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Staff Sergeant Daniel Gaskins United States Army,
Colonel John B. Hoffman, Colonel) David L. Conn, Colonel Mark L. )
Johnson, Colonel Theresa A. )
Gallagher, Colonel Eugene E. )
Baime, and Lieutenant Colonel ) Paulette V. Burton ) ) ) )
United States Army, Respondents
MA TTHEW T. GRADY
Captain, Judge Advocate Appellate Defense Counsel Defense Appellate Division
U.S. Army Legal Services Agency 901 N. Stuart Street, Suite 340 Arlington, Virginia 22203
(703) 588-5283 U.S.C.A.A.F. Bar No. 35092
PETER KAGELEIRY, JR.
Lieutenant Colonel, Judge Advocate Branch Chief, Defense Appellate
U.S.C.A.A.F. Bar No. 35031
PETITION FOR EXTRAORDINARY RELIEF IN THE NATURE OF WRIT OF MANDAMUS
Crim. App. Dkt. No. 20080132
USCA Misc. Dkt. No.
WILLIAM E. CASSARA P.O. Box
EVANS, GA 30809 (706) 860-5769
email@example.com U.S.C.A~A.F. Bar No. 26503
JONATHAN F. POTTER Lieutenant Colonel, Judge Advocate
Senior Appellate Counsel, Defense Appellate Division
U.S.C.A.A.F. Bar No. 26450
Colonel, Judge Advocate Chief, Defense Appel+ate
U.S.C.A.A.F. Bar No. 28364
INDEX OF PETITION FOR EXTRAORDINARY RELIEF IN THE NATURE OF A WRIT OF MANDAMUS
THIS COURT SHOULD ORDER A NONVERBATIM RECORD SENTENCE FOR APPELLANT BECAUSE HE REMAINS IN CONFINEMENT PAST THE JURISDICTIONAL LIMIT FOR A CASE WITH
AN INCOMPLETE RECORD . . . . . . . . . . . . . . . . 6
Preamble . 2
History of the Case 3
Statement of Facts 6
Relief Sought . . . 5
Conclusion . 24
Certificate of Filing . . . . . . . . . . . . . . . . . . . . 25
TABLE OF CASES, STATUTES,AND OTHER AUTHORITIES
. . 22
Di Santo (1927)
v. Commonwealth of Pennsylvania, 273 U.S. 34
Greenlaw v. United States, 554 U.S. 237 (2008)
. . . . 22
Court of Appeals for the Armed Forces
Dettinger v. United States, 7 M.J. 216 (C.M.A. 1979)
Gaskins v. Hoffman, M.J.
(C.A.A.F. Dec. 9, 2010)
, Misc. No. 11-8004/AR
United States v. Abrams, 50 M.J. 361 (C.A.A.F. 1999)
United States v. Blazier, 68 M.J. 439
(C.A.A.F. 2010) ....
United States v. Boxdale, 22 C.M.R. 351 (C.M.A. 1973)
. . . . 11,14
United States v. Demerse, 37 M.J. 492
(C.M.A. 1993) ....
United States v. DuBay, 37 C.M.R. 411
(C.M.A. 1967) ....
. .. 4
United States v. Eichenlaub, 11 M.J. 239 (C.M.A. 1981)
United States v. Henry, 53 M.J. 108 (C.A.A.F. 2000)
United States v. Labella, 15 M.J. 228 (C.M.A. 1983)
. . . . 10,11
United States v. Lashley, 14 M.J. 7
(C.M.A. 1982) ....
United States v. MuCullah, 11 M.J. 234 (C.M.A. 1981)
. . 11,14
United States v. Stoffer, 53 M.J. 26
(C.A.A.F. 2000) ....
Courts of Criminal Appeals
Dew v. United States, 48 M.J. 639,
(Army Ct. Crim. App. 1998)
. . . . . 2d
United States v. Gaskins, M.J.
(Army Ct. Crim. App. Feb. 10, 2011)
. . . . . . 2
United States v. Embry, 60 M.J. 976
(Army Ct. Crim. App. 2005) ....
. . . . . . 14
United States v. Gaskins, 69 M.J. 569, (Army Ct. Crim. App. 2010)
United States v. Seal, 38 M.J. 659 (Army Ct. Crim. App. 1993)
United States v. Snethen, 62 M.J. 579,
(A.F. Ct. Crim. App. 2005) ....
United States v. Young, 50 M.J. 717
(Army Ct. Crim. App. 1999) ....
. . . . 17
Bauman' v. United States District Court, 557 F.2d 650,
(9th Cir. 1977) . . . . . 20,22
In re American Medical Systems, Inc., 75 F.3d 1069
(6th Cir. 1996) ....
Uniform Code of Military Justice
Article 19, 10 U.S.C. § 819
Article 54, 10 U.S.C. § 854
Art i c 1 e 54 (c) (1), lOU. S . C. § 854 (c) (1)
Article 54 (c) (1) (A), 10 U.S.C. s 854 (c) (1) (A)
Article 66, 10 U.S.C. § 866 .
Article 120, 10 U.S.C. § 920
Article 134, 10 U.S.C. § 934
Manual for Courts-Martial, United states, 2005 Edition
R.C.M. 1001 (c)
R.C.M. 1103 6,10,16,18
R.C.M. 1103(b) (2) (B)
R.C.M. 1103 (b) (2) (D) (v)
R.C.M. 1103 (f) (1)
R.C.M. 1106 18
Regulations and Publications
28 U.S.C. s 1651(a)
. . . . 19
Dep't of the Army Pamphlet 27-9, Military Judges' Benchbook, Ch. 2, §IV (Jan. 1, 2010) . . . . . . .
IN THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
In Re )
Staff Sergeant Daniel Gaskins ) PETITION FOR EXTRAORDINARY
United States Army, ) RELIEF IN THE NATURE OF
Petitioner ) WRIT OF MANDAMUS
) Colonel John B. Hoffman, Colonel )
David L. Conn, Colonel Mark L. )
Johnson, Colonel Theresa A. )
Gallagher, Colonel Eugene E. Baime,) Crim. App. Dkt. No.20080132
and Lieutenant Colonel Paulette )
V. Burton )
) USCA Misc. Dkt. No.
United States Army, )
TO THE HONORABLE JUDGES OF THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
MJ: Staff Sergeant Gaskins, we now enter the sentencing phase of the trial where you have the right to present matters in extenuation and mitigation, that is, matters about the offense(s) or yourself, which you want me to consider in deciding your sentence .
MJ: Defense counsel, do you have any evidence to present at this time?
Despite the fact that the government lost the only copy of
Dep't of the Army Pamphlet 27-9, Military Judges' Benchbook, ch.
2, §IV (Jan. I, 2010).
SSG Gaskins' "Good Soldier Book," which was a three-inch thick,
three-ring binder containing SSG Gaskins' awards, certificates,
and commendation and character letters, the Army Court of Criminal Appeals ["Army Court"] set aside SSG Gaskins' sentence
and authorized a sentence rehearing.
United States v. Gaskins,
__ M.J. __ ' slip op. at 2 (Army Ct. Crim. App. Feb. 10,
2011) (Appendix A). How should SSG Gaskins' defense counsel answer the military judge's question at his sentence rehearing since the government lost SSG Gaskins' best evidence in mitigation and extenuation (i.e., his "Good Soldier Book")?
"Given the particular landscape of this case,
facts and law leave .
but one remedy - affirm a nonverbatim
record sentence." United States v. Gaskins, 69 M.J. 569, 588
(Army Ct. Crim. App. 2010) (Ham, J., dissenting)
government bears responsibility for the record, and the government is liable for the consequences when it does not shoulder its responsibility.1I Id. The government's negligence ultimately will "deny society a full measure of justice because we are left with little choice but to perform radical surgery on the sentence in this case." Id. at 588-89 (citation and internal quotation marks omitted) .
COME NOW the undersigned appellate defense counsel, on behalf of petitioner Staff Sergeant Daniel Gaskins ["appellant"] and pursuant to Rule 27 of this Court's Rules of Practice and Procedure, request that this Honorable Court grant extraordinary
relief by mandating that the Army Court approve only a
nonverbatim record sentence. Alternatively, appellant asks this
Court to approve a nonverbatim record sentence in the interests
of judicial economy. Extraordinary relief is necessary since
appellant remains confined. Additionally, appellant requests
that this Court stay the sentence rehearing ordered by the Army
History of the Case
A panel of officers and enlisted members sitting as a
general court-martial convicted appellant, contrary to his
indecent assault, in violation of Articles 120 and 134 of the
pleas, of carnal knowledge, indecent acts with a child, and
Uniform Code of Military Justice, ["UCMJ"] i 10 U.S.C. §§ 920 and
The panel sentenced appellant to a dishonorable
discharge, confinement for twelve years, reduction to the lowest
convening authority approved the adjudged sentence.
enlisted grade, and forfeiture of all pay and allowances. The
Appellant filed his brief with the Army Court on April 30,
2009, and the government responded on December 28, 2009.
Gaskins, 69 M.J. at 574 (Ham, J., dissenting). On April 22,
2010, a panel of the Army Court, comprised of Chief Judge Tozzi,
Judge Ham, and Judge Sims, heard oral argument in appellant's
1 A Motion for Stay of Proceedings has been filed contemporaneously with this writ request.
case. On August 27, 2010, the Army Court sitting En Bane ordered that appellant's case be returned to the convening authority for a hearing pursuant to United States v. DuBay, 37
C.M.R. 411 (C.M.A. 1967).
Gaskins, 69 M.J. at 573. The
majority determined that they lacked the factual predicate to determine whether the omission of Defense Exhibit A was a
substantial omission from the record.
Id. at 573. The Army
Court's decision was made by a five to four margin, with Chief Judge Tozzi, joined by Judge Sims, and Judge Ham, joined by Judge Gifford, writing separate dissenting opinions. All judges of the panel who heard the oral argument joined in the dissent.
On September 16, 2010, appellant filed a petition for extraordinary relief in the nature of a writ of prohibition with this Court. On December 9, 2010, this Court concluded that a DuBay hearing to reconstruct Defense Exhibit A would be "inappropriate under the facts of this case." Gaskins v.
, Misc. No. 11-8004/AR (C.A.A.F. Dec. 9,
2010) (summary disposition). This Court remanded appellant's case back to the Army Court "for further consideration of other options in light of this action." Id.
On February 10, 2011, more than three years after appellant's trial, the Army Court sitting En Bane set aside appellant's sentence and authorized a sentence rehearing by the
same or a different convening authority.
slip op. at 2 (Appendix A). The Army Court's decision was made
by a six to three margin, with Judge Sims, joined by Chief Judge
Tozzi, and Judge Gifford writing separate opinions concurring in
part and dissenting in part. The court decided appellant's case
in a summary disposition and did not include any factual or
legal analysis to support the conclusion it rendered.
Reasons Relief Not Sought Below
Petitioner has exhausted all avenues of possible relief
below the jurisdiction of this Court. Additionally, appellant
remains confined beyond the time permissible in a case where a
complete record of trial does not exist. Appellant is thus
subject to irreparable harm and extraordinary relief is
The petitioner requests that this Court issue a writ of
mandamus ordering the Army Court to only approve a sentence as
in accordance with Articles 19 and 54(c) (1) (A) of the UCMJ.
provided for in Rule for Court-Martial ["R.C.M."] 1103(f) (1) and
Alternatively, in the interest of judicial economy, appellant
six months, and reduction to E-1.
asks this Court to take direct action on appellant's sentence
and approve only so much of the sentence as provides for
confinement for six months, forfeiture of $884.00 per month for
THIS COURT SHOULD ORDER A NONVERBATIM RECORD SENTENCE FOR APPELLANT BECAUSE HE REMAINS IN CONFINEMENT PAST THE JURISDICTIONAL LIMIT FOR A CASE WITH AN INCOMPLETE RECORD.
Summary of Argument
Due to the government's negligence, Defense Exhibit A,
appellant's "Good Soldier Book," is lost and the record of trial
is substantially incomplete. Yet the Army Court authorized a
sentence rehearing even though appellant will not have his best
evidence in extenuation and mitigation under R.C.M. 1001(c) at
it. In addition, the burden for "reconstructing" Defense
Exhibit A (which the government admits has been lost forever)
will unfairly shift from the government onto appellant.
Meanwhile, appellant continues to serve confinement when the
a nonverbatim record sentence, in accordance with Article 19 and
only lawfully correct outcome to be drawn from the facts is that
R.C.M. 1103, should be approved.
Statement of Facts
During the pre-sentencing phase of appellant's court-
martial, the defense offered, and the military judge admitted,
Defense Exhibit A.
(R. at 956.) Defense Exhibit A was "a
compilation of awards, certificates, letters of commendation and
character letters from family and friends, as well as a number
(R. at R.C.M. 1105 Submission.) The book
included letters and awards from appellant's thirteen years of Army, and Marine service, as well as from two combat deployments. Gaskins, 69 M.J. at 586 (Ham, J., dissenting). Appellant "only
generated one copy of Defense Exhibit A." Id. at 578.
was no description on the record concerning the contents of Defense Exhibit A." Id. at 576. Appellant made an unsworn statement, but he did not describe the contents of Defense Exhibit A in his statement other than to identify ten photographs, such as the one with his disabled son, another while re-enlisting in Kuwait, and a third while deployed to Iraq with the 82d Airborne Division. Id.
Appellant's trial concluded on February 8, 2008.
During the preparation of the record of trial, the
government discovered that Defense Exhibit A was missing. Gaskins, 69 M.J. at 570. The acting Staff Judge Advocate ["SJA"] advised the convening authority in the addendum that
Defense Exhibit A "could not be located" and that "[i]t is unclear what happened to this exhibit and many efforts by both parties to track down this exhibit have not been met with
the contents of Defense Exhibit A.
(R. at Sub. Memo.)
(R. at Addendum.)
An undated "substitution memorandum" prepared by the Senior Court Reporter and appellant's official military personnel file ["OMPF"] were included in the record as an attempt to describe
the drafter of this "substitution memorandum" was not the court
reporter at appellant's court-martial.
Gaskins, 69 M.J. at 577
(Ham, J., dissenting). Moreover, appellant's trial defense
counsel, in his R.C.M. 1105 submission, made the following
[T]he government's memorandum for record and appellant's OMPF do not cover half of what was included in DE A. Staff Sergeant Gaskins earned several military awards and training certificates while on active duty in the u.S. Marine Corps. Neither his Army OMPF nor the government's memorandum for record includes any documents from his four (4) years on Marine active duty.2 Furthermore, mUltiple civilian education certificates, college transcripts, certificates of achievement and military awards from SSG Gaskin's 9 years in the active duty Army were included in DE A but not documented in his OMPF or the government's memorandum for record. Specifically missing are Army Achievement Medals, Army Commendation Medals, Army Good Conduct Medals, Iraq Campaign Medal, Humanitarian Service medals, Foreign Service awards and Foreign Jump wings, a Combat Action Badge, civilian training certificates for electronics training, college transcripts, numerous certificates of appreciation from civilian organizations like the Special Olympics, etc. Finally, DE A contained numerous letter~ of support from family, friends, and members of the military. Neither the government's memorandum for record nor appellant's OMPF allude to any of those letters, specifically the content and source of each letter.
2 Appellant's OMPF did include a DD Form 214 showing appellant's release from active duty service in the Marine Corps. It summarized his awards, military schooling, and service history, but it did not contain anything else.
Id. at 578.
Neither the government nor the defense admitted appellant's
OMPF into evidence at his court-martial.
Id. More importantly,
appellant's OMPF did not contain any of the "twenty-six awards and decorations listed on [his Enlisted Records Brief] ["ERB"]
. nor any other certificates concerDing appellant's military or civilian education as reflected on his ERB." Id. at 579 (emphasis in original). The acting SJA relied on the "substitution memorandum" and appellant's OMPF in advising the convening authority that no corrective action was needed nor any
(R. at Addendum.)
authority took no corrective action and granted no clemency. (R. at Action.)
In sum, the "post-trial documents reveal that the government conducted an exhaustive search for Defense Exhibit A in the months preceding the convening authority's action." Gaskins, 69 M.J. at 574 (Ham, J., dissenting). More importantly, the government has not provided any supplemental or additional documentation pertaining to Defense Exhibit A to the Army Court's attention after the convening authority took
Id. at 574-75. The resulting conclusion is that the
only copy of Defense Exhibit A to have existed has been permanently lost.
Reasons Why Writ Should Issue
1. Law Relative To Complete Records Of Trial
Whether a record of trial is complete is a question of law
which is reviewed de novo.
United States v. Henry, 53 M.J. 108,
110 (C.A.A.F. 2000). Article 54(c) (1), UCMJ, requires that:
A complete record of the proceedings and testimony shall be prepared -
(A) in each general court-martial case in which the sentence adjudged includes a discharge .
Likewise, Article 19, UCMJ, provides that "[a] bad-conduct
discharge, confinement for more than six months, or forfeiture
of pay for more than six months may not be adjudged unless a
complete record of the proceedings and testimony has been made
Further, R.C.M. 1103 outlines the required contents of a
record of trial; specifically, R.C.M. 1103 (b) (2) (D) (v ) states
Exhibits, or, with the permission of the military judge, copies, photographs, or descriptions of any exhibits which were re~eived in evidence and any appellate exhibits.
that a complete record shall include:
When a record is incomplete:
[T]he convening authority may:
(1) Approve only so much of the sentence that could be adjudged by a special courtmartial, 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.
R.C.M. 1103 (f) (1); See also Henry, 53 M.J. at 111.
The right to a complete record of trial is a "fundamental
statutory right" under Articles 19 and 54(c) (1) of the UCMJ.
United States v. McCullah, 11 M.J. 234, 237 (C.M.A. 1981). The
impact of an incomplete record of trial manifests in two ways.
First, an incomplete record impacts the convening authority's
See R.C.M. 1105 and 1106.
Second, when a
record is not complete, the service court is prevented from
conducting a proper appellate review.
See Article 66, UCMJ.
"The test as to whether an omission from a record of trial
is a fatal jurisdictional error turns on whether the omission is
United States v. Seal, 38 M.J. 659, 662 (Army Ct.
Crim. App. 1993) (citations omitted)
"A substantial omission
substantial omission from the record of trial raises a
renders a record incomplete." Id. (citation omitted). A
McCullah, 11 M.J. at 237; citing United States v. Boxdale, 22
presumption of prejudice that the government must rebut. See
C.M.R. 351 (C.M.A. 1973); see also, Henry, 53 M.J. at 110-11.
"Records of trial that are not substantially verbatim or are
incomplete cannot support a sentence that includes a punitive
discharge or confinement in excess of 6 months." Henry, 53 M.J.
at 111 (citing R.C.M. 1103 (b) (2) (B)). Whether an omission from
the record is "substantial" ~s analyzed on a "case-by-case
basis." United States v. Abrams, 50 M.J. 361, 363 (C.A.A.F.
2. The Absence Of Defense Exhibit A Constitutes A Substantial Omission From The Record
The facts demonstrate that an exhaustive search for Defense
Exhibit A was conducted at the trial level and that the
reconstruct it while the appeal was pending.
government had a continuing opportunity to attempt to
"[t]he record does not contain an index of the exhibit or
detailed description of the documents it included." Gaskins, 69
M.J. at 582 (Ham, J., dissenting).
Substantial omissions from the record can be "qualitative
as well as quantative."
United States v. Lashley, 14 M.J. 7, 9
(C.M.A. 1982). Defense Exhibit A was the critical piece of
appellant's sentencing case since it was the only exhibit that
Further, the vast breadth of appellant's "Good
directly presented matters in extenuation and mitigation under
Soldier Book" alone made it an important and influential exhibit
exact contents of the missing exhibit coupled with the limited
at his court-martial. The lack of information regarding the
general knowledge of it from the record demonstrates that its
absence was substantial.
More importantly, appellant's "Good Soldier Book" contained
information relating to his two combat deployments.
M.J. at 586 (Ham, J., dissenting). This Court has long recognized the "special distinction" of combat service.
States v. Demerse, 37 M.J. 488, 492 (C.M.A. 1993). Given this "special distinction" and the combat service information lost in appellant's original "Good Soldier Book," one can only conclude that appellant's record is incomplete.
United States v. Stoffer, 53 M.J. 26 (C.A.A.F. 2000), is instructive regarding the issue of whether the omission of
appellant's "Good Soldier Book" is substantial.
that "the lower court erred by affirming a sentence that included a BCD because missing exhibits render the record of
trial substantially incomplete." Id. at 27.
In Stoffer, the
defense counsel introduced Defense Exhibits A, B, and C without
identifying what the exhibits contained.
to "presume" the contents of Defense Exhibits A, B, and C and found that the failure to include them in the record of trial
constituted a "substantial omission." Id.
contents contained in Defense Exhibit A.
Simply put, there is
As in Stoffer, this court cannot guess as to the exact
no basis in the record from which to infer the contents of appellant's "Good Soldier Book." Thus, appellant's single exhibit containing matters in extenuation and mitigation is
missing just like all of the exhibits in extenuation and
mitigation were missing from Stoffer's record of trial. See
Henry, 53 M.J. at 111 n. (identifying that "none of the
extenuation and mitigation exhibits were included in the record
of trial" in Stoffer). Given the extensive nature and
importance of the missing exhibit and the absence of a full and
detailed description of its contents, this Court must find that
the omission was substantial.
3. The Government Has Not Overcome The Presumption Of Prejudice Resulting From Having A Substantial Omission From The Record
Once an omission is found to be substantial, the burden
shifts to the government to overcome the presumption of
prejudice. McCullah, 11 M.J. at 237. This is due to the fact
that the government is responsible for the preparation of a
complete record. Boxdale, 47 C.M.R. at 352.
In fact, "it is
fitting that every inference be drawn against the [g]overnment
with respect to the existence of prejudice because of an
omission." McCullah, 11 M.J. at 237.
The government has failed to overcome this presumption in
the three years that appellant's case has been before the Army
See United States v. Embry, 60 M.J. 976, 982-84 (Army
Ct. Crim. App. 2005) (holding that the government failed to rebut
the presumption of prejudice arising from the fact that an
appellate exhibit was missing from the record of trial); Seal,
38 M.J. at 663 (finding an affidavit from the trial counsel
describing the contents of the missing videotapes presented by
the defense during pre-sentencing as insufficient) i and United
States v. Snethen, 62 M.J. 579, 581 (A.F. Ct. Crim. App.
2005) (holding a record not substantially verbatim "given the
importance of the lost testimony and arguments, the lengthy
duration of the unrecorded portion of the trial, and the length
of time between the trial and reconstruction efforts") .
United States v. Eichenlaub, 11 M.J. 239 (C.M.A. 1981),
represents a case where the government was able to overcome the
presumption of prejudice associated with a nonverbatim or
incomplete record of the proceedings. The record lacked the
military judge's sentence announcement and clemency
recommendation as well as the effect the sentence would have on
the pre-trial agreement.
Id. at 240. This Court found that the
government overcame its burden because the "summarization
The court also put:
meticulously details what. matters were discussed." Id. at 241.
some reliance on the fact that the summarization of this brief segment of the proceedings was the product of the effort by all the trial participants involved [-] the court reporter, both counsel, and the military judge [-] without the slightest hint anywhere in the record that there was any disagreement in any of these quarters as to the accuracy and completeness of the summarization.
Appellant's case stands in stark contrast to Eichenlaub.
First, the only substantial, critical exhibit directly relating
to appellant's extenuation and mitigation under R.C.M. 1001(c)
is missing versus a "brief s~gment of the proceedings" at issue
Second, the parties in appellant's case did not
"meticulously" reconstruct appellant's "Good Soldier Book" since
the "substitution memorandum," authored by an individual who was
not even a party at appellant's court~martial, did not identify
the specific contents of the exhibit.
Finally, there is great
disagreement as to the contents of the missing exhibit between
appellant and the government. As such, a comparison of
appellant's case with Eichenlaub demonstrates that the
government has failed to overcome the presumption of prejudice
associated with appellant's missing "Good Soldier Book."
4. The Only Remaining Appropriate Remedy Is For A Nonverbatim Record Sentence To Be Approved
As such, the question becomes: what is the appropriate
remedy in this case? The Army Court, in its initial
disposition, identified the following options:
(1) To affirm only the limited sentence for an incomplete record per R.C.M. 1103;
(2) Order a sentence rehearing;
(3) Order a DuBay hearing to determine if the matter is substantial and to potentially reconstruct the omission; or
(4) Test the omission for harmless error.
Gaskins, 69 M.J. at 572. Option three has already been rejected
by this Court.
Gaskins v. Hoffman,'
, Misc. No. 11-
8004/AR (C.A.A.F. Dec. 9, 2010) (summary disposition). Option four is not viable given the importance of the missing exhibit and its negative effect on appellant's chances of clemency with the convening authority and the Army Court's inability to
conduct a proper appellate review of appellant's case. option two is inappropriate under the unique facts of appellant's case, option one is the only appropriate remedy.
A sentence rehearing is inappropriate here where the government is responsible for the lost "Good Soldier Book." The material is not retrievable or the government would have
reconstructed appellant's "Good Soldier Book" by now.
exhibit cannot be reconstructed, it would be fundamentally unfair to hold a sentence rehearing when appellant will not be able to present his best pre-sentencing evidence as a result of the government's negligence in the original court-martial.
While 26 awards are listed on appellant's ERB, none of the award citations are available and appellant would be left paying the price for this omission. See United States v. Young, 50 M.J. 717, 728 (Army Ct. Crim. App. 1999) (recognizing that even if an ERB is accurate, "it is a poor substitute for the actual
citation/commendation accompanying any award, evaluation reports, and witnesses that can document a soldier's contributions") .
Although their opinion sets forth no rationale or analysis, it appears that the Army Court wants to avoid a nonverbatim record sentence by authorizing a sentence rehearing where the burden will be on appellant to make up for the government's negligence. The Army Court squarely places the onus on appellant to come up with material to replace the only copy of his "Good Soldier Book. II This result is absurd and surely not what Congress had in mind when drafting Articles 19 and 54 of the UCMJ or what the President had in mind in promulgating R.C.M. 1103. This result also flies in the face of Seal and Stoffer, the only other two reported cases in which the government lost defense sentencing exhibits that constituted
substantial omissions from the record.
See Gaskins, 69 M.J. at
587 (Ham, J., dissenting).
R.C.M. 1103(b) places the responsibility for preparing the record of trial on the government. As such, the government, and not appellant, must bear the onus for losing Defense Exhibit A. Thus, the only appropriate remedy in appellant's case is option
to affirm the limited sentence for an incomplete record
per R.C.M. 1103.
5. It Is Appropriate For This Court To Issue A Writ of Mandamus
"A superior judicial tribunal can require inferior courts
and magistrates to do that justice which they are in duty and by
virtue of their office bound to dO./I Dettinger v. United
States, 7 M.J. 216" 218 (C.M.A. 1979) (citations and internal
quotation marks omitted) "The power of a superior judicial
tribunal to grant extraordinary relief from an order or judgment
of a subordinate tribunal has, in the federal judicial system,
§1651 (a)./I Id.
"The Act authorizes all courts established by
generally been predicated upon the All Writs Act, 28 U.S.C.
Congress to issue writs necessary or appropriate in aid of their
respective jurisdictions./I Id. (internal quotation marks
While the writ of mandamus should be invoked only in truly
extraordinary situations, it is appropriate when a lower court's
decision amounts /Ito a judicial usurpation of power, or
United States v. Labella, 15 M.J. 228, 229 (C.M.A.
characteristic of an erroneous practice which is likely to
1983) (citations and internal quotation marks omitted) .
look at the following five factors in determining whether to
issue a writ of mandamus:
(1) The party seeking relief has no other adequate means, such as direct appeal, to attain the relief desired;
prejudiced in a way not correctable on appeal;
(3) The lower court's order is clearly erroneous as a matter of law;
(4) The lower court's order repeated error, or manifests disregard of federal rules;
is an ofta persistent
(5) The lower court's order raises new and impqrtant problems, or issues of law of first impression.
Dew v. United States, 48 M.J. 639, 648-49 (Army Ct. Crim. App.
1998) (citing In re American Medical Systems, Inc., 75 F.3d 1069,
1078 (6th Cir. 1996) and Bauman v. United States District Court,
557 F.2d 650, 654-55 (9th Cir. 1977)). Appellant need not
satisfy all of the so-called Bauman factors because not all of
the factors will apply in every case and "rarely will they all
point to the same conclusion."
Id. at 649.
Application of the five Bauman factors indicates that
First, appellant has no other means to obtain the relief
issuing a writ of mandamus would be appropriate in appellant's
he requests. According to the Army Court's decision, the
government may have a sentence rehearing for appellant. While
appellant would be able to appeal any issues that might possibly
arise from his sentence rehearing, he simply cannot appeal the
Army Court's current decision except via this writ of mandamus.
Second, appellant will be prejudiced in a way not
correctable on appeal. Defense Exhibit A is lost due to
government negligence, yet the Army Court places the burden on
appellant to reconstruct the impossible since his original "Good
Soldier Book" is gone. Meanwhile, appellant has already served
two and a half years of confinement in excess of the
jurisdictional limits of a case with a substantially incomplete
Third, the Army Court's order authorizing a sentence
rehearing for appellant is clearly erroneous as a matter of law.
The Army Court made the basis for its decision clear in its
initial disposition of appellant's case. The Army Court found
that "there is an omission from appellant's record of trial,
which did not cease to be an omission when a 'substitute
memorandum' was included in the record." Gaskins, 69 M.J. at
572. Despite this finding, the Army Court came to the following
In light of the seriousness of appellant's offenses, the substantial sentence he received, and the fact the omission in this case relates only to sentencing evidence rather than to appellant's guilt, we conclude an eleven and a half-year reduction in the sentence and disapproval of a punitive discharge is an extreme remedy insufficiently justified by the current record.
Id. at 572-73.
Therefore, the Army Court must have disregarded Articles 19
and 54 of the UCMJ as well as Stoffer and Seal solely because of
the nature of the offenses. However, the extreme remedy that
the Army Court seeks to avoid is mandated by statute and this
Court's case law. As explained earlier, no other remedy is
appropriate at this stage of the proceedings other than the
approval of a nonverbatim record sentence.
Finally, the fourth and fifth Bauman factors do not apply
to appellant's case. But it is significant that the government
has never requested a sentence rehearing In this case. Under
Greenlaw v. United States, 554 U.S. 237, 247-48 (2008), it was
bite of the apple - indeed, a bite it never sought.
improper for the Army Court to provide the government another
United States v. Blazier, 68 M.J. 439, 443 (C.A.A.F. 2010).
Appellant's court-martial concluded over three years ago.
"[I]t is appropriate to finalize this case now in lieu of
returning this record to the [trial court] for sentence
over three years ago.
Stoffer, 53 M.J. at 28.3
re[hearing] and prolonging litigationu which began with trial
WHEREFORE, the undersigned respectfully request that, for
the sake of judicial economy and finality, this Court either
3 The notions of finality and judicial economy have long been appropriate concerns of appellate courts. As Supreme Court Justice Louis Brandeis noted, "[i]t is usually more important that a rule of law be settled, than that it be settled right.u Di Santo v. Commonwealth of Pennsylvania, 273 U.S. 34, 42 (1927) (Brandeis, J., dissenting). The principle of finality
would also apply in appellant's case, but this Court can be provided the additional comfort that this case will be settled right in that the result will be the one mandated by Congress.
order the Army Court to only approve a nonverbatim record sentence or take direct action and approve one itself.
Wherefore petitioner requests this Court issue a writ of
mandamus ordering that only a nonverbatim record sentence in
accordance with R.C.M. 1103(f) (1) may be approved in appellant's
case. Alternatively, appellant asks this Court to take direct
action on appellant's sentence in the interest of judicial
economy and approve a nonverbatim record sentence.
MATTHEW T. GRADY
Captain, Judge Advocate Appellate Defense Counsel USALSA, Defense Appellate
901 North Stuart St., Stew 340 Arlington, Virginia 22203 Phone: ( 703) 588 - 5 2 8 3 matthew.gradyl@us+army.mil USCAAF No. 35092
PETER KAGELEIRY Lieutenant Colonel,
Advocate Branch Chief, Defense Appellate Division
USCAAF No. 35031
Evans, GA 30809 706-860-5769 firstname.lastname@example.org USCAAF No. 26503
Lieutenant Colonel, Judge
Senior Appellate Counsel, Defense Appellate Division USCAAF No. 26450
Colonel, Judge Advocate Chief, Defense Appellate Division
USCAAF No. 28364
CERTIFICATE OF FILING AND SERVICE
I certify that a copy of the foregoing in the case of
United States v. Gaskins, Crim.App.Dkt.No. 20080132, USCA Dkt.
/AR, was electronically filed with both the Court and
Government Appellate Division on February 28, 2011.
Paralegal Specialist Defense Appellate Division (703) 588-6023
UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before the Court Sitting En Bane
UNITED STATES, Appellee
Staff Sergeant DANIEL GASKINS United States Army, Appellant
Headquarters, United States Army Southern European Task Force Timothy Grammell and Gregg Marchessault, Military Judges Lieutenant Colonel Harrold J. McCracken, Staff Judge Advocate (pretrial) Colonel Harrold J. McCracken, Staff Judge Advocate (recommendation) Major Sean T. McGarry, Acting Staff Judge Advocate (addendum)
For Appellant: Colonel Mark Tellitocci, JA; Major Peter Kageleiry, JA; Lieutenant Colonel Jonathan Potter, JA; Captain Brent A. Goodwin, JA; William E. Cassara, Esquire; (on writ); William E. Cassara, Esquire (argued); Captain Elizabeth Turner, JA; William E. Cassara, Esquire (on brief).
For Appellee: Colonel Michael E. Mulligan, JA; Major Christopher B. Burgess, JA; Major Adam S. Kazin, JA (on writ); Captain Nicole L. Fish (argued); Colonel Norman F.J. Allen III, JA; Lieutenant Colonel Martha L. Foss, JA; Major Adam S. Kazin, JA; Captain Nicole L. Fish (on brief).
10 February 2011
SUMMAR Y DISPOSITION ON REMAND
A panel of officers and enlisted members sitting as a general court-martial convicted appellant, contrary to his pleas, of carnal knowledge, indecent acts with a child, and indecent assault, in violation of Articles 120 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 920 and 934 [hereinafter UCMJ]. The convening authority approved the adjudged sentence of a dishonorable discharge, confinement for twelve years, forfeiture of all pay and allowances, and reduction to the grade of Private El.
When the case came before us for review pursuant to Article 66, UCMJ, appellant alleged, inter alia, a substantial omission from the record of trial rendering
it incomplete within the meaning of Article 54, UCMJ. We ordered the record of trial to be returned to the convening authority for a limited hearing to determine whether substantial matters were omitted from the record and, if so, whether the record was therefore incomplete within the meaning of Article 54, UCMJ.
On 16 September 2010, appellant filed a petition for extraordinary relief in the nature of a writ of prohibition. On 9 December 2010, our superior court issued the writ, holding, "ordering a factfinding hearing pursuant to United States v.
DuBay, 17 U.C.M.A. 147, 37 C.M.R. 411 (1967), to reconstruct Defense Exhibit A is inappropriate under the facts of this case," and remanded the case back to this court "for further consideration of [our] other options in light of this action." Gaskins
v. Hoffman, __ M.J. __ , Misc. No. 11-8004/AR (C.A.A.F. Dec. 9,2010) (summary disposition). We, therefore, grant relief by setting appellant's sentence aside and
authorizing a sentence rehearing. (
The findings of guilty are affirmed. The sentence is set aside. A rehearing on the sentence may be ordered by the same or a different convening authority.
Senior Judge CONN, Senior Judge JOHNSON, Judge GALLAGHER, Judge BAIME, and Judge BURTON concur.
SIMS, Judge, with whom TOZZI, Chief Judge, joins (concurring in part and dissenting in part):
I agree with the majority that the omission of Defense Exhibit A, appellant's "Good Soldier Book," does not affect the findings in this case and thus, I concur with the decision to affirm the findings. I also agree that, at this juncture, the majority's disposition in this case is not contrary to our authority as a court. However, Irespectfully dissent from the remedy ordered by the majority and adhere to the legal reasoning contained in Judge Ham's original dissent. United States v. Gaskins, 69 M.J. 569,574 (Army Ct. Crim. App. 2010) (Ham, J. dissenting).
The government has had ample time to account for the lost exhibit in this case and has failed to do so or make an adequate substitute. A rehearing conducted without the benefit of appellant's "Good Soldier Book" denies appellant the ability to adequately present his sentencing case. As the majority has already established, the missing exhibit in this case is a substantial omission, and this omission cannot be
. remedied unless the missing evidence is produced at a rehearing. This is not a case where a witness can be recalled or an argument can be presented anew. Lost exhibits like the one at issue here present a much more difficult omission to remedy. Accordingly, unless appellant (1) expressly waives the issue at the rehearing, (2) the government generously stipulates to the contents of the lost exhibit, (3) the military judge imposes restraints on either the maximum sentence or the government's ability
to present evidence in aggravation, * or (4) appellant receives a nonverbatim record sentence, this court likely will again be faced with the issue of the lost exhibit.
For all of the reasons stated here and in Judge Ham's dissenting opinion, Gaskins, 69 M.J. at 574, I dissent from the remedy ordered by the majority. The more appropriate remedy is approval of a nonverbatim record sentence in accordance with Rule for Courts-Martial 1103(f)(1).
GIFFORD, Judge (concurring in part and dissenting in part):
For the reasons stated in Judge Ham's dissenting opinion and set forth below, I dissent from the majority's decision to order a sentence rehearing as remedy for the government's loss of Defense Exhibit A-the appellant's "Good Soldier Book." United States v. Gaskins, 69 M.J. 569,574 (Army Ct. Crim. App. 2010) (Ham, J. dissenting). I reiterate that based on the specific facts of this case, the more appropriate remedy is approval of the sentence set forth in Rule for Courts-Martial [hereinafter R.C.M.] 1103(b)(3)(f).
The majority's opinion does not state that it concluded the government's loss of Defense Exhibit A is a substantial omission from the record of trial or that it created a presumption of prejudice which the government had not overcome. See e.g., United States v. Henry, 53 M.J. 108, 110-11 (C.A.A.F.2000) (citations omitted). By ordering a rehearing on the facts presented, and after issuance of the writ of mandamus by our superior court, however, such conclusions are the only rational and logical ones to make of the majority's action.
Appellant's court-martial ended on 8 February 2008. As noted in the dissent to this court's original decision regarding appellant's case, "the government conducted an exhaustive search for Defense Exhibit A in the months preceding the convening authority'S action." Gaskins, 69 M.J. at 574. On appeal pursuant to Article 66(c), UCMJ, the government made no apparent effort to file additional documents with this court to account for the missing exhibit or otherwise document its contents. Id. In fact, in the record of trial, the government made statements to
See United States v. Murphy, Misc. Dkt. No. 2007-03, slip op. at 17 (A.F. Ct.
Crim. App. 22 December 2008) (unpub.) (holding that where defense sentencing evidence in mitigation was unavailable due to government's conduct, the military judge did not abuse his discretion by limiting the maximum sentence to no punishment).
the effect that it did not believe it would be able to locate the exhibit. To date, almost three years after trial, Defense Exhibit A remains missing. t
Rule for Courts-Martial 1103(b)(3)(f) delineates the two options available when a record is incomplete. In brief form, these options are: (1) approve a "nonverbatim" sentence (i.e.,six months confinement or forfeiture of 2/3 pay for six months); or (2) order a sentence rehearing on those offenses supported by a summary of evidence in the file, subject to certain limitations by the convening authority. See R.C.M. 1103(b)(3)(f)(1) and (2). Judge Ham's dissent to this court's original opinion also noted other options gleaned from case law. See Gaskins, 69 M.J. at 586.
The record reflects that at the time of trial, appellant had served in both the u.S. Army and u.S. Marine Corps for a total of thirteen years, had completed two combat tours, and was serving in the grade of staff sergeant. Id. at 578. Defense Exhibit A was described by appellant's defense counsel as a "three-inch thick, threering binder" containing a "compilation of [appellant's] awards, certificates, letters of commendation, and character letters from family and friends, as well as a number of photographs." Id. at 582. With the exception of the photographs, appellant did not cite to any other portions of Defense Exhibit A when giving his unsworn statement to the panel members. Defense Exhibit A was appellant's singular defense exhibit tendered during the pre-sentencing phase. Although the defense presented four witnesses during presentencing-two unit witnesses, appellant's brother, and appellant-Defense Exhibit A appears to be the primary source of evidence upon which the defense predicated its sentencing case. Review of the record reflects it is apparent that the defense sought to rely on Defense Exhibit A to portray appellant's career, background, and character to the panel.
The majority's conclusion that a rehearing is an appropriate remedy for the loss of appellant's Good Soldier Book fails to recognize the post-trial and appellate facts of this case. This court's decision to order a rehearing unfairly places the onus on appellant to present a sentencing case. The record clearly reflects neither appellant nor, more importantly, the government were able to locate a number (i.e., almost all) of appellant's military documents regarding his military service. While certain cases may be appropriate for a rehearing, based on the specific facts of this case, this is not one.
t As noted in the majority opinion, the majority attempted to order a DuBay hearing to have a military judge, in effect, identify the contents of the lost exhibit and make findings regarding whether the loss (if the exhibit was lost) was substantial. United States v. DuBay, 17 U.C.M.A. 147,37 C.M.R. 411 (1967); Gaskins, 69 M.J. at 573. Our superior court subsequently issued a writ of mandamus prohibiting the DuBay hearing. Gaskins v. Hoffman, __ M.J. __ , Misc. No. 11-8004/AR (C.A.A.F. Dec. 9, 2010) (summary disposition).
I agree with the majority that the omission of Defense Exhibit A, appellant's
. "Good Soldier Book," does not affect the findings in this case and, thus, concur that the findings are unaffected by the loss of Defense Exhibit A.
For the foregoing reasons, I dissent, however, from the majority's decision to order a sentence rehearing in appellant's case.
FOR THE COURT:
MALCOLMH. Clerk of Court
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