U.S. v. Becker, 53 M.J. 229

Trial Stages: Sentence and Punishment: Instructions

1. instructions at sentence rehearing included one permitting confinement in lieu of a dishonorable discharge and another covering voting procedures for periods of confinement in excess of ten years; while these instructions arguably increased appellant’s vulnerability to confinement which was more severe in the abstract than dishonorable discharge, the members were unaffected and any error was harmless in light of the fact that members adjudged only a bad-conduct discharge and no confinement

Trial Stages: Appeals: Remedies › Generally

1. dismissal of charges is not an appropriate remedy for a speedy trial violation at a sentence-only rehearing where an accused’s guilt already has been determined and affirmed on appeal, and where the only remaining determination is the sentence

Miscellaneous Matters: Speedy Trial: Rule for Courts-Martial 707

1. the absence of language in RCM 707 specifically tailored to sentence-only rehearings is not viewed as a conscious decision to retain a 90-day speedy trial violation presumption; rather, the mechanics of RCM 707 can be applied to sentence-only rehearings in a manner that will protect a servicemember’s rights under Articles 10 and 33 without applying a 90-day presumption
2. absent a modification of RCM 707, the procedures established under RCM 707 will be applied to sentence-only proceedings in accordance with the following principles: (1) the 120-day clock will start on the date that the responsible convening authority receives the record of trial and the opinion authorizing or directing a rehearing; (2) the clock will stop when the accused is brought to the bar for sentencing, typically at the first session under Article 39(a), UCMJ; (3) if the government has sufficient reason to justify a delay, all such requests for delay, together with supporting reasons, will be submitted to the convening authority prior to referral or, after referral, to the military judge for resolution; and, (4) the remedy should be tailored to the harm suffered
3. the application of speedy trial principles to sentence-only rehearings should include cases that do not involve confinement, absent an express provision in RCM 707 excluding such cases
4. the application of nonconstitutional speedy trial principles to sentence-only rehearings should be applied in a prospective fashion
5. even applying nonconstitutional speedy trial principles to appellant’s case, appellant was entitled to no relief, despite the fact that rehearing started 316 days after the record had been transmitted to the convening authority, where appellant made no showing that the delay impacted on the rehearing and dismissal of the charges would be disproportionate to the harm suffered

Miscellaneous Matters: Speedy Trial: Sixth Amendment Right to a Speedy Trial

1. test for violations of the Sixth Amendment right to a speedy trial includes four factors: (1) length of delay; (2) reasons for the delay; (3) appellant’s demand for speedy trial; and (4) prejudice to appellant
2. appellant suffered no Sixth Amendment speedy trial violation where it took government 337 days to accomplish sentence rehearing where the government otherwise proceeded with reasonable diligence, appellant made no demand for speedy and prompt hearing, and there was no evidence of prejudice