IN THE CASE OF
UNITED
STATES, Appellee
v.
Allen
L. DOOLEY,
Photographer’s Mate Second Class
No.
05-6002
Crim.
App. No. 200401792
Argued
Decided
GIERKE, C.J.,
delivered the opinion of the Court, in which CRAWFORD, EFFRON, BAKER,
and ERDMANN,
JJ., joined.
Counsel
For Appellant: Captain
Richard A. Viczorek, USMC (argued).
For Appellant: Major
Kevin C. Harris, USMC (argued); Commander Charles N. Purnell II,
JAGC, USN (on brief).
Military Judge: Lewis
T. Booker Jr.
This opinion is subject to
revision
before final publication.
Chief
Judge GIERKE
delivered the opinion of the Court.
The
military judge
dismissed Appellant’s case with prejudice based on a violation of Rule
for
Courts-Martial (R.C.M.) 707, the right to a speedy trial.
The United States Navy-Marine Corps Court of
Criminal Appeals (CCA) agreed that a violation of R.C.M. 707 had
occurred but
disagreed with the military judge’s decision to dismiss with prejudice
and
reversed his decision.1 This case illustrates the difficulty an
intermediate appellate court faces when balancing the deference due a
military
judge under the abuse of discretion standard with the potential drastic
remedy
of dismissal with prejudice. We granted
review to determine if the lower court erred in reversing the military
judge’s
decision.2
We
hold that the
military judge did not abuse his discretion in dismissing Appellant’s
case with
prejudice. We therefore reverse the
opinion of the Navy-Marine Corps Court of Criminal Appeals and
reinstate the decision
of the military judge to dismiss with prejudice.
PROCEDURAL
BACKGROUND
In
1998, Appellant
was tried and convicted of the receipt and possession of child
pornography in
violation of Article 134(3), Uniform Code of Military Justice (UCMJ).3
Appellant
served seven months of confinement. This
Court set aside his conviction on
I.
The military judge’s decision to dismiss with prejudice9
The
military judge
first concluded that the Government had violated R.C.M. 707 because
Appellant
was arraigned more than 120 days after the convening authority received
the
record. The military judge found that
the record of trial, along with this Court’s opinion, was received at
the
headquarters of the Commander, Naval Air Force, U.S.
Atlantic Fleet (COMNAVAIRLANT) on
The
military judge
then considered the four factors listed under R.C.M. 707 to determine
whether
the dismissal should be with prejudice. First,
the military judge considered the seriousness of the offense. He stated that the “allegations against
[Appellant]
are serious, both in terms of the punishment that they could have
carried but
for Article 63, UCMJ, . . ., and for the societal norms that they
implicate.”
Considering
the
factors that led to dismissal, the military judge acknowledged that the
Government’s efforts to review the case were “praiseworthy,” and that
the
“efforts to minimize the impact on the accused are to be applauded.” But he found that “inordinate delay occurred
at several points in the process.” More specifically, the military judge found
that the “courtesy screening”10 of the
“relatively small record of trial (under 150 pages)” took over a month. Then, two more months elapsed “pending the
referral decision; granted, some of that time was necessary to locate
the
evidence and to evaluate it, but the Government has not made a
convincing case
that all of that time was necessary.”
Furthermore, it took nearly two weeks for the Government to
route a
docketing request. The military judge
also found that “[e]ven scheduling the hearing on the speedy trial
motion
revealed some lack of urgency on the part of the Government . . . .” Finally, he recognized that “the Defense had
by that point requested a continuance, but the Government should still
have
been prepared to go at an earlier date.”
The
third R.C.M. 707 factor is the effect of a retrial on the
administration of
justice. The military judge asserted
that R.C.M. 707 would lose its plain meaning if a trial is allowed to
proceed
in this case. Interpreting the rule, he
focused on the accountability of the convening authority over his
subordinate
servicemembers. The military judge
rejected the Government’s implicit attempt to insulate the convening
authority
from the delay caused by subordinates. He
noted that the rule refers to a “responsible convening authority,”
rather than a
“legal advisor to the responsible convening authority.”
If a convening authority was not held
accountable for time awaiting legal advice, the military judge
reasoned, “[a]
command without a staff judge advocate attached would be able to drag
out
proceedings ad infinitum, waiting on the desired legal advice. Commands with labyrinthe routing systems
would be given a pass from the requirements of the rule.”
The military judge concluded by stating that
he does “not fear that commanders will bypass necessary staff advice in
order
to comply with the rule; rather, the court believes that commanders
will impose
reasonable, attainable milestones for action in a given case.”
Finally,
the military judge considered “any prejudice resulting [to Appellant]
from [the]
denial of a speedy trial.”11 He
found that Appellant is “suffering
prejudice daily.” Recognizing that
Appellant is earning pay and allowances established by law and that the
Government put forth “substantial effort” to minimize the impact on
Appellant, the
military judge found that “he is in fact being subjected to punishment
in the
Transient Personnel Unit without due process.
He is a photographer’s mate who is not permitted to work in his
rating. He is a second class petty
officer who is not supervising troops.”
II. The Navy-Marine Corps Court
of Criminal Appeals’ review of the military judge’s decision
The
CCA adopted
the military judge’s finding that more than 120 days passed between the
date the
convening authority received the record of trial and the date the
Government
was prepared to arraign Appellant.12 Thus,
it agreed that there was a violation of
R.C.M. 707.13 But the lower court concluded that the
military judge abused his discretion in dismissing with prejudice.14
Regarding
the
first factor under R.C.M. 707, the CCA “fully concur[red]”
with the military judge’s finding that Appellant’s crimes were serious.15
However, the court disagreed with the military judge’s analysis
of the
other three factors. Regarding the first
factor -– the facts and circumstances that led to the delay -- the CCA
determined that the military judge erred by imposing a higher standard
on the
Government under R.C.M. 707 than is imposed under Article 10, UCMJ.16
Under Article 10, it must be shown that the Government did not
proceed
with “reasonable diligence”17 or that
it acted with “intentional dilatory conduct.”18 The
CCA found no evidence of either in this
case.19
Furthermore, “brief periods of inactivity in an otherwise active
prosecution are not unreasonable or oppressive.”20 Concluding
its discussion of the first factor, the CCA disagreed with the military
judge
that “this case of ‘under 150 pages’ should
not have
taken so long to review.” The CCA stated
that, because the case was reversed based on this Court’s decision in O’Connor,
“the Government was obligated to locate the evidence and evaluate it to
determine whether the images [Appellant] had received and possessed
were images
of actual children.”21
Discussing
the
effect of a retrial on the administration of justice, the CCA asserted
that the
military judge’s analysis “seems wide of the
mark,”
because “he focuses solely on the question of when a responsible CA
receives
the record and the opinion authorizing a rehearing.
That simply addresses the question of when
the speedy trial clock began to tick in this case, and not the impact
on the
administration of justice.”22 The
lower court noted that missing from the
military judge’s analysis is any consideration of the fact that this
case was
returned because the Supreme Court, in Ashcroft v. Free Speech
Coalition,23
struck down a portion of the statute
Appellant was convicted of violating.24 The
CCA then determined that the effect of a
retrial is “relatively neutral . . . . Due to the limited holding in Free
Speech Coalition, the Government is allowed an opportunity to retry
[Appellant]
and [Appellant] would be accorded all his legal rights.”25
Moreover,
the lower
court disagreed with the military judge’s assessment of prejudice
against
Appellant.26 The CCA agreed with the Government that any
prejudice experienced by Appellant “is incidental to his being
activated to
stand trial and not a result of any delay on the part of the
Government.”27 The
lower court noted that “also missing from the military judge’s analysis
is
consideration of the fact that” Appellant was not on active duty for
100 of the
125 days it took the Government to be prepared to arraign Appellant
from the
date the “responsible CA received the record.”28 Rather,
Appellant was recalled to active duty
on
Finally,
the CCA noted
that the military judge did not consider the Discussion to R.C.M. 707(c)(1), which provides that the excludable periods
of time
from the 120-day calculation include the “time to process a member of
the
reserve component to active duty for disciplinary action.”30 The
CCA finds the situation in this case analogous to recalling a
servicemember to
active duty.31 It asserted that, similar to the situation in
United States v. Dies,32 “the CA
could have exercised his discretion and excluded a portion of the
period of
time during which [Appellant] was still in an inactive duty status,
avoiding this
entire R.C.M. 707 issue.”33
The
CCA concluded
that “this case is not a close call.”34 It
held, therefore, “that the military judge
clearly abused his discretion when he dismissed the Charge and
Specifications .
. . with prejudice.”35
DISCUSSION
Under
R.C.M. 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
R.C.M.
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.36 We
conclude that, in this case, the
Navy-Marine Corps Court of Criminal Appeals erred in reversing the
military
judge’s decision because it applied an improper standard of review.
I.
The standard of review
United
States
v. Gore37
presented us with an
issue similar to the one in this case.
In Gore, the military judge dismissed all charges with
prejudice
as a remedy for unlawful command influence and the Government appealed,
pursuant to Article 62, UCMJ.38 Although
the CCA agreed with the military
judge that there was unlawful command influence, it determined that the
military judge abused his discretion in dismissing the case with
prejudice.39 We stated
that, because neither the lower court nor the Government challenged the
finding
of unlawful command influence, the real issue was “whether the military
judge
erred in fashioning the remedy.”40
Similarly,
in this
case, neither the Government nor the lower court disputes that a
violation of
R.C.M. 707 occurred. Rather, both maintain
that the case should not have been dismissed with prejudice and that
the
Government should have the opportunity to retry Appellant.
The pertinent question for our review,
therefore, is whether the military judge erred in his conclusion that
an
analysis of the factors listed in R.C.M. 707 supports dismissal of
Appellant’s
case with prejudice.
In Gore,
we
explained the deference that must be accorded a military judge under
the abuse
of discretion standard. We stated:
An abuse of discretion means that
when judicial action is taken in a discretionary manner, such action
cannot be
set aside by a reviewing court unless it has a definite and firm
conviction
that the court below committed a clear error of judgment in the
conclusion it
reached upon a weighing of the relevant factors . . . . We will reverse
for an
abuse of discretion if the military judge’s findings of fact are
clearly
erroneous or if his decision is influenced by an erroneous view of the
law . .
. . Further, the abuse of discretion standard of review recognizes that
a judge
has a range of choices and will not be reversed so long as the decision
remains
within that range.41
“[D]ismissal
is a
drastic remedy and courts must look to see whether alternative remedies
are
available.”42 But dismissal is “appropriate when an accused
would be prejudiced or no useful purpose would be served by continuing
the
proceedings.”43 Deference to the military judge’s decision is
particularly prudent in those cases when a violation of R.C.M. 707(d)
has
occurred
because, as the legislative history of the Speedy Trial Act44 demonstrates, Congress
clearly intended
trial judges to have “guided discretion” whether to dismiss with or
without
prejudice.45 Furthermore, “neither remedy was given
priority.”46
Rather, a military judge’s decision is
guided
by the factors articulated in R.C.M. 707 and can be reversed only for a
clear
abuse of discretion. More specifically,
the military judge’s decision in this case should be affirmed unless
his
factual findings are clearly erroneous or his decision in applying the
R.C.M.
707 factors was influenced by an incorrect view of the law.47
II. Application of the R.C.M.
707 factors
Under
R.C.M. 707,
the first factor that a military judge must consider in determining
whether to
dismiss with prejudice is the seriousness of the offense.
In this case, the military judge and the CCA
agree that Appellant’s crimes were serious.
The finding that the receipt and possession of child pornography
is a
serious offense, in its impact on both victims and society, is not
clearly
erroneous.
In
analyzing the
facts and circumstances that led to his decision to dismiss with
prejudice, the
military judge weighed the efforts of the Government that he found
“praiseworthy” and “to be applauded” against the factors that
contributed to
the delay. He clearly articulated the
basis for his findings –- that, despite the good efforts by the
Government, all
the elapsed time was not “necessary” and it showed a “lack of urgency”
on the
part of the Government. We agree with
the CCA that the military judge did not find “intentional dilatory
conduct on
the part of the Government” and that he did not explicitly state that
the
Government’s attitude was “truly neglectful.”48 Whether
the military judge used these exact
phrases, however, is not the test under the abuse of discretion standard. Rather,
the
question is whether his findings of fact were “‘clearly erroneous or if
his
decision is influenced by an erroneous view of the law.’”49 The
CCA did not find that the military judge’s factual findings were
clearly
erroneous. Rather, it stated the
military judge’s findings were factually correct and “clearly supported
by
th[e] record.”50 Because the CCA was essentially asserting
that it disagreed with the military judge that the Government’s actions
did not
constitute “truly neglectful” conduct, we
agree with
Appellant that the CCA was substituting its judgment for that of the
military
judge. Therefore, the CCA erred by
performing a de novo review of the “facts and circumstances that le[d]
to
dismissal.”51
The
third factor
to consider under R.C.M. 707(d) is the
We
agree with the
CCA’s interpretation that the “effect of a retrial is relatively
neutral in
this case.”53 On the one hand, the Government’s interest in
reprosecuting Appellant is diminished because he served seven months of
confinement in 1998. Thus, even if
Appellant is reprosecuted and convicted, he cannot serve any more
confinement. On the other hand,
dismissing the case with prejudice means that Appellant will no longer
be a
“convicted” possessor of child pornography due to the 2004 decision to
overturn
his conviction. Additionally, as noted
by the CCA, his conviction was overturned because of the Supreme
Court’s
holding in Ashcroft v. Free Speech Coalition.
If Appellant is retried,
the Government would have the opportunity to retry him in light of the
new
legal precedent and Appellant would not be convicted based on an
erroneously
overbroad definition of child pornography.
Although
the CCA properly
interpreted the effect of retrial on the administration of justice, it
did not clearly
articulate an appropriate basis to overturn the military judge’s
decision.54
Rather than determining that the military judge was clearly
erroneous in
any factual finding or that his decision was based on an incorrect view
of the
law, the CCA stated that it did not “concur” with the military judge’s
decision
and that it found the effect of the retrial relatively neutral.55
Thus the CCA failed to apply the correct legal standard in
reversing the
ruling of the military judge.
The
final factor
that must be considered under R.C.M. 707(d) is prejudice to the accused. Prejudice may take many forms, thus “such
determinations must be made on a case-by-case basis in the light of the
facts.”56
Prejudice can include any detrimental effect on Appellant’s
trial
preparation,57
or any impact on the
right to a fair trial.58 It can also include any restrictions or
burdens on his liberty,59
such as
disenrollment from school or the inability to work due to withdrawal of
a
security clearance.60 Regarding prejudice to Appellant, the
military judge clearly articulated that he found Appellant was
“suffering
prejudice daily.” He found that
Appellant was “in fact being subjected to punishment in the Transient
Personnel
Unit without due process,” because he is a photographer’s mate not
allowed to
work in his rating and a second class petty officer not permitted to
supervise
troops.
The
CCA stated
that it “disagree[ed] with the assessment by
the
military judge” and that it “concur[ed]” with the trial counsel’s
argument that
any prejudice suffered by Appellant is incidental to recall for trial.61
Whether the CCA disagrees with the military judge or concurs
with the
trial counsel is not the standard of review.
The military judge clearly articulated his reasoning for
believing
Appellant was being unfairly prejudiced.
Therefore, the CCA could not reverse the military judge’s
prejudice
finding absent a determination that it was clearly erroneous.
Furthermore,
other
evidence of prejudice was on the record and before the military judge. Approximately sixteen pages of the record was
devoted to exploring the prejudice Appellant was suffering because he
was
recalled to active duty after five years of appellate leave.62 We
note these other forms of prejudice solely to emphasize that the
military judge
was in the best position to assess the prejudice Appellant was
suffering
because he questioned Appellant extensively about his life since being
recalled. We need not, however, consider
these factors in concluding that the factual findings of the military
judge
were neither clearly erroneous nor based on an incorrect view of the
law. Therefore, the military judge did not
abuse
his discretion and the CCA erred in reversing his decision to dismiss
with
prejudice.
DECISION
The
decision of the Navy-Marine Corps Court of Criminal Appeals is reversed. The decision of the military judge is
reinstated.
1 See
2 More
specifically, we granted review of the following issue:
Whether the
Navy-Marine Corps
Court of Criminal Appeals erred by applying the wrong standard of
review when
it reversed the military judge’s decision to dismiss the charge and
specification with prejudice?
3 10 U.S.C. §
934 (2000). Appellant was
convicted of violating 18 U.S.C. §
2252A, incorporated under Article 134, UCMJ.
4
5 58 M.J. 450, 453 (C.A.A.F.
2003).
6 R.C.M. 707
states that, “[i]n determining whether to dismiss charges with or
without
prejudice, the court shall consider, among others, each of the
following
factors: the seriousness of the offense; the facts and circumstances of
the
case that lead to dismissal; the impact of a reprosecution on the
administration of justice; and any prejudice to the accused resulting
from the
denial of a speedy trial.” R.C.M. 707(d).
8 Dooley, 2005 CCA
LEXIS 90, 2005 WL 1389137.
9 We note that
the military judge’s order was originally missing page four when it was
filed
with the Navy-Marine Corps CCA as Appellate Exhibit XVI.
On
10 Although
the military judge does not define the time period which he labeled as
the “courtesy
screening,” it appears that the military judge was most likely
referring to the
period between July 20 and August 23. Based
on the testimony of Lieutenant Biles, who was working in the
COMNAVAIRLANT Staff
Judge Advocate Office at the time, this time elapsed while the Trial
Service
Office was reviewing Appellant’s case and determining whether to
recommend reprosecuting
Appellant. About two more months then
elapsed between August 23 and October 22, when Appellant was recalled
to be
reprosecuted.
12 See Dooley,
2005 CCA LEXIS 90, at *5-*7, 2005 WL 1389137, at *2.
14 2005 CCA LEXIS 90, at
*10-*16, 2005 WL 1389137, at *4-*5.
15 2005 CCA LEXIS 90, at
*10, 2005 WL 1389137, at *4.
16 2005 CCA LEXIS 90, at
*11-*12, 2005 WL 1389137, at *4.
17
18
19 Dooley, 2005 CCA
LEXIS 90, at *11, 2005 WL 1389137, at *4.
20
21 2005 CCA LEXIS 90, at
*12, 2005 WL 1389137, at *4.
24 2005 CCA LEXIS 90, at
*12-*13, 2005 WL 1389137, at *4.
25 2005 CCA LEXIS 90, at
*13, 2005 WL 1389137, at *4.
26 2005 CCA LEXIS 90, at
*13-*14, 2005 WL 1389137, at *5.
27 2005 CCA LEXIS 90, at
*13, 2005 WL 1389137, at *5.
28 2005 CCA LEXIS 90, at
*13-*14, 2005 WL 1389137, at *5.
29 2005 CCA LEXIS 90, at
*14, 2005 WL 1389137, at *5.
30
32 45 M.J. 376, 378
(C.A.A.F. 1996).
33 Dooley, 2005 CCA
LEXIS 90, at *14, 2005 WL 1389137, at *5.
34 2005 CCA LEXIS 90, at
*15, 2005 WL 1389137, at *5.
36 See
37 60 M.J. 178 (C.A.A.F.
2004).
41 Gore, 60 M.J. at
187 (internal quotations and citations
omitted).
42
43
44 R.C.M.
707(d) is based on the Speedy Trial Act of 1974, 18 U.S.C. § 3162 (2000). See
Manual for Courts-Martial,
46
47 See Taylor,
487
48 See Edmond,
41 M.J. at 421-22 (holding that the military judge did not abuse his
discretion
in dismissing charges without prejudice under R.C.M. 707 because there
was no
“intentional dilatory conduct” by the Government and there was little
prejudice
suffered by the appellee).
49 Gore, 60 M.J. at
187 (citations omitted).
50 Dooley, 2005 CCA
LEXIS 90, at *6, 2005 WL 1389137, at *2.
52 See generally United
States v. Scott, 743 F. Supp.
400, 407-08 (D. Md. 1990). The
court determined there was a “rather even balance” between the
arguments of the
two parties regarding the administration of justice factor. It weighed the defendant’s argument –- that
the
justice system already has mechanisms to ensure that the defendant will
be
punished for his alleged misconduct –- against the Government’s
argument –-
that a defendant will be able to avoid prosecution by entering plea
negotiations and refusing Government offers until a speedy trial
violation has
occurred.
53 Dooley, 2005 CCA
LEXIS 90, at *13, 2005 WL 1389137, at *4.
54 2005 CCA LEXIS 90, at
*11-*15, 2005 WL 1389137, at *4-*5.
55 2005 CCA LEXIS 90, at
*12-*13, 2005 WL 1389137, at *4.
56 Taylor,
487
58 Edmond,
41 M.J. at 422; see also Gore, 60 M.J. at 187-88
(affirming the
military judge’s dismissal with prejudice where the military judge
identified
the extent and negative impact of the unlawful command influence on the
appellant’s right to a fair trial).
61 Dooley, 2005 CCA
LEXIS 90, at *13, 2005 WL 1389137, at *5.
62 According
to Appellant’s testimony, not only did he lose his job, but because he
was
informed on October 14 that he would be recalled on October 18, he also
lost
his seniority status and any chance of returning to that job. Because he did not give the required two
weeks notice before quitting, his boss was “shocked and amazed” at
Appellant
being recalled and has failed to contact him since.
Additionally, Appellant’s fiancée, a
homemaker, lost the benefits she was entitled to under Appellant’s
former
employment and began receiving welfare.