AFCCA published opinion on post-trial (Moreno) delay

14 September 2020, the court issued a published opinion in United States v. Livak, it’s a Moreno case analyzed with the new rules in mind.

Appellant claims that his due process rights were violated when his case was not docketed with this court within 30 days of the convening authority’s action as required by United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006). Finding no error that resulted in material prejudice to Appellant’s substantial rights, we affirm the findings and sentence.” The court reviews the case considering the new post-trial rules for events at the trial stage. The takeaway point are,

• Under the new rules there is no CA action, so Moreno “no longer helps.”

• Under the new procedures, action by the convening authority is no longer required. See R.C.M. 1109(d); R.C.M. 1110(c), (e).

• An accused’s timeline for submitting clemency matters begins when the sentence is announced, not when the ROT is served on him or her. See R.C.M. 1106.

• Additionally, after the convening authority makes a decision whether to take action, the new post-2019 procedures establish additional processing that the Government must complete before an appellant’s case can be docketed with this court. Those steps include the military judge entering the judgment of the court, and the court reporter preparing, certifying, and attaching additional matters to the record of trial for appellate review. See R.C.M. 1111(a) and 1112(c), (f).

• Consequently, the convening authority’s decision on action occurs before the ROT is complete, and preparation of the record necessarily continues after that decision occurs. Depending on the length and complexity of the record involved, we can envision cases in which the court reporter is still transcribing the proceedings after the convening authority’s decision.

• As such, the prior 30-day period from action to docketing, which primarily involved transmitting an already-completed ROT to the Court of Criminal Appeals, now overlays substantive actions such as completing the preparation of the record.”

• The court concludes that 150 days between sentencing and docketing with the CCA is the proper deadline to “protect an appellant’s due process rights.”
• That “rule” established by the CCA now, the court conducts a traditional Moreno