Petition for Writ of Certiorari — Maxwell A. Matthew, Petitioner v. United States
Supreme Court briefDec 11, 2025
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No. ______
IN THE
Supreme Court of the United States
__________
MAXWELL A. MATTHEW,
Petitioner,
v.
UNITED STATES,
Respondent.
__________
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the
Armed Forces
__________
PETITION FOR A WRIT OF CERTIORARI
__________
MEGAN R. CROUCH
United States Air Force
Appellate Defense Division
1500 West Perimeter Road
Suite 1100
Joint Base Andrews, MD
20762
(240) 612-4770
megan.crouch.1@us.af.mil
ROBERT FELDMEIER
Counsel of Record
2920 Forestville Rd
Suite 100-1076
Raleigh, NC 27616
(336) 416-2479
Robert.a.feldmeier@gmail.com
Counsel for Petitioner
i
QUESTION PRESENTED
Staff Sergeant (SSgt) Maxwell A. Matthew’s
Convening Authority ordered his court-martial
conviction expunged. He then ordered SSgt Matthew
to again face a court-martial for the same offenses for
which his initial court-martial tried him.
The
Convening Authority did this because the government
lost a portion of the court reporter’s transcription of
the court-martial.
The question presented is: did the Convening
Authority’s action violate the Fifth Amendment’s
double jeopardy clause?
ii
PARTIES TO THE PROCEEDING
All parties to this proceeding appear in the caption
on the cover page of this petition.
CORPORATE DISCLOSURE STATEMENT
No nongovernmental corporations are parties to
this proceeding.
RELATED PROCEEDINGS
Other than the direct appeals that form the basis
for this petition, there are no related proceedings for
the purposes of Rule 14.1(b)(iii).
iii
TABLE OF CONTENTS
QUESTION PRESENTED .................................................. i
PARTIES TO THE PROCEEDING ...................................... ii
CORPORATE DISCLOSURE STATEMENT.......................... ii
RELATED PROCEEDINGS ............................................... ii
TABLE OF CONTENTS ................................................... iii
TABLE OF AUTHORITIES ............................................... iv
INTRODUCTION ............................................................. 1
OPINIONS BELOW ......................................................... 2
JURISDICTION ............................................................... 2
CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED ..................................................................... 2
STATEMENT OF THE CASE ............................................. 3
REASONS FOR GRANTING THE PETITION ....................... 5
CONCLUSION .............................................................. 13
APPENDIX
CAAF Order, United States v. Matthew,
No. 24-0083/AF (July 22, 2025)
1a
CAAF Order Granting Review, United States v.
Matthew, No. 24-0083/AF (March 4, 2025)
2a
Air Force Court Opinion, United States v. Matthew,
No. ACM 39796 (reh) (October 31, 2024)
3a
Air Force Court Opinion, United States v. Matthew,
No. ACM 39796 (f rev) (July 21, 2022)
37a
iv
TABLE OF AUTHORITIES
Cases
Blockburger
v.
United
States,
284 U.S. 299 (1932) ............................................. 7, 8
B.M.
v.
United
States,
84 M.J. 314 (C.A.A.F. 2024) ................................... 6
Brown v. Ohio, 432 U.S. 161 (1977) ......................... 11
J.M.
v.
Payton-O’Brien,
76 M.J. 782 (N-M. Ct. Crim. App. 2017)) .............. 6
Puerto
Rico
v.
Sánchez
Valle,
136 S. Ct. 1863 (2016) ............................................. 5
Spriggs
v.
United
States,
225 F.2d 865 (9th Cir. 1955) ................................. 12
United
States
v.
Anderson,
82 M.J. 82 (C.A.A.F. 2022) ...................................... 6
United
States
v.
Ayalacruz,
79 M.J. 747 (N-M. Ct. Crim. App. 2020) ................ 8
United
States
v.
Cox,
12 U.S.C.M.A. 168 (C.M.A. 1969) ......................... 12
United
States
v.
Dixon,
509 U.S. 688 (1993) ........................................... 8, 11
United
States
v.
Gray,
7 M.J. 296 (C.M.A. 1979) ........................................ 1
United
States
v.
Henry,
53 M.J. 108 (C.A.A.F. 2000) .................................... 6
United
States
v.
Oliver,
57 M.J. 170 (C.A.A.F. 2002) .................................... 6
United States v. Rice, 2020 CCA LEXIS 375
(A. Ct. Crim. App. Oct. 22, 2020) ............................ 7
v
United
States
v.
Rice,
80 M.J. 36 (C.A.A.F. 2020) .................................. 5, 8
United
States
v.
Roderick,
62 M.J. 425 (C.A.A.F. 2006) .................................... 7
United States v. Scott, 437 U.S. 92........................... 11
United
States
v.
Stewart,
71 M.J. 38 (C.A.A.F. 2012) .................................. 8, 9
United States v. Sullivan, 2014 CCA LEXIS 336
(N-M. Ct. Crim. App. May 29, 2014) ...................... 6
United
States
v.
Tate,
82 M.J. 291 (C.A.A.F. 2022) ........................ 6, 11, 12
United
States
v.
Teters,
37 M.J. 370 (C.M.A. 1993) ...................................... 7
United
States
v.
Williams,
74 M.J. 572 (A.F. Ct. Crim. App. 2014) .................. 7
Statutes
28 U.S.C. § 1259 .......................................................... 8
10 U.S.C. § 934 ........................................................ 3, 4
10 U.S.C. § 866 ............................................................ 1
10 U.S.C. § 880 ............................................................ 3
Rules
Rule for Courts-Martial 1103 ................... 1, 2, 5, 7, 11
Rule for Courts-Martial 907 ..................................... 10
Constitutional Provisions
U.S. Const. amend. V.............................................. 2, 5
1
INTRODUCTION
The government lost a recording of the courtmartial that tried SSgt Matthew. Consequently, the
transcript of the proceedings was not substantially
verbatim. To impose a punitive discharge or a
sentence to confinement exceeding six months, the
Uniform Code of Military Justice (UCMJ) requires a
substantially verbatim transcript. United States v.
Gray, 7 M.J. 296, 297-98 (C.M.A. 1979); see also Rule
for Courts-Martial (R.C.M.) 1103. 1 This is because in
the absence of a complete transcription, military
Courts of Criminal Appeals cannot conduct their
required Article 66, UCMJ, 10 U.S.C. § 866, factual
sufficiency review.
Instead of simply approving a reduced sentence
that a non-verbatim transcript could support, the
Convening Authority chose to expunge the findings
and sentence of the court-martial and order a second
court-martial for the same offense as the first.
Although this course was authorized by R.C.M.
1103(f), it violated SSgt Matthew’s double jeopardy
protection by literally forcing him to again stand trial
for the same offense. This Honorable Court should
therefore review the decisions of the military courts
affirming the findings of SSgt Matthew’s second courtmartial.
PETITION FOR A WRIT OF CERTIORARI
SSgt Matthew respectfully petitions for a writ of
certiorari to review the decision of the United States
Court of Appeals for the Armed Forces (CAAF).
1 All references to the Rules for Courts-Martial are to the version
published in the Manual for Courts-Martial, United States (2016
ed.).
2
OPINIONS BELOW
The decisions of the Air Force Court of Criminal
Appeals (Air Force Court) are unreported. They are
available at 2024 CCA LEXIS 460 and 2022 CCA
LEXIS 425 and are reproduced in the Appendix at
pages 3a-36a and 37a-59a. The CAAF’s summary
affirmance is not yet reported. It is available at 2025
CAAF LEXIS 598 and reproduced in the Appendix at
page 1a.
JURISDICTION
The CAAF issued its decision on July 22, 2025.
This Court has jurisdiction under 28 U.S.C. § 1259(3).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The Fifth Amendment provides that no person
shall “be subject for the same offence to be twice put
in jeopardy of life or limb.” U.S. Const. amend. V.
R.C.M. 1103(f)(2016) provides:
If, because of loss of recordings or notes, or other
reasons, a verbatim transcript cannot be prepared
when required by subsection (b)(2)(B) or (c)(1) of
this rule, a record which meets the requirements
of subsection (b)(2)(C) of this rule shall be
prepared, and the convening authority may:
(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
3
(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.
STATEMENT OF THE CASE
On January 25, 2019, and June 19, 2019, a
military judge sitting as a general court-martial in
initial hearing tried SSgt Matthew. Pet.App. 38a.
Consistent with his pleas, the military judge convicted
SSgt Matthew of one specification of attempted
distribution of child pornography and one
specification of possession of child pornography, in
violation of Articles 80 and 134, UCMJ, 10 U.S.C.
§§ 880 and 934 (2012). Pet.App. 38a. The military
judge found SSgt Matthew not guilty of distribution of
child pornography in violation of Article 134, UCMJ,
10 U.S.C. § 934. Pet.App. 38a-39a. The military judge
sentenced SSgt Matthew to confinement for seventeen
months, reduction to the grade of Airman Basic (E-1),
and to be dishonorably discharged from the military
service. Id. The military judge entered a finding of Not
Guilty as to distribution of child pornography in
violation of Article 134, UCMJ, 10 U.S.C. § 934.
Pet.App. 5a.
On December 23, 2020, the Air Force Court
ordered the Judge Advocate General of the Air Force
to return the record of trial to the Convening
Authority because it was substantially incomplete.
Pet.App. 39a. On March 4, 2021, the Judge Advocate
General of the Air Force returned the record of trial to
the Air Force Court because “[a]n authenticated
4
transcript of SSgt Matthew’s arraignment cannot be
obtained because the audio recording of the hearing
has been lost and no alternatives can be located.”
Pet.App. 40a. The Air Force Court then set aside the
finding because it found that the record of trial was
incomplete. Id.
On January 31, 2023, and May 30, 2023, a military
judge sitting in rehearing as a general court-martial
tried SSgt Matthew. Pet.App. 6a. Consistent with
SSgt Matthew’s conditional guilty plea and a pretrial
agreement, preserving him the ability to raise the
issue of double jeopardy on appeal, the military judge
convicted SSgt Matthew of one specification of
possession of child pornography, in violation of Article
134, UCMJ, 10 U.S.C. § 934 (2012). Id. The military
judge sentenced SSgt Matthew to confinement for
twelve months, reduction to the grade of Airman Basic
(E-1), to forfeit all pay and allowances, and to be
discharged from the military service with a bad
conduct discharge. Id. The military judge dismissed
one specification of distribution of child pornography,
in violation of Article 134, UCMJ, 10 U.S.C. § 934, for
former jeopardy. Id.
The Air Force Court affirmed the remaining
specification and the sentence. Pet.App. 36a. On
November 28, 2024, SSgt Matthew moved the Air
Force Court to reconsider its decision. On December
19, 2024, the Air Force Court refused to reconsider its
decision.
SSgt Matthew timely petitioned the CAAF for
review of the Air Force Court’s decision. The CAAF
declined to review the double jeopardy issue that
5
SSgt Matthew specified before that court and
affirmed the findings and sentence. Pet.App. 1a-2a.
REASONS FOR GRANTING THE PETITION
This Court should grant review of SSgt Matthew’s
petition because R.C.M. 1103 violates the double
jeopardy clause, generally and as applied.
A. R.C.M. 1103(f)(2) is generally unconstitutional
because it permits the government a second
chance to meet its burden of proof.
R.C.M. 1103(f)(2) unconstitutionally permits the
Government a second chance to meet its burden of
proof both as to jurisdiction over the sentence and as
to factual sufficiency. 2
The Fifth Amendment
provides that no person shall “be subject for the same
offence to be twice put in jeopardy of life or limb.” U.S.
CONST. amend. V. The Fifth Amendment “shield[s]
individuals from the harassment of multiple
prosecutions for the same misconduct.” United States
v. Rice, 80 M.J. 36, 40 (C.A.A.F. 2020) (quoting Puerto
Rico v. Sánchez Valle, 136 S. Ct. 1863, 1877 (2016)
(Ginsburg, J., with whom Thomas, J., joined,
concurring)).
The Air Force Court’s second decision in
SSgt Matthew’s case misdescribes his appeal as
“unrelated to the sufficiency of the evidence.”
Pet.App. 14a. This statement is incorrect because a
claim of an incomplete transcript is a claim of
2 Although not directly at issue here because of SSgt Matthew’s
guilty plea, R.C.M. 1103(f)(2) unconstitutionally permits the
government to save a conviction that would not survive factual
sufficiency review by adding evidence to the record that it did not
elicit at the initial court-martial.
6
insufficient evidence of jurisdiction.
“The
Government carries the burden of proving jurisdiction
by a preponderance of the evidence.” United States v.
Sullivan, No. NMCCA 201400071, 2014 CCA LEXIS
336, at *5 (N-M. Ct. Crim. App. May 29, 2014) (citing
United States v. Oliver, 57 M.J. 170, 172 (C.A.A.F.
2002)). “The lack of a verbatim transcript is a
jurisdictional error that cannot be waived.” United
States v. Tate, 82 M.J. 291, 294 (C.A.A.F. 2022) (citing
United States v. Henry, 53 M.J. 108, 110 (C.A.A.F.
2000)). Court reporter error in losing a recording of
proceedings is government error because the “actions
of the court reporter . . . [are] entirely under the
Government’s control.” United States v. Anderson, 82
M.J. 82, 86 (C.A.A.F. 2022).
Here, the Government failed to provide a
transcript that was substantially verbatim. The
missing transcription therefore is a deficiency in the
proof of a matter that the Government is required to
prove–that it has met a jurisdictional prerequisite.
The Government may not cure the lack of that proof
by causing SSgt Matthew to face a second courtmartial.
The R.C.M.’s authorization to expunge a conviction
and retry a Servicemember cannot escape an “ironclad fact: [the R.C.M.s] cannot supplant or supersede
the Constitution of the United States.” B.M. v. United
States, 84 M.J. 314, 324 (C.A.A.F. 2024) (citing J.M.
v. Payton-O’Brien, 76 M.J. 782, 787-88 (N-M. Ct.
Crim. App. 2017)). This Court should grant review for
the purpose of addressing the constitutional
permissibility of second courts-martial to cure defects
in the proof of jurisdiction over the sentence.
7
B. Even if not generally unconstitutional, R.C.M.
1103(f)(2) is unconstitutional as applied
because SSgt Matthew was acquitted of a
greater included offense at his first courtmartial.
R.C.M. 1103(f)(2) is unconstitutional as applied
because, as the Air Force Court noted, SSgt Matthew
was acquitted of a distribution offense that was
facially duplicative of the lesser included offense of
possession of child pornography. “We agree with
[SSgt Matthew], and the Government also appears to
agree, that Specification 1 is multiplicious with
Specification 2.” Pet.App. 14a. 3 Possession of child
pornography is multiplicious with distribution of child
pornography when the charge involves the same
images on the same dates. United States v. Williams,
74 M.J. 572, 575-76 (A.F. Ct. Crim. App. 2014).
Charges that are multiplicious offend the
Constitution’s prohibition against double jeopardy
because they impose “multiple convictions and
punishments under different statutes for the same act
or course of conduct.” Id. at 574 (citing United States
v. Roderick, 62 M.J. 425, 431 (C.A.A.F. 2006)). In a
case involving child pornography possession and
distribution, where a Specification alleges only a date
range and does not allege possession of specific
images, double jeopardy attaches as to all child
pornography images possessed or distributed within
that same date range. United States v. Rice, 2020
CCA LEXIS 375, at *4-5 (A. Ct. Crim. App. Oct. 22,
3 “Multiplicity” and “multiplicious” are the terms used in military
practice to describe violations of the Blockburger test for double
jeopardy. Blockburger v. United States, 284 U.S. 299, 304 (1932);
United States v. Teters, 37 M.J. 370, 377 (C.M.A. 1993).
8
2020) (sum. disp. on further rev.).
The Air Force Court incorrectly found that
SSgt Matthew “has never been acquitted” of
possession.
Pet.App. 14a.
In acquitting
SSgt Matthew of Specification 2, without announcing
a lesser included finding of guilt of possession within
Specification 2, the military judge acquitted
SSgt Matthew of both distribution and possession of
child pornography, because possession is a lesser
included offense of distribution. Acquittal of a greater
offense is also an acquittal of a lesser included offense,
unless the finder of facts returns a verdict of guilt as
to the lesser included offense. See, e.g., United States
v. Ayalacruz, 79 M.J. 747, 752-53 (N-M. Ct. Crim. App.
2020) (holding that the panel’s failure to return a valid
finding of guilty to any lesser included offense
resulted in an acquittal as to that offense and all
lesser included offenses). After an acquittal lifts
jeopardy, “the common proposition, entirely in accord
with Blockburger v. United States, 284 U.S. 299
(1932)] [is] that prosecution for a greater offense . . .
bars prosecution for a lesser included offense.” Rice,
80 M.J. at 50 (quoting United States v. Dixon, 509 U.S.
688, 705 (1993)). Where a verdict results in “both
guilty and not guilty [findings] of the same offense . . .
the principles underpinning the Double Jeopardy
Clause” cause jeopardy to attach to both specifications
and prevent a rehearing on them. United States v.
Stewart, 71 M.J. 38, 43 (C.A.A.F. 2012).
Since the military judge both acquitted
SSgt Matthew (in Specification 2, as a lesser included
offense) of possession and convicted SSgt Matthew (in
Specification 1) of the same offense, his retrial for
possession was barred by double jeopardy.
9
In Stewart, members considered two specifications
“that… alleged exactly the same offense.” Id. at 42.
They were instructed to consider lesser included
offenses in both specifications. Id. The members
acquitted the appellant of Specification 1 and did not
return a guilty finding for any lesser included offense.
The members then convicted the appellant of the same
offense within Specification 2. This Court held that a
concurrent conviction and acquittal for the same
offense was an acquittal as to both and caused double
jeopardy to attach to both. Id. at 43.
Similar to Stewart, where two specifications were
duplicative, the Air Force Court found that
Specifications 1 and 2 are duplicative. Further
similar to Stewart, in which the panel acquitted the
appellant of one of the duplicative specifications, 71
M.J. at 42, here, the military judge acquitted
SSgt Matthew of one of the two duplicative
specifications. (Trial Tr. 43)(original hearing). As in
Stewart, the military judge’s concurrent acquittal and
conviction
of
SSgt Matthew
for
duplicative
specifications constituted an acquittal as to all.
Stewart, 71 M.J. at 43. Double jeopardy therefore
attached as to all.
To accomplish its apparent aims, the Government
should have amended Specification 1 to transform it
into an attempted distribution specification and
dismissed the unamended distribution language.
Such an amended specification would not be facially
duplicative of Specification 2. The Government,
however, did not do this. Instead, the Government
opted to present no evidence as to Specification 2 and
acquiesced to the military judge’s entering of a finding
of not guilty as to it. (Trial Tr. 43)(original hearing).
This finding of not guilty attached to Specification 2
10
and to every lesser included offense within that
specification to which the military judge did not
return a lesser included finding of guilty. Since the
military judge did not return a finding of guilty as to
the lesser included offense of possession within
Specification 2, he acquitted SSgt Matthew of
possession as alleged within Specification 2 as a lesser
included offense.
The Air Force Court held that “the Government is
not
prohibited
from
charging
multiplicious
specifications in the alternative.” Pet.App. 14a. See,
however, R.C.M. 907(b)(3)(B) for the proposition that
where one charge subsumes the other, the subsumed
charge should be dismissed before findings, contra
Pet.App. 11a-12a. Even if the practice of charging
multiplicious offenses is permissible, this case
illustrates the risk in so doing. When the Government
charges multiplicious specifications, an acquittal of
one specification results in an acquittal of all. Trial
counsel realized this but realized it too late and
unsuccessfully moved the court-martial to reconsider
its finding of not guilty as to distribution. (Trial Tr.
170)(original hearing). “[A] finding of not guilty—
whether erroneous or not—is final, may not be
appealed, and terminates jeopardy.” Pet.App. 11a.
This Court should grant review to address this double
jeopardy issue. This Court should find that jeopardy
attached and lifted when the military judge both
acquitted and convicted SSgt Matthew of the same
offense.
11
C. Even if Double Jeopardy did not attach to the
possession specification when SSgt Matthew
was acquitted of distribution, it attached when
the Convening Authority expunged the findings
as to Specification 2.
The Convening Authority’s decision to expunge the
previous finding of guilt as to Specification 2 caused
jeopardy from SSgt Matthew’s acquittal for the
original Specification 1 to attach to it. When the
convening authority orders a re-hearing under R.C.M.
1103(f)(2), the new proceeding is not a continuation of
the previous one but a “start . . . anew.” Tate, 82 M.J.
at 297. The previous proceeding is expunged. The
prohibition against double jeopardy not only protects
against multiple punishments for the “same offence,”
Dixon, 509 U.S. at 696 (internal quotation marks
omitted) (citation omitted), but also “forbids
successive prosecution and cumulative punishment
for a greater and lesser included offense.” Brown v.
Ohio, 432 U.S. 161, 169 (1977).
This is true
irrespective of finality under Article 76, UCMJ,
because an appellant has an “interest . . . in avoiding
multiple prosecutions even where no final
determination of guilt or innocence has been made.”
United States v. Scott, 437 U.S. 82, 92 (1978).
SSgt Matthew’s acquittal for Specification 2 and
the subsequent expungement of the findings as to
Specification 1 caused jeopardy to attach to
Specification 1 because Specification 1 is a lesser
included offense of Specification 2. Jeopardy attached
at the taking of evidence as to Specification 2. It
terminated once SSgt Matthew was acquitted of that
charge. As a result, SSgt Matthew could not be placed
in jeopardy again for Specification 2 or the lesserincluded Specification 1.
12
Jeopardy for both specifications terminated
because the rehearing was not a continuation but a
“start anew” of a previously concluded court-martial.
See Tate, 82 M.J. at 297. Unlike cases in which a court
sets aside a finding of guilty for legal error, here, the
Air Force Court did not dismiss the findings as to any
Specification.
Pet.App. 51a.
The Convening
Authority, however, elected to “expunge” the findings
from the original hearing and start anew. The
Government may not begin a “new” second
prosecution because SSgt Matthew was already tried
for the greater included offense and found not guilty
of it. It also may not expunge a conviction and then
retry the Charge because jeopardy attached at trial
and then terminated with the expungement.
“Reversal of a conviction by appellate authority
and the direction of a rehearing of the case generally
leaves the proceedings in the same position as before
trial.” United States v. Cox, 12 U.S.C.M.A. 168, 169
(C.M.A. 1969) (citing Spriggs v. United States, 225
F.2d 865 (9th Cir. 1955)(no pin cite in original
citation)). In this case, the Convening Authority
reversed SSgt Matthew’s convictions for possession
and attempted distribution of child pornography.
SSgt Matthew therefore entered rehearing in the
same position as if he were never tried for possession
with one exception – he was now acquitted of a greater
included offense of distribution. The previous finding
of guilt was no longer intact. It did not prevent
jeopardy from attaching to proceedings such as this
which “start anew” of the previously concluded courtmartial. See Tate, 82 M.J. at 297.
Therefore, this Honorable Court should grant
review for the purpose of dismissing the Charge and
13
its Specification with prejudice to remedy the double
jeopardy violation present here.
CONCLUSION
For the foregoing reasons, the petition for a writ of
certiorari should be granted.
Respectfully submitted,
ROBERT FELDMEIER
Counsel of Record
2920 Forestville Rd
Suite 100-1076
Raleigh, NC 27616
(336) 416-2479
Robert.a.feldmeier@gmail.com
MEGAN R. CROUCH
United States Air Force
Appellate Defense Division
1500 West Perimeter Road
Suite 1100
Joint Base Andrews, MD 20762
(240) 612-4770
megan.crouch.1@us.af.mil
Counsel for Petitioner
APPENDIX
TABLE OF CONTENTS
CAAF Order, United States v. Matthew,
No. 24-0083/AF (July 22, 2025)
1a
CAAF Order Granting Review, United States v.
Matthew, No. 24-0083/AF (March 4, 2025)
2a
Air Force Court Opinion, United States v. Matthew,
No. ACM 39796 (reh) (October 31, 2024)
3a
Air Force Court Opinion, United States v. Matthew,
No. ACM 39796 (f rev) (July 21, 2022)
37a
1a
United States Court of Appeals
for the Armed Forces
Washington, D.C.
United States,
USCA Dkt. No. 25-0083/AF
Appellee
Crim.App. No. 39796
v.
Maxwell A.
Matthew,
ORDER
Appellant
On further consideration of the granted issue, __
M.J. __ (Daily Journal March 4, 2025), and in view of
United States v. Johnson, __ M.J. __ (C.A.A.F. 2025),
it is, by the Court, this 22nd day of July, 2025,
ORDERED:
That the decision of the United States Air Force
Court of Criminal Appeals is hereby affirmed.
For the Court,
/s/ Malcolm H. Squires, Jr.
Clerk of the Court
cc:
The Judge Advocate General of the Air Force
Appellate Defense Counsel (Feldmeier)
Appellate Government Counsel (Payne)
2a
United States Court of Appeals
for the Armed Forces
Washington, D.C.
United States,
Appellee
v.
USCA Dkt. No. 25-0083/AF
Crim.App. No. 39796
ORDER GRANTING REVIEW
Maxwell A.
Matthew,
Appellant
On consideration of the petition for grant of review
of the decision of the United States Air Force Court of
Criminal Appeals, it is, by the Court, this 4th day of
March, 2025,
ORDERED:
That said petition is hereby granted on the
following issue:
AS APPLIED TO APPELLANT, WHETHER 18
U.S.C. § 922 IS CONSTITUTIONAL IN LIGHT
OF RECENT PRECEDENT FROM THE
SUPREME COURT OF THE UNITED
STATES.
For the Court,
/s/ Malcolm H. Squires, Jr.
Clerk of the Court
cc:
The Judge Advocate General of the Air Force
Appellate Defense Counsel (Feldmeier)
Appellate Government Counsel (Payne)
3a
UNITED STATES AIR FORCE COURT OF
CRIMINAL APPEALS
________________________
No. ACM 39796 (reh)
________________________
UNITED STATES
Appellee
v.
Maxwell A. MATTHEW
Staff Sergeant (E-5), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial
Judiciary
Decided 31 October 2024
________________________
Military Judge: Matthew N. McCall (arraignment);
Pilar G. Wennrich.
Approved
sentence:
Bad-conduct
discharge,
confinement for 12 months, forfeiture of all pay and
allowances for 12 months, and reduction to E 1.
Sentence adjudged on 30 May 2023 at Patrick Space
Force Base, Florida.
For Appellant: Robert Feldmeier, Esquire.
For Appellee: Colonel Matthew D. Talcott, USAF;
Major Jocelyn Q. Wright, USAF; Mary Ellen Payne,
Esquire.
Before JOHNSON, RICHARDSON, and KEARLEY,
Appellate Military Judges.
4a
Chief Judge JOHNSON delivered the opinion of the
court, in which Senior Judge RICHARDSON and
Judge KEARLEY joined.
________________________
This is an unpublished opinion and, as such,
does not serve as precedent under AFCCA Rule
of Practice and Procedure 30.4.
________________________
JOHNSON, Chief Judge:
Appellant’s case is before this court for a third
time. At Appellant’s original court-martial, he was
charged with one specification of wrongful possession
of child pornography on divers occasions (Specification
1) and one specification of wrongful distribution of
child pornography on divers occasions (Specification
2), both offenses occurring between 30 August 2015
and 19 October 2017, and both in violation of Article
134, Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 934. 1 A general court-martial composed of a
military judge alone found Appellant guilty, in
accordance with his pleas, of wrongful possession of
child pornography, as alleged in Specification 1, and
attempted wrongful distribution of child pornography
in violation of Article 80, UCMJ, 10 U.S.C. § 880, a
lesser-included offense of the wrongful distribution
offense alleged in Specification 2. After the
Government informed the military judge it did not
1 All references to the punitive articles of the UCMJ are to the
Manual for Courts-Martial, United States (2012 ed.). Unless
otherwise noted, all other references to the UCMJ and Rules for
Courts-Martial (R.C.M.) are to the Manual for Courts-Martial,
United States (2019 ed.).
5a
intend to offer proof of the greater offense, the military
judge entered a finding of not guilty as to wrongful
distribution of child pornography. The military judge
sentenced Appellant to a dishonorable discharge,
confinement for 17 months, and reduction to the grade
of E-1. The convening authority approved the
adjudged sentence.
Appellant initially raised two assignments of error
on appeal: (1) whether Appellant’s guilty plea to
attempted distribution of child pornography was
provident; and (2) whether the record of trial was
incomplete. During this court’s initial review of the
record, we determined the transcript of Appellant’s
arraignment was missing. Pursuant to Rule for
Courts-Martial (R.C.M.) 1104(d)(1), this court
remanded the record of trial for corrective action.
United States v. Matthew, No. ACM 39796, 2020 CCA
LEXIS 486, at *2 (A.F. Ct. Crim. App. 23 Dec. 2020)
(order). The Government subsequently returned the
record without correction, stating “[a]n authenticated
transcript of Appellant’s arraignment cannot be
obtained because the audio recording of the hearing
has been lost and no alternatives can be located.” This
court found the record was not verbatim as required
by Article 54, UCMJ, 10 U.S.C. § 854, and R.C.M.
1103(b)(2)(B), 2 set aside the findings and sentence,
and returned the record to The Judge Advocate
General (TJAG) “for return to an appropriate
convening authority for action consistent with R.C.M.
1103(f).[ 3]” United States v. Matthew, No. ACM 39796
2 Manual for Courts-Martial, United States (2016 ed.).
3 Manual for Courts-Martial, United States (2016 ed.).
6a
(f rev), 2022 CCA LEXIS 425, at *16 (A.F. Ct. Crim.
App. 21 Jul. 2022) (unpub. op.).
On remand, the convening authority referred the
original Specifications 1 and 2 and the Charge to a
second general court-martial. Pursuant to a pretrial
agreement (PTA) between Appellant and the
convening authority, the military judge accepted
Appellant’s conditional guilty plea to Specification 1
and the Charge. The military judge dismissed
Specification 2 with prejudice pursuant to a defense
motion. The military judge sentenced Appellant to a
bad-conduct discharge, confinement for 12 months,
forfeiture of all pay and allowances for 12 months, and
reduction to the grade of E-1. The convening authority
approved the rehearing sentence in its entirety.
Now again before us on appeal, Appellant raises
five issues, which we have reordered and rephrased:
(1) whether the Double Jeopardy Clause 4 prohibited a
rehearing as to Specification 1 of the Charge; (2)
whether the Charge and Specification 1 must be
dismissed, with or without prejudice, due to violation
of Appellant’s R.C.M. 707 right to speedy trial; (3)
whether Appellant’s sentence violates Article 63,
UCMJ, 10 U.S.C. § 863; (4) whether Appellant is
entitled to relief for excessive post-trial delay; and (5)
whether the Government can prove 18 U.S.C. § 922 is
constitutional, meaning its application is consistent
with the nation’s historical tradition of firearm
regulation, when Appellant was convicted of a
nonviolent offense. We also address two matters the
court identified in our review of the record: (6) an
omission from the record of trial; and (7) an error in
the court-martial promulgating order. We have
4 U.S. CONST. amend. VI.
7a
carefully considered issue (5) and find it does not
warrant discussion or relief. See United States v.
Matias, 25 M.J. 356, 361 (C.M.A. 1987). We direct
correction of the court-martial order in our decretal
paragraph. As to the remaining issues, we find no
error that materially prejudiced Appellant’s
substantial rights, and we affirm the findings and
sentence.
I. BACKGROUND
In April 2017, a computer application company
self-reported multiple files of apparent child
pornography, located on its servers and associated
with a particular account, to the National Center for
Missing and Exploited Children (NCMEC). NCMEC
was able to identify an Internet Protocol (IP) address
and email address associated with the reported
account. NCMEC notified the Federal Bureau of
Investigation, which obtained additional information
associating Appellant with the IP address, email, and
suspected child pornography. The Air Force Office of
Special Investigations (AFOSI) initiated an
investigation in October 2017. In November 2017, the
AFOSI interviewed Appellant, who admitted to
possessing and watching child pornography, including
receiving and storing such material on the Internet
and viewing such material on his cell phone. With
Appellant’s consent, the AFOSI searched his phone
and found several files containing child pornography.
The AFOSI also searched Appellant’s residence
pursuant to a search warrant and found additional
child pornography on electronic devices located there.
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II. DISCUSSION
A. Double Jeopardy
1. Additional Background
After Appellant was arraigned for the rehearing,
the Defense filed a pretrial motion to dismiss the
Charge and both specifications on double jeopardy
grounds. The Defense argued Appellant’s reprosecution for Specification 2 (wrongful distribution
of child pornography) was barred because the military
judge at the original court-martial had entered a
finding of not guilty as to that specification. The
Defense further argued Specification 1 (wrongful
possession of child pornography) must be dismissed
because Specification 1 was a lesser-included offense
of, and multiplicious with, Specification 2, of which
Appellant had been acquitted. In response, the
Government argued neither specification was
required to be dismissed because the convening
authority’s decision to order a full rehearing
“expunged” the result of the first court-martial.
While the defense motion to dismiss was pending,
Appellant and the convening authority entered a PTA
which provided Appellant would plead guilty to
Specification 1 and to the Charge, but not guilty to
Specification 2. The PTA further provided that “upon
the announcement of the findings of the court,” the
convening authority would “direct Trial Counsel to
dismiss Specification 2 of the Charge, necessarily
including its lesser included offense of attempted
distribution of child pornography.” The PTA further
provided Appellant’s guilty pleas were “conditioned on
[Appellant’s] ability to preserve for review the
military judge’s decisions concerning [Appellant’s]
motion to dismiss the Charge for violation of R.C.M.
9a
707 and [his] motion to dismiss the Charge for double
jeopardy.”
When the court-martial reconvened on 30 May
2023, prior to entry of pleas, the military judge
entered an oral ruling on the Defense’s motion to
dismiss for former jeopardy, which she subsequently
supplemented in writing. The military judge granted
the motion in part and denied it in part. She dismissed
Specification 2 with prejudice, explaining “an
announced decision to acquit is final” and “cannot be
impeached, . . . withdrawn or disapproved.” However,
the military judge denied the motion with respect to
Specification 1. She explained “[t]he Government is
permitted to charge in the alternative as required by
exigencies of proof,” and that “[t]he judgment assessed
at the original court-martial with respect to its finding
as to [S]pecification 1 was not final, and the finding of
the original [c]ourt as to [S]pecification 1
appropriately underwent appellate review and was
appropriately referred for rehearing.”
After the military judge announced her ruling, and
following a short recess, trial counsel announced the
convening authority intended “to proceed according
with” the PTA, notwithstanding the ruling on the
motion to dismiss. Appellant entered a plea of guilty
to “the Charge and Specifications [sic].” After a
thorough providency inquiry, the military judge found
Appellant guilty of “Specification 1” and of the
Charge. No findings were entered with respect to
Specification 2.
2. Law
Double jeopardy is a question of law we review de
novo. See United States v. Driskill, 84 M.J. 248, 252
10a
(C.A.A.F. 2024) (citing United States v. Hutchins, 78
M.J. 437, 444 (C.A.A.F. 2019)).
Three prohibitions against “double jeopardy”
apply to courts-martial. United States v. Rice,
80 M.J. 36, 40 n.8 (C.A.A.F. 2020). The Double
Jeopardy Clause of the Fifth Amendment
provides: “No person shall be . . . subject for the
same offence to be twice put in jeopardy of life
or limb.” U.S. Const. amend. V. Similarly,
Article 44(a), UCMJ, provides: “No person may,
without his consent, be tried a second time for
the same offense.” And Rule for Courts-Martial
(R.C.M.) 907(b)(2)(C) requires dismissal of a
charge or specification if “[t]he accused has
previously been tried by court-martial or
federal civilian court for the same offense.”
Id. (ellipsis and alteration in original).
The United States Court of Appeals for the Armed
Forces (CAAF) has explained “[a]pplying these three
prohibitions requires multiple steps.” Id. One
question to be answered is whether the accused has
been “tried twice.” Id. This question involves
determining whether jeopardy as to a particular
offense has both “attached” and “terminated.” “[O]nce
jeopardy has attached, an accused may not be retried
for the same offense without consent once jeopardy
has terminated.” United States v. Easton, 71 M.J. 168,
172 (C.A.A.F. 2012) (footnote omitted) (citing
Richardson v. United States, 468 U.S. 317, 325
(1984)); see also United States v. McMurrin, 72 M.J.
697, 704 (N.M. Ct. Crim. App. 2013) (“A successful
double jeopardy claim, therefore, must have two
temporal components: first, that jeopardy attaches,
and second, that it terminates.” (citation omitted)).
11a
In general, “jeopardy attaches pursuant to Article
44(a), UCMJ, ‘when evidence is introduced.’” Driskill,
84 M.J. at 252 (quoting Easton, 71 M.J. at 172). As for
termination, with regard to a finding of guilty, in
general “[n]o proceeding in which an accused has been
found guilty by a court-martial upon any charge or
specification is a trial in the sense of [Article 44,
UCMJ,] until the finding of guilty has become final
after review of the case has been fully completed.” 10
U.S.C. § 844(b). “The successful appeal of a judgment
of conviction, on any ground other than the
insufficiency of the evidence to support the verdict . . .
poses no bar to further prosecution on the same
charge.” United States v. Scott, 437 U.S. 82, 90–91
(1978) (citing Burks v. United States, 437 U.S. 1, 1
(1978)). In contrast, a finding of not guilty—whether
erroneous or not—is final, may not be appealed, and
terminates jeopardy. See United States v. Martin
Linen Supply Co., 430 U.S. 564, 571 (1977); United
States v. Hardy, 46 M.J. 67, 73 (C.A.A.F. 1997); United
States v. Marcee, ARMY MISC 20210550, 2022 CCA
LEXIS 68, at *3–4 (A. Ct. Crim. App. 28 Jan. 2022)
(unpub. op.).
In addition to attachment and termination, double
jeopardy analysis requires determination “whether
the accused is truly being tried twice ‘for the same
offense.’” Driskill, 84 M.J. at 252. Military courts
generally apply the test announced in Blockburger v.
United States, 284 U.S. 303, 303–04 (1932), to
determine whether two offenses are the same for
double jeopardy purposes, whereby the elements of
each offense are compared to determine whether each
offense requires proof of at least one element the other
12a
offense does not. Driskill, 84 M.J. at 252–53. 5 The
prohibitions on double jeopardy “also ‘forbid[ ]
successive prosecution and cumulative punishment
for a greater and lesser included offense.’” Rice, 80
M.J. at 40 (quoting Brown v. Ohio, 432 U.S. 161, 169
(1977)).
Related to the prohibition on double jeopardy is the
concept of multiplicity. Multiplicity in violation of the
Double Jeopardy Clause occurs when “a court,
contrary to the intent of Congress, imposes multiple
convictions and punishments under different statutes
for the same act or course of conduct.” United States v.
Anderson, 68 M.J. 378, 385 (C.A.A.F. 2010) (emphasis
and internal quotation marks omitted) (quoting
United States v. Roderick, 62 M.J. 425, 431 (C.A.A.F.
2006)). The Government may properly charge
multiplicious specifications in the alternative in order
to “meet the exigencies of proof, . . . but if a conviction
to both [specifications] ensues, one or the other must
be dismissed.” United States v. Earle, 46 M.J. 823, 825
(A.F. Ct. Crim. App. 1997) (citation omitted).
5 The CAAF has held “that only some ‘differences are valid ones
when determining what constitutes the same offense for
purposes of a double jeopardy analysis involving Article 134,
UCMJ.’” Driskill, 84 M.J. at 253 (quoting Rice, 80 M.J. at 43).
The CAAF further noted that in Rice they
held that the Double Jeopardy Clause precluded the
[G]overnment from exploiting the unique nature of
Article 134, UCMJ, to try a servicemember by courtmartial for conduct that the [G]overnment had
previously charged as violations of Title 18 offenses in
federal civilian court “simply by removing a jurisdictional
element” and refiling the charges under clause 1 or 2 of
Article 134, UCMJ.
Id. at 256 (quoting Rice, 80 M.J. at 40–44).
13a
As charged in Appellant’s case, the elements of the
offense of distribution of child pornography
(Specification 2) include that within the continental
United States, on divers occasions between 30 August
2015 and 19 October 2017, Appellant: (1) “knowingly
and wrongfully distributed child pornography to
another,” and (2) “under the circumstances, the
conduct of [Appellant] was . . . of a nature to bring
discredit upon the armed forces.” Manual for CourtsMartial, United States (2012 ed.) (2012 MCM), pt. IV,
¶ 68b.b.(3). “‘Distributing’ means delivering to the
actual or constructive possession of another.” 2012
MCM, pt. IV, ¶ 68b.c.(3).
As charged in Appellant’s case, the elements of the
offense of possession of child pornography
(Specification 1) include that within the continental
United States, on divers occasions between 30 August
2015 and 19 October 2017, Appellant: (1) “knowingly
and wrongfully possessed . . . child pornography,” and
(2) “under the circumstances, the conduct of
[Appellant] was . . . of a nature to bring discredit upon
the armed forces.” 2012 MCM, pt. IV, ¶ 68b.b.(1).
“‘Possessing’ means exercising control of something”
and “may be direct physical custody . . . or it may be
constructive . . . .” 2012 MCM, pt. IV, ¶ 68b.c.(5).
3. Analysis
Appellant contends his re-prosecution for
Specification 1 of the Charge (wrongful possession of
child pornography) was barred by the constitutional
prohibition on double jeopardy. He argues
Specification 1 was facially multiplicious with
Specification 2 (wrongful distribution of child
pornography). Therefore, he reasons, because the
original court-martial acquitted him of wrongful
14a
distribution of child pornography, and this court’s
prior opinion expunged the guilty verdict as to the
lesser included offense of possession (as well as to the
lesser included offense of attempted distribution),
jeopardy both attached and terminated as to
Specification 1. However, we find no double jeopardy
violation.
We agree with Appellant, and the Government also
appears to agree, that Specification 1 is multiplicious
with Specification 2. Both specifications identify
identical locations and time spans for the alleged
offenses. Neither specification identifies specific files
or items constituting the child pornography in
question. Moreover, in order to “distribute” child
pornography—i.e., to deliver it to the possession of
another—it is necessary to exercise some control over
it either physically or constructively—i.e., to “possess”
it. See 2012 MCM, pt. IV, ¶¶ 68b.c.(3), (5).
However, the Government is not prohibited from
charging
multiplicious specifications in the
alternative. Earle, 46 M.J. at 825. Moreover, at his
original court-martial Appellant was convicted of the
separately charged lesser included possession offense;
he has never been acquitted of it. Jeopardy attached
as to the lesser included possession conviction when
the military judge received evidence at the original
court-martial, but it did not terminate because review
of the case was never fully completed. See 10 U.S.C. §
844(b); Driskill, 84 M.J. at 252. In his initial appeal to
this court, Appellant successfully appealed the
conviction on grounds unrelated to the sufficiency of
the evidence, which is no bar to his re-prosecution for
that offense. See Scott, 437 U.S. at 90–91. This court’s
prior opinion and remand to the convening authority
may have “expunged” the result of the original court-
15a
martial in the sense that the findings of guilty were
set aside, but not in any sense that would bar
Appellant’s re-prosecution for Specification 1 of the
Charge.
B. R.C.M. 707 Speedy Trial
1. Additional Background
a. Pre-Rehearing Processing
Appellant’s original court-martial took place at
Patrick Air Force Base, Florida, in June 2019. The
original convening command, 14th Air Force, was
redesignated as Space Operations Command (SpOC)
in December 2019. In 2021, Space Systems Command
(SSC) replaced SpOC as the general court-martial
convening authority for the host unit of what is now
Patrick Space Force Base (SFB).
On 21 July 2022, this court issued its prior opinion
setting aside the findings and sentence and returning
the record to TJAG for return to an appropriate
convening authority. Matthew, unpub. op. at *16. On
or about 15 August 2022, the Office of the Judge
Advocate General delivered this court’s opinion to the
staff judge advocate (SJA) for SpOC. The case was
subsequently referred to the commander of SSC.
On 3 October 2022, the legal office at Patrick SFB
confirmed receipt of the record of trial. On 13 October
2022, the Government notified Appellant of the
authorization for a full rehearing. The same day,
Appellant submitted a request for administrative
separation in lieu of court-martial pursuant to
Chapter 6 of the Department of the Air Force
Instruction (DAFI) 36-3211, Military Separations. On
27 October 2022, the convening authority at SSC
ordered a rehearing.
16a
On 5 December 2022, the convening authority
disapproved Appellant’s request for administrative
separation and directed the Air Force Personnel
Center (AFPC) to reassign Appellant to an active duty
unit at Patrick SFB. On 7 December 2022, AFPC
attached Appellant to a squadron at Patrick SFB and
established a report date of 6 January 2023. On 15
December 2022, the Government notified Appellant of
his recall from excess leave and permanent change of
station authorization.
Appellant demanded speedy trial on 22 December
2022.
On 20 January 2023, the convening authority
excused 95 days of delay, including the period from 3
October 2022 until 5 January 2023, for purposes of the
R.C.M. 707 speedy trial requirement.
Appellant was arraigned on 31 January 2023.
b. Defense R.C.M. 707 Motion to Dismiss
After the arraignment, the Defense moved to
dismiss the Charge and specifications for violation of
R.C.M. 707. The Defense contended the 120-day
speedy trial “clock” began on or about 15 August 2022,
when SpOC received this court’s prior opinion
authorizing a rehearing. See Matthew, unpub. op. at
*16. In addition, the Defense contended the convening
authority “abused his discretion in excusing a 95-day
delay where no special circumstance caused the
delay,” and that the “[G]overnment’s ex parte
application for approval of delay and the [c]onvening
[a]uthority’s after-the-fact excusal of the delay” were
“indicia of abuse of discretion.” Because the R.C.M.
707 clock began on 15 August 2022 and the 95-day
excusal was improper, the Defense concluded, the 120-
17a
day standard was greatly exceeded before Appellant
was arraigned on 31 January 2023.
In response, the Government argued the R.C.M.
707 speedy trial clock did not start until 3 October
2022, when the record of trial was delivered to the
legal office at Patrick SFB. Therefore, Appellant’s
arraignment on 31 January 2023 was on the 120th
day and met the R.C.M. 707 standard. The
Government further argued the convening authority’s
excusal of 95 days was reasonable and not an abuse of
discretion.
The military judge denied the motion to dismiss.
She agreed with the Government that the speedy trial
clock began to run on 3 October 2022, when the
convening authority received the record of trial;
therefore, she found, Appellant was arraigned within
120 days as required by R.C.M. 707, regardless of the
convening authority’s exclusion of time. 6 In addition,
the military judge found the convening authority
excluded time “necessary to ensure [Appellant’s]
availability for trial” in accordance with R.C.M.
707(c), implying she found no abuse of discretion.
Appellant subsequently entered a PTA with the
convening authority, agreeing to conditionally plead
guilty to the Charge and Specification 1, but
preserving appellate review of, inter alia, the military
judge’s denial of the R.C.M. 707 motion.
The military judge’s written ruling contains an apparent
typographical error. Her findings of fact erroneously refer to
Appellant being arraigned on 24 January 2023. However, the
military judge’s conclusions of law refer to Appellant’s
arraignment on the correct date, 31 January 2023. We find this
error does not substantially influence our review of this issue.
6
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2. Law
In general, “[t]he accused shall be brought to trial
within 120 days after the earlier of: [p]referral of
charges; [t]he imposition of restraint . . . ; or [e]ntry on
active duty under R.C.M. 204.” R.C.M. 707(a).
However,
[i]f a rehearing is ordered or authorized by an
appellate court, a new 120-day time period
under this rule shall begin on the date that the
responsible convening authority receives the
record of trial and the opinion authorizing or
directing a rehearing. An accused is brought to
trial within the meaning of this rule at the time
of arraignment under R.C.M. 904 or, if
arraignment is not required . . . at the time of
the first session under R.C.M. 803.
R.C.M. 707(b)(3)(D) (emphasis added). “[F]ailure
to comply with this rule will result in dismissal of the
affected charges,” with or without prejudice. R.C.M.
707(d), (1); United States v. Heppermann, 82 M.J. 794,
803 (A.F. Ct. Crim. App. 2022).
“All . . . pretrial delays approved by a military
judge or the convening authority shall be . . .
excluded” for purposes of “determining whether the
[120-day] period . . . has run.” R.C.M. 707(c); see also
United States v. Guyton, 82 M.J. 146, 151 (C.A.A.F.
2022) (quoting R.C.M. 707(c)). “[A] ‘delay’ under
R.C.M. 707 [i]s ‘any interval of time between events.’”
United States v. Proctor, 58 M.J. 792, 795 (A.F. Ct.
Crim. App. 2003) (quoting United States v. Nichols, 42
M.J. 715, 721 (A.F. Ct. Crim. App. 1995)). R.C.M. 707
does not prohibit after-the-fact approval of delays nor
ex parte requests for excludable delay. Guyton, 82 M.J.
at 151 (quoting United States v. Thompson, 46 M.J.
19a
472, 475 (C.A.A.F. 1997)); Heppermann, 82 M.J. at
803.
We review alleged R.C.M. 707 violations de novo.
Guyton, 82 M.J. at 151 (citation omitted);
Heppermann, 82 M.J. at 803 (citation omitted).
However, “[w]e give substantial deference to findings
of fact made by the military judge and will not
overturn such findings unless they are clearly
erroneous.” United States v. Fujiwara, 64 M.J. 695,
697 (A.F. Ct. Crim. App. 2007) (citations omitted). We
review a decision to approve a delay and exclude time
from the 120-day period pursuant to R.C.M. 707(c) for
an abuse of discretion. See United States v. Lazauskas,
62 M.J. 39, 41–42 (C.A.A.F. 2005). “An abuse of
discretion occurs when the trial court’s findings of fact
are clearly erroneous or if the court’s decision is
influenced by an erroneous view of the law.” United
States v. Freeman, 65 M.J. 451, 453 (C.A.A.F. 2008)
(citation omitted).
3. Analysis
The record indicates the convening authority
received the record of trial on 3 October 2022.
Therefore, in accordance with R.C.M. 707(b)(3)(D),
this marks the earliest date the 120-day speedy trial
clock would have begun to run for purposes of the
rehearing. Appellant’s arraignment occurred on 31
January 2023, exactly 120 days later. Therefore, the
Government brought Appellant to trial for purposes of
R.C.M. 707 within 120 days, and no violation of the
rule occurred.
However, Appellant contends the 120-day clock
actually began to run on 15 August 2022, the date
SpOC received this court’s opinion authorizing a
rehearing. He cites DAFI 51-201, Administration of
20a
Military Justice, ¶ 26.8 (14 Apr. 2022), 7 which
provides in part: “Receipt of decision by the SJA of the
original convening authority (or the current convening
authority if the original convening authority no longer
exists) triggers the speedy trial clock for both
rehearings on findings and rehearings on sentence
only.” Appellant argues the commander of SpOC was
the “current convening authority” when the Office of
the Judge Advocate General delivered the opinion to
SpOC, and that R.C.M. 707 does not provide that the
subsequent transfer of the case to another convening
authority “resets” the clock. Moreover, Appellant
notes DAFI 51-201, ¶ 26.8 provides the 120 days
begins to run upon receipt of the appellate decision,
without reference to delivery of the record of trial.
Appellant further contends, as he did at his courtmartial, the convening authority’s excusal of 95 days
of delay was an invalid blanket exclusion of time that
was unwarranted by the circumstances and was an
abuse of discretion. Accordingly, as the Defense
argued before the military judge, Appellant contends
the Government exceeded the 120-day R.C.M. 707
speedy trial clock, requiring the findings to be set
7 Appellant’s brief purports to cite “the current version of DAFI
51-201, para. 26.8.” Based on the paragraph reference, Appellant
appears to be referring to the 14 April 2022 version of the
instruction. However, we note that at the time Appellant
submitted his brief on 28 May 2024, a new version of DAFI 51201 had gone into effect. DAFI 51-201, Administration of
Military Justice (24 Jan. 2024). Although it was not in effect at
the times relevant to the instant appeal, we observe this newest
version of DAFI 51-201 provides at ¶ 26.9 that the speedy trial
clock begins once the responsible convening authority or a special
trial counsel, as applicable, receives both the record of trial and
the opinion authorizing or directing a rehearing.
21a
aside and the charges dismissed, with or without
prejudice.
We are not persuaded DAFI 51-201, ¶ 26.8 alters
the two R.C.M. 707(e) requirements to start the 120day clock for a rehearing. “The military has a
hierarchical scheme as to rights, duties, and
obligations,” whereby the Manual for Courts-Martial
takes precedence over service regulations. United
States v. Romano, 46 M.J. 269, 274 (C.A.A.F. 1997)
(citation omitted). To the extent a service regulation
provides additional “rights” to a servicemember, those
“rights may not conflict with a higher source.” Id.
R.C.M. 707(b)(3)(D) provides the 120-day clock for a
rehearing begins when the convening authority has
received both the appellate court decision and the
record of trial. We find DAFI 51-201, ¶ 26.8 is best
understood not as contradicting R.C.M. 707(b)(3)(D),
but as providing additional guidance as to how one of
the two criteria is to be interpreted, i.e., receipt of the
appellate decision. Specifically, DAFI 51-201, ¶ 26.8
explains the Rule’s reference to “the responsible
convening authority” means receipt by either “the
original convening authority” or, if the original
convening authority no longer exists, “the current
convening authority.” We do not understand the
meaning of the provision is to dispense with the
R.C.M. 707(b)(3)(D) requirement that the record of
trial also be received in order to start the speedy trial
clock. Cf. United States v. Kelly, 77 M.J. 404, 407
(C.A.A.F. 2018) (quoting United States v. Christian,
63 M.J. 205, 208 (C.A.A.F. 2006)) (explaining courts
“typically seek[ ] to harmonize independent provisions
of a statute”).
Because the Government initiated the rehearing
within 120 days of the commencement of the speedy
22a
trial clock on 3 October 2022, it is unnecessary to
address the convening authority’s exclusion of time.
C. Article 63, UCMJ
1. Law
Article 63, UCMJ (Manual for Courts-Martial,
United States (2016 ed.) (2016 MCM)), 8 provides that
“[u]pon a rehearing . . . no sentence in excess of or
more severe than the original sentence may be
approved.” As a general rule, “offenses on which a
rehearing . . . has been ordered shall not be the basis
for an approved sentence in excess of or more severe
than the sentence ultimately approved by the
convening or higher authority following the previous
trial or rehearing.” R.C.M. 810(d)(1). “In adjudging a
sentence not in excess of or more severe than one
imposed previously, a court-martial is not limited to
adjudging the same or a lesser amount of the same
type of punishment formerly adjudged.” United States
v. Turner, 34 M.J. 1123, 1125 (A.F.C.M.R. 1992)
(quoting R.C.M. 810(d), Discussion (Manual for
Courts-Martial, United States (1984 ed.))). “[T]he
application of the Article 63[, UCMJ,] limitation in
any case cannot be reduced to a specific formula.”
United States v. Altier, 71 M.J. 427, 428 (C.A.A.F.
2012) (citations omitted).
A general court-martial sentence that includes
confinement for more than six months, or for any
period of confinement in addition to a dishonorable or
bad-conduct discharge or dismissal, results in
forfeiture of all pay and allowances during any period
of confinement or parole. 10 U.S.C. §§ 858b(a)(1), (2).
Based on the date of the offense, the version of Article 66,
UCMJ, in the 2016 MCM applies in this case.
8
23a
2. Analysis
As described above, Appellant’s first court-martial
convicted him of one specification of wrongful
possession of child pornography on divers occasions
and one specification of attempted wrongful
distribution of child pornography on divers occasions,
in violation of Articles 134 and 80, UCMJ,
respectively. Appellant was originally sentenced to a
dishonorable discharge, confinement for 17 months,
and reduction to the grade of E-1. At his rehearing,
the military judge found Appellant guilty of one
specification of wrongful possession of child
pornography on divers occasions and sentenced him to
a bad-conduct discharge, confinement for 12 months,
forfeiture of all pay and allowances for 12 months, and
reduction to the grade of E-1.
Appellant contends the rehearing sentence
violates Article 63, UCMJ, in two respects. First, he
contends the adjudged forfeiture of all pay and
allowances for 12 months resulted in a sentence
impermissibly “in excess of” his original sentence,
which included no adjudged forfeiture of pay or
allowances. Second, Appellant contends the adjudged
12 months in confinement renders his rehearing
sentence “more severe than” his original sentence
which included 17 months of confinement because it
represented a greater percentage of the maximum
imposable term of confinement, which was only 10
years at the rehearing as compared to 30 years at the
original trial. See 2012 MCM, pt. IV, ¶¶ 4.e., 68b.e. We
address each argument in turn.
With regard to the adjudged forfeitures, we first
note Article 63, UCMJ, applies to the “sentence”
rather than to individual punishments. Moreover, the
24a
applicable precedent in this area indicates it is the
original and rehearing sentences as a whole that are
to be compared for purposes of Article 63, UCMJ,
rather than the individual sentence components. See,
e.g., Turner, 34 M.J. at 1125. For example, in Turner,
our predecessor court cited United States v. Kelley, 17
C.M.R. 259 (C.M.A. 1954), and United States v. Smith,
31 C.M.R. 181, 182 (C.M.A. 1961), for the proposition
that where the original sentence included a badconduct discharge, any punishment less severe than a
bad-conduct discharge could be adjudged at a
rehearing, regardless of the fact it had not been
imposed at the original court-martial. Turner, 34 M.J.
at 1125. It follows that forfeitures being adjudged in
the rehearing but not in the original proceeding does
not necessarily indicate a violation of Article 63,
UCMJ; a more holistic assessment of each entire
sentence is required. Notably, Appellant’s original
punishment of a dishonorable discharge was more
severe than his rehearing punishment of a badconduct discharge, see United States v. Mitchell, 58
M.J. 446, 449 (C.A.A.F. 2003), and his original
punishment of confinement for 17 months was more
severe than his rehearing punishment of confinement
for 12 months. In addition, we note the adjudged
forfeiture at the rehearing would have little or no
practical effect on Appellant, because Article 58b(a),
UCMJ, 10 U.S.C. § 858b(a), would also have had the
effect of forfeiture of all of Appellant’s pay and
allowances during his 12-month term of confinement
(or parole).
With regard to the percentages of the maximum
imposable sentences adjudged at each court-martial,
Article 63, UCMJ, prohibits a rehearing “sentence in
excess of or more severe than the original sentence.”
25a
This indicates a direct comparison of the sentences
from each proceeding. There is no “specific formula”
for determining the relative severity of sentences,
Altier, 71 M.J. at 428, to include no requirement to
calculate
relative
percentages
of
maximum
confinement terms where there has been a change in
the convicted offenses for which the accused was
sentenced. Appellant draws our attention to no case
applying such an analysis. With this understanding,
we find 12 months of confinement is in fact less severe
than 17 months of confinement.
Accordingly, we find Appellant’s rehearing
sentence to a bad-conduct discharge, confinement for
12 months, total forfeiture of pay and allowances for
12 months, and reduction to the grade of E-1 is not in
excess of or more severe than his original sentence to
a dishonorable discharge, confinement for 17 months,
and reduction to the grade of E-1 in violation of Article
63, UCMJ.
Appellant makes two related arguments that
warrant brief mention. First, he contends the SJA’s
advice to the convening authority that the latter “d[id]
not have the authority to disapprove, commute, or
suspend, in whole or in part,” Appellant’s term of
confinement was incorrect. In general, such advice is
a correct statement of the limitation on a convening
authority’s ability to modify a sentence of confinement
for more than six months. See 10 U.S.C. § 860(c)(4)(A)
(2016 MCM). However, Appellant contends such
advice was incorrect in this case because the
convening authority had an independent duty under
Article 63, UCMJ, not to approve a sentence in excess
of the one adjudged at the original court-martial. As
described above, Appellant contends his 12-month
term of confinement from the rehearing was in excess
26a
of his original 17-month term of confinement when
measured as a percentage of the maximum imposable
sentence. However, as we have determined
Appellant’s rehearing sentence did not violate Article
63, UCMJ, the convening authority had no cause to
modify the sentence on that basis. Accordingly, the
usual Article 60, UCMJ, limitations on the convening
authority applied, and Appellant is not entitled to
relief on the basis of the SJA’s advice.
Second, at the conclusion of Appellant’s argument
with respect to Article 63, UCMJ, he includes the
following: “If this Court declines to give life to the
phrase ‘more severe’ in Art[icle] 63, UCMJ, this
Honorable Court should find, for the same reasons as
above, that the sentence is inappropriate under
Article 66, UCMJ[, 10 U.S.C. § 866,] and re-assess it
to reach the same result.” Here Appellant invokes this
court’s duty to affirm only as much of the sentence as
we find correct in law and fact and determine should
be approved on the basis of the entire record. Article
66(d)(1), UCMJ, 10 U.S.C. § 866(d)(1). “We assess
sentence appropriateness by considering the
particular appellant, the nature and seriousness of
the offense[s], the appellant’s record of service, and all
matters contained in the record of trial.” United States
v. Sauk, 74 M.J. 594, 606 (A.F. Ct. Crim. App. 2015)
(en banc) (per curiam) (alteration in original) (citation
omitted).
Having given such individualized
consideration to Appellant, we conclude Appellant’s
sentence is not inappropriately severe, either in light
of the sentence originally adjudged or on any other
basis.
27a
A. Post-Trial Delay
1. Law
“[C]onvicted servicemembers have a due process
right to timely review and appeal of courts-martial
convictions.” United States v. Moreno, 63 M.J. 129,
135 (C.A.A.F. 2006) (citations omitted). In Moreno, the
CAAF established a presumption of facially
unreasonable delay “where the action of the convening
authority is not taken within 120 days of the
completion of trial,” “where the record of trial is not
docketed by the [Court of Criminal Appeals (CCA)]
within thirty days of the convening authority’s
action,” or “where appellate review is not completed
and a decision is not rendered within eighteen months
of docketing the case before the [CCA].” Id. at 142. 9
Where there is a facially unreasonable delay, we
examine the four factors set forth in Barker v. Wingo,
407 U.S. 514, 530 (1972): “(1) the length of the delay;
(2) the reasons for the delay; (3) the appellant’s
assertion of the right to timely review and appeal; and
(4) prejudice [to the appellant].” Moreno, 63 M.J. at
135 (citations omitted). The CAAF identified three
types of cognizable prejudice for purposes of an
appellant’s due process right to timely post-trial
review:
(1)
oppressive
incarceration;
(2)
“particularized” anxiety and concern “that is
9 In United States v. Livak, 80 M.J. 631 (A.F. Ct.
Crim. App.
2020), this court adapted the Moreno thresholds for facially
unreasonable delay to the new post-trial processing regime that
went into effect in 2019. Specifically, Livak established an
aggregated 150-day standard for facially unreasonable delay
from sentencing to docketing with the CCA for cases referred to
trial on or after 1 January 2019. Id. at 633. However, the original
Moreno standards apply in Appellant’s case.
28a
distinguishable from the normal anxiety experienced
by prisoners awaiting an appellate decision;” and (3)
impairment of the appellant’s grounds for appeal or
ability to present a defense at a rehearing. Id. at 138–
40 (citations omitted). Where there is no qualifying
prejudice from the delay, there is no due process
violation unless the delay is so egregious as to
“adversely affect the public’s perception of the fairness
and integrity of the military justice system.” United
States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006).
We review de novo an appellant’s entitlement to
relief for post-trial delay. United States v. Livak, 80
M.J. 631, 633 (A.F. Ct. Crim. App. 2020) (citing
Moreno, 63 M.J. at 135).
2. Analysis
Appellant contends he is “due relief for post-trial
delay,” citing the 18-month Moreno standard for
facially unreasonable appellate delay. See Moreno, 63
M.J. at 142. He specifies four particular periods of
delay which he contends are the responsibility of
either the Government or of this court. First,
Appellant cites “the [G]overnment’s loss of the record
of trial,” referring to the court reporter’s loss of the
audio recording of the arraignment of his original
court-martial, which ultimately resulted in this court
setting aside the findings and sentence from that
proceeding. Second, Appellant cites the lapse of time
from when his original court-martial was initially
docketed with this court on 23 October 2019 until it
issued its prior opinion on 21 July 2022. Third,
Appellant cites the delay between this court’s return
of the record to TJAG and his arraignment for the
rehearing on 31 January 2023, addressed in more
detail in our analysis of the alleged violation of R.C.M.
29a
707 supra. Fourth, Appellant cites the delay between
his rehearing sentencing on 30 May 2023 and the
docketing of the record with this court on 28 March
2024. Appellant does not allege any specific prejudice
from the delays he cites.
As an initial matter, we note Appellant appears to
analyze the entire period of time from his original
sentencing on 20 June 2019 onward as one extended
post-trial period to be measured against the Moreno
standards for facially unreasonable delay, and in
particular the 18-month appellate delay standard. We
disagree. In Moreno, the CAAF stated it would “apply
a presumption of unreasonable delay where appellate
review is not completed and a decision is not rendered
within eighteen months of docketing the case before
the [CCA].” Id. This court previously rendered a
decision on Appellant’s appeal of his original courtmartial, which resolved in his favor one of the issues
he had raised to this court. Matthew, unpub. op. at
*16. Therefore, we find there are two distinct posttrial and appellate periods for purposes of our Moreno
analysis.
First we consider the post-trial and appellate delay
preceding this court’s prior opinion. The original
convening authority took action on the sentence on 13
October 2019, less than 120 days from sentencing, and
the record was docketed with this court on 23 October
2019, less than 30 days from action. Accordingly, there
was no facially unreasonable post-trial delay at that
point under Moreno, 63 M.J. at 142. However, this
court did exceed the 18-month Moreno standard for
appellate delay. 10 Because Appellant has not alleged
10 We assume for purposes of our analysis that this court’s order
23 December 2020 order returning the record to TJAG for
30a
qualifying prejudice under Moreno, and because we
find none, a due process violation would exist only if
the delay was so egregious as to negatively affect
public perception of the fairness and integrity of the
military justice system. Toohey, 63 M.J. at 362. We
find it was not so egregious. Several factors contribute
to this conclusion, including but not limited to the
following. Appellant moved for and was granted eight
enlargements of time in which to file his assignments
of error. According to the defense filings, Appellant
was released from confinement prior to the sixth
motion for enlargement of time, submitted on 12 June
2020, well before he even submitted his original
assignments of error. Accordingly, at no point has
Appellant suffered oppressive incarceration as a
result of appellate delay. In addition, over two months
of delay was attributable to this court returning the
record in an effort to correct the incomplete transcript;
although this delay was not attributable to Appellant,
remand was a reasonable measure to address a
deficiency specifically raised by the Defense.
Furthermore, this court’s opinion set aside the
findings and sentence in their entirety, leaving no
sentence against which to award relief.
The next period of delay Appellant cites—the delay
between this court’s return of the record to TJAG and
Appellant’s arraignment for the rehearing—is not in
fact a period of post-trial delay. At that point,
Appellant’s first appeal had been resolved in his favor,
and his case was then in a pretrial posture preceding
his rehearing. Delays during this phase are properly
evaluated in light of pretrial speedy trial
corrective action was not a “decision” on the case within the
meaning of Moreno, 63 M.J. at 142.
31a
requirements, such as the alleged R.C.M. 707
violation Appellant raised separately which we
analyzed supra, rather than under Moreno.
Accordingly, we find no violation of Appellant’s right
to timely post-trial and appellate review on this basis.
Turning to the delay following Appellant’s
rehearing, Appellant was sentenced for a second time
on 30 May 2023, and the convening authority took
action on the rehearing 248 days later on 2 February
2024. This period significantly exceeded the 120-day
Moreno standard for a facially unreasonable delay. In
addition, Appellant’s record was docketed with this
court on 28 March 2024, 55 days after the convening
authority took action, which exceeds the 30-day
Moreno standard. Accordingly, we have considered
the four Barker factors; but once again, because
Appellant has not identified any cognizable prejudice
and we perceive none, no due process violation exists
unless the delay was so egregious as to impugn the
fairness and integrity of the military justice system.
Toohey, 63 M.J. at 362. As reasons contributing to the
delay, the Government cites low paralegal manning in
the servicing legal office; a complicated earlier courtmartial that took priority in post-trial processing over
Appellant’s rehearing; and 61-day delay in delivering
the record of trial to civilian trial defense counsel’s
overseas location due to armed conflict in the region.
Although these cited reasons do not provide a
complete or convincing explanation for the facially
unreasonable delays, in the absence of prejudice to
Appellant we do not find the delay so egregious as to
constitute a due process violation.
Furthermore, recognizing our authority under
Article 66, UCMJ, we have also considered whether
relief for excessive post-trial delay is appropriate in
32a
this case even in the absence of a due process
violation. See United States v. Tardif, 57 M.J. 219, 225
(C.A.A.F. 2002). After considering the factors
enumerated in United States v. Gay, 74 M.J. 736, 744
(A.F. Ct. Crim. App. 2015), aff’d, 75 M.J. 264 (C.A.A.F.
2016), we conclude no such relief is warranted.
E. Incomplete Record
1. Additional Background
Upon reviewing the record, this court noted an
apparent omission in the record the parties did not
identify. At one point in the court-martial, trial
counsel offered for the record Appellate Exhibit (AE)
XI, the Government’s response to the Defense’s
motion to dismiss the Charge and specification for the
alleged R.C.M. 707 violation, which we have analyzed
supra. After some initial confusion and clarification by
the military judge, trial counsel identified AE XI as a
27-page document, including 21 pages of attachments.
However, the version of AE XI contained in the
original record consists of only the six-page
government response, which lists nine attachments
that are not included.
On 30 September 2024, this court issued an order
to the Government to “show good cause as to why this
court should not remand the record for correction
under [R.C.M.] 1112(d), or take other corrective
action.” In response, the Government moved to attach
a 1 October 2024 declaration from the superintendent
of the Patrick SFB legal office with an electronic
version of what he asserts to be the 27-page version of
AE XI, including the attachments. The declaration
states this version was provided via email to the
Government Trial and Appellate Operations Division
on 1 October 2024. The Government’s response to the
33a
show cause order asserts “there is no utility in
returning the record for correction” at this point
because this court can now review the missing
attachments and “assess whether Appellant was
prejudiced by their omission.” The Government
further contends additional “delay is unnecessary in
this case especially considering Appellant alleged
unreasonable post-trial delay in his assignments of
error.” Appellant did not oppose the Government’s
motion to attach or otherwise respond to the
Government’s response to the show cause order. This
court granted the Government’s motion to attach
2. Law
A complete record of the proceedings, including all
exhibits, must be prepared for any general courtmartial that results in a punitive discharge or more
than six months of confinement. Article 54(c)(2),
UCMJ, 10 U.S.C. § 854(c)(2); see also R.C.M.
1112(b)(6) (providing the record of trial shall include
all exhibits). Whether a record of trial is complete is a
question of law we review de novo. United States v.
Davenport, 73 M.J. 373, 376 (C.A.A.F. 2014) (citation
omitted).
“[A] substantial omission renders a record of trial
incomplete and raises a presumption of prejudice that
the [G]overnment must rebut.” United States v.
Harrow, 62 M.J. 649, 654 (A.F. Ct. Crim. App. 2006)
(citation omitted), aff’d, 65 M.J. 190 (C.A.A.F. 2007).
However, “[i]nsubstantial 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.
2000) (holding that four missing prosecution exhibits
were insubstantial omissions when other exhibits of
34a
similar sexually explicit material were included). We
approach the question of what constitutes a
substantial omission on a case-by-case basis. United
States v. Abrams, 50 M.J. 361, 363 (C.A.A.F. 1999)
(citation omitted). “In assessing either whether a
record is complete . . . the threshold question is
‘whether the omitted material was “substantial,”
either qualitatively or quantitatively.’” Davenport, 73
M.J. at 377 (quoting United States v. Lashley, 14 M.J.
7, 9 (C.M.A. 1982)) (additional citation omitted).
“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.’” Id. (omission
in original) (quoting United States v. Nelson, 13
C.M.R. 38, 43 (C.M.A. 1953))
3. Analysis
We begin with a clarification of the significance of
this court granting the Government’s motion to attach
the declaration and purported correct version of AE
XI. As we explained in similar circumstances in
another case:
We understand this to mean that we can
consider the [attached matter] in deciding
whether the Government has rebutted the
presumption of prejudice on appeal. To be clear,
we are not holding that the record of trial is now
complete . . . . If the Government sought to
make the record of trial complete, it should
have requested our court order a certificate of
correction.
United States v. King, No. ACM 39583, 2021 CCA
LEXIS 415, at *29 (A.F. Ct. Crim. App. 16 Aug. 2021)
(unpub. op.), aff’d, 83 M.J. 115 (C.A.A.F. 2023).
35a
In the instant case, we find the omission was
substantial. The missing attachments presumably
formed part of the basis for the military judge’s
findings of fact in her ruling on the R.C.M. 707 motion
to dismiss, which was itself significant for our analysis
of Appellant’s assignment of error. However, we find
the presumption of prejudice has been rebutted under
the circumstances of this case. The facts that control
our resolution of the R.C.M. 707 issue—notably
including inter alia that the record of trial was
delivered to Patrick SFB on 3 October 2022—are
established by other exhibits in the record.
Accordingly, we are able to complete our Article 66,
UCMJ, review, and Appellant has not been prejudiced
by the omission.
F. Court-Martial Order
The 2 February 2024 court-martial order
promulgating the results of the rehearing contains an
error. The order incorrectly indicates Appellant
pleaded “not guilty” to Specification 2 of the Charge,
which was subsequently “Withdrawn and Dismissed
with Prejudice.” As described supra in relation to
Appellant’s assertion of double jeopardy, the military
judge dismissed Specification 2 with prejudice prior to
Appellant entering his pleas. Appellant did not enter
a plea of “not guilty,” and the specification was not
“withdrawn.” Accordingly, we direct correction of the
court-martial order in our decretal paragraph.
III. CONCLUSION
We direct publication of a new court-martial order
with the following corrections with regard to
Specification 2 of the Charge: for the “Plea,” delete
“NG” and replace with “None;” and for the “Finding,”
delete “Withdrawn and Dismissed with Prejudice”
36a
and replace with “Dismissed with Prejudice.” The
findings and sentence as approved are correct in law
and fact, and no error materially prejudicial to the
substantial rights of Appellant occurred. Articles
59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c)
(2016 MCM). Accordingly, the findings and sentence
are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
37a
UNITED STATES AIR FORCE COURT OF
CRIMINAL APPEALS
________________________
No. ACM 39796 (f rev)
________________________
UNITED STATES
Appellee
v.
Maxwell A. MATTHEW
Staff Sergeant (E-5), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial
Judiciary
Upon Further Review
Decided 21 July 2022
________________________
Military Judge: Shaun S. Speranza (arraignment); 1
Bryon T. Gleisner.
Approved
sentence:
Dishonorable
discharge,
confinement for 17 months, and reduction to E-1.
Sentence adjudged on 20 June 2019 by GCM convened
at Patrick Air Force Base, Florida.
For Appellant: Major Amanda E. Dermady, USAF;
Robert Feldmeier, Esquire.
For Appellee: Lieutenant Colonel Brian C. Mason,
USAF; Lieutenant Colonel Matthew J. Neil, USAF;
1 Judge Speranza is identified as the detailed military judge for
Appellant’s arraignment in a memorandum dated 22 January
2019. We explain the significance of this memorandum later in
this opinion.
38a
Major Alex B. Coberly, USAF; Mary Ellen Payne,
Esquire.
Before JOHNSON, RICHARDSON, and CADOTTE,
Appellate Military Judges.
Judge CADOTTE delivered the opinion of the court, in
which Chief Judge JOHNSON joined. Judge
RICHARDSON filed a separate dissenting opinion.
________________________
This is an unpublished opinion and, as such,
does not serve as precedent under AFCCA Rule
of Practice and Procedure 30.4.
________________________
CADOTTE, Judge:
A military judge sitting as a general court-martial
convicted Appellant, in accordance with his pleas, of
one specification of wrongful possession of child
pornography on divers occasions in violation of Article
134, Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 934; and one specification of attempt to
distribute child pornography on divers occasions in
violation of Article 80, UCMJ, 10 U.S.C. § 880. 2,3 The
2 All references to the punitive articles of the UCMJ are to the
Manual for Courts-Martial, United States (2012 ed.). Unless
otherwise noted, all other references to the UCMJ and Rules for
Courts-Martial (R.C.M.) are to the Manual for Courts-Martial,
United States (2016 ed.).
3 Appellant was charged with one specification of wrongful
distribution of child pornography in violation of Article 134,
UCMJ, but entered a plea of guilty to the lesser included offense
of attempt to distribute child pornography in violation of Article
80, UCMJ. After the Government informed the military judge of
its intent to not go forward with proof on the greater offense, the
military judge found Appellant not guilty of the wrongful
39a
military judge sentenced Appellant to a dishonorable
discharge, confinement for 17 months, and reduction
to the grade of E-1. 4
Appellant’s case is before us for the second time.
Appellant raised two assignments of error, one of
which asserts the record of trial is incomplete. During
our initial review of this case, we determined that the
transcript for Appellant’s arraignment was missing
from the record of trial. As a result, pursuant to Rule
for Courts-Martial (R.C.M.) 1104(d)(1), we returned
the record of trial to the convening authority with
direction to return it to the military judge who
presided at Appellant’s court-martial and was present
at the end of the proceedings, for action consistent
with R.C.M. 1104(d). See United States v. Matthew,
No. ACM 39796, 2020 CCA LEXIS 486, at *2 (A.F. Ct.
Crim. App. 23 Dec. 2020) (order). That judge was to
determine whether the judge who presided over
Appellant’s arraignment could authenticate the
arraignment transcript or whether a substitute
authentication may be completed under R.C.M.
1104(a)(2)(B). Id. at *3–4. On 4 March 2021, the
Government returned the record of trial without
correction, stating, “An authenticated transcript of
distribution of child pornography in violation of Article 134,
UCMJ, 10 U.S.C. § 934, but guilty in accordance with his plea.
4 The convening authority deferred all mandatory forfeitures and
reduction in grade from 14 days after the sentence was adjudged
until date of action, pursuant to Article 57, UCMJ, 10 U.S.C. §
857. The convening authority also waived mandatory forfeitures
for a period of six months, or release from confinement or
expiration of term of service, whichever is sooner, from 14 days
after sentence was adjudged to be paid to Appellant’s spouse for
the benefit of his children, pursuant to Article 58b, UCMJ, 10
U.S.C. § 858b.
40a
Appellant’s arraignment cannot be obtained because
the audio recording of the hearing has been lost and
no alternatives can be located.” The case was then
redocketed with this court.
We now turn to Appellant’s assignments of error:
(1) whether Appellant’s plea to attempted distribution
of child pornography was not provident because
Appellant did not disclose specific intent; and (2)
whether the record of trial is incomplete. We do not
reach a decision on the first issue as a result of our
resolution of the second. We find the record of trial is
not verbatim. Consequently, we set aside the findings
and sentence and return the case to The Judge
Advocate General for return to an appropriate
convening authority for action consistent with R.C.M.
1103(f).
I. BACKGROUND
At his court-martial, Appellant pleaded guilty to
possessing and attempting to distribute child
pornography on divers occasions between on or about
30 August 2015 and 19 October 2017 while stationed
at Barksdale AFB, Louisiana, and Patrick AFB. On
22 January 2019, Judge Speranza, the Chief Circuit
Military Judge for the Eastern Circuit, issued a
memorandum with the subject of “Confirmation of
‘Arraignment and Initial Trial Dates.’” In the
memorandum, Judge Speranza detailed himself to the
arraignment set to take place on 25 January 2019, and
detailed Judge Gleisner to preside over the trial. This
is the only document in the record that refers to Judge
Speranza.
The ROT does not include a session on 25 January
2019 containing Appellant’s arraignment. Appellate
Exhibit I, a scheduling order containing a summary of
41a
an R.C.M. 802 scheduling conference on 25 January
2019, indicates the parties and Judge Gleisner
discussed, inter alia, “Arraignment. (25 Jan 19),”
“Expected Motions. (IAW scheduling order),” and
“Expected Pleas and Forum. (TBD).” At trial on
19 June 2019, Judge Gleisner engaged in the
following colloquy with Appellant regarding
Appellant’s arraignment:
MJ: You were previously arraigned on 25
January 2019. Do you recall that [Appellant]?
[Appellant]: Yes, Your Honor[.]
MJ: And at that time your rights to counsel
were explained to you. Would you like me to readvise you of your rights to counsel?
[Appellant]: No, Your Honor.
MJ: Do you have any questions about your
rights to counsel?
[Appellant]: No, Your Honor.
MJ: And by whom do you wish to be
represented?
[Appellant]: Major [K], Mr. [S] and Mr. [G].
MJ: And by them alone?
[Appellant]: Yes, Your Honor.
....
MJ: And [Appellant], I’m going to go ahead and
talk to you a little bit about your forum rights.
Your forum rights were explained to you during
the 25 January 2019 arraignment. Would you
like me to re-advise you of your forum rights?
[Appellant]: No, Your Honor.
42a
MJ: Excuse me?
[Appellant]: No, Your Honor.
MJ: Thank you.
So, do you understand the choices that you had
with your regards to forum?
[Appellant]: Yes, Your Honor.
MJ: And by which type of court do you wish to
be tried?
[Appellant]: By judge alone, Your Honor.
In its response to Appellant’s assignments of error,
the Government requested that if this court is inclined
to find prejudicial error, we should return the record
“to the convening authority for appropriate action
under R.C.M. 1104(d).” On 23 December 2020, this
court ordered the ROT be “returned to the convening
authority, who will return it to the military judge who
presided at Appellant’s court-martial and was present
at the end of the proceedings, for action consistent
with R.C.M. 1104(d).” It was further ordered that “[i]f
authentication of the arraignment transcript cannot
be obtained, the ROT will be returned to our court
with an explanation from the Government as to why
it cannot comply with this order.”
On 14 January 2021, in compliance with this
court’s order, the Government provided notice stating,
“An authenticated transcript of Appellant’s
arraignment cannot be obtained because the audio
recording of the hearing has been lost and no
alternatives can be located.” We now address the issue
of the missing arraignment transcript.
During Appellant’s court-martial Judge Gleisner
never addressed or acknowledged that the audio
43a
recording of the 25 January 2019 hearing was lost. It
does not appear that Judge Gleisner was aware that
the audio recording was lost, and he did not attempt
to take any corrective actions.
II. DISCUSSION
Appellant asserts that the record of trial (ROT) is
incomplete because it “contains omissions of the
transcript of at least one [Article 39(a), UCMJ, 10
U.S.C. § 839(a),] session, containing Appellant’s
arraignment.” Appellant further argues that “if the
[ROT] cannot be made accurate, the only appropriate
remedy is for this [c]ourt to affirm only a nonverbatim
record sentence and disapprove Appellant’s punitive
discharge and adjudge only six months confinement.”
In support of his argument Appellant cites the version
of R.C.M. 1114(a) found in the Manual for CourtsMartial, United States (2019 ed.) (2019 MCM). 5
During our initial review of this case, we determined
that the transcript for Appellant’s arraignment was
missing from the ROT. We ordered the ROT returned
to the convening authority for correction; however
none was made. As the record has not been corrected,
we find the record to be substantially nonverbatim.
5 Appellant’s reference to the version of R.C.M. 1114(a) in the
2019 MCM is inapposite because the charge was referred to
general court-martial on 20 December 2018. See Executive Order
13825, § 3(d) (8 Mar. 2018):
Except as otherwise provided in this order, the [Military
Justice Act of 2016] shall not apply in any case in which
charges are referred to trial by court-martial before
January 1, 2019. Except as otherwise provided in this
order, proceedings in any such case shall be held in the
same manner and with the same effect as if the MJA had
not been enacted.
44a
We agree with Appellant that the ROT is
incomplete and that it constitutes a nonverbatim
record. However, we disagree with Appellant as to the
appropriate remedy. Instead, we set aside the findings
and sentence and return the case to The Judge
Advocate General for return to an appropriate
convening authority for action consistent with R.C.M.
1103(f) as stated in the decretal paragraph.
A. Law
Whether a transcript is verbatim, and a
trial record complete, are questions of law we review
de novo. United States v. Davenport, 73 M.J. 373, 376
(C.A.A.F. 2014) (citation omitted). “The requirement
that a record of trial be complete and substantially
verbatim in order to uphold the validity of a
verbatim record sentence is one of jurisdictional
proportion that cannot be waived.” United States v.
Henry, 53 M.J. 108, 110 (C.A.A.F. 2000) (citation
omitted).
A complete record of the proceedings and
testimony shall be prepared in each general courtmartial where the adjudged sentence includes, inter
alia, a discharge or, if the adjudged sentence does not
include a discharge, any other sentence which exceeds
that which may be adjudged at a special courtmartial. Article 54, UCMJ, 10 U.S.C. § 854. “[T]he
record of trial shall include a verbatim transcript of
all sessions except sessions closed for deliberations
and voting when: [ ] the sentence adjudged includes
confinement for twelve months or more or any
punishment that may not be adjudged by a special
court-martial; or [ ] [a] bad-conduct has been
adjudged.” R.C.M. 1103(b)(2)(B); see United States v.
Gaskins, 72 M.J. 225, 230 (C.A.A.F. 2013).
45a
R.C.M. 1103(f), Loss of notes or recordings of
proceedings, states:
If, because of loss of recordings or notes, or
other reasons, a verbatim transcript cannot be
prepared when required by subsection (b)(2)(B)
or (c)(1) of this rule, a record which meets the
requirements of subsection (b)(2)(C) of this rule
shall be prepared, and the convening authority
may:
(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.
R.C.M. 1104(d)(2), Procedure, states:
An authenticated record of trial believed to be
incomplete or defective may be returned to the
military judge or summary court-martial for a
certificate of correction. The military judge or
summary court-martial shall give notice of the
proposed correction to all parties and permit
them to examine and respond to the proposed
correction before authenticating the certificate
of correction. All parties shall be given
46a
reasonable access to any original reporter’s
notes or tapes of the proceedings.
R.C.M. 904 states in its entirety that an
“[a]rraignment shall be conducted in a court-martial
session and shall consist of reading the charges and
specifications to the accused and calling on the
accused to plead. The accused may waive the reading.”
(Emphasis added).
Whether an omission from a record of trial is
substantial is a question of law we review de novo.
United States v. Stoffer, 53 M.J. 26, 27 (C.A.A.F.
2000). “Verbatim” for the purposes of a court-martial
transcript does not mean word for word, but that the
transcript be substantially verbatim. Davenport, 73
M.J. at 377 (quoting United States v. Lashley, 14 M.J.
7, 8 (C.M.A. 1982)). “[T]he threshold question is
whether the omitted material was substantial, either
qualitatively or quantitatively.” Id. (internal
quotation marks omitted) (quoting 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.’” Id.
(alteration in original) (quoting United States v.
Nelson, 3 C.M.A. 482, 13 C.M.R. 38, 43 (C.M.A. 1953)).
We must approach the question of what constitutes a
substantial omission on a case-by-case basis. United
States v. Abrams, 50 M.J. 361, 363 (C.A.A.F. 1999)
(citation omitted).
Nonverbatim transcript errors are not tested for
prejudice:
if there is not a verbatim transcript, there is
also no “complete record.” R.C.M. 1103(b)(2)(D).
However, while in the case of most incomplete
47a
records prophylactic measures are not
prescribed, and the missing material or remedy
for same are tested for prejudice, where the
record is incomplete because the transcript is
not verbatim, the procedures set forth in
R.C.M. 1103(f) control.
Davenport, 73 M.J. at 377 (citation omitted).
“If a military judge fails to cure a substantial
omission and a nonverbatim transcript results,
R.C.M. 1103(f)[ ] is triggered and the remedy lies
within the sole discretion of the convening authority.”
United States v. Tate, __ M.J. __, No. 21-0235, 2022
CAAF LEXIS 381, at *21 (C.A.A.F. 23 May 2022).
B. Analysis
The military judge’s sentence which includes a
dishonorable discharge and confinement for 17
months requires that the transcript be verbatim.
R.C.M. 1103(b)(2)(B). In order for the transcript to be
verbatim, it must include “all proceedings including
sidebar conferences, arguments of counsel, and
rulings and instructions by the military judge.”
R.C.M. 1103(b), Discussion; see also Tate, 2022 CAAF
LEXIS 381, at *8. After our initial review, we granted
the Government’s requested relief and returned the
record for correction. The record was returned to us
with the Government’s explanation the record could
not be corrected for the reason stated above. As a
result, the transcript before us does not include the
initial Article 39(a), UCMJ, session, arraigning the
Appellant on 25 January 2019. While the record
contains references to this initial Article 39(a) session,
this initial session is missing from the record. The
record before us does not include Appellant being
advised of his right to counsel or forum rights, R.C.M.
48a
903(a), as he declined to be re-advised of those rights
by Judge Gleisner.
Considering the threshold question—whether the
omitted material was qualitatively or quantitatively
substantial—we find the omission resulting from the
lost audio recording to be quantitatively substantial.
See Tate, 2022 CAAF LEXIS 381, at *8–9 (citations
omitted). The omission is not “so unimportant and so
uninfluential when viewed in the light of the
whole record, that it approaches nothingness.”
Davenport, 73 M.J. at 377 (quoting Nelson, 3 C.M.A.
at 486). The omitted matter includes the arraignment,
which is a significant event in the progress of a courtmartial with certain requirements. See R.C.M.
707(b)(1); R.C.M. 904; United States v. Doty, 51 M.J.
464, 465 (C.A.A.F. 1999). In addition, we are unable
to review the sufficiency of Appellant’s advisement of
his rights to counsel and forum selection, as well as
any other matters that might have arisen in the 25
January 2019 Article 39(a) session.
The Government argues that even if it is assumed
that the transcript in this case is not substantially
verbatim, then the Government may rebut a
presumption of prejudice. The Government’s answer
contends there is an “absence of any presumed or
actual prejudice” to Appellant. As we have determined
the record is incomplete because the transcript is not
verbatim, contrary to the Government’s argument, we
do not test for prejudice, and “the procedures set forth
in R.C.M. 1103(f) control.” Davenport, 73 M.J. at 377
(citation omitted).
Our esteemed dissenting colleague contends that
“had the trial judge in Appellant’s case known that the
initial Article 39(a) session would not be transcribed,
49a
his reference to that session and his repetition of what
commonly transpires at such a session could be
considered a combination of two remedial actions:
reconstruction and ‘starting anew.’” We do not find the
trial judge took any action which qualifies as remedial
action, let alone, a combination of remedial actions.
Unlike our colleague, we do not find the missing
Article 39(a) session was reconstructed when
Appellant agreed with Judge Gleisner that he had
been arraigned. See Tate, 2022 CAAF LEXIS 381, at
*12. Appellant’s acknowledgement of his arraignment
falls significantly short of a reconstruction of the
record. Appellant’s responses fail to contain the level
of detail necessary to reconstruct the record as we are
left with significant questions as to the parties
present, and the duration and content of the missing
Article 39(a) session. It is not surprising that Judge
Gleisner’s questioning of Appellant lacks sufficient
detail to reconstruct the record as he was unaware
that anything was amiss with the record.
Likewise, if we assume “starting anew” was an
available remedy, we do not find, as our colleague
does, Judge Gleisner “started anew.” See Id. at *13–
14. Contrary to any apparent intent to “start anew,”
Judge Gleisner relied upon advisements to Appellant
which occurred in a previous Article 39(a) session and
he did not fully re-advise Appellant of his various
rights. We also find it significant that Judge Gleisner
did not express he was disregarding the initial Article
39(a) session and starting the trial over from the
beginning. In order to “start anew,” a military judge
must, at a minimum, announce he is calling the
judicial equivalent of a mulligan. See id. Judge
Gleisner never expressed he was taking remedial
action in the form of reconstruction or “starting anew”
50a
to account for the lost recording. Unlike our colleague,
we do not find the record supports recasting what took
place at trial as remedial action.
When faced with the loss of a recording which
prevents the preparation of a verbatim transcript,
under the state of the law reflected in the 2016
Manual for Courts-Martial and applicable in this case,
a convening authority enters into a catch-22 scenario.
The Court of Appeals for the Armed Forces (CAAF)
recently addressed this conundrum in Tate. 2022
CAAF LEXIS 381, at *21–23. After finding a
nonverbatim transcript, resulting from the failure of
the court’s recording device during the appellant’s
sentencing hearing, was not properly remedied, the
CAAF stated:
Despite the discretionary language of R.C.M.
1103(f) (2016 ed.), Article 60(c)(4)(A), UCMJ, 10
U.S.C. § 860(c)(4)(A) (2012 & Supp. IV 20132017) presents a procedural limitation. Article
60(c)(4)(A), UCMJ, states, “the convening
authority . . . may not disapprove, commute, or
suspend in whole or in part an adjudged
sentence of confinement for more than six
months or a sentence of dismissal, dishonorable
discharge, or bad conduct discharge.” As a
result, we set aside Appellant’s sentence and
remand to [T]he Judge Advocate General of the
Army for return to an appropriate convening
authority for action consistent with R.C.M.
1103(f) (2016 ed.).
Id. at *22–23; see also United States v. Steele, ARMY
20170303, 2019 CCA LEXIS 95 (A. Ct. Crim. App. 5
Mar. 2019) (unpub. op.) (setting aside the sentence
and returning the record for action consistent with
51a
R.C.M. 1103(f) due to substantial omission from the
verbatim record during sentencing proceedings).
The nonverbatim transcripts in Tate and Steele
were limited to the sentencing phase of the trial.
However, when faced with a nonverbatim record
resulting from an omission that affected findings, in
addition to sentencing, our sister court set aside all of
the findings of guilty and the sentence before
returning the case to the convening authority for
action consistent with R.C.M. 1103(f)(2). United
States v. Bruner, ARMY 20190276, 2020 CCA LEXIS
267, *8–9 (A. Ct. Crim. App. 12 Aug. 2020) (unpub.
op.), rev. denied, ___ M.J. ___, No. 22-0053, 2022
CAAF LEXIS 308 (C.A.A.F. 26 Apr. 2022). We are
similarly faced with an omission which is not limited
to the sentencing proceedings. Considering the
circumstances in this case, we find the appropriate
remedy is to set aside the findings and sentence and
return to the case to The Judge Advocate General for
return to an appropriate convening authority for
action consistent with R.C.M. 1103(f).
III. CONCLUSION
The findings and sentence are SET ASIDE. The
record of trial is returned to The Judge Advocate
General for return to an appropriate convening
authority for action consistent with R.C.M. 1103(f).
RICHARDSON, Judge (dissenting):
I disagree with my esteemed colleagues in the
majority that the transcript in this case is not
substantially verbatim. I would find the military
judge effectively remedied the omission. Therefore, I
respectfully dissent.
52a
I. DISCUSSION
A. Substantial Omission
1. Law
“In assessing either whether a record is complete
or whether a transcript is verbatim, the threshold
question is ‘whether the omitted material was
substantial, either qualitatively or quantitatively.’”
United States v. Davenport, 73 M.J. 373, 377 (C.A.A.F.
2014) (citation omitted) (quoting United States v.
Lashley, 14 M.J. 7, 9 (C.M.A. 1982)).
When the record is incomplete due to a
nonverbatim record, we do not test for prejudice; “the
procedures in R.C.M. 1103(f) control.” Id.
(citing United States v. Gaskins, 72 M.J. 225, 230–31
(C.A.A.F. 2013)). 1
2. Background and Analysis
We do not know with certainty whether the initial
Article 39(a), UCMJ, 10 U.S.C. § 839(a), session of
Appellant’s court-martial was ever recorded. We know
from reviewing the record that this session was not
transcribed and made part of the record of trial, and
the Government has failed to cure this deficiency. 2
1 Rule for Courts-Martial (R.C.M.) 1103(f) placed limits on the
scope of a sentence the convening authority could approve in a
case with a non-verbatim transcript. See Manual for CourtsMartial, United States (2016 ed.). R.C.M. 1103 was revised and
renumbered R.C.M. 1112; those changes apply to cases with
offenses referred after 1 January 2019, so do not apply to
Appellant’s case. See Executive Order 13,825, § 5, 83 Fed. Reg.
9889 (8 Mar. 2018). Notably, the limitations in R.C.M. 1103(f) are
no longer present. See Manual for Courts-Martial, United States
(2019 ed.).
2 I come to this conclusion even though the record of trial includes
documents indicating that on 20 September 2019, the assistant
53a
Without the transcript of the initial Article 39(a)
session we do not know: who besides Appellant and a
military judge was present; who Appellant wanted to
represent him at the arraignment; and whether any
parties were qualified, certified, and sworn. Those are
important facts to state for the record, but they are
insubstantial in this context. I conclude that the
omission of a transcript of the initial Article 39(a)
session was not substantial and was remedied by the
trial judge.
The record indicates that on 25 January 2019, at
the initial Article 39(a) session: (1) Appellant was
advised of his rights to counsel; (2) Appellant was
advised of his forum rights; (3) Appellant deferred
entry of pleas; (4) Appellant deferred entry of forum;
(5) no exhibits were admitted; 3 and (6) Appellant was
arraigned. The same day as the arraignment, the trial
judge held a conference with counsel to discuss
expected issues in the case, and summarized this
conference in Appellate Exhibit I, his scheduling
order. In this order, the trial judge set due dates for
motions and other milestones. Neither at this
conference nor at trial did Appellant or the
Government refer to anything else of substance
occurring at this initial Article 39(a) session. The
charge sheet in this case was not amended in any way.
trial counsel certified that he reviewed the transcript in this case
and “determine[d] it to be accurate and complete;” and on
27 September 2019, the trial judge “authenticate[d] the Record
of Trial in accordance with [R.C.M.] 1104.”
3 All appellate, prosecution, and defense exhibits in the record of
trial were marked, offered, or admitted during the court-martial
beginning in June 2019, and those exhibits are identified
consecutively beginning with “I,” “1,” and “A,” respectively.
54a
During the initial trial Article 39(a) session, the
Government announced the convening orders—and
asserted they would be inserted at that point in the
record; that the charges were properly referred to the
court for trial and were served on Appellant on
16 January 2019; the five-day statutory waiting
period had expired; who was present; who detailed
trial counsel and assistant trial counsel; whether trial
counsel and assistant trial counsel were qualified,
certified, and sworn; and that no member of the
Prosecution had acted in any manner which might
tend to disqualify them in the court-martial. The
military defense counsel announced by whom he was
detailed; that he was qualified, certified, and sworn;
and that he had not acted in any manner which might
tend to disqualify him in Appellant’s court-martial.
One of the civilian defense counsel announced that he
and Appellant’s other civilian defense counsel were
members in good standing with their state bars and
neither acted in any manner which may tend to
disqualify them. The military judge swore in the
assistant trial counsel and both civilian defense
counsel. The military judge asserted he was not aware
of any grounds for challenge against him, and allowed
the trial counsel to question him about the nature of
his relationship with the civilian defense counsel. The
military judge announced that “[c]ounsel on both sides
appear to have the requisite qualifications and all
personnel required to be sworn have been sworn.”
Immediately afterwards, the military judge
ascertained from Appellant that he did not want to be
re-advised of his rights to forum, and that he
understood his choices regarding forum. Appellant
elected to be tried by military judge. Before approving
Appellant’s request, the military judge ascertained
55a
that Appellant’s choice was voluntary, and that he
understood he was giving up the right to be tried by a
court composed of members. The military judge then
called on Appellant for pleas, and Appellant’s counsel
entered his pleas of guilty, including to a lesserincluded offense.
In my view, the trial judge remedied the omission
in the transcript by conducting an Article 39(a)
session that covered most of what normally occurs at
an arraignment session, and the parties proceeded as
if there were no errors with Appellant’s arraignment.
Defects in the arraignment may be waived. 4 In United
States v. Lichtsinn, 32 M.J. 898, 899 (A.F.C.M.R.
1991), the military judge called upon the accused for
pleas, but did not direct the reading of the charges as
required by R.C.M. 904. “The parties clearly
proceeded as if there had been an arraignment, a
formal plea was entered, and there was no objection
to the defective process at trial.” Id. In this case,
Appellant was arraigned on 25 January 2019. On
19 June 2019, at the initial trial Article 39(a) session,
the military judge called on Appellant for pleas, as is
done during an arraignment. While the trial judge did
not ensure the charges were read, or obtain
Appellant’s waiver, such “error in the arraignment
process” may be waived. Id. In the present case, even
if the arraignment was deficient, Appellant waived
the errors at trial and proceeded “as if there had been
an arraignment.” Id. That the transcript of
See Garland v. Washington, 232 U.S. 642, 646–47 (1914)
(holding errors in arraignment may be waived and do not
warrant reversal when other due process requirements are met,
and opining a contrary holding would be an unnecessary
“technical enforcement of formal rights”).
4
56a
Appellant’s initial arraignment is not in the record of
trial is insubstantial.
While we cannot know how long the initial Article
39(a) session was, we know the duration of the initial
trial Article 39(a) session. The beginning of the trial
to when pleas were entered comprise 10 pages of the
171-page transcript—this includes marking appellate
exhibits. I have no reason to believe the untranscribed Article 39(a) session was significantly
longer. What we would expect to happen at an initial
Article 39(a) session happened at trial, and what did
not happen at trial, Appellant waived any error
therefrom.
B. Remedy
1. Law
In United States v. Tate, the CAAF considered
whether the transcript of the appellant’s trial was
verbatim when the “court’s recording device had failed
to capture the previous day’s sentencing proceedings”
and the military judge purported to start the
sentencing proceedings “anew.” __ M.J. __, No. 210235, 2022 CAAF LEXIS 381, at *3–4 (C.A.A.F. 23
May 2022). The CAAF employed a two-part analysis:
“First, . . . decide whether the transcript was
substantially verbatim” and “if it is not, . . . decide
whether the military judge’s remedy upon discovering
the recording malfunction was proper and sufficient
such that it resulted in a substantially verbatim
transcript.” Id. at *7. “In the absence of any guidance
from the Rules, military courts have long authorized
three potential solutions when court recording devices
fail: (1) declaring a mistrial; (2) reconstructing the
record of trial; and (3) starting anew.” Id. at *2. In
Tate, the CAAF found the military judge did not
57a
actually start anew; he announced he would not
consider aggravation testimony that was not
presented in the unrecorded portion, but did not state
what that testimony was.
2. Background and Analysis
Had the trial judge in Appellant’s case known that
the initial Article 39(a) session would not be
transcribed, his reference to that session and his
repetition of what commonly transpires at such a
session could be considered a combination of two
remedial actions: reconstruction and “starting anew.”
The bulk of the initial trial Article 39(a) session—as
described in great detail above—was starting anew.
The reconstruction was when Appellant agreed with
the trial judge that Appellant had been arraigned, had
been notified of his rights to counsel, and had been
notified of his forum choices. In Appellant’s case, the
initial Article 39(a) session was of no consequence.
Arraignment has legal effects, but those were not, and
are not, at issue in this case.
But because a session of low significance in this
case was not transcribed, the majority reads the law
to require this court conclude the transcript is not
substantially verbatim, and return the case to the
convening authority and authorize a rehearing on
findings and sentence. I am not convinced Davenport
and Tate require this result. No rulings, argument,
testimony, evidence, or anything else material to
Appellant’s case is missing from this record of trial.
Appellant pleaded guilty and satisfied the military
judge that he was in fact guilty of the offenses to which
he pleaded guilty. If the initial Article 39(a) session
had not happened, and Appellant’s trial progressed as
if it had, I am confident we would find the record was
58a
complete and there was no prejudicial error to
Appellant’s substantial rights. In this case, the trial
judge’s actions were remedial in effect and “sufficient
such that it resulted in a substantially verbatim
transcript.” See Tate, 2022 CAAF LEXIS 381, at *7.
Therefore, I respectfully dissent.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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