UNITED STATES, Aрpellee, v. Timothy R. DOTY, Hospital Corpsman Third Class, U.S. Navy, Appellant.
No. 98-0949. Crim.App. No. 97-0745.
U.S. Court of Appeals for the Armed Forces
Sept. 24, 1999
51 M.J. 464
Argued April 7, 1999.
For Appellant: Lieutenant Mari-Rae Sopper, JAGC, USNR (argued).
For Appellee: Commander Eugene E. Irvin, JAGC, USN (argued); Colonеl Kevin M. Sandkuhler, USMC, and Major Clark R. Fleming, USMC (on brief).
Chief Judge COX delivered the opinion of the Court.
Appellant was convicted at a special court-martial of two specificatiоns of wrongfully using marijuana and one specification of distributing marijuana, in violation of
We granted reviеw 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 сase, 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 Decembеr 4, 1996, which was day 119 on the speedy-trial 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 appellant‘s case.
Immediately following appellant‘s arraign-
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 judge‘s 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, 101 L.Ed.2d 297 (1988). Although we are not required to defer to the military judge‘s or the lower court‘s 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-Mаrtial, 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 President‘s decision to clarify the speedy-trial rules in a way that allows for a lapse between arraignment and triаl was not constitutionally barred, as long as the accused is not restrained.
The Court of Criminal Appeals further noted that the pretrial processing of appellant‘s case appears “diligent,” and that most of the delay occurred at the
(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 frоm 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 tо 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. Appеllant‘s 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 appellant‘s 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 accused‘s rights. After arraignment, the power of the military judge
The decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.
CRAWFORD, Judge (concurring in the result):
Military accused enjoy the right to a speedy trial as guaranteed by the Sixth Amendmеnt, 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 Congrеssionally passed Code or the Constitution.” 51 MJ at 465. However, this language points out the opinion‘s self-contradictory nature which suggests the Court‘s willingnеss to craft exceptions to this “clearly written” rule on a case-by-case basis. While the Government was not ready to procеed in the case at the time of arraignment, as the court below indicated, the Government was diligent in processing the case, unpub. оp. 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 thе 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.