United States v. Massillon

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39663
________________________
UNITED STATES
Appellee
v.
Mercilous M. MASSILLON
Airman First Class (E-3), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 28 September 2020
________________________
Military Judge: Christopher M. Schumann (arraignment); John C.
Degnan.
Approved sentence: Dishonorable discharge, confinement for 1 year and
6 months, and reduction to E-2. Sentence adjudged 31 October 2018 by
GCM convened at Holloman Air Force Base, New Mexico.
For Appellant: Major Mark J. Schwartz, USAF.
For Appellee: Lieutenant Colonel Brian C. Mason, USAF; Lieutenant
Colonel Nicole P. Wishart, USAF; Mary Ellen Payne, Esquire.
Before J. JOHNSON, POSCH, and KEY, Appellate Military Judges.
Chief Judge J. JOHNSON delivered the opinion of the court, in which
Senior Judge POSCH and Judge KEY joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
J. JOHNSON, Chief Judge:
A general court-martial composed of a military judge alone convicted Ap-
pellant, in accordance with his pleas, of one specification of knowing and
wrongful possession of child pornography on divers occasions in violation of
United States v. Massillon, No. ACM 39663
Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934. 1,2 In
addition, the military judge found Appellant guilty, contrary to his pleas, of
one specification of knowing and wrongful distribution of child pornography in
violation of Article 134, UCMJ. 3 The military judge sentenced Appellant to a
dishonorable discharge, confinement for one year and six months, and reduc-
tion to the grade of E-1. The convening authority approved the dishonorable
discharge and confinement, but approved reduction only to the grade of E-2.
Appellant raises two issues on appeal: (1) whether the evidence is legally
and factually sufficient to support his conviction for distribution of child por-
nography, and (2) whether he is entitled to relief for the conditions of his post-
trial confinement. Although not raised by Appellant, we also consider whether
he is entitled to relief for facially unreasonable post-trial delay. We find no
corrective action is warranted, and we affirm the findings and sentence.
I. BACKGROUND
On 8 or 9 June 2017, Special Agent (SA) DG of the Internet Crimes Against
Children Division of the New Mexico Attorney General’s Office used investiga-
tive peer-to-peer software to search for child pornography on the BitTorrent
network. As SA DG explained at trial, 4 BitTorrent—like other peer-to-peer file
sharing networks—“relies on the individual users to store and receive and
share the files.” When a user downloads a file using BitTorrent, the program
“automatically” begins sharing the file with other network users. The program
does this through a “seeding” process whereby once a piece of a file is down-
loaded, that piece is “immediately available to share with other users,” even
before the entire file itself is fully downloaded. As a result, according to SA DG,
by the time a user fully downloads a file with BitTorrent, the user has “proba-
bly” shared pieces of the file with “hundreds or thousands of other people.”
On this occasion, SA DG used an investigative peer-to-peer program de-
signed specifically for law enforcement agents to access and investigate the
1All references in this opinion to the Uniform Code of Military Justice and Rule for
Courts-Martial are to the Manual for Courts-Martial, United States (2016 ed.).
2 Appellant pleaded, and the military judge found him, not guilty of certain excepted
language in the possession specification.
3The military judge excepted from the distribution specification certain language of
which he found Appellant not guilty. In addition, the military judge found Appellant
not guilty of a second specification of knowing and wrongful distribution of child por-
nography.
4 Without objection, the military judge recognized SA DG as an expert in “peer-to-peer
investigations.”
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United States v. Massillon, No. ACM 39663
BitTorrent network. This investigative version differed from the ordinary ver-
sion of BitTorrent in several respects, including two features significant to this
case. First, unlike BitTorrent itself, the investigative tool did not share files
with other BitTorrent users. Second, the tool was able to isolate a single Bit-
Torrent user and download files only from that individual, rather than in
pieces from numerous individuals across the network. By means of this “single
source download” feature, on 8 or 9 June 2017, SA DG was able to download
video files containing child pornography from the Internet Protocol (IP) ad-
dress of a particular BitTorrent user. SA DG then obtained a grand jury sub-
poena for the Internet service provider for the IP address in question, and
learned that the subscriber was Appellant and the service address was on Hol-
loman Air Force Base (AFB), New Mexico.
Upon learning in July 2017 that the user was located on Holloman AFB,
SA DG referred the case to the Air Force Office of Special Investigations
(AFOSI). AFOSI agents at Holloman AFB obtained a search authorization for
Appellant’s dormitory room, where they seized several electronic devices, in-
cluding a computer hard drive. Subsequent analysis of the hard drive revealed
both videos and still images of children engaged in sexually explicit conduct,
including files that SA DG downloaded in June 2017.
At trial, Appellant pleaded guilty to knowing and wrongful possession of
child pornography on divers occasions between on or about 8 July 2016 and on
or about 11 July 2017. He pleaded not guilty to a specification alleging he
knowingly and wrongfully distributed child pornography between on or about
8 July 2016 and 11 July 2017, of which the military judge found him guilty, as
well as a second alleged distribution in November 2017 of which Appellant was
acquitted.
II. DISCUSSION
A. Legal and Factual Sufficiency of Distribution of Child Pornography
1. Law
We review issues of legal and factual sufficiency de novo. United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002) (citation omitted). Our assess-
ment of legal and factual sufficiency is limited to the evidence produced at trial.
United States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993) (citations omitted).
“The test for legal sufficiency is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” United
States v. Robinson, 77 M.J. 294, 297–98 (C.A.A.F. 2018) (citation omitted). “[I]n
resolving questions of legal sufficiency, we are bound to draw every reasonable
inference from the evidence of record in favor of the prosecution.” United States
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United States v. Massillon, No. ACM 39663
v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001) (citations omitted). As a result,
“[t]he standard for legal sufficiency involves a very low threshold to sustain a
conviction.” United States v. King, 78 M.J. 218, 221 (C.A.A.F. 2019) (alteration
in original) (citation omitted), cert. denied, __ U.S. __, 139 S. Ct. 1641 (2019).
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 consti-
tutes proof of each required element beyond a reasonable doubt.’” United States
v. Wheeler, 76 M.J. 564, 568 (A.F. Ct. Crim. App. 2017), aff’d, 77 M.J. 289
(C.A.A.F. 2018) (alteration in original) (quoting Washington, 57 M.J. at 399).
The elements of the specification of distributing child pornography in vio-
lation of Article 134, UCMJ, for which Appellant was convicted include: (1) that
on the dates and at the place alleged, Appellant knowingly and wrongfully dis-
tributed child pornography to another; and (2) under the circumstances such
conduct was of a nature to bring discredit upon the armed forces. See Manual
for Courts-Martial, United States (2016 ed.) (MCM), pt. IV, ¶ 68b.b.(3). “‘Child
pornography’ means material that contains either an obscene visual depiction
of a minor engaging in sexually explicit conduct or a visual depiction of an ac-
tual minor engaging in sexually explicit conduct.” MCM, pt. IV, ¶ 68b.c.(1).
2. Analysis
Appellant does not challenge his conviction for knowingly and wrongfully
possessing child pornography on divers occasions, to which he pleaded guilty.
Appellant also does not contest that SA DG obtained from Appellant’s com-
puter the video files Appellant was charged with distributing, or that the ma-
terial is in fact child pornography; nor does he contend that any distribution of
the material was other than wrongful and service discrediting. Appellant’s ar-
gument on appeal, as at trial, is that the Government failed to prove he know-
ingly distributed the files through the BitTorrent program.
It is true that the Government lacked direct evidence that Appellant knew
he was sharing child pornography with other BitTorrent users. However, “the
[G]overnment is free to meet its burden of proof with circumstantial evidence,”
King, 78 M.J. at 221 (citations omitted), and the Government presented sub-
stantial circumstantial evidence of Appellant’s knowledge.
First, the Government introduced evidence that Appellant lived alone in
his dormitory room, and that there was a single active profile on the hard drive
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United States v. Massillon, No. ACM 39663
where the child pornography files were found. This evidence indicated that
only Appellant used the computer in question.
Second, the Government introduced evidence that Appellant was a profi-
cient user of the BitTorrent program. The Government called WY, a contractor
employee who performed a forensic examination of Appellant’s hard drive and
testified as an expert in computer forensic examinations. WY testified, inter
alia, that the BitTorrent program must be downloaded onto a hard drive from
the Internet. He further testified that he found the BitTorrent program had
been installed on Appellant’s hard drive and had been used to successfully
download batches of files known as “torrents” on seven different days. He fur-
ther testified that those torrent files had subsequently been deleted on seven
different days, which would normally require the user to use the BitTorrent
program itself through an interface screen, unless the user was sophisticated
enough to find the torrent files in a “hidden folder structure.”
Third, the Government introduced evidence that the BitTorrent program
itself would have provided notice to Appellant that the program would use his
computer to make files available to other users. Through WY, the Government
introduced copies of the screens a BitTorrent user was required to navigate in
order to initially install the program. The top of the third screen that appeared
to the user installing the program informed the user that BitTorrent is a “peer-
to-peer file distribution application.” If the user scrolled further down the
screen to read the “End User License Agreement,” he will have seen a section
entitled “Automatic Uploading,” which would have informed him explicitly
that using the program to download files “will, in turn, enable other users to
download pieces of those files from you,” and that “[y]ou consent to others’ use
of your network connection to download portions of such files from you.” In
addition, once the program was successfully installed, the BitTorrent interface
screen featured a “Transfer” section that indicated the volume of files or pieces
of files that have been “uploaded” to the BitTorrent network from the user’s
computer, as well as the volume of files or pieces the user has downloaded to
his own computer from the network.
This court reviewed a similar although not identical situation in United
States v. Stephens, No. ACM 38487, 2015 CCA LEXIS 159 (A.F. Ct. Crim. App.
23 Apr. 2015) (unpub. op.). In Stephens, as in Appellant’s case, a civilian law
enforcement agent downloaded files containing child pornography through a
peer-to-peer network that made such files available to other network users. Id.
at *2–3; cf. United States v. Williams, 74 M.J. 574, 578 (A.F. Ct. Crim. App.
2014) (holding the download of child pornography by law enforcement agent
through peer-to-peer network was legally sufficient to support conviction for
distribution of child pornography). As in Appellant’s case, Stephens conceded
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United States v. Massillon, No. ACM 39663
that he possessed child pornography and did not contest that the agent ob-
tained child pornography from him through the peer-to-peer network. Id. at
*5. However, also like Appellant, Stephens contended the Government had not
proved he knowingly distributed child pornography. Id. The Government’s case
in Stephens was arguably stronger than in the instant case in the sense that
Stephens had evidently used his peer-to-peer software more extensively than
Appellant used BitTorrent; but it was also weaker in the sense that when Ste-
phens’s computer was seized, the program’s privacy setting entitled “See My
Shared Files/Directories” was set on “Nobody,” as opposed to the “Everybody”
or “Friends only” settings. Id. at *5–6. Although this setting would have only
“obscured from the view of others a listing of available files,” id. at *7, and
would not have prevented actual file sharing, Stephens argued this setting in-
dicated he sought to hide rather than share his files. Id. at *6–7. Nevertheless,
this court affirmed his conviction, noting that the program display would have
informed Stephens his files, including child pornography files, were being
shared with other users, and that the very nature of the program “was de-
signed specifically for sharing.” Id. at *6–8.
Similar considerations to those identified in Stephens apply in Appellant’s
case. The Government introduced evidence that the very nature of BitTorrent,
which Appellant evidently sought out and installed, was to share downloaded
files across the network. Furthermore, Appellant almost certainly used the Bit-
Torrent user interface repeatedly, and that interface would have informed Ap-
pellant that his files were being uploaded. In addition, as described above, in
order to install the BitTorrent program, Appellant would have seen a screen
that informed him he was installing a “peer-to-peer file distribution applica-
tion”—even if he did not then scroll down to read the “Automatic Upload” sec-
tion explicitly informing him he was enabling others to upload the files he
downloaded. Thus, the military judge was presented with substantial circum-
stantial evidence that Appellant knew he was sharing child pornography
through the BitTorrent network.
Drawing every reasonable inference from the evidence of record in favor of
the Government, we conclude the evidence was legally sufficient to support
Appellant’s conviction for wrongful and knowing distribution of child pornog-
raphy beyond a reasonable doubt. See Robinson, 77 M.J. at 297–98. Addition-
ally, having weighed the evidence in the record of trial and having made allow-
ances for not having personally observed the witnesses, we are convinced of
Appellant’s guilt beyond a reasonable doubt. See Turner, 25 M.J. at 325.
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United States v. Massillon, No. ACM 39663
B. Post-Trial Confinement Conditions
1. Additional Background
After Appellant’s sentencing on 31 October 2018, he was confined in the
Otero County Prison Facility (OCPF) for 37 days before he was transferred to
military confinement. In Appellant’s clemency submission to the convening au-
thority dated 8 March 2019, Appellant and his trial defense counsel asserted
the conditions of Appellant’s confinement at OCPF had been unlawful. In par-
ticular, trial defense counsel cited that Appellant was confined alone in a cell
in administrative segregation. He was allowed only one hour per day, five days
per week, for recreation outside his cell, as well as “about ten minutes” three
times a week to shower. Appellant was given two left-footed shoes and was
never provided a right-footed shoe throughout his confinement at OCPF. In
addition, trial defense counsel asserted that the lights were dimmed for eight
hours per day, but never fully turned off. Appellant was required to wear a
black and white uniform that was different from the other confinees, which
enabled the others to “single him out.” Furthermore, Appellant asserts he
“went over two weeks without commissary privileges,” and as a result he went
without shampoo, deodorant, books, and other supplies during that time. Fi-
nally, Appellant asserts he was not provided a laundry bag until he asked for
one after being confined for approximately one week. Appellant asserts he at-
tempted to address his concerns with the commissary and laundry by using a
buzzer in his cell, which was either broken or ignored, and by asking the prison
staff directly.
Trial defense counsel asserted these conditions were unlawful, particularly
Appellant’s isolation in administrative segregation, citing this court’s decision
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), and Air Force Instruction (AFI) 31-105, Air Force
Corrections Systems (15 Jun. 2015, as amended by AFGM 2017-01, 28 Jun.
2017). In addition, trial defense counsel asserted the Government was on no-
tice of these confinement conditions because OCPF had been the subject of
multiple clemency requests since mid-2017, and in a recent case a military
judge had granted three-for-one credit for unlawful pretrial confinement at
OCPF pursuant to Rule for Courts-Martial 305(k).
The staff judge advocate had initially recommended the convening author-
ity approve the sentence as adjudged. However, in his addendum to the recom-
mendation, the staff judge advocate recommended the convening authority
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United States v. Massillon, No. ACM 39663
grant relief “[d]ue to the issues raised in the defense clemency matters” by ap-
proving a reduction only to the grade of E-2, rather than E-1 as adjudged. The
convening authority took action in accordance with this recommendation. 5
On appeal, Appellant renews his contention that he is entitled to relief for
the conditions of his confinement at OCPF, as described in his clemency sub-
mission. In response, the Government provided a sworn declaration from Cap-
tain RO, the Chief of Security at OCPF, addressing the concerns Appellant has
raised. 6 Captain RO’s declaration is largely consistent with the Defense’s fac-
tual assertions, other than minor discrepancies such as whether one week or
two weeks elapsed before Appellant began making commissary purchases, or
whether the time allotted to shower and shave three times a week was limited
to ten minutes. We have considered whether a post-trial evidentiary hearing
is required to resolve such discrepancies, and we are convinced such a hearing
is not required. See United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997);
United States v. DuBay, 37 C.M.R. 411 (C.M.A. 1967) (per curiam). Even if we
resolved such minor differences in Appellant’s favor, he would not be entitled
to relief. See Ginn, 47 M.J. at 248.
Captain RO’s declaration explains, inter alia, that Appellant had access to
clothing, laundry services, and basic grooming and sanitary supplies, even
without commissary purchases. He explained that OCPF was a multi-agency
5We note the staff judge advocate’s recommendation incorrectly advised the convening
authority that the maximum imposable term of confinement for Appellant’s offenses
was 10 years, whereas the correct figure was 30 years. However, because this error
favored Appellant, we find no colorable showing of possible prejudice from the error.
See United States v. Scalo, 60 M.J. 435, 436 (C.A.A.F. 2005).
6 In United States v. Jessie, the United States Court of Appeals for the Armed Forces
(CAAF) explained the general rule “that the [Courts of Criminal Appeals] may not
consider anything outside of the ‘entire record’ when reviewing a sentence under Arti-
cle 66(c), UCMJ.” 79 M.J. 437, 441 (C.A.A.F. 2020) (quoting United States v. Fagnan,
30 C.M.R. 192, 194 (C.M.A. 1961)) (additional citation omitted). The clemency submis-
sion upon which Appellant relies for his factual assertions is part of the entire record,
and therefore properly before us with regard to his allegedly unlawful post-trial con-
finement. See Jessie, 79 M.J. at 440. However, the CAAF also recognized that “some
[of its] precedents have allowed the [Courts of Criminal Appeals] to supplement the
record when deciding issues that are raised by materials in the record,” specifically
with affidavits or hearings ordered pursuant to United States v. DuBay, 37 C.M.R. 411
(C.M.A. 1967) (per curiam). Jessie, 79 M.J. at 442. In Jessie, the CAAF declined to
disturb this line of precedent. Id. at 444. Accordingly, we understand Jessie to permit
our review of Captain RO’s responsive declaration that the Government moved this
court to attach on appeal. See United States v. Cink, No. ACM 39594, 2020 CCA LEXIS
208, at *19–20 (A.F. Ct. Crim. App. 12 Jun. 2020) (unpub. op.).
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United States v. Massillon, No. ACM 39663
facility, and confinees wore different uniforms according to their varying sta-
tuses in order to “prevent[ ] cross traffic between agencies and ensure[ ] the
safety of all inmates and staff members.” According to Captain RO, there was
no record that Appellant complained that he had two left shoes. In addition,
Captain RO notably reported that Appellant “refused recreation 22 days out of
24 days permitted during his stay and provided his signature to confirm his
verbal refusal.”
2. Law
We review de novo whether an appellant has been subjected to impermis-
sible conditions of confinement in violation of the Eighth Amendment 7 or Arti-
cle 55, UCMJ, 10 U.S.C. § 855. United States v. Wise, 64 M.J. 468, 473 (C.A.A.F.
2007) (citing United States v. White, 54 M.J. 469, 471 (C.A.A.F. 2001)).
“Both the Eighth Amendment and Article 55, UCMJ, prohibit cruel and
unusual punishment. In general, we apply the Supreme Court’s interpretation
of the Eighth Amendment to claims raised under Article 55, UCMJ, except
where legislative intent to provide greater protections under Article 55, UCMJ,
is apparent.” Gay, 74 M.J. at 740 (citing United States v. Avila, 53 M.J. 99, 101
(C.A.A.F. 2000)). To demonstrate a violation of the Eighth Amendment, an ap-
pellant must show:
(1) an objectively, sufficiently serious act or omission resulting
in the denial of necessities; (2) a culpable state of mind on the
part of prison officials amounting to deliberate indifference to
[his] health and safety; and (3) that he “has exhausted the pris-
oner-grievance system . . . and that he has petitioned for relief
under Article 138, UCMJ, 10 USC § 938 [2000].”
United States v. Lovett, 63 M.J. 211, 215 (C.A.A.F. 2006) (omission and second
alteration in original) (internal citations omitted).
Pursuant to our broad authority and mandate under Article 66(c), UCMJ,
10 U.S.C. § 866(c), to approve only so much of the sentence as we find appro-
priate in law and fact, we may grant sentence relief for a legal deficiency or
error in an appellant’s post-trial treatment that does not constitute an Eighth
Amendment or Article 55, UCMJ, violation. See United States v. Gay, 75 M.J.
264, 269 (C.A.A.F. 2016); see also United States v. Tardif, 57 M.J. 219, 223
(C.A.A.F. 2002). However, “[o]nly in very rare circumstances do we anticipate
granting sentence relief when there is no violation of the Eighth Amendment
or Article 55, UCMJ.” United States v. Ferrando, 77 M.J. 506, 517 (A.F. Ct.
Crim. App. 2017) (citations omitted).
7 U.S. CONST. amend. VIII.
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United States v. Massillon, No. ACM 39663
3. Analysis
Appellant contends the conditions of his confinement amounted to cruel
and unusual punishment in violation of the Eighth Amendment and Article 55,
UCMJ. We disagree. Appellant fails to establish any of the three elements re-
quired under Lovett.
First, Appellant has failed to demonstrate any serious act or omission
amounting to the “denial of ‘the minimal civilized measure of life’s necessities.’”
Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Rhodes v. Chapman, 452
U.S. 337, 347 (1981)). He was provided food, shelter, basic hygiene supplies,
and the opportunity to shower regularly; eventually, he was able to purchase
items from the commissary. Appellant was provided regular if limited oppor-
tunities for recreation outside his cell. He has provided no evidence that the
conditions of his confinement were unsanitary, or that he suffered malnutri-
tion or any other ill health effects during his stay at OCPF. Given that Appel-
lant has failed to demonstrate any substantial risk to his health or safety, it is
unsurprising that he has also failed to demonstrate the second prong of the
Lovett test—that OCPF officials were deliberately indifferent to such a risk. 63
M.J. at 215.
Appellant cites this court’s decision in Gay for the proposition that avoiding
commingling with foreign nationals is not an acceptable reason for placement
in solitary confinement. 74 M.J. at 743. However, Gay avails Appellant not at
all with respect to his Eighth Amendment and Article 55, UCMJ, claims; in
fact, in Gay this court stated the “‘routine conditions associated with punitive
or administrative segregation’ . . . do not ‘rise to the level of a deprivation of
life’s necessities and violation of the Eighth Amendment.’” Id. at 742 (quoting
Avila, 53 M.J. at 102). Similarly, we are not persuaded by Appellant’s reference
to the standards for restrictive housing in Air Force confinement facilities set
forth in AFI 31-105. We have previously declined to find such standards appli-
cable to post-trial confinement in a non-Air Force facility. See United States v.
Damm, No. ACM 39399, 2019 CCA LEXIS 283, at *18 (A.F. Ct. Crim. App. 21
Jun. 2019) (unpub. op.) (involving another Air Force confinee at OCPF). As-
suming arguendo AFI 31-105 would apply to Air Force confinees at a civilian
facility, “[t]he fact that regulations were not followed does not demonstrate a
‘sufficiently serious’ deprivation under the Eighth Amendment.” Avila, 53 M.J.
at 102. As described above, the actual conditions of Appellant’s confinement
did not deny him the necessities of life.
Turning to the third prong of the Lovett test, even if we give Appellant the
benefit of the doubt and assume for purposes of argument that he exhausted
the OCPF grievance procedure by ringing the buzzer in his cell and raising at
least some of his concerns with the facility staff, at no point did Appellant pe-
tition for relief under Article 138, UCMJ. See Lovett, 63 M.J. at 215. Appellant
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United States v. Massillon, No. ACM 39663
suggests his “very detailed” clemency submission “effectively amounted to an
Article 138, UCMJ, complaint.” We disagree. The requirement that a confinee
must seek administrative relief, including under Article 138, UCMJ, “‘pro-
mot[es] resolution of grievances at the lowest possible level [and ensures] that
an adequate record has been developed [to aid appellate review].’” Wise, 64
M.J. at 471 (alterations in original) (quoting United States v. Miller, 46 M.J.
248, 250 (C.A.A.F. 1997)). In this case, Appellant’s clemency submission
months after he had been transferred out of OCPF hardly served either pur-
pose.
Alternatively, Appellant contends that the conditions of his confinement
were an “unusual or egregious” circumstance that warrants an exception to the
usual requirement. He compares his situation to that in United States v. Alex-
ander-Lee, where this court granted relief for violation of Article 12, UCMJ, 10
U.S.C. § 812, despite the appellant’s failure to file a complaint with the con-
finement facility or submit an Article 138, UCMJ, complaint. No. ACM S31784,
2012 CCA LEXIS 95, at *9–11 (A.F. Ct. Crim. App. 16 A.K. Marsh. 2012) (unpub. op.).
However, we find Appellant’s case entirely unlike Alexander-Lee, where our
decision hinged on circumstances not present here. In Alexander-Lee, “the ap-
pellant had no understanding of the legal significance of being confined with
foreign nationals and his defense counsel was unaware of the situation.” Id. at
*9. Once the defense counsel was apprised, he “acted promptly by informing
the convening authority of the situation in the clemency submission.” Id. In
contrast, Appellant was evidently quite aware of the allegedly cruel and unu-
sual circumstances of which he subsequently complained; moreover, so was his
trial defense counsel, who emphasized in his clemency submission how the con-
ditions at OCPF had been repeatedly brought to the attention of Air Force au-
thorities in other cases. Yet far from acting promptly, Appellant and his coun-
sel waited until months after Appellant’s transfer to raise their concerns.
We have also considered whether Appellant’s assertions warrant sentence
relief under our Article 66(c), UCMJ, authority in the absence of an Eighth
Amendment or Article 55, UCMJ, violation. See Gay, 75 M.J. at 268. We find
that they do not. Appellant’s case did not involve a legal error such as the one
present in Gay, where the appellant was unnecessarily kept in solitary con-
finement in a civilian facility at the request of an Air Force official. Id. at 268–
69. The conditions Appellant describes, although undoubtedly restrictive, do
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United States v. Massillon, No. ACM 39663
not constitute one of those very rare circumstances in which Appellant’s sen-
tence has been rendered inappropriate as a matter of law. See Ferrando, 77
M.J. at 517. 8
C. Post-Trial Delay
Appellant’s court-martial concluded on 31 October 2018. However, the con-
vening authority did not take action until 16 March 2019. This 136-day period
exceeded by 16 days the 120-day threshold for a presumptively unreasonable
post-trial delay the United States Court of Appeals for the Armed Forces
(CAAF) established in United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F.
2006). Accordingly, we have considered the four factors the CAAF identified in
Moreno to assess whether Appellant’s due process right to timely post-trial and
appellate review has been violated: “(1) the length of the delay; (2) the reasons
for the delay; (3) the appellant’s assertion of the right to timely review and ap-
peal; and (4) prejudice.” Id. at 135 (citing United States v. Jones, 61 M.J. 80, 83
(C.A.A.F. 2005); Toohey v. United States, 60 M.J. 100, 102 (C.A.A.F. 2004) (per
curiam)). “We review de novo claims that an appellant has been denied the due
process right to a speedy post-trial review and appeal.” Id. (citations omitted).
In Moreno, the CAAF identified three types of cognizable prejudice for pur-
poses of an appellant’s due process right to timely post-trial review: (1) oppres-
sive incarceration; (2) anxiety and concern; and (3) impairment of the appel-
lant’s ability to present a defense at a rehearing. 63 M.J. at 138–39 (citations
omitted). Where, as in this case, the appellant does not prevail on the substan-
tive grounds of his appeal, there is no oppressive incarceration. Id. at 139. Sim-
ilarly, where Appellant’s substantive appeal fails, his ability to present a de-
fense at a rehearing is not impaired. Id. at 140. As for anxiety and concern, the
CAAF has explained “the appropriate test for the military justice system is to
require an appellant to show particularized anxiety or concern that is distin-
guishable from the normal anxiety experienced by prisoners awaiting an ap-
pellate decision.” Id. Appellant has made no claim or showing of such particu-
larized anxiety or concern in this case, and we discern none.
8 Appellant’s brief also asserts the Government violated Article 58, UCMJ, 10 U.S.C.
§ 858, which provides in pertinent part: (1) pursuant to instructions prescribed by the
service Secretary, a court-martial sentence to confinement may be carried out at a fa-
cility under the control of any of the armed forces, under the control of the United
States, or which the United States is allowed to use; and (2) persons so confined in
facilities not under military control are subject to the same discipline and treatment
as non-military confinees held there. Appellant fails to explain his theory as to how
the Government violated Article 58, UCMJ. In light of that failure and the foregoing
analysis of the Eighth Amendment, Article 55, UCMJ, and Article 66, UCMJ, we find
any alleged violation of Article 58, UCMJ, is without merit and requires neither fur-
ther discussion nor relief. See United States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987).
12
United States v. Massillon, No. ACM 39663
Where there is no qualifying prejudice from the delay, there is no due pro-
cess violation unless 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). The court reporter’s chro-
nology included with the record of trial indicates the primary cause of the delay
was delay in transcribing and authenticating the record of trial, largely due to
other court reporting and transcription assignments taking priority over Ap-
pellant’s record. In addition, Appellant requested speedy post-trial processing,
albeit only eight days before the convening authority took action. Recognizing
that Appellant’s record of trial is not unusually large and that the Government
evidently did not prioritize the transcription of Appellant’s trial, nevertheless,
in light of the absence of prejudice, we conclude the delay was not so egregious
as to impugn the fairness and integrity of the military justice system, and we
do not find a violation of Appellant’s due process rights.
Recognizing our authority under Article 66(c), UCMJ, we have also consid-
ered whether relief for excessive post-trial delay is appropriate even in the ab-
sence of a due process violation. See Tardif, 57 M.J. at 225. After considering
the factors enumerated in Gay, 74 M.J. at 744, we conclude it is not.
III. CONCLUSION
The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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