To paraphrase T.S. Eliot, this is the way United States v. Lee ends, not with a bang, but a waiver. Ok, that may be a little dramatic, but you get the point. On March 7, 2014, CAAF decided the Marine Corps case of United States v. Lee, No. 07-0725/MC, 73 M.J. 166 (CAAFlog case page) (link to slip op.).  In a unanimous decision, the Court held that the Appellant “waived any speedy appellate review claim relating to the post-trial period preceding the rehearing, including any prejudice from the additional time spent on the Texas Public Sex Offender Registry prior to the waiver,” and that “the remaining 141-day period of review between the sentencing portion of Appellant’s rehearing and the convening authority’s action did not amount to a due process violation.” Slip op. at 2.

The granted issue in this case was whether the NMCCA 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. Slip op. at 2. Before reaching the substance of the granted issue, the Court had to determine whether the Appellant waived review of the delay in the granted issue when he pleaded guilty to new charges after his case was overturned by NMCCA. Because CAAF resolves the threshold question of waiver in favor of the Government, they do not reach the main issues presented by the bulk of the delay.

Judge Ryan, writing for the Court, notes that:

We have long recognized the general proposition that a plea of guilty “waives nonjurisdictional errors that occurred in the earlier stages of the proceedings.” Joseph, 11 M.J. at 335; see also United States v. Lopez, 20 C.M.A. 76, 77–78, 42 C.M.R. 268, 269–70 (1970). In Bradley, we reaffirmed this general rule, but observed that R.C.M. 910(a)(2) creates an exception where an accused enters into a conditional guilty plea. 68 M.J. at 281–82. However, because “there is no constitutional right to enter such a plea . . . it follows that compliance with the regulation is the sole means of entering a conditional plea and preservingthe issue on appeal.” Id.

Slip op. at 9-10. The Court observes that there is no indication from the record of trial that a conditional plea was entered. Slip op. at 10. Further, the Court notes that this issue was raised prior to the guilty plea at the trial level, denied, and that there did not appear to be an effort to preserve the issue at the trial level. Id.

The Court then addresses the Appellant’s claim that waiver should not apply where the delay violated his due process rights under the Fifth Amendment saying:

“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.” Bradley, 68 M.J. at 282 (citing United States v. Broce, 488 U.S. 563, 574–76 (1989) (double jeopardy); Menna v. New York, 423 U.S. 61, 61–63 (1975) (double jeopardy)). Such limits do not arise where an appellant merely complains of “‘antecedent constitutional violations’” or a “‘deprivation of constitutional rights that occurred prior to the entry of the guilty plea,’” Blackledge v. Perry, 417 U.S. 21, 30 (1974) (citation omitted), rather they apply “where on the face of the record the court had no power to enter the conviction or impose the sentence.” Broce, 488 U.S. at 569…

Slip op. at 11.

The Court also finds that this is not a case that falls in the “narrow limitation for litigated speedy trial motions alleging a violation of Article 10, UCMJ.” Id. The Court states that:

Where an Article 10, UCMJ, motion is litigated at trial, that issue is preserved for appeal despite an unconditional guilty plea. Mizgala, 61 M.J. at 127; Tippit, 65 M.J. at 75. This narrow exception is based on the “‘unique nature of the protections’ set forth in Article 10.” Tippit at 75 (quoting Mizgala, 61 M.J. at 127); see also Mizgala, 61 M.J. at 124. Neither case suggested that the exception to the waiver doctrine was available for motions based on delay in violation of any other rule, statute, or constitutional provision.

Slip op. at 12. The Court concludes their analysis of the waiver issue by saying:

Appellant does not claim that the court-martial lacked jurisdiction over the offenses, did not litigate a motion under Article 10, UCMJ, and at no point has Appellant challenged the “voluntary and intelligent character” of his pleas. See Broce, 488 U.S. at 574. Under the circumstances of this case, Appellant waived review of the appellate delay arising prior to his unconditional guilty pleas.

Slip op. at 12. This leaves the issue of a 141-day delay between the date of the new sentencing and the convening authority’s action. The Court spends all of about half a page applying the Moreno factors to this delay. The Court concludes that because twenty days were attributable to the defense for additional time to submit clemency, the Appellant did not demand speedy review during this period, and his name had been removed from the Texas Sex Offender Registry, there was no violation of his due process rights. Slip op. 13-14.

The primary takeaway from this decision seems to be that if you’re pleading guilty, don’t plan on any appellate review of prior violations of your constitutional rights. If you want to preserve that kind of issue, then you need to enter a conditional guilty plea. Good luck getting that clause into your PTA though. My inclination is that if the Appellant’s counsel in this case had started talking about a conditional plea, it would not have moved negotiations in a positive direction. While this is a bit of a quiet exit for this case, it’s a case that had a profound impact on the way military justice is practiced, particularly in the Marine Corps, and served as a catalyst for some much needed change.

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