United States v. First Lieutenant JEFFEREY M. FIORITO

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
KERN, ALDYKIEWICZ, and MARTIN
Appellate Military Judges
UNITED STATES, Appellee
v.
First Lieutenant JEFFEREY M. FIORITO
United States Army, Appellant
ARMY 20080535
United States Army Central Coalition Forces Land Component Command (trial)
Third Army (rehearing)
Edward J. O’Brien, Military Judge (trial)
Tiernan Dolan, Military Judge (rehearing)
Colonel Katherine Spaulding-Perkuchin, Staff Judge Advocate (trial)
Colonel Stephanie L. Stephens, Staff Judge Advocate (rehearing) (recommendation)
Colonel Walter S. Weedman, Staff Judge Advocate (rehearing) (addendum)
For Appellant: Captain Tiffany K. Dewell, JA (argued); Colonel Mark Tellitocci,
JA; Lieutenant Colonel Matthew M. Miller, JA; Major Bradley M. Voorhees, JA;
Captain Tiffany K. Dewell, JA (on brief); Lieutenant Colonel Jonathan F. Potter, JA;
Captain John L. Schriver, JA (on brief & reply brief following rehearing); Major
Peter Kageleiry, Jr.
For Appellee: Captain Kevin F. Sweeney, JA (argued); Colonel Norman F.J. Allen
III, JA; Lieutenant Colonel Martha C. Foss, JA; Major Sara M. Root, JA; Captain
Kevin F. Sweeney, JA (on brief); Lieutenant Colonel Amber J. Roach, JA; Major
Daniel D. Maurer, JA (on brief following rehearing).
21 May 2013
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SUMMARY DISPOSITION ON FURTHER REVIEW
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Per Curiam:
On 3 March 2011, this court set aside the findings and sentence in this case
and authorized a rehearing. United States v. Fiorito, ARMY 20080535, 2011 WL
779922 (Army Ct. Crim. App. 3 Mar. 2011) (mem. op.). At the rehearing, an officer
panel convicted appellant, contrary to his pleas, of two specifications of failure to
obey a lawful regulation and assault upon a commissioned officer, in violation of
Articles 92 and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 928 (2006)
FIORITO—ARMY 20080535
[hereinafter UCMJ]. The convening authority approved the adjudged sentence to
confinement for fourteen days, forfeiture of $4,000.00 pay and allowances per month
for three months, 1 and a reprimand. 2
On 12 September 2012, the record of trial was returned to this court for
further review, but the record only includes a summarized transcript of the
rehearing. On 14 March 2013, appellant moved this court to order the government to
complete a verbatim transcript. The government responded, requesting that this
court, in lieu of ordering a verbatim transcript, approve a lesser punishment. We
initially denied appellant’s motion for a verbatim transcript. Thereafter, appellant
filed a brief arguing, “[t]his court cannot affirm a special court-martial sentence in
this case unless it is first convinced that the summarized record of trial before the
court supports the findings as correct in law and fact.” Moreover, appellant argues,
the record in its current state is “replete with error.” In response, the government
acknowledges that the record does not allow for addressing the substantive errors
alleged in appellant’s brief and requests, as an alternative, that this court return the
case for completion of a verbatim transcript.
“[T]he record of trial shall include a verbatim transcript of all sessions except
sessions closed for deliberations and voting when [a]ny part of the sentence
adjudged exceeds six months confinement, forfeiture of pay greater than two-thirds
pay per month, or any forfeiture of pay for more than six months. . . .” R.C.M.
1103(b)(2)(B) (emphasis added). UCMJ art. 54(c)(1)(A). Here, the adjudged
forfeitures included allowances and are greater than two-thirds of appellant’s pay
per month, thereby triggering the requirement for a verbatim transcript. When faced
with an incomplete record due to a summarized transcript, this court may, inter alia,
order the government to complete a verbatim transcript, or simply approve a
sentence not in excess of the limits of R.C.M. 1103(b)(2) and Article 54(c)(1),
UCMJ. See United States v. Gaskins, 69 M.J. 569, 571 (Army Ct. Crim. App. 2010)
(en banc). Under the unique facts of this case, we decline to apply the “pragmatic
solution” of approving a lesser form of punishment. United States v. Thompson, 47
M.J. 134, 135 (A.C.M.R. 1973). Therefore, we agree with the parties and order the
record to be returned for completion of a verbatim transcript.
1
Appellant’s pay at the time of trial, as indicated by the charge sheet, was $5,222.40
per month. “When an accused is not serving confinement, the accused should not be
deprived of more than two-thirds pay for any month as a result of one or more
sentences by court-martial . . . unless requested by the accused.” Rule for Courts-
Martial [hereinafter R.C.M.] 1107(d)(2) discussion. See United States v. Warner, 25
M.J. 64 (C.M.A. 1987).
2
Appellant alleges and the government concedes that a portion of the reprimand
refers to conduct of which appellant was acquitted and should be deleted from the
reprimand.
2
FIORITO—ARMY 20080535
CONCLUSION
The action of the convening authority, dated 30 July 2012, is set aside. The
record of trial is returned to The Judge Advocate General for the following to be
accomplished by the same or a different convening authority: (1) completion of a
verbatim transcript; (2) authentication of the record of trial in accordance with
Article 54(a), UCMJ; (3) a new staff judge advocate recommendation (SJAR); (4)
service of the SJAR and authenticated record; (5) processing of post-trial
submissions, if any, in accordance with R.C.M. 1105 and 1106; (6) a new action in
accordance with Article 60(c)–(e), UCMJ; and (7) return to this court for review
pursuant to Article 66, UCMJ.
FOR THE
FOR THECOURT:
COURT
MALCOLM H. SQUIRES, JR.
MALCOLM
Clerk of Court H. SQUIRES, JR.
Clerk of Court
3