United States v. Shouey ( 2020 )

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39684
________________________
UNITED STATES
Appellee
v.
Jenna E. SHOUEY
Airman First Class (E-3), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 21 October 2020
________________________
Military Judge: Matthew D. Talcott
Approved sentence: Bad-conduct discharge, confinement for 10 months,
forfeiture of all pay and allowances, reduction to E-1, and a reprimand.
Sentence adjudged 4 January 2019 by GCM convened at the United
States Air Force Academy, Colorado. 1
For Appellant: Major Yolanda D. Miller, USAF.
For Appellee: Lieutenant Colonel Brian C. Mason, USAF; Major Peter
F. Kellett, USAF; Mary Ellen Payne, Esquire; Alexis Dorner (legal ex-
tern). 2
Before POSCH, RAMÍREZ, and RICHARDSON, Appellate Military
Judges.
Judge RAMÍREZ delivered the opinion of the court, in which Senior
Judge POSCH and Judge RICHARDSON joined.
________________________
1Appellant was assigned to the 21st Space Wing at Peterson Air Force Base, Colorado,
but the court-martial was held at the United States Air Force Academy, also in Colo-
rado.
2 Ms. Dorner was at all times supervised by an attorney admitted to practice before
this court.
United States v. Shouey, No. ACM 39684
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
RAMÍREZ, Judge:
A general court-martial composed of a military judge sitting alone found
Appellant guilty, pursuant to her pleas and a pretrial agreement (PTA), of one
charge and one specification in violation of Article 92, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 892, for failure to obey a lawful order; one charge
and three specifications in violation of Article 112a, UCMJ, 10 U.S.C. § 912a,
for the wrongful possession of marijuana, wrongful possession of methamphet-
amine with the intent to distribute, and wrongful distribution of methamphet-
amine on divers occasions; and one charge and one specification in violation of
Article 134, UCMJ, 10 U.S.C. § 934, for prostitution. 3,4
The military judge sentenced Appellant to a bad-conduct discharge, con-
finement for ten months, forfeiture of all pay and allowances, reduction to the
grade of E-1, and a reprimand. The convening authority approved the sentence
as adjudged, and the PTA had no impact on the convening authority’s ability
to approve the adjudged sentence. 5
On appeal, Appellant raises a single assignment of error: 6 whether the mil-
itary judge abused his discretion when he denied Appellant’s motion to dismiss
the charges with prejudice for the Government’s alleged violation of Article 10,
UCMJ, 10 U.S.C. § 810. Appellant specifically raises three time periods when
the Government allegedly failed to take immediate steps to try her: (1) a 61-
day period from pretrial confinement to preferral of charges; (2) a 21-day period
from preferral until completion of the preliminary hearing; and (3) a 37-day
period between the preliminary hearing and service of the referred charges.
We find the military judge properly denied Appellant’s motion. Addition-
ally, after reviewing the entire record of this proceeding, we find no factual or
3All references to the Uniform Code of Military Justice are to the Manual for Courts-
Martial, United States (2016 ed.).
4 While Appellant was charged with other crimes, the convening authority agreed not
to go forward with those offenses as a term of the pretrial agreement (PTA).
5The PTA provided that the convening authority would not approve a punitive dis-
charge greater than a bad-conduct discharge, and no confinement in excess of 14
months would be approved.
6This issue was raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982).
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United States v. Shouey, No. ACM 39684
legal insufficiencies, and we find the sentence appropriate. We affirm the find-
ings and sentence.
I. BACKGROUND
After basic training, Appellant was stationed at Malmstrom Air Force Base
(AFB), Montana. According to Appellant, while at Malmstrom AFB, she and
her boyfriend, JH, were involved in a “domestic violence situation,” which led
military authorities to transfer Appellant to Peterson AFB, Colorado. Upon
arriving at Peterson AFB, Appellant’s commander issued her a no contact or-
der on or about 8 June 2018, prohibiting all contact with JH.
However, between 8 June 2018 and 17 August 2018, Appellant had multi-
ple contacts with JH, including through telephonic and text message conver-
sations. Moreover, Appellant and JH moved into an apartment together in vi-
olation of her commander’s order. Between 1 June 2018 and 17 August 2018,
Appellant became involved in prostitution and the unlawful possession and
distribution of drugs. Appellant eventually became the subject of investiga-
tions by civilian law enforcement and agents of the Air Force Office of Special
Investigations (AFOSI). On 17 August 2018, while under AFOSI surveillance,
Appellant sold methamphetamine, leading to her arrest. On that same day,
AFOSI agents executed a search warrant of Appellant’s residence and found
marijuana and methamphetamine, and Appellant was placed in pretrial con-
finement at the El Paso County Criminal Justice Center, a civilian confine-
ment facility in Colorado.
Ultimately, charges were preferred and referred, a PTA was negotiated,
and Appellant’s case was tried by general court-martial. Before trial, Appellant
moved to dismiss the charges on grounds that the Prosecution failed to take
“immediate steps” to try her, in violation of Article 10, UCMJ. In denying Ap-
pellant’s motion, the military judge made the following findings of fact that we
find are supported in the record.
Three days after being placed in pretrial confinement on 17 August 2018,
the special court-martial convening authority appointed a pretrial confinement
review officer (PCRO). On 21 August 2018, trial defense counsel provided no-
tice of representation and demanded a speedy trial. On the same day, a pretrial
confinement hearing was conducted. On 23 August 2018, the PCRO’s decision
memorandum was completed, finding a sufficient basis to keep Appellant in
pretrial confinement. On 3 September 2018, the chief of military justice (CMJ)
at the base where Appellant was assigned met with AFOSI agents to discuss
the status of Appellant’s case as well as the investigative steps the agents had
yet to complete. Following the meeting, the CMJ met with AFOSI agents three
to five times a week regarding the case.
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United States v. Shouey, No. ACM 39684
As investigation of Appellant’s case continued, on 17 September 2018 the
CMJ obtained the AFOSI case file. AFOSI agents were awaiting results of the
examination of a computer hard drive and Appellant’s urinalysis that were
sent for forensic testing. Although the AFOSI investigation was incomplete, on
24 September 2018 trial counsel completed a draft of the charges that were
supported by the evidence. On 25 September 2018, trial defense counsel con-
tacted the Prosecution to inquire about the status of the investigation and
whether the preferral of charges was forthcoming.
On 26 September 2018, the base legal office sent its analysis of the draft
charges for review by the general court-martial convening authority’s
(GCMCA) legal office, which completed its review on 3 October 2018 with sug-
gested edits and corrections.
On 11 October 2018, the AFOSI attempted to obtain the civilian police de-
partment report of Appellant’s interview as well as verbal summaries of inter-
views conducted by a detective involved in the case.
On 16 October 2018, charges were preferred against Appellant. Trial de-
fense counsel was not available for an Article 32, UCMJ, 10 U.S.C. § 832, pre-
liminary hearing from 19 October through 27 October 2018. The hearing oc-
curred on 30 October 2018, and the preliminary hearing officer’s report was
completed on 5 November 2018.
On 7 November 2018, trial defense counsel submitted a PTA offer in an
email to trial counsel and the CMJ. Trial counsel called trial defense counsel
twice during the week of 13 through 18 November 2018 and left messages to
discuss the PTA.
Over the next several weeks, the Prosecution and Defense exchanged sev-
eral emails regarding the PTA, arraignment, and the trial date. On 19 Novem-
ber 2018, trial defense counsel followed up with the CMJ regarding the PTA
offer. The next day, trial counsel proposed a 3 December 2018 arraignment. On
23 November 2018, trial defense counsel responded via email with a modified
PTA offer.
From 26 November 2018 through 6 December 2018, trial counsel and the
CMJ coordinated with the senior trial counsel and with the GCMCA’s legal
office regarding the preliminary hearing officer’s recommendations.
On 27 November 2018, the CMJ contacted trial defense counsel to confirm
matters regarding arraignment and the potential PTA. On the same day, trial
defense counsel responded that he was in court, but would contact the CMJ
later regarding the PTA offer. On 28 November 2018, the CMJ contacted trial
defense counsel again with inputs on the PTA offer that were provided by the
GCMCA’s legal office. On 3 December 2018, trial defense counsel responded
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United States v. Shouey, No. ACM 39684
that the PTA terms were agreeable, but that it would take a few days to get
the PTA in writing and signed by Appellant.
On 4 December 2018, the referral package was sent to the GCMCA’s legal
office. On 6 December 2018, trial defense counsel signed and served a formal
PTA offer. On 7 December 2018, trial defense counsel emailed the Prosecution
with recommendations as to which specifications should be referred and not
referred in order to reach an agreement on the terms of a PTA. On the same
day, the GCMCA referred the charges. This offer was never acted upon by the
GCMCA as trial defense counsel continued to communicate with the Govern-
ment with recommendations regarding which specifications should be referred
and not referred.
On 11 December 2018, the referred charges were served on Appellant. Ap-
pellant again demanded a speedy trial. On 13 December 2018, Appellant was
arraigned. On 14 December 2018, the trial defense counsel filed an expert re-
quest for a presentencing evaluation. Meanwhile, the Prosecution indicated it
would be ready for trial on 17 December 2018. On 19 December 2018, trial
defense counsel withdrew its request for expert assistance. On 20 December
2018, the GCMCA signed a second PTA offer submitted by Appellant. On 27
December 2018, trial defense counsel filed “Defense Motion to Dismiss for Ar-
ticle 10 Violations.” Trial began on 3 January 2019 and concluded on 4 January
2019.
After articulating the Barker v. Wingo, 407 U.S. 514 (1972), factors and
applying the facts to those factors, the military judge denied Appellant’s mo-
tion to dismiss. Ultimately, Appellant pleaded guilty in accordance with the
PTA that she negotiated with the convening authority.
II. DISCUSSION
A. Law
When a military member is placed in confinement prior to trial, “immediate
steps” must be taken to inform her of the specific wrong of which she is accused
and either try her or release her. Article 10, UCMJ, 10 U.S.C. § 810.
This court reviews the question of whether an appellant was denied her
right to a speedy trial under Article 10, UCMJ, de novo. United States v. Wil-
son, 72 M.J. 347, 350 (C.A.A.F. 2013) (citations omitted). However, we must
give “substantial deference to a military judge’s findings of fact that will be
reversed only if they are clearly erroneous.” United States v. Mizgala, 61 M.J.
122, 127 (C.A.A.F. 2005) (citations omitted).
The speedy trial requirement of Article 10, UCMJ, does not “demand con-
stant motion, but does impose on the Government the standard of ‘reasonable
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United States v. Shouey, No. ACM 39684
diligence in bringing the charges to trial.’” United States v. Cooley, 75 M.J. 247,
259 (C.A.A.F. 2016) (quoting Mizgala, 61 M.J. at 127). Appellate courts should
remain mindful of “the proceeding as a whole and not mere speed.” Mizgala,
61 M.J. at 129.
The United States Supreme Court established a four-factor test to deter-
mine “reasonable diligence,” assessing: “(1) the length of the delay; (2) the rea-
sons for the delay; (3) whether the appellant made a demand for a speedy trial;
and (4) prejudice to the appellant.” Wilson, 72 M.J. at 351 (citing Barker, 407
U.S. at 530). No one factor is “necessary or sufficient to finding of a deprivation
of the right of speedy trial.” Cooley, 75 M.J. at 259 (quoting Barker, 407 U.S.
at 533).
Under the military’s speedy trial jurisprudence, courts “break down the pe-
riods of delay, analyze the reasons for each, and may express concern with
some but not other periods of delay.” United States v. Danylo, 73 M.J. 183, 190
(C.A.A.F. 2014) (citations omitted). Generally, “[s]hort periods of inactivity are
not fatal to an otherwise active prosecution.” United States v. Thompson, 68
M.J. 308, 312 (C.A.A.F. 2010) (quoting Mizgala, 61 M.J. at 127).
When assessing the reason for delay, this court should consider the context,
because a “delay that can be tolerated for an ordinary street crime is consider-
ably less than for a serious, complex conspiracy charge.” Barker, 407 U.S. at
531. Additionally, a delay intended to “hamper the defense” should be weighted
more heavily than a “more neutral reason such as negligence.” Id. Where the
delay is based on the prosecution’s trial strategy, a time-consuming approach
is permissible if the strategy is “not unusual or inappropriate” under the cir-
cumstances. Danylo, 73 M.J. at 187. Ordinary “judicial impediments, such as
crowded dockets, unavailability of judges, and attorney caseloads, must be re-
alistically balanced.” United States v. Kossman, 38 M.J. 258, 261–62 (C.M.A.
1993).
The Supreme Court has held that Barker does not require an affirmative
demonstration of prejudice to prove a denial of the constitutional right to a
speedy trial. Moore v. Arizona, 414 U.S. 25, 26 (1973) (per curiam); see United
States v. Miller, 66 M.J. 571, 577 (N.M. Ct. Crim. App. 2008) (finding an Article
10, UCMJ, violation even though the accused suffered no “obvious prejudice”).
The Supreme Court identified three interests, related to the speedy trial
protection, to consider when assessing prejudice: (1) “to prevent oppressive pre-
trial incarceration;” (2) “to minimize anxiety and concern of the accused;” and,
most importantly, (3) “to limit the possibility that the defense will be im-
paired.” Barker, 407 U.S. at 532.
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United States v. Shouey, No. ACM 39684
B. Analysis
We find sufficient evidence in the record to support the military judge’s
findings of fact. Additionally, we find the military judge correctly applied the
applicable legal standards to the facts.
Both parties agree that Appellant made two demands for speedy trial.
Therefore, we first analyze the length of the delay and the reasons for the de-
lay.
While the total period of pretrial confinement was not insignificant, 139
days, it is not indicative of prejudice. Appellant was confined for multiple
charges including drug possession, drug distribution, and prostitution. Addi-
tionally, the charges in this case spanned military and civilian jurisdictions.
Finally, the Government brought these charges to trial with “reasonable dili-
gence.”
During the first period of alleged delay, from pretrial confinement to pre-
ferral of charges, the Government was actively preparing its case. The CMJ
conducted meetings with the AFOSI approximately three to five times a week
for about six weeks, beginning on 3 September 2018. On 17 September 2018,
the CMJ received a copy of the investigative file from the AFOSI containing
evidence acquired to that date. The following week, trial counsel completed a
draft of the charges and forwarded that analysis to the convening authority’s
legal office. One week later, the analysis was returned to trial counsel with
inputs from the GCMCA’s legal staff, and the charges were preferred on 16
October 2018.
While the military judge found the length of time from pretrial confinement
to preferral of charges “facially excessive,” he also found “the reasons for the
delay to be reasonable,” and that the Government “acted with reasonable dili-
gence in bringing this case to trial.” We also find that the length of time, in
light of the number and complexity of Appellant’s charges, was reasonable. The
record shows that during the investigation, the AFOSI conducted several wire-
taps, interviews, a urinalysis, and a forensic analysis on a laptop computer.
Appellant provides no support for her contention that the length of time it took
investigators to conduct these investigative steps was unreasonable.
Appellant alleges another delay, from preferral of charges to completion of
the preliminary hearing officer’s report, was unreasonable. However, we find
no unreasonable delay. On 17 October 2018, the Government identified a pre-
liminary hearing officer who was suitable and available to conduct a hearing.
Appellant’s trial defense counsel was not available from 19 October through 27
October 2018. On 30 October 2018, one duty day after the trial defense counsel
was again available, the hearing was conducted. On 5 November 2018, the pre-
liminary hearing officer completed his report. Notwithstanding the conflicts in
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United States v. Shouey, No. ACM 39684
the trial defense counsel’s schedules, Appellant’s case proceeded through this
pre-referral period without unreasonable delay.
Finally, from completion of the preliminary hearing to the service of
charges that the convening authority referred, Appellant contends that an un-
reasonable 37-day delay occurred. Between 7 November and 4 December 2018,
there were various communications between trial counsel and trial defense
counsel. Appellant initiated PTA discussions with the Government on 7 No-
vember 2018. On 6 December 2018, trial defense counsel signed and served a
formal PTA offer. The next day, trial defense counsel emailed the Prosecution
with recommendations regarding referral. On 7 December 2018, the convening
authority referred charges, and on 11 December 2018, Appellant renewed her
demand for a speedy trial. We find no unreasonable delay during this period.
Considering the combined length of the pretrial delay, we consider the
fourth Barker factor—prejudice to Appellant. See Barker, 407 U.S. at 530.
While not required to affirmatively demonstrate prejudice, Moore, 414 U.S. at
26, Appellant claims she suffered prejudice attributable to the 139-day delay
that occurred while she was in pretrial confinement. Appellant filed a motion
to consider her declaration regarding prejudice, which we granted. 7 In her dec-
laration, she alleges the conditions of confinement, namely the lack of a means
for exercise and the lack of natural sunlight, violated her rights as an Air Force
detainee. She further claims she was suffering anxiety due to her inability to
manage her finances, and that her ability to assist in her defense was substan-
tially affected by her confinement because she was unable “to call [her] attor-
ney on a non-recorded line.”
We find no causal connection between these difficulties and the delays Ap-
pellant claims are unreasonable even if this court may consider them. There is
no evidence that the conditions and anxiety Appellant alleges are different
from those that a typical accused individual would experience. Additionally,
there is nothing to suggest that Appellant’s trial defense counsel was impaired
at trial or in pretrial preparations by the time it took the Government to bring
Appellant to trial.
While the length of delay, in total, may weigh in favor of Appellant, and
Appellant demanded a speedy trial, the reasons for delay were reasonable, and
we find no prejudice attributable to any delay. Therefore, we find Appellant’s
speedy trial rights under Article 10, UCMJ, were not violated. The military
7Following this court’s Article 66(c), UCMJ, 10 U.S.C. § 866(c), mandate to review “the
entire record,” we assume without deciding that this court has authority to consider
Appellant’s outside-the-record declaration on the issue.
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United States v. Shouey, No. ACM 39684
judge did not abuse his discretion in his factfinding, and we conclude Appellant
has not shown denial of her right to a speedy trial under Article 10, UCMJ.
III. CONCLUSION
The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and the sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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