CAAFlog » October 2017 Term » United States v. Gonzalez-Gomez

Yesterday – nine days after hearing oral argument – CAAF summarily reversed the Army CCA’s decision in United States v. Gonzalez-Gomez, No. 17-0200/AR (CAAFlog case page), remanding the case for further consideration of the adequacy of the CCA’s grant of 180 days of confinement credit for dilatory post-trial processing:

No. 17-0200/AR. U.S. v. Carlos A. Gonzalez-Gomez. CCA 20121100. On further consideration of the granted issue, 76 M.J. 174 (C.A.A.F.2017), the briefs of the parties, and oral argument, it is ordered that the decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals for a new review under Article 66, Uniform Code of Military Justice, 10 U.S.C. § 866 (2012). In this review, the Court of Criminals Appeals will specifically address the following issue:

IN LIGHT OF THE FACT THAT THE COURT OF CRIMINAL APPEALS ISSUED ITS INITIAL OPINION OUTSIDE OF THE TIMEFRAME ESTABLISHED IN UNITED STATES v. MORENO, 63 M.J. 129 (C.A.A.F. 2006), AND ONE DAY AFTER APPELLANT WAS RELEASED FROM CONFINEMENT ON PAROLE, DID THE 180-DAY REDUCTION IN THE ADJUDGED SENTENCE OF CONFINEMENT AFFORD APPELLANT MEANINGFUL RELIEF FOR THE DILATORY POST-TRIAL PROCESSING?

The 180-days of credit was for the 641 days it took the convening authority to act on the result of trial. But it took the Army CCA 782 to issue that decision, and Gomzalez-Gomez was released from confinement one day before the CCA acted.

CAAF granted review to determine whether this deprived Gonzalez-Gomez of his right to due process. Yesterday’s summary reversal doesn’t address that issue. But it does seem to be an invitation to the Army CCA to do something dramatic.

Audio of today’s oral arguments at CAAF is available at the following links:

United States v. Short, No. 17-0187/AR (CAAFlog case page): Oral argument audio.

United States v. Gonzalez-Gomez, No. 17-0200/AR (CAAFlog case page): Oral argument audio.

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.

United States v. Gonzales-Gomez, 75 M.J. 965, 969 n.3 (A. Ct. Crim. App. Nov. 30, 2016) (link to slip op.). In a concurring opinion Judge Wolfe added:

These delays reflect a lack of leadership, not resources. It is carelessness so stark the United States does not even try to defend it. Given the egregiousness of the delay, and the lack of any effort to explain it, I would find this convening authority and his staff violated appellant’s due process rights.

75 M.J. at 969 (Wolfe, J. concurring). The panel found no due process violation, however it reduced the adjudged sentence by 180 days.

Private (E-1) Gonzales-Gomez was sentenced to confinement for six years and a dishonorable discharge. The convening authority approved the sentence as adjudged. Gonzales-Gomez was released from post-trial confinement on November 29, 2016; one day before the Army CCA’s decision that reduced his sentence by 6 months.

CAAF then granted review to determine:

Whether dilatory post-trial processing violated Appellant’s due process rights and warrants relief when 782 days elapsed between docketing at the Army Court and opinion.

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