UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                          BURTON, HAGLER, and SCHASBERGER
                               Appellate Military Judges

                              UNITED STATES, Appellee
                                          v.
                        Staff Sergeant LONNIE L. PETERKIN
                            United States Army, Appellant

                                     ARMY 20160278

             Headquarters, United States Army Recruiting Command
                  Tyesha L. Smith, Military Judge (arraignment)
                      Gary A. Loxley, Military Judge (trial)
           Major Nagesh Chelluri, Acting Staff Judge Advocate (pretrial)
              Colonel Rick S. Lear, Staff Judge Advocate (post-trial)

For Appellant: Major Ryan T. Yoder, JA; Major J. David Hammond, JA (on brief).

For Appellee: Lieutenant Colonel Eric K. Stafford, JA; Major Michael E. Korte, JA;
Captain Allison L. Rowley, JA (on brief).

                                        27 April 2018

                                -----------------------------------
                                 MEMORANDUM OPINION
                                -----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

SCHASBERGER, Judge:

       Appellant, Staff Sergeant (SSG) Lonnie L. Peterkin, appeals his conviction
for larceny, alleging the military judge deprived him a fair trial when the military
judge denied his challenges against two panel members. We find no error in the
military judge’s rulings on the panel member challenges. Appellant also requests
relief due to post-trial errors by the government. We agree that the government
erred during the post-trial process, but find appellant was not prejudiced by the error
and is, therefore, entitled to no relief.

       An officer and enlisted panel sitting as a special court-martial convicted
appellant, contrary to his pleas, of one specification of larceny in violation of
Article 121, Uniform Code of Military Justice, 10 U.S.C. § 921 (2012). The panel
sentenced appellant to a bad-conduct discharge. The convening authority approved
the sentence.
PETERKIN—ARMY 20160278

                                  BACKGROUND

       In July 2012, appellant was assigned to the U.S. Army Recruiting Company,
Greenville, North Carolina, a unit within the 2nd Recruiting Brigade. His new duty
station was remote from the company headquarters.

      Initially appellant stayed in a local hotel and was entitled to basic allowance
for housing (BAH) while in the hotel. In August 2012, appellant moved into base
housing. This housing was owned by the government and appellant did not pay any
rent. Thus, he was no longer entitled to BAH.

       Appellant continued to receive BAH the entire time he lived in base housing.
He knew he was not entitled to the BAH and initially set aside the money so he
could pay it back. He took no steps to return the money or stop the payments. In
total he received $45,000.00 in unauthorized BAH payments.

                        A. Challenges to the Panel Members

       At trial, the defense challenged four panel members for actual and implied
bias, including Lieutenant Colonel (LTC) FC. Prior to the court-martial, LTC FC
served as an investigating officer, to include conducting an administrative
investigation in which another panel member, Command Sergeant Major (CSM) WH,
was one of the subjects. 1

      At the time of the court-martial, the investigation was still pending action by
the appointing authority. Lieutenant Colonel FC had concluded his duties, finding
no evidence of improper conduct by CSM WH.

      To support their challenge of LTC FC, defense counsel argued:

             [It] is very concerning to the defense in that [CSM WH]
             may feel awkward or unable to talk. That specific
             investigation was an [Equal Opportunity Office (EO)]
             investigation and I do have a minority client. So I don’t
             want [CSM WH] to feel like he has to follow whatever
             [LTC FC] says. I think it’s important that he—he not sit
             on this panel.

      In response, government counsel noted that CSM WH mentioned no concerns
about serving on a panel with LTC FC. In addition, LTC FC stated his role as an



1
 The investigation conducted pursuant to Army Regulation 15-6 concerned
allegations that CSM WH and his brigade commander discriminated against a soldier
on the basis of race when initiating an administrative discharge.


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investigating officer was to consider all of the evidence and make independent
judgments based on the facts and that he would do the same as a panel member.

      Before ruling, the military judge explained:

             I’ve considered the challenge for cause of [LTC FC] on
             the basis of both actual and implied bias and the mandate
             to liberally grant defense challenges. The challenge is
             denied because [LTC FC] said that there would be no
             issues, it would not affect this case. No relationship was
             discovered during the questioning of his role between the
             cases he investigated and his ability not to serve as a fair,
             impartial, and objective panel member in this case.

       The defense also challenged CSM AB and CSM NL. The defense argued
CSM AB had an inelastic disposition towards findings and had a working
relationship with both CSM NL and CSM WH. The defense claimed CSM NL could
not be impartial because his mother had financial problems and because he had
investigated similar cases in the past. The military judge denied both challenges,
finding the defense did not meet its burden to show either actual or implied bias.
The defense used its peremptory challenge against CSM AB.

                                 B. Post-Trial Errors

       After receiving the staff judge advocate’s recommendation (SJAR) and the
record of trial, the defense submitted clemency matters pursuant to Rule for Courts-
Martial [hereinafter R.C.M.] 1105. In their clemency matters, defense counsel
alleged the military judge deprived appellant of a fair trial by not granting the
defense challenges of two panel members, LTC FC and CSM AB. As a remedy, the
defense requested the convening authority “suspend the bad-conduct discharge,
which will allow the appellate court to decide the issue and give you flexibility to
impose the adjudged punishment (after appellate review) if SSG Peterkin commits
any further misconduct.”

       In his addendum to the SJAR, the staff judge advocate (SJA) listed the
clemency matters submitted by the defense. The addendum correctly noted the
defense request to suspend the bad-conduct discharge but incorrectly stated: “[t]here
is no allegation of legal error in the request for clemency submitted by the defense
and, in my opinion, none was committed.” The SJA advised the convening authority
that he must consider the defense request and reiterated his recommendation to
approve the sentence as adjudged, but added that “as the convening authority, you
are not bound by my recommendation.”

      On 19 August 2016, the convening authority took initial action, approving the
adjudged sentence. The unit mailed the record to this court on 30 January 2017, and



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PETERKIN—ARMY 20160278

it was received on 6 February 2017. The delay between action and receipt was 171
days. The government offered no satisfactory excuse for this delay, but explained
that the record of trial was not maintained in its proper place.

                               LAW AND DISCUSSION

                         A. Challenges to the Panel Members

       As an assignment of error appellant argues that the military judge erred by not
granting the defense challenge against LTC FC. In his clemency matters, defense
counsel alleged the military judge also erred when he denied the challenge against
CSM AB. We will address these alleged errors as both actual and implied bias.

       Actual bias is a question of fact to be decided by the military judge based on
the responses of the member and any other evidence presented at the court-martial.

             “A military judge’s ruling on a challenge for cause is
             reviewed for an abuse of discretion. Military judges are
             afforded a high degree of deference on rulings involving
             actual bias. This reflects, among other things, the
             importance of demeanor in evaluating the credibility of a
             member’s answers during voir dire.”

United States v. Woods, 74 M.J. 238, 243 (C.A.A.F. 2015) (quoting United States v.
Downing, 56 M.J. 419, 422 (C.A.A.F. 2002)). In United States v. Daulton, our
superior court made clear that the burden of establishing a legal and factual basis to
support a challenge for cause is on the party making the challenge. 45 M.J. 212, 217
(C.A.A.F. 1996).

       In light of this standard, there is no basis for us to disturb the military judge’s
finding that neither LTC FC nor CSM AB exhibited actual bias. Government
counsel questioned LTC FC extensively on his role as an investigating officer and
his relationship with CSM WH. 2 The military judge was able to gauge LTC FC’s
responses and assess his demeanor and sincerity. Likewise, nothing in CSM AB’s
responses tends to show he was predisposed to an outcome in this case. We
conclude the military judge did not abuse his discretion in denying the challenges
for cause for actual bias.

       The test for implied bias is objective, viewing the circumstances through the
eyes of the public and focusing on the perception or appearance of fairness. United
States v. Clay, 64 M.J. 247, 276 (C.A.A.F. 2007) (quoting United States v. Rome, 47
M.J. 467, 469 (C.A.A.F. 1998)). “We look to determine whether there is ‘too high a
2
  Defense counsel did not have any follow-up questions for LTC FC regarding this
investigation. Instead, defense counsel asked: “Now what I really want to know is
how you have never had any problem updating your ORB?”


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PETERKIN—ARMY 20160278

risk that the public will perceive’ that the accused received less than a court
composed of fair, impartial, equal members.” United States v. Moreno 63 M.J. 129,
134 (C.A.A.F. 2006) (quoting United States v. Wiesen, 56 M.J. 172, 176 (C.A.A.F.
2001)).

       The standard of review for an implied bias challenge is “less deferential than
abuse of discretion, but more deferential than de novo review.” Id. Further, where a
military judge has addressed implied bias by applying the liberal grant mandate on
the record, that military judge will accordingly be granted “more deference on
review than one that does not.” Clay, 64 M.J. at 277.

       In his ruling rejecting the implied bias challenges against LTC FC and
CSM AB, the military judge plainly stated he considered the liberal grant mandate as
part of his decision. Thus, we give more deference to his ruling than if he had failed
to do so.

       Defense counsel argued that because their client was a minority they did not
want CSM WH to feel pressured by the open equal opportunity investigation. Yet
the defense did not challenge the subject of the investigation, CSM WH, who was
accused of violating EO policy. Instead, the defense challenged the investigator,
LTC FC.

       Similarly, although the defense claimed CSM AB’s role as the brigade CSM
would have an adverse impact on CSM WH and CSM NL, there was no evidence
adduced that either of the two members would be unduly influenced by CSM AB.
Additionally, CSM AB was neither the supervisor nor the rater of the other two
members. Due to the geographical dispersion of the unit, none of the CSMs on the
panel served in the same location and did not interact with each other on a daily
basis.

      Under these circumstances and our review of the record, we find no reason
why the public would question the objectivity of the panel or the fairness of the
proceedings. Thus, we conclude the military judge did not err in his denial of the
implied bias challenges.

                                B. Post-Trial Errors

       Appellant alleges and we agree that the government committed error during
the post-trial process. First, the SJA’s addendum to the SJAR mistakenly stated that
the clemency matters pursuant to R.C.M. 1105 raised no allegations of legal error.
Second, the Office of the Staff Judge Advocate failed to mail the record to this court
for 164 days after the convening authority took action.

       In their clemency matters, defense counsel alleged the military judge erred in
denying the challenges against LTC FC and CSM AB. As discussed above, we find
no error by the military judge in his denial of either of those challenges. Even so,


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the SJA’s addendum failed to address the allegation of legal error, as required by
R.C.M. 1106(d)(4).

       “Ordinarily, ‘failure by the staff judge advocate to respond to an allegation of
legal error . . . requires remand to the convening authority for comment by the staff
judge advocate.’” United States v. Arias, 72 M.J. 501, 505 (Army Ct. Crim. App.
2013) (quoting United States v. Hill, 27 M.J. 293, 297 (C.M.A. 1988)). We may
deviate from the general rule when it is foreseeable that acknowledging the defense
error would not have led to a different recommendation by the SJA or to favorable
action by the convening authority. Hill, 27 M.J. at 297.

       Despite the above mentioned mistake, the rest of the addendum contained the
information required for the convening authority to take action. The convening
authority was properly informed that the defense requested clemency, in the form of
suspension of the bad-conduct discharge. The SJA gave his recommendation—
namely, that the convening authority approve the sentence as adjudged—and
correctly informed the convening authority that he was not required to follow the
SJA’s recommendation. Finally, the addendum informed the convening authority
that he had to consider the defense submission.

       As a result, we conclude the SJA’s failure to respond to the allegation of legal
error to be harmless. The allegation was without merit, so there is no reason to
suspect that a mistake-free addendum would have led to a “favorable
recommendation by the staff judge advocate or to corrective action by the convening
authority.” Id.

      Finally, appellant alleges his due process rights were violated by the
171 days the government took between action by the convening authority and
docketing of the case with this court. We disagree.

       The government’s failure to mail the record for 164 days is inexcusable.
Under Moreno, a presumption of unreasonable delay is triggered when a record
is not docketed with this court within thirty days. 63 M.J. at 142. Applying the
four-factor analysis under Barker v. Wingo, we find no evidence that appellant
was prejudiced by the delay. 407 U.S. 514, 530-32 (1972). Therefore, although
we conclude the delay was unreasonable, it does not rise to the level of a due
process violation.

       Although we find no due process violation, we still review the
appropriateness of appellant’s sentence in light of the dilatory post-trial
processing. UCMJ art. 66(c); United States v. Tardif, 57 M.J. 219, 224
(C.A.A.F. 2002) (“[Pursuant to Article 66(c), UCMJ, service courts are] required
to determine what findings and sentence ‘should be approved,’ based on all the
facts and circumstances reflected in the record, including the unexplained and
unreasonable post-trial delay.”); see generally United States v. Toohey, 63 M.J.


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PETERKIN—ARMY 20160278

353, 362-63 (C.A.A.F. 2006); United States v. Ney, 68 M.J. 613, 617 (Army Ct.
Crim. App. 2010).

       While such unjustified post-trial delay might ordinarily warrant relief, in this
case, appellant’s punishment for stealing $45,000.00 was a bad-conduct discharge
and no confinement. After reviewing the record, we find the sentence as approved
by the convening authority to be appropriate. Consequently, despite the
government’s failure to meet its obligation to provide timely post-trial processing of
the record, relief is not warranted.

                                   CONCLUSION

      On consideration of the entire record, the findings of guilty and the sentence
are AFFIRMED.

      Senior Judge BURTON and Judge HAGLER concur.

                                           FOR THE
                                           FOR THE COURT:
                                                   COURT:




                                           MALCOLM
                                           MALCOLM H.  H. SQUIRES,
                                                          SQUIRES, JR.
                                                                   JR.
                                           Clerk of Court
                                           Clerk of Court




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