

   
   
   
   U.S. v. Stoffer



UNITED STATES, Appellee
 
v.
 
Michael S. STOFFER, Private First Class
U.S. Marine Corps, Appellant
 
No. 99-0292
Crim. App. No. 97-1326
 
United States Court of Appeals for
the Armed Forces
Argued October 28, 1999
Decided May 3, 2000
CRAWFORD, C.J., delivered the opinion
of the Court, in which GIERKE and EFFRON, JJ., and COX, S.J., joined. SULLIVAN,
J., filed an opinion concurring in part and dissenting in part.

Counsel
For Appellant: Lieutenant John D.
Holden, JAGC, USNR
(argued).
For Appellee: Lieutenant William
C. Minick, JAGC, USNR
(argued); Colonel Kevin M. Sandkuhler,
USMC, and Commander
Eugene E. Irvin, JAGC, USN
(on brief).
Military Judge: Lawrence M. Todd
 


THIS OPINION IS
SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.

Chief Judge CRAWFORD delivered the
opinion of the Court.
Pursuant to his pleas, appellant was
convicted of a single charge and specification of being absent without
leave for about 7 months, terminated by apprehension, in violation of Article
86, Uniform Code of Military Justice, 10 USC § 886. The military judge,
sitting as a special court-martial (SPCM) empowered to adjudge a bad-conduct
discharge (BCD), sentenced him to a BCD, confinement for 75 days, forfeiture
of $550.00 pay per month for 2 months, and reduction to the lowest enlisted
grade. In consonance with the pretrial agreement, the convening authority
approved the sentence, but suspended confinement in excess of 60 days and
forfeiture of pay in excess of $150.00 pay per month for 4 months for a
period of 6 months from the trial date. The Court of Criminal Appeals affirmed
the findings and sentence.
We granted review of the following
issue:



WHETHER THE LOWER COURT ERRED IN
FINDING
THAT THE RECORD OF TRIAL IS SUBSTANTIALLY
INCOMPLETE YET STILL SUFFICIENT FOR
APPELLATE
REVIEW.



We hold that the lower court erred by
affirming a sentence that included a BCD because missing exhibits render
the record of trial substantially incomplete.
Appellant's record of trial is missing
(a) the charge sheet; (b) the court-martial convening order; (c) the staff
judge advocate's recommendation (SJAR); and (d) the three defense exhibits
and the three appellate exhibits admitted at trial. A complete record of
trial would include these missing documents. Art. 54(c)(1)(B), UCMJ, 10
USC § 854(c)(1)(B); RCM 1103(b)(2)(D), Manual for Courts-Martial,
United States (1995 ed.). See United States v. Santoro, 46
MJ 344 (1997).
In an unpublished opinion, the Court
of Criminal Appeals found that the missing documents made the record "substantially
incomplete," unpub. op. at 2, thus raising the rebuttable "presumption
of prejudice." See United States v. Gray, 7 MJ 296, 298 (CMA
1979). Whether an omission from a record of trial is "substantial" is a
question of law which we review
de novo.
Upon review of the approved findings
of guilty, we find no substantial omissions from the record of trial that
could prejudice appellant. However, we find that the Government has failed
to rebut this presumption of prejudice as to appellant's sentence. See
Art. 59(a), UCMJ, 10 USC § 859(a).
With regard to the guilty determination,
the verbatim record of trial conclusively establishes the proper preferral
and referral to a SPCM. This record shows service of the charge on appellant
subsequent to its referral. After appellant's guilty plea, the military
judge conducted a thorough providence inquiry. RCM 910(c); see also
United States v. Care, 18 USCMA 535, 40 CMR 247 (1969). The pretrial
agreement (Appellate Exhibits I and II) was admitted and a meticulous inquiry
by the military judge ensures us that appellant understood its ramifications.
RCM 910(f).
Although the record of trial renders
these omissions non-prejudicial as to the findings, the Government has
failed to show that the same is true for appellant's sentence. Sentencing
proceedings were brief. The Government introduced no evidence. Trial defense
counsel introduced Defense Exhibits A, B, and C without further identification
or any objection from opposing counsel. Appellant made an unsworn, seven-word
statement: "That I'd like to go home, sir." Trial counsel argued that appellant
lacked rehabilitation potential and should be separated from the Marine
Corps and sent to confinement for not less than 75 days. Defense counsel
argued for a sentence of 45 days confinement. After pronouncing sentence,
the military judge asked appellant about his appellate rights, ensured
appellant understood them, and ordered that Appellate Exhibit III, appellant's
signed appellate rights statement, be appended to the record of trial.
Unlike the court below, we will not
"presume" what information was contained in Defense Exhibits A, B, and
C. These exhibits were never referred to again after their introduction
or otherwise identified in the record of trial. The failure to include
Defense Exhibits A, B, and C in the record of trial constitutes a substantial
omission. As the Government has failed to overcome the presumption of prejudice
from the exhibits' absence or show their omission to be harmless error,
appellant may not receive a sentence that includes a BCD. See Art.
19, UCMJ, 10 USC § 819; RCM 1103(b)(2)(B)(ii).
The Court of Criminal Appeals found,
pursuant to its Article 66(c), UCMJ, 10 USC § 866(c)(1994), factfinding
power that "a SJAR existed and was relied upon by the convening authority,
in accordance with Article 60(d), Uniform Code of Military Justice, 10
USC § 860(d)(1994)." Unpub. op. at 3. Thus, this case is unlike the
situation in United States v. Mark, 47 MJ 99, 100 (1997), where
the lower court relied on a presumption of regularity to find that the
SJAR was published. As we have already determined that the absence of three
defense exhibits from this record constitutes a substantial omission, we
need not decide whether this particular SJAR's absence from the record,
in and of itself, amounts to a substantial omission warranting relief.
We conclude that it is appropriate
to finalize this case now in lieu of returning this record to the Court
of Criminal Appeals for sentence reassessment and prolonging litigation
which began with trial on February 23, 1994.
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals as to findings and only so much of the
sentence as provides for confinement for 75 days, forfeiture of $550.00
pay per month for 2 months, and reduction to pay grade E-1 (as suspended)
is affirmed.


SULLIVAN, Judge (concurring in part
and dissenting in part):
I agree with the majority that this
court cannot affirm appellants bad-conduct discharge where there is such
an incomplete record. In the instant case, the record of trial is missing:



a. the charge sheet;
b. the court-martial convening order;
c. the Staff Judge Advocates
   recommendation (SJAR);
and
d. three defense exhibits used in
   sentencing.



However, I do not agree with the majoritys
giving appellant the windfall of permanently setting aside the bad-conduct
discharge on the unsupported and vague basis of judicial economy. ___ MJ
at (6). This unauthorized sentence relief is not fair to the Government
and to the countless servicemen and women of the past who have been punished
with a bad-conduct discharge for deserting their military units and duties
or by going absent without leave. Why should this appellant be singled
out to receive such generosity by the majority?
The crime of desertion and the crime
of absence without leave (AWOL) have been recognized as serious crimes
in the military for centuries because these crimes harm morale and sap
the strength of the military. In the U.S. Civil War on the Union side it
was observed:



In 1863, actual desertions ran at
more than forty-five hundred a month. In March alone, six hundred cases
went to court-martial; throughout that year they averaged more than three
hundred per month, and rose to nearly four hundred per month in 1864, as
the actual monthly desertion rate peaked at seventy-three hundred. By January
1863, General Halleck estimated that almost 290,000 soldiers were absent
from one cause or another, at least seventy-five thousand of them deserters.
When caught and brought to trial, they accounted for exactly one-third
of all courts-martial.



William C. Davis, Lincolns Men
178 (The Free Press 1999).
In the present case, appellant left
his unit at Camp Lejeune, North Carolina, without permission and was caught
in Missouri 7 months later by civilian police officers.
Appellant pled guilty at his trial
and, inter alia, received a bad-conduct discharge. As discussed
above, the majority and I agree that it would not be lawful to affirm that
bad-conduct discharge in view of the deficiencies in the record of the
sentencing-clemency portion of his trial. But, in my view, it is equally
not fair to simply void the bad-conduct discharge under the theory of judicial
economy.
Blacks Law Dictionary 851 (7th
ed. 1999) defines judicial economy as follows:



Judicial economy. Efficiency
in the operation of the courts and the judicial system; esp., the efficient
management of litigation so as to minimize duplication of effort and to
avoid wasting the judiciarys time and resources. · A court can
enter a variety of orders based on judicial economy. For instance, a court
may consolidate two cases for trial to save the court and the parties from
having two trials, or it may order a separate trial on certain issues if
doing so would provide the opportunity to avoid a later trial that would
be more complex and time-consuming.



Where is the duplication of effort saved
here? How would the judiciarys time and effort be wasted by a remand by
this Court to the convening-authority level where appellant can receive
an opportunity to go through the missing portion of his case again. In
my view, a remand under our case law is appropriate here, e.g.,
see United States v. Mark, 47 MJ 99 (1997). On remand, a
new SJAR can also be prepared and appellant can have another chance to
seek clemency with a new convening authority. That process would make sense
and be fair in this case. Accordingly, I vote to reverse the court below
on sentence and to remand this case to a new convening authority for a
new sentencing hearing and full clemency process starting with preparation
and service of a new SJAR on appellant. Fiat justitia et pereat mundus.

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