United States v. Private First Class MARIO J. LARAGUILLEN

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
TOZZI, CAMPANELLA, and CELTNIEKS
Appellate Military Judges
UNITED STATES, Appellee
v.
Private First Class MARIO J. LARAGUILLEN
United States Army, Appellant
ARMY 20150516
Headquarters, 7th Infantry Division
Samuel A. Schubert, Military Judge (arraignment)
Kenneth W. Shahan, Military Judge (trial)
Colonel Robert F. Resnick, Staff Judge Advocate
For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Captain Heather L.
Tregle, JA; Captain Michael A. Gold, JA (on brief).
For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major John K. Choike, JA; Captain Scott L. Goble, JA (on brief).
25 May 2016
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SUMMARY DISPOSITION
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CAMPANELLA, Judge:
A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of rape of a child in violation of Article
120b of the Uniform Code of Military Justice, 10 U.S.C. § 920b (2012) [hereinafter
UCMJ]. The military judge sentenced appellant to a dishonorable discharge, twenty
months confinement, and reduction to the grade of E-1. Pursuant to a pretrial
agreement, the convening authority approved only so much of the sentence as
provides for a dishonorable discharge, eighteen months confinement, and a reduction
to the grade of E-1. Appellant was credited with one day of pretrial confinement
credit against his sentence.
This case is before us for review pursuant to Article 66, UCMJ. Appellate
counsel raises one assignment of error, which requires discussion but no relief. We
find the issues raised by appellant, pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982) to be meritless.
LARAGUILLEN — ARMY 20150516
BACKGROUND
At trial, defense offered Defense Exhibits E and F, presentencing letters of
support, into evidence. Both of these exhibits were written in Spanish. The exhibits
were translated by an interpreter and read on the record in English to the court
during sentencing. The military judge later entered the exhibits into evidence.
The exhibits were properly attached to the record of trial and the transcript
states, “The interpreter read Defense Exhibit E and Defense Exhibit F for
identification to the court-martial.” The transcript of the record of trial, however,
omitted the testimony of the interpreter as he translated the exhibits in English. The
record of trial was authenticated and appellant failed to raise any error in his post-
trial matters.
On appeal, appellant asserts the omission of the interpreter’s translation on
the record for Defense Exhibits E and F renders the transcript nonverbatim and the
record of trial incomplete, necessitating relief under Rule for Courts-Martial
[hereinafter R.C.M.] 1103(f). Subsequent to the filing of appellate briefs, we
granted the government’s motion to attach the transcribed audio recorded testimony
from appellant’s court-martial to the record of trial. The translated testimony
constitutes three pages of transcript. The substance of Defense Exhibits E and F is
that appellant is a “great friend” who was helpful at work.
LAW AND DISCUSSION
“[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. . . .” R.C.M. 1103(b)(2)(B) (emphasis
added). UCMJ art. 54(c)(1)(A). “If testimony is given through an interpreter, a
verbatim transcript must so reflect.” R.C.M. 1103(b)(2)(B), Discussion. Literal
compliance with the term “verbatim,” meaning “[w]ord for word; in the same
words,” is not required, but a “substantial” qualitative omission renders a transcript
nonverbatim. United States v. Lashley, 14 M.J. 7, 8 (C.M.A. 1982). A substantial
omission will raise a presumption of prejudice but it can be rebutted by
reconstituting the omitted portion of the record. United States v. Harrow, 62 M.J.
649, 654-55 (A.F. Ct. Crim. App. 2006).
Here, appellant’s sentence exceeded six months thereby triggering the
requirement for a verbatim transcript. Under the circumstances, the record of trial is
verbatim because the Defense Exhibits E and F were included in the record of trial
and the transcript indicated the exhibits were translated to the judge by the
interpreter. Rule for Courts-Martial 1103 requires a verbatim transcript but not
necessarily a Spanish to English translation.
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LARAGUILLEN — ARMY 20150516
Even if we were to find a substantial omission rendering the transcript
nonverbatim, the government subsequently provided the actual transcribed audio
recorded testimony rebutting any presumption of prejudice. After reviewing the
transcribed audio recorded testimony, we are convinced that the omission of the
English translation was not a substantial omission and it did not prejudice appellant
or deny his opportunity for clemency.
CONCLUSION
Upon consideration of the entire record, the findings of guilty and the
sentence as approved by the convening authority are AFFIRMED.
Senior Judge TOZZI and Judge CELTNIEKS concur.
FOR
FORTHE
THECOURT:
COURT:
MALCOLMH.
MALCOLM H.SQUIRES,
SQUIRES,JR.
JR.
ClerkofofCourt
Clerk Court
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