              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                                 Before
              K.J. BRUBAKER, M.C. HOLIFIELD, A.C. RUGH
                        Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                      EMMANUEL Q. BARTEE
              LANCE CORPORAL (E-3), U.S. MARINE CORPS

                           NMCCA 201500037
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 3 October 2014.
Military Judge: Maj M.D. Zimmerman, USMC.
Convening Authority: Commanding General, 1st Marine
Logistics Group, Camp Pendleton, CA.
Staff Judge Advocate's Recommendation: LtCol D.P. Harvey,
USMC.
For Appellant: Maj M. Brian Magee, USMC.
For Appellee: Capt Cory A. Carver, USMC; Capt Matthew M.
Harris, USMC.

                            12 January 2016

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                     OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:
     A military judge sitting as a general court-martial
convicted the appellant contrary to his pleas of one
specification of conspiracy to commit larceny, one specification
of making a false official statement, and six specifications of
larceny, in violation of Articles 81, 107, and 121, Uniform Code
of Military Justice, 10 U.S.C. §§ 881, 907, and 921. The
military judge sentenced the appellant to 20 months’ confinement
and a dishonorable discharge. The convening authority (CA)
approved the sentence as adjudged.

     The appellant raises two assignments of error: (1) the
military judge abused his discretion by admitting improperly
authenticated prosecution exhibits; and (2) the military judge
erred when he ruled a panel composed of senior officers and
enlisted members did not violate Article 25 UCMJ, 10 U.S.C. §
825. We disagree on both counts.

                         Admission of Exhibits

     Over the course of several months in 2013, the appellant
conspired with two civilians to use fraudulent credit cards to
steal gifts cards and electronics from Navy and Marine Corps
exchanges around San Diego, California. The Government offered
as proof of the larcenies security camera videos of the
appellant and his co-conspirators conducting the various
transactions; business records of the transactions matched to
the time and date of the videos; and bank records showing
subsequent debits, or “charge backs,” to the exchange’s bank
accounts after the fraudulent purchases occurred.

      After a failed attempt during its case-in-chief to
introduce the records of the fraudulent transactions and “charge
backs,” the Government requested an overnight recess to procure
self-authenticating certificates in compliance with MILITARY RULE
OF EVIDENCE 902(11), SUPPLEMENT TO MANUAL FOR COURTS-MARTIAL, UNITED STATES
(2012 ed.). The next morning, the Government offered
Prosecution Exhibit 27 authenticating PE 14 through PE 22,
Marine Corps Exchange system point-of-sale records of the
fraudulent transactions. After an additional break to correct
an error with a second certificate, the Government offered PE 29
authenticating PE 23, Bank of America records of the related
“charge backs.”

     The defense objected to both the trustworthiness of the
records and the late notice by the Government of the self-
authenticating certificates. The military judge found the
records trustworthy, reliable and otherwise in compliance with
both MIL. R. EVID. 803(6) and 902(11). However, as remedy for the
late notice, the military judge ordered a four-hour continuance
to permit the defense the opportunity to inspect and challenge
the records or certificates. After the continuance, the defense
agreed they had adequate opportunity to investigate and declined
any additional continuance. The military judge permitted


                                     2
significant additional argument on the admissibility of the
exhibits then admitted PE 14 through PE 23, PE 27, and PE 29.

     The appellant now contends that the military judge should
not have admitted the self-authenticating certifications——and by
effect the underlying business and bank records——for two
reasons: first, the content of PE 27 and PE 29 failed to comply
with the requirements of MIL. R. EVID. 902 in a manner that
impacted the underlying records’ trustworthiness; and second,
the Government failed to give appropriate written notice of PE
27 and PE 29 as required by MIL. R. EVID. 902(11).

                           Discussion

     We review a military judge’s ruling admitting evidence for
an abuse of discretion. United States v. Hursey, 55 M.J. 34, 36
(C.A.A.F. 2001). The abuse of discretion standard is a strict
one, calling for more than a mere difference of opinion. United
States v. McElhaney, 54 M.J. 120, 130 (C.A.A.F. 2000).

     MIL. R. EVID. 902(11) provides that some items of evidence
are self-authenticating. In other words, they require no
extrinsic evidence of authenticity to be admitted. This
includes “the original or a copy of a domestic record that meets
the requirements of Mil. R. Evid. 803(6)(A)-(C) [the hearsay
exception for records of regularly conducted activity], as shown
by a certification of the custodian[.]” MIL. R. EVID. 803(6)
excepts from the definition of hearsay, records:

     (A) made at or near the time by someone with
     knowledge;

     (B) kept in the course of regularly conducted activity
     of a uniformed service or business; and

     (C) made as a regular practice of that service or
     business.

     The record of regularly conducted activity should not be
admitted if the method or circumstances of preparation indicate
a lack of trustworthiness. MIL. R. EVID. 803(6)(E).

      Here, both PE 27 and PE 29 comply with the requirements of
MIL. R. EVID. 803(6).

     The declarant of PE 27, a Senior Point-of-Sale Supervisor
for the Marine Corps Exchange system, confirmed that he was the

                                3
custodian of the records contained in PE 14 through PE 22. He
certified that the information in those records was entered “at
or near the time of each respective transaction,” that the
information was kept under a duty to maintain records of
“regularly conducted activities,” and that such record keeping
was a routine practice of the Marine Corps Exchange system.1 PE
14 through PE 22, were records of point-of-sale transactions
made at Marine Corps Exchanges, the kinds of records one would
expect the Marine Corps Exchange to maintain in the ordinary
course of business. As a result, the records were not facially
suspicious and did not inherently evince a lack of
trustworthiness.

     Likewise, the declarant of PE 29, a Senior Relationship
Manager for Bank of America Merchant Services, confirmed that he
was the custodian of the records contained in PE 23. He
certified that the information in those records was entered “at
or near the time of each respective transaction,” that the
information was kept under a duty to maintain records of
“regularly conducted activities,” and that it was “routine
practice to keep such records” by Bank of America Merchant
Services.2

     Further, the declarant certified that PE 23 incorporated
records from other entities, procured and relied upon by Bank of
America to be accurate in the ordinary course of business.3 As
PE 23 contained “charge back” notifications from Bank of America
which would, by necessity, incorporate notifications from other
banks or defrauded customers, it did not indicate a lack of
trustworthiness that Bank of America would incorporate other
entities’ records and maintain “charge back” notices in the
regular course of its business.

     MIL. R. EVID. 902(11) also requires reasonable written notice
of the intent to offer such a record and an opportunity to
inspect the record and certification before trial, or at a later
time if the military judge allows for good cause.

     Here, the Government expected a previously called witness
to authenticate the underlying transaction records and bank
records. When that witness was unable to lay the appropriate
foundation, Government counsel procured the authenticating

1
    PE 27 at 1.
2
    PE 29 at 1.
3
    Id.
                                4
certificates and provided them to the defense the morning the
certificates were offered in court. After the defense objected,
the military judge weighed two possible remedies——grant a
continuance or prohibit the Government from introducing the
evidence——while hewing to this court’s guidance in United States
v. Preuss, 34 M.J. 688, 691 (N.M.C.M.R. 1991), that “any ruling
that excludes otherwise admissible evidence in a process that is
supposed to find the truth and provide justice should be
reserved for only the most egregious circumstances.” He chose
to order a continuance, and we find no abuse of discretion in
his decision to do so. Any disadvantage caused by the late
notice was remedied by a full and fair opportunity to verify the
certificates’ provenance.

                          Composition of the Panel

     Prior to trial, the defense objected to the exclusion of
junior members under convening order #1b-13, which appointed
only officer members O-4 and above, enlisted members E-8 and
above, and no warrant officers. This panel was detailed after
the staff judge advocate (SJA) solicited only these specific
categories of senior nominees from subordinate commanders. The
SJA provided the CA draft convening order #1b-13 and the
applicable questionnaires for consideration. The CA then picked
those members as were suggested to him by the SJA without
modification. The military judge agreed with the defense’s
objection finding that the panel selection process improperly
excluded potential members based on rank.

     Subsequently, the CA was provided a draft, amended
convening order, #1c-13, containing the same members previously
detailed under convening order #1b-13. The CA was also
furnished with his entire alpha roster of over 8,000 members
with instructions that he could substitute any proposed member
for someone senior to the accused meeting the Article 25
criteria. After consideration, the CA detailed the same members
stating, “I know these individuals personally and selected them
specifically because I am convinced they meet the qualifications
for membership.”4

     The following day, the court-martial reconvened under
amended convening order #1c-13. Defense counsel objected,
asserting that the Article 25 defect had not been cured as



4
    Appellate Exhibit XXXVI at 3.


                                     5
evidenced by the selection of the same members which still
excluded those junior to paygrades O-4 and E-8.

     This time the military judge disagreed with the defense,
finding that neither the CA nor the SJA had an improper motive
or intent to “stack” the member pool to achieve a particular
result; that the SJA’s original method of soliciting members,
albeit improper, was performed in a good-faith intent to adhere
to the Article 25 criteria; that any appearance that members had
been excluded based on rank had been resolved through the second
selection process; and that convening order #1c-13 was created
in compliance with Article 25.5

     In ruling the military judge relied on United States v.
Dowty, 60 M.J. 163 (C.A.A.F. 2004) (holding that the convening
authority may not use additional selection criteria not in
Article 25); and United States v. Kirkland, 53 M.J. 22 (C.A.A.F.
2000) (holding that an unresolved appearance of unfairness in
member selection constitutes grounds for reversal).6

     The appellant, after consultation with his counsel,
requested to be tried by military judge alone. The appellant
stated that there were many reasons for making this decision but
that the judge’s ruling on members selection was a factor in his
decision. The military judge ensured the appellant understood
his right to trial by members, that he consulted with his
counsel before making his election, and that he made his
election knowingly and voluntarily. The military judge then
accepted the appellant’s request for trial by military judge
alone.

                                Discussion

     Whether a panel is properly selected is a matter of law
that this court reviews de novo. United States v. Gooch, 69

5
  The defense introduced, as evidence of a motive to “stack” the panel, a
Sergeant Major-authored email, AE XXXVII. The email stated that “[e]vidence
is only part of what you need [at a court-martial,]” and opined that members
in the ranks of captain, gunnery sergeant, and staff sergeant do not fully
understand the impacts of their findings in criminal cases. The Sergeant
Major was not within the CA’s command and was not stationed on the same coast
as the CA. There was no evidence showing the CA or any member of the CA’s
command received the email. As a result, the military judge found that the
email did not present an issue of unlawful command influence. Record at 266-
67. Although raised by the appellant in his brief, we find the email
irrelevant to our analysis. Appellant’s Brief of 5 Jun 2015 at 3.
6
    Record at 276-77.
                                      6
M.J. 353, 358 (C.A.A.F. 2011). We are bound by the findings of
the military judge unless they are clearly erroneous. United
States v. Benedict, 55 M.J. 451, 454 (C.A.A.F. 2001).
     The CA must personally select members who are “best
qualified for the duty by reason of age, education, training,
experience, length of service, and judicial temperament.” Art.
25(d)(2), UCMJ. The CA may rely on subordinates to nominate
potential court members. Benedict, 55 M.J. at 455. However,
“[w]hen the request for nominations does improperly include or
exclude certain members,” the court must “ensure that those
actions do not taint the selection by the convening authority.”
United States v. Roland, 50 M.J. 66, 69 (C.A.A.F. 1999).
     In a case of systematic exclusion of members by rank, it is
the responsibility of the defense to establish the improper
exclusion. Kirkland, 53 M.J. at 24. Once improper exclusion
has been shown, the burden shifts to the Government “to
demonstrate that the error did not ‘materially prejudice the
substantial rights of the accused.’” Dowty, 60 M.J. at 173
(quoting Art. 59(a), UCMJ).

     Here the military judge found, and we agree, that the
initial improper nomination process used by the SJA for
convening order #1b-13 did not taint the subsequent selection of
court members by the CA for convening order #1c-13. The CA’s
consideration of the entire command roster, and his clearly
stated understanding of the qualification criteria,
“irrespective of rank, group or class,”7 removed any
contamination remaining from the earlier process. As a result,
convening order #1c-13 did not represent an improper exclusion
of members based on rank.

     Moreover, even if the appellant did establish an improper
exclusion, the Government has demonstrated the error did not
materially prejudice a substantial right of the accused.

     To determine prejudice from a systematic exclusion of
members by rank in cases in which the appellant elects trial by
military judge alone, we must first determine whether his
election was predicated on the improperly selected panel. See
United States v. Greene, 43 C.M.R. 72, 79 (C.M.A. 1970) (stating
that, for constitutional violations of Article 25, “th[e]
accused's conviction cannot stand if he abandoned his right (and
was tried by military judge alone) to avoid trial before an
improperly selected panel . . .”) (citation and internal

7
    AE XXXVI at 3.
                                7
quotation marks omitted); United States v. Hilow, 32 M.J. 439,
444 (C.M.A. 1991) (Cox, J., dissenting in part, “I would
carefully examine the record to determine why the accused
forewent his right to a trial by members”).

     If the Government demonstrates that the appellant’s
decision to elect trial by military judge alone was not tainted,
then the systematic exclusion was harmless and did not
materially prejudice a substantial right of the appellant.
However, if the appellant’s decision was predicated by the
exclusion, then the Government must demonstrate that the
appellant was provided both a fair panel and the appearance of a
fair panel. United States v. Ward, 74 M.J. 225, 228 (C.A.A.F.
2015) (applying United States v. Bartlett, 66 M.J. 426 (C.A.A.F.
2008) and Kirkland, supra, in conjunction, to analyze
prejudice).

     In this case, the appellant elected trial by military judge
alone, in part, because he believed the panel was defective. As
a result, the appellant’s decision was predicated on the panel
issue, and we must analyze whether the appellant was provided
both a fair panel and the appearance of a fair panel.

Provided a Fair Panel

     To determine whether the appellant was provided the benefit
of a fair panel in a case tried by military judge alone, we
consider several factors relevant to the factual circumstances
presented in this case, including whether: the convening
authority’s motivation in detailing the members was benign; the
convening authority was authorized to convene the court-martial;
and the court members met the criteria in Article 25, UCMJ.
Ward, 74 M.J. at 228. Likewise, we consider whether, “taken as
a whole in the context of this trial, a court-martial’s
legality, fairness, and impartiality were put into doubt by the
military judge’s actions.” United States v. Martinez, 70 M.J.
154, 157 (C.A.A.F. 2011) (citation and internal quotation marks
omitted).

     We do not find any cause to question the fairness of the
panel based on the processes used by the CA to generate
convening order #1c-13. This is particularly so given that
neither the CA nor the SJA had an improper motive to “stack” the
member pool and the CA clearly identified members he personally
knew and believed were best qualified from among all members of
his command using the Article 25 criteria. Also, we find no
evidence that the court-martial’s legality, fairness, or

                                8
impartiality were put into doubt by any action of the military
judge. By every objective measure, the appellant received a
fair trial from this military judge.

Appearance of a Fair Panel

     To determine whether the appellant was provided the
appearance of a fair panel, we ask whether “the essential
fairness and integrity of the military justice system” requires
reversal. Kirkland 53 M.J. at 25 (citation and internal
quotation marks omitted). In this case, the CA’s subsequent
actions——choosing members that he personally knew met the
Article 25 criteria after he consulted the entire command
roster——resolved any remaining appearance of improper exclusion.
For these reasons, we do not find any cause to question the
essential fairness and integrity of the court-martial. From an
appearance perspective, the integrity of the system has not been
damaged by this case’s overwrought member selection process.

     For these reasons, the Government has successfully
shouldered its burden of demonstrating a lack of material
prejudice to a substantial right of the appellant.

                             Conclusion

     After careful consideration, we conclude that the findings
and the sentence are correct in law and fact and that no error
materially prejudicial to the substantial rights of the
appellant was committed. Arts. 59(a) and 66(c), UCMJ. The
findings and the sentence are therefore affirmed.



                              For the Court




                              R.H. TROIDL
                              Clerk of Court




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