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

                           No. ACM 38636
                      ________________________

                         UNITED STATES
                             Appellee
                                 v.
                      Willie L. CURRY, Jr.
         Airman First Class (E-3), U.S. Air Force, Appellant
                      ________________________

       Appeal from the United States Air Force Trial Judiciary
                       Decided 14 March 2017
                      ________________________

Military Judge: Christopher M. Schumann.
Approved sentence: Dishonorable discharge, confinement for 10 years,
forfeiture of all pay and allowances, and reduction to E-1. Sentence
adjudged 14 November 2013 by GCM convened at Kirtland Air Force
Base, New Mexico.
For Appellant: Major Isaac C. Kennen, USAF; Captain Allen S.
Abrams, USAF; James. R. Trieschmann, Jr., Esquire.
For Appellee: Lieutenant Colonel Roberto Ramírez, USAF; Major Rich-
ard J. Schrider, USAF; Captain Tyler B. Musselman, USAF; Gerald R.
Bruce, Esquire.
Before MAYBERRY, SANTORO, and SPERANZA, Appellate Military
Judges.
Judge SANTORO delivered the opinion of the court, in which Senior
Judge MAYBERRY and Judge SPERANZA joined.
                      ________________________

   This is an unpublished opinion and, as such, does not serve as
   precedent under AFCCA Rule of Practice and Procedure 18.4.
                      ________________________
                       United States v. Curry, No. ACM 38636


SANTORO, Judge:
    A general court-martial composed of officer and enlisted members con-
victed Appellant, contrary to his pleas, of drinking alcohol while under age 21
and, on the same occasion, raping and strangling Airman First Class (A1C)
SM, in violation of Articles 92, 120, and 128, Uniform Code of Military Jus-
tice (UCMJ), 10 U.S.C. §§ 892, 920, 928. 1 The adjudged and approved sen-
tence was a dishonorable discharge, confinement for 10 years, forfeiture of all
pay and allowances, and reduction to E-1.
    Appellant initially raised three assignments of error: (1) the military
judge abused his discretion in denying a Defense request for a post-trial evi-
dentiary hearing and/or new trial, (2) the record of trial was not substantially
verbatim, and (3) the evidence is legally and factually insufficient to sustain
the convictions for rape and assault consummated by a battery. We granted
an unopposed Government motion to remand to the convening authority for
correction of the record of trial and new post-trial processing. That has now
been completed, mooting Appellant’s second initial assignment of error.
    Before us now, Appellant renews his first and third assignments of error
and alleges three additional errors: (1) post-trial processing delays warrant
relief, (2) the staff judge advocate’s recommendation is either incorrect or the
record of trial remains substantially incomplete, and (3) the military judge
erred in his instructions to the members about proof beyond a reasonable
doubt. 2 We agree that the post-trial processing of this case merits relief but
reject Appellant’s other assignments of error.

                                   I. BACKGROUND
    Appellant and the victim, A1C SM, were both stationed at Kirtland Air
Force Base, New Mexico. Between Christmas 2012 and New Year’s Day, rela-
tively few Airmen remained in the local area. The victim, Appellant, and oth-
ers received text messages from friends asking if they were on base. A small
group of Airmen then gathered at the victim’s dormitory room to listen to
music and drink alcoholic beverages. A1C SM consumed several beverages


1 Appellant was found not guilty of breaking into A1C SM’s dormitory room and for-
cibly sodomizing her.
2   As the Court of Appeals for the Armed Forces recently decided this issue adversely
to Appellant, United States v. McClour, 76 M.J. 23, 2017 CAAF LEXIS 51 (C.A.A.F.
24 January 2017), we do not separately address this issue here.




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                   United States v. Curry, No. ACM 38636


over the course of the evening and eventually became drunk, vomited, and
was helped to bed by those at the party. Once she was in bed, everyone left
her room and she went to sleep.
   Appellant and Airmen MJ and JL went to Appellant’s room (in the same
dormitory) to continue the party. They had been in Appellant’s room only a
matter of minutes when Appellant left his room. Appellant went to A1C SM’s
room, gained entry, and strangled and raped her.

                               II. DISCUSSION
A. Legal and Factual Sufficiency
    Appellant argues that the evidence is legally and factually insufficient to
establish that he strangled and raped A1C SM. We review issues of legal and
factual sufficiency de novo. United States v. Washington, 57 M.J. 394, 399
(C.A.A.F. 2002). The test for legal sufficiency is “whether, considering the ev-
idence in the light most favorable to the prosecution, a reasonable factfinder
could have found all the essential elements beyond a reasonable doubt.” Unit-
ed States v. Humpherys, 57 M.J. 83, 94 (C.A.A.F. 2002) (quoting United
States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987)). In applying this test, “we
are bound to draw every reasonable inference from the evidence of record in
favor of the prosecution.” United States v. Barner, 56 M.J. 131, 134 (C.A.A.F.
2001); see also United States v. McGinty, 38 M.J. 131, 132 (C.M.A. 1993).
    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 [Appellant]’s guilt beyond a reasonable
doubt.” Turner, 25 M.J. at 325. In conducting this unique appellate role, we
take “a fresh, impartial look at the evidence,” applying “neither a presump-
tion of innocence nor a presumption of guilt” to “make [our] own independent
determination as to whether the evidence constitutes proof of each required
element beyond a reasonable doubt.” Washington, 57 M.J. at 399. The term
reasonable doubt, however, does not mean that the evidence must be free
from conflict. United States v. Lips, 22 M.J. 679, 684 (A.F.C.M.R. 1986). Our
assessment of legal and factual sufficiency is limited to the evidence produced
at trial. United States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993).
   The Prosecution’s case was compelling. The victim testified that she and
Appellant knew each other socially and had attended various functions to-
gether but that she was not interested in him romantically. She recalled wak-
ing up to Appellant standing next to her bed with his penis exposed. When
she physically and verbally resisted, Appellant grabbed her, pulled her off the
bed, and told her to remove her clothes. When she attempted to flee, Appel-
lant hooked his arm around her neck, strangled her, and stopped her from


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                   United States v. Curry, No. ACM 38636


leaving. She made another attempt to flee and Appellant again stopped her
by placing his arm around her neck. The victim could not recall whether Ap-
pellant told her to get on the bed or she “just knew [she] had to do it,” but she
got onto the bed. Appellant vaginally raped her, slapping her as she cried,
and asking her “Is this rape, am I raping you?” The assault stopped when
Appellant’s penis dislodged the victim’s birth control which fell from her
vagina. With Appellant temporarily confused about what had happened, the
victim fled into the bathroom she shared with her suitemate, locked the door,
and remained there until she thought Appellant had left her room. When she
emerged from the bathroom, she made several calls to friends and her super-
visor asking for help. She eventually reached a fellow Airman who picked her
up and got her to her supervisor’s home.
    The victim’s testimony was corroborated by the other party attendees, the
Airmen she called for assistance, her supervisor, and her supervisor’s wife. In
addition, one of the Airmen she called immediately after the assault pre-
served her voicemail plea for help. According to Airmen JL and MJ, who were
both at the gathering in the victim’s room, they and Appellant went to Appel-
lant’s room after they put the victim to bed. After they were in Appellant’s
room for a brief time, Appellant said he was going to go get a chair. Appellant
left his room and never returned, so Airmen JL and MJ left. The Prosecution
concluded its case with forensic evidence obtained during the victim’s sexual
assault examination and a search of Appellant’s person. Medical and law en-
forcement personnel testified that the victim had bruising consistent with her
reports of having been strangulated and Appellant’s DNA was found under
the victim’s fingernails.
    Appellant testified that he saw the victim in passing four to five times a
week, often at the smoking area or with friends; the victim let him drive her
car on one occasion; and they both went on a weekend trip to Los Angeles
with three others to stay at the parents’ home of a fellow Airman. He said
that their first intimate encounter occurred on that Los Angeles trip while
they were dancing and Appellant put his hand down her pants for a few sec-
onds with no reaction from her. He recounted a later occasion in which he vis-
ited her dormitory room and sat on her bed as they listened to music. Appel-
lant testified that the victim started rubbing his stomach, then his penis, and
without any other discussion helped him take his pants off and performed
fellatio.
   Appellant testified that on the night of the alleged rape, he did not think
the victim was drunk. He could not recall why he left his room while Airmen
JL and MJ were there, but he went to the victim’s room, knocked on her door,
identified himself, and entered her room after she opened the door for him.
After the victim rinsed her mouth out they sat together on her bed, began


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                   United States v. Curry, No. ACM 38636


talking, and engaged in consensual fellatio and vaginal sex which ended
when Appellant dislodged her birth control. The victim ran into the bathroom
so Appellant put his clothes on (without removing the condom he had been
wearing) and left. When he returned to his room he removed the condom, put
it in a trash bag, and immediately brought the trash bag to the dumpster.
    If believed, the victim’s testimony established each element of the offens-
es. Although we recognize our authority to find the victim not credible based
simply on a cold reading of the record, the trial court was in a better position
to make that assessment. Washington, 57 M.J. at 399. We agree with our
Army colleagues who have noted that “the degree to which we ‘recognize’ or
give deference to the trial court’s ability to see and hear the witnesses will
often depend on the degree to which the credibility of the witness is at issue.”
United States v. Davis, 75 M.J. 537, 546 (Army Ct. Crim. App. 2015) (en
banc).
    We cannot say that when viewing the evidence in the light most favorable
to the Prosecution a reasonable factfinder could not credit the victim’s testi-
mony. We, therefore, conclude that the evidence is legally sufficient to sup-
port Appellant’s convictions.
    We have reviewed the evidence offered at trial, paying particular atten-
tion to the inconsistencies and arguments Appellant noted. None of the in-
consistencies, either standing alone or taken together, cause us to believe
that the victim’s testimony was not credible. Giving appropriate deference to
the trial court’s ability to see and hear the witnesses, and after our own inde-
pendent review of the record, we are ourselves convinced of Appellant’s guilt
beyond a reasonable doubt.
B. Request for Post-trial Evidentiary Hearing and/or New Trial
   Appellant’s court-martial was conducted in several sessions. Arraignment
occurred on 27 June 2013. Members were initially empaneled on 3 September
2013, but the military judge excused the entire first panel for cause after a
member disclosed in the group voir dire session knowledge of Appellant
and/or A1C SM’s attendance at the mental health clinic. A second panel was
assembled on 5 September 2013. Following excusals, Captain (Capt) JM be-
came the president of the court-martial and the court-martial recessed for
two months. Trial on the merits was held from 12–14 November 2013. Sen-
tence was adjudged on 14 November 2013 and the members were excused on
that same date.
    On 22 November 2013, Capt JM was randomly selected to provide a uri-
nalysis sample as part of the Air Force’s drug testing program. Capt JM’s
sample tested positive for oxycodone and oxymorphone. During the law en-
forcement investigation that followed, on 17 December 2013, Capt JM told


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                      United States v. Curry, No. ACM 38636


investigators that between August and October 2013 she had a screw insert-
ed for a dental implant and was given a prescription of OxyContin. She was
“relatively sure” she had destroyed the remaining pills once she no longer
needed them. In November 2013, she experienced a back spasm and ingested
what she thought was a Flexeril (cyclobenzaprine, a muscle relaxant) from a
valid prescription. Capt JM told investigators that although she did not think
she took oxycodone instead of Flexeril, she acknowledged it was possible. She
also told investigators that her daughter lived with her and had mental
health issues, to include suicidal ideations. No adverse action was taken
against Capt JM.
      Prosecutors provided this information to trial defense counsel. As will be
discussed in more detail below, the preparation of the record of trial was sig-
nificantly delayed and the record had not yet been authenticated by the mili-
tary judge when trial defense counsel filed a motion for a post-trial Article
39(a), UCMJ, session and a new trial. Trial defense counsel argued that a
post-trial Article 39(a), UCMJ, session was necessary so they could conduct
additional voir dire with Capt JM about her daughter’s condition and Capt
JM’s positive urinalysis result, as well as explore whether Capt JM escaped
punishment because she had been the president of Appellant’s court-martial
(which, the Defense argued, raised the appearance of unlawful command in-
fluence). The motion for a new trial asserted three bases: (1) Capt JM was not
truthful in her responses to the September voir dire questions, (2) the mili-
tary judge should have conducted additional voir dire when court re-convened
in November, and (3) command influence, as noted above, required a new tri-
al. 3
    The military judge denied both requests. He concluded that the Defense
failed to raise a colorable claim that Capt JM failed to answer voir dire ques-
tions honestly, there was no legal requirement to re-open voir dire after a
continuance, and the Defense had raised no more than a “mere allegation or
speculation” that command influence existed.
    We review the military judge’s denial of both motions for an abuse of dis-
cretion. United States v. Meghdadi, 60 M.J. 438, 441 (C.A.A.F. 2005). “The
abuse of discretion standard is a strict one, calling for more than a mere dif-
ference of opinion.” United States v. McElhaney, 54 M.J. 120, 130 (C.A.A.F.
2000). “[O]n a mixed question of law and fact . . . a military judge abuses his
discretion if his findings of fact are clearly erroneous or his conclusions of law
are incorrect.” United States v. Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995).


3   Appellant has not renewed the claim of unlawful command influence on appeal.




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                      United States v. Curry, No. ACM 38636


C. Truthfulness in Response to Voir Dire Questions
    Voir dire is critical to the fairness of a court-martial and Appellant’s right
to a fair trial is undermined “if panel members fail to answer material ques-
tions honestly during voir dire.” United States v. Sonego, 61 M.J. 1, 2
(C.A.A.F. 2005) (citing United States v. Mack, 41 M.J. 51, 54 (C.M.A. 1994)).
To obtain a new trial due to an incorrect juror response in voir dire, “a party
must first demonstrate that a juror failed to answer honestly a material
question on voir dire, and then further show that a correct response would
have provided a valid basis for a challenge for cause.” Id. at 3 (quoting
McDonough Power Equip. v. Greenwood, 464 U.S. 548, 556 (1984)). Although
an evidentiary hearing is the usual procedure for determining whether a ju-
ror has provided a dishonest response, such a hearing is necessary only when
there is a “colorable claim” of such dishonesty. Id. at 4.
   Both below and before us, Appellant identifies two voir dire questions
that he claims Capt JM answered dishonestly. The first was, “[D]oes any
member know of anything of either a personal or professional nature which
would cause you to be unable to give your full attention to these proceedings
throughout the trial?” Capt JM answered no. Appellant argues that Capt JM
was dishonest by failing to disclose that her daughter had mental health is-
sues and also asserts (without evidence) that Capt JM was under the influ-
ence of oxycodone in September.
   This question called for an inherently subjective response. There is no ev-
idence, nor any basis upon which reasonably to speculate, that Capt JM’s
daughter’s condition prevented her from performing military duties. 4 Even
assuming arguendo that Capt JM was in pain or had ingested oxycodone in
September, there is also no colorable claim that Capt JM’s subjective belief
that she could perform her duties was dishonest. 5
   The second allegedly dishonest answer was to the question: “Is any mem-
ber aware of any matter which may raise a substantial question concerning


4 We reject Appellant’s argument that Capt JM, speaking for the entire panel, re-
quested an evening recess at 6:43 p.m. on the second full day of trial, having also
been in court until 6:09 p.m. the preceding day, is evidence that Capt JM was unable
to perform her duties.
5 Asking whether a witness, deponent, or juror has ingested substances, prescription
or otherwise (to include alcohol), at or near the time of trial or deposition is a routine
question in civil and criminal litigation. The parties’ failure to ask a question that in
hindsight might have yielded information of interest to them is not a basis for a new
trial or appellate relief.




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                   United States v. Curry, No. ACM 38636


your participation in this trial as the [sic] court members?” Again, Capt JM
answered “no.” This question has both objective and subjective components.
To answer affirmatively, the member must actually be aware of the matter(s)
at issue and must subjectively believe that the matter might raise a substan-
tial question as to her participation.
    With respect to Capt JM’s daughter’s situation, we see no colorable claim
that Capt JM attempted to deceive by answering “no.” She was never asked
whether anyone in her family had special needs, nor does the fact that some
members in such a situation might answer affirmatively mean that those
who do not are being deceitful. There was nothing to indicate that mental
health concerns or suicidal ideations were or would be an issue in Appellant’s
case. Nor do we expect or require court members to reveal immaterial aspects
of their family or private lives in response to such a vague question.
    With respect to whether Capt JM should have disclosed that she had den-
tal or back issues or had prescriptions for OxyContin and/or Flexeril, assum-
ing arguendo that Capt JM had in fact taken either or both of those medica-
tions, there has been no colorable showing that she subjectively believed that
taking those medications at her dentist’s or physician’s direction would nec-
essarily raise a substantial doubt about her participation. Both in September
and November, she was present for duty and not on convalescent leave, de-
spite military medical providers’ apparent knowledge of her physical condi-
tion and her prescription(s).
D. Additional Voir Dire When Trial Resumed in November
   Appellant next argues that the military judge erred and a new trial is
warranted because he failed to conduct additional voir dire sua sponte when
the court-martial resumed in November. Appellant cites no authority for this
proposition, nor are we aware of any. We decline to establish a requirement
that additional voir dire be conducted after a recess or continuance and in-
stead leave this within the sound discretion of the trial judge. As Appellant
never asked to conduct additional voir dire, and the military judge did not
deny such a request, the military judge cannot have abused his discretion.
E. Staff Judge Advocate’s Recommendation
    Appellant next raises two distinct but related claims with respect to the
staff judge advocate’s recommendation (SJAR) to the convening authority
prior to the second action. He first contends that the SJAR erroneously stated
that 108 pages were added to the record following our initial remand when in
fact only 70 pages were added. In the alternative, he argues that if 108 pages
actually were added to the record, the record before us is missing 38 pages
and thus is not substantially complete. Appellant failed to comment on the



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                     United States v. Curry, No. ACM 38636


SJAR’s statement about the number of pages added to the record in his re-
sponse to the convening authority.
    Appellant also argues that the staff judge advocate (SJA) gave erroneous
advice to the convening authority in several respects. First, he claims that
the SJA erred by telling the convening authority that Appellant “must ‘show
particularized anxiety or concern that is distinguishable from the normal
anxiety experienced by prisoners awaiting an appellate decision’” to merit
relief for post-trial processing delays under our superior court’s guidance in
United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006). Second, he asserts
that the SJAR failed to inform the convening authority about language con-
tained in our initial remand order relating to the request for a post-trial Arti-
cle 39(a), UCMJ, session. Finally, he argues that the SJAR failed to address
his assertion that the record had still not been properly completed.
    Proper completion of post-trial processing is a question of law which we
review de novo. United States v. Sheffield, 60 M.J. 591, 593 (A.F. Ct. Crim.
App. 2004) (citing United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000)). Fail-
ure to comment in a timely manner on matters in the SJAR, or on matters
attached to the SJAR, forfeits any later claim in the absence of plain error. 6
Rule for Courts-Martial (R.C.M.) 1106(f)(6); United States v. Scalo, 60 M.J.
435, 436 (C.A.A.F. 2005). “To prevail under a plain error analysis, [Appellant
bears the burden of showing] that: ‘(1) there was an error; (2) it was plain or
obvious; and (3) the error materially prejudiced a substantial right.’” Scalo,
60 M.J. at 436 (quoting Kho, 54 M.J. at 65).
    With respect to the number of pages added to the record of trial, unlike
when he submitted his initial assignments of error, Appellant does not actu-
ally claim that the record is incomplete or identify portions allegedly missing.

6 Rule for Courts-Martial 1106(f)(6) and United States v. Scalo, 60 M.J. 435, 436
(C.A.A.F. 2005), both indicate that waiver occurs when counsel fails to comment on
matters in the staff judge advocate’s recommendation (SJAR). However, our superior
court’s decision in United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009), recog-
nizes that military courts had failed to “consistently distinguish between the terms
‘waiver’ and ‘forfeiture.’” Gladue held that waiver is the “intentional relinquishment
or abandonment of a known right,” which precludes appellate review of an issue,
while forfeiture is “the failure to make the timely assertion of a right” leading to
plain error review on appeal (quoting United States v. Olano, 507 U.S. 725, 733
(1993)) (quotation marks omitted). Following Gladue, the term “forfeiture” should
generally characterize the effect of a failure to timely comment on matters in the
SJAR. See United States v. Parker, 73 M.J. 914 (A.F. Ct. Crim. App. 2014) (appellant
forfeited, rather than waived, a claim that erroneous information was attached to the
SJAR).




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                   United States v. Curry, No. ACM 38636


The Government submitted unrebutted affidavits with respect to this and the
following assignment of error. The affidavits, which are more fully discussed
below, establish to our satisfaction that the record before us contains the pre-
viously-missing pages and is substantially complete, and that the page count
reflected in the SJAR was an administrative error. Moreover, Appellant has
claimed no prejudice and we discern none from the record.
    With respect to the standard used to determine whether Appellant merit-
ed relief for post-trial processing delays, the SJA accurately quoted from our
superior court’s decision in Moreno. Appellant argues that the SJA’s excerpt
of that language misled the convening authority into believing that he could
not grant relief for the delay. We disagree; in fact, the addendum to the SJAR
clearly stated it was the SJA’s recommendation and advised the convening
authority that he could take other action.
    In our initial remand, we included a footnote reminding all parties that
both the military judge and convening authority could order a post-trial Arti-
cle 39(a), UCMJ, session while the case was back before them. We did not,
however, direct that such a session be held. Appellant’s assignment of error
mischaracterizes our statement as saying that there would be a “benefit” to
holding such a hearing. As this portion of our remand order did nothing more
than note that R.C.M. 1102(d) authorized such a hearing, it was not error for
the SJA not to comment on our order.
    Finally, although Appellant now claims he complained to the convening
authority that the record, even after remand, was still not complete, he did
not. Appellant’s response to the SJAR identified three legal errors: post-trial
delay, the issues related to Capt JM, and alleged multiplicity and/or unrea-
sonable multiplication of charges with respect to the rape and assault con-
summated by a battery specifications. Appellant’s only comment about the
state of the record of trial was found in the penultimate paragraph of appel-
late defense counsel’s 16-page response to the SJAR, in which counsel sum-
marizes his clemency request by stating, “At the heart of this request is a
young service member who has been sitting in confinement since 2013, who’s
[sic] record has yet to be properly completed, and who’s [sic] appeal has yet to
be heard. Thus, we humbly request that you grant the relief requested.”
When taken in the context of the entire submission—which included a clear-
ly-delineated list of alleged errors (of which this was not one)—we find that
Appellant failed to raise this as an alleged error and that the SJA did not err
in failing to comment on this assertion.
F. Post-trial Processing Delays
    Appellant’s trial concluded on 14 November 2013. The convening authori-
ty took action on 8 July 2014, 236 days later. The case was docketed with us


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                    United States v. Curry, No. ACM 38636


on 30 July 2014, 22 days after action. We remanded the case on 23 October
2015, 450 days after docketing. The military judge issued a certificate of cor-
rection on 4 January 2016, 73 days after remand and 781 days after trial.
The convening authority took action for the second time on 4 May 2016—121
days after the military judge’s certificate of correction, 194 days after our re-
mand, and 902 days after trial. The case was returned to us on 23 September
2016, 142 days after the second action, 337 days after we remanded the case,
and 1,044 days after trial. As of the date of our decision, over 1,200 days have
elapsed since Appellant’s trial.
   Convicted Airmen have a due process right to timely review and appeal of
courts-martial convictions. Moreno, 63 M.J. at 135. Accordingly, we review de
novo Appellant’s claim that he has been denied his due process right to a
speedy post-trial review and appeal. Id.
    In Moreno, our superior court established a presumption of unreasonable
post-trial delay that requires a due process review when the convening au-
thority does not take action within 120 days of trial, when a record of trial is
not docketed with us within 30 days of the convening authority’s action, and
when we do not render a decision within 18 months of the case’s docketing.
Id. at 142.
    If there is a Moreno-based presumption of unreasonable delay or an oth-
erwise facially-unreasonable delay, we examine the claim under the four fac-
tors 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.
Moreno identified three types of prejudice arising from post-trial processing
delay: (1) oppressive incarceration; (2) anxiety and concern; and (3) impair-
ment 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 the appellant.” Id. at 136. Then, we balance
our analysis of the factors to determine whether a due process violation oc-
curred. Id. (citing Barker, 407 U.S. at 533) (“Courts must still engage in a dif-
ficult and sensitive balancing process.”). “No single factor is required for find-
ing a due process violation and the absence of a given factor will not prevent
such a finding.” Id. Or, to put it differently, the absence of prejudice does not
preclude a finding that a due process violation occurred. Using this structure,
we now analyze Appellant’s claims.
    The existence of at least one presumptively-unreasonable delay triggers a
full due process review under Moreno. Additionally, we find the more than
1,200 days of overall delay in this case facially unreasonable, also triggering


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                     United States v. Curry, No. ACM 38636


a full due process review. This egregious delay weighs heavily in Appellant’s
favor.
    In response to Appellant’s claims, the Government submitted affidavits
from personnel involved in post-trial activities related to this case. Taken to-
gether, the affidavits paint the picture of a base legal office that was not ade-
quately staffed to perform its mission, insufficiently trained and supervised,
or both. For example, it took court reporting personnel 180 days to present
the (initial, incomplete) transcript to the military judge for authentication. As
another example, it took 142 days to assemble the record of trial following the
second action, in large part because those responsible for re-assembling the
record were unable to locate critical documents.
   Appellant asserts that he has been prejudiced by this delay in two ways.
First, he claims that the Government has, by its dilatory processing, delayed
appellate resolution of his case. We do not find that this argument constitutes
prejudice per se, as this is exactly what the Moreno post-trial processing
standards were designed to address—otherwise, every delay beyond the
Moreno time standards would constitute prejudice.
    Second, he claims that the delay has caused him “anxiety and concern”
and that he has lost several family members during his incarceration. While
we certainly do not minimize the emotional impact of the loss of a family
member, and recognize that the anxiety an appellant may experience should
not be measured against whether his appeal is successful, he has nonetheless
failed to establish “particularized anxiety or concern that is distinguishable
from the normal anxiety experienced by prisoners awaiting an appellate deci-
sion.” Moreno, 63 M.J. at 140.
    In weighing and balancing the Barker factors, we easily conclude, as not-
ed above, that the length of the delay and reasons for the delay weigh heavily
in Appellant’s favor. His assertion of his right to speedy appellate review also
weighs in his favor. 7 Although the lack of constitutionally-cognizable preju-
dice resulting from the delay weighs in the Government’s favor, on the whole
we are convinced that the unnecessarily-dilatory processing of this case vio-
lated Appellant’s due process rights and warrants relief. See United States v.
Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006) (unreasonably lengthy delay, no jus-



7 The Government correctly notes that much of the appellate delay, and some of the
trial-level delay, resulted from Appellant’s requests for enlargements of time to sub-
mit appellate and clemency matters. We have considered the totality of the circum-
stances in determining the appropriate relief.




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                     United States v. Curry, No. ACM 38636


tifiable reason for the delay, and assertion of right to speedy trial sufficient to
overcome lack of prejudice).
    Even in the absence of prejudice, “we are mindful of the egregious delay
in this case and the adverse impact such delays have upon the public percep-
tion of fairness in the military justice system.” Id. at 363. We have no doubt
that the unreasonably dilatory processing of Appellant’s case would cause a
reasonable person to question the fairness of our system and cannot be ig-
nored. We therefore reassess Appellant’s sentence to a dishonorable dis-
charge, confinement for nine years and six months, forfeiture of all pay and
allowances, and reduction to E-1. 8

                                  III. CONCLUSION
   The findings of guilt and the sentence, as reassessed, are correct in law
and fact and no error materially prejudicial to the substantial rights of Appel-
lant occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Ac-
cordingly, the findings and sentence, as reassessed, are AFFIRMED.


                   FOR THE COURT



                   KURT J. BRUBAKER
                   Clerk of the Court




8 We have separately evaluated Appellant’s claims under our Article 66(c), UCMJ, 10
U.S.C. § 866(c), authority to grant relief even in the absence of prejudice. United
States v. Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002); see also United States v. Toohey, 63
M.J. 353, 362 (C.A.A.F. 2006) (finding delays were such that “tolerating it would ad-
versely affect the public’s perception of the fairness and integrity of the military jus-
tice system”). Had we not decided this case based on Moreno and constitutional due
process, we would have granted identical relief under our Article 66(c) authority.




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