Wednesday, March 12, 2008

United States v. Allende: substitute authentication and appellate delay

In United States v. Allende, __ M.J. ___, No. 06-0908/NA (C.A.A.F. Mar. 12, 2008), CAAF resolves one remarkably narrow issue and then distinguishes one of its previous cases in a potentially significant manner. In Allende, Chief Judge Effron wrote for a unanimous court.

First the narrow issue. The TC in Allende authenticated the record "because of [the] absence of the military judge." On appeal, the defense maintained that was an insufficient justification for substitute authentication. NMCCA agreed but held the error was harmless because: "(1) the record was substantially verbatim; (2) Appellant's counsel received an opportunity to comment on any corrections prior to authentication; (3) Appellant did not raise any legal issues concerning the record's accuracy prior to the convening authority's action; and (4) Appellant did not allege on appeal that the record was inaccurate." Id., slip op. at 7.

CAAF held that NMCCA, having found the record substantially verbatim, did not err in holding that the erroneous authentication of the ROT by the TC did not materially prejudice Petty Officer Allende.

The second issue in the case involved appellate delay. Seven years elapsed between the trial and NMCCA's affirmance. Petty Officer Allende maintained that he had been denied employment due to his lack of a DD-214 during this period. But he presented no information from potential employers to verify his claim. This lack of corroboration proved fatal. CAAF dropped a "compare" cite to United States v. Jones, 61 M.J. 80, 84-85 (C.A.A.F. 2005), which it described as "relying upon affidavits from a prospective employer to confirm that the lack of a DD-214 caused the employer to deny his application for employment." Id., slip op. at 10.

The lesson is clear. When making an appellate delay claim based on interference with post-trial employment opportunities, no corroborating evidence from the employer equals no prejudice.


Anonymous said...

I think this is a terrible opinion with regard to post-trial delay. At some point, the amount of delay in a case shocks the conscience regardless of whether the appellant can show prejudice. Or at least it should. Absent a showing of prejudice, just how much delay must an appellant endure before a court concludes that letting the delay go unanswered would erode public confidence in the military justice system? We now know that seven years is not enough.

CAAF and NMCCA seem to think that potential employers would happily sign a sworn affidavit attesting to why they did not hire an applicant, if only they were asked. The reality is that most employers are reluctant to put in writing why they did not hire a candidate, let alone swear to it under oath. And let's be honest here, convicted criminals aren't exactly the most desirable applicants out there to begin with. I'm not saying it can't be done, I'm just saying that it won't happen in most cases. CAAF and NMCCA have effectively set a bar for relief too high for most appellants to clear.

For all CAAF's sound and fury in Moreno, opinions like Allende only serve to give NMCCA and convening authorities top cover for continuing to do business as usual. Very disappointing.

Anonymous said...

Unfortunately, its a Washington Nationals type term for Code 45 so far: 2-10. I guess NMCCA is getting some love from CAAF.

Anon #1 - I agree with your bottom-line, 7 years is a long time, and I wish there were some intermediate type of relief available - like cash compensation or free membership to CAAFLog - but because setting aside a punitive discharge is too tall an order, there is no real relief available.

But CAAF is probably right to set a high bar on the employment prejudice.

Anonymous said...

Should we assume these potential employers would hire the Appellant with the proper DD 214 that lists Bad Conduct Dishcarge for misconduct? Quite frankly, a DD 214 is not a bar to employment. Many people on active duty are hired without it for part-time jobs so why would emplyer XYZ need a DD 214? Potentially for hiring preferences but not hiring in general. And, as Anonymous 1 stated, an employer may be reluctant to sign an affidavit so how could the government counter such a claim? Lets face fact, isn't it more likely the Appellant was not hired because they are just bad people who have committed crimes and are probably not on the top of the applicant pool? These are, after all, CONVICTED criminals...are we shocked 7-11 is hesitant to hire?

Anonymous said...

This was a disappointing opinion for more reasons than one. First of all, the narrow issue was disposed of so easily only because of the construct in which NMCCA, and accordingly, CAAF, decided to address it. I suspect it's quite easy to look straight ahead when you have blinders on.

Secondly, it jumped out at me that CAAF essentially shifts the burden on post-trial delay. It seems to me that once the appellant submitted a credible-on-its-face affidavit, the burden should have shifted to the government to prove the presumed error was harmless beyond a reasonable doubt. The way CAAF addresses it here, the standard has now been raised with respect to the appellant, and the government need not prove anything at all, much less beyond a reasonable doubt.

Justin said...

NMCCA seems more lenient in US v. Bush __ MJ __ (Mar 11, 2008), at least with regard to burden-shifting in seven-year-post-trial-delay cases.

Anonymous said...

For what it's worth, either Code 20/NAMALA (I can't recall which) in the past has prepared letters to potential employers explaining appellate leave status and the fact that appellants are authorized to seek and accept other employment pending appeal (the standard letter I've seen also address the common "felony" v. "misdemeanor" question).
These letters seem to ease the concerns of most employers.

Frankly, after addressing this and similar potential sources of prejudice, I think the benefits of remaining on appellate leave for as long as possible generally far outweigh the costs for the average appellant (especially those having served their sentences to confinement).