United States v. Leahr, 2014 CAAF LEXIS 746

Appellant (Coast Guard) was originally preferred with charges March 1, 2011; arraigned July 7, 2011; trial set for November 8, 2011. After a new alleged assault surfaced, the convening authority signed a "Withdrawal and Dismissal of Charges" on September 1, 2011 stating the original charges were "withdrawn and dismissed without prejudice" to enable a single trial on all charges.
A new charge sheet (re-preferred Sept. 6, 2011) re-alleged the original offenses, added one assault specification, and amended Article 134 specifications to include terminal-element language; a second Article 32 was held (Sept. 29, 2011) limited to the new allegation.
Appellant moved to dismiss under R.C.M. 604(b) (improper withdrawal) and under R.C.M. 707 (speedy-trial) arguing the convening authority’s action was only a withdrawal (not a dismissal) so the speedy-trial clock continued from March 1, 2011; arraignment on the re-preferred charges occurred Nov. 8, 2011.
The military judge denied both motions; the Coast Guard CCA affirmed. The service court granted review of the speedy-trial and R.C.M. 604(b) questions (and later considered a judicial-impartiality claim based on judge comments).
The Court held the convening authority intended to, and did, dismiss the original charges (thereby restarting the R.C.M. 707 clock), and that withdrawal/dismissal for the purpose of judicial economy was a proper reason under R.C.M. 604(b); the convictions and sentence were affirmed.

Issue	Appellant's Argument	Government's Argument	Held
1. Whether R.C.M. 707 speedy-trial rights were violated by the convening authority’s Sept. 1 action	Leahr: The Sept. 1 action was only a withdrawal, not a dismissal, so the speedy-trial clock continued from March 1, 2011 and trial in Nov. 2011 was untimely	The Sept. 1 document effectively dismissed the original charges, which restarts the 120-day clock; the re-preferal created a new time period	Held: Sept. 1 action was a dismissal (affirmative actions and notice); no R.C.M. 707 violation.
2. Whether re-referral violated R.C.M. 604(b) because the withdrawal was for an improper purpose	Leahr: Withdrawal/dismissal was a subterfuge to evade joinder rule and circumvent protections after arraignment	Govt: Withdrawal/dismissal was for judicial economy and joinder of all known charges—legitimate command reason; no unfair prejudice	Held: Withdrawal/dismissal was for a proper reason (judicial economy) and did not unfairly prejudice Appellant; re-referral permissible.
3. Whether military judge’s remarks denied Appellant a fair trial	Leahr: Judge’s comments suggested bias and prejudged guilt, warranting relief	Govt: Comments were not sufficiently partisan or pervasive to undermine fairness	Held: Comments did not show deep-seated favoritism or bias; no denial of fair trial.

Jones v. United States, 526 U.S. 227 (defective specification lacking terminal element warrants dismissal)
United States v. Britton, 26 M.J. 24 (C.M.A. 1988) (distinguishes withdrawal from dismissal; withdrawal alone does not restart speedy-trial clock)
United States v. Underwood, 50 M.J. 271 (C.A.A.F. 1999) (proper reasons for withdrawal include judicial economy; must not unfairly prejudice accused)
United States v. Tippit, 65 M.J. 69 (C.A.A.F. 2007) (notice to accused that charges were dismissed supports finding of dismissal)
United States v. Anderson, 50 M.J. 447 (C.A.A.F. 1999) (continued restraints do not necessarily negate an otherwise clear dismissal)
Liteky v. United States, 510 U.S. 540 (judicial-bias standard: objective test, deep-seated favoritism/antagonism required)
United States v. Koke, 34 M.J. 313 (C.M.A. 1992) (trying all known charges in a single trial can be a proper reason for withdrawal/repreferal)
United States v. Martinez, 70 M.J. 154 (C.A.A.F. 2011) (review of judicial impartiality uses objective totality-of-circumstances test)
United States v. Dooley, 61 M.J. 258 (C.A.A.F. 2005) (dismissal with prejudice under R.C.M. 707(d) appropriate where further prosecution would be futile or unduly prejudicial)