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10. Speedy Trial

CHAPTER 10

Speedy Trial

 

  1.       References

  2.       General

  3.       RCM 707: The 120 Day Rule

  4.       Article 10, UCMJ

  5.       The Sixth Amendment Right to Speedy Trial

  6.       The Fifth Amendment Right to Due Process

  7.       Litigating Speedy Trial Issues

 

I.  References 

A.  5th Amendment

B.   6th Amendment

C.   Article 10, UCMJ

D.  Rule for Courts-Martial 707

II. GENERAL

A.  Note that there are four sources of speedy trial protections that may apply in the course of a court-martial, and each of these sources have their own triggers (i.e., what circumstance in the case makes that protection applicable) and tests to determine if the accused’s speedy trial rights have been violated.  One or more of these will be applicable in any given court-martial, depending on the circumstances of the case.  United States v. Wilder, 75 M.J. 135 (C.A.A.F. 2016).

B.   In general, RCM 707, the 5th Amendment, and the 6th Amendment speedy trial protections will apply in all cases in which charges are preferred.  Article 10 speedy trial protections will only apply in cases in which the accused is placed in arrest or pretrial confinement. 

C.   Practitioners must understand the triggers and tests for all of these protections as courts will apply each applicable test to ensure that an accused’s speedy trial rights are protected.  Although practitioners usually think of the RCM 707 120-day clock when analyzing speedy trial concerns, RCM 707 is the only source of speedy trial protections that has a set number of days.  The other sources of speedy trial protections have tests not defined by a set number of days, and therefore can be more difficult to analyze.

III.    RCM 707: The 120 Day Rule

A.  The Rule.  “The accused shall be brought to trial within 120 days after the earlier of:  (1) Preferral of charges; (2) The imposition of restraint under R.C.M. 304(a)(2)-(4) [restriction, arrest, confinement]; or (3) Entry on active duty under R.C.M. 204.”  RCM 707(a).  For the purposes of RCM 707, the accused is brought to trial when he/she is arraigned; the date of the triggering event does not count towards the 120 days, but the date of arraignment does count.  RCM 707(b)(1).  Therefore, the government must ensure the accused is arraigned within 120 days after one of the triggering events listed in the rule.

1.“Conditions on liberty” (a moral restraint under RCM 304(a)(1)) is not a type of pretrial restraint that triggers RCM 707.

2.“Specified Limits”:  An individual must be required to remain within specified limits to constitute pretrial restriction.  See RCM 304(a)(2)-(3).

a.   United States v. Wilkinson, 27 M.J. 645 (A.C.M.R. 1988), petition denied, 28 M.J. 230 (C.M.A. 1989):  Denial of off-post pass that left the accused free access to the entire installation with all its support and recreational facilities was at most a condition on liberty that did not affect speedy trial clock.  “[The lack of pass privileges] will, in the usual case, have no impact on rules relating to speedy trial.” 

b.   But see United States v. Wagner, 39 M.J. 832 (A.C.M.R. 1994):  In dicta, court questioned Wilkinson’s application to married Soldier living off post, especially in a foreign country.  Court should consider extent and duration of disruption of spousal and parental responsibilities.

c.   See also United States v. Melvin, 2009 WL 613883 (A.F. Ct. Crim. App. 2009):  Maj. Melvin was an Air Force ROTC instructor.  He was charged with providing underage cadets in his detachment with alcohol, had sexual intercourse with a female cadet, and encouraged cadets to lie to investigating officers.  He was adjudged a dismissal and six months confinement.  One issue on appeal was the trial judge’s decision to start the 120 day clock at preferral of charges.  Maj. Melvin asserted it should have started when he received a no contact order with the cadets and was sent TDY away from the university area and more significantly, his family that lived there.  Maj. Melvin’s contended that because he was forced away from his family and could not return home without taking leave, this equated to restriction and pretrial restraint under RCM 304(a)(2)-(3).  Alternatively, Maj. Melvin argued that his extension on active duty was a second triggering date before preferral.  The appellate court agreed with the trial judge that neither of these positions contained merit.

3.   Administrative restraint:  Administrative restraint imposed under RCM 304(h) “for operational or other military purposes independent of military justice, including administrative hold or medical reasons” is not pretrial restraint under RCM 304(a) and does not start the speedy trial clock.

a.   “Primary Purpose” Test: If the primary purpose of restraint is administrative and not for military justice, the speedy trial clock is not triggered.

b.   United States v. Bradford, 25 M.J. 181 (C.M.A. 1987):  Denial of sailor’s port liberty while sailor was a suspect of offense found to be “administrative restraint” under RCM 304(h).  “[We] believe the test is . . . the primary purpose. . . .”  “Where the evidence supports a conclusion that the primary purpose of the command . . . is related to an upcoming court-martial, R.C.M. 707 applies.”

4.   Multiple preferrals:  When charges are preferred at different times, the 120-day clock begins as of the date of preferral, imposition of restraint, or entry on active duty, of each charge.  RCM 707(b)(2); see United States v. Robinson, 26 M.J. 954 (A.C.M.R. 1988) aff’d, 28 M.J. 481 (C.M.A. 1989) (“We hold that, in order to commence the speedy trial clock, the imposition of restraint . . . must be ‘in connection with’ the specification being challenged.”).

5.   Accounting for days:  Include the day of arraignment in the 120-day count; do not include the day of preferral, imposition of restraint, or entry on active duty.  RCM 707(b)(1). 

6.   Termination:  Accused is “brought to trial” for purposes of RCM 707 at arraignment.  RCM 707(b)(1); see United States v. Doty, 51 M.J. 464 (C.A.A.F. 1999) (CAAF holds that arraignment at day 119 was not a “sham” to toll the speedy trial clock).  For sentence rehearings, the clock stops when the accused is first brought to the “bar” for resentencing, typically at the initial UCMJ art. 39(a) session.  United States v. Becker, 53 M.J. 229, 232 (A.F. Ct. Crim. App. 2000); United States v. Gammon, 2009 CCA LEXIS 108 (N-M. Ct. Crim. App. 2009) (an unpublished case where, based on the dispersal of trial participants, the appellate court approved of the judge’s decision to delay the arraignment until trial because of the “unjustifiable expense” in bringing everyone together and excluding the period of time from when the arraignment could have occurred but for the cost factor until when it actually did happen).

B.   Restarting the clock at zero.  RCM 707(b)(3).

1.   First restart provision.  If charges are dismissed or a mistrial is granted, 120-day speedy trial clock is reset to begin on:  date of dismissal/mistrial in cases where accused remains in pretrial restraint under RCM 304(a)(2)-(4) at the time of dismissal/mistrial; or when accused is not under pretrial restraint at time of dismissal/mistrial, on the earliest of the date on which charges are preferred anew, the date on which restraint is imposed under RCM 304(a)(2)-(4), or the date of mistrial in cases in which charges are not dismissed or preferred anew. RCM 707(b)(3)(A).

a.   Dismissal (RCM 401) or withdrawal (RCM 604)?

1)   General Rule:  Withdrawal does not reset or toll speedy trial clock. United States v. Weatherspoon, 39 M.J. 762 (A.C.M.R. 1994).  Dismissal of charges does.  RCM 707(b)(3)(A); United States v. Bolado, 34 M.J. 732 (N.M.C.M.R. 1991); aff’d, 36 M.J. 2 (C.M.A. 1992) (A commander can dismiss charges even if there is an intent to re-institute charges at a later date.  Convening authority ordered charges dismissed since two NIS witnesses were deployed on Operation Desert Shield/Storm for an uncertain time period.  Charges lined through, dismissal document executed, accused informed and allowed to go on leave, although not allowed to work in MOS.  Charges were repreferred 9 months later following return of the witnesses); see also United States v. Tippit, 65 M.J. 69 (C.A.A.F. 2007) (Upon the SJA’s advice the SPCMCA signed a withdrawal of charges (which were not referred).  The Court honored the SPCMCA intent to dismiss the charges despite the misnomer and found no violation of RCM 707).

2)   United States v. Young, 61 M.J. 501 (Army Ct. Crim. App. 2005): Young deserted his unit after he was found guilty of various offenses but prior to sentencing.  The court sentenced him, in absentia, to confinement for life.  After his initial trial, his command preferred a new charge for desertion in 1995.  Young was apprehended six months later and began serving his life sentence.  The desertion charge was not acted upon until the Chief of Staff at the USDB signed a DA Form 4833 stating, “the [prior] command and the USDB have declined prosecution of the desertion offense.”  The command decided to go forward on the desertion charge when the sentence from Young’s initial trial was set aside on appeal.  Believing the initial desertion charge had been dismissed, the command preferred the desertion charge anew in 1999.  Young moved the trial court to dismiss the desertion charge because there had been no dismissal of the original desertion charge and therefore the speedy trial clock had run continuously since 1995.  The trial court disagreed and found the DA Form 4833 equaled a dismissal.  ACCA reversed the case finding that the government had violated Young’s right to a speedy trial.  The court noted that the DA Form 4833 was NOT a dismissal but rather a decision to take “no action.”    

b.   Subterfuge:  commands cannot dismiss and then reprefer charges for an improper purpose or as a subterfuge to avoid committing a 120-day speedy trial clock violation; in such cases, the 120-day clock will continue to run.  RCM 707(b)(3)(A)(iii); United States v. Hendrix, 77 M.J. 454 (C.A.A.F. 2018).

1)   United States v. Leahr, 73 M.J. 364 (C.A.A.F. 2014):  No subterfuge where dismissal results from “a legitimate command reason which does not ‘unfairly prejudice’ an accused.”

2)   United States v. Robison, WL 6135093 (Army Ct. Crim. App. 2011):  Dismissal of a DFR charge sheet 93 days after an Accused's return to military control was not a subterfuge and therefore not a violation of the Accused's right to a speedy trial under RCM 707.  “A convening authority's dismissal of a charge is only a subterfuge when the sole purpose of the dismissal is to avoid the running of the 120–day speedy trial clock.”  The government preferred a new desertion charge with newly acquired information in an additional element.

3)   United States v. Robinson, 47 M.J. 506 (N-M Ct. Crim. App. 1997):  Dismissal of charges on day 115 and repreferral of substantially identical charges one week later, without any significant change in Accused’s status held to be a subterfuge to avoid the 120-day speedy trial clock. Distinguishes Bolado, which held convening authority need not explain reasons for dismissal.  Any other solution would allow CA to routinely violate spirit of RCM 707.

4)   United States v. Hendrix, 77 M.J. 454 (C.A.A.F. 2018):  Court rejects trial judge’s conclusion that a convening authority’s dismissal of charges with intent to reprefer implies subterfuge or an improper reason where there is no indication that the government was engaged in deception or dismissed with the intent of avoiding the 120-day clock.  Dismissing charges due to a victim who declines to participate in the prosecution, and then repreferring the charges after the victim changes her mind is not a subterfuge.   

5)   Factors courts will consider to decide if subterfuge:  convening authority intent, notice and documentation of action, restoration of rights and privileges of accused, prejudice to accused, amended or additional charges.  United States v. Anderson, 50 M.J. 447 (C.A.A.F. 1999) (CAAF finds no subterfuge under the facts of the case and declares, contrary to the Government’s concession, that the speedy trial clock was restarted on the date of dismissal).

2.   Second restart provision.  If the accused is released from pretrial restraint for a significant period, the 120-day clock shall run from the earliest of the date on which charges are preferred, restraint is re-instituted, or entry on active duty.  RCM 707(b)(3)(B).

a.   What is a significant period?

1)   United States v. Hulsey, 21 M.J. 717 (A.F.C.M.R. 1985), petition denied, 22 M.J. 353 (C.M.A. 1986): 5 day release from pretrial restraint held a “significant period” and not a “subterfuge designed to circumvent R.C.M. 707;” clock restarted with reinstitution of restraint. 

2)   United States v. Miller, 26 M.J. 959 (A.C.M.R. 1988), petition denied, 28 M.J. 164 (C.M.A. 1989):  5 day release from pretrial restriction tantamount to confinement held to be a “significant period” even though accused was held in administrative restraint in the hospital for the 5 days.  Factors considered by the court:  (1) hospitalization for suicide attempt; (2) hospital, not command, imposed the administrative restraint; and (3) no showing of improper gamesmanship.

3)   United States v. Campbell, 32 M.J. 564 (A.C.M.R. 1991):  Thirteen day period of restriction imposed as punishment under Article 15 was a “significant period” of “release” from ongoing restriction that restarted the speedy trial clock.  Article 15 was for offenses that were unrelated to the court-martial charges and was not a subterfuge to avoid speedy trial issues.

4)   United States v. Reynolds, 36 M.J. 1128 (A.C.M.R. 1993):  19 day period of conditions on liberty between release from 5 weeks of restriction and preferral of charges was a significant period.  Speedy trial clock commenced running upon preferral.

b.   Note:  Time between release from pretrial restraint and preferral of charges need not be a “significant period” to stop the speedy trial clock if restraint is not re-imposed.  United States v. Ruffin, 48 M.J. 211 (C.A.A.F. 1998): Charges preferred one day after two month restriction was lifted and restriction was never re-imposed.  The requirement to wait a “significant period” of time only applies to cases involving re-imposition of restraint; it does not require the government to wait a significant period before preferring charges once released from confinement.  Purpose of the rule is to avoid sham releases to stop and start the speedy trial clock.  Here, because restriction was never re-imposed, release was for a “significant period” which restarted the speedy trial clock at preferral.

3.   Third restart provision.  The filing of a notice of government appeal under RCM 908 resets 120-day clock for all charges that did not go forward (i.e., were stayed) nor severed to the date of notice to the parties that the U.S. elects not to appeal (RCM 908(b)(8)) or notice to the parties of final decision on the appeal (RCM 908(c)(3)), unless it is determined that the appeal was filed solely for the purpose of delay with knowledge that it was frivolous and without merit.  RCM 707(b)(3)(C).

4.Fourth restart provision.  120-day clock for rehearings ordered or authorized by an appellate court begin on date “responsible convening authority receives the record of trial and the opinion authorizing or directing a rehearing.”  RCM 707(b)(3)(D); see United States v. Becker, 53 M.J. 229 (C.A.A.F. 2000) (applying RCM 707 timing requirements to a sentence rehearing but finding that remedy of dismissal of charges too severe).

5.Fifth restart provision.  Return of accused from the custody of the Attorney General for hospitalization due to lack of capacity to stand trial resets 120-day clock as of the date of return.  RCM 707(b)(3)(E).

C.   Excludable Delays.  RCM 707(c).  “All periods of time during which appellate courts have issued stays in the proceedings, or the accused is absent without authority, or the accused is hospitalized due to incompetence, or is otherwise in the custody of the Attorney General, shall be excluded when determining whether the period in subsection (a) of this rule has run.  All other pretrial delays approved by a military judge or the convening authority shall be similarly excluded.”

1.   Approving authorities for excludable delay:  Convening Authority (before referral) or the Military Judge (after referral) can exclude delay from the 120-day speedy trial clock.  RCM 707(c)(1).  The discussion following RCM 707(c)(1) indicates the CA's authority can be delegated to the Article 32 Preliminary Hearing Officer (PHO). 

a.   United States v. Lazauskas, 62 M.J. 39 (C.A.A.F. 2005):  Lazauskas made a motion to dismiss the charges at his arraignment on the basis that the government had not brought him to trial within 120 days in accordance with RCM 707.  The military judge denied the motion at trial.  The AFCCA affirmed.  CAAF affirmed as well.  At issue were two delays in the proceedings totaling 11 days.  The first delay was six days in order to secure witnesses for the Article 32.  The CAAF held this time was excludable because the IO may grant reasonable delay requests (excludable in accordance with RCM 707(c)) if the convening authority had properly delegated delay authority.  Furthermore, the delays are excludable unless there was an abuse of discretion by the person who granted the delay.  The second delay was the five day statutory waiting period in accordance with Article 35, UCMJ.  The CAAF held that Article 35 provides a shield so that the accused is not brought to trial too quickly.  Therefore, Article 35 may not be used as a sword for the accused to attack the government for not bringing him to trial sooner.  

b.   Pretrial delays should not be granted ex parte, and the decision granting the delay should be reduced to writing where practicable.  RCM 707(c)(1) discussion.

2.   Period between referral and arraignment:  The U.S. Army Trial Judiciary’s Rules of Practice Before Army Courts-Martial states that “Any period of delay from the judge’s receipt of the referred charges until arraignment is considered pretrial delay approved by the judge per RCM 707(c), unless the judge specifies to the contrary.”  Rule 1.1. 

3.   Attribution of delay period:  United States v. McKnight, 30 M.J. 205 (C.M.A. 1990) (Defense is not entitled to request a delay until a day certain and then insist the government proceed on that very day.  Defense must accommodate government’s scheduling needs and remains accountable for reasonable delays occasioned by initial request); United States v. Torres, 2014 CCA Lexis 180 (Army Ct. Crim. App. 2014) (Court found that SPCMCA acted properly in attributing 28-day delay to Defense while their IMC request was pending).

4.   Approved delays subject to review on two grounds:

a.   Abuse of discretion:  “Granting a continuance is within the sound discretion of the military judge, and a denial will be reversed only for an abuse of discretion.”  United States v. Sharp, 38 M.J. 33, 37 (C.M.A. 1993).

b.   Reasonableness of the period of delay:  “Reasons to grant a delay might, for example, include the need for: time to enable counsel to prepare for trial in complex cases; time to allow examination into the mental capacity of the accused; time to process a member of the reserve component to active duty for disciplinary action; time to complete other proceedings related to the case; time requested by the defense; time to secure the availability of the accused, substantial witnesses, or other evidence; time to obtain appropriate security clearances for access to classified information or time to declassify evidence; or additional time for other good cause.”  RCM 707(c)(1) discussion.

5.   Circumstances not requiring pre-approved delay:

a.   United States v. Dies, 45 M.J. 376 (C.A.A.F. 1996):  Accused’s unauthorized absence is automatically excluded from government accountability even though government never secured a delay from competent authority to cover time.  By his voluntary absence, an accused “waives” his speedy trial right as to that interim period.

b.   United States v. Thompson, 46 M.J. 472 (C.A.A.F. 1997):  After the fact approval of defense requested delay by the SPCMCA held excludable delay.  Although purpose of revised rule was to obtain delays as you go, CAAF focused on fact the specific text of RCM 707(c) “does not require specifically that the delay be approved in advance for it to be excluded.”  But government runs risk that such post hoc determinations will be viewed with skepticism.  CAAF avoided certified issue of whether quasi-judicial Article 32 PHO has power to exclude delays.

c.   United States v. Melvin, 2009 CCA Lexis 82 (A.F. Ct. Crim. App. 2009):  Maj. Melvin was an Air Force ROTC instructor.  He was charged with providing underage cadets in his detachment with alcohol, had sexual intercourse with a female cadet, and encouraged cadets to lie to investigating officers.  He was adjudged a dismissal and six months confinement.  One issue on appeal was the trial judge’s decision to exclude the time (158 days) it took to process the Servicemember’s request for resignation in lieu of trial, determining that only seventy “countable” days had passed between preferral and arraignment.  The Air Force appellate court held that exclusion of this time was proper even though he had submitted a speedy trial request because there was no evidence he wanted to proceed to trial while the resignation request was pending.

d.   Request for delay need not originate from either party; convening authority may initiate sua sponte. United States v. Anderson, 46 M.J. 540 (N-M Ct. Crim. App. 1997).

D.  Remedy for violation is dismissal of charges (with or without prejudice) upon timely motion.  RCM 707(d).

1.   In dismissing with or without prejudice, the military judge considers these factors:  “seriousness of the offense; the facts and circumstances of the case that lead to dismissal; the impact of a re-prosecution on the administration of justice; and any prejudice to the accused . . . .”  The dismissal must be with prejudice where the accused has been deprived of the Constitutional right to a speedy trial.  RCM 707(d); United States v. Bray, 52 M.J. 659, 663 (A.F. Ct. Crim. App. 2000).

a.   United States v. Edmond, 41 M.J. 419 (C.A.A.F. 1995):  Dismissal without prejudice appropriate for 41 day violation of RCM 707.  Sex crimes against inebriated victim were serious offenses; no government bad faith involved; dismissal with prejudice would not lead to better administration of justice; no indication accused suffered prejudice.

b.   United States v. Bolado, 34 M.J. 732, 739 n.6 (N.M.C.M.R. 1991); aff’d, 36 M.J. 2 (C.M.A. 1992):  “A commander’s decision to reassign an accused to another duty assignment is not the kind of prejudice envisioned in R.C.M. 707(d).”  Court also states “backwater of suspicion” following dismissal is no different than that existing pre-preferral and constitutes minimal prejudice.

c.   United States v. Dooley, 61 M.J. 258 (C.A.A.F. 2005):  In 1998, Dooley was convicted of various child pornography related offenses.  In 2004, his conviction was set aside.  The convening authority decided to retry Dooley on the charges but did not bring him off appellate leave and onto active duty and arraign him until 125 days after the convening authority received the record of trial.  The military judge dismissed the case with prejudice.  The NMCCA reversed the judge based on the fact that he had abused his discretion when ordering dismissal with prejudice.  CAAF reversed the NMCCA and reinstated the trial court’s dismissal with prejudice.  Under the abuse of discretion standard, mere disagreement with the conclusion of the trial judge is not enough to warrant reversal.  Here the NMCCA did not find that the trial judge’s decisions were “clearly erroneous” but rather that it “did not concur” with the trial judge.

d.   United States v. McClain, 65 M.J. 894 (Army Ct. Crim. App. 2008):  Mistrial is not an appropriate remedy for a violation of RCM 707.

2.   In a sentence-only rehearing, the military judge can award sentence relief for RCM 707 violations.  RCM 707(d).  In determining the amount of credit, the military judge should consider the length of the delay, reasons for the delay, accused’s demand for speedy trial, and any prejudice to the accused resulting from the delay.

IV.    Article 10, UCMJ

A.  Article 10:  “When a person subject to this chapter is ordered into arrest or confinement before trial, immediate steps shall be taken (A) to inform the person of the specific offense of which the person is accused; and (B) to try the person or to dismiss the charges and release the person.”

         1.  Unlike RCM 707, the more stringent protections of Article 10 are triggered only if the accused is placed in pretrial confinement or arrest. 

B.   The test for determining whether Article 10 has been violated:

1.   OLD RULE.  United States v. Burton, 44 C.M.R. 166 (C.M.A. 1971) (pretrial confinement over 90 days created a presumptive speedy trial violation under Article 10; the government could overcome the presumption by demonstrating due diligence.).

2.   CURRENT RULE.  United States v. Kossman, 38 M.J. 258 (C.M.A. 1993):  court rejected the Burton 90-day rule.

a.   “Reasonable diligence” is the standard for measuring compliance with Article 10.

b.   Article 10 may be violated where accused is tried in less than 120 days, or even in less than 90 days.  Many circumstances, however, may justify delays beyond these traditional periods.  “The touch stone  . . . is not constant motion, but reasonable diligence in bringing the charges to trial.  Brief periods of inactivity in an otherwise active prosecution are not unreasonable or oppressive.” 

c.   Article 10 motion will lie when government “could readily have gone to trial . . . but negligently or spitefully chose not to.” 

3.   Test.  Factors from Barker v. Wingo, 407 U.S. 514 (1972):  An analysis of Article 10 arguments includes a balancing of the four Barker factors.  United States v. Birge, 52 M.J. 209 (C.A.A.F. 1999); United States v. Cooper, 58 M.J. 54 (C.A.A.F.  2003).  The CAAF in the 2016 Cooley case (see infra) made clear that a balancing of the Barker factors is the predominant test for determining whether Article 10 speedy trial protections were violated. 

 a.   The Barker factors include:

1)   Length of delay:  unless there is some delay that is presumptively prejudicial, there is no need to inquire into the other factors.  The length of delay that will trigger the full analysis depends on the facts/complexity of the case (i.e., is the case about a simple PX theft that could be brought to trial fairly quickly or a more complex sexual assault case).

2)   Reasonableness of delay:  deliberate attempts to delay the trial in order to hamper the defense weigh heavily against the government.  More neutral reasons such as busy dockets still weigh against the government, but not as heavily.  Reasons such as missing witnesses and other matters outside of the government’s control will typically not weigh against the government.

3)   Accused’s speedy trial demand:  did the accused demand speedy trial?

4)   Actual prejudice:  courts will consider whether there was oppressive pretrial incarceration, high levels of anxiety or concern imposed on the accused, or impairment of the defense from a legal perspective.

b.  United States v. Cooley, 75 M.J. 247 (C.A.A.F. 2016) application of the Barker factors:  CAAF upheld the CGCCA’s determination that Cooley’s Article 10 speedy trial right was violated based on a balancing of the four Barker factors, noting the Government’s lack of diligence in bringing Cooley to trial:

1)   CAAF determined the 289 delay in bringing the case to trial was unreasonable and triggered a full Article 10 analysis.

2)   CAAF determined that the government’s purposed reason for additional delay (continued law enforcement investigation in a complex case) was insufficient because no additional investigation took place after the accused was placed in pretrial confinement, and the case was not particularly complex.

3)   Defense met the third factor by demanding speedy trial for the client on five different occasions.

4)   CAAF found actual prejudice existed because the defense was unable to present a complete sentencing case where the defense’s requested expert consultant was provided only days before trial due to government gamesmanship.

4.   Remedy for an Article 10 violation is dismissal with prejudice.

5.   Arraignment does not necessarily terminate government’s Article 10 speedy trial obligations.  United States v. Cooper, 58 M.J. 54 (C.A.A.F. 2003):  “We therefore hold that the Article 10 duty imposed on the Government immediately to try an accused who is placed in pretrial confinement does not terminate simply because the accused is arraigned.”  The court goes on to say that post arraignment, the MJ has much more control of the course of the trial, but the “affirmative obligation of reasonable diligence upon the government does not change.”  

C.   Illustrative Historical Cases on the Application of the Reasonable Diligence Standard

1.United States v. Hatfield, 44 M.J. 22 (C.A.A.F 1996):  Overall lack of forward motion toward resolving relatively simple case.  CAAF particularly concerned with two month delay in appointing defense counsel due to incomplete paperwork.

2.United States v. Collins, 39 M.J. 739 (N.M.C.M.R. 1994):  Six to eight phone calls by non-JAG attempting to obtain evidence of forged checks from an exchange on another installation is not proceeding with due diligence.  Delays in requesting copy of service record and requesting legal services do not reflect due diligence.

3.United States v. Laminman, 41 M.J. 518 (C.G. Ct. Crim. App. 1994):  Government failed to proceed with reasonable diligence when it brought the accused to trial 134 days after initial restraint (21 days attributed to defense delay.)  Case provides detailed analysis of Article 10 and the government’s burden of proof when confronted with motion to dismiss based on Article 10.  Court found government’s failure to provide evidence explaining several delays supported military judge’s finding of lack of diligence. 

4.United States v. Calloway, 47 M.J. 782 (N.M. Ct. Crim. App. 1998):  Accused placed in pretrial confinement for 20 days before government took any action on his case.  Another 7 days passed before magistrate review.  The government took another 34 days to prefer charges, another 22 days to serve charges on the accused after referral, and another 18 days to arraign the accused.  Accused was not provided with a TDS counsel until 66 days after pretrial confinement.  Several other cases without pretrial confinement were tried before the accused’s case. Military judge failed to make specific findings of fact and explanation for the delays, especially regarding (1) overall lack of forward motion, (2) delay in appointing DC.  Judge also criticized for relying too much on RCM 707 type analysis.

5.United States v. Mizgala, 61 M.J. 217 (C.A.A.F. 2005):  Mizgala was placed in pretrial confinement (PTC) for 117 days.  His initial PTC began on 28 February.  Based on various factors (i.e., waiting on a police report, moving the SJA office because of a fire) the government did not prefer charges until 14 May.  On 16 April, Mizgala made a demand for a speedy trial.  The Article 32 was held on 22 May; afterwards the charges were referred to trial on 20 June. At the arraignment, the military judge denied Mizgala’s motion to dismiss for violating Article 10.  The military judge used a “gross negligence” standard when deciding that the government had not violated Article 10.  The CAAF affirmed the trial court decision that the government did not violate Mizgala’s speedy trial rights but pointed out several errors that the military judge made when deciding the motion.  First, the 120 day requirement of RCM 707 is irrelevant when determining whether there was an Article 10 violation.  Second, reasonable diligence, not gross negligence, is the proper standard when analyzing Article 10 claims.  Finally, Article 10 is more exacting than the 6th Amendment so the military judge should not have limited his consideration to the Barker v. Wingo factors (see infra).  The CAAF also held that an unconditional guilty plea does NOT waive consideration of an Article 10 claim on appeal.

6.United States v. Simmons, 2009 CCA LEXIS 301 (Army Ct. Crim. App. 2009):  In an unpublished opinion, ACCA ruled that the government did not exhibit reasonable diligence in processing its case.  Consequently, the court dismissed the case with prejudice, the remedy for a violation of Article 10.  Simmons pled guilty at a general court-martial to AWOL, failure to be at his place of duty or follow orders, and disorderly conduct.  While he was also arraigned on charges of rape, kidnapping, and multiple assaults, those charges were dismissed.  The issue on appeal in this case was whether the judge erred by failing to dismiss the charges for violating Article 10.  Simmons remained in PTC for 133 days before his trial, although he was arraigned on day 107.  The events of this case took place in South Korea, where Simmons was assigned.  The first delay of this case resulted from the government’s errant belief that the SOFA gave primary jurisdiction to the Koreans and the U.S. military was barred from going forward with the case.  In addition to mistakenly believing the SOFA prohibited them from moving forward, the government also cited a brigade training exercise in hindering their forward movement.  The court noted that, “[w]hile operational considerations are relevant, they are not an absolute excuse.”  Ultimately, Simmons spent 134 days in PTC before being sentenced to 120 days of confinement, a BCD and reduction to E-1. 

7.United States v. Roberts II, 2009 WL 613877 (A.F. Ct. Crim. App. 2009):  The prosecution took 270 days from the time Roberts was placed into PTC until he was brought to trial.  Based on the Record of Trial, the appellate court opined that the government “exercised reasonable diligence in accomplishing those tasks necessary to try him.”  As such, Roberts did not receive any credit for speedy trial violations despite the amount of time it took to get the case to trial.   

8.United States v. Thompson, 68 M.J. 308 (C.A.A.F. 2010):  Accused spent 145 days in PTC.  Much of the delay centered on the handover of the off-post offenses from the civilian authorities to the military.  Additional delay came from the TC attending a weeklong, out-of-town sexual assault course and then taking 4 days of leave, before being snowed in for an additional day.  Further exacerbating the problem was a deployment that ultimately resulted in 3 different TCs handling the case.  The trial judge found that there was a 37 day period where the government failed to act with reasonable diligence and dismissed all charges with prejudice for violating Thompson’s Article 10 right to a speedy trial.  Unlike the judge, ACCA found it reasonable that the TC resolve all of the jurisdictional issues with the civilian authorities before proceeding, as well as taking what ACCA termed “mandatory job-related training” and taking a short leave in conjunction with that duty.  ACCA was also influenced by defense not making a speedy trial demand until Thompson had been in confinement for over 140 days, which was not during the 37 day period.  ACCA was further impacted by a 39 day defense delay to prepare for the Art. 32 hearing, which came after the 37 day period the judge determined the defense did not proceed with reasonable diligence.  ACCA returned the case to the judge for action not inconsistent with their opinion, after writing, “appellee does not allege, nor do we find, that she suffered any hindrance to the preparation of her case because of any delay.”  CAAF upheld ACCA based on the 37 days needed to determine who was going to prosecute the case.

9.United States v. Schuber, 70 M.J. 181 (C.A.A.F. 2011):  Schuber was subject to restriction not tantamount to arrest during the period following his 71 days in pretrial confinement, where he was restricted to base rather than to quarters, and although he was required to provide weekly urine samples, he was permitted to use all usual base activities, was given a three-day pass upon the death of his grandfather, was not placed under guard or escort during his base restriction or travel, and was not suspended from performing normal military duties. The court held, “there are gradations of restriction. Whether a particular restriction amounts to arrest for the purposes of Article 10, UCMJ, will depend on a contextual analysis . . . including consideration of such factors as the geographic limits of constraint, the extent of sign-in requirements, whether restriction is performed with or without escort, and whether regular military duties are performed.”  In doing so, the court made it easier for defense counsel to argue that an accused is under arrest and thus protected by Article 10. The accused could be performing military duties but still be under arrest because of narrow geographic limits of constraint, sign-in requirements, and escort requirements.

V. The Sixth Amendment Right to Speedy Trial

A.  6th Amendment speedy trial protections are triggered by preferral of charges.  United States v. Danylo, 73 M.J. 183 (C.A.A.F. 2013); United States v. Grom, 21 M.J. 53 (C.M.A. 1985).  Note that there is also some caselaw stating that 6th Amendment protections are also triggered by pretrial confinement, but if an accused is confined, the more stringent protections of Article 10 will apply anyway (although courts will apply the Barker factors to analyze both 6th Amendment and Article 10 arguments, the courts will typically be more stringent in the weighing of factors for purposes of Article 10 because the accused is in confinement). 

B.   Test:  Balancing of the Barker Factors (see details on the Barker factors in Section IV supra).

1.   Length of delay;

2.   Reason for delay;

3.   Assertion of the right to speedy trial; and

4.   Prejudice to accused.

C.   Applying Barker v. Wingo.  United States v. Edmond, 41 M.J. 419 (C.A.A.F. 1995):  In this case, the court determined there was no 6th Amendment violation under Barker test.  Length of delay: 176 days from preferral to trial; the court determined this length of delay was sufficient to trigger a full analysis in the case.  Reason for delay: witnesses unavailable due to homeport change and necessity of trying co-accused shipmates before granting immunity; the court determined that although these are legitimate reasons, this factor still weighs against the government.  Assertion of right:  Accused did demand speedy trial; court determined this factor did weigh against the government.  Prejudice: only slight prejudice; accused’s defense was not impaired; he was not restrained; he had not suffered abnormal anxiety because of charges.  Accused had been paid and had been allowed to work in his rating, albeit only duties not requiring a security clearance.  The court determined that based on this, the last Barker factor weighed against the defense.  Held: balance weighed in favor of government.

D.  Constitutional right to a speedy trial does not arise until after an indictment is filed or charges are preferred.  United States v. McGraner, 13 M.J. 408 (C.M.A. 1982); United States v. Vogan, 35 M.J. 32 (C.M.A. 1992) (Accused committed mail fraud while serving a prior court-martial sentence. He was placed in administrative segregation pending year-long investigation.  Held:  6th Amendment right to a speedy trial did not apply because of accused’s post-trial restraint.).

E.   Remedy for 6th Amendment speedy trial violation is dismissal with prejudice.

VI.    The Fifth Amendment Right to Due Process

A.  5th Amendment protections are triggered as soon as the crime is committed.  They apply during the investigatory stage, prior to preferral.

B.   Test:  Defense has the burden of showing:

1.   Egregious or intentional tactical delay by the Government; and

2.   Actual prejudice to the accused or his case (there has to be actual prejudice, such as the loss of a witness or the substance of their testimony or loss of evidence, and that prejudice must be substantial enough to impact the accused’s ability to get a fair trial; speculative prejudice is not enough).  United States v. Reed, 41 M.J. 449 (C.A.A.F. 1995).

C.   United States v. Reed, 41 M.J. 449 (C.A.A.F. 1995):  Seventeen month delay between identification of accused as a suspect and preferral of charges did not violate due process.  Appellant failed to meet his burden of proof to show an egregious or intentional tactical delay and actual prejudice.  The Court also noted that when the accused is not confined, the statute of limitations is the "primary protection" against pre-accusation delay (see Article 43, UCMJ). 

D.  Remedy for a 5th Amendment speedy trial violation is dismissal with prejudice.

VII.   Litigating Speedy Trial Issues

A.  Accused raises issue at trial by a motion to dismiss.  RCM 707(c)(2), 905, 907. 

1.   Once defense raises the issue, government has burden of persuasion to show no denial of speedy trial.  RCM 905(c)(2)(B).

2.   The government’s burden of proof on any factual issue is by a preponderance of the evidence.  RCM 905(c)(1); United States v. Cummings, 21 M.J. 987 (N.M.C.M.R. 1986).

3.   Once raised, counsel must prepare a chronology of the case to be included in the appellate record.  RCM 707(c)(2).  Parties must put on evidence or agree to a stipulation of fact.  United States v. Cummings, 21 M.J. 987 (N.M.C.M.R. 1986); United States v. Thompson, 29 C.M.R. 68 (C.M.A. 1960).  The court is not permitted to consider matters in an offer of proof. A proffer is not evidence.

a.   The U.S. Army Trial Judiciary’s Rules of Practice Before Army Courts-Martial requires the parties to submit a stipulated chronology of dates and events to which the parties agree and, if needed, a separate chronology from each party for those dates and events as to which there is no agreement. Rule 3.2.

B.   Waiver and Forfeiture

1.   Speedy trial issues are forfeited if not raised before final adjournment (unless affirmatively waived). RCM 905(e)(2).  But see United States v. Britton, 26 M.J. 24 (C.M.A. 1988) (“While it is the general rule that failure to make a timely motion at trial may estop one from raising the issue on appeal, failure to raise the issue does not preclude the Court of Military Review in the exercise of its powers from granting relief.”).

2.   Forfeiture by guilty plea:  “Except as provided in [a conditional plea], a plea of guilty which results in a finding of guilty forfeits any speedy trial issue as to that offense, unless affirmatively waived.”  RCM 707(e).

a.   A litigated Article 10 motion is not waived by an unconditional guilty plea. 

3.   Plea agreement provisions.  A term or condition in a plea agreement that deprives the accused of the right to a speedy trial is not enforceable.  RCM 705(c)(1).

a.   United States v. McLaughlin, 50 M.J. 217 (C.A.A.F. 1999):  The accused challenged a provision in the pretrial agreement that required a waiver of a speedy trial motion.  Finding that such a provision is impermissible, CAAF said the Military Judge should have set aside that provision and held the Government to the balance of the PTA, giving the defense the chance to raise or waive the motion at trial.  Absent this "cleaner" waiver process, the CAAF says that the accused must make a colorable or prima facie claim that he would have been entitled to relief on his speedy trial motion.  The CAAF said the defense failed in this case, when the accused had been in PTC for 95 days, no prejudice was claimed by the defense and no demand for immediate trial was made.

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