United States v. Johnson

UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Airman First Class DEVON P. JOHNSON
United States Air Force

ACM S32047 (rem)

10 September 2015

Sentence adjudged 8 February 2012 by SPCM convened at Francis E.
Warren Air Force Base, Wyoming. Military Judge: Jeffrey A. Ferguson.

Approved Sentence: Bad-conduct discharge, confinement for 30 days,
forfeiture of $745.00 pay per month for 1 month, and reduction to E-1.

Appellate Counsel for the Appellant: Major Christopher D. James.

Appellate Counsel for the United States: Lieutenant Colonel Jennifer A.
Porter and Mr. Gerald R. Bruce, Esquire.

Before

MITCHELL, HECKER, and TELLER
Appellate Military Judges

OPINION OF THE COURT

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent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.

MITCHELL, Senior Judge:

Appellant was convicted, contrary to his pleas, by a special court-martial
composed of officer members, of distributing marijuana, in violation of Article 112a,
UCMJ, 10 U.S.C. § 912a. The adjudged and approved sentence was a bad-conduct
discharge, confinement for 30 days, forfeiture of $745 pay per month for 1 month, and
reduction to E-1.
 On appeal, Appellant avers that (1) the evidence is factually and legally
insufficient to support the finding of guilty and (2) the record is incomplete because the
findings instructions in the record of trial are not the findings instructions that were
presented to the members.

Background

Appellant was a 21-year-old Airman with two years in service at the time of his
court-martial. He was charged with one specification of using marijuana on divers
occasions and one specification of distributing marijuana, both in violation of Article
112a, UCMJ. A panel of officer members acquitted Appellant of the use specification
and convicted him of the distribution specification. The substantive evidence against
Appellant was the testimony of two previously convicted Airmen.

Airman Basic (AB) David Chappell testified under a grant of immunity that he
used marijuana 20 to 30 times, and AB William Haines used with him on all but one
occasion. He also testified Appellant smoked marijuana with him and AB Haines on at
least 15 occasions and Appellant provided him with marijuana 10 to 15 times. However,
on cross-examination, AB Chappell admitted that, in his prior testimony at AB Haines’
court-martial, he had testified that he only received marijuana from two individuals,
neither of whom were Appellant. AB Chappell also admitted he provided two false
official statements to investigators and had been convicted of making a false official
statement.

AB Haines also testified under a grant of immunity. AB Haines explained
Appellant helped him obtain marijuana on one occasion; Appellant contacted a friend
who he knew sold marijuana and then drove AB Haines and AB Chappell to buy blunt
wraps; and Appellant then drove to his friend’s house where the marijuana purchase
occurred. A second time, AB Haines provided money to Appellant for the purchase of
marijuana, Appellant took the money, and returned later to provide AB Haines with
marijuana. AB Haines testified that he and AB Chappell used marijuana together but he
never saw Appellant use marijuana. AB Haines admitted that he lied to investigators
when they first asked about his and his friends’ use of marijuana. AB Haines was
convicted at his own court-martial for making a false official statement.

Procedural History

On 25 June 2013, the Secretary of Defense appointed a civilian employee of the
Department of the Air Force, who was also a retired Air Force officer and a former active
duty appellate military judge, to serve as an appellate military judge on the Air Force
Court of Criminal Appeals. When Appellant’s case was initially before us, he argued that
the evidence was legally and factually insufficient and his record of trial was not
complete. We disagreed and issued a decision in which we affirmed the findings and

2 ACM S32047(rem)
sentence. United States v. Johnson, ACMS32047 (A.F. Ct. Crim. App. 4 September
2013) (unpub. op.). The civilian employee was a member of the panel that decided
Appellant’s case.

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, 10 U.S.C. § 866, before a properly constituted panel. United States v.
Johnson, __ M.J. __ No. 14-0156/AF (C.A.A.F. 2015) (Daily Journal 30 March 2015).
We then issued an order authorizing Appellant to file supplemental briefing.

As directed by our superior court, we have reviewed Appellant’s case. Our review
includes Appellant’s previous filings and the previous opinion issued by this court, as
well as a supplemental assignment of errors in which Appellant asserts he is entitled to
relief due to excessive post-trial processing delays. Finding no error, we affirm the
findings and the sentence.

Factual and Legal Sufficiency

We review issues of factual and legal sufficiency de novo. United
States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).

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 . . . convinced of the [appellant’s] guilt beyond a reasonable doubt.” United
States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987). 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.

The test for legal sufficiency of the evidence is “whether, considering the evidence
in the light most favorable to the prosecution, a reasonable factfinder could have found
all the essential elements beyond a reasonable doubt.” Turner, 25 M.J. at 324. “[I]n
resolving questions of legal sufficiency, we are bound to draw every reasonable inference
from the evidence of record in favor of the prosecution.” United States v. Barner, 56
M.J. 131, 134 (C.A.A.F. 2001) (citing United States v. Rogers, 54 M.J. 244, 246
(C.A.A.F. 2000)).

3 ACM S32047(rem)
 Appellant argues there was no credible evidence presented at trial to show he
actually distributed marijuana. He argues the only witnesses to testify did so under grants
of immunity, they were previously convicted of making false official statements, and
their testimony conflicted. These two Airmen, however, testified they received marijuana
from Appellant. Additionally, AB Haines was able to provide specific details about the
transaction where he obtained marijuana from Appellant. Having weighed the evidence
in the record of trial, with allowances for not having personally observed the witnesses,
we are personally convinced of Appellant’s guilt beyond a reasonable doubt of a single
distribution of marijuana. Similarly, we find a reasonable factfinder could have found all
the essential elements beyond a reasonable doubt.

Completeness of the Record

During an Article 39(a), UCMJ, 10 U.S.C. § 839(a), session, the military judge
and counsel for each side addressed the written findings instructions drafted by the
military judge. Upon motion of trial counsel and over trial defense counsel’s objection,
the military judge ruled that he would change the word “weaken” to “affect” in the
instruction regarding how the panel could consider the court-martial convictions of AB
Haines and AB Chappell relative to their credibility. The following typographical errors
were also noted in the military judge’s draft instructions: AB Haines’ name was
misspelled as “Hanes,” the date range for the distribution was “341 October,” and on
page five, the third paragraph was missing a period. After noting these corrections, the
military judge reserved Appellate Exhibit V for the instructions that he would provide to
the members.

After counsel for each side presented argument and the military judge provided all
the instructions orally on the record, the military judge told the members that he needed
to make some corrections and as soon as that was completed he would have the
instructions printed and delivered to the members. The members requested a recess
before beginning deliberations. After the recess, the military judge told the members that
he completed the corrections to the written findings instructions and published them as
Appellate Exhibit V to the members. The bailiff then handed the members Appellate
Exhibit V. The Appellate Exhibit V which is included in the record of trial does not
contain any of the corrections that were discussed in the Article 39(a), UCMJ, session.
Appellate Exhibit V also contains a few other typographical errors when compared to the
instructions provided on the record.1 Therefore, it is the determination of this court that

1
Appellate Exhibit V omits the word “specifications” from the initial instructions, while the military judge stated
on the record: “The law presumes the accused to be innocent of the charges and specifications against him.” Also,
the block to indicate whether trial counsel or the bailiff will hand the worksheet to the members, the block to
indicate the panel president’s name, and the block to indicate the number of the appellate exhibit for the findings
worksheet is blank on Appellate Exhibit V.

4 ACM S32047(rem)
Appellate Exhibit V in the record of trial is the draft of the findings instructions and not
the final version that was provided to the members.2

On 14 March 2012, the court reporter certified that the transcript was “an accurate
reflection of the proceeding of the court.” The military judge authenticated the record of
trial on 15 March 2012. On 20 March 2012, a complete copy of the entire record of trial
was presented to trial defense counsel and Appellant.

A complete record of trial is required in a special court-martial when the sentence
includes a bad-conduct discharge. Article 54(c)(1)(B), UCMJ, 10 USC § 854(c)(1)(B);
Rule for Courts-Martial (R.C.M.) 1103(c)(1); see United States v. Santoro, 46 M.J. 344,
346 (C.A.A.F. 1997). R.C.M. 1103(b)(2)(D) requires appellate exhibits to be part of the
record of trial.

A substantial omission from the record of trial renders it incomplete. “Whether
an omission from a record of trial is ‘substantial’ is a question of law which we review de
novo.” United States v. Stoffer, 53 M.J. 26, 27 (C.A.A.F. 2000). A record of trial may be
complete and verbatim if the omissions are insubstantial. United States v. Henry, 53 M.J.
108, 111 (C.A.A.F. 2000) (finding record complete even though four prosecution exhibits
omitted from the record because omission was not substantial as the rest of the record of
trial incorporated the information contained therein); United States v. Barnes, 12 M.J.
614 (N.M.C.M.R. 1981), aff’d on other grounds, 15 M.J. 121 (C.M.A. 1983) (holding
omission from the record of questionnaires completed by members prior to voir dire did
not make record incomplete as omission was insubstantial). Cf. United States v.
McCullah, 11 M.J. 234, 236–37 (C.M.A. 1981) (finding prosecution exhibit that was
prima facie evidence omitted from record was substantial omission and left the record
incomplete); United States v. Abrams, 50 M.J. 361, 364 (C.A.A.F. 1999) (finding failure
to attach personnel records of witness to record, which trial judge reviewed, but did not
release to the defense, was substantial).

We analyze whether an omission is substantial on a case-by-case basis. Abrams,
50 M.J. at 363. The omission of rulings or evidence which affect an appellant’s rights at
trial render appellate review impossible and are substantial omissions. See Id. at 364;
United States v. Gray, 7 M.J. 296, 298 (C.M.A. 1979) (holding omission of sidebar
conference involving a ruling by the trial judge that affected the appellant’s rights was
substantial).

Here, the proper findings instructions were read to the members and captured
verbatim on the record. The members were then provided a copy of those instructions, in

2
In an earlier motion to this court, appellate defense counsel sought to compel the production of the findings
instructions provided to the members. Our denial of that request referred to Appellate Exhibit V as covering what
was being sought by Appellant. We now conclude that Appellate Exhibit V does not contain the findings
instructions actually provided to the members.

5 ACM S32047(rem)
which minor typographical errors had been corrected. The members were properly
instructed on the record and no one raised an objection after the instructions were read,
nor when the instructions were published to the members. The only discrepancies
between the draft and final version of the findings instructions are de minimis and
amount to little more than typographical edits. The only potential substantive change
between the instructions as read and the written instructions contained in the record is
that Appellate Exhibit V contains the word “weaken” vice “affect,” meaning the written
version contains the language requested by the trial defense counsel. The record is clear
that the written findings instructions as provided to the members are the same as
Appellate Exhibit V with the corrections as noted on the record and included in the
verbatim transcript. Including only the draft version of Appellate Exhibit V is error, but
after reviewing the entire record, we find the omission is not substantial.

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 April 2012 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 responsibility
to affirm only those findings and sentence that should be approved.

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). A
presumption of unreasonable delay arises when appellate review is not completed and a
decision is not rendered within 18 months of docketing the case before this court.
Moreno, 63 M.J. at 142. The Moreno standards continue to apply as a case continues
through the appellate process; however, 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. United States v. Mackie, 72 M.J. 135, 135–36
(C.A.A.F. 2013); see also United States v. Roach, 69 M.J. 17, 22 (C.A.A.F. 2010). The
time from the initial docketing on 30 April 2012 until our initial decision on 4 September
2013 did not exceed 18 months. The time between our superior court’s remand which
returned the record of trial to our court for our review and this decision has not exceeded
18 months; therefore, the Moreno presumption of unreasonable delay is not triggered.
See Mackie, 72 M.J. at 136. We reject 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 first decision.3

3
Alternatively, if the United States v. Moreno, 63 M.J. 129, 135 (C.A.A.F. 2006), standards are violated, the 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, 507 U.S.

6 ACM S32047(rem)
 Additionally, Article 66(c), UCMJ, 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. In the present case,
none of the time periods exceeded the Moreno standard. Furthermore, even analyzing the
entire period from the time the case was first docketed until today, we find there was no
bad faith or gross negligence in the post-trial processing. 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
authority under the Appointments Clause4 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 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. The appellant has not articulated any harm.
Furthermore, the impact of any delay was mitigated when we specifically allowed
Appellant to file a supplemental assignment of error. We conclude that sentence relief
under Article 66, UCMJ, is not warranted.

Conclusion

The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of 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

at 530; United States v. Morita, 73 M.J. 548, 567 (A.F. Ct. Crim. App. 2014). Here Appellant concedes he did not
make a demand for speedy appellate processing until his supplemental pleading on 4 May 2015. Appellant has also
not made any showing of prejudice but asks this court to infer it. When there is no showing of prejudice under the
fourth 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 that even if there is error, it is harmless beyond a reasonable doubt.
4
U.S. CONST. art. II, § 2, cl. 2.

7 ACM S32047(rem)