         UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                          UNITED STATES

                                                    v.

                             Technical Sergeant DANNY L. ANNIS
                                    United States Air Force

                                          ACM 38001 (rem)

                                          3 September 2015

        Sentence adjudged 22 July 2011 by GCM convened at Fort George G.
        Meade, Maryland. Military Judge: Michael J. Coco.

        Approved Sentence: Bad-conduct discharge.

        Appellate Counsel for the Appellant: Major Daniel E. Schoeni and Major
        Christopher D. James.

        Appellate Counsel for the United States: Lieutenant Colonel Jennifer A.
        Porter; Major Lauren N. DiDomenico; and Gerald R. Bruce, Esquire.

                                                 Before

                              ALLRED, MITCHELL, and TELLER
                                  Appellate Military Judges

                                    OPINION OF THE COURT
                                        UPON REMAND

         This opinion is issued as an unpublished opinion and, as such, does not serve as precedent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



MITCHELL, Senior Judge:

       A general court-martial composed of officer members convicted Appellant,
contrary to his pleas, of one specification of aggravated sexual assault and one
specification of abusive sexual contact, both in violation of Article 120, UCMJ,
10 U.S.C. § 920. The adjudged and approved sentence consisted of a bad-conduct
discharge.
                                  Procedural History

       On 25 June 2013, the Secretary of Defense appointed a civilian employee of the
Department of the Air Force, who was also a retired Air Force officer and a former active
duty appellate military judge, to serve as an appellate military judge on the Air Force
Court of Criminal Appeals. When Appellant’s case was initially before us, Appellant
argued that the military judge erred by preventing him from introducing evidence of the
victim’s prior extramarital affair as evidence of a motive to fabricate. We disagreed and
issued a decision in which we affirmed the findings and sentence. United States v. Annis,
ACM 38001 (A.F. Ct. Crim. App. 19 August 2013) (unpub. op.). The civilian employee
was a member of the panel that decided Appellant’s case.

       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 the earlier appointment was “invalid and of no effect.” On 11 March 2015, our
superior court concluded the improper appointment of the civilian employee by the
Secretary of Defense was not waived by an earlier failure to object. United States v.
Jones, 74 M.J. 95, 97 (C.A.A.F. 2015). Pursuant to Janssen and Jones, our superior court
reversed our decision in this case and remanded it to us for a new review under Article
66, UCMJ, 10 U.S.C. § 866, before a properly constituted panel. United States v. Annis,
___ M.J. ___ No. 14-0125/AF (Daily Journal 30 March 2015). In addition to reviewing
the prior pleadings, we issued an order authorizing Appellant to file supplemental
briefing.

       In light of this ruling by our superior court, we have reviewed Appellant’s case.
Our review includes Appellant’s previous filings alleging error in the suppression of
evidence under Mil. R. Evid. 412, the previous opinion issued by this court, and
Appellant’s supplemental assignment of errors. In the supplemental assignment of errors,
Appellant asserts that the post-trial processing delays between his court-martial in 2011
and this decision in 2015 amount to unreasonable post-trial delay warranting relief. We
disagree on both issues and affirm the findings and sentence.

                                      Background

       Appellant shared an apartment with Staff Sergeant (SSgt) VB in Maryland. In
December 2009, while Appellant was deployed, Ms. AG moved into the apartment with
SSgt VB and began electronic communications with Appellant. The electronic
communication addressed that they would both be living in the same apartment and their
shared interests. One topic was that they could be “cuddle buddies” when they watched
movies together in the apartment. At that time, Ms. AG was separated from her husband,
Senior Airman (SrA) BC. Ms. AG lived in the apartment for about six weeks but then


                                            2                             ACM 38001 (rem)
moved out prior to Appellant’s return from deployment in order to move back in with her
husband, SrA BC.

        Appellant and Ms. AG met in person in March 2010 and then had some personal
social interactions over the ensuing months to include eating pizza while watching a
movie at Appellant’s apartment and a motorcycle ride to a tattoo parlor. Ms. AG did not
consider any of these interactions as dates.

       By October 2010, Ms. AG had again separated from SrA BC. Ms. AG and
Appellant met for drinks and dinner the night of 1 October 2010. During the course of
the evening, Appellant and Ms. AG conversed about a variety of topics. At one point,
they spoke about penis size to include that Ms. AG hated it when women were dishonest:
“the best thing is always honesty, particularly in regard to that.” She also told him “that,
hypothetically, if [she] were in the situation with him [she] would have been honest with
him.”

       Later, Ms. AG concluded that she was too intoxicated to drive and returned with
Appellant to his apartment. They decided to watch a movie in Appellant’s bedroom. Ms.
AG removed her jeans, boots, and bra, wrapped herself in a blanket and lay down on
Appellant’s bed. While in the bed, Ms. AG sent an email to her fiancé, Specialist (SPC)
CG. Appellant reminded Ms. AG of their conversation about penis size and guided her
hand to his penis, and she “told him . . . it was a good size and just left it alone.” Ms. AG
then fell asleep in the bed while they were watching a movie. Ms. AG was awakened
several times throughout the night by Appellant engaging in sexual activity with her;
each time she said, “no,” “stop it,” and/or pushed him away and Appellant would stop.1
The final time was when Appellant had his fingers in her vagina and his thumb in her
anus. Although she attempted to push him away, Appellant “was very forceful this time
and pushed back.”

      The next morning, Ms. AG woke up feeling “fuzzy” and asked Appellant why she
was not wearing any underwear. Appellant chuckled and remarked that he also was not
wearing any underwear. Ms. AG dressed and departed. Appellant called her three times
and sent her two text messages writing, “I feel so bad. Will you ever forgive me?”

       Ms. AG reported the assault to law enforcement who took her to a registered nurse
for a sexual assault forensic medical examination. The nurse identified vaginal and anal
injuries consistent with penetration.




1
 Appellant was acquitted of the other specifications that alleged rape, aggravated sexual contact, aggravated sexual
assault, and sodomy by the use of force or by overwhelming physical strength, in violation of Articles 120 and 125,
UCMJ, 10 U.S.C. §§ 920, 925. All the charges and specifications were a result of Appellant’s acts towards Ms. AG
on the night of 1 October 2010.

                                                         3                                       ACM 38001 (rem)
                     Suppression of Evidence of Ms. AG’s Previous Adultery

        The trial defense counsel filed a timely motion to admit evidence under Mil. R.
Evid. 412. Trial defense counsel explained, “[W]e only want to make sure that in the
course of general questioning we can refer to the two people in her life as they were and
that is that she had, as needed, that she was married to [SrA BC] and that she was dating,
had a special relationship with [SPC CG].” On appeal, Appellant challenges the trial
judge’s decision to suppress the evidence that at the time of the assault Ms. AG was
married to SrA BC and engaging in an adulterous relationship with SPC CG.2

       During the motion hearing, evidence was introduced that, months earlier when
Ms. AG confirmed her previous adulteries to SrA BC, he lost his temper, removed all the
pictures of the two of them from the walls of their abode, smashed the pictures, and set
them on fire.

        The trial judge ruled as inadmissible the evidence that Ms. AG was married to
SrA BC at the time of the incident at the same time she was in a serious relationship with
SPC CG. The trial judge clarified the ruling by stating that the trial defense counsel
could cross examine Ms. AG on the fact that she was married and that she was
disingenuous when asked if she was married, but prohibited the introduction of evidence
of dating and having sexual intercourse with SPC CG while she was married to SrA BC.
Initially, the trial judge also ruled as inadmissible evidence that Ms. AG was in a serious
dating relationship with SPC CG and intended to marry him at the time of the incident.

       The trial defense counsel engaged in a thorough and extensive cross-examination
of Ms. AG. The cross-examination included impeachment with prior inconsistent
statements, and the overall credibility of her claims. Through cross-examination, Ms. AG
admitted that the only reason she did not “hang out” with Appellant more was because
she was dating SPC CG and “he consumed most of [her] time.” Ms. AG stated that while
she was in Appellant’s bed she sent SPC CG an email telling him that she loved him and
signed it, “Your wife.” Ms. AG also admitted that she told SPC CG of the assault before
she reported it to law enforcement, that he was very upset, and that she was concerned
SPC CG “might do something irrational or be very upset if he had run into [Appellant]
walking the streets or something like that.” Ms. AG conceded that she lied to SrA BC
when she was married to him about “very important matters” and that she had similarly
made “misrepresentations” to SPC CG about “very important matters.”

      When Ms. AG testified she volunteered some of the information that was
suppressed by the military judge in the earlier Mil. R. Evid. 412 hearing. Trial defense
counsel asked for clarification on the use of the evidence. Over trial counsel’s objection,
the military judge ruled that the trial defense counsel could use the evidence for the

2
 The trial judge ruled for Appellant on other portions of the Mil. R. Evid. 412 Motion, to include that Ms. AG went
on dates with Appellant while her fiancé, Specialist CG, was deployed.

                                                        4                                       ACM 38001 (rem)
purpose of motive to fabricate, but not for any type of argument about Ms. AG’s
propensity. After making this ruling, the following exchange occurred:

            MJ: Defense counsel, does that satisfy you? Is that what you
            intend to do with it anyways?

            DC: Yes, sir.

       During closing argument, trial defense counsel argued that Ms. AG had a motive
to fabricate because consensual sexual activity between her and Appellant would
endanger the relationship she had with SPC CG, who she had married by the time of trial.
The trial defense counsel earlier introduced this theme during voir dire when the
members agreed that since Ms. AG had a long-time boyfriend at the time of the incident,
her desire to cover up consensual sexual intercourse might provide a motive to lie.

        “We review the military judge's ruling on whether to exclude evidence pursuant to
[Mil R. Evid.] 412 for an abuse of discretion. Findings of fact are reviewed under a
clearly erroneous standard and conclusions of law are reviewed de novo.” United States
v. Ellerbrock, 70 M.J. 314, 317 (C.A.A.F. 2011) (citing United States v. Roberts, 69 M.J.
23, 26 (C.A.A.F. 2010)).

       In Ellerbrock, our superior court determined that based on the unique facts of that
case, evidence of an alleged victim’s previous consensual affair was constitutionally
required to be admitted. Id. at 320. The court explained that the victim did not want her
marriage to end, she was afraid her husband would divorce her after the prior affair, and
she knew that her husband’s reaction to the first affair included kicking down her former
paramour’s door. Id. at 319. “Because evidence of [the wife’s] prior affair was relevant,
material, and the probative value of the evidence outweighed the dangers of unfair
prejudice, the evidence of [her] prior affair was constitutionally required in this case.” Id.
at 320. The court then applied the factors articulated in Delaware v. Van Arsdall, 475
U.S. 673, 684 (1986)3 and determined that the error in excluding the evidence was not
harmless beyond a reasonable doubt because the prosecution’s case was not
overwhelming, the victim’s testimony was crucial, there was conflicting eyewitness
testimony with significant contradictions, and that none of the questions on
cross-examination of the victim concerned the previous affair. Ellerbrock, at 320.

      Although Appellant argues that his case mirrors that in Ellerbrock, the distinction
between that decision and the present case is significant. In Ellerbrock, the court
reasoned that the victim was more likely to lie and state the sexual activity was not

3
  “These factors include the importance of the witness' testimony in the prosecution's case, whether the testimony
was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on
material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the
prosecution's case.” Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986).

                                                        5                                      ACM 38001 (rem)
consensual because she wanted to preserve her marriage and she had heightened concerns
that her husband was more likely to divorce her because of his reaction to her previous
affair. In the present case, Ms. AG was aware that her actual husband, SrA BC, had a
dramatic reaction to finding out she had engaged in adultery; however, by the time of the
incident on 1 October 2010, it is clear that neither she nor her husband were interested in
remaining married. She and SrA BC had separated in July 2010 and had signed a
separation agreement.4 She and SPC CG were in a serious relationship that would
eventually lead to marriage. At that time of the incident, she referred to herself as
SPC CG’s wife, they established an email account together in their married name, and
had serious discussions of marriage although they were not “officially” engaged.

        The trial judge appropriately ruled that the admissible and relevant information
was that Ms. AG was in a committed long-term relationship with SPC CG at the time of
the offense as this provided a potential motive to obfuscate a consensual relationship with
another man. The trial defense counsel was able to use this evidence during argument.
It was not relevant how her soon-to-be ex-husband reacted when he found out about her
previous adulterous affair with SPC CG given that this was an abandoned marriage by the
time of the offense. Likewise, it is not relevant that at the time of the offense she was
still legally married to SrA BC and engaged to SPC CG. This court finds that the trial
judge did not abuse his discretion.

                                 Appellate Review Time Standards

        “Whether an appellant has been denied the due process right to a speedy post-trial
review and appeal, and whether [any] constitutional error is harmless beyond a
reasonable doubt are reviewed de novo.” 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, 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, 530 (1972), and Moreno.
See United States v. Arriaga, 70 M.J. 51, 56 (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 Barker, 407 U.S. at 530.

4
 The “separation agreement” was a document signed by both Senior Airman BC and Ms. AG although it was never
notarized nor filed with any court system.

                                                    6                                    ACM 38001 (rem)
        This case was originally docketed with this court on 14 September 2011 and our
initial decision was issued on 19 August 2013, more than 18 months later. This initial
delay is therefore facially unreasonable. We analyze the Barker factors for the delay
leading up to our 19 August 2013 decision and find no due process violation resulted
from the appellate delay. The length of delay was nearly 23 months, is facially
unreasonable, and thus weighs in favor of Appellant. Appellant did not make any
demand for a speedy appellate review until he filed his supplemental pleading on 4 May
2015. Appellant does not articulate any prejudice resulting from the delay; instead, he
asks this court to infer that the length of the appellate processing has resulted in increased
anxiety which amounts to prejudice. We decline to do 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).

       As for the time that has elapsed since this court’s 19 August 2013 decision, we
find no due process violation. The Moreno standards continue to apply as a case
continues through the appellate process. Mackie, 72 M.J. at 135–36. The time between
our superior court’s action to return the record of trial to our court for our action and this
decision has not exceeded 18 months; therefore, the Moreno presumption of unreasonable
delay is not triggered. See Mackie, 72 M.J. at 136. Furthermore, the reason for the delay
between 19 August 2013 and our opinion today 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 5 to appoint civilian employees
to the service courts of criminal appeals. See Janssen, 73 M.J. at 221. We reject
Appellant’s argument that, because the Secretary of Defense’s appointment of the civilian
employee was invalid and of no effect, the Moreno clock was not tolled by our first
decision.6

       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; see United States v. Harvey, 64 M.J. 13, 24–25 (C.A.A.F. 2006). In United
States v. Gay, 74 M.J. 736, (A.F. Ct. Crim. App. 2015), we identified a list of factors to
consider in evaluating whether Article 66(c), UCMJ, relief should be granted for post-
trial delay. Those factors include how long the delay exceeded appellate review
standards, the reasons for the delay, whether the government acted with bad faith or gross

5
  U.S. CONST. art II § 2, cl 2.
6
  Even assuming the total appellate processing of this case raises a presumption of unreasonable delay, we conclude
the delay is harmless beyond a reasonable doubt. We have 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 that even if there is error, it is harmless beyond a reasonable doubt under the Barker and Toohey analyses.

                                                         7                                        ACM 38001 (rem)
indifference, evidence of institutional neglect, harm to the appellant or to the institution,
if relief is consistent with the goals of both justice and good order and discipline, and can
this court provide any meaningful relief. Gay, at 744. No single factor is dispositive and
we may consider other factors as appropriate. Id.

        After considering the relevant factors in this case, we determine that no relief is
warranted. Although the initial delay exceeded the Moreno standard by five months, no
other time period exceeded the standards. Even analyzing the entire period from the time
the case was first docketed until today, we find there was no bad faith or gross negligence
in the post-trial processing. The reason for the delay after our initial decision was to
allow this court and our superior court to fully consider a constitutional issue of first
impression. While the answer to this issue may seem clear now with the advantage of
subsequent decisions, we note that the appellant’s initial petition to our superior court did
not specify the appointment as an error. We find no evidence of harm to the integrity of
the military justice system by allowing the full appellate review of this novel issue.
Appellant has not articulated any harm. At most Appellant asks us to infer increased
anxiety; we decline to do so. Furthermore, the impact of any delay was mitigated when
we specifically allowed Appellant to file a supplemental assignment of error. We have
the authority to tailor an appropriate remedy without giving Appellant a windfall. See
Tardif, 57 M.J. at 225. Based on our review of the entire record, setting aside
Appellant’s sole punishment of a punitive discharge would be an intolerable windfall.
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
prejudicial to the substantial rights of the appellant occurred.7 Articles 59(a) and 66(c),
UCMJ. Accordingly, the findings and the sentence are AFFIRMED.


                 FOR THE COURT


                 STEVEN LUCAS
                 Clerk of the Court




7
   The court notes the action does not include a date and both the action and the court-martial order (CMO) fail to
reflect the involuntary leave pursuant to Article 76a, UCMJ, 10 U.S.C. § 876a. We assume this was a clerical error
and Appellant was ordered onto excess leave. See Air Force Instruction (AFI) 51-201, Administration of Military
Justice, ¶ 9.38 (6 June 2013). Additionally, the first CMO had typographical errors. We ordered, and were
provided, a corrected Action and CMO. Rule for Courts-Martial 1114; AFI 51–201, ¶ 10.10.

                                                        8                                       ACM 38001 (rem)
