United States v. Allende: substitute authentication and appellate delay

In United States v. Allende, __ M.J. ___, No. 06-0908/NA (C.A.A.F. Mar. 12, 2008), CAAF resolves one remarkably narrow issue and then distinguishes one of its previous cases in a potentially significant manner. In Allende, Chief Judge Effron wrote for a unanimous court.

First the narrow issue. The TC in Allende authenticated the record "because of [the] absence of the military judge." On appeal, the defense maintained that was an insufficient justification for substitute authentication. NMCCA agreed but held the error was harmless because: "(1) the record was substantially verbatim; (2) Appellant's counsel received an opportunity to comment on any corrections prior to authentication; (3) Appellant did not raise any legal issues concerning the record's accuracy prior to the convening authority's action; and (4) Appellant did not allege on appeal that the record was inaccurate." Id., slip op. at 7.

CAAF held that NMCCA, having found the record substantially verbatim, did not err in holding that the erroneous authentication of the ROT by the TC did not materially prejudice Petty Officer Allende.

The second issue in the case involved appellate delay. Seven years elapsed between the trial and NMCCA's affirmance. Petty Officer Allende maintained that he had been denied employment due to his lack of a DD-214 during this period. But he presented no information from potential employers to verify his claim. This lack of corroboration proved fatal. CAAF dropped a "compare" cite to United States v. Jones, 61 M.J. 80, 84-85 (C.A.A.F. 2005), which it described as "relying upon affidavits from a prospective employer to confirm that the lack of a DD-214 caused the employer to deny his application for employment." Id., slip op. at 10.

The lesson is clear. When making an appellate delay claim based on interference with post-trial employment opportunities, no corroborating evidence from the employer equals no prejudice.