2021 (October Term)
United States v. Guyton, 82 M.J. 146 (under RCM 707, an accused must be brought to trial within 120 days after preferral of charges; for purposes of RCM 707, an accused is brought to trial at the time of arraignment; ordinarily, when an accused is not under pretrial restraint and charges are dismissed, a new 120-day time period begins on the date of repreferral; however, if charges are merely withdrawn and not subsequently dismissed, the RCM 707 speedy-trial clock continues to run).
(applying the speedy trial provisions of RCM 707 does not merely consist of calculating the passage of calendar days; the rule explicitly states that certain days shall not count for the purpose of computing time; in fact, RCM 707(c)(1) states that prior to referral, all pretrial delays approved by a military judge or the convening authority shall be excluded from the RMC 707 120-day clock; and after referral, only the military judge has the authority to approve pretrial days that are excluded from the 120-day clock; the RCM does not preclude after-the-fact approval of a delay by the military judge).
(although the discussion to RCM 707 states that the decision to grant or deny a reasonable delay is a matter within the sole discretion of a military judge based on the facts and circumstances then and there existing, an appellate court requires good cause for the delay and also requires that the length of time requested be reasonable based on the facts and circumstances of each case).
(despite the fact that 192 days elapsed in this case from the time of preferral to the time of arraignment, the government did not violate RCM 707’s speedy trial provision because the military judge did not abuse his discretion when he decided that 59 days attributable to judicial delay were excludable for speedy trial purposes and, upon accounting for those excludable delays, when he concluded that the government did not exceed the 120-day limit imposed by RCM 707; specifically, legitimate reasons existed for the delay to include docket availability, the availability of all parties, and judicial economy in combining arraignment and motions in a single hearing; under all the circumstances of the case, there was good cause for the military judge’s decision and the delay was reasonable).
2017 (October Term)
United States v. Hendrix, 77 M.J. 454 (under the relevant portion of RCM 707, an accused must be brought to trial within 120 days of preferral of charges; if charges are dismissed and then repreferred, a new 120-day period begins from the date of repreferral; failure to comply with RCM 707 will result in dismissal of any affected charges; the trial court decides whether dismissal will be with or without prejudice).
(to determine whether an appellant’s RCM 707 rights were violated by a convening authority’s dismissal and repreferral of charges, the following legal standard is applied: absent a situation where a convening authority’s express dismissal is either a subterfuge to vitiate an accused’s speedy trial rights, or for some other improper reason, a clear intent to dismiss will be given effect; in other words, once charges are dismissed, absent a subterfuge or a dismissal for an improper reason, the speedy-trial clock is restarted; and a proper reason (in the context of a discussion of RCM 604 which governs withdrawal of charges from court-martial) is any legitimate command reason which does not unfairly prejudice an accused; in assessing the presence or lack of subterfuge, a court looks to the ordinary meaning of the term, specifically a dictionary definition of subterfuge as deception by artifice or stratagem in order to conceal, escape, or evade).
2015 (September Term)
United States v. Cooley, 75 M.J. 247 (under RCM 707, the clear speedy trial trigger for offenses for which an accused is not confined is the date of preferral, and the clear trigger for offenses for which an accused is confined is the date of confinement, although the latter is also subject to the greater protection of Article 10, UCMJ).
(prior to the promulgation of RCM 707 in 1984, the “substantial information” rule provided that in the context of multiple charges arising during an accused’s confinement, government accountability for the speedy trial clock began to run when the government had in its possession substantial information on which to base the preference of charges; the judge-made substantial information rule now yields to RCM 707 and is overruled).
(RCM 707 does not void the additional protections of Article 10, UCMJ, when an accused is in pretrial confinement; the fact that a prosecution meets the 120-day rule of RCM 707 does not directly or indirectly demonstrate that the government moved to trial with reasonable diligence as required by Article 10).
(RCM 707 does not void the additional protections of Article 10, UCMJ, when an accused is in pretrial confinement; the fact that a prosecution meets the 120-day rule of RCM 707 does not directly or indirectly demonstrate that the government moved to trial with reasonable diligence as required by Article 10).
(in theory, the opportunity to dismiss charges without prejudice for violating RCM 707’s speedy trial clock offers an opportunity for endless delay; however, Article 10, UCMJ, is one protection to ensure that does not happen).
United States v. Wilder, 75 M.J. 135 (when assessing a speedy trial violation alleged under RCM 707, the speedy trial clock commences only when one of the events listed in RCM 707(a) — preferral of charges, imposition of restraint, or entry of a reservist on active duty for purposes of court-martial — takes place).
(arraignment stops the speedy trial clock for purposes of RCM 707).
(RCM 707(b)(2) provides that when charges are preferred at different times, speedy trial accountability for each charge shall be determined from the appropriate date under RCM 707(a) for that charge; if an appellant is arraigned within 120 days after the earlier of, inter alia, the preferral of, or restraint based upon, a particular charge, then RCM 707 is not violated).
(the government might move with all reasonable diligence for purposes of Article 10, UCMJ, but nonetheless violate the bright-line 120-day rule of RCM 707).
(for purposes of a speedy trial violation alleged under RCM 707, the time is calculated by reference to the specific triggers listed in RCM 707(a) and not by reference to some other standard such as the “substantial information” rule originated in United States v. Johnson, 23 CMA 91, 48 CMR 599 (1974)(holding that delay for purposes of Article 10, UCMJ, should be measured from the time the government possessed substantial information relating to the offense); based on the plain language of RCM 707, when analyzing a speedy trial violation under RCM 707, it is the earliest of the actions listed in RCM 707(a) with respect to a particular charge that starts the speedy trial clock for that charge; RCM 707, promulgated in 1984, was a new and different layer of protection against speedy trial violations, and for violations alleged under its rubric, its plain language controls).
(in this case, there was no RCM 707 violation where the trigger dates from which to measure an alleged violation of RCM 707 were the dates of preferral, and less than 120 days passed between preferral and arraignment with respect to the charges in question).
2013 (September Term)
United States v. Leahr, 73 M.J. 364 (under RCM 707, it is incumbent upon the government to arraign the accused within 120 days after the earlier of preferral of charges, the imposition of restraint, or entry on active duty; where charges are dismissed, a new 120-day time period under the rule will begin on the date of dismissal; if charges are merely withdrawn and not subsequently dismissed, however, the RCM 707 speedy-trial clock continues to run).
(in this case, the convening authority’s withdrawal and dismissal of charges, in order to join an additional charge, consonant with the preference for joinder of all known offenses at a single court-martial, constituted dismissal of the charges, resetting the speedy trial clock under RCM 707, rather than withdrawal; although conditions on appellant’s liberty remained in place and an additional charge was ready for preferral five days later, the convening authority’s “withdrawal and dismissal” document expressly stated that the charges were dismissed, and appellant was notified that the original charges were dismissed; thus, the convening authority withdrew the original charges, and took more than one additional affirmative action to dismiss them – the written document and the notice to appellant; taken together, these circumstances demonstrate that the convening authority intended to dismiss the charges after they were withdrawn; absent a situation where a convening authority’s express dismissal is either a subterfuge to vitiate an accused’s speedy trial rights, or for some other improper reason, a clear intent to dismiss will be given effect; moreover, the original Article 134, UCMJ, specifications, which failed to allege the terminal element, were defective under appellate case law; failing to include the terminal element in the specifications in this contested case warranted dismissal because such specifications were defective; accordingly, appellant’s right to a speedy trial under RCM 707 was not violated because appellant’s original charges were dismissed and appellant was brought to trial within the time parameters of RCM 707).
United States v. Danylo, 73 M.J. 183 (RCM 707(a) provides that the accused shall be brought to trial within 120 days of the imposition of restraint).
2007
(under RCM 707(e), an
unconditional plea of guilty which results in a finding of guilty
waives any speedy trial issue as to that offense under the Rule; in
this case, appellant’s unconditional guilty plea waived his speedy
trial rights under RCM 707).
(in this case, although the
SJA recommended that the convening authority “withdraw” the charges and
the convening authority wrote “concur,” this is not a case where the
convening authority had the option of either dismissal or withdrawal;
with respect to the disposition choices in his recommendation, the SJA
provided the convening authority with only one option with respect to
dismissal or withdrawal -- that is, dismissal -- and he used common
language which has the same colloquial meaning as dismissal; the
parties agreed that the charges had not been referred to a
court-martial at the time of the convening authority’s action, and that
the convening authority could not “withdraw” the charges from a
court-martial as a matter of law under RCM 604; although use of the
word “withdrawal” to implement a dismissal of charges is not
recommended, the SJA’s accurate presentation of dismissal as an option
and the convening authority’s decision to concur were sufficient to
dismiss the charges and stop the RCM 707 speedy trial clock).
(once charges are dismissed,
absent a subterfuge, the speedy-trial clock is restarted).
2005
United
States v. Mizgala, 61 M.J. 122 (RCM 707(e) provides that a plea of
guilty
which results in a finding of guilty waives any speedy trial issue as
to that
offense; the language of Article 10 is clearly different from RCM 707
and
Article 10 is not restricted by RCM 707; the protections afforded
confined or
arrested servicemembers under Article 10 are distinct and greater given
the
nature of other speedy trial protections; and RCM 707(e) does not act
as a
limitation on the rights afforded under Article 10).
(Article 10 and RCM 707 are distinct, each providing its own speedy
trial
protection; the fact that a prosecution meets the 120-day rule of RCM
707 does
not directly or indirectly demonstrate that the Government moved to
trial with
reasonable diligence as required by Article 10).
United
States v. Dooley, 61 M.J. 258 (under RCM 707, the military
judge is
directed to apply certain factors in determining a remedy for a speedy
trial
violation, and then decide whether those factors lead to the conclusion
that
the case should be dismissed with or without prejudice; under an abuse
of
discretion standard, mere disagreement with the conclusion of the
military
judge who applied the RCM 707 factors is not enough to overturn his
judgment;
the 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).
(a military judge’s decision
to dismiss a
case with prejudice for an RCM 707 speedy trial violation can be
reversed only
for a clear abuse of discretion; the military judge’s decision should
be
affirmed unless his factual findings are clearly erroneous or his
decision in
applying the RCM 707 speedy trial factors was influenced by an
incorrect view
of the law).
United
States v. Lazauskas, 62 M.J. 39 (RCM 707 provides that the accused
shall be
brought to trial within 120 days after the imposition of restraint}.
(prior to referral of charges,
all
requests for pretrial delay will be submitted to the convening
authority or to
a military judge; after referral, such requests for pretrial delay will
be
submitted to the military judge for resolution).
(all pretrial delays approved
by the
convening authority are excludable so long as approving them was not an
abuse
of the convening authority’s discretion; it does not matter which party
is
responsible).
(prior to referral, the
convening authority
may delegate the authority to grant continuances to an Article 32
investigating
officer; where, as here, the convening authority has delegated to an
investigating officer the authority to grant any reasonably requested
delays of
the Article 32 investigation, then any delays approved by the Article
32
investigating officer also are excludable; thus, when an investigating
officer
has been delegated authority to grant delays, the period covered by the
delay
is excludable from the 120-day period under RCM 707).
(if the issue of speedy trial
under RCM
707 is raised before the military judge at trial, the issue is not
which party
is responsible for the delay but whether the decision of the officer
granting
the delay was an abuse of discretion; the resolution under RCM 707 does
not
preclude a party from asserting responsibility for delay under Article
10,
UCMJ, or the Constitution; it simply means that in the absence of an
abuse of
discretion by the officer granting the delay, there is no violation of
RCM 707).
(the military judge did not
abuse his
discretion under RCM 707 in excluding from the 120-day speedy trial
period a
delay during the Article 32 investigation to obtain the personal
testimony of
witnesses who were on leave because the defense objected to taking
their
testimony over the telephone).
(the
military judge did not abuse his discretion under RCM 707 in excluding
from the
120-day speedy trial period a five-day period from the service of the
referred
charges until the expiration of the Article 35 waiting period,
notwithstanding
the accused’s contention that the Article 35 waiting period would have
prohibited the government from bringing him to trial during that time,
where
the accused did not raise any Article 35 objection at the trial level;
the five-day
Article 35 period was neither requested nor necessary in this case to
protect
the accused).
2000
United
States v. Becker, 53 MJ 229 (the absence of
language in
RCM 707 specifically tailored to sentence-only rehearings is not viewed
as a
conscious decision to retain a 90-day speedy trial violation
presumption;
rather, the mechanics of RCM 707 can be applied to sentence-only
rehearings in
a manner that will protect a servicemember’s rights under Articles 10
and 33
without applying a 90-day presumption).
(absent a modification of RCM 707, the procedures established under
RCM 707
will be applied to sentence-only proceedings in accordance with the
following
principles: (1) the 120-day clock will start on the date that the
responsible convening authority receives the record of trial and the
opinion
authorizing or directing a rehearing; (2) the clock will stop when the
accused
is brought to the bar for sentencing, typically at the first session
under
Article 39(a), UCMJ; (3) if the government has sufficient reason to
justify a
delay, all such requests for delay, together with supporting reasons,
will be
submitted to the convening authority prior to referral or, after
referral, to
the military judge for resolution; and, (4) the remedy should be
tailored to
the harm suffered).
(the application of speedy trial principles to sentence-only
rehearings
should include cases that do not involve confinement, absent an express
provision in RCM 707 excluding such cases).
(the application of nonconstitutional speedy trial principles to
sentence-only rehearings should be applied in a prospective fashion).
(even applying nonconstitutional speedy trial principles to
appellant’s case,
appellant was entitled to no relief, despite the fact that rehearing
started
316 days after the record had been transmitted to the convening
authority,
where appellant made no showing that the delay impacted on the
rehearing and
dismissal of the charges would be disproportionate to the harm
suffered).
1999
United
States v. Anderson, 50 MJ 447 (where charges are
dismissed,
absent a subterfuge, the speedy trial clock is restarted and a new
120-day time
period under RCM 707(b)(3)(A) begins on the day of dismissal; even
where there
is continued restraint, a dismissal of the charges stops the 120-day
clock and
a new 120-day clock is started on the day of dismissal).
United
States v. Doty, 51 MJ 464 (in order for an accused to be
brought
to trial within the meaning of RCM 707, he must be called upon to
plead, the
process known as arraignment; even where conducted “in the nick of
time” on the
119th day, the arraignment was proper and not a sham).
(rule stopping the speedy trial clock of RCM 707 when an accused is
arraigned will not be unilaterally modified by appellate decision where
that
rule is a clearly written Presidential rule that does not conflict with
the
UCMJ or the Constitution).