Petition for Writ of Certiorari — Higgins v. United States

7 2 FILED

DEC id 1988

JO : a

No.

mull

‘i Ese

In the Supreme Court of the Gnited States

OCTOBER TERM, 1988

Nicky M. HIGGINS, PETITIONER

v.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

FRANK J. SPINNER

Major, Office of The Judge

Advocate General

United States Air Force

HQ USAF/JAJD

Bldg 5683

Bolling AFB, DC 20332-6128

(202) 767-1562

Counsel of Record

RICHARD F. O’HAIR

Colonel, Office of The Judge

Advocate General

United States Air Force

DECEMBER 1988 Counsel for Petitioner

QUESTION PRESENTED

Did the United States Court of Military Appeals err as a

matter of law by holding that the time period required to

process the petitioner’s tender of resignation in lieu of

court-martial was excludable from government account-

ability under Rule for Courts-Martial 707(c)(8) as a delay

for good cause?

(1)

INDEX

Page

Ce Ces ke aa oh and hee eee ee eee l

ren eS re aoa e 04 what 5 Oa 6 4a ans l

Regulatory Provisions Involved .......................... 2

a's aca vas bk bb cw aula ea weds 3 4

Reasons for Granting the Writ .................0000.2000- 6

I. THE BROAD CONSTRUCTION GIVEN TO THE

TERM “DELAY FOR GOOD CAUSE” IN THIS CASE

OF FIRST IMPRESSION IS UNWARRANTED AND

SERVES TO UNDERMINE THE ENTIRE SPEEDY

OI, 5c 56 ho kA os 5 co ee 8 iss a ow aie 6

Il. A TENDER OF RESIGNATION IN LIEU OF

TRIAL IS A NORMAL INCIDENT OF TRIAL PRAC-

TICE AND NOT THE TYPE OF UNIQUE EVENT

CONTEMPLATED BY R.C.M. 707(c)(8), DELAY FOR

ra es Li iale dice c ka bee ator kA ie 8

eS eter a ht tn es ca Se Shears a, 1]

ee le tie yal) a wa ine PER ways ON ee la

et ES ee ies wt Uae eae Avie ve ek ot lla

TABLE OF AUTHORITIES

Cases:

Owen of Georgia, Inc. v. Shelby County, 648 F.2d

I ee gk ey a wee eae ws 7

United States v. Durr, 21 M.J. 576 (A.C.M.R. 1985)... . 7

United States v. Harris, 20 M.J. 795 (N.M.C.ML.R.

se Bai a ea a 7

United States v. Higgins, ACM 25839 (A.F.C.M.R. June

Ss eee wily aa w eae ie 1, 6, 10

United States v. Higgins, 27 M.J. 150 (C.M.A. 1988) .... passim

United States v. Kuelker, 20 M.J. 715 (N.M.C.MLR.

ee Net Re es fp ee es er ee wk 7

United States v. Miniclier, 23 M.J. 843 (A.F.C.ML.R.

A aa a eee 6, 10

United States v. Sonnenschein, 1 U.S.C.M.A. 64, 1

Nn kya cc od ek pen ane ene ckaees z

IV

Cases — Continued: Page

United States v. Woods, 26 M.J. 372 (C.M.A. 1988) ..... 8

Statutory Authorities:

OE. S.C.. 6 Bree TRE OBES ow. oc cece cc csss l

y BIR Come Br. go ED, ..) rer l

Uniform Code of Military Justice -

aR, ee ee NG oe nc ko Rice en Des ee 7

es es es I a a as a a Che a eacn Saws 7

Regulations

Air Force Regulation 36-12, (1 October 1984); paragraph

MAMET 2G De dne dares + a0 de A Rae RE aE Re Cee ERE R ARO 4,5

Manual for Courts-Martial, United States, 1984, Rules

for Courts-Martial:

5 Bester a nr epee Mere ee passim

CI aoa Sani le ee een ay ae 5

Ns ol ala aa Spa ila g bia ad dR a ARR OS 10

SE Ns hee ak aL es ey Ba gktas aka nen 5,6

DCIS Roy eens eee ea ee oe passim

Sutherland Stat. Const. § 47.17 (4th Ed) ............... 7, 10

Sutherland Stat. Const. § 59.03 (4th Ed) ............... 7, 11

§Jn the Supreme Court of the United States

OCTOBER TERM, 1988

No.

Nicky M. HIGGINS, PETITIONER

V.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

The petitioner, Nicky M. Higgins, respectfully prays

that a writ of certiorari issue to review the judgment of the

United States Court of Military Appeals entered in his

case.

OPINIONS BELOW

The opinion of the United States Court of Military Ap-

peals is reported at 27 M.J. 150 (C.M.A. 1988) (Appendix

A). An unreported decision of the Air Force Court of

Military Review was rendered on June 4, 1987 (Appendix

B).

JURISDICTION

The judgment of the United States Court of Military

Appeals was entered on October 17, 1988. The jurisdiction

of this Court is invoked under 10 U.S.C. § 867(h)(Supp III

1985) and 28 U.S.C. § 1259(3)(Supp III 1985).

(1)

tN

REGULATORY PROVISION INVOLVED

Rule 707* of the Rules for Courts-Martial, Manual for

Courts-Martial, United States, 1984 (“M.C.M., (1984)”)

provided, in pertinent part:

Rule 707. Speedy trial

(a) Jn general. The accused shall be brought to trial

within 120 days after the earlier of:

(1) Notice to the accused of preferral of

charges under R.C.M. 308; or

(2) The imposition of restraint under R.C.M.

304(a)(2)-(4).

* * *

(c) Exclusions. The following periods shall be ex-

cluded when determining whether the period in

subsection (a) of this rule has run—

(1) Any periods of delay resulting from other

proceedings in the case, including:

(A) Any examination into the mental

capacity or responsibility of the accused;

(B) Any hearing on the capacity of the ac-

cused to stand trial and any time during

which the accused lacks capacity to stand

trial;

(C) Any session on pretrial motions;

(D) Any appeal filed under R.C.M. 908

unless it is determined that the appeal was

filed solely for the purpose of delay with

* R.C.M. 707 has been amended and the portion relevant to this

case, which will herein be cited as R.C.M. 707(c)(8), is now contained

in R.C.M. 707(c)(9), M.C.M. (1984) (Ch. 3 effective March 12, 1987).

the knowledge that it was totally frivolous

and without merit; and

(E) Any petition for extraordinary relief

by either party.

(2) Any period of delay resulting from

unavailability of a military judge when the

unavailability results from extraordinary cir-

cumstances.

(3) Any period of delay resulting from a delay

in a proceeding or a continuance in the court-

martial granted at the request or with the con-

sent of the defense.

(4) Any period of delay resulting from a failure

of the defense to provide notice, make a request,

or submit any matter in a timely manner as

otherwise required by this Manual.

(5) Any period of delay resulting from a delay

in the Article 32 hearing or a continuance in the

court-martial at the request of the prosecution

if:

(A) The delay or continuance is granted

because of unavailability of substantial

evidence relevant and necessary to the pros-

ecution’s case when the Government has ex-

ercised due diligence to obtain such evi-

dence and there exists at the time of the

delay grounds to believe that such evidence

would be available within a reasonable

time; or

(B) The continuance is granted to allow

the trial counsel additional time to prepare

the prosecution’s case and additional time is

justified because of the exceptional circum-

stances of the case.

4

(6) Any period of delay resulting from the

absence or unavailability of the accused.

(7) Any reasonable period of delay when the

accused is joined for trial with a coaccused as to

whom the time for trial has not yet run and there

is good cause for not granting a severance.

(8) Any other period of delay for good cause,

including unusual operational requirements and

military exigencies.

Paragraph 2-22, Air Force Regulation 36-12 (1 October

1984), Administrative Separation of Commissioned Of-

ficers, Chapter 2, Section D, provided:

2-22. Trial Pending Action on Application. If for-

mal charges have been preferred prior to final deci-

sion on a tender of resignation under table 2-8, the

trial ordinarily should be postponed pending final ac-

tion on the resignation. If, for any reason, it is deter-

mined that trial should proceed before notification of

final action, obtain prior authorization from HQ

USAF/JAJM, 1900 Half Street, S.W., Washington

DC 20324. Direct communication by quickest means

is authorized.

STATEMENT OF THE CASE

Petitioner, an Air Force Captain and dentist, was tried

by a general court-martial with members at Goodfellow

Air Force Base, Texas. He was convicted, pursuant to his

pleas, of violating two orders, wrongfully using

meperidine, and larceny, in violation of Articles 90, 112a,

and 121, Uniform Code of Military Justice (U.C.M.J.), 10

U.S.C. §§ 890, 912a, and 921, respectively. The court

sentenced him to be dismissed from the service, to forfeit

all his pay and allowances and to pay a $5,000 fine.

: 5

At trial, defense counsel, contending the 120 day speedy

trial rule embodied in R.C.M. 707(a) had been breached,

moved to dismiss all charges. The facts in respect to this

motion were not in dispute. The stipulated chronology

reflects that a period of 187 days elapsed between the date

charges were preferred and the first day of trial. It was

conceded that the defense had requested four delays dur-

ing various stages of the pretrial process and therefore was

accountable for a total of 49 days out of this period, leav-

ing a period of 138 days in issue. (R. 22).

At issue was whether the time period between July 11,

1986, the date on which petitioner tendered his resignation

for the good of the service under Air Force Regulation

36-12, and October 17, 1986, the date on which the Secre-

tary of the Air Force declined this resignation, or any part

thereof, was excludable under either R.C.M. 707(c)(3) as a

delay “at the request or with the consent of the defense” or

under R.C.M. 707(c)(8) as a “delay for good cause.”

The defense position on this motion was that “there was

no delay requested or consented to by the defense suffi-

cient to lessen the period beyond the 120 days allowed.”

(R. 12). In opposing the motion, trial counsel offered two

alternative positions as to why the period of July 11, 1986

to October 27, 1986 was excludable. First, his primary

position was that “under R.C.M. 707(c)(3), the filing of a

resignation request by the accused in this case was a

defense generated delay.” (R. 16). His fall back position

was that, in any event, petitioner’s tender of resignation

resulted in a “delay for good cause” under R.C.M.

707(c)(8) for the period during which the resignation was

pending.

The military judge endorsed the trial counsel’s legal

analysis in toto. United States v. Higgins, supra, 27 M.J.

at 151-153; Pet. App. 4a-7a. On June 4, 1987, the Air

Force Court of Military Review disagreed and overturned

6

petitioner’s conviction, finding that the government failed

to bring the petitioner to trial within the 120 day time limit

established by R.C.M. 707, M.C.M. (1984). United States

v. Higgins, ACM 25829 (A.F.C.M.R. 1987), Appendix B.

The Court of Military Review completely disagreed with

the analysis articulated by the trial judge. The Judge Ad-

vocate General then certified the two issues for review to

the United States Court of Military Appeals.

On October 17, 1988, the Court of Military Appeals

rendered an opinion, reversing the lower court and ruling

that the time required to process petitioner’s resignation in

lieu of court-martial would be excluded from the 120 day

period for speedy trial purposes. United States v. Higgins,

supra, 27 M.J. 153, 154. The Court relied solely upon

R.C.M. 707(c)(8) which excludes periods “for good cause,

including unusual operational requirements and military

exigencies.” This ruling reduced the total elapsed days

from preferral of charges to trial to within the 120 day

period set under R.C.M. 707. The Court of Military Ap-

peals did not rule on the applicability of R.C.M. 707(c)(3),

delay “at the request or with the consent of the defense.”

REASONS FOR GRANTING THE WRIT

I

THE BROAD CONSTRUCTION GIVEN TO THE TERM

“DELAY FOR GOOD CAUSE” IN THIS CASE OF FIRST IM-

PRESSION IS UNWARRANTED AND SERVES TO UNDER-

MINE THE ENTIRE SPEEDY TRIAL FRAMEWORK.

Petitioner’s case presented the first opportunity for the

Court of Military Appeals to construe the meaning of

“delay for good cause” under R.C.M. 707(c)(8). In seizing

this opportunity, the Court made no reference to four

significant decisions, narrowly construing this term,

rendered by the Air Force, Navy-Marine and Army Courts

of Military Review. United States vy. Miniclier, 23 M.J.

-

843 (A.F.C.M.R. 1987); United States v. Harris, 20 M.J.

795 (N.M.C.M.R. 1985); United States v. Kuelker, 20

M.J. 715 (N.M.C.M.R. 1985); United States v. Durr, 21

M.J. 576 (A.C.M.R. 1985). Furthermore, the Court did

not mention or examine such arguably applicabie com-

mon rules of statutory construction as the doctrine of

ejusdem generis and the rule that penal statutes should be

Strictly construed. Sutherland Stat. Const. §§ 47.17,

59.03. See, e.g., Owen of Georgia, Inc. v. Shelby County,

648 F.2d 1084 (6th Cir. 1981) (doctrine of ejusdem generis

applied in construing “good cause” provision in civil

Statute). These traditional rules are designed to assist a

court in determining the legislature’s intent in enacting a

particular statute. They are equally applicable to constru-

ing procedural rules prescribed by the President under Ar-

ticle 36, U.C.M.J. United States v. Sonnenschein, |

U.S.C.M.A. 64, 1 C.M.R. 64 (1951). A brief reference in

the Court’s opinion to the ABA standard and Drafter’s

Analysis hardly suffices to support the ratio decidendi.

United States v. Higgins, supra 27 M.J. at 153.

Given the relatively narrow construction of R.C.M.

707(c)(8) rendered by the lower courts of military review,

it is difficult to justify the interpretation made by the

Court of Military Appeals, particularly where that Court

provided an insufficiently analytical basis for its decision.

The failure to adequately address the drafter’s intent in

carving Out the exception provided by R.C.M. 707(c)(8)

has created a real potential for reading into “delay for

good cause” heretofore unimagined exceptions which

would tend to eviscerate the very heart of the speedy trial

framework. This framework was designed to protect an

individual’s right to speedy resolution of charges preferred

against him and to hold the government accountable for

unnecessary and prejudicial delays. Article 10, U.C.M.J.;

M.C.M. (1984), Drafter’s Analysis, A21-37.

Although the question presented does not require

resolution between conflicting appellate court decisions, it

remains significant within the realm of military court-

martial practice. The military speedy trial framework, in

general, and R.C.M. 707(c)(8), in particular, are unique

and not likely to be construed by the federal circuit courts

of appeals. The “good cause” exception carries such poten-

tial for abuse that its proper construction in this case of

first impression is essential to the continued vitality of the

speedy trial protections afforded an accused. The Court of

Military Appeals’ decision in petitioner’s case, if left to

stand, is a major crack in the speedy trial dike.

A TENDER OF RESIGNATION IN LIEU OF TRIAL IS A

NORMAL INCIDENT OF TRIAL PRACTICE AND NOT

THE TYPE OF UNIQUE EVENT CONTEMPLATED BY

R.C.M. 707(c)(8), DELAY FOR GOOD CAUSE.

Petitioner’s tender of resignation in lieu of trial by

court-martial was submitted through the general court-

martial convening Authority to the Secretary of the Air

Force pursuant to Air Force Regulation 36-12 (1 October

1984). No requirement exists that final action on the

tendered resignation be completed prior to trial. In fact,

the Court of Military Appeals held in United States v.

Woods, 26 M.J. 372 (C.M.A. 1988), that the Secretary of

the Army’s acceptance, after trial, of a resignation

tendered prior to trial served to abate the conviction. This

decision supports the conclusion that processing of a

tendered resignation is an administrative function separate

and distinct from the judicial process. Although a slight

distinction may be drawn between Air Force and Army

regulations, the Air Force regulation provides a simple

mechanism to proceed to trial before final action on a

- 9

tender of resignation. The convening authority need only

request permission to proceed to trial. Air Force Regula-

tion 36-12, paragraph 2-22. This provision has been part

of the regulation since 1952 and is commonly encountered

in officer cases. It must be understood that this paragraph

does not prohibit trial pending action by the Secretary.

Apparently the Court of Military Appeals did not

recognize this critical distinction. United States v. Higgins,

supra, 27M.J. at 153. Needless to say, petitioner’s conven-

ing authority did not request permission to proceed to

trial.

Even if the regulation were construed to allow the

Secretary of the Air Force to take control over a case,

removing it from the power of the local command, that is

not a sufficient basis for freeing the government from

speedy trial constraints under a “good cause” artifice. This

is so for a number of reasons.

First, Air Force Regulation 36-12 and Rule for Court-

Martial 707 were both promulgated under the authority of

the President, the Commander-in-Chief. Both the

Secretary of the Air Force and the general court-martial

convening authority derive their power from the Presi-

dent. To free one delegee of that power from responsibili-

ty for complying with rules established by the President,

because of the acts of another delegee of that power, when

both delegees should be acting in concert, amounts to

nothing more than a shell game. It is only reasonable to re-

quire that these delegees of power exercise their powers

harmoniously, responsibly and judiciously, rather than in

a manner which subverts the rights of an accused.

Second, by applying traditional rules of statutory con-

struction, R.C.M. 707(c)(8) can only be interpreted in such

a way that it does not encompass tenders of resignation

submitted by officers. No doubt, the five Air Force Court

10

of Military Review judges that ruled on this question,

judge advocates all, with combined military justice ex-

perience approaching three decades, are familiar with Air

Force trial practice. United States v. Miniclier, supra;

United States v. Higgins, ACM 25839, (A.F.C.M.R.

1987). They understood, as the Court of Military Appeals

did not, that no reasonable distinction can be drawn be-

tween processing an officer’s tender of resignation and an

enlisted member’s request for discharge in lieu of trial.

This practice, which has spanned almost four decades, had

to be contemplated by the drafters of R.C.M. 707, a rule

of relatively recent origin. Judge Sullivan’s distinction,

that because an enlisted member’s request is processed

locally, it does not come within R.C.M. 707(c)(8), is thus

inconsistent with logic and experience. United States v.

Higgins, supra, 27 M.J. at 150. ;

The doctrine of ejusdem generis also supports this con-

clusion. Sutherland Stat. Const. § 47.17 (4th Ed). Until

the Court of Military Appeals issued its decision in this

case, no other appellate military court had held that

R.C.M. 707(c)(8) covered situations other than “unique”

events of a class comparable to those illustrated by the

rule, “unusual operational requirements and military ex-

igencies.” When the entire list of exclusions under R.C.M.

707(c) is read together with these listed examples included

in R.C.M. 707(c)(8), and recognizing that the rule makes

no mention of officer resignation tenders, a normal inci-

dent of trial practice, the conclusion that “good cause”

does not cover such requests is inescapable.

Also supporting this conclusion is the “ancient rule of

statutory construction that penal statutes should be strictly

construed against the government or parties seeking to en-

force statutory penalties and in favor of the persons on

whom penalties are sought to be imposed.” Sutherland

11

Stat. Const. § 59.03 (4th Ed). The Court of Military Ap-

peals, by broadly construing R.C.M. 707(c)(8), has wrong-

ly encumbered petitioner’s right to a speedy trial which

R.C.M. 707 was designed to protect. An expansive inter-

pretation of delay for good cause “could allow the excep-

tion to devour the rule.” United States v. Kuelker, supra at

176.

CONCLUSION

“Delay for good cause,” an amorphous phrase at best,

must be given form carefully and consistently. No other

term in the speedy trial framework carries such great

potential for harm. What otherwise appears to be good,

much like the Trojan horse, can easily be engaged for ill

purposes, and ultimately may be employed to destroy the

entire framework. This Court is the last guardian protect-

ing not only petitioner’s speedy trial rights, but the security

of the entire speedy trial structure. For the reasons stated,

the Court of Military Appeals has failed to construe

R.C.M. 707(c)(8) correctly. Petitioner, therefore, requests

that this Court grant his petition for a writ of certiorari

and affirm the decision of the Air Force Court of Military

Review.

FRANK J. SPINNER

Mayor, Office of The Judge

= Advocate General

United States Air Force

HQ USAF/JAJD

Bldg 5683

Bolling AFB, DC 20332-6128

(202) 767-1562

Counsel of Record

RICHARD F. O’HAIR

Colonel, Office of The Judge

Advocate General

United States Air Force

Di CEMBER 1988 Counsel for Petitioner

aaa

APPENDICES

ale ee ee Pe a ere ©! Syne ae a | .. = =

APPENDIX A

U.S. Court of Military Appeals

No. 58,190

ACM 25839

UNITED STATES, APPELLANT

Vv.

Nicky M. HIGGINS, CAPTAIN U.S. AIR FORCE, APPELLEE

Oct. 17, 1988

For Appellant: Captain Jeffrey H. Curtis (argued); Col-

onel Joe R. Lamport, Lieutenant Colonel Robert E. Gio-

vagnoni, Captain Marc Van Nuys (on brief).

For Appellee: Major Frank J. Spinner (argued); Col-

onel Leo L. Sergi (on brief).

Opinion of the Court

SULLIVAN, Judge:

On December 8-9, 1986, the accused was tried by

general court-martial with members at Goodfellow Air

Force Base, Texas. Pursuant to his pleas, he was found

guilty of twice violating lawful commands from. his

superior officers, wrongfully using Meperidine (common-

ly known as Demerol), and committing larceny, in viola-

tion of Articles 90, 112a, and 121, Uniform Code of Mili-

tary Justice, 10 U.S.C. §§ 890, 912a, and 921, respective-

ly. He was sentenced to dismissal, total forfeitures and a

(1a)

2a

$5,000 fine. After the convening authority approved the

sentence except for the fine, the Court of Military Review,

on June 4, 1987, set aside the findings of guilty and the

sentence and dismissed the charges against him.

On July 1, 1987, the Judge Advocate General of the Air

Force pursuant to Article 67(b)(2), UCMJ, 10 U.S.C.

§ 867(b)(2), requested that we review the decision of the

Court of Military Review. He certified for review the fol-

lowing issues:

WHETHER THE AIR FORCE COURT OF

MILITARY REVIEW ERRED AS A MATTER OF

LAW IN DISMISSING ALL CHARGES UNDER

R.C.M. 707(a) BY HOLDING THAT THE AC-

CUSED’S REQUEST FOR RESIGNATION IN

LIEU OF COURT-MARTIAL DID NOT CON-

STITUTE A DELAY AT THE REQUEST OR

WITH THE CONSENT OF THE DEFENSE

UNDER R.C.M. 707(c)(3).

IF THE ANSWER TO ISSUE I IS IN THE

NEGATIVE, WHETHER THE AIR FORCE

COURT OF MILITARY REVIEW ERRED AS A

MATTER OF LAW IN DISMISSING ALL

CHARGES UNDER R.C.M. 707(a) BY HOLDING

THAT THE TIME PERIOD REQUIRED TO

PROCESS THE ACCUSED’S TENDER OF

RESIGNATION WAS NOT EXCLUDABLE FROM

GOVERNMENT ACCOUNTABILITY UNDER

R.C.M. 707(a) AS DELAY FOR GOOD CAUSE

PURSUANT TO R.C.M. 707(c)(8).

We conclude that the delay occasioned by the accused’s

tender of his resignation which occurred as a result of its

processing Outside the local command was excludable

——

3a

from government accountability as a delay for good cause

within the meaning of R.C.M. 707(c)(8), Manual for

Courts-Martial, United States, 1984.' Cf. United States v.

O’Brien, 22 U.S.C.M.A. 557, 48 C.M.R. 42 (1973).

The facts of this case are not in dispute. The parties’

chronology stipulates the following:

4 June 1986: Charges preferred.

6 June 1986: Article 32 Hearing.

11 June 1986: Accused placed on administrative hold

prior to date of separation (original date for separa-

tion was 30 June 1986).

20 June 1986: Article 32 Report completed.

24 June 1986: Accused acknowledges receipt of Article

32 report.

3 July 1986: Defense Counsel acknowledges receipt of

Article 32 report.

8 July 1986: Defense Counsel requests delay to 11 July

1986 for response to Article 32 report.

11 July 1986: Date on resignation request.

16 July 1986: Resignation request received by 3480

ABG/DPMQS.

5 August 1986: Referral of charges by GCM.

7 August 1986: Defense Counsel requests 4 day delay

to submit additional matters in resignation package.

8 August 1986: GTTC/JA review of resignation request.

11 August 1986: SPCM recommends disapproval of

resignation request.

13 August 1986: Resignation request forwarded to

GCM.

15 August 1986: Charges as referred by GCM are served

on the Accused.

29 August 1986: GCM recommends disapproval of

resignation request.

' This provision is now contained in R.C.M. 707(c)(9), Manual tor

Courts-Martial, United States, 1984 (Ch. 3, effective March 12, 1987).

4a

17 October 1986: Secretary of the Air Force declines

resignation request.

October 1986: Case docketed for trial by JAJT-3 for 27

October 1986.

21 October 1986: Defense counsel requests delay from

October 27 until [in addition to another delay — De-

cember 8, 1986].

Total elapsed days from date of preferral to date of

trial (excluding date of preferral per RCM 707): 187

Total days both parties and Accused agree are ac-

countable as Defense delay: 49 (42 of these days are

after the trial setting of 27 October 1986)

The period in dispute is the 108 days between July 11,

1986, and October 27, 1986, during which the accused’s re-

quest for resignation in lieu of court-martial was being

processed.

At trial, the military judge made the following ruling as

a result of the defense motion to dismiss based upon

R.C.M. 707(e):

I find this entire period of time is accountable to the

defense for the following reasons.

First, the resignation provisions contained in Sec-

tion D, Air Force Regulation 36-12 are designed to

allow an accused to seek to avoid trial by courts-

martial, a process that could result in a federal court

conviction and in some cases, including this one, a

punitive discharge, both of which can be detrimental

to an individual’s economic and social future at the

very least.

Two, a conviction for theft of a controlled sub-

stance for which the accused was allegedly account-

able and use of that controlled substance would un-

doubtedly result in the withdrawal of the accused’s

license to practice dentistry while an administrative

Sa

discharge would not necessarily, and probably would

not, have the same result.

Three, the Government acted in accordance with

paragraph 2-22, Air Force Regulation 36-12, in post-

poning the trial until final action on the resignation.

Four, that although the accused is not required to

exhaust administrative remedies in criminal cases, ad-

ministrative remedies such as a request for resignation

are available for use by an accused at his or her op-

tion. The accused, in this case, voluntarily elected to

exercise that option.

Five, the accused did not make a demand for trial

during this time despite the passage of his date of

separation and withdrawal of his duties of practicing

dentistry. The only conclusion that can be drawn

from this is that Captain Higgins also appreciated the

benefits to his future of an administrative separation

from the service rather than proceed to trial where he

would expose himself to a federal court conviction

and potentialy a punitive discharge.

As such, I find that the delay from 16 July 1986 to 17

October 1986 was with the consent of the accused,

albeit, not affirmatively expressed, thereby qualifying

the period to be excluded in accordance with Rule for

Courts-Martial 707(c)(3). To hold otherwise defies

logic.

I find that processing of the resignation in 94 days is

reasonable, particularly in light of the fact that the ac-

cused requested a four-day delay in the processing of

the resignation from 7 to 11 August 1986 in order to

submit additional matters.

Even if it were to be held, as suggested by the Navy-

Marine Court of Military Review, that processing of a

|

6a

resignation is not excludable in accordance with Rule

of Courts-Martial 707(c)(3), I find the delay from 16

July 1986 to 17 October 1986 was for good cause pur-

suant to Rule of Courts-Martial 707(c)(8). In so find-

ing, I have concluded that unusual operating require-

ments and military exigencies were noted in the sub-

section as illustrative rather than all inclusive based

upon the use of the word, including.

Specifically, I find the delay for good cause as to do

otherwise would be to the prejudice of the accused in

exposing him to the possibility of a federal court con-

viction and punitive discharge and their attendant

negative ramifications.

It should be noted that I am not persuaded by the fact

that the accused has been extended on active duty be-

yond his original date of separation on 30 June 1986

and, has not been allowed to practice dentistry since

11 February 1986. On the contrary, he has continued

to be paid as an active duty member of the Air Force

and to enjoy all of the benefits associated with that

service. No one is guaranteed he or she will be allowed

to continue on in his or her desired duty in the Air

Force. Rather, Air Force personnel are switched from

one job to another for a variety of reasons both posi-

tive and negative on a daily basis.

Accordingly, when all applicable exclusions are de-

ducted from the 187 days since preferral of charges in

this case, I find the Government has brought this case

to trial well within the time constraints of Rule of

Courts-Martial 707.

Although not specifically suggested by the defense, I

have also considered the Burton rules, Article 10 of

the Uniform Code of Military Justice and the Sixth

Amendment.

Ta

Since the accused was not in any form of restraint

prior to trial, I find the Burton rules and Article 10 of

the Uniform Code of Military Justice are not appli-

cable. 7

However, I have considered the Sixth Amendment.

There has been a lengthy delay in the bringing of the

case to trial. However, all but 47 days of that delay

are attributable to the defense, nor has the accused

asserted his right to a speedy trial at any time during

the delay. Even though the accused was kept on active

duty beyond his date of separation and prohibited

from practicing dentistry during the delay, this preju-

dice is counterbalanced by the fact that 98 days of the

delay were caused by delays either specifically or in-

ferentially requested by the accused prior to the set-

ting of a trial date and 42 days were the result of

delays requested by the defense thereafter. It is ob-

vious that one who submits a request for resignation

realizes that it will have to be processed, a procedure

which took some 94 days in this instance. And, again,

I find that a period of 94 days is a reasonable time to

process a resignation. Furthermore, it is persuasive

that the resignation was submitted after the accused’s

date of separation and he was removed from the prac-

tice of dentistry. Accordingly, I find no violation of

the Sixth Amendment.

Under the circumstances of this case then, the motion

of the defense to dismiss all charges and specifications

in accordance with the Rule for Courts-Martial 707 is

denied.

We first note that our disposition in this case is not

necessarily controlled by the earlier decision of this Court

8a

in United States v. O’Brien, 22 U.S.C.M.A. 557, 48

C.M.R. 42. There, the question was whether a request for

administrative discharge in lieu of trial justified delay

under Article 10, UCMJ, 10 U.S.C. § 810 and the decision

of this Court in United States v. Marshall, 22 U.S.C.M.A.

431, 435, 47 C.M.R. 409, 413 (1973). Moreover, that ac-

cused was in pretrial confinement, and his request for ad-

ministrative discharge was finally acted on at the conven-

ing authority level. Here, the question was whether a re-

quest for administrative discharge in lieu of trial is good

cause for delay under R.C.M. 707(c)(8). Also, the accused

was not in pretrial confinement and his request for dis-

charge required processing and action beyond the conven-

ing authority level. See para. 2-3, Air Force Regulation

(AFR) 36-12, Administrative Separation of Commissioned

Officers, Chapter 2, Section D (Oct. 1, 1984).

R.C.M. 707(c)(8) provides that “[aJny other period of

delay for good cause including unusual operational re-

quirements and military exigencies” is excludable from the

120-day period of R.C.M. 707(a). The drafters of this pro-

vision generally stated the exclusions contained in subsec-

tion (c) of this rule are “taken from ABA Standards,”

Speedy Trial, Ҥ 12-2.3 (1978) with modifications to con-

form to military procedure and terminology.” Drafters’

Analysis, Manual, supra at A21-37.

This ABA standard recommends that a residual power

be given to civilian trial judges to deal with unique situa-

tions not covered in the earlier stated exceptions to the

speedy-trial rule. In this light, a request for discharge

processed at the local command level might not be con-

sidered a unique situation because it simply is “another in-

cident of the normal processes of military justice.” See

United States v. O’Brien, supra at 561, 48 C.M.R. at 46.

However, requests required to be processed outside the

9a

command are beyond its control and may impede the dis-

position of the criminal charges at the local level.? E.z.,

United States v. Woods, 26 M.J. 372 (C.M.A.1988). Ac-

cordingly, we hold that where the request for administra-

tive separation must be acted on outside the local com-

mand, and such a requirement results in the dis-

continuation of criminal prosecution without defense pro-

test, good cause for delay exists within the meaning of

R.C.M. 707(c)(8).

The record in this case reflects the fact that the accused’s

request for administrative separation was processed by the

general court-martial authority along with the criminal

charges until August 29, 1986. He then denied this request

and forwarded it to the Secretary’s office. No further steps

were taken by the command in the prosecution of this

case, and none was requested by the accused. Para. 2-22,

AFR 36-12. The parties next stipulated that this resigna-

tion request was denied by the Secretary of the Air Force

on October 17, 1986. Absent any allegation or showing of

government foot-dragging, we find this period of approxi-

mately 49 days can be attributed to the defense and its ad-

ministrative request. Accordingly, the amount of delay at-

tributed to the Government is well under the 120-day limit

of R.C.M. 707(a), and we affirm the well-considered deci-

sion of the military judge.

? We note that paragraph 2-22, AFR 36-12, Chapter 2, Section D,

specifically provides:

2-22. Trial Pending Action on Application. If formal charges

have been preferred prior to final decision on a tender of resigna-

tion under table 2-8, the trial ordinarily should be postponed

pending final action on the resignation. If, for any reason, it is

determined that trial should proceed before notification of final

action, obtain prior authorization from HQ USAF/JAJM, 1900

Half Street, S.W., Washington DC 20324. Direct communication

by the quickest means is authorized.

10a

The decision of the United States Air Force Court of

Military Review is reversed. The record of trial is returned

to the Judge Advocate General of the Air Force for sub-

mission to that court for further action under Article 66,

UCMJ, 10 U.S.C. § 866.

Chief Judge EVERETT and Judge COX concur.

lla

APPENDIX B

UNITED STATES AIR FORCE

COURT OF MILITARY REVIEW

ACM 25839

UNITED STATES

V.

CAPTAIN Nicky M. HIGGINS, 461-06-7574 FV

UNITED STATES AIR FORCE

4 June 1987

Sentence adjudged 9 December 1986 by GCM convened at

Goodfellow Air Force Base, Texas. Military Judge: MARK

S. ANDERSON.

Approved sentence: Dismissal and forfeiture of all pay

and allowances.

Appellate Counsel for the Appellant: Colonel Leo L. Sergi

and Major Timothy J. Malloy.

Appellate Counsel for the United States: Colonel Joe R.

Lamport, Lieutenant Colonel Robert E. Giovagnoni and

Major David r. Barton.

Before

ForAy, MICHALSKI and MURDOCK

Appellate Military Judges

12a

DECISION

FORAY, Senior Judge:

At his trial by general court-martial, with members, the

accused was found guilty, pursuant to his pleas, of two of-

fenses of willfully disobeying a command of a superior

commissioned officer and one offense of larceny of

Meperidine, a controlled substance in violation of Articles

90 and 121, U.C.M.J. The approved sentence extends to a

dismissal and forfeiture of all pay and allowances.

At his trial, immediately after the arraignment, ap-

pellant unsuccessfully moved to have all the charges

against him dismissed by the military judge for lack of a

speedy trial guaranteed him pursuant to the provisions of

R.C.M. 707. In his sole assignment of error, appellant

asks this Court to review the correctness of the military

judge’s ruling denying that motion.

At the trial, the pafties stipulated to the facts regarding

the chronology of events relevant to appellant’s motion to

dismiss. The parties agreed that a total of 187 days elapsed

from the date the charges were preferred against the ap-

pellant until the date the court-martial convened to try the

charges. They also agreed that the appellant had expressly

submitted four requests for delays during the period in

question which totalled 49 days. Forty two days of the

delay requested by appellant occurred after the initial trial

date had been established. That initial trial date was the

138th day after charges had been preferred.' The appellant

contends that those 138 days of delay in the processing of

the case are chargeable to the Government, therefore,

dismissal of the charges against him is mandated by

' The seven days of delay previously expressly requested by ap-

pellant have been deducted in computing the period of time (138 days)

which had expired since charges had been preferred.

l3a

R.C.M. 707(e). The Government’s position is that since

appellant tendered his resignation for the good of the serv-

ice because of the conduct which rendered him triable by

court-martial,? the 98 days which elapsed from the date

the tender was submitted until the date the Secretary of the

Air Force declined to accept the tender was a delay

chargeable to appellant. It contends that this 98 day period

of time should be excluded from its accountability when

determining whether the appellant was brought to trial

within 120 days after charges were preferred against him

as required by R.C.M. 707(a). As it did at trial, the

Government again contends that this period is excludable

as a delay in the proceeding resulting from the request or

consent of the defense allowable under R.C.M. 707(c)(3)

or, in the alternative, was period of delay for good cause

shown allowable under R.C.M. 707(c)(8). If the Govern-

ment’s position in this regard is correct, this period of

delay, coupled with the other periods of delay expressly re-

quested by the appellant, would result in the Government

being accountable for only 43 days of delay for speedy

trial purposes pursuant to R.C.M. 707(a).

At trial, the military judge adopted the facts as to the

chronology of events stipulated to by the parties when rul-

ing on the appellant’s motion to dismiss. Among the

numerous findings made by the military judge, one was

that the appellant had expressly requested delays in the

court-martial proceedings totalling 49 days. He also found

that this period and the period of 98 days? that it took to

? Air Force Regulation 36-12 (1 October 1984), Administrative

Separation of Commissioned Officers, Chapter 2, Section D.

> Twenty-seven days subsequent to submitting his tender of resigna-

tion, appellant specifically requested a delay in the proceedings of

four days.

l4a

process appellant’s tender of resignation for the good of

the service to be excludable from Government account-

ability for speedy trial purposes as delays requested or

consented to by the defense under R.C.M. 707(c)(3), even

though “not affirmatively expressed” by the appellant.‘

Alternatively, the military judge held that if the period of

delay occasioned by the processing of appellant’s resigna-

tion tender was not excludable under R.C.M. 707(c)(3), it

would be an excludable delay for good cause authorized

pursuant to R.C.M. 707(c)(8).

The question before us for resolution in this case was

before us in United States v. Miniclier, 23 M.J. 843

(A.F.C.M.R. 1987). In Miniclier, a general court-martial

was convened in the accused’s officer’s case 162 days after

the charges against him had been preferred. Immediately

after the arraignment, the accused successfully moved for

dismissal of all charges against him alleging that he had

not been brought to trial within 120 days from the date of

the preferral of charges against him as guaranteed him

pursuant to R.C.M. 707(a). As was done at the trial in the

case before us, the prosecution in Miniclier, argued in op-

position to the motion to dismiss that the 140 days taken

to process the accused’s unsuccessful tender of a resigna-

tion for the good of the service was either a delay at the re-

quest or with the consent of the accused under R.C.M.

707(c)(3) or a delay for good cause under R.C.M.

707(c)(8). The prosecution then argued that, as a result of

either allowable time period exclusion, the accused had

been brought to trial within 120 days as required by

R.C.M. 707(a) and, therefor, the accused’s motion to

dismiss should be denied. The military judge found,

however, that the accused did not, either expressly or im-

+ A continuance may be granted only by the military judge. Article

40, U.C.M.J., R.C.M. 906(b)(1).

lSa

pliedly, request or consent to any delay by tendering his

resignation under R.C.M. 707(c)(3) and that “the process-

ing of a request for separation in lieu of trial is not an ex-

traordinary circumstance envisioned by R.C.M.

707(c)(8)”. Accordingly, the military judge granted the ac-

cused’s motion to dismiss all the charges against the ac-

cused and ordered them dismissed. The Government then

appealed the ruling of the military judge in a timely man-

ner in accordance with Article 62, U.C.M.J., and R.C.M.

908.

In Miniclier, this Court held that the accused’s tender of

resignation for the good of the service was neither an ex-

pressed or implied consent to or a request for a delay

under R.C.M. 707(c)(3) nor did it generate a delay for

good cause resulting from unusual circumstances under

R.C.M. 707(c)(8). We upheld the military judge’s ruling

granting the accused’s motion to dismiss the charges for

lack of a speedy trial under R.C.M. 707 and dismissing the

charges. The Government’s appeal from that ruling was

then denied by this Court. In support of our decision we

cited United States v. Burris, 21 M.J. 140 (C.M.A. 1985);

United States v. O’Brien, 22 22 U.S.C.M.A. 557, 48

C.M.R. 42 (1973); United States vy. Harris, 20 M.J. 795

(N.M.C.M.R. 1985); United States v. Kuelker, 20 M.J.

715 (N.M.C.M.R. 1985); and United States v. Fernandez,

48 C.M.R. 460 (N.C.M.R. 1974).

The relevant time periods in the case before us are

substantially similar to those which were before us in

Miniclier. One aspect of the chronology of events perti-

nent to the issue before us in this case which was not

before us in Miniclier, is that, here, on the 145th day? after

charges had been preferred and when the Government was

> Seven days of delay within this time period were chargeable to ap-

pellant pursuant to R.C.M. 707(c)(3).

- l6a

first ready to proceed with its case, the appellant, through

counsel, requested a delay in the trial of 22. days which was

granted by the military judge. A second request for a delay

of 20 more days was submitted by appellant’s counsel and

again granted by the military judge. This additional aspect

in the case before us does not, however, give us pause. It is

clear that the Government simply was not ready to bring

appellant to trial within 120 days from the date charges

were preferred against him as mandated by R.C.M.

707(a). Delays in the docketing of courts-martial are

generally attributable to the Government. When an ac-

cused moves to dismiss charges against him or her for lack

of a speedy trial, the Government has the burden of per-

suasion to justify why the case was not brought to trial

within 120 days. Here, the Government failed to sustain

that burden. The record of trial clearly shows it was un-

prepared to bring the appellant to trial within 120 days,

and nothing had been done by appellant to adversely af-

fect the Government’s ability to prepare and be ready for

trial within the time allowed —appellant’s subsequent re-

quests for delay notwithstanding. United States v. Burris,

21 M.J. 140 (C.M.A. 1985); United States v. Cole, 3 M.J.

220 (C.M.A. 1977); United States v. Miniclier, supra. See

United States v. Wolzok, 1 M.J. 125 (C.M.A. 1975).

For the reasons stated in Miniclier, we find that the

military judge in the case before us erred to the substantial

prejudice of the appellant when he found that the delay

resulting from the processing of appellant’s tender of

resignation for the good of the service was either a delay

requested or consented to by appellant under R.C.M.

707(c)(3) or was a delay occasioned for good cause under

R.C.M. 707(c)(8). Accordingly, the military judge’s deci-

sion denying the appellant’s motion to dismiss the charges

17a

against him for lack of a speedy trial is reversed. The find-

ings of guilty and the sentence are set aside and the charges

are dismissed.

Judges MICHALSK!I and MURDOCK concur.

OFFICIAL:

PAMELA HOWARD _

PAMELA HOWARD

Capiain, USAF

Chief Commissioner