U.S. v. Schuber, 70 M.J. 180

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. an appellate court reviews de novo the question of whether appellant was denied his rights to a speedy trial under Article 10, UCMJ, as a matter of law, and it is bound by the facts as found by the military judge unless those facts are clearly erroneous; under Article 10, UCMJ, when any person subject to the UCMJ 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; in reviewing claims of a denial of a speedy trial under Article 10, UCMJ, the term “immediate steps” has been interpreted to mean not constant motion, but reasonable diligence in bringing the charges to trial; thus, the government must demonstrate reasonable diligence in proceeding toward trial during appellant’s pretrial confinement; however, brief inactivity is not fatal to an otherwise active, diligent prosecution; the test is reasonable diligence, not textbook prosecution
2. although Article 10, UCMJ, creates a more stringent speedy trial standard than a Sixth Amendment analysis, alleged Article 10, UCMJ, violations are analyzed using the same Barker v. Wingo [407 US 514 (1972)] four-factor structure: (1) the length of the delay, (2) the reasons for the delay, (3) whether appellant made a demand for speedy trial, and (4) prejudice to appellant; the first factor is to some extent a triggering mechanism, and unless there is a period of delay that appears, on its face, to be unreasonable under the circumstances, there is no necessity for inquiry into the other factors that go into the balance
3. whether the amount of time is facially unreasonable in an Article 10, UCMJ, context depends on the seriousness of the offense, the complexity of the case, and the availability of proof, and it also depends on other factors specific to the purposes of Article 10, UCMJ, which is to prevent an accused from languishing in prison without notice of the charges and without an opportunity for bail; these additional circumstances include whether appellant was informed of the accusations against him, whether the government complied with procedures relating to pretrial confinement, and whether the government was responsive to requests for reconsideration of pretrial confinement

Miscellaneous Matters: Speedy Trial: Article 10

1. Article 10, UCMJ, provides that when any person subject to the UCMJ 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; while the requirements of Article 10 are more rigorous than the Sixth Amendment to the United States Constitution, it becomes operative only after arrest or confinement
2. the two forms of restraint, arrest and restriction, are not per se equivalent for the purpose of assessing the applicability of Article 10; as noted in the Discussion to RCM 304(a), restriction in lieu of arrest is a less severe restraint on liberty than is arrest; arrest includes suspension from performing full military duties and the limits of arrest are normally narrower than those of restriction in lieu of arrest; the actual nature of the restraint imposed, and not the characterization of it by the officer imposing it, will determine whether it is technically an arrest or restriction in lieu of arrest; restriction and arrest are not conterminous; rather, as outlined in the RCMs, there are gradations of restriction; whether a particular restriction amounts to arrest for the purposes of Article 10, UCMJ, will depend on a contextual analysis, including consideration of such factors as the geographic limits of constraint, the extent of sign-in requirements, whether restriction is performed with or without escort, and whether regular military duties are performed
3. in this case, appellant was subject to restriction not tantamount to arrest during the period following his 71 days in pretrial confinement, where he was restricted to base rather than to quarters, where although he was required to provide weekly urine samples, he was permitted to avail himself of all usual base activities, where he was given a 3-day pass to grieve with his family upon the death of his grandfather, where he was not placed under guard or escort during his base restriction or travel, and where he was not suspended from performing normal military duties
4. the right to a speedy trial is expressly guaranteed by RCM 707 and the Sixth Amendment; although Article 10, UCMJ, is generally directed toward the advent of a speedy trial, it is specifically addressed to a particular harm, namely causing an accused to languish in confinement or arrest without knowing the charges against him and without bail
5. because appellant’s 67-day restriction prior to his trial did not amount to arrest, the purpose of Article 10, UCMJ, was vindicated, and the particular harm that Article 10, UCMJ, was intended to address was removed - appellant was no longer arrested or confined without knowing the charges of which he was accused and without opportunity for bail
6. under Article 10, UCMJ, when any person subject to the UCMJ 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; the term “immediate steps” has been interpreted to mean not constant motion, but reasonable diligence in bringing the charges to trial; thus, the government must demonstrate reasonable diligence in proceeding toward trial during appellant’s pretrial confinement; however, brief inactivity is not fatal to an otherwise active, diligent prosecution; the test is reasonable diligence, not textbook prosecution
7. although Article 10, UCMJ, creates a more stringent speedy trial standard than a Sixth Amendment analysis, alleged Article 10, UCMJ, violations are analyzed using the same Barker v. Wingo [407 US 514 (1972)] four-factor structure: (1) the length of the delay, (2) the reasons for the delay, (3) whether appellant made a demand for speedy trial, and (4) prejudice to appellant; the first factor is to some extent a triggering mechanism, and unless there is a period of delay that appears, on its face, to be unreasonable under the circumstances, there is no necessity for inquiry into the other factors that go into the balance
8. whether the amount of time is facially unreasonable in an Article 10, UCMJ, context depends on the seriousness of the offense, the complexity of the case, and the availability of proof, and it also depends on other factors specific to the purposes of Article 10, UCMJ, which is to prevent an accused from languishing in prison without notice of the charges and without an opportunity for bail; these additional circumstances include whether appellant was informed of the accusations against him, whether the government complied with procedures relating to pretrial confinement, and whether the government was responsive to requests for reconsideration of pretrial confinement
9. under the circumstances of this case, appellant’s pretrial confinement for 71 days after he was charged with wrongful drug use on the basis of a random sample urinalysis was not facially unreasonable under Article 10, UCMJ, rendering a review of the remaining Barker v. Wingo [407 US 514 (1972)] factors unnecessary; although the prosecution of this case was less than commendable, where the government did not prefer the charges, initiate an Article 32, UCMJ, investigation, forward the charges, or respond to appellant’s first three discovery requests, which included demands for a speedy trial, in a timely manner, the test is reasonable diligence, not textbook prosecution; here, appellant was placed in pretrial confinement based on a straightforward accusation of drug use, supported by four positive samples, but evidence consisting of the final two positive samples was not reported until 15 days into pretrial confinement; in addition, this became a contested case requiring additional discovery and the services of an expert witness, there was ongoing discovery throughout the 71 days, and appellant was informed of the accusations against him as early as his pretrial confinement hearing, the second day of confinement; moreover, absent any complaint by appellant, and under the presumption of regularity, it may be presumed that the government complied with pretrial confinement procedures, including a 24-hour report to the commander, a 48-hour probable cause determination, the commander’s 72-hour memorandum, and a 7-day review; furthermore, the government responded within 2 days of appellant’s initial request for reconsideration of pretrial confinement and within one day of appellant’s expedited request for reconsideration of pretrial confinement