United States v. Moreno

UNITED STATES, Appellee

v.

Javier A. MORENO Jr., Corporal
U.S. Marine Corps, Appellant

No. 04-0698

Crim. App. No. 200100715

United States Court of Appeals for the Armed Forces

Argued September 21, 2005

Decided May 11, 2006

ERDMANN, J., delivered the opinion of the court, in which
GIERKE, C.J., and EFFRON and BAKER, JJ., joined. CRAWFORD, J.,
filed a separate opinion concurring in part and dissenting in
part.

Counsel

For Appellant: Lieutenant Brian L. Mizer, JAGC, USNR (argued).

For Appellee: Major Kevin C. Harris, USMC (argued); Lieutenant
Colonel William Lietzau, USMC, Commander Charles N. Purnell,
JAGC, USN, and Lieutenant Donald L. Palmer, JAGC, USNR (on
brief).

Military Judge: E. B. Stone

This opinion is subject to revision before final publication.
United States v. Moreno Jr., No. 04-0698/MC

Judge ERDMANN delivered the opinion of the court.

Corporal Javier A. Moreno Jr. was tried by general court-

martial for the offense of rape in violation of Article 120,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920 (2000).

Moreno entered a plea of not guilty but was convicted by members

who subsequently sentenced him to a dishonorable discharge,

confinement for six years, forfeiture of all pay and allowances,

and reduction to the lowest enlisted grade. The convening

authority approved the sentence and the United States Navy-

Marine Corps Court of Criminal Appeals affirmed the findings and

sentence in an unpublished decision. United States v. Moreno,

No. NMCCA 200100715, 2004 CCA LEXIS 118 (N-M. Ct. Crim. App. May

13, 2004). We granted review of three issues.1

1
On March 18, 2005, we granted review of the following issues:

I.
WHETHER LIEUTENANT COLONEL [F] WAS AN INVESTIGATING
OFFICER WITHIN THE MEANING OF R.C.M. 912(f)(1)(F) AND
SHOULD NOT HAVE SERVED AS PRESIDENT OF APPELLANT’S
COURT-MARTIAL.

II.
WHETHER LIEUTENANT COLONEL [F]’S SERVICE AS PRESIDENT
OF APPELLANT’S COURT-MARTIAL RAISED SUBSTANTIAL DOUBT
TO THE LEGALITY, FAIRNESS, AND IMPARTIALITY OF
APPELLANT’S COURT-MARTIAL.

III.
WHETHER APPELLANT’S DUE PROCESS RIGHT TO TIMELY REVIEW
OF HIS APPEAL HAS BEEN DENIED.

We heard argument in this case on September 21, 2005, aboard the
USS RONALD REAGAN (CVN 76) afloat in the Pacific Ocean as part
of the Court’s “Project Outreach.” See United States v.

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United States v. Moreno Jr., No. 04-0698/MC

An accused is entitled to a trial by members who are

qualified, properly selected, and impartial. See Article 25,

UCMJ, 10 U.S.C. § 825 (2000). Moreno claims that Lieutenant

Colonel (LtCol) F, the president of his court-martial, should

have been removed because he had conducted an investigation of

the case, had extensive knowledge of this case and that of

Moreno’s co-accused, and was married to a rape counselor who had

previously worked at the family advocacy office where the

alleged victim was counseled. We conclude that the presence of

LtCol F on the panel created substantial doubt about the

fairness and impartiality of this court-martial and that the

military judge erred in denying the challenge for cause against

LtCol F.2

Due process entitles convicted servicemembers to a timely

review and appeal of court-martial convictions. Toohey v.

United States, 60 M.J. 100, 101 (C.A.A.F. 2004). Moreno asserts

that he was denied due process because there was unreasonable

Mahoney, 58 M.J. 346, 347 n.1 (C.A.A.F. 2003). This practice
was developed as part of a public awareness program to
demonstrate the operation of a Federal Court of Appeals and the
military justice system.
2
Because of our holding that the military judge erred in denying
the challenge for cause against LtCol F, we need not address the
first granted issue concerning whether LtCol F acted as an
investigating officer within the meaning of Rule for Courts-
Martial (R.C.M.) 912(f)(1)(F), Manual for Courts-Martial, United
States (2005 ed.) (MCM). Similarly, because we find that LtCol
F possessed too much pretrial information about the case, we
need not address the effect of his wife’s role as a rape
counselor.

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United States v. Moreno Jr., No. 04-0698/MC

delay in the 1,688 days between the end of his trial and the

date upon which the United States Navy-Marine Corps Court of

Criminal Appeals rendered its decision in his case. We conclude

that Moreno was denied his due process right to speedy appellate

review and we find that under the circumstances of this case

relief is warranted.

BACKGROUND

Moreno worked in the comptroller’s disbursing office.

Among the members detailed to Moreno’s court-martial was LtCol

F, the deputy comptroller. Lieutenant Colonel F was advised of

the incident that gave rise to the rape charge by Moreno’s

officer-in-charge. Lieutenant Colonel F decided to look into

the incident further so that he could brief the comptroller. In

the course of his inquiry into the incident, LtCol F became

aware of information that had been entered into various

logbooks. He spoke to some of the duty officers who had

knowledge of the incident and he read various articles that were

published in Stars and Stripes. Lieutenant Colonel F described

his efforts to gather this information as “simply fact finding.

You know, I wanted to be able to get all the –- find out what

was being reported in the logbook and just so I had a complete

picture before I talked to my boss on what he would be hearing

Monday morning.”

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United States v. Moreno Jr., No. 04-0698/MC

In addition to his personal inquiries into the incident,

LtCol F became aware of Moreno’s co-accused’s case based on what

he read in Stars and Stripes. Lieutenant Colonel F’s pretrial

knowledge of the incident and the subsequent criminal cases

included: (1) that the incident involved drinking at the club;

(2) that the victim may have been drugged; (3) that there had

been sexual contact; (4) that both Moreno and his co-accused

were placed in pretrial confinement; (5) that the co-accused

could be a witness at Moreno’s trial; and (6) that there were

delays in Moreno’s trial relating to obtaining the co-accused’s

presence at Moreno’s trial.

Defense counsel challenged eight members appointed by the

convening authority on a variety of grounds. The defense

asserted that LtCol F could not be impartial because he

“followed this case closely” and had “read everything involving

this case.” The Government responded that the defense counsel

had failed to state a reason for a challenge under Rule for

Courts-Martial (R.C.M.) 912, Manual for Courts-Martial, United

States (2005 ed.) (MCM).3 The military judge, while granting

seven of the eight challenges for cause, denied the challenge

against LtCol F without comment. The defense counsel then

3
R.C.M. 912(f)(1)(N) in the 2005 edition of the MCM is identical
to that in the 1998 edition of the MCM that was in effect at the
time of Moreno’s trial.

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United States v. Moreno Jr., No. 04-0698/MC

exercised a peremptory challenge against another member.

Ultimately, LtCol F served as president of the court-martial.

Moreno was sentenced on September 29, 1999. Two hundred

eight days later, the 746-page record of trial was authenticated

by the military judge. On January 31, 2001, 490 days after

completion of the trial, the convening authority took action.

Seventy-six days later, the case was docketed at the Navy-Marine

Corps Court of Criminal Appeals.

The Navy-Marine Corps Court of Criminal Appeals granted

eighteen motions for enlargement of time to Moreno’s appellate

defense attorney before the defense brief was filed on March 20,

2003 (702 days from docketing). The Government filed an answer

brief on October 29, 2003 (223 days from submission of Moreno’s

brief). The Court of Criminal Appeals issued its unpublished

decision on May 13, 2004 (197 days from the completion of

briefing). Four years, seven months and fourteen days (1,688

days) elapsed between the completion of trial and the completion

of Moreno’s appeal of right under Article 66, UCMJ, 10 U.S.C. §

866 (2000).

DISCUSSION

Implied Bias

Moreno asserts that LtCol F’s presence on his court-martial

panel undermined public confidence in military justice and that,

under the liberal grant mandate, the military judge should have

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United States v. Moreno Jr., No. 04-0698/MC

granted the challenge for cause. The Government argues that

some knowledge of the facts does not serve to disqualify a

potential court member and that the totality of the

circumstances reveals that Moreno did not meet his burden of

showing a substantial doubt as to the legality, fairness or

impartiality of the trial.

Rule for Courts-Martial 912 includes challenges based upon

the distinct concepts of actual bias and implied bias. United

States v. Napoleon, 46 M.J. 279, 283 (C.A.A.F. 1997); United

States v. Minyard, 46 M.J. 229, 231 (C.A.A.F. 1997). In this

case we are concerned with the possibility of implied bias under

R.C.M. 912(f)(1)(N), which provides a basis for challenge when

it appears an individual “[s]hould not sit as a member in the

interest of having the court-martial free from substantial doubt

as to legality, fairness, and impartiality.”

The test for implied bias is objective. Viewing the

circumstances through the eyes of the public and focusing on the

perception or appearance of fairness in the military justice

system, we ask whether, despite a disclaimer of bias, most

people in the same position as the court member would be

prejudiced. United States v. Napolitano, 53 M.J. 162, 167

(C.A.A.F. 2000); United States v. Warden, 51 M.J. 78, 81

(C.A.A.F. 1999). We look to determine whether there is “too

high a risk that the public will perceive” that the accused

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United States v. Moreno Jr., No. 04-0698/MC

received less than a court composed of fair, impartial, equal

members. United States v. Weisen, 56 M.J. 172, 176 (C.A.A.F.

2001). We review rulings on challenges for implied bias under a

standard that is less deferential than abuse of discretion, but

more deferential than de novo review. United States v.

Armstrong, 54 M.J. 51, 54 (C.A.A.F. 2000); Napolean, 46 M.J. at

283.

In reviewing a ruling on a challenge for cause, we remain

mindful of the liberal grant mandate. “[M]ilitary judges must

follow the liberal-grant mandate in ruling on challenges for

cause” asserted by an accused. United States v. White, 36 M.J.

284, 287 (C.M.A. 1993); see also United States v. James, 61 M.J.

132, 139 (C.A.A.F. 2005); United States v. Downing, 56 M.J. 419,

422 (C.A.A.F. 2002). The liberal grant mandate recognizes the

unique nature of military courts-martial panels, particularly

that those bodies are detailed by convening authorities and that

the accused has only one peremptory challenge. See James, 61

M.J. at 139; Downing, 56 M.J. at 422; United States v. Rome, 47

M.J. 467, 469 (C.A.A.F. 1998); United States v. Hamilton, 41

M.J. 22, 25 (C.M.A. 1994). Thus, we will overturn a military

judge’s ruling on an accused’s challenge for cause where he

clearly abuses his discretion in applying the liberal grant

mandate.

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Implied bias should be invoked sparingly. United States v.

Strand, 59 M.J. 455, 458 (C.A.A.F. 2004) (citing Warden, 51 M.J.

at 81-82); Rome, 47 M.J. at 469. Nevertheless, we are not

reluctant to apply the doctrine to ensure the appearance of

fairness in courts-martial. Thus, in Minyard, 46 M.J. at 231-

32, we reversed a conviction where the wife of an investigating

agent who worked on the case was allowed to sit on the panel.

In Weisen, 56 M.J. at 175-77, we reversed a conviction where the

president of the court-martial and his military subordinates

comprised two-thirds of the panel. Similarly, in United States

v. Miles, 58 M.J. 192, 195 (C.A.A.F. 2003), we reversed a

conviction for use of cocaine where the military judge denied a

challenge to a member whose nephew died from complications

associated with his mother’s prenatal use of cocaine.4

From the outset, LtCol F took an active interest in this

case. He took it upon himself to seek out information so that

he could get a “complete picture” to brief his boss, the

comptroller. His preparations for the briefing included

conducting personal interviews of duty officers and reading

entries in various log books. Once he had gathered the

information to brief the comptroller, his interest in Moreno’s

case did not wane. He read about the charges against Moreno in

4
See also United States v. Daulton, 45 M.J. 212, 216-18
(C.A.A.F. 1996); United States v. Smart, 21 M.J. 15, 18-21
(C.M.A. 1985).

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United States v. Moreno Jr., No. 04-0698/MC

newspapers and also read about the court-martial of Moreno’s co-

accused, who was acquitted of wrongdoing for the same incident.5

We believe that an objective observer would perceive that

LtCol F possessed an excessive level of pretrial knowledge about

the incident to sit as an impartial panel member. His personal

inquiry went beyond a routine passing of information to a

superior. His inquiries were so thorough that he subjectively

believed he knew all there was to know -- that he had the

“complete picture.”

Under these circumstances -- where LtCol F had investigated

the incident, weighed facts, made recommendations based on his

conclusions and continued to follow both this case and the case

of Moreno’s co-accused in the press -– an objective observer

could reasonably question whether LtCol F could come to any

different conclusions based solely on evidence presented in

court. An observer could also reasonably question whether LtCol

F would contradict his initial conclusions and recommendations

to the comptroller if warranted by the evidence.

An objective observer could harbor a reasonable concern

that as president of the court-martial, LtCol F would exert

influence over other court-martial members arising from his in-

5
Moreno’s co-actor was acquitted of rape on August 19, 1999.
The following day, an article appeared in Stars and Stripes
captioned “Okinawa Marine innocent of rape.” On August 27,
1999, Stars and Stripes reported that Moreno’s trial would
proceed despite the co-actor’s acquittal.

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United States v. Moreno Jr., No. 04-0698/MC

depth personal knowledge of the facts rather than from the

evidence presented in court. We also believe that the objective

observer would not accord much weight to LtCol F’s assertion

that he could be impartial in view of the depth of his prior

involvement. “[W]e do not accept as conclusive a challenged

member’s perfunctory disclaimer of personal interest or his

assertion of impartiality.” United States v. Smart, 21 M.J. 15,

19 (C.M.A. 1985).

Thus, we hold that there is a substantial doubt that this

trial was by a panel of members who were fair and impartial and

the military judge therefore erred by denying the challenge for

cause against LtCol F.

Speedy Post-Trial and Appellate Review

Moreno contends that the 1,688 days that elapsed between

the completion of his court-martial and the decision of the

Court of Criminal Appeals was unreasonable and denied him due

process. Moreno argues that he had legitimate claims of error

in his case and that the delay has denied him the opportunity

for meaningful relief. The Government counters that the time

involved in Moreno’s post-trial processing and appeal was not

unreasonable. Alternatively, the Government asserts that even

if the delay is unreasonable, Moreno’s due process rights have

not been violated.

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United States v. Moreno Jr., No. 04-0698/MC

The Supreme Court has recognized “the procedures used in

deciding appeals must comport with the demands of the Due

Process and Equal Protection Clauses of the Constitution.”

Evitts v. Lucey, 469 U.S. 387, 393 (1985); see also Diaz v.

Judge Advocate General of the Navy, 59 M.J. 34, 38 (C.A.A.F.

2003). “[A]n appeal that is inordinately delayed is as much a

‘meaningless ritual,’ Douglas [v. California, 372 U.S. 353, 358

(1963)], as an appeal that is adjudicated without the benefit of

effective counsel or a transcript of the trial court

proceedings.” Harris v. Champion (Harris II), 15 F.3d 1538,

1558 (10th Cir. 1994).

This court has recognized that convicted servicemembers

have a due process right to timely review and appeal of courts-

martial convictions. Toohey, 60 M.J. at 101; Diaz, 59 M.J. at

37-38. We review de novo claims that an appellant has been

denied the due process right to a speedy post-trial review and

appeal. See United States v. Rodriguez, 60 M.J. 239, 246

(C.A.A.F. 2004) (conclusions of law are reviewed under the de

novo standard); United States v. Cooper, 58 M.J. 54, 58

(C.A.A.F. 2003) (speedy trial issues, as conclusions of law, are

reviewed de novo).

In conducting this review we have adopted the four factors

set forth in Barker v. Wingo, 407 U.S. 514, 530 (1972): (1) the

length of the delay; (2) the reasons for the delay; (3) the

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United States v. Moreno Jr., No. 04-0698/MC

appellant’s assertion of the right to timely review and appeal;

and (4) prejudice. United States v. Jones, 61 M.J. 80, 83

(C.A.A.F. 2005); Toohey, 60 M.J. at 102. While Barker addressed

speedy trial issues in a pretrial, Sixth Amendment context, its

four-factor analysis has been broadly adopted for reviewing

post-trial delay due process claims.6

Once this due process analysis is triggered by a facially

unreasonable delay, the four factors are balanced, with no

single factor being required to find that post-trial delay

constitutes a due process violation. Barker, 407 U.S. at 533

(“We regard none of the four factors identified above as either

a necessary or sufficient condition to the finding of a

deprivation of [due process].”); Simmons v. Reynolds, 898 F.2d

865, 868 (2d Cir. 1990) (“[N]o one factor is dispositive and all

6
Latimore v. Spencer, 994 F. Supp. 60, 67 (D. Mass. 1998)
(“[T]he First Circuit examines such cases on a case by case
basis applying factors similar to those employed in Barker.”);
Simmons v. Reynolds, 898 F.2d 865, 868 (2d Cir. 1990); Burkett
v. Cunningham, 826 F.2d 1208, 1222 (3d Cir. 1987); United States
v. Johnson, 732 F.2d 379, 381-82 (4th Cir.), cert. denied, 469
U.S. 1033 (1984); Rheuark v. Shaw, 628 F.2d 297, 303 (5th Cir.
1980), cert. denied, 450 U.S. 931 (1981); United States v.
Smith, 94 F.3d 204, 207 (6th Cir. 1996); United States v.
Kimmons, 917 F.2d 1011, 1015 (7th Cir. 1990); United States v.
Hawkins, 78 F.3d 348, 350-51 (8th Cir.), cert. denied, 519 U.S.
844 (1996); United States v. Tucker, 8 F.3d 673, 676 (9th Cir.
1993)(en banc), cert. denied, 510 U.S. 1182 (1994); Harris v.
Champion (Harris I), 938 F.2d 1062, 1068 (10th Cir. 1991);
Harris v. Champion (Harris II), 15 F.3d 1538, 1559 (10th Cir.
1994); Harris v. Champion (Harris III), 48 F.3d 1127 (10th Cir.
1995).

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United States v. Moreno Jr., No. 04-0698/MC

are to be considered together with the relevant

circumstances.”).

We analyze each factor and make a determination as to

whether that factor favors the Government or the appellant. See

Rheuark v. Shaw, 628 F.2d 297, 303 (5th Cir. 1980) (calling for

an ad hoc evaluation of the four Barker factors). We then

balance our analysis of the factors to determine whether there

has been a due process violation. Barker, 407 U.S. at 533

(“[C]ourts must still engage in a difficult and sensitive

balancing process.”). No single factor is required for finding

a due process violation and the absence of a given factor will

not prevent such a finding. Id. With this structure as our

guide, we turn to an analysis of the four factors as they arise

in Moreno’s case.

1. Length of the delay

Initially, unless the delay is facially unreasonable, the

full due process analysis will not be triggered. Toohey, 60

M.J. at 102. We conduct a case-by-case analysis to determine if

a given delay is facially unreasonable.7 Id. at 103.8 In this

7
Rheuark, 628 F.2d at 303 (“[N]ot every delay in the appeal of a
case, even an inordinate one, violates due process.”).
8
In the speedy trial context, “extreme cases of delay would
produce a strong presumption of prejudice to the ability of a
party to defend itself at trial . . . .” United States v.
Smith, 94 F.3d 204, 211 (6th Cir. 1996) (citing Doggett v.
United States, 505 U.S. 647, 655-58 (1992)). Circuit courts
have split on whether the Doggett presumption of prejudice is

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United States v. Moreno Jr., No. 04-0698/MC

case we conclude that the overall period of post-trial review

and appeal, 1,688 days, is facially unreasonable and thus we

will proceed to the remaining Barker factors.

2. Reasons for the delay

Under this factor we look at the Government’s

responsibility for any delay, as well as any legitimate reasons

for the delay, including those attributable to an appellant. In

assessing the reasons for any particular delay, we examine each

stage of the post-trial period because the reasons for the delay

may be different at each stage and different parties are

responsible for the timely completion of each segment.9

The 490 days between the end of trial and the convening

authority’s action is excessive for the post-trial processing of

this case. The processing in this segment is completely within

the control of the Government and no exceptional circumstances

have been offered to explain this delay. See United States v.

Bigelow, 57 M.J. 64, 68-69 (C.A.A.F. 2002). It is striking that

this period is over five times longer than that deemed

reasonable by this court when we established the ninety-day rule

in Dunlap v. Convening Authority, 23 C.M.A. 135, 48 C.M.R. 751

applicable to a due process appellate delay analysis. Compare
Harris II, 15 F.3d at 1564, and Smith, 94 F.3d at 211-12
(presumption applicable), with United States v. Mohawk, 20 F.3d
1480, 1487-88 (9th Cir. 1994) (presumption not applicable).

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United States v. Moreno Jr., No. 04-0698/MC

(1974).10 The seventy-six days between action and docketing the

case before the Court of Criminal Appeals is also unexplained.

Delays involving this essentially clerical task have been

categorized as “the least defensible of all” post-trial delays.

United States v. Dunbar, 31 M.J. 70, 73 (C.M.A. 1990).

The longest delay in this case -– 925 days -- involves the

period from which the case was docketed at the Court of Criminal

Appeals until briefing was complete. The Government claims that

Moreno is directly responsible for the almost two years it took

to file his brief at the Court of Criminal Appeals. The record

reflects that appellate defense counsel sought and was granted

eighteen enlargements of time within which to file a brief.

Enlargement numbers four through eighteen each contained the

same reason for the request: “other case load commitments.”

While the Government argued that this period of delay was

in Moreno’s interest, there was no evidence demonstrating that

the enlargements were directly attributable to Moreno or that

the need for additional time arose from other factors such as

the complexity of Moreno’s case. The Government further argued

9
Convening authorities, reviewing authorities, and the Courts of
Criminal Appeals can provide significant relief for unreasonable
delays at their respective stages of the process.
10
In Dunlap v. Convening Authority, 23 C.M.A. 135, 138, 48
C.M.R. 751, 754 (1974), this court presumed a denial of speedy
disposition where the convening authority failed to take action
within ninety days of trial. The presumption placed “a heavy
burden on the Government to show diligence, and in the absence

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United States v. Moreno Jr., No. 04-0698/MC

that we should presume the delays were for Moreno’s benefit, but

did not provide any legal authority to support such a

presumption. There is no evidence in this case that the

numerous requests for delay filed by appellate defense counsel

benefited Moreno or that Moreno was consulted about and agreed

to these delays. “Other case load commitments” logically

reflects that Moreno’s case was not getting counsel’s

professional attention, a fact that is the very antithesis of

any benefit to Moreno. We therefore decline to hold Moreno

accountable for this period of delay. As we said in Diaz, 59

M.J. at 38:

Appellate counsel caseloads are a result of
management and administrative priorities and
as such are subject to the administrative
control of the Government. To allow
caseloads to become a factor in determining
whether appellate delay is excessive would
allow administrative factors to trump the
Article 66 and due process rights of
appellants. To the contrary, the Government
has a statutory responsibility to establish
a system of appellate review under Article
66 that preserves rather than diminishes the
rights of convicted servicemembers. In
connection with that responsibility, the
Government has a statutory duty under
Article 70 to provide Petitioner with
appellate defense counsel who is able to
represent him in both a competent and timely
manner before the Court of Criminal Appeals.

of such a showing the charges should be dismissed.” Id.
(internal quotation marks omitted).

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Internal footnote omitted. See also Barker, 407 U.S. at 531

(noting that ultimate responsibility of delay caused by

negligence or overcrowded courts rests with the Government).11

While appellate defense counsel’s caseload is the

underlying cause of much of this period of delay, responsibility

for this portion of the delay and the burden placed upon

appellate defense counsel initially rests with the Government.

The Government must provide adequate staffing within the

Appellate Defense Division to fulfill its responsibility under

the UCMJ to provide competent and timely representation. See

Article 70, UCMJ, 10 U.S.C. § 870 (2000). Ultimately the timely

management and disposition of cases docketed at the Courts of

Criminal Appeals is a responsibility of the Courts of Criminal

Appeals. Therefore, we decline to hold Moreno responsible for

the lack of “institutional vigilance” which should have been

exercised in this case. See Diaz, 59 M.J. at 39-40.

The final period of delay is the 197 days from submission

of the final briefs to the Court of Criminal Appeals’ decision.

We will apply a more flexible review of this period, recognizing

that it involves the exercise of the Court of Criminal Appeals’

11
See Harris II, 15 F.3d at 1562-63 (“lack of funding and,
possibly, the mismanagement of resources by the Public Defender”
were not an “acceptable excuse for delay.”); Coe v. Thurman, 922
F.2d 528, 531 (9th Cir. 1990) (failures of court-appointed
counsel and delays by the court are attributable to the state);
Simmons v. Beyer, 44 F.3d 1160, 1170 (3d Cir. 1995).

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judicial decision-making authority.12 We find that a period of

slightly over six months is not an unreasonable time for review

by the Court of Criminal Appeals. Thus, under Barker’s second

factor -– reasons for the delay -– the unreasonable delays in

this case are either unexplained or the responsibility of the

Government. There is no reason given for the unreasonable

delays in getting this case from trial to the convening

authority for action and in docketing the case before the Court

of Criminal Appeals after action. The Government bears

responsibility for unreasonable delay during appeal occasioned

by the workload of appellate defense counsel. We conclude that

this second Barker factor weighs heavily in favor of Moreno.

3. Assertion of the right to a timely review and appeal

This factor calls upon us to examine an aspect of Moreno’s

role in this delay. Moreno did not object to any delay or

assert his right to timely review and appeal prior to his

arrival at this court. The Supreme Court in Barker, 407 U.S. at

12
“Courts, of course, are not excluded from the obligation to
give defendants a speedy trial. But the function of appellate
courts necessarily casts the delay attendant upon their
deliberations in a somewhat different light . . . .” United
States v. Biston, 463 F.2d 887, 890 (D.C. Cir. 1972). We are
mindful in the military justice system of the distinct functions
of a first level appeal of right court as opposed to a
discretionary second level appellate court. The Courts of
Criminal Appeals have “unique authority that is the product of
the evolution of military justice in the United States.” United
States v. Boone, 49 M.J. 187, 191 (C.A.A.F. 1998). Congress
provided these appellate tribunals with “an authority rarely if
ever seen in other appellate courts.” Id. at 192.

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531-32, noted that where the defendant has asserted his speedy

trial right, it is “entitled to strong evidentiary weight in

determining whether the defendant is being deprived of the

right.” The Court rejected, however, “the rule that a defendant

who fails to demand a speedy trial forever waives his rights.”

Id. at 528.

We do not believe this factor weighs heavily against Moreno

under the circumstances of this case. The obligation to ensure

a timely review and action by the convening authority rests upon

the Government and Moreno is not required to complain in order

to receive timely convening authority action. United States v.

Bodkins, 60 M.J. 322, 323-24 (C.A.A.F. 2004). Similarly, Moreno

bears no responsibility for transmitting the record of trial to

the Court of Criminal Appeals after action. Nor is it

unreasonable to assume, as Moreno argues, that a convicted

person wants anything other than a prompt resolution of his

appeal. See Harris II, 15 F.3d at 1563.

We also recognize the paradox of requiring Moreno to

complain about appellate delay either to his appellate counsel

who sought multiple enlargements of time because of other case

commitments or to the appellate court that granted the

enlargements on a routine basis.13 While this factor weighs

13
See Harris II, 15 F.3d at 1563 (“Furthermore, petitioners were
hampered by the fact that they had to speak through their
counsel in the state court appellate process and, in most

20
United States v. Moreno Jr., No. 04-0698/MC

against Moreno, the weight against him is slight given that the

primary responsibility for speedy processing rests with the

Government and those to whom he could complain were the ones

responsible for the delay.

4. Prejudice

In Barker, 407 U.S. at 532, the Supreme Court recognized a

framework to analyze the “prejudice” factor in a speedy trial

context. We agree with the Fifth Circuit’s modification of that

framework for analyzing prejudice in a due process post-trial

delay analysis:

In the case of appellate delay, prejudice
should be assessed in light of the interests
of those convicted of crimes to an appeal of
their convictions unencumbered by excessive
delay. We identify three similar interests
for prompt appeals: (1) prevention of
oppressive incarceration pending appeal; (2)
minimization of anxiety and concern of those
convicted awaiting the outcome of their
appeals; and (3) limitation of the
possibility that a convicted person’s
grounds for appeal, and his or her defenses
in case of reversal and retrial, might be
impaired.

Rheuark, 628 F.2d at 303 n.8; see also United States v. Hawkins,

78 F.3d 348, 351 (8th Cir. 1996); Coe v. Thurman, 922 F.2d 528,

532 (9th Cir. 1990); Harris II, 15 F.3d at 1547.

instances, it was that very counsel who was responsible for the
delay. Under these circumstances, we cannot fairly expect
petitioners to have raised the issue of delay in state court.”).

21
United States v. Moreno Jr., No. 04-0698/MC

a. Oppressive Incarceration Pending Appeal

This sub-factor is directly related to the success or

failure of an appellant’s substantive appeal. If the

substantive grounds for the appeal are not meritorious, an

appellant is in no worse position due to the delay, even though

it may have been excessive. Cody v. Henderson, 936 F.2d 715,

720 (2d Cir. 1991). Under these circumstances, an appellant

would have served the same period of incarceration regardless of

the delay. United States v. Antoine, 906 F.2d 1379, 1382 (9th

Cir. 1990). However, if an appellant’s substantive appeal is

meritorious and the appellant has been incarcerated during the

appeal period, the incarceration may have been oppressive. Coe,

922 F.2d at 532.

Moreno served his full term of confinement before his

appeal of right was resolved by the Court of Criminal Appeals.

Before this court he has prevailed on a substantive appellate

issue, his conviction will be set aside and he is entitled to a

retrial. As the Fifth Circuit has noted:

Moreover, if an appeal is not frivolous, a
person convicted of a crime may be receiving
punishment the effects of which can never be
completely reversed or living under the
opprobrium of guilt when he or she has not
been properly proven guilty and may indeed
be innocent under the law.

Rheuark, 628 F.2d at 304.14

14
“A system of appeal as of right is established precisely to
assure that only those who are validly convicted have their

22
United States v. Moreno Jr., No. 04-0698/MC

Moreno was sentenced to six years of incarceration.

Although the record does not provide us with a precise release

date, we can be reasonably certain that Moreno was released from

confinement prior to the Court of Criminal Appeals’ decision.

Based on the 150 days of pretrial confinement credit and the

duration of the adjudged confinement, we estimate that Moreno’s

minimum release date was about April, 2003. Thus, he had served

at least four years in confinement, under a conviction that has

now been set aside, prior to his appeal of right being decided.

We therefore find that he has suffered some degree of prejudice

as the result of oppressive incarceration.15

b. Anxiety and Concern

This sub-factor involves constitutionally cognizable

anxiety that arises from excessive delay. Federal courts have

adopted different approaches to this “prejudice” sub-factor.

The Second Circuit has affirmed district court decisions which

found anxiety-based prejudice that arose solely from the length

of the delay. Yourdon v. Kelly, 969 F.2d 1042 (2d Cir.

freedom drastically curtailed.” Evitts v. Lucey, 469 U.S. 387,
399-400 (1985).
15
We note that this factor (oppressive incarceration) would
weigh heavily against the Government if the incarceration
relates to a finding that a Court of Criminal Appeals reverses
for factual insufficiency. See Diaz v. Judge Advocate General
of the Navy, 59 M.J. 34, 39 (C.A.A.F. 2003) (“Unlike the
civilian criminal justice system, the Courts of Criminal Appeals
have unique fact finding authority, and that aspect of a

23
United States v. Moreno Jr., No. 04-0698/MC

1992)(table decision), aff’g 769 F. Supp. 112, 115 (W.D.N.Y.

1991); Snyder v. Kelly, 972 F.2d 1328 (2d Cir. 1992)(table

decision), aff’g 769 F. Supp. 108, 111 (W.D.N.Y. 1991).16

The Ninth Circuit requires a showing of “particular

anxiety”, which must be distinguished from the normal anxiety

experienced by any prisoner awaiting an appellate decision.

Antoine, 906 F.2d at 1383; see also Coe, 922 F.2d at 532. The

Third Circuit requires an appellant “to detail anxiety related

to the processing of his case post-conviction.” Burkett v.

Fulcomer, 951 F.2d 1431, 1447 (3d Cir. 1991). The Tenth Circuit

requires a “particularized and substantial showing of anxiety

and concern, absent a delay so excessive as to trigger the

Doggett presumption of prejudice.” Harris II, 15 F.3d at 1565.

While some circuits require that an appellant have a

meritorious appeal to prevail on this sub-factor, see id.,

others have recognized anxiety arising from excessive delays

regardless of whether the appellant prevails on a substantive

servicemember’s case is not concluded until that review is
completed.”).
16
Those district courts and the Second Circuit have found that
the more appropriate remedy for anxiety-based prejudice arising
from excessive appellate delay is an action for damages under 42
U.S.C. § 1983 (2000). Cody v. Henderson, 936 F.2d 715, 720 (2d
Cir. 2000). We recognize that military service members are
unable to pursue relief under 42 U.S.C. § 1983 as a result of
the extended Feres v. United States, 340 U.S. 135 (1950),
doctrine. Chappell v. Wallace, 462 U.S. 296, 304 (1983).

24
United States v. Moreno Jr., No. 04-0698/MC

issue.17 We believe that the appropriate test for the military

justice system is to require an appellant to show particularized

anxiety or concern that is distinguishable from the normal

anxiety experienced by prisoners awaiting an appellate decision.

This particularized anxiety or concern is thus related to the

timeliness of the appeal, requires an appellant to demonstrate a

nexus to the processing of his appellate review, and ultimately

assists this court to “fashion relief in such a way as to

compensate [an appellant] for the particular harm.” Burkett,

951 F.2d at 1447. We do not believe that the anxiety that an

appellant may experience is dependent upon whether his

substantive appeal is ultimately successful. An appellant may

suffer constitutionally cognizable anxiety regardless of the

outcome of his appeal.

Moreno argues that he suffered prejudice because he was

required to register as a sex offender upon his release from

incarceration without the opportunity of having his appeal of

right heard and decided. See 42 U.S.C. § 14071(a)(1)(A),

(b)(6)(A) (2000). Moreno essentially argues that had his appeal

been processed in a timely manner, it would have been resolved

17
Snyder v. Kelly, 769 F. Supp. 108, 111 (W.D.N.Y. 1991) (where
conviction affirmed, court noted, “While he has not presented
any evidence of prejudice to the appeal itself, it would not
strike this Court as unusual that a five-year delay would
profoundly worry an individual hopefully awaiting an ultimate
appellate reversal”).

25
United States v. Moreno Jr., No. 04-0698/MC

before his release from incarceration. Had Moreno’s conviction

been affirmed prior to his release, registration as a sex

offender would have been a proper consequence of his conviction.

However, Moreno argues that he has been “living under the

opprobrium of guilt when he . . . has not been properly proven

guilty and may indeed be innocent under the law.” Rheuark, 628

F.2d at 304. The excessive delay in this case and our

disposition of the implied bias issue lend credence to Moreno’s

claim that he was prejudiced by the requirement to register as a

sex offender. We find that this circumstance constitutes

constitutional anxiety that is distinguishable from the normal

anxiety experienced by prisoners awaiting appeal and that as a

result Moreno has suffered some degree of prejudice.

c. Impairment of Ability to Present a Defense at a Rehearing

This final sub-factor is directly related to whether an

appellant has been successful on a substantive issue of the

appeal and whether a rehearing has been authorized. If an

appellant does not have a meritorious appeal, there obviously

will be no prejudice arising from a rehearing. If, however, a

conviction has been set aside and a rehearing authorized, the

appellate delay encountered by the appellant may have a negative

impact on his ability to prepare and present his defense at the

rehearing. Due to the passage of time, witnesses may be

26
United States v. Moreno Jr., No. 04-0698/MC

unavailable, memories may have faded and records of trial may

have been misplaced or lost.

In order to prevail on this factor an appellant must be

able to specifically identify how he would be prejudiced at

rehearing due to the delay.18 Mere speculation is not enough.

United States v. Mohawk, 20 F.3d 1480, 1487 (9th Cir. 1994).

Moreno claims that prejudice exists under this factor because of

the potential harm he would suffer in the event he is successful

on appeal and a rehearing is authorized. He does not, however,

identify any specific harm that he would encounter at a

rehearing and he has therefore failed to establish prejudice

under this sub-factor.19

18
A requirement that an appellant demonstrate prejudice is not a
unique requirement. See United States v. Chatman, 46 M.J. 321,
323-24 (C.A.A.F. 1997) (the court required an appellant
“demonstrate prejudice [from new matter in a staff judge
advocate’s addendum] by stating what, if anything, would have
been submitted to ‘deny, counter, or explain’ the new matter.”);
United States v. Moulton, 47 M.J. 227, 229 (C.A.A.F. 1997) (a
defendant who claims ineffective assistance of counsel must show
that a counsel’s deficient performance was “‘so serious as to
deprive the defendant of a fair trial, a trial whose result is
reliable.’” (quoting Strickland v. Washington, 466 U.S. 668, 687
(1984))).
19
We are mindful of the difficulty that an appellant and his
appellate defense counsel may have at this juncture of the
process in identifying problems that would hinder an appellant’s
ability to present a defense at rehearing. If an appellant does
experience problems in preparing for trial due to the delay, a
Sixth Amendment speedy trial motion could appropriately be
brought at the trial level. “[W]e are inclined to believe that
a consideration of the Sixth Amendment speedy trial right in its
most pristine sense would be triggered by any retrial of such a
person. The consideration would, of course, be an ad hoc

27
United States v. Moreno Jr., No. 04-0698/MC

Conclusion -– Barker Factors

Because of the unreasonably lengthy delay, the lack of any

constitutionally justifiable reasons for the delay, and the

prejudice suffered by Moreno as a result of oppressive

incarceration and anxiety, our balancing of the four Barker

factors leads us to conclude that Moreno was denied his due

process right to speedy review and appeal. Because we have

found legal error and substantial prejudice to a material right,

as well as a deprivation of due process, we need to consider

appropriate relief. See Jones, 61 M.J. at 86.

Before we turn to that consideration, we address post-trial

processing standards in the military justice system. Our

concern for post-trial timeliness has been heightened by the

number of appellate delay cases that have come before this court

and cases that are pending elsewhere in the military justice

system. In recognition of the due process issues involved in

timely post-trial review and appeal and in response to the cases

giving rise to our concerns, we will establish post-trial

processing standards to be applied to cases yet to enter the

post-trial and appellate processes.

Post-Trial Processing Standards

In 1974 this court adopted a “presumption of a denial of

speedy disposition of the case” if a convening authority failed

determination based on the four factors of Barker.” Rheuark,

28
United States v. Moreno Jr., No. 04-0698/MC

to take action within ninety days of trial. Dunlap, 23 C.M.A.

at 138, 48 C.M.R. at 754. Five years later this court abandoned

that rule and expressed confidence that military justice had

overcome the numerous circumstances giving rise to that rule:

Dunlap came in response to a problem which
frequently manifested itself where the
convening authority delayed his final
action. See generally United States v.
Jefferson, 22 U.S.C.M.A. 554, 48 C.M.R. 39
(1973); United States v. Gray, 22 U.S.C.M.A.
443, 47 C.M.R. 484 (1973); United States v.
Timmons, 22 U.S.C.M.A. 226, 46 C.M.R. 226
(1973); United States v. Wheeler, 21
U.S.C.M.A. 468, 45 C.M.R. 242 (1972); United
States v. Whitmire, 21 U.S.C.M.A. 268, 45
C.M.R. 42 (1972); United States v. Davis, 20
U.S.C.M.A. 541, 43 C.M.R. 381 (1971); United
States v. Prater, 20 U.S.C.M.A. 339, 43
C.M.R. 179 (1971). However, convicted
service persons now enjoy protections which
had not been developed when Dunlap was
decided. For example, in United States v.
Palenius, 2 M.J. 86 (C.M.A. 1977), we
announced duties on the part of the trial
defense attorney which are designed to
insure a continuous, uninterrupted
representation of the convicted accused
service person. Performance of those
functions may well remove the causes which
concerned the Dunlap Court. And in United
States v. Brownd, 6 M.J. 338 (C.M.A. 1979)
we announced standards by which applications
for deferment of sentence are to be judged
in appropriate cases. Thus the serviceman
awaiting final action by the convening
authority may avail himself of remedies
during the pendency of review which were not
clear when Dunlap was decided.

United States v. Banks, 7 M.J. 92, 93 (C.M.A. 1979). See also

United States v. Kossman, 38 M.J. 258, 261 (C.M.A. 1993)

628 F.2d at 303 n.8.

29
United States v. Moreno Jr., No. 04-0698/MC

(eliminating the ninety-day rule for bringing a servicemember to

trial when that member is in pretrial confinement).

Unfortunately, our confidence that procedural protections

would suffice to ensure the speedy post-trial and appellate

rights of servicemembers has been eroded. It is of some concern

that the Government brief asserts that the 1,688 day delay in

this case was reasonable.20 We reject that contention and note

that Moreno’s case is not an isolated case that involves

excessive post-trial delay issues.21

This increase in processing time stands in contrast to the

lower number of cases tried in the military justice system in

recent years. Our separate system of military justice often

provides different or diminished constitutional rights in light

of the need for prompt disposition of disciplinary matters. It

follows then, as this court has noted, that the unique nature of

review under Article 66(c), UCMJ, “calls for, if anything, even

greater diligence and timeliness than is found in the civilian

system.” Diaz, 59 M.J. at 39.

20
“[T]he facts show the post-trial processing of Appellant’s
case has been reasonable, if not expeditious.”
21
See United States v. Oestmann, 61 M.J. 103 (C.A.A.F. 2005);
United States v. Jones, 61 M.J. 80 (C.A.A.F. 2005); Rodriguez-
Rivera v. United States and The Judge Advocate General of the
Navy, 61 M.J. 19 (C.A.A.F. 2005); United States v. Toohey, 60
M.J. 100 (C.A.A.F. 2003); Diaz, 59 M.J. 34; United States v.
Tardif, 57 M.J. 219 (C.A.A.F. 2002).

30
United States v. Moreno Jr., No. 04-0698/MC

We believe that adopting the Doggett presumption of

prejudice is unnecessary at this point. We can deter these

delays and address the systemic delays we see arising in post-

trial and appellate processing through less draconian measures.

See Simmons, 898 F.2d at 869. Although we do not foreclose the

possibility that presumptions of prejudice may yet prove

necessary, we do not believe it is necessary to adopt such a

presumption at this juncture.

Nonetheless, some action is necessary to deter excessive

delay in the appellate process and remedy those instances in

which there is unreasonable delay and due process violations.22

For courts-martial completed thirty days after the date of this

opinion, we will apply a presumption of unreasonable delay that

will serve to trigger the Barker four-factor analysis 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 thirty days

after the date of this opinion where the record of trial is not

22
We are mindful of the importance of providing a deterrent to
improper Government action, including actions that delay post-
trial and appellate processing. One such very significant
deterrent, the exclusionary rule, was developed to protect not
only the constitutional rights of individuals accused of crime,
but also the integrity of and respect for the criminal justice
system. See Mapp v. Ohio, 367 U.S. 643, 655 (1961). The
exclusionary rule emphasizes that constitutional rights have
meaning and a deprivation of those rights has ramifications.
See Marc M. Arkin, Speedy Criminal Appeal: A Right Without A
Remedy, 74 Minn. L. Rev. 437, 459-60 (1990).

31
United States v. Moreno Jr., No. 04-0698/MC

docketed by the service Court of Criminal Appeals within thirty

days of the convening authority’s action.

For those cases arriving at the service Courts of Criminal

Appeals thirty days after the date of this decision, we will

apply a presumption of unreasonable delay where appellate review

is not completed and a decision is not rendered within eighteen

months of docketing the case before the Court of Criminal

Appeals. These presumptions of unreasonable delay will be

viewed as satisfying the first Barker factor and they will apply

whether or not the appellant was sentenced to or serving

confinement. It is important to note that the presumptions

serve to trigger the four-part Barker analysis -– not resolve

it. The Government can rebut the presumption by showing the

delay was not unreasonable. By using these presumptions we

trigger an appellate analysis and allocate the burden; we do not

legislate or undermine the President’s rulemaking authority

under Article 36, UCMJ, 10 U.S.C. § 836 (2000).

Some cases will present specific circumstances warranting

additional time, thus making those periods reasonable upon

assessment of the Barker factors. But these must be

justifiable, case-specific delays supported by the circumstances

of that case and not delays based upon administrative matters,

manpower constraints or the press of other cases. We expect

convening authorities, reviewing authorities and the Courts of

32
United States v. Moreno Jr., No. 04-0698/MC

Criminal Appeals to document reasons for delay and to exercise

the institutional vigilance that was absent in Moreno’s case.

Once the four-factor analysis is completed and those

factors balanced, reviewing authorities that find a denial of

speedy post-trial or appeal “should ‘tailor an appropriate

remedy, if any is warranted, to the circumstances of the case.’”

Jones, 61 M.J. at 86 (quoting United States v. Tardif, 57 M.J.

219, 225 (C.A.A.F. 2002)). The nature of that relief will

depend on the circumstances of the case, the relief requested,

and may include, but is not limited to: (a) day-for-day

reduction in confinement or confinement credit; (b) reduction of

forfeitures; (c) set aside of portions of an approved sentence

including punitive discharges; (d) set aside of the entire

sentence, leaving a sentence of no punishment; (e) a limitation

upon the sentence that may be approved by a convening authority

following a rehearing; and (f) dismissal of the charges and

specifications with or without prejudice. Clearly this range of

meaningful options to remedy the denial of speedy post-trial

processing provides reviewing authorities and courts with the

flexibility necessary to appropriately address these situations

on a case-by-case basis.23

23
Post-trial delay cases that arise in Article III courts do so
in the context of a writ of habeas corpus with relief generally
limited to dismissal of the charges. As we generally review the
issue of post-trial delay on direct appeal, we have a number of
remedies not available to Article III courts.

33
United States v. Moreno Jr., No. 04-0698/MC

Those cases tried or received at a Court of Criminal

Appeals prior to the date of this opinion and therefore not

encompassed by the foregoing presumptions of unreasonable delay

will continue to be reviewed on a case-by-case basis under the

Barker due process analysis. Delays have been tolerated at all

levels in the military justice system so much so that in many

instances they are now considered the norm. The effect of this

opinion is to provide notice that unreasonable delays that

adversely impact an appellant’s due process rights will no

longer be tolerated.

Relief in Moreno’s Case

In Moreno’s case, a rehearing is the appropriate remedy for

the military judge’s erroneous denial of the challenge for cause

against LtCol F. In considering the range of options to address

the denial of Moreno’s due process right to speedy review and

appeal, we considered directing a day-for-day credit for each

day of unreasonable and unexplained delay. Such a credit would

have no meaningful effect, however, as Moreno served the full

term of adjudged confinement after his initial trial.

We have also considered dismissing the charge and

specification with prejudice. Dismissal would be a

consideration if the delay either impaired Moreno’s ability to

defend against the charge at a rehearing or resulted in some

other evidentiary prejudice. See Tardif, 57 M.J. at 224 (citing

34
United States v. Moreno Jr., No. 04-0698/MC

United States v. Timmons, 22 C.M.A. 226, 227, 46 C.M.R. 226, 227

(1973); United States v. Gray, 22 C.M.A. 443, 445, 47 C.M.R.

484, 486 (1973)). We find no such evidence before us. Finally,

because we must set aside the sentence in order to permit a

rehearing, there is no direct sentence relief that we can afford

to Moreno. Compare Jones, 61 M.J. at 86 (this court formulated

a remedy for prejudicial denial of speedy appellate review where

neither the adjudged sentence nor the convening authority’s

action were to be set aside).

We are not, however, without power to effect appropriate

relief in this case. Should there be a rehearing resulting in a

conviction and new sentencing, we believe that limiting the

sentence that may be approved by the convening authority will

adequately afford Moreno relief for the deprivation of his

speedy appellate review due process rights.

DECISION

The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is reversed. The findings and sentence are

set aside and a rehearing may be ordered. In the event that a

rehearing is held resulting in a conviction and sentence, the

convening authority may approve no portion of the sentence

exceeding a punitive discharge.

35
United States v. Moreno, No. 04-0698/MC

CRAWFORD, Judge (concurring in part and dissenting in

part):

I respectfully dissent because the majority: (1) usurps

the role of Congress and the President, as delegated by Congress

to the executive branch by Article 36, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. § 836 (2000), by establishing

prospective rules setting forth timelines for the post-trial

processing of cases in the military justice system; and (2)

misapplies the speedy trial balancing factors of Barker v.

Wingo, 407 U.S. 514, 529-33 (1972).

I agree with the majority that the military judge should

have granted the challenge for cause, and thus concur in the

result.

I. Separation of Powers

A. History

The wisdom of our Founding Fathers is reflected in the

process and procedures they established in the Constitution. To

prevent centralization of power, the Founding Fathers

established three branches of government, each with its own

rules, powers, and responsibility, and serving as a check on

each other rather than one exercising the role of two branches

of government. As James Madison said, “There can be no liberty

. . . if the power of judging be not separated from the

legislative and executive powers.” The Federalist No. 47, at
United States v. Moreno, No. 04-0698/MC

302 (James Madison) (Clinton Rossiter ed., 1961). Accordingly,

Madison cited the “oracle” Montesquieu for the admonition of our

Founding Fathers that the “preservation of liberty requires that

the three great departments of power should be separate and

distinct.” Id. No. 47, at 301 (James Madison). In separating

the powers of the departments of the federal government, the

Founding Fathers established a system of checks and balances “by

so contriving the interior structure of the government as that

its several constituent parts may, by their mutual relations, be

the means of keeping each other in their proper places. Id. No.

51, at 320 (James Madison).

B. Congressional Delegation

Under Article 36, UCMJ, Congress has delegated to the

President the power to prescribe rules for post-trial

procedures. By establishing prospective rules setting forth

timelines for post-trial processing, the majority assumes the

role delegated to the President by Congress in Article 36, UCMJ,

in contravention of the constitutional separation of powers

doctrine.

In Barker v. Wingo, the Supreme Court rejected judicial

rulemaking to specify a time period for when a defendant will be

offered a trial. 407 U.S. at 523. The Court concluded that

setting out a time period to identify when the speedy trial

right has been infringed would require the Court “to engage in

2
United States v. Moreno, No. 04-0698/MC

legislative or rulemaking activity, rather than in the

adjudicative process to which [the Court] should confine [its]

efforts.” Barker, 407 U.S. at 523. The Court reasoned its

“approach must be less precise” and that it should not establish

procedural rules because there is “no constitutional basis for

holding that the speedy trial right can be quantified into a

specified number of days or months.” Id. In creating specific

timelines that, if violated, equate to unreasonable delay, the

majority is essentially modifying the Rules for Courts-Martial

(R.C.M.) and attempting to assume the role of the President in

violation of separation of powers principles.

II. Post-Trial Delay

A. General

While the Supreme Court has not addressed the issue of

whether the Constitution guarantees a right to a speedy appeal,

the lower federal courts and this Court have. “The speedy trial

guarantee of the Sixth Amendment applies only to proceedings in

the trial court. Our sister circuits have held, however, that a

similar guarantee applies to criminal appeals via the Due

Process Clause.” United States v. Smith, 94 F.3d 204, 206 (6th

Cir. 1996) (citations omitted). The right to a speedy trial is

guaranteed an accused by the Sixth Amendment. The Due Process

Clause provides that “No person shall . . . be deprived of life,

liberty, or property, without due process of law . . . .” U.S.

3
United States v. Moreno, No. 04-0698/MC

Const. amend. V. An appellant’s right to a speedy appellate

review evolves from an appellant’s due process rights under the

Fifth Amendment. Harris v. Champion, 15 F.3d 1538, 1558 (10th

Cir. 1994). When examining these constitutional rights, we must

look at the text, the history, the tradition behind the

constitutional amendments, prior precedent, and practical

consequences. See County of Sacramento v. Lewis, 523 U.S. 833,

857 (1998) (must consider “history and tradition”); United

States v. Mara, 410 U.S. 19, 37 (1973) (must examine the

teachings of history and tradition).

The federal courts have recognized that generally “there is

no due process right to an appeal at all, but that an appeal

must nonetheless comport with due process ‘if a State has

created appellate courts as an integral part’ of its criminal

justice system.” Smith, 94 F.3d at 206-07 (quoting Harris, 15

F.3d at 1558) (internal quotation marks omitted). The courts

considering this issue have conducted a case-by-case basis

analysis, applying a modified version of the four factors of

Barker to determine whether the delay in an appeal violated an

appellant’s due process rights to a speedy post-trial review.

These four factors are: (1) length of the delay; (2) reasons

for the delay; (3) the appellant’s assertion of his right to a

timely appeal; and (4) prejudice to appellant. Barker, 407 U.S.

at 529-33.

4
United States v. Moreno, No. 04-0698/MC

In Barker, the Supreme Court adopted a “balancing test”

approach in evaluating these factors in speedy trial violations

“in which the conduct of both the prosecution and the defendant

are weighed.” Barker, 407 U.S. at 530. The “balancing test

necessarily compels courts to approach speedy trial cases on an

ad hoc basis.” Id. None of these four factors is “a necessary

or sufficient condition to finding of a deprivation of the right

of speedy trial.” Id. at 533. Courts must engage in the

“difficult and sensitive balancing process” of all of the

factors in evaluating whether a post-trial delay violates an

appellant’s due process. See id. at 533.

In Toohey v. United States, 60 M.J. 100, 102 (C.A.A.F.

2004), this Court recognized that servicemembers have a due

process right to speedy appellate review and used modified

Barker factors to evaluate whether appellate delay violates an

appellant’s due process rights. See also Diaz v. Judge Advocate

General of the Navy, 59 M.J. 34, 37-38 (C.A.A.F. 2003)

(servicemembers have a right to have their cases reviewed in a

timely fashion).

Courts have viewed appellate delays differently than trial

delays. “[N]ot every delay in the appeal of a case, even an

inordinate one, violates due process.” Rheuark v. Shaw, 628

F.2d 297, 303 (5th Cir. 1980). Most federal courts have not

created a “benchmark” for triggering a presumption of prejudice.

5
United States v. Moreno, No. 04-0698/MC

But see Harris, 15 F.3d at 1559-60 (Tenth Circuit has held that

a two-year appellate delay will create a rebuttable presumption

that the constitutional threshold has been crossed). See also

Barker, 407 U.S. at 523 (Court specifically rejected

establishing a specified time period to bring a defendant to

trial). The federal courts evaluate the peculiar circumstances

of each case to determine whether the length of the delay

provokes a constitutional inquiry. “[U]nless there is a period

of delay that appears, on its face, to be unreasonable under the

circumstances, ‘there is no necessity for inquiry into the other

factors that go into the balance.’” Smith, 94 F.3d at 209

(quoting Barker, 407 U.S. at 530). “[I]f the constitutional

inquiry has been triggered, the length of delay is itself

balanced with the other factors” in the Barker analysis. Id.

In extreme circumstances, the length of delay may give rise to a

strong “presumption of evidentiary prejudice” to a defendant’s

ability to defend himself at trial. See Doggett v. United

States, 505 U.S. 647, 655-57 (1992).1 But see Smith, 94 F.3d. at

212-13 (“We deem Doggett relevant, but we hold that the

presumption of prejudice, if any, in this case of three-year

appellate delay has been clearly rebutted.”) (emphasis added).

1
Under the Doggett presumption of prejudice analysis, if the
delay triggers the Barker analysis, there is a presumption of
prejudice and “the only question is how much ‘importance’ to
assign to that prejudice.” Smith, 94 F.3d at 212.

6
United States v. Moreno, No. 04-0698/MC

B. Applying the Barker Analysis to This Case

1. Length of the Delay

In this case, there has been delay of nearly 1,700 days

between the completion of Appellant’s court-martial and the

Court of Criminal Appeals’ decision. On its face, this delay is

sufficient to trigger an inquiry using the Barker analysis.

2. Reasons for the Delay

Although there were significant delays at all phases of the

post-trial process in this case, the greatest portion of that

delay involves the period from when the case was docketed at the

Court of Criminal Appeals until the briefing was complete. It

is the majority’s conclusion regarding this period of delay with

which I have the greatest disagreement. The appellate defense

counsel requested and was granted eighteen enlargements of time

in which to file a brief. The reason stated for enlargements

four through eighteen was “other case load commitments.” The

majority refuses to hold Appellant accountable for any portion

of this delay even though neither Appellant nor his defense

counsel requested assistance within the appellate division or

outside the appellate division from outside contractors or other

services’ appellate divisions to process this appeal. Despite

the lack of a request for assistance because of “case load

commitments,” incredibly, the majority concludes “there was no

7
United States v. Moreno, No. 04-0698/MC

evidence demonstrating that the enlargements were directly

attributable to Moreno.”

In my view, unless the appellate defense counsel was

ineffective or was acting unethically or outside the scope of

his authority, the actions he took to obtain additional delays

in the filing of the appellate briefs were performed for and on

behalf of Appellant. Presumably, appellate defense counsel

filed requests for delays with the knowledge of Appellant

because a reasonably effective counsel would have communicated

with his client. The majority ultimately lays the blame for the

delay at the feet of the Court of Criminal Appeals. It holds

that regardless of the appellate defense counsel’s case load

problems, the Courts of Criminal Appeals are responsible for the

“timely management and disposition of cases docketed at the

Courts of Criminal Appeals.”

This case reinforces the wisdom of the federal and state

courts placing the burden on Appellant to show prejudice. There

are a number of questions to be asked of defense counsel -- What

other cases did you have? How did you stagger them? Did you

prioritize the cases? What issues were present? What were the

difficulties in contacting Appellant? Was there a conflict in

Appellant’s wishes and your desires? Did you request assistance

from your supervisor?

8
United States v. Moreno, No. 04-0698/MC

The Government is simply not in a position to answer

questions as to why the defense counsel asked for extended

delays. See United States v. Lewis, 42 M.J. 1 (C.A.A.F. 1995).

Nor can the Government answer questions regarding the impact of

the requested delays on the strategy, theories, or theme of the

defense. Yet, contrary to the prevailing jurisprudence of

federal and state courts, the majority relieves Appellant from

his burden of demonstrating actual prejudice and incredibly

shifts the responsibility for the delay to the Government.

Thus, the majority has created an incentive for the defense to

request enlargements knowing they will not be asked these

questions absent a court order.

Delay must be examined on the basis of the facts in a

specific case and not based on the length of delay alone. In

fact, merely asking for numerous delays has ended up benefiting

Appellant. Based on the majority decision, I predict that

appellate courts will receive many more requests for

enlargements from appellate defense counsels in order to get the

benefit of the presumption of unreasonable delay in a speedy

appellate review scenario. It is incredible that while

recognizing this lengthy period of time is attributable to the

appellate defense counsel’s requests for delay, the majority

declines to hold Appellant accountable for any of it.

9
United States v. Moreno, No. 04-0698/MC

3. Appellant’s Assertion of His Right to a Timely Appeal

Appellant never asserted a post-trial speedy review right

or protested the length of delay in his case. While the demand

rule is not conclusive in the speedy trial or appellate review

context, it is extremely important in evaluating the length and

reason for the delay as well as whether there is any personal

prejudice. Barker, 407 U.S. at 531. A complaint or protest

would have at least indicated to the appellate court that

Appellant was dissatisfied with the pace of his appeal. The

determination of whether an appellant asserts his right to a

speedy post-trial review is “entitled to strong evidentiary

weight in determining whether [an appellant] is being deprived

of the right.” Id. at 532-33. The “failure to assert the right

will make it difficult for [an appellant] to prove he was denied

a speedy trial” review. Id. at 532.

This factor becomes more significant when there are a

number of options open to counsel and an appellant to complain

about the delay. These options could ensure expediting the

appeal to avoid any possible violation of post-trial delay. In

this case, there is no indication that Appellant made efforts to

prod appellate defense counsel or anyone else to expedite his

appeal. Yet the majority shifts the responsibility for the

entire period of delay onto the Government in spite of the

10
United States v. Moreno, No. 04-0698/MC

requests for delay by Appellant through his appellate defense

counsel.

What is the Government to do? Oppose defense requests for

delay because the delay will be attributed to it? Should the

Courts of Criminal Appeals deny defense requests for delays for

fear the delays will be attributed to it or the Government?

What is next? Will we begin to see appellate defense counsel

raise the issue that an appellant was denied an opportunity to

present his case on appeal because his reasonable request for a

delay for filing his brief was denied?

Although the Supreme Court rejected the rule that a

“defendant who fails to demand a speedy trial forever waives his

right,” the Court did state that “[t]his does not mean, however,

that the defendant has no responsibility to assert his right.”

Barker, 407 U.S. at 528. The principle set out in Barker is

that an appellant’s “assertion of or failure to assert his right

to a speedy trial is one of the factors to be considered in an

inquiry into the deprivation of the [speedy trial] right.” Id.

at 529. The application of this formula allows the courts

judicial discretion based on the circumstances as opposed to the

application of some rigid rule that does not provide for

consideration of the circumstances of the case. In its opinion,

the majority in effect overlooks any application of this factor

to the facts of this case even though it is a factor in the

11
United States v. Moreno, No. 04-0698/MC

Barker analysis. Thus, I disagree with the majority and the

weight, or lack thereof, they give to the absence of an

assertion of the right to a speedy post-trial review.

4. Prejudice to Appellant

With respect to assessing the fourth factor -- prejudice --

the Supreme Court provided further guidance. Prejudice should

be evaluated “in the light of the interests of defendants which

the speedy trial right was designed to protect.” Barker, 407

U.S. at 532. The interests are:

(i) to prevent oppressive pretrial incarceration; (ii)
to minimize anxiety and concern of the accused; and
(iii) to limit the possibility that the defense will
be impaired. Of these, the most serious is the last,
because the inability of a defendant adequately to
prepare his case skews the fairness of the entire
system.

Id.

Lower courts applying the Barker test to appellate delay

have adapted the prejudice factors to fit the circumstances of

convicted parties on appeal: “(1) prevention of oppressive

incarceration pending appeal; (2) minimization of anxiety and

concern of those convicted awaiting the outcome of their

appeals; and (3) limitation of the possibility that a convicted

person’s grounds for appeal, and his or her defenses in case of

reversal and retrial, might be impaired.” Harris, 15 F.3d at

1559 (quoting Rheuark, 628 F.2d at 303 n.8).

12
United States v. Moreno, No. 04-0698/MC

a. Prevention of Oppressive Incarceration Pending Appeal

Generally, incarceration will be considered “oppressive” if

an appellant is confined while the appeal is pending and the

substantive appeal is meritorious. See Cody v. Henderson, 936

F.2d 715, 719-21 (2d Cir. 1991). In this case, the meritorious

issue addressed by the Court concerns the denial of a challenge

for cause against a court member. There were no successful

issues regarding the sufficiency of evidence or the

admissibility of evidence. Theoretically, the Government will

be able to use the same evidence used at the original trial to

retry Appellant. There is no way, based on the facts and

evidence in this case, to conclude that Appellant’s

incarceration was oppressive or out of the ordinary for a person

convicted of an offense and sentenced to confinement.

Furthermore, Appellant was sentenced to six years of

confinement. The majority, without any documentary evidence on

which to rely, theorizes that Appellant was released from

confinement after about four years of confinement. Assuming the

majority is correct, apparently the delay in the appeal of

Appellant’s case did not affect his ability to obtain a minimum

release date and to be released from confinement when that date

was reached. Without knowing the outcome of the retrial, it is

only supposition as to whether Appellant’s incarceration was

excessive or oppressive.

13
United States v. Moreno, No. 04-0698/MC

b. Minimization of Anxiety and Concern While Awaiting

Outcome of Appeal

I agree with the majority that “the appropriate test for

the military justice system is to require an appellant to show

particularized anxiety or concern that is distinguishable from

the normal anxiety experienced by prisoners awaiting an

appellate decision” and that the anxiety is not “dependent upon

whether his substantive appeal is ultimately successful.” I

disagree with the majority’s conclusion that Appellant’s anxiety

was “distinguishable” because he had to register as a sex

offender upon his early release from confinement. This

consequence of Appellant’s conviction has been deemed a

collateral consequence of a conviction by numerous courts and

will not generally merit relief in those situations where an

appellant proceeds to trial without knowledge of such a

consequence. See State v. Young, 542 P.2d 20 (Ariz. 1975); Ray

v. State, 982 P.2d 931 (Idaho 1999); State v. Schneider, 640

N.W.2d 8 (Neb. 2002); Davenport v. State, 2000 ND 218, 620

N.W.2d 164; Mitschke v. State, 129 S.W.3d 130 (Tex. Crim. App.

2004); State v. Bollig, 2000 WI 6, 232 Wis. 2d 561, 605 N.W.2d

199; State v. Ward, 869 P.2d 1062 (Wash. 1994); Johnson v.

State, 922 P.2d 1384 (Wyo. 1996).

How the majority can now classify a sex offender

registration requirement as “distinguishable” anxiety is beyond

14
United States v. Moreno, No. 04-0698/MC

comprehension. The record contains no information concerning

the requirements for sexual offender registration in the state

of California where Appellant resides, and what, if anything,

will happen regarding the registration requirement for Appellant

after the findings in his case are set aside and he is awaiting

a new trial. The majority simply latches on to the assertion in

Appellant’s brief that he had to register as a sex offender upon

his release from confinement without any proof of registration

or what the effects of setting aside the conviction and retrying

Appellant would have on that requirement.

c. Limitation of Appellant’s Grounds for Appeal or

Defenses at Retrial

The most serious factor in analyzing the prejudice factor

is evaluating the ability of an appellant to assert: (i) his or

her arguments on appeal; and (ii) his or her defense in the

event of retrial or resentencing. See Barker, 407 U.S. at 532;

Harris, 15 F.3d at 1563. See also Smith, 94 F.3d at 211

(question is whether the delayed ruling by the appellate court

actually preserved any arguments the appellant would have

asserted on retrial or resentencing and whether Appellant’s

ability to assert these arguments was affected).

15
United States v. Moreno, No. 04-0698/MC

In this case, Appellant failed to establish any harm to his

ability to present a defense or retry his case.2 The substantive

issue raised by Appellant related to the military judge’s denial

of a challenge for cause against a panel member. It was a

technical issue and did not relate to the presentation of the

facts, the evidence, or defenses at trial. There is no danger

to any of his potential arguments or ability to present a

defense. At a retrial, the court member issue in this case will

be cured.

As to prejudice generally, one must recognize the

difference between pretrial delay prejudice and post-trial delay

prejudice. Pretrial delay prejudice involves planning a defense

at trial with live witnesses who may not have committed their

testimony either to an oral or written form. “When a full trial

has occurred, even if there is an inordinate post-trial delay,

the record of trial is preserved” and an appellant must make

some showing of prejudice to establish a due process violation.

Latimore v. Spencer, 994 F. Supp. 60, 71 (D. Mass. 1998). In

post-trial delay cases, there has been a conviction. Thus, the

same anxiety that might occur in a pretrial scenario does not

occur to the same extent in the post-trial scenario because the

defendant is no longer cloaked with the presumption of

2
The majority acknowledges that Appellant failed to “identify
any specific harm that he would encounter at a rehearing” and
that he “failed to establish prejudice under this sub-factor.”

16
United States v. Moreno, No. 04-0698/MC

innocence. Likewise, the concern that pretrial delay may affect

the defendant’s ability to mount a defense because memories will

dim or witnesses will become unavailable is not a concern with

post-trial delay.

In the post-trial scenario, the defendant has been

convicted after a full-fledged adversary proceeding and is given

a complete verbatim copy of the record, together with appointed

counsel and a right to appeal the case when the sentence extends

to one year of confinement and/or a punitive discharge.

Appellate review of military cases is much broader than in the

civilian sector because the intermediate civilian appellate

court has no factfinding capability. This procedure is

essential because it allows defendants to have a fair chance to

present persuasive arguments during the appellate process.

Appellate defense counsel have at their disposal the means

of identifying any prejudice that might otherwise arise from the

passage of time. If witnesses are not available, their former

testimony can be introduced under Military Rule of Evidence

(M.R.E.) 804(b)(1) and M.R.E. 801(d)(1)(A) and (B) or M.R.E.

803(5). Likewise, if memories fade, they can be refreshed under

M.R.E. 612. If there is a change in testimony, the parties have

a right to impeach the witness. M.R.E. 613. This verbatim

record obviates most of the problems of retrials. Absent a

showing at a United States v. DuBay, 17 C.M.A. 147, 37 C.M.R.

17
United States v. Moreno, No. 04-0698/MC

411 (1967), or motion hearing that Appellant is unable to

present a defense, or collect exculpatory evidence as a result

of the excessive delay, the charges should not be dismissed.

See also State v. Hall, 487 A.2d 166 (Vt. 1984) (defendant has

burden of showing substantial prejudice because of the delay).

The most problematic aspect of the majority’s opinion is

its application of the Barker prejudice factor. Appellant and

the majority in this case merely speculate as to the potential

harm. Rather than placing the burden on Appellant to show

prejudice, the majority is intent on placing the responsibility

for the delay on the Courts of Criminal Appeals. According to

the holding of the majority, the Courts of Criminal Appeals have

the responsibility for “the timely management and disposition of

cases” regardless of whether an appellant in fact suffers

prejudice as a result of post-trial delay, whether an appellant

makes efforts to foster the delay, or does nothing to assert his

right to a speedy review. The prejudice factor is the most

critical factor in evaluating whether Appellant’s due process

right to a speedy appellate review has been violated, yet the

majority gives this factor short shrift. I would conclude that

Appellant has not met his burden to demonstrate actual prejudice

by this post-trial delay.

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United States v. Moreno, No. 04-0698/MC

III. The Reality of the Application of
the Majority’s Specified Time Period

The majority does not adopt a “presumption of prejudice”

but a prospective “presumption of unreasonable delay” if certain

timelines are not met. The majority sets forth a “presumption

of unreasonable delay” to be triggered by the following events:

(1) No action by convening authority within “120 days of

the completion of trial”;

(2) Case not docketed with the service Court of Criminal

Appeals within “thirty days” of convening authority’s action;

and

(3) No decision by the service Court of Criminal Appeals

rendered within “eighteen months of docketing the case.”

Once the timeline is violated, the “presumption of

unreasonable delay” will exist, which will satisfy the first

Barker factor regardless of whether an appellant is sentenced to

or serving confinement. The timeline violation will then

trigger the Barker four-factor analysis. Any delay beyond the

time periods established must be “justifiable, case-specific

delays supported by the circumstances of that case and not

delays based upon administrative matters, manpower constraints

or the press of other cases.”

The majority stands presumptions on their heads, failing to

appreciate which party has the privileged information. By

19
United States v. Moreno, No. 04-0698/MC

shifting the responsibility to the Government rather than

requiring an appellant to demonstrate actual prejudice, the

Court overlooks that the evidence of prejudice is peculiarly

within an appellant’s control. Raising denial of due process

because of appellate delay does not constitute the waiver of the

attorney-client privilege and therefore puts the Government in a

very awkward position. This is why federal and state courts

have placed the burden on the appellant to show actual

prejudice.3

The majority has established a nonexclusive list of

potential remedies for those situations where a reviewing court

determines there is a denial of speedy post-trial or appellate

review. The remedy is supposed to be tailored to the

circumstances of the case:

The nature of that relief will depend on the
circumstances of the case, the relief requested, and
may include, but is not limited to: (a) day-for-day
reduction in confinement or confinement credit; (b)
reduction of forfeitures; (c) set aside of portions of
an approved sentence including punitive discharges;

3
The Georgia Supreme Court recently concluded:

[P]rejudice necessary to establish a due process
violation based on post-conviction direct appeal delay
is prejudice to the ability of the defendant to assert
his arguments on appeal and, should it be established
that the appeal was prejudiced, whether the delay
prejudiced the defendant’s defenses in the event of
retrial or resentencing.

Chatman v. Mancill, 626 S.E.2d 102, 109-10 (Ga. 2006). See
also Lopez v. State, 769 P.2d 1276, 1288-89 (Nev. 1989).

20
United States v. Moreno, No. 04-0698/MC

(d) set aside of an entire sentence, leaving a
sentence of no punishment; (e) a limitation upon the
sentence that may be approved by a convening authority
following a rehearing; and (f) dismissal of the
charges and specifications with or without prejudice.
Clearly this range of meaningful options to remedy the
denial of speedy post-trial processing provides
reviewing authorities and courts with the flexibility
necessary to appropriately address these situations on
a case-by-case basis.

Certainly, it is a much more cumbersome and time-consuming

process to try a case, transcribe a record, have counsel,4 the

military judge, the staff judge advocate, and the convening

authority review the records of trial, have the convening

authority take action on the case, and then, make the requisite

number of copies of the record and exhibits to forward to the

Courts of Criminal Appeals than it is for an appellate court to

review a completed record and consider and decide the issues

raised. Yet, the majority has set out an arbitrary timeline for

the post-trial processing of a case in the field without regard

to the complications and complexity of the case and the

realities of today’s mobile, deployed forces.

4
Pursuant to R.C.M. 1105(c)(1), an accused has ten days upon
service of the authenticated record of trial or the staff judge
advocate’s recommendation to submit matters for consideration.
This time period may be extended for an additional twenty-day
period. If the staff judge advocate’s addendum contains new
matter, then the accused is entitled to another ten days to
respond. The process of post-trial submissions by the defense
generally will consume at least thirty to forty days of the 120-
day time limit set by the majority.

21
United States v. Moreno, No. 04-0698/MC

The majority, who does not suffer the same complications

and complexities of those in the field, and who receives the

benefit of receiving a completed, typed record to review, has

provided that those individuals in the field should have

essentially five months to get a completed record to the service

courts for docketing. Then, the majority provides the Courts of

Criminal Appeals with eighteen months from docketing to

completion of review. This Court has not always followed its

own standard of completing review within eighteen months. I

suggest that if we are going to set up rules, the rules might

apply to ourselves as well.

The Court’s master docket reveals that as of February 7,

2006, there were three cases over 1,000 days old, which is more

than the eighteen-month standard set out by the majority for the

Courts of Criminal Appeals to issue opinions. There were also

more than thirty cases in which the petition had been granted

and no action had been taken for over 400 days. Additionally,

there were more than twenty-four cases where petitions had been

pending for over eighteen months in which no action had been

taken on the petition.

My purpose in mentioning these delays is not to be critical

of this Court, but rather to underscore that there are valid

reasons for the length of time it takes to conduct a thorough

appellate review of a case whether it be before this Court or a

22
United States v. Moreno, No. 04-0698/MC

Court of Criminal Appeals.5 Many cases are very complex and case

load commitments of counsel are often legitimate reasons to seek

enlargements of time in order to represent one’s client

adequately and ethically. Let me be very clear that I do not

condone many of the delays we have encountered in the military

justice system, including the delay in this case. I share the

concerns of the majority and urge the appropriate legislative

and executive branch officials to take all necessary steps to

address resource and other issues that impact on the efficient

and timely processing of cases for appellate review. I do not,

however, believe justice is served by overstepping our judicial

role and establishing timeline rules, albeit cloaked in the

guise of presumptions, for the post-trial processing of cases.

The majority acknowledges in its opinion that timelines in

the past have not worked, but yet they plug ahead establishing

such rules.6 We are not a rulemaking body and, if we were, we

should not adopt a bright-line rule unless it would approximate

5
Each case must be evaluated for “unreasonable” post-trial delay
based on the facts and circumstances of the case and not some
arbitrary timeline imposed by an appellate court.
6
See United States v. Burton, 21 C.M.A. 112, 118, 44 C.M.R. 166,
172 (1971) (establishing a three-month rule for a pretrial
delay), modified by United States v. Driver, 23 C.M.A. 243, 246,
49 C.M.R. 376, 379 (1974)(explicitly changing the rule from
“three months” to “ninety days”); Dunlap v. Convening Authority,
23 C.M.A. 135, 138, 48 C.M.R. 751, 754 (1974) (establishing a
ninety-day rule for a post-trial delay). But see United States
v. Kossman, 38 M.J. 258, 261 (C.M.A. 1993) (overruling Burton
and Driver); United States v. Banks, 7 M.J. 92, 93-94 (C.M.A.
1979) (overruling Dunlap).

23
United States v. Moreno, No. 04-0698/MC

a correct result. These rules will not solve the problem and

will cause considerable anxiety among those who have to do the

yeoman’s work of getting the record to the appellate courts. I

also believe that, in the haste to meet these arbitrary

timelines, we will see more errors or mistakes in the post-trial

processing and in the appellate review of cases, poorly

constructed records of trials, and even the trampling of the

rights of the accused. We have already seen situations where

appellate defense counsel, in an attempt to move cases along,

file pleadings before giving their clients a reasonable

opportunity to raise issues with them and the appellate courts.

In evaluating what remedy it should grant in regard to the

lengthy post-trial delay in this case, the majority looks at

potential remedies without considering the seriousness or the

nature of the offenses involved. I respectfully dissent from

the majority’s conclusion of a violation of Appellant’s right to

a speedy post-trial review absent a showing of actual prejudice

to the findings or sentence by Appellant. It is not enough for

an appellant to claim anxiety as to the outcome of the appeal.

See People v. Missouri, 299 N.W.2d 346, 352-53 (Mich. Ct. App.

1980). Even in the pretrial scenario, it has been held that a

ten-year delay does not create a presumption of prejudice. See,

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United States v. Moreno, No. 04-0698/MC

e.g., United States v. Mohawk, 20 F.3d 1480, 1488 (9th Cir.

1994). There must be a showing of actual prejudice.7

IV. Conclusion

This Court is not a rulemaking body. Attempts at rulemaking

in the past have proven to be unworkable, and we should not

venture into that area again. The Court should leave the

rulemaking function where it belongs -- to the executive and

legislative branches. If the facts of this case establish a

violation of the Appellant’s right to a speedy post-trial review

upon applying the Barker test, then so be it. But, this Court

should not create rules that exceed the bounds of the separation

of powers doctrine, and that will not accomplish the desired

result.

7
See, e.g., Elcock v. Henderson, 28 F.3d 276, 279 (2d Cir. 1994)
(absent showing actual prejudice, no violation of due process
for eight-year delay between conviction and appeal); Heiser v.
Ryan, 15 F.3d 299, 303-04 (3d Cir. 1994) (absent actual
prejudice thirteen-year delay was not a violation of due
process); United States v. Alston, 412 A.2d 351, 361-62 (D.C.
1980) (must show actual prejudice); State v. Chapple, 660 P.2d
1208 (Ariz. 1983) (en banc) (must show actual prejudice).

25