

   
   
   
   U.S. v. Birge



United States, Appellee
v.
Kevin BIRGE, Lance Corporal
U.S. Marine Corps, Appellant
 
No. 98-1002
Crim.App. No. 97-0430
 
United States Court of Appeals for the Armed
Forces
Argued May 13, 1999
Decided September 30, 1999
EFFRON, J., delivered the opinion of the
Court, in which COX, C.J., and SULLIVAN, CRAWFORD, and GIERKE JJ., joined.

Counsel
For Appellant: Lieutenant John D. Holden,
JAGC, USNR (argued); Lieutenant Syed N. Ahmad, JAGC, USNR.
For Appellee: Lieutenant Janice K. O'Grady,
JAGC, USNR (argued); Colonel Kevin M. Sandkuhler, USMC, and Commander
E. E. Irvin, JAGC, USN (on brief).
Military Judge: R. G. Sokoloski
 

THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION


Judge EFFRON delivered the opinion of the Court.
Appellant was tried by a special court-martial
composed of a military judge alone. Consistent with his pleas, he was convicted
of conspiring to distribute cocaine (1 specification) and soliciting others
to possess cocaine (2 specifications), in violation of Articles 81 and
134, Uniform Code of Military Justice, 10 USC §§ 881 and 934,
respectively. He was sentenced to a bad-conduct discharge, confinement
for 160 days, forfeiture of $580.00 pay per month for 6 months, and reduction
to the lowest enlisted grade. The convening authority approved the sentence
but suspended all confinement in excess of 124 days for a period of 1 year.
The Court of Criminal Appeals affirmed in an unpublished opinion.
On appellants petition, we granted review
of the following issue:



WHETHER THE LOWER COURT ERRED WHEN IT FOUND
THAT APPELLANT HAD WAIVED AN ARTICLE 10, UNIFORM CODE OF MILITARY JUSTICE,
VIOLATION WHERE HE FAILED TO RAISE THE ISSUE AT TRIAL AND PLEADED GUILTY.



For the reasons set forth herein, we affirm the
decision below.

I. Background
On May 16, 1996, appellant was placed in pretrial
confinement on charges related to the distribution of crack cocaine at
Camp Lejeune, North Carolina. Military defense counsel was detailed to
represent appellant on June 7, 1996. Charges were preferred on July 15.
On July 31, the convening authority ordered a pretrial investigation under
Article 32, UCMJ, 10 USC §832. After appellants counsel was removed
from the case on August 9 due to a conflict of interest, appellant requested,
and was granted, an 18-day delay in the investigation. The convening authority
referred the charges to a special court-martial on September 4.
Appellant entered into a pretrial agreement
on September 16, 1996. At trial, 2 days later, appellant entered an unconditional
plea of guilty in accordance with RCM 910, Manual for Courts-Martial, United
States (1995 edition).1
Thereafter, he was convicted and sentenced.
Prior to trial, appellant was incarcerated
for a total of 125 days. He did not allege a speedy trial violation at
any time prior to, or during, trial. Unpub. op. at 2. The issue was first
raised on appeal before the Court of Criminal Appeals, 15 months after
trial.
The Court of Criminal Appeals, citing RCM 707(e)
and United States v. Pruitt, 41 MJ 736, 738-39 (N.M.Ct.Crim.App.
1994), held that failure to raise a speedy trial issue at trial "waived"
appellants rights under Article 10, UCMJ, 10 USC § 810. Unpub. op
at 2. The court also stated that even if appellant had not waived the issue,
no violation of Article 10 was discernible from the facts of record, particularly
in view of the 18-day continuance at defense request. Unpub. op. at 2.

II. Discussion
The parties have identified three distinct
legal standards relevant to the granted issue. First, by Presidential
directive, a person must be brought to trial within 120 days of preferral
of charges, imposition of pretrial restraint, or activation of a reservist
for purposes of court-martial jurisdiction, subject to applicable exceptions
and exclusions. RCM 707.2
Second, by statute, if a person "is placed in arrest or confinement prior
to trial, immediate steps shall be taken . . . to try him or to dismiss
the charges and release him." Art. 10, UCMJ, 10 USC § 810.3
Third, the Sixth Amendment guarantees "the right to a speedy and public
trial."4
The standard relied upon by appellant
in the present appeal is the requirement under Article 10 that "immediate
steps" be taken to try a person placed in pretrial confinement. Appellant
does not claim a violation of the Sixth Amendment "right to a speedy and
public trial" under the standards set forth by the Supreme Court in Barker
v. Wingo, 407 U.S. 514 (1972), or a violation of RCM 707.
The test for assessing an alleged violation
of Article 10 is whether the Government has acted with "reasonable diligence"
in proceeding to trial. United States v. Kossman, 38 MJ 258, 262
(CMA 1993). In Kossman, we made clear that Congress intended to
provide servicemembers with broader rights under Article 10 than are available
to civilians under the Sixth Amendment. We also noted that the President,
in promulgating the regulatory guidance in RCM 707, could not "diminish"
the rights provided in Article 10. 38 MJ at 259-60. As a result, even if
the Government has complied with RCM 707 and the Sixth Amendment, the Government's
failure to proceed with "reasonable diligence" would constitute a violation
of Article 10. See id.
Appellant contends that the speedy
trial right under Article 10 "cannot be waived without an affirmative and
fully developed waiver on the record." Final Brief at 6. Although some
of our prior cases suggested that Article 10 rights could not be waived,
see, e.g., United States v. Cummings, 17 USCMA 376, 378,
38 CMR 174, 176 (1968); United States v. Tibbs, 15 USCMA 350, 353,
35 CMR 322, 325 (1965); United States v. Schalck, 14 USCMA 371,
375, 34 CMR 151, 155 (1964); our most recent precedent, United States
v. Sloan, 22 USCMA 587, 48 CMR 211 (1974), concluded that failure to
raise the issue constituted waiver of Article 10, absent a timely challenge
on the part of the accused to any pretrial delay. See also United
States v. Hounshell, 7 USCMA 3, 6, 21 CMR 129, 132 (1956)("The right
to a speedy trial is a personal right which can be waived" by failing to
raise the issue at trial.).
Civilian law does not support a requirement
for an affirmative and fully developed waiver. For example, under the Speedy
Trial Act, 18 USC § 3162(a)(2), "[f]ailure of the defendant to move
for dismissal prior to trial or entry of a plea of guilty or nolo contendre
shall constitute a waiver of the right to dismissal under this section."
See, e.g., United States v. Kime, 99 F.3d 870, 881 (8th
Cir. 1996), cert. denied, 519 U.S. 1141 (1997); United States
v. Andrews, 790 F.2d 803, 809-10 (10th Cir. 1986), cert.
denied, 481 U.S. 1018 (1987). Moreover, the Supreme Court in Barker
v. Wingo, 407 U.S. 514, 526-29 (1972), declined to extend to the speedy
trial right under the Sixth Amendment the requirement for a knowing and
intelligent waiver. The Court noted that the knowing and intelligent waiver
requirement is applicable to other constitutional criminal trial rights,
"such as the rights to plead not guilty, to demand a jury trial, to exercise
the privilege against self-incrmination, and to have the assistance of
counsel," but emphasized that the speedy trial right has different characteristics
requiring a different approach. The Court noted that the question of whether
delay would benefit the defense is a matter that could vary, depending
on the circumstances of the case, and concluded that "the right to a speedy
trial is unique in its uncertainty as to when and under what circumstances
it must be asserted or may be deemed waived . . . ." Id. at 529.
As a result, the Court rejected a requirement for an affirmative waiver,
and instead set forth a "balancing test," involving four factors: "Length
of the delay, the reason for the delay, the defendant's assertion of his
right, and prejudice to the defendant." Id. at 530. The Court specifically
"emphasize[d] that failure to assert the right will make it difficult for
a defendant to prove that he was denied a speedy trial." Id. at
532.
In our view, the same considerations
militate against requiring an affirmative waiver on the record with respect
to an Article 10 violation. Because Article 10 provides a more stringent
speedy trial requirement than the Sixth Amendment, Article 10 issues cannot
be resolved simply by determining whether similar delays would have violated
the Sixth Amendment under Barker v. Wingo, supra. It is appropriate,
however, to consider the Barker v. Wingo factors -- in the context
of Article 10's "immediate steps" language and "reasonable diligence" standard
-- in determining whether a particular set of circumstances violates a
servicemember's speedy trial rights under Article 10.
Applying those factors to the present
appeal, we note: (1) appellant made no demand for a speedy trial or to
be released from pretrial confinement; (2) appellant made no motion to
dismiss or any other motion for relief predicated on a lack of speedy trial;
(3) appellant entered a pretrial agreement within 2 days of trial; (4)
appellant received credit for his pretrial confinement on his sentence;
(5) there is no evidence of willful or malicious conduct on the part of
the Government to create the delay; and (6) appellant suffered no prejudice
to the preparation of his case as a result of the delay. Assuming the facts
as set out by appellant are true, we hold that those facts are not sufficient
to raise the issue of an Article 10 violation.
In light of our holding, we need not
decide whether the Court below correctly decided that appellant waived
the Article 10 issue through his guilty plea under RCM 707(e). The conditions
under which a servicemember can waive an Article 10 issue through a guilty
plea or inaction at trial is a statutory, not a regulatory, question. Because
the present case is readily resolved under the Barker v. Wingo,
supra, factors, it does not present an appropriate vehicle for resolving
the relationship between the rule and the statute.

III. Decision
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
FOOTNOTES:
1 All Manual
provisions are cited to the version applicable at trial. The 1998 version
is unchanged, unless otherwise indicated.
2
The 1998 version differs from the version applicable at trial only as to
matter not relevant to the granted issue.
3
Article 33, UCMJ, 10 USC § 833, which is not implicated in the present
case, requires that "[w]hen a person is held for trial by general court-martial,
the commanding officer shall . . . forward the charges" within 8 days to
the general court-martial convening authority, "if practicable."
4
Neither party has relied upon United States v. Lovasco, 431 U.S.
783 (1977) (finding a speedy trial violation under the Due Process Clause
in egregious cases of preindictment delays involving actual prejudice),
and we agree that it is not pertinent to the present appeal.

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