United States v. Bush , 2009 CAAF LEXIS 932 ( 2009 )

UNITED STATES, Appellee
v.
Marco A. BUSH, Private First Class
U.S. Marine Corps, Appellant
No. 09-0119
Crim. App. No. 200700137
United States Court of Appeals for the Armed Forces
Argued April 28, 2009
Decided August 17, 2009
ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and BAKER, J., joined. RYAN, J., filed a separate
opinion concurring in the judgment, in which STUCKY, J., joined.
Counsel
For Appellant: Lieutenant Commander Thomas P. Belsky, JAGC, USN
(argued); Major Christian J. Broadston, USMC, and Major Anthony
W. Burgos, USMC (on brief).
For Appellee: Lieutenant Commander Paul D. Bunge, JAGC, USN
(argued); Brian K. Keller, Esq. (on brief).
Military Judges: F. A. Delzompo and J. F. Havranek
This opinion is subject to revision before final publication.
United States v. Bush, 09-0119/MC
Judge ERDMANN delivered the opinion of the court.
Before the United States Navy-Marine Corps Court of
Criminal Appeals, Private Marco A. Bush asserted that his due
process right to a speedy post-trial review was violated by a
delay of more than seven years from the court-martial to
docketing at the Court of Criminal Appeals. Bush claimed that
he suffered specific prejudice in that he was denied an
identified job because he did not have his discharge papers (DD
Form 214). In support of his claim, Bush provided his unsworn
declaration without any corroborating evidence.
Citing our opinion in United States v. Allende, 66 M.J. 142(C.A.A.F. 2008), the lower court determined en banc that Bush
failed to adequately substantiate his claim of prejudice.
United States v. Bush (Bush CCA II), 67 M.J. 508, 510-12 (N-M.
Ct. Crim. App. 2008). Nevertheless, concluding that “the delay
in the post-trial review of this case ‘is so egregious that
tolerating it would adversely affect the public’s perception of
the fairness and integrity of the military justice system,’” the
lower court held that Bush’s due process right to speedy post-
trial review had been violated. Id. at 512 (quoting United
States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006)). The Court
of Criminal Appeals went on to conclude that the Government had
met its burden to show that the post-trial error was harmless
beyond a reasonable doubt and denied relief. Id. at 513. In
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United States v. Bush, 09-0119/MC
doing so, the lower court stated that “appellant’s failure to
independently corroborate his assertion of specific employment
prejudice or alternatively to provide facts explaining his
inability to provide such independent corroboration weighs
heavily on our decision.” Id. We granted review to determine
whether Allende conflicts with this court’s long-standing
decision in United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997),
and also to determine whether the Court of Criminal Appeals
wrongfully imposed upon Bush the burden to establish that the
constitutional error was harmful.1
We see no conflict between Allende and Ginn, as applied by
the Court of Criminal Appeals in this case or otherwise. We
further conclude that to the extent that the Court of Criminal
Appeals erred in placing a burden of production on Bush, that
error was harmless beyond a reasonable doubt. We therefore
affirm the decision of the Court of Criminal Appeals.
1
We granted review of two issues:
I. WHETHER THE COURT OF CRIMINAL APPEALS’ INTERPRETATION
AND APPLICATION OF THIS COURT’S DECISION IN UNITED STATES
v. ALLENDE, 66 M.J. 142 (C.A.A.F. 2008) PLACES IT AT ODDS
WITH THIS COURT’S DECISION IN UNITED STATES v. GINN, 47
M.J. 236 (C.A.A.F. 1997).
II. WHETHER THE COURT OF CRIMINAL APPEALS MISINTERPRETED
ALLENDE, CREATING THE PRACTICAL RESULT OF SHIFTING TO AN
APPELLANT THE BURDEN OF PROVING THAT A CONSTITUTIONAL ERROR
WAS HARMFUL.
67 M.J. 268 (C.A.A.F. 2009).
3
United States v. Bush, 09-0119/MC
PROCEDURAL BACKGROUND
Consistent with his pleas, Bush was convicted of numerous
offenses under the Uniform Code of Military Justice (UCMJ).2 He
was sentenced to a dishonorable discharge, confinement for six
years, forfeiture of all pay and allowances, and reduction to
pay grade E-1. His sentence was adjudged by a military judge
sitting alone as a general court-martial on January 5, 2000.
The convening authority took action on November 16, 2000.
The case was docketed with the United States Navy-Marine
Corps Court of Criminal Appeals on February 13, 2007 -- over six
years later. On July 25, 2007, the Court of Criminal Appeals
determined that the convening authority’s action was ambiguous
and ordered that the case be returned to the Judge Advocate
General of the Navy for submission to an appropriate convening
authority for proper post-trial processing in compliance with
Rules for Court-Martial 1105-1107. The case was then to be
returned to the Court of Criminal Appeals for completion of its
review under Article 66, UCMJ, 10 U.S.C. § 866 (2000).
2
Bush entered guilty pleas and was convicted of one
specification of attempting to escape from custody, one
specification of failure to obey a lawful order, one
specification of fleeing apprehension, one specification of
resisting apprehension, two specifications of reckless driving,
two specifications of assault with a dangerous weapon, and one
specification of striking a superior noncommissioned officer, in
violation of Articles 80, 92, 95, 111, and 128, UCMJ, 10 U.S.C.
§§ 880, 892, 895, 911, 928 (2000).
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United States v. Bush, 09-0119/MC
The convening authority took action on November 27, 2007,
approving the sentence as adjudged. Pursuant to a pretrial
agreement, the convening authority suspended confinement in
excess of twenty-four months for a period of six months from the
date of his action.3 He also deferred adjudged and automatic
forfeitures in the amount of $500.00 pay per month until the
date of action. Adjudged forfeitures and automatic forfeitures
in the amount of $500.00 pay per month were waived for six
months for the benefit of Bush’s dependent. The case was
returned to the Court of Criminal Appeals, which considered
Bush’s sole assignment of error -- unreasonable post-trial
processing delay.
The Court of Criminal Appeals issued its first opinion in
this case on March 11, 2008. United States v. Bush (Bush CCA
I), 66 M.J. 541 (N-M. Ct. Crim. App. 2008). Using the four-
factor analysis for resolving post-trial delay claims, the lower
court concluded that Bush’s due process right to speedy post-
trial review was violated. Id. at 542-444; see United States v.
Moreno, 63 M.J. 129, 135-41 (C.A.A.F. 2006).
3
The convening authority’s initial action on November 16, 2000,
also complied with the pretrial agreement. There is no
allegation, nor any indication from the record, that the post-
trial delay resulted in any period of wrongful incarceration.
4
The lower court applied the factors identified in Barker v.
Wingo, 407 U.S. 514 (1972), to assess: (1) the length of the
delay; (2) the reasons for the delay; (3) the Appellant’s
5
United States v. Bush, 09-0119/MC
In reaching this conclusion, the Court of Criminal Appeals
determined: (1) the length of the delay -– “over seven years to
review a 143-page guilty plea” -- was facially unreasonable; (2)
the record was “apparently lost in the mail for over six years,”
so the reason for the delay weighed heavily in Bush’s favor; (3)
Bush’s unrebutted, unsworn declaration asserted that he
repeatedly contacted his command and the Navy-Marine Corps
Appellate Leave Activity inquiring about his case; and (4) Bush
established specific prejudice by showing through a
preponderance of the evidence that he was denied employment
because he did not have his DD Form 214. Bush CCA I, 66 M.J. at
542-44. With respect to specific prejudice, the lower court
reasoned:
[Bush’s] declaration asserts he was denied employment
by the Costco store in Huntsville, Alabama, three to
four years after his trial, specifically because he
lacked his final discharge papers (DD Form 214). . . .
In this instance, the appellant identified a specific
store in a specific town during a specific timeframe.
He specifically asserts the reason he was denied
employment was directly tied to dilatory post-trial
processing of his court-martial. Finally, he asserts
that, by virtue of his prior employment in the same
position with a Costco store in California, he was
fully qualified to perform the job. We find this was
“adequate detail” to permit the Government to inquire
further in order to verify or dispute the appellant’s
assertions. . . . As the Government offers no
evidence to refute the appellant’s claims, we find
assertion of the right to timely review and appeal; and (4)
prejudice. Bush CCA I, 66 M.J. at 542-44 (citing United States
v. Jones, 61 M.J. 80, 83 (C.A.A.F. 2005)).
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United States v. Bush, 09-0119/MC
that the appellant has sustained his burden by a
preponderance of the evidence that he has suffered
prejudice due to post-trial delay.
Id. at 543 (citation and footnote omitted).
The Court of Criminal Appeals held that under the totality
of the circumstances, it could not conclude that the error was
harmless beyond a reasonable doubt. Id. at 544. As relief, the
court affirmed only so much of the sentence as provided for a
bad-conduct discharge. Id.
On March 12, 2008, the day after the Court of Criminal
Appeals decided Bush CCA I, this court issued its opinion in
Allende, 66 M.J. 142. Allende addressed a claimed denial of due
process in a case that involved a seven-year delay between
sentencing and resolution of Article 66, UCMJ, appellate review.
Id. at 145. Allende claimed that he suffered prejudice on the
grounds that a number of potential civilian employers were
unwilling to consider him because he could not provide them with
a DD Form 214. Id. Similar to this case, Allende submitted
nothing more than his own declaration in support of his claim.
Id. In Allende, we assumed a due process violation and
proceeded directly to the question of whether the error was
harmless beyond a reasonable doubt. Id. We recognized the fact
that the appellant did not provide documentation from potential
employers regarding their employment practices and did not
demonstrate a valid reason for failing to do so. Id. We
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United States v. Bush, 09-0119/MC
concluded that in that context, the assumed error was harmless
beyond a reasonable doubt and we noted that the appellant failed
to present substantiated evidence to the contrary. Id.
In light of this court’s opinion in Allende, the Court of
Criminal Appeals, sitting en banc, reconsidered its decision in
Bush CCA I. In a decision issued on August 19, 2008, the lower
court maintained that Bush “provided an adequately detailed
declaration articulating prejudice to his employment
opportunities.” Bush CCA II, 67 M.J. at 512. Citing Allende,
however, the lower court concluded that Bush “has not met his
additional burden to provide corroborating evidence or an
explanation of why such evidence could not be obtained.
Consequently, this fourth factor of prejudice weighs in favor of
the Government.” Id. Quoting our decision in Toohey, 63 M.J.
at 362, the lower court went on to conclude that “even in the
absence of specific prejudice to the appellant, the delay in the
post-trial review of this case ‘is so egregious that tolerating
it would adversely affect the public’s perception of the
fairness and integrity of the military justice system.’” Bush
CCA II, 67 M.J. at 512. The lower court consequently held that
Bush’s due process right to speedy post-trial review was
violated. Id. The lower court went on to conclude that the
Government had met its burden to show that the error was
8
United States v. Bush, 09-0119/MC
harmless beyond a reasonable doubt. Id. at 513. In doing so,
the Court of Criminal Appeals stated:
The appellant’s failure to independently corroborate
his assertion of specific employment prejudice or
alternatively to provide facts explaining his
inability to provide such independent corroboration
weighs heavily in our decision. The appellant does
not assert and our review of the record did not reveal
evidence that the appellant has suffered ongoing
prejudice from oppressive incarceration or undue
anxiety. We conclude, therefore, that the Government
has met its burden to show that the post-trial error
was harmless beyond a reasonable doubt.
Id. (footnote omitted).
DISCUSSION
1. Requiring an appellant to provide independent
evidence to substantiate a claim that he was impaired
in his ability to obtain employment as a result of
post-trial delay does not conflict with Ginn.
Bush contends that because the Court of Criminal Appeals
specifically found that his declaration presented “‘legally
competent evidence’ as well as ‘state[d] a claim of legal error
and provide[d] adequate detail to permit the Government to
validate or dispute his claims[,]’ . . . under Ginn, such
evidence would have permitted the court to grant relief based on
the affidavit.” Bush further contends that by relying on
Allende to find the evidence insufficient and to require
independent corroboration of employment prejudice, the Court of
Criminal Appeals “effectively modified Ginn, at least in the
context of post-trial delay cases.” In response, the Government
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United States v. Bush, 09-0119/MC
argues that the Ginn framework is unworkable as applied to post-
trial claims of employment prejudice. The Government contends
that it does not have a method to obtain witness testimony or
documentary evidence at the appellate level where it has no
subpoena power and that remand to a United States v. DuBay, 17
C.M.A. 147, 37 C.M.R. 411 (1967), hearing is essential to
provide it with access to evidence.
To establish prejudice under the fourth Barker factor on
the grounds that post-trial delay impaired an appellant’s
ability to secure employment, an appellant must do something
more than provide his own affidavit asserting that a specific
employer declined to hire him because he lacked a DD Form 214.
In Bush CCA II, the Court of Criminal Appeals relied on Allende
for the proposition that an appellant must provide corroborating
evidence to support his claim of employment prejudice. 67 M.J.
at 512. While the lower court correctly recognized the
requirement, we note that it has been a part of our case law
long before Allende.
Even before we adopted the Barker factors for analyzing
allegations of post-trial delay due process violations, we
rejected claims of employment prejudice in the absence of
independent supporting evidence. In United States v. Jenkins,
38 M.J. 287, 289 (C.M.A. 1993), the appellant claimed that he
was interviewed by a specific company but could not be hired
10
United States v. Bush, 09-0119/MC
because he could not establish his Navy rating as an electronics
technician without his DD Form 214. This court rejected that
claim noting that it was unsupported by any independent
evidence. Id. As an appellant himself will generally lack
personal knowledge as to why he did not get hired, the
evidentiary deficiency in this circumstance is plain. See
Military Rule of Evidence (M.R.E.) 602 (“A witness may not
testify to a matter unless evidence is introduced sufficient to
support a finding that the witness has personal knowledge of the
matter.”); see also United States v. Gosser, 64 M.J. 93, 98
(C.A.A.F. 2006) (criticizing the appellant’s prejudice arguments
for failing to provide any substantive evidence “from persons
with direct knowledge of the pertinent facts”).
In most cases, the appropriate source of information
pertaining to the hiring decisions of a potential employer will
be a representative of the potential employer itself. Such was
the case in Jones, 61 M.J. at 84-85, where the appellant
submitted the affidavits of three company officials stating that
the appellant would have been considered for a position at the
company if he had his DD Form 214. In that context, this court
determined that the appellant established prejudice to
employment opportunities as a result of post-trial delay. Id.
at 85.
11
United States v. Bush, 09-0119/MC
Contrary to Bush’s contentions, we see no conflict between
our cases requiring that an appellant support his assertions of
employment prejudice with independent evidence and Ginn. As a
general matter, the now familiar principles of Ginn provide a
workable framework for analyzing when post-trial issues framed
by post-trial affidavits can be resolved without ordering a
factfinding hearing under DuBay, 17 C.M.A. 147, 37 C.M.R. 411.5
5
Ginn sets forth a number of factors under which a post-trial
evidentiary hearing would not be required. 47 M.J. at 248. As
we have previously stated, “The linchpin of the Ginn framework
is the recognition that a Court of Criminal Appeals’ factfinding
authority under Article 66(c) does not extend to deciding
disputed question of fact pertaining to a post-trial claim,
solely or in part on the basis of conflicting affidavits.”
United States v. Fagan, 59 M.J. 238, 242 (C.A.A.F. 2004).
However, “a post-trial evidentiary hearing is not required in
every case simply because an affidavit is submitted by an
appellant.” Id. at 241. The six factors articulated in Ginn
are as follows:
First, if the facts alleged in the affidavit allege an
error that would not result in relief even if any
factual dispute were resolved in appellant’s favor,
the claim may be rejected on that basis;
Second, if the affidavit does not set forth specific
facts but consists instead of speculative or
conclusory observations, the claim may be rejected on
that basis;
Third, 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;
Fourth, if the affidavit is factually adequate on its
face but the appellate filings and the record as a
12
United States v. Bush, 09-0119/MC
See Ginn, 47 M.J. at 248. However, if substantive law places a
burden of proof or persuasion on either party with respect to
issues raised post-trial, Ginn and its progeny do not relieve
that party of such a burden. See, e.g., United States v. Pena,
64 M.J. 259, 266-67 (C.A.A.F. 2007) (finding the appellant’s
declaration insufficient to support the post-trial claim that
his participation in the Mandatory Supervised Release program
produced an impermissible increase in the adjudged punishment).
Nor does Ginn alter the fundamental requirement that a witness’s
testimony be based upon personal knowledge. See M.R.E. 602.
In the context of Bush’s claim of employment prejudice
under the fourth Barker factor, he failed to provide independent
evidence to support his claim that lack of a DD Form 214
impaired his ability to secure employment and did not
demonstrate a valid reason for not doing so. Consequently, the
whole “compellingly demonstrate” the improbability of
those facts, the court may discount those factual
assertions and decide the legal issue;
Fifth, when an appellate claim . . . contradicts a
matter that is within the record of a guilty plea, an
appellate court may decide the issue on the basis of
the appellate file and record . . . unless the
appellant sets forth facts that would rationally
explain why he would have made such statements at
trial but not upon appeal;
Sixth, the Court of Criminal Appeals is required to
order a factfinding hearing only when the above-stated
circumstances are not met.
47 M.J. at 248.
13
United States v. Bush, 09-0119/MC
fourth Barker factor is resolved against Bush before the
question even arises as to whether, under Ginn, factual issues
raised in his declaration could be resolved without a DuBay
hearing.6 See Jones, 61 M.J. at 85 & n.25. As such, we see no
conflict.
2. The post-trial delay due process violation was
harmless beyond a reasonable doubt.
Bush contends that once the Court of Criminal Appeals found
a due process violation in the absence of Barker prejudice, it
erred in finding that the due process violation was harmless
beyond a reasonable doubt. Bush argues that the lower court
improperly interpreted Allende to effectively shift the burden
to him to establish that the due process violation was not
harmless beyond a reasonable doubt. The Government responds
that the lower court reached the right result but for the wrong
reasons, arguing that the harmless beyond a reasonable doubt
standard does not apply unless the appellant establishes
constitutionally recognized prejudice -- which Bush did not do
in this case. The Government argues that because any error was
not constitutional, the burden of showing prejudice was always
upon Bush.
6
That is not to say, however, that appellate courts will never
utilize the Ginn framework when considering claims of employment
prejudice from post-trial delay. In Jones, for example, citing
Ginn, 47 M.J. at 248, this court accepted the content of the
unrebutted declarations from the potential employers and applied
the law to the unrebutted facts. 61 M.J. at 85 & n.25.
14
United States v. Bush, 09-0119/MC
Initially, we disagree with any characterization of Allende
which suggests that the burden of proof or persuasion shifts to
an appellant to demonstrate that a post-trial due process
violation was not harmless beyond a reasonable doubt. Aside
from structural errors which are not susceptible of analysis for
harm, a constitutional error must be harmless beyond a
reasonable doubt before an appellate court can affirm the
resultant conviction or sentence. See United States v.
Kreutzer, 61 M.J. 293, 298-99 (C.A.A.F. 2005); United States v.
Hall, 58 M.J. 90, 94 (C.A.A.F. 2003) (citing United States v.
Walker, 57 M.J. 174, 178 (C.A.A.F. 2002)).
It is also clear that it is solely the Government’s burden
to persuade the court that constitutional error is harmless
beyond a reasonable doubt. See Chapman v. California, 386 U.S.
18, 24 (1967); United States v. Cendejas, 62 M.J. 334, 337
(C.A.A.F. 2006) (citing United States v. Simmons, 59 M.J. 485,
489 (C.A.A.F. 2004)); Kreutzer, 61 M.J. at 300 (citing Chapman,
386 U.S. at 24). We have not deviated from these black letter
principles in developing our post-trial delay, due process
jurisprudence. See United States v. Young, 64 M.J. 404, 409
(C.A.A.F. 2007); United States v. Allison, 63 M.J. 365, 370
(C.A.A.F. 2006); United States v. Harvey, 64 M.J. 13, 25
(C.A.A.F. 2006). This court reviews de novo both the
determination of a post-trial delay due process violation and
15
United States v. Bush, 09-0119/MC
the question of whether such a violation is harmless beyond a
reasonable doubt. Allison, 63 M.J. at 370 (citing Cendejas, 62
M.J. at 337).
As Bush notes in his brief, the determination of
harmlessness for post-trial delay is different than that applied
to constitutional trial errors. In the trial error arena, a
determination of harmless beyond a reasonable doubt tests
“‘whether, beyond a reasonable doubt, the error did not
contribute to the defendant’s conviction or sentence.’” United
States v. Wolford, 62 M.J. 418, 420 (C.A.A.F. 2006) (quoting
Kreutzer, 61 M.J. at 298); United States v. Grooters, 39 M.J.
269, 273 (C.M.A. 1994) (quoting Fahy v. Connecticut, 375 U.S.
85, 86-87 (1963)).
In contrast, post-trial delays do not necessarily impact
directly the findings or sentence. Instead, we must review the
record de novo to determine whether other prejudicial impact is
present from the delay. See, e.g., United States v. Szymczyk,
64 M.J. 179, 179 (C.A.A.F. 2006) (relief required for due
process violation where the delay “subjected Appellant to sex
offender registration requirements longer than otherwise would
have been necessary”); United States v. Dearing, 63 M.J. 478,
488 (C.A.A.F. 2006) (court unable to determine due process
violation to be harmless beyond a reasonable doubt because, in
part, Barker prejudice was found); Jones, 61 M.J. at 84-85
16
United States v. Bush, 09-0119/MC
(interference with post-military employment opportunities).
Unless we conclude beyond a reasonable doubt that the delay
generated no prejudicial impact, the Government will have failed
to attain its burden.
Despite the different nature of the inquiry into harmless
beyond a reasonable doubt where there is a post-trial delay due
process violation, the burden remains upon the Government.7 And,
just as we do in the case of constitutional trial errors, we
review the totality of the circumstances to determine whether
the due process violation is harmless beyond a reasonable doubt.
Young, 64 M.J. at 409; United States v. Rodriguez-Rivera, 63
M.J. 372, 386 (C.A.A.F. 2006); Allison, 63 M.J. at 371.
Where an appellant alleges a due process violation in a
post-trial delay context, and where a due process violation is
found, the analysis performed by the appellate court necessarily
7
In Allende, the court assumed a due process violation, which
eliminated the need for the balancing analysis, and went
directly to reviewing the totality of the circumstances to
determine whether the assumed error was harmless beyond a
reasonable doubt. 66 M.J. at 145 (citing Allison, 63 M.J. at
370-71). While Allende presents a different approach for coming
to the conclusion that there was a due process violation than
cases, such as this one, which utilize the Barker balancing
analysis to determine that there was a due process violation,
there is no difference in the burden and standard for reviewing
whether that error was harmless beyond a reasonable doubt. See,
e.g., Toohey, 63 M.J. at 359-62; Jones, 61 M.J. at 84-85.
Specifically, under both approaches, the Government bears the
burden and this court reviews the totality of the circumstances
de novo.
17
United States v. Bush, 09-0119/MC
involves two separate prejudice determinations. For this
reason, the discussion of “prejudice” in the context of a post-
trial delay due process violation can be confusing. To be
clear, the initial prejudice review occurs in evaluating the
fourth Barker factor, which defines prejudice to include
oppressive incarceration, undue anxiety, and “‘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 (citations omitted). If
a due process violation is found after balancing the Barker
factors, the appellate court determines whether, under the
totality of the circumstances, the error is harmless beyond a
reasonable doubt. That “harmless beyond a reasonable doubt”
review necessarily involves a prejudice analysis, and although
it involves a review of the same record, the scope and burden
differ from the Barker prejudice analysis.
The en banc Court of Criminal Appeals found there was no
Barker prejudice, but in balancing the remaining factors, the
lower court determined that there was a due process violation.
Bush CCA II, 67 M.J. at 512. We have no reason to disturb that
conclusion.8 Instead, in consideration of the granted issue, we
8
As this court has previously stated, “[n]o single factor is
required for finding a due process violation and the absence of
a given factor will not prevent such a finding.” Moreno, 63
M.J. at 136. In Toohey, we held that where no prejudice is
18
United States v. Bush, 09-0119/MC
focus on the determination that the due process error was
harmless beyond a reasonable doubt. Id. at 513. Bush contends
that the court imposed a burden upon him to raise a reasonable
doubt that the due process error was harmless. We note that the
language of the Court of Criminal Appeals could be read to
suggest that by “weigh[ing] heavily” Bush’s failure to
substantiate his claim of employment prejudice the lower court
placed some burden of production upon Bush. Id. If that is the
effect of the lower court’s decision, it is in error. Bush bore
no burden of demonstrating prejudice resulting from a due
process violation. However, in the absence of independent
evidence that Bush would have been hired or was otherwise
impaired from competing for a job for which he was qualified, it
found under Barker factor four, a due process violation could be
found if 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.” 63 M.J. at 362.
While the Government and the concurring opinion take issue with
this language, it is not ultimately determinative in the present
case and is therefore not addressed in the majority opinion.
Nevertheless, the Government overreads this language. Barker
factor four addresses specific prejudice to an appellant, not
public perception. To clarify, the “public perception” analysis
is utilized in quantifying the appropriate weight that is to be
given to Barker factors one (length of delay) and two (reasons
for delay) when balancing all the factors. In this case, Barker
factors one and two weigh in Appellant’s favor; however, as
detailed above, we decide this case on the ground that any
appellate delay was ultimately harmless beyond a reasonable
doubt.
19
United States v. Bush, 09-0119/MC
is also true that the Government may more readily demonstrate
that any error is harmless beyond a reasonable doubt.
We now review the totality of the circumstances de novo to
determine whether the post trial delay was harmless beyond a
reasonable doubt. This case involves a seven-year post-trial
delay, which is unreasonable on its face and which initially
triggered the due process analysis. The delay was largely
unexplained and was attributed to the Government. However, the
record is bereft of any evidence of prejudice to Bush as a
result of the delay.9 In circumstances where a record
establishes that an appellant has suffered Barker prejudice, the
9
As noted supra at pp. 6-7, the record contains Bush’s own
declaration claiming that he was not hired for a particular job
because he did not have his DD Form 214. Post-trial submissions
have no automatic value as evidence where they are not relevant
or where they are not based upon personal knowledge of the
declarant. See M.R.E. 401, M.R.E. 402, and M.R.E. 602. Thus,
with respect to determining whether an appellant meets his
burden of demonstrating fourth-prong, Barker prejudice or with
respect to reviewing the entire record to determine if a post-
trial delay due process violation is harmless beyond a
reasonable doubt, a reviewing court must first determine whether
post-trial submissions merit consideration. See Allende, 66
M.J. at 145 (assertions in personal affidavit about potential
employers’ employment practices not substantiated); Gosser, 64
M.J. at 98 (failed to substantiate any claim of Barker prejudice
where, in part, clemency assertions of defense counsel were not
based upon personal knowledge); Jones, 61 M.J. at 85 (prejudice
established by the appellant’s declaration about post-trial
employment difficulties which was substantiated by independent
declarations based upon personal knowledge). Bush’s declaration
as to the reasons that the particular employer declined to hire
him is not based on personal knowledge. See supra at p. 11. As
such, his unsupported allegations of employment prejudice have
no impact under our totality of the circumstances review.
20
United States v. Bush, 09-0119/MC
Government’s burden to establish that the constitutional
violation was harmless beyond a reasonable doubt may be
difficult to attain. The corollary seems apparent. In those
cases where the record does not reflect Barker prejudice, as a
practical matter, the burden to establish harmlessness may be
more easily attained by the Government.
Under the totality of circumstances in this record, we are
confident that the due process violation was harmless beyond a
reasonable doubt. To find otherwise would essentially adopt a
presumption of prejudice in cases where the appellate court has
found a due process violation as a result of unreasonable post-
trial delay in the absence of Barker prejudice. We have
declined to adopt such a standard in the past and see no need to
alter that position. See Moreno, 63 M.J. at 142 (noting that it
is “unnecessary” to adopt a presumption of prejudice at this
point as the court “can deter these delays and address the
systemic delays we see arising in post-trial and appellate
processing through less draconian measures”); see also Toohey,
63 M.J. at 363 (“we do not presume prejudice based on the length
of the delay alone”).
We have reviewed the totality of the circumstances and the
entire record, and conclude that record reflects that the post-
trial delay due process violation was harmless beyond a
reasonable doubt. As a consequence, we conclude that any error
21
United States v. Bush, 09-0119/MC
by the Court of Criminal Appeals in placing a burden of
production on Bush was harmless beyond a reasonable doubt.
DECISION
We affirm the decision of the United States Navy-Marine
Corps Court of Criminal Appeals.
22
United States v. Bush, No. 09-0119/MC
RYAN, J., with whom STUCKY, J., joins (concurring in the
judgment):
Relying on this Court’s holding in United States v. Toohey
(Toohey II), the majority accepts the lower court’s holding that
the significant appellate delay in this case violated
Appellant’s Fifth Amendment right to due process. See United
States v. Bush, __ M.J. __, __ (18 & n.8) (C.A.A.F. 2009)
(finding due process violations when “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’” (quoting Toohey II, 63 M.J. 353, 362 (C.A.A.F. 2006))).
The majority then finds that any constitutional error from the
delay was harmless beyond a reasonable doubt because the record
contains insufficient evidence that Appellant was prejudiced by
the delay. Id. at 18-21. Though I agree with the majority that
Appellant is not entitled to relief, and therefore concur in the
judgment, I do so because I do not believe that Appellant’s
Fifth Amendment rights were violated. I write separately
because I think the Court should have accepted the Government’s
request to reconsider our appellate delay due process
jurisprudence. This Court’s apparent ruling in Toohey II should
be abandoned, and we should cease the practice of basing due
process violations on public perception.
The Fifth Amendment states “No person shall be . . .
United States v. Bush, No. 09-0119/MC
deprived of life, liberty, or property, without due process of
law.” U.S. Const. amend. V. For convicted servicemembers with
a right to an appeal, this prohibition grants a right to timely
review of their convictions. United States v. Moreno, 63 M.J.
129, 132 (C.A.A.F. 2006). To determine whether this right has
been violated, this Court applies the four factors adopted by
the Supreme Court in Barker v. Wingo, 407 U.S. 514, 530 (1972),
for analyzing alleged violations of the Sixth Amendment Speedy
Trial Clause: (1) the length of the delay; (2) the reasons for
the delay; (3) the appellant’s assertion of his right to a
timely appeal; and (4) the prejudice to the appellant. Moreno,
63 M.J. at 135; Toohey v. United States (Toohey I), 60 M.J. 100,
102 (C.A.A.F. 2004).
Our analysis of prejudice related to post-trial appellate
delay considers three interests, each of which is tied to the
delay and the appellant: “‘(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 did not allege and the lower court did not
find any prejudice to these interests in this case. United
2
United States v. Bush, No. 09-0119/MC
States v. Bush, 67 M.J. 508, 513 (N-M. Ct. Crim. App. 2008)
(“The appellant does not assert and our review of the record did
not reveal evidence that the appellant has suffered ongoing
prejudice from oppressive incarceration or undue anxiety.”1).
And although Appellant alleged employment prejudice, cf. United
States v. Jones, 61 M.J. 80, 84 (C.A.A.F. 2005) (finding
prejudice where appellant demonstrated that the delay actually
interfered with his ability to find specific post-military
employment), this claim failed because Appellant provided no
“independent evidence to support his claim that lack of a DD
Form 214 impaired his ability to secure employment and did not
demonstrate a valid reason for not doing so.” Bush, __ M.J. at
__ (13).
The absence of prejudice in this case should end the due
process inquiry. But in Toohey II, relied upon by both the
United States Navy-Marine Corps Court of Criminal Appeals (CCA)
and the majority in this case, the Court appeared to recognize a
due process violation even in the absence of prejudice, based on
delay so egregious “it would adversely affect the public’s
perception of the fairness and integrity of the military justice
1
Although the CCA did not explicitly address it, Appellant has
not alleged and the record does not indicate any impairment to
his appeal or potential retrial.
3
United States v. Bush, No. 09-0119/MC
system.” Toohey II, 63 M.J. at 362.2 The problem is that damage
to the public’s perception of the military justice system, while
unfortunate, has no relation to a deprivation of life, liberty,
or property of an appellant, and does not constitute prejudice
to an appellant.3 “Judges are not free, in defining ‘due
process,’ to impose on law enforcement officials our ‘personal
and private notions’ of fairness and to ‘disregard the limits
that bind judges in their judicial function.’” United States v.
Lovasco, 431 U.S. 783, 790 (1977) (quoting Rochin v. California,
342 U.S. 165, 170 (1952)). In my view, Toohey II’s holding
2
Although the Court may have intended to reinterpret, rather
than replace, the Barker factors, see Bush, __ M.J. at __ (19
n.8) (“To clarify, the ‘public perception’ analysis is utilized
in quantifying the appropriate weight that is to be given to
Barker factors one (length of delay) and two (reasons for delay)
when balancing all the factors.”), subsequent courts have
nonetheless accepted the Toohey II opinion as a means of finding
constitutional violations based only on public perception. See,
e.g., United States v. Abdirahman, 66 M.J. 668, 683 (N-M. Ct.
Crim. App. 2008) (treating adverse public perception as separate
ground for relief); United States v. Bredschneider, 65 M.J. 739,
742 (N-M. Ct. Crim. App. 2007) (“After weighing the four Barker
factors, we conclude that the appellant has not suffered a
Barker-type post-trial due process violation. However, even
without specific prejudice, a due process violation may result
if 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.” (quoting Toohey II, 63 M.J. at
362)). If this is not what the Court intended, that is all the
more reason to revisit Toohey II.
3
Further, I question whether Appellant has standing to complain
of an injury to the public’s perception of the military justice
system. Generally, “a litigant must assert his or her own legal
rights and interests, and cannot rest a claim to relief on the
legal rights or interests of third parties.” Powers v. Ohio,
499 U.S. 400, 410 (1991) (citing Dep’t of Labor v. Triplett, 494
U.S. 715, 720 (1990); Singleton v. Wulff, 428 U.S. 106 (1976)).
4
United States v. Bush, No. 09-0119/MC
impermissibly expands the scope of a purported constitutional
violation beyond the bounds of interests protected by the Fifth
Amendment.
Moreover, the holding in Toohey II permits this Court to
find due process violations without any showing of specific
prejudice to an appellant. 63 M.J. at 359 (stating that “‘no
single [Barker] factor [is] required to find that post-trial
delay constitutes a due process violation’” (quoting Moreno, 63
M.J. at 136) (second bracketed interpolation in original)).
Whatever the necessity or sufficiency of a particular Barker
factor, though, and regardless whether there may be the rare and
unusual situation where the prejudice factor can be either
presumed or bypassed entirely, it does not follow that this
Court may apparently substitute public perception as a new
factor to replace a showing of prejudice. This practice puts
our Court at odds with almost all other federal courts to have
considered the issue.4 Indeed, our post-trial-delay due process
4
Seven circuits and the District of Columbia (which also applies
Fifth Amendment law) have held that prejudice is a required
element of a timely appeal due process violation. See, e.g.,
United States v. Rodriguez, 259 Fed. App’x 270, 277-78 (11th
Cir. 2007); United States v. DeLeon, 444 F.3d 41, 57 (1st Cir.
2006); United States v. Gray, 52 Fed. App’x 650, 654 (6th Cir.
2002); United States v. Wiktor, 146 F.3d 815, 819 (10th Cir.
1998); United States v. Hawkins, 78 F.3d 348, 352 (8th Cir.
1996); United States v. Kimmons, 917 F.2d 1011, 1014–15 (7th
Cir. 1990); United States v. Antoine, 906 F.2d 1379, 1382 (9th
Cir. 1990); United States v. Alston, 412 A.2d 351, 357-58 (D.C.
1980). One more circuit has applied a prejudice requirement
5
United States v. Bush, No. 09-0119/MC
jurisprudence is based on the Supreme Court’s Sixth Amendment
speedy trial jurisprudence, which requires a showing of
prejudice to establish a speedy trial violation. Reed v.
Farley, 512 U.S. 349, 353 (1994). “[T]hat necessary ingredient
is entirely missing here.” Id.
Nor is it clear how helpful Toohey II is to appellants in
practice, as it necessarily leads to bizarre scenarios like the
one presented today. First, the CCA decided that Appellant had
failed to establish any constitutionally cognizable prejudice.
Then, despite this failure, the CCA concluded that there was a
due process violation based on public perception. Finally, the
CCA awarded no relief because it was convinced, as this Court
agrees, that the constitutional violation was harmless beyond a
reasonable doubt -- the Government met its burden because
Appellant did not provide independent evidence of his lost
when analyzing the Fourteenth Amendment’s due process
protections, see Heiser v. Ryan, 15 F.3d 299, 304 (3d Cir.
1994), and would presumably apply such a requirement in a Fifth
Amendment case. Only the Second Circuit appears to find a due
process violation without a showing of prejudice, but has then
required a showing of prejudice before that violation warrants a
remedy. Elcock v. Henderson, 28 F.3d 276, 279 (2d Cir. 1994).
The Fourth, Fifth, and District of Columbia Circuits do not
appear to have addressed this point directly. However, the
Fifth Circuit has frequently stressed the importance of
prejudice in analyzing alleged due process violations, calling
it “the most important factor,” and emphasizing that it is
ordinarily, though perhaps not absolutely, required. United
States v. Bermea, 30 F.3d 1539, 1568-69 (5th Cir. 1994). No
court relies on public perception as a substitute for prejudice.
6
United States v. Bush, No. 09-0119/MC
employment opportunity.
This reasoning comes dangerously close to shifting onto
Appellant the burden of proving harmlessness. Despite the
assurances of the majority that Appellant “bore no burden of
demonstrating prejudice,” the majority admits that the
Government’s burden was “more readily demonstrate[d]” in the
absence of such evidence. __ M.J. at __ (19, 20); see also id.
at __ (15) (“It is . . . clear that it is solely the
Government’s burden to persuade the court that constitutional
error is harmless beyond a reasonable doubt. We have not
deviated from th[is] black letter principle[] in developing our
post-trial delay, due process jurisprudence.” (citations
omitted)). The reality, then, is that in cases where prejudice
is not part of the basis for the alleged due process violation,
the Toohey II rule arguably shifts the burden to the appellant
in the harmlessness analysis to prove the very prejudice the
Court failed to require in the first place.
This situation could easily be avoided. If we were to
require, like most of the federal circuits, a showing of
prejudice before finding a due process violation, as the Supreme
Court’s speedy trial jurisprudence suggests we should, we would
eliminate this problem: If an appellant submits evidence of
prejudice sufficient to show a constitutional violation, that
evidence will already be part of the record and present for the
7
United States v. Bush, No. 09-0119/MC
Court’s consideration at the harmlessness analysis. This would
not only be cleaner and simpler, but it also would follow the
ordinary model of constitutional inquiry into an alleged due
process violation. See, e.g., Gardner v. California, 393 U.S.
367, 370 (1969) (placing the burden on the petitioner to
convince the appellate court of the error below); Chapman v.
California, 386 U.S. 18, 24 (1967) (requiring “the beneficiary
of a constitutional error to prove beyond a reasonable doubt
that the error complained of did not contribute to the verdict
obtained”); United States v. Harvey, 64 M.J. 13, 25 (C.A.A.F.
2006) (quoting United States v. Brewer, 61 M.J. 425, 432
(C.A.A.F. 2005)).
I would revisit and either clarify or overrule Toohey II,
but respectfully concur in the judgment.
8