United States v. Gay

UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Staff Sergeant KEVIN GAY
United States Air Force

ACM 38525

___ M.J. ___

12 June 2015

Sentence adjudged 30 May 2013 by GCM convened at Joint Base
McGuire-Dix-Lakehurst, New Jersey. Military Judge: Joshua E.
Kastenberg.

Approved Sentence: Bad-conduct discharge, confinement for 5 months and
21 days, forfeiture of all pay and allowances, and reduction to E-3.

Appellate Counsel for the Appellant: Captain Lauren A. Shure.

Appellate Counsel for the United States: Lieutenant Colonel John E. Owen;
Major Matthew J. Neil; and Gerald R. Bruce, Esquire.

Before

MITCHELL, WEBER, CONTOVEROS
Appellate Military Judges

PUBLISHED OPINION OF THE COURT

WEBER, Judge:

The appellant pled not guilty at a general court-martial to four specifications of
larceny, four specifications of wrongful appropriation, one specification of wire fraud,
and one specification of identity theft, in violation of Articles 121 and 134, UCMJ,
10 U.S.C. §§ 921, 934.1 A panel of officer members convicted the appellant of two
larceny specifications, two wrongful appropriation specifications, and the wire fraud and

1
The specification alleging wire fraud incorporated 18 U.S.C. § 1343. The specification alleging identity theft
incorporated 18 U.S.C. § 1028A(a)(1).
identity theft specifications. The members sentenced the appellant to a bad-conduct
discharge, confinement for 6 months, forfeiture of all pay and allowances, and reduction
to the grade of E-3. The convening authority reduced the confinement to 5 months and
21 days, but otherwise approved the sentence as adjudged.

The appellant now alleges that the government violated Article 55, UCMJ,
10 U.S.C. § 855, by subjecting him to cruel and unusual punishment during his post-trial
confinement. During our review of this issue, we ordered additional briefing on the
related issue of whether we could and should grant sentence appropriateness relief under
Article 66(c), UCMJ, 10 U.S.C. § 866(c), resulting from the conditions of the appellant’s
post-trial confinement. Additionally, the appellant requests sentence relief under
United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002), for the government’s delay in
forwarding the record of trial for appellate review. We grant relief as discussed below.

Background

The appellant and Staff Sergeant (SSgt) NH were engaged to be married and lived
together. The two kept their finances separate but were each responsible for certain
household expenses. Each also bought the other gifts, and the appellant took care of
some additional expenses for SSgt NH. SSgt NH had one Visa credit card, plus three
store credit cards.

When SSgt NH departed for a one-year remote assignment, she gave her store
credit cards to the appellant for safekeeping; however, she did not authorize him to use
them or to take out any credit cards in her name. The couple broke up soon after
SSgt NH departed. Several months later, SSgt NH learned that a bill collector was trying
to contact her to collect a debt of about $8,000 owed on a credit card in her name. She
obtained a credit report that revealed she had several other open credit lines with balances
in the thousands of dollars. According to SSgt NH, she did not open these accounts or
authorize anyone else to do so. In addition, the store credit cards—which had no balance
when she departed—now had overdue balances. SSgt NH confronted the appellant over
the telephone, and the appellant made several incriminating statements.

Further investigation revealed the appellant opened several credit cards in
SSgt NH’s name using personal information to which he had access. He then used these
credit cards and left overdue balances on them. Much of this misconduct occurred before
SSgt NH departed for her remote assignment.

During a series of pretext phone calls about this matter, SSgt NH pressed the
appellant for a complete list of credit cards he had taken out in her name. The appellant
demurred, stating his household goods were en route to his mother’s house due to his
pending medical separation, and he could not answer SSgt NH’s question until he could
review his records contained in the shipment. The Air Force Office of Special

2 ACM 38525
Investigations, in conjunction with local law enforcement, obtained a search warrant for
the appellant’s mother’s residence. The search revealed several documents relating to the
appellant’s financial misconduct. In addition, the search revealed two government laptop
computers. These laptops had previously been reported missing and were the subject of
reports of survey that noted a lack of sufficient oversight and safeguards. The appellant
had been one of the individuals responsible for providing this oversight and employing
such safeguards.

Further facts relevant to the assignments of error are discussed below.

Conditions of Post-Trial Confinement

Following announcement of the sentence, the appellant was placed in the
Monmouth County Correctional Institution (MCCI) on 30 May 2013. He was assigned to
a “pod.” While in the pod, the appellant alleged he was confined in proximity to a
foreign national for nine days. The appellant raised this issue in his clemency request,
and the convening authority granted the appellant’s requested relief by disapproving nine
days of the adjudged sentence to confinement for this apparent violation of Article 12,
UCMJ, 10 U.S.C. § 812.

On the ninth day following the appellant’s arrival at MCCI, he was placed in
solitary confinement. As part of his clemency request, the appellant submitted a
complaint under Article 138, UCMJ, 10 U.S.C. § 938, regarding this issue. Attached to
his Article 138, UCMJ, complaint was an affidavit he signed, which stated in relevant
part:

On 7 June 2013, I was moved into solitary
confinement, which segregated me from the foreign national
in Pod F-1 and all other inmates. Upon entering solitary I
was stripped, searched, placed in shackles, put on 23 hour per
day lockdown, denied phone calls and visitation and forced to
use an open caged shower and bathroom. I was released from
solitary on 13 June 2013, after [certain officials from his
squadron] came to check on my living arrangements and
discovered what had happened. I was immediately removed
from solitary per their request to the MCCI staff. I am now
presently housed in Pod F-2 and awaiting transfer to a
military confinement facility.

The appellant also stated that he heard from MCCI personnel that someone at the
base legal office directed the appellant’s placement into solitary confinement. However,
this assertion was merely contained in his complaint letter rather than the accompanying

3 ACM 38525
affidavit. Also attached to the Article 138, UCMJ, complaint was an affidavit signed by
the appellant’s squadron superintendent. It stated in relevant part:

I visited SSgt Kevin Gay at the [MCCI] on 13 June 2013, and
I was alarmed to find that SSgt Gay was in solitary
confinement and brought out in handcuffs and that he had
been in that condition since 7 June 2013. I was accompanied
by [two non-commissioned officers responsible for
confinement at the base security forces squadron]. Upon
learning of SSgt Gay’s living conditions, we immediately
complained to the MCCI staff. [An officer from the
appellant’s squadron] saw to it that SSgt Gay was
immediately released from solitary confinement and placed in
a Pod alongside American Citizens at approximately 1630
hours on 13 June 2013.

I learned from the staff at MCCI that MCCI has a
procedure in place to ensure military members are not placed
in confinement alongside foreign nationals or enemy
prisoners of war. However, according to MCCI staff they
were verbally instructed by personnel at Joint Base McGuire-
Dix-Lakehurst, New Jersey, without explanation, to place
SSgt Gay [into] protective custody, which they did without
question.

The record does not contain evidence of any action taken in response to this
Article 138, UCMJ, complaint. However, the addendum to the staff judge advocate’s
recommendation attached a “memorandum for record” from the base legal office’s chief
of military justice. That memorandum, which was not reduced to an affidavit or sworn
declaration, reads in relevant part as follows:

On 25 September 2013, I called the [MCCI] and spoke
with Officer [CL] of the Intake and Booking office about the
practices and procedures related to individuals placed into
segregation cells. Officer [CL] stated that inmates placed into
segregation are in their cells for 23 hours a day, but are not
restrained by shackles or handcuffs while in the cell. He
stated the only time an inmate is placed into shackles or
handcuffs is during periods that the inmate is being moved
from a cell to another location within the correctional facility.
He estimated that the longest period an inmate is placed into
shackles or handcuffs for movement is when the inmate is
moved to the visiting area, which takes approximately five

4 ACM 38525
 minutes. He stated that while the member is in the visiting
area he is unshackled. He was unaware of how many times
[the appellant] was moved to the visiting area from his
segregated cell. Officer [CL] stated the standard practice is to
strip search inmates as they are placed into segregation, but
no further strip searches are conducted solely due to an
inmate’s segregated status. Officer [CL] confirmed [the
appellant] would have been subjected to a strip search when
he first entered segregation. Finally, Officer [CL] stated that
the shower and bathroom facility in the segregated area is
covered with a curtain material and inmates enter clothed and
then undress and dress behind the curtain material.

The chief of military justice’s memorandum did not dispute the contention that legal
office personnel instructed MCCI officials to place the appellant in solitary confinement,
and it did not address the reason the appellant was placed in solitary confinement. Based
on this memorandum, the staff judge advocate advised against granting relief for the
appellant’s complaint regarding his solitary confinement. The convening authority
followed that advice.

Before this court, the appellant alleges that his placement in solitary confinement,
and the associated conditions of his period in solitary confinement, constitute cruel and
unusual punishment in violation of the Eighth Amendment2 and Article 55, UCMJ.

We review de novo allegations of cruel and unusual punishment. United States v.
White, 54 M.J. 469, 471 (C.A.A.F. 2001).

Both the Eighth Amendment and Article 55, UCMJ, prohibit cruel and unusual
punishment. In general, we apply the Supreme Court’s interpretation of the
Eighth Amendment to claims raised under Article 55, UCMJ, except where legislative
intent to provide greater protections under Article 55, UCMJ, is apparent. United States
v. Avila, 53 M.J. 99, 101 (C.A.A.F. 2000) (citing United States v. Wappler,
9 C.M.R. 23, 26 (C.M.A. 1953)).

“[T]he Eighth Amendment prohibits two types of punishments: (1) those
‘incompatible with the evolving standards of decency that mark the progress of a
maturing society’ or (2) those ‘which involve the unnecessary and wanton infliction of
pain.’” United States v. Lovett, 63 M.J. 211, 215 (C.A.A.F. 2006) (quoting Estelle v.
Gamble, 429 U.S. 97, 102–03 (1976)). A violation of the Eighth Amendment is shown
by demonstrating: “(1) an objectively, sufficiently serious act or omission resulting in the
denial of necessities; (2) a culpable state of mind on the part of prison officials amounting

2
U.S. CONST. amend. VIII.

5 ACM 38525
to deliberate indifference to [the appellant’s] health and safety; and (3) that [the
appellant] has exhausted the prisoner-grievance system . . . and that he has petitioned for
relief under Article 138, UCMJ.” Id. (alteration in original) (footnotes omitted) (internal
quotation marks omitted).

Before applying these standards, we must first determine what facts are properly
before this court, and whether we are required to remand this case for a post-trial
factfinding hearing. In United States v. Fagan, 59 M.J. 238, 241 (C.A.A.F. 2004), our
superior court determined that the framework of United States v. Ginn, 47 M.J. 236
(C.A.A.F. 1997), governs our determination of whether a post-trial factfinding hearing is
necessary to resolve “a post-trial claim that is framed by conflicting affidavits.”
Therefore, the following principles (originally set forth to deal with post-trial claims of
ineffective assistance of counsel) determine when a post-trial factfinding hearing is
required:

First, if the facts alleged in the affidavit allege an error
that would not result in relief even if any factual dispute were
resolved in appellant’s favor, the claim may be rejected on
that basis.

Second, if the affidavit does not set forth specific facts
but consists instead of speculative or conclusory observations,
the claim may be rejected on that basis.

Third, if the affidavit is factually adequate on its face
to state a claim of legal error and the Government either does
not contest the relevant facts or offers an affidavit that
expressly agrees with those facts, the court can proceed to
decide the legal issue on the basis of those uncontroverted
facts.

Fourth, if the affidavit is factually adequate on its face
but the appellate filings and the record as a whole
“compellingly demonstrate” the improbability of those facts,
the Court may discount those factual assertions and decide the
legal issue.

Fifth, when an appellate claim of ineffective
representation contradicts a matter that is within the record of
a guilty plea, an appellate court may decide the issue on the
basis of the appellate file and record (including the
admissions made in the plea inquiry at trial and appellant’s
expression of satisfaction with counsel at trial) unless the

6 ACM 38525
 appellant sets forth facts that would rationally explain why he
would have made such statements at trial but not upon appeal.

Sixth, the Court of Criminal Appeals is required to
order a factfinding hearing only when the above-stated
circumstances are not met. In such circumstances the court
must remand the case to the trial level for a DuBay
proceeding. During appellate review of the DuBay
proceeding, the court may exercise its Article 66 factfinding
power and decide the legal issue.

Ginn, 47 M.J. at 248; see also United States v. DuBay, 37 C.M.R. 411 (C.M.A. 1967).

The Ginn framework does not require us to remand this case for a factfinding
hearing, for two reasons. First, this case does not involve “a post-trial claim that is
framed by conflicting affidavits.” The appellant submitted two affidavits to support his
claims of cruel and unusual punishment, but in clemency and on appeal, the government
has made no effort to provide an affidavit to rebut the appellant’s contentions despite
ample opportunity to do so. Instead, the government chose to wholly rely on an unsworn
memorandum for record.3 Additionally, the third Ginn factor largely applies because for
the most part, the chief of military justice’s memorandum did not contest the appellant’s
version of the facts. The memorandum did not dispute that the appellant was placed in
solitary confinement, did not contest that base legal office personnel directed his
placement in solitary confinement, did not contest that the appellant was placed on
23-hour per day lockdown and denied phone calls and visitation, did not contest that the
appellant was handcuffed or shackled to a certain extent, and did not contest that the
appellant could have been placed in another pod to avoid his association with a foreign
national rather than placed in solitary confinement. The memorandum only addressed
discrete aspects of the appellant’s claim, such as the extent of the use of handcuffs or
shackles and his claim that he was forced to use an open caged shower.

With this factual framework in mind, we find no violation of the Eighth
Amendment or Article 55, UCMJ. Both our superior court and federal civilian courts
have held that solitary confinement, per se, does not constitute cruel and unusual

3
If the memorandum for record was submitted directly to this court to address this post-trial issue, this court would
not normally admit or consider it. See A.F. CT. CRIM. APP. R. PRAC. AND PROC. 23(b) (stating that any statement
for consideration by the court “on any matter . . . shall be made either as an affidavit or as an unsworn declaration
under penalty of perjury pursuant to 28 U.S.C. § 1746”). This rule is based in part on United States v. Ginn,
47 M.J. 236, 248 (C.A.A.F. 1997), which deals with this court’s ability to resolve “a post-trial claim that is framed
by conflicting affidavits.” United States v. Fagan, 59 M.J. 238, 241 (C.A.A.F. 2004). As we have elected to
consider the substance of the memorandum of record in resolving this issue, we need not decide whether the
government may, as a legal matter, counter claims raised in affidavits submitted in clemency with an unsworn
memorandum. We simply note that this is not a recommended practice and may lead to a convening authority or
this court giving less weight to the assertions raised in the unsworn memorandum.

7 ACM 38525
punishment. See Avila, 53 M.J. at 101 (surveying federal cases). Rather, we review the
specific conditions of solitary confinement to determine whether the confinement
involved deprivation of basic needs or unnecessary infliction of pain. Id. at 101–02. The
appellant’s complaint does not amount to a serious act or omission resulting in a denial of
necessities, and he claims no infliction of pain on him. Typically, such serious acts or
omissions include matters such as denial of needed medical attention, proper food, or
sanitary living conditions. Physical abuse may also qualify under this standard. Id.

Even accepting the appellant’s Article 138, UCMJ, complaint at face value, we
must note that the appellant claims nothing unusual about the conditions of his solitary
confinement and does not show he was harmed physically or in any other appreciable
way. Instead, the appellant’s contentions smack more of “routine conditions associated
with punitive or administrative segregation,” which do not “rise to the level of a
deprivation of life’s necessities and violation of the Eighth Amendment.” Id. at 102.
Concerning the use of shackles, we recognize that the use of leg irons may in some
circumstances rise to the level of an Article 55, UCMJ, violation, as the article
specifically sets limits on the use of irons. United States v. Wise, 64 M.J. 468, 470
(C.A.A.F. 2007). However, we see no evidence in the record that the use of shackles was
not for the purpose of safe custody, which is all that is required under Article 55, UCMJ.

In short, the appellant has not established that he was subject to cruel or unusual
punishment. Solitary confinement per se is not incompatible with the evolving standards
of decency that mark the progress of a maturing society, and there is no evidence of the
unnecessary and wanton infliction of pain. Under the three-part Lovett test, we find the
third factor is met because the appellant (or his unit) did raise this to prison officials and
he petitioned for relief under Article 138, UCMJ. Regardless of whether the second
factor is met (a culpable state of mind on the part of prison officials amounting to
deliberate indifference to the appellant’s health and safety), the appellant’s claim fails
under the first factor. No objectively, sufficiently serious act or omission occurred that
resulted in the denial of necessities. The appellant is not entitled to relief for his
allegation of cruel and unusual punishment.

This does not end our analysis of this issue, however. Under our broad
Article 66(c), UCMJ, authority, we retain responsibility in each case we review to
determine whether the adjudged and approved sentence is appropriate. Under
Article 66(c), UCMJ, our sentence appropriateness authority is to be based on our review
of the “entire record,” which necessarily includes the appellant’s allegation of the
conditions of his post-trial confinement. See United States v. Towns, 52 M.J. 830, 833
(A.F. Ct. Crim. App. 2000) (noting that matters submitted to the convening authority for
clemency purposes are available to this court to aid us in determining the appropriateness
of a sentence). While we may not engage in acts of clemency, we hold that we may
consider post-trial confinement conditions as part of our overall sentence appropriateness
determination, even where those allegations do not rise to the level of an

8 ACM 38525
Eighth Amendment or Article 55, UCMJ, violation. Our superior court has specifically
recognized that the courts of criminal appeals have broad discretion to grant or deny
relief for unreasonable or unexplained post-trial delay, even where the delay does not rise
to the level of a due process violation. Tardif, 57 M.J. at 224. It necessarily follows that
we maintain similar discretion for post-trial confinement conditions that do not rise to the
level of a constitutional or statutory violation. This fits easily within our broad charter to
“do justice.” United States v. Claxton, 32 M.J. 159, 162 (C.M.A. 1991).

Our superior court’s decision in Fagan supports our conclusion. In Fagan, the
Army Court of Criminal Appeals declined to order a post-trial factfinding hearing and
instead decided to “moot the issue” by granting sentence appropriateness relief.
Fagan, 59 M.J. at 240–41. Our superior court held the court erred in failing to apply the
Ginn factors before moving directly to grant sentence appropriateness relief. However,
that was the extent of the Fagan decision. The court did not hold that the service courts
are prohibited from granting sentence appropriateness relief rising from complaints of
post-trial conditions. Rather, it more narrowly held that our sentence appropriateness
authority “does not come into play” until the Ginn factors are employed to resolve
competing factual claims. Id. at 244; see also United States v. Zarbatany,
70 M.J. 169, 177 (C.A.A.F. 2011) (indicating that a court of criminal appeals could
employ its sentence appropriateness authority in determining whether meaningful relief
for pretrial confinement credit was required); Towns, 52 M.J. at 833 (“When an appellant
claims cruel and unusual punishment, he is claiming he has been treated unfairly. Such a
claim is a claim of unjust treatment, not a request for mercy. We therefore hold that
Article 66(c), UCMJ, bestows jurisdiction on this Court to consider claims of cruel and
unusual post-trial treatment in cases properly referred to us. This jurisdiction is limited to
consideration of these claims as part of our determination of sentence appropriateness.”);
United States v. Pena, 61 M.J. 776, 778 (A.F. Ct. Crim. App. 2005) (denying challenge to
mandatory release program but holding that the court had authority under Article 66(c),
UCMJ, to review the issue).

Under the facts of this particular case, we elect to grant sentence appropriateness
relief even though the appellant’s treatment does not constitute an Eighth Amendment or
Article 55, UCMJ, violation. While we would be within our authority to consider the
entirety of the affidavits accompanying the appellant’s Article 138, UCMJ, complaint
(because the government did not submit a contrary affidavit or declaration), we limit our
consideration solely to matters the government’s memorandum did not dispute. The
following facts inform our decision that the appellant’s post-trial treatment has rendered
his sentence inappropriately severe:

1. No valid reason has been offered for placing the appellant in solitary
confinement. The chief of military justice’s memorandum did not indicate the
appellant was placed in solitary confinement for discipline, safety, or any other
legitimate reason.

9 ACM 38525
 2. If the appellant was placed in solitary confinement solely to prevent him from
being housed with a foreign national, this does not constitute an acceptable reason
for placing the appellant in solitary confinement. See United States v. McPherson,
73 M.J. 393 (C.A.A.F. 2014) (Baker, C.J., concurring in part and dissenting in
part) (generally noting the concern that servicemembers could be placed in solitary
confinement regardless of their behavior to avoid giving rise to relief under Article
12, UCMJ, for confining them in association with foreign nationals).

3. The unrebutted assertion in the appellant’s superintendent’s affidavit indicates
that some Air Force official directed the appellant to be placed in solitary
confinement.

4. When unit leadership complained to MCCI officials, the appellant was easily
transferred to another pod that did not contain foreign nationals.

Under these particular facts, we find the appellant’s approved sentence is not
appropriate for this appellant and his offenses. We discuss below the relief to be granted.

Post-Trial Processing Delay

In United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006), our superior court
established guidelines that trigger a presumption of unreasonable delay, including where
the record of trial is not docketed with the court of criminal appeals within 30 days of the
convening authority’s action. Furthermore, Article 66(c), UCMJ, empowers the service
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). Tardif, 57 M.J.
at 224.

The appellant’s court-martial concluded on 30 May 2013. The convening
authority took action on 18 October 2013, 141 days after the date sentence was
announced. This period exceeds the 120-day standard outlined in Moreno, although the
appellant has not complained of this delay on appeal. The appellant’s case was then
docketed with this court on 7 February 2014, 112 days after action. The appellant does
not allege he suffered any prejudice as a result of the delay in docketing the record of trial
with this court. Rather, the appellant asserts Tardif relief is warranted due to
unreasonable and unexplained post-trial delay.

As we have noted before, the 30-day post-trial processing standard established in
Moreno is not, by any means, a particularly onerous processing goal. In fact, a delay in
this phase of post-trial processing is “the least defensible of all and worthy of the least
patience.” United States v. Dunbar, 31 M.J. 70, 73 (C.M.A. 1990). “[T]his stage
involves no discretion or judgment; and, unlike an appellate court’s consideration of an

10 ACM 38525
appeal, this stage involves no complex legal or factual issues or weighing of policy
considerations.” Id. There may be valid reasons that justify exceeding the standard for
this administrative act, but the government has offered no such reason in this case and our
review of the record finds no justification for the delay.

In deciding whether to exercise our Article 66(c), UCMJ, authority in this context,
we must “determine what findings and sentence ‘should be approved,’ based on all the
facts and circumstances reflected in the record, including the unexplained and
unreasonable post-trial delay.” Tardif, 57 M.J. at 224. In United States v. Toohey,
63 M.J. 353, 362 (C.A.A.F. 2006), our superior court held that a service court may grant
relief even when the delay was not “most extraordinary.” The court held: “The essential
inquiry remains appropriateness in light of all circumstances, and no single predicate
criteria of ‘most extraordinary’ should be erected to foreclose application of Article
66(c), UCMJ, consideration or relief.” Id.

In light of our superior court’s guidance, and keeping in mind that our overriding
standard under Article 66(c), UCMJ, is what portion of the sentence “should be
approved,” we consider the following factors relevant in considering whether Tardif
relief is appropriate:

1. How long did the delay exceed the standards set forth in United States v.
Moreno, 63 M.J. 129 (C.A.A.F. 2006)?

2. What reasons, if any, has the government set forth for the delay? Is there any
evidence of bad faith or gross indifference to the overall post-trial processing of
this case?

3. Keeping in mind that our goal under Tardif is not to analyze for prejudice, is
there nonetheless some evidence of harm (either to the appellant or institutionally)
caused by the delay?

4. Has the delay lessened the disciplinary effect of any particular aspect of the
sentence, and is relief consistent with the dual goals of justice and good order and
discipline?

5. Is there any evidence of institutional neglect concerning timely post-trial
processing, either across the service or at a particular installation?

6. Given the passage of time, can this court provide meaningful relief in this
particular situation?

11 ACM 38525
We consider no single factor dispositive, and a given case may reveal other appropriate
considerations for this court in deciding whether post-trial delay has rendered an
appellant’s sentence inappropriate.4

Applying these standards to this case, we find granting sentencing relief is
appropriate in this case. We recognize appellate defense counsel took 301 days to file an
assignment of errors in this matter. The government’s delays in obtaining convening
authority action and forwarding the record for appellate review are significantly less than
the time it took appellate defense counsel to file a brief. Nonetheless, the government
made no effort to explain the delays in processing this case, and we find no good
explanation in the record for the delays, either before or after action. The government
exceeded the Moreno standard for docketing a case with this court by nearly a factor of
four, and this came after exceeding the Moreno standard for obtaining action. Under the
facts of this case, we find we may grant meaningful relief, and the significant delays in
processing this case diminish the disciplinary effect of the appellant’s sentence.

Relief

The appellant’s sentence is therefore inappropriately severe both on the basis of
his post-trial confinement conditions and the government’s delay in forwarding the
record of trial for our review. Having reviewed the entire record of trial, and considering
both bases for finding the approved sentence inappropriate, we find the following
sentence is appropriate: a bad-conduct discharge, confinement for 3 months, and
reduction to E-3.

Conclusion

The approved findings and the sentence, as reassessed, are correct in law and fact,
and no error materially prejudicial to the substantial rights of the appellant occurred.5
Articles 59(a) and 66(c), UCMJ.

4
This court recognizes it has previously applied the non-exhausitve list of factors outlined in United States v.
Brown, 62 M.J. 602, 606–07 (N.M. Ct. Crim. App. 2005), to analyze such issues. See, e.g., United States v.
Bischoff, 74 M.J. 664 (A.F. Ct. Crim. App. 2015). However, the factors articulated in our current opinion will more
often answer the question as to how non-prejudical post-trial delay weighs in the exercise of our broad authority to
determine whether relief should be granted.
5
This court also specifically considered whether the appellant’s convictions for wrongful appropriation from
financial institutions were properly charged under United States v. Lubasky, 68 M.J. 260 (C.A.A.F. 2010), and
United States v. Sharpton, 73 M.J. 299 (C.A.A.F. 2014). The thrust of both decisions is that the properly charged
victim of a larceny (or wrongful appropriation) is the person or entity that suffers the financial loss or is deprived of
the use or benefit of the property at issue. Here, sufficient evidence existed in the record to demonstrate that the
financial institutions suffered a financial loss as a result of the appellant’s offenses. We find these offenses were
properly charged.

12 ACM 38525
Accordingly, the approved findings and the sentence, as reassessed, are AFFIRMED.

FOR THE COURT

STEVEN LUCAS
Clerk of the Court

13 ACM 38525