United States v. Davenport
2014 CAAF LEXIS 831
C.A.A.F.2014Background
- Appellant (Army NCO) was convicted at general court-martial of conspiracy, extortion, and bribery; sentence included 2 years confinement and a bad-conduct discharge (convening authority approved 1 year confinement, otherwise approved).
- The authenticated record omitted the entire on-the-merits testimony of a Government witness, SGT MS, because the court-reporter’s recorded data was lost when the reporter’s computer was reimaged.
- Appellant raised the omission on appeal; the Army Court of Criminal Appeals (ACCA) ordered and held a DuBay post-trial hearing to reconstruct SGT MS’s trial testimony.
- The DuBay judge found the full substance of SGT MS’s testimony was not altogether clear, that his testimony “mostly” concerned money-laundering specifications of which Appellant was acquitted, but also acknowledged SGT MS had been asked about threats and taking property from locals.
- ACCA concluded the record was "substantially verbatim and complete" because SGT MS’s testimony was not relevant to offenses of conviction; this Court granted review and reversed the ACCA.
Issues
| Issue | Davenport's Argument | Government/ACCA Argument | Held |
|---|---|---|---|
| Whether complete omission of a merits witness’s testimony renders the transcript nonverbatim such that R.C.M. 1103(f) remedies apply | Omission made transcript nonverbatim; limits convening authority to R.C.M. 1103(f) remedies | Missing testimony was reconstructed sufficiently at DuBay and related only to acquitted offenses, so transcript is substantially verbatim | Omission of entire merits testimony was substantial (qualitative and quantitative) and rendered transcript nonverbatim; R.C.M. 1103(f) remedies control |
| Standard for "substantial" omission that defeats "substantially verbatim" status | Substantial if omitted material relates to government’s merits evidence or cannot be faithfully reconstructed | If the missing portion can be adequately reconstructed or is irrelevant to convictions, transcript may be salvaged | Threshold is whether omission is substantial qualitatively or quantitatively; entire omitted testimony is ordinarily substantial, especially if reconstruction is equivocal |
| Proper remedial scope when transcript is nonverbatim | Convening authority limited to options in R.C.M. 1103(f): sentence reduction or rehearing | ACCA treated the omission as nonprejudicial and affirmed sentence without applying R.C.M. 1103(f) limits | When a verbatim transcript cannot be prepared, R.C.M. 1103(f) provides the exclusive remedial options |
| Whether an omission tied mostly to acquitted offenses can leave transcript "substantially verbatim" | Even if mostly tied to acquitted counts, uncertainty and uncovered questions about threats/property implicated convicted offenses; omission still substantial | Because DuBay showed testimony primarily concerned acquitted counts and lacked relevance to convictions, omission was not materially prejudicial | Court rejects ACCA’s definitive recharacterization of DuBay findings; equivocal reconstruction supports treating the transcript as nonverbatim |
Key Cases Cited
- United States v. Gaskins, 72 M.J. 225 (C.A.A.F. 2013) (distinguishing remedies for incomplete records vs. nonverbatim transcripts)
- United States v. Henry, 53 M.J. 108 (C.A.A.F. 2000) (de novo review of completeness/verbatim issues; jurisdictional importance of transcript completeness)
- United States v. Lashley, 14 M.J. 7 (C.M.A. 1982) (definition of "substantial" omission qualitatively or quantitatively)
- United States v. Nelson, 3 C.M.A. 482 (C.M.A. 1953) (omissions are quantitatively insubstantial only when they approach "nothingness")
- United States v. Gray, 7 M.J. 296 (C.M.A. 1979) (summary of substance of material matter is not a verbatim transcript)
- United States v. Stoffer, 53 M.J. 26 (C.A.A.F. 2000) (omission of sentencing exhibits was substantial when content related to sentencing and not in record)
- Edmond v. United States, 520 U.S. 651 (1997) (general/specific provision construction; specific controls)
- United States v. DuBay, 17 C.M.A. 147 (C.M.A. 1967) (authorizing post-trial factfinding hearings to reconstruct records)