United States v. Berrey

28 M.J. 714, 1989 CMR LEXIS 157, 1989 WL 35090

• Court: U.S. Navy-Marine Corps Court of Military Review
• Decided: March 8, 1989
• Docket: NMCM No. 882589 M
• Status: Published

Opinions

OPINION

ALBERTSON, Judge:

This is an appeal by the United States under Article 62, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 862, and Rule for Courts-Martial (R.C.M.) 908, Manual for Courts-Martial (MCM), United States, 1984, of the military judge’s dismissal of Charges I through VIII¹ and their specifications at a special court-martial due to denial of speedy trial.

Pursuant to Rule 17(a) of the Rules of Practice and Procedure of the Courts of Military Review, the Court ordered the case to be considered en banc and heard oral argument on the Government’s appeal of the military judge’s dismissal.

In determining a Government appeal, we may take action only with respect to matters of law. Article 62(b), UCMJ, and R.C.M. 908(c)(2). See United States v. Burris, 21 M.J. 140 (C.M.A.1985). We are bound by the military judge’s findings of fact unless they are unsupported by the evidence of record or clearly erroneous. Id. at 144.

The military judge adopted as factual the following stipulated chronology:

10 July 86 Accused interrogated by NIS for three suspected fraudulent travel claims.

9 Oct 86 Results of SEAL Team 6 investigation referred to Department of Justice [DOJ].

28 Jan 87 NIS telefaxes copy of original charges to Commander Naval Surface Force, U.S. Atlantic Fleet [SUR-FLANT], due to impending expiration of statute of limitations.

6 Feb 87 Charges I-VIII preferred. DOJ retains primary jurisdiction. Preferral done solely to preserve military jurisdiction in case DOJ declines to prosecute.

10-12 May 87 Head DC notified of charges against various SEAL Team 6 members who would be aboard NLSO within two weeks.

22 May 87 DC detailed for accused and notified of nature of charges. CA’s intent is to bring . only larceny (of Government equipment) charge.

15 June 87 DC conducts first interview with accused.

21 July 87 NIS legal advisor informs SURFLANT SJA that DOJ was relinquishing authority to prosecute Charges III, IV, and V to military. Evidence on those charges delivered.

27 July 87 NIS legal advisor informs SURFLANT that remaining charges may be prosecuted by military.

30 July 87 SURFLANT legal receives evidence concerning Charge V.

10 Aug 87 SURFLANT legal receives evidence concerning Charges VI and VII.

24 Aug 87 SURFLANT legal is told DOJ has revoked jurisdiction over accused and no action will be taken by Navy regarding fraudulent claims.

3 Sep 87 DC briefed and allowed access to classified information. DC interviews accused regarding subject charges and the statement made by the accused to NIS on 10 July 87.

5 Sep 87 SURFLANT legal discovers documentary evidence relating to accused’s case not previously marked may contain classified information.

17 Sep 87 NIS legal advisor tells SURFLANT that Navy may prosecute accused for travel claim fraud and larceny.

29 Sep 87 SURFLANT legal submits evidence for classification review.

29 Sep 87-2 Feb 88 Classification review conducted. After review and return of documents, several classification questions remain unanswered.

14 Oct 87-Feb 88 Series of requests by TC to expedite classification review.

10 Feb 88 TC requests JAG 01S assistance regarding unanswered questions.

12 Feb-23 Feb 88 Secondary classification review conducted as per request of TC.

16 Feb 88 TC requests additional assistance from JAG 01S.

24 Feb 88 Final questions posed to JAG and CNO 29 Feb 88. Final classification review complete. Unanswered questions resolved.

3 Mar 88 Charges delivered to NLSO.

4 Mar 88 Charges placed in DC’s mailbox.

16 Mar 88 DC receives copy of charge sheet, gives copy to accused.

29 Apr 88 Accused’s EAOS.

Additionally, the record of trial supports the following findings:

2 May 1988 Charges referred to SPCM. 6 May 1988 Charges served on accused. 13 & 19 May, Article 39a, UCMJ, ses1 June 1988 sions.

In accordance with R.C.M. 905(d), the military judge stated the following essential findings on the record:

(1) Pursuant to the “Memorandum of Understanding between the Department of Justice and the Department of Defense Relating To The Investigation and Prosecution of Certain Crimes” (MOU), Naval authorities believed the Department of Justice, acting through the United States Attorney for the Eastern District of Virginia, had primary jurisdiction over the offenses in question, and such jurisdiction was asserted by the United States Attorney until specifically relinquished to the Navy about 24 July 1987.

(2) GMGC Berrey’s expiration of active obligated service (EAOS) was 29 April 1988.

(3) Except within the context of the [speedy trial] motion, GMGC Berrey has not made a request for speedy disposition of his case.

(4) No pretrial restraint has been imposed on GMGC Berrey.

(5) The classification review process extended from 29 September 1987 to 29 February 1988, a period of 153 days. Classification review required a determination whether the case materials contained any classified information and, if so, an identification of each particular word or phrase, the redaction of which would render the document unclassified. This review was performed by an officer on the staff of Deputy Chief of Naval Operations (Plans, Policy, and Operations) (OP-06). This officer, for most of the period covered by this affidavit, was one of only two senior officers (both Naval Special Warfare Officers) in OP-604 which, as mission sponsor, had responsibilities for classification policy affecting Seal Team Six. He was considered the most qualified officer available to the cognizant original classification authority to conduct the classification review.

Besides classification review, the overall responsibilities of OP-604 included formulating Navy policy, developing plans, and monitoring operations for all Naval special warfare forces; and reviewing all war plans, staffing all joint actions, and providing oversight for sensitive Navy Programs. Also, during this period, OP-604 was the lead office on the OPNAV staff for the reorganization of the Naval special warfare force structure, which is part of the comprehensive changes imposed by recent legislation. As “Command assistant official” for COMNAVSPECWARCOM, OP-604 hosted numerous working groups, wrote many decision packages for the Chief of Naval Operations, and developed policy for the manning control and resource sponsorship of NAYSPECWARCOM. Additionally, OP-604 undertook numerous ad hoc responsibilities, at irregular but frequent intervals, for support of Persian Gulf operations, and other operations of a more sensitive nature. These operations were given priority over other current projects.

The OP-604 reviewing officer was not relieved of any of his normal duties to conduct the classification review, and was occupied only on a daily basis with matters of policy and operations often requiring immediate action. Several target dates for the completion of the classification review were missed because the OP-604 reviewing officer was too busy on other matters. The OP-604 reviewing officer had to discontinue review of the Chief Berrey package several times in order to assist the government with classification issues in other cases requiring a more immediate response.

There is no comprehensive classification guide upon which the OP-604 reviewing officer could rely. Several issues had to be addressed to higher authority for an original classification decision. The requirement to use secure means of communication complicated the classification review process. After the OP-604 reviewing officer sent out his completed product to the field attorneys, a number of additional days were required to clarify some matters. Appellate Exhibit XIII.

The military judge then stated his conclusions of law based upon his essential findings of fact. See United States v. Postle, 20 M.J. 632, 640 (N.M.C.M.R.1985).² He based these conclusions on two alternative theories of law. The primary theory was that the delay in the notification to the appellee of the preferred charges, under the circumstances of this case, was a denial of military due process because it interfered with a fundamental right and prejudiced the appellee. The alternate theory relied upon by the military judge embraced a concept of constructive notice to the accused of preferred charges. That is, since the accused is required to be notified of the preferral of charges against him under R.C.M. 308 “as soon as practicable,” the law will treat the day on which notification could have been practicably given, as though it had in fact been given, so as to start the speedy trial clock running for the purposes of R.C.M. 707. After conducting an R.C.M. 707 examination of the period of delay between the day of constructive notification and the day of trial, he found the appellee had been denied a speedy trial. Under either theory the military judge concluded that the charges had to be dismissed and he so ruled. Since we conclude that the military judge ruled correctly as a matter of law under the military due process theory, we will not discuss his constructive notice theory.³

In United States v. Clay, 1 U.S.C.M.A. 74, 1 C.M.R. 74 (1951) and United States v. Woods, 2 U.S.C.M.A. 203, 8 C.M.R. 3 (1953), the Court of Military Appeals discussed the concepts of military due process and general prejudice. In general, the Court held that a denial of a fundamental right was a denial of military due process which constituted prejudice per se and required reversal. Clay, 1 C.M.R. at 78. The Court in Woods, 8 C.M.R. at 7, declared that there exist substantial procedural requirements of such importance that, when denied, also amount to general prejudice and require reversal.⁴

To find a lack of military due process, two requisites must be met: “the existence of an act of Congress which grants a fundamental right to a military accused”; and “the denial of that right in the course of a court-martial proceeding.” United States v. Jerasi, 20 M.J. 719, 723 (N.M.C.M.R. 1985), aff'd 23 M.J. 162 (C.M.A.1986). This Court then stated: “Once both of these requisites are evidenced, the concept of ‘military due process’ demands a finding that the denial was per se materially prejudicial to the substantial rights of an accused. No search for prejudice is ever undertaken ... [because] denial of a congressionally created right is, under ‘military due process’, always materially prejudicial — as a matter of law.” Id.

The specific issue in this case is whether the military judge was correct as a matter of law when he found that there had been a prolonged, unjustified, and intentional delay by the Government in notifying appellee of the preferred charges and that that delay in notification resulted in a denial of military due process. If he was correct, then his dismissal of the charges was also correct.

First, in accordance with the principle announced in United States v. Burris, 21 M.J. 140 (C.M.A.1985), we find that the military judge’s essential findings of fact upon which he based his conclusions of law are “fairly supported by the record,” Marshall v. Lonberger, 459 U.S. 422, 432, 103 S.Ct. 843, 850, 74 L.Ed.2d 646, 658 (1983), and are not “clearly erroneous.” United States v. Middleton, 10 M.J. 123, 133 (C.M. A.1981). We therefore look to see whether his conclusions were correct as a matter of law.

Two of the military judge’s factual findings that significantly affect our determination that his ruling was correct as a matter of law are that the Government intentionally evaded “significant procedural requirements relating to a fundamental right of the appellee” and that the delay in notifying appellee of the preferral of charges against him was “prolonged and unjustified.” AE XIII at 3. We agree with the military judge that appellee has been denied military due process. “Not every regulation which deals with the administration of justice or with investigative procedures is designed to create rights enforceable by an accused____” United States v. McGraner, 13 M.J. 408, 415 (C.M. A.1982). In a situation such as this, however, where the Government deliberately delayed notifying the appellee of the charges preferred against him, as is required by Article 30(b), UCMJ, because it did not want to start the running of the speedy trial clock under R.C.M. 707, such intentional deferral of notification was a denial of a significant procedural requirement relating to the appellee’s fundamental right to a speedy trial. This is so because the President, in prescribing R.C.M. 707, chose the “notification of preferral of charges” as the triggering event to start the speedy trial clock. Thus, in its elevated status, the Article 30(b), UCMJ, requirement that such notification be given as soon as practicable, takes on greater procedural significance and becomes integrated into the R.C.M. 707 speedy trial scheme. Violation of this substantial procedural requirement, under these circumstances, constitutes error materially prejudicial per se to the substantial rights of the accused. Woods, 8 C.M.R. at 7, 8.

The requirement that the accused be notified of the preferred charges “as soon as practicable” does not necessarily mean that he be notified in each and every case as soon as the immediate commander is physically able to do so. There could exist, in any given case, legitimate reasons for the Government to withhold notification for an appropriate period because of exigent circumstances, such as where notification would interfere with an ongoing investigation by premature disclosure to the accused. Various other factual scenarios could also constitute good cause for delay in notification.⁵ Under such situations, the ultimate notification would still amount to notification as soon as practicable. Thus, it is not the mere decision made by the Government to defer notification that determines the timeliness of the notification, but rather whether the surrounding circumstances of the particular case justify any delay in the notification.⁶

We specifically reject the contention that the only remedy for the Government’s deferral of notification without justification is a continuance under R.C.M. 308(c). A continuance is the proper remedy except in a case, such as this, where speedy trial, a fundamental right, has been adversely affected by the failure to give notification as soon as practicable. This is supported by both Clay and Woods which equate denial of such fundamental rights or substantial procedural requirements that relate to fundamental rights with general prejudice— “prejudice per se”, “presumed prejudice”, “prejudice as a matter of law.” The remedy for such prejudice is dismissal of the charges. The reason being that the administration of general prejudice

is cradled in the notion — no more and no less — that there are elements of the judicial edifice of such overwhelming importance that they may be deemed structural members. It follows that these must be preserved at all costs, and that, when weighed against other values of a relatively more transitory character, must prevail____ Where conflict exists between the result in a particular case, on the one hand, and the service of a basic jural norm, on the other, then the former must give way to its competitor.

Woods, supra at 7. In this case, the right denied appellee was, in effect, the denial of the right to a speedy trial. Such a denial is a denial of a fundamental right and constitutes general prejudice. Hence, the remedy specified in R.C.M. 308(c) is insufficient in law. Dismissal of the charges is the only remedy in this case. See R.C.M. 707(e), MCM, 1984.

Accordingly, we uphold the military judge’s dismissal of Charges I — VIII; the Government’s appeal is denied. The record of trial is returned to the military judge for further proceedings not inconsistent with this decision.

Senior Judges COUGHLIN and RILEY concur.

1 . Charges I-VIII allege violations of Articles 81, 121 and 132, UCMJ. The military judge’s ruling did not affect Additional Charges I and II, which allege violations of Articles 107 and 134, UCMJ, respectively.

2 . See also United States v. Ruhling, 28 M.J. 586, No. 87 4185 (N.M.C.M.R. 20 December 1988) (discusses military judge’s compliance with Postle).

3 . Unlike the concurring opinion of Judge Rubens, we do not foreclose, under the proper circumstances, the validity of a constructive notice theory. Cf. Thomas v. Edington, 26 M.J. 95 (C.M.A.1988) (R.C.M. 707 must be read in conjunction with Article 30 and R.C.M. 308; however, the Court did not rely on constructive notice having determined that actual "notice” of preferral had occurred).

4 . For additional discussion of the concepts of “military due process” and "general prejudice,” see, e.g., United States v. Kaiser, 19 U.S.C.M.A. 104, 41 C.M.R. 104 (1969); United States v. Mickel, 9 U.S.C.M.A. 324, 26 C.M.R. 104 (1958); United States v. Jerasi, 20 M.J. 719 (N.M.C.M.R. 1985); Buescher and Zillman, “The Court of Military Appeals: A Survey of Recent Decisions", 55 Mil.L.Rev. 187 (1972); Moyer, Justice and the Military, sec. 2-803 (1972).

5 . On the other hand, the Government must be prepared to justify any delay, even though, for example, such delay is necessitated by its compliance with regulatory procedures. Furthermore, the Government is accountable for the delay caused by other branches, agencies, and subdivisions of the Government outside of the Department of Defense. See United States v. Kuelker, 20 M.J. 715 (N.M.C.M.R.1985).

6 . Cf. United States v. Angel, 28 M.J. 600, No. 87-2893 (N.M.C.M.R. 15 February 1989) ("... [W]e are not bound by the Government’s assertions as to when notice occurred in a given case.’’).