United States v. Hardy , 76 M.J. 732 ( 2017 )

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 38937
________________________
UNITED STATES
Appellee
v.
Ryan A. HARDY
Captain (O-3), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 22 June 2017
________________________
Military Judge: Donald R. Eller, Jr.
Approved sentence: Dismissal and confinement for 12 years. Sentence
adjudged 30 July 2015 by GCM convened at Ramstein Air Base, Ger-
many.
For Appellant: Major Lauren A. Shure, USAF; Captain Patrick A. Clary,
USAF; M. Brian Magee, Esquire.
For Appellee: Major Mary Ellen Payne, USAF; Major Meredith L. Steer,
USAF; Captain Matthew L. Tusing, USAF; Gerald R. Bruce, Esquire.
Before MAYBERRY, JOHNSON, and SPERANZA, Appellate Military
Judges.
Senior Judge JOHNSON delivered the opinion of the court, in which
Senior Judge MAYBERRY and Judge SPERANZA joined.
________________________
PUBLISHED OPINION OF THE COURT
________________________
JOHNSON, Senior Judge:
A military judge sitting as a general court-martial convicted Appellant,
pursuant to his pleas, of two specifications of abusive sexual contact with a
United States v. Hardy, No. ACM 38937
child, aggravated sexual abuse of a child, three specifications of indecent liber-
ties with a child, two specifications of abusive sexual contact, sexual abuse of
a child, sodomy with a child, conduct unbecoming an officer, communicating
indecent language, and engaging in indecent acts with a child, in violation of
Articles 120, 120b, 125, 133, and 134, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. §§ 920, 920b, 925, 933, 934. 1 The military judge sentenced
Appellant to a dismissal, confinement for 16 years and one day, and forfeiture
of all pay and allowances. Pursuant to a pretrial agreement, the convening au-
thority approved only so much of the sentence as provided for a dismissal and
confinement for 12 years; he also deferred the adjudged forfeiture of pay and
allowances until action and waived mandatory forfeitures for six months for
the benefit of Appellant’s dependent children. 2
On appeal, Appellant asserts three errors: (1) the military judge erred by
failing to merge several specifications for sentencing; (2) prosecutorial miscon-
duct created structural error in his court-martial; and (3) two specifications fail
to state an offense. 3 Although not raised by Appellant, we also address a fa-
cially unreasonable delay in the post-trial processing of his case. We find no
relief is warranted and therefore affirm the findings and sentence.
I. BACKGROUND
Over several years, Appellant sexually abused his biological daughter, TH,
by repeatedly causing her to touch his genitalia, repeatedly touching her
breasts and genitalia, repeatedly watching pornography and masturbating in
her presence, and single instances of ejaculating on her bare chest, engaging
in sodomy with her, and communicating indecent language to her. The abuse
began when TH was approximately 11 years old and continued until she was
1 Pursuant to a pretrial agreement between Appellant and the convening authority,
Appellant pleaded not guilty to one specification of attempted sodomy with a child, one
specification of aggravated sexual assault, two specifications of sexual abuse of a child,
one specification of communicating indecent language, and one specification of ob-
structing justice, in violation of Articles 120, 120b, and 134, UCMJ, and these specifi-
cations were subsequently dismissed at trial.
2The pretrial agreement provided the convening authority would not approve confine-
ment in excess of 12 years; it did not require disapproval, deferral, or waiver of forfei-
ture of pay and allowances.
3Appellant’s second and third assignments of error are raised pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
2
United States v. Hardy, No. ACM 38937
16 years old. Appellant also pleaded guilty to fondling the breasts of his step-
daughter, AT, who was under 16 years old at the time.
II. DISCUSSION
A. Unreasonable Multiplication of Charges
On appeal, Appellant contends for the first time that several of the specifi-
cations he pleaded guilty to should be consolidated because they “charge the
same conduct,” and this court should remand the case for a rehearing on the
sentence. Specifically, Appellant argues his colloquy with the military judge
during the providence inquiry 4 indicates the instances of touching his then-
under 16-year-old daughter’s breasts and genitalia, watching pornography in
her presence, and masturbating in her presence all occurred on the same occa-
sions, and the instance of ejaculating on her chest also occurred during one of
these incidents. Similarly, he contends the separate specifications of abusive
sexual contact for touching his then-16-year-old daughter’s breasts and touch-
ing her genitalia over her clothing occurred during the same instances of wres-
tling or horseplay. Therefore, applying the five-factor test for unreasonable
multiplication of charges articulated in United States v. Quiroz, 55 M.J. 334,
338 (C.A.A.F. 2001), he argues the specifications derived from the “pornogra-
phy/masturbation incidents” should be consolidated into one specification, and
the separate specifications for touching her breasts and her genitalia during
the “wrestling or horseplay incidents” should be consolidated into another.
Unreasonable multiplication of charges is distinct from the related doctrine
of multiplicity. Multiplicity in violation of the Double Jeopardy Clause5 occurs
when “a court, contrary to the intent of Congress, imposes multiple convictions
and punishments under different statutes for the same act or course of con-
duct.” United States v. Anderson, 68 M.J. 378, 385 (C.A.A.F. 2010) (quoting
United States v. Roderick, 62 M.J. 425, 431 (C.A.A.F. 2006)) (emphasis and
internal quotation marks omitted). Even if charged offenses are not multi-
plicious, courts may apply the doctrine of unreasonable multiplication of
charges to merge or dismiss certain charges and specifications. Rule for Courts-
Martial (R.C.M.) 307(c)(4) summarizes this principle as follows: “What is sub-
stantially one transaction should not be made the basis for an unreasonable
multiplication of charges against one person.” Thus, the Government may not
needlessly “pile on” charges against an accused. United States v. Foster, 40 M.J.
140, 144 n.4 (C.M.A. 1994), overruled on other grounds by United States v. Mil-
4 United States v. Care, 40 C.M.R. 247 (C.M.A. 1969).
5 U.S. CONST. amend. V.
3
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ler, 67 M.J. 385, 388–89 (C.A.A.F. 2009). We consider the following non-ex-
haustive factors in determining whether unreasonable multiplication of
charges has occurred:
(1) Did the [appellant] object at trial that there was an unrea-
sonable multiplication of charges and/or specifications?; (2) Is
each charge and specification aimed at distinctly separate crim-
inal acts?; (3) Does the number of charges and specifications mis-
represent or exaggerate the appellant’s criminality?; (4) Does
the number of charges and specifications [unreasonably] in-
crease the appellant’s punitive exposure?; (5) Is there any evi-
dence of prosecutorial overreaching or abuse in the drafting of
the charges?
Quiroz, 55 M.J. at 338 (citation and internal quotation marks omitted).
Appellant does not address whether his failure to object at trial coupled
with his guilty plea either forfeited or waived his claim that the Government
unreasonably multiplied these specifications. In contrast, the Government
urges at some length that Appellant’s unconditional guilty plea has waived this
issue.
Our rulings have been less than clear as to whether waiver applies in such
circumstances. As to Appellant’s failure to object, in United States v. Erby, 46
M.J. 649, 652 (A.F. Ct. Crim. App. 1997), aff’d in part and modified in part, 49
M.J. 134, 134 (C.A.A.F. 1998), we held “an accused waives any argument re-
specting an unreasonable multiplication of charges, as distinguished from dou-
ble jeopardy/multiplicity, by failing to bring it up at trial.” A series of un-
published decisions of this court subsequently cited Erby for the same proposi-
tion. See, e.g., United States v. Kowalewski, No. ACM 36837, 2008 CCA LEXIS
185, at *13 (A.F. Ct. Crim. App. 8 May 2008) (unpub. op.); United States v.
Carr, No. ACM 35300, 2005 CCA LEXIS 278, at *16 (A.F. Ct. Crim. App. 25
Aug. 2005) (unpub. op.); United States v. Dillon, No. ACM 34933, 2004 CCA
LEXIS 51, at *5–6 (A.F. Ct. Crim. App. 11 Feb. 2004) (unpub. op.). However,
merely failing to raise an issue at trial generally constitutes forfeiture, whereas
waiver is the intentional relinquishment of a known right. United States v.
Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009). The distinction is important, because
while appellate courts review forfeited issues for plain error, they “do not re-
view waived issues because a valid waiver leaves no error to correct on appeal.”
United States v. Ahern, 76 M.J. 194, 197 (C.A.A.F. 2017).
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As to the effect of an unconditional guilty plea, 6 R.C.M. 910(j) provides such
a plea “which results in a finding of guilty waives any objection, whether or not
previously raised, insofar as the objection relates to the factual issue of guilt of
the offense(s) to which the plea was made.” (Emphasis added). However, the
doctrine of unreasonable multiplication of charges is not a factual issue of Ap-
pellant’s guilt, but addresses instead “prosecutorial overreach by imposing a
standard of reasonableness.” United States v. Paxton, 64 M.J. 484, 490
(C.A.A.F. 2007). Therefore, it is not clear that R.C.M. 910(j) on its face fore-
closes such challenges in the wake of an unconditional guilty plea. Yet the
United States Court of Appeals for the Armed Forces (CAAF) has at times sug-
gested a guilty plea will waive such claims, unless the specifications are “fa-
cially duplicative”—in which case double jeopardy multiplicity concerns would
also be implicated. See United States v. Schweitzer, 68 M.J. 133, 136 (C.A.A.F.
2009); United States v. Lloyd, 46 M.J. 19, 24 (C.A.A.F. 1997).
In Schweitzer, the CAAF acknowledged that R.C.M. 910(j) did not explicitly
govern objections unrelated to factual issues of guilt; yet the court stated “the
general principle still applies: An unconditional guilty plea generally ‘waives
all defects which are neither jurisdictional nor a deprivation of due process of
law.’” 68 M.J. at 136 (quoting United States v. Rehorn, 26 C.M.R. 267, 268–69
(C.M.A. 1958)). The particular issue waived in Schweitzer was disqualification
of the convening authority rather than unreasonable multiplication of charges.
Id.; see also United States v. Bradley, 68 M.J. 279, 281 (C.A.A.F. 2010) (finding
an unconditional guilty plea waived issue of disqualification of trial counsel).
However, our sister court has repeatedly interpreted Schweitzer to mean an
unconditional guilty plea does, in fact, waive any issue of unreasonable multi-
plication of charges absent facially duplicative specifications. See, e.g., United
States v. Moore, No. ARMY 20150007, 2017 CCA LEXIS 65, at *2–3 (Army Ct.
Crim. App. 31 Jan. 2017) (unpub. op.); United States v. Watford, No. ARMY
20150549, 2017 CCA LEXIS 68, at *2 (Army Ct. Crim. App. 30 Jan. 2017) (un-
pub. op.); United States v. Russell, No. ARMY 20150397, 2016 CCA LEXIS 673,
at *3 (Army Ct. Crim. App. 18 Nov. 2016) (unpub. op.).
Yet recently in United States v. Ellis, No. ACM 38655, 2016 CCA LEXIS
24, at *8–10 (A.F. Ct. Crim. App. 12 Jan. 2016) (unpub. op.), citing the CAAF’s
decision in Lloyd, 46 M.J. at 24, we found that an unconditional guilty plea
forfeited, rather than waived, the appellant’s claim that the charges were un-
reasonably multiplied as to sentencing. The appellant raised the issue prior to
6 R.C.M. 910(a)(2) provides an accused may, with the approval of the military judge
and consent of the Government, enter a conditional guilty plea that preserves appellate
review of an adverse ruling on a specified pretrial motion. However, Appellant’s plea
was unconditional.
5
United States v. Hardy, No. ACM 38937
entering his pleas, but the military judge deferred ruling on unreasonable mul-
tiplication as to sentencing until after he entered findings on the appellant’s
unconditional guilty plea. Ellis, unpub. op. at *7. Therefore, we tested the mil-
itary judge’s post-findings ruling on unreasonable multiplication of charges for
plain error. Id. at *9–10.
In United States v. Bailey, No. ACM S32375, 2017 CCA LEXIS 356, at *5
(A.F. Ct. Crim. App. 22 May 2017), we recently found the trial defense counsel’s
explicit withdrawal of a request for a bill of particulars coupled with an uncon-
ditional guilty plea waived appellate consideration of unreasonable multiplica-
tion of charges. In addition, after withdrawing the request and before entering
pleas, the trial defense counsel explicitly confirmed to the military judge “that
there were no unresolved issues with respect to the charges and specifications.”
Id. at *3. Thus Bailey involved an aspect of affirmative waiver of the issue that
is not present here.
To further complicate, or perhaps simplify, matters, the CAAF has held
that even with respect to waived issues, Article 66(c), UCMJ, 10 U.S.C. §
866(c), requires a Court of Criminal Appeals to “assess the entire record to
determine whether to leave an accused’s waiver intact, or to correct the error.”
United States v. Chin, 75 M.J. 220, 223 (C.A.A.F. 2016). Thus the CAAF upheld
this court’s decision to disapprove and merge offenses, notwithstanding the ap-
pellant’s waiver, relying on Article 66(c) to correct a gross exaggeration of the
appellant’s criminality. Id. at 223–24. Similarly, in Quiroz the CAAF found our
Navy and Marine Corps colleagues acted well within their authority under Ar-
ticle 66(c) “to determine the circumstances, if any, under which [they] would
apply waiver or forfeiture” where an appellant pleads guilty and fails to raise
unreasonable multiplication of charges at trial. 55 M.J. at 338.
In summary, we must first decide whether Appellant’s trial-level failure,
in a guilty plea case, to raise unreasonable multiplication of charges waived or
forfeited his claim on appeal. If it is waived, the claim “is extinguished and may
not be raised on appeal,” Gladue, 67 M.J. at 313, unless the challenged speci-
fications are facially duplicative. See Lloyd, 46 M.J. at 23. If the claim is merely
forfeited, Appellant is entitled to plain error review. Id. Even if Appellant has
waived or forfeited the claim, pursuant to Article 66(c) we must decide whether
to apply that waiver or forfeiture, or to take corrective action in spite of it. See
Chin, 75 M.J. at 223.
In light of Schweitzer, under the facts of this case, where Appellant both
failed to raise unreasonable multiplication of charges at trial and pleaded
guilty unconditionally, we find he waived his claim of unreasonable multipli-
cation of charges. 68 M.J. at 136. The asserted error is neither jurisdictional
nor a deprivation of due process of law. See id. We further find the challenged
specifications are not facially duplicative. Each specification requires proof of
6
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a fact which the others do not, and none is “rationally derivative” of another.
United States v. Pauling, 60 M.J. 91, 94 (C.A.A.F. 2004). In other words, each
of the charged offenses could have been committed without necessarily com-
mitting any of the other offenses. See United States v. Berg, No. ACM 36989,
2008 CCA LEXIS 339, at *8 (A.F. Ct. Crim. App. 2008) (explaining an offense
is “rationally derivative” of another when the “one offense could not possibly
be committed without committing the other offense”). Therefore, Appellant is
foreclosed from raising this issue on appeal. 7
Finally, we have evaluated whether to exercise our authority and mandate
under Article 66(c) to act in spite of Appellant’s waiver and forfeiture. Chin, 75
M.J. at 223. We find such action is not warranted in this case. Accordingly,
Appellant is entitled to no relief.
B. Prosecutorial Misconduct
Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), Appel-
lant asserts prosecutorial misconduct in his case amounted to “structural er-
ror” that requires all charges and specifications be dismissed with prejudice.
We disagree.
Appellant’s claim stems in part from the trial counsels’ actions at the first
pretrial investigation conducted pursuant to Article 32, UCMJ, 10 U.S.C. §
832. 8 The named victims in Appellant’s case, TH and AT, had been invited to
attend the hearing conducted at Ramstein Air Base, Germany, but they de-
clined. However, without objection from the Defense, civilian counsel for TH
observed the Article 32 proceedings by videoteleconference (VTC). Unbe-
knownst to the Defense or the Investigating Officer (IO), at least one of the
7 In addition to waiver, we find Appellant’s failure to raise the issue at trial also for-
feited his claim of unreasonable multiplication of charges. Although unnecessary in
light of Appellant’s waiver, were we to review the issue for plain error, we would find
the military judge did not commit “plain or obvious” error by failing to act sua sponte
on the allegedly unreasonably multiplied specifications. See United States v. Girouard,
70 M.J. 5, 11 (C.A.A.F. 2011) (to prevail under a plain error analysis, an appellant
must show (1) there was an error; (2) the error was plain and obvious; and (3) the error
materially prejudiced a substantial right).
8 We note that Congress subsequently modified Article 32, UCMJ, to provide for a “pre-
liminary hearing” with purposes and procedures that differ significantly from the
“thorough and impartial investigation” in effect at the times relevant to Appellant’s
case. Compare 10 U.S.C. § 832 (2012), with 10 U.S.C. § 832 (2016).
7
United States v. Hardy, No. ACM 38937
victims, TH, was also observing the proceedings via the VTC, but she was sit-
uated off-screen. 9 She was thus not visible to the participants, and her pres-
ence was apparently not announced by her counsel or by trial counsel. After
the hearing, trial defense counsel suspected one or both of the victims had been
present and raised the issue with the IO. Senior trial counsel represented that
he had only been aware of a possibility that TH might attend, but subsequent
inquiries disclosed email correspondence before the hearing indicating both the
senior trial counsel and assistant trial counsel expected TH to be present by
VTC.
At trial, the Defense moved the court to dismiss all charges and specifica-
tions because “government actions have irreparably tainted the entire proceed-
ing,” specifically by exposing the victims to other testimony presented at the
first Article 32 hearing. The military judge determined trial counsel were
aware “to a reasonable degree of certainty” that TH would attend. However,
for purposes of ruling on the motion, he found it unnecessary to determine
whether prosecutorial misconduct occurred. Assuming, without finding, there
was prosecutorial misconduct, he found dismissal of the charges and specifica-
tions was not warranted for the following reasons: it was speculative as to
whether the IO would have excluded the victims from the VTC had he known
they were present; the Defense could not provide evidence the victims’ presence
had any impact on their testimony; and trial defense counsel would be able to
cross-examine the victims at trial regarding their prior statements and expo-
sure to other evidence.
Appellant also alleges prosecutorial misconduct in that trial counsel failed
to disclose to Defense a substantial amount of data obtained from computer
equipment in Appellant’s home. Trial defense counsel discovered the existence
of this material on 21 April 2015, the second day of motions practice, and
brought it to the military judge’s attention. As a result, the military judge
granted a continuance that extended until 30 July 2015, when Appellant ulti-
mately pleaded guilty pursuant to a pretrial agreement as described above. 10
“Prosecutorial misconduct can be generally defined as action or inaction by
a prosecutor in violation of some legal norm or standard, e.g., a constitutional
9 It is apparent from the record that TH was present. The Defense alleged AT was also
present, and the parties appear to assume that she was; however, the evidence for this
is less clear, and the military judge did not make a specific finding in this regard. For
purposes of our analysis it is immaterial whether only TH or both of the victims were
present.
10 The Government was represented by a different senior trial counsel and assistant
trial counsel during the 30 July 2015 proceeding.
8
United States v. Hardy, No. ACM 38937
provision, a statute, a Manual [for Courts-Martial] rule, or an applicable pro-
fessional ethics canon.” United States v. Hornback, 73 M.J. 155, 160 (C.A.A.F.
2014) (quoting United States v. Meek, 44 M.J. 1, 5 (C.A.A.F. 1996)) (quotation
marks omitted). When properly objected to at trial, appellate courts test alle-
gations of prosecutorial misconduct for prejudicial error. Id. at 159. Determin-
ing the prejudicial impact of prosecutorial misconduct requires balancing three
factors: (1) the severity of the misconduct, (2) the measures adopted to cure the
misconduct, and (3) the weight of the evidence supporting the conviction. Id.
at 160.
Structural error exists when an appellate court faces difficulty in assessing
the effect of the error or the error is so fundamental that harmlessness is irrel-
evant. United States v. Wiechmann, 67 M.J. 456, 463 (C.A.A.F. 2009) (citing
United States v. Brooks, 66 M.J. 221, 224 (C.A.A.F. 2008)). “‘Structural errors
involve errors in the trial mechanism so serious that ‘a criminal trial cannot
reliably serve its function as a vehicle for determination of guilt or innocence.’”
Brooks, 66 M.J. at 224 (quoting Arizona v. Fulminante, 499 U.S. 279, 309–10
(1991)). There is a strong presumption that errors are not structural. Id.“An unconditional guilty plea generally ‘waives all defects which are nei-
ther jurisdictional nor a deprivation of due process of law.’” Schweitzer, 68 M.J.
at 136 (quoting Rehorn, 26 C.M.R. at 268–69). The defects Appellant complains
of were neither jurisdictional nor did they deny him the due process of law;
although the Defense did raise the issue at trial, Appellant’s subsequent un-
conditional guilty plea waived his right to raise this issue on appeal. Were we
inclined to exercise our Article 66(c) authority to pierce Appellant’s waiver and
review his claim under the test articulated in Hornback—to be clear, we are
not—even assuming arguendo prosecutorial misconduct existed, it is evident
that misconduct ultimately had no prejudicial impact on the proceedings. Fi-
nally, to the extent there was error, Appellant fails to overcome the strong pre-
sumption that such error was not structural and did not fatally undermine the
capacity of the court-martial to determine his guilt or innocence. See Brooks,
66 M.J. at 224. Appellant’s claim warrants no relief.
C. Failure to State an Offense
Pursuant to Grostefon, 12 M.J. at 435–36, Appellant contends that the two
specifications of abusive sexual contact committed against his daughter fail to
state an offense because they do not explicitly state that the act was done with-
out the victim’s consent. Therefore, Appellant contends, they must be dis-
missed. Again, we disagree.
R.C.M. 307(c)(3) states a “specification is sufficient if it alleges every ele-
ment of the charged offense expressly or by necessary implication.” The ele-
ments of the offense of abusive sexual contact by causing bodily harm include:
9
United States v. Hardy, No. ACM 38937
(1) the accused committed sexual contact on the victim, to wit: the contact or
acts alleged; and (2) the accused did so by causing bodily harm to the alleged
victim, to wit: the alleged bodily harm. 10 U.S.C. § 920(d); see Military Judges’
Benchbook, Dept. of the Army Pamphlet 27-9, ¶ 3-45-16 (10 Sep. 2014). “Sexual
contact” includes, inter alia, “any touching . . . either directly or through the
clothing, [of] any body part of any person, if done with an intent to arouse or
gratify the sexual desire of any person.” 10 U.S.C. § 920(g)(2)(B). “Bodily harm”
means “any offensive touching of another, however slight, including any non-
consensual sexual act or nonconsensual sexual contact.” 10 U.S.C. § 920(g)(3).
The specifications in question are substantially similar. One alleges Appel-
lant on divers occasions “touch[ed] the breasts of [TH] by causing bodily harm
to [TH], to wit: touching her breasts with [Appellant’s] hand with an intent to
gratify [Appellant’s] sexual desire.” The other alleges the same, replacing the
term “breasts” with “genitalia.”
Appellant essentially reiterates his pretrial motion to dismiss these speci-
fications for failure to state an offense. He correctly argues that to establish
abusive sexual contact by bodily harm under Article 120, where the alleged
“bodily harm” is the same physical act as the alleged “sexual contact”—in this
case, the touching of TH’s breasts and the touching of her genitalia with Ap-
pellant’s hand—the Government must prove the victim did not consent. See 10
U.S.C. § 920(g)(3); Military Judges’ Benchbook, Dept. of the Army Pamphlet
27-9 at 599 (10 Sep. 2014). Therefore, he contends, lack of consent is an element
that must be pleaded in the specification. The military judge denied Appel-
lant’s motion, concluding that the specifications sufficiently alleged the two el-
ements of abusive sexual contact.
Whether a specification is defective is a question of law that appellate
courts generally review de novo. United States v. Ballan, 71 M.J. 28, 33
(C.A.A.F. 2012). However, citing Ballan, the Government invites us to apply a
plain error standard of review because Appellant admitted during the military
judge’s providence inquiry to the elements of the offenses and that he commit-
ted these offenses without TH’s consent. See id. at 34 (“[A] charge that is de-
fective because it fails to allege an element of an offense, if not raised at trial,
is tested for plain error.”) However, we decline to do so. The version of R.C.M.
907(b) in effect at the time of Appellant’s court-martial provided that the fail-
ure to state an offense was nonwaivable grounds for dismissing a specification
at any stage of the proceedings. Manual for Courts-Martial, United States, pt.
II, ¶ 907(b)(1)(B) (2012). Moreover, unlike Ballan, Appellant did raise the issue
at trial.
Nevertheless, even with de novo review Appellant is entitled to no relief.
We agree with the military judge: these specifications sufficiently alleged the
elements of the offense, apprised Appellant of the allegations he faced, and
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protected him from subsequent prosecution for the same acts. United States v.
Crafter, 64 M.J. 209, 212 (C.A.A.F. 2006). That the specifications, as drafted,
would require the Government to prove the victim did not consent does not
render the specifications defective.
D. Post-Trial Delay
Appellant’s court-martial concluded on 30 July 2015, and the convening
authority took action on 23 November 2015. However, the record of trial was
not docketed with this court until 29 December 2015. This 36-day period ex-
ceeded the 30-day threshold for a presumptively unreasonable post-trial delay
the CAAF established in United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F.
2006). Accordingly, we have considered the four factors identified in Moreno to
assess whether Appellant’s due process right to timely post-trial and appellate
review has been violated. Id. 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)).
Where, as here, there is no discernible 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.”
Toohey, 63 M.J. at 362. Considering the relevant factors together, we conclude
the 36 days that elapsed between the convening authority’s action and docket-
ing with this court was not so egregious as to impugn the fairness and integrity
of the military justice system.
Recognizing our authority under Article 66(c), UCMJ, we have also con-
sidered 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 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), we conclude it is not. On the whole, the processing of Ap-
pellant’s case has not been subjected to excessive post-trial delay, and we per-
ceive no substantial harm to Appellant, prejudice to the interests of justice or
discipline, or erosion of this court’s ability to conduct our review or grant ap-
propriate relief that would move us to modify an otherwise fitting sentence.
11
United States v. Hardy, No. ACM 38937
III. CONCLUSION
The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. 11 Ar-
ticles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and sentence are AFFIRMED.
FOR THE COURT
KURT J. BRUBAKER
Clerk of the Court
11We note an error in the promulgating order with respect to the language of Specifi-
cation 9 of Charge II, where the order refers to “bodily hard” vice “bodily harm.” We
direct the publication of a corrected court-martial order to remedy this error.
12