CAAF will hear the first oral argument of the September 2015 Term in the certified Coast Guard Case of United States v. Cooley, No.s 15-0384/CG & 15-0387/CG (CAAFlog case page), on Tuesday, October 6, 2015, at 9:30 a.m. CAAF will review the decision of the Coast Guard CCA that reversed the appellee’s conditional pleas of guilty and dismissed the charges (some with prejudice) after the CCA found a violation of the Article 10 statutory speedy trial right, with the following issues:
I. Whether the Coast Guard Court of Criminal Appeals erred by finding that pre-trial confinement can serve as per se prejudice for purposes of determining a violation of Article 10, Uniform Code of Military Justice.
II. Whether the facts and circumstances or Appelle’s case, considering the factors set out in Barker v. Wingo, 407 U.S. 514, 530 (1972) and applied to review of Article 10 by United States v. Birge, 52 M.J. 209, 212 (C.A.A.F. 1999), amount to a violation of Article 10, Uniform Code of Military Justice.
Whether the government violated Appellant’s rights under Article 10, UCMJ, when the Government possessed key evidence against Appellant on July 20, 2012 and Feberuary 5, 2013, yet made no move to prosecute Appellant for these offenses until June of 2013, despite his pretrial confinement from December 20, 2012.
Pursuant to a pretrial agreement the appellee conditionally pleaded guilty, at a general court-martial composed of a military judge alone, to one specification of attempting a lewd act with a child of more than 12 years but less than 16 years, two specifications of attempting to wrongfully commit indecent conduct, one specification of failing to obey an order, and one specification of wrongfully and knowingly possessing apparent child pornography, in violation of Articles 80, 92, and 134. He was sentenced to confinement for seven years, total forfeitures, reduction to E-1, and a bad-conduct discharge. In accordance with the pretrial agreement the convening authority suspended all confinement in excess of 50 months.
The conditional pleas reserved the appellee’s right to appeal the question of whether he was denied his right to a speedy trial. These pleas were entered in October, 2013 – the year that we declared the death of Article 10. However, in late 2014 the Coast Guard CCA found a violation of the appellee’s Article 10 right to a speedy trial, and it dismissed the charges. I analyzed the CCA’s decision in this post, titled The Coast Guard CCA raises Article 10 from the dead, but in which I expressed skepticism about the CCA’s conclusion.
Specifically, in my post I noted that Article 10 issues are evaluated using the four-factor framework from Barker v. Wingo, 407 U.S. 514, 530 (1972): “(1) the length of the delay; (2) the reasons for the delay; (3) whether the appellant made a demand for a speedy trial; and (4) prejudice to the appellant.” United States v. Wilson, 72 M.J. 347, 351 (C.A.A.F. 2013) (CAAFlog case page) (citations omitted). The prejudice prong is often the most difficult for an individual asserting a violation of Article 10, and it is the prejudice prong that is at issue in Cooley because the Coast Guard CCA explicitly held that “pretrial confinement is prejudice no matter how solidly based.” United States v. Cooley, No. 1389, slip op. at 9 (C. G. Ct. Crim. App. Dec. 24, 2014) (link to slip op.).
The CCA cited (and I found) no precedent to support the conclusion that pretrial confinement is per se prejudicial, and the Judge Advocate General of the Coast Guard certified the case to CAAF asking that question and a separate question of whether the CCA properly applied the Barker factors in general. CAAF subsequently granted review of a third issue involving Article 10 that is similar to the issue presented in another case that will be argued on the same day, United States v. Wilder, No. 15-0087/MC (CAAFlog case page).
The case is a complicated way to start the term, with a total of six briefs from the parties: For the certified issues there is a Government brief, the appellee’s answer, and a Government reply brief; for the granted issues there is the appellee’s brief, a Government answer, and the appellee’s reply. Further, these arguments address a complex record.
In July 2012, the appellee in Cooley confessed to soliciting sexually explicit photographs from minor children. He was initially placed into pretrial confinement, but was quickly released. He was then then subjected to a series of gradually-decreasing pretrial restraints, until he was eventually ordered back into pretrial confinement on December 20, 2012, where he remained until his guilty plea on October 4, 2013. Many things happened in the 289 days between his return to pretrial confinement as his guilty pleas: charges were dismissed without prejudice for violation of the regulatory speedy trial RCM 707, new charges were added, and two Article 32 pretrial investigations were conducted.
This creates a complicated case history from which I draw the following important dates:
- July 21, 2012: The appellee was placed into pretrial confinement.
- July 28, 2012: The appellee was released from pretrial confinement.
- December 20, 2012: The appellee was again placed into pretrial confinement.
- February 29, 2013: Charges were preferred.
- March 6, 2013: First Article 32 investigation.
- April 3, 2013: The appellee was served with the charges and arraigned over his objection.
- May 23, 2013: A new military judge ruled that the April 3 arraignment was a nullity due to violation of the Article 35 5-day waiting period and dismissed the charges without prejudice for violation of the 120-day time limit of RCM 707.
- May 23, 2013: Original charges were re-preferred.
- June 14, 2013: Charges were dismissed.
- June 14, 2013: Original charges preferred for third time, along with two new specifications.
- July 22, 2013: Second Article 32 investigation.
- September 10, 2013: The appellee was arraigned, military judge denied motion to dismiss on speedy trial grounds.
- October 4, 2013: The appellant entered conditional pleas of guilty.
Aside from the arraignment issue, a number of months of delay are attributable to the Government’s desire to join all known charges for one court-martial. Yet the two new specifications preferred in June 2013 were not entirely based on new information or new misconduct. Rather, one of them (alleging wrongful possession of child pornography) was based on information known to the Government before the first preferral of charges. That information included forensic evidence of possession of child pornography and a confession by the appellee. App. Br. on Granted Issue at 5.
The Coast Guard CCA found violations of the Article 10 speedy trial right only with respect to the original charges. For the final two specifications, the CCA found only a violation of the. R.C.M. 707 regulatory speedy trial right. Accordingly, the CCA dismissed the original charges with prejudice, but the last two specification without prejudice. The appellee petitioned CAAF for review (which was granted), asserting the existence of an Article 10 violation with respect to the last two specifications based upon the substantial information rule.
On the certified issues, the Government’s briefs make a broad challenge to the CCA’s finding of an Article 10 violation. However, two matters appeal to be the most significant: The reason for the delay and the existence of prejudice.
The Government’s brief on the certified issues casts the reason for the delay as “an attempt by the United States to bring all of FA Cooley’s crimes to the same trial as the CGIS investigation unfolded.” Gov’t Br. on Cert. Issues at 29. However, the brief describes a situation where the Government was trying to discover new offenses, no merely join known offenses:
Given the modus operandi of FA Cooley, it was unknown whether some of images found of his possession were images of children that FA Cooley had asked the children to send him, or if the images were of children unknown to FA Cooley, obtained through another means. (JA at 515). In other words, the modus operandi suggested that FA Cooley could have been guilty of producing child pornography, in addition to his other crimes. Therefore, as this case and investigation progressed, it became clear that FA Cooley’s confession would not suffice to try him for all the crimes he may have committed against many possible victims.
Gov’t Br. on Cert. Issues at 29. There are a number of problems with the Government’s argument on this point. First, the Government wrongly equates modus operandi (“method of operation”) with criminal propensity. Modus operandi is a form of identification, not an indicator of criminal propensity. It is a “distinctive technique employed by the accused,” United States v. Rappaport, 22 M.J. 445, 446 (C.M.A. 1986), that is “like a signature,” United States v. Gamble, 27 M.J. 298, 305 (C.M.A. 1988), and is used to link multiple acts to the same person. It is not a reason to postpone a trial to investigate possible new offenses.
But more importantly, the Government’s reply brief acknowledges that investigating possible new offenses was precisely the reason for the delay:
This additional criminal misconduct could have detrimental consequences to the victims and the United States had the right, if not the duty, to pursue a more thorough investigation. Instead, FA Cooley argues that if the government could bring forward a single formal charge, it should be required to proceed immediately to trial, regardless of how many victims may be unaccounted for by the accused’s actions in the same overall course of criminal misconduct. In this case, the United States was not pursuing a lengthy separate investigation into unrelated misconduct. For example, the government was not investigating whether FA Cooley had committed housing fraud given some initial evidence of child pornography. The government was investigating the extent and nature of FA Cooley’s sexual communications with children and his possession of child pornography.
Gov’t Reply Br. on Cert. Issues at 7. The Government had probable cause to believe that the appellee committed certain specific offenses (leading to his pretrial confinement). Article 10 requires that the Government pursue prosecution of those specific offenses:
When any person subject to this chapter is placed in arrest or confinement prior to trial, immediate steps shall be taken to inform him of the specific wrong of which he is accused and to try him or to dismiss the charges and release him.
Article 10, UCMJ (emphasis added). Delaying trial to discover and join additional offenses might by judicially expedient, but it does not override an accused’s right to a speedy trial on the known offenses.
On the existence of prejudice, the appellee’s brief on the certified issues does not rely on the CCA’s conclusion that the pretrial confinement was per se prejudicial. Rather, the appellee offers proof of extrinsic prejudice:
Cooley was prejudiced by the unreasonable delay in this case. He languished in oppressive pretrial confinement where he was sexually assaulted by another inmate. His report of the assault was ignored, as were his medical needs, by a command that neglected its duty to visit him on a weekly basis. Further, his defense was impaired by this delay as it prevented him from receiving adequate assistance from a court-mandated defense expert or consulting with his defense counsel.
App. Br. on Cert. Issues at 20-21. However, this argument is rather weak. The Government strongly disputes the appellee’s account of an un-investigated assault:
During this second period of pre-trial confinement, FA Cooley’s buttocks were touched by another prisoner. This incident of abusive sexual contact was immediately investigated by the Brig, followed by a United States Marine Corps Criminal Investigation Division (USMC CID) investigation – all of which led to the preferral of charges against the assailant.
Gov’t Reply Br. on Cert. Issues at 9 (emphasis in original). The Government also disputes (for the obvious reasons) the appellee’s argument that delay prevented him from obtaining assistance from his expert and his counsel.
The granted issue addressed only the two specifications dismissed without prejudice because they were not charged until June 14, 2013. Those specifications alleged sending a letter to a child in violation of an order, and possession of child pornography. While the CCA acted on both, the convening authority dismissed the orders violation offense pursuant to the pretrial agreement, so it is not before CAAF, leaving only the child pornography offense.
The appellee asserts that the Government was required to charge that offense earlier than it did because the appellee was already in pretrial confinement and the Government had sufficient information to bring the charge. This argument is based on the substantial information test :
In United States v. Johnson, 23 C.M.A. 91, (C.M.A. 1974), the Court of Military Appeals (CMA) grappled with calculating delay for Article 10, UCMJ, purposes when the Government preferred additional charges against an accused already in pretrial confinement on other charges. The CMA determined that the Government’s accountability for the additional charges commenced “when the Government had in its possession substantial information on which to base the preference of charges,” not the date of preferral of the additional charges. Id. at 93.
App. Br. on Granted Issues at 9. The regulatory speedy trial right in R.C.M. 707 was created by the President in 1984, potentially eliminating the substantial information test by providing a more formal mechanism for calculating delay. As originally defined in the 1984 MCM, R.C.M. 707(b)(4) read:
Multiple charges. When charges are preferred at different times, the inception for each shall be determined from the date on which the accused was notified of preferral or on which restraint was imposed on the basis of that offense.
Today, R.C.M. 707(b)(2) reads:
Multiple Charges. When charges are preferred at different times, accountability for each charge shall be determined from the appropriate date under subsection (a) of this rule for that charge.
CAAF has never addressed whether these regulatory rules override the judicially-created substantial information test.
I believe that the appellee faces a steep uphill battle at CAAF next week. Even though the Government’s arguments for the reasons for the delay in this case are weak, the appellee’s arguments for prejudice are weaker. Moreover, the CCA’s primary finding at issue – that pretrial confinement is per se prejudicial – is weakest of all. Finally, the President’s rulemaking in R.C.M. 707 (pursuant to his Article 36 authority to prescribe rules) provides a strong base to abandon the substantial information test, while the appellee does not offer much in the way of reasons to keep it.
One factual issue likely to burden the appellee’s counsel during oral argument is the fact that when he was placed into pretrial confinement for the second time, the appellee waived his right to a R.C.M. 305 review of the necessity of that confinement. Gov’t. Br. on Cert. Issues at 12. While release was probably unlikely for the appellee at that time, the review would have developed a record as to the reasons for his confinement. If those reasons included matters that supported the child pornography charge, then that would bolster the appellee’s argument that the child pornography charge should have been brought earlier. But without such a record, the appellee seems to be merely speculating about the status of the Government’s investigation.
• CGCCA opinion
• Blog post: The Coast Guard CCA raises Article 10 from the dead
• Blog post: The Coast Guard certifies Cooley
• Blog post: AAF rejects expedited review in Cooley
• Blog post: Cooley pursues habeas
• Government brief on certified issues
• Appellee’s brief on certified issues
• Government’s reply brief
• Appellee’s brief on granted issue
• Government brief on granted issue
• Appellee’s reply brief
• Blog post: Argument preview