United States v. Irvin

U NITED S TATES A IR F ORCE C OURT OF C RIMINAL APPEALS UNITED STATES ) No. ACM 40311 Appellee ) ) v. ) ) ORDER Codi A. IRVIN ) Airman First Class (E-3) ) U.S. Air Force ) Appellant ) Panel 1 On 27 April 2023, Appellant’s counsel submitted a Motion to Examine Sealed Material, requesting permission for appellate counsel for the Appellant and the Government to examine Prosecution Exhibit 1 and its attachments, the stipulation of fact. Upon this court’s initial review of the record, it discov- ered Prosecution Exhibit 1 and its attachments were ordered sealed by the military judge at trial but were not sealed in the record of trial filed with the court. On 1 May 2023, the court granted Appellant’s Motion to Examine Sealed Material, sealed Prosecution Exhibit 1 in the record retained by the court, and ordered the Government to retrieve and destroy any unauthorized copies.

Upon further review of the record, it was discovered that Attachments 2 and 3 of Prosecution Exhibit 1 were not appended to the exhibit. Attachment is identified as “Child Pornography – six video files (1 disc),” and Attachment is identified as “Aggravation Evidence – four picture files (1 disc).” Both at- tachments are missing from the record.

Accordingly, it is by the court on this 12th day of May, 2023, ORDERED: The record of trial in Appellant’s case is returned to the Chief Trial Judge, Air Force Trial Judiciary, for correction under R.C.M. 1112(d) to account for Prosecution Exhibit 1, and any other portion of the record that is determined to be missing or defective hereafter, after consultation with the parties. See Article 66(g), UCMJ, 10 U.S.C. § 866(g); R.C.M. 1112(d)(2)–(3). Thereafter, the record of trial will be returned to this court for completion of its appellate re- view under Article 66(d), UCMJ, 10 U.S.C. § 866(d).

United States v. Irvin, No. ACM 40311

The record of trial will be returned to the court not later than 5 June 2023.

If the record cannot be returned to the court by that date, the Government will inform the court in writing not later than 23 May 2023 of the status of the Government’s compliance with this order.

FOR THE COURT

FLEMING E. KEEFE, Capt, USAF Deputy Clerk of the Court