United States v. Aguirre-Obregon

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39005
________________________
UNITED STATES
Appellee
v.
Leonardo E. AGUIRRE OBREGON
Staff Sergeant (E-5), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 6 September 2017
________________________
Military Judge: Shelly W. Schools.
Approved sentence: Dishonorable discharge, confinement for 24 months,
forfeiture of all pay and allowances, and reduction to E-1. Sentence ad-
judged 8 December 2015 by GCM convened at Joint Base San Antonio-
Lackland, Texas.
For Appellant: Captain Allen S. Abrams, USAF.
For Appellee: Captain Sean J. Sullivan, USAF; Gerald R. Bruce, Es-
quire.
Before MAYBERRY, JOHNSON, and KIEFER, Appellate Military
Judges.
Judge KIEFER delivered the opinion of the court, in which Senior
Judges MAYBERRY and JOHNSON joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 18.4.
________________________
KIEFER, Judge:
A military judge sitting as a general court-martial convicted Appellant, con-
sistent with his pleas and a pretrial agreement (PTA), of four specifications of
United States v. Aguirre Obregon, No. ACM 39005
assault consummated by battery of children under 16 years of age, in violation
of Article 128, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 928. The
court-martial sentenced Appellant to a dishonorable discharge, confinement
for 24 months, forfeiture of all pay and allowances, and a reduction to E-1. The
convening authority approved the dishonorable discharge, confinement for 24
months, and a reduction to E-3. The convening authority also deferred the ad-
judged and mandatory forfeitures until action and waived the mandatory for-
feitures for six months after action for the benefit of Appellant’s dependent
children, pursuant to Articles 57 and 58b, UCMJ, 10 U.S.C. §§ 857, 858b.
Appellant asserts four assignments of error: (1) Whether the military judge
abused her discretion when she permitted trial counsel to present rebuttal ev-
idence based on facts that were not presented by the Defense; (2) whether the
military judge, sitting alone, committed prejudicial error by deciding, over De-
fense objection, to allow sentencing argument prohibited by United States v.
Frey, 73 M.J. 245 (C.A.A.F. 2014); (3) whether the staff judge advocate’s rec-
ommendation (SJAR) contained plain and prejudicial error by incorrectly stat-
ing the results of the court-martial proceedings; and (4) whether the transcript
is substantially non-verbatim. 1 We find no prejudicial error and affirm.
I. BACKGROUND
This case centers on allegations that Appellant physically abused young
children under his care. In 2008, Appellant lived with his girlfriend JM who
had two children. On a trip while visiting friends, Appellant found JM’s 19-
month-old daughter and three-year-old son playing with a hot glue gun. In re-
sponse, Appellant placed the tip of the hot glue gun on each child’s hand, caus-
ing blistering and scarring. 2 At trial, Appellant admitted that his actions
caused extreme pain to the children and was excessive and unnecessary be-
cause he could have simply instructed the children to stop playing with the hot
glue gun.
Appellant also has a biological son with EE. In June 2009, pursuant to a
custody arrangement, Appellant had visitation with his son every other week-
end. One day while visiting Appellant, his then-two-year-old son threw a toy.
Later that same day, the child threw food. On both occasions, Appellant re-
sponded by striking his son on the shoulder, hips, and buttocks with his hand.
When the child returned to his mother, she noticed that he did not want to sit
1 This issue is raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
2Appellant was only charged with burning the 19-month-old girl. As part of the PTA,
he agreed not to object to the introduction of evidence concerning the burning of the
three-year-old boy.
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United States v. Aguirre Obregon, No. ACM 39005
and later observed blood in his diaper. When EE confronted Appellant, he
claimed the injuries were from a bicycle accident.
EE took the child to the hospital where he was admitted as a Level II
trauma patient and remained in the hospital for three days. The medical staff
informed EE that the child’s injuries were not consistent with a bicycle acci-
dent. Based on an investigation into this incident, Appellant’s custody rights
were suspended.
During the providence inquiry, Appellant admitted that the injuries his son
sustained were part of Appellant’s effort to discipline him, but the amount of
force used was excessive and inappropriate for the circumstances.
By 2014, Appellant’s visitation rights had been restored. In December 2014,
in an attempt to discipline his then-seven-year-old son, Appellant forced the
boy to hold books in each hand with outstretched arms. When his son could no
longer hold the books and started to cry, Appellant pinched his arms leaving
significant bruising. When the child was still unable to hold the books, Appel-
lant referred to a movie they had recently watched and told his son he would
hold a lighter under his arms as further motivation to hold the books. 3 Later
that weekend, Appellant’s son was running in the house when Appellant
struck him in the chest with a partially closed fist.
A few days later, EE noticed bruising on her son’s arms and reported it to
child protective services (CPS). CPS took photographs of the injuries and coor-
dinated with law enforcement to conduct a child forensic interview. At trial,
Appellant admitted the force he used on each occasion with his son was exces-
sive and unnecessary.
Specification 1 addressed Appellant striking his son in the chest with a
partially closed fist. Specification 2 dealt with Appellant pinching his son’s
arms, and Specification 4 covered Appellant striking his son’s shoulder, hips,
and buttocks. Specification 5 addressed Appellant burning the 19-month-old
girl’s hand with a hot glue gun. At trial, Appellant pleaded guilty to Specifica-
tions 1 and 2 as charged, Specification 4 by excepting the words “and a belt,”
and Specification 5 by excepting the word “arm” and substituting the word
“hand” to describe the area burned.
3 Appellant claimed this was a joke and that his son incorrectly told authorities Appel-
lant actually held a lighter to his arm. Specification 3 alleged that Appellant burned
his son’s arms with a cigarette lighter. As part of the PTA, the Government withdrew
and dismissed Specification 3.
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United States v. Aguirre Obregon, No. ACM 39005
II. DISCUSSION
A. Sentencing Evidence
Appellant argues that it was error for the military judge to admit rebuttal
evidence from EE in sentencing regarding the fact that Appellant did not reg-
ularly exercise his custody rights, at times his son did not want to visit Appel-
lant, and the boy was often quiet and reserved after visits with his father.
We review a military judge’s decision to admit sentencing evidence for an
abuse of discretion. United States v. Eslinger, 70 M.J. 193, 197 (C.A.A.F. 2011).
Rule for Courts-Martial (R.C.M.) 1001(c)(2)(C) authorizes the Government
to rebut statements of fact in an unsworn statement. The “scope of rebuttal is
defined by evidence introduced by the other party.” United States v. Saferite,
59 M.J. 270, 274 (C.A.A.F. 2004) (quoting United States v. Banks, 36 M.J. 150,
166 (C.M.A. 1992)). “[T]he function of rebuttal evidence is to explain, repel,
counteract or disprove the evidence introduced by the opposing party.” Banks,
36 M.J. at 166 (quoting United States v. Hallum, 31 M.J. 254, 255 (C.M.A.
1990)). “[W]here a party opens the door, principles of fairness warrant the op-
portunity for the opposing party to respond, provided the response is fair and
is predicated on a proper testimonial foundation.” Eslinger, 70 M.J. at 198.
Sentencing evidence “is subject to the balancing test of Mil. R. Evid. 403.”
United States v. Manns, 54 M.J. 164, 166 (C.A.A.F. 2000). “When a military
judge conducts a proper balancing test under Mil. R. Evid. 403, the ruling will
not be overturned unless there is a ‘clear abuse of discretion.’” Id. (quoting
United States v. Ruppel, 49 M.J. 247, 250 (C.A.A.F. 1998)). However, we afford
less deference if a military judge fails to articulate their balancing analysis,
and no deference if they fail to conduct a balancing test. Id.
Here, the military judge permitted the Government to present evidence
that Appellant did not consistently exercise his custody rights, and visits with
his son were not always positive experiences for the child. The Government
offered this evidence in rebuttal to Appellant’s unsworn statement which
stated in part:
Although part of the reason I am being sentenced is for hurting
[my son], I still love him and I want to be able to see him, watch
him grow, go to sporting events, school events, and show him
that I love him. I know that I have really messed up, but I will
not give up on the chance of having a healthy and long relation-
ship with my children.
Appellant also offered several photos of his smiling son and him, thereby
giving the impression of a positive relationship between the two, and Appellant
discussed how hard he fought to obtain visitations with his son.
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United States v. Aguirre Obregon, No. ACM 39005
The child’s mother EE testified in rebuttal that Appellant only requested
visitation every other month, far less than authorized, and except for two days
before the trial in December 2015, Appellant had not requested any visitation
since September 2015. She also testified that her son would often ask if he had
to go to the visitation sessions with his father, and after the visits, the child
would be unusually quiet. The military judge ruled that this evidence was
proper rebuttal to Appellant’s unsworn statements and the claims of the posi-
tive experiences he and his son had together.
The military judge did not conduct a Mil. R. Evid. 403 balancing test. Thus,
we afford no deference to her ruling admitting this rebuttal evidence. Consid-
ering this issue de novo, we find that Appellant, through his unsworn state-
ments and other evidence, raised the circumstances of his relationship with his
son and opened the door to his visitations. EE’s rebuttal testimony was an ap-
propriate means of explaining, counteracting, or disproving Appellant’s evi-
dence and provided additional context to the relationship, and thus had proba-
tive value. We further find the potential for unfair prejudice was low, given the
evidence at issue and the fact that this was a trial before military judge alone.
We are satisfied that “the military judge was able to sort through the evidence,
weigh it, and give it appropriate weight.” Manns, 54 M.J. at 167.
Accordingly, the admission of this rebuttal evidence was not an abuse of
discretion, and we find no error.
B. Sentencing Argument
In his second assignment of error, Appellant raises six issues with regard
to trial counsel’s sentencing argument: (1) Appellant should not be punished
more harshly because he was a medical professional; (2) trial counsel stared at
Appellant throughout his argument; (3) trial counsel argued medical and sci-
entific conclusions regarding the children’s injuries and their responses to Ap-
pellant’s abuse without expert testimony; (4) trial counsel attempted to place
the military judge in the position of one of the victims; (5) trial counsel made
numerous references to Appellant’s lies; and (6) it was improper to argue that
Appellant was likely to abuse his newborn son who was not the subject of any
specifications at trial. Issues 1 and 2 drew Defense objections that the military
judge sustained. Trial defense counsel did not object to issues 3 and 4. Trial
counsel was permitted to argue issues 5 and 6 over Defense objection.
Improper argument is a question of law that we review de novo. Frey, 73
M.J. at 248. “The legal test for improper argument is whether the argument
was erroneous and whether it materially prejudiced the substantial rights of
the accused.” Id. (quoting United States v. Baer, 53 M.J. 235, 237 (C.A.A.F.
2000)). We must be “confident that [the appellant] was sentenced on the basis
of the evidence alone.” Id. (quoting United States v. Halpin, 71 M.J. 477, 480
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United States v. Aguirre Obregon, No. ACM 39005
(C.A.A.F. 2013)). When there is no objection at trial, we review a trial counsel’s
sentencing argument for plain error. Halpin, 71 M.J. at 479. Under a plain
error analysis, an appellant must show “(1) there was an error; (2) it was plain
or obvious; and (3) the error materially prejudiced a substantial right.” United
States v. Marsh, 70 M.J. 101, 104 (C.A.A.F. 2011). We consider a trial counsel’s
statements in the context of the entire court-martial. United States v. Carter,
61 M.J. 30, 33 (C.A.A.F. 2005).
Certain types of argument are generally impermissible in military practice.
For example, trial counsel may not inject into argument “irrelevant matters,
such as personal opinions and facts not in evidence.” United States v. Schroder,
65 M.J. 49, 58 (C.A.A.F. 2007). Trial counsel also may not make arguments
that “unduly . . . inflame the passions or prejudices of the court members.”
Frey, 73 M.J. at 248.
Trial counsel may not use an accused’s duty status to argue for a harsher
sentence without a specific link between the crime and the duty status. United
States v. Rhodes, 64 M.J. 630, 631 (A.F. Ct. Crim. App. 2007), aff’d, 65 M.J. 310
(C.A.A.F. 2007).
Trial counsel also may not “ask court members to place themselves in the
shoes of the victim or a near relative.” Id.; see also Marsh, 70 M.J. at 107 (“Trial
counsel’s invitation to the court members to imagine themselves as potential
future victims only served to inflame a fear as to what might happen if the
panel did not adjudge a discharge.”).
Additionally, “calling the accused a liar is a ‘dangerous practice that should
be avoided.’” United States v. Fletcher, 62 M.J. 175, 182 (C.A.A.F. 2005) (quot-
ing United States v. Clifton, 15 M.J. 26, 30 n.5 (C.M.A. 1983)). “[F]alse state-
ments about an offense made sometime after the offense are not admissible as
evidence in aggravation.” United States v. Lafollette, No. ACM 38174, 2014
CCA LEXIS 10, *12–14 (A.F. Ct. Crim. App. 14 Jan. 2014) (unpub. op.) (citing
United States v. Clabon, 33 M.J. 904, 905–06 (A.F.C.M.R. 1991)); see R.C.M.
1101(b)(4).
Conversely, statements that are an “integral part of [the] criminal course
of conduct and . . . explain how [the accused] attempted to carry out his scheme
. . . ‘directly relate[ ] to the offense for which . . . [the accused was] to be sen-
tenced,’” and thus may be admissible. United States v. Silva, 21 M.J. 336, 337
(C.M.A. 1986) (quoting United States v. Vickers, 13 M.J. 403, 406 (C.M.A.
1982)). Also, an accused’s “lack of remorse is relevant to his rehabilitation po-
tential,” and false statements about an offense may demonstrate a lack of re-
morse. United States v. Condon, No. ACM 38765, 2017 CCA LEXIS 187, *75
(A.F. Ct. Crim. App. 10 A.K. Marsh. 2017) (unpub. op.); see R.C.M. 1001(b)(5); R.C.M.
1001(f)(2).
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United States v. Aguirre Obregon, No. ACM 39005
Finally, an argument regarding potential recidivism is generally “a ques-
tion requiring expert testimony, empirical research, and scientific and psycho-
logical method, inquiry, and evidence. Recidivism is not a matter resolved
through appeal to common sense or a member’s knowledge of ‘the ways of the
world.’” Frey, 73 M.J. at 250.
We presume that the military judge knows and follows the law absent clear
evidence to the contrary, and we “presume that the military judge is able to
distinguish between proper and improper sentencing arguments.” United
States v. Erickson, 65 M.J. 221, 225 (C.A.A.F. 2007). This is true regardless of
whether the military judge states on the record what portion of the argument
is improper and will not be considered. Id.
1. Issues on which the military judge sustained defense objections.
The military judge sustained defense objections to trial counsel’s argument
regarding an increased sentence for Appellant’s duty status and trial counsel
staring at Appellant during argument. We presume the military judge followed
her rulings and did not consider these matters during sentencing deliberations.
Thus, we find no error.
2. Issues on which there was no defense objection.
For the first time on appeal, Appellant argues that it was error for the mil-
itary judge to permit trial counsel to argue medical conclusions related to the
victim’s injuries and scientific conclusions regarding the impact of the offenses
on the children.
The military judge did not err in permitting trial counsel to argue, without
objection, that the injuries to JM’s three-year-old daughter, which were severe
enough to cause scarring seven years later, were not the result of a “minor”
burn and that Appellant’s son “regressed” after the assaults. These were rea-
sonable inferences from the evidence presented and did not cross into the realm
of expert opinion.
Appellant also argues now for the first time that it was error for trial coun-
sel to ask the military judge to place herself in the victim’s shoes. In fact, trial
counsel only asked the military judge to consider the moment when one of the
offenses occurred. “[A]sking the [fact finder] to consider the fear and pain of
the victim is conceptually different from asking them to put themselves in the
victim’s place.” See Baer, 53 M.J. at 238. Further, we are confident the military
judge knew and understood the law and did not improperly consider this evi-
dence or argument in sentencing deliberations. Thus, we find no error.
3. Issues on which argument was permitted over defense objection.
Trial counsel mentioned numerous times throughout sentencing argument
that Appellant lied regarding the offenses, and such lies constituted a lack of
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United States v. Aguirre Obregon, No. ACM 39005
remorse and rehabilitative potential. This was a proper area of argument and
a fair inference from the evidence in the stipulation of fact and the providence
inquiry. Trial counsel’s argument did not improperly infringe on Appellant’s
right to remain silent. Based on the facts in this case, it was not error for the
trial counsel to argue Appellant’s lies evidenced a lack of rehabilitative poten-
tial.
Appellant has argued that trial counsel’s repeated use of the term “lie” had
an improper cumulative impact. Even if trial counsel’s argument regarding
Appellant’s lies was excessive, we are convinced the military judge was not
improperly influenced by it. Although the military judge did not sustain the
Defense objection, she correctly noted that the arguments of counsel were not
evidence and that she would give the argument only the weight it deserved.
We find no evidence that the military judge was improperly swayed by the ar-
gument. Thus, even assuming that trial counsel’s argument was improper, it
did not materially prejudice the substantial rights of Appellant. We are confi-
dent Appellant was sentenced on the basis of the evidence alone.
Trial counsel’s argument that Appellant was “likely to abuse” his newborn
son was improper. The Government did not present evidence of recidivism.
While protection of society is a generally recognized principle of sentencing, it
is not a blanket authorization to argue that a convicted servicemember will
likely be a repeat offender. Thus, we find the military judge erred by allowing
argument on recidivism over Defense objection.
Despite this error, we are convinced that Appellant was sentenced on the
basis of the evidence alone. The improper reference to Appellant’s recidivism
constituted two sentences of an argument that covered more than ten pages in
the record of trial. Appellant has not offered a specific argument as to how this
improper inference influenced the military judge, and we find no evidence in
the record that it did. The maximum punishment in this case included eight
years of confinement. Trial counsel argued for 30 months of confinement, and
the adjudged sentence included 24 months of confinement. In the PTA, Appel-
lant negotiated a confinement cap of 24 months. Thus, the adjudged sentence
was within the range of possible punishments, was less than the amount trial
counsel suggested, and equal to the amount Appellant bargained for in the PTA
with respect to the period of confinement. The evidence before the military
judge was that Appellant had repeatedly abused two children, including one
instance of abuse that required a three-day hospital stay. The improper argu-
ment regarding potential recidivism did not prejudice the substantial rights of
Appellant, and we are convinced that Appellant’s sentence was based on the
evidence admitted at trial and not any improper argument.
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United States v. Aguirre Obregon, No. ACM 39005
C. Staff Judge Advocate Recommendation
Prior to trial, Appellant entered into a PTA with the convening authority.
As part of the PTA, Appellant agreed to plead guilty to Specifications 1 and 2,
guilty to Specification 4 by excepting the words “and a belt,” and guilty to Spec-
ification 5 by excepting the word “arm” and substituting the word “hand.” Ap-
pellant further agreed to waive any objection to the Government amending the
dates in Specification 5. None of these changes were reflected on the charge
sheet before arraignment; however, the parties and the military judge treated
the amendment to the dates in Specification 5 as if it had been made before the
entry of pleas.
Appellant entered pleas with the agreed upon exceptions and substitutions.
Pursuant to his pleas, the military judge found Appellant guilty of Specifica-
tions 1 and 2 as charged and guilty of Specifications 4 and 5 as modified by the
agreed upon exceptions and substitutions. Prior to entry of findings, the Gov-
ernment indicated it did not intend to go forward on Specification 3. The mili-
tary judge, however, did not state on the record at that point that Specification
3 was withdrawn and dismissed nor did she enter a finding for Specification 3.
After announcing sentence, the military judge stated that Specification 3 was
withdrawn and dismissed. At some point, the Government made pen and ink
changes to the charge sheet for Specifications 4 and 5.
The SJAR informed the convening authority that a summary of the
charges, specifications, pleas, findings, and sentence was contained in the Re-
port of the Results of Trial (RRT) attached to the SJAR. Under the “Arraigned”
column, the RRT should have reflected Specification 4 as charged; however, it
incorrectly stated that Appellant had been arraigned on an offense that did not
include the words “and a belt” and the words “shoulders, hips, and.” 4 The RRT
correctly reflected both the plea and finding for Specification 4. With respect
to Specification 5, the RRT correctly reflected the exceptions and substitutions,
but it failed to include the amended charged time frame agreed to in the PTA.
Appellant was provided a copy of the SJAR and attachments, but he did not
object to the erroneous RRT during post-trial processing.
We review post-trial processing de novo. United States v. Parker, 73 M.J.
914, 920 (A.F. Ct. Crim. App. 2014). However, failure to timely comment on
matters in an SJAR forfeits a claim of error in the absence of plain error. Id.;
4 The Court-Martial Order (CMO) also includes errors with respect to Specification 4.
The CMO should include Specification 4 as charged; however, it is missing the excepted
language “and a belt” and the words “shoulders, hips, and” which were never removed
or excepted. This appears to be merely an oversight resulting in no prejudice to Appel-
lant. Nonetheless, we direct promulgation of a corrected CMO to remedy these mis-
takes.
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United States v. Aguirre Obregon, No. ACM 39005
R.C.M. 1106(f)(6); United States v. Scalo; 60 M.J. 435, 436 (C.A.A.F. 2005). “To
prevail under a plain error analysis, [the appellant must show] that: ‘(1) there
was an error; (2) it was plain or obvious; and (3) the error materially prejudiced
a substantial right.’” Scalo, 60 M.J. at 436 (quoting United States v. Kho, 54
M.J. 63, 65 (C.A.A.F. 2000)).
Because of the highly discretionary nature of the convening authority’s ac-
tion on a sentence, we may grant relief if an appellant presents “some colorable
showing of possible prejudice.” Kho, 54 M.J. at 65 (quoting United States v.
Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998)).
Here, there is no reasonable possibility that a correct RRT would have re-
sulted in a more favorable recommendation by the SJA or corrective action by
the convening authority. The RRT informed the convening authority that Ap-
pellant had been arraigned on specifications that were less serious than those
on which he was actually arraigned. Further, the RRT correctly noted Appel-
lant’s pleas and the offenses on which he was convicted, which included modi-
fied, less serious, language.
Moreover, we are convinced that despite the errors in the “Arraigned” sec-
tion of the RRT, the convening authority was properly advised of the specifica-
tions of which Appellant was convicted, and the convening authority would not
have taken more favorable action even if there were not minor errors. As such,
there is no colorable showing of possible prejudice from the errors in the SJAR
attachment.
D. Substantially Verbatim Transcript5
The beginning of the authenticated transcript reflects the following discus-
sion between the military judge and Appellant:
MJ: Sergeant Aguirre –-
[The accused stood.]
MJ: Go ahead and have a seat, Sergeant Aguirre. I’m going to be
going over your rights with you this morning and you can remain
seated unless I specifically ask you to stand. Okay?
ACC: Yes, ma’am.
MJ: Go ahead and have a seat.
[The accused resumed his seat.]
5 This issue is raised pursuant to Grostefon, 12 M.J. 431.
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United States v. Aguirre Obregon, No. ACM 39005
MJ: My understanding, Sergeant Aguirre, is that although you
actually have a hyphenated last name, you only go by Sergeant
Aguirre. Is that correct?
ACC: That is correct, ma’am.
MJ: Okay. That’s what I’m going to refer to you as, then.
On appeal, Appellant alleges that there was “[a]n ensuing exchange during
which Appellant explained to the military judge that his name was not, in fact,
hyphenated” which “is not in the record of trial.” Appellant provides no evi-
dence, such as an affidavit, of the supposed missing portion of the record of tri-
al.
We review de novo whether a record is complete and a transcript is verba-
tim. United States v. Davenport, 73 M.J. 373, 376 (C.A.A.F. 2014). In assessing
if a record is complete or a transcript is verbatim, the threshold question is
“whether the omitted material was ‘substantial,’ either qualitatively or quan-
titatively.” United States v. Lashley, 14 M.J. 7, 9 (C.M.A. 1982); cf. United
States v. Gaskins, 72 M.J. 225, 229 (C.A.A.F. 2013) (stating that a “substantial”
omission makes a record incomplete).
An appellant bears the initial burden of proving that the record is incom-
plete. See Asif v. United States, NMCCA 200601040, 2008 CCA LEXIS 625, at
*5 (N-M. Ct. Crim. App. 22 Apr. 2008) (unpub. op.) (“In this case, the petitioner
has failed to demonstrate that the omissions he alleges are substantial.”).
“‘[W]hen there is a substantial omission from the record, a presumption of prej-
udice arises’ that the Government has the responsibility of rebutting.” United
States v. Santoro, 46 M.J. 344, 346 (C.A.A.F. 1997) (quoting United States v.
Gray, 7 M.J. 296, 298 (C.M.A. 1979)).
A transcript may be deemed “substantially verbatim” even though it has
certain omissions. Davenport, 73 M.J. at 377. In contrast, omissions are quali-
tatively substantial if the substance of the omitted material “related directly
to the sufficiency of the Government’s evidence on the merits,” and “the testi-
mony could not ordinarily have been recalled with any degree of fidelity.” Lash-
ley, 14 M.J. at 9. Omissions are quantitatively substantial unless “[t]he totality
of omissions . . . becomes so unimportant and so uninfluential when viewed in
the light of the whole record, that it approaches nothingness.” United States v.
Nelson, 13 C.M.R. 38, 43 (C.M.A. 1953).
Appellant has presented no evidence supporting his claim of a missing por-
tion of the transcript. Without such evidence, we conclude that Appellant has
failed to meet his initial burden of demonstrating that there is an omission.
Even assuming that a further discussion about the hyphenation of Appellant’s
last name occurred, this omission would be insubstantial. Whether or not Ap-
pellant’s name is hyphenated did not impact whether he was the proper person
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United States v. Aguirre Obregon, No. ACM 39005
on trial or the merits of this guilty plea case. Therefore, the transcript is sub-
stantially verbatim, and Appellant was not prejudiced by any alleged omission.
III. CONCLUSION
The findings and the sentence are correct in law and fact, and no error ma-
terially prejudicial to the substantial rights of Appellant occurred. Articles
59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings
and sentence are AFFIRMED.
FOR THE COURT
KURT J. BRUBAKER
Clerk of the Court
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