United States v. Simmons

U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
UNITED STATES ) No. ACM 40462
Appellee )
)
v. )
) ORDER
Malik C. SIMMONS )
Airman First Class (E-3) )
U.S. Air Force )
Appellant ) Panel 1
On 3 March 2023, Appellant was convicted by a general court-martial at
Minot Air Force Base, North Dakota, of one specification of possessing child
pornography in violation on Article 134, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 934.* The military judge sentenced Appellant to a dishon-
orable discharge, confinement for 11 months, reduction to the grade of E-1, and
a reprimand. The record of trial was docketed with this court on 16 May 2023.
Upon this court’s review of the record, we discovered Preliminary Hearing Of-
ficer (PHO) Exhibits 12–34 missing.
“A substantial omission renders a record of trial incomplete and raises a
presumption of prejudice that the Government must rebut.” United States v.
Henry, 53 M.J. 108, 111 (C.A.A.F. 2000) (citations omitted). “Insubstantial
omissions from a record of trial do not raise a presumption of prejudice or affect
that record’s characterization as a complete one.” Id. “Whether an omission
from a record of trial is ‘substantial’ is a question of law which [appellate
courts] review de novo.” United States v. Stoffer, 53 M.J. 26, 27 (C.A.A.F. 2000).
Each case is analyzed individually to decide whether an omission is substan-
tial. United States v. Abrams, 50 M.J. 361, 363 (C.A.A.F. 1999).
On 16 May 2023, this court ordered the Government to show cause why the
court should not remand this record for completion and correction of the record.
On 1 June 2023, the Government responded to the court’s order by requesting
the court return the case to the Chief Trial Judge for correction. According to
the Government, “A PHO report under Article 32, UCMJ, including its attach-
ments, is not required content of a record of trial under R.C.M. 1112(b).
*All references in this order to the UCMJ are to the Manual for Courts-Martial,
United States (2019 ed.).
United States v. Simmons, No. ACM 40462
However, under R.C.M. 1112(f)(1)(A), the PHO report is among those items the
United States is required to attach to the record of trial.”
Accordingly, it is by the court on this 5th day of June, 2023,
ORDERED:
The record of trial in Appellant’s case is returned to the Chief Trial Judge,
Air Force Trial Judiciary, for correction under R.C.M. 1112(d) to account for
PHO Exhibits 12–34, and any other portion of the record that is determined to
be missing or defective hereafter, after consultation with the parties. See Arti-
cle 66(g), UCMJ, 10 U.S.C. § 866(g); R.C.M. 1112(d)(2)–(3). Thereafter, the rec-
ord of trial will be returned to this court for completion of its appellate review
under Article 66(d), UCMJ, 10 U.S.C. § 866(d).
The record of trial will be returned to the court not later than 30 June 2023
unless a military judge or this court grants an enlargement of time for good
cause shown. The Government will inform the court in writing not later than
22 June 2023 of the status of the Government’s compliance with this order,
unless the record of trial has already been returned to the court by that date.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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