U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
UNITED STATES ) No. ACM 40131
Appellee )
)
v. )
) ORDER
John F. STAFFORD III )
Staff Sergeant (E-5) )
U.S. Air Force )
Appellant ) Special Panel
Appellant submitted his assignments of error to this court on 23 June 2022.
Among other alleged errors, Appellant asserted that four appellate exhibits
were missing from the record of trial. In addition, Appellant asserted that a
two-page supplement to the Preliminary Hearing Officer (PHO) report was
missing. Appellant asserts these omissions are both qualitatively and quanti-
tatively substantial, and that this court should remand the record to the Chief
Trial Judge of the Air Force Trial Judiciary in order for corrective action to be
taken under Rule for Courts-Martial (R.C.M.) 1112(d).
The Government submitted its answer brief on 25 August 2022. With re-
spect to the omissions asserted by Appellant, the Government conceded that
the four appellate exhibits are missing, and that “this case should be returned
to the military judge to correct the record in accordance with R.C.M. 1112(d).”
The Government did not comment on Appellant’s assertion that a two-page
supplement to the PHO report was also missing.
We have reviewed the record of trial and concur with the parties that four
appellate exhibits are missing from the record of trial. Specifically:
(1) Appellate Exhibit LXXI is described in the record as an email from the
circuit trial counsel dated 20 July 2020, attached to the record as additional
evidence in support of a defense motion to dismiss due to prosecutorial miscon-
duct. The document erroneously labeled as Appellate Exhibit LXXI in the rec-
ord is a copy of Appellate Exhibit LXVIII, which is a different email from the
circuit trial counsel dated 27 July 2020.
(2) Appellate Exhibit CXXVI is described in the record as the military
judge’s ruling on a defense motion to compel and supplemental motion to com-
pel dated 3 March 2021. The document erroneously labeled as Appellate Ex-
hibit CXXVI in the record is a copy of Appellate Exhibit CXV, a defense motion
for a continuance dated 3 March 2021.
United States v. Stafford, No. ACM 40131
(3) Appellate Exhibit CLXII is described in the record as the military
judge’s ruling on the Defense’s second motion to reconsider the military judge’s
ruling on the Defense’s motion for abatement, dated 9 March 2021. The docu-
ment erroneously marked as Appellate Exhibit CLXII in the record is a copy of
the Defense’s second motion to reconsider the military judge’s ruling on the
Defense’s motion for abatement, dated 7 March 2021.
(4) Appellate Exhibit CLXIII is described in the record as the Defense’s sec-
ond motion to reconsider the military judge’s ruling on the Defense’s motion
for abatement, dated 7 March 2021. The document erroneously marked as Ap-
pellate Exhibit CLXIII in the record is a copy of Appellate Exhibit CLV, a de-
fense supplemental motion to compel production and discovery, dated 7 March
2021.
With respect to Appellant’s assertion that a two-page supplement to the
PHO report is also missing, we note that, as Appellant states, such a supple-
ment is listed as an attachment to the Special Court-Martial Convening Au-
thority’s transmittal of charges memorandum dated 18 March 2021. In addi-
tion, the record includes a receipt signed by Appellant on 24 February 2020
whereby Appellant acknowledges receipt of two “Supplemental Continuation
Pages for PHO Report.” However, the two-page supplement itself does not ap-
pear to be included in the record of trial.
A complete record of the proceedings must be prepared for any general
court-martial that results in a punitive discharge or more than six months of
confinement. Article 54(c)(2), UCMJ,
10 U.S.C. § 854(c)(2). The record of trial
in every general court-martial shall include, inter alia, the exhibits, including
appellate exhibits. R.C.M. 1112(b)(6). Unless it is used as an exhibit, the PHO
report prepared pursuant to Article 32, UCMJ,
10 U.S.C. § 832, shall be at-
tached to the record for appellate review. R.C.M. 1112(f)(1)(A).
“[A] substantial omission renders a record of trial incomplete and raises a
presumption of prejudice that the [G]overnment must rebut.” United States v.
Harrow,
62 M.J. 649, 654 (A.F. Ct. Crim. App. 2006) (citation omitted), aff’d,
65 M.J. 190 (C.A.A.F. 2007). “In assessing [ ] whether a record is complete . . .
the threshold question is ‘whether the omitted material was “substantial,” ei-
ther qualitatively or quantitatively.’” United States v. Davenport,
73 M.J. 373,
377 (C.A.A.F. 2014) (quoting United States v. Lashley,
14 M.J. 7, 9 (C.M.A.
1982)). “Omissions are quantitatively substantial unless ‘the totality of omis-
sions . . . becomes so unimportant and so uninfluential when viewed in the
light of the whole record, that it approaches nothingness.’”
Id. (omission in
original) (quoting United States v. Nelson,
13 C.M.R. 38, 43 (C.M.A. 1953)).
“A record of trial found to be incomplete or defective before or after certifi-
cation may be corrected to make it accurate. A superior competent authority
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United States v. Stafford, No. ACM 40131
may return a record of trial to the military judge for correction under this rule.”
R.C.M. 1112(d)(2).
Accordingly, it is by the court on this 8th day of November, 2022,
ORDERED:
The record of trial is REMANDED to the Chief Trial Judge, Air Force Trial
Judiciary, for return to the military judge for correction of the record pursuant
to R.C.M. 1112(d)(2). Thereafter, the record of trial will be returned to this
court for completion of appellate review under Article 66, UCMJ,
10 U.S.C.
§ 866. Appellate counsel for the Government shall inform the court not later
than 13 January 2023, in writing, of the status of compliance with the court’s
order unless the record of trial has been returned to the court prior to that
date.
FOR THE COURT
ANTHONY F. ROCK, Maj, USAF
Acting Clerk of the Court
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