United States v. Bischoff

UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Airman First Class AKIO A. BISCHOFF
United States Air Force

ACM 37731 (f rev)

19 February 2015

Sentence adjudged 6 June 2014 by GCM convened at Beale Air Force Base,
California. Military Judge: Vance H. Spath (original court-martial) and
Todd McDowell (sentence rehearing)

Approved Sentence: Bad-conduct discharge, forfeiture of all pay and
allowances, reduction to E-1, and a reprimand.

Appellate Counsel for the Appellant: Colonel Eric N. Eklund;
Lieutenant Colonel Gail E. Crawford; Major Anthony D. Ortiz;
Major Matthew T. King; Captain Luke D. Wilson; Captain Johnathan D.
Legg; and Dwight H. Sullivan, Esquire.

Appellate Counsel for the United States: Colonel Don M. Christensen;
Lieutenant Colonel Linell A. Letendre; Lieutenant Colonel C. Taylor Smith;
Major Daniel J. Breen; Major Scott C. Jansen; Major Naomi N. Porterfield;
Major John M. Simms; Captain Richard J. Schrider; and Gerald R. Bruce,
Esquire.

Before

MITCHELL, WEBER, CONTOVEROS
Appellate Military Judges

OPINION OF THE COURT
UPON FURTHER REVIEW

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
under Air Force Rule of Practice and Procedure 18.4.
MITCHELL, Senior Judge:

At a general court-martial composed of officer members, the appellant pled guilty
to the wrongful use, distribution, and introduction of 3, 4-Methylenedioxy-
methamphetamine (“Ecstasy”), in violation of Article 112a, UCMJ, 10 U.S.C. § 912a.
On 17 June 2010, the original panel sentenced the appellant to a bad-conduct discharge,
confinement for 1 year, forfeiture of all pay and allowances, and reduction to E-1. The
convening authority approved the sentence as adjudged.

This court previously affirmed the findings in an unpublished decision on
8 May 2013. Because we found that the military judge committed plain error by
violating Rule for Courts-Martial (R.C.M.) 912(g)(1), we set aside the sentence and
returned the record of trial to The Judge Advocate General for remand to the convening
authority. United States v. Bischoff, ACM 37731 (A.F. Ct. Crim. App. 8 May 2013)
(unpub. op.). Upon our own motion, we then reconsidered the previous decision and
reached the same conclusions. United States v. Bischoff, ACM 37731 (recon)
(A.F. Ct. Crim. App. 12 July 2013) (unpub. op.).1 On 12 August 2013, the Government
asked this court to reconsider our previous decision, and we granted the motion on
11 September 2013. After reviewing the entire record, to include the supplemental
submissions of counsel for both sides, we reached the same legal conclusions, upholding
the findings, setting aside the sentence, and authorizing a rehearing on the sentence.
United States v. Bischoff, ACM 37731 (recon) (A.F. Ct. Crim. App. 6 December 2013)
(unpub. op.). 2 The convening authority then referred the case to a sentence rehearing. A
panel of officer members sentenced the appellant to a bad-conduct discharge, forfeiture
of all pay and allowances, reduction to E-1, and a reprimand. The convening authority
approved the adjudged sentence.

On appeal of the rehearing, the appellant contends that (1) the military judge
abused his discretion by not granting a defense challenge for cause against a court
member who stated he would use his previous experience in a court-martial to determine
a baseline for a fair sentence; and (2) his right to speedy appellate review was violated
when the initial appellate decision breached established standards, and he suffered
prejudice by having completed the original sentence to confinement when no
confinement was adjudged at the rehearing. He contends the 23-day violation of the
30-day post-trial processing standard for forwarding the record of trial for appellate
review warrants modest relief. Although not raised by the appellant, we also consider

1
The first panel included a civilian employee who was assigned to the court by The Judge Advocate General. The
court’s sua sponte reconsideration occurred after the appointment of the same civilian employee to this court by the
Secretary of Defense on 25 June 2013. The first two panels had identical members. 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 civilian employees as appellate military judges and that his
earlier appointment to this court was “invalid and of no effect.”
2
The panel upon second reconsideration did not include the civilian employee.

2 ACM 37731 (f rev)
whether the appellant was prejudiced by the clear error of attaching the personal data
sheet (PDS) from 2010 to the 2014 staff judge advocate’s recommendation (SJAR) when
an updated 2014 PDS was admitted at the rehearing. We conclude the appellant is
entitled to relief based on the excessive time for appellate review and adjust the sentence
accordingly.

Denial of Challenge for Cause

The appellant alleges the military judge erred by denying the defense challenge for
cause concerning panel member Major (Maj) BB. The appellant contends Maj BB
should have been excused under the implied bias standard. We disagree.

Implied bias is “viewed through the eyes of the public, focusing on the appearance
of fairness.” United States v. Bagstad, 68 M.J. 460, 462 (C.A.A.F. 2010) (quoting
United States v. Clay, 64 M.J. 274, 276 (C.A.A.F. 2007)) (internal quotation marks
omitted). Therefore, appellate courts employ an objective standard when reviewing a
military judge’s decision regarding implied bias. United States v. Strand, 59 M.J. 455,
458 (C.A.A.F. 2004). We review issues of implied bias under a standard less deferential
than abuse of discretion but more deferential than de novo. Id. (citing United States v.
Miles, 58 M.J. 192, 195 (C.A.A.F. 2003)). In reviewing challenges for cause under the
implied bias standard, military judges are required to follow the “liberal grant” mandate,
which “supports the UCMJ’s interest in ensuring that members of the military have their
guilt or innocence determined ‘by a jury composed of individuals with a fair and open
mind.’” United States v. James, 61 M.J. 132, 139 (C.A.A.F. 2005) (quoting United States
v. Smart, 21 M.J. 15, 18 (C.M.A. 1985)). “[I]n the absence of actual bias, where a
military judge considers a challenge based upon implied bias, recognizes his duty to
liberally grant defense challenges, and places his reasoning on the record, instances in
which the military judge’s exercise of discretion will be reversed will indeed be rare.”
Clay, 64 M.J. at 277.

During individual voir dire, Maj BB explained that he had previously served on a
court-martial for sentencing of a drug case. He stated that the sentence in the other
court-martial was “a year of confinement and then a less than honorable discharge.”
Maj BB indicated that he thought the prior sentence served as a “frame of reference” as to
what he would consider a fair sentence. He answered that he understood the military
judge’s instruction that the earlier case did not have precedential value and that he could
consider the full range of punishments. However, he also stated he would have a hard
time considering no confinement and his knowledge of the other sentence would “still
weigh in.” Trial defense counsel challenged Maj BB. The military judge considered the
challenge upon actual bias, implied bias and the liberal grant mandate, and denied the
challenge to Maj BB. The military judge granted two of the defense’s other challenges
for cause and denied two (including Maj BB). Trial defense counsel used his peremptory

3 ACM 37731 (f rev)
challenge on the other member. Maj BB became the president of the panel. The panel
ultimately adjudged a sentence that did not include any confinement.

We find no error in the military judge’s application of the liberal grant mandate to
defense challenges for cause. The appellant “is entitled to have his case heard by
members who are not predisposed or committed to a particular punishment, or who do
not possess an inelastic attitude toward the punitive outcome.” United States v. Martinez,
67 M.J. 59, 61 (C.A.A.F. 2008). Like the military judge, we find that Maj BB’s answers
revealed he did not have an inelastic predisposition nor was he unduly predisposed to a
particular punishment. The responses by Maj BB are far different from a member who
answered that he would be merciless in sentencing an appellant found guilty of rape, see
Clay, 64 M.J. at 278, and the responses of a senior member that no punishment was not
an option and there was no room in his Air Force for someone who used drugs, Martinez,
67 M.J. at 64. Maj BB explained that he had prior knowledge of another drug
court-martial, understood that each case was different, and would make a decision based
on the evidence produced in this particular court-martial. Article 25, UCMJ, 10 U.S.C.
§ 825, mandates that the convening authority detail members who are “best qualified for
the duty by reason of age, education, training, experience, length of service, and judicial
temperament.” Prior experience as a court-martial member fits squarely within these
qualifications. We would expect that military members with increased length of service
will have knowledge of other punishments meted for other accused servicemembers, to
include administrative, nonjudicial, and judicial punishments. Members should not be
foreclosed from relying on their experience in determining an appropriate and just
sentence in an individual case, as long as they demonstrate a willingness to consider each
case on its own merits. We conclude that the military judge did not err in denying the
challenge for cause.

Errors in Staff Judge Advocate Recommendation

Proper completion of post-trial processing is a question of law, which we review
de novo. United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000). Failure to timely
comment on matters in the SJAR, to include matters attached to it, forfeits3 the issue
unless there is plain error. R.C.M. 1106(f)(6); United States v. Scalo, 60 M.J. 435, 436

3
Rule for Courts-Martial 1106(f)(6) and United States v. Scalo, 60 M.J. 435, 436 (C.A.A.F. 2005), both indicate that
“waiver” occurs when counsel fails to comment on matters in the staff judge advocate’s recommendation. However,
our superior court’s decision in United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009), recognizes that military
courts had failed to “consistently distinguish between the terms ‘waiver’ and ‘forfeiture.’” Gladue held that waiver
is the “intentional relinquishment or abandonment of a known right,” which precludes appellate review of an issue,
while forfeiture is “the failure to make the timely assertion of a right” leading to plain error review on appeal. Id.
(quoting United States v. Olano, 507 U.S. 725, 733 (1993)) (internal quotation marks omitted). Following Gladue,
the term “forfeiture” should generally characterize the effect of a failure to timely comment on matters in the staff
judge advocate’s recommendation. See United States v. Parker, 73 M.J. 914 (A.F. Ct. Crim. App. 2014) (holding
that the appellant forfeited, rather than waived, a claim that erroneous information was attached to the staff judge
advocate’s recommendation).

4 ACM 37731 (f rev)
(C.A.A.F. 2005). Under a plain error analysis, the appellant bears the burden of showing:
“(1) there was an error; (2) it was plain or obvious; and (3) the error materially prejudiced
a substantial right of the appellant.” Kho, 54 M.J. at 65. Although the threshold for
establishing prejudice in this context is low, the appellant must nonetheless make at least
“some colorable showing of possible prejudice.” Scalo, 60 M.J. at 437 (quoting Kho,
54 M.J. at 65) (internal quotation marks omitted).

When reviewing post-trial errors, we recognize the convening authority is an
appellant’s “best hope for sentence relief.” United States v. Lee, 50 M.J. 296, 297
(C.A.A.F. 1999) (quoting United States v. Bono, 26 M.J. 240, 243 n.3 (C.M.A. 1988))
(internal quotation marks omitted). The convening authority, not the courts of criminal
appeals, is empowered to grant clemency for equitable reasons. United States v. Nerad,
69 M.J. 138, 145 (C.A.A.F. 2010). “Because of the highly discretionary nature of the
convening authority’s action on the sentence, we will grant relief if an appellant presents
‘some colorable showing of possible prejudice.’” Kho, 54 M.J. at 65 (quoting
United States v. Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998)); see also Scalo, 60 M.J. at
436–37.

At the rehearing, trial counsel admitted into evidence an updated PDS dated
5 June 2014. On 17 July 2014, the acting staff judge advocate signed an SJAR with two
listed attachments: “1. AF 1359, 17 June 2010; 2. Personal Data Sheet, 16 June 2010.”
The 1 August 2014 SJAR addendum also lists these same two attachments. The first
addendum incorrectly stated that the defense did not allege any legal errors. The
convening authority signed an action that same day approving the adjudged sentence. A
second SJAR addendum was signed on 15 August 2014, which correctly stated that the
defense had alleged legal errors in the military judge’s denial of challenges for cause.
The second SJAR lists the same attachments. The convening authority withdrew the
earlier action and issued a new action approving the adjudged sentence. Neither the
SJAR, nor the 1 August 2014 addendum, nor the 15 August 2014 addendum lists the
2014 report of result of trial or the 2014 PDS as attachments.4

It was plain and obvious error to attach the 2010 PDS and report of result of trial
and to exclude the 2014 documents. However, in this case we find no colorable showing
of possible prejudice. The SJAR and trial defense counsel’s clemency request for the
appellant both listed the findings and sentence adjudged in both 2010 and 2014. The only
differences in the 2014 PDS are that it shows the increase to basic pay and a length of
service of 6 years, 9 months vice 2 years, 10 months. We are confident that the

4
The record of trial actually contains the 2014 report of result of trial (AF Form 1359) and personal data sheet.
However, we employ the principle of expressio unis est exclusio alterius (“That which is expressed specifically, acts
to exclude others.”) See United States v. Clinkenbeard, 44 M.J. 577, 578 n.1 (A.F. Ct. Crim. App. 1996). We
therefore conclude that the explicit listing of only the 2010 AF Form 1359 and PDS excludes the unlisted 2014
forms, and these forms were not presented to the convening authority but inserted into the record at some later time.

5 ACM 37731 (f rev)
convening authority would have been aware that basic pay has increased between 2010
and 2014. Likewise, the SJAR explained that the appellant was originally
court-martialed in 2010 and was later ordered to a sentence rehearing held in 2014, which
necessarily would have resulted in an increase to his length of service. We do not find
any colorable showing of prejudice under these facts. Cf. United States v. Wilson,
ACM 37486, unpub. op at 4 (A.F. Ct. Crim. App. 27 August 2014) (finding that the
appellant made a colorable showing of possible prejudice when the convening authority
was not presented with an updated personal data sheet admitted by the Government at the
sentence rehearing that showed possible retirement eligibility).

Appellate Delay

In our previous opinions, we determined that the overall delay between the time of
docketing and review by this court was facially unreasonable. See United States v.
Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006). However after considering the totality of the
circumstances and the entire record, we found that the appellate delay in this case was
harmless beyond a reasonable doubt. See id. at 135–36 (stating that claims of post-trial
and appellate delay should be reviewed using the four-factor analysis found in Barker v.
Wingo, 407 U.S. 514, 530 (1972)); see also United States v. Harvey, 64 M.J. 13, 24
(C.A.A.F. 2006). The appellant now renews his assignment of error regarding prejudicial
appellate delay and argues that his rehearing sentence which does not include
confinement demonstrates that his earlier confinement was oppressive.

We review de novo whether an appellant has been denied the due process right to
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). The time
from docketing the case on 21 September 2010 to the date of our initial decision on
8 May 2013 was 960 days (2 years, 7 months, 17 days). When appellate review is not
completed and a decision is not rendered within 18 months after docketing with the court,
there is a presumption of unreasonable delay. Moreno, 63 M.J. at 142. The Moreno
standards continue to apply as a case continues through the appellate process.
United States v. Mackie, 72 M.J. 135, 136 (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 and there is no malicious
delay. Id.; United States v. Roach, 69 M.J. 17, 22 (C.A.A.F. 2010). Our superior court
has not resolved whether the Moreno clock is reset when the service court issues an
initial decision or if it continues to run through the time of motions for reconsideration
and any subsequent opinions. Because we find that the time from docketing to our initial
8 May 2013 decision violated the Moreno standard, we need not decide if the Moreno
standards would be violated if the initial appellate decision was timely but subsequent
opinions after reconsideration exceeded 18 months after initial docketing.

6 ACM 37731 (f rev)
 Because the time from docketing to the initial decision violates the Moreno
standards, this presumptively unreasonable delay triggers an analysis of the four factors
elucidated in Barker v. Wingo, 407 U.S. 514, 530 (1972), adopted in Moreno, 63 M.J. at
135. 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.” United States v. Mizgala, 61 M.J. 122, 129 (C.A.A.F. 2005) (citing Barker,
407 U.S. at 530).

The delay is presumptively unreasonable so it weighs in favor of the appellant, and
we turn to the other factors. Moreno, 63 M.J. at 136. The appellant made a request for
speedy appellate review on 21 September 2012, two years after docketing with this court.
The appellant had not made any earlier demands. However, because the initial decision
was not issued until 229 days later (7 months, 17 days after his request), we find this
factor weighs in favor of the appellant.

As for the reasons for the delay, the Government argues that the appellant is
responsible for 352 days from the time of docketing until the time he filed his first
assignment of errors. However, the requests for delay do not indicate that they benefitted
the appellant in any way other than by having appellate counsel prepare a well written
brief. “The Government bears responsibility for unreasonable delay during appeal
occasioned by the workload of appellate defense counsel.” Id. at 138. The Government
then received three extensions of time and filed its brief 95 days later. The appellant
timely filed a reply brief 7 days later on 20 December 2011. The next period of delay
was for the court to issue its initial decision, 505 days later (16 months, 18 days). Our
superior court applies “a more flexible review of this period, recognizing that it involves
the exercise of the Court of Criminal Appeals’ judicial decision-making authority.” Id.
at 137. In Moreno, our superior court held that “a period of slightly over 6 months is not
an unreasonable time for review by the Court of Criminal Appeals.” Id. at 137–38. We
are unsure as to whether they would extend this same reasoning to a period of over
16 months for review of a record of trial that consisted of 306 pages, with 4 prosecution
exhibits, 10 defense exhibits, and 10 appellate exhibits. We conclude that this factor
weighs in favor of the appellant.

When assessing prejudice for a due process post-trial delay analysis, we examine
“three similar interests for prompt appeals: (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.” Moreno, 63 M.J. at 138–39. The appellant had a full sentencing rehearing
and did not identify any issues that interfered with his ability to present a full sentencing
case. His trial defense counsel submitted all the documents that were submitted at his
first court-martial including a favorable character statement from his supervisor when he
was on active-duty. The appellant also submitted an additional eight new character

7 ACM 37731 (f rev)
statements from friends and family members and ten new photographs that provided
evidence of his rehabilitation and gainful employment after his first court-martial. A
former Airman who had received and used Ecstasy with the appellant also testified. The
witness testified that he took responsibility for his own drug use, the appellant never
pressured him to use, and he did not blame the appellant. The second factor requires “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. The
appellant provided information regarding his difficulties resulting from his conviction but
did not provide any evidence that the delay in appellate processing caused any
particularized anxiety or concern. At the sentence rehearing, the hardships were a result
of his recall to active duty and its disruption of his civilian employment. The appellant
also indicated there was an administrative error in his pay and allowances when he was
recalled to active duty. Thus it was not the delay in the appellate process but the success
in the appellate process that caused financial hardship. The second and third sub-factors
do not favor the appellant.

We turn to the issue of “oppressive incarceration.” The appellant argues that
because he served his original sentence of 1 year confinement and the rehearing resulted
in a sentence of no confinement that he suffered “oppressive incarceration.” “[I]f an
appellant’s substantive appeal is meritorious and the appellant has been incarcerated
during the appeal period, the incarceration may have been oppressive.” Moreno, 63 M.J.
at 139. Persuasively, in the context of pretrial confinement, our superior court recently
clarified that it has “never held that pretrial confinement which exceeds an adjudged
sentence is per se prejudicial.” United States v. Danylo, 73 M.J. 183, 188 (C.A.A.F.
2014). The Supreme Court “held that 10 months of pretrial confinement . . . was not
prejudicial where there was no adverse impact on the defendant’s ability to present a
defense.” Id. (citing Barker, 407 U.S. at 534). Even if the appellate review had been
timely, the appellant likely would have completed his sentence to confinement before any
relief was ordered. We therefore conclude that the appellant has not suffered any
“oppressive incarceration” and therefore he has not shown any prejudice.

When there is no showing of prejudice under the fourth Barker 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 to not 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.

8 ACM 37731 (f rev)
 Failure to Forward the Record of Trial in a Timely Manner

After the rehearing, the convening authority signed the action on 15 August 2014. 5
The case was docketed with the appellate courts 41 days later on 24 September 2014.
This exceeds the 30-day standard in Moreno. Because the delay is presumptively
unreasonable, it triggers an analysis of the four Barker factors, as discussed above. Upon
our review of the factors, we conclude the delay was harmless under the Barker analysis.

Tardif Relief

Additionally, Article 66(c), UCMJ, 10 U.S.C. § 866(c), 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-Marine Corps 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. In this analysis we
deem it appropriate under the facts of this case to consider the full length of the delay
from initial docketing to our December 2013 decision in reconsideration. The first
reconsideration was ordered sua sponte by the court, and the second was at the request of
the Government. This was a total time period of 1172 days (3 years, 2 months, 15 days).
We also consider that even after this overly lengthy appellate review period, the
Government failed in the simple task of timely forwarding the record for docketing after
the convening authority’s action. While the delay at this court may have been related to
the number of personnel assigned to the court and other related issues, 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.” United States v. Arriaga, 70 M.J. 51, 57
(C.A.A.F. 2011). The brevity and straightforwardness of the record also weighs in favor
of the appellant. We also consider the evidence in the record regarding the facts and
circumstances of the offenses to include the testimony in the rehearing from the
appellant’s cohort. We conclude that sentence relief under Article 66, UCMJ, is
warranted and order appropriate relief. We therefore affirm only so much of the
approved sentence as provides for a bad-conduct discharge.

5
The convening authority’s action on 1 August 2014 was withdrawn by this action. The appellant appears to have
counted the days from the first action until docketing. We have decided that the second action is the correct one to
use to start this time period.

9 ACM 37731 (f rev)
 Conclusion

We affirm only so much of the approved sentence as provides for a bad-conduct
discharge. The findings and the sentence, as modified, 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. Accordingly, the approved findings and the sentence, as
modified, are

AFFIRMED.

FOR THE COURT

LEAH M. CALAHAN
Deputy Clerk of the Court

10 ACM 37731 (f rev)