IN THE
CASE OF
UNITED STATES, Appellee
v.
Patrick A. MIZGALA, Airman First Class
No. 04-0382
Crim. App. No. 34822
Argued
Decided
ERDMANN, J., delivered the opinion of the court, in which GIERKE, C.J., and EFFRON and BAKER, JJ., joined. CRAWFORD, J., filed a separate opinion concurring in the result and dissenting in part.
Counsel
For Appellant: Major James M. Winner (argued); Colonel Beverly B. Knott, Lieutenant Colonel Carlos L. McDade, Major Terry L. McElyea, and Major Andrew S. Williams (on brief).
For Appellee: Major
John C. Johnson (argued); Colonel LeEllen Coacher and Lieutenant
Colonel Robert V. Combs (on brief); Lieutenant Colonel Gary F.
Spencer.
Military Judge: Gregory E. Pavlik
This opinion is subject to
revision before final publication.
Judge ERDMANN delivered the opinion of the court.
Airman
First Class Patrick A. Mizgala entered guilty pleas to numerous offenses1
and was sentenced to a bad-conduct discharge, confinement for nine
months, forfeiture
of all pay and allowances, and reduction to the grade of E-1. The convening authority reduced the amount of
forfeitures but approved the balance of the sentence.
The United States Air Force Court of Criminal
Appeals affirmed the findings and sentence.
Article 10, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 810 (2000), assures the right of a speedy trial to military members by providing that “[w]hen any person subject to this chapter is placed in arrest or confinement prior to trial, immediate steps shall be taken to inform him of the specific wrong of which he is accused and to try him or to dismiss the charges and release him.”
Mizgala was initially held in pretrial confinement for 117 days. His timely motion to dismiss for lack of a speedy trial under Article 10 was denied by the military judge and Mizgala entered unconditional guilty pleas to all of the charges. We granted review to determine whether Mizgala’s unconditional guilty pleas waived appellate review of the speedy trial motion and, if not, whether Mizgala was denied his Article 10 right to a speedy trial.2 We find that Mizgala’s unconditional guilty plea did not waive his right to appellate review of his litigated speedy trial motion, but find that his Article 10 right to speedy trial was not violated.
WAIVER
The Air Force Court of Criminal Appeals found that Mizgala waived consideration of his Article 10 claim by his unconditional guilty plea. In addition, that court held that even if the speedy trial issue had not been waived, there was no violation of Mizgala’s Article 10 rights. After noting that the military judge incorrectly used a “gross negligence” standard, the court concluded that the military judge’s error was not prejudicial, citing Barker v. Wingo, 407 U.S. 514 (1972).
Speedy Trial under
the UCMJ
Congress enacted various speedy trial provisions in the UCMJ to address concerns about “the length of time that a man will be placed in confinement and held there pending his trial”; to prevent an accused from “languish[ing] in a jail somewhere for a considerable length of time” awaiting trial or disposition of charges; to protect the accused’s rights to a speedy trial without sacrificing the ability to defend himself; to provide responsibility in the event that someone unnecessarily delays a trial; and to establish speedy trial protections under the UCMJ “consistent with good procedure and justice.” Uniform Code of Military Justice: Hearings on H.R. 2498 Before a Subcomm. of the House Comm. on Armed Services, 81st Cong. 905-12, 980-983, 1005 (1949). See United States v. Tibbs, 15 C.M.A. 350, 359, 35 C.M.R. 322, 331 (1965)(Ferguson, J., dissenting); United States v. Hounshell, 7 C.M.A. 3, 7-8, 21 C.M.R. 129, 133-34 (1956).
Where
an accused
is incarcerated pending disposition of charges under the UCMJ, Congress
has
placed the onus on the Government to take “immediate steps” to move
that case
to trial. Article 10,
UCMJ. “Particularly, [Congress]
indicated that delay cannot be condoned if the accused is in arrest or
confinement.”
While our cases have sometimes adopted different approaches to Article 10 speedy trial issues, they have consistently stressed the significant role Article 10 plays when servicemembers are confined prior to trial. We have referred to the right to a speedy trial as a “fundamental right” of the accused, United States v. Parish, 17 C.M.A. 411, 416, 38 C.M.R. 209, 214 (1968), and as “[u]nquestionably . . . a substantial right,” Hounshell, 7 C.M.A. at 6, 21 C.M.R. at 132. A number of our earlier cases included speedy disposition of charges under the concept of “military due process.” United States v. Prater, 20 C.M.A. 339, 342, 43 C.M.R. 179, 182 (1971) (citing United States v. Schlack, 14 C.M.A. 371, 34 C.M.R. 151 (1964)). See also United States v. Williams, 16 C.M.A. 589, 593, 37 C.M.R. 209 (1967).
The Government urges us to find that an unconditional guilty plea effectively waives a servicemember’s Article 10 speedy trial rights in all instances. In support of their argument the Government directs our attention to Sixth Amendment jurisprudence, Rule for Courts-Martial (R.C.M.) 707(e), and the Speedy Trial Act of 1974, Pub. L. No. 93-619, 88 Stat. 2070, and points out that the speedy trial protection under each of those provisions is waived by an unconditional guilty plea. We will examine each of these areas in turn.
Sixth
Amendment
The
Sixth Amendment to the United States Constitution contains the
constitutional
guarantee to a speedy trial.3
Although the text of the amendment does
not address waiver, courts have held that the Sixth Amendment right is
waived
by a voluntary guilty plea. See Cox
v. Lockhart, 970 F.2d 448, 453 (8th Cir. 1992)(“A
voluntary plea of guilty constitutes a waiver of all non-jurisdictional
defects[,] . . . [and] the right to a speedy trial is
non-jurisdictional in
nature.”) (citation omitted); Tiemans v.
United States, 724 F.2d 928,
929 (11th Cir. 1984) (“[A] guilty plea waives all non-jurisdictional
defects
occurring prior to the time of the plea, including violations of the
defendant’s
rights to a speedy trial and due process.”).
We
have consistently noted that Article 10 creates a more exacting speedy
trial
demand than does the Sixth Amendment.
Rule
for Courts-Martial 707
Rule
for Courts-Martial 707 contains the speedy trial provision in the Rules
for
Courts-Martial. Rule for Courts-Martial
707(e)
provides that “a plea of guilty which results in a finding of guilty
waives any
speedy trial issue as to that offense.” We
have found, however, that the language of Article 10 is “clearly
different”
from R.C.M. 707 and have held that Article 10 is not restricted by
R.C.M.
707. Cooper, 58 M.J. at 58-60
(holding
that the protections of Article 10 extend beyond arraignment); Kossman,
38 M.J. at 261 (“[I]n the area of subconstitutional speedy trial,
Article 10
reigns preeminent over anything propounded by the President.”).
The
protections afforded confined or arrested servicemembers under Article
10 are
distinct and greater given the nature of other speedy trial protections. See United States v. Reed, 41
M.J.
449, 451 (C.A.A.F. 1995) (listing sources for the right to a speedy
trial in
the military); United States v. Vogan, 35 M.J. 32, 33 (C.M.A.
1992) (also
listing military speedy trial right sources).
Rule for Courts-Martial 707(e) therefore does not act as a
limitation on
the rights afforded under Article 10.
Speedy
Trial Act
Courts have uniformly held that a guilty plea “constitutes a waiver of [an accused’s] rights under the
[Speedy Trial]
Act.”
We
therefore find nothing in the comparisons to the Sixth Amendment,
R.C.M. 707 or
the Speedy Trial Act that would compel our application of their speedy
trial waiver
rules to Article 10. It falls to this
court then to determine whether an unconditional guilty plea waives a
litigated
Article 10 speedy trial motion.
Article 10 Waiver
Precedent
Over
the years our cases have taken different views as to how or whether the
right
to a speedy trial under Article 10 could be waived.
These divergent views have manifested
themselves in cases involving forfeiture for failure to raise the issue
at
trial and as well as in cases considering waiver of the right due to an
unconditional guilty plea. In an early
case that considered Article 10 speedy trial rights, the court adopted
the view
that the right to a speedy trial could be forfeited for failing to
raise the
issue at trial:
The right to a speedy trial is a personal
right which can be waived. If the accused does not demand a trial or
does not
object to the continuance of a case at the prosecution's request or if
he goes
to trial without making any objection to the lapse of time between the
initiation of the charges and the trial, he cannot complain of the
delay after
he has been convicted.
Hounshell,
7 C.M.A. at 6, 21 C.M.R. at 133 (citation omitted). A short time
later, however, Judge Quinn, the
author judge in Hounshell, wrote
with regard to speedy trial in another contested case that “[i]n
the military, application of the rule of waiver, where the accused is
confined,
has little to recommend it.”
Similarly,
our cases involving waiver and unconditional guilty pleas have
vacillated. In United States v. Rehorn,
9 C.M.A.
487, 488-89, 26 C.M.R. 267, 268-69 (1958), the court stated, “It is a
fundamental principle of Federal criminal law that a plea of guilty
waives all
defects which are neither jurisdictional nor a deprivation
of due process of law.”
Subsequently in United States v. Schalck
the court held “that delay in preferring charges against the accused
was not
waived by his failure to raise the issue at trial and by his plea of
guilty.” 14 C.M.A. at
375, 34
C.M.R. at 155. See also United
States v. Goode, 17 C.M.A. 584, 587, 38 C.M.R. 382, 385 (1968)
(finding
that guilty plea does not deprive accused of protection afforded by
Article 10);
United States v. Cummings, 17 C.M.A. 376, 381, 38 C.M.R. 174,
179 (1968)(finding
that a waiver of the right to a speedy trial as part of a pretrial
agreement is
contrary to public policy); Tibbs, 15 C.M.A. at 353, 35 C.M.R.
at 325
(reiterating that accused who pleads guilty does not lose protection
accorded
by Article 10).
A
short time later, the court again changed
direction on waiver in another case involving a guilty plea: “We answer in the affirmative the certified
question . . . which asks whether ‘. . . an accused who does not object
at the
time of trial to a delay in excess of three months in bringing him to
trial
will be precluded from raising the issue at the appellate level . . .
.’” United States
v. Sloan,
22 C.M.A. 587, 590, 48 C.M.R. 211, 214 (1974) (citation omitted). Recently, in United States v. Birge,
this court acknowledged the rule of waiver from Sloan but
declined to
address whether an Article 10 speedy trial claim was waived by a guilty
plea
under R.C.M. 707(e). 52
M.J. 209, 211-12 (C.A.A.F. 1999).
We take this
opportunity to revisit our examination of whether an Article 10 claim
is waived
by an unconditional guilty plea or whether it may be reviewed by an
appellate
court in cases where the accused unsuccessfully raises an Article 10
issue at
trial and then enters an unconditional guilty plea.6 In view of
the legislative importance given
to a speedy trial under the UCMJ and the unique nature of the
protections of
Article 10 discussed above, we believe that where an accused
unsuccessfully
raises an Article 10 issue and thereafter pleads guilty, waiver
does
not apply. Such a rule for Article 10
rights properly reflects the importance of a servicemember’s right to a
speedy
trial under Article 10. Preservation of
the right to appeal adverse Article 10 rulings is not only supported by
the
congressional intent behind Article 10, it also maintains the high
standards of
speedy disposition of charges against members of the armed forces and
recognizes “military procedure as the exemplar of prompt action in
bringing to
trial those members of the armed forces charged with offenses.”
We therefore hold that a litigated speedy trial motion under Article 10 is not waived by a subsequent unconditional guilty plea. Thus, Mizgala’s unconditional guilty plea did not waive his right to contest the military judge’s denial of his Article 10 motion on appeal.8
Having concluded that Mizgala did not waive review of his Article 10 claim by entering an unconditional guilty plea, we proceed to the merits of that claim.
ARTICLE 10 SPEEDY TRIAL
The standard of
diligence under which we review claims of a denial of speedy trial
under
Article 10 “is not constant motion, but reasonable diligence in
bringing the
charges to trial.” Tibbs, 15 C.M.A. at 353, 35 C.M.R. at 325.
See also Kossman,
38 M.J. at 262; United States v.
We
review the decision of whether an accused has received a speedy trial
de novo
as a legal question, giving substantial deference to a military judge’s
findings of fact that will be reversed only if they are clearly
erroneous. Cooper,
58 M.J. at
57-59; United States v. Doty, 51 M.J. 464, 465 (C.A.A.F. 1999).
Facts Relevant to
the Speedy Trial Determination
The
parties stipulated at trial to a chronology of events relating to the
pretrial
processing of this case. Additional
information was provided by testimony from the deputy staff judge
advocate and
the former chief of military justice at Sheppard Air Force Base (AFB). Ultimately, the military judge made findings
of fact in support of his ruling on the speedy trial motion.
Mizgala
was absent without leave (AWOL) on January 18 and 19, 2001. Upon his return to military control, he
confessed to using cocaine while absent.
He went AWOL again on February 5, and remained absent until
February
28. This second absence ended because
Mizgala became involved in an off-base incident concerning an attempt
to steal
beer. Upon his return, he confessed that
he used both cocaine and marijuana during this absence.
Mizgala
was placed in pretrial confinement on February 28 and a pretrial
confinement
hearing was conducted three days later on March 3.
The hearing officer determined that continued
pretrial confinement was warranted because Mizgala was a flight risk
and likely
to engage in additional misconduct.
On
Of
importance in this case is that during the time that this case was
processed, the
legal office at Sheppard AFB was operating out of a temporary facility
because
a fire had destroyed their facility. On
The
trial counsel requested the litigation packet pertaining to the
pretrial
confinement urinalysis from the laboratory at
An
investigating officer was appointed under Article 32, UCMJ, 10 U.S.C. §
832
(2000), on May 22. He conducted the
investigation
on May 24 and completed the report of investigation the following day. The completed Article 32 investigation was
forwarded to the defense on May 29. The
record contains no indication that the defense made any objections or
filed any
comments on the report of investigation.
In the interim, a memorandum indicating that
On June 5, the
referral package and a related request for immunity were forwarded by
the
Sheppard AFB legal office to the staff judge advocate for the convening
authority. The R.C.M. 406 pretrial
advice9
was completed on June 20, and the case was referred to trial the
following
day. However, Mizgala was rapidly
approaching
the 120-day limit contained in R.C.M. 707 and because the Government
did not
believe that he could be tried before then, they released him from
pretrial
confinement on
After
considering the stipulated chronology
of events, two witnesses, and arguments, the military judge denied the
motion
to dismiss for violation of Article 10. Although
the military judge found “inefficiencies throughout this process,” he
ultimately held:
As such, at least as it applies to this
case, I find that the government has exercised reasonable diligence
insofar as
it has complied with R.C.M. 707 and as that equates to Article 10 in
this
particular circumstance. I do not
believe that the inefficiencies mentioned equate to negligence that’s
outlined
in Kossman, and I believe that is a standard that effectively
would have
to amount to gross negligence. And I
find that by a preponderance of the evidence.
When he later
announced additional findings, the military judge adhered to his speedy
trial ruling
and reiterated that “I must essentially equate the R.C.M. standard with
an
Article 10 violation.” He further stated
that gross negligence was required to support an Article 10 violation. Also, while the military judge’s ruling did
reflect some consideration of the Barker factors, it did so in
a manner that
indicated that the military judge limited his consideration to a Sixth
Amendment speedy trial analysis.
DISCUSSION
We
agree with the Court of Criminal Appeals that the military judge
plainly erred
in the manner in which he reviewed Mizgala’s Article 10 motion. His ruling was erroneous as a matter of law
in three regards. First, Article 10 and
R.C.M. 707 are distinct, each providing its own speedy trial protection. The fact that a prosecution meets the 120-day
rule of R.C.M. 707 does not directly “or indirectly” demonstrate that
the
Government moved to trial with reasonable diligence as required by
Article
10. See
Second,
the military judge erred in determining that he was required to find
gross
negligence to support an Article 10 violation in the absence of
Government
spite or bad faith. An Article 10
violation rests in the failure of the Government to proceed with
reasonable
diligence. A conclusion of unreasonable
diligence may arise from a number of different causes and need not rise
to the
level of gross neglect to support a violation.
Kossman, 38 M.J. at 261. Finally, the military judge erred by limiting
his consideration of the Barker v. Wingo factors to a Sixth
Amendment
speedy trial analysis. We have held that
“it is ‘appropriate’ to consider those factors ‘in determining whether
a
particular set of circumstances violates a servicemember’s speedy trial
rights
under Article 10.’” Cooper, 58
M.J. at 61 (quoting Birge, 52 M.J. at 212).
Turning
to the substance of Mizgala’s claim, our framework to determine whether
the
Government proceeded with reasonable diligence includes balancing the
following
four factors: (1) the length of the
delay; (2) the reasons for the delay; (3) whether the appellant made a
demand
for a speedy trial; and (4) prejudice to the appellant.
See Barker, 407
The
processing of this case is not stellar.
We share the military judge’s concern with several periods
during which
the Government seems to have been in a waiting posture:
waiting for formal evidence prior to
preferring charges and waiting for a release of jurisdiction for an
offense
that occurred in the civilian community.
There are periods evidencing delay in seeking evidence of the
off-post
offense and seeking litigation packages to support prosecution of the
drug
offenses. Nevertheless, constant motion
is not the standard so long as the processing reflects reasonable
diligence
under all the circumstances. Our
evaluation must balance the delay against the reasons for these periods
of
delay (such as the need to investigate offenses and obtain evidence),
with the need
to coordinate investigation and jurisdiction with civilian authorities. Once these necessary steps were completed,
the Government moved expeditiously to refer the charges.
As
to the consideration of possible prejudice, we find no material
prejudice to
Mizgala’s substantial rights. In this
regard, we note the test for prejudice set forth by the Supreme Court:
Prejudice, of course, should be assessed in
the light of the interests of defendants which
the
speedy trial right was designed to protect. This Court has identified
three
such interests: (i) to prevent oppressive pretrial incarceration; (ii)
to
minimize anxiety and concern of the accused; and (iii) to limit the
possibility
that the defense will be impaired. Of these, the most serious is the
last,
because the inability of a defendant adequately to prepare his case
skews the
fairness of the entire system.
Barker,
407
We
hold that Mizgala was not denied his Article 10 right to a speedy trial
and,
after our de novo review of the speedy trial issue,
we
find there was no prejudice from the military judge’s application of an
erroneous standard of law.
DECISION
The decision of the United States Air Force Court of Criminal Appeals is affirmed.
1
Mizgala entered guilty
pleas to attempted larceny, unauthorized absence, unauthorized absence
terminated by apprehension, two specifications of wrongfully using
cocaine, wrongfully
using marijuana, larceny of a motor vehicle, and larceny of personal
property
in violation of Articles 80, 86, 112a, and 121, Uniform Code of
Military
Justice (UCMJ), 10 U.S.C. §§ 880, 886, 912a, 921 (2000), respectively.
2 We granted review
of the following issues:
I.
WHETHER APPELLANT’S ARTICLE 10, UCMJ, RIGHT
TO A SPEEDY TRIAL WAS WAIVED BY AN UNCONDITIONAL GUILTY PLEA IF THE
GOVERNMENT
DID NOT BRING APPELLANT TO TRIAL WITH REASONABLE DILIGENCE, TRIAL
DEFENSE
COUNSEL LITIGATED THE MATTER AT TRIAL, AND APPELLANT DID NOT
AFFIRMATIVELY
WAIVE HIS RIGHT TO A SPEEDY TRIAL.
II.
WHETHER APPELLANT’S
ARTICLE 10, UCMJ, RIGHT TO A SPEEDY TRIAL WAS VIOLATED IF THE
GOVERNMENT DID
NOT BRING APPELLANT TO TRIAL WITH REASONABLE DILIGENCE.
3 The Sixth Amendment
provides, in pertinent part: “In all criminal prosecutions, the accused
shall
enjoy the right to a speedy and public trial . . . .”
4 Article 98, UCMJ, 10
U.S.C. § 898 (2000), provides:
Any person subject
to this
chapter, who (1) is responsible for unnecessary delay in the
disposition of any
case of a person accused of an offense under this chapter; or (2)
knowingly and
intentionally fails to enforce or comply with any provision of this
chapter
regulating the proceedings before, during, or after trial of an
accused; shall
be punished as a court-martial may direct.
5 18
U.S.C. § 3172 (2)(2000) (stating that
“offense” as used in the Speedy Trial
Act specifically excludes “an offense triable by court-martial”).
6 The pivotal issue in
this case involves the scope of the speedy trial right set forth in
Article 10,
UCMJ, and is an issue of statutory interpretation.
Therefore, the discussion in the dissent
regarding the application of the Bill of Rights to servicemembers is
not
pertinent to the present case.
7
8 By virtue of our
decision that Mizgala did not waive the Article 10 issue, it is not
necessary
to address his alternative claim of ineffective assistance of counsel.
9 Prior
to referral
of charges to a general court-martial, the staff judge advocate shall
consider
the charges and provide a written and signed advice to the convening
authority. R.C.M.
406(a), (b). That advice shall
include the staff judge advocate’s:
(1)
Conclusion with respect to whether each specification alleges an
offense
under the code;
(2)
Conclusion with respect to whether the allegation of each
specification
is warranted by the evidence indicated in the report of investigation
(is there
is such a report);
(3)
Conclusion with respect to whether a court-martial would have
jurisdiction over the accused and the offense; and
(4)
Recommendation of the action to be taken by the convening
authority.
R.C.M.
406(b).
10 The
period of delay
from June 22 to the date of trial is not at issue in this appeal.
CRAWFORD, Judge (dissenting in part and concurring in the result):
While the majority notes that Article 10, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 810 (2000), is a “more exacting” right, it overlooks the history behind the UCMJ provisions of the Manual for Courts-Martial, United States (2002 ed.)(MCM), and mainstream jurisprudence in this area. Thus, I respectfully dissent from the majority opinion that an unconditional plea of guilty does not waive Appellant’s rights to a speedy trial whether asserted under the Sixth Amendment, the UCMJ, or the MCM. The congressional history underlying Article 10 has not altered what a majority of the courts have held concerning unconditional guilty pleas.
History Behind
the UCMJ. When Congress passed the
UCMJ
in 1950, there was some question as to the applicability of the Bill of
Rights
to members of the Armed Forces. Fifty-five
years later, the Supreme Court still has never expressly held that the
Bill of
Rights applies to servicemembers. In
Early
in the Court’s history, when examining the question of speedy trial, it
“bottom[ed] those [constitutional] rights and privileges” on the Due
Process
Clause of the Fourteenth Amendment rather than on the specific
provisions in
the Bill of Rights.
The
right to counsel guaranteed under Article 27 was not applicable through
the
Bill of Rights to state proceedings until 1963.
It was not until that year, in Gideon v. Wainwright, 372
U.S. 335
(1963), that the Supreme Court extended the right to appointment of
counsel in
state cases to all indigent felony defendants.
Prior to that, Congress had ensured some right to counsel for
military
members by passing Article 27, but that right was limited to general
courts-martial. Congress extended this
right to special courts-martial in 1968.
Of course, it is not enough to have counsel; counsel must
zealously
represent the accused, starting with a full investigation of the case. See, e.g., House
v. Balkcom, 725 F.2d 608 (11th Cir. 1984).
The right to counsel is one of the most
valuable rights that a defendant possesses, but certain decisions are
for the
defendant to control while the remainder are
left with
counsel. The Supreme Court has
recognized that counsel has the authority to manage most aspects of the
defense
without obtaining the defendant’s approval.
See, e.g., Nixon v. Florida,
125 S. Ct.
551 (2004). In New York v.
Hill, the Supreme Court stated: “[D]efense
counsel’s agreement to a trial date outside the time period required by
[the
Interstate Agreement on Detainers] bars the defendant from seeking
dismissal
because trial did not occur within that period.” 528
Feeling
that the
self-incrimination clause did not apply to military members, Congress
enacted Article
31 to protect the right against self-incrimination in the military
setting. Additionally, in enacting
Article 31(b), Congress was concerned that the interrogation
environment in the
military and the interplay between military relationships and following
orders
deserved protection. See UCMJ
Hearings at 984-85. As this Court
stated, “[u]ndoubtedly it was the intent of Congress in this division
of the
Article to secure to persons subject to the Code the same rights
secured to
those of the civilian community under the Fifth Amendment to the
Constitution
of the United States -- no more and no less.”
Likewise, Congress enacted Article 44 because “the application of [the Fifth Amendment] is in doubt . . . . The matter could be clarified by extending the protection of the fifth amendment rather than granting protection by means of different or new statutory enactment.” Uniform Code of Military Justice: Hearings on § 857 and H.R. 4080 Before a Subcomm. of the Senate Comm. on Armed Services, 81st Cong. 111 (1949) (statement of Sen. Pat McCarran, Chairman, Senate Judiciary Comm.). House commentary on the UCMJ observed: “The question is whether the constitutional provision of jeopardy follows a person who enters military service.” H.R. Rep. 81-491 at 23.
As
to the double jeopardy provision, this Court reiterated the theme that
the
Constitution did not apply, stating, “The constitutional privilege
against
former jeopardy, applicable to the civilian community, is granted to
offenders
against military law by Article 44 . . . .”
In
the past, this Court applied a due process examination before it had
announced
that the Bill of Rights applies “except those [rights] which are
expressly or
by necessary implication inapplicable.”
The question of the application of the Fourth Amendment as to the right to privacy,6 the self-incrimination clause of the Fifth Amendment,7 speedy trial,8 or the right of confrontation cross-examination under the Sixth Amendment9 is moot based on congressional and presidential actions.
MCM Provision. The majority also overlooks R.C.M. 707(e), which states that: “Except as provided in R.C.M. 910(a)(2) [conditional pleas], a plea of guilty which results in a finding of guilty waives any speedy trial issue as to that offense.” (Emphasis added.) This provision by the President does not violate any constitutional provision -- there is certainly none prohibiting this waiver, and many federal courts provide for such a waiver.
Because the majority overlooks mainstream jurisprudence and the MCM provisions, I respectfully dissent.
1
10
U.S.C. § 827 (2000).
6 Military Rule of
Evidence (M.R.E.) 311-317.
7 Article 31, UCMJ; M.R.E.
301-306.
9 Article
46, UCMJ; R.C.M. 702, 703; M.R.E. 611.