UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

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No. ACM S32410

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UNITED STATES

Appellee

v.

Zachary C. GINES

Airman First Class (E-3), U.S. Air Force, Appellant

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Appeal from the United States Air Force Trial Judiciary

Decided 23 March 2017

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Military Judge: Shelly W. Schools.

Approved sentence: Bad-conduct discharge, confinement for 4 months, 

forfeiture of $1,0440.00 pay per month for 4 months, and reduction to 

E-1. Sentence adjudged 15 April 2016 by SpCM convened at Goodfellow Air Force Base, Texas. 

For Appellant: Lieutenant Colonel Anthony D. Ortiz, USAF.

For Appellee: Major J. Ronald Steelman III, USAF; Gerald R. Bruce, 

Esquire.

Before MAYBERRY, SPERANZA, and JOHNSON, Appellate Military 

Judges.

Judge SPERANZA delivered the opinion of the Court, in which Senior 

Judge MAYBERRY and Judge JOHNSON joined. 

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This is an unpublished opinion and, as such, does not serve as 

precedent under AFCCA Rule of Practice and Procedure 18.4.

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SPERANZA, Judge:

A special court-martial composed of a military judge sitting alone found 

Appellant guilty, consistent with his pleas pursuant to a pretrial agreement, 
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of wrongful use and introduction of cocaine, both on divers occasions and in 

violation of Article 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. 

§ 912a. The military judge sentenced Appellant to a bad-conduct discharge, 

confinement for four months, forfeiture of $1,044.00 pay per month for four

months, and reduction to E-1. In accordance with the terms of the pretrial 

agreement, the convening authority deferred Appellant’s reduction in grade 

and forfeitures until action but approved the adjudged sentence.

Now on appeal, Appellant maintains that he is entitled to “meaningful 

sentence relief” pursuant to United States v. Tardif, 57 M.J. 219 (C.A.A.F. 

2002). We disagree and affirm.

I. BACKGROUND

While assigned to his first duty station at the Presidio of Monterey, California, Appellant celebrated Columbus Day in Sacramento, California, by 

buying and using cocaine with other Airmen. After the holiday weekend, Appellant brought the leftover cocaine onto the Presidio and used the drug in 

the dorms with other Airmen. 

Appellant celebrated his next holiday, Thanksgiving, in similar fashion—

by buying and using cocaine with other Airmen. Appellant once again 

brought the leftover cocaine onto the Presidio, where he continued to use it in 

the dorms with other Airmen.

II. DISCUSSION—POST-TRIAL DELAY

Appellant’s case was docketed with us 46 days after the convening authority’s action. According to the Government, this specific delay was caused by 

purported manning shortfalls, personnel leave, a holiday, and case management deficiencies at the installation-level and convening authority legal offices. Appellant seeks sentence relief due to the delay between the convening 

authority’s action and our docketing of his case.

Convicted servicemembers have a due process right to timely review and 

appeal of courts-martial convictions. United States v. Moreno, 63 M.J. 129, 

135 (C.A.A.F. 2006). Accordingly, we review de novo Appellant’s claim that he 

has been denied his due process right to a speedy post-trial review and appeal. Id. 

In Moreno, the Court of Appeals for the Armed Forces (CAAF) established 

a presumption of unreasonable post-trial delay that requires a due process 

review when the convening authority does not take action within 120 days of 

trial, when a record of trial is not docketed with us within 30 days of the convening authority’s action, and when we do not render a decision within 18 

months of the case’s docketing. Id. at 142. 
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If there is a Moreno-based presumption of unreasonable delay or an otherwise facially-unreasonable delay, we examine the claim under the four factors set forth in Barker v. Wingo, 407 U.S. 514, 530 (1972): “(1) the length of 

the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the 

right to timely review and appeal; and (4) prejudice.” Moreno, 63 M.J. at 135.

Moreno identified three types of prejudice arising from post-trial processing 

delay: (1) oppressive incarceration; (2) anxiety and concern; and (3) impairment of ability to present a defense at a rehearing. Id. at 138–39 (citations 

omitted). 

We analyze each factor and make a determination as to whether that factor favors the Government or Appellant. Id. at 136. Then, we balance our 

analysis of the factors to determine whether a due process violation occurred. 

Id.; see also Barker, 407 U.S. at 533 (“[c]ourts must still engage in a difficult 

and sensitive balancing process.”). “No single factor is required for finding a 

due process violation and the absence of a given factor will not prevent such a 

finding.” Moreno, 63 M.J. at 136. 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).

The period of 46 days between action and docketing in this case is presumptively unreasonable, exceeding the standard by 16 days, and triggers a 

full due process review under Moreno. However, Appellant has not claimed

any legally cognizable prejudice from the delay, and we find none. Balancing 

the remaining factors, even considering the inadequate reasons for the delay, 

we do not find the delay so egregious that tolerating it would adversely affect 

the public’s perception of the fairness and integrity of the military justice system. See Toohey, 63 M.J. at 362. Therefore, we find no due process violation. 

Although we find no due process violation in Appellant’s case, we nonetheless consider whether Article 66(c), UCMJ, relief pursuant to Tardif is appropriate. 57 M.J. at 224. In resolving Appellant’s request for Tardif relief, 

we are guided by factors enumerated in United States v. Gay, 74 M.J. 736, 

744 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016), with no 

single factor being dispositive.* We are also mindful of the CAAF’s admoni-

 

* 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) Keeping in mind that our goal under Tardif is not to analyze 

for prejudice, whether there is nonetheless some evidence of harm (either to the ap-

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tion that “delay in the administrative handling and forwarding of the record 

of trial and related documents to an appellate court is the least defensible of 

all [post-trial delays] and worthy of the least patience.” United States v. Dunbar, 31 M.J. 70, 73 (C.M.A. 1990) (internal hyphens omitted). 

We find the Government’s explanations for the 46-day delay between action and docketing unpersuasive. However, after balancing the remaining 

factors, we conclude no extraordinary exercise of our Article 66(c) authority is 

warranted here. Considered as a whole, Appellant’s case has not been subjected to excessive delay, and we discern no particular harm to Appellant. 

The delay has not lessened the disciplinary effect of Appellant’s sentence. The 

delay has not adversely affected our ability to review Appellant’s case or 

grant him relief, if warranted. The circumstances of Appellant’s case do not 

move us to reduce an otherwise appropriate sentence imposed by the military 

judge and approved by the convening authority. See also United States v. 

Ruiz, ACM 38752, 2016 CCA LEXIS 470 (A.F. Ct. Crim. App. 9 Aug. 2016) 

(no relief for 57 days between action and docketing); United States v. Stephens, ACM 38531, 2015 CCA LEXIS 146 (A.F. Ct. Crim. App. 16 Apr. 2015) 

(no relief for 49 days between action and docketing); United States v. Spencer, 

ACM S32198, 2015 CCA LEXIS 38 (A.F. Ct. Crim. App. 5 Feb. 2015) (no relief for 46 days between action and docketing). 

III. CONCLUSION

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

error materially prejudicial to the substantial rights of Appellant occurred. 

Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). 

 

pellant or institutionally) caused by the delay; (4) Whether the delay has lessened the 

disciplinary effect of any particular aspect of the sentence, and is relief consistent 

with the dual goals of justice and good order and discipline; (5) Whether there is any 

evidence of institutional neglect concerning timely post-trial processing, either across 

the service or at a particular installation; and (6) Given the passage of time, whether 

this court can provide meaningful relief in this particular situation. United States v. 

Gay, 74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016).
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Accordingly, the findings and sentence are AFFIRMED.

FOR THE COURT

KURT J. BRUBAKER

Clerk of the Court