## UNITED STATES ARMY COUR T 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 Judg e Advocate (SJAR) Colonel Fred P. Taylor, Sta ff Judge Advocate (addendum)

For Appellant: Colo nel Mark Tellitocci, JA; Lieu tenant Colonel Imogene M. Jamison, JA; Major Laura A. Kesler, JA; Ca ptain Jennifer A. Parker, JA (on brief).

For Appellee: Li eutenant Colonel Paul J. Cucuzzella, JA; Majo r LaJohnne A. White, JA; Major Amber J. Will iams, JA (on brief).

27 October 2011

---------------------------------- 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 violatio n of Article 128, Uniform Code of Military Justice, 10 U.S.C. § 928 [hereinafter UCMJ]. An enlisted panel sentenced appellant to a bad-conduct disc harge, confinement for twelve months, forfeiture of two-thirds pa y per month for twel ve months and reduc tion to the grade of E1. The convening author ity approved the adjudged se ntence 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 altercat ion. Staff Sergeant C. H. was carrying out his responsibilities for physi cal security at the prison at the time he was assaulted. In pleading guilty, appell ant offered no excuse or ju stification for his conduct.CRUSE—ARMY 20100526

2 On appeal, the sole assi gnment of error is that:

THE MILITARY JUDGE ERRED BY FAILING TO HOLD PANEL
DELIBERATION DURING SENT ENCING, RESULTING IN A
STRUCTURAL DEFECT OF APP ELLANT’S COURT-MARTIAL.

The record of trial reveals that, after thoroughly and correctly instructing the panel regarding sentencing procedures, the militar y judge asked the pres ident if the panel
would like to take a 10-minute recess befo re deliberating. Th e 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. Al l parties are presen t to include the court members. Ma'am, have you reached a sentence [?]

PRES: Yes, ma’am.

No objection of any kind wa s raised at the time, and th e panel then announced the

sentence.

Appellant now contends that instea d of properly closing the court for deliberations, the milit ary 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 t hough deliberations never officially oc curred. Appellant
further contends that it is unknown who participated in th e discussions, if all panel members participated, where the discussions were conduc ted, 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 erro r 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 rece ss 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 SUBSTANTIALCRUSE—ARMY 20100526

3 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 as sumed that the military judge had committed error, saying “the mi litary judge left reassembling totally up to the members and failed to provide for a rout ine administrative ‘head check ’ on the record as provided by RCM 813(b).” Id. But the court co ncluded that the error had not “sub stantially prejudiced” the rights of the accused. The court reasoned:

Assuming, arguendo , that the military judg e erred, that error did not amount to a plain er ror 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 tria ls, such as the total deprivation of the right to counsel or to a judg e who was impartial. See Arizona v. Fulminante , [499 U.S. 279 (1991)]. The judge properly in structed the members that no one was to
enter their closed deliberations. Ther e has been no post -trial allegation indicating that any improper actions took pl ace 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 pl ain error analysis was appropriate in
Jones given the absence of a tim ely objection by defense co unsel. In re aching this conclusion, the co urt 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 conc lude that plain error analysis is appropriate given the absence of objection by defe nse counsel. We determin e that the er ror did not substantially prejudic e appellant for the same reas ons our superior court found no substantial prejudice in Jones : the members were properly instructed and there is no allegation that anything improper occurr ed during the recess or deliberations.

On consideration of the entire reco rd, we hold the findi ng of guilty and the sentence as approved by the convening authority correct in law and fact.CRUSE—ARMY 20100526

4 Accordingly, the fi nding of guilty and the sentence are AFFIRMED.

Senior Judge J OHNSON and Senior Ju dge KERN concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court MALCOLM H. SQUIRES, JR.
Clerk of Court FOR THE COURT: