CAAF will hear oral argument in the Marine Corps case of United States v. Wilder, No.15-0087/MC (CAAFlog case page), on Tuesday, October 6, 2015. The court will consider whether an old, judicially-created speedy trial rule still exists:
Whether the promulgation of RCM 707 abrogated the “substantial information” rule originated in United States v. Johnson, 23 C.M.A. 91, 48 C.M.R. 599 (1974).
On November 13, 2012, the appellant was apprehended by Naval Criminal Investigative Service agents who suspected him of child exploitation offenses. He was placed into pretrial confinement the next day, and he remained in pretrial confinement through trial. Charges were preferred against the appellant on December 4, 2012, the appellant was arraigned at a general court-martial on April 23, 2013, and trial was scheduled for August 27, 2013. But then additional charges were preferred on April 16 and July 17, 2013, and those additional charges were referred to a separate general court-martial.
The appellant moved to dismiss the additional charges for “violations of his right to a speedy trial under Rule for Courts-Martial (R.C.M.) 707, Article 10, UCMJ, and the Sixth Amendment.” App. Br. at 5-6. Pretrial negotiations followed, and the appellant agreed to withdraw his motion to dismiss (prior to litigation), to consent to joinder of all of the charges in a single court-martial, and to plead guilty to attempted sexual assault of a child in violation of Article 80, and possession and distribution of child pornography in violation of Article 134. On November 12, 2013, the appellant was sentenced confinement for 13 years, reduction to E-1, total forfeitures, and a dishonorable discharge. In accordance with the pretrial agreement the convening authority suspended all confinement in excess of 48 months.
The appellant again raised his speedy trial claims on appeal, asserting that the withdrawal of the speedy trial motion was an impermissible term of the pretrial agreement. The NMCCA agreed (in a decision I discussed here) and reviewed the speedy trial issue de novo. Separating the earlier charges (arraigned first) from the later charges (arraigned second), the CCA concluded that there was no speedy trial violation under R.C.M. 707, Article 10, or the Sixth Amendment. In so concluding, the CCA held “that R.C.M. 707(a)(1) establishes the commencement of the speedy trial clock for the additional charges as the dates of preferral,” not the date of imposition of pretrial confinement. Slip op. at 6. CAAF then granted review.
“There are a number of sources of the right to a speedy trial in the military: (1) statute of limitations; (2) Due Process Clause of the Fifth Amendment; (3) Sixth Amendment speedy-trial guarantee; (4) Articles 10 and 33 of the [UCMJ]; (5) RCM 707, [Manual for Courts-Martial]; and (6) case law.” United States v. Reed, 41 M.J. 449, 451 (C.A.A.F. 1995). These sources broadly fall into three categories: Constitutional, statutory, and regulatory. While the appellant asserted a violation of all three categories of speedy trial rights, CAAF’s review focuses on the interplay between two of those categories: The statutory speedy trial right in Article 10 and the regulatory speedy trial right in R.C.M. 707.