United States v. Pepper ( 2020 )

This opinion is subject to administrative correction before final disposition.
Before
CRISFIELD, STEPHENS, and LAWRENCE
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Oswaldo A. PEPPER
Sergeant (E-5), U.S. Marine Corps
Appellant
No. 201900044
Decided: 29 June 2020
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judges:
Keaton H. Harrell (arraignment)
Glen R. Hines (trial)
Sentence adjudged 28 November 2018 by a general court-martial con-
vened at Marine Corps Base Camp Lejeune, North Carolina, consist-
ing of a military judge sitting alone. Sentence approved by the conven-
ing authority: reduction to E-1, confinement for 15 months, and a
dishonorable discharge.
For Appellant:
Commander Robert D. Evans, Jr., JAGC, USN
For Appellee:
Lieutenant Commander Timothy C. Ceder, JAGC, USN
Lieutenant Kurt W. Siegal, JAGC, USN
_________________________
United States v. Pepper, NMCCA No. 201900044
Opinion of the Court
This opinion does not serve as binding precedent,
but may be cited as persuasive authority under
NMCCA Rule of Practice and Procedure 30.2.
_________________________
PER CURIAM:
Appellant was convicted in accordance with his pleas of attempted sexual
abuse of a child, attempted sexual assault of a child, and attempted receipt of
child pornography, all in violation of Article 80, Uniform Code of Military
Justice [UCMJ]. 1 Appellant responded to a social media post and believed he
was communicating with a 14-year-old girl who lived with her mother and
active duty stepfather in Camp Lejeune’s family housing. For nearly three
weeks, Appellant requested naked pictures of her, sent her pictures of his
genitals, and graphically described sexual acts in which he hoped to engage
with her. Unbeknownst to Appellant, he was talking with an undercover
Naval Criminal Investigative Service [NCIS] special agent. Appellant was
apprehended when he arrived at the youth pavilion on base, intending to
execute his plan to have sex with this child in his truck.
Appellant avers in two assignments of error [AOEs] that: (1) his case
should be remanded for new post-trial processing because the Government
failed to submit a properly authenticated record for post-trial processing and
appellate review; and (2) in masquerading as a minor, the NCIS special agent
violated the terms of use of the social media application he used, thereby
entrapping Appellant. 2 Having considered this latter AOE, we find it without
merit and warranting neither discussion nor relief. 3
Concerning his first AOE, Appellant asserts his case should be remanded
for new post-trial processing because neither the military judge nor the trial
counsel who participated in the arraignment authenticated that portion of
the record of trial. According to Appellant, this constitutes an incomplete
1 10 U.S.C. § 880 (2016).
2 AOE 2 was raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982).
3 United States v. Matias, 25 M.J. 356, 363 (C.M.A. 1987).
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United States v. Pepper, NMCCA No. 201900044
Opinion of the Court
record not allowing for our review under Article 66, UCMJ. 4 We review de
novo whether a record of trial is complete. 5
When more than one military judge presides over trial proceedings, each
is required to “authenticate the record of the proceedings over which that
military judge presided . . . .” 6 Here, there were two different military judges.
The first conducted only the arraignment, covering 9 pages with reserved
forum choice and pleadings. The second presided over the remaining 73 pages
of the record, consisting of substantive decisions from Appellant on these
same issues, the providence inquiry, findings, and sentencing to adjourn-
ment. However, Appellant does not challenge the authenticity or the accuracy
of the transcribed record. Nor does he allege any substantive prejudice befell
him as a result of the first military judge’s failure to authenticate the first
session of his court-martial. 7 Were this error unresolved, we would find it
harmless. 8
In response, the Government moved to attach to the record of trial an
authentication page signed by the judge who presided over the arraignment
session, and this Court granted the Government’s motion. Therefore, the
record is complete, and this alleged error is without merit.
After careful consideration of the record and briefs of appellate counsel,
we have determined that the approved findings and the sentence are correct
in law and fact and that there is no error materially prejudicial to Appellant’s
substantial rights. Arts. 59, 66, UCMJ. Accordingly, the findings and the
sentence as approved by the convening authority are AFFIRMED.
4 10 U.S.C. § 866 (2016).
5 United States v. Henry, 53 M.J. 108, 110 (C.A.A.F. 2000).
6 Rule for Courts-Martial 1104(a)(2)(A).
7 See Appellant’s Brief of 2 Apr 2019 at 10 (“Sergeant Pepper has suffered preju-
dice in that he has been denied proper post-trial review.”)
8 See United States v. Merz, 50 M.J. 850, 854 (N-M. Ct. Crim. App. 1999) (“Where
the matters addressed in the brief initial session of appellant’s court-martial were
repeated by [the presiding military judge] in the next session of the court-martial,
and where the appellant has identified no errors in the record, it is not necessary to
return this case for proper authentication. ‘To hold otherwise would be to elevate
form over substance and would constitute an unnecessary interference with appel-
lant’s interest in receiving a timely review on the merits of his case.’ ”) quoting
United States v. Robinson, 24 M.J. 649 (N.M.C.M.R. 1987).
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United States v. Pepper, NMCCA No. 201900044
Opinion of the Court
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
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