2008 (September Term)
United States v. Ashby, 68 M.J. 108 (RCM 306(b) provides that allegations of offenses should be disposed of at the lowest appropriate level of disposition; however, under RCM 306 and RCM 407, a convening authority exercising general court-martial jurisdiction has wide discretion to choose among a variety of options in disposing of a charge, including referring a charge to a general court-martial).
(convening authority’s decision to refer obstruction of justice charges to a general court-martial, rather than a lesser forum, after appellant was acquitted of the original charges, was not an abuse of his discretion, where the obstruction charges were initially referred before appellant was acquitted on the original charges, appellant was a commissioned officer, and the charges involved obstruction of justice relating to an exhaustive investigation into the deaths of 20 people and extensive damage to military property).
United States v. Underwood, 50 MJ 271 (withdrawal of charges, de facto dismissal, preferral anew, a new Article 32 investigation, and referral to another court-martial did not clearly thwart military judge’s ruling denying government motion for a continuance where: (1) new trial date was four months after that requested in government’s motion for continuance; (2) reinvestigation and re-referral were not matters addressed by the military judge’s ruling denying the continuance; and (3) military judge stated that his ruling did not preclude the new preferral and burdensome procedural course of action selected by the convening authority to bring the charges to trial again).
(withdrawal of charges, de facto dismissal, preferral anew, a new Article 32 investigation, and referral to another court-martial after military judge’s ruling denying government motion for a continuance did not constitute illegal interference with the exercise of the judicial function because the convening authority’s actions did not violate any procedural rules of the Manual for Courts-Martial and thus did not constitute “illegal” interference with the judicial function).
(withdrawal and re-referral of charges was proper under RCM 604(b) when done to further the legitimate command objective of accommodating a victim’s schedule and avoid the issuance of a subpoena).
(appellant was not substantially prejudiced by withdrawal and re-referral of charges where: (1) re-referral was to the same level of court-martial; (2) trial was before the same military judge as first trial; (3) appellant lost no benefits from a favorable trial ruling as denial of a continuance created no legally cognizable right to a trial without a prosecution witness; (4) appellant was not in pretrial confinement; and (5) appellant made no pretrial motion at second court-martial alleging prejudicial trial delay).
United States v. Haagenson, 52 MJ 34 (convening authority or superior competent authority may withdraw charges from a court-martial at any time before findings are announced, and such charges may be re-referred to another court-martial unless the withdrawal was for in improper reason; RCM 604(a), (b), and Discussion thereto).