                       UNITED STATES, Appellee


                                     v.


                Murali S. KULATHUNGAM, Specialist
                       U.S. Army, Appellant


                               No. 99-0967

                       Crim. App. No. 9700340


    United States Court of Appeals for the Armed Forces


                      Argued October 10, 2000

                      Decided March 16, 2001

     CRAWFORD, C.J., delivered the opinion of the Court, in
which SULLIVAN, GIERKE, EFFRON, and BAKER, JJ., joined.
SULLIVAN, J., filed a concurring opinion.

                                 Counsel

For Appellant: Mr. Stephen J. Dunn (argued); Captain
Stephanie L. Haines (on brief); Colonel Adele H. Odegard,
Major Scott R. Morris, and Major Kirsten V. Brunson.

For Appellee: Major Anthony P. Nicastro (argued); Colonel
Russell S. Estey, Major Patricia A. Ham, and Captain
Kelly D. Haywood (on brief); Captain Paul T. Cygnarowicz.

Military Judge:      Paul L. Johnston




  THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Kulathungam, No. 99-0967/AR


     Chief Judge CRAWFORD delivered the opinion of the

Court.

     Before a military judge sitting alone as a general

court-martial, appellant pled guilty to conspiracy to

commit larceny of government and individual property,

larceny of military property, larceny of private property

(4 specifications), and housebreaking, in violation of

Articles 81, 121, and 130, Uniform Code of Military

Justice, 10 USC §§ 881, 921, and 930, respectively.

Appellant was sentenced to a bad-conduct discharge,

confinement for 1 year, total forfeitures, and reduction to

the lowest enlisted grade.    The convening authority

approved the sentence, and the Court of Criminal Appeals

affirmed.    We granted review of the following issues:

            I. WHETHER THE MILITARY JUDGE'S FAILURE TO MAKE
            FINDINGS REGARDING APPELLANT'S GUILT AS TO THE
            CHARGES AND SPECIFICATIONS PRIOR TO FINAL
            ADJOURNMENT MATERIALLY PREJUDICED APPELLANT'S
            SUBSTANTIAL RIGHTS.

            II. WHETHER THE MILITARY JUDGE IMPROPERLY
            ENTERED FINDINGS REGARDING APPELLANT'S GUILT
            AFTER FINAL ADJOURNMENT IN A POST-TRIAL 39(a)
            SESSION TO THE SUBSTANTIAL PREJUDICE OF
            APPELLANT.

            III. WHETHER THE GOVERNMENT'S MANUFACTURING OF
            PART OF THE TRIAL PROCEEDINGS IN THE RECORD OF
            TRIAL AND THE PROFFERING OF THE RECORD OF TRIAL
            AS ACCURATE TO THE MILITARY JUDGE FOR
            AUTHENTICATION SO DIRECTLY IMPACTED UPON
            APPELLANT'S RIGHTS TO A FAIR AND IMPARTIAL REVIEW
            BY THE CONVENING AUTHORITY AND THE APPELLATE


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United States v. Kulathungam, No. 99-0967/AR


             COURTS, THAT DISMISSAL WITH PREJUDICE IS
             WARRANTED.

     For the reasons stated herein, we affirm.

                              FACTS

     After appellant pled guilty to the offenses, the

military judge conducted a detailed inquiry to ensure

appellant’s pleas were knowing and voluntary.     During the

inquiry, the judge determined that appellant understood all

the elements of each offense, and that by pleading guilty

he waived his rights to plead not guilty, to present

evidence, and to testify under oath.     To guarantee

appellant understood these things, and to further ensure

his guilty pleas were not the result of force or threats,

the military judge personally addressed appellant

throughout the entire process.

     The military judge also conducted a thorough inquiry

into a written pretrial agreement between appellant and the

Government in which appellant agreed to plead guilty in

exchange for the Government placing a limit on his

punishment.    The military judge then specifically informed

appellant, “[Y]our plea of guilty is provident and is

accepted.”    When this process was complete, the military

judge proceeded immediately with the sentencing phase of

appellant’s trial, rather than first announcing the



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United States v. Kulathungam, No. 99-0967/AR


findings as he was required to do.     Trial counsel did not

point this out, while defense counsel admitted in a post-

trial affidavit that he noticed the military judge’s

omission but decided, for tactical reasons, not to mention

the omission to the military judge or the convening

authority.

     After trial, trial counsel and the court reporter

agreed to insert the findings into the record without

informing the military judge, and they did so.     When this

was discovered, a post-trial proceeding in revision was

conducted at which the military judge officially announced

the findings of guilty.   His prior failure to do so was his

only departure from the procedural rules governing courts-

martial.

                          DISCUSSION

     Article 54(c)(1)(A), UCMJ, 10 USC § 854(c)(1)(A),

requires a verbatim record of trial in a general court

martial “in which the sentence adjudged” includes a

punitive discharge.   This record of trial “shall be

authenticated by the signature of the military judge.”

Art. 54(a).   The accuracy of the verbatim record is

important because it facilitates appellate review and

instills confidence in the military justice system.     To

ensure accuracy, the UCMJ has always required a copy of the


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United States v. Kulathungam, No. 99-0967/AR


record to be served on the accused.         Art. 54(d); Art.

54(c), Act of May 5, 1950, Pub.L.No. 89-506, 64 Stat. 107,

125; H.R. Rep. No. 491, 81st Cong., lst Sess. 27 (1949).

      The Manual for Courts-Martial places responsibility on

trial counsel for the preparation of a verbatim record of

trial.   RCM 808 & 1103(b)(1), Manual for Courts-Martial,

United States (1995 ed.).       If there is “an apparent error

[or] omission ... by the court-martial,” a post-trial

proceeding in revision may be held, provided the omission

does not materially prejudice the rights of the accused.

RCM 1102(b)(1).     Certainly, it is inappropriate for a trial

counsel to add to the record of trial things that were not

said or done at the court-martial.         However, such

misconduct1 does not require reversal when there is no

impact on the pleas or the sentence.         Cf. Bank of Nova

Scotia v. United States, 487 U.S. 250 (1988)(trial court

lacks authority to dismiss an indictment based on alleged

prosecutorial misconduct without an actual showing of

prejudice); United States v. Williams, 504 U.S. 36, 46-47

(1992)(reversed a Tenth Circuit ruling sustaining a

dismissal of an indictment because of the prosecutor's

failure to disclose to the grand jury exculpatory evidence


1
  Army Regulation 27-26, Rules of Professional Conduct for Lawyers (1
May 1992), adopts in substance the ABA Model Rules of Professional
Conduct (1983).


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United States v. Kulathungam, No. 99-0967/AR


possessed by the Government, but left open the door for

“enforcing or vindicating” conduct that is proscribed by

rule, statute, or the Constitution).

     This is not the first time there has been an omission

at trial.    In United States v. Mayfield, 45 MJ 176 (1996),

the judge noticed after the trial that there was no timely,

oral or written request for trial by judge alone.    He

appropriately directed a post-trial session to correct the

omission from the record.    That could easily have been done

here, because prior to the omission by the judge as to

findings, he spent more than 30 minutes to an hour going

over in detail all the elements of each offense, and

ensuring that appellant understood them and agreed his

conduct violated them.    Moreover, appellant then described

in his own words exactly how he committed each and every

offense.    As a result, there was simply no doubt among any

of the parties at trial that appellant had committed the

charged offenses and had pled guilty in order to benefit

from a pretrial agreement which again listed each of the

offenses to which he was pleading guilty.

     In this case, trial counsel should have called the

omission to the attention of the military judge.    If this

situation should arise again, trial counsel should seek

advice from the military judge or a more experienced


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United States v. Kulathungam, No. 99-0967/AR


attorney to avoid the “train wreck” that occurred in this

case.   In any event, we hold that the errors in this case

did not substantially prejudice appellant.

     The decision of the United States Army Court of

Criminal Appeals is affirmed.




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United States v. Kulathungam, 99-0967/AR


    SULLIVAN, Judge (concurring):



    I agree with the outcome of the majority opinion and write

separately to highlight the actions of the trial counsel (a

member of the Bar) and the court reporter (a senior non-

commissioned officer, E-7, with 11 years of active service).   The

trial counsel and the court reporter, discovering that the judge

forgot to announce the “findings” during the trial, inserted the

missing actions and words of the judge into the record of trial.

They corrected the record to reflect that a critical portion of

the trial (“announcement of the findings”) happened when it did

not.



    At the conclusion of the providence inquiry, including a

discussion of the pretrial agreement, the record of trial as

originally authenticated states the following:



          MJ: Thank you. Specialist Murali
          Kulathungam, I find that your plea of
          guilty is made voluntarily and with full
          knowledge of its meaning and effect. I
          further find that you have knowingly,
          intelligently, and consciously waived your
          rights against self-incrimination; to a
          trial of the facts by a court-martial; and
          to be confronted by the witnesses against
          you. Accordingly, your plea of guilty is
          provident and is accepted. However, I
          advise you that you may request to
          withdraw your guilty plea at any time
          before the sentence is announced, and if
          you have a good reason for your request, I
          will grant it.
United States v. Kulathungam, 99-0967/AR



           Accused and counsel please rise.

           [ACC and counsel did as directed.]

           Specialist Murali Kulathungam, in
           accordance with your plea of guilty, this
           court finds you:

                               FINDINGS

           Of Charge I and its Specifications:
           Guilty;
           Of the Specification of Charge II and
           Charge II: Guilty; and
           Of the Additional Charge and its
           Specification: Guilty.

           Please be seated.

           [ACC and counsel resumed their seats]


(Emphasis added) (R. 57-58).     Trial counsel approved the court

reporter’s suggestion that the matters in bold be added to the

record.   Trial counsel also failed to notify the military judge

or defense counsel about these additions, and the military judge

authenticated this record without being informed of them.     See

RCM 1103(i) Manual for Courts-Martial, United States (1995 ed.)

(duty of trial counsel to ensure an accurate record).



    This was not a “train wreck” (which implies an accident), but

an intentional false alteration of an official document (the

record of trial).   I think most judges and attorneys would

condemn such conduct.   Our justice system must function on the

basis of law and facts, not expediency and deception.     Although



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United States v. Kulathungam, 99-0967/AR


there was an error here, the error did not materially prejudice

the substantial rights of the accused.   Article 59(a), UCMJ, 10

USC § 859(a).   Accordingly, I would affirm.




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