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.