

   
   
   
   U.S. v. Underwood



IN THE CASE OF
UNITED STATES, Appellee
v.
Paul J. UNDERWOOD III, Senior Airman
U.S. Air Force, Appellant
 
No. 98-0275
Crim. App. No. 32633
 
United States Court of Appeals for the Armed
Forces
Argued October 6, 1998
Decided May 11, 1999
SULLIVAN, J., delivered the opinion of
the Court, in which COX, C.J., CRAWFORD and GIERKE, JJ., and EVERETT, S.J.,
joined.
Counsel
For Appellant: Captain Patience E. Schermer
(argued); Colonel Douglas H. Kohrt (on brief); Captain Harold
M. Vaught.
For Appellee: Major Steven B. Thompson
(argued); Lieutenant Colonel Anthony P. Dattilo and Lieutenant
Colonel Michael J. Breslin (on brief); Major Ronald A. Rodgers.
Military Judge: Willard L. Pope

 

THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.


Judge SULLIVAN delivered the opinion of the Court.
During October of 1996, appellant was tried
by a general court-martial consisting of officer and enlisted members at
Elmendorf Air Force Base, Alaska. Contrary to his pleas, he was found guilty
of rape, forcible sodomy, indecent assault of A.G., and providing
alcohol to A.G. while she was a minor, in violation of Articles 120, 125,
and 134, Uniform Code of Military Justice, 10 USC §§ 920, 925,
and 934, respectively. He was sentenced to a dishonorable discharge, 3
years confinement, total forfeitures, and reduction to E-1. On
March 26, 1997, the convening authority approved the adjudged sentence
but waived the total forfeitures for 6 months and ordered their payment
as support to appellants family. The Court of Criminal Appeals affirmed
the findings and approved sentence. 47 MJ 805 (1997).
This Court granted review on June 22, 1998,
on the following issues:




I.
WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS
ERRED WHEN IT FOUND THAT THE CONVENING AUTHORITYS WITHDRAWAL AND RE-REFERRAL
OF CHARGES WAS PROPER, EVEN THOUGH SUCH ACTION UNDENIABLY CIRCUMVENTED
THE MILITARY JUDGES RULING DENYING THE PROSECUTIONS REQUEST FOR A CONTINUANCE
OF THE PROCEEDINGS.

II.
WHETHER THE APPLICATION OF ARTICLES 57(a) AND
58b, UCMJ, VIOLATE THE EX POST FACTO CLAUSE OF THE
UNITED STATES CONSTITUTION WITH RESPECT TO APPELLANT.



We hold that the Court of Criminal Appeals did
not err when it held that the convening authoritys withdrawal of charges
from a prior court-martial was proper within the meaning of RCM 604(b),
Manual for Courts-Martial, United States (1998 ed.), and their re-referral
to
the present court-martial was lawful. See United States v. Koke,
34 MJ 313, 315 (CMA 1992); United States v. Blaylock, 15 MJ 190,
195 (CMA 1983).
The Court of Criminal Appeals summarized the
facts of this case concerning the first granted issue:



The offenses for which appellant was convicted
occurred in Anchorage, Alaska. On or about 4 July 1995, AG, who then was
20 years old, reported to local police authorities that appellant raped
her on or about 2 July 1995. In early August 1995, Alaska state prosecutors
determined not to pursue action against appellant, and the Anchorage Police
Department report was referred to the Air Force Office of Special Investigation
(AFOSI) detachment at Elmendorf Air Force Base (AFB), Alaska. After receipt
of the AFOSI report in December 1995, appellants commander, on 2 February
1996, preferred charges of rape, forcible sodomy, indecent assault, and
providing alcohol to a minor. An additional charge of rape of LM was preferred
against appellant on 9 February 1996.
These charges were referred for trial on 1
April 1996. The original trial date was 3 June 1996, but an unopposed
defense request for delay until 10 June 1996 was granted by the military
judge. On 3 June 1996, the Government requested a delay until 28 June 1996.
The reason provided by the Government for the delay was witness availability
problems. Specifically, one of the putative victims, AG, had received an
opportunity for long awaited employment with Alaska Airlines, and the job
required training in Seattle, Washington, for the remainder of June. Further,
AG did not want her prospective employer to know anything about the trial,
and she asked the Government to seek a delay. Faced with these circumstances,
the Government opted not to subpoena AG but seek the delay. In an RCM 802
session, the military judge denied the delay. On 5 June 1996, at another
RCM 802 session, the Government formally requested the military judge to
reconsider his decision denying the delay, but the military judge adhered
to his initial decision and again denied the request for delay. After consulting
with both putative victims, and receiving advice from the staff judge advocate,
on
7 June 1996, the convening authority withdrew all charges and, de facto,
dismissed them, as appellants commander again preferred the charges
(the convening authoritys letter reflects only that the charges were withdrawn;
no disposition was mentioned; see United States v. Britton,
26 MJ 24 (CMA 1988); United States v. Gray, 26 MJ 16, 21 (CMA 1988)(Everett,
C.J., concurring in result); United States v. Weatherspoon, 39 MJ
762, 766 (ACMR 1994)).
The charges were again investigated, Article
32, UCMJ, 10 USC § 832, on 23 July 1996, and were referred for trial
on 16 August 1996 (the second referral failed to instruct that the
rape charges were referred as non-capital, but all parties at the trial
agreed that it was an oversight and tried the case as a non-capital case).
By the time all the parties schedules and the circuits docket were reconciled,
the Chief Circuit Military Judge set 7 October 1996 as the trial date,
on which date proceedings commenced.
The record and allied papers also reflect another
salient event to which the military judge alludes but without elaboration:
on 22 May 1996, a second additional charge (initially, the charge involving
LM was Additional Charge I) was preferred against appellant for divers
rapes of his former wife, RL, while they were married. On 30 May 1996,
the Investigating Officer recommended the charge and specification not
be referred for trial due to insufficient evidence of force. On 12 June
1996, the convening authority accepted this recommendation and directed
"withdrawal" of the charge and specification and returned it to appellants
commander for disposition pursuant to RCM 404(b). We infer it eventually
was dismissed.



(Emphasis added.)
At an Article 39(a), UCMJ, 10 USC § 839(a),
session during the second court-martial, the defense moved to dismiss with
prejudice all the charges referred to it on the grounds of a lack of jurisdiction.
In the alternative, it requested that the charges involving A.G. be dismissed
with or without prejudice. The military judge, the same judge who had denied
the Governments request for a continuance at the first court-martial,
denied this motion. The record states:



MJ: Ive had a chance to review the facts
stipulated by the parties and reviewed the law. Ill [sic] guess Ill amplify
the facts. I wont change them any, but just to make sure the record understands
what was going on in the previous trial, Lieutenant Colonel Hasskamp was
originally detailed as is mentioned in the stipulated facts. He granted
a delay and the triggering event for that delay was adding another additional
charge and the case became mine because he had a conflict on the agreed
upon date and I emphasize agreed upon date. At that point in time, the
Government agreed to try this case on whatever it was, 10 June, and I would
have assumed that they would have coordinated with their witnesses and
that all the things necessary to be prepared to try the charges that were
known to them at that point in time and so that was a factor in my decision
to be somewhat hard-nosed with the Government about going to trial especially
when the triggering event did not come to pass and I wasnt privy to what
was going on, but the triggering event was the additional charge and the
additional charge, at that time, had not been referred. I was not
aware that it was not going to be referred.
So, the reason for the delay wasnt happening
and then the agreed upon date was no longer a good date and it was somewhat
irritating. So, therefore, part of my process of holding the Governments
feet to the fire was they had done kind of a sloppy job of managing this
case and when I gave them the choice of what to do in the sense of if youre
going to go on the date scheduled, youll have some choices to make. One
of the choices I anticipated they might do is withdraw these charges, but
if they did that theyd have to go back to the convening authority and
explain why were doing this and I thought that might be a good management
lesson for the prosecution of this case, so that was not shocking to me
that they would withdraw the charges. Nor was it a shock to me that they
re-referred the charges.
Now, had the Government been able to go to
trial on the 28th of June, I think was the day they requested.
CTC: The 28th of May or the 10th
of June?
MJ: No, the date they requested. They
had requested, I think, 28 June.
CTC: Oh, I see. Yes, your Honor.
MJ: Had they been able to go on 28 June,
then they would have thwarted my ruling, but they couldnt do that, so
my ruling which denied a continuance as far as based on the facts and the
law was not thwarted. The Government did not get to do what they wanted
to do which was go to trial with all these charges on the 28th
of June 1996. Their choice, if they chose to go forward, was to do it at
some date down the road. Before doing
that, they would have to re-prefer, have another investigation providing
the accused additional benefits, additional inquiries, additional opportunity
for an investigating officer to recommend it not go to trial, additional
opportunity for the convening authority to decide not to take these charges
to this forum or to a different forum and thats what did transpire in
this case.
So, the bottom line is, your Motion is Denied.
I
see no interference at all with this court in any manner. The convening
authority exercised prosecutorial discretion as to what he and his lawyers
chose to do after this case ended the first time.

* * *
So, the facts are pretty much as agreed to
by the parties. I reserve the right to go through the law a little more
specifically at the end of the trial and make conclusions of law that are,
I guess, more detailed should I find it necessary, but the bottom line
is I see even no appearance of interference with the judges ruling.
A judges ruling is--if youre going to go to trial on June 10th
with all these charges or youre not going to go to trial and thats what
happened. They didnt go to trial and thats fine.
Theres a long and involved process which got us here today which is in
the discretion of the convening authority. Were not going to a different
forum. Charges havent been drastically altered. I have no evidence of
an improper motive before me. So, other than balance what the convening
authority assumes his various interests are and get us to trial at a later
date with all the charges before the court today.
So, as I said, the Motion is denied.
This is a matter of judicial analysis. In some
ways, what I did was I forced a dismissal without prejudice. I mean, they
withdrew the charges. Its almost analogous to a 707 violation to note
no prejudice. What happens is you start all over again and the opposite
of that is I was intending the case to go sooner than later.



(Emphasis added.)
___ ___ ___
Appellant asserts that the Court of Criminal
Appeals erred in holding that the convening authoritys withdrawal of the
charges in this case from a prior court-martial was "proper" within the
meaning of RCM 604(b),1 and
that his re-referral of the charges to the present court-martial was also
lawful. He also contends that the lower appellate court erred in concluding
that, if there was legal error in this case under RCM 604(b), it caused
him no prejudice. We agree with the court below that the convening authoritys
withdrawal was proper and his re-referral action was neither unlawful nor
unfairly prejudicial to appellant. See generally Vanover
v. Clark, 27 MJ 345, 348 (CMA 1988)(question of improper re-referral
under RCM 604(b) is not a jurisdictional matter).
Appellants initial argument is that the Court
of Criminal Appeals erred by not deciding the RCM 604(b) withdrawal question
in his favor, as purportedly required by this Courts decision in
Vanover.
He contends that case holds that a withdrawal is "improper" for purposes
of RCM 604(b) when the "practical effect of the convening authoritys
withdrawal and subsequent re-referral was to overturn the military judges
ruling." Final Brief at 6. He further asserts that the practical effect
of the convening authoritys actions was to allow the Government to go
to trial after June 28, 1996, as requested by the Government and repeatedly
denied by the military judge at the first court-martial. We disagree.
Appellants second court-martial began on October
7, 1996, almost 4 months after the June 28, 1996, starting date requested
by the Government and rejected by the trial judge. It also occurred after
a new Article 32 investigation was conducted and a re-referral action taken
by the convening authority, matters not expressly addressed by the trial
judges earlier rulings. Finally, as stated by the same trial judge who
sat at both courts-martial, his earlier rulings did not implicitly preclude,
nor did he intend to preclude, the burdensome procedural course of action
chosen by the convening authority. In sum, this case is not Vanover,
because a trial judges ruling was not clearly flouted. In Vanover,
an evidentiary ruling specifically prohibiting the admission of certain
acts of uncharged misconduct at the first court-martial was flouted by
charging the excluded misconduct at the second court-martial.
Appellant next argues that the Court of Criminal
Appeals erred in deciding the RCM 604(b) question in violation of this
Courts decision in Petty v. Moriarty, 20 USCMA 438, 43 CMR 278
(1971). He contends that Petty holds a convening authoritys withdrawal
action is improper and a re-referral is unlawful when they constitute an
illegal interference with the exercise of the judicial function of granting
or denying a continuance under Article 40, UCMJ, 10 USC § 840.
Petty,
20 USCMA at 441, 43 CMR at 281. He finally asserts that such an
evasion of the trial judges continuance rulings occurred in his case and
his conviction, therefore, should be set aside. We again disagree.
In Petty, this Court found the convening
authoritys actions were "illegal interference with the exercise of the
judicial function" because they violated a particular Manual provision
on continuances, i.e., para. 67f, Manual for Courts-Martial,
United
States (1969 Rev. ed.).2 That
provision established a normal procedure for the convening authority to
attempt to overturn a military judges continuance decision, which did
not include withdrawal and re-referral of charges. See also
United States v. Sears, 20 USCMA 380, 383, 43 CMR 220, 223 (1971)
(Manual provisions violated which prohibited convening authority from coercing
military judge to change trial continuance rulings); United States v.
Knudson, 4 USCMA 587, 593, 16 CMR 161, 167 (1954). Paragraph
67f was not in existence at the time of appellants first or second court-martial;
nor was it otherwise retained in the present Manual as established procedure
for contesting a military judges continuance ruling. See United
States v. Ware, 1 MJ 282 (CMA 1976); cf. RCM 906(b)(1) and 908.
Accordingly, the convening authoritys withdrawal and re-referral actions
did not constitute "illegal" interference with the judicial function in
the sense of Petty v. Moriarty, supra.
Finally, we address specifically the assigned
issue in appellants case, i.e., whether the lower appellate court
erred in holding that the convening authority acted properly in his withdrawal
and re-referral of charges. See RCM 604(b). Our case law has construed
"proper" in this context as a legitimate command reason which does not
"unfairly" prejudice an accused in light of the particular facts of a case.
See
Blaylock, 15 MJ at 195; United States v. Jackson,
1 MJ 242, 244 (CMA 1976); United States v. Walsh, 22 USCMA 509,
512, 47 CMR 926, 929 (1973). There is no dispute in this case that the
convening authority accomplished his withdrawal and re-referral actions
to accommodate the alleged victims schedule and avoid the issuance of
a subpoena. This clearly was a legitimate command objective or reason within
the meaning of RCM 604(b). See Koke, 34 MJ at 315 (withdrawal
for purposes of judicial economy by trying all known charges at once was
a proper reason); see generally 42 USC § 10606.
We further hold that appellant was not substantially
prejudiced by this withdrawal and re-referral. See United States
v. Koke, supra. The second court-martial was the same type as
the first court-martial (i.e., a general court-martial),
and it was before the same military judge. Cf. United States
v. Fleming, 18 USCMA 524, 40 CMR 236 (1969) (case referred to new court-martial
and new law officer after previous law officer rejected plea); Blaylock,
supra
at 195 (re-referral to a court-martial authorized to impose a more severe
punishment as retaliation for exercise of a legal right by an accused not
a proper reason). Moreover, appellant did not lose the benefit of a favorable
trial ruling as a result of the commands actions. The trial judges earlier
continuance denials created no legally cognizable right to a trial without
the prosecution witness on June 20, 1996; nor can the speculative
possibility of such an occurrence in any sense be considered substantial.
Art. 59(a), UCMJ, 10 USC § 859(a); cf.
Vanover v.
Clark, supra; United States v. Fleming,
supra.
Also, appellant was not in pretrial confinement
during the withdrawal and re-referral process; nor did he make any
pretrial motion at the second court-martial based on any prejudicial trial
delay. See United States v. Abel, 469 U.S. 45 (1984) (prejudice
not prohibited but only undue prejudice). Finally, the military judge clearly
dispelled on the record any suggestion of unlawful command influence by
the convening authority with respect to himself and these proceedings ("I
see no interference at all with this court in any manner."). Cf.
Vanover,
supra
at 348, citing Walsh, supra at 512.

IV
The decision of the United States Air Force
Court of Criminal Appeals is affirmed. Collection of any forfeitures, and
execution of the reduction in grade prior to the date of the convening
authoritys action, are hereby declared to be without legal effect. Any
forfeitures already collected from appellant, and any pay and allowances
withheld because of the premature reduction in grade, will be restored.
The record of trial is returned to the Judge Advocate General of the Air
Force for appropriate action.3
FOOTNOTES:

1 RCM 604 provides:





Rule 604. Withdrawal of Charges
(a) Withdrawal. The convening
authority or a superior competent authority may for any reason cause any
charges or specifications to be withdrawn from a court-martial at any time
before findings are announced.
(b) Referral of withdrawn charges.
Charges
which have been withdrawn from a court-martial may be referred to another
court-martial unless the withdrawal was for an improper reason. Charges
withdrawn after the introduction of evidence on the general issue of guilt
may be referred to another court-martial only if the withdrawal was necessitated
by urgent and unforeseen military necessity.



(Emphasis added.)
 
2 Paragraph
67f states in pertinent part:





Likewise, the convening authority
may not direct the military judge or the president of a special court-martial
without a military judge to reconsider a ruling on a motion to grant appropriate
relief or a ruling granting a request for a continuance. In returning the
record of proceedings to the court, the convening authority will include
a statement of his reasons for disagreeing, together with instructions
to reconvene and reconsider the ruling with respect to the matter in disagreement.
Except as provided in 122b(3) he will not refer to or include in his communication
any factual information relative to the ruling in question which is not
already a part of the record nor will he direct the court to consider any
evidence or information other than that which is already in the record.
To the extent that the matter in disagreement relates solely to a question
of law, as, for example, whether the charges allege an offense cognizable
by a court-martial, the military judge or the president of a special court-martial
without a military judge will accede to the view of the convening authority.
If the matter in disagreement relates to issues of fact, as, for example,
whether an officer exercising general court-martial jurisdiction has unconditionally
restored a suspected deserter to duty without trial with knowledge of the
alleged desertion (68f), the military judge or special court-martial without
a military judge will exercise his or its discretion in reconsidering the
motion.
If the convening authority does not
return the record for reconsideration, he will take the necessary action
to conclude the case by publishing appropriate orders. See generally 82,
83, and 85b.
When a motion to grant appropriate
relief has been granted by the military judge or the president of a special
court-martial without a military judge, the convening authority may cause
appropriate action to be taken to remedy the defect and, if appropriate,
may return the record to the court or another court for appropriate further
action. If he does not return the record to the court or arrange for trial
by another court, as when a motion for change of venue has been granted
(69e), he will dismiss the charges to which the motion relates.



(Emphasis added.)
3  A
second issue was granted in this case. It is affirmed under the majority
opinion of this Court in United States v. Gorski, 47 MJ 370 (1997);
cf.
id. at 376-77 (Sullivan, J., concurring in
part and in the result); see United States v. Menge,
48 MJ 490
(1998).
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