           UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                            Senior Airman JONATHAN W. JAMES
                                    United States Air Force

                                              ACM S32213

                                              06 April 2015

         Sentence adjudged 7 January 2014 by SPCM convened at Spangdahlem
         Air Base, Germany. Military Judge: Dawn R. Eflein (sitting alone).

         Approved Sentence: Bad-conduct discharge, confinement for 6 months,
         and reduction to E-1.

         Appellate Counsel for the Appellant: Captain Michael A. Schrama.

         Appellate Counsel for the United States: Lieutenant Colonel John E. Owen;
         Major Daniel J. Breen; Captain Richard J. Schrider; and Gerald R. Bruce,
         Esquire.

                                                  Before

                            MITCHELL, WEBER, and CONTOVEROS
                                  Appellate Military Judges

                                     OPINION OF THE COURT

          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
                              under AFCCA Rule of Practice and Procedure 18.4.



WEBER, Judge:

       A military judge sitting as a special court-martial convicted the appellant, pursuant
to his pleas, of one specification of each of the following: wrongfully using marijuana,
wrongfully using 3, 4-Methylenedioxymethamphetamine (ecstasy), assault consummated
by a battery, drunk and disorderly conduct, obstruction of justice, and communicating a
threat. The charges and specifications represent violation of Articles 112a, 128, and 134,
UCMJ, 10 U.S.C. §§ 912a, 928, 934. The military judge sentenced the appellant to a
bad-conduct discharge, confinement for 7 months, and reduction to E-1. Pursuant to a
pretrial agreement (PTA), the convening authority reduced confinement to 6 months but
otherwise approved the sentence as adjudged.

       The appellant personally asserts two assignments of error pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). First, he alleges the
specifications for obstruction of justice and communicating a threat represent
multiplicious charging or an unreasonable multiplication of charges. Second, he requests
relief under United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002), because the
Government violated the 30-day standard to forward the record of trial to this court. We
find no error and affirm.

                                       Background

        The appellant used marijuana and ecstasy during a group outing to Amsterdam in
early 2013. The Air Force Office of Special Investigations later learned of this
misconduct, and the appellant was placed on restricted duty pending a probable
court-martial. While this matter was pending and after a night of drinking excessive
amounts of alcohol, the appellant and another Airman implicated in the investigation
confronted a third Airman, accusing him of informing investigators about their earlier
drug use. As this situation escalated, another Airman intervened. The appellant accused
this other Airman of also being an informant, grabbed him by the throat, and pushed him
into a wall.

        Charges for these two incidents were preferred against the appellant. As the
appellant’s court-martial approached, and after another night of excessive alcohol
consumption, the appellant approached another Airman, a friend who had also been
implicated in the investigation about drug use in Amsterdam. The appellant suspected
that the friend had secured a discharge in lieu of a court-martial by agreeing to testify
against the appellant. The appellant threatened to kill the friend or have civilian contacts
“come after” the friend’s family members. The appellant pressured the friend to disclose
his family members’ contact information, and when the friend refused, the appellant
stated that he could find that information on the Internet and could have a “hit” put out on
the friend’s family members. The friend later informed his first sergeant, and an
additional charge with specifications of obstructing justice and communicating a threat
were preferred and referred.

                  Multiplicity/Unreasonable Multiplication of Charges

       The appellant alleges that the specifications of obstruction of justice and
communicating a threat are multiplicious, or alternatively they represent an unreasonable
multiplication of charges. At trial, the appellant did not move to dismiss either of the
specifications on grounds of multiplicity or unreasonable multiplication of charges.
Instead, as part of his PTA, he contracted to waive all waivable motions. The military


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judge explored this provision with the appellant, learned that this provision originated
with the defense in order to secure a more favorable PTA, and determined that the
appellant had knowingly and voluntarily agreed to this provision. Trial defense counsel
stated the defense had considered raising an unlawful command influence motion but did
not mention that he had considered raising a multiplicity or unreasonable multiplication
of charges motion. Nonetheless, in sentencing, the military judge asked the parties if
these two specifications should be considered as one matter for sentencing. Trial defense
counsel urged her to do so; trial counsel opposed this. After the military judge
announced the sentence, she stated as follows:

             I also meant to state that the court did consider the
             specifications in the Additional Charge to be one for the
             principles—for the purposes of sentencing, not because they
             were an unreasonable multiplication of charges and not
             because they were multiplicious, but because they arose out
             of the exact same conversation.        And technically the
             government could have flipped the language basically and
             charged the other offense the other way, so I did consider
             them as one offense for sentencing purposes.

        In United States v. Gladue, 67 M.J. 311, 314 (C.A.A.F. 2009), our superior court
held that a “waive all waivable motions” provision waived, rather than forfeited, a claim
of multiplicity on appeal and therefore the multiplicity claim was extinguished and could
not be raised on appeal. The court held this issue was waived even though defense
counsel did not specifically mention multiplicity as a motion that was initially considered
before the waiver provision was agreed upon. Id. The court held multiplicity was
waived because the pretrial agreement required the appellant to waive “all” waivable
motions, the military judge conducted a thorough inquiry to ensure the appellant
understood the effect of this provision, and the appellant explicitly indicated his
understanding that he was waiving the right to raise any waivable motion. Id. The court
also stated the same position would result for claims of unreasonable multiplication of
charges raised on appeal. Id.

       Consistent with Gladue, we find the appellant waived his right to raise the issues
of multiplicity and unreasonable multiplication of charges on appeal. The military judge
sufficiently inquired into the “waive all waivable motions” provision, and the appellant
affirmatively voiced his understanding that this provision waived his right to raise any
waivable motion on appeal. In addition, in sentencing, the military judge raised the
related issue of whether the two specifications should be merged for sentencing. Trial
defense counsel successfully argued for the military judge to do so but did not request




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any additional relief regarding the findings. The appellant has waived this issue, and
therefore he is not entitled to relief on this issue.1

                                         Post-Trial Processing Delay

        In United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006), our superior court
established guidelines that trigger a presumption of unreasonable delay, including where
the record of trial is not docketed with the service court within 30 days of the convening
authority’s action. In addition to any due process concerns caused by unreasonable
post-trial delay, Article 66(c), UCMJ, 10 U.S.C. § 866(c), empowers the service appellate
courts to grant sentence relief for excessive post-trial delay without a showing of actual
prejudice. Tardif, 57 M.J. at 224.

       The appellant’s court-martial concluded on 7 January 2014. The convening
authority took action on 6 February 2014, well within the 120-day standard established
by Moreno for this stage. See, 63 M.J. at 142. The appellant’s case was docketed with
this court on 10 March 2014, 32 days after action. The appellant does not allege that he
suffered any prejudice as a result of this delay in docketing the record of trial with this
court, and we find none. Rather, the appellant asserts Tardif relief is warranted due to
unreasonable post-trial delay. As “modest relief” to address this delay, he asks us to set
aside his bad-conduct discharge.

       We are cognizant of our broad authority to grant relief for post-trial delay even in
the absence of a showing of prejudice, but we decline to exercise that authority in this
case. Utilizing the factors outlined by our Navy and Marine Corps colleagues in
United States v. Brown, 62 M.J. 602, 606–07 (N.M. Ct. Crim. App. 2005), we find
granting sentencing relief is not appropriate. In particular, especially given the overall
timeliness of post-trial processing at the installation level, we see no evidence that the
short delay in this one stage of the case demonstrates evidence of bad faith or gross
negligence.2



1
  Even if we were to find that the appellant merely forfeited this issue rather than waived it, the appellant would not
prevail on the merits of this issue. Our superior court has held that separate specifications for obstructing justice and
communicating a threat are not multiplicious. United States v. Oatney, 45 M.J. 185 (C.A.A.F. 1996). In addition,
applying the factors set forth in United States v. Quiroz, 55 M.J. 334 (C.A.A.F. 2001), we would not find that the
two specifications represent an unreasonable multiplication of charges, particularly when they did not increase the
maximum possible sentence in this special court-martial and the military judge treated them as one for sentencing
purposes.
2
  The appellant’s brief states that “114 days passed from the convening authority’s action until the record was
docketed with this Court, more than triple the Moreno standard.” As noted elsewhere in the assignment of errors,
only 32 days actually elapsed between action and docketing. The statement concerning the purported 114-day
period appears to be a cut-and-paste error utilizing a brief from United States v. Sutton, ACM S32143 (A.F. Ct.
Crim. App. 21 August 2014) (unpub. op.), another case written by the same appellate defense counsel. We advise
all counsel to lend more attention to their briefs.


                                                           4                                           ACM S32213
                                       Conclusion

       The approved findings and the 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, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved findings and
the sentence are AFFIRMED.



             FOR THE COURT


             STEVEN LUCAS
             Clerk of the Court




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