New NMCCA published decision

NMCCA released a published opinion on 23 August. United States v. Bredschneider, __ M.J. ___, No. NMCCA 200700025 (N-M. Ct. Crim. App. Aug. 23, 2007). But at the moment it appears to be available only on NKO and not on the court's publicly available web site. As a service to our readers who don't have access to NKO, here's a link to the opinion.

Okay, now that everyone can read it, let's discuss it, shall we?

In Bredschneider, the Navy-Marine Corps Court reasonably concludes that a 7-year delay between completion of the trial and docketing at NMCCA was facially unreasonable. Bredschneider, slip op. at 2. (This means that the case languished in limbo longer than my daughter has been alive. It therefore failed what I shall henceforth call the Shannon Standard.) In this case, the government even conceded that the delay was unreasonable and without excuse. Id., slip op. at 3. But NMCCA concludes that the final two Barker v. Wingo factors militate against the defense. First, at no point before the case finally reached NMCCA did Bredschneider complain about the delay. Second, and of far greater importance to the Navy-Marine Corps Court, the court found no prejudice resulting from the delay. While Bredschneider claimed that he had been denied employment opportunities at Meijer’s, Lowes, and Wal-Mart as a result of his lack of a DD-214, the court clearly disbelieved this assertion. It pointed out that the record of trial contained information indicating that Bredschneider planned to take over his father's business, and Bredschneider's affidavit indicates that he did so, albeit on a part-time basis. The court also contrasted this case with United States v. Jones, 61 M.J. 80 (C.A.A.F. 2005), where CAAF found prejudice due to Jones' inability to even be considered for employment due to his lack of a DD-214. In that case, Jones presented affidavits from relevant officials at a trucking company to establish the impact of his lack of a DD-214. In Bredschneider, on the other hand, the defense relied solely on appellant's own affidavit. Not good enough, ruled NMCCA, citing United States v. Gosser, 64 M.J. 93, 98 (C.A.A.F. 2006) (per curiam). In Gosser, in a portion of CAAF's per curiam opinion that appears to be joined only by Chief Judge Gierke and Judge Baker, CAAF wrote: "We conclude that Appellant has failed to substantiate any claim of prejudice. Appellant relies solely on the assertions of his defense counsel in post-trial clemency submissions to the convening authority. He has provided no substantive evidence from persons with direct knowledge of the pertinent facts, nor is there adequate detail to give the Government a fair opportunity to rebut the contention." Actually it appears from footnote 21 of the Gosser opinion that the defense was also relying on a post-action affidavit from Gosser himself. Usually such an affidavit, which if believed would provide the basis for relief, would at least entitle the defense to a DuBay hearing under United States v. Ginn, 47. M.J. 236 (C.A.A.F. 1997). But the Gosser per curiam and the published Bredschneider case appear to recognize a Ginn exception for claims in appellants' affidavits supporting the prejudice prong in a Moreno analysis.

Okay, now moving back to Bredschneider. Despite its finding of no prejudice, NMCCA holds that the delay violated the Fifth Amendment's due process clause:

We conclude that over seven years to docket this 77-page, fairly uncomplicated record of trial is egregious. Moreover, the lack of any explanation by the Government for this extraordinarily long delay weighs heavy in our analysis. Tolerating such a delay would adversely affect the public’s perception of the high standards of our military justice system. Accordingly, we find that the appellant was denied his due process right to speedy review and appeal, even without a specific showing of significant prejudice.

Bredschneider, slip op. at 4.

The court then tells us that "[b]ecause we are not convinced beyond a reasonable doubt that the due process violation in this case was harmless, we will grant relief." Id., slip op. at 5. Ultimately, the court sets aside 6 of the 18 months of confinement that Bredschneider presumably already served some 6 years ago. Id., slip op. at 9. But the court also affirmed forfeiture of all pay and allowances. In light of that, will Bredscheider actually receive any meaningful relief from the retroactive invalidation of 6 months of confinement? Perhaps, under the doctrine that no more than 2/3 of pay may be forfeited unless the accused is in confinement. See United States v. Warner, 25 M.J. 74 (C.M.A. 1987); R.C.M. 1107(d)(2)(discussion). If Bredschneider actually served more than 12 months of confinement before being placed on appellate leave, he may have a claim to 1/3 of the pay of an E-1 for that period. If not, then the Bredschneider opinion may be vulnerable to attack at CAAF for awarding a meaningless remedy. See United States v. Pflueger, 65 M.J. 127 (C.A.A.F. 2007).

But wait, there's more. Have you lost sleep wondering whether those M80 firecrackers in your garage subject you to liability under Article 134 for possession of an unregistered firearm? Well rest easy tonight knowing that NMCCA set aside Bredschneider's guilty plea to this offense. The relevant federal statute, 26 U.S.C. § 5845(f), excludes from its reach destructive devices that are "neither designed nor redesigned for use as a weapon." So, NMCCA assures us, "a device that explodes is not covered by the statute merely because it explodes. Statutory coverage depends upon proof that a device is an explosive plus proof that it was designed as a weapon." Bredschneider, slip op. at 7 (quoting United States v. Hammond, 371 F.3d 776, 780 (11th Cir. 2004)). The providence inquiry in Bredschneider's case did not include any "discussion or inquiry regarding whether the M80s were designed for use as a weapon." Bredschneider, slip op. at 8. The Navy-Marine Corps Court set aside the guilty plea on this basis, but emphasized that its holding was limited to "requiring that in order to support a conviction under 26 U.S.C. § 5861(d), military judges must inform the accused and obtain admissions establishing that the alleged unregistered firearm, in this case M80 firecrackers, was designed for use as a weapon." Id. This is an interesting standard, since it appears to go to the manufacturer's intent rather than the accused's.

Having wiped out Bredschneider's conviction for the offense of possessing four firecrackers, NMCCA proceeds to apply those abominations of the military justice system: United States v. Peoples, 29 M.J. 426 (C.M.A. 1990), and United States v. Sales, 22 M.J. 305 (C.M.A. 1986). This is one of those rare cases in which I can't complain about a court's application of Sales and Peoples to support upholding the sentence as originally adjudged. The offense that was at issue is truly insignificant. And, assuming that the relief granted for the post-trial delay is meaningful and not illusory, that revision of the sentence more than offsets any additional time Bredschneider might have received as the result of his heinous firecracker offense.

We may not have seen the last of Bredschneider. Presumably there is some Navy or Marine Corps appellate counsel out there right now listening to muzak while holding on DFAS's customer service line in an attempt to figure out whether the Navy-Marine Corps Court's decision will put any money back in Bredschneider's pocket or whether it was instead a cruel hoax purporting to retroactively restore six months of Bredschneider's liberty that were irretrievably lost. If it was the latter, Bredschneider's supplement to his petition for grant of review should be more compelling than most.