MISCELLANEOUS MATTERS: Speedy Trial: Rule for Courts-Martial 707

2015 (September Term)

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). 


United States v. Tippit, 65 M.J. 69 (the regulatory speedy trial standard set forth in RCM 707 requires that an accused be brought to trial within 120 days of preferral of charges, imposition of restraint, or entry onto active duty, whichever is earliest; an accused is brought to trial within the meaning of the Rule at arraignment; if charges are dismissed, the clock stops and a new 120-day period begins upon re-preferral of charges). 

(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).


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). 


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).


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).

(there was 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; arraignment serves to protect an accused’s rights because judicial authority over an accused’s case is enhanced while a convening authority’s ability to affect the case decreases, and the accused remains free to make a motion for a speedy trial).

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