          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                        UNITED STATES

                                                    v.

                 Airman First Class JACINTA-MARIE R. TOMPKINS
                                United States Air Force

                                        ACM 37627 (recon)

                                           18 August 2014

         Sentence adjudged 30 September 2009 by GCM convened at Goodfellow
         Air Force Base, Texas. Military Judge: Michael J. O’Sullivan and
         Michael A. Lewis (certificate of correction).

         Approved sentence: Bad-conduct discharge, confinement for 24 months,
         forfeiture of all pay and allowances, and reduction to E-1.

         Appellate Counsel for the Appellant:        Colonel Eric N. Eklund;
         Lieutenant Colonel Gail E. Crawford; Major Michael S. Kerr;
         Captain Travis K. Ausland; and Captain Thomas A. Smith.

         Appellate Counsel for the United States: Colonel Katherine E. Oler;
         Lieutenant Colonel Linell A. Letendre; Lieutenant Colonel C. Taylor Smith;
         Major Daniel J. Breen; Major Deanna Daly; Major Rhea A. Lagano;
         Major Naomi N. Porterfield; and Gerald R. Bruce, Esquire.

                                                 Before

                             ALLRED, MITCHELL, and WEBER
                                 Appellate Military Judges

                                  OPINION OF THE COURT
                                 UPON RECONSIDERATION

                   This opinion is subject to editorial correction before final release.



PER CURIAM:

       The appellant was convicted at a general court-martial, in accordance with her
pleas, of attempted larceny, making a false official statement, using marijuana, larceny,
making checks with the intent to defraud, and passing worthless checks, in violation of
Articles 80, 107, 112a, 121, 123a, and 134, UCMJ, 10 U.S.C. §§ 880, 907, 912a, 921,
923a, 934. A panel composed of officer members sentenced her to a bad-conduct
discharge, confinement for 24 months, forfeiture of all pay and allowances, and reduction
to E-1. The convening authority approved the sentence as adjudged.

                                              Procedural History

       On 25 January 2013, The Judge Advocate General of the Air Force appointed
Mr. Laurence M. Soybel to the position of appellate military judge on the Air Force
Court of Criminal Appeals pursuant to Article 66(a), UCMJ, 10 U.S.C. § 866(a). At the
time of this appointment, Mr. Soybel, a retired Air Force officer and former appellate
military judge, was serving as a civilian litigation attorney in the Department of the
Air Force. On 25 June 2013, the Secretary of Defense, “[p]ursuant to [his] authority
under title 5, United States Code, section 3101 et seq.,” issued a memorandum that
“appoint[ed] Mr. Laurence M. Soybel, a civilian employee of the Department of the
Air Force, to serve as appellate military judge on the Air Force Court of Criminal
Appeals.” Memorandum from Sec’y of Def. Chuck Hagel for Sec’y of the Air Force
Eric Fanning (25 June 2013).

       When the appellant’s case was initially before us, the appellant assigned errors
concerning: (1) the authentication of appellate exhibits in the record of trial1; (2) the
military judge’s refusal to recuse himself; (3) the conditions of pretrial confinement;
(4) the military judge’s denial of a motion to dismiss based on speedy trial; and
(5) post-trial processing delay.

       On 18 April 2013, we issued a decision denying the appellant relief. United States
v. Tompkins, ACM 37627 (A.F. Ct. Crim. App. 18 April 2013) (unpub. op.). Mr. Soybel
was a member of the panel that decided the case. Following Mr. Soybel’s appointment
by the Secretary of Defense on 25 June 2013, we reconsidered the decision sua sponte
and on 22 July 2013 issued a new opinion upon reconsideration. United States v.
Tompkins, ACM 37627 (recon) (A.F. Ct. Crim. App. 22 July 2013) (unpub. op.).
Mr. Soybel was again a member of the panel. On 5 September 2013, the appellant
moved to vacate the decision on the basis of Mr. Soybel’s participation; on
23 September 2013, the appellant petitioned our superior court for review of her case.
On 31 October 2013, our superior court converted the appellant’s motion to vacate,
which was pending before our Court, into a motion for reconsideration. See United
States v. Tompkins, 73 M.J. 91 (C.A.A.F. 2013) (mem.). On 15 April 2014, our superior
court issued its decision in United States v. Janssen, 73 M.J. 221, 225 (C.A.A.F. 2014),
holding that the Secretary of Defense did not have the legislative authority to appoint

1
  After the appellant submitted her assignment of errors, we ordered that the record be returned to the convening
authority for a certificate of correction and new post-trial processing to address the concerns raised by the appellant
regarding the completeness of the record of trial. The convening authority complied with the order and returned the
completed record. This action renders the first issue moot.


                                                          2                                       ACM 37627 (recon)
appellate military judges and that his appointment of Mr. Soybel to this Court was
“invalid and of no effect.”

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

                          Disqualification of the Military Judge

       The appellant asked the military judge to disqualify himself based on a prior
supervisory relationship with the detailed trial counsel. The military judge candidly
responded to extensive questioning by trial defense counsel concerning the matter and
stated that nothing about the prior supervisory relationship would affect his fairness and
impartiality in the appellant’s case. The military judge entered detailed findings of fact
and conclusions of law to support his denial of the motion.

       We review the military judge’s decision on disqualification for an abuse of
discretion. United States v. Wright, 52 M.J. 136, 141 (C.A.A.F. 1999). In Wright, our
superior court found no abuse of discretion in a military judge’s refusal to disqualify
himself based on a past working relationship with a law enforcement agent who was a
material witness and for whom the military judge had high regard. Id. The Court
emphasized the military judge’s “full disclosure, sensitivity to public perceptions, and
sound analysis,” in finding that “the judge’s impartiality could not reasonably be
questioned.” Id. at 142. Such is the case here. The military judge stated that the reason
he raised the issue on the record was to ensure a public perception of fairness and, in his
conclusions of law, stated that a reasonable person with knowledge of all the
circumstances would not reasonably question his impartiality. We find no abuse of
discretion in his decision.

                                   Pretrial Punishment

       The appellant argues that the military judge erred by denying additional pretrial
confinement credit based on unlawful pretrial punishment. The appellant cited four bases
to support her claim for additional credit: (1) denial of necessary medical care, (2) failure
by the unit to visit her monthly, (3) failure to segregate her from adjudged prisoners, and
(4) failure to provide clothing distinct from adjudged prisoners. The military judge
entered detailed findings and conclusions to support his denial of the motion.


                                             3                              ACM 37627 (recon)
       Article 13, UCMJ, 10 U.S.C. § 813, prohibits purposefully imposing punishment
before conviction as well as imposing pretrial confinement conditions more rigorous than
necessary to ensure presence at trial. United States v. Fricke, 53 M.J. 149, 154 (C.A.A.F.
2000) (citing United States v. McCarthy, 47 M.J. 162, 165 (C.A.A.F. 1997)). Where the
request for relief is based on a claim that the conditions imposed were more rigorous than
necessary, the appropriate inquiry is whether the conditions were reasonably related to a
legitimate governmental objective or operating policy of the facility; if not, we may infer
an intent to punish. United States v. James, 28 M.J. 214, 216 (C.M.A. 1989) (quoting
Bell v. Wolfish, 441 U.S. 520, 535 (1979)). Unduly rigorous conditions may be so
egregious as to give rise to an inference of punishment or so excessive as to amount to
punishment. McCarthy, 47 M.J. at 165.

       We review the issue as a mixed question of law and fact, and defer to the findings
of fact by the military judge unless clearly erroneous. Id. at 164–65; United States v.
King, 61 M.J. 225, 227 (C.A.A.F. 2005). We review de novo the conclusions based on
those facts. United States v. Smith, 53 M.J. 168, 170 (C.A.A.F. 2000). Violations of
service regulations prescribing treatment of pretrial prisoners do not trigger a per se right
to additional credit, but credit may be warranted when such violations are deliberate and
knowing. United States v. Adcock, 65 M.J. 18, 25 (C.A.A.F. 2007). The appellant has
the burden of establishing her entitlement to relief under Article 13, UCMJ. United
States v. Mosby, 56 M.J. 309, 310 (C.A.A.F. 2002).

       Applying the above standards, we find that the appellant is not entitled to
additional pretrial confinement credit based on unlawful pretrial punishment under
Article 13, UCMJ. Further, we find no abuse of discretion in the denial of additional
credit for unusually harsh conditions under Rule for Courts-Martial (R.C.M.) 305(k).
Although some conditions violated Air Force Instructions regarding treatment of pretrial
prisoners, we agree with the military judge that the evidence fails to show an intent to
punish or that the violations were deliberate and knowing. Finally, considering the
violations in the overall context of the case, we find additional relief is not warranted
under Article 66(c), UCMJ. See United States v. Zarbatany, 70 M.J. 169 (C.A.A.F.
2011).

                                       Speedy Trial

       The military judge denied the appellant’s motion to dismiss based on denial of
speedy trial. When an accused is held in pretrial confinement, the Government must
show reasonable diligence in moving toward trial. Article 10, UCMJ, 10 U.S.C. § 810;
United States v. Schuber, 70 M.J. 181, 188 (C.A.A.F. 2011). Alleged violations of
Article 10, UCMJ, are evaluated using the four factors identified in Barker v. Wingo,
407 U.S. 514, 530 (1972): “(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


                                              4                             ACM 37627 (recon)
appellant.” United States v. Mizgala, 61 M.J. 122, 129 (C.A.A.F. 2005). We review de
novo whether the appellant was denied the right to a speedy trial as a matter of law and
are bound by the facts found by the military judge unless they are clearly erroneous.
Barker, 407 U.S. at 530.

        Applying the first of the four Barker factors, we do not find the length of delay
facially unreasonable. In his findings of fact, the military judge noted that the case
involved 66 criminal acts involving 21 named victims, 5 corporations, and several
banking institutions. We agree with the military judge that this was a complex case
requiring many steps to get to trial, and that the Government “treated the case with
urgency.” Having found the length of delay reasonable, we need not inquire into the
remaining Barker factors. See Schuber, 70 M.J. at 189. Nevertheless, analysis of the
remaining factors confirms that the appellant was not denied her right to a speedy trial
under Article 10, UCMJ.

        First, unlike the relatively straightforward urinalysis case at issue in Schuber,
where the Court found 71 days from pretrial confinement to trial not facially
unreasonable, this is a complex theft and financial crimes case with multiple victims and
items of physical and documentary evidence that required examination.                    See
70 M.J. at 188. Second, the appellant’s demand for speedy trial the day before her
counsel went on convalescent leave does not favor the appellant when those demands are
viewed in the context of trial defense counsel’s statements of unavailability. Third, we
find that neither the length of delay nor the lawfully imposed pretrial confinement during
that delay prejudiced the appellant to such an extent as to tip the balance toward finding a
violation of Article 10, UCMJ. Having reviewed de novo whether the appellant was
denied her right to a speedy trial under Article 10, UCMJ, we conclude that she was not.
Nor do we find a violation of R.C.M. 707’s requirement that an accused be brought to
trial within 120 days of the imposition of restraint: the appellant was arraigned 122 days
after imposition of pretrial confinement, but 24 days were properly excluded for speedy
trial accountability by the convening authority’s approval of a defense delay request. See
R.C.M. 707(c).

                                 Appellate Review Time Standards

       The post-trial processing of the present case has been less than exemplary. The
court-martial adjourned on 30 September 2009.2 The convening authority took action
91 days later on 30 December 2009. The case was not docketed with the Court for an
additional 89 days after action, on 29 March 2010. The appellant submitted her
assignment of errors approximately one year after docketing, and in her first assigned

2
  The court-martial order (CMO) incorrectly lists the date the sentence was adjudged as 5 October 2009. The
sentence was adjudged, and the court was adjourned, on 30 September 2009. While this clerical error is not
prejudicial, we order a corrected CMO. See Air Force Instruction 51-201, Administration of Military Justice,
¶ 10.10 (6 June 2013).


                                                     5                                   ACM 37627 (recon)
error identified that certain appellate exhibits were added to the record after
authentication. The Government filed a motion to return the record for a certificate of
correction and new post-trial processing on 27 June 2011. On 5 July 2011, the appellant
did not oppose the motion but did assert her due process right to speedy appellate review
pursuant to United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006). We granted the
motion on 7 July 2011. A new action was completed on 7 February 2012. The revised
completed record was docketed with this Court on 6 March 2012. On 31 October 2012,
the appellant filed a supplemental assignment of error requesting relief due to the delay in
the post-trial processing. The Government filed an answer to all the assigned errors on
30 November 2012.

        At the time of the appellant’s court-martial in 2009, she had served 14 months
with the Air Force. By the time the Government had corrected its post-trial processing
errors, completed a new action, and again docketed this record with our Court, 888 days
had elapsed for the post-trial processing. The appellant enlisted in the Air Force in 2008
for a term of 6 years. We are mindful of the irony that of the 6 years the appellant was to
serve in the Air Force, she spent only 14 months on active duty prior to her court-martial
and the remaining nearly 5 years have been spent in post-trial activity: confinement,
mandatory supervised release, or appellate leave.

        We review de novo “[w]hether an appellant has been denied [her] due process
right to a speedy post-trial review . . . and whether [any] constitutional error is harmless
beyond a reasonable doubt.” United States v. Allison, 63 M.J. 365, 370 (C.A.A.F. 2006).
A presumption of unreasonable delay arises when appellate review is not completed and
a decision is not rendered within 18 months of the case being docketed before this Court.
Moreno, 63 M.J. at 142. The Moreno standards continue to apply as a case remains in
the appellate process. United States v. Mackie, 72 M.J. 135, 135–36 (C.A.A.F. 2013).
The Moreno standard is not violated when each period of time used for the resolution of
legal issues between this Court and our superior court is within the 18-month standard.
Id. at 136; see also United States v. Roach, 69 M.J. 17, 22 (C.A.A.F. 2010). However,
when a case is not completed within 18 months, such a delay is presumptively
unreasonable and triggers an analysis of the four factors elucidated in Barker and
Moreno. See United States v. Arriaga, 70 M.J. 51, 55 (C.A.A.F. 2011). Those factors
are “(1) the length of the delay; (2) the reasons for the delay; (3) whether the appellant
made a demand for a speedy trial; and (4) prejudice to the appellant.” Mizgala,
61 M.J. at 129; see also Barker, 407 U.S. at 530.

       This case was not originally docketed with us until 89 days after action. The
period from action to docketing is presumptively unreasonable when it exceeds 30 days.
Moreno, 63 M.J. at 142. We rendered our initial decision on 14 May 2013. An overall
delay of more than 540 days between the time of docketing and the initial review by this
Court is facially unreasonable. Id. The Government asserts that the appellate clock
should be viewed as reset once we granted the motion for a corrected record after


                                             6                             ACM 37627 (recon)
authentication. We need not decide that issue in this case. Even if the appellate clock
was reset, we would still examine whether the convening authority’s action on the
authenticated record was timely. A presumption of unreasonableness applies when the
convening authority does not take action within 120 days of the court-martial being
completed. Id. The time between our order granting the motion for a corrected record
and the convening authority’s action exceeded 120 days. Therefore, there are at least two
time periods that exceeded the 18-month threshold and are presumptively unreasonable.

       As stated supra, our superior court recently decided one of the judges who
participated in our original decision was not properly appointed. See Janssen,
73 M.J. at 222. Accordingly, we have considered the appellant’s court-martial before a
properly constituted panel and have issued this decision. The time between our superior
court’s action to return the record of trial to our Court for our action and this decision did
not exceed 18 months; therefore, the Moreno presumption of unreasonable delay is not
triggered. See Mackie, 72 M.J. at 136. Assuming the total appellate processing of this
case raises a presumption of unreasonable delay, we again conclude the delay was
harmless under the Barker analysis.

        We analyze the Barker factors for the delay leading up to our first decision. The
first factor weighs in favor of the appellant; as addressed supra, there are lengths of time
that are presumptively unreasonable. See Moreno, 63 M.J. at 142.

        The second factor also weighs in favor of the appellant. For the violation
involving the time from action until docketing, there is scant evidence in the record to
explain why the court-martial was not initially docketed with this Court until the
benchmark time had been exceeded almost three times over. For the violation involving
the time from our order for a corrected record until the convening authority’s action,
there is evidence in the record that the Government sent the corrected record of trial to
the appellant by certified mail and delivery was attempted, but unsuccessful on 10
November 2011. The record should have been returned to the base legal office but was
lost in the mail. The Government did not seek to rectify this issue until 3 January 2012,
when it sent another copy of the documents to the appellant’s trial defense counsel. We
are mindful of our superior court’s emphasis that the established benchmarks do not
create a free period, and “personnel and administrative issues . . . are not legitimate
reasons justifying otherwise unreasonable post-trial delay.” Arriaga, 70 M.J. at 57.
Therefore, we conclude this second factor weighs in favor of the appellant.

        The third factor additionally weighs in favor of the appellant as she asserted her
due process right to timely appellate review on 5 July 2011 and in subsequent pleadings.
Furthermore, the Government carries the burden of primary responsibility for speedy
post-trial processing. United States v. Bodkins, 60 M.J. 322, 323–24 (C.A.A.F. 2004).




                                              7                              ACM 37627 (recon)
       However, on the fourth factor, the appellant fails to demonstrate any prejudice in
this case. The appellant was released from confinement in August 2010 and placed in
mandatory supervised release. This was prior to her first request for an enlargement of
time. The appellant completed her mandatory supervised release in May 2011 and since
that time has been in an appellate leave status. “An appellant must demonstrate a
‘particularized anxiety or concern that is distinguishable from the normal anxiety
experienced by prisoners awaiting an appellate decision.’” Arriaga, 70 M.J. at 58
(quoting Moreno, 63 M.J. at 140). Here, the appellant has not done so.

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

       Having considered the totality of the circumstances and the entire record, when we
balance the other three factors, we find the post-trial delay in this case not to be so
egregious as to adversely affect the public’s perception of the fairness and integrity of the
military justice system. We are convinced the error is harmless beyond a reasonable
doubt.

        While we find the post-trial delay was harmless, that does not end our analysis.
Article 66(c), UCMJ, empowers appellate courts to grant sentence relief for excessive
post-trial delay without the showing of actual prejudice required by Article 59(a), UCMJ,
10 U.S.C. § 859(a). United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002); see also
United States v. Harvey, 64 M.J. 13, 24 (C.A.A.F. 2006). In United States v. Brown,
62 M.J. 602, 606–07 (N.M. Ct. Crim. App. 2005), our Navy and Marine Court colleagues
identified a “non-exhaustive” list of factors to consider in evaluating whether
Article 66(c), UCMJ, relief should be granted for post-trial delay. Among the
non-prejudicial factors are the length and reasons for the delay; the length and complexity
of the record; the offenses involved; and the evidence of bad faith or gross negligence in
the post-trial process. Id. at 607. We find there was no bad faith or gross negligence in
the post-trial processing in any stage of the appellate review of this matter. The reason
for the delay between our original decision 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 Clause3 to appoint
civilian employees to the service courts of criminal appeals. However, the overall length
of delay in this case is troublesome. The initial delay was due to errors in the assembly
of the record of trial. We also find that there are periods of time where the record does
not document what, if any, actions the Government was taking to ensure that the
well-established minimum thresholds of Moreno were being met. We have the authority

3
    U.S. CONST. art II § 2, cl 2.


                                              8                             ACM 37627 (recon)
to tailor an appropriate remedy without giving the appellant a windfall. See Tardif,
57 M.J. at 225. Upon review of the totality of the circumstances, to include that the
appellant victimized many fellow Airmen in her larcenies, we grant relief that has some
meaning and is appropriately tailored. We therefore approve a sentence of a bad-conduct
discharge, confinement for 24 months, forfeiture of all pay and allowances, and reduction
to E-2.

                                       Conclusion

       The findings and the sentence are correct in law and fact and no error materially
prejudicial to the substantial rights of the appellant occurred. Articles 59(a) and 66(c),
UCMJ. However, we affirm only so much of the sentence as includes a bad-conduct
discharge, confinement for 24 months, forfeiture of all pay and allowances, and reduction
to E-2. Accordingly, the approved findings and the sentence, as modified, are
AFFIRMED.



             FOR THE COURT


             STEVEN LUCAS
             Clerk of the Court




                                            9                             ACM 37627 (recon)
