Last month the Coast Guard Court of Criminal Appeals issued a published opinion in United States v. Shannon, __ M.J. __, No. 1358 (C.G.C.C.A. April 12, 2013). The case involves two issues arising from pleas of guilty by the Appellant (an E-6), before a general court-martial composed of a military judge alone, to one specification of maltreatment, two specifications of assault, and one specification of wrongfully providing alcoholic beverages to a minor, in violation of Articles 93, 128, and 134, for which the Appellant was sentenced to reduction to E-3 and a bad-conduct discharge.
Judge Norris writes for a unanimous three-judge panel, rejecting the issues raised by the Appellant and affirming the findings and sentence. The issues are:
I. [Whether t]he Military Judge abused his discretion by not dismissing the charges against Appellant after finding unlawful command influence.
II. [Whether t]he Military Judge abused his discretion by not dismissing Appellant’s case with prejudice after granting Appellant’s motion to dismiss for violations of RCM 707(a).
The opinion makes pretty quick work of the first issue, which involves curative measures adopted by the trial judge to address some pretty egregious unlawful command influence by the Appellant’s officer-in-charge:
In this case, the incident that precipitated the charges against Appellant was his alleged rape of the girlfriend of one of his shipmates. Upon this accusation being made, Appellant was removed from his command, USCGC GREENBRIER, and was sent to another command. Over the next 13 months, the Officer-in-Charge (OIC) of GREENBRIER repeatedly referred to Appellant as “the rapist” in all manner of settings, including in front of the entire crew. This behavior was the basis for a motion to dismiss for unlawful command influence (UCI), which was litigated at an Article 39(a), UCMJ, session on 16 November 2010.
Shannon, slip op. at 2. The trial judge applied significant remedies short of dismissal, and Judge Norris finds them adequate, noting that they are “strikingly similar” to the remedies crafted by the trial judge and found adequate in United States v. Douglas, 68 M.J. 349, 354 (C.A.A.F. 2010). Slip op. at 4. Further, unlike Douglas (where CAAF found insufficient evidence in the record that the remedies were actually applied), Judge Norris finds that, “there is affirmative evidence in the record in the instant case that the remedies were carried out.” Slip op. at 6.
The second issue addresses the fact that this case was before two separate courts-martial, with the first court ending with a pretrial dismissal, without prejudice, due to a violation of the speedy trial provisions of Rule for Courts-Martial 707. The Appellant argues that the dismissal should have been with prejudice (meaning he could not be charged again). But:
From 27 May 2010, when the first judge dismissed the first charges without prejudice on R.C.M. 707 grounds, to 9 January 2012, when Appellant, on appeal, raised the issue of the character of dismissal of the first charges, the record is entirely devoid of evidence that Appellant took any action to challenge the nature of the dismissal.
Slip op. at 9. Like voting, speedy trial objections have to happen early and often, and Judge Norris notes that the Appellant did not raise the RCM 707 issue in the second (and ultimately final and reviewable) court-martial. “Appellant underwent two separate trials, and the appeals process for his second trial is not a proper forum in which to appeal rulings made in the first trial.” Slip op. at 9.
But Judge Norris also engages in a discussion about the Appellant’s claim that he entered a conditional plea, “which preserved any speedy trial issue, including the speedy trial issue under R.C.M. 707 from the first trial.” Slip op. at 11. Judge Norris reasons:
The military judge’s acknowledgment that the speedy trial issue was not waived related only to Appellant’s Constitutional speedy trial motion in the second trial, and did not encompass his R.C.M. 707 speedy trial motion from the first trial. This conclusion is warranted because (1) the only speedy trial motion that had been litigated before this judge was the Constitutional motion; the R.C.M. 707 speedy trial issue from the first trial had never been the subject of any substantive discussion at the second trial; (2) the judge’s initial advisement to Appellant was that, by his plea, he would waive five enumerated motions, including the Constitutional speedy trial motion from the second trial; the R.C.M. 707 speedy trial motion was not one of the enumerated motions; and (3) following the recess, when the military judge revised his advice to Appellant that he would be able to appeal the speedy trial issue, notwithstanding his guilty plea, his advisement was singular, i.e. his plea did not waive “the” speedy trial “motion.”
Unlike a denial of due process such as is envisioned by a Constitutional speedy trial motion citing Barker v. Wingo, a speedy trial issue under R.C.M. 707 can be waived. Hence Appellant’s guilty plea waived any issue regarding the character of the dismissal of the first charges. Even if Appellant’s plea could be considered a conditional plea, it is clear that preservation of the right to appeal the character of the dismissal of the first charges was not a condition upon which Appellant’s plea was made. Thus, on the general principle that a guilty plea waives any defects, as well as by reference to R.C.M. 707(e), Appellant waived his right to appeal that issue by his guilty plea.
Slip op. at 11 (citations omitted). Ultimately, by failing to litigate at the second court-martial the character of the dismissal from the first court-martial, the Appellant waived this issue.
There isn’t a whole lot of appellate litigation in the Coast Guard, so I think the odds are good that there will be a petition for review by CAAF. I don’t know enough about this case to say if such a petition is a good idea from a legal perspective, but from a practical perspective I have to recommend caution when appealing a ruling from someone named “Judge Norris” due to the potential for roundhouse kicks.