

   
   
   
   U.S. v. McLaughlin



United States, Appellee
v.
William S. MCLAUGHLIN III, Lance Corporal
U.S. Marine Corps, Appellant
 
 
No. 96-0507
Crim App. No. 94-2095
 
 
United States Court of Appeals for the Armed
Forces
Argued February 11, 1999
Decided April 28, 1999


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


Counsel
For Appellant: Lieutenant Dale O. Harris,
JAGC, USNR (argued); Lieutenant Jeffrey K. Van Nest, JAGC, USNR
(on brief); Lieutenant Kathryn L. Clune, JAGC, USNR.
For Appellee: Major Mark K. Jamison,
USMC (argued); Colonel K.M. Sandkuhler, USMC, and Commander E.E.
Irvin, JAGC, USN (on brief); Colonel Charles Wm. Dorman, USMC,
Commander
D.H. Myers, JAGC, USN, Lieutenant Andrew J. Waghorn, JAGC, USNR,
and Lieutenant Russell J.E. Verby, JAGC, USNR.
Military Judge: M.R. Osborn
 
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.


Judge CRAWFORD delivered the opinion of the
Court.
Pursuant to his pleas, appellant was convicted
at a special court-martial of attempted larceny (2 specifications), conspiracy
to commit larceny (2 specifications), larceny (6 specifications), failure
to obey a lawful order, wrongful disposition of military property, false
swearing, and receiving stolen property, in violation of Articles 80, 81,
121, 92, 108, and 134, Uniform Code of Military Justice, 10 USC §§
880, 881, 921, 892, 908, and 934, respectively. As part of a pretrial agreement,
a number of specifications were withdrawn, including one of attempted larceny,
seven of larceny, and one of abuse of an animal. Appellant was sentenced
to a bad-conduct discharge, 180 days' confinement, partial forfeitures,
and reduction to the lowest enlisted grade. Pursuant to the pretrial agreement,
the convening authority approved the sentence but suspended confinement
in excess of 120 days and all forfeitures. The Navy-Marine Corps Court
of Criminal Appeals set aside one attempted larceny finding, one conspiracy
finding, and two larceny findings, otherwise affirming the findings and
sentence.
The first time this case was before the Court
of Criminal Appeals, the court directed appellant to make an election regarding
whether he wanted to maintain his guilty pleas and the pretrial agreement
or, instead, wanted to withdraw from the pretrial agreement. However, on
reexamination, with the benefit of United States v. Rivera, 46 MJ
52 (1997), the court concluded that there was "no Government coercion,
overreaching, or attempt to enforce the agreement in a manner contrary"
to the Manual for Courts-Martial, United States, 1984. Unpub. op.
at 5 (23 Oct. 1997). The court noted that appellant did not identify at
his court-martial any issue that he was precluded from raising by the two
provisions of the agreement found to be improper. Id. As was the
case with Rivera, "[the court] therefore conclude[d] that appellant
is entitled to no relief." Id.
We granted review of the following issue:



WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL
APPEALS ERRED WHEN IT REFUSED TO REMAND THIS CASE, SO THAT APPELLANT COULD
LITIGATE A SPEEDY TRIAL ISSUE, AFTER THE COURT CONCLUDED APPELLANTS PRETRIAL
AGREEMENT CONTAINED AN UNLAWFUL PROVISION IN CLEAR VIOLATION OF RULE FOR
COURTS-MARTIAL 705 (c)(1)(B).



We hold that the Court of Criminal Appeals did
not err because appellant has not set forth sufficient information to show
a colorable speedy trial claim.

FACTS
After being advised of his right to counsel
and his rights concerning forum, appellant elected a trial by military
judge alone. He then indicated that he had voluntarily entered into a pretrial
agreement. After the providency inquiry was conducted, the judge noted
that there was a provision in the agreement to waive the speedy trial issue.
The judge asked defense counsel if there was a speedy trial issue he had
wanted to raise. The defense counsel replied, "Sir, thats something that
would be subject to some debate, but if there were any issues, the defense
is waiving that issue as part of this agreement." The judge again asked,
"And you do not ... want to raise [the] issue?" The defense replied, "Thats
right, sir."
The charge sheet indicates that appellant was
in pretrial confinement from February 12, 1994, until May 11, 1994 (88
days), when he was transferred to a Japanese jail to be held for civilian
charges. However, the date of court-martial was May 18, 1994; thus, the
defense asserts 95 days of delay. United States v. Kossman, 38 MJ
258 (CMA 1993), which abolished the presumption of a speedy trial violation
where pretrial confinement exceeds 90 days, was decided on September 29,
1993. The charge sheet also reflects that appellant was brought to trial
26 days after the preferral of charges.
The defense argues that 95 days is a long time
in pretrial confinement, and that the Government must demonstrate it acted
with reasonable diligence. According to the defense, "[t]he fact that both
sides specifically agreed not to litigate a speedy trial motion
logically infers [sic] that the trial counsel and defense counsel believed
that at least a colorable speedy trial issue existed in Appellants case."
Final Brief at 8. In addition, appellant's trial defense counsel filed
an affidavit with the court below reiterating that he thought there was
a valid speedy trial motion.
The defense contends that this speedy
trial motion is viable because appellant was in pretrial confinement for
over 90 days, though disavowing a return to the presumption of United
States v. Burton, 21 USCMA 112, 44 CMR 166 (CMA 1971). In Kossman,
we rejected the notion of a "magic number" in speedy trial cases, and
we do so again here. United States v. Hatfield, 44 MJ 22
(1996) (upholding dismissal of charges by trial judge for 48 days of "inordinate
delay").
The Government argues that there is no evidence
of overreaching or coercion and that the record demonstrates appellant
voluntarily waived his speedy trial rights. The Government also
notes that appellant has failed to articulate any prejudice. The Government
further notes that the speedy trial rule is a 120-day rule, pursuant to
RCM 707, Manual, supra, rather than the 90-day Burton rule.

DISCUSSION
As for impermissible pretrial agreement terms,
the Manual merely requires that these terms will not be enforced. RCM 705(c)(1)(B).
The judge should have declared this speedy trial provision impermissible
and unenforceable, while upholding the remainder of the pretrial agreement.
After so informing appellant, the judge could have then asked him if he
wanted to raise a speedy trial issue. If appellant declined to do so, his
waiver would have been clearer. The source of these pretrial conditions
is immaterial because a 1991 change to the Manual permits the Government
to initiate terms and conditions of a pretrial agreement. See Manual,
supra
(1998 ed.) at A21-39.
In any event, appellant must in the first instance
come forward and make a prima facie showing or a colorable
claim that he is entitled to relief. See United States v. Forester,
48 MJ 1 (1998); United States v. Rivera, 46 MJ at 54. Appellant
has not carried his burden. While there was a 95-day delay, appellant has
not shown that he was prejudiced, that he made a demand for trial, or that
this was a simple set of offenses that would not require the amount of
time taken by the Government to investigate. The charge sheet itself does
not validate that assertion. Thus, we affirm the decision of the United
States Navy-Marine Corps Court of Criminal Appeals.
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