United States v. Angel

RUBENS, Judge: A military judge sitting alone as a general court-martial convicted appellant following his guilty pleas of five specifications of larceny in violation of Article 121, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 921. The military judge dismissed alleged violations of Articles 107 and 132, UCMJ, 10 U.S.C. §§ 907 and 932, respectively, as multiplicious for findings, and sentenced appellant to confinement for three months, reduction to E-l, and a bad-conduct discharge. The convening authority approved the sentence as adjudged. Pursuant to Rule 17(a) of the Rules of Practice and Procedure of the Courts of Military Review, the Court ordered the case to be considered en banc and heard oral argument on the assignments of error raised by the appellant. Appellant makes two assignments of error: first, that he was denied a speedy trial under Rule for Courts-Martial (R.C.M.) 707, Manual for Courts-Martial (MCM), United States, 1984;1 second, that an unsuspended bad-conduct discharge is inappropriately severe under the circumstances. We need not resolve the second allegation of error because of our resolution of the first. The military judge accepted as factual the following stipulated chronology: 10 Jan-13 Mar 86 Alleged offenses committed. 30 Mar 86 Investigation into alleged offenses begun. 15 Aug 86 Instant charges preferred. 20 Aug 86 Article 32, UCMJ, investigation ordered by CO, SEAL Team 6. 21 Aug 86 Accused provided copy of charges by DC. Accused and DC discuss charges and submit verbal pretrial agreement offer to TC. 22 Aug 86TC submits written PTA counter-offer requiring, inter alia, that accused plead guilty “substantially as charged.” Defense rejects government counter-offer. 27 Oct 86 Article 32 scheduled for 19 Nov; joint session with United States v. Voyles. 13 Nov 86 DC TAD at last minute; unavailable until after scheduled Article 32 date. 26 Nov 86 SJA from COMNAVSUR-FLANT agrees to recommend acceptance of PTA offer to CA; offer includes waiver of Article 32. Early Dec 86 DC TAD. [602] 30 Dec 86 DC submits memo to TC expressing intent to submit PTA through chain of command. 5-15 Jan 87 DC TAD. 30 Mar 87 DC submits written PTA offer. 31 Mar 87 Offer and Charge Sheet forwarded to CA. 16 Apr 87 Charges and specs referred; PTA signed by CA. 1 May 87 Accused informed by TC of preferral of charges and served with referred charges. May 87 Case docketed for trial 19 May 87. 15 May 87 Article 39a session; DC requests continuance from 19 May to 12 June 87. Request granted. 22 May 87 Circuit MJ redockets trial from 12 to 10 June due to MJ availability. 10 Jun 87 Trial commences. AE I, VII. In accordance with R.C.M. 905(d), the military judge stated the following essential findings on the record: I find the facts as stipulated between the parties; in addition I find as a fact, that the accused was well aware from and after mid August 1986 of the offense of which he stood accused and against [sic] he would be required to defend himself at trial, should a trial result. (Emphasis added) R. 22. Apparently in accordance with United States v. Postle, 20 M.J. 632, 640 (NMCMR 1985),2 the military judge included the following legal basis for his decision in the record: Number 1: I find the defendant [sic] was not informed by any authorized agent of the convening authority or the government of the instant charges until 1 May 1987; Number 2: The provision of a copy of the charges to the defense counsel prior to an Article 32 investigation does not constitute informing the accused of the charges under any agency theory, any more than it would constitute service of the charges upon the accused for purposes of, for example, commencement of the accused’s 5-day waiting period or such other formal step prior to trial; Number 3: Since the speedy trial clock started on 1 May 1987, the motion is denied. ... I would note here for the benefit of the reviewing authorities that I think that it is probably an — the extreme example of what the drafter of the 1984 Manual and Rule 707 specifically intended in the crafting of — and I say “crafting of” Rule 707, the speedy trial Rule. I think the government has the option of starting the clock when they want to and if it is resulted [sic], in fact a denial of the very speedy trial right which it’s designed to protect then I think it’s up to the appellate courts to tell us so. But until such notice, I’m going to apply it as written. R. 23. The issue in this ease is, when did the Government notify appellant of the preferred charges? The Government argues that the trial counsel notified appellant of the preferred charges on 1 May 1987, and filled in Block 12 of the Charge Sheet (DD Form 458) to memorialize this event. If so, appellant was brought to trial in 40 days and the 120-day speedy trial clock in R.C. M. 707(a) was not violated.3 Appellant, on the other hand, argues that the Government notified him of the preferred charges on 21 August 1986 when appellant’s immediate commander ordered an Article 32, UCMJ, investigation of the preferred charges and the defense counsel, who had been given a copy of the charge sheet, discussed the charges with appellant. If so, appellant asserts he was brought to [603] trial in not less than 270 days4 and the charges must be dismissed under R.C.M. 707(e). In Thomas v. Edington, 26 M.J. 95 (C.M. A.1988), the Government did not complete Block 12 of the Charge Sheet and Petitioner Thomas asserted that it was the policy of some Navy commands to deliberately not notify accused of preferred charges to avoid triggering R.C.M. 707(a). The Court of Military Appeals stated, however, that it “need not decide this case based upon the alleged Navy policy” because the “undisputed facts of this case ... [demonstrate] that petitioner, indeed, received actual ‘notice’ of the charges against him.” Id., at 95, 96. The Court then held that the accused had been notified on or before a certain date, that he had not been brought to trial within 120 days of that date, and dismissed the charges without specifying the event that provided actual notice. In United States v. Amundson, 22 U.S.C.M.A. 208, 49 C.M.R. 598 (C.M.A. 1975), the Court of Military Appeals considered whether a “legal hold,” coupled with a loss of certain privileges (e.g., PX, commissary, leave, assignment to off-base details), was tantamount to “arrest” so as to trigger the speedy trial protection of Article 10, UCMJ, 10 U.S.C. § 810. The resolution of that issue is not important in this case, but the judicial methodology is. The Court indicated that it was not bound by the label assigned to these facts by the Government (i.e., that what it did was a “legal hold”), but rather would independently evaluate the facts and decide what these facts were under the law.5 In Thomas v. Edington the Court of Military Appeals held that notice occurred on or before a certain date notwithstanding the fact that Block 12 of the Charge Sheet was left blank and the Government asserted that notice occurred on a later date. Similarly, we are not bound by the Government’s assertions as to when notice occurred in a given case. The date in Block 12 of the Charge Sheet is some evidence of the date of a notice, but is not necessarily determinative of the date of the earliest notice which meets the requirements of R.C.M. 308(a).6 Our issue is narrowed, then, to whether the events of 20 and 21 August 1986 constitute actual notice of preferred charges. If the immediate commander caused actual notice to be given on 21 August 1986, then the speedy trial clock began to run on that date and the notice on 1 May 1987 is irrelevant for speedy trial purposes. There are three sets of critical facts in the record that bear on this issue. First, on 20 August 1986 the appellant’s immediate commander, the Commanding Officer of SEAL Team 6, ordered an investigation under Article 32, UCMJ, and R.C. M. 405. He provided a copy of the order and the Charge Sheet to the defense counsel and directed the Investigating Officer to notify the accused of the time and place of any hearing. Second, the defense counsel discussed the charges with appellant and submitted a verbal pretrial agreement offer to the trial counsel on 21 August 1986. Third, the trial counsel responded to the verbal offer of a pretrial agreement on 21 August 1986 with a written memo which required appellant, inter alia, to plead guilty “substantially as charged.” These pretrial agreement negotiations continued until the agreement was signed on 16 April 1987. [604] We find that appellant’s immediate commander caused actual notice of the preferred charges to be given to appellant on 21 August 1986. This is the date on which the immediate commander sent a copy of the preferred charges to appellant’s defense counsel who forseeably shared this information with his client in order to prepare for the impending investigation. See generally R.C.M. 502(d)(6) and Discussion. This met the plain meaning of the requirements of Article 30(b), UCMJ, 10 U.S.C. § 830(b), and R.C.M. 308(a), and started the R.C.M. 707(a) 120-day speedy trial clock. The Government’s post-notice behavior further supports this conclusion. Although appellant waived the Article 32, UCMJ, investigation, one of his basic rights at such an investigation would have been to be informed of the charges against him. Article 32(b), UCMJ; R.C.M. 405(f)(1). Moreover, the Government negotiated a pretrial agreement with the accused, thereby acknowledging that he had actual notice of the preferred charges. Indeed, it would be pointless, if not improper, to negotiate a pretrial agreement with an accused who had not been notified of the preferred charges. Thus, the Government’s behavior makes untenable any claim that they did not notify appellant on 21 August 1986. Accordingly, appellant was brought to trial in excess of 120 days from the date of notification of preferral7 and was denied a speedy trial under R.C.M. 707(a). Appellant’s first assignment of error is meritorious. The findings of guilty and the sentence are set aside. The charges are dismissed. Senior Judges COUGHLIN and RILEY and Judges MIELCZARSKI, ALBERTSON, JONES, and STRICKLAND concur. Footnotes [1] Appellant’s guilty plea does not waive the speedy trial issue. United States v. Davis, 11 U.S.C.M.A. 226, 29 C.M.R. 226 (1960). [2] See also United States v. Ruhling, 28 M.J. 586 (NMCMR 1988) (military judge's compliance with Postle). [3] There was no arrest or pretrial confinement in this case so the 90-day speedy trial clock in R.C.M. 707(d) does not apply. [4] We compute the delay between 21 August 1986 and trial on 10 June 1987 as 285 days without deduction of any R.C.M. 707(c) exclusions, but this disparity does not affect the outcome. [5] See abo United States v. Walls, 9 M.J. 88 (C.M.A.1980); United States v. Powell, 2 M.J. 6 (C.M.A.1976); and United States v. Schilf, 1 M.J. 251 (C.M.A.1976) (all whether restriction was tantamount to confinement). [6] R.C.M. 308(a) states that “[t]he immediate commander of the accused shall cause the accused to be informed of the charges preferred against the accused, and the name of the person who preferred the charges and of any person who ordered the charges to be preferred, if known, as soon as practicable." The Code and the Manual do not prescribe any particular method for accomplishing this notification. The Discussion accompanying this rule encourages the completion of Block 12 of the Charge Sheet to memorialize this notice. [7] We have carefully examined the record of trial for R.C.M. 707(c) exclusions. They are insufficient to reduce the delay to 120 days or less.