              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                                  Before
                F.D. MITCHELL, R.Q. WARD, J.A. FISCHER
                         Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                      DELZHEA M. CHATMAN
                  AVIATION BOATSWAIN’S MATE
          (HANDLING) AIRMAN APPRENTICE (E-2), U.S. NAVY

                           NMCCA 201300119
                       GENERAL COURT-MARTIAL


Sentence Adjudged: 29 November 2012.
Military Judge: CDR John Maksym, JAGC, USN.
Convening Authority: Commander, U.S. Naval Forces Japan,
Yokosuka, Japan.
Force Judge Advocate's Recommendation: CDR T.D. Stone,
JAGC, USN.
For Appellant: LT Jennifer Myers, JAGC, USN.
For Appellee: Capt Matthew Harris, USMC.

                            28 August 2014

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                     OPINION OF THE COURT
     ---------------------------------------------------

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

     A military judge sitting as a general court-martial
convicted the appellant, in accordance with his pleas, of
failure to obey a lawful order, aggravated assault, and
obstruction of justice in violation of Articles 92, 128, and
134, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 928,
and 934. A panel of members with enlisted representation
sentenced the appellant to three years’ confinement, reduction
to pay grade E-1, total forfeitures, and a bad-conduct
discharge. The convening authority approved the sentence and,
except for the punitive discharge, ordered it executed.

     On appeal, the appellant raises three assignments of error:
first, that he suffered a violation of his rights under Article
13, UCMJ; second, that he suffered a violation of his right to
speedy post-trial processing; and third, that he suffered a
violation of his right to speedy trial under Article 10, UCMJ.1
Having examined the record of trial, the appellant’s post-trial
declaration2 and assignments of error, and the pleadings of the
parties, we conclude that the findings and the sentence are
correct in law and fact and that no error materially prejudicial
to the substantial rights of the appellant was committed. Arts.
59(a) and 66(c), UCMJ.

                                 Background

     On 6 July 2012, the appellant attended a barbeque at
Sasebo, Japan with several other members of his ship, the USS
BONHOMME RICHARD (LHD 6). At the barbeque, a verbal altercation
ensued between the appellant and the victim, Aviation
Maintenance Administrationman Third Class (AZ3) DM. After
leaving the barbeque, the appellant proceeded to a nearby Navy
Exchange store and purchased a hatchet, which he then stored in
a locker nearby. Upon seeing AZ3 DM later that evening, the
appellant retrieved the hatchet and attacked AZ3 DM with it,
striking him on the knee. The appellant then left the scene and
disposed of the hatchet in the ocean.
     For several days following the incident, the appellant’s
command placed him in troop medical berthing on board the ship
under watch. On 10 July 2012, his commanding officer ordered
him into pretrial confinement at the Naval brig in Yokosuka,
Japan. The following morning, members of the ship’s crew
escorted the appellant in hand and leg restraints across the
deck of the ship in plain view of other crew members
participating in command physical training (PT).
     Once the appellant arrived at the Yokuska brig, brig staff
identified several items missing from his required seabag.

1
  The appellant submits the second and third assigned errors pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
2
  On 11 December 2013, we granted the appellant’s consent motion to attach his
declaration made under penalty of perjury (“Chatman Declaration”).
                                      2
These items include various uniform items, personal grooming
items and an extra pair of boots. After numerous attempts by
his command failed to rectify the matter, the appellant was
eventually escorted to a base exchange where he was permitted to
withdraw cash from an ATM and purchase the necessary items.
     On 2 October 2012, the appellant demanded speedy trial. At
arraignment on 16 October 2012, the appellant entered not guilty
pleas to all offenses and elected trial by members with enlisted
representation. Record at 12, 14. The military judge then
discussed the appellant’s speedy trial demand and all parties
agreed to a motions date of 5 November 2012. Id. at 16-19.
After reviewing the court docket, the military judge proposed,
and counsel agreed to, a trial date of 14-18 January 2013. Id.
at 23. On 24 October 2012, the appellant submitted various
motions to include a motion to dismiss all offenses for
violation of his right to speedy trial under Article 10, UCMJ.
Appellate Exhibit VI. On 1 November 2012, the military judge
heard the motion and denied relief. Id. at 30-49. At the
Government’s request, the military judge readdressed the subject
of a trial date in light of the appellant’s earlier demand.
With the parties’ concurrence, the military judge rescheduled
trial to commence on 28 November 2012. However, on that date
the appellant entered guilty pleas to all offenses pursuant to a
pretrial agreement. On 29 November 2012, the members sentenced
the appellant.
     The convening authority took action in the appellant’s case
on 25 March 2013 and the record of trial was docketed with this
Court on 4 April 2013. Due to inaccuracies in the record, this
court remanded the case for correction of the record. However,
the corrected record of trial was not re-docketed with this
Court until 7 November 2013, a delay of 112 days.
                             Analysis
Article 13, UCMJ violation
     During sentencing, the military judge heard the appellant’s
motion for appropriate relief for illegal pretrial punishment
and unlawful pretrial confinement under Article 13, UCMJ.
Record at 414-23; AE III. Trial defense counsel sought
confinement credit for a number of actions or inactions by the
appellant’s command, namely the appellant being escorted in
restraints across the deck of the ship in view of Sailors
gathered for command PT and the command’s failure to ensure that
the appellant was accompanied with all necessary items upon
entering the brig. Record at 419-21. The military judge found

                                3
merit in the first complaint and granted 75 days additional
confinement credit. Notably, however, trial defense counsel
failed to raise any of the additional complaints now lodged by
the appellant.3

     When an Article 13 complaint is raised at trial, we review
the military judge's findings of fact under a clearly erroneous
standard. United States v. King, 61 M.J. 225, 227 (C.A.A.F.
2005). The application of those facts to any determination of
whether the appellant suffered an Article 13 violation is a
matter we review de novo. Id. The burden is on the appellant
to show a violation of Article 13. United States v. Mosby, 56
M.J. 309, 310 (C.A.A.F. 2002).

     Article 13 prohibits two things: (1) the intentional
imposition of punishment on an accused before his or her guilt
is established at trial, and (2) arrest or pretrial confinement
conditions that are more rigorous than necessary to ensure the
accused’s presence at trial. United States v. Inong, 58 M.J.
460, 463 (C.A.A.F. 2003). The “punishment prong” of Article 13
focuses on intent, while the “rigorous circumstances” prong
focuses on the conditions of pretrial restraint. See United
States v. McCarthy, 47 M.J. 162, 165 (C.A.A.F. 1997).

     In his motion, the appellant through counsel complained of
illegal pretrial punishment from the public humiliation of being
escorted off the BONHOMME RICHARD in restraints in front of his
shipmates. Further, he complained that some of his required
personal grooming items and uniform items were missing from his
seabag when he arrived at the Yokosuka brig. Specifically, his
motion cites these missing items as “1 pair of black socks, 1
blue t-shirt, and 2 PT uniforms (supposed to have a total of
4).” AE III at 6.
     The military judge found overall no “obvious evidence of
intentional conduct toward punishment[,]” rather “. . .simply
massively culpably neglectful conduct.” Record at 422. He then
granted 75 days’ confinement credit for primarily the incident
where ship security personnel escorted the appellant in
restraints across the deck of the ship in plain view of other
personnel. Id. at 423.



3
  In his declaration, the appellant alleges that during his stay in medical
troop berthing he was “forced to rely on the volunteer services of friends
and associates” to get meals and that he suffered from a lack of heat while
in pretrial confinement.   Chatman Declaration at 1-2.
                                      4
     However, the appellant now asserts that he was not fed and
was left hungry for most of his time in the troop berthing on
the USS BONHOMME RICHARD. He also asserts that he spent 10 days
in the Yokosuka brig with no toothbrush, toothpaste, soap,
deodorant, or razor. Chatman Declaration. He last complains of
a lack of necessary heat in the Yokosuka brig, that he was
forced to sleep in a t-shirt and shorts, and that the
temperature caused him to refrain from drinking water, leading
to a state of dehydration so severe Brig personnel rushed him to
the base emergency room. Id.
     Although the appellant’s failure to raise these issues at
trial does not bar this court from reviewing the conditions of
his pretrial confinement, it is strong evidence that appellant
has not been subject to pretrial punishment. United States v.
Scalarone, 52 M.J. 539, 543 (N.M.Ct.Crim.App. 1999). We note
that he made no mention of these conditions in his pretrial
motion or during the related Article 39a session. Record at
371-423; AE III. Neither did he raise these additional matters
in his unsworn statement at trial nor in his personal statement
to the convening authority in his clemency petition. Clemency
Request of 21 Mar 2013 at enclosures (1) and (2). For these
reasons, we find these additional claims lack credible evidence
and we decline to grant relief.
Post-Trial Delay
     Whether an appellant has been deprived of his due process
right to speedy appellate review is a question of law we review
de novo. United States v. Moreno, 63 M.J. 129, 135 (C.A.A.F.
2006). We review claims of due process violations caused by the
delay under the four-part test laid out in Barker v. Wingo, 407
U.S. 514, 530 (1972). Id. In this analysis, we balance the (1)
length of delay; (2) reasons for the delay; (3) appellant's
assertion of the right to timely review and appeal; and (4)
prejudice. Id. If the length of the delay itself is not
facially unreasonable, there is no need for further inquiry.
United States v. Jones, 61 M.J. 80, 83 (C.A.A.F. 2005).

     A total of 117 days lapsed from the completion of the
appellant’s trial (29 November 2012) and the convening
authority’s action (25 March 2013). The record of trial was
docketed with this court on 4 April 2013; however, the corrected
record was not docketed until 7 November 2013.

     After remand, it took an additional 112 days for the
corrected record of trial to be docketed with this court.   The
appellant cites this additional period of 112 days as

                                5
unreasonable. However, for most of this time he has had the
benefit of a near complete record of trial to prepare his
appeal. Furthermore, we note that appellate review by this
court has been completed within the 18 month Moreno timeline,
even if calculated from the original date of docketing (4 April
2013). Consequently, we find no facially unreasonable delay and
therefore no further review of the remaining Moreno factors is
warranted.4

Speedy Trial Violation

     The appellant asserts that he was denied a speedy trial as
guaranteed by Article 10, UCMJ, a claim we review de novo.
United States v. Cooper, 58 M.J. 54, 58 (C.A.A.F. 2003). Where
a military judge has made findings of fact when ruling on a
speedy trial motion, we give them substantial deference and
review only for clear error. Id.

     The appellant bases his claim on the period of 146 days
from imposition of pretrial confinement until conclusion of
trial. The standard of diligence under which we review Article
10 claims “is not constant motion, but reasonable diligence in
bringing the charges to trial.” United States v. Tibbs, 35
C.M.R. 322, 325 (C.M.A. 1965). In determining whether the
speedy trial requirements are satisfied, it is appropriate to
consider: (1) the length of the delay; (2) the reasons for the
delay; (3) the assertion of the right to speedy trial; and (4)
the existence of prejudice. See United States v. Birge, 52 M.J.
209, 212 (C.A.A.F. 1999) (quoting Barker, 407 U.S. at 530).
When those factors are weighed here, we conclude, as did the
military judge, that they balance in favor of finding that the
appellant was not denied his right to a speedy trial.

    1. Length of Delay

     Article 10 protections are triggered upon the imposition of
pre-trial restraint. United States v. Schuber, 70 M.J. 181, 184
(C.A.A.F. 2011). At trial, the Government conceded that the
appellant’s status in troop medical berthing under a one-on-one
watch was akin to confinement, thus triggering the appellant’s
speedy trial rights. Record at 31. From that time, 146 days
passed until conclusion of trial on 29 November 2012. This
delay exceeds periods of pretrial confinement our superior court
has deemed sufficient to trigger a full speedy trial analysis.

4
  Additionally, the appellant has not identified, nor do we find, any harm
from this delay.
                                      6
United States v. Thompson, 68 M.J. 308, 312 (C.A.A.F. 2010 (145
days); United States v. Cossio, 64 M.J. 254, 257 (C.A.A.F. 2007)
(117 days).
    2. Reasons for Delay

     Charges were preferred against the appellant on 6 August
2012. Subsequently, there was a delay in scheduling an Article
32 hearing until 11 September 2012 due to availability and
assignment of defense counsel. Record at 41. Following the
Article 32 hearing, charges were referred to a general court-
martial on 5 October 2012. During this time, a 706 examination
was requested by defense counsel with the resulting report
issued on 10 October 2012. The military judge arraigned the
appellant on 16 October 2012. At arraignment, the appellant
entered pleas of not guilty to all offenses and requested trial
by members. Id. at 12, 14. The military judge discussed with
counsel the appellant’s earlier speedy trial request filed on 2
October 2013. In light of his speedy trial demand and with a
view toward a contested trial, the military judge scheduled
trial for 14 January 2013. Both parties concurred with this
trial date. Id. at 21-23; AE I.
     On 24 October 2012, the appellant filed a motion to dismiss
all charges due to a violation of Article 10, UCMJ. The
military judge heard and denied the motion on 1 November 2012.
Record at 30-49. The military judge then discussed with the
parties rescheduling trial to commence 28 November 2013 in light
of the appellant’s incarceration and his speedy trial demand.
Both parties agreed and consequently the military judge ordered
trial to commence on 28 November 2013. Id. at 145-47. On that
date, however, pursuant to a pretrial agreement the appellant
changed his pleas and entered pleas of guilty to all offenses.
The members returned a sentence the following day.
     Based on these facts, we agree with the military judge that
from the preferral of charges onward, albeit some delay at the
onset,5 there was constant motion on appellant’s case.   The
reasons for any delay in bringing the appellant to trial were
reasonable in light of the parties’ view toward a contested
trial. We find this factor weighs in favor of the Government.

5
  The military judge found, and we agree, that the delay attributable to the
absence of a legal officer on board the BONHOMME RICHARD to prefer charges
was unreasonable, but that period of delay is so short that it need not
concern this court. See United States v. Danylo, 73 M.J. 183, 190 (C.A.A.F.
2014) (“In our speedy trial jurisprudence, we break down the periods of
delay, analyze the reasons for each, and may express concern with some but
not other periods of delay.”).
                                      7
  3. Demand for a Speedy Trial

     As noted above, the appellant made a speedy trial request
on 2 October 2012. He followed that request with a motion to
dismiss filed on 24 October 2013, which the military judge heard
in a timely manner. However, this demand made nearly three
months after imposition of pretrial restraint, is mitigated by
the appellant’ pretrial agreement and guilty pleas one month
later. Accordingly, we find this factor weighs in neither
parties’ favor.
  4. Prejudice

     Prejudice should be assessed in the light of those
interests that the speedy trial right was designed to protect:
“(i) to prevent oppressive pretrial incarceration; (ii) to
minimize anxiety and concern of the accused; and (iii) to limit
the possibility that the defense will be impaired.” United
States v. Mizgala, 61 M.J. 122, 129 (C.A.A.F. 2005) (citation
and internal quotation marks omitted). Given his pretrial
agreement and resulting pleas, the meaningful credit he received
for each day of pretrial confinement, and his failure to
identify any prejudice, we conclude that the appellant suffered
no violation of his right to speedy trial.
                           Conclusion

     The findings and the sentence as approved by the convening
authority are affirmed.
                                 For the Court



                                 R.H. TROIDL
                                 Clerk of Court




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