United States v. Bischoff
2015 WL 894476
A.F.C.C.A.2015Background
- A1C Akio A. Bischoff pled guilty at a general court-martial to wrongful use, distribution, and introduction of MDMA; original 2010 sentence included BCD, 1 year confinement, forfeitures, reduction to E‑1.
- This court affirmed findings but set aside the sentence because the military judge violated R.C.M. 912(g)(1); the case was remanded for a sentence rehearing in 2014. The rehearing panel (officer members) adjudged BCD, forfeitures, reduction to E‑1, and a reprimand (no confinement).
- On rehearing appeal Bischoff argued (1) the military judge abused discretion by denying a defense challenge for cause to member Maj BB (implied bias), and (2) his right to speedy appellate review was violated because extensive appellate delay resulted in him serving confinement that the rehearing did not impose. He also raised delay in forwarding the record post‑rehearing.
- The SJAR for the rehearing incorrectly listed and attached 2010 PDS and AF Form 1359 rather than the 2014 versions admitted at the rehearing; the court considered whether that error prejudiced Bischoff.
- The court rejected the implied‑bias challenge to Maj BB and found no colorable prejudice from the SJAR attachment error, but found the overall post‑trial appellate delay warranted sentence relief under Article 66(c) and therefore reduced the approved sentence to affirm only the bad‑conduct discharge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Implied bias re: panel member Maj BB | Maj BB should have been excused because his prior sentencing experience created a predisposition toward confinement | Military judge: Maj BB can consider prior experience as baseline but will follow judge’s instructions and consider this case on the merits | Denied challenge for cause; no implied bias—member’s answers showed willingness to consider full range of punishment |
| SJAR attachments error (2010 forms attached, 2014 forms excluded) | Error in SJAR attachments deprived convening authority of correct post‑trial information | Government: convening authority had adequate awareness of 2014 facts; no prejudice | Plain and obvious error but no colorable showing of prejudice; no relief required |
| Appellate delay from docketing to initial decision (Moreno standard) | Delay ~960 days (over 18 months) violated Moreno and caused oppressive incarceration because rehearing removed confinement | Government attributed some delay to filings and court workload; asserted no prejudice | Delay violated Moreno but, under Barker factors, was harmless beyond a reasonable doubt (no oppressive incarceration, no particularized anxiety, no impairment) |
| Delay forwarding record after rehearing (docketing 41 days after action) / Tardif relief | 41‑day delay exceeds 30‑day Moreno benchmark; Bischoff seeks relief under Article 66(c) for excessive post‑trial delay | Government offered reasons but court noted administrative shortcomings and brevity of record | Court grants sentence relief under Article 66(c) (Tardif): approved sentence reduced to only the bad‑conduct discharge |
Key Cases Cited
- United States v. Bagstad, 68 M.J. 460 (C.A.A.F. 2010) (objective standard for implied bias and public appearance of fairness)
- United States v. Clay, 64 M.J. 274 (C.A.A.F. 2007) (liberal grant mandate and examples of disqualifying member answers)
- United States v. Martinez, 67 M.J. 59 (C.A.A.F. 2008) (members must not be predisposed or inelastic regarding punishment)
- United States v. Kho, 54 M.J. 63 (C.A.A.F. 2000) (plain‑error review for untimely SJAR comment and prejudice standard)
- United States v. Scalo, 60 M.J. 435 (C.A.A.F. 2005) (forfeiture vs. waiver regarding SJAR matters)
- Moreno v. United States, 63 M.J. 129 (C.A.A.F. 2006) (Moreno standard for presumptively unreasonable appellate delay and Barker analysis)
- Barker v. Wingo, 407 U.S. 514 (U.S. 1972) (four‑factor speedy‑trial/post‑trial delay balancing test)
- United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002) (Article 66(c) authority to grant sentence relief for excessive post‑trial delay)
- United States v. Arriaga, 70 M.J. 51 (C.A.A.F. 2011) (benchmarks are not free periods; personnel/administrative issues not legitimate excuses for delay)