                         UNITED STATES, Appellee

                                         v.

   Gilbert T. ALLENDE, Mess Management Specialist Second Class
                       U.S. Navy, Appellant

                                  No. 06-0908
                        Crim. App. No. 200001872

       United States Court of Appeals for the Armed Forces

                         Argued January 16, 2008

                          Decided March 12, 2008

EFFRON, C.J., delivered the opinion of the Court, in which
BAKER, ERDMANN, STUCKY, and RYAN, JJ., joined.


                                     Counsel


For Appellant: Lieutenant Kathleen L. Kadlec, JAGC, USN
(argued); Lieutenant Richard H. McWilliams, JAGC, USN (on
brief).

For Appellee: Captain Geoffrey S. Shows, USMC (argued);
Lieutenant Commander Paul D. Bunge, JAGC, USN, Lieutenant
Timothy H. Delgado, JACG, USN, Major Kevin C. Harris, USMC, and
Major Brian K. Keller, USMC (on brief).


Military Judge:    Stephen Jamrozy


            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Allende, No. 06-0908/NA


    Chief Judge EFFRON delivered the opinion of the Court.

    A general court-martial composed of officer and enlisted

members, convicted Appellant, contrary to his pleas, of

violating a lawful order, larceny (four specifications), and

obtaining services by false pretenses, in violation of Articles

92, 121, and 134, Uniform Code of Military Justice (UCMJ), 10

U.S.C. §§ 892, 921, 934 (2000).    The sentence adjudged by the

court-martial and approved by the convening authority included a

bad-conduct discharge, confinement for one year, forfeiture of

all pay and allowances, and reduction to the lowest enlisted

grade.    The United States Navy-Marine Corps Court of Criminal

Appeals affirmed the findings.    In light of the post-trial

delay, the court reduced the sentence as a matter of sentence

appropriateness, approving only that portion providing for a

bad-conduct discharge, confinement for nine months, and

reduction to the lowest enlisted grade.    United States v.

Allende, No. 200001872, 2006 CCA LEXIS 167, 2006 WL 4572995 (N-

M. Ct. Crim. App. July 11, 2006) (unpublished).

     On Appellant’s petition, we granted review of the following

issues:

            I.    WHETHER THE LOWER COURT PROPERLY
                  EVALUATED PREJUDICE AFTER IT FOUND THAT
                  THE TRIAL COUNSEL ERRONEOUSLY
                  AUTHENTICATED THE RECORD.

            II.   WHETHER THE LOWER COURT ERRED IN
                  FINDING NO DUE PROCESS VIOLATION WHERE


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                 2,484 DAYS ELAPSED BETWEEN THE
                 ADJOURNMENT OF APPELLANT’S TRIAL AND
                 COMPLETION OF ARTICLE 66, UCMJ, REVIEW,
                 INCLUDING 734 DAYS IN PANEL.

For the reasons set forth below, we affirm.



                  I.   AUTHENTICATION OF THE RECORD

                            A.   BACKGROUND

     The present appeal involves procedures for authentication

of the record set forth in the UCMJ and the Manual for Courts-

Martial.   Article 54(a) requires each general court-martial to

keep a record of the proceedings.      Article 54(a), UCMJ, 10

U.S.C. § 854(a) (2000).    Under the direction of the military

judge, the trial counsel makes arrangements for preparation of

the record.   Article 38(a), UCMJ, 10 U.S.C. § 838(a) (2000);

Rule for Courts-Martial (R.C.M.) 1103(b)(1).      The trial counsel

examines the record and makes any necessary corrections.       R.C.M.

1103(i)(1)(A).   During this process, the trial counsel permits

the defense counsel to examine the record “[e]xcept when

unreasonable delay will result.”       R.C.M. 1103(i)(1)(B).

     A “complete record of the proceedings,” including a

verbatim written transcript, must be prepared for each general

court-martial in which the sentence includes a punishment of the

type at issue in the present appeal.      Article 54(c)(1)(A), UCMJ;

R.C.M. 1103(b)(2)(B).    Substantial omissions from the record



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create a presumption of prejudice that may be rebutted by the

government.    United States v. Stouffer, 53 M.J. 26, 27 (C.A.A.F.

2000); Manual for Courts-Martial, United States, Analysis of the

Rules for Courts-Martial app. 21 at A21-81 (2005 ed.).

     The military judge authenticates the record of each general

court-martial.   Article 54(a), UCMJ; R.C.M. 1104(a)(1).   Trial

counsel may authenticate the record if the military judge cannot

do so “by reason of his death, disability, or absence.”    Article

54(a), UCMJ.   In circumstances not pertinent to the present

case, there are other options for substitute authentication.

Article 54(a), UCMJ; R.C.M. 1104(a)(2)(B).    The person who

authenticates the record of trial in the absence of the military

judge “should attach to the record of trial an explanation for

the substitute authentication.”    R.C.M. 1104(a)(2)(B)

Discussion.    Any deficiency with respect to explaining the need

for substitute authentication is tested for prejudice under a

harmless error standard of review.     United States v. Ayers, 54

M.J. 85, 92 (C.A.A.F. 2000).

                       B.   THE RECORD OF TRIAL

1.   Appellant’s court-martial

     During Appellant’s trial, the recording equipment

malfunctioned at a number of points.    The record of trial

omitted portions of three sessions under Article 39(a), UCMJ, 10

U.S.C. § 839(a) (2000).     The first concerned the sufficiency of


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the evidence on the charge of obtaining services by false

pretenses, and the trial schedule; the second involved the

question of whether a machete is a dangerous weapon, and the

third involved a discussion of instructions on findings.    The

record also did not contain Appellant’s written motion for an

expert consultant and the Government’s response to Appellant’s

motion.

     Trial counsel certified that she had “made all necessary

corrections to this record of trial” and authenticated the

record “because of [the] absence of the military judge.”

Defense counsel received a copy of the record prior to

authentication, and did not submit any corrections.   Defense

counsel did not submit a request for correction, Article 38(c),

UCMJ, nor did Appellant present any legal issues concerning the

record’s accuracy in his clemency petition.

2.   Review by the Court of Criminal Appeals

     Appellant raised two assignments of error regarding the

record of trial at the Navy-Marine Corps Court of Criminal

Appeals:   whether the record of trial contained substantial

omissions creating a rebuttable presumption of prejudice, and

whether trial counsel erroneously authenticated the record of

trial without properly explaining the military judge’s absence.




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     a.     Omissions from the record

     The Court of Criminal Appeals concluded that, despite the

omissions, there was enough information on the record to

conclude that three of the four omissions were insubstantial

because the record contained sufficient information on each of

the matters at issue.    The court found the omitted discussion of

the proposed instructions involved a substantial omission,

thereby raising the presumption of prejudice.   The court noted

that Appellant did not claim that the record omitted any

objections to instructions, that the record omitted a request

for instructions, or that the military judge erred in the

instructions actually given.    The court then reviewed the

instructions contained in the record and concluded that there

was no instructional error.    Under these circumstances, the

court concluded that the presumption of prejudice was rebutted

by the record of trial and that the record was substantially

verbatim.

     b.     Substitute authentication

     The Court of Criminal Appeals noted that the only reason

set forth in the record for substitute authentication was trial

counsel’s statement that she had authenticated the record

“because of [the] absence of the military judge.”   The court

concluded that because this statement did not provide sufficient

information to determine whether substitute authentication was


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appropriate, the authentication was erroneous.   The court

further determined that the error was harmless because:    (1) the

record was substantially verbatim; (2) Appellant’s counsel

received an opportunity to comment on any corrections prior to

authentication; (3) Appellant did not raise any legal issues

concerning the record’s accuracy prior to the convening

authority’s action; and (4) Appellant did not allege on appeal

that the record was inaccurate.

                          C.   DISCUSSION

     In his petition to this Court, Appellant requested review

of numerous issues, including the propriety of the lower court’s

ruling that the record was substantially verbatim and that

Appellant was not prejudiced by the erroneous authentication of

the record.   We found good cause to grant review only on the

issue of authentication, as well as a separate issue involving

appellate delay.   United States v. Allende, 65 M.J. 345

(C.A.A.F. 2007).   The subsequent filings of the parties do not

require us to revisit our decision to deny review of the

question as to whether the record was substantially verbatim;

nor do the filings require us to question the decision by the

court below that the substitute authentication was in error.    In

that posture, the question before us on Issue I is whether the

lower court, having decided that the record is substantially

verbatim, erred in its analysis of prejudice with respect to the


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substitute authentication.   The lower court’s ruling on

prejudice is a question of law that we review de novo.     See

United States v. Gunkle, 55 M.J. 26, 30 (C.A.A.F. 2001).

     The issue in the present case involves authentication by

trial counsel, one of the officials designated by Article 54(a),

UCMJ, as eligible to authenticate the record in a substitute

capacity.   The error found by the lower court involved the

adequacy of the explanation for use of a substitute authority.

We do not have before us a question of authentication by a

person outside the ambit of persons authorized to act as

substitutes under Article 54(a), UCMJ, and R.C.M. 1104.    As

such, the burden is on Appellant to demonstrate prejudice.

Appellant has not demonstrated that the error regarding the

explanation for using a substitute produced an inaccurate

record, or otherwise prejudiced his right to submit a brief

under Article 38, UCMJ, to obtain post-trial clemency under

Article 60, UCMJ, to present an issue to the Court of Criminal

Appeals under Article 66, UCMJ, or to raise an issue of law

before our Court.   In short, he has not demonstrated material

prejudice to his substantial rights under Article 59(a), UCMJ,

10 U.S.C. § 859(a) (2000).




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                         II.   APPELLATE DELAY

     In the second granted issue, Appellant asserts that he was

denied his due process right to speedy review and appeal.      See

United States v. Moreno, 63 M.J. 129, 135-41 (C.A.A.F. 2006)

(applying the factors identified in Barker v. Wingo, 407 U.S.

514 (1972), to assess:    (1) the length of the delay; (2) the

reasons for the delay; (3) the appellant’s assertion of the

right to timely review and appeal; and (4) prejudice).    The

present case involves a seven-year delay between adjournment of

Appellant’s court-martial and resolution of his Article 66,

UCMJ, appellate review.    In light of the lengthy delay, and the

focus of the parties on prejudice, we shall assume error and

proceed directly to the question of whether any error was

harmless beyond a reasonable doubt.     See United States v.

Allison, 63 M.J. 365, 370-71 (C.A.A.F. 2006).

     Appellant has not suffered ongoing prejudice in the form of

oppressive incarceration, undue anxiety, or the impairment of

the ability to prevail in a retrial.     Moreover, because we do

not find the substantive grounds of Appellant’s appeal as to the

first granted issue meritorious, Appellant has not suffered

detriment to his legal position in the appeal as a result of the

delay.   See Moreno, 63 M.J. at 139.

     Appellant asserts prejudice on the grounds that his ability

to obtain employment has been impaired because he has not been


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able to show employers a Department of Defense Form 214 (DD-

214), the certificate of release from active duty.   The

appellate delay has delayed completion of appellate review,

thereby precluding issuance of a DD-214.   According to

Appellant, a number of potential civilian employers were

unwilling to consider him because he could not provide them with

a DD-214.

     Appellant’s affidavit asserts that four employers declined

to consider him for employment in the period of August-October

2000, approximately a year after his trial was completed, and

that two employers declined to consider him for employment for

that reason in 2007.   Appellant has not provided documentation

from potential employers regarding their employment practices,

nor has he otherwise demonstrated a valid reason for failing to

do so.   Compare United States v. Jones, 61 M.J. 80, 84-85

(C.A.A.F. 2005) (relying upon affidavits from a prospective

employer to confirm that the lack of a DD-214 caused the

employer to deny his application for employment.)    In that

context, we conclude that the assumed error was harmless beyond

a reasonable doubt and note that Appellant has failed to present

any substantiated evidence to the contrary.




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                         III.   DECISION

     For the forgoing reasons, the decision of the United States

Navy-Marine Corps Court of Criminal Appeals is affirmed.




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