United States v. Laminman

41 M.J. 518, 1994 CCA LEXIS 74, 1994 WL 679994

• Court: U S Coast Guard Court of Criminal Appeals
• Decided: October 14, 1994
• Docket: CGCMS 0081; Docket No. 001-62-94
• Status: Published

Opinions

BAUM, Chief Judge:

This is a Government appeal of the trial judge’s dismissal of all charges and specifications for lack of speedy trial. The defense had moved for dismissal based on violations of Article 10, UCMJ,¹ and Rule for Courts-Martial (RCM) 707. After considering written pleadings, hearing witnesses, and argument by counsel, the judge made findings of fact incorporating the undisputed portions of a chronology of events submitted by the Government.² That chronology reveals that the Accused was under one form of restraint or another continuously from 10 December 1993 until the trial began on 25 April 1994, for a total of 137 days. Nevertheless, the judge found that the trial had commenced within the 120 days allowed by RCM 707, after subtracting 21 days for which the Government was deemed not accountable as a result of delay initiated by the defense. The Government contended it was not accountable for other days also, which the defense disputed. However, the judge concluded that even by the Government’s own calculations there were 109 days of delay while the accused was confined. Although she found intervals that were reasonable, the judge concluded that, overall, there was a lack of reasonable diligence by the Government in bringing the accused to trial, necessitating dismissal under Article 10. It is this decision that the Government has appealed pursuant to Article 62, 10 U.S.C. § 862.

I

The Standard of Review for Government Appeals

Under the terms of Article 62, this Court in this instance may act only with respect to matters of law. Our standard of review is set forth in U.S. v. Burris, 21 M.J. 140, 144 (CMA 1985), which also involved a government appeal of a dismissal for lack of speedy trial:

When a court is limited to reviewing matters of law, the question is not whether a reviewing court might disagree with the trial court’s findings, but whether those findings are “fairly supported by the record.” Marshall v. Lonberger, 459 U.S. 422, 432, 103 S.Ct. 843, 850, 74 L.Ed.2d 646 (1983), quoting 28 U.S.C. § 2254(d)(8). “[T]o give due deference to the trial bench,” a determination of fact “should not be disturbed unless it is unsupported by the evidence of record or was clearly erroneous.” United States v. Middleton, 10 M.J. 123, 133 (CMA 1981).

II

Article 10 Speedy Trial

Article 10 provides: ‘When any person subject to this chapter is placed in arrest or confinement prior to trial, immediate steps shall be taken to inform him of the specific wrong of which he is accused and to try him or to dismiss the charges and release him.” As noted in U.S. v. Kossman, 38 M.J. 258, 259 (CMA 1993), “the drafters of Article 10 made ‘no provision as to hours or days’ in which a case must be prosecuted----” Without such guidance, the courts grappled for years with determining exactly what Article 10 required, finally settling upon a “reasonable diligence” test as articulated in U.S. v. Tibbs, 15 USCMA 350, 353, 35 CMR 322, 325 (1965):

It suffices to note that the touch stone for measurement of compliance with the provisions of the Uniform Code is not constant motion, but reasonable diligence in bringing charges to trial. Brief periods of inactivity in an otherwise active prosecution are not unreasonable or oppressive.

Then, in 1971, The Court of Military Appeals decided to replace that test with one setting out a finite number of days, thereby, filling the gap left by the initial drafters of Article 10. This was accomplished in U.S v. Burton, 21 USCMA 112, 44 CMR 166 (1971), which created a presumption of an Article 10 violation when pretrial confinement exceeded three months. That presumption placed a heavy burden on the Government to show diligence in proceeding to trial. Absent such a showing, charges were to be dismissed. Later, in U.S. v. Driver, 23 USCMA 243, 49 CMR 376 (1974), the three-month period was clarified to mean 90 days.

Ten years later, the Manual for Courts-Martial, 1984, incorporated in RCM 707(d) and (e) a modified Burton/Driver rule which discarded the rebuttable presumption of an Article 10 violation, by simply requiring dismissal of charges if pretrial confinement exceeded 90 days, after subtracting certain expressly provided for exempted periods. That Rule allowed 120 days of delay in all other cases not involving pretrial confinement. Subsequently, in 1991, RCM 707 was changed in several ways, one of which was to delete the 90-day provision for confinees and to include them among those subject to 120 days of delay. The remedy was also modifled to allow for dismissal with, or without, prejudice, depending on whether certain criteria were met.

On 29 September 1993, the speedy trial rules for those in arrest or confinement prior to trial were again modified by U.S. v. Kossman, supra, which expressly overruled Burton/Dñver. By that action, the Court appears to have reinstituted the pre-Burton standard of “reasonable diligence” as articulated in the previous quote from U.S. v. Tibbs, supra. In the process, however, the Court declared with respect to RCM 707 that the President, in promulgating that Rule, cannot overrule or diminish an Act of Congress or diminish the Court of Military Appeals’ interpretation of such an Act. The Court went on to say:

Thus, in the area of subconstitutional speedy trial, Article 10 reigns preeminent over anything propounded by the President. If the requirements of Article 10 are more demanding than a presidential rule, Article 10 prevails. Merely satisfying lesser presidential standards does not insulate the Government from the sanction of Article 10.

U.S. v. Kossman, 38 M.J. at 261. The Court went on to note that the 102-day delay in that case apparently satisfied RCM 707, but the question of Article 10 compliance remained to be answered on remand.

We have a similar situation in this case. RCM 707 was determined by the judge to have been satisfied, but Article 10 was found to have been violated. In reaching her conclusion with respect to Article 10, the judge said: “The test as I see it is reasonable diligence by the government pursuing the case per U.S. v. Kossman, 38 M.J. 258, specifically, Id. at 262, in which the Kossman court cites U.S. v. Tibbs, 15 U.S.C.M.A. 350, 35 C.M.R. 322, a 1965 case. By that standard, I am going to dismiss the charges.” R. 3 (April 26, 1994). Since all of the events in this case occurred after U.S. v. Kossman, we agree that the judge correctly used the law before Burton, as revived by Kossman. Moreover, as reaffirmed by Kossman at 38 M.J. at 262, the dismissal which she ordered for violation of Article 10 is with prejudice.

Ill

The Burden of Proof

Before determining whether the judge’s conclusion is supported by the record and not clearly erroneous, we must first look to see who had the burden of proof on the motion to dismiss. At trial, the prosecution stated that the Government had the burden with respect to all motions that had been raised, which included the speedy trial motion, and the defense concurred. R. 124 (April 25, 1994). Accordingly, under both counsels’ interpretation of procedural requirements, a failure of the evidence would be to the Government’s disadvantage, not the defense’s.

The Government argued before this Court that, notwithstanding the trial counsel’s acceptance of the burden with respect to this matter, the judge erred as a matter of law in applying such a procedural rule, rather than the general rule annunciated in RCM 905(c)(2)(A): that the burden of persuasion on any factual issue necessary to the resolution of a motion is on the moving party. The Government acknowledges that RCM 905(c)(2)(B) clearly places the burden of persuasion upon the prosecution with respect to a motion to dismiss for denial of the right to speedy trial under RCM 707, but argues that this exception to the general rule does not apply to motions to dismiss for violations of Article 10 since Kossman has removed such issues from the ambit of RCM 707. We disagree. Whatever the effect of Kossman, it has not been to change the longstanding procedural rule on burden of proof or persuasion for speedy trial motions.

The President, in the exercise of his Article 36 authority to prescribe procedural rules, placed the burden on the Government twenty-five years ago in the 1969 Manual for Courts-Martial (Revised) [MCM 1969]. Both paragraphs 68i and 215e, MCM 1969, relate to speedy trial motions. Paragraph 68i states: ‘When the accused moves for a dismissal of certain charges on the ground that there has been an unreasonable delay as to those charges, the prosecution has the burden of establishing that the delay was not unreasonable.” Paragraph 215e states: “When the accused’s right to a speedy trial is in issue, the prosecution has the burden of accounting for the time which it took to bring the accused to trial.” In 1984, this exception to the general rule was incorporated into RCM 905(e), according to the analysis of Rule 905 in Appendix 21, MCM 1984. Moreover, when RCM 905(c)(2)(B) refers to a denial of the right to a speedy trial under RCM 707, it is a shorthand way of relating to all speedy trial rights. This interpretation is confirmed by the analysis of RCM 707 in Appendix 21 which says that, “The [RCM 707] rule is intended to protect the speedy trial rights under the sixth amendment and Article 10.... ” Accordingly, it is our conclusion that RCM 905(c)(2)(B) places the burden of proof on the prosecution whenever the defense moves to dismiss for lack of speedy trial, whether the motion is framed under the terms of Article 10 or RCM 707. This procedural rule was unaffected by the Kossman decision.

IV

The Trial Judge’s Findings

In assessing the trial judge’s findings of fact, we must look first at the offenses, when they arose, and how the Government proceeded once they became known. The charges include assault of the Accused’s wife by grabbing her hair and arm and throwing her around the room; communicating a threat to kill his wife; wrongful appropriation of a government motor vehicle; violation of a lawful general regulation by wrongfully having in his possession in a Coast Guard unit dangerous weapons, to wit: a Colt .44 handgun and forty eight rounds of .44 caliber ammunition, a sheath knife with a six and one half inch blade, and two switchblade knives with four inch blades; and wrongful making and possessing three pipe bombs at the accused’s private residence in Upper Marlboro, Maryland. The pipe bomb and other weapons offenses were also set out in several alternative specifications. All of the charged offenses are alleged to have occurred on 10 December 1993, which is also the date the Government became aware of the offenses, after the Accused’s wife made accusations against him to Bolling Air Force Base security police. Upon notification by the Air Force, Coast Guard Intelligence (CGI) agents took the Accused from his duty station, the Coast Guard Exhibit Center in Forestville, Maryland, to Bolling Air Force Base, Washington, D.C., for questioning on 10 December. When the Air Force police were finished, the Accused was interviewed further on 10 December at CGI’s Washington Field Office. Also that day, CGI agents picked up a .44 caliber gun and ammunition, along with a sheath knife and two switchblade knives, found by a supervisor at the Exhibit Center. That evening, the Accused was taken to Prince George’s County, Maryland, for an interview by members of the County Fire Department. Those authorities obtained a search warrant from a Prince George’s County judge to search the Accused’s home for pipe bombs, which were found and neutralized by the Fire Department’s bomb squad. Thereafter, the Accused was arrested, charged, and held on $10,000 bond in Prince Georges County in the early morning hours of 11 December 1994.

At that point, investigation of the charged offenses was substantially complete. There were other accusations by the Accused’s wife of assault on her in July and August of 1993 in Hamilton, Ohio, and Alexandria, Virginia, which, according to the Government, required further investigation, but the resultant specifications were withdrawn before trial commenced on 25 April 1994. In any event, the Government was aware of all allegations against the accused by 11 December 1993 when he was charged and jailed by civilian authorities in Maryland. On 13 December, those authorities released the Accused to the Coast Guard, whereupon he was transported to the National Naval Medical Center (NNMC), Bethesda, Maryland, for a psychiatric evaluation. On 15 December, the Accused was released from NNMC and was placed by the Coast Guard in pretrial confinement at the Naval confinement facility in Philadelphia, Pennsylvania. Subsequently, on 10 January 1994, he was transferred to the Marine Brig at Quantico, Virginia, and remained there until his trial commenced on 25 April 1994.

The judge’s chronology of events, which she found as fact³, is attached as an Appendix. The chronology reflects that charges were preferred on 10 January 1994, a defense counsel detailed on 21 January, and an officer appointed on 3 February to conduct an Article 32 investigation. The Article 32 hearing, originally contemplated for 15 February, was delayed until 8 March. The initial delay was requested by defense counsel until 1 March, but at that point the investigating officer and Government counsel were not available until 8 March, prompting the convening authority to approve the entire period of delay, which the judge charged to the defense. The investigation was held on 8 March and the report completed the next day, but the convening authority did not receive the report until six days later on 15 March, after it was placed in the regular mail system.⁴ The Article 34 advice was provided the convening authority on 22 March and charges were referred to a general court-martial on 8 April, after the defense counsel submitted a written demand for speedy trial the day before. On 11 April, a docket request was submitted, an RCM 802 conference held, and the trial set for 25 April, the date requested by the Government.

At trial, no evidence was proffered by the Government explaining the delays in preferring charges, detailing of a defense counsel, appointing of an Article 32 investigating officer, or the setting of an initial date for the Article 32 hearing. In that regard, the judge had the following to say in her written “Article 10: Preliminary Findings”—

I find that the period from 10 December to 10 January was used for investigation and drafting charges.

I find that the period from 11 January to 3 February was used to decide to conduct an Article 32 Investigation, find an officer to conduct that investigation, and assign a Government representative, as well as to detail Defense Counsel. There is no evidence of what was involved in those activities; I have no reason to believe that they were unusually complicated or that officials making the decisions were unusually unavailable due to operational or other pressing matters. Further, there is no evidence of the reason(s) why the Article 32 Investigation was scheduled for 15 February, twelve days later.

Appellate Exhibit XII at p. 4 (emphasis added).

Before submitting her written findings, the judge stated on the record that, “the total picture is really one that I can’t find is marked by reasonable diligence.” R. 4 (April 26, 1994). The basis for that conclusion was stated in the following manner:

So two weeks to put on a court martial is not bad, after he [the Accused] asked for the speedy trial, but the period before that is what troubles me.

The thing is that the meager evidence on the reasons for why it took so long — I mean, it is very meager evidence, and it does not convince me that the government was pursuing the case with reasonable diligence.

R. 5 (April 26, 1994).

The fact that the Government failed to present evidence explaining the reasons for the various delays in charging the accused, ordering the Article 32 investigation, detailing a defense counsel, and in commencing the Article 32 hearing at the outset, left the trial judge without evidence to conclude that the Government acted with reasonable diligence during these periods. Of significance, was the judge’s express finding concerning a period in excess of a month, from 11 January to 15 February. In that regard, she stated: “I specifically find that there is insufficient evidence to support a conclusion that the Government was pursuing the case with reasonable diligence.” Appellate Exhibit XII at p. 5. That, coupled with periods from 10 December to 10 January and 15 March to 8 April, and the failure to expeditiously transmit the Article 32 report, led the judge to her ultimate finding, “that the Government did not pursue this case with reasonable diligence.” Id.

Since the Government had the burden to produce evidence demonstrating due diligence, its failure to meet that burden justified the judge’s adverse findings and resultant dismissal of charges. Consequently, there is no basis for this Court to disturb the judge’s findings and the ruling that followed.⁵ We cannot say that the judge erred as a matter of law in granting the defense motion to dismiss for violation of Article 10, UCMJ. The Government’s appeal is denied.

Judge Wiese concurs.

1 . 10 U.S.C. § 810; hereinafter Article refers to the Articles of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 801 et seq.

2 . The better practice would have been for the parties to enter into a stipulation of fact as to the undisputed portions and then to present evidence on those relevant matters upon which there was disagreement. However, in light of our disposition of this case, we need not probe further what is sufficient evidentiaiy basis for a speedy trial motion.

3 . See the discussion at footnote 2.

4 . For the period after completion of the Article 32 Investigation, the judge gave particular attention to the fact that the investigative report was not transmitted by overnight delivery service so that it would have reached the convening authority at least two working days earlier. In her ultimate findings, the judge concluded that failure to transmit the report expeditiously constituted a lack of reasonable diligence and evidence of a non-diligent, or negligent, attitude on the part of the Government during the case. At first glance, this conclusion might appear to place an undue emphasis on two days out of an overall delay of 109 days, for which the Government was accountable. It must be stated, however, that at the time the investigative report was completed the Accused had already been confined for 90 days, or as the judge put it, “about 64 days of confinement, even by the government’s calculation". R. 4 (April 26, 1994). In the eyes of the trial judge, expedited action was called for at that point, and we agree that such a conclusion is entirely reasonable and supported by the evidence. Contrary to the views expressed by Judge Bridgman in his dissent, we do not believe that requiring expedited action at some point necessarily conflicts with the standard in U.S. v. Tibbs, supra. When an accused has been confined for a lengthy period, as in this case, reasonable diligence may call for expeditious processing. In this regard, we do observe that the Article 32 officer expeditiously completed the report in one day, which certainly reflected an appreciation for the need for dispatch.

If the failure to transmit the report by a means more rapid than ordinary mail were the only indication of lack of reasonable diligence, we would have to find the dismissal of charges clearly erroneous. In our view, however, the judge saw that shortcoming as merely reflecting an attitude by the Government inconsistent with reasonable diligence, which permeated the entire process. In effect, that is what she said:

I think that the nondiligent attitude of the government is really exemplified by the six-day transmittal of the 32 report.... Expeditious handling would be indicated at that point with due regard for the fact that the accused was confined at the time.

Now that two days I am talking [about] in and of itself is not so significant, but it just shows you that the government had no regard for the fact that the man was confined.

R. 6 (April 26, 1994). We believe this quote is more indicative óf the judge's intended meaning than the literal reading Judge Bridgman has given to another quote.

5 . Judge Cox said it best in his concurring opinion in U.S v. Vangelisti, 30 M.J. 234, 241 (CMA1990): "if a military judge’s finding of fact is supported by the evidence of record (or lack thereof), then it shall not be disturbed on appeal taken under Article 62, Uniform Code of Military Justice, 10 USC § 862. United States v. Burris, 21 M.J. 140 (CMA1985).” That is exactly the situation we have here, findings by the judge that are supported by a lack of evidence of reasonable diligence by the government. Rather than deny the government's appeal on this basis, Judge Feamow's dissent suggests that a hearing of the kind utilized in U.S. v. DuBay, 17 USCMA 147, 37 CMR 411 (1967) would be appropriate to develop missing evidence. To the contrary, we believe that use of a DuBay hearing in this manner to perfect a government appeal is singularly inappropriate. Again, Judge Cox's words from U.S. v. Burris, 21 M.J. at 145 have special relevance:

The paucity of the record worked to the detriment of the government, because the prosecution had the burden of persuasion. * * * The Government failed to establish a proper record, and it is not for appellate courts to launch a rescue mission.