           UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                        UNITED STATES

                                                    v.

                         Airman First Class JASON THOMPSON
                                United States Air Force

                                       ACM S31996 (recon)

                                           06 August 2014

         Sentence adjudged 16 August 2011 by SPCM convened at Randolph
         Air Force Base, Texas. Military Judge: Matthew D. Van Dalen.

         Approved Sentence: Bad-conduct discharge, confinement for 30 days, and
         reduction to E-1.

         Appellate Counsel for the Appellant:       Major Matthew T. King;
         Major Thomas C. Franzinger; and Captain Luke D. Wilson.

         Appellate Counsel for the United States: Colonel Don M. Christensen;
         Lieutenant Colonel C. Taylor Smith; Major Daniel J. Breen;
         Major Brian C. Mason; and Gerald R. Bruce, Esquire.

                                                 Before

                             ALLRED, MITCHELL, and WEBER
                                 Appellate Military Judges

                                  OPINION OF THE COURT
                                 UPON RECONSIDERATION

                   This opinion is subject to editorial correction before final release.



PER CURIAM:

       A panel of officer members sitting as a special court-martial convicted the
appellant, contrary to his pleas, of a single specification of wrongful use of cocaine, in
violation of Article 112a, UCMJ, 10 U.S.C. § 912a. The adjudged and approved sentence
consisted of a bad-conduct discharge, confinement for 30 days, and reduction to E-1.
                                   Procedural History

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

       When the appellant’s case was originally before us, the appellant raised four
issues: (1) whether testimonial hearsay was erroneously admitted through a drug testing
report (DTR) and the testimony of a Government expert witness; (2) whether it was error
to admit the DTR as a record of regularly conducted activity under
Mil. R. Evid. 803(6); (3) whether trial counsel’s argument was improper because it
blurred the line between punitive and administrative discharges; and (4) whether the
appellant was deprived of due process because proper procedures were not followed for
resolving an ambiguous sentence.

        On 7 August 2013, we issued a decision affirming the approved findings and
sentence in the appellant’s case. United States v. Thompson, ACM S31996 (A.F. Ct.
Crim. App. 7 August 2013) (unpub. op.). Pursuant to his appointment by the Secretary of
Defense, Mr. Soybel was a member of that panel. The appellant moved this Court to
vacate the decision on the basis of Mr. Soybel’s participation and also petitioned our
superior court for a grant of review. On 31 October 2013, our superior court converted
the appellant’s motion to vacate, pending before our Court, into a motion for
reconsideration, and dismissed the appellant’s petition for grant of review without
prejudice. United States v. Thompson, 73 M.J. 91 (C.A.A.F. 2013) (mem.). On
15 April 2014, our superior court issued its decision in United States v. Janssen,
73 M.J. 221, 225 (C.A.A.F. 2014), holding 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.”

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




                                            2                            ACM S31996 (recon)
                                       Background

       The appellant provided a urine sample as part of his training squadron’s random
urinalysis inspection. It was sent to the Air Force Drug Testing Laboratory (AFDTL),
which returned a DTR identifying the appellant’s sample as testing positive for cocaine.

       At trial, the defense filed a motion in limine seeking to suppress the DTR. The
military judge denied the motion, and the DTR was offered and admitted at trial. It
contained redacted copies of the cover sheet and all of the internal certifications by
non-testifying AFDTL personnel. The remaining pages were chain of custody documents
and machine-generated scientific data. The appellant avers that the military judge erred
when he admitted the DTR as evidence because it violated his right under the Sixth
Amendment1 to confront the witnesses against him.

        An expert witness in the field of forensic toxicology and the drug testing
operations and procedures at the AFDTL, Dr. H-M, testified about the processing of the
appellant’s sample through the drug testing laboratory. She also interpreted the scientific
results, which were presented as a series of numerical data and graphs in the DTR.

       Dr. H-M was the branch chief of the forensic science section of the AFDTL. She
did not personally test the appellant’s sample herself, but based on her personal
knowledge of the laboratory, and her interpretation of the scientific results in the DTR,
she testified that the appellant’s sample tested positive for benzoylecgonine (BZE), the
metabolite of cocaine, in the amount of 118 nanograms per milliliter.

       Dr. H-M discussed all 25 pages of the DTR and interpreted not only the scientific
data, but also the chain of custody information. She also explained the process the
AFDTL implements when testing a batch of urine samples. On cross-examination, she
admitted that she did not personally test the appellant’s sample and that the results were
dependent on humans performing their task properly. She also acknowledged humans
sometimes make mistakes.

      The defense’s theory at trial was that, notwithstanding the guidance in
United States v. Blazier, 69 M.J. 218 (C.A.A.F. 2010), the DTR should have been
excluded in its entirety under Bullcoming v. New Mexico, ___ U.S. ___, 131 S. Ct. 2705
(2011). We disagree and affirm the conviction.

                                  Testimonial Hearsay

      Even though a military judge’s decision to admit evidence is reviewed under an
abuse of discretion standard, United States v. Clayton, 67 M.J. 283, 286 (C.A.A.F. 2009),

1
    U.S. CONST. amend. VI.


                                             3                            ACM S31996 (recon)
the question of whether the admitted evidence violates the Confrontation Clause of the
Sixth Amendment2 is reviewed de novo. Blazier, 68 M.J. 439, 442 (C.A.A.F. 2010);
United States v. Harcrow, 66 M.J. 154, 158 (C.A.A.F. 2008); United States v. Rankin,
64 M.J. 348, 351 (C.A.A.F. 2007). If we find a violation of the Confrontation Clause, we
cannot affirm the decision unless this Court is convinced beyond a reasonable doubt that
the error was harmless. See Rankin, 64 M.J. at 353.

        The Confrontation Clause guarantees an accused the right to confront witnesses
who are giving testimony against him, unless the witnesses were unavailable to appear at
trial and the accused had a prior opportunity to cross examine them. See Crawford v.
Washington, 541 U.S. 36 (2004). The Supreme Court addressed this issue in
Melendez–Diaz v. Massachusetts, 557 U.S. 305 (2009). There, the trial court admitted
into evidence affidavits from state forensic laboratory analysts reporting the results of
their examination of a substance alleged to be cocaine. Id. at 308. The results were
sworn to by the analysts before a notary public. Id.

        In finding that the admission of this evidence violated the accused’s rights under
the Confrontation Clause, the Court identified several “core” classes of testimonial
statements covered by the Confrontation Clause. Id. at 309–10. The forensic affidavits
attesting to “the fact in question,” that the substance tested was in fact cocaine, was “[t]he
precise testimony the analysts would be expected to provide if called at trial.”
Id. at 310. The Court explained that the affidavits were “functionally identical to live,
in-court testimony, doing ‘precisely what a witness does on direct examination.’”
Id. at 310–11 (quoting Davis v. Washington, 547 U.S. 813, 830 (2006)). See, e.g.,
United States v. Cavitt, 69 M.J. 413, 414 (C.A.A.F. 2011); United States v. Dollar,
69 M.J. 411 (C.A.A.F. 2011).3

       Our superior court in United States v. Tearman, 72 M.J. 54 (C.A.A.F. 2013),
found that chain of custody documents and internal review documents are
non-testimonial. The Blazier Court held that machine-generated documents were also
non-testimonial. 69 M.J. at 224. To the extent those types of documents were in the
DTR at trial, there was no Confrontation Clause problem.

                                     1. Testimony about Certification

        However, it appears some testimonial hearsay was admitted through the testimony
of the Government’s expert witness, Dr. H-M. Although the Government redacted the
certifications on most of the documentation admitted and redacted the signatures of the
certifying officials, some of the certifying language remained.

2
 U.S. CONST. amend VI.
3
 For this reason, Williams v. Illinois, ___ U.S. ___, 132 S. Ct. 2221 (2012), is inapplicable. The information in that
case was not admitted for the truth of the matter asserted though relied upon by the testifying expert witness.


                                                          4                                     ACM S31996 (recon)
       Page four of the DTR was entitled “Presumptive List.” It listed the appellant’s
sample as a “presumptive positive” and indicated additional testing would be required.
At the bottom of this page were three separate statements. For each, the signatures and
date signed were redacted. The first statement said all other samples were “certified as
negative/untestable and can be destroyed.” The second statement said, “Presumptive
positive specimen bottles were removed from the confirm tray in secure storage for the
purpose of bottle label review and returned to the confirm tray in secure storage.” The
third statement said, “Additional bottle(s) were removed from the batch tray and
transferred for the following reason:”. There were no reasons given, leading one to
assume no additional bottles were removed from that batch tray.

       When Dr. H-M was asked about the “presumptive positive list” she testified it was
actually a certification form where a laboratory certifying official indicated that the
appellant’s specimen was positive after the screening test, that it would need to undergo
further screening, and that all the negative samples in that batch could be destroyed.

        Dr. H-M’s discussion about another lab worker’s certification of the presumptive
positive results introduced testimonial hearsay into the trial. Even though the signature
was redacted, the panel president specifically asked about the signature after Dr. H-M
testified that it was certified by a certifying official indicating that it was presumptively
positive. This created a situation where an in-court expert witness testified about another
(unidentified) person’s certification in a laboratory report prepared in part by the
non-testifying individual. Thus, an out-of-court certifying official is essentially testifying
through an in-court expert witness’s interpretation of the DTR without the appellant
having the opportunity to confront that witness.4 Thus, we find the admission of the
“Presumptive List,” coupled with Dr. H-M’s testimony, negated the intended effects of
the redaction—to keep the certifying official’s “testimony” out of the minds of the
members.

                                              2. Effect of Error

       Having found that testimonial hearsay was erroneously admitted, we must
evaluate its impact on the case. We assess the impact of such error de novo to see
whether this constitutional error is harmless beyond a reasonable doubt. See
Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986); United States v. Sweeney,
70 M.J. 296, 306 (C.A.A.F. 2011); United States v. Kreutzer, 61 M.J. 293, 299 (C.A.A.F.
2005). As our superior court in Tearman articulated:

              To determine whether a Confrontation Clause error is harmless
        beyond a reasonable doubt, this Court has adopted the balancing test

4
 We note the appellant did not specifically object to this testimony, but the entire report was the subject of the
motion in limine.


                                                        5                                   ACM S31996 (recon)
      established in Van Arsdall, considering such factors as: “[1] the importance
      of the unconfronted testimony in the prosecution’s case, [2] whether that
      testimony was cumulative, [3] the existence of corroborating evidence,
      [4] the extent of confrontation permitted, and [5] the strength of the
      prosecution’s case.”

Tearman, 72 M.J. at 62 (quoting Sweeney, 70 M.J. at 306 (citing Van Arsdall,
475 U.S. at 684)). This list of factors is not exhaustive, and the “determination is made
on the basis of the entire record.” Blazier, 69 M.J. at 227. “To conclude that a
Confrontation Clause error was harmless beyond a reasonable doubt, we must be
convinced that the testimonial hearsay was unimportant in light of everything else the
court members considered on the issue in question.” Tearman, 72 M.J. at 62 (citing
United States v. Gardinier, 67 M.J. 304, 306 (C.A.A.F. 2009)).

       In assessing constitutional error, the question is not whether the admissible
evidence is sufficient to uphold a conviction, but “whether there is a reasonable
possibility that the evidence complained of might have contributed to the conviction.”
Chapman v. California, 386 U.S. 18, 23 (1967), quoted in Blazier, 69 M.J. at 227.

      We find that the admission of the testimonial hearsay was harmless beyond a
reasonable doubt.

        First, the remainder of the scientific evidence in the case was machine-generated
scientific data, such as raw data and calibration charts, absent any testimonial hearsay
associated with it. Dr. H-M interpreted these results based on her own expertise and
firsthand knowledge of the lab and the procedures used there. In her own expert opinion,
she concluded the appellant’s urine sample was positive for the cocaine. In Blazier, the
court held the introduction of some testimonial hearsay did not amount to constitutional
error; the amount of testimonial hearsay in this case is a fraction of the amount admitted
there. See Blazier, 69 M.J. at 226.

       Further, the discussion about the certifying official centered on the fact that the
appellant’s sample was found positive after the initial screening test. Other parts of
Dr. H-M’s testimony established this was the first of two screening tests performed on
the appellant’s sample. She testified that a confirmation test, which utilized a different
type of scientific testing procedure, was also used after the first two screening tests
proved positive. The confirmation test would not have been used unless both screening
tests were positive and the sample would not have been reported as positive unless all
three tests were positive. The defense questioned Dr. H-M extensively about the
scientific tests used by the laboratory: whether they met the prevailing scientific
standards; the possibility of unknowing ingestion; the reliability of initial collection
procedures; the possibility of inadvertent contamination; and many other aspects of the
Air Force’s drug testing procedure including potential flaws or mistakes when humans


                                            6                            ACM S31996 (recon)
operate within the process. Dr. H-M accepted the possibility of errors raised by the
defense’s hypothetical questions but testified that, in her expert opinion, the results in the
appellant’s case were forensically and scientifically reliable.

       In addition to the scientific evidence presented at trial, just after the appellant
found out his sample had tested positive for cocaine, he wrote a letter to his commander
admitting, “I have breached not only my contract, but also the trust and respect of those
who serve above me by testing positive for drug usage in a urinalysis.” He also
apologized “wholeheartedly” and committed to “NEVER again do anything that goes
against the principles of the Air Force.” In finishing the letter, he admitted to having
“made a mistake” and asked for “just one chance to prove [him]self.”

       Besides the appellant’s letter, the Government also presented evidence that
approximately two weeks after his sample was collected, the appellant was escorted to
the Criminal Investigations Division (CID) on Fort Hood, Texas, apparently for
questioning about his drug usage. His escort testified that on the return trip the appellant
was quiet and somber, and he said out loud to himself something to the effect of, “Damn
I f[**]ked up.”

        Having applied the Van Arsdall factors to the facts in this case, we are convinced
that the erroneous admission of testimonial hearsay was harmless beyond a reasonable
doubt. The court members heard a qualified expert explain the machine-generated
printouts produced by the forensic laboratory and specifically related to the appellant’s
urine. They heard Dr. H-M provide an independent opinion that the tests showed the
presence of cocaine. They heard her consider all of the hypothetical problems that could
have occurred within the drug testing process raised by the defense. However, in her
opinion, those problems did not impact the appellant’s testing. The testimonial hearsay
was redundant with the other tests performed on the appellant’s sample by the AFDTL
and was cumulative with the expert’s own opinion. This, coupled with the appellant’s
letter to his commander and his spontaneous statement to his escort after he was
questioned by the CID, virtually eliminated any prejudicial impact the testimonial
hearsay may have had. Therefore, in the posture of this case, we do not find a reasonable
possibility that the evidence complained of might have contributed to the conviction.

                 Regularly Conducted Activity under Mil. R. Evid. 803(6)

       We review a military judge’s ruling on the admissibility of evidence for an abuse
of discretion. United States v. Mott, 72 M.J. 319, 329 (C.A.A.F. 2013). Discretion
represents a range of choices, not a single correct choice. United States v. Gore,
60 M.J. 178, 187 (C.A.A.F. 2004).

      Our sister court tackled this issue in United States v. Byrne, 70 M.J. 611
(C.G. Ct. Crim. App. 2011). There, the Coast Guard Court of Criminal Appeals found


                                              7                             ACM S31996 (recon)
that those portions of the DTR which are not testimonial hearsay, but which qualify as
forensic laboratory reports are specifically admissible under Mil. R. Evid. 803(6). They
found this because the rule specifically recognizes “forensic laboratory reports” in the
examples of admissible evidence. Byrne, 70 M.J. at 621. Indeed, forensic laboratories
are recognized under Mil. R. Evid. 803(6) “as impartial examining centers.”
Drafter’s Analysis, Manual for Courts-Martial, United States, A22-55 (2012 ed.).
Dr. H-M testified that the lab was required to keep the documents in the report, the
documents were kept in the regular course of business at the lab, the information they
contained was of the type the laboratory was regularly required to keep in accordance
with her job, and the documents were maintained in accordance with the laboratory’s
rules for file management. We find Dr. H-M was a “qualified witness” as that term is
used in the rule to lay out the predicate facts for admissibility of the report under
Mil. R. Evid. 803(6).

        Accordingly, we agree with our sister court that when a document meets the
criteria of Mil. R. Evid. 803(6), and it has been sanitized to remove any of its testimonial
character, as it was in this case, it is well within the military judge’s discretion to admit it
as evidence.

                                            Sentencing Argument

        During the sentencing argument, trial defense counsel objected to two comments
made by trial counsel. The first was when he argued that “[t]o not give a bad-conduct
discharge as a punishment is to say that we . . . can accept conduct like this in the
military. And we can’t send that message. It says that this person’s service as a whole
can still be called honorable----.” At this point, the defense’s objection was sustained by
the military judge who instructed the members that a bad-conduct discharge was
“punishment” and it did not have “an equation to members who are not getting in
trouble.” In the presence of the members, the military judge told trial counsel: “[T]o the
extent you’re mischaracterizing a bad-conduct-discharge, I will sustain the objection.”

       Trial counsel later argued to the members that a bad-conduct discharge was
necessary because the appellant “needs to leave the service.” When trial defense counsel
renewed the objection, the military judge overruled it and told the members, “to the
extent the trial counsel’s argument conflicts with my instructions, you are to rely on my
instructions and to defer to them only as to the law.” He later gave the standard
instruction from the military judges’ benchbook.5 During deliberations on sentence, the
members asked whether a bad-conduct discharge was their only option. The judge told
them “that is the only type of discharge you are authorized to adjudge in this case.”



5
    Department of the Army Pamphlet 27-9, Military Judges’ Benchbook (1 January 2010).


                                                        8                                ACM S31996 (recon)
        On appeal appellant argues trial counsel committed error by blurring the lines
between a punitive discharge and an administrative separation. As evidence of this, his
brief cites to letters that three of the five members sent to the convening authority after
the trial stating that a bad-conduct discharge was “not appropriate in this case.”

       “Improper argument is a question of law that we review de novo.”
United States v. Marsh, 70 M.J. 101, 104 (C.A.A.F. 2011); United States v. Pope,
69 M.J. 328, 334 (C.A.A.F. 2011). If we find an error, we must evaluate whether the
error prejudiced the appellant. We do this by balancing the severity of the impropriety
and the military judge’s actions to cure the improper argument with the weight of the
evidence supporting the sentence, “to determine whether the trial counsel’s comments,
taken as a whole, were so damaging that we cannot be confident that the appellant was
sentenced on the basis of the evidence alone.” Marsh, 70 M.J. at 107 (citation and
quotation marks omitted). We evaluate this by considering the record as a whole,
including the relative weight of the parties’ respective sentencing cases. Id.

       Despite the appellant’s assertion, we find no error in this case. First, the military
judge sustained the first objection and directed the members to follow the sentencing
instruction he would give later in the trial. “Court members are presumed to follow the
military judge’s instructions.” United States v. Jenkins, 54 M.J. 12, 20 (C.A.A.F. 2000);
United States v. Taylor, 53 M.J. 195, 198 (C.A.A.F. 2000).

       Second, a review of the court member letters shows they are all variations of the
same basic letter. Indeed, they all have several identical sentences and the same basic
message. All say that he is a good person and deserves mercy. Tellingly, none of them
say they were confused about the difference between a bad-conduct discharge and an
administrative discharge. None of the letters impeached the sentence. Each letter
contained the identical first sentence of paragraph two, which read, “While I do not in
any way condone the behavior that led to his conviction, I believe his is an appropriate
case for clemency.” (emphasis added). It is clear the members were appealing to the
convening authority for clemency, which is something completely different than sentence
appropriateness or evidence of confusion on the part of the members. It is expressly
provided for in the Manual after the members adjudged their sentence in court. See Rule
for Courts-Martial 1105(b)(2)(D). A post-trial recommendation for clemency is not
evidence of an improperly influenced sentence.

       However, even if we assume error, we would find no material prejudice to a
substantial right of the appellant.

       In United States v. Fletcher, 62 M.J. 175 (C.A.A.F. 2005), our superior court
supplied a three-part test to determine if any prejudice occurred because of an improper
sentencing argument. That test examines “(1) the severity of the misconduct, (2) the
measures adopted to cure the misconduct, and (3) the weight of the evidence supporting


                                             9                            ACM S31996 (recon)
the conviction.” Id. at 184. In applying the Fletcher factors in the context of an allegedly
improper sentencing argument, we consider whether “‘trial counsel’s comments, taken as
a whole, were so damaging that we cannot be confident’ that [the appellant] was
sentenced ‘on the basis of the evidence alone.’”             United States v. Erickson,
65 M.J. 221, 224 (C.A.A.F. 2007) (quoting Fletcher, 62 M.J. at 184).

        Applying the above test, we find no prejudice occurred because of trial counsel’s
comments. As discussed supra, any improper statement was minor and objected to by
trial defense counsel, and the military judge gave curative instructions. Additionally, we
are confident the appellant was sentenced on the basis of the evidence alone. He had less
than one year of active duty service and was in the highly structured environment of
military training at the 382d Training Squadron, on Fort Sam Houston, Texas. He was
aware of the Air Force’s standards concerning illegal drug use, but chose to violate them
anyway before completing his technical training. When the members were considering
all of this, including the appellant’s matters in mitigation, they specifically asked if any
other type of discharge could be given. They were properly instructed that their sentence
could only include a bad-conduct discharge or no discharge. They were not confused on
the law but three of them nonetheless recommended clemency, which the convening
authority did not exercise.

        While our responsibility is to ensure that the sentence was correct in law and fact,
it is not our function to exercise clemency. See Article 66, UCMJ, 10 U.S.C. § 866;
United States v. Lacy, 50 M.J. 286, 288 (C.A.A.F 1999); United States v. Healy,
26 M.J. 394, 395–96 (C.M.A. 1988). Given the totality of the circumstances as contained
in the entire record, we find the appellant’s sentence was correct in law and fact and the
appellant was sentenced on the basis of the evidence alone.

                                   Sentence Ambiguity

       The appellant next avers the Government deprived him of due process when it
failed to follow prescribed procedures for resolving an ambiguous sentence. He bases
this argument on United States v. Kosek, 41 M.J. 60 (C.M.A. 1994). This claim has no
merit.

       In Kosek, our superior court found it could not rule on an appeal based on search
and seizure issues because the record was ambiguous as to whether the military judge
actually ruled on certain facts or questions of law. Id. at 64. The answers to those
questions were essential predicate questions which had to be answered before the Kosek
court could rule on the appeal. The court’s solution was to return the case to the military
judge to “make essential findings of fact and conclusions of law so that the record will
reflect the necessary predicate facts and applicable legal principles underlying the
military judge’s ruling.” Id. at 65.



                                             10                           ACM S31996 (recon)
       The appellant also relies on Unites States v. Kaylor, 27 C.M.R. 213 (C.M.A.
1959). There, immediately after announcing the sentence, which included a bad-conduct
discharge, the president of the court-martial announced, sua sponte, “[t]he court
recommends clemency in the above-entitled case. The clemency recommended is that
the portion of the sentence adjudging bad conduct discharge be remitted.” Id. at 214.
The court’s president then gave various reasons for the recommendation. Id.

       Our superior court found the sentence to be ambiguous because of the
“contemporary announcement of clemency in the form of a remission of a portion of the
sentence just adjudged.” Id. at 215. The court also noted there was nothing “to indicate
the court members knew they did not need to impose a bad-conduct discharge.”
Id. at 214. This is because at the time of that court-martial, in 1959, there was no
requirement to give instructions on sentence, and the members had no such instructions.
In that same case, the court distinguished it from United States v. Doherty, 17 C.M.R.
287 (C.M.A. 1954), where the court did not itself find an ambiguous sentence. Doherty
had facts similar to Kaylor, except there the members recommend clemency in the form
of remission of the bad-conduct discharge in clemency submissions prepared by defense
counsel, not contemporaneously with announcement of the sentence, and they received
sentencing instructions regarding punitive discharges.

       Given the above, it is clear the appellant’s argument is misplaced. The members
were instructed on the law. They asked a question about their options regarding
discharges and received clarification. They submitted their clemency recommendation
through trial defense counsel, not spontaneously with the announcement of sentence.
Based on these facts, there is no reason to label their sentence ambiguous. Accordingly,
there is no need to remand the case to either the convening authority or order a new
sentencing procedure as requested by the appellant.

                            Appellate Review Time Standards

        We review de novo “[w]hether an appellant has been denied [his] due process
right to a speedy post-trial review . . . and whether [any] constitutional error is harmless
beyond a reasonable doubt.” United States v. Allison, 63 M.J. 365, 370 (C.A.A.F. 2006).
A presumption of unreasonable delay arises when appellate review is not completed and
a decision is not rendered within 18 months of the case being docketed before this Court.
United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006). The Moreno standards
continue to apply as a case remains in the appellate process. United States v. Mackie,
72 M.J. 135, 135–36 (C.A.A.F. 2013). The Moreno standard is not violated when each
period of time used for the resolution of legal issues between this Court and our superior
court is within the 18-month standard. See id. at 136; United States v. Roach, 69 M.J. 17
(C.A.A.F. 2010). However, when a case is not completed within 18 months, such a delay
is presumptively unreasonable and triggers an analysis of the four factors elucidated in
Barker v. Wingo, 407 U.S. 514 (1972), and Moreno. See United States v. Arriaga,


                                             11                           ACM S31996 (recon)
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 21 November 2011.
After considering the briefs from appellate counsel, this Court rendered its decision on
7 August 2013. The overall delay of more than 540 days between the time of docketing
and review by this Court is facially unreasonable. As stated supra, our superior court
recently decided that one of the judges who participated in that decision was not properly
appointed. See Janssen, 73 M.J. at 222. Accordingly, we have considered the appellant’s
court-martial before a properly constituted panel and issue this decision. The time
between our superior court’s action and this decision did not exceed 18 months;
therefore, the Moreno presumption of unreasonable delay is not triggered for this period
of time. See Mackie, 72 M.J. at 136.

       We analyze the Barker factors for the delay leading up to our decision. The first
factor weighs in favor of the appellant; the length of the delay between docketing and our
decision is presumptively unreasonable and therefore satisfies the first Barker factor. See
Moreno, 63 M.J. at 142. The second factor weighs in favor of the appellant. While the
delay may have been related to the number of personnel assigned to the Court and other
related administrative issues, we are mindful of our superior court’s emphasis that the
established benchmarks do not create a “free” period, and “personnel and administrative
issues . . . are not legitimate reasons justifying otherwise unreasonable post-trial delay.”
Arriaga, 70 M.J. at 57. Third, although the Government carries the burden of primary
responsibility for speedy post-trial processing, United States v. Bodkins, 60 M.J. 322,
323–24 (C.A.A.F. 2004), the appellant did not assert his right to speedy post-trial
processing until 19 May 2014 in his supplemental assignment of error. Even though we
sua sponte addressed the presumptively unreasonable delay in our first opinion, the
appellant did not raise this as an issue in his petition for grant of review. His
submission to our superior court did not include a demand for speedy appellate review.
Finally, on the fourth factor, the appellant fails to demonstrate any prejudice in this case.
“An appellant must demonstrate a ‘particularized anxiety or concern that is
distinguishable from the normal anxiety experienced by prisoners awaiting an appellate
decision.’” Arriaga, 70 M.J. at 58 (quoting Moreno, 63 M.J. at 140). Here, the appellant
has not done so.

        When there is no showing of prejudice under the fourth factor, “we will find a due
process violation only when, in balancing the other three factors, the delay is so egregious
that tolerating it would adversely affect the public’s perception of the fairness and
integrity of the military justice system.” United States v. Toohey, 63 M.J. 353, 362
(C.A.A.F. 2006).



                                             12                            ACM S31996 (recon)
        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 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.

        While we find the post-trial delay was harmless, that does not end our analysis.
Article 66(c), UCMJ, 10 U.S.C. § 866(c), empowers appellate courts to grant sentence
relief for excessive post-trial delay without the showing of actual prejudice required by
Article 59(a), UCMJ, 10 U.S.C. § 859(a). United States v. Tardif, 57 M.J. 219, 224
(C.A.A.F. 2002); see also United States v. Harvey, 64 M.J. 13, 24 (C.A.A.F. 2006). In
United States v. Brown, 62 M.J. 602, 606–07 (N.M. Ct. Crim. App. 2005), our Navy and
Marine Court colleagues identified a “non-exhaustive” list of factors to consider in
evaluating whether Article 66(c), UCMJ, relief should be granted for post-trial delay.
Among the non-prejudicial factors are the length and reasons for the delay; the length and
complexity of the record; the offenses involved; and the evidence of bad faith or gross
negligence in the post-trial process. Id. at 607. We find there was no bad faith or gross
negligence in the post-trial processing in any stage of the appellate review of this matter.
The reason for the delay between 1 August 2013 and our opinion today was to allow this
Court and our superior court to fully consider a constitutional issue of first impression,
namely, whether the Secretary of Defense has the authority under the Appointments
Clause6 to appoint civilian employees to the service courts of criminal appeals. We
conclude sentence relief under Article 66, UCMJ, is not warranted.

                                           Conclusion

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

                                           AFFIRMED



                      FOR THE COURT


                      STEVEN LUCAS
                      Clerk of the Court




6
    U.S. CONST. art. II, § 2, cl. 2.


                                               13                           ACM S31996 (recon)
