## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before TOZZI, CAMPANELLA, and CELTNIEKS Appellate Military Judges

UNITED STATES, Appellee

v. Specialist TERRE W. MARTIN United States Army, Appellant

ARMY 20120898

Headquarters, Seventh U. S. Army Joint Multinational Training Command
Joshua S. Shue y, Military Judge Major John L. Ki el, Jr., Acting Staff Judge Advocate

For Appellant: Colone l Kevin Boyle, JA; Lieutenant Colonel Peter Kageleiry, Jr., JA; Major Amy E. Nieman, JA; Captain James S. Trieschma nn, Jr., JA (on brief).

For Appellee: Colonel John P. Carrell, JA ; Lieutenant Colonel James L. Varley, JA; Captain Sean P. Fitzgibbon, JA; Captain Timothy C. Erickson, JA (on brief).

16 September 2014

---------------------------------- SUMMARY DISPOSITION

----------------------------------

Per curiam:

A military judge sitting as a special court-martial convicted appellant, pursuant to his pleas, of larceny of m ilitary property of a va lue of $500 or less on divers occasions, in violation of Article 121, Uniform Code of Militar y Justice, 10 U.S.C. § 921 (2006). The military judge sent enced appellant to a bad-conduct discharge, confinement for nine months, a $10,000 fine, and reduct ion to the grade
of E-1. The conv ening authority waived automatic forfeitures for a period of six months and only appr oved so much of the sentence as extends to a bad-conduct discharge, confinement for nine months, and reduction to the grade of E-1.

This case is before us for review pursuant to Arti cle 66, UCMJ. Appellant’s sole assignment of error warrants discussion but no relief. Appe llant correctly notes that one government sentenci ng witness, Mr. DS , was never placed under oath. For the reasons explained below, this error did not materially prejudice the substantialMARTIN—ARMY 20120898

2 rights of appellant, and, accordingly, we affi rm the findings an d the sentence. See UCMJ art. 59(a).

Appellant entered provident pleas of guilty to steali ng funds from the dining facility (DFAC), where he worked. Appella nt repeatedly stole cash from the DFAC and repeatedly attempted to hide his la rceny by adjusting the headcount numbers downward in a DFAC database, the Armed Forces Management Information Service (AFMIS). A DFAC with a lower headcount generall y would have corresponding
lower amounts of revenue. Appellant thus evad ed detection until the government discovered abnormally large numbers of lowered head counts. Appellant estimated that he stole approximatel y $3,000, but also ack nowledged that he did not know how
much he stole.

In its pre-sentencing case, the gove rnment attempted to establish a more precise amount stolen by appellant. The government called se veral witnesses and the military judge admitted hundreds of pages of do cumentary evidence. The sentencing case culm inated with th e expert testimony of Ms . MH, an auditor and accountant assigned to the Internal Review and Audit Compliance Office, U.S. Army Europe. Ms. MH, after review ing much of the government’s case, testified that the DFAC in question had $4 7,173.65 in headcount reducti ons, and appellant was responsible for 77% of those reductions. The m ilitary judge admitted a spreadsheet (Pros. Ex. 17) reflecting Ms. MH’s calculations.

Ms. MH relied, inter alia , on four prosecution exhi bits (Pros. Ex. 10-13), which were printouts of logs of DFAC m eal adjustments occurr ing while appellant worked there. Those logs identified the person who made the he adcount reductions.
Included in each of those exhibits were attestation ce rtificates signed by Mr. DS, a
technician with AFMIS. The government also called Mr. DS as a telephonic witness,
but did not administer an oath to him. Appellant did not obje ct at trial to this failure
to swear Mr. DS. Mr. DS only testified about the nature of the exhibits at issue. The military judge ultimately admitted Pros. Exs. 10-13.

The government’s failure to administer an oath to Mr. DS is error that is plain
and obvious. See United States v. Washington , 63 M.J. 418, 424 (C.A.A.F. 2006); Rule for Courts-Martial 807(b )(1)(B); Military Rule of Evidence [hereinafter Mil. R. Evid.] 603. However, Mr. DS’s testimony was not nece ssary for the admission of
Pros. Exs. 10-13. Those reco rds are records of regularly conducted activities. Mil. R. Evid. 803(6). Mr. DS’s attestation certificates suffi ciently authen ticated those exhibits for purposes of admissibility. M il. R. Evid. 902(11). While appellant at trial presented an email from Mr. DS indica ting that he “resor ted and reformatted” the data to be clearer, we find that these circumstances of production do not indicate
a lack of trustworthiness for those exhibits . Mil. R. Evid. 803(6 ). Nothin g in the
record indicates that Mr. DS altered or otherwise manipulated the data except toMARTIN—ARMY 20120898

3 make it clearer. For exampl e, Mr. DS sorted the meal da ta by date of the meals,
instead of when the data was entered into th e system.

Even if Pros. Exs. 10-13 were inadmi ssible, we are not convinced that these exhibits substantially influe nced the adjudged sentence. See United States v. Reyes

, 63 M.J. 265, 267-68 (C.A.A.F. 2006). As described above, Pros. Exs. 10-13 were
subsumed within Pros. Ex. 17 and the testimony of Ms. MH . Ms. MH could rely on Pros. Exs. 10-13 (among other information) in forming her expert testimony and her properly-admitted spreadsheet. See Mil. R. Evid. 7 03. Thus, whether or not Pros. Exs. 10-13 were admissible, the contents of those exhibits were cumulative with the evidence properly admitted at trial.

CONCLUSION

Upon consideration of the entire recor d, the findings and the sentence as approved by the convening au thority are AFFIRMED.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court MALCOLM H. SQUIRES, JR.
Clerk of Court FOR THE COURT: