United States v. Bourgette

DECISION UPON FURTHER REVIEW HODGSON, Chief Judge: In our initial review of the appellant’s trial we affirmed her plea of guilty to a conspiracy to commit aggravated assault. United States v. Bourgette, ACMS-27701, [905] 28 April 1988. However, we made clear our concern over the excessive delay between the trial date and the date the record was received by the Military Justice Division in the Office of The Judge Advocate General.1 The appellant essentially contended that this delay resulted in the denial of her right to a prompt commencement of appellate review. Since no specific prejudice was identified, and delay in appellate review is not grounds, in and of itself, for relief, her conviction was upheld. United States v. King, 18 M.J. 535 (A.F.C.M.R.1984); United States v. Koziej, 17 M.J. 1102 (A.F.C.M.R.1984); United States v. Milan, 16 M.J. 730 (A.F.C.M.R.1983); see generally United States v. Matias, 25 M.J. 356 (C.M.A.1987) (13 month delay in rendering decision after brief filed with Court of Military Review not a due process violation absent a specific showing of prejudice). On 10 August 1988, the appellant petitioned the Court of Military Appeals for a grant of review urging that she was denied due process of law under the Sixth Amendment by the inexcusable, excessive, and unexplained delay in the post-trial processing of her case. To support this claim she filed the following affidavit with the Court of Military Appeals: I, Yvonne Bourgette, swear the following is true and accurate to the best of my ability. While awaiting final action on my case I was attempting to find other employment. I had gone to three interviews with different employers and the outlook was promising. However, when they asked me for my DD Form 214, I had to tell them I didn’t have one yet. They informed me that they couldn’t risk hiring me only to have the Air Force recall me later. In short, when my discharge from the Air Force was final, I could re-apply with them for employment. During this time, I was three months pregnant and desperately in need of medical attention. I went to the nearest military installation but was informed I was no longer entitled to medical benefits. I then went to the welfare office in Marysville, California and applied for medical benefits under the Medi-Cal program, Aid for Dependent Children (AFDC) and the welfare program. In each case, my request was turned down. They told me I was being turned down due to my status in the Air Force. They said it was the responsibility of the Air Force to provide the medical attention I needed and there was nothing they could do for me until the Air Force reached a decision. I finally found a civilian doctor, Dr Joseph Coulter, who was willing to help me. He told me that the stress I was under was not only hurting me, but was unhealthy for my unborn child. On 30 September 1988, the Court of Military Appeals remanded to us the appellant’s record for consideration of the matters alleged in her affidavit. United States v. Bourgette, 27 M.J. 401 (C.M.A.1988). In response to this remand we specified, on 17 October, the following issues: WAS THE APPELLANT PREJUDICED WHEN SHE WAS INCORRECTLY INFORMED THAT SHE WAS NOT ENTITLED TO MILITARY MEDICAL BENEFITS WHILE ON APPELLATE LEAVE? ASSUMING THE EXISTENCE OF PREJUDICE, WHAT WAS ITS DURATION? I Before addressing the specified issues we think some discussion of the appellant’s claim that the excessive post-trial delay denied her employment opportunities is necessary. In United States v. Sutton, 15 M.J. 235 (C.M.A.1983) and United States v. Clevidence, 14 M.J. 17 (C.M.A.1982), the Court of Military Appeals set aside convictions where there were “excessive and de [906] plorable” delays by the supervisory authority in acting on the case.2 The court concluded that the appellant’s unspecified difficulty in obtaining civilian employment was sufficient prejudice to warrant dismissing the charges. However, this holding was not without disagreement. In his Clevidence dissent Judge Cook prophesied: The prejudice found — appellant’s alleged difficulty in obtaining “good” employment because of the possibility of being returned to active duty — is highly speculative, easy to assert and difficult, if not impossible, to disprove. No doubt we will see more of such assertions in future cases. Here the appellant makes a generalized assertion of difficulty in obtaining employment. In United States v. King, a panel of this court held that such a non-specific claim of prejudice mandated dismissal of the charges. The panel further stated that the inability of the government to rebut this generalized assertion of prejudice would not rescue a speedy review violation. In her dissent Judge Raichle suggested that a limited hearing might be appropriate so that the parties could make a record as to the possible prejudice occasioned by the post-trial delay. In her view this would eliminate the present “battle of affidavits” with the appellant making a “bald assertion of prejudice which the government finds impossible to rebut.” Judge Raichle’s approach is, of course, no help where the claimed prejudice is so general in nature that a limited hearing would be of no practical use. How can the government respond to a claim that the post-trial delay resulted in a lack of employment opportunity when the business or individual who refused to employ the appellant is unknown? An accused cannot be compelled to testify at an evidentiary hearing, so if that individual declines to identify who refused them employment, the government has no starting point in rebuttal. We think the position taken by this court in King should be reexamined. It is not unfair or illogical to require an appellant who claims prejudice in obtaining post-trial employment because of the delay in acting on the record to identify the organization or person who refused employment and the time frame in which it occurred. The failure of an appellant to provide such information would be considered strong evidence that the appellant was not prejudiced in obtaining post-trial employment. The appellant’s affidavit contains a generalized claim of prejudice in finding a job with no reference as to what businesses or individuals refused to hire her. Under these circumstances we conclude the appellant was not prejudiced in the job market by the post-trial delay in reviewing her record. We hold that in order for us to consider evidence of employment prejudice, an appellant must identify the organization or individual who denied employment and the time frame in which it occurred. That part of United States v. King which conflicts with this holding is overruled. II Turning now to the specified issues concerning the appellant’s claim that she was denied military medical benefits when “[she] was three months pregnant and desperately in need of medical attention.” Here also her affidavit is vague as to what military installation denied her prenatal treatment and when this occurred. She further averred that the State of California also refused her medical treatment because of “[her] status in the Air Force.” Based on documents filed with this court by the government3, the appellant was first seen by Doctor Joseph Coulter, a civilian physician, on 2 October 1987. It follows that the appellant was told she was not eligible for military medical treatment prior to this date. An individual on excess leave awaiting post-trial processing of a court-martial is still on active duty and is therefore entitled to full medical benefits. Article 76a, UCMJ, 10 U.S.C. § 876a, see Air Force Regulation 111-1, Military Justice Guide, Chapter 15, figure 15-1 (para. 4) (1 August [907] 1984). The appellant was advised of this on 31 July 1987 and given a copy of the letter containing this information. The government also submitted affidavits from the California State Department of Health Services averring that the military status of an applicant for Medi-Cal benefits and Aid to Families with Dependent Children (AFDC) is not, in and of itself, a factor in determining the applicant’s eligibility for benefits under either program. The appellant’s affidavit leaves the impression that she was denied military medical treatment while she was on excess leave and it was only through the humanitarianism of a civilian physician that she and her unborn child received the medical attention they desperately needed. The documentation before the court paints a different picture. The appellant was last seen by Doctor Coulter on 4 November 1987, and on 25 November she was in the prenatal care program at the Beale AFB hospital. At the same hospital, on 2 May 1988, she delivered, without complications, a healthy male infant. Appellate defense counsel argue that the lethargic post-trial processing of the appellant’s case resulted in her and her unborn child being denied critical medical care during a two month period. They contend this is sufficient prejudice to dismiss the charges. See United States v. Clevidence and United States v. Sutton. There is no doubt that the 143 day delay in the processing of the appellant’s trial was not satisfactorily explained. It further appears that during September and October 1987, she was not provided the military medical benefits to which she was entitled. Accordingly, the appellant was prejudiced to some degree, but neither her health nor that of her child was affected. To dismiss the charges under these circumstances is the legal equivilant of “burning the barn to kill the rats.” United States v. Clevidence, 14 M.J. at 21, (Judge Cook dissenting); see also United States v. Sowers, 24 M.J. 429 (C.M.A.1987) (APPEALS — SUMMARY DISPOSITIONS) (Judge Cox concurring in the result). The prejudice the appellant incurred in the post-trial processing of her case can be cured without invalidating the results of an error-free trial. We find appropriate only so much of the sentence as provides for a reduction to airman basic. United States v. Miramontes, 22 M.J. 882 (C.G.C.M.R. 1986). The findings of guilty are again AFFIRMED. Senior Judge FORAY; Judges, HOLTE, MICHALSKI and MURDOCK concur. Footnotes [1] The convening authority took 143 days to review and forward a 60 page transcript, and thereafter it apparently took 52 days in mail channels for the record to be sent from Pope AFB, North Carolina to Washington D.C. [2] In Sutton the delay was 321 days and in Clevidence it was 313 days. [3] The government’s MOTION TO SUBMIT DOCUMENTS is GRANTED.