Argument Preview: What took the Army CCA so long, in United States v. Gonzalez-Gomez, No. 17-0200/AR
CAAF will hear oral argument in the Army case of United States v. Gonzalez-Gomez, No. 17-0200/AR (CAAFlog case page), on Tuesday, October 24, 2017, after the oral argument in Short. A single issue questions the 2 years, 1 month, and 20 days it took a three-judge panel of the Army CCA to issue a published decision in the case. That decision granted relief for the 1 year, 9 months, and 3 days it took the convening authority to act on the result of trial; a length of time CAAF’s precedent presumes to be unreasonable. Writing for the panel, Senior Judge Mulligan noted that:
The only plausible explanation for this extraordinary delay is a total lack of rigor and accountability in the SJA’s office.
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.
It seems like all three of these Moreno deadlines were violated in this case.
Gonzales-Gomez was sentenced on November 30, 2012. 75 M.J. at 969; App. Br. at 1; Gov’t Div. Br. at 2. The convening authority acted 641 days later, long past the 120-day Moreno limit. 75 M.J. at 969. The CCA’s opinion does not give the date of that action, but 641 days after November 30, 2012, is September 2, 2014 (link to calculation). The case was docketed at the CCA 38 days later, on October 10, 2104. App. Br. at 3; Gov’t Div. Br. at 3.
While the CCA’s opinion doesn’t give the date of the convening authority’s action, Senior Judge Mulligan’s majority opinion states:
The [Staff Judge Advocate’s Recommendation] was not signed until 1 September 2014, 610 days after appellant’s court-martial.
75 M.J. 969. But September 1, 2014, is 640 days – not 610 days – after November 30, 2012 (link to calculation). The briefs do not address this apparent error in the CCA’s opinion.
Once the case was docketed at the CCA it took 188 days for Gonzalez-Gomez to file his brief, 208 days for the Government Appellate Division to respond, and another 386 days for the CCA to issue its opinion. That opinion – 1 of only 21 published opinions of the CCA issued in 2016 – is just 8 pages long (including the separate concurring opinion).
Under Moreno, dilatory post-trial processing is evaluated by balancing the four-factor test from Barker v. Wingo, 407 U.S. 514, 530 (1972): (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. “No single factor [is] required to find that post-trial delay constitutes a due process violation.” Moreno, 63 M.J. at 135.
Gonzales-Gomez’s brief categorizes the 782 days it took the Army CCA to decide his case as “extraordinary.” App. Br. at 5. It then observes that “the Army Court failed to provide any reason whatsoever for their extraordinary delay in this case.” App. Br. at 6. Gonzales-Gomez did not specifically assert his right to timely appellate review, but his brief asserts that he “implicitly asserted this right” by raising the issue of dilatory post-trial processing. As for prejudice, the brief claims that:
Had the Army Court met the eighteen month standard, the opinion would have been issued 242 days earlier, allowing PV1 Gonzalez-Gomez to benefit from the Army Court’s relief as he would have been released from confinement 180 days earlier.
App. Br. at 8.
The Government Division, however, disagrees that an earlier decision would have guaranteed an earlier release from confinement:
The appellant was originally sentenced to serve six years in confinement for forcible sodomy and other offenses. The appellant actually served four years of that time. The record contains no indication as to why the appellant was released from confinement on November 29, 2016. . . . The mere fact that the Army Court reduced the appellant’s sentence of confinement does not necessarily mean that his release date would change by a corresponding amount, if at all.
Gov’t Div. Br. at 12-13. It’s normal for a military prisoner to serve less than the adjudged sentence based on credits received for good conduct, working while confined, participating in rehabilitation programs, and other activities, but the Government Division does make a valid point that there is no guarantee that an earlier CCA decision would have resulted in an earlier release from confinement.
Prejudice, however, is only one of four factors, none of which is required for a finding of a due process violation. Addressing this, the Government Division’s brief argues:
The appellant has failed to show prejudice as a result of the Army Court’s delay in the appellate processing of his case. Without a finding of prejudice, this court should “find a due process violation only when, in balancing the other three factors, the delay is so egregious that tolerating it would adversely affect the public’s perception of the fairness and integrity of the military justice system.” Toohey, 63 M.J. at 362. This is not such a case. While two of the Barker factors weigh in the appellant’s favor, they do so only slightly. Furthermore, the egregious delays present in cases such as Moreno and Dearing are not present in this case. In those cases, the delay was the primary result of personnel issues and inattentiveness by counsel. In the appellant’s case, however, the delay only exceeded the Moreno threshold by a matter of months, not years, and was due in large part to the decision-making process of the Army Court, which resulted in a well-reasoned opinion that not only reduced the appellant’s adjudged sentence but also serves as future precedent for the Army. As the appellant’s due process rights were not violated, he is not entitled to relief.
Gov’t Div. Br. at 14. This argument, however, implicates a double standard. The Army CCA had this case for 782 days. That time wasn’t largely due to the decision-making process of the Army court, it was entirely due to the decision-making process of the Army court. “Article 66(c), UCMJ, requires that the CCAs conduct a plenary review,” of each case. United States v. Chin, 75 M.J. 220, 222 (C.A.A.F. 2016). Such a review begins when the case is docketed, not when the briefs are finished, particularly since the briefing schedule is up to the Army court. Furthermore, to argue – as the Government Division does – that the delay in this case was only largely due to the CCA’s decision-making process suggests that when a CCA allows an extension of time to file a brief, that extension and the resulting brief aren’t part of the decision-marking process.
It’s worth mentioning that the Army CCA’s rules of practice include a unique rule that almost certainly contributed to the delay in this case. Under Rule 24.1(c) of the Army court’s rules, the Defense and Government Appellate Divisions each get two, 90-day extensions of time in each case. The rules explain that:
A consolidated motion for extension of time to file must indicate that the division chief or acting division chief has determined that the extensions requested are necessary in the interests of justice due to the volume of appellate workload then pending in the division.
R. 24.1(c)(3). So, according to the CCA’s rules, appellate workload (a function of the Government’s assignment of resources to the appellate divisions) justifies an additional 360 days of delay.
The judges of the CCA decried “a total lack of rigor and accountability in the SJA’s office,” “a lack of leadership, not resources,” and “carelessness so stark the United States does not even try to defend it.” It will be hard to escape the irony of those words during next week’s oral argument.