UNITED STATES, Appellee 

v. 

Jonathan E. LEE, Captain 

U.S. Marine Corps, Appellant 

No. 07-0725 

Crim. App. No. 200600543 

United States Court of Appeals for the Armed Forces 

Argued December 17, 2013 

Decided March 7, 2014 

RYAN, J., delivered the opinion of the Court, in which BAKER, 

C.J., and ERDMANN, STUCKY, and OHLSON, JJ., joined. 

Counsel 

For Appellant: Captain Jason R. Wareham, USMC (argued); Colonel 

John G. Baker, USMC, and Eugene R. Fidell, Esq. (on brief). 

For Appellee: Major Paul M. Ervasti, USMC (argued); Brian K. 

Keller, Esq. (on brief); Lieutenant Commander Keith B. Lofland, 

JAGC, USN. 

Military Judges: Steven F. Day, Nicole K. Hudspeth, and Jeffrey 

M. Sankey 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Lee, 07-0725/MC

2

Judge RYAN delivered the opinion of the Court. 

On September 24, 2013, this Court granted review of the 

following issue: 

WHETHER THE [NMCCA] ERRED IN FINDING NO DUE PROCESS 

VIOLATION WHERE 2,500 DAYS ELAPSED BETWEEN SENTENCING 

AND REMOVAL OF APPELLANT’S NAME FROM THE TEXAS SEX 

OFFENDER REGISTRY. 

In many senses this case casts the military justice system 

in a far from favorable light. By the time Appellant’s courtmartial concluded on May 4, 2005, Appellant’s military counsel 

was prosecuting other cases under the supervision of the 

prosecutor in Appellant’s own court-martial. Most of the posttrial appellate delay now claimed -- all but 141 days –- stemmed 

from appeals and fact-finding hearings1

 related to this 

situation. 

The fact remains, however, that at the end of the appellate 

process for the initial court-martial, the United States NavyMarine Corps Court of Criminal Appeals (NMCCA) set aside the 

findings and sentence, and authorized a rehearing for all 

charges and specifications that were not already dismissed, as a 

“‘needed prophylaxis’” to protect the rights to counsel and due 

process. See United States v. Lee, 70 M.J. 535, 541–42 (N–M. 

Ct. Crim. App. 2011) (citation omitted). 

																																																							

1

 These fact-finding hearings were held in accordance with United 

States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). 
United States v. Lee, 07-0725/MC

3

In turn, and as relevant to our decision, rather than 

proceed to a rehearing on the remaining specifications, 

Appellant entered into a pretrial agreement to plead guilty to 

two reformulated specifications of conduct unbecoming an officer 

and a gentleman, in violation of Article 133, Uniform Code of 

Military Justice (UCMJ), 10 U.S.C. § 933 (2012). Thereafter, 

and almost immediately after the military judge denied his 

motion at the rehearing for appropriate relief for post-trial 

appellate delay arising from the earlier trial, Appellant 

unconditionally pleaded guilty to two offenses under Article 

133, UCMJ. Under these circumstances, he waived any speedy 

appellate review claim relating to the post-trial period 

preceding the rehearing, including any prejudice from the 

additional time spent on the Texas Public Sex Offender Registry 

prior to the waiver. See United States v. Bradley, 68 M.J. 279, 

281 (C.A.A.F. 2010) (“An unconditional plea of guilty waives all 

nonjurisdictional defects at earlier stages of the 

proceedings.”); United States v. Joseph, 11 M.J. 333, 335 

(C.M.A. 1981). 

Moreover, applying the four-factor analysis of United 

States v. Moreno, 63 M.J. 129, 135 (C.A.A.F. 2006), the 

remaining 141-day period of review between the sentencing 

portion of Appellant’s rehearing and the convening authority’s 

action did not amount to a due process violation. 
United States v. Lee, 07-0725/MC

4

The decision of the NMCCA is affirmed. 

I. FACTS 

Between January 9, 2004, and January 12, 2004, Appellant, a 

captain, attended a Professional Military Education course in 

Londonderry, Ireland. Over the course of the weekend, Appellant 

engaged in nonconsensual sexual conduct with five different 

enlisted Marines. 

At the court-martial for the charges stemming from this 

conduct, Appellant was represented by civilian counsel –- acting 

as lead counsel –- and detailed military counsel. Prior to the 

conclusion of Appellant’s court-martial, his military counsel 

was transferred to duties in the prosecution office. By the 

time Appellant’s court-martial concluded on May 4, 2005, 

Appellant’s military counsel was prosecuting other cases under 

the supervision of the prosecutor in Appellant’s court-martial.2

 

While civilian and military counsel generally informed Appellant 

that his military counsel’s new prosecution duties might create 

a potential conflict of interest, they did not inform Appellant 

that his military counsel would be directly supervised by the 

prosecutor in his court-martial. Appellant did not learn of 

this fact until he was already serving his term of confinement. 

																																																							

2

 As Appellant acknowledged in his brief, the U.S. Marine Corps 

has implemented a number of rule changes to avoid this worrisome 

practice in the future. See Brief for Appellant at 29 n.85, 

United States v. Lee, No. 07-0725 (C.A.A.F. Oct. 24, 2013). 
United States v. Lee, 07-0725/MC

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On May 4, 2005, following mixed pleas, a military judge 

sitting alone as a general court-martial convicted Appellant of 

one specification of conduct unbecoming an officer and a 

gentleman, in violation of Article 133, UCMJ, three 

specifications of burglary, in violation of Article 129, UCMJ, 

10 U.S.C. § 929 (2000), three specifications of fraternization, 

in violation of Article 134, UCMJ, 10 U.S.C. § 934 (2000), and 

five specifications of indecent assault, also in violation of 

Article 134, UCMJ. The adjudged sentence provided for 

confinement for a period of three years, forfeiture of all pay 

and allowances, and a dismissal. The convening authority 

approved the adjudged sentence and ordered all but the dismissal 

to be executed. 

Once convicted, Appellant served his term of confinement -- 

less good time and earned confinement credit -- from May 4, 

2005, until July 12, 2007. Upon release from confinement, 

Appellant’s indecent assault convictions required notifying 

state and local law enforcement agencies for purposes of sex 

offender registration. On July 20, 2007, he was entered on the 

Texas Public Sex Offender Registry. 

Appellant sought relief before the NMCCA on several 

grounds, including “multiplicious” charges and sufficiency of 

the evidence. United States v. Lee, No. NMCCA 200600543, 2007 

CCA LEXIS 233, at *2, 2007 WL 1890683, at *1 (N-M. Ct. Crim. 
United States v. Lee, 07-0725/MC

6

App. June 26, 2007) (unpublished). Appellant also argued that 

his trial defense counsel failed to disclose a conflict of 

interest, namely that he was acting as a prosecutor in another 

case while representing Appellant. Id. at *2, 2007 WL 1890683, 

at *1. On June 26, 2007, the NMCCA dismissed the specification 

of conduct unbecoming an officer and a gentleman as 

“multiplicious” of the burglary and indecent assault charges, 

and one of the indecent assault specifications as factually 

insufficient. Id. at *2–*3, 2007 WL 1890683, at *1. It found, 

however, that there was no actual conflict of interest that 

adversely affected counsel’s performance. Id. at *17, 2007 WL 

1890683, at *7. After reassessing the sentence, the NMCCA 

affirmed the sentence as approved by the convening authority. 

Id. at *24, 2007 WL 1890683, at *9. 

This Court then granted review to determine whether a 

conflict of interest existed that resulted in an uninformed 

selection of counsel. United States v. Lee, 66 M.J. 387, 388 

(C.A.A.F. 2008). On June 13, 2008, unable to resolve the issue 

based on the record as then developed, this Court remanded the 

case for a fact-finding hearing pursuant to DuBay. Id. at 390. 

On July 28, 2011, after three separate DuBay hearings,3 the 

NMCCA set aside the findings and sentence and authorized a 

																																																							

3

 See Lee, 70 M.J. at 536 (explaining the reasons for the 

different hearings). 
United States v. Lee, 07-0725/MC

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rehearing for all charges and specifications that were not 

already dismissed. Lee, 70 M.J. at 542. Although the NMCCA 

found no prejudicial impact from any ineffectiveness by counsel, 

it explained that its result was a “‘needed prophylaxis’” to 

protect the rights to counsel and due process. Id. at 541 

(citation omitted). 

Due to the substantial passage of time since the charged 

conduct in early 2005, by the time the NMCCA authorized 

Appellant’s rehearing in 2011, several witnesses had either 

forgotten important details of the events or requested not to 

testify entirely. As a result, Appellant negotiated a pretrial 

agreement with the convening authority to plead guilty to two 

reformulated specifications of conduct unbecoming an officer and 

a gentleman, in violation of Article 133, UCMJ, in exchange for 

the withdrawal of all other charges and specifications. Nowhere 

in this agreement did Appellant condition his pleas on reserving 

the right to review of any pretrial motions pursuant to Rule for 

Courts-Martial (R.C.M.) 910(a)(2). The convening authority 

accepted Appellant’s offer to plead guilty and signed the 

pretrial agreement on March 1, 2012. 

Subsequently, on March 7, 2012, Appellant filed a motion 

for appropriate relief on the grounds of unreasonable post-trial 

delay. The military judge denied this motion on March 12, 2012, 

noting the “constant motion” during the appellate process and a 
United States v. Lee, 07-0725/MC

8

general lack of prejudice. 

The same day, the military judge reviewed the provisions of 

the pretrial agreement with Appellant and accepted his guilty 

pleas to the two specifications under Article 133, UCMJ. The 

adjudged sentence provided for confinement for a period of nine 

months, forfeiture of all pay and allowances for nine months, 

and a reprimand.4

 On August 1, 2012, 141 days after resentencing 

-- including twenty days for a defense-requested extension -- 

the convening authority disapproved the reprimand pursuant to 

the pretrial agreement but approved the remainder of the 

sentence and ordered it executed. 

II. NMCCA DECISION 

On appeal under Article 66, UCMJ, 10 U.S.C. § 866 (2012), 

Appellant asserted errors relating to post-trial delay and 

confinement credit. On February 21, 2013, the NMCCA found no 

due process violation and approved the findings and sentence. 

United States v. Lee, 72 M.J. 581, 585 (N-M. Ct. Crim. App. 

2013). It explained its result as follows: 

The procedural history of this case and fact that we 

are reviewing this case following a rehearing readily 

																																																							

4

 Appellant received 799 days of confinement credit pursuant to 

United States v. Allen, 17 M.J. 126 (C.M.A. 1984), and 123 days 

pursuant to United States v. Pierce, 27 M.J. 367 (C.M.A. 1989). 

The Pierce credit was awarded for the Government’s failure to 

act promptly to remove Appellant from the Texas Public Sex 

Offender Registry after his indecent assault convictions were 

set aside by the NMCCA on July 28, 2011. 
United States v. Lee, 07-0725/MC

9

dissuades us from adopting the appellant’s position. 

Having been afforded appropriate and continuing due 

process, involving the extensive litigation of complex 

issues and the generation of a record on appeal that 

dwarfs the original record of trial, resulting in 

meaningful relief from error, we are being asked to 

characterize the timeline necessitated by the 

affording of due process as a due process violation. 

We decline to so hold and likewise decline to grant 

relief per our authority under Article 66(c). 

Id. at 584. 

III. DISCUSSION 

Before we reach the question whether Appellant’s due 

process rights were violated in light of the substantial 

appellate delay in his case, the granted issue, we must first 

determine whether Appellant waived review of this delay. We 

conclude that he waived review of all but the 141 days of delay 

between the sentencing portion of the rehearing and the 

convening authority’s action. 

A. 

We have long recognized the general proposition that a plea 

of guilty “waives nonjurisdictional errors that occurred in the 

earlier stages of the proceedings.” Joseph, 11 M.J. at 335; see 

also United States v. Lopez, 20 C.M.A. 76, 77–78, 42 C.M.R. 268, 

269–70 (1970). In Bradley, we reaffirmed this general rule, but 

observed that R.C.M. 910(a)(2) creates an exception where an 

accused enters into a conditional guilty plea. 68 M.J. at 281–

82. However, because “there is no constitutional right to enter 
United States v. Lee, 07-0725/MC

10

such a plea . . . it follows that compliance with the regulation 

is the sole means of entering a conditional plea and preserving 

the issue on appeal.” Id. 

There is no evidence in the record that Appellant 

requested, or that either the Government or the military judge 

consented to, the entry of a conditional plea; therefore, the 

exception created by reference to R.C.M. 910(a)(2) does not 

apply here. See R.C.M. 910(a)(2) (requiring “the approval of 

the military judge and the consent of the Government”). 

Moreover, Appellant’s guilty plea occurred after a motion for 

relief for the same post-trial appellate delay he complains of 

here was fully briefed, argued, and denied. In fact, it was 

immediately following the military judge’s ruling, and without 

any attempt to preserve the appellate delay issue for appeal, 

that Appellant pleaded guilty to the two Article 133, UCMJ, 

specifications. 

Nevertheless, Appellant argues that guilty plea waiver 

should not apply where, as here, he alleged a violation of his 

right to due process under the Fifth Amendment based on 

appellate delay occurring prior to his unconditional guilty 

pleas at a rehearing. Reply Brief for Appellant at 2, United 

States v. Lee, No. 07-0725 (C.A.A.F. Dec. 5, 2013). Our 

precedent is to the contrary. 
United States v. Lee, 07-0725/MC

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“While the waiver doctrine is not without limits, those 

limits are narrow and relate to situations in which, on its 

face, the prosecution may not constitutionally be maintained.” 

Bradley, 68 M.J. at 282 (citing United States v. Broce, 488 U.S. 

563, 574–76 (1989) (double jeopardy); Menna v. New York, 423 

U.S. 61, 61–63 (1975) (double jeopardy)). Such limits do not 

arise where an appellant merely complains of “‘antecedent 

constitutional violations’” or a “‘deprivation of constitutional 

rights that occurred prior to the entry of the guilty plea,’” 

Blackledge v. Perry, 417 U.S. 21, 30 (1974) (citation omitted), 

rather they apply “where on the face of the record the court had 

no power to enter the conviction or impose the sentence.” 

Broce, 488 U.S. at 569; see also United States v. Schweitzer, 68 

M.J. 133, 136 (C.A.A.F. 2009) (identifying limitations 

recognized by this Court to the guilty-plea-waiver doctrine 

where specifications are facially duplicative or fail to state 

an offense). That is not this case. 

Nor does this case fall within the narrow limitation for 

litigated speedy trial motions alleging a violation of Article 

10, UCMJ, 10 U.S.C. § 810 (2012), recognized in United States v. 

Mizgala, 61 M.J. 122, 124 (C.A.A.F. 2005), and reaffirmed in 

United States v. Tippit, 65 M.J. 69, 75 (C.A.A.F. 2007). See

Article 10, UCMJ (providing that “[w]hen any person subject to 

this chapter is placed in arrest or confinement prior to trial, 
United States v. Lee, 07-0725/MC

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immediate steps shall be taken to inform him of the specific 

wrong of which he is accused and to try him or to dismiss the 

charges and release him”). Where an Article 10, UCMJ, motion is 

litigated at trial, that issue is preserved for appeal despite 

an unconditional guilty plea. Mizgala, 61 M.J. at 127; Tippit, 

65 M.J. at 75. This narrow exception is based on the “‘unique 

nature of the protections’ set forth in Article 10.” Tippit at 

75 (quoting Mizgala, 61 M.J. at 127); see also Mizgala, 61 M.J. 

at 124. Neither case suggested that the exception to the waiver 

doctrine was available for motions based on delay in violation 

of any other rule, statute, or constitutional provision. 

Indeed, they held precisely to the contrary. Mizgala, 61 M.J. 

at 124–25 (rejecting comparisons of Article 10, UCMJ, to R.C.M. 

707, the Sixth Amendment, and the Speedy Trial Act); Tippit, 65 

M.J. at 75 (analyzing only Article 10, UCMJ, waiver because 

“Appellant’s unconditional guilty plea waived his speedy trial 

rights under R.C.M. 707 and the Sixth Amendment”). 

Appellant does not claim that the court-martial lacked 

jurisdiction over the offenses, did not litigate a motion under 

Article 10, UCMJ, and at no point has Appellant challenged the 

“voluntary and intelligent character” of his pleas. See Broce, 

488 U.S. at 574. Under the circumstances of this case, 

Appellant waived review of the appellate delay arising prior to 

his unconditional guilty pleas. 
United States v. Lee, 07-0725/MC

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B. 

We are nonetheless left to consider whether the remaining 

delay -- the 141-day period between Appellant’s sentence 

rehearing and action by the convening authority -- amounted to a 

due process violation. In doing so, we apply the four factors 

developed in Moreno: “(1) the length of the delay; (2) the 

reasons for the delay; (3) the appellant’s assertion of the 

right to timely review and appeal; and (4) prejudice.” 63 M.J. 

at 135 (citations omitted). We conclude that this period of 

delay did not violate Appellant’s due process right to speedy 

appellate review. 

The 141-day period between sentencing and action by the 

convening authority was facially unreasonable. Id. at 142 

(creating a presumption of unreasonable delay where the 

convening authority does not act within 120 days of the 

completion of trial). However, twenty of those days were the 

result of Appellant’s request for additional time to submit 

clemency matters, and clemency was awarded. Furthermore, 

Appellant did not demand speedy review during this period. Most 

importantly, because Appellant’s name had already been removed 

from the Texas Public Sex Offender Registry before this 141-day 

period, he has not identified any particularized prejudice 

resulting from this delay. 
United States v. Lee, 07-0725/MC

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Accordingly, we find no violation of Appellant’s due 

process right to speedy appellate review for the 141-day period 

between the sentencing portion of the rehearing and the 

convening authority’s action. 

IV. DECISION 

The decision of the United States Navy-Marine Corps Court 

of Criminal Appeals is affirmed.