324 US 867, 89 L ed 1422, 65 S Ct 912; Ray v. U. S., 114 F2d 508, cert den 311 US 709, 85 L ed 461, 61 S Ct 318. Distinguishing U. S. v. Keith (No. 503), 1 USCMA 493, 4 CMR 85; U. S. v. McConnell (No. 596), 1 USCMA 508, 4 CMR 100; U. S. v. Wingert (No. 785), 1 USCMA 574, 4 CMR 166; U. S. v. Woods and Duffer (No. 1023), 2 USCMA 203, 8 CMR 3; U. S. v. Mann (No. 924), 2 USCMA 261, 8 CMR 61; U. S. v. Jester (No. 1655), 2 USCMA 280, 8 CMR 80; U. S. v. Curtis (No. 941), 2 USCMA 311, 8 CMR 111; U. S. v. Holland (No. 1754), 2 USCMA 314, 8 CMR 114.) CGCM 9818, Allbee (1954) 16 CMR 454, affd 5 USCMA 448, 18 CMR 72, supra this section.

§ 8. Sentence Where More than One Offense Is Charged § 8.5..Invalidity of findings as to one of offenses charged.

Consideration in assessing sentence on rehearing of affirmed portion of findings of previous trial where Court of Military Appeals had affirmed in part, reversed in part and directed rehearing, see United States v. Field, REH § 1.

§ 9. Offenses Arising Out of Same Transaction

§ 9.1. Generally.

On a trial for stealing morphine syrettes and wrongfully having possession of a habit-forming narcotic drug, the court was instructed as to separate maximum punishments for the larceny and the wrongful possession of the morphine. Held: Instructing as to separate maximum punishments was proper since the offenses were separate. The elements of the offenses concerned are separate and distinct. No proof of stealing is necessary to constitute the offense of wrongful possession of the drug, nor does larceny require allegation and proof that the item stolen was a narcotic. Also, the two offenses are based on widely different ethical foundations. Two distinct social norms are involved. Furthermore, proof of wrongful possession, as that term is used in connection with a narcotics offense, is not comprehended by proof of a physical taking which might be adduced under a larceny specification. The word "steal" as used in the larceny specification, and the allegation "wrongfully have in possession" as used in the narcotics specification, have entirely different connotations. "Possession" as used in the narcotics specification is not the same thing as the "possession" a thief has when he seizes the property of another. (Citing MCM, 1951, par 76a(8); Blockburger v. U. S., 284 US 299, 76 L ed 306, 52 S Ct 180; Pereira v. U. S., 347 US 1, 98 L ed 435, 74 S Ct 358; CGCMS 19378, Murgia, 2 Dig Ops, Sent & Pun § 9.3; U. S. v. Redenius (No. 2450), 4 USCMA 161, 15 CMR 161; U. S. v. McVey (No. 2682), 4 USCMA 167, 15 CMR 167; U. S. v. Beene (No. 2961), 4 USCMA 177, 15 CMR 177; U. S. v. Johnson (No. 4898), 5 USCMA 297, 17 CMR 297.) CGCM 9823-25, Howe et al (1955) 18 CMR 463.

Reviewing authority's action on sentence as removing possible prejudice from multiplicitous charges of desertion and missing movement, see United States v. Dandaneau, CHG & SPEC § 34.1.

§ 9.7. Assault combined with other offenses.

An offense of participating in a breach of peace by engaging in an affray with a number of civilians and an offense of assault and battery arising out of the same transaction are severable for sentence purposes since neither offense is included in the other, different factual elements are required for the proof of each offense and each offense is violative of a different norm, because the gravamen of assault and battery rests in preservation of the individual's immunity from physical harm while the gravamen of breach of peace is that the community be undisturbed by violence. ACM 8994, Catron (1954) 17 CMR 576.

§ 11. Recommendation for Clemency; Post-trial Interview § 11.1. Generally.

The accused was tried by a general court-martial of which a certain lieutenant was the duly appointed defense counsel. The lieutenant was not present at trial, having been expressly excused. Subsequent to the trial, the lieutenant interviewed the accused and prepared a "Post-Trial Clemency Interview" report which he signed as "Assistant Staff Judge Advocate" at Air Force base level. In this report the lieutenant stated that the accused had stated he felt he could meet any probationary period that might be imposed in the suspension of the dishonorable discharge which was included in his sentence. However, the lieutenant stated that in his opinion consideration of suspension of the dishonorable discharge was not advisable and he recommended approval of the sentence as adjudged. The staff judge advocate to the convening authority adopted the majority of the material contained in the lieutenant's report including the recommendation that the sentence adjudged should be approved.

Held that:

- UCMJ, Art 6(c), was not violated by reason of the lieutenant's preparation of the post-trial clemency interview report. An officer who prepares a post-trial clemency report in a general courtmartial trial at a lower echelon of organization than that of the convening authority does not become a staff judge advocate to that convening authority within the meaning of UCMJ, Art 6(c), merely because he signs himself as "Staff Judge Advocate". (Citing ACM 7841, McNeil, 14 CMR 710; ACM 8171, Ferraro, 14 CMR 797; cf. ACM S-8383, Kluver, 14 CMR 922; but see also ACM 8132, Clisson, 14 CMR 817, and ACM 8148, Hightower, 14 CMR 908.)

- however, since the recommendations of the lieutenant adverse to the desires of the accused with respect to suspension of the dishonorable discharge may have been based in part on information obtained from the accused pursuant to the execution of the attorney-client relationship, the possibility that the attorney-client relationship was compromised constitutes prejudicial error without regard to whether the privilege was actually violated. (Citing State v. Rocker, 130 Iowa 240, 106 NW 645; State

v. Wilson, 16 Ind 391; U. S. v. Bishop, 90 F2d 65. Distinguishing ACM 7234, Quindana, 12 CMR 790.) Where in the same general proceedings an attorney takes a position opposed to his former client, it is immaterial that he may not divulge confidential communications from his former client. (Citing State v. Rocker, 130 Iowa 240, 106 NW 645; State v. Wilson, 16 Ind 391.) It is not the actual violation of the privilege but its potential, not the evil, but the appearance thereof, which amounts to prejudice in such circumstances. (See 8 Wigmore on Evidence, sec 2323, 3d ed, 1940.)

that the accused did not waive any privilege implicit in the original relationship with the lieutenant is clear from the recital in the lieutenant's report that the accused desired and hoped that the dishonorable discharge would be suspended. At any rate, the board of review will not speculate upon the subject, and absent some clear showing of waiver by the accused, will presume that he made no knowledgeable waiver.

- it is so important that the attorney-client relationship and the privileges attendant it remain immaculate that any review at convening authority level which is predicated in whole or in part upon a fundamental violation of the attorney-client privilege must likewise be blemished. (See U. S. v. Crunk (No. 3653), 4 USCMA 290, 15 CMR 290; U. S. v. Coulter (No. 2786), 3 USCMA 657, 14 CMR 76; see also par 2b, Ltr, Subject: "Recurring Errors Appearing in Records of Trial," Hq USAF, 1 Apr 54; Military Justice Cir 8, sec 502(1); par 3, Ltr Subject: "Participation in a Case in Dual Capacities," Hq USAF, 21 May 1954.)

the error herein did not deprive the accused of a fair trial with respect to the original findings and sentence. The prejudice is limited to the denial of the accused's right to a fair and impartial review of the record of trial, including assessment by successive reviewing authorities of the appropriateness of the sentence. Since the record was not properly reviewed below, the board of review does not properly have the record before it and may not take final action upon it since competent approving action has not yet been taken by an impartial reviewing authority. The record should be returned to the convening authority with the request that he revoke the court-martial order promulgating the results of the trial and the action taken by him thereon and that he withdraw the promulgating order, action, review of the staff judge advocate, and the post-trial clemency interview from the record of the case and forward the record to another and superior officer exercising general court-martial jurisdiction for review. (Citing CM 372982, Eisenhard, 16 CMR 315.) ACM 8270, Bryant (1954) 16 CMR 747.

After the accused's conviction, the trial counsel prepared a report entitled "Post-Trial Interview." This report set out the highlights of the accused's civilian and military background and also related the substance of interviews with the accused's squadron commander, the prison chaplain and the confinement officer, all of whom spoke of

the accused's fine character and value to the service. However, the trial counsel advocated approval of the entire sentence imposed by the court. He signed the report as "Staff Judge Advocate." It was forwarded to the convening authority with the record of trial and a paraphrase of the report constituted the clemency section of the review by the convening authority's staff judge advocate. This review concluded with a remark that the staff judge advocate to the convening authority agreed that the sentence should be approved and executed. Held: The provisions of UCMJ, Art 6(c), to the effect that a trial counsel may not thereafter act as staff judge advocate to the reviewing authority are designed to assure a fair and impartial review. Fairness and impartiality are demanded not only with respect to the law, but in connection with the sentence. Here the trial counsel's previous antagonistic role prevents his exercising that degree of impartiality required by the code. The trial counsel may be asked for his personal recommendations regarding the sentence, and these may be considered by the staff judge advocate even though they are colored by the former's previous connection with the case. However, here the trial counsel's report was not considered by the convening authority as that of the trial counsel but rather as that of the staff judge advocate of the command at which the court sat. Therefore, the reviewing authority's staff judge advocate's report is so tainted by the impropriety of the trial counsel's report as to fall short of that degree of impartiality contemplated by Art 6 of the Uniform Code of Military Justice. (Citing U. S. v. Coulter, 3 USCMA 657, 14 CMR 75.) However, the error herein did not in any way affect the findings of guilty or the sentence adjudged by the court. Consequently, it is appropriate to return the case for corrective action to the level of proceedings at which the error occurred, and the accused will have the full benefit of all protections afforded him by the direction of a new review and a reconsideration of the case by the convening authority on the basis of that review. (See U. S. v. Sonnenschein, 1 USCMA 64, 1 CMR 64; cf. U. S. v. Crunk, 4 USCMA 290, 15 CMR 290; U. S. v. Coulter, 3 USCMA 657, 14 CMR 75; U. S. v. Deain, 5 USCMA 44, 17 CMR 44.) [Brosman J., concurring, states that the posttrial interview was required by Flying Training Air Force Regulation 111-3 which was designed to assure a complete and fair post-trial interview and that the purpose would be defeated if such an interview was conducted by the trial counsel who had prosecuted the accused.] [Latimer, J., dissenting, states that the officer who authored the post-trial clemency review was not encompassed within any of the proscribed categories of UCMJ, Art 6(c) and so there could not be a violation of the Code provision. Nor was there a violation of the spirit of the Code since the trial counsel's report did not reflect partiality or unfairness and the record contained everything which could be said for or against the accused so that the convening authority could independently evaluate all the evidence weighing for or against leniency.] United States v. Clisson (No. 4635), 5 USCMA 277, 17 CMR 277, reversing ACM 8132, Clisson, 14 CMR 817.

Following the trial of the accused a report entitled "Post-trial Interview" was prepared by a named captain. It was signed as "Judge Advocate". The captain had previously acted as trial counsel in the trial of the accused's co-conspirators with regard to offenses committed jointly but tried separately. The convening authority's staff judge advocate and the assistant staff judge advocate who wrote the review used the information contained in the captain's report in the review but they expressly recognized his possibly biased position and stated that his report was evaluated in that light. Held: The captain must be regarded as "trial counsel in the same case". However, there was no prejudice to the accused from the use of his report in the staff judge advocate's review under the circumstances since the staff judge advocate and his assistant recognized the possibility of bias and evaluated the captain's report accordingly. Those officers, and through them the convening authority, are not forbidden to receive the recommendations of the trial counsel in the case and to consider them in their deliberations on the legality of findings and sentence and appropriateness of the sentence. (Distinguishing U. S. v. Hightower (No. 4879), 5 USCMA 385, 18 CMR 9; U. S. v. Clisson (No. 4635), 5 USCMA 277, 17 CMR 277; U. S. v. Crunk (No. 3653), 4 USCMA 290, 15 CMR 290; U. S. v. Coulter (No. 2786), 3 USCMA 657, 14 CMR 75.) ACM 10197, Dickerson (1955) 18 CMR 834.

Law officer conducting post-trial interview as not an illegal participation in the staff judge advocate's review, see CM 377365, Polk, REVIEW § 25.1.

§ 11.3. As affecting findings or sentence.

On a trial for sodomy the accused judicially admitted committing the act alleged and the court found him guilty thereof and sentenced him to a bad conduct discharge, forfeiture of $100 per month for six months and confinement for the same period. However, all the members of the court submitted a clemency letter to the convening authority recommending that the bad conduct discharge be remitted in view of mitigating circumstances. The convening authority reduced the period of forfeitures and confinement to two months but otherwise approved the sentence. Secretary of the Navy Instructions 1620.1, 5 June 1953, relating to the disposition of cases of homosexuality involving naval personnel, provided in part that known homosexual individuals should be eliminated from the service and that disposition would be accomplished by administrative separation under conditions other than honorable unless the individual resisted separation from the service under such conditions in which case he should be recommended for trial by court-martial. The district legal officer's recommendation which was the basis for the subsequent action by the convening authority stated in part that it was not recommended that the bad conduct discharge be remitted in view of the policy of the Navy Department contained in Secretary of the Navy Instruction 1620.1. In his decision the convening authority stated that no action was taken to remit the bad conduct discharge because of the policy of the Navy Department expressed