UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
YOB, KRAUSS, and BURTON
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist JAMES B. GIBSON
United States Army, Appellant
ARMY 20120032
Headquarters, Fort Bliss
David H. Robertson, Military Judge
Colonel Francis P. King, Staff Judge Advocate (pretrial)
Colonel Edward K. Lawson IV, Staff Judge Advocate (post-trial)
For Appellant: Colonel Patricia A. Ham, JA; Captain Robert A. Feldmeier, JA (on
brief).
For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Robert A. Rodrigues,
JA; Captain Daniel H. Karna, JA (on brief).
24 June 2013
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SUMMARY DISPOSITION
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Yob, Senior Judge:
A military judge, sitting as a general court-martial, convicted appellant
pursuant to his pleas, of two specifications of wrongful distribution of controlled
substances in violation of Article 112a, Uniform Code of Military Justice, 10 U.S.C.
§ 912a (2006) [hereinafter UCMJ]. The military judge sentenced appellant to a bad-
conduct discharge and confinement for two years. After announcing the sentence,
the military judge made a clemency recommendation that any pay appellant was to
forfeit by operation of law should instead be directed to benefit appellant’s daughter
for the maximum period authorized. The convening authority approved the sentence
as adjudged and waived the automatic forfeiture of all appellant’s pay and
allowances that would have been required by Article 58b, UCMJ, for a period of six
months, with direction that these funds be paid to appellant’s wife.
GIBSON — ARMY 20120032
This case is before the court for review under Article 66, UCMJ. We have
considered the record of trial and written briefs of the parties in which appellant
raises one assignment of error, alleging unreasonable post-trial processing delay
warranting sentence relief. We agree with appellant for the reasons set forth below.
We have also considered the matter personally raised by appellant pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) and find it to be without
merit.
The government concedes it took 234 days, 1 to complete post-trial processing
of appellant’s record of trial, from sentence to action by the convening authority.
Our superior court, in United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006),
established a post-trial processing standards of 120 days for the government to
complete this part of post-trial processing. After Moreno, a delay in excess of this
standard results in a presumption of unreasonable post-trial delay. Whether the
post-trial processing rises to the level of a due process violation, however, hinges on
application and analysis of the four factors articulated in Barker v. Wingo, 407 U.S.
514 (1972). These factors are: “(1) the length of the delay; (2) the reasons for the
delay; (3) the appellant's assertion of the right to timely review and appeal; and (4)
prejudice,” with no one factor being dispositive. Moreno, 63 M.J. at 135–36.
Application of the first three factors to this case clearly support a conclusion
there was a due process violation. The length of delay was significant, as it was
almost double the presumed standard. This case involved a guilty plea to two
specifications and included no unusually complicating factors that would complicate
completion of the record in a timely manner. The transcript of proceeding was
ninety-four pages in length. The government’s explanation, offered in a one-page
affidavit from the Fort Bliss post-trial paralegal specialist, appears to attribute the
delay to personnel shortages, the fact that the legal office was also completing the
post-trial processing of several other cases at the same time, and fact that the
paralegal was on leave for a two-week period during this processing. In the context
of this case, we find these explanations unpersuasive. Moreno 63 M.J. at 137. The
government admits appellant asserted his right to timely review at day 139 of
processing and again raised speedy post-trial processing in his submissions made
pursuant to Rule for Courts-Martial [hereinafter R.C.M.] 1105 at day 225 of
processing. 2
1
This figure excludes the eleven days defense took from receipt of the staff judge
advocate recommendation until submitting matters pursuant to Rule for Courts-
Martial [hereinafter R.C.M.] 1105 for convening authority consideration.
2
We note that appellant did not elect to request an additional twenty days to submit
matters to the convening authority as permitted under R.C.M 1105. We view this as
further evidence of appellant’s desire for expeditious completion of the post-trial
processing of his case.
2
GIBSON — ARMY 20120032
In assessing the fourth factor of prejudice, the Moreno Court cited to three
sub-factors: “(1) prevention of oppressive incarceration pending appeal; (2)
minimization of anxiety and concern of those convicted awaiting the outcome of
their appeals; and (3) limitation of the possibility that a convicted person's grounds
for appeal, and his or her defenses in case of reversal and retrial, might be
impaired.” Id. at 138–39 (quoting Rheuark v. Shaw, 628 F.2d 297, 303 n.8 (5th Cir.
1980)). “[T]he appropriate test for the military justice system is to require an
appellant to show particularized anxiety or concern that is distinguishable from the
normal anxiety experienced by prisoners awaiting an appellate decision.” Id. at 140.
Appellant alleges delay prejudiced him because it delayed his wife’s receipt of
waived forfeitures. However, appellant demonstrates no harm resulting from this
delay. In fact, the record provides no indication as to why appellant did not attempt
to maximize potential payment to his dependants by requesting deferral of automatic
forfeiture as soon as they became effective, or by requesting waiver of the automatic
forfeiture prior to submission of his R.C.M. 1105 matters. Therefore, we find
appellant did not meet this burden of demonstrating prejudice.
Our review, however, does not end here. Article 66(c), UCMJ, also imposes
an obligation on this court to assess the appropriateness of appellant's sentence in
light of presumptively unreasonable and unexplained delay in the post-trial
processing of his case. See generally United States v. Toohey, 63 M.J. 353, 362–63
(C.A.A.F. 2006); United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002); United
States v. Ney, 68 M.J. 613, 616–17 (Army Ct. Crim. App. 2010). In consideration of
the significant delay associated with the post-trial processing of appellant's case
without adequate explanation or justification, we find a one-month reduction in the
sentence to confinement is warranted.
CONCLUSION
Therefore, on consideration of the entire record and the assigned error, the
findings of guilty are AFFIRMED. However, in light of our reasons above, the court
approves only so much of the sentence as provides for a bad-conduct discharge and
confinement for twenty-three months. All rights, privileges, and property, of which
appellant has been deprived by virtue of that portion of his sentence set aside by this
decision, are ordered restored. See UCMJ arts. 58b(c) and 75(a).
Judge KRAUSS and Judge BURTON concur.
FOR THE COURT:
MALCOLM
MALCOLM H. H. SQUIRES,
SQUIRES, JR.
JR.
Clerk of Court
Clerk of Court
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