## U NITED 

## S TATES 

## A IR 

## F ORCE 

## C OURT OF 

## C RIMINAL 

## A PPEALS

_______ _______ __________

No. ACM 39125

_______ _______ __________

UNITED STATES Appellee

v.

John D. GONZALEZ
Senior Airman (E

- 4) , U.S. Air Force, Appellant

_______ _______ __________ Appeal from the United Stat es Air Force Trial Judiciary

Decided 22 March 2018

_______ _______ __________ Military Judge: Marvin W. Tubbs II

. Approved sentence: Bad

- conduct discharge, confinement for 6 years,
and r eduction to E

- 1 . Sentence adjudged 21 April 2016 by GCM c onvened at Scot t Air Force Base, Illinois

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

For Appellee: Lieutenant Colonel Joseph J. Kubl er, USAF; M ajor Mary Ellen Payne , USAF; Major J. Ronald Steelman III, USAF; Gerald R.
Bruce , Esquire

.
B efore JOHNSON, MINK, and DENNIS

, Appellate Military Judges

. Senior Judge JOHNSON delivered the opinion of the c ourt, in which Judge MINK and Judge DENNIS joined

.

_______ _______ __________

This is an unpublished opinion and, as such, does not serve as preced ent under AFCCA Rule of Pr actice and Procedure 18.4.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 assaultUnited States v. Gonzalez , No. ACM 39125

2 by caus ing 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 appe al: (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 civil ian 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 coun sel (IAC) during
the trial ; (5) Whether Appellant is ent itled to se ntence relief due to the Govern ment’s failure to provide him adequate medical care during his post

- trial
confinement ; (6 ) Whether the mi litary judge erred by permitting a Government witness to testify as an expert in “medical legal examinatio ns” ; (7 )Whether the Government violated its discovery obligations by failing to disclose defects in the chain of custody of certain evi dence; (8 ) Whether the military judge erred by accepting trial counsel’s race

- neutral explanation for exercising a perempto ry 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 o f IAC during the post

- trial process

not initially raised by Appellant

, and a facially un re asonable delay in the appellate review of Appellant’s case. We find no error with respect to the issues initially raised b y Appellant 2 and no relief warranted for the delay in appel-

1 Appellant personally raises iss ues (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. Wit h 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 issu e (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

( Footnote continues on next page)United States v. Gonzalez , No. ACM 39125

3 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. B ACKGROUND
Appellant was a tactical air controller st ationed at For t Campbell, Kentucky, but who lived in Nashville, Tennessee, wi th 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, andEW had a key to Appellant’s house because she would often babysit Appellant’s son as well as pick him up f rom daycare.

In early April 2013, EW’s then

- boyfriend ME was out of town for work

related 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 “ma ke sure that he’d be okay.” Appellant had suffered a noncombat back injury during a deployme nt 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 o f 4 April 2013. Although she felt “exhausted” and “drained,” she invited Appellant to go out and “havea drink.” Appellant accepted on the condition that EW drive because Appellant had already been drinking alcohol . EW also invite d a female friend, but
tha t friend did not join them. EW and Appellant visited two bars. EW drank

tw o mixed drinks at the first; at the second, Appellant o rdered a beer for EW
but she did not drink it . They talked about EW’s frustrations with her work and issues in Appellant’s marr iage. 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 i n to pajama pants and a t

- shirt. Appellant came to EW’s house a nd they continued talking in EW’s kitchen. Appellant continued to drink beer; EW had “a few sips.” There was no kissing

deci sion 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).United States v. Gonzalez , No. ACM 39125

4 or other flirtatious behavior. EW felt cold, so s he moved to sit over an air vent on the floor of the kitchen. In that position, she fell asleep.

EW awoke in her bed. He r 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,’ bec ause 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 f rom 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 EWwas “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. Thepolice and JS arrived at EW’s house at approximately the same time. The polic e 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 ki tchen floor “sobbing uncontrollably” and apparently “traumatized.” MM heard EW say, inter alia , that she was afraid Appellant would “come bac k and hurt [EW] if he knew [EW ] called the police.”

Eventually the police trans ported EW to a hospital where she c onsented to a medical exam of her “rectal area.” No vagina l 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 sw abs 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 Miranda 3 rights. During the interview, Appellant described going out

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

5 for drinks with EW th e previous evening, returning, and continuing to talkand 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 un locked because he did nothave a key. Appellant denied any sexual activity occurred. Appellant also initially denied there had been an y flirtatious behavior; he later claimed EW
had been flirtatious

, although he did not provide any specific exa mples when
S gt 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 vandali sm in his neighborhood. After Appellant arrived for duty, Appellant told another supervi sor , TSgt JM, “somestuff 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 A ppellant’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 e vidence 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 pro bative 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 consciousne ss 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 Defe nse motion in an oral ruling . Appl ying
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 membersUnited States v. Gonzalez , No. ACM 39125

6 they could consider this evidence “for the limited purpose of its tendency, if any, to sho w [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 cha rged.”

II. D ISCUSSION

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, int ent, 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 u nder 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 ev idence?

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 findi ngs of fact upon which he predi cates his ruling are no t supported by the reco rd; (2) if incorrect legal prin ciples were used; or (3) if hisapplication 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. Mack ie , 66 M.J. 198, 199 (C.A.A.F. 2008)). In reviewing the military judge’s decision to admit evidence, w e 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. AnalysisUnited States v. Gonzalez , No. ACM 39125

7 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 assert s 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 c ontact 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 unfa irly prejudice Ap pellant 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, o r act, specifically that he intentionally misled his supervisors about the reason he was late for duty on 5 Apr il 2013. The stipulation of expected testimony o f TSgt TR and test imony 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 m ake a fact of consequence to the court

- marti al 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 probab le 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 eviden ce 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 CAA F has recognized tha t evidence of consciousness of guilt may properly be admitted pursuant to Mil. R. Evid. 404(b). Staton , 69 M.J. at 230. V iewing the facts of this

case in the light most favorable to the G overnment, the court members could
infer from these false statement s 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

( Footnote continues on next page)United States v. Gonzalez , No. ACM 39125

8 Appellant was aware not only of the events of the previou s night but also that
EW had told t he pol ice that Appellant “had sex” with her after she passedout. 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 b y 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 substantia lly outw eighed 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. Coupl ed wit h 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
fal se official statement or similar offense , removing the prospect that evidence of these statement s would be misused as character evidence similar to a charged offense

. In addition, t he 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 Go vernment moved to pre

- admit Appellant’s recorded interview by Sgt JF as Prosecution Exhibit 1. The Defense objected specifically on the grounds that its p robative 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 wh en his credibility was not yet in i ssue because he had not testified before the court members. When the military

were aware of the allegation

— is that the Air Force prosecute d him for sexually assaulting EW after the civ ilian authorities elect ed not to prosecute the case

.United States v. Gonzalez , No. ACM 39125

9judge inquired whether the Defense objected based on Sgt JF’s failure to advise Appellant of his righ ts, 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 introduc ed 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, w e review a military judge’s decision to exclude or admit evidence for an abuse of disc retion. 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.

1 995)). 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 re view recognizes that a judge has a range of choices and will not be reversed so long as the decision remains within that rang e.”
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 quest ion 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 kn own right at trial, it is exting uished and may not be raised on appeal. ” Id. Forfeited objections to evidence are r eviewed 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

10At 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

contex t, it is apparent the trial defense counsel did not believe Appellant’sinterview 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 th is 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. Chi n , 75 M.J. 220, 223 (C.A.A.F. 2016).

As to whether Appellant was too intoxicated to give a voluntary statement, a ssuming arguendo that the Defense merely forfeited, ra ther than waived, this issue , we find no plain error by the military judge. Involuntary

s tatements are generally inadmissible, see Freeman , 65 M.J. at 453, but there
is little evidence of invol u ntariness 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, t he questioning it self 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 E vidence

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. Unit ed 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 allowanc es for not having personally ob served the witnesses, [we are] convin ced 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 a t the evi dence,” applying “neither a pre sumption of innocence nor a presumption of guilt” to “make [our] own in dependent 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

11 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: penetra tion 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 M E was in her bed, rather than Appellant. Second, although EW tes tified 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 bef ore 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.

H aving 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 claim s 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 as sistanc e 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 inUnited States v. Gonzalez , No. ACM 39125

12 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 coun sel.” United States
v. Mazza , 67 M.J. 470, 475 (C.A.A.F. 2 009). 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 te st to determine whether the presumption of competence has been overcome:

1. Are [A] ppellant’s allegations t rue; 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 be low the perfor mance . . . [ordi narily 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 respons e 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 use d. Because we are presented
with c onflicting declarations, we have consider ed whether a post

- trial evidentiary hearing is required

. See Unit ed 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 th is case, we are convinced such a hearing is unnecessary. The contradic-United States v. Gonzalez , No. ACM 39125

13 tions do not involve the substantiv e decisions the counsel made or the reasons for those decisions, but only Appellant’s purported awareness of those reasons. Even if we accepted Appella nt’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 claim s, we find JP and Capt AH provide a reasonable explanation why they did not attempt t o 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 thecourt 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 def ense counsel ’ s decisions not to call the four po tential

sente ncing witnesses were also reasonable. T wo of the potential witnesses

, Staff Se rgeant JW and TSgt SO, were a former co

- worker and a former supervisor of Appe l lant. JP explained that after he initially made contact with each, they failed to respond to his re peated 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 informationthey 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 thatpossibility. 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
recid iv ism 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 undermin e d the basis for the defense expert’s opinion, but it would
have give n the Government another opportunity to highlight Appellant’s liesUnited States v. Gonzalez , No. ACM 39125

14 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 t he court
members in his unsworn statement , without the provider’s testimony . Underthese circumstances, we find JP and Capt AH’s decision not to call the provider w as 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 add ed 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 e rror. Id.

E. Post

- Trial Medical Care

1. Additional Background

Prior to Appellant’s court

- m artial, 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, t he 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 de scribed the treatment Appellant had been receiving prior to his court

martial as follows: “physical therapy 3

– 4 times a week, psychiatry 1

– 2 t imes 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

- wave s relaxation, stretching table, Lidocaine Patch 5% daily and [nerve blockers].”United States v. Gonzalez , No. ACM 39125

15 a t 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 take n 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 submi tted 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 verygeneral statement that he has not received the medical care that he has requested, but also assert s 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
de claration generally describes the medical care available to prisoners. Wit h 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 phys ical therapy,” and received medication as “determined as part of his medical treatment plan and monitored by a licensed physician and psychiatrist.” The declaration addresse s the 25 May 2016 incident , describing how Appellant apparently suffered a signific ant 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 chang ed 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 rece ived since the 25 May2016 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 Appellan t 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 inter pretation of the Eighth Amendment to claims raised under Article 55, UCMJ, except where le gislative intent to provide greater protections un der 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:United States v. Gonzalez , No. ACM 39125

16 (1) an objectively, sufficiently serious act or omission result ing in the denial of necessities; (2) a culpable state of mind on the part of prison officials a mounting to deliberate indiffer ence to [his] health and safety; a nd (3) that [he] has exh aust ed the prisoner

- grievance sy stem

. . . and that he has peti tioned for r elief 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

sen tence 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 Unit ed 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 c are is a necessity. In addition, we do not question that Appellant has significant, chronic medical problems, or that on 25 May 201 6 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 leng ths 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 t reatment,” Appellant has provided no medical evidence that his health has declined since 25 May 201 6

. 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 indiff erence to [his] health and safe ty .” Lovett , 63 M.J. at 215. In addition, we have considered whether t he conditions of Appellant’s con finement warrant sentence relief under our Article 66(c) , U CM J, 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 Ineffectiv e Assistance of Counsel

1. Additional Background

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

17 until action

, and waive mandatory forfeitures for six months for th e benefit of Appellant’s depend ent 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 t he 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. Thi s recommendation was served on Appellant and trial defense
counsel

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

, delivered a voluminous clemency s ubmission to the convening authority on behalf of Appellant pursuant to R.C.M. 1105 and request ed that the “charges be dismissed” or in the alternative that Appe llant be administratively discharged in place of the court

- martial conviction and sentence. JP’ s memorandum affirmed that he continue d to represent Appellant. It re ferred to many of the
numerous docume nts Appellant wanted the conven ing authority to consider, including Appellant’s own memorandum. However, JP did not refer to any allegations that he o r Capt AH had provided ineffective assistance during Appellant’s trial, nor to any potential con flict of interest regarding his continued representation of Appellant.

As part of the clemency submission, Appellant provided a lengthy memorandum (signed by hi s mother exercising power of attorney) dated 3 August 2016. Therein, Appellant specific ally criticized JP’s perfor mance as his trial defense counsel in several respects and stated

, “The sum of all the actions
and the statements above seem to reflect ineffe ctive and insufficient representations by my attorney.”

Appellant’s stepfather, HL, a lawyer who observed and briefly testified atAppellant’s trial, also provided a lengthy memorandum for the convening authority dated 25 July 20 16. Among other complaints, HL extensively criticized JP’s performanc e at Appellant’s trial and specifically accused JP o f providing IAC . In addition, HL ass erted JP “is specifically and well aware that I am totally displeased with his performance, and specifically invited me throug h 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 ineffect ive assistance to Appellant. JL’s memorandum criticized JP’s performance inUnited States v. Gonzalez , No. ACM 39125

18 several respects and repeate dly 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 Au gust 2016, the SJA prepared an a d dendum to the SJAR that advised the conveni ng authority, inter alia , as follows :
[Appellant] alleges legal erro r in the form of ineffective as sistance of counsel. Specifically , [Appellant] alleges his civil ian defense counsel failed to introduce certain ev idence 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 a ddendum did not address a ny pote ntial 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 remaine d un changed. 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 forfei tures ; and waived the mandatory forfeitures for six months for the benefit of Appellant’s

son.
App ellant 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 App ellant 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 IUnited States v. Gonzalez , No. ACM 39125

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 Appell ant of his rights to counsel, including his right to terminate herself or JP at any point. At no point did Appellant express a desi re to terminate her or JP. Capt AH did not recall Appellant expressing dissatisfaction with their performance when she spoke with Appellant after trial. S he 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 dis satisfaction 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 question s 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 def ense 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 ) (quot ing United States v. Cornelious , 41 M .J. 397, 398 (C.A.A.F. 1995)); s ee also United States v. Cavan , 48 M.J. 567, 569 (A.F. Ct. Crim. App. 1998) (SJA has obligation to address apparent conflict of i nterest for defense counsel rep resenting 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 recogni zed that continued representation by allegedly ineffective counsel in the shadow of such aUnited States v. Gonzalez , No. ACM 39125

20 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 auth ority 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 nat ure 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 Amendment 6 and Article 27, UCMJ, 10 U.S.C. § 827, an accused is entitled to effect ive
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. Si milarly, the counsel’s assurance that he is not offended by the allegation of ineffectiveness does not resolve the co nflict. In Carter , the CAAF explained that once a defense counsel becomes aware of an allegation of ineffectiveness,

[d] efense counsel shou ld 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). C ontrary to the Government’s position that it is sufficient to inform Appellant of his right to secure new counsel
and to obtai n Appellant’s agreement to retain the allegedly ineffective counsel, Carter articulates two possible resolutions to the situation, both of whicheliminate 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. C ONST

. amend. VI.United States v. Gonzalez , No. ACM 39125

21 Neither resolution was achieved here. Despite JP’s evident awar eness 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. J P’s memo randum 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 conven ing 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 s howing 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 f acially unreasonable de lay 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 th ere is a facially unreasonable delay, we examine the four fac

tors 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) pr ejudice 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 o f a given factor will not prevent such a finding.” Id. at 13 6 (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 t he 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 le ngth of the delay

— the appellate review of Appellant’s case has exceeded the Moren o standard of 18 months by less thanUnited States v. Gonzalez , No. ACM 39125

22 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 enlarg ements oftime. 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 describedabove. 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 substant ial 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 reaso ns for delay weigh moderately against a finding of a due process violation.

As to the third factor

— Appellant’s asse rtion of his right to timely review

— Appellant has lately asserted his right to timely review. Accordingly, this factor weighs slightly in App ellant’s favor.

Turning to the fourth factor

— prejudice

— we note Moreno identified three types of prejudice arising from post

- trial processing delay: (1) op pressive incarceration; (2) anxiety and concern; and (3) impairment of the appellant’s ability to pres ent a defense at a rehearing. 63 M.J. at 138

– 39. Where, as here, an appellant does not prevail on the substanti ve grounds of his appeal, there is no oppressive incarceration. Id. at 139 (citing Cody v. Henderson , 936 F.2d 715, 720 (2d Cir. 1991)) . Similarl y, where Appellant’s substantive appeal against his conviction fails, his ability to present a defense at a rehearing is not impaired. See i d. at 140

– 41

. Furthermore, we do not discern any “particularized anxiety or concern that is distinguishable from the normal anxiety

e xperienced” by appellants await ing 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

23 C onsidering 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 h ave 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 en u merated in Gay , 74 M.J. at 744

, 7 we conclude it is not.

III. C ONCLUSION
The record of trial is returned to The Judge Advocate General for remand
to the convening authori ty 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 authori ty 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 indifferenc e to the overall post

- trial processing of t his case; (3) whether there is evi dence of harm to the appellant or institutionally caused by the delay; (4) whether the delay has lessened the disciplinary effect of any particula r 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 proce s sing ; and (6) given the passage of time, whether this court can provide meaningful relief in t his particular situation.