          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                        UNITED STATES

                                                    v.

                            Senior Airman DAVID J. JANSSEN
                                  United States Air Force

                                         ACM 37681 (rem)

                                         9 September 2014

         Sentence adjudged 13 December 2009 by GCM convened at Malmstrom
         Air Force Base, Montana. Military Judge: Don M. Christensen.

         Approved sentence: Bad-conduct discharge, confinement for 9 years, and
         reduction to E-1.

         Appellate Counsel for the Appellant: Lieutenant Colonel Gail E. Crawford;
         Major Christopher D. James; Major Michael S. Kerr; Major Daniel E.
         Schoeni; Captain Jeffrey A. Davis; and Dwight H. Sullivan, Esquire.

         Appellate Counsel for the United States: Lieutenant Colonel Linell A.
         Letendre; Major Daniel J. Breen; Major Deanna Daly; Major Scott C.
         Jansen; Major Tyson D. Kindness; Major Naomi N. Porterfield; and Gerald
         R. Bruce, Esquire.

                                                 Before

                             ALLRED, MITCHELL, and WEBER
                                 Appellate Military Judges

                                   OPINION OF THE COURT
                                       UPON REMAND

                   This opinion is subject to editorial correction before final release.



PER CURIAM:

      Contrary to his pleas, the appellant was convicted by a general court-martial
composed of officer members of one specification of violating the order of a superior
noncommissioned officer; one specification of rape; two specifications of assault
consummated by a battery; one specification of obstruction of justice; and one


                                                    1                                      ACM 37681 (rem)
specification of breaking restriction, in violation of Articles 91, 120, 128, and 134,
UCMJ, 10 U.S.C. §§ 891, 920, 928, 934.1 The members sentenced the appellant to a
bad-conduct discharge, confinement for 12 years and 8 months, forfeiture of $1,300.00
pay per month for 12 years, and reduction to E-1. On 21 June 2010, the convening
authority approved only so much of the sentence that called for a bad-conduct discharge,
confinement for 9 years, and reduction to E-1.

                                            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).

       The case was initially docketed with this Court on 24 June 2010. The appellant
filed his assignment of errors on 19 January 2011 and a supplemental assignment of
errors on 23 March 2011. On 20 July 2011, this Court granted the appellant’s motion to
return the case to the convening authority for the preparation of a substantially verbatim
record of trial. A new transcript was prepared, and the convening authority issued a new
action in this case on 2 April 2012. Consistent with the original action, the new action
approved only so much of the sentence as called for a bad-conduct discharge,
confinement for 9 years, and reduction to E-1.

       Initially, the appellant raised five issues, asserting: (1) the evidence is factually
insufficient to support his conviction for rape; (2) the evidence is factually and legally
insufficient to support his conviction for breaking restriction; (3) Specifications 3 and 4
of Charge IV fail to state offenses; (4) the sentence is inappropriately severe because of
unreasonable post-trial delay; and (5) trial defense counsel provided ineffective assistance
of counsel.2

       On 9 May 2013, we issued a decision in which we set aside and dismissed
Specifications 3 and 4 of Charge IV (obstructing justice and breaking restriction,
respectively), affirmed the remaining findings, and affirmed the sentence. United States
1
  The appellant was acquitted of one specification of communicating a threat and one specification of obstructing
justice, alleged in violation of Article 134, UCMJ, 10 U.S.C. § 934.
2
  The first and final issues were raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).


                                                       2                                      ACM 37681 (rem)
v. Janssen, ACM 37681 (f rev) (A.F. Ct. Crim. App. 9 May 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 the decision
sua sponte and on 22 July 2013 issued a new opinion upon reconsideration, reaching the
same conclusion as the previous opinion. United States v. Janssen, ACM 37681 (recon)
(A.F. Ct. Crim. App. 22 July 2013) (unpub. op.).

        On 19 December 2013, our superior court granted the appellant’s petition for
review to determine whether Mr. Soybel had been properly appointed. United States v.
Janssen, 73 M.J. 136 No. 14-0130/AF (Daily Journal 19 December 2013). On
15 April 2014, our superior court issued its decision in this case, United States v. Janssen,
73 M.J. 221, 225 (C.A.A.F. 2014), holding that 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,
10 U.S.C. § 866.

       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 wherein the appellant asserts:
(1) he is entitled to relief due to excessive post-trial processing delays, and (2) the
military judge erred by denying the defense motion to dismiss charges due to unlawful
command influence (UCI).3 Finding error, we dismiss Specifications 3 and 4 of
Charge IV (obstructing justice and breaking restriction, respectively), affirm the
remaining findings, and affirm the sentence.

                                                        Background

       In January 2009, the victim, Ms. BS, moved to Great Falls, Montana, to be with
the appellant. BS and the appellant had previously dated when they both lived in
Minnesota. They broke up, reunited on Facebook in 2007, and by January 2009 they
were living together in a relationship that involved sex once or twice a day. BS described
the beginning of their relationship as “very sweet,” but it later turned “very rocky” as the
appellant became, in her words, “very controlling.” BS also testified that they had many
arguments, and she had, on occasion, tried to leave the appellant after some of their
arguments, but often the appellant would stop her by taking her keys, phone, or her
clothes out of her bag. Additionally, she stated they often would engage in “make-up”
sex after an argument.

      One of those arguments occurred on 15 February 2009. BS testified that she knew
that morning “it was going to be a day of walking on eggshells” because the appellant

3
    This issue was also raised pursuant to Grostefon.


                                                            3                 ACM 37681 (rem)
had started talking to her in a loud voice. She went shopping for some diapers for her son
and the appellant’s daughter. While shopping, BS had an angry phone conversation with
her father, which led to a telephonic argument with the appellant that continued when she
returned home. When she got home, BS tried to check on her son, but the appellant
prevented her from doing so by barricading the kitchen area with some chairs. As their
argument continued, the appellant pushed BS into the bedroom. BS testified that she
struggled, trying to get away through the bedroom window and door, but the appellant
used some “wrestling techniques” to pin her to the bed.

        At some point, the appellant let BS sit on the edge of the bed, but he would not let
her leave the bedroom. She testified that the appellant began to shove her hard enough to
nearly knock her off the bed. The appellant than pulled her back onto the bed and began
to kiss her, but BS resisted by clenching her teeth. BS then testified as follows:

         [H]e had lift[ed] my shirt up and he . . . kiss[ed] on my neck and he had
         lifted my shirt up and started kissing on my breasts and then . . . he started
         to take off my pants and I told him no and he didn’t say anything. And I
         said no again and he said, “What does no mean? No like you don’t want to
         or no like please don’t stop.” And I said, “No, I don’t want to.” And as
         that conversation happened, he continued and at that point . . . in my mind
         I was thinking, “Shut the door, shut the door, shut the door.” 4 And I
         remember him straddling on top of me and I was trying to thrust him off
         with my hips, trying to push him off with my hands on his shoulders.

BS further stated that she could not push the appellant off her because he was too strong.
The appellant penetrated her vagina with his penis, and, after having sex with her, “[h]e
just finished, got up, and walked into the kitchen.” As BS was putting on her pants, the
appellant came back into the room. She grabbed a nearby pen and threatened to stab the
appellant. A scuffle ensued, and the appellant buckled her hands using a belt and later
tied her wrists with a rope. When the appellant left the room to check on BS’s son, she
broke free and ran out of the bedroom. Once she got out of the house, she called 911.

      Local law enforcement officers arrived on the scene and arrested the appellant.
After being advised of his rights, the appellant admitted to engaging in a verbal and
physical assault with BS:

         [P]robably towards the beginning . . . we were arguing a little bit, she had
         her hand on the door, [and] I was trying to . . . figure out what was going
         on[. She was] trying to get out the window out of the room and then she

4
  BS testified this was a dissociative technique she used to cope with traumatic situations. It allowed her to escape a
traumatic experience in her mind while still perceiving the event as it occurred: “the connection between the event
and [her] emotions and everything else is separate.” She testified she learned this technique from another situation
that had nothing to do with the appellant.


                                                          4                                        ACM 37681 (rem)
       was just sitting on the bed [in the bedroom], and I just went and sat next to
       her. She wasn’t saying anything; she was just sitting there, and I tried to
       get her calm. I went and sat next to her and I was like what’s wrong? I put
       my arm around her and I was kissing her and she was kissing back and she
       helped me lift her shirt up, you know, that’s not like she was really
       struggling, and then . . . I guess, she wasn’t really doing anything she was
       just kind of laying there and like I said she pulled her shirt up, she lifted her
       legs up, she didn’t really push me away. So I guess I wasn’t really sure
       what was going on and I told her . . . “You know you can say no” and she
       said, “No” and I said, “No, what” she said, “No, I don’t want to” and I said,
       “Don’t want to say no or don’t want to have sex” and she didn’t say
       anything, and . . . I was already into it and that was it.

When asked if BS enjoyed the sex, the appellant stated “[S]he was just kind of laying
there.” When asked what this meant, the appellant explained:

       [O]ne time she grabbed my legs and I -- I mean she wasn’t just totally like
       -- she wasn’t like sleeping or a dead person would be or anything, but no it
       wasn’t like normal sex, and that’s why I said that and maybe I should have
       stopped then, but I guess I didn’t think. You know, I figured if she didn’t
       want to she would have said no -- pushed me away . . . or made it clear
       especially when I asked her “Do you mean no you don’t want to have sex
       or no you don’t want to say no” and she didn’t say anything.

       When detectives challenged his story, the appellant admitted that having sex with
BS at that time “probably wasn’t a smart decision.”

                        Factual Sufficiency of the Rape Conviction

        The appellant first argues that the evidence is factually insufficient to support his
conviction for rape. Specifically, the appellant argues that the Government bore the
burden of proving beyond a reasonable doubt that mistake of fact as to consent did not
exist in this case and failed to do so. The appellant asserts that we must, therefore, set
aside his rape conviction.

       We review issues of factual and legal sufficiency de novo. Article 66(c), UCMJ;
United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The test for factual
sufficiency is “whether, after weighing the evidence in the record of trial and making
allowances for not having personally observed the witnesses, [we are] convinced of the
accused’s guilt beyond a reasonable doubt.” United States v. Turner, 25 M.J. 324, 325
(C.M.A. 1987). In conducting this unique appellate role, we take “a fresh, impartial look
at the evidence,” applying “neither a presumption of innocence nor a presumption of
guilt” to “make [our] own independent determination as to whether the evidence


                                              5                                 ACM 37681 (rem)
constitutes proof of each required element beyond a reasonable doubt.” Washington,
57 M.J. at 399.

       The evidence is legally sufficient to support the appellant’s conviction for rape.
As discussed supra, BS and the appellant had a telephonic argument while BS was
shopping that continued once she returned home. The appellant kept BS from accessing
her son by barricading the kitchen. The appellant pushed BS into the bedroom, where
she tried to escape through the window before being stopped by the appellant. After
being pushed and shoved, BS eventually sat on the bed with the appellant as he tried to
kiss her. BS tried to resist the appellant’s advances but found him too persistent. BS told
the appellant “no” twice. BS tried to push the appellant off her before he penetrated her
vagina but found him to be too strong. The appellant later restrained BS with a belt and
rope after the altercation and after she tried to stab him with a pen.

       The members had before them the testimony of BS, the 911 recording, the
testimony of the responding officer and local detectives, the appellant’s videotaped
interview, and other physical evidence. In addition, the military judge properly instructed
the members on the elements of rape as well as the definitions of force, consent, and
mistake of fact as to consent. The members were in a position to weigh and assess the
credibility of the witnesses and determine whether or not the appellant’s claim of mistake
of fact was reasonable. Moreover, the evidence need not be free of all conflict for a
rational factfinder to convict an appellant beyond a reasonable doubt. See United States
v. Lips, 22 M.J. 679, 684 (A.F.C.M.R. 1986). The members “may believe one part of a
witness’ testimony and disbelieve another.” United States v. Harris, 8 M.J. 52, 59
(C.M.A. 1979). After weighing the evidence in the record of trial and making allowances
for not having personally observed the witnesses, we are convinced of the appellant’s
guilt beyond a reasonable doubt. See Turner, 25 M.J. at 325.

                  Article 134, UCMJ, Specifications and the Terminal Element

        In Specification 3 of Charge IV, the appellant was charged and convicted of
obstruction of justice by using BS’s Facebook account to send a fictitious electronic
message.5 In Specification 4 of Charge IV, the appellant was charged and convicted of
breaking restriction after being restricted to the limits of Malmstrom Air Force Base
(AFB). Although not challenged at trial, the appellant now argues that each specification
fails to state an offense because neither—expressly or by necessary implication—alleges
the terminal element required for an Article 134, UCMJ, offense. We agree.

5
  As charged, Specification 3 of Charge IV read in part that the appellant did “wrongfully endeavor to impede an
investigation . . . by deleting records of electronic communication between [himself] and [BS] and by using [BS]’s
Facebook account to send a fictitious electronic message denying [his] involvement in physically abusing [BS].”
The members found the appellant guilty, but excepted the words “by deleting records of electronic communication
between [the appellant] and [BS] denying [the appellant]’s involvement in physically abusing [BS].” The members
found the appellant not guilty of the excepted words.


                                                        6                                      ACM 37681 (rem)
        Whether a charged specification states an offense is a question of law which 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 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 plain and obvious error, which is
forfeited rather than waived. United States v. Humphries, 71 M.J. 209, 214–15 (C.A.A.F.
2012). The remedy, if any, depends on “whether the defective specification resulted in
material prejudice to [the accused’s] substantial right to notice.” Id. To determine
whether the defective specification resulted in material prejudice to a substantial right,
this Court “look[s] 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 (quoting United States v. Cotton, 535 U.S. 625, 633
(2002)).

        In accordance with Humphries, we are compelled to disapprove the findings of
guilty to the obstruction of justice specification and the breaking restriction specification
alleged under Charge IV as a violation of Article 134, UCMJ. Neither specification
alleges the terminal element, and neither side mentioned 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.

        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.6

                                 Ineffective Assistance of Counsel

        The appellant alleges his trial defense counsel were ineffective for failing to
(1) introduce evidence in findings, under Mil. R. Evid. 412, that BS was raped by her
brother as a child, which led to her “dissociative state”; (2) introduce prior inconsistent
statements of BS; or (3) introduce evidence from the appellant’s ex-wife about the
demeanor of BS a few hours after the assault and rape. The appellant submitted a
post-trial affidavit to support his claim of ineffective assistance of counsel. In turn, the
Government countered with affidavits from the appellant’s two trial defense counsel.



6
  Because we dismiss and set aside Specifications 3 and 4 of Charge IV, we need not address the appellant’s
assignment of error challenging the legal and factual sufficiency of Specification 4 of Charge IV.


                                                    7                                    ACM 37681 (rem)
       This Court reviews claims of ineffective assistance of counsel de novo.
United States v. Mazza, 67 M.J. 470, 474 (C.A.A.F. 2009). When reviewing such claims,
we follow the two-part test outlined by the United States Supreme Court in Strickland v.
Washington, 466 U.S. 668, 687 (1984). See United States v. Tippit, 65 M.J. 69, 76
(C.A.A.F. 2007). Our superior court has applied this standard to military courts-martial,
noting that “[i]n order to prevail on a claim of ineffective assistance of counsel, an
appellant must demonstrate both (1) that his counsel’s performance was deficient, and
(2) that this deficiency resulted in prejudice.” United States v. Green, 68 M.J. 360, 361
(C.A.A.F. 2010) (citing Strickland, 466 U.S. at 687; Mazza, 67 M.J. at 474).

        Judicial scrutiny of a defense counsel’s performance must be “highly deferential
and should not be colored by the distorting effects of hindsight.” United States v. Alves,
53 M.J. 286, 289 (C.A.A.F. 2000). When there is a factual dispute, appellate courts
determine whether further factfinding is required under United States v. Ginn,
47 M.J. 236 (C.A.A.F. 1997). “[I]f the facts alleged [by the defense] would not result in
relief” under Strickland, we may address the claim without the necessity of resolving the
factual dispute. Ginn, 47 M.J. at 248.

        We have applied the standards in Ginn and conclude that we can resolve this issue
without additional fact-finding. We find that the appellant’s trial defense counsel
executed effective trial strategies and tactics regarding the issues the appellant now
raises. First, the military judge declined to admit evidence, under Mil. R. Evid. 412,
related to BS being previously raped. Even without this evidence, trial defense counsel
still conducted an effective cross-examination of BS regarding her dissociation technique.
Second, trial defense counsel strategically chose not to offer recordings of some of BS’s
prior inconsistent statements. In their affidavits, defense counsel stated they knew she
had made some recorded statements consistent with what the appellant told law
enforcement during his interrogation. Because they considered BS’s consistent
statements harmful to their case, they decided that offering recorded inconsistent
statements by BS would open the door for the Government to offer her consistent
statements on rebuttal. They deemed this course of action “useless at best and
detrimental at worst.” Finally, trial defense counsel interviewed the appellant’s ex-wife
about her interaction with BS at the time of the rape but concluded that she did not offer
any useful information. Examining the appellate filings and the record as a whole, we
hold that the appellant was not denied effective assistance of counsel. See Strickland,
466 U.S. at 687.

                                    Post-Trial Delay

       Citing United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002), the appellant argues
that the unreasonable post-trial processing in this case resulted in too severe a sentence
and warrants relief. The appellant argues that this Court should reduce his confinement
by one day for each day by which the 120-day standard for accomplishing the convening


                                            8                              ACM 37681 (rem)
authority’s action set forth in United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006),
was exceeded in this case. The appellant calculates his relief as 841 days, measured from
the date the court-martial ended, 13 December 2009, to the date of the convening
authority’s second action, 2 April 2012.

       In Tardif, our superior court held that Article 66(c), UCMJ, empowered the
service appellate courts to grant sentence relief for excessive post-trial delay without
showing actual prejudice, as is required by Article 59(a), UCMJ, 10 U.S.C. § 859(a).
Tardif, 57 M.J. at 224. Having reviewed the legislative and judicial history of both
Articles, the Court concluded that the power and duty to determine “sentence
appropriateness under Article 66(c)” is distinct from and broader than that of determining
sentence legality under Article 59(a), UCMJ:

       Article 59(a) constrains the authority to reverse “on the ground of an error
       of law.” Article 66(c) is a broader, three-pronged constraint on the court’s
       authority to affirm. Before it may affirm, the court must be satisfied that
       the findings and sentence are (1) “correct in law,” and (2) “correct in fact.”
       Even if these first two prongs are satisfied, the court may affirm only so
       much of the findings and sentence as it “determines, on the basis of the
       entire record, should be approved.”

Id. (citing United States v. Powell, 49 M.J. 460, 464–65 (C.A.A.F. 1998)). The Tardif
Court remanded the case to the lower court to determine whether relief was warranted for
excessive post-trial delay, notwithstanding the absence of prejudice: “[A]ppellate courts
are not limited to either tolerating the intolerable or giving an appellant a windfall. The
Courts of Criminal Appeals have authority under Article 66(c) . . . to tailor an appropriate
remedy [for post-trial delay], if any is warranted, to the circumstances of the case.”
Tardif, 57 M.J. at 225.

        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. The Brown court found
gross negligence due to a delay of almost 30 months from adjournment of trial until
receipt of the record for review and subsequently disapproved the adjudged bad-conduct
discharge. Id. at 607–08.




                                             9                               ACM 37681 (rem)
        Although unfortunate, the delays in the present case ultimately ensured the
appellant received a fair appellate review.7 Certainly, it would have been preferable to
have had a fully accurate record of trial at the outset for this Court to review. This also
would have precluded the appellant’s case from winding its way through two rounds of
post-trial processing. Even so, we find no evidence of bad faith or gross negligence in
the post-trial processing of the appellant’s case sufficient to prompt sentence relief.
Additionally, the other suggested factors in Brown do not cause us to exercise our power
under Article 66(c), UCMJ, which would provide a windfall remedy to the appellant.

        Additionally, the appellant alleges that post-trial delay following the convening
authority’s second action warrants relief, either under Tardif or as a due process violation
for violating the standards set forth in Moreno. We disagree. 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). Under Moreno, 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.
See Moreno, 63 M.J. at 142. 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.
See id. at 136; see also United States v. Roach, 69 M.J. 17, 22 (C.A.A.F. 2010).

       When appellate review is not completed at this level within 18 months of
docketing, 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 (4) prejudice to the appellant.” United States v. Mizgala,
61 M.J. 122, 129 (C.A.A.F. 2005); see also Barker, 407 U.S. at 530.

       This case was originally docketed for appellate review on 24 June 2010. We
granted the appellant’s motion to remand the case to correct the record of trial on

7
  What follows is a summary of the key dates in this case leading up to the convening authority’s second action. The
trial concluded on 13 December 2009, and the convening authority took action 190 days later, on 21 June 2010. The
case was initially docketed with this Court on 24 June 2010. The appellant submitted his initial assignment of errors
on 19 January 2011 and a supplemental assignment of errors on 23 March 2011. On 20 July 2011, this Court
remanded the record of trial to the convening authority to prepare a substantially verbatim record of trial. The court
reporter received the order to re-transcribe the record of trial on 7 September 2011, and completed the transcription
on 16 September 2011. Trial defense counsel completed her review on 27 January 2012, and trial counsel
authenticated the record on 1 February 2012. The staff judge advocate’s recommendation (SJAR), defense request
for clemency, and addendum to the SJAR were processed between 21 February 2012 and 27 March 2012. The
convening authority issued the second action on 2 April 2012, and the case was re-docketed with this Court on
11 April 2012.


                                                         10                                        ACM 37681 (rem)
20 July 2011, 13 months after docketing. The case was returned to us on 11 April 2012,
and the appellant filed an assignment of errors on 28 September 2012. We issued our
initial decision on 9 May 2013, 13 months after the case was returned to us. We then
rendered a decision upon reconsideration on 22 July 2013. Our superior court granted
review of this matter and set aside our decision on 15 April 2014, returning the record to
this Court on 5 May 2014. After receiving additional briefs from the parties, our decision
today has been timely issued following return of this case to our Court.

       For the time leading up to our 22 July 2013 decision upon reconsideration, even
assuming the entire three-year period since docketing is considered together, we see no
basis for relief. We have examined the Barker factors and determine the appellant
suffered no due process violation as a result of any delay in this matter. In particular, the
appellant has made no showing of prejudice under the fourth Barker factor. 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 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.

       As for the time that has elapsed since this Court’s 22 July 2013 decision, we find
no due process violation. The Moreno presumption of unreasonable delay is not
triggered for this period, as each period of time used for the resolution of legal issues
between this Court and our superior court is well within the 18-month standard.
See Mackie, 72 M.J. at 136.

                               Unlawful Command Influence

     The appellant claims that UCI occurred when Ms. SB, a family advocacy worker
at Malmstrom AFB, Montana, “got in trouble for talking with the Area Defense
Counsel,” and was thereafter reluctant to cooperate with the defense.

       Article 37(a), UCMJ, 10 U.S.C. § 837(a), states, in pertinent 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, or the action of any convening, approving, or
       reviewing authority with respect to his judicial acts.




                                             11                               ACM 37681 (rem)
While statutory in form, the prohibition can also raise due process concerns, where, for
example, UCI undermines an accused’s right to a fair trial or the opportunity to put on a
defense.

        Allegations of UCI are reviewed de novo. United States v. Harvey, 64 M.J. 13, 19
(C.A.A.F. 2006); United States v. Villareal, 52 M.J. 27, 30 (C.A.A.F. 1999). The
appellant, on appeal, bears the initial burden of raising UCI. The “appellant ‘must show
(1) 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. Richter,
51 M.J. 213, 224 (C.A.A.F. 1999) (quoting United States v. Biagase, 50 M.J. 143, 150
(C.A.A.F. 1999)). While more than a mere allegation or speculation is required, the
initial burden of showing potential UCI is low. United States v. Stoneman, 57 M.J. 35, 41
(C.A.A.F. 2002). The level of evidence necessary to raise UCI is “some evidence.” Id.
(quoting Biagase, 50 M.J. at 150) (internal quotation marks omitted).

       Once an issue of UCI is raised by some evidence, the burden shifts to the
Government to rebut an allegation of UCI by persuading the Court beyond a reasonable
doubt that (1) the predicate facts do not exist, (2) the facts do not constitute UCI, or
(3) the UCI did not have a prejudicial impact on the findings or sentence. Biagase,
50 M.J. at 151.

       Allegations of UCI are reviewed for actual UCI as well the appearance of UCI.
“Even if there was no actual unlawful command influence, there may be a question
whether the influence of command placed an ‘intolerable strain on public perception of
the military justice system.’” Stoneman, 57 M.J. at 42–43 (quoting United States v.
Wiesen, 56 M.J. 172, 175 (C.A.A.F. 2001)). The test for the appearance of UCI is
objective. “We focus upon the perception of fairness in the military justice system as
viewed through the eyes of a reasonable member of the public.” United States v. Lewis,
63 M.J. 405, 415 (C.A.A.F. 2006). An appearance of UCI arises “where an objective,
disinterested observer, fully informed of all the facts and circumstances, would harbor a
significant doubt about the fairness of the proceeding.” Id.

       About a week prior to the rape incident of which the appellant now stands
convicted, the victim, BS, contacted Ms. SB. The victim asked about anger management
classes for “her boyfriend,” and she disclosed to Ms. SB a number of confidential
matters. These included the fact that the appellant had physically abused BS, that BS had
repeatedly called the police but then denied any abuse once they arrived, and that BS was
seeking to leave the appellant.

        Independent of matters related to the present case, Ms. SB had a history of
problems related to her performance as a family advocacy worker. After receiving the
call from the victim, there were indications Ms. SB may not have handled the situation
correctly. Notes from the contact with Ms. BS should, for example, have been entered in


                                            12                              ACM 37681 (rem)
the family advocacy system of records but were instead lost or destroyed. Certain
notifications to the appellant’s unit under the Air Force Personnel Reliability Program
should have been made but were not. When her supervisors learned that Ms. SB was
subsequently interviewed by trial defense counsel, they were concerned she may have
disclosed matters in violation of the Health Insurance Portability and Accountability Act
(HIPAA). Eventually, Ms. SB’s flight commander directed her via email to consult with
the Medical Law Consultant before making any further disclosures and to have no
contact with defense counsel except in the company of certain designated members from
the unit. 8

       Upon receiving the evidence and argument of counsel, and after making detailed
findings of fact, the military judge concluded, “I find no unlawful command influence.
Even if there is unlawful command influence I don’t believe the proper remedy in this
case would be dismissal.” We agree.

       There is no indication that Ms. SB’s flight commander, or other supervisors, had
any interest in the outcome of this court-martial or wished to impede the defense in any
way. A good faith desire to comply with HIPAA and a history of work-related issues
appear to have led the flight commander to issue Ms. SB overly restrictive guidance
regarding her communications with the defense. The situation was soon remedied,
however. Ms. SB received proper advice from the Air Force legal community—that she
was free to talk with the defense and that her participation in trial related matters would
not be a HIPAA violation. She was further interviewed by trial defense counsel and
reported she felt free to disclose all she knew. She later declared under oath that she
would not feel inhibited in testifying fully and truthfully at trial.

       Significantly, except for the UCI motion itself, Ms. SB had little if anything to
offer at trial. The military judge noted correctly that, with a few possible exceptions, any
testimony from Ms. SB would likely involve inadmissible hearsay. Trial defense counsel
conceded that the chances of calling her to testify were “probably pretty unlikely.”
Ultimately, neither side deemed it necessary to call Ms. SB as a witness on findings or
the sentence.

       We find that the issue of UCI has been raised by the evidence in this case. We
find beyond reasonable doubt, however, that the facts in this case do not constitute UCI
and that UCI did not affect the findings or the sentence.




8
 Ms. SB’s Group Commander, Colonel (Col) LD, was detailed as member of this court-martial. As a prophylactic
measure, and with an eye towards avoiding any apparent unlawful command influence, and with the concurrence
with both parties, Col LD was excused for cause.


                                                    13                                    ACM 37681 (rem)
                                   Sentence Assessment

       Reassessing the sentence on the basis of the errors noted, the entire record, and in
accordance with the principles of United States v. Winckelmann, 73 M.J. 11 (C.A.A.F.
2013), and United States v. Sales, 22 M.J. 305 (CM.A. 1986), we are confident the
members would have imposed a sentence no less than the approved sentence of a
bad-conduct discharge, confinement for 9 years, and reduction to E-1. Dismissing the
obstruction of justice and breaking restriction specifications does not substantially change
the sentencing landscape. The appellant still stands convicted of rape, assault
consummated by a battery, and disobeying a lawful order, for which the maximum
imposable punishment remains confinement for life. The gravamen of the appellant’s
misconduct is captured within the remaining charges and specifications, and this Court
has experience and familiarity with the remaining offenses. This Court also finds that the
sentence approved by the convening authority is appropriate for the remaining offenses.

                                          Conclusion

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

                                          AFFIRMED.



              FOR THE COURT



              LEAH M. CALAHAN
              Deputy Clerk of the Court




                                              14                             ACM 37681 (rem)
