                       UNITED STATES, Appellee

                                    v.

           Brian DEARING, Operations Specialist Seaman
                       U.S. Navy, Appellant

                              No. 05-0405

                       Crim. App. No. 200100291

       United States Court of Appeals for the Armed Forces

                         Argued March 1, 2006

                     Decided September 18, 2006

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

                                 Counsel

For Appellant: David P. Sheldon, Esq. (argued); Lieutenant
Stephen C. Reyes, JAGC, USNR (on brief); Philip Sundel, Esq.

For Appellee: Major Wilbur Lee, USMC, (argued); Commander
Charles N. Purnell II, JAGC, USN (on brief); Captain Glen R.
Hines, USMC.

Military Judge:   Clark A. Price


       This opinion is subject to revision before final publication.
United States v. Dearing, No. 05-0405/NA


      Chief Judge GIERKE delivered the opinion of the Court.

      It is a “basic rule that instructions must be sufficient to

provide necessary guideposts for an ‘informed deliberation’ on

the guilt or innocence of the accused.”1   In this case, the

pivotal issue is whether the military judge failed to provide a

correct instruction pertaining to Appellant’s right to exercise

self-defense.    The prosecution evidence presented Appellant as

the initial aggressor in a lethal altercation.   But the defense

evidence presented actions of members of a hostile group that

arguably escalated the conflict, thereby permitting Appellant to

use reasonable force to defend himself.    We hold that the

military judge erred in failing to instruct the panel on the

concept of escalation of the conflict as it relates the issue of

self-defense.    This significant defect in the instruction

requires us to reverse the decision of the United States Navy-

Marine Corps Court of Criminal Appeals.2

      This is not the only issue presently before this Court.3     We

also address Appellant’s assertion that he was denied a speedy


1
  United States v. Anderson, 13 C.M.A. 258, 259, 32 C.M.R. 258,
259 (1962) (citing United States v. Landrum, 4 C.M.A. 707, 713,
16 C.M.R. 281, 287 (1954); United States v. Acfalle, 12 C.M.A.
465, 470, 31 C.M.R. 51, 56 (1961)); see also Anthony v.
Louisville & Nashville R.R. Co., 132 U.S. 172, 173 (1889) (“The
object of the instructions was to impart such information as
would govern the jury in their deliberations and guide to a
right conclusion in their verdict.”).
2
  United States v. Dearing, 60 M.J. 892 (N-M. Ct. Crim. App.
2005).
3
  This Court granted review on two issues:

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United States v. Dearing, No. 05-0405/NA


post-trial and appellate review.           We hold that Appellant was

denied his due process right to speedy post-trial and appellate

review and grant appropriate relief.

                                 I.    FACTS

          A.    General Background of the “Road Rage” Incident

        Appellant’s alleged offenses arise from his involvement in

an on-base “road rage” fight.         The incident implicated Appellant

and three friends, riding in two cars, and three victims with

four additional friends, also in two cars.          Prior to this

incident, neither group knew the other group.          Several of those

involved in this incident had been drinking alcohol that

evening.       The actual incident lasted only a few minutes.

        The lower court identifies the alignment of the adversaries

and the circumstances of the fight:

          On the night of 18 September 1999, the appellant, his
    girlfriend, Teresa Wilson, and two other friends, Fireman
    (FN) Anthony S. Taylor, U.S. Navy, and his wife, Jennifer
    Taylor, went to see a movie at the Norfolk, Virginia Naval
    Base movie theater. The appellant and his girlfriend went
    to the movie theater complex in the appellant’s black Isuzu
    Amigo and the Taylor couple went separately in FN Taylor’s
    black Dodge Avenger.




   I.     WHETHER THE MILITARY JUDGE ERRED BY FAILING TO PROPERLY
          INSTRUCT THE PANEL REGARDING APPELLANT’S RIGHT AS AN
          AGGRESSOR TO EXERCISE SELF-DEFENSE IN AN ESCALATION OF
          FORCE SITUATION.
   II.    WHETHER APPELLANT WAS PROVIDED A TIMELY POST-TRIAL AND
          APPELLATE REVIEW UNDER THE UNIFORM CODE OF MILITARY
          JUSTICE AND THE UNITED STATES CONSTITUTION.

United States v. Dearing, 62 M.J. 226 (C.A.A.F. 2005).

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United States v. Dearing, No. 05-0405/NA


            On that same evening, MM3 Taylor and some of his
      friends, Aviation Ordnanceman Airman Apprentice (AOAA)
      Eldridge J. Wells, Jr., U.S. Navy, AOAN Keaton, and MMFN
      Polydore and his date, Elizabeth Hargrave, saw the same
      movie at the same theater. AOAA Wells and MM3 Taylor went
      to the movie theater with AOAN Keaton in his black Honda
      Accord, which AOAA Wells drove, and MMFN Polydore and his
      date went separately in MMFN Polydore’s tan Mazda Protege.
      Electrician’s Mate Third Class (EM3) Graham Charity, U.S.
      Navy, and his girlfriend, Aviation Storekeeper Third Class
      (AK3) Trisha Marshall, U.S. Navy, both friends of MMFN
      Polydore and MM3 Taylor, were picked up very near the movie
      theater by MMFN Polydore and his date, immediately after the
      movie ended.

            After the movie, all these individuals left the
      theater in the same vehicles they arrived in, with the
      exception of EM3 Charity and AK3 Marshall. Very shortly
      thereafter, a deadly stabbing incident occurred between the
      two movie-going parties in the Navy Exchange parking lot
      near the movie theater.

            As a result of what can only be described as a very
      brief “road rage” incident, partly fueled by alcohol,
      between some or all of the parties in the Dodge Avenger and
      the Honda Accord after leaving the movie theater parking
      lot, those parties shortly thereafter ended up in a verbal
      confrontation in the Navy Exchange parking lot. For
      whatever reason, the parties from both the Isuzu Amigo and
      the Mazda Protege also pulled into the Navy Exchange parking
      lot immediately following the other two vehicles. After the
      dust settled, the appellant had stabbed MM3 Taylor to death,
      and both MMFN Polydore and AOAN Keaton had also been
      seriously stabbed.4

                         B.   Trial Developments

       A general court-martial composed of officer and enlisted

members was convened to consider charges against Appellant that

included unpremeditated murder, assault with intent to inflict

grievous bodily harm, assault with a dangerous weapon (a knife),



4
    Dearing, 60 M.J. at 896.

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United States v. Dearing, No. 05-0405/NA


and obstruction of justice.5       Appellant pleaded not guilty to all

the charged offenses.

      At the court-martial, there was extensive testimony

regarding the involvement of several members of the group in

the fracas.     The trial was essentially a credibility contest

that involved “finger pointing” at other people to establish

responsibility and culpability for this incident.        In the

prosecution case-in-chief, witnesses presented Appellant as

both the aggressor and assailant in the fight.        In his defense,

Appellant testified and explained his involvement in the

incident as his attempt to protect his girlfriend.        Others also

testified in support of Appellant’s explanation of the

incident.

      Appellant testified that after his girlfriend got involved

in a verbal dispute with the men from the other group, he

intervened in order to protect her by pushing the men away with

both hands.     Appellant asserted that just as he raised his

hands, an unknown person, who was neither his own friend,

Anthony Taylor, nor his own girlfriend, hit him in the back of

the head.

      Appellant further testified that he heard someone ask, “Do

you have a gun?”      Appellant stated this statement made him


5
  These offenses are punishable under Articles 118, 128, and 134,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 918, 928,
934 (2000), respectively.

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United States v. Dearing, No. 05-0405/NA


concerned about his safety.        Appellant explained that he saw

the trunk of the black Honda was open, and he believed that

someone had retrieved a weapon from it.

       Appellant testified at this point he began fighting to

make his way out of the bad situation.         As he was fighting with

one person, another person was hitting Appellant in the side,

and yet another person kicked him.         Appellant complained that

he was pushed to the ground and grabbed around the neck as

another person hit him in the chest.

       Appellant testified that he then remembered the knife he

had in his pocket, pulled it out, and stuck it out twice in an

upward thrust.     In summary, Appellant asserted that he was

acting in self-defense to save his own life during the brutal

attack on him.

       At the conclusion of the presentation of the evidence and

before the military judge instructed the panel, civilian trial

defense counsel asked the military judge to give an instruction

addressing the issue regarding escalation of the conflict as it

related to the defense of self-defense.       Trial defense counsel

expressly relied on United States v. Cardwell6 as authority to

support his entitlement to the requested instruction.       The

record discussion of this issue covers five pages of the record

of trial.    The discussion ended with the military judge


6
    15 M.J. 124 (C.M.A. 1983).

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United States v. Dearing, No. 05-0405/NA


suggesting that the defense counsel, “Give [him] a piece of

paper on what you want.”

      Complying with this direction, civilian defense counsel

proffered the following instruction:

      Even if the accused was an aggressor, the accused is
      entitled to use self-defense, if the opposing party
      escalated the level of the conflict. Accordingly,
      even if the accused was the aggressor, if the
      opposing party escalated the conflict by placing the
      accused in reasonable fear that he was at risk of
      death or grievous bodily harm, the accused would then
      be entitled to use deadly force in self-defense.

      In support of the requested instruction, the defense argued

that even if Appellant were the initial aggressor, he was still

entitled to rely on the defense of self-defense if the opposing

party escalated the level of the conflict.

      The military judge refused to give the requested

instruction and declined to address the issue of escalation of

the conflict.    The military judge explained that in his view

“the instructions that I have drafted adequately cover the

issue.”   He also opined that “the key explanation is in the

definition of aggressor.”

      The military judge initially instructed the panel on the

defense of self-defense.       Most relevant to this case, the

military judge gave the following instruction to address the

issue of Appellant being an aggressor and its implication on the

issue of self-defense:




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United States v. Dearing, No. 05-0405/NA


         There exists evidence in this case that the accused
         may have been an aggressor. An “aggressor” is one
         who uses force in excess of that believed by him to
         be necessary for defense. There also exists evidence
         that the accused may have voluntarily engaged in
         mutual fighting. An aggressor, or one who
         voluntarily engaged in mutual fighting, is not
         entitled to self-defense unless he previously
         withdrew in good faith.

Emphasis added.     After hearing this instruction and

deliberating, the panel found Appellant guilty of the charged

offenses and adjudged a sentence to confinement for twenty-five

years, reduction to pay grade E-1, forfeiture of all pay and

allowances, and a dishonorable discharge.       The convening

authority approved the sentence as adjudged.

    C.   Ruling of the Navy-Marine Corps Court of Criminal Appeals

         The lower court held that the military judge’s instruction

to the members substantially covered the issues that the defense

requested to be covered.7       The lower court also concluded that

even if the defense-requested instruction had not been

substantially covered in the main charge to the members, the

military judge’s refusal to give the defense-requested

instruction on the escalation of violence did not deny Appellant

a fair trial because it did not deprive him of a defense or

seriously impair its effective presentation.8




7
    Dearing, 60 M.J. at 899.
8
    Id.

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United States v. Dearing, No. 05-0405/NA


                              II.   DISCUSSION

      A. Evaluation of Whether the Military Judge’s Self-Defense
    Instruction Adequately Addressed the Issue of Escalation of the
                                Conflict

        Rule for Courts-Martial (R.C.M.) 920(e)(3) provides:

“Required instructions.      Instructions on findings shall include

. . .    (3) A description of any special defense under R.C.M. 916

in issue[.]”     As self-defense is a special defense identified in

R.C.M. 916, if this defense was at issue in this case, the

military judge was obligated to give a correct instruction on

self-defense.9

        This Court has stated, “The touchstone against which we

measure the validity of the military judge’s refusal to give an

instruction on self-defense is whether there is in the record

some evidence from which a reasonable inference can be drawn

that the affirmative defense was in issue.”10     In light of

Appellant’s testimony in the present case, there was “some

evidence” to raise the issue of self-defense.     Indeed, the

9
   See United States v. Martinez, 40 M.J. 426, 431 (C.M.A. 1994)
(stating that “the court members were not given a correct legal
framework for evaluating appellant’s claim of self-defense”);
United States v. Jones, 3 M.J. 279, 280-81 (C.M.A. 1977) (“[T]he
primary obligation to adequately instruct on a material issue
[here self-defense] lies with the military judge.”); see
generally United States v. Groce, 3 M.J. 369, 370-71 (C.M.A.
1977) (stating that the multiple duties of the military judge
include a duty to tailor his instructions to fit the facts of
the case).
10
    United States v. Richey, 20 M.J. 251, 253 (C.M.A. 1985)
(quoting United States v. Black, 12 C.M.A. 571, 574, 31 C.M.R.
157, 160 (1961), quoting United States v. Ginn, 1 C.M.A. 453,
457, 4 C.M.R. 45, 49 (1952)) (quotation marks omitted).

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United States v. Dearing, No. 05-0405/NA


parties agree that the testimony of Appellant warrants an

instruction on self-defense.       Therefore, the focus of this

appeal is whether the military judge erred by failing to

properly instruct the panel on the issue of self-defense.11

      This Court reviews the adequacy of the military judge’s

instruction de novo.12     In United States v. Wolford,13 we

explained:

      If instructional error is found, because there are
      constitutional dimensions at play, [the appellant’s] claims
      must be tested for prejudice under the standard of harmless
      beyond a reasonable doubt. . . . The inquiry for
      determining whether constitutional error is harmless beyond
      a reasonable doubt is whether, beyond a reasonable doubt,
      the error did not contribute to the defendant’s conviction
      or sentence.14

The military judge generally instructed the panel on the issue

of self-defense.     The military judge’s self-defense instructions


11
   As the granted issue focuses on this issue, we do not address
the collateral question of whether the military judge erred in
not giving the specific instruction requested by the defense.
See United States v. Jackson, 15 C.M.A. 603, 613, 36 C.M.R. 101,
111 (1966) (Ferguson, J., dissenting) (“As self-defense was
placed in issue, it is necessary, as the granted question
indicates, to examine the instructions of the law officer in
order to determine their accuracy.”).
12
   United States v. Bean, 62 M.J. 264, 266 (C.A.A.F. 2005) (“We
review allegations of error involving mandatory instructions de
novo.” (citing United States v. Forbes, 61 M.J. 354, 357
(C.A.A.F. 2005); United States v. Smith, 50 M.J. 451, 455
(C.A.A.F. 1999)); see generally United States v. Kasper, 58 M.J.
314, 318 (C.A.A.F. 2003) (“The issue of whether the members were
properly instructed is a question of law, which we review de
novo.”).
13
   62 M.J. 418 (C.A.A.F. 2006).
14
   Id. at 420 (quoting United States v. Kreutzer, 61 M.J. 293,
298 (C.A.A.F. 2005), quoting United States v. Kaiser, 58 M.J.
146, 149 (C.A.A.F. 2003)) (quotation marks omitted).

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United States v. Dearing, No. 05-0405/NA


addressed the following:       (1) that Appellant must have had a

reasonable belief that death or grievous bodily harm was about

to be inflicted upon him; (2) that Appellant must have actually

believed that the amount of force he used was required to

protect against death or serious bodily harm; and (3) that

Appellant is not required to pause at his peril to evaluate the

degree of danger or the amount of force necessary to protect

himself.

      However, the military judge instructed the panel that the

Appellant may have been an aggressor.      The military judge also

defined aggressor as “one who uses force in excess of that

believed by him to be necessary for defense.”      Finally, the

military judge explained that a person who is considered an

“aggressor” or engaged in mutual fighting, without previously

withdrawing in good faith, is not entitled to argue self-

defense.   The decisional issue in this case arises from a

defense challenge to the completeness and correctness of the

self-defense instruction.

      Appellant argues that the military judge’s instructions

eviscerated Appellant’s case by foreclosing self-defense based

on a theory of escalation of the conflict.      Appellant asserts

that the military judge’s instruction incorrectly ignored the

principle of law that “Even a person who starts an affray is




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United States v. Dearing, No. 05-0405/NA


entitled to use self-defense when the opposing party escalates

the level of the conflict.”15

      Cardwell recognized that an initial aggressor is still

entitled to use deadly force in his own defense, just as he

would be if he withdrew completely from combat and was then

attacked by his opponent, in instances where the adversary

escalates the level of conflict.16         In Cardwell, this Court

explained, “The theory of self-defense is protection and not

aggression, and to keep the two in rough balance the force to

repel should approximate the violence threatened.”17

      This Court also explained the concept of escalation of the

conflict with this simple illustration:         “Thus, if A strikes B a

light blow with his fist and B retaliates with a knife thrust, A

is entitled to use reasonable force in defending himself against

such an attack, even though he was originally the aggressor.”18

At trial the civilian defense counsel expressly relied on

Cardwell in requesting an instruction that presented and

explained the theory of escalation of the conflict.

      In light of Cardwell, we test the adequacy of the military

judge’s instruction as it related to the Appellant’s self-

defense claim.

15
   Cardwell, 15 M.J. at    126 (citing United States v. Acoste-
Vargas, 13 C.M.A. 388,     32 C.M.R. 388 (1962); United States v.
Straub, 12 C.M.A. 156,     30 C.M.R. 156 (1961)).
16
   Id.
17
   Id. (quoting Straub,    12 C.M.A. at 160, 30 C.M.R. at 160.
18
   Id.

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United States v. Dearing, No. 05-0405/NA


      The instructions, given by the military judge, did not

adequately cover the concept of escalation of the conflict.      In

our view the military judge failed in his duty to give an

“instruction as a whole [that] provides meaningful legal

principles for the court-martial’s consideration.”19      In fact,

the military judge did not even address the concept of

escalation of the conflict.       The military judge compounded this

error by giving an instruction that severely limited the

military members’ ability to consider fairly Appellant’s self-

defense theory.     The military judge erroneously instructed the

panel that Appellant, if an aggressor or a person voluntarily

engaged in mutual fighting, was not entitled to self-defense

unless he previously withdrew in good faith.

      This instruction required Appellant to establish that he

withdrew before he used reasonable force to defend himself.

Effectively, if the members found Appellant to be an aggressor

or one who engaged in mutual fighting, this instruction

precluded him from arguing that he had no choice but to defend

himself against the escalating violence perpetrated against him.

According to testimony offered by the defense, Appellant was

hit, kicked, beaten, and knocked to the ground so that he was

not in a position to retreat because of the attack on him.      In


19
  United States v Smith, 8 C.M.A. 582, 584, 25 C.M.R. 86, 88
(1958); see United States v. Truman, 19 C.M.A. 504, 507, 42
C.M.R. 106, 109 (1970).

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United States v. Dearing, No. 05-0405/NA


light of this defense evidence, we agree with Appellant that the

lower court erred when it concluded that the military judge’s

instruction sufficiently covered the issues that were supposed

to be addressed.

      The Government argues that the defense evidence, including

Appellant’s testimony, fails to support the defense-requested

instruction relating to escalation of the violence.   As a

result, the Government contends that Appellant never needed the

unique instructions drafted by the defense counsel.   We reject

this argument based on the prosecution’s evidence that

established Appellant’s early role in the incident as a possible

aggressor, the defense evidence of mutual combat, and an

escalation of the conflict by others.20

      We acknowledge that the instruction trial defense counsel

presented to the military judge relating to the theory of

escalation of the conflict was not perfect.   The defense-

requested instruction was correct, however, in its statement of

the legal theory of escalation of the conflict.   The only defect

in the requested instruction was an imprecise statement as to

the force that Appellant might lawfully use in response to an


20
  United States v. Jackson, 12 M.J. 163, 167 (C.M.A. 1981)
(“[T]he instructional duty arises whenever ‘some evidence’ is
presented to which the fact finders might ‘attach credit if’
they so desire.” (quoting United States v. Evans, 17 C.M.A. 238,
242, 38 C.M.R. 36, 40 (1967))); R.C.M. 920(e)(3) Discussion
(explaining that an instruction is required when there is “some
evidence . . . upon which members might rely if they choose”).

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United States v. Dearing, No. 05-0405/NA


escalation, stating that “the accused would then be entitled to

use deadly force in self-defense.”         It is unclear whether trial

defense counsel tailored the instruction to support his argument

or relied on language in a footnote of Cardwell that explained a

situation where another accused was “entitled to use deadly

force in his own defense.”21       A technically precise instruction

should have asserted only that “the accused would then be

entitled to use force the accused believed was necessary for

protection against death or grievous bodily harm.”22

      This deficiency in the defense proposed instruction does

not excuse the military judge from his duty to instruct the

panel on the essential defense theory of escalation of the

conflict as it related to self-defense.23        Based upon the

testimony favoring Appellant, the military judge was required

to tailor his instructions to the facts in the case and to give

an instruction that addressed the concept of escalation of the

conflict.24    His failure to do so was a deficiency that rendered


21
   15 M.J. at 126 n.3.
22
   See R.C.M. 916 (e)(1)(B).
23
   See United States v. McMonagle, 38 M.J. 53, 58 (C.M.A. 1993)
(“The military judge has an affirmative, sua sponte duty to
instruct on special defenses reasonably raised by the
evidence.”); R.C.M. 920(e)(3).
24
   See Martinez, 40 M.J. at 431 (“The military judge has a duty
to tailor his instructions to fit the facts of the case.”).
Consistent with Cardwell, a proper self-defense instruction
should have informed the members of the following: “Even a
person who starts an affray is entitled to use self-defense when
the opposing party escalates the level of the conflict. 15 M.J.
at 126. One who claims to be “subjected . . . [to] escalation

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United States v. Dearing, No. 05-0405/NA


the instruction on self-defense erroneous and incomplete.      As to

the impact of this instructional error, this Court has stated,

“Once it is determined that a specific instruction is required

but not given, the test for determining whether this

constitutional error was harmless is whether it appears ‘beyond

a reasonable doubt that the error complained of did not

contribute to the verdict obtained.’”25

      We conclude that the error in this case is not harmless

beyond a reasonable doubt.       The defense theory of escalation of

the conflict was a vital point in the case.      This instructional

error eviscerated the Appellant’s self-defense theory rooted in

the concept of escalation of the conflict.      Because of this

instructional error, Appellant was denied the opportunity to

argue that he had a right to exercise self-defense due to the

escalating violence being perpetrated against him.      Moreover,

without a correct self-defense instruction, the members did not

have guideposts for an “informed deliberation.”26

      In our view the appropriate remedy for this constitutional

violation is that we set aside only the guilty findings related

to Appellant’s murder and aggravated assault offenses (Charge I


of the conflict” is “allow[ed] to use reasonable force in
defending against it.” Id.
25
   United States v. McDonald, 57 M.J. 18, 20 (C.A.A.F. 2002)
(quoting Chapman v. California, 386 U.S. 18, 24 (1967)).
26
   Anderson, 13 C.M.A. at 259, 32 C.M.R. at 259; see also Truman,
19 M.A. at 507, 42 C.M.R. at 109 (stating that a proper
instruction “provides meaningful legal principles for the court-
martial’s consideration”).

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United States v. Dearing, No. 05-0405/NA


and Charge II) as the issue of self-defense was only applicable

to these offenses.     We conclude that there was no danger of

prejudicial spillover from Appellant’s murder offenses to the

obstruction of justice offense.

       Addressing the concept of spillover, this Court explained

that the focus of concern is whether “overwhelming proof on one

[offense that is set aside] will “spill over” and prejudice a

legitimate defense to another.27           In this case, there is no such

danger in light of the unique trial developments arising from

Appellant’s testimony.

       Appellant testified on the merits and admitted that he told

one friend, “If it comes down to it, we were never at the

movies.”    Appellant also admitted that it was his intent to

influence this friend and he attempted to do so.           Appellant’s

testimony is tantamount to a judicial confession to obstruction

of justice as Appellant effectively admitted that he was

attempting to have his friend present a false alibi and thereby

thwart the police investigation into the stabbing incident.

       Because of Appellant’s testimony, his conviction of the

Article 134, UCMJ, offense of obstruction of justice was

independent of and unaffected by either the murder or aggravated

assault offenses.     Therefore, we conclude that there was no




27
     United States v. Haye, 29 M.J. 213, 215 (C.M.A. 1989).

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United States v. Dearing, No. 05-0405/NA


prejudicial spillover that tainted the guilty finding to

obstruction of justice.28

      B.   Evaluation of Post-Trial Delay in Appellate Process

      Servicemembers have a due process right to timely review

and appeal of courts-martial convictions.29       Appellant asserts

that the 1,794 days for a first-level appellate review by a

service court of criminal appeals was a constitutional due

process violation.

      In Toohey,30 this Court stated the legal test for

determining whether Appellant’s due process right was violated

by excessive post-trial delay.        This Court identified the

following four factors to determine this issue:       “(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.”31




28
   See McMonagle, 38 M.J. at 61 (concluding that instructional
error as to mistake of fact was prejudicial error only to a
murder offense and not to other offenses including obstruction
of justice).
29
   Toohey v. United States, 60 M.J. 100, 101 (C.A.A.F. 2004).
30
    In Toohey, this Court held that the appellant established a
threshold showing of facially unreasonable delay, even without
showing prejudice. Id. at 103. This Court remanded 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. at 104.
31
   Id. at 102 (citing Barker v. Wingo, 407 U.S. 514, 530
(1972)).



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United States v. Dearing, No. 05-0405/NA


      More recently in United States v. Moreno,32 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.”33      The standard of review

for a claim of denial of a due process right arising from denial

of speedy post-trial review and appeal is de novo.34      Consistent

with this precedent, we evaluate these four factors.

                         1.   Length of the delay

       The lower court acknowledged that “[t]he preparation of

the necessary pleadings for appellate review in this case has

taken longer . . . than review of a court-martial of this length

and complexity should normally take.”35      We agree.

      Appellant was sentenced on March 14, 2000.     When the

convening authority took action on this case on January 12,

2001, 304 days had elapsed since Appellant was sentenced.       This

case was docketed at the lower court on February 7, 2001.       Over


32
   63 M.J. 129 (C.A.A.F. 2006).
33
   Id. at 136.
34
   Id. at 135 (citing United States v. Rodriguez, 60 M.J. 239,
246 (C.A.A.F. 2004); United States v. Cooper, 58 M.J. 54, 58
(C.A.A.F. 2003)).
35
   Dearing, 60 M.J. at 905. The lower court also concluded that
no relief from this delay was warranted because there was no
lack of diligence in the post-trial processing of the case and
no indication of deliberate or malicious intent that caused the
delay in Appellant’s post-trial appellate process. Id. We
proceed to apply the other Barker factors to determine if
Appellant is entitled to relief for this excessive post-trial
delay.

                                     19
United States v. Dearing, No. 05-0405/NA


four years later, on February 10, 2005, the lower court decided

this case.    The almost five years for a first-level appellate

review by a service court of criminal appeals is facially

unreasonable as it is clearly excessive and inordinate.       This

Barker factor weighs heavily in favor of Appellant.

                        2.   Reasons for the delay

       This case is neither unusually long nor complex, and there

is no reasonable explanation for why it took the convening

authority over ten months to take action on Appellant’s case.

We note that Appellant’s assigned appellate defense counsel had

problems preparing this case.        Over two years, original and

successor military appellate defense counsel filed twenty-one

motions for enlargements of time that the lower court granted.

When the court refused to grant further enlargements, military

appellate defense counsel filed a brief raising issues Appellant

had asserted pursuant to United States v. Grostefon36 on April

18, 2003.    After the Government filed its pleading on July 18,

2003, Appellant hired civilian appellate defense counsel who

entered an appearance on August 1, 2003.       This counsel filed a

brief on behalf of Appellant on October 17, 2003.

       We acknowledge that the defense-requested delay is

significant.    We stated in Diaz v. Judge Advocate General of the




36
     12 M.J. 431 (C.M.A. 1982).

                                     20
United States v. Dearing, No. 05-0405/NA


Navy37 and reaffirmed in Moreno38 that the Government has the

ultimate responsibility for the staffing and administrative

management of the appellate review process for cases pending

before lower court.      Consistent with our decisions in Diaz and

Moreno, we decline to hold Appellant responsible for the lack of

“institutional vigilance” that should have been exercised in

this case.39

      This case was docketed, with briefs filed by the parties,

for almost fifteen months before the lower court issued its

decision.    Although this was a lengthy period, “we apply a more

flexible review of this period, recognizing that it involves the

exercise of the Court of Criminal Appeals’ judicial decision-

making authority.”40

      The Government has not presented legitimate reasons or

exceptional circumstances for the excessive post-trial delay

that is unrelated to the lower court’s decisional period.      In

these circumstances, we conclude that this second Barker factor

also weighs heavily in favor of Appellant.

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

      Appellant did not assert his right to a timely review to

the lower court.     However, in Moreno, we stated, “We also


37
   59 M.J. 34, 38 (C.A.A.F. 2003).
38
   63 M.J. at 137.
39
   Id. (quoting Diaz, 59 M.J. at 39-40) (quotation marks
omitted).
40
   Id.

                                     21
United States v. Dearing, No. 05-0405/NA


recognize the paradox of requiring Moreno to complain about

appellate delay either to his appellate counsel who sought

multiple enlargements of time because of other case commitments

or to the appellate court that granted the enlargements on a

routine basis.”41    This is the situation in the present case also

as military appellate defense counsel filed twenty-one motions

for enlargements that the lower court granted.     Therefore,

consistent with the approach in Moreno, we would normally weigh

this factor only slightly against Appellant.42

       In our view the facts of this case invite further analysis

of this factor.     We note that Appellant personally did voice his

concerns about the unreasonable appellate delay.     On January 14,

2002, in a communication with his appellate defense counsel,

Appellant objected to his case “sitting idle for almost (1) one

year” and inquired why he was “constantly put off in [his] post-

trial proceedings.”      Also, on March 10, 2002, Appellant wrote a

congressman complaining that his “appellate defense counsel has

neglected to show any interest at all in helping me.”      In light

of Appellant’s communications, we conclude that this factor also

weighs in favor of Appellant.




41
     Id. at 138.
42
     Id.

                                     22
United States v. Dearing, No. 05-0405/NA


                               4.   Prejudice

        We are most sensitive to this final factor that relates to

any prejudice either personally to Appellant or the presentation

of his case that arises from the excessive post-trial delay.43

        In our view, the lack of “institutional vigilance” in this

case resulted in detailed military appellate defense counsel not

filing a timely pleading to address the merits of Appellant’s

case.    After granting twenty-one defense enlargements, the lower

court indicated that it would decide the case without a brief if

one was not filed by March 14, 2003.       Thereafter, detailed

military appellate counsel merely submitted a Grostefon

submission.    Ultimately, Appellate hired a civilian appellate

counsel who did file a substantive brief on Appellant’s behalf.

From these factual developments, it appears that a lack of

“institutional vigilance” effectively denied Appellant his

statutory right to the free and timely professional assistance

of detailed military appellate defense counsel.44      This prejudice

weighs most heavily in Appellant’s favor.

        As Appellant’s appeal is meritorious as to Issue I, he has

served oppressive incarceration during the appeal period.45


43
   Id. at 138-41.
44
   See Article 70, UCMJ, 10 U.S.C. § 870 (2000).
45
   We note that Appellant was sentenced on March 14, 2000, and is
presently incarcerated. The maximum sentence for the offense of
obstruction of justice is five years. Manual for Courts-
Martial, United States pt. IV, para. 96.e. (2005 ed.). In our
view Appellant has already suffered prejudice as he has served

                                     23
United States v. Dearing, No. 05-0405/NA


Here, Appellant continues to serve the twenty-five-year sentence

to confinement under a conviction that has now been set aside.

The appellate delay has resulted in Appellant enduring prolonged

incarceration awaiting this favorable decision on his appeal.

This is a circumstance that weighs in the favor of Appellant.46

      Although one facet of prejudice is where an appellant

demonstrates “particularized anxiety or concern that is

distinguishable from the normal anxiety experienced by prisoners

awaiting an appellate decision,”47 Appellant has not made such a

showing here.

      The last consideration is whether there is any “negative

impact on his ability to prepare and present his defense at the

rehearing.”48    We are most concerned that “Due to the passage of

time, witnesses may be unavailable [and] memories may have faded

. . . .”49   “In order to prevail on this factor an appellant must

be able to specifically identify how he would be prejudiced at a

rehearing due to the delay.       Mere speculation is not enough.”50

Presently, Appellant has not been able to establish specific

harm that he would encounter at a rehearing and he has not

demonstrated prejudice.



more than the maximum punishment for the single offense that he
stands convicted. See Moreno, 63 M.J. at 139.
46
   Id.
47
   Id. at 140.
48
   Id.
49
   Id.
50
   Id. at 140-41 (footnote omitted).

                                     24
United States v. Dearing, No. 05-0405/NA


          However, as we noted in Moreno, our present analysis of

this issue may not terminate a later inquiry into the issue of

prejudice from post-trial delay:

          We are mindful of the difficulty that an appellant and his
          appellate defense counsel may have at this juncture of the
          process in identifying problems that would hinder an
          appellant’s ability to present a defense at rehearing. If
          an appellant does experience problems in preparing for
          trial due to the delay, a Sixth Amendment speedy-trial
          motion could appropriately be brought at the trial level.51

Consistent with Moreno, Appellant may in any later proceeding

demonstrate prejudice arising from post-trial delay.

                     5.   Conclusion –- Barker factors

          Our consideration of the four Barker factors leads us to

conclude that Appellant was denied his due process right to

speedy review and appeal.       The unexplained and unreasonably

lengthy delay and specific prejudice arising from the appellate

delay, effectively denied Appellant his right to the free

professional assistance of detailed military appellate defense

counsel, resulting in a due process violation.       We turn next to

the relief appropriate for this constitutional violation.

     6.     Relief afforded to Appellant because of the due process
               violation for denying speedy appellate review

          As this due process error is one of constitutional

magnitude, we are obliged to test this error for harmlessness.

Indeed, “‘the Government must show that this error was harmless



51
     Id. at 141 n.19.

                                     25
United States v. Dearing, No. 05-0405/NA


beyond a reasonable doubt.’”52       In light of our disposition of

Issue I and our conclusion that Appellant has suffered prejudice

under the Barker analysis, we cannot say that the error arising

from the post-trial delay is harmless beyond a reasonable doubt.

      Indeed, in our view, this case involves two forms of actual

prejudice.    First, Appellant has endured oppressive

incarceration because he has been denied a timely review of his

meritorious claim of legal error for over six years while he was

incarcerated.53    Second, the lack of “institutional vigilance”

resulted in appellate delay that effectively denied Appellant

his statutory right to the free and timely professional

assistance of detailed military appellate defense counsel.       This

error and its impact on Appellant and his appeal mandate relief.

      As to relief from the due process violation arising from

the excessive and unreasonable post-trial delay, we seek to

fashion a remedy that will afford Appellant meaningful relief.

There is a wide range of relief options available.54


52
   United States v. Brewer, 61 M.J. 425, 432 (C.A.A.F. 2005)
(quoting United States v. Miller, 47 M.J. 352, 359-60 (C.A.A.F.
1997)).
53
   See supra note 45.
54
   In Moreno we stated:

      The nature of that relief will depend on the circumstances
      of the case, the relief requested, and may include, but is
      not limited to: (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

                                     26
United States v. Dearing, No. 05-0405/NA


      We observe that we have already provided Appellant some

relief arising from the error related to Issue I.   But we

conclude that further relief is warranted.   However, we view

dismissal with prejudice of the charges inappropriate as

Appellant has not demonstrated any prejudice to defend against

the charges at a rehearing.

      In this case, as in Moreno, we are obliged to fashion a

remedy where we have authorized a rehearing55 and there is

presently no direct sentence relief that we can provide

Appellant.    In this circumstance we will afford Appellant relief

depending on the later developments in this case as follows:

(1) In the event of a rehearing at which the adjudged sentence

includes confinement, the convening authority shall direct that

Appellant be credited with an additional 365 days of confinement

served; (2) In the event that the adjudged sentence at a

rehearing does not include confinement, the convening authority

shall approve no portion of a sentence exceeding a punitive

discharge.


      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. Clearly this
      range of meaningful options to remedy the denial of speedy
      post-trial processing provides reviewing authorities and
      courts with the flexibility necessary to appropriately
      address these situations on a case-by-case basis.

63 M.J. at 143.
55
   The rehearing, whether on findings and sentence or just on
sentence, is free to adjudge an appropriate sentence. See
United States v. Davis, 63 M.J. 171, 175 (C.A.A.F. 2006).

                                     27
United States v. Dearing, No. 05-0405/NA


                                  DECISION

      The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is reversed only as to Charge I and Charge

II and both specifications thereunder and the sentence.    The

findings of guilty thereon and the sentence are set aside.   The

decision of the United States Navy-Marine Corps Court of

Criminal Appeals as to Charge III is affirmed.   The record of

trial is returned to the Judge Advocate General of the Navy.     A

rehearing is authorized.




                                     28
United States v. Dearing, No. 05-0405/NA


       BAKER, Judge (concurring in result):

       With respect to the appellate delay, I concur in this

Court’s conclusion that Appellant suffered actual prejudice as a

result of enduring “oppressive incarceration because he has been

denied a timely review of his meritorious claim of legal error

for over six years while he was incarcerated.”   However, I find

prejudice on this recognized Barker1 basis alone, and therefore,

I concur in the result.

       Although the appellate delay in this case was excessive,

the facts are not sufficiently developed for this Court to

conclude that a “lack of ‘institutional vigilance’” prejudiced

Appellant by denying him “his statutory right to the free and

timely professional assistance of detailed military defense

counsel.”    Importantly, if Appellant was prejudiced by a denial

of his right to timely counsel, it is not clear how this case is

distinguished from the many other cases of appellate delay we

have reviewed involving twenty or more defense enlargements for

time, where we did not find that the appellants were prejudiced

by a denial of their timely right to military counsel and

affirmed.    As a matter of fairness and principle, like cases

should be treated in a like manner.

       If there is a difference distinguishing these cases of

comparable multiple enlargements, it must reside in defense

1
    Barker v. Wingo, 407 U.S. 514 (1972).
United States v. Dearing, No. 05-0405/NA


counsel’s submission of a Grostefon2 brief in this case.     After

twenty-one enlargements of time, appellate defense counsel was

given a hard deadline of thirty days in which to file a brief.

Appellate defense counsel responded by filing a Grostefon brief.

We do not know whether appellate defense counsel did so at the

eleventh hour after a cursory review of the record or, whether

she did so after a careful review of the record and the exercise

of her best judgment that a Grostefon brief was appropriate.

       If appellate defense counsel’s submission of a Grostefon

brief is the only event distinguishing this case from other

cases involving comparable enlargements of time, we should

review counsel’s submission of the Grostefon brief for

ineffective assistance of counsel, as opposed to finding

prejudice based on a denial of right to counsel.

       The appellate delay problem in this case was that the

submission of the Grostefon brief was preceded by over 1,700

days of unreasonable and excessive delay in appellate

processing.    The appellate delay prejudice arises because,

consistent with the framework set forth in United States v.

Moreno, 63 M.J. 129 (C.A.A.F. 2006), Appellant waited six years

for his meritorious claim to be heard and addressed.




2
    United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).

                                  2
United States v. Dearing, No. 05-0405/NA


     CRAWFORD, Judge (dissenting):

     I respectfully dissent because the majority continues a

pattern of refusing to give deference to the President’s

legislatively mandated rulemaking authority in contravention of

established principles of separation of powers.   See United

States v. Moreno, 63 M.J. 129, 144 (C.A.A.F. 2006) (Crawford,

J., concurring in part and dissenting in part).   Under Article

36, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 836

(2000), the President has the authority to prescribe

“[p]retrial, trial, and post-trial procedures, including modes

of proof” unless these provisions are inconsistent with the

United States Constitution, or the UCMJ.   When one enters a

fight as an aggressor or a mutual combatant, even without a

weapon, the natural and probable consequences of such action

includes the possibility that the fight may escalate and the

other side may overcome the aggressor or the mutual combatant.

Recognizing the natural and probable consequences of being an

aggressor or mutual combatant, the President has promulgated

Rule for Courts-Martial (R.C.M) 916(e)(4), which includes the

availability or nonavailability of the defense of self-defense.

It provides:

     The right to self-defense is lost and the defenses
     described in subsections (e)(1), (2), and (3) of this
     rule shall not apply if the accused was an aggressor,
     engaged in mutual combat, or provoked the attack which
     gave rise to the apprehension, unless the accused had
United States v. Dearing, No. 05-0405/NA


     withdrawn in good faith after the aggression, combat,
     or provocation and before the offense alleged
     occurred.

     Generally, the prosecution has the burden of proving beyond

a reasonable doubt that a defense does not exist.    R.C.M.

916(b).   However, R.C.M. 916(e)(4) provides that in homicide and

assault cases, the right of self-defense is lost where the

individual is the aggressor or a mutual combatant.

     By refusing to give deference to the President, the

majority selectively1 rejects the hierarchy2 of this rule set


1
  This is not the first time that this Court has rejected rules
set forth by the President. See, e.g., United States v.
Mizgala, 61 M.J. 122, 130 (C.A.A.F. 2005) (Crawford, J.,
dissenting in part and concurring in the result) (noting that
the majority ignored the waiver rule set forth in R.C.M.
707(e)); see also United States v. Cary, 62 M.J. 277, 280
nn. 1-2 (C.A.A.F. 2006) (Crawford, J., concurring in the result)
(setting forth several cases in which this Court refused to
follow Supreme Court precedent when examining a constitutional
right or when interpreting the same or similar statute); see,
e.g., United States v. Miller, 63 M.J. 459 (C.A.A.F. 2006)
(requiring an addition to R.C.M. 910 advice regarding collateral
consequences); Moreno, 63 M.J. at 137-44 (setting forth speedy
review rules); United States v. Key, 57 M.J. 246, 249 (C.A.A.F.
2002) (Crawford, C.J., concurring in part and in the result)
(noting that despite the majority’s holding there is no
requirement that a staff judge advocate’s recommendation on a
request for deferment be served on defense counsel); United
States v. Becker, 53 M.J. 229 (C.A.A.F. 2000) (applying R.C.M.
707 to sentence rehearings). However, we have recommended the
executive engage in rulemaking to eliminate appellate
litigation. See e.g., United States v. Buller, 46 M.J. 467, 469
n.4 (C.A.A.F. 1997).
2
  United States v. Lopez, 35 M.J. 35, 39 (C.M.A. 1992)
(discussing the hierarchical sources of rights in the military);
see also United States v. Scheffer, 523 U.S. 303, 309-18 (1998)
(Military Rules of Evidence are binding on the Court of Appeals
for the Armed Forces unless unconstitutional).

                                 2
United States v. Dearing, No. 05-0405/NA


forth by the President.   The majority relies on United States v.

Cardwell, 15 M.J. 124 (C.M.A. 1983), to conclude that the

defense of self-defense allows an aggressor to “use deadly force

in his own defense, just as he would be if he withdrew

completely from combat and was then attacked by his opponent, in

instances where the adversary escalates the level of conflict.”

I agree that is the proposition put forth in Cardwell,3 however,

I note that Cardwell is another occasion where this Court

expanded the law without the authority to do so.   Cardwell,

decided on March 14, 1983, did not discuss the hierarchy or the

hornbook rule that this Court is bound by the President’s rule

unless it is unconstitutional or violates a statute.   In 1984,

the President executed the Manual for Courts-Martial, United

States (1984 ed.)(MCM).   Since 1984, the President has made

twelve4 changes to the MCM, yet, in spite of the ruling in

Cardwell, he has never saw fit to modify R.C.M. 916(e)(4) to


3
     In a situation . . . where the accused had entered
     willingly into combat with the expectation that deadly
     force might be employed, he is not allowed to claim
     self-defense. However, where an accused in his
     original attack has not employed deadly force and his
     adversary then escalates the conflict, he is entitled
     to use deadly force in his own defense, just as he
     would be if, after initially attacking, he had
     withdrawn completely from combat and was then attacked
     by his opponent.

15 M.J. at 126 n.3.
4
  See MCM, Historical Executive Orders app. 25 at A25-1 to A25-77
(2005 ed.).

                                 3
United States v. Dearing, No. 05-0405/NA


allow for an aggressor to regain his right to self-defense if

the “victim” or adversary escalates the level of conflict.    The

Cardwell case is not mentioned in the discussion of the rule or

in the analysis to the rule.   Common sense would seem to

indicate that the President has specifically decided not to

address or modify the defense of self-defense to allow the

aggressor to regain the right to self-defense in situations

other than after a complete withdrawal from the affray.

     R.C.M. 916(e)(4) is not inconsistent with the punitive

articles in the UCMJ.   See Articles 77-134, UCMJ, 10 U.S.C. §§

877-934 (2000).   Because the military judge’s instructions were

consistent with R.C.M. 916 as created by the President, I would

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

of Criminal Appeals.




                                 4
