                                    IN THE CASE OF


                             UNITED STATES, Appellee

                                            v.

 Aaron A. OESTMANN, Aviation Support Equipment Technician Airman
                       U.S. Navy, Appellant

                                      No. 04-0723
                            Crim. App. No. 200301443

       United States Court of Appeals for the Armed Forces

                               Argued March 2, 2005

                               Decided May 10, 2005

      EFFRON, J., delivered the opinion of the Court, in which
GIERKE, C.J., and CRAWFORD and BAKER, JJ., joined. ERDMANN, J.,
filed a separate opinion concurring in part and dissenting in
part.


                                         Counsel

For Appellant: Lieutenant Stephen C. Reyes, JAGC, USNR
    (argued); Commander Michael Wentworth, JAGC, USNR (on
    brief); Lieutenant Colin A. Kisor, JAGC, USNR.

For Appellee: Major Raymond E. Beal II, USMC (argued);
    Commander Charles N. Purnell, JAGC, USN (on brief); Colonel
    William K. Lietzau, USMC.


Military Judge:        B. W. MacKenzie


        THIS   OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Oestmann, No. 04-0723/NA


       Judge EFFRON delivered the opinion of the Court.

       On December 10, 2001, Appellant was convicted and sentenced

at a general court-martial convened by the Commanding Officer of

the U.S. Naval Support Activity in Naples, Italy.    The court-

martial, composed of a military judge sitting alone, convicted

Appellant, pursuant to his pleas, of an absence offense and

various drug-related offenses in violation of Articles 81, 86,

92, and 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C.

§§ 881, 886, 892, and 912a (2000), respectively.    The adjudged

sentence included a bad-conduct discharge, confinement for

twelve months, forfeiture of all pay and allowances, and

reduction to the lowest enlisted grade.

       Within six weeks after completion of trial, the military

judge authenticated the eighty-two-page record.    A month later,

on February 26, 2002, the convening authority approved the

sentence and directed that the record of trial be forwarded to

the Navy-Marine Corps Appellate Review Activity in Washington,

D.C.

       The case was marked as received in Washington on July 22,

2003, reflecting a delay of 511 days.    In proceedings before the

United States Navy-Marine Corps Court of Criminal Appeals,

Appellant raised a number of issues, including failure to

provide timely review.    The court declined to provide any relief

based upon the timeliness issue, but modified two of the


                                   2
United States v. Oestmann, No. 04-0723/NA


findings and reassessed the sentence on other grounds.    United

States v. Oestmann, 60 M.J. 660, aff’d and supplemented upon

reconsideration, 60 M.J. 660, 664 (N-M. Ct. Crim. App. 2004).

As a result of the modified findings, the court reassessed the

sentence.   Upon reassessment, the court modified the sentence to

include confinement for nine months and approved the balance of

the sentence.    Id. at 666.

     The present appeal concerns Appellant’s right to timely

appellate review.   See United States v. Toohey, 60 M.J. 100

(C.A.A.F. 2003); Diaz v. The Judge Advocate General of the Navy,

59 M.J. 34 (C.A.A.F. 2003); United States v. Tardif, 57 M.J. 219

(C.A.A.F. 2002); United States v. Jones, ___ M.J. ___ (C.A.A.F.

May 10, 2005).

     In the course of addressing the issue of timeliness, the

court below said: “The appellant, who did not raise the issue

before the convening authority acted, has not shown that the

delay was unreasonable.”   60 M.J. at 664.   The timeliness issue

in the present case, however, does not involve the period

preceding the convening authority’s action on the case.    Here,

the convening authority fulfilled his discretionary

responsibility and acted on the case seventy-eight days after

the sentence was adjudged.     The issue in this case involves the

period after the convening authority acted -- the unexplained

and unusual period of more than one year and five months to


                                   3
United States v. Oestmann, No. 04-0723/NA


accomplish the routine, nondiscretionary, ministerial task of

transmitting the record from the convening authority to the

Navy-Marine Corps Appellate Review Activity.   Because the court

below did not focus on the relevant period of delay, we decline

to rely on the court’s conclusion that relief would not be

warranted for unreasonable and unexplained delay in this case.

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed as to the findings and set aside

as to the sentence.   The record is returned to the Judge

Advocate General of the Navy for remand to the Court of Criminal

Appeals for review of the sentence under Toohey, Diaz, Tardif,

and Jones.   Thereafter, Article 67, UCMJ, 10 U.S.C. § 867

(2000), will apply.




                                 4
United States v. Oestmann, No. 04-0723/NA


    ERDMANN, J. (concurring in part and dissenting in part):

     I agree with the conclusion of the majority that the

Navy-Marine Corps Court of Criminal Appeals erred by

focusing upon the absence of an objection to this delay to

the convening authority.   With respect to the remedy, I

would address the legal error here, de novo, without

returning this case to the Court of Criminal Appeals for

further review.    United States v. Cooper, 58 M.J. 54, 58

(C.A.A.F. 2003).   The post-action delay in shipping this

eighty-two-page record of trial to the Navy-Marine Corps

Appellate Review Activity was unreasonable, unexplained,

and so lengthy as to warrant an inference of prejudice to

Oestmann’s rights and therefore violates his due process

rights to a speedy appellate review.   I would reverse the

decision of the Court of Criminal Appeals and set aside the

findings and sentence.

     The Government did not offer a defense or explanation

for this 511-day delay.    When queried during oral argument,

the Government acknowledged that the only task required to

get the record to the appellate review activity was the

ministerial act of boxing it up and mailing it.    Although

there are other tasks such as preparation of the

promulgating order and completion of form checklists, all

tasks associated with forwarding the record are routine.
United States v. Oestmann, No. 04-0723/NA


See, e.g., Rules for Courts-Martial 1111 and 1114.    These

tasks require no discretion and they should take a matter

of days, not seventeen months.    Even in an extraordinary

case, completion of these routine tasks should take no

longer than thirty days.

     This court abandoned the so-called “draconian” ninety-

day rules of United States v. Burton, 21 C.M.A. 112, 44

C.M.R. 166 (1971), and Dunlap v. Convening Authority, 23

C.M.A. 135, 48 C.M.R. 751 (1974), in part, based upon our

confidence that the system would maintain its dedication to

speedy disposition and post-trial processing of courts-

martial.   See United States v. Kossman, 38 M.J. 258, 261

(C.M.A. 1993); United States v. Banks, 7 M.J. 92, 93

(C.M.A. 1979).   Unfortunately, Oestmann’s case and others

reviewed by this court demonstrate that our confidence in

continued timely post-trial processing and appellate review

may have been misplaced.   See United States v. Jones, ___

M.J. ___ (C.A.A.F. May 10, 2005); Rodriguez-Rivera v.

United States and The Judge Advocate General of the Navy,

___ M.J. ___, Misc. No. 05-8007/NA (C.A.A.F. Feb. 17,

2005); United States v. Toohey, 60 M.J. 100 (C.A.A.F.

2003); Diaz v. The Judge Advocate General of the Navy, 59

M.J. 34 (C.A.A.F. 2003); United States v. Tardif, 57 M.J.

219 (C.A.A.F. 2002).   Post-trial processing times have


                              2
United States v. Oestmann, No. 04-0723/NA


risen dramatically since our decision in Banks.     This rise

is all the more alarming when measured against a relatively

low number of cases tried in recent years.

     While I am not opposed to again considering draconian

rules to protect the due process rights of servicemembers

convicted by courts-martial should we continue to see

unreasonable post-trial delays, this case does not require

such a drastic remedy.    Four factors are considered to

determine whether an appellate delay violates an

appellant's due process rights:     “(1) length of the delay;

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

his right to a timely appeal; and (4) prejudice to the

appellant.”    Toohey, 60 M.J. at 102; Barker v. Wingo, 407

U.S. 514, 530 (1972).    After applying that four-part due

process test to these facts, I find a due process

violation.

     (1)      Length of Delay

     The length-of-delay factor “is actually a double
     enquiry.”   Doggett v. United States, 505 U.S. 647,
     651, 120 L.Ed. 2d 520, 112 S. Ct. 2686 (1992). First,
     the “length of the delay is to some extent a
     triggering mechanism,” and unless there is a period of
     delay that appears, on its face, to be unreasonable
     under the circumstances, “there is no necessity for
     inquiry into the other factors that go into the
     balance.” Barker, 407 U.S. at 530. Second, if the
     constitutional inquiry has been triggered, the length
     of delay is itself balanced with the other factors and
     may, in extreme circumstances, give rise to a strong



                                3
United States v. Oestmann, No. 04-0723/NA


     “presumption of evidentiary prejudice” affecting the
     fourth Barker factor. Doggett, 505 U.S. at 655-57.

United States v. Smith, 94 F.3d 204, 209 (6th Cir. 1996).

     The 511-day delay to ship the record of trial is

excessive and unreasonable on its face, therefore

triggering the constitutional inquiry.   As noted, the

Government acknowledged that the only task required to get

the record to the appellate review activity was the

ministerial act of boxing it up and mailing it.   This

factor weighs heavily in favor of Oestmann.

     (2)    Reason for Delay

     The Government did not give any reason for the delay.

See United States v. Dunbar, 31 M.J. 70, 73 (C.M.A. 1990)

(delay in forwarding a record of trial to the Court of

Criminal Appeals is “the least defensible of all” post-

trial delays).   This factor weighs heavily in favor of

Oestmann.

     (3)    Oestmann’s Assertion of the Right

     Oestmann did not assert his right to a speedy

forwarding of the record.   Normally a lack of action would

weigh against Oestmann.   But after action is taken by the

convening authority and before a case is docketed at the

Court of Criminal Appeals, a convicted servicemember has

virtually no forum in which to complain about delay in



                               4
United States v. Oestmann, No. 04-0723/NA


forwarding the record.   While trial defense counsel has an

obligation to continue representation, see United States v.

Palenius, 2 M.J. 86 (C.M.A. 1977), after a client is

transferred to serve confinement and action has been taken

by the convening authority, trial defense counsel has

little further involvement.   The Government recognized this

representational void at oral argument when it suggested

that Oestmann should have complained of the delay to his

commanding officer, a chaplain or his congressman.    None of

these individuals has direct responsibility for timely

processing of cases in the military justice appellate

system.1   Because servicemembers in Oestmann’s position are

in a representational void in the period between the

convening authority’s action and the docketing of a case

for appeal, I do not weigh the absence of an assertion of

the right to timely appellate review against Oestmann.

     (4)    Prejudice

     To establish prejudice, Oestmann argues that he was

denied a meaningful opportunity for relief in that the

Court of Criminal Appeals’ decision reducing his sentence

had no practical effect because of the delay.   The


1
   The fact that the Government views a congressional
complaint as an appropriate avenue for a servicemember to
pursue when confronted with post-trial delay merely
demonstrates that the current system is flawed.


                              5
United States v. Oestmann, No. 04-0723/NA


Government counters that there is no prejudice because even

without this delay the Navy-Marine Corps court would not

have ruled before Oestmann was released from incarceration.

While I question the wisdom of the Government in arguing

that the normal delay at the lower court is so extreme that

even without this additional 511-day delay, that court

would not have ruled on Oestmann’s appeal before he was

released from incarceration, I need not resolve that

dispute to find prejudice here.

     The Supreme Court found that “excessive delay

presumptively compromises the reliability of a trial in

ways that neither party can prove or, for that matter,

identify.”   Doggett v. United States, 505 U.S. 647, 656

(1992).2   The Sixth Circuit further explained this

“presumptive prejudice” element in Smith:   “any ‘excessive

delay’ -- that is, any delay triggering the Barker analysis

–- will generally give rise to a presumption of prejudice,

and the only question is how much ‘importance’ to assign to


2
  While Doggett dealt with a speedy trial delay, circuit
courts have split on whether its rationale is applicable to
appellate delays as well. Accord Smith; Taylor v. Hargett,
27 F.3d 483, 486 (10th Cir. 1994). Contra United States v.
Mohawk, 20 F.3d 1480, 1488 (9th Cir. 1994); Elcock v.
Henderson, 28 F.3d 276, 279 (2d Cir. 1994). This court
adopted the Barker four-part analysis with respect to post-
trial speedy disposition claims, and I would include in
that analysis the Doggett presumption of prejudice in those
instances where delay is excessive.


                              6
United States v. Oestmann, No. 04-0723/NA


that prejudice.”   94 F.3d at 212.    See also Toohey, 60 M.J.

at 102.   Here, an indefensible 511-day delay in

transmitting an eighty-two-page record of trial requires

that substantial weight be assigned to the presumptive

prejudice.    The Government did not overcome the

presumption.

     Any delay that reflects a disregard for the rights of

convicted servicemembers is troublesome.    Delays between

the court-martial and review by the Courts of Criminal

Appeals are particularly egregious.    Review at a Court of

Criminal Appeals “involves a fresh, impartial look at the

evidence, giving no deference to the decision of the trial

court on factual sufficiency beyond the admonition in

Article 66(c), UCMJ, to take into account the fact that the

trial court saw and heard the witnesses.”    United States v.

Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).       In that same

context we have noted that “the Courts of Criminal Appeals

have unique fact finding authority, and that aspect of a

servicemember’s case is not concluded until that review is

completed.”    Diaz, 59 M.J. at 39.   The same can be said of

the sentence in light of the Court of Criminal Appeals’

responsibility to independently assure an appropriate

sentence.    The neglect and indifference reflected here not

only violate a servicemember’s constitutional right to


                               7
United States v. Oestmann, No. 04-0723/NA


speedy appellate review, they also erode servicemembers’

confidence in the military justice system as well as the

public’s perception of fairness in the system.

      The unique nature of review under Article 66(c) “calls

for, if anything, even greater diligence and timeliness

than is found in the civilian system.”   Diaz, 59 M.J. at

39.   Therefore, I would reverse the decision of the Court

of Criminal Appeals and set aside the findings and

sentence.




                              8
