United States v. Kossman , 1993 CMA LEXIS 133 ( 1993 )

Opinion of the Court

COX, Judge:

In this case, we are called upon to revisit the speedy-trial rights of accused service-members who are confined pending court-martial. Here the military judge granted in limine a defense motion to dismiss certain of the charges and specifications on the grounds of denial of speedy trial. The Government appealed to the Court of Military Review pursuant to Article 62, Uniform Code of Military Justice, 10 USC § 862 (1983). A majority of that court agreed with the military judge and affirmed.

The Judge Advocate General of the Navy then certified this question to us:

WHETHER THE NAVY-MARINE CORPS COURT OF MILITARY REVIEW CORRECTLY DETERMINED THAT THE MILITARY JUDGE WAS BOUND TO APPLY THIS COURT’S HOLDING IN UNITED STATES V. BURTON, 21 USCMA 112, 44 CMR 166 (1971), IN RESOLVING APPELLEE’S SPEEDY TRIAL MOTION INSTEAD OF THE PRESIDENT’S COMPREHENSIVE SPEEDY TRIAL SCHEME CONTAINED IN RCM 707.

See Art. 67(a)(2), UCMJ, 10 USC § 867(a)(2)(1989).

The Sixth Amendment to the Constitution declares, inter alia:

In all criminal prosecutions, the accused shall enjoy the right to a speedy ... trial.

In the instant case, as to the affected charges and specifications, the military judge found that only 8 of the 110 days of the accused’s pretrial confinement were accountable to the defense; the balance were chargeable to the Government. The judge concluded that this pretrial interval did not violate the accused’s Sixth Amendment right to a speedy trial. See Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Neither party disputes the correctness of the judge’s computations or his conclusions of law regarding the Sixth Amendment.

For servicemembers, however, it has long been assumed that Article 10, UCMJ, 10 USC § 810, imposes a more stringent speedy-trial standard than that of the Sixth Amendment. United States v. Burton, 21 USCMA 112, 117, 44 CMR 166, 171 (1971). Article 10 provides, in relevant part:

When any person subject to this chapter is placed in arrest or confinement prior to trial, immediate steps shall be taken to inform him of the specific wrong of which he is accused and to try him or to dismiss the charges and release him.

(Emphasis added.)

Pointedly, however, the drafters of Article 10 made “no provision as to hours or days” in which a case must be prosecuted because “there are perfectly reasonable exigencies that arise in individual cases which just do not fit under a set time limit.” Hearings on H.R. 2498 Before a Subcomm. of the House Armed Services Comm., 81st Cong., 1st Sess. 906 (1949) (testimony of Mr. Larkin, Assistant General Counsel, O.S.D.), reprinted in Index and Legislative History, Uniform Code of Military Justice (1950).

In United States v. Burton, 21 USCMA at 118, 44 CMR at 172, we

adopt[ed] the suggestion of appellate defense counsel that in the absence of defense requests for continuance, a presumption of an Article 10 violation will exist when pretrial confinement exceeds three months. In such cases, this presumption will place a heavy burden on the Government to show diligence, and in the absence of such a showing the charges should be dismissed.

(Footnote omitted.) Thus the “Burton presumption” was conceived as a mechanism to enforce Article 10. Several years later, we modified the Burton period from 3 months to 90 days. United States v. Driver, 23 USCMA 243, 49 CMR 376 (1974).

This Burton-Driver 90-day presumption was the basis of the military judge’s ruling that a speedy-trial violation occurred herein and upon which he based his dismissal of the affected charges and specifications with prejudice. The judge’s application of this presumption was the basis of the challenge by the Government in its Article 62 appeal; and the presumption’s continued vitality was the ground the Court of Military Review majority used in sustaining the judge’s ruling.

At the time of Burton, the Manual for Courts-Martial contained no mechanistic speedy-trial template, but only general guidance as to matters to be taken into consideration by the military judge. This is hardly surprising, given the drafters’ unambiguous intent, Hearings on H.R. 2498, supra. The Manual factors included

whether the accused has earlier demanded trial and, if so, when; whether any portion of the delay was at the instance of the defense; how much time was reasonably required for pretrial processing, investigation, and preparation; whether the delay or any part thereof was arbitrary or oppressive; and whether the accused was in pretrial restraint and, if so, the nature of that restraint.

Para. 215e, Manual for Courts-Martial, United States, 1969 (Revised edition). Essentially, these factors correspond to those identified in Barker v. Wingo, 407 U.S. at 523, 92 S.Ct. 2188, for the Sixth Amendment.

Despite its lofty purpose, the Burton presumption was admittedly something of a crude stopgap; and it occasionally created difficult results.¹ Because a Burton presumption was rebuttable, however, we plainly acknowledged that unique circumstances could arise which would justify or excuse longer delays in bringing an accused to trial.

Since Burton, several key changes have been instituted in the pretrial confinement area. First, a “military magistrate” system has been implemented throughout the armed forces. RCM 305(i)(2), Manual for Courts-Martial, United States, 1984. The result is that, pending courts-martial, military magistrates and judges now hold keys to confinement facilities and brigs, not just commanders. RCM 305(i)(5) and (j)(l). Second, all pretrial confinement served is now credited against any sentence to confinement ultimately adjudged, and additional credit is given for pretrial confinement subsequently determined to have been unlawful. United States v. Allen, 17 MJ 126 (CMA 1984); RCM 305(j)(2) and (k).

In addition, in 1984, the President, through RCM 707 promulgated extensive procedural rules relating to the right to a speedy trial. The original RCM 707, however, closely approximated the Burton-Driver presumption as pertains to pretrial confinees. It provided:

When the accused is in pretrial arrest or confinement ..., immediate steps shall be taken to bring the accused to trial. No accused shall be held in pretrial arrest or confinement in excess of 90 days for the same or related charges. Except for any periods under subsection (c)(7) [delay arising because of a joint trial] of this rule, the periods described in subsection (e) [enumerating specific circumstances justifying relief of the Government from accountability for delay] of this rule shall be excluded for the purpose of computing when 90 days has run. The military judge may, upon a showing of extraordinary circumstances, extend the period by 10 days.

Like Burton, the original RCM 707(e) provided for dismissal as the exclusive remedy for an RCM 707 violation.

In the only 90-plus-days cases we have found in which we addressed this provision, we concluded that the particular periods of time that satisfied the RCM 707 exclusions also overcame the Burton presumption. United States v. Carpenter, 37 MJ 291, 299 (CMA 1993); United States v. King, 30 MJ 59, 66 and n.7 (CMA 1990). Accordingly, we had no occasion to decide whether RCM 707 and Burton were in any way inconsistent or incompatible.

Effective July 6, 1991, the President’s most recent amendments to RCM 707 were substantial. Most particularly, the 90-day rule for pretrial confinees was extended to a 120-day rule, and the military judge was given discretion to dismiss charges with or without prejudice to the Government for violations of RCM 707. RCM 707(a) and (d). This version of RCM 707 was in effect at the time of appellant’s trial—hence the contention over whether RCM 707 or Burton predominates with respect to the accused’s 102-day pretrial confinement.

In Article 36(a), UCMJ, 10 USC § 836(a), Congress delegated to the President the authority to prescribe “[p]retrial, trial, and post-trial procedures” for courts-martial. Plainly, RCM 707 is an exercise of that delegation and has the force and effect of law. See United States v. Smith, 13 USCMA 105, 119, 32 CMR 105, 119 (1962). Any violation of RCM 707 is subject to the remedies provided therein.

The President, however, cannot overrule or diminish an Act of Congress via the promulgation of rules of procedure. Likewise, the President cannot overrule or diminish our interpretation of a statute.² Thus, in the area of subconstitutional speedy trial, Article 10 reigns preeminent over anything propounded by the President. If the requirements of Article 10 are more demanding than a presidential rule, Article 10 prevails. Merely satisfying lesser presidential standards does not insulate the Government from the sanction of Article 10. The 102-day government delay in the instant case apparently satisfies RCM 707. The question remains, however, does it satisfy Article 10?

Before resolving that, we reiterate that the Burton presumption was court-made and declared in a procedural vacuum, without the benefit of presidential input. Just as we created it, we now reconsider it. Burton and Driver are hereby overruled. The landscape of speedy trial has changed dramatically since those cases, and the President has acted responsibly in an area in which he has clear authority. Our rough-and-ready rule of thumb (the Burton Rule) now merely aggravates an already complicated subject.

Nevertheless, it is claimed that, even if we overrule Burton, the accused should be entitled to the “benefit” of the Burton presumption because his case “arose” under it. We reject this contention. First, Burton was a tool for effectuating Article 10. The accused’s “right” is to have Article 10, not a “court-made” presumption, vindicated. Second, there can be no contention that the accused relied to his detriment on the Burton presumption. It can hardly be maintained that he conducted his affairs in such a manner that, should he wind up in pretrial confinement, he could be assured of remaining there no more than 90 days chargeable to the Government. Cf. Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) (new Constitutional rule applies retroactively to all cases state and federal which are pending on direct review even if rule is a “clear break” with the past).

Reasonable persons may well debate the wisdom of the Burton presumption in any event. Undoubtedly it had the effect of assuring that few accused would remain in pretrial confinement longer than 90 days attributable to the Government; but it also had a reverse effect. In practice, it virtually assured that no accused could ever prevail on an Article 10 motion if the pretrial confinement chargeable to the Government was less than 90 days. We happen to think that 3 months is a long time to languish in a brig awaiting an opportunity to confront one’s accusers, and we think Congress thought so, too. Four months in the brig is even longer. We see nothing in Article 10 that suggests that speedy-trial motions could not succeed where a period under 90—or 120—days is involved. At the same time, we recognize that there are many circumstances that justify even longer periods of delay. However, where it is established that the Government could readily have gone to trial much sooner than some arbitrarily selected time demarcation but negligently or spitefully chose not to, we think an Article 10 motion would lie.³

We do not apprehend that military judges will approach the Article 10 mandate to take immediate steps in a mean-spirited fashion. Undoubtedly, military-judges are far more sensitive than are we to the realities of military practice. Some cases are obviously more convoluted than others and necessarily take longer to process. In addition, the logistical challenges of a world-wide system that is constantly expanding, contracting, or moving can at times be daunting. Often operational necessities add a further layer of complexity unimagined by the civilian bar. Even ordinary judicial impediments, such as crowded dockets, unavailability of judges, and attorney caseloads, must be realistically balanced.

For want of a better verbal formula, the pre-Burton standard of “reasonable diligence” seems appropriate. In United States v. Tibbs, 15 USCMA 350, 353, 35 CMR 322, 325 (1965) (55-day delay from pre-charge confinement to trial not unreasonable), we said:

It suffices to note that the touch stone for measurement of compliance with the provisions of the Uniform Code is not constant motion, but reasonable diligence in bringing the charges to trial. Brief periods of inactivity in an otherwise active prosecution are not unreasonable or oppressive.

(Citations omitted.)

We are mindful, moreover, that a speedy trial is not always seen as being in the best interest of the defense. See Barker v. Wingo, 407 U.S. at 526, 92 S.Ct. at 2190. Stratagems such as demanding a speedy trial now, when the defense knows the Government cannot possibly proceed, only to seek a continuance later, when the Government is ready, may belie the genuineness of the initial request. “Like most rights, speedy trial can be waived.” United States v. King, 30 MJ at 66.

Inasmuch as the delay in this case has not been tested for compliance with Article 10, we remand it to the military judge for that initial determination. Whether Article 10 was violated is the question, not the given. Article 10 does not require instantaneous trials, but the mandate that the Government take immediate steps to try arrested or confined accused must ever be borne in mind. If our decision today vests military judges with a degree of discretion, so be it. Judges who can decide difficult questions such as whether a confession was voluntary, see United States v. Martinez, 38 MJ 82 (CMA 1993), can readily determine whether the Government has been foot-dragging on a given case, under the circumstances then and there prevailing.

The remedy for an Article 10 violation must remain dismissal with prejudice of the affected charges. If it is concluded that the circumstances of the delay are sufficiently excusable or unavoidable as to permit a reinstitution of the charges, there is no violation of Article 10 in the first place. Where the circumstances of delay are not excusable, on the other hand, it is no remedy to compound the delay by starting all over.

The certified question is answered in the negative.

The decision of the United States Navy-Marine Corps Court of Military Review is set aside. The record of trial is returned to the Judge Advocate General of the Navy for resubmission to the convening authority for further proceedings at trial.

Judges CRAWFORD and GIERKE concur.

1 . See United States v. Henderson, 1 MJ 421 (CMA 1976) (conviction of murder and conspiracy to murder set aside by operation of a United States v. Burton, 21 USCMA 112, 44 CMR 166 (1971), presumption upon 113 days’ pretrial confinement attributable to Government).

2 . In United. States v. Burton, 21 USCMA 112, 44 CMR 166 (1971), we were not purporting to interpret Article 10, but to enforce it.

3 . The Government should not rely exclusively on RCM 707, Manual for Courts-Martial, United States, 1984, as the “know-all, be-all” of speedy-trial issues; but RCM 707 does provide good guidance to both the Bench and Bar.