United States v. Zapata ( 2022 )

U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 40048
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UNITED STATES
Appellee
v.
John C. ZAPATA
Staff Sergeant (E-5), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Decided 14 October 2022
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Military Judge: Rebecca E. Schmidt.
Sentence: Sentence adjudged 10 October 2020 by GCM convened at Da-
vis-Monthan Air Force Base, Arizona. Sentence entered by military
judge on 10 November 2020: Bad-conduct discharge, confinement for 14
months, and reduction to E-1.
For Appellant: Major Sara J. Hickmon, USAF.
For Appellee: Lieutenant Colonel Thomas J. Alford, USAF; Lieutenant
Colonel Amanda L.K. Linares, USAF; Lieutenant Colonel Matthew J.
Neil, USAF; Major Morgan R. Christie, USAF; Major John P. Patera,
USAF; Mary Ellen Payne, Esquire.
Before KEY, ANNEXSTAD, and MEGINLEY, Appellate Military
Judges.
Judge MEGINLEY delivered the opinion of the court, in which Senior
Judge KEY and Judge ANNEXSTAD joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
United States v. Zapata, No. ACM 40048
MEGINLEY, Judge:
A general court-martial composed of a military judge sitting alone con-
victed Appellant, in accordance with his pleas and pursuant to a pretrial agree-
ment, of two specifications of assault consummated by battery, and two speci-
fications of assault consummated by battery on divers occasions, all in violation
of Article 128, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 928.1 Ap-
pellant was sentenced to a bad-conduct discharge, confinement for 14 months,
and reduction to the grade of E-1. The convening authority approved the sen-
tence in its entirety.
Appellant raises four assignments of error on appeal: (1) whether the mili-
tary judge abused her discretion in admitting previously excluded portions of
a victim’s unsworn statement as a prosecution exhibit; (2) whether the record
of trial is substantially complete; (3) whether trial defense counsel were inef-
fective; and (4) whether Appellant’s sentence is inappropriately severe. We
have carefully considered issue (2), and the portion of issue (3) that pertains to
issue (2), and determined these issues are without merit and warrant no relief.
See United States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987). In addition, the
court considers the issue of timely appellate review.
We find no error that materially prejudiced a substantial right of Appellant
and affirm the findings and sentence.
I. BACKGROUND
Appellant entered active duty service in February 2006 as a member of the
United States Navy. He completed two terms of enlistment, serving a total of
eight years in the Navy, and then entered the Individual Ready Reserve. In
December 2013, Appellant enlisted in the United States Air Force Reserve and
was assigned to Travis Air Force Base, California. In October 2015, he became
a member of the Arizona Air National Guard. Appellant was on Title 10 orders
during the timeframe of the allegations.
There are two victims in this case: Appellant’s ex-wife, AM, and his former
intimate partner, MB. Originally, two specifications of sexual assault against
MB and two specifications of sexual assault against AM were referred against
1 All references in this opinion to the punitive articles of the UCMJ are to the Manual
for Courts-Martial, United States (2016 ed.) (2016 MCM). The charge and specifica-
tions were referred to trial after 1 January 2019; accordingly, all other references to
the UCMJ and Rules for Courts-Martial are to the Manual for Courts-Martial, United
States (2019 ed.) (2019 MCM). See Exec. Order 13,825, §§ 3, 5, 83 Fed. Reg. 9889, 9889–
90 (8 Mar. 2018). As discussed later in this opinion, pursuant to the pretrial agreement,
numerous other specifications were dismissed with prejudice.
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United States v. Zapata, No. ACM 40048
Appellant, all alleged violations of Article 120, UCMJ, 10 U.S.C. § 920. A single
specification of assault consummated by battery against AM was also referred
against Appellant. On 9 October 2020, the day before Appellant’s court-mar-
tial, pursuant to pretrial negotiations, an additional charge with four specifi-
cations of assault consummated by battery (two specifications each against AM
and MB), in violation of Article 128, UCMJ, were preferred and referred
against Appellant; the charge and its specifications were served on Appellant
the day of his court-martial.
As part of his pretrial agreement, Appellant waived his right to an Article
32, UCMJ, 10 U.S.C. § 832, preliminary hearing, and waived the five-day stat-
utory waiting period between the referral of the additional charge and its spec-
ifications and arraignment, under Article 35(b(1)(A), UCMJ, 10 U.S.C.
§ 835(b)(1)(A). In return for pleading guilty to the additional charge and its
specifications, the convening authority committed to withdrawing the original
charges and specifications once the military judge accepted Appellant’s guilty
pleas. The convening authority further committed to dismiss the withdrawn
charges with prejudice after Appellant’s sentence was announced.
Also, in accordance with the pretrial agreement, Appellant entered into a
stipulation of fact. The information provided in the stipulation of fact and in
Appellant’s providence inquiry forms the basis for the following factual back-
ground.
A. Victim AM
Appellant met AM while serving in the Navy on the USS NASSAU in Nor-
folk, Virginia. The two were married in August 2008 and divorced in February
2017. According to the stipulation of fact, throughout the latter half of their
marriage, Appellant and AM “had a contentious relationship.” During his prov-
idence inquiry, Appellant added that he and AM would “argue frequently” and
Appellant “would sometimes stay away from the house.” Additionally, Appel-
lant admitted during his providence inquiry that between 5 January 2016 to
30 April 2016, and between 3 July 2016 to 31 October 2016, on divers occasions,
he touched AM’s “breasts, buttocks, and vaginal area over the clothing with
[his] hand.” Appellant stipulated that AM would tell Appellant “no” or “get off,”
or she “would swat his hand away” when he touched her. Appellant told the
military judge these acts happened “several times a week,” and that when he
touched AM in this manner he was either “trying to be funny” or “trying to
initiate sex.” Appellant acknowledged his touching of AM was offensive and
unwanted.
B. Victim MB
Appellant met MB in February 2016 in Tucson, Arizona. They dated for
two months, then later became friends. While dating, and afterward when they
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United States v. Zapata, No. ACM 40048
were just friends, Appellant and MB engaged in consensual sex on numerous
occasions. However, at times, MB “experienced pain while having vaginal in-
tercourse with [Appellant]. When this occurred, [MB] would inform [Appel-
lant], and the pair would change positions, slow down, or use lubrication.” In
September 2016, although they were not dating, Appellant “began sleeping” at
MB’s apartment.
One night in January 2017, Appellant and MB went out in downtown Tuc-
son. After returning to MB’s apartment, they engaged in consensual sex. Soon
after they began to have sex, MB informed Appellant that she was experiencing
some pain, so they switched positions. After switching positions, MB again be-
gan to experience pain and asked Appellant to stop. Appellant stipulated that
he “did not immediately remove his penis from her vagina.” Appellant further
stipulated that MB “essentially” stated the following to agents from the Air
Force Office of Special Investigations (AFOSI):
[MB] asked [Appellant] to stop five to six times, and he did not
stop. She began to cry because [Appellant] was getting mad. She
tried to pull away from [Appellant] and move closer to the wall.
[Appellant] told [MB] he “needed to finish” and it was “uncom-
fortable” for him not to finish. [MB] told [Appellant] to “take care
of himself.” [Appellant] got mad. [Appellant] “gave up,” stopped
having sex with [MB], and went to sleep on the couch in the liv-
ing room.
During his providence inquiry, Appellant acknowledged that MB told him
to stop “because the sex was hurting her,” but given that he was “close to cli-
max,” he kept his penis inside her vagina and asked her if she could “just power
through,” or words to that effect. MB told him she wanted to stop having sex.
Once MB told him again that she wanted him to stop, Appellant “removed [his]
penis from her vagina,” “rolled over and passed out,” and the two went to sleep
in the same bed.
On 18 March 2017, Appellant and MB again went out in downtown Tucson.
The two returned to MB’s apartment later that evening after consuming alco-
hol, and upon their return, engaged in consensual sex. Soon after they began,
MB again began to feel vaginal discomfort and they switched positions. After
continuing for a while, MB told Appellant she was in pain and asked him to
stop; Appellant did not immediately remove his penis from her vagina. Much
like the previous instance, Appellant stipulated that MB “essentially” stated
the following to agents from AFOSI:
[MB] asked [Appellant] to stop multiple times. [Appellant] was
getting angry. He told [MB] she “had to help [him] out” and
asked why she could not just “help [him] out before going to bed.”
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United States v. Zapata, No. ACM 40048
He kept getting frustrated because he wanted to orgasm. [Ap-
pellant] continued to have sex with [MB] until he ejaculated.
[Appellant] and [MB] then went to sleep in the same bed.
(Fifth and sixth alterations in original).
In his providence inquiry, Appellant again acknowledged that MB had in-
formed him that the sex was painful and she wanted him to stop. He also con-
firmed that he did not stop and “kept [his] penis inside her vagina while [he]
asked her to keep going until [he] could climax.” Although Appellant failed to
acknowledge he ejaculated in MB’s vagina, he told the military judge, “taking
into account [MB]’s statements regarding this incident, which I have no reason
to believe are false, further solidify my belief that I am guilty of this offense.”
(Emphasis added). Appellant and MB had consensual sex at least twice after
this incident. In May 2017, Appellant and MB “stopped talking and [Appellant]
moved out of [MB’s] apartment.”
As previously mentioned, Appellant was initially charged with two specifi-
cations of sexual assault against MB, under Article 120, UCMJ, two specifica-
tions of sexual assault against AM, under Article 120, UCMJ, and one specifi-
cation of assault against AM, under Article 128, UCMJ. As part of the pretrial
agreement, these specifications were to be withdrawn and dismissed with prej-
udice. The newly referred Additional Charge consisted of two specifications al-
leging Appellant touched MB’s vulva “with his body” and two specifications
involving Appellant touching AM’s breast, buttocks, and vulva with his hand,
over her clothes, all charged under Article 128, UCMJ.
II. DISCUSSION
A. AM’s Victim Impact Statement
1. Additional Background
Appellant argues the military judge abused her discretion in admitting pre-
viously excluded portions of AM’s unsworn victim’s impact statement as a pros-
ecution exhibit. Prior to the military judge’s acceptance of AM’s written un-
sworn statement as Court Exhibit B, trial defense counsel objected to portions
of AM’s unsworn statement on the basis that they contained matters not di-
rectly relating to or arising from the offenses of which Appellant had been
found guilty. Specifically, trial defense counsel objected to AM’s portrayal of
Appellant’s “abuse” of her “over the course of a decade approximately February
2006 to February 2017;” to her statement that Appellant had constantly “body
sham[ed]” her and told her that “[she] and [her] family sucks;” and to AM’s use
of the phrase “long term” to describe the emotional and physical abuse AM
suffered “at the hands of [Appellant].”
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United States v. Zapata, No. ACM 40048
Trial defense counsel also objected to Paragraph 3 of Court Exhibit B in its
entirety, which reads as follows:
I would like to add, the events that led up to the night of
Oct[ober] 8 into Oct[ober] 9 were as follows: [Appellant] took my
phone without my permission and saw text messages between
myself and another man. He was already drinking liquor heavily
and became very angry. The last thing I remember was him pull-
ing me by the back of my head and dragging me into the house.
I woke up several hours later in the morning to a pillow soaked
with blood, my hair matted and stuck to the pillow, my eyes
hugely swollen and black and a huge open gash down the middle
of my forehead. Also, my phone with a hard [phone] cover, was
broken on the floor, a big blood stain at the footboard of the bed
on the right side, drips of blood leading up to the bed and a bro-
ken light bulb in the living room lamp with the shade askew. I
felt very dizzy and sick to my stomach as well as frightened to
the look of my facial features. I asked him what happened and
he said he hit me with my phone, banged my head and punched
me several times. He begged me not to go the ER, said he was so
sorry and that he loved me and then he applied liquid stitch to
my forehead. I did end up going to the ER later on that day and
the ER doctor sat directly in front of my face, looked directly into
my eyes and asked if someone was harming me. I denied anyone
was and said I had fallen. I very much believe he knew to the
contrary as a doctor but could not report anything since I denied
any abuse.[2]
The military judge agreed with trial defense counsel and sustained his ob-
jections. Noting the “particular forum” of a military judge-alone trial, the mil-
itary judge stated that she would not consider the portions to which she sus-
tained the objection; the Defense did not object.
At the conclusion of the victims’ matters, the Defense presented its sen-
tencing case, which included an unsworn statement from Appellant, various
awards, and 12 character letters. The Government objected to these exhibits
“on the grounds of foundation, authenticity, and hearsay to all.” Trial defense
counsel then requested the military judge relax the rules of evidence for the
2 The original Charge II and its Specification, which alleged assault consummated by
battery against AM, reads as follows: that Appellant, “did, at or near Vail, Arizona,
between on or about 8 October 2016 and on or about 9 October 2016, unlawfully strike
AM in the face with his hand.”
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United States v. Zapata, No. ACM 40048
purpose of sentencing; the military judge granted the request, and the exhibits
were admitted.
After the Defense rested, trial counsel requested the military judge recon-
sider her ruling that excluded Paragraph 3 of AM’s victim impact statement
and asked the military judge to consider that information as rebuttal evidence.
Focusing in part on a character letter submitted by Ms. JP, who identified her-
self as a close family friend, trial counsel argued that the Defense had opened
the door to admit Paragraph 3 of AM’s victim impact statement as rebuttal
evidence. Trial counsel highlighted the following portions of Ms. JP’s state-
ment:
[Appellant] is deeply kind, compassionate, and loving in his
treatment and respect for others; especially towards his chil-
dren, family, and friends.
. . . He displays respect at all times while listening and encour-
aging other’s opinions and input as it pertains to his own self-
improvement. [Appellant] has always been open minded but con-
sistently exceeds expectations in his interpersonal skills, prob-
lem-solving abilities, and work ethic.
Trial counsel identified a couple of other possible statements that he believed
opened the door to rebuttal. Trial counsel also stated there were additional
instances of the Defense opening the door, but that “the [G]overnment ha[d]
just given the court a sampling.”
Defense counsel opposed the Government’s oral motion to reconsider, argu-
ing that the Government’s rebuttal evidence was not proper rebuttal as it did
“not actually rebut[ ] anything that was presented, but [was] just a backdoor
attempt to try and introduce what is highly prejudicial information.” The De-
fense further objected that a victim impact statement was not proper rebuttal
evidence as it was not evidence at all.
The military judge ultimately determined that the excluded Paragraph 3
of AM’s victim impact statement rebutted some portions of Ms. JP’s character
statement. However, the military judge expressed concern regarding how the
Government wanted to introduce the rebuttal evidence, specifically, by making
it a separate prosecution exhibit. The military judge then stated, “United
States v. Dunlap[3] specifically tells me that it is not appropriate to effectively
convert a victim impact statement into a prosecution exhibit.” Trial counsel
then argued that the circumstances of Appellant’s case were different from
those of the appellant in Dunlap, focusing primarily on the entire victim’s
3 United States v. Dunlap, No. ACM 39567, 2020 CCA LEXIS 148, at *13 (A.F. Ct.
Crim. App. 4 May 2020) (unpub. op.).
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United States v. Zapata, No. ACM 40048
statement being admitted as a prosecution exhibit in Dunlap whereas trial
counsel was only offering a single paragraph from a victim unsworn statement.
The military judge replied, “And so what is this then, [t]rial [c]ounsel? Is this
a court exhibit? Is it a prosecution exhibit?” She explained that the opinion in
Dunlap held “it was not acceptable to simply put the document in and say por-
tions of it are a court exhibit and portions of it are a prosecution exhibit.”
Trial counsel ultimately offered the following:
To the extent that the court has concerns about [the form of the
exhibit], what the [G]overnment would propose . . . is that the
[G]overnment take the entirety of [AM’s written unsworn state-
ment], [ ] redact everything except the paragraph that’s particu-
larly of issue, and the signature. So it would include the para-
graph and the signature of [AM], and that would be Prosecution
Exhibit 4 for identification. And that we would offer that under
the relaxed rules to rebut the statement in Ms. [JP’s] statement.
The military judge sustained the Defense’s objection to her “consideration
of portions of Court Exhibit B . . . on the basis of form and the fact that the
court doesn’t understand Court Exhibit B to be a document that can be con-
verted or considered for both a dual victim impact statement and prosecution
exhibit statement purpose.” The military judge then explained that if the Gov-
ernment wished to consider Prosecution Exhibit 4 for Identification as poten-
tial rebuttal evidence, then the Government would need to produce that docu-
ment and “address that document separately.”
After a short break, trial counsel then offered Prosecution Exhibit 4 for
Identification, “under the relaxed rules” as rebuttal evidence. This exhibit con-
sisted of the information contained in Paragraph 3 of Court Exhibit B—that is,
the information which the military judge had declined to consider as proper
victim impact matters for a victim unsworn statement. The new prosecution
exhibit bore AM’s signature.4 Trial defense counsel reiterated his previous ob-
jection, and further noted that this was “highly prejudicial” under the Mil. R.
Evid. 403 balancing test. In conducting a balancing test under Mil. R. Evid.
403, the military judge overruled the Defense’s objection, stating:
The court finds the probative value of this evidence for rebuttal
purpose is appreciable. Evidence that the accused’s [sic] his wife
with his phone, banged her hand and pushed her several times,
strongly refutes the characterization of the accused as an excep-
tional man of character and a deeply kind, compassionate and
4 Comparing AM’s original signature on Court Exhibit B to her signature on Prosecu-
tion Exhibit 4, it appears to the court that AM signed both documents separately.
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United States v. Zapata, No. ACM 40048
loving person in his treatment and respect for others, especially
his family. The court finds that the danger of unfair prejudice
and confusion of the issues is low. The court intends to consider
this evidence only for the narrow purpose of rebutting the evi-
dence presented by the [D]efense; again, the two specific state-
ments by Ms. [JP] in her character letter.
While [Paragraph 3] does describe an additional assault by the
accused, the conduct described is not so inflammatory as to be
likely to result in a decision on an emotional or otherwise im-
proper basis. The court does not anticipate any difficulty in con-
sidering this document solely for the narrow purpose of rebut-
ting Ms. [JP’s] letter.
The evidence in this matter is limited to the contents of this par-
agraph and the rebuttal purpose of the evidence is clear and eas-
ily understood. The rules of evidence have been relaxed, and the
court does find the evidence sufficiently reliable for the purposes
of the [Mil. R. Evid.] 403 balancing. The court will admit the doc-
ument and give it the weight, if any, that is warranted.
(Emphasis added).
On appeal, Appellant argues the military judge abused her discretion by
admitting Paragraph 3 of Court Exhibit B as Prosecution Exhibit 4, claiming
“the Government adopted the victim’s right to be heard as its own and at-
tempted to wedge in the document as rebuttal evidence.” Appellant also argues
this exhibit failed the Mil. R. Evid. 403 balancing test, asserting “the Govern-
ment adopted the victim’s right of allocution and became the mouthpiece for
her words.” Thus, Appellant argues the military judge abused her discretion,
and Appellant suffered prejudice, when the military judge allowed the Govern-
ment to convert Paragraph 3 of AM’s victim impact statement into Prosecution
Exhibit 4.
2. Law
“We review a military judge’s decision to admit evidence for an abuse of
discretion.” United States v. Norwood, 81 M.J. 12, 17 (C.A.A.F. 2021) (citation
omitted). “An abuse of discretion occurs when a military judge either errone-
ously applies the law or clearly errs in making his or her findings of fact.”
United States v. Donaldson, 58 M.J. 477, 482 (C.A.A.F. 2003) (citing United
States v. Humpherys, 57 M.J. 83, 90 (C.A.A.F. 2002)). “The abuse of discretion
standard is a strict one, calling for more than a mere difference of opinion. The
challenged action must be ‘arbitrary, fanciful, clearly unreasonable,’ or ‘clearly
erroneous.’” United States v. McElhaney, 54 M.J. 120, 130 (C.A.A.F. 2000)
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United States v. Zapata, No. ACM 40048
(quoting United States v. Miller, 46 M.J. 63, 65 (C.A.A.F. 1997); United States
v. Travers, 25 M.J. 61, 62 (C.M.A. 1987)).
Military judges are permitted to relax the rules of evidence with respect to
defense matters in extenuation or mitigation; doing so “may include admitting
letters, affidavits, certificates of military and civil officers, and other writings
of similar authenticity and reliability.” Rule for Courts-Martial (R.C.M.)
1001(d)(3) (emphasis added); see also Mil. R. Evid. 1101(b). When these rules
are so relaxed, they may also be relaxed “to the same degree” for evidence of-
fered by the Government in rebuttal. R.C.M. 1001(e). This relaxation of the
rules “goes more to the question of whether the evidence is authentic and reli-
able,” and does not convert otherwise inadmissible evidence to admissible evi-
dence. United States v. Saferite, 59 M.J. 270, 273 (C.A.A.F. 2004) (quot-
ing United States v. Boone, 49 M.J. 187, 198 n.14 (C.A.A.F. 1998)).
In sentencing, except for non-factual matters in the accused’s unsworn
statement, the “prosecution may rebut matters presented by the defense.”
United States v. Bazar, No. ACM 37548, 2012 CCA LEXIS 242, at *14 (A.F. Ct.
Crim. App. 29 Jun. 2012) (unpub. op) (internal quotation marks and citation
omitted); see also R.C.M. 1001(d)(2)(C); R.C.M. 1001(e). The legal function of
rebuttal evidence is to “explain, repel, counteract or disprove the evidence in-
troduced by the opposing party.” Saferite, 59 M.J. at 274 (quoting United States
v. Banks, 36 M.J. 150, 166 (C.M.A. 1992)).
“[T]he relevance of the Government’s rebuttal evidence must be determined
in light of the evidence first introduced and issues initially raised by the de-
fense.” Bazar, unpub. op. at *15 (alteration in original) (quoting United States
v. Hallum, 31 M.J. 254, 256 (C.M.A. 1990)). For example, rebuttal evidence
may be presented to contradict defense evidence of “particular acts of good con-
duct or bravery and evidence of the reputation or record of the accused in the
service for efficiency, fidelity, subordination, temperance, courage, or any other
trait that is desirable in a servicemember.” Id. (internal quotation marks and
citation omitted); see also R.C.M. 1001(d)(1)(B). In other words, “[t]he scope of
rebuttal is defined by evidence introduced by the other party.” Banks, 36 M.J.
at 166 (citations omitted). When an accused “opens the door, principles of fair-
ness warrant the opportunity for the opposing party to respond, provided the
response is fair and is predicated on a proper testimonial foundation.” United
States v. Eslinger, 70 M.J. 193, 198 (C.A.A.F. 2011) (citing United States v.
Blau, 17 C.M.R. 232, 244 (C.M.A. 1954)) (holding that otherwise “an accused
would occupy the unique position of being able to ‘parade a series of partisan
witnesses before the court’ . . . without the slightest apprehension of contradic-
tion or refutation”).
Military judges are afforded wide latitude in controlling the presentation
of rebuttal evidence. United States v. Gittens, 36 M.J. 594, 598 (A.F.C.M.R.
10
United States v. Zapata, No. ACM 40048
1992). “Rebuttal evidence, like all other evidence, may be excluded pursuant
to [Mil. R. Evid.] 403 if its probative value is substantially outweighed by the
danger of unfair prejudice.” Saferite, 59 M.J. at 274 (citing United States v.
Hursey, 55 M.J. 34, 36 (C.A.A.F. 2001)). Military judges are afforded broad dis-
cretion in applying Mil. R. Evid. 403, but we give less deference to military
judges “if they fail to articulate their balancing analysis on the record.” United
States v. Collier, 67 M.J. 347, 353 (C.A.A.F. 2009) (quoting United States v.
Manns, 54 M.J. 164, 166 (C.A.A.F. 2000)).
Whether an error is harmless is a question of law we review de novo. United
States v. Bowen, 76 M.J. 83, 87 (C.A.A.F. 2017). “When there is error in the
admission of sentencing evidence, the test for prejudice ‘is whether the error
substantially influenced the adjudged sentence.’” United States v. Barker, 77
M.J. 377, 384 (C.A.A.F. 2018) (quoting United States v. Sanders, 67 M.J. 344,
346 (C.A.A.F. 2009)). We consider four factors when determining whether an
error had a substantial influence on the sentence: “(1) the strength of the Gov-
ernment’s case; (2) the strength of the defense case; (3) the materiality of the
evidence in question; and (4) the quality of the evidence in question.” Id. (quot-
ing Bowen, 76 M.J. at 89).
3. Analysis
Appellant argues that Paragraph 3 of Court Exhibit B was not proper re-
buttal evidence, that the military judge abused her discretion by allowing the
Government to convert Paragraph 3 of Court Exhibit B into a prosecution ex-
hibit, and that Appellant suffered prejudice as a result of the military judge’s
abuse of discretion. This assignment of error can be analyzed in two parts:
whether the Government established a sufficient basis for the admission of
Prosecution Exhibit 4 during the rebuttal portion of presentencing; and, if not,
whether the admission of the exhibit was unduly prejudicial to Appellant.
The facts of this case are somewhat similar to those this court encountered
in Dunlap, the case specifically cited by the military judge in her ruling on this
matter. In Dunlap, the victim presented an unsworn statement to the court.
Unpub. op. at *5. Trial defense counsel objected to portions of the victim’s state-
ment, an objection which was sustained, in part. Id. at *4–6. After the appel-
lant presented his sentencing case, the Government sought to admit portions
of the victim’s unsworn statement that had been previously excluded, arguing
these portions of her statement rebutted assertions the appellant had made in
his sentencing case. Id. at *8. Over defense objection, the military judge in
Dunlap permitted trial counsel to use some of those requested portions in re-
buttal. Id. In determining how to submit the formerly excluded statements, the
military judge in Dunlap stated, “I don’t think marking is really going to mat-
ter because really the Rules of Evidence are relaxed. I just think it’s important
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United States v. Zapata, No. ACM 40048
to mark for the Appellate record.” Id. at *9. Trial counsel marked the newly
admitted statements as a prosecution exhibit.5 Id.
In Dunlap, a panel of this court noted:
While the Government was permitted to rebut statements of fact
contained in [the appellant]’s unsworn statement, the scope of
that rebuttal was constrained by the scope of the factual asser-
tions in [the appellant]’s unsworn statement, which [the vic-
tim’s] statement far eclipsed. Rather than a tailored rebuttal,
the Government offered, and the military judge admitted, a
wide-ranging unsworn statement from [the victim] as a prosecu-
tion exhibit upon the suggestion of the military judge.
. . . R.C.M. 1001A[6] permits a victim to provide information to
the court-martial about the impacts they have suffered as a re-
sult of an accused’s offenses. The admission of [the victim’s] en-
tire unsworn statement as a prosecution exhibit, ostensibly in
rebuttal to a single point from [the appellant]’s own unsworn
statement, was plain error and an abuse of the military judge’s
discretion.
Id. at *28–29. Although this court found error, it concluded the appellant was
not prejudiced by this error. Id. at *33–34.
Dunlap is distinguishable from Appellant’s case. Where the military judge
in Dunlap permitted trial counsel to admit the victim’s entire statement as a
prosecution exhibit, in Appellant’s case the military judge admitted a new pros-
ecution exhibit that contained rebuttal-specific portions of AM’s original state-
ment that had been previously excluded. Like Dunlap, once Prosecution Ex-
hibit 4 was admitted, it was no longer an unsworn victim impact statement.
Because the Defense had been granted relaxation of the rules of evidence, the
Government was relieved of its foundational burden and was able to admit the
5 Changes were later made to this exhibit; trial defense counsel did not object to those
changes. In its opinion, the court noted:
Trial counsel then provided the military judge and the court reporter
Appellate Exhibit IV and Court Exhibit 1, which the military judge de-
scribed as the “edited version” of [the victim’s] unsworn statement. No
court exhibits were included in the record of trial we received, and none
are listed in the record’s table of contents. [The victim’s] written un-
sworn statement, however, is included as Prosecution Exhibit 19.
Dunlap, unpub. op. at *9–10.
6 2016 MCM. R.C.M. 1001A is now included in R.C.M. 1001 to the 2019 MCM.
12
United States v. Zapata, No. ACM 40048
exhibit into evidence as part of the Government’s rebuttal case, which was oth-
erwise not admissible as victim impact.
We find the Government established a sufficient basis for the admission of
Prosecution Exhibit 4 during the rebuttal portion of presentencing. Ms. JP’s
statements sought to portray Appellant as a “deeply kind, compassionate, and
loving” person and indicated that he “display[ed] respect at all times.” As a
result, Appellant opened the door for the Government to contradict Ms. JP’s
assertions, and AM’s claim that Appellant brutally assaulted her rebutted as-
sertions that Appellant was a kind, compassionate, loving, and respectful per-
son. As the United States Supreme Court has explained, “The price a defend-
ant must pay for attempting to prove his good name is to throw open the entire
subject which the law has kept closed for his benefit and to make himself vul-
nerable where the law otherwise shields him.” Michelson v. United States, 335
U.S. 469, 479 (1948). Although Appellant posits that the Government adopted
AM’s “right to be heard as its own and attempted to wedge in the document as
rebuttal evidence,” we know of no rule that prevents a victim from providing
both a victim impact statement under R.C.M. 1001(a)(3)(A) and evidence in
rebuttal under R.C.M. 1001(e). In this regard, AM certainly could have testi-
fied in rebuttal to Ms. JP’s assertion that Appellant was kind, compassionate,
and respectful; moreover, a document styled as a character letter would also
be a permissible means to rebut Ms. JP’s assertion under relaxed rules.
Although we find the Government had established a sufficient foundation
to rebut Ms. JP’s character letter, we find the military judge abused her dis-
cretion in allowing the entirety of Prosecution Exhibit 4. Much like Dunlap,
while the Government was permitted to rebut statements contained in Ms. JP’s
character letter, the scope of that rebuttal was constrained by the scope of the
factual assertions in Ms. JP’s character letter—which Prosecution Exhibit 4
eclipsed. We specifically find the latter portion of Prosecution Exhibit 4, where
AM described her interaction with the emergency room doctor, went beyond
the scope of rebuttal.7 While AM’s description of Appellant assaulting her
squarely rebuts Appellant’s attempt to portray himself as “deeply kind, com-
passionate, and loving in his treatment and respect for others,” the fact AM
denied being abused to a doctor does not shed any light on that point.
Having determined the military judge abused her discretion in admitting
the portion of Prosecution Exhibit 4 that discussed AM’s interaction in the
emergency room, we assess the impact of this error on Appellant’s sentence by
7 We specifically find issue with the following statement: “[T]he ER doctor sat directly
in front of my face, looked directly into my eyes and asked if someone was harming me.
I denied anyone was and said I had fallen. I very much believe he knew to the contrary
as a doctor but could not report anything since I denied any abuse.”
13
United States v. Zapata, No. ACM 40048
determining—utilizing the four Barker factors described above—whether the
errors “substantially influenced the adjudged sentence.” Barker, 77 M.J. at
384 (citation omitted). First, the Government’s case against Appellant was
strong. Appellant was charged with, and pleaded guilty to, significant offenses
against two intimate partners. Contrary to Appellant’s claim that these were
“relatively minor assault offenses,” we disagree with this assertion. The pri-
mary evidence against Appellant was his agreed-upon stipulation of fact, out-
lining the details of his repeated assaults against AM on her breasts, buttocks,
and vulva, and his assaults against MB while they engaged in sexual activity.
Conversely, the court acknowledges Appellant presented an above-average
case in extenuation and mitigation. Appellant submitted 12 character letters,
received numerous awards and decorations, served overseas during his two
enlistments in the Navy, and received respectable ratings on his performance
reports. However, upon our review of the record, Appellant’s service record and
sentencing matters do not outweigh the aggravating evidence in this case.
Under the third and fourth factors, the materiality and quality of the evi-
dence in question, we recognize the admission of Prosecution Exhibit 4 legiti-
mately raises the question of how much of Appellant’s sentence was attributed
to the uncharged misconduct alleged therein, as opposed to the actual offenses
to which he was found guilty. Nonetheless, considering only the part in error,
and in conducting our de novo review, we conclude the military judge did ex-
actly what she said she would do, in that she advised the parties she would
consider Prosecution Exhibit 4 “only for the narrow purpose of rebutting the
evidence presented by the [D]efense,” and that she would give the rebuttal ev-
idence “the weight, if any that is warranted.” Also, reviewing trial counsel’s
sentencing argument, counsel did not reference Prosecution Exhibit 4 or the
information contained within. Therefore, we find these factors weigh in the
Government’s favor.
Furthermore, because this was a court-martial by military judge alone, the
potential for unfair prejudice was substantially less than it would be in a trial
with members. We are satisfied that the military judge was able to sort
through the evidence, weigh it, and give it the appropriate weight it warranted.
Therefore, we find Appellant’s sentence was not substantially influenced by
this error, nor was there material prejudice to Appellant’s substantial rights.
B. Ineffective Assistance of Counsel
1. Additional Background
Appellant argues that trial defense counsel were ineffective for two rea-
sons: (1) they failed to object to portions of MB’s victim impact statement, and
(2) they failed to submit clemency matters pursuant to R.C.M. 1106. On the
14
United States v. Zapata, No. ACM 40048
matter of clemency, we have determined this issue is without merit and war-
rants no relief. See Matias, 25 M.J. at 361.8
With respect to MB’s victim impact statement, after the Government pre-
sented its sentencing case, MB read her unsworn statement to the court, say-
ing, in part, that Appellant “lied about being married,” that he “[took] ad-
vantage of [her] twice,” and that she “[would] always have to live with the ef-
fects of him sexually assaulting [her].” MB made these statements after the
sexual assault specifications were withdrawn and dismissed with prejudice.
Trial defense counsel did not object to MB’s written or oral unsworn state-
ments.
Appellant argues that during presentencing, both MB’s oral and written
statements—which included references to Appellant sexually assaulting her
and a claim that Appellant “lied about being married” when she was with
him—were admitted without objection from trial defense counsel.9 Appellant
argues he was prejudiced by trial defense counsel’s failure to object, in that
8 Appellant states that when notified of his right to submit matters, “he specifically
indicated that he did not waive his rights and he would be submitting clemency mat-
ters to the convening authority.” Appellant then argues the record is not substantially
complete, in that a clemency submission is “nowhere within the record of trial.” How-
ever, the record contains a 21 October 2020 submission to the convening authority by
trial defense counsel. In that submission, trial defense counsel requested the conven-
ing authority defer Appellant’s rank reduction and automatic forfeitures; trial defense
counsel also requested a waiver of automatic forfeitures for the benefit of Appellant’s
dependent children. This submission also included a handwritten letter by Appellant
to the convening authority, requesting “consideration [for] a reduced sentence.” In
their request, trial defense counsel stated, “[A]lthough a deferment and waiver request
is considered a clemency request, [Appellant] expressly reserves the right to submit
further clemency matters.”
In response to Appellant’s ineffective assistance of counsel claims, we ordered trial
defense counsel to provide declarations on this matter. See United States v. Jessie, 79
M.J. 437, 442–44 (C.A.A.F. 2020) (observing a Court of Criminal Appeals is allowed to
accept affidavits “when necessary for resolving claims of ineffective assistance of trial
defense counsel”). Our consideration is limited to determining whether a factfinding
hearing or other appellate relief is warranted. United States v. Ginn, 47 M.J. 236, 238
(C.A.A.F. 1997) (citations omitted). In a declaration responsive to our order, trial de-
fense counsel stated the 21 October 2020 submission was Appellant’s only request, and
that based on their advice, Appellant did not seek additional clemency. Having consid-
ered the declarations to resolve Appellant’s claim, we find the record is substantially
complete, as counsel did submit clemency matters on Appellant’s behalf and no addi-
tional matters were submitted for the convening authority to consider.
9 In her unsworn statement, MB wrote, “I first met [Appellant] almost four years ago.
He lied about being married at the time, but that is a minor detail compared to every-
thing else he has done.”
15
United States v. Zapata, No. ACM 40048
they allowed “uncharged misconduct that was not related to the charged of-
fenses in the victim impact statements.” Appellant believes there “was no stra-
tegic reason that defense counsel would not object to these matters contained
in MB’s statement.” Appellant claims trial defense counsel’s failure “freely per-
mitted the military judge to consider these statements and affected her view
of the charged offenses as well as [Appellant] as a whole.” Finally, Appellant
believes there was a reasonable probability that but for this error, he would
have received a “more favorable outcome as to sentence.”
2. Law
The Sixth Amendment10 guarantees an accused the right to effective assis-
tance of counsel. United States v. Gilley, 56 M.J. 113, 124 (C.A.A.F. 2001). We
review allegations of ineffective assistance de novo. United States v. Gooch, 69
M.J. 353, 362 (C.A.A.F. 2011) (citing United States v. Mazza, 67 M.J. 470, 474
(C.A.A.F. 2009)). In assessing the effectiveness of counsel, we apply the stand-
ard set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984), and begin
with the presumption of competence announced in United States v. Cronic, 466
U.S. 648, 658 (1984). Gilley, 56 M.J. at 124 (citing United States v. Grigoruk,
52 M.J. 312, 315 (C.A.A.F. 2000)). “[O]ur scrutiny of a trial defense counsel’s
performance is ‘highly deferential,’ and we make ‘every effort . . . to eliminate
the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate conduct from counsel’s perspective at the
time.’” United States v. Akbar, 74 M.J. 364, 379 (C.A.A.F. 2015) (omission in
original) (quoting Strickland, 466 U.S. at 689).
We will not second-guess reasonable strategic or tactical decisions by trial
defense counsel. Mazza, 67 M.J. at 475 (citation omitted). “Defense counsel do
not perform deficiently when they make a strategic decision to accept a risk or
forego a potential benefit, where it is objectively reasonable to do so.” United
States v. Datavs, 71 M.J. 420, 424 (C.A.A.F. 2012) (citations omitted). The bur-
den is on the appellant to demonstrate both deficient performance and preju-
dice. Id. (citation omitted).
We consider the following questions to determine whether the presumption
of competence has been overcome: (1) if the appellant’s allegations are true, is
there a reasonable explanation for counsel’s actions; (2) if the appellant’s alle-
gations are true, did defense counsel’s level of advocacy fall measurably below
the performance ordinarily expected of fallible lawyers; and (3) if defense coun-
sel was ineffective, is there a reasonable probability that, absent the errors,
there would have been a different result. Gooch, 69 M.J. at 362 (citing United
States v. Polk, 32 M.J. 150, 153 (C.M.A. 1991)). Regarding the last question,
10 U.S. CONST. amend. VI.
16
United States v. Zapata, No. ACM 40048
“[i]t is not enough to show that the errors had some conceivable effect on the
outcome;” instead, there must be a “probability sufficient to undermine confi-
dence in the outcome,” including “a reasonable probability that, absent the er-
rors, the factfinder would have had a reasonable doubt respecting guilt.”
Datavs, 71 M.J. at 424 (internal quotation marks and citations omitted).
3. Analysis
In response to Appellant’s assignment of error, we ordered and received
declarations from both trial defense counsel. Considering these declarations,
along with the assertions Appellant makes in his assignment of error, we con-
clude that Appellant has not overcome the presumption of competence of his
trial defense counsel.
Prior to his negotiated pretrial agreement, Appellant faced four specifica-
tions of sexual assault, specifically two specifications each of sexual assault
against MB and AM. However, on 9 October 2020, the day before Appellant’s
court-martial, the convening authority agreed to withdraw all specifications of
sexual assault, and a separate specification of assault consummated by a bat-
tery, upon announcement of sentence, in return for Appellant’s pleas of guilty
to the additional charge and specifications as discussed above. On the record,
the military judge stated that the “[D]efense’s proposed [pretrial agreement]
had been coordinated with both of the named victims, and that there was po-
tentially some support for the agreement.”
In his declaration, trial defense counsel, Major (Maj) GJ, noted that he re-
ceived an advance copy of MB’s written statement from her special victim’s
counsel (SVC) and returned the statement with “highlighted objections and
comments detailing the objections.” Maj GJ provided those objections as part
of his declaration. Maj GJ did not deem the reference to Appellant’s “[lying]
about being married” as objectionable; however, he did identify references to
sexual assault as objectionable “and included it in [his] review of the unsworn
statement returned to MB’s counsel.” Maj GJ recalled that when he discussed
the matter with MB’s counsel, “it was [the SVC’s] position that verbiage was
so important to [MB] to the point where removal of the wording could cause
her to pull her support of the plea agreement.” Maj GJ “decided it was in [Ap-
pellant’s] best interest to get the benefit of the pretrial agreement, as that was
his stated desired outcome.” Maj GJ weighed several factors, including,
the severity of the original charges, the fact [he] believed the risk
of conviction for the MB offenses was very high, and the severity
of the impact upon [Appellant’s] life afterwards should he be con-
victed of the original charges (to include a possible lengthy
prison sentence, likely sex offender registry, and a mandatory
dishonorable discharge).
17
United States v. Zapata, No. ACM 40048
Accordingly, Maj GJ “deemed the impact of MB’s inaccurate characterization
of the offenses as sexual assault in her unsworn statement to be negligible,”
and that a “seasoned military judge, who we presumed would know and follow
the law, would not be swayed in any way by the unartful characterization of
the offenses as sexual assault.” Ultimately, he believed “[i]t was clearly in [Ap-
pellant’s] best interest to allow the inaccurate characterization of the offenses
into the unsworn [statement] without objection rather than to risk the ex-
tremely beneficial plea deal falling apart after MB withdrew her support.” Maj
FC, Appellant’s other trial defense counsel, also provided a declaration that
was consistent with Maj GJ’s declaration.
We evaluate trial defense counsel’s performance not by the success of their
strategy, “but rather whether counsel made . . . objectively reasonable choice[s]
in strategy from the alternatives available at the [trial].” United States v.
Dewrell, 55 M.J. 131, 136 (C.A.A.F. 2001) (quoting United States v. Hughes, 48
M.J. 700, 718 (A.F. Ct. Crim. App. 1998)). In this instance, the record shows
trial defense counsel made strategic decisions that were objectively reasonable,
particularly given the amount of confinement Appellant could have received
had he litigated, and been found guilty of, specifications alleging sexual as-
sault, and the collateral consequences that would have followed such convic-
tions. The record shows trial defense counsel zealously and vigorously de-
fended their client at each stage of the proceedings. We find trial defense coun-
sel’s actions were reasonable, their performance was not measurably below
professional standards, and Appellant has failed to establish that relief is war-
ranted in his case under the theory of ineffective assistance of counsel. Accord-
ingly, we need not reach the question of whether there was a reasonable prob-
ability of a different result.
However, even assuming trial defense counsel were ineffective on this
point, we would conclude there is no reasonable probability there would have
been a different result absent the error. Appellant pleaded guilty to assaulting
MB by touching her vulva with his body on two separate occasions. Under
R.C.M. 1001(c), MB was permitted to make an unsworn statement to the court-
martial about those offenses. While the terms “assault” and “sexual assault”
may have precise legal definitions, we would not expect lay witnesses to be
versed in that precision. Given that the assault in this case involved an assault
on MB’s sexual organ—indeed, while she and Appellant were engaged in sex-
ual intercourse—the fact she characterized the offense as a sexual assault as
opposed to an assault consummated by a battery is wholly unsurprising. Mili-
tary judges are well versed in placing trial participants’ words in context, and
no persuasive argument can be made that the military judge in this case would
have sentenced Appellant differently had MB been more precise in naming the
offense at hand. This is especially the case here, where Appellant had been
charged with sexual assault but pleaded to lesser offenses as part of his pretrial
18
United States v. Zapata, No. ACM 40048
negotiations—a fact known to the military judge. We similarly perceive no re-
alistic chance that Appellant’s sentence was impacted by MB’s assertion that
Appellant lied about being married when he first met MB. Assuming this claim
is true, such conduct pales in comparison to Appellant’s charged offenses, and
MB told the military judge as much when she said the lie “is a minor detail
compared to everything else [Appellant] has done.” Therefore, even if trial de-
fense counsel were ineffective in not objecting to these matters in MB’s state-
ment, Appellant did not suffer prejudice.
C. Sentence Appropriateness
1. Additional Background
Appellant argues his sentence to a bad-conduct discharge, 14 months’ con-
finement, and reduction to the grade of E-1 is inappropriately severe for sev-
eral reasons, including: (1) that he “served his country with pride for over
[nine] years;” (2) that “[h]e also served his community as a firefighter, respond-
ing not only to fires, but to life-threatening events day in and day out for [six]
years;” (3) that he “took this first step toward rehabilitation when he pleaded
guilty to his offenses and expressed remorse” to MB and AM; (4) that “the Gov-
ernment was saved the time and expense of a litigated trial, and did not have
the burden of proving beyond a reasonable doubt that [Appellant] committed
the charged offenses;” and (5) that he “presented compelling sentencing evi-
dence.” Appellant does not believe he received “appropriate credit for his ac-
ceptance of responsibility, his remorse, and his excellent rehabilitative poten-
tial.”
2. Law and Analysis
We review issues of sentence appropriateness de novo. United States v.
Lane, 64 M.J. 1, 2 (C.A.A.F. 2006). Our authority to determine sentence appro-
priateness, “which reflects the unique history and attributes of the military
justice system, includes but is not limited to considerations of uniformity and
evenhandedness of sentencing decisions.” United States v. Sothen, 54 M.J. 294,
296 (C.A.A.F. 2001) (citations omitted). 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(d)(1), UCMJ, 10 U.S.C. § 866(d)(1).
“We assess sentence appropriateness by considering the particular appellant,
the nature and seriousness of the offense[s], the appellant’s record of service,
and all matters contained in the record of trial.” United States v. Anderson, 67
M.J. 703, 705 (A.F. Ct. Crim. App. 2009) (per curiam) (citations omitted). Alt-
hough we have great discretion to determine whether a sentence is appropri-
ate, we have no power to grant mercy. United States v. Nerad, 69 M.J. 138, 146
(C.A.A.F. 2010) (citation omitted).
19
United States v. Zapata, No. ACM 40048
The court acknowledges that based on his sentencing evidence, it appears
Appellant had a respectable career. However, we cannot overlook the numer-
ous and repeated assaults Appellant committed against his now ex-wife and a
former intimate partner. Appellant’s argument and analysis on appeal is sim-
ilar to his unsworn statements and the matters he provided during sentencing
and clemency. To the extent Appellant’s recitation of these prior arguments
amounts to another attempt at clemency, such matters are outside the author-
ized function of this court. See Nerad, 69 M.J. at 146. Furthermore, Appellant
faced up to 24 months in confinement, and although trial counsel argued for
the maximum amount of confinement Appellant could receive, Appellant was
only adjudged 14 months’ confinement for his crimes. Having reviewed the rec-
ord, we are confident the military judge gave Appellant’s mitigation and exten-
uation matters the due consideration they warranted. And “[w]hile these mat-
ters are appropriate considerations in clemency, they do not show [Appellant]’s
sentence is inappropriately severe.” See United States v. Aguilar, 70 M.J. 563,
567 (A.F. Ct. Crim. App. 2011). Having considered Appellant, the nature and
seriousness of his convicted offenses, and all matters contained in the record
of trial, to include all matters Appellant submitted in his case in extenuation,
mitigation, and clemency, we conclude the approved sentence, including a bad-
conduct discharge, is not inappropriately severe.
D. Timeliness of Appellate Review
1. Law
Whether an appellant has been deprived of his due process right to speedy
post-trial and appellate review, and whether constitutional error is harmless
beyond a reasonable doubt, are questions of law we review de novo. United
States v. Arriaga, 70 M.J. 51, 55–56 (C.A.A.F. 2011) (citing United States v.
Moreno, 63 M.J. 129, 135 (C.A.A.F. 2006)).
A presumption of unreasonable delay arises when appellate review is not
completed and a decision is not rendered within 18 months of the case being
docketed. Moreno, 63 M.J. at 142. If there is a Moreno-based presumption of
unreasonable delay or an otherwise facially unreasonable delay, we examine
the matter under 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) preju-
dice.” Moreno, 63 M.J. at 135 (citations omitted). In Moreno, the United States
Court of Appeals for the Armed Forces identified three types of prejudice aris-
ing from post-trial processing delay: (1) oppressive incarceration; (2) anxiety
and concern; and (3) impairment of a convicted person’s grounds for appeal and
ability to present a defense at a rehearing. Id. at 138–39 (citations omitted).
20
United States v. Zapata, No. ACM 40048
“We analyze each factor and make a determination as to whether that fac-
tor favors the Government or the appellant.” Id. at 136 (citation omitted).
Then, we balance our analysis of the factors to determine whether a due pro-
cess violation occurred. Id. (citing Barker, 407 U.S. at 533). “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. (citation omitted). However, where an ap-
pellant has not shown prejudice from the delay, there is no due process viola-
tion unless the delay is so egregious as to “adversely affect the public’s percep-
tion of the fairness and integrity of the military justice system.” United States
v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006).
Recognizing our authority under Article 66(d), UCMJ, we also consider if
relief for excessive post-trial delay is appropriate even in the absence of a due
process violation. See United States v. Tardif, 57 M.J. 219, 225 (C.A.A.F. 2002).
2. Analysis
Appellant’s case was docketed with the court on 11 March 2021. The overall
delay in failing to render this decision within 18 months is facially unreasona-
ble. See Moreno, 63 M.J. at 142. However, we determine no violation of Appel-
lant’s right to due process and a speedy appellate review. Appellant’s brief was
originally due to the court on 10 May 2021. However, he requested and received
11 enlargements of time, and ultimately submitted his assignments of error
brief on 5 May 2022—almost 14 months after his case was docketed with the
court. The Government filed its answer on 7 July 2022. We are issuing this
decision approximately three months after the Government filed its answer,
and approximately one month after the 18-month threshold for a facially un-
reasonable delay.
Analyzing the Barker factors, we find the delay is not excessively long un-
der the circumstances. As noted, Appellant received 11 enlargements of time
before submitting his brief. Moreover, Appellant has not asserted his right to
speedy appellate review or pointed to any particular prejudice resulting from
the presumptively unreasonable delay, and we find none. Finding no Barker
prejudice, we also find the delay is not so egregious that it “adversely affect[s]
the public’s perception of the fairness and integrity of the military justice sys-
tem.” See Toohey, 63 M.J. at 362. As a result, there is no due process violation.
In addition, we determine that Appellant is not due relief even in the ab-
sence of a due process violation. See Tardif, 57 M.J. at 225. Applying the factors
articulated 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), we find the delay in appellate review justi-
fied and relief unwarranted.
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United States v. Zapata, No. ACM 40048
III. CONCLUSION
The findings and sentence as entered are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred. Ar-
ticles 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