United States v. Bredschneider

65 M.J. 739, 2007 CCA LEXIS 320, 2007 WL 2404546
CourtNavy-Marine Corps Court of Criminal Appeals
DecidedAugust 23, 2007
DocketNMCCA 200700025
StatusPublished
Cited by3 cases

This text of 65 M.J. 739 (United States v. Bredschneider) is published on Counsel Stack Legal Research, covering Navy-Marine Corps Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Bredschneider, 65 M.J. 739, 2007 CCA LEXIS 320, 2007 WL 2404546 (N.M. 2007).

Opinion

KOVAC, Judge.

A military judge sitting as a general court-martial convicted the appellant, pursuant to his pleas, of larceny, transporting a machine-gun in interstate commerce, and possessing a firearm not registered to him in the National Firearms Registration and Transfer Record, in violation of Articles 121 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 921 and 934. The appellant was sentenced to confinement for 18 months, forfeiture of all pay and allowances, reduction to pay grade E-l, and a bad-conduct discharge. The convening authority approved the sentence as adjudged.

In his sole assignment of error, the appellant alleges that his right to speedy post-trial review was materially prejudiced by the seven-year delay in post-trial processing. As relief, the appellant asks the court to disapprove the findings and sentence.

We have carefully reviewed the record of trial and pleadings of counsel. We find that the post-trial delay in this case violated the appellant’s due process rights and that harm resulted. Additionally, we find that the appellant’s plea to the Additional Charge of possessing a firearm is not supported by law and fact and it will be set aside. After reassessing the sentence, we will grant relief for the due process violation as explained in further detail below.

Post-Trial Delay

In a post-trial delay analysis, the first question to resolve is whether the particular delay is “facially unreasonable.” United States v. Young, 64 M.J. 404, 408 (C.A.A.F.2007)(citing United States v. Moreno, 63 M.J. 129, 136 (C.A.A.F.2006)). In Moreno, our superior court recognized a presumption of unreasonable delay under the following circumstances:

For courts-martial completed thirty days after the date of this opinion [11 May 2006], we will apply a presumption of unreasonable delay ... where the action of the convening authority is not taken within 120 days of the completion of trial. We will apply a similar presumption of unreasonable delay for courts-martial completed [741]*741thirty days after the date of this opinion where the record of trial is not docketed by the service Court of Criminal Appeals within thirty days of the convening authority’s action.

Id. at 142. In this case, the presumption of unreasonable delay does not apply because the appellant’s court-martial was completed prior to the Moreno decision. Nevertheless, we find that the extreme delay in this case (2,571 days from completion of the appellant’s court-martial (10 January 2000) until docketing with this court (24 January 2007)) is facially unreasonable. Once we determine the delay is facially unreasonable, a further due process review is necessary. Young, 64 M.J. at 408.

Our due process review involves the consideration and balancing of the four factors set forth in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972):(1) the length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right to a timely appeal; and (4) the prejudice to the appellant. United States v. Jones, 61 M.J. 80, 83 (C.A.A.F.2005); Toohey v. United States, 60 M.J. 100, 102 (C.A.A.F.2004). Each factor must be analyzed and balanced to determine if it favors the Government or the appellant. Moreno, 63 M.J. at 136. No single factor is necessarily dis-positive. Id. If this analysis leads to the conclusion that the appellant’s due process right to a speedy post-trial review has been violated, “we grant relief unless this court is convinced beyond a reasonable doubt that the constitutional error is harmless.” Young, 64 M.J. at 409 (quoting United States v. Toohey, 63 M.J. 353, 363 (C.A.A.F.2006)).

The first and second factors under this analysis clearly weigh against the Government. As noted above, the appellant was sentenced on 10 January 2000. His case then lingered for over seven years prior to docketing with this court on 24 January 2007. The length of this delay is unreasonable and excessive. The Government provides no explanation for the delay but concedes that it is unreasonable and without excuse.

Under the third factor, we find no evidence in the record that the appellant asserted his right to a timely appeal prior to his affidavit, dated 26 February 2007, which was filed in support of his brief to this court. Accordingly, we find that the third factor weighs against the appellant, however, not heavily. See Moreno, 63 M.J. at 138 (finding that although the appellant did not assert his right to timely review, this factor would not weigh heavily against him due to the Government’s post-trial review responsibilities).1

As to the fourth factor, prejudice, the appellant asserts that he was denied employment opportunities at Meijer’s, Lowes, and Wal-Mart and was denied unemployment assistance because he did not have a DD-214. The appellant contends that he is still without a job and must rely on part-time jobs in his father’s construction company. However, the appellant’s claim of prejudice is diminished by numerous documents in the record indicating that upon release from confinement, he intended to work solely for his father’s construction company and assist the family in managing various rental properties. See, e.g., Defense Counsel’s Clemency Request of 1 Nov 2000 (indicating in ¶4 the appellant had a job waiting for him at his father’s construction company); Appellant’s Clemency Letter (undated) (indicating in ¶ 4 that he was supposed to “take over the family business”); Mrs. Bredschneider’s Clemency Letter of 18 Sep 2000 (indicating in ¶ 3 that the family was counting on the appellant to assume responsibilities for the family business including management of rental properties). In his affidavit, executed on 26 February 2007, the appellant indicates that his father’s business is still functioning and provides him with part-time job opportunities. Given this evidence, we find the absence of a DD-214 to have had no prejudicial impact [742]*742upon the appellant.2

After weighing the four Barker factors, we conclude that the appellant has not suffered a Barker-type post-trial due process violation. However, even without specific prejudice, a due process violation may result if the “delay is so egregious that tolerating it would adversely affect the public’s perception of the fairness and integrity of the military justice system.” Toohey, 63 M.J. at 362. We conclude that over seven years to docket this 77-page, fairly uncomplicated record of trial is egregious. Moreover, the lack of any explanation by the Government for this extraordinarily long delay weighs heavy in our analysis. Tolerating such a delay would adversely affect the public’s perception of the high standards of our military justice system. Accordingly, we find that the appellant was denied his due process right to speedy review and appeal, even without a specific showing of significant prejudice.

Having found constitutional error in this case, we must now subject this case to a harmless error analysis in order to determine what, if any, relief is required. United States v. Rodriguez-Rivera, 63 M.J. 372, 386 (C.A.A.F.2006).

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Bluebook (online)
65 M.J. 739, 2007 CCA LEXIS 320, 2007 WL 2404546, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-bredschneider-nmcca-2007.