CAAF decided United States v. Gaskins, No. 13-0016/AR, 72 M.J. 225 (Gaskins IV) (CAAFlog case page) (link to slip op.), on Thursday, May 23, 2013, finding that the Army CCA did not abuse its discretion in ordering a sentence rehearing after the Government lost a Defense sentencing exhibit, but that the CCA erred when it found that the Appellant waived the Government’s failure to plead the terminal element of the Article 134 specification, and also finding that this failure materially prejudiced a substantial right of the Appellant. CAAF reverses the ACCA in part, sets aside the sentence, and remands the case to the CCA for a sentence reassessment.
Judge Ryan writes for the court, joined by Judge Erdmann and Senior Judge Effron. Judge Stucky writes separately, concurring in part and in the result. Chief Judge Baker also writes separately, concurring in part and dissenting in part.
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 – a sentencing exhibit consisting of the Appellant’s “good soldier book” – went missing and wasn’t included in the record of trial. That omission began an appellate odyssey that, even now, will continue (since CAAF remanded the case to the CCA for a sentence reassessment).
First, 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). Notably, all three of the judges who participated in the oral argument dissented from the CCA’s opinion in the case (and we remarked about the dissenting opinion this post).
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 The case returned to the ACCA, which issued a second en banc opinion (Gaskins II) (unpublished), setting-aside the sentence and authorizing a sentence rehearing.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.
Finally, in July 2012, the ACCA summarily affirmed the findings and sentence (Gaskins III). About ninety days later, CAAF 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.
The Appellant’s argument before CAAF was that the loss of Defense Exhibit A resulted in an incomplete record that requires either a complete rehearing on the merits or a limitation on the sentence that may approved to that which “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.” R.C.M. 1103(f). The Government also argued R.C.M. 1103, but it asserted that a sentencing rehearing is authorized. Judge Ryan and the majority see things differently:
The problem with both parties’ reliance on R.C.M. 1103 is that the provisions they point to are limited in their application, by R.C.M. 1103’s express terms, to instances where a verbatim transcript cannot be prepared. Id. In this case, the transcript is verbatim, but the record was otherwise incomplete prior to the Appellant’s clemency submission because a defense sentencing exhibit was missing.
Slip op. at 11. Because the transcript is verbatim, “R.C.M. 1103(f)’s limiting provisions are inapposite.” Slip op. at 12. Judge Ryan further explains that Article 54 does require a complete record, but nothing limits the ability of a court of criminal appeals to remedy an error in the assembly of a complete record. Such a remedy may include remanding for a rehearing on just the sentence in order to create a complete record of the sentencing hearing:
Where the CCA exercises its authority to order a rehearing on sentence, the record of the rehearing, in concert with the record on findings, constitutes the complete record for review by the convening authority and the CCA, as required by Articles 54 and 66, UCMJ. While R.C.M. 1103(f) does not apply to an incomplete record, it would make little sense to permit a rehearing on findings to create a new record of trial as a remedy for the absence of a verbatim transcript, but not permit a rehearing on sentence to seek to cure any prejudice suffered from a missing sentence exhibit.
Slip op. at 13-14. But the circumstances also matter to the majority, and Judge Ryan notes the factors that help CAAF find that the ACCA’s remedy of a new sentencing hearing “was appropriate under the circumstances.” Slip op. at 14.
We note that a CCA may order a rehearing where it sets aside a sentence adjudged by a lower court and approved by the convening authority. We further note that, on rehearing, the military judge took extra care to craft remedial measures that sought to cure any prejudice Appellant may have suffered from the absence of DE A. She ruled that any victim-impact evidence in aggravation would be time-limited to the date of the original presentencing hearing. She further ruled that TS could not testify, allowing only a stipulation of expected testimony from TS’s mother. Moreover, we consider the fact that, on rehearing, Appellant’s original sentence, awarded by members who had had every opportunity to review DE A — confinement for twelve years, forfeiture of all pay and allowances, reduction to pay grade E-1, and a dishonorable discharge — was reduced by three years’ confinement as indicative that the ACCA’s remedy was nonprejudicial in this case.
Slip op. at 14-15 (citations omitted). Judge Ryan concludes her analysis by highlighting the absence of a statutory or regulatory requirement for “a particular remedial measure to address an incomplete record in a general court-martial, [so] we hold that the ACCA did not abuse its discretion in ordering the rehearing.” Slip op. at 15.
Then the majority turns to the defective Article 134 specification, in a perfectly-captioned section:
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