CAAFlog » October 2017 Term » United States v. Hendrix

Audio of this week’s oral arguments at CAAF is available at the following links:

United States v. Hendrix, No. 18-0133/AR (CAAFlog case page): Oral argument audio.

United States v. Christensen, No. No. 17-0604/AR (CAAFlog case page): Oral argument audio.

CAAF will hear oral argument in the interlocutory Army case of United States v. Hendrix, No. 18-0133/AR (CAAFlog case page), on Tuesday, May 1, 2018, at 9:30 a.m. The court 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.

“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. This case involves the regulatory, R.C.M. 707, speedy trial right.

The accused, Private (E-2) Hendrix, was charged with two specifications of sexual assault on November 29, 2016. 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 agreed to consider the case.

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“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.

On Monday CAAF granted review of an Army prosecution appeal under Article 62 involving the regulatory, R.C.M. 707, speedy trial right:

No. 18-0133/AR. U.S. v. James B. Hendrix. CCA 20170439. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY DISMISSING THE CHARGE AND SPECIFICATIONS WITH PREJUDICE FOR A VIOLATION OF R.C.M. 707.

Pursuant to Rule 19(a)(7)(A), no further pleadings will be filed.

The Army CCA’s opinion is probably posted on the CCA’s website, but the website is inaccessible from the public internet (discussed here). The opinion is, however, available on Lexis at: United States v. Hendrix, 2017 CCA LEXIS 769 (A Ct. Crim. App. Dec. 14, 2017) (Lexis erroneously identifies this as an Air Force CCA case).

The accused, Private (E-2) Hendrix, was charged with two specifications of sexual assault on November 29, 2016. 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. Hendrix was then arraigned on June 8, 2017; 156 days after the first preferral.

Read more »