              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                                Before
           J.R. MCFARLANE, K.M. MCDONALD, M.K. JAMISON
                       Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                     ZACHARY W. SPRATLING
          GAS TURBINE SYSTEM TECHNICIAN (MECHANICAL)
                   THIRD CLASS (E-4), U.S. NAVY

                           NMCCA 201400060
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 18 October 2013.
Military Judge: CAPT Robert Blazewick, JAGC, USN.
Convening Authority: Commander, Navy Region Southeast,
Jacksonville, FL.
Staff Judge Advocate's Recommendation: CDR N.O. Evans,
JAGC, USN.
For Appellant: LT Jessica Fickey, JAGC, USN.
For Appellee: Maj Paul Ervasti, USMC; Maj David N. Roberts,
USMC.

                              31 July 2014

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                     OPINION OF THE COURT
     ---------------------------------------------------

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

     A general court-martial composed of officer and enlisted
members convicted the appellant, contrary to his pleas, of
committing an indecent act and receiving child pornography in
violation of Articles 120 and 134, Uniform Code of Military
Justice, 10 U.S.C. §§ 920 and 934. The members sentenced the
appellant to confinement for a period of 60 days and a bad-
conduct discharge. The convening authority (CA) approved the
sentence as adjudged.

      In his sole assignment of error, the appellant argues that
the military judge erred in not dismissing Charge I (receipt of
child pornography) based on a violation of the appellant’s
speedy trial rights under RULE FOR COURT-MARTIAL 707, MANUAL FOR
COURTS-MARTIAL, UNITED STATES (2008 ed.). 1 After consideration of
the pleadings of the parties and the record of trial, we
conclude that the findings and sentence are correct in law and
fact and that no error materially prejudicial to the substantial
rights of the appellant was committed. Arts. 59(a) and 66(c),
UCMJ.

                                 Background

     On 14 January 2013, the Government preferred an initial set
of charges against the appellant. Appellate Exhibit XXIV. This
included the following charges: indecent act under Article 120,
UCMJ, for sending KS, a minor, a photograph of a penis; receipt
of five images of child pornography (nude images of KS) under
Article 134, UCMJ; and, indecent act under Article 134, UCMJ,
for sending KS, via interstate commerce, a digital image of a
penis.

     Following a pretrial investigation under Article 32, UCMJ,
the Government preferred substantially the same charges on 18
March 2013 and the CA referred these charges to a general court-
martial on 25 March 2013. 2 The appellant was arraigned on this
set of charges on 22 April 2013.

     As part of the pretrial litigation during his initial
court-martial, the appellant moved to dismiss Charge I (Article
120, UCMJ) and its sole specification based on the claim that it

1
  This assignment of error is raised pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982).
2
  Specification 1 of Charge II preferred on 18 March 2013 alleged receipt of
six images of child pornography while the specification preferred on 14
January 2013 alleged receipt of five images of child pornography. AE XXIV.
Other than a change to the date in specification 1 of Charge II and an
addition of the number “4” to identify a particular digital image in that
specification, the charges preferred on 18 March 2013 were substantially the
same as the charges preferred on 14 January 2013; however, only the charges
preferred on 18 March 2013 were actually referred by the CA and subsequently
dismissed. Charge Sheet of 18 Mar 2013. For purposes of this assignment of
error, the appellant argues that the speedy trial clock started on 14 January
2013. Because the Government did not contest this date, we will accept
without deciding the appellant’s argument of a 14 January 2013 start date.
                                      2
was unreasonably multiplied with Specification 2 of Charge II
(Article 134, UCMJ). AE II at 101. The military judge agreed
and without consulting the Government, directed the dismissal,
without prejudice, of Charge I and its sole specification as
unreasonably multiplied with Specification 2 of Charge II. Id.
at 280.

     On 30 June 2013, the Government preferred two new charges
against the appellant. Charge I (Article 134, UCMJ) alleged
that the appellant received four images of child pornography and
Charge II (Article 120, UCMJ) alleged an indecent act by the
appellant for sending a digital image of a penis to KS. Based
on the Article 34, UCMJ, advice of the staff judge advocate, the
CA referred these charges on 1 July 2013 to the same general
court-martial (GCMCO 03-13) as those charges preferred on 18
March 2013. 3

     On 2 July 2013, the Government served the appellant with
the new set of charges. On 3 July 2013, the appellant moved
for a continuance until 19 July 2013. Over Government
opposition, the military judge granted the appellant’s request
for a continuance. On 29 July 2013, the appellant was arraigned
on the new set of charges.

     At his arraignment, the appellant moved to dismiss the new
set of charges based on an improper referral. 4 AE IV. The
military judge denied the motion. Record at 81; AE VI. The
appellant submitted a new proposed Case Management Order (CMO)
that set new trial milestones. The military judge approved the
CMO and, based on the request by the appellant, set the case for
trial on 15 October 2013. AE I; AE LXX at 3.

     On 6 September 2013, the appellant, for the first time,
moved to dismiss the charges based on a violation of his speedy
trial rights under R.C.M. 707 and the 6th Amendment. AE XXIV.
On 2 October 2013, the military judge denied the motion. AE
XXVI. The appellant moved for reconsideration based on the fact
that trial defense counsel had been denied the opportunity to
present oral argument. The military judge reconsidered, heard

3
  On 9 July 2013, at the direction of the CA, the trial counsel withdrew and
dismissed Charge II and its two specifications (preferred on 18 March 2013
and referred on 25 March 2013). AE XXIV at 10-12.
4
  The appellant’s motion to dismiss for improper referral alleged a subterfuge
by the Government that essentially argued that the CA’s decision to re-refer
charges had the effect of overturning the military judge’s prior ruling that
had dismissed the Article 120 Charge. AE IV.
                                      3
oral argument on the motion, and essentially ratified his
earlier 2 October 2013 ruling. AE LXX.

                            Speedy Trial Claim

     On appeal, the appellant argues that the military judge
erred in not dismissing the charge alleging receipt of child
pornography, based on violation of his speedy trial rights under
R.C.M. 707. 5 Appellant’s Brief at 8. Specifically, the
appellant argues that because the dismissal of the child
pornography charge was a “subterfuge to avoid exceeding the 120
day time period” under R.C.M. 707, the speedy trial clock was
not reset by the 30 June 2013 preferral. Appellant’s Brief at
8. Instead, the appellant argues that he was not brought to
trial on the child pornography charge until day 185 -- violating
his right to a speedy trial under R.C.M. 707. We disagree with
the appellant’s underlying premise and his speedy trial
calculation.

     We review de novo a military judge's conclusion of whether
an accused received a speedy trial under R.C.M. 707. United
States v. Cooper, 58 M.J. 54, 57-58 (C.A.A.F. 2003); United
States v. Doty, 51 M.J. 464, 465 (C.A.A.F. 1999). “The military
judge's findings of fact are given ‘substantial deference and
will be reversed only for clear error.’” Doty, 51 M.J. at 465
(quoting United States v. Edmond, 41 M.J. 419, 420 (C.A.A.F
1995)). Having examined the record of trial, including the
extensively litigated pretrial motion, we find that the military
judge's findings of fact are clearly supported by the record.
AE LXX at 2-3. Accordingly, we adopt them as our own.

     The appellant’s argument is premised on whether the
dismissal of the child pornography charge was a subterfuge to
avoid violating R.C.M. 707. In this case, the military judge
specifically ruled that the trial counsel’s dismissal on 9 July
2013 of the child pornography charge at the direction of the CA,
was neither improper nor a subterfuge. AE LXX at 4-6. We
agree.



5
  The appellant does not argue a violation of his speedy trial rights under
either the Fifth or Sixth Amendment. Additionally, the appellant concedes
that because the indecent act charge under Article 120, UCMJ, was dismissed
by the military judge, his speedy trial rights were not violated as to that
charge. Appellant’s Brief of 7 Apr 2014 at 8 n.8. Thus, we consider only
the speedy trial implications of Charge I (receipt of child pornography).


                                      4
     Absent a subterfuge, the speedy-trial clock is reset once
charges are dismissed. United States v. Anderson, 50 M.J. 447,
448 (C.A.A.F. 1999); R.C.M. 707(b)(3)(A). If charges are re-
preferred, a new 120-day period begins on the date of re-
preferral. United States v. Tippit, 65 M.J. 69, 73 (C.A.A.F.
2007); R.C.M. 707(b)(3)(A).

     In this case, the appellant was not subject to any type of
pretrial restraint. The child pornography charge (Charge I) was
preferred on 30 June 2013 and the appellant was brought to trial
on that charge on 29 July 2013. The military judge excluded the
dates from 8 until 19 July 2013 based on a defense-requested
continuance. Thus, for accountability under R.C.M. 707, the
military judge concluded that the appellant was brought to trial
on day 13. R.C.M. 707(c) (stating that defense pretrial delays
approved by the military judge shall be excluded for purposes of
calculating the speedy trial requirements under R.C.M. 707). We
agree. Accordingly, the appellant was clearly brought to trial
on the child pornography charge within the 120-day requirement
outlined in R.C.M. 707.

                          Forum Request

     Although not raised by the appellant as an assignment of
error, we note that the military judge did not obtain on the
record the appellant’s personal request for trial by enlisted
members. The appellant submitted a request signed by his trial
defense counsel; however, it was not personally signed by the
appellant. AE LXXV. While this failure represented a violation
of Article 25(c)(1), UCMJ, under the circumstances of this case,
there was substantial compliance with Article 25 and the error
did not prejudice the substantial rights of the appellant.
United States v. Townes, 52 M.J. 275, 276-77 (C.A.A.F. 2000).




                                5
                                 Conclusion

     The findings and the sentence as approved by the CA are
affirmed. 6

                                       For the Court



                                       R.H. TROIDL
                                       Clerk of Court




6
  Although not raised by the appellant, there remains a question of whether
the military judge properly calculated the maximum punishment of confinement
for twenty-five years. Record at 834. The appellant’s offenses occurred
between September and October of 2010. At that time the maximum punishment
for receipt of child pornography was confinement for twenty years. Title 18
U.S.C. § 2252A(a)(2). However, on 13 December 2011, the President issued
Executive Order (EO) 13593, which amended the Manual to include listing child
pornography as an offense under Article 134, UCMJ. The EO set the maximum
punishment for receipt of child pornography at ten years. Rule for Court-
Martial 1003 is silent on the question of whether a “listed” offense or
“closely related” offense must be in Part IV of the Manual at the time the
offenses are committed and at the time of trial to apply for purposes of
sentence calculation. If R.C.M. 1003 requires both, the military judge
correctly advised the members using the analogous child pornography offense
under Title 18 U.S.C. § 1152A(a)(2). If, however, R.C.M. 1003 only requires
that the “listed” or “closely related” offense be in the Manual at the time
of trial, the military judge should have advised the members that the
appellant was facing confinement for fifteen years (ten years for receipt of
child pornography and five years for committing an indecent act). We need
not answer this question because even assuming that the military erred in his
maximum punishment calculation, we find that based on the sentence adjudged,
the maximum sentence calculation was of no overriding concern or influence on
the members sufficient to demonstrate a colorable claim of prejudice. Art.
59(a), UCMJ.
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