United States v. LeeUnited States v. Lee
PUBLISHED OPINION OF THE COURT
In 2005, a military judge sitting as a general court-martial convicted the appellant, following mixed pleas, of three specifications of burglary, one specification of conduct unbecoming an officer and gentleman, three specifications of fraternization, and five specifications of indecent assault in violation of Articles 129, 133, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 929, 933, and 934. The military judge sentenced the appellant to confinement for three years, forfeiture of all pay and allowances, and a dismissal. The convening authority (CA) approved the sentence as adjudged and, except for the dismissal, ordered it executed.
On 26 June 2007, we affirmed the appellant’s conviction of three specifications of burglary, three specifications of fraternization, and four specifications of indecent assault, and affirmed the sentence. United States v. Lee, No. 200600543,
On 13 June 2008, the Court of Appeals for the Armed Forces (CAAF) set aside our decision and returned the case to the Judge Advocate General for a fact-finding hearing related to a potential conflict of interest involving the appellant’s detailed defense counsel. United States v. Lee,
Our 2007 decision deemed the original Article 133 charge to be multiplicious with the burglary, fraternization and indecent assault convictions then before us. Nevertheless, on 16 February 2012, prior to the rehearing precipitating our current review, the appellant proffered a pretrial agreement to the CA offering to plead guilty to two specifications under Article 133, UCMJ, in lieu of the then pending referred charges. Two specifications under Article 133 were in fact preferred on 24 February 2012 and the CA accepted the plea offer on 1 March 2012. The specifications contain the same misconduct comprising the original Article 133 offense, with clarifications and omissions arrived at through the apparent agreement of the parties.
A trial was held on 13 March 2012. A military judge sitting as a general court-martial convicted the appellant, pursuant to his pleas, of two specifications of conduct unbecoming an officer and a gentleman in violation of Article 133, UCMJ, 10 U.S.C. § 933. Pursuant to a pretrial agreement, the Government withdrew and dismissed all of the charges that had been returned for rehearing. The appellant was sentenced to
The guilty findings now before us are based on a charge not specifically authorized for rehearing in our 28 July 2011 decision, but constitute a reformulation of an Article 133 charge originally before this court upon initial Article 66 review in 2007. The current guilty findings are accompanied by an approved sentence that falls below the court’s jurisdictional requirement established in Article 66(b)(1), UCMJ.
The appellant assigns three errors, averring that a due process violation occurred in the post-trial processing; that post-trial delay warrants Article 66(c) relief; and that the military judge committed plain error by not reconsidering her award of Article 13 confinement credit following sentencing. The Government joins issue on the assigned errors, but asserts that this court does not have jurisdiction to review this court-martial.
Background
The charge and specifications before us stem from the appellant’s drunken conduct with enlisted personnel occurring during a brief temporary additional duty assignment in Northern Ireland in January of 2004. With the facts adequately presented during the extensive appellate history of this ease, only a summary reference to the facts will be introduced as necessary to address the assigned errors.
Continuing Jurisdiction
The Government avers that we face a question of first impression, in that all of the charges and specifications upon which we authorized a rehearing have been withdrawn and dismissed, effectively ending the first trial. As a consequence, the Government argues, we have before us an entirely new charge and a sub-jurisdictional sentence, which would only come before us upon referral from the Judge Advocate General per Article 69(b), UCMJ. We disagree.
Once this court acquires jurisdiction, “no action by a lower court or convening authority will diminish it.” United States v. Johnson III,
Jurisdiction does not depend on the qualifying nature of the sentence resulting from a rehearing. Johnson III,
While the form of the charges has indeed changed, the events of January 2004 leading to the general court-martial of the appellant have not. The substance of the misconduct — a Marine Officer engaged in wrongful and dishonorable actions with enlisted Marines while drunk — is now presented, by agreement of the parties, as conduct unbecoming, versus the numerous constituent disorders and actions giving rise to the previous charges. These offenses, massaged through pretrial negotiation into this state and agreed to by the CA, were derived from the same facts previously before this court and involve a subset of the same victims. The actions of the CA in agreeing to the appellant’s proffer of pleas upon rehearing did not sever jurisdiction. We additionally note that the CA referred the revised additional charge and specifications to the same court-martial as
Statute of Limitations
While not raised as error, the additional charge and its specifications, referred to court-martial in 2012 but alleging misconduct in 2004, facially present a potential statute of limitations question that was not specifically addressed or waived. Based on our review, we find no error and hold that the charge and its specifications are not barred by the statute of limitations. Under Article 43, UCMJ, “the critical question ... is whether the ‘sworn charges and specifications’ were timely received, not whether the same piece of paper that contains those charges at the court-martial was the same piece of paper that conveyed those charges to the summary court-martial authority.” United States v. Miller,
Here, any statute of limitations assertion would be even weaker than in Miller because the change occurred within the limitations period, notwithstanding the passage of time during appellate review. The statute of limitations in this case was tolled in May 2004 and the interceding appellate review of this case in toto did not serve to extinguish the analogous superseding indictment of the Ar-tide 133 offense based upon the statute of limitations. It remained tolled until, at least, July 2011 when the remaining charges, including those giving rise to the multiplicity relief with the original Article 133 offense, were set aside. Cf. United States v. Grady,
Assignments of Error
The appellant asserts that 2,654 days elapsed between his original sentencing on 4 May 2005 and our receipt of the record of trial of his most recent rehearing on 14 August 2012.
We find that no error materially prejudicial to the appellant’s substantial rights remains. Arts. 59(a) and 66(c). The findings and sentence as approved by the CA are affirmed.
Notes
. The revised charge and specifications were referred subject to the following instructions: "To be tried in conjunction with the Charges and Specifications referred on 13 Feb 2012.” Additional Charge Sheet.
. From the conclusion of the appellant's retrial to the date of CA’s action was 141 days, which included a 20-day extension of time granted to the appellant to prepare matters in clemency. The delay in this case was not unreasonable and does not constitute a denial of due process.