US v. Arriaga) that dealt with 2 hot-button items for the Court--lesser-included offenses and post-trial appellate delay. Judge Erdmann wrote for the majority, and Judge Stucky wrote a partial concurrence/partial dissent (dissenting in the result) for himself and Judge Ryan.
The same military judge (Col Tom Cumbie) from the last CAAF opinion (Beaty) was the trial judge for this case. Arriaga lost on the argument that Housebreaking isn't an LIO of Burglary, but he won on the post-trial delay issue. CAAF sent the case back to the Air Force Court for action in conformance with its opinion.
On the LIO issue, Arriaga argued that an element of Housebreaking was broader in scope than that of Burglary, in that Housebreaking requires an intent to commit any offense within the building, while Burglary is limited to an intent to commit only selected crimes. The Court applied the law to the charged specification in this case and to the facts presented at trial and held that the theoretical variance in the scope of the elements didn't prevent Housebreaking from being an LIO of Burglary.
On the appellate delay issue, Arriaga asserted that the 243 day lapse between completion of his court-martial and the date the convening authority took action on his case prejudiced him, particularly given the Air Force Court's halving his confinement and reducing his dishonorable discharge to a bad-conduct discharge. Arriaga served nearly 2 months longer in confinement than he would have served, had the appellate processing been more expedient.
The length of the delay, alone, was sufficient, under Moreno (63 MJ 129), to presume unreasonable delay. When the Court examined the government's explanations for the delay, the reasoning boiled down to "personnel issues" that could plague any legal office--nothing terribly novel or extraordinary. As we've known since at least 2003, CAAF isn't too keen on "personnel issue" appellate delay excuses. AFCCA now gets to decide what remedy is appropriate for Arriaga's additional days spent in confinement due to the delay.
The dissenters agreed with the LIO analysis, but they found no prejudice from the appellate review delay. On the delay issue, the dissenters rejected the 120-day presumption-of-prejudice rule from Moreno and cited the complexity of the case and this particular clemency process as justifications for the delay. The dissent also points out the 2 30-day enlargements of time the Defense sought for filing its AFCCA brief.