1 M.J. 21 | United States Court of Military Appeals | 1975
OPINION OF THE COURT
The issue presented by this appeal is whether the accused was denied a speedy trial.
The parties agree the accused was placed in pretrial confinement on March 30, 1973. They also agree he was brought to trial on July 31 on all charges outstanding against him, so that the total period of the Government’s accountability for the timeliness of the prosecution was 123 days. If nothing further appeared, the charges would have to be dismissed on motion of the defense on the basis of the presumption that an unexplained delay of that length prejudi-cially violates the accused’s right to speedy disposition of the charges. United States v Burton, 21 USCMA 112, 44 CMR 166 (1971). The Court of Military Review concluded, however, that the delay between June 25 and July 31 was attributable to a "desire” by the accused that the charges for which he had been confined on March 30 be tried at the same time as other charges that were processed after his confinement. The court construed the request as an application for a continuance. As periods of delay requested by the defense are ex-cludable from the period of the Government’s accountability, the remaining period was insufficient to give rise to the presumption of prejudice. Without the presumption, the length and circumstances of the time required to bring the accused to trial were deemed insufficient to constitute denial of a speedy trial.
Most of the relevant facts are contained in a stipulation admitted into evidence at a hearing on the accused’s motion to dismiss all the charges for lack of speedy trial. The stipulation indicates the accused was indicted by the State of Tennessee for auto theft. On learning the accused faced other charges by the military, the civilian district attorney offered to dismiss the indictment so that "all charges” against the accused "might be disposed of’ at the same time. The Navy elected to prosecute the auto theft charge with the others for which the accused had been confined on March 30 and as to which an Article 32 investigation had been completed 57 days earlier. On June 25, trial counsel informed defense counsel of the Government’s intention to prosecute the accused for the auto theft. He "offerfed] to proceed as soon as possible” on the original charges
Our reading of the record convinces us that the accused did not ask the Government to stay or slow the processing of the original charges, and the Government did not agree to do so in response to such a request. The decision as to how the Government would proceed was left entirely to it. The point was made on two separate occasions. The first was on June 25, when defense counsel advised trial counsel that "the choice of how to proceed is up to the government;” the second was in accused’s written waiver of the Article 32 investigation of the auto theft charge in which he advised the appropriate court-martial authority that what was done would be entirely "as you deem proper.” The accused’s stated desire for a single trial of all offenses did not excuse the Government from proceeding with due diligence in the prosecution of each of those offenses. United States v Reitz, 22 USCMA 584, 48 CMR 178 (1974).
Other circumstances are relied upon by the Government to overcome the presumption of prejudicial delay. The principal contention is that, even without accused’s consent to the delay, "adequate justification” existed to exclude 41 days from the 123-day period, thereby reducing the Government’s accountability to a period less than that giving rise to the Burton presumption.
The auto theft was committed on February 28. On March 2, civilian authorities arrested the accused for this offense, and he was later indicted by a grand jury. On March 19, he posted bond, was released by the civilian authorities, and returned to military control. The next material event is that accused was placed in pretrial confinement on March 30 for housebreaking and larceny, committed between March 23 and March 25. On June 20, the county district attorney telephoned trial counsel to advise that he would have the civilian charges against the accused dismissed if the military would prosecute them. Concluding that the military authorities could exercise jurisdiction over those offenses,
The sequence of events has produced two points of disagreement between the parties. The first- deals with the effect of the additional charges on the Government’s obligation to bring the original
Speedy trial accountability begins either with imposition of pretrial restraint upon the accused or presentment of a formal charge, whichever first occurs. When only a single offense is involved, the determination of the beginning of the Government’s accountability is simply a matter of ascertaining the dates of the operative events. However, other problems are introduced if the accused has committed offenses that were not known at the time of imposition of restraint or formal charge, or if offenses are committed after restraint or charge. In those instances, each "set of charges involves a different time of beginning and different steps in the course that . . . [brings] them to trial.” United States v Mladjen, 19 USCMA 159, 161, 41 CMR 159, 161 (1969). The beginning date of accountability applicable to the original charge does not attach to the later-discovered or later-committed offense; instead, the period of accountability must be separately calculated. United States v Marell, 23 USCMA 240, 49 CMR 373 (1974); United States v Johnson, 23 USCMA 91, 48 CMR 599 (1974).
When different charges become known, or are committed at different times, two procedural principles are operative. The first is the Manual policy that all known offenses "should be tried at a single trial.” Manual for Courts-Martial, United States, 1969 (Rev.), paragraph 31 g. The second is that every charge must be speedily brought to trial. This case and others that have come to our attention since Johnson convince us that while the Manual policy on joinder of offenses may provide advantages to the accused as well as the Government, he, not the Court, is better able to judge whether those advantages outweigh for him the disadvantages of postponement of trial on the original charges. However, preference as to a particular course of proceeding is not the frame of reference for the Court. The Manual provision is only a statement of policy; the speedy disposition of charges for which an accused is confined is a command of Congress. When a provision of the Manual collides with a provision of the Uniform Code, the former must yield to the latter. United States v Smith, 13 USCMA 105, 32 CMR 105 (1962); United States v Davis, 11 USCMA 407, 29 CMR 223 (1960). We conclude, therefore, that the intercession of a new charge does not automatically authorize deferment of the trial of the original charges for which the accused had been confined. As more than 90 days elapsed before the accused was brought to trial on the original charges, and he did not, as noted earlier, request delay, and no extraordinary reasons justified delay, the Burton presumption was operative, and the original charges should have been dismissed.
Left for consideration is the additional charge and its specification. Appellate defense counsel contend that the Government’s accountability for the prosecution of this offense began on March 19.
Measured by the Johnson standard, we are satisfied that the earliest date the auto theft charge could reasonably have been considered by the military was June 26, the day trial counsel received the case file from the district attorney. The stipulation of facts indicates that on March 19, a military lawyer was "detailed to represent” the accused in connection with the charge of unauthorized absence from March 2 to March 19, the period the accused was in custody of the civilian authorities. Although appointed for a limited purpose, the lawyer advised the accused "regarding auto theft and potential administrative discharge proceedings.”
The decision of the Court of Military Review is reversed as to all findings of guilty, except those pertaining to Additional Charge I and its specification, and as to the sentence. The findings of guilty as to all charges except Additional Charge I and its specification are set aside, and those charges are dismissed. The record of trial is returned to the Judge Advocate General for submission to the Court of Military Review for reassessment of the sentence on the basis of the remaining findings of guilty.
See O’Callahan v Parker, 395 US 258 (1969); United States v Wills, 20 USCMA 8, 42 CMR 200 (1970).
At trial, the accused was acquitted of the alternative charge of receiving stolen property.
Article 35, Uniform Code of Military Justice, 10 USC § 835.
Appellate defense counsel contend that on that date naval authorities knew the Federal Government had exclusive jurisdiction over offenses committed within the bounds of the air station and were negligent in not asserting that power against the civilian authorities. See O’Callahan v Parker, supra; United States v Cook, 19 USCMA 13, 41 CMR 13 (1969). Government counsel contend that the naval authorities had no reasonable basis upon which to contest with the civilian authorities for jurisdiction. On the record, there is no doubt that the civilian authorities acted in good faith belief that they had jurisdiction, especially since the accused was found in possession of the stolen auto while he was in the civilian community and represented to the civilian police that he had purchased the car under circumstances indicating that the transaction was completed in the civilian community. The same circumstances convince us that the naval authorities were justified in accepting the exercise of jurisdiction by the civilian authorities and not investigating the charge because, as the NIS agent testified, it was a "downtown” matter. As the facts do not support the defense contention, we need not consider whether, as a matter of law, the Government can constructively be charged with knowledge of facts that might have been revealed by earlier investigation.
The fair inference from the description of the advice is that the discharge would be predicated upon conviction by a civilian court, as provided by article 3420240 of the Bureau of Naval Personnel Manual.
Article 35, UCMJ, 10 USC §835. Of course, the accused has the right to refuse to waive the waiting period, but the resulting period of delay is a factor for consideration in assessing the reasonableness of the time required to bring the accused to trial on this charge,