United States v. Vanhise

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 38882
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UNITED STATES
Appellee
v.
Devin J. VANHISE
Airman First Class (E-3), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 13 February 2017
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Military Judge: Joshua E. Kastenberg (sitting alone).
Approved sentence: Dishonorable discharge, confinement for 46
months, forfeiture of all pay and allowances, and reduction to E-1.
Sentence adjudged 30 April 2015 by GCM convened at Scott Air Force
Base, Illinois.
For Appellant: Major Thomas A. Smith, USAF; Captain Annie W. Mor-
gan, USAF.
For Appellee: Colonel Katherine E. Oler, USAF; Major Jeremy D.
Gehman, USAF; Gerald R. Bruce, Esquire.
Before MAYBERRY, SPERANZA, and JOHNSON, Appellate Military
Judges.
Judge SPERANZA delivered the opinion of the court, in which Senior
Judge MAYBERRY and Judge JOHNSON joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 18.4.
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United States v. Vanhise, No. ACM 38882
SPERANZA, Judge:
A military judge sitting as a general court-martial convicted Appellant,
contrary to his pleas, of four specifications of sexual assault of a child, in vio-
lation of Article 120b, UCMJ, 10 U.S.C. § 920b; one specification of violating
18 U.S.C. § 2251(a) by persuading a minor to take part in sexually explicit
conduct for the purpose of transmitting a visual depiction of that conduct, in
violation of Article 134, UCMJ, 10 U.S.C. § 934; one specification of knowing
and wrongful possession of child pornography, in violation of Article 134,
UCMJ; and one specification of rape, in violation of Article 120, UCMJ, 10
U.S.C. § 920. 1 The military judge sentenced Appellant to a dishonorable dis-
charge, 46 months of confinement, forfeiture of all pay and allowances, and
reduction to the grade of E-1. The convening authority approved the adjudged
sentence.
On appeal, Appellant raises two assignments of error: (1) Whether a four-
day violation of the 120-day post-trial processing standard for forwarding the
record of trial for appellate review warrants modest relief under United
States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002); and (2) Whether Appellant is
entitled to new post-trial processing because it was improper for the staff
judge advocate (SJA) to solicit a victim statement from the parents of EB,
neither of whom meet the definition of a “victim.” 2 We find no prejudicial er-
ror and affirm.
1 The military judge acquitted Appellant of one specification of sexual abuse of a
child, in violation of Article 120b, UCMJ, 10 U.S.C. § 920b; one specification of abu-
sive sexual contact, two specifications of rape, and one specification of sexual assault,
all in violation of Article 120, UCMJ, 10 U.S.C. § 920; and, one specification of as-
sault consummated by a battery, in violation of Article 128, UCMJ, 10 U.S.C. § 928.
The military judge also found Appellant not guilty of one specification of sexual as-
sault of a child after granting the Defense’s motion for a finding of not guilty pursu-
ant to Rule for Courts-Martial (R.C.M.) 917.
2 In his brief, Appellant identified four other “potential issues” but did not brief them:
(1) WHETHER THE MILITARY JUDGE ERRED WHEN HE DE-
NIED THE DEFENSE MOTION TO DISMISS DUE TO DENIAL OF
APPELLANT’S RIGHT TO A SPEEDY TRIAL UNDER ARTICLE 10,
UCMJ.
(2) WHETHER THE MILITARY JUDGE ERRED WHEN HE DE-
NIED THE DEFENSE MOTION TO SUPPRESS EVIDENCE
SEIZED IN VIOLATION OF APPELLANT’S FOURTH AMEND-
MENT RIGHTS.
(Footnote continues on next page)
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United States v. Vanhise, No. ACM 38882
I. BACKGROUND
Appellant met EB online. Appellant coerced EB to engage in sexually ex-
plicit conduct—to include bestiality—to record this conduct, and to provide
the videos to him. Appellant demanded EB engage in more deviant behavior
and threatened to share videos of EB with others if she did not comply. Ap-
pellant eventually engaged in oral, vaginal, and anal sex with EB. Appellant
knew EB was 15 years old at the time.
Less than a year after beginning his illicit relationship with EB, Appel-
lant met BM at a base fitness center. Appellant then contacted BM through a
social media messaging application. After exchanging messages with Appel-
lant, BM agreed to meet him. On three occasions, Appellant and BM watched
movies in Appellant’s on-base dormitory room. The fourth time BM went to
Appellant’s room, Appellant anally raped her. BM was 16 years old at the
time.
(3) WHETHER THE MILITARY JUDGE ABUSED HIS DISCRE-
TION WHEN, AFTER CONDUCTING AN IN CAMERA REVIEW,
HE FAILED TO DISCLOSE RELEVANT EVIDENCE CONTAINED
IN B.M.’S MENTAL HEALTH RECORDS TO THE DEFENSE TO
BE USED DURING SENTENCING.
(4) WHETHER SPECIFICATION 2 OF ADDITIONAL CHARGE I IS
FACTUALLY SUFFICIENT.
Although not briefed by Appellant’s counsel, we have carefully considered each of
these “potential issues” in the course of our review pursuant to Article 66(c), UCMJ,
10 U.S.C. § 866(c). After considering the mandate under Article 10, UCMJ, 10 U.S.C.
§ 810, that the Government exercise reasonable diligence in bringing Appellant to
trial and carefully balancing the factors set forth in Barker v. Wingo, 407 U.S. 514,
533 (1972), we conclude that Appellant was not denied his right to a speedy trial. We
also find that the military judge did not abuse his discretion in confirming probable
cause existed to support the neutral and detached military magistrate’s issuance of
the contested search authorization. Furthermore, we note that during presentencing
the military judge disclosed all but one page of BM’s mental health records to the
parties and, during sentencing, permitted trial defense counsel to extensively cross-
examine BM on matters contained within those records. We find neither error nor
prejudice in the failure to disclose the one page. Finally, we find Appellant’s convic-
tion of anally raping BM legally and factually sufficient. Article 66(c), UCMJ.
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United States v. Vanhise, No. ACM 38882
II. DISCUSSION
A. Post-Trial Processing Delay
The convening authority took action in this case 124 days after the com-
pletion of Appellant’s trial. Accordingly, Appellant requests modest sentence
relief due to the “presumptively unreasonable post-trial delay in the conven-
ing authority taking action.” Appellant argues “[p]roviding relief in cases
such as this is important to effectuate the deterrence that the Court of Ap-
peals for the Armed Forces [CAAF] hoped Tardif and Moreno would produce.”
There are two steps to our analysis of whether Appellant is entitled to re-
lief. First, we determine whether the delay in this case amounts to a denial of
Appellant’s due process right to speedy post-trial review and appeal. United
States v. Moreno, 63 M.J. 129, 135 (C.A.A.F. 2006). Next, even if we find no
due process violation, we also consider whether this court should exercise its
power under Article 66(c), UCMJ, 10 U.S.C. § 866(c), to grant relief for exces-
sive post-trial delay. Tardif, 57 M.J. at 224.
In Moreno, the CAAF established a presumption of unreasonable post-
trial delay when the convening authority does not take action within 120
days of trial, when a record of trial is not docketed with the service court
within 30 days of the convening authority’s action, and when this court does
not render a decision within 18 months of the case being docketed. 63 M.J. at
142.
We consider four factors in determining whether post-trial delay amounts
to a violation of due process rights: (1) the length of the delay; (2) the reasons
for the delay; (3) the appellant’s assertion of his right to a timely review; and
(4) prejudice to the appellant. Id. at 135 (citing United States v. Jones, 61
M.J. 80, 83 (C.A.A.F. 2005) and United States v. Toohey, 60 M.J. 100, 102
(C.A.A.F. 2004)). “No single factor is required for finding a due process viola-
tion and the absence of a given factor will not prevent such a finding.” Id. (cit-
ing Barker v. Wingo, 407 U.S. 514, 533 (1972)). However, when an appellant
has not shown prejudice from the delay, there is no due process violation un-
less the delay is so egregious as to “adversely affect the public’s perception of
the fairness and integrity of the military justice system.” United States v.
Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006).
As described above, the lapse of time between completion of Appellant’s
trial and the convening authority’s action exceeded the Moreno standard by
four days, establishing a facially unreasonable delay. Moreno, 63 M.J. at 142.
Therefore, the next question we consider is whether Appellant has been prej-
udiced by the delay. Toohey, 63 M.J. at 362. Appellant does not identify any
“particularized anxiety or concern that is distinguishable from the normal
anxiety experienced by prisoners awaiting an appellate decision,” and we find
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United States v. Vanhise, No. ACM 38882
none. Moreno, 63 M.J. at 142. Although the Government’s explanation for the
delay is unsatisfactory as addressed below, balancing the remaining factors,
the relatively limited period in excess of the Moreno standard coupled with
the time in which the remaining phases were completed, convinces us the de-
lay was not so egregious as to undermine the appearance of fairness and in-
tegrity within the military justice system. Therefore, we find no due process
violation.
Next we consider whether Article 66(c), UCMJ, relief pursuant to Tardif
is appropriate. 57 M.J. at 224. We are guided by factors enumerated in Unit-
ed 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), with no single factor being dispositive. We are mindful of
our superior court’s admonition that “delay in the administrative handling
and forwarding of the record of trial and related documents to an appellate
court is the least defensible of all [post-trial delays] and worthy of the least
patience.” United States v. Dunbar, 31 M.J. 70, 73 (C.M.A. 1990) (internal
hyphens omitted).
Here, the 124 days that elapsed between trial and the convening authori-
ty’s action exceeded the Moreno standard by only four days. However, only 14
days elapsed between the convening authority’s action and docketing, com-
pared to Moreno’s standard of 30 days for a presumptively unreasonable de-
lay. Although Moreno specifically established distinct standards for trial-to-
action and action-to-docketing, and although efficiency in one phase of the
process does not necessarily excuse neglect in another phase, on the whole
the processing of Appellant’s case has not been subjected to severe post-trial
delay.
We must balance this absence of severe delay against the absence of any
valid explanation for the delay. The Government provided an affidavit from
the chief of military justice at the installation responsible for post-trial pro-
cessing of Appellant’s court-martial. This affidavit attributes delay to the
time trial defense counsel and the military judge took to review the record of
trial. Accordingly, the Government asserts:
While the majority of the delay was awaiting the military
judge’s corrections to the record of trial, since Appellant is
complaining of a mere 4-day violation of the Moreno standards
with no showing of prejudice, the trial defense counsel’s 25-day
delay in reviewing the record of trial must be given due weight
– as the government’s processing from sentencing to action
would only be 95 days [sic] without these defense delays.
The Government acknowledges “[t]he main source of delay was caused by
transcription and review of the record of trial,” but nonetheless invites us to
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United States v. Vanhise, No. ACM 38882
conclude that these circumstances weigh in its favor. As each of these circum-
stances was administrative in nature and within the control of the Govern-
ment, we decline to reach the Government’s conclusion.
Nevertheless, considering the remaining Gay factors we conclude no ex-
traordinary exercise of our Article 66(c) authority is warranted here. We dis-
cern no particular harm to Appellant from the delay and Appellant has as-
serted none. The delay has not lessened the disciplinary effect of Appellant’s
sentence. The delay has not adversely affected this court’s ability to review
Appellant’s case or grant him relief, if warranted. Taken as a whole, the cir-
cumstances do not move us to reduce an otherwise appropriate sentence ad-
judged by the military judge and approved by the convening authority in or-
der to solely effectuate some measure of deterrence.
B. SJA’s Solicitation of Victim Impact Statement
In a post-trial memorandum, the installation SJA advised EB, in perti-
nent part, as follows:
You may submit a statement in writing to the Convening Au-
thority’s SJA for consideration in advising the Convening Au-
thority. The choice is entirely yours. This statement could de-
scribe the impact [Appellant’s] crime had on your life. You may
also discuss whether you believe the Convening Authority
should approve the findings and sentence or grant some form of
clemency, if authorized by law. However, your statement
should not reference any crimes for which [Appellant] was not
convicted of by the court-martial in order to avoid prejudice to
his post-trial rights.
The memorandum included a first indorsement that EB was to sign and
indicate whether or not she was submitting a statement.
After the staff judge advocate’s recommendation (SJAR) was provided to
the convening authority and served upon Appellant and his trial defense
counsel, the installation SJA received a response to his memorandum to EB.
However, EB did not sign the first indorsement. Instead, EB’s mother signed
the first indorsement and indicated that an attached statement was submit-
ted. The attached statement was from the “Family of [EB]” and signed by
EB’s mother and father. The installation SJA confirmed receipt of the state-
ment and formally served a copy of the statement upon Appellant and his tri-
al defense counsel. In serving the statement upon Appellant and his trial de-
fense counsel, the installation SJA advised:
The submission of matters has not been presented to the con-
vening authority so that you can have an opportunity to review
it and reply to it, should you so desire…[Y]ou are invited to
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United States v. Vanhise, No. ACM 38882
make comment, including corrections or rebuttal, to any matter
in the recommendation believed to be erroneous, inadequate, or
misleading[.]
Appellant and his trial defense counsel acknowledged receipt of the
statement.
In Appellant’s request for clemency, his trial defense counsel did not ob-
ject to the submission of the statement, but addressed it as follows: “Regard-
ing the submission of matters by [EB’s] family, I simply ask that you consider
some error in their statement.” Trial defense counsel then accepted the in-
stallation SJA’s invitation and offered comments, rebuttal, and corrections to
the family’s statement. The convening authority’s SJA provided the state-
ment and Appellant’s clemency matters to the convening authority as at-
tachments to the Addendum to the SJAR.
Appellant now claims he “is entitled to new post-trial processing because
it was improper for the [SJA] to solicit a victim statement from the parents of
[EB], neither of whom meet the definition of a victim.” Accordingly, Appellant
argues:
Including this letter was error because the family of [EB] did
not meet the definition a victim of crime under Article 6(b). 3
The SJA [erred] when he allowed this letter to be submitted to
the convening authority. The submission of a letter from a non-
victim, requesting that Appellant’s sentence remain un-
changed, prejudiced Appellant. Appellant was further prejudic-
es [sic] when the SJA failed to properly advise the convening
authority to disregard the misleading information contained
within the letter.
The proper completion of post-trial processing is a question of law, which
this court reviews de novo. United States v. LeBlanc, 74 M.J. 650, 660 (A.F.
Ct. Crim. App. 2015) (citing United States v. Sheffield, 60 M.J. 591, 593 (A.F.
3 Under Article 6b, UCMJ, 10 U.S.C. § 806b, “the term ‘victim of an offense under
this chapter’ means an individual who has suffered direct physical, emotional, or pe-
cuniary harm as a result of the commission of an offense under this chapter (the Uni-
form Code of Military Justice)[.]” 10 U.S.C. § 806b(b); but see 10 U.S.C. § 806b(c) (“In
the case of a victim of an offense under this chapter…who is under 18 years of age
(but who is not a member of the armed forces), incompetent, incapacitated, or de-
ceased, the military judge shall designate a representative of the estate of the victim,
a family member, or another suitable individual to assume the victim's rights under
this section.”) (Emphasis added).
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United States v. Vanhise, No. ACM 38882
Ct. Crim. App. 2004)). “If defense counsel does not make a timely comment on
an omission [or error] in the SJA's recommendation, the error is waived un-
less it is prejudicial under a plain error analysis.” United States v. Scalo, 60
M.J. 435, 436 (C.A.A.F. 2005) (citing Rule for Courts-Martial (R.C.M.)
1106(f); United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000)). Under a plain
error analysis, Appellant must persuade this court that: “(1) there was an er-
ror; (2) it was plain or obvious; and (3) the error materially prejudiced a sub-
stantial right.” Id. (quoting Kho, 54 M.J. at 65).
To meet the third prong of the plain error test in the context of a post-trial
recommendation error, whether that error is preserved or is otherwise con-
sidered under the plain error doctrine, Appellant must make “some colora-
ble showing of possible prejudice.” Id. at 436–37 (quoting Kho, 54 M.J. at 65).
“The low threshold for material prejudice with respect to an erroneous post-
trial recommendation reflects the convening authority’s vast power in grant-
ing clemency and is designed to avoid undue speculation as to how certain
information might impact the convening authority’s exercise of such broad
discretion.” Id. at 437. While the threshold is low, there must be some colora-
ble showing of possible prejudice. Id.
The SJAR may include any additional matters deemed appropriate by the
convening authority’s SJA. R.C.M. 1106(d)(5). “Such matter may include mat-
ters outside the record.” Id. Before taking action, the convening authority
may consider “[s]uch matters as the convening authority deems appropriate.
However, if the convening authority considers matters adverse to the accused
from outside the record, with knowledge of which the accused is not chargea-
ble, the accused shall be notified and given an opportunity to rebut.” R.C.M.
1107(b)(3)(B)(iii).
As an initial matter, the SJAs involved in the post-trial processing of Ap-
pellant’s case did not solicit any statement from EB’s family, contrary to Ap-
pellant’s contention on appeal. Moreover, we find no error, plain or otherwise,
in the submission and consideration of the matters introduced by EB’s par-
ents. The matters were properly served upon Appellant and his trial defense
counsel. Appellant and his trial defense counsel were provided an opportunity
to respond to the matters and did respond to the matters asserted in the
statement. Therefore, Appellant was afforded the required due process. Addi-
tionally, matters submitted by a minor victim’s parents are, in general, prop-
er matters for a convening authority to consider prior to taking action. Fur-
thermore, the specific matters submitted by EB’s parents in this case were
appropriate matters for the convening authority to consider prior to taking
action. Finally, labeling EB’s parents as “victims,” “family of victim,” or some
similar term, did not impact the convening authority’s ability to properly con-
sider the matters they submitted.
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United States v. Vanhise, No. ACM 38882
Assuming arguendo that the submission and consideration of EB’s par-
ents’ statement was in any way plain or obvious error, we find that Appellant
failed to make some colorable showing of possible prejudice. Instead, Appel-
lant reasserts his disagreement with some of the statement’s content and
then insists that he was prejudiced “when the SJA failed to properly advise
the convening authority about the misleading information contained within
the letter.” However, Appellant’s trial defense counsel offered comment, cor-
rections, and rebuttal to the information contained within the statements.
The SJA advised the convening authority that he must consider these mat-
ters submitted by the trial defense counsel. The SJA also advised the conven-
ing authority that he “may also consider the Record of Trial, [Appellant’s]
personnel records, and such other matters as you deem appropriate.” The
SJA’s advice rightly left the consideration of the statement within the con-
vening authority’s discretion. In this case, the omission of advice in which the
SJA personally assesses the information and assertions contained within the
family’s statement, in a manner consistent with Appellant’s view of those
matters, does not amount to a colorable showing of possible prejudice.
III. CONCLUSION
The approved findings and sentence are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred.
Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the
findings and the sentence are AFFIRMED. 4
FOR THE COURT
LAQUITTA J. SMITH
Appellate Paralegal Specialist
4The General Court-Martial Order (CMO) incorrectly identifies 28 May 2015 as the
date the sentence was adjudged. Accordingly, we order a corrected CMO.
9