United States v. Arriaga ( 2011 )

UNITED STATES, Appellee
v.
Alejandro V. ARRIAGA, Senior Airman
U.S. Air Force, Appellant
No. 10-0572
Crim. App. No. 37439
United States Court of Appeals for the Armed Forces
Argued February 7, 2011
Decided April 29, 2011
ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and BAKER, J., joined. STUCKY, J., filed a
separate opinion, concurring in part and dissenting in part and
in the result, in which RYAN, J., joined.
Counsel
For Appellant: Captain Andrew J. Unsicker (argued); Colonel
Eric N. Eklund and Lieutenant Colonel Gail E. Crawford (on
brief); and Major Anthony D. Ortiz.
For Appellee: Gerald R. Bruce, Esq. (argued); Colonel Don M.
Christensen (on brief).
Military Judge: W. Thomas Cumbie
This opinion is subject to revision before final publication.
United States v. Arriaga, No. 10-0572/AF
Judge ERDMANN delivered the opinion of the court.
Senior Airman Alejandro V. Arriaga was convicted at a
general court-martial with members of housebreaking, as a lesser
included offense of burglary, and one specification of indecent
assault.1 He was sentenced to a dishonorable discharge, four
years of confinement, forfeiture of all pay and allowances, and
reduction to E-1. The convening authority approved the sentence
and the United States Air Force Court of Criminal Appeals
affirmed the findings but found that the sentence was
inappropriately severe and approved only a bad-conduct
discharge, confinement for two years, forfeiture of all pay and
allowances, and reduction to E-1. United States v. Arriaga, No.
ACM 37439, 2010 CCA LEXIS 171, at *9, 2010 WL 2265581, at *25-
*26, (May 7, 2010).
Before this court Arriaga presents two discrete arguments:
his conviction for housebreaking must be set aside as
housebreaking is not a lesser included offense of burglary under
1
Arriaga was charged with one specification of aggravated sexual
assault, one specification of burglary, three specifications of
indecent assault, one specification of assault consummated by a
battery, and one specification of attempted rape. The attempted
rape specification and one specification of indecent assault
were dismissed prior to trial. Arriaga was found not guilty of
all the remaining specifications, but was found guilty of
housebreaking as a lesser included offense of burglary and one
specification of indecent assault.
2
United States v. Arriaga, No. 10-0572/AF
United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010); and, that
he be granted additional confinement credit as relief for being
deprived of his right to timely appellate review.2 We hold that
housebreaking is a lesser included offense of burglary. We
further hold that Arriaga was denied his due process right to
speedy appellate review and therefore reverse the decision of
the United States Air Force Court of Criminal Appeals and remand
the case for further action consistent with this opinion.
2
We granted review of the following issues:
I. Whether, in light of this court’s recent decision
in United States v. Jones, 68 M.J. 465, 468
(C.A.A.F. 2010), the Appellant’s conviction for
housebreaking must be set aside because the
military judge issued erroneous and misleading
instructions supporting housebreaking as an
available lesser-included offense to the original
burglary charge.
II. Whether Appellant was deprived of his right to
speedy post-trial review when over 243 days
elapsed between the date of sentencing and the
date the convening authority took action and
whether the Air Force Court of Criminal Appeals
erroneously held that any delay was harmless
beyond a reasonable doubt despite it approving
only two years of Appellant’s four-year sentence
to confinement.
United States v. Arriaga, 69 M.J. 432, 432-33 (C.A.A.F.
2010) (order granting review).
3
United States v. Arriaga, No. 10-0572/AF
DISCUSSION
A. Lesser included offense
Arriaga lived in a duplex and a married couple, JC and DC,
lived in the adjoining unit. Arriaga was friendly with the
couple and they would occasionally attend his parties. On the
evening in question JC, along with DC and her friend Holly, were
watching football at their home. Arriaga stopped by and invited
the group to go to a bar with him, but they declined and he
left. Later, another friend, Will, arrived and the group began
to drink alcoholic beverages. DC drank to the point where she
said she was “buzzing, maybe on the verge of being drunk.”3
Later in the evening the group began to watch a DVD in the
living room. One by one everyone except Will fell asleep in the
living room. At some point Will went outside to call a friend
on his cell phone and have a cigarette. Will’s friend did not
answer his call so Will went over to talk with Arriaga, who was
outside his duplex unit visiting with friends. Arriaga asked
him where the others were and Will told him they were all
asleep. Will’s friend then returned his call and Will left
Arriaga, returned to DC and JC’s front yard, and talked with his
friend on his cell phone.
3
DC also testified that she took prescription medication for
bipolar disorder, which amplified the alcohol’s effects.
4
United States v. Arriaga, No. 10-0572/AF
DC and JC’s apartment had two entrances, a back door with a
deadbolt, which was generally locked, and the front door. Will
testified that when he went outside for a smoke and to call his
friend the front door was unlocked. After talking to his friend
in the front yard for about fifteen minutes, Will saw a shadow
moving inside the house and started to go back inside. When he
found the front door locked, he knocked and was surprised when
Arriaga opened the door and rushed out of the house. Will found
DC on the loveseat where she had fallen asleep, beginning to
cry. DC testified that she awoke to find Arriaga inside the
house with his hand inside her pants and underneath her
underwear, rubbing her vagina and ultimately penetrating her
with his fingers. DC reported the incident to Security Forces
the morning following the incident. DC testified that she and
her husband did not have an “open-door policy” with Arriaga and
she had not invited nor allowed him in the house that night.
The charges of aggravated sexual assault and burglary arose
from this incident. At trial, without objection, the military
judge instructed court members on housebreaking as a lesser
included offense of burglary.4 As noted, Arriaga was found not
guilty of aggravated sexual assault as well as burglary, but
guilty of the lesser included offense of housebreaking.
4
The military judge also instructed court members on unlawful
entry as a lesser included offense to burglary.
5
United States v. Arriaga, No. 10-0572/AF
Relying on Jones, Arriaga argues that housebreaking is not
a lesser included offense of burglary under the elements test.
Arriaga argues that the elements of the two offenses are not the
same because the intent required for housebreaking is not as
limited as that required for burglary. Arriaga goes on
to argue that even if housebreaking is a lesser included offense
of burglary, the evidence in this case did not fairly raise the
offense of housebreaking. The Government responds that the
offense of housebreaking was reasonably raised by the evidence
and that under United States v. Alston, 69 M.J. 214 (C.A.A.F.
2010), comparison of the statutory elements as charged in the
specification is allowed and that under the language of the
specification charged here, housebreaking is a lesser included
offense of burglary.
“Whether an offense is a lesser included offense is a
question of law we review de novo.” United States v. Miller, 67
M.J. 385, 387 (C.A.A.F. 2009) (citations omitted). As there was
no objection to the instruction at trial, we review for plain
error. United States v. Maynard, 66 M.J. 242, 244 (C.A.A.F.
2008). Plain error occurs when (1) there is error, (2) the
error is plain or obvious, and (3) the error results in material
prejudice. Id.Article 79, UCMJ, states that “[a]n accused may be found
guilty of an offense necessarily included in the offense charged
6
United States v. Arriaga, No. 10-0572/AF
or of an attempt to commit either the offense charged or an
offense necessarily included therein.” Article 79, UCMJ, 10
U.S.C. § 879 (2006); see also Jones, 68 M.J. at 468. This court
applies the elements test to determine whether one offense is a
lesser included offense of another. Id. “Under the elements
test, one compares the elements of each offense. If all of the
elements of [housebreaking] are also elements of [burglary],
then [housebreaking] is [a lesser included offense] of
[burglary].” Id. at 470. The two offenses need not have
“identical statutory language.” Alston, 69 M.J. at 216.
“Instead, the meaning of the offenses is ascertained by applying
the ‘normal principles of statutory construction.’” Id.
(citation omitted).
The elements of burglary are:
(1) That the accused unlawfully broke and
entered the dwelling house of another;
(2) That both the breaking and entering
were done in the nighttime; and
(3) That the breaking and entering were
done with the intent to commit an
offense punishable under Article 118
through 128, except Article 123a.
Manual for Courts-Martial, United States pt. IV, para. 55.b.
(2008 ed.) (MCM); see also United States v. Thompson, 32 M.J.
65, 66 (C.M.A. 1991). The elements of housebreaking are:
(1) That the accused unlawfully entered a
certain building or structure of a
certain other person; and
7
United States v. Arriaga, No. 10-0572/AF
(2) That the unlawful entry was made with
the intent to commit a criminal offense
therein.
MCM pt. IV, para 56.b.; see also United States v. Davis, 56 M.J.
299, 300 (C.A.A.F. 2002).
The burglary specification in the charge sheet alleged that
Arriaga:
did, at or near Sumter, South Carolina, between on or
about 6 October 2007 and on or about 7 October 2007,
in the nighttime, unlawfully break and enter the
dwelling house of [DC], with the intent to commit an
aggravated sexual assault therein.
Regardless of whether one looks strictly to the statutory
elements or to the elements as charged, housebreaking is a
lesser included offense of burglary. Comparing the statutory
elements, it is impossible to prove a burglary without also
proving a housebreaking. Furthermore, the offense as charged in
this case clearly alleges the elements of both offenses.
Nonetheless, Arriaga argues that housebreaking is not a
lesser included offense as the second element of housebreaking
is broader than the corresponding element in burglary. He notes
that under burglary the intent required is limited to committing
one of the offenses listed under Articles 118 through 128 in the
UCMJ, excluding Article 123a, while the intent required in
housebreaking is not limited to any specific offenses and
requires only that there be intent to commit any criminal
offense. Arriaga essentially argues that since an element of
8
United States v. Arriaga, No. 10-0572/AF
housebreaking can be proven by establishing the intent to commit
an offense other than those listed in the third element of
burglary, it cannot be a lesser included offense.
The fact that there may be an “alternative means of
satisfying an element in a lesser offense does not preclude it
from being a lesser-included offense.” United States v.
McCullough, 348 F.3d 620, 626 (7th Cir. 2004); see also United
States v. Alfisi, 308 F.3d 144, 152 n.6 (2d Cir. 2002); Rutledge
v. United States, 517 U.S. 292, 300 (1996). Here the “intent”
element of burglary was charged as the intent to commit an
offense under Article 120, UCMJ. That charging language also
satisfies the “intent” element of housebreaking (intent to
commit a criminal offense). While in another case it may be
possible to prove a housebreaking offense by proving the intent
to commit a criminal offense not designated in the third element
of burglary, that is not the offense charged in this case. The
offense as charged included all of the elements of housebreaking
and all of those elements are also elements of burglary.
Housebreaking is therefore a lesser included offense of
burglary.
Having determined that housebreaking is a lesser included
offense of burglary, we turn to Arriaga’s argument that the
evidence did not raise the offense of housebreaking and the
military judge erred in instructing on that offense. “A
9
United States v. Arriaga, No. 10-0572/AF
military judge has a sua sponte duty to instruct the members on
lesser included offenses reasonably raised by the evidence.”
United States v. Upham, 66 M.J. 83, 87 (C.A.A.F. 2008). Having
reviewed the entire record, we conclude that the evidence
clearly raised the offense of housebreaking and it was not error
for the military judge to provide an instruction to the members
on that offense.
B. Post-trial delay
Arriaga next argues that he was prejudiced by the delay
between the completion of his trial and the convening
authority’s action. The Government responds that the delay was
neither unreasonable nor prejudicial. The Government goes on to
argue that even if there was error, it was harmless beyond a
reasonable doubt and in any event, no meaningful relief is
available.
Whether an appellant has been deprived of his due process
right to a speedy appellate review is a question of law we
review de novo. United States v. Moreno, 63 M.J. 129, 135
(C.A.A.F. 2006). To determine this we balance the four
Barker/Moreno factors:5 “(1) the length of the delay; (2) the
reasons for the delay; (3) the appellant’s assertion of the
5
The court adopted the factors set forth Barker v. Wingo, 407
U.S. 514, 530 (1972), noting that it is not limited to the Sixth
Amendment context, but is also utilized “for reviewing post-
trial delay due process claims.” Moreno, 63 M.J. at 135.
10
United States v. Arriaga, No. 10-0572/AF
right to timely review and appeal; and (4) prejudice.” Id.
(citations omitted). No single factor is required, but a
facially unreasonable length of delay triggers the full
analysis. Id. at 136.
The post-trial delay arguments raised in this case compel a
brief review of this court’s recent appellate delay decisions
before we turn to an analysis of the delay in Arriaga’s case.
While the court has addressed appellate delay issues since 1974,6
the most recent series of cases commenced in 2003. In Diaz v.
Judge Advocate General of the Navy, 59 M.J. 34, 37-38 (C.A.A.F.
2003), the court held that an accused has a constitutional due
process right to a timely “full and fair review of his findings
and sentence.” With the Diaz decision, the court began to
address a resurgence of appellate delay cases.7
In Moreno we held that “our confidence that [the existing]
procedural protections would suffice to ensure the speedy post-
6
Appellate delay cases decided by the court from 1974 through
2002 included: Dunlap v. Convening Authority, 23 C.M.A. 135, 48
C.M.R. 751 (1974); United States v. Banks, 7 M.J. 92 (C.M.A.
1979); United States v. Clevidence, 14 M.J. 17 (C.M.A. 1982);
United States v. Dunbar, 31 M.J. 70 (C.M.A. 1990); United States
v. Hock, 31 M.J. 334 (C.M.A. 1990); United States v. Hudson, 46
M.J. 226 (C.A.A.F. 1997); United States v. Williams, 55 M.J. 302(C.A.A.F. 2001); United States v. Tardif, 57 M.J. 219 (C.A.A.F.
2002).
7
Toohey v. United States, 60 M.J. 100, 104 (C.A.A.F. 2004);
United States v. Rodriguez, 60 M.J. 239, 256 (C.A.A.F. 2004);
United States v. Jones, 61 M.J. 80, 84-86 (C.A.A.F. 2005);
Moreno, 63 M.J. 129 (C.A.A.F. 2006).
11
United States v. Arriaga, No. 10-0572/AF
trial and appellate rights of servicemembers has been eroded.”
63 M.J. at 142. In that case the court prospectively adopted “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.” Id. The Government, of course, has the opportunity to
rebut the presumption in the second Barker/Moreno factor,
“reasons for the delay.” See id. at 142.
Subsequent cases have addressed issues which were not
raised in Moreno. Even in the absence of specific prejudice, a
constitutional due process violation still occurs if, “in
balancing the other three factors, the delay is so egregious
that tolerating it would adversely affect the public’s
perception of the fairness and integrity of the military justice
system.” United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F.
2006). Relief in such cases is provided unless this court is
convinced that the post-trial delay was harmless beyond a
reasonable doubt. United States v. Allison, 63 M.J. 365, 370
(C.A.A.F. 2006). Furthermore, the court may assume a due
process violation and proceed straight to the harmless beyond a
reasonable doubt analysis. Id. Finally, even in instances
where post-trial delay was not harmless beyond a reasonable
doubt, the court cannot provide relief where “there is no
reasonable, meaningful relief available.” United States v.
12
United States v. Arriaga, No. 10-0572/AF
Rodriguez-Rivera, 63 M.J. 372, 386 (C.A.A.F. 2006).8 We now turn
to the Barker/Moreno factors in Arriaga’s case.
1. Length of the delay
Before triggering a full analysis under the Barker/Moreno
factors, the post-trial delay must first be facially
unreasonable. Moreno, 63 M.J. at 136. As noted, a delay of 120
days or more between the completion of trial and the convening
authority’s action is presumed to be facially unreasonable. Id.
at 142.
Arriaga’s court-martial was completed on August 28, 2008.
It took the court reporter eighty-two days to complete the
record of trial. It then took trial counsel eighty days to
authenticate the record of trial (162 days after trial). It
took the military judge twenty-five days to authenticate the
record of trial (187 days after trial). The convening authority
took his action twenty-six days later, 243 days after trial.
The 243-day period from the conclusion of trial to the convening
authority’s action, while not as extreme as some periods of
delay this court has dealt with, is not de minimis. The delay
is unreasonable on its face and therefore triggers the full
Barker/Moreno analysis.
8
Between April 2005 and September 2006 this court received and
decided a total of fifty-nine appellate due process delay cases
as Moreno trailer cases. While the court still sees appellate
due process cases, the number and severity has decreased
significantly in recent years.
13
United States v. Arriaga, No. 10-0572/AF
Before proceeding to the full analysis, however, it is
necessary to clarify exactly what triggers the start of the
appellate delay clock. In its argument and brief the Government
assumed, apparently based on the 120-day presumption in Moreno,
that the appellate delay clock did not start on the date the
trial concluded, but rather on the 121st day after trial. As a
result of this erroneous assumption, the Government based its
entire argument on a 123-day delay rather then the actual 243-
day delay. As the thrust of the Moreno decision was to
encourage compliance with appellants’ due process rights to
speedy appellate processing, it is disconcerting that the
Government now reads the Moreno 120-day period as a “free”
period in which no time delay is computed. To ensure that there
are no further misunderstandings, for this period of appellate
delay, the clock starts to run the day that the trial is
concluded and stops when the convening authority completes his
action.9
9
This case concerned the delay between trial and the convening
authority’s action. Moreno also addressed delay in the period
between the convening authority’s action and filing at the
appropriate court of criminal appeals as well as the period
between filing at the court of criminal appeals and issuance of
the decision. 63 M.J. at 142. Needless to say the time periods
that establish a presumption of unreasonableness in those
circumstances do not establish a “free” period in which no delay
is computed.
14
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2. Reasons for the delay
As noted, the 243-day delay between the completion of trial
and the convening authority’s action is presumptively
unreasonable. However, the Government may overcome this
presumption by providing legitimate reasons for the delay. The
Government argues that it “exercised due diligence” in preparing
the record of trial while dealing with “two deployed senior
captains, a pregnant trial counsel who reviewed the transcript
while on maternity leave, inexperienced remaining captains in
the office, a very heavy case load, and this fully-litigated 8-
volume record of trial.”
We have held that personnel and administrative issues, such
as those raised by the Government in this case, are not
legitimate reasons justifying otherwise unreasonable post-trial
delay. See, e.g., Moreno, 63 M.J. at 137 (“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.” (quoting Diaz,
59 M.J. at 35)); Toohey, 63 M.J. at 360 (noting that timely
preparation of the record is a government responsibility).
Since the record provides no legitimate reason for the delay in
the convening authority’s action, this factor weighs against the
Government.
15
United States v. Arriaga, No. 10-0572/AF
3. Assertion of the right to a timely review and appeal
This factor requires the court to examine whether Arriaga
objected to the delay in any way or otherwise asserted his right
to a timely review. Arriaga did not raise the appellate delay
issue until he was at the Court of Criminal Appeals. However,
“[t]he obligation to ensure a timely review and action by the
convening authority rests upon the Government and [Arriaga] is
not required to complain in order to receive timely convening
authority action.” Moreno, 63 M.J. at 138 (citing United States
v. Bodkins, 60 M.J. 322, 323-24 (C.A.A.F. 2004)). While this
factor does weigh against Arriaga, it does so only slightly.
See id. (stating that the government bears “the primary
responsibility for speedy processing”).
4. Prejudice
“‘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.’” Id. (quoting Rheuark v. Shaw, 628 F.2d 297, 303 n.8
(5th Cir. 1980)). Those interests are: “‘(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.’” Id. at
16
United States v. Arriaga, No. 10-0572/AF
138-39 (quoting Rheuark, 628 F.2d at 303 n.8). Arriaga argues
that he suffered prejudice because of oppressive incarceration
as well as his anxiety and concern. We address his claims in
inverse order.
a. Anxiety and concern
An appellant must demonstrate a “particularized anxiety or
concern that is distinguishable from the normal anxiety
experienced by prisoners awaiting an appellate decision.”
Moreno, 63 M.J. at 140. Because of his impending sex offender
registration, Arriaga argues that the delay resulted in
spontaneous anxiety attacks and that “this impending stigma”
unreasonably burdened his aspirations to be a firefighter, as
well as his ability to fully interact with his son. The
Government responds that Arriaga has failed to connect any
anxiety with the delay in this case.
Since the underlying conviction in this case remains in
force, Arriaga must still register as a sex offender regardless
of the delay. As a result Arriaga cannot show that the delay
caused prejudice in regard to his impending sex offender
registration. See Toohey, 63 M.J. at 361. Arriaga has
therefore failed to demonstrate that he has suffered any
particularized anxiety or concern.
17
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b. Oppressive incarceration pending appeal
To prevail on a claim of unreasonable post-trial delay
alleging oppressive incarceration, Arriaga must first succeed on
a substantive claim in this court or the court below. Moreno,
63 M.J. at 139 (stating that an appellant must succeed in a
substantive claim); Rodriguez, 60 M.J. at 256 (noting that a
successful claim can occur in this court or the court below).
Sentence appropriateness relief provides an appellant with
substantive relief for the purposes of post-trial delay. See
Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2006).
On August 28, 2008, the court-martial sentenced Arriaga to
four years of confinement and credited him for 156 days of
pretrial confinement. Arriaga asserts that his initial maximum
release date would have been March 25, 2012.10 In its decision
dated May 7, 2010, the Court of Criminal Appeals found that
Arriaga’s sentence for a conviction of housebreaking was
inappropriately severe and approved only a two-year period of
confinement. 2010 CCA LEXIS 171, at *25-*26, 2010 WL 2265581,
at *9. As a result of the revised sentence, Arriaga asserts
that his maximum release date became March 25, 2010. Arriaga
was released on May 14, 2010, one week after the decision of the
Court of Criminal Appeals. As a result of the reduction in
10
The Government does not dispute the calculations of these
dates.
18
United States v. Arriaga, No. 10-0572/AF
sentence, Arriaga spent fifty-one days in confinement beyond his
adjusted maximum release date. Arriaga argues that had the
post-trial processing been completed in a timely manner, the
Court of Criminal Appeals would have issued its decision before
his revised release date and he would not have spent an
additional fifty-one days in prison.
If this case had been processed within the timelines set
forth in Moreno, assuming it would take the Court of Criminal
Appeals approximately the same period of time to issue their
decision as they initially took in this case, the decision would
have been issued prior to Arriaga’s revised maximum release
date.11 As a result, Arriaga has suffered specific prejudice in
the form of oppressive incarceration as a result of the post-
trial delay.
5. Balancing the Barker/Moreno factors
The unreasonable length of the delay, the lack of
legitimate reasons advanced by the Government for the delay, and
the specific prejudice suffered by Arriaga as a result of
oppressive incarceration all weigh against the Government.
Arriaga’s failure to assert his right to timely post-trial
review weighs against him, but only slightly. Therefore, our
balancing of the four Barker/Moreno factors leads us to conclude
11
The Court of Criminal Appeals issued its decision well within
the eighteen-month period established in Moreno. See Moreno, 63
M.J. at 142.
19
United States v. Arriaga, No. 10-0572/AF
that the Government deprived Arriaga of his due process right to
speedy review and appeal.
Arriaga has asked for an award of additional confinement
credit as a remedy for this violation. In Moreno, this court
provided a nonexclusive list of relief available to reviewing
courts depending on the circumstances of individual cases:
(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.
Id. at 143. Rather than direct specific relief, we instead
remand this case to the Court of Criminal Appeals for it to
apply its broad powers to fashion whatever relief, if any, it
deems appropriate. See Toohey, 60 M.J. at 103-04 (recognizing
the unique and broad powers of the Courts of Criminal Appeals to
fashion appropriate relief).
DECISION
The decision of the United States Air Force Court of
Criminal Appeals is reversed. The record is returned to the Air
Force Judge Advocate General for remand to the Court of Criminal
Appeals for action consistent with this opinion.
20
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STUCKY, Judge, with whom RYAN, Judge, joins (concurring in
part and dissenting in part and in the result):
I concur in the majority’s opinion holding that burglary
under Article 129, Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 929 (2006), always constitutes the offense of
housebreaking under Article 130, UCMJ, 10 U.S.C. § 930 (2006),
and therefore that housebreaking is necessarily included in --
and is a lesser included offense of -- the offense of burglary
under the elements test of United States v. Jones, 68 M.J. 465(C.A.A.F. 2010). See United States v. Arriaga, ___ M.J. ___ (3-
10) (C.A.A.F. 2011). However, I disagree with the majority’s
analysis of Issue II -- whether Appellant was deprived of his
right to speedy post-trial review -- and would hold that
Appellant’s due process rights were not violated and would
therefore affirm the decision of the United States Air Force
Court of Criminal Appeals (CCA).
I. Background
Appellant was sentenced on August 28, 2008. During
sentencing proceedings, Appellant was awarded 156 days of
pretrial confinement credit. The first court reporter began
transcribing the record of trial on September 26, 2008, and
continued to do so until November 17, 2008. The second court
reporter began transcribing the rest of the record of trial on
November 19, 2008, and finished on December 15, 2008. The
United States v. Arriaga, No. 10-0572/AF
record was then reviewed for accuracy and signed by trial
counsel on February 5, 2009, and by defense counsel. On January
30 and February 5, 2009, the record was sent to the military
judge; on March 2, 2009, the military judge authenticated the
record. The staff judge advocate (SJA) completed his
recommendation on March 9, 2009, and presented it to the
convening authority. On March 25, 2009, Appellant submitted a
clemency petition pursuant to Rules for Court-Martial (R.C.M.)
1105 and 1106, with multiple exhibits, labeled A through BW. On
April 23, 2009, the SJA completed an addendum in which he
provided the convening authority with advice regarding
Appellant’s clemency submission. On April 27, 2009, 243 days
after Appellant was sentenced, the convening authority took
action in Appellant’s case.
On May 14, 2009, Appellant’s case was docketed with the Air
Force court administrative staff and a date was set for hearing
before the CCA. While pending before the CCA, defense counsel
twice, on October 15, 2009,1 and on December 3, 2009, requested
thirty-day enlargements of time to submit a brief, citing as
reasons for the request that the record of trial was 820 pages
long, and that there were 11 prosecution exhibits, 60 defense
1
According to defense counsel’s assertion in the document
regarding the timeline of the case, October 15 should have been
the filing date. However, this document is also stamped with
2
United States v. Arriaga, No. 10-0572/AF
exhibits, and 57 appellate exhibits. Both of these enlargement
motions were granted.
On May 7, 2010, the CCA reduced Appellant’s sentence to two
years of confinement from four and otherwise affirmed. On May
10, the Government filed a motion seeking reconsideration, which
the CCA denied on May 12. On May 14, 2010, Appellant was
released from confinement.
II. Law
The majority is of course correct in holding that a
servicemember has a due process right under the Fifth Amendment
“to a timely ‘full and fair review of his findings and
sentence.’” Arriaga, __ M.J. at __ (11) (citation omitted);
accord United States v. Moreno, 63 M.J. 129, 132 (C.A.A.F.
2006); United States v. Bush, 68 M.J. 96, 105 (C.A.A.F. 2009)
(Ryan and Stucky, JJ., concurring in the judgment). In order to
determine whether this right has been violated, this Court
applies the Supreme Court’s Sixth Amendment, Speedy Trial Clause
jurisprudence, including, when appropriate, the factor analysis
of Barker v. Wingo, 407 U.S. 514 (1972). See Moreno, 63 M.J. at
135; Bush, 68 M.J. at 105 (Ryan and Stucky, JJ., concurring in
the judgment).
the date “November 3, 2009,” though the significance of this
stamp is unexplained.
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Here my analysis diverges from that of the majority.
Before a reviewing court will apply the Barker factors, “an
accused must allege that the [relevant] interval . . . has
crossed the threshold dividing ordinary from ‘presumptively
prejudicial’ delay.” Doggett v. United States, 505 U.S. 647,
651-52 (1992) (noting that, “by definition,” an accused cannot
complain that he has been denied speedy processing if his case
has “in fact, [been] prosecuted . . . with customary
promptness”). Whether a delay is “presumptively prejudicial” is
necessarily dependent upon the peculiar circumstances of the
case. See id.; Barker, 407 U.S. at 530-31; United States v.
Thompson, 68 M.J. 308, 315 (C.A.A.F. 2010) (Stucky, J.,
concurring in the result). A showing of presumptively
prejudicial delay does not end the inquiry. It merely
“trigger[s] a speedy trial analysis” under the Barker factors.
Doggett, 505 U.S. at 651. However, “[a] showing of prejudice is
required to establish a violation of the Sixth Amendment Speedy
Trial Clause.” Reed v. Farley, 512 U.S. 339, 353 (1994); Bush,
68 M.J. at 106-07 (Ryan and Stucky, JJ., concurring in the
judgment); accord Taylor v. Roper, 561 F.3d 859, 863 (8th Cir.
2009) (quoting Reed, 512 U.S. at 353). But see United States v.
Dowdell, 595 F.3d 50, 60 (1st Cir. 2010) (stating that prejudice
is not required, without addressing the application of Reed).
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United States v. Arriaga, No. 10-0572/AF
In applying Sixth Amendment Speedy Trial Clause
jurisprudence to Fifth Amendment due process claims regarding
review of court-martial convictions, the majority has abandoned
three fundamental principles underlying that jurisprudence: (1)
that a showing of presumptive prejudice sufficient to trigger
Barker analysis be made on the particular circumstances of the
case; (2) that the judiciary lacks the “constitutional basis” to
engage in “legislative or rulemaking activity” in the context of
a right to a speedy trial, see Barker, 407 U.S. at 523; and (3)
that the accused must demonstrate prejudice resulting from the
delay.
In Moreno, the Court rejected and denounced as “draconian”
the Supreme Court’s method of requiring a showing of presumptive
prejudice -- that the delay in an accused’s case was longer than
it should have been -- considering the circumstances, in order
to trigger full Barker analysis. Moreno, 63 M.J. at 142
(explaining that “less draconian” measures would, at least for
the time being, be sufficient to “deter . . . delays”). In its
place, the Moreno court established a “presumption of
unreasonable delay” that, like the “draconian” presumptively
prejudicial delay, serves both “to trigger the four-part Barker
analysis,” and also to “satisfy[ ] the first Barker factor.”
Id. Compare id., with Doggett, 505 U.S. at 651-52; Barker, 407
U.S. at 530-31.
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United States v. Arriaga, No. 10-0572/AF
The Moreno court’s presumption of unreasonable delay
ignores the Supreme Court’s requirement that a civilian court
must consider allegations of improper delay in the context of
the particular circumstances. In place of that requirement, the
Moreno court established a fixed time period for all cases: the
convening authority must act within 120 days after the date of
the completion of trial. 63 M.J. at 142. The majority’s view
that a presumption of unreasonable delay arises whenever the
convening authority has not acted within 120 days of the
completion of trial is simply arbitrary. There is no reason to
expect that a fixed period of post-trial delay should trigger
heightened review regardless of the length of the trial record
or other factors, such as whether the case involves a simple,
judge alone plea of guilty to a single specification crime such
as wrongful use of cocaine, or, for example, a contested case
heard by a panel involving premeditated murder, multiple
conspiracies and co-accuseds, and the possibility of the death
penalty. See Barker, 407 U.S. at 530; Thompson, 68 M.J. at 315
(Stucky, J., concurring in the result).
Second, just as the Barker court refused to engage in
“legislative or rulemaking activity” in order to remedy the
recurring problem of delay in the civilian context, so too the
Moreno court should have rejected such an approach in the
military context. Compare Barker, 407 U.S. at 523, with Moreno,
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United States v. Arriaga, No. 10-0572/AF
63 M.J. at 152 (Crawford, J., dissenting in part and concurring
in part and in the result) (noting that the United States Court
of Appeals for the Armed Forces “is not a rulemaking body,” and
that “[t]he Court should leave the rulemaking function where it
belongs -- to the executive and legislative branches”).
Finally, the majority has also abandoned a third
fundamental requirement of the Supreme Court’s speedy trial
jurisprudence: that, the accused must, in most cases, show
prejudice. Bush, 68 M.J. at 105-06 (Ryan and Stucky, JJ.,
concurring in the judgment) (citing Reed, 512 U.S. at 353). In
United States v. Toohey, the majority determined that, despite a
complete lack of prejudice, an accused’s due process rights can
nonetheless be violated on the basis of public perception. 63
M.J. 353, 362 (C.A.A.F. 2006). I continue to believe that “we
should cease the practice of basing due process violations on
public perception.” Bush, 68 M.J. at 105 (Ryan and Stucky, JJ.,
concurring in the judgment). This is not to say that excessive
delay may not be prejudicial, depending, of course, on the facts
and circumstances of the case. Normally, though, prejudice will
be demonstrated pursuant to Barker. Cf. Reed, 512 U.S. at 353
(citing Barker, 407 U.S. at 530).
III. Application
Considering the particular facts of this case, including
that Appellant was charged with burglary as well as aggravated
7
United States v. Arriaga, No. 10-0572/AF
sexual assault, assault consummated by a battery, and multiple
allegations of indecent assault against multiple victims, that
the trial involved testimony provided by seven witnesses, that
the trial record was 820 pages long, that trial counsel was on
maternity leave for part of the post-trial review, that
Appellant submitted a clemency petition for consideration, and
that the CCA’s decision was delayed by two defense motions based
on the complexity of the case, I would find that the 243-day
delay between the completion of trial and the convening
authority’s action does not give rise to a presumption of
prejudice triggering full Barker factor analysis. Having failed
to make this initial showing, Appellant’s rights were not
violated.
However, even if Appellant had made a showing of
presumptive prejudice sufficient to trigger full Barker
analysis, Appellant has failed to demonstrate prejudice in fact.
“Our analysis of prejudice” in the context of post-trial delay
considers three interests:
“(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.”
Moreno, 63 M.J. at 138-39 (quoting Rheuark v. Shaw, 628 F.2d
297, 303 n.8 (5th Cir. 1980)). Appellant’s claim of prejudice
8
United States v. Arriaga, No. 10-0572/AF
is based on the first two interests. He argues that he was
oppressively incarcerated and alleges that he experienced
anxiety.
Appellant’s claim that he was oppressively incarcerated is
speculative at best. When Appellant was sentenced on August 28,
2008, he was sentenced to four years of confinement. When
arguing his case before the CCA, Appellant raised the same
speedy trial claim this Court now addresses regarding the delay
in the convening authority’s action. On May 7, 2010, the CCA
reduced Appellant’s sentence of confinement from four years to
two. According to Appellant’s calculations, the CCA’s judgment
meant that he should have been released on March 25, 2010,
forty-four days prior to the CCA’s judgment.2 On May 14, 2010,
just two days after the CCA denied the Government’s motion for
reconsideration, Appellant was released. Appellant also claims
that he was due 108 days of good conduct time credit on the
basis of Air Force and Department of Defense regulations. As a
result, Appellant claims that the combined effect of the CCA’s
decision and the 243-day delay between completion of trial and
action by the convening authority meant that he had been, in
total, confined for 159 days longer than he should have been.
2
Because Appellant directs this Court’s attention to the CCA’s
judgment as a cause for granting relief, it is of note that
Appellant requested and was granted two enlargements of time of
thirty days each to submit his brief at the CCA.
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United States v. Arriaga, No. 10-0572/AF
Appellant’s claim of prejudice due to oppressive
incarceration must fail. To begin with, Appellant’s claim that
he is due 108 days of good conduct time credit must be rejected.
This Court has neither the jurisdiction to review this
administrative matter, see United States v. Pena, 64 M.J. 259,
264 (C.A.A.F. 2007); United States v. Spaustat, 57 M.J. 256, 263
(C.A.A.F. 2002), nor, if it had jurisdiction, the ability to
find the facts necessary to apply the regulations, see, e.g.,
Article 67(c), UCMJ, 10 U.S.C. § 867(c) (2006).
Appellant’s claim that he should be granted relief as a
result of his anxiety is without merit both because he has not
alleged that his anxiety was “particularized” and
“distinguishable from the normal anxiety experienced by
prisoners awaiting an appellate decision,” Moreno, 63 M.J. at
140, and because the claimed source of Appellant’s anxiety is a
sex offender registration requirement connected to a conviction
not contested before this Court.
Both of these claims are based upon an assumption that, had
the initial delay not occurred during the period between the
court-martial and the convening authority’s action, Appellant’s
case would have been resolved by the CCA earlier, thereby
leading to an earlier release date for Appellant. This
assumption is entirely speculative -- there is no basis in fact
given for the assertion that the CCA would have issued its
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United States v. Arriaga, No. 10-0572/AF
opinion earlier had the convening authority’s action occurred
sooner. The CCA, in granting Appellant such substantial relief,
acted with full knowledge of Appellant’s claim that his due
process rights had been violated. In its opinion, the CCA
explained that it had considered Appellant’s claim and found any
error to be harmless beyond a reasonable doubt.3 Appellant’s
argument that he would have been released earlier had the
convening authority not taken 243 days to act is directly based
on the fact that, slightly over two years into Appellant’s four-
year sentence, the CCA halved Appellant’s period of confinement.
But we do not know whether the CCA would have granted Appellant
such substantial relief had the convening authority’s action
occurred earlier, thus depriving him of the post-trial delay
claim he brought before the CCA.
In the end, however, what the CCA might have done under
different circumstances does not matter in assessing prejudice.
In light of the speculative nature of Appellant’s claim, the
3
Though the CCA referred to “the additional 123-day delay,” the
CCA appears to have considered the entire 243-day period in
conducting its analysis. Though I disagree with the
establishment of a fixed period for presumptively unreasonable
delay set forth in Moreno, 63 M.J. at 142 (setting forth a fixed
period of 120 days between the completion of the trial and
convening authority action), it is in any event improper to do
as the Government requested and subtract that 120-day period
from the total period of delay when analyzing whether
Appellant’s right to speedy post-trial review has been violated.
United States v. Canchola, 64 M.J. 245, 247 n.2 (C.A.A.F. 2007).
11
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very substantial sentence relief he received from the CCA, and
the fact that he was released just two days after the CCA denied
the Government’s motion for reconsideration, even if Appellant
had demonstrated that the delay between sentencing and the
convening authority’s action was presumptively prejudicial on
the basis of the particular facts of his case, the delay did not
violate Appellant’s right to have his case processed in a timely
manner.
I would affirm the decision of the United States Air Force
Court of Criminal Appeals.
12