U.S. v. Arriaga, 70 M.J. 51

First Principles: Constitutional Matters: Due Process

1. whether an appellant has been deprived of his due process right to a speedy appellate review is a question of law that an appellate court reviews de novo; to determine this, the court balances the four Barker/Moreno factors: (1) the length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right to timely review and appeal; and (4) prejudice; no single factor is required, but a facially unreasonable length of delay triggers the full analysis
2. an accused has a constitutional due process right to a timely full and fair review of his findings and sentence
3. even in the absence of specific prejudice, a constitutional due process violation for post-trial delay still occurs if, 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; relief in such cases is provided unless an appellate court is convinced that the post-trial delay was harmless beyond a reasonable doubt; furthermore, the court may assume a due process violation and proceed straight to the harmless beyond a reasonable doubt analysis; finally, even in instances where post-trial delay was not harmless beyond a reasonable doubt, the court cannot provide relief where there is no reasonable, meaningful relief available

First Principles: Constitutional Matters: Right to a Speedy Trial

1. whether an appellant has been deprived of his due process right to a speedy appellate review is a question of law that an appellate court reviews de novo; to determine this, the court balances the four Barker/Moreno factors: (1) the length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right to timely review and appeal; and (4) prejudice; no single factor is required, but a facially unreasonable length of delay triggers the full analysis
2. an accused has a constitutional due process right to a timely full and fair review of his findings and sentence
3. even in the absence of specific prejudice, a constitutional due process violation for post-trial delay still occurs if, 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; relief in such cases is provided unless an appellate court is convinced that the post-trial delay was harmless beyond a reasonable doubt; furthermore, the court may assume a due process violation and proceed straight to the harmless beyond a reasonable doubt analysis; finally, even in instances where post-trial delay was not harmless beyond a reasonable doubt, the court cannot provide relief where there is no reasonable, meaningful relief available

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. a military judge has a sua sponte duty to instruct the members on lesser included offenses reasonably raised by the evidence

Core Criminal Law Subjects: Crimes: Article 79 - Conviction of Lesser Included Offenses Pre-2019 offenses

1. Article 79, UCMJ, states that an accused may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein
2. a court applies the elements test to determine whether one offense is a lesser included offense of another; under the elements test, one compares the elements of each offense; if all of the elements of one offense are also elements of the charged offense, then the offense is a lesser included offense of the charged offense; the two offenses need not have identical statutory language; instead, the meaning of the offenses is ascertained by applying the normal principles of statutory construction
3. regardless of whether one looks strictly to the statutory elements or to the elements as charged, housebreaking is a lesser included offense of burglary; comparing the statutory elements, it is impossible to prove a burglary without also proving a housebreaking; furthermore, the offense as charged in this case clearly alleges the elements of both offenses; here, the “intent” element of burglary was charged as the intent to commit an offense under Article 120, UCMJ; that charging language also satisfies the “intent” element of housebreaking (intent to commit a criminal offense); while in another case it may be possible to prove a housebreaking offense by proving the intent to commit a criminal offense not designated in the third element of burglary, that is not the offense charged in this case; the offense as charged included all of the elements of housebreaking and all of those elements are also elements of burglary; housebreaking is therefore a lesser included offense of burglary
4. the fact that there may be an alternative means of satisfying an element in a lesser offense does not preclude it from being a lesser-included offense

Core Criminal Law Subjects: Crimes: Article 129 - Burglary Pre-2019 offenses

1. the elements of burglary are (1) that the accused unlawfully broke and entered the dwelling house of another, (2) that both the breaking and entering were done in the nighttime, and (3) that the breaking and entering were done with the intent to commit an offense punishable under Article 118 through 128, except Article 123a
2. regardless of whether one looks strictly to the statutory elements or to the elements as charged, housebreaking is a lesser included offense of burglary; comparing the statutory elements, it is impossible to prove a burglary without also proving a housebreaking; furthermore, the offense as charged in this case clearly alleges the elements of both offenses; here, the “intent” element of burglary was charged as the intent to commit an offense under Article 120, UCMJ; that charging language also satisfies the “intent” element of housebreaking (intent to commit a criminal offense); while in another case it may be possible to prove a housebreaking offense by proving the intent to commit a criminal offense not designated in the third element of burglary, that is not the offense charged in this case; the offense as charged included all of the elements of housebreaking and all of those elements are also elements of burglary; housebreaking is therefore a lesser included offense of burglary

Core Criminal Law Subjects: Crimes: Article 130 - Housebreaking Pre-2019 offenses

1. the elements of housebreaking are (1) that the accused unlawfully entered a certain building or structure of a certain other person, and (2) that the unlawful entry was made with the intent to commit a criminal offense therein
2. regardless of whether one looks strictly to the statutory elements or to the elements as charged, housebreaking is a lesser included offense of burglary; comparing the statutory elements, it is impossible to prove a burglary without also proving a housebreaking; furthermore, the offense as charged in this case clearly alleges the elements of both offenses; here, the “intent” element of burglary was charged as the intent to commit an offense under Article 120, UCMJ; that charging language also satisfies the “intent” element of housebreaking (intent to commit a criminal offense); while in another case it may be possible to prove a housebreaking offense by proving the intent to commit a criminal offense not designated in the third element of burglary, that is not the offense charged in this case; the offense as charged included all of the elements of housebreaking and all of those elements are also elements of burglary; housebreaking is therefore a lesser included offense of burglary

Trial Stages: Merits: Instructions › Lesser-included offenses

1. Article 79, UCMJ, states that an accused may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein
2. a court applies the elements test to determine whether one offense is a lesser included offense of another; under the elements test, one compares the elements of each offense; if all of the elements of one offense are also elements of the charged offense, then the offense is a lesser included offense of the charged offense; the two offenses need not have identical statutory language; instead, the meaning of the offenses is ascertained by applying the normal principles of statutory construction
3. regardless of whether one looks strictly to the statutory elements or to the elements as charged, housebreaking is a lesser included offense of burglary; comparing the statutory elements, it is impossible to prove a burglary without also proving a housebreaking; furthermore, the offense as charged in this case clearly alleges the elements of both offenses; here, the “intent” element of burglary was charged as the intent to commit an offense under Article 120, UCMJ; that charging language also satisfies the “intent” element of housebreaking (intent to commit a criminal offense); while in another case it may be possible to prove a housebreaking offense by proving the intent to commit a criminal offense not designated in the third element of burglary, that is not the offense charged in this case; the offense as charged included all of the elements of housebreaking and all of those elements are also elements of burglary; housebreaking is therefore a lesser included offense of burglary
4. the fact that there may be an alternative means of satisfying an element in a lesser offense does not preclude it from being a lesser-included offense
5. a military judge has a sua sponte duty to instruct the members on lesser included offenses reasonably raised by the evidence

Trial Stages: Appeals: Preservation of Error / Plain Error

1. where there is no objection to an instruction at trial, an appellate court reviews it for plain error
2. plain error occurs when (1) there is error, (2) the error is plain or obvious, and (3) the error results in material prejudice

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. whether an offense is a lesser included offense is a question of law that an appellate court reviews de novo
2. where there is no objection to an instruction at trial, an appellate court reviews it for plain error
3. plain error occurs when (1) there is error, (2) the error is plain or obvious, and (3) the error results in material prejudice
4. a court applies the elements test to determine whether one offense is a lesser included offense of another; under the elements test, one compares the elements of each offense; if all of the elements of one offense are also elements of the charged offense, then the offense is a lesser included offense of the charged offense; the two offenses need not have identical statutory language; instead, the meaning of the offenses is ascertained by applying the normal principles of statutory construction

Miscellaneous Matters: Speedy Trial: Post-Trial

1. whether an appellant has been deprived of his due process right to a speedy appellate review is a question of law that an appellate court reviews de novo; to determine this, the court balances the four Barker/Moreno factors: (1) the length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right to timely review and appeal; and (4) prejudice; no single factor is required, but a facially unreasonable length of delay triggers the full analysis
2. an accused has a constitutional due process right to a timely full and fair review of his findings and sentence
3. a presumption of unreasonable delay triggers the Barker four-factor analysis where the action of the convening authority is not taken within 120 days of the completion of trial; the government has the opportunity to rebut the presumption in the second Barker/Moreno factor, reasons for the delay, with legitimate reasons for the delay
4. even in the absence of specific prejudice, a constitutional due process violation for post-trial delay still occurs if, 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; relief in such cases is provided unless an appellate court is convinced that the post-trial delay was harmless beyond a reasonable doubt; furthermore, the court may assume a due process violation and proceed straight to the harmless beyond a reasonable doubt analysis; finally, even in instances where post-trial delay was not harmless beyond a reasonable doubt, the court cannot provide relief where there is no reasonable, meaningful relief available
5. to trigger a full analysis under the Barker/Moreno factors, the post-trial delay must first be facially unreasonable; a delay of 120 days or more between the completion of trial and the convening authority’s action is presumed to be facially unreasonable
6. in this case, the 243-day period from the conclusion of trial to the convening authority’s action was presumptively unreasonable on its face and therefore triggered the full Barker/Moreno analysis
7. for the period of assessing appellate delay from the end of trial until the convening authority’s action, the clock starts to run the day that the trial is concluded and stops when the convening authority completes his action
8. personnel and administrative issues are not legitimate reasons justifying otherwise unreasonable post-trial delay
9. the obligation to ensure a timely review and action by the convening authority rests upon the government, and appellant is not required to complain in order to receive timely convening authority action
10. in the case of appellate delay, prejudice should be assessed in light of the interests of those convicted of crimes to an appeal of their convictions unencumbered by excessive delay; those interests are: (1) prevention of oppressive incarceration pending appeal; (2) minimization of anxiety and concern of those convicted awaiting the outcome of their appeals; and (3) limitation of the possibility that a convicted person’s grounds for appeal, and his or her defenses in case of reversal and retrial, might be impaired; with respect to an accused claiming prejudice from appellate delay because of his anxiety and concern, he or she must demonstrate a particularized anxiety or concern that is distinguishable from the normal anxiety experienced by prisoners awaiting an appellate decision; to prevail on a claim of unreasonable post-trial delay alleging oppressive incarceration, an accused must first succeed on a substantive claim on appeal
11. sentence appropriateness relief provides an appellant with substantive relief for the purposes of post-trial delay
12. in this case, balancing of the four Barker/Moreno factors leads to the conclusion that the government deprived appellant of his due process right to speedy review and appeal; the unreasonable length of the delay of 243 days between the end of trial and the convening authority’s action, the lack of legitimate reasons advanced by the government for the delay, and the specific prejudice of an additional 51 days spent in confinement by appellant beyond his adjusted maximum release as a result of oppressive incarceration all weigh against the government; appellant’s failure to assert his right to timely post-trial review weighs against him, but only slightly
13. a nonexclusive list of relief available to reviewing courts depending on the circumstances of individual cases includes: (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 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

Miscellaneous Matters: Multiplicity and Lesser Included Offenses: Lesser Included Offenses

1. Article 79, UCMJ, states that an accused may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein
2. a court applies the elements test to determine whether one offense is a lesser included offense of another; under the elements test, one compares the elements of each offense; if all of the elements of one offense are also elements of the charged offense, then the offense is a lesser included offense of the charged offense; the two offenses need not have identical statutory language; instead, the meaning of the offenses is ascertained by applying the normal principles of statutory construction
3. regardless of whether one looks strictly to the statutory elements or to the elements as charged, housebreaking is a lesser included offense of burglary; comparing the statutory elements, it is impossible to prove a burglary without also proving a housebreaking; furthermore, the offense as charged in this case clearly alleges the elements of both offenses; here, the “intent” element of burglary was charged as the intent to commit an offense under Article 120, UCMJ; that charging language also satisfies the “intent” element of housebreaking (intent to commit a criminal offense); while in another case it may be possible to prove a housebreaking offense by proving the intent to commit a criminal offense not designated in the third element of burglary, that is not the offense charged in this case; the offense as charged included all of the elements of housebreaking and all of those elements are also elements of burglary; housebreaking is therefore a lesser included offense of burglary
4. the fact that there may be an alternative means of satisfying an element in a lesser offense does not preclude it from being a lesser-included offense