                        UNITED STATES, Appellee

                                    v.

                  Alejandro V. ARRIAGA, Senior Airman
                       U.S. Air Force, Appellant

                              No. 10-0572

                         Crim. App. No. 37439

       United States Court of Appeals for the Armed Forces

                        Argued February 7, 2011

                        Decided April 29, 2011

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

                                 Counsel


For Appellant: Captain Andrew J. Unsicker (argued); Colonel
Eric N. Eklund and Lieutenant Colonel Gail E. Crawford (on
brief); and Major Anthony D. Ortiz.

For Appellee: Gerald R. Bruce, Esq. (argued); Colonel Don M.
Christensen (on brief).

Military Judge:    W. Thomas Cumbie


       This opinion is subject to revision before final publication.
United States v. Arriaga, No. 10-0572/AF

     Judge ERDMANN delivered the opinion of the court.

     Senior Airman Alejandro V. Arriaga was convicted at a

general court-martial with members of housebreaking, as a lesser

included offense of burglary, and one specification of indecent

assault.1   He was sentenced to a dishonorable discharge, four

years of confinement, forfeiture of all pay and allowances, and

reduction to E-1.   The convening authority approved the sentence

and the United States Air Force Court of Criminal Appeals

affirmed the findings but found that the sentence was

inappropriately severe and approved only a bad-conduct

discharge, confinement for two years, forfeiture of all pay and

allowances, and reduction to E-1.    United States v. Arriaga, No.

ACM 37439, 2010 CCA LEXIS 171, at *9, 2010 WL 2265581, at *25-

*26, (May 7, 2010).

     Before this court Arriaga presents two discrete arguments:

his conviction for housebreaking must be set aside as

housebreaking is not a lesser included offense of burglary under




1
  Arriaga was charged with one specification of aggravated sexual
assault, one specification of burglary, three specifications of
indecent assault, one specification of assault consummated by a
battery, and one specification of attempted rape. The attempted
rape specification and one specification of indecent assault
were dismissed prior to trial. Arriaga was found not guilty of
all the remaining specifications, but was found guilty of
housebreaking as a lesser included offense of burglary and one
specification of indecent assault.




                                 2
United States v. Arriaga, No. 10-0572/AF

United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010); and, that

he be granted additional confinement credit as relief for being

deprived of his right to timely appellate review.2    We hold that

housebreaking is a lesser included offense of burglary.    We

further hold that Arriaga was denied his due process right to

speedy appellate review and therefore reverse the decision of

the United States Air Force Court of Criminal Appeals and remand

the case for further action consistent with this opinion.




2
    We granted review of the following issues:

       I.    Whether, in light of this court’s recent decision
             in United States v. Jones, 68 M.J. 465, 468
             (C.A.A.F. 2010), the Appellant’s conviction for
             housebreaking must be set aside because the
             military judge issued erroneous and misleading
             instructions supporting housebreaking as an
             available lesser-included offense to the original
             burglary charge.

       II.   Whether Appellant was deprived of his right to
             speedy post-trial review when over 243 days
             elapsed between the date of sentencing and the
             date the convening authority took action and
             whether the Air Force Court of Criminal Appeals
             erroneously held that any delay was harmless
             beyond a reasonable doubt despite it approving
             only two years of Appellant’s four-year sentence
             to confinement.

       United States v. Arriaga, 69 M.J. 432, 432-33 (C.A.A.F.
       2010) (order granting review).




                                   3
United States v. Arriaga, No. 10-0572/AF

                              DISCUSSION

A.      Lesser included offense

        Arriaga lived in a duplex and a married couple, JC and DC,

lived in the adjoining unit.      Arriaga was friendly with the

couple and they would occasionally attend his parties.       On the

evening in question JC, along with DC and her friend Holly, were

watching football at their home.        Arriaga stopped by and invited

the group to go to a bar with him, but they declined and he

left.    Later, another friend, Will, arrived and the group began

to drink alcoholic beverages.     DC drank to the point where she

said she was “buzzing, maybe on the verge of being drunk.”3

Later in the evening the group began to watch a DVD in the

living room.    One by one everyone except Will fell asleep in the

living room.    At some point Will went outside to call a friend

on his cell phone and have a cigarette.       Will’s friend did not

answer his call so Will went over to talk with Arriaga, who was

outside his duplex unit visiting with friends.       Arriaga asked

him where the others were and Will told him they were all

asleep.    Will’s friend then returned his call and Will left

Arriaga, returned to DC and JC’s front yard, and talked with his

friend on his cell phone.




3
  DC also testified that she took prescription medication for
bipolar disorder, which amplified the alcohol’s effects.



                                    4
United States v. Arriaga, No. 10-0572/AF

       DC and JC’s apartment had two entrances, a back door with a

deadbolt, which was generally locked, and the front door.   Will

testified that when he went outside for a smoke and to call his

friend the front door was unlocked.   After talking to his friend

in the front yard for about fifteen minutes, Will saw a shadow

moving inside the house and started to go back inside.    When he

found the front door locked, he knocked and was surprised when

Arriaga opened the door and rushed out of the house.   Will found

DC on the loveseat where she had fallen asleep, beginning to

cry.   DC testified that she awoke to find Arriaga inside the

house with his hand inside her pants and underneath her

underwear, rubbing her vagina and ultimately penetrating her

with his fingers.   DC reported the incident to Security Forces

the morning following the incident.   DC testified that she and

her husband did not have an “open-door policy” with Arriaga and

she had not invited nor allowed him in the house that night.

       The charges of aggravated sexual assault and burglary arose

from this incident.   At trial, without objection, the military

judge instructed court members on housebreaking as a lesser

included offense of burglary.4   As noted, Arriaga was found not

guilty of aggravated sexual assault as well as burglary, but

guilty of the lesser included offense of housebreaking.



4
  The military judge also instructed court members on unlawful
entry as a lesser included offense to burglary.

                                  5
United States v. Arriaga, No. 10-0572/AF

     Relying on Jones, Arriaga argues that housebreaking is not

a lesser included offense of burglary under the elements test.

Arriaga argues that the elements of the two offenses are not the

same because the intent required for housebreaking is not as

limited as that required for burglary.   Arriaga goes on

to argue that even if housebreaking is a lesser included offense

of burglary, the evidence in this case did not fairly raise the

offense of housebreaking.   The Government responds that the

offense of housebreaking was reasonably raised by the evidence

and that under United States v. Alston, 69 M.J. 214 (C.A.A.F.

2010), comparison of the statutory elements as charged in the

specification is allowed and that under the language of the

specification charged here, housebreaking is a lesser included

offense of burglary.

     “Whether an offense is a lesser included offense is a

question of law we review de novo.”   United States v. Miller, 67

M.J. 385, 387 (C.A.A.F. 2009) (citations omitted).   As there was

no objection to the instruction at trial, we review for plain

error.   United States v. Maynard, 66 M.J. 242, 244 (C.A.A.F.

2008).   Plain error occurs when (1) there is error, (2) the

error is plain or obvious, and (3) the error results in material

prejudice.   Id.

     Article 79, UCMJ, states that “[a]n accused may be found

guilty of an offense necessarily included in the offense charged



                                 6
United States v. Arriaga, No. 10-0572/AF

or of an attempt to commit either the offense charged or an

offense necessarily included therein.”    Article 79, UCMJ, 10

U.S.C. § 879 (2006); see also Jones, 68 M.J. at 468.      This court

applies the elements test to determine whether one offense is a

lesser included offense of another.    Id.   “Under the elements

test, one compares the elements of each offense.    If all of the

elements of [housebreaking] are also elements of [burglary],

then [housebreaking] is [a lesser included offense] of

[burglary].”    Id. at 470.   The two offenses need not have

“identical statutory language.”    Alston, 69 M.J. at 216.

“Instead, the meaning of the offenses is ascertained by applying

the ‘normal principles of statutory construction.’”      Id.

(citation omitted).

     The elements of burglary are:

          (1)    That the accused unlawfully broke and
                 entered the dwelling house of another;

          (2)    That both the breaking and entering
                 were done in the nighttime; and

          (3)    That the breaking and entering were
                 done with the intent to commit an
                 offense punishable under Article 118
                 through 128, except Article 123a.

Manual for Courts-Martial, United States pt. IV, para. 55.b.

(2008 ed.) (MCM); see also United States v. Thompson, 32 M.J.

65, 66 (C.M.A. 1991).   The elements of housebreaking are:

          (1)    That the accused unlawfully entered a
                 certain building or structure of a
                 certain other person; and



                                   7
United States v. Arriaga, No. 10-0572/AF

           (2)   That the unlawful entry was made with
                 the intent to commit a criminal offense
                 therein.

MCM pt. IV, para 56.b.; see also United States v. Davis, 56 M.J.

299, 300 (C.A.A.F. 2002).

     The burglary specification in the charge sheet alleged that

Arriaga:

     did, at or near Sumter, South Carolina, between on or
     about 6 October 2007 and on or about 7 October 2007,
     in the nighttime, unlawfully break and enter the
     dwelling house of [DC], with the intent to commit an
     aggravated sexual assault therein.

     Regardless of whether one looks strictly to the statutory

elements or to the elements as charged, housebreaking is a

lesser included offense of burglary.   Comparing the statutory

elements, it is impossible to prove a burglary without also

proving a housebreaking.    Furthermore, the offense as charged in

this case clearly alleges the elements of both offenses.

     Nonetheless, Arriaga argues that housebreaking is not a

lesser included offense as the second element of housebreaking

is broader than the corresponding element in burglary.     He notes

that under burglary the intent required is limited to committing

one of the offenses listed under Articles 118 through 128 in the

UCMJ, excluding Article 123a, while the intent required in

housebreaking is not limited to any specific offenses and

requires only that there be intent to commit any criminal

offense.   Arriaga essentially argues that since an element of




                                  8
United States v. Arriaga, No. 10-0572/AF

housebreaking can be proven by establishing the intent to commit

an offense other than those listed in the third element of

burglary, it cannot be a lesser included offense.

     The fact that there may be an “alternative means of

satisfying an element in a lesser offense does not preclude it

from being a lesser-included offense.”      United States v.

McCullough, 348 F.3d 620, 626 (7th Cir. 2004); see also United

States v. Alfisi, 308 F.3d 144, 152 n.6 (2d Cir. 2002); Rutledge

v. United States, 517 U.S. 292, 300 (1996). Here the “intent”

element of burglary was charged as the intent to commit an

offense under Article 120, UCMJ.       That charging language also

satisfies the “intent” element of housebreaking (intent to

commit a criminal offense).   While in another case it may be

possible to prove a housebreaking offense by proving the intent

to commit a criminal offense not designated in the third element

of burglary, that is not the offense charged in this case.      The

offense as charged included all of the elements of housebreaking

and all of those elements are also elements of burglary.

Housebreaking is therefore a lesser included offense of

burglary.

     Having determined that housebreaking is a lesser included

offense of burglary, we turn to Arriaga’s argument that the

evidence did not raise the offense of housebreaking and the

military judge erred in instructing on that offense.      “A



                                   9
United States v. Arriaga, No. 10-0572/AF

military judge has a sua sponte duty to instruct the members on

lesser included offenses reasonably raised by the evidence.”

United States v. Upham, 66 M.J. 83, 87 (C.A.A.F. 2008).     Having

reviewed the entire record, we conclude that the evidence

clearly raised the offense of housebreaking and it was not error

for the military judge to provide an instruction to the members

on that offense.

B.   Post-trial delay

     Arriaga next argues that he was prejudiced by the delay

between the completion of his trial and the convening

authority’s action.   The Government responds that the delay was

neither unreasonable nor prejudicial.   The Government goes on to

argue that even if there was error, it was harmless beyond a

reasonable doubt and in any event, no meaningful relief is

available.

     Whether an appellant has been deprived of his due process

right to a speedy appellate review is a question of law we

review de novo.    United States v. Moreno, 63 M.J. 129, 135

(C.A.A.F. 2006).   To determine this we balance the four

Barker/Moreno factors:5   “(1) the length of the delay; (2) the

reasons for the delay; (3) the appellant’s assertion of the


5
  The court adopted the factors set forth Barker v. Wingo, 407
U.S. 514, 530 (1972), noting that it is not limited to the Sixth
Amendment context, but is also utilized “for reviewing post-
trial delay due process claims.” Moreno, 63 M.J. at 135.



                                 10
United States v. Arriaga, No. 10-0572/AF

right to timely review and appeal; and (4) prejudice.”    Id.

(citations omitted).   No single factor is required, but a

facially unreasonable length of delay triggers the full

analysis.   Id. at 136.

     The post-trial delay arguments raised in this case compel a

brief review of this court’s recent appellate delay decisions

before we turn to an analysis of the delay in Arriaga’s case.

While the court has addressed appellate delay issues since 1974,6

the most recent series of cases commenced in 2003.   In Diaz v.

Judge Advocate General of the Navy, 59 M.J. 34, 37-38 (C.A.A.F.

2003), the court held that an accused has a constitutional due

process right to a timely “full and fair review of his findings

and sentence.”   With the Diaz decision, the court began to

address a resurgence of appellate delay cases.7

     In Moreno we held that “our confidence that [the existing]

procedural protections would suffice to ensure the speedy post-



6
  Appellate delay cases decided by the court from 1974 through
2002 included: Dunlap v. Convening Authority, 23 C.M.A. 135, 48
C.M.R. 751 (1974); United States v. Banks, 7 M.J. 92 (C.M.A.
1979); United States v. Clevidence, 14 M.J. 17 (C.M.A. 1982);
United States v. Dunbar, 31 M.J. 70 (C.M.A. 1990); United States
v. Hock, 31 M.J. 334 (C.M.A. 1990); United States v. Hudson, 46
M.J. 226 (C.A.A.F. 1997); United States v. Williams, 55 M.J. 302
(C.A.A.F. 2001); United States v. Tardif, 57 M.J. 219 (C.A.A.F.
2002).
7
  Toohey v. United States, 60 M.J. 100, 104 (C.A.A.F. 2004);
United States v. Rodriguez, 60 M.J. 239, 256 (C.A.A.F. 2004);
United States v. Jones, 61 M.J. 80, 84-86 (C.A.A.F. 2005);
Moreno, 63 M.J. 129 (C.A.A.F. 2006).

                                11
United States v. Arriaga, No. 10-0572/AF

trial and appellate rights of servicemembers has been eroded.”

63 M.J. at 142.    In that case the court prospectively adopted “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.”    Id.   The Government, of course, has the opportunity to

rebut the presumption in the second Barker/Moreno factor,

“reasons for the delay.”    See id. at 142.

     Subsequent cases have addressed issues which were not

raised in Moreno.     Even in the absence of specific prejudice, a

constitutional due process violation still occurs if, “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.”   United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F.

2006).    Relief in such cases is provided unless this court is

convinced that the post-trial delay was harmless beyond a

reasonable doubt.    United States v. Allison, 63 M.J. 365, 370

(C.A.A.F. 2006).    Furthermore, the court may assume a due

process violation and proceed straight to the harmless beyond a

reasonable doubt analysis.    Id.    Finally, even in instances

where post-trial delay was not harmless beyond a reasonable

doubt, the court cannot provide relief where “there is no

reasonable, meaningful relief available.”     United States v.



                                    12
United States v. Arriaga, No. 10-0572/AF

Rodriguez-Rivera, 63 M.J. 372, 386 (C.A.A.F. 2006).8   We now turn

to the Barker/Moreno factors in Arriaga’s case.

1. Length of the delay

     Before triggering a full analysis under the Barker/Moreno

factors, the post-trial delay must first be facially

unreasonable.   Moreno, 63 M.J. at 136.   As noted, a delay of 120

days or more between the completion of trial and the convening

authority’s action is presumed to be facially unreasonable.     Id.

at 142.

     Arriaga’s court-martial was completed on August 28, 2008.

It took the court reporter eighty-two days to complete the

record of trial.   It then took trial counsel eighty days to

authenticate the record of trial (162 days after trial).   It

took the military judge twenty-five days to authenticate the

record of trial (187 days after trial).    The convening authority

took his action twenty-six days later, 243 days after trial.

The 243-day period from the conclusion of trial to the convening

authority’s action, while not as extreme as some periods of

delay this court has dealt with, is not de minimis.    The delay

is unreasonable on its face and therefore triggers the full

Barker/Moreno analysis.


8
  Between April 2005 and September 2006 this court received and
decided a total of fifty-nine appellate due process delay cases
as Moreno trailer cases. While the court still sees appellate
due process cases, the number and severity has decreased
significantly in recent years.

                                13
United States v. Arriaga, No. 10-0572/AF

     Before proceeding to the full analysis, however, it is

necessary to clarify exactly what triggers the start of the

appellate delay clock.   In its argument and brief the Government

assumed, apparently based on the 120-day presumption in Moreno,

that the appellate delay clock did not start on the date the

trial concluded, but rather on the 121st day after trial.    As a

result of this erroneous assumption, the Government based its

entire argument on a 123-day delay rather then the actual 243-

day delay.   As the thrust of the Moreno decision was to

encourage compliance with appellants’ due process rights to

speedy appellate processing, it is disconcerting that the

Government now reads the Moreno 120-day period as a “free”

period in which no time delay is computed.   To ensure that there

are no further misunderstandings, for this period of appellate

delay, the clock starts to run the day that the trial is

concluded and stops when the convening authority completes his

action.9




9
  This case concerned the delay between trial and the convening
authority’s action. Moreno also addressed delay in the period
between the convening authority’s action and filing at the
appropriate court of criminal appeals as well as the period
between filing at the court of criminal appeals and issuance of
the decision. 63 M.J. at 142. Needless to say the time periods
that establish a presumption of unreasonableness in those
circumstances do not establish a “free” period in which no delay
is computed.

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United States v. Arriaga, No. 10-0572/AF

2.   Reasons for the delay

      As noted, the 243-day delay between the completion of trial

and the convening authority’s action is presumptively

unreasonable.   However, the Government may overcome this

presumption by providing legitimate reasons for the delay.    The

Government argues that it “exercised due diligence” in preparing

the record of trial while dealing with “two deployed senior

captains, a pregnant trial counsel who reviewed the transcript

while on maternity leave, inexperienced remaining captains in

the office, a very heavy case load, and this fully-litigated 8-

volume record of trial.”

      We have held that personnel and administrative issues, such

as those raised by the Government in this case, are not

legitimate reasons justifying otherwise unreasonable post-trial

delay.   See, e.g., Moreno, 63 M.J. at 137 (“To allow caseloads

to become a factor in determining whether appellate delay is

excessive would allow administrative factors to trump the

Article 66 and due process rights of appellants.” (quoting Diaz,

59 M.J. at 35)); Toohey, 63 M.J. at 360 (noting that timely

preparation of the record is a government responsibility).

Since the record provides no legitimate reason for the delay in

the convening authority’s action, this factor weighs against the

Government.




                                15
United States v. Arriaga, No. 10-0572/AF

3.   Assertion of the right to a timely review and appeal

      This factor requires the court to examine whether Arriaga

objected to the delay in any way or otherwise asserted his right

to a timely review.   Arriaga did not raise the appellate delay

issue until he was at the Court of Criminal Appeals.    However,

“[t]he obligation to ensure a timely review and action by the

convening authority rests upon the Government and [Arriaga] is

not required to complain in order to receive timely convening

authority action.”    Moreno, 63 M.J. at 138 (citing United States

v. Bodkins, 60 M.J. 322, 323-24 (C.A.A.F. 2004)).     While this

factor does weigh against Arriaga, it does so only slightly.

See id. (stating that the government bears “the primary

responsibility for speedy processing”).

4.   Prejudice

      “‘In the case of appellate delay, prejudice should be

assessed in light of the interests of those convicted of crimes

to an appeal of their convictions unencumbered by excessive

delay.’”   Id. (quoting Rheuark v. Shaw, 628 F.2d 297, 303 n.8

(5th Cir. 1980)).    Those interests are:   “‘(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.’”    Id. at



                                 16
United States v. Arriaga, No. 10-0572/AF

138-39 (quoting Rheuark, 628 F.2d at 303 n.8).    Arriaga argues

that he suffered prejudice because of oppressive incarceration

as well as his anxiety and concern.    We address his claims in

inverse order.

a.   Anxiety and concern

     An appellant must demonstrate a “particularized anxiety or

concern that is distinguishable from the normal anxiety

experienced by prisoners awaiting an appellate decision.”

Moreno, 63 M.J. at 140.    Because of his impending sex offender

registration, Arriaga argues that the delay resulted in

spontaneous anxiety attacks and that “this impending stigma”

unreasonably burdened his aspirations to be a firefighter, as

well as his ability to fully interact with his son.    The

Government responds that Arriaga has failed to connect any

anxiety with the delay in this case.

     Since the underlying conviction in this case remains in

force, Arriaga must still register as a sex offender regardless

of the delay.    As a result Arriaga cannot show that the delay

caused prejudice in regard to his impending sex offender

registration.    See Toohey, 63 M.J. at 361.   Arriaga has

therefore failed to demonstrate that he has suffered any

particularized anxiety or concern.




                                 17
United States v. Arriaga, No. 10-0572/AF

b.   Oppressive incarceration pending appeal

     To prevail on a claim of unreasonable post-trial delay

alleging oppressive incarceration, Arriaga must first succeed on

a substantive claim in this court or the court below.    Moreno,

63 M.J. at 139 (stating that an appellant must succeed in a

substantive claim); Rodriguez, 60 M.J. at 256 (noting that a

successful claim can occur in this court or the court below).

Sentence appropriateness relief provides an appellant with

substantive relief for the purposes of post-trial delay.    See

Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2006).

     On August 28, 2008, the court-martial sentenced Arriaga to

four years of confinement and credited him for 156 days of

pretrial confinement.   Arriaga asserts that his initial maximum

release date would have been March 25, 2012.10    In its decision

dated May 7, 2010, the Court of Criminal Appeals found that

Arriaga’s sentence for a conviction of housebreaking was

inappropriately severe and approved only a two-year period of

confinement.   2010 CCA LEXIS 171, at *25-*26, 2010 WL 2265581,

at *9.   As a result of the revised sentence, Arriaga asserts

that his maximum release date became March 25, 2010.    Arriaga

was released on May 14, 2010, one week after the decision of the

Court of Criminal Appeals.   As a result of the reduction in


10
  The Government does not dispute the calculations of these
dates.



                                18
United States v. Arriaga, No. 10-0572/AF

sentence, Arriaga spent fifty-one days in confinement beyond his

adjusted maximum release date.   Arriaga argues that had the

post-trial processing been completed in a timely manner, the

Court of Criminal Appeals would have issued its decision before

his revised release date and he would not have spent an

additional fifty-one days in prison.

      If this case had been processed within the timelines set

forth in Moreno, assuming it would take the Court of Criminal

Appeals approximately the same period of time to issue their

decision as they initially took in this case, the decision would

have been issued prior to Arriaga’s revised maximum release

date.11   As a result, Arriaga has suffered specific prejudice in

the form of oppressive incarceration as a result of the post-

trial delay.

5.   Balancing the Barker/Moreno factors

      The unreasonable length of the delay, the lack of

legitimate reasons advanced by the Government for the delay, and

the specific prejudice suffered by Arriaga as a result of

oppressive incarceration all weigh against the Government.

Arriaga’s failure to assert his right to timely post-trial

review weighs against him, but only slightly.   Therefore, our

balancing of the four Barker/Moreno factors leads us to conclude


11
  The Court of Criminal Appeals issued its decision well within
the eighteen-month period established in Moreno. See Moreno, 63
M.J. at 142.

                                 19
United States v. Arriaga, No. 10-0572/AF

that the Government deprived Arriaga of his due process right to

speedy review and appeal.

     Arriaga has asked for an award of additional confinement

credit as a remedy for this violation.    In Moreno, this court

provided a nonexclusive list of relief available to reviewing

courts depending on the circumstances of individual cases:

     (a) day-for-day reduction in confinement or
     confinement credit; (b) reduction of forfeitures;
     (c) set aside of portions of an approved sentence
     including punitive discharges; (d) set aside of
     the entire sentence, leaving a sentence of no
     punishment; (e) a limitation upon the sentence
     that may be approved by a convening authority
     following a rehearing; and (f) dismissal of the
     charges and specifications with or without
     prejudice.

Id. at 143.   Rather than direct specific relief, we instead

remand this case to the Court of Criminal Appeals for it to

apply its broad powers to fashion whatever relief, if any, it

deems appropriate.   See Toohey, 60 M.J. at 103-04 (recognizing

the unique and broad powers of the Courts of Criminal Appeals to

fashion appropriate relief).

                               DECISION

     The decision of the United States Air Force Court of

Criminal Appeals is reversed.    The record is returned to the Air

Force Judge Advocate General for remand to the Court of Criminal

Appeals for action consistent with this opinion.




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United States v. Arriaga, No. 10-0572/AF


     STUCKY, Judge, with whom RYAN, Judge, joins (concurring in

part and dissenting in part and in the result):

     I concur in the majority’s opinion holding that burglary

under Article 129, Uniform Code of Military Justice (UCMJ), 10

U.S.C. § 929 (2006), always constitutes the offense of

housebreaking under Article 130, UCMJ, 10 U.S.C. § 930 (2006),

and therefore that housebreaking is necessarily included in --

and is a lesser included offense of -- the offense of burglary

under the elements test of United States v. Jones, 68 M.J. 465

(C.A.A.F. 2010).   See United States v. Arriaga, ___ M.J. ___ (3-

10) (C.A.A.F. 2011).   However, I disagree with the majority’s

analysis of Issue II -- whether Appellant was deprived of his

right to speedy post-trial review -- and would hold that

Appellant’s due process rights were not violated and would

therefore affirm the decision of the United States Air Force

Court of Criminal Appeals (CCA).

                          I.   Background

     Appellant was sentenced on August 28, 2008.   During

sentencing proceedings, Appellant was awarded 156 days of

pretrial confinement credit.   The first court reporter began

transcribing the record of trial on September 26, 2008, and

continued to do so until November 17, 2008.   The second court

reporter began transcribing the rest of the record of trial on

November 19, 2008, and finished on December 15, 2008.    The
United States v. Arriaga, No. 10-0572/AF


record was then reviewed for accuracy and signed by trial

counsel on February 5, 2009, and by defense counsel.      On January

30 and February 5, 2009, the record was sent to the military

judge; on March 2, 2009, the military judge authenticated the

record.   The staff judge advocate (SJA) completed his

recommendation on March 9, 2009, and presented it to the

convening authority.   On March 25, 2009, Appellant submitted a

clemency petition pursuant to Rules for Court-Martial (R.C.M.)

1105 and 1106, with multiple exhibits, labeled A through BW.         On

April 23, 2009, the SJA completed an addendum in which he

provided the convening authority with advice regarding

Appellant’s clemency submission.       On April 27, 2009, 243 days

after Appellant was sentenced, the convening authority took

action in Appellant’s case.

     On May 14, 2009, Appellant’s case was docketed with the Air

Force court administrative staff and a date was set for hearing

before the CCA.   While pending before the CCA, defense counsel

twice, on October 15, 2009,1 and on December 3, 2009, requested

thirty-day enlargements of time to submit a brief, citing as

reasons for the request that the record of trial was 820 pages

long, and that there were 11 prosecution exhibits, 60 defense

1
  According to defense counsel’s assertion in the document
regarding the timeline of the case, October 15 should have been
the filing date. However, this document is also stamped with



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United States v. Arriaga, No. 10-0572/AF


exhibits, and 57 appellate exhibits.          Both of these enlargement

motions were granted.

     On May 7, 2010, the CCA reduced Appellant’s sentence to two

years of confinement from four and otherwise affirmed.         On May

10, the Government filed a motion seeking reconsideration, which

the CCA denied on May 12.    On May 14, 2010, Appellant was

released from confinement.

                              II.       Law

     The majority is of course correct in holding that a

servicemember has a due process right under the Fifth Amendment

“to a timely ‘full and fair review of his findings and

sentence.’”   Arriaga, __ M.J. at __ (11) (citation omitted);

accord United States v. Moreno, 63 M.J. 129, 132 (C.A.A.F.

2006); United States v. Bush, 68 M.J. 96, 105 (C.A.A.F. 2009)

(Ryan and Stucky, JJ., concurring in the judgment).         In order to

determine whether this right has been violated, this Court

applies the Supreme Court’s Sixth Amendment, Speedy Trial Clause

jurisprudence, including, when appropriate, the factor analysis

of Barker v. Wingo, 407 U.S. 514 (1972).          See Moreno, 63 M.J. at

135; Bush, 68 M.J. at 105 (Ryan and Stucky, JJ., concurring in

the judgment).




the date “November 3, 2009,” though the significance of this
stamp is unexplained.

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United States v. Arriaga, No. 10-0572/AF


        Here my analysis diverges from that of the majority.

Before a reviewing court will apply the Barker factors, “an

accused must allege that the [relevant] interval . . . has

crossed the threshold dividing ordinary from ‘presumptively

prejudicial’ delay.”    Doggett v. United States, 505 U.S. 647,

651-52 (1992) (noting that, “by definition,” an accused cannot

complain that he has been denied speedy processing if his case

has “in fact, [been] prosecuted . . . with customary

promptness”).    Whether a delay is “presumptively prejudicial” is

necessarily dependent upon the peculiar circumstances of the

case.    See id.; Barker, 407 U.S. at 530-31; United States v.

Thompson, 68 M.J. 308, 315 (C.A.A.F. 2010) (Stucky, J.,

concurring in the result).    A showing of presumptively

prejudicial delay does not end the inquiry.    It merely

“trigger[s] a speedy trial analysis” under the Barker factors.

Doggett, 505 U.S. at 651.     However, “[a] showing of prejudice is

required to establish a violation of the Sixth Amendment Speedy

Trial Clause.”    Reed v. Farley, 512 U.S. 339, 353 (1994); Bush,

68 M.J. at 106-07 (Ryan and Stucky, JJ., concurring in the

judgment); accord Taylor v. Roper, 561 F.3d 859, 863 (8th Cir.

2009) (quoting Reed, 512 U.S. at 353).     But see United States v.

Dowdell, 595 F.3d 50, 60 (1st Cir. 2010) (stating that prejudice

is not required, without addressing the application of Reed).




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United States v. Arriaga, No. 10-0572/AF


      In applying Sixth Amendment Speedy Trial Clause

jurisprudence to Fifth Amendment due process claims regarding

review of court-martial convictions, the majority has abandoned

three fundamental principles underlying that jurisprudence:        (1)

that a showing of presumptive prejudice sufficient to trigger

Barker analysis be made on the particular circumstances of the

case; (2) that the judiciary lacks the “constitutional basis” to

engage in “legislative or rulemaking activity” in the context of

a right to a speedy trial, see Barker, 407 U.S. at 523; and (3)

that the accused must demonstrate prejudice resulting from the

delay.

      In Moreno, the Court rejected and denounced as “draconian”

the Supreme Court’s method of requiring a showing of presumptive

prejudice -- that the delay in an accused’s case was longer than

it should have been -- considering the circumstances, in order

to trigger full Barker analysis.       Moreno, 63 M.J. at 142

(explaining that “less draconian” measures would, at least for

the time being, be sufficient to “deter . . . delays”).         In its

place, the Moreno court established a “presumption of

unreasonable delay” that, like the “draconian” presumptively

prejudicial delay, serves both “to trigger the four-part Barker

analysis,” and also to “satisfy[ ] the first Barker factor.”

Id.   Compare id., with Doggett, 505 U.S. at 651-52; Barker, 407

U.S. at 530-31.


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United States v. Arriaga, No. 10-0572/AF


     The Moreno court’s presumption of unreasonable delay

ignores the Supreme Court’s requirement that a civilian court

must consider allegations of improper delay in the context of

the particular circumstances.   In place of that requirement, the

Moreno court established a fixed time period for all cases:     the

convening authority must act within 120 days after the date of

the completion of trial.   63 M.J. at 142.   The majority’s view

that a presumption of unreasonable delay arises whenever the

convening authority has not acted within 120 days of the

completion of trial is simply arbitrary.     There is no reason to

expect that a fixed period of post-trial delay should trigger

heightened review regardless of the length of the trial record

or other factors, such as whether the case involves a simple,

judge alone plea of guilty to a single specification crime such

as wrongful use of cocaine, or, for example, a contested case

heard by a panel involving premeditated murder, multiple

conspiracies and co-accuseds, and the possibility of the death

penalty.   See Barker, 407 U.S. at 530; Thompson, 68 M.J. at 315

(Stucky, J., concurring in the result).

     Second, just as the Barker court refused to engage in

“legislative or rulemaking activity” in order to remedy the

recurring problem of delay in the civilian context, so too the

Moreno court should have rejected such an approach in the

military context.   Compare Barker, 407 U.S. at 523, with Moreno,


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United States v. Arriaga, No. 10-0572/AF


63 M.J. at 152 (Crawford, J., dissenting in part and concurring

in part and in the result) (noting that the United States Court

of Appeals for the Armed Forces “is not a rulemaking body,” and

that “[t]he Court should leave the rulemaking function where it

belongs -- to the executive and legislative branches”).

     Finally, the majority has also abandoned a third

fundamental requirement of the Supreme Court’s speedy trial

jurisprudence:   that, the accused must, in most cases, show

prejudice.   Bush, 68 M.J. at 105-06 (Ryan and Stucky, JJ.,

concurring in the judgment) (citing Reed, 512 U.S. at 353).     In

United States v. Toohey, the majority determined that, despite a

complete lack of prejudice, an accused’s due process rights can

nonetheless be violated on the basis of public perception.     63

M.J. 353, 362 (C.A.A.F. 2006).    I continue to believe that “we

should cease the practice of basing due process violations on

public perception.”   Bush, 68 M.J. at 105 (Ryan and Stucky, JJ.,

concurring in the judgment).    This is not to say that excessive

delay may not be prejudicial, depending, of course, on the facts

and circumstances of the case.    Normally, though, prejudice will

be demonstrated pursuant to Barker.     Cf. Reed, 512 U.S. at 353

(citing Barker, 407 U.S. at 530).

                         III.    Application

     Considering the particular facts of this case, including

that Appellant was charged with burglary as well as aggravated


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United States v. Arriaga, No. 10-0572/AF


sexual assault, assault consummated by a battery, and multiple

allegations of indecent assault against multiple victims, that

the trial involved testimony provided by seven witnesses, that

the trial record was 820 pages long, that trial counsel was on

maternity leave for part of the post-trial review, that

Appellant submitted a clemency petition for consideration, and

that the CCA’s decision was delayed by two defense motions based

on the complexity of the case, I would find that the 243-day

delay between the completion of trial and the convening

authority’s action does not give rise to a presumption of

prejudice triggering full Barker factor analysis.   Having failed

to make this initial showing, Appellant’s rights were not

violated.

     However, even if Appellant had made a showing of

presumptive prejudice sufficient to trigger full Barker

analysis, Appellant has failed to demonstrate prejudice in fact.

“Our analysis of prejudice” in the context of post-trial delay

considers three interests:

     “(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’s claim of prejudice



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United States v. Arriaga, No. 10-0572/AF


is based on the first two interests.    He argues that he was

oppressively incarcerated and alleges that he experienced

anxiety.

       Appellant’s claim that he was oppressively incarcerated is

speculative at best.    When Appellant was sentenced on August 28,

2008, he was sentenced to four years of confinement.    When

arguing his case before the CCA, Appellant raised the same

speedy trial claim this Court now addresses regarding the delay

in the convening authority’s action.    On May 7, 2010, the CCA

reduced Appellant’s sentence of confinement from four years to

two.   According to Appellant’s calculations, the CCA’s judgment

meant that he should have been released on March 25, 2010,

forty-four days prior to the CCA’s judgment.2   On May 14, 2010,

just two days after the CCA denied the Government’s motion for

reconsideration, Appellant was released.    Appellant also claims

that he was due 108 days of good conduct time credit on the

basis of Air Force and Department of Defense regulations.      As a

result, Appellant claims that the combined effect of the CCA’s

decision and the 243-day delay between completion of trial and

action by the convening authority meant that he had been, in

total, confined for 159 days longer than he should have been.


2
  Because Appellant   directs this Court’s attention to the CCA’s
judgment as a cause   for granting relief, it is of note that
Appellant requested   and was granted two enlargements of time of
thirty days each to   submit his brief at the CCA.

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United States v. Arriaga, No. 10-0572/AF

     Appellant’s claim of prejudice due to oppressive

incarceration must fail.   To begin with, Appellant’s claim that

he is due 108 days of good conduct time credit must be rejected.

This Court has neither the jurisdiction to review this

administrative matter, see United States v. Pena, 64 M.J. 259,

264 (C.A.A.F. 2007); United States v. Spaustat, 57 M.J. 256, 263

(C.A.A.F. 2002), nor, if it had jurisdiction, the ability to

find the facts necessary to apply the regulations, see, e.g.,

Article 67(c), UCMJ, 10 U.S.C. § 867(c) (2006).

     Appellant’s claim that he should be granted relief as a

result of his anxiety is without merit both because he has not

alleged that his anxiety was “particularized” and

“distinguishable from the normal anxiety experienced by

prisoners awaiting an appellate decision,” Moreno, 63 M.J. at

140, and because the claimed source of Appellant’s anxiety is a

sex offender registration requirement connected to a conviction

not contested before this Court.

     Both of these claims are based upon an assumption that, had

the initial delay not occurred during the period between the

court-martial and the convening authority’s action, Appellant’s

case would have been resolved by the CCA earlier, thereby

leading to an earlier release date for Appellant.   This

assumption is entirely speculative -- there is no basis in fact

given for the assertion that the CCA would have issued its


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United States v. Arriaga, No. 10-0572/AF

opinion earlier had the convening authority’s action occurred

sooner.   The CCA, in granting Appellant such substantial relief,

acted with full knowledge of Appellant’s claim that his due

process rights had been violated.    In its opinion, the CCA

explained that it had considered Appellant’s claim and found any

error to be harmless beyond a reasonable doubt.3   Appellant’s

argument that he would have been released earlier had the

convening authority not taken 243 days to act is directly based

on the fact that, slightly over two years into Appellant’s four-

year sentence, the CCA halved Appellant’s period of confinement.

But we do not know whether the CCA would have granted Appellant

such substantial relief had the convening authority’s action

occurred earlier, thus depriving him of the post-trial delay

claim he brought before the CCA.

     In the end, however, what the CCA might have done under

different circumstances does not matter in assessing prejudice.

In light of the speculative nature of Appellant’s claim, the


3
  Though the CCA referred to “the additional 123-day delay,” the
CCA appears to have considered the entire 243-day period in
conducting its analysis. Though I disagree with the
establishment of a fixed period for presumptively unreasonable
delay set forth in Moreno, 63 M.J. at 142 (setting forth a fixed
period of 120 days between the completion of the trial and
convening authority action), it is in any event improper to do
as the Government requested and subtract that 120-day period
from the total period of delay when analyzing whether
Appellant’s right to speedy post-trial review has been violated.
United States v. Canchola, 64 M.J. 245, 247 n.2 (C.A.A.F. 2007).



                                11
United States v. Arriaga, No. 10-0572/AF

very substantial sentence relief he received from the CCA, and

the fact that he was released just two days after the CCA denied

the Government’s motion for reconsideration, even if Appellant

had demonstrated that the delay between sentencing and the

convening authority’s action was presumptively prejudicial on

the basis of the particular facts of his case, the delay did not

violate Appellant’s right to have his case processed in a timely

manner.

     I would affirm the decision of the United States Air Force

Court of Criminal Appeals.




                               12
