United States v. Tolbert
ACM 39097
| A.F.C.C.A. | Jan 5, 2018Background
- Appellant was convicted at a general court-martial (plea) of abusive sexual contact for touching a sleeping roommate’s penis while deployed in Kuwait; adjudged sentence included BCD, confinement, reduction, and forfeitures.
- Trial completed on 17 February 2016; the SJAR was served 121 days later on 17 June 2016, and convening authority took action on 27 June 2016 — 131 days after trial completion.
- Appellant filed clemency requesting relief based on post-trial delay exceeding the 120-day Moreno standard; SJA recommended some relief, and the convening authority approved a BCD, five months confinement, and reduction to E-2.
- Government attributed the 11-day excess delay to the court reporter’s workload, Reserve duty, and training obligations.
- Appellant claimed prejudice because his confinement term was completed before action, depriving him of the ability to seek lesser confinement via clemency.
- The Air Force Court of Criminal Appeals reviewed de novo, found no Moreno-based due-process violation, and declined to grant additional Article 66(c) relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 11-day post-trial delay beyond Moreno presumptively unreasonable required relief | Appellant: 11-day delay violated Moreno and caused prejudice by preventing clemency for lesser confinement | Government: Delay attributable to court reporter workload and temporary duty; not sufficiently prejudicial or egregious | Court: Delay triggered Moreno review but did not constitute a due-process violation; no relief warranted |
| Whether Appellant suffered Moreno prejudice (oppressive incarceration, anxiety, or impaired rehearing) | Appellant: Completed confinement before action and lost ability to seek reduced confinement | Government: No evidence of the Moreno categories of prejudice | Court: No evidence of Moreno-listed prejudice; Appellant failed to show harm |
| Whether delay was so egregious to undermine institutional integrity absent demonstrated prejudice | Appellant: Excessive delay itself warrants relief | Government: Delay minor and explained; not egregious | Court: 11-day excess not so egregious to taint system fairness |
| Whether appellate court should grant additional Article 66(c)/Tardif relief despite no due-process violation | Appellant: Sought further sentence reduction under Article 66(c) factors | Government: Convening authority already granted partial relief; further relief unnecessary | Court: Considered Gay/Tardif factors and declined to exercise Article 66(c) authority for additional relief |
Key Cases Cited
- United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006) (establishes 120-day presumption triggering due-process review for post-trial delay)
- Barker v. Wingo, 407 U.S. 514 (1972) (four-factor speedy trial balancing test applied to post-trial delay)
- United States v. Toohey, 63 M.J. 353 (C.A.A.F. 2006) (delay without prejudice requires extreme egregiousness to show due-process violation)
- United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002) (appellate courts may grant sentence relief under Article 66(c) even absent due-process violation)
- United States v. Gay, 74 M.J. 736 (A.F. Ct. Crim. App. 2015) (factors to guide Article 66(c) relief for post-trial delay)
- United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) (framework for raising issues on appeal from guilty pleas)