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to a general court-martial on 16 June 2011 in the case of United States v. AST2 Jaason M. Leahr, USCG, are hereby withdrawn and dismissed without prejudice.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.