United States v. Seal

38 M.J. 659, 1993 CMR LEXIS 536, 1993 WL 489723
CourtU.S. Army Court of Military Review
DecidedNovember 29, 1993
DocketACMR 9201798
StatusPublished
Cited by12 cases

This text of 38 M.J. 659 (United States v. Seal) is published on Counsel Stack Legal Research, covering U.S. Army Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Seal, 38 M.J. 659, 1993 CMR LEXIS 536, 1993 WL 489723 (usarmymilrev 1993).

Opinion

OPINION OF THE COURT

GRAVELLE, Senior Judge:

In accordance with his pleas, the appellant was found guilty of making a false official statement, selling military property, and stealing military property, in violation of Articles 107, 108, and 121, Uniform Code of Military Justice, 10 U.S.C. §§ 907, 908, and 921 (1988) [hereinafter UCMJ]. He was sentenced by a military judge sitting as a general court-martial to a dismissal, confinement for nine months and forfeiture of $660.00 pay per month for nine months. In accordance with the terms of a pretrial agreement, the convening authority disapproved the confinement and approved the dismissal and the forfeiture of $660.00 pay per month for nine months.

The appellant, an infantry lieutenant, stole eleven body armor protective vests (flak jackets) from the United States and [661]*661sold them, along with nine other vests he had procured, to another lieutenant. The buyer intended to send the vests to relatives in Croatia. The appellant procured eleven of the vests by lying to supply personnel about their intended use.

The appellate defense counsel asserts that the record of proceedings is nonverbatim because two videotapes viewed by the military judge during the sentencing proceeding are neither included with nor are their contents transcribed into the record. The appellate government counsel agrees that the tapes or a transcription of their contents should have been included, but asserts that the omission is not substantial. We disagree with the government’s position, and find the record is incomplete and not substantially verbatim.

I.

After provident pleas of guilty, the appellant’s defense counsel proffered two videotapes during the sentencing proceeding. The defense counsel briefly described the two videotapes as recorded by NBC News during Operation Desert Shield/Storm and showing the appellant and his platoon on the border between Saudi Arabia and Iraq and then deploying into Iraq. Counsel explained that one tape was the “raw footage” and the other was the edited version for broadcast. The record of trial contains a notation: “The court observed the two tapes provided by the defense counsel.” The tapes were not marked, offered, or received into evidence as exhibits. In response to a question from the civilian defense counsel the military judge remarked that the tapes were a “narrative and I don’t think it’s necessary to have the actual video.”

In an affidavit submitted to this court, the trial counsel describes the contents of the tapes as follows:

During the sentencing portion of his trial, 1LT Seal showed two tapes of a video broadcast news segment, in which a reporter went on the scene, in Saudi Arabia, to cover mechanized infantry units preparing for war in Iraq. The videotape included footage of Bradley Fighting Vehicles from HHC, 3rd Battalion, 15th Infantry, 1LT Seal’s unit, cruising through the desert. The narration of the videos indicated that 1LT Seal’s battalion was involved in most of the front-line fighting during Operation Desert Storm. There was a very brief interview with 1LT Seal in which he described the motivated attitude of the soldiers in his platoon, and the general atmosphere of tension as the platoon prepared for a mission. As I remember, he was again interviewed immediately following the mission; during the interview 1LT described the mission as a success. After the viewing of the video tape was completed, defense counsel did not offer the video tape into evidence, and continued with his case by calling witnesses.

The tapes apparently are not now in the possession of the government or the appellant.1

During the sentencing proceeding, the appellant testified about his wartime experiences in Saudi Arabia and in Iraq, and described the mission for which he was awarded the Army Commendation Medal with “V” device. From the appellant’s testimony, we glean that the videotapes concerned a different mission than that described by the appellant in court.

II.

A “complete” record of proceedings is required for every general court-martial in which the sentence includes death, a dismissal, a discharge, or any other punishment which exceeds that which [662]*662may be adjudged by a special court-martial. Article 54(c)(1)(A), UCMJ. For cases involving an officer, a verbatim record is required if dismissal or confinement exceeding six months is adjudged. See Manual for Courts-Martial, United States, 1984, app. 21, Rule for Courts-Martial 1103(b)(2)(B), analysis, at A21-70 [hereinafter R.C.M. 1103(b)(2)(B) analysis]. The record must include a “verbatim” transcript of all court sessions (except sessions closed for deliberations or voting), including sidebar conferences, arguments of counsel, and rulings and instructions by the military judge. R.C.M. 1103(b)(2)(B) discussion.2 Videotapes shown in court should be included as exhibits within the record; or, a transcript of the contents of the videotapes should be prepared and included in the record. United States v. Kelsey, 14 M.J. 545 (A.C.M.R.1982). A failure to include an exhibit involves “completeness” rather than a nonverbatim record. United States v. Cudini, 36 M.J. 572 (A.C.M.R.1992).

The requirement for a complete and “substantially verbatim” record is “a jurisdictional prerequisite” for the validity of a “verbatim record” sentence. See United States v. Whitney, 23 U.S.C.M.A. 48, 50, 48 C.M.R. 519, 521 (1974). This prerequisite cannot be waived. Id. “The test as to whether an omission from a trial record is a fatal jurisdictional error turns on whether the omission is substantial.” United States v. Sanders, 37 M.J. 628, 630 (A.C.M.R.1993) (citing United States v. Gray, 7 M.J. 296 (C.M.A.1979)). A substantial omission renders a record incomplete. United States v. McCullah, 11 M.J. 234, 236 (C.M.A.1981). A substantial omission in a record of trial raises a presumption of prejudice to an accused which the government must rebut. R.C.M. 1103(b)(2) analysis; McCullah, 11 M.J. at 237; Cudini, 36 M.J. at 573. Conversely, an insubstantial omission does not raise the presumption of prejudice and does not prevent characterizing a record as “complete.” McCullah, 11 M.J. at 237; United States v. Behling, 37 M.J. 637 (A.C.M.R.1993); Cudini, 36 M.J. at 573.

The military judge, trial counsel, defense counsel, and court reporter all bear some responsibility for producing an accurate and complete record of proceedings for our consideration. The trial counsel, under the direction of the military judge, is responsible for preparing the record of trial. R.C.M. 1103(b)(1). After preparation of the record, the trial counsel shall examine the record before authentication and shall make such changes as are necessary to report the proceedings accurately. R.C.M. 1103(i)(l)(A). “Except when unreasonable delay will result, the trial counsel shall permit the defense counsel to examine the record before authentication.” R.C.M. 1103(i)(l)(B). If the defense counsel discovers errors or omissions in the record, the defense counsel may suggest appropriate changes or make objections. Id. discussion.

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Cite This Page — Counsel Stack

Bluebook (online)
38 M.J. 659, 1993 CMR LEXIS 536, 1993 WL 489723, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-seal-usarmymilrev-1993.