UNITED STATES AIR FORCE
COURT OF CRIMINAL APPEALS
________________________
No. ACM 40009
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UNITED STATES
Appellee
v.
George S. GARCIA-ARCOS
Senior Airman (E-4), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 9 June 2022
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Military Judge: Rebecca E. Schmidt.
Sentence: Sentence adjudged on 30 September 2020 by GCM convened at
Creech Air Force Base, Nevada. Sentence entered by military judge on 29
October 2020: Dishonorable discharge, confinement for 22 months, total
forfeiture of pay and allowances, and reduction to E-1.
For Appellant: Major Ryan S. Crnkovich, USAF.
For Appellee: Major Brittany M. Speirs, USAF; Mary Ellen Payne, Esquire.
Before POSCH, RICHARDSON, and CADOTTE, Appellate Military Judges.
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This is an unpublished opinion and, as such, does not serve as prece-
dent under AFCCA Rule of Practice and Procedure 30.4.
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PER CURIAM:
A general court-martial composed of a military judge sitting alone con-
victed Appellant, consistent with his pleas, of one charge and two specifications
of aggravated assault in which grievous bodily harm was inflicted on another
United States v. Garcia-Arcos, No. ACM 40009
person in violation of Article 128(b)(2), UCMJ,
10 U.S.C. § 928(b)(2).1 Appel-
lant’s plea to the first specification established that he stabbed one Airman
with a knife, thereby inflicting two deep cuts to that Airman’s neck. Appellant’s
plea to the second specification established that he cut a second Airman with
a knife, thereby inflicting a deep cut to that Airman’s chin. Appellant entered
pleas pursuant to a plea agreement he made with the convening authority who
referred the charge and specifications to trial by court-martial.
I. BACKGROUND
At Appellant’s court-martial, the military judge accepted his pleas and an-
nounced findings of guilty. Appellant was sentenced to a dishonorable dis-
charge, to be confined for 22 months, to forfeit all pay and allowances,2 and to
be reduced to the grade of E-1. When the military judge announced the sen-
tence, she ordered three days’ credit against the term of confinement for time
Appellant spent in pretrial confinement. After sentencing, the convening au-
thority took no action, and the military judge entered the findings and sentence
as the judgment of the court-martial. On 6 January 2021, the court reporter
certified that “the Record of Trial [w]as accurate and complete in accordance
with [Rule for Courts-Martial (R.C.M.)] 1112(b).” On 21 January 2021, the rec-
ord was docketed with the court.
On appeal, Appellant seeks relief because the Government submitted an
incomplete record of trial to the court. In that regard, Appellant asks whether:
(1) his record of trial is substantially complete; and (2) he is entitled to relief
for unreasonable post-trial delay because the Government submitted an incom-
plete record.3 Both issues are founded on an audio recording of a 911 phone call
on the night of the assaults. A copy of that recording was one of seven attach-
ments to a stipulation of fact that was admitted as a prosecution exhibit. In
addition to these raised issues, the court considers a related matter that was
revealed in our Article 66(d), UCMJ,
10 U.S.C. § 866(d), review. During that
review, the court discovered Appellate Exhibits IX through XIII had been iden-
tified in the verbatim transcript of the proceedings, but each of these five ex-
hibits was omitted from the original record.
1 References to the UCMJ and the Rules for Courts-Martial are to the Manual for
Courts-Martial, United States (2019 ed.).
2 The military judge entered a sentence relating to forfeitures as follows: “Forfeitures
of Pay and/or Allowances: Total.” Assuming error, we find the irregularity is harmless.
3 Appellant personally raised issue (2) pursuant to United States v. Grostefon,
12 M.J.
431 (C.M.A. 1982).
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United States v. Garcia-Arcos, No. ACM 40009
After Appellant submitted issues (1) and (2) to the court, and before the
court discovered Appellate Exhibits IX through XIII were missing, the Govern-
ment moved, without objection from Appellant, to attach to the appellate rec-
ord what it described as a copy of the 911 recording at issue along with a dec-
laration from the trial counsel. In that declaration, trial counsel attested to the
authenticity of the recording as a “true and accurate version” of the attachment
to the stipulation of fact “that was admitted at trial.” The court granted the
motion, thereby attaching trial counsel’s declaration and the recording to the
appellate record.
When the court discovered that five appellate exhibits were missing, we
ordered the Government to show good cause why we should not remand the
record for correction. In response, the Government explained that copies of the
five exhibits that are missing from the original record are present in both the
Government’s and Appellant’s counsel’s copy of the record. At the same time,
the Government moved, without objection from Appellant, to attach another
declaration from the same trial counsel. That second declaration included five
attachments that trial counsel identified as Appellate Exhibits IX through XIII
that are missing from the original record.
In her second declaration, trial counsel explained that Government Appel-
late Counsel had provided trial counsel with a copy of each of the five appellate
exhibits that were included in the Government’s copy of the record. Trial coun-
sel compared those copies with the case file at the base legal office. Trial coun-
sel determined that the copies maintained at the base legal office “match both
Government Appellate Counsel’s copies and what was introduced at trial.” At-
tached to her declaration, trial counsel included five appellate exhibits that
were identified on the record of the court-martial proceeding, which trial coun-
sel described in her declaration as follows:
Appellate Exhibit IX is a 4-page Defense Rebuttal to Govern-
ment’s Supplement for Change of Venue, dated 17 June 2020.
Appellate Exhibit X is a 4-page Ruling on Government Motion
for Change of Venue, dated 30 June 2020. Appellate Exhibit XI
is a 30-page Government Motion for Reconsideration, dated 16
June 2020. Appellate Exhibit XII is a 7-page Defense Response
to Government’s Request for Reconsideration, dated 23 July
2020. Appellate Exhibit XIII is a 6-page Government Reply to
Defense’s Response to Reconsideration Motion, dated 29 July
2020.
Trial counsel then attested to the authenticity of these documents: “To the
best of my recollection, the attachments are a true and accurate versions [sic]
of Appellate Exhibit IX, Appellate Exhibit X, Appellate Exhibit XI, Appellate
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United States v. Garcia-Arcos, No. ACM 40009
Exhibit XII, and Appellate Exhibit XIII.” In its motion to attach, the Govern-
ment avers that this second trial counsel declaration was responsive to the
court’s order to show cause, and that the record should not be remanded for
correction. The court granted the motion, thereby attaching trial counsel’s sec-
ond declaration and the five attachments to the appellate record.
II. DISCUSSION
We find that the matter of the incomplete prosecution exhibit and missing
appellate exhibits is raised by the record, and thus we may consider the decla-
rations and their attachments in conducting our review. See United States v.
Jessie,
79 M.J. 437, 444 (C.A.A.F. 2020) (holding Courts of Criminal Appeals
may consider affidavits when doing so is necessary to resolve issues raised by
materials in the record). The court considers both declarations and their at-
tachments to resolve whether relief is warranted.
In doing so, we do not consider the attachments to the appellate record as
a means to complete the record; we assume our granting both motions does not
change the fact that the record, as certified and submitted to the court, is in-
complete. The Government was required to include trial exhibits in the record.
R.C.M. 1112(b)(6). Here, the Government manifestly failed to submit a com-
plete record. In that regard, “[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 omit-
ted). However, “[i]nsubstantial omissions from a record of trial do not raise a
presumption of prejudice or affect that record’s characterization as a complete
one.”
Id.
Without reaching the question whether the omissions were individually or
collectively substantial, we find the Government has sufficiently shown Appel-
lant was not prejudiced. It is clear that the military judge had the 911 record-
ing during the providence inquiry and sentencing. Appellant’s clemency re-
quest made no reference to the content of the recording or otherwise challenge
the legality of his pleas or sentence. Because the recording has been provided
to the court, and Appellant does not challenge its authenticity, we are not hin-
dered in conducting our review of the providence of the pleas. As for the miss-
ing appellate exhibits that relate to the Government’s motion to change venue,
we again note that Appellant did not raise this issue in clemency. We also note
that the attachments to trial counsel’s second declaration were identified on
the record and adequately explain how the military judge ultimately reached
the conclusion to grant the motion. Appellant did not prevail on this issue at
trial, and the military judge’s ruling, marked as Appellate Exhibit XIV, was
properly included in the record that was submitted to the court. We were not
hindered in conducting our review of this issue. Therefore, the Government
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United States v. Garcia-Arcos, No. ACM 40009
has rebutted the presumption of prejudice and Appellant is not entitled to re-
lief. Accordingly, we do not order the record returned for correction under
R.C.M. 1112(d).
As to the second issue raised by Appellant, the court considers whether
Appellant is entitled to relief due to delay caused by submission of an incom-
plete record. We examine whether Appellant is entitled to relief under stand-
ards established for facially unreasonable delay in United States v. Moreno,
63
M.J. 129, 142–43 (C.A.A.F. 2006), and that this court articulated in United
States v. Livak,
80 M.J. 631, 633 (A.F. Ct. Crim. App. 2020) (deducing aggre-
gate standard from standards announced by our superior court in Moreno). Ap-
pellant argues he is entitled to a presumption of unreasonable delay because a
complete record has never been submitted to the court, and thus “the Govern-
ment did not comply with the 150-day Livak timeframe. As such, that clock
continues to tick.” However, neither Moreno nor Livak articulate standards for
presumptively unreasonable post-trial delay premised on an incomplete rec-
ord. We are not persuaded in this case to adopt such a presumption where a
record of trial is docketed by the court within standards established in Moreno
and Livak, but is later discovered to be incomplete. The record that was sub-
mitted to the court did not completely preclude appellate review, unlike a cir-
cumstance addressed by Moreno where the case had not been docketed for some
time and the delay was unexplained. 63 M.J. at 137.
Under Article 66, UCMJ, we have authority to grant sentence relief for ex-
cessive post-trial delay without a showing of actual prejudice required by Arti-
cle 59(a), UCMJ,
10 U.S.C. § 859(a). United States v. Tardif,
57 M.J. 219, 224
(C.A.A.F. 2002) (citation omitted); see also United States v. Harvey,
64 M.J. 13,
25 (C.A.A.F. 2006). The delay in this case did not cause Appellant to serve un-
warranted confinement and was not so egregious that it adversely affects the
public’s perception of the fairness and integrity of the military justice system.
As a result, there is no due process violation. See United States v. Toohey,
63
M.J. 353, 362 (C.A.A.F. 2006). We determine that Appellant is not due relief
even in the absence of a due process violation. See Tardif, 57 M.J. at 223–24.
Applying the factors articulated in United States v. Gay,
74 M.J. 736, 744 (A.F.
Ct. Crim. App. 2015), aff’d,
75 M.J. 264 (C.A.A.F. 2016), we find relief for Ap-
pellant is not warranted.
III. CONCLUSION
The findings and sentence as entered are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred. Ar-
ticles 59(a) and 66(d), UCMJ,
10 U.S.C. §§ 859(a), 866(d).
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United States v. Garcia-Arcos, No. ACM 40009
Accordingly, the findings and the sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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