United States v. Robinson

26 M.J. 954, 1988 CMR LEXIS 561, 1988 WL 83258
CourtU.S. Army Court of Military Review
DecidedAugust 2, 1988
DocketACMR 8702356
StatusPublished
Cited by4 cases

This text of 26 M.J. 954 (United States v. Robinson) is published on Counsel Stack Legal Research, covering U.S. Army 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. Robinson, 26 M.J. 954, 1988 CMR LEXIS 561, 1988 WL 83258 (usarmymilrev 1988).

Opinion

OPINION OF THE COURT

ADAMKEWICZ, Senior Judge:

Appellant was brought to trial by a military judge sitting as a general court-martial at Bamberg, Federal Republic of Germany, on charges of wrongful use, possession with intent to distribute, and distribution of marijuana (Charge I and its specifications), and indecent solicitation (Charge II), in violation of Articles 112a and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 912a and 934 [hereinafter ÚCMJ], respectively. The specification of possession with intent to distribute was dismissed on multiplicity grounds, while the charge of indecent solicitation was dismissed for failure to afford a speedy trial on that offense. Before this court, appellant repeats his assertion that the drug offenses should also have been dismissed on speedy trial grounds.1

[955]*955I

Appellant was first implicated in marijuana offenses in late March of 1987 and, upon questioning by members of the Criminal Investigation Command (CID), confessed and named others involved in drugs. The investigation into drug use in the ensuing weeks became quite widespread, involving thirty to forty suspects. In the expanding investigation, in order to assure sufficient corroboration of any suspect’s involvement in the drug charges under investigation, trial counsel directed CID not to title an individual unless he was implicated in at least two statements. Between the end of March and 7 May 1987, a number of soldiers made sworn statements to CID implicating the appellant in drug offenses. These statements contained substantially all of the information relied upon in the drafting of drug charges against the appellant.

In the meantime, on 11 April 1987, Private First Class (PFC) McKay told Chaplain Danford that the appellant had made sexual advances to him, with threats, which frightened him. The chaplain talked to appellant’s squadron commander and the decision was made to transfer the appellant from Grafenwoehr to Warner Barracks in order to separate him from PFC McKay. At Warner Barracks on 14 April 1987 appellant’s freedom of movement was limited by the commander.2 Although the exact nature of the limitations was disputed at trial, the military judge found restriction in lieu of arrest and hence pretrial restraint as to the solicitation charge commencing on 14 April.3 Both charges were eventually preferred on 5 August 1987.

Testimony at trial, however, made it clear that the restraint initially was solely for the indecent solicitation offense. Only on 18 .June, when appellant’s company commander considered lifting the restraint but decided not to do so in part because of the drug charges, did the restraint relate to the drug offenses. Thus the military judge computed two different time periods for speedy trial purposes: 14 April for the indecent solicitation, and 18 June for the drug offenses. On that basis, and after deducting periods of delay for which the government was not accountable, R.C.M. 707(c), the delay for the indecent solicitation exceeded 120 days and that charge was dismissed, while the drug charges were brought to trial in less than 120 days and so were not dismissed.4 Before us, appellant asserts that the military judge erred in assigning different starting periods for the speedy trial “clock” for the two separate charges. We disagree.

II

A.

The question we must first address is what is the inception date to be charged for the imposition of restraint. Rule for Courts-Martial 707 lays out requirements for a speedy trial.5 Rule for Courts-Mar[956]*956tial 707(a) pertinently provides that the accused shall be brought to trial within 120 days of the earlier of preferral of charges or imposition of restraint. Rule 707(b)(4) provides that, when charges are preferred at different times, the inception date for each is separately computed. Appellant’s position is that, unless charges are preferred separately, a violation of the 120-day rule under R.C.M. 707(a)(2) requires dismissal of all charges. We think this a strained interpretation.

When charges are separately preferred, separate speedy trial clocks are run on each charge. In United States v. Mladjen, the accused was apprehended on charges which were subsequently referred to court-martial. Id., 41 C.M.R. 159 (C.M.A.1969). The trial was delayed, however, while other offenses were investigated and eventually joined for trial with the earlier offenses. The Court of Military Appeals held that the two sets of charges had different starting dates for speedy trial purposes: “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. Id. at 161 (emphasis added). Accord, United States v. Talavera, 8 M.J. 14, 17 (C.M.A.1979) (where there are multiple specifications, the proceedings as to each must be considered separately).

A similar analysis is, we believe, appropriate even when the charges are not preferred separately. Any other interpretation would require the government to prefer separate charges for all known offenses in order to prevent a successful speedy trial challenge on one offense from infecting all other offenses preferred at the same time, an effect that is contrary to logic and the thrust of stare decisis. Cf. United States v. Nash, 5 M.J. 37 (C.M.A. 1978) (where accused was released from confinement and then reconfined for offenses unrelated to charges at court-mar-tial, the reconfinement time was not considered for speedy trial purposes); United States v. Miller, 2 M.J. 77 (C.M.A.1976) (confinement resulting from earlier nonjudicial punishment which was unrelated to accused’s court-martial was not counted for speedy trial purposes).6 Accordingly, we hold that, in order to commence the speedy trial clock, the imposition of restraint under R.C.M. 707(a)(2) must be “in connection with” the specification being challenged. We may suspect that it will be a rare case where the government will be able to show that the restraint was not at least in part imposed as to all the offenses preferred together, but we will not foreclose that opportunity. In this case, the government met that challenge. Thus the formal pretrial restraint on the drug offenses commenced no earlier than 18 June 1987.

B.

The next issue is what effect that restraint has for speedy trial purposes. As noted earlier, R.C.M. 707(a) treats the imposition of restraint as a trigger. Recently, in United States v. Gray, 26 M.J. 16 (C.M.A.1988), the Court of Military Appeals attempted to provide guidance on the application of R.C.M. 707. Unfortunately for our review, the court was unable to state definitively at what point the speedy trial clock should start to run when pretrial restraint precedes the preferral of charges. Judge Sullivan, writing the lead opinion, concluded that “only pretrial restraint when charges are pending is sufficient to start the clock under R.C.M. 707(a),” and that “charges are pending in the military justice system when charges are preferred.” Id. at 19 (footnote omitted).

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Cite This Page — Counsel Stack

Bluebook (online)
26 M.J. 954, 1988 CMR LEXIS 561, 1988 WL 83258, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-robinson-usarmymilrev-1988.