          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                         UNITED STATES

                                                     v.

                           Staff Sergeant DAVID D.B. LUCKADO
                                   United States Air Force

                                         ACM 37962 (recon)

                                              15 July 2014

         Sentence adjudged 8 April 2011 by GCM convened at Moody Air Force
         Base, Georgia. Military Judge: Donald R. Eller, Jr.

         Approved sentence: Dishonorable discharge, confinement for 18 years,
         forfeiture of all pay and allowances, and reduction to E-1.

         Appellate Counsel for the appellant:       Major Daniel E. Schoeni;
         Captain Christopher James; and Captain Michael Schrama

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

                                                  Before

                              ALLRED, MITCHELL, and WEBER
                                  Appellate Military Judges

                                   OPINION OF THE COURT
                                  UPON RECONSIDERATION

                    This opinion is subject to editorial correction before final release.



MITCHELL, Senior Judge:

        The appellant was convicted by a general court-martial composed of officer
members, contrary to his pleas, of three specifications of aggravated sexual contact with a
child, in violation of Article 120, UCMJ, 10 U.S.C. § 920. The adjudged and approved
sentence consisted of a dishonorable discharge, confinement for 18 years, reduction to
E-1, and total forfeiture of all pay and allowances.1

                                            Procedural History

         On 25 June 2013, the Secretary of Defense, “[p]ursuant to [his] authority under
title 5, United States Code, section 3101 et seq.,” issued a memorandum that “appoint[ed]
Mr. Laurence M. Soybel, a civilian employee of the Department of the Air Force, to
serve as appellate military judge on the Air Force Court of Criminal Appeals.”
Memorandum from Sec’y of Def. Chuck Hagel for Sec’y of the Air Force Eric Fanning,
(25 June 2013).

       When the appellant’s case was initially before us, the appellant raised three issues:
(1) the military judge abandoned his impartial role by asking questions that helped the
Government meet its burden of proof on a motion to suppress statements made by the
victim to a medical provider; (2) the appellant was subjected to cruel and unusual
punishment when, in order to prevent Article 12, UCMJ, 10 U.S.C. § 812 violations, he
was held in isolation in a civilian confinement facility; and (3) his rights under
Article 12, UCMJ, were violated when he was confined in immediate association with a
foreign national for 19 days after his release from solitary confinement.

       On 1 August 2013, we issued a decision affirming the approved findings and
sentence in the appellant’s case. United States v. Luckado, ACM 37962 (A.F. Ct. Crim.
App. 1 August 2013) (unpub. op.). Pursuant to his appointment by the Secretary of
Defense, Mr. Soybel was a member of the panel. The appellant moved our superior court
to vacate the decision on the basis of Mr. Soybel’s participation, and on
31 October 2013, our superior court converted the appellant’s motion to vacate, which
was pending before our court, into a motion for reconsideration. 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 the Secretary of Defense did not have the legislative authority to appoint
appellate military judges, and his appointment of Mr. Soybel to this Court was “invalid
and of no effect.”

        In light of Janssen, we granted the motion for reconsideration on 29 April 2014
and permitted the appellant to file a supplemental assignment of errors. The appellant
submitted a supplemental assignment of errors averring an additional issue: that he is
entitled to relief due to excessive post-trial processing delays. With a properly
constituted panel, we have reviewed the appellant’s case, to include the appellant’s
previous and current filings and the previous opinions issued by this Court. Finding no

1
  We note the charges and specifications which were withdrawn or dismissed after arraignment are not reflected on
the court-martial order (CMO). Promulgation of a corrected CMO, properly reflecting the disposition of these
charges and specifications, is hereby ordered.

                                                       2                                     ACM 37962 (recon)
error that materially prejudices a substantial right of the appellant, we affirm the findings
and sentence.

                                                  Background

        The appellant was a staff sergeant with more than 14 years of service, including a
deployment to Iraq in January 2010. He shared custody of his 6-year-old daughter, SL,
and his 12-year-old son with his ex-wife, Ms. SA. In January 2010, Ms. SA caught SL
“touching herself.” She saw similar behavior on several other occasions over the
following months. During this time, Ms. SA told SL that this was not appropriate
behavior for children. Ms. SA told SL that if she was doing this because someone had
touched her that person would go to jail, but if SL was doing this on her own then she
would be punished. On 23 May 2010, Ms. SA walked into SL’s room and found her
touching herself with her hand inside her pants. Ms. SA was angry and left the room for
a belt to punish SL. When Ms. SA returned to SL’s room, SL exclaimed that “I only do it
because he did it when he was here” and “I only do it because Daddy did it when he was
here.”

       After this initial report, a law enforcement investigation began. As part of the
investigation, Ms. SA received a referral to have SL examined by Dr. JL, a pediatrician
with the Children’s Advocacy Center in Macon, Georgia. On 22 July 2010, Dr. JL
examined SL and obtained a medical history from her regarding the abuse.

      A panel of officer members convicted the appellant of three of the specifications
and acquitted him of one specification.2

      In his unsworn statement to the members, the appellant raised the issue that he
would serve his initial confinement at the Cook County Jail because
Moody Air Force Base (AFB) did not have a military confinement facility. He asked the
members to consider that he would be in an “isolation cell” to prevent his contact with
“non-American inmates.” He also submitted this same unsworn statement in his
clemency submission to the convening authority.

        The appellant was confined at Cook County Jail from 8 April to 3 May 2011
before he was transferred to a military confinement facility. He was in segregation for
the first week and was then transferred to general population for the remainder of his time
at the county jail. He alleges that during his time with the general population there was a

2
  Several of the original charges and specifications were dismissed upon motion or withdrawn by the Government
prior to the members closing for deliberations. The military judge granted a defense motion for multiplicity and
dismissed Specification 3 of Charge II. After arraignment, the Government withdrew Charge III and its
specifications. The military judge sua sponte raised a Rule for Courts-Martial 917 motion and directed a finding of
Not Guilty to Charge I and its Specification, Specification 5 of Charge II, and to the excepted language of “on divers
occasions” from Specification 3 and Specification 4 of Charge II.

                                                          3                                      ACM 37962 (recon)
Mexican national who was also imprisoned and in the same pod, but he does not recall
the other prisoner’s name.3

                                        Partiality of Military Judge

      Trial counsel filed a motion in limine seeking the admission of statements made
by SL to Dr. JL pursuant to Mil. R. Evid. 803(4) as statements made for purposes of
medical diagnosis or treatment. Trial defense counsel objected to the statements as
inadmissible hearsay. At the motion hearing, both Ms. SA and Dr. JL were called as
witnesses. SL did not testify at the motion hearing.

       SL’s mother, Ms. SA, testified that although the consultation with the pediatrician
was arranged through law enforcement officials at Moody AFB, she was worried about
possible injury to her daughter’s reproductive system and was seeking a medical
evaluation. Prior to the appointment, she explained to her daughter that she was going to
see a female doctor who would conduct a physical examination and could help her if she
was hurt. Ms. SA took her daughter to an appointment with Dr. JL, a local pediatrician
and medical director of the Children’s Advocacy Center. Upon arrival, Dr. JL explained
to SL that she would be conducting a physical exam and would be examining her
“bottom.”

       In response to trial counsel’s questions, Dr. JL explained that she asks patients for
a medical history to aid in completing the physical exam. After Dr. JL was questioned by
counsel for each side, the military judge asked clarifying questions. The military judge
read each statement to her, asked if SL made the statement, and then asked why the
statement was necessary for a medical provider. As he explained, “What I am just trying
to figure out is why is this statement important to a medical provider.” For example:

        Q. . . . From a medical provider’s standpoint, how is that useful information
        in terms of determining how to examine or treat the child?

        A: None at all. . . .

        When assessing a military judge’s impartiality, we evaluate, based on the entire
trial, whether “a court-martial’s legality, fairness, and impartiality were put into doubt
from the objective viewpoint of a reasonable person.” United States v. Merritt,
71 M.J. 699, 706 (A.F. Ct. Crim. App. 2012), rev’d in part on other grounds, 72 M.J. 483
(C.A.A.F. 2013) (citing United States v. Ramos, 42 M.J. 392, 396 (C.A.A.F. 1995)). We
presume a military judge’s impartiality, the presumption is especially strong in the

3
  The Court notes that the appellant’s assignment of errors states that the appellant was incarcerated in the Cook
County Jail for 34 days, from 17 June to 20 July 2010. Additionally, the appellant states that this confinement was
“pretrial.” A review of the record of trial discloses the appellant was incarcerated in the Cook County facility for
26 days from 8 April to 3 May 2011. Additionally, all of the appellant’s confinement was post-trial.

                                                         4                                     ACM 37962 (recon)
context of judicial proceedings, and we require the appellant to clear a “high hurdle”
when alleging bias. Id. (citing United States v. Quintanilla, 56 M.J. 37, 44 (C.A.A.F.
2001)). “The military judge may be an active participant in the proceedings, but, must
take care not to become an advocate for either party. A defense failure to object at trial to
alleged partisan action by the military judge ‘may present an inference that the defense
believed that the military judge remained impartial.’” Id. (quoting United States v.
Foster, 64 M.J. 331, 332-33 (C.A.A.F. 2007)).

        Here, trial defense counsel did not object to the military judge’s questions. The
military judge was clearly trying to determine the facts so he could render a ruling on this
pretrial motion. As a result of the military judge’s questions, he ruled that two of the
statements and a portion of a third statement were inadmissible. Even looking solely at
this one part of the trial, there is no question that an objective reasonable spectator would
have no doubt about the fairness and legality of the proceedings and the impartiality of
the military judge. When looking at the whole context of the trial, to include the military
judge’s ruling dismissing a specification as multiplicious, granting a motion to suppress
evidence of the appellant’s possession of a computer file with a title suggestive of child
pornography, granting the two defense challenges for cause over trial counsel objection,
and his sua sponte Rule for Courts-Martial 917 rulings, it is clear the military judge was
impartial and directly responsible for a court-martial that was objectively legal, fair, and
impartial.

                               Cruel and Unusual Punishment

       The appellant argues he is entitled to relief for “cruel and unusual” punishment
because he was held in an isolation cell during his first week at Cook County Jail. The
appellant complains he did not have the same privileges as those in the general
population, as he was required to sleep on a concrete bench without a mattress and did
not have a television, a window, or access to recreation.

      We review de novo whether the facts alleged constitute cruel and unusual
punishment under the Eighth Amendment.4 United States v. Lovett, 63 M.J. 211
(C.A.A.F. 2006). This is also true for violations alleged under Article 55, UCMJ, 10
U.S.C. § 855.

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


4
    U.S. CONST. amend. VIII.

                                              5                              ACM 37962 (recon)
       This Court has previously addressed post-trial confinement of Airmen from
Moody AFB, which does not have its own confinement facility, at local facilities and
claims of cruel and unusual punishment for time in isolation. See United States v.
Wilson, 73 M.J. 529 (rem) (A.F. Ct. Crim. App. 2014); United States v. Simmons,
ACM 37967 (A.F. Ct. Crim. App. 27 June 2012) (unpub. op.). The appellant’s claim
fails on two fronts. First, solitary confinement, and its inherently restrictive conditions,
does not alone rise to the level of deprivation of life’s necessities and is not a violation of
the Eighth Amendment. United States v. Avila, 53 M.J. 99 (C.A.A.F 2000). Second, the
appellant fails to establish the Air Force or local jail officials were deliberately indifferent
to his health and safety. The record indicates that time in isolation was determined in
part by the Cook County Jail in order to verify that there were no foreign nationals
present before transferring Airmen to the general population. See Wilson, 73 M.J. at 535.

                                  Confinement with Foreign Nationals

        After approximately one week in solitary confinement, the appellant was placed in
the general population at Cook County Jail until his transfer to a military confinement
facility on 3 May 2011. The appellant alleges that a Mexican national was in the same
pod, shared the same common areas, and was frequently in the appellant’s sleeping
quarters playing cards and chess with inmates who shared the same sleeping quarters as
the appellant. The appellant did not raise this as an issue in clemency nor is there any
evidence that he complained about this condition to the local confinement officials.5

        Article 12, UCMJ, 10 U.S.C. § 812, states: “No member of the armed forces may
be placed in confinement in immediate association with enemy prisoners or other foreign
nationals not members of the armed forces.” We have previously declared, “[i]n light of
the plain meaning of Article 12, UCMJ, which contains no geographical limitation
whatsoever, and made further clear by its legislative history, we conclude that Article 12,
UCMJ, applies to members of the armed forces ‘everyplace,’ to include confinement
facilities within the continental United States.” Wilson, 73 M.J. at 533. We review de
novo whether an appellant’s post-trial confinement violates Article 12, UCMJ. United
States v. Wise, 64 M.J. 468, 473–74 (C.A.A.F. 2007).

        Appellate courts have long required prisoners to seek administrative resolution of
their grievances regarding post-trial confinement, including the prisoner grievance system
of the confinement facility, prior to judicial intercession. Id. at 469 (citing United States
v. White, 54 M.J. 469, 472 (C.A.A.F. 2001)). This administrative exhaustion requirement
furthers two related goals: (1) the prompt resolution of the conditions of confinement at
the lowest level and (2) development of the record for later appellate review. Wise,
64 M.J. at 471 (citing United States v. Miller, 46 M.J. 248, 250 (C.A.A.F. 1997)).
5
 Appellate defense counsel alleges the appellant and his trial defense counsel included a complaint about Article 12,
UCMJ, 10 U.S.C. § 812, violations in his clemency; however the clemency request only includes information about
solitary confinement in order to prevent Article 12, UCMJ, violations.

                                                         6                                      ACM 37962 (recon)
Because “a prime purpose of ensuring administrative exhaustion is the prompt
amelioration of a prisoner’s conditions of confinement, courts have required that these
complaints be made while an appellant is incarcerated.” Wise, 64 M.J. at 471. Unless
there are some unusual or egregious circumstances, an appellant with a complaint about
post-trial confinement conditions must show he has exhausted the prisoner-grievance
system at the confinement facility and that he has petitioned for relief under Article 138,
UCMJ, 10 U.S.C. § 938. Id. (citing White, 54 M.J. at 472).

        The appellant was clearly aware of Article 12, UCMJ, and its prohibition, as he
included a reference to it in his written unsworn statement at trial: “During my time at
Cook County Jail, I will be in a [sic] isolation cell so that I do not accidentally come into
contact with non-American inmates. As I understand it, it would violate the law for
military inmates to have contact with non-Americans.” The appellant also included this
same unsworn statement in his clemency request. Yet the appellant did not make any
complaints about a violation of Article 12, UCMJ, in his clemency petition even though
his clemency request was submitted after he was transferred to the United States
Disciplinary Barracks at Fort Leavenworth, Kansas. The appellant waited until appellate
review before he raised the issue. He did not notify anyone in his chain of command or
at the confinement facility of the Article 12, UCMJ, violation at the time it was allegedly
occurring, nor did he file a grievance or make an Article 138, UCMJ, complaint. As a
result, the Air Force was unable to investigate the claims, make a record of the facts, or
immediately correct the situation, if warranted. With these facts, we find no “unusual or
egregious circumstance” to excuse the appellant’s failure to pursue available
administrative remedies. See Wise, 64 M.J. at 471. Accordingly, relief for the
appellant’s claim of a violation of Article 12, UCMJ, is not warranted.

                             Appellate Review Time Standards

        We review de novo “[w]hether an appellant has been denied [his] due process
right to a speedy post-trial review . . . and whether any constitutional error is harmless
beyond a reasonable doubt.” United States v. Allison, 63 M.J. 365, 370 (C.A.A.F. 2006).
A presumption of unreasonable delay arises when appellate review is not completed and
a decision is not rendered within 18 months of the case being docketed before this Court.
United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006). 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; United States v. Roach, 69 M.J. 17
(C.A.A.F. 2010). However, when a case is not completed within 18 months, such a delay
is presumptively unreasonable and triggers an analysis of the four factors elucidated in
Barker v. Wingo, 407 U.S. 514 (1972), and Moreno. See United States v. Arriaga,
70 M.J. 51, 55 (C.A.A.F. 2011). Those factors are “(1) the length of the delay; (2) the
reasons for the delay; (3) whether the appellant made a demand for a speedy trial; and

                                             7                              ACM 37962 (recon)
(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.

       This case was originally docketed for appellate review on 5 January 2012. After
considering the briefs from appellate counsel, this Court rendered its first decision on
1 August 2013. The overall delay of more than 540 days between the time of docketing
and review by this Court is facially unreasonable. As stated supra, our superior court
recently decided that one of the judges who participated in that decision was not properly
appointed. See Janssen, 73 M.J. at 222. Accordingly, we have considered the appellant’s
court-martial before a properly constituted panel and issue this decision. The time
between our superior court’s action and this decision did not exceed 18 months; therefore
the Moreno presumption of unreasonable delay is not triggered for this period of time.
See Mackie, 72 M.J. at 136.

        We analyze the Barker factors for the delay leading up to our first decision. The
first factor weighs in favor of the appellant; the length of the delay between docketing
and our first decision is presumptively unreasonable and therefore satisfies the first
Barker factor. Moreno, 63 M.J. at 142. The second factor weighs in favor of the
appellant. While the delay may have been related to the number of personnel assigned to
the court, we are mindful of our superior court’s emphasis that the established
benchmarks do not create a free period, and “personnel and administrative issues . . . are
not legitimate reasons justifying otherwise unreasonable post-trial delay.” Arriaga,
70 M.J. at 57. Third, although the Government carries the burden of primary
responsibility for speedy post-trial processing, United States v. Bodkins, 60 M.J. 322,
323–24 (C.A.A.F. 2004), the appellant did not assert his right to speedy post-trial
processing until 19 May 2014 in his supplemental assignment of error. Even though we
sua sponte addressed the presumptively unreasonable delay in our first opinion, the
appellant did not raise this as an issue in his petition for grant of review. His
24 October 2013 submission to our superior court did not include a demand for speedy
appellate review. Finally, on the fourth factor, the appellant fails to demonstrate any
prejudice in this case. “An appellant must demonstrate a particularized anxiety or
concern that is distinguishable from the normal anxiety experienced by prisoners
awaiting an appellate decision.” Arriaga, 70 M.J. at 58 (internal quotations marks and
citations omitted). Here, the appellant has not done so.

        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

                                             8                             ACM 37962 (recon)
egregious as to adversely affect the public’s perception of fairness and integrity of the
military justice system. We are convinced the error is harmless beyond a reasonable
doubt.

        While we find the post-trial delay was harmless, that does not end our analysis.
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 and
Marine Court colleagues identified a “non-exhaustive” list of factors to consider in
evaluating whether Article 66(c), UCMJ, relief should be granted for post-trial delay.
Among the non-prejudicial factors are the length and reasons for the delay; the length and
complexity of the record; the offenses involved; and the evidence of bad faith or gross
negligence in the post-trial process. Id. at 607. We find there was no bad faith or gross
negligence in the post-trial processing in any stage of the appellate review of this matter.
The reason for the delay between 1 August 2013 and our opinion today 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 6
to appoint civilian employees to the service courts of criminal appeals. We conclude
sentence relief under Article 66, UCMJ, is not warranted.

                                          Conclusion

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

                                          AFFIRMED.



                     FOR THE COURT


                     STEVEN LUCAS
                     Clerk of the Court




6
    U.S. CONST. art. II, § 2, cl. 2

                                              9                            ACM 37962 (recon)
