              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                                Before
           J.R. MCFARLANE, K.M. MCDONALD, M.K. JAMISON
                       Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                         BRIAN T. HART
              MASTER-AT-ARMS SEAMAN (E-3), U.S. NAVY

                           NMCCA 201300295
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 15 November 2012.
Military Judge: LtCol Charles C. Hale, USMC.
Convening Authority: Commandant, Naval District Washington,
Washington Navy Yard, Washington, DC.
Staff Judge Advocate's Recommendation: LCDR J.D. Pilling,
JAGC, USN.
For Appellant: LT Jessica L. Fickey, JAGC, USN.
For Appellee: Maj David N. Roberts, USMC; LCDR Keith B.
Lofland, JAGC, USN; LT Ian D. MacLean, JAGC, USN.

                            19 August 2014

     ---------------------------------------------------
                     OPINION OF THE COURT
     ---------------------------------------------------

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

JAMISON, Judge:

     A general court-martial composed of officer and enlisted
members convicted the appellant, contrary to his pleas, of
unpremeditated murder, involuntary manslaughter, aggravated
assault, negligent homicide, and child endangerment in violation
of Articles 118(3), 119, 128, and 134, Uniform Code of Military
Justice, 10 U.S.C. §§ 918(3), 919, 928, and 934. The members
sentenced the appellant to reduction to pay grade E-1,
forfeiture of all pay and allowances, confinement for a period
of twelve years, and a dishonorable discharge. The convening
authority (CA) approved the adjudged sentence.1

     The appellant raises four assignments of error (AOE). In
his first AOE, the appellant argues that the military judge
abused his discretion in not dismissing the convictions for
involuntary manslaughter, negligent homicide, and child
endangerment based on a claim of an unreasonable multiplication
of charges. In his second AOE, the appellant argues that he is
entitled to sentence relief for excessive post-trial processing
delay. Next, he argues in his third AOE that the CA did not
include in his action administrative credit for fourteen days of
pretrial confinement that the appellant spent in a civilian
confinement facility. Finally, in his fourth AOE, the appellant
argues that the evidence that led to the conviction for
unpremeditated murder is factually and legally insufficient.2

     After consideration of the pleadings of the parties and the
record of trial, we conclude that two of the appellant’s AOEs
have merit and warrant relief. Specifically, we find merit in
AOE I, but for different reasons than those advocated by the
appellant. We also find merit in AOE III and will order
appropriate action in our decretal paragraph. We find the
remaining AOEs without merit.

     In all other respects, we conclude that the              findings and
sentence are correct in law and fact and that no              error
materially prejudicial to the substantial rights              of the
appellant was committed. Arts. 59(a) and 66(c),               UCMJ.

                                 I. Background

     On 26 March 2010, Master-at-Arms Seaman (MASN) JH gave
birth to BLH. The appellant, BLH’s biological father, was
dating MASN JH at the time of BLH’s birth.3 The victim, BLH, was
born approximately sixteen weeks premature and spent more than
three months in the neonatal intensive care unit (NICU) at Johns
Hopkins Hospital. She showed satisfactory progress while at the
NICU, progressing from her birth weight of approximately one
1
  The court-martial order fails to note the adjudged forfeiture of all pay and
allowances. We will order corrective action in our decretal paragraph.
2
  The appellant’s fourth AOE is raised pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982).
3
    The couple married on 6 November 2010.   Defense Exhibit R.


                                        2
pound five ounces to a healthy seven pounds. Based on her
satisfactory progress, BLH was released into the care of her
parents on 11 July 2010. Prior to BLH’s release from Johns
Hopkins, the appellant and MASN JH spent approximately three and
one half weeks receiving training on how to care for a baby born
prematurely, to include the dangers of severe brain injury from
shaking the baby.

     The appellant and MASN JH coordinated with their respective
work sections to ensure that they could provide continuous care
of BLH. During July and August of 2010, MASN JH worked shifts
from 0600 until 1400 and the appellant worked shifts from 2200
until 0600. Prosecution Exhibit 13. Initially, BLH continued
to progress in accordance with developmental milestones for
infants her age. She had follow-up medical appointments at
Johns Hopkins on 13 and 23 July 2010, both of which were
positive.

     On or about 3 August 2010, BLH developed an elevated
temperature. After MASN JH consulted with a nurse over the
phone, she gave BLH infant ibuprofen and BLH’s temperature went
back to normal. On 5 August 2010, BLH vomited and MASN JH
noticed that BLH’s leg was twitching. Concerned about the
vomiting, MASN JH made a medical appointment for BLH for Monday,
9 August 2010.

     At approximately 0515 on 7 August 2010, MASN JH left for
work. Prior to leaving, she checked on BLH who appeared to be
fine. When MASN JH returned from work shortly after 1400, BLH
looked pale and was having difficulty breathing. The appellant
and MASN JH took BLH to the St. Mary’s County Hospital in
Maryland, where BLH was intubated and subsequently transferred
via life-flight helicopter to Georgetown University Hospital.
Medical doctors at Georgetown conducted a series of tests and
discovered that BLH had recent and healed rib fractures and
recent and old subdural hematomas. Based on the medical
assessment and feedback from the appellant and MASN JH, the
doctors suspected non-accidental trauma and reported this to
local law enforcement.

     Five days later, detectives from the sheriff’s office in
St. Mary’s County interviewed the appellant and MASN JH. Having
established that the appellant had been BLH’s sole caregiver
while MASN JH was at work on 5 and 6 August 2010, the detectives
asked him what could have caused BLH’s injuries. While he
denied knowing any cause of the injuries, the appellant
suggested that BLH’s injuries may have occurred when she was in

                                3
the care of the NICU at Johns Hopkins, or that the family dog
may have jumped on her.

     BLH was taken off life support on 12 August 2010 and died
within minutes. The autopsy revealed multiple rib fractures,
subdural bleeding, as well as a right temporal and parietal
subdural hemorrhage consistent with blunt force trauma. The
medical examiner, Dr. SP, concluded that the cause of death was
multiple blunt force injuries and the manner of death was
homicide. PE 15. This conclusion was based, in part, on Dr. SP
finding seven specific injuries consistent with blunt force
trauma. Id. Dr. CR, the Assistant Medical Examiner for the
State of Rhode Island and a neuropathologist, conducted a post-
mortem exam of BLH’s skull and brain, and concluded that BLH had
suffered multiple hemorrhages in the subdural and subarachnoid
areas of the brain. Id.; Record at 1803-05. Additionally, Dr.
AJ, a neuroradiologist, testified that based on the scans of her
skull, BLH had a fracture on the left side of her skull. Record
at 1653.

     On 13 August 2010, local detectives arrived at the
appellant’s house and requested that he accompany them to the
police station. He complied. At the police station, the
appellant was given the appropriate rights warnings and he
waived those rights. During the interrogation, the appellant
eventually admitted to picking up BLH forcefully and shaking
her, causing her neck to snap back and forth on 7 August 2010
and on another occasion, approximately a week earlier. PE 2.

     The appellant was arrested by the local authorities and
remained in civilian confinement from 13 August until 26 August
2010. Ultimately, the Navy assumed jurisdiction over the
appellant’s case. Following an Article 32, UCMJ, pretrial
investigation, the CA referred the following charges:
unpremeditated murder; involuntary manslaughter; aggravated
assault; negligent homicide; child endangerment; and, reckless
endangerment.4 Additional facts necessary for the resolution of
a particular AOE are included below.

                   II. Factual and Legal Sufficiency

     In his fourth AOE, the appellant argues that the evidence
was factually and legally insufficient to sustain his conviction


4
  The Government moved to withdraw and dismissed the reckless endangerment
specification at trial. Record at 676; Charge Sheet.


                                      4
for unpremeditated murder of BLH.5 His sufficiency claim
primarily addresses causation. He argues that since the
evidence at trial established two conflicting medical
conclusions as to the cause of BLH’s death, this rendered the
finding of unpremeditated murder factually and legally
insufficient. We disagree.

     We review questions of legal and factual sufficiency de
novo. United States v. Winckelmann, 70 M.J. 403, 406 (C.A.A.F.
2011). The test for legal sufficiency is whether a rational
trier of fact could have found that the evidence met the
essential elements of the charged offense, viewing the evidence
in a light most favorable to the Government. United States v.
Turner, 25 M.J. 324, 324 (C.M.A. 1987). The test for factual
sufficiency is whether we are convinced of the appellant’s guilt
beyond a reasonable doubt, allowing for the fact that we did not
personally observe the witnesses. Id. at 325.

     The term “reasonable doubt” does not mean that the evidence
must be free of any conflict. United States v. Rankin, 63 M.J.
552, 557 (N.M.Ct.Crim.App. 2006), aff’d, 64 M.J. 348 (C.A.A.F.
2007). When weighing the credibility of a witness, this court,
like a fact-finder at trial, examines whether discrepancies in
witness testimony resulted from an innocent mistake such as a
lapse of memory or a deliberate lie. United States. v. Goode,
54 M.J. 836, 844 (N.M.Crim.Ct.App 2001). Additionally, the
members may “believe one part of a witness’ testimony and
disbelieve another.” United States v. Harris, 8 M.J. 52, 59
(C.M.A. 1979).

     We find that the medical evidence presented to the members
was clearly of sufficient weight and magnitude for the members
to conclude beyond a reasonable doubt that the cause of death
was non-accidental blunt force trauma consistent with being
shaken and slammed. The appellant’s medical expert testified
that BLH died of natural causes due to her having suffered
ischemic strokes; however, he could not pinpoint the underlying
cause of these strokes. The Government’s medical evidence
established that BLH did not present risk factors for stroke and
that forcefully shaking a baby multiple times -- consistent with


5
  The appellant’s AOE is styled as a claim of factual and legal insufficiency
with regard to the appellant’s “convictions for the death of BLH.”
Appellant’s Brief of 2 Dec 2013 at 17. Because we dismiss the appellant’s
convictions for involuntary manslaughter and negligent homicide later in this
opinion, we consider only the unpremeditated murder conviction as it relates
to BLH’s death.
                                      5
the appellant’s admissions -- can lead to bleeding of the brain
and eventual stroke.

     Next, the appellant argues that because the appellant did
not actually admit to causing blunt force trauma to BLH the
evidence was factually and legally insufficient. We find this
argument unpersuasive. The circumstantial evidence that the
Government offered was strong with regard to establishing the
source and cause of BLH’s multiple injuries. First, in addition
to his admission that he forcefully shook BLH on two occasions,
the appellant admitted to police that BLH’s head hit the
bassinette when he picked her up in a forceful manner.
Second, MASN JH testified that only she and the appellant cared
for, and had custody of, BLH. Third, MASN JH denied ever
shaking or hurting BLH and testified that the appellant was in
sole custody of BLH during the relevant time. Fourth, the
medical evidence, to include BLH’s autopsy, revealed multiple
injuries all consistent with non-accidental trauma.

     Having conducted our own assessment, we find that the
evidence was both legally and factually sufficient to conclude
beyond a reasonable doubt that non-accidental blunt force trauma
was the cause of BLH’s death and that the appellant’s actions
caused her injuries and death.

          III. UMC, Multiplicity, and Double Jeopardy

     Based on the medical evidence and the appellant’s admission
of having forcefully shaken BLH on two separate occasions, the
prosecution’s charging theory focused on contingencies-of-proof:
first, the appellant’s conduct that took place on 7 August 2010,
which led to BLH’s death (unpremeditated murder, involuntary
manslaughter, and negligent homicide); and second, the
appellant’s prior assaultive conduct (two specifications of
aggravated assault and child endangerment) between 11 July (the
date of BLH’s release from the Johns Hopkins NICU) and 7 August
2010.

     At trial, the appellant moved the court to dismiss the
negligent homicide and child endangerment specifications.
Appellate Exhibit V. The motion sought dismissal of these
offenses on the basis that they represented an unreasonable
multiplication of charges (UMC). Id. Similar to his argument
at trial, the appellant now argues that the military judge
abused his discretion in not dismissing the involuntary
manslaughter and negligent homicide offenses on the basis that
they were unreasonably multiplied with the unpremeditated murder

                                6
offense. Additionally, the appellant argues that the military
judge abused his discretion in not dismissing the child
endangerment offense as unreasonably multiplied with the
aggravated assault offense.

     In this case, the military judge elected to merge for
sentencing purposes the unpremeditated murder, involuntary
manslaughter, and negligent homicide. Record at 3146; AE CXIX.6
Similarly, the military judge merged for purpose of sentencing
the aggravated assault and child endangerment offenses. Record
at 3221; AE CXIX.

     The appellant properly concedes that his punitive exposure
did not increase because the military judge merged the negligent
homicide and involuntary manslaughter with the unpremeditated
murder and further merged the child endangerment with the
aggravated assault. Appellant’s Brief of 2 Dec 2013 at 11.
Thus, our focus is whether the military judge abused his
discretion in not dismissing the merged offenses. See United
States v. Campbell, 71 M.J. 19, 25 (C.A.A.F. 2012) (holding that
within the context of UMC, a military judge has wide discretion
to dismiss offenses, to merge offenses, or, to merge offenses
only for purposes of sentencing). In conducting our analysis,
we first consider the three offenses associated with BLH’s death
prior to moving to the two offenses associated with the
appellant’s earlier assaultive conduct.

A. Homicide of BLH

     Prior to considering the appellant’s UMC claim, we consider
whether involuntary manslaughter and negligent homicide are
multiplicious as lesser included offenses (LIOs) of
unpremeditated murder. If so, dismissal of both charges is the
proper remedy because multiple convictions for the “same
offence” would represent a constitutional violation rooted in
the Double Jeopardy Clause of the Fifth Amendment to the U.S.
Constitution. See North Carolina v. Pearce, 395 U.S. 711, 717
(1969) (stating that the “guarantee [within the Double Jeopardy
Clause] has been said to consist of three separate
constitutional protections. It protects against a second
prosecution for the same offense after acquittal. It protects
against a second prosecution for the same offense after
conviction. And it protects against multiple punishments for
the same offense.”) (footnotes omitted)), overruled on other
grounds by Alabama v. Smith, 490 U.S. 794, 803 (1989).

6
    Appellate Exhibit CXIX is mislabeled in the record as AE XXVIII.
                                        7
     The application of multiplicity to charged offenses has
bedeviled practitioners and jurists for years. See Whalen v.
United States, 445 U.S. 684, 700 (1980) (Rehnquist, J.,
dissenting) (stating that the two words “same offense” in the
Double Jeopardy Clause is “deceptively simple in appearance but
virtually kaleidoscopic in application”); see also Albernaz v.
United States, 450 U.S. 333, 343 (1981) (stating that
application of the Blockburger test for multiplicity is a
“veritable Sargasso Sea which could not fail to challenge the
most intrepid judicial navigator”).

     Our superior court has over the years adopted different
tests for multiplicity within the context of evaluating LIOs.
See generally United States v. Jones, 68 M.J. 465, 470 (C.A.A.F.
2010) (noting that following United States v. Teters, 37 M.J.
370 (C.M.A. 1993), in which the court adopted the LIO test
articulated in Schmuck v. United States, 489 U.S. 705 (1989),
the court had “drifted significantly” from Teters).7

     The holding in Jones changed the LIO landscape and served
to cast into doubt the President’s interpretation in the Manual
for Courts-Martial, United States (2012 ed.) as to what
constitutes an LIO. See Jones, 68 M.J. at 472 (rejecting the
President’s ability to define LIOs and stating that “Congress
has not delegated to the President a general authority to
determine whether an offense is ‘necessarily included’ in the
charged offense under Article 79, UCMJ.” (footnote and citation
omitted)).

     What is and what is not an LIO can have significant
implications for purposes of appellate review. For example, a
military judge has a duty to instruct on LIOs “unless
affirmatively waived by the defense.” United States v.
Strachan, 35 M.J. 362, 364 (C.M.A. 1992) (citation omitted).
Within the context of an alleged homicide, in United States v.
Davis, 53 M.J. 202, 205 (C.A.A.F. 2000), the Court of Appeals
for the Armed Forces (CAAF) set aside Hospitalman Davis’s
conviction for involuntary manslaughter because the court
concluded that the military judge committed plain error by
failing to instruct on the LIO of “negligent homicide.”

7
  As an example of that “drift,” the court in Jones cited United States v.
Hudson, 59 M.J. 357 (C.A.A.F. 2004) in which the court rejected as
unsupportable an LIO test that “‘lin[es] up elements realistically and
determin[es] whether each element of the supposed “lesser” offense is
rationally derivative of one or more elements of the other offense -- and
vice versa.’” Jones, 68 M.J. at 470 (quoting United States v. Foster, 40
M.J. 140, 146 (C.M.A. 1994)).
                                      8
     Finding ourselves at the analytical crossroads of the
CAAF’s UMC case law and its LIO case law in Jones, we confront
the double jeopardy implications of these charged offenses
(murder, involuntary manslaughter, and negligent homicide),
which were specifically charged for contingencies-of-proof. We
begin by considering first the appellant’s involuntary
manslaughter conviction.

    1. Involuntary Manslaughter

     To ascertain whether a particular offense is an LIO, a
legal issue we consider de novo, United States v. Miller, 67
M.J. 385, 387 (C.A.A.F. 2009), we compare the elements of the
appellant’s conviction for unpremeditated murder with his
conviction for involuntary manslaughter. If the elements of
involuntary manslaughter are either the same as, or a subset of,
the elements of unpremeditated murder, involuntary manslaughter
is an LIO. Jones, 68 M.J. at 469-70; see United States v.
Alston, 69 M.J. 214, 216 (C.A.A.F. 2010) (stating that to
ascertain whether elements are “necessarily included” for
purposes of LIO analysis, courts use “‘normal principles of
statutory construction’” (quoting Carter v. United States, 530
U.S. 255, 263 (2000)).

     Unpremeditated murder under Article 118(3) has five
elements: (1) a death; (2) the accused caused the death by an
intentional act; (3) the intentional act was inherently
dangerous to another and showed a wanton disregard for human
life; (4) the accused knew that death or great bodily harm was a
probable consequence of the act; and, (5) the killing was
unlawful. MCM, Part IV, ¶ 43b(3). Involuntary manslaughter has
four elements: (1) a death; (2) that the accused caused the
death by an act or omission; (3) the killing was unlawful; and
(4) that this act or omission constituted culpable negligence.
Art. 119, UCMJ; MCM, Part IV, ¶ 44b(2).

     Unpremeditated murder under Article 118(3) requires that an
accused show wanton disregard for human life and that he knew
that death or great bodily harm was a probable consequence,
while involuntary manslaughter requires that an accused act with
culpable negligence. Culpable negligence is a negligent act or
omission accompanied by a culpable disregard for the foreseeable
consequences to others of that act or omission. Art. 119, UCMJ;
MCM, Part IV, ¶ 44c(2)(a)(i).

     Under the circumstances of this case, culpable negligence
by shaking BLH and causing blunt force trauma to her head is a

                                  9
subset of the same act done with wanton disregard for human life
knowing that death or great bodily harm was a probable
consequence. See United States v. Dalton, 71 M.J. 632, 634
(N.M.Ct.Crim.App. 2012) (holding that involuntary manslaughter
is an LIO of unpremeditated murder under an Article 118(2)
theory), aff’d, 72 M.J. 446-47 (C.A.A.F. 2013) (summary
disposition).8

     Because the involuntary manslaughter of BLH is a subset of
unpremeditated murder of BLH, we dismiss the involuntary
manslaughter as an LIO of the unpremeditated murder.9

      2. Negligent Homicide

     The Government also charged the appellant with negligent
homicide in the killing of BLH. The negligent homicide was
based on the exact same acts as the unpremeditated murder and
involuntary manslaughter. Prior to Jones and United States v.
McMurrin, 70 M.J. 15 (C.A.A.F. 2011), our task would have been
simple, because negligent homicide had always been thought of as
an LIO of both murder and involuntary manslaughter.

      Negligent homicide was treated as an LIO to murder and
manslaughter prior to Congress enacting the UCMJ. United States
v. Kick, 7 M.J. 82 (C.M.A. 1979); MANUAL FOR COURTS-MARTIAL, UNITED
STATES ARMY 1949, ¶ 180a; see MANUAL FOR COURTS-MARTIAL, UNITED STATES,
1951, ¶¶ 198a and 198b. This position was reaffirmed by the
CAAF’s predecessor court. See United States v. McGhee, 32 M.J.
322, 325 (C.M.A. 1991) (stating that “we are quite convinced
that negligent homicide is a lesser included offense of
involuntary manslaughter at least under Article 119(b)(1)[,
UCMJ]”).

     Jones signaled a departure from considering offenses under
Article 134, UCMJ, as LIOs of enumerated offenses. And in
United States v. Girouard, 70 M.J. 5, 9 (C.A.A.F. 2011), the
CAAF explicitly held that negligent homicide is “not an LIO of
premeditated murder.” That same term, the CAAF held in McMurrin

8
  Although the CAAF affirmed Dalton, the court noted that we erred when we
stated that our comparison of the elements of murder and involuntary
manslaughter be “viewed in the light of human experience.” Dalton, 72 M.J.
at 446-47. The CAAF struck that part of our opinion, but otherwise affirmed.
Id.
9
  We note that at time of trial, the military judge did not have the benefit
of the CAAF’s partial affirmance of our opinion in Dalton and was concerned
about dismissing a charge if that charge was not an LIO. Record at 2890.


                                     10
that negligent homicide is not an LIO of involuntary
manslaughter. 70 M.J. at 18.

     Although both Girouard and McMurrin considered negligent
homicide within the context of the Fifth Amendment’s Due Process
Clause for purposes of ensuring that an accused has proper
notice of every element that he is being charged with, neither
case considered the application of multiplicity to its
respective holding. In fact, we confront an issue that Chief
Judge Baker presaged in Jones. See Jones, 68 M.J. at 474 n.2
(Baker, J., dissenting) (stating that by its holding, the
“majority has . . . eliminated the issue of multiplicity . . .
.”).

     The CAAF recently ruled on a case remarkably similar to
this case; however, the court’s summary disposition offers
little in the way of guidance. In United States v. Wickware,
No. 38074, 2013 CCA LEXIS 856, unpublished op. (A.F.Ct.Crim.App.
10 Oct 2013), the Air Force Court of Criminal Appeals (AFCCA)
confronted a multiplicity and UMC claim based on Airman First
Class Wickware having been convicted of unpremeditated murder,
involuntary manslaughter, and negligent homicide for shaking or
using some other form of excessive force resulting in his infant
son’s death. The AFCCA affirmed and rejected Airman Wickware’s
multiplicy/UMC claim, reasoning that because the military judge
merged the offenses for purposes of sentencing, Airman Wickware
did not suffer any prejudice. He appealed and the CAAF granted
the appeal to the following issue:

    WHETHER APPELLANT'S CONVICTIONS FOR INVOLUNTARY
    MANSLAUGHTER AND NEGLIGENT HOMICIDE, WHICH WERE
    CHARGED IN THE ALTERNATIVE TO THE OFFENSE OF
    UNPREMEDITATED MURDER, SHOULD BE DISMISSED AS
    APPELLANT WAS CONVICTED OF UNPREMEDITATED MURDER.

     On 16 May 2014, the CAAF set aside the findings of guilty
and dismissed the involuntary manslaughter and negligent
homicide offenses. United States v. Wickware, __ M.J. __, 2014
CAAF LEXIS 527 (C.A.A.F. May 16, 2014) (summary disposition).
Because the CAAF elected not to cite to any case law, we are
unclear whether the CAAF dismissed the manslaughter and
negligent homicide on multiplicity or UMC grounds. Informed by
CAAF’s binding decision in Wickware, we consider the appellant’s
negligent homicide conviction.

     We begin with the general premise that we are skeptical
Congress intended an appellant to be convicted of unpremeditated

                               11
murder and negligent homicide for the exact same act. It is
beyond peradventure that the President had no such intent in
mind because negligent homicide continues to be listed as an LIO
to unpremeditated murder and involuntary manslaughter. See
MCM, Part IV, ¶¶ 43d(2) and 44d(2). This does not end our
analysis, however, because the CAAF has explicitly held that
negligent homicide is not an LIO of involuntary manslaughter or
murder. McMurrin, 70 M.J. at 18; Girouard, 70 M.J. at 9.
Because neither McMurrin nor Girouard strictly analyzed the
implications of the Double Jeopardy Clause, we next consider the
implications of having two convictions for the same act within
the context of the Double Jeopardy Clause.10

     Because Jones eschewed each CAAF holding that suggested
anything other than a strict “Teters application of Schmuck with
respect to LIOs,” Jones, 68 M.J. at 470, we look to Supreme
Court jurisprudence interpreting the Double Jeopardy Clause. We
find within United States v. Dixon, 509 U.S. 688 (1993), a basis
within the Double Jeopardy Clause to dismiss the appellant’s
conviction for negligent homicide because, under the
circumstances of this case, we find it to be “a species of
lesser-included offense.” Id. at 698 (quoting Illinois v.
Vitale, 447 U.S. 410, 420 (1980)).11

     In Dixon, the Respondent, Mr. Alvin Dixon, was arrested for
murder and released on bail. As a condition of bail, his bail
release form specified that he could not commit any offense and

10
  Although the CAAF did not address multiplicity in either Girouard or
McMurrin, the CAAF has cited Schmuck within the context of the CAAF’s LIO
test for multiplicity. See, e.g., United States v. Traxler, 39 M.J. 476, 479
(C.M.A. 1994).
11
  To be clear, Dixon is not a multiplicity case. Rather, it relies on a
separate theory under the Double Jeopardy Clause -- the prohibition against a
successive prosecution for the same “offence.” Because we believe that the
Double Jeopardy Clause and Article 44(a), UCMJ, would protect the appellant
against a successive prosecution for negligent homicide (in the event he had
hypothetically been acquitted or convicted of either murder or manslaughter
and not charged with negligent homicide), we find Dixon instructive with
regard to multiple convictions in the same court-martial. We interpret the
unpremeditated murder and negligent homicide to be the same “offence” in that
the factual characteristics of each offense are exactly the same. We do not
discount the requirement to plead and prove the service discrediting element
of the appellant’s conduct in order to convict him of negligent homicide;
however, we consider that element somewhat unique within the context of our
analysis in that the facts necessary to prove service discrediting conduct do
not directly relate to, or change, the factual characteristics of the
underlying homicide. Rather, those facts relate to the effect that the
conduct had on the armed forces. See MCM, Part IV, ¶ 60c(3).


                                     12
if he did he could be prosecuted for contempt of court. While
awaiting his trial for murder, he was “arrested and indicted for
possession of cocaine with intent to distribute.” Id. at 691.
Dixon was charged with and convicted of contempt of court for
possession of cocaine. Following his conviction for contempt of
court, he moved to dismiss the underlying criminal indictment
for cocaine possession. He argued that the indictment should be
dismissed on double jeopardy grounds and the district court
agreed.

     The United States appealed and the District of Columbia
Court of Appeals concluded inter alia that the Double Jeopardy
Clause barred the subsequent prosecution of Dixon’s case. The
United States sought a writ of certiorari on the following
issue: “whether the Double Jeopardy Clause bars prosecution of
a defendant on substantive criminal charges based on the same
conduct for which he previously has been held in criminal
contempt of court.”12 Id. at 694.

     Writing for the Court, Justice Scalia concluded that
Dixon’s underlying cocaine possession charge was a “species of
lesser-included offense” because his drug offense did not
contain any element that was not contained in the contempt of
court conviction. Id. at 698-700. Justice Scalia’s analysis
relied heavily on Harris v. Oklahoma, 433 U.S. 682 (1977) (per
curiam).

     In Harris the Petitioner was convicted of felony murder in
which the underlying felony was robbery by firearms. Following
his first conviction, Harris was prosecuted in a separate
proceeding for robbery with firearms. He unsuccessfully moved
to dismiss his second prosecution based on a claim that it
violated the Double Jeopardy Clause. The Oklahoma Court of
Criminal Appeals affirmed the second conviction. Harris v.
State, 555 P.2d 76 (Okla. Crim.App. 1976). The Oklahoma Court
of Criminal Appeals used an elemental comparison approach under
Blockburger13 and concluded that the offenses of felony murder

12
  We also note that in Dixon, the Supreme Court overruled Grady v. Corbin,
495 U.S. 508 (1990), which had adopted a “same-conduct” rule as opposed to
the “same offence” rule under Blockburger for purposes of analyzing the
implications of the Double Jeopardy Clause. Dixon, 509 U.S. at 704. The
District of Columbia Court of Appeals relied on Grady to conclude that
Dixon’s subsequent prosecution “w[as] barred by the Double Jeopardy Clause.”
Id. at 694.
13
  In United States v. Blockburger, 284 U.S. 299, 304 (1932), the Supreme
Court adopted the strict elements test for determining whether two offenses
are different for purposes of the Double Jeopardy Clause. Two offenses are
                                     13
and robbery with firearms are not identical because “proof of an
additional distinct fact is required that is not necessary to
prove in the trial of the other.” Id. at 80 (citations
omitted). In a per curiam opinion, the Supreme Court reversed,
holding that Harris’s conviction for felony murder, in which the
underlying felony was robbery, barred his subsequent prosecution
for robbery.14 The Court in Harris stated: “[w]hen, as here,
conviction of a greater crime, murder, cannot be had without
conviction of the lesser crime, robbery with firearms, the
Double Jeopardy Clause bars prosecution for the lesser crime
after conviction of the greater one.” Harris, 433 U.S. at 682
(citations omitted).

     For the reasons outlined in Harris, the Dixon Court
concluded that the Double Jeopardy Clause barred Dixon’s
subsequent prosecution for cocaine possession. Although only
Justice Kennedy joined the entire opinion of the Court, Justice
White wrote a concurrence in which he agreed that application of
the Double Jeopardy Clause to Dixon’s case compelled the
conclusion that his subsequent prosecution for cocaine
possession was “impermissible.” Id. at 731.15 Writing his own
concurrence, Justice Souter agreed that Dixon’s subsequent

different if “each provision requires proof of a fact which the other does
not.” Id. at 304. In Teters, the court explicitly adopted the strict
elements test of Blockburger and overruled the prior “fairly embraced” test
articulated in United States v. Baker, 14 M.J. 361 (C.M.A. 1983). Teters, 37
M.J. at 376.
14
  In Vitale, the Supreme Court also analyzed Harris and recognized that
Oklahoma’s felony-murder statute “did not require proof of a robbery to
establish felony murder.” Vitale, 447 U.S. at 420. Nevertheless, the Vitale
Court explained that the Harris Court had treated the subsequent robbery
prosecution “as a species of a lesser-included offense.” Id. We believe
that Vitale further informs our analysis in this case. Vitale was speeding
in a car when he struck and killed two children. He was issued a traffic
citation charging him with failure to reduce his speed to avoid the accident.
He was convicted and sentenced to pay a fine of $15.00. He was subsequently
charged with involuntary manslaughter. Vitale moved to dismiss on the
grounds that his subsequent prosecution violated the Double Jeopardy Clause.
The trial court agreed and the Supreme Court of Illinois affirmed concluding
that Vitale’s manslaughter prosecution was barred by the Double Jeopardy
Clause. The Supreme Court granted certiorari and remanded the case. The
Court reasoned that if the subsequent prosecution relied on “a failure to
slow” as the act necessary to prove involuntary manslaughter, “Vitale would
have a substantial claim” under the Double Jeopardy Clause. Id. at 421. In
this case, the Government relied on the exact same actus reus for both
unpremeditated murder and negligent homicide.
15
  Justice Stevens joined Justice White’s concurrence, concurring in the
judgment of the Court that Mr. Dixon’s subsequent prosecution for cocaine use
violated the Double Jeopardy Clause. Dixon, 509 U.S. at 721 n. 18.
                                     14
prosecution for cocaine possession would be “barred by the
Double Jeopardy Clause.” Id. at 744. Accordingly, five
Justices concluded that Mr. Dixon’s subsequent prosecution for
cocaine possession would violate the Double Jeopardy Clause.16

     Chief Justice Rehnquist, joined by Justices O’Connor and
Thomas, disagreed that the Double Jeopardy Clause prohibited Mr.
Dixon’s subsequent prosecution for cocaine possession because
under Blockburger, contempt of court has two elements (a court
order and a willful violation of that order) that are not
contained in the underlying offense of cocaine possession.
Additionally, Chief Justice Rehnquist concluded that under
Blockburger no element of cocaine possession “is necessarily
satisfied by proof that a defendant has been found guilty of
contempt of court.” Id. at 716. Citing to Harris, Chief
Justice Rehnquist argued that Harris should be limited “to the
context in which it arose: where crimes in question are
analogous to greater and lesser included offenses.” Id. at 714.

     In this case, the prosecution’s charging theory was clearly
a case in which the murder of BLH was “analogous to [the] . . .
lesser included offense[]” of negligent homicide. Id. But for
the fact that the Government had to prove that killing BLH was
service discrediting conduct, it would have been impossible to
commit murder on a 118(3) theory without also committing
negligent homicide. It is clear, and the Government conceded at
trial, that the murder, involuntary manslaughter, and negligent
homicide were based on the same factual transaction or “offence”
-- killing BLH by “shaking her with his [the appellant’s] hands
and causing blunt force trauma to her head.” Charge Sheet.

     Thus, under the unique circumstances of this case, we hold
that if the Government elects to charge negligent homicide as a
lesser offense as part of a contingencies-of-proof theory-of-
prosecution, negligent homicide would be “a species of lesser-
included offense.” Dixon, 509 U.S. at 698; see Whalen, 445 U.S.
at 694 (holding that Congress did not intend separate
convictions for felony murder in the course of a rape and also
conviction for the underlying rape even though under
16
  Justice Blackmun disagreed with the proposition that the Double Jeopardy
Clause prohibited Dixon’s subsequent prosecution for cocaine use because he
reasoned that contempt of court represents a special type of offense apart
from the underlying substantive offense. Id. at 742. If, however, Dixon’s
case would have involved “successive prosecutions under the substantive
criminal law . . . I would agree that the Double Jeopardy Clause would bar
[Dixon’s] subsequent prosecution.” Id. at 741-42 (Blackmun, J., concurring
in the judgment in part and dissenting in part).


                                     15
Blockburger, felony murder does not always require proof of a
rape). Accordingly, we dismiss the appellant’s conviction for
negligent homicide on this ground as opposed to the appellant’s
argument that the negligent homicide conviction be dismissed on
a UMC theory.17

B. Aggravated Assault and Child Endangerment involving BLH

     Based on the appellant’s admission that he had previously
shaken BLH and the medical evidence showing that BLH had rib
fractures and a subdural hematoma that had occurred prior to 7
August 2019, the prosecution charged the appellant with two
specifications of aggravated assault and one specification of
child endangerment.

     The appellant now argues that the military judge abused his
discretion in not dismissing the child endangerment offense as
unreasonably multiplied with the two specifications of
aggravated assault.18 Appellant’s Brief at 10. We disagree.

     We review UMC claims under an abuse of discretion standard.
Campbell, 71 M.J. at 22. In determining whether a UMC claim
exists, we consider five factors: (1) did the appellant object
at trial; (2) are the charges aimed at distinctly separate
criminal acts; (3) do the charges misrepresent or exaggerate the
acts; (4) do the charges unreasonably increase the appellant’s
punitive exposure; and, (5) is there any evidence of
prosecutorial overreaching or abuse in the drafting of the
charges and specifications? United States v. Quiroz, 57 M.J.
583, 585-86 (N.M.Ct.Crim.App. 2002) (en banc), aff’d, 58 M.J.
183 (C.A.A.F. 2003) (summary disposition).


17
  We are hard-pressed to conclude that the Government’s decision to charge
negligent homicide even approaches prosecutorial overreaching -- a primary
reason for why the UMC theory exists. First, pleading in the alternative was
expressly suggested by the CAAF. See Jones, 68 M.J. at 472 (explicitly
stating that “the government is always free to plead in the alternative”).
Second, under McMurrin, pleading negligent homicide would be a requirement if
the Government wanted to rely on the lesser mental state of negligence.
18
  Based on our review of the record, we find that the military judge
consolidated the two specifications of aggravated assault for sentencing.
Record at 3221. He instructed the members to consider the single
specification of aggravated assault as one offense with the child
endangerment specification. Id. at 3221. While unclear, it appears that the
Government conceded the military judge’s ruling that the two aggravated
assault specifications be consolidated into a “sole specification.” Id. at
3154-55. We will take action to consolidate these two specifications for
aggravated assault in our decretal paragraph.
                                     16
     In this case, the military judge merged the offenses for
sentencing, and the appellant concedes this fact. Appellant’s
Brief at 11. While the military judge made the observation that
the assault and child endangerment offense could be viewed as
separately punishable given the “societal protections”
associated with the offense of child endangerment, he merged
them for purposes of sentencing based on the concession of the
Government. Record at 3157. He instructed the members to
consider the assault and child endangerment as one event for
purposes of imposing sentence. Id. at 3221; AE CXIX.

     Under the circumstances of this case, we find that the
military judge acted within his discretion by instructing the
members that the child endangerment offense was to be treated as
a single offense with the aggravated assault offense. In fact,
we agree with the military judge’s observation that the child
endangerment offense could have been separately punishable. In
any event, we hold that the military judge did not abuse his
discretion by merging the offenses for purposes of sentencing.

                IV. Post-Trial Processing Delay

     In his second assignment of error, the appellant argues
that he was prejudiced by post-trial processing delay in that
the CA did not take his action until 252 days after completion
of trial. While the appellant does not claim that the delay in
post-trial processing rose to the level of a due process
violation, he requests that we order 132 days of post-trial
confinement credit under Article 66(c), UCMJ. Appellant’s Brief
at 13-14. Prior to conducting our analysis under Article 66(c),
UCMJ, we first consider the due process implications associated
with this facially unreasonable period of post-trial processing
delay.

     Whether an appellant has been deprived of his due process
right to a speedy appellate review is a question of law that we
review de novo. In United States v. Moreno, 63 M.J. 129
(C.A.A.F. 2006), the CAAF adopted the four-part test in Barker
v. Wingo, 407 U.S. 514, 530 (1972), for all prospective claims
of post-trial processing delay. In conducting our analysis, we
balance the “(1) 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.” Id. (citations
omitted). No one factor is determinative and we decide whether
each factor favors the Government or the appellant. Id. at 136.



                               17
     Analysis of a claim of post-trial processing delay begins
with a determination whether the delay in question is facially
unreasonable. Id. at 135-36. If the period between completion
of the trial and the CA’s final action is greater than 120 days,
we presume the delay to be facially unreasonable. Id. at 142.
The delay between completion of the appellant’s court-martial
and the CA’s action totaled 252 days, triggering a full
Moreno/Barker analysis. See id.

     The presumption of unreasonableness can be overcome by a
showing of legitimate, case specific circumstances. Id. at 142-
43; see also United States v. Arriaga, 70 M.J. 51, 56-57
(C.A.A.F 2011). Here, unlike in Moreno, the post-trial
processing delay was caused by more than just administrative
matters and manpower constraints. In his memorandum to the
Office of the Judge Advocate General, the CA explained that the
initial delay was due to administrative confusion associated
with securing funding approval for transcription services for
the record of trial. Commandant, NDW ltr 5811 Ser N00J/237 of
25 Jul 13.19 This delay accounted for 43 days. While this delay
was not an example of bureaucratic efficiency, we do not believe
it was facially unreasonable within the meaning of Moreno in
that this initial 43-day delay spanned the 2012 holiday season.
The most significant cause of the delay in timely post-trial
processing, however, was the unacceptably poor quality of
transcription by the civilian transcription company that was
awarded the contract to complete the transcription of the court-
martial record. Id.

     While administrative matters within the control of the
Government are illegitimate justifications for post-trial
processing delay, Arriaga, 70 M.J. at 57, under the unique
circumstances of this case, we find that the unacceptable state
of the transcribed record provided on Day 77 to the Region Legal
Service Office responsible for post-trial processing was
unanticipated. We find it reasonable for the Government, when
it awards a contract, to expect a minimally sufficient
professional product processed in a timely manner. The
Government received neither in this case.



19
  Manual of the Judge Advocate General, Judge Advocate General Instruction
5800.7F, § 0151(a)(4) (26 Jun 2012), requires the CA to personally sign a
letter addressed to the Office of the Judge Advocate General that provides an
explanation for post-trial processing delay whenever more than 120 days pass
from the date of trial to the date of the CA’s action.


                                     18
     Additionally, we find no evidence that the Government could
have anticipated that the transcription process would have been
found so wanting. Portions of the record had to be sent back to
the transcriber and the military judge had to complete an audio
review of certain portions of the record.20 Additionally, this
was a large record of trial consisting of 18 volumes and 6,866
pages.

     Next, we examine whether the appellant objected to the
delay or asserted his right to timely review. See Arriaga, 70
M.J. at 57. Here, the appellant did not object to the delay or
assert his right to a timely review prior to his appeal in this
court. However, because the obligation to ensure a timely post-
trial process ultimately rests with the Government, this factor
only slightly weighs against the appellant. See id.

     Analyzing the fourth factor, prejudice, we consider three
interests associated with prompt post-trial processing: (1)
prevention of oppressive incarceration; (2) minimization of
anxiety and concern of those awaiting the outcome of their
appeals; and, (3) limitation of the possibility that a convicted
person’s grounds for appeal, and his defense -- in the event of
reversal and retrial -- might be impaired by the delay. Moreno,
63 M.J. at 138-41. Addressing the relevant sub-factors, we
conclude that the appellant has failed to meet his burden of
establishing prejudice.

     To demonstrate prejudice flowing from oppressive
incarceration, the appellant must succeed on a substantive legal
claim. Id. at 139. Although we found merit in two of the
appellant’s four AOEs, in neither instance did we conclude that
the appellant suffered substantive prejudice. We conclude that
our decision to consolidate one charge and dismiss two others
does not rise to the level of a substantive claim within the
meaning of Moreno.21



20
  According to the CA’s post-trial processing letter, the military judge had
to complete an audio review of 29 discrepancies within the record of trial.
This is corroborated by the military judge’s authentication certificate of 28
June 2013. Additionally, in his authentication certificate, the military
judge annotated 19 discrepancies that included missing prosecution and
appellate exhibits.
21
  With regard to AOE III, we did not find, and the appellant does not claim,
prejudice flowing from the CA’s failure to annotate in his action the
fourteen days of pretrial confinement credit.


                                     19
     Similarly, the appellant does not demonstrate nor claim
“‘particularized anxiety or concern that is distinguishable from
the normal anxiety experienced by prisoners awaiting an
appellate decision.’” Arriaga, 70 M.J. at 58 (quoting Moreno,
63 M.J. at 140). While the appellant makes a glancing reference
to having had to endure “the anxiety of waiting for his clemency
determination,” Appellant’s Brief at 15, this is insufficient to
show particularized anxiety.22

     We next consider whether this is an appropriate case to
exercise our authority to grant relief under Article 66(c),
UCMJ, in light of Toohey v. United States, 60 M.J. 100, 101-02
(C.A.A.F. 2004), United States v. Tardif, 57 M.J. 219, 224
(C.A.A.F. 2002), and the factors articulated in United States v.
Brown, 62 M.J. 602, 607 (N.M.Ct.Crim.App. 2005) (en banc).
Having done so, we find the post-trial processing delay does not
affect the findings or the sentence that should be approved in
this case. The length and complexity of the record of trial, in
combination with the unanticipated delay associated with the
civilian transcription company’s lack of proficiency in
processing this military record of trial, provide a sufficient
explanation for the delay. Additionally, we do not find any bad
faith or gross negligence on the part of the Government.
Accordingly, we decline to grant relief.

     V. Administrative Credit for Civilian Pretrial Confinement

     In his third AOE, the appellant argues that that the CA
erred in not awarding sentence credit of fourteen days that the
appellant spent in a pretrial confinement in a civilian
facility. Appellant’s Brief at 16. The Government conceded the
appellant’s entitlement to administrative credit both at trial
and on appeal. Accordingly, we will order corrective action in
our decretal paragraph.

                              VI. Conclusion

     The finding of guilty of Charge II and its specification
(involuntary manslaughter) and Specification 1 of Charge IV
(negligent homicide) are set aside and Charge II and its
specification and Specification 1 of Charge IV are dismissed.

     Specifications 1 and 2 of Charge III are consolidated into
one specification under Charge III to read as follows:
22
  Because we provided limited relief, but otherwise affirm the findings and
adjudged sentence, sub-factor (3) is not applicable to our prejudice
analysis.
                                     20
    In that Master-At-Arms Seaman Brian T. Hart, U.S.
    Navy, Naval District Washington, Washington, D.C., on
    active duty, did, at or near Lexington Park, Maryland,
    between on or about 11 July 2010 to on or about 7
    August 2010, commit assaults upon B.L.H. a child under
    the age of 16 years, by squeezing and shaking her with
    his hands with a means likely to produce death or
    grievous bodily harm to wit: breaking her ribs and
    causing blunt force trauma to her head.

     With these modifications, we affirm the findings. Based on
our action on the findings, we have reassessed the sentence
under the principles contained in United States v. Moffeit, 63
M.J. 40 (C.A.A.F. 2006). Having done so, we conclude that the
adjudged sentence for the remaining offenses would have been at
least the same as that adjudged by the members and approved by
the CA.

     The supplemental court-martial order will properly reflect
that the adjudged sentence included total forfeiture of pay and
allowances and the administrative pretrial confinement credit
for the fourteen days that the appellant spent in civilian
confinement.

    Senior Judge MCFARLANE and Judge MCDONALD concur.

                                For the Court



                                R.H. TROIDL
                                Clerk of Court




                               21
