United States v. Seeto, ACM 2016-15 (f rev)

Petitioner was convicted at a general court-martial of conduct unbecoming an officer and indecent conduct; sentenced to a dismissal and 10 months confinement.
A court reporter discovered one day of audio from a pretrial motions hearing was missing; efforts to recover it failed.
The Government conducted an Article 39a hearing to reconstruct the missing material; the military judge indicated he would certify the record of trial as non-verbatim.
Petitioner asked the convening authority to defer execution of confinement pending a determination whether the record was non-verbatim; the convening authority denied the request.
This court previously granted partial mandamus relief, directing the convening authority to reconsider deferral in accordance with Article 57a and R.C.M. 1101(c)(3); the Government complied, and the habeas petition remained for decision.
The core legal dispute is whether the alleged non-verbatim (incomplete) record renders Petitioner’s post-trial confinement illegal such that habeas relief (release) is warranted.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether confinement is illegal because the record of trial is non-verbatim	Missing audio demonstrates the record is non-verbatim and therefore the confinement is unlawful	Government argues it reconstructed the missing material and the record is substantially verbatim, rebutting any presumption of prejudice	Court held Petitioner failed to show his right to relief was clear and indisputable; confinement not shown illegal
Whether extraordinary relief (habeas) is appropriate when record omissions exist	Seeto contends habeas is the only adequate means to challenge illegal confinement from a non-verbatim record	Government notes reconstruction and convening authority options (including rehearing) negate entitlement to habeas release	Court applied Cheney factors and denied habeas, finding other remedies and that issuance was not clearly warranted

Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367 (standards for extraordinary writs)
Harris v. Nelson, 394 U.S. 286 (habeas as primary protection against illegal custody)
Preiser v. Rodriguez, 411 U.S. 475 (habeas purpose is to secure release from illegal custody)
United States v. Davenport, 73 M.J. 373 (record need only be substantially verbatim)
United States v. Lashley, 14 M.J. 7 (test for whether omitted material is substantial)
United States v. Henry, 53 M.J. 108 (insubstantial omissions do not render record incomplete)
United States v. Abrams, 50 M.J. 361 (incomplete record raises presumption of prejudice which government may rebut)
United States v. Garries, 19 M.J. 845 (reconstruction can rebut presumption of prejudice)
United States v. Snethen, 62 M.J. 579 (reconstruction may be insufficient depending on importance and length of omitted testimony)