Recent AFCCA Opinion: United States v. Shouey

The AFCCA affirmed the findings and sentence of Airman First Class Jenna E. Shouey, finding no error materially prejudicial.  

Shouey opinion here

     A general court-martial found Appellant guilty, pursuant to her pleas and a pretrial agreement, for failure to obey a lawful order; various specifications for drug possession, and one specification for prostitution. The military judge sentenced Appellant to a bad-conduct discharge, confinement for 10 months, forfeiture of all pay and allowances, reduction to E-1, and a reprimand. 
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    The issue in this case is whether the Appellant was denied her right to a speedy trial under UCMJ Article 10.[1]The AFCCA found the military judge properly denied Appellant’s motion, and, after reviewing the entire record of the proceeding, found there was no factual or legal insufficiencies, and the sentence was appropriate.[2]

     The total period of pretrial confinement was 139 days, which, while significant, the number and type of her charges lead the court to determine that there was little chance of prejudice. Additionally, the charges in this case spanned military and civilian jurisdictions and ultimately, the Government brought these charges to trial with reasonable diligence.

    Appellant raises three time periods when the Government allegedly failed to take immediate steps to try her: (1) a 61-day period from pretrial confinement to preferral of charges; (2) a 21-day period from preferral until completion of the preliminary hearing; and (3) a 37-day period between the preliminary hearing and service of the referred charges. 

     The 61-day period of delay from pretrial confinement to preferral of charges was determined to be “facially excessive” but reasonable because the Government was actively preparing its case. During that time the CMJ had conducted meetings with the AFOSI, trial counsel completed a draft of the charges and forwarded that analysis to the convening authority’s legal office, and the analysis was returned to trial counsel with inputs from the GCMCA’s legal staff. The charges were then preferred on October 16, 2018. Appellant provides no further support for her contention that the length of time it took investigators to conduct these investigative steps was unreasonable.

    The second 21-day delay, from preferral of charges to completion of the preliminary hearing officer’s report, was also not unreasonable. The Government identified a preliminary hearing officer who was suitable and available to conduct a hearing, but the Appellant’s trial defense counsel was not available from for that next two-week period. The hearing was conducted on the first duty day after the trial defense counsel was available. 

      Finally, the 37-day delay from completion of the preliminary hearing to the service of charges that the convening authority referred, was also not unreasonable. There were various communications between trial counsel and trial defense counsel, Appellant initiated PTA discussions with the Government, trial defense counsel signed and served a formal PTA offer and emailed the Prosecution with recommendations regarding referral. The convening authority referred charges, and Appellant renewed her demand for a speedy trial. We find no unreasonable delay during this period.

      Appellant claims, in addition to the delays, that she experienced poor conditions of confinement, such as no access to exercise and no natural sunlight. She further claims she was suffering anxiety due to her inability to manage her finances, and that her ability to assist in her defense was substantially affected by her confinement because she was unable “to call [her] attorney on a non-recorded line.” The court granted her motion to consider this declaration regarding prejudice[3]as being exacerbated by the 139-day delay, but the court did not find a causal connection between those difficulties and the delay. There was no evidence that these conditions are different from those that a typical accused individual would experience and there is nothing to suggest that Appellant’s trial defense counsel was impaired at trial or in pretrial preparations by the time it took the Government to bring Appellant to trial.


[1]The United States Supreme Court established a four-factor test to determine reasonable diligence: (1) the length of the delay; (2) the reasons for the delay; (3) whether the appellant made a demand for a speedy trial; and (4) prejudice to the appellant. No one factor is necessary or sufficient to find that a person has been deprived of their right to a speedy trial, and generally, “short periods of inactivity are not fatal to an otherwise active prosecution.”

[2]When a military member is placed in confinement prior to trial, “immediate steps” must be taken to inform her of the specific wrong of which she is accused.

[3]To assess prejudice, the Supreme Court identified three interests: (1) preventing oppressive pretrial incarceration; (2) minimizing the accused person’s anxiety and concern; and, (3) limiting the possibility that the defense will be impaired. 
 

Kate Ricart

Intern