In a published opinion in United States v. Banks, __ M.J. __, No. 20130948 (A. Ct. Crim. App. Aug. 16, 2016) (link to slip op.), the Army CCA holds that the Government is responsible for all post-trial delay incurred while waiting for the defense to submit matters to the convening authority, except for the maximum of 20 additional days of delay that may be authorized under Article 60(b)(2).
In United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006), CAAF found that three kinds of post-trial delay are presumptively unreasonable: (1) When the convening authority fails to take action within 120 days of the completion of trial; (2) When the case is not docketed at the CCA within 30 days of the convening authority’s action, and; (3) When the CCA’s decision is rendered more than 18 months after docketing of the case.
The first kinds of delay is at issue in Banks, as the convening authority took action 440 after the completion of trial. 153 of those 440 days, however, were spent waiting for the appellant’s defense counsel to submit matters to the convening authority. Article 60(b)(1) dictates that “such a submission shall be made within 10 days” of the accused receiving the record and staff judge advocate’s recommendation, and Article 60(b)(2) permits an extension of time “for not more than an additional 20 days.” Despite these statutory time limits, Army convening authorities often delay taking action to allow defense counsel additional time.
In Banks, the Army CCA finds “no authority for the government to grant an extension beyond twenty [additional] days.” Slip op. at 4. “Accordingly, we cannot relieve the government of their obligation to comply with Moreno.” Id.
The CCA then concludes that for the purposes of calculating the number of days under Moreno, the initial 10-day period and any excess time counts against the Government, while any extension under Article 60(b)(2) counts against the appellant:
[W]e hold that in calculating compliance with Moreno’s 120-day threshold, when considering submissions under R.C.M. 1105 the only time that may be excluded from the calculation is when the accused has requested (and been granted) a twenty day extension in accordance with Article 60(b). As after the authorized time has expired the convening authority is authorized to take action, any additional time taken by the defense will continue to accrue towards the Moreno 120-day presumption of unreasonableness.
Slip op. at 7.