United States v. Greene

64 M.J. 625, 2007 CCA LEXIS 42, 2007 WL 610667
U S Coast Guard Court of Criminal Appeals·Decided February 28, 2007·No. CGCMS 24289; No. 1226·Published·Cited by 17 cases

Opinion

McClelland, Chief Judge:

Appellant was tried by special court-martial, military judge alone. Pursuant to his pleas of guilty, entered in accordance with a pretrial agreement, Appellant was convicted of the following offenses: four specifications of wrongful appropriation, in violation of Article 121, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 921; six specifications of making a false official statement with the intent to deceive and one specification of signing a false official record with intent to deceive, in violation of Article 107, UCMJ, 10 U-S.C. § 907; and one specification of failing to obey a lawful order, in violation of Article 92, UCMJ, 10 U.S.C. § 892. The military judge sentenced Appellant to a bad-conduct discharge, confinement for 180 days, and reduction to E-l. The Convening Authority approved the sentence as adjudged but, in accordance with the pretrial agreement, suspended the portion of the sentence extending to confinement in excess of four months for twelve months from the date the sentence was awarded.

Before this Court, Appellant has assigned three errors:

I. That this Court can have no confidence that the record is substantially verbatim because demonstrated significant omissions from the transcript call into question the accuracy and completeness of the record.
II. That this Court should consider the unreasonable and unexplained post-trial delay in determining the sentence that should be approved.
III. That trial defense counsel entered an irregular plea by pleading only to Charge IV and not the specification thereunder.

We grant sentence relief on the second issue, and otherwise affirm.

Substantially Verbatim Record

Appellant points out that the military judge made at least ten edits to the transcript involving insertion of omitted material in which the omitted material was a part of the trial guide script where the military judge explains rights to the accused. Appellant casts doubt on whether the military judge actually read these parts of the script, admitting that he probably did, but “this Court cannot really be sure.” (Appellant Br. 8.) He also asserts, ‘We only know about the omissions because we have the trial script to compare the record to. But there was significant unscripted discussion on that first day” (Appellant Br. 8), and “there is no way to know what was omitted from that discussion because there is nothing to compare the record to” (Appellant Br. 9).

The trial extended over two days, with different court reporters on the different days. The transcript giving rise to this assignment of error is from the first day, which covered the beginning of the trial, pleas, the providence inquiry on the first two specifications under Charge I, and part of the providence inquiry on the third specification under Charge I. Most of the material the military judge inserted to which Appellant calls attention consists of full phrases, full sentences, or even, in two cases, multiple sentences. The military judge did make a few insertions of unscripted material, each of which consisted of a word or two.

Appellant points out that proceedings are required to be substantially verbatim, citing Article 54(a), UCMJ, 10 U.S.C. § 854(a) 1; United States v. Douglas, 1 M.J. 354 (C.M.A.1976)2; United States v. Webb, 23 USCMA 333, 49 C.M.R. 667, 1975 WL 15888 (1975)3; [627] United States v. Boxdale, 22 USCMA 414, 47 C.M.R. 351, 1973 WL 14729 (1973) 4; United States v. Nelson, 3 USCMA 482, 13 C.M.R. 38, 1953 WL 2388 (1953) 5; United States v. Weber, 20 USCMA 82, 42 C.M.R. 274, 1970 WL 7069 (1970) 6; and United States v. Sturdivant, 1 M.J. 256 (C.M.A.1976) 7.

The authentication of the record imports verity. United States v. Galloway, 2 USCMA 433, 435, 9 C.M.R. 63, 66, 1953 WL 2606 (1953). “In the absence of any allegation of fraud, ... we accept [the record of trial] as an accurate recordation of the occurrence at the trial.” United States v. Albright, 9 USCMA 628, 632, 26 C.M.R. 408, 412, 1958 WL 3393 (1958). To the extent that the authenticated record of trial shows itself to be verbatim, it is accepted as verbatim in the absence of fraud.

However, if the record itself shows that it is not verbatim, this fact may have consequences. In the cases cited by Appellant, it was acknowledged that the record was not literally verbatim. In most of them, the record did not even purport to be verbatim. In United States v. Weber, the record detailed the efforts put forth to reconstruct an accurate record, and there was an assertion by the Staff Judge Advocate (SJA) that the record was substantially verbatim, but the Court of Military Appeals said, “While the authentication of the record imports verity, such in this case is rebutted conclusively by the conceded facts. Thus, all apparently agreed that the recording equipment malfunctioned, and it was not possible to transcribe the record.” 20 USCMA at 83, 42 C.M.R. at 275.

In our case, by contrast, there is nothing in the record to rebut the fact of authentication, and we see no apparent material omissions. The military judge corrected several omissions by the court reporter. Appellant has not identified any specific omission in the authenticated record, but would have us infer additional unspecified and unknown omissions based upon the fact that the military judge found omissions to correct. This we decline to do. See United States v. Skinner, 17 M.J. 1042, 1043 (C.G.C.M.R.1984). We find no reason to consider the record anything other than verbatim. See United States v. Donati, 14 USCMA 235, 242, 34 C.M.R. 15, 22, 1963 WL 4751 (1963). This assignment of error is rejected.

Unreasonable Post-Trial Delay

Appellant points out that the Convening Authority did not take action until 173 days after sentence was adjudged. The record was not received by the Judge Advocate General until 201 days after sentence was adjudged. Appellant asserts that this delay was unreasonable and unexplained, warranting relief.

An accused has a right to a timely review of his court-martial findings and sentence independent of any request for diligent post-trial processing. United States v. Walters, 61 M.J. 637, 638-39 (C.G.Ct.Crim.App.2005) and cases cited therein. Upon finding unreasonable and unexplained post-trial delay, this Court may consider such delay, along with all the other facts and circumstances reflected in the record, in exercising its responsibilities under Article 66(c), UCMJ, 10 U.S.C. § 866(c). United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F.2002).

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United States v. Greene, 64 M.J. 625, 2007 CCA LEXIS 42, 2007 WL 610667 (uscgcoca 2007).

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