United States v. Hubbard

U NITED S TATES A IR F ORCE C OURT OF C RIMINAL APPEALS UNITED STATES ) No. ACM 40339 Appellee ) ) v. ) ) ORDER Mason A. HUBBARD ) Airman (E-2) ) U.S. Air Force ) Appellant ) Panel 1 On 29 June 2022, Appellant was tried by a general court-martial at Dover Air Force Base, Delaware. In accordance with his pleas, and pursuant to a plea agreement, a military judge found Appellant guilty of one specification of pos- session of child pornography in violation of Article 134, Uniform Code of Mili- tary Justice (UCMJ), 10 U.S.C. § 934.* On 8 June 2023, Appellant submitted a Motion to Examine Sealed Mate- rial, in which defense counsel moved to examine the attachments to Prosecu- tion Exhibit 1. Prosecution Exhibit 1 contains an Attachment A. As defined by the stipulation of fact, Attachment A is a disk containing a contraband image.

Upon review by this court, it was discovered that this disk is blank and does not contain the contraband image referred to by the stipulation of fact or any other image not referred to by the stipulation of fact. Consequently, the record of trial in Appellant’s case is to be returned to the Chief Trial Judge, Air Force Trial Judiciary, for correction under Rule for Courts-Martial (R.C.M.)

1112(d). As the record is being returned, we find Appellant’s Motion to Exam- ine Sealed Material to be moot. However, Appellant may again file a motion to view sealed materials after the case has been redocketed with this court.

Accordingly, it is by the court on this 15th day of June, 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 the missing attachment to the stipulation of fact, and any other portion of the

*All references in this order to the UCMJ and Rules for Courts-Martial are to the Manual for Courts-Martial, United States (2019 ed.).

United States v. Hubbard, No. ACM 40339

record that is determined to be missing or defective hereafter, after consulta- tion 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 review under Article 66(d), UCMJ, 10 U.S.C. § 866(d).

The record of trial will be returned to the court not later than 15 July 2023 unless a military judge or this court grants an enlargement of time for good cause shown. The Government will inform the court in writing not later than June 2023 of the status of the Government’s compliance with this order, unless the record of trial has already been returned to the court by that date.

It is further ordered: Appellant’s Motion to Examine Sealed Material is MOOT.

FOR THE COURT

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