Seven Years Later: The Struggle with Moreno Continues

AuthorJennifer L. Venghaus
PositionJudge Advocate, U.S. Army
Volume 217 Fall 2013
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).
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),
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.
2010) [hereinafter DODIG REPORT].
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).

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