United States v. Lampkins

• Court: United States Air Force Court of Criminal Appeals
• Decided: October 25, 2022
• Docket: 40135
• Status: Unpublished

Opinion

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

UNITED STATES ) No. ACM 40135 Appellee ) ) v. ) ) ORDER Bradley D. LAMPKINS ) Airman First Class (E-3) ) U.S. Air Force ) Appellant ) Panel 1

On 12 August 2020, a military judge sitting as a general court-martial con- victed Appellant, consistent with his pleas, of one charge and one specification of attempt to steal $9,999.00 (Charge I) in violation of Article 80, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 880; one charge and two specifications of larceny (Charge II) in violation of Article 121, UCMJ, 10 U.S.C. § 921; and one charge and 43 specifications of making, drawing, or uttering check, draft, or order without sufficient funds (Charge III) in violation of Article 123a, UCMJ, 10 U.S.C. § 923a. The military judge sentenced Appellant to a dishon- orable discharge, confinement for 540 days, reduction to the grade of E-1, and a reprimand.* On 24 June 2022, Appellant filed his brief with this court setting forth as- signments of error. In his brief, Appellant’s second assignment of error asks whether the record of trial (ROT) is incomplete because it is missing the mili- tary judge’s ruling on one of two legal issues trial defense counsel specifically preserved for appellate review. Specifically, the ROT is missing Appellate Ex- hibit (A.E.) XXVIII, the military judge’s ruling on the Defense Motion to Dis- miss for Speedy Trial. A review of the ROT confirms the military judge’s ruling regarding speedy trial is missing. The Government acknowledges the ROT does not include the military judge’s ruling denying the defense’s motion to dismiss for speedy trial. The Government argues that Appellant’s requested remedy for correction pursuant

* Because Appellant was convicted of conduct spanning between on or about 28 October

2018 and on or about 7 August 2019, references in this order to the punitive articles of the UCMJ are to both the Manual for Courts-Martial, United States (2016 ed.) and the Manual for Courts-Martial, United States (2019 ed.) (2019 MCM). As charges were referred to trial after 1 January 2019, references to the Rules for Courts-Martial and all other UCMJ references are to the 2019 MCM. United States v. Lampkins, No. ACM 40135

to Rule for Courts Martial (R.C.M.) 1112(d)(2) is unwarranted, as the Govern- ment has provided the missing exhibit through a motion to attach with an ac- companying declaration from appellate government counsel attesting to the exhibit’s authenticity. We acknowledge the motion to attach was granted, but we do not agree that this cures the defect without the exhibit actually being incorporated into the ROT. “A substantial omission renders a record of trial incomplete and raises a presumption of prejudice that the Government must rebut.” United States v. Henry, 53 M.J. 108, 111 (C.A.A.F. 2000) (citations omitted). “Insubstantial omissions from a record of trial do not raise a presumption of prejudice or affect that record’s characterization as a complete one.” Id. “Whether an omission from a record of trial is ‘substantial’ is a question of law which [appellate courts] review de novo.” United States v. Stoffer, 53 M.J. 26, 27 (C.A.A.F. 2000). Each case is analyzed individually to decide whether an omission is substan- tial. United States v. Abrams, 50 M.J. 361, 363 (C.A.A.F. 1999). Having reviewed the record, we find the omission of A.E. XXVIII, the mili- tary judge’s ruling on the issue of speedy trial, is substantial. R.C.M. 1112(d) provides for correction of a record of trial found to be incom- plete or defective after authentication. R.C.M. 1112(d)(2)–(3) describes the pro- cedure for return of the record of trial to the military judge for correction. The court notes that R.C.M. 1112(d)(2) requires notice and opportunity for the par- ties to examine and respond to the proposed correction. Accordingly, it is by the court on this 25th day of October, 2022, ORDERED: The record of trial is returned to the Chief Trial Judge, Air Force Trial Ju- diciary, to correct the record under R.C.M. 1112(d) to resolve a substantial is- sue with the post-trial processing, insofar as the military judge’s ruling on speedy trial is missing from the ROT. Thereafter, the record of trial will be returned to the court not later than 14 November 2022 for completion of its appellate review under Article 66(d), UCMJ, 10 U.S.C. § 866(d).

2 United States v. Lampkins, No. ACM 40135

If the record cannot be returned to the court by that date, the Government will inform the court in writing not later than 10 November 2022 of the status of the Government’s compliance with this order.

FOR THE COURT

CAROL K. JOYCE Clerk of the Court