      This opinion is subject to revision before publication




        UNITED STATES COURT OF APPEALS
                 FOR THE    ARMED FORCES
                        _______________

                      UNITED STATES
                          Appellee
                               v.
               James B. HENDRIX, Private
               United States Army, Appellant
                         No. 18-0133
                   Crim. App. No. 20170439
         Argued May 1, 2018—Decided June 19, 2018
                Military Judge: Richard Henry
   For Appellant: Captain Benjamin J. Wetherell (argued);
   Lieutenant Colonel Christopher D. Carrier, Lieutenant
   Colonel Tiffany M. Chapman, Major Brendan R. Cronin,
   and Captain Cody Cheek.
   For Appellee: Captain Catharine M. Parnell (argued);
   Colonel Tania M. Martin, Lieutenant Colonel Eric K.
   Stafford, and Captain Allison L. Rowley.
   Judge SPARKS delivered the opinion of the Court, in
   which Chief Judge STUCKY, and Judges RYAN,
   OHLSON, and MAGGS, joined.
                   _______________

   Judge SPARKS delivered the opinion of the Court.
    Private (E-2) James B. Hendrix (Appellant) was charged
with two specifications of sexual assault in violation of
Article 120, Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 920. Prior to trial, Appellant filed a motion to
dismiss the charges with prejudice due to a violation of his
right to a speedy trial under Rule for Courts-Martial
(R.C.M.) 707. The military judge granted the motion and,
finding subterfuge on the part of the Government, dismissed
the charges with prejudice. The Government appealed the
military judge’s decision under Article 62, UCMJ, 10 U.S.C.
§ 862 (2012). The United States Army Court of Criminal
Appeals determined that the military judge had abused his
discretion and vacated the dismissal of the charges with
prejudice. Appellant then petitioned to this Court and we
granted review on the following issue:
            United States v. Hendrix, No. 18-0133/AR
                      Opinion of the Court

       Whether the military judge abused his discretion
       by dismissing the charge and specifications with
       prejudice for a violation of R.C.M. 707.
    We hold that the military judge erred in finding a
violation of R.C.M. 707 and he therefore had no basis to
dismiss the charge and specifications with prejudice. As
elaborated upon below, the Government exercised no
subterfuge or improper reason in dismissing and
repreferring the charges against Appellant.
                      I. BACKGROUND
    The charges in this case stem from an unrestricted report
made by Private EW, alleging that she had been sexually
assaulted by Appellant. Because this case revolves around
an R.C.M. 707 speedy trial violation, we have organized the
factual background by date to create a timeline of events.
   March 22, 2016 — The charged offenses allegedly occur.
   November 29, 2016 — Appellant’s commander prefers
 charges.1
   December 8, 2016 — An Article 32, UCMJ, 10 U.S.C. §
 832 (2012), preliminary hearing officer (PHO) is appointed.
   December 12, 2016 — The PHO notifies counsel of his
 appointment and schedules the preliminary hearing for
 December 22, 2016.
   December 13, 2016 — Defense counsel makes a written
 request for a delay in the proceedings for the period
 between December 22, 2016, and January 3, 2017 (thirteen
 days).
   December 16, 2016 — The PHO grants the defense
 request and schedules the preliminary hearing for January
 6, 2017.
   January 6, 2017 — The Article 32, UCMJ, preliminary
 hearing occurs. Private EW does not participate.
   January 24, 2017 — A memo attached to the PHO’s
 report allows for twenty-five days of excludable delay,
 thirteen for the defense request and twelve days of
 administrative pretrial delay (December 12–21, 2016, and
 January 4–5, 2017). Defense counsel does not object to the
 contents of the PHO report.

   1 Appellant was charged with two specifications of committing
a sexual act upon Private EW, penetration with his penis and
penetration with his fingers, both without her consent.



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            United States v. Hendrix, No. 18-0133/AR
                      Opinion of the Court

   February 10, 2017 — Private EW, through her special
 victim counsel (SVC), informs the Government that she
 does not want to participate as a witness at a court-
 martial.
   February 24, 2017 — The SVC contacts the Government
 and tells them that Private EW has changed her mind and
 would be willing to participate in a court-martial.
   March 14, 2017 — After meeting with trial counsel,
 Private EW changes her mind again and decides she does
 not want to participate in a court-martial.
   March 21, 2017 — The SVC, via a victim input
 memorandum, informs Government counsel that Private
 EW would prefer that the matter not be referred to general
 court-martial, that she does not want to participate as a
 witness during a trial, and that she favors resolution
 through an administration separation board process.
   March 29, 2017 — Day 120 of the original 120-day clock,
 not counting delays.
   April 2, 2017 — The Government informs defense
 counsel that they plan to dismiss the charge.
   April 11, 2017 — Day 120 including the thirteen-day,
 defense-requested delay.
   April 14, 2017 — The convening authority dismisses the
 charge against Appellant.2
   April 18, 2017 — The SVC notifies the Government that
 Private EW now wants to participate in a trial of
 Appellant.
   April 21, 2017 — Identical charges are repreferred
 against Appellant by his company commander.
   April 23, 2017 — What would have been day 120
 including the administrative delay excluded by the PHO.
   May 11, 2017 — The findings of the previous Article 32,
 UCMJ, hearing are adopted and the case is referred to
 general court-martial.
   June 4, 2017 — Appellant files a motion to dismiss due to
 a speedy trial R.C.M. 707 violation.
   June 8, 2017 — Appellant is arraigned and the military
 judge hears evidence on the motion to dismiss.



   2  The record does not indicate that the initial charge was ever
referred to court-martial.



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           United States v. Hendrix, No. 18-0133/AR
                     Opinion of the Court

   July 27, 2017 — The military judge issues a written
 ruling granting Appellant’s motion and dismissing the
 charge with prejudice.
                II. STANDARD OF REVIEW
    “In an Article 62, UCMJ, appeal, this Court reviews the
military judge’s decision directly and reviews the evidence in
the light most favorable to the party which prevailed at
trial.” United States v. Pugh, 77 M.J. 1, 3 (C.A.A.F. 2017)
(citing United States v. Buford, 74 M.J. 98, 100 (C.A.A.F.
2015)). “[W]e are bound by the military judge’s factual
determinations unless they are unsupported by the record or
clearly erroneous.” Id.
    We review de novo the question of whether an accused
received a speedy trial. United States v. Leahr, 73 M.J. 364,
367 (C.A.A.F. 2014) (citing United States v. Cooper, 58 M.J.
54, 58 (C.A.A.F. 2003)).
                   III. APPLICABLE LAW
   Under the relevant portion of R.C.M. 707, an accused
must be brought to trial within 120 days of preferral of
charges. R.C.M. 707(a)(1). If charges are dismissed and then
repreferred, a new 120-day period begins from the date of
repreferral. R.C.M. 707(b)(3)(A). Failure to comply with
R.C.M. 707 will result in dismissal of any affected charges.
R.C.M. 707(d). The court decides whether dismissal will be
with or without prejudice. R.C.M. 707(d)(1).
    To determine whether Appellant’s R.C.M. 707 rights
were violated by the convening authority’s dismissal and
repreferral, we apply the legal standard from Leahr, 73 M.J.
at 369. “Absent a situation where a convening authority’s
express dismissal is either a subterfuge to vitiate an
accused’s speedy trial rights, or for some other improper
reason, a clear intent to dismiss will be given effect.” Id.
Leahr elaborates on our statement in United States v. Tippit
that “[o]nce charges are dismissed, absent a subterfuge, the
speedy-trial clock is restarted.” 65 M.J. 69, 79 (C.A.A.F.
2007) (alteration in original) (citing United States v.
Anderson, 50 M.J. 447, 448 (C.A.A.F. 1999)). In Leahr, we
defined a proper reason (in the context of a discussion of
R.C.M. 604 which governs withdrawal of charges from court-
martial) as “a legitimate command reason which does not




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            United States v. Hendrix, No. 18-0133/AR
                      Opinion of the Court

‘unfairly prejudice’ an accused.” 73 M.J. at 369 (internal
quotation marks omitted) (citation omitted).3
    When a term is not statutorily defined, we accord it its
ordinary meaning. United States v. Pease, 75 M.J. 180, 184
(C.A.A.F. 2016). In assessing the presence or lack of
subterfuge, the lower court relied upon the ordinary
meaning of the term, specifically a dictionary definition of
subterfuge as “ ‘deception by artifice or stratagem in order to
conceal, escape, or evade.’ ” United States v. Hendrix, No.
ARMY Misc. 20170439, 2017 CCA LEXIS 769, at *7, 2017
WL 6492503, at *3 (A. Ct. Crim. App. Dec. 14, 2017)
(citation omitted) (unpublished).
                       IV. DISCUSSION
    We disagree with the military judge’s conclusion that the
convening authority’s dismissal of charges with the intent to
reprefer implies subterfuge or an improper reason. Rather,
dismissal and repreferral are fully permissible under the
provisions of R.C.M. 707. See also Leahr, 73 M.J. at 368.
Consulting the record, we can find no signs that confirm the
military judge’s finding of subterfuge on the part of the
Government because there is no indication the Government
was engaged in any sort of deception or dismissed the
charges with the intention of evading or escaping the 120-
day clock. To the contrary, the Government appears to have
behaved as if they were dismissing for the exact reasons
they indicated, because without Private EW’s participation
they did not have a strong case. The convening authority
was acting on the recommendation of the staff judge
advocate (SJA), who advised “dismissing the charge and its
specifications preferred against [Appellant] without
prejudice” since the victim in the case declined to participate
in prosecution. The SJA emphasized that Private EW’s
testimony was essential to proving that Appellant sexually
assaulted her. In addition, following the dismissal, the
convening authority referred the matter to a subordinate
commander to take any administrative action he found
appropriate. This step indicates to us that, without Private

   3  Though the change does not impact this case, we do note that
the 2018 amendments to the Manual for Courts-Martial, United
States will modify R.C.M. 707 to expressly incorporate the
judicially created “subterfuge” exception. Exec. Order No. 13,825,
83 Fed. Reg. 9889, 9969 (Mar. 8, 2018) (effective Jan. 1, 2019).




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            United States v. Hendrix, No. 18-0133/AR
                      Opinion of the Court

EW’s cooperation, the Government had no intention of
prosecuting the case.
   Repreferral occurred only after Private EW changed her
mind and informed the Government she would participate in
the court-martial process. It is true that, as the military
judge points out, no new evidence was found and no new
crimes were charged between dismissal and repreferral.
However, the fact that the complaining witness changed her
mind about testifying dramatically changed the strength of
the Government’s case. It makes sense that, given this
development, the Government would decide to pursue
charges after all. As even the military judge found, the fact
that repreferral occurred within days of Private EW
changing her mind signals that her lack of participation was
the driving reason behind the Government’s dismissal and
that the Government’s repreferral of the charges was
consistent with Private EW’s decision to finally testify.
    Unlike the military judge, we are not troubled by the fact
that the Government waited until April 14 to actually
dismiss the charges. As late as February 24, Private EW had
fluctuated in her willingness to participate, revealing
through her SVC that she might participate in prosecution
before changing her mind again in mid-March.4 According to
the PHO’s accounting of the days, the 120 days was set to
expire on April 23, nine days after the actual dismissal and
three weeks after the Government notified defense counsel
of its intention to dismiss. At no point did the Government
have reason to believe it was drawing dangerously close to
the expiration of the 120-day period.
   We also do not share the military judge’s concern that
repreferral under these circumstances placed Appellant in a
state of “perpetual jeopardy.” Allowing for a one-time
dismissal without prejudice followed by repreferral of the
charges because the victim changed her mind is not the
equivalent of allowing this process to happen multiple times,
creating a perpetual cycle. The military judge is free to

   4   Appellant briefly discusses and questions the Government’s
reasons for originally preferring the charges when they did not
have Private EW’s full cooperation, alleging they hoped to
facilitate Appellant’s making a request for administrative
separation. However, Appellant’s reasoning is based entirely on
supposition and does not factor into this Court’s examination of
the granted issue.



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            United States v. Hendrix, No. 18-0133/AR
                      Opinion of the Court

decide at any point whether there is subterfuge or an
improper reason behind a dismissal and whether the speedy
trial clock can start anew. Further, we are confident the
military judge will recognize when circumstances begin to
improperly infringe upon the accused’s Sixth Amendment
rights. Not only does R.C.M. 707 give the military judge
authority to make this determination at any time, the Sixth
Amendment right to a speedy trial protects the accused
against such perpetual prosecution.5 Finally, while we
conclude that dismissal and repreferral under these
circumstances is appropriate, we need not decide in this case
whether or when multiple dismissals might be deemed
improper.
    Both the SJA and Government counsel iterated that the
decision to dismiss the charges was prompted by Dep’t of
Defense, Instr. 6495.02, Sexual Assault Prevention and
Response (SAPR) Program Procedures (Mar. 28, 2013)
[hereinafter DoDI 6495.02]. The Instruction reads, in
relevant part, that:
       [T]he victim’s decision to decline to participate in
       an investigation or prosecution should be honored
       by all personnel charged with the investigation and
       prosecution of sexual assault cases .... If at any
       time the victim who originally chose the
       Unrestricted    Reporting     option   declines   to
       participate in an investigation or prosecution, that
       decision should be honored.

DoDI 6495.02 Encl. 4, para. 1(c)(1). Though adherence to
this Instruction does not impact the legality — or lack
thereof — of the Government’s actions, we will note that
dismissal further along in the process, when Private EW
clarified she did not want to participate, was in line with
DoDI 6495.02 as was the subsequent repreferral when
Private EW changed her mind.
   The military judge found that the PHO had improperly
excluded the twelve days of administrative delay from the
120-day period and, by extension, that the convening
authority dismissed the original charge three days after the
R.C.M. 707 clock had run out. We leave for another day the
question of whether the convening authority’s dismissal did


   5  Both parties were in agreement that the current case does
not violate Appellant’s constitutional Sixth Amendment rights.



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            United States v. Hendrix, No. 18-0133/AR
                      Opinion of the Court

or must occur within R.C.M. 707’s allotted 120 days. It is our
opinion that all issues surrounding the expiration of the 120-
day clock were waived when Appellant failed to object to the
twelve days of administrative delay at the time of the PHO’s
preliminary report6 and when the military judge failed to
make findings of fact or conclusions of law regarding
whether Appellant had good cause for his delayed challenge
to the PHO’s excludable delay determination. R.C.M. 405(k).
                      V. CONCLUSION
    The decision of the United States Army Court of
Criminal Appeals is affirmed. The stay of proceedings issued
by this Court on March 9, 2018, is hereby lifted. The record
is remanded to the Judge Advocate General of the Army for
return to the military judge for further proceedings
consistent with this opinion.




   6  R.C.M. 405(j)(5) states that any objection to the PHO’s
preliminary report shall be submitted to the convening authority
through the PHO within five days. Defense counsel did not make
any such objection in this case.




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