IN THE CASE OF
UNITED STATES, Appellee
v.
Anthony L. JONES, Lance Corporal
No. 02-0060
Crim. App. No. 200100066
Argued
Decided
GIERKE, C.J., delivered the opinion of the Court, in which EFFRON, BAKER, and ERDMANN, JJ., joined. CRAWFORD, J., filed a dissenting opinion.
Counsel
For Appellant: Captain Richard A. Viczorek, USMC (argued); Commander George F. Reilly, JAGC, USN, and Major Eric P. Gifford, USMC (on brief).
For Appellee: Major Robert M. Fuhrer, USMCR (argued); Commander Charles N. Purnell, JAGC, USN, and Captain Glen R. Hines Jr., USMC (on brief); Colonel R. M. Favors, USMC, Colonel William K. Lietzau, USMC, Commander R. P. Taishoff, JAGC, USN, and Lieutenant Christopher J. Hajec, JAGC, USNR.
Military Judge: J. F. Havranek
This opinion is subject to
editorial
correction before final publication.
Chief Judge GIERKE delivered the opinion of the Court.
The lower court found excessive post-trial delay, but declined to grant relief because it determined that the delay did not prejudice Appellant and that the sentence was appropriate. Like the lower court, we conclude that the unexplained post-trial delay in this case was unreasonably lengthy. The key issue before this Court is whether the unreasonable post-trial delay prejudiced Appellant as a matter of law. Appellant’s own declaration and declarations from three officials of a potential employer indicate, with various degrees of certainty, that he would have been considered for employment or actually hired if he had possessed a discharge certificate (DD-214). We hold that these unrebutted declarations were sufficient to demonstrate prejudice.
I. BACKGROUND
On
“Even
though the verbatim record of trial is
only 37 pages in length, it took over 6 months, until [July 17,] 2000,
for the
record to be transcribed, authenticated, and served on Appellant’s
trial
defense counsel.”3 Another
sixty-six days would pass before the
staff judge advocate issued the Rule for Courts-Martial 1106
recommendation. That document was not
served on the defense counsel until
But
the convening authority’s action did not end the delay in this case. The
In
October 2001, the
Before the lower
court, Appellant submitted a declaration concerning his post-trial
activities,
as well as three declarations from officials of a potential employer. In May and June of 2000, Appellant completed
a course of study at a truck driver’s school and received a truck
driver’s
license. In July 2000 -- a bit more than
four months after he went on appellate
leave and
approximately six months after his court-martial -- Appellant applied
for a job
with U.S. Xpress Enterprises, a national trucking company.
A declaration from Mr.
Joseph Fuller, the director of U.S. Xpress’s Driver Services
Department, stated
that Appellant had applied for a position as a driver.
Mr. Fuller explained that under company
policy, job applicants who were in the military must provide “a form
DD-214,
Proof of Discharge Certificate. Since
Anthony Jones was unable to provide such documentation, we were unable
to
complete a check of his employment background in order to process his
application. As such, he was not
considered for employment.” Mr. Fuller
was aware of Appellant’s court-martial conviction and pending
bad-conduct
discharge. Nevertheless, “Under our
current company policy, Anthony Jones would not have been excluded from
consideration for employment based solely upon the adverse discharge
from the
armed forces. Instead, our company would
evaluate the underlying conduct that led to the offenses.”
Mr. Fuller observed that “given the uniquely
military offenses committed by Anthony Jones and, assuming that he was
otherwise qualified, he would have been seriously considered for
employment
during the summer of 2000 had he possessed a DD-214.”
Appellant also presented a declaration from
Ms. Afton Yazzie, an Assistant Instructor with U.S. Xpress. She stated that Appellant participated in a
company orientation program in July 2000.
He was invited “to attend the orientation based upon his initial
application and qualifications. Persons
attending the company orientation are generally hired upon successful
completion as they are pre-screened to ensure that they have the proper
licensing and background requirements.”
But Appellant’s “employment application had been flagged as he
was
missing required proof of past employment.”
Ms. Yazzie’s declaration stated that “[d]ue solely
to his inability to meet this
requirement, he was told that he could not complete orientation and a
decision
on his employment with U.S. Xpress was deferred until he could provide
a
DD-214.” She also explained that
Appellant applied again later in 2000 and twice in 2001, but each time
“the
decision was made that his lack of a DD-214 prevented his employment.” The final declaration was from Ms. Brenda
Cole, an orientation instructor with U.S. Xpress. Ms.
Cole’s declaration was the most certain
of the three. She specifically stated,
“I can personally attest that had Anthony Jones provided a DD-214 in
July 2000,
he would have been hired as a truck driver with U.S. Xpress at the
conclusion
of the orientation program.” She also
recounted that as Appellant “was leaving the orientation, one of our
recruiters
told him to reapply for employment once he received his DD-214 and he
would be
hired.”
A position with U.S.
Xpress would have produced an average salary of $3,500 to $4,000 per
month, in
addition to substantial employee benefits.
When Appellant did not obtain a position with U.S. Xpress, he
obtained
alternative employment as a delivery truck driver earning about $7 to
$10 per
hour working part-time or through temporary agencies.
The Government
presented no information to rebut any of these declarations.
The
Given
this finding of unexplained excessive
post-trial delay, the central legal issue then became whether the delay
had
prejudiced Appellant. The
II. DISCUSSION
Appellant’s trial lasted fifty-five minutes
and resulted in a thirty-seven-page record of trial.
Yet 363 days elapsed before the record was
docketed with the
Determining
whether post-trial delay violates an
appellant’s due process rights turns on four factors:
(1) the length of the delay; (2) the reasons
for the delay, (3) the appellant’s assertion of the right to a timely
appeal;
and (4) prejudice to the appellant.16
As we have explained, the “length of delay” factor serves two
functions: “First, the length of delay
is to some extent a triggering mechanism, and unless 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.”17 Second, “if the
constitutional inquiry has been triggered, the length of delay is
itself
balanced with the other factors and may, in extreme circumstances, give
rise to
a strong presumption of evidentiary prejudice affecting the fourth Barker
factor.”18
Because we conclude that the post-trial delay in this case was
facially
unreasonable, we will analyze the remaining three factors.
The Government has
offered no justification for the appellate delay in this case, and the
record
fails to disclose any.
The
record also reflects that Appellant
complained about the delay in post-trial processing.
The lower court found that, “on two or more
occasions,” Appellant “contacted a junior member at his unit, explained
the
problems that he was having in obtaining employment because of the
delay in
obtaining his DD-214, and made clear his desire to move the process
along more
rapidly.”19 The lower
court also noted that the record
“contains a series of letters and faxes documenting Appellant’s
subsequent
efforts to engage the Marine Corps, his U.S. Senator, and his appellate
defense
counsel in expediting the processing of his case.”20
In
our view, the most critical issue in this case is whether the
excessive post-trial delay prejudiced Appellant.21 Unlike the lower court,
we conclude that it did.
Whether Appellant has
established prejudice is a legal question subject to de novo review.22 We
have often recognized interference with post-military employment
opportunities
as a form of prejudice that warrants relief for unreasonable post-trial
delay.23 The record indicates that as a result of the unreasonable
post-trial delay, Appellant has suffered this form of prejudice.
Ms. Cole’s
declaration affirmatively stated
that, based on her personal knowledge, Appellant would have been hired
by U.S.
Xpress if only he had a DD-214. If that
were the only document that Appellant had submitted, it would seem
unquestionable that he has established that the unreasonable post-trial
delay
prejudiced him. But, in addition to his
own declaration, Appellant submitted two more declarations from U.S.
Xpress
officials. One of these, executed by the
director of the Driver
Services Department, stated
that had Appellant had his
DD-214, he would merely “have been seriously considered for employment.”
The
Government argues that Appellant was not prejudiced by the excessive
delay in
this case. At oral argument, the
Government observed that the commercial driver’s license that Appellant
presented in support of his prejudice claim was issued in October 2000,
several
months after U.S. Xpress considered him for a position.
The Government also observes that Appellant
applied for a position with U.S. Xpress approximately six months after
his
court-martial ended. Even if the
post-trial review had been handled with utmost speed, the case would
certainly
have remained on appellate review at that point and Appellant would not
have
had his DD-214.
We
conclude, however, that Appellant has
demonstrated on-going prejudice. His
declaration -- which the Government has never rebutted -- indicated
that U.S.
Xpress officials told Appellant that he should contact them again once
he
received his DD-214. Ms. Yazzie’s
declaration indicated that Appellant reapplied to U.S. Xpress in the
fall of
2000, January 2001, and May 2001. Ms.
Yazzie also indicated that Appellant “was, and still is to my
knowledge,
invited to apply again once he obtains a DD-214.” So
Appellant’s ability to have his employment
application considered by U.S. Xpress was prejudiced after he obtained
the
commercial driver’s license attached to his declaration24 and after he
likely would have received a DD-214 if only his post-trial review had
been
completed within a reasonable time.
No
speculation is necessary to conclude
that the unrebutted declarations establish that the unreasonable
post-trial
delay prejudiced Appellant. Nor do the
declarations conflict on this point: all
four agree that Appellant would have been considered for a
position with
U.S. Xpress if he had his DD-214. The
issue in this case is whether Appellant was prejudiced by the
unreasonably
lengthy delay, not whether he had a guaranteed offer of employment. In
Despite
the four unrebutted declarations
Appellant has submitted to demonstrate prejudice, the dissent engages
in
unsupported supposition to reject their import.
The simple answer to the dissent’s speculation is that the
Government
had an opportunity to rebut the declarations but did not do so. Three of the four declarations at issue were
executed by officials of U.S. Xpress, who have no apparent connection
to either
party in this case. If, as the dissent
supposes, U.S. Xpress would not have offered Appellant a position if
its hiring
officials were aware of the extent of his unauthorized absences, then
the
Government could have obtained and submitted to the lower court
evidence
demonstrating that point. The Government
did not. Rather, the Government provided
no counterevidence to the lower court either before or after that court
attached the four declarations to the record.
It is, therefore, appropriate to
accept the
content of the unrebutted declarations, rather than guessing as to what
the
declarants would have said if they hypothetically had access to the
information
that the dissent discusses. This is
consistent with our well-established approach to supplementing the
factual
record with affidavits while the case is on appeal:
“if the affidavit is factually adequate on
its face to state a claim of legal error and the Government either does
not
contest the relevant facts or offers an affidavit that expressly agrees
with
those facts, the court can proceed to decide the legal issue on the
basis of
those uncontroverted facts.”25 This is such
a case. By considering these unrebutted
declarations,
which were already attached to the record by order of the lower court,
we are
not engaging in fact-finding. Rather, we
are applying the law to unrebutted facts contained within the record,
which is
a standard role of an appellate court.26
We also disagree with
the dissent’s
suggestion that in lieu of presenting a DD-214, Appellant could have
satisfied
his potential employer by providing an affidavit from his defense
counsel
explaining his status or a copy of his record of trial.
Mr. Fuller’s declaration indicates that it
was the lack of the form itself –- and not the absence of information
from that
form –- that disqualified Appellant as a prospective employee. Some employers’ insistence that veterans
applying for jobs present a DD-214 is understandable.
They may be reluctant to devote time and
money to train a prospective employee without documentation
demonstrating that
the individual is no longer on active duty.
But regardless of whether Appellant’s potential employer should
have required a DD-214 as a condition of employment, it appears that
the
potential employer did. The
unreasonable post-trial delay in this case prevented Appellant from
satisfying
that requirement.
We
therefore conclude that Appellant was
prejudiced by the facially unreasonable post-trial delay.
Balancing the four factors, we hold that the
post-trial delay violated Appellant’s due process rights.
The same evidence that supports the due process
test’s prejudice factor also demonstrates prejudice for purposes of
Article
59(a), UCMJ.27 Accordingly,
Appellant is entitled to relief.
III.
REMEDY
Because
this case involves a finding of
legal error accompanied by Article 59(a) prejudice, we may order a
remedy
ourselves rather than remanding the case for that purpose.
We consider ordering relief ourselves to be
particularly appropriate to bring a close to the overly prolonged
post-trial
proceedings in this case. Formulating
such a remedy is an exercise of authority under Article 59(a) to
eliminate
material prejudice to Appellant’s due process rights; it is entirely
distinct
from the Court of Criminal Appeals’ Article 66(c) sentence
appropriateness
powers.
In
Tardif, we considered whether a court that
finds unexplained
and unreasonable post-trial delay can grant relief “short of dismissal
of the
charges.” 28 We noted that Dunlap v. Convening Authority29 adopted a universal remedy for unreasonable post-trial
delay: dismissal of the charges and
specifications. But in Tardif, we
also recognized
criticisms of “the draconian
remedy required by Dunlap
and its progeny.”30 We cited with approval
the pre-Dunlap rule that “denial
of the right to
speedy trial resulted in dismissal of the charges only if reversible
trial
errors occurred and it was impossible to cure those errors at a
rehearing
because of the excessive post-trial delay.”31
In Tardif, we
noted that “appellate courts
are not limited to either tolerating
the intolerable or giving an appellant a windfall.”32 Rather, in cases
involving unreasonable post-trial delay, courts should “tailor an
appropriate
remedy, if any is warranted, to the circumstances of the case.”33
In
this case, an appropriate remedy is to disapprove the bad-conduct
discharge. Appellant pleaded guilty, and
nothing that has occurred since trial has suggested that the findings
are not
accurate. Setting aside the findings
would be a windfall for Appellant.
Setting aside the
bad-conduct
discharge is a remedy more proportionate to the prejudice that the
unreasonable
post-trial delay has caused. The
post-trial delay has had an adverse effect on Appellant’s ability to
find
employment. Removing the bad-conduct
discharge’s adverse effect on Appellant’s employment opportunities may
help to
restore him to the position he would have been in had the post-trial
review
been accomplished with reasonable speed.
IV.
DECISION
The portion of the United
States Navy-Marine Corps Court of Criminal Appeals’ decision affirming
the
bad-conduct discharge is reversed. The
bad-conduct discharge is set aside. The
remainder of the Navy-Marine Corps Court of Criminal Appeals’ decision,
which
affirmed the findings and confinement for forty-five days (as partially
suspended by the convening authority) and reduction to pay-grade E-1,
is
affirmed.
1 10 U.S.C. §§ 886, 887 (2000).
2 United
States v. Jones, No. NMCM 200100066, 2003
CCA LEXIS 155, at *3, 2003 WL 21785470, at *1 (N-M.
4 United
States v. Jones, 57 M.J. 443 (C.A.A.F. 2002) (citing United
States v.
Tardif, 57 M.J. 219 (C.A.A.F. 2002)).
5 United
States v. Jones, No. NMCM 200100066,
2003 CCA
LEXIS 155, 2003
WL 21785470 (N-M.
6
7
8 Jones, 2003 CCA LEXIS 155 at *7, 2003 WL 21785470 at
*3.
9
10
11
12
13
14 57 M.J. 219
(C.A.A.F. 2002).
15 60 M.J. 100
(C.A.A.F. 2004).
16
17
18 60 M.J. at
102 (quoting Smith,
94 F.3d at 209) (interal quotation marks omitted); Doggett v.
United States,
505
19
Jones, 2003 CCA LEXIS 155, at *21, 2003 WL 21785470, at
*7.
21 Of course, in the
exercise of their unique Article 66(c) sentence appropriateness powers,
the
Courts of Criminal Appeals retain the authority to grant sentence
relief for
unexplained and unreasonable post-trial delay even absent prejudice. See
22 See United
States v. Diaz, 45 M.J. 494, 496 (C.A.A.F. 1997) (“We hold that a de-novo-review
standard to assess prejudice [is]
required by Article
59(a), UCMJ, 10 USC § 859(a) . . . .”); Tardif, 57 M.J. at 228
(Sullivan,
S.J., dissenting) (“We review a Court of Criminal Appeals decision on
prejudice
resulting from post-trial delay on a de novo basis.”).
23 See,
e.g., United States v. Sutton, 15 M.J. 235 (C.M.A. 1983); United
States v. Gentry, 14 M.J. 209 (C.M.A. 1982) (summary disposition); United
States v. Clevidence, 14 M.J. 17 (C.M.A. 1982).
24 We also note
that Appellant may
have previously received another commercial driver’s license issued
before he
attended the U.S. Xpress orientation.
25
26 See
generally 1 Steven Alan
Childress & Martha S. Davis, Federal Standards of Review §
2.18 (3d
ed. 1999).
28 Tardif, 57 M.J.
at 224. We
cite Tardif only for its discussion of the appropriate remedy
for
unreasonable post-trial delay.
29 23 C.M.A. 135, 48
C.M.R. 751 (1974).
31
CRAWFORD, Judge (dissenting):
The
majority
converts the dicta in United States v. Shely, 16 M.J. 431, 433
(C.M.A. 1983),
to a holding in this case. Cf.
In concluding that Appellant has suffered prejudice, the majority disregards not only our precedent requiring a showing of actual prejudice, United States v. Jenkins, but also common sense. None of the affiants had full knowledge of Appellant’s military record when they executed their affidavits. Nor do those affidavits -- read separately or together -- raise more than a mere inference that Appellant would have been employed but for the absence of a DD Form 214.1
There are three carefully crafted affidavits in this case from: Ms. Brenda Cole (an orientation instructor), Mr. Joseph Fuller (director, Driver Services Department), and Ms. Afton Yazzie (an assistant orientation instructor). No affiant claims to have had hiring authority and only Mr. Fuller acknowledges Appellant’s pending bad-conduct discharge. Ms. Cole, who claims no connection to the hiring process, sagely swears “that had Anthony Jones provided a DD [Form] 214 in July 2000, he would have been hired as a truck driver with U.S. Xpress at the conclusion of the orientation program.” (Emphasis added.) Ms. Yazzie -- also unconnected to the hiring decision and claiming no source of knowledge other than Appellant -- avers, in various ways, that the absence of a DD Form 214 prevented a hiring decision in Appellant’s case. Mr. Fuller, whose job title implies hiring authority, avers only that “given the uniquely military offenses committed by Anthony Jones and, assuming that he was otherwise qualified, he would have been seriously considered for employment during the summer of 2000 had he possessed a DD [Form] 214.” (Emphasis added.)
The common ground shared by these affidavits is not an unqualified statement that Appellant would have been hired as a truck driver had he possessed a DD Form 214. What these affidavits share is a carefully woven series of exceptions, exclusions, and restrictions wide enough through which to drive a truck. Regarding in particular the statement of Mr. Fuller -- the one affiant who even implies having hiring authority – one need look no further than the plain words of the affidavit to discern its true character. The phrases “Anthony Jones would not have been excluded from consideration for employment based solely upon the adverse discharge” and “assuming that he was otherwise qualified, he would have been seriously considered for employment” were likely crafted less to suggest the legal prejudice required by this Court, and more to negate any inference of factual prejudice that might potentially be alleged by Appellant in a civil court.
There is simply no indication in any of these documents that any of these individuals was aware of Appellant’s repeated absences from work, his service record, or his financial difficulties. Far from suggesting that the Government “interfered” with Appellant’s employment opportunities, everything we are asked to consider compels a conclusion that Appellant concealed his absences, service record, and financial difficulties to secure even the shrewdly worded affidavits he offers this Court. In that regard, Mr. Fuller’s reference to Appellant’s “uniquely military offenses” sheds welcome light on the characterization Appellant may have lent his past, absent documentation to the contrary. Mr. Fuller noted that Appellant was “unable to provide such documentation . . . [as to] his employment background in order to process his application.” Since Appellant’s military record would contain all of his absences -- not just the absences to which he pleaded guilty -- it is not difficult to understand why Appellant failed to disclose his personnel records, or his record of trial, or seek an alternative to the DD Form 214.
Although the majority accurately quotes Mr. Fuller’s affidavit in the background section of the lead opinion, I cannot agree with the majority’s later, implicit, factual determination that Mr. Fuller’s qualifying phrase, “assuming that he was otherwise qualified” is entitled to no weight in evaluating whether Appellant “would have been seriously considered for employment.” Not surprisingly, the factual finding of prejudice collapses when you consider the statement, ”assuming he was otherwise qualified,” and Mr. Fuller’s guarded inclusion of that qualifying phrase compellingly invites the conclusion of no error.
The
majority
cannot engage in factual findings. As we
recently explained, “[i]n Ginn, we announced . . . six
principles to be
applied by the courts of criminal appeals in disposing of post-trial,
collateral, affidavit-based claims, such as ineffective assistance of
counsel.
. . .”
At the very least, if there is a factual issue, this case should be remanded to the court of criminal appeals, which has the power to analyze affidavits and if, as the majority indicates, further evidence is needed, such evidence could be gathered by the parties and submitted to a court that has fact-finding authority.
The DD Form 214 is a one-page document that would show Appellant’s punitive discharge, his schooling, his time in service, etc., as well as his “bad time.” The record clearly shows that Appellant’s record is anything but stellar as to being present for work. Appellant was charged with six specifications of being absent from his place of work without proper authority during the following periods of time:
In
addition,
Appellant intentionally missed the overseas movements of his battalion
on the
USS Peleliu on April 19 and
Rather
than the
bare-bones DD Form 214, Appellant was in possession of the record of
trial,
which would have provided the background for these offenses
and his military record.
There is no indication that Appellant sought the assistance of
defense
counsel for an affidavit explaining his status, sought assistance from
the
convening authority, or gave the potential employer a copy of his
record of
trial, which contained his service records from which the DD Form 214
is
completed. It does not take much common
sense to explain why Appellant did not implement any of these steps to
disclose
fully and accurately his military record to U.S. Xpress.
Does anyone reasonably believe that the
hiring manager for U.S. Xpress would look favorably upon an
employment/military
record such as Appellant’s?
Common
sense
compels me to conclude that an individual absent from work as much as
Appellant
would not be a truck driver with this firm.
That same common sense should tell this Court that an employer
seeking a
dependable and financially responsible employee would not look
favorably upon
Appellant’s military record, with or without a DD Form 214. If
the employer had full knowledge of Appellant’s military record -- the
disclosure of which was under Appellant’s control -- and was still
willing to
aver that Appellant would have been hired but for the lack of a DD Form
214,
then I would agree that Appellant had met his burden of demonstrating
actual
prejudice. However, that is clearly not
the case here. Any “prejudice”
was manufactured by Appellant’s own
inaction in failing to give his prospective employer all the
information
Appellant possessed. Appellant has failed to meet his burden to
demonstrate
that the hiring authority at U.S. Xpress, with full knowledge of
Appellant’s
military record, would have hired him but for the lack of a DD Form 214. Thus, I agree with the court below that
Appellant’s claim of prejudice is too speculative and that he has “not
demonstrated the necessary prejudice to entitle him to relief for the
unreasonable and unexplained post-trial delay . . . in the processing
of his
record of trial.” United
States v. Jones, No. NMCM 200100066,
2003 CCA
LEXIS 155, at *2, 2003 WL 21785470, at 1 (N-M.
“This
Court has long recognized” the right to a speedy post-trial review of
the
findings and sentence at a court-martial.
Diaz v. Judge Advocate General of the Navy,
59
M.J. 34, 37 (C.A.A.F. 2003). We
also recognize the “constitutional right to a timely review guaranteed
. . .
under the Due Process Clause.”
A servicemember normally does not receive a DD Form 214 until he or she has exhausted his or her appellate remedies. Thus, most of the appellants before this Court do not yet have a DD Form 214, and would have no reason to expect to have one before their appeals are complete. If we permit relief on the ground that this appellant did not have a DD Form 214, the same rationale will apply to hundreds of cases on appellate review where there has been an imposition of a punitive separation. At the very least, given the critical nature of the information known to Appellant and contained in the record of trial, one would expect that a DuBay hearing would be a prerequisite to relief, at which Appellant would be required to demonstrate that, in light of all pertinent information, he would have been hired but for the absence of a DD Form 214.
Thus, I respectfully dissent. Appellant has not met his burden to show actual prejudice and has failed to take reasonable action to resolve his own problems. Further, a finding of prejudice would open the door to similarly weak and speculative claims from many appellants before this Court.
1 See Dep’t of Defense Instruction
1336.1, Certificate of Release or Discharge from Active Duty, DD Form
214/5
Series (Jan. 6, 1989, incorporating through Change 3, Feb. 28, 2003).
2 See, e.g.,
2 Steven Alan
Childress & Martha S. Davis, Federal Standards of Review
ch. 7 (3d
ed. 1999) (discussing criminal appeals principles).
3 See
Rules for Courts-Martial
1103(b)(2).