CAAF decided the Coast Guard case of  United States v. Leahr, 14-0265/CG, 73 M.J. 364 (CAAFlog case page) (link to slip op.), on Friday, July 25, 2014. A divided court finds that Appellant’s regulatory speedy trial right was not violated in this case because the charges were dismissed and re-preferred, resetting the 120-day speedy trial clock. Additionally, the court finds no improper reason behind the dismissal. The court also rejects – in a brief footnote – a challenge to the impartiality of the military judge. CAAF affirms Appellant’s convictions and the decision of the Coast Guard CCA.

Judge Ryan writes for the court, joined by Chief Judge Baker and Judge Ohlson. Judge Stucky dissents, joined by Judge Erdmann.

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of one specification of larceny, four specifications of assault consummated by a battery, and two specifications of wrongfully communicating a threat, in violation of Articles 121, 128, and 134. He was acquitted of additional allegations of assault, as well as allegations of burglary and kidnapping. The members sentenced Appellant to confinement for three months, reduction to E-1, and a bad-conduct discharge.

Appellant’s brief to CAAF explained that the charges involved two alleged victims. Most of the charges alleged offenses against Appellant’s fiancee (BM), but one of the assault specifications involved another Coast Guard member (LS). The allegation involving LS wasn’t discovered by the Government until after the Article 32 investigation was complete and Appellant was arraigned on the other charges. The allegation was otherwise unrelated to the case and involved events that occurred a year prior (and Appellant was ultimately acquitted of that offense). But,

 Based on this new allegation, on September 1, 2011, the convening authority signed a document titled, “Withdrawal and Dismissal of Charges Against Appellant],” which stated:

The charges and specifications referred to a general court-martial on 16 June 2011 in the case of United States v. AST2 Jaason M. Leahr, USCG, are hereby withdrawn and dismissed without prejudice. . . . In anticipation of the possibility that this new allegation will cause [Appellant] to become the subject of a newly preferred additional charge which would warrant referral to a court-martial, I desire that the accused to be [sic] tried on all charges at a single trial to best serve the interests of justice and promote judicial economy.

Slip op. at 4. Five days later the original charges were re-preferred, with two changes. The first change was an addition of terminal element language to the Article 134 specifications (it was omitted from the first charge sheet). The second change was the addition of a specification of assault consummated by a battery involving LS. A second Article 32 investigation was conducted, but it only considered the new specification. The charges were then referred to another general court-martial, and Appellant moved to dismiss for improper referral and violation of his regulatory speedy trial right under Rule for Courts-Martial 707. “The military judge denied both motions finding, among other things, that the withdrawal and dismissal of the original charges was valid and for a proper reason.” Slip op. at 5-6. The CCA affirmed, “relying on the fact that the convening authority dismissed the original charges,” and “that the reason for withdrawal and re-referral was greater judicial and cost efficiencies.” Slip op. at 6 (marks and citations omitted).

CAAF then granted review of three issues:

I. Whether the military judge erred in denying the defense motion to dismiss for violation of appellant’s right to speedy trial under RCM 707.

II. Whether the government’s withdrawal of charges and re-referral to another court-martial was in violation of RCM 604(b) because they were previously withdrawn for an improper reason.

III. Whether appellant was denied a fair trial when the military judge twice suggested in front of the members that appellant was guilty, first by “thanking” a witness for his efforts to protect the victim, and then by asking defense counsel before findings whether a witness would be subject to recall as a “sentencing witness.”

Judge Ryan frames the first (and main) issue as a question of fact:

In this case, if the convening authority dismissed the original charges on September 1, 2011, the dismissal reset the speedy trial clock and no violation under R.C.M. 707 occurred. If, however, his action amounted to a withdrawal only, the speedy trial clock was not reset and the 190-day period between the initial preferral on March 1, 2011, and arraignment on all charges on November 8, 2011, violated R.C.M. 707.

Slip op. at 8 (citations omitted). The majority concludes that “on balance . . . the convening authority intended to, and did, dismiss the original charges.” Id.

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

United States v. MacDonald, No. 14-0001/AR (CAAFlog case page): Argument audio.

United States v. Treat, No. 14-0280/AR (CAAFlog case page): Argument audio.

United States v. Leahr, 14-0265/CG (CAAFlog case page): Argument audio.

CAAF will hear oral argument in the Coast Guard case of United States v. Leahr, 14-0265/CG (CAAFlog case page), on Wednesday, May 14, 2013. The court will consider a diverse set of issues involving Appellant’s regulatory right to a speedy trial under Rule for Courts-Martial (R.C.M.) 707, the Government’s ability to withdraw charges post-arraignment, and whether the trial military judge should have recused himself:

I. Whether the military judge erred in denying the defense motion to dismiss for violation of appellant’s right to speedy trial under RCM 707.

II. Whether the government’s withdrawal of charges and re-referral to another court-martial was in violation of RCM 604(b) because they were previously withdrawn for an improper reason.

III. Whether appellant was denied a fair trial when the military judge twice suggested in front of the members that appellant was guilty, first by “thanking” a witness for his efforts to protect the victim, and then by asking defense counsel before findings whether a witness would be subject to recall as a “sentencing witness.”

Appellant was convicted contrary to his pleas of not guilty, by general court-martial composed of members with enlisted representation, of one specification of larceny, four specifications of assault consummated by a battery, and two specifications of wrongfully communicating a threat, in violation of Articles 121, 128, and 134. He was acquitted of additional allegations of assault, as well as of burglary and kidnapping. The members sentenced him to confinement for three months, reduction to E-1, and a bad-conduct discharge.

One of the acquittals was for an alleged assault of another Coast Guard member, Avionics Electrical Technician 3rd Class (AET3) LS. The allegation involving AET3 LS wasn’t discovered by the Government until after the Article 32 investigation was complete and Appellant was arraigned on the other charges. The allegation was otherwise unrelated to the case and involved events that occurred a year prior, but was discovered when a Coast Guard Investigative Service (CGIS) Special Agent conducted a follow-up interview with another Coast Guard member who had testified as a Government witness at the Article 32 pretrial investigation. App. Br. at 7. This allegation prompted actions that form the basis for the first two granted issues.

Appellant was originally charged on March 1, 2011. The first Article 32 pretrial investigation occurred on May 17-18 (after the Defense requested more than one month of delay). Appellant was arraigned on the original charges on July 7, 2011. The CGIS interview of the Government Article 32 witness occurred on August 9, 2011. The convening authority subsequently withdrew and dismissed the charges on September 1, with a letter that:

stated that this action was based on the discovery of the new allegation against Appellant and his desire for Appellant to be “tried on all charges at a single trial to best serve the interests of justice and promote judicial economy.”

App. Br. at 7. Five days later the withdrawn and dismissed charges were re-preferred, with the only change being an additional specification of assault consummated by a battery involving AET3 LS. A second Article 32 pretrial investigation was conducted on September 29 (after the Defense requested two weeks of delay), but that investigation involved only the newly preferred assault specification. The investigating officer “recommended disposition of the charge was disposal at an Article 15 proceeding or dismissal.” App. Br. at 8.

Despite the recommendation of the investigating officer, all of the charges were referred to trial by general court-martial. Appellant was arraigned on November 8, 2011. Excluding approved periods of delay, this was 163 days after the first preferral of charges, in violation of the 120-day regulatory speedy trial standard established in R.C.M. 707. Appellant moved for dismissal based on this violation, and on the basis that the withdrawal was for an improper purpose in violation of R.C.M. 604(b). The asserted improper purpose is the “thwarting the limitation in R.C.M. 601(e)(2) prohibiting joinder of offenses after arraignment without the consent of the accused is an improper purpose.” App. Br. at 10. The military judge denied both motions, and the Coast Guard CCA affirmed.

The third granted issue addresses conduct of the military judge during the trial proceedings itself. A civilian witness, who got involved in one of the alleged assaults as a good samaritan, testified for the prosecution on the merits. After he completed his testimony, “the military judge said to him, in the presence of the members, ‘Mr. Bechtol, I want to thank you . . . for coming up, for participating in this process as well as for your actions.'” App. Br. at 35. The Defense objected and moved for a mistrial, which was denied. Later in the trial, when a Defense merits witness was excused, the military judge asked, in the presence of the members, “he’s not a sentencing witness?” App. Br. at 37. The Defense objected to any party referring to sentencing prior to findings.

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