CAAFlog » September 2015 Term » United States v. Cooley

CAAF decided the certified Coast Guard Case of United States v. Cooley, 75 M.J. 247, No.s 15-0384/CG & 15-0387/CG (CAAFlog case page) (link to slip op.), on Friday, May 6, 2016. In a lengthy opinion addressing a complicated factual scenario, CAAF affirms the decision of the Coast Guard CCA that dismissed the charges (all but one with prejudice) for violation of Cooley’s right to a speedy trial.

Judge Ryan writes for a unanimous court.

Pursuant to a pretrial agreement Cooley entered conditional pleas of guilty, at a general court-martial composed of a military judge alone, to four offenses: one specification of attempting a lewd act with a child of more than 12 years but less than 16 years, two specifications of attempting to wrongfully commit indecent conduct, one specification of failing to obey an order, and one specification of wrongfully and knowingly possessing apparent child pornography, in violation of Articles 80, 92, and 134. He was sentenced to confinement for seven years, total forfeitures, reduction to E-1, and a bad-conduct discharge. In accordance with the pretrial agreement the convening authority suspended all confinement in excess of 50 months.

The conditional pleas reserved Cooley’s right to appeal the question of whether he was denied his right to a speedy trial. The court-martial occurred in 2013 – the same year that we declared the death of Article 10. However, in late 2014 the Coast Guard CCA found a violation of Cooley’s Article 10 right to a speedy trial, and also a violation of the R.C.M. 707 speedy trial rule, and it dismissed the charges (three with prejudice, one without). In making those findings the CCA also concluded that pretrial confinement is prejudicial to the rights of an accused no matter how well such confinement is justified. The Judge Advocate General of the Coast Guard then certified the case to CAAF with two issues challenging the CCA’s conclusions, and CAAF subsequently granted review of an additional issue:

Certified Issues:
I. Whether the Coast Guard Court of Criminal Appeals erred by finding that pre-trial confinement can serve as per se prejudice for purposes of determining a violation of Article 10, Uniform Code of Military Justice.
II. Whether the facts and circumstances or Appelle’s case, considering the factors set out in Barker v. Wingo, 407 U.S. 514, 530 (1972) and applied to review of Article 10 by United States v. Birge, 52 M.J. 209, 212 (C.A.A.F. 1999), amount to a violation of Article 10, Uniform Code of Military Justice.

Granted Issue:
Whether the government violated Appellant’s rights under Article 10, UCMJ, when the Government possessed key evidence against Appellant on July 20, 2012 and Feberuary 5, 2013, yet made no move to prosecute Appellant for these offenses until June of 2013, despite his pretrial confinement from December 20, 2012.

With yesterday’s decision CAAF issues its most significant Article 10 decision in years. While the court rejects the CCA’s conclusion that pretrial confinement is per se prejudicial, and also overrules the substantial information rule, the court reanimates the seemingly dead Article 10 speedy trial right by castigating the Government for its lack of diligence in avoiding pretrial delays and concluding that “this case is the outlier that warrants the interposition of Article 10, UCMJ, to fill the interstice in speedy trial rights left open by R.C.M. 707.” Slip op. at 13.

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

United States v. Cooley, No.15-0384/CG & 15-0387/CG (CAAFlog case page): Oral argument audio.

United States v. Wilder, No.15-0087/MC (CAAFlog case page): Oral argument audio.

 

CAAF will hear the first oral argument of the September 2015 Term in the certified Coast Guard Case of United States v. Cooley, No.s 15-0384/CG & 15-0387/CG (CAAFlog case page), on Tuesday, October 6, 2015, at 9:30 a.m. CAAF will review the decision of the Coast Guard CCA that reversed the appellee’s conditional pleas of guilty and dismissed the charges (some with prejudice) after the CCA found a violation of the Article 10 statutory speedy trial right, with the following issues:

Certified Issues:
I. Whether the Coast Guard Court of Criminal Appeals erred by finding that pre-trial confinement can serve as per se prejudice for purposes of determining a violation of Article 10, Uniform Code of Military Justice.
II. Whether the facts and circumstances or Appelle’s case, considering the factors set out in Barker v. Wingo, 407 U.S. 514, 530 (1972) and applied to review of Article 10 by United States v. Birge, 52 M.J. 209, 212 (C.A.A.F. 1999), amount to a violation of Article 10, Uniform Code of Military Justice.

Granted Issue:
Whether the government violated Appellant’s rights under Article 10, UCMJ, when the Government possessed key evidence against Appellant on July 20, 2012 and Feberuary 5, 2013, yet made no move to prosecute Appellant for these offenses until June of 2013, despite his pretrial confinement from December 20, 2012.

Pursuant to a pretrial agreement the appellee conditionally pleaded guilty, at a general court-martial composed of a military judge alone, to one specification of attempting a lewd act with a child of more than 12 years but less than 16 years, two specifications of attempting to wrongfully commit indecent conduct, one specification of failing to obey an order, and one specification of wrongfully and knowingly possessing apparent child pornography, in violation of Articles 80, 92, and 134. He was sentenced to confinement for seven years, total forfeitures, reduction to E-1, and a bad-conduct discharge. In accordance with the pretrial agreement the convening authority suspended all confinement in excess of 50 months.

The conditional pleas reserved the appellee’s right to appeal the question of whether he was denied his right to a speedy trial. These pleas were entered in October, 2013 – the year that we declared the death of Article 10. However, in late 2014 the Coast Guard CCA found a violation of the appellee’s Article 10 right to a speedy trial, and it dismissed the charges. I analyzed the CCA’s decision in this post, titled The Coast Guard CCA raises Article 10 from the dead, but in which I expressed skepticism about the CCA’s conclusion.

Specifically, in my post I noted that Article 10 issues are evaluated using the four-factor framework from Barker v. Wingo, 407 U.S. 514, 530 (1972): “(1) the length of the delay; (2) the reasons for the delay; (3) whether the appellant made a demand for a speedy trial; and (4) prejudice to the appellant.” United States v. Wilson, 72 M.J. 347, 351 (C.A.A.F. 2013) (CAAFlog case page) (citations omitted). The prejudice prong is often the most difficult for an individual asserting a violation of Article 10, and it is the prejudice prong that is at issue in Cooley because the Coast Guard CCA explicitly held that “pretrial confinement is prejudice no matter how solidly based.” United States v. Cooley, No. 1389, slip op. at 9 (C. G. Ct. Crim. App. Dec. 24, 2014) (link to slip op.).

The CCA cited (and I found) no precedent to support the conclusion that pretrial confinement is per se prejudicial, and the Judge Advocate General of the Coast Guard certified the case to CAAF asking that question and a separate question of whether the CCA properly applied the Barker factors in general. CAAF subsequently granted review of a third issue involving Article 10 that is similar to the issue presented in another case that will be argued on the same day, United States v. Wilder, No. 15-0087/MC (CAAFlog case page).

The case is a complicated way to start the term, with a total of six briefs from the parties: For the certified issues there is a Government brief, the appellee’s answer, and a Government reply brief; for the granted issues there is the appellee’s brief, a Government answer, and the appellee’s reply. Further, these arguments address a complex record.

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In a petition filed earlier this month in the certified Coast Guard case of United States v. Cooley, No. 15-0387/CG (CAAFlog case page) the appellee apparently seeks release from pretrial confinement:

No. 16-0008/CG. Christopher S. Cooley, Petitioner v. William G. Kelly, Rear Admiral, United States Coast Guard, in his official capacity as Commander, Personnel Service Center, and United States, Respondents. Notice is hereby given that a petition for extraordinary relief in the nature of a writ of habeas corpus or writ of mandamus was filed under Rule 27(a) on this date.

I first discussed this case in this post last January, where I analyzed the CGCCA’s decision that dismissed numerous charges for violation of Cooley’s right to a speedy trial under Article 10. Cooley conditionally pleaded guilty pursuant to a pretrial agreement to one specification of attempting a lewd act with a child of more than 12 years but less than 16 years, two specifications of attempting to wrongfully commit indecent conduct, one specification of failing to obey an order, and one specification of wrongfully and knowingly possessing apparent child pornography, in violation of Articles 80, 92, and 134. He was sentenced to confinement for seven years, total forfeitures, reduction to E-1, and a bad-conduct discharge. In accordance with the pretrial agreement the convening authority suspended all confinement in excess of 50 months.

After the CGCCA dismissed the charges, the Judge Advocate General of the Coast Guard certified the case to CAAF (discussed here). CAAF then granted review of an additional issue (discussed here). But then the court rejected a motion for expedited review (discussed here), with a dissent from then-Chief Judge Baker.

The case is currently scheduled for argument on October 6, as the first oral argument of the current term.

CAAF’s daily journal shows the following entry from Tuesday, June 9:

No. 15-0387/CG. U.S. v. Christopher S. Cooley. CCA 1389.  On consideration of Appellant’s motion for an expedited review, it is ordered that said motion is hereby denied.*

* BAKER, Chief Judge (dissenting):

Given the nature of the issue presented, I would grant oral argument immediately.

Cooley is a case involving application of the speedy trial rule in Article 10, UCMJ. Article 10 was our #10 military justice story of 2013. “CAAF blotted the ink from Article 10’s obituary [in 2013],” I wrote, and “the possibility that Article 10 will rise from the dead [in 2014] is slim.”

But in the final days of 2014 the Coast Guard CCA issued an opinion in United States v. Cooley, No. 1389 (C. G. Ct. Crim. App. Dec. 24, 2014), dismissing numerous charges for violation of Cooley’s right to a speedy trial under Article 10. Chief Judge McClelland wrote for a three-judge panel of the court. I discussed the CCA’s opinion in a post titled: The Coast Guard CCA raises Article 10 from the dead.

At trial in late 2013, Cooley entered conditional guilty pleas to numerous offenses, including attempting a lewd act with a child. The adjudged sentence included confinement for seven years, but in accordance with a pretrial agreement the convening authority suspended all confinement in excess of fifty months. A year later the CCA dismissed all of the charges (some with prejudice, others without). But the Judge Advocate General of the Coast Guard certified the case to CAAF on February 23, 2015 (discussed here), with two issues focusing on the question of prejudice for the speedy trial violation. CAAF then granted review of a third issue addressing the substantial information rule (discussed here).

CAAF’s caselaw holds that decisions of the service courts are not self-executing and that they remain “inchoate” during the time for certification by a judge advocate general. United States v. Miller, 47 M.J. 352, 361 (C.A.A.F. 1997). However,

After considering the matter, if the Judge Advocate General decides to certify a case to this Court, an accused’s interest in the favorable decision of the court below (even if inchoate) requires either that the accused be released in accordance with that decision or a hearing on continued confinement be conducted under RCM 305.

Id. at 362. The CCA’s decision should result in the release of Cooley from post-trial confinement. However, Chief Judge Baker’s dissent implies that he is being held in pretrial confinement, based at least in part on the offenses that the CCA ordered dismissed with prejudice.

CAAF granted review in two cases yesterday. The first was previously certified to CAAF by the Judge Advocate General of the Coast Guard:

No. 15-0384/CG. U.S. v. Christopher S. Cooley. CCA 1389.  On consideration of the petition for grant of review of the decision of the United States Coast Guard Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE GOVERNMENT VIOLATED APPELLANT’S RIGHTS UNDER ARTICLE 10, UCMJ, WHEN THE GOVERNMENT POSSESSED KEY EVIDENCE AGAINST APPELLANT ON JULY 20, 2012, AND FEBRUARY 5, 2013, YET MADE NO MOVE TO PROSECUTE APPELLANT FOR THESE OFFENSES UNTIL JUNE OF 2013, DESPITE HIS PRETRIAL CONFINEMENT FROM DECEMBER 20, 2012.

Briefs will be filed under Rule 25.

I analyzed the CCA’s opinion in this January post titled The Coast Guard CCA raises Article 10 from the dead. I noted the JAG’s certification in this post. And in this post I noted Cooley in the context of CAAF’s grant of review in the Marine Corps case of United States v. Wilder, No. 15-0087/MC. In Wilder, CAAF will consider whether the substantial information rule persists after the promulgation of R.C.M. 707.

Between Cooley and Wilder, Article 10 might be dragged back from the afterlife next term…

The second grant involves application of the maximum sentence determination provisions of R.C.M. 1003(c)(1)(B):

No. 15-0477/AF. U.S. v. Nicholas E. Busch. CCA 38530. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

AT THE TIME OF APPELLANT’S ALLEGED SEXUAL ABUSE OF A CHILD OFFENSE, THE PRESIDENT HAD NOT SET THE MAXIMUM PUNISHMENT FOR THE OFFENSE. THE MILITARY JUDGE USED A LATER-ENACTED EXECUTIVE ORDER TO SET THE MAXIMUM PUNISHMENT, EVEN THOUGH IT INCREASED THE CONFINEMENT RANGE FROM ONE YEAR TO FIFTEEN YEARS. WAS THE EX POST FACTO CLAUSE VIOLATED?

Briefs will be filed under Rule 25.

I discussed the AFCCA’s decision in this March post titled The Air Force CCA grapples with R.C.M. 1003(c)(1)(B).

When I wrote this post about the Coast Guard CCA’s opinion in United States v. Cooley, No. 1389 (C.G. Ct. Crim. App. Dec. 24, 2014), in which the court dismissed numerous charges for violation of the appellant’s right to a speedy trial under Article 10 after finding that pretrial confinement is per se prejudicial, I was pessimistic that the court had successfully resurrected Article 10 (declared long-dead in our #10 military justice story of 2013). I saw certification of the case as guaranteed, and I thought that if CAAF stays true to its Article 10 jurisprudence, then it’s going to look for something more than mere confinement to justify a finding of prejudice.

The following CAAF daily journal entry from yesterday says that my prediction will be put to the test:

No. 15-0387/CG. U.S. v. Christopher S. Cooley. CCA 1389.  Notice is hereby given that a certificate for review of the decision of the United States Coast Guard Court of Criminal Appeals was filed under Rule 22 on this date on the following issues:

WHETHER THE COAST GUARD COURT OF CRIMINAL APPEALS ERRED BY FINDING THAT PRE-TRIAL CONFINEMENT CAN SERVE AS PER SE PREJUDICE FOR PURPOSES OF DETERMINING A VIOLATION OF ARTICLE 10, UNIFORM CODE OF MILITARY JUSTICE.

WHETHER THE FACTS AND CIRCUMSTANCES OF APPELLEE’S CASE, CONSIDERING THE FACTORS SET OUT IN BARKER V. WINGO, 407 U.S. 514, 530 (1972) AND APPLIED TO REVIEW OF ARTICLE 10 BY UNITED STATES V. BIRGE, 52 M.J. 209, 212 (C.A.A.F. 1999), AMOUNT TO A VIOLATION OF ARTICLE 10, UNIFORM CODE OF MILITARY JUSTICE

Article 10 was our #10 military justice story of 2013. “CAAF blotted the ink from Article 10’s obituary [in 2013],” I wrote, and “the possibility that Article 10 will rise from the dead [in 2014] is slim.”

But in the final days of 2014 the Coast Guard CCA issued an opinion in United States v. Cooley, No. 1389 (C. G. Ct. Crim. App. Dec. 24, 2014) (link to slip op.) dismissing numerous charges for violation of the appellant’s right to a speedy trial under Article 10. Chief Judge McClelland wrote for a three-judge panel of the court.

Pursuant to a pretrial agreement the appellant conditionally pleaded guilty, at a general court-martial composed of a military judge alone, of one specification of attempting a lewd act with a child of more than 12 years but less than 16 years, two specifications of attempting to wrongfully commit indecent conduct, one specification of failing to obey an order, and one specification of wrongfully and knowingly possessing apparent child pornography, in violation of Articles 80, 92, and 134. He was sentenced to confinement for seven years, total forfeitures, reduction to E-1, and a bad-conduct discharge. In accordance with the pretrial agreement the convening authority suspended all confinement in excess of 50 months.

In July 2012 the appellant confessed to soliciting sexually explicit photographs from minor children. He was then subjected to a series of pretrial restraints, until he was eventually ordered into pretrial confinement (for the second time) on December 20, 2012, where he remained until his guilty plea on October 4, 2013. Many things happened in those 289 days: charges were dismissed without prejudice for violation of the regulatory speedy trial RCM 707, new charges were added, and two Article 32 pretrial investigations were conducted.

This creates a complicated case history from which I draw the following important dates:

  • December 20, 2012: The appellant was placed into pretrial confinement;
  • February 29, 2013: Charges preferred;
  • May 23, 2013: Charges dismissed without prejudice, for violation of the 120-day time limit of RCM 707;
  • May 23, 2013: Original charges re-preferred;
  • Unknown date: Charges dismissed;
  • June 14, 2013: Original charges preferred for third time, along with two new specifications;
  • September 10, 2013: The appellant was arraigned, military judge denied motion to dismiss on speedy trial grounds;
  • October 4, 2013: The appellant entered conditional pleas of guilty.

The CCA’s decision dismisses the original charges with prejudice (for violation of Article 10), and the two additional specifications without prejudice (for violation of RCM 707). And so it seems that Article 10 has risen from the dead! But I’m not so sure…

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