The NMCCA recently denied relief in two cases involving assertions of speedy trial violations.
In United States v. Spratling, No. 201400060 (N-M. Ct. Crim. App. Jul. 31, 2014) (link to slip op.), the CCA rejected the appellant’s argument that the Government’s preferral of replacement charges was a subterfuge to deprive him of a speedy trial. The appellant was charged with an indecent act in violation of Article 120 (2006), receipt of child pornography in violation of Article 134, and an indecent act in violation of Article 134. The allegations were all based on the appellant’s interactions with KS, a minor.
The charges were preferred in January 2013, and an Article 32 pretrial investigation was conducted. After the 32, “the Government preferred substantially the same charges” in March, and those charges were referred to trial by general court-martial. Slip op. at 2. The Defense then successfully moved to dismiss the Article 120 offense as an unreasonable multiplication of charges, leaving only the child pornography and indecent act specifications under Article 134. In response, the Government preferred two new charges in June alleging an indecent act in violation of Article 120 and receipt of child pornography in violation of Article 134. These charges were referred to the same general court-martial, and the remaining charges preferred in March were dismissed. This action had the effect of both reinstating the dismissed Article 120 charge and resetting the speedy trial clock.
The appellant was then convicted of both the 120 and 134 offenses, contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, and sentenced to confinement for 60 days and a bad-conduct discharge. Before trial the appellant moved to dismiss the charges for violation of his right to a speedy trial, but the military judge denied the motion. The judge “specifically ruled that the trial counsel’s dismissal on 9 July 2013 of the child pornography charge at the direction of the CA, was neither improper nor a subterfuge.” Slip op. at 4.
The appellant renewed this claim on appeal (personally, as a Grostefon matter), but the CCA denied relief by agreeing with the trial judge’s ruling. However, the CCA merely summarily accepts the judge’s conclusion regarding the re-preferral, casting it as a finding of fact that is “clearly supported by the record.” Slip op. at 4. The CCA does not actually discuss the reason why the charges were re-preferred (and it’s not particularly clear why the Government did this, except to usurp the judge’s unreasonable multiplication ruling). Nor does the CCA discuss whether the appellant demanded a new Article 32 each time new charges were preferred, as was his right. See, e.g., United States v. Leahr, 14-0265/CG, 73 M.J. 364 (C.A.A.F. Jul. 25, 2014) (CAAFlog case page). See also Article 32(c).
But things are even wilder in United States v. Wilder, No. 201400118 (N-M. Ct. Crim. App. Aug. 12, 2014) (link to slip op.), where the appellant pleaded guilty pursuant to a pretrial agreement that required him “to withdraw his motion to dismiss for a violation of his right to a speedy trial.” Slip op. at 2. The Government “concedes that the condition was impermissible,” but argued that the appellant waived the issue by his unconditional plea of guilty. Id. But in addition to the unconditional plea, the CCA notes that:
In an exhibit entitled, “Sentencing Memo (Continuation of Lance Corporal Wilder’s unsworn statement through counsel),” the civilian defense counsel argued: “The conviction will stick. There were motions pending and waived by this plea that could have resulted in charges being dismissed, perhaps with prejudice. Even if the motions were denied, there would be appellate issues that would have kept this case active for years, perhaps resulting in a retrial. Pleading guilty removed the real possibility charges would be dismissed and removed realistic appellate issues.” Defense Exhibit B at 1.
Slip op. at 4 n.4 (emphasis in original). Despite this, the CCA finds that the appellant did not waive the speedy trial issue, and that he has made a “prima facie showing or a colorable claim that he is entitled to relief.” Slip op. at 5 (quoting United States v. McLaughlin, 50 M.J. 217, 219 (C.A.A.F. 1999)). The CCA then analyzes the issue, beginning with the fact that the appellant was in pretrial confinement for only some, and not all, of the charges, and that he was arraigned twice (initially objecting to joinder).
Separating the earlier charges (arraigned first) from the later charges (arraigned second), the CCA concludes that there was no speedy trial violation under R.C.M. 707, Article 10, or the Sixth Amendment. This conclusion is made possible by the fact that the CCA “hold[s] 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.