United States v. Pendergrass
ACM 38980
| A.F.C.C.A. | Aug 21, 2017Background
- Appellant (SSgt, age 30) was convicted at a general court-martial, consistent with his pleas, of violating a lawful general order (possession of child pornography in CENTCOM AOR), assault consummated by battery on a child under 16, and multiple specifications of possession, possession with intent to distribute, and distribution of child pornography. Sentence: dishonorable discharge, 10 years confinement, forfeitures, reduction to E‑1; approved by convening authority.
- Facts: while deployed in Afghanistan (Sept 2013–May 2014) Appellant possessed two images of child pornography; later (Dec 2012–Dec 2014) he distributed child pornography to multiple persons; also an incident of inappropriate touching of a 5‑year‑old stepsister’s son occurred in July 2014.
- Pretrial: Appellant was placed in pretrial confinement on 24 Dec 2014, arraigned 10 Apr 2015, and tried beginning 3 Aug 2015 (223 days in confinement). Defense challenged Article 10 speedy‑trial compliance, citing delays for forensic analysis, charging decision interval, and time from referral to trial.
- Post‑trial: Court‑martial concluded 5 Aug 2015; convening authority took action 25 Jan 2016 (173 days post‑trial), creating a facially unreasonable post‑trial delay under Moreno.
- Procedural motions: Appellant moved to dismiss/move relief for (1) pretrial speedy‑trial violation, (2) unreasonable post‑trial delay, (3) unreasonable multiplication/multiplicity of charges (seeking dismissal), and (4) unlawful discrimination in post‑trial confinement. Military judge denied relief; this appeal affirms.
Issues
| Issue | Appellant's Argument | Government's Argument | Held |
|---|---|---|---|
| Pretrial speedy‑trial (Article 10) | Delay (223 days in confinement) and specific periods (forensics, 30‑day charging lag, referral→trial) violated Article 10; Gov’t lacked reasonable diligence | Gov’t actively investigated, forensic work and coordination justified intervals; much of referral→trial delay was defense readiness | Affirmed — no Article 10 violation; Barker factors balanced for Gov’t (reasonable diligence) |
| Post‑trial delay (Moreno) | 173‑day delay to convening‑authority action violated due process and warrants relief | Delay was partly administrative (transcript review, record assembly, sensitive info handling), no prejudice shown | Affirmed — facially unreasonable delay existed, but no due‑process violation; no Tardif relief warranted |
| Unreasonable multiplication / multiplicity of charges | Certain specifications were unreasonably multiplied; Appellant sought dismissal | Military judge found some multiplicity and provided relief by merging offenses for sentencing rather than dismissal; Gov’t argued offenses were charged as distinct criminal acts | Affirmed — judge did not abuse discretion; merger for sentencing was appropriate relief (not dismissal) |
| Unlawful discrimination in post‑trial confinement | Appellant alleged sex‑preference‑based housing discrimination causing unduly harsh conditions | Command affidavit showed sexual preference not considered for housing; Appellant didn’t exhaust remedies under prisoner‑grievance/Art. 138 | Denied — no relief; allegation unsubstantiated and remedies not exhausted |
Key Cases Cited
- United States v. Mizgala, 61 M.J. 122 (C.A.A.F. 2005) (Barker factors applied in military Article 10 analysis)
- United States v. Cossio, 64 M.J. 254 (C.A.A.F. 2007) (Article 10 requires reasonable diligence; forensic delays can be justified)
- Barker v. Wingo, 407 U.S. 514 (1972) (four‑factor speedy trial balancing test)
- United States v. Thompson, 68 M.J. 308 (C.A.A.F. 2010) (use of Barker framework for Article 10 claims)
- United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006) (presumption of facially unreasonable post‑trial delay after 120 days to convening‑authority action)
- United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002) (Article 66(c) reduction for excessive post‑trial delay framework)
- United States v. Elespuru, 73 M.J. 326 (C.A.A.F. 2014) (limitations on convictions when offenses charged in the alternative)
- United States v. Campbell, 71 M.J. 19 (C.A.A.F. 2012) (standard of review and relief for unreasonable multiplication of charges)
- United States v. Quiroz, 55 M.J. 334 (C.A.A.F. 2001) (factors relevant to unreasonable multiplication/multiplicity analysis)