UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Airman First Class ALPHONSO K. DIXON

United States Air Force

ACM S32061 (rem )

08 July 2015

Sentence adjudged 3 April 2012 by SP CM convened at Peterson Air Force
Base, Colorado . Mili tary Judge: Scott E. Harding (sitting alone).

Approved S entence: Bad

- conduct discharge, confinement for 165 days

, forfeitures of $994.00 pay per month for 5 months, and reduction to E

- 1

.

Appellate Counsel for the Appellant: Major Christopher D. James

.

Appellate Counsel for the United States: Colonel Don M. Christensen ; Lieutenant Colonel Jennifer A. Porter; Lieutenant Colonel C. Taylor Smith;

and Gerald R. Bruce, Esquire

.

Before

MITCHELL

, WEBER

, 1 and CONTOVEROS Appellate Military Judges

OPINION OF THE COURT

UPON REMAND

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent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

.

MITCHELL, Senior Judge:

A military judge sitting as a special court

- martial convicted t he appellant , in accordance with his pleas, of two specifications of being absen t without leave and one specification each of wrongful use of marijuana and cocaine on divers occasions in

1 Judge Weber participated in this decision prior to his transfer from this c ourt.ACM S32061 2 violation of Article s 86 and 1 12a , UCMJ, 10 U.S.C. § § 886, 912a

. Th e adjudged and approved sentence consisted of a bad

- conduct discharge , confinement for 165 days, forfeiture of $994 pay per month for 5 months

, and reduction to the grade of E

- 1

.

On appeal, the appellant assert s that the military judge erred when he foun d that the 117 days the appellant spent in pretrial confinement did not violate his right to speedy

trial under Article 10, UCMJ , 10 U.S.C. § 810

. In a supplemental assignment of error,

t he appellant a sserts that the time between his court

- martial in 2012 and this decision in

2015 amounts to unreasonable post

- trial delay warranting relief. We disagree on both issues and affirm the findings and sentence.

Background

On 5 October 2011, the appellant failed to show at his squadron at the normal duty

time o f 0715. Supervisors from his squadron found him at an off

- base residence which had an overwhelming marijuana miasma. Based on probable cause, a urine sample was obtained that day. On 27 October 2011, the urinalysis result returned positive for both

mari juana and cocaine. That same day a second urine sample was obtained which also

return ed positive for marijuana and cocaine.

On 9 November 2011, the appellant informed his supervisor that he would be late to work as he was at the Denver airport and his ca r had been towed. The appellant did

not return to his unit on Peterson Air Force B ase (AFB) , Colorado

, until a month later on 9 December 2011. When he returned, the appellant smelled of marijuana. He consented to provide another urine sample and remarke d, “ This will probably come back positive. ” He was correct and the sample returned positive for marijuana.

The appellant was ordered into pretrial confinement on 9 December 2011 and remained there until his trial on 3 April 2012. He was in pretrial con finement for 117 days.

Procedural History

On 25 June 2013, the Secretary of Defense appoint ed a civilian employee of the Department of the Air Force , who was also a retired Air Force officer and a former active duty appellate military judge , to serve a s an appellate military judge on the Air For ce Court of Criminal Appeals. When the appellant’s case was initially before us, the appellant argued that the military judge erred in his determination that the pretrial confinement did not violate Article 10, UCMJ. We disagreed and issued a decision in which we affirmed the findings and sentence. United States v. Dixon

, ACM S32061 (A.F. Ct. Crim. App. 4 September 2013) (unpub. op.). The civilian employee was a member of the panel that decided the appellant’s case.ACM S32061 3 On 15 April 2014, our superior court issued its decision in United States v.

Janssen , 73 M.J. 221, 225 (C.A.A.F. 2014), holding that the Secretary of Defense did not have the legislative authority to appoint civilian employees as appellate militar y judges

and that the earlier appointment was “invalid and of no effect.” On 11 March 2015, our superior court concluded the improper appointment of the civilian employee by the Secretary of Defense was not waived by an earlier failure to object. United States v.

Jones , 74 M.J. 95 (C.A.A.F. 2015). Pursuant to Janssen and Jones , our superior court

reversed our decision in this case and remanded it to us for a new review under Article 66, UCMJ

, 10 U.S.C. § 866, before a properly constituted panel

. United States v. Dixon

,

___ M.J.

___ No. 14

- 0157/AF ( D aily J ournal 30 March 2015). In addition to reviewing the prior pleadings, we issued an order au thorizing the appellant to file a supplemental briefing.

In light of this ruling by our superior court, we have reviewed the appellant’s case. Our review includes the appellant’s previous filings and the previous opinion issued by this court, as well as a supplemental assignment of errors in which the appellant asserts he is entitled to relief due to excessive pos t

- trial processing delays. Finding no error, we affirm the findings and the sentence.

Article 10 Speedy Trial

At trial

, the appellant filed a m otion to d ismiss the charges and specifications for a violation of Article 10, UCMJ. 2 The military judge cons idered the evidence presented by both trial and defense counsel. After making findings of fact, the military judge denied

the defense motion.

“Article 10, UCMJ, ensures a servicemember ’ s right to a speedy trial by providing that upon ‘arrest or confineme nt prior to trial, immediate steps shall be taken to inform him of the specific wrong of which he is accused and to try him or to dismiss the charges

and release him.’” United States v. Cossio , 64 M.J. 254, 255 (C.A.A.F. 2007) ( quoting Article 10, UCMJ ). Violation of an appellant’s speedy trial rights under Article 10,

UCMJ

, is a question of law which we review de novo; however

, we are bound by the facts found by the military judge unless they are clearly erroneous. Id

. at 256 ; United

States v. Wilson , 7 2 M.J. 347, 350 (C.A.A

. F. 2013)

.

Findings of Fact

The military judge’s findings of fact were not clearly erroneous. The appellant was ordered into pretrial confinement on 9 December 2011. A pretrial confinement hearing was held on 12 December 2011 . Th e pretrial confinement review officer

2 The appellant pled guilty pursuant to a pretrial agreement (PTA) . One of the provisions of the PTA required the appellant “to waive all motions.” Both trial counsel and the trial defense counsel agreed that this provision did not apply to the m otion to d ismiss for violation of Article 10, UCMJ , 10 U.S.C. § 810.ACM S32061 4 finalized a written report on 14 December 2011

, which recommended continued pretrial confinement for the appellant.

On Friday, 6 January 2012, the g overnment received notification of the positive

result of the urine s ample obtained from the appellant on 9 December 2011. On Tuesday, 10 January 2012, trial counsel requested the urine sample bottle and complete drug testing report from the Air Force Drug Testing Laboratory (AFDTL). These items were

received at Peterson AFB on 30 January 2012.

Charges were preferred on 18 January 2012 with a recommendation that the charges be referred to a general court

- martial (GCM) . On 23 January 2012, an investigation in accordance with Article 32 , UCMJ, 10 U.S.C. § 832, was held. O n 30 January 2012, the Article 32 R eport was completed and recommended trial by GCM

.

On 28 January 2012, trial defense counsel made a speedy trial demand to the prosecution. On 7 February 2012, the prosecution contacted AFDTL to arrange for an expert wi tness. The next available date for an expert was 3 April 2012. On 9 February 2012, the General Court

- Martial Convening Authority decided not to refer the charges to

a GCM and returned them to the Special Court

- Martial Convening Authority (SPCMCA)

. The S PCMCA referred the charges and specifications to a special court

- martial on 14 February 2012 . Those charges were served on the appellant the next day.

On 16 February 2012, a docketing conference was held ; trial defense counsel

indicated his next availa ble date was 27 February 2012. Trial counsel explained that due to the availability of an expert, the earliest they would be ready for trial was 3 April 2012. The trial was docketed for 3 April 2012.

The record of trial also contains the following info rmation: The appellant experienced “some anxiety and stress” due to the pretrial confinement. However, there was no evidence that his preparation for trial, defense evidence, trial strategy, or ability to present witnesses was compromised. Trial defense counsel requested the appointment of an expert consultant in forensic toxicology on 26 January 2012. The c onvening a uthority approved the request on 29 February 2012. By 23 March 2012, the appellant had consulted with his appointed expert and as part of the pretrial agreement offered to waive any future funding of that expert. 3

Article 10 Analysis

The right to a speedy trial is a fundamental constitutional right under Article 10

, UCMJ, imposing on the military prosecution a more stringent standard th an that required

3 Trial defense counsel stated his case

- ready date was two days prior to the appointment of the expert consultant. Either he was ready to proceed to trial without an expert consulta nt or intended to file a motion to compel.ACM S32061 5 by the Sixth Amendment

. 4 Wilson , 72 M.J. at 350

– 51; United States v. Kossman

, 38 M.J. 258, 259 (C.M.A. 1993)

.

“The standard of diligence under which we review claims of a denial of speedy

trial under Article 10 [, UCMJ,] ‘ is not consta nt motion, but reasonable diligence i n bringing the charges to trial

. ’” United States v. Mizgala , 61 M.J. 122, 127 (C.A.A.F. 2005) ( citing United States v. Tibbs , 35 C.M.R. 322, 325 (C.M.A. 1965 ) ). “Short periods of inactivity are not fatal to a n otherwi se active prosecution. ” Id

. “ O ur framework to determine whether the Government proceeded with reasonable diligence includes balancing the following four factors : (1) the length of the delay; (2) the reasons for the delay; (3) whether the appellant made a demand for a speedy trial; and (4) prejudice to the appellant.” Wilson , 72 M.J. at 351 ( quoting Mizgala , 61 M.J. at 12 9 ) ( brackets and internal quotations omitted)

. The first factor is to some extent a triggering

mechanism

. Barker v

. Wingo , 407 U.S. 51 4, 530 (1972) ; s ee also Cossio , 64 M.J. at 25 7

.

W e find that 117 days of continuous pretrial confinement after a speedy trial request was made by the appellant is sufficient to trigger the full Barker analysis and

therefore analyze the remaining three fac tors. T here is only one period of significant inactivity which warrants special focus : the time from the appellant’s putative trial

- ready date of 27 February 2012 to the g overnment’s case

- ready date of 3 April 2012. This short delay due to the un availab ility of a forensic toxicologist from AFDTL was

reasonable. See Co s sio , 64 M.J. at 257

. Although the appellant argues the g overnment could have sought out the services of an independent forensic toxicologist, given the

issues of testimonial hearsay 5 it i s reasonable for the g overnment to wait for an expert from the facility that performed the drug test s as long as the delay is not excessive. To

e valuat e the prejudice factor, our superior court explained, “ we are concerned not with the normal anxiety and concern experienced by an individual in pretrial confinement, but rather with some degree of particularized anxiety and concern greater than [that].”

Wilson , 72 M.J. at 354

. T he military judge found that the appellant experienced only that

normal level of anxiety incident to confinement. We agree and find there was no prejudice.

We weigh all the factors collectively before deciding whether an appellant’s right to a speedy trial has been violated. Id

. at 254

– 55. Based on the findings of fact and after

our de novo review of the Article 10 , UCMJ, factors, we conclude that the appellant’s right to a speedy trial was not violated.

4 U.S. C ONST

. amend

. VI.

5 See United States v. Tearman , 72 M.J. 54 (C

. A

. A

. F

. 2013) ; United States v. Sweeney , 70 M.J. 296 (C

. A

. A

. F

. 2011) ; United States v. Blazier , 69 M.J. 218 (C

. A

. A

. F

. 2010)

.ACM S32061 6 Appellate Review Time Standards

The appellant argues, citing United States v. Moreno , 63 M.J. 129, 135 (C.A.A.F. 2006), t hat the unreasonable post

- trial delay from the date the case was first

docketed with this court in June 2012 until this opinion warrants relief. The appellant

further cites United States v. Tardif , 57 M.J. 219 (C.A.A.F. 2002), noting this court’s responsi bility to affirm only those findings and sentence that should be approved.

We review de novo whether an appellant has been denied the due process right to speedy post

- trial review and whether any constitutional error is harmless beyond a

reasonable doubt. United States v. Allison , 63 M.J. 365, 370 (C.A.A.F. 2006). A presumption of unreasonable delay arises when appellate review is not completed and a decision is not rendered within 18 months of docketing the case before this court.

Moreno , 63 M.J. at 14 2. The Moreno standards continue to apply as a case continues through the appellate process; however, the Moreno standard is not violated when each period of time used for the resolution of legal issues between this court and our superior

court is within the 18

- month standard. United States v. Mackie , 72 M.J. 135, 135

– 36 (C.A.A.F. 2013); see also United States v. Roach , 69 M.J. 17, 22 (C.A.A.F. 2010). The time from the initial docketing in June 2012 until our initial decision in September 2013

did not ex ceed 18 months. The time between our superior court’s action to return the

record of trial to our c ourt for our action and this decision has not exceeded 18 months; therefore, the Moreno presumption of unreasonable delay is not triggered. See Mackie

, 72 M.J. at 136. We reject the appellant’s argument that

, because the Secretary of Defense’s appointment of the civilian employee was invalid and of no effect, the Moreno clock was not tolled by our first decision. 6

Additionally, Article 66(c), UCMJ, 10 U .S.C. § 866(c), empowers appellate courts to grant sentence relief for excessive post

- trial delay without the showing of actual prejudice required by Article 59(a), UCMJ, 10 U.S.C. § 859(a). Tardif , 57 M.J. at 224;

6 Alternatively, i f the standards set forth in United States v. Moreno

, 63 M.J. 129, 135 (C.A.A.F. 2006)

, are violated, the delay is presumptively unreasonable and triggers an analysis of the four factors elucidated in Barker v. Wingo

, 407 U.S. 514 (1972), and Moreno

. See United States v. Arriaga

, 70 M.J. 51, 55 (C.A.A.F. 2011). Those factors are “(1) the l ength of the delay; (2) the reasons for the delay; (3) whether the appellant made a demand for a speedy trial; and (4) prejudice to the appellant.” United States v. Mizgala

, 61 M.J. 122, 129 (C.A.A.F. 2005); see also

Barker

, 4 07 U.S. at 530; United States v. Morita , 73 M.J. 548, 567 (A.F. Ct. Crim. App. 201 4 ). Here the appellant concedes he did not make a demand for speedy appellate processing until his supplement al pleading on 4 May 2015. The appellant has also not made any showing of prejudice but asks this c ourt to infer it. When there is no showing of prejudice under the fourth factor, “we will find a due process violation only when, in balancing the other three factors, the delay is so egregious that tolerating it would 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). Having considered the totality of the circumstances and the entire record, when we balance the other three factors, we fi nd the post

- trial delay in this case to not be so egregious as to adversely affect the public’s perception of the fairness and integrity of the military justice system. We are convinced th at even if there is error , it is harmless beyond a

reasonable doubt

.ACM S32061 7 see also United States v. Harvey , 64 M.J . 13, 24 (C.A.A.F. 2006). In United States v. Gay

,

__ M.J.

__ , ACM 38525 (A.F. Ct. Crim. App. 12 June 2015), we identified a list of factors to consider in evaluating whether Article 66(c), UCMJ, relief should be granted for post

- trial delay. Those facto rs include how long the delay exceeded appellate review standards, the reasons for the delay, whether the government acted with bad faith or gross indifference, evidence of institutional neglect, harm to the appellant or to the institution,

whether relief is consistent with the goals of both justice and good order and discipline,

and whether this court can provide any meaningful relief. Id. , slip op. at 11. No single factor is dispositive and we may consider other factors as appropriate. Id. , slip op. at 12. After considering the relevant factors in this case, we determine that no relief is

warranted. As addressed supra , no period of appellate review exceeded the Moreno

standards . Even analyzing the entire period from the time the case was first docket ed until today, we find there was no bad faith or gross negligence in the post

- trial processing. The reason for the delay after our initial decision was to allow this court and our superior court to fully consider a constitutional issue of first impressi on about whether the Secretary of Defense has the authority under the Appointments Clause 7 to appoint civilian employees to the service courts of criminal appeals. See Janssen

, 73 M.J. at 221. While the answer may seem clear now with the advantage of sub sequent decisions, we note that the appellant’s initial petition to our superior court did not specify the appointment as an error. We find no evidence of harm to the integrity of the military justice system by allowing the full appellate review of this no vel issue. The appellant has not articulated any harm. At most the appellant asks us to infer increased anxiety ; we decline to do so. Furthermore, the impact of any delay was mitigated when we specifically allowed the appellant to file a supplemental ass ignment of error. We have the authority to tailor an appropriate remedy without giving the appellant a windfall. See Tardif , 57 M.J. at 225. Based on our review of the entire record, we conclude that sentence relief under Article 66, UCMJ, is not warran ted.

Conclusion

The approved findings and sentence are correct in law and fact, and no error 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 finding s and the se ntence are
AFFIRMED

.

FOR THE COURT

STEVEN LUCAS

Clerk of the Court

7 U.S. C ONST . art. II, § 2, cl. 2.