CAAF decided the Coast Guard case of  United States v. Leahr, 14-0265/CG, 73 M.J. 364 (CAAFlog case page) (link to slip op.), on Friday, July 25, 2014. A divided court finds that Appellant’s regulatory speedy trial right was not violated in this case because the charges were dismissed and re-preferred, resetting the 120-day speedy trial clock. Additionally, the court finds no improper reason behind the dismissal. The court also rejects – in a brief footnote – a challenge to the impartiality of the military judge. CAAF affirms Appellant’s convictions and the decision of the Coast Guard CCA.

Judge Ryan writes for the court, joined by Chief Judge Baker and Judge Ohlson. Judge Stucky dissents, joined by Judge Erdmann.

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of one specification of larceny, four specifications of assault consummated by a battery, and two specifications of wrongfully communicating a threat, in violation of Articles 121, 128, and 134. He was acquitted of additional allegations of assault, as well as allegations of burglary and kidnapping. The members sentenced Appellant to confinement for three months, reduction to E-1, and a bad-conduct discharge.

Appellant’s brief to CAAF explained that the charges involved two alleged victims. Most of the charges alleged offenses against Appellant’s fiancee (BM), but one of the assault specifications involved another Coast Guard member (LS). The allegation involving LS wasn’t discovered by the Government until after the Article 32 investigation was complete and Appellant was arraigned on the other charges. The allegation was otherwise unrelated to the case and involved events that occurred a year prior (and Appellant was ultimately acquitted of that offense). But,

 Based on this new allegation, on September 1, 2011, the convening authority signed a document titled, “Withdrawal and Dismissal of Charges Against Appellant],” which stated:

The charges and specifications referred to a general court-martial on 16 June 2011 in the case of United States v. AST2 Jaason M. Leahr, USCG, are hereby withdrawn and dismissed without prejudice. . . . In anticipation of the possibility that this new allegation will cause [Appellant] to become the subject of a newly preferred additional charge which would warrant referral to a court-martial, I desire that the accused to be [sic] tried on all charges at a single trial to best serve the interests of justice and promote judicial economy.

Slip op. at 4. Five days later the original charges were re-preferred, with two changes. The first change was an addition of terminal element language to the Article 134 specifications (it was omitted from the first charge sheet). The second change was the addition of a specification of assault consummated by a battery involving LS. A second Article 32 investigation was conducted, but it only considered the new specification. The charges were then referred to another general court-martial, and Appellant moved to dismiss for improper referral and violation of his regulatory speedy trial right under Rule for Courts-Martial 707. “The military judge denied both motions finding, among other things, that the withdrawal and dismissal of the original charges was valid and for a proper reason.” Slip op. at 5-6. The CCA affirmed, “relying on the fact that the convening authority dismissed the original charges,” and “that the reason for withdrawal and re-referral was greater judicial and cost efficiencies.” Slip op. at 6 (marks and citations omitted).

CAAF then granted review of three issues:

I. Whether the military judge erred in denying the defense motion to dismiss for violation of appellant’s right to speedy trial under RCM 707.

II. Whether the government’s withdrawal of charges and re-referral to another court-martial was in violation of RCM 604(b) because they were previously withdrawn for an improper reason.

III. Whether appellant was denied a fair trial when the military judge twice suggested in front of the members that appellant was guilty, first by “thanking” a witness for his efforts to protect the victim, and then by asking defense counsel before findings whether a witness would be subject to recall as a “sentencing witness.”

Judge Ryan frames the first (and main) issue as a question of fact:

In this case, if the convening authority dismissed the original charges on September 1, 2011, the dismissal reset the speedy trial clock and no violation under R.C.M. 707 occurred. If, however, his action amounted to a withdrawal only, the speedy trial clock was not reset and the 190-day period between the initial preferral on March 1, 2011, and arraignment on all charges on November 8, 2011, violated R.C.M. 707.

Slip op. at 8 (citations omitted). The majority concludes that “on balance . . . the convening authority intended to, and did, dismiss the original charges.” Id.

Judge Ryan explains that there were two legitimate reasons for the dismissal in this case: The desire to join the (then-anticipated) new charge, and the defective Article 134 specifications. While it would have been possible to accomplish this without dismissing everything (by merely withdrawing the non-defective charges, preferring the new charges, and then re-referring all together), “this does not preclude withdrawing and dismissing the original charges absent an improper reason.” Slip op. at 9 (emphasis in original). And, “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.” Slip op. at 13.

Judge Ryan’s analysis of the dismissal turns more on whether it happened than what it means.. For instance, she writes:

It is true that the convening authority expressly stated the reason for the withdrawal and dismissal, and clearly contemplated further action against Appellant at some point in the future. But we disagree that the mere fact that a convening authority intends at the time of dismissal to pursue future action against an accused is dispositive as to whether a dismissal was intended and effective.

Slip op. at 11. I think these two sentences are uncontroversial, but neither Judge Ryan’s majority opinion, nor Judge Stucky’s dissent, mentions the other option available to the convening authority in this case: withdrawal coupled with approval of delay under R.C.M. 707(c) (though Judge Stucky does emphasize that in this case, mere withdrawal was the more appropriate course of action). The convening authority clearly expected re-preferral of the original charges, and Appellant remained subject to some form of pretrial restraint throughout this process. Considering those facts, I think withdrawal, approved delay, and Government diligence in getting the case back into court, rather than dismissal, would have been a better route for the convening authority.

Ultimately, Judge Ryan finds no impropriety in the dismissal, noting that “while the convening authority might have sought Appellant’s permission both to add an additional charge, see R.C.M. 601(e)(2), and to make major amendments to the original Article 134, UCMJ, specifications to add the terminal elements, see R.C.M. 603(d), there is no requirement that he do so, and withdrawal and dismissal were appropriate means available to effectuate those ends.” Slip op. at 14.

Judge Ryan and the majority similarly find no impropriety in the re-referral. “[CAAF] has previously found ‘withdrawal . . . for the purpose of judicial economy by trying all known charges in a single trial” to be proper where an accused was not unfairly prejudiced.'” Slip op. at 15 (quoting United States v. Koke, 34 M.J. 313, 315 (C.M.A. 1992)). “Consequently, under the facts of this case, the convening authority’s reasoning for the withdrawal and subsequent dismissal was proper. Additionally, the withdrawal and dismissal did not unfairly prejudice Appellant.” Slip op. at 16 (paragraph break omitted).

The final granted issue – questioning the impartiality of the military judge based on comments made during the trial – is summarily rejected in a footnote. Slip op. at 2-3 n.1.

Judge Stucky’s dissent goes no further than the first issue, as he and Judge Erdmann believe that “the convening authority’s ‘withdrawal and dismissal’ was too ambiguous to be understood as an effective dismissal.” Stucky, J. diss. op. at 1. Judge Stucky focuses on two statements made by the convening authority in this case:

First, Judge Stucky observes that the convening authority’s “confluence of ‘withdraw[ing] and dismiss[ing]’ charges indicates that he did not necessarily acknowledge the difference and the legal effect of the two distinct actions.” Diss. op. at 1-3. Because charges need not be withdrawn in order to be dismissed, it is unnecessary to combine the two actions to effectuate a dismissal. A convening authority can – and should – simply dismiss a referred charge (where dismissal is the desired result). But this is a nuance of court-martial procedure and any practitioner can confirm that mere dismissal is rare; withdrawal and dismissal are routinely (though unnecessarily) combined.

Second, Judge Stucky observes that:

When the convening authority repreferred charges, he stated they were “to be tried in conjunction with” the first charges, but the new charges were nearly identical to the first set except for one additional specification. The convening authority’s statement is nonsensical because if the new charges were meant to add on to the first set of charges, they would be duplicative; and they could not be tried together with the first set because those had purportedly been withdrawn.

Diss. op. 2. And dismissed, one might add. Nonsensical is definitely the right word to describe this action. But I think Judge Sticky expects too much. This sort of procedural error is not uncommon, and I don’t think it improper to look to the convening authority’s intent (which, in this case, was to enable investigation into and joinder of the new allegation).

That said, I don’t think it the slightest bit unfair for Judges Stucky and Erdmann to expect greater competency from a commander exercising convening authority. In fact, both Judge Ryan’s majority opinion and Judge Stucky’s dissent repeatedly cite United States v. Britton, 26 M.J. 24 (C.M.A. 1988). Britton was a case tried within months of the August 1, 1984, effective date of the 1984 Manual for Courts-Martial containing the first version of the modern Rules for Courts-Martial, and it involved misapplication of those rules when charges were withdrawn but not dismissed, leading to a speedy trial violation. Affirming the decision of the Air Force CCA that dismissed the affected charges, the CMA noted that “the convening authority did not act to dismiss [the withdrawn charges].” Id. at 26. This was perhaps because the convening authority did not understand the Rules for Courts-Martial. But that was in 1984, and the issue in Leahr arose in 2011. The better part of three decades should be enough time to get commanders familiar with the system that is so often called the commander’s tool to maintain good order and discipline. 

Judge Stucky explains that the convening authority’s ambiguous action resulted in a speedy trial violation, requiring dismissal. But while R.C.M. 707 permits dismissal with or without prejudice in this situation, the dissenters believe that dismissal with prejudice is appropriate. Judge Stucky explains:

Considering the age of this case, the proper remedy would be to dismiss the charges with prejudice. See United States v. Dooley, 61 M.J. 258, 264 (C.A.A.F. 2005) (holding that the military judge did not abuse his discretion in dismissing charges with prejudice under R.C.M. 707(d), in part because reprosecution would only cause further delay and because the appellant already served his adjudged sentence to confinement, so the Government had diminished interest in reprosecuting him).

Diss. op. at 5.

Appellants with speedy trial claims haven’t fared well at CAAF over the past year, and this is just another Government victory in a string of victories. With United States v. Danylo, 73 M.J. 177 (C.A.A.F. Mar. 24, 2014) (CAAFlog case page) (addressing the Sixth Amendment constitutional speedy trial right), United States v. Wilson, 72 M.J. 347 (C.A.A.F. Jul. 11, 2013) (CAAFlog case page) (addressing the Article 10 statutory speedy trial right), and this case addressing the R.C.M. 707 regulatory speedy trial right, CAAF has consistently denied relief to appellants making speedy trial claims.

But one notable aspect of CAAF’s decision in this case is the degree to which the court relies on the discussion to the Rules for Courts-Martial. Judge Ryan cites and quotes the discussion a total of ten times, and Judge Stucky quotes it twice. That’s pretty extraordinary considering the discussion sections are both anonymous and non-binding. In fact, there is a rather strongly worded disclaimer in the Preamble to the Manual for Courts-Martial:

The Department of Defense, in conjunction with the Department of Homeland Security, has published supplementary materials to accompany the Manual for Courts-Martial. These materials consist of a Discussion (accompanying the Preamble, the Rules for Courts-Martial, and the Punitive Articles), an Analysis, and various appendices. These supplementary materials do not constitute the official views of the Department of Defense, the Department of Homeland Security, the Department of Justice, the military departments, the United States Court of Appeals for the Armed Forces, or any other authority of the Government of the United States, and they do not constitute rules. Cf., for example, 5 U.S.C.§ 551 (1982). The supplementary materials do not create rights or responsibilities that are binding on any person, party, or other entity (including any authority of the Government of the United States whether or not included in the definition of “agency” in 5 U.S.C. §551(1)). Failure to comply with matter set forth in the supplementary materials does not, of itself, constitute error, although these materials may refer to requirements in the rules set forth in the Executive Order or established by other legal authorities (for example, binding judicial precedents applicable to courts-martial) which are based on sources of authority independent of the supplementary materials. See Appendix 21 in this Manual.

MCM (2012), Part I, ¶ 4 (emphases added). So far as CAAF may have created any substantive rules in this case, those rules may have a very weak legal foundation.

Case Links:
• CGCCA opinion
• Appellant’s brief
• Appellee’s (Government) brief
• Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

17 Responses to “Opinion Analysis: United States v. Leahr, 14-0265/CG”

  1. Mikala says:

    I feel caaf got this case incorrect. 
    Should the appeal continue on to the Supreme Court?  Do you think they would even take the case?

  2. Saul Goodman says:

    Might as well take RCM 707 off the books.

  3. stewie says:

    How does this take RCM 707 off the books??

  4. Paper is expensive says:

    So if the supplementary material is not binding, why is it included? I would argue that it is binding, at a minimum, if the case at hand mimics the narrative within the supplementary material, then it must be binding. Why else would be included, particularly in light of this statement:
    “Executive Orders were removed from Appendix 25 of the
    Manual in 2012 to reduce printing requirements, they can be
     
    accessed online.”
     
    If the supplementary material is important enough to leave in, when the EOs are removed, they must be awfully important. Unless we are to believe the manual is drafted by unaffected and disinterested parties (which is not the case), then the supplementary material should be adhered to. Additionally, if one argues the material is there for explanatory purposes then the MCM does not satisfy the requirements or intent of Plain Language statutes, meaning it must be revised in accordance and until then puts all interpretations in question. And, if there for explanatory purposes then there are equivalencies among words and phrases – who makes that decision? By making it non-binding, it introduces confusion. 
     
    It is disingenuous for any agency or office to publish any document, for any reason, and to state the provisions do not create a cause of, or for action. That is utter nonsense. A suitable parallel is when a child closes her eyes and says the monsters are all gone now.
    If you’re a govt agency and you publish it and affix signatures, designations, and issue guidance, then there’s a cause of, and for, action. If individuals are held accountable for things submitted with signature, say a tax return for example, the govt agencies are no different because the accountability comes from testimonial affirmed by signature by the person with authority over the issuance of that document. 
     
    Such statements are nothing more than agency-issued ‘get out of jail free’ cards and in themselves violate the plain language requirements, and much more. 

  5. Saul Goodman says:

    The court let the government withdraw on a Friday over a long weekend and re-prefer (and ultimately re-refer) virtually identical charges for the sole purpose of adding a minor offense of “grabbing” an arm.  How can there be a rule-based right to a speedy trial if the government can simply withdraw, do whatever the need to do to try and win the case, and then get the clock to start again?  For example, what if the government realized they charged the wrong offense prior to trial for 1 spec of 10 specs?  Under this decision, even 6+ months after referral, the government can dismiss, leave all pretrial restraint in place, and re-prefer 9 of the original specs + the single changed spec and have the clock reset.  How does any of this ensure the accused a right to speedy trial if the government can manipulate charges to perfect its case at no cost?  When the government refers and arraigns, that is supposed to signal that it is ready for trial.
    Also, CAAF’s reliance on the discussion section for joinder is ridiculous.  That language WAS in the rules in the 1969 manual.  It was reduced to the discussion.  The accused’s ability to refuse joinder following arraignment – that is part of the RCMs.  Now, under this decision, if the accused refuses joinder, the government can dismiss and add it, effectively making a right that was given to an accused by POTUS meaningless.  Also note in this case the motion to sever was denied.

  6. Saul Goodman says:

    Should have said “dismiss” in line 3.

  7. Mikala says:

    Great responses and explanations. The question still remains, is this something that the Supreme Court would be willing to hear?
    The ape altered at this point has nothing to lose by filing to the Supreme Court. 

  8. Joinder by another name... says:

    Appellant –> “ape altered”
    Mikala, BZ on possibly the greatest military justice autocorrect of all time.

  9. stewie says:

    Saul,
     
    1. This was a defective spec. We aren’t talking about a deceptive attempt to stall 707 and speedy trial, we are talking about a defective spec (and quite frankly rank incompetence to miss the terminal element this long after Fosler).
     
    2. There was an additional charge that came up by all accounts at a late stage in the process.  Trying the charges together is preferred. Since the motion to sever was denied, defense apparently did not have a compelling reason to want two trials (other than a desire to win on the argument of 707).
     
    3. 707 specifically allows for the concept of dismissal stopping the clock. It’s literally in the rule. The only caveat is that you can’t dismiss solely to forestall/block speedy trial. There is zero evidence that’s what happened here. There are two legit reasons, reasons that are right in 707.  To believe that the government “manipulated” charges, you’d have to believe what? That they not only knew they were going to bring the second charge that late in the game, but purposefully left the first charge defective so they could dismiss and re-prefer to fix it?
     
    So, I don’t see how 707 is “off the books” by this decision when the very bases for the government dismissal being proper are in the rule itself. Perhaps your better argument is you don’t like those bases in the rule and would prefer a stricter version of it.

  10. Zachary D Spilman says:

    Well, Fosler was decided on August 8, 2011, and the charges in this case were dismissed on September 1, 2011, so I don’t think we can fault the trial counsel for not including a terminal element in the original specifications. I otherwise agree with Stewie.

    As for the comment by Paper is expensive about removal of the executive orders from the MCM, I think it makes perfect sense considering that the Manual itself is primarily a compendium of the executive orders. See, e.g., Part I of LTC Kennebeck’s three-part series on the JSC

    I don’t have any problem with the existence of non-binding commentary in the MCM, nor do I think there’s anything wrong with CAAF agreeing with the commentary or adopting it as an accurate interpretation of the underlying rule, statute, or caselaw. But I think the court put too much emphasis on the commentary in its decision in this case.

  11. stewie says:

    Ah, I didn’t pay attention to the dates, assumed this was a little closer in time to the present. Of course, that only more completely makes this legit…as they became aware of Fosler AFTER they’d already preferred the charges (because that’s when it was decided).
    I think dismissing and repreferring after a sea change in the law renders your previously legit spec deficient is a pretty understandable reason to do so.

  12. Saul Goodman says:

    Stewie/Zach:
    The issue isn’t really the Art 134 – I think everyone agrees that the government had to amend the specifications, and should have tried to amend the specifications that did not include the terminal element.  Was this a major or minor change?  Did it really require -dismissal/re-preferral/referral.  Did the accused object to the change necessitating the dismissal?  The case doesn’t say that.
    My issue is with the additional specification.  It looks as if the government was circumventing MRE 404(b) and RCM 602(e)(2).  The Accused’s right in RCM 602(e)(2) is essentially nullified.  Isn’t it an improper reason for dismissal to circumvent the right in RCM 602(e)(2)?  The government can withdraw, change, add charges all it wants so long as it hits its arraignment date (trial) before 120 days (and I won’t even get started about excludable delay).  After that, the Accused’s rights under RCM 602(e)(2) and 707, for it have any meaning, has to prevent dismissal with the intent to add a specification.  Otherwise, RCM 602(e)(2) offers little to no protection for the accused (becomes meaningless) and pemits the government to benefit by simply starting the process anew anytime it wants to change the playing field for trial. 
    I think Zach may be right – could the CA have withdrawn the charges, exlcuded the delay and amended the 134 specs and re-referred?  Fine.  But directing an Article 32 for “grabbing an arm” and sending that spec to a GCM, well that smells of impropriety.  To go through all of that effort for a battery that the Accused was ultimately acquitted on?

  13. Zachary D Spilman says:

    My memory of the oral argument is that the Defense exactly that point, Saul Goodman, about R.C.M. 602(e)(2), which includes the following: “After arraignment of the accused upon charges, no additional charges may be referred to the same trial without consent of the accused.” CAAF rejected it:

    In this case, the convening authority desired to join an additional charge, consonant with the preference for joinder of all known offenses at a single court-martial. R.C.M. 601(e)(2) Discussion. Because Appellant had been arraigned on the original charges, no such joinder was permissible, in the same trial, without his consent. R.C.M. 601(e)(2). While, as it turned out, the additional charge was ready for preferral five days later, this does not preclude withdrawing and dismissing the original charges absent an improper reason.

    Slip op. at 9 (emphasis in original). Obviously, joinder isn’t an improper reason. So it’s not improper to dismiss in order to circumvent 602(e)(2). And if the President wanted it to be, he could just amend the rule. 

    Now, this doesn’t make R.C.M. 707 totally toothless:

    When charges are dismissed, the R.C.M. contemplates that “[r]einstitution of charges requires the command to start over. The charges must be re-preferred, investigated, and referred . . . as though there were no previous charges or proceedings.”

    Slip op. at 13 (quoting Britton, 26 M.J. at 26). Starting over doesn’t implicate the regulatory speedy trial right under R.C.M. 707. But it does implicate the statutory (Article 10) and constitutional (Fifth/Sixth Amendment) speedy trial rights. And it raises collateral issues. Those just weren’t at issue in this case.

    As for the additional charge, if the Defense felt that it was an effort to circumvent M.R.E. 404’s prohibition on character evidence, I can only imagine that they requested and received a strongly-worded spillover instruction. And then there’s the acquittal.

  14. stewie says:

    Saul,
     
    1. Granted this is a guess, but given it was a month after Fosler was decided, I’m guessing the DC would have said no to amending the charge. I think adding an element is absolutely a major change. So it either required the accused to agree to it, or at the very least a withdrawal.
     
    2. If this were a case where there was a second charge the government intended to charge all along but, for some reason, sat on, simply to defeat the ability of the accused to have a speedy trial, that would be something.  However, there is no evidence of that here. Certainly none that appears to have been raised by appellant, and none recognized by the MJ or the Court.  All we have is that other misconduct came along (either because it happened later or came to the attention of the TC later) that didn’t reveal itself until late in the game.  Kind of hard to prefer something you don’t know exists.
     
    And yes, the CA could have simply waved a magic wand and said I’m excluding this time from the calculation. (All the more reason why 707 is really about one thing–intentional subterfuge of the right to speedy trial, not about fixing problems, new charges, or anything).
     
    To me, 707 is a pretty limited concept, it really boils down to either–the government takes really long from preferral to arraignment with literally no excuse, OR the government knows it’s going to blow the clock, so they dismiss and reprefer simply to avoid that eventuality. That’s it. Nothing more.  Neither case is present here.
     
    Article 10 protects the accused in trial with a somewhat more stringent standard IMO (although even then we know that winning an A10 motion really requires the government to try and mess up really hard).

  15. Dew_Process says:

    This is an excellent thread, but let me point out one salient historical fact.  Fosler was convicted in September 2009.  His lawyer did what many of us were doing then (challenging 134 Specs that failed to allege “terminal” elements), especially in light of U.S. v. Medina, 66 M.J. 21, 27 (CAAF 2008), in light of its language:
     

    “[I]n a contested case, a reviewing court must consider whether or not the prosecution proceeded on the premise or theory that the conduct alleged under clause 3 was also prejudicial to good order or service discrediting in order to affirm under clauses 1 or 2 in the event the clause 3 theory is invalidated.”
     

    This was – at least imho – especially so in light of Schmuck v. U.S., 489 U.S. 705, 718 (1989), and its adoption of the “elements” test.
     
    Thus, I must respectfully dissent from my learned colleague Zach and say that we can fault the TC for not adding the “terminal element(s)” here – if the DC in Fosler was astute enough to make that motion in 2009 (as were others), prudent pleading principles instructed that the Drafter should add the terminal elements – how could it harm the government’s case?

  16. stewie says:

    Well, in fairness to the TC, there was a whole park of trailers for Fosler, enough to give a tornado indigestion.  That suggests the TC in this case was in good company.

  17. Robert says:

    Would the analysis have been different if the post-arraignment withdrawal/dismissal had not been motivated by new misconduct and a defective specification?  What if the government withdrew/dismissed simply in order to change some of the specifications  because a new TC/COJ had a different approach to charging?