U.S. v. Underwood, 50 M.J. 271

Military Justice Personnel: Convening Authority: Referral

1. withdrawal of charges, de facto dismissal, preferral anew, a new Article 32 investigation, and referral to another court-martial did not clearly thwart military judge’s ruling denying government motion for a continuance where: (1) new trial date was four months after that requested in government’s motion for continuance; (2) reinvestigation and re-referral were not matters addressed by the military judge’s ruling denying the continuance; and (3) military judge stated that his ruling did not preclude the new preferral and burdensome procedural course of action selected by the convening authority to bring the charges to trial again
2. withdrawal of charges, de facto dismissal, preferral anew, a new Article 32 investigation, and referral to another court-martial after military judge’s ruling denying government motion for a continuance did not constitute illegal interference with the exercise of the judicial function because the convening authority’s actions did not violate any procedural rules of the Manual for Courts-Martial and thus did not constitute “illegal” interference with the judicial function
3. withdrawal and re-referral of charges was proper under RCM 604(b) when done to further the legitimate command objective of accommodating a victim’s schedule and avoid the issuance of a subpoena
4. appellant was not substantially prejudiced by withdrawal and re-referral of charges where: (1) re-referral was to the same level of court-martial; (2) trial was before the same military judge as first trial; (3) appellant lost no benefits from a favorable trial ruling as denial of a continuance created no legally cognizable right to a trial without a prosecution witness; (4) appellant was not in pretrial confinement; and (5) appellant made no pretrial motion at second court-martial alleging prejudicial trial delay

Core Criminal Law Subjects: Motions, Generally: Merits

1. denial of a government request for delay to accommodate schedule of prosecution witness created no legally cognizable right to a trial without the prosecution witness; nor can the speculative possibility of such an occurrence be considered substantial

Trial Stages: Merits: Motions

1. denial of a government request for delay to accommodate schedule of prosecution witness created no legally cognizable right to a trial without the prosecution witness; nor can the speculative possibility of such an occurrence be considered substantial

Trial Stages: Merits: Trial Procedures › Withdrawal of charges

1. withdrawal of charges, de facto dismissal, preferral anew, a new Article 32 investigation, and referral to another court-martial did not clearly thwart military judge’s ruling denying government motion for a continuance where: (1) new trial date was four months after that requested in government’s motion for continuance; (2) re-investigation and re-referral were not matters addressed by the military judge’s ruling denying the continuance; and (3) military judge stated that his ruling did not preclude the new preferral and burdensome procedural course of action selected by the convening authority to bring the charges to trial again
2. withdrawal of charges, de facto dismissal, preferral anew, a new Article 32 investigation, and referral to another court-martial after military judge’s ruling denying government motion for a continuance did not constitute illegal interference with the exercise of the judicial function because the convening authority’s actions did not violate any procedural rules of the Manual for Courts-Martial and thus did not constitute “illegal” interference with the judicial function
3. withdrawal and re-referral of charges was proper under RCM 604(b) when done to further the legitimate command objective of accommodating a victim’s schedule and avoid the issuance of a subpoena
4. appellant was not substantially prejudiced by withdrawal and re-referral of charges where: (1) re-referral was to the same level of court-martial; (2) trial was before the same military judge as first trial; (3) appellant lost no benefits from a favorable trial ruling as denial of a continuance created no legally cognizable right to a trial without a prosecution witness; (4) appellant was not in pretrial confinement; and (5) appellant made no pretrial motion at second court-martial alleging prejudicial trial delay