United States v. Bush

67 M.J. 508, 2008 CCA LEXIS 313, 2008 WL 3889871
Navy-Marine Corps Court of Criminal Appeals·Decided August 19, 2008·No. NMCCA 200700137·Published·Cited by 3 cases

Opinion

[509]*509PUBLISHED OPINION OF THE COURT

GEISER, Senior Judge:

Previously, a panel of this court found that the appellant had suffered employment prejudice as a direct result of the over seven-year delay in reviewing his 143-page guilty plea record of trial, and consequently held that his due process right to speedy post-trial review had been violated. In view of the employment prejudice, we further found that the Government failed to meet its burden to demonstrate that the due process violation was harmless beyond a reasonable doubt.

Having reconsidered the case en banc, we now conclude the appellant failed to meet his burden of establishing employment prejudice. We find that the delay in this case “is so egregious that tolerating it would adversely affect the public’s perception of the fairness and integrity of the military justice system.”1 Consequently, we again hold that the delay in this case violates the appellant’s due process right to speedy post-trial review. In the absence of specific prejudice, however, we now hold that the Government has met its burden to demonstrate that the error was harmless beyond a reasonable doubt.

We conclude that the findings and sentence are correct in law and fact and that no error materially prejudicial to the substantial rights of the appellant was committed. Articles 59(a) and 66(c), Uniform Code of Military Justice, 10 U.S.C. §§ 859(a) and 866(c).

Procedural History of the Case

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 noncommis-sioned 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, forfeiture of all 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.

The appellant’s court-martial concluded on 5 January 2000. The CA originally acted on the case eleven months later, on 16 November 2000. The ease, however, was not docketed with this court until over six years later, on 13 February 2007. On 25 July 2007, having found errors in the post-trial processing of the case, the court returned the record of trial to the Judge Advocate General of the Navy for submission to an appropriate CA for proper post-trial processing in compliance with Rules fc® CouRts-Mabtial 1105-1107, Manual for Courts-Martial, United States (2000 ed.).2 Subsequently, proper post-trial processing was accomplished, the CA once again approved the sentence as adjudged, complied with the terms of the pretrial agreement, and returned the case for completion of appellate review. The case was redocketed with the court on 10 January 2008. The appellant’s sole assignment of error asserted unreasonable post-trial processing delay.

Post-Trial Delay

A delay of over seven years to review a 143-page guilty plea record of trial is facially unreasonable. Although this case predates our superior court’s decision in United States v. Moreno, 63 M.J. 129 (C.A.A.F 2006), we nonetheless find that 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.3 As the length of the delay in this case — over seven years— is “facially unreasonable” we must balance [510]*510the length of the delay against the other three factors.4

Regarding the second factor, the Government provided the affidavit of Captain (Capt) D.M. Steinberg, USMC, Review Officer-In-Charge, Legal Service Support Section, 1st Marine Logistics Group, Camp Pendleton, California. Capt Steinberg asserts that the original record was mailed to the Navy-Marine Corps Appellate Review Activity on 12 February 2001. There is no evidence in the record to contradict or support Capt Stein-berg’s assertion.

Notwithstanding Capt Sternberg’s statement that the record was forwarded for appellate review 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 received and docketed with this court. Rudimentary tracking and receipt confirmation procedures by the mailing command might have shortened the delay considerably. Mailing delay is the “ ‘least defensible of all’ post-trial delays.”5 We find the Government’s explanation inadequate to justify the delay. This factor weighs heavily in favor of the appellant.

With respect to the third factor, the appellant submitted an unsworn declaration under penalty of perjury stating that approximately two years after being released from confinement, he “repeatedly contacted both his command as well as [the Navy-Marine Corps Appellate Leave Activity], inquiring about his case.”6 The appellant further states that he did so “because he needed his DD Form 214 to maintain his employment.”7 The Government responds with no evidence beyond an assertion that the appellant’s claims are “without supporting proof” and are “unverified and speculative.”8

While the appellant has not submitted additional supporting evidence beyond his own declaration, we do not share the Government’s view that his claim is speculative. First, the appellant’s declaration is itself some evidence on the appellant’s claim. Further, the appellant’s declaration identified particular Government offices he contacted about his case during a particular timeframe. We find the appellant’s declaration offers “adequate detail to give the Government a fair opportunity to rebut” the appellant’s contention that he asserted his right to speedy post-trial review.9 The Government, undeniably in the best position to verify or refute the appellant’s claims, has provided no evidence to the contrary. On balance, we find this factor favors the appellant.

Regarding the fourth factor of prejudice, the appellant’s declaration asserts that three to four years after his trial, he was denied employment as a fork-lift operator by the Costco store in Huntsville, Alabama.

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United States v. Bush, 67 M.J. 508, 2008 CCA LEXIS 313, 2008 WL 3889871 (N.M. 2008).

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