United States v. Bush

66 M.J. 541, 2008 CCA LEXIS 84, 2008 WL 680216
CourtNavy-Marine Corps Court of Criminal Appeals
DecidedMarch 11, 2008
DocketNMCCA 200700137
StatusPublished
Cited by3 cases

This text of 66 M.J. 541 (United States v. Bush) 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. Bush, 66 M.J. 541, 2008 CCA LEXIS 84, 2008 WL 680216 (N.M. 2008).

Opinion

PUBLISHED OPINION OF THE COURT

GEISER, Senior Judge:

A military judge sitting as a general court-martial convicted the appellant, consistent with his pleas, of attempting to escape from custody, failure to obey a lawful order, fleeing apprehension, resisting apprehension, two specifications of reckless driving, two specifications of assault with a dangerous weapon, and striking a superior noncommissioned officer, in violation of Articles 80, 92, 95, 111, and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 880, 892, 895, 911, and 928. The appellant was sentenced to a dishonorable discharge, confinement for six years, total forfeiture of pay and allowances, and reduction to pay grade E-l. Pursuant to a pretrial agreement, the convening authority (CA), inter alia, suspended all confinement in excess of 24 months for a period of six months from the date of his action.

This case is before us a second time following our 25 July 2007 order returning the record to the Judge Advocate General of the Navy for submission to an appropriate CA for proper post-trial processing in compliance with Rules foe Courts-Martial 1105-1107, Manual foe United States(2005 ed.). Following our order, proper post-trial processing was accomplished and the CA approved the sentence as adjudged. The appellant declined to provide any additional pleadings for consideration.

The appellant’s sole assignment of error asserts unreasonable post-trial processing delay. We have examined the record of trial, the appellant’s brief and assignment of error, and the Government’s response. We conclude that the appellant was denied his due process right to speedy post-trial processing and that he was prejudiced by the delay. We will take appropriate action in our decretal paragraph. Following our action, we find the findings and sentence are correct in law and fact and that no error materially prejudicial to the substantial rights of the appellant remains. Arts. 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a) and 866(c).

Post-Trial Delay

The appellant’s court-martial concluded on 5 January 2000. The CA originally acted on the ease on 16 November 2000. The case was not docketed with this court until 13 February 2007. A delay of over seven years to review a 143-page guilty plea record of trial is facially unreasonable. See United States v. Moreno, 63 M.J. 129 (C.A.A.F.2006). Such substantial delay triggers a due process review.

We consider four factors in determining if post-trial delay violates the appellant’s due process rights: (1) length of the delay; (2) reasons for the delay; (3) the appellant’s assertion of the right to a timely appeal; and (4) prejudice to the appellant. United States v. Jones, 61 M.J. 80, 83 (C.A.A.F.2005)(citing Toohey v. United States, 60 M.J. 100, 102 (C.A.A.F.2004)). As the length of the delay in this case is “facially unreasonable” we must balance the length of the delay against the other three factors. Id.

As noted above, there was a delay of over seven years from the date of trial to the date this case was finally docketed with this court. Regarding the second factor, reasons for the delay, the Government provided the affidavit of Captain D.M. Steinberg, USMG, Review Officer-In-Charge, Legal Service Support Section, 1st Marine Logistics Group, Camp Pendleton, California, who asserts that the original record was mailed to this court on 12 February 2001. There is no evidence in the record to contradict or support the Captain’s claim. As noted above, we returned the record for proper post-trial processing on 25 July 2007. It was redocketed with this court on 10 January 2008.

Notwithstanding Captain Steinberg’s claim that the record was forwarded to this court, but apparently lost in the mail for over six years, there is no evidence the CA expended any effort in that time to ensure the record was properly received by this court. Rudimentary tracking and receipt confirmation procedures by the mailing command might have shortened the delay considerably. [543]*543Mailing delay is “ ‘the least defensible of all’ post-trial delays.” Moreno, 63 M.J. at 137 (quoting United States v. Dunbar, 31 M.J. 70, 73 (C.M.A.1990)). We, therefore, find the Government’s explanation for the delay to be inadequate. This factor weighs heavily in favor of the appellant.

With respect to the third factor, the appellant submitted an unsworn declaration stating that approximately two years after being released from confinement, he repeatedly contacted both his command and the Navy-Marine Corps Appellate Leave Activity (ÑAMALA), inquiring about the instant case. The unsworn declaration further states that he did so because he needed his DD Form 214 to maintain his employment.1 The Government responds with no evidence beyond an assertion that the appellant’s claims are “without supporting proof’ and are “unverified and speculative”.2

While the appellant has not submitted additional “supporting proof’ beyond his own declaration, we do not find his claim to be entirely “unverified and speculative.” “In evaluating whether the appellant has sufficiently met his burden of proof, we will accept the appellant’s post-trial affidavit as true.” United States v. Scalarone, 52 M.J. 639, 544 (N.M.Ct.Crim.App.1999), aff'd, 54 M.J. 114 (C.A.A.F.2000). The declaration is factually adequate on its face to state a claim of legal harm, the record does not eompellingly demonstrate the improbability of those facts, and the Government does not offer any evidence to the contrary. See United States v. Ginn, 47 M.J. 236 (C.A.A.F.1997). The appellant’s declaration included specific information that he called particular Government offices regarding the processing of his case. We find that the appellant’s declaration offers “adequate detail to give the Government a fair opportunity to rebut” the appellant’s contention. United States v. Gosser, 64 M.J. 93, 98 (C.A.A.F.2006). In this regard, the Government, undeniably in the best position to verify or refute the appellant’s claim that the calls were made, offers no evidence to the contrary.

Finally, regarding the fourth factor, the appellant’s declaration asserts he was denied employment by the Costco store in Huntsville, Alabama, three to four years after his trial, specifically because he lacked his final discharge papers (DD Form 214). In the past, we have found a lack of prejudice when an appellant fails to supply sufficient information to permit the Government to validate or dispute his claimed prejudice. In this instance, the appellant identified a specific store in a specific town during a specific timeframe. He specifically asserts the reason he was denied employment was directly tied to dilatory post-trial processing of his court-martial.

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Related

United States v. Bush
68 M.J. 96 (Court of Appeals for the Armed Forces, 2009)
United States v. Bush
67 M.J. 508 (Navy-Marine Corps Court of Criminal Appeals, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
66 M.J. 541, 2008 CCA LEXIS 84, 2008 WL 680216, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-bush-nmcca-2008.