Friday, March 14, 2008

New published NMCCA decision

Here's a link to United States v. Bush, __ M.J. ___, No. NMCCA 200700137 (N-M. Ct. Crim. App. Mar. 11, 2008). Senior Judge Geiser writes for a unanimous panel.

As the first line below the caption indicates, PFC Bush was sentenced on 5 January 2000. NMCCA decided his case on 11 March 2008. The bulk of the delay occurred between 16 November 2000, when the CA acted on the case, and 13 February 2007, when it was originally docketed with NMCCA. (NMCCA then sent it back to correct a post-trial processing error.) NMCCA concludes both that PFC Bush's due process right to speedy appellate processing was violated and that he was prejudiced as a result.

An affidavit from the Pendleton review officer indicated that the record was mailed to NMCCA in February 2001. But it was never received. NMCCA blamed Pendleton for this disconnect: "there is no evidence the CA expended any effort in [the six years after it was mailed] to ensure the record was properly received by this court. Rudimentary tracking and receipt confirmation procedures by the mailing command might have shortened the delay considerably." Bush, slip op. at 3.

In counterpoint to CAAF's opinion in United States v. Allende, __ M.J. ___, No. 06-0908/NA (C.A.A.F. Mar. 12, 2008), which was published a day after NMCCA issued Bush, NMCCA follows this rule: "In evaluating whether the appellant has sufficiently met his burden of proof, we will accept the appellant's post-trial affidavit as true." Bush, slip op. at 3 (quoting United States v. Scalarone, 52 M.J. 539, 544 (N-M. Ct. Crim. App. 1999), aff'd, 54 M.J. 114 (C.A.A.F. 2000)). NMCCA thus accepts PFC Bush's statement in his declaration that "he repeatedly contacted both his command and the Navy-Marine Corps Appellate Leave Activity (NAMALA), inquiring about the instant case" because "he needed his DD Form 214 to maintain his employment." Bush, slip op. at 3.

PFC Bush also alleged that "he was denied employment by the Costco store in Huntsville, Alabama, three to four years after his trial, specifically because he lacked his final discharge papers (DD Form 214)." Bush, slip op. at 4. NMCCA favorably observed that PFC Bush "indentified a specific store in a specific town during a specific timeframe" and "specifically asserts the reason he was denied employment was directly tied to dilatory post-trial processing of his court-martial." Id. NMCCA finds "this was 'adequate detail' to permit the Government to inquire further in order to verify or dispute the appellant's assertions." Id. Because the government failed to refute PFC Bush's allegations, NMCCA found that he had established prejudice.

This might have set up a conflict with Allende. NMCCA appears to attempt to insulate its prejudice ruling from further review by holding that even if PFC Bush hadn't shown prejudice, "a delay of over seven years to finally docket this 143-page guilty plea record of trial is egregious and, even in the absence of specific prejudice, constitutes a due process violation." Bush, slip op. at 5. The very next sentence in the opinion, however, seems somewhat inconsistent with that otherwise clear statement: "The Government's inadequate explanation for the delay and its failure to seek evidence to verify or refute the appellant's claims weighs [sic] heavily in this regard." Id. But "appellant's claims" were that he complained to his command and NAMALA about the appellate delay and that he wasn't hired by Costco as a result of the delay. Why would the government's failure to refute the latter claim weigh against the government at all, much less heavily, "even in the absence of specific prejudice"?

Then, in assessing whether the error was harmless beyond a reasonable doubt, NMCCA again finds "that the appellant suffered employment prejudice." Id. And NMCCA then again thwacks the government for failing "to undertake any efforts to verify or refute the appellant's assertions concerning his attempted contact with his command and NAMALA or his employment difficulties." Id. And then in fashioning a remedy, NMCCA again emphasizes that the "lax post-trial processing . . . resulted in prejudice to appellant's employment opportunities." Bush, slip op. at 5-6.

NMCCA then drastically reduces the sentence from a DD, confinement for six years, total forfeitures, and reduction to E-1 to a BCD. How much money that will net PFC Bush I have no idea. But the answer may be: zero.

The opinion is an analytic mess. And its reasoning is undercut by CAAF's Allende opinion, which was released the following day. Petty Officer Allende's case languished for seven years between sentence and NMCCA's decision. He, too, alleged interference with employment opportunities due to his lack of a DD 214, though it appears that Petty Officer Allende was less specific than was PFC Bush. CAAF appeared to rule unanimously that an affidavit or declaration from an appellant was insufficient proof of interference with post-trial employment opportunities:

According to Appellant, a number of potential civilian employers were unwilling to consider him because he could not provide them with a DD-214. Appellant’s affidavit asserts that four employers declined to consider him for employment in the period of August-October 2000, approximately a year after his trial was completed, and that two employers declined to consider him for employment for that reason in 2007. Appellant has not provided documentation from potential employers regarding their employment practices, nor has he otherwise demonstrated a valid reason for failing to do so. Compare United States v. Jones, 61 M.J. 80, 84-85 (C.A.A.F. 2005) (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.) In that context, we conclude that the assumed error was harmless beyond a reasonable doubt and note that Appellant has failed to present any substantiated evidence to the contrary.

Allende, slip op. at 10.

In light of Allende, it seems likely that Code 46 will seek reconsideration of Bush or possibly even seek JAG certification to avoid the possibility that upon reconsideration NMCCA might clean up the parts of its opinion that rely heavily on facts that NMCCA said were unnecessary to its ruling, thereby insulating the opinion from further review. If the case does make it up to CAAF, then CAAF will have the opportunity to clarify whether failure to provide extrinsic evidence of interference with employment opportunities -- or, alternatively, to demonstrate good cause for failing to make such a showing -- is always fatal to a claim of interference with employment opportunities.


Anonymous said...

So, apparently the government needs to chase down some assistant manager at the Dairy Queen who didn't hire the Appellant 3 ears ago because he didn't have a piece of paper that confirmed a BCD. Now all Appellants need do is give specificity as to which Spencer's Gifts didn't hire them and a time frame. Does NMCCA think that any of these employers would remember NOT hiring someone 3 years ago? Well, I don't think this opinion will be around much longer. But congrats to Senior Judge Geiser on his second published opinion! It's precidential weight will be measured in months. I assume the cases that get over turned or modified are not ones you cite to in a resume...

Anonymous said...

Caaflog, you are brilliant! No kidding. You notice subtle and nuanced analytical irregularities where I would have missed them. This decision seemed like a straight line on my first reading; but after your explanation, I see some of the wiggles. That said, absent CAAF's recent holding on this employment issue, the bottom-line of this decision still could have survived.

But I am not pursuaded by the "its inconvenient" whine by the Government in regard to employment affidavits. The Government's job is easy - they just need to reach the highest level of management available in regard to hiring practices - they don't need to call the local Dairy Queen, they can get something from HQ. Same with COSTCO. Lets face it, in this case the Government just got caught being LAZY. They did nothing. With a touch of arrogance, they blew-off Bush's affidavit and got burned for it.
It was bad appellate practice, so put the violins away.

Anonymous said...

The highest levels of management? A declination of employment at a local Costco will not reach the highest level of management...the manager of the local Costco won't even be the same persone 6 months later and if they are they won't remember NOT hiring someone. It's close to proving a negative. All the Appellant need say is I would have been hired at a restaurant 3 years ago. It is impossible to disprove that.

Anonymous said...

Nonsense. You are creating a straw-man. Or should I say that you are creating a giant steel-man. Regular hiring practices at a store - which can be attested to at higher levels - would meet the threshold to defeat an otherwise unrebutted claim by an appellant. Stop trying to make lame excuses for outright lazy appellate practice: "Waaahhh. I have to actually contact real human beings. The phone is such complicated technology. I can't just stay in my office and do Lexis searches. Waaaah."

CAAFlog said...

But the Bush/Allende distinction may control who has to pick up the phone and call the non-hiring company: the appellate defense counsel or the appellate government counsel. While some have noted that the burden may be difficult for the defense to carry, remember that Allende did suggest the possibility of an explanation for why no information from the company was provided. So under Allende, the wise appellate defense counsel would call the company with someone else on the line who could then provide a declaration saying that the company was contacted and it confirmed that it wouldn't hire a servicemember without a DD 214 or that the company said to pound sand, thereby establishing lack of an ability to obtain corroborating information. (Of course, if the company says that it doesn't care about a DD 214, it's time to have a talk with the client.)

One more observation: there are companies who care about the applicant having a DD 214 from his or her last enlistment but who aren't particular about the characterization of discharge. They just want to know that if they sink a lot of money into training the applicant, he or she won't then be deployed, taking all of that training with him or her.

Christopher Mathews said...

I think it safe to assume that had Allende been released a day or two earlier, the Bush decision would have been substantially different. Even so, the main thrust of the NMCCA's opinion is hard to dispute: six and a half years from CA action to docketing with the CCA is unacceptable.

The CCAs can, I think, make this point painfully clear to the government if they choose.

The Air Force court has long enforced the 20-day rule for forwarding Article 62 appeals by dismissing them when tardy. See United States v. Harding; see also United States v. Combs, 38 M.J. 741 (A.F.C.M.R. 1993). It wouldn't greatly bother me to see a similar solution imposed in cases like this: give the government a respectably-generous deadline, and then enforce it.

dreadnaught said...

Was it necessary to call out the review officer by name in the opinion? Capt Steinberg was not in the Marine Corps when this case was tried. If the court is going to use names use the SJA.

Anonymous said...

Good point on the name...seems NMCCA may be up to their old ways of vitriole. Comming from the author of this opinion it seems a bit weird. Maybe CAAF will have the opportunity to call out Senior Judge Geiser by name again.