UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Senior Airman JONATHAN W. JAMES

United States Air Force

ACM S32213

06 April 2015

Sentence adjudged 7 January 2014 by SPCM convened at Spangdahlem 

Air Base, Germany. Military Judge: Dawn R. Eflein (sitting alone).

Approved Sentence: Bad-conduct discharge, confinement for 6 months, 

and reduction to E-1.

Appellate Counsel for the Appellant: Captain Michael A. Schrama.

Appellate Counsel for the United States: Lieutenant Colonel John E. Owen;

Major Daniel J. Breen; Captain Richard J. Schrider; and Gerald R. Bruce, 

Esquire.

Before

MITCHELL, WEBER, and CONTOVEROS

Appellate Military Judges

OPINION OF THE COURT

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent 

under AFCCA Rule of Practice and Procedure 18.4.

WEBER, Judge:

A military judge sitting as a special court-martial convicted the appellant, pursuant 

to his pleas, of one specification of each of the following: wrongfully using marijuana, 

wrongfully using 3, 4-Methylenedioxymethamphetamine (ecstasy), assault consummated 

by a battery, drunk and disorderly conduct, obstruction of justice, and communicating a 

threat. The charges and specifications represent violation of Articles 112a, 128, and 134, 

UCMJ, 10 U.S.C. §§ 912a, 928, 934. The military judge sentenced the appellant to a 

bad-conduct discharge, confinement for 7 months, and reduction to E-1. Pursuant to a 
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pretrial agreement (PTA), the convening authority reduced confinement to 6 months but 

otherwise approved the sentence as adjudged.

The appellant personally asserts two assignments of error pursuant to 

United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). First, he alleges the 

specifications for obstruction of justice and communicating a threat represent 

multiplicious charging or an unreasonable multiplication of charges. Second, he requests 

relief under United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002), because the 

Government violated the 30-day standard to forward the record of trial to this court. We 

find no error and affirm.

Background

The appellant used marijuana and ecstasy during a group outing to Amsterdam in 

early 2013. The Air Force Office of Special Investigations later learned of this 

misconduct, and the appellant was placed on restricted duty pending a probable 

court-martial. While this matter was pending and after a night of drinking excessive 

amounts of alcohol, the appellant and another Airman implicated in the investigation 

confronted a third Airman, accusing him of informing investigators about their earlier 

drug use. As this situation escalated, another Airman intervened. The appellant accused 

this other Airman of also being an informant, grabbed him by the throat, and pushed him 

into a wall.

Charges for these two incidents were preferred against the appellant. As the 

appellant’s court-martial approached, and after another night of excessive alcohol 

consumption, the appellant approached another Airman, a friend who had also been 

implicated in the investigation about drug use in Amsterdam. The appellant suspected 

that the friend had secured a discharge in lieu of a court-martial by agreeing to testify 

against the appellant. The appellant threatened to kill the friend or have civilian contacts 

“come after” the friend’s family members. The appellant pressured the friend to disclose 

his family members’ contact information, and when the friend refused, the appellant 

stated that he could find that information on the Internet and could have a “hit” put out on 

the friend’s family members. The friend later informed his first sergeant, and an 

additional charge with specifications of obstructing justice and communicating a threat 

were preferred and referred.

Multiplicity/Unreasonable Multiplication of Charges

The appellant alleges that the specifications of obstruction of justice and 

communicating a threat are multiplicious, or alternatively they represent an unreasonable 

multiplication of charges. At trial, the appellant did not move to dismiss either of the 

specifications on grounds of multiplicity or unreasonable multiplication of charges. 

Instead, as part of his PTA, he contracted to waive all waivable motions. The military 
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judge explored this provision with the appellant, learned that this provision originated 

with the defense in order to secure a more favorable PTA, and determined that the 

appellant had knowingly and voluntarily agreed to this provision. Trial defense counsel 

stated the defense had considered raising an unlawful command influence motion but did 

not mention that he had considered raising a multiplicity or unreasonable multiplication 

of charges motion. Nonetheless, in sentencing, the military judge asked the parties if 

these two specifications should be considered as one matter for sentencing. Trial defense 

counsel urged her to do so; trial counsel opposed this. After the military judge 

announced the sentence, she stated as follows:

I also meant to state that the court did consider the 

specifications in the Additional Charge to be one for the 

principles—for the purposes of sentencing, not because they 

were an unreasonable multiplication of charges and not 

because they were multiplicious, but because they arose out 

of the exact same conversation. And technically the 

government could have flipped the language basically and 

charged the other offense the other way, so I did consider 

them as one offense for sentencing purposes.

In United States v. Gladue, 67 M.J. 311, 314 (C.A.A.F. 2009), our superior court

held that a “waive all waivable motions” provision waived, rather than forfeited, a claim

of multiplicity on appeal and therefore the multiplicity claim was extinguished and could

not be raised on appeal. The court held this issue was waived even though defense

counsel did not specifically mention multiplicity as a motion that was initially considered

before the waiver provision was agreed upon. Id. The court held multiplicity was

waived because the pretrial agreement required the appellant to waive “all” waivable

motions, the military judge conducted a thorough inquiry to ensure the appellant

understood the effect of this provision, and the appellant explicitly indicated his

understanding that he was waiving the right to raise any waivable motion. Id. The court

also stated the same position would result for claims of unreasonable multiplication of

charges raised on appeal. Id.

Consistent with Gladue, we find the appellant waived his right to raise the issues 

of multiplicity and unreasonable multiplication of charges on appeal. The military judge 

sufficiently inquired into the “waive all waivable motions” provision, and the appellant 

affirmatively voiced his understanding that this provision waived his right to raise any 

waivable motion on appeal. In addition, in sentencing, the military judge raised the 

related issue of whether the two specifications should be merged for sentencing. Trial 

defense counsel successfully argued for the military judge to do so but did not request 
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any additional relief regarding the findings. The appellant has waived this issue, and 

therefore he is not entitled to relief on this issue.1

Post-Trial Processing Delay

In United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006), our superior court 

established guidelines that trigger a presumption of unreasonable delay, including where 

the record of trial is not docketed with the service court within 30 days of the convening 

authority’s action. In addition to any due process concerns caused by unreasonable 

post-trial delay, Article 66(c), UCMJ, 10 U.S.C. § 866(c), empowers the service appellate 

courts to grant sentence relief for excessive post-trial delay without a showing of actual 

prejudice. Tardif, 57 M.J. at 224.

The appellant’s court-martial concluded on 7 January 2014. The convening 

authority took action on 6 February 2014, well within the 120-day standard established 

by Moreno for this stage. See, 63 M.J. at 142. The appellant’s case was docketed with 

this court on 10 March 2014, 32 days after action. The appellant does not allege that he 

suffered any prejudice as a result of this delay in docketing the record of trial with this 

court, and we find none. Rather, the appellant asserts Tardif relief is warranted due to 

unreasonable post-trial delay. As “modest relief” to address this delay, he asks us to set 

aside his bad-conduct discharge.

We are cognizant of our broad authority to grant relief for post-trial delay even in 

the absence of a showing of prejudice, but we decline to exercise that authority in this 

case. Utilizing the factors outlined by our Navy and Marine Corps colleagues in 

United States v. Brown, 62 M.J. 602, 606–07 (N.M. Ct. Crim. App. 2005), we find 

granting sentencing relief is not appropriate. In particular, especially given the overall 

timeliness of post-trial processing at the installation level, we see no evidence that the 

short delay in this one stage of the case demonstrates evidence of bad faith or gross 

negligence.2

 

1 Even if we were to find that the appellant merely forfeited this issue rather than waived it, the appellant would not 

prevail on the merits of this issue. Our superior court has held that separate specifications for obstructing justice and 

communicating a threat are not multiplicious. United States v. Oatney, 45 M.J. 185 (C.A.A.F. 1996). In addition, 

applying the factors set forth in United States v. Quiroz, 55 M.J. 334 (C.A.A.F. 2001), we would not find that the 

two specifications represent an unreasonable multiplication of charges, particularly when they did not increase the 

maximum possible sentence in this special court-martial and the military judge treated them as one for sentencing 

purposes.

2 The appellant’s brief states that “114 days passed from the convening authority’s action until the record was 

docketed with this Court, more than triple the Moreno standard.” As noted elsewhere in the assignment of errors, 

only 32 days actually elapsed between action and docketing. The statement concerning the purported 114-day 

period appears to be a cut-and-paste error utilizing a brief from United States v. Sutton, ACM S32143 (A.F. Ct. 

Crim. App. 21 August 2014) (unpub. op.), another case written by the same appellate defense counsel. We advise 

all counsel to lend more attention to their briefs.
5 ACM S32213

Conclusion

The approved findings and the sentence are correct in law and fact, and no error 

materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a) 

and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved findings and 

the sentence are AFFIRMED.

FOR THE COURT

STEVEN LUCAS

Clerk of the Court