CAAF will hear oral argument in the Army case of United States v. Davenport, No. 13-0573/AR (CAAFlog case page), on Monday, April 29, 2014. The case returns CAAF to the question of how to deal with an incomplete record of trial, with the following granted issue:
Whether the omission of testimony from a trial transcript renders the transcript non-verbatim and therefore subject to the remedy in R.C.M. 1103(f)(1) where the witness’s testimony is only relevant to an offense of which appellant has been acquitted; or, whether such omission should be addressed under R.C.M. 1103(b)(2)(a) (requirement for a complete record) and thus tested for whether the presumption of prejudice has been rebutted. See United States v. Gaskins, 72 M.J. 225 (C.A.A.F. 2013); United States v. Henry, 53 M.J. 108 (C.A.A.F. 2000).
Last term, in United States v. Gaskins, 72 M.J. 225 (C.A.A.F. 2013) (CAAFlog case page), CAAF found that the Army CCA did not abuse its discretion in ordering a sentence rehearing after the Government lost a Defense sentencing exhibit. A major contention in Gaskins was whether the sentence-limitations of R.C.M. 1103(f) applied to the case (no punitive discharge and no confinement or forfeitures beyond six months), but because the transcript was verbatim, CAAF found the rule inapplicable. The court also noted that while Article 54 requires a complete record, nothing limits the ability of a court of criminal appeals to remedy an error in the assembly of a complete record, even when one of the CCA’s own judges decries the effort as an “appellate rescue mission” (discussed here).
But in Davenport, the transcript is not verbatim, as the testimony of at least one witness was lost when “the laptop used by the court reporter, containing both the audio recording and her notes was reimaged upon redeployment from Iraq to Fort Carson, Colorado, rendering it impossible to recover the recording.” Gov’t Br. at 4. The known missing testimony was that of a Sergeant Smith, and the Army CCA ordered a DuBay (post-trial factfinding) hearing to determine the substance of his testimony, whether any other witnesses testified during the missing portion of the transcript, whether the military judge made any substantive rulings during the missing portion, and the reason for and duration of a recess that marked the end of the missing portion.
The case is made more complex by the fact that Appellant was convicted of conspiracy, extortion, and bribery in connection with his duties as the force protection noncommissioned officer-in-charge for FOB Rustamiyah, Iraq, where he extorted money from local nationals in exchange for helping them conduct business on the base. But he was acquitted of a money laundering charge, and that charge was the focus of the missing testimony of Sergeant Smith.
The DuBay hearing revealed that:
Substantively, the trial judge recalled that SGT Smith testified under a limited direct examination, some cross, and some re-direct. 22 The trial judge estimated that SGT Smith’s testimony lasted less than 10 minutes. The trial judge was “very certain” that SGT Smith’s testimony was not relevant to any charge but the money laundering specifications, of which appellant was found not guilty.
The trial judge confirmed that no other issue of substance, including any meaningful objections or rulings, occurred during the time period that is omitted from the record. Following his standard routine, he would have taken notes reflecting any issue or objection affecting appellant’s rights.
Gov’t Br. at 6. From these facts the Army CCA concluded:
In this case, the government was unable to obtain or adequately reconstruct the exact testimony of SGT MS. Nevertheless, it is clear from the military judge’s DuBay findings that SGT MS’s testimony was on the merits and only related to the two money laundering specifications of which appellant was acquitted. Sergeant MS had no information relevant to any offense of which appellant was convicted. Thus, “not one fact of substance or materiality to a legal or factual issue is missing from [appellant’s] transcript.” United States v. Nelson, 3 U.S.C.M.A. 482, 487, 13 C.M.R. 38, 43 (1953). “The totality of the omissions in this record becomes so unimportant and so uninfluential when viewed in the light of the whole record, that it approaches nothingness.” Id. Accordingly, we find the record in appellant’s case is both substantially verbatim and complete for appellate review purposes.
United States v. Davenport, No. 20081102, slip op. at 7 (A.Ct.Crim.App. Apr. 18, 2013).
Despite the DuBay hearing, Appellant argues that there is still “a substantial omission from the record of trial that creates a presumption of prejudice the government cannot overcome.” App. Br. at 10. “The parties here not only disagree with the accuracy and completeness of the recreated portion of the record of trial, but appellate defense counsel as well as counsel at the DuBay continue to oppose the Army Court’s effort to use the DuBay proceeding as a means to fill in this missing portion of the record of trial.” App. Br. at 13.
Appellant’s mere unwillingness to accept the DuBay process and its results isn’t particularly persuasive in the wake of Gaskins, but his brief does try to broaden the focus of this dispute:
The Army Court appears confident that if the record “suggests” that the missing testimony pertained to specifications for which SFC Davenport was acquitted, the omission of that testimony did not relate directly to the sufficiency of the Government’s evidence on the merits and, therefore, could not prejudice SFC Davenport. Whether SFC Davenport was acquitted of the specifications for which SGT Smith testified to or not, SGT Smith was called as a witness for the Government and, as such, his testimony relates to the sufficiency of the Government’s evidence on the merits. Further, given the consistent defense opposition to the proceedings, there is no way for this Court to be confident that “no other material evidence was introduced or rulings made.” As such, the record is both nonverbatim and incomplete.
App. Br. at 15. Appellant also asserts that it is still unclear if additional witness testimony is missing, if the military judge made any substantive rulings during this part of the trial, why there was a recess, and if there were any 802 sessions. In other words, Appellant asserts that the rescue mission failed.
If CAAF agrees that this leaves a substantial omission in the record, then Appellant’s best chance for relief is based on the presumption of prejudice that CAAF applies in such situations:
A substantial omission renders a record of trial incomplete and raises a presumption of prejudice that the Government must rebut. United States v. McCullah, 11 M.J. 234, 237 (C.M.A. 1981); United States v. Gray, [7 M.J. 296 (C.M.A. 1979)]; United States v. Boxdale, 47 C.M.R. 351 (C.M.A. 1973). Insubstantial omissions from a record of trial do not raise a presumption of prejudice or affect that record’s characterization as a complete one.
United States v. Henry, 53 M.J. 108, 111 (C.A.A.F. 2008). CAAF did not modify this presumption Gaskins, instead focusing on “whether a CCA, reviewing the record of trial pursuant to Article 66, UCMJ, is constrained in its ability to remedy the prejudice stemming from a substantial omission.” Gaskins, 72 M.J. at 231 n.7. And so if there is still a substantial omission in the record, then there is a significant burden on the Government to prove it harmless.
Understandably, the Government’s brief begins by trying to lighten that burden. The Government asserts that plain error review (where the burden is on the appellant to show prejudice) should apply to this case because “appellant failed to raise the issue concerning the missing portion of the transcript until his initial brief was filed with the Army Court.” Gov’t Br. at 9. Plain error review is used when an error is forfeited by the failure to object at trial. Considering the error in this case occurred during the post-trial process, and the convening authority is not an appellate authority, it’s really unreasonable for the Government to assert forfeiture in the fact that Appellant did not raise the issue of the deficient transcript until the first stage of appellate review.
Next, the Government’s brief conflates the presumption of prejudice assigned to a substantial omission in the record with the concept of structural error, asserting that “an error is treated as inherently prejudicial, without the need for a further showing of prejudice, only if it amounts to a structural defect in the constitution of a trial.” Gov’t Br. at 10 (marks and citation omitted). A “structural error” is a “defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.” Johnson v. United States, 520 U.S. 461, 468 (1997) (quoting Arizona v. Fulminante, 449 U.S. 279, 310 (1991)). Structural errors cannot be tested for harmlessness and lead to automatic reversal. But there are precious few structural errors:
We have recognized that most constitutional errors can be harmless. . . . Indeed, we have found an error to be structural, and thus subject to automatic reversal, only in a very limited class of cases.
Neder v. United States, 527 U.S. 1, 8 (1999) (marks and citations omitted). A structural error isn’t just prejudicial, it’s irredeemably prejudicial. This case doesn’t involve structural error. Rather, it involves an error that, if it exists, caselaw finds is a bad enough error to require the Government to rebut a presumption of prejudice.
The Government’s brief also discusses whether an incomplete record is a jurisdictional issue, noting that Article 19 includes language that imposes a jurisdictional (sentence-limiting) requirement for a complete record in a special court-martial, but Article 18 contains no such language for a general court-martial. Gov’t Br. at 12. This is an interesting quirk, but not really relevant to the issue since the Government acknowledges that the R.C.M. 1103 requirement for a verbatim transcript, and the accompanying sentence limitation, applies to general courts-martial.
The Government’s goal is to convince CAAF to upset its precedent and apply plain error review in this case, or at least remove the presumption of prejudice, and shift more of the burden to Appellant (who already must convince CAAF that there is a substantial omission). But the Government’s brief makes a poor case for such a dramatic shift.
On the facts of the case, the Government convincingly asserts that “the transcript in this case is substantially verbatim because the totality of the omissions in this record becomes so unimportant and so uninfluential when viewed in the light of the whole record, that it approaches nothingness.” Gov’t Br. at 15 (marks and citation omitted). But even assuming a substantial omission, the Government also convincingly asserts that there is no prejudice “because the omitted portion of the transcript relates solely to a charge for which the accused was acquitted, [and therefore] neither this Court nor any court is constrained in its ability to fully review appellant’s convictions and sentence.” Gov’t Br. at 19. This later point is likely to keep CAAF’s attention, as the court already approved of the Army CCA’s use of post-trial remedies to correct omissions in the record, leaving only the question of the adequacy of that remedy in this particular case.
But if that remedy is inadequate, and CAAF determines that the record still suffers from a substantial omission, the Government concludes its brief by requesting a do-over rather than a sentence limitation:
It is within the discretion of this court, under R.C.M. 1103(f) (1) and (2), and the express authorization of both R.C.M. 810 and Article 66, UCMJ, to order a rehearing. This satisfies both the plain language of the rules and allows the government to remedy any perception of prejudice to appellant.
A rehearing is undoubtedly the more appropriate remedy in this case, as opposed to the imposition of the sentence limitation under R.C.M. 1103(f) (1), because the record clearly supports all findings of guilt, not otherwise dismissed by the Army Court.
Gov’t Br. at 21. This was a hard-fought case at trial, and the CCA set aside some of the findings for legal and factual insufficiency, others for missing terminal elements in Article 134 specifications, and granted relief for excessive post-trial delay. As a result, the CCA approved only confinement for ten months, reduction to E-1, and a bad-conduct discharge (Appellant was sentenced to confinement for two years, but the CA reduced that to just one year in an unexplained act of clemency). Appellant has already served all of that confinement, so the punitive discharge is really the only thing on the table at CAAF.
But if Appellant wins at CAAF, and the Government gets the rehearing it seeks rather than a further reduction of the sentence, the Appellant’s convictions will be vacated. Considering the legal and factual sufficiency issues at the first trial, and the inherent difficulty of proving any criminal case, the Government may want to be careful of what it wishes for.