United States v. Moreno , 2006 CAAF LEXIS 632 ( 2006 )


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  •                        UNITED STATES, Appellee
    v.
    Javier A. MORENO Jr., Corporal
    U.S. Marine Corps, Appellant
    No. 04-0698
    Crim. App. No. 200100715
    United States Court of Appeals for the Armed Forces
    Argued September 21, 2005
    Decided May 11, 2006
    ERDMANN, J., delivered the opinion of the court, in which
    GIERKE, C.J., and EFFRON and BAKER, JJ., joined. CRAWFORD, J.,
    filed a separate opinion concurring in part and dissenting in
    part.
    Counsel
    For Appellant:    Lieutenant Brian L. Mizer, JAGC, USNR (argued).
    For Appellee: Major Kevin C. Harris, USMC (argued); Lieutenant
    Colonel William Lietzau, USMC, Commander Charles N. Purnell,
    JAGC, USN, and Lieutenant Donald L. Palmer, JAGC, USNR (on
    brief).
    Military Judge:   E. B. Stone
    This opinion is subject to revision before final publication.
    United States v. Moreno Jr., No. 04-0698/MC
    Judge ERDMANN delivered the opinion of the court.
    Corporal Javier A. Moreno Jr. was tried by general court-
    martial for the offense of rape in violation of Article 120,
    Uniform Code of Military Justice (UCMJ), 
    10 U.S.C. § 920
     (2000).
    Moreno entered a plea of not guilty but was convicted by members
    who subsequently sentenced him to a dishonorable discharge,
    confinement for six years, forfeiture of all pay and allowances,
    and reduction to the lowest enlisted grade.    The convening
    authority approved the sentence and the United States Navy-
    Marine Corps Court of Criminal Appeals affirmed the findings and
    sentence in an unpublished decision.    United States v. Moreno,
    No. NMCCA 200100715, 
    2004 CCA LEXIS 118
     (N-M. Ct. Crim. App. May
    13, 2004).    We granted review of three issues.1
    1
    On March 18, 2005, we granted review of the following issues:
    I.
    WHETHER LIEUTENANT COLONEL [F] WAS AN INVESTIGATING
    OFFICER WITHIN THE MEANING OF R.C.M. 912(f)(1)(F) AND
    SHOULD NOT HAVE SERVED AS PRESIDENT OF APPELLANT’S
    COURT-MARTIAL.
    II.
    WHETHER LIEUTENANT COLONEL [F]’S SERVICE AS PRESIDENT
    OF APPELLANT’S COURT-MARTIAL RAISED SUBSTANTIAL DOUBT
    TO THE LEGALITY, FAIRNESS, AND IMPARTIALITY OF
    APPELLANT’S COURT-MARTIAL.
    III.
    WHETHER APPELLANT’S DUE PROCESS RIGHT TO TIMELY REVIEW
    OF HIS APPEAL HAS BEEN DENIED.
    We heard argument in this case on September 21, 2005, aboard the
    USS RONALD REAGAN (CVN 76) afloat in the Pacific Ocean as part
    of the Court’s “Project Outreach.” See United States v.
    2
    United States v. Moreno Jr., No. 04-0698/MC
    An accused is entitled to a trial by members who are
    qualified, properly selected, and impartial.   See Article 25,
    UCMJ, 
    10 U.S.C. § 825
     (2000).   Moreno claims that Lieutenant
    Colonel (LtCol) F, the president of his court-martial, should
    have been removed because he had conducted an investigation of
    the case, had extensive knowledge of this case and that of
    Moreno’s co-accused, and was married to a rape counselor who had
    previously worked at the family advocacy office where the
    alleged victim was counseled.   We conclude that the presence of
    LtCol F on the panel created substantial doubt about the
    fairness and impartiality of this court-martial and that the
    military judge erred in denying the challenge for cause against
    LtCol F.2
    Due process entitles convicted servicemembers to a timely
    review and appeal of court-martial convictions.    Toohey v.
    United States, 
    60 M.J. 100
    , 101 (C.A.A.F. 2004).    Moreno asserts
    that he was denied due process because there was unreasonable
    Mahoney, 
    58 M.J. 346
    , 347 n.1 (C.A.A.F. 2003). This practice
    was developed as part of a public awareness program to
    demonstrate the operation of a Federal Court of Appeals and the
    military justice system.
    2
    Because of our holding that the military judge erred in denying
    the challenge for cause against LtCol F, we need not address the
    first granted issue concerning whether LtCol F acted as an
    investigating officer within the meaning of Rule for Courts-
    Martial (R.C.M.) 912(f)(1)(F), Manual for Courts-Martial, United
    States (2005 ed.) (MCM). Similarly, because we find that LtCol
    F possessed too much pretrial information about the case, we
    need not address the effect of his wife’s role as a rape
    counselor.
    3
    United States v. Moreno Jr., No. 04-0698/MC
    delay in the 1,688 days between the end of his trial and the
    date upon which the United States Navy-Marine Corps Court of
    Criminal Appeals rendered its decision in his case.   We conclude
    that Moreno was denied his due process right to speedy appellate
    review and we find that under the circumstances of this case
    relief is warranted.
    BACKGROUND
    Moreno worked in the comptroller’s disbursing office.
    Among the members detailed to Moreno’s court-martial was LtCol
    F, the deputy comptroller.   Lieutenant Colonel F was advised of
    the incident that gave rise to the rape charge by Moreno’s
    officer-in-charge.   Lieutenant Colonel F decided to look into
    the incident further so that he could brief the comptroller.     In
    the course of his inquiry into the incident, LtCol F became
    aware of information that had been entered into various
    logbooks.   He spoke to some of the duty officers who had
    knowledge of the incident and he read various articles that were
    published in Stars and Stripes.   Lieutenant Colonel F described
    his efforts to gather this information as “simply fact finding.
    You know, I wanted to be able to get all the –- find out what
    was being reported in the logbook and just so I had a complete
    picture before I talked to my boss on what he would be hearing
    Monday morning.”
    4
    United States v. Moreno Jr., No. 04-0698/MC
    In addition to his personal inquiries into the incident,
    LtCol F became aware of Moreno’s co-accused’s case based on what
    he read in Stars and Stripes.   Lieutenant Colonel F’s pretrial
    knowledge of the incident and the subsequent criminal cases
    included:   (1) that the incident involved drinking at the club;
    (2) that the victim may have been drugged; (3) that there had
    been sexual contact; (4) that both Moreno and his co-accused
    were placed in pretrial confinement; (5) that the co-accused
    could be a witness at Moreno’s trial; and (6) that there were
    delays in Moreno’s trial relating to obtaining the co-accused’s
    presence at Moreno’s trial.
    Defense counsel challenged eight members appointed by the
    convening authority on a variety of grounds.      The defense
    asserted that LtCol F could not be impartial because he
    “followed this case closely” and had “read everything involving
    this case.”   The Government responded that the defense counsel
    had failed to state a reason for a challenge under Rule for
    Courts-Martial (R.C.M.) 912, Manual for Courts-Martial, United
    States (2005 ed.) (MCM).3   The military judge, while granting
    seven of the eight challenges for cause, denied the challenge
    against LtCol F without comment.       The defense counsel then
    3
    R.C.M. 912(f)(1)(N) in the 2005 edition of the MCM is identical
    to that in the 1998 edition of the MCM that was in effect at the
    time of Moreno’s trial.
    5
    United States v. Moreno Jr., No. 04-0698/MC
    exercised a peremptory challenge against another member.
    Ultimately, LtCol F served as president of the court-martial.
    Moreno was sentenced on September 29, 1999.    Two hundred
    eight days later, the 746-page record of trial was authenticated
    by the military judge.   On January 31, 2001, 490 days after
    completion of the trial, the convening authority took action.
    Seventy-six days later, the case was docketed at the Navy-Marine
    Corps Court of Criminal Appeals.
    The Navy-Marine Corps Court of Criminal Appeals granted
    eighteen motions for enlargement of time to Moreno’s appellate
    defense attorney before the defense brief was filed on March 20,
    2003 (702 days from docketing).    The Government filed an answer
    brief on October 29, 2003 (223 days from submission of Moreno’s
    brief).   The Court of Criminal Appeals issued its unpublished
    decision on May 13, 2004 (197 days from the completion of
    briefing).    Four years, seven months and fourteen days (1,688
    days) elapsed between the completion of trial and the completion
    of Moreno’s appeal of right under Article 66, UCMJ, 
    10 U.S.C. § 866
     (2000).
    DISCUSSION
    Implied Bias
    Moreno asserts that LtCol F’s presence on his court-martial
    panel undermined public confidence in military justice and that,
    under the liberal grant mandate, the military judge should have
    6
    United States v. Moreno Jr., No. 04-0698/MC
    granted the challenge for cause.       The Government argues that
    some knowledge of the facts does not serve to disqualify a
    potential court member and that the totality of the
    circumstances reveals that Moreno did not meet his burden of
    showing a substantial doubt as to the legality, fairness or
    impartiality of the trial.
    Rule for Courts-Martial 912 includes challenges based upon
    the distinct concepts of actual bias and implied bias.      United
    States v. Napoleon, 
    46 M.J. 279
    , 283 (C.A.A.F. 1997); United
    States v. Minyard, 
    46 M.J. 229
    , 231 (C.A.A.F. 1997).       In this
    case we are concerned with the possibility of implied bias under
    R.C.M. 912(f)(1)(N), which provides a basis for challenge when
    it appears an individual “[s]hould not sit as a member in the
    interest of having the court-martial free from substantial doubt
    as to legality, fairness, and impartiality.”
    The test for implied bias is objective.       Viewing the
    circumstances through the eyes of the public and focusing on the
    perception or appearance of fairness in the military justice
    system, we ask whether, despite a disclaimer of bias, most
    people in the same position as the court member would be
    prejudiced.   United States v. Napolitano, 
    53 M.J. 162
    , 167
    (C.A.A.F. 2000); United States v. Warden, 
    51 M.J. 78
    , 81
    (C.A.A.F. 1999).   We look to determine whether there is “too
    high a risk that the public will perceive” that the accused
    7
    United States v. Moreno Jr., No. 04-0698/MC
    received less than a court composed of fair, impartial, equal
    members.   United States v. Weisen, 
    56 M.J. 172
    , 176 (C.A.A.F.
    2001).   We review rulings on challenges for implied bias under a
    standard that is less deferential than abuse of discretion, but
    more deferential than de novo review.   United States v.
    Armstrong, 
    54 M.J. 51
    , 54 (C.A.A.F. 2000); Napolean, 46 M.J. at
    283.
    In reviewing a ruling on a challenge for cause, we remain
    mindful of the liberal grant mandate.   “[M]ilitary judges must
    follow the liberal-grant mandate in ruling on challenges for
    cause” asserted by an accused.   United States v. White, 
    36 M.J. 284
    , 287 (C.M.A. 1993); see also United States v. James, 
    61 M.J. 132
    , 139 (C.A.A.F. 2005); United States v. Downing, 
    56 M.J. 419
    ,
    422 (C.A.A.F. 2002).   The liberal grant mandate recognizes the
    unique nature of military courts-martial panels, particularly
    that those bodies are detailed by convening authorities and that
    the accused has only one peremptory challenge.   See James, 
    61 M.J. at 139
    ; Downing, 56 M.J. at 422; United States v. Rome, 
    47 M.J. 467
    , 469 (C.A.A.F. 1998); United States v. Hamilton, 
    41 M.J. 22
    , 25 (C.M.A. 1994).   Thus, we will overturn a military
    judge’s ruling on an accused’s challenge for cause where he
    clearly abuses his discretion in applying the liberal grant
    mandate.
    8
    United States v. Moreno Jr., No. 04-0698/MC
    Implied bias should be invoked sparingly.   United States v.
    Strand, 
    59 M.J. 455
    , 458 (C.A.A.F. 2004) (citing Warden, 51 M.J.
    at 81-82); Rome, 47 M.J. at 469.       Nevertheless, we are not
    reluctant to apply the doctrine to ensure the appearance of
    fairness in courts-martial.    Thus, in Minyard, 46 M.J. at 231-
    32, we reversed a conviction where the wife of an investigating
    agent who worked on the case was allowed to sit on the panel.
    In Weisen, 56 M.J. at 175-77, we reversed a conviction where the
    president of the court-martial and his military subordinates
    comprised two-thirds of the panel.      Similarly, in United States
    v. Miles, 
    58 M.J. 192
    , 195 (C.A.A.F. 2003), we reversed a
    conviction for use of cocaine where the military judge denied a
    challenge to a member whose nephew died from complications
    associated with his mother’s prenatal use of cocaine.4
    From the outset, LtCol F took an active interest in this
    case.    He took it upon himself to seek out information so that
    he could get a “complete picture” to brief his boss, the
    comptroller.    His preparations for the briefing included
    conducting personal interviews of duty officers and reading
    entries in various log books.    Once he had gathered the
    information to brief the comptroller, his interest in Moreno’s
    case did not wane.    He read about the charges against Moreno in
    4
    See also United States v. Daulton, 
    45 M.J. 212
    , 216-18
    (C.A.A.F. 1996); United States v. Smart, 
    21 M.J. 15
    , 18-21
    (C.M.A. 1985).
    9
    United States v. Moreno Jr., No. 04-0698/MC
    newspapers and also read about the court-martial of Moreno’s co-
    accused, who was acquitted of wrongdoing for the same incident.5
    We believe that an objective observer would perceive that
    LtCol F possessed an excessive level of pretrial knowledge about
    the incident to sit as an impartial panel member.   His personal
    inquiry went beyond a routine passing of information to a
    superior.   His inquiries were so thorough that he subjectively
    believed he knew all there was to know -- that he had the
    “complete picture.”
    Under these circumstances -- where LtCol F had investigated
    the incident, weighed facts, made recommendations based on his
    conclusions and continued to follow both this case and the case
    of Moreno’s co-accused in the press -– an objective observer
    could reasonably question whether LtCol F could come to any
    different conclusions based solely on evidence presented in
    court.   An observer could also reasonably question whether LtCol
    F would contradict his initial conclusions and recommendations
    to the comptroller if warranted by the evidence.
    An objective observer could harbor a reasonable concern
    that as president of the court-martial, LtCol F would exert
    influence over other court-martial members arising from his in-
    5
    Moreno’s co-actor was acquitted of rape on August 19, 1999.
    The following day, an article appeared in Stars and Stripes
    captioned “Okinawa Marine innocent of rape.” On August 27,
    1999, Stars and Stripes reported that Moreno’s trial would
    proceed despite the co-actor’s acquittal.
    10
    United States v. Moreno Jr., No. 04-0698/MC
    depth personal knowledge of the facts rather than from the
    evidence presented in court.   We also believe that the objective
    observer would not accord much weight to LtCol F’s assertion
    that he could be impartial in view of the depth of his prior
    involvement.    “[W]e do not accept as conclusive a challenged
    member’s perfunctory disclaimer of personal interest or his
    assertion of impartiality.”    United States v. Smart, 
    21 M.J. 15
    ,
    19 (C.M.A. 1985).
    Thus, we hold that there is a substantial doubt that this
    trial was by a panel of members who were fair and impartial and
    the military judge therefore erred by denying the challenge for
    cause against LtCol F.
    Speedy Post-Trial and Appellate Review
    Moreno contends that the 1,688 days that elapsed between
    the completion of his court-martial and the decision of the
    Court of Criminal Appeals was unreasonable and denied him due
    process.   Moreno argues that he had legitimate claims of error
    in his case and that the delay has denied him the opportunity
    for meaningful relief.   The Government counters that the time
    involved in Moreno’s post-trial processing and appeal was not
    unreasonable.   Alternatively, the Government asserts that even
    if the delay is unreasonable, Moreno’s due process rights have
    not been violated.
    11
    United States v. Moreno Jr., No. 04-0698/MC
    The Supreme Court has recognized “the procedures used in
    deciding appeals must comport with the demands of the Due
    Process and Equal Protection Clauses of the Constitution.”
    Evitts v. Lucey, 
    469 U.S. 387
    , 393 (1985); see also Diaz v.
    Judge Advocate General of the Navy, 
    59 M.J. 34
    , 38 (C.A.A.F.
    2003).    “[A]n appeal that is inordinately delayed is as much a
    ‘meaningless ritual,’ Douglas [v. California, 
    372 U.S. 353
    , 358
    (1963)], as an appeal that is adjudicated without the benefit of
    effective counsel or a transcript of the trial court
    proceedings.”   Harris v. Champion (Harris II), 
    15 F.3d 1538
    ,
    1558 (10th Cir. 1994).
    This court has recognized that convicted servicemembers
    have a due process right to timely review and appeal of courts-
    martial convictions.   Toohey, 
    60 M.J. at 101
    ; Diaz, 
    59 M.J. at 37-38
    .    We review de novo claims that an appellant has been
    denied the due process right to a speedy post-trial review and
    appeal.   See United States v. Rodriguez, 
    60 M.J. 239
    , 246
    (C.A.A.F. 2004) (conclusions of law are reviewed under the de
    novo standard); United States v. Cooper, 
    58 M.J. 54
    , 58
    (C.A.A.F. 2003) (speedy trial issues, as conclusions of law, are
    reviewed de novo).
    In conducting this review we have adopted the four factors
    set forth in Barker v. Wingo, 
    407 U.S. 514
    , 530 (1972):     (1) the
    length of the delay; (2) the reasons for the delay; (3) the
    12
    United States v. Moreno Jr., No. 04-0698/MC
    appellant’s assertion of the right to timely review and appeal;
    and (4) prejudice.   United States v. Jones, 
    61 M.J. 80
    , 83
    (C.A.A.F. 2005); Toohey, 
    60 M.J. at 102
    .    While Barker addressed
    speedy trial issues in a pretrial, Sixth Amendment context, its
    four-factor analysis has been broadly adopted for reviewing
    post-trial delay due process claims.6
    Once this due process analysis is triggered by a facially
    unreasonable delay, the four factors are balanced, with no
    single factor being required to find that post-trial delay
    constitutes a due process violation.    Barker, 
    407 U.S. at 533
    (“We regard none of the four factors identified above as either
    a necessary or sufficient condition to the finding of a
    deprivation of [due process].”); Simmons v. Reynolds, 
    898 F.2d 865
    , 868 (2d Cir. 1990) (“[N]o one factor is dispositive and all
    6
    Latimore v. Spencer, 
    994 F. Supp. 60
    , 67 (D. Mass. 1998)
    (“[T]he First Circuit examines such cases on a case by case
    basis applying factors similar to those employed in Barker.”);
    Simmons v. Reynolds, 
    898 F.2d 865
    , 868 (2d Cir. 1990); Burkett
    v. Cunningham, 
    826 F.2d 1208
    , 1222 (3d Cir. 1987); United States
    v. Johnson, 
    732 F.2d 379
    , 381-82 (4th Cir.), cert. denied, 
    469 U.S. 1033
     (1984); Rheuark v. Shaw, 
    628 F.2d 297
    , 303 (5th Cir.
    1980), cert. denied, 
    450 U.S. 931
     (1981); United States v.
    Smith, 
    94 F.3d 204
    , 207 (6th Cir. 1996); United States v.
    Kimmons, 
    917 F.2d 1011
    , 1015 (7th Cir. 1990); United States v.
    Hawkins, 
    78 F.3d 348
    , 350-51 (8th Cir.), cert. denied, 
    519 U.S. 844
     (1996); United States v. Tucker, 
    8 F.3d 673
    , 676 (9th Cir.
    1993)(en banc), cert. denied, 
    510 U.S. 1182
     (1994); Harris v.
    Champion (Harris I), 
    938 F.2d 1062
    , 1068 (10th Cir. 1991);
    Harris v. Champion (Harris II), 
    15 F.3d 1538
    , 1559 (10th Cir.
    1994); Harris v. Champion (Harris III), 
    48 F.3d 1127
     (10th Cir.
    1995).
    13
    United States v. Moreno Jr., No. 04-0698/MC
    are to be considered together with the relevant
    circumstances.”).
    We analyze each factor and make a determination as to
    whether that factor favors the Government or the appellant.       See
    Rheuark v. Shaw, 
    628 F.2d 297
    , 303 (5th Cir. 1980) (calling for
    an ad hoc evaluation of the four Barker factors).     We then
    balance our analysis of the factors to determine whether there
    has been a due process violation.    Barker, 
    407 U.S. at 533
    (“[C]ourts must still engage in a difficult and sensitive
    balancing process.”).   No single factor is required for finding
    a due process violation and the absence of a given factor will
    not prevent such a finding.   
    Id.
        With this structure as our
    guide, we turn to an analysis of the four factors as they arise
    in Moreno’s case.
    1.   Length of the delay
    Initially, unless the delay is facially unreasonable, the
    full due process analysis will not be triggered.    Toohey, 
    60 M.J. at 102
    .   We conduct a case-by-case analysis to determine if
    a given delay is facially unreasonable.7    
    Id. at 103
    .8   In this
    7
    Rheuark, 
    628 F.2d at 303
     (“[N]ot every delay in the appeal of a
    case, even an inordinate one, violates due process.”).
    8
    In the speedy trial context, “extreme cases of delay would
    produce a strong presumption of prejudice to the ability of a
    party to defend itself at trial . . . .” United States v.
    Smith, 
    94 F.3d 204
    , 211 (6th Cir. 1996) (citing Doggett v.
    United States, 
    505 U.S. 647
    , 655-58 (1992)). Circuit courts
    have split on whether the Doggett presumption of prejudice is
    14
    United States v. Moreno Jr., No. 04-0698/MC
    case we conclude that the overall period of post-trial review
    and appeal, 1,688 days, is facially unreasonable and thus we
    will proceed to the remaining Barker factors.
    2.   Reasons for the delay
    Under this factor we look at the Government’s
    responsibility for any delay, as well as any legitimate reasons
    for the delay, including those attributable to an appellant.    In
    assessing the reasons for any particular delay, we examine each
    stage of the post-trial period because the reasons for the delay
    may be different at each stage and different parties are
    responsible for the timely completion of each segment.9
    The 490 days between the end of trial and the convening
    authority’s action is excessive for the post-trial processing of
    this case.   The processing in this segment is completely within
    the control of the Government and no exceptional circumstances
    have been offered to explain this delay.   See United States v.
    Bigelow, 
    57 M.J. 64
    , 68-69 (C.A.A.F. 2002).   It is striking that
    this period is over five times longer than that deemed
    reasonable by this court when we established the ninety-day rule
    in Dunlap v. Convening Authority, 
    23 C.M.A. 135
    , 
    48 C.M.R. 751
    applicable to a due process appellate delay analysis. Compare
    Harris II, 
    15 F.3d at 1564
    , and Smith, 
    94 F.3d at 211-12
    (presumption applicable), with United States v. Mohawk, 
    20 F.3d 1480
    , 1487-88 (9th Cir. 1994) (presumption not applicable).
    15
    United States v. Moreno Jr., No. 04-0698/MC
    (1974).10   The seventy-six days between action and docketing the
    case before the Court of Criminal Appeals is also unexplained.
    Delays involving this essentially clerical task have been
    categorized as “the least defensible of all” post-trial delays.
    United States v. Dunbar, 
    31 M.J. 70
    , 73 (C.M.A. 1990).
    The longest delay in this case -– 925 days -- involves the
    period from which the case was docketed at the Court of Criminal
    Appeals until briefing was complete.     The Government claims that
    Moreno is directly responsible for the almost two years it took
    to file his brief at the Court of Criminal Appeals.     The record
    reflects that appellate defense counsel sought and was granted
    eighteen enlargements of time within which to file a brief.
    Enlargement numbers four through eighteen each contained the
    same reason for the request:   “other case load commitments.”
    While the Government argued that this period of delay was
    in Moreno’s interest, there was no evidence demonstrating that
    the enlargements were directly attributable to Moreno or that
    the need for additional time arose from other factors such as
    the complexity of Moreno’s case.      The Government further argued
    9
    Convening authorities, reviewing authorities, and the Courts of
    Criminal Appeals can provide significant relief for unreasonable
    delays at their respective stages of the process.
    10
    In Dunlap v. Convening Authority, 
    23 C.M.A. 135
    , 138, 
    48 C.M.R. 751
    , 754 (1974), this court presumed a denial of speedy
    disposition where the convening authority failed to take action
    within ninety days of trial. The presumption placed “a heavy
    burden on the Government to show diligence, and in the absence
    16
    United States v. Moreno Jr., No. 04-0698/MC
    that we should presume the delays were for Moreno’s benefit, but
    did not provide any legal authority to support such a
    presumption.   There is no evidence in this case that the
    numerous requests for delay filed by appellate defense counsel
    benefited Moreno or that Moreno was consulted about and agreed
    to these delays.   “Other case load commitments” logically
    reflects that Moreno’s case was not getting counsel’s
    professional attention, a fact that is the very antithesis of
    any benefit to Moreno.   We therefore decline to hold Moreno
    accountable for this period of delay.   As we said in Diaz, 
    59 M.J. at
    38:
    Appellate counsel caseloads are a result of
    management and administrative priorities and
    as such are subject to the administrative
    control of the Government. 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. To the contrary, the Government
    has a statutory responsibility to establish
    a system of appellate review under Article
    66 that preserves rather than diminishes the
    rights of convicted servicemembers. In
    connection with that responsibility, the
    Government has a statutory duty under
    Article 70 to provide Petitioner with
    appellate defense counsel who is able to
    represent him in both a competent and timely
    manner before the Court of Criminal Appeals.
    of such a showing the charges should be dismissed.”   
    Id.
    (internal quotation marks omitted).
    17
    United States v. Moreno Jr., No. 04-0698/MC
    Internal footnote omitted.   See also Barker, 
    407 U.S. at 531
    (noting that ultimate responsibility of delay caused by
    negligence or overcrowded courts rests with the Government).11
    While appellate defense counsel’s caseload is the
    underlying cause of much of this period of delay, responsibility
    for this portion of the delay and the burden placed upon
    appellate defense counsel initially rests with the Government.
    The Government must provide adequate staffing within the
    Appellate Defense Division to fulfill its responsibility under
    the UCMJ to provide competent and timely representation.   See
    Article 70, UCMJ, 
    10 U.S.C. § 870
     (2000).   Ultimately the timely
    management and disposition of cases docketed at the Courts of
    Criminal Appeals is a responsibility of the Courts of Criminal
    Appeals.   Therefore, we decline to hold Moreno responsible for
    the lack of “institutional vigilance” which should have been
    exercised in this case.   See Diaz, 
    59 M.J. at 39-40
    .
    The final period of delay is the 197 days from submission
    of the final briefs to the Court of Criminal Appeals’ decision.
    We will apply a more flexible review of this period, recognizing
    that it involves the exercise of the Court of Criminal Appeals’
    11
    See Harris II, 
    15 F.3d at 1562-63
     (“lack of funding and,
    possibly, the mismanagement of resources by the Public Defender”
    were not an “acceptable excuse for delay.”); Coe v. Thurman, 
    922 F.2d 528
    , 531 (9th Cir. 1990) (failures of court-appointed
    counsel and delays by the court are attributable to the state);
    Simmons v. Beyer, 
    44 F.3d 1160
    , 1170 (3d Cir. 1995).
    18
    United States v. Moreno Jr., No. 04-0698/MC
    judicial decision-making authority.12   We find that a period of
    slightly over six months is not an unreasonable time for review
    by the Court of Criminal Appeals.    Thus, under Barker’s second
    factor -– reasons for the delay -– the unreasonable delays in
    this case are either unexplained or the responsibility of the
    Government.   There is no reason given for the unreasonable
    delays in getting this case from trial to the convening
    authority for action and in docketing the case before the Court
    of Criminal Appeals after action.    The Government bears
    responsibility for unreasonable delay during appeal occasioned
    by the workload of appellate defense counsel.   We conclude that
    this second Barker factor weighs heavily in favor of Moreno.
    3.   Assertion of the right to a timely review and appeal
    This factor calls upon us to examine an aspect of Moreno’s
    role in this delay.   Moreno did not object to any delay or
    assert his right to timely review and appeal prior to his
    arrival at this court.   The Supreme Court in Barker, 
    407 U.S. at
    12
    “Courts, of course, are not excluded from the obligation to
    give defendants a speedy trial. But the function of appellate
    courts necessarily casts the delay attendant upon their
    deliberations in a somewhat different light . . . .” United
    States v. Biston, 
    463 F.2d 887
    , 890 (D.C. Cir. 1972). We are
    mindful in the military justice system of the distinct functions
    of a first level appeal of right court as opposed to a
    discretionary second level appellate court. The Courts of
    Criminal Appeals have “unique authority that is the product of
    the evolution of military justice in the United States.” United
    States v. Boone, 
    49 M.J. 187
    , 191 (C.A.A.F. 1998). Congress
    provided these appellate tribunals with “an authority rarely if
    ever seen in other appellate courts.” 
    Id. at 192
    .
    19
    United States v. Moreno Jr., No. 04-0698/MC
    531-32, noted that where the defendant has asserted his speedy
    trial right, it is “entitled to strong evidentiary weight in
    determining whether the defendant is being deprived of the
    right.”   The Court rejected, however, “the rule that a defendant
    who fails to demand a speedy trial forever waives his rights.”
    
    Id. at 528
    .
    We do not believe this factor weighs heavily against Moreno
    under the circumstances of this case.   The obligation to ensure
    a timely review and action by the convening authority rests upon
    the Government and Moreno is not required to complain in order
    to receive timely convening authority action.   United States v.
    Bodkins, 
    60 M.J. 322
    , 323-24 (C.A.A.F. 2004).   Similarly, Moreno
    bears no responsibility for transmitting the record of trial to
    the Court of Criminal Appeals after action.   Nor is it
    unreasonable to assume, as Moreno argues, that a convicted
    person wants anything other than a prompt resolution of his
    appeal.   See Harris II, 
    15 F.3d at 1563
    .
    We also recognize the paradox of requiring Moreno to
    complain about appellate delay either to his appellate counsel
    who sought multiple enlargements of time because of other case
    commitments or to the appellate court that granted the
    enlargements on a routine basis.13   While this factor weighs
    13
    See Harris II, 
    15 F.3d at 1563
     (“Furthermore, petitioners were
    hampered by the fact that they had to speak through their
    counsel in the state court appellate process and, in most
    20
    United States v. Moreno Jr., No. 04-0698/MC
    against Moreno, the weight against him is slight given that the
    primary responsibility for speedy processing rests with the
    Government and those to whom he could complain were the ones
    responsible for the delay.
    4.   Prejudice
    In Barker, 
    407 U.S. at 532
    , the Supreme Court recognized a
    framework to analyze the “prejudice” factor in a speedy trial
    context.   We agree with the Fifth Circuit’s modification of that
    framework for analyzing prejudice in a due process post-trial
    delay analysis:
    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. We identify three similar interests
    for prompt appeals: (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.
    Rheuark, 
    628 F.2d at
    303 n.8; see also United States v. Hawkins,
    
    78 F.3d 348
    , 351 (8th Cir. 1996); Coe v. Thurman, 
    922 F.2d 528
    ,
    532 (9th Cir. 1990); Harris II, 
    15 F.3d at 1547
    .
    instances, it was that very counsel who was responsible for the
    delay. Under these circumstances, we cannot fairly expect
    petitioners to have raised the issue of delay in state court.”).
    21
    United States v. Moreno Jr., No. 04-0698/MC
    a.   Oppressive Incarceration Pending Appeal
    This sub-factor is directly related to the success or
    failure of an appellant’s substantive appeal.    If the
    substantive grounds for the appeal are not meritorious, an
    appellant is in no worse position due to the delay, even though
    it may have been excessive.    Cody v. Henderson, 
    936 F.2d 715
    ,
    720 (2d Cir. 1991).    Under these circumstances, an appellant
    would have served the same period of incarceration regardless of
    the delay.    United States v. Antoine, 
    906 F.2d 1379
    , 1382 (9th
    Cir. 1990).    However, if an appellant’s substantive appeal is
    meritorious and the appellant has been incarcerated during the
    appeal period, the incarceration may have been oppressive.    Coe,
    922 F.2d at 532.
    Moreno served his full term of confinement before his
    appeal of right was resolved by the Court of Criminal Appeals.
    Before this court he has prevailed on a substantive appellate
    issue, his conviction will be set aside and he is entitled to a
    retrial.   As the Fifth Circuit has noted:
    Moreover, if an appeal is not frivolous, a
    person convicted of a crime may be receiving
    punishment the effects of which can never be
    completely reversed or living under the
    opprobrium of guilt when he or she has not
    been properly proven guilty and may indeed
    be innocent under the law.
    Rheuark, 
    628 F.2d at 304
    .14
    14
    “A system of appeal as of right is established precisely to
    assure that only those who are validly convicted have their
    22
    United States v. Moreno Jr., No. 04-0698/MC
    Moreno was sentenced to six years of incarceration.
    Although the record does not provide us with a precise release
    date, we can be reasonably certain that Moreno was released from
    confinement prior to the Court of Criminal Appeals’ decision.
    Based on the 150 days of pretrial confinement credit and the
    duration of the adjudged confinement, we estimate that Moreno’s
    minimum release date was about April, 2003.    Thus, he had served
    at least four years in confinement, under a conviction that has
    now been set aside, prior to his appeal of right being decided.
    We therefore find that he has suffered some degree of prejudice
    as the result of oppressive incarceration.15
    b.   Anxiety and Concern
    This sub-factor involves constitutionally cognizable
    anxiety that arises from excessive delay.   Federal courts have
    adopted different approaches to this “prejudice” sub-factor.
    The Second Circuit has affirmed district court decisions which
    found anxiety-based prejudice that arose solely from the length
    of the delay.   Yourdon v. Kelly, 
    969 F.2d 1042
     (2d Cir.
    freedom drastically curtailed.”    Evitts v. Lucey, 
    469 U.S. 387
    ,
    399-400 (1985).
    15
    We note that this factor (oppressive incarceration) would
    weigh heavily against the Government if the incarceration
    relates to a finding that a Court of Criminal Appeals reverses
    for factual insufficiency. See Diaz v. Judge Advocate General
    of the Navy, 
    59 M.J. 34
    , 39 (C.A.A.F. 2003) (“Unlike the
    civilian criminal justice system, the Courts of Criminal Appeals
    have unique fact finding authority, and that aspect of a
    23
    United States v. Moreno Jr., No. 04-0698/MC
    1992)(table decision), aff’g 
    769 F. Supp. 112
    , 115 (W.D.N.Y.
    1991); Snyder v. Kelly, 
    972 F.2d 1328
     (2d Cir. 1992)(table
    decision), aff’g 
    769 F. Supp. 108
    , 111 (W.D.N.Y. 1991).16
    The Ninth Circuit requires a showing of “particular
    anxiety”, which must be distinguished from the normal anxiety
    experienced by any prisoner awaiting an appellate decision.
    Antoine, 
    906 F.2d at 1383
    ; see also Coe, 922 F.2d at 532.       The
    Third Circuit requires an appellant “to detail anxiety related
    to the processing of his case post-conviction.”    Burkett v.
    Fulcomer, 
    951 F.2d 1431
    , 1447 (3d Cir. 1991).     The Tenth Circuit
    requires a “particularized and substantial showing of anxiety
    and concern, absent a delay so excessive as to trigger the
    Doggett presumption of prejudice.”   Harris II, 
    15 F.3d at 1565
    .
    While some circuits require that an appellant have a
    meritorious appeal to prevail on this sub-factor, see 
    id.,
    others have recognized anxiety arising from excessive delays
    regardless of whether the appellant prevails on a substantive
    servicemember’s case is not concluded until that review is
    completed.”).
    16
    Those district courts and the Second Circuit have found that
    the more appropriate remedy for anxiety-based prejudice arising
    from excessive appellate delay is an action for damages under 
    42 U.S.C. § 1983
     (2000). Cody v. Henderson, 
    936 F.2d 715
    , 720 (2d
    Cir. 2000). We recognize that military service members are
    unable to pursue relief under 
    42 U.S.C. § 1983
     as a result of
    the extended Feres v. United States, 
    340 U.S. 135
     (1950),
    doctrine. Chappell v. Wallace, 
    462 U.S. 296
    , 304 (1983).
    24
    United States v. Moreno Jr., No. 04-0698/MC
    issue.17   We believe that the appropriate test for the military
    justice system is to require an appellant to show particularized
    anxiety or concern that is distinguishable from the normal
    anxiety experienced by prisoners awaiting an appellate decision.
    This particularized anxiety or concern is thus related to the
    timeliness of the appeal, requires an appellant to demonstrate a
    nexus to the processing of his appellate review, and ultimately
    assists this court to “fashion relief in such a way as to
    compensate [an appellant] for the particular harm.”   Burkett,
    
    951 F.2d at 1447
    .   We do not believe that the anxiety that an
    appellant may experience is dependent upon whether his
    substantive appeal is ultimately successful.   An appellant may
    suffer constitutionally cognizable anxiety regardless of the
    outcome of his appeal.
    Moreno argues that he suffered prejudice because he was
    required to register as a sex offender upon his release from
    incarceration without the opportunity of having his appeal of
    right heard and decided.   See 
    42 U.S.C. § 14071
    (a)(1)(A),
    (b)(6)(A) (2000).   Moreno essentially argues that had his appeal
    been processed in a timely manner, it would have been resolved
    17
    Snyder v. Kelly, 
    769 F. Supp. 108
    , 111 (W.D.N.Y. 1991) (where
    conviction affirmed, court noted, “While he has not presented
    any evidence of prejudice to the appeal itself, it would not
    strike this Court as unusual that a five-year delay would
    profoundly worry an individual hopefully awaiting an ultimate
    appellate reversal”).
    25
    United States v. Moreno Jr., No. 04-0698/MC
    before his release from incarceration.   Had Moreno’s conviction
    been affirmed prior to his release, registration as a sex
    offender would have been a proper consequence of his conviction.
    However, Moreno argues that he has been “living under the
    opprobrium of guilt when he . . . has not been properly proven
    guilty and may indeed be innocent under the law.”   Rheuark, 
    628 F.2d at 304
    .    The excessive delay in this case and our
    disposition of the implied bias issue lend credence to Moreno’s
    claim that he was prejudiced by the requirement to register as a
    sex offender.   We find that this circumstance constitutes
    constitutional anxiety that is distinguishable from the normal
    anxiety experienced by prisoners awaiting appeal and that as a
    result Moreno has suffered some degree of prejudice.
    c.   Impairment of Ability to Present a Defense at a Rehearing
    This final sub-factor is directly related to whether an
    appellant has been successful on a substantive issue of the
    appeal and whether a rehearing has been authorized.    If an
    appellant does not have a meritorious appeal, there obviously
    will be no prejudice arising from a rehearing.   If, however, a
    conviction has been set aside and a rehearing authorized, the
    appellate delay encountered by the appellant may have a negative
    impact on his ability to prepare and present his defense at the
    rehearing.   Due to the passage of time, witnesses may be
    26
    United States v. Moreno Jr., No. 04-0698/MC
    unavailable, memories may have faded and records of trial may
    have been misplaced or lost.
    In order to prevail on this factor an appellant must be
    able to specifically identify how he would be prejudiced at
    rehearing due to the delay.18   Mere speculation is not enough.
    United States v. Mohawk, 
    20 F.3d 1480
    , 1487 (9th Cir. 1994).
    Moreno claims that prejudice exists under this factor because of
    the potential harm he would suffer in the event he is successful
    on appeal and a rehearing is authorized.   He does not, however,
    identify any specific harm that he would encounter at a
    rehearing and he has therefore failed to establish prejudice
    under this sub-factor.19
    18
    A requirement that an appellant demonstrate prejudice is not a
    unique requirement. See United States v. Chatman, 
    46 M.J. 321
    ,
    323-24 (C.A.A.F. 1997) (the court required an appellant
    “demonstrate prejudice [from new matter in a staff judge
    advocate’s addendum] by stating what, if anything, would have
    been submitted to ‘deny, counter, or explain’ the new matter.”);
    United States v. Moulton, 
    47 M.J. 227
    , 229 (C.A.A.F. 1997) (a
    defendant who claims ineffective assistance of counsel must show
    that a counsel’s deficient performance was “‘so serious as to
    deprive the defendant of a fair trial, a trial whose result is
    reliable.’” (quoting Strickland v. Washington, 
    466 U.S. 668
    , 687
    (1984))).
    19
    We are mindful of the difficulty that an appellant and his
    appellate defense counsel may have at this juncture of the
    process in identifying problems that would hinder an appellant’s
    ability to present a defense at rehearing. If an appellant does
    experience problems in preparing for trial due to the delay, a
    Sixth Amendment speedy trial motion could appropriately be
    brought at the trial level. “[W]e are inclined to believe that
    a consideration of the Sixth Amendment speedy trial right in its
    most pristine sense would be triggered by any retrial of such a
    person. The consideration would, of course, be an ad hoc
    27
    United States v. Moreno Jr., No. 04-0698/MC
    Conclusion -– Barker Factors
    Because of the unreasonably lengthy delay, the lack of any
    constitutionally justifiable reasons for the delay, and the
    prejudice suffered by Moreno as a result of oppressive
    incarceration and anxiety, our balancing of the four Barker
    factors leads us to conclude that Moreno was denied his due
    process right to speedy review and appeal.    Because we have
    found legal error and substantial prejudice to a material right,
    as well as a deprivation of due process, we need to consider
    appropriate relief.   See Jones, 
    61 M.J. at 86
    .
    Before we turn to that consideration, we address post-trial
    processing standards in the military justice system.   Our
    concern for post-trial timeliness has been heightened by the
    number of appellate delay cases that have come before this court
    and cases that are pending elsewhere in the military justice
    system.   In recognition of the due process issues involved in
    timely post-trial review and appeal and in response to the cases
    giving rise to our concerns, we will establish post-trial
    processing standards to be applied to cases yet to enter the
    post-trial and appellate processes.
    Post-Trial Processing Standards
    In 1974 this court adopted a “presumption of a denial of
    speedy disposition of the case” if a convening authority failed
    determination based on the four factors of Barker.”    Rheuark,
    28
    United States v. Moreno Jr., No. 04-0698/MC
    to take action within ninety days of trial.   Dunlap, 23 C.M.A.
    at 138, 48 C.M.R. at 754.   Five years later this court abandoned
    that rule and expressed confidence that military justice had
    overcome the numerous circumstances giving rise to that rule:
    Dunlap came in response to a problem which
    frequently manifested itself where the
    convening authority delayed his final
    action. See generally United States v.
    Jefferson, 
    22 U.S.C.M.A. 554
    , 
    48 C.M.R. 39
    (1973); United States v. Gray, 
    22 U.S.C.M.A. 443
    , 
    47 C.M.R. 484
     (1973); United States v.
    Timmons, 
    22 U.S.C.M.A. 226
    , 
    46 C.M.R. 226
    (1973); United States v. Wheeler, 
    21 U.S.C.M.A. 468
    , 
    45 C.M.R. 242
     (1972); United
    States v. Whitmire, 
    21 U.S.C.M.A. 268
    , 
    45 C.M.R. 42
     (1972); United States v. Davis, 
    20 U.S.C.M.A. 541
    , 
    43 C.M.R. 381
     (1971); United
    States v. Prater, 
    20 U.S.C.M.A. 339
    , 
    43 C.M.R. 179
     (1971). However, convicted
    service persons now enjoy protections which
    had not been developed when Dunlap was
    decided. For example, in United States v.
    Palenius, 
    2 M.J. 86
     (C.M.A. 1977), we
    announced duties on the part of the trial
    defense attorney which are designed to
    insure a continuous, uninterrupted
    representation of the convicted accused
    service person. Performance of those
    functions may well remove the causes which
    concerned the Dunlap Court. And in United
    States v. Brownd, 
    6 M.J. 338
     (C.M.A. 1979)
    we announced standards by which applications
    for deferment of sentence are to be judged
    in appropriate cases. Thus the serviceman
    awaiting final action by the convening
    authority may avail himself of remedies
    during the pendency of review which were not
    clear when Dunlap was decided.
    United States v. Banks, 
    7 M.J. 92
    , 93 (C.M.A. 1979).   See also
    United States v. Kossman, 
    38 M.J. 258
    , 261 (C.M.A. 1993)
    
    628 F.2d at
    303 n.8.
    29
    United States v. Moreno Jr., No. 04-0698/MC
    (eliminating the ninety-day rule for bringing a servicemember to
    trial when that member is in pretrial confinement).
    Unfortunately, our confidence that procedural protections
    would suffice to ensure the speedy post-trial and appellate
    rights of servicemembers has been eroded.   It is of some concern
    that the Government brief asserts that the 1,688 day delay in
    this case was reasonable.20   We reject that contention and note
    that Moreno’s case is not an isolated case that involves
    excessive post-trial delay issues.21
    This increase in processing time stands in contrast to the
    lower number of cases tried in the military justice system in
    recent years.   Our separate system of military justice often
    provides different or diminished constitutional rights in light
    of the need for prompt disposition of disciplinary matters.     It
    follows then, as this court has noted, that the unique nature of
    review under Article 66(c), UCMJ, “calls for, if anything, even
    greater diligence and timeliness than is found in the civilian
    system.”   Diaz, 
    59 M.J. at 39
    .
    20
    “[T]he facts show the post-trial processing of Appellant’s
    case has been reasonable, if not expeditious.”
    21
    See United States v. Oestmann, 
    61 M.J. 103
     (C.A.A.F. 2005);
    United States v. Jones, 
    61 M.J. 80
     (C.A.A.F. 2005); Rodriguez-
    Rivera v. United States and The Judge Advocate General of the
    Navy, 
    61 M.J. 19
     (C.A.A.F. 2005); United States v. Toohey, 
    60 M.J. 100
     (C.A.A.F. 2003); Diaz, 
    59 M.J. 34
    ; United States v.
    Tardif, 
    57 M.J. 219
     (C.A.A.F. 2002).
    30
    United States v. Moreno Jr., No. 04-0698/MC
    We believe that adopting the Doggett presumption of
    prejudice is unnecessary at this point.   We can deter these
    delays and address the systemic delays we see arising in post-
    trial and appellate processing through less draconian measures.
    See Simmons, 
    898 F.2d at 869
    .   Although we do not foreclose the
    possibility that presumptions of prejudice may yet prove
    necessary, we do not believe it is necessary to adopt such a
    presumption at this juncture.
    Nonetheless, some action is necessary to deter excessive
    delay in the appellate process and remedy those instances in
    which there is unreasonable delay and due process violations.22
    For courts-martial completed thirty days after the date of this
    opinion, we will apply 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.   We will apply a similar presumption
    of unreasonable delay for courts-martial completed thirty days
    after the date of this opinion where the record of trial is not
    22
    We are mindful of the importance of providing a deterrent to
    improper Government action, including actions that delay post-
    trial and appellate processing. One such very significant
    deterrent, the exclusionary rule, was developed to protect not
    only the constitutional rights of individuals accused of crime,
    but also the integrity of and respect for the criminal justice
    system. See Mapp v. Ohio, 
    367 U.S. 643
    , 655 (1961). The
    exclusionary rule emphasizes that constitutional rights have
    meaning and a deprivation of those rights has ramifications.
    See Marc M. Arkin, Speedy Criminal Appeal: A Right Without A
    Remedy, 
    74 Minn. L. Rev. 437
    , 459-60 (1990).
    31
    United States v. Moreno Jr., No. 04-0698/MC
    docketed by the service Court of Criminal Appeals within thirty
    days of the convening authority’s action.
    For those cases arriving at the service Courts of Criminal
    Appeals thirty days after the date of this decision, we will
    apply a presumption of unreasonable delay where appellate review
    is not completed and a decision is not rendered within eighteen
    months of docketing the case before the Court of Criminal
    Appeals.   These presumptions of unreasonable delay will be
    viewed as satisfying the first Barker factor and they will apply
    whether or not the appellant was sentenced to or serving
    confinement.   It is important to note that the presumptions
    serve to trigger the four-part Barker analysis -– not resolve
    it.   The Government can rebut the presumption by showing the
    delay was not unreasonable.   By using these presumptions we
    trigger an appellate analysis and allocate the burden; we do not
    legislate or undermine the President’s rulemaking authority
    under Article 36, UCMJ, 
    10 U.S.C. § 836
     (2000).
    Some cases will present specific circumstances warranting
    additional time, thus making those periods reasonable upon
    assessment of the Barker factors.    But these must be
    justifiable, case-specific delays supported by the circumstances
    of that case and not delays based upon administrative matters,
    manpower constraints or the press of other cases.   We expect
    convening authorities, reviewing authorities and the Courts of
    32
    United States v. Moreno Jr., No. 04-0698/MC
    Criminal Appeals to document reasons for delay and to exercise
    the institutional vigilance that was absent in Moreno’s case.
    Once the four-factor analysis is completed and those
    factors balanced, reviewing authorities that find a denial of
    speedy post-trial or appeal “should ‘tailor an appropriate
    remedy, if any is warranted, to the circumstances of the case.’”
    Jones, 61 M.J. at 86 (quoting United States v. Tardif, 
    57 M.J. 219
    , 225 (C.A.A.F. 2002)).   The nature of that relief will
    depend on the circumstances of the case, the relief requested,
    and may include, but is not limited to:   (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.   Clearly this range of
    meaningful options to remedy the denial of speedy post-trial
    processing provides reviewing authorities and courts with the
    flexibility necessary to appropriately address these situations
    on a case-by-case basis.23
    23
    Post-trial delay cases that arise in Article III courts do so
    in the context of a writ of habeas corpus with relief generally
    limited to dismissal of the charges. As we generally review the
    issue of post-trial delay on direct appeal, we have a number of
    remedies not available to Article III courts.
    33
    United States v. Moreno Jr., No. 04-0698/MC
    Those cases tried or received at a Court of Criminal
    Appeals prior to the date of this opinion and therefore not
    encompassed by the foregoing presumptions of unreasonable delay
    will continue to be reviewed on a case-by-case basis under the
    Barker due process analysis.    Delays have been tolerated at all
    levels in the military justice system so much so that in many
    instances they are now considered the norm.   The effect of this
    opinion is to provide notice that unreasonable delays that
    adversely impact an appellant’s due process rights will no
    longer be tolerated.
    Relief in Moreno’s Case
    In Moreno’s case, a rehearing is the appropriate remedy for
    the military judge’s erroneous denial of the challenge for cause
    against LtCol F.   In considering the range of options to address
    the denial of Moreno’s due process right to speedy review and
    appeal, we considered directing a day-for-day credit for each
    day of unreasonable and unexplained delay.    Such a credit would
    have no meaningful effect, however, as Moreno served the full
    term of adjudged confinement after his initial trial.
    We have also considered dismissing the charge and
    specification with prejudice.   Dismissal would be a
    consideration if the delay either impaired Moreno’s ability to
    defend against the charge at a rehearing or resulted in some
    other evidentiary prejudice.    See Tardif, 57 M.J. at 224 (citing
    34
    United States v. Moreno Jr., No. 04-0698/MC
    United States v. Timmons, 
    22 C.M.A. 226
    , 227, 
    46 C.M.R. 226
    , 227
    (1973); United States v. Gray, 
    22 C.M.A. 443
    , 445, 
    47 C.M.R. 484
    , 486 (1973)).   We find no such evidence before us.     Finally,
    because we must set aside the sentence in order to permit a
    rehearing, there is no direct sentence relief that we can afford
    to Moreno.   Compare Jones, 
    61 M.J. at 86
     (this court formulated
    a remedy for prejudicial denial of speedy appellate review where
    neither the adjudged sentence nor the convening authority’s
    action were to be set aside).
    We are not, however, without power to effect appropriate
    relief in this case.   Should there be a rehearing resulting in a
    conviction and new sentencing, we believe that limiting the
    sentence that may be approved by the convening authority will
    adequately afford Moreno relief for the deprivation of his
    speedy appellate review due process rights.
    DECISION
    The decision of the United States Navy-Marine Corps Court
    of Criminal Appeals is reversed.       The findings and sentence are
    set aside and a rehearing may be ordered.      In the event that a
    rehearing is held resulting in a conviction and sentence, the
    convening authority may approve no portion of the sentence
    exceeding a punitive discharge.
    35
    United States v. Moreno, No. 04-0698/MC
    CRAWFORD, Judge (concurring in part and dissenting in
    part):
    I respectfully dissent because the majority:   (1) usurps
    the role of Congress and the President, as delegated by Congress
    to the executive branch by Article 36, Uniform Code of Military
    Justice (UCMJ), 
    10 U.S.C. § 836
     (2000), by establishing
    prospective rules setting forth timelines for the post-trial
    processing of cases in the military justice system; and (2)
    misapplies the speedy trial balancing factors of Barker v.
    Wingo, 
    407 U.S. 514
    , 529-33 (1972).
    I agree with the majority that the military judge should
    have granted the challenge for cause, and thus concur in the
    result.
    I.   Separation of Powers
    A.   History
    The wisdom of our Founding Fathers is reflected in the
    process and procedures they established in the Constitution.      To
    prevent centralization of power, the Founding Fathers
    established three branches of government, each with its own
    rules, powers, and responsibility, and serving as a check on
    each other rather than one exercising the role of two branches
    of government.   As James Madison said, “There can be no liberty
    . . . if the power of judging be not separated from the
    legislative and executive powers.”    The Federalist No. 47, at
    United States v. Moreno, No. 04-0698/MC
    302 (James Madison) (Clinton Rossiter ed., 1961).    Accordingly,
    Madison cited the “oracle” Montesquieu for the admonition of our
    Founding Fathers that the “preservation of liberty requires that
    the three great departments of power should be separate and
    distinct.”    
    Id.
     No. 47, at 301 (James Madison).   In separating
    the powers of the departments of the federal government, the
    Founding Fathers established a system of checks and balances “by
    so contriving the interior structure of the government as that
    its several constituent parts may, by their mutual relations, be
    the means of keeping each other in their proper places.    
    Id.
     No.
    51, at 320 (James Madison).
    B.     Congressional Delegation
    Under Article 36, UCMJ, Congress has delegated to the
    President the power to prescribe rules for post-trial
    procedures.    By establishing prospective rules setting forth
    timelines for post-trial processing, the majority assumes the
    role delegated to the President by Congress in Article 36, UCMJ,
    in contravention of the constitutional separation of powers
    doctrine.
    In Barker v. Wingo, the Supreme Court rejected judicial
    rulemaking to specify a time period for when a defendant will be
    offered a trial.    
    407 U.S. at 523
    .   The Court concluded that
    setting out a time period to identify when the speedy trial
    right has been infringed would require the Court “to engage in
    2
    United States v. Moreno, No. 04-0698/MC
    legislative or rulemaking activity, rather than in the
    adjudicative process to which [the Court] should confine [its]
    efforts.”    Barker, 
    407 U.S. at 523
    .    The Court reasoned its
    “approach must be less precise” and that it should not establish
    procedural rules because there is “no constitutional basis for
    holding that the speedy trial right can be quantified into a
    specified number of days or months.”      
    Id.
          In creating specific
    timelines that, if violated, equate to unreasonable delay, the
    majority is essentially modifying the Rules for Courts-Martial
    (R.C.M.) and attempting to assume the role of the President in
    violation of separation of powers principles.
    II.   Post-Trial Delay
    A.     General
    While the Supreme Court has not addressed the issue of
    whether the Constitution guarantees a right to a speedy appeal,
    the lower federal courts and this Court have.         “The speedy trial
    guarantee of the Sixth Amendment applies only to proceedings in
    the trial court.      Our sister circuits have held, however, that a
    similar guarantee applies to criminal appeals via the Due
    Process Clause.”      United States v. Smith, 
    94 F.3d 204
    , 206 (6th
    Cir. 1996) (citations omitted).      The right to a speedy trial is
    guaranteed an accused by the Sixth Amendment.         The Due Process
    Clause provides that “No person shall . . . be deprived of life,
    liberty, or property, without due process of law . . . .”         U.S.
    3
    United States v. Moreno, No. 04-0698/MC
    Const. amend. V.   An appellant’s right to a speedy appellate
    review evolves from an appellant’s due process rights under the
    Fifth Amendment.   Harris v. Champion, 
    15 F.3d 1538
    , 1558 (10th
    Cir. 1994).   When examining these constitutional rights, we must
    look at the text, the history, the tradition behind the
    constitutional amendments, prior precedent, and practical
    consequences.   See County of Sacramento v. Lewis, 
    523 U.S. 833
    ,
    857 (1998) (must consider “history and tradition”); United
    States v. Mara, 
    410 U.S. 19
    , 37 (1973) (must examine the
    teachings of history and tradition).
    The federal courts have recognized that generally “there is
    no due process right to an appeal at all, but that an appeal
    must nonetheless comport with due process ‘if a State has
    created appellate courts as an integral part’ of its criminal
    justice system.”   Smith, 
    94 F.3d at 206-07
     (quoting Harris, 
    15 F.3d at 1558
    ) (internal quotation marks omitted).   The courts
    considering this issue have conducted a case-by-case basis
    analysis, applying a modified version of the four factors of
    Barker to determine whether the delay in an appeal violated an
    appellant’s due process rights to a speedy post-trial review.
    These four factors are:   (1) length of the delay; (2) reasons
    for the delay; (3) the appellant’s assertion of his right to a
    timely appeal; and (4) prejudice to appellant.   Barker, 
    407 U.S. at 529-33
    .
    4
    United States v. Moreno, No. 04-0698/MC
    In Barker, the Supreme Court adopted a “balancing test”
    approach in evaluating these factors in speedy trial violations
    “in which the conduct of both the prosecution and the defendant
    are weighed.”    Barker, 
    407 U.S. at 530
    .    The “balancing test
    necessarily compels courts to approach speedy trial cases on an
    ad hoc basis.”     
    Id.
       None of these four factors is “a necessary
    or sufficient condition to finding of a deprivation of the right
    of speedy trial.”    
    Id. at 533
    .    Courts must engage in the
    “difficult and sensitive balancing process” of all of the
    factors in evaluating whether a post-trial delay violates an
    appellant’s due process.     See 
    id. at 533
    .
    In Toohey v. United States, 
    60 M.J. 100
    , 102 (C.A.A.F.
    2004), this Court recognized that servicemembers have a due
    process right to speedy appellate review and used modified
    Barker factors to evaluate whether appellate delay violates an
    appellant’s due process rights.     See also Diaz v. Judge Advocate
    General of the Navy, 
    59 M.J. 34
    , 37-38 (C.A.A.F. 2003)
    (servicemembers have a right to have their cases reviewed in a
    timely fashion).
    Courts have viewed appellate delays differently than trial
    delays.   “[N]ot every delay in the appeal of a case, even an
    inordinate one, violates due process.”      Rheuark v. Shaw, 
    628 F.2d 297
    , 303 (5th Cir. 1980).     Most federal courts have not
    created a “benchmark” for triggering a presumption of prejudice.
    5
    United States v. Moreno, No. 04-0698/MC
    But see Harris, 
    15 F.3d at 1559-60
     (Tenth Circuit has held that
    a two-year appellate delay will create a rebuttable presumption
    that the constitutional threshold has been crossed).    See also
    Barker, 
    407 U.S. at 523
     (Court specifically rejected
    establishing a specified time period to bring a defendant to
    trial).   The federal courts evaluate the peculiar circumstances
    of each case to determine whether the length of the delay
    provokes a constitutional inquiry.    “[U]nless 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.’”     Smith, 
    94 F.3d at 209
    (quoting Barker, 
    407 U.S. at 530
    ).    “[I]f the constitutional
    inquiry has been triggered, the length of delay is itself
    balanced with the other factors” in the Barker analysis.        
    Id.
    In extreme circumstances, the length of delay may give rise to a
    strong “presumption of evidentiary prejudice” to a defendant’s
    ability to defend himself at trial.     See Doggett v. United
    States, 
    505 U.S. 647
    , 655-57 (1992).1    But see Smith, 
    94 F.3d. at 212-13
     (“We deem Doggett relevant, but we hold that the
    presumption of prejudice, if any, in this case of three-year
    appellate delay has been clearly rebutted.”) (emphasis added).
    1
    Under the Doggett presumption of prejudice analysis, if the
    delay triggers the Barker analysis, there is a presumption of
    prejudice and “the only question is how much ‘importance’ to
    assign to that prejudice.” Smith, 
    94 F.3d at 212
    .
    6
    United States v. Moreno, No. 04-0698/MC
    B.   Applying the Barker Analysis to This Case
    1.    Length of the Delay
    In this case, there has been delay of nearly 1,700 days
    between the completion of Appellant’s court-martial and the
    Court of Criminal Appeals’ decision.      On its face, this delay is
    sufficient to trigger an inquiry using the Barker analysis.
    2.    Reasons for the Delay
    Although there were significant delays at all phases of the
    post-trial process in this case, the greatest portion of that
    delay involves the period from when the case was docketed at the
    Court of Criminal Appeals until the briefing was complete.     It
    is the majority’s conclusion regarding this period of delay with
    which I have the greatest disagreement.     The appellate defense
    counsel requested and was granted eighteen enlargements of time
    in which to file a brief.    The reason stated for enlargements
    four through eighteen was “other case load commitments.”     The
    majority refuses to hold Appellant accountable for any portion
    of this delay even though neither Appellant nor his defense
    counsel requested assistance within the appellate division or
    outside the appellate division from outside contractors or other
    services’ appellate divisions to process this appeal.     Despite
    the lack of a request for assistance because of “case load
    commitments,” incredibly, the majority concludes “there was no
    7
    United States v. Moreno, No. 04-0698/MC
    evidence demonstrating that the enlargements were directly
    attributable to Moreno.”
    In my view, unless the appellate defense counsel was
    ineffective or was acting unethically or outside the scope of
    his authority, the actions he took to obtain additional delays
    in the filing of the appellate briefs were performed for and on
    behalf of Appellant.    Presumably, appellate defense counsel
    filed requests for delays with the knowledge of Appellant
    because a reasonably effective counsel would have communicated
    with his client.   The majority ultimately lays the blame for the
    delay at the feet of the Court of Criminal Appeals.     It holds
    that regardless of the appellate defense counsel’s case load
    problems, the Courts of Criminal Appeals are responsible for the
    “timely management and disposition of cases docketed at the
    Courts of Criminal Appeals.”
    This case reinforces the wisdom of the federal and state
    courts placing the burden on Appellant to show prejudice.    There
    are a number of questions to be asked of defense counsel -- What
    other cases did you have?   How did you stagger them?   Did you
    prioritize the cases?   What issues were present?   What were the
    difficulties in contacting Appellant?   Was there a conflict in
    Appellant’s wishes and your desires?    Did you request assistance
    from your supervisor?
    8
    United States v. Moreno, No. 04-0698/MC
    The Government is simply not in a position to answer
    questions as to why the defense counsel asked for extended
    delays.    See United States v. Lewis, 
    42 M.J. 1
     (C.A.A.F. 1995).
    Nor can the Government answer questions regarding the impact of
    the requested delays on the strategy, theories, or theme of the
    defense.   Yet, contrary to the prevailing jurisprudence of
    federal and state courts, the majority relieves Appellant from
    his burden of demonstrating actual prejudice and incredibly
    shifts the responsibility for the delay to the Government.
    Thus, the majority has created an incentive for the defense to
    request enlargements knowing they will not be asked these
    questions absent a court order.
    Delay must be examined on the basis of the facts in a
    specific case and not based on the length of delay alone.     In
    fact, merely asking for numerous delays has ended up benefiting
    Appellant.   Based on the majority decision, I predict that
    appellate courts will receive many more requests for
    enlargements from appellate defense counsels in order to get the
    benefit of the presumption of unreasonable delay in a speedy
    appellate review scenario.   It is incredible that while
    recognizing this lengthy period of time is attributable to the
    appellate defense counsel’s requests for delay, the majority
    declines to hold Appellant accountable for any of it.
    9
    United States v. Moreno, No. 04-0698/MC
    3.   Appellant’s Assertion of His Right to a Timely Appeal
    Appellant never asserted a post-trial speedy review right
    or protested the length of delay in his case.   While the demand
    rule is not conclusive in the speedy trial or appellate review
    context, it is extremely important in evaluating the length and
    reason for the delay as well as whether there is any personal
    prejudice.   Barker, 
    407 U.S. at 531
    .   A complaint or protest
    would have at least indicated to the appellate court that
    Appellant was dissatisfied with the pace of his appeal.   The
    determination of whether an appellant asserts his right to a
    speedy post-trial review is “entitled to strong evidentiary
    weight in determining whether [an appellant] is being deprived
    of the right.”   
    Id. at 532-33
    .   The “failure to assert the right
    will make it difficult for [an appellant] to prove he was denied
    a speedy trial” review.   
    Id. at 532
    .
    This factor becomes more significant when there are a
    number of options open to counsel and an appellant to complain
    about the delay.   These options could ensure expediting the
    appeal to avoid any possible violation of post-trial delay.      In
    this case, there is no indication that Appellant made efforts to
    prod appellate defense counsel or anyone else to expedite his
    appeal.   Yet the majority shifts the responsibility for the
    entire period of delay onto the Government in spite of the
    10
    United States v. Moreno, No. 04-0698/MC
    requests for delay by Appellant through his appellate defense
    counsel.
    What is the Government to do?    Oppose defense requests for
    delay because the delay will be attributed to it?   Should the
    Courts of Criminal Appeals deny defense requests for delays for
    fear the delays will be attributed to it or the Government?
    What is next?   Will we begin to see appellate defense counsel
    raise the issue that an appellant was denied an opportunity to
    present his case on appeal because his reasonable request for a
    delay for filing his brief was denied?
    Although the Supreme Court rejected the rule that a
    “defendant who fails to demand a speedy trial forever waives his
    right,” the Court did state that “[t]his does not mean, however,
    that the defendant has no responsibility to assert his right.”
    Barker, 
    407 U.S. at 528
    .    The principle set out in Barker is
    that an appellant’s “assertion of or failure to assert his right
    to a speedy trial is one of the factors to be considered in an
    inquiry into the deprivation of the [speedy trial] right.”     
    Id. at 529
    .    The application of this formula allows the courts
    judicial discretion based on the circumstances as opposed to the
    application of some rigid rule that does not provide for
    consideration of the circumstances of the case.   In its opinion,
    the majority in effect overlooks any application of this factor
    to the facts of this case even though it is a factor in the
    11
    United States v. Moreno, No. 04-0698/MC
    Barker analysis.    Thus, I disagree with the majority and the
    weight, or lack thereof, they give to the absence of an
    assertion of the right to a speedy post-trial review.
    4.   Prejudice to Appellant
    With respect to assessing the fourth factor -- prejudice --
    the Supreme Court provided further guidance.   Prejudice should
    be evaluated “in the light of the interests of defendants which
    the speedy trial right was designed to protect.”   Barker, 
    407 U.S. at 532
    .   The interests are:
    (i) to prevent oppressive pretrial incarceration; (ii)
    to minimize anxiety and concern of the accused; and
    (iii) to limit the possibility that the defense will
    be impaired. Of these, the most serious is the last,
    because the inability of a defendant adequately to
    prepare his case skews the fairness of the entire
    system.
    
    Id.
    Lower courts applying the Barker test to appellate delay
    have adapted the prejudice factors to fit the circumstances of
    convicted parties on appeal:   “(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.”   Harris, 
    15 F.3d at 1559
     (quoting Rheuark, 
    628 F.2d at
    303 n.8).
    12
    United States v. Moreno, No. 04-0698/MC
    a.   Prevention of Oppressive Incarceration Pending Appeal
    Generally, incarceration will be considered “oppressive” if
    an appellant is confined while the appeal is pending and the
    substantive appeal is meritorious.    See Cody v. Henderson, 
    936 F.2d 715
    , 719-21 (2d Cir. 1991).     In this case, the meritorious
    issue addressed by the Court concerns the denial of a challenge
    for cause against a court member.    There were no successful
    issues regarding the sufficiency of evidence or the
    admissibility of evidence.   Theoretically, the Government will
    be able to use the same evidence used at the original trial to
    retry Appellant.   There is no way, based on the facts and
    evidence in this case, to conclude that Appellant’s
    incarceration was oppressive or out of the ordinary for a person
    convicted of an offense and sentenced to confinement.
    Furthermore, Appellant was sentenced to six years of
    confinement.   The majority, without any documentary evidence on
    which to rely, theorizes that Appellant was released from
    confinement after about four years of confinement.    Assuming the
    majority is correct, apparently the delay in the appeal of
    Appellant’s case did not affect his ability to obtain a minimum
    release date and to be released from confinement when that date
    was reached.   Without knowing the outcome of the retrial, it is
    only supposition as to whether Appellant’s incarceration was
    excessive or oppressive.
    13
    United States v. Moreno, No. 04-0698/MC
    b.   Minimization of Anxiety and Concern While Awaiting
    Outcome of Appeal
    I agree with the majority that “the appropriate test for
    the military justice system is to require an appellant to show
    particularized anxiety or concern that is distinguishable from
    the normal anxiety experienced by prisoners awaiting an
    appellate decision” and that the anxiety is not “dependent upon
    whether his substantive appeal is ultimately successful.” I
    disagree with the majority’s conclusion that Appellant’s anxiety
    was “distinguishable” because he had to register as a sex
    offender upon his early release from confinement.   This
    consequence of Appellant’s conviction has been deemed a
    collateral consequence of a conviction by numerous courts and
    will not generally merit relief in those situations where an
    appellant proceeds to trial without knowledge of such a
    consequence.   See State v. Young, 
    542 P.2d 20
     (Ariz. 1975); Ray
    v. State, 
    982 P.2d 931
     (Idaho 1999); State v. Schneider, 
    640 N.W.2d 8
     (Neb. 2002); Davenport v. State, 
    2000 ND 218
    , 
    620 N.W.2d 164
    ; Mitschke v. State, 
    129 S.W.3d 130
     (Tex. Crim. App.
    2004); State v. Bollig, 
    2000 WI 6
    , 
    232 Wis. 2d 561
    , 
    605 N.W.2d 199
    ; State v. Ward, 
    869 P.2d 1062
     (Wash. 1994); Johnson v.
    State, 
    922 P.2d 1384
     (Wyo. 1996).
    How the majority can now classify a sex offender
    registration requirement as “distinguishable” anxiety is beyond
    14
    United States v. Moreno, No. 04-0698/MC
    comprehension.   The record contains no information concerning
    the requirements for sexual offender registration in the state
    of California where Appellant resides, and what, if anything,
    will happen regarding the registration requirement for Appellant
    after the findings in his case are set aside and he is awaiting
    a new trial.   The majority simply latches on to the assertion in
    Appellant’s brief that he had to register as a sex offender upon
    his release from confinement without any proof of registration
    or what the effects of setting aside the conviction and retrying
    Appellant would have on that requirement.
    c.   Limitation of Appellant’s Grounds for Appeal or
    Defenses at Retrial
    The most serious factor in analyzing the prejudice factor
    is evaluating the ability of an appellant to assert:   (i) his or
    her arguments on appeal; and (ii) his or her defense in the
    event of retrial or resentencing.    See Barker, 
    407 U.S. at 532
    ;
    Harris, 
    15 F.3d at 1563
    .   See also Smith, 
    94 F.3d at 211
    (question is whether the delayed ruling by the appellate court
    actually preserved any arguments the appellant would have
    asserted on retrial or resentencing and whether Appellant’s
    ability to assert these arguments was affected).
    15
    United States v. Moreno, No. 04-0698/MC
    In this case, Appellant failed to establish any harm to his
    ability to present a defense or retry his case.2   The substantive
    issue raised by Appellant related to the military judge’s denial
    of a challenge for cause against a panel member.   It was a
    technical issue and did not relate to the presentation of the
    facts, the evidence, or defenses at trial.   There is no danger
    to any of his potential arguments or ability to present a
    defense.    At a retrial, the court member issue in this case will
    be cured.
    As to prejudice generally, one must recognize the
    difference between pretrial delay prejudice and post-trial delay
    prejudice.   Pretrial delay prejudice involves planning a defense
    at trial with live witnesses who may not have committed their
    testimony either to an oral or written form.   “When a full trial
    has occurred, even if there is an inordinate post-trial delay,
    the record of trial is preserved” and an appellant must make
    some showing of prejudice to establish a due process violation.
    Latimore v. Spencer, 
    994 F. Supp. 60
    , 71 (D. Mass. 1998).     In
    post-trial delay cases, there has been a conviction.   Thus, the
    same anxiety that might occur in a pretrial scenario does not
    occur to the same extent in the post-trial scenario because the
    defendant is no longer cloaked with the presumption of
    2
    The majority acknowledges that Appellant failed to “identify
    any specific harm that he would encounter at a rehearing” and
    that he “failed to establish prejudice under this sub-factor.”
    16
    United States v. Moreno, No. 04-0698/MC
    innocence.    Likewise, the concern that pretrial delay may affect
    the defendant’s ability to mount a defense because memories will
    dim or witnesses will become unavailable is not a concern with
    post-trial delay.
    In the post-trial scenario, the defendant has been
    convicted after a full-fledged adversary proceeding and is given
    a complete verbatim copy of the record, together with appointed
    counsel and a right to appeal the case when the sentence extends
    to one year of confinement and/or a punitive discharge.
    Appellate review of military cases is much broader than in the
    civilian sector because the intermediate civilian appellate
    court has no factfinding capability.   This procedure is
    essential because it allows defendants to have a fair chance to
    present persuasive arguments during the appellate process.
    Appellate defense counsel have at their disposal the means
    of identifying any prejudice that might otherwise arise from the
    passage of time.    If witnesses are not available, their former
    testimony can be introduced under Military Rule of Evidence
    (M.R.E.) 804(b)(1) and M.R.E. 801(d)(1)(A) and (B) or M.R.E.
    803(5).   Likewise, if memories fade, they can be refreshed under
    M.R.E. 612.   If there is a change in testimony, the parties have
    a right to impeach the witness.    M.R.E. 613.   This verbatim
    record obviates most of the problems of retrials.    Absent a
    showing at a United States v. DuBay, 
    17 C.M.A. 147
    , 
    37 C.M.R. 17
    United States v. Moreno, No. 04-0698/MC
    411 (1967), or motion hearing that Appellant is unable to
    present a defense, or collect exculpatory evidence as a result
    of the excessive delay, the charges should not be dismissed.
    See also State v. Hall, 
    487 A.2d 166
     (Vt. 1984) (defendant has
    burden of showing substantial prejudice because of the delay).
    The most problematic aspect of the majority’s opinion is
    its application of the Barker prejudice factor.     Appellant and
    the majority in this case merely speculate as to the potential
    harm.    Rather than placing the burden on Appellant to show
    prejudice, the majority is intent on placing the responsibility
    for the delay on the Courts of Criminal Appeals.    According to
    the holding of the majority, the Courts of Criminal Appeals have
    the responsibility for “the timely management and disposition of
    cases” regardless of whether an appellant in fact suffers
    prejudice as a result of post-trial delay, whether an appellant
    makes efforts to foster the delay, or does nothing to assert his
    right to a speedy review.    The prejudice factor is the most
    critical factor in evaluating whether Appellant’s due process
    right to a speedy appellate review has been violated, yet the
    majority gives this factor short shrift.    I would conclude that
    Appellant has not met his burden to demonstrate actual prejudice
    by this post-trial delay.
    18
    United States v. Moreno, No. 04-0698/MC
    III. The Reality of the Application of
    the Majority’s Specified Time Period
    The majority does not adopt a “presumption of prejudice”
    but a prospective “presumption of unreasonable delay” if certain
    timelines are not met.    The majority sets forth a “presumption
    of unreasonable delay” to be triggered by the following events:
    (1) No action by convening authority within “120 days of
    the completion of trial”;
    (2) Case not docketed with the service Court of Criminal
    Appeals within “thirty days” of convening authority’s action;
    and
    (3) No decision by the service Court of Criminal Appeals
    rendered within “eighteen months of docketing the case.”
    Once the timeline is violated, the “presumption of
    unreasonable delay” will exist, which will satisfy the first
    Barker factor regardless of whether an appellant is sentenced to
    or serving confinement.   The timeline violation will then
    trigger the Barker four-factor analysis.    Any delay beyond the
    time periods established must be “justifiable, case-specific
    delays supported by the circumstances of that case and not
    delays based upon administrative matters, manpower constraints
    or the press of other cases.”
    The majority stands presumptions on their heads, failing to
    appreciate which party has the privileged information.     By
    19
    United States v. Moreno, No. 04-0698/MC
    shifting the responsibility to the Government rather than
    requiring an appellant to demonstrate actual prejudice, the
    Court overlooks that the evidence of prejudice is peculiarly
    within an appellant’s control.    Raising denial of due process
    because of appellate delay does not constitute the waiver of the
    attorney-client privilege and therefore puts the Government in a
    very awkward position.    This is why federal and state courts
    have placed the burden on the appellant to show actual
    prejudice.3
    The majority has established a nonexclusive list of
    potential remedies for those situations where a reviewing court
    determines there is a denial of speedy post-trial or appellate
    review.    The remedy is supposed to be tailored to the
    circumstances of the case:
    The nature of that relief will depend on the
    circumstances of the case, the relief requested, and
    may include, but is not limited to: (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;
    3
    The Georgia Supreme Court recently concluded:
    [P]rejudice necessary to establish a due process
    violation based on post-conviction direct appeal delay
    is prejudice to the ability of the defendant to assert
    his arguments on appeal and, should it be established
    that the appeal was prejudiced, whether the delay
    prejudiced the defendant’s defenses in the event of
    retrial or resentencing.
    Chatman v. Mancill, 
    626 S.E.2d 102
    , 109-10 (Ga. 2006). See
    also Lopez v. State, 
    769 P.2d 1276
    , 1288-89 (Nev. 1989).
    20
    United States v. Moreno, No. 04-0698/MC
    (d) set aside of an 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.
    Clearly this range of meaningful options to remedy the
    denial of speedy post-trial processing provides
    reviewing authorities and courts with the flexibility
    necessary to appropriately address these situations on
    a case-by-case basis.
    Certainly, it is a much more cumbersome and time-consuming
    process to try a case, transcribe a record, have counsel,4 the
    military judge, the staff judge advocate, and the convening
    authority review the records of trial, have the convening
    authority take action on the case, and then, make the requisite
    number of copies of the record and exhibits to forward to the
    Courts of Criminal Appeals than it is for an appellate court to
    review a completed record and consider and decide the issues
    raised.   Yet, the majority has set out an arbitrary timeline for
    the post-trial processing of a case in the field without regard
    to the complications and complexity of the case and the
    realities of today’s mobile, deployed forces.
    4
    Pursuant to R.C.M. 1105(c)(1), an accused has ten days upon
    service of the authenticated record of trial or the staff judge
    advocate’s recommendation to submit matters for consideration.
    This time period may be extended for an additional twenty-day
    period. If the staff judge advocate’s addendum contains new
    matter, then the accused is entitled to another ten days to
    respond. The process of post-trial submissions by the defense
    generally will consume at least thirty to forty days of the 120-
    day time limit set by the majority.
    21
    United States v. Moreno, No. 04-0698/MC
    The majority, who does not suffer the same complications
    and complexities of those in the field, and who receives the
    benefit of receiving a completed, typed record to review, has
    provided that those individuals in the field should have
    essentially five months to get a completed record to the service
    courts for docketing.    Then, the majority provides the Courts of
    Criminal Appeals with eighteen months from docketing to
    completion of review.    This Court has not always followed its
    own standard of completing review within eighteen months.   I
    suggest that if we are going to set up rules, the rules might
    apply to ourselves as well.
    The Court’s master docket reveals that as of February 7,
    2006, there were three cases over 1,000 days old, which is more
    than the eighteen-month standard set out by the majority for the
    Courts of Criminal Appeals to issue opinions.   There were also
    more than thirty cases in which the petition had been granted
    and no action had been taken for over 400 days.   Additionally,
    there were more than twenty-four cases where petitions had been
    pending for over eighteen months in which no action had been
    taken on the petition.
    My purpose in mentioning these delays is not to be critical
    of this Court, but rather to underscore that there are valid
    reasons for the length of time it takes to conduct a thorough
    appellate review of a case whether it be before this Court or a
    22
    United States v. Moreno, No. 04-0698/MC
    Court of Criminal Appeals.5    Many cases are very complex and case
    load commitments of counsel are often legitimate reasons to seek
    enlargements of time in order to represent one’s client
    adequately and ethically.     Let me be very clear that I do not
    condone many of the delays we have encountered in the military
    justice system, including the delay in this case.    I share the
    concerns of the majority and urge the appropriate legislative
    and executive branch officials to take all necessary steps to
    address resource and other issues that impact on the efficient
    and timely processing of cases for appellate review.    I do not,
    however, believe justice is served by overstepping our judicial
    role and establishing timeline rules, albeit cloaked in the
    guise of presumptions, for the post-trial processing of cases.
    The majority acknowledges in its opinion that timelines in
    the past have not worked, but yet they plug ahead establishing
    such rules.6   We are not a rulemaking body and, if we were, we
    should not adopt a bright-line rule unless it would approximate
    5
    Each case must be evaluated for “unreasonable” post-trial delay
    based on the facts and circumstances of the case and not some
    arbitrary timeline imposed by an appellate court.
    6
    See United States v. Burton, 
    21 C.M.A. 112
    , 118, 
    44 C.M.R. 166
    ,
    172 (1971) (establishing a three-month rule for a pretrial
    delay), modified by United States v. Driver, 
    23 C.M.A. 243
    , 246,
    
    49 C.M.R. 376
    , 379 (1974)(explicitly changing the rule from
    “three months” to “ninety days”); Dunlap v. Convening Authority,
    
    23 C.M.A. 135
    , 138, 
    48 C.M.R. 751
    , 754 (1974) (establishing a
    ninety-day rule for a post-trial delay). But see United States
    v. Kossman, 
    38 M.J. 258
    , 261 (C.M.A. 1993) (overruling Burton
    and Driver); United States v. Banks, 
    7 M.J. 92
    , 93-94 (C.M.A.
    1979) (overruling Dunlap).
    23
    United States v. Moreno, No. 04-0698/MC
    a correct result.   These rules will not solve the problem and
    will cause considerable anxiety among those who have to do the
    yeoman’s work of getting the record to the appellate courts.       I
    also believe that, in the haste to meet these arbitrary
    timelines, we will see more errors or mistakes in the post-trial
    processing and in the appellate review of cases, poorly
    constructed records of trials, and even the trampling of the
    rights of the accused.   We have already seen situations where
    appellate defense counsel, in an attempt to move cases along,
    file pleadings before giving their clients a reasonable
    opportunity to raise issues with them and the appellate courts.
    In evaluating what remedy it should grant in regard to the
    lengthy post-trial delay in this case, the majority looks at
    potential remedies without considering the seriousness or the
    nature of the offenses involved.     I respectfully dissent from
    the majority’s conclusion of a violation of Appellant’s right to
    a speedy post-trial review absent a showing of actual prejudice
    to the findings or sentence by Appellant.    It is not enough for
    an appellant to claim anxiety as to the outcome of the appeal.
    See People v. Missouri, 
    299 N.W.2d 346
    , 352-53 (Mich. Ct. App.
    1980).   Even in the pretrial scenario, it has been held that a
    ten-year delay does not create a presumption of prejudice.    See,
    24
    United States v. Moreno, No. 04-0698/MC
    e.g., United States v. Mohawk, 
    20 F.3d 1480
    , 1488 (9th Cir.
    1994).    There must be a showing of actual prejudice.7
    IV.   Conclusion
    This Court is not a rulemaking body.      Attempts at rulemaking
    in the past have proven to be unworkable, and we should not
    venture into that area again.    The Court should leave the
    rulemaking function where it belongs -- to the executive and
    legislative branches.    If the facts of this case establish a
    violation of the Appellant’s right to a speedy post-trial review
    upon applying the Barker test, then so be it.      But, this Court
    should not create rules that exceed the bounds of the separation
    of powers doctrine, and that will not accomplish the desired
    result.
    7
    See, e.g., Elcock v. Henderson, 
    28 F.3d 276
    , 279 (2d Cir. 1994)
    (absent showing actual prejudice, no violation of due process
    for eight-year delay between conviction and appeal); Heiser v.
    Ryan, 
    15 F.3d 299
    , 303-04 (3d Cir. 1994) (absent actual
    prejudice thirteen-year delay was not a violation of due
    process); United States v. Alston, 
    412 A.2d 351
    , 361-62 (D.C.
    1980) (must show actual prejudice); State v. Chapple, 
    660 P.2d 1208
     (Ariz. 1983) (en banc) (must show actual prejudice).
    25
    

Document Info

Docket Number: 04-0698-MC

Citation Numbers: 63 M.J. 129, 2006 CAAF LEXIS 632, 2006 WL 1311865

Judges: Erdmann, Gierke, Ef-Fron, Baker, Crawford

Filed Date: 5/11/2006

Precedential Status: Precedential

Modified Date: 11/9/2024

Authorities (42)

Toohey v. United States , 2004 CAAF LEXIS 654 ( 2004 )

United States v. Bodkins , 2004 CAAF LEXIS 1171 ( 2004 )

United States v. James , 2005 CAAF LEXIS 526 ( 2005 )

State v. Hall , 145 Vt. 299 ( 1984 )

United States v. Mara , 93 S. Ct. 774 ( 1973 )

Chappell v. Wallace , 103 S. Ct. 2362 ( 1983 )

Lopez v. State , 105 Nev. 68 ( 1989 )

Anthony Jerome Harris v. Ron Champion, Warden Susan Brimmer ... , 938 F.2d 1062 ( 1991 )

United States v. Alston , 1980 D.C. App. LEXIS 231 ( 1980 )

People v. Missouri , 100 Mich. App. 310 ( 1980 )

United States v. Rodriguez , 2004 CAAF LEXIS 839 ( 2004 )

Feres v. United States , 71 S. Ct. 153 ( 1950 )

Mapp v. Ohio , 81 S. Ct. 1684 ( 1961 )

County of Sacramento v. Lewis , 118 S. Ct. 1708 ( 1998 )

Ray v. State , 133 Idaho 96 ( 1999 )

Wayne Paul Burkett, K-8595 v. Thomas A. Fulcomer, ... , 951 F.2d 1431 ( 1991 )

United States v. Roderick B. Kimmons, Also Known as Skins , 917 F.2d 1011 ( 1990 )

William Cody v. Robert J. Henderson, Warden, Auburn ... , 936 F.2d 715 ( 1991 )

anthony-jerome-harris-v-ron-champion-warden-attorney-general-steve , 48 F.3d 1127 ( 1995 )

Yourdon v. Kelly , 769 F. Supp. 112 ( 1991 )

View All Authorities »