United States v. Kossman

FREYER, Senior Judge: This is an appeal, pursuant to Article 62 of the Uniform Code of Military Justice (UCMJ), 10 U.S.C.A. § 862, from a ruling of the military judge dismissing some of the charges and specifications after finding [640] that the accused-appellee had been confined on those charges and specifications in excess of ninety days (in addition to appropriate exclusions), and that the Government-appellant had not shown good cause for failing to bring the appellee to trial within such period. The judge also found that the appellant had relied on Rule for Courts-Martial (R.C.M.) 707 in believing that it had one hundred twenty days (in addition to exclusions provided in that Rule) in which to arraign the appellee, but he ruled that United States v. Burton, 21 U.S.C.M.A. 112, 44 C.M.R. 166, 1971 WL 12477 (1971), as modified by United States v. Driver, 23 U.S.C.M.A. 243, 49 C.M.R. 376, 1974 WL 14085 (1974), was the operative authority and required that the affected charges and specifications should be dismissed. The appellant concedes that the requirements of Burton were not met, and that there were no circumstances making compliance with the requirements of Burton impracticable. There is no assertion of any violation of the Sixth Amendment right to a speedy trial. The basis of this appeal is that, in the appellant’s view, the most recent revision of R.C.M. 707, which the parties agree was in force when the pertinent events in this ease occurred, supplanted Burton altogether, and that, consequently, any speedy trial issues should have been decided solely with reference to that Rule. The current revision of R.C.M. 707, which was promulgated by Change V to the Manual for Courts-Martial, United States, 1984, applies to all cases in which arraignment occurs on or after 6 July 1991. The arraignment in this case took place on 29 October 1992. We hold that United States v. Burton, as modified by United States v. Driver, is still operative and provides the proper rule for decision in this case. Accordingly, we affirm the ruling of the military judge. The President is undoubtedly empowered by Article 36, UCMJ, to promulgate a speedy trial rule like R.C.M. 707 as a matter of criminal procedure. Such a rule may afford rights and protections greater than or supplementary to those provided by Article 10, UCMJ, may impose conditions and limitations on such further rights and protections, and may specify procedures and standards, as well as modes of proof, to be used in litigating issues arising under the rule, inasmuch as substantive statutory rights are not implicated. That or another rule may also provide procedures and modes of proof for litigating claims of Article 10 violations; but what the President may not do is to curtail substantive elements of the Article 10 statutory right, itself, either directly or by altering standards of proof affecting elements of the statutory claim, which are deemed substantive in nature. See Dick v. New York Life Ins. Co., 359 U.S. 437, 446-47, 79 S.Ct. 921, 927, 3 L.Ed.2d 935 (1959). United States v. Burton, 21 U.S.C.M.A. 112, 44 C.M.R. 166, 1971 WL 12477 (1971), holds that “a presumption of an Article 10 violation will exist when pretrial confinement exceeds three months. In such cases, this presumption will place a heavy burden on the Government to show diligence, and in the absence of such a showing the charges should be dismissed.” It is necessary to consider what kind of presumption this is and whether it, and its associated standard of proof, are procedural or substantive. The different types and effects of presumptions are described in detail in the Synopsis section of 1 Weinstein, Evidence, at 301-1-9 relating to Federal Rule of Evidence (F.R.E.) 301. Further discussion is found in the excellent opinion of Judge Brosman in United States v. Biesak, 3 U.S.C.M.A. 714, 14 C.M.R. 132, 1954 WL 2104 (1954). Two aspects of Biesak are of particular interest. First, the Biesak court made clear that the only kind of factual presumption recognized in military criminal law is the same type of presumption recognized in F.R.E. 301, namely, one which does not shift the burden of proof in the sense of the risk of non-persuasion and does not constitute “evidence” of the presumed fact but merely permite the trier of fact, by drawing the particular inference, to find the presumed fact from the predicate circumstantial evidence. 14 C.M.R. at 139641 140. That type of presumption has continued down to present times. See United States v. Ford, 23 M.J. 331 (C.M.A.1987); United States v. Mance, 26 M.J. 244 (C.M.A.1988). As indicated in Ford, the availability of a F.R.E. 301 permissive inference-type presumption is a procedural matter relating to modes of proof and is, therefore, within the President’s authority under Article 36. Second, the Biesak court, in holding that the presumption of sanity created only a permissive inference, declined to follow so much of the Manual for Courts-Martial as purported to characterize the presumption of sanity as one relating “to facts which courts are bound to presume in the absence of proof to the contrary.” 14 C.M.R. at 139. Thus, the court’s approach was that the effect of a presumption is a matter of military substantive law beyond the reach of the Manual for Courts-Martial. In this respect, its approach is entirely consistent with Mance, Dick v. New York Life Ins. Co., and what is now F.R.E. 302. With these principles in mind, it is necessary to examine the Burton presumption. What distinguish the Burton presumption from purely evidentiary or “tactical” presumptions, such as the ones discussed in Ford and Manee, are, first, that it unquestionably shifts the burden of proof, in the sense of risk of non-persuasion, from the accused to the Government upon a showing of pretrial confinement exceeding three months; second, that it defines the applicable standard of proof (i.e., a heavy burden); and, third, that what is presumed is not a fact at all but a conclusion of law, to wit: that Article 10 has been violated. The first and second aspects of the Burton presumption clearly deal with the substantive elements of an Article 10 violation. Although the term “presumption” is used, the court, in effect, prescribed that proof of pretrial confinement exceeding three months is sufficient to make out a prima facie case of a violation of Article 10. That part of Burton, therefore, relates to the effect of the presumption. The rest of Burton defines what the Government must show to defeat an Article 10 claim on the merits (i.e., diligence), the standard of proof therefor (i.e., a heavy burden), and the remedy (i.e., dismissal with prejudice). Thus, notwithstanding its “presumption” phraseology, Burton provides the elemental standards of proof, not mere modes of proof, for a claim of an Article 10 violation and the defense thereto, as well as the nature of the remedy. In light of Dick v. New York Life Ins. Co., I see no alternative but to regard all these aspects as clearly substantive implementations of Article 10 which the President is powerless to overrule via Article 36. Although Article 10, itself, prescribes no specific time limits or remedy, there is no infirmity in judicial prescription of substantive rules needed to implement the Congressional purpose of Article 10 when such specifics have not been expressly provided by the Congress. Cf. Textile Workers Union of America v. Lincoln Mills of Alabama, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957). Whether or not the U.S. Court of Military Appeals should now cede to the President its guardianship of Article 10 rights, and the Burton presumption be supplanted by a unilaterally changeable and porous R.C.M. 707, especially the latter’s largely illusory remedy of dismissal without prejudice, which, in pretrial confinement cases, would generally result only in punishing successful movants by prolonging their pretrial confinement, are policy issues concerning which I express no opinion. Until the U.S. Court of Military Appeals rules on the legal issue underlying this appeal, I can only presume that its expression of confidence in “conscientious judicial enforcement of Burton’s 90-day rule,” along with R.C.M. 707 and the Sixth Amendment, United States v. McCallister, 27 M.J. 138, 141 (C.M.A.1988), was meant to apply equally to itself as to lower courts. Although, because I view Burton as a substantive implementation of Article 10, I deem the intent of the Manual drafters to be immaterial, I agree with Judge Mollison in finding the absence of a clear intent to overrule Burton in the current version of R.C.M. 707, as in past versions, which I [642] attribute to a legitimate concern on the part of the drafters for Burton’s manifestly substantive Article 10 underpinnings.