United States v. McGinn

17 M.J. 592, 1983 CMR LEXIS 714
CourtU S Coast Guard Court of Military Review
DecidedNovember 30, 1983
DocketCGCMS 23698; Docket No. 852
StatusPublished
Cited by4 cases

This text of 17 M.J. 592 (United States v. McGinn) is published on Counsel Stack Legal Research, covering U S Coast Guard Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. McGinn, 17 M.J. 592, 1983 CMR LEXIS 714 (cgcomilrev 1983).

Opinion

DECISION

MORGAN, Chief Judge:

Quartermaster Third Class William J. McGinn, III, USCG, was tried by a special court-martial comprised of a military judge and members 16-18 February 1982. The accused was charged with violating Coast Guard Regulations, two offenses of conspiracy, larceny, accessory after the fact, receiving stolen property and misprison of felony, all arising from the theft of a quan[593]*593tity of seized contraband marijuana, in violation of Articles 92, 81, 121, 78 and 134 Uniform Code of Military Justice, 10 U.S.C. §§ 892, 881, 921, 878 and 934. He was also charged with two offenses of unauthorized absence for periods, respectively, of 2 days and 4 days in violation of Article 86, UCMJ, 10 U.S.C. § 886, and with missing the movement of his ship, USCGC COURAGEOUS, through design concurrently with one of the unauthorized absence offenses in violation of Article 87, UCMJ, 10 U.S.C. § 887. The accused pleaded guilty to one offense of unauthorized absence for a period of two days in violation of Article 86, UCMJ, and not guilty to all other charges and specifications.

Quartermaster Third Class McGinn was convicted of violating Coast Guard Regulations and Article 92, UCMJ, by possessing and using marijuana on 23 October 1981 to 28 October 1981, of accessory after the fact in violation of Article 78, UCMJ, by aiding one Kuhn to avoid apprehension for stealing marijuana on 23 October 1981, of receiving a quantity of stolen marijuana on 23 October 1981 in violation of Article 134, UCMJ, of two unauthorized absence offenses in violation of Article 86, UCMJ, and of missing the movement of USCGC COURAGEOUS through design in violation of Article 87, UCMJ. The members sentenced the accused to be confined at hard labor for three months, to forfeit $200.00 per month for three months, to be reduced to pay grade E-l and to be discharged from the service with a bad conduct discharge. The findings of guilty and the sentence were approved by the convening authority, an officer exercising general court-martial jurisdiction.

Appellate defense counsel contends that the accused has been prejudiced by inordinate post-trial delay in the disposition of his case, that the staff legal officer’s review was inadequate for failing to consider the disparity between the sentence adjudged in Petty Officer McGinn’s case and the sentences adjudged in other closely related cases and that trial counsel improperly introduced the views of accused’s Commanding Officer and the District Commander who convened the court-martial into the proceedings during his argument on the findings. Appellate defense counsel also questions the appropriateness of the approved sentence.

Sentence was adjudged 18 February 1982. The 310 page record was authenticated by the military judge 31 May 1982 and examined by the defense counsel 17 June 1982. The record was received in the Seventh Coast Guard District Legal Office for review pursuant to Article 65(b), UCMJ, 10 U.S.C. § 865(b), and paragraph 85, Manual for Courts-Martial, 1969 (Rev.), on 30 June 1982. In the meantime, the accused had completed serving his sentence to confinement for three months.

On 1 July 1982 the record of trial was referred to LT Brannon, an assistant legal officer of the Seventh Coast Guard District, for preparation of a draft staff legal officer’s advice. That same day LT Brannon commenced twenty days authorized leave. He represented the government at an Article 32, UCMJ, investigation on 22 and 23 July 1982 and on 24 July he was appointed trial counsel for one general court-martial and six special courts-martial. LT Bran-non’s activities for the remainder of July and the month of August 1982 are not accounted for but he was on temporary additional duty at Jacksonville, Florida on 1 and 2 September and finally delivered the record of trial and a draft advice to the staff legal officer on 20 September 1982.

Due to the disqualification of the acting staff legal officer because he had served as trial counsel, LCDR Henkel, another assistant legal officer, was designated by the convening authority on 13 July 1982 to act as his legal officer for the review of the appellant’s case. No accounting for LCDR Henkel’s activities has been provided from his designation to act as the legal officer in the case until he completed his review of the record and preparation of his advice on 1 October 1982. A copy of the designated legal officer’s review was delivered to the defense counsel on 13 October 1982 in accordance with the requirements of U.S. v. Goode, 1 M.J. 3 (C.M.A.1975) and defense [594]*594counsel’s response is dated 19 October 1982. The convening authority took action on the record 9 November 1982, some 264 days after the sentence was adjudged.

Appellate defense counsel have pointed out the remarkable similarity between the post-trial delay in this case and in U.S. v. Clevidence, 14 M.J. 17 (C.M.A.1982) which involved post-trial delay of 313 days from the date sentence was adjudged until the supervisory authority took action on the record. As in that case, the record was not authenticated until after the appellant had served his sentence to confinement. Also as in Clevidence the delay preceding the convening authority’s action on the record is neither explained nor excused. A chronology of significant events in the processing of the case and a resume of the normal responsibilities and the workload of various lawyers on the convening authority’s staff has been filed. But no justifiable basis for the delay recognized by the Court of Military Appeals such as operational demands, a combat environment, convoluted offenses or similar circumstances has been offered. See U.S. v. Marshall, 22 U.S.C.M.A. 431, 47 C.M.R. 409 (1973); U.S. v. Stevenson, 22 U.S.C.M.A. 454, 47 C.M.R. 495 (1973); U.S. v. Larsen, 23 U.S.C.M.A. 564, 50 C.M.R. 783 (1975).

In Clevidence there was a delay of 200 days from sentencing until the record of trial was authenticated, another 49 days delay until the convening authority acted on the record and another 64 days delay until the supervisory authority took action. In appellant’s case the record of trial was authenticated 102 days after sentence was adjudged and 162 more days passed until the convening authority approved the findings of guilty and the sentence. During most of that time — 30 June 1982 until 1 October 1982 — further action awaited completion of the staff legal officer’s 18 page review which was not complicated by any difficult legal or evidentiary issues.

The appellant in a letter attached to his brief has asserted the same prejudice claimed by Clevidence, namely, that while on appellate leave his ability to obtain employment has been impaired by the fact that he has no discharge papers. We were not impressed by Clevidence’s claim of prejudice. See U.S. v. Clevidence, 11 M.J.

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Cite This Page — Counsel Stack

Bluebook (online)
17 M.J. 592, 1983 CMR LEXIS 714, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mcginn-cgcomilrev-1983.