This opinion is subject to administrative correction befo re final disposition.

Before HOLIFIELD
, DALY , and GROSS Appellate Military Judges

_________________________ 

### UNITED STATES Appellee

v.

Kimo N

. HOOPII , Jr. Lance C orp oral (E

- 3 ), U.S. Marine Corps Appellant

No. 20 2 300061

_________________________
Decided: 30 July 2024
Appeal from the United States Navy

- Marine Corps Trial Judiciary
Military Judge: Andrea C. Goode
Sentence adjudged 18 November 2022 by a special court

- martial tried at Marine Corps Base Camp Pendleton , California , consisting of a military judge sitting alone

. Sentence in the Entry of Judgment : reduction to E

- 1, confinement for 4 months , and forfeiture of $ 610 .00 pay per month for 4 months

. For Appellant: C

ommander Lindsay W

. Pepi
, JAGC, USN
For Appellee: Lieutenant Rachel E. Noveroske , JAGC, USN Lieutenant Blake R. Royall, JAGC, USNUnited States v. Hoopii
, Jr., NMCCA No. 202 300061 Opinion of the Court

2 _________________________
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: A special court

- martial convicted Appellant, pursuant to his pleas, of two specifications of larceny, in violation of Article 121, Uniform Code of Military Justice (UCMJ)

. 1 This case is before us on direct appeal submitted by Appellant pursuant to Article 66(b)(1), UCMJ. Appellant asserts a single assignment of error (AOE), which we rephrase as follows: The military judge created a lack of jurisdiction when she instructed trial counsel to am end the convening order without approval from the convening authority. We find no prejudicial error and affirm.



### I. B ACKGROUND
After entering into a plea agreement with Appellant on 27 September 2022, t he convening authority in this case referred the charge to a special court

- martial consisting of a military judge alone pursuant to Article 16(c)(2)(A). 2 He did so with the following language, contemporaneously convening a court

- martial and referring the charge to it:

1 10 U.S.C. § 921.

2 10 U.S.C. § 816(c)(2)(A).United States v. Hoopii
, Jr., NMCCA No. 202 300061 Opinion of the Court

3 At trial, the military judge asked trial counsel to state the jurisdictional data for the record. The following discussion occurred:

TC: This court

- martial is convened by the charge sheet . . . dated 20 January

— that’s incorrect

— dated 2 November 22 . . . .

. . . MJ: All right, I know why you m essed that one part up, it is because there is an error on the referral Section of the charge sheet. So come up here and grab the charge sheet. It looks like they did a cut

- and

- paste from a prior referral
, because it says . . . “This special court

- martial convenedby this document on 20 January 2021 . . . dated 20 January 2021.” It should all be 2 November 2022.

. . . MJ: So just come up here and make the pen change.

. . . MJ: Because this is an error to the referral Section of the charge sheet, defense, do you have any objections to making this pen change? DC: No, Your Honor.
MJ: It is an obvious cut

- and

- paste error and the Court does not find it rises to the level of an improper referral. 3 Appellant’s guilty plea and senten cing then proceeded with no further mention of the matter.



### II. L AW
We review questions of jurisdiction de novo. 4 We test administrative convening order and referral errors for prejudice. 5

3 R. at 2

- 4.

4 United States v. Begani , 81 M.J. 273, 276 (C.A.A.F. 2021) (citation omitted).

5 United States v. Gebhart , 34 M

. J

. 189, 193 (C.A.A.F. 1992).United States v. Hoopii
, Jr., NMCCA No. 202 300061 Opinion of the Court

4 A court

- martial has jurisdiction over a case if: (1) it is convened by a n official empowered to convene it; (2) it is composed in accordance with the r ules for c ourts -m artial relating to the number and qualifications of personnel; (3) each charge before it is referred to it by competent authority; (4) the accused is subject to court

- martial jurisdiction; and (5) the offense is subject to court

- martial jurisdiction. 6
While the UCMJ clearly defines who may convene (Article 22) and who may

serve on (Article 25) a court

- martial, it is nearly silent regarding the content and form of a convening order. Rule for Courts

- Martial 504(d) requires only that a convening order for a special court

- martial “designate the type of court

martial” and “detail the members, if any.” But Rule for Courts

- Martial 503(d)(3) provides that “[a]dditional matters to be included in convening orders may be prescribed by the Secretary concerned .” At the time of Appellant’s trial, these “additional matters” included “a court

- martial convening order number” and information identifying the convening authority. 7 T his prescription also included the following provision: A military judge alone special court

- martial authorized by Article 16(c)(2)(A) is convened with the use of a convening order or, at the time of referral, by annotating Section V of the charge sheet as follows: “Referred for trial to the special court

- martial convened by (name of convening authority) (date), subject to the following instructions: This case is to be tried as a special court

martial consisting of a military judge alone pursuant to UCMJ, A rticle 16(c)(2)(A).” 8 Regardless of form, however, “ [a] convening order which brings a court

- martial into being is but an expression of the intent of the convening authority. The particular document which is prepared is merely a formal recordation of that e xpressed intent. ” 9 The statutory definition of “referral” is “the order of a convening authority . . . that charges and specifications against an accused be tried by a specific

6 Rule for Courts

- Martial 201(b).

7 JAG INST 5800.7 G CH 1 , Manual of the Judge Advocate General (JAGMAN)
, 14 Feb 2022, para 0133 c

.

8 Id

.

9 United States v. Glover
, 15 M.J. 419, 421 (C.M.A. 1983)

.United States v. Hoopii
, Jr., NMCCA No. 202 300061 Opinion of the Court

5 court

- martial.” 10 A proper referral requires three things: (1) an authorized, b ut not disqualified, convening authority; (2) preferred charges received by that convening authority for disposition; and (3) a court

- martial convened by that convening authority or a predecessor. 11 P rocedural provi sions regarding referral are not statutory, and, normally, departures fro m these procedures are not defects of j urisdictional proportion

. 12



### III. D ISCUSSION

A. The Convening Authority’s Intent is Clear The convening authority convened a special court

- martial on 2 November 2022 when he signed Section V of the charge sheet. He contemporaneously referred the charges to that court

- martial. The words “ This document” can mean nothing other than the charge sheet upon which they appear . While th e conflicting dates indicate a lack of attention t o detail , they are not necessary for the parties in this case to understand what document

— or court

- martial

— the convening authority referenced. T here was no confusion regarding what specific court

- martial was to t ry the charge and specification s

. Indeed, th e charge and specifications were referred to this specific court

- martial as part of a specially negotiated provision in the plea agreement between Appellant and the convening authority. Additionally , we have the “Article 34 letter,” 13 indicating that the c onvening authority consulted with a judge advocate “ prior to referring the charge and specification s preferred in enclosure (1) to a special court

- martial.” Enclosure (1) of that letter is the “Preferred Charge Sheet of 18 August 22”

— i.e., the

10 Art 34(e), UCMJ.

11 Rule for Courts

- Martial 601(a) (Discussion).

12 United States v. Simpson , 16 C.M.A. 137, 139, 36 C.M.R. 293, 2 95 (1966). See also United States v. Fields , 17 M.J. 1070, 1071 (A.F.C.M.R. 1984), pet. denied , 19 M.J. 56 (C.M.A. 1984).

13 Article 34, UCMJ.United States v. Hoopii
, Jr., NMCCA No. 202 300061 Opinion of the Court

6 charge sheet in this case. 14 The letter is signed 3 November 2022, one day following the convening authority’s handwritten date and signature on the referral block. 15 Considering together the language and dates on the charge sheet, the language of the Article 34 letter, and the discussion between the military judge and the parties concerning the conflicting dates, we are convinced that the parties fully understood what the charges were, who the convening authority was, and to what court

- martial that convening authority r eferred those charges.
T he language in Section V does not track completely with the JAGMAN’s language . But to find that the trial counsel’s pen

- and

- ink correction of the date somehow convened a different court

- martial or affected the referral in this case would be absurd. This correction in no way reflected any deviation from the convening authority’s clear intent. If anything, it brought the language of Section V more in line with that intent.

B. The Error was Administrative, not Jurisdictional

— and was Waived As we find the error created no uncertainty as to the convening and referral process in this case, we conclude the error was not one of jurisdiction. And, being administrative in nature, the error was waived by Appellant. When the military judge spe cifically asked if the Defense had any objection to trial counsel correcting the erroneous date via a pen

- and

- ink change, Appellant’s counsel said “no.” 16 But, e ven were we to ignore this clear evidence of waiver, the result is the same. Appellant has demon strated no prejudice resulting from this administrative error. 17

14 Enclosure (1) to Article 34, UCMJ, pre

- referral advice to convening authority letter.

15 Although the “Article 34 letter” was signed the day after the date of referral, it specifically states that the convening authority consulted an attorney before he made the referral

-- as required by Rule for Courts

- Martial 406A.

16 R. at 4.

17 See Glover , 15 M.J. at 422 (“ [T] he intent of the convening authority was known,and all the parties to the trial, including appellant, had a clear and correct understanding of that intent and acted accordingly. Consequently, the administrative error involved here did no t rise to the level of prejudice to the accused. ”)United States v. Hoopii
, Jr., NMCCA No. 202 300061 Opinion of the Court

7 

### IV. C ONCLUSION

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. 18 However, we note that the Entry of Judgment (EOJ) does not sufficiently identify the dates of the specifications to which Appellant pleaded guilty. We recently defined the requirements for an EOJ in United States v. Wadaa , holding that the summary of the charges and specificati ons must contain the date of each offense. 19 Although we find no prejudice, Appellant is entitled to have court

- martial records that correctly reflect the content of his proceeding. 20 In accordance with Rule for Courts

- Martial 1111(c)(2), we modify the Entry of Judgment and direct that it be included in the record.
T he findings and sentence are AFFIRMED

.

FOR THE COURT:

MARK K. JAMISON Clerk of Cour t

18 Articles 59 & 66, UCMJ

.

19 __M.J. __, No. 202300273, 2024 CCA LEXIS 148 at *6 (N

- M. Ct. Crim. App. Apr. 25, 2024).

20 United States v. Crumpley , 49 M.J. 538, 539 (N

- M. Ct. Crim. App. 1998).UNITED STATES



### v.

Kimo N. Hoopii, Jr. L ance C orporal (E

- 3 ) U.S. Marine Corps
Accused NMCCA NO. 202 300061



### ENTRY OF JUDGMENT

As Modified on Appeal

30 J uly 2024

On 1 8 December 202 2 , the Accused was tried at Marine Corps Base Camp Pendleton, California, by a special court

- martial, consisting of a military judge sitting alone. Military Judge Andrea C. Goode presided.



### FINDINGS
The following are the Accused’s pleas and the Court’s findings to all offenses the convening authority referred to trial:

Charge I: Violation of Article 1 21 , Uniform Code of Military Justice, 10 U.S.C. § 9 21

.

Plea: Guilty. Finding: Guilty.
Specification 1 : On or about 16 April 2022 , commit larceny of

non - military property of a value of more than $1,000.
Plea: Guilty. Finding: Guilty.
Specification 2 : On or about 1 May 2022, commit larceny of non

military property of a value of more than $1,000.
Plea: Guilty. Finding: GuiltyUnited States v. Hoopii
, Jr., NMCCA No. 202 300061 Modified Entry of Judgment

2 

### SENTENCE

On 1 8 December 202 2 , a military judge sentenced the Accused to the following: Reduction to pay grade E

- 1.
Confinement for a total of four months

. Forfeiture of $ 610.00 pay per month for 4 months.

FOR THE COURT:

MARK K. JAMISON Clerk of Court