                       UNITED STATES, Appellee

                                    v.

                  Thomas M. HANEY, Lance Corporal
                    U.S. Marine Corps, Appellant

                              No. 05-0047

                        Crim. App. No. 9900878

       United States Court of Appeals for the Armed Forces

                          Argued May 3, 2005

                     Decided September 29, 2006

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

                                 Counsel

For Appellant: Lieutenant Stephen C. Reyes, JAGC, USNR
(argued); Lieutenant Commander Eric J. McDonald, JAGC, USN (on
brief); Major Charles R. Zelnis, USMC.

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

Military Judge:   L. L. Jowers


       This opinion is subject to revision before final publication.
United States v. Haney, No. 05-0047/MC


        Chief Judge GIERKE delivered the opinion of the Court.

                               INTRODUCTION

       This case presents two issues.        We granted review of one

issue assigned by Appellant and specified a second issue.1

       The assigned issue asks us to determine whether trial

counsel’s closing argument included an improper comment on

Appellant’s invocation of his Article 31, Uniform Code of

Miltary Justice (UCMJ)2 rights to terminate an interrogation and

to seek the assistance of legal counsel.         In the unique factual

context of this case, even if we assume error in the trial

counsel’s argument, we hold that any error was harmless beyond a

reasonable doubt.

       The specified issue requires this Court to address whether

appellate defense counsel was ineffective in requesting multiple

enlargements of time at the lower court –- which ultimately


1
    The granted issue is:

       I. WHETHER TRIAL COUNSEL COMMITTED PLAIN ERROR BY
       IMPROPERLY COMMENTING ON APPELLANT’S EXERCISE OF ARTICLE 31
       RIGHTS.

This Court specified the following issue:

       II. IN LIGHT OF TOOHEY V. UNITED STATES, 60 M.J. 100
       (C.A.A.F. 2004) AND DIAZ V. JUDGE ADVOCATE GENERAL OF THE
       NAVY, 59 M.J. 34 (C.A.A.F. 2003) WHETHER DEFENSE COUNSELS’
       MULTIPLE REQUESTS FOR EXTENSIONS OF TIME CONSTITUTE
       INEFFECTIVE ASSISTANCE OF COUNSEL.

United States v. Haney, 61 M.J. 19 (C.A.A.F. 2005).
2
    10 U.S.C. § 831 (2000).

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United States v. Haney, No. 05-0047/MC


resulted in over seven years of appellate delay.      We address

this issue in light of our recent holding in United States v.

Moreno,3 that further developed the cases identified in the

specified issue, to determine if Appellant was prejudiced by any

deficiency in appellate representation.      Although we conclude

that the extraordinary unexplained delay resulted in a due

process violation, we also conclude that this error was harmless

beyond a reasonable doubt.       In light of this conclusion, we hold

that that any deficiency by appellate defense counsel at the

lower court was not prejudicial, and therefore, Appellant was

not denied effective assistance of counsel.

       We now address these two issues in turn.

       I.   COMMENTARY ON APPELLANT’S ARTICLE 31, UCMJ, RIGHTS

                A.   BACKGROUND AND TRIAL DEVELOPMENTS

       Appellant was suspected of drug misconduct.     Master

Sergeant (MSgt) Crecilius, a Criminal Investigation Division

(CID) investigator, initially interviewed Appellant as to his

alleged drug misconduct.       At the outset of this interview,

Appellant waived his Article 31, UCMJ, rights, agreed to talk to

the investigator, and initially denied using marijuana.

However, Appellant later invoked his Article 31, UCMJ, rights,

requested an attorney, terminated the interview, and departed.

Appellant returned to his barracks room.


3
    63 M.J. 129 (C.A.A.F. 2006).

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United States v. Haney, No. 05-0047/MC


      About three hours later, Appellant on his own initiative

went back to the CID.      Staff Sergeant (SSgt) Deal, an

investigator with the CID, began a second interrogation of

Appellant.    Appellant waived his Article 31, UCMJ, rights and

confessed to wrongfully using marijuana on one occasion.

Additional investigation developed evidence relating to several

offenses, and later Appellant’s case was referred to a special

court-martial.

      A court-martial panel of officer and enlisted members

convicted Appellant, contrary to his pleas, of two

specifications of marijuana use, one specification of

distribution of marijuana, and one specification of making a

false official statement.4

      As part of the trial on the merits before a court-martial

panel, Appellant challenged the truthfulness of his confession

to one wrongful use of marijuana offense.     The defense proffered

the theory that Appellant fabricated his confession to drug use

because of a coercive interrogation and in order to avoid harsh




4
  This was in violation of Articles 107 and 112a, UCMJ, 10
U.S.C. §§ 907, 912a (2000). Appellant was sentenced to 107 days
confinement, forfeiture of $600 pay per month for six months,
reduction to pay grade E-1, and a bad-conduct discharge. The
convening authority approved the adjudged sentence. The United
States Navy-Marine Corps Court of Criminal Appeals affirmed the
findings and sentence in an unpublished opinion. United States
v. Haney, No. NMCCA 9900878 (N-M. Ct. Crim. App. June 21, 2004).

                                         4
United States v. Haney, No. 05-0047/MC


punishment.5    In his opening statement, the trial defense counsel

stated to the panel:

        Mr. Haney, incidentally, is going to testify. So at least
        you’ll know that. That is the defendant. The reason is
        you’re going to hear evidence from him as to the promises
        being made and the fact that, if you say a couple of
        things, don’t worry about it, everything will go away.
        You’re going to hear that he went to see the investigating
        officer twice; the first time he walked out because of
        these alleged promises, and then he came back because there
        was a promise that if he did not state his involvement he
        would be tossed in the brig, but if he did make a statement
        as to anything that was talked about here, don’t worry
        about it, nothing is going to happen . . . .

        The prosecution case included two pieces of evidence to

prove the drug offenses:       testimony concerning Appellant’s

signed confession to one use of marijuana, and testimony from

members of Appellant’s battalion corroborating Appellant’s

alleged marijuana use and distribution.

        The first prosecution witness, SSgt Deal, an investigator

with CID, testified regarding Appellant’s confession to smoking

marijuana on one occasion.       SSgt Deal testified that he gained

information that Appellant, as well as other members of

Appellant’s battalion, were allegedly using drugs.      Because of

this information, SSgt Deal interrogated Appellant on June 20,

1996.    SSgt Deal testified that he properly advised Appellant of




5
  At trial, defense counsel did not make a motion to suppress
Appellant’s confession to SSgt Deal. The coerced confession
theory was presented only to the panel during presentation of
the case on the merits.

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United States v. Haney, No. 05-0047/MC


his Article 31, UCMJ, rights and Appellant “waived his rights,

and provided [the incriminating] statement.”

      In cross-examination of the Government witnesses, the

defense attempted to bolster the theory, presented in the

defense’s opening statement, that Appellant’s confession to one

incident of marijuana use was fabricated as a result of CID

coercion.    This line of questioning related to alleged

conditional promises of leniency that interrogators made to

Appellant if he admitted to wrongful drug use.

      Later, during the defense’s case-in-chief, trial defense

counsel elicited from Appellant other circumstances regarding

the interrogation of Appellant, in general, and Appellant’s

prior invocation of his Article 31, UCMJ, rights, in particular.

Appellant testified that MSgt Crecilius first attempted to

interview him about his alleged wrongful drug use.6    Appellant

testified that MSgt Crecilius explained Appellant’s “five

rights,” and asked Appellant if he “wish[ed] to talk.”

According to Appellant, MSgt Crecilius then asked Appellant

whether he was involved with smoking marijuana with members of

his battalion.     Appellant stated that he denied smoking

marijuana at that point, and requested an attorney.    Appellant

stated that after he left the room, CID agents took his


6
  MSgt Crecilius did not testify, but on cross-examination, SSgt
Deal corroborated MSgt Crecilius’s presence at an initial
meeting prior to his meeting with Appellant.

                                         6
United States v. Haney, No. 05-0047/MC


fingerprints and his photograph, and he returned to his barracks

room.    Appellant further testified that the investigator’s

threat that he would be placed into confinement if he did not

give them information induced him later to return to CID and

falsely to confess to SSgt Deal.7

        In his initial closing argument, trial counsel addressed,

and attempted to rebut, the defense assertion that Appellant had

been induced to make a false confession.     Trial counsel argued:

             [Appellant] says he gave a statement to avoid
        confinement. Well, let’s look at that. I mean I think
        that’s an interesting statement. Let’s -– this is an
        important analysis that I think needs to be considered. He
        gets his first rights warning from Master Sergeant
        Crecilius and he invokes his right, he says, I want to see
        an attorney. And he leaves the premises and what does he
        do? He doesn’t see an attorney, he goes to the barracks.
        What would most people do in that situation if an
        individual was truly innocent? Wouldn’t they go see a
        lawyer and get some sort of legal protection? Would they
        come back and admit to guilt without the benefit of legal
        advice? What is more reasonable is that if he knows he’s
        guilty, he understands that there may be witnesses out
        there who can prove he’s guilty, he has an incentive to
        come back and try to minimize things by being as
        cooperative as possible and hope that he gets some sort of
        leniency. If he was innocent, the government is arguing,
        he would have gone and seen a lawyer, and used that shield.

Emphasis added.

        Defense counsel made no objection to these remarks.

Moreover, trial defense counsel, in his closing argument

repeated the false confession theory stating:


7
  Appellant stated: “I didn’t want to end up in confinement so I
thought, well, if I go back and tell them what they want to
hear, I will not end up in confinement.”

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United States v. Haney, No. 05-0047/MC


      Then Deal says, well, we’re after big fish, this is just a
      slap on the wrist, there’s really nothing to worry about,
      kind of thing. And again, you heard the comments from him
      that I specifically read. Wouldn’t that push – and this is
      what you have to examine. What does that mean in his mind?
      . . . [a]nd here’s a man –- a young man never been exposed
      to this kind of interrogation, so he goes back and thinks
      about it, well, if nothing is going to happen, I’ll give
      them what they want.

                              II.   DISCUSSION

      Referring to the adversarial trial setting, the Supreme

Court has stated that “[i]t is important that both the defendant

and prosecutor have the opportunity to meet fairly the evidence

and arguments of one another.”8          In both Robinson9 and Lockett v.

Ohio,10 the Supreme Court reaffirmed “the principle that

prosecutorial comment must be examined in context . . . .”11         In

both these cases, the Supreme Court held that a prosecutor’s

argument was not an impermissible comment regarding an accused

Fifth Amendment rights in light of the defense trial tactics in

the case.12

      Consistent with this principle, this Court has also stated:

      Trial counsel has the duty of prosecuting a case, and he is
      permitted to comment earnestly and forcefully on the

8
   United States v. Robinson, 485 U.S. 25, 33 (1988).
9
   Id. at 33-34.
10
    438 U.S. 586 (1978).
11
    Robinson, 485 U.S. at 33; Lockett, 438 U.S. at 595. This
Court also has emphasized the importance of context in
evaluating a prosecutor’s argument stating the fundamental rule
that “[a] prosecutorial comment must be examined in light of its
context within the entire court-martial.” United States v.
Carter, 61 M.J. 30, 33 (C.A.A.F. 2005); see, e.g., United States
v. Baer, 53 M.J. 235, 238 (C.A.A.F. 2000).
12
    Robinson, 485 U.S. at 33-34; Lockett, 438 U.S. at 595.

                                         8
United States v. Haney, No. 05-0047/MC


      evidence, as well as on any inferences which are supported
      reasonably by the testimony. He may strike hard blows, but
      they must be fair. If his closing argument has a tendency
      to be inflammatory, we must make certain it is based on
      matters found within the record. Otherwise it is improper.
      The issues, facts, and circumstances of the case are the
      governing factors as to what may be proper or improper.
      We, therefore, must evaluate the argument in the light of
      this record.13

      Appellant asserts that the Government’s closing remarks

amounted to using his invocation of Article 31, UCMJ, rights as

substantive evidence against him, in violation of Military Rule

of Evidence (M.R.E.) 301(f)(3).          M.R.E. 301(f)(3) provides:

“The fact that the accused during official questioning and in

exercise of rights under the Fifth Amendment to the Constitution

of the United States or Article 31, remained silent, refused to

answer a certain question, requested counsel, or requested that

the questioning be terminated is inadmissible against the

accused.”

      M.R.E. 301(f)(3) reaffirms the long-standing general rule

that trial counsel cannot make “capital of accused’s exercise of

his Article 31 rights.”14      In light of this prohibition, we


13
   United States v. Doctor, 7 C.M.A. 126, 133-34, 21 C.M.R. 252,
259-60 (1956) (citations omitted); see United States v. Ruiz, 54
M.J. 138, 143-44 (C.A.A.F. 2000).
14
   See United States v. Kemp, 13 C.M.A. 89, 98, 32 C.M.R. 89, 98
(1962); see, e.g., Carter, 61 M.J. at 34 (holding that repeated
references to “uncontroverted evidence” of an accused’s guilt
throughout closing argument was reversible error, where the
comments were general, and not “tailored to the defense
credibility argument”); United States v. Gilley, 56 M.J. 113,
123 (C.A.A.F. 2001) (holding that there was no material
prejudice arising from trial counsel’s repeated references to an

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United States v. Haney, No. 05-0047/MC


consider Appellant’s assertion of improper trial counsel comment

on his invocation of constitutional rights in the context of the

trial developments in this case.15

      We also note that there was no defense objection to trial

counsel’s argument.      This Court has stated regarding a trial

counsel’s argument:

      Failure to object to improper argument before the military
      judge begins to instruct the members on findings
      constitutes waiver. In the absence of an objection, we
      review for plain error. Plain error occurs when (1) there
      is error, (2) the error is plain or obvious, and (3) the
      error results in material prejudice to a substantial right
      of the accused.16

      In the view of the Government, the defense’s theory that

interrogating agents coerced Appellant to obtain his confession

opened the door to the trial counsel’s fair argument rebutting

this theory.17    Arguably, this permissible argument would further

suggest that Appellant may not have felt the degree of coercion

that he claimed compelled him to sign a false confession.     After



accused’s invoking his right to counsel); Ruiz, 54 M.J. at 143
(holding that, where an accused took the stand to testify in his
own defense and denied culpability for the crime of shoplifting,
trial counsel’s commentary regarding this theory was made in
furtherance of counsel’s “‘duty to . . . point out the
inconsistencies and’ unbelievable nature of appellant’s story”).
15
   See Carter, 61 M.J. at 33; Baer, 53 M.J. at 238 (stating that
“the argument by a trial counsel must be viewed within the
context of the entire court-martial. The focus of our inquiry
should not be on words in isolation, but on the argument as
“viewed in context.”) (citations omitted).
16
   United States v. Fletcher, 62 M.J. 175, 179 (C.A.A.F. 2005)
(citations omitted).
17
   See Carter, 61 M.J. at 33; see, e.g., Gilley, 56 M.J. at 120-21
(citing Robinson, 485 U.S. at 32).

                                     10
United States v. Haney, No. 05-0047/MC


all, the interrogating agents respected Appellant’s assertion of

his right to consult with counsel and terminated the interview.

However, it was Appellant’s choice not to see a lawyer.

      The defense asserts that trial counsel went beyond fair

rebuttal when he stated “[if] he was innocent, the government is

arguing, he would have gone and seen a lawyer, and used that

shield.”   Arguably, this statement does not address and rebut

the claim of false confession, but rather argues, as evidence of

Appellant’s guilt, his invocation of his right to consult a

lawyer and his failure to actually consult with a lawyer.

Accordingly, Appellant asserts that it was not fair rebuttal for

trial counsel to argue essentially that Appellant was guilty

because he did not consult a lawyer.

      We need not presently resolve this matter.   It is

sufficient to say that we do not condone the entire argument of

the trial counsel in the unique facts of this case and caution

counsel against making such an argument.   However, even

assuming, arguendo, that trial counsel’s closing argument did

improperly comment on Appellant’s right to invoke his Article

31, UCMJ, rights and his constitutional right to consult with

counsel, we conclude that any error was harmless beyond a

reasonable doubt for two reasons.18



18
  See, e.g., United States v. Young, 470 U.S. 1, 11-12 (1985)
(stating that “[i]nappropriate prosecutorial comments, standing

                                     11
United States v. Haney, No. 05-0047/MC


      First, the record establishes that Appellant raised the

matter of Appellant’s invoking his Article 31, UCMJ, rights and

constitutional right to counsel.          During his testimony on direct

examination, Appellant made the initial evidentiary disclosure

that he exercised his Article 31, UCMJ, rights.         The Government

did not inject Appellant’s invocation of his rights into

evidence.    Rather, the matter was brought out by trial defense

counsel to support the defense theory of the case that his

admission to one incident of marijuana use was fabricated in

response to false CID promises of leniency and coercion.

      Second, in our view, the strength of the Government’s case

did not hinge upon Appellant’s confession to one use of

marijuana.    Rather, the Government presented the members with

detailed testimony from two witnesses corroborating Appellant’s

criminal misconduct -- one of whom testified to having used

marijuana with Appellant, and another who placed Appellant at

the scene of an alleged incident of drug use.

      Accordingly, we conclude that any error in the closing

argument was harmless beyond a reasonable doubt,19 and we affirm

the decision of the lower court finding no merit as to Issue I.




alone, [do] not justify a reviewing court to reverse a criminal
conviction obtained in an otherwise fair proceeding”).
19
   See United States v. Carpenter, 51 M.J. 393, 396 (C.A.A.F.
1999) (holding that, in light of the appellant’s failure to
object to the prosecution’s rebuttal argument against him, any
error in the prosecution’s argument was harmless).

                                     12
United States v. Haney, No. 05-0047/MC


                III.   INEFFECTIVE ASSISTANCE OF COUNSEL

      We next address the specified issue:      whether counsel was

ineffective in requesting multiple enlargements of time to

submit Appellant’s case for review.       Appellant argues that

counsel’s repeated requests for enlargements of time deprived

him of due process of law and amounted to ineffective assistance

of counsel.20

       A.   LAW RELATING TO INEFFECTIVE ASSISTANCE OF COUNSEL

      In United States v. Polk,21 this Court applied Strickland v.

Washington, 466 U.S. 668, 695 (1984) using a three-pronged test

to determine whether counsel has been ineffective:      (1) “Are the

allegations made by appellant true; and, if they are, is there a

reasonable explanation for counsel’s actions in the defense of

the case?”; (2) If the allegations are true, “did the level of

advocacy ‘fall[] measurably below the performance . . .

[ordinarily expected] of fallible lawyers?’”; and (3) “If

ineffective assistance of counsel is found to exist, ‘is . . .

there . . . a reasonable probability that, absent the errors,

the factfinder would have had a reasonable doubt respecting

guilt?’”

20
   Appellant also alleged various claims of ethical violations
based on conflicts of interest resulting from changes in
attorneys assigned to his case. We find nothing in the record
indicating an actual conflict of interest between attorneys
assigned to his case which would have hindered the adequacy of
representation. See Mickens v. Taylor, 535 U.S. 162, 175 (2002)
(citing Cuyler v. Sullivan, 446 U.S. 335, 348 (1980)).
21
   32 M.J. 150, 153 (C.M.A. 1991).

                                     13
United States v. Haney, No. 05-0047/MC


      The claim of ineffective assistance in this case is rooted

in the failure of appellate defense counsel to perform the

specific duty of filing pleadings at the lower court in a timely

manner.    We will evaluate this claim as we do a claim of a

failure of counsel to perform other duties such as to make a

motion or to suppress evidence.          Therefore, Appellant must show

that there is a reasonable probability that he was prejudiced by

this alleged deficiency of appellate counsel.22

      Because the ultimate question of prejudice arising from the

alleged ineffective assistance of counsel is closely tied in

this case to the issue of appellate delay, we analyze the

specified issue in light of our recent holding in Moreno.23

      Appellant asserts that the seven years of appellate delay

resulted directly from the deficient performance of appellate

counsel.   Attributing the languishment of his case to inadequate

staffing of appellate counsel, Appellant asserts that “the

failures by the Government led to a system of appellate review

that diminished rather than preserved Appellant’s rights.”         We

proceed to apply our recent holding in Moreno to evaluate

whether there was a due process violation in this case and, if

so, whether Appellant was prejudiced.



22
   See United States v. McConnell, 55 M.J. 479, 481 (C.A.A.F.
2001); United States v. Napoleon, 46 M.J. 279, 284 (C.A.A.F.
1997).
23
   63 M.J. at 141.

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United States v. Haney, No. 05-0047/MC


            B.   APPLICABILITY OF UNITED STATES V. MORENO

      In Toohey v. United States,24 this Court identified four

factors in determining whether post-trial delay violates due

process rights:     “(1) length of the delay; (2) reasons for the

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

appeal; and (4) prejudice to the appellant.”25        More recently in

Moreno, this Court explained:        “Once this due process analysis

is triggered by a facially unreasonable delay, the four factors

are balanced, with no single factor being required to find that

post-trial delay constitutes a due process violation.”26

                         1.   Length of the delay

      We note at the outset that this case presents a

particularly egregious delay –- 2,639 days.         This translates to

over seven years from sentencing to the Court of Criminal

Appeals opinion.27     In accordance with Moreno, we conclude this



24
   60 M.J. 100 (C.A.A.F. 2004). In Toohey, this Court held that
the appellant established a threshold showing of facially
unreasonable delay, even without showing prejudice. Id. at 104.
The Court remanded the case to the Navy-Marine Corps Court of
Criminal Appeals for it to determine whether the lengthy delay
violated the appellant’s Fifth Amendment right to due process
and whether the delay warranted some form of relief. Id.
25
   Id. at 102 (deriving these factors from the Supreme Court’s
speedy trial analysis in Barker v. Wingo, 407 U.S. 514, 530
(1972)).
26
   63 M.J. at 136.
27
   It is also noteworthy that it took 1,179 days (approximately
three years, two months) for the briefs to be filed after the
Court of Criminal Appeals docketed the case. After the case was
submitted, it took over 654 days (approximately one year, nine
months) to decide the case.

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United States v. Haney, No. 05-0047/MC


delay is facially unreasonable, and we proceed to perform a full

due process analysis.28

                        2.   Reasons for the delay

     Here, we focus on the degree of the Government’s

responsibility for the delay, as well as on any factors

“attributable to an appellant.”29         Appellate counsel assigned to

Appellant’s case requested a total of twenty-three enlargements

of time.30   From the standpoint of Moreno, we do not weigh this

factor against Appellant.31

      Indeed, we have held that where “a lack of ‘institutional

vigilance’” causes a case to languish on appeal, an appellant is

“effectively denied . . . his statutory right to the free and

timely professional assistance of detailed military appellate

defense counsel.”32


28
   Moreno, 63 M.J. at 136.
29
   Id.
30
   Appellate counsel was first assigned to Appellant’s case in
June 1999. The first attorney assigned as appellate defense
counsel requested a total of eighteen requests for enlargement
of time. This attorney was transferred from the Appellate
Defense Division. In August 2001 or thereabout, the next
attorney took over Appellant’s case, and requested five
enlargements of time. Thus, Appellant’s counsels requested a
combined twenty-three enlargements of time prior to filing a
brief.
31
   Id. at 137.
32
   See Article 70, UCMJ, 10 U.S.C. § 870 (2000); United States v.
Dearing, __ M.J. __ (21) (C.A.A.F. 2006) (holding that
“[c]onsistent with our decisions in Diaz and Moreno, we decline
to hold Appellant responsible for the lack of ‘institutional
vigilance’ which should have been exercised in this case”); see
Diaz v. Judge Advocate General of the Navy, 59 M.J. 34, 39-40
(C.A.A.F. 2003).

                                     16
United States v. Haney, No. 05-0047/MC


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

       We observe that Appellant did not assert his right to a

timely review and appeal before this case arrived at this Court.

However, the underlying ineffective assistance of counsel

allegation relates to the appellate defense counsel improperly

requesting an excessive number of enlargements at the lower

court.      In light of this action by Appellant’s appellate defense

counsel, we cannot fault Appellant for failing to assert his

right to a timely review.         Accordingly, we do not weigh this

factor against Appellant.

                         4.   Prejudice from the delay

       A final factor is any prejudice either personally to the

appellant or the presentation the appellant’s case that arises

from the excessive post-trial delay.33        We have determined that

Appellant received only 107 days of adjudged confinement and has

brought no claim of oppressive incarceration.            Appellant was out

on appellate leave during the delay period, and thus, has no

meritorious claim of “particularized anxiety.”34

                    5.    Conclusion –- Barker factors

       Under Moreno, we balance the factors to determine whether

Appellant’s due process rights were violated.            In this case, we

are concerned with two main factors.         First, the length of the

delay in this case is one of the longest we have seen –- seven

33
     Moreno, 63 M.J. at 138-39.
34
     Dearing, ___ M.J. at ___ (18); Moreno, 63 M.J. at 140.

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United States v. Haney, No. 05-0047/MC


years.   Secondly, this inordinate delay is unexplained.     Neither

the appellate defense counsel’s repeated requests for extensions

of time nor the mere circumstance of an extremely large caseload

adequately explains this unreasonable delay.35     Although we

conclude Appellant suffered no prejudice under the factors set

forth in Barker, we conclude the egregiousness of the

unexplained delay in this case was such that the perception of

fairness of the military justice system is potentially

jeopardized.36     Accordingly, we find a due process violation.37

                                 6.   Relief

      Having found a due process violation, we now test for harm

and prejudice.38     Based on our analysis under Issue I, the

present case does not involve either the denial of properly and

timely relief on another meritorious issue or particularized

anxiety or hardship that might arise from a rehearing.

Moreover, based on our review of the entire record, we conclude

that there is not any cognizable prejudice arising from the



35
   The Government’s motions to file the declarations of Commander
S. D. Rhoades and Mr. Robert Troidl are granted, and we have
considered the contents of those declarations.
36
   United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006)
(holding that “where there is no finding of Barker prejudice, we
will find a due process violation only when, 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. Harvey, __ M.J. __ (28) (C.A.A.F. 2006).
37
   Harvey, __ M.J. at __ (28).
38
   Id.

                                      18
United States v. Haney, No. 05-0047/MC


delay in this case.39     Appellant served only 107 days of

confinement and was likely released on appellate leave by the

end of June 1997.     We therefore conclude the delay in this case

was harmless beyond a reasonable doubt.40     In light of this

conclusion, we revisit the issue of ineffective assistance of

counsel.

      In order to prevail on the prejudice prong of an

ineffective assistance of counsel claim, an appellant must

ultimately show that “the deficient performance prejudiced the
            41
defense.”        Based on the analysis above, and guided by Moreno,

we conclude that Appellant was not prejudiced by any deficiency

in the appellate representation at the lower court.     Therefore,

we hold that Appellant was not denied the effective assistance

of counsel.42




39
   Cf. Dearing, __ M.J. at __ (28-29) (concluding prejudice arose
from counsel’s inefficacy because appellant raised a meritorious
claim on appeal, for which this Court granted relief).
40
   In United States v. Allison, 63 M.J. 365, 370 (C.A.A.F. 2006),
this Court acknowledged that “[a]s a general matter, we can
dispose of an issue by assuming error and proceeding directly to
the conclusion that any error was harmless.” We proceeded in
Allison to assume a denial of a right to speedy review and
concluded that the error was harmless. Id. at 371. In light of
our conclusion of harmless error in the present case, we could
have followed this approach. But the appellate delay here is
the longest this Court has recently reviewed. The particularly
egregious delay –- 2,639 days –- invites the detailed due
process analysis we present in this opinion.
41
   Strickland, 466 U.S. at 687.
42
   But see Dearing, __ M.J. at __ (26).

                                     19
United States v. Haney, No. 05-0047/MC


                                  DECISION

     As to the assigned issue, the holding of the United States

Navy-Marine Corps Court of Criminal Appeals is affirmed.   As to

the specified issue, we answer the question in the negative.

The decision of the United States Navy-Marine Corps Court of

Criminal Appeals is affirmed.




                                     20
United States v. Haney, No. 05-0047/MC


     CRAWFORD, Judge (concurring in part, dissenting in

part, and concurring in the result):

     The majority overlooks the fundamental nature of our

adversary system and precedent from this Court and the Supreme

Court, and gives little advice to the bench and bar that is

helpful.   I agree with the result but dissent from part of the

rationale.

     It is important to separate what was proper prosecution

argument from what was improper.   Based on the opening

statements and examination of the witnesses, the prosecution

could legitimately rebut the defense argument that Appellant’s

statement was coerced by arguing the background facts

surrounding the rights warnings statements, Appellant’s

termination of the interrogation, and his voluntary return to

the police to give a statement.    However, it would be improper

to argue that a “truly innocent” individual would see a lawyer,

whereas a guilty person “has an incentive to come back and try

to minimize things.”   The first approach is permissible.   The

latter is impermissible.

     The first comment and its expansion when placed in context

is clearly reasonable.    The best evidence any counsel can have

is the statement of the party opponent, in this case,

Appellant’s confession.    The defense counsel recognized that and

sought to discount its impact by using the small window of
United States v. Haney, No. 05-0047/MC


urinalysis testing.   When the defense seeks to use the Fifth

Amendment, Article 31, Uniform Code of Military Justice (UCMJ),

10 U.S.C. § 831 (2000), and the Military Rules of Evidence as a

sword, the prosecution has an absolute right to respond with

fair rebuttal.

     The prosecutor’s statement placed in context constitutes

fair rebuttal to the defense theory of the case which began with

defense counsel’s opening statement:

     You’re also going to hear from -- Mr. Haney,
     incidentally, is going to testify. So at least you’ll
     know that. That is the defendant. The reason is
     you’re going to hear evidence from him as to the
     promises being made and the fact that, if you say a
     couple of things, don’t worry about it, everything
     will go away. You’re going to hear that he went to
     see the investigating officer twice; the first time he
     walked out because of these alleged promises, and then
     he came back because there was a promise that if he
     did not state his involvement he would be tossed in
     the brig, but if he did make a statement as to
     anything that was talked about here, don’t worry about
     it, nothing is going to happen. So that’s the issue
     regarding Sergeant Deal who handled the investigation.
     And, again, you’re going to hear all of this.

                       PROSECUTION CASE

     Private Crist D. Pugh testified that he had seen Appellant

use marijuana over a dozen of times.   This happened in

Covington, Kentucky, on a weekend, July 28, 1995, through July

30, 1995.   When they arrived in Covington, they met Appellant’s

girlfriend, Lance Corporal Melissa D. Sandlin, at a hotel room

with five or six people and smoked seven or eight “joints” of



                                 2
United States v. Haney, No. 05-0047/MC


marijuana that Appellant brought.      Between August 18, 1995, and

the August 20, 1995, they again drove to Covington and met

Appellant’s friend, Paul, and Appellant’s girlfriend.     This time

they shared one joint.    Pugh and Appellant went to Covington

again on the weekend of October 20, 1995, through October 22,

1995.    They were accompanied by Lance Corporal Brumley and Lance

Corporal Winters on the trip.    They stayed at the same hotel and

used marijuana on various occasions.     At the hotel, they were

met by Lance Corporal Sandlin and purchased marijuana from

Sandlin’s uncle.

        On February 2, 1996, through February 4, 1996, Pugh and

Appellant went back to Covington, Kentucky, with Brumley.     This

time they met with Paul and another friend, Tim, Appellant’s

girlfriend, and another female.    They smoked marijuana on

various occasions.    During the weekend of May 17, 1996, through

May 19, 1996, Pugh, Appellant, and Appellant’s girlfriend went

on a camping trip to Aquia Landing Campground, where they used

marijuana.    During the months of February 1996 and March 1996,

they went to Stafford, Virginia, where they smoked marijuana.

        A camping trip in May 1966 involved Appellant, Brumley,

Lance Corporal Williams, Private First Class Crouse, Lance

Corporal Smith, Lance Corporal Plummer, Pugh, and another

private first class.    Plummer brought the marijuana along, and

it was smoked by Pugh, Appellant, Plummer, and Brumley.


                                   3
United States v. Haney, No. 05-0047/MC


     Private Brian T. Grimm also testified on behalf of the

Government.   He corroborated Pugh’s testimony that the group,

including Appellant, went to Covington, Kentucky, in April 1995,

where they partied, drank, and smoked marijuana.    This testimony

was cut short because the military judge would not allow the

Government to refresh his memory about his statement he made to

the Criminal Investigation Command (CID) on June 20, 1996.

Private Grimm then testified about the statement.

                            DEFENSE CASE

     To counter the Government’s case, the defense counsel used

a multiple approach to defend against the charges in this case.

First, the defense presented evidence of a negative urinalysis

sample which was taken close in time to one of the supposed

“marijuana” smoking events.   Second, the defense presented

several friends and acquaintances of Appellant and his

girlfriend to testify they never observed Appellant consuming

marijuana.    Third, in an attempt to negate Appellant’s

admissions to law enforcement officials, the defense attempted

to demonstrate that Appellant’s statements were coerced and

thus, unreliable.

     The defense introduced Defense Exhibit B, which was a

urinalysis sample taken on May 29, 1996, showing a negative

result.   A positive result for marijuana in urine is dependent

on when the consumption occurred in relation to rendering the


                                  4
United States v. Haney, No. 05-0047/MC


sample and the amount of consumption.    A negative urinalysis

would not necessarily show Appellant did not ingest marijuana on

May 14 or from May 17 through May 19.    An expert testified that

there might be a positive result within a six-day window, but

not within a ten-day window.   The expert could not be positive

without knowing more about the regularity of the consumption of

marijuana and the potency of the marijuana or THC

(tetrahydrocannabinol).

     Appellant’s girlfriend testified that Pugh and Appellant

did visit her in her hometown of Covington, Kentucky, but none

of them used marijuana.   She did admit that she talked to

Appellant the night before her testimony and discussed the case

with him.

     The defense then called Mr. Paul William Plageman, who has

known Melissa for about five or six years and lived in Covington

for twelve years.   He went to school with Appellant and Melissa.

He remembered Appellant visiting Covington a couple of weekends

in July, but he also remembered some visits from February 2

through February 4, but he testified that there was no

involvement with marijuana.

     Other individuals present on those weekends included

Timothy Feeback and others.    Mr. Feeback testified he lived in

Crescent Springs, Kentucky, and knew Appellant, Appellant’s

girlfriend, and Paul Plageman.   He also remembered a weekend


                                  5
United States v. Haney, No. 05-0047/MC


that Appellant visited home in February 1996; Feeback admitted

drinking, having a good time, but he testified that no one was

smoking marijuana.   He mentioned the presence of Brumley, Pugh,

and Appellant.   He also testified that Appellant had visited

with Pugh and Brumley the weekend of May 17, 1996, through May

19, 1996.   He also mentioned another individual who was there

that weekend was Krista Normeir.       Again there was no smoking of

marijuana smoked during that weekend.

     Staff Sergeant Clay Starner testified for the defense.       He

knew Appellant from 1994 through 1995, when they were involved

in preparing for a marathon.   That preparation continued from

October 1994 through October 1995.      This evidence was submitted

to establish that Appellant was absent from some of the weekends

mentioned by Grimm and Pugh.

     Appellant was the last witness to testify for the defense.

He testified concerning the statement that was taken by Staff

Sergeant Deal.   Appellant indicated that he was advised of his

Article 31, UCMJ, rights, and that he initially invoked his

rights and was allowed to leave the police station.      He went to

the barracks and thought about it for an hour and a half to two

hours and then went back “to tell them what they want[ed] to

hear.”   In his statement, Appellant admitted that he was smoking

marijuana at the Aquia Landing Campground.      He also implicated

his friend, Pugh, in the marijuana use as well as several


                                   6
United States v. Haney, No. 05-0047/MC


others.   Sergeant Wikel encouraged Appellant to make the

statement, telling him:   “This is better you do it this way.

The CO wants cooperation.”   Both Wikel and Deal told him:     “Once

the CO sees that you’re cooperating with our investigation

nothing is going to happen to you from here; it’ll just [be] a

slap on the wrist.”

     Appellant admitted on the witness stand that he lied about

smoking marijuana to avoid confinement.      The military judge

asked Appellant why he didn’t come forward earlier about Pugh’s

marijuana use if he knew that the Marine Corps didn’t tolerate

marijuana.   He testified he did not want to squeal on his

friends, as that would not be fair.    He explained that the

reason he reported his friends when he went back to see Wikel

and Deal was to get the investigators off his back.     The

military judge refused to let the members ask questions about

whether Appellant admonished his friends about the no-tolerance

policy in the Marine Corps and whether he saw Pugh smoking

marijuana earlier.

                          CLOSING ARGUMENT

     Trial counsel’s comment on Appellant’s failure to contact a

lawyer after invoking his right to counsel and stopping the

police interview was as follows:

          He says he gave a statement to avoid confinement.
     Well, let’s look at that. I mean I think that’s an
     interesting statement. Let’s -- this is an important


                                   7
United States v. Haney, No. 05-0047/MC


     analysis that I think needs to be considered. He gets
     his first rights warning from Master Sergeant
     Crecilius and he invokes his right, he says, I want to
     see an attorney. And he leaves the premises and what
     does he do? He doesn’t see an attorney, he goes to
     the barracks. What would most people do in that
     situation if an individual was truly innocent?
     Wouldn’t they go see a lawyer and get some sort of
     legal protection? Would they come back and admit to
     guilt without the benefit of legal advice? What is
     more reasonable is that if he knows he’s guilty, he
     understands that there may be witnesses out there who
     can prove he’s guilty, he has an incentive to come
     back and try to minimize things by being as
     cooperative as possible and hope that he gets some
     sort of leniency. If he was innocent, the government
     is arguing, he would have gone and seen a lawyer, and
     used that shield.

Emphasis added.

     The United States Navy-Marine Corps Court of Criminal

Appeals said:

          The trial counsel’s argument regarding the
     accused’s waiver of his rights and his written
     statement, taken in the context of the defense factual
     case, was not patently unreasonable. It is not error
     for the Government to comment upon the accused’s
     failure to support his claims. United States v. Webb,
     38 M.J. 62, 66 (C.M.A. 1993).1

     The second part of the assigned issue concerns trial

counsel’s comments on Appellant’s failure to call certain

witnesses to support his defense.   In his closing argument, the

trial counsel stated:

     It is interesting to note the absence of certain
     witnesses here today. You have before you a statement
     identifying Brumley, Lincoln, and Plummer, as being

1
  United States v. Haney, No. 9900878, slip op. at 5 (N-M. Ct.
Crim. App. June 21, 2004).

                                8
United States v. Haney, No. 05-0047/MC


     present at the scene of the Aquia Landing use. And
     they certainly could have come in and supported what
     Lance Corporal Haney has said to you. The question
     becomes, why are they not here?

Later, after the defense counsel argued, trial counsel returned

to this point:

     The third point, and final point, that I want to make
     is the defense counsel still has not provided an
     explanation as to why Brumley, Lincoln, Plummer, were
     not here to testify for their client ---

     MJ: Captain Rosenberg, I did not say anything the
     first time you mentioned this, and the defense did not
     object, but I’m going to make a sua sponte ruling not
     to allow you to make this kind of argument. The
     burden of proof is on the government to establish each
     and every element of the offense. The defense has no
     requirement to disprove any of the elements or to
     bring any evidence forward.

     The members are instructed not to allow this type of
     argument to shift the burden to the defense and you
     must not speculate as to why various witnesses named
     are not present. The defense is under no obligation
     to bring forth any witness.

     TC:   I understand your ruling, ma’am.

     The prosecutor’s comment on Appellant invoking his rights

was designed to show that his statement, the second time he went

to the CID office, was not coerced.   The first time he was at

the CID office, he invoked his rights and was released and

allowed to go back to the barracks.   He then voluntarily

returned to the CID office.    The aim of the prosecutor’s

argument was to rebut Appellant’s suggestion that the confession

the second time was coerced.   Appellant was not coerced -- he



                                  9
United States v. Haney, No. 05-0047/MC

could have stopped the interrogation at any time, just as he did

the first time, by invoking his right to counsel.   In addition,

the prosecutor’s comment about missing witnesses was meant to be

facetious, since the trial counsel was essentially saying that

the defense had already called numerous witnesses to say they

had never saw Appellant use marijuana -- why not call some more

witnesses to say essentially the same thing?

                      DISCUSSION -- ISSUE I

     The Government, in pointing out that Appellant knew that he

could obtain counsel, was making the classic rebuttal argument

to the defense theory of the case.   The defense theory was that

Appellant’s confession was involuntary and should be rejected.

The Government’s argument was in response to this theory.   The

Government counsel was trying to demonstrate that Appellant was

well aware he could stop the interview process by invoking his

rights at any point, because he had already successfully done

just that when they initially talked to him.

     In general, the majority is correct that the invocation of

rights under the Fifth Amendment or Article 31, UCMJ, would be

inadmissible against an accused.    But, when an appellant argues

there was a coercive atmosphere, the government should be

allowed to negate that argument by presenting evidence of the

prior warnings, invocation of rights, termination of the

interrogation, and the appellant’s voluntarily reinitiating the


                               10
United States v. Haney, No. 05-0047/MC

interrogation.   The right against self-incrimination may not be

used as a sword to prevent the Government from putting in

context what actually occurred and to defend against Appellant’s

assertion that his statement was coerced.

                        OPENING STATEMENTS

     The defense may open the door for rebuttal evidence in the

opening statement,2 direct examination,3 cross-examination,4 or

closing argument.5   When the facts mentioned in opening argument

are pursued throughout the trial, the door is “effectively

open[] for a great deal of rebuttal evidence.”6

     In McAnderson, the defendants, all members of a Chicago

street gang, were convicted of various roles in a conspiracy to

commit terrorism.7   In his opening statement, counsel for one of

the defendants described “‘the El Rukns . . . [as] a group of

people who banded together for brotherhood, discipline in their


2
  See, e.g., United States v. Houser, 36 M.J. 392, 400 (C.M.A.
1993); United States v. Franklin, 35 M.J. 311, 317 (C.M.A.
1992). But see United States v. Turner, 39 M.J. 259, 262
(C.M.A. 1994) (stating that “nothing more than a single passing
comment during defense counsel’s opening statement” may not be
enough without more, to open the door) (emphasis added).
3
  See, e.g., United States v. Beason, 220 F.3d 964, 967 (8th Cir.
2000) (after the defense sought to take advantage of the Bruton
rule -- the court held this opened the door for government
rebuttal evidence).
4
  United States v. Havens, 446 U.S. 620, 627 (1980).
5
  United States v. Young, 470 U.S. 1, 12 (1985); United States v.
Robinson, 485 U.S. 25, 32 (1988); Darden v. Wainwright, 477 U.S.
168, 178-82 (1986).
6
  United States v. McAnderson, 914 F.2d 934, 946 (7th Cir. 1990).
7
  Id. at 938.

                                11
United States v. Haney, No. 05-0047/MC

lives, lives that were often chaotic, to put God in their

lives.’”8   Counsel next stated that some members of the El Rukns,

      have been in trouble in the past. Some are still in
      trouble. But that’s no different than any other
      organization whether it be lawyers, a group of Catholics,
      or Jews, or Protestants or Muslims; it’s no different than
      any other organization. I venture to say even the Knights
      of Columbus have a few people in trouble every now and
      again.

Id.   Counsel for the other defendants made similar assertions in

their opening statements.9

      Thus, in McAnderson, the role of the organization was

pursued not only in the opening statement, but as part of the

defense case.   In rebuttal to these assertions, the prosecution

introduced evidence of drug transactions between the co-

conspirators and undercover agents.10    Some of this was

introduced as part of the prosecution’s case-in-chief.11    The

exact rebuttal was not set forth in the opinion.    The evidence

of these drug transactions was meant to impeach the defendant’s

contention that the organization was “fundamentally [a]

religious organization.”12

      In addition to the opening statement inviting a response,

direct examination may do the same.     One of the most recent

examples is Beason.   In Beason, the defense sought to take

8
   Id. at 945.
9
   Id.
10
    Id. at 945-46.
11
    Id. at 945 n.4.
12
    Id. at 946.

                                12
United States v. Haney, No. 05-0047/MC

advantage of the Bruton rule, which provides that at a joint

trial, a co-defendant’s confession that implicates the other

defendant is not admissible against that other defendant.       Id.

at 967; see Bruton v. United States, 391 U.S. 123, 126 (1968).

The Supreme Court held in Bruton that in limine instructions

would be inadequate because co-defendant B cannot test by cross-

examination the evidence set forth in A’s confession.13    In

Beason, the Government had introduced evidence that Beason was

the kingpin who was selling drugs from his truck, hiding

hundreds of thousands of dollars in its inside compartments.14

Like most drug kingpins, he had some runners.15   One of these was

Washington.    At trial, the defense asked the agent, who took a

statement from Washington, whether the information they obtained

regarding who knew where the money was in the truck, came from

Washington, who had a prior drug arrest.16   The government

argued, and the trial judge agreed, that this opened the door

for the agent to testify about other information from Washington

that revealed the ownership of the truck, how the money was

collected, how the money was given to Washington, and who was

given directions concerning where to hide it in the truck.17



13
     391 U.S. at 132.
14
     Beason, 220 F.3d at 966.
15
     Id. at 967-68.
16
     Id.
17
     Id.

                                 13
United States v. Haney, No. 05-0047/MC

       Just as the opening statement, direct examination, or

cross-examination may open the door, or unlock the evidence

door, closing arguments may invite a response from an opponent.

In Robinson,18 the defense counsel in his closing argument told

the jury that the government had not allowed the defendant to

explain his side of the story and had breached its “duty to be

fair.”

       After this argument, the prosecutor, in a hearing outside

the presence of the jury, contended that the defense had opened

the door.19    The judge agreed stating:

       I will tell you what, the Fifth Amendment ties the
       Government’s hands in terms of commenting upon the
       defendant’s failure to testify. But that tying of
       hands is not putting you into a boxing match with your
       hands tied behind your back and allowing him
       to punch you in the face. That is not what it was
       intended for and not fair. I will let you say that
       the defendants had every opportunity, if they wanted
       to, to explain this to the ladies and gentlemen of the
       jury.20

 The defense did not object, and in rebuttal, the prosecutor

 stated that the government had complied with its obligation

 to “play fair.”

           [Defense counsel] has made comments to the extent
       the Government has not allowed the defendants an
       opportunity to explain. It is totally unacceptable.
       He explained himself away on tape right into an
       indictment. He explained himself to the insurance
       investigator, to the extent that he wanted to. He

18
     485 U.S. at 27.
19
     Id. at 28.
20
     Id. (quotation marks omitted).

                                  14
United States v. Haney, No. 05-0047/MC

       could have taken the stand and explained it to you,
       anything he wanted to. The United States of America
       has given him, throughout, the opportunity to
       explain.21

The court noted that “[d]efense counsel did not object to

this closing and did not request a cautionary instruction.

Nonetheless, the court included in the jury instruction the

admonition that ‘no inference whatever may be drawn from

the election of a defendant not to testify.’”22

       In Young, the Supreme Court indicated that in order to

“right the scale” the prosecutor responded to the defense

counsel’s closing argument by expressing his personal opinion of

the defendant’s guilt, vouched for his own credibility and the

prestige of the prosecutor’s office, and exhorted the jury to

“do [your] job.”    The Supreme Court did not condone these

remarks but found they did not constitute plain error.23      The

role of the appellate court is to weigh the impact of such

remarks taking into account what prompted the remarks.24

       However, the better remedy is for the trial judge “to deal

with the improper argument of the defense counsel promptly and

thus blunt the need for the prosecutor to respond.”25   The

Supreme Court in Young stated:


21
     Id. (quotation marks omitted).
22
     Id. at 28-29.
23
     470 U.S. at 13.
24
     Id.
25
     Id.

                                  15
United States v. Haney, No. 05-0047/MC

           “Invited responses” can be effectively discouraged by
     prompt action from the bench in the form of corrective
     instructions to the jury and, when necessary, an admonition
     to the errant advocate.

          . . . Arguably defense counsel’s misconduct could have
     warranted the judge to interrupt the argument and admonish
     him thereby rendering the prosecutor’s response
     unnecessary.26

     Justice Brennan, writing for himself and two others,

dissenting in part and concurring in part, stated “I agree fully

with the Court’s conclusion that federal prosecutors do not have

a ‘right’ of reply to defense improprieties, but must instead

object to the trial judge and request curative action.”27

However, he “completely disagree[d]” with the majority’s having

apparently adopted an “invited error” analysis.28   He noted the

majority “rejects this asserted ‘right’ of reply, emphasizing

instead that prosecutors have no ‘license to make otherwise

improper arguments’ in response to defense rhetoric . . . .”29

     The Supreme Court concluded in Robinson that it did not

have to address the issue of plain error because there was no

error in the case.30   Justice Marshall (joined by Justice




26
   Id. (citation omitted)
27
   Id. at 22 (Brennan, J., dissenting in part and concurring in
part).
28
   Id.
29
   Id. at 23 (Brennan, J., dissenting in part and concurring in
part).
30
   Robinson, 485 U.S. at 30.

                                 16
United States v. Haney, No. 05-0047/MC

Brennan) dissented because he believed the prosecution’s

comments violated the Fifth Amendment.31

       While Griffin v. California,32 holds that the prosecutor may

not on his own initiative, comment on the right to remain

silent, the Supreme Court in Robinson found no violation of the

privilege against compulsory self-incrimination where “the

prosecutor’s reference to the defendant’s opportunity to testify

is a fair response to a claim made by defendant or his

counsel.”33    In holding there was no plain error, the Supreme

Court in Young looked at the defense counsel’s opening salvo,

the jury’s understanding of the response, and the overwhelming

evidence of guilt, and found there was no prejudice to the

defendant.34

       Likewise, in Darden,35 the Supreme Court, in a 5-4 opinion,

examined the “invited error” doctrine and again found that,

although the defendant’s trial was not perfect, it was not

fundamentally unfair.    “Much of the objectionable content was

invited by or was responsive to the opening summation of the

defense.”36    Parts of that summation were as follows:

       The Judge is going to tell you to consider the evidence or
       the lack of evidence. We have a lack of evidence, almost

31
     Id. at 37-45 (Marshall, J., dissenting).
32
     380 U.S. 609, 615 (1965).
33
     Robinson, 485 U.S. at 32.
34
     See 470 U.S. at 17-20.
35
     477 U.S. at 183.
36
     Id. at 182.

                                  17
United States v. Haney, No. 05-0047/MC

       criminally negligent on the part of the Polk County
       Sheriff’s Office in this case. You could go on and on
       about it. . . . They took a coincidence and magnified that
       into a capital case. And they are asking you to kill a man
       on coincidence. . . . The first witness that you saw was
       Mrs. Turman, who was a pathetic figure; who worked and
       struggled all of her life to build what little she had,
       the little furniture store; and a woman who was robbed,
       sexually assaulted, and then had her husband slaughtered
       before her eyes, by what would have to be a vicious animal.
       And this murderer ran after him, aimed again, and this poor
       kid with half his brains blown away. . . . It’s the work
       of an animal, there’s no doubt about it. So they come on
       up here and ask Citrus County people to kill the man. You
       will be instructed on lesser included offenses. . . . The
       question is, do they have enough evidence to kill that man,
       enough evidence? And I honestly do not think they do.37

       In United States v. Grady,38 this Court indicated that

regardless of who initiated the argument as to command policies,

the military judge has a sua sponte duty to give a curative

instruction.    However, this Court distinguished Grady in United

States v. Kropf.39

        Again, in Robinson,40 the Supreme Court held that the

prosecutor’s direct reference to the defendant’s failure to

testify was not error because it was in response to the defense

counsel’s argument that the government would not let the

defendant testify.

       In the instant case, the opening statement that defense

counsel made and the cross-examination of the agent, Deal, were


37
     Id. at 179 nn.5-8 (citations and quotation marks omitted).
38
     15 M.J. 275 (C.M.A. 1983)
39
     39 M.J. 107, 109 (C.M.A. 1994).
40
     485 U.S. at 32.

                                  18
United States v. Haney, No. 05-0047/MC

far from “single passing” comments.41    The courts have recognized

the door may be open by either side.    See, e.g., Shafer v. South

Carolina, 532 U.S. 36, 37-39 (2001) (finding that the

prosecutor’s closing argument that Shafer and his two

accomplices “might come back” opened the door to show future

dangerousness and required an instruction of life without

parole); United States v. Chance, 306 F.3d 356, 386-87 (6th Cir.

2002) (holding that once defense counsel attempted to paint the

picture of the appellant as a good law enforcement officer, the

prosecution was entitled to “adduce some evidence to rebut

[that] implication”).   The defendant may not use his

constitutional rights as a “shield” to “prevent the Government

from contradicting the untruths and reasonable inferences that

the fact finders could logically draw from the defense cross-

examination.”42

     The prosecution’s argument concerning the rights warnings,

invocation of the rights, and termination of the interrogation

was clearly fair rebuttal to show that Appellant’s confession

was not coerced.   Certainly, it rebutted the defense’s theory

from the beginning of the trial, thus defense counsel did not

object.   Although the trial counsel’s comments implying that

Appellant’s failure to consult with an attorney was proof of

41
  See Turner, 39 M.J. at 262.
42
  United States v. Gilley, 56 M.J. 113, 125 (C.A.A.F. 2001)
(Crawford, C.J., concurring in part).

                                19
United States v. Haney, No. 05-0047/MC

guilt went beyond fair rebuttal, the error was harmless beyond a

reasonable doubt, in light of the strength of the Government’s

case, which was supported by the testimony of two witnesses and

Appellant’s admission.    In addition, we must consider all of the

trial counsel’s comments in the context of a response to the

defense case that was presented.       The comments were harmless

beyond a reasonable doubt.

                              CONCLUSION

        While I agree with the majority as to the disposition of

Issues I and II, I disagree with the majority’s analysis of both

issues.    I would affirm the decision of the lower court.    I find

no merit in either issue.    I also write separately to

disassociate myself from this Court’s analysis of Issue II,

which is based on its prospective rule set forth in United

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

misapplication of the Barker v. Wingo, 407 U.S. 514, 530 (1972),

test.    See Moreno, 63 M.J. at 144 (Crawford, J., concurring in

part and dissenting in part).




                                  20
United States v. Haney, No. 05-0047/MC


     EFFRON, Judge (concurring in part and in the result):

     I concur in the lead opinion except for Part III, which

addresses post-trial delay.   Because any error was harmless

beyond a reasonable doubt, we need not reach the question of

whether Appellant has suffered a denial of due process from any

delay.   See United States v. Allison, 63 M.J. 365, 371 (C.A.A.F.

2006).
United States v. Haney, No. 05-0047/MC


     BAKER, Judge (concurring in part, dissenting in part, and

concurring in the result):

     The defense theory of coercion opened the door to rebuttal.

Fair rebuttal included the Government’s argument that when

Appellant said he wanted to see a lawyer, he did not in fact see

a lawyer.   This suggested for the purposes of rebuttal that

Appellant may not have felt the degree of coercion he

subsequently argued compelled him to sign a false confession.

It is also noteworthy that Appellant, not the Government,

initially opened the door to this line of reference.

     That is not all trial counsel did.   Trial counsel also

stated “[i]f he was innocent, the government is arguing, he

would have gone and seen a lawyer, and used that shield.”    That

is a bridge too far, for it does not address and rebut the claim

of false confession, nor was it “fair response” to defense

counsel’s argument.   It was improper comment on the right to

counsel as evidence of guilt or innocence, not lack of coercion.

See United States v. Riley, 47 M.J. 276, 279 (C.A.A.F. 1997)

(quoting United States v. Moore, 1 M.J. 390, 391 (C.M.A. 1976)).

While it is true that a person who confesses to a crime they did

not commit “falsely confesses,” that does not mean that any

argument addressed to innocence rebuts a claim of false

confession.   In our system, the exercise of the right to counsel

is not proof of guilt or innocence.
United States v. Haney, No. 05-0047/MC


     Since Appellant did not open that door, trial counsel’s

argument was not fair rebuttal.   It was obvious error.   The

principle at stake is fundamental to a system of justice

premised on the right to counsel and the adversarial role of

lawyers.   Therefore, this Court should not duck the issue, but

should say so.

     Nonetheless, I conclude that this error was harmless beyond

a reasonable doubt for the reasons stated in the lead opinion.




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