                         UNITED STATES, Appellee

                                         v.

        Malcolm M. MACK, Aviation Machinist’s Mate Airman
                       U.S. Navy, Appellant

                                  No. 06-0943
                        Crim. App. No. 200400133

       United States Court of Appeals for the Armed Forces

                          Argued March 13, 2007

                          Decided June 19, 2007

EFFRON, C.J., delivered the opinion of the Court, in which
BAKER, ERDMANN, STUCKY, and RYAN, JJ., joined.


                                     Counsel


For Appellant:    Lieutenant Brian L. Mizer, JAGC, USN (argued).


For Appellee: Captain Roger E. Mattioli, USMC (argued);
Commander Paul C. LeBlanc, JAGC, USN (on brief).



Military Judge:    J. S. Brady




            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Mack, No. 06-0943/NA


       Chief Judge EFFRON delivered the opinion of the Court.

       A general court-martial composed of officer and enlisted

members convicted Appellant, contrary to his pleas, of

conspiracy to obstruct justice, breaking restriction (seven

specifications), and wrongfully attempting to influence the

testimony of a witness (three specifications), in violation of

Articles 81 and 134, Uniform Code of Military Justice (UCMJ), 10

U.S.C. §§ 881, 934 (2000).     The sentence adjudged by the court-

martial and approved by the convening authority included a

dishonorable discharge, confinement for six months, hard labor

without confinement for three months, and reduction to pay grade

E-1.    The United States Navy-Marine Corps Court of Criminal

Appeals affirmed the findings of guilty, reduced the

dishonorable discharge to a bad-conduct discharge, and approved

the balance of the sentence.     United States v. Mack, No. NMCCA

200400133, 2006 CCA LEXIS 223 (N-M. Ct. Crim. App. Aug. 28,

2006) (unpublished).

        On Appellant’s petition, we granted review of the following

issues:

        I.    WHETHER THE LOWER COURT ERRED BY HOLDING
              THAT THE MILITARY JUDGE’S DECISION TO SUBMIT
              THE ISSUE OF THE LAWFULNESS OF APPELLANT’S
              RESTRICTION ORDER TO THE MEMBERS WAS
              HARMLESS.

        II.   WHETHER THE EVIDENCE IS LEGALLY INSUFFICIENT
              TO PROVE THAT APPELLANT CONSPIRED WITH JOHN
              DOE TO OBSTRUCT JUSTICE WHERE THERE IS NO


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United States v. Mack, No. 06-0943/NA


           EVIDENCE IN THE RECORD THAT JOHN DOE EVER
           EXISTED.

      III. WHETHER APPELLANT WAS DENIED DUE PROCESS OF
           LAW WHERE THE LOWER COURT DECIDED
           APPELLANT’S CASE 1,830 DAYS AFTER HIS COURT-
           MARTIAL.

For the reasons set forth below, we affirm.



                 I.   PRETRIAL RESTRICTION (ISSUE I)

                            A.   BACKGROUND

1.   The pretrial restriction order

      A servicemember facing criminal charges may be subjected to

various forms of pretrial restraint pending court-martial,

including confinement, arrest, restriction, or conditions on

liberty.   Rule for Courts-Martial (R.C.M.) 304(a).    A pretrial

restriction order generally includes specific conditions

designed to prevent additional criminal misconduct and maintain

accountability of the accused.     R.C.M. 304(c) Discussion.

Various conditions may be ordered if they are “reasonably

necessary to protect the morale, welfare, and safety of the unit

(or the accused); to protect victims or potential witnesses; or

to ensure the accused’s presence at the court-martial or

pretrial hearings.”    United States v. Blye, 37 M.J. 92, 94

(C.M.A. 1993).   For example, the commander may order the

servicemember to remain within specified limits, to report

periodically to a specified official, and not to associate with


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United States v. Mack, No. 06-0943/NA


specified persons.   R.C.M. 304(a)(2); R.C.M. 304(b); R.C.M.

304(a) Discussion.

     Appellant, who was under investigation for selling illegal

drugs during an undercover operation, was placed in pretrial

confinement for thirty-four days.    Subsequently, he was released

after a reviewing officer determined that less restrictive forms

of restraint would suffice.   Following his release from

confinement, Appellant’s commanding officer immediately placed

him on restriction because of information that Appellant was

dealing drugs on the military installation, both at his

workplace and from his car.   The period of pretrial restriction

lasted for 143 days.

     The pretrial restriction order restricted Appellant to

Marine Corps Air Station, New River, North Carolina.   The order

also contained the following conditions:   (1) a requirement to

muster at specified times during work days and at other

specified times on non-work days; (2) a requirement to carry a

log at all times that recorded his musters; (3) a prohibition on

use of the telephone except for monitored calls with his wife

and legal representative; (4) a limitation to supervised visits

with his wife; (5) a prohibition on operating or riding in an

automobile; (6) restriction to his barracks room during non-duty

hours, with limited exceptions; (7) a prohibition on going to

specified shopping, recreational, and entertainment venues on


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United States v. Mack, No. 06-0943/NA


the base, with limited exceptions for supervised visits; (8) a

limitation on exercise to battalion activities; (9) a

prohibition on wearing civilian clothing; (10) a prohibition on

consumption of alcoholic beverages; and (11) a limitation to

eating in the base mess hall, with a requirement that he check

in and out with the staff duty officer.

2. Charges based upon violations of the pretrial restriction
conditions

     A servicemember who violates one or more of the conditions

of pretrial restriction may be charged with an offense under the

Uniform Code of Military Justice.     See Manual for Courts-

Martial, United States pt. IV, paras. 16, 102 (2005 ed.) (MCM).

Appellant was charged with violating three of the conditions of

restriction:   (1) failure to muster; (2) riding in or driving a

car; and (3) making phone calls to individuals other than his

wife and lawyer.   As noted in section I.A.4., infra, Appellant

ultimately was convicted of violating two of the conditions:

failure to muster and riding in or driving a car.

3. Sentence credit based upon the conditions of pretrial
restriction

     Pretrial restriction is not punishment and may not be used

as such.   R.C.M. 304(f).   A person accused of a crime retains

the presumption of innocence and may not be punished pending

trial.   Article 13, UCMJ, 10 U.S.C. § 813 (2000).   If conditions

of pretrial restraint are more rigorous than necessary to ensure


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United States v. Mack, No. 06-0943/NA


the presence of an accused at trial or to prevent additional

misconduct, the accused may receive credit against the adjudged

sentence.   United States v. King, 61 M.J. 225, 227 (C.A.A.F.

2005); United States v. Stringer, 55 M.J. 92, 94 (C.A.A.F.

2001); see also Michael G. Seidel, Giving Service Members the

Credit They Deserve:   A Review of Sentencing Credit and Its

Application, Army Law., Aug. 1999, at 10-14 (discussing credit

for violations of Article 13).

     In a pretrial motion, Appellant asserted that the

conditions of his restriction order did not fulfill a legitimate

military purpose and imposed illegal pretrial punishment in

violation of Article 13.   After conducting a hearing on the

motion, the military judge provided a detailed ruling.     The

military judge found that the command had placed Appellant in

pretrial confinement because of “the risk of flight of the

accused, the detriment to the safety of the training command

with drug distribution to students, and the potential for

retribution against the confidential witness in the undercover

operation.”   After reciting the circumstances involving

Appellant’s release from pretrial confinement and the ensuing

order into pretrial restriction, the military judge concluded

that the command “did not inten[d] to punish him by placing him

in pretrial restriction upon his release from pretrial




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United States v. Mack, No. 06-0943/NA


confinement.   The concerns elicited in evidence were for

legitimate nonpunitive government purposes.”

     Although he did not rule that the decision to place

Appellant on pretrial restriction constituted an illegal order,

the military judge determined that “the facts also bear out

unduly rigorous circumstances during this period of pretrial

restraint.”    The military judge identified three aspects of the

pretrial restriction order that supported his conclusion that

the restriction involved “unduly rigorous circumstances.”

First, after noting that Appellant’s wife was not a suspect, he

concluded that the limitation of Appellant and his wife to

supervised visitations was “not directly linked to a valid,

governmental purpose and intruded on the sanctity of his

marriage, a right which is often protected under a number of

rights in the Constitution of the United States.”

     Second, the military judge concluded that the monitoring of

Appellant’s phone calls to his counsel “chilled his ability and

freedom to speak in a protected environment under the

attorney/client relationship, intruding upon [Appellant’s] . . .

Fifth and Sixth Amendment rights to counsel.”

     Third, the military judge concluded that “the terms of

[Appellant’s] restriction, particularly requirements which did

not directly serve the purpose of ensuring his presence at

trial, were unnecessary and unduly onerous.”    The military judge


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United States v. Mack, No. 06-0943/NA


stated that the command “placed him in an area with persons

serving punishment and persons stigmatized with pending

discharges for misconduct.”   In addition, “[o]ver [Appellant’s]

objections, and while other reasonable accommodations likely

became available, he was restrained from the freedom of

movements [sic] and unduly restricted from activities which

serve no legitimate governmental purpose.”   The military judge

did not address specifically the two conditions of restriction

that Appellant was convicted of disobeying -- the muster

requirement and the prohibition on riding in or driving an

automobile.

     Based upon his conclusion that conditions more rigorous

than necessary had been imposed on Appellant during his period

of pretrial restriction, the military judge granted Appellant

day-for-day credit for the 143 days that he spent on pretrial

restriction.   See Stringer, 55 M.J. at 93 (credit given for

onerous pretrial conditions).   In addition, the military judge

awarded Appellant thirty-four days of sentence credit for the

earlier time that he spent in pretrial confinement.   See United

States v. Allen, 17 M.J. 126, 128 (C.M.A. 1984) (credit given

for time spent in pretrial confinement).




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United States v. Mack, No. 06-0943/NA


4. The defense motion to dismiss the charge of breaking
restriction

     After the military judge granted sentence credit for the

Article 13 violation, and again at the close of the Government’s

case-in-chief, Appellant moved to dismiss the charge of breaking

restriction and its specifications, contending that the

conditions of Appellant’s restriction were unlawful.    As noted

in section I.A.2., supra, Appellant was charged with violating

three conditions of his restriction:    the requirement to muster,

the prohibition on riding in or driving a car, and the

limitation on making phone calls to individuals other than his

wife and lawyer.

     The military judge denied the motion on the grounds that

the legality of Appellant’s restriction presented a “mixed

question of law and fact” that he would submit for decision by

the members of the court-martial panel.    Prior to the panel’s

deliberation on findings, the military judge instructed the

panel members on the elements of breaking restriction, see MCM

pt. IV, para. 102.b., and on the factors bearing on the legality

of the restriction, see R.C.M. 304.     The members acquitted

Appellant of breaking restriction by making telephone calls (two

specifications), but convicted him of breaking restriction by

failing to muster on specific occasions (five specifications)




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United States v. Mack, No. 06-0943/NA

and by riding in or driving a car during the period of

restriction (two specifications).

 B.   THE ROLE OF THE MILITARY JUDGE IN DETERMINING THE LEGALITY
                            OF AN ORDER

      When the legality of an order is at issue, the issue must

be decided by the military judge, not the court-martial panel.

See United States v. Deisher, 61 M.J. 313, 317 (C.A.A.F. 2005)

(citing Article 51(b), UCMJ, 10 U.S.C. § 851(b)(2000)); United

States v. New, 55 M.J. 95, 105 (C.A.A.F. 2001).    As we noted in

Deisher, when the defense moves to dismiss a charge on the

grounds that the charged order was not lawful, “the military

judge must determine whether there is an adequate factual basis

for the allegation that the order was lawful.”    61 M.J. at 318.

We emphasized that if the military judge rules “that a specific

set of words would constitute a lawful order under a specific

set of circumstances, that is a preliminary ruling . . . [that]

does not relieve the prosecution of its responsibility during

its case-in-chief of proving beyond a reasonable doubt the facts

necessary to establish the elements of the offense.”   Id.

      On appeal, we consider the legality of an order under a de

novo standard of review.   Id. at 317.   If the military judge

erroneously submits the issue of legality to the members, we

consider on appeal whether a record has been established that




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United States v. Mack, No. 06-0943/NA

permits us to resolve the question of legality without further

proceedings.   Id. at 319.

                             C.   DISCUSSION

     In the present case, the military judge erred by treating

the legality of the restriction order as a mixed question of

fact and law to be resolved by the members.       As a matter of law,

the presence of factual questions did not relieve the military

judge of his responsibility to decide, as a preliminary matter,

whether the order in the charged offenses was lawful.       Id. at

318; see R.C.M. 905(d).

     Appellant contends that the issue of legality was resolved

at trial adverse to the prosecution when the military judge

granted sentence credit on the grounds that the pretrial

restriction violated the requirements of Article 13.       According

to Appellant, the military judge’s Article 13 ruling, which was

not appealed, constitutes the law of the case, and should

preclude de novo review of the legality of the order.

     The record, however, does not support the defense

contention that the military judge determined the pretrial

restriction order to be void in its entirety.       The pretrial

restriction order consisted of at least eleven separate

conditions.    See section I.A.1., supra.      In the course of ruling

on the defense motion for sentence credit under Article 13, the

military judge commented on a number of specific conditions but


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United States v. Mack, No. 06-0943/NA

did not conclude that the order as a whole was invalid.     See

section I.A.3., supra.    His act of submitting the issue of

lawfulness to the members, while erroneous, underscores that he

did not conclude as a matter of law that the order was unlawful

in its entirety.    Under these circumstances, the law of the case

doctrine does not require us to treat the military judge’s

decision to provide sentencing credit under Article 13 as a

determination that every aspect of the pretrial restriction

order was unlawful.

     The restriction order in the present case does not involve

conditions that are so closely integrated that they must stand

or fall together.   Here, the conditions are sufficiently

distinct that they may be evaluated separately for purposes of

our de novo review of legality.    See Blye, 37 M.J. at 94-95

(considering legality of a condition of restriction under

standards applicable to consideration of the lawfulness of an

order).   Furthermore, the record does not involve the type of

factual disputes that might give us pause about conducting a de

novo review.   See Deisher, 61 M.J. at 318-19.

     Only two of the pretrial restriction conditions resulted in

convictions that are at issue in the present appeal -- the

requirement to muster and the prohibition on riding in or

driving a car.   Neither condition was relied upon expressly by




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United States v. Mack, No. 06-0943/NA

the military judge as a basis for providing sentence credit

under Article 13.

     The essential attributes of a lawful order include:    (1)

issuance by competent authority; (2) communication of words that

express a specific mandate to do or not do a specific act; and

(3) relationship of the order to a military duty.   Id. at 317;

MCM pt. IV, para. 14.c.(2)(a).   “An order is presumed lawful,

and the accused bears the burden of rebutting the presumption.”

Deisher, 61 M.J. at 317.

     In the present case, the first two attributes -- issuance

by a competent authority and the specificity of the

communication -- are not at issue.    Our focus is on the

relationship between the condition at issue and a military duty.

     Muster requirements are often imposed as a condition of

pretrial restriction.   See United States v. Hudson, 59 M.J. 357,

360 (C.A.A.F. 2004) (addressing a pretrial restriction order

that included a muster provision); United States v. McCarthy, 47

M.J. 162, 163 (C.A.A.F. 1997) (addressing a pretrial restriction

order that required twice-daily muster); United States v.

Cherok, 22 M.J. 438, 439 (C.M.A. 1986) (holding that a pretrial

restriction with hourly muster requirement was not so onerous as

to constitute confinement).   Muster serves the military’s need

for accountability of personnel and allows detainees to continue

to work, attend appointments, participate in physical training,


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United States v. Mack, No. 06-0943/NA

and attend meals without the burden of constant supervision.

Appellant has not rebutted the presumption of lawfulness by

demonstrating that the muster requirement in the present case

did not fulfill a military duty or that it was otherwise

unlawful.

     The prohibition against riding in or driving a car also was

imposed because Appellant was suspected of selling drugs from

cars and meeting potential drug customers in cars.    His

commander sought to prevent him from continuing to engage in

drug sales from vehicles.   This condition was imposed to ensure

that Appellant remained on the installation, was available for

trial, and did not engage in additional misconduct.   Appellant

has not rebutted the presumption of lawfulness by demonstrating

that this condition did not fulfill a military duty or that it

was otherwise unlawful.

     In light of the foregoing considerations, we conclude under

the circumstances of this case that the military judge’s error

in submitting the question of lawfulness of the conditions of

restriction to the panel members was harmless.   See United

States v. Alameda, 57 M.J. 190, 199-200 (C.A.A.F. 2002).




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United States v. Mack, No. 06-0943/NA

           II.   CONSPIRACY TO OBSTRUCT JUSTICE (ISSUE II)

                            A.   BACKGROUND

     Appellant was charged with selling cocaine to Mr. D, a

known drug dealer who was cooperating with Naval Criminal

Investigative Service.     In addition, Appellant was charged with

a number of related offenses concerning his interaction with Mr.

D, including communicating three separate threats to kill Mr. D

or his family if Mr. D testified at Appellant’s court-martial,

and conspiring with “John Doe” to obstruct justice by

threatening to kill Mr. D.

      At trial, the prosecution introduced the following

evidence with respect to the charged conspiracy and related

threats.    Mr. D, the cooperating witness, lived with his mother.

During the two months before Appellant’s court-martial, Mr. D’s

mother received three telephone calls and a package threatening

violence if Mr. D testified at Appellant’s court-martial.      The

first two telephone calls were traced to Appellant’s home phone

number.    The package was addressed to Mr. D and contained two

9mm bullets with Mr. D’s name attached.       The package included

the following note:

     Don’t be stupid! They can’t and won’t protect you.
     Especially with people like [various names] . . .
     after you. We hear they’ve got about $10,000 for your
     head. But, that’s the least of your worries. If you
     show to F[. . .] over my partner, I promise that ten-
     grand will be collected ASAP. We’ll also see to it
     that your address and number be well known. So be


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United States v. Mack, No. 06-0943/NA

     smart . . . live and let live, or BE A DEAD HERO!!!!
     They’ve used you, don’t let them get you KILLED!!!!!.

     Subsequently, Mr. D’s mother received a third telephone

call, which she recorded on her answering machine.   She

testified that a male voice asked “Did you get my mail?”    The

male voice also said “don’t be brave” and used the word “dead.”

Then she heard what appeared to be the sound of a person taking

the phone away from the male caller, and a female voice saying

“Not on the phone . . . Don’t say that.”   The female voice then

spoke into the phone, saying “Bitch don’t call.   My number is

404-***-*****.”   Mr. D testified that he listened to the

recorded message and identified the male caller as Appellant.

Mr. D stated that the threats made him feel “uneasy” about

testifying at Appellant’s court-martial.

     The prosecution argued that the conspiracy charge was

supported by the evidence that someone mailed the threatening

package to Mr. D’s mother on Appellant’s behalf, and by the

evidence that the third telephone call was made by Appellant and

an unknown female asking whether the mail was received,

accompanied by further threats.

     With respect to the conspiracy charge, the military judge

instructed the members that they must be convinced beyond a

reasonable doubt that:   (1) Appellant entered into an agreement

with an unknown person to commit an obstruction of justice; and



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United States v. Mack, No. 06-0943/NA

(2) while the agreement continued to exist, Appellant, the

unknown person, or both threatened to kill Mr. D or his family

if he testified against Appellant at the court-martial.   See MCM

pt. IV, para. 5.b. (elements of conspiracy); MCM pt. IV, para.

96.b. (elements of obstruction of justice).

     The panel members convicted Appellant of conspiring with

“John Doe” to obstruct justice by threatening Mr. D.   The

members also convicted Appellant of three specifications of

communicating a threat, based on the two telephone calls traced

to Appellant’s phone and the package containing the note and

bullets.

                      B.   LEGAL SUFFICIENCY

     Appellant contends that the evidence was insufficient as a

matter of law to show that he conspired with another person to

commit the offense of obstruction of justice.   Appellant points

out that the evidence did not show that any person other than

Appellant mailed the package with the threatening note.   In that

regard, the findings indicated that Appellant mailed the package

and made the first two threatening phone calls.

     Appellant further contends that the existence of a

conspiracy with another person could not be established by the

third telephone call to Mr. D’s mother, which featured the

voices of both Appellant and an unknown female.   Appellant

asserts that this evidence is insufficient because he was


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United States v. Mack, No. 06-0943/NA

charged with conspiring with “John Doe,” not a female, and

because the content of the third telephone call did not

demonstrate a prior conspiracy.

     The standard for determining the legal sufficiency of

evidence supporting a guilty verdict is “whether, after viewing

the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.”   Jackson v. Virginia,

443 U.S. 307, 318-19 (1979); see United States v. Turner, 25

M.J. 324, 324-25 (C.M.A. 1987).

     The prosecution is not required to establish the identity

of co-conspirators or their particular connection with the

criminal purpose.   MCM pt. IV, para. 5.c.(1).    The agreement in

a conspiracy need not be in any particular form or manifested in

any formal words.   MCM pt. IV, para. 5.c.(2); United States v.

Cobb, 45 M.J. 82, 84 (C.A.A.F. 1996).   It is sufficient if the

agreement is “merely a mutual understanding among the parties.”

Cobb, 45 M.J. at 85 (citing United States v. Barnes, 38 M.J. 72,

75 (C.M.A. 1993)) (quotation marks omitted).     The existence of a

conspiracy may be established by circumstantial evidence,

including reasonable inferences derived from the conduct of the

parties themselves.   Id.; MCM pt. IV, para. 5.c.(2).

     Considering the evidence in the light most favorable to the

prosecution, a rational factfinder could have found beyond a


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United States v. Mack, No. 06-0943/NA

reasonable doubt that Appellant and the female caller had an

agreement to threaten Mr. D with violence and intimidate him

from testifying at Appellant’s court-martial.   The members could

have concluded that the woman recorded on the third telephone

call was coaching Appellant in an attempt to make their threats

credible.   She was heard instructing him not to mention the

package.    The members could have determined that the female

listed a nonexistent telephone number to confuse Mr. D’s mother

or to obscure the caller’s identity.    Moreover, the woman

threatened Mr. D’s mother directly by saying, “Bitch, don’t call

me.”   This evidence, taken together, could have led a rational

factfinder to the conclusion that Appellant and the unknown

female were working together to frighten Mr. D from testifying

against Appellant at his court-martial.   The fact that the co-

conspirator in this case was not a male “John Doe” as alleged in

the specification to Charge I, but instead was a female, carries

no legal significance.

       We conclude that the third threatening telephone call to

Mr. D’s mother -- in light of the package and the threatening

note mailed to her -- provided sufficient evidence for a

rational factfinder to determine that Appellant conspired with

an unknown female to obstruct justice by threatening harm to Mr.

D or his family.   See Jackson, 443 U.S. at 319.   In view of our

conclusion, we need not determine whether any of the other


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United States v. Mack, No. 06-0943/NA

evidence of threatening actions provided legally sufficient

evidence of a conspiracy.



              III.   POST-TRIAL AND APPELLATE DELAY

     We review de novo Appellant’s claim that he was denied his

due process right to a speedy post-trial review and appeal.

United States v. Moreno, 63 M.J. 129, 135 (C.A.A.F. 2006).      The

court below noted that the post-trial processing of the case

involved unreasonable and unexplained delay, and provided relief

under the court’s sentence appropriateness authority by reducing

the dishonorable discharge to a bad-conduct discharge.    See

United States v. Tardif, 57 M.J. 219, 223-24 (C.A.A.F. 2002);

Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2000).

     With respect to the overall post-trial and appellate

period, we review a claim of a due process violation under the

test set forth in Moreno, 63 M.J. at 135-36.    Assuming an

unreasonable length of time and a timely assertion of the right

to speedy appellate review, Appellant has not established either

that he was denied timely review of a meritorious appellate

issue or that he otherwise suffered cognizable prejudice.     Under

these circumstances, we decline to provide relief beyond that

granted at the court below under Tardif.     See United States v.

Allison, 63 M.J. 365, 370 (C.A.A.F. 2006).




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                         IV.   CONCLUSION

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




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