          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                        UNITED STATES

                                                    v.

                              Airman Basic ANDRE G. GNASH
                                  United States Air Force

                                       ACM S32067 (recon)

                                           22 August 2014

         Sentence adjudged 21 May 2012 by SPCM convened at Moody
         Air Force Base, Georgia. Military Judge: Joshua E. Kastenberg (sitting
         alone).

         Approved sentence: Bad-conduct discharge, confinement for 6 months, and
         forfeiture of $750 pay per month for 6 months.

         Appellate Counsel for the Appellant: Captain Christopher D. James.

         Appellate Counsel for the United States: Major Daniel J. Breen; and Gerald
         R. Bruce, Esquire.

                                                 Before

                            ALLRED, HECKER, and MITCHELL

                                     Appellate Military Judges

                                  OPINION OF THE COURT
                                 UPON RECONSIDERATION

                   This opinion is subject to editorial correction before final release.



PER CURIAM:

        A military judge, sitting alone as a special court-martial, found the appellant
guilty, pursuant to his pleas, of desertion and failing to obey a lawful order to remain
within the limits of Moody Air Force Base, Georgia in violation of Articles 85 and 92,
UCMJ, 10 U.S.C. §§ 885, 892. The adjudged sentence was a bad-conduct discharge,
confinement for 6 months, forfeiture of $750 pay per month for 6 months, and a
reprimand.    The convening authority approved the entire sentence except for the
reprimand.

                                    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.

       During the initial appellate review of this matter, the appellant did not raise any
assignments of error and submitted his appeal on the merits. We issued our first decision
on 13 February 2013, affirming the findings and sentence. United States v. Gnash,
ACM S32067 (A.F. Ct. Crim. App. 13 February 2013) (unpub. op.). Mr. Soybel was part
of the panel that issued the decision.

       The appellant then petitioned our superior court for review, but did not identify
any issues. The Court denied the appellant’s petition for a grant of review on
16 May 2013. United States v. Gnash, 72 M.J. 385 (C.A.A.F. 2013) (mem.). On
11 June 2013, the appellant filed a petition for extraordinary relief in the nature of a writ
of error coram nobus with our superior court regarding the appointment of Mr. Soybel to
our court. The court denied that petition “without prejudice to re-filing the petition
before the United States Air Force Court of Criminal Appeals.” United States v. Gnash,
72 M.J. 408 (C.A.A.F. 2013) (mem.).

       On 20 June 2013, the appellant filed the same petition for extraordinary relief with
this Court, asking us to vacate our prior decision and reconsider the case with a “legally
constituted panel.” Meanwhile, 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).

       On 2 July 2013, we granted the appellant’s petition for extraordinary relief and
vacated our prior decision. That same day, we reconsidered the decision and affirmed the
approved findings and sentence. United States v. Gnash, ACM S32067 (recon)
(A.F. Ct. Crim. App. 2 July 2013) (unpub. op.). Mr. Soybel was again a member of the
panel. The appellant then petitioned the Court of Appeals for the Armed Forces for the
second time. On 3 October 2013, our superior court denied the petition for review



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without prejudice, noting that the appellant had filed a motion to vacate with this Court
on 3 September 2013. United States v. Gnash, 73 M.J. 75 (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 civilian employees as 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 appellant’s motion for reconsideration on
29 April 2014 and permitted the appellant to file a supplemental assignment of errors. In
a supplemental assignment of error, the appellant asserted he is entitled to relief due to
unreasonable appellate delay. 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. We affirm the findings and sentence in this matter.

                            Appellate Review Time Standards

       The appellant argues his due process right to speedy appellate processing was
violated under United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006), and
United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002), because more than 18 months
have passed since the record of trial was originally docketed with our Court in July 2012.

        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.
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).
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, 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 with this Court on 2 July 2012. This Court
rendered an initial decision on 13 February 2013 and a decision on reconsideration on
2 July 2013. Neither of these decisions were issued more than 18 months after docketing;


                                             3                            ACM S32067 (recon)
therefore, there is no Moreno presumption of unreasonable delay in our original review of
the case. As stated earlier in this opinion, our superior court recently decided that one of
the judges who participated in those decisions was not properly appointed, and
subsequently the appellant’s case remained in the appellate process. The time between
our superior court’s action to return the record of trial to our Court for our action and this
decision did not exceed 18 months; again, the Moreno presumption of unreasonable delay
is not triggered. See Mackie, 72 M.J. at 136. Assuming the total appellate processing of
this case raises a presumption of unreasonable delay, we conclude the delay was harmless
under the Barker analysis.

        While we find the post-trial delay was harmless, that does not end our analysis.
Article 66(c), UCMJ, empowers appellate courts to grant sentence relief for excessive
post-trial delay without the showing of actual prejudice required by Article 59(a), UCMJ,
10 U.S.C. § 859(a). Tardif, 57 M.J. at 224; see also United States v. Harvey, 64 M.J. 13,
24 (C.A.A.F. 2006). In United States v. Brown, 62 M.J. 602, 606–07 (N.M. Ct. Crim.
App. 2005), our Navy and Marine Court colleagues identified a “non-exhaustive” list of
factors to consider in evaluating whether Article 66(c), UCMJ, relief should be granted
for post-trial delay. Among the non-prejudicial factors are the length and reasons for the
delay; the length and complexity of the record; the offenses involved; and 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 was to allow this Court and our superior
court to fully consider a constitutional issue of first impression: whether the Secretary of
Defense has the authority under the Appointments Clause * to appoint civilian employees
to the service courts of criminal appeals. We conclude that 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; United States v. Reed, 54 M.J. 37, 41 (C.A.A.F. 2000). Accordingly,
the approved findings and sentence are AFFIRMED.


                     FOR THE COURT


                     STEVEN LUCAS
                     Clerk of the Court



*
    U.S. CONST. art II § 2, cl 2.


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