IN THE CASE OF
UNITED STATES, Appellee
Aaron A. OESTMANN, Aviation Support Equipment Technician Airman
Crim. App. No. 200301443
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.
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.
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
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
focusing upon the absence of an objection to this delay to the
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.
21 C.M.A. 112, 44 C.M.R. 166 (1971), and Dunlap v. Convening
23 C.M.A. 135, 48 C.M.R. 751 (1974), in part, based upon our confidence
the system would maintain its dedication to speedy disposition and
processing of courts-martial. See
While I am not opposed
to again considering draconian rules to protect the due process rights
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;
prejudice to the appellant.” Toohey, 60 M.J. at 102; Barker v. Wingo,
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
Appeals, a convicted servicemember has virtually no forum in which to
about delay in forwarding the record. While
trial defense counsel has an obligation to continue representation, see
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
trial in ways that neither party can prove or, for that matter,
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
decision of the trial court on factual sufficiency beyond the
Article 66(c), UCMJ, to take into account the fact that the trial court
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
circuit courts have split on whether its rationale is applicable to
delays as well. Accord
Smith; Taylor v. Hargett, 27 F.3d 483, 486 (10th Cir.