United States v. Allende , 2008 CAAF LEXIS 321 ( 2008 )

UNITED STATES, Appellee
v.
Gilbert T. ALLENDE, Mess Management Specialist Second Class
U.S. Navy, Appellant
No. 06-0908
Crim. App. No. 200001872
United States Court of Appeals for the Armed Forces
Argued January 16, 2008
Decided March 12, 2008
EFFRON, C.J., delivered the opinion of the Court, in which
BAKER, ERDMANN, STUCKY, and RYAN, JJ., joined.
Counsel
For Appellant: Lieutenant Kathleen L. Kadlec, JAGC, USN
(argued); Lieutenant Richard H. McWilliams, JAGC, USN (on
brief).
For Appellee: Captain Geoffrey S. Shows, USMC (argued);
Lieutenant Commander Paul D. Bunge, JAGC, USN, Lieutenant
Timothy H. Delgado, JACG, USN, Major Kevin C. Harris, USMC, and
Major Brian K. Keller, USMC (on brief).
Military Judge: Stephen Jamrozy
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Allende, No. 06-0908/NA
Chief Judge EFFRON delivered the opinion of the Court.
A general court-martial composed of officer and enlisted
members, convicted Appellant, contrary to his pleas, of
violating a lawful order, larceny (four specifications), and
obtaining services by false pretenses, in violation of Articles
92, 121, and 134, Uniform Code of Military Justice (UCMJ), 10
U.S.C. §§ 892, 921, 934 (2000). The sentence adjudged by the
court-martial and approved by the convening authority included a
bad-conduct discharge, confinement for one year, forfeiture of
all pay and allowances, and reduction to the lowest enlisted
grade. The United States Navy-Marine Corps Court of Criminal
Appeals affirmed the findings. In light of the post-trial
delay, the court reduced the sentence as a matter of sentence
appropriateness, approving only that portion providing for a
bad-conduct discharge, confinement for nine months, and
reduction to the lowest enlisted grade. United States v.
Allende, No. 200001872, 2006 CCA LEXIS 167, 2006 WL 4572995 (N-
M. Ct. Crim. App. July 11, 2006) (unpublished).
On Appellant’s petition, we granted review of the following
issues:
I. WHETHER THE LOWER COURT PROPERLY
EVALUATED PREJUDICE AFTER IT FOUND THAT
THE TRIAL COUNSEL ERRONEOUSLY
AUTHENTICATED THE RECORD.
II. WHETHER THE LOWER COURT ERRED IN
FINDING NO DUE PROCESS VIOLATION WHERE
2
United States v. Allende, No. 06-0908/NA
2,484 DAYS ELAPSED BETWEEN THE
ADJOURNMENT OF APPELLANT’S TRIAL AND
COMPLETION OF ARTICLE 66, UCMJ, REVIEW,
INCLUDING 734 DAYS IN PANEL.
For the reasons set forth below, we affirm.
I. AUTHENTICATION OF THE RECORD
A. BACKGROUND
The present appeal involves procedures for authentication
of the record set forth in the UCMJ and the Manual for Courts-
Martial. Article 54(a) requires each general court-martial to
keep a record of the proceedings. Article 54(a), UCMJ, 10
U.S.C. § 854(a) (2000). Under the direction of the military
judge, the trial counsel makes arrangements for preparation of
the record. Article 38(a), UCMJ, 10 U.S.C. § 838(a) (2000);
Rule for Courts-Martial (R.C.M.) 1103(b)(1). The trial counsel
examines the record and makes any necessary corrections. R.C.M.
1103(i)(1)(A). During this process, the trial counsel permits
the defense counsel to examine the record “[e]xcept when
unreasonable delay will result.” R.C.M. 1103(i)(1)(B).
A “complete record of the proceedings,” including a
verbatim written transcript, must be prepared for each general
court-martial in which the sentence includes a punishment of the
type at issue in the present appeal. Article 54(c)(1)(A), UCMJ;
R.C.M. 1103(b)(2)(B). Substantial omissions from the record
3
United States v. Allende, No. 06-0908/NA
create a presumption of prejudice that may be rebutted by the
government. United States v. Stouffer, 53 M.J. 26, 27 (C.A.A.F.
2000); Manual for Courts-Martial, United States, Analysis of the
Rules for Courts-Martial app. 21 at A21-81 (2005 ed.).
The military judge authenticates the record of each general
court-martial. Article 54(a), UCMJ; R.C.M. 1104(a)(1). Trial
counsel may authenticate the record if the military judge cannot
do so “by reason of his death, disability, or absence.” Article
54(a), UCMJ. In circumstances not pertinent to the present
case, there are other options for substitute authentication.
Article 54(a), UCMJ; R.C.M. 1104(a)(2)(B). The person who
authenticates the record of trial in the absence of the military
judge “should attach to the record of trial an explanation for
the substitute authentication.” R.C.M. 1104(a)(2)(B)
Discussion. Any deficiency with respect to explaining the need
for substitute authentication is tested for prejudice under a
harmless error standard of review. United States v. Ayers, 54
M.J. 85, 92 (C.A.A.F. 2000).
B. THE RECORD OF TRIAL
1. Appellant’s court-martial
During Appellant’s trial, the recording equipment
malfunctioned at a number of points. The record of trial
omitted portions of three sessions under Article 39(a), UCMJ, 10
U.S.C. § 839(a) (2000). The first concerned the sufficiency of
4
United States v. Allende, No. 06-0908/NA
the evidence on the charge of obtaining services by false
pretenses, and the trial schedule; the second involved the
question of whether a machete is a dangerous weapon, and the
third involved a discussion of instructions on findings. The
record also did not contain Appellant’s written motion for an
expert consultant and the Government’s response to Appellant’s
motion.
Trial counsel certified that she had “made all necessary
corrections to this record of trial” and authenticated the
record “because of [the] absence of the military judge.”
Defense counsel received a copy of the record prior to
authentication, and did not submit any corrections. Defense
counsel did not submit a request for correction, Article 38(c),
UCMJ, nor did Appellant present any legal issues concerning the
record’s accuracy in his clemency petition.
2. Review by the Court of Criminal Appeals
Appellant raised two assignments of error regarding the
record of trial at the Navy-Marine Corps Court of Criminal
Appeals: whether the record of trial contained substantial
omissions creating a rebuttable presumption of prejudice, and
whether trial counsel erroneously authenticated the record of
trial without properly explaining the military judge’s absence.
5
United States v. Allende, No. 06-0908/NA
a. Omissions from the record
The Court of Criminal Appeals concluded that, despite the
omissions, there was enough information on the record to
conclude that three of the four omissions were insubstantial
because the record contained sufficient information on each of
the matters at issue. The court found the omitted discussion of
the proposed instructions involved a substantial omission,
thereby raising the presumption of prejudice. The court noted
that Appellant did not claim that the record omitted any
objections to instructions, that the record omitted a request
for instructions, or that the military judge erred in the
instructions actually given. The court then reviewed the
instructions contained in the record and concluded that there
was no instructional error. Under these circumstances, the
court concluded that the presumption of prejudice was rebutted
by the record of trial and that the record was substantially
verbatim.
b. Substitute authentication
The Court of Criminal Appeals noted that the only reason
set forth in the record for substitute authentication was trial
counsel’s statement that she had authenticated the record
“because of [the] absence of the military judge.” The court
concluded that because this statement did not provide sufficient
information to determine whether substitute authentication was
6
United States v. Allende, No. 06-0908/NA
appropriate, the authentication was erroneous. The court
further determined that the error was harmless because: (1) the
record was substantially verbatim; (2) Appellant’s counsel
received an opportunity to comment on any corrections prior to
authentication; (3) Appellant did not raise any legal issues
concerning the record’s accuracy prior to the convening
authority’s action; and (4) Appellant did not allege on appeal
that the record was inaccurate.
C. DISCUSSION
In his petition to this Court, Appellant requested review
of numerous issues, including the propriety of the lower court’s
ruling that the record was substantially verbatim and that
Appellant was not prejudiced by the erroneous authentication of
the record. We found good cause to grant review only on the
issue of authentication, as well as a separate issue involving
appellate delay. United States v. Allende, 65 M.J. 345(C.A.A.F. 2007). The subsequent filings of the parties do not
require us to revisit our decision to deny review of the
question as to whether the record was substantially verbatim;
nor do the filings require us to question the decision by the
court below that the substitute authentication was in error. In
that posture, the question before us on Issue I is whether the
lower court, having decided that the record is substantially
verbatim, erred in its analysis of prejudice with respect to the
7
United States v. Allende, No. 06-0908/NA
substitute authentication. The lower court’s ruling on
prejudice is a question of law that we review de novo. See
United States v. Gunkle, 55 M.J. 26, 30 (C.A.A.F. 2001).
The issue in the present case involves authentication by
trial counsel, one of the officials designated by Article 54(a),
UCMJ, as eligible to authenticate the record in a substitute
capacity. The error found by the lower court involved the
adequacy of the explanation for use of a substitute authority.
We do not have before us a question of authentication by a
person outside the ambit of persons authorized to act as
substitutes under Article 54(a), UCMJ, and R.C.M. 1104. As
such, the burden is on Appellant to demonstrate prejudice.
Appellant has not demonstrated that the error regarding the
explanation for using a substitute produced an inaccurate
record, or otherwise prejudiced his right to submit a brief
under Article 38, UCMJ, to obtain post-trial clemency under
Article 60, UCMJ, to present an issue to the Court of Criminal
Appeals under Article 66, UCMJ, or to raise an issue of law
before our Court. In short, he has not demonstrated material
prejudice to his substantial rights under Article 59(a), UCMJ,
10 U.S.C. § 859(a) (2000).
8
United States v. Allende, No. 06-0908/NA
II. APPELLATE DELAY
In the second granted issue, Appellant asserts that he was
denied his due process right to speedy review and appeal. See
United States v. Moreno, 63 M.J. 129, 135-41 (C.A.A.F. 2006)
(applying the factors identified in Barker v. Wingo, 407 U.S.
514 (1972), to assess: (1) the length of the delay; (2) the
reasons for the delay; (3) the appellant’s assertion of the
right to timely review and appeal; and (4) prejudice). The
present case involves a seven-year delay between adjournment of
Appellant’s court-martial and resolution of his Article 66,
UCMJ, appellate review. In light of the lengthy delay, and the
focus of the parties on prejudice, we shall assume error and
proceed directly to the question of whether any error was
harmless beyond a reasonable doubt. See United States v.
Allison, 63 M.J. 365, 370-71 (C.A.A.F. 2006).
Appellant has not suffered ongoing prejudice in the form of
oppressive incarceration, undue anxiety, or the impairment of
the ability to prevail in a retrial. Moreover, because we do
not find the substantive grounds of Appellant’s appeal as to the
first granted issue meritorious, Appellant has not suffered
detriment to his legal position in the appeal as a result of the
delay. See Moreno, 63 M.J. at 139.
Appellant asserts prejudice on the grounds that his ability
to obtain employment has been impaired because he has not been
9
United States v. Allende, No. 06-0908/NA
able to show employers a Department of Defense Form 214 (DD-
214), the certificate of release from active duty. The
appellate delay has delayed completion of appellate review,
thereby precluding issuance of a DD-214. According to
Appellant, a number of potential civilian employers were
unwilling to consider him because he could not provide them with
a DD-214.
Appellant’s affidavit asserts that four employers declined
to consider him for employment in the period of August-October
2000, approximately a year after his trial was completed, and
that two employers declined to consider him for employment for
that reason in 2007. Appellant has not provided documentation
from potential employers regarding their employment practices,
nor has he otherwise demonstrated a valid reason for failing to
do so. Compare United States v. Jones, 61 M.J. 80, 84-85
(C.A.A.F. 2005) (relying upon affidavits from a prospective
employer to confirm that the lack of a DD-214 caused the
employer to deny his application for employment.) In that
context, we conclude that the assumed error was harmless beyond
a reasonable doubt and note that Appellant has failed to present
any substantiated evidence to the contrary.
10
United States v. Allende, No. 06-0908/NA
III. DECISION
For the forgoing reasons, the decision of the United States
Navy-Marine Corps Court of Criminal Appeals is affirmed.
11