OPINION OF THE COURT
ROSENWASSER, Chief Judge:
The single issue presented by appellant is:
Whether the military judge erred in denying the defendant’s motion to dismiss all charges and specifications for lack of a speedy trial.
In the circumstances of the instant case however, the narrow question determinative of the issue may be stated in these words:
In applying the 90-day speedy trial rule, is the Coast Guard accountable for the period when the accused was held in confinement by Federal civil authorities to whom the Coast Guard had surrendered him after obtaining custody of him?
The accused was tried by the instant court-martial on 27 February 1975; 142 days after Air Force police brought his AWOL from Base St. Louis to an end in [1108]*1108California on 8 October 1974. On 9 October he was delivered to the Coast Guard and the following day, 25 hours after receiving him, the Coast Guard in California surrendered him to an agent of the U. S. Secret Service acting in behalf of Federal civil authorities in St. Louis, who wanted him on a charge of forgery of a Government check. The record shows that on the day Reed began his AWOL from Base St. Louis, he had been scheduled to appear before a Federal Grand Jury in St. Louis in connection with the forgery charge. Reed was released by the Coast Guard and turned over to the Secret Service agent on direction from Coast Guard Headquarters in Washington.
Between the date his AWOL ended and the date he was tried by the Coast Guard, Reed was in confinement no more than 132 days. Fifty of these were days he was in pretrial civil confinement on the Federal court charge, until his court-appointed lawyer obtained his release on bond on 29 November 1974. Reed remained free on bond for ten days until he was arraigned in Federal court and pleaded guilty on 9 December 1974. On 20 December 1974 Judge Reagan of the Federal court placed Reed on five years probation, and he was returned to the Coast Guard. Reed’s total confinement by Federal civil authorities was 61 days. Without these 61 days, Reed’s confinement preceding his court-martial was less than 90 days.
Upon trial by the court-martial, which was convened in St. Louis by the Commanding Officer, Base St. Louis, the defense moved to dismiss all charges based on lack of a speedy trial. After denial of the motion, Reed pleaded guilty to AWOL and to a variety of other offenses, including 13 specifications of bad check offenses committed between 2 August and 3 September 1974. His sentence as approved, extended to a bad conduct discharge, forfeiture of $210 pay per month for four months, and confinement at hard labor for two months. Reed’s civilian lawyer testified at the court-martial trial to the effect that he had sought to persuade the Federal court to drop its charge, assuring the court that the Coast Guard would try Reed. He testified:
I told Judge Reagan exactly what the story was with the Coast Guard . I tried to make arrangements to get the charges dropped by the United States Attorney, so that Mario Reed could go back to the Coast Guard and have the Coast Guard bring all charges against (him) . . . That was never done.
It is clear that the Federal court insisted on trying Reed, and did try him, for an offense different from those tried by the court-martial.
Subtracting the 61 days that he was confined by Federal civil authorities, Reed was in confinement less than 90 days preceding his court-martial trial.1 In our view the Coast Guard was not responsible for the 61 days in question and therefore, under the circumstances of this case, there was no violation of the 90-day speedy trial rule enunciated in United States v. Burton, 21 U.S.C.M.A. 112, 44 C.M.R. 166 (1971). Apart from the Burton rule we find no substantial basis for concluding that the accused was deprived of a speedy trial.
Two reported cases have ruled — and taken opposite stands — on the question of whether the prosecution in a court-martial case is accountable for the time that the accused was held by civil authorities on a civil court’s charge when the military service had him first but relinquished custody.
In United States v. Swartz, 44 C.M.R. 403 (A.C.M.R.1971) the accused was a soldier who had been AWOL two and one-half years before he was apprehended and brought to Fort Sill, where he was confined and informed of the pending court-martial charge. After three days at Fort Sill, he was released and turned over to Federal civil authorities, who held him in confinement until his trial on non-military offenses. The Federal court judge gave him a suspended sentence, and he was then returned to Fort Sill, almost three months having elapsed. One month later the Army [1109]*1109court-martial tried him. The Army Court of Military Review declared that the release of the accused to civilian authorities “caused an unnecessary delay prior to disposition of pending charges, and the full impact of the delay involved for such discretionary action must be borne by the Government.” The court concluded that the accused had been denied a speedy court-martial trial, set aside the findings and sentence, and dismissed the charge.
The Judge Advocate General of the Army attempted to certify the case to the Court of Military Appeals. However, the Court of Military Appeals refused to accept it, ruling that the certification was inexcusably late. 21 U.S.C.M.A. 666, 44 C.M.R. 948 (8 December 1971). A petition for reconsideration was denied on 27 December 1971.
The Air Force Court of Military Review in United States v. Steverson, 45 C.M.R. 649 (1972) expressly rejected the view of United States v. Swartz. In the Air Force case the accused, who was in confinement following an AWOL, was released and turned over to civil authorities for prosecution on an auto theft charge. The Court of Military Review held that the military need not account for the time that the accused was in confinement on the civil charge. The Court found applicable the language of United States v. Williams, 12 U.S.C.M.A. 81, 30 C.M.R. 81 (1961):
Detention of an accused by civil authorities for a civil offense, before preferment of any military charge, cannot properly be charged against the Government as part of the time for which it is accountable in determining whether it acted with reasonable dispatch in prosecuting the present offense.
The court also noted that it was Air Force policy to turn over on request a member charged with a felony-type offense. Steverson’s petition for grant of review was denied by the Court of Military Appeals on 10 April 1972 (21 U.S.C.M.A. 629), approximately four months after the court had rejected the certificate in United States v. Swartz.
As noted above, our Court’s view is that, under the particular facts and circumstances of the case before us, the Coast Guard is not chargeable for the time Reed was confined on behalf of the Federal court. Article 14(a) of the Code, 10 U.S.C. § 814a, permits the delivery of a service member to the civil authorities upon request.
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION OF THE COURT
ROSENWASSER, Chief Judge:
The single issue presented by appellant is:
Whether the military judge erred in denying the defendant’s motion to dismiss all charges and specifications for lack of a speedy trial.
In the circumstances of the instant case however, the narrow question determinative of the issue may be stated in these words:
In applying the 90-day speedy trial rule, is the Coast Guard accountable for the period when the accused was held in confinement by Federal civil authorities to whom the Coast Guard had surrendered him after obtaining custody of him?
The accused was tried by the instant court-martial on 27 February 1975; 142 days after Air Force police brought his AWOL from Base St. Louis to an end in [1108]*1108California on 8 October 1974. On 9 October he was delivered to the Coast Guard and the following day, 25 hours after receiving him, the Coast Guard in California surrendered him to an agent of the U. S. Secret Service acting in behalf of Federal civil authorities in St. Louis, who wanted him on a charge of forgery of a Government check. The record shows that on the day Reed began his AWOL from Base St. Louis, he had been scheduled to appear before a Federal Grand Jury in St. Louis in connection with the forgery charge. Reed was released by the Coast Guard and turned over to the Secret Service agent on direction from Coast Guard Headquarters in Washington.
Between the date his AWOL ended and the date he was tried by the Coast Guard, Reed was in confinement no more than 132 days. Fifty of these were days he was in pretrial civil confinement on the Federal court charge, until his court-appointed lawyer obtained his release on bond on 29 November 1974. Reed remained free on bond for ten days until he was arraigned in Federal court and pleaded guilty on 9 December 1974. On 20 December 1974 Judge Reagan of the Federal court placed Reed on five years probation, and he was returned to the Coast Guard. Reed’s total confinement by Federal civil authorities was 61 days. Without these 61 days, Reed’s confinement preceding his court-martial was less than 90 days.
Upon trial by the court-martial, which was convened in St. Louis by the Commanding Officer, Base St. Louis, the defense moved to dismiss all charges based on lack of a speedy trial. After denial of the motion, Reed pleaded guilty to AWOL and to a variety of other offenses, including 13 specifications of bad check offenses committed between 2 August and 3 September 1974. His sentence as approved, extended to a bad conduct discharge, forfeiture of $210 pay per month for four months, and confinement at hard labor for two months. Reed’s civilian lawyer testified at the court-martial trial to the effect that he had sought to persuade the Federal court to drop its charge, assuring the court that the Coast Guard would try Reed. He testified:
I told Judge Reagan exactly what the story was with the Coast Guard . I tried to make arrangements to get the charges dropped by the United States Attorney, so that Mario Reed could go back to the Coast Guard and have the Coast Guard bring all charges against (him) . . . That was never done.
It is clear that the Federal court insisted on trying Reed, and did try him, for an offense different from those tried by the court-martial.
Subtracting the 61 days that he was confined by Federal civil authorities, Reed was in confinement less than 90 days preceding his court-martial trial.1 In our view the Coast Guard was not responsible for the 61 days in question and therefore, under the circumstances of this case, there was no violation of the 90-day speedy trial rule enunciated in United States v. Burton, 21 U.S.C.M.A. 112, 44 C.M.R. 166 (1971). Apart from the Burton rule we find no substantial basis for concluding that the accused was deprived of a speedy trial.
Two reported cases have ruled — and taken opposite stands — on the question of whether the prosecution in a court-martial case is accountable for the time that the accused was held by civil authorities on a civil court’s charge when the military service had him first but relinquished custody.
In United States v. Swartz, 44 C.M.R. 403 (A.C.M.R.1971) the accused was a soldier who had been AWOL two and one-half years before he was apprehended and brought to Fort Sill, where he was confined and informed of the pending court-martial charge. After three days at Fort Sill, he was released and turned over to Federal civil authorities, who held him in confinement until his trial on non-military offenses. The Federal court judge gave him a suspended sentence, and he was then returned to Fort Sill, almost three months having elapsed. One month later the Army [1109]*1109court-martial tried him. The Army Court of Military Review declared that the release of the accused to civilian authorities “caused an unnecessary delay prior to disposition of pending charges, and the full impact of the delay involved for such discretionary action must be borne by the Government.” The court concluded that the accused had been denied a speedy court-martial trial, set aside the findings and sentence, and dismissed the charge.
The Judge Advocate General of the Army attempted to certify the case to the Court of Military Appeals. However, the Court of Military Appeals refused to accept it, ruling that the certification was inexcusably late. 21 U.S.C.M.A. 666, 44 C.M.R. 948 (8 December 1971). A petition for reconsideration was denied on 27 December 1971.
The Air Force Court of Military Review in United States v. Steverson, 45 C.M.R. 649 (1972) expressly rejected the view of United States v. Swartz. In the Air Force case the accused, who was in confinement following an AWOL, was released and turned over to civil authorities for prosecution on an auto theft charge. The Court of Military Review held that the military need not account for the time that the accused was in confinement on the civil charge. The Court found applicable the language of United States v. Williams, 12 U.S.C.M.A. 81, 30 C.M.R. 81 (1961):
Detention of an accused by civil authorities for a civil offense, before preferment of any military charge, cannot properly be charged against the Government as part of the time for which it is accountable in determining whether it acted with reasonable dispatch in prosecuting the present offense.
The court also noted that it was Air Force policy to turn over on request a member charged with a felony-type offense. Steverson’s petition for grant of review was denied by the Court of Military Appeals on 10 April 1972 (21 U.S.C.M.A. 629), approximately four months after the court had rejected the certificate in United States v. Swartz.
As noted above, our Court’s view is that, under the particular facts and circumstances of the case before us, the Coast Guard is not chargeable for the time Reed was confined on behalf of the Federal court. Article 14(a) of the Code, 10 U.S.C. § 814a, permits the delivery of a service member to the civil authorities upon request. Departmental regulations in the Coast Guard give restricted authority to commanding officers to effect delivery without referral to Headquarters; at the same time, these regulations recognize that the Commandant (Headquarters) may direct delivery without restriction, Section 0716 C.G.Supp. to M.C.M. 1969. The Coast Guard regulations are consistent with the policy of cooperation with civil authorities which predated the UCMJ.2 There was no abuse of authority when Headquarters directed that Reed be turned over to representatives of the Federal court, nor was it unreasonable to so direct. Reed had not yet been returned to his unit in St. Louis, the command of the convening authority. Moreover he was suspected of numerous worthless check offenses at military installations, but the scope of his activities in this connection had not yet been ascertained, and required investigation. On the other hand the Federal civil authorities had a firm check forgery charge against Reed. The Manual prescribes the general rule that all court-martial charges against an accused should be tried at a single trial (para. 33h) and Headquarters in this case could not reasonably have directed that the AWOL and two related charges be disposed of before turning the man over, and that the bad check charges be disposed of later.
[1110]*1110Military justice is not unique in its obligation to proceed with reasonable diligence in bringing charges to trial. The Constitutional right to a speedy trial has application in both the civil and the military forums. There is no justification therefore for a military service to refuse to relinquish custody of a member solely on the ground that a potential military charge exists and, under military law, the service is obligated to try him speedily. Both systems of justice have the same fundamental obligation under the same Constitution. The military services have the Burton rule; the Federal civil authorities have the Speedy Trial Act of 1974 which, incidentally, excludes any period of delay resulting from other proceedings against the defendant in computing the time within which a trial must commence. 18 U.S.C. 3161(h)(1)(C). Accordingly, when the military service, acting reasonably, defers to the civil authority and permits the civil court to try the member first, it should not be held accountable for the time he is held in confinement by the civil authority.
We hold that the military judge correctly denied the defense motion to dismiss; that the accused’s rights under Article 10 UCMJ were not violated, and that he was not deprived of his constitutional right to a speedy trial. The findings and sentence are affirmed.
BRIDGMAN, JR., and YOUNG, Judges (concurring). Appellate Military Judges.