UNITED STATES v. Wilson MEDINA, Gunner’s Mate First Class (E-6), U.S. Coast Guard
Docket No. 1325
UNITED STATES COAST GUARD COURT OF CRIMINAL APPEALS Washington, D.C.
24 September 2010
CGCMG 0261
General Court-Martial convened by Commander, Maintenance and Logistics Command, Atlantic. Tried at Norfolk, Virginia, on 11 March 2009.
Trial Counsel: LT Kismet R. Wunder, USCGR
Assistant Trial Counsel: LT Kelly C. Blackburn, USCGR
Defense Counsel: LT Stuart Kirkby, JAGC, USN
Appellate Defense Counsel: LT Kelley L. Tiffany, USCGR
Appellate Government Counsel: LT Emily P. Reuter, USCG
LT Herbert C. Pell, USCGR
BEFORE
MCCLELLAND, LODGE & KENNEY
Appellate Military Judges
MCCLELLAND, Chief Judge:
Appellant was tried by general court-martial, military judge alone. Pursuant to his pleas of guilty, entered in accordance with a pretrial agreement, Appellant was convicted of one specification of sodomy, in violation of
Before this Court, Appellant asserts that this Court should consider the unreasonable and unexplained post-trial delay in determining the sentence that should be approved under
Post-trial delay
Appellant urges us to grant meaningful relief by setting aside the bad conduct discharge or the entire sentence, on account of unreasonable post-trial delay.
Processing of the record of trial (record or ROT) took place according to the following chronology. This chronology is taken from the memorandum dated 10 September 2009 forwarding the record to Coast Guard Headquarters (CGHQ)1 and from the ancillary documents attached to the record.
| Date | Action | Days elapsed |
|---|---|---|
| 11 Mar 09 | Sentence adjudged | 0 |
| 30 Apr 09 | ROT received by trial counsel from transcriptionist | 50 |
| 18 Jun 09 | ROT sent to military judge | 99 |
| 02 Jul 09 | ROT authenticated by military judge | 113 |
| 08 Jul 09 | Authenticated ROT received by trial counsel | 119 |
| 16 Jul 09 | Staff Judge Advocate’s Recommendation (SJAR) | 127 |
| 16 Jul 09 | SJAR sent to defense counsel | 127 |
| 27 Jul 09 | Defense requests extension to submit clemency materials | 138 |
| 30 Jul 09 | Clemency materials received from Defense | 141 |
| 31 Jul 09 | SJAR addendum | 142 |
| 14 Aug 09 | Convening Authority acknowledges clemency materials | 156 |
| 25 Aug 09 | Convening Authority action | 167 |
| 10 Sep 09 | Memorandum forwarding ROT to CGHQ | 183 |
According to an affidavit supplied by the Government, the record was received at Headquarters on 21 September 2009. Counsel avers that after arrival in Headquarters, the record
Notable periods of post-trial processing are fifty days taken to transcribe the record (for a 218-page transcript), forty-four days between completion of transcription and transmission to the military judge for authentication, twenty-five days after the SJAR addendum before the Convening Authority acted, sixteen days between Convening Authority action and sending the record to Headquarters, and thirty-five days for the record to travel to Headquarters and be referred to this Court. The Memorandum forwarding the record gives no meaningful explanation for these delays, attributing them only to “administrative processing.”
The Court of Appeals for the Armed Forces applies “a presumption of unreasonable delay that will serve to trigger the Barker four-factor analysis where the action of the convening authority is not taken within 120 days of the completion of trial [and] where the record of trial is not docketed by the service Court of Criminal Appeals within thirty days of the convening authority’s action.” United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006). The ”Barker four-factor analysis” comprises consideration of the following four factors to determine whether post-trial delay constitutes a due process violation: “(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.” Id. at 135 (citing Barker v. Wingo, 407 U.S. 514, 530 (1972)).
Appellant claims a due process violation, and the delays in this case are sufficient to raise the presumption. The length of the delays are forty-seven days beyond the 120-day period prescribed by Moreno for convening authority action, and twenty-one days beyond the 30-day period prescribed for referral to this Court. Together, these delays amount to sixty-eight days beyond the Moreno standard, in contrast to the Moreno case itself, where the corresponding delays amounted to 416 days beyond the standard. See id. at 136. In this case the first Barker factor weighs against the Government, but only slightly.
There are no persuasive reasons given for either delay. The second Barker factor weighs against the Government.
Appellant did not assert the right to timely review before the Convening Authority or after the Convening Authority’s action. The third Barker factor does not weigh against the Government.
As to the fourth factor, Moreno identified three sub-factors: oppressive incarceration pending appeal, anxiety and concern, and impairment of ability to present a defense at a rehearing. Moreno, 63 M.J. at 139-41. Both the first and third sub-factors depend upon a successful appeal, which is not present in Appellant’s case as no errors were assigned or discovered by this Court. Concerning anxiety and concern, to be cognizable, it must be “particularized anxiety and concern that is distinguishable from the normal anxiety experienced by prisoners awaiting an appellate decision.” Id. at 140. Appellant claims that he suffered cognizable anxiety as evidenced by episodes of schizophrenia (hallucinations), problems sleeping, and tremors in his hands and legs.
Appellant’s claim of prejudice is founded on his affidavit dated 17 December 2009 and medical records from the period of July to November 2009, which have been attached to the record pursuant to his motion. His clemency request sought reduction of the sentence to confinement from thirteen months to five months. According to his affidavit, he experienced high episodes of anxiety because of delays and the inaction of the government. He also states that he received no information concerning the Convening Authority’s action, which was executed on 25 August 2009, until he heard from his appellate counsel on 21 October 2009. The medical records indicate that he was initially seen (“initially” presumably referring to care while in the confinement facility; he had been seeing a psychiatrist and was taking medications for anxiety and depression before trial (R. at 175-76; Defense Ex. E)) on 7 July 2009, 118 days after he was sentenced, and document variations in his psychiatric state as well as changes in medications through 13 November 2009.
By the Moreno standard, Appellant could expect the Convening Authority to act on his case by the 120-day mark. Given his clemency request for reduction of confinement to five months, favorable action by the Convening Authority might have resulted in release from confinement soon thereafter. One could infer from the fact that Appellant first sought medical attention just before the 120-day mark that his anxiety related to expectation of Convening Authority action, and that any increases in his symptoms were attributable to delay in Convening Authority action. However, since the Convening Authority ultimately did not reduce the confinement, it would be highly speculative to attribute all the anxiety to delay; possibly some anxiety would have persisted even if action had been timely, based on the simple fact of continued confinement.
In light of all the uncertainties in the reasons for Appellant’s need of medical treatment for anxiety, it is not clear that Appellant’s anxiety is distinguishable from the normal anxiety experienced by prisoners awaiting an appellate decision. But it is certainly true that the reported cases do not reflect clinical treatment for anxiety for most prisoners. We will assume that Appellant’s anxiety is, indeed, distinguishable from the normal anxiety experienced by prisoners awaiting an appellate decision; we will consider the fourth Barker factor as weighing against the Government, although not strongly.
At this point, “the four factors are balanced, with no single factor being required to find that post-trial delay constitutes a due process violation.” Moreno, 63 M.J. at 136. The question is just what weight to give the four factors.3
In United States v. Preciado, 67 M.J. 559 (A.F.Ct.Crim.App. 2008), the requirement to register as a sex offender during the post-remand delay, at the end of which the offense requiring registration was set aside, was held to constitute prejudice which, in combination with the other factors, resulted in a due process violation. In that case, as in Moreno itself, “anxiety and concern” was not necessarily prejudice in itself, but became prejudice as a result of favorable action during the review process. Although we have found other military cases where
One aid to our navigation of this issue is found in the federal courts. In United States v. Dreyer, 533 F.2d 112, 116 (3d Cir. 1976), a defendant “experienced severe mental disturbance. She consulted a psychiatrist just after her arrest and was in intensive therapy for acute anxiety and depression until [nine months after indictment]. The psychiatrist‘s report indicates that, during this period, despite continued treatment she was unable to work.” She relapsed when her case was scheduled for trial. Her psychiatrist opined that she had suffered “such pathological stress . . . over such a long time that she now has a deeply disturbed personality pattern.” Id. This prejudice, combined with twenty-nine months of unjustified pretrial delay, led to a finding of violation of the right to speedy trial, using the Barker factors.
In our case, the delay is much shorter than that in Dreyer. The more subjective aspects of our case seem less compelling than in Dreyer as well; as previously noted, Appellant was already under psychiatric treatment, and we cannot be certain how much of his anxiety and concern should be attributed to delay, but surely only a part of it. Appellant has not established a strong prejudice factor. Upon balancing the factors in this case, we find no due process violation. The factors weighing against the Government are not substantial enough to warrant a finding of a due process violation. No relief is owed to Appellant on this account.
We turn now to Appellant’s argument that we should grant sentence relief under United States v. Tardif, which held that we may grant relief for excessive post-trial delay without a showing of prejudice. 57 M.J. 219, 224 (C.A.A.F. 2002). Upon finding unreasonable and unexplained post-trial delay, this Court may consider such delay, along with all the other facts and circumstances, in exercising its responsibilities under
The delay in Convening Authority action was nearly the same in this case as in Greene, even though in this case the Government was on notice of the Moreno standards. Moreover, the delay in this case was completely unexplained. As for the delay in referral to this Court, the Government notes certain components of the delay – eleven days in transit, twenty-four days for copying and scanning – with the implication that they are inherently reasonable. Arguably that implication is untenable after Moreno. In any event, we reject it. We find the delays in both stages of this case unreasonable. We will consider them when conducting our sentence appropriateness review under
In considering any relief to be granted, we do not ignore the fact that the Convening Authority’s action deferred automatic forfeitures of pay and allowances that would otherwise arise by operation of
We will disapprove two months of confinement and reduction of one paygrade, leaving a sentence of confinement for eleven months, reduction to E-2, and a bad-conduct discharge. We urge trial counsels, staff judge advocates and convening authorities to take post-trial timeliness seriously, as they appear not to have done in this case.
Deficient findings
We note that when findings were announced, there were no findings as to the sole specifications under each charge. A guilty finding was announced as to each charge. (R. at 108.)
Decision
We have reviewed the record in accordance with
Judges LODGE & KENNEY concur.
For the Court,
Gail M. Reese
Clerk of the Court