CAAF will hear oral argument in United States v. Gaskins, No. 13-0016/AR, on Tuesday, February 19, 2013. The court granted review of two issues:
I. Whether the Government’s loss of a sentencing exhibit rendered the record of trial incomplete under Article 54, UCMJ, resulting in a jurisdictional limitation on the sentence to one no greater than that which could be approved for a non-verbatim record.
II. Whether Appellant waived the failure to plead the terminal element of the Article 134 offenses by his failure to raise that issue at the sentence rehearing, and if not, whether those charges should be dismissed because the Government failed to plead the terminal element.
Article 54, UCMJ, requires preparation of “a complete record of the proceedings and testimony,” and Rule for Courts-Martial 1103 provides that when a verbatim transcript cannot be prepared, due to loss of the recording, notes, or other reason, the convening authority may approve no sentence greater than confinement for six months, forfeiture of two-thirds pay per month for six months, and reduction to E-1 (a “non-verbatim sentence”); or the convening authority may direct a rehearing (i.e., redo the entire trial) as to any offense of which the accused was found guilty.
Army Staff Sergeant Gaskins was convicted, in February, 2008, by a general court-martial composed of members with enlisted representation, of carnal knowledge, indecent acts with a child, and indecent assault, in violation of Articles 120 and 134, UCMJ, and sentenced to confinement for twelve years, total forfeitures, reduction to E-1, and a dishonorable discharge. But Defense Exhibit A – the Appellant’s “good soldier book” – went missing and wasn’t included in the record of trial. That omission began an appellate odyssey that continues next week at CAAF, a half-decade later.
The “good soldier book” was a “completely filled 3-inch binder, consisting of Appellant’s Marine Corps service record book, numerous awards from his time in both the Marines and the Army, and photographs and other documentary evidence sufficient to merit consideration by the panel in mitigation.” Appellant’s Br. at 10. It was presented to the members during sentencing and then vanished, and there were (apparently) no copies, tables of contents, summaries of the contents, or other means to adequately recreate the Exhibit.
But despite the language of RCM 1103, the Convening Authority approved the adjudged sentence. On direct review, a three-judge panel of the Army CCA heard oral argument, but then the entire court issued a published opinion ordering a DuBay hearing “to determine whether substantial matters were omitted from the record and, if so, whether it is incomplete under Article 54, UCMJ.” United States v. Gaskins, 69 M.J. 569, 570 (A.Ct.Crim.App. 2010) (en banc) (Gaskins I). Curiously, all three judges who participated in the oral argument dissented from the court’s opinion in the case. One of them, Judge Ham the Great, authored a whopping 23-page dissent, that made us wonder in this post “if the majority judges want their hail and farewell (or whatever the Army calls it) gifts back [from Judge Ham, who soon thereafter departed the ACCA]?”
But then, as discussed in this post, in response to a defense petition for extraordinary relief, “CAAF put a stop to the appellate rescue mission, precluding the DuBay hearing from proceeding.” The case returned to the ACCA, which issued a second en banc opinion (Gaskins II) (unpublished) setting-aside the sentence and authorizing a sentence rehearing. Again there were dissents, and again the Appellant sought extraordinary relief from CAAF, but this time it was denied and the sentence rehearing was conducted in October 2011, resulting in an approved sentence of confinement for nine years, total forfeitures, reduction to E-1, and a dishonorable discharge. Subsequently, in July 2012, the ACCA summarily affirmed the findings and sentence (Gaskins III). About ninety days later, CAAF granted review of the two issues shown above.
The case arrives at CAAF with a big question, a little question, and an unasked question. The Big Question (Issue I) is if the options of a non-verbatim sentence or a complete rehearing are the exclusive remedies for an incomplete record. The Little Question (Issue II) is the familiar Fosler issue, with an appellate wrinkle. And the Unasked Question is if the Appellant’s defense counsel can be ordered to affirm under oath that the missing exhibit didn’t end up in their case files…
The Appellant’s brief presents the missing exhibit issue in four parts: First, the loss of the exhibit is a “substantial omission” that renders the record incomplete, creating a presumption of prejudice that the Government must rebut (recognized in caselaw; see United States v. McCullah, 11 M.J. 234, 237 (C.M.A. 1981)). App. Br. at 9. Second, the Government has failed to meet its burden to rebut that presumption of prejudice caused by the incomplete record. App. Br. at 11. Third, the ACCA erred when it remanded the case for a sentence rehearing, because it lacks the authority to do so. App. Br. at 17-18. Finally, even if the ACCA had the authority to remand the case for a sentence rehearing, the record is still incomplete, there is still a presumption of prejudice, and there is still a need for relief. App. Br. at 21-22.
The Government’s response begins by conceding the Appellant’s first two points: that the missing exhibit is a substantial omission, and that the Government failed to rebut the presumption of prejudice. Gov’t Br. at 8. “The sole issue left in this case is whether the sentence rehearing, instead of a non-verbatim sentence, was an appropriate remedy for the incomplete record.” Id. On this point, the Government argues that “RCM 1103(f)(2) expressly authorizes a [sentence] rehearing,” and suggests possible factors to consider when fashioning a remedy for an incomplete record. Gov’t Br. at 9. The Government’s brief emphasizes this point with the following section:
While the words “sentence rehearing” do not specifically appear in RCM 1103(f)(2), the plain language of the rule clearly encompasses them. First, the language of the rule – “rehearing as to any offense” – is broad enough to encompass both findings and sentence rehearings. This interpretation is also supported by Article 60(e)(3), UCMJ, which authorizes a convening authority to order a rehearing, and Article 66(d), UCMJ, authorizing a Service Court to order a rehearing when the findings or sentence is set aside.
Second, independent sentence rehearings are consistent with this Court’s case law that reviewing authorities may determine whether the lack of completeness affects findings, sentence only, or both, and then shape relief accordingly.
Appellant’s argument that sentence rehearings are per se impermissible would lead to absurd results. Hypothetically, under appellant’s interpretation, convicted murderers would automatically receive a non-verbatim sentence if the government lost a sentencing exhibit. Congress and the President could not have intended that result when they drafted Article 54 and RCM 1103(f).
Gov’t Br. at 13-14 (notes omitted) (emphasis added). The emphasis is added to highlight a classic false dilemma. If a sentence rehearing alone is not permitted, a convicted murderer need not “automatically receive a non-verbatim sentence.” The murderer could instead receive a “[complete] rehearing as to any offense,” just as RCM 1103 provides. Moreover, it’s important to remember (as I noted in this post in May of last year) that:
[M]ilitary law recognizes three types of re-trials: a rehearing, a new trial, and an other trial (as in “another trial”). A rehearing (on findings, sentence, or both) may be ordered when findings or sentence are set-aside, and is a continuation of the former proceedings; a new trial may be ordered when new evidence or a fraud on the court is discovered; an other trial can occur after the original proceedings are declared invalid due to lack of jurisdiction or failure to state an offense.
It is perhaps inconvenient for the Government to re-try the merits of a case where the omission in the record is limited to a sentencing matter, but the Government’s brief doesn’t really explain why the RCM doesn’t require exactly that (and CAAF is pretty reluctant to read convenience into the MCM these days).
The Government’s brief then embarks on a discussion of equitable factors that could be considered when fashioning a remedy that isn’t either a complete rehearing or a non-verbatim sentence. The suggested factors are the way the exhibit was lost (“what this Court should not ignore, however, is that one reason DE A could not be reconstructed is the defense could not articulate with any specificity, nor provide substitutes for, the contents of their own exhibit.” Gov’t Br. at 15.), the ability to present the lost evidence in other forms (“Appellant had the opportunity to present a new, meritorious sentencing case at his rehearing. That is his right; it is not a burden.” Gov’t Br. at 17.), the ability of the military judge to fashion meaningful relief at a sentence rehearing (“The military judge correctly determined a remedy was appropriate for the government’s inability to produce DE A, and she severely limited the government’s sentencing case as a result.” Gov’t Br. at 18.), and if there would be a windfall in approving only a non-verbatim sentence (“Appellant was convicted of extremely serious offenses and was appropriately sentenced to a severe term of confinement.” Gov’t Br. at 22).
The Government’s brief presents a practical way to address an incomplete record, assuming the options of a non-verbatim sentence or a complete rehearing are not the exclusive remedies for an incomplete record (i.e., the Big Question). Unfortunately, despite being seductively practical (yeah, I’m being seduced by the Government here; don’t judge), the Government can’t avoid getting argumentative:
The government’s actions should be compared with that of appellant, and the apparent lack of importance of the evidence at issue. For example, appellant did not move to compel production of any documents he had trouble obtaining. Further, appellant was curiously unable to provide the names of all the colleges he attended [record of which were in the exhibit]. Either appellant was intentionally being obstructionist, or the colleges were not important enough for him to remember their names.
Gov’t Br. at 20 (notes omitted). At the time of the sentence rehearing, the Appellant had spent about four years in confinement (including pretrial confinement). Maybe his lack of participation in the rehearing was caused by sheer hopelessness. Maybe he saw the whole thing as a sham. Maybe he just felt like exercising his right to remain silent that day. Or maybe he was “intentionally being obstructionist”; a perfectly-rational reaction in the face of a twelve-year sentence that his lawyer (probably) kept telling him should be a six-month sentence. In a reply brief, the Appellant responds by claiming that the Government’s proposal would place the defense counsel into a “very real ethical dilemma,” requiring that he “assist the [G]overnment” in reconstructing the exhibit. Reply Br. at 3.
The other issue in this case is whether the Appellant’s convictions for indecent acts and indecent assault, both in violation of Article 134, should stand despite the Government failing to allege a terminal element. The Army CCA found that the Appellant waived the issue when he failed to raise it during the sentence rehearing, but the Government concedes that the CCA erred in that conclusion. Gov’t Br. at 28. This leaves just the Humphries plain-error analysis (the Little Question). But the Army’s Government Appellate Division appears to have embraced a new argument for this issue: the failure to object actually means that the Appellant was on notice of the terminal element.
There is no direct evidence in the trial record that indicates appellant was on notice of the terminal element. The circumstantial evidence of notice, however, is overwhelming. Appellant’s delay in raising the Fosler issue is strong evidence that he was on notice of the terminal element. As the 9th Circuit noted in Leos-Maldonado [302 F.3d 1061, 1065 (9th Cir. 2002)]:
‘[A] late challenge suggests a purely tactical motivation and is needlessly wasteful because pleading defects can usually be readily cured through a superseding indictment before trial. Additionally, the fact of the delay tends to negate the possibility of prejudice in the preparation of the defense, because one can expect that the challenge would have come earlier were there any real confusion about the elements of the crime charged.’
This sounds remarkably familiar; almost like CAAF’s opinion in Humphries created some type of hazard, by (as I wrote in this post) “giv[ing] trial defense counsel faced with a defective specification a reason to do nothing, waiting to complain only if the accused is convicted.” I wonder if we’ll hear the sounds of Chief Judge Baker banging his head against the bench during the oral argument.
Finally, there’s the Unasked Question. Is the missing exhibit in the possession of the defense? The Government’s brief comes as close to that question as I think it dares: “responsibility for a lost exhibit does not always lie entirely with the Government. All parties, including the military judge, trial counsel, defense counsel, and court reporter, ‘bear some responsibility for producing an accurate and complete record of proceedings…’” Gov’t Br. at 15. I can hear Judge Stucky’s voice in my mind, asking the Appellate Defense Counsel during oral argument, “you don’t have the binder, do you?”
I just can’t figure out if the voice is asking the question rhetorically. . .
Note: Multiple blog posts omitted; see our case page for the full history.
• ACCA opinion (Gaskins I)
• Blog post: Judge Ham Has A Few Parting Gifts for Her Friends
• ACCA opinion (Gaskins II)
• Blog post: Some thoughts about the Gaskins writ
• ACCA opinion (Gaskins III)
• Blog post: It’s b-a-a-a-ck; CAAF grants review of Gaskins
• Appellant’s brief
• Appellee’s (Government) brief
• Appellant’s reply brief
• Blog post: Argument preview