UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                            JOHNSON, COOK, and BURTON
                               Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                     First Lieutenant RICHARD L. EASTON
                          United States Army, Appellant

                                   ARMY 20080640

                           Headquarters, Fort Stewart
                Theresa A. Gallagher, Military Judge (arraignment)
                       James L. Pohl, Military Judge (trial)
    Lieutenant Colonel Stacy E. Flippin, Acting Staff Judge Advocate (pretrial)
 Colonel Jonathan C. Guden, Staff Judge Advocate (recommendation & addendum)

For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew M. Miller,
JA; Major Timothy W. Thomas, JA; Major Todd Lindquist, JA (on brief).

For Appellee: Colonel Michael E. Mulligan, JA; Major Christopher B. Burgess, JA;
Major Mary E. Braisted, JA (on brief).

                                      28 July 2011

                              ----------------------------------
                               OPINION OF THE COURT
                              ----------------------------------

JOHNSON, Senior Judge:

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of two specifications of missing movement, in violation of
Article 87, Uniform Code of Military Justice, 10 U.S.C. § 887 [hereinafter UCMJ].
The military judge sentenced appellant to dismissal and confinement for eighteen
months. The convening authority reduced the sentence to confinement to ten months
and approved the remainder of the sentence.

       This case is before the court for review under Article 66, UCMJ. In his brief
to this court, appellant assigned the following error:

             THE MILITARY JUDGE ERRED IN RULING THAT
             APPELLANT’S TRIAL DID NOT VIOLATE HIS
             CONSTITUTIONAL RIGHT AGAINST DOUBLE
             JEOPARDY.
EASTON – ARMY 20080640

We have considered the record of trial, appellant’s assignment of error, the
government’s answer, and the matters appellant personally raised pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). We find the issues raised by
appellant to be without merit and that, under the facts of this case, retrial of
appellant was not barred.

                                 BACKGROUND

      Appellant was assigned as a physician’s assistant with the 3d Infantry
Division based at Fort Stewart, Georgia. In February of 2007, the 3d Infantry
Division was preparing for a fifteen-month deployment to Iraq in support of the
“surge” of forces authorized by the President. 1 In March of 2007, appellant’s unit
deployed to Iraq in successive flights. The first flight, which consisted of “Main
Body I,” departed on 18 March 2007. Appellant was ordered to deploy with Main
Body I, and through design missed movement. The second flight to Iraq consisted of
“Main Body II,” which departed on 19 March 2007. Appellant was again ordered to
deploy, and through design missed movement with Main Body II.

      On 18 April 2007, appellant was charged with two specifications of missing
movement in violation of Article 87, UCMJ, and one specification of conduct
unbecoming an officer in violation of Article 133, UCMJ. On 24 May 2007, the case

1
 On 10 January 2007, the President delivered a speech to the nation describing the
need for a surge of forces in Iraq:

            The violence in Iraq — particularly in Baghdad —
            overwhelmed the political gains the Iraqis had made. Al
            Qaeda terrorists and Sunni insurgents recognized the
            mortal danger that Iraq’s elections posed for their cause.
            And they responded with outrageous acts of murder aimed
            at innocent Iraqis. . . . On September the 11th, 2001, we
            saw what a refuge for extremists on the other side of the
            world could bring to the streets of our own cities. For the
            safety of our people, America must succeed in Iraq. . . .
            Our past efforts to secure Baghdad failed for two principal
            reasons: There were not enough Iraqi and American
            troops to secure neighborhoods that had been cleared of
            terrorists and insurgents, and there were too many
            restrictions on the troops we did have. . . . So I've
            committed more than 20,000 additional American troops
            to Iraq.

President George W. Bush, Address to the Nation on the State of the War in
Iraq (Jan. 10, 2007).


                                         2
EASTON – ARMY 20080640

was referred to a general court-martial located at Fort Stewart, Georgia [hereinafter
“first court-martial”]. Appellant was arraigned in his first court-martial on 12 June
2007, and a motions hearing was held on 29 June 2007. On 16 July 2007, the panel
for the first court-martial was sworn and assembled. The parties conducted voir
dire, the military judge ruled on challenges, and the court recessed shortly thereafter
the same day. No evidence was introduced, and no opening statements were given.
On 18 July 2007, the convening authority withdrew and dismissed the charges from
the first court-martial.

       On 26 March 2008, appellant was again charged with the same two
specifications of missing movement in violation of Article 87, UCMJ. In addition,
appellant was charged with disobeying a lawful order and adultery, in violation of
Articles 90 and 134, UCMJ, respectively. On 9 May 2008, these charges were
referred to a general court-martial located at Fort Stewart, Georgia [hereinafter
“second court-martial”]. Appellant was arraigned in the second court-martial on 20
May 2008. On 8 July 2008, appellant requested trial by military judge alone, and
made several motions, including motions for dismissal due to double jeopardy and
due to an improper withdrawal of charges from the first court-martial. The military
judge denied both motions, and trial proceeded on the merits. The military judge
found appellant guilty of both missing movement specifications under Article 87,
UCMJ, the same specifications as those referred to, and withdrawn from, the first
court-martial. As for the other charges, the military judge dismissed the adultery
charge under Article 134, UCMJ, and found appellant not guilty of disobeying a
lawful order under Article 90, UCMJ.

      In his decision to deny appellant’s motion to dismiss based upon an improper
withdrawal, the military judge made the following findings of fact:

             On 16 July 2007, the court was assembled in the original
             case in these proceedings. At the time, two witnesses with
             firsthand knowledge, Lieutenant Colonel [(LTC) O.] and
             Major [(MAJ) E.], both were stationed in Iraq. [LTC O.]
             was unavailable because he was involved in the
             operational planning and execution of an offensive
             mission by the division that lasted from June until
             September. [MAJ E.’s] position in Iraq was as a
             [p]hysician’s [a]ssistant, which required her continual
             presence there to provide care for [s]oldiers who may have
             been injured even if she was not involved in the particular
             planning process. As such, the judge at the time, and
             under reasonable conditions, found both witnesses
             unavailable. As a result, the judge ordered depositions of
             both witnesses. Immediately prior to the trial after the
             depositions, it was discovered that the depositions



                                           3
EASTON – ARMY 20080640

             somehow did not make it back from Iraq. 2 As such, on 16
             July, after empanelling the members, two witnesses’
             testimony were unavailable to the government. The
             unavailability was based on the operational need for them
             to be in Iraq, an operational need that was not totally
             foreseeable at the time of deployment or the time of
             preferral, and also the failure of the mechanics of logistics
             of getting the depositions back to Fort Stewart. Two days
             later, the convening authority withdrew and dismissed
             without prejudice the charges against the accused.

Based on these findings, the military judge concluded that the convening authority
did not withdraw the charges from the first court-martial for an improper reason,
and, therefore, referral of those charges to the second court-martial was not barred.

       In his decision to deny appellant’s motion for dismissal due to the attachment
of jeopardy in the first court-martial, the military judge made the following findings
of fact:

             [O]n 16 July 2007, a panel was brought into the courtroom
             [in appellant’s first court-martial], sworn and
             assembled. . . . Two days later, the charges were
             withdrawn and dismissed by the convening authority as
             reflected in Appellate Exhibit IV. The court finds . . . that
             no evidence was presented, [and] that no opening
             statements were made . . . .

Based on these findings, the military judge concluded that double jeopardy
did not bar appellant’s second court-martial:

             [U]nder the clear reading of Article 44(c)[, UCMJ],
             there’s no distinction of whether it’s a members case or a
             judge alone case. Under [Article] 44(c)[, UCMJ], the
             jeopardy attaches with the introduction of evidence.
             There was no such introduction of evidence in this case at
             any time prior to dismissal/withdrawal by the convening
             authority, and, therefore, the court finds that jeopardy did
             not attach . . . .




2
  It appears from the record that the video-taped depositions physically returned
from Iraq but displayed no image and were inaudible.


                                           4
EASTON – ARMY 20080640

                                         LAW

       The Fifth Amendment to the United States Constitution commands that “[n]o
person shall . . . be subject for the same offence to be twice put in jeopardy of life or
limb.” U.S. C ONST . amend. V, cl. 2. The primary purpose of the Double Jeopardy
Clause is to “protect the integrity of a final judgment.” United States v. Scott, 437
U.S. 82, 92 (1978) (citing Crist v. Bretz, 437 U.S. 28, 33 (1978)). A separate but
related purpose of the Double Jeopardy Clause is to protect against multiple
prosecutions “even where no final determination of guilt or innocence has been
made.” Scott, 437 U.S. at 92. It is this latter interest that is implicated in the
present appeal.

       The Double Jeopardy Clause represents a “constitutional policy of finality for
the defendant’s benefit.” United States v. Jorn, 400 U.S. 470, 479 (1971) (plurality
opinion). “The underlying idea, one that is deeply ingrained in at least the Anglo-
American system of jurisprudence, is that the State with all its resources and power
should not be allowed to make repeated attempts to convict an individual for an
alleged offense, thereby subjecting him to embarrassment, expense and ordeal and
compelling him to live in a state of anxiety and insecurity, as well as enhancing the
possibility that even though innocent he may be found guilty.” Green v. United
States, 355 U.S. 184, 187–88 (1957).

       Under the Double Jeopardy Clause, “once a defendant is placed in jeopardy
for an offense, and jeopardy terminates with respect to that offense, the defendant
may neither be tried nor punished a second time for the same offense.” Sattazahn v.
Pennsylvania, 537 U.S. 101, 106 (2003) (citing North Carolina v. Pearce, 395 U.S.
711, 717 (1969)). In the military justice system, protections against former jeopardy
are provided through operation of Article 44, UCMJ. Burtt v. Schick, 23 M.J. 140,
142 (C.M.A. 1986).

       In civilian jurisdictions, where the defendant is tried by a jury, “jeopardy
attaches when a jury is empaneled and sworn,” Serfass v. United States, 420 U.S.
377, 388 (1975) (citing Downum v. United States, 372 U.S. 734 (1963), and Illinois
v. Somerville, 410 U.S. 458 (1973)). Crist, 437 U.S. at 38. In the military, Article
44(c), UCMJ, views the “introduction of evidence” as the critical event for double
jeopardy purposes. 3




3
  Article 44(c) provides: “A proceeding which, after the introduction of evidence
but before a finding, is dismissed or terminated by the convening authority or on
motion of the prosecution for failure of available evidence or witnesses without any
fault of the accused is a trial in the sense of this article.” Article 44(c), UCMJ
(emphasis added).


                                            5
EASTON – ARMY 20080640

       Once jeopardy attaches, it must then “terminate” before double-jeopardy
protections will bar subsequent proceedings. Richardson v. United States, 468 U.S.
317, 325 (1984). Jeopardy can terminate in a variety of circumstances, including by
acquittal, United States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977);
United States v. Walters, 58 M.J. 391, 397 (C.A.A.F. 2003), by discharge of the jury
in the absence of “manifest necessity,” Arizona v. Washington, 434 U.S. 497, 505
(1978); Wade v. Hunter, 336 U.S. 684, 689–90 (1949) (holding that a convening
authority, like a court, possesses “the authority to discharge a jury from giving a
verdict, whenever . . . there is a manifest necessity for the act” (quoting United
States v. Perez, 22 U.S. 579, 580 (1824))), and by dismissal of the charges in the
absence of “manifest necessity,” Scott, 437 U.S. at 92. In circumstances where
jeopardy does not “terminate,” the initial jeopardy is thought to continue into, but
not preclude, the subsequent proceeding. Yaeger v. United States, 129 S.Ct. 2360,
2366 (2009) (holding that “a jury’s inability to reach a decision is the kind of
‘manifest necessity’ that permits the declaration of a mistrial and the continuation of
the initial jeopardy that commenced when the jury was first impaneled”). See
Kepner v. United States, 195 U.S. 100, 134 (1904) (Holmes, J., dissenting)
(“[L]ogically and rationally a man cannot be said to be more than once in jeopardy
in the same cause, however often he may be tried. The jeopardy is one continuing
jeopardy, from its beginning to the end of the cause.”).

                                    DISCUSSION

       Appellant claims that his second court-martial was barred by the Double
Jeopardy Clause. Specifically, appellant contends that once the panel in his first
court-martial was sworn and assembled, jeopardy attached, and the government was
foreclosed from trying appellant at his second court-martial. Appellant further
argues that Article 44(c), UCMJ, is unconstitutional as applied to him because it
assigns a later stage for attachment of jeopardy in a court-martial than does the
Double Jeopardy Clause in a civilian trial. 4

      Neither this court nor our superior court has resolved the apparent conflict
between the attachment of jeopardy under the Double Jeopardy Clause and the
attachment of jeopardy under Article 44, UCMJ. 5 The government assumes without

4
 Appellant cannot claim former jeopardy protections under the UCMJ, because
appellant’s first court-martial, which ended prior to the introduction of evidence, is
not a “trial” as defined by Article 44(c), UCMJ. Consequently, the first court-
martial is not entitled to preclusive effect under the code.
5
 This inconsistency was recognized by our superior court in United States v. Cook,
where the court stated, “[T]he definition of trial in Article 44(c) . . . does not

                                                                       (continued . . .)


                                           6
EASTON – ARMY 20080640

conceding that jeopardy attached to appellant’s first court-martial, but argues that
withdrawal and dismissal of the charges were warranted by manifest necessity. 6
Thus, at its core, the government’s position is that we need not reach the
constitutionality of Article 44(c), UCMJ, because jeopardy did not terminate in
appellant’s first court-martial.

      According to the plain meaning of Article 44, UCMJ, jeopardy did not attach
to appellant’s first court-martial. However, we need not, and therefore should not, 7



(. . . continued)
conform precisely to the Supreme Court’s decisions that jeopardy attaches in a jury
trial when the jury is sworn, even though no evidence has been presented.” United
States v. Cook, 12 M.J. 448, 452–53 (C.M.A. 1982) (citing James H. Weise, Double
Jeopardy: Changes by the Supreme Court and their Effect on the Military, 11 The
Advocate 28, 29–31 (Jan.-Feb. 1979) (concluding that “[a]n analysis of the treatment
of the double jeopardy clause by the military appellate tribunals indicates that the
military rule [for attachment of jeopardy] may no longer be tenable in light of Crist
v. Bretz,” and discussing United States v. Wells, 9 U.S.C.M.A. 509, 512, 26 C.M.R.
289, 292 (1958) (applying the plain language of Article 44(c), UCMJ, due to the
absence of binding federal authority to the contrary))).
6
  Two of our recent cases, United States v. McClain, 65 M.J. 894 (Army Ct. Crim.
App. 2008), and United States v. Ragard, 56 M.J. 852 (Army Ct. Crim. App. 2002),
quote the Fifth Amendment standard for attachment of jeopardy; however, neither
case involved trial by a court-martial panel. In McClain, the appellant elected to be
tried by a military judge at his first court-martial, and evidence on the merits was
admitted. McClain, 65 M.J. at 895–96. Therefore, McClain involved a different
forum, and it did not require determination of whether jeopardy attached prior to
introduction of evidence. In Ragard, the appellant claimed double-jeopardy
protection based upon a civilian criminal-court proceeding in which a jury was not
yet empaneled. Ragard, 56 M.J. at 853–54. Thus, Ragard, in addition to not
involving a court-martial panel, did not even implicate the attachment of jeopardy
under the Double Jeopardy Clause. Furthermore, neither McClain nor Ragard
discussed the conflict between the Double Jeopardy Clause and Article 44, UCMJ.
Therefore, we will not assign to them any precedence on this issue. To the extent
the language in these opinions purports to apply Fifth Amendment jurisprudence for
determining the stage at which jeopardy attaches in a court-martial composed of
panel members, it is dicta.
7
 “If there is one doctrine more deeply rooted than any other in the process of
constitutional adjudication, it is that we ought not to pass on questions of

                                                                       (continued . . .)


                                           7
EASTON – ARMY 20080640

decide whether Article 44, UCMJ is unconstitutional in this case. Even if jeopardy
attached in appellant’s first court-martial it did not terminate.

       In general, jeopardy will terminate, and therefore preclude a subsequent court-
martial, where charges are dismissed. But where a manifest necessity exists to
dismiss charges, then jeopardy does not terminate. Wade, 336 U.S. at 689–90. 8 See
Burtt, 23 M.J. at 142. Cf. R.C.M. 915(a). In that case, an accused’s valued right “to
have his trial completed by the particular tribunal summoned to sit in judgment on
him,” Downum, 372 U.S. at 736, must give way to the government’s “very vital
interest in enforcement of criminal laws,” Jorn, 400 U.S. at 479. Scott, 437 U.S. at
92. Thus, “manifest necessity” refers to the magnitude of the circumstances that
justify discontinuing a trial without terminating jeopardy. Washington, 434 U.S. at
505–06. The term “manifest necessity” does not equate to an irresistible
compulsion, but instead means there is a “high degree” of need for the action taken.
Id.

      In this case, the termination of jeopardy turns on whether there existed a
manifest necessity for the convening authority’s decision to withdraw and dismiss
the charges from appellant’s first court-martial. The convening authority’s power to


(. . . continued)
constitutionality . . . unless such adjudication is unavoidable.” Spector Motor Serv.
Inc. v. McLaughlin, 323 U.S. 101, 105 (1944). E.g., Lyng v. Nw. Indian Cemetery
Prot. Ass’n, 485 U.S. 439, 445 (1988) (“A fundamental and longstanding principle
of judicial restraint requires that courts avoid reaching constitutional questions in
advance of the necessity of deciding them.”). Chief Justice Roberts famously
phrased this principle of judicial restraint as, “if it is not necessary to decide more,
it is necessary not to decide more.” PDK Labs. Inc. v. DEA, 362 F.3d 786, 799
(D.C. Cir. 2004) (Roberts, Circuit Judge, concurring).
8
  It is important to note that although Wade v. Hunter, 336 U.S. 684 (1949) was
decided under the Articles of War, the drafters of the UCMJ thoroughly considered
the Wade decision and intended to preserve the doctrine of “manifest” or, as it was
called, “imperious” necessity in Article 44, UCMJ. Uniform Code of Military
Justice: Hearings on S. 857 and H.R. 4080 Before a Subcomm. of the S. Comm. on
Armed Servs., 81st Cong. 169–70, 185–86, 241–45, 323–25 (1949). The same
cannot be said for decisional law holding jeopardy attaches when a jury is
empaneled. See, e.g., Crist, 437 U.S. at 38 (noting that in Downum v. United States,
372 U.S. 734 (1963) the Supreme Court first pinpointed the time of empanelment as
“the stage in a jury trial when jeopardy attaches”). Furthermore, Congress has not
changed the language of Article 44(c), UCMJ, since its adoption. See also Rule for
Courts-Martial [hereinafter R.C.M.] 907(b) analysis at A21-57 (discussing why the
Crist decision was not incorporated into the Manual for Courts-Martial, United
States (1990 ed.)).


                                            8
EASTON – ARMY 20080640

withdraw and subsequently re-refer charges to a court-martial is governed by R.C.M.
604, which was promulgated by the President pursuant to Article 36, UCMJ. It
states, in part, “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). An improper reason for withdrawal includes “an intent to interfere
with the free exercise by the accused of constitutional or codal rights, or with the
impartiality of a court-martial.” R.C.M. 604(b) discussion. See, e.g., Vanover v.
Clark, 27 M.J. 345, 347–48 (C.M.A. 1988); Article 37, UCMJ. Although
compliance with R.C.M. 604 does not per se establish the existence of manifest
necessity, see Wade, 336 U.S. at 691 (rejecting application of a “rigid formula” in
favor of a flexible standard applicable under “widely different circumstances”), 9 it is
nonetheless an important analytical starting point.

       Here, the convening authority acted within his regulatory authority when he
referred to appellant’s second court-martial the charges he withdrew from the first
court-martial. Despite the good-faith efforts of the trial counsel, two of the
government’s key witnesses were unable to return from a combat theater, and the
depositions secured due to their unavailability were useless. “[A] criminal trial is,
even in the best of circumstances, a complicated affair to manage.” Jorn, 400 U.S.
at 479. Nowhere is this more true than in the military justice system. Not only must
the most basic considerations be taken into account, for example, the health and
safety of the various witnesses, parties, and members, but military exigencies must
also be weighed, for witnesses may be required to deploy to, or remain in, combat.
In light of these complexities, and taking into account the circumstances of this case,




9
  We express no opinion about whether an “urgent and unforeseen military
necessity” as required in R.C.M. 604(b) is synonymous with “manifest necessity” for
double jeopardy purposes. Compare Manual for Courts-Martial, United States
(1951 ed.), Chapter XII, para. 68d. (providing “a proceeding is not a trial in the
sense of Article 44 if, because of manifest necessity in the interests of justice, it was
terminated”), and Manual for Courts-Martial, United States (1968 ed.), Chapter
XXIX, para. 215b. (amended to provide “a proceeding is not a trial in the sense of
Article 44 if, because of urgent military necessity or other good cause in the interest
of justice, it was terminated”), with R.C.M. 604(b) analysis at A21-32 (stating that
the rule’s language was based on Wade v. Hunter, 336 U.S. 684 (1949) (citing
United States v. Perez, 22 U.S. 579 (1824)), and Perez, 22 U.S. at 580 (holding that
the authority to discharge a jury “ought to be used with the greatest caution, under
urgent circumstances, and for very plain and obvious causes”)). The rule-based
requirement for an urgent and unforeseen military necessity is only triggered “after
the introduction of evidence on the general issue of guilt.” R.C.M. 604(b). In this
case, no evidence was introduced at appellant’s first court-martial.



                                           9
EASTON – ARMY 20080640

we conclude that the convening authority’s decision to withdraw and dismiss the
charges from appellant’s first court-martial was done for a proper reason. 10

       Furthermore, this case demonstrates a manifest necessity for the convening
authority’s actions. Appellant’s unit was ordered to Iraq as part of a surge of forces
designed to quell the deadly violence in that country. Appellant’s crime was for
intentionally missing movement to Iraq for this operation. As appellant’s case
neared trial, it became clear that operational requirements would prevent the return
of some members of appellant’s unit that possessed knowledge about the
circumstances of the case. Thus, due to the very nature of appellant’s crime and the
ongoing operations in Iraq, two witnesses were unavailable for trial. The
government still made efforts to prosecute appellant’s first court-martial and secured
depositions of the unavailable witnesses, but the depositions were inoperable.

       The Supreme Court has long acknowledged that determining whether manifest
necessity exists must be made on a case-by-case basis. E.g., Downum, 372 U.S. at
737; Perez, 22 U.S. at 580. The seminal case to address manifest necessity in the
military is Wade v. Hunter. The Wade Court said that the issue of “[w]hen justice
requires that a particular trial be discontinued is a question that should be decided
by persons conversant with factors relevant to the determination.” Wade, 336 U.S.
at 689. In that case, the Court held that the convening authority’s decision to
withdraw charges due to a tactical situation did not result in the termination of
jeopardy:

             This case presents extraordinary reasons why the judgment
             of the Commanding General should be accepted by the
             courts. At least, in the absence of charges of bad faith on
             the part of the Commanding General, courts should not
             attempt to review his on-the-spot decision that the tactical
             situation required transfer of the charges.

Wade, 336 U.S. at 692.

       Appellant’s case is both similar to, and distinct from, Wade. Unlike Wade,
some of the circumstances that combined to disrupt appellant’s first court-martial
were within the prosecution’s control. In that regard, the trial counsel’s inability to
actually secure depositions of the unavailable witnesses directly implicates policies
underpinning double-jeopardy protections in general. See Jorn, 400 U.S. at 486.

10
  We also conclude that the military judge’s findings on the motion to dismiss for an
improper withdrawal are not clearly erroneous. Furthermore, we adopt those
findings, as well as the military judge’s findings on the motion regarding double
jeopardy itself, as our own in ruling upon appellant’s claim to this court that double
jeopardy barred his second court-martial.


                                          10
EASTON – ARMY 20080640

However, the trial counsel’s failure to secure the depositions is not dispositive in
this case. Because what was explicit in Wade is implicit here — operational
considerations drove the convening authority’s decision to terminate appellant’s first
court-martial. Moreover, there is no evidence that the convening authority acted in
bad faith when he made an informed decision to withdraw the charges from that
court-martial. 11

       The convening authority’s broad discretion must temper our analysis in this
case. No evidence had been introduced at appellant’s first court-martial, and
appellant’s unit, which included the witnesses against him, was engaged in combat
in Iraq. Instead of pursuing withdrawal of these witnesses from Iraq, the convening
authority withdrew the charges from the court-martial. Absent evidence of bad
faith, we will not second-guess the convening authority’s tactical decision to
withdraw charges here, especially when buttressed by the record of trial and the
military judge’s thorough findings of fact.

                                   CONCLUSION

       According to the plain meaning of Article 44, UCMJ, jeopardy did not attach
to appellant’s first court-martial. Furthermore, even if jeopardy attached, under the
facts of this case and in light of the principles of manifest necessity, the convening
authority was well within his power to withdraw, dismiss, and re-refer to a new
court-martial the charges against appellant.

      On consideration of the entire record, the assigned error, and the matters
personally raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982), we find appellant’s arguments to be without merit. We hold the
findings of guilty and the sentence as approved by the convening authority correct in
law and fact. Accordingly, the findings of guilty and the sentence are AFFIRMED.




11
  To be sure, the drafters of the UCMJ were concerned with a convening authority’s
power to withdraw charges mid-trial based on his or her assessment of the strength
of the government’s case. Uniform Code of Military Justice: Hearings on S. 857
and H.R. 4080 Before a Subcomm. of the S. Comm. on Armed Servs., 81st Cong.
323–25 (1949). This concern is also reflected in R.C.M. 604(b), where the
convening authority’s discretion to re-refer charges is narrowly prescribed after the
introduction of evidence. Although neither the foregoing limitation in R.C.M.
604(b) nor Article 44(c), UCMJ applies in this case, it is nonetheless important to
note that the concerns underlying these limitations are not present here.


                                          11
EASTON – ARMY 20080640

    Judges COOK and BURTON concur.

                              FOR THE
                              FOR THE COURT:
                                      COURT:



                              MALCOLM
                              MALCOLM H.  H. SQUIRES,
                                             SQUIRES, JR.
                                                      JR.
                              Clerk of Court
                              Clerk of Court




                                12
