UNITED STATES, Appellee 

v. 

Marco A. BUSH, Private First Class 

U.S. Marine Corps, Appellant 

No. 09-0119 

Crim. App. No. 200700137 

United States Court of Appeals for the Armed Forces 

Argued April 28, 2009 

Decided August 17, 2009 

ERDMANN, J., delivered the opinion of the court, in which 

EFFRON, C.J., and BAKER, J., joined. RYAN, J., filed a separate 

opinion concurring in the judgment, in which STUCKY, J., joined. 

Counsel 

For Appellant: Lieutenant Commander Thomas P. Belsky, JAGC, USN 

(argued); Major Christian J. Broadston, USMC, and Major Anthony 

W. Burgos, USMC (on brief). 

For Appellee: Lieutenant Commander Paul D. Bunge, JAGC, USN 

(argued); Brian K. Keller, Esq. (on brief). 

Military Judges: F. A. Delzompo and J. F. Havranek 

This opinion is subject to revision before final publication. 
United States v. Bush, 09-0119/MC 

2

Judge ERDMANN delivered the opinion of the court. 

 Before the United States Navy-Marine Corps Court of 

Criminal Appeals, Private Marco A. Bush asserted that his due 

process right to a speedy post-trial review was violated by a 

delay of more than seven years from the court-martial to 

docketing at the Court of Criminal Appeals. Bush claimed that 

he suffered specific prejudice in that he was denied an 

identified job because he did not have his discharge papers (DD 

Form 214). In support of his claim, Bush provided his unsworn 

declaration without any corroborating evidence. 

Citing our opinion in United States v. Allende, 66 M.J. 142 

(C.A.A.F. 2008), the lower court determined en banc that Bush 

failed to adequately substantiate his claim of prejudice. 

United States v. Bush (Bush CCA II), 67 M.J. 508, 510-12 (N-M. 

Ct. Crim. App. 2008). Nevertheless, concluding that “the delay 

in the post-trial review of this case ‘is so egregious that 

tolerating it would adversely affect the public’s perception of 

the fairness and integrity of the military justice system,’” the 

lower court held that Bush’s due process right to speedy posttrial review had been violated. Id. at 512 (quoting United 

States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006)). The Court 

of Criminal Appeals went on to conclude that the Government had 

met its burden to show that the post-trial error was harmless 

beyond a reasonable doubt and denied relief. Id. at 513. In 
United States v. Bush, 09-0119/MC 

3

doing so, the lower court stated that “appellant’s failure to 

independently corroborate his assertion of specific employment 

prejudice or alternatively to provide facts explaining his 

inability to provide such independent corroboration weighs 

heavily on our decision.” Id. We granted review to determine 

whether Allende conflicts with this court’s long-standing 

decision in United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997), 

and also to determine whether the Court of Criminal Appeals 

wrongfully imposed upon Bush the burden to establish that the 

constitutional error was harmful.1

We see no conflict between Allende and Ginn, as applied by 

the Court of Criminal Appeals in this case or otherwise. We 

further conclude that to the extent that the Court of Criminal 

Appeals erred in placing a burden of production on Bush, that 

error was harmless beyond a reasonable doubt. We therefore 

affirm the decision of the Court of Criminal Appeals. 

 

1

 We granted review of two issues: 

I. WHETHER THE COURT OF CRIMINAL APPEALS’ INTERPRETATION 

AND APPLICATION OF THIS COURT’S DECISION IN UNITED STATES 

v. ALLENDE, 66 M.J. 142 (C.A.A.F. 2008) PLACES IT AT ODDS 

WITH THIS COURT’S DECISION IN UNITED STATES v. GINN, 47 

M.J. 236 (C.A.A.F. 1997). 

II. WHETHER THE COURT OF CRIMINAL APPEALS MISINTERPRETED 

ALLENDE, CREATING THE PRACTICAL RESULT OF SHIFTING TO AN 

APPELLANT THE BURDEN OF PROVING THAT A CONSTITUTIONAL ERROR 

WAS HARMFUL. 

67 M.J. 268 (C.A.A.F. 2009). 
United States v. Bush, 09-0119/MC 

4

PROCEDURAL BACKGROUND 

Consistent with his pleas, Bush was convicted of numerous 

offenses under the Uniform Code of Military Justice (UCMJ).2 He 

was sentenced to a dishonorable discharge, confinement for six 

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

pay grade E-1. His sentence was adjudged by a military judge 

sitting alone as a general court-martial on January 5, 2000. 

The convening authority took action on November 16, 2000. 

The case was docketed with the United States Navy-Marine 

Corps Court of Criminal Appeals on February 13, 2007 -- over six 

years later. On July 25, 2007, the Court of Criminal Appeals 

determined that the convening authority’s action was ambiguous 

and ordered that the case be returned to the Judge Advocate 

General of the Navy for submission to an appropriate convening 

authority for proper post-trial processing in compliance with 

Rules for Court-Martial 1105-1107. The case was then to be 

returned to the Court of Criminal Appeals for completion of its 

review under Article 66, UCMJ, 10 U.S.C. § 866 (2000). 

 

2

 Bush entered guilty pleas and was convicted of one 

specification of attempting to escape from custody, one 

specification of failure to obey a lawful order, one 

specification of fleeing apprehension, one specification of 

resisting apprehension, two specifications of reckless driving, 

two specifications of assault with a dangerous weapon, and one 

specification of striking a superior noncommissioned officer, in 

violation of Articles 80, 92, 95, 111, and 128, UCMJ, 10 U.S.C. 

§§ 880, 892, 895, 911, 928 (2000). 
United States v. Bush, 09-0119/MC 

5

The convening authority took action on November 27, 2007, 

approving the sentence as adjudged. Pursuant to a pretrial 

agreement, the convening authority suspended confinement in 

excess of twenty-four months for a period of six months from the 

date of his action.3

 He also deferred adjudged and automatic 

forfeitures in the amount of $500.00 pay per month until the 

date of action. Adjudged forfeitures and automatic forfeitures 

in the amount of $500.00 pay per month were waived for six 

months for the benefit of Bush’s dependent. The case was 

returned to the Court of Criminal Appeals, which considered 

Bush’s sole assignment of error -- unreasonable post-trial 

processing delay. 

The Court of Criminal Appeals issued its first opinion in 

this case on March 11, 2008. United States v. Bush (Bush CCA 

I), 66 M.J. 541 (N-M. Ct. Crim. App. 2008). Using the fourfactor analysis for resolving post-trial delay claims, the lower 

court concluded that Bush’s due process right to speedy posttrial review was violated. Id. at 542-444

; see United States v. 

Moreno, 63 M.J. 129, 135-41 (C.A.A.F. 2006). 

 

3

 The convening authority’s initial action on November 16, 2000, 

also complied with the pretrial agreement. There is no 

allegation, nor any indication from the record, that the posttrial delay resulted in any period of wrongful incarceration. 

 

4

 The lower court applied the factors identified in Barker v. 

Wingo, 407 U.S. 514 (1972), to assess: (1) the length of the 

delay; (2) the reasons for the delay; (3) the Appellant’s 
United States v. Bush, 09-0119/MC 

6

In reaching this conclusion, the Court of Criminal Appeals 

determined: (1) the length of the delay -– “over seven years to 

review a 143-page guilty plea” -- was facially unreasonable; (2) 

the record was “apparently lost in the mail for over six years,” 

so the reason for the delay weighed heavily in Bush’s favor; (3) 

Bush’s unrebutted, unsworn declaration asserted that he 

repeatedly contacted his command and the Navy-Marine Corps 

Appellate Leave Activity inquiring about his case; and (4) Bush 

established specific prejudice by showing through a 

preponderance of the evidence that he was denied employment 

because he did not have his DD Form 214. Bush CCA I, 66 M.J. at 

542-44. With respect to specific prejudice, the lower court 

reasoned: 

[Bush’s] declaration asserts he was denied employment 

by the Costco store in Huntsville, Alabama, three to 

four years after his trial, specifically because he 

lacked his final discharge papers (DD Form 214). . . . 

In this instance, the appellant identified a specific 

store in a specific town during a specific timeframe. 

He specifically asserts the reason he was denied 

employment was directly tied to dilatory post-trial 

processing of his court-martial. Finally, he asserts 

that, by virtue of his prior employment in the same 

position with a Costco store in California, he was 

fully qualified to perform the job. We find this was 

“adequate detail” to permit the Government to inquire 

further in order to verify or dispute the appellant’s 

assertions. . . . As the Government offers no 

evidence to refute the appellant’s claims, we find 

 

assertion of the right to timely review and appeal; and (4) 

prejudice. Bush CCA I, 66 M.J. at 542-44 (citing United States 

v. Jones, 61 M.J. 80, 83 (C.A.A.F. 2005)). 
United States v. Bush, 09-0119/MC 

7

that the appellant has sustained his burden by a 

preponderance of the evidence that he has suffered 

prejudice due to post-trial delay. 

Id. at 543 (citation and footnote omitted). 

 The Court of Criminal Appeals held that under the totality 

of the circumstances, it could not conclude that the error was 

harmless beyond a reasonable doubt. Id. at 544. As relief, the 

court affirmed only so much of the sentence as provided for a 

bad-conduct discharge. Id. 

 On March 12, 2008, the day after the Court of Criminal 

Appeals decided Bush CCA I, this court issued its opinion in 

Allende, 66 M.J. 142. Allende addressed a claimed denial of due 

process in a case that involved a seven-year delay between 

sentencing and resolution of Article 66, UCMJ, appellate review. 

Id. at 145. Allende claimed that he suffered prejudice on the 

grounds that a number of potential civilian employers were 

unwilling to consider him because he could not provide them with 

a DD Form 214. Id. Similar to this case, Allende submitted 

nothing more than his own declaration in support of his claim. 

Id. In Allende, we assumed a due process violation and 

proceeded directly to the question of whether the error was 

harmless beyond a reasonable doubt. Id. We recognized the fact 

that the appellant did not provide documentation from potential 

employers regarding their employment practices and did not 

demonstrate a valid reason for failing to do so. Id. We 
United States v. Bush, 09-0119/MC 

8

concluded that in that context, the assumed error was harmless 

beyond a reasonable doubt and we noted that the appellant failed 

to present substantiated evidence to the contrary. Id. 

 In light of this court’s opinion in Allende, the Court of 

Criminal Appeals, sitting en banc, reconsidered its decision in 

Bush CCA I. In a decision issued on August 19, 2008, the lower 

court maintained that Bush “provided an adequately detailed 

declaration articulating prejudice to his employment 

opportunities.” Bush CCA II, 67 M.J. at 512. Citing Allende, 

however, the lower court concluded that Bush “has not met his 

additional burden to provide corroborating evidence or an 

explanation of why such evidence could not be obtained. 

Consequently, this fourth factor of prejudice weighs in favor of 

the Government.” Id. Quoting our decision in Toohey, 63 M.J. 

at 362, the lower court went on to conclude that “even in the 

absence of specific prejudice to the appellant, the delay in the 

post-trial review of this case ‘is so egregious that tolerating 

it would adversely affect the public’s perception of the 

fairness and integrity of the military justice system.’” Bush 

CCA II, 67 M.J. at 512. The lower court consequently held that 

Bush’s due process right to speedy post-trial review was 

violated. Id. The lower court went on to conclude that the 

Government had met its burden to show that the error was 
United States v. Bush, 09-0119/MC 

9

harmless beyond a reasonable doubt. Id. at 513. In doing so, 

the Court of Criminal Appeals stated: 

The appellant’s failure to independently corroborate 

his assertion of specific employment prejudice or 

alternatively to provide facts explaining his 

inability to provide such independent corroboration 

weighs heavily in our decision. The appellant does 

not assert and our review of the record did not reveal 

evidence that the appellant has suffered ongoing 

prejudice from oppressive incarceration or undue 

anxiety. We conclude, therefore, that the Government 

has met its burden to show that the post-trial error 

was harmless beyond a reasonable doubt. 

Id. (footnote omitted). 

DISCUSSION 

1. Requiring an appellant to provide independent 

evidence to substantiate a claim that he was impaired 

in his ability to obtain employment as a result of 

post-trial delay does not conflict with Ginn. 

 Bush contends that because the Court of Criminal Appeals 

specifically found that his declaration presented “‘legally 

competent evidence’ as well as ‘state[d] a claim of legal error 

and provide[d] adequate detail to permit the Government to 

validate or dispute his claims[,]’ . . . under Ginn, such 

evidence would have permitted the court to grant relief based on 

the affidavit.” Bush further contends that by relying on 

Allende to find the evidence insufficient and to require 

independent corroboration of employment prejudice, the Court of 

Criminal Appeals “effectively modified Ginn, at least in the 

context of post-trial delay cases.” In response, the Government 
United States v. Bush, 09-0119/MC 

10

argues that the Ginn framework is unworkable as applied to posttrial claims of employment prejudice. The Government contends 

that it does not have a method to obtain witness testimony or 

documentary evidence at the appellate level where it has no 

subpoena power and that remand to a United States v. DuBay, 17 

C.M.A. 147, 37 C.M.R. 411 (1967), hearing is essential to 

provide it with access to evidence. 

To establish prejudice under the fourth Barker factor on 

the grounds that post-trial delay impaired an appellant’s 

ability to secure employment, an appellant must do something 

more than provide his own affidavit asserting that a specific 

employer declined to hire him because he lacked a DD Form 214. 

In Bush CCA II, the Court of Criminal Appeals relied on Allende

for the proposition that an appellant must provide corroborating 

evidence to support his claim of employment prejudice. 67 M.J. 

at 512. While the lower court correctly recognized the 

requirement, we note that it has been a part of our case law 

long before Allende. 

Even before we adopted the Barker factors for analyzing 

allegations of post-trial delay due process violations, we 

rejected claims of employment prejudice in the absence of 

independent supporting evidence. In United States v. Jenkins, 

38 M.J. 287, 289 (C.M.A. 1993), the appellant claimed that he 

was interviewed by a specific company but could not be hired 
United States v. Bush, 09-0119/MC 

11

because he could not establish his Navy rating as an electronics 

technician without his DD Form 214. This court rejected that 

claim noting that it was unsupported by any independent 

evidence. Id. As an appellant himself will generally lack 

personal knowledge as to why he did not get hired, the 

evidentiary deficiency in this circumstance is plain. See

Military Rule of Evidence (M.R.E.) 602 (“A witness may not 

testify to a matter unless evidence is introduced sufficient to 

support a finding that the witness has personal knowledge of the 

matter.”); see also United States v. Gosser, 64 M.J. 93, 98 

(C.A.A.F. 2006) (criticizing the appellant’s prejudice arguments 

for failing to provide any substantive evidence “from persons 

with direct knowledge of the pertinent facts”). 

In most cases, the appropriate source of information 

pertaining to the hiring decisions of a potential employer will 

be a representative of the potential employer itself. Such was 

the case in Jones, 61 M.J. at 84-85, where the appellant 

submitted the affidavits of three company officials stating that 

the appellant would have been considered for a position at the 

company if he had his DD Form 214. In that context, this court 

determined that the appellant established prejudice to 

employment opportunities as a result of post-trial delay. Id.

at 85. 
United States v. Bush, 09-0119/MC 

12

Contrary to Bush’s contentions, we see no conflict between 

our cases requiring that an appellant support his assertions of 

employment prejudice with independent evidence and Ginn. As a 

general matter, the now familiar principles of Ginn provide a 

workable framework for analyzing when post-trial issues framed 

by post-trial affidavits can be resolved without ordering a 

factfinding hearing under DuBay, 17 C.M.A. 147, 37 C.M.R. 411.5 

 

5

 Ginn sets forth a number of factors under which a post-trial 

evidentiary hearing would not be required. 47 M.J. at 248. As 

we have previously stated, “The linchpin of the Ginn framework 

is the recognition that a Court of Criminal Appeals’ factfinding 

authority under Article 66(c) does not extend to deciding 

disputed question of fact pertaining to a post-trial claim, 

solely or in part on the basis of conflicting affidavits.” 

United States v. Fagan, 59 M.J. 238, 242 (C.A.A.F. 2004). 

However, “a post-trial evidentiary hearing is not required in 

every case simply because an affidavit is submitted by an 

appellant.” Id. at 241. The six factors articulated in Ginn

are as follows: 

First, if the facts alleged in the affidavit allege an 

error that would not result in relief even if any 

factual dispute were resolved in appellant’s favor, 

the claim may be rejected on that basis; 

Second, if the affidavit does not set forth specific 

facts but consists instead of speculative or 

conclusory observations, the claim may be rejected on 

that basis; 

 

Third, if the affidavit is factually adequate on its 

face to state a claim of legal error and the 

Government either does not contest the relevant facts 

or offers an affidavit that expressly agrees with 

those facts, the court can proceed to decide the legal 

issue on the basis of those uncontroverted facts; 

 

Fourth, if the affidavit is factually adequate on its 

face but the appellate filings and the record as a 
United States v. Bush, 09-0119/MC 

13

See Ginn, 47 M.J. at 248. However, if substantive law places a 

burden of proof or persuasion on either party with respect to 

issues raised post-trial, Ginn and its progeny do not relieve 

that party of such a burden. See, e.g., United States v. Pena, 

64 M.J. 259, 266-67 (C.A.A.F. 2007) (finding the appellant’s 

declaration insufficient to support the post-trial claim that 

his participation in the Mandatory Supervised Release program 

produced an impermissible increase in the adjudged punishment). 

Nor does Ginn alter the fundamental requirement that a witness’s 

testimony be based upon personal knowledge. See M.R.E. 602. 

In the context of Bush’s claim of employment prejudice 

under the fourth Barker factor, he failed to provide independent 

evidence to support his claim that lack of a DD Form 214 

impaired his ability to secure employment and did not 

demonstrate a valid reason for not doing so. Consequently, the 

 

whole “compellingly demonstrate” the improbability of 

those facts, the court may discount those factual 

assertions and decide the legal issue; 

 

Fifth, when an appellate claim . . . contradicts a 

matter that is within the record of a guilty plea, an 

appellate court may decide the issue on the basis of 

the appellate file and record . . . unless the 

appellant sets forth facts that would rationally 

explain why he would have made such statements at 

trial but not upon appeal; 

 

Sixth, the Court of Criminal Appeals is required to 

order a factfinding hearing only when the above-stated 

circumstances are not met. 

47 M.J. at 248. 
United States v. Bush, 09-0119/MC 

14

fourth Barker factor is resolved against Bush before the 

question even arises as to whether, under Ginn, factual issues 

raised in his declaration could be resolved without a DuBay

hearing.6 See Jones, 61 M.J. at 85 & n.25. As such, we see no 

conflict. 

2. The post-trial delay due process violation was

harmless beyond a reasonable doubt. 

Bush contends that once the Court of Criminal Appeals found 

a due process violation in the absence of Barker prejudice, it 

erred in finding that the due process violation was harmless 

beyond a reasonable doubt. Bush argues that the lower court 

improperly interpreted Allende to effectively shift the burden 

to him to establish that the due process violation was not 

harmless beyond a reasonable doubt. The Government responds 

that the lower court reached the right result but for the wrong 

reasons, arguing that the harmless beyond a reasonable doubt 

standard does not apply unless the appellant establishes 

constitutionally recognized prejudice -- which Bush did not do 

in this case. The Government argues that because any error was 

not constitutional, the burden of showing prejudice was always 

upon Bush. 

 

6

 That is not to say, however, that appellate courts will never 

utilize the Ginn framework when considering claims of employment 

prejudice from post-trial delay. In Jones, for example, citing 

Ginn, 47 M.J. at 248, this court accepted the content of the 

unrebutted declarations from the potential employers and applied 

the law to the unrebutted facts. 61 M.J. at 85 & n.25. 
United States v. Bush, 09-0119/MC 

15

Initially, we disagree with any characterization of Allende

which suggests that the burden of proof or persuasion shifts to 

an appellant to demonstrate that a post-trial due process 

violation was not harmless beyond a reasonable doubt. Aside 

from structural errors which are not susceptible of analysis for 

harm, a constitutional error must be harmless beyond a 

reasonable doubt before an appellate court can affirm the 

resultant conviction or sentence. See United States v. 

Kreutzer, 61 M.J. 293, 298-99 (C.A.A.F. 2005); United States v. 

Hall, 58 M.J. 90, 94 (C.A.A.F. 2003) (citing United States v. 

Walker, 57 M.J. 174, 178 (C.A.A.F. 2002)). 

It is also clear that it is solely the Government’s burden 

to persuade the court that constitutional error is harmless 

beyond a reasonable doubt. See Chapman v. California, 386 U.S. 

18, 24 (1967); United States v. Cendejas, 62 M.J. 334, 337 

(C.A.A.F. 2006) (citing United States v. Simmons, 59 M.J. 485, 

489 (C.A.A.F. 2004)); Kreutzer, 61 M.J. at 300 (citing Chapman, 

386 U.S. at 24). We have not deviated from these black letter 

principles in developing our post-trial delay, due process 

jurisprudence. See United States v. Young, 64 M.J. 404, 409 

(C.A.A.F. 2007); United States v. Allison, 63 M.J. 365, 370 

(C.A.A.F. 2006); United States v. Harvey, 64 M.J. 13, 25 

(C.A.A.F. 2006). This court reviews de novo both the 

determination of a post-trial delay due process violation and 
United States v. Bush, 09-0119/MC 

16

the question of whether such a violation is harmless beyond a 

reasonable doubt. Allison, 63 M.J. at 370 (citing Cendejas, 62 

M.J. at 337). 

 As Bush notes in his brief, the determination of 

harmlessness for post-trial delay is different than that applied 

to constitutional trial errors. In the trial error arena, a 

determination of harmless beyond a reasonable doubt tests 

“‘whether, beyond a reasonable doubt, the error did not 

contribute to the defendant’s conviction or sentence.’” United 

States v. Wolford, 62 M.J. 418, 420 (C.A.A.F. 2006) (quoting 

Kreutzer, 61 M.J. at 298); United States v. Grooters, 39 M.J. 

269, 273 (C.M.A. 1994) (quoting Fahy v. Connecticut, 375 U.S. 

85, 86-87 (1963)). 

In contrast, post-trial delays do not necessarily impact 

directly the findings or sentence. Instead, we must review the 

record de novo to determine whether other prejudicial impact is 

present from the delay. See, e.g., United States v. Szymczyk, 

64 M.J. 179, 179 (C.A.A.F. 2006) (relief required for due 

process violation where the delay “subjected Appellant to sex 

offender registration requirements longer than otherwise would 

have been necessary”); United States v. Dearing, 63 M.J. 478, 

488 (C.A.A.F. 2006) (court unable to determine due process 

violation to be harmless beyond a reasonable doubt because, in 

part, Barker prejudice was found); Jones, 61 M.J. at 84-85 
United States v. Bush, 09-0119/MC 

17

(interference with post-military employment opportunities). 

Unless we conclude beyond a reasonable doubt that the delay 

generated no prejudicial impact, the Government will have failed 

to attain its burden. 

 Despite the different nature of the inquiry into harmless 

beyond a reasonable doubt where there is a post-trial delay due 

process violation, the burden remains upon the Government.7

 And, 

just as we do in the case of constitutional trial errors, we 

review the totality of the circumstances to determine whether 

the due process violation is harmless beyond a reasonable doubt. 

Young, 64 M.J. at 409; United States v. Rodriguez-Rivera, 63 

M.J. 372, 386 (C.A.A.F. 2006); Allison, 63 M.J. at 371. 

 Where an appellant alleges a due process violation in a 

post-trial delay context, and where a due process violation is 

found, the analysis performed by the appellate court necessarily 

 

7

 In Allende, the court assumed a due process violation, which 

eliminated the need for the balancing analysis, and went 

directly to reviewing the totality of the circumstances to 

determine whether the assumed error was harmless beyond a 

reasonable doubt. 66 M.J. at 145 (citing Allison, 63 M.J. at 

370-71). While Allende presents a different approach for coming 

to the conclusion that there was a due process violation than 

cases, such as this one, which utilize the Barker balancing 

analysis to determine that there was a due process violation, 

there is no difference in the burden and standard for reviewing 

whether that error was harmless beyond a reasonable doubt. See, 

e.g., Toohey, 63 M.J. at 359-62; Jones, 61 M.J. at 84-85. 

Specifically, under both approaches, the Government bears the 

burden and this court reviews the totality of the circumstances 

de novo. 
United States v. Bush, 09-0119/MC 

18

involves two separate prejudice determinations. For this 

reason, the discussion of “prejudice” in the context of a posttrial delay due process violation can be confusing. To be 

clear, the initial prejudice review occurs in evaluating the 

fourth Barker factor, which defines prejudice to include 

oppressive incarceration, undue anxiety, and “‘limitation of the 

possibility that a convicted person’s grounds for appeal, and 

his or her defenses in case of reversal and retrial, might be 

impaired.’” Moreno, 63 M.J. at 138-39 (citations omitted). If 

a due process violation is found after balancing the Barker

factors, the appellate court determines whether, under the 

totality of the circumstances, the error is harmless beyond a 

reasonable doubt. That “harmless beyond a reasonable doubt” 

review necessarily involves a prejudice analysis, and although 

it involves a review of the same record, the scope and burden 

differ from the Barker prejudice analysis. 

The en banc Court of Criminal Appeals found there was no 

Barker prejudice, but in balancing the remaining factors, the 

lower court determined that there was a due process violation. 

Bush CCA II, 67 M.J. at 512. We have no reason to disturb that 

conclusion.8 Instead, in consideration of the granted issue, we 

 

8

 As this court has previously stated, “[n]o single factor is 

required for finding a due process violation and the absence of 

a given factor will not prevent such a finding.” Moreno, 63 

M.J. at 136. In Toohey, we held that where no prejudice is 
United States v. Bush, 09-0119/MC 

19

focus on the determination that the due process error was 

harmless beyond a reasonable doubt. Id. at 513. Bush contends 

that the court imposed a burden upon him to raise a reasonable 

doubt that the due process error was harmless. We note that the 

language of the Court of Criminal Appeals could be read to 

suggest that by “weigh[ing] heavily” Bush’s failure to 

substantiate his claim of employment prejudice the lower court 

placed some burden of production upon Bush. Id. If that is the 

effect of the lower court’s decision, it is in error. Bush bore 

no burden of demonstrating prejudice resulting from a due 

process violation. However, in the absence of independent 

evidence that Bush would have been hired or was otherwise 

impaired from competing for a job for which he was qualified, it 

 

found under Barker factor four, a due process violation could be 

found if the delay “is so egregious that tolerating it would 

adversely affect the public’s perception of the fairness and 

integrity of the military justice system.” 63 M.J. at 362. 

While the Government and the concurring opinion take issue with 

this language, it is not ultimately determinative in the present 

case and is therefore not addressed in the majority opinion. 

Nevertheless, the Government overreads this language. Barker

factor four addresses specific prejudice to an appellant, not 

public perception. To clarify, the “public perception” analysis 

is utilized in quantifying the appropriate weight that is to be 

given to Barker factors one (length of delay) and two (reasons 

for delay) when balancing all the factors. In this case, Barker

factors one and two weigh in Appellant’s favor; however, as 

detailed above, we decide this case on the ground that any 

appellate delay was ultimately harmless beyond a reasonable 

doubt. 
United States v. Bush, 09-0119/MC 

20

is also true that the Government may more readily demonstrate 

that any error is harmless beyond a reasonable doubt. 

 We now review the totality of the circumstances de novo to 

determine whether the post trial delay was harmless beyond a 

reasonable doubt. This case involves a seven-year post-trial 

delay, which is unreasonable on its face and which initially 

triggered the due process analysis. The delay was largely 

unexplained and was attributed to the Government. However, the 

record is bereft of any evidence of prejudice to Bush as a 

result of the delay.9

 In circumstances where a record 

establishes that an appellant has suffered Barker prejudice, the 

 

9

 As noted supra at pp. 6-7, the record contains Bush’s own 

declaration claiming that he was not hired for a particular job 

because he did not have his DD Form 214. Post-trial submissions 

have no automatic value as evidence where they are not relevant 

or where they are not based upon personal knowledge of the 

declarant. See M.R.E. 401, M.R.E. 402, and M.R.E. 602. Thus, 

with respect to determining whether an appellant meets his 

burden of demonstrating fourth-prong, Barker prejudice or with 

respect to reviewing the entire record to determine if a posttrial delay due process violation is harmless beyond a 

reasonable doubt, a reviewing court must first determine whether 

post-trial submissions merit consideration. See Allende, 66 

M.J. at 145 (assertions in personal affidavit about potential 

employers’ employment practices not substantiated); Gosser, 64 

M.J. at 98 (failed to substantiate any claim of Barker prejudice 

where, in part, clemency assertions of defense counsel were not 

based upon personal knowledge); Jones, 61 M.J. at 85 (prejudice 

established by the appellant’s declaration about post-trial 

employment difficulties which was substantiated by independent 

declarations based upon personal knowledge). Bush’s declaration 

as to the reasons that the particular employer declined to hire 

him is not based on personal knowledge. See supra at p. 11. As 

such, his unsupported allegations of employment prejudice have 

no impact under our totality of the circumstances review. 
United States v. Bush, 09-0119/MC 

21

Government’s burden to establish that the constitutional 

violation was harmless beyond a reasonable doubt may be 

difficult to attain. The corollary seems apparent. In those 

cases where the record does not reflect Barker prejudice, as a 

practical matter, the burden to establish harmlessness may be 

more easily attained by the Government. 

Under the totality of circumstances in this record, we are 

confident that the due process violation was harmless beyond a 

reasonable doubt. To find otherwise would essentially adopt a 

presumption of prejudice in cases where the appellate court has 

found a due process violation as a result of unreasonable posttrial delay in the absence of Barker prejudice. We have 

declined to adopt such a standard in the past and see no need to 

alter that position. See Moreno, 63 M.J. at 142 (noting that it 

is “unnecessary” to adopt a presumption of prejudice at this 

point as the court “can deter these delays and address the 

systemic delays we see arising in post-trial and appellate 

processing through less draconian measures”); see also Toohey, 

63 M.J. at 363 (“we do not presume prejudice based on the length 

of the delay alone”). 

 We have reviewed the totality of the circumstances and the 

entire record, and conclude that record reflects that the posttrial delay due process violation was harmless beyond a 

reasonable doubt. As a consequence, we conclude that any error 
United States v. Bush, 09-0119/MC 

22

by the Court of Criminal Appeals in placing a burden of 

production on Bush was harmless beyond a reasonable doubt. 

DECISION 

We affirm the decision of the United States Navy-Marine 

Corps Court of Criminal Appeals. 
United States v. Bush, No. 09-0119/MC 

RYAN, J., with whom STUCKY, J., joins (concurring in the 

judgment): 

 Relying on this Court’s holding in United States v. Toohey

(Toohey II), the majority accepts the lower court’s holding that 

the significant appellate delay in this case violated 

Appellant’s Fifth Amendment right to due process. See United 

States v. Bush, __ M.J. __, __ (18 & n.8) (C.A.A.F. 2009) 

(finding due process violations when “the delay ‘is so egregious 

that tolerating it would adversely affect the public’s 

perception of the fairness and integrity of the military justice 

system’” (quoting Toohey II, 63 M.J. 353, 362 (C.A.A.F. 2006))). 

The majority then finds that any constitutional error from the 

delay was harmless beyond a reasonable doubt because the record 

contains insufficient evidence that Appellant was prejudiced by 

the delay. Id. at 18-21. Though I agree with the majority that 

Appellant is not entitled to relief, and therefore concur in the 

judgment, I do so because I do not believe that Appellant’s 

Fifth Amendment rights were violated. I write separately 

because I think the Court should have accepted the Government’s 

request to reconsider our appellate delay due process 

jurisprudence. This Court’s apparent ruling in Toohey II should 

be abandoned, and we should cease the practice of basing due 

process violations on public perception. 

 The Fifth Amendment states “No person shall be . . . 
United States v. Bush, No. 09-0119/MC 

2

deprived of life, liberty, or property, without due process of 

law.” U.S. Const. amend. V. For convicted servicemembers with 

a right to an appeal, this prohibition grants a right to timely 

review of their convictions. United States v. Moreno, 63 M.J. 

129, 132 (C.A.A.F. 2006). To determine whether this right has 

been violated, this Court applies the four factors adopted by 

the Supreme Court in Barker v. Wingo, 407 U.S. 514, 530 (1972), 

for analyzing alleged violations of the Sixth Amendment Speedy 

Trial Clause: (1) the length of the delay; (2) the reasons for 

the delay; (3) the appellant’s assertion of his right to a 

timely appeal; and (4) the prejudice to the appellant. Moreno, 

63 M.J. at 135; Toohey v. United States (Toohey I), 60 M.J. 100, 

102 (C.A.A.F. 2004). 

Our analysis of prejudice related to post-trial appellate 

delay considers three interests, each of which is tied to the 

delay and the appellant: “‘(1) prevention of oppressive 

incarceration pending appeal; (2) minimization of anxiety and 

concern of those convicted awaiting the outcome of their 

appeals; and (3) limitation of the possibility that a convicted 

person’s grounds for appeal, and his or her defenses in case of 

reversal and retrial, might be impaired.’” Moreno, 63 M.J. at 

138-39 (quoting Rheuark v. Shaw, 628 F.2d 297, 303 n.8 (5th Cir. 

1980)). Appellant did not allege and the lower court did not 

find any prejudice to these interests in this case. United 
United States v. Bush, No. 09-0119/MC 

3

States v. Bush, 67 M.J. 508, 513 (N-M. Ct. Crim. App. 2008) 

(“The appellant does not assert and our review of the record did 

not reveal evidence that the appellant has suffered ongoing 

prejudice from oppressive incarceration or undue anxiety.”1). 

And although Appellant alleged employment prejudice, cf. United 

States v. Jones, 61 M.J. 80, 84 (C.A.A.F. 2005) (finding 

prejudice where appellant demonstrated that the delay actually 

interfered with his ability to find specific post-military 

employment), this claim failed because Appellant provided no 

“independent evidence to support his claim that lack of a DD 

Form 214 impaired his ability to secure employment and did not 

demonstrate a valid reason for not doing so.” Bush, __ M.J. at 

__ (13). 

 The absence of prejudice in this case should end the due 

process inquiry. But in Toohey II, relied upon by both the 

United States Navy-Marine Corps Court of Criminal Appeals (CCA) 

and the majority in this case, the Court appeared to recognize a 

due process violation even in the absence of prejudice, based on 

delay so egregious “it would adversely affect the public’s 

perception of the fairness and integrity of the military justice 

 

1

 Although the CCA did not explicitly address it, Appellant has 

not alleged and the record does not indicate any impairment to 

his appeal or potential retrial. 
United States v. Bush, No. 09-0119/MC 

4

system.” Toohey II, 63 M.J. at 362.2 The problem is that damage 

to the public’s perception of the military justice system, while 

unfortunate, has no relation to a deprivation of life, liberty, 

or property of an appellant, and does not constitute prejudice 

to an appellant.3

 “Judges are not free, in defining ‘due 

process,’ to impose on law enforcement officials our ‘personal 

and private notions’ of fairness and to ‘disregard the limits 

that bind judges in their judicial function.’” United States v. 

Lovasco, 431 U.S. 783, 790 (1977) (quoting Rochin v. California, 

342 U.S. 165, 170 (1952)). In my view, Toohey II’s holding 

 

2

 Although the Court may have intended to reinterpret, rather 

than replace, the Barker factors, see Bush, __ M.J. at __ (19 

n.8) (“To clarify, the ‘public perception’ analysis is utilized 

in quantifying the appropriate weight that is to be given to 

Barker factors one (length of delay) and two (reasons for delay) 

when balancing all the factors.”), subsequent courts have 

nonetheless accepted the Toohey II opinion as a means of finding 

constitutional violations based only on public perception. See, 

e.g., United States v. Abdirahman, 66 M.J. 668, 683 (N-M. Ct. 

Crim. App. 2008) (treating adverse public perception as separate 

ground for relief); United States v. Bredschneider, 65 M.J. 739, 

742 (N-M. Ct. Crim. App. 2007) (“After weighing the four Barker

factors, we conclude that the appellant has not suffered a 

Barker-type post-trial due process violation. However, even 

without specific prejudice, a due process violation may result 

if the “delay is so egregious that tolerating it would adversely 

affect the public’s perception of the fairness and integrity of 

the military justice system.” (quoting Toohey II, 63 M.J. at 

362)). If this is not what the Court intended, that is all the 

more reason to revisit Toohey II. 3

 Further, I question whether Appellant has standing to complain 

of an injury to the public’s perception of the military justice 

system. Generally, “a litigant must assert his or her own legal 

rights and interests, and cannot rest a claim to relief on the 

legal rights or interests of third parties.” Powers v. Ohio, 

499 U.S. 400, 410 (1991) (citing Dep’t of Labor v. Triplett, 494 

U.S. 715, 720 (1990); Singleton v. Wulff, 428 U.S. 106 (1976)). 
United States v. Bush, No. 09-0119/MC 

5

impermissibly expands the scope of a purported constitutional 

violation beyond the bounds of interests protected by the Fifth 

Amendment. 

Moreover, the holding in Toohey II permits this Court to 

find due process violations without any showing of specific 

prejudice to an appellant. 63 M.J. at 359 (stating that “‘no 

single [Barker] factor [is] required to find that post-trial 

delay constitutes a due process violation’” (quoting Moreno, 63 

M.J. at 136) (second bracketed interpolation in original)). 

Whatever the necessity or sufficiency of a particular Barker

factor, though, and regardless whether there may be the rare and 

unusual situation where the prejudice factor can be either 

presumed or bypassed entirely, it does not follow that this 

Court may apparently substitute public perception as a new 

factor to replace a showing of prejudice. This practice puts 

our Court at odds with almost all other federal courts to have 

considered the issue.4

 Indeed, our post-trial-delay due process 

 

4

 Seven circuits and the District of Columbia (which also applies 

Fifth Amendment law) have held that prejudice is a required 

element of a timely appeal due process violation. See, e.g., 

United States v. Rodriguez, 259 Fed. App’x 270, 277-78 (11th 

Cir. 2007); United States v. DeLeon, 444 F.3d 41, 57 (1st Cir. 

2006); United States v. Gray, 52 Fed. App’x 650, 654 (6th Cir. 

2002); United States v. Wiktor, 146 F.3d 815, 819 (10th Cir. 

1998); United States v. Hawkins, 78 F.3d 348, 352 (8th Cir. 

1996); United States v. Kimmons, 917 F.2d 1011, 1014–15 (7th 

Cir. 1990); United States v. Antoine, 906 F.2d 1379, 1382 (9th 

Cir. 1990); United States v. Alston, 412 A.2d 351, 357-58 (D.C. 

1980). One more circuit has applied a prejudice requirement 
United States v. Bush, No. 09-0119/MC 

6

jurisprudence is based on the Supreme Court’s Sixth Amendment 

speedy trial jurisprudence, which requires a showing of 

prejudice to establish a speedy trial violation. Reed v. 

Farley, 512 U.S. 349, 353 (1994). “[T]hat necessary ingredient 

is entirely missing here.” Id. 

Nor is it clear how helpful Toohey II is to appellants in 

practice, as it necessarily leads to bizarre scenarios like the 

one presented today. First, the CCA decided that Appellant had 

failed to establish any constitutionally cognizable prejudice. 

Then, despite this failure, the CCA concluded that there was a 

due process violation based on public perception. Finally, the 

CCA awarded no relief because it was convinced, as this Court 

agrees, that the constitutional violation was harmless beyond a 

reasonable doubt -- the Government met its burden because 

Appellant did not provide independent evidence of his lost 

 

when analyzing the Fourteenth Amendment’s due process 

protections, see Heiser v. Ryan, 15 F.3d 299, 304 (3d Cir. 

1994), and would presumably apply such a requirement in a Fifth 

Amendment case. Only the Second Circuit appears to find a due 

process violation without a showing of prejudice, but has then 

required a showing of prejudice before that violation warrants a 

remedy. Elcock v. Henderson, 28 F.3d 276, 279 (2d Cir. 1994). 

The Fourth, Fifth, and District of Columbia Circuits do not 

appear to have addressed this point directly. However, the 

Fifth Circuit has frequently stressed the importance of 

prejudice in analyzing alleged due process violations, calling 

it “the most important factor,” and emphasizing that it is 

ordinarily, though perhaps not absolutely, required. United 

States v. Bermea, 30 F.3d 1539, 1568-69 (5th Cir. 1994). No 

court relies on public perception as a substitute for prejudice.
United States v. Bush, No. 09-0119/MC 

7

employment opportunity. 

This reasoning comes dangerously close to shifting onto 

Appellant the burden of proving harmlessness. Despite the 

assurances of the majority that Appellant “bore no burden of 

demonstrating prejudice,” the majority admits that the 

Government’s burden was “more readily demonstrate[d]” in the 

absence of such evidence. __ M.J. at __ (19, 20); see also id.

at __ (15) (“It is . . . clear that it is solely the 

Government’s burden to persuade the court that constitutional 

error is harmless beyond a reasonable doubt. We have not 

deviated from th[is] black letter principle[] in developing our 

post-trial delay, due process jurisprudence.” (citations 

omitted)). The reality, then, is that in cases where prejudice 

is not part of the basis for the alleged due process violation, 

the Toohey II rule arguably shifts the burden to the appellant 

in the harmlessness analysis to prove the very prejudice the 

Court failed to require in the first place. 

This situation could easily be avoided. If we were to 

require, like most of the federal circuits, a showing of 

prejudice before finding a due process violation, as the Supreme 

Court’s speedy trial jurisprudence suggests we should, we would 

eliminate this problem: If an appellant submits evidence of 

prejudice sufficient to show a constitutional violation, that 

evidence will already be part of the record and present for the 
United States v. Bush, No. 09-0119/MC 

8

Court’s consideration at the harmlessness analysis. This would 

not only be cleaner and simpler, but it also would follow the 

ordinary model of constitutional inquiry into an alleged due 

process violation. See, e.g., Gardner v. California, 393 U.S. 

367, 370 (1969) (placing the burden on the petitioner to 

convince the appellate court of the error below); Chapman v. 

California, 386 U.S. 18, 24 (1967) (requiring “the beneficiary 

of a constitutional error to prove beyond a reasonable doubt 

that the error complained of did not contribute to the verdict 

obtained”); United States v. Harvey, 64 M.J. 13, 25 (C.A.A.F. 

2006) (quoting United States v. Brewer, 61 M.J. 425, 432 

(C.A.A.F. 2005)). 

I would revisit and either clarify or overrule Toohey II, 

but respectfully concur in the judgment.