                        UNITED STATES, Appellee

                                    v.

   Jaason M. LEAHR, Aviation Survival Technician Second Class
                   U.S. Coast Guard, Appellant

                               No. 14-0265

                          Crim. App. No. 1365

       United States Court of Appeals for the Armed Forces

                          Argued May 14, 2014

                         Decided July 25, 2014

RYAN, J., delivered the opinion of the Court, in which BAKER,
C.J., and OHLSON, J., joined. STUCKY, J., filed a separate
dissenting opinion, in which ERDMANN, J., joined.


                                 Counsel

For Appellant: William E. Cassara, Esq. (argued); Lieutenant
Cara J. Condit (on brief).

For Appellee:    Lieutenant Commander Amanda M. Lee (argued).



Military Judge:    Michael E. Tousley



     THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Leahr, 14-0265/CG


       Judge RYAN delivered the opinion of the Court.

       A general court-martial composed of officer and enlisted

members convicted Appellant, contrary to his pleas, of one

specification of larceny, four specifications of assault

consummated by battery, and two specifications of wrongfully

communicating a threat, in violation of Articles 121, 128, and

134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 921,

928, 934 (2012), respectively.     Appellant was found not guilty

of burglary, in violation of Article 129, UCMJ, 10 U.S.C. § 929

(2012), and kidnapping, in violation of Article 134, UCMJ.      The

adjudged sentence provided for three months of confinement,

reduction to E-1, and a bad-conduct discharge.     The convening

authority approved the sentence as adjudged.

       The United States Coast Guard Court of Criminal Appeals

(CGCCA) affirmed the findings and sentence as approved by the

convening authority.     United States v. Leahr, No. 1365, slip op.

at 6 (C.G. Ct. Crim. App. Oct. 22, 2013).     We granted review of

the following issues:

       I.    WHETHER THE MILITARY JUDGE ERRED IN DENYING THE
             DEFENSE MOTION TO DISMISS FOR VIOLATION OF
             APPELLANT’S RIGHT TO SPEEDY TRIAL UNDER RCM 707.

       II.   WHETHER THE GOVERNMENT’S WITHDRAWAL OF CHARGES
             AND RE-REFERRAL TO ANOTHER COURT-MARTIAL WAS IN
             VIOLATION OF RCM 604(b) BECAUSE THEY WERE
             PREVIOUSLY WITHDRAWN FOR AN IMPROPER REASON. 1

1
    We also granted the following issue:

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United States v. Leahr, 14-0265/CG


United States v. Leahr, 73 M.J. 234 (C.A.A.F. 2014) (order

granting review).

     We conclude that Appellant’s right to a speedy trial under

Rule for Courts-Martial (R.C.M.) 707 was not violated because

Appellant’s original charges were dismissed.   Further, the

dismissal and re-referral of the charges to another court-

martial did not violate R.C.M. 604(b) because the dismissal was

for a proper reason.   Accordingly, we affirm the CGCCA’s

decision.

                             I.   FACTS

     Charges were preferred against Appellant on March 1, 2011

(original charges), and an Article 32, UCMJ, 10 U.S.C. § 832

(2012), investigation was held on May 17 and 18, 2011.   The


     III. WHETHER APPELLANT WAS DENIED A FAIR TRIAL WHEN
          THE MILITARY JUDGE TWICE SUGGESTED IN FRONT OF
          THE MEMBERS THAT APPELLANT WAS GUILTY, FIRST BY
          “THANKING” A WITNESS FOR HIS EFFORTS TO PROTECT
          THE VICTIM, AND THEN BY ASKING DEFENSE COUNSEL
          BEFORE FINDINGS WHETHER A WITNESS WOULD BE
          SUBJECT TO RECALL AS A “SENTENCING WITNESS.”

Leahr, 73 M.J. at 234. Although military judges should be
careful not to make such comments, when challenging a military
judge’s impartiality on appeal the test is objective and
considers “whether, taken as a whole in the context of this
trial, a court-martial’s legality, fairness, and impartiality
were put into doubt by the military judge’s actions.” United
States v. Martinez, 70 M.J. 154, 157 (C.A.A.F. 2011) (internal
quotation marks omitted). We cannot say that the comments here
present “deep-seated favoritism or antagonism” on behalf of the
military judge, see, e.g., Liteky v. United States, 510 U.S.
540, 555 (1994), and Appellant was not denied a fair trial based
on the military judge’s comments.

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United States v. Leahr, 14-0265/CG


charges were referred to trial by general court-martial on June

16, 2011.   Appellant was arraigned on July 7, 2011, and a trial

date was subsequently set for November 8, 2011, through the Case

Management Order (CMO).    Case Management Order #1, United States

v. Leahr (July 1, 2011).   On August 9, 2011, the Coast Guard

Investigative Service (CGIS) learned of a new allegation against

Appellant of assault consummated by battery.   The military judge

found that the earlier failure to investigate that altercation

“was not negligent, but was reasonable . . . . The actual

instigation of the investigation that led to the new charges

[sic] occurred in the normal course of the government’s

preparing for the contingency to [sic] trial and was not

unreasonable.” 2

     Based on this new allegation, on September 1, 2011, the

convening authority signed a document titled, “Withdrawal and

Dismissal of Charges Against [Appellant],” which stated:

     The charges and specifications referred to a general
     court-martial on 16 June 2011 in the case of United
     States v. AST2 Jaason M. Leahr, USCG, are hereby
     withdrawn and dismissed without prejudice. . . . In
     anticipation of the possibility that this new
     allegation will cause [Appellant] to become the
     subject of a newly preferred additional charge which
     would warrant referral to a court-martial, I desire
     that the accused to be [sic] tried on all charges at a
     single trial to best serve the interests of justice
     and promote judicial economy.

2
  Appellant does not argue that this finding was clearly
erroneous or unsupported by the record.

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United States v. Leahr, 14-0265/CG


Appellant was notified that the charges were dismissed.

Motion to Dismiss for Lack of Speedy Trial at 3, United

States v. Leahr (C.G.C-M.G. Oct. 26, 2011).

     On September 6, 2011, a new charge sheet was preferred,

which contained the same charges and specifications as the

first, but added an additional assault specification (additional

charge) and included terminal element language in the three

Article 134, UCMJ, specifications, which had not been included

in the original specifications.   Another Article 32, UCMJ,

investigation was conducted on September 29, 2011, which only

considered the additional charge.     Appellant did not demand that

the investigation consider all of the charges.    On October 12,

2011, all charges were referred to trial by general court-

martial.

     On October 24, 2011, Appellant filed a motion to dismiss

pursuant to R.C.M. 604(b).   On October 26, 2011, Appellant filed

a second motion to dismiss, this one for lack of a speedy trial,

alleging that because the convening authority’s action

constituted a withdrawal, and not a dismissal, the R.C.M. 707

clock continued to run from the date of the original preferral

on March 1, 2011, rendering the July 7, 2011, arraignment

meaningless.   Appellant was arraigned on November 8, 2011, and

motions were litigated November 8 through 9, 2011.    The military

judge denied both motions finding, among other things, that the

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United States v. Leahr, 14-0265/CG


withdrawal and dismissal of the original charges was valid and

for a proper reason.   Trial commenced on November 28, 2011.

                        II.   CGCCA DECISION

     As relevant to our decision, Appellant argued before the

CGCCA that the military judge both erred in failing to find that

the Government violated R.C.M. 707 and in not finding that the

Government’s re-referral of charges violated R.C.M. 604(b)

because the withdrawal was for an improper reason.   In affirming

the findings and sentence, the CGCCA held that the military

judge did not err in denying Appellant’s motion to dismiss for

violation of R.C.M. 707, relying on the fact that the convening

authority dismissed the original charges, and thus, “[t]hose

charges and their date are irrelevant to the determination of

whether Appellant was brought to trial on the new charges . . .

within the requirements of R.C.M. 707.”    Leahr, No. ACM 1365,

slip op. at 4.   The CGCCA further held that “the withdrawal of

charges was not improper and re-referral was likewise not

improper” because the military judge’s finding that the reason

for withdrawal and re-referral was “greater judicial and cost

efficiencies” was not clearly erroneous.   Id. at 5 (internal

quotation marks omitted).




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United States v. Leahr, 14-0265/CG


                           III.   DISCUSSION

                                   A.

     “The conclusion whether an accused received a speedy trial

is a legal question that is reviewed de novo . . . .”      United

States v. Cooper, 58 M.J. 54, 58 (C.A.A.F. 2003) (emphasis

added) (quoting United States v. Doty, 51 M.J. 464, 465

(C.A.A.F. 1999) (internal quotation marks omitted)).

     It is incumbent upon the government to arraign the accused

within 120 days after the earlier of preferral of charges, the

imposition of restraint, or entry on active duty.      R.C.M. 707

(a)–(b).   Where “charges are dismissed . . . a new 120-day time

period under this rule shall begin on the date of dismissal.”

R.C.M. 707(b)(3)(A).   If charges are merely withdrawn and not

subsequently dismissed, however, the R.C.M. 707 “speedy-trial

clock continues to run.”    United States v. Britton, 26 M.J. 24,

26 (C.M.A. 1988).

     Appellant argues that the R.C.M. 707 clock continued to run

from the date the original charges were preferred on March 1,

2011, 3 and that the arraignment on July 7, 2011, which stopped

the R.C.M. 707 clock, was vitiated by the convening authority’s

action on September 1, 2011.      In his view, the action by the

3
  While varying conditions on Appellant’s liberty were imposed at
different times, Appellant does not argue that the R.C.M. 707
clock is tied to them; rather, he relies on those conditions as
evidence that a dismissal did not occur.

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United States v. Leahr, 14-0265/CG


convening authority on September 1, 2011, was a withdrawal, and

not a dismissal, because:   (a) conditions on Appellant’s liberty

remained in place; (b) the convening authority intended at all

times to pursue charges against Appellant; (c) only five days

elapsed between the purported dismissal and preferral of

charges; and (d) the second Article 32, UCMJ, investigation

considered only the additional charge.

     In this case, if the convening authority dismissed the

original charges on September 1, 2011, the dismissal reset the

speedy trial clock and no violation under R.C.M. 707 occurred.

R.C.M. 707(b)(3)(A).   If, however, his action amounted to a

withdrawal only, the speedy trial clock was not reset and the

190-day period between the initial preferral on March 1, 2011,

and arraignment on all charges on November 8, 2011, violated

R.C.M. 707.   Britton, 26 M.J. at 26.    On balance, we conclude

that the convening authority intended to, and did, dismiss the

original charges on September 1, 2011.

     “The convening authority or a superior competent authority

may for any reason cause any charges or specifications to be

withdrawn from a court-martial at any time before findings are

announced.”   R.C.M. 604(a).   “Charges which are withdrawn from a

court-martial should be dismissed (see R.C.M. 401(c)(1)) unless

it is intended to refer them anew promptly or to forward them to

another authority for disposition.”     R.C.M. 604(a) Discussion.

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United States v. Leahr, 14-0265/CG


     “When a commander dismisses charges further disposition

under R.C.M. 306(c) of the offenses is not barred.”    R.C.M.

401(c)(1); see also Manual for Courts-Martial, United States,

Analysis of the Rules for Courts-Martial app. 21 at A21-33 (2012

ed.) [hereinafter R.C.M. Drafters’ Analysis] (“Dismissal of

charges disposes of those charges; it does not necessarily bar

subsequent disposition of the underlying offenses (see Analysis,

R.C.M. 306(a)).”).   In order for a withdrawn charge to be

dismissed, R.C.M. 604(a) contemplates that “an additional

affirmative action will be taken by the convening authority.”

Britton, 26 M.J. at 26.   “Charges are ordinarily dismissed by

lining out and initialing the deleted specifications or

otherwise recording that a specification is dismissed.”     R.C.M.

401(c)(1) Discussion.

     In this case, the convening authority desired to join an

additional charge, consonant with the preference for joinder of

all known offenses at a single court-martial.     R.C.M. 601(e)(2)

Discussion.   Because Appellant had been arraigned on the

original charges, no such joinder was permissible, in the same

trial, without his consent.   R.C.M. 601(e)(2).   While, as it

turned out, the additional charge was ready for preferral five

days later, this does not preclude withdrawing and dismissing

the original charges absent an improper reason.    See R.C.M 604

(b) and R.C.M. 604 Drafters’ Analysis (noting that after

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United States v. Leahr, 14-0265/CG


dismissal, “a later preferral and referral would raise the same

issues as are discussed under subsection (b),” which allows

referral “to another court-martial unless the withdrawal was for

an improper reason”).     Moreover, the original Article 134, UCMJ,

specifications, which failed to allege the terminal element,

were defective under this Court’s case law.    See Jones v. United

States, 526 U.S. 227, 232 (1999); see also United States v.

Ballan, 71 M.J. 28, 33 (C.A.A.F. 2012).    Failing to include the

terminal element in the specifications in this contested case

warranted dismissal because such a specification is defective.

See, e.g.,    R.C.M. 907(b)(1)(B); R.C.M. 603(d); see also R.C.M.

401(c)(1) Discussion (noting that “[i]t is appropriate to

dismiss a charge and prefer another charge anew when, for

example, the original charge failed to state an offense”).

     Unlike in Britton, in this case, the convening authority

withdrew the original charges, and took more than one

“additional affirmative action” to dismiss them.    Britton, 26

M.J. at 26.   First and foremost, the convening authority’s

September 1, 2011, document expressly stated that the charges

were dismissed (“The charges and specifications . . . are hereby

withdrawn and dismissed without prejudice.”) -- a “recording

that a specification [was] dismissed.”    R.C.M. 401(c)(1)

Discussion.   Second, Appellant was notified that the original

charges were dismissed.    See United States v. Tippit, 65 M.J.

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United States v. Leahr, 14-0265/CG


69, 72, 78–79 (C.A.A.F. 2007) (noting that informing the

appellant that the charges had been dismissed was important to

finding a dismissal of charges).     Taken together, these

circumstances demonstrate that the convening authority intended

to dismiss the charges after they were withdrawn.     R.C.M. 604(a)

Discussion.

     While the second Article 32, UCMJ, investigation considered

only the additional charge, this is precisely what the rules

contemplate, absent the objection of the accused:

     If an investigation of the subject matter of an
     offense has been conducted before the accused is
     charged with the offense, and if the accused was
     present at the investigation and afforded the
     opportunities for representation, cross-examination,
     and presentation . . . no further investigation of
     that charge is necessary . . . unless it is demanded
     by the accused after he is informed of the charge.

Article 32(c), UCMJ.   The record does not demonstrate that the

accused demanded further investigation of the original charges.

     It is true that the convening authority expressly stated

the reason for the withdrawal and dismissal, and clearly

contemplated further action against Appellant at some point in

the future.   But we disagree that the mere fact that a convening

authority intends at the time of dismissal to pursue future

action against an accused is dispositive as to whether a

dismissal was intended and effective.     Although some cases note

that dismissal “contemplate[s] that the accused no longer faces



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United States v. Leahr, 14-0265/CG


charges,” Britton, 26 M.J. at 26, the rules clearly envision

situations where repreferral is both anticipated and permitted.

See R.C.M. 707(b)(3)(A)(i) (“If charges are dismissed . . . a

new 120-day time period under this rule shall begin on . . . the

date of repreferral.”); R.C.M. 401(c)(1) Discussion.        Britton

noted that a convening authority’s “withdrawal and re-preferral

on the same day shows that his intent was not to dismiss the

charges at all.”    26 M.J. at 26.       In Britton, however, the

convening authority issued a clearly identified withdrawal and

did not take additional action to dismiss the charges.         See id.

at 24–26.   In Britton, the “convening authority did not act to

dismiss,” yet the government requested that the action

nonetheless be treated equivalently to a dismissal for purposes

of establishing the date of reinstitution of charges under

R.C.M. 707(b).     See id. at 26.    As explained above, the

circumstances in this case clearly indicate “an additional

affirmative action” by the convening authority to dismiss the

withdrawn charges.    See id.

     Nor does continued restraint vitiate a commander’s

expressed intent to dismiss charges.        See United States v.

Anderson, 50 M.J. 447, 448 (C.A.A.F. 1999) (finding that the

dismissal of charges against an appellant restarted the speedy

trial clock where the appellant remained in continued restraint

and the charges were repreferred because “[e]ven though there is

                                    12
United States v. Leahr, 14-0265/CG


continued restraint, a dismissal of the charges stops the 120–

day clock and a new 120–day clock is started”); see also R.C.M.

707(b)(3).

     When charges are dismissed, the R.C.M. contemplates that

“[r]einstitution of charges requires the command to start over.

The charges must be re-preferred, investigated, and

referred . . . as though there were no previous charges or

proceedings.”   Britton, 26 M.J. at 26.    That is precisely what

happened here, given that Appellant was present at the second

Article 32, UCMJ, investigation, and did not demand further

investigation of the original charges.    Article 32(c), UCMJ.

Absent a situation where a convening authority’s express

dismissal is either a subterfuge to vitiate an accused’s speedy

trial rights, or for some other improper reason, a clear intent

to dismiss will be given effect.     See R.C.M. 604 Drafters’

Analysis (“Dismissal of charges disposes of those charges; it

does not necessarily bar subsequent disposition of the

underlying offenses, . . . although a later preferral and

referral would raise the same issues as are discussed under

subsection (b).”); see also Tippit, 65 M.J. at 79 (“[O]nce

charges are dismissed, absent a subterfuge, the speedy-trial

clock is restarted.” (alteration in original)).    In that light,

we note that the original arraignment was well within the time

period contemplated by R.C.M. 707, the military judge found

                                13
United States v. Leahr, 14-0265/CG


there were valid reasons for the late discovery and

investigation of the new charge, Appellant was arraigned for a

second time on the date the original CMO set for trial, and the

trial itself occurred just three weeks later.    While the

convening authority might have sought Appellant’s permission

both to add an additional charge, see R.C.M. 601(e)(2), and to

make major amendments to the original Article 134, UCMJ,

specifications to add the terminal elements, see R.C.M. 603(d),

there is no requirement that he do so, and withdrawal and

dismissal were appropriate means available to effectuate those

ends.

     Appellant agrees that if the September 1, 2011, action was

a dismissal, he was brought to trial within the time parameters

of R.C.M. 707.    Having concluded that the convening authority

withdrew and dismissed the charges on September 1, 2011, the

military judge did not err in denying the R.C.M. 707 motion.

                                 B.

     Appellant also contends that the re-referral of the

original charges violated R.C.M. 604(b) because the withdrawal

was for an improper reason.

     This Court reviews interpretations of R.C.M. provisions de

novo.    United States v. Hunter, 65 M.J. 399, 401 (C.A.A.F.

2008).    R.C.M. 604(a) states that “[t]he convening

authority . . . may for any reason cause any charges or

                                 14
United States v. Leahr, 14-0265/CG


specifications to be withdrawn from a court-martial at any time

before findings are announced.”    “Charges which have been

withdrawn from a court-martial may be referred to another court-

martial unless the withdrawal was for an improper reason.”

R.C.M. 604(b); see also R.C.M. 604 Drafters’ Analysis

(“Dismissal of charges . . . does not necessarily bar subsequent

disposition of the underlying offenses . . . although a later

preferral and referral would raise the same issues as are

discussed under subsection (b).”).

     A proper reason for withdrawal is “a legitimate command

reason which does not ‘unfairly’ prejudice an accused.”    United

States v. Underwood, 50 M.J. 271, 276 (C.A.A.F. 1999).    This

Court has previously found “withdrawal . . . for the purpose of

judicial economy by trying all known charges in a single trial”

to be proper where an accused was not unfairly prejudiced.

United States v. Koke, 34 M.J. 313, 315 (C.M.A. 1992).

“Ordinarily all known charges should be referred to a single

court-martial.”   R.C.M. 601(e)(2) Discussion; see also R.C.M.

401(c) Discussion (“If charges are referred to a court-martial,

ordinarily all known charges should be referred to a single

court-martial.”).

     Here, the convening authority stated that the withdrawal

was out of “anticipation of the possibility that this new

allegation will cause [Appellant] to become the subject of a

                                  15
United States v. Leahr, 14-0265/CG


newly preferred additional charge” and out of a desire for

Appellant “to be tried on all charges at a single trial to best

serve the interests of justice and promote judicial economy.”

This reasoning aligns with the proper reason of promoting

judicial economy and referring all known charges to a single

court-martial.   See Koke, 34 M.J. at 315; R.C.M. 601 Discussion.

Consequently, under the facts of this case, the convening

authority’s reasoning for the withdrawal and subsequent

dismissal was proper.

     Additionally, the withdrawal and dismissal did not unfairly

prejudice Appellant.    In Underwood, this Court found that

withdrawal and re-referral of charges did not prejudice the

appellant where the second court-martial was the same type as

the first, the same military judge presided over the second

court-martial, the appellant did not “lose the benefit of a

favorable trial ruling,” the appellant “was not in pretrial

confinement during the withdrawal and re-referral process,” and

the appellant made no motion at the second court-martial based

on prejudicial delay.    50 M.J. at 276.

     This case presents a similar fact pattern.   The new

charges, like the dismissed charges, were referred to a general

court-martial.   The charges were not referred to a new military

judge, nor did Appellant lose the benefit of favorable rulings.

Although Appellant remained subject to conditions on his liberty

                                 16
United States v. Leahr, 14-0265/CG


during the period between withdrawal and re-referral, he was not

in confinement.   Lastly, the delay did not harm Appellant’s

ability to present his defense at the second court-martial.

     Appellant nonetheless argues that the withdrawal of charges

was improper because the convening authority’s reason was to

circumvent R.C.M. 601(e)(2)’s joinder rule.   Under this rule,

while “[a]dditional charges may be joined with other charges for

a single trial at any time before arraignment,” “[a]fter

arraignment of the accused upon charges, no additional charges

may be referred to the same trial without consent of the

accused.”   R.C.M. 601(e)(2) (emphasis added).

     The problem with Appellant’s argument, however, is the fact

that the convening authority also dismissed the charges after

the withdrawal.   Once charges are dismissed, “[r]einstitution of

charges requires the command to start over” at a new trial,

Britton, 26 M.J. at 26, which is precisely what happened here.

                           IV.   DECISION

     The decision of the United States Coast Guard Court of

Criminal Appeals is affirmed.




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United States v. Leahr, No. 14-0265/CG


     STUCKY, Judge, with whom ERDMANN, Judge, joins

(dissenting):

     I agree with the majority that the Government may withdraw

and reprefer charges for the lawful purpose of “judicial

economy” and that the Government demonstrated no nefarious

purpose in prosecuting the case against Appellant.    In my view,

though, the convening authority’s “withdrawal and dismissal” was

too ambiguous to be understood as an effective dismissal.    Under

the circumstances of this case, the convening authority only

accomplished withdrawal.

     Where “it is intended to refer [charges] anew promptly,”

withdrawal rather than dismissal is appropriate.    R.C.M. 604(a)

Discussion.   The convening authority’s stated purpose of

withdrawing charges on September 1, 2011, was “[i]n anticipation

of” possible repreferral of charges joined by a new charge from

the fresh allegation.    All his actions support this anticipation

of prompt repreferral.   Thus, withdrawal was the correct action

in this case, and it is not clear that the convening authority

intended the separate and distinct action of dismissal.

     The factors that this Court identified in United States v.

Britton, 26 M.J. 24, 25-26 (C.M.A. 1988), indicate that the

convening authority only withdrew charges here.    First, the

convening authority did not clearly act to dismiss the charges.

His confluence of “withdraw[ing] and dismiss[ing]” charges
United States v. Leahr, No. 14-0265/CG


indicates that he did not necessarily acknowledge the difference

and the legal effect of the two distinct actions.    When the

convening authority repreferred charges, he stated they were “to

be tried in conjunction with” the first charges, but the new

charges were nearly identical to the first set except for one

additional specification.   The convening authority’s statement

is nonsensical because if the new charges were meant to add on

to the first set of charges, they would be duplicative; and they

could not be tried together with the first set because those had

purportedly been withdrawn.

     The majority relies upon two facts to show “affirmative

action” that the convening authority took:    (1) he dismissed

charges and (2) Appellant was notified that the original charges

were dismissed.    United States v. Leahr, __ M.J. __, __ (10)

(C.A.A.F. 2014).    Each of these facts is mischaracterized.     The

convening authority signed a document titled “Withdrawal and

Dismissal of Charges Against AST2 Jaason M. Leahr, USCG,” and

then he gave a copy of that contradictory document to Appellant.

Motion to Dismiss for Lack of Speedy Trial at 3-4, United States

v. Leahr, (C.G.C-M.G. Oct. 26, 2011).    Neither fact

substantiates the claim that the convening authority’s action

was clear.

     Second, very little time -– merely five days, only two of

which were business days -- passed between withdrawal and


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United States v. Leahr, No. 14-0265/CG


repreferral of charges here.   This is a longer time than in

Britton, 26 M.J. at 26, when charges were withdrawn and

repreferred on the same day, but not enough time to determine

whether the convening authority had dismissed charges when he

withdrew them and clearly “intended to refer them anew

promptly.”   See R.C.M. 604(a) Discussion.

     Third, the accused remained under the same constraints as

when the first charges were preferred and he was never returned

to full duty status.   See Britton, 26 M.J. at 26 (“Dismissal

. . . contemplate[s] that the accused no longer faces charges,

that conditions on liberty and pretrial restraint are lifted,

and that he is returned to full-time duty with full rights as

accorded to all other servicemembers.”).     In United States v.

Anderson, 50 M.J. 447, 448 (C.A.A.F. 1999), the convening

authority clearly dismissed charges against an accused, and this

Court held that continued imposition of restraint did not

undermine that clear action.   Here, though, the convening

authority took no clear action.   Rather, three days before

withdrawing charges, the convening authority stated that the

conditions on Appellant’s liberty would “continue to apply”

(emphasis added).   The Government’s argument that a new charge

of “grabbing and squeezing [a woman’s] arm,” necessitated

imposition of restraint on Appellant -- apart from the original

charges -- is unpersuasive.    And rather than being returned to


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full duty status, Appellant was reassigned on temporary duty to

Sector Mobile and assigned to work out of his rating; he did not

return to a supervisory role or to his position as a rescue

swimmer.

      In Britton, we concluded that if a convening authority

wants to pursue previously dismissed charges at court-martial,

“[t]he charges must be re-preferred, investigated, and referred

in accordance with the Rules for Courts-Martial, as though there

were no previous charges or proceedings.”   Britton, 26 M.J. at

26.   In Appellant’s case, preferred, investigated, and referred

charges were withdrawn, then repreferred and rereferred, but not

investigated except for the one additional charge.    Britton

requires that all three steps must be started anew.    26 M.J. at

26.   It is true that an accused may waive this right, see

Article 32(c), UCMJ, 10 U.S.C. § 832 (2012), but in this case it

was not “as though” they were new charges for which Appellant

waived the Article 32 investigation.   Britton, 26 M.J. at 26.

On the whole, the analysis of the Britton factors demonstrates

that the convening authority accomplished nothing more than

withdrawal of charges.

      Withdrawal of charges does not reset the speedy trial clock

under R.C.M. 707.   Because the Government violated Appellant’s

rights by bringing him to trial more than 120 days after the

original preferral of charges against him, Appellant is entitled


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United States v. Leahr, No. 14-0265/CG


to a dismissal of charges.   See R.C.M. 707(d).   Considering the

age of this case, the proper remedy would be to dismiss the

charges with prejudice.   See United States v. Dooley, 61 M.J.

258, 264 (C.A.A.F. 2005) (holding that the military judge did

not abuse his discretion in dismissing charges with prejudice

under R.C.M. 707(d), in part because reprosecution would only

cause further delay and because the appellant already served his

adjudged sentence to confinement, so the Government had

diminished interest in reprosecuting him).

     I respectfully dissent.




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