United States v. Givens

28 M.J. 888, 1989 CMR LEXIS 536, 1989 WL 73461

• Court: U S Air Force Court of Military Review
• Decided: June 23, 1989
• Docket: ACM 27491
• Status: Published

Opinions

DECISION

KASTL, Senior Judge:

In the early part of this century, there was a comic strip named “Alphonse and Gaston.” The two excessively polite lead characters spent much time stuck in doorways after each had urged the other to go first: “After you, my dear Alphonse” and “After you, my dear Gaston.”

This speedy trial case presents an “Alphonse and Gaston” situation. Both Government and defense deferred to the other; each ultimately viewed the other as accountable for the time delays involved; neither seized the initiative and took charge. As a result the appellant was not brought to trial within 120 days after preferral of charges as mandated by R.C.M. 707(a). Guidance from the Court of Military Appeals in United States v. Cook, 27 M.J. 212, 214 (C.M.A.1988) and United States v. Carlisle, 25 M.J. 426, 428 (C.M.A.1988) makes one thing crystal-clear: the Government is responsible for unexplained delays. Bound by this principle, we reverse and order all charges dismissed.

Factual Setting

Prior to pleading guilty to larceny, wrongful appropriation, and possession of cocaine, violations of Articles 112a and 121, UCMJ, 10 U.S.C. §§ 912a, 921, Senior Airman Givens moved to dismiss all charges and specifications on the basis of denial of a speedy trial. A total of 201 days had elapsed between preferral of charges and commencement of trial. All parties agree that the 13 day period from 9 March (when charges were preferred) to 22 March 1988 (when Captain A was detailed to represent Givens) are the key to resolving this dispute.

This case was tried at Norton Air Force Base, California, where Captain Y was area defense counsel. Y was separating from the service; accordingly, he advised Lieutenant Colonel R, the staff judge advocate, that he would be unable to defend Givens and three others whose trials were upcoming.

At trial, Lieutenant Colonel R revealed the Alphonse and Gaston nature of the case:

Captain [Y] said words to the effect I can’t do the Article 32 investigation because I can’t defend Sergeant Givens. We are going to have to get another defense counsel. Now, that in my mind infers that the defense community is not ready to proceed because they don’t have any counsel assigned. Did he say words directly I am requesting a delay in the Givens case, I don’t recall whether he said those words or not probably not [sic]. He surely was conveying the message to me that we were not prepared to proceed because Givens is unrepresented, I can’t represent him.

In addition, Lieutenant Colonel R informed his general court-martial convening authority’s staff judge advocate that Captain Y had orally requested delays in the hearings and that R considered “all time to be approved defense requested delays for chronology purposes.”

Captain Y’s recollections differ from those of Lieutenant Colonel R. Y indicated in stipulated testimony that he was “certain he never requested a delay” but did make arrangements to obtain counsel for the appellant. Captain A, the appellant’s trial defense counsel, learned of her being detailed on 22 March 1988.

The Article 32 hearing was scheduled for early April. Various difficulties were encountered; their nature is not significant to disposition of the speedy trial issue. In any event, the Article 32 hearing was finally completed on 17 May.

As stated earlier, the appellant moved at trial to dismiss all charges and specifications due to denial of a speedy trial. The military judge ultimately denied the motion. She tentatively found the Government to be responsible for 124 days, but cautioned that her calculations were based on “raw numbers.” She then adjusted the data to more accurately represent — in her view — a full appreciation of the situation. The military judge reasoned that both sides must be accountable and that delays in detailing a new defense counsel must be factored in. As the military judge put it: “The defense establishment, knowing a person is anticipating court-martial charges and then knowing charges had been preferred, must be responsible for at least part of an initial delay that could have only occurred with their consent.” Noting that charges had been preferred on 9 March and Captain A was finally detailed on 22 March, the military judge opined that a defense counsel should have been detailed on 9 March. In a Solomon-like gesture, the military judge split the disputed time in two, finding half of this 14 day delay attributable to the defense.¹

As a result of her final calculations, the military judge held the prosecution accountable for a total of 117 days. Since this was under the 120 day rule established by R.C.M. 707, the defense motion was denied and trial proceeded.

Before us, the appellant renews his speedy trial contentions. We have examined the various subsections of R.C.M. 707 and find that none of them can salvage the Government’s case. Accordingly, after able appellate argument by both parties, we agree with the position of the appellant and dismiss.

Analysis Under R.C.M. 707(c)(3)

R.C.M. 707(c)(3) is crucial to resolving this case. That provision excludes delays resulting from a defense request or defense consent to delay. In the present case, we find that the evidence does not rationally support such an exclusion.

In United States v. Carlisle, 25 M.J. at 428, the Court of Military Appeals made a clear-cut, no-nonsense rule:

[Ejach day that an accused is available for trial is chargeable to the Government, unless a delay has been approved by either the convening authority or the military judge, in writing or on the record.

The rule was re-emphasized in United States v. Cook, 27 M.J. at 214.

Here, no such delay — in writing or on the record — was requested of or consented to by the appellant or approved by the convening authority or military judge.

We read the Court of Military Appeals cases which have interpreted R.C.M. 707(c)(3) to spell out the applicable standard in unmistakable terms:

—The “clock” runs against the Government absent something to the contrary in writing or on the record. Ibid.

—The burden is on the Government to bring an unconfined accused to trial within 120 days. United States v. Cook, 27 M.J. at 215 and United States v. Facey, 26 M.J. 421, 425 (C.M.A.1988).

—When an accused moves to dismiss for lack of speedy trial, the burden of persuasion is on the Government to make a proper record. Ibid, and United States v. Burris, 21 M.J. 140, 145 (C.M.A.1985).

—The Government has the power and the burden to prevent speedy-trial problems. United States v. Carlisle, 25 M.J. at 428 and United States v. Cherok, 22 M.J. 438, 440 (C.M.A.1986).

—A narrow exception may exist: Should the defense engage in misconduct, the accused may well be estopped from claiming lack of speedy trial. United States v. Burris, 21 M.J. at 144.

Our fellow service courts have construed this exclusion as well. We read these opinions to say that informal exchanges between the prosecution and defense, such as those which occurred here with Lieutenant Colonel R and Captain Y, cannot be considered delays at the request or with the consent of the defense as envisioned by R.C.M. 707(c)(3). See United States v. Brodin, 25 M.J. 580, 581 (A.C.M.R 1987) and cases cited; United States v. McCallister, 24 M.J. 881, 889-890 (A.C.M.R.1987); United States v. Butterbaugh, 22 M.J. 759 (N.M.C.M.R.1986); United States v. White, 22 M.J. 631, 634 (N.M.C.M.R.1986). See also United States v. Burris, 21 M.J. at 145 and Wittmayer, Rule for Courts-Martial 707: The 1984-Manual for Courts-Martial Speedy Trial Rule, 116 Military Law Review 221, 244 (Spring 1987).

R.C.M. 707(c)(5)

In scheduling oral argument on this case, we informed opposing counsel that we desired argument on whether a delay to obtain the Article 32 testimony of two Los Angeles police officers on the cocaine charge was an acceptable delay under R.C.M. 707(c)(5)(A). The record fails to convince us that the Government attempted to invoke the relevant mechanism of the R.C.M. to gain a delay. Accordingly, we cannot grant the Government relief upon this basis. See United States v. Cook, 27 M.J. at 214 n. 4; United States v. Kuelker, 20 M.J. 715 (N.M.C.M.R.1985); Wittmayer, supra, at 246.

R.C.M. 707(c)(6)

The Government suggested in oral argument that a period of time could be excluded because of the absence or unavailability of the accused. To the Government, Senior Airman Givens was “unavailable” in early March 1988 since he was not represented by counsel. R.C.M. 707(c)(6) appears limited to unauthorized absences, unavailability due to illness, and the like. See, e.g., United States v. Turk, 24 M.J. 277 (C.M.A.1987); United States v. Lilly, 22 M.J. 620 (N.M.C.M.R.1986); Duron v. Fleischman, 156 Ariz. 189, 751 P.2d 39 (App.1988) (parallel civilian rule; witness’ whereabouts unknown). See also Wittmayer, supra, at 246-248 and Annot., 46 A.L.R.Fed. 358, 369-370 (1980). Accordingly, we refuse to construe this section as providing a favorable exception to the Government on the present facts.

R.C.M. 707(c)(9)

Finally, it has been suggested that R.C. M. 707(c)(9) should be applied as a sort of “residual good cause” exception to the speedy trial rule. We believe the Army and Navy-Marine Corps Courts of Military-Review have appropriately adopted a restrictive reading of R.C.M. 707(c)(9) in United States v. Durr, 21 M.J. 576 (A.C.M.R.1985) and United States v. Lilly, 22 M.J. at 620. The present facts do not reasonably permit us to find this exception. As we ourselves suggested in United States v. Miniclier, 23 M.J. 843, 847 (A.F.C.M.R.1987), a “lesser standard could allow the exception to devour the rule.” See Wittmayer, supra, at 249.²

The Future of Speedy Trial

Judicial amplification of the speedy trial rules within R.C.M. 707 places a new, perhaps onerous burden on staff judge advocates. There are many who may wish to resist what is required by the precedents, feeling that dismissal of charges destroys the very system they are sworn to uphold and has little to do with a fair, accurate outcome. On the other hand, many could argue that an efficient Government must bring an accused to trial with dispatch and —failing that — a prophylactic rule of dismissal is appropriate to deter future delays. We believe the Court of Military Appeals has spoken and we must honor its guidance.

This was a case where the time simply got away from the parties. While we do not see our role as that of trainer to younger judge advocates, this case can be a useful vehicle to remind all concerned of the “basics” of an efficient military practice. Accordingly, we offer several observations which may be of service — particularly to trial-level personnel and novice staff judge advocates.

1. “Alphonse and Gaston” tactics will not do; it is the duty of the Government to press forward. As the Court of Military Appeals noted in United States v. Carlisle, 25 M.J. at 428, the Government possesses the power and carries the burden to prevent speedy trial problems. Furthermore, staff judge advocates should not bank on gaining more time due to scheduling difficulties. As the Navy-Marine Corps Court commented in United States v. Johns, 21 M.J. 819, 821 (N.M.C.M.R.1985), the 120-day timeframe is designed to permit one to deal with the realities of professional and military life. We note that the Court of Military Appeals quoted with approval in United States v. Burris, 21 M.J. at 144 its earlier pre-Rules case of United States v. Wolzok, 1 M.J. 125 (C.M.A.1975). The Wolzok case stands for the proposition that docketing delays generally are attributable to the Government. We believe that other pre-Rules cases such as United States v. Marshall, 22 U.S.C.M.A. 433, 47 C.M.R. 409 (1973) enjoy continued vitality. Marshall considered whether such reasons as a heavy workload or absence of a full compliment of trial counsel were sufficient to win additional time for the Government. Refusing to so rule, the Court commented that:

Defects in the drafting of charges, failure to secure statements of witnesses before their reassignment to other organizations at the same base, too few officers assigned to the preparation of the pretrial advice, illness or injury of the staff judge advocate and his assistant, and absence of the convening authority are all conditions or circumstances for which the Government is responsible and for which allowance was made in the establishment of the 3-month standard.

2. Have a “regular crew chief” and insure weekly (if not daily) meetings. The record of trial in this case shows that no one individual ultimately took responsibility; instead, there was a vague accountability shared by the staff judge advocate, the Government representative at the Article 32, the Chief of Military Justice, and the Investigating Officer. Judge Cox spoke directly to this matter in United States v. Carlisle, 25 M.J. at 428 when he stated that it is mandatory to have a “must go or action due date” for each court-martial case.

3. Get delays in writing. We have no doubt that Lieutenant Colonel R was being accommodating to Captain Y, who was processing out of the Air Force. What occurred was a good-faith semantic “disconnect.”

Unfortunately for the Government, the matter must be resolved in favor of the accused per Cook and Carlisle. It appears, then, that the days of “gentlemanly scheduling” applauded in United States v. White, 22 M.J. 634 n. 5, are over. The Court of Military Appeals, writing in United States v. Burris, 21 M.J. at 144, has indicated that “docketing delays are generally attributable to the Government.” See also United States v. McCallister, 24 M.J. at 889.³

4. Don’t prefer charges until you’re ready. In this case, with no pretrial confinement, the Government preferred charges eight days before it had laboratory reports in hand concerning the accused’s drug use. In addition, the Government knew that the local area defense counsel, Captain Y, was getting out of the Air Force. We can discern no practical reason to charge this accused at that time.

5. Anticipate summer rotations and transfers. Talk to the defense and insure that nothing slips.

Conclusion

Ultimately, the holdings in Carlisle and Cook make the burden a difficult one for the Government. Yet perhaps the wave of the future can be seen in the final argument of Captain A, the trial defense counsel, before the military judge: “The 120 days are there for a purpose. They aren’t there for people to mess around, they are there to get things accomplished” and “The Government is responsible for moving things along.”

The findings of guilty and the sentence are set aside. The charges and specifications are dismissed.

1 . It appears the military judge erred slightly in her computation. The duration is 13 days as opposed to 14, given the counting method set forth in R.C.M. 707(b)(1). See United States v. Butterbaugh, 22 M.J. 759, 762 (N.M.C.M.R.1986).

2 . Might United States v. Higgins, 27 M.J. 150 (C.M.A.1988) permit a delay such as that in the present case? In Higgins, the officer-appellant tendered his resignation and its processing occurred outside the local command. The Court of Military Appeals held that the period when the matter was outside the local command was excludable from Government accountability as a delay for good cause under what is now R.C. M. 707(c)(9). We decline to so find in the present case. Higgins was premised on a situation where there is “absent any allegation or showing of government foot-dragging.” United States v. Higgins, 27 M.J. at 154. Here, the Government did not have its evidence from the laboratory on the cocaine offense until eight days after it had preferred charges. Moreover, the Article 32 Investigating Officer found the evidence incomplete upon first analysis. Finally, the Government has been unable to show any reasonable explanation as to why the Article 32 investigation was scheduled in early April but not completed until 17 May.

3 . We readily concede the fact that the staff judge advocate does not "superintend” the defense community under modern Air Force practice. See AFR 111-1, Military Justice Guide, paragraph 8-3a (30 September 1988). How, then, should we view the unlikely event that the staff judge advocate might not obtain defense cooperation? In the first place, we have serious doubts that the defense community would not, as officers of the court, be fully cooperative in providing counsel for accuseds needing such help or memorialize a delay request in writing. Moreover, the Court of Military Appeals has already suggested the defense would not be able to engage in sharp practices and then claim lack of speedy trial. United States v. Burris, 21 M.J. 140, 144 (C.M.A.1985). Finally, in the event counsel was not forthcoming, we note the Army Court of Military Review’s provocative expansion upon United States v. Carlisle, 25 M.J. 426 (C.M.A.1988). Carlisle holds that each day an accused is available for trial will be charged to the Government unless a delay is approved by either convening authority or military judge. In United States v. Longhofer, A.C.M.R. 30 June 1988 (unpub.), cited in Army Lawyer, p. 46 (September 1988), the Army Court found that the Article 32 investigator could grant defense delays because he was acting as the convening authority's representative.