UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

________________________

No. ACM 39342 (f rev)

________________________

UNITED STATES

Appellee

v.

Jerard SIMMONS

Senior Airman (E-4), U.S. Air Force, Appellant

________________________

Appeal from the United States Air Force Trial Judiciary

Upon further review

Decided 2 October 2020

________________________

Military Judge: Patricia A. Gruen.

Approved sentence: Dishonorable discharge, confinement for 12 years, 

forfeiture of all pay and allowances, and reduction to E-1. Sentence adjudged 14 July 2017 by GCM convened at Joint Base Langley-Eustis, 

Virginia.

For Appellant: Major Mark J. Schwartz, USAF.

For Appellee: Major Peter F. Kellett, USAF; Mary Ellen Payne, Esquire.

Before J. JOHNSON, LEWIS, and KEY, Appellate Military Judges.

Chief Judge J. JOHNSON delivered the opinion of the court, in which 

Senior Judge LEWIS and Judge KEY joined.

________________________

This is an unpublished opinion and, as such, does not serve as 

precedent under AFCCA Rule of Practice and Procedure 30.4.

________________________

J. JOHNSON, Chief Judge:

Appellant’s case is before this court for the second time. A general courtmartial composed of officer members convicted Appellant, contrary to his pleas, 
United States v. Simmons, No. ACM 39342 (f rev)

2

of four specifications of sexual assault of a child, one specification of extortion, 

and one specification of producing child pornography in violation of Articles 

120b, 127, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 

920b, 927, 934.1 The convening authority approved the adjudged sentence of a 

dishonorable discharge, confinement for 12 years, forfeiture of all pay and allowances, and reduction to the grade of E-1.

Upon our initial review, we found Appellant was not entitled to relief with 

regard to the seven issues he raised; however, we found that a new post-trial 

process and action were required due to errors in the staff judge advocate’s 

recommendation (SJAR) to the convening authority. United States v. Simmons, 

No. ACM 39342, 2019 CCA LEXIS 156 (A.F. Ct. Crim. App. 9 Apr. 2019) (unpub. op.). Accordingly, we set aside the convening authority’s action and returned the record of trial to The Judge Advocate General for remand to the 

convening authority. Id. at *57. On remand, after receiving additional clemency submissions from Appellant, the convening authority again approved the 

adjudged sentence. 

Appellant now raises a single issue: whether relief is warranted due to delays in the post-trial processing of his case. We find modest sentence relief is 

warranted, and take appropriate action in our decretal paragraph.

I. BACKGROUND

This court issued its prior opinion in Appellant’s case on 9 April 2019. On 

7 June 2019, the record was returned to the convening authority after the Government declined to seek review of this court’s prior opinion at the United 

States Court of Appeals for the Armed Forces (CAAF) within 60 days. See

C.A.A.F. R. 22(b)(3). A new SJAR was signed 13 June 2019 and served on Appellant’s newly assigned area defense counsel on 24 June 2019. On 1 July 2019, 

Appellant’s counsel requested and was granted an extension to file Appellant’s 

clemency materials. On 26 July 2019, Appellant submitted his clemency petition. The staff judge advocate signed the addendum to the SJAR on 1 August

2019, and the convening authority took action on the same day.

 

1 All references in this opinion to the punitive articles of the Uniform Code of Military 

Justice (UCMJ) are to the Manual for Courts-Martial, United States (2012 ed.). All 

other references to the UCMJ are to the Manual for Courts-Martial, United States

(2016 ed.).
United States v. Simmons, No. ACM 39342 (f rev)

3

According to a sworn declaration from JS,2 the Chief of Appellate Records 

for the Air Force Legal Operations Agency’s Military Justice Division 

(AFLOA/JAJM), the new post-trial documents arrived by mail at Joint Base 

Andrews on 19 August 2019, and were “received by AFLOA/JAJM sometime 

later that week.” However, JS was personally unaware of their arrival until 

she contacted the convening authority’s legal office on 3 October 2019 to inquire about the status of the case. Upon reviewing the material, JS noticed 

that certain documents were missing, and she notified the legal office on 7 October 2019. JS received the missing documents on 8 October 2019 and returned 

the original record of trial to this court on the same day. 

II. DISCUSSION

A. Law

“We review de novo claims that an appellant has been denied the due process right to a speedy post-trial review and appeal.” United States v. Moreno, 

63 M.J. 129, 135 (C.A.A.F. 2006) (citing United States v. Rodriguez, 60 M.J. 

239, 246 (C.A.A.F. 2004); United States v. Cooper, 58 M.J. 54, 58 (C.A.A.F. 

2003)). “[C]onvicted servicemembers have a due process right to timely review 

and appeal of courts-martial convictions.” Id. at 135 (citing Toohey v. United 

States, 60 M.J. 100, 102 (C.A.A.F. 2004); Diaz v. JAG of the Navy, 59 M.J. 34, 

37–38 (C.A.A.F. 2006)). In Moreno, the CAAF established a presumption of facially unreasonable delay when the convening authority does not take action 

within 120 days of sentencing, when the record of trial is not docketed with the 

Court of Criminal Appeals within 30 days of action, or when the Court of Criminal Appeals does not render a decision within 18 months of docketing. Id. at 

142. Where there is such a delay, we examine the four factors set forth in 

Barker v. Wingo, 407 U.S. 514, 530 (1972): “(1) the length of the delay; (2) the 

reasons for the delay; (3) the appellant’s assertion of the right to timely review 

 

2 In United States v. Jessie, the United States Court of Appeals for the Armed Forces 

(CAAF) explained the general rule “that the [Courts of Criminal Appeals] may not 

consider anything outside of the ‘entire record’ when reviewing a sentence under Article 66(c), UCMJ.” 79 M.J. 437, 441 (C.A.A.F. 2020) (quoting United States v. Fagnan, 

30 C.M.R. 192 (C.M.A. 1961)) (additional citation omitted). The post-trial delay at issue 

is evident in the “entire record,” and therefore properly before us for review. See Jessie, 

79 M.J. at 440. However, the CAAF also recognized that “some [of its] precedents have 

allowed the [Courts of Criminal Appeals] to supplement the record when deciding issues that are raised by materials in the record,” specifically with affidavits or hearings 

ordered pursuant to United States v. DuBay, 37 C.M.R. 411 (C.M.A. 1967) (per curiam). 

Jessie, 79 M.J. at 442. In Jessie, the CAAF declined to disturb this line of precedent. 

Id. at 444. Accordingly, we understand Jessie to permit our review of JS’s declaration 

regarding the post-trial delay.
United States v. Simmons, No. ACM 39342 (f rev)

4

and appeal; and (4) prejudice [to the appellant].” Moreno, 63 M.J. at 135 (citing 

United States v. Jones, 61 M.J. 80, 83 (C.A.A.F. 2005); Toohey, 60 M.J. at 102). 

“No single factor is required for finding a due process violation and the absence 

of a given factor will not prevent such a finding.” Id. at 136 (citing Barker, 407 

U.S. at 533). The CAAF identified three types of cognizable prejudice for purposes of an appellant’s due process right to timely post-trial review: (1) oppressive incarceration; (2) “particularized” anxiety and concern “that is distinguishable from the normal anxiety experienced by prisoners awaiting an appellate decision;” and (3) impairment of the appellant’s ability to present a defense at a rehearing. Id. at 138–40 (citations omitted).

In United States v. Tardif, the CAAF recognized that “a Court of Criminal 

Appeals has authority under Article 66(c), [UCMJ, 10 U.S.C. § 866(c)] to grant 

relief for excessive post-trial delay without a showing of ‘actual prejudice’

within the meaning of Article 59(a), [UCMJ, 10 U.S.C. § 859(a)] if it deems 

relief appropriate under the circumstances.” 57 M.J. 219, 224 (C.A.A.F. 2002) 

(citation omitted). “[I]n addition to its determination that no legal error occurred within the meaning of Article 59(a), the [Court of Criminal Appeals] 

was required to determine what findings and sentence ‘should be approved,’ 

based on all of the facts and circumstances reflected in the record, including 

the unexplained and unreasonable post-trial delay.” Id. In United States v. 

Gay, this court identified six factors to consider in determining whether Tardif

relief is appropriate for post-trial delay that is facially unreasonable yet does 

not amount to a due process violation under Moreno and Barker:

1. How long did the delay exceed the standards set forth in 

[Moreno]?

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?
United States v. Simmons, No. ACM 39342 (f rev)

5

74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016). 

“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.” Id. (footnote omitted).

B. Analysis

Focusing on the 68 days that elapsed between the convening authority’s 

new action on 1 August 2019 and the return of the record of trial to this court 

on 8 October 2019, Appellant contends this court should set aside his dishonorable discharge due to unreasonable post-trial delay, either for a violation of 

his due process rights under Moreno or as a matter of sentence appropriateness 

under Tardif. The Government opposes any relief. Under the particular circumstances of this case, we find sentence relief under Tardif is appropriate.

1. Moreno

First, we consider whether Appellant’s due process rights were violated in 

light of Moreno. The 68 days that elapsed between action and docketing exceeded the 30-day Moreno standard for a facially unreasonable delay. Accordingly, we have considered the four Barker factors in light of all of the circumstances of the case. 

a. Length of Delay

We recognize that, for purposes of due process analysis, the length of the 

delay “is to some extent a triggering mechanism” that initiates the Barker

analysis. United States v. Cossio, 64 M.J. 254, 257 (C.A.A.F. 2007) (internal 

quotation marks omitted) (quoting United States v. Smith, 94 F.3d 204, 208–

09 (6th Cir. 1996)). However, the length of the delay is also a factor in the 

analysis in its own right, and logically a longer facially unreasonable delay 

would tend to weigh more heavily than a shorter facially unreasonable delay. 

In this case, the delay exceeded the 30-day Moreno standard by 38 days, a substantial violation. Accordingly, we find the length of delay weighs substantially 

in Appellant’s favor.

b. Reasons for Delay

According to JS’s declaration, the new action and related documents arrived in the mail at Joint Base Andrews on Monday, 19 August 2019, and were 

delivered to AFLOA/JAJM sometime later that week. The only reason given 

for the delay in docketing the record from that point until JS contacted the 

convening authority’s legal office on 3 October 2019 is that JS was “unaware 

that the documents had arrived.” Although we appreciate the declarant’s candor, no further explanation is given for this breakdown in communication, and 

the Government does not attempt to justify the delay. Accordingly, although 
United States v. Simmons, No. ACM 39342 (f rev)

6

there is no indication of intentional delay, the reasons for the delay weigh solidly in Appellant’s favor. 

c. Demand for Speedy Post-Trial Review

Appellant acknowledges his first assertion of his right to timely review 

came in his assignment of error on the instant appeal. However, we note that 

the unreasonable delay occurred late in the process, and that Appellant filed 

his assignment of error (and demand for speedy review) on 3 December 2019, 

within two months of the record being redocketed with this court. Accordingly, 

we weigh this factor in the Government’s favor, but only moderately. 

d. Prejudice

The Government contends Appellant has failed to demonstrate any of the 

forms of cognizable prejudice the CAAF identified in Moreno. See 63 M.J. at 

138–40 (citations omitted). We agree. Notably, Appellant’s brief fails to identify 

how the delay has resulted in either oppressive incarceration, particularized 

anxiety and concern, or impairment to his ability to defend himself at a rehearing. Nor can we discern such prejudice. Where, as in this case, the appellant 

has not prevailed on the substantive grounds of his appeal, there is no oppressive incarceration. Id. at 139. Similarly, where Appellant’s substantive appeal 

fails, his ability to present a defense at a rehearing is not impaired. See id. at 

140. Moreover, Appellant has not indicated particularized anxiety or concern 

qualitatively different from that experienced by other appellants awaiting appellate review. See id.

e. Conclusion with Respect to Due Process

Where there is no qualifying prejudice from the delay, there is no due process violation unless the delay is so egregious as to “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). Considering the Barker factors together and the totality of the circumstances, the 68 days that elapsed 

between action and docketing, although significant and unreasonable, was not 

so egregious as to undermine public confidence in the military justice system.

Accordingly, we do not find a violation of Appellant’s due process right to timely 

post-trial and appellate review.

2. Tardif and Gay

Next we undertake the separate analysis of whether sentence relief is warranted in light of Tardif. This involves consideration of the six factors identified in Gay which are distinct from, although related to, the Barker factors and 

Moreno—keeping in mind that no single factor is dispositive, and other considerations may be appropriate in a particular case. Gay, 74 M.J. at 744.
United States v. Simmons, No. ACM 39342 (f rev)

7

a. Length of Delay in Excess of Moreno Standard

As described above, the delay between action and docketing exceeded the 

30-day Moreno standard by 38 days. This is a significant violation of the standard and weighs in favor of granting relief.

b. Reasons for Delay

As described above, the Government does not attempt to justify the delay, 

which it attributes to “neglect.” We acknowledge there is no evidence of bad 

faith, and that eventually JS inquired about the status of the case—although 

not until more than two months after the convening authority took action, and 

after the post-trial paperwork had apparently been overlooked for more than a 

month. We are also mindful of our superior court’s admonition that “delay in 

the administrative handling and forwarding of the record of trial and related 

documents to an appellate court [ ] is the least defensible of all [post-trial delays] and worthy of the least patience.” United States v. Dunbar, 31 M.J. 70, 

73 (C.M.A. 1990). Accordingly, we find the reasons for the delay also weigh in 

favor of relief.

c. “Some Evidence of Harm”

In Gay, this court explained that evidence of either harm to the appellant 

or “institutional[ ]” harm could weigh in favor of relief. 74 M.J. at 744. This 

factor is not simply a reanalysis of the three very particular forms of prejudice 

the CAAF articulated in Moreno. Indeed, the premise of Tardif relief is that 

sentence relief under Article 66(c), UCMJ, may be appropriate even in the absence of any material prejudice to an appellant’s substantial rights. 57 M.J. at 

224; cf. Gay, 74 M.J. at 744 (“We consider no single factor dispositive . . . .”).

Therefore, applying a more expansive view of harm resulting from the 38-day 

delay, we do perceive some amount of harm to Appellant in this case. 

Appellant vigorously litigated the charges against him at trial, and he vigorously litigated his convictions on appeal at this court. Although we found 

Appellant was not entitled to relief on the seven issues he raised on his initial 

appeal, he has the right to seek further review at the CAAF. See 10 U.S.C. § 

867(a), (b). However, that right was delayed due to substantial errors in the 

original SJAR which required a new post-trial process and convening authority 

action. The additional unreasonable post-trial delay in this case has further 

delayed Appellant’s opportunity to seek review at our superior court. Although 

relief at the CAAF is far from assured, every day that passes while Appellant 

waits under his sentence to confinement incrementally decreases the practical 

value of his right to appeal. We recognize that the post-trial and appellate process inevitably takes time, and that it is very possible Appellant will ultimately

receive no relief from further appeals. However, under the particular circumstances of this case, where admitted government neglect compounded delays 
United States v. Simmons, No. ACM 39342 (f rev)

8

caused by earlier government errors in the post-trial process, we discern “some 

evidence of harm” to Appellant’s rights and interests. Gay, 74 M.J. at 744. Accordingly, we weigh this factor slightly in Appellant’s favor.

d. Lessened Disciplinary Effect/Consistency with Justice and 

Good Order and Discipline

The fourth Gay factor merges two considerations: whether “the delay [has] 

lessened the disciplinary effect of any particular aspect of the sentence, and 

[whether] relief is consistent with the dual goals of justice and good order and 

discipline.” Id. On one hand, we do not perceive how the delay has lessened the 

disciplinary effect of Appellant’s sentence. On 14 July 2017, Appellant was sentenced to be confined for 12 years. We presume Appellant’s disciplinary circumstances have not changed as a result of the delay between action and docketing, as we have no evidence to the contrary. On the other hand, we find that 

under the circumstances of this case, granting modest sentence relief is consistent with both justice and the maintenance of good order and discipline. Accordingly, we find this factor does not favor granting relief or denying relief. 

e. Evidence of Institutional Neglect

Although the Government attributes the unreasonable delay in this case to 

“neglect,” we do not find evidence of “institutional neglect.” Appellant has not 

drawn our attention to similar lapses at AFLOA/JAJM, nor are we familiar 

with such incidents from other cases. The incident in Appellant’s case is concerning, but we note that eventually JS was prompted to inquire about the 

status of the case, so there is some evidence of institutional oversight of the 

process. Accordingly, we find this factor weighs against granting relief. 

f. Meaningful Relief

The last Gay factor considers whether this court can provide meaningful 

relief in this situation, given the passage of time. In light of Appellant’s lengthy 

term of confinement, we find that we can—a modest credit against Appellant’s 

term of confinement can provide a concrete benefit to Appellant that is proportional to the error in this case. Accordingly, we weigh this factor in favor of 

granting relief.

g. Conclusion with Respect to Tardif Relief

Balancing the Gay factors together, in light of the totality of the circumstances in this case, we find modest sentence relief in accordance with Tardif

is warranted.

3. Relief

The remaining question is what form that relief should take. We find Appellant’s suggestion that we disapprove his dishonorable discharge entirely 
United States v. Simmons, No. ACM 39342 (f rev)

9

disproportionate to the circumstances. On the other hand, mitigating the reduction in grade would be largely symbolic in Appellant’s case and may provide 

Appellant little in the way of meaningful relief, while also doing little to inspire 

greater vigilance on the Government’s part. Modifying Appellant’s forfeitures 

also seems ill-suited to the circumstances.

Accordingly, we find a small reduction in Appellant’s term of confinement 

to be appropriate. We considered a day-for-day reduction in Appellant’s sentence for every day the Government exceeded the 30-day Moreno standard;

that is, a 38-day reduction in Appellant’s term of confinement. However, we 

conclude that is more relief than is warranted under the circumstances. We 

are mindful that the post-trial delay in this case has not lessened the severity 

of the offenses for which Appellant was convicted. Moreover, in our prior opinion we determined Appellant is not otherwise entitled to relief from his convictions or sentence, and his prospects for securing relief at the CAAF are uncertain and speculative. We conclude that a ten-day credit against Appellant’s 

term of confinement is appropriate under the circumstances, and we take appropriate action in our decretal paragraph.

III. CONCLUSION

We affirm only so much of the sentence as provides for: a dishonorable discharge; confinement for 11 years, 11 months, and 20 days; forfeiture of all pay 

and allowances; and reduction to the grade of E-1. The approved findings and 

sentence, as modified, are correct in law and fact, and no further 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 approved findings and sentence, as modified, are AFFIRMED.

FOR THE COURT

CAROL K. JOYCE

Clerk of the Court