United States v. Reed , 1995 CAAF LEXIS 29 ( 1995 )

Opinion of the Court

CRAWFORD, Judge:

1. The military judge granted the accused’s motion to dismiss the rape charge because of denial of speedy trial under the Fifth Amendment Due Process Clause. The Government appealed this ruling under Article 62, Uniform Code of Military Justice, 10 USC § 862 (1983), to the Court of Military Review which reversed the judge’s ruling. This Court then granted the petition to review the decision of the Court of Military Review¹ on the following issue:

WHETHER THE NAVY-MARINE CORPS COURT OF MILITARY REVIEW ERRED IN REVERSING THE MILITARY JUDGE’S RULING THAT THE GOVERNMENT FAILED TO ACCORD APPELLANT DUE PROCESS OF LAW THROUGH ITS PRE-PRE-FERRAL DELAY IN BRINGING THE CASE TO TRIAL.

We hold that there was no violation of appellant’s right to speedy trial under the Fifth Amendment’s Due Process Clause.

FACTS

2. The rape charge in this case stems from a weekend party at a civilian hotel in November 1991 attended by a group of sailors who were assigned to various ships and undergoing apprenticeship training in Orlando, Florida. Seaman X alleges she was raped twice in a hotel room after she had passed out on a bed after overindulging in alcohol. She did not immediately report the incident but told her husband in January 1992 after watching a movie in which a girl was raped. Her husband reported this to a chaplain, who in turn reported it to the command. Unpub. op. at 1-2. X was referred to the Naval Investigative Service (NIS) in San Diego to make a report about the incident. X was not then sure of the identity of the rapist.

3. On March 13, 1992, Robin Flanders, the control agent for NIS in San Diego, requested information from Orlando pertaining to X’s allegations. On March 31, 1992, Agent Flanders obtained rosters from the various ships and units in order to attempt to identify the suspect and witnesses. On April 27, 1992, X identified the name “Kayno Reed” as a suspect as well as the names of other witnesses. As a result, NIS sent requests for further inquiries to six other locations including Mayport, Florida, to obtain appellant’s photograph and fingerprints. Following this inquiry, the agents had to contact two additional locations because the individuals were on ships that had moved. In May 1992, NIS learned that one of the witnesses, McElroy, was deployed to the Western Pacific and would not return to Honolulu until July 1992. NIS agents also learned that appellant had deployed from Mayport with his ship.

4. Appellant’s command first learned of the investigation when they docked in Malta in August 1992. Appellant’s command received a copy of the victim’s statement and a request from NIS for additional information, including photographs for a lineup. The ship left Malta, and its officers did not hear about the rape again until around December 1992 when they returned to the Caribbean. NIS completed its initial investigation on December 8, 1992, and sent a copy to appellant’s command.

5. On January 13, 1993, appellant’s commander requested a followup investigation. The followup involved reinterviewing McElroy who may have been one of the witnesses in the hotel room on the evening of the rape. McElroy was contacted on May 6, 1998, by telephone but was unable to provide additional information. On September 4, 1993, appellant was notified that his term of enlistment was being extended because of the investigation. He was not allowed to take any examinations for promotion after that date and was also placed on medical hold because of an injury to his knee.

6. On September 24, 1993, the charges and specifications were preferred against the accused, and he was informed of these on September 27, 1993. The charges were received by the summary court-martial convening authority on October 5, 1993; and on October 8, 1993, an investigation under Article 32, UCMJ, 10 USC § 832, was conducted. The Article 32 investigation was completed on October 21, 1993, and the investigating officer recommended trial by general court-martial. Appellant’s command forwarded the charges to the general court-martial convening authority on November 23, 1993, recommending a general court-martial. The charges were referred to trial on January 10, 1994.

DISCUSSION

7. No discussion of the issue in this case can begin without setting forth (A) the sources of speedy-trial rights in the military; (B) the due process two-prong test; and (C) the burden of proof.

A. Sources of Right to Speedy Trial

8. There are a number of sources of the right to a speedy trial in the military: (1) statute of limitations; (2) Due Process Clause of the Fifth Amendment; (3) Sixth Amendment speedy-trial guarantee; (4) Articles 10 and 33 of the Code, 10 USC §§ 810 and 833, respectively; (5) RCM 707, Manual for Courts-Martial, United States, 1984 (Change 5); and (6) case law.

9. The accused alleges a denial of speedy trial under the Due Process Clause of the Fifth Amendment because the Sixth Amendment speedy-trial protection does not apply to pre-accusation delays when there has been no restraint. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); United States v. Vogan, 35 MJ 32 (CMA 1992). Likewise, Article 10, Article 33, and RCM 707 are triggered either by pretrial restraint or preferral of charges. There is protection against erroneous restraint. When there is an arrest and detention, the Government must establish probable cause to believe that the suspect has committed an offense and the detention “is required by the circumstances.” RCM 304(c). See United States v. Rexroat, 38 MJ 292 (CMA 1993).

10. Absent restraint, the “primary guarantee,” United States v. Marion, 404 U.S. at 322, 92 S.Ct. at 464 ¶ 15, or “primary protection,” Perez v. Sullivan, 793 F.2d 249, 259 ¶ 27 (10th Cir.1986), against pre-accusation delay is the statute of limitations. As the Supreme Court noted in Toussie v. United States, 397 U.S. 112, 114-15, 90 S.Ct. 858, 860, 25 L.Ed.2d 156 ¶ 4 (1970):

The purpose of a statute of limitations is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature had decided to punish by criminal sanctions. Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past. Such a time limit may also have the salutary effect of encouraging law enforcement officials promptly to investigate suspected criminal activity____

While the military statute of limitations, Article 43, UCMJ, 10 USC § 843, provides protection against pre-accusation delay, it may not be sufficient by itself — thus appellant’s reliance upon the Due Process Clause of the Fifth Amendment.

B. Due Process Standard

11. As we explained in Vogan: “[T]he Fifth Amendment Due Process Clause may be applicable to protect an accused against egregious trial delays.” 35 MJ at 34 ¶ 8. There may be a due process violation when “incurred in wreckless disregard of circumstances, known to the prosecution, suggesting that there existed an appreciable risk that delay would impair the ability to mount an effective defense.” United States v. Lovasco, 431 U.S. 783, 795 n. 17, 97 S.Ct. 2044, 2051 n. 17, 52 L.Ed.2d 752 (1977); cf. United States v. Kossman, 38 MJ 258 (CMA 1993).

12. We agree with the Court of Military Review that the military judge misapplied Lovasco. There the Court held there was no violation of due process, 431 U.S. at 796, 97 S.Ct. at 2052 ¶ 17, even though the defense claimed the death of two material witnesses had occurred during the delay. Id. at 785, 97 S.Ct. at 2046 ¶4. The Court conceded that pre-accusation delay could result in a violation of due process. Id. at 789, 97 S.Ct. at 2048 ¶ 9. The Court in Lovasco cited United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), for the proposition that “proof of prejudice is generally a necessary but not sufficient element of a due process claim, and that the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused.” 431 U.S. at 790, 97 S.Ct. at 2049 ¶ 10. Thus, prejudice is only one prong of a due process claim. There must be an examination of the reason for the delay. However, the prosecution is not required “to file charges as soon as probable cause exists.” 431 U.S. at 791, 97 S.Ct. at 2049 ¶ 12.

C. Burden of Proof

13. Most of the federal courts, relying on Lovasco and Manon, have held that the defendant has the burden of proof to show an egregious or intentional tactical delay and actual prejudice.²

14. Speculation by the defendant is not sufficient. See, e.g., United States v. Wallace, 848 F.2d 1464 (9th Cir.1988); United States v. Birney, 686 F.2d 102, 105 ¶ 12 (2d Cir.1982). The defense may establish prejudice by showing: (1) the actual loss of a witness, as well as “the substance of their testimony and the efforts made to locate them,” United States v. Tousant, 619 F.2d 810, 814 ¶ 19 (9th Cir.1980); or (2) the loss of physical evidence, see, e.g., United States v. Dennis, 625 F.2d 782, 794 ¶ 18 (8th Cir.1980); United States v. Tousant, 619 F.2d at 814 ¶ 19; United States v. Comosona, 614 F.2d 695, 697 ¶ 7 (10th Cir.1980) (“[C]onclusory allegations of prejudice, otherwise unsupported in the record, do not constitute valid grounds for dismissal”).

15. While this case was not a model of celerity, appellant has not met his burden of showing egregious or intentional tactical delay and actual prejudice. Here, the difficulties were in coordinating the location of witnesses throughout the world. Even when the first investigative report was completed, appellant’s command found it to be skeletal and requested additional information. Until September 1993, while the investigation was ongoing, appellant was not under charges or any sort of restraint. Additionally, the prejudice to appellant was minimal and did not involve lost witnesses or physical evidence.³ He was placed on legal hold 23 days before being informed of the charges and was, as is standard, not permitted to take examinations for further promotions until the charges were resolved.

16. Appellant has not met his burden of proof to show a violation of both prongs of the due process test. Thus, we hold there was no violation of due process.

The decision of the United States Navy-Marine Corps Court of Military Review is affirmed.

Judges COX and GIERKE, concur.

1 . See 41 MJ 213, 229 n. * (1994).

2 . United States v. Byrd, 31 F.3d 1329, 1339 ¶23 (5th Cir. 1994) ("a defendant must demonstrate that the prosecutor intentionally delayed the indictment to gain a tactical advantage and that the defendant incurred actual prejudice”); Perez v. Sullivan, 793 F.2d 249, 259 ¶27 (10th Cir. 1986) ("the delay was purposefully caused by the government to gain a tactical advantage or to harass”); United States v. Amuny, 767 F.2d 1113, 1119 ¶ 18 (5th Cir.1985) (the defendant must "establish that (1) the prosecutor intentionally delayed indicting him to gain a tactical advantage and (2) the defendant incurred actual prejudice as a result of the delay"); United States v. Swacker, 628 F.2d 1250, 1254 ¶ 18 (9th Cir. 1980); United States v. Comosona, 614 F.2d 695, 696 ¶3 (10th Cir.1980). Cf. Howell v. Barker, 904 F.2d 889 (4th Cir.1990) (apparently applying a different standard over-vigorous dissent — court found violation because of assumed prejudice and delay was for "convenience”).

3 . In its opinion the court below observed:

[T]he military judge stated that the mere length of delay created an inference that memories will fade.... Conspicuously absent from the record is any indication from the defense affirmatively asserting either (a) that the accused does not know the identity of this man [the person who went to the hotel room with appellant on the night in question] with whom he spent some time, or (b) that the man will provide information helpful to the accused's defense. This failure to present some evidence or proffer regarding the knowledge of the accused concerning the identity of this man, coupled with the failure to present anything to indicate how this information would contribute to the defense of the accused, calls into question the sincerity of the accused's claims and the validity of the military judge's findings—

Unpub. op. at 10.