United States v. Tucker ( 2015 )

UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
THE COURT EN BANC 1
UNITED STATES OF AMERICA
v.
JASON T. TUCKER
STAFF SERGEANT (E-6), U.S. MARINE CORPS
NMCCA 201400135
GENERAL COURT-MARTIAL
Sentence Adjudged: 15 March 2013.
Military Judge: Col G.W. Riggs, USMC.
Convening Authority: Commanding General, 2d Marine
Division, Camp Lejeune, NC.
Staff Judge Advocate's Recommendation: Maj J.N. Nelson,
USMC.
For Appellant: LT Jessica Ford, JAGC, USN; LT Jacqueline
Leonard, JAGC, USN.
For Appellee: LT James Belforti, JAGC, USN.
25 August 2015
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OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.
FISCHER, Senior Judge:
A general court-martial consisting of officer and enlisted
members convicted the appellant, contrary to his pleas, of five
specifications of selling military property of a value greater
than $500.00 and five specifications of stealing military
property of a value greater than $500.00 in violation of
1
Judge KING and Judge PALMER did not participate in the decision of this
case.
Articles 108 and 121, Uniform Code of Military Justice, 10
U.S.C. §§ 908 and 921. The members sentenced the appellant to
reduction to pay grade E-1, a $7,900.00 fine, confinement for
twelve months (if the fine was unpaid), a reprimand, and a bad-
conduct discharge. In his action the convening authority (CA)
excepted the number “4” and substituted the number “2” in front
of the words “Enhanced Small Arms Protective Inserts” (E-SAPI
plates) in Specification 4 of Charge II. 2 As a matter of
corrective action and clemency, the CA approved only so much of
the sentence as provided for a bad-conduct discharge, a fine of
$5,000.00, and confinement in excess of eight months if the fine
was unpaid. 3
The appellant raises nine assignments of error (AOE) and we
specified an additional AOE. 4 After reviewing the record of
2
See footnote 15.
3
The appellant paid the fine and, thus, served no confinement.
4
The appellant raises the following AOEs:
I. Is the evidence factually and legally sufficient to sustain the
appellant’s convictions?
II. Was it an abuse of discretion to find the military judge was not
disqualified due to an appearance of bias at trial?
III. Did the military judge err in admitting Prosecution Exhibits 1 through
36 into evidence?
IV. Was it reversible error for the military judge to permit the trial
counsel to cross-examine defense character witnesses with questions about the
charges the appellant was facing?
V. Did the military judge plainly err in allowing a witness to provide
hearsay testimony in the form of an inquiry into an unknown database?
VI. Should we remand for a sentence rehearing when the CA disapproved
findings that the appellant stole E-SAPI plates issued to Cpl F and Cpl F was
the lone government witness in presentencing?
VII. Should the cumulative error doctrine apply to this case?
VIII. Did the Staff Judge Advocate (SJA) err in failing to advise the CA on
a duty to reassess the appellant’s sentence and in failing to serve a new
matter on the trial defense counsel?
IX. Did the CA violate the appellant’s right to a speedy post-trial review
when the CA’s action was completed 212 days after the trial was completed?
2
trial, the pleadings of the parties and their responses to the
specified issue, we find partial merit in the appellant’s first
AOE contesting the factual sufficiency of his larceny
convictions. After taking corrective action in our decretal
paragraph and reassessing the sentence, we conclude that the
remaining findings and the reassessed sentence are correct in
law and fact and that no error materially prejudicial to the
substantial rights of the appellant remains. Arts. 59(a) and
66(c), UCMJ.
Background
From October 2010 through March 2012, the Naval Criminal
Investigative Service’s (NCIS) Special Operations Unit conducted
an undercover operation, referred to as “Operation Sweet Tea.”
The objective of this operation was “to slow down the theft and
sale of military property, specifically Marine Corps property
coming off of Camp Lejeune,” 5 and address “serious problems with
the accountability and inventory of items that were issued by
the Marine Corps.” 6 NCIS agents went undercover posing as
potential buyers for military-type property presumably stolen
from the Marine Corps. These transactions often began with a
seller posting an online advertisement for military-type
property and an NCIS agent responding to the advertisement. The
agent would then attempt to set up a meeting with the seller to
make a controlled purchase of the items offered for sale.
The first transaction involving the appellant was arranged
after the appellant placed an advertisement for such items on a
local internet auction site. A total of five such transactions
occurred on 29 December 2010, 5 January 2011, 14 January 2011,
10 February 2011 and 1 April 2011. NCIS purchased the following
for a total of $7,900.00: 17 E-SAPI plates of varying sizes; 1
Modular Tactical Vest (MTV); 3 plate carriers; 2 pairs of Night
Vision Goggles (NVGs); 1 Surefire flashlight kit and 1 Surefire
Specified Issue: Whether the evidence adduced at trial supports a conviction
for each of the five larceny specifications notwithstanding the Government
alleging that each larceny was committed “on an unknown date?”
We address AOEs I, II and IX and find the remaining AOEs to be without merit.
United States v. Clifton, 35 M.J. 79, 81-82 (C.M.A. 1992). The specified
issue is mooted by our remedial action.
5
Record at 131.
6
Id. at 174.
3
flashlight. 7 At least 16 of the original 25 items bore at least
one of the following identifying marks: legible serial numbers;
legible National Stock Numbers (NSN) 8; or a contract number. 9
At trial, the Government’s evidence centered on the
testimony of NCIS Special Agent (SA) D and two Marines who had
been issued three of the traceable, serialized E-SAPI plates
sold to NCIS on 14 January 2011, along with the testimony of
Defense Logistics Agency (DLA) Supervisory Special Agent (SSA)
G. Additionally, the Government introduced video recordings of
the controlled purchases, the final four of which contained
audio.
SA D testified that two of the three E-SAPI plates with
identifiable serial numbers were traced back to a Marine from
the appellant’s unit, 2d Light Armored Reconnaissance Battalion
(2d LAR), Corporal (Cpl) R. 10 Cpl R testified that his E-SAPI
plates 11 went missing “somewhere around February 2010 to February
2011” from the “NCO office.” 12 He could not specifically recall
in what month this occurred. Cpl R testified that he completed
a missing gear statement shortly after the property went
missing, however this document was not introduced at trial.
The other serialized E-SAPI plate was traced back to
another 2d LAR Marine, Cpl F. 13 Cpl F testified that his gear
went missing from his wall locker when it was broken into around
9 February 2011. 14 Yet, the evidence suggests that Cpl F’s E-
7
We note that NCIS purchased a Surefire flashlight, but the appellant is
charged with selling a “Surefire flashlight kit” under Charge I,
Specification 4.
8
An NSN is used to identify a type or particular brand of item purchased by
the U.S. Government and maintained in the Government’s supply chain.
9
Some of the photos in the record are of such poor quality that identifying
information could not be discerned. With other items, the serial number was
unreadable because it had had worn off or was marked up in such a way as to
obscure the number.
10
PE 13, 16; Record at 170-71.
11
Cpl R testified that other items besides the E-SAPI plates also went
missing, to include “my flak and Kevlar and all the magazine pouches, grenade
pouch, IFAC, dump pouch.” Record at 240.
12
Id.
13
PE 15; PE 38; Record at 171.
14
Record at 251; PE 38.
4
SAPI plate was among the items sold to NCIS on 14 January 2011 –
one month prior to when Cpl F testified the item was taken from
his locker. 15
While none of the remaining items charged were directly
linked to the U.S. military or a U.S. service member, the
prosecution offered the testimony of a SSA G and a printout from
WebFLIS 16, a DLA database, to prove the items recovered with an
NSN number were “military property” because such items were
maintained as “property of the Department of Defense” (DoD) and
under “Government control.” 17
SSA G further testified that the same recovered items were
assigned a Code D designation which requires that the item be
demilitarized prior to disposal. 18 According to SSA G, this
means that such items “[b]y regulation [are] forbidden from
leaving government control intact and usable.” 19 On cross-
examination however, SSA G admitted that NSN-linked items have
left Government control through legitimate transfer mechanisms
and sometimes for unexplained reasons. 20
During the course of the transactions, the appellant made
multiple comments to the undercover agents indicating that he
obtained some of the equipment he was selling from sources
within the Marine Corps.
The appellant testified in his own defense at trial and
maintained that he acquired all of the items he sold through an
online resale site, at local flea markets, or from other
15
PE 15. In a post-trial claim of legal error, the appellant’s trial defense
counsel argued impossibility as it related to the appellant’s alleged theft
of Cpl F’s E-SAPI plates. Based on this, the staff judge advocate
recommended that the CA except the number “4” and substitute the number “2”
from Specification 4 of Additional Charge II to reflect that the CA approved
a finding of the appellant’s larceny of 2 vice 4 E-SAPI plates alleged in
this specification. The CA’s action followed this recommendation and
therefore we conclude the CA disapproved the appellant’s conviction for
larceny of the E-SAPI plates issued to Cpl F.
16
PE 39.
17
Record at 211, 220-22.
18
Id. at 219; 222.
19
Id. at 221.
20
Id. at 221-23.
5
Marines. The appellant specifically testified that he received
the first pair of NVGs he sold from Gunnery Sergeant A in 2008
and that those type of NVGs had not been issued in the Marine
Corps since 2003. The appellant also testified to working with
Sergeant (Sgt) C to acquire and sell property. The appellant
stated that Sgt C similarly acquired tactical gear from the same
online resale site the appellant frequented and when the
appellant found a buyer for this equipment, Sgt C would provide
the appellant with gear to sell and they would share the profit.
The appellant denied stealing any of the items he sold and
testified that he “never thought it was stolen it was just, you
know, old DRMO 21 stuff that was either excess or no one had a
need for anymore.” 22
Additional facts necessary for the resolution of particular
assignments of error are included below.
Factual Sufficiency
We review issues of factual sufficiency de novo. United
States v. Beatty, 64 M.J. 456, 459 (C.A.A.F. 2007).
The test for factual sufficiency is “whether, after
weighing the evidence in the record of trial and making
allowances for not having personally observed the witnesses, [we
are] convinced of the [appellant]’s guilt beyond a reasonable
doubt.” United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987).
In conducting this unique appellate role, we take “a fresh,
impartial look at the evidence,” applying “neither a presumption
of innocence nor a presumption of guilt” to “make [our] own
independent determination as to whether the evidence constitutes
proof of each required element beyond a reasonable doubt.”
United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).
Our factual sufficiency determination is limited to a review of
the “entire record,” meaning evidence presented at trial. United
States v. Bethea, 46 C.M.R. 223, 225 (C.M.A. 1973); see also
United States v. Reed, 54 M.J. 37, 44 (C.A.A.F. 2000).
21
DRMO refers to a DLA program to dispose of excess property from the
military services. DLA Disposition Services manages the DoD surplus property
sales program. Excess property that is not reutilized, transferred, or
donated may be sold to the public. The property, no longer needed by the
Government, is only to be sold if it is appropriate and safe for sale to the
general public.
22
Record at 278.
6
Larceny
“When it is established that the accused is in conscious,
exclusive, and unexplained possession of recently-stolen
property under such circumstances that innocent possession is
reasonably ruled out,” the factfinder is permitted to infer that
such possession “could have been acquired only by the
possessor's theft of that property.” United States v. Pasha, 24
M.J. 87, 90 (C.M.A. 1987) (quoting Pendergrast v. United States,
416 F.2d 776, 787 (D.C. Cir. 1969). The Government essentially
staked their larceny case on this permissible inference, arguing
in closing “[t]here was a taking of the property ... because the
U.S. Government, who owns the property, no longer had the
property. It was in the control and custody of the accused.” 23
In conducting our review pursuant to Article 66(c), UCMJ,
and making allowances for not having seen or heard the
witnesses, we simply find factually insufficient evidence to
infer that the appellant’s possession of the property
necessarily resulted from his theft. Even setting aside the
appellant’s contention that he acquired the property through
lawful means, the Government produced only minimal evidence that
any of the property items were “recently” stolen or missing.
The notable exception being the E-SAPI plates originally issued
to Cpl R. However, Cpl R’s testimony was no more specific than
that his E-SAPI plates went missing from the NCO office sometime
between February 2010 and February 2011 and that he filed a
missing gear statement. 24 The Government’s paucity of evidence
as to when and how the appellant acquired possession of the
items is highlighted by specifications that allege the appellant
committed the larcenies “at an unknown location, on an unknown
date.” The appellant sold items commonly used by the military
and issued to Marines. The Government essentially argued that
since such items were not supposed to leave DoD control and the
appellant possessed them, he therefore must have stolen the
items. Considering the record before us, we find this argument
unpersuasive and are not convinced of the appellant’s guilt
23
Id. at 395.
24
Cpl R’s missing gear statement was not offered at trial however, a missing
gear statement from Cpl R was included in the appellant’s post-trial
submissions to the CA. The statement indicates that Cpl R, along with twelve
other Marines, was directed to give up his MTV (including E-SAPI plates) to
the Afghanistan National Border Patrol and the 2d LAR Unit Interpreters prior
to redeploying from Afghanistan in 2009. As we are limited to the evidence
presented at trial in conducting our Article 66(c) review of the court-
martial findings, (see Beatty, 64 M.J. at 458 n.4), we have not considered
the appellant’s post trial submissions in our factual sufficiency review.
7
beyond a reasonable doubt as to any of the five specifications
under Charge II.
Wrongful Sale of Military Property
The appellant also avers that the Government presented
insufficient evidence to prove that the items the appellant sold
to the NCIS undercover agents were “military property” at the
time the transactions were completed. Under Article 108,
“[m]ilitary property is all property, real or personal, owned,
held, or used by one of the armed forces of the United States. .
. . It is immaterial whether the property sold . . . had been
issued to the accused, to someone else, or even issued at all.”
MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), Part IV, ¶ 32c(1).
“In a general sense, all property purchased with federal funds
and owned or held by a service is military property.” United
States v. Simonds, 20 M.J. 279, 280 (C.M.A. 1985) (holding
merchandise from a ship’s store was military property) (citation
omitted); cf. United States v. Schelin, 15 M.J. 218, 220
(C.M.A. 1983) (holding retail merchandise of the Army and Air
Force Exchange Service was not “military property of the United
States”).
The Government relied upon the following circumstantial
evidence to prove the items were military property:
(1) statements the appellant made to the undercover agents
during the sale transactions; (2) identifying markings on the
property; (3) the appearance and tactical nature of the
property; (4) testimony from SA G about the proper
demilitarization of such property; (5) several items with
scratched over serial numbers rendering them unreadable; and (6)
three of the E-SAPI plates with legible serial numbers that were
traced to items issued to Cpl R and Cpl F. With the exception
of the flashlight kit 25 and flashlight 26, we are convinced beyond
a reasonable doubt that the items the appellant sold to
undercover NCIS Agents on five separate occasions between
December 2010 and April 2011 were military property. 27
25
Prosecution Exhibit 18.
26
PE 24.
27
PEs 18 and 24 display no visible markings indicating the items are U.S.
Government property. The Government presented no evidence to establish the
items as tactical military equipment. SSA G did not testify regarding the
flashlight kit or flashlight and they were not listed on the Webflis document
entered into evidence. After selling a flashlight kit to SA D on 14 January
2011, the appellant told him “I don’t know anything about Surefires, but if
you’re saying it’s CTEP, I’m pretty sure we can get it.” Record at 152. SA D
8
NVGs, Plate Carriers and Modular Tactical Vest, and E-SAPI
plates
The appellant sold a single pair of NVGs 28 at each of the
controlled buys on 5 January and 10 February. During the first
transaction the appellant, referring to the NVGs, told SA D,
“[p]retty much it is refurbished, I mean, we go get like
aftermarket parts to repair on deployment. So we piece them
together so it is not like a serialized piece of gear. So we
will stockpile and like some of the base units. Once we get
enough to make an extra one, you know, we will make an extra
one.” 29 The appellant then later told SA D during the same
transaction, “I mean. It’s kind of stupid to say, but I’m
always worried about selling some of this stuff to, you know,
shady people, you know dirtbags. . . .” 30
The three serialized E-SAPI plates admitted into evidence
were issued to Marines belonging to the appellant’s unit. All
but one of the E-SAPI plates introduced were marked “U.S.” and
eight of them looked virtually identical to the serialized
plates, with the exception that the serial numbers on those
eight were obscured. The remaining six looked similar, but were
smaller side E-SAPI that lacked serial numbers. SSA G testified
that all of this equipment, to include the MTV and plate
carriers, was listed in WebFLIS and carried a demilitarization
code “D”, meaning the items were prohibited from leaving
Government control intact and usable. On their face, the items
are clearly tactical gear of the type and character issued to
military personnel, a fact recognized by the appellant when he
expressed reservations about selling the equipment to the wrong
sort of people.
The appellant alleges the Government presented insufficient
evidence to prove that the items were military property because
they were, by and large, not traced back to the Marine Corps
testified that CTEP “is another gear warehouse for the Marine Corps such as
CIF, the Consolidated Issuance Facility.” Id. On 10 Feb 2011, the appellant
sold a flashlight to SA D. We do not find the appellant’s statement
concerning “Surefires” sufficient to prove the flashlight kit and flashlight
he sold were military property. In short, we are not convinced that the
Government proved the flashlight kit and flashlight entered into evidence
were military property at the time the appellant sold the items.
28
PE 9 and PE 22.
29
Record at 140-141.
30
Id. at 142.
9
and, despite the items having a demilitarization code “D”, SSA G
conceded that such items have left military control through
illegal means or by mistake in the past. The members clearly
rejected the appellant’s contention at trial and found that the
items were military property and the appellant knowingly and
wrongfully sold the items. We agree with respect to all the
items, excepting PE 18 and PE 24, and are convinced beyond a
reasonable doubt of the appellant’s guilt to the specifications
under Charge I.
Judicial Bias
Approximately five weeks following adjournment of the
appellant’s court-martial, the trial defense team filed a
docketing motion requesting a post-trial Article 39(a), UCMJ,
session to address the military judge at the appellant’s court-
martial, Colonel (Col) Riggs, continued participation in the
case. 31 This defense request was prompted by Col Riggs self-
recusal in a separate case based in part on interactions between
Col Riggs and the military defense counsel, who also represented
the appellant. 32 After receiving a court response to their
docketing motion, the defense team filed a motion for Col Riggs
to recuse himself from further participation in the appellant’s
case. 33
Col D. J. Daugherty, then-Chief Judge of the Navy-Marine
Corps Trial Judiciary, detailed himself to conduct a post-trial
hearing on the appellant’s motion. Following that hearing,
during which Col Riggs testified, Col Daugherty ruled that “in
the interests of justice and in order to enable the full and
free exercise of the post-trial due process rights of the
accused, this case must be transferred to a new judge for any
post trial judicial matters.” 34 Col Daugherty also ruled,
“[t]hat the defense has failed to establish a reasonable factual
basis for disqualification of Col Riggs during the trial phase
of this case.” 35 The defense then filed a motion on 28 June 2013
to set-aside the findings due to the disqualification of Col
Riggs or, in the alternative, for a mistrial under RULE FOR COURTS-
31
Appellate Exhibit L.
32
The hearing in the separate case took place three weeks after the
appellant’s court-martial adjourned.
33
AE LIV.
34
AE LXIII at 12.
35
Id.
10
MARTIAL 915, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.). 36
Following another post-trial Article 39(a) session, Col
Daugherty denied the defense motion in a written ruling wherein
he stated:
Based on a complete reading of the verbatim record of
trial, an analysis of both the number of objections,
the rulings, the language used in his rulings and the
tact Judge Riggs took with both trial and military
defense counsel and his tact with Mr. Beal, and upon
reflection of each of the defense allegations and the
testimony of Judge Riggs, the court finds beyond a
reasonable doubt that in the context of the entire
trial, a reasonable man knowing all the facts and
circumstances would not doubt the legality, the
fairness and the impartiality of Judge Riggs during
the court-martial. 37
In this assignment of error, the appellant reiterates his
post-trial challenge to set aside the findings due to the
disqualification of Col Riggs to preside at his court-martial.
We find that Col Daugherty did not abuse his discretion in
denying the defense motion.
“‘An accused has a constitutional right to an impartial
judge.’” United States v. Butcher, 56 M.J. 87, 90 (C.A.A.F.
2001) (quoting United States v. Wright, 52 M.J. 136, 140
(C.A.A.F. 1999)) (additional citations omitted). R.C.M. 902(a),
provides that “a military judge shall disqualify himself or
herself in any proceeding in which that military judge’s
impartiality might reasonably be questioned.” The decision of a
military judge on the issue of recusal is reviewed on appeal for
abuse of discretion. United States v. Norfleet, 53 M.J. 262,
270 (C.A.A.F. 2000). In reviewing a military judge’s ruling on
a recusal motion, we consider the facts and circumstances under
an objective standard. Butcher, 56 M.J. at 91. The test is
whether there was “‘[a]ny conduct that would lead a reasonable
man knowing all the circumstances to the conclusion that the
judge’s impartiality might reasonably be questioned . . . .”
Id. (quoting United States v. Kincheloe, 14 M.J. 40, 50 (C.M.A.
1982)) (additional citation and internal quotation marks
omitted).
36
AE LXIV.
37
AE LXXI at 14.
11
The appellant now alleges Col Daugherty abused his
discretion in the following three ways: (1) he misapplied the
law in stating, “a reasonable man would see that Judge Riggs was
not the finder of fact or the determiner of the sentence in this
case” 38 because a military judge disqualified to sit in a judge
alone trial is equally disqualified to preside over a members
trial; (2) his ruling omitted an exchange where the military
judge responded to an objection by the assistant trial counsel
that the military defense counsel “is testifying” by stating,
“and arguing with the witness, so sustained”; and (3) his ruling
was overly reliant on the failure of the trial defense team to
challenge the military judge or object further to his actions
during the course of the trial. 39
Col Daugherty’s reference to the military judge not being
the fact finder or sentencing authority in the appellant’s court
martial was part of a seven-page “analysis and discussion”
section in his written ruling and was one of many factors he
cited in evaluating the overall appearance of fairness of the
appellant’s court-martial. We do not interpret the statement as
a finding that Col Riggs would have been disqualified from
presiding over a judge-alone trial or espousing law contrary to
Sherrod. We do not find it to be a central factor in Col
Daugherty’s ruling and even if we had found that he erred in
making the reference we would also find it to be harmless error.
In his written ruling, Col Daugherty cited to multiple
occasions in the record where Col Riggs engaged in semi-
contentious exchanges with counsel for both sides, in front of
members and also outside their presence. Though Col Daugherty
did not endorse the judicial temperament Col Riggs displayed
during the trial 40 he ultimately concluded Col Riggs interactions
with counsel did not reflect an abandonment of his impartial
judicial role. We agree and note that “remarks, comments, or
38
Appellant’s Brief of 2 Jun 2014 at 23 (citing United States v. Sherrod, 26
M.J. 30, 33 (C.M.A. 1988)).
39
We find this contention unpersuasive as the “[f]ailure of the defense to
challenge the impartiality of a military judge may permit an inference that
the defense believed the military judge remained impartial.” United States
v. Burton, 52 M.J. 223, 226 (C.A.A.F. 2000) (citation omitted).
40
Col Daughtery stated, “[t]his ruling should not be taken as a tacit
endorsement of Judge Riggs’ deportment, conduct or comments to counsel.
Judge Riggs could have done better in his deportment, he could have been
milder or more courteous with all the counsel and he could have taken greater
care to ensure that all his comments and actions appeared just at all times.”
AE LXXI at 14.
12
rulings of a judge do not constitute bias or partiality, ‘unless
they display a deep-seated favoritism or antagonism that would
make fair judgment impossible.’” United States v. Quintanilla,
56 M.J. 37, 44 (C.A.A.F. 2001).
In considering the facts before us, including Col
Daugherty’s precautionary action to replace Col Riggs post-
trial, we find that no reasonable observer, fully cognizant of
the pertinent facts, would conclude that this appellant did not
receive a fair trial from an impartial judge.
Post-Trial Delay
Whether an appellant has been deprived of his due process
right to a speedy appellate review is a question of law we
review de novo. When such delays occur, claims of due process
violations caused by the delay are reviewed under the four-part
test laid out in Barker v. Wingo, 407 U.S. 514, 530 (1972).
United States v. Moreno, 63 M.J. 129, 135 (C.A.A.F. 2006). In
such analysis, we balance the (1) length of delay; (2) reasons
for the delay; (3) appellant’s assertion of the right to timely
review and appeal; and (4) prejudice. Id. No one factor is
determinative and the court will decide whether each factor
favors the Government or the appellant. Id. at 136.
A due process analysis of post-trial delay begins with a
determination whether the delay in question is facially
unreasonable. Id. at 135-36. If the period between completion
of the trial and the CA’s final action is greater than 120 days,
it is presumed to be a facially unreasonable delay. Id. at 142.
The length of delay between the completion of the court-martial
on 8 August 2013 and the CA’s Action on 20 March 2014 totaled
212 days. As such, the delay in this case is unreasonable on
its face, triggering a full Barker/Moreno analysis. See id.
The presumption of unreasonableness can be overcome by a
showing of legitimate, case-specific circumstances. Id. at 142-
43; see also United States v. Arriaga, 70 M.J. 51, 56 (C.A.A.F
2011). Here, the staff judge advocate (SJA) completed his
recommendation (SJAR) on 4 November 2013 and eleven days later
the appellant’s detailed defense counsel submitted a 122-page
response alleging thirteen legal errors. The SJA provided a
detailed addendum to his original SJAR on 20 January 2014,
addressing the appellant’s allegations of legal error. The
detailed counsel responded on 29 January 2014 by alleging
additional legal errors. The SJA then issued a second addendum
on 7 March 2014, in which he recommended the CA disapprove a
13
portion of the findings, 41 reduce the adjudged fine by $1003.59
to account for the partial disapproval of the findings, and
further reduce the fine by $1896.42 as a matter of clemency to
account for the post-trial delay. Eleven days later, detailed
counsel again responded by alleging numerous legal errors,
stating the recommended clemency was inadequate and maintaining
that a sentencing rehearing was required. The CA acted on 20
March 2014 and explained that post-trial processing delay
resulted from the lengthy record of trial, the time required for
his SJA to carefully review the record and address the multiple
submissions from the appellant alleging legal error and
requesting clemency, base closings due to inclement weather and
numerous federal holidays. Here we find the extensive post-
trial review was the primary factor that caused the delay.
Next, this court looks at whether the appellant objected to
the delay or asserted his right to timely review. See Arriaga,
70 M.J. at 57. In the detailed counsel’s 29 January 2014
response to the first addendum to the SJAR, he complains of
post-trial delay.
When analyzing the fourth factor, prejudice, the court
should consider three interests in a prompt appeal:
(1) prevention of oppressive incarceration; (2) minimization of
anxiety and concern of those awaiting the outcome of their
appeals; and, (3) limitation of the possibility that a convicted
person’s grounds for appeal, and his or her defenses in case of
reversal and retrial, might be impaired by the delay. Moreno,
63 M.J. at 138-41. The appellant was adjudged contingent
confinement, which he did not serve. For the second sub-factor,
the appellant must demonstrate he suffered a “‘particularized
anxiety or concern that is distinguishable from the normal
anxiety experienced by prisoners awaiting an appellate
decision.’” Arriaga, 70 M.J. at 58 (quoting Moreno, 63 M.J. at
140). Here, assuming the appellant’s general complaint of
anxiety about waiting for the check to be cashed to pay his fine
meets the “particularized” requirement, we find this was
ameliorated by the CA’s reduction of the appellant’s fine
amount. Finally, in light of our remedial action, we find no
prejudice on the third sub-factor addressing retrial.
Considering the facts before us, we find the financial
relief the CA provided the appellant in the form of approving a
reduced fine amount satisfied any violation caused by post-trial
delay.
41
See Footnote 15.
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Sentence Reassessment
Because of our action on the findings, we will reassess the
sentence in accordance with the principles set forth in United
States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006), United States v.
Cook, 48 M.J. 434, 438, (C.A.A.F. 1998), and United States v.
Sales, 22 M.J. 305, 307-09 (C.M.A. 1986). Although a “‘dramatic
change in the penalty landscape’ gravitates away from the
ability to reassess” a sentence, United States v. Buber, 62 M.J.
476, 479 (C.A.A.F. 2006) (quoting United States v. Riley, 58
M.J. 305, 312 (C.A.A.F. 2003)), we ultimately find no such
change here.
While our decision reduces the maximum possible punishment
from confinement for 100 years to confinement for 50 years, both
punishments are so far removed from the approved sentence as to
render the difference legally insignificant. More importantly,
nothing in our decision changes the evidence properly in the
record for sentence determination. We specifically find that
Cpl F’s testimony concerning the negative financial impact
caused by his missing E-SAPI plate would have been equally
admissible since the appellant remains convicted of knowingly
and wrongfully selling that military property. Finally, the
facts adduced on the affirmed charge and specifications provide
ample justification for the approved sentence.
Conclusion
The findings of guilty to Charge II and all specifications
thereunder are set aside and Charge II and its specifications
are dismissed with prejudice. Additionally, we except the words
“a M962 Surefire Flashlight kit” from Specifications 3 and 4
under Charge I. We affirm the remaining findings, as excepted,
and the sentence as approved by the CA.
For the Court
R.H. TROIDL
Clerk of Court
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