Article 39-A Proceedings re: Transcript of Arraignment for Sergeant Scott A. McKenzie

39-A Proceedings re: Transcript of Arraignment for Sergeant Scott A. McKenzie. This transcript is the procedural setting of trial date and assignment of attorneys for Sergeant Scott A. McKenzie.

Tuesday, July 20, 2004
Thursday, June 30, 2005

2 The military judge called the Article 39(a) session to order at Camp

3 Doha, Kuwait, at 1032, 15 November 2003, pursuant to the following

4 orders:
6 Court-Martial Convening Order Number 6, Headquarters, Coalition
7 Forces Land Component Command, Camp Doha, Kuwait, dated 3 July 2003.


DOD 14473

APO AE 09304

A general court-martial is hereby convened with the following members and Shall meet at ARCENT/Kuwait, unless otherwise directed:
MEMBERS COL. SC, HHC, Third U.S. Army, CFLCC-C6 COL. AG, HHC, 143d Transportation Group, DCS, G4 LT.IO, HHC, Third U.S. Army, CFLCC-C3 LTC. IN, HHC, Third U.S. Army, CFLCC, C3 MAI. ADA, HHC, Third U.S. Army, CFLCC, C3 *MAJ.V. HHC, Third U.S. Army, CFLCC, C4 *MA. HHC, ARCENT-KU *CPT.G, HHC, 335 th Theater Signal Command *CPT. OM, HHC, Third U.S. Army, CFLCC, C4
*CW3.SC. HHC., Third U.S. Army, CFLCC-C6
*These members are excused when the accused requests to be tried by a panel consisting of enlisted and officer memberS.
The following members are detailed to the court-martial when the accused requests enlisted members under Article 25(C), UCMJ:
S GM.• A HHC Third U.S. Arm CFLCC. C7
SG. USA, HHC, 377th Theater Support Command
SG 1.USA. HHC, Third U.S. Army, CFLCC, C6
SGM.USA, HHC, 377th Theater Support Command
MS., USA, HHC, 377th Theater Support Command

SSG, USA Criminal Law NCOIC
Each Member Selected


DOD 14472
1MMJ: This Article 39(a) session is called to order.


TC: This court-martial is convened by Court-Martial Convening
3 Order Number 6, Headquarters, Third United States Army, Coalition
4 Forces Land Component Command, dated 3 July 2003, copies of which
5 havedpeen furnished to the military judge, counsel and the accused
6 and which will be inserted at this point in the record.
7MThe charges have been properly referred to this court for
8 trial and were served on the accused on 9 November 2003.



9 The prosecution is ready to proceed with the arraignment in
10 the case of The United States versus Staff Sergeant Scott A.
11 McKenzie.


12 The trial counsel and the following persons detailed to

13 this court are present:



CAPTAE411111111111111111 DEFENSE COUNSEL. 18MThe members are absent.
20 this court and has been previously sworn.
21MTC: All members of the prosecution have been detailed to this
22 court by ColonelMAll members of the prosecution are
23 qualified and certified under Article 27(b) and sworn under Article


1 42(a) of the Uniform Code of Military Justice. No member of the

2 prosecution has acted in any manner which might tend to disqualify us

3 in this court-martial. (4)-2 )(7k-z_
4MMcKenzie, you have

MJ: Thank you. All right, Staff Serge.
5 the right to be represented by Captain She is your
6 military defense counsel, she's detailed to your case and provided to
7 you free of charge. You also have the right to request a different
8 military lawyer to represent you and if that person were reasonably
9 available then he or she would be made available to represent you

10 free of charge. If your request for another military lawyer were
11 granted, however, you would not have the opportunity to keep the
12 services of CaptainMnormally because you're only entitled
13 to one military lawyer You could ask her superiors to let you keep
14 your detailed counsel, but your request would not have to be granted.

16MIn additio , you have the right to be represented by a
17 civilian lawyer..

you are represented by a civilian lawyer, that
18 civilian lawyer w• ld have to be provided by you at no expense to the

20 CaptainMyour case to assist your civilian lawyer, or
21 you could excuse her and be represented solely by a civilian lawyer.
22MDo you uiderstand everything I've talked to you about?
23MACC: Yes, Your Honor.

MJ: Do you have any questions about your rights to counsel?

2 ACC: No Your Honor.
3 MJ: By whom do you wish to be represented?
4 5 ACC: CaptainMYour Honor. MJ: By CaptainMalone then? 0)) 2 -OA-) z
6 ACC: Yes, Your Honor.


MJ: Captain 1111411111P116 lease state your detail and 8 qualifications. 9M
DC: I was detailed to represent Sergeant McKenzie by Lieutenant 10 ColonelMIIIIIIIIIIIIIIIIIII Regional Defense Counsel Region VIII U.S. 11 Army Trial Defense Services. I am qualified and certified under 12 Article 27 Bravo and•sworn under Article 42 Alpha Uniform Code of 13 Military Justice. I have not acted in any manner which might tend to 14 disqualify me at this court-martial. 15M
MJ: Thank you. I too have been properly certified, detailed,
16 and sworn. Counsel for both sides appear to have the requisite
17 qualifications and all personnel required to be sworn have been
18 sworn. Trial counsel, please announce the general nature of the
19 charges in this case.

TC: The general nature of the charges in this case is violation
21 of Article 92 UCMJ, failure to obey a lawful order; violation of
22 Article 93 UCMJ, dereliction of duty, five Specifications; violation

4 012820
Ca (4)-2 ) (7)W-z

1 of Article 107 UCMJ, a false official statement; violation of Article
2 128 UCMJ, assault consummated by a battery, five Specifications.
3MThese charges were preferred by First Lieutenant...W.
4Mand forwarded with recommendations as to disposition by

Lieutenant ColonelMand investigated by Lieutenant

6 Colonel The general nature of the additional

7 charges, is violation of Article 134 UCMJ, obstruction of justice and
I Iv

8 violation of Article 81 UCMJ, conspiracy to obstruct justice. These
9 charges were preferred by Major1111111111.11Wd forwarded with
10 recommendations as to disposition by Lieutenant Colone


12 Your Honor, are you aware of any matter which might be a
13 ground for challenge against you?

MJ: I am not. Does either side desire to either question me or
15 challenge me?

DC: No, Your Honor.

TC: No, Your Honor.
18MMJ: Okay. Captain .

you indicated that there were five

20 correct at charge four?

DC: I have a continuation sheet three that has a fifth
22 Specification on it, Your Honor.

.5 012821
DOD 14478
1MMIT: Okay, I don't have a copy of that, would you make sure I
2 get a copy of that please?
3MTC: If I can, Your Honor, I'll approach with this.
4 r[Trial counsel hands document to reporter.]
5MMJ: Okay, grelat. That just didn't come through in the fax
6 transmission to Germany apparently. All right.
7MAll right. Sergeant McKenzie, at this general court-

martial, you have the right to be tried by a court consisting of at

9 least five officer members. They would be commissioned and or
10 warrant officers. Also, if you request it you would be tried by a
11 court consisting of at least one-third enlisted members, but none of
12 those enlisted members would come from your company and none of them
13 would be junior in rank to you.
14MDo you understand what I've said?
15MACC: Yes, Your Honor.
16MMJ: If you are tried by a court with members, the members will
17 vote by secret written ballot and two-thirds of the members must
18 agree before you could be found guilty of any offense. If you were

20 and if that sentence included confinement for more than 10 years,
21 then three-fourths would have to agree. You also have the right to
22 request a trial by military judge alone, and if approved there will
23 be no court members and the judge alone will decide whether you are

1 guilty or not guilty and if you are found guilty then the judge alone

2 will determine your sentence.

3MDo you understand the differences between trial before

4 members and trial before a military judge alone?


5 ACC: Yes, Your Honor.

6 MO": Do you understand the choices you have then?

7 ACC: Yes, Your Honor.

8 MJ: CaptainMare you prepared to enter a choice of

9 forum. today?

(6J(6) -2 je)
10 DC: Yes, Your Honor. .
11 MAI: You are? M
12 DC: Yes. Sergeant McKenzie wishes to be tried by an enlisted
13 panel.

MJ: All right. Sergeant McKenzie is that right, you want to be

15 tried by a court consisting of both enlisted soldiers and officer
16 members?

ACC: Yes, Your Honor.


18MVery well. Government, I expect then that on the dates


20 right?


21MWe will, Your Honor.

22MMJ: The accused will now be arraigned.

7 012823
1MTC: All parties to the trial have been furnished with a copy of

2 the charges. Does the accused want them read?


3 DC: The accused waives reading of the charges.

4 MJ: The reading may be omitted.


8 M012824

()0 -2ixe.) -z

1MTC: The charges are signed by First Lieutenant 1111111111111111r
2 411111ra person subject to the Code as accuser; are properly sworn to
3 before a commissioned officer of the Armed Forces authorized to
4 administer oaths; and are properly referred to this court for trial
5 by Lieutenant General David D. McKiernan, the Convening Authority.


6 MThe additional charges are signed by Major
7 mowa person subject to the Code as accuser, are properly sworn
to before a commissioned officer of the Armed Forces authorized to

9 administer oaths; and are properly referred to this court-martial--
10 to this trial-- to this court for trial by Lieutenant General David
11 D. McKiernan, the Convening Authority.
12MMJ: Thank you. Before we get to plea in this case, I will note
13 for the record that Appellate Exhibit I, you'll have to get Appellate
14 Exhibit I, I need the referral sheet for Staff Sergeant McKenzie
15 please.
16MTC: Your Honor I'm handing the Appellate Exhibit I for Staff
17 Sergeant McKenzie to tIle court reporter at this time.
18 [Trial counsel hands AE I to reporter.]


MJ: Thanks. All right, Appellate Exhibit I is entitled
21 Direction of the Convening Authority and is dated 8 November 2003.
22 It specifically states.that he has considered the recommendations of
23 the Staff Judge Advocate and that Lieutenant General David D.


1 McKiernan, the Commander of Third Army is directing that the Charges

2 and Specifications against Staff Sergeant McKenzie be referred to
3 trial by general court-martial, convening order number 6, this
4 headquarters, dated 3 July 2003. I don't normally ask the government
5 for this document but in this case I want to be satisfied that the
6 Convening Authority's desire was indeed to try both the original
7 charges and the additional charges at the same court-martial. On 8
8 November when he took that action, I note for the record that the
9 charges then pending against Staff Sergeant McKenzie included the

10 original charges preferred against him on the 13 th of July 2003 and
11 the additional charges preferred against him on the 27 th of September
12 2003 and therefore I am satisfied that it was the intent of General
13 McKiernan to try both the additional charges and the original charges
14 in the same court-martial. Although normal practice would be to
15 include that language in the referral portion of the charge sheet and
16 that language has not been specifically included.
17MDefense you're on notice that if that becomes an issue,
18 look into it and make sure that you're satisfied as am I that his
19 intcnt wa

20 referral I expect a motion for lack of jurisdiction. All right?
21MDC: Yes, Your Honor.M




MJ: All right. Staff Sergeant McKenzie, Captain
23 please rise.

1 [Accused and counsel did as directed.]

MJ: Staff Sergeant Stott A. McKenzie, how do you plead? Before
3 receiving your plea, I advise you that any motions to dismiss or
4 grant any other appropriate relief should be made at this time. Your
5 defense counsel will speak for you.


6 DC: Your Honor, Sergeant McKenzie requests to defer entry of

7 plea.

8 MJ: Very well, please be seated.
9 [The accused and counsel did as directed.]

TC: Your Honor, is there also a deferment on motions that may 11 be made at this time? 12MM.: Yes, you're deferring motions as well, right? 13 [Defense counsel nods affirmatively.] 14MMJ: That was a nod from laptain 1111111.1111P 15MAll right. Prior to trial in an 802 session held in

16 chambers, present were Captai nalliallilaaptainill. Captain
17Mnd also present were Captain represents a co-


18 accused and Major 11111111Vho represents another co-accused. The

1111.. • • • • :11
20 both motions and the trials themselves. I asked defense counsel what
21 motions they anticipated and have discerned that there are a couple
22 of issues that may need immediate litigation so that we can prepare
23 for trial. Those two issues are that the defense anticipates raising


DOD 14484
1 a motion for a new Article 32 investigation and defective referral in

2 that the convening authority ignored the recommendation of the 32 3 investigating officer to dismiss four specifications against Staff 4 Sergeant McKenzie. He apparently also recommended against 5 dismissing-- excuse me, he also recommended dismissing specifications 6 against the co-accused, Master SergeantMand Specialist 7 and those recommendations were similarly ig ored. So that' the 8 first issue. (44) -3-(--4CcJ s— 9MThe second issue is that the defense intends to serve the
10 government today with a request for investigative assistance that is,

11 someone to be detailed to the defense case to investigate and cloaked

12 with attorney-client privilege under United States v. Toledo to

13 investigate both here in Kuwait and also back in Pennsylvania for

14 the----M1

15MKentucky, ma'am----


MJ: ----Kentucky for the purpose of developing potential

17 character evidence. If the government grants that request then

18 there'll be no issue. If they don't grant that request, then the

19 defpnRp will need to litigate that as qu
20 So as to those two issues, I specifically told the defense that I

21 expect to see a motion from them not later than the 24 th of November
22 and a government response not later than the 1 St of December and we

23 will plan to litigate those on the 3rd and 4th of December here in Camp

DOD 14485
1 Doha, Kuwait. It is my understanding also that the defense intends

2 to serve an additional discovery request on the government today and
3 to the extent that any of those issues are ripe for litigation on the
4 3rd and 4th, then we'll do those as well. Again, that's kind of
5 premature at this point. I was also notified that the defense
6 anticipates raising an issue regarding multiplication of charges-- an
7 unreasonable multiplication of charges under Quiroz and or
8 multiplicity under Teeters and Blockburger. That they will also
9 raise an Article 13 motion regarding Staff Sergeant McKenzie not

10 performing his MP duties and possible derogatory comments and any
11 other issues that arise. And that the defense is looking into,
12 though they're not convinced yet whether or not there is an issue
13 with unlawful command influence. And that's all my notes show, there
14 may be other motions, at any rate. For all other motions, your
15 deadline, defense counsel, is the 10 th of December; government your
16 deadline for response is the 17 th of December.
17MGovernment informed me that they prefer to try United

bt-710 .-
18 States versus.then United States versus McKenzie second, and 19 lastly nnitp4 Rtai-ep verpupOIMMPthird anvernmoni-also
20 anticipates seventeen witnesses from the United States and the need
21 for a bifurcated trial given that the victims and possibly some of
22 the witnesses are Iraqi citizens. Is that right?

TC: That's correct, Your Honor.

13 012835
DOD 14486
1MMJ: All right; and that we will have to hear their testimony in
2 Iraq. I have set aside 12 January for an additional motions hearing
3 if we need it. I expect counsel to let me know whether or not that's
4 necessary. Primary I'm thinking that may be necessary for purposes
5 of deciding whether or not certain overseas witnesses need to be
6 brought if the defense requests and the government is inclined to
7 decline. We will for sure have a motions hearing on the 20th of
8 January, where I anticipate litigating the multiplicity motion, the
9 Article 13 motion and unlawful command influence if that pans out to

10 be true and I will of course ask you whether or not that panned out
11 to be true. We will then try United States versus McKenzie beginning
12 at 1300 on Sunday, the 25th of January. I expect and hope to at least
13 seat a panel that day and then start with witnesses Monday the 26th,
14 whether that be here in Kuwait or up north in Iraq. And government
15 you have the responsibility, obviously, of getting all the parties
16 wherever they need to be, so. All right, that's all my notes state
17 in regard to the 802, do counsel have anything to add?
18MDC: No, Your.

19MNot from the govcrnmcht; Your Honor.M


MJ: All right, Staff Sergeant McKenzie what we've done here is
21 an arraignment. It's the legal term for the first pretrial hearing
22 in any court-martial. As the accused in a court-martial you have an
23 absolute right to be present in. all sessions of your court. The one


DOD 14487
1 caveat to that is if you were to absent yourself without leave, go 2 AWOL between now and the dates that we've set either the 3 rd and 4th of 3 December, possibly the 12 th of January, certainly the 20th of January 4 and then from the 25th through the 29th which I anticipate will be the
5 actual trial dates, then the government could go ahead and elect to

6 try the case even if you weren't here. It would be a really bad

64)-z -m -z
7 situation for Captaining...he'd be defending an empty chair,

8 all right? I would enter a plea of not guilty for you and we would

9 have a panel case and we would go forth. Obviously I don't expect
10 that you're going to go AWOL and again, I tell you that like I tell
11 every soldier who I am arraigning because I want you to understand
12 that you've got a lot of work to do between now and those dates that
13 I've set with CaptainMso that you can assist her in
14 defending your case.
15MAll right?

ACC: Yes, Your Honor.


MJ: Is there anything further we can take up at this

18 arraignment?

20 some issues of requesting leave by the accused between now and the
21 time of trial and I just want to know if the court had any issues or
22 concerns about the leave and going back to the states.


DOD 14488
1MMT: I don't. That's completely a command decision. I've seen
2 commanders grant leave up to the day before trial. Captain
3 IIIIIIIIIII,nderstands Article 138 if she needs it; okay?
4MTC: Thanks ma'am.
5MNJ: That's not my issue.
6MTC: Nothing more from the government.
7MMT: Anything else? Captain
8MDC: No, Your Honor.

MJ: Very well, court is in recess.
10 [The court-martial recessed at 1051, 15 November 2003.]

DOD 14489

The proceedings were terminated on 7 January 2004 when all
3 charges and additional charges and their specifications were
4 dismissed with prejudice by the convening authority.
5 //////////////////////NOTHING FOLLOWS//////////////////////////


DOD 14490

In the case of

McKENZIE, Scott A. 11111111111lnM

Staff Sergeant

U.S. Army, HHC, 320th Military Police Battalion,
Camp Bucca, Iraq 09375

11111111111111 .-Mei -2
(Military Judge)

, 2004

I have examined the record of trial in the foregoing case.


(Defense Counsel)

M, 2004

0 1 2 8 0
DOD 14491