United States v. Mladjen

19 C.M.A. 159, 19 USCMA 159, 41 C.M.R. 159, 1969 CMA LEXIS 601, 1969 WL 6317

• Court: United States Court of Military Appeals
• Decided: December 24, 1969
• Docket: No. 22,133
• Status: Published

Opinions

Opinion of the Court

Quinn, Chief Judge:

The accused was convicted by a general court-martial convened in Okinawa of a number of offenses in violation of the Uniform Code of Military Justice. His sentence extends to a dishonorable discharge, total forfeitures, and confinement at hard labor for four and one-half years. We granted review to consider his contention that he was denied a speedy trial.

From the chronology of events, which is set out in the Appendix, it appears that on December 22, 1967, the accused was apprehended for an unauthorized absence. He attempted to escape, but was recaptured. At the time of his apprehension, the accused had possession of a false identification card and carried a concealed weapon. He was confined in the Camp Butler Brig, and later in the Joint Services Stockade, on charges of unauthorized absence, wrongful possession of an identification card, impersonation of a noncommissioned officer, attempted escape, and carrying a concealed weapon. By January 4, 1968, these charges were referred to a special court-martial for trial. Before the case came up for trial, however, agents of the Office of Naval Intelligence conferred with the special court-martial authority. They were investigating the break-in of a Government warehouse and the larceny of pistols and eleven hundred identification cards that had taken place in November, and their investigation had produced substantial information implicating the accused in these offenses. As a result of his conference with the agents, the convening authority determined to delay the special court-martial trial to await completion of the ONI investigation.

On completion of the ONI investigation, other charges, including larceny and wrongful sale of military property, were filed against the accused. The later charges were combined with the previous charges, and, after an Article 32 investigation, were forwarded by the special court-martial authority to the general court-martial authority with recommendation for trial by general court-martial. The trial began on June 27, 1968.¹

Appellate defense counsel contend that the interval of time between confinement and trial was inexcusably long and thereby denied the accused a speedy trial. The argument disregards the fact there were two sets of charges against the accused. Each set of charges involves a different time of beginning and different steps in the course that brought them to trial. See United States v Goode, 17 USCMA 584, 38 CMR 382. The accused’s confinement on December 22, 1967, on the original charges, marked the beginning of the period for which the Government was accountable in determining whether he was deprived of a speedy trial as to those charges. United States v Weisenmuller, 17 USCMA 636, 38 CMR 434; United States v Smith, 17 USCMA 427, 38 CMR 225. The other charges, however, were still under investigation, and a period of investigation is normally not part of the period for which the Government is accountable in determining the timeliness of prosecution, unless the suspect or accused is confined or restrained in connection with those charges. See United States v Feinberg, 383 F2d 60 (CA2d Cir) (1967), certiorari denied, 389 US 1044, 19 L Ed 2d 836, 88 S Ct 788 (1968); United States v Deloney, 389 F2d 324 (CA 7th Cir) (1968), certiorari denied, 391 US 904, 20 L Ed 2d 417, 88 S Ct 1652 (1968). Even assuming the entire period is á single unit (see United States v Wilson, 10 USCMA 337, 27 CMR 411), the steps taken by the Government to bring all the charges to trial were not unreasonable or oppressive. Shortages of personnel, human error, and equipment failures, such as those reflected in the chronology of events of April, especially in a foreign country, cannot be ignored in considering the reasonableness of the period of time required for completion of essential steps in bringing a case to trial. United States v Brown, 13 USCMA 11, 14, 32 CMR 11.

Apart from the timeliness of the various steps in the pretrial proceedings, the accused contends he was the victim of a violation of Article 10, Code, supra, 10 USC § 810, in that, while in confinement, he was not timely advised as to the nature of the offenses with which he was charged. Without defense objection, an ONI agent testified he was informed by a police officer, who participated in the accused’s apprehension, that at the time of apprehension he informed the accused of “his rights under Article 31, and his right to consult with an attorney.” The Government maintains that, since advice under Article 31 includes a statement of the “nature of the accusation,” the record of trial amply supports a conclusion that the accused had timely notice of the offenses for which he was confined. Appellate defense counsel, however, challenge the competency and the sufficiency of the ONI agents’ testimony. Judge Kiracofe, writing for a unanimous board of review, concluded that since the accused was apprehended in the commission of several of the offenses there was no prejudice in the failure to inform him specifically that these offenses were the occasion for his confinement. See United States v Tibbs, 15 USCMA 350, 35 CMR 322. As to the second set of charges, on January 31, the accused was informed by ONI agents of those charges then under investigation; and on March 4, he was formally advised of the new charges that had been sworn to that day. The timeliness of the notice of these offenses manifestly cannot be measured by the December 22d date of confinement since the accused was already in confinement on the first set of charges. As to the later charges, therefore, we perceive no violation of the Article 10 requirement that “when . . . [an accused] is placed in arrest or confinement prior to trial, immediate steps should be taken to inform him of the specific wrong of which he is accused.”

Finally, the accused maintains that Article 33, Code, supra, 10 USC § 833, was violated in that no timely report was submitted to the general court-martial authority regarding the delay in the proceedings against him. Since the accused was initially confined and held for trial by special court-martial Article 33 was inapplicable to the firs', set of charges. When it was determined that the other charges required trial by general court-martial, the accused’s commander forwarded a report to the general court-martial authority. According to the chronology, this report was submitted within eight days of receipt of the Article 32 investigation recommending trial by general court-martial. However, even if we assume the special court-martial authority should have anticipated the probability of a general court-martial and, therefore, submitted a report at an earlier time, the record of trial discloses no basis for a conclusion of prejudice to the accused. United States v Tibbs, supra.

The decision of the board of review is affirmed.

Judge Darden concurs.

1 About one month before trial, the accused was retransferred from the Joint Services Stockade to the Camp Butler Brig. The confinement officer admitted the transfer was made in anticipation of the annual inspection by the Department of the Army Provost Marshal General’s Office and for the purpose of avoiding explanation of the length of the accused’s pretrial confinement. A transfer for this purpose is reprehensible and perhaps should be the occasion for disciplinary action. It is, however, manifest that the transfer was not made to harass the accused. On the day of the transfer, the accused’s case was noticed for trial, but defense counsel had another case scheduled and, therefore, requested postponement. A few days later, the accused was returned to his regular place of confinement. The record of trial demonstrates he incurred no harm as a result of the transfer.