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

                               No. ACM 39161
                          ________________________

                            UNITED STATES
                                Appellee
                                      v.
                       Ladarion D. STANTON
           Airman First Class (E-3), U.S. Air Force, Appellant
                          ________________________

        Appeal from the United States Air Force Trial Judiciary
                         Decided 7 February 2018
                          ________________________

Military Judge: J. Wesley Moore.
Approved sentence: Dishonorable discharge, confinement for 96 months,
forfeiture of all pay and allowances, reduction to E-1, and a reprimand.
Sentence adjudged 10 June 2016 by GCM convened at Joint Base An-
drews, Maryland.
For Appellant: Lieutenant Colonel Nicholas W. McCue, USAF; Major
Annie W. Morgan, USAF; Brian L. Mizer, Esquire.
For Appellee: Major Mary Ellen Payne, USAF; Major Meredith L. Steer,
USAF; Captain Sean J. Sullivan, USAF.
Before JOHNSON, MINK, and DENNIS, Appellate Military Judges.
Senior Judge JOHNSON delivered the opinion of the court, in which
Judge MINK and Judge DENNIS joined.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as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

JOHNSON, Senior Judge:
   Appellant was found guilty by a military judge, in accordance with his
pleas, of one specification of larceny of non-military property in violation of
                    United States v. Stanton, No. ACM 39161


Article 121, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 921. In ad-
dition, a general court-martial composed of officers convicted Appellant, con-
trary to his pleas, of two specifications of sexual assault and one specification
of aggravated sexual contact in violation of Article 120, UCMJ, 10 U.S.C. §
920. 1 The court-martial sentenced Appellant to a dishonorable discharge, con-
finement for 96 months, total forfeiture of pay and allowances, reduction to the
grade of E-1, and a reprimand. The convening authority approved the sentence
as adjudged.
    Appellant raises five assignments of error for consideration on appeal: (1)
The military judge erroneously instructed the court members regarding pro-
pensity pursuant to Military Rule of Evidence (Mil. R. Evid.) 413; (2) The mil-
itary judge informed the court members over Defense objection that Appellant
had been awarded 140 days of confinement credit for illegal pretrial punish-
ment; (3) Appellant is entitled to additional confinement credit for outrageous
Government conduct; (4) Appellant has been denied his due process right to
timely appellate review; and (5) The military judge abused his discretion by
admitting uncharged propensity evidence under Mil. R. Evid. 413. We find Ap-
pellant is not entitled to additional confinement credit, nor has he been denied
his due process right to timely appellate review, and we affirm his Article 121
conviction. However, in light of our superior court’s holding in United States v.
Hills, 75 M.J. 350 (C.A.A.F. 2016), we must set aside Appellant’s Article 120
convictions and his sentence; accordingly, we do not address the remaining as-
signments of error.

                                  I. BACKGROUND
    Appellant entered mixed pleas at his court-martial. He pleaded guilty to
stealing a set of headphones and an iPad, valued at under $500.00, from a dor-
mitory room while performing bay orderly duties on Joint Base Andrews, Mar-
yland. The military judge accepted the plea and entered a finding of guilty as
to that charge and specification (Charge III).
    Appellant pleaded not guilty to the following offenses: one specification of
attempted forcible sodomy (Charge I) and two specifications of sexual assault




1 Sua sponte, pursuant to Rule for Courts-Martial 917 the military judge entered a
finding of not guilty of one specification of attempted forcible sodomy in violation of
Article 80, UCMJ, 10 U.S.C. § 880. The court members also found Appellant not guilty
of two specifications of abusive sexual contact in violation of Article 120, UCMJ, 10
U.S.C. § 920.




                                          2
                   United States v. Stanton, No. ACM 39161


by causing bodily harm against Airman First Class (A1C) CB (Charge II, Spec-
ifications 1 and 2); one specification of abusive sexual contact against A1C AV
(Charge II, Specification 3); and one specification of abusive sexual contact and
one specification of aggravated sexual contact against Senior Airman (SrA)
TDD (Charge II, Specifications 4 and 5). 2 All of the alleged sexual offenses oc-
curred at Joint Base Anacostia-Bolling, District of Columbia, and all three of
the alleged victims were members of Appellant’s unit, the Air Force Honor
Guard. At trial, the parties presented evidence as described below.
A. A1C CB
    A1C CB testified that in June 2015 she attended a party at the on-base
home of A1C JA, another female member of the unit. A1C JA, Appellant, and
two other Honor Guard Airmen were also present. A1C CB described Appellant
as a good friend with whom she had a “brother/sister relationship.” After danc-
ing and drinking alcohol for a period of time, A1C CB felt drowsy and her vision
became blurry. She attempted to go upstairs to rest but, finding it difficult,
stopped and rested on a landing. Shortly thereafter, Appellant helped her up
the stairs, led her to a room without furniture, and laid her on the floor. Ap-
pellant locked the door, removed A1C CB’s pants, digitally penetrated her
vagina, and then penetrated her vagina with his penis for approximately ten
minutes. A1C CB testified she told him “no” one time “very faint[ly],” but oth-
erwise “froze” during the assault. It was painful and A1C CB began crying
softly. She tried to “scoot” away from Appellant on the floor but was unable to
get away from him, in part because Appellant’s hand was on her hair. A1C CB
testified that at one point Appellant removed his penis, touched her mouth
with it, and told her to perform oral sex; she turned away and shook her head,
and he resumed penetrating her vagina.
    A1C CB testified the assault ended when A1C JA attempted to open the
locked door. Appellant stopped, began dressing himself, and told A1C CB to
put her clothes on. Appellant unlocked the door and A1C JA entered. A1C JA
guided A1C CB to another room, where A1C CB told A1C JA what happened.
In the following days A1C CB told several other members of the unit about the
incident; however, she did not initially report it to her chain of command or to
law enforcement. When A1C CB visited a doctor to ensure she had not con-
tracted a sexually transmitted disease, she told the doctor the intercourse was
consensual. A1C CB testified that she suffered nightmares and other effects of
the assault that affected her duty performance. As a result, she eventually in-
formed her supervisor, who notified the unit’s leadership.



2 SrA TDD was an airman first class at the time of the alleged offense but a senior
airman at the time of trial.


                                        3
                  United States v. Stanton, No. ACM 39161


    The Government also called A1C JA, A1C CB’s “best friend,” who described
the party and saw Appellant help A1C CB up the stairs. A1C JA later went
looking for A1C CB and Appellant and eventually noticed the door to one of the
upstairs rooms was locked. A1C JA testified she unlocked and opened the door
and found A1C CB sitting inside, naked from the waist down with her face in
her hands. Appellant was sitting next to her without a shirt on. A1C JA took
A1C CB to another room to get dressed. A1C JA testified A1C CB was crying
and in broken sentences “just kept saying ‘I kept telling him no; it hurt; I
wanted him to stop,’ that kind of stuff.” On cross-examination, A1C JA
acknowledged that, when she first entered the room, A1C CB was not crying
and had a look of “shock or embarrassment” on her face. A1C JA also acknowl-
edged that A1C CB later told her the reason A1C CB eventually reported the
sexual assault was because A1C CB “wanted some free time away from work”
and that A1C JA had not noticed A1C CB having any difficulties performing
her duties. In addition, the Government introduced evidence that both A1C
CB’s blood and Appellant’s DNA were found on the carpet in the room where
the alleged assault took place, testimony from A1C CB’s supervisor and an-
other Airman whom A1C CB informed of the assault, and testimony from two
witnesses who opined that A1C CB had a truthful character.
    The Defense called A1C FK, another Honor Guard Airman who attended
the party and spoke with A1C CB the morning after the alleged assault. A1C
FK recalled A1C CB told him “[Appellant] and her went upstairs and they
locked the door and they were like making out. And then he fingered her and
then he started to have sex with her and she said, ‘stop,’ and he didn’t.” A1C
FK also recalled A1C JA telling him she went upstairs twice looking for Appel-
lant and A1C CB: “The first time she knocked on the door and I believe the
response was like, ‘we’ll be right down.’” When they did not appear after a few
minutes, A1C JA “went back upstairs, knocked, and there was no response, so
then she unlocked the door and opened it and saw [A1C CB] and [Appellant],
like laying on the floor.” A1C FK further testified A1C CB later told him she
eventually reported the sexual assault “to get out of work” and she did not
think it would “blow up into an investigation.”
    The Defense also called Private First Class (PFC) AK, a female Marine
friend of A1C JA and an acquaintance of A1C CB, who attended a gathering at
A1C JA’s house the day after the alleged sexual assault where A1C CB, Appel-
lant, and others were also present. At this gathering, PFC AK recalled that
A1C CB sat next to Appellant and she appeared to be “relaxed” and “having
fun” and being “flirty” with him until Appellant spoke on the phone with his
girlfriend at the time. At that point, A1C CB stopped dancing and became quiet
and “just a little” upset. PFC AK also recalled an occasion prior to the alleged
assault when A1C CB announced during a “truth or dare type game” that she



                                       4
                  United States v. Stanton, No. ACM 39161


wanted to lose her virginity and that she thought about it a lot. Other wit-
nesses testified about their recollections of how A1C CB described the sexual
assault, which varied from A1C CB’s trial testimony in certain respects.
B. A1C AV
     A1C AV testified that one night in July 2015, she was drinking alcohol and
dancing with Appellant and several other male Airmen in the dormitory. A1C
AV was the only female present. The Airmen were playing a drinking game
and A1C AV felt Appellant was pressuring her to drink more. In addition, Ap-
pellant would come up behind her while she was dancing and pull her hips
against his groin, “essentially grinding.” When he did this, A1C AV would “pull
away” and move to a different part of the room. A1C AV remembered moving
to a different dorm room but then “blacked out.” Her next memory was of being
in a bedroom with Appellant “bending [her] over in front of him.” Her next
memory after that was of embracing and kissing Appellant. However, she tes-
tified the kiss was not “mutual” and she pulled away from Appellant when she
“realized who it was” because she was “not attracted” to him. A1C AV testified
she told Appellant she wanted him to stop, but he encouraged her and touched
her buttocks and breast with his hands over her clothing. A1C AV described
herself as “pretty drunk” at this point. She continued to tell him to stop and to
push him away. Eventually, she “got away” from him, laid down on the bed,
and pretended to sleep. Then A1C AV’s roommate, A1C MK, arrived with three
male friends and removed A1C AV from the room. One of those friends later
reported the incident as a sexual assault. On cross-examination, A1C AV
acknowledged that prior to this incident, A1C CB had told her about the al-
leged sexual assault by Appellant in June of 2015. Two Airmen testified to A1C
AV’s character for truthfulness.
    However, other witnesses described a significantly different version of the
incident. A1C TAD, a male friend of A1C AV who was at the gathering and was
not drinking, was the Airman who eventually summoned A1C AV’s roommate,
A1C MK, and two other Airmen to extract A1C AV from the bedroom where
she was with Appellant. He described A1C AV and Appellant as mutually
“grinding on each other” earlier in the evening. Later, he saw Appellant and
A1C AV in the bedroom “standing up, making out” as Appellant touched her
buttocks and breast. They were kissing with A1C AV standing on her toes to
reach Appellant, and it appeared consensual. He later saw them “on the bed
making out,” at which point he went for help. When he and the other Airmen
tried to remove A1C AV, she argued with them because she wanted to stay.
Although A1C TAD did not see anything he thought was “inappropriate” that
night, the next day A1C AV told him she “had no memory of what happened.”
At that point, A1C TAD felt something was “wrong” and reported the incident
to his chain of command. Another witness testified that A1C AV appeared to


                                       5
                   United States v. Stanton, No. ACM 39161


be consensually kissing Appellant in the bedroom. He and other witnesses also
testified to the effect that A1C AV was intoxicated, appeared to be drinking
voluntarily, voluntarily danced provocatively with Appellant, and did not want
to leave the bedroom where she was with Appellant. An investigator testified
that A1C AV told him she knew A1C CB had previously accused Appellant of
sexual assault and that her memory of the July 2015 incident was “fuzzy.” The
Defense also called a forensic psychologist to testify that an individual experi-
encing a memory blackout can nevertheless knowingly and voluntarily do “al-
most everything you can do while sober,” and that individuals who experience
blackouts may “fill in” missing memories based on their own beliefs regarding
how they would or would not have acted.
C. SrA TDD
    SrA TDD testified she had a dating relationship with Appellant between
April and September of 2015. At some point A1C CB told SrA TDD Appellant
“raped” A1C CB at a party; SrA TDD did not know A1C CB well and was “not
sure what to believe.” In September 2015, SrA TDD “broke up” her relationship
with Appellant because she “didn’t want to be in a relationship anymore”; how-
ever, they subsequently had consensual sexual intercourse on multiple occa-
sions. One night in November 2015, SrA TDD invited Appellant to stay in her
dorm on Joint Base Anacostia-Bolling rather than drive back to his room on
Joint Base Andrews because he had been drinking alcohol. SrA TDD went to
bed wearing a bra, shirt, and underwear. Appellant then removed his clothes
and climbed onto the bed. He placed SrA TDD’s hand on his genitals twice.
Each time, SrA TDD told him “no” and to stop, and removed her hand. SrA
TDD testified Appellant then rubbed her thigh and touched her vagina under
her underwear. She hit his hand and again told him to stop. SrA TDD testified
Appellant then rolled her onto her back, held down her arms, and began grind-
ing his penis against her vagina over her underwear. SrA TDD hit Appellant’s
arm and told him to stop, which he did after “a minute or so.” Appellant then
dressed himself and they both remained in the room, sleeping, for the rest of
the night. The next morning, SrA TDD told Appellant he “crossed the line” and
she “didn’t want to talk to him anymore.” SrA TDD did not report the incident
immediately, but eventually did so. Two witnesses testified to SrA TDD’s char-
acter for truthfulness.
     The Defense called A1C CG, who testified SrA TDD told him a somewhat
different version of the incident. According to A1C CG, SrA TDD said Appellant
initially came to her room drunk, took off all his clothes, “and started to feel on
her” and she told him to stop. Appellant “got mad” and “left” but “came back a
little bit later . . . and did the same thing.” According to A1C CG, SrA TDD said
Appellant “came [back] in, took all of his clothes off again, laid down and
started feeling her and she told him no again and he got mad and drove away.”


                                        6
                    United States v. Stanton, No. ACM 39161


D. Uncharged Mil. R. Evid. 413 Evidence
    In addition to PFC AK’s testimony about A1C CB described above, PFC AK
testified on cross-examination about her own interactions with Appellant. Over
defense objection, trial counsel elicited that, after PFC AK had been dancing
and “grinding” with Appellant, he gave her a “light pat” on the “butt” while she
was mixing drinks in A1C JA’s kitchen. PFC AK was not “angry” at this “play-
ful exchange” but told him to stop. After more dancing, Appellant touched her
buttocks with his hand again in what PFC AK characterized as another playful
exchange that did not anger her.
E. Instructions
    At the close of the Government’s case, trial counsel requested the military
judge provide the court members “the [Mil. R. Evid.] 413 propensity instruc-
tion.” The Defense objected to “using the charged offenses as a way to basically
bootstrap the other charged offenses” as “inappropriate in this case.” After the
Defense rested, the military judge sua sponte entered a finding of “not guilty”
pursuant to Rule for Courts-Martial (R.C.M.) 917 as to the alleged attempted
forcible sodomy against A1C CB. The military judge then readdressed the re-
quested Mil. R. Evid. 413 instruction. He declined to give such an instruction
with respect to Specification 3 of Charge III, which alleged the abusive sexual
contact against A1C AV, stating, “I don’t believe that the evidence supports a
finding by a preponderance of the evidence that the offense was actually com-
mitted.” 3 However, the military judge found it was appropriate to instruct that
evidence of the sexual assault offenses involving A1C CB and SrA TDD were
“admissible as to one another” pursuant to Mil. R. Evid. 413, Mil. R. Evid. 403,
and the analysis articulated in United States v. Wright, 53 M.J. 476, 482
(C.A.A.F. 2000).
   Accordingly, the military judge provided, inter alia, the following oral and
written instructions to the court members:
       [E]vidence that the accused committed the sexual offenses al-
       leged in Specifications 1, 2, 4 and 5 of Charge II may have no
       bearing on your deliberations in relation to the other charged
       sexual offenses, unless you first determine by a preponderance
       of the evidence, that is more likely than not, the offense alleged
       in Specifications 1, 2, 4 and 5 of Charge II occurred. If you deter-
       mine by a preponderance of the evidence any of these offenses
       occurred, even if you are not convinced beyond a reasonable


3 The military judge declined to enter a finding of “not guilty” on this specification,
finding that it survived the “minimal” R.C.M. 917 standard for sufficiency to sustain a
conviction.


                                          7
                  United States v. Stanton, No. ACM 39161


      doubt that the accused is guilty of that offense, you may none-
      theless then consider the evidence of those offenses as to which
      you have so determined for its bearing on any matter to which it
      is relevant in relation to the remaining sexual offenses. You may
      also consider the evidence of such other sexual offenses for its
      tendency, if any, to show the accused’s propensity or predisposi-
      tion to engage in sexual offenses as well as its tendency, if any,
      to prove that the accused intended to gratify his sexual desires
      as to those offenses where his intent is in issue and for its ten-
      dency, if any, to rebut any inference that the accused’s partici-
      pation in the sexual offenses charged was the result of mistake.
      You may not, however, convict the accused solely because you
      believe he committed these other offenses or solely because you
      believe the accused has a propensity or predisposition to engage
      in sexual offenses. In other words, you cannot use this evidence
      to overcome a failure of proof in the government’s case, if you
      perceive any to exist. The accused may be convicted of an alleged
      offense only if the prosecution has proven each element beyond
      a reasonable doubt.
      Each offense must stand on its own and proof of one offense car-
      ries no inference that the accused is guilty of any other offense.
      In other words, proof of one sexual offense creates no inference
      that the accused is guilty of any other sexual offense. However,
      it may demonstrate that the accused has a propensity to commit
      that type of offense. The prosecution’s burden of proof to estab-
      lish the accused’s guilt beyond a reasonable doubt remains as to
      each and every element of each offense alleged. Again, proof of
      one charged offense carries with it no inference the accused is
      guilty of any other charged offense.
The military judge gave a similar instruction with respect to PFC AK’s testi-
mony regarding Appellant’s uncharged touching of her buttocks.
   Trial counsel stated the following during her rebuttal findings argument:
       Members, the defense counsel emphasized to take a break in be-
       tween when you’re thinking about each of these specifications
       with each of these different young women and to keep separate
       the evidence and the government does have to prove each ele-
       ment for each specification and prove each specification on its
       own but the military judge has instructed you that you can con-
       sider, you can consider the fact that there are multiple victims
       in this case. The instruction says, “You may also consider the


                                      8
                  United States v. Stanton, No. ACM 39161


       evidence to such other sexual offenses for its tendency, if any, to
       show the accused’s propensity or predisposition to engage in sex-
       ual offenses, as well as its tendency, if any, to show his intent to
       gratify his sexual desires and his lack of mistake in these situa-
       tions.”
       So while the government does have to prove each specification
       on its own you don’t have to keep them completely separate. So
       when you’re thinking about [A1C CB] think about this instruc-
       tion, as well. But the military judge has instructed you that the
       fact that there’s more than one victim in this case shows he’s
       inclined to commit sexual offenses; that that’s what he does, it’s
       character evidence, it’s propensity evidence.
   The court members convicted Appellant of Charge II, Specifications 1, 2,
and 5, alleging the digital and penile sexual assaults against A1C CB and the
aggravated sexual contact against SrA TDD by pressing his penis against her
genitalia. The court members acquitted Appellant of Charge II, Specifications
3 and 4, alleging abusive sexual contact by touching A1C AV’s breast and but-
tocks and SrA TDD’s genitalia with his hand.

                                II. DISCUSSION
A. Mil. R. Evid. 413
   1. Law
   The meaning and scope of Mil. R. Evid. 413 is a question of law that is
reviewed de novo. Hills, 75 M.J. at 354. Instructional errors are also reviewed
de novo. Id. at 357.
    Mil. R. Evid. 413(a) provides that in a court-martial where the accused is
charged with a sexual offense, evidence that the accused committed other sex-
ual offenses may be admitted and considered on “any matter to which it is rel-
evant.” This includes using evidence of sexual assaults to prove the accused
has a propensity to commit sexual assault. United States v. James, 63 M.J.
217, 220 (C.A.A.F. 2006).
   However, in Hills the United States Court of Appeals for the Armed Forces
(CAAF) held that evidence of the accused’s commission of a sexual assault may
not be used in this way if that alleged sexual assault is charged in the same
court-martial and the accused has pleaded not guilty to it. 75 M.J. at 356. The
CAAF further held that the instructions accompanying the admission of evi-
dence of charged offenses for Mil. R. Evid. 413 purposes implicate fundamental
constitutional due process concerns by undermining an accused’s presumption




                                        9
                  United States v. Stanton, No. ACM 39161


of innocence and the Government’s requirement to prove guilt beyond a rea-
sonable doubt. Id. at 357. Because “constitutional dimensions are in play,” prej-
udice for such an error must be tested for harmlessness beyond a reasonable
doubt. Id. In other words, the Government must demonstrate there is no rea-
sonable possibility that the error contributed to the conviction. Id.
    The CAAF has subsequently emphasized that Hills is not to be interpreted
narrowly. See United States v. Hukill, 76 M.J. 219, 222 (C.A.A.F. 2017) (“[T]he
use of evidence of charged conduct as M.R.E. 413 propensity evidence for other
charged conduct in the same case is error, regardless of the forum, the number
of victims, or whether the events are connected.”); see also United States v.
Guardado, 77 M.J. 90, 2017 CAAF LEXIS 1142, at *7–12 (C.A.A.F. 12 Dec.
2017).
   2. Analysis
    We agree with Appellant that, in light of Hills, the military judge erred in
instructing the court members that evidence of the sexual assaults charged in
the same case, to which Appellant had pleaded not guilty, could, under a pre-
ponderance of the evidence standard, be used to find Appellant had a predis-
position or propensity to commit sexual assault and, if relevant, thereby con-
tribute to a finding of guilty. Although the military judge’s ruling is under-
standable in light of commonly-held understandings of Mil. R. Evid. 413 prior
to the CAAF’s decision in Hills, we must “apply the clear law at the time of
appeal, not the time of trial.” United States v. Mullins, 69 M.J. 113, 116
(C.A.A.F. 2010) (citation omitted).
    The Government concedes the military judge erred, but contends “the
strength of the prosecution’s case” rendered the error harmless beyond a rea-
sonable doubt. We cannot agree the error was harmless.
   There were significant weaknesses in the Government’s case supporting
the charges of sexual assault against A1C CB. Several witnesses recalled A1C
CB telling them versions of the incident that differed in certain respects from
her trial testimony. Notably, A1C CB told her doctor the intercourse was con-
sensual. A1C JA testified that when she opened the door to the room, A1C CB
was not crying at that point and may have looked “embarrassed.” A1C CB told
A1C JA and A1C FK she eventually informed her supervisor of the assault
because she wanted time off from work; at trial, A1C CB explained this was
because she was having difficulty performing her duties, but her “best friend”
and co-worker A1C JA noticed no such struggles and no other evidence corrob-
orated this explanation. The Government presented no evidence of any incul-
patory statement by Appellant.
   Similarly, the Government’s case that Appellant committed aggravated
sexual contact against SrA TDD was not overwhelming. According to SrA


                                       10
                   United States v. Stanton, No. ACM 39161


TDD’s own testimony, she and Appellant continued to engage in consensual
sex after they “broke up” in September 2015. On the night of the alleged as-
sault, SrA TDD invited Appellant to sleep in her room and apparently to share
her bed. SrA TDD testified Appellant persisted in making several physical
overtures before holding her by her arms and “grinding” his penis against her
vagina, but he stopped “not long” after she hit his arm and told him to stop. At
that point, Appellant put his clothes back on and slept in her room for the rest
of the night; she did not tell him to leave. Based on the evidence, the military
judge specifically instructed the members “[t]he evidence has raised the issue
of whether [SrA TDD] consented” to the alleged aggravated sexual contact Ap-
pellant was convicted of.
    In addition, trial counsel’s rebuttal argument heightened the risk that the
error contributed to the convictions. She specifically drew the members’ atten-
tion to the erroneous Mil. R. Evid. 413 instruction and invited the members to
rely on it to conclude Appellant had a propensity to commit sexual assault.
Relatedly, the nature of the charges and evidence increased the likelihood the
members were influenced by the error, which directly reinforced one of the es-
sential strengths of the Government’s case: that multiple women accused Ap-
pellant of sexual assault. In trial counsel’s words, “the fact that there’s more
than one victim in this case shows he’s inclined to commit sexual offenses; that
that’s what he does.”
    Furthermore, the same concerns the CAAF articulated in Hills and
Guardado regarding the confusing nature of the Mil. R. Evid. 413 instructions
as to evidence of charged offenses are also present here. “The juxtaposition of
the preponderance of the evidence standard with the proof beyond a reasonable
doubt standard with respect to the elements of the same offenses would tax the
brain of even a trained lawyer.” Hills, 75 M.J. at 358. Thus “the potential for
confusion among members was high,” creating a risk the members applied an
“‘impermissibly low standard of proof.’” Guardado, 77 M.J. 90, at *11 (quoting
Hills, 77 M.J. at 357).
    The Government contends the fact that the members reached a mixed ver-
dict on the charged sexual offenses “demonstrates that the members analyzed
each specification individually and did not allow the evidence supporting a cer-
tain offense to ‘spillover’ into their consideration of the others.” However, the
CAAF rejected such reasoning in Guardado, explaining “[i]t simply does not
follow that because an individual was acquitted of a specification that evidence
of that specification was not used as improper propensity evidence and there-
fore had no effect on the verdict.” 77 M.J. at *9; see also United States v. Silva,
No. ACM 38958, 2017 CCA LEXIS 486, at *18–19 (A.F. Ct. Crim. App. 19 Jul.
2017) (unpub. op.).



                                        11
                  United States v. Stanton, No. ACM 39161


   In light of Hills and considering all the evidence, trial counsel’s argument,
and the instructions, we cannot conclude there is “no reasonable possibility”
the error contributed to the verdict of guilty as to Specifications 1, 2 and 5 of
Charge II. 75 M.J. at 357. Accordingly, we must set aside these findings.
B. Additional Confinement Credit
   1. Additional Background
    Appellant was credited with 192 days of pretrial confinement against his
adjudged sentence. In addition, the Defense sought three-for-one credit for 14
days Appellant spent in civilian pretrial confinement in the Prince George’s
County, Maryland, confinement facility, alleging illegal pretrial punishment
in violation of Article 13, UCMJ, 10 U.S.C. § 813. The Defense offered affidavits
from the two noncommissioned officers who served as Appellant’s escorts to
and from the civilian confinement facility. One of the affiants, Staff Sergeant
(SSgt) SW, provided the following information:
       [Appellant] informed me that during his stay at the county jail,
       he had been placed in a cell by himself. However, in one of the
       cells next to him, he could hear the screaming from another male
       inmate as that inmate was being raped. Upon returning to my
       unit, I informed my and [Appellant’s] commander what [Appel-
       lant] had told me. His response was simply “Good!” indicating he
       was happy [Appellant] had that experience. No remedial actions
       were taken to ensure [Appellant] did not have to witness any
       other such assaults. . . .
SSgt SW and the other affiant, SSgt JR, also described themselves and Appel-
lant being subjected to lewd and threatening gestures in close proximity to un-
restrained inmates and witnessing violent inmates being beaten and subdued
by guards. When the escorts met with their commander shortly before the trial
to provide an update on Appellant, the commander greeted them by asking,
“How is my favorite criminal doing?”
    The Government declined to present any evidence in response. In argu-
ment, trial counsel conceded some credit was appropriate but “request[ed] that
it not be three-for-one.”
   The military judge made his displeasure clear:
       Three-for-one credit is not appropriate in this case. I’m granting
       ten-for-one credit, 140 days of pretrial confinement credit. I can-
       not recall seeing a more startling and utterly offensive disregard
       for the health and welfare and wellbeing of one of our fellow
       members who was at the time presumed to be innocent. There-
       fore, I hesitate to think that even ten-for-one credit is sufficient


                                       12
                     United States v. Stanton, No. ACM 39161


          to communicate how utterly offended I am by the evidence that
          I’ve seen in this regard.
      2. Law
    We review de novo the question of whether an appellant is entitled to credit
for a violation of Article 13, UCMJ. United States v. Fischer, 61 M.J. 415, 418
(C.A.A.F. 2005). “Article 13, UCMJ, prohibits two things: (1) the imposition of
punishment prior to trial, and (2) conditions of arrest or pretrial confinement
that are more rigorous than necessary to ensure the accused’s presence for tri-
al.” United States v. King, 61 M.J. 225, 227 (C.A.A.F. 2005).
   We review de novo alleged Eighth Amendment 4 violations. United States v.
Gay, 74 M.J. 736, 740 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J. 264 (C.A.A.F.
2016). To demonstrate a violation of the Eighth Amendment, an appellant
must show:
          (1) an objectively, sufficiently serious act or omission resulting
          in the denial of necessities; (2) a culpable state of mind on the
          part of prison officials amounting to deliberate indifference to
          [his] health and safety; and (3) that [he] has exhausted the pris-
          oner-grievance system . . . and that he has petitioned for relief
          under Article 138, UCMJ.
United States v. Lovett, 63 M.J. 211, 215 (C.A.A.F. 2006). Pursuant to our broad
authority and mandate under Article 66(c), UCMJ, to approve only so much of
the sentence as we find appropriate in law and fact, we may grant sentence
relief due to the conditions of an appellant’s confinement even in the absence
of an Eighth Amendment or Article 55, UCMJ, violation. Gay, 74 M.J. at 742–
43; see United States v. Tardif, 57 M.J. 219, 223 (C.A.A.F. 2002).
      3. Analysis
    Appellant contends his commander’s “deliberate indifference” to his condi-
tions of confinement violated the Eighth Amendment and seeks 1260 days of
additional confinement credit against his sentence. The Government concedes
the violence Appellant witnessed in the jail was “troubling” and his com-
mander’s comments were “very callous,” but contends Appellant fails to demon-
strate outrageous Government misconduct 5 or cruel or unusual punishment
entitling him to additional confinement credit. We are not persuaded Appellant


4   U.S. CONST. amend. VIII.
5The heading for this issue in Appellant’s brief refers to “outrageous Government mis-
conduct,” but his reliance on Farmer v. Brennan, 511 U.S. 825, 833 (1994), and the
substance of his analysis indicate his claim is based on the Eighth Amendment’s pro-
hibition of cruel or unusual punishment.


                                         13
                    United States v. Stanton, No. ACM 39161


suffered a violation of the Eighth Amendment or is otherwise entitled to addi-
tional confinement credit on appeal.
    Appellant fails to apply the CAAF’s well-established test for Eighth
Amendment violations set forth in Lovett, 63 M.J. at 215. As we apply the three
criteria articulated therein, we cannot find Appellant has demonstrated any
necessity of life that he was denied, any culpable state of mind on the part of
the confinement authorities (as opposed to his commander), or any formal pe-
tition for relief through civilian or military channels. See id. 6 Recognizing our
authority to grant sentence relief, where warranted, even in the absence of
cruel or unusual punishment, we nevertheless find additional confinement
credit is not appropriate here. See United States v. Gay, 75 M.J. 264, 268
(C.A.A.F. 2016). Although the conditions described in the affidavits are dis-
turbing, there is no evidence that Appellant was personally assaulted, physi-
cally harmed, or otherwise suffered any adverse health effects; that his ability
to present a defense at trial was impaired; or that the correctional authorities
responsible for conditions at the facility had any blameworthy intent.
    This is not to say we find nothing to deplore here. Like the military judge,
we are dismayed by the unit commander’s punitive attitude and disregard for
the health and safety of a member of his command, particularly because, as
the military judge noted, Appellant was a pretrial detainee entitled to a pre-
sumption of innocence. However, the unit commander’s intent and inaction di-
rectly implicate Article 13’s prohibition on pretrial punishment rather than the
Eighth Amendment prohibition on cruel or unusual conditions of confinement
attributable to the confinement authorities. Accordingly, the Defense properly
raised and the military judge appropriately addressed this as a matter of ille-
gal pretrial punishment under Article 13, UCMJ. Although the Defense sought
three-for-one credit, the military judge awarded ten-for-one credit, thereby un-
mistakably condemning the commander’s actions (and inaction). In light of the
evidence presented and the Government’s concession that relief was war-
ranted, we find the military judge appropriately exercised his discretion and
further relief is not required.
C. Due Process Right to Timely Appellate Review
    1. Additional Background
   The CAAF’s decision in Hills was issued on 27 June 2016, 17 days after
Appellant’s trial concluded and 102 days before the convening authority took



6 Given Appellant’s failure to make a prima facie showing of an Eighth Amendment
violation, we do not find any post-trial fact-finding is required. See United States v.
Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997).


                                          14
                   United States v. Stanton, No. ACM 39161


action on his court-martial. 75 M.J. 350. Appellant’s clemency request con-
tended the convening authority should grant him a new trial in light of Hills.
The staff judge advocate (SJA) advised the convening authority, inter alia, that
“the breadth of the holding in [Hills] is still unclear and ought to be considered
by the appellate courts before rendering the finding of this court invalid.” The
SJA recommended the convening authority approve the findings and adjudged
sentence. The convening authority did so.
   2. Law
    The CAAF has identified four factors to consider in determining whether
post-trial delay amounts to a violation of due process rights: (1) the length of
the delay; (2) the reasons for the delay; (3) the appellant’s assertion of his right
to a timely review; and (4) prejudice to the appellant. United States v. Moreno,
63 M.J. 129, 135 (C.A.A.F. 2006) (citing United States v. Jones, 61 M.J. 80, 83
(C.A.A.F. 2005), United States v. Toohey, 60 M.J. 100, 102 (C.A.A.F. 2004)). “No
single factor is required for finding a due process violation and the absence of
a given factor will not prevent such a finding.” Id. at 135 (citing Barker v.
Wingo, 407 U.S. 514, 533 (1972)). In Moreno, the CAAF established a presump-
tion of unreasonable post-trial delay where the convening authority does not
take action within 120 days of the conclusion of the trial, where the record of
trial is not docketed with the service court within 30 days of the convening
authority’s action, or where the court of criminal appeals does not issue an
opinion within 18 months of docketing. 63 M.J. at 142. Even if we find no due
process violation, we may exercise our power under Article 66(c), UCMJ, to
grant relief for excessive post-trial delay. Tardif, 57 M.J. at 224.
   3. Analysis
    Appellant concedes that none of the presumptively unreasonable post-trial
processing delays established in Moreno have occurred in his case. However,
he contends that, although none of these presumptively unreasonable delays
have occurred, applying the Moreno and Barker factors to the particular cir-
cumstances of his case establishes a violation of his due process rights. In par-
ticular, Appellant contends the impact of Hills on the findings of his court-
martial should have been clear to the SJA, and “[t]his case is only before this
Court a year [as of the filing of Appellant’s assignments of error] after [Appel-
lant’s] court-martial because the government has simply refused to comply
with Hills.” Therefore, Appellant contends, he has suffered prejudice through
oppressive incarceration, and he requests to have the findings and sentence set
aside or, in the alternative, an order that after any rehearing the convening
authority may approve no sentence in excess of a punitive discharge and two
years of confinement. We are not persuaded.




                                        15
                  United States v. Stanton, No. ACM 39161


    We agree with Appellant that a presumptively unreasonable post-trial de-
lay exceeding the timelines established in Moreno is not the exclusive measure
of unreasonable post-trial delay in violation of an appellant’s due process
rights. See United States v. Swanson, No. ACM 38827, 2016 CCA LEXIS 648,
at *20–21 (A.F. Ct. Crim. App. 27 Oct. 2016) (unpub. op.). We further agree
with Appellant that, in the absence of a violation of the Moreno timelines, the
key factor in this case is the reason for the delay. However, we find this factor
weighs in favor of, not against, the Government. First, although not addressed
by the parties on appeal, the convening authority lacked the authority to set
aside the findings; to disapprove, commute, or suspend either the dishonorable
discharge or the term of confinement; or to order a rehearing. See R.C.M.
1107(c), (d), (e). Even if he possessed such authority, we cannot say the SJA’s
advice to allow the appellate courts to decide the impact of Hills on Appellant’s
case was unreasonable. At the time the convening authority took action, Hills
was a relatively new development in the law, and Hukill and Guardado had
not yet been decided. Directing a new trial at that point would have denied the
Government the opportunity to present a good faith argument on appeal that
the error was harmless in Appellant’s case. Accordingly, after weighing the
applicable factors, we find no due process violation. See Moreno, 63 M.J. at 135.
   We have also considered whether to grant additional relief for post-trial
delay in the absence of a due process violation; we decline to do so. See Tardif,
57 M.J. at 224.

                               III. CONCLUSION
    The findings of guilty as to Charge III and its Specification are AF-
FIRMED. The findings of guilty as to Specifications 1, 2, and 5 of Charge II
and the sentence are SET ASIDE. A rehearing as to the set-aside findings and
as to the sentence is authorized. The record is returned to The Judge Advocate
General for remand to the convening authority for action in accordance with
this opinion.


                 FOR THE COURT


                 KATHLEEN M. POTTER
                 Deputy Clerk of the Court




                                       16
