          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                         UNITED STATES

                                                     v.

                         Airman First Class JOSHUA D. NEWSOM
                                 United States Air Force

                                              ACM 38224

                                           16 January 2014

         Sentence adjudged 8 June 2012 by GCM convened at Malmstrom Air Force
         Base, Montana. Military Judge: Martin T. Mitchell (sitting alone).

         Approved Sentence: Dishonorable discharge, confinement for 2 years, and
         reduction to E-1.

         Appellate Counsel for the Appellant: Captain Christopher D. James and
         Dwight H. Sullivan.

         Appellate Counsel for the United States: Colonel Don M. Christensen;
         Lieutenant Colonel Nurit Anderson; and Gerald R. Bruce, Esquire.

                                                  Before

                            ROAN, MARKSTEINER, and WIEDIE
                                Appellate Military Judges

                                    OPINION OF THE COURT

                    This opinion is subject to editorial correction before final release.



WIEDIE, Judge:

        A general court-martial composed of a military judge sitting alone convicted the
appellant, consistent with his pleas, of one specification of conspiracy to commit larceny;
six specifications of larceny of nonmilitary property; one specification of making a false
official statement; one specification of wrongful use of marijuana; one specification of
failure to obey a lawful order; one specification of dereliction of duty; and one
specification of unlawful entry, in violation of Articles 81, 121, 107, 112a, 92, and
134, UCMJ, 10 U.S.C. §§ 881, 921, 907, 912a, 892, 934. Contrary to his pleas, the
appellant was also convicted of one specification of larceny of military property and one
specification of larceny of nonmilitary property, in violation of Article 121, UCMJ. The
adjudged sentence consisted of a dishonorable discharge, confinement for 2 years, and
reduction to E-1. The convening authority approved the sentence as adjudged, but
waived automatic forfeitures for the benefit of the appellant’s dependents.

       The appellant has submitted three assignments of error: (1) Whether the military
judge erred by failing to suppress the appellant’s confession and evidence derived
therefrom; (2) Whether the Government’s violation of the 120-day post-trial processing
standard for taking action after completion of trial warrants meaningful relief under
United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002); and (3) Whether the evidence is
factually insufficient to prove larceny of military property beyond a reasonable doubt.1

                                                    Background

       In his short Air Force career, the appellant engaged in numerous criminal acts
which eventually led to his court-martial. The facts surrounding most of his offenses are
not relevant for our consideration of the errors alleged. The facts pertinent to our
discussion are outlined below.

       The appellant and Airman Basic (AB) DN had been friends prior to a falling out
over the appellant’s having implicated AB DN in a criminal investigation. When AB DN
was placed in pretrial confinement, the appellant was unable to retrieve some uniform
items and a fish tank he had left in AB DN’s dorm room.

       Without AB DN’s permission, the appellant and Airman First Class (A1C) MG
entered AB DN’s dorm room through an unlocked window. The appellant retrieved his
items and climbed back out the window. While the appellant was retrieving his
belongings, A1C MG noticed AB DN’s military gear in the bottom of a closet. A1C MG
grabbed an A-bag and stuffed the gear into it.

       A1C MG handed the bag to the appellant through the window. The appellant
asked what was in the bag and A1C MG responded that it was gear from AB DN’s closet.
A1C MG asked the appellant if he would keep the stuff at his apartment. After leaving
the dorms, the pair drove to the appellant’s apartment where the gear was stored for a
month and a half before A1C MG picked it up.

       On 23 August 2011, the appellant was questioned by military investigators
concerning a myriad of alleged crimes. The appellant was advised of his rights under
Article 31, UCMJ, 10 U.S.C. § 831, which he waived prior to questioning.


1
    This issue was raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).



                                                           2                                   ACM 38224
       Although he initially denied involvement multiple times at the outset of the
interview, the appellant eventually admitted to his role in the taking of the military gear
from AB DN’s room and identified A1C MG as also being involved. He also admitted to
underage drinking. After these admissions, the appellant was asked who provided the
alcohol. The appellant hesitated in responding. The investigator told that appellant that
not telling what he knew was “lying by omission” and could get him put in jail. The
appellant then identified the persons who had provided the alcohol.

      Later in the interview, the appellant confessed to marijuana and spice use. At the
conclusion of the oral interview, the appellant was again advised of his rights in
conjunction with making a written statement on an Air Force Form 1168, Statement of
Suspect/Witness/Complainant.

       Following the appellant’s admissions, investigators interviewed A1C MG. Like
the appellant, A1C MG initially denied any involvement with the larceny of AB DN’s
military gear. However, when confronted with the fact that the appellant had implicated
him, A1C MG admitted his involvement. He also confessed to numerous other larcenies
and implicated the appellant in those additional crimes.

       The appellant was also questioned by criminal investigators on 29 August and
14 September 2011 under rights advisement. On both occasions, the appellant made
incriminating admissions. At trial, the military judge denied the appellant’s motion to
suppress the 23 August 2011 statements made after the “lying by omission” comment, as
well as all evidence derived from those statements, to include the statements made on 29
August and 14 September 2011. Despite having prevailed on the motion, the
Government did not introduce any of the appellant’s three statements during their
findings case. The Government did, however, call A1C MG as a witness against the
appellant.

         The appellant’s five-day court-martial concluded on 8 June 2012. It took 83 days
for the 572 page record to be transcribed. The court reporter responsible for transcribing
the record was on medical leave for 40 of those 83 days. The record of trial was
authenticated on 21 September 2012 and the Staff Judge Advocate’s recommendation
was completed on 16 October 2012. When the appellant submitted clemency matters on
7 November 2012, he noted over 120 days had already passed since the conclusion of the
trial. The Convening Authority took action on 15 November 2012, 160 days after the
completion of the trial.

                                   Motion to Suppress

      The appellant alleges the military judge erred by failing to suppress portions of his
confession and the evidence derived therefrom which occurred after an investigator told
him that not answering a question was lying by omission and could result in him going to


                                             3                                   ACM 38224
jail.2 “The voluntariness of a confession is a question of law which we review de novo.”
United States v. Ellis, 57 M.J. 375, 378 (C.A.A.F. 2002). This Court reviews a military
judge’s findings of fact under a “clearly erroneous” standard. United States v. Pipkin,
58 M.J. 358, 360 (C.A.A.F. 2003). “An abuse of discretion occurs when the trial court’s
findings of fact are clearly erroneous or if the court’s decision is influenced by an
erroneous view of the law.” United States v. Freeman, 65 M.J. 451, 453 (C.A.A.F. 2008)
(citation omitted). “The abuse of discretion standard is a strict one, calling for more than
a mere difference of opinion. The challenged action must be ‘arbitrary, fanciful, clearly
unreasonable,’ or ‘clearly erroneous.’” United States v. McElhaney, 54 M.J. 120,
130 (C.A.A.F. 2000) (quoting United States v. Miller, 46 M.J. 63, 65 (C.A.A.F. 1997);
United States v. Travers, 25 M.J. 61, 62 (C.M.A. 1987)).

       “[A]n involuntary statement or any derivative evidence therefrom may not be
received in evidence against an accused who made the statement.” Mil. R. Evid. 304(a).
“A statement is ‘involuntary’ if it is obtained in violation of the self-incrimination
privilege or due process clause of the Fifth Amendment to the Constitution of the United
States, Article 31, [UCMJ,] or through the use of coercion, unlawful influence, or
unlawful inducement.” Mil. R. Evid. 304(c)(3).

       Under the provisions of Article 31, UCMJ, a suspect’s right to remain silent does
not depend upon whether he is innocent or guilty; it depends upon whether he is a
suspect. United States v. Hundley, 45 C.M.R. 94 (C.M.A. 1972). “If a suspect is warned
that he can remain silent only if he was in fact involved in the offense of which he is
suspected, that advice is improper as a part of an Article 31[, UCMJ,] warning.” Id.; see
also United States v Williams, 9 C.M.R. 60 (C.M.A. 1953); United States v. Elliott,
35 C.M.R. 153 (C.M.A. 1964).

       In the present case, the Government did not introduce any of the three statements
the appellant made and, thus, any challenge to the military judge’s ruling concerning the
statements is moot. However, the appellant also contends that, but for his confession,
A1C MG would not have confessed and thereby implicated him in additional crimes.
The appellant further argues that A1C MG’s confession and subsequent testimony against
him was derivative of his 23 August 2011 confession. While it is true that A1C MG
confessed after being confronted with the fact that the appellant implicated him, we find
the claim that he would not have confessed but for being implicated by the appellant to be
dubious. Nonetheless, it does not matter to our analysis. The appellant’s position is
simply not supported by the facts. Before the investigator said anything at all about
lying by omission, the appellant had admitted to his involvement in the break-in at
AB DN’s room and that A1C MG was involved.


2
 The appellant concedes that the military judge’s ruling on the suppression motion does not affect the validity of his
guilty pleas.


                                                          4                                              ACM 38224
      Considering the totality of the circumstances, we conclude the appellant’s
confession was voluntary. We hold that the military judge did not err in failing to
suppress the confession.

       We caution against any overly broad reading of our holding. We are deeply
troubled by the investigator’s decision to tell the appellant, after an Article 31, UCMJ,
rights advisement, that not answering questions is lying by omission and could result in
his being sent to jail. This is an incorrect statement of the law. Even more troubling,
under different facts such conduct could very well result in a clear violation of Article 31,
UCMJ.

                                     Post-Trial Delay

        The appellant argues that he was deprived of his right to a speedy post-trial review
because 160 days elapsed between the date of sentencing and the date of the convening
authority’s action. We review an appellant’s due process right to a speedy post-trial
review de novo. United States v. Moreno, 63 M.J. 129, 135 (C.A.A.F. 2006). In Moreno,
our superior court established guidelines that trigger a presumption of unreasonable delay
in certain circumstances: (1) when the action of the convening authority is not taken
within 120 days of the completion of trial; (2) when the record of trial is not docketed by
the service Court of Criminal Appeals within 30 days of action; and (3) when appellate
review is not completed with a decision rendered within 18 months of docketing the case
before the Court of Criminal Appeals. Id. at 142. Furthermore, Article 66(c), UCMJ,
10 U.S.C. § 866(c), empowers the service courts to grant sentence relief for excessive
post-trial delay without the showing of actual prejudice required by Article 59(a), UCMJ,
10 U.S.C. § 859(a). Tardif, 57 M.J. at 224. The appellant asks that we provide him
meaningful relief under Tardif.

       In this case, the total period of time from trial to action was greater than 120 days.
Because this delay is facially unreasonable, we examine claim under the four factors set
forth in Barker v. Wingo, 407 U.S. 514, 530 (1972): “(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) prejudice.” Moreno, 63 M.J. at 135-36. When we assume error, but are
able to directly conclude it was harmless beyond a reasonable doubt, we do not need to
engage in a separate analysis of each factor. See United States v. Allison, 63 M.J. 365,
370 (C.A.A.F. 2006). This approach is appropriate in the appellant’s case. Having
reviewed the entire record in this case, we find that the appellant has articulated no
prejudice, and we likewise find none.

       We also find insufficient reason to grant the appellant relief under Tardif. The
record shows that the Government surpassed the 120-day threshold between sentencing
and action by 40 days. However, we find no evidence of bad faith or gross indifference
to the post-trial processing of the appellant’s case sufficient to prompt sentence relief or

                                              5                                    ACM 38224
to exercise our power under Article 66(c), UCMJ, to provide a windfall remedy to the
appellant by disapproving an otherwise legal sentence. Having considered the totality of
the circumstances and the entire record, we conclude that any denial of the appellant’s
right to speedy post-trial review was harmless beyond a reasonable doubt, and that relief
is not otherwise warranted. See United States v. Harvey, 64 M.J. 13, 24-25 (C.A.A.F.
2006); Tardif, 57 M.J. at 224.

                                   Factual Sufficiency

       The appellant argues that the evidence is factually insufficient to prove that he
stole military property as alleged in Specification 1 of Charge III. The appellant’s
position is that A1C MG was solely responsible for the theft and that he bears no
culpability for the crime.

       Under Article 66(c), UCMJ, we review issues of factual sufficiency de novo.
United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). 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 [ourselves]
convinced of the accused’s guilt beyond a reasonable doubt.” United States v. Turner,
25 M.J. 324, 325 (C.M.A. 1987). Review of the evidence is limited to the entire record,
which includes only the evidence admitted at trial and exposed to the crucible of cross-
examination. Article 66(c), UCMJ; United States v. Bethea, 46 C.M.R. 223, 224-25
(C.M.A. 1973).

        The appellant does not dispute that the actions of A1C MG amount to larceny.
Rather, the appellant claims he is not criminally liable for the theft because he did not
realize A1C MG was taking the military gear from the closet. This argument ignores the
facts and the law. Legally, an individual who assists in the commission of an offense is a
principal to that offense and “equally guilty of the offense as the one who commits it.”
Article 77(b)(1), UCMJ, 10 U.S.C. § 877(b)(1). The appellant went to AB DN’s room
with A1C MG. Although the appellant initially may not have been aware of A1C MG’s
intent to steal the military gear, he soon became aware of that intent and assisted in the
commission of the offense. While the appellant was standing outside of AB DN’s room
and A1C MG was inside, A1C MG handed the appellant a bag. The appellant asked what
was in the bag and was told it was gear from AB DN’s closet. The appellant not only
helped A1C MG physically remove the stolen gear from the dorm room but he stored it at
his residence for a month and a half until A1C MG eventually picked it up.

       We have considered the evidence in the light most favorable to the prosecution.
We have also made allowances for not having personally observed the witnesses. Having
paid particular attention to the matters raised by the appellant, we find the evidence
factually sufficient to support his conviction. We are convinced beyond a reasonable
doubt that the appellant is guilty of the charge and specification at issue.


                                            6                                   ACM 38224
                                       Conclusion

       The approved findings and sentence are correct in law and fact, and no error
prejudicial to the substantial rights of the appellant occurred. Articles 59(a) and 66(c),
UCMJ, 10 U.S.C. §§ 859(a), 866(c); United States v. Reed, 54 M.J. 37, 41 (C.A.A.F.
2000). Accordingly, the approved findings and sentence are

                                      AFFIRMED.



             FOR THE COURT


             STEVEN LUCAS
             Clerk of the Court




                                            7                                   ACM 38224
