UNITED STATES NAVY-MARINE CORPS 

COURT OF CRIMINAL APPEALS

WASHINGTON, D.C.

Before

THE COURT EN BANC1 

UNITED STATES OF AMERICA

v.

JASON T. TUCKER

STAFF SERGEANT (E-6), U.S. MARINE CORPS

NMCCA 201400135

GENERAL COURT-MARTIAL

Sentence Adjudged: 15 March 2013.

Military Judge: Col G.W. Riggs, USMC.

Convening Authority: Commanding General, 2d Marine 

Division, Camp Lejeune, NC.

Staff Judge Advocate's Recommendation: Maj J.N. Nelson, 

USMC.

For Appellant: LT Jessica Ford, JAGC, USN; LT Jacqueline 

Leonard, JAGC, USN.

For Appellee: LT James Belforti, JAGC, USN.

25 August 2015

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OPINION OF THE COURT 

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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS 

PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

FISCHER, Senior Judge: 

A general court-martial consisting of officer and enlisted 

members convicted the appellant, contrary to his pleas, of five 

specifications of selling military property of a value greater 

than $500.00 and five specifications of stealing military 

property of a value greater than $500.00 in violation of 

 

1 Judge KING and Judge PALMER did not participate in the decision of this 

case.
2

Articles 108 and 121, Uniform Code of Military Justice, 10 

U.S.C. §§ 908 and 921. The members sentenced the appellant to 

reduction to pay grade E-1, a $7,900.00 fine, confinement for 

twelve months (if the fine was unpaid), a reprimand, and a badconduct discharge. In his action the convening authority (CA) 

excepted the number “4” and substituted the number “2” in front 

of the words “Enhanced Small Arms Protective Inserts” (E-SAPI 

plates) in Specification 4 of Charge II.2

 As a matter of 

corrective action and clemency, the CA approved only so much of 

the sentence as provided for a bad-conduct discharge, a fine of 

$5,000.00, and confinement in excess of eight months if the fine 

was unpaid.3

 

The appellant raises nine assignments of error (AOE) and we 

specified an additional AOE.4 After reviewing the record of 

 

2 See footnote 15. 

3 The appellant paid the fine and, thus, served no confinement.

4 The appellant raises the following AOEs:

I. Is the evidence factually and legally sufficient to sustain the 

appellant’s convictions?

II. Was it an abuse of discretion to find the military judge was not 

disqualified due to an appearance of bias at trial?

III. Did the military judge err in admitting Prosecution Exhibits 1 through 

36 into evidence?

IV. Was it reversible error for the military judge to permit the trial 

counsel to cross-examine defense character witnesses with questions about the 

charges the appellant was facing?

V. Did the military judge plainly err in allowing a witness to provide 

hearsay testimony in the form of an inquiry into an unknown database?

VI. Should we remand for a sentence rehearing when the CA disapproved 

findings that the appellant stole E-SAPI plates issued to Cpl F and Cpl F was 

the lone government witness in presentencing?

VII. Should the cumulative error doctrine apply to this case?

VIII. Did the Staff Judge Advocate (SJA) err in failing to advise the CA on 

a duty to reassess the appellant’s sentence and in failing to serve a new 

matter on the trial defense counsel?

IX. Did the CA violate the appellant’s right to a speedy post-trial review 

when the CA’s action was completed 212 days after the trial was completed?
3

trial, the pleadings of the parties and their responses to the 

specified issue, we find partial merit in the appellant’s first 

AOE contesting the factual sufficiency of his larceny 

convictions. After taking corrective action in our decretal 

paragraph and reassessing the sentence, we conclude that the 

remaining findings and the reassessed sentence are correct in 

law and fact and that no error materially prejudicial to the 

substantial rights of the appellant remains. Arts. 59(a) and 

66(c), UCMJ.

Background

From October 2010 through March 2012, the Naval Criminal 

Investigative Service’s (NCIS) Special Operations Unit conducted 

an undercover operation, referred to as “Operation Sweet Tea.” 

The objective of this operation was “to slow down the theft and 

sale of military property, specifically Marine Corps property 

coming off of Camp Lejeune,”5 and address “serious problems with 

the accountability and inventory of items that were issued by 

the Marine Corps.”6 NCIS agents went undercover posing as 

potential buyers for military-type property presumably stolen 

from the Marine Corps. These transactions often began with a 

seller posting an online advertisement for military-type 

property and an NCIS agent responding to the advertisement. The 

agent would then attempt to set up a meeting with the seller to 

make a controlled purchase of the items offered for sale.

The first transaction involving the appellant was arranged 

after the appellant placed an advertisement for such items on a 

local internet auction site. A total of five such transactions 

occurred on 29 December 2010, 5 January 2011, 14 January 2011, 

10 February 2011 and 1 April 2011. NCIS purchased the following 

for a total of $7,900.00: 17 E-SAPI plates of varying sizes; 1 

Modular Tactical Vest (MTV); 3 plate carriers; 2 pairs of Night 

Vision Goggles (NVGs); 1 Surefire flashlight kit and 1 Surefire 

 

Specified Issue: Whether the evidence adduced at trial supports a conviction 

for each of the five larceny specifications notwithstanding the Government 

alleging that each larceny was committed “on an unknown date?”

We address AOEs I, II and IX and find the remaining AOEs to be without merit. 

United States v. Clifton, 35 M.J. 79, 81-82 (C.M.A. 1992). The specified 

issue is mooted by our remedial action.

 5 Record at 131.

6 Id. at 174.
4

flashlight.7 At least 16 of the original 25 items bore at least 

one of the following identifying marks: legible serial numbers; 

legible National Stock Numbers (NSN)8; or a contract number.9 

At trial, the Government’s evidence centered on the 

testimony of NCIS Special Agent (SA) D and two Marines who had 

been issued three of the traceable, serialized E-SAPI plates 

sold to NCIS on 14 January 2011, along with the testimony of 

Defense Logistics Agency (DLA) Supervisory Special Agent (SSA) 

G. Additionally, the Government introduced video recordings of 

the controlled purchases, the final four of which contained 

audio. 

SA D testified that two of the three E-SAPI plates with 

identifiable serial numbers were traced back to a Marine from 

the appellant’s unit, 2d Light Armored Reconnaissance Battalion 

(2d LAR), Corporal (Cpl) R.10 Cpl R testified that his E-SAPI 

plates11 went missing “somewhere around February 2010 to February 

2011” from the “NCO office.”12 He could not specifically recall 

in what month this occurred. Cpl R testified that he completed 

a missing gear statement shortly after the property went 

missing, however this document was not introduced at trial. 

The other serialized E-SAPI plate was traced back to 

another 2d LAR Marine, Cpl F.13 Cpl F testified that his gear 

went missing from his wall locker when it was broken into around 

9 February 2011.14 Yet, the evidence suggests that Cpl F’s E-

 

7 We note that NCIS purchased a Surefire flashlight, but the appellant is 

charged with selling a “Surefire flashlight kit” under Charge I, 

Specification 4. 

8 An NSN is used to identify a type or particular brand of item purchased by 

the U.S. Government and maintained in the Government’s supply chain. 

9 Some of the photos in the record are of such poor quality that identifying 

information could not be discerned. With other items, the serial number was

unreadable because it had had worn off or was marked up in such a way as to 

obscure the number.

10 PE 13, 16; Record at 170-71.

11 Cpl R testified that other items besides the E-SAPI plates also went 

missing, to include “my flak and Kevlar and all the magazine pouches, grenade 

pouch, IFAC, dump pouch.” Record at 240.

12 Id.

13 PE 15; PE 38; Record at 171. 

14 Record at 251; PE 38.
5

SAPI plate was among the items sold to NCIS on 14 January 2011 –

one month prior to when Cpl F testified the item was taken from 

his locker.15

While none of the remaining items charged were directly 

linked to the U.S. military or a U.S. service member, the 

prosecution offered the testimony of a SSA G and a printout from 

WebFLIS16, a DLA database, to prove the items recovered with an 

NSN number were “military property” because such items were 

maintained as “property of the Department of Defense” (DoD) and 

under “Government control.”17

SSA G further testified that the same recovered items were 

assigned a Code D designation which requires that the item be 

demilitarized prior to disposal.18 According to SSA G, this 

means that such items “[b]y regulation [are] forbidden from 

leaving government control intact and usable.”19 On crossexamination however, SSA G admitted that NSN-linked items have 

left Government control through legitimate transfer mechanisms 

and sometimes for unexplained reasons.20

During the course of the transactions, the appellant made 

multiple comments to the undercover agents indicating that he 

obtained some of the equipment he was selling from sources 

within the Marine Corps. 

The appellant testified in his own defense at trial and 

maintained that he acquired all of the items he sold through an 

online resale site, at local flea markets, or from other 

 

15 PE 15. In a post-trial claim of legal error, the appellant’s trial defense 

counsel argued impossibility as it related to the appellant’s alleged theft 

of Cpl F’s E-SAPI plates. Based on this, the staff judge advocate 

recommended that the CA except the number “4” and substitute the number “2” 

from Specification 4 of Additional Charge II to reflect that the CA approved 

a finding of the appellant’s larceny of 2 vice 4 E-SAPI plates alleged in 

this specification. The CA’s action followed this recommendation and 

therefore we conclude the CA disapproved the appellant’s conviction for 

larceny of the E-SAPI plates issued to Cpl F.

16 PE 39.

17 Record at 211, 220-22.

18 Id. at 219; 222.

19 Id. at 221.

20 Id. at 221-23.
6

Marines. The appellant specifically testified that he received 

the first pair of NVGs he sold from Gunnery Sergeant A in 2008 

and that those type of NVGs had not been issued in the Marine 

Corps since 2003. The appellant also testified to working with 

Sergeant (Sgt) C to acquire and sell property. The appellant 

stated that Sgt C similarly acquired tactical gear from the same 

online resale site the appellant frequented and when the 

appellant found a buyer for this equipment, Sgt C would provide 

the appellant with gear to sell and they would share the profit. 

The appellant denied stealing any of the items he sold and 

testified that he “never thought it was stolen it was just, you 

know, old DRMO21 stuff that was either excess or no one had a 

need for anymore.”22

 

Additional facts necessary for the resolution of particular 

assignments of error are included below.

Factual Sufficiency

We review issues of factual sufficiency de novo. United 

States v. Beatty, 64 M.J. 456, 459 (C.A.A.F. 2007).

The test for factual sufficiency is “whether, after 

weighing the evidence in the record of trial and making 

allowances for not having personally observed the witnesses, [we 

are] convinced of the [appellant]’s guilt beyond a reasonable 

doubt.” United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987). 

In conducting this unique appellate role, we take “a fresh, 

impartial look at the evidence,” applying “neither a presumption 

of innocence nor a presumption of guilt” to “make [our] own 

independent determination as to whether the evidence constitutes 

proof of each required element beyond a reasonable doubt.” 

United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). 

Our factual sufficiency determination is limited to a review of 

the “entire record,” meaning evidence presented at trial. United 

States v. Bethea, 46 C.M.R. 223, 225 (C.M.A. 1973); see also 

United States v. Reed, 54 M.J. 37, 44 (C.A.A.F. 2000).

 

21 DRMO refers to a DLA program to dispose of excess property from the 

military services. DLA Disposition Services manages the DoD surplus property 

sales program. Excess property that is not reutilized, transferred, or 

donated may be sold to the public. The property, no longer needed by the 

Government, is only to be sold if it is appropriate and safe for sale to the 

general public.

22 Record at 278.
7

Larceny 

“When it is established that the accused is in conscious, 

exclusive, and unexplained possession of recently-stolen 

property under such circumstances that innocent possession is 

reasonably ruled out,” the factfinder is permitted to infer that 

such possession “could have been acquired only by the 

possessor's theft of that property.” United States v. Pasha, 24 

M.J. 87, 90 (C.M.A. 1987) (quoting Pendergrast v. United States, 

416 F.2d 776, 787 (D.C. Cir. 1969). The Government essentially 

staked their larceny case on this permissible inference, arguing 

in closing “[t]here was a taking of the property ... because the 

U.S. Government, who owns the property, no longer had the 

property. It was in the control and custody of the accused.”23 

In conducting our review pursuant to Article 66(c), UCMJ,

and making allowances for not having seen or heard the 

witnesses, we simply find factually insufficient evidence to 

infer that the appellant’s possession of the property 

necessarily resulted from his theft. Even setting aside the 

appellant’s contention that he acquired the property through 

lawful means, the Government produced only minimal evidence that 

any of the property items were “recently” stolen or missing. 

The notable exception being the E-SAPI plates originally issued 

to Cpl R. However, Cpl R’s testimony was no more specific than

that his E-SAPI plates went missing from the NCO office sometime 

between February 2010 and February 2011 and that he filed a 

missing gear statement.24 The Government’s paucity of evidence 

as to when and how the appellant acquired possession of the 

items is highlighted by specifications that allege the appellant 

committed the larcenies “at an unknown location, on an unknown 

date.” The appellant sold items commonly used by the military 

and issued to Marines. The Government essentially argued that 

since such items were not supposed to leave DoD control and the 

appellant possessed them, he therefore must have stolen the

items. Considering the record before us, we find this argument 

unpersuasive and are not convinced of the appellant’s guilt 

 

23 Id. at 395.

24 Cpl R’s missing gear statement was not offered at trial however, a missing 

gear statement from Cpl R was included in the appellant’s post-trial 

submissions to the CA. The statement indicates that Cpl R, along with twelve 

other Marines, was directed to give up his MTV (including E-SAPI plates) to 

the Afghanistan National Border Patrol and the 2d LAR Unit Interpreters prior 

to redeploying from Afghanistan in 2009. As we are limited to the evidence 

presented at trial in conducting our Article 66(c) review of the courtmartial findings, (see Beatty, 64 M.J. at 458 n.4), we have not considered

the appellant’s post trial submissions in our factual sufficiency review.
8

beyond a reasonable doubt as to any of the five specifications 

under Charge II. 

Wrongful Sale of Military Property

The appellant also avers that the Government presented 

insufficient evidence to prove that the items the appellant sold 

to the NCIS undercover agents were “military property” at the 

time the transactions were completed. Under Article 108, 

“[m]ilitary property is all property, real or personal, owned, 

held, or used by one of the armed forces of the United States. . 

. . It is immaterial whether the property sold . . . had been 

issued to the accused, to someone else, or even issued at all.” 

MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), Part IV, ¶ 32c(1).

“In a general sense, all property purchased with federal funds 

and owned or held by a service is military property.” United 

States v. Simonds, 20 M.J. 279, 280 (C.M.A. 1985) (holding 

merchandise from a ship’s store was military property) (citation 

omitted); cf. United States v. Schelin, 15 M.J. 218, 220 

(C.M.A. 1983) (holding retail merchandise of the Army and Air 

Force Exchange Service was not “military property of the United 

States”).

The Government relied upon the following circumstantial 

evidence to prove the items were military property: 

(1) statements the appellant made to the undercover agents 

during the sale transactions; (2) identifying markings on the 

property; (3) the appearance and tactical nature of the 

property; (4) testimony from SA G about the proper 

demilitarization of such property; (5) several items with

scratched over serial numbers rendering them unreadable; and (6)

three of the E-SAPI plates with legible serial numbers that were 

traced to items issued to Cpl R and Cpl F. With the exception 

of the flashlight kit25 and flashlight26, we are convinced beyond 

a reasonable doubt that the items the appellant sold to 

undercover NCIS Agents on five separate occasions between 

December 2010 and April 2011 were military property.27 

 

25 Prosecution Exhibit 18.

26 PE 24.

27 PEs 18 and 24 display no visible markings indicating the items are U.S. 

Government property. The Government presented no evidence to establish the 

items as tactical military equipment. SSA G did not testify regarding the 

flashlight kit or flashlight and they were not listed on the Webflis document 

entered into evidence. After selling a flashlight kit to SA D on 14 January

2011, the appellant told him “I don’t know anything about Surefires, but if 

you’re saying it’s CTEP, I’m pretty sure we can get it.” Record at 152. SA D 
9

NVGs, Plate Carriers and Modular Tactical Vest, and E-SAPI 

plates 

The appellant sold a single pair of NVGs28 at each of the 

controlled buys on 5 January and 10 February. During the first 

transaction the appellant, referring to the NVGs, told SA D, 

“[p]retty much it is refurbished, I mean, we go get like 

aftermarket parts to repair on deployment. So we piece them 

together so it is not like a serialized piece of gear. So we 

will stockpile and like some of the base units. Once we get 

enough to make an extra one, you know, we will make an extra 

one.”29 The appellant then later told SA D during the same 

transaction, “I mean. It’s kind of stupid to say, but I’m 

always worried about selling some of this stuff to, you know, 

shady people, you know dirtbags. . . .”30 

The three serialized E-SAPI plates admitted into evidence 

were issued to Marines belonging to the appellant’s unit. All

but one of the E-SAPI plates introduced were marked “U.S.” and 

eight of them looked virtually identical to the serialized 

plates, with the exception that the serial numbers on those 

eight were obscured. The remaining six looked similar, but were 

smaller side E-SAPI that lacked serial numbers. SSA G testified 

that all of this equipment, to include the MTV and plate 

carriers, was listed in WebFLIS and carried a demilitarization 

code “D”, meaning the items were prohibited from leaving

Government control intact and usable. On their face, the items 

are clearly tactical gear of the type and character issued to 

military personnel, a fact recognized by the appellant when he 

expressed reservations about selling the equipment to the wrong 

sort of people. 

The appellant alleges the Government presented insufficient 

evidence to prove that the items were military property because 

they were, by and large, not traced back to the Marine Corps 

 

testified that CTEP “is another gear warehouse for the Marine Corps such as 

CIF, the Consolidated Issuance Facility.” Id. On 10 Feb 2011, the appellant 

sold a flashlight to SA D. We do not find the appellant’s statement 

concerning “Surefires” sufficient to prove the flashlight kit and flashlight 

he sold were military property. In short, we are not convinced that the 

Government proved the flashlight kit and flashlight entered into evidence 

were military property at the time the appellant sold the items.

28 PE 9 and PE 22.

29 Record at 140-141.

30 Id. at 142.
10

and, despite the items having a demilitarization code “D”, SSA G 

conceded that such items have left military control through 

illegal means or by mistake in the past. The members clearly 

rejected the appellant’s contention at trial and found that the 

items were military property and the appellant knowingly and 

wrongfully sold the items. We agree with respect to all the 

items, excepting PE 18 and PE 24, and are convinced beyond a 

reasonable doubt of the appellant’s guilt to the specifications 

under Charge I. 

 

Judicial Bias

Approximately five weeks following adjournment of the

appellant’s court-martial, the trial defense team filed a 

docketing motion requesting a post-trial Article 39(a), UCMJ,

session to address the military judge at the appellant’s courtmartial, Colonel (Col) Riggs, continued participation in the 

case.31 This defense request was prompted by Col Riggs selfrecusal in a separate case based in part on interactions between 

Col Riggs and the military defense counsel, who also represented 

the appellant.32 After receiving a court response to their 

docketing motion, the defense team filed a motion for Col Riggs

to recuse himself from further participation in the appellant’s 

case.33 

Col D. J. Daugherty, then-Chief Judge of the Navy-Marine 

Corps Trial Judiciary, detailed himself to conduct a post-trial 

hearing on the appellant’s motion. Following that hearing, 

during which Col Riggs testified, Col Daugherty ruled that “in 

the interests of justice and in order to enable the full and 

free exercise of the post-trial due process rights of the 

accused, this case must be transferred to a new judge for any 

post trial judicial matters.”34 Col Daugherty also ruled, 

“[t]hat the defense has failed to establish a reasonable factual 

basis for disqualification of Col Riggs during the trial phase 

of this case.”35 The defense then filed a motion on 28 June 2013 

to set-aside the findings due to the disqualification of Col 

Riggs or, in the alternative, for a mistrial under RULE FOR COURTS-

 

31 Appellate Exhibit L.

32 The hearing in the separate case took place three weeks after the 

appellant’s court-martial adjourned. 

33 AE LIV.

34 AE LXIII at 12.

35 Id.
11

MARTIAL 915, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.).36 

Following another post-trial Article 39(a) session, Col

Daugherty denied the defense motion in a written ruling wherein

he stated:

Based on a complete reading of the verbatim record of 

trial, an analysis of both the number of objections, 

the rulings, the language used in his rulings and the 

tact Judge Riggs took with both trial and military 

defense counsel and his tact with Mr. Beal, and upon 

reflection of each of the defense allegations and the 

testimony of Judge Riggs, the court finds beyond a 

reasonable doubt that in the context of the entire 

trial, a reasonable man knowing all the facts and 

circumstances would not doubt the legality, the 

fairness and the impartiality of Judge Riggs during 

the court-martial.37 

In this assignment of error, the appellant reiterates his 

post-trial challenge to set aside the findings due to the 

disqualification of Col Riggs to preside at his court-martial. 

We find that Col Daugherty did not abuse his discretion in

denying the defense motion.

“‘An accused has a constitutional right to an impartial

judge.’” United States v. Butcher, 56 M.J. 87, 90 (C.A.A.F.

2001) (quoting United States v. Wright, 52 M.J. 136, 140 

(C.A.A.F. 1999)) (additional citations omitted). R.C.M. 902(a), 

provides that “a military judge shall disqualify himself or 

herself in any proceeding in which that military judge’s 

impartiality might reasonably be questioned.” The decision of a 

military judge on the issue of recusal is reviewed on appeal for 

abuse of discretion. United States v. Norfleet, 53 M.J. 262, 

270 (C.A.A.F. 2000). In reviewing a military judge’s ruling on 

a recusal motion, we consider the facts and circumstances under 

an objective standard. Butcher, 56 M.J. at 91. The test is 

whether there was “‘[a]ny conduct that would lead a reasonable 

man knowing all the circumstances to the conclusion that the 

judge’s impartiality might reasonably be questioned . . . .” 

Id. (quoting United States v. Kincheloe, 14 M.J. 40, 50 (C.M.A. 

1982)) (additional citation and internal quotation marks 

omitted).

 

36 AE LXIV.

37 AE LXXI at 14.
12

The appellant now alleges Col Daugherty abused his 

discretion in the following three ways: (1) he misapplied the 

law in stating, “a reasonable man would see that Judge Riggs was 

not the finder of fact or the determiner of the sentence in this 

case”38 because a military judge disqualified to sit in a judge 

alone trial is equally disqualified to preside over a members 

trial; (2) his ruling omitted an exchange where the military 

judge responded to an objection by the assistant trial counsel 

that the military defense counsel “is testifying” by stating, 

“and arguing with the witness, so sustained”; and (3) his ruling 

was overly reliant on the failure of the trial defense team to 

challenge the military judge or object further to his actions 

during the course of the trial.39

Col Daugherty’s reference to the military judge not being 

the fact finder or sentencing authority in the appellant’s court 

martial was part of a seven-page “analysis and discussion”

section in his written ruling and was one of many factors he 

cited in evaluating the overall appearance of fairness of the 

appellant’s court-martial. We do not interpret the statement as 

a finding that Col Riggs would have been disqualified from 

presiding over a judge-alone trial or espousing law contrary to 

Sherrod. We do not find it to be a central factor in Col 

Daugherty’s ruling and even if we had found that he erred in

making the reference we would also find it to be harmless error. 

In his written ruling, Col Daugherty cited to multiple 

occasions in the record where Col Riggs engaged in semicontentious exchanges with counsel for both sides, in front of 

members and also outside their presence. Though Col Daugherty

did not endorse the judicial temperament Col Riggs displayed 

during the trial40 he ultimately concluded Col Riggs interactions 

with counsel did not reflect an abandonment of his impartial 

judicial role. We agree and note that “remarks, comments, or 

 

38 Appellant’s Brief of 2 Jun 2014 at 23 (citing United States v. Sherrod, 26 

M.J. 30, 33 (C.M.A. 1988)).

39 We find this contention unpersuasive as the “[f]ailure of the defense to 

challenge the impartiality of a military judge may permit an inference that 

the defense believed the military judge remained impartial.” United States 

v. Burton, 52 M.J. 223, 226 (C.A.A.F. 2000) (citation omitted).

40 Col Daughtery stated, “[t]his ruling should not be taken as a tacit 

endorsement of Judge Riggs’ deportment, conduct or comments to counsel. 

Judge Riggs could have done better in his deportment, he could have been 

milder or more courteous with all the counsel and he could have taken greater 

care to ensure that all his comments and actions appeared just at all times.” 

AE LXXI at 14.
13

rulings of a judge do not constitute bias or partiality, ‘unless 

they display a deep-seated favoritism or antagonism that would 

make fair judgment impossible.’” United States v. Quintanilla, 

56 M.J. 37, 44 (C.A.A.F. 2001). 

In considering the facts before us, including Col 

Daugherty’s precautionary action to replace Col Riggs posttrial, we find that no reasonable observer, fully cognizant of 

the pertinent facts, would conclude that this appellant did not 

receive a fair trial from an impartial judge.

Post-Trial Delay

Whether an appellant has been deprived of his due process 

right to a speedy appellate review is a question of law we 

review de novo. When such delays occur, claims of due process 

violations caused by the delay are reviewed under the four-part 

test laid out in Barker v. Wingo, 407 U.S. 514, 530 (1972). 

United States v. Moreno, 63 M.J. 129, 135 (C.A.A.F. 2006). In 

such analysis, we balance the (1) length of delay; (2) reasons 

for the delay; (3) appellant’s assertion of the right to timely 

review and appeal; and (4) prejudice. Id. No one factor is 

determinative and the court will decide whether each factor 

favors the Government or the appellant. Id. at 136. 

A due process analysis of post-trial delay begins with a 

determination whether the delay in question is facially 

unreasonable. Id. at 135-36. If the period between completion 

of the trial and the CA’s final action is greater than 120 days, 

it is presumed to be a facially unreasonable delay. Id. at 142. 

The length of delay between the completion of the court-martial 

on 8 August 2013 and the CA’s Action on 20 March 2014 totaled 

212 days. As such, the delay in this case is unreasonable on 

its face, triggering a full Barker/Moreno analysis. See id. 

The presumption of unreasonableness can be overcome by a 

showing of legitimate, case-specific circumstances. Id. at 142-

43; see also United States v. Arriaga, 70 M.J. 51, 56 (C.A.A.F 

2011). Here, the staff judge advocate (SJA) completed his 

recommendation (SJAR) on 4 November 2013 and eleven days later 

the appellant’s detailed defense counsel submitted a 122-page 

response alleging thirteen legal errors. The SJA provided a 

detailed addendum to his original SJAR on 20 January 2014,

addressing the appellant’s allegations of legal error. The 

detailed counsel responded on 29 January 2014 by alleging 

additional legal errors. The SJA then issued a second addendum 

on 7 March 2014, in which he recommended the CA disapprove a 
14

portion of the findings,41 reduce the adjudged fine by $1003.59 

to account for the partial disapproval of the findings, and 

further reduce the fine by $1896.42 as a matter of clemency to 

account for the post-trial delay. Eleven days later, detailed 

counsel again responded by alleging numerous legal errors, 

stating the recommended clemency was inadequate and maintaining

that a sentencing rehearing was required. The CA acted on 20 

March 2014 and explained that post-trial processing delay 

resulted from the lengthy record of trial, the time required for 

his SJA to carefully review the record and address the multiple 

submissions from the appellant alleging legal error and 

requesting clemency, base closings due to inclement weather and 

numerous federal holidays. Here we find the extensive posttrial review was the primary factor that caused the delay. 

Next, this court looks at whether the appellant objected to 

the delay or asserted his right to timely review. See Arriaga, 

70 M.J. at 57. In the detailed counsel’s 29 January 2014 

response to the first addendum to the SJAR, he complains of 

post-trial delay.

When analyzing the fourth factor, prejudice, the court 

should consider three interests in a prompt appeal: 

(1) prevention of oppressive incarceration; (2) minimization of 

anxiety and concern of those awaiting the outcome of their 

appeals; and, (3) limitation of the possibility that a convicted 

person’s grounds for appeal, and his or her defenses in case of 

reversal and retrial, might be impaired by the delay. Moreno, 

63 M.J. at 138-41. The appellant was adjudged contingent 

confinement, which he did not serve. For the second sub-factor, 

the appellant must demonstrate he suffered a “‘particularized 

anxiety or concern that is distinguishable from the normal 

anxiety experienced by prisoners awaiting an appellate 

decision.’” Arriaga, 70 M.J. at 58 (quoting Moreno, 63 M.J. at 

140). Here, assuming the appellant’s general complaint of 

anxiety about waiting for the check to be cashed to pay his fine

meets the “particularized” requirement, we find this was 

ameliorated by the CA’s reduction of the appellant’s fine 

amount. Finally, in light of our remedial action, we find no 

prejudice on the third sub-factor addressing retrial.

Considering the facts before us, we find the financial 

relief the CA provided the appellant in the form of approving a 

reduced fine amount satisfied any violation caused by post-trial 

delay. 

 

41 See Footnote 15.
15

Sentence Reassessment

Because of our action on the findings, we will reassess the 

sentence in accordance with the principles set forth in United 

States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006), United States v. 

Cook, 48 M.J. 434, 438, (C.A.A.F. 1998), and United States v. 

Sales, 22 M.J. 305, 307-09 (C.M.A. 1986). Although a “‘dramatic 

change in the penalty landscape’ gravitates away from the 

ability to reassess” a sentence, United States v. Buber, 62 M.J. 

476, 479 (C.A.A.F. 2006) (quoting United States v. Riley, 58 

M.J. 305, 312 (C.A.A.F. 2003)), we ultimately find no such 

change here. 

While our decision reduces the maximum possible punishment 

from confinement for 100 years to confinement for 50 years, both 

punishments are so far removed from the approved sentence as to 

render the difference legally insignificant. More importantly, 

nothing in our decision changes the evidence properly in the 

record for sentence determination. We specifically find that 

Cpl F’s testimony concerning the negative financial impact 

caused by his missing E-SAPI plate would have been equally 

admissible since the appellant remains convicted of knowingly 

and wrongfully selling that military property. Finally, the 

facts adduced on the affirmed charge and specifications provide 

ample justification for the approved sentence. 

Conclusion

The findings of guilty to Charge II and all specifications

thereunder are set aside and Charge II and its specifications 

are dismissed with prejudice. Additionally, we except the words 

“a M962 Surefire Flashlight kit” from Specifications 3 and 4 

under Charge I. We affirm the remaining findings, as excepted,

and the sentence as approved by the CA.

For the Court

 

 

 

R.H. TROIDL

Clerk of Court