UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                        TOZZI, CAMPANELLA, and CELTNIEKS
                               Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                          Specialist TERRE W. MARTIN
                          United States Army, Appellant

                                   ARMY 20120898

     Headquarters, Seventh U.S. Army Joint Multinational Training Command
                        Joshua S. Shuey, Military Judge
              Major John L. Kiel, Jr., Acting Staff Judge Advocate


For Appellant: Colonel Kevin Boyle, JA; Lieutenant Colonel Peter Kageleiry, Jr.,
JA; Major Amy E. Nieman, JA; Captain James S. Trieschmann, Jr., JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Captain Sean P. Fitzgibbon, JA; Captain Timothy C. Erickson, JA (on brief).


                                 16 September 2014

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                               SUMMARY DISPOSITION
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Per curiam:

       A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of larceny of military property of a value of $500 or less on
divers occasions, in violation of Article 121, Uniform Code of Military Justice, 10
U.S.C. § 921 (2006). The military judge sentenced appellant to a bad-conduct
discharge, confinement for nine months, a $10,000 fine, and reduction to the grade
of E-1. The convening authority waived automatic forfeitures for a period of six
months and only approved so much of the sentence as extends to a bad-conduct
discharge, confinement for nine months, and reduction to the grade of E-1.

       This case is before us for review pursuant to Article 66, UCMJ. Appellant’s
sole assignment of error warrants discussion but no relief. Appellant correctly notes
that one government sentencing witness, Mr. DS, was never placed under oath. For
the reasons explained below, this error did not materially prejudice the substantial
MARTIN—ARMY 20120898

rights of appellant, and, accordingly, we affirm the findings and the sentence. See
UCMJ art. 59(a).

        Appellant entered provident pleas of guilty to stealing funds from the dining
facility (DFAC), where he worked. Appellant repeatedly stole cash from the DFAC
and repeatedly attempted to hide his larceny by adjusting the headcount numbers
downward in a DFAC database, the Armed Forces Management Information Service
(AFMIS). A DFAC with a lower headcount generally would have corresponding
lower amounts of revenue. Appellant thus evaded detection until the government
discovered abnormally large numbers of lowered headcounts. Appellant estimated
that he stole approximately $3,000, but also acknowledged that he did not know how
much he stole.

       In its pre-sentencing case, the government attempted to establish a more
precise amount stolen by appellant. The government called several witnesses and
the military judge admitted hundreds of pages of documentary evidence. The
sentencing case culminated with the expert testimony of Ms. MH, an auditor and
accountant assigned to the Internal Review and Audit Compliance Office, U.S. Army
Europe. Ms. MH, after reviewing much of the government’s case, testified that the
DFAC in question had $47,173.65 in headcount reductions, and appellant was
responsible for 77% of those reductions. The military judge admitted a spreadsheet
(Pros. Ex. 17) reflecting Ms. MH’s calculations.

       Ms. MH relied, inter alia, on four prosecution exhibits (Pros. Ex. 10-13),
which were printouts of logs of DFAC meal adjustments occurring while appellant
worked there. Those logs identified the person who made the headcount reductions.
Included in each of those exhibits were attestation certificates signed by Mr. DS, a
technician with AFMIS. The government also called Mr. DS as a telephonic witness,
but did not administer an oath to him. Appellant did not object at trial to this failure
to swear Mr. DS. Mr. DS only testified about the nature of the exhibits at issue.
The military judge ultimately admitted Pros. Exs. 10-13.

        The government’s failure to administer an oath to Mr. DS is error that is plain
and obvious. See United States v. Washington, 63 M.J. 418, 424 (C.A.A.F. 2006);
Rule for Courts-Martial 807(b)(1)(B); Military Rule of Evidence [hereinafter Mil. R.
Evid.] 603. However, Mr. DS’s testimony was not necessary for the admission of
Pros. Exs. 10-13. Those records are records of regularly conducted activities. Mil.
R. Evid. 803(6). Mr. DS’s attestation certificates sufficiently authenticated those
exhibits for purposes of admissibility. Mil. R. Evid. 902(11). While appellant at
trial presented an email from Mr. DS indicating that he “resorted and reformatted”
the data to be clearer, we find that these circumstances of production do not indicate
a lack of trustworthiness for those exhibits. Mil. R. Evid. 803(6). Nothing in the
record indicates that Mr. DS altered or otherwise manipulated the data except to




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MARTIN—ARMY 20120898

make it clearer. For example, Mr. DS sorted the meal data by date of the meals,
instead of when the data was entered into the system.

       Even if Pros. Exs. 10-13 were inadmissible, we are not convinced that these
exhibits substantially influenced the adjudged sentence. See United States v. Reyes,
63 M.J. 265, 267-68 (C.A.A.F. 2006). As described above, Pros. Exs. 10-13 were
subsumed within Pros. Ex. 17 and the testimony of Ms. MH. Ms. MH could rely on
Pros. Exs. 10-13 (among other information) in forming her expert testimony and her
properly-admitted spreadsheet. See Mil. R. Evid. 703. Thus, whether or not Pros.
Exs. 10-13 were admissible, the contents of those exhibits were cumulative with the
evidence properly admitted at trial.

                                  CONCLUSION

      Upon consideration of the entire record, the findings and the sentence as
approved by the convening authority are AFFIRMED.


                                      FORTHE
                                     FOR  THECOURT:
                                              COURT:




                                     MALCOLM
                                      MALCOLMH.H.SQUIRES,
                                                      SQUIRES,JR.
                                                                JR.
                                     Clerk
                                      ClerkofofCourt
                                                Court




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