United States v. Peacock

UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Airman First Class ANTHONY L.W. PEACOCK
United States Air Force

ACM 38043 (rem)

25 August 2015

Sentence adjudged 27 August 2011 by GCM convened at Royal Air Force
Mildenhall, United Kingdom. Military Judge: Jefferson B. Brown.

Approved sentence: Bad-conduct discharge and confinement for 2 months.

Appellate Counsel for the Appellant: Major Thomas A. Smith and
Major Luke D. Wilson.

Appellate Counsel for the United States: Colonel Don M. Christensen;
Lieutenant Colonel Jennifer A. Porter; Lieutenant Colonel C. Taylor Smith;
Major Brian C. Mason; and Gerald R. Bruce, Esquire.

Before

ALLRED, MITCHELL and MAYBERRY
Appellate Military Judges

UPON REMAND

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
under AFCCA Rule of Practice and Procedure 18.4.

PER CURIAM:

The appellant was tried by a general court-martial composed of officer and
enlisted members. Contrary to his plea, the appellant was found guilty of one
specification of assault consummated by a battery, in violation of Article 128, UCMJ,
10 U.S.C. § 928.1 The members sentenced the appellant to a bad-conduct discharge,
1
The appellant was acquitted of two additional specifications of assault consummated by a battery under
Article 128, UCMJ, 10 U.S.C. § 928; seven specifications involving sexual offenses under Article 120, UCMJ,
10 U.S.C. § 920; and one specification of sodomy under Article 125, UCMJ, 10 U.S.C. § 925.
confinement for 3 months, and reduction to E-1. The convening authority approved only
so much of the sentence that called for a bad-conduct discharge and confinement for
2 months.

Procedural History

On 25 January 2013, The Judge Advocate General of the Air Force appointed a
retired Air Force officer and former appellate military judge, who was currently
employed as a civilian litigation attorney in the Department of the Air Force to the
position of appellate military judge on the Air Force Court of Criminal Appeals based on
Article 66(a), UCMJ, 10 U.S.C. § 866(a). On 25 June 2013, the Secretary of Defense,
pursuant to his purported authority from 5 U.S.C. § 3101 et seq. appointed the same
civilian employee to serve as appellate military judge on the Air Force Court of Criminal
Appeals.

When the appellant’s case was initially before us, the appellant argued (1) that the
evidence is legally and factually insufficient to support his conviction for assault
consummated by a battery, and (2) that his sentence is inappropriately severe.

On 26 April 2013, this court disagreed and issued a decision in which it affirmed
the findings and sentence. United States v. Peacock, ACM 38043(A.F. Ct. Crim. App.
26 April 2013) (unpub. op.). The appointed civilian employee was a member of the panel
that decided the case. Following the subsequent appointment by the Secretary of Defense
on 25 June 2013, this court reconsidered its decision sua sponte and on 23 July 2013
issued a new opinion upon reconsideration in which it again affirmed the findings and
sentence in the appellant’s case. United States v. Peacock, ACM 38043 (recon) (A.F. Ct.
Crim. App. 23 July 2013) (unpub. op.).

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 the earlier appointment was “invalid and of no effect.” On 11 March 2015, our
superior court concluded the improper appointment of the civilian employee by the
Secretary of Defense was not waived by an earlier failure to object. United States v.
Jones, 74 M.J. 95 (C.A.A.F. 2015). Pursuant to Janssen and Jones, our superior court
reversed our decision in this case and remanded it to us for a new review under Article
66, UCMJ, before a properly constituted panel. United States v. Peacock, 74 M.J. ___
No. 14-0033/AF (C.A.A.F. 2015) (Daily Journal 30 March 2015). In addition to
reviewing the prior pleadings, we issued an order authorizing the appellant to file
supplemental briefing.

In light of this ruling by our superior court, we have reviewed the appellant’s case.
Our review includes the appellant’s previous filings and the previous opinions issued by

2 ACM 38043 (rem)
this court, as well as a supplemental assignment of error in which the appellant asserts he
is entitled to relief due to excessive post-trial processing delays.2 Finding no error, we
affirm the findings and the sentence.

Background

The appellant and his wife, SP, were married in November 2010. Shortly after
their marriage began, the appellant and SP started having marital problems. On
22 January 2011, while visiting the appellant’s supervisor, MM, and his wife, the
appellant and SP had an argument. The appellant left, and SP spent the night at MM’s
home.

The next day, on 23 January 2011, the appellant returned to MM’s home, where
the argument continued. They eventually went outside. According to SP, the appellant
became “very aggressive.” She remembered pointing her finger at him and telling him to
“just stop.” She testified that he then grabbed her arms and shoulder area and told her not
to point her finger at him. SP said the appellant grabbed her as she tried to get away,
turned her around, and punched her with a closed fist on the left side of her face. She
testified that she continued to try to get away, but the appellant turned her around and
slapped her on the right side of her face.3 SP then “hit him in his nose” as she tried to get
him off of her. SP stated that she got away and:

[I] walk[ed] swiftly towards the gate to get inside to where
people could see. I remember [the appellant] grabbing me
around my neck [and] shoulder area with one arm and the
other one around my waist. At first he tried to pull me back
and I was trying to walk forward.

She further testified, “I remember I got to the gate door and then he started [to] forcibly
walk with me and I was scared. I was scared that I was going to hit the glass sliding
door. I was scared that was his intention. And at that time [MM] had come out.”

MM testified that he was inside his house when the appellant and SP began
arguing. Once he became aware of the argument, MM went outside, where he saw “[the
appellant] with his hands up and his right arm was up by her right shoulder and the left
arm was by the left side of her torso. With her jacket [he] could not see [the appellant’s]
actual hands whether they were on or grabbing or anything like that. [He] just saw the
way [the appellant’s] arms were up.” MM also testified that the appellant was not
“repeatedly shoving” but was moving SP “toward [the inside of] our yard. And she was

2
This issue is raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
3
The appellant was charged with unlawfully slapping SP on the face with his hand, and unlawfully punching her in
the side of the head with his fist, both in violation of Article 128, UCMJ; he was found not guilty of these two
specifications. We include the evidence regarding these offenses due to their relevance to our analysis of the
affirmative defense of self-defense.

3 ACM 38043 (rem)
leaning back as if she was trying to walk in the opposite direction, but the way she was
being moved you could tell it wasn’t of her own accord.”

MM took SP to the emergency room, where the treating physician noted that SP
had some “tenderness on the back of her neck.”

Legal and Factual Sufficiency of the Evidence

The appellant argues that Specification 2 of the Charge is legally and factually
insufficient to support his conviction for assault consummated by a battery. We disagree.

Under Article 66(c), UCMJ, 10 U.S.C. § 866(c), we review issues of legal and
factual sufficiency de novo. United States v. Washington, 57 M.J. 394, 399
(C.A.A.F. 2002). “The test for legal sufficiency of the evidence is ‘whether, considering
the evidence in the light most favorable to the prosecution, a reasonable fact finder could
have found all the essential elements beyond a reasonable doubt.’” United States v.
Humpherys, 57 M.J. 83, 94 (C.A.A.F. 2002) (quoting United States v. Turner,
25 M.J. 324, 324 (C.M.A. 1987) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
In resolving legal-sufficiency questions, “[we are] bound to draw every reasonable
inference from the evidence of record in favor of the prosecution.” United States v.
McGinty, 38 M.J. 131, 132 (C.M.A. 1993) (quoting United States v. Blocker, 32 M.J.
281, 284 (C.M.A. 1991)). See also United States v. Young, 64 M.J. 404, 407
(C.A.A.F. 2007). Our assessment of legal sufficiency is limited to the evidence produced
at trial. United States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993).

The test for factual sufficiency is “whether, after weighing the evidence in the record of
trial and making allowances for not having personally observed the witnesses, [we] are
[ourselves] convinced of the accused’s guilt beyond a reasonable doubt.” Turner, 25
M.J. at 325. In conducting this unique appellate role, we take “a fresh, impartial look at
the evidence,” applying “neither a presumption of innocence nor a presumption of guilt”
to “make [our] own independent determination as to whether the evidence constitutes
proof of each required element beyond a reasonable doubt.” Washington,
57 M.J. at 399. Review of the evidence is limited to the entire record, which includes
only the evidence admitted at trial and exposed to the crucible of
cross-examination. Article 66(c), UCMJ; United States v. Bethea, 46 C.M.R. 223,
224-25 (C.M.A. 1973).

We find the evidence legally and factually sufficient to support the appellant’s
conviction of assault consummated by a battery by unlawfully grabbing Ms. SP on the
neck and torso with his hand, as set forth in Specification 2 of the Charge . The elements
of that offense are (1) that the accused did bodily harm to a certain person, and (2) that
the bodily harm was done with unlawful force or violence. Manual for Courts-Martial,
United States (MCM), Part IV, ¶ 54.b.(2) (2012 ed.). “Bodily harm” is any offensive

4 ACM 38043 (rem)
touching of another, however slight. MCM, Part IV, ¶ 54.c.(1)(a). “Unlawful force or
violence” is physical force used “without legal justification or excuse and without the
lawful consent of the person affected.” Id.

The evidence shows the appellant did bodily harm to SP with unlawful force or
violence. He applied force to SP with no legal justification or excuse, and there is no
evidence to show that SP consented to the offensive touching. SP testified that, after the
appellant punched and slapped her, she hit him in the nose, got away from him and
“walk[ed] swiftly towards the gate to get inside to where people could see.” At that
point, the appellant grabbed her around her “neck [and] shoulder area with one arm and
the other one around [her] waist.” The evidence also shows that the appellant “tried to
pull [SP] back” as she was “trying to walk forward.” At one point, the appellant started
to “forcibly walk” SP such that she was scared she was going to hit the sliding glass door.
MM corroborates SP’s testimony to the extent that he witnessed the appellant “with his
hands up and his right arm was up by [SP’s] right shoulder and the left arm was by the
left side of her torso.” He also witnessed the appellant moving SP “toward [the inside of]
our yard. And she was leaning back as if she was trying to walk in the opposite direction,
but the way she was being moved you could tell it wasn’t of her own accord.”

We have two additional observations about the evidence. First, the military judge
instructed the members on the concept of self-defense. Because of the conviction, we can
surmise the members concluded that self-defense did not apply to this portion of the
altercation and argument between the appellant and SP. We agree. The facts show that,
after SP and the appellant punched and slapped each other, SP had disengaged and
walked swiftly away from the appellant. Thus, when the appellant grabbed SP from
behind, there is nothing in the record to suggest that she was about to inflict bodily harm
on the appellant.

Second, the military judge also instructed the members about witness credibility,
the character of the appellant, and the character of witnesses for peacefulness and
untruthfulness. The record shows that the defense vigorously attacked the credibility of
SP and MM. For example, the record shows that SP and MM were “romantically
involved” at the time of the appellant’s court-martial, and both had initially lied to
authorities about the nature of their relationship. Additionally, the defense presented
evidence that the appellant was a peaceful person and evidence that SP was neither a
peaceful nor a truthful person. MM’s wife also submitted an affidavit attesting that MM
was not a truthful person. The members heard the testimony, personally observed the
witnesses, and were properly instructed on how to evaluate witness credibility and
believability. The evidence need not be free of all conflict for a rational fact finder to
convict an appellant beyond a reasonable doubt. As may have occurred in this case, the
members may believe “one part of a witness’ testimony and disbelieve another.” United
States v. Harris, 8 M.J. 52, 59 (C.M.A. 1979). See also United States v. Lips,
22 M.J. 679, 684 (A.F.C.M.R. 1986).

5 ACM 38043 (rem)
 We have considered the evidence in the light most favorable to the prosecution
and find the evidence legally sufficient to support the conviction. Having made
allowances for not having personally observed the witnesses, we are ourselves convinced
of his guilt beyond a reasonable doubt.

Appellate Review Time Standards

The appellant argues, citing United States v. Moreno, 63 M.J. 129, 135
(C.A.A.F. 2006), that the unreasonable post-trial delay from the date the case was first
docketed with this court in November 2011 until this opinion warrants relief. The
appellant further cites to United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002), noting this
court’s broad power and responsibility to affirm only those findings and sentence that
should be approved.

We review de novo “[w]hether an appellant has been denied [his] 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.
United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006). 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 v. Wingo, 407 U.S. 514 (1972), 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.” United States v.
Mizgala, 61 M.J. 122, 129 (C.A.A.F. 2005); see also Barker, 407 U.S. at 530.

This case was originally docketed with this court on 15 November 2011 and our
initial decision was issued on 26 April 2013, 17 months later.4 This period of time did
not violate Moreno standards. We then sua sponte reconsidered our decision and issued
an opinion on 23 July 2013, more than 20 months after the initial docketing. The Moreno
standards were developed to deter excessive systemic delays in post-trial and appellate
processing. Moreno, at 142. We decline to adopt a time standard that would discourage
reconsideration, either sua sponte or at the request of either party. When the initial
decision is issued within the 18 month Moreno standard, but the subsequent decision on
reconsideration is more than 18 months after docketing we will not presume an
unreasonable delay; instead we will focus on the standards established in Barker. The
first factor is a threshold one, the full due process analysis is not triggered unless the

4
This case was docketed before this court on 11 November 2011, 39 days after the convening authority’s action of
7 October 2011. This 39-day delay is presumptively unreasonable. See United States v. Moreno, 63 M.J. 129, 142
(C.A.A.F. 2006). Although the appellant has not sought relief for this period of delay, we have conducted an
analysis of the four Barker factors. Upon our review of the factors, we conclude the delay was harmless under the
Barker analysis.

6 ACM 38043 (rem)
delay is facially unreasonable. Toohey, 60 M.J. at 102. We conclude that three months
for reconsideration is not unreasonable and therefore we do not examine the remaining
Barker factors.

We also examine the time subsequent to our July 2013 decision. 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). The time between
our superior court’s action to return the record of trial to our court for our action and this
decision has not exceeded 18 months; therefore, the Moreno presumption of unreasonable
delay is not triggered. Mackie at 136. The appellant argues that because neither of the
previous decisions were issued by a properly constituted panel we should consider the
time from initial docketing on 15 November 2011 until this opinion as uninterrupted for
Moreno analysis. We reject the appellant’s argument that, because the Secretary of
Defense’s appointment of the civilian employee was invalid and of no effect, the Moreno
clock was not tolled by our earlier decisions.5

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). Tardif, 57 M.J. at 224; see also
United States v. Harvey, 64 M.J. 13, 24 (C.A.A.F. 2006). In United States v. Gay,
74 M.J. 736, (A.F. Ct. Crim. App. 2015), we identified a list of factors to consider in
evaluating whether Article 66(c), UCMJ, relief should be granted for post-trial delay.
Those factors include how long the delay exceeded appellate review standards, the
reasons for the delay, whether the government acted with bad faith or gross indifference,
evidence of institutional neglect, harm to the appellant or to the institution, if relief is
consistent with the goals of both justice and good order and discipline, and can this court
provide any meaningful relief. Id. No single factor is dispositive and we may consider
other factors as appropriate. Id.

As we have in another case with similar appellate processing, we have determined
that it is appropriate to consider the full length of time from initial docketing until our
decision in reconsideration. See, United States v. Bischoff, 74 M.J. 664,
(A.F. Ct. Crim. App. 2015). We find there was no bad faith or gross negligence in the
post-trial processing. The appellant did not raise any issue of speedy appellate review
until he filed his supplemental pleading on 4 May 2015. The reason for the delay after
our initial decision was to allow this court and our superior court to fully consider a
constitutional issue of first impression about whether the Secretary of Defense has the

5
Alternatively, if the standards set forth in United States v. Moreno, 63 M.J. 129, 135 (C.A.A.F. 2006), are violated,
we are convinced that the error is harmless beyond a reasonable doubt.

7 ACM 38043 (rem)
authority under the Appointments Clause6 to appoint civilian employees to the service
courts of criminal appeals. See Janssen, 73 M.J. at 221. While the answer may seem
clear now with the advantage of subsequent decisions, we note that the appellant’s initial
petition to our superior court did not specify the appointment as an error. We find no
evidence of harm to the integrity of the military justice system by allowing the full
appellate review of this novel issue. Furthermore, the impact of any delay was mitigated
when we specifically allowed the appellant to file a supplemental assignment of error.
We have the authority to tailor an appropriate remedy without giving the appellant a
windfall. See Tardif, 57 M.J. at 225. As to harm, the appellant complains that he
continued to receive tax forms for 2012 and 2013 from the United States Air Force,
imposing upon him tax liability for an income he did not receive. Although the putative
wages were not large, the appellant complained that because of this oversight he was
placed in a higher tax bracket and was unable to receive certain financial governmental
assistance, such as the Earned Income Tax Credit. We also consider that the government
initially failed to docket this case in a timely manner. We have expressly considered
whether we should reduce some or all of the appellant’s sentence. Based on our review
of the entire record, we conclude that sentence relief under Article 66, UCMJ, is not
warranted.7

Sentence Severity

This court reviews sentence appropriateness de novo. United States v. Baier,
60 M.J. 382, 383-84 (C.A.A.F. 2005). We “may affirm only such findings of guilty and
the sentence or such part or amount of the sentence, as [we find] correct in law and fact
and determine[], on the basis of the entire record, should be approved.” Article 66(c),
UCMJ. We assess sentence appropriateness by considering the particular appellant, the
nature and seriousness of the offense, the appellant’s record of service, and all matters
contained in the record of trial. United States v. Snelling, 14 M.J. 267, 268 (C.M.A.
1982); United States v. Bare, 63 M.J. 707, 714 (A.F. Ct. Crim. App. 2006), aff’d,
65 M.J. 35 (C.A.A.F. 2007). We have a great deal of discretion in determining whether a
particular sentence is appropriate but are not authorized to engage in exercises of
clemency. United States v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999); United States v.
Healy, 26 M.J. 394, 395–96 (C.M.A. 1988).

We have given individualized consideration to this particular appellant, the nature
and seriousness of the offense, the appellant’s record of service, and all other matters
contained in the record of trial. In this case, the appellant assaulted his wife. Moreover,
6
U.S. CONST. art. II, § 2, cl. 2.
7
Our review is limited to relief under Article 66, UCMJ, 10 U.S.C. § 866. We expressly do not decide if the
appellant has any valid pay related claim issues against the United States as this is not within our jurisdiction.
United States v. Dodge, 60 M.J. 873, 878 (A.F. Ct. Crim. App. 2005). This decision does not foreclose the appellant
from pursuing claims in the United States Claims Court. Id.; Keys v. Cole, 31 M.J. 228, 234 (C.M.A. 1990); see,
e.g., Combs v. United States, 50 Fed. Cl. 592 (Fed. Cl. 2001).

8 ACM 38043 (rem)
the record shows that the appellant had received five letters of reprimand and counseling
during his nearly three years of military service. Additionally, the convening authority
considered the appellant’s clemency submissions and reduced his sentence to
confinement by one month and disapproved the reduction in rank. Under these
circumstances, we find the approved sentence is appropriate.

Conclusion

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

FOR THE COURT

STEVEN LUCAS
Clerk of the Court

9 ACM 38043 (rem)