going to limit it

at this one, and say there are no penalties for those

additional rapes? . . . He needs to be punished not

only for one act but for the second act as well...

Based on that evidence, you know that it may have

been more than twice. But let’s be lenient, members

of the court, let’s not punish him on speculation. We

know it was more than once, /et’s just punish him

for two offenses, thirty years.

R. 683-684 (emphasis added).

Trial counsel continued this line of argument with all of

the charges and specifications, including those relating to

sodomy with a child:

What about the other crimes, what about

sodomizing that child, making her perform fellatio

on him, maximum punishment for that is twenty

years. For one offense of sodomy is twenty years,

let’s be lenient, members of the court, let’s be

lenient. Let’s not give him twenty years for taking

that eleven year (sic) in his home and placing his

erect penis in her mouth, for one occasion let’s give

him five, let’s be lenient. But again, you know that

there were at least two, and two five year terms for

repeated acts of sodomy is appropriate.

* * *

What about her, how much time can we give for

that sodomy? We have to punish him for that, you

can’t let him off of that, five years, give him twenty

for Mechelle, let’s be lenient, five years, one fourth.

There’s nothing harsh in that sentence, members of

the court, there’s nothing overbearing, that is less

than what would be appropriate. But we know there

(sic) at least two counts of that. No we don’t

members of the court, we know of five times.

Mechelle told you it happened in the hallway, in the

bathroom, in the car, in the garage, and one other

place, there were five times. Let’s be lenient

members of the court, let’s punish him for two acts

of oral sodomy. . .

R. 685 (emphasis added).

As to the charge and specifications alleging indecent

acts, tria: counsel argued:

What about the indecent acts? The maximum

punishment you can impose for one spcification is

seven years. We know that repeatedly he touched

these children inappropriately. Are we going to

ignore that? Is there no penalty for that because we

are going (sic) sentence him for the sodomies, no

we can’t do that. Seven years for touching that

child’s vagina and saying things to her like, “I know

that felt good.” How much are you going to give for

that? Let’s be lenient, members of the court, three

and a half years. What about repeated acts, three

and a half years for probing that child’s anus with

his finger and causing pain, three and a half years.

R. 686 (emphasis added).

Trial counsel concluded by informing the members that

the maximum punishment for the charge and specification of

desertion “is three years” and by arguing:

So we are at sixty eight years, members of the court,

giving him every break that we can possibly give

him, being as lenient as we can possibly be, sixty

years. How old is this man, members of the court?

He will be thirty next year, that’s ninety years.

Members of the court, that’s life, that is life, for the

crimes that he has committed, that is life.

R. 686.

The Air Force Court of Criminal Appeals had no

difficulty determining that this argument was inappropriate

and “very misleading.” (Appendix B). A court-martial

generally must determine an appropriate unitary sentence and

may only be informed of the individual maximum

punishments carried by each specific offense when the

military judge determines this to be appropriate. United States

v. Gutierrez, 11 MJ 122 (CMA 1981); Rule for Courts—Martial

1005. Unlike other jurisdictions, the military does not provide

for sentences running consecutively or concurrently and there

is no concept at military law of a sentence including

confinement in excess of life. United States v. Andade, 32 MJ

ee -

520, 521 (ACMR 1990). Trial counsel’s argument

unquestionably implied that the maximum punishment for

these offenses was two life sentences for rape under Article

120, UCMJ, plus the additional individual maximum

punishments for the other offenses. From this, he was

effectively able to argue the “lenience” of a single life

sentence which the court-martial ultimately adjudged.

Further, as the Air Force Court of Criminal Appeals itself

pointed out, the argument mislead the members into believing

that a lengthy period of sixty years confinement was the

equivalent of a life sentence. (Appendix B).

Yet. the Air Force Court found that this obviously

misleading argument, which provoked no objection at trial,

did not rise to the level of plain error. Notably, that Court,

exercising its mandate under Article 66(c), UCMJ (10 U.S.C.

§ 866(c)) to approve only those sentences which are “correct

in law and fact,” affirmed “only” so much of the sentence to-

confinement as provides for forty years, notwithstanding its

determination that the misleading argument made by trial

counsel did not provide a basis for relief as plain error. The

Court of Appeals for the Armed Force summarily affirmed the

decision of the Air Force Court. (Appendix A).

After trial and before taking action to approve the

findings and sentence adjudged by any general court—martial,

Article 60(d), UCMJ (10 U.S.C. 860(d)) provides that the

convening authority “shall obtain and consider the written

recommendation of his staff judge advocate or legal officer.”

Article 6(c), UCMJ (10 U.S.C. 806(c), in turn states:

No person who has acted as member, military

judge, trial counsel, assistant trial counsel, defense

counsel, assistant defense counsel, or investigating

officer in any case may later act as a staff judge

advocate or legal officer to any reviewing authority

upon the same case.

Article 6(c) has been “broadly applied . . . in light of its |

well-established purpose ‘to assure the accused a thoroughly

fair and impartial review.’” United States v. Lynch, 39 MJ

223, 227-228 (CMA 1994) citing United States v. Crunk, 4

USCMA 290, 15 CMR 290, 293 (1954).

In the case at bar, the legal advisor to the convening

authority (the Staff Judge Advocate — Colonel N. Steven

Linder) providing the written recommendation required under

Article 60(d) was significantly involved in the trial

proceedings in a manner which the petitioner submits took

him outside of his required fair and impartial role. First, he

participated in an off—the-record conference pursuant to Rule

for Courts—Martial 802, in which he voiced what the defense

counsel characterized as “extreme opposition” to a defense

request for continuance in this case. R. 6-7. Additionally, he

participated as a prosecution witness, testifying that the

reason why the depositions of the purported victims in this

case had been videotaped was to avoid the necessity of having

the children testify in front of the petitioner and to preserve

the evidence. R. 562, 566. This testimony was admitted by the

trial judge in order to rebut the defense implication that these

depositions were videotaped to improperly “coach” the

children. R. 562-563.

When the petitioner raised this issue before the Air Force

Court of Criminal Appeals, that Court recognized the

impropriety of the Staff Judge Advocate’s involvement in the

pre-trial conference in which he reportedly advocated a

position on behalf of the government. (Appendix B).

However, that Court found the error waived by the lack of

objection and did not recognize plain error in the SJA’s

participation. As for Colonel Linder testifying for the

prosecution, the Air Force Court found that, since his

testimony did not relate to a “contested” issue, this

involvement gave rise to no impropriety or error. Again, the

ieiiiiaittiacicatiieaariiaiiiiiaiiillas

Court of Appeals for the Armed Forces summarily affirmed

the decision of the Air Force Court.

REASON FOR GRANTING THE WRIT

THE COURT OF APPEALS FOR THE ARMED

FORCES ERRED BY AFFIRMING THE LOWER

APPELLATE COURT’S DETERMINATION

THAT THERE WAS NO PLAIN ERROR

DESPITE THE PRESENCE OF ERRORS WHICH

SERIOUSLY AFFECT THE FAIRNESS,

INTEGRITY OR PUBLIC REPUTATION OF THE

MILITARY JUSTICE SYSTEM OCCURRING

BOTH DURING THE SENTENCING PHASE OF

TRIAL AND THE POST-TRIAL CLEMENCY

PROCESS.

The decision of the lower military appellate court, as

affirmed by the Court of Appeals for the Armed Forces, clearly ~

reflects recognition of most of the errors asserted by the

petitioner and described above. The Air Force Court explicitly

noted the “very misleading” character of the prosecution’s

sentencing argument in its invitation for the court—martial

members to consider the aggregate of the maximum

punishments available for each individual offense, contrary to

the law in the military jurisdiction. Further, that court

recognized the impropriety of the Staff Judge Advocate’s

involvement in the pretrial conference. However, in each

instance, there was no objection by the petitioner. Absent any

objection, the Air Force Court deemed the errors waived and

insufficient to constitute “plain error.” (Appendix B).

Plain error will lie where there is error which is obvious,

substantial and prejudicial. United States v. Fisher, 21 MJ 327

(CMA 1986); United States v. Olano, 507 U.S. 725, 113 S.Ct.

1770, 123 L.Ed.2d 508 (1993). The errors asserted by

petitioner are obvious as evidenced by the Air Force Court of

Criminal Appeal’s ready acknowledgment of error. The only

error asserted which the Air Force Court did not acknowledge

was error due to the Staff Judge Advocate’s participation at

trial as witness for the prosecution. However, the record of

Colonel Linder’s participation at trial as described above

clearly shows that, contrary to the Air Force Court’s

conclusion, his rebuttal testimony for the prosecution directly

refuted the defense theory of improper influence and control

of the child witnesses — a major issue at trial. Thus, the Air

Force Court’s conclusion is clearly erroneous.

Further, the errors asserted are both “substantial” and

“prejudicial,” terms which are synonymous in most cases,

meaning that the errors must be such as to affect the outcome

of the proceedings. Olano, 113 S.Ct. at 117.

The highly improper sentencing argument of trial

counsel constitutes substantial and prejudicial error, having an

undeniable impact on the sentence as adjudged at trial which

included confinement for life just as the prosecution urged.

Though the Air Force Court declined to find plain error in this

argument, in considering the appropriateness of the sentence

to life in confinement that Court found that such a sentence

was “unusually harsh” for these offenses, noting that “we

could find no Air Force case in which a child sex offender has

been sentenced to confinement for life.” (Appendix B). What

stronger indicia of substantial and prejudicial error could one

ask for? In the history of documented Air Force jurisprudence,

no one has ever been sentenced to life in confinement for

crimes of the nature here involved! Based on this record, the

only explanation for this extraordinary result is the

prosecution’s highly improper and misleading sentencing

argument in the context of this emotionally charged trial for

child sex abuse. Thus the error of allowing this argument was

both substantial and prejudicial.

While it may appear that the Air Force Court’s remedial

action in affirming a “mere” forty year term of confinement

on sentence severity grounds ameliorates this prejudice,

clearly the only appropriate remedy for this obvious,

substantial, and prejudicial error is a new hearing on sentence

in this case. Where, as here, it is impossible to assess what

sentence would have been adjudged absent prejudicial error,

only a rehearing is the appropriate remedy. United States v.

Sales, 22 MJ 305, 307 (CMA 1986); see also United States v.

Suzuki, 20 MJ 248, 249 (CMA 1985)(military service

appellate courts use of Article 66, UCMJ sentence relief

powers to remedy prejudicial legal error cannot be reconciled

with requirement under Articles 51 and 52 UCMJ [10 U.S.C.

§§ 851, 852] that findings and sentence be rendered by the

court-martial; pertinent question upon determination of

prejudicial error is, “What sentence would the court-martial

have adjudged absent the error?” while sentence reassessment.

under Article 66 involves the question, “What sentence do we,

as the appellate court, believe is appropriate based on the law

and the facts?”)

The errors associated with the Staff Judge Advocate’s

improper involvement and consequential disqualification from

preparing the required fair and impartial review for

consideration by the convening authority is no less

substantial, no less prejudicial. Despite the extraordinary

outcome in this case including the adjudged sentence to life in

confinement, the Staff Judge Advocate recommended against

granting clemency and no clemency was granted by the

convening authority. This was true despite the petitioner’s

submission of matters demonstrating the disproportionate

severity of the adjudged sentence in this case relative to

similar cases in the military jurisdiction, the very basis on

which the Air Force Court would later grant sentence relief.

Allied Papers. The substantial and prejudicial error due to the

lack of a truly fair and impartial review is again apparent.

10

Additionally, we must realize the unique importance of

the Staff Judge Advocate’s review and the process for

post-trial clemency within the military justice system. The

Court of Appeals for the Armed Forces has often described

the impartial review by a legal officer as a “right” afforded the

military accused. See United States v. Gordon, 1 USCMA

255, 2 CMR 161, 168 (1952)(“the right to an impartial review

is an important right which must be recognized in the military

justice system and an accused is entitled to have the record

reviewed and the limits of his sentence fixed by one who is

free from any connection in controversy”). Further, it is

frequently acknowledged that a military accused’s best hopes

for sentence relief lie with the convening authority in the

essentially unfettered exercise of his clemency powers. United

States v. Coulter, 3 USCMA 657, 14 CMR 75, 78 (1954). In

Olano, this Honorable Court suggested that there may be a

“special category of forfeited errors that can be corrected

regardless of their effect on the outcome” and that a prejudice

analysis may be inapposite where such “substantial rights” are

concerned. Olano, 113 S.Ct. at 1778. The petitioner submits

that his right to have an impartial review of his case by a legal

officer unconnected with the controversy of his case is such a

substantial right for the military accused that plain error

should be recognized even absent a determination of

prejudice. Allowing a legal officer who testified for the

prosecution as to a contested matter and injected himself into

the proceedings to argue a position for the government, to

later conduct a statutorily required impartial review of the

petitioner’s case is obvious error affecting a substantial right

of the petitioner. As such, it is plain error even if prejudice

were not so apparent.

CONCLUSION

When delineating the authority of the federal courts of

appeals to correct plain error, this Honorable Court held that

a RE aT TON |

11

federal civilian courts have the ability to order correction

where plain error is found, but are not required to do so.

Olano, 113 S.Ct. at 1778. However, the discretion to correct

plain error is not unfettered and this Honorable Court ruled

that such error should be corrected when it “seriously affect[s]

the fairness, integrity or public reputation of judicial

proceedings.” Jd., at 1779 quoting United States v. Atkinson,

297 U.S. 157, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936).

Assuming the same principles guide in the military

jurisdiction, the military appellate courts abused their

discretion by failing to order correction of the errors described

above which obviously and seriously impact the fairness,

integrity and public reputation of the military justice system.

WHEREFORE, petitioner requests that this writ be

granted.

Respectfully submitted,

Ormond R. Fodrea

Major, United States Air Force

Appellate Defense Counsel

Counsel of Record

Harold M. Vaught

Captain, United States Air Force

Appellate Defense Division

Counsel for the Petitioner

Air Force Legal Services Agency

Appellate Defense Division

112 Luke Avenue, Suite 208

Bolling AFB, DC 20332-8000

(202) 767-1562

la

APPENDIX A

UNITED STATES COURT OF

APPEALS FOR THE ARMED FORCES

UNITED STATES, Appellee

v.

David R. COCHRAN (232-94-9560), Appellant

USCA Dkt. No. 96-1015/AF

Crim.App. No. 30714

ORDER

On consideration of the petition for grant of review of

the decision of the United States Air Force Court of Criminal

Appeals, it is by the Court this 28th day of October, 1996,

ORDERED:

That said petition is hereby granted; and

That the decision of the United States Air Force Court of

Criminal Appeals is affirmed.

For the Court,

/s/ John A. Cutts, III

Deputy Clerk of the Court

cc: The Judge Advocate General of the Air Force

Appellate Defense Counsel (VAUGHT)

Appellate Government Counsel (BRESLIN)

2a

APPENDIX B

UNITED STATES

Vv.

COCHRAN, (AFCCA 1996)

UNITED STATES

V.

Sergeant David R. COCHRAN, FR232-94—9560

United States Air Force

COURT

UNITED STATES AIR FORCE COURT OF CRIMINAL

APPEALS ACM 30714 29 April 1996

Synopsis

Sentence adjudged 9 January 1993 by GCM convened at

Edwards Air Force Base, California.

Military Judge: Robert E. Kaszczuk.

Approved sentence: Dishonorable discharge, confinement for

life, total forfeitures of all pay and allowances, and reduction

to E-1.

Attorneys

Appellate Counsel for Appellant: Colonel Jay L. Cohen and

Captain Robert E. Watson.

Appellate Counsel for the United States: Colonel Jeffery T.

Infelise, Lieutenant Colonel Thomas E. Schlegel, Lieutenant

Colonel Mark C. Ramsey, and Major John H. Kongable.

JUDGE

3a

Before DIXON, SCHREIER, and STARR Appellate Military

Judges OPINION OF THE COURT

Text of the decision

DIXON, Chief Judge:

Contrary to his pleas, appellant was convicted of rape,

sodomy, committing indecent acts and desertion. At a trial by

members, he was sentenced to a dishonorable discharge,

confinement for life, total forfeiture of all pay and allowances,

and reduction to the grade of E-1. The convening authority

approved the sentence as adjudged. Appellant assigns four

errors upon appeal. Having considered each of the assigned

errors, we find merit only in his claim that the sentence is

inappropriately severe. We affirm the findings but reduce his

approved sentence pursuant to our authority under Article 66,

UCMJ.

Three of the assignments of error are decided adversely

to the appellant. We reject appellant’s assertion that the record

of trial is not substantially verbatim. The issue, which

appellant raised, is whether the omission of defense counsel’s

objection and argument on the admissibility of prosecution

exhibit 4 (AF Form 2098, Duty Status Change) prevents the

transcript from being considered a substantially verbatim

record. Prosecution exhibit 4 was offered as evidence that

appellant’s duty status was changed from “present for duty” to

“absent without leave” at 0730 hours on 8 September 1992.

Defense counsel argued that the witness, who identified the

form, had no personal knowledge concerning the truth and

accuracy of the information contained therein. The military

judge overruled the objection and admitted the form as a

business document. The appellant asserts the absence of a

verbatim record because the actual objection by defense

4a

counsel was not reflected in the transcript.

Article 54(c)(1), UCMJ, requires a complete record of

the proceedings and testimony in each general court—martial

in which the sentence adjudged includes death, a dismissal, a

discharge, or (if the sentence adjudged does not include a

discharge) any other punishment which exceeds that which

may otherwise be adjudged by a special court-martial.

Obviously, a complete record of appellant’s court—martial was

necessary in view of the adjudged sentence. An omission in

the trial transcript does not affect its characterization as a

complete record unless the omission is “substantial.” United

States v. Lashley, 14 M.J. 7 (C.M.A. 1982); United States v.

McCullah, 11 M.J. 234 (C.M.A. 1981).

In this case, we need not concern ourselves with whether

the omission was or was not “substantial.” The Court has

granted a government motion to submit a Certificate of

Correction signed by Lieutenant Colonel Robert B. Kaszczuk,

the military judge. R.C.M. 1104(d)(2). The Certificate of

Correction removes any mystery relative to omissions in the

original transcript. All that was found to be missing from the

original transcript was the following comment by the trial

defense counsel when prosecution exhibit 4 was offered:

“Objection your honor. It’s hearsay.” With the corrected page,

we find that the trial transcript is complete.

Next, appellant urges this Court to find that trial counsel

committed plain error during his sentencing argument. Trial

counsel began his argument by indicating that the appropriate

sentence would be a dishonorable discharge, reduction to

airman basic, total forfeitures, and confinement for the rest of

the accused’s natural life. He also stated that the government

had the burden of showing the appropriateness of that

sentence. To meet that burden, trial counsel proceeded to

examine each of the offenses for which appellant was

convicted. He stated the maximum authorized confinement for

Sa

each specification and suggested how members, acting

leniently, should calculate a period of confinement for each

offense and thereby accumulate a period of confinement for

sixty years. Trial counsel then suggested that such a lengthy

term would be equivalent to a life sentence.

We believe the trial counsel’s sentencing argument was

very misleading and was objectionable on several grounds.

His argument suggests that members should reach their

sentence through an objective consideration of each

individual specification rather than by determining an

appropriate unitary sentence. See, United States v. Gutierrez,

11 M.J. 122, 125 (C.M.A. 1981)(Everett, Chief Judge,

concurring in the result). Only the military judge should

advise the members regarding the maximum authorized

punishment for specific offenses. R.C.M. 1005. Finally, trial

counsel inappropriately suggests that because of appellant’s

age a lengthy term ot 60 years should be considered the same

as confinement for life. While we do not condone this

argument, we Cannot ignore the fact that it provoked no

objections by the defense counsel. Absent plain error, failure

to object to improper sentencing argument before the military

judge begins to instruct the members constitutes forfeiture of

the error. R.C.M. 1001(g); United States v. Shoup, 31 M.J.

819, 821 (A.F.C.M.R. 1990); United States v. Turner, 30 M.J.

1183 (A.F.C.M.R. 1990). We find no plain error.

Appellant also argues that the Staff Judge Advocate,

Colonel Linder, was disqualified from preparing the SJA

recommendation because of his involvement at the trial.

R.C.M. 1106(b) provides:

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

reviewing or convening authority in the same case.

6a

At trial, Colonel Linder was called as a witness for the

prosecution. His testimony was limited to explaining why he

directed the videotaping of depositions of the victims. He

testified that the depositions were taped in order to preserve

the testimony since, at the time of the deposition, appellant

had deserted. Although the grounds for disqualification under

R.C.M. 1106(b) does not include acting as a witness, the

discussion after the rule states that a staff judge advocate may

also be ineligible to advise the convening authority if he

testifies as to a contested issue. We do not find that Colonel

Linder testified as to a contested issue and was not

disqualified from preparing the SJA recommendation because

of his trial testimony. Appellant argues that Colonel Linder

was also disqualified because the record of trial reflects that

he had voiced strong opposition to continuance of the case.

The only reference to such involvement was a statement

which the defense counsel entered on the record after the

military judge indicated that the trial date had been set during

an R.C.M 802 conference and then asked if either counsel had

anything to add. At that point the record of trial reflects the

following:

IMC: The only other thing defense would like to add to

that, during the 802 conference, that the Staff Judge Advocate,

Colonel Linder entered the room and made note of a strong

opposition to continuance of the case, because in that

discussion with Colonel Linder, that he brought up some

issues, however, I don’t believe that they would require a

disqualification.

MJ: I don’t recall the issues, I am not even sure what you

are talking about, but if you would like to—

MC: I would just like to put it on the record.

MJ: OK. Would you like to identify the issues or just

leave it in a generic—

IMC: Well sir, specifically he discussed extreme

Opposition to the continuance.

(Machine difficulty, it beeped and the last sentence was

repeated by counsel.)

IMC: He discussed having extreme opposition to the

continuance based on what he said was, Government

expenditure of funds for witness travel at the time and the fact

that this trial had been sitting out there, in his words, “for

about a year,” and that he was upset because “this thing

should have gone to trial several months ago, and would have,

had not the accused deserted,” and I believe those are the

words he used. I just want to put it on the record that that

communication was made to the military judge. I believe that

is not sufficient grounds for a challenge.

MI: | think from the date, it is pretty obvious that it

didn’t one way or the other and we are here today, not when

he wanted it to go. So there is no challenge based on that?

IMC: No, sir

We need not address whether the foregoing provides a

grounds for objecting to the post-trial participation of the

Staff Judge Advocate. However, we would be remiss if we left

the impression that there is nothing wrong with a staff judge

advocate participating in a pre-trial conference held pursuant

to R.C.M. 802. R.C.M. 802 permits unrecorded conferences

between the military judge and parties to the trial, which

includes counsel and the accused. Any concerns a staff judge

advocate might wish to convey during such a conference

should be communicated through the trial counsel and not by

personally attending and advocating the position of the

government. Nevertheless, we note this issue was raised for

the first time on appeal. With full knowledge of Colonel

Linder’s involvement in the case, defense counsel raised no

objection to the post-trial SJA recommendation. We find the

failure to object to the SJA recommendation at the time it was

8a

served on the defense waived any potential error. R.C.M.

1106(f)(6); United States v. Felix, 36 M.J. 903 (A.F.C.M.R.

1993).

In his final assigned error, appellant claims his approved

sentence is inappropriately severe. We agree. In doing so, we

are cognizant that this is a very aggravated case of child sex

abuse involving repeated sexual acts by appellant with his

11-year-old stepdaughter and 6—year—old natura! daughter.

Appellant stands convicted of rape, sodomy (both anal and

oral), and other indecent acts. The abuse continued for more

than a year. In addressing the matter of appropriateness of

sentence, we do not lose sight of the fact there is perhaps no

type of offense more repugnant to our society than sexual

abuse involving one’s own children. While there is a wide

range of sentences which may be considered appropriate in a

given case, we believe confinement for life exceeds that limit

in this case.

The fact that the approved sentence is within legal limits

is insufficient to show the sentence is appropriate. Our

mandate under Article 66(c), UCMJ, is to approve only such

sentence, or portion thereof, that we find correct in law and

fact. A review for sentence appropriateness involves the

judicial function of assuring that justice is done and that the

accused gets the punishment he deserves. United States v.

Healy, 26 M.J. 394 (C.M.A. 1988). In assessing this case for

sentence appropriateness, we could find no Air Force case in

which a child sex offender has been sentenced to confinement

for life. United States v. Ciulla, 29 M.J. 868, 870 (A.F.C.M.R.

1989). United States v. Saul, 26 M.J. 568, 575 (A.F.C.M.R.

1988). As repugnant as this case may be, we are not

convinced that it involves offenses so uniquely heinous as to

warrant such an unusually harsh sentence. Therefore, we

approve only so much of appellant’s sentence as extends to a

dishonorable discharge, confinement for 40 years, total

9a

forfeiture of all pay and allowances, and reduction to E-1.

Accordingly, the findings of guilty and the sentence, as

modified, are AFFIRMED.

Senior Judge SCHREIER and Judge STARR concur.

OFFICIAL

ALVIN J. STRIBLING Technical Sergeant, USAF Chief

Court Administrator