IN THE CASE OF 

UNITED STATES, Appellee 

v. 

Jonathan G. SCALO, Private (E-1) 

U.S. Army, Appellant 

No. 04-0250 

Crim. App. No. 20020624 

United States Court of Appeals for the Armed Forces 

Argued November 8, 2004 

Decided February 8, 2005

EFFRON, J., delivered the opinion of the Court, in which 

GIERKE, C.J., BAKER, and ERDMANN, JJ., joined. CRAWFORD, J., 

filed a separate opinion concurring in the result. 

Counsel

For Appellant: Major Sean S. Park (argued); Colonel Mark 

Cremin, Colonel Robert D. Teetsel, Lieutenant Colonel Mark 

Tellitocci and Captain Kathleen D. Schmidt (on brief). 

 

For Appellee: Captain Magdalena A. Przytulska (argued); Colonel 

Steven T. Salata, Lieutenant Colonel Margaret B. Baines, 

Lieutenant Colonel Theresa A. Gallagher and Lieutenant 

Colonel Mark L. Johnson (on brief). 

 

 

Military Judge: Jeffrey D. Smith 

THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION. 
United States v. Scalo, No. 04-0250/AR 

2

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 wrongful use of marijuana (four specifications), wrongful 

possession of marijuana (three specifications), and forgery (two 

specifications), in violation of Articles 112a and 123, Uniform 

Code of Military Justice (UCMJ), 10 U.S.C. §§ 912a and 923. He 

was sentenced to a bad-conduct discharge, confinement for 

fourteen months, and forfeiture of all pay and allowances. The 

convening authority approved these results and suspended 

confinement in excess of twelve months for twelve months 

pursuant to a pretrial agreement. The United States Army Court 

of Criminal Appeals affirmed. United States v. Scalo, 59 M.J. 

646 (A. Ct. Crim. App. 2003) (en banc). 

On Appellant’s petition, we granted review of the following 

issue: 

WHETHER THE UNITED STATES ARMY COURT OF 

CRIMINAL APPEALS ERRED BY HOLDING THAT THE 

STAFF JUDGE ADVOCATE’S FAILURE TO ADVISE THE 

CONVENING AUTHORITY OF THE NATURE AND 

DURATION OF APPELLANT’S PRETRIAL RESTRAINT 

DID NOT CONSTITUTE PREJUDICIAL ERROR. 

Because Appellant failed to make a colorable showing of possible 

prejudice from the error in the post-trial recommendation, we 

affirm the decision of the Army Court of Criminal Appeals. 
United States v. Scalo, No. 04-0250/AR 

3

I. BACKGROUND 

 As we observed in United States v. Finster, 51 M.J. 185, 

186 (C.A.A.F. 1999): 

One of the distinguishing features of the 

military justice system is the broad 

authority of the commander who convened a 

court-martial to modify the findings and 

sentence adjudged at trial. Although 

frequently exercised as a clemency power, 

the commander has unfettered discretion to 

modify the findings and sentence for any 

reason -- without having to state a reason -

- so long as there is no increase in 

severity. 

See also United States v. Davis, 58 M.J. 100, 102 (C.A.A.F. 

2003)(describing the convening authority as the accused’s best 

hope for clemency). When a sentence includes a punitive 

discharge or confinement for one year or more, the convening 

authority must receive a written recommendation from his or her 

staff judge advocate (SJA) before taking action on the case. 

Article 60(d), UCMJ, 10 U.S.C. § 860(d); Rule for Courts-Martial 

(R.C.M.) 1106(a). The President has issued detailed guidance as 

to the material that must be set forth in the SJA’s 

recommendation, including “[a] statement of the nature and 

duration of any pretrial restraint.” R.C.M. 1106(d)(3)(D). 

 The SJA’s recommendation plays a vital role in providing 

the convening authority with complete and accurate advice in the 

exercise of command discretion. See Finster, 51 M.J. at 187. 

Accurate advice is particularly important in light of the fact 
United States v. Scalo, No. 04-0250/AR 

4

that the convening authority is not required to review the 

record of trial personally before taking action. See United 

States v. Diaz, 40 M.J. 335 (C.M.A. 1994). 

In the present case, the SJA reported to the convening 

authority that Appellant had not been subject to any pretrial 

restraint. The parties agree that the SJA erred, overlooking 

the fact that Appellant had been restricted to the confines of 

Fort Stewart, Georgia, for forty-four days prior to his courtmartial. The defense counsel did not comment on this omission. 

II. DISCUSSION 

 If defense counsel does not make a timely comment on an 

omission in the SJA’s recommendation, the error is waived unless 

it is prejudicial under a plain error analysis. R.C.M. 1106(f); 

United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000). We 

conduct a de novo review of this issue. Kho, 54 M.J. at 65. To 

prevail under a plain error analysis, Appellant must persuade 

this Court that: “(1) there was an error; (2) it was plain or 

obvious; and (3) the error materially prejudiced a substantial 

right.” Id.; see United States v. Powell, 49 M.J. 460, 463, 465 

(C.A.A.F. 1998). 

The granted issue in the present appeal involves the third 

prong of the plain error test -- an appellant’s burden to 

establish that the error materially prejudiced a substantial 
United States v. Scalo, No. 04-0250/AR 

5

right. To meet this burden in the context of a post-trial 

recommendation error, whether that error is preserved or is 

otherwise considered under the plain error doctrine, an 

appellant must make “some colorable showing of possible 

prejudice.” Kho, 54 M.J. at 65 (citing United States v. 

Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998)). The low threshold 

for material prejudice with respect to an erroneous post-trial 

recommendation reflects the convening authority’s vast power in 

granting clemency and is designed to avoid undue speculation as 

to how certain information might impact the convening 

authority’s exercise of such broad discretion. See, e.g.,

Wheelus, 49 M.J. at 289. 

The threshold is low, but there must be some colorable 

showing of possible prejudice. See Kho, 54 M.J. at 65. In the 

context of a convening authority’s exercise of post-trial 

discretion, the omission of pretrial restraint information is 

not inherently prejudicial. There must be a colorable showing 

of possible prejudice in terms of how the omission potentially 

affected an appellant’s opportunity for clemency. 

Appellant argues that we should find a colorable showing of 

possible prejudice by looking at his loss of liberty in 

conjunction with the clemency matters submitted to the convening 

authority and his compliance with a pretrial agreement. 

According to Appellant, he was a strong candidate for clemency, 
United States v. Scalo, No. 04-0250/AR 

6

and knowledge of his pretrial restraint could have been the 

additional factor that would have persuaded the convening 

authority to grant clemency. Appellant further maintains that 

if the pretrial restraint information had been included in the 

SJA’s recommendation, the convening authority could have noticed 

that Appellant served his pretrial restraint without 

disciplinary problems, which could have made the convening 

authority more likely to grant clemency. 

Appellant’s argument does not reveal any connection between 

the time he spent in pretrial restraint and his clemency 

request. The petition for clemency that Appellant submitted to 

the convening authority highlighted Appellant’s cooperation with 

authorities, acceptance of responsibility, and desire to witness 

the birth of his child. Appellant did not directly or 

indirectly refer to the pretrial restraint or suggest that the 

convening authority should take it into account in considering 

clemency. Moreover, the 44-day period of pretrial restraint was 

not of such unusual duration that there is a reasonable 

likelihood that the length alone -- without any mention by 

Appellant -- would have attracted the convening authority’s 

attention for purposes of clemency. Under these circumstances, 

Appellant has not made a colorable showing of possible 

prejudice. 
United States v. Scalo, No. 04-0250/AR 

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III. CONCLUSION 

 Accordingly, the decision of the United States Army Court 

of Criminal Appeals is affirmed. 
United States v. Scalo, No. 04-0250/AR 

 CRAWFORD, Judge (concurring in the result): 

 I concur in the result for the reasons set forth in United 

States v. Kho, 54 M.J. 63, 65-66 (C.A.A.F. 2000)(Crawford, C. J. 

(concurring in the result)).