UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                      Before
                         HOLDEN, HOFFMAN, and SULLIVAN
                             Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                        Private E2 JARROD R. MCCLAIN
                          United States Army, Appellant

                      ARMY 20051215 and ARMY 20051331

                      7th Infantry Division and Fort Carson
                        Michael J. Hargis, Military Judge
                   Colonel Kent R. Meyer, Staff Judge Advocate

For Appellant: Colonel John T. Phelps, II, JA; Lieutenant Colonel Steven Henricks,
JA; Major Fansu Ku, JA; Captain Patrick B. Grant, JA (on brief).

For Appellee: Colonel John W. Miller, II, JA; Major Elizebeth G. Marotta, JA;
Captain Michael C. Friess, JA; Captain Jaired D. Stallard, JA (on brief).

                                     3 January 2008
                           -----------------------------------------
                                OPINION OF THE COURT
                           -----------------------------------------

SULLIVAN, Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of absence without leave (AWOL) (two specifications) and
wrongful use of marijuana, in violation of Articles 86 and 112a, Uniform Code of
Military Justice, 10 U.S.C. §§ 886 and 912a [hereinafter UCMJ]. Contrary to his
pleas, the military judge convicted appellant of two additional AWOL specifications,
but acquitted appellant of missing movement under Article 87, UCMJ. The
convening authority approved the adjudged findings and sentence to a bad-conduct
discharge, confinement for fifty-three days, and reduction to Private E1.

       In a separate court-martial the following month, a panel consisting of officer
members sitting as a special court-martial convicted appellant, contrary to his pleas,
of failure to repair (FTR), wrongful use of marijuana, wrongful use of cocaine, and
breaking restriction, in violation of Articles 86, 112a, and 134, UCMJ. Appellant
was acquitted of making a false official statement under Article 107, UCMJ. He was
sentenced to a bad-conduct discharge and six months confinement. Both cases are
before us for review under Article 66, UCMJ. Given the complexity of the
intertwined issues discussed below, we will decide both cases in this single opinion.
MCCLAIN – 20051215 and 20051331


                                  BACKGROUND

       Appellant’s first court-martial involved charges listed on three separate
charge sheets. As to the first set of charges (original charges), appellant contended
he was denied his right to a speedy trial under Rule for Court-Martial [R.C.M.] 707,
Manual for Courts-Martial, United States (2005 ed.) [hereinafter MCM]. 1 Prior to
the motion hearing, both parties agreed 154 days had elapsed from preferral to
arraignment. The parties then litigated the number of additional days to be excluded
for appellant’s AWOL periods.

      After extensive litigation, including testimony of witnesses to one of the
contested AWOL specifications, the military judge denied the defense motion. He
concluded the 120-day speedy trial rule had not been violated because only 119
elapsed days were attributable to the government. With the consent of both parties,
the military judge considered the evidence presented during the motion for the
contested AWOL specifications and accepted additional prosecution and defense
exhibits.

       After considering the additional evidence, the military judge realized he erred
in calculating the inception and termination dates for appellant’s various AWOL
periods. The military judge revisited his calculations sua sponte and concluded 124
days had elapsed between preferral and arraignment on the original charges. The
government argued for subtraction of additional days from that total for each of
appellant’s FTRs. The military judge denied that request, concluding there was no
basis upon which to calculate “duration” of a failure to repair. Accordingly, the
military judge reversed himself, granted the defense motion, and dismissed the
affected original charges without prejudice. The government did not appeal the
military judge’s dismissal ruling under Article 62, UCMJ, and R.C.M. 908. 24

1
 “The accused shall be brought to trial within 120 days after the earlier of: (1)
Preferral of charges . . . .” R.C.M. 707(a).
2
  “In a trial by court-martial in which a military judge presides and in which a
punitive discharge may be adjudged, the United States may appeal . . . an order or
ruling of the military judge which terminates the proceedings with respect to a
charge or specification.” Article 62(a)(1), UCMJ. Had the government successfully
appealed the military judge’s ruling, double jeopardy would not preclude further
proceedings. See R.C.M. 908.




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MCCLAIN – 20051215 and 20051331


       Trial on the merits continued for the remaining charges unaffected by the
dismissal; the military judge entered findings and a sentence for those offenses and
adjourned the proceedings. One week later, at the request of the government, the
military judge conducted a post-trial session under Article 39(a), UCMJ. Over
defense objection, the military judge changed his speedy trial remedy of dismissal
for the affected charges and granted a government request for mistrial instead.

       On 21 October 2005, several charges arising from the same misconduct
contained in the previously dismissed charges were referred to a special court-
martial, as well as additional new charges (second court-martial). 35 At the second
court-martial, defense counsel moved to dismiss the offenses dismissed at the first
court-martial based on double jeopardy. The military judge ruled that jeopardy had
attached to the original charges at appellant’s first trial. The military judge further
ruled he did not abuse his discretion in reconsidering the original dismissal and
declaring a mistrial on the original charges, and denied the defense motion. 46
Ultimately, the panel convicted appellant of FTR and breaking restriction, which
were part of the original charges, as well as wrongful use of cocaine and marijuana.

                                    DISCUSSION

       Appellant asserts the military judge abused his discretion by granting a post-
trial mistrial as a remedy for a speedy trial violation of R.C.M. 707. In our analysis,
three separate issues require discussion: (1) the military judge’s dismissal without

3
  Ironically, although the military judge eventually declared a mistrial for the
affected charges, the government still elected to prefer the charges anew. The
charges referred to a second court-martial which the military judge dismissed at the
first court-martial were: The Specification of Charge I (failure to repair), The
Specification of Charge II (false official statement), Specification 1 of Charge III
(wrongful use of marijuana), and Specifications 1 and 2 of Charge V (breaking
restriction). Specification 1 of Charge V was originally charged as a violation of a
lawful order (Article 92, UCMJ) at the first court-martial; the gravamen of that
offense was breaking restriction (Article 134, UCMJ), as referred at the second
court-martial.
4
    R.C.M. 915(c)(2):

        A declaration of a mistrial shall not prevent trial by another court-
        martial on the affected charges and specifications except when the
        mistrial was declared after jeopardy attached and before findings, and
        the declaration was:

        (A) An abuse of discretion and without the consent of the defense; or

        (B) The direct result of intentional prosecutorial misconduct designed
        to necessitate a mistrial.


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MCCLAIN – 20051215 and 20051331


prejudice for violation of R.C.M. 707; (2) the military judge’s post-trial substitution
of a mistrial for the earlier dismissal without prejudice; and (3) the implications of
the double jeopardy clause on those rulings.

                  Military Judge’s Remedy for R.C.M. 707 Violation

       In the military justice system, a service member’s right to a speedy trial arises
from several sources: the Sixth Amendment, Article 10, UCMJ, and R.C.M. 707. 57
See United States v. Kossman, 38 M.J. 258, 259 (C.M.A. 1993); United States v.
Tippit, 65 M.J. 69, 80 (C.A.A.F. 2007). As previously stated, R.C.M. 707 requires a
person be brought to trial within 120 days of preferral of charges. See also United
States v. Birge, 52 M.J. 209, 210 (C.A.A.F. 1999). The purpose of this time limit is
to protect speedy trial rights under the Sixth Amendment and Article 10, UCMJ, and
society’s interest in the prompt administration of justice. R.C.M. 707 analysis at
A21-41 (citing United States v. Walls, 9 M.J. 88 (C.M.A. 1980)).

       The remedy for an R.C.M. 707 violation is modeled on the Federal Speedy
Trial Act, 18 U.S.C. § 3162 [hereinafter FSTA]. 69 Under R.C.M. 707(d), dismissal of
an affected charge may be with or without prejudice to re-preferral of charges for the
same offense. 710However, if the speedy trial violation is of constitutional dimension,
the only remedy is dismissal with prejudice under R.C.M 707 and the FSTA. United
States v. Strunk, 412 U.S. 434 (1973); United States v. Edmund, 41 M.J. 419, 421
(1995), vacated on other grounds, 516 U.S. 802 (1995).

       Rule for Courts-Martial 707 provides four factors for evaluating whether an
affected charge should be dismissed with or without prejudice: “the seriousness of
the offense; the facts and circumstances of the case that lead to dismissal; the impact
of a reprosecution on the administration of justice; and any prejudice to the accused
resulting from the denial of a speedy trial.” R.C.M. 707(d); see also Edmund, 41
M.J. at 421 (noting the similarities between R.C.M. 707(d) and the FSTA); United
States v. Taylor, 487 U.S. 326, 333 (1988) (“[C]ourts are not free simply to exercise
their equitable powers [in formulating] an appropriate remedy, but, in order to




5
 At trial, appellant conceded there was no violation of his statutory or constitutional
speedy trial right. Article 10, UCMJ; U.S. Const. amend. VI.
6
    R.C.M. 707(d) analysis at A21-42.
7
 R.C.M. 707(d) was amended in 1991 specifically to permit dismissal without
prejudice in the absence of a constitutional violation. Exec. Order No. 12767, 56
Fed. Reg. 30284 (1991).




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MCCLAIN – 20051215 and 20051331


proceed under the [FSTA], must consider at least the three specified factors.”). 811As
the Supreme Court previously noted in relation to the FSTA, “[d]ismissal without
prejudice is not a toothless sanction; it forces the Government to obtain a new
indictment if it decides to reprosecute, and it exposes the prosecution to dismissal on
statute of limitation grounds.” Taylor, 487 U.S. at 342.

       The decision to dismiss with or without prejudice is left to the sound
discretion of the military judge. United States v. Dooley, 61 M.J. 258, 262
(C.A.A.F. 2005). Neither form of dismissal is mandated by R.C.M. 707(d).
Edmund, 41 M.J. at 421; see also Taylor, 487 U.S. at 334 (“[C]ongress did not
intend any particular type of dismissal to serve as the presumptive remedy for a
Speedy Trial Act violation.”). A military judge’s “judgment of how opposing
considerations balance should not lightly be disturbed.” Edmund, 41 M.J. at 421
(quoting Thomas, 487 U.S. at 337). “[T]he standard requires that the military judge
be clearly wrong in his determination of the facts or that his decision be influenced
by an erroneous view of the law.” Dooley, 61 M.J. at 262. “Deference to the
military judge’s decision is particularly prudent in those cases when a violation of
R.C.M. 707(d) has occurred.” Id.

       In this case, the military judge properly considered the four factors identified
in R.C.M. 707(d). Foremost, as the military judge noted and appellant
acknowledged, there was no violation of constitutional dimension. Appellant did not
suffer any specific prejudice by the delay. Provided an opportunity to articulate any
such prejudice, appellant did not claim the delay affected his trial preparation or
cause any specific harm. See United States v. Proctor, 58 M.J. 792, 797-98
(A.F.C.M.R. 2003) (appellant’s failure to allege any specific prejudice, other than
lengthy pretrial confinement, is a factor weighing against dismissal with prejudice
for a R.C.M 707 violation). Similarly, we find no “indication [in the record] of the
slightest impact on [appellant’s] right to a fair trial.” Edmund, 41 M.J. at 422.

       Although appellant did not allege any specific prejudice, he asserted the
affected charges were relatively minor and that periods of inactivity by the
government regarding the offenses amounted to neglect. Accordingly, appellant
maintained he was entitled to the inference of “intentional dilatory conduct,” thereby
demonstrating prejudice from the R.C.M. 707 violation. The facts of this case,
however, militate against this conclusion. Appellant himself showed little interest in
a speedy trial. The deductions from the 154 days between preferral and arraignment
included three separate periods of AWOL and two defense delays of the Article 32,
UCMJ, investigation. As the military judge properly concluded, the periods of delay
attributable to the government were related to its efforts to present all known
charges to the Article 32, UCMJ, investigating officer. See R.C.M. 906(b)(10)

8
 The FSTA provides for factors similar to R.C.M. 707(d): “the seriousness of the
offense; the facts and circumstances of the case which lead to the dismissal; and the
impact of a reprosecution on the administration of this chapter and the
administration of justice.” 18 U.S.C. § 3162(a)(2).


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MCCLAIN – 20051215 and 20051331


(“[O]rdinarily, all known charges should be tried at a single court-martial.”). It was
appellant’s own continuing misconduct that necessitated the three separate charge
sheets at his first court-martial. We agree, therefore, with the military judge’s
findings of a lack of intentional dilatory conduct on the part of the government. See
Edmund, 41 M.J. at 421 (the R.C.M. 707 violation was not due to “intentional
dilatory conduct” on the part of the government).

       Finally, the record supports the military judge’s finding of minimal impact
from reprosecution of the affected charges. Charges were re-preferred shortly after
the conclusion of the first court-martial. Moreover, the length of the R.C.M. 707
violation was de minimis, only four days beyond the 120-day period. Cf. Thomas,
487 U.S. at 340 (under the FSTA, the length of delay is linked to the seriousness of
the speedy trial violation; the longer the delay, the greater prejudice to the
defendant).

       Based upon these facts, we find that the military judge did not abuse his
discretion in dismissing the charges without prejudice.

                Military Judge’s Post-Trial Declaration of Mistrial

       We next address the military judge’s changed ruling on the speedy trial
remedy from dismissal without prejudice to mistrial. 912The standard of review for a
military judge’s determination of a mistrial is “abuse of discretion.” United States v.
Harris, 51 M.J. 191, 196 (C.A.A.F. 1999).

       Our jurisprudence has long recognized that mistrial and dismissal are not the
same. See e.g., United States v. Platt, 21 U.S.C.M.A. 16, 44 C.M.R. 70 (1971); cf.
United States v. Weatherspoon, 39 M.J. 762, 766 (A.C.M.R. 1994) (error by military
judge to find that dismissal and withdrawal have the same impact). “A declaration
of a mistrial shall have the effect of withdrawing the affected charges and
specifications from the court-martial.” R.C.M. 915(c)(1). The charges, however,
remain preferred. Weatherspoon, 39 M.J. at 766. Therefore, after a mistrial the
convening authority has the option of referring the charges again or otherwise
disposing of them. R.C.M. 915(c) discussion.

      The option of referring the charges anew does not exist where charges are
dismissed. “[W]ithdrawal of charges . . . extinguishes the jurisdiction of a court-

9
  Given our disposition below, we need not address the authority of the military
judge to conduct a “post-trial hearing” on his dismissal of charges, other than to note
the tension between R.C.M. 905(f) (prior to authentication, the military judge may
reconsider any ruling he has made other than one amounting to a finding of not
guilty) and R.C.M. 1102 (post-trial proceedings in revision may correct apparent
errors which can be rectified “without material prejudice to the accused”). See
R.C.M. 907(a) discussion (unless the decision to dismiss is reconsidered and
reversed, dismissal terminates the proceedings).


                                           6
MCCLAIN – 20051215 and 20051331


martial over them, and dismissal of charges . . . extinguishes the charges
themselves.” R.C.M. 604(a) analysis at A21-32. “Dismissal of charges disposes of
those charges; it does not necessarily bar subsequent disposition of the underlying
offenses . . . .” Id. Indeed, R.C.M. 707 internally recognizes the distinction. It
outlines those events which affect time periods for speedy trial purposes, to include
“[d]ismissal or mistrial,” and provides “[i]f charges are dismissed, or if a mistrial is
granted, a new 120-day time period under this rule shall begin on the date of the
dismissal or mistrial . . . .” R.C.M. 707(b)(3)(A).

       The distinction between mistrial and dismissal is more than mere semantics.
After mistrial, affected charges remain “alive” for purposes of further proceedings;
after dismissal, affected charges no longer exist. After dismissal, any further
proceedings can only be initiated as to the conduct underlying the affected charges
by starting anew, with preferral of different charges. While, in general, there are
different standards for further trial proceedings, 10 13dismissal is the only remedy for
violation of the 120-day rule: “A failure to comply with this rule will result in
dismissal of the affected charges . . . .” R.C.M. 707(d) (emphasis added). Mistrial
is not an authorized remedy under R.C.M. 707 for a violation of the 120-day rule. In
this case, therefore, dismissal, either with or without prejudice, was required and the
military judge’s declaration of a mistrial constituted a clear abuse of discretion. 11
      14




10
  Compare R.C.M. 604(b) (withdrawn charges may be referred to another court-
martial unless withdrawal was improper; if withdrawn after introduction of evidence
on guilt, charges may be referred to another court-martial “only if the withdrawal
was necessitated by urgent and unforeseen military necessity”), with R.C.M. 907
discussion (in general, dismissal “does not ordinarily bar a later court-martial for the
same offense if the grounds for dismissal no longer exist”). “When an accused in a
criminal trial successfully moves for a mistrial, he may ‘invoke the bar of double
jeopardy’ against a second trial only where ‘the conduct giving rise to the successful
motion for a mistrial was intended to provoke the defendant into moving for
mistrial.’” United States v. DiAngelo, 31 M.J. 135, 136 (C.M.A. 1990) (emphasis
omitted) (quoting Oregon v. Kennedy, 456 U.S. 667, 679 (1982)); see also R.C.M.
915(c)(2).
11
   Federal courts have held dismissal is mandatory. As in military practice, a federal
trial judge has discretion to dismiss with or without prejudice. United States v.
Kramer, 827 F.2d 1174, 1176 (8th Cir. 1987) (“Although dismissal is mandatory
when the [FSTA] is violated, the [FSTA] grants the trial judge the discretion to
dismiss the indictment with or without prejudice.”); United States v. Bilsky, 664
F.2d 613, 617 (6th Cir. 1981) (“A finding of a constitutional speedy trial violation
mandates dismissal with prejudice. Under the [FSTA], however, dismissal may be
with or without prejudice.” (citations and footnotes omitted)); United States v.
Lainez-Leiva, 129 F.3d 89 (2d Cir. 1997).


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MCCLAIN – 20051215 and 20051331


                                       Double Jeopardy

       We now consider the impact of the military judge’s rulings which allowed the
government to try appellant over his objection on several original charges in a
second court-martial. The Fifth Amendment to the United States Constitution
provides that no person shall “be subject, for the same offence, to be twice put in
jeopardy of life or limb . . . .” The “double jeopardy clause” protects against
successive prosecutions and multiple punishments for the same offense. United
States v. Ragard, 56 M.J. 852, 855 (Army Ct. Crim. App. 2003) (citing Brown v.
Ohio, 432 U.S. 161, 165 (1977)). The purposes underlying double jeopardy include
“protecting the integrity of a final judgment,” United States v. Scott, 437 U.S. 82, 92
(1978), and assuring the government, “with all its resources and power,” is not
“allowed to make repeated attempts to convict an individual for an alleged offense,
thereby subjecting him to embarrassment, expense and ordeal and compelling him to
live in a continuing state of anxiety and insecurity, as well as enhancing the
possibility that even though innocent he may be found guilty.” Green v. United
States, 355 U.S. 184, 187-88 (1957).

       The double jeopardy clause is applied to military personnel through Article
44(a), UCMJ, which provides: “No person may, without his consent, be tried a
second time for the same offense.” Article 44(b), UCMJ, also provides: “A charge
or specification shall be dismissed upon motion made by the accused before the final
adjournment of the court-martial in that case if . . . [t]he accused has previously
been tried by court-martial . . . for the same offense . . . .” See United States v.
Collins, 41 M.J. 428, 429 (C.A.A.F. 1995). Article 44, UCMJ, does not, however,
offer broader protections than granted by the Constitution in this case. 1215See United
States v. Cook, 12 M.J. 448, 452 (C.M.A. 1982) (the constitutional protection is
“mirrored” in Article 44(a), UCMJ); United States v. Richardson, 21 U.S.C.M.A. 54,
44 C.M.R. 108 (1971); Burtt v. Schick, 23 M.J. 140 (C.M.A. 1986).

       “The Supreme Court and military courts have consistently held that jeopardy
does not attach until an accused is ‘put to trial before the trier of the facts, whether
the trier be a jury or a judge.’” Ragard, 56 M.J. at 855 (quoting Serfass v. United
States, 420 U.S. 377, 390-91 (1975)). “In the case of a jury trial, jeopardy attaches
when a jury is empaneled and sworn. In a nonjury trial, jeopardy attaches when the
court begins to hear evidence.” Serfass, 420 U.S. at 388 (citations and footnote
omitted).

       In appellant’s first court-martial, he was arraigned, entered pleas, and
evidence on the merits was admitted. “[W]here a case is tried to a court without a
jury, jeopardy begins after accused has been indicted and arraigned, has pleaded and
the court has begun to hear evidence.” McCarthy v. Zerbst, 85 F.2d 640, 642 (10th

12
  Significantly, Article 44, UCMJ, incorporates elements of Supreme Court double
jeopardy jurisprudence. In its exception to the definition of the term “trial,” Article
44(b), UCMJ, looks to a finding of guilt.


                                            8
MCCLAIN – 20051215 and 20051331


Cir. 1936), cert. denied, 299 U.S. 610 (1936); see also United States v. Wells, 9
U.S.C.M.A. 509, 26 C.M.R. 289 (1958). Therefore, as the military judge properly
found during the motion hearing in appellant’s second trial, jeopardy had attached.

       Having determined that jeopardy attached, we next address the implication for
further proceedings. Contrary to appellant’s claim, our determination that jeopardy
attaches “begins, rather than ends, the inquiry as to whether the Double Jeopardy
Clause bars retrial.” Serfass, 420 U.S. at 390 (quoting Illinois v. Somerville, 410
U.S. 458, 467 (1973)). In general, “[w]here ‘the trial is terminated without any
submission to either judge or jury as to . . . guilt or innocence’ there has been no
determination of guilt of [sic] innocence and retrial is not barred.” United States v.
Germono, 16 M.J. 987, 988 (A.C.M.R. 1983) (quoting Scott, 437 U.S. at 101).

       In determining whether a ruling amounts to a finding of not guilty, “a
defendant is acquitted only when ‘the ruling of the judge, whatever its label, actually
represents a resolution [in the defendant’s favor], correct or not, of some or all of
the factual elements of the offense charged.’” United States v. Hunt, 24 M.J. 725,
728 (A.C.M.R. 1987) (quoting United States v. Martin Linen Supply Co., 430 U.S.
564, 572 (1977)). Applying this principle to appellant’s case, it is helpful to review
the factual scenarios in two seminal Supreme Court cases: Scott, 437 U.S. 82 and
United States v. Lee, 432 U.S. 23 (1977).

      In Scott, the defendant moved, both before and during trial, for dismissal of
two indictment counts because of preindictment delay. 437 U.S. at 84. After
hearing the evidence, the trial court granted the dismissal and held the affected
charges were barred from reprosecution. The government sought to appeal. The
Court concluded:

      [T]he defendant, by deliberately choosing to seek termination of the
      proceedings against him on a basis unrelated to factual guilt or
      innocence of the offense of which he is accused, suffers no injury
      cognizable under the Double Jeopardy Clause . . . . [T]he Double
      Jeopardy Clause, which guards against Government oppression, does
      not relieve a defendant from the consequences of his voluntary choice
      . . . . [I]n the present case, respondent successfully avoided [actual]
      submission of the first count of the indictment [to the trier of fact] by
      persuading the trial court to dismiss it on a basis which did not depend
      on guilt or innocence. He was thus neither acquitted nor convicted,
      because he himself successfully undertook to persuade the trial court
      not to submit the issue of guilt or innocence to the jury which had been
      empaneled to try him.

Id. at 98-99.




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MCCLAIN – 20051215 and 20051331


        Lee was a bench trial with significant parallels to appellant’s case. 432 U.S.
23. In Lee, the defense moved to dismiss a purportedly defective specification after
the prosecution made its opening statement. The judge denied the motion, continued
with the trial, but indicated that he would research the defense position at the first
opportunity and give the motion further consideration “as appears to be warranted.”
Id. at 26. After presentation of evidence, the judge stated the evidence proved the
defendant’s guilt beyond “any reasonable doubt in the world,” but nevertheless
granted the earlier motion to dismiss based on defects in the charging documents.
Id.

       The defendant was later charged with the previously dismissed offense. At
the subsequent trial, the evidence presented was substantially the same as the
evidence at the first trial and the defendant was convicted. On appeal, the defendant
claimed his second trial was barred by double jeopardy. The Supreme Court
disagreed, again noting that “a trial court’s ruling in favor of the defendant is an
acquittal only if it ‘actually represents a resolution, correct or not, of some or all of
the factual elements of the offense charged.’” Id. at 30 n.8 (quoting Martin Linen
Supply Co., 430 U.S. at 571).

       Equally significant to appellant’s case, the Supreme Court found a trial court
label of “dismissal” or “mistrial” not controlling:

      The critical question is whether the order contemplates an end to all
      prosecution of the defendant for the offense charged. A mistrial ruling
      invariably rests on grounds consistent with reprosecution, while a
      dismissal may or may not do so. . . . In short, the order entered by the
      [trial court] was functionally indistinguishable from a declaration of
      mistrial.

Id. at 30-31 (citation and footnote omitted).

       In a sense, therefore, our analysis has come full circle. The military judge
erred in ordering a mistrial when he was required to direct dismissal, but for
purposes of the second trial on the original charges, the distinction between mistrial
and dismissal “has no significance in the circumstances here presented.” Id. at 31.
Ultimately, it is the substance of a trial court ruling and not its form that determines
its significance in the context of double jeopardy. United States v. Jorn, 400 U.S.
470, 478 n.7 (1971) (recognizing that “the trial judge’s characterization of his own
action cannot control the classification of the action”).

       In this case, the military judge granted the defense motion to dismiss on
grounds unrelated to guilt or innocence. Applying Scott and Lee, we conclude
appellant’s second court-martial on the original offenses was not barred by Fifth
Amendment double jeopardy protection. Since there was no constitutional double
jeopardy bar, there was also no statutory bar. We find this consistent with numerous
military cases holding dismissal of charges does not amount to a finding of not



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MCCLAIN – 20051215 and 20051331


guilty under Article 44, UCMJ. United States v. Ware, 1 M.J. 282 (C.M.A. 1976)
(reconsideration of a dismissal of charges for denial of a speedy trial); Mangsen v.
Synder, 1 M.J. 287 (C.M.A. 1976) (dismissal for lack of jurisdiction does not bar
reprosecution); Priest v. Koch, 19 U.S.C.M.A. 293, 41 C.M.R. 293 (1970) (dismissal
for failure to state an offense did not bar reprosecution). 13 16

                                      CONCLUSION

      Upon consideration of the entire record in both of appellant’s cases, including
those matters personally raised by appellant pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982), the findings of guilty and sentences in both cases are
affirmed.

Senior Judge HOLDEN and Judge HOFFMAN concur.

                                        FORTHE
                                       FOR THE COURT:
                                               COURT:




                                        MALCOLM H. SQUIRES, JR.
                                       MALCOLM
                                        Clerk of CourtH. SQUIRES, JR.
                                       Clerk of Court




13
   Not only is our conclusion consistent with Supreme Court precedent, any other
interpretation would create a clearly unintended gap in the Rules for Courts-Martial.
The Supreme Court directs us to analyze whether proceedings “actually represent a
resolution, correct or not, of some or all of the factual elements of the offense
charged.” Martin Linen Supply Co., 430 U.S. at 571. If we were to ignore this
directive and adopt appellant’s position, an accused could simply wait until after
jeopardy attaches to file a motion to dismiss for speedy trial and essentially
foreclose the option of dismissal without prejudice, provided in R.C.M. 707(d)(1).
We do not read the Rules for Courts-Martial to deprive the public “of its valued
right to ‘one complete opportunity to convict those who have violated its laws.’”
Scott, 437 U.S. at 100 (quoting Arizona v. Washington, 434 U.S. 497, 509 (1978)).


                                         11
