United States v. Livak
80 M.J. 631
| A.F.C.C.A. | 2020Background
- Appellant pled guilty at a special court-martial to one specification each of wrongful use and wrongful possession of LSD; members sentenced him to a bad-conduct discharge, 10 days hard labor (without confinement), reduction to E-1, and a reprimand; the convening authority approved a sentence reducing rank only to E-2.
- Trial concluded 27 June 2019; defense clemency submitted 11 July 2019; convening authority action occurred 22 July 2019; entry of judgment signed 29 July 2019.
- Court reporter certified the record on 7 August 2019 but the record was not assembled until 29 August 2019; the case was docketed with the Air Force Court of Criminal Appeals on 17 September 2019.
- Appellant sought sentence-appropriateness relief, claiming due process violation for post-trial delay — specifically that the record was not docketed within 30 days of convening authority action as required by United States v. Moreno.
- The court recognized that post-2019 R.C.M. procedures change the post-trial timeline (convening authority action no longer the final pre-docketing step) and adopted an aggregate 150-day Moreno-derived threshold from sentencing to docketing for assessing facially unreasonable delay.
- Applying that 150-day standard, the court found the 82-day interval from trial end to docketing was well within the threshold, found no prejudice or due-process violation, declined to grant Article 66(d) relief, and affirmed findings and sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Appellant is entitled to sentence-appropriateness relief for post-trial delay | Appellant: Moreno requires docketing within 30 days of convening authority action; that rule was violated so relief is warranted | Government: Post-2019 R.C.M. procedures make the 30-day Moreno rule inapplicable; use an aggregate 150-day standard from sentencing to docketing; here only 82 days elapsed and no prejudice | Court: Applied 150-day aggregate Moreno standard; 82 days < 150, no facially unreasonable delay, no due-process violation or prejudice, no relief; affirmed |
Key Cases Cited
- United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006) (established Moreno thresholds for presuming facially unreasonable post-trial delay)
- United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002) (describing appellate authority under Article 66(d) to grant relief for post-trial delay)
- United States v. Gay, 74 M.J. 736 (A.F. Ct. Crim. App. 2015) (discussing factors appellate courts consider when granting relief for post-trial delay)
- United States v. Toohey, 63 M.J. 353 (C.A.A.F. 2006) (noting prejudice must be shown unless delay is so egregious it undermines public perception of military justice)