Lead Opinion
delivered the opinion of the court.
Bеfore 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,
We see no conflict between Allende and Ginn, as applied by the Court of Criminal Appeals in this ease 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.
PROCEDURAL BACKGROUND
Consistent with his pleas, Bush was convicted of numerous offenses under the Uniform Code of Military Justice (UCMJ).
The casе 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).
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 рeriod of six months from the date of his action.
The Court of Criminal Appeals issued its first opinion in this case on March 11, 2008. United States v. Bush (Bush CCA I),
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 ease; 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,
[Bush’s] declaration asserts he was denied employment by the Costco store in Huntsville, Alabama, three to four years after his trial, specificаlly 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 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,
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,
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 claimsf,]’ ... 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 eases.” In response, the Government 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,
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 deсlined 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.
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,
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,
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,
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 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 Du-Bay hearing.
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.
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,
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,
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,
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,
Despite the different nature of the inquiry into harmless beyond a reasonable doubt where there is a post-trial delay due procеss violation, the burden remains upon
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 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 ease of reversal and retrial, might be impaired.’ ” Moreno,
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,
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 deсlined to adopt such a standard in the past and see no need to alter that position. See Moreno,
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 by the Court of Criminal Appeals in placing a burden оf 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.
Notes
.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.
. 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).
. The convening authority's initial action on November 16, 2000, also complied with the pretrial agrеement. There is no allegation, nor any indication from the record, that the post-trial delay resulted in any period of wrongful incarceration.
. The lower court applied the factors identified in Barker v. Wingo,
. Ginn sets forth a number of factors under which a post-trial evidentiary hearing would not be required.
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 appellants 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 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.
. 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,
. 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.
. 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,
. As noted supra at p. 99, 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 vаlue 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, Barlcer 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,
Concurrence Opinion
joins (concurring in the judgment):
Relying on this Court’s holding in United States v. Toohey (Tookey 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,
The Fifth Amendment states “No person shall be ... deprived of life, liberty, or property, without due process of law.” U.S. Const, amend. V. For convicted service-members with a right to an appeal, this prohibition grants a right to timely review of their convictions. United States v. Moreno,
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) рrevention 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,
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 system.” Toohey II,
Moreover, the holding in Toohey II permits this Court to find due process violations without any showing of specific prejudice to an appellant.
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 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
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 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,
I would revisit and either clarify or overrule Toohey II, but respectfully concur in the judgment.
. 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.
. Although the Court may have intended to reinterpret, rather than replace, the Barker factors, see Bush, 68 MJ. at 103 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. Ab-dirahman,
. 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,
. Seven circuits and the District of Columbia (which also applies Fifth Amendment law) havе held that prejudice is a required element of a timely appeal due process violation. See, e.g., United States v. Rodriguez,