CAAF decided the Army case of United States v. Davenport, No. 13-0573/AR, 73 M.J. 373 (CAAFlog case page) (link to slip op.), on Monday, August 11, 2014. A majority of the court finds that the total omission of the testimony of a witness from the trial transcript is a substantial omission that renders the transcript nonverbatim. As a result, Rule for Courts-Martial 1103(f) applies and it was error for the Army CCA to affirm the sentence. CAAF reverses the CCA and remands the case for the convening authority to take action consistent with R.C.M. 1103(f).
Judge Ryan writes for the court. She is joined by all but Chief Judge Baker, who dissents because he finds that the missing testimony was not so important to the findings of guilt as to render the transcript nonverbatim.
Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, 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. He was acquitted of a charge of money laundering. He was sentenced to confinement for two years, reduction to E-1, and a bad-conduct discharge. The convening authority approved only one year of confinement, but otherwise approved the adjudged sentence.
When the case arrived at the Army CCA for appellate review it was discovered that:
[M]issing from the record [of trial] was the entire testimony on the merits of SGT MS, a Government witness. The record indicates only that the Government called SGT MS as a witness. Although the court reporter recorded the testimony, at some point after the case concluded the computer on which the court reporter recorded the testimony was reimaged, preventing recovery of the original recorded data. The testimony’s omission from the record was first discovered by appellate defense counsel on appeal to the ACCA. But he was acquitted of a money laundering charge, and that charge was the focus of the missing testimony of Sergeant Smith.
Slip op. at 5. 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 in Gaskins 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.
In Davenport, the Army CCA ordered a DuBay (post-trial factfinding) hearing “to provide the Government an opportunity to reconstruct SGT MS’s testimony.” Slip op. at 6. The DuBay revealed that missing testimony primarily – but not necessarily exclusively – related to the money laundering charge of which Appellant was acquitted. The case was returned to the CCA where:
After considering the findings from Appellant’s DuBay hearing, the ACCA found that “the government was unable to obtain or adequately reconstruct the exact testimony of SGT MS.” Davenport, 2013 CCA LEXIS 361, at *14, 2013 WL 1896277, at *4. Despite this fact, and in tension with the DuBay military judge’s conclusion that the substance and extent of SGT MS’s testimony was “not altogether clear” and that the testimony only “mostly” related to two money laundering charges of which Appellant was acquitted, the ACCA found that SGT MS “had no information relevant to any offense of which Appellant was convicted” and that his testimony “only related to the two money laundering specifications of which appellant was acquitted.” Id. at *11–*14, 2013 WL 1896277, at *3–*4 (emphasis added)
Slip op. at 7. The CCA then affirmed the sentence, finding that “the record in appellant’s case [was] both substantially verbatim and complete for appellate review purposes.” Slip op. at 8 (citation and marks omitted).
Judge Ryan’s opinion of the court focuses on CAAF’s disagreement with the CCA’s conclusion, and she writes that the majority is “hard pressed to agree with the ACCA that we can be certain of what SGT MS testified about.” Slip op. at 12.
Judge Ryan explains that a verbatim transcript need not be actually verbatim but merely “substantially verbatim”:
Despite the dictionary definition of the term “verbatim,” transcripts need not be “[w]ord for word,” but must be “‘substantially verbatim.’” Lashley, 14 M.J. at 8 (noting that “literal compliance with this [verbatim] requirement is impossible”). Logically, if R.C.M. 1103(b)(2)(B) required every transcript to be word for word, “every record could be assailed as deficient” because “[m]any, if not all, records fail to record every word spoken at a hearing.” United States v. Nelson, 3 C.M.A. 482, 486, 13 C.M.R. 38, 42 (1953). As such, a transcript may be deemed “substantially verbatim” though it has certain omissions. In contrast, omissions are qualitatively substantial if the substance of the omitted material “related directly to the sufficiency of the Government’s evidence on the merits,” and “the testimony could not ordinarily have been recalled with any degree of fidelity.” Lashley, 14 M.J. at 9. Omissions are quantitatively substantial unless “the totality of omissions . . . becomes so unimportant and so uninfluential when viewed in the light of the whole record, that it approaches nothingness.” Nelson, 3 C.M.A. at 487, 13 C.M.R. at 43.
Slip op. at 10. But the omission of an entire witness’s testimony is just too much:
The omission of the testimony of an entire merits witness is almost necessarily substantial where, as here, the content of the testimony is equivocal even after attempts to reconstruct it at a DuBay hearing. In this case the omission was substantial both quantitatively, because the entire testimony was omitted, and qualitatively, because the substance of the omitted testimony presumably relates directly to the Government’s evidence on the merits and could not be recalled with fidelity.
Slip op. at 11 (citations omitted). Notably, this isn’t stated as a bright-line rule, and there are plenty of case-specific reasons why this omission is found to be substantial but another omission might not be. See slip op. at 12-13.
Judge Ryan then turns to remedy, noting that “the plain language of R.C.M. 1103(f) indicates there are only two options available to the convening authority when a verbatim transcript cannot be prepared.” Slip op. at 14. Those options are:
(1) Approve only so much of the sentence that could be adjudged by a special court-martial, except that a bad-conduct discharge, confinement for more than six months, or forfeiture of two-thirds pay per month for more than six months, may not be approved; or
(2) Direct a rehearing as to any offense of which the accused was found guilty if the finding is supported by the summary of the evidence contained in the record, provided that the convening authority may not approve any sentence imposed at such a rehearing more severe than or in excess of that adjudged by the earlier court-martial.
Slip op. at 14 (quoting R.C.M. 1103(f)) (paragraph added). So, CAAF reverses the decision of the Army CCA and remands the case “to the Judge Advocate General for return to the Convening Authority for action consistent with R.C.M. 1103(f).” Slip op. at 15.
Chief Judge Baker’s dissent is based on agreement with the CCA, as he finds that:
Here, the DuBay hearing determined that SGT MS’s testimony was primarily directed at the money laundering charges of which Appellant was ultimately acquitted. Therefore, I believe that the missing testimony was not materially important to render the transcript nonverbatim.
Diss. op. at 3. He concludes that “the DuBay military judge’s findings were not clearly erroneous and the CCA did not err in its characterization of the findings. As a result, on the unusual facts of this case, I would conclude the omission was not qualitatively substantial and did not prejudice the Appellant.” Diss. op. at 6.
But the Chief Judge also notes something of a contradiction in the wording of R.C.M. 1103(f):
R.C.M. 1103(f)(2) authorizes a rehearing only for those offenses for which the accused was found guilty. But R.C.M. 1103(f)(1) — which allows the accused to receive a sentence reduction — does not. This creates an absurd result. Specifically, this allows a sentence reduction in a case where the summarized evidence goes only to an offense for which the accused was found not guilty, yet does not allow a rehearing in the same instance (obviously double jeopardy would not permit a rehearing on a matter for which the accused was acquitted). This makes no sense and surely was not the intent of the drafters. Logic and statutory construction principles — namely, that one can derive the meaning of an ambiguous construction in the context of the words or phrases surrounding it — would suggest that R.C.M. 1103(f)(1) is similarly qualified to any offense of which the accused was found guilty. If that were the case, then the application of the sentence limiting provision of R.C.M. 1103(f)(1) would be invalid because in my view the summary of evidence from SGT MS’s testimony did not relate to an offense of which Appellant was found guilty.
Diss. op. at 7-8. This is an interesting point, but Judge Ryan’s point that verbatim transcripts need only be substantially verbatim, and that “omissions are quantitatively substantial unless ‘the totality of omissions . . . becomes so unimportant and so uninfluential when viewed in the light of the whole record, that it approaches nothingness” is an important check on the application of the R.C.M. Slip op. at 10 (quoting Nelson, 3 C.M.A. at 487, 13 C.M.R. at 43) (omission in original). While the R.C.M. doesn’t include this test, presumably an omission that goes only to an offense of which the accused was acquitted would, upon consideration on review, become so unimportant that it approaches nothingness. Perhaps the next modification to the MCM will include a change to address the Chief Judge’s concern and bring the rule in line with CAAF’s jurisprudence on this issue.