UNITED STATES, Appellee 

v. 

Brian DEARING, Operations Specialist Seaman 

U.S. Navy, Appellant 

No. 05-0405 

Crim. App. No. 200100291 

United States Court of Appeals for the Armed Forces 

Argued March 1, 2006 

Decided September 18, 2006 

GIERKE, C.J., delivered the opinion of the Court, in which 

EFFRON and ERDMANN, JJ., joined. BAKER, J., filed a separate 

opinion concurring in the result. CRAWFORD, J., filed a 

dissenting opinion. 

Counsel 

For Appellant: David P. Sheldon, Esq. (argued); Lieutenant 

Stephen C. Reyes, JAGC, USNR (on brief); Philip Sundel, Esq. 

For Appellee: Major Wilbur Lee, USMC, (argued); Commander

Charles N. Purnell II, JAGC, USN (on brief); Captain Glen R. 

Hines, USMC. 

Military Judge: Clark A. Price 

This opinion is subject to revision before final publication. 
United States v. Dearing, No. 05-0405/NA 

2

Chief Judge GIERKE delivered the opinion of the Court. 

It is a “basic rule that instructions must be sufficient to 

provide necessary guideposts for an ‘informed deliberation’ on 

the guilt or innocence of the accused.”1 In this case, the 

pivotal issue is whether the military judge failed to provide a 

correct instruction pertaining to Appellant’s right to exercise 

self-defense. The prosecution evidence presented Appellant as 

the initial aggressor in a lethal altercation. But the defense 

evidence presented actions of members of a hostile group that 

arguably escalated the conflict, thereby permitting Appellant to 

use reasonable force to defend himself. We hold that the 

military judge erred in failing to instruct the panel on the 

concept of escalation of the conflict as it relates the issue of 

self-defense. This significant defect in the instruction 

requires us to reverse the decision of the United States NavyMarine Corps Court of Criminal Appeals.2

 

This is not the only issue presently before this Court.3

 We 

also address Appellant’s assertion that he was denied a speedy 

 

1

 United States v. Anderson, 13 C.M.A. 258, 259, 32 C.M.R. 258, 

259 (1962) (citing United States v. Landrum, 4 C.M.A. 707, 713, 

16 C.M.R. 281, 287 (1954); United States v. Acfalle, 12 C.M.A. 

465, 470, 31 C.M.R. 51, 56 (1961)); see also Anthony v. 

Louisville & Nashville R.R. Co., 132 U.S. 172, 173 (1889) (“The 

object of the instructions was to impart such information as 

would govern the jury in their deliberations and guide to a 

right conclusion in their verdict.”). 

2

 United States v. Dearing, 60 M.J. 892 (N-M. Ct. Crim. App. 

2005). 

3

 This Court granted review on two issues: 
United States v. Dearing, No. 05-0405/NA 

3

post-trial and appellate review. We hold that Appellant was 

denied his due process right to speedy post-trial and appellate 

review and grant appropriate relief. 

I. FACTS 

A. General Background of the “Road Rage” Incident

Appellant’s alleged offenses arise from his involvement in 

an on-base “road rage” fight. The incident implicated Appellant 

and three friends, riding in two cars, and three victims with 

four additional friends, also in two cars. Prior to this 

incident, neither group knew the other group. Several of those 

involved in this incident had been drinking alcohol that 

evening. The actual incident lasted only a few minutes. 

The lower court identifies the alignment of the adversaries 

and the circumstances of the fight: 

On the night of 18 September 1999, the appellant, his 

girlfriend, Teresa Wilson, and two other friends, Fireman 

(FN) Anthony S. Taylor, U.S. Navy, and his wife, Jennifer 

Taylor, went to see a movie at the Norfolk, Virginia Naval 

Base movie theater. The appellant and his girlfriend went 

to the movie theater complex in the appellant’s black Isuzu 

Amigo and the Taylor couple went separately in FN Taylor’s 

black Dodge Avenger. 

 

I. WHETHER THE MILITARY JUDGE ERRED BY FAILING TO PROPERLY 

INSTRUCT THE PANEL REGARDING APPELLANT’S RIGHT AS AN 

AGGRESSOR TO EXERCISE SELF-DEFENSE IN AN ESCALATION OF 

FORCE SITUATION. 

II. WHETHER APPELLANT WAS PROVIDED A TIMELY POST-TRIAL AND 

APPELLATE REVIEW UNDER THE UNIFORM CODE OF MILITARY 

JUSTICE AND THE UNITED STATES CONSTITUTION. 

United States v. Dearing, 62 M.J. 226 (C.A.A.F. 2005). 
United States v. Dearing, No. 05-0405/NA 

4

On that same evening, MM3 Taylor and some of his 

friends, Aviation Ordnanceman Airman Apprentice (AOAA) 

Eldridge J. Wells, Jr., U.S. Navy, AOAN Keaton, and MMFN 

Polydore and his date, Elizabeth Hargrave, saw the same 

movie at the same theater. AOAA Wells and MM3 Taylor went 

to the movie theater with AOAN Keaton in his black Honda 

Accord, which AOAA Wells drove, and MMFN Polydore and his 

date went separately in MMFN Polydore’s tan Mazda Protege. 

Electrician’s Mate Third Class (EM3) Graham Charity, U.S. 

Navy, and his girlfriend, Aviation Storekeeper Third Class 

(AK3) Trisha Marshall, U.S. Navy, both friends of MMFN 

Polydore and MM3 Taylor, were picked up very near the movie 

theater by MMFN Polydore and his date, immediately after the 

movie ended. 

After the movie, all these individuals left the 

theater in the same vehicles they arrived in, with the 

exception of EM3 Charity and AK3 Marshall. Very shortly 

thereafter, a deadly stabbing incident occurred between the 

two movie-going parties in the Navy Exchange parking lot 

near the movie theater. 

As a result of what can only be described as a very 

brief “road rage” incident, partly fueled by alcohol, 

between some or all of the parties in the Dodge Avenger and 

the Honda Accord after leaving the movie theater parking 

lot, those parties shortly thereafter ended up in a verbal 

confrontation in the Navy Exchange parking lot. For 

whatever reason, the parties from both the Isuzu Amigo and 

the Mazda Protege also pulled into the Navy Exchange parking 

lot immediately following the other two vehicles. After the 

dust settled, the appellant had stabbed MM3 Taylor to death, 

and both MMFN Polydore and AOAN Keaton had also been 

seriously stabbed.4

B. Trial Developments

A general court-martial composed of officer and enlisted 

members was convened to consider charges against Appellant that 

included unpremeditated murder, assault with intent to inflict 

grievous bodily harm, assault with a dangerous weapon (a knife), 

 

4

 Dearing, 60 M.J. at 896. 
United States v. Dearing, No. 05-0405/NA 

5

and obstruction of justice.5 Appellant pleaded not guilty to all 

the charged offenses. 

At the court-martial, there was extensive testimony 

regarding the involvement of several members of the group in 

the fracas. The trial was essentially a credibility contest 

that involved “finger pointing” at other people to establish 

responsibility and culpability for this incident. In the 

prosecution case-in-chief, witnesses presented Appellant as 

both the aggressor and assailant in the fight. In his defense, 

Appellant testified and explained his involvement in the 

incident as his attempt to protect his girlfriend. Others also 

testified in support of Appellant’s explanation of the 

incident. 

Appellant testified that after his girlfriend got involved 

in a verbal dispute with the men from the other group, he 

intervened in order to protect her by pushing the men away with 

both hands. Appellant asserted that just as he raised his 

hands, an unknown person, who was neither his own friend, 

Anthony Taylor, nor his own girlfriend, hit him in the back of 

the head. 

Appellant further testified that he heard someone ask, “Do 

you have a gun?” Appellant stated this statement made him 

 

5

 These offenses are punishable under Articles 118, 128, and 134, 

Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 918, 928, 

934 (2000), respectively. 
United States v. Dearing, No. 05-0405/NA 

6

concerned about his safety. Appellant explained that he saw 

the trunk of the black Honda was open, and he believed that 

someone had retrieved a weapon from it. 

Appellant testified at this point he began fighting to 

make his way out of the bad situation. As he was fighting with 

one person, another person was hitting Appellant in the side, 

and yet another person kicked him. Appellant complained that 

he was pushed to the ground and grabbed around the neck as 

another person hit him in the chest. 

Appellant testified that he then remembered the knife he 

had in his pocket, pulled it out, and stuck it out twice in an 

upward thrust. In summary, Appellant asserted that he was 

acting in self-defense to save his own life during the brutal 

attack on him. 

At the conclusion of the presentation of the evidence and 

before the military judge instructed the panel, civilian trial 

defense counsel asked the military judge to give an instruction 

addressing the issue regarding escalation of the conflict as it 

related to the defense of self-defense. Trial defense counsel 

expressly relied on United States v. Cardwell6

 as authority to 

support his entitlement to the requested instruction. The 

record discussion of this issue covers five pages of the record 

of trial. The discussion ended with the military judge 

 

6

 15 M.J. 124 (C.M.A. 1983). 
United States v. Dearing, No. 05-0405/NA 

7

suggesting that the defense counsel, “Give [him] a piece of 

paper on what you want.” 

Complying with this direction, civilian defense counsel 

proffered the following instruction: 

Even if the accused was an aggressor, the accused is 

entitled to use self-defense, if the opposing party 

escalated the level of the conflict. Accordingly, 

even if the accused was the aggressor, if the 

opposing party escalated the conflict by placing the 

accused in reasonable fear that he was at risk of 

death or grievous bodily harm, the accused would then 

be entitled to use deadly force in self-defense. 

In support of the requested instruction, the defense argued 

that even if Appellant were the initial aggressor, he was still 

entitled to rely on the defense of self-defense if the opposing 

party escalated the level of the conflict. 

The military judge refused to give the requested 

instruction and declined to address the issue of escalation of 

the conflict. The military judge explained that in his view 

“the instructions that I have drafted adequately cover the 

issue.” He also opined that “the key explanation is in the 

definition of aggressor.” 

The military judge initially instructed the panel on the 

defense of self-defense. Most relevant to this case, the 

military judge gave the following instruction to address the 

issue of Appellant being an aggressor and its implication on the 

issue of self-defense: 
United States v. Dearing, No. 05-0405/NA 

8

There exists evidence in this case that the accused 

may have been an aggressor. An “aggressor” is one 

who uses force in excess of that believed by him to 

be necessary for defense. There also exists evidence 

that the accused may have voluntarily engaged in 

mutual fighting. An aggressor, or one who 

voluntarily engaged in mutual fighting, is not 

entitled to self-defense unless he previously 

withdrew in good faith. 

Emphasis added. After hearing this instruction and 

deliberating, the panel found Appellant guilty of the charged 

offenses and adjudged a sentence to confinement for twenty-five 

years, reduction to pay grade E-1, forfeiture of all pay and 

allowances, and a dishonorable discharge. The convening 

authority approved the sentence as adjudged. 

C. Ruling of the Navy-Marine Corps Court of Criminal Appeals

The lower court held that the military judge’s instruction 

to the members substantially covered the issues that the defense 

requested to be covered.7 The lower court also concluded that 

even if the defense-requested instruction had not been 

substantially covered in the main charge to the members, the 

military judge’s refusal to give the defense-requested 

instruction on the escalation of violence did not deny Appellant 

a fair trial because it did not deprive him of a defense or 

seriously impair its effective presentation.8

 

 

7

 Dearing, 60 M.J. at 899. 

8

 Id.
United States v. Dearing, No. 05-0405/NA 

9

II. DISCUSSION 

A. Evaluation of Whether the Military Judge’s Self-Defense

Instruction Adequately Addressed the Issue of Escalation of the 

Conflict

Rule for Courts-Martial (R.C.M.) 920(e)(3) provides: 

“Required instructions. Instructions on findings shall include 

. . . (3) A description of any special defense under R.C.M. 916 

in issue[.]” As self-defense is a special defense identified in 

R.C.M. 916, if this defense was at issue in this case, the 

military judge was obligated to give a correct instruction on 

self-defense.9

 

This Court has stated, “The touchstone against which we 

measure the validity of the military judge’s refusal to give an 

instruction on self-defense is whether there is in the record 

some evidence from which a reasonable inference can be drawn 

that the affirmative defense was in issue.”10 In light of 

Appellant’s testimony in the present case, there was “some 

evidence” to raise the issue of self-defense. Indeed, the 

 

9

 See United States v. Martinez, 40 M.J. 426, 431 (C.M.A. 1994) 

(stating that “the court members were not given a correct legal 

framework for evaluating appellant’s claim of self-defense”); 

United States v. Jones, 3 M.J. 279, 280-81 (C.M.A. 1977) (“[T]he 

primary obligation to adequately instruct on a material issue 

[here self-defense] lies with the military judge.”); see 

generally United States v. Groce, 3 M.J. 369, 370-71 (C.M.A. 

1977) (stating that the multiple duties of the military judge 

include a duty to tailor his instructions to fit the facts of 

the case). 

10 United States v. Richey, 20 M.J. 251, 253 (C.M.A. 1985) 

(quoting United States v. Black, 12 C.M.A. 571, 574, 31 C.M.R. 

157, 160 (1961), quoting United States v. Ginn, 1 C.M.A. 453, 

457, 4 C.M.R. 45, 49 (1952)) (quotation marks omitted). 
United States v. Dearing, No. 05-0405/NA 

10

parties agree that the testimony of Appellant warrants an 

instruction on self-defense. Therefore, the focus of this 

appeal is whether the military judge erred by failing to 

properly instruct the panel on the issue of self-defense.11 

This Court reviews the adequacy of the military judge’s 

instruction de novo.12 In United States v. Wolford,13 we 

explained: 

If instructional error is found, because there are 

constitutional dimensions at play, [the appellant’s] claims 

must be tested for prejudice under the standard of harmless 

beyond a reasonable doubt. . . . The inquiry for 

determining whether constitutional error is harmless beyond 

a reasonable doubt is whether, beyond a reasonable doubt, 

the error did not contribute to the defendant’s conviction 

or sentence.14

The military judge generally instructed the panel on the issue 

of self-defense. The military judge’s self-defense instructions 

 

11 As the granted issue focuses on this issue, we do not address 

the collateral question of whether the military judge erred in 

not giving the specific instruction requested by the defense. 

See United States v. Jackson, 15 C.M.A. 603, 613, 36 C.M.R. 101, 

111 (1966) (Ferguson, J., dissenting) (“As self-defense was 

placed in issue, it is necessary, as the granted question 

indicates, to examine the instructions of the law officer in 

order to determine their accuracy.”). 

12 United States v. Bean, 62 M.J. 264, 266 (C.A.A.F. 2005) (“We 

review allegations of error involving mandatory instructions de 

novo.” (citing United States v. Forbes, 61 M.J. 354, 357 

(C.A.A.F. 2005); United States v. Smith, 50 M.J. 451, 455 

(C.A.A.F. 1999)); see generally United States v. Kasper, 58 M.J. 

314, 318 (C.A.A.F. 2003) (“The issue of whether the members were 

properly instructed is a question of law, which we review de 

novo.”). 

13 62 M.J. 418 (C.A.A.F. 2006). 

14 Id. at 420 (quoting United States v. Kreutzer, 61 M.J. 293, 

298 (C.A.A.F. 2005), quoting United States v. Kaiser, 58 M.J. 

146, 149 (C.A.A.F. 2003)) (quotation marks omitted). 
United States v. Dearing, No. 05-0405/NA 

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addressed the following: (1) that Appellant must have had a 

reasonable belief that death or grievous bodily harm was about 

to be inflicted upon him; (2) that Appellant must have actually 

believed that the amount of force he used was required to 

protect against death or serious bodily harm; and (3) that 

Appellant is not required to pause at his peril to evaluate the 

degree of danger or the amount of force necessary to protect 

himself. 

However, the military judge instructed the panel that the 

Appellant may have been an aggressor. The military judge also 

defined aggressor as “one who uses force in excess of that 

believed by him to be necessary for defense.” Finally, the 

military judge explained that a person who is considered an 

“aggressor” or engaged in mutual fighting, without previously 

withdrawing in good faith, is not entitled to argue selfdefense. The decisional issue in this case arises from a 

defense challenge to the completeness and correctness of the 

self-defense instruction. 

Appellant argues that the military judge’s instructions 

eviscerated Appellant’s case by foreclosing self-defense based 

on a theory of escalation of the conflict. Appellant asserts 

that the military judge’s instruction incorrectly ignored the 

principle of law that “Even a person who starts an affray is 
United States v. Dearing, No. 05-0405/NA 

12

entitled to use self-defense when the opposing party escalates 

the level of the conflict.”15 

Cardwell recognized that an initial aggressor is still 

entitled to use deadly force in his own defense, just as he 

would be if he withdrew completely from combat and was then 

attacked by his opponent, in instances where the adversary 

escalates the level of conflict.16 In Cardwell, this Court 

explained, “The theory of self-defense is protection and not 

aggression, and to keep the two in rough balance the force to 

repel should approximate the violence threatened.”17 

This Court also explained the concept of escalation of the 

conflict with this simple illustration: “Thus, if A strikes B a 

light blow with his fist and B retaliates with a knife thrust, A 

is entitled to use reasonable force in defending himself against 

such an attack, even though he was originally the aggressor.”18 

At trial the civilian defense counsel expressly relied on 

Cardwell in requesting an instruction that presented and 

explained the theory of escalation of the conflict. 

In light of Cardwell, we test the adequacy of the military 

judge’s instruction as it related to the Appellant’s selfdefense claim. 

 

15 Cardwell, 15 M.J. at 126 (citing United States v. AcosteVargas, 13 C.M.A. 388, 32 C.M.R. 388 (1962); United States v. 

Straub, 12 C.M.A. 156, 30 C.M.R. 156 (1961)). 

16 Id.

17 Id. (quoting Straub, 12 C.M.A. at 160, 30 C.M.R. at 160. 

18 Id. 
United States v. Dearing, No. 05-0405/NA 

13

The instructions, given by the military judge, did not 

adequately cover the concept of escalation of the conflict. In 

our view the military judge failed in his duty to give an 

“instruction as a whole [that] provides meaningful legal 

principles for the court-martial’s consideration.”19 In fact, 

the military judge did not even address the concept of 

escalation of the conflict. The military judge compounded this 

error by giving an instruction that severely limited the 

military members’ ability to consider fairly Appellant’s selfdefense theory. The military judge erroneously instructed the 

panel that Appellant, if an aggressor or a person voluntarily 

engaged in mutual fighting, was not entitled to self-defense 

unless he previously withdrew in good faith. 

This instruction required Appellant to establish that he 

withdrew before he used reasonable force to defend himself. 

Effectively, if the members found Appellant to be an aggressor 

or one who engaged in mutual fighting, this instruction 

precluded him from arguing that he had no choice but to defend 

himself against the escalating violence perpetrated against him. 

According to testimony offered by the defense, Appellant was 

hit, kicked, beaten, and knocked to the ground so that he was 

not in a position to retreat because of the attack on him. In 

 

19 United States v Smith, 8 C.M.A. 582, 584, 25 C.M.R. 86, 88 

(1958); see United States v. Truman, 19 C.M.A. 504, 507, 42 

C.M.R. 106, 109 (1970). 
United States v. Dearing, No. 05-0405/NA 

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light of this defense evidence, we agree with Appellant that the 

lower court erred when it concluded that the military judge’s 

instruction sufficiently covered the issues that were supposed 

to be addressed. 

The Government argues that the defense evidence, including 

Appellant’s testimony, fails to support the defense-requested 

instruction relating to escalation of the violence. As a 

result, the Government contends that Appellant never needed the 

unique instructions drafted by the defense counsel. We reject 

this argument based on the prosecution’s evidence that 

established Appellant’s early role in the incident as a possible 

aggressor, the defense evidence of mutual combat, and an 

escalation of the conflict by others.20 

We acknowledge that the instruction trial defense counsel 

presented to the military judge relating to the theory of 

escalation of the conflict was not perfect. The defenserequested instruction was correct, however, in its statement of 

the legal theory of escalation of the conflict. The only defect 

in the requested instruction was an imprecise statement as to 

the force that Appellant might lawfully use in response to an 

 

20 United States v. Jackson, 12 M.J. 163, 167 (C.M.A. 1981) 

(“[T]he instructional duty arises whenever ‘some evidence’ is 

presented to which the fact finders might ‘attach credit if’ 

they so desire.” (quoting United States v. Evans, 17 C.M.A. 238, 

242, 38 C.M.R. 36, 40 (1967))); R.C.M. 920(e)(3) Discussion 

(explaining that an instruction is required when there is “some 

evidence . . . upon which members might rely if they choose”). 
United States v. Dearing, No. 05-0405/NA 

15

escalation, stating that “the accused would then be entitled to 

use deadly force in self-defense.” It is unclear whether trial 

defense counsel tailored the instruction to support his argument 

or relied on language in a footnote of Cardwell that explained a 

situation where another accused was “entitled to use deadly 

force in his own defense.”21 A technically precise instruction 

should have asserted only that “the accused would then be 

entitled to use force the accused believed was necessary for 

protection against death or grievous bodily harm.”22 

This deficiency in the defense proposed instruction does 

not excuse the military judge from his duty to instruct the 

panel on the essential defense theory of escalation of the 

conflict as it related to self-defense.23 Based upon the 

testimony favoring Appellant, the military judge was required 

to tailor his instructions to the facts in the case and to give 

an instruction that addressed the concept of escalation of the 

conflict.24 His failure to do so was a deficiency that rendered 

 

21 15 M.J. at 126 n.3. 

22 See R.C.M. 916 (e)(1)(B). 

23 See United States v. McMonagle, 38 M.J. 53, 58 (C.M.A. 1993) 

(“The military judge has an affirmative, sua sponte duty to 

instruct on special defenses reasonably raised by the 

evidence.”); R.C.M. 920(e)(3). 

24 See Martinez, 40 M.J. at 431 (“The military judge has a duty 

to tailor his instructions to fit the facts of the case.”). 

Consistent with Cardwell, a proper self-defense instruction 

should have informed the members of the following: “Even a 

person who starts an affray is entitled to use self-defense when 

the opposing party escalates the level of the conflict. 15 M.J. 

at 126. One who claims to be “subjected . . . [to] escalation 
United States v. Dearing, No. 05-0405/NA 

16

the instruction on self-defense erroneous and incomplete. As to 

the impact of this instructional error, this Court has stated, 

“Once it is determined that a specific instruction is required 

but not given, the test for determining whether this 

constitutional error was harmless is whether it appears ‘beyond 

a reasonable doubt that the error complained of did not 

contribute to the verdict obtained.’”25 

We conclude that the error in this case is not harmless 

beyond a reasonable doubt. The defense theory of escalation of 

the conflict was a vital point in the case. This instructional 

error eviscerated the Appellant’s self-defense theory rooted in 

the concept of escalation of the conflict. Because of this 

instructional error, Appellant was denied the opportunity to 

argue that he had a right to exercise self-defense due to the 

escalating violence being perpetrated against him. Moreover, 

without a correct self-defense instruction, the members did not 

have guideposts for an “informed deliberation.”26 

In our view the appropriate remedy for this constitutional 

violation is that we set aside only the guilty findings related 

to Appellant’s murder and aggravated assault offenses (Charge I 

 

of the conflict” is “allow[ed] to use reasonable force in 

defending against it.” Id. 25 United States v. McDonald, 57 M.J. 18, 20 (C.A.A.F. 2002) 

(quoting Chapman v. California, 386 U.S. 18, 24 (1967)). 

26 Anderson, 13 C.M.A. at 259, 32 C.M.R. at 259; see also Truman, 

19 M.A. at 507, 42 C.M.R. at 109 (stating that a proper 

instruction “provides meaningful legal principles for the courtmartial’s consideration”). 
United States v. Dearing, No. 05-0405/NA 

17

and Charge II) as the issue of self-defense was only applicable 

to these offenses. We conclude that there was no danger of 

prejudicial spillover from Appellant’s murder offenses to the 

obstruction of justice offense. 

Addressing the concept of spillover, this Court explained 

that the focus of concern is whether “overwhelming proof on one 

[offense that is set aside] will “spill over” and prejudice a 

legitimate defense to another.27 In this case, there is no such 

danger in light of the unique trial developments arising from 

Appellant’s testimony. 

Appellant testified on the merits and admitted that he told 

one friend, “If it comes down to it, we were never at the 

movies.” Appellant also admitted that it was his intent to 

influence this friend and he attempted to do so. Appellant’s 

testimony is tantamount to a judicial confession to obstruction 

of justice as Appellant effectively admitted that he was 

attempting to have his friend present a false alibi and thereby 

thwart the police investigation into the stabbing incident. 

Because of Appellant’s testimony, his conviction of the 

Article 134, UCMJ, offense of obstruction of justice was 

independent of and unaffected by either the murder or aggravated 

assault offenses. Therefore, we conclude that there was no 

 

27 United States v. Haye, 29 M.J. 213, 215 (C.M.A. 1989). 
United States v. Dearing, No. 05-0405/NA 

18

prejudicial spillover that tainted the guilty finding to 

obstruction of justice.28 

B. Evaluation of Post-Trial Delay in Appellate Process

Servicemembers have a due process right to timely review 

and appeal of courts-martial convictions.29 Appellant asserts 

that the 1,794 days for a first-level appellate review by a 

service court of criminal appeals was a constitutional due 

process violation. 

In Toohey,30 this Court stated the legal test for 

determining whether Appellant’s due process right was violated 

by excessive post-trial delay. This Court identified the 

following four factors to determine this issue: “(1) length of 

the delay; (2) reasons for the delay; (3) the appellant’s 

assertion of his right to a timely appeal; and (4) prejudice to 

the appellant.”31 

 

28 See McMonagle, 38 M.J. at 61 (concluding that instructional 

error as to mistake of fact was prejudicial error only to a 

murder offense and not to other offenses including obstruction 

of justice). 

29 Toohey v. United States, 60 M.J. 100, 101 (C.A.A.F. 2004). 

30 In Toohey, this Court held that the appellant established a 

threshold showing of facially unreasonable delay, even without 

showing prejudice. Id. at 103. This Court remanded to the 

Navy-Marine Corps Court of Criminal Appeals for it to determine 

whether the lengthy delay violated the appellant’s Fifth 

Amendment right to due process and whether the delay warranted 

some form of relief. Id. at 104. 

31 Id. at 102 (citing Barker v. Wingo, 407 U.S. 514, 530 

(1972)). 
United States v. Dearing, No. 05-0405/NA 

19

More recently in United States v. Moreno,32 this Court 

explained, “Once this due process analysis is triggered by a 

facially unreasonable delay, the four factors are balanced, with 

no single factor being required to find that post-trial delay 

constitutes a due process violation.”33 The standard of review 

for a claim of denial of a due process right arising from denial 

of speedy post-trial review and appeal is de novo.34 Consistent 

with this precedent, we evaluate these four factors. 

1. Length of the delay

The lower court acknowledged that “[t]he preparation of 

the necessary pleadings for appellate review in this case has 

taken longer . . . than review of a court-martial of this length 

and complexity should normally take.”35 We agree. 

Appellant was sentenced on March 14, 2000. When the 

convening authority took action on this case on January 12, 

2001, 304 days had elapsed since Appellant was sentenced. This 

case was docketed at the lower court on February 7, 2001. Over 

 

32 63 M.J. 129 (C.A.A.F. 2006). 

33 Id. at 136. 

34 Id. at 135 (citing United States v. Rodriguez, 60 M.J. 239, 

246 (C.A.A.F. 2004); United States v. Cooper, 58 M.J. 54, 58 

(C.A.A.F. 2003)). 

35 Dearing, 60 M.J. at 905. The lower court also concluded that 

no relief from this delay was warranted because there was no 

lack of diligence in the post-trial processing of the case and 

no indication of deliberate or malicious intent that caused the 

delay in Appellant’s post-trial appellate process. Id. We 

proceed to apply the other Barker factors to determine if 

Appellant is entitled to relief for this excessive post-trial 

delay. 
United States v. Dearing, No. 05-0405/NA 

20

four years later, on February 10, 2005, the lower court decided 

this case. The almost five years for a first-level appellate 

review by a service court of criminal appeals is facially 

unreasonable as it is clearly excessive and inordinate. This 

Barker factor weighs heavily in favor of Appellant. 

2. Reasons for the delay

This case is neither unusually long nor complex, and there 

is no reasonable explanation for why it took the convening 

authority over ten months to take action on Appellant’s case. 

We note that Appellant’s assigned appellate defense counsel had 

problems preparing this case. Over two years, original and 

successor military appellate defense counsel filed twenty-one 

motions for enlargements of time that the lower court granted. 

When the court refused to grant further enlargements, military 

appellate defense counsel filed a brief raising issues Appellant 

had asserted pursuant to United States v. Grostefon36 on April 

18, 2003. After the Government filed its pleading on July 18, 

2003, Appellant hired civilian appellate defense counsel who 

entered an appearance on August 1, 2003. This counsel filed a 

brief on behalf of Appellant on October 17, 2003. 

We acknowledge that the defense-requested delay is 

significant. We stated in Diaz v. Judge Advocate General of the 

 

36 12 M.J. 431 (C.M.A. 1982). 
United States v. Dearing, No. 05-0405/NA 

21

Navy37 and reaffirmed in Moreno38 that the Government has the 

ultimate responsibility for the staffing and administrative 

management of the appellate review process for cases pending 

before lower court. Consistent with our decisions in Diaz and 

Moreno, we decline to hold Appellant responsible for the lack of 

“institutional vigilance” that should have been exercised in 

this case.39 

This case was docketed, with briefs filed by the parties, 

for almost fifteen months before the lower court issued its 

decision. Although this was a lengthy period, “we apply a more 

flexible review of this period, recognizing that it involves the 

exercise of the Court of Criminal Appeals’ judicial decisionmaking authority.”40 

The Government has not presented legitimate reasons or 

exceptional circumstances for the excessive post-trial delay 

that is unrelated to the lower court’s decisional period. In 

these circumstances, we conclude that this second Barker factor 

also weighs heavily in favor of Appellant. 

3. Assertion of the right to a timely review and appeal

Appellant did not assert his right to a timely review to 

the lower court. However, in Moreno, we stated, “We also 

 

37 59 M.J. 34, 38 (C.A.A.F. 2003). 

38 63 M.J. at 137. 

39 Id. (quoting Diaz, 59 M.J. at 39-40) (quotation marks 

omitted). 

40 Id.
United States v. Dearing, No. 05-0405/NA 

22

recognize the paradox of requiring Moreno to complain about 

appellate delay either to his appellate counsel who sought 

multiple enlargements of time because of other case commitments 

or to the appellate court that granted the enlargements on a 

routine basis.”41 This is the situation in the present case also 

as military appellate defense counsel filed twenty-one motions 

for enlargements that the lower court granted. Therefore, 

consistent with the approach in Moreno, we would normally weigh 

this factor only slightly against Appellant.42 

In our view the facts of this case invite further analysis 

of this factor. We note that Appellant personally did voice his 

concerns about the unreasonable appellate delay. On January 14, 

2002, in a communication with his appellate defense counsel, 

Appellant objected to his case “sitting idle for almost (1) one 

year” and inquired why he was “constantly put off in [his] posttrial proceedings.” Also, on March 10, 2002, Appellant wrote a 

congressman complaining that his “appellate defense counsel has 

neglected to show any interest at all in helping me.” In light 

of Appellant’s communications, we conclude that this factor also 

weighs in favor of Appellant. 

 

41 Id. at 138.

42 Id. 
United States v. Dearing, No. 05-0405/NA 

23

4. Prejudice

We are most sensitive to this final factor that relates to 

any prejudice either personally to Appellant or the presentation 

of his case that arises from the excessive post-trial delay.43 

In our view, the lack of “institutional vigilance” in this 

case resulted in detailed military appellate defense counsel not 

filing a timely pleading to address the merits of Appellant’s 

case. After granting twenty-one defense enlargements, the lower 

court indicated that it would decide the case without a brief if 

one was not filed by March 14, 2003. Thereafter, detailed 

military appellate counsel merely submitted a Grostefon

submission. Ultimately, Appellate hired a civilian appellate 

counsel who did file a substantive brief on Appellant’s behalf. 

From these factual developments, it appears that a lack of 

“institutional vigilance” effectively denied Appellant his 

statutory right to the free and timely professional assistance 

of detailed military appellate defense counsel.44 This prejudice 

weighs most heavily in Appellant’s favor. 

As Appellant’s appeal is meritorious as to Issue I, he has 

served oppressive incarceration during the appeal period.45 

 

43 Id. at 138-41. 

44 See Article 70, UCMJ, 10 U.S.C. § 870 (2000). 

45 We note that Appellant was sentenced on March 14, 2000, and is 

presently incarcerated. The maximum sentence for the offense of 

obstruction of justice is five years. Manual for CourtsMartial, United States pt. IV, para. 96.e. (2005 ed.). In our 

view Appellant has already suffered prejudice as he has served 
United States v. Dearing, No. 05-0405/NA 

24

Here, Appellant continues to serve the twenty-five-year sentence 

to confinement under a conviction that has now been set aside. 

The appellate delay has resulted in Appellant enduring prolonged 

incarceration awaiting this favorable decision on his appeal. 

This is a circumstance that weighs in the favor of Appellant.46 

Although one facet of prejudice is where an appellant 

demonstrates “particularized anxiety or concern that is 

distinguishable from the normal anxiety experienced by prisoners 

awaiting an appellate decision,”47 Appellant has not made such a 

showing here. 

The last consideration is whether there is any “negative 

impact on his ability to prepare and present his defense at the 

rehearing.”48 We are most concerned that “Due to the passage of 

time, witnesses may be unavailable [and] memories may have faded 

. . . .”49 “In order to prevail on this factor an appellant must 

be able to specifically identify how he would be prejudiced at a 

rehearing due to the delay. Mere speculation is not enough.”50 

Presently, Appellant has not been able to establish specific 

harm that he would encounter at a rehearing and he has not 

demonstrated prejudice. 

 

more than the maximum punishment for the single offense that he 

stands convicted. See Moreno, 63 M.J. at 139. 

46 Id. 47 Id. at 140. 

48 Id. 49 Id.

50 Id. at 140-41 (footnote omitted). 
United States v. Dearing, No. 05-0405/NA 

25

However, as we noted in Moreno, our present analysis of 

this issue may not terminate a later inquiry into the issue of 

prejudice from post-trial delay: 

We are mindful of the difficulty that an appellant and his 

appellate defense counsel may have at this juncture of the 

process in identifying problems that would hinder an 

appellant’s ability to present a defense at rehearing. If 

an appellant does experience problems in preparing for 

trial due to the delay, a Sixth Amendment speedy-trial 

motion could appropriately be brought at the trial level.51

Consistent with Moreno, Appellant may in any later proceeding 

demonstrate prejudice arising from post-trial delay. 

5. Conclusion –- Barker factors

Our consideration of the four Barker factors leads us to 

conclude that Appellant was denied his due process right to 

speedy review and appeal. The unexplained and unreasonably 

lengthy delay and specific prejudice arising from the appellate 

delay, effectively denied Appellant his right to the free 

professional assistance of detailed military appellate defense 

counsel, resulting in a due process violation. We turn next to 

the relief appropriate for this constitutional violation. 

6. Relief afforded to Appellant because of the due process 

violation for denying speedy appellate review

As this due process error is one of constitutional 

magnitude, we are obliged to test this error for harmlessness. 

Indeed, “‘the Government must show that this error was harmless 

 

51 Id. at 141 n.19. 
United States v. Dearing, No. 05-0405/NA 

26

beyond a reasonable doubt.’”52 In light of our disposition of 

Issue I and our conclusion that Appellant has suffered prejudice 

under the Barker analysis, we cannot say that the error arising 

from the post-trial delay is harmless beyond a reasonable doubt. 

Indeed, in our view, this case involves two forms of actual 

prejudice. First, Appellant has endured oppressive 

incarceration because he has been denied a timely review of his 

meritorious claim of legal error for over six years while he was 

incarcerated.53 Second, the lack of “institutional vigilance” 

resulted in appellate delay that effectively denied Appellant 

his statutory right to the free and timely professional 

assistance of detailed military appellate defense counsel. This 

error and its impact on Appellant and his appeal mandate relief. 

As to relief from the due process violation arising from 

the excessive and unreasonable post-trial delay, we seek to 

fashion a remedy that will afford Appellant meaningful relief. 

There is a wide range of relief options available.54 

 

52 United States v. Brewer, 61 M.J. 425, 432 (C.A.A.F. 2005) 

(quoting United States v. Miller, 47 M.J. 352, 359-60 (C.A.A.F. 

1997)). 

53 See supra note 45. 

54 In Moreno we stated: 

The nature of that relief will depend on the circumstances 

of the case, the relief requested, and may include, but is 

not limited to: (a) day-for-day reduction in confinement 

or confinement credit; (b) reduction of forfeitures; (c) 

set aside of portions of an approved sentence including 

punitive discharges; (d) set aside of the entire sentence, 

leaving a sentence of no punishment; (e) a limitation upon 
United States v. Dearing, No. 05-0405/NA 

27

We observe that we have already provided Appellant some 

relief arising from the error related to Issue I. But we 

conclude that further relief is warranted. However, we view 

dismissal with prejudice of the charges inappropriate as 

Appellant has not demonstrated any prejudice to defend against 

the charges at a rehearing. 

In this case, as in Moreno, we are obliged to fashion a 

remedy where we have authorized a rehearing55 and there is 

presently no direct sentence relief that we can provide 

Appellant. In this circumstance we will afford Appellant relief 

depending on the later developments in this case as follows: 

(1) In the event of a rehearing at which the adjudged sentence 

includes confinement, the convening authority shall direct that 

Appellant be credited with an additional 365 days of confinement 

served; (2) In the event that the adjudged sentence at a 

rehearing does not include confinement, the convening authority 

shall approve no portion of a sentence exceeding a punitive 

discharge. 

 

the sentence that may be approved by a convening authority 

following a rehearing; and (f) dismissal of the charges and 

specifications with or without prejudice. Clearly this 

range of meaningful options to remedy the denial of speedy 

post-trial processing provides reviewing authorities and 

courts with the flexibility necessary to appropriately 

address these situations on a case-by-case basis. 

63 M.J. at 143. 

55 The rehearing, whether on findings and sentence or just on 

sentence, is free to adjudge an appropriate sentence. See

United States v. Davis, 63 M.J. 171, 175 (C.A.A.F. 2006). 
United States v. Dearing, No. 05-0405/NA 

28

DECISION 

The decision of the United States Navy-Marine Corps Court 

of Criminal Appeals is reversed only as to Charge I and Charge 

II and both specifications thereunder and the sentence. The 

findings of guilty thereon and the sentence are set aside. The 

decision of the United States Navy-Marine Corps Court of 

Criminal Appeals as to Charge III is affirmed. The record of 

trial is returned to the Judge Advocate General of the Navy. A 

rehearing is authorized. 
United States v. Dearing, No. 05-0405/NA 

BAKER, Judge (concurring in result): 

With respect to the appellate delay, I concur in this 

Court’s conclusion that Appellant suffered actual prejudice as a 

result of enduring “oppressive incarceration because he has been 

denied a timely review of his meritorious claim of legal error 

for over six years while he was incarcerated.” However, I find 

prejudice on this recognized Barker1 basis alone, and therefore, 

I concur in the result. 

Although the appellate delay in this case was excessive, 

the facts are not sufficiently developed for this Court to 

conclude that a “lack of ‘institutional vigilance’” prejudiced 

Appellant by denying him “his statutory right to the free and 

timely professional assistance of detailed military defense 

counsel.” Importantly, if Appellant was prejudiced by a denial 

of his right to timely counsel, it is not clear how this case is 

distinguished from the many other cases of appellate delay we 

have reviewed involving twenty or more defense enlargements for 

time, where we did not find that the appellants were prejudiced 

by a denial of their timely right to military counsel and 

affirmed. As a matter of fairness and principle, like cases 

should be treated in a like manner. 

If there is a difference distinguishing these cases of 

comparable multiple enlargements, it must reside in defense 

 

1

 Barker v. Wingo, 407 U.S. 514 (1972). 
United States v. Dearing, No. 05-0405/NA 

2

counsel’s submission of a Grostefon2 brief in this case. After 

twenty-one enlargements of time, appellate defense counsel was 

given a hard deadline of thirty days in which to file a brief. 

Appellate defense counsel responded by filing a Grostefon brief. 

We do not know whether appellate defense counsel did so at the 

eleventh hour after a cursory review of the record or, whether 

she did so after a careful review of the record and the exercise 

of her best judgment that a Grostefon brief was appropriate. 

If appellate defense counsel’s submission of a Grostefon

brief is the only event distinguishing this case from other 

cases involving comparable enlargements of time, we should 

review counsel’s submission of the Grostefon brief for 

ineffective assistance of counsel, as opposed to finding 

prejudice based on a denial of right to counsel. 

The appellate delay problem in this case was that the 

submission of the Grostefon brief was preceded by over 1,700 

days of unreasonable and excessive delay in appellate 

processing. The appellate delay prejudice arises because, 

consistent with the framework set forth in United States v. 

Moreno, 63 M.J. 129 (C.A.A.F. 2006), Appellant waited six years 

for his meritorious claim to be heard and addressed. 

 

2

 United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). 
United States v. Dearing, No. 05-0405/NA 

 CRAWFORD, Judge (dissenting): 

 I respectfully dissent because the majority continues a 

pattern of refusing to give deference to the President’s 

legislatively mandated rulemaking authority in contravention of 

established principles of separation of powers. See United 

States v. Moreno, 63 M.J. 129, 144 (C.A.A.F. 2006) (Crawford, 

J., concurring in part and dissenting in part). Under Article 

36, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 836 

(2000), the President has the authority to prescribe 

“[p]retrial, trial, and post-trial procedures, including modes 

of proof” unless these provisions are inconsistent with the 

United States Constitution, or the UCMJ. When one enters a 

fight as an aggressor or a mutual combatant, even without a 

weapon, the natural and probable consequences of such action 

includes the possibility that the fight may escalate and the 

other side may overcome the aggressor or the mutual combatant. 

Recognizing the natural and probable consequences of being an 

aggressor or mutual combatant, the President has promulgated 

Rule for Courts-Martial (R.C.M) 916(e)(4), which includes the 

availability or nonavailability of the defense of self-defense. 

It provides: 

The right to self-defense is lost and the defenses 

described in subsections (e)(1), (2), and (3) of this 

rule shall not apply if the accused was an aggressor, 

engaged in mutual combat, or provoked the attack which 

gave rise to the apprehension, unless the accused had 
United States v. Dearing, No. 05-0405/NA 

2

withdrawn in good faith after the aggression, combat, 

or provocation and before the offense alleged 

occurred. 

Generally, the prosecution has the burden of proving beyond 

a reasonable doubt that a defense does not exist. R.C.M. 

916(b). However, R.C.M. 916(e)(4) provides that in homicide and 

assault cases, the right of self-defense is lost where the 

individual is the aggressor or a mutual combatant. 

 By refusing to give deference to the President, the 

majority selectively1

 rejects the hierarchy2 of this rule set 

 

1

 This is not the first time that this Court has rejected rules 

set forth by the President. See, e.g., United States v. 

Mizgala, 61 M.J. 122, 130 (C.A.A.F. 2005) (Crawford, J., 

dissenting in part and concurring in the result) (noting that 

the majority ignored the waiver rule set forth in R.C.M. 

707(e)); see also United States v. Cary, 62 M.J. 277, 280 

nn. 1-2 (C.A.A.F. 2006) (Crawford, J., concurring in the result) 

(setting forth several cases in which this Court refused to 

follow Supreme Court precedent when examining a constitutional 

right or when interpreting the same or similar statute); see, 

e.g., United States v. Miller, 63 M.J. 459 (C.A.A.F. 2006) 

(requiring an addition to R.C.M. 910 advice regarding collateral 

consequences); Moreno, 63 M.J. at 137-44 (setting forth speedy 

review rules); United States v. Key, 57 M.J. 246, 249 (C.A.A.F. 

2002) (Crawford, C.J., concurring in part and in the result) 

(noting that despite the majority’s holding there is no 

requirement that a staff judge advocate’s recommendation on a 

request for deferment be served on defense counsel); United 

States v. Becker, 53 M.J. 229 (C.A.A.F. 2000) (applying R.C.M. 

707 to sentence rehearings). However, we have recommended the 

executive engage in rulemaking to eliminate appellate 

litigation. See e.g., United States v. Buller, 46 M.J. 467, 469 

n.4 (C.A.A.F. 1997). 

2

 United States v. Lopez, 35 M.J. 35, 39 (C.M.A. 1992) 

(discussing the hierarchical sources of rights in the military); 

see also United States v. Scheffer, 523 U.S. 303, 309-18 (1998) 

(Military Rules of Evidence are binding on the Court of Appeals 

for the Armed Forces unless unconstitutional). 
United States v. Dearing, No. 05-0405/NA 

3

forth by the President. The majority relies on United States v. 

Cardwell, 15 M.J. 124 (C.M.A. 1983), to conclude that the 

defense of self-defense allows an aggressor to “use deadly force 

in his own defense, just as he would be if he withdrew 

completely from combat and was then attacked by his opponent, in 

instances where the adversary escalates the level of conflict.” 

I agree that is the proposition put forth in Cardwell,3 however, 

I note that Cardwell is another occasion where this Court 

expanded the law without the authority to do so. Cardwell, 

decided on March 14, 1983, did not discuss the hierarchy or the 

hornbook rule that this Court is bound by the President’s rule 

unless it is unconstitutional or violates a statute. In 1984, 

the President executed the Manual for Courts-Martial, United 

States (1984 ed.)(MCM). Since 1984, the President has made 

twelve4 changes to the MCM, yet, in spite of the ruling in 

Cardwell, he has never saw fit to modify R.C.M. 916(e)(4) to 

 

3

 In a situation . . . where the accused had entered 

willingly into combat with the expectation that deadly 

force might be employed, he is not allowed to claim 

self-defense. However, where an accused in his 

original attack has not employed deadly force and his 

adversary then escalates the conflict, he is entitled 

to use deadly force in his own defense, just as he 

would be if, after initially attacking, he had 

withdrawn completely from combat and was then attacked 

by his opponent. 

15 M.J. at 126 n.3. 

4

 See MCM, Historical Executive Orders app. 25 at A25-1 to A25-77 

(2005 ed.). 
United States v. Dearing, No. 05-0405/NA 

4

allow for an aggressor to regain his right to self-defense if 

the “victim” or adversary escalates the level of conflict. The 

Cardwell case is not mentioned in the discussion of the rule or 

in the analysis to the rule. Common sense would seem to 

indicate that the President has specifically decided not to 

address or modify the defense of self-defense to allow the 

aggressor to regain the right to self-defense in situations 

other than after a complete withdrawal from the affray. 

R.C.M. 916(e)(4) is not inconsistent with the punitive 

articles in the UCMJ. See Articles 77-134, UCMJ, 10 U.S.C. §§ 

877-934 (2000). Because the military judge’s instructions were 

consistent with R.C.M. 916 as created by the President, I would 

affirm the decision of the United States Navy-Marine Corps Court 

of Criminal Appeals.