                                     CORRECTED COPY *


UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                            Before
                                 WOLFE, BURTON, and EWING 1
                                   Appellate Military Judges

                              UNITED STATES, Appellee
                                          v.
                         Master Sergeant ANDREW D. STEELE
                            United States Army, Appellant

                                       ARMY 20170303

                          Headquarters, 7th Infantry Division
                 Lanny J. Acosta, Jr. and Sean Mangan, Military Judges
           Lieutenant Colonel James W. Nelson, Acting Staff Judge Advocate

For Appellant: Captain Steven J. Dray, JA (argued); Colonel Elizabeth G. Marotta,
JA; Major Julie L. Borchers, JA; Captain Steven J. Dray, JA (on brief); Colonel
Elizabeth G. Marotta, JA; Lieutenant Colonel Tiffany D. Pond, JA; Major Julie L.
Borchers, JA; Captain Steven J. Dray, JA (on reply brief).

For Appellee: Captain Brian Jones, JA (argued); Colonel Steven P. Haight, JA;
Lieutenant Colonel Eric K. Stafford, JA; Captain Jeremy Watford, JA; Captain Brian
Jones, JA (on brief).

                                          5 March 2019

                                   ---------------------------------
                                   MEMORANDUM OPINION
                                   ---------------------------------

    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

WOLFE, Senior Judge:

      During appellant’s trial, no audio was recorded for approximately twenty-
seven minutes of the defense sentencing case. Given the incomplete record of trial,
we are compelled to order a rehearing of appellant’s sentence.


*
    The opinion is corrected to properly reflect the initials of the court reporter.
1
    Judge Ewing decided this case while on active duty.
STEELE—ARMY 20170303

                                  BACKGROUND

       As appellant entered mixed pleas, we summarize the background facts from
both the contested and uncontested portions of appellant’s trial. 2

                   When security cameras catch the hot tub party

       Appellant was the First Sergeant of the 45th Hazardous Response Company.
In April 2016, appellant invited and entertained a group of about seven enlisted
soldiers from the company to his former apartment complex. Most of the soldiers
were the rank of Specialist or below. Private First Class (PFC) W was the sole
female in the group. Appellant provided alcohol to the group, knowing that some of
them were not of the legal drinking age. The apartment complex’s outdoor common
area had a hot tub and a security camera.

      Everyone got naked in the hot tub.

       With most of the group in the hot tub, appellant performed oral sex on PFC
W. Linking the security camera video with witness testimony, appellant placed each
of PFC W’s legs on his shoulders and placed his head between her legs. When done,
two other soldiers serially performed oral sex on PFC W, with appellant telling them
to “go for it.” 3 Appellant gets in and out of the hot tub naked and walks directly in
front of the security camera.



2
  A military judge sitting as a general court-martial convicted appellant, pursuant to
his pleas, of one specification of violating a general order and one specification of
fraternization in violation of Articles 92 and 134, Uniform Code of Military Justice
[UCMJ], 10 U.S.C. §§ 892 and 934 (2012). Contrary to appellant’s pleas, the
military judge convicted appellant of one specification of indecent exposure and one
specification of disorderly conduct in violation of Articles 120c and 134, UCMJ, 10
U.S.C. §§ 920c and 934 (2012). The military judge sentenced appellant to a bad-
conduct discharge and reduction to the grade of E-3. The convening authority
approved the sentence as adjudged.
3
 We are not reviewing a case of sexual assault. In an audio recording, which is
recorded later in the evening, PFC W is asked by another soldier whether she
consented. She responded, “Yes, one hundred and ten percent, you guys have
nothing to worry about.” She jokes that she is more likely to be the subject of a
sexual assault complaint than to file one. Naked, she is offered a towel to cover up,
but she declines the offer of a towel stating she is “already dry.” She further states
she is totally sober, which is consistent with both how she sounds in the audio
recording and her gait and appearance as she later dresses herself in the video.



                                           2
STEELE—ARMY 20170303

       Appellant pleaded guilty to fraternization and violating an order for providing
alcohol to persons underage. The government then sought to prove up numerous
other offenses. However, the defense was ready and presented a vigorous and well-
prepared defense. As a result, only two additional offenses, indecent exposure and
disorderly conduct, were proven beyond a reasonable doubt. 4

                         The red light means it is recording.

       After the military judge rendered findings, the case proceeded to sentencing.
During the defense case-in-chief, the court reporter, Staff Sergeant (SSG) DW,
noticed that he had not been recording audio since the last recess. Accordingly,
there was no audio recording of the entire direct testimony of appellant’s mother 5
and part of the direct testimony of Lieutenant Colonel (LTC) Jones. Lieutenant
Colonel Jones had served with appellant in a Special Forces unit in Europe.

       It was during LTC Jones’ testimony that SSG DW noticed that the red light on
his recording system was not illuminated. The red light indicates that the audio is
being recorded. He then began recording the court-martial. Staff Sergeant DW did
not inform the military judge of the recording gap, and would later state that this
was consistent with the training he had received from senior court reporters. 6

       The military judge became aware of the recording gap before authenticating
the record and directed a post-trial Article 39(a), UCMJ, session. The government
arranged for both witnesses to be present so they could testify and the missing


4
  In a separate assignment of error, appellant alleges that his conviction for indecent
exposure is insufficient. We certainly agree with appellant that not all instances of
nudity, even public nudity, are indecent. Being naked at a nude beach is
qualitatively different than flashing a school bus or strangers on the street.
Appellant’s acts fall between these two extremes. In other words, context matters.
Having considered the context in this case, and given the mandate in Article 66,
UCMJ, that we “recognize” the trial court saw and heard the evidence, we find the
record to be correct in fact.
5
    There was no cross-examination.
6
  The Clerk of Court is directed to forward a copy of this opinion to the Senior
Court Reporter Instructor at The Judge Advocate General’s Legal Center and School
for consideration of any lessons learned that may be adopted into the future training
of Army court reporters. The costs, both to the Army and to Master Sergeant Steele,
are enormous for an error which likely could have been fixed if SSG DW had,
contrary to his alleged training, immediately brought it to the military judge’s
attention.



                                           3
STEELE—ARMY 20170303

testimony could be recaptured. The defense, sensing that there was more to be
gained on appeal than by fixing the error at trial, strongly objected to the witnesses
being recalled and instead asked the military judge to authenticate the record as is.

       The military judge denied the government request to recall the witnesses,
“because the court does not believe that [their testimony] would be an accurate or
adequate reconstruction of the record of trial as it occurred.” 7 Instead, and without
the aid of the two witnesses re-testifying, the military judge summarized the
testimony from his notes and the court-reporter provided a memorandum for record.

                              LAW AND DISCUSSION

       We address this appeal in two steps. First, we consider whether the transcript
is verbatim. We determine it is not. Second, we address the range of remedies in
this case. We conclude a rehearing on sentence is the required remedy.

                            A. Is there a verbatim record?

      In United States v. Davenport, our superior court stated that a record is not
verbatim if “the omitted material was substantial, either qualitatively or
quantitatively.” 73 M.J. 373, 377 (C.A.A.F. 2014) (internal quotations and citations
omitted). Or, put less technically, a record is not verbatim if either (a) there is a lot
of missing material; or (b) the missing material is important.

      We easily determine that the transcript has substantial quantitative omissions.
An entire defense sentencing witness is missing.




7
   We might suggest that the wiser course of action would have been to first hear the
witnesses’ testimony (especially as they were present) before deciding that their
testimony would be inadequate. In United States v. Davenport, for example, a
DuBay hearing was ordered in an attempt to reconstruct the testimony. 73 M.J. 373,
377-76 (C.A.A.F. 2014). While the DuBay was inadequate in Davenport, recalling
the witnesses in this case was more likely to be successful. First, the Article 39(a)
session was only five months after trial. Second, both witnesses were defense
sentencing witnesses rather than government merits witnesses. Third, the missing
testimony did not include complex interwoven direct and cross-examination as only
the direct testimony was missing. A military judge could allow the defense (who
bore no responsibility for the error) wide latitude to reconstruct a favorable record
for appeal. However, we conclude that the military judge’s quoted language above
is a finding of fact, which we will give deference. Accordingly, we rule out a fact-
finding hearing to try to reconstruct the missing testimony.



                                            4
STEELE—ARMY 20170303

       It is clear from the Court of Appeals for the Armed Forces’ (CAAF) opinion
in Davenport, that for the transcript to be verbatim, it must be both qualitatively and
quantitatively substantially complete. Id. at 337. An omission on either prong is
fatal. Having found the transcript to fail on the quantitative prong, we conclude this
case lacks a verbatim record.

           B. Do we test for prejudice when a transcript is not verbatim?

       There are certainly instances where a missing portion of the transcript is
irrelevant to any issue on appeal. Consider, for example, if the record omits the
testimony of a witness at a suppression hearing. Certainly, if the defense
suppression motion is denied, this court would likely need the testimony to weigh
the correctness of the military judge’s ruling. But, what if the suppression motion
was granted? Or, what if the accused knowingly and voluntarily waived the
suppression issue while later pleading guilty? Or, what if the transcript omits the
voir dire of a panel member whom the defense successfully challenged? A record
under such circumstances would likely be viewed as having substantial quantitative
omissions; after all, a whole suppression hearing could be missing.

       In their brief to this court, the government argues that they have successfully
shown that the omissions in the record have not prejudiced appellant. 8 The CAAF’s
case in Davenport, however, specifically proscribes an alternative remedy.

             [W]hile 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 [Rule for Courts-
             Martial] 1103(f) control.

      Id. at 377. Accordingly, we find that under Davenport, we do not test for
prejudice when we have a non-verbatim transcript. 9


8
  Given the nature of the missing content, that it was a small part of the defense
sentencing case, that we have the military judge’s summary of the missing
testimony, that the accused’s sentence is otherwise lenient given the offenses, and
the absence of any claim that weighty material is missing, we would find the
government’s argument to have some merit.
9
 In Davenport, the CAAF returned the case to the convening authority without
setting aside the findings or the sentence. Thus, the CAAF in Davenport did not
violate Article 59(a), UCMJ. See UCMJ art. 59(a) (“A finding or sentence of court-

                                                                       (continued . . .)


                                           5
STEELE—ARMY 20170303

         C. Understanding Davenport in light of the changes to Article 60, UCMJ

       Under Rule for Courts-Martial [R.C.M.] 1103(f), a convening authority faced
with a non-verbatim transcript may either (1) approve a sentence that does not
include a punitive discharge or more than six months of confinement; or (2) order a
rehearing. In Davenport, the CAAF returned the case to the convening authority for
action in compliance with R.C.M. 1103(f). 73 M.J. at 379.

       The foundation of the CAAF’s reasoning in Davenport is, however, unsettled
given subsequent amendments to Article 60, UCMJ. The National Defense Act for
Fiscal Year 2014 substantially curtailed a convening authority’s traditional powers
under Article 60, UCMJ, in cases involving offenses that occurred after 24 June
2014. 10 See Pub. L. No. 113-291, 128 Stat. 3292, 3365 (2014). In a case where a
punitive discharge was adjudged, such as this one, the convening authority cannot
set aside the findings or the punitive discharge. Id.; see also R.C.M. 1107(c).

      Indeed, the instances where a verbatim transcript is required (a punitive
discharge or more than six months of confinement are adjudged) are exactly the
circumstances where the convening authority is no longer allowed to set aside the
findings and sentence.

       Thus, were we to strictly follow Davenport, we would place the convening
authority in an impossible position. If there is no verbatim transcript, the convening
authority cannot approve a sentence with a punitive discharge. The convening
authority also cannot disapprove the punitive discharge because Congress
specifically removed this power. 11 The convening authority also cannot order a


(. . . continued)
martial may not be held incorrect on the ground of an error of law unless the error
materially prejudices the substantial rights of the accused.”). As we will see below,
we are in a bit of a bind.
10
   Over the first sixty plus years of the UCMJ, the girders on which the system was
built relied, in part, on the traditional Article 60 convening authority power. The
2014 amendment to Article 60 did more than take away a convening authority’s
ability to grant significant clemency. It also removed the beams that policy makers
had relied on when correcting pure legal errors. We faced a similar problem in In re
Vance where the Army’s military justice regulation had relied on the traditional
Article 60 power to give effect to Secretarial administrative separations. 78 M.J.
631 (Army Ct. Crim. App. 2018).
11
  There are two exceptions to the prohibition on disapproving a punitive discharge,
neither are present here. See R.C.M. 1107(d)(C).



                                          6
STEELE—ARMY 20170303

rehearing because setting aside the sentence is a precondition to ordering a
rehearing. See UCMJ art. 60(f)(3).

       We decline to sanction the “absurd” result of remanding the case to a state of
eternal appellate limbo, where the convening authority can neither approve the
sentence under R.C.M. 1103(f), nor disapprove the sentence under Article 60,
UCMJ. Because we see R.C.M. 1103(f) and Article 60, UCMJ, to be in conflict, the
presidentially promulgated rule must yield to the more recently enacted statute. 12

      At oral argument, defense appellate counsel aptly stated this was quite the
“pickle.” And, we agree.

          D. Between a rock (Davenport) and a hard place (Article 59(a))

       In essence we have a chicken and egg problem. We cannot affirm appellant’s
sentence based on a convening authority action that violates R.C.M. 1103. But, the
convening authority cannot comply with R.C.M. 1103 because of amendments to
Article 60. We could break this do-loop if we determined that the missing transcript
pages were harmless, however this is exactly what we see Davenport as prohibiting.

       We conclude the only off-ramp from this highway to nowhere is to deviate
slightly from the CAAF’s course in Davenport and set aside the sentence ourselves
before returning the case to the convening authority. By first setting aside the
sentence, we can return the case to the convening authority who may then fulfill his
responsibilities under RCM 1103(f) without violating Article 60.

       We acknowledge that this decision is questionable. Based on an error of law
(no verbatim transcript) we are setting aside appellant’s sentence without assessing
whether the error of law prejudiced appellant. See UCMJ art. 59(a). Perhaps of
some relevance, this is also a case where it was appellant who specifically objected
to recalling the witnesses to try to reconstruct the missing transcript.

       However, we leave it to the CAAF to determine whether we have misapplied
Davenport or whether the case should be revisited in light of the subsequent changes
to Article 60. 13 For now, we err on the side of giving effect to the CAAF’s decision
in Davenport.


12
   See, e.g., United States v. Schell, 72 M.J. 339, 343 (C.A.A.F. 2013) (“[T]he plain
language of a statute will control unless it leads to an absurd result.”).
13
  A Presidential rule cannot compel a convening authority to take an action
prohibited by an Article of the UCMJ. See UCMJ art. 36. By its text, Article 59(a)

                                                                      (continued . . .)


                                          7
STEELE—ARMY 20170303

                                   CONCLUSION

      Upon consideration of the entire record, the findings of guilty are
AFFIRMED. The sentence is SET ASIDE. The record of trial is returned to The
Judge Advocate General for return to the Convening Authority for action consistent
with R.C.M. 1103(f). A rehearing on sentence is authorized.

Judge BURTON and Judge EWING concur.

                                        FOR THE
                                        FOR THE COURT:
                                                COURT:




                                        MALCOLM
                                        MALCOLM H.  H. SQUIRES,
                                                       SQUIRES, JR.
                                                                JR.
                                        Clerk of Court
                                        Clerk of Court




(. . . continued)
does not state that its limitations only apply to the appellate courts. If Article 59(a)
applies with equal force to a convening authority granting relief based on an error of
law, then following Article 59(a) would prohibit both the convening authority and
this court could from setting aside a finding or sentence for a violation of R.C.M.
1103(f) without first assessing whether the accused was prejudiced by the action. If
this is correct, while the convening authority traditionally had broad clemency
powers, when correcting an error of law, R.C.M. 1103(f) cannot compel a result that
Article 59(a) prohibits. But, the CAAF returned the case in Davenport to the
convening authority, without assessing prejudice, and with the direction that the
convening authority follow R.C.M. 1103(f). And, it is hard to read the CAAF’s
remand in Davenport as not requiring the convening authority to follow R.C.M.
1103(f) without regard to a prejudice assessment. Accordingly, we see our decision
today as consistent with what Davenport requires.



                                           8
