              U NITED S TATES AIR F ORCE
             C OURT OF C RIMINAL APPEALS
                         ________________________

                           No. ACM 38831 (reh)
                         ________________________

                            UNITED STATES
                                Appellee
                                     v.
                         Elis M. LASALLE
             Airman Basic (E-1), U.S. Air Force, Appellant
                         ________________________

        Appeal from the United States Air Force Trial Judiciary
                         Decided 21 August 2019
                         ________________________

Military Judge: James Dorman (arraignment); John Harwood (rehear-
ing).
Approved sentence: Dishonorable discharge and confinement for 7
years. Sentence adjudged 18 October 2017 by GCM convened at Shep-
pard Air Force Base, Texas.
For Appellant: Major Dustin J. Weisman, USAF; Joseph M. Owens,
Esquire.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major Mi-
chael T. Bunnell, USAF; Mary Ellen Payne, Esquire.
Before MAYBERRY, MINK, and KEY, Appellate Military Judges.
Senior Judge MINK delivered the opinion of the court, in which Chief
Judge MAYBERRY and Judge KEY joined.
                         ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 30.4.
                       ________________________
MINK, Senior Judge:
  This case is before us for the second time. In April 2014, a general court-
martial composed of a military judge alone found Appellant guilty, pursuant
                   United States v. LaSalle, No. ACM 38831 (reh)


to his plea, of attempting to persuade a child to engage in sexual activity that
violated state law, contrary to 18 U.S.C. § 2422(b), a crime or offense not cap-
ital in violation of Article 134, Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 934. The military judge also found Appellant guilty, contrary to his
plea, of using force to cause Airman First Class (A1C) MR to engage in sexual
intercourse in violation of Article 120, UCMJ, 10 U.S.C. § 920. 1 The military
judge sentenced Appellant to a dishonorable discharge, confinement for 15
years, and forfeiture of all pay and allowances. The convening authority ap-
proved the adjudged sentence. In his initial appeal, Appellant raised six as-
signments of error, and we granted relief as to one of them by setting aside
the Article 134, UCMJ, enticement conviction because Appellant’s guilty plea
was improvident, but affirmed the Article 120, UCMJ, rape conviction. We
also set aside the sentence and authorized a rehearing on both the set aside
offense and the sentence. United States v. LaSalle, No. ACM 38831, 2016
CCA LEXIS 749 (A.F. Ct. Crim. App. 23 Nov. 2016) (unpub. op.).
    On 6 March 2017, the general court-martial convening authority ordered
a rehearing on the enticement offense and for the purpose of sentencing Ap-
pellant. Appellant was arraigned at Fort Leavenworth, Kansas on 24 May
2017 and the rehearing was held at Sheppard Air Force Base (AFB), Texas
from 16–18 October 2017. A general court-martial composed of a military
judge alone found Appellant not guilty of the Article 134 enticement offense
and then sentenced Appellant for the previously affirmed sexual assault of-
fense. The adjudged and approved sentence consisted of a dishonorable dis-
charge and confinement for seven years.
    Appellant now asserts three assignments of error: (1) whether the mili-
tary judge erred by considering A1C MR’s unsworn statement when deciding
on a sentence; (2) whether Appellant is entitled to sentence relief based on a
facially unreasonable post-trial processing delay after his trial in April 2014;
and (3) whether the convening authority’s action and the court-martial order
should be corrected to reflect the pretrial confinement credit awarded Appel-
lant by the military judge. 2 While Appellant also requests that we reconsider




1These offenses to which Appellant was found guilty are from the Manual for Courts-
Martial, United States (2012 ed.) (MCM). All other references in this opinion to the
UCMJ and the Rules for Courts-Martial (R.C.M.) are from the 2016 MCM, unless
otherwise indicated.
2   The assignments of error were reordered by the court.




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                 United States v. LaSalle, No. ACM 38831 (reh)


our decision on the assignments of error raised in his initial appeal, we de-
cline to do so. 3
   We find the military judge did not abuse his discretion in considering A1C
MR’s unsworn statement and that Appellant is not entitled to relief for the
post-trial delay between the conclusion of his trial in April 2014 and the con-
vening authority’s initial action. We further find that the omission of the
credit for pretrial confinement in the convening authority’s action following
the rehearing requires correction. We affirm the approved sentence and we
return the record to the The Judge Advocate General for remand to the con-
vening authority for a corrected action.

                                 I. BACKGROUND
   A1C MR, who was the victim of the offense for which Appellant was sen-
tenced at the rehearing, testified at Appellant’s original trial in April 2014
but did not do so at the rehearing on sentence. Instead, A1C MR submitted a
written unsworn statement for consideration by the court at the rehearing.

                                  II. DISCUSSION
A. Victim Impact Statement
    At the rehearing on sentence, trial defense counsel objected to the mili-
tary judge’s consideration of A1C MR’s unsworn statement because Rule for
Courts-Martial (R.C.M.) 1001A, permitting an unsworn statement from the
victim, had not yet been promulgated at the time of Apellant’s original trial
in April 2014. The military judge overruled the objection, relying in part on
our unpublished decisions in United States v. Parr, No. ACM 38878, 2017
CCA LEXIS 86 (A.F. Ct. Crim. App. 7 Feb. 2017) (unpub. op.), and United
States v. Rowe, No. ACM 38880, 2017 CCA LEXIS 89 (A.F. Ct. Crim. App. 8
Feb. 2017) (unpub. op.). In each of those cases, which were tried before the
promulgation of R.C.M. 1001A, we held that the military judges had not
abused their discretion by allowing consideration of a victim’s unsworn
statement based on the provisions of Article 6b, UCMJ, 10 U.S.C. § 806b. On



3 As stated above, Appellant raised six assignments of error in his initial appeal. We
granted relief on one issue, decided three issues contrary to Appellant, held that one
issue was made moot by our decision, and held that an allegation of unreasonable
post-trial processing was not yet ripe for appellate review. The issue of unreasonable
post-trial processing delay has been raised again by Appellant and we address it be-
low.




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                 United States v. LaSalle, No. ACM 38831 (reh)


appeal, Appellant asserts that the military judge abused his discretion by
considering the unsworn statement. We disagree.
   1. Law
     We review a military judge’s admission or exclusion of evidence, including
sentencing evidence, for an abuse of discretion. United States v. Stephens, 67
M.J. 233, 235 (C.A.A.F. 2009) (citing United States v. Manns, 54 M.J. 164,
166 (C.A.A.F. 2000)). “The abuse of discretion standard is a strict one, calling
for more than a mere difference of opinion. The challenged action must be
‘arbitrary, fanciful, clearly unreasonable,’ or ‘clearly erroneous.’” United
States v. McElhaney, 54 M.J. 120, 130 (C.A.A.F. 2000) (citing United States v.
Miller, 46 M.J. 63, 65 (C.A.A.F. 1997); United States v. Travers, 25 M.J. 61,
62 (C.M.A. 1987)). “A military judge abuses his discretion when: (1) the find-
ings of fact upon which he predicates his ruling are not supported by the evi-
dence of record; (2) if incorrect legal principles were used; or (3) if his applica-
tion of the correct legal principles to the facts is clearly unreasonable.” United
States v. Ellis, 68 M.J. 341, 344 (C.A.A.F. 2010) (citing United States v. Mack-
ie, 66 M.J. 198, 199 (C.A.A.F. 2008)).
    In 2013, Congress enacted Article 6b, UCMJ, pursuant to the National
Defense Authorization Act (NDAA) for Fiscal Year 2014. Pub. L. No. 113–66,
§ 1701, 127 Stat. 672 (2013) (codified as 10 U.S.C. § 806b). Article 6b, UCMJ,
incorporated additional rights of crime victims in presentencing provided in
the Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771, with an effective
date of 26 December 2013. Article 6b generally mirrors the rights afforded to
victims in civilian criminal trials under the CVRA and establishes that a vic-
tim has “[t]he right to be reasonably heard . . . at [a] sentencing hearing re-
lated to the offense.” 10 U.S.C. § 806b(a)(4)(B). The article provides no fur-
ther guidance on the manner in which a victim could exercise that right and
does not address the victim’s right to be heard at presentencing in terms of
presenting victim impact.
   On 17 June 2015, after the date of Appellant’s trial, the President prom-
ulgated R.C.M. 1001A, providing guidance on how to implement Article
6b(a)(4)(B), and expressly permitting a victim to make an unsworn statement
orally, in writing, or both. See R.C.M. 1001A(e).
   2. Analysis
    Appellant acknowledges that Article 6b, UCMJ, was enacted prior to Ap-
pellant’s original trial in April 2014. However, Appellant erroneously asserts
that the plain language of the NDAA, § 1701, specifies that Article 6b did not
become effective until the President promulgated R.C.M. 1001A in July 2015,
more than a year after Appellant’s original trial. Appellant argues that be-
cause Article 6b was not in effect at the time of Appellant’s original trial, the


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                United States v. LaSalle, No. ACM 38831 (reh)


military judge abused his discretion by considering A1C MR’s unsworn
statement because it would not have been authorized at Appellant’s original
trial. We are not persuaded.
   As noted above, Section 1701 of the NDAA was effective on 26 December
2013, prior to Appellant’s original trial. “While it is true that R.C.M. 1001A
was not in existence at the time of trial, a victim’s right to be heard at sen-
tencing pursuant to Article 6b was.” United States v. Turpiano, No. ACM
38873, 2018 CCA LEXIS 276, at *51 (A.F. Ct. Crim. App. 24 May 2018) (un-
pub. op.) Moreover, at the time of Appellant’s rehearing on sentence, R.C.M.
1001A was in effect.
    In overruling the trial defense counsel’s objection at the rehearing, the
military judge cited both the CVRA and Article 6b as providing victims a
right to be “reasonably heard” at sentencing, and he noted that federal courts
have interpreted this phrase to mean allowing an unsworn victim impact
statement in sentencing. The military judge also noted that this court had
addressed this exact issue in Rowe and Parr, finding that an unsworn victim
impact statement was a permissible means for a victim to be “reasonably
heard” in court-martials occurring between the effective date of Article 6b
and the promulgation of R.C.M. 1001A. As a result, we find the military
judge did not abuse his discretion by considering A1C MR’s written unsworn
statement. 4
B. Post-Trial Delay
    1. Additional Background
   As noted above, Appellant’s original trial concluded on 3 April 2014. On
20 May 2014, the record of trial (ROT) was sent to the military judge for au-
thentication. The military judge then discovered an error in the announce-
ment of sentence and ordered a post-trial session pursuant to Article 39a,
UCMJ, 10 U.S.C. § 839a. The post-trial Article 39a session was held on 24
November 2014, following a series of delays detailed in a Post-Trial Chronol-
ogy Memorandum dated 17 April 2015 which was included in the original
ROT. Following the authentication of the ROT, including the transcript of the
post-trial Article 39a session, on 9 January 2015 the court reporter from
Sheppard AFB, Texas, discovered an error in the marking of exhibits during
the post-trial session. As a result, the convening authority ordered a second

4 We would reach the same conclusion that the military judge did not abuse his dis-
cretion if we assumed, arguendo, that the military judge was required to follow the
same procedural requirements at the rehearing on sentence as were required during
Appellant’s original trial.




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                United States v. LaSalle, No. ACM 38831 (reh)


post-trial Article 39a session. After a series of scheduling delays—again de-
tailed in the Post-Trial Chronology Memorandum—the second post-trial ses-
sion was held on 26 March 2015.
   The convening authority’s staff judge advocate (SJA) signed the SJA rec-
ommendation (SJAR) on 28 April 2015. Appellant submitted his clemency
matters for consideration by the convening authority on 28 May 2015. The
convening authority took action on 5 June 2015, 428 days after the an-
nouncement of sentence in Appellant’s original trial.

    As he did in his original appeal, Appellant asks this court to grant him
sentence relief for unreasonable post-trial processing delay between the an-
nouncement of his original sentence on 3 April 2014 and initial action by the
convening authority on 5 June 2015. Even though a total of 428 days elapsed,
Appellant specifically asserts that he is only claiming that a total of 390 days
constituted “unreasonable” post-trial processing delay, which comprised the
period from 3 April 2014 until 28 April 2015, the date of the SJAR. Appel-
lant’s stated reason for only claiming unreasonable delay for this reduced pe-
riod of time is his concession that “a substantial portion” of the delay between
the date of the SJAR and the date of the action was attributable to himself.
Appellant makes no claim that he suffered any prejudice as a result of the
delay, but asks for a total of 270 days of credit against his sentence to con-
finement for unreasonable post-trial delay. 5
    2. Law
    Whether an appellant has been deprived of his due process right to
speedy appellate review, and whether constitutional error is harmless beyond
a reasonable doubt, are questions of law we review de novo. United States v.
Arriaga, 70 M.J. 51, 55–56 (C.A.A.F. 2011) (citing United States v. Moreno, 63
M.J. 129, 135 (C.A.A.F. 2006)).
    When the convening authority does not take action within 120 days of the
completion of trial, the delay is presumptively unreasonable. Moreno, 63 M.J.
at 142. If there is a Moreno-based presumption of unreasonable delay or an
otherwise facially-unreasonable delay, we examine the claim under the four
factors set forth in Barker v. Wingo, 407 U.S. 514, 530 (1972): “(1) the 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.” Moreno, 63 M.J. at 135

5 Appellant calculated the 270-day confinement credit request by subtracting the
“120-day metric” stated in Moreno from the 390 days of delay between announcement
of sentence until the date of the SJAR, the date relied upon by Appellant to end the
period of “unreasonable delay.”




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                 United States v. LaSalle, No. ACM 38831 (reh)


(citations omitted). Moreno identified three types of prejudice arising from
post-trial processing delay: (1) oppressive incarceration; (2) anxiety and con-
cern; and (3) impairment of ability to present a defense at a rehearing. Id. at
138–39 (citations omitted).
    “We analyze each factor and make a determination as to whether that
factor favors the Government or [Appellant].” Id. at 136 (citation omitted).
Then, we balance our analysis of the factors to determine whether a due pro-
cess violation occurred. Id. (citing Barker, 407 U.S. at 533 (“Courts must still
engage in a difficult and sensitive balancing process.”)). “No single factor is
required for finding a due process violation and the absence of a given factor
will not prevent such a finding.” Id. (citation omitted). However, where an
appellant has not shown prejudice from the delay, there is no due process vio-
lation unless the delay is so egregious as to “adversely affect the public’s per-
ception of the fairness and integrity of the military justice system.” United
States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006).
   Recognizing our authority under Article 66(c), UCMJ, 10 U.S.C. § 866(c),
we also consider whether relief for excessive post-trial delay is appropriate
even in the absence of a due process violation. See United States v. Tardif, 57
M.J. 219, 221, 225 (C.A.A.F. 2002).
   3. Analysis
    Whether 390 days or 428 days, the delay between the conclusion of Appel-
lant’s trial and the convening authority’s action clearly exceeded the 120-day
standard for presumptively unreasonable delay established in Moreno. There-
fore, we consider the four Barker factors, beginning with the length of the de-
lay itself. In this case, the delay substantially exceeded the Moreno standard.
The Government concedes this factor weighs in Appellant’s favor and we con-
cur.
    The Government asserts that the second factor, the reasons for the delay,
weigh in its favor. The Government contends that a substantial portion of the
delay, even prior to the date of the SJAR, was attributable to Appellant and
his civilian defense counsel’s admitted unavailability prior to the first post-
trial 39a session. However, Appellant asserts:
       In short, the entirety of the delay can be explained by three key
       events: (1) the Military Judge made an error in announcing
       findings; (2) the Military Judge made an error in conducting
       [Appellant’s] providence inquiry; and (3) the Government made
       an error in marking the exhibits, and thereafter insisted on an
       additional (second) Article 39a session, over objection by both
       the Military Judge and trial defense counsel. To be sure, there
       were numerous intervening issues that arose that contributed


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                United States v. LaSalle, No. ACM 38831 (reh)


       to the overall delay (i.e., attorney availability, judge availabil-
       ity, witness availability, courtroom and court-reporter availa-
       bility, technology issues, etc.); but if the three errors referenced
       above had not been made then the 390 days of delay referenced
       above would have been significantly reduced, if not avoided en-
       tirely.
    We agree with the Government that significant periods of delay were at-
tributable to Appellant and that the Post-Trial Chronology Memorandum,
dated 17 April 2015, evidences the Government’s efforts and intentions to dil-
igently accomplish the post-trial processing of Appellant’s case and ensure
the ROT was accurate. However, on balance, we find that this factor also
weighs slightly in favor of Appellant.
    The Government concedes the third factor, Appellant’s assertion of his
right to timely review, also weighs in Appellant’s favor and we agree. At the
second post-trial Article 39a session, Appellant indicated a desire for speedy
appellate processing. It still took approximately 147 more days for Appel-
lant’s case to reach initial convening authority action.
    As to the fourth and final factor, Appellant has not claimed any prejudice
as a result of the presumptively unreasonable post-trial delay and we find
none in this case. We also find that this factor weighs against Appellant. The
United States Court of Appeals for the Armed Forces (CAAF) has held that
“where there is no finding of Barker prejudice, we will find a due process vio-
lation only when, in balancing the other three factors, the delay is so egre-
gious 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.
In this case, the prejudice analysis is determinative.
    Because Appellant fails to demonstrate prejudice, and we find the remain-
ing factors are not so egregious—despite the lengthy period of time between
the announcement of sentence and initial action of the convening authority—
as to impugn the fairness and integrity of the military justice system, we find
no violation of Appellant’s rights under Moreno. Recognizing our authority
under Article 66(c), UCMJ, we have also considered whether relief for exces-
sive post-trial delay is appropriate in this case even in the absence of a due
process violation. See Tardif, 57 M.J. at 225. After considering the factors
enumerated in United States v. Gay, 74 M.J. 736, 744 (A.F. Ct. Crim. App.




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                  United States v. LaSalle, No. ACM 38831 (reh)


2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016), we conclude that such an exercise of
our authority is not appropriate in this case. 6
C. Convening Authority Action
    Appellant also asserts that the action of the convening authority is in-
complete and erroneous because it failed to include the period of 328 days of
pretrial confinement credit awarded by the military judge at the rehearing
pursuant to United States v. Allen, 17 M.J. 126 (C.M.A. 1984). This 328 days
encompassed the period of time Appellant remained in confinement between
the date of our previous decision in this case on 23 November 2016 and the
date of the announcement of sentence at the rehearing on 18 October 2016.
Despite the lack of any statutory or regulatory requirement to include pretri-
al confinement credit awarded pursuant to Allen in the convening authority’s
action, the Government concedes that the action should be corrected to reflect
the total adjudged confinement credit. Under the particular and unique facts
of this case, we agree.
    The action of the convening authority states, in pertinent part:
        [Appellant] will be credited with any portion of the punishment
        served from 3 April 2014 to 23 November 2016, under the sen-
        tence adjudged at the former trial in this case. [Appellant] will
        be credited with 165 days for illegal pretrial confinement [cred-
        it] against the sentence to confinement and an additional twen-
        ty days of Earned Time Credit.
    In his advice to the convening authority, the SJA noted that the military
judge awarded Appellant 328 days for pretrial confinement credit pursuant to
Allen and correctly advised the convening authority that Appellant was to be
credited with a total of 165 days of illegal pretrial confinement credit award-
ed by the military judge. However, the Report of Result of Trial incorrectly


6 These factors include: (1) how long the delay exceeded the standards set forth in
Moreno; (2) what reasons, if any, the Government set forth for the delay, and wheth-
er there is any evidence of bad faith or gross indifference to the overall post-trial pro-
cessing of this case; (3) whether there is evidence of harm to the appellant or institu-
tionally caused by the delay; (4) whether the delay has lessened the disciplinary ef-
fect of any particular aspect of the sentence, and whether relief is consistent with the
dual goals of justice and good order and discipline; (5) whether there is any evidence
of institutional neglect concerning timely post-trial processing; and (6) given the pas-
sage of time, whether this court can provide meaningful relief in this particular situ-
ation.




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                 United States v. LaSalle, No. ACM 38831 (reh)


stated the amount of pretrial confinement credit to which Appellant was to be
credited as 479 days, which was apparently calculated by adding the 328
days of pretrial confinement credit to the erroneous amount of 151 days of
illegal pretrial confinement credit. In summary, the military judge granted
Appellant 965 days confinement credit for the period from 3 April 2014 until
23 November 2016, 328 days of Allen credit, and 165 days of credit for illegal
pretrial confinement. The convening authority granted Appellant an addi-
tional 20 days of Earned Time Credit.
    The amount of total confinement credit Appellant was awarded by the
military judge and the convening authority equaled 1,478 days. In the action,
the convening authority acknowledged Appellant’s credit for time spent in
confinement from the date of Appellant’s original sentence until the date of
our original opinion in this case. In accordance with R.C.M. 1107(f)(4)(F), the
convening authority is required to state in the action the amount of illegal
pretrial confinement credit awarded. As noted above, the convening authori-
ty’s action correctly states that Appellant was awarded 165 days illegal pre-
trial confinement credit by the military judge. In addition, the action states
that the convening authority awarded Appellant 20 additional days of Earned
Time Credit against his sentence to confinement. However, even though not
required, the omission of the 328 days of Allen credit from the action in this
case, coupled with the error in the Report of Result of Trial, creates an action
that is misleading and could result in the erroneous conclusion that Appel-
lant is only entitled to 1150 days, instead of 1478 days, of credit against his
sentence to confinement. Therefore, under these unique circumstances, we
return the record for corrected action to include the 328 days of pretrial con-
finement credit awarded pursuant to Allen.

                                    III. CONCLUSION
    The approved findings were previously affirmed. The approved sentence
is correct in law and fact, and no error materially prejudicial to the substan-
tial rights of Appellant occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§
859(a), 866(c) (2016). We return the record of trial to The Judge Advocate
General for remand to the convening authority to withdraw the recent action
and substitute a corrected action. Further, we order the promulgation of a
corrected court-martial order reflecting the correct action. 7 The case need not


7 In addition, the SJA’s advice to the convening authority erroneously stated the sen-
tence adjudged by the court-martial. However, the court-martial order stated the cor-
rect sentence. Also, the court-martial order incorrectly listed “specifications” instead
of “specification” in the introductory paragraph of the order. In view of our returning
(Footnote continues on next page)


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                 United States v. LaSalle, No. ACM 38831 (reh)


be returned to us for further review. Accordingly, the approved sentence is
AFFIRMED.


                       FOR THE COURT



                       CAROL K. JOYCE
                       Clerk of the Court




this case for corrected action, we trust that this error in the court-martial order will
also be corrected.




                                          11
