United States v. Matthew ( 2022 )

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39796 (f rev)
________________________
UNITED STATES
Appellee
v.
Maxwell A. MATTHEW
Staff Sergeant Class (E-5), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Upon Further Review
Decided 21 July 2022
________________________
Military Judge: Shaun S. Speranza (arraignment); 1 Bryon T. Gleisner.
Approved sentence: Dishonorable discharge, confinement for 17 months,
and reduction to E-1. Sentence adjudged on 20 June 2019 by GCM con-
vened at Patrick Air Force Base, Florida.
For Appellant: Major Amanda E. Dermady, USAF; Robert Feldmeier,
Esquire.
For Appellee: Lieutenant Colonel Brian C. Mason, USAF; Lieutenant
Colonel Matthew J. Neil, USAF; Major Alex B. Coberly, USAF; Mary
Ellen Payne, Esquire.
Before JOHNSON, RICHARDSON, and CADOTTE, Appellate Military
Judges.
Judge CADOTTE delivered the opinion of the court, in which Chief
Judge JOHNSON joined. Judge RICHARDSON filed a separate dissent-
ing opinion.
1 Judge Speranza is identified as the detailed military judge for Appellant’s arraign-
ment in a memorandum dated 22 January 2019. We explain the significance of this
memorandum later in this opinion.
United States v. Matthew, No. ACM 39796 (f rev)
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
CADOTTE, Judge:
A military judge sitting as a general court-martial convicted Appellant, in
accordance with his pleas, of one specification of wrongful possession of child
pornography on divers occasions in violation of Article 134, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 934; and one specification of attempt to
distribute child pornography on divers occasions in violation of Article 80,
UCMJ, 10 U.S.C. § 880.2,3 The military judge sentenced Appellant to a dishon-
orable discharge, confinement for 17 months, and reduction to the grade of E-
1.4
Appellant’s case is before us for the second time. Appellant raised two as-
signments of error, one of which asserts the record of trial is incomplete. Dur-
ing our initial review of this case, we determined that the transcript for Appel-
lant’s arraignment was missing from the record of trial. As a result, pursuant
to Rule for Courts-Martial (R.C.M.) 1104(d)(1), we returned the record of trial
to the convening authority with direction to return it to the military judge who
presided at Appellant’s court-martial and was present at the end of the pro-
ceedings, for action consistent with R.C.M. 1104(d). See United States v. Mat-
thew, No. ACM 39796, 2020 CCA LEXIS 486, at *2 (A.F. Ct. Crim. App. 23 Dec.
2 All references to the punitive articles of the UCMJ are to the Manual for Courts-
Martial, United States (2012 ed.). Unless otherwise noted, all other references to the
UCMJ and Rules for Courts-Martial (R.C.M.) are to the Manual for Courts-Martial,
United States (2016 ed.).
3 Appellant was charged with one specification of wrongful distribution of child por-
nography in violation of Article 134, UCMJ, but entered a plea of guilty to the lesser
included offense of attempt to distribute child pornography in violation of Article 80,
UCMJ. After the Government informed the military judge of its intent to not go for-
ward with proof on the greater offense, the military judge found Appellant not guilty
of the wrongful distribution of child pornography in violation of Article 134, UCMJ, 10
U.S.C. § 934, but guilty in accordance with his plea.
4 The convening authority deferred all mandatory forfeitures and reduction in grade
from 14 days after the sentence was adjudged until date of action, pursuant to Article
57, UCMJ, 10 U.S.C. § 857. The convening authority also waived mandatory forfeitures
for a period of six months, or release from confinement or expiration of term of service,
whichever is sooner, from 14 days after sentence was adjudged to be paid to Appellant’s
spouse for the benefit of his children, pursuant to Article 58b, UCMJ, 10 U.S.C. § 858b.
2
United States v. Matthew, No. ACM 39796 (f rev)
2020) (order). That judge was to determine whether the judge who presided
over Appellant’s arraignment could authenticate the arraignment transcript
or whether a substitute authentication may be completed under R.C.M.
1104(a)(2)(B). Id. at *3–4. On 4 March 2021, the Government returned the rec-
ord of trial without correction, stating, “An authenticated transcript of Appel-
lant’s arraignment cannot be obtained because the audio recording of the hear-
ing has been lost and no alternatives can be located.” The case was then re-
docketed with this court.
We now turn to Appellant’s assignments of error: (1) whether Appellant’s
plea to attempted distribution of child pornography was not provident because
Appellant did not disclose specific intent; and (2) whether the record of trial is
incomplete. We do not reach a decision on the first issue as a result of our res-
olution of the second. We find the record of trial is not verbatim. Consequently,
we set aside the findings and sentence and return the case to The Judge Advo-
cate General for return to an appropriate convening authority for action con-
sistent with R.C.M. 1103(f).
I. BACKGROUND
At his court-martial, Appellant pleaded guilty to possessing and attempt-
ing to distribute child pornography on divers occasions between on or about 30
August 2015 and 19 October 2017 while stationed at Barksdale AFB, Louisi-
ana, and Patrick AFB. On 22 January 2019, Judge Speranza, the Chief Circuit
Military Judge for the Eastern Circuit, issued a memorandum with the subject
of “Confirmation of ‘Arraignment and Initial Trial Dates.’” In the memoran-
dum, Judge Speranza detailed himself to the arraignment set to take place on
25 January 2019, and detailed Judge Gleisner to preside over the trial. This is
the only document in the record that refers to Judge Speranza.
The ROT does not include a session on 25 January 2019 containing Appel-
lant’s arraignment. Appellate Exhibit I, a scheduling order containing a sum-
mary of an R.C.M. 802 scheduling conference on 25 January 2019, indicates
the parties and Judge Gleisner discussed, inter alia, “Arraignment.
(25 Jan 19),” “Expected Motions. (IAW scheduling order),” and “Expected Pleas
and Forum. (TBD).” At trial on 19 June 2019, Judge Gleisner engaged in the
following colloquy with Appellant regarding Appellant’s arraignment:
MJ: You were previously arraigned on 25 January 2019. Do you
recall that [Appellant]?
[Appellant]: Yes, Your Honor[.]
MJ: And at that time your rights to counsel were explained to
you. Would you like me to re-advise you of your rights to counsel?
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United States v. Matthew, No. ACM 39796 (f rev)
[Appellant]: No, Your Honor.
MJ: Do you have any questions about your rights to counsel?
[Appellant]: No, Your Honor.
MJ: And by whom do you wish to be represented?
[Appellant]: Major [K], Mr. [S] and Mr. [G].
MJ: And by them alone?
[Appellant]: Yes, Your Honor.
....
MJ: And [Appellant], I’m going to go ahead and talk to you a little bit
about your forum rights. Your forum rights were explained to you dur-
ing the 25 January 2019 arraignment. Would you like me to re-advise
you of your forum rights?
[Appellant]: No, Your Honor.
MJ: Excuse me?
[Appellant]: No, Your Honor.
MJ: Thank you.
So, do you understand the choices that you had with your regards to
forum?
[Appellant]: Yes, Your Honor.
MJ: And by which type of court do you wish to be tried?
[Appellant]: By judge alone, Your Honor.
In its response to Appellant’s assignments of error, the Government re-
quested that if this court is inclined to find prejudicial error, we should return
the record “to the convening authority for appropriate action under R.C.M.
1104(d).” On 23 December 2020, this court ordered the ROT be “returned to
the convening authority, who will return it to the military judge who presided
at Appellant’s court-martial and was present at the end of the proceedings, for
action consistent with R.C.M. 1104(d).” It was further ordered that “[i]f au-
thentication of the arraignment transcript cannot be obtained, the ROT will be
returned to our court with an explanation from the Government as to why it
cannot comply with this order.”
On 14 January 2021, in compliance with this court’s order, the Government
provided notice stating, “An authenticated transcript of Appellant’s arraign-
ment cannot be obtained because the audio recording of the hearing has been
4
United States v. Matthew, No. ACM 39796 (f rev)
lost and no alternatives can be located.” We now address the issue of the miss-
ing arraignment transcript.
During Appellant’s court-martial Judge Gleisner never addressed or
acknowledged that the audio recording of the 25 January 2019 hearing was
lost. It does not appear that Judge Gleisner was aware that the audio recording
was lost, and he did not attempt to take any corrective actions.
II. DISCUSSION
Appellant asserts that the record of trial (ROT) is incomplete because it
“contains omissions of the transcript of at least one [Article 39(a), UCMJ, 10
U.S.C. § 839(a),] session, containing Appellant’s arraignment.” Appellant fur-
ther argues that “if the [ROT] cannot be made accurate, the only appropriate
remedy is for this [c]ourt to affirm only a nonverbatim record sentence and
disapprove Appellant’s punitive discharge and adjudge only six months con-
finement.” In support of his argument Appellant cites the version of R.C.M.
1114(a) found in the Manual for Courts-Martial, United States (2019 ed.) (2019
MCM).5 During our initial review of this case, we determined that the tran-
script for Appellant’s arraignment was missing from the ROT. We ordered the
ROT returned to the convening authority for correction; however none was
made. As the record has not been corrected, we find the record to be substan-
tially nonverbatim.
We agree with Appellant that the ROT is incomplete and that it constitutes
a nonverbatim record. However, we disagree with Appellant as to the appro-
priate remedy. Instead, we set aside the findings and sentence and return the
case to The Judge Advocate General for return to an appropriate convening
authority for action consistent with R.C.M. 1103(f) as stated in the decretal
paragraph.
A. Law
Whether a transcript is verbatim, and a trial record complete, are ques-
tions of law we review de novo. United States v. Davenport, 73 M.J. 373, 376
(C.A.A.F. 2014) (citation omitted). “The requirement that a record of trial be
5 Appellant’s reference to the version of R.C.M. 1114(a) in the 2019 MCM is inapposite
because the charge was referred to general court-martial on 20 December 2018. See
Executive Order 13825, § 3(d) (8 Mar. 2018):
Except as otherwise provided in this order, the [Military Justice Act of
2016] shall not apply in any case in which charges are referred to trial
by court-martial before January 1, 2019. Except as otherwise provided
in this order, proceedings in any such case shall be held in the same
manner and with the same effect as if the MJA had not been enacted.
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United States v. Matthew, No. ACM 39796 (f rev)
complete and substantially verbatim in order to uphold the validity of a verba-
tim record sentence is one of jurisdictional proportion that cannot be waived.”
United States v. Henry, 53 M.J. 108, 110 (C.A.A.F. 2000) (citation omitted).
A complete record of the proceedings and testimony shall be prepared in
each general court-martial where the adjudged sentence includes, inter alia, a
discharge or, if the adjudged sentence does not include a discharge, any other
sentence which exceeds that which may be adjudged at a special court-martial.
Article 54, UCMJ, 10 U.S.C. § 854. “[T]he record of trial shall include a verba-
tim transcript of all sessions except sessions closed for deliberations and voting
when: [ ] the sentence adjudged includes confinement for twelve months or
more or any punishment that may not be adjudged by a special court-martial;
or [ ] [a] bad-conduct has been adjudged.” R.C.M. 1103(b)(2)(B); see United
States v. Gaskins, 72 M.J. 225, 230 (C.A.A.F. 2013).
R.C.M. 1103(f), Loss of notes or recordings of proceedings, states:
If, because of loss of recordings or notes, or other reasons, a ver-
batim transcript cannot be prepared when required by subsec-
tion (b)(2)(B) or (c)(1) of this rule, a record which meets the re-
quirements of subsection (b)(2)(C) of this rule shall be prepared,
and the convening authority may:
(1) Approve only so much of the sentence that could be adjudged
by a special court-martial, except that a bad-conduct discharge,
confinement for more than six months, or forfeiture of two-thirds
pay per month for more than six months, may not be approved;
or
(2) Direct a rehearing as to any offense of which the accused was
found guilty if the finding is supported by the summary of the
evidence contained in the record, provided that the convening
authority may not approve any sentence imposed at such a re-
hearing more severe than or in excess of that adjudged by the
earlier court-martial.
R.C.M. 1104(d)(2), Procedure, states:
An authenticated record of trial believed to be incomplete or de-
fective may be returned to the military judge or summary court-
martial for a certificate of correction. The military judge or sum-
mary court-martial shall give notice of the proposed correction
to all parties and permit them to examine and respond to the
proposed correction before authenticating the certificate of cor-
rection. All parties shall be given reasonable access to any orig-
inal reporter’s notes or tapes of the proceedings.
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United States v. Matthew, No. ACM 39796 (f rev)
R.C.M. 904 states in its entirety that an “[a]rraignment shall be conducted
in a court-martial session and shall consist of reading the charges and specifi-
cations to the accused and calling on the accused to plead. The accused may
waive the reading.” (Emphasis added).
Whether an omission from a record of trial is substantial is a question of
law we review de novo. United States v. Stoffer, 53 M.J. 26, 27 (C.A.A.F. 2000).
“Verbatim” for the purposes of a court-martial transcript does not mean word
for word, but that the transcript be substantially verbatim. Davenport, 73 M.J.
at 377 (quoting United States v. Lashley, 14 M.J. 7, 8 (C.M.A. 1982)). “[T]he
threshold question is whether the omitted material was substantial, either
qualitatively or quantitatively.” Id. (internal quotation marks omitted) (quot-
ing Lashley, 14 M.J. at 9). “Omissions are quantitatively substantial unless
‘the totality of omissions . . . becomes so unimportant and so uninfluential
when viewed in the light of the whole record, that it approaches nothingness.’”
Id. (alteration in original) (quoting United States v. Nelson, 3 C.M.A. 482, 13
C.M.R. 38, 43 (C.M.A. 1953)). We must approach the question of what consti-
tutes a substantial omission on a case-by-case basis. United States v. Abrams,
50 M.J. 361, 363 (C.A.A.F. 1999) (citation omitted).
Nonverbatim transcript errors are not tested for prejudice:
if there is not a verbatim transcript, there is also no “complete
record.” R.C.M. 1103(b)(2)(D). However, while in the case of
most incomplete records prophylactic measures are not pre-
scribed, and the missing material or remedy for same are tested
for prejudice, where the record is incomplete because the tran-
script is not verbatim, the procedures set forth in R.C.M. 1103(f)
control.
Davenport, 73 M.J. at 377 (citation omitted).
“If a military judge fails to cure a substantial omission and a nonverbatim
transcript results, R.C.M. 1103(f)[ ] is triggered and the remedy lies within the
sole discretion of the convening authority.” United States v. Tate, __ M.J. __,
No. 21-0235, 2022 CAAF LEXIS 381, at *21 (C.A.A.F. 23 May 2022).
B. Analysis
The military judge’s sentence which includes a dishonorable discharge and
confinement for 17 months requires that the transcript be verbatim. R.C.M.
1103(b)(2)(B). In order for the transcript to be verbatim, it must include “all
proceedings including sidebar conferences, arguments of counsel, and rulings
and instructions by the military judge.” R.C.M. 1103(b), Discussion; see also
Tate, 2022 CAAF LEXIS 381, at *8. After our initial review, we granted the
Government’s requested relief and returned the record for correction. The rec-
ord was returned to us with the Government’s explanation the record could not
7
United States v. Matthew, No. ACM 39796 (f rev)
be corrected for the reason stated above. As a result, the transcript before us
does not include the initial Article 39(a), UCMJ, session, arraigning the Appel-
lant on 25 January 2019. While the record contains references to this initial
Article 39(a) session, this initial session is missing from the record. The record
before us does not include Appellant being advised of his right to counsel or
forum rights, R.C.M. 903(a), as he declined to be re-advised of those rights by
Judge Gleisner.
Considering the threshold question—whether the omitted material was
qualitatively or quantitatively substantial—we find the omission resulting
from the lost audio recording to be quantitatively substantial. See Tate, 2022
CAAF LEXIS 381, at *8–9 (citations omitted). The omission is not “so unim-
portant and so uninfluential when viewed in the light of the whole record, that
it approaches nothingness.” Davenport, 73 M.J. at 377 (quoting Nelson, 3
C.M.A. at 486). The omitted matter includes the arraignment, which is a sig-
nificant event in the progress of a court-martial with certain requirements. See
R.C.M. 707(b)(1); R.C.M. 904; United States v. Doty, 51 M.J. 464, 465 (C.A.A.F.
1999). In addition, we are unable to review the sufficiency of Appellant’s ad-
visement of his rights to counsel and forum selection, as well as any other mat-
ters that might have arisen in the 25 January 2019 Article 39(a) session.
The Government argues that even if it is assumed that the transcript in
this case is not substantially verbatim, then the Government may rebut a pre-
sumption of prejudice. The Government’s answer contends there is an “absence
of any presumed or actual prejudice” to Appellant. As we have determined the
record is incomplete because the transcript is not verbatim, contrary to the
Government’s argument, we do not test for prejudice, and “the procedures set
forth in R.C.M. 1103(f) control.” Davenport, 73 M.J. at 377 (citation omitted).
Our esteemed dissenting colleague contends that “had the trial judge in
Appellant’s case known that the initial Article 39(a) session would not be tran-
scribed, his reference to that session and his repetition of what commonly tran-
spires at such a session could be considered a combination of two remedial ac-
tions: reconstruction and ‘starting anew.’” We do not find the trial judge took
any action which qualifies as remedial action, let alone, a combination of re-
medial actions.
Unlike our colleague, we do not find the missing Article 39(a) session was
reconstructed when Appellant agreed with Judge Gleisner that he had been
arraigned. See Tate, 2022 CAAF LEXIS 381, at *12. Appellant’s acknowledge-
ment of his arraignment falls significantly short of a reconstruction of the rec-
ord. Appellant’s responses fail to contain the level of detail necessary to recon-
struct the record as we are left with significant questions as to the parties pre-
sent, and the duration and content of the missing Article 39(a) session. It is not
8
United States v. Matthew, No. ACM 39796 (f rev)
surprising that Judge Gleisner’s questioning of Appellant lacks sufficient de-
tail to reconstruct the record as he was unaware that anything was amiss with
the record.
Likewise, if we assume “starting anew” was an available remedy, we do not
find, as our colleague does, Judge Gleisner “started anew.” See Id. at *13–14.
Contrary to any apparent intent to “start anew,” Judge Gleisner relied upon
advisements to Appellant which occurred in a previous Article 39(a) session
and he did not fully re-advise Appellant of his various rights. We also find it
significant that Judge Gleisner did not express he was disregarding the initial
Article 39(a) session and starting the trial over from the beginning. In order to
“start anew,” a military judge must, at a minimum, announce he is calling the
judicial equivalent of a mulligan. See id. Judge Gleisner never expressed he
was taking remedial action in the form of reconstruction or “starting anew” to
account for the lost recording. Unlike our colleague, we do not find the record
supports recasting what took place at trial as remedial action.
When faced with the loss of a recording which prevents the preparation of
a verbatim transcript, under the state of the law reflected in the 2016 Manual
for Courts-Martial and applicable in this case, a convening authority enters
into a catch-22 scenario. The Court of Appeals for the Armed Forces (CAAF)
recently addressed this conundrum in Tate. 2022 CAAF LEXIS 381, at *21–23.
After finding a nonverbatim transcript, resulting from the failure of the court’s
recording device during the appellant’s sentencing hearing, was not properly
remedied, the CAAF stated:
Despite the discretionary language of R.C.M. 1103(f) (2016 ed.),
Article 60(c)(4)(A), UCMJ, 10 U.S.C. § 860(c)(4)(A) (2012 &
Supp. IV 2013-2017) presents a procedural limitation. Article
60(c)(4)(A), UCMJ, states, “the convening authority . . . may not
disapprove, commute, or suspend in whole or in part an ad-
judged sentence of confinement for more than six months or a
sentence of dismissal, dishonorable discharge, or bad conduct
discharge.” As a result, we set aside Appellant’s sentence and
remand to [T]he Judge Advocate General of the Army for return
to an appropriate convening authority for action con-
sistent with R.C.M. 1103(f) (2016 ed.).
Id. at *22–23; see also United States v. Steele, ARMY 20170303, 2019 CCA
LEXIS 95 (A. Ct. Crim. App. 5 Mar. 2019) (unpub. op.) (setting aside the sen-
tence and returning the record for action consistent with R.C.M. 1103(f) due to
substantial omission from the verbatim record during sentencing proceedings).
9
United States v. Matthew, No. ACM 39796 (f rev)
The nonverbatim transcripts in Tate and Steele were limited to the sentenc-
ing phase of the trial. However, when faced with a nonverbatim record result-
ing from an omission that affected findings, in addition to sentencing, our sis-
ter court set aside all of the findings of guilty and the sentence before returning
the case to the convening authority for action consistent with R.C.M. 1103(f)(2).
United States v. Bruner, ARMY 20190276, 2020 CCA LEXIS 267, *8–9 (A. Ct.
Crim. App. 12 Aug. 2020) (unpub. op.), rev. denied, ___ M.J. ___, No. 22-0053,
2022 CAAF LEXIS 308 (C.A.A.F. 26 Apr. 2022). We are similarly faced with
an omission which is not limited to the sentencing proceedings. Considering
the circumstances in this case, we find the appropriate remedy is to set aside
the findings and sentence and return to the case to The Judge Advocate Gen-
eral for return to an appropriate convening authority for action consistent with
R.C.M. 1103(f).
III. CONCLUSION
The findings and sentence are SET ASIDE. The record of trial is returned
to The Judge Advocate General for return to an appropriate convening author-
ity for action consistent with R.C.M. 1103(f).
RICHARDSON, Judge (dissenting):
I disagree with my esteemed colleagues in the majority that the transcript
in this case is not substantially verbatim. I would find the military judge effec-
tively remedied the omission. Therefore, I respectfully dissent.
I. DISCUSSION
A. Substantial Omission
1. Law
“In assessing either whether a record is complete or whether a transcript
is verbatim, the threshold question is ‘whether the omitted material was sub-
stantial, either qualitatively or quantitatively.’” United States v. Davenport, 73
M.J. 373, 377 (C.A.A.F. 2014) (citation omitted) (quoting United States v. Lash-
ley, 14 M.J. 7, 9 (C.M.A. 1982)).
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United States v. Matthew, No. ACM 39796 (f rev)
When the record is incomplete due to a nonverbatim record, we do not test
for prejudice; “the procedures in R.C.M. 1103(f) control.” Id. (citing United
States v. Gaskins, 72 M.J. 225, 230–31 (C.A.A.F. 2013)).1
2. Background and Analysis
We do not know with certainty whether the initial Article 39(a), UCMJ, 10
U.S.C. § 839(a), session of Appellant’s court-martial was ever recorded. We
know from reviewing the record that this session was not transcribed and made
part of the record of trial, and the Government has failed to cure this defi-
ciency.2 Without the transcript of the initial Article 39(a) session we do not
know: who besides Appellant and a military judge was present; who Appellant
wanted to represent him at the arraignment; and whether any parties were
qualified, certified, and sworn. Those are important facts to state for the rec-
ord, but they are insubstantial in this context. I conclude that the omission of
a transcript of the initial Article 39(a) session was not substantial and was
remedied by the trial judge.
The record indicates that on 25 January 2019, at the initial Article 39(a)
session: (1) Appellant was advised of his rights to counsel; (2) Appellant was
advised of his forum rights; (3) Appellant deferred entry of pleas; (4) Appellant
deferred entry of forum; (5) no exhibits were admitted;3 and (6) Appellant was
arraigned. The same day as the arraignment, the trial judge held a conference
with counsel to discuss expected issues in the case, and summarized this con-
ference in Appellate Exhibit I, his scheduling order. In this order, the trial
judge set due dates for motions and other milestones. Neither at this confer-
ence nor at trial did Appellant or the Government refer to anything else of
1 Rule for Courts-Martial (R.C.M.) 1103(f) placed limits on the scope of a sentence the
convening authority could approve in a case with a non-verbatim transcript. See Man-
ual for Courts-Martial, United States (2016 ed.). R.C.M. 1103 was revised and renum-
bered R.C.M. 1112; those changes apply to cases with offenses referred after 1 January
2019, so do not apply to Appellant’s case. See Executive Order 13,825, § 5, 83 Fed. Reg.
9889 (8 Mar. 2018). Notably, the limitations in R.C.M. 1103(f) are no longer present.
See Manual for Courts-Martial, United States (2019 ed.).
2 I come to this conclusion even though the record of trial includes documents indicat-
ing that on 20 September 2019, the assistant trial counsel certified that he reviewed
the transcript in this case and “determine[d] it to be accurate and complete;” and on
27 September 2019, the trial judge “authenticate[d] the Record of Trial in accordance
with [R.C.M.] 1104.”
3 All appellate, prosecution, and defense exhibits in the record of trial were marked,
offered, or admitted during the court-martial beginning in June 2019, and those exhib-
its are identified consecutively beginning with “I,” “1,” and “A,” respectively.
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United States v. Matthew, No. ACM 39796 (f rev)
substance occurring at this initial Article 39(a) session. The charge sheet in
this case was not amended in any way.
During the initial trial Article 39(a) session, the Government announced
the convening orders—and asserted they would be inserted at that point in the
record; that the charges were properly referred to the court for trial and were
served on Appellant on 16 January 2019; the five-day statutory waiting period
had expired; who was present; who detailed trial counsel and assistant trial
counsel; whether trial counsel and assistant trial counsel were qualified, certi-
fied, and sworn; and that no member of the Prosecution had acted in any man-
ner which might tend to disqualify them in the court-martial. The military de-
fense counsel announced by whom he was detailed; that he was qualified, cer-
tified, and sworn; and that he had not acted in any manner which might tend
to disqualify him in Appellant’s court-martial. One of the civilian defense coun-
sel announced that he and Appellant’s other civilian defense counsel were
members in good standing with their state bars and neither acted in any man-
ner which may tend to disqualify them. The military judge swore in the assis-
tant trial counsel and both civilian defense counsel. The military judge as-
serted he was not aware of any grounds for challenge against him, and allowed
the trial counsel to question him about the nature of his relationship with the
civilian defense counsel. The military judge announced that “[c]ounsel on both
sides appear to have the requisite qualifications and all personnel required to
be sworn have been sworn.”
Immediately afterwards, the military judge ascertained from Appellant
that he did not want to be re-advised of his rights to forum, and that he under-
stood his choices regarding forum. Appellant elected to be tried by military
judge. Before approving Appellant’s request, the military judge ascertained
that Appellant’s choice was voluntary, and that he understood he was giving
up the right to be tried by a court composed of members. The military judge
then called on Appellant for pleas, and Appellant’s counsel entered his pleas of
guilty, including to a lesser-included offense.
In my view, the trial judge remedied the omission in the transcript by con-
ducting an Article 39(a) session that covered most of what normally occurs at
an arraignment session, and the parties proceeded as if there were no errors
with Appellant’s arraignment. Defects in the arraignment may be waived.4 In
United States v. Lichtsinn, 32 M.J. 898, 899 (A.F.C.M.R. 1991), the military
judge called upon the accused for pleas, but did not direct the reading of the
4 See Garland v. Washington, 232 U.S. 642, 646–47 (1914) (holding errors in arraign-
ment may be waived and do not warrant reversal when other due process requirements
are met, and opining a contrary holding would be an unnecessary “technical enforce-
ment of formal rights”).
12
United States v. Matthew, No. ACM 39796 (f rev)
charges as required by R.C.M. 904. “The parties clearly proceeded as if there
had been an arraignment, a formal plea was entered, and there was no objec-
tion to the defective process at trial.” Id. In this case, Appellant was arraigned
on 25 January 2019. On 19 June 2019, at the initial trial Article 39(a) session,
the military judge called on Appellant for pleas, as is done during an arraign-
ment. While the trial judge did not ensure the charges were read, or obtain
Appellant’s waiver, such “error in the arraignment process” may be waived. Id.In the present case, even if the arraignment was deficient, Appellant waived
the errors at trial and proceeded “as if there had been an arraignment.” Id.That the transcript of Appellant’s initial arraignment is not in the record of
trial is insubstantial.
While we cannot know how long the initial Article 39(a) session was, we
know the duration of the initial trial Article 39(a) session. The beginning of the
trial to when pleas were entered comprise 10 pages of the 171-page tran-
script—this includes marking appellate exhibits. I have no reason to believe
the un-transcribed Article 39(a) session was significantly longer. What we
would expect to happen at an initial Article 39(a) session happened at trial,
and what did not happen at trial, Appellant waived any error therefrom.
B. Remedy
1. Law
In United States v. Tate, the CAAF considered whether the transcript of
the appellant’s trial was verbatim when the “court’s recording device had failed
to capture the previous day’s sentencing proceedings” and the military judge
purported to start the sentencing proceedings “anew.” __ M.J. __, No. 21-0235,
2022 CAAF LEXIS 381, at *3–4 (C.A.A.F. 23 May 2022). The CAAF employed
a two-part analysis: “First, . . . decide whether the transcript was substantially
verbatim” and “if it is not, . . . decide whether the military judge’s remedy upon
discovering the recording malfunction was proper and sufficient such that it
resulted in a substantially verbatim transcript.” Id. at *7. “In the absence of
any guidance from the Rules, military courts have long authorized three po-
tential solutions when court recording devices fail: (1) declaring a mistrial; (2)
reconstructing the record of trial; and (3) starting anew.” Id. at *2. In Tate, the
CAAF found the military judge did not actually start anew; he announced he
would not consider aggravation testimony that was not presented in the unre-
corded portion, but did not state what that testimony was.
2. Background and Analysis
Had the trial judge in Appellant’s case known that the initial Article 39(a)
session would not be transcribed, his reference to that session and his repeti-
tion of what commonly transpires at such a session could be considered a com-
bination of two remedial actions: reconstruction and “starting anew.” The bulk
13
United States v. Matthew, No. ACM 39796 (f rev)
of the initial trial Article 39(a) session—as described in great detail above—
was starting anew. The reconstruction was when Appellant agreed with the
trial judge that Appellant had been arraigned, had been notified of his rights
to counsel, and had been notified of his forum choices. In Appellant’s case, the
initial Article 39(a) session was of no consequence. Arraignment has legal ef-
fects, but those were not, and are not, at issue in this case.
But because a session of low significance in this case was not transcribed,
the majority reads the law to require this court conclude the transcript is not
substantially verbatim, and return the case to the convening authority and
authorize a rehearing on findings and sentence. I am not convinced Davenport
and Tate require this result. No rulings, argument, testimony, evidence, or an-
ything else material to Appellant’s case is missing from this record of trial.
Appellant pleaded guilty and satisfied the military judge that he was in fact
guilty of the offenses to which he pleaded guilty. If the initial Article 39(a) ses-
sion had not happened, and Appellant’s trial progressed as if it had, I am con-
fident we would find the record was complete and there was no prejudicial er-
ror to Appellant’s substantial rights. In this case, the trial judge’s actions were
remedial in effect and “sufficient such that it resulted in a substantially verba-
tim transcript.” See Tate, 2022 CAAF LEXIS 381, at *7. Therefore, I respect-
fully dissent.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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