U.S. v. Othuru - U.S. Court of Appeals for the Armed Forces

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United States v. Othuru, No. 06-0768/NAbehalf of Othuru. The Government filed its answer on November18, 2005. The lower court issued its decision in this case onJune 13, 2006 -- 1,298 days after Othuru was sentenced.DiscussionWe specified an issue to consider whether Othuru was denieddue process by the 1,298 days that elapsed between his trial andcompletion of appellate review by the Navy-Marine Corps court.We review whether Othuru was denied due process de novo usingthe methodology for reviewing issues of post-trial and appellatedelay set out in United States v. Moreno, 63 M.J. 129 (C.A.A.F.2006). We ask first whether the particular delay is faciallyunreasonable. Id. at 136. If we conclude that the delay isfacially unreasonable, we then examine the four factors setforth in Barker v. Wingo, 407 U.S. 514, 530 (1972): (1) thelength of the delay; (2) the reasons for the delay; (3) theappellant’s assertion of the right to timely review and appeal;and (4) prejudice. See United States v. Young, 64 M.J. 404,408-09 (C.A.A.F. 2007); Moreno, 63 M.J. at 135-36; United Statesv. Jones, 61 M.J. 80, 83 (C.A.A.F. 2005); Toohey v. UnitedStates, 60 M.J. 100, 102 (C.A.A.F. 2004).The delay from trial to completion of review at the Courtof Criminal Appeals was three years, six months, and twentydays. In our view, this delay is facially unreasonable and14
United States v. Othuru, No. 06-0768/NAtherefore sufficient to trigger an analysis of the four Barkerfactors. This unreasonable delay would cause the first factor-- length of the delay -- to favor Othuru. As reason for thedelay, the Government has pointed to the length and complexityof the record, but acknowledges that there is no reason for thedelay at the appellate level in this case. Even assuming thatthis record may have been more difficult to prepare than others,we conclude that there is no good cause for the lengthy delayherein and that the second factor favors Othuru.Othuru did not complain about the delay in his case untilhe filed his initial brief at the Court of Criminal Appeals.Such an assertion is not timely, and the third factor weighsslightly against Othuru. See Moreno, 63 M.J. at 138. Finally,we discern no basis for a finding of prejudice in this case.Othuru has not prevailed on any other substantive issue and noprejudice is manifest on this record. This fourth and finalfactor weighs against Othuru. Balancing all these factors, weconclude that there is no denial of Othuru’s due process rightto a timely review and appeal.DecisionThe decision of the United States Navy-Marine Corps Courtof Criminal Appeals is affirmed.15
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U.S. v. Othuru - U.S. Court of Appeals for the Armed Forces

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