          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                          UNITED STATES

                                                    v.

                           Second Lieutenant WILLIAM R. JONES
                                   United States Air Force

                                          ACM 38028 (rem)

                                           4 February 2016

         Sentence adjudged 29 July 2011 by GCM convened at Laughlin Air Force
         Base, Texas. Military Judge: Matthew D. Van Dalen.

         Approved Sentence: Dismissal, confinement for 6 months, and forfeiture of
         all pay and allowances.

         Appellate Counsel for Appellant: Major Jeffery A. Davis; Major Travis K.
         Ausland; and Major Zaven T. Saroyan.

         Appellate Counsel for the United States: Colonel Don M. Christensen;
         Colonel Linell A. Letendre; Lieutenant Colonel Roberto Ramirez; Major
         Rhea A. Lagano; Major Meredith L. Steer; Major Erika L. Sleger; and
         Gerald R. Bruce, Esquire.

                                                 Before

                              ALLRED, MITCHELL, and BROWN
                                  Appellate Military Judges

                                    OPINION OF THE COURT
                                        UPON REMAND

         This opinion is issued as an unpublished opinion and, as such, does not serve as precedent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



MITCHELL, Senior Judge:

       A general court-martial composed of officer members convicted Appellant,
contrary to his pleas, of drunk driving, assault consummated by a battery, and conduct
unbecoming an officer, in violation of Articles 111, 128, and 133, UCMJ, 10 U.S.C.
§§ 911, 928, 933. The court sentenced him to a dismissal, confinement for six months,
and forfeiture of all pay and allowances. The convening authority approved the sentence
as adjudged.

                                    Procedural History

        On 25 January 2013, The Judge Advocate General of the Air Force appointed a
retired Air Force officer and former appellate military judge, who was serving as a
civilian litigation attorney in the Department of the Air Force, 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). 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 appointed the same civilian employee of the Department of the
Air Force to serve as an 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 Appellant’s case was initially before us, he argued that we should find error
in the military judge’s denial of a challenge for cause, despite Appellant’s decision to not
exercise a peremptory challenge. He also supplemented his initial assignments of error
with four additional errors submitted pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982). The supplemental errors were that his counsel were ineffective, the
military judge erred in denying Appellant the right to find new counsel, the military judge
erred in denying a request for an expert consultant in forensic pathology, and the
evidence on the charge of drunk driving in violation of Article 111, UCMJ, was legally
and factually insufficient.

       On 15 April 2013, this court issued a decision in which we affirmed the findings
and sentence after examining the five raised issues. United States v. Jones, ACM 38028
(A.F. Ct. Crim. App. 15 April 2013) (unpub. op.). The appointed civilian employee was
a member of the panel that decided the case. Following the appointment by the Secretary
of Defense, this court reconsidered its decision sua sponte. Within 60 days, this court
provided notice it would reconsider the decision and thus retained jurisdiction over the
case. Cf. United States v. Labella, 75 M.J. 52 (C.A.A.F. 2015) (failure to file notice of
reconsideration within 60 days ends service court’s jurisdiction over a case). On 23 July
2013, we issued a new opinion and again affirmed the findings and sentence. United
States v. Jones, ACM 38028 (recon) (A.F. Ct. Crim. App. 23 July 2013) (unpub. op.).

       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 the earlier appointment was “invalid and of no effect.” On 11 March 2015, our
superior court concluded the improper appointment of the civilian employee by the
Secretary of Defense was not waived by an earlier failure to object. United States v.


                                             2                               ACM 38028 (rem)
Jones, 74 M.J. 95 (C.A.A.F. 2015). Our superior court reversed our decision and
remanded the case to us for a new review under Article 66, UCMJ, before a properly
constituted panel. Id. In addition to reviewing the prior pleadings, we issued an order
authorizing Appellant to file a supplemental briefing.

        In light of this ruling by our superior court, we have reviewed Appellant’s case.
Our review includes Appellant’s previous filings and the previous opinions issued by this
court, as well as a supplemental assignment of error in which Appellant asserts he is
entitled to relief due to excessive post-trial processing delays and there was error in the
sentencing instructions provided by the military judge. Finding prejudicial error in the
military judge’s failure to provide one of the mandatory sentencing instructions, we
adjust the sentence to remove any prejudicial effect. We affirm the findings.

                                   Challenge for Cause

        Concerning the challenge for cause, we find the issue waived. Appellant
challenged a panel member for implied bias, citing primarily the member’s interaction on
disciplinary matters with other squadron commanders to include the commander who
preferred charges against Appellant. The military judge denied the challenge and
provided a detailed explanation for his decision which expressly referenced the liberal
grant mandate. Shortly thereafter, trial defense counsel elected not to exercise a
peremptory challenge. Failure to exercise a peremptory challenge against any member
by the party who makes an unsuccessful challenge for cause waives further review. Rule
for Courts-Martial (R.C.M.) 912(f)(4). This issue is waived and Appellant is not entitled
to relief.

       Appellant argues that, nonetheless, we should review the military judge’s decision
based on the judge’s sua sponte ability to excuse a member in the interest of justice even
if a challenge is not made. R.C.M. 912(f)(4). While a military judge has the
discretionary authority to sua sponte excuse a member, there is no duty to exercise this
power. United States v. McFadden, 74 M.J. 87, 90 (C.A.A.F. 2015). We are not
convinced to exercise our authority under Article 66, UCMJ, to review this discretionary
authority of the military judge. We apply waiver. Cf. United States v. Akbar, 74 M.J.
364, 395–97 (C.A.A.F. 2015) (explaining why the military judge did not abuse his
discretionary authority to sua sponte remove members).

                                   Release of Counsel

       After the Government rested its case in chief and an overnight recess, trial defense
counsel motioned for a continuance so Appellant could pursue hiring a forensic
pathologist he contacted the day before. Previously, trial defense counsel filed a motion
to compel the appointment of an expert consultant in forensic pathology and after that
motion was denied, filed a motion for reconsideration which was also denied. After the


                                             3                             ACM 38028 (rem)
military judge denied the continuance, Appellant requested to release his counsel. Earlier
in the proceeding, after the military judge explained the rights to counsel and then asked
Appellant who he wanted to have represent him, Appellant indicated he desired to be
represented by his detailed counsel and did not express any dissatisfaction with their
appointment. Appellant now indicated that prior to trial he made a specific request for a
particular defense counsel, but this request was denied. The military judge questioned
Appellant further about his request to release counsel. In response to Appellant’s
declared belief that the release of counsel would result in a “brand new trial,” the military
judge explained that although new counsel could file a motion for a mistrial, that motion
would not have to be granted. The military judge also explained that Appellant could
proceed pro se. After receiving this information, Appellant stated that “based upon the
information I just received, I would like to continue with my counsel.” The military
judge stated that he viewed that statement as Appellant withdrawing his request to release
his counsel and, therefore, did not rule on the motion.

        The military judge’s explanation to Appellant was correct. The military judge had
the option to deny a continuance to obtain new counsel. We would have reviewed the
denial of the continuance for an abuse of discretion. United States v. Wiest, 59 M.J. 276,
279 (C.A.A.F. 2004). A mistrial is a drastic remedy and is to be used sparingly; we
review a decision to deny a motion for a mistrial for clear evidence of an abuse of
discretion. United States v. Thompkins, 58 M.J. 43, 47 (C.A.A.F. 2003). There is no
guarantee that the military judge would have been compelled to grant a motion for a
continuance for new counsel to be detailed or hired, nor would it have been guaranteed
that a mistrial would have been required if new counsel became involved. We conclude
that the military judge instructed Appellant accurately. Appellant knowingly and
intelligently, while perhaps also reluctantly, withdrew his request to release his counsel.
Appellant waived his request for new counsel. We find no error.

                                  Sentencing Instructions

       Rule for Courts-Martial 1005(e)(4) requires that the members be instructed that
“they are solely responsible for selecting an appropriate sentence and may not rely on the
possibility of any mitigating action by the convening or higher authority.” Although the
military judge provided the other R.C.M. 1005(e) mandatory instructions, this instruction
was not given by the military judge in either his written or oral instructions. Trial
defense counsel did not object.

       The adequacy of a military judge’s instructions is reviewed de novo. United
States v. Dearing, 63 M.J. 478, 482 (C.A.A.F. 2006). “The military judge bears the
primary responsibility for ensuring that mandatory instructions . . . are given and given
accurately.” United States v. Miller, 58 M.J. 266, 270 (C.A.A.F. 2003); see also R.C.M.
920(a). We find plain error in the military judge’s failure to provide this mandatory
instruction. Having found error, we test for prejudice. Id. at 271.


                                             4                               ACM 38028 (rem)
       The military judge accurately instructed the members on the maximum
punishment. He further instructed that it was the duty of each member to vote for a
proper sentence and their “determination of the kind and amount of punishment, if any,
[was] a grave responsibility requiring the exercise of wise discretion.” The military judge
also instructed the members that they “alone [were] responsible for determining an
appropriate sentence in this case.”

       During trial, there was one reference to the convening authority’s ability to impact
or affect the sentence imposed by the members. The military judge orally instructed the
members that, “when the accused has dependents, the convening authority may direct that
any or all of the forfeiture of pay which the accused otherwise by law would be required
to forfeit, be paid to the accused’s dependents for a period not to exceed six months.”
Upon realizing that Appellant did not have any dependents, however, the military judge
did not include this portion of his oral instructions in the written version he provided to
the members.

       Trial counsel argued for a dismissal, 12 months of confinement, and forfeiture of
all pay and allowances. The members adjudged a sentence to a dismissal, confinement
for 6 months, and forfeiture of all pay and allowances.

       Our superior court has repeatedly held that if we “can determine to [our]
satisfaction that, absent any error, the sentence adjudged would have been of at least a
certain severity, then a sentence of that severity or less will be free of the prejudicial
effects of error.” United States v. Sales, 22 M.J. 305, 308 (C.A.A.F. 1986); see also
United States v. Suzuki, 20 M.J. 248, 249 (C.M.A. 1985). Here, the only reference to
later mitigation by the convening authority involved potential forfeitures, and that
fleeting reference was not further explained, clarified, or repeated in the written
instructions or otherwise. This raises the potential that the military judge’s failure to
caution the members not to rely on potential mitigation by the convening authority could
have impacted their decision to impose forfeiture of all pay and allowances in this case.
But see United States v. Irizarry, ACM 37748 (A.F. Ct. Crim. App. 15 March 2012)
(unpub. op.) (finding the omission of this same instruction did not prejudice the
appellant). This prejudicial error is cured by not affirming the forfeiture of all pay and
allowances portion of this sentence. The remaining sentence of a dismissal and 6 months
confinement is free of any prejudicial effects of the error.

                            Appellate Review Time Standards

       Appellant argues, citing United States v. Moreno, 63 M.J. 129, 135
(C.A.A.F. 2006), that the unreasonable post-trial delay from the date the case was first
docketed with this court in March 2012 until this opinion warrants relief. Appellant
further cites to United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002), noting this court’s




                                             5                             ACM 38028 (rem)
broad power and responsibility to affirm only those findings and sentence that should be
approved.

        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.
Moreno, 63 M.J. at 142. 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
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). If a delay is
presumptively unreasonable it 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 with this court on 25 October 2011. The time
from that initial docketing until our initial decision on 15 April 2013 did not exceed 18
months and is therefore not facially unreasonable. We then sua sponte reconsidered our
decision and issued an opinion on 23 July 2013, more than 20 months after the initial
docketing. The Moreno standards were developed to deter excessive systemic delays in
post-trial and appellate processing. Moreno, 63 M.J. at 142. We decline to adopt a time
standard that would discourage reconsideration, either sua sponte or at the request of
either party. When the initial decision is issued within the 18-month Moreno standard
but the subsequent decision on reconsideration is more than 18 months after docketing,
we will not presume an unreasonable delay; instead, we will focus on the standards
established in Barker. The first factor is a threshold one; the full due process analysis is
not triggered unless the delay is facially unreasonable. Moreno, 63 M.J. at 136; see also
United States v. Toohey, 60 M.J. 100, 102 (C.A.A.F. 2004). We conclude that three
months for reconsideration is not unreasonable, and therefore we do not examine the
remaining Barker factors.

        We also examine the time subsequent to our July 2013 decision. The Moreno
standards continue to apply as a case continues through the appellate process. Mackie, 72
M.J. at 135–36. 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 id. at 136. Appellant
argues that, because neither of the previous decisions were issued by a properly
constituted panel, we should consider the time from initial docketing until this opinion as


                                             6                              ACM 38028 (rem)
uninterrupted for Moreno analysis. We reject Appellant’s argument that, because the
Secretary of Defense’s appointment of the civilian employee was invalid and of no effect,
the Moreno clock was not tolled by our earlier decisions. 1

       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). Tardif, 57 M.J. at 224; see also United States v.
Harvey, 64 M.J. 13, 24 (C.A.A.F. 2006). In United States v. Bischoff, 74 M.J. 664, 672
(A.F. Ct. Crim. App. 2015), we identified a 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. No single factor is dispositive and we may consider other
factors as appropriate. Id. After considering the relevant factors in this case, we
determine that no relief is warranted. Even analyzing the entire period from the time the
case was first docketed until today, we find there was no bad faith or gross negligence in
the post-trial processing. The reason for the delay after our initial decision was to allow
this court and our superior court to fully consider a constitutional issue of first impression
about whether the Secretary of Defense has the authority under the Appointments Clause 2
to appoint civilian employees to the service courts of criminal appeals. See Janssen,
73 M.J. at 221. While the answer may seem clear now with the advantage of subsequent
decisions, we find no evidence of harm to the integrity of the military justice system by
allowing the full appellate review of this novel issue. Appellant has not articulated any
harm. At most, Appellant asks us to infer increased anxiety; we decline to do so.
Furthermore, the impact of any delay was mitigated when we specifically allowed
Appellant to file a supplemental assignment of error and we have granted relief on an
issue that was not raised in his initial assignment of error. We have the authority to tailor
an appropriate remedy without giving Appellant a windfall. See Tardif, 57 M.J. at 225.
We have expressly considered whether we should further reduce some or all of


1
  Alternatively, if the standards set forth in United States v. Moreno, 63 M.J. 129, 135 (C.A.A.F. 2006), are violated,
the 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, 507 U.S. at 530; United States v. Morita, 73 M.J. 548, 567 (A.F. Ct. Crim. App. 2013). Appellant has not
made any showing of prejudice, beyond referencing the general “anxiety and concern” of appellants awaiting
resolution of their appeal. 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 that even if there is error, it is harmless beyond a reasonable doubt.
2
  U.S. CONST. art. II, § 2, cl. 2.


                                                           7                                       ACM 38028 (rem)
Appellant’s sentence. Based on our review of the entire record, we conclude that
additional sentence relief under Article 66, UCMJ, is not warranted.

                                Other Assignments of Error

      We have considered the remaining assignments of error and find them to be
without merit. See United States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987).

                                         Conclusion

       We affirm a sentence to a dismissal and 6 months of confinement. The approved
findings and the sentence, as adjusted, are correct in law and fact, and no error prejudicial
to the substantial rights of Appellant occurred. Articles 59(a) and Article 66(c), UCMJ.
Accordingly, the approved findings and the sentence, as adjusted, are AFFIRMED.



ALLRED, Chief Judge (concurring in part and dissenting in part):

       In my view any error in the trial judge’s failure to instruct the court members
regarding possible mitigating action by the convening or higher authority was harmless.
See United States v. Irizarry, ACM 37748 (A.F. Ct. Crim. App. 15 March 2012) (unpub.
op.). Accordingly, I dissent from that portion of the majority opinion which grants relief
by refusing to affirm the adjudged forfeiture of all pay and allowances.

       In all other respects, I concur with Senior Judge Mitchell’s opinion.




               FOR THE COURT


               LAQUITTA J. SMITH
               Appellate Paralegal Specialist




                                                8                              ACM 38028 (rem)
