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.

In United States v. Burton, 44 C.M.R. 166 (1971) – prior to the promulgation of the regulatory speedy trial right in R.C.M. 707 – the Court of Military Appeals established a presumptive rule that the statutory speedy trial right in Article 10 is violated when pretrial confinement exceeds three months. Subsequently, President Reagan promulgated R.C.M. 707 in 1984 (with a 90-day clock) and President Bush modified the rule to the current 120-day standard in 1991. The presumptive rule from Burton was then abandoned in United States v. Kossman because “the landscape of speedy trial has changed dramatically . . . and the President has acted responsibly in an area in which he has clear authority.” 38 M.J. 258, 261 (C.M.A. 1993).

However, before the Burton rule was abandoned, Johnson applied it where an accused was placed into pretrial confinement for some offenses and then additional offenses were discovered. Johnson held that when this occurs, the three-month clock for the additional offenses is deemed to begin at the moment “the Government had in its possession substantial information on which to base the preference of charges.” 48 C.M.R. at 601. Johnson was a case about the statutory (Article 10) speedy trial right decided at a time when the regulatory (R.C.M. 707) right didn’t yet exist. Moreover, the substantial information rule was not incorporated into R.C.M. 707 when it was promulgated. Rather, as first 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.

And 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.

The multiple charges against the appellant in Wilder can be broken into two groups. The early charges (preferred on December 4, 2012) and the later charges (preferred on April 16 and July 17, 2013). For the early charges, the regulatory speedy trial clock began when the appellant was placed into pretrial confinement. See R.C.M. 701(a)(2). For the later charges it began when those charges were preferred. See R.C.M. 701(a)(1). Of note, the clock for the later charges would start earlier if the matters alleged in them were part of the basis for the appellant’s pretrial confinement, but that does not appear to be supported by the record (though perhaps it would be supported had the appellant litigated the issue rather than withdrawing his motion in favor of the pretrial agreement).

However, the appellant asserts that the regulatory (R.C.M. 707) speedy trial clock for the later charges should start earlier because of the substantial information rule.

The NMCCA rejected this argument, holding that “Kossman voids the Johnson rule as well,” and that “R.C.M. 707(a)(1) establishes the commencement of the speedy trial clock for the additional charges as the dates of preferral.” Wilder, slip op. at 6. Notably, the AFCCA reached a similar conclusion in United States v. Proctor, 58 M.J. 792, 797 (A.F. Ct. Crim. App 2003). But cfUnited States v. Bray, 52 M.J. 659, 661 (A.F. Ct. Crim. App. 2000) (“We hold that, when an accused is placed in pretrial confinement as a result of a particular incident, the speedy-trial clock begins to run for all offenses that the prosecution knows, or reasonably should know, were part of that incident.”). However, the Coast Guard held otherwise – and applied the substantial information standard – in Cooley (CAAFlog case page). And the Army court applied the substantial information standard in United States v. Boden, 21 M.J. 916, 917-18 (A.C.M.R. 1986).

Yet the NMCCA also separately rejected the appellant’s statutory (Article 10) and constitutional (Sixth Amendment) speedy trial claims, finding that “pretrial confinement triggers Article 10 only to those charges upon which pretrial confinement was ordered,” slip op. at 6, and that “the appellant was not subjected to pretrial restraint on the additional charges, thus his Sixth Amendment speedy trial right also began on the date of preferral,” slip op. at 7. Those conclusions do not seem to be at issue before CAAF, making CAAF’s grant of review very confusing.

The statutory and regulatory speedy trial rights in Article 10 and R.C.M. 707 are discreet provisions. The Johnson rule applied to Article 10 and was announced a decade before R.C.M. 707 was promulgated. After R.C.M. 707 was promulgated, Article 10 jurisprudence changed dramatically and much of the old law was abandoned in recognition of the protections provided by the regulatory right. But the appellant in Wilder seemingly wants to squeeze the Article 10-shaped substantial information rule through a R.C.M. 707-sized hole. This is highlighted in the Government’s brief.

However, the appellant’s brief asserts that “a literal interpretation of R.C.M. 707 creates an absurdity.” App. Br. at 9. Unfortunately, this assertion is bald. The brief simply does not explain how it is an absurd result for a regulatory speedy trial right (that is separate from constitutional and staturoy rights) to be limited consistent with the plain language of R.C.M. 707. Perhaps oral argument will bring clarity.

The appellant does claim that the Government might exploit R.C.M. by “promptly charge[ing] an accused only with charges sufficient for confinement, then piling on more charges later with a new clock regardless of when the government had the information on which the new charges were based.” App. Br. at 7. However, the Government’s brief explains how Article 10 prevents this type of abusive charging:

Article 10 and its separate body of caselaw still protects an accused from the kind of dubious practices Appellant suggests the Government might engage in should this Court apply R.C.M. 707 in accordance with its plain text. It is important to remember that Appellant’s trial motion alleged separate violations of R.C.M. 707, Article 10, and the Sixth Amendment. (J.A. at 75.) Likewise, the lower court separately analyzed Appellant’s Article 10 claim and found no violation. (J.A. at 6.) Appellant’s proposed scenario would not come to pass due to Article 10 and did not come to pass in this case due to the facts and circumstances here. Far from an absurd result, in this case applying R.C.M. 707(a) as written led to a correct result.

Gov’t Br. at 21.

Ultimately, it’s a little hard to understand why CAAF granted review of this issue in this case. A better issue would question whether the substantial information rule triggers Article 10 for all of the charges in the appellant’s case, contrary to the CCA’s holding that “pretrial confinement triggers Article 10 only to those charges upon which pretrial confinement was ordered.” Slip op. at 6.

But even that would be unlikely to win this appellant relief because of his agreement to withdraw his speedy trial motion in exchange for a pretrial agreement. Even though that term of the agreement was void, it undercuts any argument for prejudice. That likely explains why the appellant is trying to squeeze the Article 10-shaped substantial information rule through a R.C.M. 707-sized hole. I think that CAAF, however, is unlikely to help him.

Case Links:
NMCCA opinion
• Blog post: Two interesting speedy trial decisions from the NMCCA
• Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

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