United States v. Mizuta

• Court: Navy-Marine Corps Court of Criminal Appeals
• Decided: March 5, 2019
• Docket: 201800269
• Status: Published

Opinion

United States Navy–Marine Corps Court of Criminal Appeals _________________________

UNITED STATES Appellee

v.

Daniel K. MIZUTA Lance Corporal (E-3), U.S. Marine Corps Appellant

No. 201800269

Appeal from the United States Navy-Marine Corps Trial Judiciary Decided: 5 March 2019. Military Judge: Commander William Weiland, JAGC, USN. Sentence adjudged 22 May 2018 by a general court-martial convened at Marine Corps Base Quantico, Virginia, consisting of a military judge sitting alone. Sentence approved by convening authority: reduction to E-1, forfeiture of all pay and allowances, confinement for 18 months, and a bad-conduct discharge. For Appellant: Major James S. Kresge, USMCR. For Appellee: Brian K. Keller, Esq. _________________________

This opinion does not serve as binding precedent under NMCCA Rule of Appellate Procedure 30.2(a). _________________________

Before WOODARD, FULTON, and ELLINGTON, Appellate Military Judges. United States v. Mizuta, No. 201800269

PER CURIAM: After careful consideration of the record, submitted without assignment of error, we have determined that the approved findings and sentence are cor- rect in law and fact and that no error materially prejudicial to Appellant’s substantial rights occurred. Articles 59 and 66, UCMJ, 10 U.S.C. §§ 859, 866. 1 The findings and sentence as approved by the convening authority are AFFIRMED.

FOR THE COURT:

RODGER A. DREW, JR. Clerk of Court

1 We note that the record of trial was authenticated by the court reporter. RULE FOR COURT-MARTIAL 1104(A)(2)(B), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2016 ed.), permits a court reporter in a judge-alone trial to authenticate a record of trial, but only if “the military judge cannot authenticate the record of trial because of the military judge’s death, disability, or absence” and “the trial counsel [present at the end of the trial] cannot authenticate the record of trial because of the trial coun- sel’s death, disability, or absence . . . .” The authentication page fails to indicate that the military judge and trial counsel were not available to authenticate the record of trial. However, in a hand-written note on a checklist attached to another part of the record, there is a reference that the military judge and trial counsel were unavailable to authenticate the record. Recognizing that in the future—for cases referred to trial on or after 1 January 2019—new procedures will apply, in the meantime a court re- porter remains unauthorized to authenticate the record unless certain conditions ex- ist. Those preconditions should be clearly set out as part of any substitute authenti- cation done by a court reporter or a trial counsel.