### UNITED STATES NAVY

- MARINE CORPS

COURT OF CRIMINAL APPEALS

WASHINGTON, D.C.

Before

F.D. MITCHELL, J. R. MCFARLANE, M.C. HOLIFIELD

Appellate Military Judges

UNITED STATES OF AMERICA

v.

ISMAEL MORALES

PRIVATE (E

- 1), U.S. MARINE CORPS

NMCCA 2014 00388

SPECIAL COURT

- MARTIAL

**Sentence Adjudged:** 24 July 2014

. **Military Judge:** LtCol C.A. Miracle, USMC

. **Convening Authority:** Commanding General, Training Command,

Quantico

, VA

. **Staff Judge Advocate's Recommendation:** C apt M.G.

Blackborow, US MC

. **For Appell ant:**  Maj Michael D. Berry, USMC R

. **For Appellee:** Mr. Brian K. Keller , Esq

.

**1 9**  **February 2015**

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**OPINION OF THE COURT**

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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS

PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

A special court

- martial, consisting of a military judge

alone, convicted the appellant, pursuant to his pleas, of one

specification o f violating a lawful general order, one

specification of dereliction of duty, and one specification of

adultery, in violation of Articles 92 and 134, Uniform Code of

Military Justice, 10 U.S.C. §§ 892 and 934. The appellant was

sentenced to a bad

- conduct discharge. The convening authority2 (CA) approved the adjudged sentence and, pursuant to a pretrial

agreement, suspended the bad

- conduct discharge.

**Failure to Treat VLC Letter as New Matter**

Although not assigned as error, we note that the appellant

was not afforded an opportunity to comment on the letter

submitted by the Victim’s Legal Counsel (VLC) to the CA after

the initial staff judge advocate’s recommendation (SJAR). The

SJAR was signed on 26 September 2014. The appellant, through

counsel, waived his right to submit matters in clemency on 17

October 2014. The VLC submitted a letter to the CA on 30

September 2014, which commented on matters outside the record

pertaining to alleged misconduct far more serious than that to

which the appellant pleaded gu ilty. There is nothing in the

record to indicate the appellant was aware of the VLC letter.

The addendum to the SJAR includes the VLC letter, but does not

treat it as a “new matter” requiring an additional opportunity

for the appellant and his counsel to comment. See R ULE FOR C OURTS

M ARTIAL 1106 (f)(7), M ANUAL FOR C OURTS

- M ARTIAL

, U NITED S TATES (2012

ed.). Given the contents of the VLC ’s letter, we find this to

be error.

When new matter is presented to the CA without giving the

appellant an opportunit y to respond, the burden is on the

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) (citation and internal q uotation marks omitted).

Although the threshold is “low,” United States v. Catalani

, 46

M.J. 325, 327 (C.A.A.F. 1997), the appellant must demonstrate

that the proffered response to the unserved addendum “could have

produced a different result.” United St ates v. Brown

, 54 M.J.

289, 293 (C.A.A.F. 2000). The appellant has not met that burden

and therefore is not entitled to relief.

**Conclusion**

The findings and the sentence as approved by the CA are

affirmed.

For the Court

R.H. TROIDL

Clerk of Cour t