

   
   
   
   U.S. v. Becker



UNITED STATES, Appellee
v.
Steven L. BECKER, Sergeant First Class
U.S. Army, Appellant
 
No. 96-0659
Crim. App. No. 9400644
 
United States Court of Appeals for the Armed
Forces
Argued May 3, 2000
Decided July 24, 2000
EFFRON, J., delivered the opinion of the
Court, in which SULLIVAN, J., and COX, S.J., joined. GIERKE, J., filed
an opinion concurring in part and in the result and dissenting in part,
in which CRAWFORD, C.J., joined.

Counsel
For Appellant: Captain Kevin J. Mikolashek
(argued); Colonel Adele H. Odegard, Major Jonathan F. Potter,
and Major Scott R. Morris (on brief); Captain Thomas Jay Barrett.
For Appellee: Captain Katherine M. Kane
(argued); Colonel Russell S. Estey, Lieutenant Colonel Eugene
R. Milhizer and Captain Mary E. Braisted (on brief); Captain
Kelly R. Bailey.
Military Judge: Richard J. Hough

 

This opinion is subject
to editorial correction before publication.


Judge EFFRON delivered the opinion of the Court.
A general court-martial composed of officer
members convicted appellant, pursuant to his pleas, of conspiracy, wrongful
appropriation, larceny, and false swearing, in violation of Articles 81,
121, and 134, Uniform Code of Military Justice, 10 USC §§ 881,
921, and 934, respectively. He was sentenced to a dishonorable discharge,
total forfeitures, and reduction to E-1. The convening authority approved
the adjudged sentence. In an unpublished opinion, the Court of Criminal
Appeals affirmed the findings and only so much of the sentence as provides
for a dishonorable discharge, forfeiture of $550.00 pay per month until
the discharge is ordered executed, and reduction to E-1.
Our Court set aside the sentence and authorized
a sentence rehearing. 46 MJ 141 (1997). At the rehearing, appellant was
sentenced to a bad-conduct discharge, total forfeitures, and reduction
to E-1. The convening authority approved only so much of the sentence as
provides for a bad-conduct discharge and reduction to E-1. The Court of
Criminal Appeals then affirmed the sentence and directed the Judge Advocate
General of the Army to conduct an accounting audit and restore any forfeiture
of pay that had been taken improperly from appellant.
On appellants petition, we granted review
of the following issues:



I. WHETHER THE MILITARY JUDGE ERRED AS A
MATTER OF LAW WHEN HE DENIED THE DEFENSE MOTION [AT THE REHEARING] TO DISMISS
FOR VIOLATION OF APPELLANT'S RIGHT TO A SPEEDY TRIAL GUARANTEED UNDER THE
SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION, AND RULE FOR COURTS-MARTIAL
707.
II. WHETHER THE MILITARY JUDGE ERRED AS A MATTER
OF LAW AND TO THE SUBSTANTIAL PREJUDICE OF APPELLANT WHEN HE INCORRECTLY
INSTRUCTED THE PANEL MEMBERS [AT THE REHEARING], OVER DEFENSE OBJECTION,
THAT APPELLANT COULD BE SENTENCED TO A PERIOD OF CONFINEMENT IN EXCESS
OF 10 YEARS IN LIEU OF A PUNITIVE DISCHARGE, WHERE HIS ORIGINAL SENTENCE
INCLUDED NO CONFINEMENT.



For the following reasons, we affirm the decision
below.

I. SPEEDY TRIAL REQUIREMENTS AT A REHEARING
A. Background
Subsequent to our June 9, 1997, decision authorizing
a rehearing, the record was received by the general court-martial convening
authority at Fort Sill, Oklahoma, on July 1, 1997. Over the next 6 months,
the record was transferred between commands at Fort Sill and U.S. Army
Alaska pursuant to negotiations over who should conduct the rehearing.
Subsequently, the convening authority at Fort Sill referred the case for
a sentence rehearing on March 27, 1998. The rehearing began on May 13,
1998 -- 338 days after this Court's decision and 316 days after the record
had been transmitted to Fort Sill.
Although the rehearing was limited to the sentence,
defense counsel moved to dismiss the charges on the ground that appellant
had been denied his right to a speedy rehearing under RCM 707, Manual for
Courts-Martial, United States (1998 ed.), and the Sixth Amendment. The
military judge denied the motion, ruling that RCM 707 was not applicable
to a sentence-only rehearing and that the Sixth Amendment had not been
violated. In connection with the constitutional claim, the military judge
found that appellant had not been under any restraint or confinement during
the period in question; that the defense had made no demand for a speedy
rehearing; that appellant was "duly employed during this entire time" in
his civilian job while on appellate leave; that appellant suffered no specific
prejudice from the delay; and that, while the Government "moved slowly,"
it moved with "reasonable diligence" under the circumstances.

B. DISCUSSION
1. Speedy trial considerations in the military
justice system
The right to a speedy trial in the armed forces
is governed by constitutional, statutory, and regulatory provisions. See
U.S. Const. amend. VI; Barker v. Wingo, 407 U.S. 514 (1972); Arts.
10 and 33, UCMJ, 10 USC §§ 810 and 833, respectively; RCM 707(a);
United
States v. Kossman, 38 MJ 258 (CMA 1993). For a period of time, we held
that pretrial confinement of an accused for more than 90 days gave rise
to a presumption of denial of the statutory right to a speedy trial under
Articles 10 and 33. United States v. Burton, 21 USCMA 112, 44 CMR
166 (1971); United States v. Driver, 23 USCMA 243, 49 CMR 376 (1974).
Subsequently, the President promulgated RCM 707, establishing a 120-day
rule, along with specific criteria for calculating the beginning and end
of the 120-day time frame, as well as periods of exclusion.
In United States v. Flint, 1 MJ 428,
429 (CMA 1976), and United States v. Cabatic, 7 MJ 438 (CMA 1979),
we held that rehearings were covered by Burton's 90-day presumption.
These decisions reflected the applicability of the statutory protections
in Articles 10 and 33 to rehearings involving pretrial confinement.
In Kossman, we held that in light of
RCM 707's 120-day speedy trial rule -- which applied without regard to
pretrial confinement -- it was no longer necessary to apply Burton's
90-day speedy trial presumption as a means of ensuring compliance with
the statutory speedy trial right in Article 10. 38 MJ at 261-63. Neither
Kossman
nor any of the subsequent speedy trial cases addressed the question of
whether RCM 707 provided sufficient guidance with respect to rehearings
to satisfy the requirements of Articles 10 and 33 without strict application
of the 90-day Burton presumption as required by Flint and
Cabatic.
2. Rehearings and RCM 707
RCM 707(b)(3)(D) provides:



If a rehearing is ordered or authorized by
an appellate court, a new 120-day time period under this rule shall begin
on the date that the responsible convening authority receives the record
of trial and the opinion authorizing or directing a rehearing.



Although this provision makes no distinction between
a sentence-only rehearing and a rehearing that covers both findings and
sentence, other provisions of the rule contain provisions that are not
literally applicable to rehearings on sentence. See, e.g.,
RCM 707(a) and (b)(1) (the accused must be "brought to trial" within 120-day
time frame, where "brought to trial" means arraigned); RCM 707(a)(1)-(3)
(the trigger for speedy-trial clock is preferral of charges, imposition
of pretrial restraint, or entry on active duty); RCM 707(d) (the remedy
is dismissal of the affected charges, either with or without prejudice);
see
also United States v. Olinger, 45 MJ 644 (N.M.Ct.Crim.App. 1997);
United
States v. Wales, 35 MJ 501 (AFCMR 1992).
The Government contends that these provisions
indicate a Presidential intention to exclude rehearings on sentence. Such
an interpretation would be problematic under Kossman, however, where
we relied on the protections of RCM 707 to substitute for the Burton
90-day presumption as a means of protecting servicemembers' speedy trial
rights under Articles 10 and 33. Under Kossman, the absence of regulatory
protections implementing Articles 10 and 33 would lead us to either reinstate
the Burton-Flint-Cabatic 90-day presumption or develop another means
of ensuring compliance with these statutes. In that context, we view the
absence of language in RCM 707 specifically tailored to sentence-only rehearings
as a drafting oversight, rather than as a conscious decision to retain
the Burton-Flint-Cabatic 90-day presumption.
We conclude that the mechanics of RCM 707 can
be applied to sentence-only rehearings in a manner that will protect a
servicemember's rights under Articles 10 and 33 without applying the Burton-Flint-Cabatic
90-day presumption. Absent a modification of the rule by the President,
the procedures established under RCM 707 will be applied to sentence-only
proceedings in accordance with the following principles. First, the 120-day
clock will start on "the date that the responsible convening authority
receives the record of trial and the opinion authorizing or directing a
rehearing." See generally RCM 707(b)(3)(D). Second, the clock will
stop when the accused is "brought to" the bar for resentencing -- typically,
at the first session under Article 39(a), UCMJ, 10 USC § 839(a). See
generally RCM 707(a) and (b)(1). Third, if the Government has sufficient
reason to justify a delay, such as an inability to locate an accused on
appellate leave, "all [such] requests for . . . delay, together with supporting
reasons, will be submitted to the convening authority" prior to referral
or, "[a]fter referral, . . . to the military judge for resolution." See
generally RCM 707(c)(1). Finally, the remedy should be tailored to
the harm suffered, such as an appropriate sentence credit or, in a case
where the delay has interfered with the defense's ability to receive a
fair hearing, a sentence to no punishment at all. The remedy set forth
in RCM 707(d), dismissal of the charges with or without prejudice, which
is appropriate in the usual case of a speedy-trial violation that occurs
prior to the trial at which an accused's guilt is to be decided, is not
appropriate in the case of an accused whose guilt already has been determined,
and affirmed on appeal, and where the only remaining determination is the
sentence.
We note that the statutory basis for the speedy
trial rule under Articles 10 and 33 is pretrial confinement. We also note
that the President, in RCM 707, has extended the coverage of the speedy
trial rule to include periods dating from preferral of charges, even in
the absence of confinement. Similarly, in RCM 707(b)(3)(D), which provides
for application of the 120-day speedy trial protection to rehearings, the
President did not limit the protection to rehearings in which the accused
is in confinement. In that context, we conclude that the application of
speedy trial principles to sentence-only rehearings should include cases
that do not involve confinement, absent an express provision in the Rule
excluding such cases.
In the past, we have held that judicial standards
implementing nonconstitutional speedy trial requirements will be given
prospective effect only. See United States v. Cabatic, supra.
Similarly, the principles set forth in our decision today should be applied
in a prospective fashion.
3. Applicability to appellant
Under the foregoing principles, appellant is
not entitled to relief, even if we were to retroactively apply these principles
to appellant's case. Appellant has asked for dismissal of the charges as
his remedy. Such relief would be disproportionate to the harm suffered.
Further, he has made no showing that the delay had any impact on his rehearing.
See
Part I.B.4, infra.
4. Sixth Amendment considerations
The test for determining violations of the
Sixth Amendment right to speedy trial was set out in Barker v. Wingo,
supra.
It includes four factors for consideration: (1) length of delay; (2) reasons
for the delay; (3) appellant's demand for speedy trial; and (4) prejudice
to appellant. 407 U.S. at 530. Analysis of the facts of this case in light
of these factors leads us to conclude that appellant suffered no Sixth
Amendment violation.
Length of delay. The court below opined:



It is beyond challenge that, in the absence
of exceptional circumstances, it should not take the Government 337 days
to accomplish a sentence rehearing. By the time the Government had decided
which convening authority would conduct the sentence rehearing, 221 days
had elapsed.



Unpub.op. at 2. The Government has acknowledged
that "this passage of time could satisfy the first factor recognized in
Barker."
Final Brief at 14. We agree. See United States v. Grom, 21
MJ 53, 56 (CMA 1985).
Reasons for delay. Although appellant
ascribes ill motives to the delays back and forth between Fort Sill, Oklahoma,
and Fort Wainwright, Alaska, there is no evidence in the record to support
that allegation. Based on the evidence presented, the military judge concluded
that, while the pace was slow, the Government had acted with reasonable
diligence under all the circumstances. The record supports that conclusion.
Demand for speedy trial. Although appellant
asserted his speedy trial right at the outset of the rehearing, by that
time, of course, the delay had ended. At no time during the more-than-300-day
delay did appellant demand a speedy and prompt rehearing.
Prejudice from the delay. Appellant
has offered no evidence of prejudice that he suffered as a result of the
delay. He was not incarcerated or in any other way physically restrained;
he remained in his civilian life and at his civilian job virtually throughout
the period of delay; and there was no evidence that his ability to present
a defense and to receive a fair proceeding and sentence had been impaired.
See
Grom, supra at 57.
Under these circumstances, notwithstanding
the lengthy delay, we hold that appellant has suffered no violation of
his Sixth Amendment right to speedy trial at his sentencing rehearing.

II. SENTENCE INSTRUCTIONS
The initial sentence, prior to our first review
of the case, included a dishonorable discharge but no confinement. At the
sentence rehearing, the military judge instructed the members, over defense
objection, that the panel could adjudge confinement or hard labor without
confinement in lieu of the dishonorable discharge, as long as any sentence
to confinement was less severe than the punitive discharge. See generally
Art. 63, UCMJ, 10 USC § 863; United States v. Smith, 12 USCMA
595, 597, 31 CMR 181, 183 (1961). Later, he instructed the members as to
their voting procedure and told them that any sentence to confinement in
excess of 10 years required the concurrence of three-fourths of the members.
On appeal, appellant contends that the combined
effect of these instructions led the members to believe that they could
adjudge confinement for 10 years or more in lieu of a punitive discharge.
He argues that such lengthy confinement not only is more severe in the
abstract than a dishonorable discharge, it is particularly severe in the
context of a case in which the sentencing occurred more than 4 years after
the trial and where appellant long before had successfully reentered civilian
life.
Notwithstanding the instruction and the arguably
increased vulnerability to which it exposed appellant, the sentence adjudged
by the members consisted of a bad-conduct discharge (less severe than the
available dishonorable discharge) and no confinement. In this light, it
is clear that the members, and the sentence that they adjudged, were unaffected
by the instruction and that any error was harmless. See Smith,
supra
at 596, 31 CMR 182.

III. DECISION
The decision of the United States Army Court
of Criminal Appeals is affirmed.


GIERKE, Judge, with whom CRAWFORD, Chief Judge,
joins (concurring in part and in the result and dissenting in part):
I agree with the Court of Criminal Appeals
that RCM 707 does not apply to sentence rehearings. I disagree with any
attempt to stretch the rule to apply to sentence rehearings or to engage
in judicial rule-making.
I agree that neither Article 10 nor Article
33 are implicated in this case, because they both are triggered by imposition
of arrest or confinement. I agree that the Sixth Amendment was not violated
in this case.


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