United States v. Burns

UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Senior Airman DANNY M. BURNS
United States Air Force

ACM 37847 (rem)

23 November 2015

Sentence adjudged 13 November 2010 by GCM convened at MacDill Air
Force Base, Florida. Military Judge: W. Thomas Cumbie and Michael J.
Coco.

Approved Sentence: Bad-conduct discharge, confinement for 6 months,
and reduction to E-1.

Appellate Counsel for Appellant: Major Scott W. Medlyn; Major Nathan
A. White; Major Zaven T. Saroyan; Captain Lauren A. Shure; and Frank J.
Spinner, Esquire (civilian counsel).

Appellate Counsel for the United States: Lieutenant Colonel Jennifer A.
Porter; Lieutenant Colonel Linell A. Letendre; Lieutenant Colonel C.
Taylor Smith; Major Scott C. Jansen; Major Tyson D. Kindness; Major
Brian C. Mason; Major Charles G. Warren; and Gerald R. Bruce, Esquire.

Before

ALLRED, HECKER, and TELLER
Appellate Military Judges

OPINION OF THE COURT
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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent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.

HECKER, Senior Judge:

Appellant was tried by a general court-martial comprised of officer members. He
was charged with wrongful use of cocaine and Ecstasy, aggravated sexual assault, and
forcible sodomy, in violation of Articles 112a, 120, and 125, UCMJ, 10 U.S.C. §§ 912a,
920, 925. Consistent with his pleas, he was found guilty of the two wrongful use
specifications and found not guilty of aggravated sexual assault. Contrary to his plea, he
was found guilty of forcible sodomy. He was sentenced to a bad-conduct discharge,
confinement for 6 months, and reduction to the grade of E-1. The convening authority
approved the sentence as adjudged.

Background

In September 2009, Appellant went out drinking and dancing with three other
male Airmen. They met several women who then accompanied the group to various
locations. By the end of the evening, only one of the women was still with them. Later
that night, she ended up at Appellant’s apartment with the four men. Appellant was
charged with engaging in sexual intercourse with her while she was substantially
incapacitated as well as forcibly sodomizing her. She testified about what she
remembered from the events of the night, as did the three Airmen. Appellant was
convicted of forcible sodomy but acquitted of aggravated sexual assault.

Appellant pled guilty to wrongfully using cocaine and ecstasy in June 2009. In his
providence inquiry, he described becoming intoxicated and being at a party where illegal
drugs were being used, including pills and cocaine. Although he did not recall taking
drugs, he became aware that he was feeling the effects of taking drugs and admitted he
willingly joined the activity. After he awoke the next morning at another house, he found
a bag in his car that contained a white powdery substance that he suspected was cocaine
and realized money was missing from his bank account. The next day, he was selected
for a random urinalysis and tested positive for cocaine and ecstasy.

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, Appellant
raised three issues, contending: (1) the evidence was factually and legally insufficient to
sustain the conviction for forcible sodomy; (2) the judge erred by instructing the jury to
disregard the requirement of sex offender registration when determining a punishment;
and (3) the staff judge advocate’s recommendation erroneously referred to a separate
court-martial when recommending a course of action to the convening authority. We
found the evidence factually insufficient to support Appellant’s conviction for forcible
sodomy in Charge III, set aside the conviction for that offense, and reassessed the
sentence. United States v. Burns, ACM 37847 (A.F. Ct. Crim. App. 24 July 2013)
(unpub. op.). The civilian employee was a member of the panel that decided Appellant’s
case.

2 ACM 37847 (rem)
 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 on 30 March 2015 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. Burns, 74 M.J. 330 (C.A.A.F. 2015).

In light of this ruling by our superior court, we have reviewed Appellant’s case
with a properly constituted panel. Our review includes Appellant’s previous filings and
the previous opinion issued by this court, the briefs filed with our superior court, as well
as a supplemental assignment of errors filed with this court in which Appellant asserts he
is entitled to relief due to excessive post-trial processing delays between the docketing of
his case with this court in 2011 and this decision in 2015.

Factual Sufficiency

We review issues of factual sufficiency de novo. United States v. Beatty, 64 M.J.
456, 459 (C.A.A.F. 2007). 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), quoted in United States v.
Reed, 54 M.J. 37, 41 (C.A.A.F. 2000). 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.”
United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). Our factual sufficiency
determination is limited to a review of the “entire record,” meaning evidence presented at
trial. Reed, 54 M.J. at 43; United States v. Bethea, 46 C.M.R. 223, 225 (C.M.A. 1973).

To convict Appellant of forcible sodomy, the Government must prove two
elements beyond a reasonable doubt: Appellant engaged in unnatural carnal copulation,
and the act was done by force and without consent. Manual for Courts-Martial, United
States (MCM), pt. IV, ¶ 51.b.(1), (4) (2008 ed.). The Government also has the burden of
proving beyond a reasonable doubt that the mistake of fact defense did not exist. For
both sexual offenses, the Government’s theory was that the victim was substantially
incapacitated when Appellant engaged in sexual intercourse and oral sodomy with her.
In contrast, the defense argued she consented to the activity and was not substantially
incapacitated, as well as arguing Appellant had an honest and reasonable mistake of fact

3 ACM 37847 (rem)
as to her consent to the activities. The panel acquitted Appellant of aggravated sexual
assault, but convicted him of engaging in forcible sodomy.

We have reviewed the record of trial and evaluated the arguments by Appellant
and the Government. We have evaluated the entire record of trial and have made
allowances for not having heard and observed the witnesses. Having done so, and having
considered the unique facts of this case on its merits, we are not personally convinced of
Appellant’s guilt of forcible sodomy. Given the totality of the circumstances in this case,
we are not ourselves convinced beyond a reasonable doubt that the Government has
disproven the defense of mistake of fact. Accordingly, we do not find the evidence to be
factually sufficient to find Appellant guilty of forcible sodomy.1

It should go without saying that a court-martial is a most serious matter, and the
requirement for proof beyond a reasonable doubt plays a vital role in the legitimacy of
the military justice system. A “society that values the good name and freedom of every
individual should not condemn a man for commission of a crime when there is reasonable
doubt about his guilt.” In re Winship, 397 U.S. 358, 363–64 (1970). In the military
justice system, where servicemembers accused at court-martial are denied some rights
provided to other citizens, our unique factfinding authority is a vital safeguard designed
to ensure that every conviction is supported by proof beyond a reasonable doubt. See Ex
parte Quirin, 317 U.S. 1, 40–41 (1942) (stating that there is no constitutional right to a
trial by jury in courts-martial); O’Callahan v. Parker, 395 U.S. 258, 265 (1969)
(recognizing differences between courts-martial and civilian criminal proceedings and
observing that “[a] court-martial is not yet an independent instrument of justice but
remains to a significant degree a specialized part of the overall mechanism by which
military discipline is preserved”), overruled on other grounds by Solorio v. United States,
483, U.S. 435, 440–41 (1987). This authority “provide[s] a source of structural integrity
to ensure the protection of service members’ rights within a system of military discipline
and justice where commanders themselves retain awesome and plenary authority.”
United States v. Jenkins, 60 M.J. 27, 29 (C.A.A.F. 2004). Most cases reviewed by this
court are deemed factually sufficient. However, in this instance, we simply are not
personally convinced that Appellant is guilty of the forcible sodomy offense.
Accordingly, we dismiss Charge III and it specification.2

Addendum to the Staff Judge Advocate’s Recommendation

The last paragraph of the addendum to the staff judge advocate’s recommendation
(SJAR) was erroneous in that it contained facts and recommendations that relate to
another Airman as opposed to Appellant. That paragraph states the convening authority
had previously approved “[Senior Airman] Jackson’s” request for deferment and waiver
1
The panel was not instructed on consensual sodomy.
2
Having dismissed Charge III and its specification on the basis of factual insufficiency, we do not address legal
sufficiency.

4 ACM 37847 (rem)
of forfeitures and recommends the convening authority approve an adjudged sentence
that does not correspond to that adjudged in Appellant’s case. The remainder of the
addendum, and all of the SJAR, relate to Appellant and are accurate.

The question of whether an error in an SJAR or addendum requires post-trial relief
is one that we review de novo. United States v. Scalo, 60 M.J. 435, 436 (C.A.A.F. 2005).
Generally, errors in these documents are reviewed for plain error if the defense does not
make a timely objection to the error. Id.; Rule for Courts-Martial (R.C.M.) 1106(f)(6).
Here, however, there is no evidence in the record that the addendum was served on
Appellant or his defense counsel, so a plain error analysis is not appropriate. See R.C.M.
1106(f)(7). Instead, we consider whether Appellant was prejudiced by this error,
including considering whether the convening authority plausibly might have taken more
favorable action if he had been provided accurate information. United States v. Alis, 47
M.J. 817, 827 (A.F. Ct. Crim. App. 1998).

In making this determination, 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)).
“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.’” United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000) (quoting United States
v. Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998)).

We find the error in the addendum had no effect on the approved sentence in
Appellant’s case, and Appellant has made no colorable showing of possible prejudice.
When considered in context with the other post-trial documents provided to the
convening authority, this erroneous paragraph did not mislead him or result in prejudice
to Appellant. The convening authority signed the action attached to the addendum,
approving the sentence adjudged against Appellant (and not the slightly greater sentence
adjudged against the other Airman). It is clear from the SJAR and the remainder of the
addendum that the staff judge advocate would have continued with his initial
recommendation that the adjudged sentence be approved by the convening authority and
the convening authority would not have taken more favorable action if the addendum had
provided accurate information.

Instruction on Sex-Offender Registration

In his unsworn statement, Appellant referenced the requirement that he register as
a sex offender based on his forcible sodomy conviction. Over defense objection, the
military judge instructed the panel that registration is a collateral consequence of
Appellant’s action and that they were not to rely on potential registration when
determining an appropriate sentence for Appellant. Appellant now contends the military
judge abused his discretion in giving this instruction.

5 ACM 37847 (rem)
 In United States v. Talkington, 73 M.J. 212, 213 (C.A.A.F. 2014), our superior
court held that sex offender registration is a collateral consequence of the conviction
alone and has no causal relationship to the sentence imposed for the offense. Thus, while
an accused is permitted to raise this collateral consequence in his unsworn statement, “the
military judge may instruct the members essentially to disregard the collateral
consequence” as they deliberate on an appropriate sentence for an accused. Id.; see also
United States v. Barrier, 61 M.J. 482, 485–86 (C.A.A.F. 2005); United States v. Tschip,
58 M.J. 275, 277 (C.A.A.F. 2003). The military judge’s instruction to the panel was in
accordance with the holding in Talkington and not an abuse of discretion.

Post-trial Delay

Appellant argues, citing United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006),
that the unreasonable post-trial delay from the date the case was first docketed with this
court in March 2011 until this opinion warrants relief. Appellant further cites 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.

A military member has a right under Article 66, UCMJ, to timely appellate review
of his findings and sentence by a service court. Diaz v. Judge Advocate General of the
Navy, 59 M.J. 34, 37 (C.A.A.F. 2003). He also has a separate and distinct constitutional
right to a timely review guaranteed to him under the Due Process Clause.3 Id. at 38;
United States v. Jones, 61 M.J. 80, 83 (C.A.A.F. 2005); Toohey v. United States, 60 M.J.
100, 101 (C.A.A.F. 2004).

When we examine claims of untimely appellate review under the Due Process
Clause of the Constitution as a matter of law, that review involves the four-factor analysis
elucidated in Barker v. Wingo, 407 U.S. 514, 530 (1972). United States v. Simon, 64 M.J.
205, 207 (C.A.A.F. 2006). 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. Our analysis balances these four factors to determine
whether a due process violation occurred, and no single Barker factor is required before
that conclusion can be reached. Moreno, 63 M.J. at 136.

We need not engage in this full due process analysis unless the appellate delay is
facially unreasonable. Id. at 136; United States v. Roach, 69 M.J. 17, 22 (C.A.A.F.
2010). A case-by-case analysis is typically conducted to determine if a particular delay is
facially unreasonable. Id. However, our superior court established a presumption of
unreasonable delay if a decision is not rendered by a service court within 18 months of

3
U.S. CONST. amend V.

6 ACM 37847 (rem)
docketing. Id. at 142. The Moreno standards continue to apply as a case continues
through the appellate process. See United States v. Mackie, 72 M.J. 135, 135–36
(C.A.A.F. 2013).

This case was originally docketed with this court on 4 March 2011, and our initial
decision was issued on 24 July 2013, 873 days (2 years, 4 months, 20 days) after
docketing. In our July 2013 opinion, we sua sponte noted that our review of Appellant’s
case was not completed within 18 months of docketing and thus was presumptively
unreasonable. See Moreno, 63 M.J. at 142. We also found that, after considering the
totality of the circumstances and the entire record, the appellate delay was harmless
beyond a reasonable doubt.

As part of his petition to our superior court in November 2013, Appellant
submitted a declaration detailing, inter alia, difficulties he has encountered in his post-
trial employment and living arrangements due to his status as a registered sex offender.
After our original decision was reversed and the record returned to us, Appellant filed
this supplemental assignment of error with this court. He essentially argues that, because
our initial decision was not issued by a properly constituted panel, we should consider the
time from initial docketing in March 2011 until this opinion as uninterrupted for analysis
under those cases.

The time between the docketing of this case in March 2011 and the issuance of our
initial decision in July 2013 is presumptively unreasonable as it exceeded Moreno’s 18-
month standard and triggers an analysis of the remaining Barker factors.

In contrast, the time between our superior court’s March 2015 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. See Mackie,
72 M.J. at 136. The reason for the delay between our first decision in July 2013 and our
opinion today was to allow this court and our superior court to fully consider a
constitutional issue of first impression: 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. 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. Due to the
unusual circumstances of this case, however, we do take into account the overall length
of this appeal when conducting our analysis of the post-trial delay in this case.

4
U.S. CONST. art. II, § 2, cl. 2.

7 ACM 37847 (rem)
1. Reasons for the delay

When considering the reasons for the delay, we look at the Government’s
responsibility for any delay, as well as any legitimate delays attributable to Appellant.
Moreno, 63 M.J. at 136.

After the case was docketed on 4 March 2011, Appellant’s military appellate
defense counsel submitted three requests for enlargements of time, stating his heavy
workload had prevented him from addressing Appellant’s case. Following these
enlargements, Appellant’s brief was due on 30 November 2011. In the next (fourth)
request for enlargement, the military counsel indicated Appellant had retained civilian
counsel. That civilian counsel subsequently submitted four additional requests for
enlargement, providing information on how his caseload was affecting his ability to file
Appellant’s brief. As the Government acknowledges, appellate delay resulting from
military appellate defense counsel’s requests for enlargement due to excessive workload
are not attributed to individual appellants when analyzing this factor. See United States v.
Merritt, 72 M.J. 483, 491 (C.A.A.F. 2013); Moreno, 63 M.J. at 137 (noting the
Government is responsible for providing adequate staffing within the appellate defense
divisions to provide competent and timely representation); Diaz, 59 M.J. at 38. We do,
however, attribute the delays requested by civilian defense counsel to Appellant. Merritt,
72 M.J. at 489.

After Appellant’s brief was filed on 27 April 2012, the Government sought and
received multiple enlargements of time due to the workload of counsel and changes to
assigned counsel. The Government brief was ultimately filed on 2 August 2012. This
delay is attributable to the Government. See United v. Harvey, 64 M.J. 13, 23 (C.A.A.F.
2006) (holding that government counsel’s caseload and volume of work in appellate
government division do not constitute legitimate reasons for delays); United States v.
Arriaga, 70 M.J. 51, 57 (C.A.A.F. 2011) (holding that “personnel and administrative
issues . . . are not legitimate reasons justifying otherwise unreasonable post-trial delay”).

The final period of delay occurred before this court issued its initial decision 351
days (11 months, 17 days) after the filing of Appellant’s reply brief on 7 August 2012.
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.” Moreno, 63 M.J. at 137. In Moreno, our superior court held that “a period of
slightly over six months is not an unreasonable time for review by the Court of Criminal
Appeals.” Id. at 137–38. We are unsure whether this same reasoning applies to a period
of 351 days (almost 12 months) for review of this record of trial. See Merritt, 72 M.J. at
490 (noting a 351-day delay for a court of criminal appeals to decide a case after final
briefing is “troubling”). We recognize that “the timely management and disposition of
cases docketed” before this court is our responsibility. Moreno, 63 M.J. at 137.

8 ACM 37847 (rem)
 In sum, this factor weighs heavily in favor of Appellant.

2. Assertion of the right to a timely review and appeal

Analyzing this factor requires us to examine Appellant’s role in this delay. He did
not object to any delay or assert his right to timely review and appeal prior to filing his
petition with our superior court on 15 November 2013. He has now raised that issue with
this court. We find this factor weighs against Appellant but only slightly. Moreno, 63
M.J. at 138 (“[T]he weight against [the appellant] is slight given that the primary
responsibility for speedy processing rests with the Government . . . .”).

3. Prejudice

“In the case of appellate delay, prejudice should be assessed in light of the
interests of those convicted of crimes to an appeal of their convictions unencumbered by
excessive delay.” Moreno, 63 M.J. at 138–39 (quoting Rheuark v. Shaw, 628 F.2d. 297,
303 n.8 (5th Cir. 1980). The interests protected by prompt appeals include prevention of
oppressive incarceration pending appeal and the minimization of anxiety and concern
while an appellant is awaiting the outcome of his appeals.5 Id.

The concept of oppressive incarceration pending appeal is related to the success or
failure of an accused’s substantive appeal. Id. at 139. If an appellant has been
incarcerated during the appeal period and his substantive appeal is meritorious, then the
incarceration may have been oppressive. Id. Here, Appellant prevailed on his
substantive appellate issue, but we find his incarceration was not oppressive. He was
released from confinement shortly after his case was docketed with this court. This was
before the appellate delays occurred and well before a timely appeal could have been
completed. Therefore, the appellate delay here did not result in Appellant enduring
incarceration awaiting this favorable decision on his appeal. Compare Harvey, 64 M.J.
at 24 (holding that, despite a successful appeal, it was not oppressive incarceration when
confinement was completed before convening authority action), with United States v.
Dearing, 63 M.J. 478, 487 (C.A.A.F. 2006) (holding that it was oppressive incarceration
when an appellant was still serving a 25-year sentence based on a conviction that was set
aside).

5
A third interest is the limitation of the possibility that a convicted person’s grounds for appeal, and his defenses in
case of reversal and retrial, might be impaired by the delay. United States v. Moreno, 63 M.J. 129, 139 C.A.A.F.
2006). This factor is related to whether a rehearing has been authorized following an appellant’s successful appeal.
If an appellant has a meritorious appeal and a rehearing is authorized, “the appellate delay encountered by the
appellant may have a negative impact on his ability to prepare and present his defense at the rehearing.” Id. at 140.
“In order to prevail on this factor an appellant must be able to specifically identify how he would be prejudiced at
rehearing due to delay. Mere speculation is not enough.” Id. No such prejudice is articulated by Appellant.
Furthermore, this court has not authorized a rehearing.

9 ACM 37847 (rem)
 The interest in minimizing anxiety and concern “involves constitutionally
cognizable anxiety that arises from excessive delay.” Moreno, 63 M.J. at 139. In the
military system, an appellant must show “particularized anxiety or concern that is
distinguishable from the normal anxiety or concern that is experienced by prisoners
awaiting an appellate decision.” Id. at 140. Such anxiety or concern is related to the
timeliness of the appeal and is not dependent on whether the substantive appeal is
ultimately successful. Id. Instead, there must be a nexus between the anxiety or concern
and the processing of the appeal, and the relief should be fashioned to compensate him
for the particular harm. Id.

Sex offender registration requirements upon release from confinement can
constitute the necessary “particularized anxiety” to constitute prejudice to an appellant
where the post-trial delay was excessive and an appellant’s offender-qualifying
conviction was ultimately set aside during the appeal. Moreno, 63 M.J. at 140; see also
United States v. Preciado, 67 M.J. 559, 563 (A.F. Ct. Crim. App. 2008) (finding
prejudice where the appellant “remained registered as a sex offender in his home state far
longer than he would have had his case been properly processed” during the post-trial
stage of his case). But see United States v. Lee, 73 M.J. 166, 171 (C.A.A.F. 2014)
(finding no particularized prejudice where the appellant’s name had been removed from
the sex-offender registry before the period of post-trial delay occurred); Merritt, 72 M.J.
at 491 (finding sex-offender registration did not constitute the required “particularized
anxiety” where the accused would still have to register as a sex offender regardless of
appellate delay).

Here, Appellant has been subject to sex-offender registration since his release
from confinement in March 2011. Given our decision that the evidence presented at trial
was insufficient to support Appellant’s forcible sodomy conviction, he will no longer be
subjected to such registration once this decision is final.6 Considering that Appellant has
therefore experienced particularized anxiety or concern awaiting the outcome of his
appeal, we conclude this prejudice factor weighs in favor of Appellant.

4. Balancing the Barker/Moreno factors

The unreasonable length of the delay, the lack of legitimate reasons for a
substantial portion of the delay, and the specific prejudice suffered by Appellant as a
result of particularized anxiety and concern all weigh heavily in favor of Appellant. His
failure to initially assert his right to timely post-trial review weighs against him, but only
slightly. Therefore, our balancing of the four Barker/Moreno factors leads us to conclude
that Appellant was deprived of his due process right to speedy review and appeal.

6
We note that Appellant has experienced this particularized anxiety and concern throughout the pendency of the
appellate process, to include the 20 months during which our superior court was considering the Appointments
Clause issue and the 8 months this case has been before us following remand.

10 ACM 37847 (rem)
 Having found a due process violation after balancing these factors, we then review
the record de novo to conduct a second prejudice analysis to determine whether, under
the totality of the circumstances, the error is harmless beyond a reasonable doubt. United
States v. Bush, 68 M.J. 96, 103 (C.A.A.F. 2009). The Government has the heavy burden
of demonstrating beyond a reasonable doubt that no such prejudicial impact exists. See
id. at 102; Toohey, 63 M.J. at 363; Harvey, 64 M.J. at 25. Where we have found an
appellant has suffered prejudice under the Barker analysis, the Government will have a
difficult time meeting this burden. Bush, 68 M.J. at 104; Dearing, 63 M.J. at 488
(finding the government failed to meet its burden because, in part, prejudice was found
under the Barker analysis).

Because of the appellate delay, Appellant has been subject to sex-offender
registration longer than otherwise would have been necessary if he had received his right
to timely appellate review. The delay, therefore, has caused a prejudicial impact.7 See
Bush, 68 M.J. at 104. Under the totality of the circumstances, we find the Government
has failed to meet its burden of demonstrating beyond a reasonable doubt that the delay
generated no prejudicial impact. See United States v. Szymczyk, 64 M.J. 179 (C.A.A.F
2006) (mem.) (finding the denial of due process was not harmless beyond a reasonable
doubt where the delay in issuing an appellate decision that set aside Appellant’s sex-
offender registration eligible offenses “subjected [the appellant] to sex-offender
registration requirements longer than otherwise would have been necessary” and where
he ultimately hired civilian counsel to represent him before the service court).

Remedy for Errors

As discussed above, this court has found the evidence factually insufficient to
sustain Appellant’s conviction of forcible sodomy and has also found Appellant was
prejudiced when he was deprived of his constitutional right to the timely processing of
his case. Our next task is to determine what the remedy should be for these two errors.

1. Factual Insufficiency

Because one of Appellant’s convictions has been set aside, we must determine
whether we can reassess the sentence, or whether we must order a rehearing. This court
has “broad discretion” in deciding to reassess a sentence to cure error and in arriving at
the reassessed sentence. United States v. Winckelmann, 73 M.J. 11, 12 (C.A.A.F. 2013).
To reassess the sentence, we must be able to reliably conclude that, in the absence of

7
Appellant’s declaration contains various claims about his loss of employment and his difficulty in gaining
employment due to his status as a registered sex offender. In balancing the Barker/Moreno factors, we recognize
and follow our superior court’s holding that an appellant’s “unsupported allegations of employment prejudice have
no impact under [this] totality of the circumstances review” unless he supports that claim with independent evidence
or provides a valid reason for failing to do so. United States v. Bush, 68 M.J. 96, 100–01 (C.A.A.F. 2009); see also
United States v. Allende, 66 M.J. 142, 145 (C.A.A.F. 2008).

11 ACM 37847 (rem)
error, the sentence “would have been at least of a certain magnitude,” and the reassessed
sentence must be “no greater than that which would have been imposed if the prejudicial
error had not been committed.” United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986).
We must be able to determine this to a “degree of certainty.” United States v. Eversole,
53 M.J. 132, 134 (C.A.A.F. 2000); see also United States v. Taylor, 51 M.J. 390, 391
(C.A.A.F. 1999) (holding we must be able to reach this conclusion “with confidence”).
“The standard for reassessment is not what would be imposed at a rehearing but what
would have been imposed at the original trial absent the error.” United States v. Taylor,
47 M.J. 322, 325 (C.A.A.F. 1997); see also United States v. Davis, 48 M.J. 494, 495
(C.A.A.F. 1998) (holding no higher sentence than that which would have been imposed
by the trial forum may be affirmed). A reassessed sentence “must be purged of
prejudicial error and also must be ‘appropriate’ for the offense[s] involved” based on our
sentence approval obligation under Article 66(c), UCMJ. Sales, 22 M.J. at 308.

In determining whether to reassess a sentence or order a rehearing, we consider the
totality of the circumstances, including certain illustrative, but not dispositive, factors:
(1) dramatic changes in the penalty landscape and exposure, (2) the forum, (3) whether
the remaining offenses capture the gravamen of the criminal conduct included within the
original offenses, (4) whether significant or aggravating circumstances remain admissible
and relevant, and (5) whether the remaining offenses are the type with which we as
appellate judges have the experience and familiarity to reliably determine what sentence
would have been imposed at trial by the sentencing authority. Winckelmann, 73 M.J. at
15–16.

There is no longer a finding that Appellant sexually assaulted a fellow Airman and
there is no longer a maximum sentence that includes confinement for life without
eligibility for parole. Instead, the panel would have been sentencing Appellant for two
controlled substance specifications stemming from his use of the drugs on one night
when he was intoxicated. These offenses carry a maximum of 10 years of confinement.
Thus, the sentencing landscape has changed significantly as a result of our decision,
which generally gravitates away from our ability to reassess the sentence, as does the fact
that Appellant was sentenced by a panel. United States v. Riley, 58 M.J. 305, 312
(C.A.A.F. 2003); Winckelman, 73 M.J. at 14. The remaining drug offenses do not relate
to or capture the gravamen of the set aside charge, and no significant or aggravating
circumstances regarding the sexual incident remain admissible. These offenses, however,
are of the type that we have experience and familiarity with as appellate judges.
Considering the totality of the circumstances of this case, including the factors elucidated
in Winckelmann, we are confident we can reassess the sentence.

Based on Appellant’s convictions for forcible sodomy and wrongful use of
cocaine and ecstasy, the panel sentenced Appellant to a bad-conduct discharge,
confinement for 6 months, and reduction to E-1. In this case, the totality of the
circumstances leads us to conclude that we can reassess the sentence to affirm only so

12 ACM 37847 (rem)
much as provides for confinement for three months and reduction to E-1. We can
confidently and reliably determine that, absent the error, the sentence adjudged by the
members would have been at least that magnitude.

2. Appellate Delay

Once a denial of speedy appeal has been found after the balancing of the four
Barker factors, reviewing authorities “should ‘tailor an appropriate remedy, if any is
warranted, to the circumstances of the case.’” Moreno, 63 M.J. at 143 (quoting United
States v. Jones, 61 M.J. 80, 86 (C.A.A.F. 2005)). In Moreno, our superior court provided
a nonexclusive list of relief available for post-trial delays which includes, in pertinent
part, (1) setting aside all or portions of an approved sentence, and (2) dismissal of the
charges and specifications with or without prejudice. Moreno, 63 M.J. at 143.
Fashioning such a remedy for excessive post-trial delay is within our broad discretion
under Article 66(c), UCMJ. Tardif, 57 M.J. at 224; United States v. Pflueger, 65 M.J.
127, 128 (C.A.A.F. 2007).

Sex-offender registration automatically subjected Appellant “to unique
ramifications, including . . . residency-reporting requirements and place of domicile
restrictions.” United States v. Riley, 72 M.J. 115, 120–21 (C.A.A.F. 2013). Our superior
court has held that sentence relief is warranted when post-trial delay caused an appellant
to live as a registered sex offender longer than he would have if he had received his right
to timely appellate review. See Szymczyk, 64 M.J. 179 (setting aside an appellant’s
sentence to three months of confinement and affirming only his dismissal where service
court decision setting aside the offense requiring registration was issued more than six
years after his court-martial). In contrast, this court found no additional sentence relief
was appropriate or warranted where the appellant was subjected to sex-offender
registration for 18 months longer than he would have been if the convening authority had
modified the findings in a timely manner when the case was remanded. Preciado, 67
M.J. at 564. In that case, this court noted the appellant remained convicted of a serious
sexual, though non-registration eligible, offense. Id.

Here, Appellant has been subject to sex-offender registration requirements since
being released from confinement in April 2011. Unlike the accused in Preciado, he is no
longer convicted of a serious sexual offense. Under the totality of the circumstances of
this case, which includes the action we have already taken on Appellant’s sentence based
on our disapproval of the forcible sodomy charge, we conclude that additional sentence
relief is warranted.8 We, therefore, approve only so much of the sentence as provides for
confinement for three months and reduction to E-3.

8
We find dismissal of the remaining charges with or without prejudice would be an inappropriate and unreasonable
windfall for Appellant. See Moreno, 63 M.J. at 143 (“Dismissal would be a consideration if the delay either
impaired [the appellant’s] ability to defend against the charge at a rehearing or resulted in some other evidentiary
prejudice.”).

13 ACM 37847 (rem)
 In our view, this constitutes reasonable and meaningful sentence relief for the
excessive post-trial delay. See United States v. Rodriguez-Rivera, 63 M.J. 372, 386
(C.A.A.F. 2006). Appellant’s adjudged reduction to E-1 took effect 14 days after the
sentence was adjudged. See Article 57(a)(1)(A), UCMJ, 10 U.S.C. § 857(a)(1)(A). Our
action in his case has now restored the lost pay grades up to E-3.9

Conclusion

Charge III and its specification are dismissed. The findings of guilty as to Charge
I and its two specifications are affirmed. As so modified, the findings are correct in law
and fact.

We affirm only so much of the sentence as provides for 3 months confinement and
reduction to the grade of E-3. All rights, privileges, and property of which Appellant has
been deprived by virtue of that portion of the findings and sentence set aside by this
decision are ordered restored. See Articles 58b(c) and 75(a), UCMJ, 10 U.S.C. §§
858b(c), 875(a).

The findings, as modified, and the sentence, as reassessed and modified, 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, 10 U.S.C. §§ 859(a), 866(c).
Accordingly, the findings, as modified, and the sentence, as reassessed and modified, are
AFFIRMED.

FOR THE COURT

LEAH M. CALAHAN
Clerk of the Court

9
Because he was also sentenced to a bad-conduct discharge and confinement for six months, Appellant forfeited all
his pay and allowances during his period in confinement. See Article 58b, UCMJ, 10 U.S.C. § 858b. Because we
have disapproved the bad-conduct discharge as part of our sentence reassessment, Appellant is no longer subject to
that forfeiture. Id.

14 ACM 37847 (rem)