IN THE CASE OF
UNITED
STATES, Appellee
v.
Aaron A. OESTMANN, Aviation Support Equipment Technician Airman
No. 04-0723
Crim. App. No. 200301443
Argued
Decided
EFFRON, J., delivered the opinion of the Court, in which GIERKE, C.J., and CRAWFORD and BAKER, JJ., joined. ERDMANN, J., filed a separate opinion concurring in part and dissenting in part.
Counsel
For Appellant: Lieutenant Stephen C. Reyes, JAGC, USNR (argued); Commander Michael Wentworth, JAGC, USNR (on brief); Lieutenant Colin A. Kisor, JAGC, USNR.
For Appellee: Major Raymond E. Beal II, USMC (argued); Commander Charles N. Purnell, JAGC, USN (on brief); Colonel William K. Lietzau, USMC.
Military Judge: B. W.
MacKenzie
This opinion is
subject to
editorial correction before final publication.
Judge EFFRON delivered the opinion
of the Court.
On
Within six weeks after completion of
trial, the military judge authenticated the eighty-two-page record. A month later, on
The case was marked as received in
The
present appeal concerns Appellant’s right to timely appellate review. See
In the course of addressing the
issue of
timeliness, the court below said: “The appellant, who did not raise the
issue
before the convening authority acted, has not shown that the delay was
unreasonable.” 60 M.J.
at 664. The timeliness issue in
the present case, however, does not involve the period preceding the
convening
authority’s action on the case. Here,
the convening authority fulfilled his discretionary responsibility and
acted on
the case seventy-eight days after the sentence was adjudged. The issue in this case involves the period
after the convening authority acted -- the unexplained and unusual
period of more
than one year and five months to accomplish the routine,
nondiscretionary,
ministerial task of transmitting the record from the convening
authority to the
Navy-Marine Corps Appellate Review Activity.
Because the court below did not focus on the relevant period of
delay,
we decline to rely on the court’s conclusion that relief would not be
warranted
for unreasonable and unexplained delay in this case.
The decision of the
United States Navy-Marine Corps Court of Criminal Appeals is affirmed
as to the
findings and set aside as to the sentence.
The record is returned to the Judge Advocate General of the Navy
for
remand to the Court of Criminal Appeals for review of the sentence
under Toohey,
Diaz, Tardif, and Jones. Thereafter,
Article 67,
UCMJ, 10 U.S.C. § 867 (2000), will apply.
ERDMANN,
J. (concurring in part and dissenting in part):
I agree with the conclusion
of the majority that the Navy-Marine Corps Court of Criminal Appeals
erred by
focusing upon the absence of an objection to this delay to the
convening
authority. With respect to the remedy, I
would address the legal error here, de novo, without returning this
case to the
Court of Criminal Appeals for further review.
The Government did not
offer a defense or explanation for this 511-day delay.
When queried during oral argument, the
Government acknowledged that the only task required to get the record
to the
appellate review activity was the ministerial act of boxing it up and
mailing
it. Although there are other tasks such
as preparation of the promulgating order and completion of form
checklists, all
tasks associated with forwarding the record are routine.
See, e.g., Rules for
Courts-Martial 1111 and 1114. These
tasks require no discretion and they should take a matter of days, not
seventeen months. Even in an
extraordinary case, completion of these routine tasks should take no
longer than
thirty days.
This court abandoned
the so-called “draconian” ninety-day rules of United States v.
Burton,
21 C.M.A. 112, 44 C.M.R. 166 (1971), and Dunlap v. Convening
Authority,
23 C.M.A. 135, 48 C.M.R. 751 (1974), in part, based upon our confidence
that
the system would maintain its dedication to speedy disposition and
post-trial
processing of courts-martial. See
While I am not opposed
to again considering draconian rules to protect the due process rights
of
servicemembers convicted by courts-martial should we continue to see
unreasonable post-trial delays, this case does not require such a
drastic remedy. Four factors are
considered to determine
whether an appellate delay violates an appellant's due process rights: “(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 the appellant.” Toohey, 60 M.J. at 102; Barker v. Wingo,
407
(1)
Length of Delay
The length-of-delay factor “is actually a double enquiry.”
Doggett
v.
The 511-day delay to ship the record
of trial is excessive and unreasonable on its face, therefore
triggering the
constitutional inquiry. As noted, the
Government acknowledged that the only task required to get the record
to the
appellate review activity was the ministerial act of boxing it up and
mailing
it. This factor weighs heavily in favor
of Oestmann.
(2)
Reason for Delay
The Government did not
give any reason for the delay. See
United States v. Dunbar, 31 M.J. 70, 73 (C.M.A. 1990) (delay in
forwarding a record of trial to the Court of Criminal Appeals is “the
least
defensible of all” post-trial delays).
This factor weighs heavily in favor of Oestmann.
(3) Oestmann’s
Assertion of the Right
Oestmann did not
assert his right to a speedy forwarding of the record.
Normally a lack of action would weigh against
Oestmann. But after action is taken by
the convening authority and before a case is docketed at the Court of
Criminal
Appeals, a convicted servicemember has virtually no forum in which to
complain
about delay in forwarding the record. While
trial defense counsel has an obligation to continue representation, see
(4)
Prejudice
To establish prejudice, Oestmann
argues that he was denied a meaningful opportunity for relief in that
the Court
of Criminal Appeals’ decision reducing his sentence had no practical
effect
because of the delay. The Government
counters that there is no prejudice because even without this delay the
Navy-Marine Corps court would not have ruled before Oestmann was
released from incarceration.
While I question the wisdom of the
Government in arguing that the normal delay at the lower court is so
extreme
that even without this additional 511-day delay, that court would not
have ruled
on Oestmann’s appeal before he was released from incarceration, I need
not
resolve that dispute to find prejudice here.
The Supreme Court
found that “excessive delay presumptively compromises the reliability
of a
trial in ways that neither party can prove or, for that matter,
identify.” Doggett
v.
Any delay that reflects
a disregard for the rights of convicted servicemembers is troublesome. Delays between the court-martial and review
by the Courts of Criminal Appeals are particularly egregious. Review at a Court of Criminal Appeals
“involves a fresh, impartial look at the evidence, giving no deference
to the
decision of the trial court on factual sufficiency beyond the
admonition in
Article 66(c), UCMJ, to take into account the fact that the trial court
saw and
heard the witnesses.”
The unique nature of review under
Article 66(c) “calls for, if anything, even greater diligence and
timeliness
than is found in the civilian system.” Diaz,
59 M.J. at 39.
Therefore, I would reverse the decision of the Court of Criminal
Appeals
and set aside the findings and sentence.
1 The fact that
the Government views a congressional complaint as an appropriate avenue
for a
servicemember to pursue when confronted with post-trial delay merely
demonstrates that the current system is flawed.
2 While Doggett dealt with a speedy
trial delay,
circuit courts have split on whether its rationale is applicable to
appellate
delays as well. Accord
Smith; Taylor v. Hargett, 27 F.3d 483, 486 (10th Cir.
1994). Contra