          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                           Master Sergeant JAMEY L. CRAWFORD
                                    United States Air Force

                                               ACM 38408

                                               9 April 2015

         Sentence adjudged 20 March 2013 by GCM convened at Joint Base San
         Antonio-Lackland, Texas. Military Judge: Matthew D. Van Dalen (sitting
         alone).

         Approved Sentence: Bad-conduct discharge, confinement for 7 months,
         hard labor without confinement for 2 months, and reduction to E-4.

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

         Appellate Counsel for the United States:               Major Roberto Ramirez and
         Gerald R. Bruce, Esquire.

                                                  Before

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          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent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



MITCHELL, Senior Judge:

       The appellant was convicted, pursuant to mixed pleas, by a military judge sitting
alone, of failing to obey a lawful general regulation, making a false official statement,
committing consensual sodomy, and committing adultery, in violation of Articles 92,
107, 125, and 134, UCMJ; 10 U.S.C. §§ 892, 907, 925, 934. The court sentenced him to
a bad-conduct discharge, confinement for 7 months, hard labor without confinement for
2 months, and reduction to E-4. The convening authority approved the sentence as
adjudged and waived $1,500 of the pay per month from the automatic forfeitures to the
accused’s wife and dependent children.

        The appellant alleges that the time taken to prepare his record of trial was an
unreasonable delay that deprived him of his due process rights, that his sentence is
inappropriately severe, that apparent unlawful command influence (UCI) so permeated
the Air Force that he was unable to receive a fair trial and clemency consideration, and
that criminalizing consensual sodomy violated his constitutional rights.             In a
supplemental assignment of errors, the appellant argues his plea of guilty to Charge I and
its four specifications was improvident because the regulatory provision in question was
not punitive. We disagree with all of the alleged errors. However, as a derivative
argument on the constitutional challenge to the consensual sodomy charge, we separately
conclude that there is an unreasonable multiplication of charges and set aside Charge III
and its specification. We affirm the remaining charges and specifications. We reassess
the sentence and determine that the approved sentence is appropriate.

                                       Background

        The appellant was a married military training instructor (MTI) stationed at Joint
Base San Antonio-Lackland, Texas. In the spring of 2011, A1C AD attended basic
military training (BMT). The appellant was not her MTI; however, he was responsible
for all flights of trainees when they were in parades and ceremonies. Toward the end of
her BMT, the appellant and A1C AD exchanged personal text messages. The day after
she graduated from BMT and before she left for technical training, A1C AD and the
appellant engaged in consensual sexual intercourse.

       In the fall of 2011, A1C SG attended BMT. The appellant was not her flight
leader but was in a supervisory role. After she graduated from BMT, A1C SG attended
technical training in the local area. The appellant saw her on base and gave her his phone
number. They spent time with each other on four or five occasions and twice engaged in
consensual sexual activity.

                            Charges Brought Under AETCI 36-2909

       The appellant pled guilty to four specifications of violating a lawful general order,
Air Education and Training Command Instruction (AETCI) 36-2909, Professional and
Unprofessional Relationships (2 March 2007) (certified current 26 September 2011).
The order prohibited MTIs from developing or conducting a personal, intimate, or sexual
relationship with a trainee. The appellant now challenges his pleas as improvident
alleging that AETCI 36-2909 was not a lawful general order because it was not properly
published pursuant to Air Force instructions. This court recently determined that AETCI
36-2909 is sufficient to be a lawful general order. See United States v. Leblanc,



                                             2                                   ACM 38408
__ M.J. __, ACM 38396 (A.F. Ct. Crim. App. 26 March 2015). We follow this binding
precedent and reject the appellant’s argument.

                                 Unlawful Command Influence

       As he did at trial, the appellant argues that UCI so permeated his trial that he was
denied a fair trial and clemency consideration. The military judge considered the
appellant’s argument and evidence and denied the defense motion. The military judge
based his ruling on the following findings of fact:

       Lieutenant Colonel JC, the 331st Training Squadron Commander, preferred the
charges and specifications on 24 October 2012 and Brigadier General TC, the 502d Air
Base Wing Commander, referred them on 13 January 2013. There was media attention
directed toward allegations of misconduct by military training instructors at Joint Base
San Antonio-Lackland prior to the appellant’s trial. However, “this coverage had
subsided somewhat in recent months” and that only a few of the articles referenced the
appellant. The previous 737th Training Group Commander, Col GP, made statements in
April 2012 that there was a “cancer” in basic military training created by some MTIs who
were “sullying the name” and he needed “to get them out.” Col GP was removed from
his position in August 2012. Sometime during the investigation, the appellant was
relieved of his MTI duties, his photograph was removed from the array of current MTIs,
and he was no longer authorized to wear the distinctive MTI hat. The Air Force Times
also reported on statements made by the Air Force Chief of Staff (CSAF) in January 2013
regarding MTI misconduct.

        We review allegations of UCI de novo.              United States v. Wallace,
39 M.J. 284, 286 (C.M.A. 1994). Article 37(a), UCMJ, 10 U.S.C. § 837(a), states in part:
“No person subject to this chapter may attempt to coerce or, by any unauthorized means,
influence the action of a court-martial or any other military tribunal or any member
thereof, in reaching the findings or sentence in any case . . . .” The appellant has the
initial burden of raising UCI. United States v. Stombaugh, 40 M.J. 208, 213
(C.M.A. 1994). Once the issue of command influence is properly placed at issue, “no
reviewing court may properly affirm findings and sentence unless [the court] is persuaded
beyond a reasonable doubt that the findings and sentence have not been affected by the
command influence.” United States v. Thomas, 22 M.J. 388, 394 (C.M.A. 1986). At the
appellate level, we evaluate UCI in the context of a completed trial using the following
factors: “[T]he defense must (1) show facts which, if true, constitute [UCI]; (2) show
that the proceedings were unfair; and (3) show that [UCI] was the cause of the
unfairness.” United States v. Biagase, 50 M.J. 143, 150 (C.A.A.F. 1999) (citing
Stombaugh, 40 M.J. at 213); see also United States v. Simpson, 58 M.J. 368, 374
(C.A.A.F. 2003); United States v. Reynolds, 40 M.J. 198, 202 (C.M.A. 1994).




                                             3                                  ACM 38408
        We reach the same conclusion as the military trial judge and deny the appellant
any relief on this issue. We find the appellant has not met his burden of establishing facts
that would constitute UCI. We do not see how the earlier statements of a prior
commander who was no longer in that position can result in the UCI of a superior officer
who made the decision to refer the charges. The CSAF’s statements were made after the
decision to prefer and refer the charges and we do not see any nexus between those
statements and the commander’s earlier decisions. When the military judge denied the
motion, he also specifically held open reconsideration based on the member’s responses
during voir dire to questions about pretrial publicity. 1 To the extent the appellant is
arguing that pretrial publicity adversely affected his court-martial, we also find he has
failed to meet his burden in that regard. See United States v. Simpson, 58 M.J. 368, 372
(C.A.A.F. 2003) (stating that the defense may raise the issue of unfair pretrial publicity
by demonstrating either presumed or actual prejudice). Furthermore, the appellant chose
to proceed without members. There is no evidence that any of the pretrial publicity or
statements by the CSAF had any influence on the military judge. The military judge as
the trier of fact is presumed to know the law and follow it. United States v. Phillips,
70 M.J. 161, 168 (C.A.A.F. 2011). We find no evidence in the record to rebut this
presumption.

                           Constitutionality of Article 125 for Consensual Sodomy

       The appellant challenges the constitutionality of his conviction for a violation of
Article 125, UCMJ, Sodomy. Constitutional challenges to Article 125 are addressed on
an as applied, case-by-case basis using a tripartite framework within the military context.
United States v. Stirewalt, 60 M.J. 297, 304 (C.A.A.F. 2004).

                  First, was the conduct that the accused was found guilty of
                  committing of a nature to bring it within the liberty interest
                  identified by the Supreme Court? Second, did the conduct
                  encompass any behavior or factors identified by the Supreme
                  Court as outside the analysis in Lawrence? Third, are there
                  additional factors relevant solely in the military environment
                  that affect the nature and reach of the Lawrence liberty
                  interest?

United States v. Marcum, 60 M.J. 198, 206-07 (C.A.A.F. 2004) (citing to Lawrence v.
Texas, 539 U.S. 558 (2003)) (citation omitted).

       We conclude that the Article 125, UCMJ, as applied to the appellant is
constitutional based on the factors unique to the military environment evident in this case.
1
  Within two weeks of referral, the military judge issued an order to all the prospective members prohibiting them
from reading or listening to stories about the appellant or cases with similar allegations. The order also required the
members to report any knowledge of articles.


                                                          4                                             ACM 38408
A1C SG attended BMT from September to November 2011. The appellant was not her
MTI but she knew that he was an MTI. She interacted twice with him during BMT and
both times the appellant acted professionally. Approximately two to three weeks after
she graduated BMT, A1C SG and a friend saw the appellant and after some conversation
she asked for his phone number which he provided. Sometime later, the appellant picked
up A1C SG and her friend from the bowling alley and drove them to a hotel. While her
friend stayed at the front of the room with another MTI, A1C SG and the appellant
retreated to the bedroom. When asked what happened next, A1C SG explained, “We
were talking and we had sex.” This included the appellant using his tongue and his penis
to penetrate her vagina. A1C SG agreed that the sexual activity was consensual and the
appellant did not force her.

       The evidence is that the appellant and A1C SG were competent adults who
engaged in private consensual sexual activity. The nature of the activity brings it within
the sphere of the liberty interests identified by the Supreme Court and does not include
any behavior or factors outside that Lawrence analysis. In short, this case is strikingly
similar to Lawrence in that it involves “two adults who, with full and mutual consent
from each other, engaged in sexual practices” that included sodomy. Lawrence, 539 U.S.
at 578. However, “servicemembers . . . do not share the same autonomy as civilians.”
Marcum, 60 M.J. at 206. “We consider [the appellant’s] zone of autonomy and liberty
interest in light of the established [service] regulations and the clear military interests of
discipline and order that they reflect.” United States v. Stirewalt, 60 M.J. 297, 304
(C.A.A.F. 2004). Here the appellant’s actions were in violation of AETCI 36-2909.
There is no evidence in the record that the appellant had an authority or responsibility
over A1C SG other than that inherent in the difference between their ranks. The AETCI
prohibits the appellant as an MTI from engaging in certain relationships with trainees
who have completed training but have not yet reported to their permanent duty station. It
specifically prohibits a “personal, intimate or sexual relationship” between MTIs and
trainees. Based solely on this third Marcum factor, we conclude the appellant’s
consensual sexual relationship with A1C SG is outside the bounds of constitutionally
protected activity because it was explicitly prohibited by the AETC instruction.

                         Unreasonable Multiplication of Charges

       When reviewing issues of unreasonable multiplication, we apply a five-part test
that considers: (1) whether an objection was made at trial, (2) whether the specifications
are aimed at distinct criminal acts, (3) whether the number of charges and specifications
misrepresent or exaggerate the charged criminality, (4) whether the number of charges
and specifications unreasonably increase the punitive exposure, and (5) whether the
evidence shows prosecutorial overreaching or abuse in drafting the charges.
United States v. Pauling, 60 M.J. 91, 95 (C.A.A.F. 2004) (citing United States v. Quiroz,
55 M.J. 334, 338 (C.A.A.F. 2001)). The factors are to be balanced, with no single factor



                                              5                                   ACM 38408
dictating the result. Id. We review a military judge’s determination that charges were
not unreasonably multiplied for an abuse of discretion. Id.

       Based on his interactions with A1C SG, the appellant was convicted of four
offenses2: Specification 3 of Charge I for violating the lawful general regulation AETCI
36-2909 by establishing or carrying on a personal social relationship with her,
Specification 4 of Charge I for violating the lawful general regulation AETCI 36-2909 by
wrongfully conducting a sexual relationship with her, Charge III and its specification for
committing sodomy with her, and Specification 2 of Charge IV for committing adultery
(wrongful sexual intercourse with a woman who was not his wife). The appellant
objected at trial and the military judge denied the motion to dismiss based on multiplicity
and we concur. However, the military judge found evidence of overreaching and
unreasonableness. For the offenses involving A1C SG, the military judge merged the
specifications of Charge I for violating the lawful general order and the adultery
specification. The military judge denied any relief regarding the sodomy charge.

       We conclude that the military judge erred by not granting any relief regarding the
sodomy charge. As addressed above, the sodomy charge only survives the constitutional
challenge because it violates unique military concerns in prohibiting personal and sexual
relationships between MTIs and those individuals who have completed BMT but remain
in a training status; in short he was convicted of engaging in sexual activity (sodomy)
with her that was only unlawful because it violated the AETCI. The appellant was also
convicted for violating the AETCI for having a sexual relationship with A1C SG. We
find this to be an unreasonable multiplication of charges and set aside Charge III and its
specification.3

        In United States v. Campbell, 71 M.J. 19 (C.A.A.F. 2012), our superior court held
that in the context of unreasonable multiplication of charges, a military judge has broad
discretion to dismiss offenses, merge offenses, or merge offenses only for purposes of
sentencing.

       The military judge denied the motion to dismiss the adultery specifications. The
military judge merged the adultery specification with the specifications regarding
violations of the AETCI for the appellant’s interactions with A1C SG. The military
judge also merged the adultery specification with the specifications alleging a violation of
the AETCI for the appellant’s interactions with A1C AD. After the military judge denied
the motion to dismiss and merged the specifications for sentencing purposes, the

2
  After arraignment and the plea inquiry, the trial counsel withdrew Specification 5 of Charge I alleging another
violation of the lawful general regulation for conducting a sexual relationship with A1C SG after 3 January 2012.
3
  Our set aside of Charge III and its specification is a conditional set aside dependent upon affirming Specification 4
of Charge I or a lesser included offense. See United States v. Stanley, 60 M.J. 622, 630 (A.F. Ct. Crim. App. 2004)
(conditionally dismissing one of two charges stemming from the same underlying conduct and reassessing the
sentence accordingly).


                                                          6                                             ACM 38408
appellant pled guilty to these specifications. We find the following portion of the plea
inquiry regarding the adultery with A1C AD to be informative:

             MJ: As, before I’m going to ask some follow-up questions.
             This appears to be the same conduct which underlies
             Specification 2 of Charge I [(violation of AETCI 36-2909 by
             having vaginal intercourse with A1C AD)] that you discussed
             earlier. Is that accurate?

             ACC: Yes, sir.

             MJ: So all those facts that you gave me previously also
             apply to this specification?

             ACC: Yes, sir

        We do not find an abuse of discretion in the military judge’s merging, instead of
dismissing, the adultery specifications.            Cf. United States v. Elespuru,
73 M.J. 326, 329–30 (C.A.A.F. 2014) (recognizing that dismissal of one specification
charged in the alternative of another is appropriate where the factfinder returns findings
of guilt on both specifications, even where the issue has been waived at trial). The trial
counsel specifically stated that these offenses were not charged in the alternative but
instead were aimed at specifically different criminal aspects of the appellant’s same
behavior. However, the evidence at trial focused on the adultery being criminal because
it violated the AETCI which limited MTI and trainee relationships. See United States v.
Gutierrez, 74 M.J. 61 (C.A.A.F. 2015) (holding that the appellant’s adultery was
wrongful because it violated his commander’s order and therefore fell outside of
constitutional liberty interests). Not only do we conclude that the military judge did not
abuse his broad discretion in fashioning an appropriate remedy, but we note that charging
both offenses for the exact same behavior is direct evidence of overreach under Quiroz.
The military judge could have dismissed or conditionally dismissed the adultery
specifications; however, his decision to merge them for sentencing purposes was not an
abuse of his broad discretion.

                                 Post-Trial Processing

      a. Completion of the Record of Trial and Convening Authority’s Action

       We review de novo whether an appellant has been denied the due process right to
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). The
appellant’s court-martial concluded on 20 March 2013 and the convening authority
issued the action 120 days later on 18 July 2013. The appellant concedes that this does


                                            7                                  ACM 38408
not trigger the presumption of unreasonable established in United States v. Moreno,
63 M.J. 129, 142 (C.A.A.F. 2006). However, the appellant argues the unique facts of his
case render the post-trial processing prejudicially unreasonable. The appellant notified
the legal office that he intended to apply to the return to duty program (RTDP), he needed
a completed record of trial as a prerequisite and that all applications to the program were
due by 31 May 2013 as the program was being eliminated. A lieutenant colonel, three
master sergeants, and the military judge all wrote letters supporting the appellant’s RTDP
admission. On 18 May 2013, the chief of military justice explained that there were 18
courts-martial and administrative discharge boards in post-trial processing, that the base
had requested additional assistance, and that they were prioritizing the caseload based on
Moreno requirements as well as expiration of term of service dates. We conduct a
case-specific analysis to determine if any given delay is facially unreasonable and if the
delay is not, then the full due process analysis is not triggered. Toohey v. United States,
60 M.J. 100, 103 (C.A.A.F. 2004). We conclude that the length of time to complete the
record of trial was reasonable. Additionally, to the extent that “malicious delay” may
require additional analysis, we conclude that any delay was not malicious.
See United States v. Mackie, 72 M.J. 135, 136 (C.A.A.F. 2013) (holding that malicious
delay as factor is a question for another day). Therefore, the full analysis is not required
and the appellant is not entitled to any relief.

       b. Appellate Review

       This case was docketed with us on 12 August 2013 and the decision was issued
20 months later. When appellate review is not completed and a decision is not rendered
within 18 months after docketing with the court, there is a presumption of unreasonable
delay. Moreno, 63 M.J. at 142. Because the time from docketing to the initial decision
violates the Moreno standard, this presumptively unreasonable delay triggers an analysis
of the four factors elucidated in Barker v. Wingo, 407 U.S. 514, 530 (1972), adopted in
Moreno, 63 M.J. at 135. 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) (citing
Barker, 407 U.S. at 530).

        The delay is presumptively unreasonable, so it weighs in favor of the appellant and
we turn to the other factors. Moreno, 63 M.J. at 136. The appellant has not specifically
made a demand for speedy appellate review. However, because his initial assignment of
error raised a complaint about the “unreasonable” delay in post-trial processing, we find
this factor weighs, minimally, in favor of the appellant.

       As for the reasons for the delay, the appellant submitted an original assignment of
errors on 12 May 2014. Over government opposition, the appellant submitted an
additional assignment of error on 17 October 2014. This additional assignment of error
alleged that the appellant’s pleas were not provident as the underlying instruction was not


                                             8                                   ACM 38408
punitive. We have addressed the merits of this argument. See supra pp. 2–3. The same
challenge to AETCI 36-2909 was also raised in Leblanc, ACM 38396. This court
decided to consider that case en banc and issued a written decision. This opinion was
issued shortly afterwards. Regarding the time for our consideration of the merits of
appellant’s case, our superior court applies “a more flexible review of this period,
recognizing that it involves the exercise of the Court of Criminal Appeals’ judicial
decision-making authority.” Moreno, 63 M.J. at 137. In Moreno, our superior court held
that “a period of slightly over 6 months is not an unreasonable time for review by the
Court of Criminal Appeals.” Id. at 137–38. It would be inconsistent to allow the
appellant to file a supplemental pleading raising new errors unrelated to post-trial
processing delay and then to hold the additional time to consider these new matters
against the government. We conclude this factor weighs against the appellant.

        When assessing prejudice for a due process post-trial delay analysis, we examine
“three similar interests for prompt appeals: (1) prevention of oppressive incarceration
pending appeal; (2) minimization of anxiety and concern of those convicted awaiting the
outcome of their appeals; and (3) limitation of the possibility that a convicted person’s
grounds for appeal, and his or her defenses in case of reversal and retrial, might be
impaired.” Moreno, 63 M.J. at 138–39. The second factor requires “an appellant to show
particularized anxiety or concern that is distinguishable from the normal anxiety
experienced by prisoners awaiting an appellate decision.” Id. at 140. Regardless of any
minimal release date, the appellant had served his complete sentence to confinement prior
to filing his first assignment of error. The appellant has also not identified any
particularized anxiety.

        When there is no showing of prejudice under the fourth Barker 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.” Toohey, 63 M.J. at 362. Having
considered the totality of the circumstances and the entire record, when we balance all the
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.

                                       Tardif Relief

       Additionally, Article 66(c), UCMJ, 10 U.S.C. § 866(c), 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-Marine Corps Court colleagues identified a
“non-exhaustive” list of factors to consider in evaluating whether Article 66(c), UCMJ,


                                             9                                   ACM 38408
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. Many of these factors are addressed above. We conclude that sentence relief
under Article 66, UCMJ, is not warranted

                                  Sentence Reassessment

       This Court has “broad discretion” when reassessing sentences. United States v.
Winckelmann, 73 M.J. 11, 12 (C.A.A.F. 2013). 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.M.A. 1986). This analysis is based on a totality of the circumstances
with the following as illustrative factors: dramatic changes in the penalty landscape and
exposure, the forum, whether the remaining offenses capture the gravamen of the
criminal conduct, whether significant or aggravating circumstances remain admissible
and relevant, and whether the remaining offenses are the type that we as appellate judges
have experience and familiarity with to reliably determine what sentence would have
been imposed at trial. Winckelmann, 73 M.J. at 15–16.

       The remaining offenses capture the gravamen of the criminal conduct. The
appellant, as an MTI, was prohibited from having personal and sexual relationships with
A1C AD and A1C SG as they were still considered trainees even though they had
completed BMT. Our grant of relief to the appellant is based precisely on the concept
that the remaining specifications fully encompass the criminal conduct expressed in the
charge and specification we dismissed. All the significant and aggravating circumstances
remain admissible and relevant. Because the military judge had merged most of the
charges and specifications, we find that there is no dramatic change in the penalty
landscape. The forum was military judge alone and we are “more likely to be certain of
what a military judge would have done.” Winckelmann, 73 M.J. at 16. We reassess to
the same sentence the military judge originally adjudged. We are confident that
correction of the errors addressed above would not have reduced the adjudged sentence.




                                             10                                  ACM 38408
                                         Conclusion

       We, conditionally, set aside Charge III and its specification. We affirm the
remaining findings. The findings, as conditionally modified, 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.

Accordingly, the approved findings, as modified, and the sentence are

                                           AFFIRMED.



             FOR THE COURT



             LEAH M. CALAHAN
             Deputy Clerk of the Court




                                             11                               ACM 38408
