United States v. Przybycien

19 C.M.A. 120, 19 USCMA 120, 41 C.M.R. 120, 1969 CMA LEXIS 618, 1969 WL 6308

• Court: United States Court of Military Appeals
• Decided: December 12, 1969
• Docket: No. 22,138
• Status: Published

Opinions

Opinion of the Court

Quinn, Chief Judge:

Almost three years after he absented himself without authority from his Marine Corps unit at Camp Le-jeune, North Carolina, the accused was apprehended in Chicago, Illinois, by agents of the Federal Bureau of Investigation. He was transferred to Camp Lejeune and brought to trial on a charge of desertion under Article 85, Uniform Code of Military Justice, 10 USC § 885, and found guilty as charged.

At trial, the accused moved, as he had previously before the convening authority, to dismiss the charge on the ground he had been deprived of a speedy trial. The motion was denied. The correctness of the ruling is the subject of this appeal.¹

A period of one hundred seventeen days elapsed between the accused’s apprehension and the trial. A chronology of events is attached as an Appendix. The matters reflected therein were presented to the law officer on argument of the motion to dismiss. It sufficiently appears that the proceedings between the accused’s arrest on July 10, 1968, and the appointment of an Article 32 investigating officer on July 24 were expeditious. Similarly, the events in the period from September 20, 1968, when defense counsel was notified of his appointment as counsel for the accused, to November 5, 1968, the date of trial, demonstrate a reasonable rate of progress in moving the case to trial.² What is at issue, therefore, is the period of fifty-six days between duly 24 and September 20.

During the critical period, a request for the accused’s service record was forwarded to Marine Headquarters. Initial efforts to comply with the request were unsuccessful because of an error in the accused’s service number, which was in the original report of absence and was carried over into the request. Eventually, the record was located at the storage facility in St. Louis, Missouri, and it was forwarded to Camp Lejeune. The evidence indicates the Government was not indifferent to the problem or unconcerned about its timely resolution. Besides the telephone calls made by the Division Legal Inspector, other measures might perhaps have been taken to expedite procurement of the service record, but what was done was not unreasonable or untimely. Even if we were to hold the Government solely responsible for the error in the service number, we are not persuaded that the error so inordinately prolonged the period of pretrial confinement as to deprive the accused of a speedy trial. United States v Hawes, 18 USCMA 464, 40 CMR 176.

The decision of the board of review is affirmed.

Judge Darden concurs.

1 Part of the assignment of error deals with alleged violations of Articles 10 and 33, Uniform Code of Military Justice, 10 USC §§ 810 and 833, respectively. See United States v Parish, 17 USCMA 411, 38 CMR 209. Article 10 requires that, on confinement, an accused be informed of the specific offense of which he is suspected and that immediate steps be taken to bring him to trial. The accused was apprehended on July 10, 1968. He reached Camp Lejeune on July 19, where he was confined in the camp brig. On July 23, the accused was “joined” to a unit. The unit then had “no information” on the accused, no “service record, service number, or . . . other information.” The next day, the unit commander talked to the accused about the offense. On the argument of the motion to dismiss, defense counsel made no claim that the accused was not informed of the offense of which he was ae-cused. Assuming, however, the accused was not informed of the offense at the time he was first confined, we perceive no prejudice to him by the delay. United States v Tibbs, 15 USCMA 350, 354, 35 CMR 322. Article 33 provides that when an accused is held for trial, the commanding officer shall, within eight days after accused is ordered into confinement, report in writing to the general court-martial authority the reasons for the delay in forwarding charges against the accused for trial. The record indicates that on July 30, the accused’s commanding officer reported by letter to the general court-martial authority as to the delay in processing the charge. Considering the accused was officially assigned to the unit on July 24, it would appear that the report by the commanding officer was timely. In any event, even if the time is measured from the accused’s arrest by the Federal Bureau of Investigation, there is no indication of prejudice to the accused by the delay. United States v Hounshell, 7 USCMA 3, 21 CMR 129; United States v Hawes, 18 USCMA 464, 467, 40 CMR 176.

2 When the case was before the board of review, Judge Faw, one of the members, wrote separately to express his concern about the failure of the record to indicate that the accused was accorded an opportunity to consult counsel during the seventy-two-day period of confinement. We share Judge Faw’s concern. The need for the assistance of counsel during extended, but necessary, confinement is oatent. Witnesses may have to be located and interviewed, and physical evidence may need to be safeguarded. See United States v Parish, 17 USCMA 411, 416, 38 CMR 209. While it is true, as Judge Faw observed, that these and other preparatory steps may be taken after formal appointment of counsel when the charges are referred to trial, the delay may disadvantage the accused. The manual of brig procedure does not indicate that a prisoner is ever informed of the right to consult counsel. Cf. United States v Hounshell, 7 USCMA 3, 7, 21 CMR 129. Brigs provide a counseling program. Undoubtedly, the purpose of the program is to give prisoners the opportunity to obtain advice. The brig counselor, however, is no substitute for a lawyer. A Department of Defense instruction on the operation of confinement facilities prohibits confinement in excess of thirty days, without approval of the officer exercising general court-martial jurisdiction over the command which ordered investigation of the alleged offense. Department of Defense Instruction, 1325.4, October 7, 1968, paragraph III. A. 2. b. That provision, however, does not insure the accused will be apprised of his legal rights and be in a position to prepare his defense. It is appropriate, therefore, to give a prisoner in confinement for more than a bi'ief period specific advice as to his right to consult an attorney and right to prepare for trial. Cf. Bitter v United States, 389 US 15, 19 L Ed 2d 15, 88 S Ct 6 (1967).