          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                       Airman First Class MATTHEW B. ALBRIGHT
                                  United States Air Force

                                           ACM 37961 (rem)

                                              15 April 2015

         Sentence adjudged 23 March 2011 by GCM convened at RAF Lakenheath,
         United Kingdom. Military Judge: Jefferson B. Brown (sitting alone).

         Approved Sentence: Dishonorable discharge, confinement for 4 years,
         forfeiture of all pay and allowances, and reduction to E-1.

         Appellate Counsel for the Appellant:                 Major Jeffrey A. Davis and
         Major Daniel E. Schoeni.

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

                                                  Before

                                ALLRED, MITCHELL, and WEBER
                                    Appellate Military Judges

                                     OPINION OF THE COURT
                                         UPON REMAND

          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
                              under AFCCA Rule of Practice and Procedure 18.4.



PER CURIUM:

       A general court-martial composed of a military judge alone convicted the
appellant, in accordance with his pleas, of dereliction of duty and receiving and
possessing child pornography, in violation of Articles 92 and 134, UCMJ, 10 U.S.C.
§§ 892, 934. The military judge also convicted him, contrary to his pleas, of one
specification each of making a false official statement, indecent acts, and wrongful sexual
contact; as well as two specifications of unlawful entry, in violation of Articles 107, 120,
and 134, UCMJ, 10 U.S.C. §§ 907, 920, 934. The military judge acquitted the appellant
of one specification alleging indecent acts, two specifications alleging wrongful sexual
contact, and one charge and one specification alleging possession of child pornography.
The court sentenced the appellant to a dishonorable discharge, confinement for 4 years,
forfeiture of all pay and allowances, and reduction to E-1. The convening authority
approved the sentence as adjudged.

                                             Procedural History

       On 25 January 2013, The Judge Advocate General of the Air Force appointed
Mr. Laurence M. Soybel to the position of appellate military judge on the Air Force
Court of Criminal Appeals pursuant to Article 66(a), UCMJ, 10 U.S.C. § 866(a). At the
time of this appointment, Mr. Soybel, a retired Air Force officer and former appellate
military judge, was serving as a civilian litigation attorney in the Department of the
Air Force. 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 argued that two
specifications alleging unlawful entry failed to state an offense because neither—
expressly or by necessary implication—alleged the terminal elements required for an
Article 134, UCMJ, offense.1 We agreed.

       On 28 March 2013, we issued a decision in which we set aside and dismissed two
specifications of Charge IV (each alleging unlawful entry), affirmed the remaining
findings, and affirmed the sentence. United States v. Albright, ACM 37961 (A.F. Ct.
Crim. App. 28 March 2013) (unpub. op.). Mr. Soybel was a member of the panel that
decided the case. Following Mr. Soybel’s appointment by the Secretary of Defense on
25 June 2013, we reconsidered our decision sua sponte and on 6 August 2013 issued a
new opinion upon reconsideration in which we corrected our previous decision and set
aside and dismissed Specifications 3 and 4 of Charge IV (unlawful entry). United States
v. Albright, ACM 37961 (recon) (A.F. Ct. Crim. App. 6 August 2013) (unpub. op.).

       On 2 January 2014, our superior court granted the appellant’s petition for review
to determine whether Mr. Soybel had been properly appointed. United States v. Albright,
73 M.J. 193 No. 13-0531/AF (Daily Journal 2 January 2014). On 27 June 2014, our
1
 The appellant also raised an issue regarding the completeness of the record of trial because a computer disk labeled
as Appellate Exhibit XI failed to open. A court paralegal successfully opened the disk, both sides had an
opportunity to review it, and both sides agreed that the issue was moot.


                                                         2                                        ACM 37961 (rem)
superior court issued its decision in this case, United States v. Albright, 73 M.J. 422
(C.A.A.F. 2014), holding that, in light of United States v. Janssen, 73 M.J. 221, 225
(C.A.A.F. 2014), the Secretary of Defense did not have the legislative authority to
appoint appellate military judges and that his appointment of Mr. Soybel to this court was
“invalid and of no effect.” Our superior court reversed our decision in this case and
remanded it to us for further review under Article 66, UCMJ.

       In light of this ruling by our superior court, we have reviewed the appellant’s case.
Our review includes the appellant’s previous filings and the previous opinions issued by
this court, as well as a supplemental assignment of errors in which the appellant asserts
he is entitled to relief due to excessive post-trial processing delays. Finding error, we
dismiss Specifications 3 and 4 of Charge IV (unlawful entry), affirm the remaining
findings, and affirm the sentence.

              Article 134, UCMJ, Specifications and the Terminal Element

       Whether a charged specification states an offense is a question of law we review
de novo. United States v. Crafter, 64 M.J. 209, 211 (C.A.A.F. 2006). “A specification
states an offense if it alleges, either expressly or by [necessary] implication, every
element of the offense, so as to give the accused notice and protection against double
jeopardy.” Id. (citing United States v. Dear, 40 M.J. 196, 197 (C.M.A. 1994)); see also
Rule for Courts-Martial 307(c)(3).

       In the case of a litigated Article 134, UCMJ, specification that does not allege the
terminal element but which was not challenged at trial, the failure to allege the terminal
element is reviewed for plain and obvious error, an issue which is forfeited rather than
waived by failure to object at trial. The remedy, if any, depends on “whether the
defective specification resulted in material prejudice to [the appellant]’s substantial right
to notice.” United States v. Humphries, 71 M.J. 209, 215 (C.A.A.F. 2012). The
prejudice analysis of a defective specification under plain error requires a close review of
the record. Indeed, we must be:

                     Mindful that in the plain error context the defective
              specification alone is insufficient to constitute substantial
              prejudice to a material right, we look to the record to
              determine whether notice of the missing element is
              somewhere extant in the trial record, or whether the element
              is essentially uncontroverted.

Id. at 215–16 (citations omitted) (internal quotation marks omitted); see also United
States v. Gaskins, 72 M.J. 225, 233 (C.A.A.F. 2013) (rejecting the Government’s
contention that an accused is not prejudiced by the failure to allege the terminal element
because the predicate acts were “intuitively” prejudicial).


                                              3                               ACM 37961 (rem)
        In accordance with Humphries, we are compelled to disapprove the findings of
guilty to Specifications 3 and 4 of Charge IV, both alleging unlawful entry in violation of
Article 134, UCMJ. Neither specification alleges a terminal element nor did either side
mention the terminal elements during the trial. We find nothing in the record to
satisfactorily establish notice of the need to defend against the terminal elements, and
there is no indication the evidence was uncontroverted as to the terminal elements.2
Although the appellant pled guilty to two other unrelated Article 134, UCMJ, offenses,
the advice on the terminal elements of those offenses is insufficient to provide notice on
the litigated specifications. Cf. United States v. Ballan, 71 M.J. 28, 34–36 (C.A.A.F.
2012), cert. denied, 133 S. Ct. 43 (2012) (mem.) (failing to allege the terminal element of
an Article 134, UCMJ, offense is error, in the context of a guilty plea; the error is not
prejudicial when the military judge correctly advises the appellant of all the elements, and
the plea inquiry shows that the appellant understood which offense and under what legal
theory he was pleading guilty).

       On consideration of the entire record, and pursuant to Humphries, the findings of
guilty to Specifications 3 and 4 of Charge IV are set aside and dismissed. Reassessing
the sentence on the basis of the error noted, the entire record, and in accordance with the
factors outlined in United States v. Winckelmann, 73 M.J. 11 (C.A.A.F. 2013), this court
finds that the sentence, as approved by the convening authority, is appropriate for the
remaining offenses.3

                                    Appellate Review Time Standards

       The appellant argues, citing United States v. Moreno, 63 M.J. 129, 135 (C.A.A.F.
2006), that the unreasonable post-trial delay from the date the case was docketed with
this court in July 2011 until this opinion warrants relief. The appellant further cites to
United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002), noting this court’s responsibility to
affirm only those findings and sentence that should be approved.



2
  The Government argued Judge Stucky’s dissenting view that the Article 32, UCMJ, 10 U.S.C. § 832, hearing
provided fair and accurate notice of the terminal element. See United States v. Humphries, 71 M.J. 209, 222
(C.A.A.F. 2012) (Stucky, J., dissenting). Our superior court has since stated that in determining whether notice of
the missing element is somewhere extant in the record or essentially uncontroverted, we are limited to considering
“evidence contained in the trial record.” United States v. Tunstall, 72 M.J. 191, 197 (C.A.A.F. 2013).
3
  The facts and circumstances surrounding the dismissed specifications were properly before the court as res gestae
of the charged Article 120, UCMJ, 10 U.S.C. § 920, offenses. Dismissing the two unlawful entry specifications
does not substantially change the penalty landscape; the two unlawful entry specifications carried a combined
maximum confinement of 1 year, so their dismissal reduces the maximum imposable confinement from 42 years and
6 months to 41 years and 6 months. The appellant also chose sentencing by a military judge alone, the remaining
offenses capture the gravamen of criminal conduct included within the original offenses, and we are experienced and
familiar with the type of remaining offenses. Under the facts of this case, we are confident that the military judge
would have imposed the same sentence.


                                                         4                                       ACM 37961 (rem)
       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). A
presumption of unreasonable delay arises when appellate review is not completed and a
decision is not rendered within 18 months of docketing the case before this court.
Moreno, 63 M.J. at 142. The Moreno standards continue to apply as a case continues
through the appellate process; however, 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. United States v. Mackie, 72 M.J. 135–36
(C.A.A.F. 2013); see also United States v. Roach, 69 M.J. 17, 22 (C.A.A.F. 2010).

       If the Moreno standards are violated, the delay is presumptively unreasonable and
triggers an analysis of the four factors elucidated in Barker v. Wingo, 407 U.S. 514
(1972), and Moreno. See United States v. Arriaga, 70 M.J. 51, 55 (C.A.A.F. 2011).
Those factors are “(1) the length of the delay; (2) the reasons for the delay; (3) whether
the appellant made a demand for a speedy trial; and (4) prejudice to the appellant.”
United States v. Mizgala, 61 M.J. 122, 129 (C.A.A.F. 2005); see also Barker, 507 U.S. at
530; United States v. Morita, 73 M.J. 548, 567 (A.F. Ct. Crim. App. 2013).

       The time between docketing with this court and our initial decision was facially
unreasonable, triggering the Barker factors. However, the time between our superior
court’s remand in June 2014 and this decision is well within the 18-month period and is
therefore not facially unreasonable. While the appellant cites the sum of all periods of
appellate review as reason to grant relief, the only time period that exceeded the Moreno
standards was the period leading up to this court’s first decision in this matter.

       When we assume error but are able to directly conclude that any error was
harmless beyond a reasonable doubt, we do not need to engage in a separate analysis of
each factor. See Allison, 63 M.J. at 370. This approach is appropriate in the appellant’s
case. The post-trial record contains no evidence that the delay has had any negative
impact on the appellant. Even the “stress and anxiety” argued by the appellant is minimal
in its impact and no more than any other appellant waiting appellate review. We
recognize that our decision today grants the appellant some relief by setting aside and
dismissing two specifications, but we grant no sentence relief and there is no reason to
believe the appellant was prejudiced in any way by waiting for this relief.

        Furthermore, 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 not to be so egregious as to adversely affect the public’s perception of fairness and


                                             5                               ACM 37961 (rem)
integrity of the military justice system. We are convinced the error is harmless beyond a
reasonable doubt.

      Lastly, even assuming the total appellate processing of this case raises a
presumption of unreasonable delay, we again conclude the delay was harmless under the
Barker and Toohey analyses.

        Additionally, Article 66(c), UCMJ, empowers appellate courts to grant sentence
relief for excessive post-trial delay without the showing of actual prejudice required by
Article 59(a), UCMJ, 10 U.S.C. § 859(a). Tardif, 57 M.J. at 224; see also United States
v. Harvey, 64 M.J. 13, 24 (C.A.A.F. 2006). In United States v. 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 evidence of bad faith or gross negligence in the post-trial process. Id. at 607. Even
analyzing the entire period from the time the case was first docketed until today, we find
there was no bad faith or gross negligence in the post-trial processing. The record of trial
is 7 volumes to include a 1,000 page transcript and 52 appellate exhibits. The reason for
the delay after our initial decision was to allow this court and our superior court to fully
consider a constitutional issue of first impression about whether the Secretary of Defense
has the authority under the Appointments Clause4 to appoint civilian employees to the
service courts of criminal appeals. See Janssen, 73 M.J. at 221. The impact of any delay
was mitigated when we specifically allowed the appellant to file a supplemental
assignment of error. We conclude that sentence relief under Article 66, UCMJ, is not
warranted.

                                         Conclusion

       The findings of guilty of Specifications 3 and 4 of Charge IV are set aside, and
those specifications are dismissed. The remaining findings and the sentence, as
reassessed, is correct in law and fact, and no error materially prejudicial to the substantial
rights of the appellant remains. Articles 59(a) and 66(c), UCMJ.




4
    U.S. CONST. art. II, § 2, cl. 2.


                                              6                               ACM 37961 (rem)
Accordingly, the remaining findings and the sentence, as reassessed, are AFFIRMED.



             FOR THE COURT


             STEVEN LUCAS
             Clerk of the Court




                                         7                             ACM 37961 (rem)
