United States v. Lee

UNITED STATES, Appellee

v.

Jonathan E. LEE, Captain
U.S. Marine Corps, Appellant

No. 07-0725

Crim. App. No. 200600543

United States Court of Appeals for the Armed Forces

Argued December 17, 2013

Decided March 7, 2014

RYAN, J., delivered the opinion of the Court, in which BAKER,
C.J., and ERDMANN, STUCKY, and OHLSON, JJ., joined.

Counsel

For Appellant: Captain Jason R. Wareham, USMC (argued); Colonel
John G. Baker, USMC, and Eugene R. Fidell, Esq. (on brief).

For Appellee: Major Paul M. Ervasti, USMC (argued); Brian K.
Keller, Esq. (on brief); Lieutenant Commander Keith B. Lofland,
JAGC, USN.

Military Judges: Steven F. Day, Nicole K. Hudspeth, and Jeffrey
M. Sankey

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Lee, 07-0725/MC

Judge RYAN delivered the opinion of the Court.

On September 24, 2013, this Court granted review of the

following issue:

WHETHER THE [NMCCA] ERRED IN FINDING NO DUE PROCESS
VIOLATION WHERE 2,500 DAYS ELAPSED BETWEEN SENTENCING
AND REMOVAL OF APPELLANT’S NAME FROM THE TEXAS SEX
OFFENDER REGISTRY.

In many senses this case casts the military justice system

in a far from favorable light. By the time Appellant’s court-

martial concluded on May 4, 2005, Appellant’s military counsel

was prosecuting other cases under the supervision of the

prosecutor in Appellant’s own court-martial. Most of the post-

trial appellate delay now claimed -- all but 141 days –- stemmed

from appeals and fact-finding hearings1 related to this

situation.

The fact remains, however, that at the end of the appellate

process for the initial court-martial, the United States Navy-

Marine Corps Court of Criminal Appeals (NMCCA) set aside the

findings and sentence, and authorized a rehearing for all

charges and specifications that were not already dismissed, as a

“‘needed prophylaxis’” to protect the rights to counsel and due

process. See United States v. Lee, 70 M.J. 535, 541–42 (N–M.

Ct. Crim. App. 2011) (citation omitted).

1
These fact-finding hearings were held in accordance with United
States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967).

2
United States v. Lee, 07-0725/MC

In turn, and as relevant to our decision, rather than

proceed to a rehearing on the remaining specifications,

Appellant entered into a pretrial agreement to plead guilty to

two reformulated specifications of conduct unbecoming an officer

and a gentleman, in violation of Article 133, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. § 933 (2012). Thereafter,

and almost immediately after the military judge denied his

motion at the rehearing for appropriate relief for post-trial

appellate delay arising from the earlier trial, Appellant

unconditionally pleaded guilty to two offenses under Article

133, UCMJ. Under these circumstances, he waived any speedy

appellate review claim relating to the post-trial period

preceding the rehearing, including any prejudice from the

additional time spent on the Texas Public Sex Offender Registry

prior to the waiver. See United States v. Bradley, 68 M.J. 279,

281 (C.A.A.F. 2010) (“An unconditional plea of guilty waives all

nonjurisdictional defects at earlier stages of the

proceedings.”); United States v. Joseph, 11 M.J. 333, 335

(C.M.A. 1981).

Moreover, applying the four-factor analysis of United

States v. Moreno, 63 M.J. 129, 135 (C.A.A.F. 2006), the

remaining 141-day period of review between the sentencing

portion of Appellant’s rehearing and the convening authority’s

action did not amount to a due process violation.

3
United States v. Lee, 07-0725/MC

The decision of the NMCCA is affirmed.

I. FACTS

Between January 9, 2004, and January 12, 2004, Appellant, a

captain, attended a Professional Military Education course in

Londonderry, Ireland. Over the course of the weekend, Appellant

engaged in nonconsensual sexual conduct with five different

enlisted Marines.

At the court-martial for the charges stemming from this

conduct, Appellant was represented by civilian counsel –- acting

as lead counsel –- and detailed military counsel. Prior to the

conclusion of Appellant’s court-martial, his military counsel

was transferred to duties in the prosecution office. By the

time Appellant’s court-martial concluded on May 4, 2005,

Appellant’s military counsel was prosecuting other cases under

the supervision of the prosecutor in Appellant’s court-martial.2

While civilian and military counsel generally informed Appellant

that his military counsel’s new prosecution duties might create

a potential conflict of interest, they did not inform Appellant

that his military counsel would be directly supervised by the

prosecutor in his court-martial. Appellant did not learn of

this fact until he was already serving his term of confinement.

2
As Appellant acknowledged in his brief, the U.S. Marine Corps
has implemented a number of rule changes to avoid this worrisome
practice in the future. See Brief for Appellant at 29 n.85,
United States v. Lee, No. 07-0725 (C.A.A.F. Oct. 24, 2013).

4
United States v. Lee, 07-0725/MC

On May 4, 2005, following mixed pleas, a military judge

sitting alone as a general court-martial convicted Appellant of

one specification of conduct unbecoming an officer and a

gentleman, in violation of Article 133, UCMJ, three

specifications of burglary, in violation of Article 129, UCMJ,

10 U.S.C. § 929 (2000), three specifications of fraternization,

in violation of Article 134, UCMJ, 10 U.S.C. § 934 (2000), and

five specifications of indecent assault, also in violation of

Article 134, UCMJ. The adjudged sentence provided for

confinement for a period of three years, forfeiture of all pay

and allowances, and a dismissal. The convening authority

approved the adjudged sentence and ordered all but the dismissal

to be executed.

Once convicted, Appellant served his term of confinement --

less good time and earned confinement credit -- from May 4,

2005, until July 12, 2007. Upon release from confinement,

Appellant’s indecent assault convictions required notifying

state and local law enforcement agencies for purposes of sex

offender registration. On July 20, 2007, he was entered on the

Texas Public Sex Offender Registry.

Appellant sought relief before the NMCCA on several

grounds, including “multiplicious” charges and sufficiency of

the evidence. United States v. Lee, No. NMCCA 200600543, 2007

CCA LEXIS 233, at *2, 2007 WL 1890683, at *1 (N-M. Ct. Crim.

5
United States v. Lee, 07-0725/MC

App. June 26, 2007) (unpublished). Appellant also argued that

his trial defense counsel failed to disclose a conflict of

interest, namely that he was acting as a prosecutor in another

case while representing Appellant. Id. at *2, 2007 WL 1890683,

at *1. On June 26, 2007, the NMCCA dismissed the specification

of conduct unbecoming an officer and a gentleman as

“multiplicious” of the burglary and indecent assault charges,

and one of the indecent assault specifications as factually

insufficient. Id. at *2–*3, 2007 WL 1890683, at *1. It found,

however, that there was no actual conflict of interest that

adversely affected counsel’s performance. Id. at *17, 2007 WL

1890683, at *7. After reassessing the sentence, the NMCCA

affirmed the sentence as approved by the convening authority.

Id. at *24, 2007 WL 1890683, at *9.

This Court then granted review to determine whether a

conflict of interest existed that resulted in an uninformed

selection of counsel. United States v. Lee, 66 M.J. 387, 388

(C.A.A.F. 2008). On June 13, 2008, unable to resolve the issue

based on the record as then developed, this Court remanded the

case for a fact-finding hearing pursuant to DuBay. Id. at 390.

On July 28, 2011, after three separate DuBay hearings,3 the

NMCCA set aside the findings and sentence and authorized a

3
See Lee, 70 M.J. at 536 (explaining the reasons for the
different hearings).

6
United States v. Lee, 07-0725/MC

rehearing for all charges and specifications that were not

already dismissed. Lee, 70 M.J. at 542. Although the NMCCA

found no prejudicial impact from any ineffectiveness by counsel,

it explained that its result was a “‘needed prophylaxis’” to

protect the rights to counsel and due process. Id. at 541

(citation omitted).

Due to the substantial passage of time since the charged

conduct in early 2005, by the time the NMCCA authorized

Appellant’s rehearing in 2011, several witnesses had either

forgotten important details of the events or requested not to

testify entirely. As a result, Appellant negotiated a pretrial

agreement with the convening authority to plead guilty to two

reformulated specifications of conduct unbecoming an officer and

a gentleman, in violation of Article 133, UCMJ, in exchange for

the withdrawal of all other charges and specifications. Nowhere

in this agreement did Appellant condition his pleas on reserving

the right to review of any pretrial motions pursuant to Rule for

Courts-Martial (R.C.M.) 910(a)(2). The convening authority

accepted Appellant’s offer to plead guilty and signed the

pretrial agreement on March 1, 2012.

Subsequently, on March 7, 2012, Appellant filed a motion

for appropriate relief on the grounds of unreasonable post-trial

delay. The military judge denied this motion on March 12, 2012,

noting the “constant motion” during the appellate process and a

7
United States v. Lee, 07-0725/MC

general lack of prejudice.

The same day, the military judge reviewed the provisions of

the pretrial agreement with Appellant and accepted his guilty

pleas to the two specifications under Article 133, UCMJ. The

adjudged sentence provided for confinement for a period of nine

months, forfeiture of all pay and allowances for nine months,

and a reprimand.4 On August 1, 2012, 141 days after resentencing

-- including twenty days for a defense-requested extension --

the convening authority disapproved the reprimand pursuant to

the pretrial agreement but approved the remainder of the

sentence and ordered it executed.

II. NMCCA DECISION

On appeal under Article 66, UCMJ, 10 U.S.C. § 866 (2012),

Appellant asserted errors relating to post-trial delay and

confinement credit. On February 21, 2013, the NMCCA found no

due process violation and approved the findings and sentence.

United States v. Lee, 72 M.J. 581, 585 (N-M. Ct. Crim. App.

2013). It explained its result as follows:

The procedural history of this case and fact that we
are reviewing this case following a rehearing readily

4
Appellant received 799 days of confinement credit pursuant to
United States v. Allen, 17 M.J. 126 (C.M.A. 1984), and 123 days
pursuant to United States v. Pierce, 27 M.J. 367 (C.M.A. 1989).
The Pierce credit was awarded for the Government’s failure to
act promptly to remove Appellant from the Texas Public Sex
Offender Registry after his indecent assault convictions were
set aside by the NMCCA on July 28, 2011.

8
United States v. Lee, 07-0725/MC

dissuades us from adopting the appellant’s position.
Having been afforded appropriate and continuing due
process, involving the extensive litigation of complex
issues and the generation of a record on appeal that
dwarfs the original record of trial, resulting in
meaningful relief from error, we are being asked to
characterize the timeline necessitated by the
affording of due process as a due process violation.
We decline to so hold and likewise decline to grant
relief per our authority under Article 66(c).

Id. at 584.

III. DISCUSSION

Before we reach the question whether Appellant’s due

process rights were violated in light of the substantial

appellate delay in his case, the granted issue, we must first

determine whether Appellant waived review of this delay. We

conclude that he waived review of all but the 141 days of delay

between the sentencing portion of the rehearing and the

convening authority’s action.

A.

We have long recognized the general proposition that a plea

of guilty “waives nonjurisdictional errors that occurred in the

earlier stages of the proceedings.” Joseph, 11 M.J. at 335; see

also United States v. Lopez, 20 C.M.A. 76, 77–78, 42 C.M.R. 268,

269–70 (1970). In Bradley, we reaffirmed this general rule, but

observed that R.C.M. 910(a)(2) creates an exception where an

accused enters into a conditional guilty plea. 68 M.J. at 281–

82. However, because “there is no constitutional right to enter

9
United States v. Lee, 07-0725/MC

such a plea . . . it follows that compliance with the regulation

is the sole means of entering a conditional plea and preserving

the issue on appeal.” Id.

There is no evidence in the record that Appellant

requested, or that either the Government or the military judge

consented to, the entry of a conditional plea; therefore, the

exception created by reference to R.C.M. 910(a)(2) does not

apply here. See R.C.M. 910(a)(2) (requiring “the approval of

the military judge and the consent of the Government”).

Moreover, Appellant’s guilty plea occurred after a motion for

relief for the same post-trial appellate delay he complains of

here was fully briefed, argued, and denied. In fact, it was

immediately following the military judge’s ruling, and without

any attempt to preserve the appellate delay issue for appeal,

that Appellant pleaded guilty to the two Article 133, UCMJ,

specifications.

Nevertheless, Appellant argues that guilty plea waiver

should not apply where, as here, he alleged a violation of his

right to due process under the Fifth Amendment based on

appellate delay occurring prior to his unconditional guilty

pleas at a rehearing. Reply Brief for Appellant at 2, United

States v. Lee, No. 07-0725 (C.A.A.F. Dec. 5, 2013). Our

precedent is to the contrary.

10
United States v. Lee, 07-0725/MC

“While the waiver doctrine is not without limits, those

limits are narrow and relate to situations in which, on its

face, the prosecution may not constitutionally be maintained.”

Bradley, 68 M.J. at 282 (citing United States v. Broce, 488 U.S.

563, 574–76 (1989) (double jeopardy); Menna v. New York, 423

U.S. 61, 61–63 (1975) (double jeopardy)). Such limits do not

arise where an appellant merely complains of “‘antecedent

constitutional violations’” or a “‘deprivation of constitutional

rights that occurred prior to the entry of the guilty plea,’”

Blackledge v. Perry, 417 U.S. 21, 30 (1974) (citation omitted),

rather they apply “where on the face of the record the court had

no power to enter the conviction or impose the sentence.”

Broce, 488 U.S. at 569; see also United States v. Schweitzer, 68

M.J. 133, 136 (C.A.A.F. 2009) (identifying limitations

recognized by this Court to the guilty-plea-waiver doctrine

where specifications are facially duplicative or fail to state

an offense). That is not this case.

Nor does this case fall within the narrow limitation for

litigated speedy trial motions alleging a violation of Article

10, UCMJ, 10 U.S.C. § 810 (2012), recognized in United States v.

Mizgala, 61 M.J. 122, 124 (C.A.A.F. 2005), and reaffirmed in

United States v. Tippit, 65 M.J. 69, 75 (C.A.A.F. 2007). See

Article 10, UCMJ (providing that “[w]hen any person subject to

this chapter is placed in arrest or confinement prior to trial,

11
United States v. Lee, 07-0725/MC

immediate steps shall be taken to inform him of the specific

wrong of which he is accused and to try him or to dismiss the

charges and release him”). Where an Article 10, UCMJ, motion is

litigated at trial, that issue is preserved for appeal despite

an unconditional guilty plea. Mizgala, 61 M.J. at 127; Tippit,

65 M.J. at 75. This narrow exception is based on the “‘unique

nature of the protections’ set forth in Article 10.” Tippit at

75 (quoting Mizgala, 61 M.J. at 127); see also Mizgala, 61 M.J.

at 124. Neither case suggested that the exception to the waiver

doctrine was available for motions based on delay in violation

of any other rule, statute, or constitutional provision.

Indeed, they held precisely to the contrary. Mizgala, 61 M.J.

at 124–25 (rejecting comparisons of Article 10, UCMJ, to R.C.M.

707, the Sixth Amendment, and the Speedy Trial Act); Tippit, 65

M.J. at 75 (analyzing only Article 10, UCMJ, waiver because

“Appellant’s unconditional guilty plea waived his speedy trial

rights under R.C.M. 707 and the Sixth Amendment”).

Appellant does not claim that the court-martial lacked

jurisdiction over the offenses, did not litigate a motion under

Article 10, UCMJ, and at no point has Appellant challenged the

“voluntary and intelligent character” of his pleas. See Broce,

488 U.S. at 574. Under the circumstances of this case,

Appellant waived review of the appellate delay arising prior to

his unconditional guilty pleas.

12
United States v. Lee, 07-0725/MC

B.

We are nonetheless left to consider whether the remaining

delay -- the 141-day period between Appellant’s sentence

rehearing and action by the convening authority -- amounted to a

due process violation. In doing so, we apply the four factors

developed in Moreno: “(1) the length of the delay; (2) the

reasons for the delay; (3) the appellant’s assertion of the

right to timely review and appeal; and (4) prejudice.” 63 M.J.

at 135 (citations omitted). We conclude that this period of

delay did not violate Appellant’s due process right to speedy

appellate review.

The 141-day period between sentencing and action by the

convening authority was facially unreasonable. Id. at 142

(creating a presumption of unreasonable delay where the

convening authority does not act within 120 days of the

completion of trial). However, twenty of those days were the

result of Appellant’s request for additional time to submit

clemency matters, and clemency was awarded. Furthermore,

Appellant did not demand speedy review during this period. Most

importantly, because Appellant’s name had already been removed

from the Texas Public Sex Offender Registry before this 141-day

period, he has not identified any particularized prejudice

resulting from this delay.

13
United States v. Lee, 07-0725/MC

Accordingly, we find no violation of Appellant’s due

process right to speedy appellate review for the 141-day period

between the sentencing portion of the rehearing and the

convening authority’s action.

IV. DECISION

The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.

14