## Facts

- Corporal Javier A. Moreno, Jr., U.S. Marine Corps, was tried by general court-martial and convicted of rape, in violation of Article 120, UCMJ.
- The members sentenced Moreno to a dishonorable discharge, six years’ confinement, total forfeitures, and reduction to the lowest enlisted grade; the convening authority approved the sentence.
- A senior member of the panel, LtCol F, had prior involvement and knowledge related to Moreno’s case and the case of a co-accused, and he had a family connection to sexual-assault counseling services through his spouse.
- The defense challenged LtCol F for cause, arguing he was disqualified (including as an “investigating officer” within the meaning of R.C.M. 912(f)(1)(F)) and, at minimum, that his presence created substantial doubt about the court-martial’s fairness and impartiality.
- The military judge denied the challenge for cause, and LtCol F served as panel president.
- After trial, Moreno’s case suffered lengthy posttrial processing delays, including a 925-day period between docketing at the Navy-Marine Corps Court of Criminal Appeals (NMCCA) and completion of briefing, driven in part by repeated defense-requested enlargements due to counsel caseload.
- NMCCA affirmed the findings and sentence in an opinion issued 1,688 days after Moreno’s trial adjourned.
- Moreno sought further review, claiming (among other errors) that the military judge wrongly denied the member challenge and that the posttrial and appellate delay violated due process.
- The United States Court of Appeals for the Armed Forces (C.A.A.F.) granted review on issues addressing member disqualification/appearance of fairness and the claimed denial of the due-process right to timely appellate review.

## Issues

1. Whether LtCol F was an “investigating officer” under R.C.M. 912(f)(1)(F) and therefore should have been disqualified from serving as a panel member.
2. Whether LtCol F’s participation as panel president created substantial doubt as to the legality, fairness, and impartiality of the court-martial such that the challenge for cause should have been granted.
3. Whether the length and reasons for posttrial and appellate delay denied Moreno due process through untimely review and appeal.

## Decision

- C.A.A.F. held the military judge erred in denying the defense challenge for cause against LtCol F because his presence created substantial doubt about the fairness and impartiality of the proceeding.
- The court set aside the findings and sentence and authorized a rehearing.
- On the separate due-process claim, C.A.A.F. held that convicted servicemembers have a due-process right to timely review and appeal of court-martial convictions.
- The court established presumptive benchmarks for identifying facially unreasonable posttrial delay that triggers a full due-process analysis.
- Because Moreno’s conviction was already being set aside on the member-challenge issue, the court addressed the delay question primarily to provide governing standards for future cases rather than to award additional relief in Moreno’s case.

## Legal Principles

- An accused has the right to a panel of members who are qualified and impartial; a member must be excused when the member’s continued service would cause a reasonable observer to harbor substantial doubt about the proceeding’s fairness.
- In ruling on defense challenges for cause, military judges must apply the “liberal grant” policy to protect the appearance and reality of fairness in courts-martial.
- Due process entitles convicted servicemembers to timely posttrial processing and appellate review of courts-martial.
- Facial unreasonableness in posttrial delay is assessed using presumptive time standards that trigger further review, including: (1) more than 120 days from completion of trial to convening authority action, (2) more than 30 days from convening authority action to docketing at the service court, and (3) more than 18 months from docketing to decision by the service Court of Criminal Appeals.
- When facially unreasonable delay exists, courts assess due-process violations using the Barker v. Wingo factors: length of delay, reasons for delay, assertion of the right, and prejudice.
- Prejudice from appellate delay may include oppressive incarceration pending appeal, anxiety and concern, and impairment of the ability to present issues on appeal or to defend at a rehearing; delay attributable to defense requests generally weighs against finding a due-process violation.
- Even absent a showing of traditional prejudice, exceptionally excessive delay may warrant relief where tolerating it would harm public confidence in the fairness and integrity of the military justice process.

## Conclusion

United States v. Moreno held that the military judge improperly denied a defense challenge for cause where a panel member’s prior involvement and connections created substantial doubt about the court-martial’s fairness, requiring reversal and authorizing a rehearing. The decision also recognized a due-process right to timely posttrial and appellate review and announced presumptive time benchmarks that, when exceeded, trigger a full constitutional analysis of delay using Barker-type factors, shaping how military appellate courts evaluate and remedy posttrial delay claims.


United States v. Moreno, 63 M.J. 129 (2006)