Opposition Brief — Grom v. United States

Supreme Court, U.S,

FILED

FEB Zi 1998

JOSEPH F. SPANIOL, JR.

No. 85-119%

Inu the Supreme Court of the United|Stater™

OcTOBER TERM, 1985

GEORGE F. GROM, PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF MILITARY APPEALS

BRIEF FOR THE UNITED STATES IN OPPOSITION

CHARLES FRIED

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

CARL H. Horst

Captain, JAGC, U.S. Navy

FRANK F. KRIDER

Captain, U.S. Marine Corps

WALTER A. DURLING

Lieutenant, JAGC, U.S. Naval Reserve

Appellate Government Counsel

Appellate Government Division

Navy- Marine Corps Appellate Review Activity

Office of the Judge Advocate General of the Navy

Washington, D.C. 20374

QUESTION PRESENTED

Whether petitioner was denied his Sixth Amendment

right to a speedy trial under Barker v. Wingo, 407 U.S. 514

(1972).

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TABLE OF CONTENTS

Page

ae l

ee tay bs yy 6 04 4 <06s sss ees i

ere ead ase wyccecebecncsceses l

Argument ..... 2 SA ee 3

IEG TS Pr en 6

TABLE OF AUTHORITIES

Cases:

Barker v. Wingo, 407 U.S. 514 ............ 3, 4,5

Middendorf v. Henry, 425 U.S. 25 ............. 5

United States v. Baumgarten, 517 F.2d 1020,

9: Se 4

United States v. Fairchild, 526 F.2d 185,

ee I MED OIL, SIRE nbc cccccccccncccee 4

United States v. Lewis, 759 F.2d 1316,

cert. denied, No. 85-69 (Nov. 18, 1985) ........ 4

United States v. Loud Hawk, No. 84-1361

ee thks kbs kere b ae ese we 3,4

United States v. MacDonald, 456 U.S. 1 ....... 4

United States v. Otero- Hernandez,

rs diane sees ereesas eeeseens 4

Constitution and statutes:

Ce , Se 3,2

Speedy Trial Act, 18 U.S.C. 3161 et seg. ........ 3

(Ili)

IV

Page

Constitution and statutes—Continued:

Uniform Code of Military Justice, 10 U.S.C.

801 et seq. :

at Fi Oe as A hen eb eaaiwisrevcens 2

me OS ee re Pee re sy l

Be es EE ea bbe eawacenseses hoes kes I

Miscellaneous:

Manual for Courts- Martial, United States 1984,

49 Fed. Reg. (1984):

Inu the Supreme Court of the United States

OcTOBER TERM, 1985

No. 85-1198

GEORGE F. GROM, PETITIONER

Vz.

UNITED STATES OF AMERICA

ON PETITION FORA WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF MILITARY APPEALS

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the United States Court of Military

Appeals (Pet. App. la-10a) is reported at 21 M.J. 53. The

opinion of the United States Navy-Marine Corps Court of

Military Review (Pet. App. 1 1!a-12a) is unreported.

JURISDICTION

The judgment of the United States Court of Military

Appeals was entered on November 18, 1985. The petition

for a writ of certiorari was filed on January 16, 1986. The

jurisdiction of this Court is invoked under 28 U.S.C.

(Supp. I) 1259(3).

STATEMENT

Foliowing a special court-martial, petitioner, a member

of the United States Marine Corps on active duty, was

convicted of possession of marijuana with intent to distrib-

ute, in violation of 21 U.S.C. 841(a)(!1) and Article 134 of

the Uniform Code of Military Justice, 10 U.S.C. 934. He

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2

was sentenced to a bad conduct discharge, confinement at

hard labor for 60 days, and reduction to pay grade E-1. The

convening and supervisory authorities approved the sen-

tence without change. The Navy-Marine Corps Court of

Military Review affirmed (Pet. App. Ila-12c) and, on

further review, the United States Court of Military Appeals

also affirmed (id. at la-10a).

1. The evidence at petitioner’s court-martial, the suffi-

ciency of which is not in dispute, showed that petitioner

possessed a small cache of marijuana and hashish in his

off-base apartment in Emerald Isle, North Carolina. The

drugs were discovered on January 23, 1981, by civilian and

military law enforcement authorities during a search of

petitioner’s apartment conducted pursuant to a warrant

obtained by civilian Deputy Sheriff Galizia. Galizia arrested

petitioner the same day and he was arraigned on state drug

possession charges. The civilian charges were dismissed on

March 25, 1981. Military authorities preferred charges

against petitioner on May 8, 1981. Pet. App. 2a-3a; see Tr.

10, 15-16, 42, 82, 86, 207, 209, 211, 214; Tr. App. Exhs. 9, 11.

The same day that petitioner’s apartment was searched,

three other Marines were apprehended for drug possession

at Marine Corps Air Station, Cherry Point, North Caro-

lina. These servicemen confessed and identified petitioner

as their supplier. Military authorities therefore determined

to secure the convictions of the three Marines and then to

use their immunized testimony in order to convict peti-

tioner of more serious charges of selling, transferring, and

introducing marijuana on the base. During the formal pre-

trial investigation of petitioner’s case,! however, the Marines

unexpectedly recanted their sworn confessions and refused

?Article 32 of ve Uniform Code of Military Justice, 10 U.S.C. 832,

requires completion of a “thorough and impartial investigation” before

a charge or specification may be referred to a general court-martial.

3

to implicate petitioner in any drug transactions. Accord-

ingly, the charges affected by this testimony were dropped,

leaving only the charge arising from the seizure of drugs at

petitioner’s off-base apartment. Following completion of

the pretrial investigation on December 7, 1981, the posses-

sion charge was referred to a special court-martial on

December 18, 1981. At the request of petitioner and his

counsel, the trial date was continued until January 4, 1982.

Pet. App. 2a-Sa; see Tr. 16, 25-26, 44; Tr. App. Exhs. 1, 3-9.

2. The Court of Military Appeals held that the eight-

month period between institution of military charges and

the court-martial did not violate petitioner’s Sixth Amend-

ment right to a speedy trial. Pet. App. la-10a. Applying the

balancing test established by this Court in Barker v.

Wingo, 407 U.S. 514 (1972), the court reasoned that while

the delay in this case was sufficient to trigger a full inquiry

into the relevant factors under Barker, the military’s deci-

sion to postpone trial in order to obtain the testimony of the

three other Marines was a legitimate reason for the delay,

and petitioner did not suffer undue prejudice as a result of

the delay. Pet. App. 7a-10a.

ARGUMENT

Petitioner argues (Pet. 8-14) that the Court of Military

Appeals erred in applying the Barker balancing test. This

factbound contention is plainly without merit and it war-

rants no further review.”

?We note as well that subsequent to petitioner’s court-martial, a rule

modeled after the Speedy Trial Act, 18 U.S.C. 3161 et seqg., became

effective in military proceedings. See Manual for Courts- Martial,

United States, 1984, Rule 707, 49 Fed. Reg. 17152, 17189-17190 (1984).

Like the Act, this rule has “mooted much litigation about the require-

ments of the Speedy Trial Clause.” United States v. Loud Hawk, No.

84-1361 (Jan. 21, 1986), slip op. I n.1.

4

The delay in this case of only eight months—during

which petitioner was neither incarcerated nor required to

post bail—-is scarcely of such magnitude even to require

detailed inquiry into whether it might rise to the level of a

constitutional violation.’ See United States v. Lewis, 759

F.2d 1316, 1350 n.16(8th Cir. 1985), cert. denied, No. 85-69

(Nov. 18, 1985) (seven-month delay not sufficiently prejudi-

cial to trigger further analysis of Barker factors); United

States v. Otero-Hernandez, 743 F.2d 857, 858 n.3 (11th

Cir. 1984) (same). Moreover, the government’s attempt to

secure the testimony of other witnesses who had made

sworn statements implicating petitioner in more serious

offenses was a wholly legitimate reason that justified the

slight delay that did take place. See, e.g., Barker v. Wingo,

407 U.S. at 531; United States v. Fairchild, 526 F.2d 185,

187 (7th Cir. 1975), cert. denied, 425 U.S. 942 (1976); United

States v. Baumgarten, 517 F.2d 1020, 1025 (8th Cir.), cert.

denied, 423 U.S. 878 (1975). Contrary to petitioner’s appar-

ent contention (Pet. 8, 12-13), there was absolutely no show-

ing in this case of “bad faith or dilatory purpose on the

Government’s part.” United States v. Loud Hawk, No.

84-1361 (Jan. 21, 1986), slip op. 13. As the court below

concluded, “[o]nce the witnesses recanted their statements

incriminating[petitioner] * * *, the unsubstantiated charges

were promptly withdrawn, and the remaining charges were

referred to a special court-martial.” Pet. App. 9a; see also

Tr. 14-20, 21-23; Tr. App. Exhs. 1, 9.

3Petitioner’s contention (Pet. 10 n.1) that the period of delay should

be measured from the time that state charges had been instituted is

without merit because petitioner was neither arrested nor charged by

military or other federal authorities at that time. See United States v.

MacDonald, 456 U.S. 1, 10 n.11 (1982) (“Of course, an arrest or

indictment by one sovereign would not cause the speedy trial guarantees

to become engaged as to possible subsequent indictments by another

sovereign.”). Even if he were correct, however, the additional 3 and

one-half months of delay would hardly be sufficient to change the

result.

5

The Court of Military Appeals properly concluded that

petitioner did not suffer siziuificant prejudice from the delay

in light of the absence of pretrial restraints and any impair-

ment to the defense. Pet. App. 9a-10a. Indeed, petitioner

benefited in several important respects fromthe delay: the

most serious charges against him were dropped after the

other Marines recanted their statements; the case was

referred to a special court-martial rather than a general

court-martial, thereby exposing petitioner to a significantly

less severe maximum punishment (see Middendorf v.

Henry, 425 U.S. 25, 31 (1976)); and “{ijf anything, it was the

prosecution’s case that deteriorated” (Pet. App. 10a) during

the delay. Petitioner is obviously incorrect in arguing (Pet.

8, 10-12) that the court below imposed too heavy a burden

of demonstrating prejudice. To the contrary, the Court of

Military Appeals found that the delay in this case was

“ “presumptively prejudicial’ ” (Pet. App. 7a, quoting

Barker, 407 U.S. at 530), and it carefully analyzed petition-

er’s contentions with respect to actual prejudice. Pet. App.

Sa, 9a-10a.4 The court simply concluded that, on balance,

the “minimal” (id. at 10a) prejudice to petitioner was insuf-

ficient, in light of the relatively short and adequately justi-

fied delay, to give rise to a violation of the Sixth Amend-

ment.

‘The delay in this case did not cause petitioner irrevocably to lose

various educational and employment opportunities, as he asserts (Pet.

11). Rather, the delay forced only a postponement of his plans. See Tr.

43. Moreover, petitioner could have continued his college education at

Eastern Carolina University while he was awaiting trial, and he had in

fact rejected the job offers in question primarily because he wished to

pursue his education. See Tr. 42-44, 377. Indeed, petitioner had not

ever ruled out continuing his military career (see Tr. 378), an option

foreclosed not by the delay in this case but by his conviction.

eae aaa aia i,

6

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

CarL H. Horst

Captain, JAGC, U.S. Navy

FRANK F. KRIDER

Captain, U.S. Marine Corps

WALTER A. DURLING

Lieutenant, JAGC, U.S. Naval Reserve

Appellate Government Counsel

FEBRUARY 1986

DO})-1986-02