UNITED STATES, Appellee 

v. 

Manuela Del Carmen SCOTT, Senior Airman 

U.S. Air Force, Appellant 

No. 07-0597 

Crim. App. No. 36514 

United States Court of Appeals for the Armed Forces 

Argued December 10, 2007 

Decided February 13, 2008 

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

C.J., and BAKER, ERDMANN, and STUCKY, JJ., joined. 

Counsel

For Appellant: Captain Anthony D. Ortiz (argued); Lieutenant 

Colonel Mark R. Strickland (on brief). 

For Appellee: Captain Nicole Wishart (argued); Colonel Gerald 

R. Bruce, Colonel George F. May, and Major Matthew S. Ward (on 

brief). 

Military Judge: William A. Kurlander 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 
United States v. Scott, 07-0597/AF 

2

Judge RYAN delivered the opinion of the Court. 

Appellant was convicted at a general court-martial, 

pursuant to her pleas, of one specification of conspiracy and 

one specification of wrongful possession of cocaine with intent 

to distribute, in violation of Articles 81 and 112a, Uniform 

Code of Military Justice (UCMJ), 10 U.S.C. §§ 881, 912a (2000). 

Contrary to her pleas, a panel of officers convicted Appellant 

of one specification of using her employment to gain access to 

Air Force records that contained individually identifiable 

information, which Appellant willfully disclosed and offered for 

sale, in violation of Article 134, UCMJ, 10 U.S.C. § 934 (2000). 

The panel sentenced Appellant to a dishonorable discharge, 

confinement for five years, forfeiture of all pay and 

allowances, a fine of $4,000.00, and reduction to E-1. The 

convening authority approved the adjudged sentence. The Air 

Force Court of Criminal Appeals (CCA) affirmed the findings, but 

found Appellant’s sentence inappropriately severe, reassessed 

it, and reduced confinement to four years. United States v. Del 

Carmen Scott, No. ACM 36514, 2007 CCA LEXIS 131, at *4, 2007 WL 

1052498, at *2 (A.F. Ct. Crim. App. March 28, 2007) 

(unpublished). 

We granted Appellant’s petition on the following issue: 

WHETHER THE ADDENDUM TO THE STAFF JUDGE ADVOCATE’S 

RECOMMENDATION CONTAINS “NEW MATTER” NOT PROVIDED TO 
United States v. Scott, 07-0597/AF 

3

DEFENSE COUNSEL FOR COMMENT, NECESSITATING A NEW 

CONVENING AUTHORITY ACTION IN THIS CASE.1

I. Factual Background

Appellant was a participant in what she thought was a 

cocaine trafficking ring. It was actually an undercover sting 

operation conducted by the Federal Bureau of Investigation 

involving several servicemembers. 

After Appellant was convicted, the acting staff judge 

advocate prepared a post-trial recommendation (SJAR) for the 

convening authority, which was properly served on defense 

counsel. In response, trial defense counsel submitted a 

clemency request to the convening authority on behalf of 

Appellant. The clemency request asserted, among other things, 

that many of the officer members likely knew that Appellant was 

the first Airman to be tried for offenses related to the sting 

operation. It further asserted that the members may have given 

an overly harsh sentence to Appellant “so as not to set a 

precedent of lenience knowing other cases would follow.” 

By this time, the acting staff judge advocate had been 

replaced by a new staff judge advocate (SJA). The SJA 

supplemented the recommendation to the Convening Authority in an 

Addendum to the SJAR (Addendum), which addressed Appellant’s 

 

1

 65 M.J. 321 (C.A.A.F. 2007). 
United States v. Scott, 07-0597/AF 

4

request for clemency. The Addendum addressed the 

appropriateness of Appellant’s sentence as follows: 

3. c. The Defense’s “purpose of sentencing” position 

largely questions the utility of the length of confinement 

as it pertains to the rehabilitation of SrA Scott. SrA 

Scott did present a lot of character letters attesting to 

her great rehabilitative potential. However, the facts of 

this case fully support the adjudged sentence. SrA Scott 

was found guilty of conspiring to and wrongful possession 

of cocaine with the intent to distribute, which carried a 

maximum sentence of confinement for 30 years. The sentence 

was adjudged by a panel of officer members who, after 

having the benefit of personally hearing all of the 

evidence in her case, determined that 5 years of 

confinement was appropriate given the circumstances. 

4. Undoubtedly this is a very unfortunate case for SrA 

Scott, her family, friends, and the Air Force. The 

clemency request highlights an Airman that had great 

promise in the Air Force. In the end, the members 

themselves had an opportunity to hear all of the evidence 

presented in this case. In fact, prior to reaching its 

sentence, SrA Scott personally spoke to the panel. After 

hearing all the evidence, the panel sentenced her to 5 

years of confinement, a dishonorable discharge, reduction 

to E-1, total forfeitures, and $4,000 fine. Based upon the 

severity of her crimes and the above comments, I recommend 

that you approve the findings and the sentence as adjudged. 

(emphasis added). 

The SJA did not serve the Addendum on Appellant or her 

counsel. The SJA submitted the Addendum, along with the 

original SJAR and Appellant’s clemency submission, to the 

convening authority. The convening authority did not grant 

Appellant clemency. 

At the CCA, Appellant asserted that the above excerpted 

statements in the Addendum were “new matter” that should have 
United States v. Scott, 07-0597/AF 

5

been served on the defense as required by Rule for CourtsMartial (R.C.M.) 1106(f)(7). The Court of Criminal Appeals 

rejected Appellant’s argument and held that the Addendum did not 

contain new matter. 2007 CCA LEXIS 131, at *4, 2007 WL 1052498, 

at *1. We agree. 

II. Discussion

Whether matters contained in an addendum to the SJAR 

constitute “new matter” that must be served upon an accused is a 

question of law that is reviewed de novo. United States v. 

Chatman, 46 M.J. 321, 323 (C.A.A.F. 1997). 

The initial SJAR must be served upon trial defense counsel 

and the defendant. R.C.M. 1106(f)(1). Defense counsel may then 

submit comments on the SJAR. R.C.M. 1106(f)(4). In turn, the 

SJA has the opportunity to supplement the SJAR in the form of an 

addendum SJAR. R.C.M. 1106(f)(7). If the addendum contains 

“new matter” it must be served on “the accused and counsel for 

the accused.”2

 Id.

“New matter” is not defined in the Manual for CourtsMartial. And this Court has not provided a comprehensive 

definition of “new matter.” United States v. Frederickson, 63 

M.J. 55, 56 (C.A.A.F. 2006) (citing United States v. Catalani, 

 

2

 Nothing precludes this supplement from being served on accused 

and counsel, even when it does not contain new matter. Such 

transparency may preclude appeals such as the one in this case. 
United States v. Scott, 07-0597/AF 

6

46 M.J. 325, 326 (C.A.A.F. 1997)). But we are not without 

guidance. The Discussion to R.C.M. 1106(f)(7) provides that: 

“New matter” includes discussion of the effect of new 

decisions on issues in the case, matter from outside 

the record of trial, and issues not previously 

discussed. “New matter” does not ordinarily include 

any discussion by the staff judge advocate or legal 

officer of the correctness of the initial defense 

comments on the recommendation. 

 While recognizing that the Discussion is non-binding, this 

Court has nonetheless cited with approval its illustrations of 

what is and is not a new matter. See United States v. Buller, 

46 M.J. 467, 468 (C.A.A.F. 1997) (citing cases). Appellant’s 

case falls within the latter category. 

Appellant complains that the Addendum contained new matter 

insofar as it stated that the members had the benefit of 

personally hearing the evidence and determined that the sentence 

was appropriate. We disagree. It was not news, and thus not 

new matter, to note that the members had determined that five 

years of confinement was appropriate after hearing all of the 

evidence in the case. 

The specific points raised in the Addendum that Appellant 

complains of were not comments on “the effect of new decisions 

on issues in the case, matter from outside the record of trial, 

[or] issues not previously discussed.” Buller, 46 M.J. at 468 

(quoting R.C.M. 1106(f)(7) Discussion). Nor were the statements 

in question news to the convening authority, who presumptively 
United States v. Scott, 07-0597/AF 

7

knew that members heard the case, as he referred the case and 

detailed members to it via his convening order. See United 

States v. Key, 57 M.J. 246, 248 (C.A.A.F. 2002) (reasoning that 

a “statement of the obvious” does not constitute new matter). 

Appellant nonetheless argues that the Addendum contained 

“new matter” because it invited the convening authority to defer 

to the members because they had already heard the evidence in 

Appellant’s case and were not persuaded that a lower sentence 

was appropriate. We reject this interpretation of the facts. 

Being told that members arrived at the sentence after hearing 

all the evidence hardly invites the convening authority to shirk 

his duty to take action pursuant to R.C.M. 1107. 

Appellant’s reliance on Catalani, 46 M.J. at 326, and 

United States v. Gilbreath, 57 M.J. 57, 61 (C.A.A.F. 2002), for 

the proposition that “new matter” sweeps so broadly as to 

include this case, is misplaced. The convening authority is 

presumed to know the difference between clemency materials and 

evidence adduced at trial. See United States v. Wise, 6 C.M.A. 

472, 478, 20 C.M.R. 188, 194 (1955) (applying a “presumption of 

regularity” to the convening authority’s actions). In Catalani, 

this Court found that the SJAR addendum contained “new matter” 

both because the SJA erroneously stated that “[a]ll of the 

matters submitted for your consideration in extenuation and 

mitigation were offered by the defense at trial[,]” when in fact 
United States v. Scott, 07-0597/AF 

8

most of the clemency materials were developed after the trial, 

and because the addendum to the SJAR improperly tried to bolster 

the SJA recommendation by alluding to the fact that the case had 

been heard by the “seniormost [sic] military judge in the 

Pacific.” 46 M.J. at 327-28. There is no such factual error or 

bolstering in the Addendum in this case. 

 The present case is similarly distinguishable from 

Gilbreath. The SJAR Addendum at issue in Gilbreath was founded 

on a fallacy –- that the accused was sentenced by members. In 

fact, the accused was sentenced by the military judge. 

Gilbreath, 57 M.J. at 61. The error in the SJAR addendum was 

dispositive of the R.C.M. 1106(f)(7) issue in that case. Here, 

unlike in Gilbreath, there is not an incorrect characterization 

of who conducted sentencing. 

 Of course, Gilbreath also stated that the “logical import” 

of the SJAR addendum’s statement that “after hearing all 

matters, the jury determined a bad conduct discharge was 

appropriate” was that the fictional members had already 

considered the clemency materials that were before the convening 

authority. Gilbreath, 57 M.J. at 61 (emphasis removed). 

Understandably, Appellant relies on this language and other 

dicta in Gilbreath regarding whether the SJAR addendum in that 

case might have been “construed as suggesting that the convening 
United States v. Scott, 07-0597/AF 

9

authority not provide [an] independent and fresh look” at the 

clemency materials because the members had reviewed them. Id. 

But that language was unnecessary to the holding in that case -- 

there were no members -– and does not control the outcome in 

this case. See Gilbreath, 57 M.J. at 62 (Baker, J., concurring 

in the result) (noting that the case turned only on whether 

“‘appellant should have had an opportunity to . . . respond to 

and correct the misleading information’”) (quoting Catalani, 46 

M.J. at 330); see also Alexander v. Baltimore Ins. Co., 8 U.S. 

370, 379 (1808) (cautioning against relying on statements not 

central to the holding of a case).

 It bears repeating, Gilbreath was decided based on the 

addendum SJAR’s incorrect assertion. See Gilbreath, 57 M.J. at 

61 (noting “there was no ‘jury’”). Here, where the issue is 

squarely presented for decision, we clarify that an addendum 

accurately referencing the fact that the court-martial heard 

evidence before imposing a sentence, without more, does not 

constitute new matter.3

 

The SJA’s Addendum stated nothing new and the information 

contained therein was not “erroneous, inadequate, or 

 

3

 While we do not disagree that an addendum that actually invited 

the convening authority to abdicate his duties because the trier 

of fact had reviewed all clemency materials, whether true or 

not, would be new matter within the meaning of R.C.M. 

1106(f)(7), see Catalani, 46 M.J. at 328, the language at issue 

in this case falls short of that mark. 
United States v. Scott, 07-0597/AF 

10

misleading.” Buller, 46 M.J. at 468 (quotation marks omitted). 

Instead, it merely stated an obvious fact in the course of 

advising the convening authority on the “correctness of the 

initial defense comments on the recommendation.” R.C.M. 

1106(f)(7) Discussion. We decline to extend R.C.M. 1106(f)(7) 

to encompass such statements. 

III. Decision

The decision of the United States Air Force Court of 

Criminal Appeals is affirmed.