                       UNITED STATES, Appellee

                                    v.

                 James L. MACKIE, Airman First Class
                      U.S. Air Force, Appellant

                              No. 13-0184

                        Crim. App. No. S31090

       United States Court of Appeals for the Armed Forces


                        Decided April 19, 2013

                               PER CURIAM

                                 Counsel


For Appellant:   Captain Luke D. Wilson.

For Appellee:    Gerald R. Bruce, Esq.

Military Judges: James L. Flanary (court-martial) and Amy M.
Bechtold (DuBay hearing)


       This opinion is subject to revision before final publication.
United States v. Mackie, No. 13-0184/AF


     PER CURIAM:

     We grant review of this case to clarify that even after an

initial appellate court decision, the Moreno standard for speedy

post-trial review is still applicable as the case continues

through the appellate process.1   See United States v. Moreno, 63

M.J. 129, 142 (C.A.A.F. 2006).    However, we conclude that the

post-trial delay was harmless beyond a reasonable doubt.    United

States v. Allison, 63 M.J. 365, 371 (C.A.A.F. 2006).

     Mackie was tried and convicted, pursuant to his pleas, at a

special court-martial by military judge alone on September 2,

2006.2   On September 24, 2007, the United States Air Force Court

of Criminal Appeals (CCA) conducted its initial appellate review

of the case.   United States v. Mackie, 65 M.J. 762 (A.F. Ct.

Crim. App. 2007).   It determined that the military judge

improperly denied Mackie’s pretrial request for a sanity board

under Rule for Courts-Martial 706 and returned the record of

trial to the Judge Advocate General of the Air Force (JAG) to be


1
  We grant review on the following assigned issue: “Whether
Appellant has been denied due process by extensive post-trial
delays.”
2
  Mackie was convicted of absence without leave, operating a
motor vehicle while impaired, larceny, and burglary. Articles
86, 111, 121, and 129, Uniform Code of Military Justice (UCMJ),
10 U.S.C. §§ 886, 911, 921, 929 (2006). He was sentenced to a
bad-conduct discharge, confinement for seven months, and
reduction to pay grade E-1. On April 11, 2006, pursuant to a
pretrial agreement, the convening authority reduced the
confinement to six months, but otherwise approved the sentence.



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United States v. Mackie, No. 13-0184/AF


sent to an appropriate convening authority who may order a

sanity board.    Id. at 765.   Over five years later, on October

24, 2012, the CCA completed its appellate review of this case

and affirmed the findings and sentence.    United States v.

Mackie, No. ACM S31090 (f rev), 2012 CCA LEXIS 412, at *15, 2012

WL 5392410, at *6 (A.F. Ct. Crim. App. Oct 24, 2012).    In

rejecting Mackie’s argument that he had been denied due process

by the extensive post-trial delay, the CCA interpreted our

holding in United States v. Roach, 69 M.J. 17 (C.A.A.F. 2010),

to mean that the post-trial appellate delay standard set out in

Moreno does not apply when:    (1) the delay occurred after an

initial appellate decision and (2) the delay was not malicious.

Id., 2012 WL 5392410, at *5.

     In Roach, nineteen months of delay occurred after the

initial appellate decision by the CCA.    Roach, 69 M.J. at 22.

This delay facially violated the Moreno presumption.     Id.   But

during those nineteen months, this court twice became involved

to resolve legitimate legal issues.    None of the periods of time

between the actions of the CCA and this court exceeded the

Moreno standard, nor did they implicate concerns of “malicious

delay.”   Id. (internal quotation marks omitted).   Therefore, we

concluded that the Moreno presumption of unreasonable delay was

not triggered.   Id.   We did not conclude that Moreno is




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inapplicable in the wake of an initial appellate decision unless

there is malicious delay.

       Here, the CCA initially returned the case to the JAG to be

sent to a convening authority who was authorized to order a

sanity board.   That sanity board was conducted, but the

convening authority took no further action on the case for over

two years.   Our decision in Moreno is equally applicable in this

factual situation and the CCA erred in concluding otherwise.

Nevertheless, we are convinced that the delay in this case was

harmless beyond a reasonable doubt.      See Allison, 63 M.J. at

371.

                              Decision

       The decision of the United States Air Force Court of

Criminal Appeals, as modified, is affirmed.




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