United States v. Lafontaine ( 2017 )

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39004
________________________
UNITED STATES
Appellee
v.
Jordin B. LAFONTAINE
Airman First Class (E-3), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 2 August 2017
________________________
Military Judge: Donald R. Eller, Jr. (arraignment); Joshua E. Kasten-
berg (trial).
Approved sentence: Bad-conduct discharge, confinement for 42 months,
total forfeiture of pay and allowances, reduction to E-1, and a repri-
mand. Sentence adjudged 9 October 2015 by GCM convened at Moody
Air Force Base, Georgia.
For Appellant: Major Lauren A. Shure, USAF; Captain Patricia En-
carnación Miranda, USAF; James S. Trieschmann, Jr., Esquire.
For Appellee: Major G. Matt Osborn, USAF; Major Mary Ellen Payne,
USAF; Gerald R. Bruce, Esquire.
Before MAYBERRY, HARDING, and BROWN, Appellate Military Judges.
Judge BROWN delivered the opinion of the court, in which Senior Judge
MAYBERRY and Senior Judge HARDING joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 18.4.
________________________
United States v. Lafontaine, No. ACM 39004
BROWN, Judge:
A general court-martial composed of a military judge sitting alone con-
victed Appellant, consistent with her pleas, of three specifications of conspir-
acy; one specification of false official statement; six specifications of wrongful
use and distribution of multiple controlled substances; six specifications of
conduct of a nature to bring discredit upon the armed services, including two
specifications of child endangerment, one specification of obstruction of jus-
tice, one specification of destruction of evidence, and two specifications of
communicating a threat; and one specification of bank fraud under 18 U.S.C.
§ 1334 in violation of Articles 81, 107, 112a, and 134 Uniform Code of Mili-
tary Justice (UCMJ), 10 U.S.C. §§ 881, 907, 912a, 934. Pursuant to a pretrial
agreement (PTA), the military judge, on the Government’s motion, dismissed
with prejudice a number of charges and specifications, 1 and the convening
authority approved the sentence as adjudged. 2
On appeal, Appellant asserts: (1) the military judge abused his discretion
when he accepted Appellant’s guilty plea to two specifications of child endan-
germent and one specification of communicating a threat in violation of Arti-
cle 134, UCMJ, 10 U.S.C. § 934; and (2) the Government’s violation of the
120-day standard for convening authority’s action warrants modest sentence
relief pursuant to United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002). Find-
ing no error that materially prejudices a substantial right of Appellant, we
affirm the findings and sentence.
I. BACKGROUND
Appellant used a variety of controlled substances including cocaine, lyser-
gic acid diethylamide, and marijuana over the course of several months with
some fellow Airmen. She also conspired to distribute cocaine and metham-
phetamine and conspired to commit bank fraud, facilitating the depositing of
$10,000.00 worth of bad checks and subsequent withdrawal of $10,000.00
1 These included one charge and its specification of willful and wrongful damage to
property in violation of Article 109, UCMJ, 10 U.S.C. § 909; two specifications of
wrongful possession of a controlled substance with intent to distribute in violation of
Article 112a, UCMJ, 10 U.S.C. § 912a; one charge and its specification of assault con-
summated by battery of a child under the age of 16 years in violation of Article 128,
UCMJ, 10 U.S.C. § 928; and one specification of wrongful solicitation of another to
commit an offense in violation of Article 134, UCMJ, 10 U.S.C. § 934.
2Appellant was credited with a total of 295 days of pretrial confinement credit: 98
days for illegal pretrial confinement and 197 days for pretrial confinement.
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United States v. Lafontaine, No. ACM 39004
from her bank account. Appellant then told her former supervisor her bank
account had been robbed and as a result, obtained grants in the amount of
$600 from the Air Force Aid Society. After learning she was under investiga-
tion, Appellant instructed a civilian involved in her drug ring to delete all of
the text messages concerning their illegal activity and to “factory reset” her
phone to destroy any electronic evidence on it. Appellant then “factory reset”
her own cellular phone to destroy evidence she believed the Air Force Office
of Special Investigations (AFOSI) was about to seize. After being interviewed
by AFOSI agents, Appellant believed A1C NG had “rolled over” on her and
her fellow drug users. She threatened to call her friends to teach A1C NG a
lesson and also to make him a sex offender by reporting that A1C NG had
sexually assaulted her. Finally, Appellant endangered the health and welfare
of her infant son, MH, by exposing him to unsafe living conditions at their
residence and also by leaving him outside in 50 degree temperatures and rain
over the course of seven consecutive hours when he was six weeks old.
II. DISCUSSION
A. Providency of Appellant’s Pleas
Appellant asserts the military judge abused his discretion when he ac-
cepted her guilty pleas to two specifications of child endangerment because
the guilty plea inquiry failed to establish that her conduct constituted culpa-
ble negligence or endangered her son. Similarly, she avers her guilty plea to a
specification of wrongfully communicating a threat was improvident as her
admissions failed to establish that her statements were intended as a threat.
A military judge’s decision to accept a guilty plea is reviewed for an abuse
of discretion. United States v. Blouin, 74 M.J. 247, 251 (C.A.A.F. 2015). “The
test for an abuse of discretion in accepting a guilty plea is whether the record
shows a substantial basis in law or fact for questioning the plea.” United
States v. Moon, 73 M.J. 382, 386 (C.A.A.F. 2014) (citing United States v. Pas-
sut, 73 M.J. 27, 29 (C.A.A.F. 2014)). The military judge must question the ac-
cused under oath about the offenses to ensure there is an adequate factual
basis for a guilty plea. Rule for Courts-Martial (R.C.M.) 910(e); see Article
45(a), UCMJ, 10 U.S.C. § 845(a). “It is an abuse of discretion for a military
judge to accept a guilty plea without an adequate factual basis . . . .” United
States v. Weeks, 71 M.J. 44, 46 (C.A.A.F. 2012). However, we look to the en-
tire record to determine whether there is a substantial basis to question the
guilty plea. United States v. Jordan, 57 M.J. 236, 238 (C.A.A.F. 2002).
“A plea is provident so long as Appellant was convinced of, and was able
to describe, all of the facts necessary to establish his guilt.” United States v.
Murphy, 74 M.J. 302, 308 (C.A.A.F. 2015) (citation ommitted). “If an accused
sets up matter inconsistent with the plea at any time during the proceeding,
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United States v. Lafontaine, No. ACM 39004
the military judge must either resolve the apparent inconsistency or reject
the plea.” Moon, 73 M.J. at 386 (quoting United States v. Hines, 73 M.J. 119,
124 (C.A.A.F. 2014)). We “must find a substantial conflict between the plea
and the accused’s statements or other evidence in order to set aside a guilty
plea. The mere possibility of a conflict is not sufficient.” Id. (citation om-
mited).
1. Appellant’s Pleas to Child Endangerment
Appellant was charged with two specifications of child endangerment in
violation of Article 134, UCMJ, 10 U.S.C. § 934. As charged, the elements of
the first specification are: (1) that Appellant had a duty for the care of MH;
(2) that MH was then under the age of 16 years; (3) that Appellant endan-
gered MH, his physical health, safety, and welfare by exposing him to a living
environment laden with animal excrement, soiled diapers, and food waste;
and (4) Appellant’s conduct under the circumstances was of a nature to bring
discredit upon the Armed Forces. Manual for Courts-Martial, United States
(2016 ed.) (MCM), pt. IV, ¶ 68a(b).
The second specification of child endangerment has identical elements to
the first, except the Government alleged Appellant endangered MH’s physical
health, safety, and welfare by leaving him strapped in an infant seat outside,
exposed to rain. For both specifications, the military judge provided Appel-
lant the following definitions during the Care 3 inquiry: The term “endanger”
means to subject one to reasonable probability of harm. The term “duty of
care” is determined by the totality of the circumstances and it may be estab-
lished by statute, regulation, or legal parent-child relationship. The term
“culpable negligence” is a degree of carelessness greater than simple negli-
gence; it is a negligent act or omission accompanied by a culpable disregard
for the foreseeable consequences to others of that act or omission. In the con-
text of this offense, the term culpable negligence may include acts, when
viewed in the light of human experience, which could foreseeably result in
harm for a child, even though such harm would not necessarily be the natural
and probable consequences of such acts or omissions. See MCM, pt. IV, ¶
68a(c). Appellant stated she understood both the elements and definitions the
military judge provided her and indicated she did not have any questions
about them.
3 United States v. Care, 40 C.M.R. 247 (C.M.A. 1969).
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United States v. Lafontaine, No. ACM 39004
In the first specification, Appellant takes issue with the third element of
the offense, stating her responses to the military judge’s questions failed to
establish she actually placed her son in a situation where there was a “rea-
sonable probability of harm” or that her actions amounted to “culpable negli-
gence.” Appellant believes her admissions indicated a possibility of harm that
could come to her son as a result of the unclean conditions of her home, but
there was no evidence admitted, and her statements did not offer, sufficient
proof of a reasonable probability that her son’s mental or physical health,
safety, or welfare were endangered. Appellant notes our superior court has
held that “a criminal conviction for child endangerment requires more than a
showing of irresponsible behavior coupled with speculation by the prosecution
about what possibly could have happened to a child as a consequence of an
accused’s conduct.” United States v. Plant, 74 M.J. 297, 300 (C.A.A.F. 2015)
(emphasis in original). The court made clear that a charge of child endan-
germent “requires proof that the accused’s conduct, either through design or
culpable negligence, resulted in a reasonable probability that the child would
be harmed.” Id. (emphasis in original).
During the Care inquiry, the military judge conducted a full inquiry into
Appellant’s understanding of the elements of child endangerment and had
Appellant describe in her own words all facts necessary to meet each element
of the offense, ascertaining Appellant was personally convinced of her own
guilt. Appellant stated that there were times when animal excrement, soiled
diapers and food waste were left in places MH could access. She relayed that
her own negligence caused the house she resided in with her son to be in a
condition where “MH might come into contact with unhealthy material,”
though Appellant never saw MH “come into contact with anything that
seemed disgusting or a direct threat to his health.” She admitted she did not
have visual contact with him all of the time and it was possible MH did come
into contact with items that could be “dangerous” to him. She agreed that
soiled diapers, food waste, and animal excrement were on the floor for a long
enough period of time that MH could have come in contact with them. She
further admitted that she had both a dog and a cat and did not remove their
excrement in a reasonable amount of time on some occasions. She also stated
she left ripped-open trash bags with food waste in them and soiled diapers on
the floor where MH could access them and that MH was able to crawl across
the floor during the charged time frame. Appellant stated there was nothing
preventing her from meeting a minimum threshold of a duty of care for MH.
The stipulation of fact, which Appellant agreed could be used in determin-
ing the providence of her plea, is also instructive as to the conditions Appel-
lant exposed MH to at their residence. In it, Appellant agrees:
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United States v. Lafontaine, No. ACM 39004
During the charged timeframe, [Appellant’s] home was at
times maintained in a noticeably unsanitary state. The floors
on which [MH] would crawl were extremely dirty and there
were piles of animal feces and animal urine throughout the ac-
cused’s home. In addition, [Appellant’s] home was observed on
multiple occasions with trash from ripped open trash bags,
dirty diapers, and spoiled food scattered throughout the house.
During the charged timeframe [Appellant] left [MH], on more
than one occasion, sitting in soiled, soggy diapers for hours at a
time. [Appellant] agrees and admits that the conditions to
which she exposed [MH] were unsanitary and posed a danger
to his physical health, safety, and welfare.
Based upon Appellant’s admissions in both the Care inquiry and stipula-
tion of fact, we are convinced Appellant’s conduct through her own culpable
negligence exposed her son to animal feces and urine, open trash bags, dirty
diapers, and that Appellant left her infant son in soiled diapers for hours at a
time. We are also convinced that Appellant’s conduct in exposing MH to these
hazards resulted in a “reasonable probability” that MH would be harmed. Id.
at 300.
Turning to the second specification, Appellant admitted during the Care
inquiry, that she and MH were at a party at a friend’s house on a rainy night
in November. Appellant was drinking and socializing outside with her friend
while MH slept in his car seat nearby from around 2300 until 0500 the next
day. MH was dressed in a “onesie,” pants and a shirt and was covered by a
light blanket. The temperature was around 50 degrees and though MH was
under a carport at times, due to the wind, he was rained on for brief periods
of time during the night. At the time, MH was six weeks old. Appellant ad-
mitted that keeping MH out in the damp, cold temperatures endangered his
physical health, safety and welfare and that MH could have gotten sick as a
result of being exposed to the cold and rain which she described as between a
mist and light rain. Appellant agreed that MH was exposed to the elements
from before midnight until after five the next morning, and that the child was
outside for a total of seven hours over the course of the night.
In the stipulation of fact, Appellant agreed that she left MH “strapped to
an infant seat outside, exposed to the rain” and that her actions amounted to
culpable negligence, endangering the physical health, safety and welfare of
MH. Though Appellant likens her case to the appellant in Plant, we are not
persuaded. In Plant, the court found there was “no reasonable probability of
harm” to the appellant’s 13-month-old son who was asleep in a crib in the ap-
pellant’s own residence, and did not awaken during a party that lasted five
hours, from 2000 to 0100 the next morning. Id. at 300. In this case, Appel-
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United States v. Lafontaine, No. ACM 39004
lant’s six-week-old baby was outside, exposed to 50 degree temperatures and
periodic rain for close to seven consecutive hours. We find Appellant’s culpa-
ble negligence in exposing MH to these conditions caused a “reasonable prob-
ability of harm” to MH’s physical health, safety, and welfare and supports a
conviction for child endangerment.
For both specifications, we find the military judge did not abuse his dis-
cretion when he accepted Appellant’s pleas as they met all of the elements of
child endangerment in violation of Article 134, UCMJ, 10 U.S.C. § 934, and
Appellant’s pleas are, therefore, provident.
2. Appellant’s Plea to Communicating a Threat
The elements for this offense are as follows: (1) That Appellant communi-
cated certain language expressing a present determination or intent to
wrongfully injure the person, property, or reputation of another person, pres-
ently or in the future; (2) That the communication was made known to that
person or to a third person; (3) That the communication was wrongful; and (4)
That, under the circumstances, the conduct of the accused was of a nature to
bring discredit upon the armed forces. See MCM, pt. IV, ¶ 110.b; United
States v. Rapert, 75 M.J. 164, 166–67 (C.A.A.F. 2016).
In Rapert, our superior court reaffirmed its “long embraced . . . objective
approach in determining whether a communication constitutes a ‘threat’ un-
der the first element of Article 134, UCMJ.” Id. at 168. The court stated that
“when analyzing whether a communication constituted a threat under this
first element, we have held that the existence of a threat should be evaluated
from the point of view of a reasonable person.” Id. (citations and quotations
omitted).
The court, however, held that “this objective approach to the notion of a
‘threat’ refers only to the first element of the offense and not to the third ele-
ment,” stating, “[t]he third element of this offense, which requires that a
threat be ‘wrongful,’ is properly understood to reference the accused’s subjec-
tive intent.” Id. at 169. Noting that “the proper legal framework for analyzing
whether an individual communicated a threat as proscribed by Article 134,
UCMJ, consists of both an objective prong and a subjective prong,” the court
restated, “for clarity’s sake,” the first and third elements of this offense using
the following bracketed elements:
(1) That the accused communicated certain language [that a
reasonable person would understand as] expressing a present
determination or intent to wrongfully injure the person, prop-
erty, or reputation of another person, presently or in the future;
. . . (3) That the communication was wrongful [in that the
speaker intended the statements as something other than a
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United States v. Lafontaine, No. ACM 39004
joke or idle banter, or intended the statements to serve some-
thing other than an innocent or legitimate purpose] . . . .
Id. (bracketed language in original).
Appellant asserts her statements under oath during her guilty plea were
insufficient to establish a factual basis for a finding of guilty with respect to
the third element of the offense, claiming for the first time on appeal, that the
evidence does not show she actually intended her words to be understood as a
threat.
Appellant stipulated that she stated to MM, “I’m going to call my friends
to come teach [N] a lesson.” During the Care inquiry, Appellant appears to
try to minimize or qualify the language of the statement, telling the military
judge:
during a conversation with [MM], I made a statement regard-
ing the possibility that if [her friends] found out, they might
physically harm A1C [NG]. I do not remember the precise
words that I used. . . . . I can see how the language I used
might have implied that I would or have been reasonably per-
ceived that way by [MM].
When the military judge pointed out that the stipulation of fact stated
Appellant told MM, “I’m going to call my friends to come teach [N] a lesson,”
Appellant again qualified her statement relaying that although her state-
ment would have frightened [A1C NG] and she was extremely upset with
him, the statement was “more along the lines of ‘I sure hope they don’t find
out because if they did find out, they could come and cause harm to [A1C
NG].’” Appellant then clarified that her statement was “implying that some
physical harm could come to him, but that I intended to make that happen,”
and when the military judge asked Appellant if she “intended to make it
happen,” Appellant responded “yes, sir.” Appellant then admitted she was not
joking when she made the statement and that she made the statement “out of
anger.”
After the initial inquiry was complete, trial counsel asked the military
judge to clarify the statement made by Appellant to ensure the language ex-
pressed a threat. Trial defense counsel replied: “I think the statement, as it’s
recalled by Airman Lafontaine, is an implication that she’s going to call [her
friends] to come teach him a lesson. It’s implied the way that she remembers
it, the way that [MM] remembers is that she came out and said, ‘I’m going to
call,’ and I think that those are close enough, or words to that effect, that co-
vers that difference in their memories. I don’t think Airman Lafontaine is sit-
ting here claiming that she didn’t say that, she’s just — she’s being honest
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United States v. Lafontaine, No. ACM 39004
that she remembers it a different way but understands, in the context, why
[MM] remembers it the way she does.”
Appellant then agreed that MM would testify that Appellant made the
statement as it was written in the stipulation of fact, and the military judge
told Appellant:
You may have remembered that you made a different . . . artic-
ulated different words and that’s fine, but what I’m now getting
at is the intent of the words that you articulated, it’s not the
. . . the law doesn’t require that you make a face-to-face threat
to Airman First Class [NG], but the law does require that you
did communicate words which were of a threatening nature to
commit either immediate or in the future some harm to Airman
[NG]. The threat may not necessarily be physical . . . . What
I’m getting at is you made a statement to [MM], was the state-
ment you made of a threatening nature so that either immedi-
ately or in the future there was some possibility of harm either
physical or mental or reputational that could have been com-
mitted against Airman [NG], that you have the intent, rather,
in making that statement of that becoming a possibility?
Appellant responded, “yes, sir.” The military judge went on to ask Appel-
lant:
And someone can state under the law, “I hope or you better
hope that so-and-so never finds out about this,” and the intent
is that that’s conveyed to the party or that it’s said to the party
and the party would be put in fear. Is that what you are testify-
ing to?
Appellant responded, “Yes, sir, that’s exactly it.” Appellant then stated
she hoped her statement would put NG in fear. When trial counsel indicated
more inquiry was needed, defense counsel stated, “Words can imply a threat.
Airman Lafontaine has explained you [sic] how the words that she recalls us-
ing imply a threat. The Charge . . . words to that effect in the Charge, I think,
covers the discrepancy here. I’m not sure that further inquiry is going to get
us anywhere.”
The military judge then again clarified with Appellant that MM would
testify Appellant made the statement as it was agreed upon in the stipulation
of fact, Appellant was upset with A1C NG when she made the statement, the
statement was not made in jest, MM could have told A1C NG about the
statement, if A1C NG heard the statement it would have scared him, and it
was Appellant’s intent to put A1C NG in fear when she made the statement.
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United States v. Lafontaine, No. ACM 39004
Based upon entire record, including the military judge’s extensive inquiry
with Appellant, Appellant’s admissions during the Care inquiry, and the
stipulation of fact, we find Appellant’s plea met all of the elements of com-
municating a threat. See Jordan, 57 M.J. at 238–239 (“We are similarly
mindful that a decision to plead guilty may include a conscious choice by an
accused to limit the nature of the information that would otherwise be dis-
closed in an adversarial contest . . . . When this Court has addressed a bare
bones providence inquiry, we have not ended our analysis at the edge of the
providence inquiry but, rather, looked to the entire record to determine
whether the dictates of Article 45, RCM 910, and Care and its progeny have
been met.”) (emphasis added).
It is uncontested that Appellant made a statement to MM as to her
“friends” potentially harming A1C NG and despite Appellant’s attempts to
qualify the statement, a reasonable person would understand it to express a
present intent to wrongfully injure A1C NG either presently or in the future.
Similarly, Appellant’s threat was wrongful. Though Appellant purported not
to remember her exact words, she agreed her statement “implied” physical
harm would come to A1C NG and that she intended to “make it happen.”
While the words used by Appellant are clearly important, so are the sur-
rounding circumstances in determining Appellant’s intent in making the
statement. See United States v. Brown, 65 M.J. 227, 231–32 (C.A.A.F. 2007)
(holding that divorcing words from the surroundings in which they were
communicated and from their impact on the intended subject is illogical and
unnatural; legal analysis of a threat must take into account both the words
used and the surrounding circumstances).
Here, Appellant was admittedly angry at A1C NG because she believed he
had “rolled over” by informing law enforcement about Appellant’s and her
friends’ extensive drug use. Appellant admitted several times she was not
joking when she made the statement. Appellant also explained why her con-
duct was service discrediting. Though she now asserts her statements at trial
were insufficient to establish her subjective intent to communicate a threat
and that she was “simply venting” when she spoke to MM, the record shows
no less than seven occasions where she admitted under oath that her intent
was in fact to threaten harm to A1C NG. We find her plea to this specifica-
tion provident and no abuse of discretion by the military judge for accepting
it.
B. Post-Trial Processing
There is a presumption of unreasonable post-trial delay when a convening
authority fails to take action within 120 days of trial. United States v. More-
no, 63 M.J. 129, 142 (C.A.A.F. 2006). Appellant asserts that because the con-
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United States v. Lafontaine, No. ACM 39004
vening authority exceeded this standard by 12 days, we should grant her
modest sentence relief. We disagree.
There are two steps to our analysis of whether Appellant is entitled to re-
lief. First, we determine whether the delay in this case amounts to a denial of
Appellant’s due process right to speedy post-trial review and appeal. Id. at
135. Next, even if we find no due process violation, we also consider whether
this court should exercise its power under Article 66(c), UCMJ, 10 U.S.C. §
866(c), to grant relief for excessive post-trial delay. United States v. Tardif, 57
M.J. 219, 224 (C.A.A.F. 2002).
We consider four factors in determining whether post-trial delay amounts
to a violation of due process rights: (1) the length of the delay; (2) the reasons
for the delay; (3) the appellant’s assertion of his [or her] right to a timely re-
view; and (4) prejudice to the appellant. Moreno, 63 M.J. 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)). “No single factor is required for finding a due
process violation and the absence of a given factor will not prevent such a
finding.” Id. at 136 (citing Barker v. Wingo, 407 U.S. 514, 533 (1972)). How-
ever, when an appellant has not shown prejudice from the delay, there is no
due process viola-tion unless the delay is so egregious as to “adversely affect
the public’s percep-tion of the fairness and integrity of the military justice
system.” United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006).
As noted above, the lapse of time between sentence and convening author-
ity’s action exceeded the Moreno standard by 12 days, establishing a facially
unreasonable delay for this portion of the post-trial process. Therefore, the
next question we consider is whether Appellant has been prejudiced by the
delay. Toohey, 63 M.J. at 362. Appellant states she “became extremely de-
pressed, saw a marked increase in her anxiety, suffered panic attacks, had
inappropriate emotional reactions, and gained approximately 20 pounds”
while awaiting the convening authority’s decision on her clemency. The Gov-
ernment’s explanation for the delay in obtaining action includes the court re-
porter’s overall workload, the complexity of the record, the need to resend let-
ters to the victims in the case, and a 10-day extension granted to Appellant
for her counsel to submit clemency matters. Balancing the remaining factors,
though we do not find the Government’s explanation for the delay in violation
of the Moreno standard compelling, we note Appellant did not assert her
right to timely review, and we are convinced the delay was not so egregious
as to undermine the appearance of fairness and integrity within the military
justice system. Therefore, we find no due process violation.
Next, we consider whether Article 66(c), UCMJ, relief pursuant to Tardif
is appropriate. 57 M.J. at 224. We are guided by factors enumerated in Unit-
ed States v. Gay, 74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J.
11
 United States v. Lafontaine, No. ACM 39004
264 (C.A.A.F. 2016), with no single factor being dispositive. 4 Again, we note
the Government’s explanation for the delay, though clearly not intentional, is
not overly compelling. Nevertheless, considering the remaining Gay factors,
we conclude no extraordinary exercise of our Article 66(c), UCMJ, authority
is warranted. We discern no particular harm to Appellant from the delay. The
delay has also not lessened the disciplinary effect of Appellant’s sentence. Fi-
nally, the delay has not adversely affected this court’s ability to review Appel-
lant’s case or grant her relief, if warranted. Taken as a whole, the circum-
stances do not move us to reduce an otherwise appropriate sentence.
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. Ar-
ti-cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the
find-ings and the sentence are AFFIRMED.
FOR THE COURT
KURT J. BRUBAKER
Clerk of the Court
4 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 wheth-
er there is any evidence of bad faith or gross indifference to the overall post-trial pro-
cessing 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-
pel-lant 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
evi-dence 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.
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