U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
UNITED STATES ) No. ACM 40132
Appellee )
)
v. )
) ORDER
Christian D. PAYAN )
Airman First Class (E-3) )
U.S. Air Force )
Appellant ) Panel 2
On 18 May 2021, a general court-martial consisting of a military judge sit-
ting alone convicted Appellant, in accordance with his pleas and pursuant to a
plea agreement, of one charge and specification of sexual assault, in violation
of Article 120, Uniform Code of Military Justice (UCMJ),
10 U.S.C. § 920.1 Ap-
pellant was sentenced to a dishonorable discharge, confinement for 16 months,
forfeiture of all pay and allowances, and reduction to the grade of E-1.
Appellant’s case was docketed with the court on 28 July 2021. Upon review
of the record of trial, in response to Appellant’s motion to view sealed materials
dated 19 April 2022, the court discovered an omission in the record. Transcript
pages 28–38 show the military judge conducted a closed session of the court,
pursuant to Article 39(a), UCMJ,
10 U.S.C. § 839(a), and Military Rule of Evi-
dence 412. However, the record of trial filed with the court does not contain the
audio recording of the closed session. This transcribed session was ordered
sealed by the military judge, but we further discovered that these transcribed
pages were not sealed. On 27 April 2022, the court issued an order to correct
the record of trial by adding the missing audio of the closed session of the court.
We are rescinding this order due to the discovery of other deficiencies in the
record.
After this court’s 27 April 2022 order, it was brought to the attention of the
court that Appellate Exhibits V and VI contained the same document, Defense
Motion to Compel Production of Expert Consultant. Appellate Exhibit VI
should be the Government’s response to Defense’s motion to compel, but is
missing from the record.
1 All references in this order to the Uniform Code of Military Justice, Rules for Courts-
Martial, and Military Rules of Evidence, are to the Manual for Courts-Martial, United
States (2019 ed.).
United States v. Payan, No. ACM 40132
The record of trial must contain “[a] substantially verbatim recording of the
court-martial proceedings except sessions closed for deliberations and voting.”
Rule for Courts-Martial (R.C.M.) 1112(b)(1). Further, R.C.M 1112(d) provides
for correction of a record of trial found to be incomplete or defective after au-
thentication. R.C.M. 1112(d)(2)–(3) describes the procedure for the military
judge to take corrective action for an incomplete record. Once a superior court
returns a record to the military judge for correction, the military judge must
give notice of the proposed correction to the parties and permit the parties to
examine and respond to the proposed change.
Accordingly it is by the court on this 28th day of April, 2022,
ORDERED:
The Government shall take all steps necessary to ensure that transcript
pages 28–38 in the possession of any government office, Appellant, counsel for
Appellant (trial and appellate), or any other known copy, be retrieved and de-
stroyed if a paper copy, or destroyed if an electronic copy.2
However, if appellate defense counsel, and appellate government counsel,
possess transcript pages 28–38, counsel are authorized to retain copies of these
transcript pages until completion of our Article 66, UCMJ,
10 U.S.C. § 866,
review of Appellant’s case, to include the period for reconsideration in accord-
ance with JT. CT. CRIM. APP. R. 31. After this period, appellate defense counsel
and appellate government counsel shall destroy any retained copies of tran-
script pages 28–38 in their possession.
The Clerk of Court will ensure transcript pages 28–38 are properly sealed
in the record retained by the court.
It is further ordered:
The record of trial in Appellant’s case is returned to the Chief Trial Judge,
Air Force Trial Judiciary, for correction under R.C.M. 1112(d) to account for
the missing audio of the closed session of court, missing Appellate Exhibit VI,
and any other portion of the record that is determined to be missing or defective
hereafter, after consultation with the parties. See Article 66(g), UCMJ,
10
U.S.C. § 866(g); R.C.M. 1112(d)(2)–(3). After the military judge makes the nec-
essary corrective measures, the record of trial will be returned to this court for
completion of its appellate review under Article 66(d), UCMJ,
10 U.S.C.
§ 866(d).
2 The base legal office may maintain a sealed copy in accordance with Department of
the Air Force Manual 51-203, Records of Trial, ¶ 9.3.6 (21 Apr. 2021).
2
United States v. Payan, No. ACM 40132
The record of trial will be returned to the court not later than 31 May 2022.
If the record cannot be returned to the court by that date, the Government will
inform the court in writing not later than 26 May 2022 of the status of the
Government’s compliance with this order.
The court’s 27 April 2022 order is hereby RESCINDED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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