United States v. Bush

UNITED STATES, Appellee v. Marco A. BUSH, Private First Class U.S. Marine Corps, Appellant No. 09-0119 Crim. App. No. 200700137 United States Court of Appeals for the Armed Forces Argued April 28, 2009 Decided August 17, 2009

ERDMANN, J., delivered the opinion of the court, in which EFFRON, C.J., and BAKER, J., joined. RYAN, J., filed a separate opinion concurring in the judgment, in which STUCKY, J., joined.

Counsel

For Appellant: Lieutenant Commander Thomas P. Belsky, JAGC, USN (argued); Major Christian J. Broadston, USMC, and Major Anthony W. Burgos, USMC (on brief).

For Appellee: Lieutenant Commander Paul D. Bunge, JAGC, USN (argued); Brian K. Keller, Esq. (on brief).

Military Judges: F. A. Delzompo and J. F. Havranek This opinion is subject to revision before final publication. United States v. Bush, 09-0119/MC Judge ERDMANN delivered the opinion of the court.

Before the United States Navy-Marine Corps Court of

Criminal Appeals, Private Marco A. Bush asserted that his due

process right to a speedy post-trial review was violated by a

delay of more than seven years from the court-martial to

docketing at the Court of Criminal Appeals. Bush claimed that

he suffered specific prejudice in that he was denied an

identified job because he did not have his discharge papers (DD

Form 214). In support of his claim, Bush provided his unsworn

declaration without any corroborating evidence.

Citing our opinion in United States v. Allende, 66 M.J. 142

(C.A.A.F. 2008), the lower court determined en banc that Bush

failed to adequately substantiate his claim of prejudice.

United States v. Bush (Bush CCA II), 67 M.J. 508, 510-12 (N-M.

Ct. Crim. App. 2008). Nevertheless, concluding that “the delay

in the post-trial review of this case ‘is so egregious that

tolerating it would adversely affect the public’s perception of

the fairness and integrity of the military justice system,’” the

lower court held that Bush’s due process right to speedy post-

trial review had been violated. Id. at 512 (quoting United

States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006)). The Court

of Criminal Appeals went on to conclude that the Government had

met its burden to show that the post-trial error was harmless

beyond a reasonable doubt and denied relief. Id. at 513. In 2 United States v. Bush, 09-0119/MC

doing so, the lower court stated that “appellant’s failure to

independently corroborate his assertion of specific employment

prejudice or alternatively to provide facts explaining his

inability to provide such independent corroboration weighs

heavily on our decision.” Id. We granted review to determine

whether Allende conflicts with this court’s long-standing

decision in United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997),

and also to determine whether the Court of Criminal Appeals

wrongfully imposed upon Bush the burden to establish that the

constitutional error was harmful.1 We see no conflict between Allende and Ginn, as applied by

the Court of Criminal Appeals in this case or otherwise. We

further conclude that to the extent that the Court of Criminal

Appeals erred in placing a burden of production on Bush, that

error was harmless beyond a reasonable doubt. We therefore

affirm the decision of the Court of Criminal Appeals.

1 We granted review of two issues:

I. WHETHER THE COURT OF CRIMINAL APPEALS’ INTERPRETATION AND APPLICATION OF THIS COURT’S DECISION IN UNITED STATES v. ALLENDE, 66 M.J. 142 (C.A.A.F. 2008) PLACES IT AT ODDS WITH THIS COURT’S DECISION IN UNITED STATES v. GINN, 47 M.J. 236 (C.A.A.F. 1997).

II. WHETHER THE COURT OF CRIMINAL APPEALS MISINTERPRETED ALLENDE, CREATING THE PRACTICAL RESULT OF SHIFTING TO AN APPELLANT THE BURDEN OF PROVING THAT A CONSTITUTIONAL ERROR WAS HARMFUL.

67 M.J. 268 (C.A.A.F. 2009).

3 United States v. Bush, 09-0119/MC PROCEDURAL BACKGROUND Consistent with his pleas, Bush was convicted of numerous

offenses under the Uniform Code of Military Justice (UCMJ).2 He

was sentenced to a dishonorable discharge, confinement for six

years, forfeiture of all pay and allowances, and reduction to

pay grade E-1. His sentence was adjudged by a military judge

sitting alone as a general court-martial on January 5, 2000.

The convening authority took action on November 16, 2000.

The case was docketed with the United States Navy-Marine

Corps Court of Criminal Appeals on February 13, 2007 -- over six

years later. On July 25, 2007, the Court of Criminal Appeals

determined that the convening authority’s action was ambiguous

and ordered that the case be returned to the Judge Advocate

General of the Navy for submission to an appropriate convening

authority for proper post-trial processing in compliance with

Rules for Court-Martial 1105-1107. The case was then to be

returned to the Court of Criminal Appeals for completion of its

review under Article 66, UCMJ, 10 U.S.C. § 866 (2000).

2 Bush entered guilty pleas and was convicted of one specification of attempting to escape from custody, one specification of failure to obey a lawful order, one specification of fleeing apprehension, one specification of resisting apprehension, two specifications of reckless driving, two specifications of assault with a dangerous weapon, and one specification of striking a superior noncommissioned officer, in violation of Articles 80, 92, 95, 111, and 128, UCMJ, 10 U.S.C. §§ 880 , 892, 895, 911, 928 (2000).

4 United States v. Bush, 09-0119/MC The convening authority took action on November 27, 2007,

approving the sentence as adjudged. Pursuant to a pretrial

agreement, the convening authority suspended confinement in

excess of twenty-four months for a period of six months from the

date of his action.3 He also deferred adjudged and automatic

forfeitures in the amount of $500.00 pay per month until the

date of action. Adjudged forfeitures and automatic forfeitures

in the amount of $500.00 pay per month were waived for six

months for the benefit of Bush’s dependent. The case was

returned to the Court of Criminal Appeals, which considered

Bush’s sole assignment of error -- unreasonable post-trial

processing delay.

The Court of Criminal Appeals issued its first opinion in

this case on March 11, 2008. United States v. Bush (Bush CCA

I), 66 M.J. 541 (N-M. Ct. Crim. App. 2008). Using the four-

factor analysis for resolving post-trial delay claims, the lower

court concluded that Bush’s due process right to speedy post-

trial review was violated. Id. at 542-444 ; see United States v.

Moreno, 63 M.J. 129, 135-41 (C.A.A.F. 2006).

3 The convening authority’s initial action on November 16, 2000, also complied with the pretrial agreement. There is no allegation, nor any indication from the record, that the post- trial delay resulted in any period of wrongful incarceration. 4 The lower court applied the factors identified in Barker v. Wingo, 407 U.S. 514 (1972), to assess: (1) the length of the delay; (2) the reasons for the delay; (3) the Appellant’s 5 United States v. Bush, 09-0119/MC In reaching this conclusion, the Court of Criminal Appeals

determined: (1) the length of the delay -– “over seven years to

review a 143-page guilty plea” -- was facially unreasonable; (2)

the record was “apparently lost in the mail for over six years,”

so the reason for the delay weighed heavily in Bush’s favor; (3)

Bush’s unrebutted, unsworn declaration asserted that he

repeatedly contacted his command and the Navy-Marine Corps

Appellate Leave Activity inquiring about his case; and (4) Bush

established specific prejudice by showing through a

preponderance of the evidence that he was denied employment

because he did not have his DD Form 214. Bush CCA I, 66 M.J. at

542-44. With respect to specific prejudice, the lower court

reasoned:

[Bush’s] declaration asserts he was denied employment by the Costco store in Huntsville, Alabama, three to four years after his trial, specifically because he lacked his final discharge papers (DD Form 214). . . . In this instance, the appellant identified a specific store in a specific town during a specific timeframe. He specifically asserts the reason he was denied employment was directly tied to dilatory post-trial processing of his court-martial. Finally, he asserts that, by virtue of his prior employment in the same position with a Costco store in California, he was fully qualified to perform the job. We find this was “adequate detail” to permit the Government to inquire further in order to verify or dispute the appellant’s assertions. . . . As the Government offers no evidence to refute the appellant’s claims, we find

assertion of the right to timely review and appeal; and (4) prejudice. Bush CCA I, 66 M.J. at 542-44 (citing United States v. Jones, 61 M.J. 80, 83 (C.A.A.F. 2005)).

6 United States v. Bush, 09-0119/MC that the appellant has sustained his burden by a preponderance of the evidence that he has suffered prejudice due to post-trial delay.

Id. at 543 (citation and footnote omitted).

The Court of Criminal Appeals held that under the totality

of the circumstances, it could not conclude that the error was

harmless beyond a reasonable doubt. Id. at 544. As relief, the

court affirmed only so much of the sentence as provided for a

bad-conduct discharge. Id.

On March 12, 2008, the day after the Court of Criminal

Appeals decided Bush CCA I, this court issued its opinion in

Allende, 66 M.J. 142 . Allende addressed a claimed denial of due

process in a case that involved a seven-year delay between

sentencing and resolution of Article 66, UCMJ, appellate review.

Id. at 145 . Allende claimed that he suffered prejudice on the

grounds that a number of potential civilian employers were

unwilling to consider him because he could not provide them with

a DD Form 214. Id. Similar to this case, Allende submitted

nothing more than his own declaration in support of his claim.

Id. In Allende, we assumed a due process violation and

proceeded directly to the question of whether the error was

harmless beyond a reasonable doubt. Id. We recognized the fact

that the appellant did not provide documentation from potential

employers regarding their employment practices and did not

demonstrate a valid reason for failing to do so. Id. We 7 United States v. Bush, 09-0119/MC

concluded that in that context, the assumed error was harmless

beyond a reasonable doubt and we noted that the appellant failed

to present substantiated evidence to the contrary. Id.

In light of this court’s opinion in Allende, the Court of

Criminal Appeals, sitting en banc, reconsidered its decision in

Bush CCA I. In a decision issued on August 19, 2008, the lower

court maintained that Bush “provided an adequately detailed

declaration articulating prejudice to his employment

opportunities.” Bush CCA II, 67 M.J. at 512 . Citing Allende,

however, the lower court concluded that Bush “has not met his

additional burden to provide corroborating evidence or an

explanation of why such evidence could not be obtained.

Consequently, this fourth factor of prejudice weighs in favor of

the Government.” Id. Quoting our decision in Toohey, 63 M.J.

at 362 , the lower court went on to conclude that “even in the

absence of specific prejudice to the appellant, the delay in the

post-trial review of this case ‘is so egregious that tolerating

it would adversely affect the public’s perception of the

fairness and integrity of the military justice system.’” Bush

CCA II, 67 M.J. at 512 . The lower court consequently held that

Bush’s due process right to speedy post-trial review was

violated. Id. The lower court went on to conclude that the

Government had met its burden to show that the error was 8 United States v. Bush, 09-0119/MC

harmless beyond a reasonable doubt. Id. at 513 . In doing so,

the Court of Criminal Appeals stated:

The appellant’s failure to independently corroborate his assertion of specific employment prejudice or alternatively to provide facts explaining his inability to provide such independent corroboration weighs heavily in our decision. The appellant does not assert and our review of the record did not reveal evidence that the appellant has suffered ongoing prejudice from oppressive incarceration or undue anxiety. We conclude, therefore, that the Government has met its burden to show that the post-trial error was harmless beyond a reasonable doubt.

Id. (footnote omitted).

DISCUSSION 1. Requiring an appellant to provide independent evidence to substantiate a claim that he was impaired in his ability to obtain employment as a result of post-trial delay does not conflict with Ginn.

Bush contends that because the Court of Criminal Appeals

specifically found that his declaration presented “‘legally

competent evidence’ as well as ‘state[d] a claim of legal error

and provide[d] adequate detail to permit the Government to

validate or dispute his claims[,]’ . . . under Ginn, such

evidence would have permitted the court to grant relief based on

the affidavit.” Bush further contends that by relying on

Allende to find the evidence insufficient and to require

independent corroboration of employment prejudice, the Court of

Criminal Appeals “effectively modified Ginn, at least in the

context of post-trial delay cases.” In response, the Government 9 United States v. Bush, 09-0119/MC

argues that the Ginn framework is unworkable as applied to post-

trial claims of employment prejudice. The Government contends

that it does not have a method to obtain witness testimony or

documentary evidence at the appellate level where it has no

subpoena power and that remand to a United States v. DuBay, 17

C.M.A. 147 , 37 C.M.R. 411 (1967), hearing is essential to

provide it with access to evidence.

To establish prejudice under the fourth Barker factor on

the grounds that post-trial delay impaired an appellant’s

ability to secure employment, an appellant must do something

more than provide his own affidavit asserting that a specific

employer declined to hire him because he lacked a DD Form 214.

In Bush CCA II, the Court of Criminal Appeals relied on Allende

for the proposition that an appellant must provide corroborating

evidence to support his claim of employment prejudice. 67 M.J.

at 512 . While the lower court correctly recognized the

requirement, we note that it has been a part of our case law

long before Allende.

Even before we adopted the Barker factors for analyzing

allegations of post-trial delay due process violations, we

rejected claims of employment prejudice in the absence of

independent supporting evidence. In United States v. Jenkins, 38 M.J. 287, 289 (C.M.A. 1993), the appellant claimed that he

was interviewed by a specific company but could not be hired 10 United States v. Bush, 09-0119/MC

because he could not establish his Navy rating as an electronics

technician without his DD Form 214. This court rejected that

claim noting that it was unsupported by any independent

evidence. Id. As an appellant himself will generally lack

personal knowledge as to why he did not get hired, the

evidentiary deficiency in this circumstance is plain. See

Military Rule of Evidence (M.R.E.) 602 (“A witness may not

testify to a matter unless evidence is introduced sufficient to

support a finding that the witness has personal knowledge of the

matter.”); see also United States v. Gosser, 64 M.J. 93, 98

(C.A.A.F. 2006) (criticizing the appellant’s prejudice arguments

for failing to provide any substantive evidence “from persons

with direct knowledge of the pertinent facts”).

In most cases, the appropriate source of information

pertaining to the hiring decisions of a potential employer will

be a representative of the potential employer itself. Such was

the case in Jones, 61 M.J. at 84-85 , where the appellant

submitted the affidavits of three company officials stating that

the appellant would have been considered for a position at the

company if he had his DD Form 214. In that context, this court

determined that the appellant established prejudice to

employment opportunities as a result of post-trial delay. Id.

at 85 .

11 United States v. Bush, 09-0119/MC Contrary to Bush’s contentions, we see no conflict between

our cases requiring that an appellant support his assertions of

employment prejudice with independent evidence and Ginn. As a

general matter, the now familiar principles of Ginn provide a

workable framework for analyzing when post-trial issues framed

by post-trial affidavits can be resolved without ordering a

factfinding hearing under DuBay, 17 C.M.A. 147 , 37 C.M.R. 411 .5

5 Ginn sets forth a number of factors under which a post-trial evidentiary hearing would not be required. 47 M.J. at 248 . As we have previously stated, “The linchpin of the Ginn framework is the recognition that a Court of Criminal Appeals’ factfinding authority under Article 66(c) does not extend to deciding disputed question of fact pertaining to a post-trial claim, solely or in part on the basis of conflicting affidavits.” United States v. Fagan, 59 M.J. 238, 242 (C.A.A.F. 2004). However, “a post-trial evidentiary hearing is not required in every case simply because an affidavit is submitted by an appellant.” Id. at 241 . The six factors articulated in Ginn are as follows:

First, if the facts alleged in the affidavit allege an error that would not result in relief even if any factual dispute were resolved in appellant’s favor, the claim may be rejected on that basis;

Second, if the affidavit does not set forth specific facts but consists instead of speculative or conclusory observations, the claim may be rejected on that basis;

Third, if the affidavit is factually adequate on its face to state a claim of legal error and the Government either does not contest the relevant facts or offers an affidavit that expressly agrees with those facts, the court can proceed to decide the legal issue on the basis of those uncontroverted facts;

Fourth, if the affidavit is factually adequate on its face but the appellate filings and the record as a 12 United States v. Bush, 09-0119/MC

See Ginn, 47 M.J. at 248 . However, if substantive law places a

burden of proof or persuasion on either party with respect to

issues raised post-trial, Ginn and its progeny do not relieve

that party of such a burden. See, e.g., United States v. Pena, 64 M.J. 259, 266-67 (C.A.A.F. 2007) (finding the appellant’s

declaration insufficient to support the post-trial claim that

his participation in the Mandatory Supervised Release program

produced an impermissible increase in the adjudged punishment).

Nor does Ginn alter the fundamental requirement that a witness’s

testimony be based upon personal knowledge. See M.R.E. 602.

In the context of Bush’s claim of employment prejudice

under the fourth Barker factor, he failed to provide independent

evidence to support his claim that lack of a DD Form 214

impaired his ability to secure employment and did not

demonstrate a valid reason for not doing so. Consequently, the whole “compellingly demonstrate” the improbability of those facts, the court may discount those factual assertions and decide the legal issue;

Fifth, when an appellate claim . . . contradicts a matter that is within the record of a guilty plea, an appellate court may decide the issue on the basis of the appellate file and record . . . unless the appellant sets forth facts that would rationally explain why he would have made such statements at trial but not upon appeal;

Sixth, the Court of Criminal Appeals is required to order a factfinding hearing only when the above-stated circumstances are not met.

47 M.J. at 248 .

13 United States v. Bush, 09-0119/MC

fourth Barker factor is resolved against Bush before the

question even arises as to whether, under Ginn, factual issues

raised in his declaration could be resolved without a DuBay

hearing.6 See Jones, 61 M.J. at 85 & n.25. As such, we see no

conflict.

2. The post-trial delay due process violation was harmless beyond a reasonable doubt.

Bush contends that once the Court of Criminal Appeals found

a due process violation in the absence of Barker prejudice, it

erred in finding that the due process violation was harmless

beyond a reasonable doubt. Bush argues that the lower court

improperly interpreted Allende to effectively shift the burden

to him to establish that the due process violation was not

harmless beyond a reasonable doubt. The Government responds

that the lower court reached the right result but for the wrong

reasons, arguing that the harmless beyond a reasonable doubt

standard does not apply unless the appellant establishes

constitutionally recognized prejudice -- which Bush did not do

in this case. The Government argues that because any error was

not constitutional, the burden of showing prejudice was always

upon Bush.

6 That is not to say, however, that appellate courts will never utilize the Ginn framework when considering claims of employment prejudice from post-trial delay. In Jones, for example, citing Ginn, 47 M.J. at 248 , this court accepted the content of the unrebutted declarations from the potential employers and applied the law to the unrebutted facts. 61 M.J. at 85 & n.25.

14 United States v. Bush, 09-0119/MC Initially, we disagree with any characterization of Allende

which suggests that the burden of proof or persuasion shifts to

an appellant to demonstrate that a post-trial due process

violation was not harmless beyond a reasonable doubt. Aside

from structural errors which are not susceptible of analysis for

harm, a constitutional error must be harmless beyond a

reasonable doubt before an appellate court can affirm the

resultant conviction or sentence. See United States v.

Kreutzer, 61 M.J. 293, 298-99 (C.A.A.F. 2005); United States v.

Hall, 58 M.J. 90, 94 (C.A.A.F. 2003) (citing United States v.

Walker, 57 M.J. 174, 178 (C.A.A.F. 2002)).

It is also clear that it is solely the Government’s burden

to persuade the court that constitutional error is harmless

beyond a reasonable doubt. See Chapman v. California, 386 U.S.

18, 24 (1967); United States v. Cendejas, 62 M.J. 334, 337

(C.A.A.F. 2006) (citing United States v. Simmons, 59 M.J. 485,

489 (C.A.A.F. 2004)); Kreutzer, 61 M.J. at 300 (citing Chapman, 386 U.S. at 24 ). We have not deviated from these black letter

principles in developing our post-trial delay, due process

jurisprudence. See United States v. Young, 64 M.J. 404, 409

(C.A.A.F. 2007); United States v. Allison, 63 M.J. 365, 370

(C.A.A.F. 2006); United States v. Harvey, 64 M.J. 13, 25

(C.A.A.F. 2006). This court reviews de novo both the

determination of a post-trial delay due process violation and 15 United States v. Bush, 09-0119/MC

the question of whether such a violation is harmless beyond a

reasonable doubt. Allison, 63 M.J. at 370 (citing Cendejas, 62

M.J. at 337 ).

As Bush notes in his brief, the determination of

harmlessness for post-trial delay is different than that applied

to constitutional trial errors. In the trial error arena, a

determination of harmless beyond a reasonable doubt tests

“‘whether, beyond a reasonable doubt, the error did not

contribute to the defendant’s conviction or sentence.’” United

States v. Wolford, 62 M.J. 418, 420 (C.A.A.F. 2006) (quoting

Kreutzer, 61 M.J. at 298 ); United States v. Grooters, 39 M.J.

269, 273 (C.M.A. 1994) (quoting Fahy v. Connecticut, 375 U.S.

85, 86-87 (1963)).

In contrast, post-trial delays do not necessarily impact

directly the findings or sentence. Instead, we must review the

record de novo to determine whether other prejudicial impact is

present from the delay. See, e.g., United States v. Szymczyk, 64 M.J. 179 , 179 (C.A.A.F. 2006) (relief required for due

process violation where the delay “subjected Appellant to sex

offender registration requirements longer than otherwise would

have been necessary”); United States v. Dearing, 63 M.J. 478,

488 (C.A.A.F. 2006) (court unable to determine due process

violation to be harmless beyond a reasonable doubt because, in

part, Barker prejudice was found); Jones, 61 M.J. at 84 -85 16 United States v. Bush, 09-0119/MC

(interference with post-military employment opportunities).

Unless we conclude beyond a reasonable doubt that the delay

generated no prejudicial impact, the Government will have failed

to attain its burden.

Despite the different nature of the inquiry into harmless

beyond a reasonable doubt where there is a post-trial delay due

process violation, the burden remains upon the Government.7 And,

just as we do in the case of constitutional trial errors, we

review the totality of the circumstances to determine whether

the due process violation is harmless beyond a reasonable doubt.

Young, 64 M.J. at 409 ; United States v. Rodriguez-Rivera, 63

M.J. 372, 386 (C.A.A.F. 2006); Allison, 63 M.J. at 371 .

Where an appellant alleges a due process violation in a

post-trial delay context, and where a due process violation is

found, the analysis performed by the appellate court necessarily

7 In Allende, the court assumed a due process violation, which eliminated the need for the balancing analysis, and went directly to reviewing the totality of the circumstances to determine whether the assumed error was harmless beyond a reasonable doubt. 66 M.J. at 145 (citing Allison, 63 M.J. at 370-71 ). While Allende presents a different approach for coming to the conclusion that there was a due process violation than cases, such as this one, which utilize the Barker balancing analysis to determine that there was a due process violation, there is no difference in the burden and standard for reviewing whether that error was harmless beyond a reasonable doubt. See, e.g., Toohey, 63 M.J. at 359-62 ; Jones, 61 M.J. at 84-85 . Specifically, under both approaches, the Government bears the burden and this court reviews the totality of the circumstances de novo.

17 United States v. Bush, 09-0119/MC

involves two separate prejudice determinations. For this

reason, the discussion of “prejudice” in the context of a post-

trial delay due process violation can be confusing. To be

clear, the initial prejudice review occurs in evaluating the

fourth Barker factor, which defines prejudice to include

oppressive incarceration, undue anxiety, and “‘limitation of the

possibility that a convicted person’s grounds for appeal, and

his or her defenses in case of reversal and retrial, might be

impaired.’” Moreno, 63 M.J. at 138-39 (citations omitted). If

a due process violation is found after balancing the Barker

factors, the appellate court determines whether, under the

totality of the circumstances, the error is harmless beyond a

reasonable doubt. That “harmless beyond a reasonable doubt”

review necessarily involves a prejudice analysis, and although

it involves a review of the same record, the scope and burden

differ from the Barker prejudice analysis.

The en banc Court of Criminal Appeals found there was no

Barker prejudice, but in balancing the remaining factors, the

lower court determined that there was a due process violation.

Bush CCA II, 67 M.J. at 512 . We have no reason to disturb that

conclusion.8 Instead, in consideration of the granted issue, we

8 As this court has previously stated, “[n]o single factor is required for finding a due process violation and the absence of a given factor will not prevent such a finding.” Moreno, 63 M.J. at 136 . In Toohey, we held that where no prejudice is 18 United States v. Bush, 09-0119/MC

focus on the determination that the due process error was

harmless beyond a reasonable doubt. Id. at 513. Bush contends

that the court imposed a burden upon him to raise a reasonable

doubt that the due process error was harmless. We note that the

language of the Court of Criminal Appeals could be read to

suggest that by “weigh[ing] heavily” Bush’s failure to

substantiate his claim of employment prejudice the lower court

placed some burden of production upon Bush. Id. If that is the

effect of the lower court’s decision, it is in error. Bush bore

no burden of demonstrating prejudice resulting from a due

process violation. However, in the absence of independent

evidence that Bush would have been hired or was otherwise

impaired from competing for a job for which he was qualified, it

found under Barker factor four, a due process violation could be found if 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.” 63 M.J. at 362. While the Government and the concurring opinion take issue with this language, it is not ultimately determinative in the present case and is therefore not addressed in the majority opinion. Nevertheless, the Government overreads this language. Barker factor four addresses specific prejudice to an appellant, not public perception. To clarify, the “public perception” analysis is utilized in quantifying the appropriate weight that is to be given to Barker factors one (length of delay) and two (reasons for delay) when balancing all the factors. In this case, Barker factors one and two weigh in Appellant’s favor; however, as detailed above, we decide this case on the ground that any appellate delay was ultimately harmless beyond a reasonable doubt.

19 United States v. Bush, 09-0119/MC

is also true that the Government may more readily demonstrate

that any error is harmless beyond a reasonable doubt.

We now review the totality of the circumstances de novo to

determine whether the post trial delay was harmless beyond a

reasonable doubt. This case involves a seven-year post-trial

delay, which is unreasonable on its face and which initially

triggered the due process analysis. The delay was largely

unexplained and was attributed to the Government. However, the

record is bereft of any evidence of prejudice to Bush as a

result of the delay.9 In circumstances where a record

establishes that an appellant has suffered Barker prejudice, the

9 As noted supra at pp. 6-7, the record contains Bush’s own declaration claiming that he was not hired for a particular job because he did not have his DD Form 214. Post-trial submissions have no automatic value as evidence where they are not relevant or where they are not based upon personal knowledge of the declarant. See M.R.E. 401, M.R.E. 402, and M.R.E. 602. Thus, with respect to determining whether an appellant meets his burden of demonstrating fourth-prong, Barker prejudice or with respect to reviewing the entire record to determine if a post- trial delay due process violation is harmless beyond a reasonable doubt, a reviewing court must first determine whether post-trial submissions merit consideration. See Allende, 66 M.J. at 145 (assertions in personal affidavit about potential employers’ employment practices not substantiated); Gosser, 64 M.J. at 98 (failed to substantiate any claim of Barker prejudice where, in part, clemency assertions of defense counsel were not based upon personal knowledge); Jones, 61 M.J. at 85 (prejudice established by the appellant’s declaration about post-trial employment difficulties which was substantiated by independent declarations based upon personal knowledge). Bush’s declaration as to the reasons that the particular employer declined to hire him is not based on personal knowledge. See supra at p. 11. As such, his unsupported allegations of employment prejudice have no impact under our totality of the circumstances review.

20 United States v. Bush, 09-0119/MC

Government’s burden to establish that the constitutional

violation was harmless beyond a reasonable doubt may be

difficult to attain. The corollary seems apparent. In those

cases where the record does not reflect Barker prejudice, as a

practical matter, the burden to establish harmlessness may be

more easily attained by the Government.

Under the totality of circumstances in this record, we are

confident that the due process violation was harmless beyond a

reasonable doubt. To find otherwise would essentially adopt a

presumption of prejudice in cases where the appellate court has

found a due process violation as a result of unreasonable post-

trial delay in the absence of Barker prejudice. We have

declined to adopt such a standard in the past and see no need to

alter that position. See Moreno, 63 M.J. at 142 (noting that it

is “unnecessary” to adopt a presumption of prejudice at this

point as the court “can deter these delays and address the

systemic delays we see arising in post-trial and appellate

processing through less draconian measures”); see also Toohey, 63 M.J. at 363 (“we do not presume prejudice based on the length

of the delay alone”).

We have reviewed the totality of the circumstances and the

entire record, and conclude that record reflects that the post-

trial delay due process violation was harmless beyond a

reasonable doubt. As a consequence, we conclude that any error 21 United States v. Bush, 09-0119/MC

by the Court of Criminal Appeals in placing a burden of

production on Bush was harmless beyond a reasonable doubt.

DECISION We affirm the decision of the United States Navy-Marine

Corps Court of Criminal Appeals.

22 United States v. Bush, No. 09-0119/MC RYAN, J., with whom STUCKY, J., joins (concurring in the

judgment):

Relying on this Court’s holding in United States v. Toohey

(Toohey II), the majority accepts the lower court’s holding that

the significant appellate delay in this case violated

Appellant’s Fifth Amendment right to due process. See United

States v. Bush, __ M.J. __, __ (18 & n.8) (C.A.A.F. 2009)

(finding due process violations when “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’” (quoting Toohey II, 63 M.J. 353, 362 (C.A.A.F. 2006))).

The majority then finds that any constitutional error from the

delay was harmless beyond a reasonable doubt because the record

contains insufficient evidence that Appellant was prejudiced by

the delay. Id. at 18-21. Though I agree with the majority that

Appellant is not entitled to relief, and therefore concur in the

judgment, I do so because I do not believe that Appellant’s

Fifth Amendment rights were violated. I write separately

because I think the Court should have accepted the Government’s

request to reconsider our appellate delay due process

jurisprudence. This Court’s apparent ruling in Toohey II should

be abandoned, and we should cease the practice of basing due

process violations on public perception.

The Fifth Amendment states “No person shall be . . . United States v. Bush, No. 09-0119/MC

deprived of life, liberty, or property, without due process of

law.” U.S. Const. amend. V. For convicted servicemembers with

a right to an appeal, this prohibition grants a right to timely

review of their convictions. United States v. Moreno, 63 M.J.

129, 132 (C.A.A.F. 2006). To determine whether this right has

been violated, this Court applies the four factors adopted by

the Supreme Court in Barker v. Wingo, 407 U.S. 514, 530 (1972),

for analyzing alleged violations of the Sixth Amendment Speedy

Trial Clause: (1) the length of the delay; (2) the reasons for

the delay; (3) the appellant’s assertion of his right to a

timely appeal; and (4) the prejudice to the appellant. Moreno, 63 M.J. at 135 ; Toohey v. United States (Toohey I), 60 M.J. 100,

102 (C.A.A.F. 2004).

Our analysis of prejudice related to post-trial appellate

delay considers three interests, each of which is tied to the

delay and the appellant: “‘(1) prevention of oppressive

incarceration pending appeal; (2) minimization of anxiety and

concern of those convicted awaiting the outcome of their

appeals; and (3) limitation of the possibility that a convicted

person’s grounds for appeal, and his or her defenses in case of

reversal and retrial, might be impaired.’” Moreno, 63 M.J. at

138 -39 (quoting Rheuark v. Shaw, 628 F.2d 297 , 303 n.8 (5th Cir.

1980)). Appellant did not allege and the lower court did not

find any prejudice to these interests in this case. United 2 United States v. Bush, No. 09-0119/MC

States v. Bush, 67 M.J. 508, 513 (N-M. Ct. Crim. App. 2008)

(“The appellant does not assert and our review of the record did

not reveal evidence that the appellant has suffered ongoing

prejudice from oppressive incarceration or undue anxiety.”1).

And although Appellant alleged employment prejudice, cf. United

States v. Jones, 61 M.J. 80, 84 (C.A.A.F. 2005) (finding

prejudice where appellant demonstrated that the delay actually

interfered with his ability to find specific post-military

employment), this claim failed because Appellant provided no

“independent evidence to support his claim that lack of a DD

Form 214 impaired his ability to secure employment and did not

demonstrate a valid reason for not doing so.” Bush, __ M.J. at

__ (13).

The absence of prejudice in this case should end the due

process inquiry. But in Toohey II, relied upon by both the

United States Navy-Marine Corps Court of Criminal Appeals (CCA)

and the majority in this case, the Court appeared to recognize a

due process violation even in the absence of prejudice, based on

delay so egregious “it would adversely affect the public’s

perception of the fairness and integrity of the military justice

1 Although the CCA did not explicitly address it, Appellant has not alleged and the record does not indicate any impairment to his appeal or potential retrial.

3 United States v. Bush, No. 09-0119/MC

system.” Toohey II, 63 M.J. at 362.2 The problem is that damage

to the public’s perception of the military justice system, while

unfortunate, has no relation to a deprivation of life, liberty,

or property of an appellant, and does not constitute prejudice

to an appellant.3 “Judges are not free, in defining ‘due

process,’ to impose on law enforcement officials our ‘personal

and private notions’ of fairness and to ‘disregard the limits

that bind judges in their judicial function.’” United States v.

Lovasco, 431 U.S. 783, 790 (1977) (quoting Rochin v. California, 342 U.S. 165, 170 (1952)). In my view, Toohey II’s holding

2 Although the Court may have intended to reinterpret, rather than replace, the Barker factors, see Bush, __ M.J. at __ (19 n.8) (“To clarify, the ‘public perception’ analysis is utilized in quantifying the appropriate weight that is to be given to Barker factors one (length of delay) and two (reasons for delay) when balancing all the factors.”), subsequent courts have nonetheless accepted the Toohey II opinion as a means of finding constitutional violations based only on public perception. See, e.g., United States v. Abdirahman, 66 M.J. 668, 683 (N-M. Ct. Crim. App. 2008) (treating adverse public perception as separate ground for relief); United States v. Bredschneider, 65 M.J. 739, 742 (N-M. Ct. Crim. App. 2007) (“After weighing the four Barker factors, we conclude that the appellant has not suffered a Barker-type post-trial due process violation. However, even without specific prejudice, a due process violation may result if 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.” (quoting Toohey II, 63 M.J. at 362)). If this is not what the Court intended, that is all the more reason to revisit Toohey II. 3 Further, I question whether Appellant has standing to complain of an injury to the public’s perception of the military justice system. Generally, “a litigant must assert his or her own legal rights and interests, and cannot rest a claim to relief on the legal rights or interests of third parties.” Powers v. Ohio, 499 U.S. 400, 410 (1991) (citing Dep’t of Labor v. Triplett, 494 U.S. 715, 720 (1990); Singleton v. Wulff, 428 U.S. 106 (1976)).

4 United States v. Bush, No. 09-0119/MC

impermissibly expands the scope of a purported constitutional

violation beyond the bounds of interests protected by the Fifth

Amendment.

Moreover, the holding in Toohey II permits this Court to

find due process violations without any showing of specific

prejudice to an appellant. 63 M.J. at 359 (stating that “‘no

single [Barker] factor [is] required to find that post-trial

delay constitutes a due process violation’” (quoting Moreno, 63

M.J. at 136 ) (second bracketed interpolation in original)).

Whatever the necessity or sufficiency of a particular Barker

factor, though, and regardless whether there may be the rare and

unusual situation where the prejudice factor can be either

presumed or bypassed entirely, it does not follow that this

Court may apparently substitute public perception as a new

factor to replace a showing of prejudice. This practice puts

our Court at odds with almost all other federal courts to have

considered the issue.4 Indeed, our post-trial-delay due process

4 Seven circuits and the District of Columbia (which also applies Fifth Amendment law) have held that prejudice is a required element of a timely appeal due process violation. See, e.g., United States v. Rodriguez, 259 Fed. App’x 270, 277-78 (11th Cir. 2007); United States v. DeLeon, 444 F.3d 41, 57 (1st Cir. 2006); United States v. Gray, 52 Fed. App’x 650, 654 (6th Cir. 2002); United States v. Wiktor, 146 F.3d 815, 819 (10th Cir. 1998); United States v. Hawkins, 78 F.3d 348, 352 (8th Cir. 1996); United States v. Kimmons, 917 F.2d 1011 , 1014–15 (7th Cir. 1990); United States v. Antoine, 906 F.2d 1379, 1382 (9th Cir. 1990); United States v. Alston, 412 A.2d 351, 357-58 (D.C. 1980). One more circuit has applied a prejudice requirement 5 United States v. Bush, No. 09-0119/MC

jurisprudence is based on the Supreme Court’s Sixth Amendment

speedy trial jurisprudence, which requires a showing of

prejudice to establish a speedy trial violation. Reed v.

Farley, 512 U.S. 349, 353 (1994). “[T]hat necessary ingredient

is entirely missing here.” Id.

Nor is it clear how helpful Toohey II is to appellants in

practice, as it necessarily leads to bizarre scenarios like the

one presented today. First, the CCA decided that Appellant had

failed to establish any constitutionally cognizable prejudice.

Then, despite this failure, the CCA concluded that there was a

due process violation based on public perception. Finally, the

CCA awarded no relief because it was convinced, as this Court

agrees, that the constitutional violation was harmless beyond a

reasonable doubt -- the Government met its burden because

Appellant did not provide independent evidence of his lost

when analyzing the Fourteenth Amendment’s due process protections, see Heiser v. Ryan, 15 F.3d 299, 304 (3d Cir. 1994), and would presumably apply such a requirement in a Fifth Amendment case. Only the Second Circuit appears to find a due process violation without a showing of prejudice, but has then required a showing of prejudice before that violation warrants a remedy. Elcock v. Henderson, 28 F.3d 276, 279 (2d Cir. 1994). The Fourth, Fifth, and District of Columbia Circuits do not appear to have addressed this point directly. However, the Fifth Circuit has frequently stressed the importance of prejudice in analyzing alleged due process violations, calling it “the most important factor,” and emphasizing that it is ordinarily, though perhaps not absolutely, required. United States v. Bermea, 30 F.3d 1539, 1568-69 (5th Cir. 1994). No court relies on public perception as a substitute for prejudice.

6 United States v. Bush, No. 09-0119/MC

employment opportunity.

This reasoning comes dangerously close to shifting onto

Appellant the burden of proving harmlessness. Despite the

assurances of the majority that Appellant “bore no burden of

demonstrating prejudice,” the majority admits that the

Government’s burden was “more readily demonstrate[d]” in the

absence of such evidence. __ M.J. at __ (19, 20); see also id.

at __ (15) (“It is . . . clear that it is solely the

Government’s burden to persuade the court that constitutional

error is harmless beyond a reasonable doubt. We have not

deviated from th[is] black letter principle[] in developing our

post-trial delay, due process jurisprudence.” (citations

omitted)). The reality, then, is that in cases where prejudice

is not part of the basis for the alleged due process violation,

the Toohey II rule arguably shifts the burden to the appellant

in the harmlessness analysis to prove the very prejudice the

Court failed to require in the first place.

This situation could easily be avoided. If we were to

require, like most of the federal circuits, a showing of

prejudice before finding a due process violation, as the Supreme

Court’s speedy trial jurisprudence suggests we should, we would

eliminate this problem: If an appellant submits evidence of

prejudice sufficient to show a constitutional violation, that

evidence will already be part of the record and present for the 7 United States v. Bush, No. 09-0119/MC

Court’s consideration at the harmlessness analysis. This would

not only be cleaner and simpler, but it also would follow the

ordinary model of constitutional inquiry into an alleged due

process violation. See, e.g., Gardner v. California, 393 U.S.

367, 370 (1969) (placing the burden on the petitioner to

convince the appellate court of the error below); Chapman v.

California, 386 U.S. 18, 24 (1967) (requiring “the beneficiary

of a constitutional error to prove beyond a reasonable doubt

that the error complained of did not contribute to the verdict

obtained”); United States v. Harvey, 64 M.J. 13, 25 (C.A.A.F.

2006) (quoting United States v. Brewer, 61 M.J. 425, 432

(C.A.A.F. 2005)).

I would revisit and either clarify or overrule Toohey II,

but respectfully concur in the judgment.

8