United States v. Rodriguez ( 2023 )

U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 38519 (f rev)
________________________
UNITED STATES
Appellee
v.
Jaime R. RODRIGUEZ
Technical Sergeant (E-6), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Upon Further Review
Decided 9 February 2023
________________________
Military Judge: Donald R. Eller, Jr. (trial); Andrew Kalavanos (rehear-
ing on sentence).
Approved sentence: Bad-conduct discharge, confinement for 6 years, for-
feiture of all pay and allowances, and reduction to E-1. Sentence ad-
judged 29 March 2017 by GCM convened at Joint Base San Antonio-
Lackland, Texas.
For Appellant: Major Matthew L. Blyth, USAF; Mark C. Bruegger, Es-
quire.
For Appellee: Lieutenant Colonel Thomas J. Alford, USAF; Lieutenant
Colonel Matthew J. Neil, USAF; Major Joshua M. Austin, USAF; Major
Cortland T. Bobcynski, USAF; Captain Olivia B. Hoff, USAF; Mary El-
len Payne, Esquire; MacCaelin A. Sedita, Legal Intern. 1
Before JOHNSON, POSCH, and RICHARDSON, Appellate Military
Judges.
Chief Judge JOHNSON delivered the opinion of the court, in which Sen-
ior Judge POSCH and Judge RICHARDSON joined.
1 Mr. Sedita was supervised by attorneys admitted to practice before the court.
United States v. Rodriguez, No. ACM 38519 (f rev)
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
JOHNSON, Chief Judge:
Appellant’s case is before this court for the sixth time. In June 2013, Ap-
pellant was found guilty in accordance with his pleas of 15 specifications of
violating a lawful general regulation; one specification of violating a lawful or-
der; one specification of making a false official statement; one specification of
consensual sodomy; two specifications of obstructing justice; and two specifica-
tions of adultery in violation of Articles 92, 107, 125, and 134, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. §§ 892, 907, 925, 934.2,3 Additionally, a gen-
eral court-martial composed of officer members convicted Appellant, contrary
to his pleas, of one specification of aggravated sexual assault by causing bodily
harm;4 one specification of abusive sexual contact by causing bodily harm;5 one
specification of nonforcible sodomy;6 one specification of aggravated sexual con-
tact by using strength; one specification of wrongful sexual contact; and one
specification of indecent exposure in violation of Articles 120 and 125, UCMJ,
10 U.S.C. §§ 920, 925. The court members sentenced Appellant to a dishonor-
able discharge, confinement for 27 years, forfeiture of all pay and allowances,
and reduction to the grade of E-1. The convening authority disapproved the
adjudged forfeitures, but otherwise approved the findings and the adjudged
sentence.
In this court’s original opinion, United States v. Rodriguez, No. ACM 38519,
2015 CCA LEXIS 143 (A.F. Ct. Crim. App. 14 Apr. 2015) (unpub. op.) (Rodri-
guez I), we remanded the record to the convening authority for new post-trial
2References to the punitive articles of the UCMJ are to the Manual for Courts-Martial,
United States (2008 ed.). Unless otherwise indicated, all other references to the UCMJ
and the Rules for Courts-Martial refer to the versions contained in the Manual for
Courts-Martial, United States (2016 ed.).
3 Appellant pleaded guilty by exception and substitution to one specification of viola-
tion of a lawful general regulation, and pleaded guilty by exception to one specification
of obstructing justice.
4 The court members acquitted Appellant of the charged greater offense of rape.
5The court members acquitted Appellant of the charged greater offense of aggravated
sexual contact.
6The court members acquitted Appellant of the charged greater offense of forcible sod-
omy.
2
United States v. Rodriguez, No. ACM 38519 (f rev)
processing and action. The convening authority again disapproved the ad-
judged forfeitures, but otherwise approved the findings and the adjudged sen-
tence.
On further review, United States v. Rodriguez, No. ACM 38519 (f rev), 2016
CCA LEXIS 416 (A.F. Ct. Crim. App. 13 Jul. 2016) (unpub. op.) (Rodriguez II),
this court set aside and dismissed five of the six litigated specifications of which
Appellant had been found guilty, leaving only the Article 120, UCMJ, offense,
of aggravated sexual contact by using strength. This court affirmed the re-
maining findings of guilty, authorized a rehearing on sentence on the affirmed
charges and specifications, and returned the record to The Judge Advocate
General (TJAG) for remand to the convening authority.
The convening authority ordered a sentencing rehearing, which took place
on 15 December 2016 and 27–29 March 2017. A general court-martial com-
posed of officer members sentenced Appellant to a dishonorable discharge, con-
finement for six years, forfeiture of all pay and allowances, and reduction to
the grade of E-1. The convening authority approved the sentence adjudged at
the rehearing.
On further review, this court reaffirmed the previously affirmed findings
and affirmed the sentence, but granted 21 days of confinement credit for illegal
pretrial confinement. United States v. Rodriguez, No. ACM 38519 (reh), 2019
CCA LEXIS 35 (A.F. Ct. Crim. App. 30 Jan. 2019) (unpub. op.) (Rodriguez III),
rev'd in part and remanded, 79 M.J. 311 (C.A.A.F. 2019) (mem.).
The United States Court of Appeals for the Armed Forces (CAAF) granted
review on the issue of whether this court had “erred by finding the military
judge’s improper propensity instruction harmless beyond a reasonable doubt.”
Rodriguez, 79 M.J. at 311; see Rodriguez II, unpub. op. at *35 (analyzing harm-
lessness of constitutional error in light of United States v. Hills, 75 M.J. 350(C.A.A.F. 2016)). The CAAF summarily reversed this court’s decision as to
“Specification 1 of Second Additional Charge I,”7 the sole remaining Article
120, UCMJ, offense of which Appellant then stood convicted, which alleged ag-
gravated sexual contact by using strength. Rodriguez, 79 M.J. at 311. The
CAAF set aside the finding of guilty as to that specification and the sentence
and affirmed the remaining findings. Id. The CAAF returned the record to
TJAG for remand to this court, which the CAAF authorized to “either dismiss
Specification 1 of Second Additional Charge I and reassess the sentence based
7Originally, the Second Additional Charge had three specifications. However, Specifi-
cations 2 and 3 were set aside and dismissed and “Specification 1” was redesignated
“Specification” on the charge sheet before the sentencing rehearing.
3
United States v. Rodriguez, No. ACM 38519 (f rev)
on the affirmed findings, or . . . order a rehearing on the affected specification
and the sentence.” Id.
On 16 January 2020, this court returned the record to TJAG for remand to
the convening authority and authorized a rehearing on the Specification of Sec-
ond Additional Charge I and on the sentence. United States v. Rodriguez, No.
ACM 38519 (rem), 2020 CCA LEXIS 16 (A.F. Ct. Crim. App. 16 Jan. 2020)
(order) (Rodriguez IV). On 1 April 2020, the convening authority initially or-
dered a rehearing. However, on 21 May 2020 the convening authority issued
an order stating that a rehearing on the specification and sentence was found
to be impracticable. The order dismissed the Specification of Second Additional
Charge I8 and reassessed the sentence to a bad-conduct discharge, confinement
for six years, forfeiture of all pay and allowances, and reduction to the grade of
E-1.
Upon further review, this court determined the convening authority had
erroneously failed to provide Appellant the opportunity to submit matters pur-
suant to Rule for Courts-Martial (R.C.M.) 1105 or to receive and respond to the
staff judge advocate’s recommendation (SJAR) pursuant to R.C.M. 1106 before
the convening authority took action by reassessing the sentence. United States
v. Rodriguez, No. ACM 38519 (f rev), 2021 CCA LEXIS 688 (A.F. Ct. Crim. App.
21 Dec. 2021) (unpub. op.) (Rodriguez V). Accordingly, this court set aside the
convening authority’s 21 May 2020 order and returned the record to TJAG for
new post-trial processing. The convening authority’s staff judge advocate (SJA)
prepared an SJAR, which was served on the Defense, and Appellant submitted
a new clemency request to the convening authority. On 31 March 2022, the
convening authority issued a new action in which she again found a sentence
rehearing was impractical; dismissed Second Additional Charge I and its Spec-
ification; and again reassessed the sentence for Appellant’s remaining convic-
tions to a bad-conduct discharge, confinement for six years, forfeiture of all pay
and allowances, and reduction to the grade of E-1.
Appellant’s record was re-docketed with this court on 1 April 2022. On 28
November 2022, Appellant submitted three assignments of error pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982): (1) whether Appellant’s
sentence is inappropriately severe; (2) whether Appellant’s registration as a
sex offender represents cruel or unusual punishment or otherwise warrants
sentence appropriateness relief; and (3) whether Appellant is entitled to relief
for “the Government’s post-trial processing errors and delays.” In addition, we
review the convening authority’s sentence reassessment as an issue distinct
8Although there were no remaining specifications under Second Additional Charge I,
the convening authority did not affirmatively dismiss that charge.
4
United States v. Rodriguez, No. ACM 38519 (f rev)
from whether the sentence is inappropriately severe. We have carefully con-
sidered issue (2) and find it warrants neither discussion nor relief. See United
States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987). With regard to the remaining
issues, for the reasons stated below we find a reduction in Appellant’s term of
confinement is appropriate, and we take corrective action in our decretal par-
agraph.
I. BACKGROUND
Between 2009 and 2011, Appellant was a married Air Force recruiter sta-
tioned in Texas. The 22 specifications of which Appellant remains convicted9
arose primarily from his behavior with 15 Air Force applicants, recruits, and
recruiter assistants (RAs)—notably his attempts to maintain personal and in-
timate relationships with them in violation of Air Education and Training
Command Instruction 36-2909, Professional and Unprofessional Relationships
(2 Mar. 2007)—and from Appellant’s actions during the investigation of his
alleged offenses, including attempting to impede the investigation, violating a
no contact order, and making a false official statement.
II. DISCUSSION
A. Sentence Severity
1. Law
We review issues of sentence appropriateness de novo. United States v.
Lane, 64 M.J. 1, 2 (C.A.A.F. 2006) (citing United States v. Cole, 31 M.J. 270,
272 (C.M.A. 1990)). We may affirm only as much of the sentence as we find
correct in law and fact and determine should be approved on the basis of the
entire record. Article 66(c), UCMJ, 10 U.S.C. § 866(c). “We assess sentence ap-
propriateness by considering the particular appellant, the nature and serious-
ness of the offense[s], the appellant’s record of service, and all matters con-
tained in the record of trial.” United States v. Sauk, 74 M.J. 594, 606 (A.F. Ct.
Crim. App. 2015) (en banc) (per curiam) (alteration in original) (citation omit-
ted). Although the Courts of Criminal Appeals (CCAs) are empowered to “do
justice[ ] with reference to some legal standard,” we are not authorized to grant
mercy. United States v. Guinn, 81 M.J. 195, 203 (C.A.A.F. 2021) (quoting
United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010)).
9The military judge found Appellant guilty of 22 specifications in accordance with his
pleas, but merged two of the specifications for sentencing purposes.
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United States v. Rodriguez, No. ACM 38519 (f rev)
2. Analysis
Appellant contends that his approved sentence is inappropriately severe.
He reiterates trial defense counsel’s argument that without the set-aside Arti-
cle 120, UCMJ, offense against JD, his remaining offenses “warranted no more
than 18 months [of] confinement.” He emphasizes that the set-aside offense
was the most serious in terms of its 20-year contribution to the maximum im-
posable punishment, and it was the only nonconsensual sexual offense for
which he was convicted. Appellant contends that because he has already
served the full six-year term of confinement, and the expiration of his term of
service in 2013 prevents the award of any significant back pay, any reduction
in his sentence to confinement would be inadequate to lower his punishment
to an appropriate level. Therefore, Appellant requests this court set aside his
bad-conduct discharge.
We are not persuaded the sentence reassessed by the convening authority
is inappropriately severe for Appellant’s offenses. Appellant extensively
abused his position as a recruiter to target young applicants, recruits, and RAs
for his own sexual purposes. Furthermore, he repeatedly attempted to thwart
the subsequent investigation into his misconduct by, inter alia, asking another
recruiter to lie to investigators on Appellant’s behalf. Without the set-aside
specification, the remaining offenses still represent a maximum imposable sen-
tence that included a dishonorable discharge and confinement for 54 years and
six months. Having given individualized consideration to Appellant, the nature
and seriousness of the offenses, Appellant’s record of service, and all other mat-
ters contained in the record of trial, we conclude the sentence approved by the
convening authority—including the bad-conduct discharge—was not inappro-
priately severe punishment as a matter of law.
B. Sentence Reassessment
Appellant has not challenged the convening authority’s reassessment of his
sentence as a distinct assignment of error. However, his arguments related to
the appropriateness of his sentence do challenge the propriety of that reassess-
ment. In addition, in conducting our review of the entire record, we review de
novo a convening authority’s reassessment of the sentence. See United States
v. Kelly, 77 M.J. 404, 406 (C.A.A.F. 2018) (recognizing a CCA has “awesome,
plenary, de novo power” to review the “entire record” (citations omitted));
United States v. Rambharose, No. ACM 38769 (f rev), 2020 CCA LEXIS 263, at
*7–11 (A.F. Ct. Crim. App. 7 Aug. 2020) (unpub. op.) (applying de novo review
to convening authority sentence reassessment). Accordingly, recognizing that
the question of sentence reassessment is governed by a particular body of law
and is distinct from sentence appropriateness more generally, we consider the
convening authority’s reassessment of the sentence.
6
United States v. Rodriguez, No. ACM 38519 (f rev)
1. Additional Background
At the March 2017 sentence rehearing, Appellant was sentenced by a panel
of officers for 22 specifications to which he pleaded guilty, as well as for the one
contested Article 120, UCMJ, specification this court had affirmed in its July
2016 opinion. This specification alleged Appellant “cause[d] [JD] to engage in
sexual contact, to wit: forcing the hand of [JD] to contact his exposed penis, by
using strength sufficient that she could not avoid or escape the sexual contact.”
The court members sentenced Appellant to a dishonorable discharge, confine-
ment for six years, forfeiture of all pay and allowances, and reduction to the
grade of E-1.
As described above, as a result of further appellate proceedings this Article
120, UCMJ, conviction was set aside. On 7 March 2022, the convening author-
ity’s SJA signed an SJAR that, inter alia, summarized the procedural history
of Appellant’s case, provided the legal standards for ordering a rehearing and
for sentence reassessment, and analyzed the factors regarding the appropri-
ateness of reassessment articulated in United States v. Winckelmann, 73 M.J.
11, 15–16 (C.A.A.F. 2013). The SJA recommended the convening authority dis-
miss the set-aside Article 120, UCMJ, specification without prejudice and re-
assess the sentence to a bad-conduct discharge, confinement for six years, for-
feiture of all pay and allowances, and reduction to the grade of E-1.10 The SJAR
was served on the Defense. On 21 March 2022, Appellant submitted a clemency
request that did not object to the SJAR, but asked the convening authority to
“consider reducing [his] Bad Conduct Discharge [sic].” The SJA’s recommenda-
tion remained unchanged in her 31 March 2022 addendum to the SJAR. The
convening authority took action on 31 March 2022 in accordance with the SJA’s
recommendations.
2. Law
Under Article 59(a), UCMJ, 10 U.S.C. § 859(a), a court-martial sentence
may not be held incorrect by virtue of legal error “unless the error materially
prejudices the substantial rights of the accused.” If a reviewing authority can
reliably conclude that an adjudged sentence would have been of at least a cer-
tain severity absent an error, “then a sentence of that severity or less will be
free of the prejudicial effects of error; and the demands of Article 59(a) will be
met.” United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986). “[I]f the error at
trial was one of constitutional magnitude, then it would seem necessary that
10The SJA also recommended the convening authority direct 21 days of illegal pretrial
confinement credit, as this court had previously ordered. See United States v. Rodri-
guez, No. ACM 38519 (f rev), 2021 CCA LEXIS 688, at *19 n.17 (A.F. Ct. Crim. App.
21 Dec. 2021) (unpub. op.) (Rodriguez V).
7
United States v. Rodriguez, No. ACM 38519 (f rev)
the [CCA] should be persuaded beyond a reasonable doubt that its reassess-
ment has rendered harmless any error affecting the sentence adjudged at
trial.” Id. at 307 (citing Chapman v. California, 386 U.S. 18 (1967)) (additional
citation omitted).
Where a CCA has approved some of the findings of guilty and authorized a
rehearing on some of the findings and the sentence, R.C.M. 1107(e)(1)(B)(iv)
(Manual for Courts-Martial, United States (2008 ed.)) authorizes the convening
authority to reassess the sentence based on the approved findings, provided
that she “determines that the accused’s sentence would have been at least of a
certain magnitude had the prejudicial error not been committed and the reas-
sessed sentence is appropriate in relation to the affirmed findings of guilty.”
Whether a sentence may be reliably reassessed is “based on the totality of
the circumstances presented.” Winckelmann, 73 M.J. at 15. The CAAF has
identified the following non-exclusive factors to “assist” in such an analysis: (1)
“Dramatic changes in the penalty landscape and exposure;” (2) “Whether an
appellant chose sentencing by members or a military judge alone;” (3)
“Whether the nature of the remaining offenses capture[s] the gravamen of
criminal conduct included within the original offenses and . . . whether signif-
icant or aggravating circumstances addressed at the court-martial remain ad-
missible and relevant to the remaining offenses;” and (4) “Whether the remain-
ing offenses are of the type that judges of the [CCAs] should have the experi-
ence and familiarity with to reliably determine what sentence would have been
imposed at trial.” Id. at 15–16 (citations omitted).
A CCA reviews a convening authority’s sentence reassessment de novo. See
United States v. Williams, 54 M.J. 380, 380–81 (C.A.A.F. 2000) (mem.); see also
Rambharose, unpub. op. at *7–11 (applying de novo rather than abuse of dis-
cretion review to convening authority sentence reassessment).
3. Analysis
The convening authority’s reassessment of Appellant’s sentence raises two
related but distinct questions: (1) whether a reassessment was appropriate;
and (2) without the now-dismissed Article 120, UCMJ, specification, whether
the resentencing court-martial would have imposed a sentence at least as se-
vere as the reassessed sentence. We consider each question in turn.
a. Was Reassessment Appropriate?
Having considered the four non-exclusive Winckelmann factors, we agree
with the SJA and convening authority that reassessment was appropriate.
With respect the penalty landscape and exposure, although the removal of
the Article 120, UCMJ, specification was a significant change, it was not “dra-
8
United States v. Rodriguez, No. ACM 38519 (f rev)
matic.” The extent of the misconduct captured in the remaining 22 specifica-
tions is still very broad. Appellant remains convicted of offenses affecting, inter
alia, 15 applicants, recruits, and RAs, including misconduct toward the alleged
victim of the dismissed Article 120, UCMJ, specification, JD. The maximum
imposable term of confinement declined from 74 years and six months to 54
years and six months—still more than nine times the adjudged confinement—
and the other elements of the maximum sentence remained unchanged.
Appellant notes that this court’s December 2021 opinion described the re-
moval of the Article 120, UCMJ, offense against JD as a “significant change to
the sentencing landscape.” Rodriguez V, unpub. op. at *18. However, the con-
text for that statement was significantly different from the current issue. This
court was not addressing the propriety of sentence reassessment, but the pro-
spect that the convening authority might be persuaded to exercise her “ex-
tremely broad discretion” to modify the sentence as a matter of clemency, given
the changed circumstances. Id. at *17. Although the opinion described the
change as “significant,” it noticeably avoided describing the change as “dra-
matic,” a term that might have evoked sentence reassessment analysis under
Winckelmann. Accordingly, we find no material tension between this court’s
prior opinion and our conclusion that the first Winckelmann factor does not
weigh against reassessment.
In Winckelmann, the CAAF explained: “[a]s a matter of logic, judges of the
[CCAs] are more likely to be certain of what a military judge would have done
as opposed to members.” 73 M.J. at 16. In this case Appellant was resentenced
by members. Accordingly, this factor weighs against reassessment.
However, the final two factors favor reassessment. We find “the remaining
offenses capture the gravamen of criminal conduct included within the original
offenses.” Id. Although Appellant’s conviction for aggravated sexual contact
against JD, a recruit, was set aside, Appellant remains convicted of sexually
oriented misconduct with JD and numerous others by exploiting his position
as a recruiter, as well as other offenses. In addition, we find the nature of Ap-
pellant’s remaining violations of Articles 92, 107, 125, and 134, UCMJ, are not
unfamiliar to the judges of this court.
Accordingly, weighing the Winckelmann factors together, recognizing that
they are “illustrative” and not “dispositive,” and considering the totality of the
circumstances, we agree with the convening authority that it is possible to re-
liably determine a sentence the court-martial would have imposed had the er-
ror at trial not occurred.
b. What Sentence Removes the Effects of the Error?
9
United States v. Rodriguez, No. ACM 38519 (f rev)
Next, we review de novo the sentence reassessed and approved by the con-
vening authority. Because the error in this case was of a constitutional dimen-
sion, see Hills, 75 M.J. at 356–58, we cannot affirm a sentence unless we are
convinced beyond a reasonable doubt that the reassessment rendered the error
harmless. Sales, 22 M.J. at 307. The convening authority reduced Appellant’s
punitive discharge from a dishonorable discharge to a bad-conduct discharge
but retained the other elements of the sentence imposed at resentencing—in-
cluding the six-year term of confinement. We are not convinced beyond a rea-
sonable doubt the court members would have adjudged a sentence at least
equally severe to that approved by the convening authority.
We acknowledge, as we described above, that Appellant remains convicted
of 22 offenses, including specifications representing Appellant’s repeated and
widespread abuse of his position as a recruiter to target young applicants and
Airmen for sexual purposes. However, several considerations lead us to con-
clude a reduction in Appellant’s term of confinement is appropriate.
The now-dismissed Article 120, UCMJ, specification was of a different char-
acter than the other offenses in that it was the only nonconsensual sexual of-
fense. In terms of its contribution to the maximum imposable term of confine-
ment—20 years of the maximum 74 years and six months—it was the most
serious offense. In addition, trial counsel repeatedly referred to Appellant’s ag-
gravated sexual contact against JD during his sentencing arguments at the
rehearing, during which he recommended the court members sentence Appel-
lant to confinement for 12 years as well as a dishonorable discharge and reduc-
tion to the grade of E-1. We further note trial defense counsel also indirectly
emphasized at the rehearing the relative significance of the Article 120, UCMJ,
offense. He described that offense as “serious” and might have “justifi[ed]
maybe even [two] years in confinement,” whereas the remaining offenses com-
bined warranted “no more than 18 months.” Trial defense counsel also con-
tended the needs of society, the Air Force, and Appellant had already “been
met” by the approximately four years of confinement Appellant had served as
of the date of his sentence rehearing.
Considering the totality of the circumstances, we conclude that without the
set-aside Article 120, UCMJ, specification, the court members would have ad-
judged a sentence no lower than a bad-conduct discharge, confinement for four
years, forfeiture of all pay and allowances, and reduction to the grade of E-1.
Moreover, we find this reassessed sentence is appropriate for the affirmed find-
ings of guilty.
We recognize Appellant has urged us to disapprove the punitive discharge
as “the only remaining remedy that offers any true relief.” Appellant has long
since completed the six-year term of confinement adjudged at his resentencing
hearing. Furthermore, he believes that because his term of service expired
10
United States v. Rodriguez, No. ACM 38519 (f rev)
around the time he entered confinement in 2013, he will not be entitled to back
pay as a result of any confinement credit from a reduction in his confinement
term. However, the reassessment has benefited Appellant by replacing his ad-
judged dishonorable discharge with a bad-conduct discharge. In addition, we
are bound to approve a sentence no greater than that which the court-martial
would have approved absent the error, regardless of how much that change
does or does not benefit Appellant. As this court has said before, “[i]n some
cases, maintaining the integrity of the military justice system enacted by Con-
gress may require this court to take action that is not requested by any party.”
United States v. Ramirez, No. ACM S32538, 2020 CCA LEXIS 20, at *17 (A.F.
Ct. Crim. App. 24 Jan. 2020) (unpub. op.) (citing United States v. Montesinos,
28 M.J. 38, 47 (C.M.A. 1989)).
C. Post-Trial Delay
1. Law
“[C]onvicted servicemembers have a due process right to timely review and
appeal of courts-martial convictions.” United States v. Moreno, 63 M.J. 129,
135 (C.A.A.F. 2006) (citations omitted). We review de novo an appellant’s enti-
tlement to relief for post-trial delay. Id. (citations omitted). In Moreno, the
CAAF established a presumption of facially unreasonable delay when the con-
vening authority does not take action on the sentence within 120 days of sen-
tencing, when the record of trial is not docketed with the CCA within 30 days
of action, or when the CCA has not rendered a decision within 18 months of
docketing. Id. at 142; cf. United States v. Livak, 80 M.J. 631, 633 (A.F. Ct. Crim.
App. 2020) (applying Moreno in the context of new post-trial procedures appli-
cable to cases referred to trial on or after 1 January 2019).
Where there is such a facially unreasonable delay, we examine the four
factors set forth in Barker v. Wingo, 407 U.S. 514, 530 (1972): “(1) the length of
the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right
to timely review and appeal; and (4) prejudice [to the appellant].” Moreno, 63
M.J. at 135 (citations omitted). The CAAF identified three types of cognizable
prejudice for purposes of an appellant’s due process right to timely post-trial
review: (1) oppressive incarceration; (2) “particularized” anxiety and concern
“that is distinguishable from the normal anxiety experienced by prisoners
awaiting an appellate decision;” and (3) impairment of the appellant’s grounds
for appeal or ability to present a defense at a rehearing. Id. at 138–40 (citations
omitted). “No single [Barker] factor is required for finding a due process viola-
tion and the absence of a given factor will not prevent such a finding.” Id. at
136 (citing Barker, 407 U.S. at 533). However, where there is no qualifying
prejudice from the delay, there is no due process violation unless the delay is
so egregious as to “adversely affect the public’s perception of the fairness and
11
United States v. Rodriguez, No. ACM 38519 (f rev)
integrity of the military justice system.” United States v. Toohey, 63 M.J. 353,
362 (C.A.A.F. 2006).
Under Article 66(c), UCMJ, 10 U.S.C. § 866(c), a CCA may grant relief for
unreasonable post-trial or appellate delay as a matter of sentence appropriate-
ness review, even in the absence of a due process violation. See United States
v. Tardif, 57 M.J. 219, 225 (C.A.A.F. 2002); see also United States v. Gay, 74
M.J. 736, 742 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016)
(enumerating factors to guide CCA analysis as to whether Tardif relief is ap-
propriate).
2. Analysis
This court’s 30 January 2019 opinion addressed whether the post-trial and
appellate delays in Appellant’s case up to that point violated his due process
rights or warranted relief as a matter of sentence appropriateness. Rodriguez
III, unpub. op. at *56–62. This court concluded no relief was warranted.
Appellant personally asserts once again that he is entitled to relief due to
the Government’s post-trial errors and delays. Appellant cites a number of ap-
pellate decisions finding post-trial errors and breaches of the Moreno stand-
ards in other cases processed by the same convening authority legal office be-
tween 2015 and 2021. Appellant notes this court has observed post-trial errors
and delays in his own case, including the error that led this court to remand
the record for a new post-trial process on 21 December 2021. Rodriguez V, un-
pub. op. at *9–19. As prejudice, Appellant asserts that despite the CAAF set-
ting aside his sole remaining Article 120, UCMJ, conviction, he “remained on
the sex offender registry or was otherwise required to perform certain tasks
required of sex offenders due to how long his appeal ha[d] taken and the ap-
parent lack of finality to his case generally.” Appellant requests this court set
aside his bad-conduct discharge as a remedy for violation of his due process
rights or, in the alternative, as sentence appropriateness relief pursuant to
Tardif.
We begin our analysis with Appellant’s assertion of prejudice due to regis-
tration and other requirements applicable to sex offenders. The CAAF set aside
Appellant’s remaining Article 120, UCMJ, offense on 7 November 2019, and it
is unclear from the record that any continuing sex offender registration re-
quirements should have or did apply to him after that point. Appellant’s clem-
ency memorandum to the convening authority dated 21 March 2022 refers to
Appellant’s experience with sex offender registration and restrictions after he
12
United States v. Rodriguez, No. ACM 38519 (f rev)
was released from confinement, but it is ambiguous as to how long such re-
quirements had been applied and whether they were ongoing.11 A declaration
Appellant submitted to this court on 11 June 2021 contains similar information
and is similarly ambiguous. The record also fails to indicate whether or not
Appellant would have continuing sex offender requirements in the jurisdiction
where he resides based on his remaining affirmed offenses. Therefore, it is un-
clear any delay associated with the remand in Rodriguez V had any effect on
Appellant’s sex offender registration status. Accordingly, we are not persuaded
Appellant has demonstrated “particularized” anxiety and concern “distinguish-
able from the normal anxiety experienced by prisoners awaiting an appellate
decision,” or other cognizable prejudice under Moreno, 63 M.J. at 138–40.
In the absence of prejudice, the standard for a violation of Appellant’s due
process rights is delay so egregious as to “adversely affect the public’s percep-
tion of the fairness and integrity of the military justice system.” Toohey, 63
M.J. at 362. Focusing on the period of time following the CAAF’s November
2019 opinion, we do not find such delays. Following this court’s January 2020
remand (Rodriguez IV), approximately four months later in May 2020 the con-
vening authority determined a sentence rehearing would be impracticable de-
spite initially ordering such a proceeding. The primary cause of delay between
May 2020 and June 2021, when Appellant filed his assignments of error, were
nine enlargements of time requested by the Defense. The Government filed its
answer a month later in July 2021, and this court issued its opinion remanding
the record for a new post-trial process on 21 December 2021 (Rodriguez V).
It is true that government error required this remand and caused addi-
tional delay. However, we do not consider the error by the SJA and convening
authority in misapprehending the requirement for a new SJAR and clemency
opportunity before reassessing the sentence to be egregious. The remand pre-
sented a relatively uncommon situation, and neither the CAAF’s opinion nor
this court’s opinion explicitly referred to such a requirement. See Rodriguez,
79 M.J. at 311; Rodriguez V, unpub. op. at *19.
We also do not find the delay from our 21 December 2021 remand to the
convening authority’s new action on 31 March 2022 to be egregious. In that
period, the SJA was able to formulate a relatively detailed recommendation for
the convening authority, serve it on the Defense, obtain the new clemency sub-
mission, and obtain the convening authority’s new action. The delay between
re-docketing with this court on 1 April 2022 and Appellant filing his new as-
signments of error on 28 November 2022 is primarily attributable to Appellant
11For example, the concluding paragraph of the memorandum refers to Appellant’s
“previous sex offender registration,” implying such requirements existed in the past.
13
United States v. Rodriguez, No. ACM 38519 (f rev)
obtaining five additional enlargements of time to file, and does not reflect ad-
versely on the Government.
Accordingly, we do not find the delays in Appellant’s case—specifically
those incurred after this court’s 30 January 2019 opinion (Rodriguez III), ei-
ther standing alone or in combination with previous delays—to be so egregious
as to undermine the perception of fairness and integrity in the military justice
system. Therefore, we find no violation of Appellant’s due process rights. We
have also considered the factors enumerated in Gay and conclude Tardif relief
for post-trial and appellate delay is not warranted.
III. CONCLUSION
We reassess the sentence to a bad-conduct discharge, confinement for four
years, forfeiture of all pay and allowances, and reduction to the grade of E-1.
The remaining findings were previously affirmed. The sentence, as reassessed,
is correct in law and fact, and no additional error materially prejudicial to the
substantial rights of Appellant occurred. Articles 59(a) and 66(c), UCMJ, 10
U.S.C. §§ 859(a), 866(c). The sentence, as reassessed, is AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
14