CAAF will hear oral argument in the case of United States v. Lee, No. 07-0725/MC (CAAFlog case page), on Tuesday, December 17, 2013. The court will consider a single issue:

 Whether the Court of Criminal Appeals erred in finding no Due Process violation where 2,500 days elapsed between sentencing and removal of appellant’s name from the Texas sex offender registry.

The facts of this case are likely well known to most regular readers of this site; however, I’ll provide a refresher/consolidated summary.  Appellant was convicted in 2005 by a military judge sitting as a general court-martial, after mixed pleas, of three specifications of burglary, one specification of conduct unbecoming an officer and a gentleman, and five specifications of indecent assault in violation of Articles 129, 133 and 134, UCMJ, respectively. He was sentenced to confinement for three years, forfeiture of all pay and allowances, and a dismissal.

The underlying incident for these convictions is largely irrelevant to the resolution of the granted issue. The basics are that the Appellant, a Captain at the time, is alleged to have gotten drunk with a group of enlisted Marines while on an educational trip to Ireland with them and subsequently sexually assaulted five different enlisted Marines. The salient point there is that the Article 134, UCMJ convictions triggered sex offender registration.

At his first trial, the Appellant was represented by a civilian defense counsel and detailed military counsel. Apparently, unbeknownst to the Appellant, his detailed defense counsel was in the process of transitioning to the trial shop while he was still representing the Appellant. By the time of Appellant’s trial, his detailed defense counsel was prosecuting other cases, and the prosecutor in the Appellant’s case was the reporting senior for the Appellant’s detailed defense counsel. This situation did not become apparent to the Appellant until after his conviction.

Appellant raised this conflict of interest issue during his first appeal to the NMCCA. In June 2007, the NMCCA issued a ruling finding no actual conflict of interest. In July 2007, the Appellant was released from prison and registered as a sex offender in the state of Texas. CAAF granted review of the issue, and in June 2008, set aside the finding by the NMCCA and remanded the case for a Dubay hearing.

Once the case was returned to the trial court, things became a bit of a circus, although hilarity did not ensue. It took from July 2008 to April 2011 to square away the Dubay hearings and to figure out what the Appellant knew about the conflict and what impact it may have had on his defense.  This process included a disqualified trial judge, several trips to NMCCA and a total of three Dubay hearings.

In July 2011, the NMCCA found that there was no evidence that the conflict of interest had an impact on the Appellant’s case, but set aside the findings and sentence as “needed prophylaxis” in response to the failure of “the system of identifying and resolving professional conflicts of interests”. United States v. Lee, 70 M.J. 535 (CAAF 2011). Nevertheless, despite the fact that the Appellant’s convictions were set aside, it took the Government six months, until January 2012, to notify the Texas sex offender registry that the Appellant should be removed from its rolls. He was not removed until Feburary 2012

After the conviction was set aside and returned to the trial level, the convening authority entered into a pre-trial agreement with the Appellant, where the Appellant pled guilty to two specifications of Article 133, UCMJ. At the guilty plea in March 2012, the Appellant raised two due process claims; first, with regard to the general post-trial process and second, with regard to the Government’s failure to notify the state of Texas that he was no longer a convicted sex offender.

The trial judge denied the Appellant’s request for appropriate relief related to delay in the post-trial processing of his case. However, the trial judge found the delay in removing the Appellant from the sex offender registry was prejudicial and awarded him 123 days of confinement credit prior to sentencing. The Appellant also received 799 days of Allen credit for the time he served on his previous sentence. The military judge then sentenced the Appellant to nine months confinement, forfeiture of all pay and allowances for nine months, and a reprimand.

As the Appellant observes in his brief, after the new sentence he still has 652 days of credit from which he is currently deriving no benefit. App. Br. at 12. As an aside, it seems like this is an untapped area for some motivated entrepreneur. I envision some sort of trading exchange where pre-adjudication accuseds can purchase credit from post-trial appellants, thus giving those appellants some benefit for this unused credit. You know, sort of like the military justice version of Bitcoin. But I digress. The Appellant again raised the two due process issues at the NMCCA, who issued a single paragraph opinion in February 2013 denying the Appellant relief and stating he had “been afforded appropriate and continuing due process…resulting in meaningful relief from error.” That brings us about up to the present day.

There are two main battlegrounds under the granted issue.  The first battleground is the threshold question of whether the Appellant has waived any error related to earlier post-trial delay by his second guilty plea. Gov’t Br. at 8. The key to determining this issue is deciding what flavor of waiver we’re dealing with; whether it is the “regular” doctrine of waiver as normally applied (or not applied) to post-trial due process violations, or speedy trial waiver.  Govt’ Br. at 10.

As the Government explains, an unconditional guilty plea waives all non-jurisdictional defects. Gov’t Br. at 8-9. With a limited precedent-based exception for Article 10, UCMJ violations, speedy trial violations are non-jurisdictional. Gov’t Br. at 9-10. In contrast, a due process claim for delay in post-trial processing is not waived, even when an appellant fails to complain about it. Gov’t Br. at 10. But, how do we analyze a case where there is post-trial delay followed by a new hearing with a guilty plea? Should we analyze that post-trial delay as now being akin to a speedy trial violation or is it still a post-trial due process violation?

The Government makes a compelling case for why the CAAF should interpret this situation as similar to a speedy trial violation:

 The nature of Appellant’s claim is similar, if not identical, to a Sixth Amendment speedy trial claim that would be waived by an unconditional guilty plea. At trial, Appellant did not assert the right of a convicted service member to timely review of his conviction——his conviction had already been reviewed and overturned. Rather, he claimed that the Government should not be able to proceed with the rehearing because of delay that had occurred years earlier. Courts hold that this interest is identical to the one presented by a speedy trial motion. After a conviction is overturned, claims that the rehearing may not proceed because of earlier delay in the first appeal usually implicate the Sixth Amendment speedy trial right “in its most pristine sense.” Rheuark v. Shaw, 628 F.2d 297, 303 n.8 (5th Cir. 1980). If Appellant had defense witnesses or evidence become unavailable, and had been unable to mount a defense at the retrial, any speedy trial claim based on those facts would be waived by the later guilty plea. Tippit, 65 M.J. at 75. The result should not be different because Appellant has not even alleged that type of prejudice.

Gov’t Br. at 11-12. The government then goes for the coup de grace:

 But regardless of whether Appellant’s claim is a due process or speedy trial issue, the label attached to the violation “makes little substantive difference.” Burkett v. Fulcomer, 951 F.2d 1431, 1445-1446 (3d Cir. 1991). “[A] guilty plea waives all non-jurisdictional defects occurring prior to the time of the plea, including violations of the defendant’s rights to a speedy trial and due process.” Mizgala, 61 M.J. at 124 (quoting Tiemens v. United States, 724 F.2d 928, 929 (11th Cir. 1984)) (emphasis added).

Gov’t Br. at 12.

In reply, the Appellant argues that the Government is reading too broadly United States v. Bradley 68 M.J. 279 (CAAF 2010), which the Government cites for the proposition that an unconditional plea of guilt functions as a waiver for all non-jurisdictional errors. The Appellant argues that:

 The Government treats the first line of part II of Bradley as support for a new rule of “guilty plea waiver.” In doing so, it ignores the second sentence, which confines the waiver rule to those issues “relat[ing] to the factual issue of guilt of the offense(s) to which the plea was made.” This critical phrase materially narrows the broader one preceding it.

App. Reply at 1-2. This is an interesting point. One could read these lines from Bradley the way the Appellant does, with the second line materially limiting the first. But, the second line really only seems to be reciting RCM 910(j). See Bradley 68 M.J. at 281. The CAAF seems to be fairly clear about their view on the guilty plea waiver issue where they say later in Bradley that:

 While the waiver doctrine is not without limits, those limits are narrow and relate to situations in which, on its face, the prosecution may not constitutionally be maintained. United States v. Broce, 488 U.S. 563, 574-76, 109 S. Ct. 757, 102 L. Ed. 2d 927 (1989) (double jeopardy); Menna v. New York, 423 U.S. 61, 61-63, 96 S. Ct. 241, 46 L. Ed. 2d 195 (1975) (same). This is not such a situation, and the waiver doctrine therefore applies.

Bradley, 68 M.J. at 282. It’s worth noting as well that the issue being decided in Bradley was a claim by the appellant related to disqualification of trial counsel. Not exactly a “factual issue of guilt.” The Appellant’s best way forward to get past the threshold question of waiver appears to be honing in on why “the prosecution may not constitutionally be maintained.” And, the Appellant is not without arguments in that vein, as that topic touches on several key elements of the argument on the second main battleground.

The second main battleground is the crux of the issue, whether the Appellant was denied the due process right to a speedy post-trial review and appeal.  Both sides conduct a thorough analysis of the case using the four factors from Barker v. Wingo, 407 U.S. 514, 530 (1972):

 Those factors are: (1) the length of the delay; (2) the reasons for the delay; (3 )the appellant’s assertion of the right to timely review and appeal; and (4) prejudice.

The Government wisely and readily concedes that the first factor goes to the Appellant, as the delay in this case is virtually identical to the facially unreasonable delay in United States v. Toohey, 63 M.J. 100 (CAAF 2004). Gov’t Br. at 16. Needless to say, the Appellant does not disagree. Because the delay is facially unreasonable, the entire analysis is triggered.

Regarding the second factor, the Appellant makes some compelling arguments for why the delay is the fault of the Government, complete with an extensive chart showing major case events and the number of days between events and the number of days since the original sentence was adjudged. App. Br. at 18-20. For his part, the Appellant takes responsibility for 117 days of delay, 76 of which were to allow the Appellant to prepare to return to active duty after his case was set aside.  App. Br. at 20. The Appellant points to the “dilatory and lackadaisical processing” of the case after each Dubay remand, noting the convening authorities only met one deadline out of three Dubay deadlines, resulting in additional delay of 217 days. App. Br. at 23.

The Appellant also goes after the trial and intermediate appellate courts, saying the “inordinate delay” in this case was a self-inflicted wound by these courts. Id. The primary points here are that the first Dubay trial judge’s failure to understand why he was disqualified and the intermediate appellate court’s failure to give clear direction on what it wanted from the Dubay hearing were the reason this case was stuck in Dubay purgatory for 1,114 days. App. Br. at 23-26. Regardless, none of this was the Appellant’s fault.

The Government’s primary argument as to why this factor does not weigh in favor of a due process violation is that there are few if any inexplicable periods of delay and that the case was continually moving. To this end, the Government includes a very compelling and informative color graphic comparing the progress of this case with the lack of progress in Toohey. The Government responds to most of the Appellant’s main points and notes that part of the reason this case bounced between Dubay hearings and the NMCCA was that the Appellant was alleging the first Dubay judge’s conflict constituted structural error. Gov’t Br. at 21. Because the resolution of this issue could decide the case, the Government arguess that it was not unreasonable for the NMCCA to address the issue.

Additionally, the Government notes that the reason the third Dubay hearing was necessary was due to the Appellant’s failure to testify in person at the second Dubay hearing. The Government sums up its argument saying:

 The first appeal involved three DuBay hearings, four oral arguments, five court orders or opinions, and “the generation of a record on appeal that dwarfs the original record of trial.” (J.A. 6.) This Court should review the Court of Criminal Appeals shepherding of the case through the process with reasonable deference,“recognizing that it involves the exercise of the Court of Criminal Appeals’ judicial decision-making authority.” Moreno, 63 M.J. at 137. Therefore, on the whole, the reason for the delay should not weigh in favor of a due process violation.

Gov’t Br. at 23.

The parties next address the third factor, assertion of right to speedy review. The Appellant cites five events that he claims are assertions of his right to speedy review, including two objections to scheduling delays, objections to Government motions for enlargement, a motion to suspend briefing and for a new Dubay, and his motion filed at his new hearing, after his first sentence was set aside. App. Br. at 27.

The Government responds by reminding the Appellant of his own delays throughout the post-trial process, including a delayed initial filing, three motions for enlargement, two requests for oral argument, a request for excludable delay to return to active duty, and a 22 day extension to submit clemency. Gov’t Br. at 26-27. The Government further argues that the best evidence of the Appellant’s failure to assert a right to timely review is the fact that he never raised this issue until after his case was set aside and remanded. Gov’t Br. at 25. The Government is concerned about the ramifications that allowing the Appellant to prevail in this case will have:

 If Appellant is able to proceed as he is attempting to do,future appellants will be better off not raising ripe delay issues. That is, if an appellant in Moreno’s position thought he was going to be successful on the implied bias issue, he could keep the post-trial delay  issue as an insurance policy in the event he was convicted at the rehearing.

Gov’t Br. at 26.

The Appellant replies to this line of argument by pointing out that:

 At the conclusion of the third DuBay hearing there was no way to know what, if any, action the lower court would take. Moreover, because the case was still in the appellate process at that point, additional delay was accruing with every passing month. The cleaner and only appropriate approach was the one Appellant adopted: raise the issue at the rehearing itself then raise the issue at first chance after the rehearing to the service court. It could not be clearer that Captain Lee neither sat on his hands nor improperly neglected to complain.

App. Reply at 6.

For the fourth factor, prejudice, the Appellant briefly argues that this case is one of those cases that is so egregious a showing of prejudice is not required. App. Br. at 27-28. However, the Appellant also continues on and addresses the first two categories of prejudice from Moreno:  oppressive incarceration pending appeal and anxiety and concern of those convicted awaiting the outcome of their appeals.

For the first category, the Appellant points to the language from Moreno that if an appellant’s substantive appeal is meritorious and the appellant was incarcerated during the appeal period, that may make the incarceration oppressive. App. Br. at 29. That was certainly the situation for the Appellant here.

The Government responds to this argument by pointing out that the Appellant was released from prison the around the time the Moreno clock expired, and that the majority of the delay occurred after the Appellant was released from prison. Gov’t Br. at 28. Essentially, the Appellant would have spent the same amount of time in confinement waiting for his first appeal anyway. Further, the Government argues that even if the CAAF finds oppressive incarceration, it should give that factor little weight since the case not overturned for factual insufficiency. Id.

The Appellant starts his argument related to anxiety and concern with a picture of his Texas sex offender web page copied into the brief. He proceeds to explain the detrimental effects of being a sex offender and the failure of the process to move quickly enough for him to be removed in a reasonable time frame. App. Br.  at 32. The Government responds to this section with the bizarre argument that:

 Appellant’s claim of  prejudice, and really his entire due process claim, rests on the claim that but for the delay, his conviction would have been overturned sooner, and as a result he would have had his name removed from Texas’ sex offender registry years earlier. (Appellant’s Br. at 8.) But this claim neglects the fact that it was the delay that allowed Appellant to end up in his current position. But for the delay, he would still be a sex offender.

Gov’t Br. at 29. The Government believes this is the case for three reasons. First, the Government asserts that if the case had been processed faster, the Appellant’s detailed defense counsel might have had a better memory at the Dubay hearings about what he disclosed to the Appellant concerning his conflict. This in turn might have made the previous case at CAAF turn out differently. Gov’t Br. at 30. Second, the Government argues the passage of time benefited the Appellant because when the case was set aside, the victims in the case no longer wanted to participate in the case and their memories had “faded.” Gov’t Br. at 31. Third, the Government argues that the delay allowed the Appellant more time to build his case for rehabilitative potential. Gov’t Br. at 31-32.

Breaking out the DeLorean or crystal ball or I’m not sure what, the Government makes the bold assertion that if this case had come back in 2006 or 2008, the accused would still be a sex offender because the result would have been similar to his first trial and/or the convening authority would not have given him such a favorable plea deal. Gov’t Br. at 32. This reasoning strikes me as something along the lines of someone who breaks into my house and steals my old laptop telling me that I should really be thanking them because my insurance bought me a new one. While I’m happy to have a new laptop, I still don’t have a great feeling about what happened and would probably like to see something bad happen to the person who took my old laptop.

The parties close their briefs by discussing what the appropriate remedy should be if the CAAF finds a due process violation. The Appellant asks for a dismissal and argues that this is an appropriate rebuke to the Government’s inaction and indifference in removing the Appellant from the registered sex offender list after his case was set aside. App. Br. at 35-39. The Government response is similar to portions of their argument on the Barker prejudice factor, but essentially boils down to the fact that, in their view, the Appellant has benefitted overall from any delay in the post-trial processing of the case, and he was given credit and a lenient sentence in recognition of the Government’s failure to take steps to remove the Appellant from the Texas sex offender registry. Gov’t Br. at 33-34.

If you’ve stuck it out to the end of this analysis, the unfortunate news is that your only reward is my marginally informed prediction about the outcome of the case. My sense though is that the Appellant will have a tough time getting past the waiver issue. If the CAAF resolves that issue in favor of the Government, which I believe it will, then that’s the end. What remains to be seen is whether CAAF will leave it at that or if they will address any sort of dicta related to the shenanigans with the Dubay hearing or the Government’s failure to act to immediately to remove the Appellant from the sex offender registration list. That last issue in a way loops back into the discussion on Zach’s Talkington preview about whether sex offender registration is truly only a collateral consequence. Maybe CAAF will provide some further clarity on that point, but I’m not counting it.

Case Links:
NMCCA opinion (2007)
Blog post: Is it a conflict for an accused to be represented by a part-time DC/part-time TC?
CAAF opinion (66 MJ 387 (2007))
Blog post: CAAF orders additional factfinding in defense counsel conflict case
NMCCA opinion (2009)
• Blog post: Repeated-Lee remanded (in homage to the musical 1776)
NMCCA opinion (2011)
Blog post: Important published NMCCA opinion on USMC defense counsel who was a subordinate of the prosecutor
Blog post: Thoughts on United States v. Lee
NMCCA opinion (2013)
Appellant’s Brief
Appellee’s (Government) Brief
Appellant’s Reply Brief

One Response to “Argument Preview: United States v. Lee, No. 07-0725/MC”

  1. RKincaid3 says:

    Hmmm…It is worth considering what effect an independent prosecution branch—one which is responsible for not only the trial, but also for preparing the post-trial record and all proceedings related thereto—would have have on post-trial processing.  It seems to me that all the appellate debate about post-trial delays, who caused them and what relief is or is not warranted, and whether such delays were prejudicial, etc., etc., are simply the result of too much going on in too small an SJA office too busy advising the commander on too many things.  JAGs are, after all, generalists.  I say “small” SJA offices because those offices are not only charged with MJ matters, but Admin law, Enviro Law, Contract Law, Claims, Legal Assistance and the Tax Office, etc., etc.  And to that MJ shops are busy, busy, busy.  And many are not happy, happy, happy with their post-trial processing obligations.  Such shops are arguably too busy…as evinced by the sheer number of delays that occur in post-trial processing which in turn leads to confusing post-trial cases on appeal and courts issuing contradictory guidance much more often than they should.  If memory serves, years ago there was a judicially imposed “90” day rule, but that was too hard on the government. Then there was a “120” day rule, and the government was still missing that.  I am sure there are other relevant rules on this issue that have morphed far and wide that I am missing.  And this analysis doesn’t even begin to include the appellate delays from either side once new GAD/DAD attorneys get involved.  Again, substantive relief on appeal must hold both sides to firm procedural rules with little leeway for excuses for failure to follow the rule.  Such is or should be the nature of a justice system.  For when any system can excuse its own repeated violations of the rules for any reason whatsoever simply because of a perceived lack of prejudice to one side or the other arising from the violation, and despite increasingly repetitive violations, one must ask: what is the purpose of having a rule in the first place?  Again, where is the substantive relief to either side when a rule is violated by either side?