

   
   
   
   U.S. v. Anderson



United States, Appellee
v.
Warren B. ANDERSON, Staff Sergeant
U.S. Marine Corps, Appellant
 
No. 98-0092/MC
Crim. App. No. 96-0467
 
United States Court of Appeals for
the Armed Forces
Argued October 6, 1998
Decided June 29, 1999

CRAWFORD, J., delivered the opinion
of the Court, in which COX, C.J., and GIERKE and EFFRON, JJ., joined. SULLIVAN,
J., filed an opinion concurring in the result.
 


Counsel
For Appellant: Major Dale E. Anderson,
USMC (argued).
For Appellee: Lieutenant Kevin S.
Rosenberg, JAGC, USNR
(argued); Commander D.H. Myers,
JAGC, USN (on brief); Colonel Charles W. Dorman, USMC.
Military Judge: J.A. Bukauskas
 


THIS OPINION IS
SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.


Judge CRAWFORD delivered the opinion
of the Court.
Contrary to his pleas, appellant was
convicted in a general court-martial with officer and enlisted members,
of sodomy and indecent acts with a child, W. The convening authority approved
the sentence of a dishonorable discharge, 10 years confinement, total
forfeitures, and reduction to the lowest enlisted grade. The Court of Criminal
Appeals affirmed the findings and sentence. 47 MJ 576 (1997). We granted
review of the following issue:



WHETHER THE LOWER COURT ERRED WHEN
IT HELD
THAT THE MILITARY JUDGE DID NOT ERR
IN DENYING
THE DEFENSE MOTION TO DISMISS THE
CHARGES FOR
LACK OF A SPEEDY TRIAL.



FACTS
On October 28, 1993, appellant was
placed in pretrial confinement after he admitted fondling W. He was released
from pretrial confinement on November 2, 1993, and placed on restriction.
The indecency charge was preferred on November 8, 1993. The restriction
was relaxed to allow unlimited visits from appellants wife on February
2, 1994, and then again on February 11, 1994. But appellant remained in
restrictive status until a trial on the merits. On August 5, 1994, the
original charge was dismissed when W disclosed the sodomy offense for the
first time. At that time, defense counsel notified the Government that
the defense would not object to additional charges being preferred. When
the convening authority was notified, the original charges were withdrawn
and dismissed without prejudice to allow an additional investigation into
the sodomy allegations.
At trial, the defense argued only that
the charges should be dismissed because of a violation of RCM 707, Manual
for Courts-Martial, United States (1994 ed.). In analyzing this argument,
our standard of review is whether the judge abused his discretion in failing
to dismiss the charges. United States v. Hatfield, 44 MJ 22 (1996).
RCM 707(a) provides for a 120-day speedy-trial
rule. The inception of the 120-day period is on the earlier date of "preferral
of charges" or "imposition of restraint under R.C.M. 304(a)(2)-(4)."
RCM 707(b)(3) provides for termination
of the 120-day speedy trial clock upon dismissal or upon release from restraint.
The 120-day clock also stops ticking
when "the accused is brought to trial ... [meaning] arraignment under R.C.M.
904." RCM 707(b)(1). However, "[i]f charges are dismissed ... a new 120-day
time period under this rule shall begin on the date of dismissal...." RCM
707(b)(3)(A). Certain periods are excludable in determining the 120 days,
including "delays approved by a military judge or the convening authority."
RCM 707(c).1
One hundred twenty-three days elapsed
from the date appellants restraint began until his first arraignment on
February 28, 1994. However, appellant concedes the judge correctly excluded
70 days of that time, from November 17, 1993 to January 26, 1994. Final
Brief at 4. Thus, as to the first period of time, there is no violation
of the 120-day rule.
As to the second time period, under
RCM 707(b)(3)(A), once charges are dismissed, absent a subterfuge, the
speedy-trial clock is restarted. In this instance, the speedy-trial clock
was restarted on August 5, 1994. The new clock started on that date, when
appellant was still restricted, because charges were not preferred until
August 10, 1994. This second speedy-trial clock stopped on the second arraignment,
on October 31, 1994. This arraignment took place within 120 days of the
dismissal of the original charges and, thus, the delay did not violate
the 120-day rule.
We reject appellants argument that
the speedy-trial clock should not be reset after dismissal of the charges.
In United States v. Ruffin, 48 MJ 211, 212 (1998), we stated:



If the release is for a significant
period, the 120-day speedy trial period is reset to begin upon preferral
of charges or reimposition of restraint, whichever comes first. If the
release is not for a significant period, the release is not taken into
account, and the beginning of the 120-day speedy trial period is not reset.



In Ruffin, the charges were never
dismissed, but were initially preferred one day after Ruffin had been released
from restraint. In contrast, in this case, the charges were preferred,
dismissed without prejudice, and then re-preferred. Ruffin was based
on RCM 707(b)(3)(B); this case turns on RCM 707(b)(3)(A).
Even though there is continued restraint,
a dismissal of the charges stops the 120-day clock and a new 120-day clock
is
started.2
Therefore, we hold that as to both periods of time, the trial commenced
well within the 120-day period when one provides for the legitimate exclusions.
Additionally, we have considered the
petition for new trial and deny it.
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
FOOTNOTES:
1 In United
States v. Thompson, 46 MJ 472, 476 (1997), we reserved for another
day the question whether the Article 32 officer "stands in the stead of
the convening authority when acting on a request for delay."
2
Accordingly, we reject the Governments concession that it violated RCM
707 as to indecent-acts charge. See Answer to Final Brief at 4.
 
 
SULLIVAN, Judge (concurring in the
result):
The Government concedes that the speedy-trial
requirements of RCM 707, Manual for Courts-Martial, United States, 1984
(1994 edition) were not complied with in this case with respect to Charge
II, the indecent-act specification. Counsel states:




Summary of Argument
Both the Navy-Marine Corps Court of
Criminal Appeals and the military judge correctly ruled that the Government
did not violate UCMJ, Article 10 in appellant's case. The Government acknowledges,
however, that as to Charge II, indecent acts with a female under 16 years
old, it did take more than 120 days to bring appellant to trial because,
even though the Government dismissed what became Charge II, appellant remained
in pretrial restraint. The Government contends that where it complies with
UCMJ, Article 10, but violates RCM 707 by taking longer than 120 days to
bring an accused to trial, this Court should test for prejudice. After
testing for prejudice in appellant's case, this Court should conclude that
he was not prejudiced and affirm the lower court's decision.



Answer to Final Brief at 4.
Later on in its brief the Government
more particularly addressed this issue:



Therefore, the Government did not
violate RCM 707 with respect to Charge I, appellant was not denied a speedy
trial on this charge, and his assignment of error as to Charge I is without
merit. RCM 707.
The Government is responsible for taking
141 days to try appellant on Charge II.4 Appellant's case presents
the peculiar situation where the Government complied with the more rigorous
standards of UCMJ, Article 10, yet due to the unique factual circumstances
of this case took more than 120 days to try appellant on Charge II.
________________
4 Since appellant remained
in continuous
pretrial restraint, the 53 days
attributable to the Government from
October 28, 1994, the day that appellant
was placed in pretrial confinement,
until
his February 28, 1994, arraignment
must be
added to the 88 days August 5 and
October
31, 1994. RCM 707(b)(3)



Answer, supra at 10.
The majority summarily rejects this
specific concession and affirms on the basis that RCM 707 was generally
complied with in this case. It cites United States v. Ruffin, 48
MJ 211, 212 (1998). However, in Ruffin, we noted:



The Drafters' Analysis of RCM 707,
Manual, supra at A21-41, provides the following explanation:
 

Subsection (3)(B) clarifies the intent
of this portion of the rule. The harm to be avoided is continuous pretrial
restraint. See United States v. Gray, 21 MJ 1020 (NMCMR 1986).
Where an accused is released from pretrial restraint for a substantial
period, he will be treated the same as an accused who was not restrained.
Therefore, unless the restraint is reimposed, the 120-day time period will
run from the date of preferral . . . regardless of whether that event occurs
before or after the accused was released from restraint.



II


Appellant was placed in pretrial
restriction on December 10, 1993, and released on February 15, 1994. He
was not subjected to any further pretrial restraint. Charges were preferred
on February 16, 1994, and trial was commenced on August 30, 1994.



(Emphasis added.) We then resolved that
case on the basis of RCM 707(b)(3)(B).
Appellant, however, was subject to
further pretrial restraint. The court-martial rule being applied in appellant's
case by the Government is RCM 707(b)(3)(A). It states:



(3) Events which affect time periods.
(A) Dismissal or mistrial. If
charges are dismissed, or if a mistrial is granted, a new 120-day
time period under this rule shall begin on the date of dismissal or
mistrial for cases in which there is no repreferra1 and cases in which
the accused is in pretrial restraint. In all other cases, a new 120-day
time period under the rule shall begin on the earlier of
 
(i) the date of repreferral;
(ii) the date of imposition of
restraint under RCM 304(a)(2)-(4).
(B) Release from restraint.
If the accused is released from pretrial restraint for a significant period,
the 120-day time period under this rule shall begin on the earlier of
 
(i) the date of preferral of charges;
(ii) the date on which restraint
under RCM 304(a)(2)-(4) is reimposed; or
(iii) the date of entry on active
duty under RCM 204.




(Emphasis added.) Unlike Ruffin,
appellant was not released from pretrial restraint, and the charges were
repreferred. The Government considered this a continuous pretrial restraint
situation and concluded that RCM 707(b)(3)(A) was at least technically
violated in this case.
I think the majority should address
this argument before this case can be properly resolved.

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