United States v. Muller

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39323 (rem)
________________________
UNITED STATES
Appellee
v.
Jordan R. MULLER
Airman First Class (E-3), U.S. Air Force, Appellant
________________________
On Remand from
The United States Court of Appeals for the Armed Forces
Decided 16 August 2021
________________________
Military Judge: Andrew Kalavanos.
Approved sentence: Bad-conduct discharge, confinement for 9 months,
and reduction to E-1. Sentence adjudged 2 June 2017 by GCM convened
at Vandenberg Air Force Base, California.
For Appellant: Mark C. Bruegger, Esquire.
For Appellee: Lieutenant Colonel Brian C. Mason, USAF; Lieutenant
Colonel Matthew J. Neil, USAF; Mary Ellen Payne, Esquire.
Before JOHNSON, LEWIS, and POSCH, Appellate Military Judges.
Senior Judge POSCH delivered the opinion of the court, in which Chief
Judge JOHNSON and Senior Judge LEWIS joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
POSCH, Senior Judge:
A general court-martial composed of a military judge sitting alone con-
victed Appellant, in accordance with a pretrial agreement (PTA), of using 3,4-
United States v. Muller, No. ACM 39323 (rem)
methylenedioxymethamphetamine (commonly known as ecstasy), and use and
distribution of cocaine in violation of Article 112a, UCMJ, 10 U.S.C. § 912a. 1
Based on Appellant’s pleas of guilty, the maximum punishment was a dishon-
orable discharge, confinement for 25 years, forfeiture of all pay and allowances,
reduction to the grade of E-1, and a reprimand. In exchange for Appellant
pleading guilty as charged, the convening authority agreed, as a term of the
PTA, to limit the confinement to 15 months. Ultimately, however, this limita-
tion was of no consequence. Appellant’s adjudged and approved sentence con-
sisted of a bad-conduct discharge, confinement for nine months, and reduction
to the grade of E-1.
Appellant’s case is before this court a second time. In his initial appeal, on
16 May 2018 Appellant submitted his case on its merits with no assignment of
error. However, on 12 September 2018, this court issued a Show Cause Order
because a sentencing exhibit, Prosecution Exhibit 7, was missing from the rec-
ord of trial. Exercising the court’s independent responsibility to review the rec-
ord of trial under Article 66(c), UCMJ, 10 U.S.C. § 866(c), the court returned
Appellant’s record for correction because that exhibit was missing.
After this court returned the record, the military judge signed a certificate
of correction, and the record, now complete, was again docketed with the court.
Appellant then moved for leave to file two supplemental assignments of error.
First, Appellant claimed unlawful command influence (UCI) in the manner by
which the Government corrected the record. Second, Appellant claimed preju-
dice for the time it took the Government to obtain the certificate of correction
from the military judge.
On the same day this court affirmed the findings of guilty and the sentence,
United States v. Muller, No. ACM 39323, 2018 CCA LEXIS 574 (A.F. Ct. Crim.
App. 21 Dec. 2018) (per curiam) (unpub. op.), the court summarily denied Ap-
pellant’s motion for leave to file the two supplemental assignments of error.
Appellant moved this court to reconsider its denial, with a suggestion for en
banc consideration, and the court on 28 January 2019 denied this motion. How-
ever, on 12 February 2020, the United States Court of Appeals for the Armed
Forces (CAAF) reversed our judgment that affirmed the findings and sentence.
United States v. Muller, 79 M.J. 359, 361 (C.A.A.F. 2020) (per curiam). The
CAAF concluded that it could not determine whether the court’s denial of Ap-
pellant’s motion was based on an invalid rule of procedure of the court, or some
other basis, and remanded the case for a new review of Appellant’s court-mar-
tial under Article 66(c), UCMJ. Id.1 All references to the Uniform Code of Military Justice (UCMJ) and Rules for Courts-
Martial (R.C.M.) are to the Manual for Courts-Martial, United States (2016 ed.).
2
United States v. Muller, No. ACM 39323 (rem)
Today’s decision by a reconstituted three-judge panel of the court is that
review. On remand, Appellant raised three issues. Two of the issues essentially
restate concerns he raised in the motion that this court denied during initial
review. Following the CAAF remand, we address both issues and a third issue
raised by Appellant for the first time. In this appeal, Appellant asks (1)
whether the Government’s delay in processing a certificate of correction war-
rants sentence relief; (2) whether the convening authority engaged in UCI
when he directed the military judge to verify that a document purporting to be
Prosecution Exhibit 7, which was missing from the record of trial, was the same
Prosecution Exhibit 7 that the military judge reviewed at trial; and (3) whether
Appellant’s sentence is inappropriately severe. 2
Finding no error materially prejudicial to Appellant’s substantial rights,
and following this court’s Article 66(c), UCMJ, mandate to affirm only so much
of the findings and the sentence as we find, on the basis of the entire record,
should be approved, we affirm the findings and the sentence.
I. BACKGROUND
A. Trial and Sentencing
At trial on 2 June 2017, Appellant pleaded guilty to the use of ecstasy and
cocaine. As a condition to the military judge accepting his pleas, Appellant an-
swered the military judge’s questions to ensure his pleas were provident. He
described ingesting a pill he received from another Airman that Appellant
knew was ecstasy. Appellant “asked for the drug by name” and the pill he re-
ceived looked like the brand he saw on an Internet website. After swallowing
the pill, he “felt euphoric, dehydrated and in no pain.”
Appellant estimated he used cocaine approximately 15 times between
1 May 2016 and 20 January 2017. Usually Appellant used cocaine with two
Airmen who were his friends, but he used it with other members of his squad-
ron as well. One of the earliest times Appellant used cocaine was with a non-
commissioned officer (NCO) senior to Appellant who showed him how to snort
cocaine powder off a credit card. Appellant described two times that he used
cocaine on Vandenberg Air Force Base (AFB), California, where he was as-
signed. On one occasion he used it with other Airmen in an on-base house
where a friend was having a party. Appellant used it by snorting “a line” they
had set up for him on a plate, and the effects he felt were “instant.” On a second
occasion, he snorted “a line” with other Airmen in a recreational room near one
of the dorms. Appellant also used the drug in his off-base apartment, in bars,
2 Appellant raises issues (2) and (3), which we reordered, pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982).
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United States v. Muller, No. ACM 39323 (rem)
and in a hotel in Lompoc, California. Appellant also used the drug in nearby
Santa Maria and San Luis Obispo, California.
During the same period he used cocaine, Appellant admitted he distributed
the drug to his friends on approximately five occasions. Appellant explained he
would purchase cocaine from his dealer to share it with friends at his apart-
ment. Appellant said he put lines on a plate and they would pay Appellant for
their share and settle what they owed Appellant amongst themselves. Two of
the friends to whom Appellant gave cocaine under these circumstances were
Airmen.
During sentencing, the Government presented Appellant’s AF Form 910,
Enlisted Performance Report (EPR), for the period 10 November 2014 through
9 July 2016. In addition, the Government presented evidence it used to argue
Appellant’s lack of rehabilitative potential. In August 2016, Appellant received
a letter of reprimand following his arrest for public intoxication. In October
2016, Appellant was again arrested for public intoxication and later found
guilty in state court of public intoxication and resisting a public officer. Appel-
lant’s First Sergeant testified he interacted with Appellant approximately two
to three times per week, and offered his opinion that Appellant’s rehabilitation
potential was “low.” Appellant’s sentencing case consisted of testimony from
his mother and father, character letters from his family, and his own oral and
written unsworn statements.
B. Procedural History on Appeal
After the court-martial adjourned, Appellant’s case was initially docketed
with this court on 18 September 2017. On 16 May 2018, Appellant submitted
his appeal on the merits without any assignment of error. About four months
later, in September 2018, while conducting its review under Article 66(c),
UCMJ, the originally constituted three-judge panel of this court discovered
that Appellant’s only EPR, Prosecution Exhibit 7, was plainly absent from the
original record of trial as authenticated by the military judge who presided at
the court-martial. Judging from the verbatim transcript of the proceedings, the
EPR had been offered by the Prosecution and admitted in evidence during its
sentencing case. On 12 September 2018, this court issued an order for the Gov-
ernment to show good cause why the record should not be returned to the con-
vening authority for correction under Rule for Courts-Martial (R.C.M.) 1104(d)
because the record was incomplete. We further ordered the Government to do
so not later than 26 September 2018.
On that date, the Government responded with a motion to attach an EPR
that, before trial, Appellant’s First Sergeant had “Certified” as a “True Copy,”
along with an accompanying post-trial declaration from the trial counsel who
was detailed to Appellant’s case explaining that the EPR was identical to the
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United States v. Muller, No. ACM 39323 (rem)
one that the military judge had admitted in evidence. The trial counsel said
she was “extremely confident” the EPR attached to her declaration was the
same as the missing exhibit. At the same time, appellate counsel for the Gov-
ernment argued this court did not need to return the record to the convening
authority because granting its motion would make the record complete.
This court declined the Government’s suggestion and, on 5 October 2018,
denied the Government’s motion to attach and ordered the record be returned
for correction. The order cited R.C.M. 1104(d) and the provisions of that rule
for the military judge to produce and then authenticate a certificate of correc-
tion. The court’s order further directed the Government to return the corrected
record to the court no later than 4 November 2018.
The Government moved for a 14-day enlargement filed out of time on 1 No-
vember 2018 because it needed more time to comply. The Government ex-
plained that “[t]he convening authority’s servicing legal office and the military
judge have been diligently taking steps to comply with this Court’s [5 October
2018] order.” The Government related that “the military judge sent a draft cer-
tificate of correction to counsel with a deadline of 2 November 2018 to respond.
However, the certificate of correction may not be completed in time to return
the record to this Court by 4 November 2018.”
This court granted the Government’s motion over Appellant’s opposition
and set 18 November 2018 as the date when the corrected record of trial would
be returned to this court. Meanwhile, and apparently around the same time as
the military judge was circulating his proposed certificate of correction among
the counsel for both parties, on 30 October 2018 the convening authority issued
a memorandum to the military judge that “direct[ed]” him to prepare a certifi-
cate of correction:
By appellate court order, I direct you to prepare a Certificate of
Correction that identifies Prosecution Exhibit 7, described in the
Exhibit List as an “Enlisted Performance Report, dated 10 No-
vember 2014 to 9 July 2016” and it’s [sic] inclusion in the record
of trial. You are to verify that this exhibit is what you reviewed
as the military judge in U.S. v. Muller.
Nonetheless, the Government again missed the court’s deadline. On 26 No-
vember 2018, the Government moved—out of time—to attach a certificate of
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United States v. Muller, No. ACM 39323 (rem)
correction. 3 On 30 November 2018, we granted the motion and Appellant’s rec-
ord of trial—with the exhibit that was missing now part of the record—was
again docketed with the court. 4 The certificate of correction attached to the
Government’s motion to attach is dated 2 November 2018, and the postal re-
ceipt shows delivery to Appellant on 5 November 2018. The Government did
not detail the actions it took between Appellant’s receipt of the corrected record
and its motion to attach.
One week after Appellant’s case was re-docketed with this court, Appel-
lant’s military appellate defense counsel filed a pleading on Appellant’s behalf.
In that pleading, Appellant separately alleged two claims of prejudicial error
arising from the correction process. 5
The Government did not file a response to this pleading, and, on 21 Decem-
ber 2018, we summarily denied Appellant’s motions, thereby declining to ad-
dress his supplemental assignments of error. At the same time, we issued our
decision affirming the findings and sentence. Muller, unpub. op. at *1. When
this court issued its opinion, fewer than 18 months had elapsed after Appel-
lant’s case was originally docketed with this court on 18 September 2017. All
told, Appellant took 241 days to file his merits brief, and the Government took
52 days to comply with this court’s order.
II. DISCUSSION
A. Timeliness of Post-Trial Processing
In his first assignment of error, Appellant claims prejudice from delay
caused by the Government’s failure to provide a complete record of trial when
it was initially docketed with this court. As a remedy, Appellant asks this court
to order appropriate sentence relief. We find the Government did not deprive
Appellant of his due process right to speedy post-trial and appellate review or
that he has shown prejudice, and, thus, decline Appellant’s request for relief.
3 The Government initially submitted the certificate of correction in a motion to attach
on 21 November 2018, but did not identify that the motion was filed out of time. This
court denied that motion on 30 November 2018.
4 We granted the Government’s motion to attach over Appellant’s opposition that the
Government failed to demonstrate good cause for its out-of-time filing.
5 Appellant raised both issues in a 6 December 2018 motion for leave to file supple-
mental assignments of error that was supported by a personal declaration in a 10 De-
cember 2018 motion to attach. On 21 December 2018, this court denied both motions.
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United States v. Muller, No. ACM 39323 (rem)
1. Additional Background
In three post-trial declarations attached to the appellate record, Appellant
claims he has demonstrated prejudice from the delay. The first declaration, by
Appellant, claims the Government’s dilatory conduct will contribute to the de-
layed issuance of a DD Form 214. Appellant explains that, as a result, he was
denied employment opportunities because he did not have a DD Form 214.
Even after he was “finally able to get a job in May 2018,” he is “constantly
worried that if anything happens, such as getting laid off due to the [COVID-
19] pandemic, [he] will be unable to find other employment without [a] DD
Form 214.” The second and third declarations were made by Appellant’s
mother and girlfriend, which lend support to Appellant’s declaration.
2. Law
“[C]onvicted servicemembers have a due process right to timely review and
appeal of courts-martial convictions.” United States v. Moreno, 63 M.J. 129,
136 (C.A.A.F. 2006) (citing Toohey v. United States, 60 M.J. 100, 101 (C.A.A.F.
2004); Diaz v. Judge Advocate General of the Navy, 59 M.J. 34, 37–38 (C.A.A.F.
2003)). We review de novo whether an appellant has been denied this right. Id.
at 135 (citations omitted).
In Moreno, our superior court’s holding quantified the threshold for a pre-
sumptive due process violation that it measured in days and months when any
of the following occur: (1) the convening authority takes action more than 120
days after completion of trial; (2) the record of trial is docketed by the service
Court of Criminal Appeals (CCA) more than 30 days after the convening au-
thority’s action; or (3) a CCA completes appellate review and renders its deci-
sion over 18 months after the case is docketed with the court. Id. at 142.
When a case does not meet one of these standards, the delay is presump-
tively unreasonable and it triggers an analysis of the four non-exclusive factors
laid out in Barker: “(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) prej-
udice.” Moreno, 63 M.J. at 135 (citing Barker v. Wingo, 407 U.S. 514, 530
(1972)) (other citations omitted). These factors are used to assess whether an
appellant’s due process right to timely post-trial and appellate review has been
violated. Id.“Once this due process analysis is triggered by a facially unreasonable de-
lay, the four factors are balanced, with no single factor being required to find
that post-trial delay constitutes a due process violation.” Id. at 136 (citing
Barker, 407 U.S. at 533 (other citation omitted)). The CAAF found it “im-
portant to note that the presumptions [of facially unreasonable delay] serve to
trigger the four-part Barker analysis—not resolve it. The Government can re-
but the presumption by showing the delay was not unreasonable.” Id. at 142.
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United States v. Muller, No. ACM 39323 (rem)
However, where there is no qualifying prejudice from the delay, there is no
due process 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). In Moreno, the CAAF
identified three interests protected by an appellant’s due process right to
timely post-trial review: (1) preventing oppressive incarceration; (2) minimiz-
ing anxiety and concern; and (3) avoiding impairment of the appellant’s
grounds for appeal and ability to present a defense at a rehearing. 63 M.J. at
138–39 (citations omitted).
3. Analysis
The Government timely docketed Appellant’s record of trial with this court.
However, the record that it did submit was initially incomplete, thus raising a
question whether the Government complied with the 30-day Moreno standard,
which requires us to find facially unreasonable delay when a record of trial is
docketed more than 30 days after action by the convening authority. Notion-
ally, this Moreno standard may be open to two possible interpretations. Under
the first and more likely interpretation, the Government categorically com-
plied with the 30-day Moreno standard because the CAAF has not articulated
that a record must be complete to forestall a presumption of post-trial delay.
Under an alternative reading, a record is not docketed de jure with the court
until the Government dockets a complete record of trial.
In the case under review, we believe that the first interpretation is correct.
The failure of Government personnel to include Appellant’s EPR, admitted as
a prosecution exhibit, was not shown to be anything other than simple negli-
gence. The record yields no reason to believe the omission was intentional,
much less deliberate. Cf. United States v. Bavender, No. ACM 39390, 2019 CCA
LEXIS 340, at *67, *68 n.28 (A.F. Ct. Crim. App. 23 Aug. 2019) (unpub. op.)
(where the Government docketed “[a] plainly deficient record” deliberately
omitting evidence on which it relied to convict). Appellant does not claim the
Government erred in failing to meet the 30-day Moreno standard, and we be-
lieve a finding that there was no facially unreasonable delay, in this regard, is
correct.
We turn then to consider Appellant’s claim that the Government took 52
days to comply with this court’s order (and that it took 75 days after the Gov-
ernment was notified of the missing exhibit to do so). Appellant makes no claim
that this delay violated Moreno, and the Government maintains there is no
legal standard governing how long it should take to complete a certificate of
correction. We agree with the Government that Appellant has not demon-
strated a presumption of unreasonable delay under an identified legal stand-
ard. We note that even with the 52 days it took the Government to return the
record of trial to the court, in compliance with Moreno, appellate review was
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United States v. Muller, No. ACM 39323 (rem)
completed, and an initial decision rendered, well within 18 months after Ap-
pellant’s case was first docketed with the court. Under the totality of the cir-
cumstances, Appellant has not shown facially unreasonable delay that would
trigger an analysis of the four non-exclusive factors laid out in Barker. Moreno,
63 M.J. at 135 (citing Barker, 407 U.S. at 530) (other citations omitted)).
Even if we assume for purposes of this appeal only that there was facially
unreasonable delay during part of the time Appellant’s case was docketed with
this court, we would not find a violation of Appellant’s due process right to
speedy appellate review and grant relief. Our analysis of the Barker factors
would not lead to a finding of error. The length of the delay does not favor
Appellant because the 52 days it took the Government to comply with this
court’s order did not cause a presumption of unreasonable delay that our supe-
rior court established in Moreno or that was violative of another legal standard.
Compared to the 460 days Appellant’s case was on appeal, the 52 days is short.
The reason for the delay, however, does favor Appellant. It seems suitable that
the Government bears initial responsibility for causing delay when a reviewing
authority directs a certificate of correction. This is because the Government
has a responsibility to docket a complete record of trial with the court. United
States v. Lovely, 73 M.J. 658, 675 (A.F. Ct. Crim. App. 2014) (“[I]t is the Gov-
ernment’s responsibility to prepare the record of trial.” (citing Article 38(a),
UCMJ, 10 U.S.C. § 838)). We assume without deciding that Government per-
sonnel, and not the military judge, are accountable for the time it takes to re-
turn a record to the court. We are fairly at ease in making that assumption
here because the appellate record does not yield reasons why we might exclude
the time it took the military judge to comply with R.C.M. 1104(d).
Appellant claims his opposition to the Government’s request for additional
time to comply with the court’s order should suffice to show that Appellant
demanded his right to speedy appellate review. We disagree, and weigh this
factor slightly in favor of the Government. We further note that even if Appel-
lant’s opposition to the motion was a demand for speedy appellate review, it
would only slightly weigh in his favor because no Moreno standards were im-
plicated in the post-trial and appellate review of his case. Finally, Appellant
has not shown the Government’s 52-day delay, and not other factors unrelated
to the delay such as his convictions, is the cause of his claimed prejudice. Ap-
pellant’s concern that he might lose his job and might not find work is not the
type of anxiety beyond that normally experienced by any appellant waiting for
the completion of appellate review. See Moreno, 63 M.J. at 138–41.
In the absence of prejudice cognizable under Moreno, we find the delay was
not so egregious as to “adversely affect the public’s perception of the fairness
and integrity of the military justice system.” Toohey, 63 M.J. at 362. We also
consider whether this is an appropriate case to exercise our authority to grant
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United States v. Muller, No. ACM 39323 (rem)
relief under Article 66(c), UCMJ. Having considered the post-trial delay in
light of the CAAF’s guidance in United States v. Tardif, 57 M.J. 219, 224
(C.A.A.F. 2002) (where Courts of Criminal Appeals retain the authority to
grant sentence relief for unexplained and unreasonable post-trial delay even
absent prejudice), we find the Government’s conduct does not impact the sen-
tence that “should be approved.” See Article 66(c), UCMJ.
B. Allegation of UCI
In his second issue, Appellant claims the convening authority committed
actual and apparent UCI. Appellant contends the convening authority unlaw-
fully directed the military judge to “verify” that a document purporting to be
an EPR for Appellant was the same exhibit the military judge reviewed and
admitted in evidence as Prosecution Exhibit 7 at Appellant’s sentencing hear-
ing. Appellant essentially repeats concerns he raised in the motion that this
court denied when it was initially before the court, except Appellant now asks
that we set aside the bad-conduct discharge, rather than order a different con-
vening authority and legal office to manage any future attempts to correct the
record, as he had initially requested. To resolve Appellant’s second issue, we
again rely on the procedural history of this case.
1. Law
The prohibition against UCI arises from Article 37(a), UCMJ, which pro-
vides in relevant part that:
[n]o person subject to this chapter may attempt to coerce or, by
any unauthorized means, influence the action of a court-martial
or any other military tribunal or any member thereof, in reach-
ing the findings or sentence in any case, or the action of any con-
vening, approving, or reviewing authority with respect to his ju-
dicial acts.
10 U.S.C. § 837(a); see also R.C.M. 104(a)(2) (substituting “code” for “chapter,”
and “such authority’s judicial acts” for “his judicial acts”).
An appellate court reviews allegations of UCI de novo. United States v.
Barry, 78 M.J. 70, 77 (C.A.A.F. 2018); United States v. Salyer, 72 M.J. 415,
423–24 (C.A.A.F. 2013) (reviewing “lower court’s analysis, reasoning, and con-
clusion regarding the appearance of unlawful command influence” de novo).
“Two types of unlawful command influence can arise in the military justice
system: actual unlawful command influence and the appearance of unlawful
command influence.” United States v. Boyce, 76 M.J. 242, 247 (C.A.A.F. 2017).
Actual UCI “is an improper manipulation of the criminal justice process which
negatively affects the fair handling and/or disposition of a case.” Id. (citations
omitted). In order to demonstrate actual UCI, the appellant “must show: (1)
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United States v. Muller, No. ACM 39323 (rem)
facts, which if true, constitute unlawful command influence; (2) that the pro-
ceedings were unfair; and (3) that the unlawful command influence was the
cause of the unfairness.” Salyer, 72 M.J. at 423 (citing United States v. Richter,
51 M.J. 213, 224 (C.A.A.F. 1999)). “[T]he initial burden of showing potential
unlawful command influence is low, but is more than mere allegation or spec-
ulation.” Id. (citing United States v. Stoneman, 57 M.J. 35, 41 (C.A.A.F. 2002)).
Once an issue of unlawful command influence is raised by some
evidence, the burden shifts to the government to rebut an alle-
gation of unlawful command influence by persuading the Court
beyond a reasonable doubt that (1) the predicate facts do not ex-
ist; (2) the facts do not constitute unlawful command influence;
or (3) the unlawful command influence did not affect the findings
or sentence.
Id. (citing United States v. Biagase, 50 M.J. 143, 151 (C.A.A.F. 1999)). The
question whether the Government has met its burden of demonstrating, be-
yond a reasonable doubt, that court-martial proceedings were untainted by un-
lawful command influence is a question we review de novo. United States v.
Lewis, 63 M.J. 405, 413 (C.A.A.F. 2006) (citations omitted).
Unlike actual UCI, a meritorious claim of an appearance of UCI does not
require prejudice to an accused. Boyce, 76 M.J. at 248. “Instead, the prejudice
is what is done to the ‘public’s perception of the fairness of the military justice
system as a whole.’” United States v. Proctor, ___ M.J. ___, No. 20-0340, 2021
CAAF LEXIS 509, at *13 (C.A.A.F. 2 Jun. 2021) (quoting id.). As with actual
UCI, “when an appellant asserts there was an appearance of unlawful com-
mand influence[,] [t]he appellant initially must show ‘some evidence’ that un-
lawful command influence occurred.” Boyce, 76 M.J. at 249 (footnote omitted)
(quoting Stoneman, 57 M.J. at 41) (additional citation omitted).
“Once an appellant presents ‘some evidence’ of unlawful command influ-
ence, the burden then shifts to the government to. . . . prov[e] beyond a reason-
able doubt that either the predicate facts proffered by the appellant do not ex-
ist, or the facts as presented do not constitute unlawful command influence.”
Id. (quoting Salyer, 72 M.J. at 423) (additional citation omitted). If the Govern-
ment fails to rebut the appellant’s factual showing, it may still prevail against
a claim of apparent UCI if it proves “beyond a reasonable doubt that the un-
lawful command influence did not place ‘an intolerable strain’ upon the public’s
perception of the military justice system and that ‘an objective, disinterested
observer, fully informed of all the facts and circumstances, would [not] harbor
a significant doubt about the fairness of the proceeding.’” Id. at 249–50 (alter-
ation in original) (quoting Salyer, 72 M.J. at 423).
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United States v. Muller, No. ACM 39323 (rem)
2. Analysis
Appellant raises the specter of UCI during appellate review of his court-
martial after this court remanded the record for correction. Appellant asserts
that the language used by the convening authority did not give the military
judge any discretion. Instead, he claims the convening authority required the
military judge to verify that the document was the same as the exhibit that
was omitted from the record of trial. By using such directive language, Appel-
lant claims, the convening authority exerted actual UCI over the post-trial pro-
cessing of the certificate of correction and his unlawful action warrants relief.
In the alternative to this court determining that actual UCI tainted the pro-
ceedings, Appellant argues there is still an appearance of UCI. That is, an ob-
jective and disinterested observer would view the language of the convening
authority’s direction—and more specifically, its lack of any discretionary terms
such as “whether the exhibit is what the military judge reviewed at trial”—as
stripping the military judge of his independence. Appellant claims that a dis-
interested member of the public would question how the Government handled
the record correction process and its overall fairness.
The Government disputes Appellant’s claims of actual and apparent UCI.
In its answer, the Government principally relies on the dissenting opinion by
Judge Maggs in the CAAF decision that remanded Appellant’s case to this
court. Muller, 79 M.J. at 361–63 (Maggs, J., dissenting in the decision to re-
mand to this court for a new review under Article 66(c), UCMJ). The Govern-
ment counters, as Judge Maggs said in his dissenting opinion, that Appellant’s
“argument had no merit” when he claimed the convening authority unlawfully
influenced the proceeding to correct the record. Id. at 362. The Government
makes the point that the common meaning of the word “verify” does not sug-
gest that the person doing the verifying has no discretion in his task or must
reach a certain result. In this regard, Judge Maggs concluded,
To be sure, in some contexts the verb “to verify” may mean “to
swear to or affirm the truth of.” Merriam-Webster's Third Inter-
national Dictionary of the English Language Unabridged (2002)
(entry for “verify”). But in other contexts the verb simply means
“to check or test the accuracy or exactness of.” Id. The context
here shows that, when the convening authority ordered the mil-
itary judge to “verify” the exhibit was the correct one, the con-
vening authority was not directing the military judge to make a
particular decision. An exhibit missing from the record needed
to be added, and the convening authority was simply asking the
military judge to confirm whether the transmitted exhibit was
or was not the correct exhibit.
79 M.J. at 362–63 (Maggs, J., dissenting).
12
United States v. Muller, No. ACM 39323 (rem)
We agree with the Government that there is no indication in the convening
authority’s memorandum that the convening authority expected a certain re-
sult or that there would be consequences for not achieving that result. It bears
observing that Appellant does not claim the corrected record is somehow in-
complete or inaccurate as a consequence of the convening authority having di-
rected the military judge to verify that the document was the same as the ex-
hibit that was missing from the record. Not only is it the case that Appellant
was not prejudiced by the convening authority’s memorandum, his right to ap-
pellate review is unmistakably advanced by this court having the benefit of a
complete record of trial to conduct its statutory review.
More to the point, we find Appellant has not demonstrated some evidence
of facts, which if true, constitute UCI or that the proceedings to correct the
record were unfair. Salyer, 72 M.J. at 423. We are similarly convinced the con-
vening authority did not “attempt to coerce or, by any unauthorized means,
influence the action of a court-martial . . . or any member thereof, in reaching
the findings or sentence in any case, or the action of any convening, approving,
or reviewing authority with respect to his judicial acts.” Article 37(a), UCMJ.
Appellant’s claim “consists instead of speculative or conclusory observations,”
of unlawful conduct and undue influence and so “the claim may be rejected on
that basis.” United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997). In this
regard, we find no evidence of “an improper manipulation of the criminal jus-
tice process which negatively affect[ed] the fair handling and/or disposition of
[Appellant’s] case.” Boyce, 76 M.J. at 247 (citing United States v. Allen, 33 M.J.
209, 212 (C.M.A. 1991)) (other citations omitted). We are also convinced beyond
a reasonable doubt that the facts do not constitute UCI and that a fully in-
formed, objective, disinterested observer would not harbor a significant doubt
about the fairness of the proceeding. Salyer, 72 M.J. at 423. For these reasons,
we decline to grant relief.
C. Sentence Appropriateness
In his third issue, Appellant claims the circumstances surrounding his of-
fenses do not warrant a sentence that includes a lifetime stigma of a punitive
discharge.
1. Additional Background
While acknowledging some amount of punishment is appropriate, Appel-
lant asks this court to carefully review the circumstances with the understand-
ing of how incidents of childhood trauma affected his motivations and decision-
making. To this end, Appellant draws our attention to the Defense’s sentencing
case and evidence of an abusive and dysfunctional upbringing. Appellant ex-
plains in this appeal that he internalized his childhood trauma and joined the
Air Force in an attempt to escape his problems, but then turned to alcohol and
13
United States v. Muller, No. ACM 39323 (rem)
drugs as way to cope with his problems. Appellant also explains he was diag-
nosed with, and exhibited signs of, several mental health disorders, which he
asks this court to consider in assessing sentence appropriateness.
2. Law
A CCA “may affirm only . . . the sentence or such part or amount of the
sentence, as it finds correct in law and fact and determines, on the basis of the
entire record, should be approved.” Article 66(c), UCMJ. “We assess sentence
appropriateness by considering the particular appellant, the nature and seri-
ousness of the offense[s], the appellant’s record of service, and all matters con-
tained in the record of trial.” United States v. Anderson, 67 M.J. 703, 705 (A.F.
Ct. Crim. App. 2009) (per curiam) (citations omitted). While we have great dis-
cretion in determining whether a particular sentence is appropriate, we are
not authorized to engage in exercises of clemency. United States v. Nerad, 69
M.J. 138, 146 (C.A.A.F. 2010).
3. Analysis
We have given individualized consideration to Appellant, the nature and
seriousness of his offenses, his record of service, and all other matters con-
tained in the record of trial. We consider these matters at the same time that
we again consider that this court retains authority to grant sentence relief for
unexplained and unreasonable post-trial delay even in the absence of preju-
dice. Tardif, 57 M.J. at 224.
In addition to matters in extenuation and mitigation, evidence at trial
showed that Appellant’s use and distribution of cocaine often involved other
Airmen, and he twice used drugs with other Airmen on Vandenberg AFB. Ap-
pellant’s adjudged sentence included nine months of confinement and a bad-
conduct discharge compared to the maximum punishment of 25 years of con-
finement and a dishonorable discharge for these components. Understanding
we have a statutory responsibility to affirm only so much of the sentence that
is correct and should be approved, Article 66(c), UCMJ, we determine to affirm
the adjudged sentence that was approved by the convening authority.
III. CONCLUSION
The findings and sentence approved by the convening authority are correct
in law and fact, and no error materially prejudicial to the substantial rights of
14
United States v. Muller, No. ACM 39323 (rem)
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. 6
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
6 We again note that the convening authority’s memorandum dated 20 June 2017,
which denied Appellant’s request for deferment of the reduction in rank and automatic
forfeiture of pay, failed to articulate a reason for the denial as required by R.C.M.
1101(c)(3). However, Appellant claims no prejudice from this error. Even if we assume
some colorable showing of possible prejudice is the standard for review, see United
States v. Muller, No. ACM 39323, 2018 CCA LEXIS 574, at *1–2 (A.F. Ct. Crim. App.
21 Dec. 2018) (per curiam) (unpub. op.) (citing United States v. Jalos, No. ACM 39138,
2017 CCA LEXIS 607, at *6–7 (A.F. Ct. Crim. App. 5 Sep. 2017) (unpub. op.) (citations
omitted)), we conclude no relief is warranted.
15