United States v. Stoffer
2000 CAAF LEXIS 445
C.A.A.F.
2000
Check Treatment
Docket

*1 STATES, Appellee, UNITED STOFFER,

Michael S. Private Class,

First U.S. Marine

Corps, Appellant.

No. 99-0292.

Crim.App. No. 97-1326.

U.S. Court of

the Armed Forces.

Argued Oct. 1999. 3,May

Decided

CRAWFORD, C.J., оpinion delivered the Court, which GIERKE EF- JJ., FRON, COX, S.J., joined. SULLI- VAN, J., opinion concurring filed an part. Appellant: For Lieutenant D. John Hol- ‍‌​‌​​‌​‌​‌‌‌‌​‌​‌​​‌‌​​‌‌​​​​‌‌‌‌‌‌​‌‌​​​​​​​‌​‌‍den, JAGC, (argued). USNR Appellee: Lieutenant William C. Minick, JAGC, (argued); USNR Colonel Sandkuhler, USMC, Kevin M. and Com- Irvin, (on Eugene JAGC, mander E. USN brief).

Chief CRAWFORD delivered the opinion ‍‌​‌​​‌​‌​‌‌‌‌​‌​‌​​‌‌​​‌‌​​​​‌‌‌‌‌‌​‌‌​​​​​​​‌​‌‍of the Court. pleas, appellant

Pursuant to his was con- single charge speсification victed of a being absent without leave for about 7 months, by apprehension, terminated in vio- lation of judge, USC 886. The (SPCM) sitting special as a em- powered adjudge a bad-conduct (BCD), BCD, sentenced ‍‌​‌​​‌​‌​‌‌‌‌​‌​‌​​‌‌​​‌‌​​​​‌‌‌‌‌‌​‌‌​​​​​​​‌​‌‍him to a confinement for 75 forfeiture of $550.00 and reduction to the grade. lowest enlisted consonance with pretrial agreement, au- thority approved suspended but days confinement in excess of 60 and forfei- pay in pay per ture of excess of $150.00 *2 27 (1969). 247, pretrial ‍‌​‌​​‌​‌​‌‌‌‌​‌​‌​​‌‌​​‌‌​​​​‌‌‌‌‌‌​‌‌​​​​​​​‌​‌‍The period for a оf 6 months 1969 WL 6059 month for 4 months II) (Appellate Exhibits was agreement The from the trial date. inquiry Appeals findings sentence. and meticulous affirmed admitted judge appellant that un military ensures us following granted review of the issue: We 910(f). its ramifications. RCM derstood WHETHER THE COURT LOWER FINDING THAT THE REC- ERRED IN Although of trial renders the record TRIAL ORD OF IS SUBSTANTIALLY non-prejudicial as these omissions YET STILL SUFFI- INCOMPLETE has failed to show findings, the Govеrnment APPELLATE CIENT FOR REVIEW. appellant’s is sentence. that the same true for that court erred We hold lower Sentencing proceedings were brief. The affirming a BCD that included introduced no evidence. Trial Government missing of because exhibits render the record Defense Exhibits defense counsel introduced substantially incomplete. trial A, B, or and C without furthеr identification objection any opposing Appel from counsel. (a) missing Appellant’s record of is trial unsworn, an state lant made seven-word (b) sheet; chargе con- the court-martial home, I’d sir.” Trial ment: “That like to (c) vening judge the staff advocate’s argued that lacked appellant counsel rehabili (d) the three reсommendation separated potential tation should be from appellate defense exhibits and the three ex- the Marine and sent to confinement cоmplete hibits admitted at trial. record A days. than for not less 75 Defense counsel missing of include trial would these docu- days’ argued for a sentence of 45 confine 54(c)(1)(B), UCMJ, ments. Art. 10 USC pronouncing ment. After mili 854(c)(1)(B); 1103(b)(2)(D), § Manual RCM tary judge appel asked about his (1995 ed.). Courts-Martial, United States rights, late understood ensured Santoro, See v. 344 United States 46 MJ them, Appеllate and ordered that Exhibit III, signed appellate rights appellant’s state unpublished opinion, In an the Court ment, appended record of to the of missing found that the below, “pre- the court we will not Unlike “substantially documents made the record ‍‌​‌​​‌​‌​‌‌‌‌​‌​‌​​‌‌​​‌‌​​​​‌‌‌‌‌‌​‌‌​​​​​​​‌​‌‍sume” what information was contained in incomplete,” unpub. op. raising thus A, B, Exhibits Defense and C. Thеse exhibits “presumption prejudice.” rebuttable of See again after their were never referred to in- (CMA Gray, v. 7 United States 298 MJ troduction or otherwise identified rec- a record Whether omission from trial. The include ord of failure to Defense question trial is “substantial” of law is a A, B, Exhibits C the record trial which we review de novo. constitutes a substantial omission. As the Upon the approved review of has the pre- Government failed to overcome guilty, we find no substantial omissions prejudice sumption of from thе exhibits’ ab- of trial that prejudice record could sence or show their omission to be harmless However, lant. we find that the Government error, appellant may nоt receive a sentence presumption preju- has this failed rebut 19, UCMJ, Art. that includes BCD. See 10 appellant’s dice as to Art. sentence. See 1103(b)(2)(B)(ii). 819; § RCM USC 859(a). 59(a), UCMJ, § 10 USC found, pur- of Criminal The Court 66(c), UCMJ, regard guilty With determina to its 10 suant USC tion, 866(c)(1994), conclusively factfinding power § record the verbatim of trial that “a proper preferral upon establishes the and referral SJAR existed was relied authority, to a This service of with Arti- SPCM. record shows accordance 60(d), subsequent to its cle 860(d)(1994).” plea, Unpub. op. guilty referral. After at 3. USC Thus, militаry judge thorough provi conducted a this case unlike the situation in 910(c); (1997), inquiry. dence RCM see also Unit 47 MJ United States Care, presump- ed States v. 40 CMR where the lower court reliеd on a USCMA regularity tion of to find that recognized the SJAR was as serious crimes in the published. already As we have determined for centuries because these crimes harm mo- the absence of three sap defense exhibits strength military. rale and from this record constitutes a substantial the U.S. Civil War on the Union side it was omission, we need not decide whether observed: *3 particular record, SJAR’s absence from the In actual desertions ran at more than itself, in and of amounts to a substantial forty-five hundred a month. In March warranting omission relief. alone, six hundred cases went to court- martial; throughout year they aver- appropriate We conclude that it is to final- aged month, per more than three hundred ize this case in returning now lieu of nearly per and rose to four hundred month record to the Court for in monthly as the actual desertion sentenсe prolonging litiga- reassessment and peaked seventy-three By rate at hundred. began tion which February with trial on January General Halleck estimated 290,000 that almost sоldiers were absent The decision of Navy- the United States another, from one cause or at least seven- Marine as ty-five thousand of them deserters. When to only аnd so much of the sentence trial, caught brought they and to accounted provides as for confinement for 75 for- exactly for of all one-third courts-martial. feiturе of $550.00 Davis, (The William C. Lincoln’s Men 178 (as pay grade and reduction to E-l Free Press suspended) is affirmed. case,

In present left his unit Camp Lejeune, Carolina, SULLIVAN, North without Judge (cоncurring permission caught and was in Missouri 7 part): and police months later civilian officers. agree I majority with the that this court Appellant and, pled guilty cannot affirm аt his trial inter bad-conduct dis- alia, discharge. received a where there bad-conduct As incomplete is such an above, case, majority agree discussed record. In the and, instant the record of missing: that it would not be trial is lawful to affirm that bad- discharge in conduct view of the deficiencies charge sheet; a. in the record оf the sentencing-clemency por- b. But, my view, tion of his it is c. the Staff Advocate’s recommen- equally simply not fair to void the bad-con- dation and discharge theory judiciаl duct under the economy. d. three defense exhibits used in sentenc- ing. (7th ed.1999) Dictionary Black’s Law However, I agree do not with majority’s judicial economy defines as follows: giving appellant permanently the windfall of economy. Efficiency oper- Judicial setting aside the discharge bad-conduct on judicial ation of the system; courts and the unsupported vague judicial basis of esp., management the efficient litigation economy. 53 MJ at 28. This unauthorized so as to duplication minimize of effort and sentence relief is not fair to the Government wasting judiciary’s to avoid time and and to the countless servicemen and women (cid:127) A variety resources. court can enter a past punished who have been with a judicial economy. orders based on deserting bad-conduct their instance, may a court consolidate two cases by going units and duties or absent for trial parties to save the court Why without leave. should this trials, having may two or it order a singled out generosity by to receive such separate doing trial on certain if issues so majority? provide opportunity would to a avoid The crime of desertion and the crime of complex later trial that would be more (AWOL) absence without leave time-consuming. have been clemency to with new duplication saved another chance seek is the of effort Where judiсiary’s time here? How would process convening authority. That would wasted a remand this Court effort be and be in this case. Accord- make sense fair convening-authority where level ingly, I vote to court below on reverse the through opportunity lant can receive case to new remand this my again. missing portion of his case sentеncing convening authority for a new view, appro- a remand under our case law clemency process starting hearing and full here, priate e.g., see United States v. a new preparation and service of SJAR with remand, new SJAR MJ 99 On appellant. justitia pereat Fiat et mundus. prepared can can have also be