                             IN THE CASE OF


                       UNITED STATES, Appellee

                                    v.

           Allen L. DOOLEY, Photographer’s Mate Second Class
                       U.S. Navy, Appellant

                              No. 05-6002

                       Crim. App. No. 200401792

       United States Court of Appeals for the Armed Forces

                          Argued May 17, 2005

                        Decided August 3, 2005

GIERKE, C.J., delivered the opinion of the Court, in which
CRAWFORD, EFFRON, BAKER, and ERDMANN, JJ., joined.

                                 Counsel

For Appellant:    Captain Richard A. Viczorek, USMC (argued).

For Appellant: Major Kevin C. Harris, USMC (argued); Commander
Charles N. Purnell II, JAGC, USN (on brief).


Military Judge:   Lewis T. Booker Jr.




       This opinion is subject to revision before final publication.
United States v. Dooley, No. 05-6002/NA


      Chief Judge GIERKE delivered the opinion of the Court.

      The military judge dismissed Appellant’s case with

prejudice based on a violation of Rule for Courts-Martial

(R.C.M.) 707, the right to a speedy trial.    The United States

Navy-Marine Corps Court of Criminal Appeals (CCA) agreed that a

violation of R.C.M. 707 had occurred but disagreed with the

military judge’s decision to dismiss with prejudice and reversed

his decision.1    This case illustrates the difficulty an

intermediate appellate court faces when balancing the deference

due a military judge under the abuse of discretion standard with

the potential drastic remedy of dismissal with prejudice.   We

granted review to determine if the lower court erred in

reversing the military judge’s decision.2

      We hold that the military judge did not abuse his

discretion in dismissing Appellant’s case with prejudice.   We

therefore reverse the opinion of the Navy-Marine Corps Court of

Criminal Appeals and reinstate the decision of the military

judge to dismiss with prejudice.




1
  See United States v. Dooley, No. NMCCA 200401792, 2005 CCA
LEXIS 90, 2005 WL 1389137 (N-M. Ct. Crim. App. Mar. 23, 2005).
2
  More specifically, we granted review of the following issue:
     Whether the Navy-Marine Corps Court of Criminal Appeals
     erred by applying the wrong standard of review when it
     reversed the military judge’s decision to dismiss the
     charge and specification with prejudice?
United States v. Dooley, 61 M.J. __, No. 05-6002, 2005 CAAF
LEXIS 458 (C.A.A.F. May 5, 2005).

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United States v. Dooley, No. 05-6002/NA


                          PROCEDURAL BACKGROUND

      In 1998, Appellant was tried and convicted of the receipt

and possession of child pornography in violation of Article

134(3), Uniform Code of Military Justice (UCMJ).3       Appellant

served seven months of confinement.       This Court set aside his

conviction on June 29, 2004,4 based on our decision in United

States v. O’Connor.5     The Judge Advocate General of the Navy then

returned the case to the convening authority, who decided to

retry Appellant for the receipt and possession of child

pornography.    At the first session of the special court-martial

on December 10, 2004, the military judge found a violation of

Appellant’s right to a speedy trial.       The military judge

performed an analysis of the factors listed in R.C.M. 7076 and

dismissed the case with prejudice.        The Government filed an

appeal under Article 62, UCMJ,7 and the Navy-Marine Corps Court

of Criminal Appeals subsequently reversed the military judge’s




3
  10 U.S.C. § 934 (2000). Appellant was convicted of violating
18 U.S.C. § 2252A, incorporated under Article 134, UCMJ.
4
  United States v. Dooley, 60 M.J. 130 (C.A.A.F. 2004).
5
  58 M.J. 450, 453 (C.A.A.F. 2003).
6
  R.C.M. 707 states that, “[i]n determining whether to dismiss
charges with or without prejudice, the court shall consider,
among others, each of the following factors: the seriousness of
the offense; the facts and circumstances of the case that lead
to dismissal; the impact of a reprosecution on the
administration of justice; and any prejudice to the accused
resulting from the denial of a speedy trial.” R.C.M. 707(d).
7
  10 U.S.C. § 862 (2000).

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United States v. Dooley, No. 05-6002/NA


ruling, determining that he abused his discretion in dismissing

the case with prejudice.8

I.   The military judge’s decision to dismiss with prejudice9

      The military judge first concluded that the Government had

violated R.C.M. 707 because Appellant was arraigned more than

120 days after the convening authority received the record.         The

military judge found that the record of trial, along with this

Court’s opinion, was received at the headquarters of the

Commander, Naval Air Force, U.S. Atlantic Fleet (COMNAVAIRLANT)

on July 13, 2004.     The Government’s docketing request, placed on

the docket on November 9, 2004, did not request arraignment

until November 15.     The military judge thus determined that the

docketing request was filed 139 days after the decision and 125

days after the record was received at COMNAVAIRLANT, and that

accordingly the case must be dismissed.

      The military judge then considered the four factors listed

under R.C.M. 707 to determine whether the dismissal should be

with prejudice.     First, the military judge considered the

seriousness of the offense.       He stated that the “allegations

against [Appellant] are serious, both in terms of the punishment



8
  Dooley, 2005 CCA LEXIS 90, 2005 WL 1389137.
9
  We note that the military judge’s order was originally missing
page four when it was filed with the Navy-Marine Corps CCA as
Appellate Exhibit XVI. On January 26, 2005, appellate
government counsel filed a Motion to Attach with the CCA
correcting the error.

                                      4
United States v. Dooley, No. 05-6002/NA


that they could have carried but for Article 63, UCMJ, . . .,

and for the societal norms that they implicate.”

      Considering the factors that led to dismissal, the military

judge acknowledged that the Government’s efforts to review the

case were “praiseworthy,” and that the “efforts to minimize the

impact on the accused are to be applauded.”      But he found that

“inordinate delay occurred at several points in the process.”

More specifically, the military judge found that the “courtesy

screening”10 of the “relatively small record of trial (under 150

pages)” took over a month.       Then, two more months elapsed

“pending the referral decision; granted, some of that time was

necessary to locate the evidence and to evaluate it, but the

Government has not made a convincing case that all of that time

was necessary.”     Furthermore, it took nearly two weeks for the

Government to route a docketing request.      The military judge

also found that “[e]ven scheduling the hearing on the speedy

trial motion revealed some lack of urgency on the part of the

Government . . . .”      Finally, he recognized that “the Defense



10
  Although the military judge does not define the time period
which he labeled as the “courtesy screening,” it appears that
the military judge was most likely referring to the period
between July 20 and August 23. Based on the testimony of
Lieutenant Biles, who was working in the COMNAVAIRLANT Staff
Judge Advocate Office at the time, this time elapsed while the
Trial Service Office was reviewing Appellant’s case and
determining whether to recommend reprosecuting Appellant. About
two more months then elapsed between August 23 and October 22,
when Appellant was recalled to be reprosecuted.

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United States v. Dooley, No. 05-6002/NA


had by that point requested a continuance, but the Government

should still have been prepared to go at an earlier date.”

     The third R.C.M. 707 factor is the effect of a retrial on

the administration of justice.        The military judge asserted that

R.C.M. 707 would lose its plain meaning if a trial is allowed to

proceed in this case.      Interpreting the rule, he focused on the

accountability of the convening authority over his subordinate

servicemembers.     The military judge rejected the Government’s

implicit attempt to insulate the convening authority from the

delay caused by subordinates.        He noted that the rule refers to

a “responsible convening authority,” rather than a “legal

advisor to the responsible convening authority.”       If a convening

authority was not held accountable for time awaiting legal

advice, the military judge reasoned, “[a] command without a

staff judge advocate attached would be able to drag out

proceedings ad infinitum, waiting on the desired legal advice.

Commands with labyrinthe routing systems would be given a pass

from the requirements of the rule.”       The military judge

concluded by stating that he does “not fear that commanders will

bypass necessary staff advice in order to comply with the rule;

rather, the court believes that commanders will impose

reasonable, attainable milestones for action in a given case.”




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United States v. Dooley, No. 05-6002/NA


      Finally, the military judge considered “any prejudice

resulting [to Appellant] from [the] denial of a speedy trial.”11

He found that Appellant is “suffering prejudice daily.”

Recognizing that Appellant is earning pay and allowances

established by law and that the Government put forth

“substantial effort” to minimize the impact on Appellant, the

military judge found that “he is in fact being subjected to

punishment in the Transient Personnel Unit without due process.

He is a photographer’s mate who is not permitted to work in his

rating.   He is a second class petty officer who is not

supervising troops.”

II.   The Navy-Marine Corps Court of Criminal Appeals’ review of

the military judge’s decision

      The CCA adopted the military judge’s finding that more than

120 days passed between the date the convening authority

received the record of trial and the date the Government was

prepared to arraign Appellant.12          Thus, it agreed that there was

a violation of R.C.M. 707.13       But the lower court concluded that

the military judge abused his discretion in dismissing with

prejudice.14




11
   See R.C.M. 707(d).
12
   See Dooley, 2005 CCA LEXIS 90, at *5-*7, 2005 WL 1389137, at
*2.
13
   Id.
14
   2005 CCA LEXIS 90, at *10-*16, 2005 WL 1389137, at *4-*5.

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United States v. Dooley, No. 05-6002/NA


      Regarding the first factor under R.C.M. 707, the CCA “fully

concur[red]” with the military judge’s finding that Appellant’s

crimes were serious.15      However, the court disagreed with the

military judge’s analysis of the other three factors.      Regarding

the first factor -– the facts and circumstances that led to the

delay -- the CCA determined that the military judge erred by

imposing a higher standard on the Government under R.C.M. 707

than is imposed under Article 10, UCMJ.16      Under Article 10, it

must be shown that the Government did not proceed with

“reasonable diligence”17 or that it acted with “intentional

dilatory conduct.”18     The CCA found no evidence of either in this

case.19   Furthermore, “brief periods of inactivity in an

otherwise active prosecution are not unreasonable or

oppressive.”20    Concluding its discussion of the first factor,

the CCA disagreed with the military judge that “this case of

‘under 150 pages’ should not have taken so long to review.”         The

CCA stated that, because the case was reversed based on this

Court’s decision in O’Connor, “the Government was obligated to

locate the evidence and evaluate it to determine whether the




15
   2005 CCA LEXIS 90, at *10, 2005 WL 1389137, at *4.
16
   2005 CCA LEXIS 90, at *11-*12, 2005 WL 1389137, at *4.
17
   United States v. Kossman, 38 M.J. 258, 262 (C.M.A. 1993).
18
   United States v. Edmond, 41 M.J. 419, 422 (C.A.A.F. 1995).
19
   Dooley, 2005 CCA LEXIS 90, at *11, 2005 WL 1389137, at *4.
20
   Id. (quoting United States v. Tibbs, 15 C.M.A. 350, 353, 35
C.M.R. 322, 325 (1965)).

                                      8
United States v. Dooley, No. 05-6002/NA


images [Appellant] had received and possessed were images of

actual children.”21

       Discussing the effect of a retrial on the administration of

justice, the CCA asserted that the military judge’s analysis

“seems wide of the mark,” because “he focuses solely on the

question of when a responsible CA receives the record and the

opinion authorizing a rehearing.          That simply addresses the

question of when the speedy trial clock began to tick in this

case, and not the impact on the administration of justice.”22

The lower court noted that missing from the military judge’s

analysis is any consideration of the fact that this case was

returned because the Supreme Court, in Ashcroft v. Free Speech

Coalition,23 struck down a portion of the statute Appellant was

convicted of violating.24      The CCA then determined that the

effect of a retrial is “relatively neutral . . . . Due to the

limited holding in Free Speech Coalition, the Government is

allowed an opportunity to retry [Appellant] and [Appellant]

would be accorded all his legal rights.”25

       Moreover, the lower court disagreed with the military

judge’s assessment of prejudice against Appellant.26         The CCA

agreed with the Government that any prejudice experienced by

21
     2005 CCA   LEXIS 90, at *12, 2005 WL 1389137, at *4.
22
     Id.
23
     535 U.S.   234 (2002).
24
     2005 CCA   LEXIS 90, at *12-*13, 2005 WL 1389137, at *4.
25
     2005 CCA   LEXIS 90, at *13, 2005 WL 1389137, at *4.
26
     2005 CCA   LEXIS 90, at *13-*14, 2005 WL 1389137, at *5.

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United States v. Dooley, No. 05-6002/NA


Appellant “is incidental to his being activated to stand trial

and not a result of any delay on the part of the Government.”27

The lower court noted that “also missing from the military

judge’s analysis is consideration of the fact that” Appellant

was not on active duty for 100 of the 125 days it took the

Government to be prepared to arraign Appellant from the date the

“responsible CA received the record.”28    Rather, Appellant was

recalled to active duty on October 22, 2004, and the Government

sought to arraign him on November 15, twenty-five days later.29

       Finally, the CCA noted that the military judge did not

consider the Discussion to R.C.M. 707(c)(1), which provides that

the excludable periods of time from the 120-day calculation

include the “time to process a member of the reserve component

to active duty for disciplinary action.”30    The CCA finds the

situation in this case analogous to recalling a servicemember to

active duty.31    It asserted that, similar to the situation in

United States v. Dies,32 “the CA could have exercised his

discretion and excluded a portion of the period of time during

which [Appellant] was still in an inactive duty status, avoiding

this entire R.C.M. 707 issue.”33


27
     2005 CCA LEXIS 90, at *13, 2005 WL 1389137, at *5.
28
     2005 CCA LEXIS 90, at *13-*14, 2005 WL 1389137, at *5.
29
     2005 CCA LEXIS 90, at *14, 2005 WL 1389137, at *5.
30
     Id. (citing R.C.M. 707(c)(1) discussion).
31
     Id.
32
     45 M.J. 376, 378 (C.A.A.F. 1996).
33
     Dooley, 2005 CCA LEXIS 90, at *14, 2005 WL 1389137, at *5.

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United States v. Dooley, No. 05-6002/NA


      The CCA concluded that “this case is not a close call.”34

It held, therefore, “that the military judge clearly abused his

discretion when he dismissed the Charge and Specifications . . .

with prejudice.”35



                                 DISCUSSION

      Under R.C.M. 707, the military judge is directed to apply

certain factors in determining a remedy for a speedy trial

violation, and then decide whether those factors lead to the

conclusion that the case should be dismissed with or without

prejudice.    Under an abuse of discretion standard, mere

disagreement with the conclusion of the military judge who

applied the R.C.M. 707 factors is not enough to overturn his

judgment.    The standard requires that the military judge be

clearly wrong in his determination of the facts or that his

decision be influenced by an erroneous view of the law.36    We

conclude that, in this case, the Navy-Marine Corps Court of

Criminal Appeals erred in reversing the military judge’s

decision because it applied an improper standard of review.




34
   2005 CCA LEXIS 90, at *15, 2005 WL 1389137, at *5.
35
   Id.
36
   See United States v. Sullivan, 42 M.J. 360, 363 (C.A.A.F.
1995).

                                     11
United States v. Dooley, No. 05-6002/NA


I.    The standard of review

       United States v. Gore37 presented us with an issue similar

to the one in this case.       In Gore, the military judge dismissed

all charges with prejudice as a remedy for unlawful command

influence and the Government appealed, pursuant to Article 62,

UCMJ.38    Although the CCA agreed with the military judge that

there was unlawful command influence, it determined that the

military judge abused his discretion in dismissing the case with

prejudice.39    We stated that, because neither the lower court nor

the Government challenged the finding of unlawful command

influence, the real issue was “whether the military judge erred

in fashioning the remedy.”40

       Similarly, in this case, neither the Government nor the

lower court disputes that a violation of R.C.M. 707 occurred.

Rather, both maintain that the case should not have been

dismissed with prejudice and that the Government should have the

opportunity to retry Appellant.           The pertinent question for our

review, therefore, is whether the military judge erred in his

conclusion that an analysis of the factors listed in R.C.M. 707

supports dismissal of Appellant’s case with prejudice.




37
     60 M.J. 178 (C.A.A.F. 2004).
38
     Id. at 179.
39
     Id.
40
     Id. at 186-87.

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United States v. Dooley, No. 05-6002/NA


      In Gore, we explained the deference that must be accorded a

military judge under the abuse of discretion standard.   We

stated:

      An abuse of discretion means that when judicial action is
      taken in a discretionary manner, such action cannot be set
      aside by a reviewing court unless it has a definite and
      firm conviction that the court below committed a clear
      error of judgment in the conclusion it reached upon a
      weighing of the relevant factors . . . . We will reverse
      for an abuse of discretion if the military judge’s findings
      of fact are clearly erroneous or if his decision is
      influenced by an erroneous view of the law . . . . Further,
      the abuse of discretion standard of review recognizes that
      a judge has a range of choices and will not be reversed so
      long as the decision remains within that range.41

      “[D]ismissal is a drastic remedy and courts must look to

see whether alternative remedies are available.”42   But dismissal

is “appropriate when an accused would be prejudiced or no useful

purpose would be served by continuing the proceedings.”43

Deference to the military judge’s decision is particularly

prudent in those cases when a violation of R.C.M. 707(d) has

occurred because, as the legislative history of the Speedy Trial

Act44 demonstrates, Congress clearly intended trial judges to


41
   Gore, 60 M.J. at 187 (internal quotations and citations
omitted).
42
   Id. (citing United States v. Cooper, 35 M.J. 417, 422 (C.M.A.
1992)).
43
   Id. (citing United States v. Green, 4 M.J. 203, 204 (C.M.A.
1978)).
44
   R.C.M. 707(d) is based on the Speedy Trial Act of 1974, 18
U.S.C. § 3162 (2000). See Manual for Courts-Martial, United
States (2002 ed.) Analysis of Rules of Courts-Martial A21-42.
Whether to require dismissal with prejudice in certain
circumstances was the subject of substantial debate when
Congress considered the Speedy Trial Act. See United States v.

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United States v. Dooley, No. 05-6002/NA


have “guided discretion” whether to dismiss with or without

prejudice.45   Furthermore, “neither remedy was given priority.”46

Rather, a military judge’s decision is guided by the factors

articulated in R.C.M. 707 and can be reversed only for a clear

abuse of discretion.      More specifically, the military judge’s

decision in this case should be affirmed unless his factual

findings are clearly erroneous or his decision in applying the

R.C.M. 707 factors was influenced by an incorrect view of the

law.47

II.   Application of the R.C.M. 707 factors

      Under R.C.M. 707, the first factor that a military judge

must consider in determining whether to dismiss with prejudice

is the seriousness of the offense.        In this case, the military

judge and the CCA agree that Appellant’s crimes were serious.



Taylor, 487 U.S. 326, 334 (1988). “[P]roponents of uniformly
barring reprosecution argu[ed] that without such a remedy the
Act would lack any real force, and opponents express[ed] fear
that criminals would unjustly escape prosecution.” Id. (citing
Anthony Partridge, Legislative History of Title I of the Speedy
Trial Act of 1974 31-33 (1980)). The compromise was that the
decision whether to dismiss with prejudice would be left to the
discretion of trial judges, guided by certain factors. Id. at
335.
45
   Taylor, 487 U.S. at 335.
46
   Id.; see also Edmond, 41 M.J. at 421 (noting that “[n]either
the dismissal with prejudice nor without prejudice has a
priority”).
47
   See Taylor, 487 U.S. at 337 (“Factual findings . . . are . . .
entitled to substantial deference and will be reversed only for
clear error . . . . [W]hen the statutory factors are properly
considered, and supporting factual findings are not clearly in
error, the district court’s judgment of how opposing
considerations balance should not lightly be disturbed.”).

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United States v. Dooley, No. 05-6002/NA


The finding that the receipt and possession of child pornography

is a serious offense, in its impact on both victims and society,

is not clearly erroneous.

      In analyzing the facts and circumstances that led to his

decision to dismiss with prejudice, the military judge weighed

the efforts of the Government that he found “praiseworthy” and

“to be applauded” against the factors that contributed to the

delay.   He clearly articulated the basis for his findings –-

that, despite the good efforts by the Government, all the

elapsed time was not “necessary” and it showed a “lack of

urgency” on the part of the Government.       We agree with the CCA

that the military judge did not find “intentional dilatory

conduct on the part of the Government” and that he did not

explicitly state that the Government’s attitude was “truly

neglectful.”48    Whether the military judge used these exact

phrases, however, is not the test under the abuse of discretion

standard.    Rather, the question is whether his findings of fact

were “‘clearly erroneous or if his decision is influenced by an

erroneous view of the law.’”49       The CCA did not find that the

military judge’s factual findings were clearly erroneous.

Rather, it stated the military judge’s findings were factually

48
   See Edmond, 41 M.J. at 421-22 (holding that the military judge
did not abuse his discretion in dismissing charges without
prejudice under R.C.M. 707 because there was no “intentional
dilatory conduct” by the Government and there was little
prejudice suffered by the appellee).
49
   Gore, 60 M.J. at 187 (citations omitted).

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United States v. Dooley, No. 05-6002/NA


correct and “clearly supported by th[e] record.”50     Because the

CCA was essentially asserting that it disagreed with the

military judge that the Government’s actions did not constitute

“truly neglectful” conduct, we agree with Appellant that the CCA

was substituting its judgment for that of the military judge.

Therefore, the CCA erred by performing a de novo review of the

“facts and circumstances that le[d] to dismissal.”51

      The third factor to consider under R.C.M. 707(d) is the

effect of the retrial on the administration of justice.52     We

believe the military judge was correct to note that the plain

meaning of R.C.M. 707 may be thwarted if trial is allowed to

proceed in this case.      The rule requires the military judge to

dismiss the case but, if the military judge dismisses without

prejudice and the Government decides to reprosecute the accused,

the remedy leads to further delay.

      We agree with the CCA’s interpretation that the “effect of

a retrial is relatively neutral in this case.”53     On the one


50
   Dooley, 2005 CCA LEXIS 90, at *6, 2005 WL 1389137, at *2.
51
   R.C.M. 707(d).
52
   See generally United States v. Scott, 743 F. Supp. 400, 407-08
(D. Md. 1990). The court determined there was a “rather even
balance” between the arguments of the two parties regarding the
administration of justice factor. It weighed the defendant’s
argument –- that the justice system already has mechanisms to
ensure that the defendant will be punished for his alleged
misconduct –- against the Government’s argument –- that a
defendant will be able to avoid prosecution by entering plea
negotiations and refusing Government offers until a speedy trial
violation has occurred.
53
   Dooley, 2005 CCA LEXIS 90, at *13, 2005 WL 1389137, at *4.

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United States v. Dooley, No. 05-6002/NA


hand, the Government’s interest in reprosecuting Appellant is

diminished because he served seven months of confinement in

1998.    Thus, even if Appellant is reprosecuted and convicted, he

cannot serve any more confinement.        On the other hand,

dismissing the case with prejudice means that Appellant will no

longer be a “convicted” possessor of child pornography due to

the 2004 decision to overturn his conviction.       Additionally, as

noted by the CCA, his conviction was overturned because of the

Supreme Court’s holding in Ashcroft v. Free Speech Coalition.

If Appellant is retried, the Government would have the

opportunity to retry him in light of the new legal precedent and

Appellant would not be convicted based on an erroneously

overbroad definition of child pornography.

        Although the CCA properly interpreted the effect of retrial

on the administration of justice, it did not clearly articulate

an appropriate basis to overturn the military judge’s decision.54

Rather than determining that the military judge was clearly

erroneous in any factual finding or that his decision was based

on an incorrect view of the law, the CCA stated that it did not

“concur” with the military judge’s decision and that it found

the effect of the retrial relatively neutral.55       Thus the CCA

failed to apply the correct legal standard in reversing the

ruling of the military judge.

54
     2005 CCA LEXIS 90, at *11-*15, 2005 WL 1389137, at *4-*5.
55
     2005 CCA LEXIS 90, at *12-*13, 2005 WL 1389137, at *4.

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United States v. Dooley, No. 05-6002/NA


      The final factor that must be considered under R.C.M.

707(d) is prejudice to the accused.       Prejudice may take many

forms, thus “such determinations must be made on a case-by-case

basis in the light of the facts.”56       Prejudice can include any

detrimental effect on Appellant’s trial preparation,57 or any

impact on the right to a fair trial.58       It can also include any

restrictions or burdens on his liberty,59 such as disenrollment

from school or the inability to work due to withdrawal of a

security clearance.60     Regarding prejudice to Appellant, the

military judge clearly articulated that he found Appellant was

“suffering prejudice daily.”       He found that Appellant was “in

fact being subjected to punishment in the Transient Personnel

Unit without due process,” because he is a photographer’s mate

not allowed to work in his rating and a second class petty

officer not permitted to supervise troops.

      The CCA stated that it “disagree[ed] with the assessment by

the military judge” and that it “concur[ed]” with the trial

counsel’s argument that any prejudice suffered by Appellant is




56
   Taylor, 487 U.S. at 341 n.13.
57
   Id. at 341.
58
   Edmond, 41 M.J. at 422; see also Gore, 60 M.J. at 187-88
(affirming the military judge’s dismissal with prejudice where
the military judge identified the extent and negative impact of
the unlawful command influence on the appellant’s right to a
fair trial).
59
   Taylor, 487 U.S. at 341.
60
   Edmond, 41 M.J. at 422.

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United States v. Dooley, No. 05-6002/NA


incidental to recall for trial.61         Whether the CCA disagrees with

the military judge or concurs with the trial counsel is not the

standard of review.      The military judge clearly articulated his

reasoning for believing Appellant was being unfairly prejudiced.

Therefore, the CCA could not reverse the military judge’s

prejudice finding absent a determination that it was clearly

erroneous.

       Furthermore, other evidence of prejudice was on the record

and before the military judge.        Approximately sixteen pages of

the record was devoted to exploring the prejudice Appellant was

suffering because he was recalled to active duty after five

years of appellate leave.62       We note these other forms of

prejudice solely to emphasize that the military judge was in the

best position to assess the prejudice Appellant was suffering

because he questioned Appellant extensively about his life since

being recalled.     We need not, however, consider these factors in

concluding that the factual findings of the military judge were

neither clearly erroneous nor based on an incorrect view of the

law.   Therefore, the military judge did not abuse his discretion

61
  Dooley, 2005 CCA LEXIS 90, at *13, 2005 WL 1389137, at *5.
62
  According to Appellant’s testimony, not only did he lose his
job, but because he was informed on October 14 that he would be
recalled on October 18, he also lost his seniority status and
any chance of returning to that job. Because he did not give
the required two weeks notice before quitting, his boss was
“shocked and amazed” at Appellant being recalled and has failed
to contact him since. Additionally, Appellant’s fiancée, a
homemaker, lost the benefits she was entitled to under
Appellant’s former employment and began receiving welfare.

                                     19
United States v. Dooley, No. 05-6002/NA


and the CCA erred in reversing his decision to dismiss with

prejudice.

                                  DECISION

     The decision of the Navy-Marine Corps Court of Criminal

Appeals is reversed.      The decision of the military judge is

reinstated.




                                     20
