                       UNITED STATES, Appellee

                                    v.

            Calvin J. DAVENPORT, Sergeant First Class
                       U.S. Army, Appellant

                              No. 13-0573

                       Crim. App. No. 20081102

       United States Court of Appeals for the Armed Forces

                        Argued April 28, 2014

                       Decided August 11, 2014

RYAN, J., delivered the opinion of the Court, in which ERDMANN,
STUCKY, and OHLSON, JJ., joined. BAKER, C.J., filed a separate
dissenting opinion.



                                 Counsel

For Appellant: Captain Brian D. Andes (argued); Colonel Kevin
Boyle, Lieutenant Colonel Peter Kageleiry Jr., and Major Vincent
T. Shuler (on brief); Major Jacob D. Bashore, Captain Jack D.
Einhorn, and Captain A. Jason Nef.

For Appellee: Captain Carrie L. Ward (argued); Colonel John P.
Carrell, Lieutenant Colonel James L. Varley, and Major Kenneth
W. Borgnino (on brief).

Military Judges:    Jeffery R. Nance, Edward J. O’Brien, and Mark
A. Bridges


       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Davenport, 13-0573/AR


     Judge RYAN delivered the opinion of the Court.

     Contrary to his pleas, a military judge sitting as a

general court-martial convicted Appellant of four specifications

of conspiracy, in violation of Article 81, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. § 881 (2012), seven

specifications of extortion, in violation of Article 127, UCMJ,

10 U.S.C. § 927 (2012), and two specifications of bribery, in

violation of Article 134, UCMJ, 10 U.S.C. § 934 (2012).     The

adjudged sentence provided for two years of confinement,

reduction to E-1, and a bad-conduct discharge.   The convening

authority approved only one year of confinement, but otherwise

approved the adjudged sentence.

     Before the United States Army Court of Criminal Appeals

(ACCA), Appellant argued that the omission of the testimony of a

Government merits witness -- Sergeant (SGT) MS -- rendered the

transcript nonverbatim and incomplete, preventing approval of

any sentence that included either confinement greater than six

months or a punitive discharge.   United States v. Davenport, No.

ARMY 20081102, 2013 CCA LEXIS 361, at *9–*10, 2013 WL 1896277,

at *3 (Apr. 18, 2013).   On October 31, 2011, the ACCA ordered a

post-trial hearing pursuant to United States v. DuBay, 17 C.M.A.

147, 37 C.M.R. 411 (1967), to provide an opportunity to

reconstruct the testimony of SGT MS.   Id. at *10–*11, 2013 WL

1896277, at *3.   On April 2, 2012, the DuBay hearing was

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United States v. Davenport, 13-0573/AR


conducted and the military judge made findings of fact

concerning SGT MS’s testimony.    Id. at *11, 2013 WL 1896277, at

*3.   Based on these findings, on April 18, 2013, the ACCA found

that the record in this case was “both substantially verbatim

and complete for appellate review purposes.”    Id. at *15, 2013

WL 1896277, at *4.

      We granted review of the following issue:

      WHETHER THE OMISSION OF TESTIMONY FROM A TRIAL
      TRANSCRIPT RENDERS THE TRANSCRIPT NON-VERBATIM AND
      THEREFORE SUBJECT TO THE REMEDY IN [RULE FOR COURTS-
      MARTIAL (R.C.M.)] 1103(f)(1) WHERE THE WITNESS’S
      TESTIMONY IS ONLY RELEVANT TO AN OFFENSE OF WHICH
      APPELLANT HAS BEEN ACQUITTED; OR, WHETHER SUCH
      OMISSION SHOULD BE ADDRESSED UNDER R.C.M.
      1103(b)(2)(A) (REQUIREMENT FOR A COMPLETE RECORD) AND
      THUS TESTED FOR WHETHER THE PRESUMPTION OF PREJUDICE
      HAS BEEN REBUTTED. SEE UNITED STATES v. GASKINS, 72
      M.J. 225 (C.A.A.F. 2013); UNITED STATES v. HENRY, 53
      M.J. 108 (C.A.A.F. 2000).

United States v. Davenport, 73 M.J. 200 (C.A.A.F. 2014)

(order granting review).

      We hold that, under the facts of this case, the complete

omission of SGT MS’s testimony on the merits from the trial

transcript was a substantial omission that rendered the

transcript nonverbatim.    Consequently, the convening authority

was limited to the remedies listed in R.C.M. 1103(f).    The

decision of the ACCA is reversed.




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United States v. Davenport, 13-0573/AR


                             I.   FACTS

     On December 1, 2007, Appellant was assigned to a unit

headquartered on Forward Operating Base (FOB) Rustamiyah, Iraq.

During the latter part of December 2007 and the early part of

January 2008, Appellant, Command Sergeant Major (CSM) Ofelia

Webb, and First Sergeant (1SG) Patrick A. Faust, decided to open

and operate a hair salon, “Hair Zone,” and barbershop, “Razor

Edge,” on the FOB.   The plan involved using locally acquired

property to furnish both the salon and barbershop and employing

Iraqi and third-country nationals to provide the hair care

services.   Consistent with the plan, Mr. Hasseeb Muhammadatta

Khalil Al-Sawad, a local vendor, delivered an estimated

$4,680.00 of property to the businesses.   Al-Sawad believed he

was providing the property on credit with the expectation that

Appellant would pay him at a later date.   After delivery,

Appellant, commenting on an unrelated contract that Al-Sawad

obtained, in part, through Appellant’s efforts, confronted Al-

Sawad, along with 1SG Faust, and told him that because of

Appellant’s efforts, he would not pay Al-Sawad for the property.

Appellant then directed Al-Sawad to alter a receipt for the

property and note that the payment was made in full.   Al-Sawad

did so because he believed both that Appellant and 1SG Faust

were “big people” of “high rank” and, based on statements from




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United States v. Davenport, 13-0573/AR


Appellant, that he would be permanently removed from FOB

Rustamiyah if he did not comply.

     Appellant and his partners also required each employee at

the barbershop and hair salon to pay them $300.00 a month, as a

condition of employment, and threatened loss of employment and

removal from the FOB if the employee refused.    Additionally,

Appellant and 1SG Faust also used their position of power to

affect cable and Internet services on the FOB by negotiating

with Netgate, a cable and Internet provider, for the company to

pay them $30,000.00 in exchange for operating on the FOB.

     Appellant’s trial ended on December 11, 2008.    The trial

counsel had a duty to review the record for errors before

authentication.   See R.C.M. 1103(i)(1)(A).   Notwithstanding the

military judge’s and trial counsel’s review, the record was

authenticated on June 2, 2009; missing from the record was the

entire testimony on the merits of SGT MS, a Government witness.

The record indicates only that the Government called SGT MS as a

witness.   Although the court reporter recorded the testimony, at

some point after the case concluded the computer on which the

court reporter recorded the testimony was reimaged, preventing

recovery of the original recorded data.    The testimony’s

omission from the record was first discovered by appellate

defense counsel on appeal to the ACCA.    On July 30, 2010,

Appellant asserted, inter alia, that the omission of SGT MS’s

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United States v. Davenport, 13-0573/AR


testimony from the record rendered the transcript incomplete

under Article 54(c)(1)(A), UCMJ, 10 U.S.C. § 854(c)(1)(A)

(2012), and nonverbatim under R.C.M. 1103(b)(2)(B).

     On October 31, 2011, the ACCA ordered a post-trial DuBay

hearing to provide the Government an opportunity to reconstruct

SGT MS’s testimony.     The DuBay hearing occurred on April 2,

2012.      While SGT MS testified at the DuBay hearing, he could not

recall certain details of his testimony, and acknowledged only

that he might recall the information if he reheard the specific

questions asked at the court-martial again at the DuBay hearing.

Even then his memory was imperfect, as he could not recall if

had been asked about testifying under a grant of immunity at

trial. 1    After the DuBay hearing, the military judge made several

findings of fact, including:

          The full substance and extent of [SGT MS’s]
     testimony is not altogether clear. With the exception
     of the military judge, no witnesses testifying during
     this hearing maintained any notes related to this
     trial. . . .

          . . . [SGT MS]’s testimony consisted of a direct
     examination[,] . . . a cross-examination by one of the
     appellant’s defense counsel, and a re-direct
     examination. . . .

          [SGT MS]’s testimony mostly related to the “money
     laundering” charges contained in Additional Charge IV,
     of which the appellant was found not guilty. . . .

1
  The trial military judge, however, testified that his trial
notes indicated that when the Government asked, SGT MS admitted
he had been granted immunity.

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United States v. Davenport, 13-0573/AR


          [SGT MS] was also asked whether he was aware of
     any threats made by the appellant and whether the
     appellant had ever taken money or property from “local
     nationals.” [SGT MS] testified that he was not aware
     of any such threats made by appellant or of any
     property or money taken by the appellant from “local
     nationals.”

     . . . .

          There is some evidence that objections were made
     by the defense counsel during the testimony of [SGT
     MS], but there is no evidence to establish what those
     objections were.

                        II.   ACCA DECISION

     After considering the findings from Appellant’s DuBay

hearing, the ACCA found that “the government was unable to

obtain or adequately reconstruct the exact testimony of SGT MS.”

Davenport, 2013 CCA LEXIS 361, at *14, 2013 WL 1896277, at *4.

Despite this fact, and in tension with the DuBay military

judge’s conclusion that the substance and extent of SGT MS’s

testimony was “not altogether clear” and that the testimony only

“mostly” related to two money laundering charges of which

Appellant was acquitted, the ACCA found that SGT MS “had no

information relevant to any offense of which Appellant was

convicted” and that his testimony “only related to the two money

laundering specifications of which appellant was acquitted.”

Id. at *11–*14, 2013 WL 1896277, at *3–*4 (emphasis added)

(footnote omitted).   It reasoned from this that “‘not one fact

of substance or materiality to a legal or factual issue is



                                 7
United States v. Davenport, 13-0573/AR


missing from [appellant’s] transcript,’” id. at *14, 2013 WL

1896277, at *4 (alteration in original), and concluded that “the

record in appellant’s case [was] both substantially verbatim and

complete for appellate review purposes.”      Id. at *15, 2013 WL

1896277, at *4.

                          III.   DISCUSSION

                                  A.

     Whether a record is complete and a transcript is verbatim

are questions of law that this Court reviews de novo.        Cf.

United States v. Henry, 53 M.J. 108, 110 (C.A.A.F. 2000).          “The

requirement that a record of trial be complete and substantially

verbatim in order to uphold the validity of a verbatim record

sentence is one of jurisdictional proportion that cannot be

waived.”   Id.   Although “[a nonverbatim] transcript and an

incomplete record are separate and distinct errors under the

R.C.M., we think that distinction has been blurred based on

dicta” in various cases before this Court.     United States v.

Gaskins, 72 M.J. 225, 230 (C.A.A.F. 2013).

      “A verbatim transcript includes:    all proceedings

including sidebar conferences, arguments of counsel, and rulings

and instructions by the military judge . . . .”     R.C.M.

1103(b)(2)(B) Discussion.    A verbatim transcript of all sessions

is required when:




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United States v. Davenport, 13-0573/AR


     (i) Any part of the sentence adjudged exceeds six
     months confinement, forfeiture of pay greater than
     two-thirds pay per month, or any forfeiture of pay for
     more than six months or other punishments that may be
     adjudged by a special court-martial; or
     (ii) A bad-conduct discharge has been adjudged.

R.C.M. 1103(b)(2)(B).   Here, a verbatim transcript is required

because the military judge sentenced Appellant to two years of

confinement and a bad-conduct discharge.   See R.C.M.

1103(b)(2)(B).   By definition, if there is not a verbatim

transcript, there is also no “complete record.”   R.C.M.

1103(b)(2)(D).   However, while in the case of most incomplete

records prophylactic measures are not prescribed, and the

missing material or remedy for same are tested for prejudice,

where the record is incomplete because the transcript is not

verbatim, the procedures set forth in R.C.M. 1103(f) control.

Gaskins, 72 M.J. at 230-31; see also infra pp. 13-15.

     In assessing either whether a record is complete or whether

a transcript is verbatim, the threshold question is “whether the

omitted material was ‘substantial,’ either qualitatively or

quantitatively.”   United States v. Lashley, 14 M.J. 7, 9 (C.M.A.

1982).   Cf. Gaskins, 72 M.J. at 229 (stating that a

“substantial” omission makes a record incomplete).     The

transcript in this case omitted SGT MS’s entire testimony.

Thus, our focus is on the narrow threshold question whether the




                                 9
United States v. Davenport, 13-0573/AR


omission in the transcript was qualitatively or quantitatively

substantial, which would render it nonverbatim.

     Despite the dictionary definition of the term “verbatim,”

transcripts need not be “[w]ord for word,” but must be

“‘substantially verbatim.’”   Lashley, 14 M.J. at 8 (noting that

“literal compliance with this [verbatim] requirement is

impossible”).   Logically, if R.C.M. 1103(b)(2)(B) required every

transcript to be word for word, “every record could be assailed

as deficient” because “[m]any, if not all, records fail to

record every word spoken at a hearing.”   United States v.

Nelson, 3 C.M.A. 482, 486, 13 C.M.R. 38, 42 (1953).   As such, a

transcript may be deemed “substantially verbatim” though it has

certain omissions.   In contrast, omissions are qualitatively

substantial if the substance of the omitted material “related

directly to the sufficiency of the Government’s evidence on the

merits,” and “the testimony could not ordinarily have been

recalled with any degree of fidelity.”    Lashley, 14 M.J. at 9.

Omissions are quantitatively substantial unless “the totality of

omissions . . . becomes so unimportant and so uninfluential when

viewed in the light of the whole record, that it approaches

nothingness.”   Nelson, 3 C.M.A. at 487, 13 C.M.R. at 43.

     The trial transcript from Appellant’s original court-

martial recites:

     [Military Judge]:   [Trial Counsel], what’s next?

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United States v. Davenport, 13-0573/AR


     [Trial Counsel]:   [SGT MS], sir.

     [SGT MS], U.S. Army, was called as a witness for the
     prosecution, was sworn and testified as follows:

     DIRECT EXAMINATION

     Questions by the trial counsel:

     [The court-martial was called to order at 1717, 9
     December 2008.} [sic]

     [Military Judge]: The court is again called to order.
     All parties present when the court recessed are again
     present.

     As evidenced here, the transcript entirely omitted the

testimony of SGT MS, a Government merits witness.   The omission

of the testimony of an entire merits witness is almost

necessarily substantial where, as here, the content of the

testimony is equivocal even after attempts to reconstruct it at

a DuBay hearing.   In this case the omission was substantial both

quantitatively, because the entire testimony was omitted, and

qualitatively, because the substance of the omitted testimony

presumably relates directly to the Government’s evidence on the

merits and could not be recalled with fidelity.   See Lashley, 14

M.J. at 9.   Cf. United States v. Stoffer, 53 M.J. 26, 27

(C.A.A.F. 2000) (omission of three exhibits presented during

sentencing was substantial because the exhibits presumably

related to the sentencing decision and the contents were not

identified in the record of trial).




                                11
United States v. Davenport, 13-0573/AR


     While the DuBay military judge’s findings stated that “[SGT

MS]’s testimony mostly related to the ‘money laundering’

charges . . . of which the appellant was found not guilty,” the

findings also acknowledged that “[t]he full substance and extent

of [SGT MS’s] testimony is not altogether clear.”   Where, as

here, the Government was unable to obtain or adequately

reconstruct the testimony of SGT MS, we are hard pressed to

agree with the ACCA that we can be certain of what SGT MS

testified about.   Moreover, we cannot accept that the testimony

only related to the money laundering charges of which Appellant

was acquitted, given that the DuBay military judge also found

that SGT MS “was also asked whether he was aware of any threats

made by the appellant and whether the appellant had ever taken

money or property from ‘local nationals,’” 2 -- information which

relates directly to the seven extortion specifications.    On the

whole, the ACCA’s characterization of the DuBay military judge’s

equivocal findings is more definitive than the record warrants.

Deference is due to the DuBay military judge’s findings, but not

to the ACCA’s recharacterization of those findings.

     The uncertain content of SGT MS’s testimony, including

several admissions that he could not remember his testimony at

2
  When the DuBay military judge asked this question, SGT MS
responded, “‘To my recollection, I never saw him make threats or
anything. I never even heard anything about him making
threats.’”

                                12
United States v. Davenport, 13-0573/AR


trial; his testimony that, in essence, he had to be asked the

right questions in order to jog his memory as to what he had

been asked about at trial; and his lack of memory with respect

to whether he had been asked about testifying under a grant of

immunity, is compounded by the DuBay military judge’s finding

that “[w]ith the exception of the military judge, no witnesses

testifying during this hearing maintained any notes related to

this trial.”

     Furthermore, the findings merely offered a summary of the

substance of the testimony and the “[i]nclusion of the substance

of a portion of the record of proceedings dealing with material

matter is not a verbatim transcript of the record.”   United

States v. Gray, 7 M.J. 296, 298 (C.M.A. 1979) (quoting United

States v. Sturdivant, 1 M.J. 256, 257 (C.M.A. 1976)).   On

balance, the omission of SGT MS’s testimony was substantial and,

therefore, the transcript here was nonverbatim.

                               B.

     Having concluded that the record is nonverbatim, it is

necessary to determine the appropriate remedy for the error.

Although it is true that the Manual for Courts-Martial, United

States (MCM), “does not limit the [ACCA’s] discretion to remedy

an error in compiling a complete record,” Gaskins, 72 M.J. at

230, when “a verbatim transcript cannot be prepared,” the

remedial options are limited and definitively circumscribed.

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United States v. Davenport, 13-0573/AR


See id. at 230–31; see also Edmond v. United States, 520 U.S.

651, 657 (1997) (“Ordinarily, where a specific provision

conflicts with a general one, the specific governs.”).

     The MCM provides that, in the case of a nonverbatim

transcript:

     [T]he convening authority may: (1) Approve only so
     much of the sentence that could be adjudged by a
     special court-martial, except that a bad-conduct
     discharge, confinement for more than six months, or
     forfeiture of two-thirds pay per month for more than
     six months, may not be approved; or (2) Direct a
     rehearing as to any offense of which the accused was
     found guilty if the finding is supported by the
     summary of the evidence contained in the record,
     provided that the convening authority may not approve
     any sentence imposed at such a rehearing more severe
     than or in excess of that adjudged by the earlier
     court-martial.

R.C.M. 1103(f).   The plain language of R.C.M. 1103(f) indicates

there are only two options available to the convening authority

when a verbatim transcript cannot be prepared.

     Because the DuBay hearing failed to reconstruct the

testimony of SGT MS, as the ACCA acknowledged, the ACCA erred in

holding that the transcript was nonetheless verbatim, and there

is no authority for us to apply the remedy for an incomplete

record to a nonverbatim transcript, as the Government urges.

Accordingly, given our conclusion that the transcript remained

nonverbatim after the DuBay hearing and that, in this context,

R.C.M. 1103(f) limits the remedies available to a rehearing or a




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United States v. Davenport, 13-0573/AR


modified sentence, we hold that it was error for the ACCA to

affirm Appellant’s sentence.

                          IV.   DECISION

     The decision of the United States Army Court of Criminal

Appeals is reversed and the case is remanded to the Judge

Advocate General for return to the Convening Authority for

action consistent with R.C.M. 1103(f).




                                15
United States v. Davenport, No. 13-0573/AR


     BAKER, Chief Judge (dissenting):

     The facts in this case are novel and hopefully will not be

repeated.    There is no doubt that the trial transcript failed to

include the entirety of Sergeant (SGT) MS’s testimony.     The

question presented is whether this omission was so substantial

as to render the transcript nonverbatim and, if so, whether it

was subject to the sentencing limitations of Rule for Courts-

Martial (R.C.M.) 1103(f).

     The majority concludes the “omission of the testimony of an

entire merits witness is almost necessarily substantial . . .

because the substance of the omitted testimony presumably

relates directly to the Government’s evidence on the merits”

and, on this basis, it concludes Appellant’s sentence must be

returned for action by the convening authority in accordance

with R.C.M. 1103(f)(1), thus reversing the decision of the CCA.

United States v. Davenport, __ M.J. __, __ (11-12, 15) (C.A.A.F.

2014).    I disagree and therefore respectfully dissent.

     A.   R.C.M. 1103(b)(2)(B)

     In determining whether a transcript is verbatim, the

threshold question is “whether the omitted material was

‘substantial,’ either qualitatively or quantitatively.”     United

States v. Lashley, 14 M.J. 7, 9 (C.M.A. 1982).    “Sometimes the

omissions are so substantial that the only remedy is a new

trial,” but at other times, “the omitted material is
United States v. Davenport, No. 13-0573/AR


sufficiently retrievable that a record can be salvaged and

pronounced ‘substantially verbatim’” as governed by “individual

factors.”    Id. at 8–9 (citations omitted).

     In the present case, the CCA ordered a DuBay hearing in

order to determine if the omitted testimony was sufficiently

retrievable such that the trial record could be salvaged and the

transcript deemed substantially verbatim.      Findings of fact at a

DuBay hearing “will not be overturned unless they are clearly

erroneous or unsupported by the record.”    United States v.

Leedy, 65 M.J. 208, 213 (C.A.A.F. 2007).    Based on testimony

from witnesses including the military judge, the DuBay military

judge determined that SGT MS’s testimony related primarily to

the money laundering charges of which Appellant was acquitted.

The CCA subsequently found the record in Appellant’s case to be

“substantially verbatim and complete for appellate review

purposes.”    United States v. Davenport, No 20081102, 2013 CCA

LEXIS 361, at *15, 2013 WL 1896277, at *4 (Army Ct. Crim. App.

April 18, 2013)   It further found that SGT MS “had no

information relevant to any offense of which [A]ppellant was

convicted.”   2013 CCA LEXIS 361, at *14, 2013 WL 1896277, at *4.

Thus, the CCA not only affirmed the DuBay hearing findings of

fact, but went beyond, and concluded that SGT MS’s testimony

related to money laundering charges of which Appellant was

ultimately acquitted.

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United States v. Davenport, No. 13-0573/AR


     I agree with the CCA.   First, R.C.M. 1103(b)(2)(B) states

that a verbatim transcript is required for “all sessions except

sessions closed for deliberations and voting.”   R.C.M.

1103(b)(2)(B) (emphasis added).   Of note, it does not say that a

verbatim transcript is required for all witnesses.     In theory,

it is possible that a witness’s testimony could be qualitatively

or quantitatively unimportant, even if omitted in its entirety.

Here, the DuBay hearing determined that SGT MS’s testimony was

primarily directed at the money laundering charges of which

Appellant was ultimately acquitted.   Therefore, I believe that

the missing testimony was not materially important to render the

transcript nonverbatim.

     Second, there was no evidence put forth by Appellant that

the military judge’s findings of fact were “clearly erroneous”

nor is this addressed by the majority opinion.   The Government

also notes that SGT MS’s testimony was “not referenced by the

trial counsel during argument on findings, and was also never

referenced by either party during the sentencing proceedings.”

Brief for Appellee at 16, United States Davenport, No. 13-0573

(C.A.A.F. Mar. 31, 2014).

     Further, SGT MS did not testify in the parallel

coconspirator cases, underscoring that his testimony was limited

to the money laundering charges specific to Appellant.    Thus,

while SGT MS’s testimony was omitted from the trial transcript,

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United States v. Davenport, No. 13-0573/AR


in my view this omission did not contain a “fact of substance or

materiality to a legal or factual issue.”    United States v.

Nelson, 3 C.M.A. 482, 487, 13 C.M.R. 38, 43 (1953).

     This case is distinguished from Lashley where this Court

found prejudice because the missing testimony related to

specific elements of an offense for which the appellant was

ultimately found guilty.   But this is unlike the present case

where the missing testimony “mostly” related to money laundering

charges of which Appellant was acquitted.    The majority attempts

to draw a link between SGT MS’s testimony and “the seven

extortion specifications,” effectively raising the specter that

the missing testimony could be linked to charges of which

Appellant was found guilty.   Davenport, __ M.J. at __ (12).     In

doing so, it correctly states that the DuBay military judge

asked SGT MS “whether he was aware of any threats made by the

[A]ppellant and whether the [A]ppellant had ever taken money or

property from ‘local nationals.’”    Id. at __ (7).   But, as

reflected in the colloquy below and acknowledged by the

majority, SGT MS answered this question in the negative; he did

not, in fact, have any information related to these questions.

Id. at __ (7).   As the record indicates:

     [TC]:   Now, did any of the questioning -- did any of it go
             into -- did any of your testimony go into Sergeant
             Davenport receiving bribes?



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United States v. Davenport, No. 13-0573/AR


     [MS]:   No, they didn’t get in depth as far as asking me
             anything of that nature, sir.

    [TC]:    Okay. Or, how about anything to do with him making
             threats to local nationals?

    [MS]:    They did ask me that and I told them, “To my
             recollection, I never saw him make threats or
             anything. I never even heard anything about him
             making threats.”

     To be sure, the DuBay military judge recognized that “[t]he

full substance and extent of [SGT MS’s] testimony is not

altogether clear.”   That being said, the military judge noted

what could be ascertained regarding SGT MS’s testimony, namely:

(1) SGT MS testified pursuant to a grant of immunity and his

testimony was “relatively short” as compared to other witnesses;

(2) SGT MS’s testimony “mostly related to the ‘money laundering’

charges . . . of which [A]ppellant was found not guilty”; (3)

SGT MS was not aware of any threats made by Appellant or of any

property or money taken from local nationals; (4) SGT MS denied

that a meeting took place with an individual named Haider; and

(5) that it was unclear whether SGT MS was asked about his

reduction in rank or the underlying reason for it.   On that last

point, the DuBay military judge further noted that “[t]here is

no evidence to suggest that such questioning . . . could have

affected the rights of the appellant at trial.”   And that, “even

if the defense counsel was unable to cross-exam [SGT MS] about




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United States v. Davenport, No. 13-0573/AR


the reason for his reduction in rank, there could have been no

prejudicial effect on the rights of the appellant at trial.”

     Based on these findings, the CCA determined not only that

it was clear that “SGT MS’s testimony was on the merits and only

related to the two money laundering specifications of which

[A]ppellant was acquitted,” but also that SGT MS “had no

information relevant to any offense of which [A]ppellant was

convicted.”   2013 CCA LEXIS 361, at *14, 2013 WL 1896277, at *4

(footnotes omitted).   Thus, the DuBay military judge’s findings

were not clearly erroneous and the CCA did not err in its

characterization of the findings.    As a result, on the unusual

facts of this case, I would conclude the omission was not

qualitatively substantial and did not prejudice the Appellant.

     B.   R.C.M. 1103(f)

     As a distinct point, this case raises an anomaly with

respect to the application of R.C.M. 1103(f).    The majority

returns the case to the convening authority for the sentence

limiting remedy under R.C.M. 1103(f) which comes into effect

“[i]f, because of loss of recordings or notes, or other reasons,

a verbatim transcript cannot be prepared.”    R.C.M. 1103(f).

This rule proposes two remedies for nonverbatim transcripts.

R.C.M. 1103(f)(1) states the convening authority may “[a]pprove

only so much of the sentence . . . except that a bad-conduct

discharge, confinement for more than six months, or forfeiture

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United States v. Davenport, No. 13-0573/AR


of two-thirds pay per month for more than six months, may not be

approved.”    R.C.M. 1103(f)(2) states the convening authority may

also “[d]irect a rehearing as to any offense of which the

accused was found guilty if the finding is supported by the

summary of the evidence contained in the record.”    R.C.M.

1103(f)(2) (emphasis added).

     R.C.M. 1103(f)(2) authorizes a rehearing only for those

offenses for which the accused was found guilty.    But R.C.M.

1103(f)(1) -- which allows the accused to receive a sentence

reduction -- does not.   This creates an absurd result.

Specifically, this allows a sentence reduction in a case where

the summarized evidence goes only to an offense for which the

accused was found not guilty, yet does not allow a rehearing in

the same instance (obviously double jeopardy would not permit a

rehearing on a matter for which the accused was acquitted).

This makes no sense and surely was not the intent of the

drafters.    Logic and statutory construction principles --

namely, that one can derive the meaning of an ambiguous

construction in the context of the words or phrases surrounding

it -- would suggest that R.C.M. 1103(f)(1) is similarly

qualified to any offense of which the accused was found guilty. 1

If that were the case, then the application of the sentence


1
  The statutory construction principle of noscitur a sociis
essentially means “it is known by the company it keeps.”
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United States v. Davenport, No. 13-0573/AR


limiting provision of R.C.M. 1103(f)(1) would be invalid because

in my view the summary of evidence from SGT MS’s testimony did

not relate to an offense of which Appellant was found guilty.

     Therefore, I do not believe the missing testimony was

sufficiently substantial to render the transcript nonverbatim

nor do I believe that the sentence limiting provision of R.C.M.

1103(f)(1) applies towards offenses of which the accused was

found not guilty.   Accordingly, I respectfully dissent.




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