CAAF decided the interlocutory Army case of United States v. Hendrix, 77 M.J. 454, No. 18-0133/AR (CAAFlog case page) (link to slip op.), on Tuesday, June 19, 2018. Rejecting the military judge’s conclusion that a dismissal of charges (followed shortly by a re-preferral) was a subterfuge to avoid the regulatory (R.C.M. 707) speedy trial right, CAAF finds no speedy trial violation and reverses the military judge’s decision that dismissed the charges with prejudice, affirming the decision of the Army CCA.

Judge Sparks writes for a unanimous court.

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

He did, explains Judge Sparks, because “dismissal and repreferral are fully permissible under the provisions of R.C.M. 707.” Slip op. at 5. As for the alleged victim’s vacillating willingness to participate, the court finds that this actually supported the convening authority’s action, because “the fact that the complaining witness changed her mind about testifying dramatically changed the strength of the Government’s case.” Slip op. at 6.

Judge Sparks begins the court’s analysis with a citation to United States v. Leahr, 73 M.J. 364 (C.A.A.F. 2014) (CAAFlog case page), where a divided CAAF found that the appellant’s regulatory speedy trial right was not violated because the charges were dismissed and re-preferred, resetting the 120-day speedy trial clock:

To determine whether Appellant’s R.C.M. 707 rights were violated by the convening authority’s dismissal and repreferral, we apply the legal standard from Leahr, 73 M.J. at 369. “Absent a situation where a convening authority’s express dismissal is either a subterfuge to vitiate an accused’s speedy trial rights, or for some other improper reason, a clear intent to dismiss will be given effect.” Id. Leahr elaborates on our statement in United States v. Tippit that “[o]nce charges are dismissed, absent a subterfuge, the speedy-trial clock is restarted.” 65 M.J. 69, 79 (C.A.A.F. 2007) (alteration in original) (citing United States v. Anderson, 50 M.J. 447, 448 (C.A.A.F. 1999)). In Leahr, we defined a proper reason (in the context of a discussion of R.C.M. 604 which governs withdrawal of charges from court-martial) as “a legitimate command reason which does not ‘unfairly prejudice’ an accused.” 73 M.J. at 369 (internal quotation marks omitted) (citation omitted).

Slip op. at 5.

Then Judge Sparks reviews the facts, concluding that “without [the alleged victim’s] cooperation, the Government had no intention of prosecuting the case,” slip op. at 5-6, and that “her lack of participation was the driving reason behind the Government’s dismissal and that the Government’s repreferral of the charges was consistent with [her] decision to finally testify.” Slip op. at 6.

A footnote dismisses concerns (raised by Hendrix’s appellate defense counsel) that, in light of the alleged victim’s initial unwillingness to participate, the charges themselves were a subterfuge to provoke Hendrix to request administrative separation in lieu of trial by court-martial (and the associated undesirable characterization of discharge). CAAF finds that “Appellant’s reasoning is based entirely on supposition and does not factor into this Court’s examination of the granted issue.” Slip op. at 6 n.4.

Additionally, the court rejects the notion that it was improper for the convening authority to consider the alleged victim’s preference:

Both the SJA and Government counsel iterated that the decision to dismiss the charges was prompted by Dep’t of Defense, Instr. 6495.02, Sexual Assault Prevention and Response (SAPR) Program Procedures (Mar. 28, 2013) [hereinafter DoDI 6495.02]. The Instruction reads, in relevant part, that:

[T]he victim’s decision to decline to participate in an investigation or prosecution should be honored by all personnel charged with the investigation and prosecution of sexual assault cases …. If at any time the victim who originally chose the Unrestricted Reporting option declines to participate in an investigation or prosecution, that decision should be honored.

DoDI 6495.02 Encl. 4, para. 1(c)(1). Though adherence to this Instruction does not impact the legality — or lack thereof — of the Government’s actions, we will note that dismissal further along in the process, when Private EW clarified she did not want to participate, was in line with DoDI 6495.02 as was the subsequent repreferral when Private EW changed her mind.

Slip op. at 7. Put differently, consideration of an alleged victim’s preferences is a valid basis to move forward – or not – with a particular prosecution. That’s an unsurprising conclusion.

CAAF simply doesn’t see the circumstances presented by this case as particularly unusual, but Judge Sparks warns that the court’s decision is limited to the particular facts of this case:

while we conclude that dismissal and repreferral under these circumstances is appropriate, we need not decide in this case whether or when multiple dismissals might be deemed improper.

Slip op. at 7.

Case Links:
• ACCA opinion
• Blog post: CAAF grants review
• Appellant’s brief (supplement to the petition for review)
• Appellee’s (Army Gov’t App. Div.) brief (answer to the supplement)
• Appellant’s reply brief (reply to the answer to the supplement)
• Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

5 Responses to “Opinion Analysis: The dismissal (based on the alleged victim’s unwillingness to participate in the prosecution) was not a subterfuge, and so there was no speedy trial violation, in United States v. Hendrix”

  1. k fischer says:

    This is a great opinion for the Government.  Once the alleged vic makes a sworn statement in an unrestricted report, they can prefer charges immediately, no matter how weak the allegations are, then leverage that into an administrative separation if the alleged vic changes her mind or the case appears to be particularly weak.  If the accused does not submit a Chapter 10 and wants to take the case to trial, then the Government simply only needs to dismiss the charges and (1) pursue a paper admin sep board; or (2) let the Accused continue to serve while flagged until the alleged vic changes her mind a month, year, or decade later.
    And I disagree with this sentence:  

     The military judge is free to decide at any point whether there is subterfuge or an improper reason behind a dismissal and whether the speedy trial clock can start anew. (footnote ommitted)

    The military judge is free to decide at any point after re-referral whether there is subterfuge or an improper reason behind a dismissal and whether the speedy trial clock can start anew.
    I agree with the opinion based on the reported facts that there was no deception or ill-will by the Government to dismiss the charge, particularly in light of the DoDI advising they should honor the vic’s desire to not participate.  However, I question whether allowing an alleged vic to dictate whether or not she is going to participate as a witness in a Court-martial in a crime as serious as rape is proper.  To me, the result of this instruction strongly appears to make PVT EW the real party in interest, and the US Government is merely the agent who is not seeking justice, but rather, a result that meets her satisfaction.  As a former trial counsel and instructor of military justice, I have a difficult time reconciling how the DoD can recommend that the Government should dismiss a charge of rape, rather than subpeona the alleged to vic to testify, and allow an individual they have alleged is a rapist to not go to jail, not be punitively discharged, and not have to register as a sex offender.

  2. Nathan Freeburg says:

    Well, the real player in interest is media and congressional attention. Once you assume that the CNN factor is relevant then the M.J. shop’s decision is rational and proper. (Actually keeping a purported rapist from being on the loose isn’t important. Whether the “victim” will go to the press is.)

  3. k fischer says:

    I slightly disagree.  I think that Gillbrand and POD would argue that a high rate of general discharges for Servicemembers with less than 6 years in time of Service who were facing rape charges is not “justice” and that’s why trained prosecutors and not Commanders should be making these decisions, which is why they are proposing the 2019 Military Justice Improvement Act…………
    But, I gotta be a glass is half full guy here: at least this instruction allows women to make false allegations and only get Servicemen fired from their jobs, rather than convicted at a Court-martial.

  4. Zachary D Spilman says:

    If the accused does not submit a Chapter 10 and wants to take the case to trial, then the Government simply only needs to dismiss the charges and (1) pursue a paper admin sep board; or (2) let the Accused continue to serve while flagged until the alleged vic changes her mind a month, year, or decade later.

    Your hypothetical, k fischer, is very close to the facts of United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), that went to CAAF after the military judge dismissed the charge (with prejudice) on 5th Amendment speedy trial grounds. 

  5. k fischer says:

    Good call bringing up Mangahas.  Too bad CAAF kicked the case on SOL grounds, rather than address the constitutional violation, which I think is the 6th Amendment.
    As far as Congressional pressure, Senator Gillibrand is once again proving AF TJAG was correct in his assessment as stated in US v. Boyce  I would really like to know what evidence the SVC reviewed to justify stating that “OSI agents left out relevant evidence for review and that even with what was included he is perplexed by Jacobson’s decision not to go forward to an Article 32 hearing.”
    And, if “qualified military prosecutors and civilian experts in the Air Force that potentially could have provided valuable input were barred from reviewing the case,” then the DoD IG should investigate how this case was processed because this article strongly suggests that this case was swept under the carpet without any input from a Judge Advocate whatsoever.  And, the report should be made available to the public.