Gonzalez & Waddington – Attorneys at Law

An accused has a right to timely review during the post-trial process.

Court Martial Lawyers – Alexandra González-Waddington & Michael Waddington Attorneys at Law

Diaz v. Judge Advocate General of the Navy , 59 M.J. 34, 37 (C.A.A.F. 2003).

The old, old rule: Dunlap v. Convening Authority , 48 C.M.R. 751 (C.M.A. 1974)(when an accused is continuously under restraint after trial, the convening authority must take action within ninety days of the end of trial or a presumption of prejudice arises).

The old rule: if prejudice, relief mandated.  United States v. Banks , 7 M.J. 92(C.M.A. 1976).

Back to the future: the evolution to United States v. Moreno ,          63 M.J. 129 (C.A.A.F.2006).

United States v. Tardif , 55 M.J. 666 (C.G. Ct. Crim. App. 2001), rev’d and remanded , 57 M.J. 219 (C.A.A.F. 2002), on remand , 58 M.J. 714 (C.G. Ct. Crim. App. 2003), aff’d , 59 M.J. 394 (C.A.A.F. 2004) (summary disposition). The appellant was sentenced to forfeiture of all pay and allowances, reduction to E1, three years confinement and a DD (the CA only approved two years of confinement). It took the government one year to process the record from sentencing to action and forwarding to the appellate court. Despite the delay, the CGCCA could find no prejudice that flowed to the accused from the post-trial delay and therefore did not grant any relief. Although the CGCCA did discuss the Army’s Collazo opinion, it concluded it was bound by the CAAF’s precedent regarding undue post-trial delay. On appeal, the CAAF noted that relief under Article 66(c), UCMJ, unlike Article 59(a), UCMJ, does not require a predicate showing of “error materially [prejudicial to] the substantial rights of the accused” and remanded the case to the CGCCA because of the lower court’s mistaken belief that it was “constrained” by Article 59(a), UCMJ. Applying principles of sentence appropriateness, CCAs can grant relief under Article 66(c) for unreasonable and unexplained post-trial delay that does not result in prejudice. On remand, the CGCCA agreed with appellant that “neither United States v. Collazo , [citation omitted], nor our higher court’s decision in this case requires a showing of uniquely personal harm in order to justify a sentence reduction, rather that the delay is to be considered along with the rest of the record in determining what sentence should be approved.” The CGCCA reduced appellant’s confinement for post-trial delay.

United States v. Jones , 61 M.J. 80 (C.A.A.F. 2005). Following his release from custody, appellant had applied for a position as a driver. He submitted to the court his own declaration and declarations from three officials of a potential employer that stated that he would have been considered for employment or actually hired if he had possessed a DD-214, even if his discharge was less than honorable. The employer was aware of appellant’s court martial for two specifications of unauthorized absence and two specifications of missing movement by design, in violation of Articles 86 and 87. The CAAF held that those un-rebutted declarations were sufficient to demonstrate ongoing prejudice beyond what would have been a reasonable time for post-trial proceedings. Whether appellant would have had a job for certain was not relevant. The court concluded that setting aside the bad-conduct discharge is a remedy more proportionate to the prejudice that the unreasonable post-trial delay had caused. Appellant was prejudiced by the facially unreasonable post-trial delay, which violated his right to due process. The appropriate remedy was disapproval of the bad-conduct discharge.

The current rule. On 11 May 2006, the CAAF released United States v. Moreno , 63M.J. 129 (C.A.A.F. 2006). The Moreno decision demonstrated that while the CAAF was not willing to return to an inflexible Dunlap -style 90-day rule, it was willing to apply heightened scrutiny and find due process violations in cases where post-trial processing crossed certain defined boundaries. In Moreno , the CAAF announced that it would apply a presumption of unreasonable delay to any case completed after 11 June 2006 that: (1) did not have initial action taken within 120 days of the completion of the trial; (2) was not docketed within 30 days of the convening authority’s action; or, (3) did not have the appellate review completed by the Court of Criminal Appeals within 18 months of docketing.

Once the post-trial delay in a case is determined to be unreasonable, the court must balance: (1) the length of the delay against; (2) the reason for the delay; (3) the appellant’s assertion of the right to timely review and appeal; and, (4) prejudice. This test represented an adaptation of the Barker v. Wingo , 407 U.S. 514 (1972), test that had previously only been used to review speedy trial issues in a Sixth Amendment context. While failure to meet the Moreno timelines triggers the Barker v. Wingo analysis, the government can still rebut the presumption of prejudice by showing that the delay was not unreasonable.

When balancing the length of the delay against the other factors, no single factor is required to find that the post-trial delay constitutes a due process violation.

An appellate court must evaluate prejudice to the appellant in light of three interests: (1) preventing oppressive incarceration pending appeal; (2) minimizing anxiety and concern over those convicted awaiting the outcome of their appeals; (3) limiting the possibility that a convicted person’s ground for appeal, and his or her defenses in case of reversal or retrial, might be impaired.

In United States v. Toohey , 63 M.J. 353 (C.A.A.F. 2006), the CAAF further refined the prejudice factor by announcing that when an appellant had not shown actual prejudice under the fourth factor of the Barker v. Wingo analysis, the appellate courts could still find a due process violation when, in balancing the other three factors, 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.” Id. at 362.

In Moreno , the CAAF suggested a non-exclusive list of relief that could include, but was not limited to: (1) day-for-day reduction in confinement or confinement credit; (2) reduction of forfeitures; (3) set aside portions of the approved sentence including a punitive discharge; (4) set aside of the entire sentence, leaving a sentence of no punishment; (5) limitation upon the sentence that may be approved by the convening authority following a rehearing; and, (6) dismissal of the charges and specifications with or without prejudice.

In United States v. Harrow , 65 M.J. 190 (C.A.A.F. 2007), the CAAF determined that even when the post-trial delay is facially unreasonable, if an appellate court is convinced that any error was harmless beyond a reasonable doubt, there is no need to do a separate analysis of each of the Barker v. Wingo factors.


United States v. Moreno , 63 M.J. 129 (C.A.A.F. 2006), on remand , No. 200100715, 2009 WL 1808459 (N-M. Ct. Crim. App. June 23, 2009) (unpublished), aff’d , 69 M.J. 36 (C.A.A.F. 2010) (summary disposition). Appellant was tried and convicted by members of rape in violation of Article 120, UCMJ. He was sentenced to reduction to E-1, TF, six years confinement, and DD. On appeal, appellant asserted that he was denied due process as a result of unreasonable post-trial delay. He was sentenced on 29 September 1999. The 746-page Record of Trial (ROT) was authenticated 288 days later. On 31 January 2001 (490 days after the court-martial), the CA took action. The case was docketed at NMCCA 76 days later. The NMCCA granted 18 defense motions for enlargement for time to file an appellate brief. From the end of his court-martial until the NMCCA rendered a decision, it took 1,688 days. In conducting an analysis of the case, the CAAF adopted the four factors set forth in Barker v. Wingo , 407 U.S. 514 (1972), which are: (1) length of the delay; (2) reasons for the delay; (3) assertion by Appellant of the right to a timely review and appeal; and (4) prejudice suffered by Appellant. During the post-trial process, each of these factors will be analyzed based on the circumstances. More importantly for practitioners, the CAAF established new post-trial processing guidelines as follows:

from sentence to action, the government has 120 days; (2) from action to docketing at the Court of Criminal Appeals, the government has 30 days; and, (3) from docketing at the Court of Criminal Appeals to appellate decision, the Court has 18 months to render a decision. Failure to meet these processing timelines serves to trigger the four-part Barker analysis. However, the government can rebut the presumption by showing that the delay was not unreasonable.

United States v. Toohey , 63 M.J. 353 (C.A.A.F. 2006). Appellant, contrary to his pleas, was convicted of rape and assault consummated by battery. On August 13, 1998, he was sentenced to reduction to E-1, forfeiture of all pay and allowances, confinement for twelve years and a dishonorable discharge. The transcript was 943 pages and the ROT was composed of eleven volumes. It took 2,240 days from the end of trial until the issuance of the NMCCA’s decision, a period of over six years. The NMCCA decision was set aside. The CAAF held that the appellant was denied his due process right to speedy post-trial and appellate review. They set forth the analytical framework using the four Barker v. Wingo factors of: (1) length of delay; (2) reasons for the delay; (3) assertion of the right to timely review and appeal; and (4) prejudice. The court determined that the first three factors weighed heavily in favor of the appellant. Moreover, CAAF ruled that where there is no finding of Barker prejudice, they will find a due process violation only when, in balancing the other three factors, the delay is so egregious that tolerating it would adversely affect the public’s perception of fairness and integrity of the military justice system. See also United States v. Harvey , 64 M.J. 13 (C.A.A.F. 2006).

United States v. Dearing , 63 M.J. 478 (C.A.A.F. 2006). A 1,794 day delay from sentence to first-level appellate review violated the appellant’s right to speedy post-trial relief because he suffered two forms of actual prejudice. First, he was denied timely review of a meritorious claim of legal error (an instructional error made at trial). Second, the lack of “institutional vigilance” by the government resulted in the loss of his right to free and timely professional assistance of detailed military appellate defense counsel. The CAAF granted relief in the form of cap on sentence at a rehearing ordered as a result of the instructional error.

United States v. Harvey , 64 M.J. 13 (C.A.A.F. 2006). Despite not showing prejudice under the fourth prong of the Barker analysis, the court found that a 2,031-day delay from trial to first-level appellate review was “so egregious that tolerating it would adversely affect the public’s perception of the fairness and integrity of the military justice system.” The CAAF granted relief in the form of a cap on sentence upon rehearing (the case had already been returned for rehearing on another basis).

United States v. Simon , 64 M.J. 205 (C.A.A.F. 2006). The government’s gross negligence in not mailing a 36-page ROT to the first-level appellate court for 572 days was a violation of the appellant’s right to speedy post- trial review. The CAAF returned the case to the NMCCA with direction that it may grant relief under its broad sentence appropriateness authority under Article 66(c) or, as a matter of law, under the Due Process Clause.

United States v. Canchola , 64 M.J. 245 (C.A.A.F. 2007). The CAAF specifically rejects the NMCCA’s attempt to create a generalized “excludable delay” concept similar to that used under RCM 707(c) to examine pretrial speedy trial issues.

United States v. Young , 64 M.J. 404 (C.A.A.F. 2007). The CAAF considered the circumstances and the entire record, and found that 1,637 days from trial through completion of ACCA review was harmless beyond a reasonable doubt.

United States v. Roberson , 65 M.J. 43 (C.A.A.F. 2007). The CAAF found that under the facts of this case, 1,524 days from trial to NMCCA review was harmless beyond a reasonable doubt.

United States v. Pflueger , 65 M.J. 127 (C.A.A.F. 2007). The NMCCA, in assessing the “unreasonable and unconscionable” post-trial delay in this case, did not approve the BCD. Sentence at trial was a BCD, confinement for four months, and reduction to E-1. CA’s action suspended BCD and all confinement in excess of 90 days. The CAAF found that this was not meaningful sentence relief because the BCD had already been remitted at the end of the suspension period.

United States v. Allison , 63 M.J. 365 (C.A.A.F. 2006). The CAAF found that under the facts of this case, 1,867 days from trial to NMCCA review was harmless beyond a reasonable doubt. (11) United States v. Rodriguez-Rivera , 63 M.J. 372 (C.A.A.F. 2006). The CAAF found that despite the six-year delay in appellate review in this case, any relief that would be actual and meaningful would be “disproportionate to the possible harm generated from the delay.” No relief was warranted or granted. (12) United States v. Yammine , 67 M.J. 717 (N-M. Ct. Crim. App. 2009). The NMCCA was able to assume, without deciding, that the appellant was denied speedy post-trial processing (214 days from sentencing to CA Action). The NMCCA then found that there was no prejudice and conclude that the error was harmless beyond a reasonable doubt. (13) United States v. Purdy , 67 M.J. 780 (N-M. Ct. Crim. App. 2009). The NMCCA found held that a 1,007-day delay between sentencing and docketing with the court was unreasonable, but appellant conceded no material prejudice from the delay. As a result, no relief was granted. The NMCCA also placed emphasis on the fact that even with the most “energetic and proactive post-trial processing” the appellant’s 150 days of confinement would have been completed before any review was possible. (14) United States v. Bush , 68 M.J. 96 (C.A.A.F. 2009). Appellant’s case file was “apparently lost in the mail for over six years.” It took over seven years to review a 143-page guilty plea. The CAAF finds this to be facially unreasonable. On the fourth Barker v. Wingo prong, the CAAF held that the appellant’s unsupported affidavit that he was denied employment at a store in Alabama was insufficient to establish prejudice. The CAAF holds that Allende does not shift the burden to him to establish that the due process violation was not harmless beyond a reasonable doubt. The burden remains upon the government. However, in an unsubstantiated affidavit case, the government’s burden of proving any due process violation was harmless beyond a reasonable doubt will be “more easily attained.” (15) United States v. Schweitzer , 68 M.J. 133 (C.A.A.F. 2009). Appellant asserted that the eight-year delay from the announcement of sentence until the NMCCA rendered its original opinion violated his due process rights. He submitted an unsupported affidavit claiming that he averaged less than $35,000 a year in annual income since he began his appellate leave, even though persons trained as he was normally earned between $79,000 and $95,000. Citing Bush , the CAAF held that there was no prejudice under the fourth Barker v. Wingo prong, and that the unsupported affidavit of the appellant allowed the government to more easily demonstrate that any violation of his due process right was harmless beyond a reasonable doubt. (16) United States v. Ashby , 68 M.J. 108 (C.A.A.F. 2009). More than eight-year delay from the announcement of sentence until the NMCCA rendered its original opinion violated the appellant’s due process rights. However, unsupported (and belated) affidavit claiming that his inability to travel due to his appellate leave status do not establish actionable harm arising from any delay. The CAAF held that under the totality of the circumstances, the post-trial delay was harmless beyond a reasonable doubt. Due to the lack of convincing evidence of prejudice in the record, the court will not presume prejudice from the length of the delay alone. (17) United States v. Mullins , 69 M.J. 113 (C.A.A.F. 2010). Convening authority did not take action for 363 days. After docketing, 448 days passed until the first contact between appellate defense counsel and the appellant. Over the course of the appeals, appellant had four separate appointed attorneys. Appellant also filed writs and motions pro se, including complaints about the delay in the appellate process. Appellant was eventually released from confinement. Two months later, he was allegedly denied unemployment insurance because he was on appellate leave and did not have a DD-214.

The CAAF skipped over most of the analysis and went right to the lack of prejudice. The appellant had three assertions of prejudice: 1) no unemployment benefits due to the lack of a DD-214; 2) anxiety because he had to register as a sex offender; and, 3) a timely appeal would have allowed him to seek legal custody of his children. The CAAF dismissed the latter two arguments since the appellant did not prevail on the merits of his appeal. Turning to the unemployment benefits, the CAAF held that while this may be prejudicial, it was not necessarily so in this case. The appellant provided no affidavits or direct proof that a person in appellant’s situation would have been eligible for unemployment benefits. Unlike United States v. Jones , 61 M.J. 80 (C.A.A.F. 2004), where the appellant provided affidavits from potential employers, this case was lacking of such proof of prejudice. Absent prejudice, the post-trial delay was harmless beyond a reasonable doubt. The CAAF denied relief. (18) United States v. Luke , 69 M.J. 309 (C.A.A.F. 2011). The court addressed the eleven-year delay between his conviction and the lower court decision (substantially due to a long USACIL investigation into a forensic chemist that worked on this case), and the appellant’s claims that he was prejudiced because the government destroyed the physical evidence and that he was denied United States citizenship due to his conviction. The court assumed that there was error and proceeded directly to the conclusion that the delay was harmless beyond a reasonable doubt. The court had not found merit in the substantive appeal, so the claims of prejudice were harmless. (19) United States v. Arriaga , 70 M.J. 51 (C.A.A.F. 2011). The government took 243 days from trial to convening authority action in this case. Much of this time was devoted to the record of trial. It took the court reporters 82 days to produce the record of trial, and it took the trial counsel 80 days to conduct errata on the record of trial. The remaining 81 days were spread out over the remaining steps in the post-trial process. In a 3-2 decision, the majority of the court found that the accused was denied his due process right to a speedy post-trial review and remanded the case to the AFCCA for appropriate relief. The court made note in dicta, however, that the government’s argument that the delay was “only” 123 days because the Moreno standard of 120 days should not count against the government was dismissed outright. The court made special note that the clock begins to run on the day that the trial is concluded and stops on the date of action. (Note: This point was specifically agreed to by the dissent, making this “dicta holding” a 5-0 part of the decision.) The primary analysis revolved around prejudice, and more specifically, oppressive incarceration pending appeal. The appellant’s original maximum release date (MRD) was March 25, 2012. After the AFCCA lowered his sentence to two years confinement, his MRD was March 25, 2010. The AFCCA decision was released on May 7, 2010, and the appellant was released on May 14, 2010. This amounted to 51 extra days in confinement that would not have been served had the government taken action within 120 days. The CAAF found that the government violated the appellant’s due process rights to a speedy post-trial review. The dissent found no due process violation and would have affirmed the AFCCA decision. The dissent spent time discussing that a presumptively unreasonable delay is necessarily dependent on the type of case. Overall, the dissent would not find a 243 day period from trial to action to be prejudicial under the facts and circumstances of this case, and as a result, deny relief on that basis. Even assuming prejudicial delay, the dissent would still refuse to grant relief on the grounds that oppressive incarceration was speculative at best. There is no guarantee that the AFCCA decision would have been released in the same amount of time, even if the government would have taken less than 120 days to action. Even barring that, there is no guarantee that the AFCCA would have reduced the appellant’s sentence to confinement by such a large amount had there been no post-trial delay in this case.

The ACCA and the exercise of its Article 66, sentence appropriateness authority –prejudice not required for relief from post-trial delay.

United States v. Collazo , 53 M.J. 721 (A. Ct. Crim. App. 2000). The ACCA came up with a new method for dealing with post-trial processing delay. In Collazo , the court granted the appellant four months off of his confinement because the government did not exercise due diligence in processing the record of trial. The court expressly found no prejudice.

United States v. Bauerbach , 55 M.J. 501 (A. Ct. Crim. App. 2001). The only allegation of error was undue delay in the post-trial process. Defense sought relief in accordance with Collazo . Applying Collazo , the ACCA found that the government did not proceed with due diligence in the post-trial process when it took 288 days to process a 384-page record of trial. Although no prejudice was established, the court granted relief under its Article 66, sentence appropriateness authority reducing confinement by one month. The court did provide valuable guidance to SJAs and Chiefs of Justice regarding what might justify lengthy post- trial delay (remembering that the court will test whether the government has proceeded with due diligence in the post-trial process based on the totality of the circumstances). “Acceptable explanations may include excessive defense delays in the submission of RCM 1105 matters, post-trial absence or mental illness of the accused, exceptionally heavy military justice post-trial workload, or unavoidable delays as a result of operational deployments. Generally, routine court reporter problems are not an acceptable explanation.” Bauerbach , 55 M.J. at 507.

United States v. Delvalle , 55 M.J. 648 (A. Ct. Crim. App. 2001). Ten months to prepare 459-page ROT was too long; sentence reduced by two months.

United States v. Maxwell , 56 M.J. 928 (A. Ct. Crim. App. 2002). Appellant was convicted at a GCM of desertion terminated by apprehension and wrongful appropriation of a motor vehicle. The adjudged and approved sentence was confinement for five months and a BCD. On appeal, appellant alleged undue delay in the post-trial processing of her case. Held: fourteen months from trial to action in a case where the ROT is only 384 pages is an excessive delay that warrants relief under Collazo and Bauerbach . Note: appellant failed to cite any prejudice resulting from the delay, however, the ACCA, in exercise of its Article 66, UCMJ, sentence appropriateness authority affirmed the findings and reduced the period of confinement from five to four months. See also United States v. Paz-Medina , 56 M.J. 501 (A. Ct. Crim. App. 2001) (one year delay in post-trial processing of 718-page ROT unreasonable and indicates a lack of due diligence). United States v. Hutchison , 56 M.J. 756 (A. Ct. Crim. App. 2002) (419 day delay from trial to action in an 81-page ROT case is unreasonable – 3-month confinement reduction despite the lack of prejudice to the accused).

United States v. Stachowski , 58 M.J. 816 (A. Ct. Crim. App. 2003). Delay of 268 days between sentence and action was not excessive and did not warrant relief for dilatory post-trial processing. Applying a totality of circumstances approach, the court considered the following: that the CA reduced the appellant’s confinement by thirty days because of the post-trial delay; while processing the appellant’s case, the installation only had one court reporter; the lone reporter doubled as the military justice division NCOIC; the backlog of cases awaiting transcription was significant; and the cases were transcribed on a “first in, first out” basis. Id . at 818.

United States v. Bodkins , 60 M.J. 322 (C.A.A.F. 2004). The CAAF rejected the ACCA’s conclusion that the accused is required to ask for timely post-trial processing, and that failure to do so waived any right to relief. The accused failed to object to dilatory post-trial processing in guilty plea case with a 74-page record of trial (ROT) (i.e., 252 days from sentence to action; 412 days from sentence to receipt of ROT by the ACCA). The CAAF noted that the responsibility to complete post-trial processing in a timely fashion lies with the CA and is not dependent on an accused’s request. The CAAF did, however, observe that the absence of a request from the defense is one factor a reviewing court may consider in assessing the impact of any delay in a particular case.

United States v. Garman , 59 M.J. 677 (A. Ct. Crim. App. 2003). Allegations of dilatory post-trial processing will be examined on a case-by-case basis applying a totality of the circumstances approach. Court refuses to adopt a bright line rule regarding post-trial delay. Held: appellant was not entitled to relief despite a post-trial delay of 248 days from sentence to action (i.e., 329 days less 81 days attributable to the defense; the military judge’s time to authenticate the record was government time). The factors the court considered were as follows: defense counsel’s objection to the post-trial delay was “dilatory,” occurring at day 324; after the defense objected, the government acted on the case expeditiously (i.e., in five days); although unexplained, the delay did not exceed 248 days; slow post-trial processing was the only post-trial error; and, the appellant failed to allege any prejudice or harm from the delay. Most significant in the court’s decision was the defense counsel’s lack of timely objection to the post-trial processing.

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