UNITED STATES, Appellee
v.
James L. MACKIE, Airman First Class
U.S. Air Force, Appellant
No. 13-0184
Crim. App. No. S31090
United States Court of Appeals for the Armed Forces
Decided April 19, 2013
PER CURIAM
Counsel
For Appellant: Captain Luke D. Wilson.
For Appellee: Gerald R. Bruce, Esq.
Military Judges: James L. Flanary (court-martial) and Amy M.
Bechtold (DuBay hearing)
This opinion is subject to revision before final publication.
United States v. Mackie, No. 13-0184/AF
PER CURIAM:
We grant review of this case to clarify that even after an
initial appellate court decision, the Moreno standard for speedy
post-trial review is still applicable as the case continues
through the appellate process.1 See United States v. Moreno, 63
M.J. 129, 142 (C.A.A.F. 2006). However, we conclude that the
post-trial delay was harmless beyond a reasonable doubt. United
States v. Allison, 63 M.J. 365, 371 (C.A.A.F. 2006).
Mackie was tried and convicted, pursuant to his pleas, at a
special court-martial by military judge alone on September 2,
2006.2 On September 24, 2007, the United States Air Force Court
of Criminal Appeals (CCA) conducted its initial appellate review
of the case. United States v. Mackie, 65 M.J. 762 (A.F. Ct.
Crim. App. 2007). It determined that the military judge
improperly denied Mackie’s pretrial request for a sanity board
under Rule for Courts-Martial 706 and returned the record of
trial to the Judge Advocate General of the Air Force (JAG) to be
1
We grant review on the following assigned issue: “Whether
Appellant has been denied due process by extensive post-trial
delays.”
2
Mackie was convicted of absence without leave, operating a
motor vehicle while impaired, larceny, and burglary. Articles
86, 111, 121, and 129, Uniform Code of Military Justice (UCMJ),
10 U.S.C. §§ 886, 911, 921, 929 (2006). He was sentenced to a
bad-conduct discharge, confinement for seven months, and
reduction to pay grade E-1. On April 11, 2006, pursuant to a
pretrial agreement, the convening authority reduced the
confinement to six months, but otherwise approved the sentence.
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United States v. Mackie, No. 13-0184/AF
sent to an appropriate convening authority who may order a
sanity board. Id. at 765. Over five years later, on October
24, 2012, the CCA completed its appellate review of this case
and affirmed the findings and sentence. United States v.
Mackie, No. ACM S31090 (f rev), 2012 CCA LEXIS 412, at *15, 2012
WL 5392410, at *6 (A.F. Ct. Crim. App. Oct 24, 2012). In
rejecting Mackie’s argument that he had been denied due process
by the extensive post-trial delay, the CCA interpreted our
holding in United States v. Roach, 69 M.J. 17 (C.A.A.F. 2010),
to mean that the post-trial appellate delay standard set out in
Moreno does not apply when: (1) the delay occurred after an
initial appellate decision and (2) the delay was not malicious.
Id., 2012 WL 5392410, at *5.
In Roach, nineteen months of delay occurred after the
initial appellate decision by the CCA. Roach, 69 M.J. at 22.
This delay facially violated the Moreno presumption. Id. But
during those nineteen months, this court twice became involved
to resolve legitimate legal issues. None of the periods of time
between the actions of the CCA and this court exceeded the
Moreno standard, nor did they implicate concerns of “malicious
delay.” Id. (internal quotation marks omitted). Therefore, we
concluded that the Moreno presumption of unreasonable delay was
not triggered. Id. We did not conclude that Moreno is
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United States v. Mackie, No. 13-0184/AF
inapplicable in the wake of an initial appellate decision unless
there is malicious delay.
Here, the CCA initially returned the case to the JAG to be
sent to a convening authority who was authorized to order a
sanity board. That sanity board was conducted, but the
convening authority took no further action on the case for over
two years. Our decision in Moreno is equally applicable in this
factual situation and the CCA erred in concluding otherwise.
Nevertheless, we are convinced that the delay in this case was
harmless beyond a reasonable doubt. See Allison, 63 M.J. at
371.
Decision
The decision of the United States Air Force Court of
Criminal Appeals, as modified, is affirmed.
4