UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

________________________

No. ACM 39125

________________________

UNITED STATES

Appellee

v.

John D. GONZALEZ

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

________________________

Appeal from the United States Air Force Trial Judiciary

Decided 22 March 2018

________________________

Military Judge: Marvin W. Tubbs II.

Approved sentence: Bad-conduct discharge, confinement for 6 years, 

and reduction to E-1. Sentence adjudged 21 April 2016 by GCM convened at Scott Air Force Base, Illinois. 

For Appellant: Major Mark C. Bruegger, USAF; Captain Patrick A. 

Clary, USAF.

For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major Mary 

Ellen Payne, USAF; Major J. Ronald Steelman III, USAF; Gerald R. 

Bruce, Esquire.

Before JOHNSON, MINK, and DENNIS, Appellate Military Judges.

Senior Judge JOHNSON delivered the opinion of the court, in which

Judge MINK and Judge DENNIS joined.

________________________

This is an unpublished opinion and, as such, does not serve as 

precedent under AFCCA Rule of Practice and Procedure 18.4.

________________________

JOHNSON, Senior Judge:

A general court-martial composed of officer and enlisted members convicted Appellant, contrary to his pleas, of one specification of sexual assault 
United States v. Gonzalez, No. ACM 39125

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by causing bodily harm in violation of Article 120, Uniform Code of Military 

Justice (UCMJ), 10 U.S.C. § 920. The court-martial sentenced Appellant to a 

bad-conduct discharge, confinement for six years, total forfeiture of pay and 

allowances, and reduction to the grade of E-1. The convening authority disapproved the adjudged forfeitures, approved the remainder of the sentence, 

and waived mandatory forfeitures for the benefit of Appellant’s dependent 

child.

Appellant raises nine issues for our consideration on appeal: (1) Whether 

the military judge erred by admitting “consciousness of guilt” statements by 

Appellant pursuant to Military Rule of Evidence (Mil. R. Evid.) 404(b); (2) 

Whether the military judge erred by admitting Appellant’s recorded statement to a civilian police detective who failed to administer a rights advisement; (3) Whether Appellant’s conviction is factually sufficient; (4) Whether 

trial defense counsel provided ineffective assistance of counsel (IAC) during 

the trial; (5) Whether Appellant is entitled to sentence relief due to the Government’s failure to provide him adequate medical care during his post-trial 

confinement; (6) Whether the military judge erred by permitting a Government witness to testify as an expert in “medical legal examinations”; (7) 

Whether the Government violated its discovery obligations by failing to disclose defects in the chain of custody of certain evidence; (8) Whether the military judge erred by accepting trial counsel’s race-neutral explanation for exercising a peremptory challenge against a member of the court-martial panel; 

and (9) Whether the military judge erred by failing to appropriately address a 

question from one of the panel members during deliberations on findings.1 In 

addition, we address a separate question of IAC during the post-trial process 

not initially raised by Appellant, and a facially unreasonable delay in the appellate review of Appellant’s case. We find no error with respect to the issues 

initially raised by Appellant2 and no relief warranted for the delay in appel-

 

1 Appellant personally raises issues (2) through (9) pursuant to United States v. 

Grostefon, 12 M.J. 431 (C.M.A. 1982).

2 We have carefully considered all of the issues raised by Appellant, but not all of 

them require discussion in the opinion. With respect to issue (6), the witness in question was highly experienced in conducting “medical legal examinations” and the military judge did not abuse his discretion in recognizing her as an expert with regard to 

performing such exams. With respect to issue (7), the Defense did not object or request relief at trial and we find no plain error by the military judge. With respect to 

issue (8), trial counsel clearly explained the race-neutral basis for the peremptory 

challenge—an arguably misogynistic Facebook post by the court member in question—and the military judge did not abuse his discretion by accepting that explanation. With respect to issue (9), counsel for both parties agreed to the military judge’s 

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late review; however, we find that IAC unaddressed by the staff judge advocate (SJA) during the post-trial process requires a new post-trial process and 

action by the convening authority.

I. BACKGROUND

Appellant was a tactical air controller stationed at Fort Campbell, Kentucky, but who lived in Nashville, Tennessee, with his wife and young son. 

Appellant and his family were good friends with EW, a female civilian who 

lived next door with her boyfriend at the time, ME, and another male housemate, JS. The two households developed a close relationship after Appellant’s 

family moved into their house in 2012. They would frequently socialize, and 

EW had a key to Appellant’s house because she would often babysit Appellant’s son as well as pick him up from daycare.

In early April 2013, EW’s then-boyfriend ME was out of town for workrelated travel. Appellant’s wife and son were also on a trip outside the state. 

Before she left, Appellant’s wife asked EW to “watch over” Appellant while 

she was gone to “make sure that he’d be okay.” Appellant had suffered a noncombat back injury during a deployment to Afghanistan from which he returned earlier in 2013, although the effects of the injury had not yet fully appeared.

EW returned home from work on the evening of 4 April 2013. Although 

she felt “exhausted” and “drained,” she invited Appellant to go out and “have 

a drink.” Appellant accepted on the condition that EW drive because Appellant had already been drinking alcohol. EW also invited a female friend, but 

that friend did not join them. EW and Appellant visited two bars. EW drank 

two mixed drinks at the first; at the second, Appellant ordered a beer for EW

but she did not drink it. They talked about EW’s frustrations with her work 

and issues in Appellant’s marriage. The second bar had live music and EW 

and Appellant danced “side-by-side” facing the band.

EW drove Appellant back to his house. Appellant said he wanted to continue drinking and went into his house to get beer. EW went into her house 

and changed out of her work uniform and into pajama pants and a t-shirt. 

Appellant came to EW’s house and they continued talking in EW’s kitchen. 

Appellant continued to drink beer; EW had “a few sips.” There was no kissing 

 

decision to re-read a portion of the instructions to answer the question, and the president of the court affirmed that this answered the member’s question. We find these

issues do not require further discussion or warrant relief. See United States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987).
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or other flirtatious behavior. EW felt cold, so she moved to sit over an air vent 

on the floor of the kitchen. In that position, she fell asleep.

EW awoke in her bed. Her pajama pants were pulled “just below [her] 

bottom.” Appellant was anally penetrating her. EW felt “confused” and “terrified” and was “afraid of being hurt.” She later testified, “I laid there for a minute and then I said, ‘[ME], not right now,’ because I thought it was [ME] in 

my bed. And then shortly after that it stopped. I heard a belt buckle and 

there was movement. Then he got out of my bed.” Appellant departed the 

room and the house without saying anything.

EW waited “a little bit” before sending Appellant a text message to let 

him know that she knew he was in her house. The message read, “How long 

was I asleep? I woke up from what I thought was a dream.. [sic] I saw [ME] 

nd [sic] all and he’s not here and you were..[sic]” Appellant did not respond 

right away, but later in the morning he replied, “I putt [sic] you in your bed 

and left you were drunk, I did not lock the door since I do not have a key so 

that’s my bad[.]”

After she sent the text message, EW called ME. ME later testified EW 

was “hysterical” and told him she had been raped. ME called their housemate, JS, who was also not home at the time. JS in turn called the police. The 

police and JS arrived at EW’s house at approximately the same time. The police disarmed EW, who had armed herself with a handgun because she was 

afraid Appellant would return. JS’s girlfriend, MM, also arrived at the house 

and described seeing EW on the kitchen floor “sobbing uncontrollably” and 

apparently “traumatized.” MM heard EW say, inter alia, that she was afraid 

Appellant would “come back and hurt [EW] if he knew [EW] called the police.” 

Eventually the police transported EW to a hospital where she consented 

to a medical exam of her “rectal area.” No vaginal exam was performed because EW “was on [her] period and had a tampon in,” as she had throughout 

the night. The exam and subsequent forensic analysis revealed the presence 

of Appellant’s semen on swabs taken from the area of EW’s anus.

Appellant was interviewed by Sergeant (Sgt) JF of the Nashville Police 

Department that morning. The interview took place in Sgt JF’s vehicle near 

Appellant’s house. Sgt JF recorded the interview on a cell phone. At the outset, Sgt JF informed Appellant that Appellant was not under arrest, did not 

have to talk to Sgt JF, and was free to leave. Sgt JF did not advise Appellant 

of his Miranda3 rights. During the interview, Appellant described going out 

 

3 Miranda v. Arizona, 384 U.S. 436 (1966).
United States v. Gonzalez, No. ACM 39125

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for drinks with EW the previous evening, returning, and continuing to talk 

and drink in EW’s kitchen. He claimed that after EW fell asleep he was unable to wake her, so he carried her upstairs and put her in her bed. Appellant

stated he then departed, leaving the front door unlocked because he did not 

have a key. Appellant denied any sexual activity occurred. Appellant also initially denied there had been any flirtatious behavior; he later claimed EW 

had been flirtatious, although he did not provide any specific examples when 

Sgt JF prompted him. Toward the end of the interview, Sgt JF informed Appellant that EW had told the police Appellant “had sex” with her after she 

passed out.

Shortly thereafter, Appellant sent a text message to his supervisor, Technical Sergeant (TSgt) TR, to report that Appellant would be arriving late for 

duty that day. Appellant claimed the reason for his tardiness was that the 

police had interviewed him about vandalism in his neighborhood. After Appellant arrived for duty, Appellant told another supervisor, TSgt JM, “some 

stuff had been vandalized in his neighborhood” and his neighbor was “freaking out.” He did not mention any allegation of sexual misconduct.

Before trial, the Government provided notice to the Defense pursuant to 

Mil. R. Evid. 404(b) of its intent to introduce at trial Appellant’s statement to 

TSgt TR “to show consciousness of guilt, motive, and intent to deceive.” The 

Defense moved to exclude the evidence. The Defense contended that, in light 

of the circumstances, the statement was not evidence of consciousness of guilt 

or motive, and that any purported intent to deceive was not relevant to the 

sole charged offense of sexual assault. The Defense further argued that, even 

if the evidence were relevant for such a purpose, any legitimate probative 

value did not substantially outweigh the danger of unfair prejudice. See United States v. Reynolds, 29 M.J. 105, 109 (C.M.A. 1989). The Government countered that these false statements were relevant circumstantial evidence of 

Appellant’s consciousness of guilt of the charged offense because they were 

intended to conceal Appellant’s crime from the military, and the probative 

value was not outweighed by the danger of unfair prejudice.

The military judge denied the Defense motion in an oral ruling. Applying 

the three-part test articulated in Reynolds, id., the military judge determined

the court members could find Appellant made an inaccurate statement to 

conceal from his chain of command the reason for his being late to work, 

which was relevant to show a consciousness of guilt. The military judge further found the danger of unfair prejudice was “quite low” and did not substantially outweigh the probative value. Appellant’s statements to his supervisors were subsequently admitted at trial in the form of a stipulation of expected testimony of TSgt TR and witness testimony from TSgt JM. Prior to 

deliberations on findings, the military judge instructed the court members 
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they could consider this evidence “for the limited purpose of its tendency, if 

any, to show [Appellant’s] awareness of his guilt of the offense charged,” but 

not for any other purpose, and they “may not conclude from this evidence that 

[Appellant] is a bad person or has general criminal tendencies and that he 

therefore committed the offense charged.”

II. DISCUSSION

A. Mil. R. Evid. 404(b) Evidence

1. Law

Mil. R. Evid. 404(b) provides that evidence of a crime, wrong, or other act 

by a person is generally not admissible as evidence of the person’s character 

in order to show the person acted in conformity with that character on a particular occasion. However, such evidence may be admissible for another purpose, including inter alia proving motive, intent, or consciousness of guilt. 

Mil. R. Evid. 404(b)(2); United States v. Staton, 69 M.J. 228, 230 (C.A.A.F. 

2010). 

We review a military judge’s decision to admit evidence for an abuse of 

discretion. Staton, 69 M.J. at 230. The United States Court of Appeals for the 

Armed Forces (CAAF) has established a three-part test to review the admissibility of evidence under Mil. R. Evid. 404(b):

1. Does the evidence reasonably support a finding by the court 

members that [the] appellant committed prior crimes, wrongs 

or acts?

2. What “fact . . . of consequence” is made “more” or “less probable” by the existence of this evidence?

3. Is the “probative value . . . substantially outweighed by the 

danger of unfair prejudice”? 

Id. (quoting Reynolds, 29 M.J. at 109). “A military judge abuses his discretion 

when: (1) the findings of fact upon which he predicates his ruling are not 

supported by the record; (2) if incorrect legal principles were used; or (3) if his 

application of the correct legal principles to the facts was clearly unreasonable.” United States v. Ellis, 68 M.J. 341, 344 (C.A.A.F. 2010) (citing United 

States v. Mackie, 66 M.J. 198, 199 (C.A.A.F. 2008)). In reviewing the military 

judge’s decision to admit evidence, we consider the evidence in the light most 

favorable to the prevailing party. United States v. Rodriguez, 60 M.J. 239, 

246−47 (C.A.A.F. 2004).

2. Analysis
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Appellant contends the proffered Mil. R. Evid. 404(b) evidence that he 

misled his supervisors regarding his reason for being late for duty on 5 April 

2013 fails the second prong of the Reynolds test. Specifically, he asserts these

statements had “no bearing on his exposure to the charged offense” but rather were motivated by a desire to “mitigate his failure to report to duty on 

time.” Appellant contrasts these statements with his statements to Sgt JF 

that he had no sexual contact with EW, which he concedes were logically relevant false exculpatory statements that did evidence a consciousness of guilt. 

Appellant further contends the military judge abused his discretion by finding these statements did not unfairly prejudice Appellant when, he asserts, 

evidence that he lied to his supervisors had the “potential to generate conclusions about [Appellant’s] character, veracity, or criminal disposition generally.” We are not persuaded.

Applying the first prong of the Reynolds test, we find the evidence did 

reasonably support a finding Appellant committed a prior crime, wrong, or 

act, specifically that he intentionally misled his supervisors about the reason 

he was late for duty on 5 April 2013. The stipulation of expected testimony of 

TSgt TR and testimony of TSgt JM both supported such a finding. The Defense neither elicited nor offered any evidence to contradict this stipulation 

and testimony. 

As to the second prong, despite Appellant’s argument to the contrary, this 

evidence did make a fact of consequence to the court-martial more probable.

Relevance is a “low threshold.” United States v. Roberts, 69 M.J. 23, 27

(C.A.A.F. 2010). Evidence is relevant if it has any tendency to make the existence of a fact more probable or less probable than it would be without the 

evidence. Mil. R. Evid. 401(a). Pretrial conduct, including misleading or false 

statements, may give rise to negative inferences. United States v. Stadler, 47 

M.J. 206, 211 (C.A.A.F. 1997). In particular, “[a]dmitting evidence tending to 

show the accused’s consciousness of guilt is an accepted principle of military 

jurisprudence.” United States v. Borland, 12 M.J. 855, 857 (A.F.C.M.R. 1981) 

(citing United States v. Hurt, 27 C.M.R. 3 (C.M.A. 1958)). The CAAF has recognized that evidence of consciousness of guilt may properly be admitted pursuant to Mil. R. Evid. 404(b). Staton, 69 M.J. at 230. Viewing the facts of this 

case in the light most favorable to the Government, the court members could

infer from these false statements that Appellant wanted to hide the sexual 

assault allegation from the Air Force because he feared prosecution based on 

a credible allegation of sexual assault.4 By the end of his interview by Sgt JF, 

 

4 The irony of Appellant’s claim that these false statements to his military superiors 

had “no bearing on his exposure to the charged offense”—because the civilian police 

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Appellant was aware not only of the events of the previous night but also that 

EW had told the police that Appellant “had sex” with her after she passed 

out. If, as the Defense suggests, Appellant merely sought to explain his failure to report on time, he could have told his supervisors that he was interviewed by the police without inventing the fictional vandalism. His efforts to 

deceive his supervisors can reasonably be inferred to reflect a consciousness 

of guilt.

Finally, we are not persuaded that the probative value of these statements was substantially outweighed by the danger of unfair prejudice. Appellant lied to two different supervisors about the reason he was interviewed by 

civilian police, evidently in an effort to prevent the Air Force from learning 

about a sexual assault allegation against him. Coupled with his false statements to Sgt JF that same morning, these lies were substantial evidence of a 

consciousness of guilt. On the other hand, the danger of unfair prejudice from 

this evidence was relatively low. Appellant was not charged with making a 

false official statement or similar offense, removing the prospect that evidence of these statements would be misused as character evidence similar to 

a charged offense. In addition, the military judge provided the members an 

appropriate limiting instruction on the proper use of this evidence. Therefore, 

the risk that the court members would misuse this information was relatively 

low.

Accordingly, we conclude the military judge did not abuse his discretion in 

admitting this evidence, and Appellant is entitled to no relief on this basis.

B. Appellant’s Statements to Sgt JF

1. Additional Background

At trial, the Government moved to pre-admit Appellant’s recorded interview by Sgt JF as Prosecution Exhibit 1. The Defense objected specifically on 

the grounds that its probative value was outweighed by the danger of unfair 

prejudice under Mil. R. Evid. 403. Appellant’s civilian defense counsel, JP,

argued that the probative value was low because, given the context that Sgt 

JF had not yet informed Appellant he was accused of any crime, his denial of 

sexual contact was not indicative of a consciousness of guilt. The unfair prejudice, the Defense contended, was that Appellant’s false statements during 

the interview portrayed him as a liar when his credibility was not yet in issue 

because he had not testified before the court members. When the military 

 

were aware of the allegation—is that the Air Force prosecuted him for sexually assaulting EW after the civilian authorities elected not to prosecute the case.
United States v. Gonzalez, No. ACM 39125

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judge inquired whether the Defense objected based on Sgt JF’s failure to advise Appellant of his rights, JP responded “No, sir. It’s not that he should 

have been read his rights; that’s not what I’m purporting at all, sir.”

The military judge overruled the objection, finding that Appellant’s explanation regarding his activities on the night in question was relevant, and 

the possibility that contradictory evidence might be introduced did not create 

a danger of unfair prejudice. The military judge then asked if there were any 

other objections to Prosecution Exhibit 1. Appellant’s counsel stated there 

were not. The military judge admitted the exhibit, which was subsequently 

played in court for the members.

2. Law

In general, we review a military judge’s decision to exclude or admit evidence for an abuse of discretion. United States v. Freeman, 65 M.J. 451, 453 

(C.A.A.F. 2008) (citing United States v. Ayala, 43 M.J. 296, 298 (C.A.A.F. 

1995)). This means the military judge’s findings of fact are reviewed for clear 

error but his conclusions of law are reviewed de novo. United States v. 

Keefauver, 74 M.J. 230, 233 (C.A.A.F. 2015) (citation omitted). “[T]he abuse of 

discretion standard of review recognizes that a judge has a range of choices 

and will not be reversed so long as the decision remains within that range.”

United States v. Gore, 60 M.J. 178, 187 (C.A.A.F. 2004) (citation omitted).

Whether an appellant has waived an issue is a question of law we review 

de novo. United States v. Ahern, 76 M.J. 194, 197 (C.A.A.F. 2017). “Whereas 

forfeiture is the failure to make the timely assertion of a right, waiver is the 

intentional relinquishment or abandonment of a known right.” United States 

v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009) (internal quotation marks and 

citations omitted). When an appellant has “intentionally waive[d] a known 

right at trial, it is extinguished and may not be raised on appeal.” Id. Forfeited objections to evidence are reviewed for plain error, which exists where: (1) 

an error was committed; (2) the error was plain, clear, or obvious; and (3) the 

error resulted in material prejudice to substantial rights. United States v. 

Hardison, 64 M.J. 279, 281 (C.A.A.F. 2007) (citing United States v. Powell, 49 

M.J. 460, 463–65 (C.A.A.F. 1998)).

3. Analysis

Appellant now contends the military judge erred by admitting Appellant’s 

recorded interview because Sgt JF did not administer a rights advisement 

and Appellant did not feel free to leave, despite Sgt JF informing him that he 

was not under arrest and was free to go. In addition, Appellant asserts that 

during the interview he was still too intoxicated from drinking alcohol the 

night before to give valid consent to the interview. As a result, Appellant asserts the findings and sentence should be set aside. We are not persuaded. 
United States v. Gonzalez, No. ACM 39125

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At trial, Appellant’s counsel explicitly disavowed any objection to Prosecution Exhibit 1 based on Sgt JF’s failure to advise Appellant of his rights. In 

context, it is apparent the trial defense counsel did not believe Appellant’s 

interview by Sgt JF was a custodial interrogation, and therefore the requirement for a rights advisement was not triggered. See Miranda, 384 U.S. at 

467–71. We find Appellant waived this issue at trial. Recognizing our authority to decline to apply waiver and take corrective action when warranted, we 

find no such exercise of our authority under Article 66(c),UCMJ, 10 U.S.C. § 

866(c), is appropriate in this case. See United States v. Chin, 75 M.J. 220, 223 

(C.A.A.F. 2016).

As to whether Appellant was too intoxicated to give a voluntary statement, assuming arguendo that the Defense merely forfeited, rather than 

waived, this issue, we find no plain error by the military judge. Involuntary 

statements are generally inadmissible, see Freeman, 65 M.J. at 453, but there 

is little evidence of involuntariness here. Appellant’s answers to Sgt JF’s 

questions during the interview were generally clear and responsive. Appellant’s voice on the recording is not slurred or otherwise suggestive of someone 

significantly impaired by alcohol. On cross-examination, Sgt JF testified he 

could not recall for certain whether he smelled alcohol on Appellant, but he 

believed he did not. Furthermore, the questioning itself was neither overbearing nor particularly manipulative. Accordingly, we find the military judge did 

not commit plain error by failing to exclude sua sponte Appellant’s interview 

by Sgt JF as involuntary due to intoxication.

C. Factual Sufficiency of the Evidence

1. Law

We review issues of factual sufficiency de novo. Article 66(c), UCMJ, 10 

U.S.C. § 866(c); United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 

2002). Our assessment of factual sufficiency is limited to the evidence produced at trial. United States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993) (citations omitted).

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.R. 1987); see also 

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.” Washington, 57 

M.J. at 399.
United States v. Gonzalez, No. ACM 39125

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2. Analysis

As the military judge instructed the court members, the elements of the 

offense charged in this case included:

(1) That on or about 5 April 2013 at or near Nashville, Tennessee, [Appellant] committed a sexual act upon [EW], to wit: penetration of [EW’s] anus with his penis;

(2) That [Appellant] did so by causing bodily harm to [EW], to 

wit: penetrating [EW’s] anus with his penis; and

(3) That [Appellant] did so without the consent of [EW].

See Article 120(b)(1)(B), UCMJ, 10 U.S.C. § 920(b)(1)(B). 

Appellant contends EW’s testimony regarding the sexual assault itself 

was unreliable for two reasons. First, EW testified that when she awoke she 

initially thought her then-boyfriend ME was in her bed, rather than Appellant. Second, although EW testified she was anally penetrated “[a]t least two 

or three times,” she acknowledged on cross-examination that when she was 

interviewed by the Defense the day before trial, she did not say it occurred 

two or three times. In addition, Appellant argues the DNA evidence does not 

confirm anal penetration occurred because the internal anal swab and the 

swab from the external “rectal area” were packaged and tested together.

Having weighed the evidence in the record of trial and having made allowances for not having personally observed the witnesses, we are convinced 

of Appellant’s guilt beyond a reasonable doubt. EW testified Appellant anally 

penetrated her without her consent while she was asleep in her bed. Appellant’s DNA was found on swabs from EW’s rectal area. EW’s initial confusion 

upon being awoken by Appellant’s sexual assault is understandable, but her 

allegation that Appellant anally penetrated her was consistent, immediately 

reported, and powerfully corroborated by the DNA evidence. Appellant’s 

statements to Sgt JF generally corroborate EW’s testimony up to the point 

that she unexpectedly fell asleep in her kitchen. He further confirmed that he 

knew she was asleep and did not consent because he carried her upstairs and 

she did not awaken. The DNA evidence belies Appellant’s claims to Sgt JF 

that no sexual activity occurred at all. We find Appellant’s conviction factually sufficient.

D. Ineffective Assistance of Counsel at Trial

1. Law

The Sixth Amendment guarantees Appellant the right to effective assistance of counsel. United States v. Gilley, 56 M.J. 113, 124 (C.A.A.F. 2001). In 

assessing the effectiveness of counsel we apply the standard set forth in 
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Strickland v. Washington, 466 U.S. 668, 687 (1984), and begin with the presumption of competence announced in United States v. Cronic, 466 U.S. 648, 

658 (1984). See Gilley, 56 M.J. at 124 (citing United States v. Grigoruk, 52 

M.J. 312, 315 (C.A.A.F. 2000)). Accordingly, we “will not second-guess the 

strategic or tactical decisions made at trial by defense counsel.” United States 

v. Mazza, 67 M.J. 470, 475 (C.A.A.F. 2009). We review allegations of IAC de 

novo. United States v. Gooch, 69 M.J. 353, 362 (C.A.A.F. 2011) (citing Mazza, 

67 M.J. at 474).

We utilize the following three-part test to determine whether the presumption of competence has been overcome:

1. Are [A]ppellant’s allegations true; if so, “is there a reasonable explanation for counsel’s actions”?

2. If the allegations are true, did defense counsel’s level of advocacy “fall measurably below the performance . . . [ordinarily 

expected] of fallible lawyers”?

3. If defense counsel was ineffective, is there “a reasonable 

probability that, absent the errors,” there would have been a 

different result?

Gooch, 69 M.J. at 362 (quoting United States v. Polk, 32 M.J. 150, 153 

(C.M.A. 1991)).

2. Analysis

Appellant contends his trial defense counsel, JP and Captain (Capt) AH,

were constitutionally ineffective in two respects. First, he argues trial defense 

counsel failed to use over 100 pages of information gathered from EW’s social 

media accounts to rebut factual assertions in EW’s unsworn statement to the 

court members about the impact of Appellant’s crime. Second, he argues trial 

defense counsel failed to call four potential sentencing witnesses who would 

have been “beneficial” to his case. Appellant submitted a declaration to this 

court in support of these contentions, which essentially indicates that he 

wanted this rebuttal evidence used and these witnesses called, and he did not 

know why they were not.

In response to these allegations, we ordered and received declarations 

from JP and Capt AH. JP’s declaration in particular contradicts Appellant’s 

declaration in that JP asserts Appellant was informed and understood why 

this evidence and these witnesses were not used. Because we are presented 

with conflicting declarations, we have considered whether a post-trial evidentiary hearing is required. See United States v. Ginn, 47 M.J. 236, 248 

(C.A.A.F. 1997); United States v. DuBay, 37 C.M.R. 411, 413 (C.M.A. 1967).

In this case, we are convinced such a hearing is unnecessary. The contradic-
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tions do not involve the substantive decisions the counsel made or the reasons for those decisions, but only Appellant’s purported awareness of those 

reasons. Even if we accepted Appellant’s assertion that he was not aware of 

the reasons, the alleged errors would not result in relief. See Ginn, 47 M.J. at 

248.

Turning to the substance of Appellant’s claims, we find JP and Capt AH 

provide a reasonable explanation why they did not attempt to rebut EW’s unsworn victim impact statement with her social media information. The material did not particularly rebut EW’s unsworn statement, and Appellant provides no examples of specific contradictions. Even if it were admissible as rebuttal evidence, the material, including “ordinary pictures of someone going 

on with their life” as JP put it, was unremarkable and unlikely to impress the 

court in Appellant’s favor. In addition, JP and Capt AH reasonably feared using such material to challenge whether EW suffered negative emotional impact from the sexual assault—of which the court members had just convicted 

Appellant—risked depicting Appellant as unrepentant and vindictive. 

Similarly, trial defense counsel’s decisions not to call the four potential 

sentencing witnesses were also reasonable. Two of the potential witnesses, 

Staff Sergeant JW and TSgt SO, were a former co-worker and a former supervisor of Appellant. JP explained that after he initially made contact with 

each, they failed to respond to his repeated subsequent efforts to contact 

them again. As to their potential testimony, Appellant relates only that they 

“knew [him] well and had first-hand knowledge about [his] character, work 

ethic, and personal life.” He does not cite any specific or unique information 

they might have provided that would have substantially enhanced the Defense’s sentencing case.

JP and Capt AH considered having the third potential witness, the defense expert psychologist, testify in sentencing, and they had the expert conduct certain testing on Appellant related to recidivism risk to prepare for that 

possibility. However, after the defense expert was interviewed by trial counsel and the Government’s expert in forensic psychology, the defense expert 

advised JP and Capt AH that his testimony might be more harmful than 

beneficial in light of the anticipated cross-examination. Specifically, the defense expert’s potentially favorable testimony regarding Appellant’s risk of 

recidivism was based on Appellant’s revised version of what occurred on the 

night in question, which was that he and EW engaged in consensual sex. 

That version of events was discredited, to put it mildly, by the evidence presented and the findings of the court. Not only would cross-examination have 

gravely undermined the basis for the defense expert’s opinion, but it would 

have given the Government another opportunity to highlight Appellant’s lies 
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and portray him as unrepentant. In this light, we find the decision not to put 

the defense expert on the stand more than reasonable.

Finally, Appellant complains JP and Capt AH did not have the fourth potential witness, Appellant’s treating mental health provider, testify in sentencing about his medical problems. JP and Capt AH agreed that calling the 

provider as a witness risked exposing detrimental information in Appellant’s 

mental health profile, to include the results of his sanity board. Having Appellant’s provider testify risked opening the door to this information, which 

could have damaged the Defense sentencing case. Appellant was able to provide a general overview of his then-existing medical problems to the court 

members in his unsworn statement, without the provider’s testimony. Under 

these circumstances, we find JP and Capt AH’s decision not to call the provider was reasonable and did not fall measurably below the performance expected of fallible lawyers. See Gooch, 69 M.J. at 362. Assuming arguendo that 

it was deficient, Appellant has not shown what specifically the provider 

would have testified to or how it would have added to the unrebutted information in his unsworn statement. Accordingly, even if JP and Capt AH had 

been deficient, we cannot discern a reasonable probability the outcome of the 

court-martial would have been more favorable to Appellant absent the error. 

Id.

E. Post-Trial Medical Care

1. Additional Background

Prior to Appellant’s court-martial, he had received extensive medical 

treatment for the deployment injury to his back and a variety of other service-related medical problems. On 22 April 2016, the day following his trial, 

Appellant was examined at Fort Campbell and found medically fit for confinement. He arrived at Naval Consolidated Brig Miramar (NCBM) on 12 

May 2016 to continue his sentence to confinement.

A letter dated 7 June 2016, signed by Appellant’s stepfather, HL, and 

mother, JL, and addressed to the NCBM commanding officer, described Appellant’s medical problems and treatment history in some detail.5 The letter 

complained that his treatments had not been continued following his arrival 

 

5 The letter described the treatment Appellant had been receiving prior to his courtmartial as follows: “physical therapy 3–4 times a week, psychiatry 1–2 times a 

month, psychology 1–2 times a week, aqua therapy 3–5 times a week, yoga 2–3 times 

a week, constant cranial electrotherapy stimulation (device), stimulation-ultrasound 

for his back 3–5 times a week, acupuncture, heat therapy, cold therapy, music-waves 

relaxation, stretching table, Lidocaine Patch 5% daily and [nerve blockers].”
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15

at NCBM, and expressed concern Appellant’s condition was “deteriorating 

drastically.” Appellant’s parents specifically complained about a particular 

incident on 25 May 2016 when they alleged Appellant was denied adequate 

medical care and ended up being taken to an emergency room. Appellant’s 

parents requested an investigation of this incident, and more generally that 

Appellant receive “proper and rapid medical, mental and physical treatment.” 

This letter was included in the clemency materials Appellant submitted to 

the convening authority pursuant to Rule for Courts-Martial (R.C.M.) 1105. 

Appellant’s declaration to this court dated 21 August 2017 contains a very 

general statement that he has not received the medical care that he has requested, but also asserts his parents’ 7 June 2016 letter “accurately captures 

what [he has] been experiencing in terms of medical care.” 

In response to Appellant’s declaration, the Government submitted a declaration from the NCBM commanding officer dated 2 November 2017. The 

declaration generally describes the medical care available to prisoners. With 

respect to Appellant, it notes that since his arrival at NCBM, Appellant had 

“attended 72 medical appointments, to include specialty care at Naval Medical Center San Diego and physical therapy,” and received medication as “determined as part of his medical treatment plan and monitored by a licensed 

physician and psychiatrist.” The declaration addresses the 25 May 2016 incident, describing how Appellant apparently suffered a significant medical episode that exceeded the NCBM medical clinic’s capabilities and did result in 

his transportation to the Naval Medical Center San Diego emergency room. 

The declaration addresses the medical reasons why Appellant’s regular medications were changed upon his arrival at NCBM, and asserts he “has not requested any additional evaluations or additional medications for pain management” beyond those he currently receives. Finally, the declaration summarizes the types of specialty medical care he had received since the 25 May 

2016 incident, including treatment for traumatic brain injury, physical therapy, speech therapy, neurology, spine adjustment, post-traumatic stress disorder, and the provision of an electrical nerve stimulation device kept by Appellant for his use as needed.

2. Law

“Both the Eighth Amendment and Article 55, UCMJ, prohibit cruel and 

unusual punishment. In general, we apply the Supreme Court’s interpretation of the Eighth Amendment to claims raised under Article 55, UCMJ, except where legislative intent to provide greater protections under Article 

55 . . . is apparent.” United States v. Gay, 74 M.J. 736, 740 (A.F. Ct. Crim. 

App. 2015) aff’d, 75 M.J. 264 (C.A.A.F. 2016). To demonstrate a violation of 

the Eighth Amendment, an appellant must show: 
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16

(1) an objectively, sufficiently serious act or omission resulting 

in the denial of necessities; (2) a culpable state of mind on the 

part of prison officials amounting to deliberate indifference to 

[his] health and safety; and (3) that [he] has exhausted the 

prisoner-grievance system . . . and that he has petitioned for relief under Article 138, UCMJ, 10 U.S.C. § 938.

United States v. Lovett, 63 M.J. 211, 215 (C.A.A.F. 2006). Pursuant to our 

broad authority and mandate under Article 66(c), UCMJ, to approve only so 

much of the sentence as we find appropriate in law and fact, we may grant 

sentence relief due to an appellant’s post-trial treatment even in the absence 

of an Eighth Amendment or Article 55, UCMJ, violation. Gay, 74 M.J. at 

742–43; see United States v. Tardif, 57 M.J. 219, 223 (C.A.A.F. 2002).

3. Analysis

Appellant has failed to demonstrate he suffered cruel or unusual punishment in violation of the Eighth Amendment or Article 55, UCMJ. We 

acknowledge that the provision of adequate medical care is a necessity. In 

addition, we do not question that Appellant has significant, chronic medical 

problems, or that on 25 May 2016 he suffered acute medical distress that was 

dangerous, painful, and frightening. However, it does not appear that event 

was triggered by any dereliction on the part of confinement authorities, and 

it is apparent those authorities treated the event as a medical emergency and 

secured emergency care for Appellant. It is also apparent NCBM authorities 

have gone to significant lengths to secure appropriate care for Appellant’s 

chronic health problems. Although Appellant complains that he has not received the same amount of care he was receiving prior to his confinement, 

and that he “feel[s] like” he is “going backwards in terms of treatment,” Appellant has provided no medical evidence that his health has declined since 

25 May 2016.

On the record before us, we find Appellant has failed to demonstrate either “an objectively, sufficiently serious act or omission resulting in the denial of necessities” or “a culpable state of mind on the part of prison officials 

amounting to deliberate indifference to [his] health and safety.” Lovett, 63 

M.J. at 215. In addition, we have considered whether the conditions of Appellant’s confinement warrant sentence relief under our Article 66(c), UCMJ,

authority even in the absence of cruel or unusual punishment. See Gay, 74 

M.J. at 742–43. We find they do not.

F. Post-Trial Ineffective Assistance of Counsel

1. Additional Background

On 3 May 2016, Capt AH submitted a request that the convening authority defer Appellant’s forfeitures of pay and allowances and reduction in grade
United States v. Gonzalez, No. ACM 39125

17

until action, and waive mandatory forfeitures for six months for the benefit of 

Appellant’s dependent son, pursuant to Articles 57(a)(2) and 58b(b), UCMJ, 

10 U.S.C. §§ 857(a)(2), 858b(b). On 9 May 2016, in accordance with the advice 

of the SJA, the convening authority deferred forfeitures until action, postponed a decision on waiver of mandatory forfeitures until action, and declined 

to defer Appellant’s reduction in grade.

On 27 June 2016, the SJA prepared a written recommendation (SJAR) 

advising the convening authority to approve the court-martial findings and 

the bad-conduct discharge, confinement for six years, and reduction to E-1, 

and to waive mandatory forfeitures for six months for the benefit of Appellant’s son. This recommendation was served on Appellant and trial defense 

counsel.

On 3 August 2016, Appellant’s civilian trial defense counsel, JP, delivered 

a voluminous clemency submission to the convening authority on behalf of 

Appellant pursuant to R.C.M. 1105 and requested that the “charges be dismissed” or in the alternative that Appellant be administratively discharged 

in place of the court-martial conviction and sentence. JP’s memorandum affirmed that he continued to represent Appellant. It referred to many of the 

numerous documents Appellant wanted the convening authority to consider, 

including Appellant’s own memorandum. However, JP did not refer to any 

allegations that he or Capt AH had provided ineffective assistance during 

Appellant’s trial, nor to any potential conflict of interest regarding his continued representation of Appellant.

As part of the clemency submission, Appellant provided a lengthy memorandum (signed by his mother exercising power of attorney) dated 3 August 

2016. Therein, Appellant specifically criticized JP’s performance as his trial 

defense counsel in several respects and stated, “The sum of all the actions 

and the statements above seem to reflect ineffective and insufficient representations by my attorney.”

Appellant’s stepfather, HL, a lawyer who observed and briefly testified at 

Appellant’s trial, also provided a lengthy memorandum for the convening authority dated 25 July 2016. Among other complaints, HL extensively criticized JP’s performance at Appellant’s trial and specifically accused JP of 

providing IAC. In addition, HL asserted JP “is specifically and well aware 

that I am totally displeased with his performance, and specifically invited me 

through my wife to state my full critique and present it to the Convening Authority.” 

Appellant’s mother, JL, provided a memorandum for the convening authority dated 3 August 2016 that asserted, inter alia, JP provided ineffective 

assistance to Appellant. JL’s memorandum criticized JP’s performance in 
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several respects and repeatedly asserted JP “failed” her son. She further asserted that after the trial, JP “invited us to place in our letters for clemency 

any criticism.” 

On 8 August 2016, the SJA prepared an addendum to the SJAR that advised the convening authority, inter alia, as follows:

[Appellant] alleges legal error in the form of ineffective assistance of counsel. Specifically, [Appellant] alleges his civilian defense counsel failed to introduce certain evidence and call certain witnesses at trial that would have been helpful to his case. 

[Appellant] also believes he did not receive a fair trial. I have 

carefully considered these allegations, and find them to be 

without merit.

The addendum did not address any potential conflict arising from JP’s continued representation of Appellant during the clemency process in light of the 

allegations that JP provided ineffective assistance at trial. The SJA advised 

the convening authority his prior recommendation remained unchanged. The 

memoranda from JP, Appellant, HL, and JL described above were all among 

the numerous clemency documents listed as attachments to the addendum 

and provided to the convening authority.

On 10 August 2016, consistent with the SJA’s advice, the convening authority approved the findings and the bad-conduct discharge, confinement for 

six years, and reduction to E-1; did not approve the adjudged forfeitures; and 

waived the mandatory forfeitures for six months for the benefit of Appellant’s 

son.

Appellant did not raise the issue of post-trial IAC in his assignments of 

error. On 31 January 2018, this court issued an order to the Government to 

show good cause as to why a new post-trial process and action were not required due to JP’s apparent conflict of interest. In response, the Government 

obtained additional declarations from JP and Capt AH.

JP stated, inter alia, he was aware Appellant and Appellant’s family were 

“not happy” with the results of the court-martial. He stated that when he met 

with Appellant after the trial, he asked Appellant whether Appellant wanted 

him to continue to represent Appellant. Appellant said he wanted JP to stay 

on as his counsel for his post-trial clemency matters. In a separate post-trial 

meeting with Appellant’s mother, JL, who had a power of attorney from Appellant, JP advised her that “if there was a problem” Appellant could terminate JP and use only Capt AH, or Appellant could obtain new counsel. JL 

told JP that JP would remain on the case. JP further asserted that he felt no 

conflict of interest, that “[n]ot agreeing with trial tactics does not mean that I 
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19

have a conflict of interest,” and that he did “not resent clients being critical of 

their results.”

Capt AH stated, inter alia, that before trial she advised Appellant of his 

rights to counsel, including his right to terminate herself or JP at any point. 

At no point did Appellant express a desire to terminate her or JP. Capt AH 

did not recall Appellant expressing dissatisfaction with their performance 

when she spoke with Appellant after trial. She was aware Appellant’s parents were dissatisfied with JP’s performance at trial and there had been a 

verbal confrontation between HL and JP during the trial. However, following 

this confrontation, JP confirmed with Appellant that Appellant wanted JP to 

continue to represent Appellant. 

In response to these declarations, Appellant provided a declaration from 

JL, his mother. JL stated, inter alia, that JP “never spoke to us” about any 

conflict of interest that arose from the dissatisfaction of Appellant and his 

parents with JP’s performance. In addition, JL asserted that she “did most of 

the work during clemency” because “[t]here was no Clemency strategy” and 

Appellant’s “attorneys provided minimal useful and constructive help.” 

2. Law

We review questions of IAC de novo. Gooch, 69 M.J. at 362. A military accused has a fundamental right to effective assistance of counsel after his trial. United States v. Knight, 53 M.J. 340, 342 (C.A.A.F. 2000) (citing United 

States v. Palenius, 2 M.J. 86 (C.M.A. 1977)). “This right to the effective assistance of counsel means the right to effective assistance of conflict-free counsel.” United States v. Carter, 40 M.J. 102, 105 (C.A.A.F. 1994). “Where an accused attacks the competence of trial defense counsel, a conflict of interest 

may arise because it raises the question of whether trial defense counsel is 

‘mentally free of competing interests.’” United States v. Cornett, 47 M.J. 128, 

133 (C.A.A.F. 1997) (quoting United States v. Cornelious, 41 M.J. 397, 398 

(C.A.A.F. 1995)); see also United States v. Cavan, 48 M.J. 567, 569 (A.F. Ct. 

Crim. App. 1998) (SJA has obligation to address apparent conflict of interest 

for defense counsel representing accused post-trial in light of accused’s complaint of ineffective assistance by that defense counsel).

3. Analysis

It is apparent JP had a conflict of interest in continuing to represent Appellant during the post-trial process, given the specific allegations by Appellant, HL, and JL of JP’s ineffectiveness at trial. Appellant sought relief from 

the convening authority in part based on JP’s allegedly deficient performance

at trial. For JP’s part, he had an obvious personal interest in defending his 

performance at trial. Both this court and the CAAF have recognized that continued representation by allegedly ineffective counsel in the shadow of such a 
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conflict raises the specter of IAC. See Carter, 40 M.J. at 105; Cavan, 48 M.J. 

at 569. As a result, Appellant now asserts a new post-trial process and convening authority action are required.

However, the Government argues there is no error here. It contends Appellant and his family made an informed decision to have JP continue to represent Appellant for clemency purposes, despite their dissatisfaction with 

JP’s trial performance. The Government also relies on JP’s affirmation that 

he was not offended by the complaints of Appellant and Appellant’s family, 

and that his interests remained aligned with Appellant’s. We are not persuaded.

The Government misconstrues the nature of the problem, which is that a 

conflicted counsel is a constitutionally inadequate counsel for purposes of 

post-trial representation of an accused. Under both the Sixth Amendment6

and Article 27, UCMJ, 10 U.S.C. § 827, an accused is entitled to effective 

counsel—meaning conflict-free counsel—at the post-trial stage. Carter, 40 

M.J. at 105 (citations omitted). Securing an accused’s agreement to continue 

the complained-of counsel’s representation in spite of the conflict does not resolve the conflict. Similarly, the counsel’s assurance that he is not offended by 

the allegation of ineffectiveness does not resolve the conflict. In Carter, the 

CAAF explained that once a defense counsel becomes aware of an allegation 

of ineffectiveness,

[d]efense counsel should advise the client as to the consequences of the termination of the relationship . . . and determine if 

the client wants to discharge the attorney or is merely making 

the allegation out of frustration. . . . If [the] appellant and his 

counsel are able to resolve that issue, then there could be continued representation by the same counsel.

Id. (citations omitted) (emphasis added). Contrary to the Government’s position that it is sufficient to inform Appellant of his right to secure new counsel 

and to obtain Appellant’s agreement to retain the allegedly ineffective counsel, Carter articulates two possible resolutions to the situation, both of which 

eliminate the conflict itself. First, the conflicted counsel may cease to represent the accused. Second, if the accused was merely speaking “out of frustration” and counsel and client are able to “resolve” the issue such that no allegation of IAC persists, there “could be continued representation.” Id.

 

6 U.S. CONST. amend. VI.
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21

Neither resolution was achieved here. Despite JP’s evident awareness of 

the IAC allegations in the clemency submission, JP continued to represent 

Appellant for clemency purposes. Meanwhile, Appellant continued to assert, 

both to the convening authority and on appeal, that JP rendered ineffective 

assistance at trial. JP’s memorandum to the convening authority was notably 

silent regarding Appellant’s assertion of IAC, and, as described above, JP 

provided a declaration to this court that contradicted and rebutted Appellant’s allegation of IAC on appeal. Thus the conflict persisted.

We further note the SJA erred in failing to ensure this issue was properly 

addressed. In Cavan we found, similar to the facts here, the “SJA was clearly 

on notice of [the] appellant’s complaint against his defense counsel from [the] 

appellant’s clemency letter.” 48 M.J. at 569. We held the “SJA erred in not 

advising defense counsel of the apparent dissatisfaction of his client, and in 

proceeding with the post-trial process before this issue was properly resolved.” Id. We then set aside the convening authority’s action and directed a 

new clemency process, with conflict-free defense counsel to represent the appellant. Id. Similar corrective action is required here. See United States v. 

Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998) (stating a colorable showing of possible prejudice arising from SJAR error requires either meaningful relief or 

new post-trial process and action).

G. Delayed Appellate Review

Appellant’s case was docketed with this court on 24 August 2016, more 

than 18 months before a decision was rendered. In United States v. Moreno, 

our superior court established a presumption of facially unreasonable delay 

when a service Court of Criminal Appeals does not take action within 18 

months of docketing. 63 M.J. 129, 142 (C.A.A.F. 2006).

Because there is a facially unreasonable 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 his 

right to a timely review; 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); United 

States v. Toohey, 60 M.J. 100, 102 (C.A.A.F. 2004)). “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). 

However, where an appellant has not shown 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). 

As to the first factor—the length of the delay—the appellate review of Appellant’s case has exceeded the Moreno standard of 18 months by less than 
United States v. Gonzalez, No. ACM 39125

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one month. Accordingly, this factor weighs in Appellant’s favor, but only 

slightly. 

As to the second factor—the reasons for the delay—Appellant filed his assignments of error on 21 August 2017 after securing six enlargements of 

time. On 31 August 2017, the Government requested an order to compel declarations from JP and Capt AH responsive to the IAC allegations, and an enlargement of time until 30 days after the Government received such declarations in order to file its answer. This court granted both. The Government received the initial declarations in October 2017 and filed its answer on 13 November 2017, at which point the case was joined before this court. Upon review of the record of trial, this court identified the issue of JP’s conflict of interest involving his representation of Appellant during the post-trial process, 

which neither party had addressed or identified. Accordingly, on 31 January 

2018 this court issued a show cause order to the Government, which led to 

the procurement of additional declarations from JP and Capt AH as described 

above. The Government filed its response to the show cause order on 28 February 2018, and Appellant replied to the Government’s answer on 7 March 

2018. In summary, the delays in this case were primarily attributable to Appellant’s requests for enlargements of time, the Government’s need to obtain 

declarations from trial defense counsel to respond to allegations of IAC at trial, and the need for this court to adjudicate a substantial issue of post-trial 

IAC, which Appellant failed to raise but for which he now seeks relief and

which requires corrective action. In addition, a total of 11 distinct issues were 

before the court for decision. Under these circumstances, we find the reasons 

for delay weigh moderately against a finding of a due process violation.

As to the third factor—Appellant’s assertion of his right to timely review—Appellant has lately asserted his right to timely review. Accordingly, 

this factor weighs slightly in Appellant’s favor.

Turning to the fourth factor—prejudice—we note Moreno identified three 

types of prejudice arising from post-trial processing delay: (1) oppressive incarceration; (2) anxiety and concern; and (3) impairment of the appellant’s 

ability to present a defense at a rehearing. 63 M.J. at 138–39. Where, as here, 

an appellant does not prevail on the substantive grounds of his appeal, there 

is no oppressive incarceration. Id. at 139 (citing Cody v. Henderson, 936 F.2d 

715, 720 (2d Cir. 1991)). Similarly, where Appellant’s substantive appeal 

against his conviction fails, his ability to present a defense at a rehearing is 

not impaired. See id. at 140–41. Furthermore, we do not discern any “particularized anxiety or concern that is distinguishable from the normal anxiety 

experienced” by appellants awaiting an appellate decision. See id. at 140. Accordingly, this factor weighs substantially against Appellant. See Toohey, 63 

M.J. at 362.
United States v. Gonzalez, No. ACM 39125

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Considering all the factors together we do not find a violation of Appellant’s due process right to timely post-trial processing and appeal.

Recognizing our authority under Article 66(c), UCMJ, we have also considered whether relief for excessive post-trial delay is appropriate in this case 

even in the absence of a due process violation. See United States v. Tardif, 57 

M.J. 219, 225 (C.A.A.F. 2002). After considering the factors enumerated in

Gay, 74 M.J. at 744,7 we conclude it is not. 

III. CONCLUSION

The record of trial is returned to The Judge Advocate General for remand 

to the convening authority for a new post-trial process and action consistent 

with this opinion. We further direct Appellant be provided new, conflict-free 

counsel to represent him in responding to the SJAR and submitting clemency 

matters to the convening authority pursuant to R.C.M. 1105. Article 66(e), 

UCMJ, 10 U.S.C. § 866(e). Thereafter, the record of trial will be returned to 

this court for completion of appellate review under Article 66, UCMJ, 10 

U.S.C. § 866.

FOR THE COURT

CAROL K. JOYCE

Clerk of the Court

 

7 These factors include: (1) how long the delay exceeded the standards set forth in 

Moreno; (2) what reasons, if any, the Government set forth for the delay, and whether there is any evidence of bad faith or gross indifference to the overall post-trial processing of this case; (3) whether there is evidence of harm to the appellant or institutionally caused by the delay; (4) 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; (5) whether there is any evidence 

of institutional neglect concerning timely post-trial processing; and (6) given the passage of time, whether this court can provide meaningful relief in this particular situation.