United States v. Souders ( 2023 )

U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 40145
________________________
UNITED STATES
Appellee
v.
Garret W. SOUDERS
Technical Sergeant (E-6), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 9 March 2023
________________________
Military Judge: Wesley A. Braun (pretrial proceeding); 1 Charles E.
Wiedie, Jr.
Sentence: Sentence adjudged on 25 March 2021 by GCM convened at
Royal Air Force Mildenhall, United Kingdom. Sentence entered by mil-
itary judge on 3 May 2021: Dishonorable discharge, confinement for 9
years, and reduction to E-1.
For Appellant: Major Stuart J. Anderson, USAF; Major Jenna M. Ar-
royo, USAF.
For Appellee: Lieutenant Colonel Thomas J. Alford, USAF; Major Jay S.
Peer, USAF; Major Brittany M. Speirs, USAF; Mary Ellen Payne, Es-
quire.
Before POSCH, RICHARDSON, and CADOTTE, Appellate Military
Judges.
Senior Judge POSCH delivered the opinion of the court, in which Judge
RICHARDSON and Judge CADOTTE joined.
________________________
1 Judge Braun was detailed to a proceeding to consider an application for a warrant
for electronic communications pursuant to Article 30a, Uniform Code of Military Jus-
tice (UCMJ), 10 U.S.C. § 830a.
United States v. Souders, No. ACM 40145
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
POSCH, Senior Judge:
A general court-martial composed of a military judge convicted Appellant
of 17 specifications in violation of three articles of the Uniform Code of Military
Justice (UCMJ). Contrary to Appellant’s pleas, the military judge convicted
Appellant of three specifications of possessing and one specification of viewing
child pornography, in violation of Article 134, UCMJ, 10 U.S.C. § 934, Manual
for Courts-Martial, United States (2012 ed.).2 The military judge also convicted
Appellant, contrary to his pleas, of ten specifications of communicating inde-
cent language and one specification of committing indecent conduct, in viola-
tion of Article 134, UCMJ, Manual for Courts-Martial, United States (2016 ed.)
(2016 MCM); and one specification each of indecent visual recording and dis-
tributing an indecent visual recording, in violation of Article 120c, UCMJ, 10
U.S.C. § 920c, 2016 MCM.3 Appellant was sentenced to a dishonorable dis-
charge, confinement for nine years, and reduction to the grade of E-1. The con-
vening authority denied Appellant’s request for deferment of automatic forfei-
tures and reduction in grade, but waived automatic forfeitures for the benefit
of his spouse and children.
Appellant raises four issues on appeal that we renumber here: (1) whether
Appellant’s sentence, in particular the adjudged confinement for nine years
and dishonorable discharge, is inappropriate; (2) whether the Government im-
properly withdrew and dismissed five specifications “to excuse its own unrea-
sonable delay in investigating this case,” and—after preferral and referral
anew—the military judge subsequently erred by denying Appellant’s motion to
dismiss those specifications4 for violation of his right to a speedy trial; (3)
whether the military judge erred in denying Appellant’s motion to suppress
allegedly coerced statements he made to special agents of the Air Force Office
of Special Investigations (AFOSI), and evidence derived therefrom; and (4)
2 Unless otherwise noted, references to the UCMJ and Rules for Courts-Martial
(R.C.M.), are to the Manual for Courts-Martial, United States (2019 ed.).
3 Appellant was found not guilty of one charge and four specifications alleging sexual
abuse of a child involving sexual contact in violation of Article 120b, UCMJ, 10 U.S.C.
§ 920b, 2016 MCM, and one charge and one specification of attempted sexual assault
of a child in violation of Article 80, UCMJ, 10 U.S.C. § 880, 2016 MCM.
4The referred specifications at issue are enumerated Specifications 1 through 4, and
15 of Charge I, in the entry of judgment.
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whether Appellant received constitutionally ineffective assistance of trial de-
fense counsel because they failed to advise him on the decision of the United
States Supreme Court in Ramos v. Louisiana, 140 S. Ct. 1390 (2020), before he
elected trial by military judge alone, and prevented him from presenting infor-
mation about mental health treatment in his unsworn statement.5 In addition
to these issues, we consider whether Appellant was denied the right to timely
appellate review.
The court evaluated issues (3) and (4) and finds neither warrants discus-
sion or relief. See United States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987). We
decline to exercise our authority to modify the sentence, and we conclude the
military judge did not err in denying Appellant’s motion to dismiss for violation
of his right to a speedy trial, as claimed. Lastly, we find Appellant has not been
prejudiced by delayed appellate review. Finding no error materially prejudicial
to a substantial right of Appellant, and concluding that the findings and sen-
tence are correct in law and fact, and should be approved, we affirm the find-
ings and sentence.
I. BACKGROUND
If there was a defining moment that led to Appellant’s court-martial and
the 17 convictions under review, it was when his wife learned of her husband’s
fantasies about the rape, torture, and killing of their four young daughters.
Appellant kept those fantasies hidden until the early morning hours on New
Year’s Day in 2019. After Appellant and his wife celebrated at home with a
bottle of champagne, Appellant went upstairs to put their youngest, 14-month-
old, daughter back to sleep. Concerned that Appellant was having some anxi-
ety from the way he had been acting recently, his wife checked his phone for
clues. She found messages Appellant exchanged on an Internet website using
a name and profile she had never seen before. Included in those messages was
a picture of their eldest daughter wearing a ballet costume and posing for the
camera.
Several messages she read, in Appellant’s words, laid bare his “darkest fan-
tasy” of “handing [his] very young daughters over to a group of men to use
however they want[ed].” Appellant imagined other men raping his daughters,
and when they did, it was “always hard and rough and violent, and sometimes
they don’t survive.” Appellant described how he derived sexual gratification
from those and other fantasies: he wrote about how he “enjoy[ed] seeing them
naked” and imagined “[i]t would be so hot” to penetrate “a kid that little!” The
recipient of those messages, to whom Appellant had earlier disclosed the ages
5 Issue (4) is raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
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of his eldest daughter and other children, asked Appellant to affirm he wanted
to have sexual intercourse with them. Using vulgar language characteristic of
these and other communications that were later discovered, Appellant replied
in the affirmative, explaining when he “fantasize[d] about f[**]king them [that]
it’s always being gentle and loving.”
After his wife confronted him, Appellant quickly left the house. His wife
gathered his phone and two laptop computers, and left with the four children.
She drove around trying to decide what to do. In time, she parked at the hos-
pital on Royal Air Force Mildenhall. As her daughters slept, she opened more
messages on Appellant’s phone and preserved some of what she saw in pictures
she took with her phone’s camera. Later in the evening, she met with special
agents of the AFOSI and gave them Appellant’s devices and the pictures she
took. Forensic analysis of those devices and other investigative steps uncovered
evidence that was admitted at Appellant’s court-martial.
The following summarizes that evidence as it bears on the charges and
specifications. Our summary reveals Appellant’s acts with only such detail as
we find necessary to lend factual support to our evaluation of Appellant’s claim
that his sentence, which included confinement for nine years and a dishonora-
ble discharge, is inappropriate and should not be approved.
A. Charge I, Violations of Article 134, UCMJ
Appellant was convicted of committing the acts charged in Specifications 1
through 15 of Charge I. Each Specification required proof beyond a reasonable
doubt that Appellant committed the charged conduct under circumstances that
were of a nature to bring discredit upon the armed forces.
1. Child Pornography Convictions, Specifications 1–4
Forensic analysis of Appellant’s devices revealed pictures and videos of
children engaging in sexual intercourse, sodomy, and bestiality. That analysis
also uncovered images depicting lascivious exhibition of the injured genitalia
of children, and evidence that Appellant viewed images of children engaging
in sexually explicit conduct. Appellant’s possession of these materials, and
viewing them on divers occasions, was the basis for four child pornography
convictions described in Specifications 1 through 4 of Charge I.
2. Indecent Language Convictions, Specifications 5–14
Appellant’s wife found only a fraction of the messages her husband sent
about their minor children. The AFOSI investigation discovered many more.
Ten convictions are founded on Appellant’s conduct in communicating indecent
language to others. As fastidiously detailed in Specifications 5 through 14 of
Charge I, evidence showed time and again Appellant indulged others with fan-
tasies he wrote about the sexual abuse of his daughters. In one illustrative
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message, he revealed the age of his eldest daughter as “still single digits.” He
shared how much he “love[d] bath time, and when she changes clothes. [He]
love[d] seeing her naked, and it turns [him] on so much. . . . [He] fantasize[d]
about sharing her with other men, watching her suck them and jerk them and
such.” Messages like this one were representative of language Appellant used
to describe the gratification he derived from fantasizing about her abuse.
In another communication, Appellant described an activity table his chil-
dren used for art projects and to play with building blocks. In Appellant’s tell-
ing, the table “would be perfect to tie a little girl to.” Referring to his eldest
child, Appellant “imagin[ed] the tears in her eyes” if he penetrated her mouth
“as deep into her throat as [he] can.” Appellant described “[s]panking her bare
[bottom] if she d[id]n’t cooperate.” Appellant described wanting to watch his
eldest daughter losing her virginity as she lay her head in his lap, and wanting
to “see [his] girl knocked up so bad” when she matured. In other messages,
Appellant wrote about wanting to watch a video of men raping his daughter as
they strangle or stab her with a knife in the stomach. Appellant asked the re-
cipient if he would keep raping her “while she slowly bleeds out?”
In other messages that Appellant sent with similar content, he expressed
wanting to watch someone rape, torture, and murder his wife and children. At
times, Appellant described how he wanted to watch their abuse and killing.
Appellant related to a recipient of one message that,
I want you to break in, tie me up, and make me watch as you
abuse, rape, and kill all of them. Even better if you bring a group
. . . Would you even do the 1[-]year[-]old? . . . I’m so hard imag-
ining the torture you would put her through . . . I can’t wait to
see the first time you drive your c[**]k into [Appellant’s daugh-
ter] . . . She’d scream so hard when that happened, and the blood
would pour out of her bruised and swollen c[**]t.
As shown, Appellant’s one-year-old daughter was not spared from being an
object of his indecent language. Appellant explained to a recipient of one mes-
sage that “[n]one of [his daughters] are too young,” and Appellant would “let
[him] have all of them.” Appellant continued, revealing his fantasy about what
the recipient would do: Appellant imagined “holding the baby down” as the
recipient raped her “as she screams, forcing [his] way past any resistance [he]
encounter[ed] in her little body.”
The fantasies Appellant communicated using indecent language were not
limited to his children. Appellant told a recipient of one message how he
wanted this person to physically abuse and rape his wife while his daughters
watched, “knowing” in their minds “that is going to happen to them.” Referring
to his eldest daughter, Appellant expressed a desire for the recipient to then
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“forcefully take her virginity.”
3. Indecent Conduct Conviction, Specification 15
Evidence at trial showed Appellant sometimes included family pictures of
his daughters in messages he sent that communicated indecent language about
them. In those messages, Appellant verbalized what he portrayed as thoughts
and desires of their sexual abuse. Appellant’s transmission of pictures while
describing that abuse was the basis for his conviction for engaging in indecent
conduct, on divers occasions, as detailed in Specification 15 of Charge I.
Appellant prefaced a group of messages he sent with the proviso that “[he]
love[d his] daughters, so this is only fantasy that [he]’d never act on.” Appellant
proceeded to describe to the recipient how he “would love to watch you enjoying
yourself with my girl,” and sent a picture of his eldest daughter on a trampo-
line. A moment later, the recipient replied “she has cute little legs and butt.”
Appellant remarked that he would “let you do whatever you want, as long as
[he] can watch.”
In a second group of messages, Appellant sent a picture of his eldest daugh-
ter wearing a dance outfit. Appellant told the recipient he would “tell her to
just take her top off” and “to do whatever you tell her to.” The recipient asked
Appellant to take her picture with her clothes off, to which Appellant replied
he “can[’]t get any sexy pics for a couple weeks” because Appellant was travel-
ing for work and away from home. Later in the same conversation Appellant
said he would “love for you to see her naked body and little p[***]y,” and asked,
“[W]ould you try to f[**]k a girl that small?” When the recipient responded that
he was “sure it is going to be sweet tasting,” Appellant replied, “I’m sure it will
taste delightful! I’ll get you a pic when I can.”
In a third group of messages, Appellant included a picture of his eldest
daughter wearing a fairy costume and showing her midriff. Appellant ex-
plained his “wife sent [him] this photo.” He related how he “was instantly
turned on by the crop-top showing her tummy.” In the same conversation with
the recipient of these messages, Appellant related how he “love[d] the idea of
you seeing her naked body” and would “love to let you use her however you
wanted.” Appellant expressed he would “love to see your c[*]m on that tummy
. . . [o]r dribbling down her chin out of her mouth.”
B. Charge II, Violations of Article 120c, UCMJ.
Appellant was convicted of one specification each of indecent visual record-
ing and distributing an indecent visual recording. The evidence supporting
both convictions pertains to the effort Appellant made to prepare and send las-
civious communications over the Internet.
The conduct at issue followed a conversation about the rape and torture of
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Appellant’s eldest daughter. As relevant to this appeal, the exchange began
with the person asking Appellant, “Let me see my victim.” In response, Appel-
lant sent a picture of his eldest daughter wearing a ballet dress. Her facial
features are plainly discernable. The recipient manifested liking the picture
and asked Appellant if he had “[a]ny more [pictures] of her that show a bit
more skin.” Appellant replied in the negative, but offered he would “try to take
some after [his] wife goes to sleep,” adding that “[his] daughter usually sleeps
in just panties.”
In time, the person inquired if Appellant’s wife was asleep and if he had
“done anything with any of them?” Appellant replied he was in the room with
his daughter. Appellant wrote, “I’m trying to not wake her up. I’ve never done
anything with them before. Just fantasized.” A short time later, Appellant sent
a picture of a young girl lying in bed. The picture shows a young child’s body
turned away from the camera, underwear pulled down, exposing the child’s
buttocks. At trial, Appellant’s wife testified she recognized the child as her eld-
est daughter. Forensic analysis of Appellant’s phone showed Appellant ac-
cessed the camera application a few minutes into the conversation with the
recipient of the messages. The recipient replied, “Nice. An ass [l]ike hers just
begs to be violated.” Appellant responded, “I want to see her scream as you
shove your c[**]k in her ass. Then she’d shut up as you pull a rope tight around
her throat.”
Appellant’s conduct in taking and sending the picture was the basis for two
convictions detailed in Specifications 1 and 2 of Charge II.
II. DISCUSSION
A. Sentence Review
Often in our opinions, we resolve an appellant’s challenges to the findings
of guilty before determining if the sentence, as entered, may be inappropriate.
In the instant case, we take a different approach. Having summarized the ev-
idence supporting Appellant’s convictions, we find it suitable to begin our re-
view with Appellant’s claim that his sentence is inappropriate under the stand-
ard applicable to that claim. Our review necessarily relies on evidence support-
ing the convictions in addition to other considerations.
In the analysis that follows, we consider the military judge’s determination
of the maximum punishment, the evidence relevant to Appellant’s claim, the
adjudged sentence, and the legal standard of review. We conclude that the sen-
tence is not inappropriate.
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1. Additional Background
a. Maximum Punishment Determination
Before findings were announced, the military judge ruled on a defense mo-
tion that urged the military judge to find the 15 specifications under Charge I
were an unreasonable multiplication of charges. After the close of evidence, the
miliary judge ruled on the motion.
As to Specifications 1 through 4, the military judge found if Appellant were
convicted of more than one of the four child pornography offenses in those Spec-
ifications then they would constitute an unreasonable multiplication of
charges; the military judge ruled any confinement that might be imposed for
those convictions would run concurrently within that group of offenses. Be-
cause Appellant was convicted of all four specifications, the military judge de-
termined the maximum confinement for those four specifications was ten years
as a result of concurrent sentencing.
For the remaining specifications under Charge I, the military judge stated
“[t]o the extent there [was] an unreasonable multiplication of charges,” if con-
victed “the court will impose concurrent sentences to confinement as a rem-
edy”—that is concurrent among Specifications 5 through 15 (emphasis added).6
Because Appellant was convicted of ten indecent language offenses (Specifica-
tions 5 through 14), and of indecent conduct (Specification 15), the maximum
confinement for those 11 offenses was the five-year maximum that could be
imposed for the indecent conduct conviction.
In response to Appellant’s claim that the sentence is inappropriate, the
Government does not challenge the military judge’s ruling. As a result, we need
not decide whether the court can evaluate that ruling for error as it bears on
Appellant’s challenge to the sentence. Based on that ruling, the maximum con-
finement Appellant faced for the 15 findings of guilty under Charge I was 10
years for Specifications 1 through 4, and 5 years for Specifications 5 through
15, or 15 years in total. Altogether, the military judge determined Appellant
faced a maximum punishment of 15 years’ confinement for Charge I and 12
6 The military judge assumed without deciding that Specifications 5 through 14 were
an unreasonable multiplication of charges. In the analysis that follows, we refer to that
assumption as a ruling. Without objection, the military judge announced concurrent
terms for these ten offenses before announcement of findings and the sentencing pro-
ceedings that follow a finding of guilty. Appellant claims no prejudice from this ruling
and we find no prejudice to Appellant.
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United States v. Souders, No. ACM 40145
years’ confinement for Charge II,7 for a combined 27 years’ confinement. That
was in addition to a sentence that could include, inter alia, a dishonorable dis-
charge, reduction to the grade of E-1, and forfeitures of all pay and allowances.
b. Evidence
Evidence showed Appellant sent 28 pictures of his children in 17 different
conversations relating to their abuse. Appellant also shared close-up pictures
of his wife in an intimate setting. Her face is well lit and features discernable.8
Although the pictures do not reveal her private areas, in some pictures she
appears to be nude or partially nude, and in others she is wearing lingerie.
Appellant identified the woman in those pictures as his wife in the messages
he sent to others.
In sentencing, Appellant’s wife testified about the immediate and direct
impact of Appellant’s conduct on her children. Over defense objection, she also
testified about the impact on her. The military judge ruled her testimony was
a proper matter in aggravation. She described how after the discovery of Ap-
pellant’s messages she was preoccupied with feelings of “sheer terror and how
to safely get [her]self and the girls away” from Appellant. In her telling, she
had just read conversations where [her] husband was discussing
possibly having people violently rape and murder [her] children
and [her]self. [She] didn’t know who [she] was dealing with. He
had taken off, but [she] was afraid that he would come back and
kill [her and her children]. [She] didn’t want to be in the house
when he finally returned.
Appellant’s wife described “nightmares about people breaking into the
house,” and “about somebody coming and snatching the children.” She testified
about the impact on her children of being abruptly separated from their father
and how she struggled to tell them why they could not see their father any-
more. She described difficulty determining an appropriate age for telling her
children what their father had done.
In an unsworn statement, Appellant’s wife explained how her daughters
essentially had “lost their dad,” but they remained unaware of what he had
7 The maximum sentence to confinement for the indecent visual recording (Specifica-
tion 1) and distributing an indecent visual recording (Specification 2) offenses under
Charge II was five and seven years, respectively.
8 As far as this court’s findings regarding pictures of Appellant’s wife and other find-
ings of fact as they bear on victim impact, we note that “[u]nlike most intermediate
appellate courts and [the United States Court of Appeals for the Armed Forces], [a
Service] Court of Criminal Appeals has factfinding powers.” United States v. Cendejas,
62 M.J. 334, 342 (C.A.A.F. 2006) (citing Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2000)).
9
United States v. Souders, No. ACM 40145
done: “They know something is very wrong, but not what. They have felt loss
and grief as if he died. The girls have mourned the loss of the father they
thought they knew.” In that same statement she described the fear she felt of
being discovered by strangers. She explained,
Because [Appellant] shared images of [her] during some of those
same conversations with individuals who discussed raping and
murdering [her] and the girls, [she] live[s] in fear [they] will be
found. When someone watches the girls while [they] are in pub-
lic, [she] no longer assume[s] they are just amused or impressed
by their good behavior. [She] ha[s] to have a healthy awareness
that a person watching could be someone who has seen [their]
faces because of [Appellant]’s actions. [She] ha[s] learned there
are monsters, even amongst those who you think you know best.
The people [Appellant] had those conversations with could exist
from a small town to a big city half way around the world. [They]
will never truly be free and safe from the choices [Appellant]
made.
Appellant’s sentencing case included pictures, and coins and ribbons he re-
ceived. In an unsworn statement, Appellant explained his family life as a youth
and details of his 15 years’ service in the Air Force, including that he garnered
recognition as a distinguished graduate from the Network Intelligence Analyst
Apprentice Course. Appellant apologized to his wife and children.
c. Sentencing
When announcing sentence, the military judge ordered the confinement im-
posed for all 15 convictions under Charge I to run concurrently. Contrary to
trial counsel’s recommendation in sentencing argument, the concurrent sen-
tence included the confinement meted out as punishment for the four child
pornography convictions:9 the military judge sentenced Appellant to two years’
confinement for each of Specifications 1 through 4 of Charge I, six months’ con-
finement for each of Specifications 5 through 14 of Charge I, and four years’
confinement for Specification 15 of Charge I. All told, Appellant received a four-
year sentence to confinement for the 15 convictions under Charge I.
9 Trial counsel argued, unsuccessfully, “[t]here’s no basis in law or fact for the child
pornography specifications to run concurrently with [Appellant’s] indecent communi-
cations and indecent conduct,” asserting the former “need to run consecutively” with
the latter. The Defense implored the military judge to “look at the principles of sen-
tencing to determine whether the[ ] [specifications] should run concurrently or consec-
utively.” The Defense argued the “deterrent effect that [the investigation] already has
taken on [Appellant] these past 27 months.”
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The military judge sentenced Appellant to two years’ confinement for Spec-
ification 1 of Charge II, and five years’ confinement for Specification 2 of
Charge II. When announcing sentence, the miliary judge ordered the confine-
ment imposed for both convictions to run concurrently. Accordingly, Appellant
received a five-year sentence to confinement for the two convictions under
Charge II.
When announcing sentence, the military judge ordered the four years’ con-
finement for the 15 Charge I convictions to be served consecutively with the
five years’ confinement for the Charge II convictions, resulting in nine years’
total confinement. As noted earlier, the military judge also imposed a dishon-
orable discharge and reduction to the grade of E-1. Appellant challenges this
sentence as inappropriate on appeal.
2. Law
A Court of Criminal Appeals (CCA) may affirm “only . . . the sentence or
such part or amount of the sentence” as it “finds correct in law and fact and
determines, on the basis of the entire record, should be approved.” Article
66(d)(1), UCMJ, 10 U.S.C. § 866(d)(1). The distinction the court applies in ex-
ercising this responsibility is at least as old as the UCMJ. See, e.g., United
States v. Findley, 1 C.M.R. 731, 733 (A.F.B.R. 1951) (evaluating whether “a
sentence is legally permissible . . . is aside from and not to be confused with
the appropriateness of the sentence”).
A CCA reviews de novo the question of the propriety of all or part of a sen-
tence. See United States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006) (citation omitted).
We consider “the particular appellant, the nature and seriousness of the of-
fense[s], the appellant’s record of service, and all matters contained in the rec-
ord of trial.” United States v. Sauk, 74 M.J. 594, 606 (A.F. Ct. Crim. App. 2015)
(en banc) (per curiam) (alteration in original) (quoting United States v. Ander-
son, 67 M.J. 703, 705 (A.F. Ct. Crim. App. 2009) (per curiam)); see also United
States v. Williams, 35 M.J. 812, 819 (A.F.C.M.R. 1992) (stating “we have no
difficulty concluding that the sentence is not inappropriate” (emphasis added)).
Although we are empowered to “do justice” in reference to a legal standard, we
have no discretion to grant mercy. United States v. Nerad, 69 M.J. 138, 146
(C.A.A.F. 2010) (citation omitted).
In Sauk, we maintained the custom at least since the Findley opinion of
referring to the sentence that should be approved under Article 66, UCMJ, 10
U.S.C. § 866, as an “appropriateness” review. 74 M.J. at 606; see, e.g., Ander-
son, 67 M.J. at 705. Recent cases continue this practice. See, e.g., United States
v. Knarr, 80 M.J. 522, 538 (A.F. Ct. Crim. App. 2020); United States v. Hamil-
ton, 77 M.J. 579, 587 (A.F. Ct. Crim. App. 2017) (en banc), aff’d, 78 M.J. 335(C.A.A.F. 2019). While the term is established, it is a misnomer in that finding
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United States v. Souders, No. ACM 40145
a sentence “appropriate” is not to say a more severe punishment would have
been inappropriate if adjudged. As noted by the predecessor to this court, sen-
tence appropriateness authority may be exercised downward, but never up-
ward. United States v. Daniels, 3 M.J. 982, 985 (A.F.C.M.R. 1977) (noting the
“responsibility to determine an appropriate sentence” includes “the authority
to change the form of penalty so long as the severity of the sentence is not
increased” (citations omitted)). Put simply, our finding a sentence appropriate
manifests a de novo determination that the sentence should be approved on
the basis of the standard articulated in these and other cases that interpret
our Article 66, UCMJ, responsibility.
3. Analysis
Appellant argues his sentence, which includes nine years’ confinement and
a dishonorable discharge, is inappropriate and should not be affirmed. The fo-
cus of two contentions in his assignment of error is the length of two segmented
sentences to confinement. We examine both contentions, and a third that urges
the court to set aside the dishonorable discharge. In the analysis that follows
we conclude Appellant’s sentence is not inappropriate.
a. Four Years’ Confinement for Specification 15 of Charge I
Appellant first contends that the portion of his sentence that includes four
years’ confinement for Specification 15 of Charge I is inappropriate in relation
to the two years’ confinement imposed for the ten convictions for communi-
cating indecent language in Specifications 5 through 14 of that charge. Appel-
lant argues it is unjust he received an additional two years’ confinement for
his indecent conduct in transmitting what amount to ordinary, family pictures
of his minor daughters even though they accompanied messages that contained
indecent language about their rape, torture, and killing. Appellant complains
the military judge doubled his punishment despite the fact that the pictures
he sent were not indecent, their transmission “was only contextually criminal,”
and that Specifications 5 through 14, which capture “the more serious con-
duct,” “served as that context.”
Before proceeding with an analysis of these contentions, two points require
mention. First, to the extent that an appellant challenges the weight given to
considerations that might have shaped any part of the sentence, our determi-
nation of the sentence that should be approved is de novo, Lane, 64 M.J. at 2,
not deferential. The second point is related to the first: we are unaware of any
authority that would require this court to use a segmented term of confinement
identified by an appellant as a benchmark to evaluate “the sentence or such
part or amount of the sentence” that “should be approved” under Article 66,
UCMJ. Even when this court has compared sentences between appellants, we
have been mindful that sentence comparison is only one aspect of our Article
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United States v. Souders, No. ACM 40145
66, UCMJ, review. Anderson, 67 M.J. at 707–08 (A.F. Ct. Crim. App. 2009); see
also United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982) (observing,
“However proper it may be for . . . the Courts of Military Review to consider
sentence comparison as an aspect of sentence appropriateness, it is only one of
many aspects of that consideration”).
Turning to the sentence under review, we are not persuaded, even in con-
text, that four years’ confinement is inappropriate for the acts of transmitting
the pictures at issue while Appellant was engaged in conversations that in-
cluded indecent language about his children. In a relevant portion of the Gov-
ernment’s findings argument, trial counsel explained that Appellant’s conduct
in sending the pictures operated to “further encourage” recipients of his mes-
sages to “revel in the sexual exploitation, sexual abuse[,] and even rape and
murder of his children.”10
This sentiment is amply supported by the evidence. Although pictures Ap-
pellant sent to others were not indecent on their own, they made his family
easily recognizable to strangers who, as trial counsel argued, reveled in Appel-
lant’s fantasies of their sexual exploitation, torture, and murder. The legal
guardian of those children—Appellant’s wife—feared those pictures would
make it feasible, if not desirable, for them to be harmed by someone who rec-
ognized their faces. Appellant’s contextual criminality argument is further di-
minished by the fact that the military judge ordered the confinement imposed
for all Charge I convictions to run concurrently—including the four child por-
nography convictions. Put simply, there is no better indication that context
factored into the sentence that was adjudged than the sentence itself.
For these reasons we are unconvinced Appellant’s sentence is inappropri-
ate on the basis that his culpability “doubled when he included these pictures,”
as urged by Appellant on appeal. Appellant’s conduct in sending pictures of his
children merited punishment. We are satisfied the confinement adjudged for
Specification 15 of Charge I—and running concurrently with the other 14 con-
victions under Charge I, including Specifications 5 through 14—is not inappro-
priate.
b. Five Years’ Confinement for Specification 2 of Charge II
Appellant also urges the court to find his sentence to five years’ confine-
ment for Specification 2 of Charge II is inappropriate. Appellant explains his
10In argument, trial counsel is permitted to refer to the need for the sentence to: “(A)
reflect the seriousness of the offense; (B) promote respect for the law; (C) provide just
punishment for the offense; (D) promote adequate deterrence of misconduct; (E) protect
others from further crimes by the accused; [and] (F) rehabilitate the accused . . . .”
R.C.M. 1002(f)(3); see also R.C.M. 1001(h).
13
United States v. Souders, No. ACM 40145
conduct—distributing a recording of the private area of his eldest daughter—
occurred in a short time and during a “single course of events.” Appellant fur-
ther explains this conduct was discovered by AFOSI agents, not by his wife,
and thus it did not contribute to the victim impact she described upon discov-
ering Appellant communicated indecent language about their children.
We are not persuaded by these arguments. Before sending the picture at
issue, Appellant first sent a picture of their eldest daughter in which her face
is plainly discernable. The picture Appellant was convicted of distributing de-
picts the exposed buttocks of her sleeping. Appellant took this picture and then
sent it at the request of a recipient of his messages. Appellant’s wife was una-
ware of the conduct underlying this conviction when she left the residence with
their children, but the offense is aggravating in a different way. Appellant sent
the picture at the behest of someone with whom he reveled in indecent com-
munications about his daughter’s sexual exploitation and torture.
Appellant argues he “was never convicted of acting on these fantasies.” But,
in one significant way, he was and he did. To be sure, the evidence did not show
Appellant engaged in sexual or physical abuse of his children in line with the
indecent language he communicated, but he acted nonetheless by responding
to the bidding of a stranger who asked to see his “victim.” Appellant’s indecent
conduct in sending the picture validated his wife’s concern that her daughters’
wellbeing could not be assured when they are alone with their father or around
“someone who has seen [their] faces because of [Appellant]’s actions,” as she
explained in her unsworn statement. Five years’ confinement for this specifi-
cation is not inappropriate either by itself, or—as found by the military judge—
when served concurrently with the two years’ confinement adjudged for Appel-
lant taking the picture as convicted in Specification 1 of Charge II.
c. Dishonorable Discharge
Appellant urges the court to find that his conduct, taken together, does not
warrant a dishonorable discharge. In support of this contention, Appellant re-
lies on points he makes in his other contentions and argues the logic of what
his case is not. Appellant argues he “has not been convicted of the actual or
attempted realization” of his fantasies. His conduct “did not involve the crea-
tion of any illicit or improper images.” He argues the impact to his wife was
the shock of the fantasies themselves and not his acting on them.
We are not persuaded sentence relief is warranted on this claimed basis.
Appellant is correct that he could have attempted to act, or acted, on his fan-
tasies of rape, torture, and killing of those closest to him by following through
with those fantasies. That no evidence showed he did any of these things, how-
ever, is insufficient to find inappropriate a sentence that includes a dishonor-
able discharge. The attempt to distinguish between what Appellant did and
14
United States v. Souders, No. ACM 40145
did not do is a strawman that deflects from actual consequences of Appellant’s
acts. Evidence that Appellant’s family was not physically harmed belies con-
vincing evidence of psychological harm—mental and emotional—that was a
predictable result of many of the acts underlying his convictions. Victim impact
is among the considerations in our sentence review. See United States v. Proc-
tor, 34 M.J. 549, 559 (A.F.C.M.R. 1992) (evaluating “the impact upon the many
victims” among other considerations); see also R.C.M. 1002(f)(2)(A) (recogniz-
ing “impact of the offense on . . . [the] psychological well-being of any victim”
as a consideration (emphasis added)). Those acts and their natural conse-
quence warrant a dishonorable discharge and we find it is not an inappropriate
penalty.
d. Conclusion
In our sentence review, we have evaluated, moreover, the assertion on ap-
peal that the sentence “reflects the military judge’s emotional reaction,” spe-
cifically “to the ideas [Appellant] communicated, and not an impartial, de-
tached assessment of the true severity of the acts themselves.” Appellant ar-
gues the sentence was not a “reasoned assessment of the true severity of the
offenses.” We find the sentencing authority was neither biased nor irrational
in sentencing Appellant. The military judge’s announcement of concurrent seg-
mented sentences for the four child pornography offenses is but one reason why
we reject such claims. Appellant argues, also, that the “dishonorable discharge
is unduly severe and not supported by the evidence.” (Emphasis added). For the
reasons given, we find no basis for the claim that the dishonorable discharge
is incorrect in law because it is unduly severe, or incorrect in fact on the
claimed basis that it is unsupported by evidence.
In conducting our sentence review, we note that “[s]entence appropriate-
ness involves the judicial function of assuring that justice is done” and that an
appellant “gets the punishment he deserves.” United States v. Healy, 26 M.J.
394, 395 (C.M.A. 1988). The court considered the particular circumstances of
Appellant’s case, including his convictions for possessing and viewing child
pornography, communicating indecent language, committing indecent con-
duct, indecent visual recording, and distributing an indecent visual recording.
We have considered the extenuation and mitigation evidence along with the
impact of Appellant’s conduct on his family.
We have given individualized consideration to Appellant, the nature and
seriousness of the convictions, Appellant’s record of service, and all other mat-
ters contained in the record. For the aforementioned reasons, we find the sen-
tence is correct in law and fact, not inappropriate, and should be approved.
15
United States v. Souders, No. ACM 40145
B. Speedy Trial
Before trial, Appellant filed a motion to dismiss, with prejudice, Specifica-
tions 1 through 4, and 15 of Charge I. In that motion Appellant alleged the
Government violated his speedy trial rights under Rule for Courts-Martial
(R.C.M.) 707 and the Sixth Amendment11 to the United States Constitution.
Appellant asserted his right to a speedy trial in that motion. Appellant objected
that the five specifications as originally preferred and referred were improp-
erly withdrawn and dismissed before each was preferred and referred anew.
The military judge held an Article 39(a), UCMJ, 10 U.S.C. § 839(a), session
to decide Appellant’s motion. The military judge denied the motion, ruling that
Appellant was not denied the right to a speedy trial. Appellant challenges that
ruling on appeal.
1. Additional Background
The original charge and specifications were preferred on 14 January 2020,
and referred to trial by general court-martial on 7 April 2020. After preferral,
AFOSI agents obtained search warrants for evidence of electronically stored
communications from two Internet websites. In March and April 2020, AFOSI
agents received evidence responsive to those warrants. That evidence revealed
possible additional misconduct by Appellant that was not embraced within the
charge and specifications.
Based on the newly discovered evidence, on 28 April 2020, the special court-
martial convening authority (SPCMCA) requested the general court-martial
convening authority (GCMCA) withdraw and dismiss the charge and the spec-
ifications. On 7 May 2020, the staff judge advocate (SJA) for the GCMCA
agreed with the SPCMCA. The SJA stated that consolidating new charges with
the existing specifications was “impossible” to complete with only five days re-
maining on the 120-day speedy trial clock. The SJA explained that the last day
Appellant could be arraigned before the clock expired was 13 May 2020, which
was insufficient time to prefer additional charges, complete a preliminary
hearing, and accomplish referral. The SJA advised against proceeding to trial
on the existing specifications, then convening a second court-martial to try Ap-
pellant for UCMJ violations based on the newly discovered evidence.
On 8 May 2020, the GCMCA followed the SJA’s advice and withdrew and
dismissed the original charge and specifications without prejudice. He stated,
I take this action due to discovery of new evidence that indicates
additional misconduct by [Appellant]. In anticipation this new
evidence will cause [Appellant] to become the subject of newly
11 U.S. CONST. amend. VI.
16
United States v. Souders, No. ACM 40145
preferred charges, which would warrant referral to a court-mar-
tial, I desire that [Appellant] be tried on all charged offenses at
a single trial to best serve the interests of justice and promote
judicial economy.
On 12 May 2020, Appellant’s squadron commander preferred the charges
and specifications that were referred on 5 August 2020. These are the charges
and specifications under review. Specifications 1 through 4 of Charge I are sub-
stantially the same as the specifications that were initially referred, and sub-
sequently withdrawn and dismissed by the GCMCA.12 Specification 15 of
Charge I differs somewhat from the original specification: the more significant
changes included a different and expanded charging window, and the charged
act of transmitting a digital image of a minor was alleged on divers occasions.13
2. Ruling
As found by the military judge, AFOSI agents reviewed the information
they received in March and April 2020 that was responsive to search warrants
for two Internet websites. Evidence they received in March 2020 revealed that
Appellant “engaged in . . . conversations about sexual abuse of [his] children
with more than ten different user accounts.” That information “included evi-
dence of previously unknown instances” when Appellant “allegedly sent pic-
tures of his children while discussing the sexual abuse of his children.” As fur-
ther found by the military judge, AFOSI agents received information in April
2020 that Appellant “engaged in a conversation about sexual abuse of his chil-
dren, [and] sent a picture of his youngest child lying in bed.”
Examining this additional evidence and the investigative steps the AFOSI
agents took in the context of the entire case, the military judge found the
GCMCA “acted within his discretion to withdraw and dismiss the original
charge” and the underlying specifications. On this point, the military judge
made four essential findings. First, that “[t]he Government has an obligation
and the right to thoroughly investigative a case before proceeding to trial.” Sec-
ond, the “case involve[d] a great deal of digital evidence, extensive investiga-
tion and numerous searches pursuant to Article 30a[, UCMJ,] proceedings.”
12Specifications 1–4 of Charge I added “United States Air Force” to the statement of
personal jurisdiction.
13 Specification 15 of Charge I added “United States Air Force” to the statement of
personal jurisdiction; it expanded the location of the offense from the “United King-
dom” to the “continent of Europe;” it changed the charged timeframe from between “on
or about 1 October 2018 and on or about 25 January 2019” to “on or about 19 June
2018 and on or about 31 December 2018;” it added the word, “wrongfully;” it changed
the charged act from “transmitting via communication technology a digital image” to
“transmit a digital image;” and it substituted “a minor” for the victim’s name.
17
United States v. Souders, No. ACM 40145
Third, “[t]he searches in this case produced additional evidence that justified
additional charges and specifications.” And fourth, the military judge found
the convening authority’s intent for Appellant to be tried on all charged of-
fenses at a single trial, so as “to best serve the interests of justice and promote
judicial economy,” was in harmony with the intent of R.C.M. 601(e)(2).
The military judge found dismissal of the original charge and its specifica-
tions was not “a subterfuge to avoid the R.C.M. 707 speedy trial clock,” as
claimed. He found that assertion was “not supported by the evidence or any
reasonable inference.”14 He concluded that referral took place “well before the
120-day mark,” as did the SPCMCA’s timely recommendation to withdraw the
original specifications. The military judge found this was “not a case where the
Government was about to violate the R.C.M. [707] speedy trial clock and [then]
took a drastic action to ‘restart’ the clock.” The military judge explained he
would reach the same conclusion even if he assumed that the SPCMCA erred
in excluding 60 days from speedy trial consideration.15
The miliary judge considered and rejected Appellant’s contention that the
Government could have arraigned Appellant on the original charge and speci-
fications before the convening authority withdrew and dismissed the charge.
The military judge found “that would only have served to delay the proceedings
further” and “[s]uch a delay is inapposite to the principle [sic] reason for the
R.C.M. 707 speedy trial clock, which is to prevent an accused presently under
court-martial charges from unreasonable delays.” The military judge similarly
rejected the argument that the new charges should simply have been joined to
the old. On this point the military judge concluded that “[t]he Government is
not required to arraign an accused simply to permit him to object to joinder of
new offenses and then take action to withdraw and dismiss the charges and
specifications and start over.”
Lastly, the military judge found no violation of Appellant’s Sixth Amend-
ment right to a speedy trial. Applying the factors in Barker v. Wingo, 407 U.S.
514 (1972), he found the length of the delay was not unreasonable because of
the complexity of the AFOSI investigation. He found that the desire to try all
charges together weighed against finding a speedy trial violation. Appellant’s
demand for a speedy trial weighed in his favor, but the military judge found he
was not prejudiced by the delay. In that regard, the military judge found “there
[wa]s no evidence that the amount or level of anxiety suffered by [Appel-
lant] . . . is distinguishable from normal anxiety experience[d] by an accused
14 The military judge similarly found “[t]here is no evidence that the Government
feared a violation of R.C.M. 707” and then “took action to circumvent that right.”
15The SPCMCA excluded the time between 27 March 2020 and 25 May 2020, over
defense objection, due to the COVID-19 pandemic.
18
United States v. Souders, No. ACM 40145
facing court[ ]-martial.” The military judge further found “no evidence that wit-
nesses’ memories have faded [or] evidence has been lost.”
3. Law and Analysis
On appeal, Appellant renews the contention in his motion that the conven-
ing authority’s withdrawal and dismissal “was only a subterfuge to violate [his]
speedy trial rights.” Appellant claims the Government withdrew the five spec-
ifications to excuse unreasonable delay in investigating the case, and “to inter-
fere with [Appellant]’s right to a speedy trial under the Sixth Amendment and
R.C.M. 707.” In his reply brief, Appellant maintains “[t]here is no question of
a ‘real’ purpose hidden behind a ‘subterfuge’ purpose” of judicial economy and
efficiency to try all known charges together. According to Appellant, because
the withdrawal and dismissal were accomplished for an improper reason, the
speedy trial clock on these specifications should not have been restarted: it ran
from the date of preferral, 14 January 2020, to arraignment on 28 October
2020, or 228 days. According to Appellant, the specifications at issue should be
dismissed with prejudice under the Sixth Amendment because of his impaired
ability to mount a defense as the memories of witnesses deteriorated from Jan-
uary 2019 to March 2021, and the anxiety he experienced during the delayed
prosecution of his case.
We review de novo the question whether an appellant received a speedy
trial. United States v. Heppermann, 82 M.J. 794, 803 (A.F. Ct. Crim. App.
2022). In doing so, “[w]e give substantial deference to findings of fact made by
the military judge and will not overturn such findings unless they are clearly
erroneous.” United States v. Fujiwara, 64 M.J. 695, 697 (A.F. Ct. Crim. App.
2007) (citations omitted). “Under an abuse of discretion standard, mere disa-
greement with the conclusion of the military judge who applied the R.C.M 707
factors is not enough to overturn his judgment.” United States v. Dooley, 61
M.J. 258, 262 (C.A.A.F. 2005); see also United States v. Vieira, 64 M.J. 524, 527
(A.F. Ct. Crim. App. 2006). If a military judge’s factfinding is not clearly erro-
neous, his ruling “should be affirmed unless . . . his decision in applying the
R.C.M. 707 factors was influenced by an incorrect view of the law.” Dooley, 61
M.J. at 263 (footnote omitted).
Servicemembers tried by courts-martial have a right to a speedy trial. Mil-
itary law identifies several sources for this right, including R.C.M. 707(a)–(b),
which requires that a person be arraigned within 120 days of preferral of
charges. After charges are initiated but before findings are announced, the con-
vening authority “may for any reason cause any charges or specifications to be
withdrawn.” R.C.M. 604(a). “Charges that have been withdrawn . . . may be
referred to another court-martial unless the withdrawal was for an improper
reason.” R.C.M. 604(b). When the accused is not under pretrial restraint at the
time charges are dismissed, a new 120-day period begins “the date on which
19
United States v. Souders, No. ACM 40145
charges are preferred anew.” R.C.M. 707(b)(3)(A)(ii)(I). However, if charges
were dismissed for an “improper purpose or for subterfuge,” the 120-day clock
runs from the date of the original preferral; that is to say, the original clock
“shall continue to run.” R.C.M. 707(b)(3)(A)(iii).
A proper reason for withdrawal is “a legitimate command reason which
does not ‘unfairly’ prejudice an accused.” United States v. Underwood, 50 M.J.
271, 276 (C.A.A.F. 1999) (citations omitted). Withdrawing charges in the inter-
est of “judicial economy by trying all known charges in a single trial” has been
upheld as a proper purpose. United States v. Koke, 34 M.J. 313, 315 (C.M.A.
1992). Withdrawing charges after the discovery of new evidence in order to try
all known offenses at a single trial has been found to be proper. United States
v. Leahr, 73 M.J. 364, 370 (C.A.A.F. 2014). “This reasoning aligns with the
proper reason of promoting judicial economy and referring all known charges
to a single court-martial.” Id. (first citing Koke, 34 M.J. at 315; and then citing
R.C.M. 601, Discussion, 2016 MCM).
Looking to the specifics of this case, we find the military judge’s findings of
fact are not clearly erroneous, and his conclusions of law were correct. The mil-
itary judge did not abuse his discretion in finding the convening authority’s
purpose for withdrawing the charge and specifications at issue was not im-
proper and Appellant suffered no prejudice. We reach the same conclusions in
our evaluation of the military judge’s application of the four factors set forth in
Barker, 407 U.S. at 530: (1) the length of the delay; (2) the reasons for the delay;
(3) an appellant’s assertion of his right to a timely review, if any; and (4) prej-
udice to the appellant. Analysis of the Barker factors demonstrates the military
judge did not abuse his discretion in finding Appellant was not denied the right
to a speedy trial under the Sixth Amendment.
C. Delayed Appellate Review
Appellant’s case was docketed with the court on 11 August 2021, more than
18 months before a decision was rendered. In United States v. Moreno, our su-
perior court established a presumption of facially unreasonable delay when a
service CCA does not issue a decision within 18 months of docketing. 63 M.J.
129, 142 (C.A.A.F. 2006).
Because there is facially unreasonable delay, we examine the four factors
set forth in Barker, 407 U.S. at 530, supra. Moreno, 63 M.J. at 135 (first citing
United States v. Jones, 61 M.J. 80, 83 (C.A.A.F. 2005); and then citing United
States v. Toohey, 60 M.J. 100, 102 (C.A.A.F. 2004) (per curiam)). “No single
factor is required for finding a due process violation 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 an appellant has not been prejudiced by the delay, there
is no due process violation unless the delay is so egregious as to “adversely
20
United States v. Souders, No. ACM 40145
affect the public’s perception of the fairness and integrity of the military justice
system.” United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006).
As to the first factor—the length of the delay—the appellate review of Ap-
pellant’s case has exceeded the Moreno standard of 18 months by less than one
month. Accordingly, this factor weighs in Appellant’s favor, but only slightly.
As to the second factor—the reasons for the delay—Appellant filed his assign-
ments of error on 7 July 2022, almost eleven months after his case was dock-
eted with this court, and after securing eight enlargements of time. The court
granted an enlargement of time for the Government to obtain declarations
from trial defense counsel responsive to Appellant’s assertions of ineffective
assistance of counsel. The court granted a second enlargement of time, of seven
days, for the Government to file its answer on 4 October 2022, at which point
the case was joined. Appellant replied to the Government’s answer on 19 Octo-
ber 2022.
The pleadings in this case indicate to us that Appellant’s appellate defense
counsel thoroughly and effectively reviewed the trial proceedings before assert-
ing assignments of error and issues on Appellant’s behalf. Likewise, the Gov-
ernment reasonably required more time to fully analyze and effectively re-
spond to Appellant’s brief. Under these circumstances, we find the reasons for
delay weigh against a finding of a due process violation. As to the third factor,
Appellant has not asserted his right to timely appellate review. Accordingly,
this factor weighs against Appellant.
Turning to the fourth factor—prejudice—we note Moreno identified three
types of prejudice arising from post-trial processing delay: (1) oppressive incar-
ceration; (2) anxiety and concern; and (3) impairment of grounds for appeal
and ability to present a defense at a rehearing. 63 M.J. at 138–39 (citation
omitted). Where, as here, an appellant does not prevail on the substantive
grounds of his appeal, there is no oppressive incarceration. Id. at 139 (citation
omitted). Similarly, where an appellant’s substantive appeal against his con-
viction fails, his ability to present a defense at a rehearing is not impaired. See
id. at 140–41. Furthermore, we do not discern any “particularized anxiety or
concern that is distinguishable from the normal anxiety experienced” by an
appellant awaiting an appellate decision. See id. at 140. Accordingly, this fac-
tor weighs against Appellant. See Toohey, 63 M.J. at 361. Considering all the
factors together we do not find a violation of Appellant’s due process right ow-
ing to delayed appellate review.
In the absence of a due process violation, a CCA has authority under Article
66, UCMJ, “to grant relief for excessive post-trial delay without a showing of
‘actual prejudice’ within the meaning of Article 59(a), [UCMJ, 10 U.S.C.
§859(a),] if it deems relief appropriate under the circumstances.” United States
v. Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002) (citation omitted). To determine if
21
United States v. Souders, No. ACM 40145
Tardif relief is warranted, we consider the factors announced in United States
v. Gay, 74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J. 264 (C.A.A.F.
2016). Those factors include how long the delay exceeded standards, the rea-
sons for the delay, whether the Government acted with bad faith or gross in-
difference, evidence of institutional neglect, harm to the appellant or to the
institution, whether relief is consistent with the goals of both justice and good
order and discipline, and whether this court can provide meaningful relief. Id.Applying these factors, the court finds appellate delay justified and relief is not
warranted.
III. CONCLUSION
The findings and sentence as entered are correct in law and fact, and no
error materially prejudicial to a substantial right of Appellant occurred. Arti-
cles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d). Accordingly, the find-
ings and the sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
22