UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

JOHNSON, KERN, and BURTON 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Private E1 ANTHONY J. CRUSE 

United States Army, Appellant 

ARMY 20100526 

Headquarters, U.S. Army Combined Arms Center and Fort Leavenworth 

Susan K. Arnold, Military Judge 

Colonel Samuel J. Rob, Staff Judge Advocate (pretrial) 

Lieutenant Colonel Roseanne M. Bennett, Acting Staff Judge Advocate (SJAR) 

Colonel Fred P. Taylor, Staff Judge Advocate (addendum) 

For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Imogene M. 

Jamison, JA; Major Laura A. Kesler, JA; Captain Jennifer A. Parker, JA (on brief). 

For Appellee: Lieutenant Colonel Paul J. Cucuzzella, JA; Major LaJohnne A. White, 

JA; Major Amber J. Williams, JA (on brief). 

27 October 2011 

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SUMMARY DISPOSITION 

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BURTON, Judge: 

 A military judge sitting as a special court-martial convicted appellant, 

pursuant to his plea, of assault upon a sentinel in violation of Article 128, Uniform 

Code of Military Justice, 10 U.S.C. § 928 [hereinafter UCMJ]. An enlisted panel 

sentenced appellant to a bad-conduct discharge, confinement for twelve months, 

forfeiture of two-thirds pay per month for twelve months and reduction to the grade 

of E1. The convening authority approved the adjudged sentence with exception of 

the forfeitures. 

 In this case, appellant, while confined as an inmate at the U.S. Disciplinary 

Barracks at Fort Leavenworth, struck Staff Sergeant C.H. in the head with his fist 

following a brief altercation. Staff Sergeant C.H. was carrying out his 

responsibilities for physical security at the prison at the time he was assaulted. In 

pleading guilty, appellant offered no excuse or justification for his conduct. 
CRUSE—ARMY 20100526 

2

 On appeal, the sole assignment of error is that: 

THE MILITARY JUDGE ERRED BY FAILING TO HOLD PANEL 

DELIBERATION DURING SENTENCING, RESULTING IN A 

STRUCTURAL DEFECT OF APPELLANT’S COURT-MARTIAL. 

The record of trial reveals that, after thoroughly and correctly instructing the panel 

regarding sentencing procedures, the military judge asked the president if the panel 

would like to take a 10-minute recess before deliberating. The president indicated 

affirmatively that the panel would like a recess. The record indicates what then 

transpired: 

MJ: The court will be in recess for 10 minutes. 

[The Court recessed at 1338 hours, 18 June 2010.] 

[The Court reconvened at 1350 hours, 18 June 2010.] 

MJ: Court is called to order. All parties are present to include the 

court members. Ma'am, have you reached a sentence [?] 

PRES: Yes, ma’am. 

No objection of any kind was raised at the time, and the panel then announced the 

sentence. 

 Appellant now contends that instead of properly closing the court for 

deliberations, the military judge mistakenly allowed the panel to take a recess prior 

to their deliberations, to determine a sentence during that recess, and then to 

announce a sentence even though deliberations never officially occurred. Appellant 

further contends that it is unknown who participated in the discussions, if all panel 

members participated, where the discussions were conducted, who was present, and 

whether exhibits were or were not given to the members. Appellant finally contends 

that all of this amounts to a structural error which necessitates setting aside the 

sentence even in the absence of demonstrable prejudice. 

 Our analysis of the assignment of error in this case is controlled by our 

superior court’s decision in United States v. Jones, 37 M.J. 321 (C.M.A. 1993). In 

Jones, the panel members asked for permission to recess before deliberating. The 

military judge told them they could recess and then commence deliberations at a 

specific time, without first reconvening. The panel acted accordingly and then 

announced the sentence. The issue in the Jones case was: 

WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL 
CRUSE—ARMY 20100526 

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PREJUDICE OF APPELLANT BY INSTRUCTING THE PANEL THAT 

THEY HAD THE OPTION TO BEGIN DELIBERATIONS ON 

SENTENCE AT A SPECIFIC TIME WITHOUT RECONVENING 

REGARDLESS OF WHETHER THEY ALL HAD REASSEMBLED. 

Id. at 321-322. 

 In Jones, our superior court assumed that the military judge had committed 

error, saying “the military judge left reassembling totally up to the members and 

failed to provide for a routine administrative ‘head check’ on the record as provided 

by RCM 813(b).” Id. But the court concluded that the error had not “substantially 

prejudiced” the rights of the accused. The court reasoned: 

 Assuming, arguendo, that the military judge erred, that error did 

not amount to a plain error that substantially prejudiced appellant. See

United States v. Fisher, 21 M.J. 327 (C.M.A. 1986). What happened in 

this case, although not a wise practice, does not undermine the 

structural set up for military criminal trials, such as the total 

deprivation of the right to counsel or to a judge who was impartial. See

Arizona v. Fulminante, [499 U.S. 279 (1991)]. 

 The judge properly instructed the members that no one was to 

enter their closed deliberations. There has been no post-trial allegation 

indicating that any improper actions took place on the part of 

witnesses, members, or parties to this trial. Thus, if there was any error 

here, it was not prejudicial. 

37 M.J. at 323-324. 

 Our superior court concluded that plain error analysis was appropriate in 

Jones given the absence of a timely objection by defense counsel. In reaching this 

conclusion, the court relied on United States v. Olano, 507 U.S. 725 (1993), which 

had concluded in “an analogous situation” that allowing alternate jurors in the jury 

room during deliberations was plain error. See Jones, 37 M.J. at 323. 

 Following Jones, we assume that the military judge in this case violated Rule 

for Courts-Marital 813(b) by not reconvening the panel members before their 

deliberations and further conclude that plain error analysis is appropriate given the 

absence of objection by defense counsel. We determine that the error did not 

substantially prejudice appellant for the same reasons our superior court found no 

substantial prejudice in Jones: the members were properly instructed and there is no 

allegation that anything improper occurred during the recess or deliberations. 

 On consideration of the entire record, we hold the finding of guilty and the 

sentence as approved by the convening authority correct in law and fact. 
CRUSE—ARMY 20100526 

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Accordingly, the finding of guilty and the sentence are AFFIRMED. 

 Senior Judge JOHNSON and Senior Judge KERN concur. 

FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

 Clerk of Court

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: