United States v. Wilder

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Carlton WILDER Jr., Lance Corporal
United States Marine Corps, Appellant
No. 15-0087
Crim. App. No. 201400118
Argued October 6, 2015—Decided March 7, 2016
Military Judges: C. M. Greer, Nicole K. Hudspeth,
and D. M. McConnell
For Appellant: Captain Bree A. Ermentrout, JAGC, USN
(argued).
For Appellee: Lieutenant James M. Belforti, JAGC, USN
(argued); Colonel Mark k. Jamison, USMC, Captain Mat-
thew M. Harris, USMC, and Brian K. Keller, Esq. (on
brief).
_______________
Judge RYAN delivered the opinion of the Court, in
which Chief Judge ERDMANN, Judges STUCKY and
OHLSON, and Judge DIAZ, joined. 1
Judge RYAN delivered the opinion of the Court.
A military judge sitting as a general court-martial con-
victed Appellant, consistent with his pleas, of one specifica-
tion of attempted sexual assault of two unknown children,
one specification of distributing child pornography, one spec-
ification of possessing child pornography, and one specifica-
tion of distributing a lewd photo (a picture of his penis) to a
minor, violations of Articles 80 and 134, UCMJ, 10 U.S.C. §§
880, 934 (2012). Appellant was sentenced to thirteen years
and four months of confinement, forfeiture of all pay and al-
1 Judge Albert Diaz, of the United States Court of Appeals for
the Fourth Circuit, sat by designation, pursuant to Article 142(f),
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 942(f)
(2012).
United States v. Wilder, Jr., No. 15-0087/MC
Opinion of the Court
lowances, reduction to pay grade E-1, and a dishonorable
discharge. Pursuant to a pretrial agreement, the convening
authority agreed to suspend confinement in excess of eighty-
four months. The United States Navy-Marine Corps Court of
Criminal Appeals (NMCCA) affirmed the findings and the
sentence. United States v. Wilder, No. 201400118, 2014 CCA
LEXIS 571, at *15, 2014 WL 3939963, at *6 (N-M. Ct. Crim.
App. Aug. 12, 2014) (unpublished).
We granted review of the following issue:
Whether the promulgation of R.C.M. 707 abro-
gated the “substantial information” rule origi-
nated in United States v. Johnson, 23 C.M.A.
91, 48 C.M.R. 599 (1974). 2
We hold that when assessing a speedy trial violation al-
leged under Rule for Courts-Martial (R.C.M.) 707, the
speedy trial clock commences only when one of the events
listed in R.C.M. 707(a) — in this case preferral of the Addi-
tional Charges — takes place.
I. FACTS
On November 8, 2012, Appellant, who was stationed in
Camp Lejeune, North Carolina, posted an advertisement on
Craigslist seeking a “dirty taboo couple.” A Naval Criminal
Investigative Service (NCIS) undercover agent responded,
posing as a mother of four-year-old and seven-year-old
daughters. Appellant offered to pay for images and clothing
of the two daughters and to engage in sexual acts with them.
The agent agreed and arranged a meeting between Appel-
lant and the agent’s “husband,” who was also an undercover
agent. On November 13, 2012, Appellant met with the
agent, whom Appellant believed was the father of the
daughters he had arranged to have sex with, in a parking lot
in order to exchange money for the images, clothing, and
sex. The agent and Appellant then drove to the “husband’s”
fictional residence so that Appellant could engage in sexual
activity with the “daughters.” Upon arrival, Appellant was
arrested.
Appellant was placed into pretrial confinement on No-
vember 14, 2012, Wilder, 2014 CCA LEXIS 571, at *3–4,
2 Johnson held that delay for purposes of Article 10, UCMJ, 10
U.S.C. § 810, should be measured from the time the government
possessed “substantial information” relating to the offense. 23
C.M.A. at 93, 48 C.M.R. at 601.
2
United States v. Wilder, Jr., No. 15-0087/MC
Opinion of the Court
2014 WL 3939963, at *2, and the Government preferred
charges, inter alia, of attempted sexual acts with a child and
distribution of child pornography (original charges) on De-
cember 4, 2012. Appellant was arraigned on the original
charges on April 23, 2013. 3
During his post-arrest interrogation, Appellant admitted
to various other criminal activities, including possession of
child pornography and communicating with fifteen-year-old
R. R., whom he met at an ROTC briefing, and sending her a
picture of his penis. NCIS agents continued to investigate
these activities.
On April 16, 2013, the Government preferred Additional
Charges I and II, which consisted of one charge of indecent
exposure based on Appellant’s communications with R. R.,
charged as a violation of Article 120, UCMJ, 4 and one charge
of possession of child pornography. On July 17, 2013, the
Government preferred Additional Charge III for unlawful
distribution of harmful material to a minor. Appellant was
arraigned on Additional Charges I‒III on August 5, 2013.
One hundred and eleven days elapsed between the preferral
of Additional Charges I and II and arraignment, and nine-
teen days elapsed between preferral of the Additional
Charge III and arraignment. Appellant remained in pretrial
confinement based on the original charges during this time. 5
Appellant filed a motion to dismiss all of the Additional
Charges based on speedy trial violations of R.C.M. 707, Arti-
3 Although 160 days passed between preferral and arraign-
ment, Appellant did not allege a speedy trial violation based on
the original charges because he had requested continuances of the
Article 32, UCMJ, 10 U.S.C. § 832 (2012), hearing in January and
February 2013 and agreed to the exclusion of that time for speedy
trial purposes. See Request for Continuance in the Article 32,
UCMJ, Pretrial Investigation of Lance Corporal Carlton Wilder,
United States v. Wilder (Jan. 13, 2013); see also R.C.M. 707(c).
4 Additional Charge I and its single specification were dis-
missed without prejudice pursuant to the terms of the pretrial
agreement (PTA).
5 The NMCCA concluded that Appellant was placed in con-
finement on November 14, 2012, as a result of the original charges
and that he was arraigned within 120 days of his restraint on
those charges after accounting for the periods of excludable delay.
Wilder, 2014 CCA LEXIS 571, at *3–4, *8–10, 2014 WL 3939963,
at *2–4. Appellant has not challenged this holding on appeal, so it
is the law of the case and not before us. See United States v.
Savala, 70 M.J. 70, 76 (C.A.A.F. 2011).
3
United States v. Wilder, Jr., No. 15-0087/MC
Opinion of the Court
cle 10, UCMJ, and the Sixth Amendment, but later with-
drew the motion pursuant to a PTA and pleaded guilty.
II. NMCCA DECISION
On appeal, Appellant claimed that the provision in the
PTA requiring him to withdraw his motion was impermissi-
ble, and he renewed his argument that his speedy trial
rights under R.C.M. 707, Article 10, UCMJ, and the Sixth
Amendment had been violated. The NMCCA agreed that the
provision was impermissible and struck it from the agree-
ment. Wilder, 2014 CCA LEXIS 571, at *7–8, 2014 WL
3939963, at *3.
With respect to Appellant’s speedy trial claims, the
NMCCA found them to be without merit. 2014 CCA LEXIS
571, at *9–15, 2014 WL 3939963, at *3–5. Appellant argued
that the speedy trial clock on the Additional Charges, for
purposes of his R.C.M. 707 claim, began to run on November
14, 2012, because the Government possessed “substantial
information” about his communications with R. R. on that
date. 2014 CCA LEXIS 571, at *8–9, 2014 WL 3939963, at
*3.
The NMCCA disagreed, noting that the “substantial in-
formation” rule from Johnson, 23 C.M.A. 91, 48 C.M.R. 599,
had been implicitly abrogated by the subsequent promulga-
tion of R.C.M. 707 and this Court’s decision in United States
v. Kossman, 38 M.J. 258 (C.M.A. 1993). Wilder, 2014 CCA
LEXIS 571, at *9, 2014 WL 3939963, at *4. Because R.C.M.
707 mandates that the speedy trial clock began to run on the
date of preferral of the Additional Charges, and because less
than 120 days elapsed between preferral and arraignment
on the Additional Charges, his rights under R.C.M. 707 were
not violated. The NMCCA also reviewed Appellant’s claims
of speedy trial violations under Article 10, UCMJ, and the
Sixth Amendment but held that Article 10, UCMJ, did not
apply to the Additional Charges and that Appellant did not
suffer any prejudice under the Sixth Amendment. Wilder,
2014 CCA LEXIS 571, at *10–15, 2014 WL 3939963, at *4–
5.
III. DISCUSSION
“The conclusion whether an accused received a speedy
trial is a legal question that is reviewed de novo....” United
States v. Leahr, 73 M.J. 364, 367 (C.A.A.F. 2014) (alteration
in original) (internal quotation marks omitted) (quoting
4
United States v. Wilder, Jr., No. 15-0087/MC
Opinion of the Court
United States v. Cooper, 58 M.J. 54, 58 (C.A.A.F. 2003)).
R.C.M. 707, Article 10, UCMJ, and the Sixth Amendment
provide a cohesive and sometimes overlapping framework
for the protection of an accused’s speedy trial rights. See
United States v. Tippit, 65 M.J. 69, 72–73 (C.A.A.F. 2007).
R.C.M. 707(a) mandates that “[t]he accused shall be brought
to trial within 120 days after the earlier of: (1) Preferral of
charges; (2) The imposition of restraint under R.C.M.
304(a)(2)–(4); or (3) Entry on active duty under R.C.M. 204.”
Article 10, UCMJ, requires “reasonable diligence in bringing
charges to trial” when an accused is placed “in arrest or con-
finement” prior to trial. United States v. Mizgala, 61 M.J.
122, 127 (C.A.A.F. 2005) (citation omitted) (internal quota-
tion marks omitted). An analysis under the Sixth Amend-
ment focuses on the date of either preferral or the imposition
of restraint or confinement, United States v. Vogan, 35 M.J.
32, 33 (C.M.A. 1992), and analyzes an alleged violation
based on the factors set forth in Barker v. Wingo, 407 U.S.
514, 530 (1972). United States v. Danylo, 73 M.J. 183, 186
(C.A.A.F. 2014).
Arraignment “stops” the speedy trial clock for purposes
of R.C.M. 707, see Leahr, 73 M.J. at 367, and trial stops the
speedy trial clock for Article 10, UCMJ, see United States v.
Cooper, 58 M.J. 54, 60 (C.A.A.F. 2003), and the Sixth
Amendment, see Danylo, 73 M.J. at 189. 6 R.C.M. 707(b)(2)
provides that “[w]hen charges are preferred at different
times, accountability for each charge shall be determined
from the appropriate date under subsection (a) of this rule
for that charge.” If an appellant is arraigned within 120
days after the earlier of, inter alia, the preferral of, or re-
straint based upon, a particular charge, then R.C.M. 707 is
not violated. See, e.g., Leahr, 73 M.J. at 367.
These speedy trial protections and inquiries, though
overlapping in some respects, are distinct. “The fact that a
prosecution meets the 120-day rule of R.C.M. 707 does not
directly ‘or indirectly’ demonstrate that the Government
moved to trial with reasonable diligence as required by Arti-
cle 10.” Mizgala, 61 M.J. at 128. Similarly, the government
might move with all reasonable diligence for purposes of Ar-
ticle 10, UCMJ, but nonetheless violate the bright-line 120-
day rule of R.C.M. 707. See Kossman, 38 M.J. at 261.
6 The Supreme Court recently granted certiorari in a case ad-
dressing whether the Sixth Amendment’s speedy trial protections
extend through the sentencing phase. See Betterman v. Montana,
136 S. Ct. 582 (2015).
5
United States v. Wilder, Jr., No. 15-0087/MC
Opinion of the Court
The narrow issue for decision in this case is whether, for
purposes of a speedy trial violation alleged under R.C.M.
707, the time is calculated by reference to the specific trig-
gers listed in R.C.M. 707(a) or by reference to some other
standard such as the “substantial information” rule. Based
on the plain language of R.C.M. 707, we do not hesitate to
conclude that when analyzing a speedy trial violation under
R.C.M. 707, it is the earliest of the actions listed in R.C.M.
707(a) with respect to a particular charge that starts the
speedy trial clock for that charge. R.C.M. 707, promulgated
in 1984, was a new and different layer of protection against
speedy trial violations, see Kossman, 38 M.J. at 260, and for
violations alleged under its rubric, its plain language con-
trols. See United States v. Ruffin, 48 M.J. 211, 213 (C.A.A.F.
1998); United States v. Thompson, 46 M.J. 472, 475
(C.A.A.F. 1997).
There was no R.C.M. 707 violation in this case. With re-
spect to the Additional Charges, because Appellant was not
confined based on them, see supra note 5, the trigger dates
from which to measure an alleged violation of R.C.M. 707 for
the Additional Charges in this case are the dates of
preferral. At most, 111 days passed between preferral and
arraignment on Additional Charges I and II, and nineteen
days between preferral and arraignment on Additional
Charge III.
IV. JUDGMENT
The decision of the United States Navy-Marine Corps
Court of Criminal Appeals is affirmed.
6