The AFCCA affirmed the findings and sentence of Senior Airman Troy A. Nolen, after finding actual UCI, but prejudice in Appellant's UCI issue. The court also considered two other issues not raised by Appellant.
Nolen opinion here.
Senior Airman Troy Nolen (Appellant), a maintainer stationed at Joint Base Pearl Harbor-Hickam, was charged and convicted, contrary to his pleas, of one specification of wrongful use of cocaine on divers occasions in violation of Article 112a, UCMJ. The court-martial sentenced Appellant to a bad-conduct discharge, hard labor without confinement for three months, and reduction to the grade of E-1. The convening authority reduced the sentence to 30 days of hard labor without confinement and otherwise approved the sentence. Appellant argues, however, that his defense was negatively impacted by the fact that he was mistreated by his chain of command prior to trial.
In April 2018, Appellant’s urine sample tested positive for 3,501 ng/mL of benzoylecgonine (BZE), a metabolite of cocaine. Appellant was then ordered to provide another urine sample on 23 May 2018, which tested positive for 8,782 ng/mL of BZE. Appellant’s commander, after he was notified of Appellant’s first positive urinalysis test, held a commander’s call in the maintainers’ workplace where he told the Airmen that they were “piece of s[**}t maintainers” and that “we have a couple of people who shove coke up their noses and smoke weed.” The commander then changed the work schedule from working 15 days a month to 5 days a week. Rumor subsequently spread throughout the squadron that Appellant was the one whom the commander suspected of drug use and some reportedly blamed Appellant for the schedule change.
During the investigation into Appellant's drug use, NCOs in Appellant’s chain of supervision directed his supervisor to keep Appellant busy, which resulted in Appellant being tasked with busy work “that could be seen by other members in the unit” in addition to his regular duties. Appellant was also directed to attend appointments on his days off and if he attended an appointment during his duty day, Appellant was required to make up the missed time.
The issue raised by Appellant was whether the findings and sentence must be set aside, and the sole charge dismissed with prejudice, in order to negate the effects of unlawful command influence by Appellant’s chain of command. The court also considers two additional issues not raised by Appellant: (1) whether the military judge erred by failing to instruct the court members orally in sentencing to vote on proposed sentences in order from least severe to most severe; and (2) whether Appellant is entitled to relief for facially unreasonable appellate delay.
The court found no error materially prejudicial to Appellant’s substantial rights and affirmed the findings and sentence.
The court found that Appellant met the initial burden of showing “some evidence” of unlawful command influence that resulted in unfair proceedings. The court also found that the government successfully rebutted the allegation and “there was no intolerable strain upon the public’s perception of the military justice system beyond a reasonable doubt.” The court, reasoned that there was no intolerable strain by citing the following two facts. First, that Airmen from Appellant’s unit testified or entered character letters on Appellant’s behalf. Second, “[t]he record provides no indication that any potential witness refused to provide Appellant a character statement or otherwise cooperate in his defense as a result of leadership’s actions.”
(EDITOR: this needs to be changed. How did the Court "not address" lack of prejudice, when you go on to show what the Court relied on when determining there was no prejudice. You may disagree with their conclusion, but it seems wrong to say they did not address it.)
2. Instruction on Voting Procedures in Sentencing
When orally providing the jury instructions for voting on sentence, the military judge mistakenly omitted the instruction for the members to vote on the proposed sentences in order from least to most severe. However, he did explain that the members were required to order proposed sentences from least to most severe. Neither party raised an objection to the military judge's plain error. Notably, the military judge later provided written instructions, which included the omission from the oral instructions, but by this time, the members had already completed their deliberation. The military judge still required all members to review the written instructions and affirm that they did not have any questions or reconsiderations.
Rule for Courts-Martial 1005(f) states: “Failure to object to an instruction or to omission of an instruction before the members close to deliberate on the sentence constitutes waiver of the objection in the absence of plain error.” Citing their powers under Art. 66, UCMJ, the Court acknowledged that they may apply a waiver, or pierce a waiver to correct a legal error. The Court noted that in this specific case, Appellant's failure to object to a missing portion of the oral instruction was hardly an intentional relinquishment or abandonment of a right. However, even noting that the waiver was not intentional or an abandonment, the Court found no prejudice in the military judge's plain error. The military judge, after committing this plain error, corrected his previous oral instructions with written instructions, and then allowed the panel to take a break to review his written instructions. In conjunction with Appellant not alleging prejudice in the military judge's plain error, the Court was satisfied that these corrective actions did not prejudice the Appellant.
3. Post-Trial Delay
Appellant’s case was docketed with the court on 28 December 2018; therefore, the time it took for the court to render this decision exceeded the 18 months threshold for a presumptively unreasonable post-trial delay establish by CAAF in United States v. Moreno. 63 M.J. 129 (C.A.A.F. 2006). Finding no prejudice to Appellant’s due process right to timely post-trial review, as there was no evidence, Appellant experienced oppressive incarceration, impairment of the Defense at a rehearing, or that Appellant experience particularized anxiety and concern, the court determined that the delay was not “so egregious as to adversely affect the perceived fairness and integrity of the military justice system” and concluded that relief would not be appropriate in this case.
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