

   
   
   
   U.S. v. Doty



IN THE CASE OF
United States, Appellee
v.
Timothy R. Doty
Hospital Corpsman Third Class
U.S. Navy, Appellant
 
No. 98-0949
Crim. App. No. 97-0745
 
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
Argued April 7, 1999
Decided September 24, 1999
 

COX, C.J., delivered the opinion of the
Court, in which SULLIVAN, GIERKE, and EFFRON, JJ., joined. CRAWFORD, J.,
filed an opinion concurring in the result.
 


Counsel
For Appellant: Lieutenant Mari-Rae Sopper,
JAGC, USNR (argued).
For Appellee: Commander Eugene E. Irvin,
JAGC, USN (argued); Colonel Kevin M. Sandkuhler, USMC, and Major
Clark R. Fleming, USMC (on brief).
Military Judges: Kenneth A. Krantz and Charles
R. Hunt
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.

Chief Judge COX delivered the opinion of the
Court.
Appellant was convicted at a special court-martial
of two specifications of wrongfully using marijuana and one specification
of distributing marijuana, in violation of Article 112a, Uniform Code of
Military Justice, 10 USC § 912a. The court-martial, comprised of officer
members, sentenced appellant to confinement for 3 months, forfeiture of
$583.00 pay per month for 3 months, reduction to E-1, and a bad-conduct
discharge. The convening authority approved the adjudged sentence.
We granted review of one issue in which appellant
asks us to hold that his arraignment was a "sham" arraignment, used only
to stop the speedy-trial clock in his case, and thus was insufficient because
he was not brought to actual trial until 7 days later. See 51 MJ
131 (1998).
Appellant was arraigned on December 4, 1996,
which was day 119 on the speedy-trial clock. Appellant was tried on the
charges pending before this court-martial on December 11, 1996, 7 days
after his arraignment. There was no pretrial confinement in appellants
case.
Immediately following appellants arraignment,
the defense raised an oral motion, later followed by a written motion to
dismiss, alleging that the Government was essentially conducting a "sham"
arraignment that violated appellants right to a speedy trial. The military
judge denied the motion holding that the military speedy-trial rule was
"reasonabl[e]," and that it was "complied with in this case."
The conclusion whether an accused received
a speedy trial is a legal question that is reviewed de novo.
See United States v. Thompson, 46 MJ 472, 475 (1997). The
military judges findings of fact are given "substantial deference and
will be reversed only for clear error." See United States v.
Edmond, 41 MJ 419, 420 (1995), quoting United States v. Taylor,
487 U.S. 326, 337, 108 S.Ct. 2413, 2419-20 (1988). Although we are not
required to defer to the military judges or the lower courts legal conclusions,
after due consideration we have no occasion to disagree with their analyses.
The military judge ruled that arraignment of
appellant was proper within the plain language of the rule itself, RCM
707, Manual for Courts-Martial, United States (1998 edition), and also
through interpretation of the rule in light of the cases leading to its
enactment. See, e.g., Thomas v. Edington, 26 MJ 95
(CMA 1988); United States v. Carlisle, 25 MJ 426 (CMA 1988). He
went on further to state that the Presidents decision to clarify the speedy-trial
rules in a way that allows for a lapse between arraignment and trial was
not constitutionally barred, as long as the accused is not restrained.
The Court of Criminal Appeals further noted
that the pretrial processing of appellants case appears "diligent," and
that most of the delay occurred at the Article 32, UCMJ, 10 USC §
832, stage of the proceedings. That court could "find no evidence of intentional
or negligent actions" that would cause it to avoid applying the plain language
of RCM 707. Unpub. op. at 2-3 (May 27, 1998). We agree. RCM 707 clearly
states:



(a) In general. The accused shall
be brought to trial within 120 days after the earlier of:
    (1) Preferral of charges;

* * *
    (2) The imposition of restraint
under R.C.M. 304(a)(2)-(4); or
    (3) Entry on active duty
under R.C.M. 204.
(b) Accountability.
    (1) In general. .
. . The accused is brought to trial within the meaning of this rule at
the time of arraignment under R.C.M. 904.



The Government thus has 120 days from the date
of preferral to bring an accused to trial. In order for an accused to be
brought to trial, he must be "called upon to plead," the process commonly
known as arraignment. RCM 904, Discussion; see also United
States v. Stokes, 39 MJ 771 (ACMR 1994), pet. denied,
41 MJ 100 (CMA 1994).
All of these events occurred in this case within
the statutorily imposed period of time, 120 days. Thus, the arraignment
on day 119 occurred in the "nick of time" to stop the speedy-trial clock.
Appellants arraignment was properly conducted and was not a "sham."*/
We are not at liberty, and
do not desire, to unilaterally modify clearly written Presidential rules
that do not conflict with the Congressionally passed Code or the Constitution.
Cf. United States v. Davis, 47 MJ 484, 486 (1998).
Additionally, there is no reason to
question appellants arraignment based on the fact that the Government
was unprepared to present its case on the merits immediately following
arraignment. In fact, arraignment serves to protect an accuseds rights.
After arraignment, the power of the military judge to process the case
increases, and the power of the convening authority to affect the case
decreases. See RCM 601(e)(2)(no referral of additional charges without
accuseds consent); RCM 603(d)(no major changes to charges without accuseds
consent); RCM 604(b) (power to withdraw charges limited); RCM 804(b)(1)
(trial in absentia permitted). Moreover, after being arraigned, appellant
is still free to make a motion to the military judge demanding speedy trial.
See RCM 707(c)(2); RCM 905(b). Thus, appellants argument here is
unpersuasive.
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
FOOTNOTE:
*/
The primary definition of "sham" in the dictionary is "a trick that deludes."
Websters Tenth Collegiate Dictionary 1076 (1998). While theoretically
such a "trick" could be possibly staged at an arraignment, such as the
case where the Government never intends to go forward on charges, this
case would be extreme. Moreover, such an instance would violate the ethical
rules governing lawyer conduct. See Rule 3.3, ABA Model Rules
of Professional Conduct (1998)(candor toward the tribunal).
 
 
CRAWFORD, Judge (concurring in the
result):
Military accused enjoy the right to
a speedy trial as guaranteed by the Sixth Amendment, the Due Process Clause
of the Fifth Amendment, and by statute -- Article 10, Uniform Code of Military
Justice, 10 USC § 810. They also enjoy a right to a speedy trial as
set forth in RCM 707, which is simple for the bench and bar to follow:
When arraignment falls within the 120-day period provided by RCM 707, there
is no speedy-trial violation.
As the majority states, "We are not
at liberty, and do not desire, to unilaterally modify clearly written Presidential
rules that do not conflict with the Congressionally passed Code or the
Constitution." ___ MJ at (5). However, this language points out
the opinion's self-contradictory nature which suggests the Court's willingness
to craft exceptions to this "clearly written" rule on a case-by-case basis.
While the Government was not ready to proceed in the case at the time of
arraignment, as the court below indicated, the Government was diligent
in processing the case, unpub. op. at 2, and that court found "no evidence
of intentional or negligent actions by the Government which compel us to
act." Id. at 3. I disassociate myself from the dicta in this case
setting forth new language which contradicts RCM 707 as presently drafted.
My view does not preclude the President from drafting a "sham" rule. However,
at this date, he has not.
As to the hypothetical set forth by
the majority, that is, arraignment when the Government never intends to
go forward on the charges, military defendants would be protected from
such an action by the sources of rights set forth above.

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