United States v. PRIVATE E21 LARRY M. FOSTER

CORRECTED COPY
UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
MULLIGAN, HERRING, and BURTON
Appellate Military Judges
UNITED STATES, Appellee
v.
PRIVATE E2 1 LARRY M. FOSTER
United States Army, Appellant
ARMY 20130799
Headquarters, 7th Infantry Division
Stefan R. Wolfe, David L. Conn, and Jeffrey D. Lippert, Military Judges
Lieutenant Colonel Michael S. Devine, Staff Judge Advocate (pretrial)
Colonel Robert F. Resnick, Staff Judge Advocate (post-trial)
For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Major M. Patrick
Gordon, JA (on brief).
For Appellee: Colonel Mark H. Sydenham, JA; Major John K. Choike, JA; Captain
Scott L. Goble, JA (on brief).
21 December 2015
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SUMMARY DISPOSITION
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Per Curiam:
An officer panel, sitting as a general court-martial, convicted appellant,
contrary to his pleas, of absence without leave, in violation of Article 86, Uniform
Code of Military Justice, 10 U.S.C. § 886 (2012) [hereinafter UCMJ]. 2 The panel
sentenced appellant to a bad-conduct discharge, confinement for twelve months,
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Corrected.
2
Appellant voluntarily and willfully absented himself from his unit and was not
present in court. Therefore appellant waived his right to be present for his court-
martial, and the court-marital proceeded against appellant in absentia. Pursuant to
Rule for Court-Martial [hereinafter R.C.M.] 910(b), the military judge entered a plea
of not guilty on behalf of appellant.
FOSTER—ARMY 20130799
forfeiture of all pay and allowances, and reduction to Private E-1. The convening
authority approved the findings and sentence and granted appellant three days of
confinement credit.
This case is before us pursuant to Article 66, UCMJ. Appellant raises one
assignment of error, which merits discussion and relief. The matters personally
raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982), are without merit. 3
BACKGROUND
Appellant’s court-martial concluded on 13 September 2013. Trial counsel and
defense counsel received the record of trial for review on 28 July 2014. The defense
counsel completed review on 15 August 2014. The military judge authenticated the
record of trial on 9 September 2014. 4 The staff judge advocate signed the
recommendation (SJAR) on 16 September 2014 and served it in conjunction with the
authenticated record of trial on defense counsel on the same day. On 17 September
2014, the government mailed the authenticated record of trial and SJAR to the last
known address on record for appellant. The government dropped appellant from the
rolls prior to the completion of post-trial appellate rights and no post-trial matters
were submitted. The staff judge advocate signed the addendum on 30 January
2015. The government served the addendum on appellant’s trial defense counsel
and the regional trial defense counsel at Joint Base Lewis-McChord on 4 February
2015. Appellant’s trial defense counsel separated from the Army upon completion of
his obligated service. No other attorney was detailed to this case. Post-trial matters
were still not submitted on behalf of appellant. The convening authority took action
on 23 February 2015. This court received the record of trial on 2 March 2015.
LAW AND DISCUSSION
In United States v. Moreno, our superior court established timeliness
standards for various stages of the post-trial and appellate process. 63 M.J. 129,
142-43 (C.A.A.F. 2006). The Moreno standard applicable in this case is that
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Law enforcement apprehended appellant prior to appellate review by this court.
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Three military judges were required to authenticate the record. This date reflects
the final authentication.
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FOSTER—ARMY 20130799
a convening authority should take action within 120 days after the trial is
completed. 5 Id. at 142. Failure to satisfy this standard creates a “presumption of
unreasonable delay,” prompting this court to apply and balance the four factors set
out in Barker v. Wingo, 407 U.S. 514, 530 (1972), in order to determine whether
appellant’s due process rights were violated by the delays. See Moreno, 63 M.J. at
136.
The post-trial processing time in appellant’s case is 528 days from sentence to
action. This delay is presumptively unreasonable. Id. at 142. In the face of this
lengthy delay, our next step is to apply and balance the four factors set out in
Barker, in order to determine whether appellant’s due process rights were violated.
Id. at 136.
The government served defense counsel with the record of trial for review 318
days after the conclusion of appellant’s trial. Rule for Courts-Martial 1106(f)(5)
automatically grants defense ten days to submit post-trial matters. Therefore, there
is no delay attributable to the defense, and the processing time from trial to initial
action remains 528 days. See United States v. Garman, 59 M.J. 677 (Army Ct. Crim.
App. 2003). The delay from trial to initial action is 408 days more than where this
court presumes unreasonable delay in post-trial processing between sentence and
action. See Moreno, 63 M.J. at 142. This facially unreasonable delay triggers our
review of the remaining Moreno factors: reasons for the delay; timely assertion of
the right to speedy post-trial review; and prejudice. Id. at 135-36.
As to the second Moreno factor, the chief of justice explained “despite being
reactivated on 1 October 2012 with only skeleton staffing levels, the 7th Infantry
Division was the busiest single [General Court-Martial Convening Authority] in the
Army that did not also cover a garrison population during the 2013 and 2014 fiscal
years. This caused a large backlog during the 2014 and 2015 fiscal years. The 7th
Infantry Division was heavily reliant upon I Corps OSJA for court-reporting and
transcription services. This caused increased transcription times for all 7th Infantry
Division cases.” We are cognizant of the fact that this case caused additional
complications as the appellant was tried in absentia and appellant’s defense counsel
separated from the Army; however the bulk of the delay was for transcription. Our
superior court has held that “personnel and administrative issues . . . are not
legitimate reasons justifying otherwise unreasonable post-trial delay.” United States
v. Arriaga, 70 M.J. 51, 57 (C.A.A.F. 2011). The reasons for the delay weigh in
favor of appellant.
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Two other standards—timeliness of docketing with this court after initial action
and timeliness of appellate review before this court—are not relevant in appellant’s
case. Moreno, 63 M.J. at 142-43.
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FOSTER—ARMY 20130799
The third Moreno factor weighs in favor of the government, as the appellant
did not assert his right to speedy post-trial processing.
Turning to the fourth Moreno factor, there is no prejudice demonstrated.
Although we find no due process violation after consideration of the Moreno factors,
we review the appropriateness of the sentence in light of the unjustified dilatory
post-trial processing. UCMJ art. 66(c). See Moreno, 63 M.J. at 138-42; United
States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006); United States v. Tardif, 57 M.J.
219, 224 (C.A.A.F. 2002). After consideration of the entire record, we conclude
appellant’s case warrants relief in the form of a thirty-day reduction in confinement
under Article 66(c), UCMJ, for the unreasonable post-trial delay. See Tardif,
57 M.J. at 224.
CONCLUSION
The findings of guilty are AFFIRMED. After considering the entire record,
we AFFIRM only so much of the sentence as provides for a bad-conduct discharge,
confinement for eleven months, total forfeiture of all pay and allowances, and
reduction to the grade of E-1. All rights, privileges, and property, of which
appellant has been deprived by virtue of that portion of the sentence set aside by this
decision are ordered restored. See UCMJ arts. 58b(c) and 75(a).
FOR THE COURT:
FOR THE COURT:
JOHN P. TAITT
JOHN Clerk
Deputy P. TAITT
of Court
Deputy Clerk of Court
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