United States v. Jackson

OPINION OF THE COURT FLETCHER, Chief Judge: We granted review to determine whether the convening authority’s withdrawal of the accused’s case from a special court-martial prior to convening of the court and his subsequent referral of the charges to a general court-martial were justified. Although raised for the first time before the Navy Court of Military Review by affidavit, we do not consider waiver appropriate since the attack is essentially one of due process challenging the integrity of the court-martial process. United States v. Bouie, 9 U.S.C.M.A. 228, 232, 26 C.M.R. 8, 12 (1958); see United States v. Cutting, 14 U.S.C.M.A. 347, 351, 34 C.M.R. 127, 131 (1964); cf. United States v. Rodgers, 8 U.S.C.M.A. 226, 228, 24 C.M.R. 36, 38 (1957). The standard for permissible withdrawal and re-referral of charges by the convening authority was set forth most recently in United States v. Walsh, 22 U.S.C.M.A. 509, 511, 47 C.M.R. 926, 928 (1973) (citations omitted): Whether the withdrawal has been after the court has convened but before arraignment ... or after arraignment but before jeopardy attaches . or after a judge exercises lawful authority . . . or if charges are withdrawn before the convening of the court as in . the instant case, charges which have been referred to one court-martial may not be withdrawn and sent to another without a “ ‘proper reason.’ ” While the better practice is always to make such a “proper reason” a matter of record, we have held previously that there is no [244] specific requirement that the reason for removal appear on the record if withdrawal precedes the taking of evidence. United States v. Walsh, supra; United States v. Lord, 13 U.S.C.M.A. 78, 32 C.M.R. 78 (1962). In his post-trial affidavit filed with the Court of Military Review, the trial defense counsel asserted that the withdrawal was brought about by his request for the presence of several witnesses, one of whom was stationed overseas. As it did below, the Government counters this contention by noting that while an assault and disobedience charge were withdrawn from the special court-martial, those charges as well as an additional charge of attempted robbery were later referred to a general court-martial.1 In essence, then, the controversy narrows to whether the witness requests or the additional charge of attempted robbery precipitated the withdrawal and re-referral. While the former does not constitute a “proper reason” for withdrawal,2 the latter most assuredly could.3 Inasmuch as this question of fact was resolved against the accused by the Court of Military Review,4 and is supported by evidence of record, we cannot say that, as a matter of law, the withdrawal was improper. United States v. Phifer, 18 U.S.C.M.A. 508, 40 C.M.R. 220 (1969); see United States v. Lohr, 21 U.S.C.M.A. 448, 45 C.M.R. 222 (1972). The decision of the United States Navy Court of Military Review is affirmed. Judge COOK concurs. Footnotes [1] The Government acknowledges that the attempted robbery charge was “based upon the same incident from which the assault charge arose.” The accused ultimately was acquitted of the attempted robbery charge. [2] See Petty v. Moriarty, 20 U.S.C.M.A. 438, 43 C.M.R. 278 (1971); Manual for Courts-Martial, United States, 1969 (Rev.), paragraphs 33j(l) and 56a. [3] There has been no showing, nor does the appellant contend, that the attempted robbery charge was illegally referred to trial. Thus, we do not reach the effect of the preferral and ultimate referral of an additional charge in retaliation against a defense request for witnesses. [4] In pertinent part, the Court of Military Review held: The facts disclosed in the affidavit of the individual defense counsel do not overcome the presumption of regularity or furnish a “recognizable indication” that the appellant’s case was withdrawn ... for an improper purpose.