CAAFlog » September 2015 Term » United States v. Wilder

CAAF decided the Marine Corps case of United States v. Wilder, 75 M.J. 135, No.15-0087/MC (CAAFlog case page) (link to slip op.), on Monday, March 7, 2016. In a short and focused decision, CAAF finds no reason to apply an old, judicially-created speedy trial rule. Instead, the court applies the plain language of Rule for Courts-Martial (R.C.M. 707) to find no speedy trial violation in this case, affirming the decision of the Navy-Marine Corps CCA and the appellant’s convictions.

Judge Ryan writes for a unanimous court.

CAAF granted review of a single issue:

Whether the promulgation of RCM 707 abrogated the “substantial information” rule originated in United States v. Johnson, 23 C.M.A. 91, 48 C.M.R. 599 (1974).

The factual basis for the case is detailed in my argument preview, but it fades to the background of CAAF’s decision in which Judge Ryan gives a short dissertation on various speedy trial provisions applicable courts-martial and then makes quick work of the granted issue by holding that the plain language of the R.C.M. controls:

The narrow issue for decision in this case is whether, for purposes of a speedy trial violation alleged under R.C.M. 707, the time is calculated by reference to the specific triggers listed in R.C.M. 707(a) or by reference to some other standard such as the “substantial information” rule. Based on the plain language of R.C.M. 707, we do not hesitate to conclude that when analyzing a speedy trial violation under R.C.M. 707, it is the earliest of the actions listed in R.C.M. 707(a) with respect to a particular charge that starts the speedy trial clock for that charge. R.C.M. 707, promulgated in 1984, was a new and different layer of protection against speedy trial violations, see Kossman, 38 M.J. at 260, and for violations alleged under its rubric, its plain language controls. See United States v. Ruffin, 48 M.J. 211, 213 (C.A.A.F. 1998); United States v. Thompson, 46 M.J. 472, 475 (C.A.A.F. 1997).

There was no R.C.M. 707 violation in this case. With respect to the Additional Charges, because Appellant was not confined based on them, see supra note 5, the trigger dates from which to measure an alleged violation of R.C.M. 707 for the Additional Charges in this case are the dates of preferral. At most, 111 days passed between preferral and arraignment on Additional Charges I and II, and nineteen days between preferral and arraignment on Additional Charge III.

Slip op. at 6.

Judge Ryan’s opinion avoids an explicit declaration of whether the substantial information rule was abrogated by the promulgation of R.C.M. 707, but her analysis leaves little room for invocation of the rule in any case. The rule was created in 1974 to address situations where an accused was placed into pretrial confinement on some charges and then additional charges were added; it started the Article 10 speedy trial clock (distinct from the future R.C.M. 707 speedy trial clock) for the additional charges on the date when the Government had substantial information to prefer them (and not on the generally later date of actual preferral). Judge Ryan’s opinion only just alludes to the possibility that substantial information (and not actual preferral of charges) might implicate Article 10 for an accused already in pretrial confinement on other offenses:

“The fact that a prosecution meets the 120-day rule of R.C.M. 707 does not directly ‘or indirectly’ demonstrate that the Government moved to trial with reasonable diligence as required by Article 10.” Mizgala, 61 M.J. at 128. Similarly, the government might move with all reasonable diligence for purposes of Article 10, UCMJ, but nonetheless violate the bright-line 120-day rule of R.C.M. 707. See Kossman, 38 M.J. at 261.

Slip op. at 5. So a future case could possibly give CAAF a reason to revisit this old rule. But it plays no role in CAAF’s decision in this case.

Case Links:
NMCCA opinion
• Blog post: Two interesting speedy trial decisions from the NMCCA
• Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

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 oral argument in the Marine Corps case of United States v. Wilder, No.15-0087/MC (CAAFlog case page), on Tuesday, October 6, 2015. The court will consider whether an old, judicially-created speedy trial rule still exists:

Whether the promulgation of RCM 707 abrogated the “substantial information” rule originated in United States v. Johnson, 23 C.M.A. 91, 48 C.M.R. 599 (1974).

On November 13, 2012, the appellant was apprehended by Naval Criminal Investigative Service agents who suspected him of child exploitation offenses. He was placed into pretrial confinement the next day, and he remained in pretrial confinement through trial. Charges were preferred against the appellant on December 4, 2012, the appellant was arraigned at a general court-martial on April 23, 2013, and trial was scheduled for August 27, 2013. But then additional charges were preferred on April 16 and July 17, 2013, and those additional charges were referred to a separate general court-martial.

The appellant moved to dismiss the additional charges for “violations of his right to a speedy trial under Rule for Courts-Martial (R.C.M.) 707, Article 10, UCMJ, and the Sixth Amendment.” App. Br. at 5-6. Pretrial negotiations followed, and the appellant agreed to withdraw his motion to dismiss (prior to litigation), to consent to joinder of all of the charges in a single court-martial, and to plead guilty to attempted sexual assault of a child in violation of Article 80, and possession and distribution of child pornography in violation of Article 134. On November 12, 2013, the appellant was sentenced confinement for 13 years, reduction to E-1, total forfeitures, and a dishonorable discharge. In accordance with the pretrial agreement the convening authority suspended all confinement in excess of 48 months.

The appellant again raised his speedy trial claims on appeal, asserting that the withdrawal of the speedy trial motion was an impermissible term of the pretrial agreement. The NMCCA agreed (in a decision I discussed here) and reviewed the speedy trial issue de novo. Separating the earlier charges (arraigned first) from the later charges (arraigned second), the CCA concluded that there was no speedy trial violation under R.C.M. 707, Article 10, or the Sixth Amendment. In so concluding, the CCA held “that R.C.M. 707(a)(1) establishes the commencement of the speedy trial clock for the additional charges as the dates of preferral,” not the date of imposition of pretrial confinement. Slip op. at 6. CAAF then granted review.

“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. While the appellant asserted a violation of all three categories of speedy trial rights, CAAF’s review focuses on the interplay between two of those categories: The statutory speedy trial right in Article 10 and the regulatory speedy trial right in R.C.M. 707.

Read more »

CAAF granted review in two cases yesterday. The first involves an issue specified by the court:

No. 15-0087/MC. U.S. v. Carlton Wilder, Jr. CCA 201400118.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court:

WHETHER THE PROMULGATION OF RCM 707 ABROGATED THE “SUBSTANTIAL INFORMATION” RULE ORIGINATED IN UNITED STATES v. JOHNSON, 23 C.M.A. 91, 48 C.M.R. 599 (1974).

Briefs will be filed under Rule 25.

I discussed the CCA’s opinion in this post. The substantial information rule from Johnson addressed the presumption of an Article 10 speedy trial violation established in United States v. Burton, 44 C.M.R. 166 (1971), for pretrial confinement in excess of 90 days. But when an accused was confined for some offenses, and then additional offenses were discovered, the 90-day clock for the additional offenses began when “the Government had in its possession substantial information on which to base the preference of charges.” Johnson, 48 C.M.R. at 601. President Reagan promulgated R.C.M. 707 in 1984 (with a 90-day clock), and President Bush modified the rule to the current 120-day standard in 1991. Burton was then overruled in United States v. Kossman, 38 M.J. 258, 261 (C.M.A. 1993).

In Wilder, the NMCCA held that “Kossman voids the Johnson rule as well,” and that “R.C.M. 707(a)(1) establishes the commencement of the speedy trial clock for the additional charges as the dates of preferral.” Wilder, slip op. at 6. Notably, the AFCCA reached a similar conclusion in United States v. Proctor, 58 M.J. 792, 797 (A.F. Ct. Crim. App 2003). But cfUnited States v. Bray, 52 M.J. 659, 661 (A.F. Ct. Crim. App. 2000) (“We hold that, when an accused is placed in pretrial confinement as a result of a particular incident, the speedy-trial clock begins to run for all offenses that the prosecution knows, or reasonably should know, were part of that incident.”). However, the Coast Guard held otherwise – and applied the substantial information standard – in United States v. Cooley, No. 1389 (C.G. Ct. Crim. App. Dec. 24, 2014), cert. for rev. filed, __ M.J. __ (Feb. 23, 2015) (discussed here). And the Army court applied the substantial information standard in United States v. Boden, 21 M.J. 916, 917-18 (A.C.M.R. 1986).

Because of this, I think Wilder is a great candidate for amicus filings from the Army, Air Force, and Coast Guard appellate divisions.

The second grant from yesterday involves a lesser included offense issue:

No. 15-0334/MC. U.S. v. Quantaus R. Riggins. CCA 201400046.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE LOWER COURT ERRED IN DECIDING A QUESTION OF LAW WHICH HAS NOT BEEN, BUT SHOULD BE, SETTLED BY THIS COURT WHEN IT HELD THAT ASSAULT CONSUMMATED BY BATTERY WAS A LESSER INCLUDED OFFENSE TO ABUSIVE SEXUAL CONTACT AND SEXUAL ASSAULT.

Briefs will be filed under Rule 25.

The CCA’s opinion is available here.

The NMCCA recently denied relief in two cases involving assertions of speedy trial violations.

In United States v. Spratling, No. 201400060 (N-M. Ct. Crim. App. Jul. 31, 2014) (link to slip op.), the CCA rejected the appellant’s argument that the Government’s preferral of replacement charges was a subterfuge to deprive him of a speedy trial. The appellant was charged with an indecent act in violation of Article 120 (2006), receipt of child pornography in violation of Article 134, and an indecent act in violation of Article 134. The allegations were all based on the appellant’s interactions with KS, a minor.

The charges were preferred in January 2013, and an Article 32 pretrial investigation was conducted. After the 32, “the Government preferred substantially the same charges” in March, and those charges were referred to trial by general court-martial. Slip op. at 2. The Defense then successfully moved to dismiss the Article 120 offense as an unreasonable multiplication of charges, leaving only the child pornography and indecent act specifications under Article 134. In response, the Government preferred two new charges in June alleging an indecent act in violation of Article 120 and receipt of child pornography in violation of Article 134. These charges were referred to the same general court-martial, and the remaining charges preferred in March were dismissed. This action had the effect of both reinstating the dismissed Article 120 charge and resetting the speedy trial clock.

The appellant was then convicted of both the 120 and 134 offenses, contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, and sentenced to confinement for 60 days and a bad-conduct discharge. Before trial the appellant moved to dismiss  the charges for violation of his right to a speedy trial, but the military judge denied the motion. The judge “specifically ruled that the trial counsel’s dismissal on 9 July 2013 of the child pornography charge at the direction of the CA, was neither improper nor a subterfuge.” Slip op. at 4.

The appellant renewed this claim on appeal (personally, as a Grostefon matter), but the CCA denied relief by agreeing with the trial judge’s ruling. However, the CCA merely summarily accepts the judge’s conclusion regarding the re-preferral, casting it as a finding of fact that is “clearly supported by the record.” Slip op. at 4. The CCA does not actually discuss the reason why the charges were re-preferred (and it’s not particularly clear why the Government did this, except to usurp the judge’s unreasonable multiplication ruling). Nor does the CCA discuss whether the appellant demanded a new Article 32 each time new charges were preferred, as was his right. See, e.g., United States v. Leahr, 14-0265/CG, 73 M.J. 364 (C.A.A.F. Jul. 25, 2014) (CAAFlog case page). See also Article 32(c).

But things are even wilder in United States v. Wilder, No. 201400118 (N-M. Ct. Crim. App. Aug. 12, 2014) (link to slip op.), where the appellant pleaded guilty pursuant to a pretrial agreement that required him “to withdraw his motion to dismiss for a violation of his right to a speedy trial.” Slip op. at 2. The Government “concedes that the condition was impermissible,” but argued that the appellant waived the issue by his unconditional plea of guilty. Id. But in addition to the unconditional plea, the CCA notes that:

In an exhibit entitled, “Sentencing Memo (Continuation of Lance Corporal Wilder’s unsworn statement through counsel),” the civilian defense counsel argued: “The conviction will stick. There were motions pending and waived by this plea that could have resulted in charges being dismissed, perhaps with prejudice. Even if the motions were denied, there would be appellate issues that would have kept this case active for years, perhaps resulting in a retrial. Pleading guilty removed the real possibility charges would be dismissed and removed realistic appellate issues.” Defense Exhibit B at 1.

Slip op. at 4 n.4 (emphasis in original). Despite this, the CCA finds that the appellant did not waive the speedy trial issue, and that he has made a “prima facie showing or a colorable claim that he is entitled to relief.” Slip op. at 5 (quoting United States v. McLaughlin, 50 M.J. 217, 219 (C.A.A.F. 1999)). The CCA then analyzes the issue, beginning with the fact that the appellant was in pretrial confinement for only some, and not all, of the charges, and that he was arraigned twice (initially objecting to joinder).

Separating the earlier charges (arraigned first) from the later charges (arraigned second), the CCA concludes that there was no speedy trial violation under R.C.M. 707, Article 10, or the Sixth Amendment. This conclusion is made possible by the fact that the CCA “hold[s] that R.C.M. 707(a)(1) establishes the commencement of the speedy trial clock for the additional charges as the dates of preferral,” not the date of imposition of pretrial confinement. Slip op. at 6.