GASKINS—ARMY 20080132

**UNITED STATES ARMY COURT OF CRIMINAL APPEALS**

Before the Court Sitting *En Banc*

**UNITED STATES, Appellee**

**v.**

**Staff Sergeant DANIEL GASKINS**

**United States Army, Appellant**

ARMY 20080132

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

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SUMMARY DISPOSITION ON REMAND

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HOFFMAN, Judge:

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 E1.

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, I respectfully 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 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.†

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 “non-verbatim” 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, three-ring 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. 

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:

MALCOLM H. SQUIRES JR.

Clerk of Court

� 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).

†  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).

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