                  U NITED S TATES AIR F ORCE
                 C OURT OF C RIMINAL APPEALS
                              ________________________

                                   No. ACM 39247
                              ________________________

                                 UNITED STATES
                                     Appellee
                                           v.
                              Ryne M. SEETO
                    Captain (O-3), U.S. Air Force, Appellant
                              ________________________

           Appeal from the United States Air Force Trial Judiciary
                             Decided 26 October 2018 1
                              ________________________

Military Judge: Andrew Kalavanos.
Approved sentence: Dismissal and confinement for 10 months. Sen-
tence adjudged 24 July 2016 by GCM convened at Robins Air Force
Base, Georgia.
For Appellant: Michael J. Millios, Esquire (argued); Major Jarett F.
Merk, USAF.
For Appellee: Captain Peter F. Kellett, USAF (argued); Lieutenant
Colonel Joseph J. Kubler, USAF; Major Tyler B. Musselman, USAF;
Mary Ellen Payne, Esquire.
Before JOHNSON, DENNIS, and LEWIS, Appellate Military Judges.
Judge DENNIS delivered the opinion of the court, in which Senior
Judge JOHNSON and Judge LEWIS joined.
                              ________________________

       This is an unpublished opinion and, as such, does not serve as
       precedent under AFCCA Rule of Practice and Procedure 18.4.
                          ________________________


1   We heard oral argument in this case in a closed session on 6 September 2018.
                      United States v. Seeto, No. ACM 39247


DENNIS, Judge:
    Appellant was charged with one specification of attempted rape, one
specification of aggravated sexual contact, one specification of assault
consummated by a battery, one specification of conduct unbecoming an officer
and gentleman, and one specification of indecent conduct in violation of
Articles 80, 120, 128, 133 and 134, Uniform Code of Military Justice (UCMJ),
10 U.S.C. §§ 880, 920, 928, 933, 934. Appellant pleaded guilty, by exceptions
and substitutions, to the specification of indecent conduct, but a panel of
officer members convicted him of indecent conduct as charged. The panel also
convicted Appellant of the specification of aggravated sexual contact and
acquitted him of the remaining offenses. Appellant was sentenced to a
dismissal and ten months confinement. The convening authority approved
the sentence as adjudged.
    Through counsel, Appellant raises six issues on appeal: (1) whether Ap-
pellant’s transcript is non-verbatim when the Government lost an entire day
of transcript and the military judge refused to authenticate the record as ver-
batim; (2) whether the specification alleging indecent conduct fails to state an
offense when the President preempted the Government from creating novel
charges under Article 134, UCMJ, for acts covered by Articles 80 through
132, 10 U.S.C. §§ 880–932, UCMJ; (3) whether the staff judge advocate (SJA)
committed unlawful command influence when she ordered the military judge
to her office, during trial, ex parte; (4) whether Appellant’s rights to present a
complete defense and meaningful cross-examination were violated when the
military judge excluded evidence of BV’s motive to fabricate offered pursuant
to Mil. R. Evid. 412; (5) whether the specification alleging indecent conduct
was an unreasonable multiplication of charges with the specification alleging
aggravated sexual contact and should have been dismissed pretrial; and (6)
whether the Government committed a due process violation when it took 277
days to take action on the case despite knowing that Appellant was serving
confinement that could not be approved because there was a non-verbatim
transcript. 2



2 Appellant also raises ten issues pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982): (1) the charges were improperly referred to trial; (2) the military judge
erred when he denied Appellant’s motion to sever; (3) the military judge erred in ad-
mitting excited utterance testimony; (4) the military judge abused his discretion in
not suppressing Appellant’s statements to police; (5) the SJA erroneously advised the
convening authority regarding panel selection; (6) the military judge abused his dis-
cretion in denying one of Appellant’s challenges for cause to a panel member; (7) trial
counsel’s argument was improper; (8) the indecent conduct specification is legally
(Footnote continues on next page)


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                     United States v. Seeto, No. ACM 39247


    We find that Appellant’s transcript is non-verbatim, set aside the offenses
for which he was found guilty, and authorize a rehearing. Given our resolu-
tion of this issue, we need only address two additional issues: whether the
specification alleging indecent conduct fails to state an offense, and whether
the Government violated Appellant’s due process rights. 3 We disagree with
Appellant’s assertion that the Government was preempted from charging in-
decent conduct under Article 134, UCMJ, but find that the Government vio-
lated Appellant’s due process rights when it took 277 days to take action on
Appellant’s case.

                                  I. BACKGROUND
    This is the third time this case has appeared before us for review.
    We first reviewed the case to consider whether Appellant was entitled to a
writ of mandamus ordering the convening authority to defer Appellant’s con-
finement until a determination could be made as to whether his record of tri-
al was substantially verbatim in accordance with Article 54, UCMJ, 10
U.S.C. § 854. Seeto v. Levy, Misc. Dkt. No. 2016–15, 2017 CCA LEXIS 136
(A.F. Ct. Crim. App. 22 Feb. 2017) (unpub. op.) (Seeto I). There, we held that
the convening authority’s failure to identify any reasons for denying Appel-
lant’s deferment request constituted error. We vacated the convening author-
ity’s denial of Appellant’s deferment request and issued a writ of mandamus
ordering the convening authority to comply with the requirements of Rule for
Courts-Martial (R.C.M.) 1101(c)(3).
    When the convening authority complied, we again examined the case, this
time to resolve Appellant’s petition for a writ of habeas corpus. Seeto v. Levy,
Misc. Dkt. No. 2016–15 (f rev), 2017 CCA LEXIS 201 (A.F. Ct. Crim. App. 21
Mar. 2017) (unpub. op.) (Seeto II). We declined to grant Appellant’s petition
noting that “the assessment of a petitioner’s writ is not whether the petition-
er has presented a meritorious case as to why he should be released, but ra-
ther whether his confinement is illegal.” Id. at *4–5 (citation omitted). We


and factually insufficient; (9) the legal office engaged in prosecutorial misconduct by
forcing Appellant to register as a sex offender; and (10) the legal office engaged in
prosecutorial misconduct by violating Appellant’s patient-psychotherapist confidenti-
ality.
3 We have considered the 13 remaining issues raised by Appellant and find they are
either mooted by the findings adjudged at trial or warrant no further discussion or
relief in light of our resolution of the issue regarding Appellant’s non-verbatim tran-
script. See United States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987).




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                     United States v. Seeto, No. ACM 39247


further noted that, at the time, the convening authority “retain[ed] the option
of directing a rehearing with regard to [Appellant’s] offenses, including the
offense to which he pleaded guilty, subjecting [Appellant] to a term of con-
finement equal to that adjudged at his initial trial . . . .” Id. at *7.
    We now review the case on direct appeal.

                                  II. DISCUSSION
A. Non-Verbatim Transcript
   At the core of this case is the missing audio-recording of an Article 39(a),
UCMJ, 10 U.S.C. § 839(a), session from Appellant’s trial. Appellant asserts
that the missing session renders the record non-verbatim contrary to the re-
quirements of Article 54, UCMJ, and that the absence of a verbatim record
has resulted in material prejudice. We agree.
    1. Additional Facts
    The facts surrounding this issue take place over a period of approximately
nine months, but are best conveyed in three phases: (a) Appellant’s 8 March
2016 motions hearing; (b) the discovery and attempted recovery of the miss-
ing audio recording; and (c) the reconstruction efforts.
       a. Appellant’s 8 March 2016 Motions Hearing
    The military judge held an Article 39(a), UCMJ, session on 8 March 2016
during which ten motions and their respective responses were marked and
introduced, most notably including a Defense Notice and Motion to Admit Ev-
idence under Mil. R. Evid. 412, and a Motion to Compel Discovery of Mil. R.
Evid. 513 Evidence. 4 BV, the victim in the case, testified during the hearing
along with two other witnesses, BV’s ex-boyfriend, Senior Airman (SrA) JD,
and the Government’s expert in forensic psychology, Dr. GD. Due to the sen-
sitive nature of the testimony, the hearing was closed in accordance with


4 The 8 March 2016 motions hearing addressed the following motions: (1) Defense
Motion for Appropriate Relief to Compel Discovery; (2) Defense Notice and Motion to
Admit Mil. R. Evid. 412 Evidence and Addendum; (3) Government Motion in Limine
regarding Appellant’s Misdemeanor Arrest; (4) Defense Motion to Sever the Specifi-
cation of the Additional Charge; (5) Defense Motion to Dismiss for Improper Referral
of Charges; (6) Defense Motion for Appropriate Relief to Preclude Mil. R. Evid. 404(b)
Evidence; (7) Defense Motion to Dismiss for Failure to State an Offense; (8) Defense
Motion to Dismiss for Failure to State an Offense—Preemption; (9) Defense Motion
to Dismiss for Unreasonable Multiplication of Charges; and (10) Government Motion
to Pre-Admit Evidence.




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                     United States v. Seeto, No. ACM 39247


R.C.M. 806(b)(5). Experts for both sides remained in the courtroom during
the hearing. One of the Government’s experts, Dr. MC, took type-written
notes and later provided them to trial counsel. The testimony covered a wide
array of topics regarding BV’s prior relationships and mental health and in-
cluded detailed accounts of specific instances. 5 The hearing lasted approxi-
mately five hours.
    The military judge did not make any rulings during the hearing.
       b. Discovery and Attempted Recovery of Missing Audio
    Shortly before trial concluded on 24 July 2016, the court reporter, AO,
discovered that the recording from the 8 March 2016 session was missing.
When she attempted to recover the audio from her backup recorder, she dis-
covered that the session had been recorded over with another proceeding. Af-
ter AO’s efforts to personally locate the missing recordings proved unsuccess-
ful, she informed her SJA, the military judge, and the parties that she had
lost the audio recording of the 8 March 2016 session. Following guidance from
her SJA and the military judge, AO contacted personnel at the Air Force Mil-
itary Justice Division (JAJM), who instructed her to substitute the missing
portion of the record with a copy of the court reporter log notes.
   On 12 October 2016, AO sent a copy of the transcript to the parties for au-
thentication. The transcript included the following reference to the missing
audio:
       THE MOTION HEARING WAS BEGUN ON 8 MARCH 2016.
       THE LOG NOTES FOR THE HEARING ARE ATTACHED TO
       THE RECORD OF TRIAL FOLLOWING THIS PAGE AND
       ARE NUMBERED AS PAGES 147.1 – 147.6.
       THE RECORDING OF THAT MOTION HEARING WAS
       LOST. ALL PARTIES TO THE TRIAL, INCLUDING THE
       MILITARY JUDGE, WERE NOTIFIED OF THE LOST RE-
       CORDING DURING THE TRIAL. NO RULINGS WERE
       MADE DURING THIS HEARING AND ALL EXHIBITS AD-
       MITTED DURING THE HEARING ARE ATTACHED TO THE
       RECORD OF TRIAL.




5Any discussion of sealed material in this opinion is limited to that which is neces-
sary for the analysis. See R.C.M. 1103A(b)(4).




                                         5
                   United States v. Seeto, No. ACM 39247


       THE MOTION HEARING THEN BEGAN AGAIN ON 10
       MARCH 2015 [sic]. THERE WAS NO HEARING HELD ON 9
       MARCH 2016.
   On or about 24 October 2016, the legal office sent AO’s computer to Global
CompuSearch, a digital forensics firm, in an attempt to recover the missing
audio files. On 7 November 2016, Global CompuSearch indicated that they
were unable to locate the missing files.
       c. Reconstruction Hearing
    When the audio files could not be recovered, the Government requested
an Article 39(a), UCMJ, session to attempt to reconstruct the missing por-
tions of the transcript. The military judge granted the Government’s request
and held a hearing on 21 November 2016. Three witnesses testified during
the hearing: AO, SrA JD, and Dr. GD. AO testified regarding her discovery of
the missing audio files, her subsequent efforts to recover them, and her prep-
aration of the record of trial. SrA JD and Dr. GD recounted their testimony in
response to questions from trial counsel. Both testified that their testimony
was generally the same as their original testimony, but also noted that they
could not be certain. The Government also introduced documentary evidence
including a three-page affidavit from BV, the court reporter’s log notes, and
ten pages of the typed notes Dr. MC had previously provided to trial counsel.
Notably, BV did not testify.
   After hearing argument from both sides, the military judge made the fol-
lowing findings at the close of the post-trial Article 39(a), UCMJ, hearing:
       Some of the factors I’ve considered are that several hours of
       audio hearing are missing, eight and a half months have
       passed since 8 March, which are relevant when considering
       [SrA JD]’s testimony and Dr. [GD]’s testimony here today. Part
       of the missing records include the complainant’s M.R.E. 412
       testimony. The court notes that it denied part or some of the re-
       lief requested in the defense’s 412 motion at trial. And in an ef-
       fort to reconstruct the complainant’s testimony, the govern-
       ment offered a sworn affidavit. I found [the government ex-
       pert]’s notes to be helpful as well as [AO]’s testimony and log
       notes and the fact that the rulings that the testimony was
       based on will be included in the record of trial.
       The court also notes that it denied part of a request in the de-
       fense’s 513 motion and again that was part of what [SrA JD]
       and Dr. [GD] testified to. As such, the court -- I believe that
       these omissions renders the transcript non-verbatim under



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                    United States v. Seeto, No. ACM 39247


       R.C.M. 1103[(b)](2)(B) and I will be authenticating the record
       as such.
    On 13 December 2016, the military judge issued a written ruling in which
he found that the omission was substantial and that the transcript was non-
verbatim. He authenticated the record accordingly the same day.
   2. Law
    A complete record of proceedings, including all exhibits and a verbatim
transcript, must be prepared for any general court-martial that results in a
punitive discharge or more than six months confinement. Article 54(c)(1),
UCMJ; R.C.M. 1103(b)(2). Whether a transcript is verbatim, and a trial rec-
ord complete, are questions of law we review de novo. United States v. Dav-
enport, 73 M.J. 373, 376 (C.A.A.F. 2014) (citation omitted). “The requirement
that a record of trial be complete and substantially verbatim in order to up-
hold the validity of a verbatim record sentence is one of jurisdictional propor-
tion that cannot be waived.” United States v. Henry, 53 M.J. 108, 110
(C.A.A.F. 2000) (citation omitted).
    “Verbatim” for the purposes of a court-martial transcript does not mean
word for word, but that the transcript be substantially verbatim. Davenport,
73 M.J. at 377 (quoting United States v. Lashley, 14 M.J. 7, 8 (C.M.A. 1982)).
“[T]he threshold question is whether the omitted material was substantial,
either qualitatively or quantitatively.” Id. (quoting Lashley, 14 M.J. at 9) (in-
ternal quotation marks omitted). Omissions “are qualitatively substantial if
the substance of the omitted material ‘related directly to the sufficiency of the
Government’s case on the merits’ and the ‘testimony could not ordinarily
have been recalled with any degree of fidelity.’” Id. “Omissions are quantita-
tively substantial unless ‘the totality of omissions . . . becomes so unim-
portant and so uninfluential when viewed in the light of the whole record,
that it approaches nothingness.’” Id. (alteration in original) (quoting United
States v. Nelson, 13 C.M.R. 38, 43 (C.M.A. 1953)).
    Each case is analyzed individually to decide whether an omission is sub-
stantial. United States v. Abrams, 50 M.J. 361, 363 (C.A.A.F. 1999). “A sub-
stantial omission renders a record of trial incomplete and raises a presump-
tion of prejudice that the Government must rebut.” United States v. Henry, 53
M.J. 108, 111 (C.A.A.F. 2000) (citing United States v. McCullah, 11 M.J. 234,
237 (C.M.A. 1981)) (additional citations omitted). “Insubstantial omissions
from a record of trial do not raise a presumption of prejudice or affect that
record’s characterization as a complete one.” Id.
   3. Analysis
    Applying this jurisprudence to Appellant’s case, we consider three ques-
tions. First, is the omission substantial? Second, if the omission is substan-

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                    United States v. Seeto, No. ACM 39247


tial, has the Government rebutted the presumption of prejudice resulting
therefrom? Third, if the Government did not rebut the presumption of preju-
dice, is Appellant entitled to relief? We address these questions in turn.
       a. Is the omission substantial?
   We find that the missing portion of the transcript is both qualitatively
and quantitatively substantial.
    With regard to the qualitative analysis, the Government asserts that the
omission was not substantial because the missing portions of the transcript
pertain only to motions practice, and thus do not relate directly to the suffi-
ciency of the Government’s case on the merits. We disagree. The Government
relies on the analysis in Lashley to support its assertion. In Lashley, the
Court of Military Appeals found that the missing portions of testimony from a
prosecution witness were a qualitatively substantial omission because they
directly related to the sufficiency of the Government’s evidence on the merits.
Lashley, 14 M.J. at 9. But Lashley does not preclude a finding that an omis-
sion is qualitatively substantial on other grounds. We also reject the implica-
tion that motion rulings cannot directly relate to the sufficiency of the Gov-
ernment’s evidence on the merits. Appellant was convicted of two offenses:
conduct unbecoming and indecent conduct. Though Appellant pleaded guilty
to conduct unbecoming, he did so only by exceptions and substitutions, and
pleaded not guilty to touching BV’s genitals and breasts with his hands. The
Government elected to litigate the conduct unbecoming offense as charged,
and as such, had the burden to prove Appellant’s guilt to the offenses as
charged. The Government offered a variety of evidence to prove Appellant’s
guilt, but BV’s testimony was a critical part of the Government’s case.
Throughout the trial, Appellant made repeated attempts to attack BV’s cred-
ibility using Mil. R. Evid. 412 and 513 evidence, some of which was excluded
by the military judge based on testimony missing from the record of trial. The
admission or exclusion of evidence affecting the credibility assessment of a
key Government witness directly relates to the sufficiency of the Govern-
ment’s evidence on the merits. We therefore find the missing motions hearing
constitutes a qualitatively substantial omission.
    With regard to the quantitative analysis, our conclusion that the absence
of an entire day of Appellant’s trial is a substantial omission is hardly sur-
prising. An entire day of Appellant’s trial is missing from the record. But the
Government asks us to turn our attention elsewhere, pointing to the fact that
the missing portion of the transcript involved only motions; that the motions
introduced during the hearing, along with the military judge’s written rul-
ings, are included as appellate exhibits in the record of trial; and that counsel
recounted the testimony and argument presented on the motions when seek-
ing reconsideration in later parts of the trial. The Government asserts that

                                       8
                    United States v. Seeto, No. ACM 39247


the unique combination of circumstances in this case render the omitted ma-
terial “so unimportant and so uninfluential when viewed in the light of the
whole record, that it approaches nothingness.” Nelson, 13 C.M.R. at 43. We
are not persuaded. Neither the presence of written pleadings nor references
to testimony and argument renders the omitted material insubstantial. “[A]
summary of the substance of the testimony and the ‘[i]nclusion of the sub-
stance of a portion of the record of proceedings dealing with material matter
is not a verbatim transcript of the record.’” Davenport, 73 M.J. at 378 (second
alteration in original) (quoting United States v. Gray, 7 M.J. 296, 298 (C.M.A.
1979)).
       b. Has the Government rebutted the presumption of prejudice?
    Having found the omissions both quantitatively and qualitatively sub-
stantial, we evaluate whether the Government has rebutted the presumption
of prejudice through its attempt to reconstruct the record. We find that it has
not.
     We, like the military judge, note that the duration of the missing hearing
in conjunction with the length of time before reconstruction efforts com-
menced would make a successful reconstruction “an almost impossible task.”
United States v. Boxdale, 47 C.M.R. 351, 352 (C.M.A. 1973); see Lashley, 14
M.J. at 9 (finding that “the prompt and thorough remedial action taken, the
assistance of the witness, and the availability of . . . [a] skeletal transcript”
constituted unique circumstances to render the reconstructed record verba-
tim). Even the successful reconstruction efforts found in other cases upon
which the Government relies consistently involved no more than 15 minutes
of transcript. See United States v. Watts, 22 M.J. 909 (A.F.C.M.R. 1986) (sub-
stantially verbatim transcript where 11 minutes of witness testimony was
promptly reconstructed); United States v. Caudill, 43 C.M.R. 924 (A.F.C.M.R.
1970) (substantially verbatim transcript where 15 minutes of witness testi-
mony was reconstructed). In both cases, the reconstructed testimony was cer-
tified as accurate by both parties and the military judge. Here, more than five
hours of transcript is missing from the record and the military judge found
that the transcript was non-verbatim.
    Still, the Government maintains that its efforts to reconstruct the record
overcome the presumption of prejudice for three reasons: (1) the matters at
issue during the 8 March 2016 hearing were mooted by the findings in Appel-
lant’s case; (2) the missing testimony was adequately reconstructed; and (3)
the missing testimony did not affect the sufficiency of the evidence supporting
the offenses for which Appellant was convicted.
   We agree that some of the motions, such as Appellant’s motion to sever
the charge of assault consummated by a battery involving a different victim,


                                       9
                        United States v. Seeto, No. ACM 39247


were mooted when Appellant was acquitted of that specification. Several oth-
ers were not. Indeed, the most hotly contested motion—the Defense Motion to
admit evidence under Mil. R. Evid. 412—remains an issue on appeal.
    The Government’s attempted reconstruction of the missing hearing, while
laudable, was largely unsuccessful. Perhaps most glaringly, BV’s testimony
was “reconstructed” with a three-page affidavit, one page of which consisted
only of the notary’s signature block. In addition, there are a number of dis-
crepancies between the reconstructed materials and what appeared to hap-
pen at the 8 March 2016 hearing. For instance, BV’s affidavit references
questioning by both parties and the military judge, yet it only details her re-
sponses to questions from trial defense counsel. A similar discrepancy was
made apparent when trial defense counsel pointed out that SrA JD’s recon-
structed testimony lasted approximately 12 minutes despite his original tes-
timony having lasted 26 minutes according to the court reporter’s log notes.
In yet another example, Dr. MC’s notes include language that makes no
sense in the context of the purported testimony as a whole. 6 Even with the
benefit of the entire record, examples such as these leave us with more ques-
tions than answers. Did BV testify to any matter of significance in response
to questions from trial counsel or the military judge? Why was SrA JD’s re-
constructed testimony less than half the length of the original? Do Dr. MC’s
notes reflect her own thoughts or is that what the witness testified? Most im-
portantly, is there testimony missing that should have influenced the mili-
tary judge’s ruling? These questions can hardly lead us to conclude that the
missing evidence is “so unimportant or so uninfluential when viewed in the
light of the whole record that it approaches nothingness.” Nelson, 3 C.M.A. at
43.
   In its final argument, the Government asserts that the sworn testimony
Appellant provided during his providence inquiry is sufficient evidence upon
which to affirm his findings of guilt, notwithstanding any prejudice resulting
from the missing portions of the record of trial. For reasons similar to those
we outlined in finding the omitted material qualitatively substantial, we dis-
agree. Appellant’s plea, while part of the Government’s case, was not the


6   Below is an excerpt of Dr. MC’s notes of SrA JD’s testimony:
          That day was she saying she did not have any recollection at all or
          just of the conversation we had had.
          He is dimwitted and does not understand anything complex…
          She said her amnesia was that she did not know who the people in
          her phone were…




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                     United States v. Seeto, No. ACM 39247


primary evidence offered to prove his guilt. Though we are permitted to use a
plea of guilty to establish “facts and elements common to both the greater
and lesser offense within the same specification,” we are prohibited from us-
ing Appellant’s plea to one specification “to supply proof of any of the essen-
tial elements of another specification.” United States v. Caszatt, 29 C.M.R.
521, 523 (C.M.A. 1960) (internal quotation marks and citations omitted); see
also United States v. Grijalva, 55 M.J. 223, 228 (C.A.A.F. 2001) (finding that
the military judge erred, albeit harmless, when considering Appellant’s
statements made during a providence inquiry as proof of a contested ele-
ment).
    Rarely does a record of trial a military judge has identified as non-
verbatim make its way to the appellate court for direct appeal under Article
66, UCMJ, 10 U.S.C. § 866. Though rare, it is not unprecedented. We ad-
dressed a strikingly similar issue in United States v. Snethen, 62 M.J. 579,
580 (A.F. Ct. Crim. App. 2005). In Snethen, nearly two months after the ap-
pellant’s trial had adjourned, the parties discovered that approximately one
hour of the hearing on a motion to suppress was missing due to an equipment
malfunction. Like here, the missing recording included witness testimony
and argument, but no rulings. The military judge attempted to reconstruct
the record. He used the notes he had taken during the proceeding, materials
provided by counsel, the court reporter’s notes, and the part of the transcript
recorded just before the equipment malfunctioned to develop questions and
answers for the two law enforcement agents whose testimony was missing. In
the end, the military judge in Snethen, like the military judge in this case,
found that despite best efforts at reconstruction, “the hurdles were too great”
to overcome. Id. at 581. This court agreed and held that “[t]he appellant was
prejudiced by a record that could not become ‘substantially verbatim’ given
the importance of the lost testimony and arguments, the lengthy duration of
the unrecorded portion of the trial, and the length of time between the trial
and reconstruction efforts.” Id. We find the same analysis holds true in this
case.
       c. Is Appellant entitled to relief?
    In the absence of a substantially verbatim transcript, we are unable to af-
firm the findings in this case, and therefore set them aside. 7 R.C.M. 1103(f)



7 Citing United States v. Santoro, 46 M.J. 344 (C.A.A.F. 1997), the Government asks
this court to affirm Appellant’s conviction for conduct unbecoming based solely upon
his plea of guilty by exceptions and substitutions. The issue in Santoro involved miss-
ing exhibits, not missing portions of the transcript. We do not “apply the remedy for
(Footnote continues on next page)


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                      United States v. Seeto, No. ACM 39247


provides two remedies available when a verbatim transcript cannot be pre-
pared: a cap on the punishment to be adjudged, 8 or if supported by the record,
a rehearing on the offenses for which Appellant was found guilty. Though
these two options would ordinarily cure transcript-related errors,
“[s]ometimes the omissions are so substantial that the only remedy is a new
trial.” Lashley, 14 M.J. at 9 (citing Boxdale, 47 C.M.R. 351) (additional cita-
tions omitted). The unique combination of circumstances in this case per-
suades us to find only one remedy appropriate—set aside the findings and
sentence and authorize a rehearing.
    As a threshold matter, we note that our decision to set aside the findings
does not divest us of our jurisdiction to review the case under Article 66,
UCMJ. “Once jurisdiction is acquired pursuant to Article 66, the Court of Mil-
itary Review has a statutory duty to review the case to completion unless the
accused has waived his right to appeal or withdrawn it.” Boudreaux v. United
States Navy-Marine Court of Military Review, 28 M.J. 181, 182 (C.M.A. 1989).
    As previously discussed, Appellant was convicted of two specifications al-
leging sexual contact with BV. What we know from the portions of the record
before us is that Appellant’s theory of the case focused solely on BV’s lack of
credibility. The military judge’s ruling to exclude certain evidence the De-
fense sought to admit under Mil. R. Evid. 412 was of such import to the De-
fense case that it sought reconsideration of the military judge’s ruling on at
least four separate occasions. On appeal, the parties continue their dispute
over whether the military judge erred in his decision to exclude the evidence.
Yet, we are precluded in our ability to review the military judge’s decision
because the transcript is incomplete. We are similarly hindered by the ab-
sence of counsel’s argument on the eight other motions introduced on 8
March 2016. See Mil. R. Evid. 103(a). The imposition of a lesser sentence
would not resolve the impact the missing motions hearing transcript has on
Appellant’s direct appeal. As in Boxdale, “[u]nder these circumstances, [Ap-


an incomplete record to a nonverbatim transcript. . . .” Davenport, 73 M.J. at 379; see
also Article 66(c), UCMJ.
8 R.C.M. 1103(f)(1) provides that if a verbatim transcript cannot be prepared, the
convening authority may “[a]pprove only so much of the sentence that could be ad-
judged by a special court-martial, except that a bad-conduct discharge, confinement
for more than six months . . . may not be approved.” (Emphasis added). Citing R.C.M.
1003(c)(2)(A)(ii), Appellant asserts that because officers cannot be adjudged confine-
ment at a special court-martial, Appellant could not be adjudged any confinement in
the absence of a verbatim transcript. In light of our decision to set aside the findings
and sentence, we need not decide the merits of Appellant’s assertion.




                                          12
                    United States v. Seeto, No. ACM 39247


pellant] is entitled to a rehearing at which a proper record may be prepared.”
47 C.M.R. at 352.
B. Preemption
    Because we authorize a rehearing on the finding of guilt as to indecent
conduct in violation of Article 134, UCMJ, in the interest of judicial economy,
we next consider Appellant’s assertion that the indecent conduct specification
under Article 134, UCMJ, fails to state an offense. Just as he did at trial, Ap-
pellant asserts that the indecent conduct charge alleging that he ejaculated
on BV’s stomach without her consent was preempted by Articles 120 and 128,
UCMJ. We disagree.
   1. Law
   We review claims of preemption de novo. United States v. Jones, 66 M.J.
704, 706 (A.F. Ct. Crim. App. 2008).
   The preemption doctrine generally prohibits application of Article 134,
UCMJ, to conduct covered by Articles 80 through 132, UCMJ. “[W]here Con-
gress has occupied the field of a given type of misconduct by addressing it in
one of the specific punitive articles of the code, another offense may not be
created and punished under Article 134, UCMJ, by simply deleting a vital
element.” United States v. Kick, 7 M.J. 82, 85 (C.M.A. 1979) (citation omit-
ted).
    Under the doctrine, prosecution is prohibited if the following two ques-
tions are answered in the affirmative: (1) whether Congress intended to limit
prosecution to a particular area or field defined in specific articles of the code;
and (2) whether the offense charged is composed of a residuum of elements of
a specific offense. United States v. McGuinness, 35 M.J. 149, 151–52 (C.M.A.
1992) (citing United States v. Wright, 5 M.J. 106, 110–11 (C.M.A. 1978)). The
application of the preemption doctrine is not triggered solely because the act
charged under Article 134, UCMJ, contains a subset of the elements of an
enumerated offense. Jones, 66 M.J. at 706–07; United States v. Feldkamp,
No. ACM 38493, 2015 CCA LEXIS 172, at *25 (A.F. Ct. Crim. App. 1 May
2015) (unpub. op.).
   2. Analysis
   Appellant’s assertion requires little discussion since our analysis in Feld-
kamp squarely applies to this case. The appellant in Feldkamp also alleged
that an indecent conduct allegation was preempted by Articles 120 and 128,
UCMJ. We disagreed:
       We find no error with the military judge’s ruling that the
       preemption doctrine did not prohibit the government from
       charging the appellant's indecent conduct under Article 134,

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                    United States v. Seeto, No. ACM 39247


       UCMJ. We need not even reach the issue of Congress’s intent,
       because the Article 134, UCMJ, offense charged is not com-
       posed of a residuum of elements of a specific offense. The inde-
       cent conduct offense charged adds an element not required by
       any applicable Article 120, UCMJ, or Article 128, UCMJ, of-
       fense—that the appellant’s conduct was indecent. . . . There-
       fore, this is not a situation where the government created and
       punished another offense by simply deleting a vital element.
Feldkamp, unpub. op. at *30–31; Cf. United States v. Long, Misc. Dkt. No.
2014–02, 2014 CCA LEXIS 386, at *11–13 (A.F. Ct. Crim. App. 2 Jul. 2014)
(unpub. op.) (declining to conclude the terminal element requirement for Ar-
ticle 134, UCMJ, offenses effectively eliminates the preemption doctrine).
    Appellant attempts to distinguish Feldkamp by pointing to the Govern-
ment’s decision to add the element of “without consent” to the indecent con-
duct specification. Appellant argues that, as charged, the specification alleges
a “non-consensual sexual offense preempted by the President.” Even if we ac-
cepted Appellant’s assertion that Congress intended Article 120, UCMJ, to
occupy the field of nonconsensual sexual offenses, Appellant has failed to es-
tablish that the indecent conduct specification is composed of a residuum of
elements of a specified offense. As the military judge stated in his ruling on
Defense’s preemption motion, “[t]he Government charged the [accused] with
an act under Article 134, UCMJ, that is not an offense under the enumerated
articles, and in so doing, has placed upon itself the burden of proving addi-
tional elements not contained within any offense under Article 120, UCMJ.”
    We find no error with the military judge’s ruling that the preemption doc-
trine did not prohibit the government from charging Appellant’s indecent
conduct under Article 134, UCMJ. The indecent conduct specification is not
composed of a residuum of elements of any specific offense because it adds an
element not required by any Article 120 or 128, UCMJ, offense—that Appel-
lant’s conduct was indecent. We see no basis upon which to conclude that the
Government was seeking to circumvent an element of an enumerated offense.
Should the Government choose to hold a rehearing to retry Appellant for in-
decent conduct, the preemption doctrine does not prohibit it from doing so.
C. Post-Trial Processing Delay.
   It took 277 days from the day Appellant was sentenced for the convening
authority to take action.
   1. Additional Facts
   As previously noted, Appellant’s trial concluded on 24 July 2016. Many of
the events taking place after Appellant’s trial have already been discussed,



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                   United States v. Seeto, No. ACM 39247


but some bear repeating and several others are important to our analysis of
Appellant’s due process claim.
    On 23 August 2016, 30 days after Appellant’s trial, the Defense submitted
a formal demand for speedy post-trial processing.
    On 19 October 2016, 87 days after Appellant’s trial, Appellant requested
deferment of confinement “while the Government figures out if it can con-
struct a verbatim transcript.”
   On 24 October 2016, 92 days after Appellant’s trial, the Government sent
the court reporter’s laptop to Global CompuSearch to attempt to recover the
missing recording.
    On 25 October 2016, 93 days after Appellant’s trial, the Defense renewed
its demand for speedy post-trial processing.
    On 31 October 2016, 99 days after Appellant’s trial, the convening author-
ity denied Appellant’s request for deferment of confinement. Though he did
not include the reasons for his decision, he later informed Appellant, “I de-
nied your original request for deferment of confinement . . . because I con-
cluded that the community’s interest in your continued confinement out-
weighed the interest of you and the community in deferral.”
   On 7 November 2016, 106 days after Appellant’s trial, Global Com-
puSearch notified the legal office it was unable to recover the lost audio.
   On 11 November 2016, 110 days after Appellant’s trial, Appellant filed a
complaint pursuant to Article 138, UCMJ, 10 U.S.C. § 938, in which he again
requested release from confinement.
   On 21 November 2016, 120 days after Appellant’s trial, the military judge
provided a ruling on the record that the omissions in the record were sub-
stantial and that he would authenticate the record as non-verbatim.
     On 9 December 2016, 138 days after Appellant’s trial, the convening au-
thority deferred a decision on Appellant’s Article 138, UCMJ, complaint “un-
til the completion of further fact gathering.”
   On 13 December 2016, 142 days after Appellant’s trial, the military judge
authenticated the record as non-verbatim.
    On 5 January 2017, 165 days after Appellant’s trial, the convening au-
thority again deferred his decision on Appellant’s Article 138, UCMJ, com-
plaint.
    On 2 February 2017, 193 days after Appellant’s trial, Appellant’s grandfa-
ther passed away. Appellant, having been raised by his grandfather for nine
years of his childhood, sought release from confinement to attend his grand-
father’s funeral. The convening authority did not grant Appellant’s request.

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                    United States v. Seeto, No. ACM 39247


   On 10 February 2017, 201 days after Appellant’s trial, the convening au-
thority denied Appellant’s request for relief under Article 138, UCMJ.
    On 28 February 2017, 219 days after Appellant’s trial, the convening au-
thority’s SJA completed his staff judge advocate recommendation noting that
“it was primarily defense litigation over the lost audio from the 8 March 2016
hearing that extended the post-trial processing in this case.” The SJA’s ad-
vice to the convening authority disagreed with the military judge’s finding
that the record was non-verbatim and recommended the convening authority
approve Appellant’s sentence as adjudged.
    On 16 March 2017, 235 days after Appellant’s trial, Appellant was re-
leased from confinement after having served his full sentence to confinement.
    On 27 April 2017, 277 days after Appellant’s trial, the convening took ac-
tion approving the adjudged sentence of ten months confinement and a dis-
missal.
   2. Law and Analysis
    Where the convening authority’s action is not taken within 120 days of
the end of trial, we apply the presumption of unreasonable post-trial delay
established by the United States Court of Appeals for the Armed Forces
(CAAF) in United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006). We re-
view de novo whether Appellant’s due process rights were violated because of
post-trial delay. Id. at 135 (citations omitted). In conducting our analysis, we
have considered the four factors set forth in Barker v. Wingo, 407 U.S. 514,
530–32 (1972): (1) the length of the delay; (2) the reasons for the delay; (3)
Appellant’s assertion of the right to timely review and appeal; and (4) preju-
dice. “[These] four factors are balanced, with no single factor being required
to find that post-trial delay constitutes a due process violation.” Moreno, 63
M.J. at 136 (citing Barker, 407 U.S. at 533). We apply these factors in turn.
       a. Length of the delay
   The 277 days it took the Government to complete the post-trial processing
in Appellant’s case was more than two times longer than the presumptively
unreasonable period set forth in Moreno. This factor weighs in Appellant’s
favor.
       b. Reasons for the delay
    In weighing the reasons for the delay, we look both to the “Government’s
responsibility for any delay, as well as any legitimate reasons for the delay.”
Id. As the CAAF noted in Moreno, “The processing in this segment is com-
pletely within the control of the Government . . . .” Id. (citation omitted).




                                      16
                      United States v. Seeto, No. ACM 39247


    The Government was made aware that the audio recording of an entire
session of the trial was missing prior to adjournment. Yet, over the course of
the first 80 days following Appellant’s trial the Government made only mini-
mal efforts to fulfill its responsibility under Article 54, UCMJ. The court re-
porter testified that she spent “at least a day” searching her computer for the
missing audio. When her search yielded no results, she consulted with other
Government representatives such as JAJM personnel and her SJA. According
to her testimony, the Government apparently intended to resolve the issue by
including a copy of her log notes and a statement in the record noting that
the recording was missing. Indeed, it was not until a newly-appointed defense
counsel questioned the adequacy of the record—81 days after Appellant’s tri-
al—that the Government initiated diligent efforts to ensure the record was
substantially verbatim.
    Our conclusion in this regard is based not upon speculation, but upon the
Government’s own accounts of its post-trial processing efforts. In a memo-
randum for record, trial counsel noted that the legal office contacted Global
CompuSearch “[a]s a result of Defense’s motion.” Similarly, in an email to
defense counsel on 25 October 2016, the wing chief of military justice stated,
“Since you want the [G]overnment to make every effort to ensure we can se-
cure the audio, does this also mean you are waiving the 120-day post-trial
Moreno Date? If not, we will attempt to press with what we have.” Appellant
declined to waive his right to speedy post-trial processing. And finally, in ad-
vising the convening authority of the reasons for the delay in post-trial pro-
cessing, the SJA noted, “While defense counsel’s aggressive litigation on be-
half of his client is laudable, [Appellant] should not reap a windfall as a re-
sult of the delays attributable to defense litigation.” We are troubled by this
analysis. Congress placed upon the Government the duty to prove Appellant’s
guilt; to construct a substantially verbatim record of the proceedings if the
approved sentence exceeds six months confinement or includes a punitive
discharge; and to uphold the right to due process Appellant is afforded under
the Fifth Amendment of the Constitution. 9 Any outcome resulting from Ap-
pellant’s efforts to ensure the Government performs its duties cannot be con-
sidered a windfall. 10



9   U.S. CONST. amend. V.
10 The defense litigation to which the SJA referred included Appellant’s petition for
extraordinary relief resulting in Seeto I and Seeto II. We note that Appellant’s peti-
tion for relief did not request a stay in the post-trial processing of his case, thus
providing no reason for the Government to further delay action in Appellant’s case.




                                         17
                      United States v. Seeto, No. ACM 39247


   The reasons for the delay cannot be attributed to Appellant. The record
was authenticated 142 days after Appellant’s trial and 135 days prior to the
convening authority’s action. This factor also weighs in Appellant’s favor.
       c. Assertion of right to timely review
    Appellant submitted a demand for speedy post-trial review on three sepa-
rate occasions following the conclusion of his trial. Appellant maintained his
desire for speedy post-trial processing even when the Government asked
whether he wanted to waive it to allow them to properly construct the record
of trial. This factor weighs heavily in Appellant’s favor.
       d. Prejudice
   Moreno sets forth three types of prejudice arising from post-trial pro-
cessing delays: oppressive incarceration, particularized anxiety or concern,
and impairment of Appellant’s ability to present a defense at a rehearing. 63
M.J. at 138–39 (citations omitted).
    Oppressive incarceration is “directly related to the success or failure of an
appellant’s substantive appeal. . . . [I]f an appellant’s substantive appeal is
meritorious and the appellant has been incarcerated during the appeal peri-
od, the incarceration may have been oppressive.” Id. at 139 (citation omitted).
Despite multiple requests for deferment, Appellant served his entire term of
confinement before action was taken in his case. He has prevailed on the very
issue for which he sought relief 87 days after his sentence was announced.
Under these circumstances, we find Appellant’s incarceration oppressive. 11
Thus, Appellant has established prejudice under this sub-factor.
   “[P]articularized anxiety or concern . . . is distinguishable from the nor-
mal anxiety experienced by prisoners awaiting an appellate decision.” Id. at
140. Appellant avers that the post-trial delay in his case caused anxiety and
concern for two reasons. First, Appellant points to the particularized anxiety


11 We recognize what could be considered an inconsistency between our finding here
and this court’s previous decision to deny Appellant’s petitions for extraordinary re-
lief. In doing so, we note first that the party seeking relief must meet three require-
ments to prevail in a petition for extraordinary relief: (1) that the right to relief is
clear and indisputable; (2) that there are no other adequate means to attain the re-
lief; and (3) that the writ is appropriate under the circumstances. Seeto II, unpub. op.
at *4. We declined to find Appellant’s confinement unlawful since, at the time we
considered the case, action had not yet been taken. Had the convening authority tak-
en action ordering a rehearing in accordance with R.C.M. 1103(f), Appellant could
have lawfully been confined for “a term of confinement equal to that adjudged at his
initial trial . . . .” Seeto II, unpub. op. at *7.




                                          18
                    United States v. Seeto, No. ACM 39247


he suffered as a result of his grandfather’s death. Appellant had been con-
fined for 193 days when his grandfather passed away. Notably, the military
judge had authenticated the record as non-verbatim, putting the Government
on notice that Appellant’s adjudged period of confinement could be in viola-
tion of R.C.M. 1103(f). Still, Appellant remained confined. Appellant also
points to the anxiety he suffered as a result of having to register as a sex of-
fender. The CAAF addressed a similar claim in Moreno in considering wheth-
er the appellant had been “living under the opprobrium of guilt when he . . .
has not been properly proven guilty and may indeed be innocent under the
law.” Id. at 139 (quoting Rheuark v. Shaw, 628 F.2d 297, 304 (5th Cir. 1980)).
The CAAF found credence in the appellant’s claim notwithstanding its
acknowledgement that, “[h]ad [the appellant]’s conviction been affirmed prior
to his release, registration as a sex offender would have been a proper conse-
quence of his conviction.” Id. Because we have set aside the conviction for
which Appellant was required to register as a sex offender, we too recognize
the particularized anxiety he has suffered as a result of the delay. Appellant
has established prejudice under this sub-factor.
    Conversely, Appellant has offered no evidence, and we find none, that his
ability to present a defense at a rehearing has been impaired by the delay in
this case. Appellant has failed to establish prejudice under this sub-factor.
    Having found that Appellant suffered both oppressive incarceration and
particularized anxiety and concern, we conclude that the fourth Barker fac-
tor, prejudice, also weighs in Appellant’s favor.
       e. Remedy
    As a final matter, we fashion an appropriate remedy for the violation of
Appellant’s due process rights. Relief for due process violations must be nar-
rowly tailored to the circumstances of the case. Id. at 143 (citation omitted).
The CAAF sets forth six remedies for courts to consider in determining what,
if any, relief is appropriate to resolve a Moreno violation. These include: (1)
day-for-day reduction in confinement or confinement credit; (2) reduction of
forfeitures; (3) set aside of portions of an approved sentence including puni-
tive discharges; (4) set aside of the entire sentence, leaving a sentence of no
punishment; (5) a limitation upon the sentence that may be approved by a
convening authority following a rehearing; and (6) dismissal of the charges
and specifications with or without prejudice. Id.
   Having set aside the findings and sentence and authorized a rehearing,
we find that the appropriate remedy is to limit the sentence that may be ap-
proved by a convening authority following a rehearing of Appellant’s case.




                                      19
                   United States v. Seeto, No. ACM 39247


                              III. CONCLUSION
    We hereby SET ASIDE the findings of guilt and the sentence. A rehear-
ing is authorized. In the event such a rehearing results in a finding of guilt,
the convening authority may approve no sentence of confinement greater
than 99 days. The record of trial is returned to the Judge Advocate General
for remand to an appropriate convening authority for action consistent with
this opinion. Article 66(d)-(e), UCMJ, 10 U.S.C. § 866(d)-(e).


                    FOR THE COURT



                    CAROL K. JOYCE
                    Clerk of the Court




                                      20
