          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                        UNITED STATES

                                                    v.

                      Technical Sergeant KENDALL NORMAN II
                                United States Air Force

                                        ACM 37945 (recon)

                                        04 September 2014

         Sentence adjudged 11 March 2011 by GCM convened at Joint Base
         McGuire-Dix-Lakehurst, New Jersey. Military Judge: Donald R. Eller, Jr.

         Approved sentence: Bad-conduct discharge, confinement for 6 months,
         a fine of $10,000.00, with 4 months of contingent confinement, and
         reduction to E-1.

         Appellate Counsel for the Appellant: Major Ja Rai A. Williams;
         Major Matthew T. King; and Captain Michael A. Schrama.

         Appellate Counsel for the United States: Lieutenant Colonel Linell A.
         Letendre; Lieutenant Colonel C. Taylor Smith; Major Daniel J. Breen; and
         Gerald R. Bruce, Esquire.

                                                 Before

                             ALLRED, MITCHELL, and WEBER
                                 Appellate Military Judges

                                  OPINION OF THE COURT
                                 UPON RECONSIDERATION

                   This opinion is subject to editorial correction before final release.



PER CURIAM:

      The appellant was convicted, contrary to his pleas, by a general court-martial
composed of officer members of one specification of conspiracy to commit larceny of
United States property, of a value more than $500; one specification of larceny of
United States Air Force property, of a value more than $500; and one specification of
making a false and fraudulent claim against the United States of a value of more than
$500, in violation of Articles 81, 121, and 132, UCMJ, 10 U.S.C. §§ 881, 921, 932. The
adjudged and approved sentence consisted of a bad-conduct discharge, confinement for
6 months, a fine of $10,000.00, with four months of contingent confinement, and
reduction to E-1.1

                                               Procedural History

       On 25 January 2013, The Judge Advocate General of the Air Force appointed
Mr. Laurence M. Soybel to the position of appellate military judge on the Air Force
Court of Criminal Appeals pursuant to Article 66(a), UCMJ, 10 U.S.C. § 866(a). At the
time of this appointment, Mr. Soybel, a retired Air Force officer and former appellate
military judge, was serving as a civilian litigation attorney in the Department of the
Air Force. On 25 June 2013, the Secretary of Defense, “[p]ursuant to [his] authority
under title 5, United States Code, section 3101 et seq.,” issued a memorandum that
“appoint[ed] Mr. Laurence M. Soybel, a civilian employee of the Department of the
Air Force, to serve as appellate military judge on the Air Force Court of Criminal
Appeals.” Memorandum from Sec’y of Def. Chuck Hagel for Sec’y of the Air Force
Eric Fanning (25 June 2013).

        When the appellant’s case was initially before us, the appellant raised five issues,
asserting: (1) the military judge abandoned his impartial role by asking questions that
helped the Government meet its burden of proof; (2) the military judge erred by not
instructing the members on the use of uncharged misconduct; (3) the military judge erred
when he told the members that the appellant must defend against the Additional Charge
and would not allow the members latitude to make exceptions and substitutions with
respect to the Additional Charge; (4) his rights under Article 12, UCMJ, 10 U.S.C. § 812,
were violated when he was confined in immediate association with foreign nationals; and
(5) he was subjected to cruel and unusual punishment when he, a city police officer in his
civilian capacity, was confined in a neighboring jail.

       On 7 May 2013, we issued a decision affirming the findings and sentence.
United States v. Norman II, ACM 37945 (A.F. Ct. Crim. App. 7 May 2013) (unpub. op.).
Mr. Soybel was a member of the panel that decided the case. Following Mr. Soybel’s
appointment by the Secretary of Defense on 25 June 2013, we reconsidered the decision
sua sponte and on 16 July 2013 issued a new opinion upon reconsideration. United States
v. Norman II, ACM 37945 (recon) (A.F. Ct. Crim. App. 16 July 2013). Mr. Soybel was
again a member of the panel. On 6 September 2013, the appellant filed a petition for
grant of review with our superior court. United States v. Norman, 73 M.J. 44
No. 14-0011/AF (Daily Journal 6 September 2013). On 31 October 2013, our superior

1
   On 9 June 2011, the convening authority approved the sentence as adjudged. On 22 September 2011, the
convening authority issued a supplementary court-martial order in which he remitted the portion of the sentence that
required the appellant “to be further confined until said fine is paid, but for not more than 4 months in addition to the
6 months adjudged confinement.”


                                                           2                                       ACM 37945 (recon)
court dismissed the appellant’s petition for review without prejudice and converted the
appellant’s motion to vacate, then pending before this Court, into a motion for
reconsideration. United States v. Norman, 73 M.J. 91 (C.A.A.F. 2013) (mem.). On
15 April 2014, our superior court issued its decision in United States v. Janssen,
73 M.J. 221, 225 (C.A.A.F. 2014), holding that the Secretary of Defense did not have the
legislative authority to appoint civilian employees as appellate military judges and that
his appointment of Mr. Soybel to this Court was “invalid and of no effect.”

        In light of Janssen, we granted the appellant’s motion for reconsideration on
29 April 2014 and permitted the appellant to file a supplemental assignment of errors.
The appellant submitted a supplemental assignment of errors asserting he is entitled to
relief due to excessive post-trial processing delays. With a properly constituted panel, we
have reviewed the appellant’s case, to include the appellant’s previous and current filings
and the previous opinions issued by this Court. We affirm the findings and sentence.

                                       Background

       The appellant was a reservist called to active duty at Joint Base McGuire-Dix-
Lakehurst, New Jersey (NJ), during the charged timeframe. He lived in or very near
Philadelphia, Pennsylvania, which is deemed to be outside the commuting distance for
reservists. Consequently, he was authorized to incur reimbursable lodging expenses
during his active duty tour, which lasted more than one year. Initially, he stayed in a base
lodging facility, the All American Inn, but was eventually authorized to move to a local
Candlewood Suites in Mt. Laurel, NJ, after the base lodging became too crowded.

       Airman (Amn) HA testified at the appellant’s court-martial that he was also a
reservist called to active duty and worked with the appellant. He testified that the
appellant asked him to create a false receipt indicating the appellant had stayed at the
Candlewood Suites. He offered Amn HA $500. Amn HA was staying at a Candlewood
Suites in Bordentown, NJ, and used his own receipt, which displayed the Bordentown
address, to create the document for the appellant. The Government also introduced
evidence from the appellant’s “EZ Pass” electronic toll payment account showing he
made daily trips from the base to Philadelphia. This supported the theory that he never
stayed at the Mt. Laurel Candlewood Suites but commuted approximately 50–60 miles
every day. Thus, even though he did not stay in local authorized quarters after he was
required to move out of base lodging, the appellant submitted false claims for lodging
and other authorized expenses supported by the false receipts created by Amn HA.

       The appellant’s scheme was uncovered after Amn HA wrote an anonymous letter
to the finance office stating the appellant had stolen another Airman’s receipts and
submitted false claims. Amn HA was motivated to do so by the appellant’s failure to pay
him $400 for a second set of false lodging receipts that Amn HA produced for him.
Although Amn HA tried to craft the letter to steer investigators away from himself, the


                                             3                             ACM 37945 (recon)
Air Force Office of Special Investigations was eventually able to piece the puzzle
together. Both were prosecuted.

                              Partiality of Military Judge

       Mr. MC, the former manager of the Candlewood Suites in Mt. Laurel, NJ, testified
as a Government witness. He stated that, although a reservation was made for the
appellant, he never checked into the hotel, and the reservation was cancelled. During
cross-examination, Mr. MC did, however, indicate he may have seen the appellant at the
hotel:

      Q [Defense Counsel]. Mr. [MC], you also testified at an Article 32
      hearing in this case. It was a hearing prior—back in December?

      A. Yes.

      Q. And you saw [the appellant] at that time?

      A. Yes I did.

      Q. You actually recognized him?

      A. You guys indicated to me who he was.

      Q. Do you remember talking to us at your house; I think it was last week?

      A. Uh-huh.

      Q. And we discussed, and you mentioned recognizing [the appellant] from
      the hotel?

      A. I remember the conversation, yes.

      Q. You remember telling us that you recognized him from the hotel?

      A. I may have recognized him or I may have seen him.

      Q. May have seen him at the hotel?

      A. Yeah I may have seen him.

 After the parties’ examination of Mr. MC, the military judge asked additional questions
on this topic:


                                             4                          ACM 37945 (recon)
       MJ: Notwithstanding what you may or may not have told counsel at some
       prior proceeding, take a look at [the appellant]. Sir, do you recall him
       being at your hotel or not?

       WIT: No.

       MJ: But you told defense counsel previously that he looked familiar, that
       maybe you had seen him?

       WIT: I guess anyone in uniform would look kind of familiar and that could
       be the statement or why I actually said that.

       The Government also introduced a receipt from the Mt. Laurel Candlewood Suites
in the appellant’s name that showed a $692 charge, and then the same amount credited
back, to result in no charges to the appellant. The defense’s cross-examination
highlighted the fact that the bill showed that there were actually six or seven days’ worth
of charges made to the account with the appellant’s name on it. However, later testimony
showed the charges were reversed because the appellant never checked in for his
reservation. The defense then asked Mr. MC whether changes could be made to the
records. The military judge followed up with questions whether changes could be made
to a record after a person departed. Responding to the military judge’s questions,
Mr. MC testified that if someone had stayed at the hotel and checked out; those records
could not be deleted. Mr. MC also clarified that once a bill was closed out, it could not
be changed and that in order to charge the appellant for staying at the hotel, a new bill
would have to be created. Finally, he clarified that the bill showing the cancellation due
to the appellant’s non-arrival was the only record in the hotel’s system concerning the
appellant.

       A military judge may ask questions of any witness. Simply doing so does not
indicate the judge lacks impartiality. In fact, the military judge has “wide latitude” when
asking questions pursuant to the authority in Article 46, UCMJ, 10 U.S.C. § 846, and
Mil. R. Evid. 614. See United States v. Acosta, 49 M.J. 14, 17 (C.A.A.F. 1998). “Neither
Article 46 nor Mil.R.Evid. 614 precludes a military judge from asking questions to which
he may know the witness’ answer; nor do they restrict him from asking questions which
might adversely affect one party or another.” Id. at 17–18.

        However, when asking questions of a witness, military judges must be very careful
that it does not appear they are siding with either the prosecution or defense. It is
permissible to address factual gaps and other matters as long as doing so helps the
members reach a decision. See United States v. Ramos, 42 M.J. 392, 396 (C.A.A.F.
1995). “The military judge may be an active participant in the proceedings, but ‘must
take care not to become an advocate for either party.’” United States v. Merritt,


                                             5                             ACM 37945 (recon)
71 M.J. 699, 706 (A.F. Ct. Crim. App. 2012) (quoting United States v. Foster,
64 M.J. 331, 332–33 (C.A.A.F. 2007)), affirmed in part and overruled in part on other
grounds by United States v. Merritt, 72 M.J. 483 (C.A.A.F. 2013).

       “There is a strong presumption that a military judge is impartial in the conduct of
judicial proceedings.” Id. (citing United States v. Quintanilla, 56 M.J. 37, 44 (C.A.A.F.
2001)). We test an appeal of a military judge’s impartiality by looking at “whether,
‘taken as a whole in the context of [the] trial,’ a court-martial’s ‘legality, fairness, and
impartiality’ were put into doubt by the military judge’s questions.” Ramos,
42 M.J. at 396 (quoting United States v. Reynolds, 24 M.J. 261, 265 (C.M.A. 1987));
see also Acosta, 49 M.J. at 18. We apply this test from the viewpoint of the reasonable
person observing the proceedings. Id.

       When viewing this military judge’s questions from the viewpoint of a reasonable
person observing the proceedings, there is no doubt that the military judge maintained his
impartial role. For example, during the defense’s examination of Mr. MC about whether
he had previously seen the appellant at his hotel, Mr. MC did not answer with a direct yes
or no. An objective observer would not know whether Mr. MC was unsure if he saw the
appellant at the hotel or if he was avoiding the question. The military judge’s question
merely clarified that Mr. MC could not recognize the appellant and did not see him at the
hotel. There is nothing indicating that the judge knew what the answer to his question
would be. The response could have just as easily benefitted the defense.

       The same is true with the judge’s questions about whether the hotel records could
be changed after a reservation is closed out, and why they appeared to show the appellant
was charged for six or seven days lodging. Depending upon the answer, there would
have been evidence that the records could have been changed after the fact or the
appellant had stayed there for at least some period. There is no indication the military
judge knew what the responses to his questions would be.

       The defense objected to the military judge’s questions at trial and, after indicating
he did not believe the judge was being impartial, trial defense counsel stated,

       It is our position that as the finder of fact that the members certainly had
       their ample opportunity, they could have asked and who knows if they
       would’ve or if they would not have asked, about that. And our position is
       you, as the judge, are not the trier of fact and are not responsible to clarify
       those issues. We believe that those questions potentially could close the
       door of an alternate explanation . . . .

        From this exchange, it is obvious the defense would have preferred for certain
facts to remain undeveloped in order to argue an “alternate explanation” to the members.
We believe, however, the military judge responded appropriately in stating, “If I see


                                             6                              ACM 37945 (recon)
issues that are murky, I want some clarity so the members have the facts so that they can
then make an appropriate determination.”

        The defense objection is essentially that, had the military judge not asked his
clarifying questions, ambiguities and factual gaps would have existed, leading to possible
doubt in the minds of the members. It was, however, proper for the military judge to
address these matters, as long as he did not abandon his role of impartiality. Although
eliminating factual ambiguities may “close a door of an alternate explanation,” the
military judge’s role is not to protect these ambiguities to benefit either side. In this case,
the judge’s questions elicited answers useful to the members, and potentially beneficial to
either side. The judge did not step outside his role of impartiality. We find no merit to
the appellant’s first assigned error.

                                  Instructing the Members

       The appellant claims the military judge should have instructed the members that
the legitimate receipts from the All American Inn, which were submitted with the false
receipts from the Candlewood Suites as part of the appellant’s reimbursement claim,
were not part of the false claim. The appellant argues the judge should have stated with
particularity the portions of the claim that the members “needed to find false and
fraudulent.” Accordingly, the defense argues the members were confused.

       Whether members were properly instructed is a question of law, which we review
de novo. United States v. McDonald, 57 M.J. 18, 20 (C.A.A.F. 2002); United States v.
Smith, 50 M.J. 451 (C.A.A.F. 1999). The military judge has a duty to instruct the
“members correctly and fully on all issues raised by the evidence.”
United States v. Thomas, 11 M.J. 315, 317 (C.M.A. 1981). Because there were no
objections to the instructions, we review for plain error. See United States v. Payne,
73 M.J. 19 (C.A.A.F. 2014). “Under a plain error analysis, this Court will grant relief in
a case of nonconstitutional error only if an appellant can demonstrate that (1) there was
error; (2) the error was plain and obvious; and (3) the error materially prejudiced a
substantial right of the accused.” United States v. Clifton, 71 M.J. 489, 491 (C.A.A.F.
2013) (citing United States v. Powell, 49 M.J. 460, 464–65 (C.A.A.F. 1998)).

       Prosecution Exhibit 2 was the appellant’s claim for lodging and other expenses
from 9 January 2008 to the end of the fiscal year, 30 September 2008. Two hotel receipts
were attached to the claim: one for a stay at the All American Inn, beginning on
9 January 2008 and ending on 26 May 2008, and the other a false receipt created by
Amn HA for the appellant, allegedly from the Candlewood Suites in Bordentown, NJ,
covering the period from 26 May 2008 through 30 September 2008. The appellant’s stay
at the All American Inn occurred just before the fraudulent period beginning on 26 May
2008 and was not part of the charged misconduct. The appellant essentially argues the
members might have believed the receipts from both facilities were fraudulent rather than


                                              7                               ACM 37945 (recon)
those from just the latter facility. The error, he asserts, is the judge’s failure to give a
limiting instruction to the members on the use of the receipt from the All American Inn.

       A reading of the record indicates the prosecution never argued or suggested that
the appellant’s stay at the All American Inn was misconduct or part of the charged
conduct. When Prosecution Exhibit 2 was admitted into evidence, trial counsel stated on
the record that they would not argue the receipt from the All American Inn was evidence
of misconduct and conceded it was not part of the larceny. It was merely admitted to
show the entire story of the appellant’s lodging arrangements while he was on active
duty. The defense accordingly withdrew its objection to that receipt being submitted in
the claim along with the fraudulent receipt.

        Questions asked by the members during their deliberations confirm they
understood that the receipt from the All American Inn did not represent misconduct. The
questions were: “If lodging on base is correct, and if lodging off base is found to be
false, does that constitute the entire claim as false? . . . Is a claim the travel voucher,
accrual or individual claims, such as lodging?” Although this raised another issue
discussed below, the questions revealed the members knew the receipt for base lodging
was not misconduct. There was no argument or suggestion by the prosecution that the
appellant’s misconduct included his stay at the All American Inn nor was there any
indication the members thought this to be so. Indeed, the receipt merely demonstrated
the point at which the appellant transitioned from submitting a legitimate claim to
submitting fraudulent claims, which coincided with when he moved to off-base quarters.
This was made clear to the members. The appellant has not demonstrated, nor have we
found, any prejudice resulting from the inclusion of the receipt or from a lack of
instruction regarding its use. We are convinced the members were not confused by the
judge’s instructions, and the appellant was not prejudiced, even assuming error.

                                  The Additional Charge

       Before the members began deliberations, the military judge instructed them on the
elements of making a false claim. As part of those instructions, he told the members that
they must find that, on divers occasions between on or about 9 January 2008 and on or
about 12 March 2009, the accused made a certain claim against the United States, in the
amount of more than $500 for lodging. As discussed earlier, he also instructed that they
must find “the entire claim was false.” In response to the member’s question discussed
above concerning the definition of “entire claim,” the military judge re-instructed them
on the elements of the offense of making a false claim and added additional instructions:
“So I guess what I would point you to, words are important; phrases are important. It’s
the government’s charging instrument. That is what the accused must defend against.”

      The military judge also instructed the members that they could make exceptions
and substitutions on the findings worksheet and that he tends to not give the members “a


                                             8                             ACM 37945 (recon)
lot of latitude” in that regard. But, he did point out that they could find the amount was
either above or below $500 or that the offense occurred on divers occasions or on one
occasion. He also instructed that he would provide additional findings worksheets if they
wanted to make additional adjustments. Finally, he told them to use their common sense
as well as knowledge of human nature and the ways of the world in deciding whether it
was the “entire claim,” based on the definitions he gave them. The defense did not object
to the additional instructions given to the members.

       The appellant now argues that, by telling the members that the charge as written
by the prosecution was what the appellant “must defend against,” the members were
dissuaded from making exceptions and substitutions, resulting in the outcome where they
found the appellant guilty of the entire claim, including those charges from the
All American Inn. This argument is a parallel to the assignment of error discussed above.

       Applying the plain error standard as we did above, we find no error, and for much
the same reason. The appellant is unable to point to any substantial right that may have
been materially prejudiced. Further, based on the entire record, we are convinced the
members were not confused. The defense invites speculation by arguing that “it is
reasonable that the members concluded the entire claim may not have necessarily been
false and fraudulent but since Appellant failed to properly defend against the
specification as charged and since the members are unable to make any exceptions and
substitutions to the specification, Appellant is guilty.”

        We find the appellant’s claim that the members were unable to make any
exceptions and substitutions to the specification to be an overstatement. Although the
military judge said he tended to not give a lot of latitude, the members were clearly free
to make exceptions and substitutions, and the judge placed no specific limits on their
ability to do so. Moreover, this claim conflicts with the defense’s prior argument that the
members could have believed his submission of a claim for staying at the
All American Inn was part of the charged misconduct. Finally, as stated previously, there
is no reason to assume, and we do not believe, that the members were confused or
thought the appellant’s stay at the All American Inn was part of his criminal conduct or
that they found him guilty of that. Accordingly, we find no error made by the military
judge.

                           Confinement with Foreign Nationals

        The appellant claims he is entitled to “judicial intervention” to redress 75 days of
post-trial confinement with foreign nationals. After his trial, the appellant was confined
at the Monmouth County Correctional Institute in New Jersey from 11 March 2011 to
26 May 2011. During almost all of that time, he was assigned to work in the “Clothing
Room,” where he collected clothes from and issued prison uniforms to new inmates. He
also was responsible for feeding them. Some of these inmates included foreign nationals


                                             9                             ACM 37945 (recon)
brought in by Immigration Customs Enforcement (ICE). The appellant did this work in
the presence of a corrections officer. He claims he interacted with foreign nationals
every day for 75 days. At times, he also was imprisoned with foreign nationals, including
his first night where, while still wearing his military uniform, he was placed in a common
cell with prisoners brought in by ICE. He was threatened and challenged to fight by
some of them who also insulted him on the basis of his status as a United States
servicemember.

       Article 12, UCMJ, states: “No member of the armed forces may be placed in
confinement in immediate association with enemy prisoners or other foreign nationals not
members of the armed forces.” We review de novo whether an appellant’s post-trial
confinement violates Article 12, UCMJ. United States v. Wise, 64 M.J. 468, 473–74
(C.A.A.F. 2007). “A prisoner must seek administrative relief prior to invoking judicial
intervention to redress concerns regarding post-trial confinement conditions.” Id. at 469.
This requirement “‘promot[es] resolution of grievances at the lowest possible level [and
ensures] that an adequate record has been developed [to aid appellate review].’”
Id. at 471 (alterations in original) (quoting United States v. Miller, 46 M.J. 248, 250
(C.A.A.F. 1997)). “Since a prime purpose of ensuring administrative exhaustion is the
prompt amelioration of a prisoner’s conditions of confinement, courts have required that
these complaints be made while an appellant is incarcerated.” Id. The “[a]ppellant must
show that ‘absent some unusual or egregious circumstance . . . he has exhausted the
prisoner-grievance system [in his detention facility] and that he has petitioned for relief
under Article 138[, UCMJ, 10 U.S.C. § 938].’” Id. (second alteration in original)
(quoting United States v. White, 54 M.J. 469, 472 (C.A.A.F. 2001)).

       The appellant claims he was unaware of Article 12, UCMJ, or of its prohibition of
confinement with foreign nationals. Likewise, he claims he was unaware of the
requirement to seek administrative relief at the detention facility or that he should have
promptly petitioned for relief under Article 138, UCMJ, to address any violation.

       Normally a confinee’s failure to complain about Article 12, UCMJ, violations
administratively, either through the confinement facility’s grievance system or through
the military chain via Article 138, UCMJ, will preclude judicial intervention. Only some
unusual or egregious circumstance will justify an appellant’s failure to exhaust his
administrative remedies.

       Our superior court found unusual circumstances in Wise. After Wise’s conviction,
but before his confinement in a local facility near his camp in Iraq, which also housed
either foreign nationals or enemy soldiers, he immediately complained of this potential
Article 12, UCMJ, violation to his commander, other unit representatives, and his defense
counsel, all to no avail. Wise, 64 M.J. at 472. Once he was placed in the facility, he was
denied contact with his defense counsel. His attempts to complain to his guards were
likewise met with silence. Finally, there was no evidence of a formal complaint or


                                            10                             ACM 37945 (recon)
grievance system he could avail himself of while he was held in Iraq awaiting
reassignment to the permanent confinement facility in Kuwait. Id.

        In United States v. Alexander-Lee, ACM S31784 (A.F. Ct. Crim. App.
16 March 2012) (unpub. op.), we found unusual circumstances existed when the
appellant complained to his trial defense counsel that he was being bunked with foreign
nationals in the local jail. By the time trial defense counsel had spoken with prison
officials and gotten back to the appellant, that circumstance had ended. Id. Trial defense
counsel had also told the appellant he would raise the matter to the convening authority
and did so in the clemency submissions. The appellant did not independently raise the
Article 12, UCMJ, issue administratively. Id.

       We likewise found unusual conditions in United States v. Brandon, ACM 37399
(A.F. Ct. Crim. App. 22 March 2010) (unpub. op.), where the appellant, who was in a
local civilian lock-up, had informed her trial defense counsel and her visiting commander
of the Article 12, UCMJ, violation. While her commander told her she could not be
moved back onto base because of manning issues, trial defense counsel included the issue
in the member’s clemency submission. The appellant did not independently raise the
Article 12, UCMJ, issue administratively. Id.

       In all of these cases where unusual or egregious circumstances were found, the
appellant had raised the Article 12, UCMJ, issue with someone connected with the
military who would be in the position to relay the problem to an authority capable of
remedying the situation. In those cases, this communication excused the appellant’s
failure to formally raise the issue administratively either through the facility grievance
system or under Article 138, UCMJ.

        The appellant in this case acknowledges he did not exhaust his administrative
remedies, even though he had the opportunity to do so. There was a facility grievance
system of which he was aware, and the appellant was visited by military members,
presumably from his unit. Yet, the appellant waited until appellate review before he
raised the issue. He did not notify anyone in his chain of command or at the confinement
facility of the Article 12, UCMJ, violation at the time it was allegedly occurring, nor did
he file a grievance or make an Article 138, UCMJ, complaint. As a result, the Air Force
was unable to investigate the claims, make a record of what it found, or immediately
correct the situation if warranted. With these facts, we find no “unusual or egregious
circumstances” to excuse the appellant’s failure to pursue available administrative
remedies. See Wise, 64 M.J. at 471. Accordingly, based on the appellant’s failure to
exhaust his administrative remedies and the absence of unusual or egregious
circumstances, relief for his claim of a violation of Article 12, UCMJ, is not warranted.




                                            11                             ACM 37945 (recon)
                               Cruel and Unusual Punishment

       The appellant contends that he suffered cruel and unusual punishment, based on
the fact that he is a reserve Airman who, when not on active duty orders, is a “narcotics
field officer” (police officer) in a city near the confinement facility he was held in for
75 days after his court-martial. He argues it was foreseeable that he would be recognized
by local people he had arrested and consequently he lived under a near-constant state of
threat. He states that there were rumors as to his identity, and he had to deny them when
questioned by other inmates. He claims some of the inmates actually recognized him.

       We review de novo whether the facts alleged constitute cruel and unusual
punishment under the Eighth Amendment.2 United States v. Lovett, 63 M.J. 211
(C.A.A.F. 2006). This is also true for violations alleged under Article 55, UCMJ,
10 U.S.C. § 855. The same requirement to exhaust administrative remedies through the
confinement facility grievance system or through Article 138, UCMJ, exists for this type
of claim, as it does for claims for violations of Article 12, UCMJ, discussed in the
previous section. See Wise, 64 M.J. at 469. Thus, unless there are unusual or egregious
circumstances explaining an appellant’s failure to use these administrative avenues of
redress, this Court will deny a belated request for relief at this level. See id.; Miller,
46 M.J. 248.

       To prevail on this type of claim, the appellant must show: (1) prison officials
committed a “sufficiently serious act or omission that denied him necessities,” (2) the act
or omission resulted from a culpable state of mind reflecting “deliberate indifference to
[his] health and safety,” and (3) he has exhausted administrative remedies. Lovett,
63 M.J. at 215.

       As discussed previously, the appellant did not exhaust his administrative remedies.
In regard to this claim, he states that he could not use the confinement facility’s grievance
system because grievances were collected by the prisoners themselves, which eliminated
any anonymity he would have and increased his risk. However, he stated in his post-trial
declaration that he was asked directly by corrections officers if he was a police officer
and he denied being one. This was an opportunity to bypass the anonymity problem with
the grievance system. Additionally, he was visited by military members while in
confinement, and he could have alerted them to his status but did not do so. Under these
conditions, we find that the appellant did not satisfy the requirement to exhaust his
administrative remedies.

       Furthermore, there is no evidence that either the Air Force or the confinement
authority possessed the culpable state of mind reflecting deliberate indifference to his
health and safety required to show an Eighth Amendment violation. The appellant denied

2
    U.S. CONST. amend. VIII.


                                             12                             ACM 37945 (recon)
to the confinement authorities that he was a police officer when asked, so there would be
no basis for them to take any action. To find that the Air Force possessed a culpable
mind, we would have to determine that they deliberately placed him in a confinement
facility close to Philadelphia knowing he would be recognized by inmates he previously
arrested. There is no proof of this and such a conclusion would require pure speculation
on our part. Accordingly, we reject the appellant’s Eighth Amendment violation claim.

                             Appellate Review Time Standards

        We review de novo “[w]hether an appellant has been denied [his] due process
right to a speedy post-trial review . . . and whether [any] constitutional error is harmless
beyond a reasonable doubt.” United States v. Allison, 63 M.J. 365, 370 (C.A.A.F. 2006).
A presumption of unreasonable delay arises when appellate review is not completed and
a decision is not rendered within 18 months of the case being docketed before this Court.
See United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006). When a case is not
completed within 18 months, such a delay is presumptively unreasonable and triggers an
analysis of the four factors elucidated in Barker v. Wingo, 407 U.S. 514 (1972), and
Moreno. See United States v. Arriaga, 70 M.J. 51, 55 (C.A.A.F. 2011). Those factors
are “(1) the length of the delay; (2) the reasons for the delay; (3) whether the appellant
made a demand for a speedy trial; and (4) prejudice to the appellant.” United States v.
Mizgala, 61 M.J. 122, 129 (C.A.A.F. 2005); see also Barker, 407 U.S. at 530.

       This case was originally docketed for appellate review on 16 June 2011, and this
Court rendered a decision upon reconsideration on 16 July 2013. Assuming without
deciding that this entire period is considered together, this exceeded the 18-month
standard established in Moreno and is therefore facially unreasonable. We have
examined the Barker factors to determine whether the appellant suffered from a due
process violation as a result of the delay. We find that no such due process violation
occurred in the delay leading up to this Court’s 16 July 2013 decision. In particular, the
appellant has made no showing of prejudice under the fourth Barker factor. When there
is no showing of prejudice under the fourth factor, “we will find a due process violation
only when, in balancing the other three factors, the delay is so egregious that tolerating it
would 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). Having
considered the totality of the circumstances and the entire record, when we balance the
other three factors, we find the post-trial delay in this case to not be so egregious as to
adversely affect the public’s perception of the fairness and integrity of the military justice
system. We are convinced the error is harmless beyond a reasonable doubt.

      As for the time that has elapsed since this Court’s 16 July 2013 decision, we find
no due process violation. The Moreno standards continue to apply as a case remains in
the appellate process. United States v. Mackie, 72 M.J. 135, 135–36 (C.A.A.F. 2013).
The Moreno standard is not violated when each period of time used for the resolution of


                                             13                              ACM 37945 (recon)
legal issues between this Court and our superior court is within the 18-month standard.
Id. at 136; see also United States v. Roach, 69 M.J. 17, 22 (C.A.A.F. 2010). The time
between our superior court’s action to return the record of trial to our Court for our action
and this decision has not exceeded 18 months; therefore, the Moreno presumption of
unreasonable delay is not triggered. See Mackie, 72 M.J. at 136. Furthermore, the reason
for the delay between 16 July 2013 and our opinion today was to allow this Court and our
superior court to fully consider a constitutional issue of first impression: whether the
Secretary of Defense has the authority under the Appointments Clause3 to appoint
civilian employees to the service courts of criminal appeals.

      Lastly, even assuming the total appellate processing of this case raises a
presumption of unreasonable delay, we again conclude the delay was harmless under the
Barker and Toohey analyses.

        While we find the post-trial delay was harmless, that does not end our analysis.
Article 66(c), UCMJ, empowers appellate 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). United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002); see also
United States v. Harvey, 64 M.J. 13, 24 (C.A.A.F. 2006). In United States v. Brown,
62 M.J. 602, 606–07 (N.M. Ct. Crim. App. 2005), our Navy and Marine Court colleagues
identified a “non-exhaustive” list of factors to consider in evaluating whether
Article 66(c), UCMJ, relief should be granted for post-trial delay. Among the
non-prejudicial factors are the length and reasons for the delay; the length and complexity
of the record; the offenses involved; and the evidence of bad faith or gross negligence in
the post-trial process. Id. at 607. We find there was no bad faith or gross negligence in
the post-trial processing in any stage of the appellate review of this matter. We conclude
that sentence relief under Article 66, UCMJ, is not warranted.

                                          Conclusion

       The approved findings and sentence are correct in law and fact and no error
materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a)
and 66(c), UCMJ. Accordingly, the approved findings and sentence are AFFIRMED.



                     FOR THE COURT


                     STEVEN LUCAS
                     Clerk of the Court


3
    U.S. CONST. art II § 2, cl 2.


                                              14                            ACM 37945 (recon)
