United States v. Thompson ( 2010 )

UNITED STATES, Appellee
v.
Christine N. THOMPSON, Private
U.S. Army, Appellant
No. 09-0145
Crim. App. No. 20060901
United States Court of Appeals for the Armed Forces
Argued November 10, 2009
Decided February 1, 2010
EFFRON, C.J., delivered the opinion of the Court, in which
BAKER, ERDMANN, and RYAN, JJ., joined. STUCKY, J., filed a
separate opinion concurring in the result.
Counsel
For Appellant: Captain Tiffany K. Dewell (argued); Colonel Mark
Tellitocci, Lieutenant Colonel Matthew M. Miller, and Major
Bradley M. Voorhees (on brief); Captain Melissa E. Goforth
Koenig.
For Appellee: Major Adam S. Kazin (argued); Colonel Norman F.
J. Allen III and Lieutenant Colonel Martha L. Foss (on brief);
Captain Lynn I. Williams.
Military Judge: Charles S. Walters
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Thompson, No. 09-0145/AR
Chief Judge EFFRON delivered the opinion of the Court.
The military judge presiding at Appellant’s general court-
martial granted Appellant’s motion to dismiss the charges with
prejudice, citing a violation of Appellant’s speedy trial rights
under Article 10, Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 810 (2006). The Government appealed that decision to
the United States Army Court of Criminal Appeals under Article
62, UCMJ, 10 U.S.C. § 862 (2006). The Court of Criminal Appeals
reversed the military judge and remanded the case for further
proceedings on the reinstated charges before the general court-
martial. United States v. Thompson, No. ARMY 20060901, 2006 CCA
LEXIS 479, at *18 (A. Ct. Crim. App. Nov. 30, 2008)
(unpublished).
Following remand, the court-martial, consisting of the
military judge sitting alone, convicted Appellant, pursuant to
her pleas, of attempted larceny, three specifications of absence
without leave, six specifications of larceny, and four
specifications of forgery, in violation of Articles 80, 86, 121,
and 123, UCMJ, 10 U.S.C. §§ 880, 886, 921, 923 (2006). The
sentence adjudged by the court-martial and approved by the
convening authority included a bad-conduct discharge and
confinement for ten months.
The United States Army Court of Criminal Appeals affirmed
the findings and sentence in a summary decision. United States
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United States v. Thompson, No. 09-0145/AR
v. Thompson, No. ARMY 20060901 (A. Ct. Crim. App. Oct. 6, 2008)
(unpublished). On Appellant’s petition, we granted review of
the following issue:
WHETHER THE ARMY COURT ERRED WHEN IT RULED THAT
APPELLANT’S RIGHT TO A SPEEDY TRIAL UNDER ARTICLE
10, UCMJ, WAS NOT VIOLATED.
For the reasons set forth below, we affirm.
I. BACKGROUND
A. PRETRIAL CONFINEMENT AND CASE PROCESSING
1. Chronology
The following summarizes the action on key dates pertinent
to Appellant’s motion to dismiss the charges:
• March 31, 2006: Appellant placed in pretrial
confinement.
• April 6, 2006: Charges preferred against Appellant,
consisting of: (1) two specifications of absence without
leave; and (2) two specifications of larceny related to
the on-post theft of another servicemember’s wallet.
• June 22, 2006: Additional charges preferred, relating to
the use and attempted use of a bank card from the wallet.
• June 23, 2006: Investigation under Article 32, UCMJ, 10
U.S.C. § 832 (2006), ordered by the Special Court-Martial
Convening Authority.
• June 30, 2006: Article 32 hearing scheduled, but delayed
pursuant to two defense requests.
• August 7, 2006: Article 32 hearing held.
• August 9, 2006: Article 32 investigation report
completed.
• August 10, 2006: Article 32 recommendation forwarded to
the General Court-Martial Convening Authority.
• August 17, 2006: General Court-Martial Convening
Authority referral of charges for trial.
• August 18, 2006: Service of charges on Appellant.
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• August 18, 2006: Appellant submits demand for speedy
trial under Article 10, UCMJ, along with a motion to
dismiss the charges for violation of speedy trial rights.
• August 23, 2006: Arraignment and litigation of speedy
trial motion.
2. Litigation of the speedy trial motion
During the hearing on the speedy trial motion, Military
Police Investigator (MPI) Nicholas L. Calabris testified that he
and MPI Joseph W. Lomas conducted two related investigations
regarding Appellant. The investigation by MPI Calabris focused
on the theft of bank cards that were in the wallet, a camera,
and a laptop. The investigation by MPI Lomas addressed
unauthorized use of one of the bank cards. The investigation
into the use of the bank card involved a joint investigation
with civilian law enforcement because the alleged uses of the
bank card occurred off-post.
MPI Lomas testified that he completed his witness
interviews on April 3. He added that difficulties in
coordinating with local law enforcement investigators delayed
completion of the investigation into the off-post use of the
bank card. He attempted to contact the local detective for
approximately thirty to forty days. He was then informed by the
staff judge advocate’s office that he did not need to transfer
any evidence to the civilian police because the military was
prosecuting all of the offenses.
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MPI Calabris testified that his involvement in the
investigation into the theft of the bank cards, camera, and
laptop began on May 9, following deployment of the original
investigator. He stated that the investigative file indicated
that the first investigator had obtained statements from
Appellant and the alleged victims by the end of the first week
of April. He added that the file did not reflect investigative
activity from April 6 until he took over the case on May 9. He
explained that when he took over the investigation, he
determined that he could complete the investigation after
conducting a further interview of Appellant. On May 10, he
concluded that he could not conduct a further interview after
learning that Appellant had retained an attorney.
MPI Calabris testified that he did not close his
investigation on May 10 because he was waiting for MPI Lomas to
close his related investigation. He added that MPI Lomas kept
his case open through May while attempting to contact local
police for the purpose of sharing evidence and information
related to the case.
MPI Lomas closed his investigation on June 2. After
receiving evidence from the civilian police department on May
31, MPI Calabris made a subsequent but unsuccessful attempt to
have further contact with the civilian officials. After not
receiving a response, he closed his investigation on June 26.
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The second trial counsel assigned to Appellant’s case,
Captain Daniel W. Dalrymple, testified that he inherited the
case from the first trial counsel on May 15. He testified that
in an effort to move the case towards trial, he took a number of
actions, including conferring with other trial counsel and
commanders about the case, drafting additional charges,
conducting interviews, coordinating with local civilian
prosecuting and law enforcement officials, and drafting a
referral memorandum for the convening authority.
Appellant testified that she was confined in an isolation
cell in the local county jail. Her cell had no windows or
openings other than a food chute through which she received her
meals. She had no cellmates, no access to television, and
limited access to telephones. Her recreation time was
restricted to once a week. She had access to a library, but not
a law library. She was permitted to leave the county jail under
escort for a brief period to attend her father’s funeral, but
she remained shackled at his funeral. She stated that she did
not receive a chain of command visit while in pretrial
confinement, but she did meet with her military and civilian
counsel.
Following presentation of the evidence, the military judge
granted the defense motion and dismissed all charges and
specifications with prejudice. After the Government filed a
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motion for reconsideration, the military judge held a further
hearing, allowing the Government to present testimony from two
additional witnesses in support of the motion for
reconsideration.
The initial trial counsel assigned to the case, Captain
Daniel Myers, who was replaced by Captain Dalrymple as his unit
prepared for deployment, testified as to his workload during the
period in which he had exercised responsibility for the case.
He stated that he worked seventy to eighty hours per week during
that period. He had three cases docketed for trial between
March 31 and May 15, and he had a motions hearing for another
case during this time period. He also spent four days on
temporary duty assignment for a training course, adding that he
had requested excusal from the training, but his request was
denied. He took leave in conjunction with that trip, which was
extended due to bad weather. He also spent approximately six to
eight hours completing pre-deployment paperwork. With respect
to Appellant’s case, he stated that he had responded in early
April to a defense inquiry as to the status of the
investigation. He also made telephone calls and sent e-mails
with regard to transferring Appellant to a different command and
resolving a resultant pay problem. He stated that he did not
proceed towards trial with the charges preferred on April 6
because he was waiting for the investigation of the other
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United States v. Thompson, No. 09-0145/AR
suspected offenses to be completed to ensure that all offenses
were prosecuted in one court-martial.
The Chief of Justice for III Corps, Lieutenant Colonel
Steven M. Brodsky, testified that Captain Myers and the three
other trial counsel serving in his office were “extremely busy”
during the spring of 2006. He testified that Captain Myers
worked on a particularly demanding court-martial at the time.
Lieutenant Colonel Brodsky stated that he could not transfer any
of Captain Myers’s cases to another trial counsel because the
office was understrength at the time and all his prosecutors
were very busy.
Following the hearing, the military judge denied the
Government’s motion for reconsideration, concluding that the
Government had failed to exercise reasonable diligence during
the thirty-seven day period from April 8, 2006, through May 14,
2006 -- the day prior to the assignment of the second trial
counsel, Captain Dalrymple, to the case. In denying the motion,
the military judge reaffirmed his earlier ruling dismissing the
charges with prejudice.
B. SUBSEQUENT PROCEEDINGS
The Court of Criminal Appeals reversed the military judge,
vacated the dismissal of charges, and returned the case to the
military judge for further proceedings. Thompson, 2006 CCA
LEXIS 479, at *18. Before the court-martial reconvened,
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Appellant entered into a pretrial agreement which included a
statement that she agreed to:
[v]oluntarily waive all motions which can be
waived under applicable statutes, caselaw, and
public policy. I further agree that, as of the
date of this Offer, I have not been confined
under unduly rigorous circumstances during
pretrial confinement, nor have I been treated in
a manner so excessive as to constitute punishment
under Article 13 of the UCMJ.
During the ensuing plea inquiry, the military judge expressed
concern that the second sentence in the provision might render
the plea improvident. He noted that while Appellant could waive
any motion for pretrial punishment credit under Article 13, the
factual assertions in the second sentence of the provision
appeared to be inconsistent with her prior testimony about
confinement and his findings of fact about the conditions of
confinement, which had not been overturned during the Article 62
interlocutory appeal. Trial counsel agreed “that there’s at
least a basis for an Article 13 credit motion,” and that the
purpose of the sentence in the agreement was to memorialize
Appellant’s waiver of the motion. During further colloquy with
the parties, the military judge clarified that he would permit
Appellant to agree to waive any Article 13 motion, but that he
would treat the second sentence of the provision as being
“stricken out of your offer.” Appellant then agreed to waive
any Article 13 motion. The military judge then accepted
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Appellant’s plea, and the trial proceeded to completion. We now
consider Appellant’s Article 10 speedy trial claim on direct
review.
II. DISCUSSION
A. SPEEDY TRIAL REVIEW UNDER ARTICLE 10
When a servicemember is placed in pretrial confinement,
“immediate steps shall be taken” to inform the accused of the
charges and to either bring the accused to trial or dismiss the
charges. Article 10, UCMJ. “We have consistently noted that
Article 10 creates a more exacting speedy trial demand than does
the Sixth Amendment.” United States v. Mizgala, 61 M.J. 122,
124 (C.A.A.F. 2005) (citations omitted). The procedural
framework for analyzing Article 10 issues examines the length of
the delay, the reasons for the delay, whether the accused made a
demand for a speedy trial, and prejudice to the accused. Id. at
129. Although the procedural framework is derived from the
Sixth Amendment test set forth by the Supreme Court in Barker v.
Wingo, 407 U.S. 514 (1972), we have emphasized that because
Article 10 imposes a more stringent speedy trial standard than
the Sixth Amendment, “Sixth Amendment speedy trial standards
cannot dictate whether there has been an Article 10 violation.”
Mizgala, 61 M.J. at 127; see id. at 129 (noting that the
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military judge erred in limiting consideration of the procedural
framework to a Sixth Amendment analysis).
We use the procedural framework to analyze Article 10
claims under the “immediate steps” standard of the statute and
the applicable case law. See id. at 124. Article 10 does not
require “constant motion, but reasonable diligence in bringing
the charges to trial.” United States v. Cossio, 64 M.J. 254,
256 (C.A.A.F. 2007) (citations and quotation marks omitted).
“Short periods of inactivity are not fatal to an otherwise
active prosecution.” Mizgala, 61 M.J. at 127. In conducting
our analysis, “we remain mindful that we are looking at the
proceeding as a whole and not mere speed.” Id. at 129. We
conduct our review de novo, giving substantial deference to the
military judge’s findings of fact unless they are clearly
erroneous. Id. at 127.
B. APPLICATION OF THE PROCEDURAL FRAMEWORK
The length of delay constitutes a “triggering mechanism”
under Article 10. Cossio, 64 M.J. at 257 (holding that a 117-
day period of pretrial confinement triggered the full Article 10
inquiry) (citation and quotation marks omitted). Under Cossio,
the 145-day period Appellant spent in pretrial confinement is
sufficient to trigger an Article 10 inquiry.
When ruling on Appellant’s Article 10 motion in this case,
the military judge noted that within the 145-day period, thirty-
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nine days were a result of defense-requested delays, leaving 106
days attributable to the Government. Within the 106-day period
attributable to the Government, the military judge limited his
conclusion regarding unreasonable delay under Article 10 to the
thirty-seven day period between April 8, 2006, and May 14, 2006.
At trial, the prosecution asserted that the thirty-seven
day period did not constitute unreasonable delay in light of:
(1) the difficulties encountered by the military police in
coordinating with the civilian detective, and (2) the heavy
workload of trial counsel. The military judge held that the
Government’s reasons for the delay were inadequate. The
military judge concluded that no meaningful investigation
occurred during the thirty-seven day period. The military judge
noted, however, that some police activity occurred during this
period, including “a furtive attempt to question a represented
accused; and fitful, initially misguided, attempts to pass
existing evidence between military and civilian authorities.”
The military judge rejected the Government’s argument with
regard to trial counsel’s caseload, concluding that the
Government’s generalized claims of inadequate personnel did not
constitute a legitimate reason for the delay.
The Court of Criminal Appeals held that the Government’s
justifications for the delay were sufficient. Thompson, 2006
CCA LEXIS 479, at *14-*16. In reaching this conclusion, the
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Court found that much of the delay during the thirty-seven day
period was a result of confusion as to whether civilian or
military authorities would prosecute the off-post offenses. Id.
at *14. The Court also noted other factors affecting the
prosecution, including testimony about the simultaneous
responsibilities of the trial counsel for other cases and the
understaffing of the office. Id. at *16.
In Mizgala, we emphasized the need to look “at the
proceeding as a whole.” 61 M.J. at 129. In so doing, we
treated the procedural framework as an integrated process,
rather than as a set of discrete factors. We emphasized that
“constant motion is not the standard so long as the processing
reflects reasonable diligence under all the circumstances.” Id.In taking that approach, we noted:
The processing of this case is not stellar.
We share the military judge’s concern with
several periods during which the Government seems
to have been in a waiting posture . . .
[including] waiting for a release of jurisdiction
for an offense that occurred in the civilian
community [and] . . . periods evidencing delay in
seeking evidence of the off-post offense . . . .
Id.In viewing the procedural framework as a whole, we observe
that the present case, like Mizgala, reflects processing by the
Government that was not stellar, particularly in terms of the
delays in contacting and coordinating with civilian officials.
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As a general matter, factors such as staffing issues,
responsibilities for other cases, and coordination with civilian
officials reflect the realities of military criminal practice
that typically can be addressed by adequate attention and
supervision, consistent with the Government’s Article 10
responsibilities. As in Mizgala, however, we do not consider
the thirty-seven day period in isolation, but also consider the
“proceeding as a whole,” including the general movement forward
during the full range of the pretrial period in this case, as
well as the fact that some Government activity took place during
the thirty-seven day period. We also take into account the fact
that Appellant did not make a speedy trial request during the
entire pretrial day period addressed by the military judge. She
delayed making a request until 141 days after she was placed in
pretrial confinement. See United States v. Birge, 52 M.J. 209,
212 (C.A.A.F. 1999).
In considering the matter of prejudice, we note that
Appellant has not alleged either impairment of her defense or
particularized anxiety or concern caused by the delay. See
Mizgala, 61 M.J. at 129. With respect to prejudice from the
conditions of her incarceration, we note that although the
record establishes negative aspects of her confinement
conditions, a number of considerations weigh against concluding
that the conditions were “oppressive” for purposes of prejudice
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under Article 10. See id. First, Appellant did not raise any
kind of formal or informal complaint about her confinement
conditions or otherwise request a change in conditions during
the period at issue, and she has not alleged that she was
precluded from doing so. Moreover, after the Army Court of
Criminal Appeals reinstated the charges, Appellant entered into
a pretrial agreement that expressly waived her ability to assert
a claim for relief under Article 13 for illegal pretrial
confinement conditions. Although her waiver of any Article 13
claim did not waive her Article 10 claim for speedy trial
relief, we may consider that circumstance as a relevant factor
bearing upon the question of prejudice for oppressive
confinement, particularly in a case where she raised no prior
complaints as to her confinement conditions.
We balance the foregoing considerations concerning length
of delay, reasons for delay, absence of a speedy trial request,
and potential prejudice in the context of the proceedings as a
whole. We conclude that the Court of Criminal Appeals did not
err, under the specific circumstances of this case, in rejecting
Appellant’s claim that the processing of this case violated
Article 10 in view of the limited period of time at issue --
thirty-seven days; a record that does not establish Government
indifference or substantial inactivity over the full course of
the pretrial proceeding; and Appellant’s failure to demonstrate
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United States v. Thompson, No. 09-0145/AR
prejudice in terms of oppressive confinement, as reflected in
the absence of pretrial complaints about confinement conditions
and Appellant’s subsequent entry into a pretrial agreement
waiving any Article 13 claim for illegal pretrial confinement
conditions.
III. DECISION
The decision of the United States Army Court of Criminal
Appeals is affirmed.
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STUCKY, Judge (concurring in the result):
I concur in the result, but write separately to express my
conclusion that, under these facts, the delay was not
“presumptively prejudicial” and, therefore, did not trigger
further inquiry under Barker v. Wingo, 407 U.S. 514, 530-31
(1972).
This Court has “consistently noted that Article 10 creates
a more exacting speedy trial demand than does the Sixth
Amendment,” United States v. Mizgala, 61 M.J. 122, 124
(C.A.A.F. 2005), without ever explaining the basis for this
conclusion. In our earliest decision on this issue, we stated
that the congressional hearings on the Uniform Code of Military
Justice (UCMJ) “clearly indicate that Congress did not intend
the military practice [concerning speedy trial under Article 10,
UCMJ, 10 U.S.C. § 810 (2000)] to be different from the regular
Federal criminal court procedure.” United States v. Hounshell,
7 C.M.A. 3, 7, 21 C.M.R. 129, 133 (1956) (applying Sixth
Amendment jurisprudence). However, in United States v. Burton,
we “assume[d] for present purposes that the requirements of
Article 10 are more rigorous,” 21 C.M.A. 112, 117, 44 C.M.R.
166, 171 (1971), and adopted a presumption that Article 10,
UCMJ, was violated by any pretrial confinement that exceeded
three months. Id. at 118, 44 C.M.R. at 172. Since then, this
Court has continued to state that “Article 10 as construed by
United States v. Thompson, No. 09-0145/AR
this Court demands more expeditious military trials than does
the Constitution.” United States v. Marshall, 22 C.M.A. 431,
434, 47 C.M.R. 409, 412 (1973); accord Mizgala, 61 M.J. at 124.
At the time the UCMJ was enacted, it was unclear whether
the Bill of Rights applied to courts-martial at all. See Reid
v. Covert, 354 U.S. 1, 37 (1957) (dictum); compare Gordon D.
Henderson, Courts-Martial and the Constitution: The Original
Understanding, Bicentennial Issue Mil. L. Rev. 141 (1975), with
Frederick Bernays Wiener, Courts-Martial and the Bill of Rights:
The Original Practice, Bicentennial Issue Mil. L. Rev. 171
(1975). That may explain why the drafters explicitly provided
similar, though often superior, rights in the UCMJ. See Article
27, UCMJ, 10 U.S.C. § 827 (2000) (right to counsel); Article 31,
UCMJ, 10 U.S.C. § 831 (2000) (right against self-incrimination);
Article 44, UCMJ, 10 U.S.C. § 844 (2000) (double jeopardy);
Article 55, UCMJ, 10 U.S.C. § 855 (2000) (cruel and unusual
punishment). Similarly, Article 10, UCMJ, provides an accused
the right to a speedy trial guaranteed to civilians by the Sixth
Amendment. While I am not convinced that Article 10, UCMJ, does
embody a stricter standard than the Sixth Amendment, that
question need not be answered to decide this case. Under either
the Sixth Amendment standard or one imposing some sort of
heightened scrutiny, the delay in this case was insufficient to
trigger an inquiry under Barker.
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The majority states that it analyzes Article 10, UCMJ,
violations using the procedural framework established by the
Supreme Court in Barker for reviewing Sixth Amendment speedy
trial claims, but then asserts that “‘Sixth Amendment speedy
trial standards cannot dictate whether there has been an Article
10 violation.’” United States v. Thompson, __ M.J. __ (10)
(quoting Mizgala, 61 M.J. at 124). By doing so, in the context
of tacitly ignoring the fundamental initial steps of the Barker
process, the majority fails to set out what, if anything, the
elevated Article 10, UCMJ, standard amounts to.
To trigger a Barker inquiry, the delay must be
“presumptively prejudicial.” 407 U.S. at 530. Whether a delay
is “presumptively prejudicial” “is necessarily dependent upon
the peculiar circumstances of the case. To take but one
example, the delay that can be tolerated for an ordinary street
crime is considerably less than for a serious, complex
conspiracy charge.” Id. at 530-31. Instead of considering the
seriousness and complexity of Appellant’s case, and the
substantial effect of heavy operational demands on personnel,
the majority finds the 145-day pretrial confinement period
sufficient to trigger a speedy trial inquiry by referencing
another case in which the Court held that a 117-day period of
pretrial confinement triggered the Article 10, UCMJ, inquiry.
__ M.J. __ (11) (citing United States v. Cossio, 64 M.J. 254,
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257 (C.A.A.F. 2007)). In Cossio, without examining the
seriousness or complexity of the charges, the Court concluded
that a Barker inquiry was triggered by the 117-day delay where
the accused had moved for a speedy trial. Cossio, 64 M.J. at
257.
Of the 145 days Appellant spent in pretrial confinement, 39
days were as a result of defense-requested delays. Considering
the complexity and seriousness of the charges -- theft of a bank
card and other items and misuse of the bank card in the civilian
community that involved a joint investigation with civilian
authorities -- and the fact that operational demands
necessitated the appointment of four successive trial counsel, I
conclude that the 106 days attributable to the Government that
Appellant spent in pretrial confinement were not “presumptively
prejudicial” and, therefore, did not trigger the need for a
Barker inquiry.
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