Opinion Analysis: The substantial information rule has no role in United States v. Wilder, No.15-0087/MC
CAAF decided the Marine Corps case of United States v. Wilder, 75 M.J. 135, No.15-0087/MC (CAAFlog case page) (link to slip op.), on Monday, March 7, 2016. In a short and focused decision, CAAF finds no reason to apply an old, judicially-created speedy trial rule. Instead, the court applies the plain language of Rule for Courts-Martial (R.C.M. 707) to find no speedy trial violation in this case, affirming the decision of the Navy-Marine Corps CCA and the appellant’s convictions.
Judge Ryan writes for a unanimous court.
CAAF granted review of a single issue:
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).
The factual basis for the case is detailed in my argument preview, but it fades to the background of CAAF’s decision in which Judge Ryan gives a short dissertation on various speedy trial provisions applicable courts-martial and then makes quick work of the granted issue by holding that the plain language of the R.C.M. controls:
The narrow issue for decision in this case is whether, for purposes of a speedy trial violation alleged under R.C.M. 707, the time is calculated by reference to the specific triggers listed in R.C.M. 707(a) or by reference to some other standard such as the “substantial information” rule. Based on the plain language of R.C.M. 707, we do not hesitate to conclude that when analyzing a speedy trial violation under R.C.M. 707, it is the earliest of the actions listed in R.C.M. 707(a) with respect to a particular charge that starts the speedy trial clock for that charge. R.C.M. 707, promulgated in 1984, was a new and different layer of protection against speedy trial violations, see Kossman, 38 M.J. at 260, and for violations alleged under its rubric, its plain language controls. See United States v. Ruffin, 48 M.J. 211, 213 (C.A.A.F. 1998); United States v. Thompson, 46 M.J. 472, 475 (C.A.A.F. 1997).
There was no R.C.M. 707 violation in this case. With respect to the Additional Charges, because Appellant was not confined based on them, see supra note 5, the trigger dates from which to measure an alleged violation of R.C.M. 707 for the Additional Charges in this case are the dates of preferral. At most, 111 days passed between preferral and arraignment on Additional Charges I and II, and nineteen days between preferral and arraignment on Additional Charge III.
Slip op. at 6.
Judge Ryan’s opinion avoids an explicit declaration of whether the substantial information rule was abrogated by the promulgation of R.C.M. 707, but her analysis leaves little room for invocation of the rule in any case. The rule was created in 1974 to address situations where an accused was placed into pretrial confinement on some charges and then additional charges were added; it started the Article 10 speedy trial clock (distinct from the future R.C.M. 707 speedy trial clock) for the additional charges on the date when the Government had substantial information to prefer them (and not on the generally later date of actual preferral). Judge Ryan’s opinion only just alludes to the possibility that substantial information (and not actual preferral of charges) might implicate Article 10 for an accused already in pretrial confinement on other offenses:
“The fact that a prosecution meets the 120-day rule of R.C.M. 707 does not directly ‘or indirectly’ demonstrate that the Government moved to trial with reasonable diligence as required by Article 10.” Mizgala, 61 M.J. at 128. Similarly, the government might move with all reasonable diligence for purposes of Article 10, UCMJ, but nonetheless violate the bright-line 120-day rule of R.C.M. 707. See Kossman, 38 M.J. at 261.
Slip op. at 5. So a future case could possibly give CAAF a reason to revisit this old rule. But it plays no role in CAAF’s decision in this case.
• 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
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis