United States v. Doty, C.A.A.F. (1999)
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Scribd Government DocsUnited States v. Doty, C.A.A.F. (1999)
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Scribd Government DocsU.S. v.
Doty
IN THE CASE OF
United States, Appellee
v.
Timothy R. Doty
Hospital Corpsman Third Class
U.S. Navy, Appellant
No. 98-0949
Crim. App. No. 97-0745
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
Argued April 7, 1999
Decided September 24, 1999
COX, C.J., delivered the opinion of the Court, in which SULLIVAN, GIERKE, and
EFFRON, JJ., joined. CRAWFORD, J., filed an opinion concurring in the result.
Counsel
For Appellant: Lieutenant Mari-Rae Sopper, JAGC, USNR (argued).
For Appellee: Commander Eugene E. Irvin, JAGC, USN (argued); Colonel Kevin
M. Sandkuhler, USMC, and Major Clark R. Fleming, USMC (on brief).
Military Judges: Kenneth A. Krantz and Charles R. Hunt
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE
PUBLICATION.
Chief Judge COX delivered the opinion of the Court.
Appellant was convicted at a special court-martial of two specifications of
wrongfully using marijuana and one specification of distributing marijuana, in
violation of Article 112a, Uniform Code of Military Justice, 10 USC 912a. The
court-martial, comprised of officer members, sentenced appellant to confinement for
3 months, forfeiture of $583.00 pay per month for 3 months, reduction to E-1, and a
bad-conduct discharge. The convening authority approved the adjudged sentence.
We granted review of one issue in which appellant asks us to hold that his
arraignment was a "sham" arraignment, used only to stop the speedy-trial clock in
his case, and thus was insufficient because he was not brought to actual trial until 7
days later. See 51 MJ 131 (1998).
Appellant was arraigned on December 4, 1996, which was day 119 on the speedytrial clock. Appellant was tried on the charges pending before this court-martial on
December 11, 1996, 7 days after his arraignment. There was no pretrial confinement
in appellants case.
Immediately following appellants arraignment, the defense raised an oral motion,
later followed by a written motion to dismiss, alleging that the Government was
essentially conducting a "sham" arraignment that violated appellants right to a
speedy trial. The military judge denied the motion holding that the military speedytrial rule was "reasonabl[e]," and that it was "complied with in this case."
The conclusion whether an accused received a speedy trial is a legal question that is
reviewed de novo. See United States v. Thompson, 46 MJ 472, 475 (1997). The
military judges findings of fact are given "substantial deference and will be
reversed only for clear error." See United States v. Edmond, 41 MJ 419, 420 (1995),
quoting United States v. Taylor, 487 U.S. 326, 337, 108 S.Ct. 2413, 2419-20 (1988).
Although we are not required to defer to the military judges or the lower courts
legal conclusions, after due consideration we have no occasion to disagree with their
analyses.
The military judge ruled that arraignment of appellant was proper within the plain
language of the rule itself, RCM 707, Manual for Courts-Martial, United States
(1998 edition), and also through interpretation of the rule in light of the cases
leading to its enactment. See, e.g., Thomas v. Edington, 26 MJ 95 (CMA 1988);
United States v. Carlisle, 25 MJ 426 (CMA 1988). He went on further to state that
the Presidents decision to clarify the speedy-trial rules in a way that allows for a
lapse between arraignment and trial was not constitutionally barred, as long as the
accused is not restrained.
The Court of Criminal Appeals further noted that the pretrial processing of
appellants case appears "diligent," and that most of the delay occurred at the
Article 32, UCMJ, 10 USC 832, stage of the proceedings. That court could "find
no evidence of intentional or negligent actions" that would cause it to avoid applying
the plain language of RCM 707. Unpub. op. at 2-3 (May 27, 1998). We agree. RCM
707 clearly states:
(a) In general. The accused shall be brought to trial within
120 days after the earlier of:
(1) Preferral of charges;
***
(2) The imposition of restraint under R.C.M. 304(a)
(2)-(4); or
(3) Entry on active duty under R.C.M. 204.
(b) Accountability.
(1) In general. . . . The accused is brought to trial
within the meaning of this rule at the time of arraignment
under R.C.M. 904.
The Government thus has 120 days from the date of preferral to bring an accused to
trial. In order for an accused to be brought to trial, he must be "called upon to plead,"
the process commonly known as arraignment. RCM 904, Discussion; see also
United States v. Stokes, 39 MJ 771 (ACMR 1994), pet. denied, 41 MJ 100 (CMA
1994).
All of these events occurred in this case within the statutorily imposed period of
time, 120 days. Thus, the arraignment on day 119 occurred in the "nick of time" to
stop the speedy-trial clock. Appellants arraignment was properly conducted and
was not a "sham."*/ We are not at liberty, and do not desire, to unilaterally modify
clearly written Presidential rules that do not conflict with the Congressionally passed
Code or the Constitution. Cf. United States v. Davis, 47 MJ 484, 486 (1998).
Additionally, there is no reason to question appellants arraignment based on the
fact that the Government was unprepared to present its case on the merits
immediately following arraignment. In fact, arraignment serves to protect an
accuseds rights. After arraignment, the power of the military judge to process the
case increases, and the power of the convening authority to affect the case
decreases. See RCM 601(e)(2)(no referral of additional charges without accuseds
consent); RCM 603(d)(no major changes to charges without accuseds consent);
RCM 604(b) (power to withdraw charges limited); RCM 804(b)(1) (trial in absentia
permitted). Moreover, after being arraigned, appellant is still free to make a motion
to the military judge demanding speedy trial. See RCM 707(c)(2); RCM 905(b).
Thus, appellants argument here is unpersuasive.
The decision of the United States Navy-Marine Corps Court of Criminal Appeals is
affirmed.
FOOTNOTE:
* / The
primary definition of "sham" in the dictionary is "a trick that deludes."
Websters Tenth Collegiate Dictionary 1076 (1998). While theoretically such a
"trick" could be possibly staged at an arraignment, such as the case where the
Government never intends to go forward on charges, this case would be extreme.
Moreover, such an instance would violate the ethical rules governing lawyer
conduct. See Rule 3.3, ABA Model Rules of Professional Conduct (1998)(candor
toward the tribunal).
CRAWFORD, Judge (concurring in the result):
Military accused enjoy the right to a speedy trial as guaranteed by the Sixth
Amendment, the Due Process Clause of the Fifth Amendment, and by statute -Article 10, Uniform Code of Military Justice, 10 USC 810. They also enjoy a
right to a speedy trial as set forth in RCM 707, which is simple for the bench and bar
to follow: When arraignment falls within the 120-day period provided by RCM 707,
there is no speedy-trial violation.
As the majority states, "We are not at liberty, and do not desire, to unilaterally
modify clearly written Presidential rules that do not conflict with the
Congressionally passed Code or the Constitution." ___ MJ at (5). However, this
language points out the opinion's self-contradictory nature which suggests the
Court's willingness to craft exceptions to this "clearly written" rule on a case-by-case
basis. While the Government was not ready to proceed in the case at the time of
arraignment, as the court below indicated, the Government was diligent in
processing the case, unpub. op. at 2, and that court found "no evidence of intentional
or negligent actions by the Government which compel us to act." Id. at 3. I
disassociate myself from the dicta in this case setting forth new language which
contradicts RCM 707 as presently drafted. My view does not preclude the President
from drafting a "sham" rule. However, at this date, he has not.
As to the hypothetical set forth by the majority, that is, arraignment when the
Government never intends to go forward on the charges, military defendants would
be protected from such an action by the sources of rights set forth above.
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