United States v. Lake

Opinion

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

UNITED STATES ) No. ACM 40168 Appellee ) ) v. ) ) ORDER Yasmeen M. LAKE ) Senior Airman (E-4) ) U.S. Air Force ) Appellant ) Panel 1

On 2 December 2022, counsel for Appellant submitted a Motion for En- largement of Time (Thirteenth) requesting an additional 30 days to submit Ap- pellant’s assignments of error. Counsel for Appellant notes that he cannot view certain evidence in Appellant’s case—specifically, Prosecution Exhibits 1, 12, 27, 37, 41, 45, 51, 62, 87, 88, 89, 90, and 91—because of proprietary software needed to view the evidence. The Government does not oppose the motion but suggests a status conference may be appropriate to address the software issue. On or about 1 November 2022, the court received a copy of the proprietary software from appellate government counsel. Since that date, the court has attempted to view the exhibits at issue but has been unsuccessful. The court has also solicited the assistance of personnel from the local communications squadron, but to date, has not been able to successfully install the software or view the exhibits. Department of the Air Force Manual (DAFMAN) 51-203, Records of Trial (21 Apr. 2021), provides guidance to Department of the Air Force personnel on preparation of records of trial. It notes, in relevant part: All digital audio and video media must be in a format playable on the factory installed version of Windows Media® player (e.g., WMV, WMA, MPEG, MP3, AVI). (T-1). Ensure the original and copies of the audio and video are clear prior to forwarding the ROT to JAJM. (T-1). Counsel offering the exhibit will verify that the media is not damaged and plays as intended. (T-1). DAFMAN 51-203, ¶ 2.2.4.2. The court notes that the prosecution exhibits at issue were not prepared in accordance with DAFMAN 51-203 or its predecessor guidance and therefore treats the record as incomplete. “A record of trial found to be incomplete or defective before or after certification may be corrected to make it accurate. A superior competent authority may return a record of trial to the military judge United States v. Lake, No. ACM 40168

for correction under this rule.” R.C.M. 1112(d)(2). The court returns the record of trial for the court reporter to make viewable Prosecution Exhibits 1, 12, 27, 37, 41, 45, 51, 62, 87, 88, 89, 90, and 91, in compliance with DAFMAN 51-203, ¶ 2.2.4.2. No status conference is required at this time. Accordingly, it is by the court on this 7th day of December, 2022, ORDERED: The record of trial is REMANDED to the Chief Trial Judge, Air Force Trial Judiciary, for return to the military judge for correction of the record pursuant to R.C.M. 1112(d)(2). Thereafter, the record of trial will be returned to this court for completion of appellate review under Article 66, UCMJ, 10 U.S.C. § 866. Appellate counsel for the Government shall inform the court not later than 19 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. It is further ordered: Appellant’s Motion for Enlargement of Time (Thirteenth) is therefore MOOT.

FOR THE COURT

CAROL K. JOYCE Clerk of the Court