Seven Years Later: The Struggle with Moreno Continues

• Author: Jennifer L. Venghaus
• Position: Judge Advocate, U.S. Army
• Pages: 1-47

MILITARY LAW REVIEW

Volume 217 Fall 2013

SEVEN YEARS LATER: THE STRUGGLE WITH MORENO

CONTINUES

MAJOR JENNIFER L. VENGHAUS

Not only is untimely post-trial processing unfair to the soldier

concerned, but it also damages the confidence of both soldiers and the

public in the fairness of military justice, thereby directly undermining the

very purpose of military law.1

I. Introduction

In 1999, a military panel convicted Marine Corps Gunnery Sergeant

(GySgt) Brian Foster of rape, aggravated assault and wrongfully

communicating a threat. Sergeant Foster was sentenced to seventeen

years of confinement, forfeiture of all pay and allowances, reduction to

the grade of E-1, and a dishonorable discharge. In February 2009, the

Navy-Marine Corps Court of Criminal Appeals (NMCCA) found the

evidence of rape “legally and factually insufficient.” As a result, the

 Judge Advocate, U.S. Army. Presently assigned as Personnel Law Attorney, Office of

The Judge Advocate General, U.S. Army, Washington, D.C. LL.M., 2012, The Judge

Advocate General’s School, U.S. Army, Charlottesville, Virginia; J.D., 2003, University

of Richmond; B.A., 2000, Southwestern University. Previous assignments include Chief,

Criminal Law, 82d Airborne Division, Fort Bragg, North Carolina, 2009–2011;

Command Judge Advocate, 18th Engineer Brigade, Iraq and Germany, 2007–2009;

Command Judge Advocate, Joint Task Force–East, Mihail Kogalniceanu Airbase,

Romania, 2007; Operational Law Attorney, United States Army Europe, Heidelberg,

Germany, 2006–2007; Command Judge Advocate, 513th Military Intelligence Brigade,

Fort Gordon, Georgia, 2005–2006; Operational Law Attorney, Task Force 134, Multi-

National Forces–Iraq, Baghdad, Iraq, 2004–2005; Legal Assistance Attorney, Office of

the Staff Judge Advocate, Fort Gordon, Georgia, 2004. Previous publications include:

Tax Incentives: A Means of Encouraging Research and Development for Homeland

Security?, 37 U. RICH. L. REV. 1213 (2003). Member of the bars of Virginia, the U.S.

Court of Appeals for the Armed Forces, and the U.S. Supreme Court. This articles was

submitted in partial completion of the Master of Laws requirements of the 60th Judge

Advocate Officer Graduate Course.

1 United States v. Bauerbach, 55 M.J. 501, 506 (A. Ct. Crim. App. 2001) (citing United

States v. Williams, 42 M.J. 791, 794 (N-M Ct. Crim. App. May 22, 1995).

2 MILITARY LAW REVIEW [Vol. 217

court dismissed the charge of rape and set aside the remaining findings

and sentence.2

United States v. Foster represents a perfect example of the

importance of speedy post-trial processing. In Foster, over nine years

had elapsed between the completion of trial and his appeal to the

NMCCA. As a result, Sergeant Foster served almost ten years in

confinement for an offense that the court ultimately dismissed.3 Now

that he has secured his release from confinement, he “must salvage his

personal life and relationship with his sons, and fight to save his career,

regain his NCO rank and recoup thousands in back pay and benefits he

believes are owed to him.”4

In October 2009, in response to the “travesty of justice”5 in United

States v. Foster, Congress established an independent panel to “review

the judge advocate requirements of the Department of the Navy for the

military justice mission”6 and ordered the Department of Defense

Inspector General “to review the systems, policies, and procedures

currently in use to ensure timely and legally sufficient post-trial reviews

of courts-martial within the Department of the Navy.”7 The Department

of Defense Inspector General put together a team of experts who

examined the post-trial process in the Navy and Marine Corps and

concluded “that Navy JAGs have not fully accomplished their post-trial

military justice mission as required in statute and regulation.”8

2 United States v. Foster, No. 200101955, 2009 WL 382002 (N-M. Ct. Crim. App. Feb.

17, 2009).

3 Sergeant Foster’s sentence was adjudged on December 3, 1999, and the Navy-Marine

Corps Court of Criminal Appeals opinion was issued on February 17, 2009. Id.

4 Gidget Fuentes, Innocent Marine Freed After 9 years in Prison, MARINE CORPS TIMES,

(Apr. 20, 2009), http://www.marinecorpstimes.com/news/2009/04/marine_foster_0420

09w/.

5 Hearing to Receive Testimony on Providing Legal Services by Members of the Judge

Advocate General’s Corps Before the S. Subcomm. on Personnel, Comm. On Armed

Services, 112th Cong. 2 (2011) [hereinafter Hearing].

6 National Defense Authorization Act for Fiscal Year 2010, Pub. L. No. 111-84, § 506,

123 Stat. 2190, 2278–79 (2009).

7 Hearing, supra note 5, at 3.

8 U.S. DEP’T OF DEF. INSPECTOR GEN., EVALUATION OF POST-TRIAL REVIEWS OF COURTS-

MARTIAL WITHIN THE DEPARTMENT OF THE NAVY, REP. NO. IPO2010E003 (10 Dec.

2010) [hereinafter DODIG REPORT].

2013] UNITED STATES V. MORENO 3

The case of United States v. Foster resulted in scrutiny of post-trial

processing within the Department of the Navy,9 but the case also served

to prompt all military services to examine their post-trial processes and

reduce unnecessary delays in order to ensure post-trial due process for

servicemembers. According to the Court of Appeals for the Armed

Forces (CAAF), “[d]ue process entitles convicted servicemembers to a

timely review and appeal of court-martial convictions.”10 While the

nearly ten years of post-trial delay in Foster clearly represents a violation

of Sergeant Foster’s post-trial due process rights, what constitutes

“timely” post-trial processing? Pursuant to United States v. Moreno, a

presumption of unreasonable delay exists when the convening authority

does not take action within 120 days of the completion of trial.11 This

presumption of unreasonable delay triggers a four-part Barker analysis,

balancing: “(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.”12 To rebut the presumption of unreasonable delay, the

government must show “justifiable, case-specific delays supported by the

circumstances of [the] case and not delays based upon administrative

matters, manpower constraints or the press of other cases.”13

The CAAF has made it clear they believe delay in post-trial

processing poses a problem.14 Although not as extreme as the post-trial

delay in United States v. Foster, as depicted in Figure 1, post-trial

processing in the Army has gradually increased over the years, and the

average processing time from completion of trial to convening authority

action has exceeded 120 days since 2000.15

9 Id.; Hearing, supra note 5, at 2–3; Memorandum from The Judge Advocate General,

U.S. Navy, to Distribution, subject: Report on the Status of Military Justice in the Navy

(4 Aug. 2009).

10 United States v. Moreno, 63 M.J. 129, 132 (C.A.A.F. 2006) (citing Toohey v. United

States, 60 M.J. 100, 101 (C.A.A.F. 2004)).

11 Id. at 142.

12 Id. at 135 (citing Barker v. Wingo, 407 U.S. 514, 530 (1972)).

13 Id. at 143.

14 Id. at 142 (noting that “Moreno’s case is not an isolated case that involves excessive

post-trial delay issues”).

15 E-mail from Homan Barzmehri, Mgmt. & Program Analyst, Office of the Clerk of

Court, Army Court of Criminal Appeals, to author (Dec. 1, 2011, 3:49 P.M. EST)

[hereinafter Barzmehri e-mail] (on file with author).