United States v. Brown

Opinion

U NITED S TATES A IR F ORCE C OURT OF C RIMINAL APPEALS

UNITED STATES ) No. ACM 40066 Appellee ) ) v. ) ) ORDER Allan L. BROWN ) Air Force Cadet ) U.S. Air Force ) Appellant ) Special Panel

Appellant’s general court-martial took place on 29 August 2019 and 5–16 October 2020. The original record of trial was docketed with this court on 15 April 2021. Volume 1 of the original record of trial includes one disc that con- tains audio recordings of the closed proceedings of the court-martial, and two discs that contain audio recordings of the open proceedings on 29 August 2019 and 5–9 October 2020. However, recordings of the open proceedings from 10– 16 October 2020 are not included. A certified verbatim written transcript of the proceedings is attached to the record. Rule for Courts-Martial (R.C.M.) 1112(b) provides that “[t]he record of trial in every general and special court-martial shall include: (1) A substantially verbatim recording of the court-martial proceedings except sessions closed for deliberations and voting . . . .” Appellant’s brief to this court, the Government’s answer, and Appellant’s reply brief did not address the omitted recordings. On 6 October 2022, this court issued an order to the Government to show good cause as to why this court should not return the record of trial for correction of the record in accord- ance with R.C.M. 1112(d). On 19 October 2022, the Government submitted its timely answer to the court’s order. The Government agreed with the court that the recorded proceedings for 10–16 October 2020 are “missing” from the record. However, the Government contends remand is unnecessary because the at- tached verbatim transcript of the entire proceedings enables this court to per- form its Article 66, UCMJ, 10 U.S.C. § 866, review. Nevertheless, we find re- mand appropriate in order to correct this substantial deficiency in the record of Appellant’s court-martial. Accordingly, it is by the court on this 25th day of October, 2022, ORDERED: United States v. Brown, No. ACM 40066

Pursuant to R.C.M. 1112(d), the record of trial is returned to the military judge for correction of the deficiency identified above—the omission of the sub- stantially verbatim recording of multiple days of the court-martial proceed- ings. Thereafter, the record of trial will be returned to the court for completion of appellate review under Article 66, UCMJ. Appellate counsel for the Govern- ment shall inform the court not later than 15 December 2022, in writing, of the status of compliance with the court’s order unless the record of trial has been returned to the court prior to that date.

FOR THE COURT

CAROL K. JOYCE Clerk of the Court