United States v. Wilkinson

27 M.J. 645, 1988 CMR LEXIS 838, 1988 WL 121462
CourtU.S. Army Court of Military Review
DecidedNovember 7, 1988
DocketACMR 8702590
StatusPublished
Cited by4 cases

This text of 27 M.J. 645 (United States v. Wilkinson) 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. Wilkinson, 27 M.J. 645, 1988 CMR LEXIS 838, 1988 WL 121462 (usarmymilrev 1988).

Opinion

OPINION OF THE COURT

DeFORD, Senior Judge:

Contrary to his pleas, the appellant was convicted of conspiracy to commit housebreaking, violation of a lawful general regulation by possessing a knife with a locking, four-inch blade, damage to private property, wrongful use of marijuana, larceny (two specifications), and housebreaking, violations of Articles 81, 92, 109, 112a, 121, and 130, Uniform Code of Military Justice, 10 U.S.C. §§ 881, 892, 909, 912a, 921, and 930 (1982 & Supp.1987) [hereinafter UCMJ]. The convening authority approved his sentence to a dishonorable discharge, confinement for 36 months, and forfeiture of all pay and allowances.

I

On appeal, the appellant contends that his right to speedy trial under Rule for Courts-Martial 707 was violated inasmuch as 170 days passed between the dates of his restriction and his trial. Manual for Courts-Martial, United States, 1984, Rule for Courts-Martial 707(a) [hereinafter R.C. M.]. We disagree.

[647]*647On 8 May 1987, the appellant’s company commander withdrew the appellant’s pass privileges “to keep the [appellant] out of trouble.” On 21 May 1987, the company executive officer in the capacity of acting company commander met with the appellant’s battalion commander and requested that the appellant be placed in pretrial confinement. This request was precipitated by the discovery of drug abuse paraphernalia in the appellant’s possession aggravated by his involvement in numerous other offenses which were under investigation and by collateral, minor infractions which included four incidents for which the appellant received punishment under Article 15, UCMJ. The acting company commander also advised the battalion commander that the appellant had earlier that week “threatened” to commit suicide or to go “AWOL.” The appellant’s battalion commander denied the request. As a lesser form of the restraint, the appellant’s acting company commander notified the appellant that he was “restricted.” The terms of his restriction and the reasons therefor were memorialized in writing as follows:

The pass privilege for [the appellant] have been pulled pending trial by Special Courts Martial [sic]. He is hereby restricted to Warner Barracks II, Warner Barracks I (with an E-5 or above escort), and any training area designated by the Commander.

However, the appellant’s company commander, executive officer, and first sergeant all testified that the requirement for an escort to Warner Barracks I was “lifted” after “approximately two weeks.” This was done because the appellant’s psychological evaluation determined that he was not a suicide risk, because the requirement for an escort taxed the unit’s manpower resources, and because the company commander decided that the appellant was not a flight risk. The appellant was notified of the charges against him on 26 July 1987. On these facts, the following timetable is suggested:

8 May 1987 Appellant’s pass privileges suspended.
21 May 1987 Appellant restricted to Warner Barracks II.
4 June 19871 Appellant’s restriction to Warner Barracks II lifted; pass privileges suspended.
26 July 1987 Appellant informed of the charges against him.
9 November 19872 First day of trial.

At trial, the government contended that the “restriction” was not imposed as a pretrial restraint pending disposition of the appellant’s offenses but as an administrative safeguard against suicide. The government also presented evidence in support of its argument that the restriction was imposed in order to enforce restrictions previously imposed as punishment under Article 15, UCMJ, to alleviate tension with the local community, and to prevent the appellant from getting into further trouble. Additionally, the government argued that the order was nothing more than a “condition on liberty” under R.C.M. 304(a)(1); that the measures were “lifted” each time the appellant went to the field thus restarting the speedy trial clock; and, finally, that any period for which the government was accountable should be excluded as good cause under the standards announced in United States v. Durr, 21 M.J. 576 (A.C.M.R.1985).

The military judge denied the motion to dismiss on the grounds that the order of 21 May did not amount to pretrial restriction which would trigger the speedy trial provisions of R.C.M. 707. He found that the restraint imposed was “purely administrative” and intended by the command to protect the appellant from suicide and to prevent him from committing other disciplinary infractions.

Administrative restraints — restraints which are ancillary to criminal jus[648]*648tice processes — do not trigger the speedy trial clock because they are imposed for purposes unrelated to military justice. R.C.M. 304(h). The test is “whether the primary purpose in imposing conditions on liberty is to restrain an accused prior to trial in order to assure his presence at trial or to avoid interference with the trial process.” United States v. Bradford, 25 M.J. 181, 186 (C.M.A.1987). If, however, the evidence of record “supports a conclusion” that the primary purpose for the pretrial restraint is related to an “upcoming court-martial,” the speedy trial rule of R.C.M. 707(a) applies. United States v. Bradford, 25 M.J. at 186-87 (emphasis added). In the case at bar, the order by the appellant’s acting company commander on 21 May stated quite succinctly that he was imposing restraint “pending trial.” This statement, considered in light of the absence of any restraint at the time the appellant initially threatened suicide, the failure of the command to dispense with restraint once they were advised by competent medical authorities that the appellant was not a suicide risk and their stated concerns that the appellant was a flight risk, belies the self-serving testimony of the government witnesses that the restraint was simply an administrative measure to prevent the appellant’s suicide. This evidence supports a conclusion that the restraint was related to the anticipated prosecution of the appellant. Accordingly, the military judge erred in finding that the restraint was administrative in nature. Therefore, the circumstances of this case must be examined in light of the speedy trial rule of R.C.M. 707. Cf. United States v. Bradford, supra.

Rule for Courts-Martial 707(a) generally provides that “[t]he accused shall be brought to trial within 120 days.” In promulgating this rule, the President established a 120-day numerical standard for speedy trial. United States v. McCallister, 27 M.J. 138 (C.M.A.1988). See United States v. Cherok, 22 M.J. 438, 439 n. (C.M.A.1986). This standard exists independent of the 90-day speedy trial rule established by judicial interpretation of Article 10, UCMJ, 10 U.S.C.

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Bluebook (online)
27 M.J. 645, 1988 CMR LEXIS 838, 1988 WL 121462, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-wilkinson-usarmymilrev-1988.