22 M.J. 631 | U.S. Navy-Marine Corps Court of Military Review | 1986
In accordance with his pleas, appellant was found guilty, by a general court-martial composed of officer and enlisted members, of one specification of possession of marijuana, three specifications of distribution of marijuana, and two specifications of introduction of marijuana onto a military installation with intent to distribute, all in violation of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934. He was sentenced to a bad conduct discharge, confinement at hard labor for six months, total forfeiture of all pay and allowances, and reduction to pay grade E-l. The convening authority approved the sentence as adjudged, but suspended forfeitures in excess of $413.00 per month for 6 months for the period of confinement and 1 year thereafter. Before this Court, appellant makes the following assignments of error:
I
THE MILITARY JUDGE ERRED IN FAILING TO DISMISS THE CHARGE AND SPECIFICATIONS FOR THE GOVERNMENT’S FAILURE TO TRY APPELLANT WITHIN 120 DAYS AFTER PREFERRAL OF CHARGES.
II
SPECIFICATION 6 OF THE CHARGE (WRONGFUL INTRODUCTION OF 7.27 GRAMS OF MARIJUANA WITH INTENT TO DISTRIBUTE) IS MULTIPLI-CIOUS FOR FINDINGS WITH SPECIFICATION 7 OF THE CHARGE (WRONGFUL DISTRIBUTION OF THE SAME MARIJUANA) AND SHOULD BE DISMISSED. UNITED STATES V. BROWN, 19 M.J. 63 (C.M.A.1984).1
I
RULE FOR COURTS-MARTIAL (RU.M.) 707 — SPEEDY TRIAL
As he did in a pretrial motion to dismiss, which was denied by the military judge, appellant claims that he was not brought to trial within 120 days after notice to him of the preferral of charges, as mandated by
R.C.M. 707(c) provides that certain periods of time are to be excluded when determining whether the 120 day period of R.C.M. 707(a) has run. 707(c)(3) provides that “[a]ny period of delay resulting from a delay in a proceeding or a continuance in the court-martial granted at the request or with the consent of the defense” is such an exclusionary period. (Emphasis added). In the instant case, the Government and defense differ with respect to the characterization of the period of time from 26 November 1984 to 3 January 1985. We find that the evidence, presented through mutual stipulations of chronologies of events and through notes and memorandums offered as exhibits during the argument on the defense motion to dismiss, indicates that the following sequence of events occurred during the disputed time period:
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Our analysis of R.C.M. 707(c)(3) and the above factual situation leads us to make the following determinations concerning the responsibility for delay with respect to the period of time between 26 November and 3 January.
First of all, the Government does not trigger defense delay merely by stating that it is ready to proceed to trial or ready to proceed with the Article 32 investigation. Furthermore, the defense did not impliedly consent to the delay between 26 November and 3 December merely by suggesting to trial counsel that a convenient date to discuss docketing the Article 32 hearing would be 3 December. The defense suggestion did not cause any delay in any “proceeding” as the government notification of 26 November failed to schedule any event which could reasonably be construed to be a “proceeding” as that term is used in R.C.M. 707(c)(3).
The next identifiable portion of the 26 November to 3 January contested time period, 3 December to 12 December, presents a somewhat more difficult analytical situation. While the 3 December scheduled meeting between counsel arguably can be said not to constitute a “proceeding,” the failure of defense counsel to attend that meeting did ultimately cause a delay in a proceeding (the Article 32 proceeding) since the purpose of the meeting was to set a date for the pretrial proceeding. Additionally, the failure of the meeting to occur was at the express “request” of the defense. That this defense-canceled meeting could not be scheduled for nearly another two months certainly cannot be attributed to any fault of the Government, whose counsel was working diligently
The period of time between 13 December and 3 January is more clearly attributable to the defense and therefore ex-cludable in determining whether the 120 days of Rule 707 has run. The 12 December scheduled meeting was canceled by the appellant because of his dismissal of his original civilian counsel and retention of new civilian counsel. Any period of an accused’s requested delay so he could obtain the services of civilian counsel is not chargeable to the Government. United States v. Hines, 2 M.J. 1148 (N.C.M.R. 1975). See also United States v. Calla
Thus, we subtract an additional 30 days from the 143 days the appellant attributes to the Government after the defense concessions. This would result in the time attributable to the Government for the purposes of Rule 707(a) in the instant case as amounting to a total of 113 days. Thus, appellant was brought to trial within the 120 day limit of R.C.M. 707 and this assignment of error is devoid of merit.
II
MULTIPLICITY
The offense of wrongful introduction of a controlled substance with the intent to distribute is not multiplicious for findings with the offense of wrongful distribution of a controlled substance. United States v. Hammersley, No. 84 1264 (NMCMR 11 February 1985) (decided upon return of the record to the Court of Military Review for consideration of the multiplicity issue in light of United States v. Zupancic, 18 M.J. 387 (C.M.A.1984); the Court determined the offenses were not multiplicious in light of both Zupancic and United States v. Brown, 19 M.J. 63 (C.M. A.1984)). See United States v. Decker, 19 M.J. 351 (C.M.A.1985). See also United States v. Beardsley, 13 M.J. 657 (N.M.C.M. R.1982) and United States v. Beesler, 16 M.J. 988 (A.C.M.R.1983).
Accordingly, the findings and sentence, as approved on review below, are affirmed.
. A third assignment of error — that during providency the judge erroneously inquired into and found the appellant guilty of a specification to which he had pleaded not guilty — was disposed of through a certificate of correction from the court reporter which corrected a typographical error in the record of trial and which indicates that the accused actually did plead guilty to the specification in question.
. R.C.M. 707(a) provides that “[t]he accused shall be brought to trial within 120 days after notice to the accused of preferral of charges under R.C.M. 308 or the imposition of restraint under R.C.M. 304, whichever is earlier.”
. R.C.M. 707(e) provides the remedy for a failure to comply with the 120 day rule: “Failure to comply with this rule shall result in a dismissal of the affected charges upon timely motion by the accused."
. Article 32, UCMJ, 10 U.S.C. § 832.
. Contrary to appellant's assertions, we view trial counsel’s efforts to docket the Article 32 proceeding and to "get the ball rolling” in this case as nothing less than diligent and professional. Furthermore, she did an excellent job of establishing a record of the Government’s various attempts to schedule meetings with the defense to docket the Article 32 proceeding, and of the defense’s concomitant postponements of these scheduled meetings. Her failure to docket a date certain for the Article 32 hearing on 26 November, as soon as she had declared the
Case management is almost always made more difficult, as a practical matter, when civilian counsel is involved because counsel is remotely located, usually busy with a myriad of civilian court dates and other meetings and not responsible to the Government for his whereabouts. It may well be that prudence demands that trial counsel utilize more aggressive and formal means, including the invocation of the offices of the military judge and convening authority, to control trial dates and counsel appearances when civilian counsel are involved.
United States v. Vail, No. 85 3975, slip opinion at 2 n. 2 (NMCMR 19 March 1986).