Opinion Analysis: The dismissal (based on the alleged victim’s unwillingness to participate in the prosecution) was not a subterfuge, and so there was no speedy trial violation, in United States v. Hendrix
CAAF decided the interlocutory Army case of United States v. Hendrix, __ M.J. __, No. 18-0133/AR (CAAFlog case page) (link to slip op.), on Tuesday, June 19, 2018. Rejecting the military judge’s conclusion that a dismissal of charges (followed shortly by a re-preferral) was a subterfuge to avoid the regulatory (R.C.M. 707) speedy trial right, CAAF finds no speedy trial violation and reverses the military judge’s decision that dismissed the charges with prejudice, affirming the decision of the Army CCA.
Judge Sparks writes for a unanimous court.
The accused, Private (E-2) Hendrix, was charged on November 29, 2016, with two specifications of sexual assault. The alleged victim declined to participate in any prosecution, and the convening authority dismissed the charges. But then – three days later – the alleged victim changed her mind and the charges were re-preferred one day after that. Hendrix was then arraigned on June 8, 2017; 156 days after the first preferral.
That arraignment exceeded the 120-day deadline in R.C.M. 707. Hendrix moved to dismiss, and the military judge granted the motion and dismissed the specification with prejudice after concluding that the convening authority’s dismissal of the original charges was a subterfuge. But the prosecution appealed and the Army CCA reversed, concluding that the dismissal was not a subterfuge because it was based on the alleged victim’s unwillingness-turned-willingness to participate. CAAF then granted review to determine:
Whether the military judge abused his discretion by dismissing the charge and specifications with prejudice for a violation of R.C.M. 707.
He did, explains Judge Sparks, because “dismissal and repreferral are fully permissible under the provisions of R.C.M. 707.” Slip op. at 5. As for the alleged victim’s vacillating willingness to participate, the court finds that this actually supported the convening authority’s action, because “the fact that the complaining witness changed her mind about testifying dramatically changed the strength of the Government’s case.” Slip op. at 6.
Judge Sparks begins the court’s analysis with a citation to United States v. Leahr, 73 M.J. 364 (C.A.A.F. 2014) (CAAFlog case page), where a divided CAAF found that the appellant’s regulatory speedy trial right was not violated because the charges were dismissed and re-preferred, resetting the 120-day speedy trial clock:
To determine whether Appellant’s R.C.M. 707 rights were violated by the convening authority’s dismissal and repreferral, we apply the legal standard from Leahr, 73 M.J. at 369. “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.” Id. Leahr elaborates on our statement in United States v. Tippit that “[o]nce charges are dismissed, absent a subterfuge, the speedy-trial clock is restarted.” 65 M.J. 69, 79 (C.A.A.F. 2007) (alteration in original) (citing United States v. Anderson, 50 M.J. 447, 448 (C.A.A.F. 1999)). In Leahr, we defined a proper reason (in the context of a discussion of R.C.M. 604 which governs withdrawal of charges from court-martial) as “a legitimate command reason which does not ‘unfairly prejudice’ an accused.” 73 M.J. at 369 (internal quotation marks omitted) (citation omitted).
Slip op. at 5.
Then Judge Sparks reviews the facts, concluding that “without [the alleged victim’s] cooperation, the Government had no intention of prosecuting the case,” slip op. at 5-6, and that “her lack of participation was the driving reason behind the Government’s dismissal and that the Government’s repreferral of the charges was consistent with [her] decision to finally testify.” Slip op. at 6.
A footnote dismisses concerns (raised by Hendrix’s appellate defense counsel) that, in light of the alleged victim’s initial unwillingness to participate, the charges themselves were a subterfuge to provoke Hendrix to request administrative separation in lieu of trial by court-martial (and the associated undesirable characterization of discharge). CAAF finds that “Appellant’s reasoning is based entirely on supposition and does not factor into this Court’s examination of the granted issue.” Slip op. at 6 n.4.
Additionally, the court rejects the notion that it was improper for the convening authority to consider the alleged victim’s preference:
Both the SJA and Government counsel iterated that the decision to dismiss the charges was prompted by Dep’t of Defense, Instr. 6495.02, Sexual Assault Prevention and Response (SAPR) Program Procedures (Mar. 28, 2013) [hereinafter DoDI 6495.02]. The Instruction reads, in relevant part, that:
[T]he victim’s decision to decline to participate in an investigation or prosecution should be honored by all personnel charged with the investigation and prosecution of sexual assault cases …. If at any time the victim who originally chose the Unrestricted Reporting option declines to participate in an investigation or prosecution, that decision should be honored.
DoDI 6495.02 Encl. 4, para. 1(c)(1). Though adherence to this Instruction does not impact the legality — or lack thereof — of the Government’s actions, we will note that dismissal further along in the process, when Private EW clarified she did not want to participate, was in line with DoDI 6495.02 as was the subsequent repreferral when Private EW changed her mind.
Slip op. at 7. Put differently, consideration of an alleged victim’s preferences is a valid basis to move forward – or not – with a particular prosecution. That’s an unsurprising conclusion.
CAAF simply doesn’t see the circumstances presented by this case as particularly unusual, but Judge Sparks warns that the court’s decision is limited to the particular facts of this case:
while we conclude that dismissal and repreferral under these circumstances is appropriate, we need not decide in this case whether or when multiple dismissals might be deemed improper.
Slip op. at 7.
• ACCA opinion
• Blog post: CAAF grants review
• Appellant’s brief (supplement to the petition for review)
• Appellee’s (Army Gov’t App. Div.) brief (answer to the supplement)
• Appellant’s reply brief (reply to the answer to the supplement)
• Blog post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis