United States v. Simon
ACM 39114
| A.F.C.C.A. | Jun 7, 2017Background
- Appellant pleaded guilty at a general court-martial pursuant to a pretrial agreement to multiple specifications of wrongful use/introduction of oxycodone and wrongful use of cocaine.
- Military judge sentenced Appellant to a bad-conduct discharge, 12 months confinement, and reduction to E-1; convening authority approved.
- The Record of Trial (ROT) was authenticated on 3 July 2016; the Government served defense counsel on 18 July and served Appellant on 19 July (a 16-day gap after authentication).
- Appellant submitted a clemency request on 27 July asking for removal of the punitive discharge and reduction of confinement; he did not complain about the ROT service delay or allege trial errors.
- Convening authority denied relief on 28 July. Appellant appealed, arguing the delay between ROT authentication and service violated Article 54(d) and constituted prejudicial post-trial error.
- The court considered plain-error and Article 66(c)/Tardif relief alternatives and ultimately affirmed findings and sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 16-day delay between ROT authentication and service violated Article 54(d) and constituted post-trial error | Delay violated Article 54(d) because a copy must be given as soon as authenticated | Any such delay did not prejudice Appellant; no timely objection or claim of harm was made | Court assumed (without deciding) possible error but found no prejudice shown; no relief granted |
| Whether plain-error review is met | Delay was plain and obvious and prejudiced Appellant by impairing memory for clemency | Appellant failed to show colorable prejudice or identify issues he would have raised | Plain-error third prong not met; speculative memory loss insufficient |
| Whether Article 66(c)/Tardif relief for post-trial delay is warranted | Appellant argued delay merited sentence reduction under court’s equitable powers | Government argued delay was not extraordinary and did not warrant relief under totality of circumstances | Court declined Tardif relief; delay not sufficient to merit sentence reduction |
| Whether findings and sentence are correct in law and fact | Appellant sought sentence relief only tied to alleged ROT service delay | Government urged affirmance of findings and sentence | Findings and sentence affirmed; no material prejudice to substantial rights |
Key Cases Cited
- LeBlanc v. United States, 74 M.J. 650 (A.F. Ct. Crim. App.) (proper completion of post-trial processing is reviewed de novo)
- Sheffield v. United States, 60 M.J. 591 (A.F. Ct. Crim. App.) (standard for post-trial processing review)
- Scalo v. United States, 60 M.J. 435 (C.A.A.F.) (errors forfeited absent plain error showing)
- Kho v. United States, 54 M.J. 63 (C.A.A.F.) (plain error framework for forfeited claims)
- Gilbreath v. United States, 57 M.J. 57 (C.A.A.F.) (appellant must say what he would have submitted to rebut government matters)
- Tardif v. United States, 57 M.J. 219 (C.A.A.F.) (Article 66(c) may provide relief for post-trial delay without showing actual prejudice)
- Toohey v. United States, 63 M.J. 353 (C.A.A.F.) (appropriateness inquiry for Article 66(c) relief; no single ‘‘most extraordinary’’ requirement)