United States v. Gonzalez ( 2021 )

Before
GASTON, STEWART, and HOUTZ
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Maikel GONZALEZ
Staff Sergeant (E-6), U.S. Marine Corps
Appellant
No. 201900295
Decided: 10 May 2021
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judges:
Terrance J. Reese (arraignment)
Glen R. Hines (motions, trial)
Kevin S. Woodard (post-trial)
Sentence adjudged 3 May 2019 by a general court-martial convened at
Marine Corps Base Camp Lejeune, North Carolina, consisting of a
military judge sitting alone. Sentence in the Entry of Judgment: re-
duction to E-1, confinement for 24 months, 1 and a bad-conduct dis-
charge.
For Appellant:
Commander R. Don Evans, JAGC, USN
1 The convening authority suspended confinement in excess of 14 months pursu-
ant to a pretrial agreement.
1
For Appellee:
Major Clayton L. Wiggins, USMC
Major Kerry E. Friedewald, USMC
_________________________
This opinion does not serve as binding precedent, but
may be cited as persuasive authority under
NMCCA Rule of Appellate Procedure 30.2.
_________________________
PER CURIAM:
Appellant was convicted, pursuant to his pleas, of conspiracy, larceny,
and obstructing justice, in violation of Articles 81, 121, and 134, Uniform
Code of Military Justice [UCMJ], 10 U.S.C. §§ 881, 921, 934, in connection
with his theft of various items of personal and military property.
Appellant asserts three assignments of error [AOEs] relating to the post-
trial processing of his case: (1) that certain findings were not recorded in the
Entry of Judgment, and that this Court should disapprove those findings; 2
(2) that this Court should refuse to accept for appellate review a record:
(a) that has not been verified by either of the military judges who presided
over the court-martial, (b) that lacks certification by one of the two detailed
court reporters, (c) from which the Government has removed a document
marked as a prosecution exhibit for identification and inserted in its place an
affidavit that the trial counsel created months after the court-martial ad-
journed and days after the record was certified as complete, and (d) from
which the Government removed an appellate exhibit after the military judge
directed, “I have here a document that will be attached as the next appellate
exhibit in order,” and which document was the subject of a post-trial Article
39(a), UCMJ session; 3 and (3) that this Court should set aside an Entry of
Judgment that: (a) was executed by a military judge who was not detailed to
the court-martial; (b) was executed before the court-martial transcript was
2 We find this AOE was mooted when this Court granted Appellee’s Motion to
Attach Post-Trial Action Addendum Pages, which included the missing Entry of
Judgment addendum pages.
3 We find AOE (2)(d) was mooted when this Court granted Appellee’s Motion to
Attach Appellate and Post-Trial Rights Advisement, which included the missing
Appellate Exhibit VI.
2
certified as accurate and complete; and (c) presents an incomplete report of
the proceedings of a companion case. 4 We find no prejudicial error and affirm.
I. BACKGROUND
Appellant, a staff non-commissioned officer [Staff NCO], along with two
other Staff NCOs, stole a number of motor vehicles, personal property, and
military property onboard Camp Lejeune, North Carolina. Judge Reese
presided over the arraignment session. Judge Hines subsequently replaced
Judge Reese as the military judge, accepted Appellant’s guilty pleas, sen-
tenced Appellant, and signed the Statement of Trial Results. A post-trial
Article 39(a), UCMJ session was later convened to discuss a pen-and-ink
change to the pretrial agreement and to replace the “outdated” appellate and
post-trial rights advisement that was referred to during the guilty plea with a
“corrected” one that was marked as Appellate Exhibit VI and included in the
record. 5
By the time the Staff Judge Advocate and convening authority completed
and forwarded the Post-Trial Action Form, Judge Hines, a Reservist, had left
active duty. Consequently, the Chief Trial Judge of the Navy-Marine Corps
Trial Judiciary determined Judge Hines was not reasonably available and
detailed Judge Woodard, the Circuit Military Judge for the Eastern Judicial
Circuit where Appellant’s court-martial took place, to execute the Entry of
Judgment. Judge Woodard verified the record of trial and executed the Entry
of Judgment, the record of trial was prepared and certified by the court
reporter chief, and one of the two detailed court reporters certified the verba-
tim transcript of the court-martial proceedings. Before the record of trial was
forwarded for appellate review, an affidavit from the trial counsel was at-
tached explaining that Prosecution Exhibit 8, which was not included in the
Record, was neither offered nor admitted into evidence.
II. DISCUSSION
Appellant asserts the Entry of Judgment was erroneously entered by a
military judge who was not detailed to the court-martial and executed before
the court-martial transcript was certified as accurate and complete. He
further asserts this Court should not accept the record of trial when it was
4 We find AOE (3)(c) was mooted when this Court granted the Government’s mo-
tion to attach the missing Entry of Judgment addendum pages to the record.
5 Rawle at 201; App. Ex. VI.
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verified by a military judge who did not preside over any record proceedings
of the court-martial; its transcript was certified by only one of the two de-
tailed court-reporters; the record of trial was certified by the court reporter
chief; and Prosecution Exhibit 8 for identification was omitted from the
record. Whether a record of trial is complete is a question of law that appel-
late courts review de novo. 6
None of Appellant’s claims has merit. First, Rule for Courts-Martial
[RCM] 1111(a)(1) specifically provides that “[i]f the Chief Trial Judge deter-
mines that the military judge is not reasonably available, the Chief Trial
Judge may detail another military judge to enter the judgment.” The Chief
Trial Judge properly detailed Judge Woodard to the case pursuant to this
rule after determining Judge Hines was not reasonably available. At that
point, Judge Woodard was authorized to enter the judgment of the court into
the record of trial 7 and to perform such other actions as necessary as the
military judge on the case, to include verifying the record for completeness in
accordance with regulations. 8
Second, contrary to Appellant’s assertions, a verbatim transcript is not
required before the military judge can execute the Entry of Judgment. In fact,
RCM 1114(a)(1) describes the Entry of Judgment as the triggering mech-
anism for a transcript, not vice versa. 9
Third, pursuant to RCM 1114 and JAGINST 5813.1D, which “applies to
all personnel involved in preparation and certification of [court-martial]
verbatim transcripts,” 10 the court reporter is required to prepare and review
a verbatim transcript of certain courts-martial, to provide it to the military
judge for verification, and then to certify the transcript. 11 Neither the rule
nor the instruction requires the transcript to be certified by more than one
6 United States v. Henry, 53 M.J. 108, 110 (C.A.A.F. 2000).
7 See UCMJ art. 60c.
8 See Dep’t of the Navy, Judge Advocate General / Cmdr Navy Legal Service Cmd
Instr. 5814.1D, Post-Trial Processing, encl. 2 at 9-10 (Sep. 6, 2019); see also N-M
Trial Jud. R. 34.12.
9 See also Dep’t of the Navy, Judge Advocate General Instr. 5813.1D, Standardi-
zation of General Courts-Martial and Special Courts-Martial Verbatim Transcripts
and Summarized Reports to Accompany the Record of Trial, para. 4.e (July 3, 2019)
[JAGINST 5813.1D] (requiring that a military judge verify the record of trial prior to
the verbatim transcript being certified as complete and accurate).
10 Id. at para. 3.
11 See id. at paras. 4.d-e.
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court reporter. 12 Thus, as we have previously held, certification by one court
reporter of the transcript, even if two were detailed to the court-martial, is
not erroneous. 13
In addition, per RCM 1112(c), certification of the record of trial need only
be accomplished by “[a] court reporter.” As we have previously held, such
certification by the “detailed” court reporter is not required and may be
accomplished by a court reporter chief. 14
Finally, among the items required to be attached to the record of trial un-
der RCM 1112(f)(2) are “exhibits which were marked for and referred to on
the record but not received into evidence.” 15 Here, the only reference to
Prosecution Exhibit 8 was the trial counsel’s statement that “[the] Govern-
ment does not and will not be offering Prosecution Exhibit 8.” 16 We do not
construe a statement placed on the record to explain essentially that there is
no Prosecution Exhibit 8 to require inclusion of any such exhibit in the record
under RCM 1112(f). 17 Since no Prosecution Exhibit 8 was ever offered, used,
or identified in any meaningful way on the record, it is not required to be
attached to the record of trial. Hence, Appellant’s record of trial contains all
the items required for appellate review of this case.
III. CONCLUSION
After careful consideration of the record and briefs of appellate counsel,
we have determined that the findings and sentence are correct in law and
fact and that no error materially prejudicial to Appellant’s substantial rights
occurred. UCMJ arts. 59, 66.
The findings and sentence are AFFIRMED.
12 See id.
13 Unites States v. Huntington, No. 201900218, 2020 CCA LEXIS 105, at *4 (N-M.
Ct. Crim. App. Apr. 8, 2020) (per curiam) (unpublished).
14 See Huntington, 2020 CCA LEXIS 105, at *2-4.
15 See also United States v. Leal, 44 M.J. 235, 236 (C.A.A.F. 1996).
16 Rawle at 125.
17 Cf. United States v. Booth, 33 M.J. 939, 940-41 (N-M.C.M.R. 1991) (finding er-
ror in omitting two prosecution exhibits that were referenced by “four of the five
prosecution witnesses in the Government’s case in chief and by the appellant in his
testimony”).
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FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
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