Petition for Writ of Certiorari — Tippit v. United States (No. 07-318)

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A FIL pur U.S.

07-318 SEP 10 2007

OFFIC

— E OF THE CLERK

en [!

SU tt

IN THE

Supreme Court of the United States

STAFF SERGEANT ROBERT D. TIPPIT,

Petitioner

UNITED STATES OF AMERICA,

Respondent

On Petition for Writ of Certiorart to the

United States Court of Appeals for the Armed Forces

PETITION FOR WRIT OF CERTIORARI

VICKI A. BELLEAU

CAPTAIN. U.S. AIR FORCE

(Counsel of Record

MARK R. STRICKLAND

LT COL.US. AIR FORCE

(Counsel for Petitioner

APPELLATE DEFENSE DIVISION

AIR FORCE LEGAL OPERATIONS AGENCY

112 LUKE AVENCE. Stith 343

BOLLING AFB. DC 20332-8000

(202) 767-1562

September 2007

QUESTIONS PRESENTED

Whether the military judge erred in finding

there was a “De Facto Dismissal” of the charges

against petitioner on 6 November 2001?

Whether the military judge erred in finding that

Petitioner was not denied the right to a speedy

trial under Article 10. UCMJ”

Whether ‘Petitioner = received ineffective

assistance of counsel when his trial defense

counsel did not inform him that” an

unconditional guilty plea waived the speedy trial

issue under Rules for Courts-Martial (R.C.M.)

707?

Whether Petitioner's plea was improvident

where it was entered upon the mistaken belief

that his R.C.M. 707 speedy trial issue would be

preserved for appeal?

TABLE OF CONTENTS

Page

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CONSTITUTIONAL AND STATUTORY

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REASONS FOR GRANTING THE WRIT.......... 1S

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APPENDIX A

Opinion of the United States Court of Appeals for

the Armed Forces. (12 June 2007) ..000000.e.. la

APPENDIX B

Opinion of the United States Air Force Court of

Criminal Appeals (14 July 2006) .......00000............ 32a

TABLE OF AUTHORITIES

Page

Constitutional Provisions

Ue FE cise esica te this ek picirie gp ssipeedide oni passim

Decisions of the Supreme Court of the United

States

Barker v. Wingo, 407 U.S. 514 (1972).. 12.14. 26.29

Brady v. United States, 397 U.S. 742 (1970)....... 36

Kimmelman vy. Morrison, 477 U.S. 365 (1986)....33

AlceMann vy. Richardson. 397 U.S. 759 (1970).......32

Strickland v. Washington. 466 U.S. 668 (1984)...32

Military Court Decisions

l/nited States vy. Britton,

26 M.J. 24 (C.M.A.1988) .00000.0 16. 18. 22

United States v. Dooley.

be ao fae | ees 32

l‘nited States v. Edmond.

ee ee eS re 28

United States v. Gray.

SE OD. WO OE FP is cccecstcenpsadeeconczitmeenes 24

United States v. Higa.

12 WD. FOUR CAL ALE. 1962) 0 cccsicseccressecscoeers 36

United States v. Kossman,

38 W463. 258 CMA: F993) onc ccccccccseee to. 2 ae

United States v. Mickla

29 M.J. 749 (A.F.C.M.R. 1989) .......... joule 19

l'‘nited States v. Mizgala.

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United States v. Peters.

LE ALE, BIS CIE IER. UGB veces cccess.teeen, 36

United States yv. Plants.

Ck RAD. SAT CR, PADRE 5 BOP inccictvinercccestisrateiens 13

United States v. Polk.

SZ WAS. TSO AA, UGG oo acvivesvisesivsciccccscsse cB

United States vy. Robinson.

47 M.J. 506 (N.M.Ct.Crim. App. 1997) ........... 15

l'nited States v. Tippit.

65 M.F. 69 (C.A.A.F 2007)

l-nited States v. Tippit.

ACM 35624 (A.F.Ct. Crim. App. 14 July 2006)

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2 ae

Federal Statutes

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The petitioner, Staff Sergeant Robert D.

Tippit. respectfully prays that a writ of certiorari issue

to review the order and judgment of the United States

Court of Appeals for the Armed Forces entered in his

case on June 12. 2007.

OPINIONS BELOW

The order and judgment of the United States Court

of Appeals for the Armed Forces. United States v.

Tippit. 65 M.J. 69 (C.A.A.F. 2007). is located at

Appendix A. The unpublished opinion of the

United States Air Force Court of Criminal Appeals.

United States v. Tippit. Misc. Dkt. 35624 (A.F. Ct.

Crim. App. 14 July 2006) is located at Appendix B.

JURISDICTION

The judgment of the United States Court of Appeals

for the Armed Forces was entered on June 12. 2007.

The jurisdiction of this Court is invoked under 28

U.S.C. § 1259(3) and 10 U.S.C. § 867a(a).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Sixth Amendment of the United States

Constitution states in relevant parts:

In all criminal prosecutions. the

accused shall enjoy the right to a

speedy and public trial...and to have

the Assistance of Counsel for his

defense.

Article 10. Uniform Code of Military Justice

(UCMJ) Section 836(a) of Title 10. United States

Code [hereinafter Article 10]. provides:

_..When any person subject to this

chapter is placed in arrest’ or

confinement prior to trial, immediate

steps shall be taken to inform him of

the specific wrong of which he ts

accused and to try him or to dismiss

the charges and release him.

STATEMENT OF THE CASE

This case presents the question of whether the

military judge erred in finding there was 1) a “de

facto dismissal” of the charges against Petitioner: 2)

that Petitioner was not denied the right to a speedy

trial under Article 10. UCMJ: 3) he received

effective assistance of counsel: and 4) his plea

was provident. The Air Force Court of Criminal

Appeals affirmed the approved findings and

sentence. The Court of Appeals for the Armed

Forces affirmed the Court of Criminal Appeals’

judgment.

1. Facts

a. Background

On 21 November 2002. Petitioner was arraigned.

From 8-9 January 2003. Petitioner was tried at a

general court-martial at Peterson Air Force Base,

Colorado. Petitioner entered pleas in accordance

with his pre-trial agreement.

b. Charges and Dismissal

Charges were originally preferred against Petitioner

on 6 September 2001. On 10 September 2001. the

charges were “withdrawn” prior to referral and

preferred again later that same day. App. Ex. 1.

para 8. An additional charge was preletred on 10

October 2001. On or about 31 October 2001. the

Air Force Office of Special Investigations (AFOSI)

received search authorization to examine the

contents of Petitioner's home computer. The same

day AFOSI forwarded a request for a forensic

media analysis of the computer to an agent in

Shreveport. LA. App. Ex. XVII. This request

indicated that. “Due to a legal mistake. SUBJECT

was brought onto active duty under the wrong

orders and now his status must be approved by

Secretary of the Air Force (SECAF). The legal

office must now drop all charges and refile...~ App.

Ex. XVI: App. Ex. XVIII. This request was drafted

by Special Agent Darryl! Murphy for the OSI

Detachment Commander's — signature. Agent

Murphy testified that he did not remember who told

him that the charges had to be dropped and re-filed.

R 194-95.

On 2 November 2001. 21 SW/JA forwarded a

recommendation to 21 SW/CC to withdraw the

charges. App. Ex. 1V. This memo stated that:

2... .1 recommend that the charges

be withdrawn at this time.

Information has come to the

attention of the AFOSI through very

reliable sources that significant

weapons related offenses--a joint law

enforcement investigation IS

ongoing--involving the subject and

gun dealers. This conduct puts the

offenses with which SSet Tippet is

charged into proper = context.

Withdrawing the charges now will

not prohibit re-preferral at a later

tume--in approx three months as this

investigation is completed. |

have coordinated this

recommendation with Colonel Moss.

the 302d ARW/CC and 14 AF/JA.

3. Options: Pursuant to the RCM

404. as the special-court martial

convening authority, you may: (1)

Dismiss the charges. (2) Forward the

charges to a subordinate commander

for disposition, (3) Refer charges to a

summary or special court-martial, or

(4) Forward the Article 32 report

with the charges. to the superior

commander. 14 AF/CC. _ for

disposition.

App. Ex. IV.

On 6 November 2001) the convening authority

“withdrew” the charges and specifications. which

had not yet been referred to trial. The legal office

provided Petitioner's area defense counsel with a

copy of the original charge sheet with all of the

charges and specifications lined out and the word

“WITHDRAWAL” written across them. App. Ex.

V. The legal office did not provide Petitioner's area

defense counsel with an explanation for the

“withdrawal.” See App. Ex. XXI. page 3. para. 39.

Petitioner was informed by a Major in the orderly

room that the charges had been “dropped.” and he

was released from active duty and retumed to

Glendale. Arizona. R. at 89. 108. At this point.

Petitioner and his defense attorneys believed that the

case was over and done with and that there would be

no future charges. R. at 109.

On 25 January 2002. Col Richard Moss. 302

AW/CC. requested that the 21st Space Wing Legal

Office take responsibility for prosecution of the

case. and on 30 January 2002. 21 SW/JA started the

process to recall Petitioner to active duty to face

court-martial charges. App. Ex. XXI. page 3. para.

43-44. On 1 February 2002. because the United

States no longer had jurisdiction over Petitioner.

who was a reservist. 21 SW/CC recommended that

Petitioner be recalled to active duty to be

prosecuted. On 5 February 2002. the recall package

was forwarded through the chain of command to

AFLSA/JAJM. On 8 February 2002. 14 AF/CC

requested approval from the SECAF to recall

Petitioner to active duty under Air Force Instruction

51-201. Administration of Military Justice. para

2.8.5. dated 2 November 1999. On 25 February

2002. the Judge Advocate General of the Air Force

approved the recall and forwarded the recall

package to the SECAF. App. Ex. XXX. On 23

May 2002. the SECAF approved the recall, and

on 5 June 2002. 14 AF/CC recalled Petitioner to

active duty. See App. Ex. Il. para. 7-8. Charges

were again preferred against Petitioner on 2 July

2002 and referred on 12 September 2902.

On 19 November 2002. the defense filed a motion

to dismiss for lack of jurisdiction and denial of

Petitioner's right to a speedy trial under Rule for

Courts-Martial (R.C.M.) 707. R. at 17: App. Ex. I.

The defense argued that the speedy trial clock began

to run on 10 September 2001, such that. after taking

applicable delays into account, 353 days had

clapsed between 10 September 2001 and

Petitioner's arraignment on 21 November 2002.

In their motion. the defense argued that because the

i0 September 2001 charges were never referred. the

charges could not have been withdrawn on 6

November 2001. App. Ex. |. para. 6. Instead. the

only way to dispose of the charges would have been

to dismiss them. R. 119-20: App. Ex. Il, para. 7.

Accordingly. the defense argued that the charges

preferred against Petitioner on 10 September 200]

and 10 October 2001 were never dismissed. such

that the speedy trial clock continued to run from 10

September 2001 until 21 November 2002. The

defense argued that out of the 437 davs that passed

trom 10 September 2001 until 21 November 2002.

only 83 days should be excluded. leaving a total

of 353 days tor speedy trial purposes. See App. Ex.

The government claimed that the charges were

“withdrawn and dismissed” on 6 November 2001.

and. therefore. the speedy trial clock stopped at that

ume. App. Ex. Il, paras. 6. and 20. The

government further argued that the speedy trial

clock started over when Petitioner was returned to

active duty on 7 June 2002. App. Ex. Il. paras. 24.

43. Thus. the government argued that, in light of

the days that were excluded. only 107 davs passed

for speedy trial purposes. App. Ex. Il. para. 21. 24.

The defense countered that the government also did

not have a valid reason to “dismiss the charges. R.

119-25. The government's initial reason for

“withdrawing” the charges was because there was

supposedly an ongoing joint investigation with

several federal agencies. Indeed. the Staff Judge

Advocate (SJA) asserted in his 2 November 2001

memorandum to 21 SW/CC that the charges needed

to be “withdrawn” because “[i]nformation has come

to the attention of the AFOSI through very reliable

sources that significant weapons related offenses--a

joint law enforcement investigation is ongoing.”

App. Ex. IV. However. the defense argued this was

merely a subterfuge because. as Special Agents

Mowry and Murphy testified, a “joint

investigation” between the AFOSI and the Federal

Bureau of Investigation (FBI) or. for that matter.

any other federal agency never existed. R. at 174,

199-200, 205. Instead. there was simply “a level of

cooperation” between the AFOSI, the FBI, and the

Bureau of Alcohol, Tobacco and Firearms (ATF)

where they shared information about Petitioner's

case. R. at 174-75, 206.

The defense further argued that the government's

real reason for attempting to “withdraw” the

charges on 6 November 2001 was because the legal

office realized that they did not get the required

approval from the SECAF needed to ask that

Petitioner receive a sentence that included

confinement. R. at 123-24. The deferise argued

that. after the legal office realized their mistake.

they purportedly “withdrew” the charges and then

recalled Petitioner months later after getting proper

SECAF approval. R. at 124-25. Thus. the defense

argued that even if the government had actually

dismissed the charges. they did not have a valid

reason for doing so.

The military judge denied the defense motion.

finding that “it was obvious .. . that the SJA meant

to recommend the charges be dismissed.” (R. at

245-49: App. Ex. XXI. page 8). and finding a “de

facto dismissal of the charges against _ the

accused on or about 6 November 2001.” App. Ex.

XXI. page 11. The judge further found that “the

dismissal of charges on 6 November 2001 was done

for a legitimate reason.” R. at 246. The military

judge stated that:

The charges had been preferred

against the accused on 10 September

2001. The AFOSI Det/CC testified

that the 10 September 2001 preferral

took place while the investigation

was “on-going.” and that he updated

the SJA with regard to this case on a

regular basis. SA Murphy testified

that he updated the Det/CC on a

weekly __ basis. During tne

investigation. the AFOSI was not

involved im a_ formal — joint

investigation with the FBI and/or

ATF. but they were providing

information they thought could be

relevant to the other agencies’

investigations. . . . Based on the

references made by the SJA in his

letter to the SPCM_ Convening

Authority. he believed the AFOSI.

FBI. and ATF were jointly working

the investigation into the accused's

actions. Again, he failed to

recognize the signiftcance of the

term “joint federal law enforcement

investigation. ©

What is evident from the SJA‘s letter

is that since charges were preferred

on 10 September 2001. the AFOSI

investigation had disclosed

additional criminal behavior on the

part of the accused. An additional

charge was preferred on 9 [sic]

October 2001. Additional updates

were received by the SJA_ from

AFOSI. At some point. the SJA

recognized the preferral on 10

September 2001 had been premature.

He then made the recommendation

to dismiss the charges. with an eve

toward re-preferral. When the

investigation was completed. and the

serious nature of the offenses could

be properly reflected. This ts

appropriate under RCM 401(c\(1).

App. Ex. XXI. page 8.

The military judge further found that the speeds

trial clock started on 7 June 2002 when Petitioner

was returned to active duty and that. after

taking into account all applicable delays. only 104

davs had elapsed for purposes of speedy trial. R. at

246-47. Accordingly. the military judge found no

violation of R.C.M. 707. The military judge

likewise found no violation of the Sixth

Amendment or Article 10. UCMJ. noting.

In the event it’s later determined that

my findings as to when the speedy

trial clock started was erroneous and

that the speedy trial clock began

ticking when charges were preferred

on 10 September 2001. or if it's

determined that an Article 10

violation or a 6" Amendment

violation occurred. | note that | did

consider the facts that must be

balanced against any prejudice to

you pursuant to case law concerning

Article 10 of the Uniform Code of

Military Justice. types of violations.

and 6° Amendment speedy trial

violations: specifically those set forth

in the case of Barker v. Wingo.

which is a Supreme Court case from

1972. Barker requires that the

following factors be subjected to a

balancing test: The amount of time

or the length of delay it took the

Government to get the case to trial.

reasons for delaying the trial date.

whether or not the accused—you in

this case—asserted your right to a

speedy trial, and the prejudice to an

accused caused by any delays.

When determining the prejudice to

an accused. additional facts must

also be considered. as set forth in the

case of LS. v. Plants. 62 M.J. 397

(C.A.A.F. 2005) and that’s an Aur

Force case from 2002. The factors to

consider in determining — what

interests of an accused the speedy

trial right was designed to protect

include the need. number one. to

prevent oppressive pretrial

incarceration; number two. to

minimize the anxiety and concern of

an accused; and number three. to

limtt the possibility that the defense

would be impaired The most

serious ts the last. and this is stated

very clearly in the Plants case.

because of the inability of an accused

to adequately prepare his case skews

the fairness of the entire system.

Now taking all these factors into

account. | would not have been

able to find such — significant

prejudice to vou that would have

caused me to dismiss the case with

prejudice. Therefore. the defense

motion to dismiss based on a

violation of your right to a speedy

trial. under those three different

rules. is denied.

R. at 247-49. The military judge further explained

that in considering the Barker v. Wingo tactors, the

length of delay he considered was the time it took

the government to get the case re-preferred after 6

November 2001. He stated that this amount of time

was not unreasonable. that the reason for the delay

Was appropriate because new matters came to the

attention of the AFOSI. and that the Petitioner was

not prejudiced by the delay. App. Ex. XX. pgs 9-10.

2. Proceedings Below

The Air Force Court of Criminal Appeals ruled that

the government had not denied the Petitioner's right

to a speedy trial and that there was a “de facto

dismissal” of the tharges dismissed for a proper

purpose. The Air Force Court also ruled that

Petitioner was not denied effective assistance of

counsel and his rights to a speedy trial under Article

10. UCMJ and the Sixth Amendment were not

violated. The Court of Appeals for the Armed

Forces affirmed the Court of Criminal Appeals’

ruling.

REASONS FOR GRANTING THE WRIT

In its decision below, the United States Court of

Appeals for the Armed Forces incorrectly

concluded that Petitioner's speedy trial rights under

Article 10. UCMJ. R.C.M. 707. and the Sixth

Amendment were not violated. Furthermore, the

lower court incorrectly concluded that Petitioner

received effective assistance of counsel and his

pleas were provident.

|. Dismissal and Speedy Trial

The original charges were “withdrawn” four days

after they were preferred There was no evidence

that the convening authority concurred. or was even

informed of the original charges. The original

charges on 6 September 2001 started the speedy

trial countdown. The convening authority

purported to withdraw the unreferred 10 September

2001 charges against Petitioner on 6 November

2001. However. this action was invalid and “could

not, as a matter of law. amount to a withdrawal of

charges because there had not vet been referral of

those charges to a court- martial.” United States

v. Robinson. 47 M.J. 506, 509 (N.M. Ct. Crim. App.

1997).

Even if there had been a proper withdrawal. the

withdrawal of charges does not stop or reset the

R.C.M. 707 speedy trial clock. United States v.

Britton, 26 M.J. 24.26 (C.M.A. 1988). Thus. the

government had to argue that the charges were

“dismissed” on 6 November 2001. Otherwise. the

speedy trial clock would have continued running

from. 6 September 2001] until 21 November 2002.

minus any applicable exclusions. and __ this

inordinately lengthy period of time would

undoubtedly have resulted in a dismissal of all

charges and specifications under R.C.M. 707.

The military judge found that “it was obvious .. .

that the SJA meant to recommend the charges be

dismissed.” R. at 245-49, App. Ex. XXI. page 8.

and that there was a “de facto dismissal of the

charges against the accused on or about 6

November 2001.” App. Ex. XXI. page I]. This

finding was erroneous for several reasons. First. the

SJA’s 2 November 2001 memorandum to the

convening authority § clearly stated that the

government intended to withdraw the charges rather

than dismiss them. In that memorandum. entitled.

“Recommendation to Withdraw Charges.” the SJA

Stated. “I recommend that the charges be

withdrawn at this time... . Withdrawing the

charges now will not prohibit re-preferral at a later

lime—in approx three months as this investigation

is completed.” App. Ex. IV. para. 2. The closing

paragraph recommends that the convening authority

“authroize [sic] the SJA to withdraw the charges by

lining through the charge sheet.” App. Ex. IV, para.

4 (emphasis added). Then. the original charges and

specifications were in fact lined through and the

word “WITHDRAWAL” was written across them.

App. Ex. V (emphasis added).

Similarly, in their motion at trial, the government

repeatedly asserted that no dismissal had occurred.

For example. in paragraph 16 of their response to

the defense motion. the government _ stated.

“Defense asserts an improper dismissal of charges.

However, under the direction of the convening

authority. the charges and specifications were

withdrawn. App. Ex. Il. para. [8 (emphasis

added). Additionally, in paragraph 21. they stated

that the “SPCMCA _.. withdrew the charges.”

(emphasis added). Then. throughout their motion.

they repeatedly contended that the charges were

“withdrawn and dismissed” on 6 November 2001.

(“on 6 November 2001. the convening authority

withdrew and dismissed the charges and

specifications prior to referral”). (“On 5 November

2001. the convening authority § directed the

withdrawal and dismissal of the charges . . . the

government withdrew and dismissed the charges

against the accused... the very same dav’):

(“There was a significant break in time between

when the charges were withdrawn and dismissed

and when the accused was recalled to active duty”)

(emphasis added). Even at trial. they continued to

argue “pre-referral withdrawal equals a dismissal.”

R. 236.

The fact that the government argued the charges

were both withdrawn and dismissed docs not

convert an improper withdrawal into a_ proper

dismissal. United States v. Britton. 26 M.J. 24. 26

(C.M.A. 1988). explained that there are “substantial

differences” between withdrawal and dismissal of

charges. Specifically. the court explained that

dismissal:

. contemplate|s] that the accused

no longer faces charges. that

conditions on liberty and pretrial

restraint are lifted. and that he its

returned to full-time duty with full

rights as accorded to all other

servicemembers. Reinstitution of

charges requires the command to

start over. The charges must be re-

preferred. investigated. and reterred

in accordance with the Rules

for Courts-Martial. as though there

were no previcus charges or

proceedings.

26 M.J. at 26. Conversely. the court explained that.

.. additional affirmative action will be taken by

the convening authority after he

withdraws charges.” See also United States vy.

Mickla. 29 M.J. 749, 751 (A.F.C.M.R. 1989)

(“Dismissal is thus an appropriate step when no

further action against the accused is contemplated.”)

In this case, it 1s clear that the charges were not

“dismissed” because Petitioner continued to face

charges. Indeed. the SJA stated in his 2 November

2001 memorandum that “[w]ithdrawing the charges

now will not prohibit re-preterral at a later time—in

approx three months as this investigation is

completed.” App. Ex. lV. Thus. at the time of the

purported withdrawal. the government was fully

aware that Petitioner still faced charges and planned

to court-martial him in the near future.

In United States yv. Mickla. 29 MJ. 749. 751

(A.F.C.M.R. 1989). the Air Force Court faced the

same situation present here. In Afickla. the Air

Force Court held that a purported dismissal of

charges did not halt the running of the speedy trial

clock where the government dismissed

the charges with the intention of continuing to trial

on the same charges. The Air Force Court

explained. “{a]pplicable Rules for Court-Martial

contemplate that charges are properly dismissed

when they fail to state an offense. when

unsupported by available evidence. or when other

sound reasons exist why trial by court-martial is

inappropriate. See Discussion, R.C.M. 401(c)(1).

Here. no such satisfactory reason exists.” 29 M.J.

752. The lower court further explained that:

The Government cannot have its

military justice cake and eat it too.

Hlere. it 1s patent that the convening

authority never intended anything

but a court-martial. Therefore. the

concept of “dismissal” -- with its

concomitant stopping of the sand in

the speedy trial hourglass -- 1s

inappropriate. Instead of a valid

dismissal, the authorities . . . likely

fabricated cither a withdrawal or

what the Navy-Marine Court of

Military Review recently labeled

[/sic] as “more of an attempt to create

a ‘limbo’ status for these charges”

until such time as they could be

pertected. See lLnited States vy.

Mucthison, 28 MJ. 1113. L115

(N.M.C.M.R. 1989). In either event.

“freezing” the situation until one can

get around to it is incompatible with

R.C.M. speedy trial rules.

29 M.J. at 751.

No satisfactory reason to dismiss the charges

existed. The reason given by the SJA for the

purported withdrawal/dismissal of charges was that

there was an ongoing “joint investigation.” R. at

115, = 120-23. However, as the defense

demonstrated, this was not the case. R. at 120-23.

174, 199-200. 205. Indeed. even the military judge

found that ~. . . formal joint investigation did not

exist between the AFOSI and either the FBI or the

ATF with regard to this case....” App. Ex. XXI.

para. 31.

The defense argued that the real reason the

government attempted to “withdraw” the charges

was because the government had not secured the

proper approval necessary to ask for confinement

for a reservist. R. at 136-37. Support is shown for

this argument in the fact that the OS] Detachment

Commander noted in the request for media analvsis

that. “Due to a legal mistake. SUBJECT was

brought onto active duty under the wrong orders

and now his status must be approved by

Secretary of the Air Force (SFECAF). The legal

office must now drop all charges and refile. . . ~~

App. Ex. XVI. para. 2: App. Ex. XVIII. para 2. The

government denied this was the reason and claimed

the charges were “withdrawn and dismissed”

because AFOSI was still investigating further

misconduct involving Petitioner. The military

judge likewise found that the reason the charges

were “dismissed was because:

...Since charges were preferred on 10)

September 2001. the AFOSI

investigation had disclosed

additional criminal behavior on the

part of the accused. An additional

charge was preferred on 9 October

2001. Additional updates were

received by the SJA trom AFOSI.

At some point. the SJA recognized

the preferral on 10 September had

been premature. He then made the

recommendation to dismiss the

charges. with an eye toward re-

preferral when the investigation was

completed. and the serious nature of

the offenses could be properly

reflected.

App. Ex. XXI._ page 8.

These reasons do not negate that the invalid

withdrawal was still not a valid dismissal. In

Britton, the Court of Military Appeals explained.

“when there is truly an effective dismissal of

charges, all conditions or constraints on liberty are

removed, charges are no longer pending. all pretrial

restraint 1s lifted, the accused is returned to full

duty. and the accused is provided with all rights and

privileges of other uncharged servicemembers.” 26

M.J. at 26. In this case, Petitioner was an Air Force

reservist and was not in a position to simply be

returned to active duty with all rights and privileges.

However. it is important to note that Petitioner's

reserve orders were not continued after the

purported withdrawal, nor did he ever participate in

any of his unit's training after the charges were

preferred on 10 September 2001. See App. Ex. IIL.

Thus. in the “context of a reservist. he was never

returned to full time duty status.” /d. Furthermore.

it is clear that the government never intended to

dismiss the charges because, as the SJA’s 21

November 2001 memorandum makes clear. they

always intended to prosecute Petitioner. App. Ex.

IV. Accordingly, the military judge erred when he

determined that the convening authority actually

“dismissed” the preferred charges on 6 November

2001.

The dissent in the Air Force court's decision

addresses the “withdrawal” of the original charges.

United States v. Tippit. ACM 35624. 11 (A.F. Ct

Crim. App. 14 July 2006). The dissent points out

that there was no evidence that the convening

authority concurred with Capt D's withdrawal of

the original charges. /d. Without the convening

authority s concurrence. the withdrawal was not

proper and was an error. Furthermore, the second

Article 32. essentially a carbon copy of the first.

relied on the evidence from the first Article 32 and

cited the conclusions of the first investigating

officer. Clearly. the government's actions were not

consistent with an intent to dismiss charges. to

include a new preferral. new investigation. and

referral. The command was not required to start

over. They simply picked up from where they

“withdrew” the charges. There was no “de facto

dismissal” or any other proper dismissal of the

charges.

Unmistakably. the preterral of the original charges

started the speedy trial clock. R-C.M. 707(a). See

also. United States v. Gray. 26 M.J. 16. 20 (C.M.A.

1988). The speedy trial clock ran from 6 September

2001 until 21 November 2002. minus the applicable

exclusions. such that 357 days passed for purposes

of speedy trial. See App. Exs. | and VI. The

military judge erred in finding that there was a “de

facto” dismissal and further erred when he

found a legitimate reason existed for a dismissal.

Article 10. UCMJ. requires that, “[w]hen any person

subject to this chapter 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.” A litigated speedy trial

motion under Article 10, UCMJ is not waived by a

subsequent unconditional guilty plea. United States

v. Mizgala, 61 M.J. 122, 127 (C.A.A.F. 2005). In

United States v. Kossman. 38 M.J. 258. 261

(C.M.A. 1993), the predecessor to the Court of

Appeals for the Armed Forces held that:

[w]e happen to think that 3 months 1s

a long time to languish in a brig

awaiting an opportunity to confront

one's accusers, and we _ think

Congress thought so too. four

months is even longer. We see

nothing in Article 10 that suggests

that speedy-trial motions could not

succeed where a period under 90- or

120-days is involved. At the same

time. we recognize that there are

many circumstances that justify even

longer periods of delay. However.

where it is established _ that

the Government could readily have

gone to trial much sooner than some

arbitrarily selected time demarcation

but negligently or spitefully chose

not to. we think an Article 10 motion

would lie.

In determining whether the facts of a given case

constitute “reasonable diligence” under Article 10.

the Court of Appeals for the Armed Forces has

asserted that the four factors relevant to a Sixth

Amendment speedy trial analysis — length of delay.

reasons tor delay. whether the accused requested a

speedy trial. and prejudice to the accused - are an

“apt structure” for the analvsis. L/nited States v.

Mizgala. 61 M.J. at 127-29 (citing Barker v. Wingo.

407 U.S. 314. 530 (1972)).

In Barker. this Court offered guidelines for

analyzing the speedy trial factors. This Court noted

that whether a delay of a given length of time ts

inappropriate is “necessarily dependent upon the

peculiar circumstances of the case.” Barker. 407

U.S. at 330-31. As an example. this Court indicated

that “the delay that can be tolerated for an ordinary

street crime is considerably less than for a serious.

complex conspiracy charge.” /d. at 531.

When evaluating the “reason the government

assigns to justify the delay.” this Court opined that

“different weights should be given to different

reasons.” Specifically. a

... deliberate attempt to delay the trial

in order to hamper the defense

should be weighed heavily against

the government. A more neutral

reason such as negligence’ or

overcrowded courts should be

weighed less heavily vul

nevertheless should be considered

since the ultimate responsibility for

such circumstances must rest with

the government. rather than with the

defendant. Finally, a valid reason,

such as a missing witness. should

serve to justify appropriate delay.

/d. This Court noted that the “defendant's assertion

of his speedy trial right...is entitled to strong

evidentiary weight in determining whether the

defendant is being deprived of that right.” /d. at

531-32. Finally. this Court identified three interests

leading to prejudice to a defendant. This Court

concluded that it regarded “none of the four factors

identified above as cither a necessary or sufficient

condition to the finding of a deprivation of the right

of speedy trial”. consequently. the courts “must still

engage in a difficult and sensitive balancing

process. /d. at 533.

The government violates Article 10. UCMJ. and the

Sixth Amendment when the record demonstrates

that the government could have proceeded to trial

much sooner. but “negligently or spitefully” failed

to do so. United States v. Kossman. 38 M.J. 258.

261 (C.M.A. 1993). Article 10. UCMJ. requires the

government to act with “reasonable diligence” to

bring a confined accused to trial. /d. at 262. See

also United States v. Edmond. 41 M.J. 419. 421

(C.A.A.F. 1995). Moreover. Article 10 “imposes a

more stringent speedy trial standard than that of the

Sixth Amendment.” Aossman. 38 M.J. at 259

(citing U/nited States v. Burton. 44 C.M.R. 166. 172

(C.M.A. 1971)).

In the present case. the defense primarily argued

that Petitioner's right to a speedy trial under R-C.M.

707 was violated. However. the government.

defense. and military judge all discussed

Petitioner's speedy trial rights under the Sixth

Amendment and Article 10. UCMJ. as well. In fact.

the military judges findings address all three

speedy trial rules. finding no violation under

R.C.M. 707. Article 10. UCMJ. or the Sixth

Amendment. R. 248-49: App. Ex. XX. pages 9-10.

The military judge erred when he _ found _ that

Petitioner's right to a speedy trial under Article 10.

UCMJ, and the Sixth Amendment were not

violated. The “touchstone” of an Article 10

analysis is whether the government acted with

“reasonable diligence” in bringing a _ confined

accused to trial, Kossman, 38 M.J. at 262. and the

four Barker v. Wingo factors are instructive on

determining whether the government has met its

burden of proceeding with “reasonable diligence.”

Birge, 52 M.J. at 212. Analyzing the facts of this

case in light of these four factors illuminates the

violation of Petitioner's right to a speedy trial:

a. Length of the delay: The sheer length of time it

took the government to get Petitioner to trial after

the charges were preferred on 6 September 2001

establishes a lack of diligence on the part of the

government. The charges were never properly

withdrawn or dismissed thus, the speedy trial clock

ran continuously from 6 September 2001 until

Petitioner was arraigned on 21 November 2002.

minus applicable exclusions. for a total of over 353

days. See App. Exs. I and IV.

b. The reason for the delay: The first reason given

for the delay was because a joint investigation was

pending. When that tumed out not to be the case,

the government then argued that the reason for the

delay was because OSI was investigating further

charges. The defense presented substantial

evidence that the real reason for the delay was so

that the government could get permission to seek

confinement -— something they had __ initially

forgotten to do. This is not a legitimate reason for

the delay.

c. Petitioner’s assertion of his right to a speedy

trial: Petitioner made a demand for trial on 20

August 2001. while still in pretrial “restraint

tantamount to confinement” and before the charges

were even preferred. See App. Ex. I.

ad. Whether Accused has suffered any prejudice

caused by the delay: Both Petitioner and his wife

testified about the prejudice the lengthy delay

caused Petitioner. R. 69-111. The defense summed

up the prejudice to Petitioner in its 19 November

2002 motion:

Specifically. he was deprived of

being with his wife during an

operation she had for an ovarian

cyst. He has also spent only a

few months with his wife despite

being married to her for more

than a year. During the time

charges were pending. SSgt

Tippits wife had their baby.

Due to the stress of being

deprived of her husband. and

given uncertainties of SSgt

Tippit's future. she was placed

under an extraordinary amount of

stress. This contributed to their

baby being born prematurely and

the baby has suffered from health

problems ever since then.

Hie had to leave the job he had

when originally held in Colorado

during 2001. Once he was

allowed to retum home he

secured a promising job and was

being groomed to take over part

of the management of | this

business. This was all lost when

the government required him to

return to Peterson AFB. CO. and

face his charges.

App. Ex. I. para. 11.

Petitioner's court was delayed for over 14 months

so the government could court-martial him tor

offenses that are generally dealt with under Article

15. UCMJ. This included the addition of a charge

of Petitioner wrongfully possessing an instrument

purporting to be “Security Police” credentials. even

though he was a Security Forces

noncommissioned officer. This charge. as_ the

dissent in the lower court ruling pointed out. “does

not. on its face. appear to be a serious offense -- if

indeed it is an offense at all.” /d.

Prejudice can come in many forms. including

restrictions on Petitioner's liberty. l/nited States v.

Dooley. 61 M.J. 258. 264 (C.A.A.F. 2005) The

military judge agreed that Petitioner was subjected

to “punitive” conditions of restraint while awaiting

trial. Due to the conditions of restraint the military

judge credited Petitioner with that time at

sentencing. Furthermore. as stated in the lower

court's dissent. Petitioner was also prejudiced by his

loss of his civilian job while being kept at Peterson

AFB awaiting trial. 7ippit, ACM 35624, 11 (A.F.

Ct. Crim. App. 14 July 2006). The dissent. from

Judge Erdmann. in the Court of Appeals for the

Armed Forces decision concluded that the

Government failed to act with due diligence to bring

Petitioner to trial and that he was prejudiced by the

delay in violation of Article 10. UCMJ. Jippit. 65

M.J. 69 (C.A.A.F. 2007). The government violated

the petitioner s right to a speedy trial under R.C.M.

707. Article 10. and the Sixth Amendment.

Dismissal of all charges and specifications with

prejudice was the appropriate remedy.

2. Ineffective Assistance of Counsel and

Providency of Plea

The Sixth Amendment guarantees an accused the

right to “effective assistance of counsel.” A/cAfann

v. Richardson, 397 U.S. 759. 771, 1.14 (1970). The

same right 1s afforded servicemembers in trial by

courts-martial under Article 27(b), UCMJ: United

States v. Polk, 32 M.J. 150 (C.M.A. 1991). In

Strickland v. Washington. 466 U.S. 668. 687

(1984). this Honorable Court set out a two-part test

to determine whether a conviction should be set

aside on grounds that an petitioner's trial defense

counsel was ineffective. First. the petitioner must

show that his counsel's performance was deficient.

and. second. the petitioner must show that he was

prejudiced by the deficient performance. See 466

U.S. at 687. To satisfy the second prong of the test,

the petitioner must show “a reasonable probability

that. but for counsel's unprofessional errors. the

result of the proceeding would have been different.”

Id. at 694.

“A criminal defendant who obtains relief under

Strickland does not receive a windfall: on the

contrary. reversal of such a defendant's conviction

is necessary to ensure a fair and just result.”

Kimmelman v. Morrison, 477 U.S. 365. 393 (1986)

(Powell. J.. concurring in the judgment).

In this case. Petitioner asserts that his defense

counsel did not advise him that his unconditional

guilty plea waived the speedy trial issue under

R.C.M. 707. Petitioner argues that the failure to

properly advise him of the consequences of his

guilty plea and the failure to pursue a conditional

guilty plea prejudiced him because he had a good

chance of prevailing on the R.C.M. 707 issue.

Under R.C.M. 707(a). the government must bring

an accused to trial within 120 days after the earlier

of the preferral of charges or the imposition of

pretrial confinement. Pretrial delays approved by a

military judge or the convening authority are

excluded under the 120-day rule. R.C.M. 707(c).

The remedy for a violation of speedy trial under

R.C.M. 707 is dismissal of the charges. either with

or without prejudice. R.C.M. 707(d). The charges

must be dismissed with prejudice where the accused

has been deprived of his constitutional right to a

speedy trial. In this case. there was a clear violation

of Petitioner's right to speedy trial under R.C.M.

707. The speedy trial clock started on 6 September

2001 and ran until Petitioner was arraigned on 21

November 2003. tor a total of over 437 days. App.

Fx. |. Even after applicable delavs. over 353 days

passed for purposes of speedy trial. App. Ex. I.

Thus. Petitioners right to a speeds trial under

R.C.M. 707 was clearly violated. and the charges

should have been dismissed. Trial defense counsel

failed to address the “withdrawal” of the 6

September 2001 charges and the errors surrounding

that withdrawal. Petitioner argues that the four

factors enumerated in R.C.M. 707. demonstrate that

dismissal of the charges should be with prejudice.

None of the charges against Petitioner were

particularly serious, as demonstrated by the amount

of confinement time the military judge adjudged

and credited with pretrial confinement credit. R.

376. The sheer length of this delay. for which the

government had no legitimate reason. would have

been the reason for the dismissal. As the Air Force

court's dissent makes clear, “Having preferred

charges against the appellant no less than four times

already. the government should not rightfully be

heard to complain about being denied a fifth bite at

the apple. Nor would there be any negative impact

on the administration of justice in bringing this

case. finally. to a close.” 7ippit. ACM 35624. 15

(A.F. Ct. Crim. App. 14 July 2006). Lastly, as

discussed above Petitioner suffered extreme

prejudice by the lengthy delay.

After balancing the factors set forth in R.C.M. 707.

Petitioner avers that it is clear the charges should

have been dismissed with prejudice. Thus.

Petitioner asserts that he received ineffective

assistance of counsel because his defense

counsel did not advise him that his guilty plea

waived the issue under R.C.M. 707. Petitioner's

counsel also mentioned. but failed to focus. the

motion to dismiss on not only R.C.M. 707 but also

Article 10. UCMJ. Furthermore, Petitioner received

ineffective assistance of counsel because his trial

defense counsel should have raised the issue

regarding the errors surrounding the “withdrawal”

of the 6 September 2001 charges. Petitioner's

counsel was also ineffective for their performance.

or. more accurately. lack thereof. in handling the

speedy trial issues. the meat of Petitioner's case.

“An accused must possess a correct understanding

of the law in relation to the facts of his case in order

that his plea of guilty be considered provident and

voluntary.” United States v. Peters. 11 M.J. 875.

876 (N.M.C.M.R. 1981) (citing United States v.

Care. 40 C.M.R. 247 (1969). United States v.

Cordova. 4 M.J. 604 (A.C.M.R. 1977)). “Waivers

of constitutional rights not only must be voluntary

but must be knowing. intelligent acts done with

sufficient awareness of the relevant circumstances

and likely consequences.” Brady vy. United States.

397 US 742. 756 (1970) (citations omitted). A plea

is improvident when it is premised on the erroneous

assumption that the guilty plea would not waive

appellate review of an issue. See United States

v. Higa, 12 M.J. 1008 (A.C.M.R. 1982).

Petitioner argues that he was unaware that his plea

of guilty waived his right to raise the R.C.M. 707

motion on appeal. He points out that that the

military judge apparently expected the issue to be

reviewed on appeal. as demonstrated by his

statement that he also considered the speedy trial

issue under Article 10. UCMJ, and the Sixth

Amendment “f{ijn the event it's later determined

that my findings as to when the speedy trial clock

Started was erroneous and that the speedy trial clock

began ticking when charges were preferred on 10

September 2001... ~ R. 248. Then. after

Petitioner entered pleas of guilty, he notes that the

military judge never informed him that his guilty

pleas waived the R.C.M. 707 issue. Petitioner

asserts that the defense counsel's failure to inform

Petitioner of the consequences of his plea. coupled

with the above-noted statement by the military

judge and the judge's corresponding failure to

inform Petitioner of the consequences of his pleas.

rendered Petitioner's pleas improvident because he

did not understand that pleading guilty waived the

R.C.M. 707 issue on appeal. Under these

circumstances, Petitioner avers that his plea was not

knowing and voluntary.

CONCLUSION

Petitioner was denied his right to a speedy trial

under R.C.M. 707. Article 10. and the Sixth

Amendment. Furthermore. Petitioner was denied

his Sixth Amendment right to effective assistance of

counsel. The ineffective assistance of counsel he

received failing to inform him that his pleas would

waive the R.C.M. 707 speedy trial issue rendered

his pleas improvident. The military judge. the Air

Force Court of Criminal Appeals and the Court of

Appeals for the Armed Forces denied Petitioner's

constitutional rights to a speedy trial and effective

assistance of counsel. The petitioner therefore

respectfully requests that this Court grant his

petition for a writ of certiorari.

Respectfully submitted.

VICKI A. BELILEAU

CAPTAIN. US. AIR FORCE

(Counsel of Record

MARK R. STRICKLAND

LT COLONEL. ULS. AIR FORCE

Counsel for Petitioner

Appellate Defense Division

Air Force Legal Operations Agency

112 Luke Avenue. Suite 343

Bolling AFB. DC 20332-8000

(202) 767-1562

September 2007

Appendix A

UNITED STATES, Appellee

ROBERT D. TIPPIT,

Airman Basic U.S. Air Force,

Appellant

65 M.J. 69

United States Court of Appeals for the

Armed Forces

Argued February 28, 2007

Decided June 12, 2007

EFFRON. C.J.. delivered the opinion of the

court. in which BAKER, J. and STUCKY. JJ.

joined. RYAN. J.. filed a separate opinion

dissenting in part. concurring in part, and

concurring in the result. ERDMANN. J.. filed a

dissenting opinion.

Counsel

For Appellant: Captain Vicki A. Belleau

(argued): Lieutenant Colonel Mark R.

Strickland.

For Appellee: Captain Captain Donna S.

Ruppell (argued): Colonel Gerald R. Bruce and

Major Matthew S. Ward (on brief): Lieutenant

Colonel Robert V. Combs.

Military Judge: Kurt D. Schuman.

Judge EFFRON delivered the opinion of the

Court.

A general court-martial composed of a military

judge sitting alone convicted Appellant.

pursuant to his pleas. of dereliction of duty.

violation of a lawful general regulation. filing a

fraudulent reimbursement claim. and wrongtul

possession of United States Air Force Security

Police credentials to the prejudice of good order

and discipline. in violation of Articles 92. 132.

and 134. Uniform Code of Military Justice

(UCMJ). 10 U.S.C. §§ 892. 932. 934 (2000).

The sentence adjudged by the court-martial and

approved by the convening authority included a

bad-conduct discharge. confinement for forty-

seven days. and reduction to the grade

of E-l. The United States Air Force Court of

Criminal Appeals affirmed. l/nited States v.

Tippit. No. ACM 35624. 2006 CCA LEXIS

186, 2006 WL 2269204 (A.F. Ct. Crim. App.

July 14, 2006) (unpublished).

On Appellant's petition. we granted review of

four issues related to the litigation of the speedy

trial motion at Appellant's court-martial. '

' We granted review of the following issues:

1 WHETHER THE MILITARY JUDGE

ERRED IN FINDING THERE WAS A “DE

FACTO DISMISSAL” OF THE CHARGES

AGAINST APPELLANT ON 6 NOVEMBER

2001 THAT WAS DONE FOR A

LEGITIMATE REASON.

Il. WHETHER THE MILITARY JUDGE

ERRED IN FINDING THAT APPELLANT

WAS NOT DENIED THE RIGHT TO A

SPEEDY TRIAL UNDER ARTICLE 10.

UCM.

Hl, WHETHER APPELLANT RECEIVED

INEFFECTIVE ASSISTANCE OF COUNSEL

WHEN HIS TRIAL DEFENSE COUNSEL

DID NOT INFORM’ HIM THAT AN

UNCONDITIONAL GUILTY PLEA

WAIVED THE SPEEDY TRIAL ISSUE

UNDER R.C.M. 707.

IV. WHETHER APPELLANT'S PLEA WAS

IMPROVIDENT WHERE IT WAS ENTERED

UPON THE MISTAKEN BELIEF THAT HIS

R.C.M.707 SPEEDY TRIAL ISSUE WOULD

BE PRESERVED FOR APPEAL.

For the reasons set forth below. we hold that

Appellant has not demonstrated error with

respect to speedy trial. the effective assistance

of counsel. or the providency of his plea.

1 BACKGROUND

A. THE INITIAL CHARGES

Appellant. a member of the Air Force Reserve.

performed inactive duty training at Peterson Air

Force Base. Colorado. On June 11. 2001. the

last scheduled dav of his inactive duty training

tour, Appellant prepared to return to civilian

life. He parked his truck near the Security

Forces office. his duty location. At that time.

Security Forces personnel were conducting an

exercise. and a dog trained in bomb detection

alerted on Appellant's truck. Appellant

consented to a search of the vehicle. which

yielded a cache of firearms. ammunition. and

related items. The search led to an investigation

by the Air Force Office of Special

Investigations (AFOSI).

Appellant's tour of duty was extended. and he

was placed under restriction until August 1.

2001. During the period of restriction. he was

first restricted to the base. and subsequently to

the confines of the surrounding county. As a

result of his extended tour of duty and period of

restriction, he could not return to Arizona where

he maintained his home and held a civilian job.

On August 20. 2001, while the investigation

continued, he requested a speedy trial.

Although both parties indicate that charges were

first preferred against Appellant on September

6, 2001. the record does not contain the charge

sheet. nor does it contain documentation of an

Official disposition of anv such charges. During

subsequent litigation at trial. the prosecution

indicated that the September 6. 2001 charges

were “withdrawn” shortly after preferral. on

September 10. 2001. because of an unspecified

“administrative error. The defense did not

litigate the content or disposition of the

September 6 charges at trial. Although

Appellant has alleged that the trial defense team

was ineffective for not addressing the

September 6 charges. see infra Part III.B.1.. his

appellate submissions do not provide further

information about the content or disposition of

the September 6 charges. nor do such

submissions allege that government personnel

involved in the processing of such charges were

unwilling or unable to provide such information

during the appellate proceedings.

The first charge sheet that appears in the record

of trial contains charges preferred on September

10. 2001. That charge sheet also documents an

additional charge preferred on October 10.

2001.

B. DISPOSITION OF THE CHARGES

PREFERRED ON SEPTEMBER 10. 2001.

AND OCTOBER 10. 2001

On September I]. 2001. the Special Court-

Martial Convening Authority ordered = an

investigation under Article 32. UCMIJ. 10

U.S.C. § 832 (2000). As a result of force

protection conditions surrounding the national

events of September 1]. 2001. the investigation

was delayed for a week. The defense requested

and was granted further delays until

October 10, 2001. The Article 32 hearing. which

began on October 10 and ended on October 12

considered the charges preferred on September

10, as well as the additional charge preferred on

October 10. The Article 32 investigating officer

submitted his report to the Special Court-Martial

Convening Authority on October 24, 2001. The

report recommended trial by general court-

martial on the charges that had been preferred

on September 10 and October 10.

While the Article 32 investigating officer's

recommendation was awaiting disposition by

the Special Court-Martial Convening Authority.

the AFOSI conducted a further investigation,

including a search of Appellant's home

computer. On October 31. 2001. an AFOSI

agent requested a forensic analysis of the

computer by another AFOSI office. The agent

included the following notation in the request:

“[djue to a legal mistake. SUBJECT [Appellant]

was brought onto active duty under the wrong

orders and now his status must be approved by

SECAF [Secretary of the Air Force]. The legal

office must now drop all charges and refile (the

original Article 32 has already been

completed). ~

On November 2. 2001. the staff judge

advocate (SJA) provided the Special Court-

Martial Convening Authority with a

memorandum regarding Appellant's case

entitled “Recommendation to Withdraw

Charges.” After noting the Article 32

investigating officer's recommendation for trial

by general court-martial, the SJA recommended

that “the charges be withdrawn at this time.”

The SJA_ stated that “a joint federal law

enforcement investigation is ongoing.” that

AFOSI had developed information from “very

reliable sources” about “significant weapons

related offenses” involving Appellant “and gun

dealers.” and that this information would put the

charged offenses “into proper context.” The SJA

added: “[w ]ithdrawing the charges now will not

prohibit re-preferral at a later time -- in approx

[sic] three months as this investigation ts

completed.”

Citing Rule for Courts-Martial (R.C.M.) 404.

the SJA provided the Special Court-Martial

Convening Authority with four options: “(1)

Dismiss the charges. (2) Forward the charges to

a subordinate commander for disposition. (3)

Refer charges to a summary or special court-

martial. or (4) Forward the Article 32 report

with the charges. to the superior commander . . .

for disposition.” The SJA recommended that

the convening authority authorize the SJA “to

withdraw charges by lining through the charge

sheet.” The convening authority wrote “concur”

and his initials on the memorandum. On

November 6, 2001, the SJA lined out all charges

and specifications on the charge sheet, adding

the word “withdrawn,” as well as his name and

the date. near the lines.

C. ACTIONS FOLLOWING DISPOSITION

OF THE SEPTEMBER 10, 2001, AND

OCTOBER 10, 2001, CHARGES

Shortly thereafter, the group support

commander informed Appellant that the charges

had been “dropped.” The legal office provided

defense counsel with a copy of the charge sheet

with the September 10. 2001 and October 10.

2001 charges lined out. The legal office did not

provide defense counsel with a reason for this

action. Defense counsel showed the document

with the lined out charges to Appellant and told

him that the charges had been dismissed. On

November 6. 2001. the same day that the

charges were lined out. Appellant was released

from active duty and permitted to return to his

home in Arizona. AFOSI continued its

10a

investigation.. but no constraints were

placed upon Appellant's resumption of civilian

life.

D. THE 2002 CHARGES

In January 2002. the command initiated a

request to recall Appellant to active duty to face

charges. The Secretary of the Air Force

approved the request on May 23. 2002. and

Appellant reported for duty on June 7, 2002.

AFOSI released its final investigative report on

June 28. 2002. New charges were preferred on

July 2. 2002. The 2002 charges were

substantially the same as the charges preferred

on September 10. 2001 and October 10. 2001.

with the addition of two new specifications

alleging violations of a federal firearms statute.

18 U.S.C. § 922 (2000).

On July 15. 2002. the Special Court-Martial

Convening Authority ordered a new

investigation under Article 32 and appointed a

new investigating officer. The investigating

officer relied on material from the prior Article

32 proceedings. as well as_ information

developed in the new Article 32 hearing. The

investigating officer reviewed and incorporated

a substantial amount of the information from the

lla

prior Article 32. with certain modifications

and without objection by the defense. which had

offered to waive the Article 32 proceeding.

The investigating officer issued her report on

August 15, 2002. recommending trial by general

court-martial. The Special Court-Martial

Convening Authority approved and forwarded

the recommendation for trial by general court-

martial. The General Court-Martial Convening

Authority referred the charges to a general

court-martial on September 21. 2002.

E. APPELLANT'S SPEEDY TRIAL MOTION

|. Options for litigating speedy trial issues

In the present appeal. the parties have addressed

the right to a speedy trial under three different

sourccs Of Jaw constitutional. statutory, and

regulatory. The constitutional standard provides

that the accused in a criminal prosecution “shall

enjoy the right to a speedy . . . trial.” U.S. Const.

amend. VI. The Supreme Court has established

a four-part test for assessing whether a delay

amounts to a Sixth Amendment constitutional

violation. Barker v. Wingo. 407 U.S. 514. 530

(1972) (requiring a balancing of the length of

the delay. reasons for the delay. whether the

I2a

appellant demanded a speedy trial. and any

prejudice to the appellant from the delay): see

also United States v. Grom. 21 M.J. 53. 56-57

(C.M.A. 1985) (applying the Barker factors to

an alleged Sixth Amendment speedy trial right

violation). In addition to the Sixth Amendment.

timely processing also is subject to assessment

under the Due Process Clause of the Fifth

Amendment. See United States v. Reed. 41 MJ.

449. 451-52 (C.A.A.F. 1995). The defense has

not alleged a due process violation in the present

appeal.

The statutory standard. Article 10. UCMJ. 10

U.S.C. § 810 (2000). provides that “[w)hen any

person subject to this chapter 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.” Sce

also United States v. Powell. 2 MJ. 6. 7-8

(C.M.A. 1976) (describing circumstances under

which certain forms of restriction may trigger

the protections of Article 10). Article 10

provides “a more exacting speedy trial” standard

than the Sixth Amendment. United States v.

Mizgala. 61 M.J. 122. 124-25 (C_A.A.F. 2005).

The standard under Article 10 for assessing the

Government s actions “is not constant motion.

l3a

but reasonable diligence in bringing

the charges to trial.” Id. at 127 (citation and

quotation marks omitted). Although Article 10

establishes a more stringent standard than the

Sixth Amendment, we have relied on _ the

Supreme Court's four-part test from Barker v.

Wingo to evaluate Article 10 claims. See United

States v. Birge. 52 M.J. 209, 212 (C.A.A.F.

1999).

The regulatory standard set forth in R.C.M. 707

requires that an accused be brought to trial

within 120 days of preferral of charges.

imposition of restraint. or entry onto active duty,

whichever is earliest. R-C.M. 707(a). An

accused 1s “brought to trial” within the meaning

of the Rule at arraignment. R-.C.M. 707(b)(1):

R.C.M. 904. If charges are dismissed. the clock

stops and a new 120-day period begins upon re-

preferral of charges. R.C.M. 707(b)(3)(A)Q).

2. Appellant's R.C.M. 707 motion at trial

On November 19, 2002. prior to arraignment,

the defense moved to dismiss all of the charges

based upon a violation of Appellant's right to a

speedy trial pursuant to the 120-day standard set

forth in R.C.M. 707. The defense motion noted

that the Sixth Amendment provides an accused

Ida

with the right to a speedy trial. but did

not explain how the processing of Appellant's

case violated the Sixth Amendment. The

detense did not allege a violation of Appellant's

speedy trial right under Article 10.

With respect to R.C.M. 707. the defense focused

its attention on September 10. 2001. as the date

on which “the speedy trial clock began.” The

defense did not allege that the clock began to

run with the September 6. 2001] charges or that

there had not been a proper disposition of the

September 6 charges.

The defense contended that the speedy trial

clock had run continuously since September 10.

2001. taking the position that the command had

improperly “withdrawn” the charges in

November 2001. According to the defense. the

improper withdrawal did not result in a

dismissal of charges required to stop the speedy

trial clock under R.C.M. 707(b)(3 (A)(1).

The defense focused on use of the word

“withdrawal” on the charge sheet and in the

SJA’s November 2. 2001, recommendation to

the convening authority. The defense noted that

the word “withdrawal.” as used in the Manual

for Courts-Martial. refers to the act of removing

15a

charges from a court- martial after referral

of those charges to court-martial. See R.C.M.

604. Because charges withdrawn from a court-

martial remain in effect and may be referred to

another court-martial under the circumstances

set forth in R.C.M. 604(b). the act of withdrawal

under R.C.M. 604 does not result in dismissal of

the charges. The defense added that because the

September 10. 2001 and October 10, 2001

charges had never been referred to a

courtmartial, and thus could not be

“withdrawn.” they remained in effect for more

than 400 days. thereby violating the 120-day

limit established by R.C.M. 707.

The defense further contended that the action of

the convening authority did not stop the speedy

trial clock because the Government had not

demonstrated a legitimate reason for dismissing

the charges. The defense focused on the October

31. 2001, AFOSI request for a forensic analysis

of Appellant's computer. which contained the

following comment:

SUBJECT has been brought on active

duty and confined to base pending

completion of this investigation. Due to

a legal mistake. SUBJECT was brought

onto active duty under the wrong orders

loa

and now his status must be approved

by SECAF [the Secretary of the Air

Force}. The legal office must now drop

all charges and refile. . . .

According to the defense. the AFOS] document

demonstrated that the SJA‘s stated reason for

recommending dismissal of the 2001 charges --

an ongoing joint military-civilian investigation

-- merely served as a subterfuge to buy time so

that the Government could correct Appellant's

orders. The defense also attacked the factual

basis for the SJA‘s statement that there was a

joint’ investigation. or even an ongoing

investigation. by relying on AFOSI agents

testimony that there were concurrent. but

separate investigations and by endeavoring to

show that nothing substantially new was

discovered after the “withdrawal” of the charges

in November 2001. The defense contended that

the SJA was simply trving to “rationalize” the

delay.

3. The military judge's ruling on the speedy trial

motion

The military judge entered extensive findings of

fact and conclusions of law in the course of

ruling on the defense speedy trial motion. The

17a

military judge found that there was no

R.C.M. 707 violation because the speedy trial

clock had been stopped by the dismissal of the

charges by the Special Court-Martial Convening

Authority on or about November 6. 2001. The

military judge relied upon the fact that the SJA

had informed the convening authority correctly

of his disposition options under R.C.M. 404.

including dismissal, forwarding the charges to a

subordinate commander. referring the charges to

a summary or special court-martial, or

forwarding the charges to a _ superior

commander. The military judge cited a number

of actions that he viewed as consistent with the

choice of dismissal: the concurrence of the

convening authority with the recommendation

of the SJA to withdraw the charges. “the act of

lining out all of the charges and specifications.

notification to the accused that the charges had

been dropped.” and the release of the accused

from active duty.”

The military judge concluded that the SJA had

not used the word “withdrawal” in_shis

November 2. 2001 memorandum to recommend

withdrawal of charges under R.C.M. 604. The

military judge observed that withdrawal under

R.C.M. 604 was possible only after charges had

been referred to trial. and that the charges in the

18a

present case had not been referred to a

courtmartial at the time of the SJA‘s

memorandum. The military judge concluded

that there was no basis to assume that the SJA

intended to recommend that the convening

authority undertake the impossible act of

withdrawal of the charges under R.C.M. 604

prior to referral. On the contrary, the SJA‘s

intent to recommend dismissal under R.C.M.

404. not withdrawal under R.C.M. 604. was

evident both from his proper citation of

dismissal as one of the convening authority s

options under R.C.M. 404. and from the

contemplation of re-preferral of the charges in

the future. an act that would have been

unnecessary if the charges had been withdrawn.

but not dismissed. under R.C.M. 604.

The military judge further found that there was a

legitimate reason for the dismissal -- to allow

for the completion of the ongoing investigation.

Because the 200] charges had been dismissed

for a legitimate reason. the military judge found

that the speedy trial clock did not restart until

June 7. 2002. when Appellant reported for duty.

tle calculated that 104 davs elapsed from that

date to arraignment on the 2002 charges.

Accordingly. he concluded that Appellant's

19a

right under R.C.M. 707 to be brought to

trial within 120 days had not been violated.

Although the defense had not alleged a violation

of Appellant's speedy trial right under Article

10, the military judge addressed Article 10 on

his Own motion in conjunction with his ruling

on Appellant's Sixth Amendment claim. The

military judge concluded that the Government

had proceeded with reasonable diligence, and

that any delays did not result in constitutional or

statutory prejudice.

4. Appellant's unconditional guilty plea

Appellant subsequently entered an

unconditional guilty plea. After conducting an

inquiry into the providence of the plea, the

military judge entered findings of guilty.

Il. WAIVER

Under R.C.M. 707(¢). an unconditional “plea of

guilty which results in a finding of guilty waives

any speedy trial issue as to that offense” under

the Rule. Such a plea also waives any speedy

trial issue as to that offense under the Sixth

Amendment. See Mizgala. 61 M_J. at 125. In the

present case. Appellant's unconditional guilty

20a

plea = waived his speedy trial rights

under R.C.M. 707 and the Sixth Amendment.

We shall consider them only to the extent that

they bear on the granted issues conceming

ineffective assistance of counsel and_ the

providence of Appellant's plea. See infra Parts

Ill and IV.

In Mizgala. we concluded that Article 10

provides a narrow exception to the normal rule

that a speedy trial motion is waived by an

unconditional guilty plea. 61 M.J. at 126.

Noting the “unique nature of the protections” set

forth in Article 10 and the special role of Article

10 in promoting efficiency in the military justice

system. we held that “a litigated speedy trial

motion under Article 10 is not waived by a

subsequent unconditional guilty plea.” Id. at 127

(emphasis added). We _ further held that

“Mizgala’s unconditional guilty plea did not

waive his right to contest the military judge's

denial of his Article 10 motion on appeal.” Id.

(emphasis added). In short, a servicemember

who enters an unconditional guilty plea may

appeal a speedy trial claim under Article 10 only

if the accused has invoked Article 10 at trial by

filing and litigating an Article 10 motion at trial.

Requiring a litigated Article 10 motion fosters

the prompt disposition of military justice cases

21a

by promoting the development of an

adequate record at trial on the issues required to

be addressed under Article 10. Mizgala provides

no authority for an accused to disregard Article

10 in favor of other bases for a speedy trial

motion. plead guilty. and then attempt to raise

an Article 10 violation on appeal.

Here. the Appellant did not make a motion

under Article 10 at trial and did not litigate the

speedy trial motion he did make under Article

10. Appellant focused his motion and arguments

on the requirements of R.C.M. 707. with an

occasional broad reference to the Sixth

Amendment. The military judge briefly

addressed Article 10 on his own motion. not

because it was raised or litigated by the defense.

In that context, the military judge did not

articulate detailed findings for Article 10. which

had not been raised or litigated by the defense.

Instead. the military judge focused narrowly on

the question of whether there had been any

prejudice to the defense from the length of time

it took to bring him to trial. without making the

type of specific findings on the nature of

restraint and processing of the case that

normally would have accompanied a litigated

Article 10 motion. The ruling reflects the

actions of a military judge who sought to

22a

address briefly a _ potential issue. mt

the actions of a military judge presiding over a

litigated Article 10 motion. We note that

although Appellant does not concede that the

Article 10 issue was waived. he asserts trial

defense counsel were ineffective in that they did

not “focus” the motion to dismiss on Article 10.

Because the defense did not make the requisite

Article 10 motion at trial. any issue with respect

to Article 10 was waived. See Mizgala 61M.J. at

127: see also United States v. Sloan. 22 C.M.A.

587. 590. 48 C.MR. 211. 214 (1974)

(concluding that failure to raise the issue at trial

waives the Article 10 right). We shall consider

Article 10 only to the extent that it bears upon

the granted issues concerning ineffective

assistance of counsel and the providence of

Appellant's plea. See intra Parts [I] and IV.

Il. ASSISTANCE OF COUNSEL

Appellant claims that his trial defense team was

deficient in the following respects: (1) failure to

challenge the disposition of the inival charges

filed on September 6. 2001: (2) failure to advise

him that an unconditional guilty plea would

waive appellate consideration of his R.C.M. 707

speedy trial claim. and of the possibility of

entering a conditional guilty plea to preserve the

23a

issue. and (3) failure to focus the speedy

trial claim on Article 10. The Government

disputes factual and legal aspects of Appellant's

claims.

A. STANDARD OF REVIEW

Members of the armed forces are entitled to the

effective assistance of counsel. United States v.

Scott. 24 M.J. 186, 187-88 (C.M.A. 1987): see

U.S. Const. amend. VI; Article 27(b), UCMJ, 10

U.S.C. § 827(b) (2000). We review claims of

ineffective assistance of counsel de novo.

United States v. Perez. 64 M.J. 239. 243

(C.A.A.F. 2006).

An appellant who alleges ineffective assistance

of counsel “must surmount a very high hurdle.”

Id. (citations and quotation marks omitted). As

the Supreme Court has emphasized. a reviewing

court “must indulge a strong presumption that

counsel's conduct falls within the wide range of

reasonable professional assistance.” Strickland

v. Washington. 466 U.S. 668. 689 (1984).

To overcome the presumption of competence.

an appellant must demonstrate: (1) “a deficiency

in counsel's performance that is “so serious that

counsel was not functioning as the “counsel”

24a

guaranteed the defendant by the Sixth

Amendment: and (2) that the deficient

performance prejudiced the defense through

errors "so serious as to deprive the defendant of

a fair trial. a trial whose result ts reliable.”

United States v. Moulton. 47 MJ. 227, 229

(C.A.A.F. 1997) (quoting Strickland. 466 U.S.

at 687 ). To satisfy the prejudice prong of

Strickland in a guilty plea case. the defense

must also “show specifically that “there is a

reasonable probability that. but for counsel's

errors. he would not have pleaded guilty and

would have insisted on going to trial.” United

States v. Alves. 53 M.J. 286. 289 (C.A.A.F.

2000) (quoting Hill v. Lockhart. 474 U.S. 52. 59

(1985)).

When challenging the performance of counsel.

the defense bears the burden of establishing the

truth of the factual allegations that would

provide the basis for finding deficient

performance. See United States v. Polk. 32 MJ.

150. 153 (C.M.A. 1991). When there is a factual

dispute. we determine’ whether — further

factfinding is required under United States v.

Ginn. 47 M.J. 236 (C.A.A.F. 1997). If. however.

the facts alleged by the defense would not result

in relief under the high standard set by

Strickland. we may address the claim without

25a

the necessity of resolving the factual

dispute. See id. at 248. Likewise. “we need not

determine whether any of the alleged errors [in

counsel's performance] establish] |

constitutional deficiencies under the first prong

of Strickland . . . [if] any such errors would not

have been prejudicial under the high hurdle

established by the second prong of Strickland.”

United States v. Saintaude. 61 M.J. 175, 183

(C.A.A.F. 2005).

B. ANALYSIS OF APPELLANT'S CLAIMS

1. Disposition of the September 6, 2001. charges

Appellant contends that his counsel were

ineffective by focusing on the September 10.

2001 charges instead of the September 6. 2001

charges as the basis for the speedy trial motion.

At trial, the defense counsel expressly stated

that he was not arguing for the clock to start on

September 6, 2001. but instead asked the

military judge to focus on the September 10.

2001 charges. According to Appellant. had

counsel focused on the September 6. 2001

charges. he would have prevailed at trial.

Appellant's theory is that the September 6

charges had never been dismissed. which meant

that the speedy trial clock had not stopped prior

26a

to arraignment. and that the 120-day

speedy trial standard in R.C.M. 707 had been

violated. The record. in the context of

addressing the later charges preferred on

September 10. 2001. contains various references

by the parties to the fact that charges were

preferred initially on September 6 = and

“withdrawn” on September 10 a result of “an

administrative error. The record. however.

contains little information about the content or

disposition of the September 6 charges.

There is a high hurd!e that must be surmounted

to prove an ineffective assistance claim and here

Appellant has not met his initial burden of

establishing a factual record that would permit

us to ascertain the basis for his claim: the actual

content of the September 6. 2001. charges.

whether the document containing those charges

constituted a legally sufficient preferral. sce

R.C.M. 307. and the official nature of any

subsequent action on those charges are all

undocumented. See. ¢.g.. R.C.M. 401. There ts

no September 6. 200) charge sheet in the record

and there is ne record of any official action with

respect to that charge sheet. Appellant has not

asserted that the Government has been unwilling

or unable to produce the records. Likewise.

Appellant has not asserted that he has been

27a

unable to obtain affidavits from any of

the participants in the charging and disposition

process as to the content or action on those

charges. In essence. Appellant asks us to

speculate not only as to the facts that would

establish the validity of the September 6. 2001,

preferral for purposes of starting the speedy trial

clock, but also as to the facts that would

establish the invalidity of any subsequent

disposition of those charges so that we reach the

conclusion that the speedy trial clock ran

continuously from September 6, 2001.

Juxtaposed against the presumption of effective

assistance of counsel required by Strickland. we

decline Appellant's invitation to find his trial

defense counsel ineffective for failing to

challenge the disposition of the September 6.

2001 charges when Appellant has failed to

provide an appellate record that documents the

disposition of the charges. See Moulton. 47 M_J.

at 229.

2. The convening authority's action on the

September 10. 2001, and October 10. 2001.

charges

Appellant contends that his counsel were

deficient because they failed to tell him that his

unconditional guilty plea would waive appellate

28a

review of the speedy — trial motion.

Appellant's civilian and military trial defense

counsel have submitted affidavits asserting that

they provided appropriate advice. and their

affidavits dispute Appellant's account of the

nature of the advice that thev provided.

According to Appellant. had he been advised

properly, he would have pled guilty only if the

convening authority had agreed to a conditional

guilty plea that preserved the speedy trial issue

for appeal.

Even if we assume both that Appellant's factual

assertions are valid and that failure to provide

such advice was deficient under the first prong

of Strickland. Appellant must demonstrate that

he would prevail on his R.C.M. 707 speedy trial

issue On appeal in order to establish prejudice

under the second prong of Strickland. See Perez.

64 M.J. at 243. For the following reasons. we

conclude that the military judge did not err and

that Appellant would not have prevailed on

appeal even if the issue had not been waived.

The charges that started the speedy trial clock

under R.C.M. 707 were preferred against

Appellant on September 10. 2001. On

November 2. 2001. well within the R.C.M. 707

120-day period. the SJA provided the Special

29a

Court-Martial Convening Authority

with a recommendation that included an

“Options” section that accurately set forth the

convening authority's disposition choices under

R.C.M. 404:

(1) “Dismiss the charges”:

(2) “Forward the charges to a subordinate

commander for disposition”:

(3) “Refer charges to a summary or special

court-martial”: or

(4) “Forward the Article 32 report with the

charges. to the superior commander, 14 AF/CC,

for disposition.”

Here. the option to “Dismiss the charges” is

critical for purposes of the speedy trial motion.

If the convening authority chose the option to

dismiss the charges. that stopped the speedy trial

clock under R.C.M. 707(b)(3). On the other

hand. if the convening authority did not choose

“Dismiss the charges.” more than 350

accountable days passed from preferral on

September 10. 2001, to arraignment on

November 20. 2002. a violation of Appellant's

right to be brought to trial within 120 days

under R.C.M. 707.

30a

At trial. and = on appeal. Appellant

contends that the convening authority did not

dismiss the charges. citing the SJA’s

recommendation that the convening authority

“withdraw the charges and the convening

authority's one word = action= --“concur.”

Appellant's argument also focuses on the SJA‘s

repeated use of the words “withdraw.”

“withdrawal.” and “withdrawing” in his

memorandum to the convening authority and on

the charge sheet following the convening

authority s decision. Appellant contends that the

term “withdraw” should be given the meaning it

has in R.C.M. 604. which permits charges that

have been referred to a court-martial to be

“withdeawn” and referred to another court-

martial. subject to limited exceptions. As

Appellant notes. the act of withdrawing a

referred charge from a court-martial under

R.C.M. 604 does not produce dismissal of the

charges. United States v. Britton. 26 M.J. 24. 26

(C.M.A. 1988). Compare R.C.M. 604(a)

(charges may be withdrawn only after they have

been referred to trial), with R.C.M. 404(a)

(preferred charges may be dismissed).

In Britton. charges that had been referred to trial

were withdrawn by the convening authority and

referred to another court-martial. with no

3la

evidence of an intent by the convening

authority to dismiss the charges. Britton, 26

M.J. at 26. The present case is distinguishable

from Britton on several grounds. First, the

parties in the present case agree that the charges

had not been referred to a court-martial at the

time of the convening authority's action, and

that the convening authority could not

“withdraw” the charges from a court-martial as

a matter of law under R.C.M. 604. Second, the

SJA’s memorandum contains no suggestion that

the charges had already been referred to a court-

martial; on the contrary. the memorandum lists

referral as an option for the convening authority.

There is nothing in the memorandum that

suggests the convening authority had the option

of removing charges trom an existing court-

martial. Third. the SJA did not list withdrawal

under R.C.M. 604 as an option. nor did the SJA

otherwise refer to R.C.M. 604 itn his

memorandum, so there 1s no. basis _ for

concluding that the SJA sought to use the term

“withdrawal” as it is used in R.C.M. 604 with

respect to charges that have been referred to

court-martial. Fourth. the Rules for Courts-

Martial do not treat “withdrawal” as a defined

term. In the operative language of the rules. the

terms “withdraw” and “withdrawn” are

expressly placed in the context of charges

32a

referred to a courtmartial in the

introductory sentence of RC.M. 604(a)

(“withdrawn from a court-martial”) and R.C_M.

604(b) (“withdrawn from a court-martial”). The

SJA did not refer to R.C.M. 604 or otherwise

suggest that “withdraw” meant removing a

referred charge from a court-martial. Fifth. the

SJA advised the convening authority that

“[w]ithdrawing the charges now will not

prohibit re-preferral at a later time... We

note that when charges are withdrawn under

R.C.M. 604 they remain in effect. which would

have rendered the SJA‘’s_ discussion of

“repreferral” —- an action that is required after

charges are dismissed -- superfluous and

inapplicable. We also observe that as a matter of

common usage. the definition of the term

“withdraw specifically includes “to abandon

the prosecution of.” See Webster's Third New

International Dictionary Unabridged 2626

(1986). In that context. one can reasonably infer

that the SJA intended to use “withdraw” in its

colloquial sense of abandoning prosecution and

thus was indicating the option of dismissal.

Finally. we note the numerous actions taken by

the prosecution and defense in the aftermath of

the convening authority's action. as described

by the military judge and summarized in Part

33a

LC... supra. all of which were consistent

with dismissal of the charges.

In light of the foregoing. this is not a case like

Britton where the convening authority had the

option of either dismissal or withdrawal and we

are required to ascertain from the documents

which of two valid options were chosen. In such

a case. use of the term “withdraw” would be

problematic. Here. however. we have an SJA

providing the convening authority with only one

such option —- dismiss —- and using common

language which has the same _ colloquial

meaning as dismissal. Although we do not

recommend use of the word “withdrawal” to

implement a dismissal of charges, the SJA’s

accurate presentation of dismissal as an option

in the present case and the convening

authority s decision to concur are sufficient. in

the circumstances of this casc. to dismiss the

charges on November 6. 2001 and stop the

R.C.M. 707 speedy trial clock.

3. Propriety of the convening authority's

disposition of the 2001 charges

“{O|nce charges are dismissed. absent a

subterfuge. the speedy-trial clock ts restarted.”

United States v. Anderson. 50 M.J. 447. 448

34a

(CLA.A.F. 1999). Here. Appellant

contends that even if the convening authority

dismissed the September 10. 200] charges on

November 6, 2001. there was no “satisfactory

reason to dismiss the charges.” In the SJA‘s

November 2, 2001 memorandum to_ the

convening authority. the SJA offered the

following in support of dismissing the charges:

“[iJnformation has come to the attention of the

AFOSI through very reliable sources that

significant weapons related offenses -- a joint

federal law enforcement investigation is

ongoing — involving the subject and gun

dealers.” He added that this information put the

charged offenses “into proper context” and thai

the charges could be re-preterred “at a later ime

— im approx|imately|] three months as_ this

investigation is completed.” Appellant contends

that the SJA’s recommendation on disposition

was not legitimate because the AFOSI and

civilian law enforcement agencies were not

engaged in a “joint investigation.”

The military judge. in his findings of fact. found

that “a formal joint federal investigation did not

exist between the AFOSI and either the FBI

[Federal Bureau of Investigation] or the ATF

[Bureau of Alcohol. Tobacco. and Firearms]

with regard to this case... .~” The military judge

35a

also found that “all three agencies were

sharing information with each other concerning

investigations that were being conducted by

each agency which were somewhat interrelated

with each other.” On appeal, we accept the

military judge's findings of fact unless they are

clearly erroneous. Mizgala, 61 M.J. at 127.

Appellant has not challenged the military

judge’s finding that the three agencies were

conducting “interrelated” investigations and

sharing information with each other. Appellant

also has not claimed that the SJA deliberately

misled the convening authority, and it is not

apparent whether the SJA had been is informed

about the specific relationship among the

various agencies. or whether he was simply

imprecise when he referred to a “joint

investigation.

Nonetheless, the import of his communication

to the convening authority was that multiple

federal agencies were continuing investigative

efforts with respect to Appellant's activities.

Appellant has not demonstrated why it would

make any difference. for purposes of dismissing

charges, whether the action was based upon the

existence of a “joint” investigation or several

parallel investigations. In the circumstances of

the present case. the existence of parallel

36a

investigations and the decision to await their

completion to fully ascertain the number and

nature of offenses constituted a legitimate

reason for dismissing the charges with a view

towards later re-preferral. See R.C.M. 401(c)(1)

Discussion (“It is appropriate to dismiss a

charge and prefer another charge anew when.

for example. the original . . . did not adequately

reflect the nature or seriousness of the

offense.~): cf. United States v. Cossio, 64 M.J.

254. 257 (C.A.A.F. 2007) (finding it not

unreasonable under Article 10 for the

government to wait for a forensic examination

of evidence before proceeding to trial).

Appellant also contends that the convening

authority's November 2001 disposition was

deficient because the “real reason” for

disposition of the charges in November 2001

“was because the government had not secured

the proper approval necessary to ask for

confinement for a reservist.” as reflected in a

contemporaneous AFOSI memorandum. The

AFOSI memorandum at issue involved a request

for analysis of Appellant's computer and it

contained the following comment: “Due to a

legal mistake. SUBJECT was brought onto

active duty under the wrong orders and now his

Status must be approved by SECAF. The legal

37a

office must now drop all charges and refile

(the original Article 32 already has been

completed). The military judge, however. did

not adopt the defense’s view that this comment.

rather than the explanation in the SJA‘s

recommendation, was the reason for the

dismissal. The military judge noted that the

agent who drafted the AFOSI memorandum

could not “recall how. or from whom, he

received the information” about the charges.

Accordingly. the military judge focused solely

on the ongoing investigation as the basis for the

convening authority s disposition of the charges.

and concluded that it was a valid basis for the

dismissal in November 2001.

The defense has not established that the military

judge erred in his findings of fact. At trial. the

AFOSI agent made it clear that he could not

recall the basis for his comments in_ the

memorandum regarding dismissal of the

charges. The defense did not introduce further

evidence from persons who had _ direct

knowledge of the disposition. such as the SJA or

the convening authority. In that posture. the

military judge had a sufficient basis for

determining that the comment about Secretarial

approval m the AFOSI memorandum. without

more. did not support a finding that the

38a

command had. in fact. made the disposition

decision for that reason. On appeal. the defense

has not provided any new information. in the

form of affidavits from the SJA. convening

authority. or otherwise. that would lead us to

conclude that the military judge erred in his

findings of fact. or that trial defense counsel

erred by not calling either the SJA or the

convening authority as witnesses.

Even if the desire to obtain Secretarial approval

was a matter considered by the SJA or the

convening authority in November 2001. that

would not establish that the command took such

action as a subterfuge to evade the R.C.M. 707

speedy trial clock. Appellant has not set forth

legal authority for the proposition implicit in his

argument -- that the convening authority found

it necessary to dismiss the charges in November

2001 because of a defect in Appellant's orders.

Assuming that Secretarial approval of the orders

was required as a result of Appellant's status as

a reservist in order to preserve the potential for a

sentence to confinement. see Article 2(d)(5)(A).

UCMJ. 10 U.S.C. § 802(d)5)(A) (2000). the

law does not require dismissal of the charges as

a predicate for obtaining such orders. Moreover.

Secretarial approval is not required under

Article 2 for the preferral of charges. Most

39a

significantly, the defense has _ not

demonstrated that the charges were dismissed

on November 6, 2001. for the purpose of

providing a sufficient opportunity to obtain

Secretarial approval prior to expiration of the

120-day speedy trial clock. At that point, less

than sixty days had expired and the defense has

not shown that anyone in authority had

determined that the remaining period on the

clock was insufficient to obtain Secretarial

approval.

Under the foregoing circumstances. Appellant

has not established that the “real reason” the

convening authority disposed of the charges in

November 2001 was the failure to obtain

Secretarial approval. Moreover. the defense has

not demonstrated that the dismissal was a

subterfuge designed to defeat the 120-day

speedy trial clock. Accordingly, irrespective of

whether counsel advised Appellant that his

unconditional guilty plea waived further review

of his R.C.M. 707 motion. his ineffective

assistance of counsel claim fails under the

second prong of Strickland. There is no

prejudice to Appellant because he has not

established that he would have prevailed on

appeal.

40a

4. Article 10

Appellant contends that trial defense counsel

were ineffective because they did not focus on

the Article 10 issue at trial. Article 10 requires

the government to act with reasonable diligence

to bring charges to trial when an accused is

under arrest or confinement. or under certain

forms of restriction. See supra Part I.E.!. At trial

and on appeal. the defense has not identified a

period of arrest or confinement that would

require the application of Article 10 to this case,

nor has the defense demonstrated that the nature

of any restriction in this case would have

triggered Article 10. We note. however. that

during sentencing. the military judge awarded

credit for the forty-seven days in 2001 that

Appellant was restricted to the base and county

prior to preferral of the charges. For purposes of

addressing the ineffective assistance claim. we

Shall assume without deciding that the forty-

seven-day restriction is sufficient to trigger the

application of Article 10.

Because the protections of Article 10 are

broader than R.C.M. 707. our resolution of

Appellant's claim under R.C.M. 707 in Part

111.B.2.. supra. does not necessarily resolve the

claim under Article 10. See United States v.

4la

Kossman, 38 MJ. 258. 261 (C.MA.

1993). The test under Article 10 is whether the

government has acted with reasonable diligence.

Id. at 262. We take into account the four factors

applicable to litigation of speedy trial claims

under the Sixth Amendment: “(1) length of the

delay; (2) the reasons for the delay; (3) whether

the appellant made a demand for a speedy trial:

and (4) prejudice to the appellant.” Mizgala, 61

M.J. at 129 (citing Barker, 407 U.S. at 530).

Appellant, however. has not identified specific

factors in the present case that would enable him

to prevail under Article 10 even if unsuccessful

under R.C.M. 707. Rather, Appellant relies

primarily on his R.C.M. 707 argument that the

convening authority did not properly dismiss the

charges in November 200] to argue that there

was a lack of reasonable diligence in terms of

the length of delay and the reasons for the delay.

As discussed in Part II[.B.2.. supra. we have

concluded that the convening authority

dismissed the charges in November 2001 and

had a legitimate reason for doing so. In light of

the command's decision to dismiss the charges

and defer any action until the outcome of the

ongoimeg investigation was known. Appellant has

not demonstrated that the Gove. nent failed to

proceed with reasonable diligence. either with

42a

respect to the length of the delay or with

respect to the reasons for the delay. In that

posture. he has not established that he would

prevail on appeal had his counsel pursued a

different strategy at trial by making the motion

under Article 10, in addition to R.C.M. 707, and

Appellant's ineffective assistance counsel claim

fails under the second prong of Strickland.

IV. PROVIDENCY OF PLEA

Appellant contends that his plea was

improvident because it was based on_ the

mistaken belief that his R.C.M. 707 speedy trial

issue would be preserved for appeal. The

"decision to accept a guilty plea 1s reviewed for

an abuse of discretion." United States v. Eberle.

44 MJ. 374, 375 (C.A.A.F. 1996) (citation

omitted). "An appellant who challenges the

providency of a guilty plea must demonstrate ‘a

substantial basis in law and fact for questioning

the guilty plea."" United States v. Pena. 64 M.J.

259. 267 (C.A.A.F. 2007) (quoting United

States v. Prater. 32 M.J. 433. 436 (C.M.A.

1991)).

Appellant argues that several factors render his

plea improvident: (1) his trial defense counsel

did not tell him his plea would waive appellate

43a

review of the R.C.M. 707 speedy trial issue:

(2) the military judge "apparently expected the

issue to be reviewed on appeal" because in his

ruling on the speedy trial motion he mentioned

" [ijn the event it's later determined that my

findings as to when the speedy trial clock started

was erroneous™: and (3) the military judge did

not explain that his plea waived the speedy trial

issue. These factors do not render his plea

improvident.

We have addressed the first factor in our

previous discussion and resolution of his

ineffective assistance of counsel claim. See

supra Parts 11.B.2.. 111.B.3. As to the second,

the fact that the military judge provided

alternative theories for consideration on appeal

reflects the reasonable actions of a military

judge at trial. not any lack of merit to the

military judge's rulings nor any considered

decision by him that an unconditional guilty

plea would not waive the R.C.M. 707 issue in

Appellant's case. Finally. the military judge

does not have an affirmative duty under R.C.M.

910 to instruct an accused that an unconditional

guilty plea waives further review of an R.C.M.

707 speedy trial claim. For these reasons. we

find that Appellant has failed to demonstrate

that his plea Was improvident.

44a

V.DECISION

The decision of the United States Air Force

Court of Criminal Appeals is _ affirmed.

CONCUR BY: RYAN (In Part)

DISSENT BY: RYAN (In Part); EROMANN

DISSENT

RYAN. Judge (dissenting in part. concurring in

part. and concurring in the _ result):

For the reasons set forth in Judge Erdmann’s

separate opinion, | respectfully dissent from the

portion of the majority opinion that holds that

the convening authority in this case "dismissed"

charges it expressly stated were "withdrawn."

However. | nonetheless concur in the result.

First. | agree with the majority's conclusion that.

pursuant to Rule for Courts-Martial (R.C.M.)

707(e). Appellant. by pleading guilty. waived

ans claim under R.C.M. 707.

Second. | agree with the majority's conclusion

that any speedy trial claim under Article 10.

Uniform Code of Military Justice (UCMJ). 10

U.S.C. § 810 (2000). was waived. See also

4Sa

United States v. Mizgala, 61 M.J. 122,

127 (C.A.A.F. 2005) (requiring a defendant to

litigate an Article 10. UCMS, claim prior to

pleading zuilty to avoid waiver).

Finally, I agree with the majority that

Appellant's counsel was not ineffective for

failing to litigate Article 10, UCMJ, at trial.

However, as | agree with Judge Erdmann that

the "withdrawal" of charges was a nullity, |

would also address the granted issue -- whether

Appellant's counsel was ineffective because he

did not inform Appellant that a guilty plea

waived appeal under R.C.M. 707.

| would resolve Appellant's ineffectiveness

claim by addressing prejudice. See United States

v. Perez. 64 M.J. 239, 243 (C.A.A.F. 2006). In

order to prevail on an ineffectiveness claim an

appellant must show that there is a reasonable

probability that "absent [counsel's] error. there

would have been a different result." United

States vy. Davis, 60 M.J. 469, 474 (C.A.A.F.

2005) (citation omitted). In this case, only

dismissal with prejudice would have yielded a

different result. To warrant dismissal with

prejudice under R.C.M. 707 a defendant must

satisfy. among other things. the Barker test. See

R.C.M. 707(d\( 1). Barker v. Wingo. 407 US.

46a

514, 530-33,92 S.Ct. 2182. 33 L. Ed. 2d

10] (1972).

Appellant has not shown the requisite prejudice

to meet this high standard. During much of the

delay period Appellant was released from active

duty and at home. He has not shown an

improper Government purpose for the delay.

Nor has he proffered evidence of either

oppressive pretrial incarceration or evidence

that his "preparation for trial, defense evidence.

trial strategy. or ability to present witnesses"

were adversely impacted by the delay in this

case. Mizgala, 61 M.J. at 129 (addressing the

Barker factors). Because there was no material

prejudice to Appellant's substantial rights under

the facts of this case. | concur in the result.

ERDMANN. Judge (dissenting):

Because the convening authority's November 6.

2001. action did not dismiss the charges or stop

‘the speedy trial clock, | respectfully dissent.

The Uniform Code of Military Justice and the

Manual for Courts-Martial (MIC Af) establish a

unique system of justice. As a result. actions

taken in the military justice system often have

unique meanings and effects. "Dismissal" and

47a

"withdrawal" are terms of art, with

distinct meanings under the Rules for Courts-

Martial (R.C.M.). A commander may "dismiss"

charges and thereby extinguish them. R.C.M.

401(c)(1). "Withdrawal", on the other hand. can

occur only after charges have been referred to a

court-martial. R.C.M. 604(a). Withdrawal does

not, however, extinguish the charges. The

Government should be bound by the actual

meaning of the terms it employs and | am not

persuaded by subsequent arguments that we

should construe those terms to mean something

distinctly different and contrary to their ordinary

meanings in the military justice system.

The staff judge advocate's November 2. 2001.

memorandum to the convening authority

specifically recommended in three separate

sentences that the charges be "withdrawn." The

convening authority specifically "concur[red]"

with that recommendation. In addition, the

initial charge sheet reflects that the charges

were “withdrawn.” Because none of these

charges had been referred for trial by courts-

martial. withdrawal was not possible. The

purported withdrawal was a legal and factual

nullity.

There is no evidence or manifestation of the

48a

convening authority's intent supporting any

conclusion that these charges were dismissed.

This court should not rewrite the procedural

history of this case to come to that conclusion.

The UCMJ and MCM establish rules and

procedures as determined by the Congress and

President. respectively. To the extent that those

rules and our decisions demand procedural

compliance from the defense, so too should we

demand adherence to the rules by the

Government. Withdrawal of these unreferred

charges was a nullity that this court should not

convert into a legal dismissal of the charges.

Turning to the speedy trial issue, | agree with

the majority that Tippit's unconditional guilty

pleas waived the Sixth Amendment and R.C.M.

707 speedy trial issues. Hlowever,. in the context

of this case and as framed by the parties at trial.

| conclude that the issue of Tippit's right to a

speedy trial under Article 10. UCMJ. 10 U.S.C.

§$ 810 (2000). was preserved for appellate

review. See United States v. Mizgala. 61 M.J.

122. 127 (C.A.A.F. 2005). Although — the

detense's written speedy trial motion did not

specifically rely upon Article 10. UCMJ. the

Government obviously recognized _ the

applicability of this fundamental right and

argued in its written response that Article 10.

49a

UCMJ. had not been violated. In tum. the

military judge recognized that the issue had

been placed before him. He considered and

ruled upon Tippit's right to a speedy trial under

Article 10. UCMJ. and found that the

Government had proceeded with reasonable

diligence. Tippit subsequently appealed the

Article 10. UCMJ. speedy trial issue to the

Court of Criminal Appeals. which reviewed the

Article 10, UCMJ, issue and affirmed the

military judge's determination. In my view this

constitutes litigation of the Article 10, UCM.

speedy trial issue at trial and preserves the

matter for appellate review. M/izgala. 61 M.J. at

127. Just as the Court of Criminal Appeals did. |

would proceed to review Tippit's Article 10.

UCMSJ. claim.

Because the charges were never dismissed. the

Government's accountability for speedy trial

commenced on September 10. 2001. and

October 10. 2001. when the charges in this case

were preferred. That accountability continued

uninterrupted up to the time of Tippit's trial -- an

excessive delay of over one year. "[The]

framework to determine’ whether _ the

Government proceeded with reasonable

diligence includes balancing the following four

factors: (1) the length of the delay: (2) the

50a

reasons for the delay: (3) whether the

appellant made a demand for a speedy trial: and

(4) prejudice to the appellant." Afizgala. 61 M.J.

at 129 (citing Barker v. Wingo. 407 U.S. 314.

530. 92 S. Ct. 2182. 33 L. Ed. 2d 101 (1972):

United States v. Birge. 32 MJ. 209. 212

(C.A.A.F. 1999)).

Although there may have been some complexity

involved in the forensic investigation of this

case, | conclude that this delay was unjustified

and well beyond that which can be considered

reasonably necessary. Tippit demanded a speeds

trial on August 20. 2001. During this period of

delay. Tippit was restricted on June 15. 2001.

released from active duty on November 6. 2001.

recalled to active duty on June 5, 2002. and

reported for duty two days later. Trial did not

commence until November 21. 2002. This

extended process strained Tippit's tamily

relationships. disrupted his civilian affairs. and

placed added burdens upon his wife. The fact

that Tippit was misadvised that the charges were

dismissed. the uncertainty he experienced in his

civilian life. and the disruption in his personal

life constitute unusual anxiety that | find

prejudicial. See id. (citing Barker. 407 U.S. at

532).

Sla

| would conclude that the Government failed

to act with due diligence to bring Tippit to trial

and that Tippit was prejudiced by the delay in

violation of Article 10. UCMJ. Therefore. |

would set aside the decision of the Court of

Criminal Appeals, set aside the findings and

sentence. and dismiss the charges with

prejudice. United States v. Kossman, 38 M.J.

258, 262 (C.M.A. 1993). Accordingly, | would

not reach the ineffective assistance of counsel

claim or the providence of Tippit's guilty pleas.

574

Appendix B

UNITED STATES AIR FORCE COURT OF

CRIMINAL APPEALS

UNITED STATES

Staff Sergeant ROBERT D. TIPPIT

United States Air Force

ACM 35624

14 July 2006

Sentence adjudged 9 January 2003 by GCM

convened at Peterson Air Force Base. Colorado.

Military Judge: Kurt D. Schuman (sitting alone).

Approved sentence: Bad-conduct discharge.

confinement 47 days. and reduction to E-1.

S3a

Appellate Counsel for Appellant: Colonel

Beverly B. Knott, Colonel Carlos L. McDade.

Colonel Nikki A. Hall. Major Terry L.

McElyea, Major Sandra K. Whittington, Major

Jennifer K. Martwick. and Major David P.

Bennett.

Appellate Counsel for the United States:

Colonel LeEllen Coacher. Colonel Gary F.

Spencer, Lieutenant Colonel Robert V. Combs.

Major Kevin P. Stiens. and Major Jin-Hwa L.

Frazier.

Before

STONE. SMITH and MATHEWS

Appellate Military Judges

OPINION OF THE COUR!

STONE. Senior Judge:

In accordance with his pleas. the appellant was

convicted of dereliction of duty, violation of a

lawful general regulation, filing a trauduleni

travel voucher. and conduct prejudicial to good

54a

order and discipline. A military judge.

sitting alone as a general

See Articles 92, 132. and 134, UCMJ, 10

U.S.C. §§ 892. 932. 934.

court-martial. sentenced him to a bad-conduct

discharge. confinement for 47 days. and

reduction to the grade of E-1. The appellant

raises the following issues for our review:

WHETHER THE MILITARY JUDGE

ERRED IN FINDING THERE WAS A

“DE FACTO DISMISSAL” OF THE

CHARGES AGAINST APPELLANT

ON 6 NOVEMBER 2001 THAT WAS

DONE FOR A _— LEGITIMATE

REASON.

WHETHER THE MILITARY JUDGE

FERRED IN FINDING THAT

APPELLANT WAS NOT DENIED

THE RIGHT TO A SPEEDY TRIAL

UNDER ARTICLE 10. UCMJ [. 10

U.S.C. § 810].

HI.

WHETHER APPELLANT RECEIVED

INEFFECTIVE ASSISTANCE OF

$Sa

COUNSEL WHEN HIS) TRIAL

DEFENSE COUNSEL DID NOT

INFORM HIM THAT AN

UNCONDITIONAL GUILTY PLEA

WAIVED THE SPEEDY TRIAL ISSUE

UNDER [RULE FOR COURTS-

MARTIAL (R.C.M.)] 707.

IV.

WHETHER APPELLANT'S” PLEA

WAS IMPROVIDENT WHERE_ IT

WAS ENTERED ~~ UPON THE

MISTAKEN BELIEF THAT HIS

R.C.M. 707 SPEEDY TRIAL ISSUE

WOULD BE PRESERVED FOR

APPEAL.

Background

The appellant was a Reservist performing

inactive duty training as a Security Forces troop

at Peterson Air Force Base (AFB), Colorado.

On I1 June 2001. the last day of his training

tour. he drove his pickup truck onto base and

parked tt near the Security Forces offices. his

duty location. By happenstance. Security Forces

personnel were conducting a training exercise

involving a military working dog team in the

same parking lot. A dog trained in bomb

detection alerted on the appellant's truck. When

56a

a flight sergeant asked the appellant for

permission to search the truck. the appellant

consented.

' This issue is raised pursuant to United States v.

Grostefon. 12 M.J. 431 (C.M.A. 1982).

- This issue is raised pursuant to Grostefon, 12

M.J. at 431. We have considered this issue and

found it to be without merit. See United States v.

Matias. 25 M.J. 356 (C.M.A. 1987). The search

led to the discovery of a large cache of firearms.

ammunition. and related paraphernalia.

Believing that at least some of the weapons and

ammunition might be stolen. the local

detachment of the Air Force Office of Special

Investigations (AFOSI) opened an investigation.

The appellant's training tour was extended. and

he was ordered to remain within the confines of

El Paso County. Colorado. the county in which

the base is situated. As a consequence. the

appellant was unable to return to his home in

Arizona. On 20 August 2001. after more than

two months in this status. the appellant made a

demand for a speedy trial.

Procedural Background

57a

Charges were preferred against the

appellant on four separate occasions. For

convenience. we shall refer to the 6 September

2001 charges as the “original charges.” and the

10 September 2001 and 10 October 2001

charges collectively as the “2001 charges.” The

final set of charges in this case. preferred in July

2002. will be referred to as the “2002 charges.”

On 6 September 2001. the government preferred

the original charges. The precise nature and

ultimate disposition of these charges is unclear.

According to the trial counsel, they were

“withdrawn” because of “an administrative

error’ on 10 September 2001. The record does

not clearly indicate who “withdrew” these

charges or under what authority they purported

to dispose of them. But at trial and on appeal.

the appellant's counsel have not challenged the

manner in which these charges were handled.

New charges were preferred on 10 September

2001. Documents in the record of trial suggest

these new charges were similar to the original

set. but were apparently “redrafied™ in ordered

to “better state the alleged offenses.” The next

day. the special court-martial convening

authority appointed an investigating officer to

58a

conduct what would be the first of two

inquiries held pursuant to Article 32. UCMJ. 10

U.S.C. § 832. Because of the terrorist attacks of

11 September 2001. this hearing did not begin

until 10 October 2001. On that date. the

government preferred an additional charge.

Soon after this initial Article 32 hearing. the

local AFOSI detachment = prepared =a

memorandum requesting another AFOSI

detachment conduct a forensic media analysis of

the appellant's home computer. [t provided

justification to support the request for

investigative support. as well as background

information. This memorandum was the

; The military judge determined the appellant

was subjected to pretrial conditions tantamount

to confinement and awarded the appellant 47

davs of credit towards his. sentence to

confinement. See United States v. Mason. 19

M.J. 274 (C.M.A. 1985).

Despite the defenses forthright

acknowledgement that the original charges

posed no problems with the speedy trial issue

litigated at trial. the dissent nonetheless

presumes the disposition of this preferral was

“defective.”

"9a

comerstone of the trial defense counsel's claim

that the disposition of the 2001 charges was

simply a subterfuge to avoid problems with the

speedy trial clock. Specifically, the trial

participants focused on paragraph 2 of the

request. which stated:

PRIORITY: High command. local. and

federal agency [Federal Bureau of

Investigation and Alcohol. Tobacco, and

Firearms] interest. SUBJECT was

discovered on base with a large cache of

weapons, munitions. communication

devices. a full-face hooded mask. and

other items. . . . SUBJECT has been

brought on active duty and confined to

base pending completion of _ this

investigation. Due to a legal mistake.

SUBJECT was [brought] onto active

duty under the wrong arders and now

his status must be approved by [the

Secretary of the Air Force]. The legal

office must now drop all charges and

refile....

(Emphasis added. )

advocate (SJA) forwarded the Anticle 32

60a

investigative report to the special court-

martial convening authority. The SJA also

provided a written legal opinion entitled.

“Recommendation to Withdraw Charges —

United States v. SSgt Tippit.” \t laid out a brief

history of the case. but did not address anv

problems with the appellant's active duty status

or anv “legal mistake.” as noted in the AFOSI

memorandum. Instead. pursuant to R.C.M.

404(a)-(b). the SJA advised the convening

authority as follows:

The [investigating officer] recommends

a trial by general courts-martial.

|| Despite this recommendation = |

recommend that the charges’ be

withdrawn at this time. Information has

come to the attention of the AFOSI

through very reliable sources that

significant weapons related offenses—a

joint federal law = enforcement

investigation is ongoing—involving the

subject and gun dealers {sic]. This

conduct puts the offenses with which

{the appellant] is charged into proper

context. Withdrawing the charges now

will not prohibit re-preferra/ at a later

| ee

6la

[] Options: Pursuant to RCM 404. as the

special court-martial convening

authority, you may: (1) Dismiss the

charges. (2) Forward the charges to a

subordinate commander for disposition.

(3) Refer charges to a summary or

special court-martial, or (4) Forward the

Article 32 report with the charges, to the

Superior commander. 14 AF/CC. for

disposition.

[|] Recommendation: that you authroize

[sic] the SJA to withdraw charges by

lining through the charge sheet.

(Emphasis added.)

On 5 November 2001, the convening authority

initialed the SJA’s memo and hand-wrote the

single word “Concur.” The following day, the

SJA_ lined through charges on both the 10

September 2001 and 10 October 2001 charge

Sheets. wrote “WITHDRAWAL” on two pages

and “WITHDRAWN” on another. and signed

all three pages. See RCM. 401(c)(1).

Discussion (“Charges are ordinarily dismissed

by lining out and initialing the deleted

specifications or otherwise recording that a

specification is dismissed”). Some time

62a

afterward. the appellant was

informed that charges had been dropped. See id.

(“When all charges and specifications are

dismissed. the accuser and the accused

ordinarily should be informed”). He was then

released from active duty to return to his family

in Arizona. He resumed his civilian life. finding

new employment and becoming a father.

In January 2002. command and Jegal staff began

processing paperwork to recall the appellant to

active duty. The base SJA forwarded the request

through legal channels to obtain permission

from the Secretary of the Air Force. That

request was granted on 23 May 2002. and the

appellant was ordered back onto active duty on

5S June 2002 to face court-martial charges. The

appellant reported for duty on 7 June 2002. For

reasons not explained in the record of trial.

charges were not preferred again for almost four

more weeks. on 2 July 2002.

On 15 July 2002. a new Article 32 investigating

officer was appointed. and a hearing was set for

17 July 2002. The appellant initially requested a

delay until 5 August 2002 to permit his civilian

counsel to attend the second Article 32 hearing.

but eventually elected to waive the hearing.

Despite the appellant's waiver. the government

63a

chose to proceed with — the Article 32 hearing

as scheduled. Upon its completion. a copy was

served on the appellant and his counsel. who

made no objection to the report. Charges were

ultimately referred to a general court-martial.

On 19 November 2002, the trial defense counsel

filed a motion to dismiss based upon a denial of

his right to a speedy trial. He alleged the 200]

charges were not properly withdrawn because

they had never been referred to trial. In

response, the government argued that the

withdrawal of the 2001 charges was not a

withdrawal. but was “in essence” a dismissal

under R.C.M. 404(a). The appellant countered

this argument by suggesting that the dismissal

was an improper subterfuge meant to keep the

appellant in limbo and avoid the running of the

speedy trial clock.

| See generally R.C.M. 405(j)(4) (objections to

the report shall be made within five days of its

receipt) and R.C.M. 405(k) (failure to object to

the report constitutes waiver of any objection).

64a

See R.C.M. 604(a) (charges and

specifications may only be “withdrawn” after

they have been referred to tril).

The appellant was arraigned on 21 November

2002. During a pretrial session held pursuant

Article 39(a). UCMJ. 10 U.S.C. § 839(a). the

appellant's counsel sought to compel discovery

of records pertaining to the “ongoing” law

enforcement investigation cited by the SJA as

the rationale for his recommendation to the

convening authority to “withdraw” the 2001

charges. The government was ordered to

produce the records. and owing to the schedules

of the parties. the court-martial then recessed

until 8 January 2003.

Armed with their additional discovery. the trial

defense counsel vigorously contested the SJA‘s

claim in his 2 November 2001 letter to the

convening authority that there was an ongoing

‘joint’ federal investigation of the appellant.

The AFOSI case agent and detachment

commander both testified that. although there

was information sharing between their office

and other federal agencies. there was no official

joint investigation. Neither party called the SJA

to explain the provenance of his claim.

65a

The appellant's counsel argued that the “true™

reason for the withdrawal of the 2001 charges

was because the legal office had concluded,

after preferral, that the appellant, a Reservist,

could not properly be tried without approval

from the Secretary of the Air Force. Without

explicitly claiming that the SJA lied in his

memo to the convening authority. the

appellant's counsel attacked the factual basis for

the memo’s claim that there was an “ongoing”

investigation. They attempted to cast doubt on

the government's explanation of why the

government dismissed the 2001 charges.

arguing the SJA was merely trying to

“rationalize” the lengthy delay, and observing

that the government's explanation “doesn't

make sense.”

Waiver

We begin with a discussion of whether the

appellant's speedy trial issues were waived by

his unconditional guilty pleas. R.C.M. 707(e)

specifically provides that “a plea of guilty which

results in a finding of guilty waives any speedy

trial issue as to that offense.” See also United

States v. Mizgala. 61 M.J. 122. 125 (C.A.AF.

2005). On the other hand. a speedy trial motion

66a

litigated under Article 10. UCMJ. 10 U.S.C.

§ 810. “Is not waived by a_ subsequent

unconditional guilty plea.” /d. at 127.

In determining whether we should address the

otherwise waived R.C.M. 707 speedy trial issue.

we have taken into account the appellant's

personal assertion of error that his counsel were

ineffective for failing to advise him that his

unconditional guilty plea waived his R.C.M.

707 speedy trial claim. To resolve this

ineffective assistance of counsel issue. we apply

a three-pronged analvsis to determine whether a

presumption of competence has been overcome:

(1) Are appellant's allegations true: if so. “ts

there a reasonable explanation for counsel's

actions ?

(2) If the allegations are true. did defense

counsel's level of advocacy fall “measurably

below the performance . . . [ordinarily expected]

of fallible lawvers”? and

(3) If a defense counsel was ineffective. is there

“a reasonable probability that. absent the

errors. there would have been a different result.

67a

United States v. Gilley. 56 MJ. 113.

124 (C.A.A.F. 2001) (quoting United States v.

Polk. 32 M.J. 150, 153 (C.M.A. 1991)).

If we were to assume—without deciding—that

the appellant has met his burden as to the first

two prongs. we would be required to address the

R.C.M. 707 claim to determine if there was any

prejudice to the appellant. Because we elect to

resolve the appellant's ineffective assistance of

counsel claim by relying on the merit. or rather

the lack of merit. of the R.C.M. 707 claim. in

the interest of judicial economy. we decline to

apply waiver.

Discussion

A trial courts conclusion that an accused

received a speedy trial for R.C.M. 707 purposes

is a legal question that is reviewed de novo on

appeal. United States v. Doty. 51 M.J. 464. 465

(C.A.A.F. 1999). The trial court's findings of

fact are given “substantial deference and will be

reversed only for clear error.” /d. (quoting

United States v. Taylor. 487 U.S. 326. 337

(1988)). Similarly, for speedy trial questions

involving the Sixth Amendment and Article 10.

UCMJ. we conduct a de novo review of the

legal question of whether the government has

exercised “reasonable diligence im discharging

68a

its duty... to try an accused.” United

States v. Cooper. 58 M.J. 34. 59 (C.A.A.F.

2003). We accord the lower court's factual

determinations deference and reject them only if

they are clearly erroneous. /d. at 58 (citing

United States v. Brown. 285 F.3d 95°. 961 (1 1th

Cir. 2002)). The burden of persuasion is on the

government to justify a delav. United States v.

Cook. 27 M.J. 212. 215 (C.M.A. 1988).

We turn to the appellant's first contention

relating to the speedy trial provisions of R.C.M.

707. This Rule requires an accused to be

brought to trial within 120 days after the earlier

of preferral of charges. imposition of restraint.

or entry on active duty. The appellate contends

the 2001 charges were never properly dism.ssed

and thus the speedy trial clock was not resct.

Thus. if the charges were not properly dismissed

on 10 September 2001. 363 days passed (after

allowing a deduction for delays attributable to

the defense) from preferral to arraignment.

Unfortunately. military appellate courts have

ofien been called upon to determine whether

charges were properiv dismissed or merel\

withdrawn. See. e.g. United States y.

' nderwood. 50 M.J. 271. 272-75 (C.A.A.F.

1999): lL nited States v. Britton. 26 M.J. 24. 26

(C.M.A. 1988). United States v. Gray. 26 MJ.

16. 21 (C.M.A. 1988) (Everett. C_J.. concurring

69a

in the result): United States v. Mickla, 29

M.J. 749, 751-52 (A.F.C.M.R. 1989). United

States v. Robinson. 47 M.J. 506. 509-11 (N.M.

Ct. Crim. App. 1997). United States vy.

Weatherspoon, 39 M.J. 762, 766 (A.C.M.R.

1994): United States v. Bolado, 34 M.J. 732.

737-38 (N.M.C.M.R. 1991), affd. 36 M.J. 2

(C.M.A. 1992): United States v. Lorenc, 30 M.J.

619, 620-23 (N.M.C.M.R. 1990). These courts

have applied the concept of “de facto dismissal”

whenever: (1) there has been substantial

compliance with the Rules for Courts-Martial:

(2) the intent to dismiss is clear despite faulty

drafismanship: (3) the government's conduct

Was consistent with a dismissal; and (4) the

dismissal was uone for a proper purpose.

After making extensive findings of fact. the

judge below concluded there had been a “de

facto dismissal” of the charges on 6 November

2001. In making this conclusion. he relied on (1)

the convening authority's concurrence with the

SJA‘s recommendation to withdraw the charges:

(2) the lining out of all of the charges and

specifications by the SJA, (3) the government's

notification to the accused and counsel that

charges had been “dropped”: and (4) the release

of the appellant from active duty. Cf United

70a

States v. Mucthison. 28M.J. 1113. 1114-15

(N.M.C.M.R. 1989).

We likewise conclude that the convening

authority's 2 November 2001 concurrence with

the SJA‘’s recommendation to “withdraw”

charges was a “de facto dismissal.” The

convening authority s decision could not legally

have been a withdrawal because there had been

no referral. and thus there was no court-martial

from which to withdraw the charges and

specifications. See id. In the universe of options,

that only leaves dismissal. and the actions taken

after the convening authority s concurrence on 2

November 2001 are the tvpes of things that

would have been done in a technically sound

dismissal.

Moreover. the government's actions reflect an

intent to dismiss the charges. In Britton. our

Superior court noted there are “substantial

differences” between dismissal and withdrawal

of charges. 26 M.J. at 26. Chief among these are

that with a proper dismissal. an accused no

longer faces charges. and to bring them anew

“requires the command to start over. The

charges must be re-preferred. investigated. and

referred in accordance with the Rules for

7la

Courts-Martial, as though there were no

previous charges or proceedings.” /d.

Despite the government's repeated use of the

word “withdrawal” when it meant “dismissal.”

the government's actions consistently

comported with an intent to dismiss charges. to

include a new preferral. investigation. and

referral. Thus, the appellant was

; Our dissenting colleague suggests that the

second Article 32 investigation was inadequate

because the investigating officer used

summarized testimony from the prior report and

incorporated by reference the conclusions of the

first investigating officer. The dissent applies an

extremely narrow interpretation of Britton. The

use of prior statements is permitted under

R.C.M. 405(2)4)(A). Moreover. the

investigating officers report clearly indicates

she took a arraigned within 120 days of being

brought back on active duty to face charges. as

required by R.C.M. 707.

fresh look at the evidence. rendered a thorough

and comprehensive report. and made

independent conclusions and recommendations.

72a

We next consider whether the charges

and specifications were dismissed for a proper

purpose. Once charges are dismissed. absent

subterfuge. the speedy trial clock is restarted.

United States v. Anderson. 50 MJ. 447

(C_.A.A.F. 1999). See also United States vy.

Thomas. 41 M.J. 665 (A.F. Ct. Crim. App.

1994) (dismissal must be for a “satisfactory~

reason). The nonbinding Discussion to R.C.M.

401(c)(1) states. “A charge should be dismissed

when it fails to state an offense. when it ts

unsupported by available evidence. or when

there are other sound reasons why trial by court-

martial is not appropriate.” The Discussion goes

on to state. “It is appropriate to dismiss a charge

and prefer another charge anew when. for

example. the original charge failed to state an

offense. or was so defective that a mayor

amendment was required . . . or did not

adequately reflect the nature or seriousness of

the offense.”

This list is by no means exhaustive. Nothing in

the record of trial leads this Court to believe the

decision to dismiss the charges and

specifications was a subterfuge to avoid speedy

trial problems. The record does provide two

valid reasons for the dismissal. First. although

the SJA was. once again. inartful when he

73a

referred to a “joint investigation”

between Air Force investigators and other

federal agencies, there was, in fact. interest in

the appellant's case by other federal agencies

that led to information sharing. Moreover, it was

proper to seek Secretarial approval to recall the

appellant to active duty. These concerns served

legitimate command purposes.

Having found no merit to the appellant's claim

that his right to a speedy trial under R.C.M. 707

was violated. we further find the appellant has

failed to meet his burden of establishing

prejudice under the third prong of our superior

court's test for resolving ineffective assistance

of counsel issues. See Gilley, 56 M.J. at 124:

Polk, 32 M.J. at 153.

We turn now to the appellant's claim that the

government violated his rights under Article 10.

UCMS. This statute provides. “When any person

subject to this chapter is placed in arrest or

confinement prior to trial. immediate steps shall

be taken to inform him of the specific wrong of

which he ts accused and to try him or to dismiss

the charges and release him.” At trial. the judge

below sua sponte considered whether the

appellant's Article 10. UCMJ. mnghts were

violated: he also considered those rights to a

74a

speedy trial found in the Sixth Amendment

to the United States Constitution. In doing so. he

applied the proper balancing test and concluded

the government acted with due diligence in

bringing the appellant to trial. We agree. See

Barker vy. Wingo. 407 U.S. 514 (1972): Mizgala.

61 M.J. at 129: United States v. Plants. 57 M.J.

460 (C.A.A.F. 2002). The appellant's rights to a

speedy trial under Article 10. UCMJ. and the

Sixth Amendment to the Constitution were not

violated.

Conclusion

The approved findings and sentence are correct

in law and fact. and no error prejudicial to the

substantial rights of the appellant occurred.

Article 66(c). UCMJ. 10 U.S.C. § 866(c):

United States v. Reed. 34 M.J. 37. 41 (C.A.A.F.

2000). Accordingly, the findings and sentence

are AFFIRMED.

Judge Smith participated in this decision prior to

his reassignment.

MATHEWS. Judge (dissenting):

The majority opinion rests on the premise that

because there is no merit to the appellant's

speeds trial complaints. his claims of ineffective

75a

assistance of counsel are likewise without

merit. Because | am unable concur with the

majority s premise. | cannot join in_ its

conclusion.

As the majority notes. the appellant was served

with three discrete sets of charges: the charges

preferred on 6 September 2001 (referred to by

the majority as the “original charges”): those

preferred on 10 September 2001 and joined by

an additional charge on 10 October 2001 (the

“2001 charges”), and the charges preferred on 2

July 2002 (the “2002 charges”). These charges

were. In essence, successive iterations of the

same allegations: the 2002 charges on which the

appellant was convicted were simply new

versions of the 2001 charges. which in turn were

redrafied versions of the original charges. By

the time the appellant was finally arraigned in

2002. he had been facing the same charges for

over 14 months -- well beyond the 120-day limit

of R.C.M. 707.

To affirm the appellant's conviction, this Court

must find that the speedy trial clocks that

commenced with the preferral of the original

charges and the 2001 charges both stopped and

were reset to zero. Under the rationale embraced

by the majority it is necessary. first. to

76a

altogether ignore the defective disposition

of the original charges. and next. to retroactively

cure the improper handling of the 2001 charges

by judicially converting the convening

authority's direction to “withdraw” those

charges into a dismissal of the same charges. In

effect. we are asked to rescue the government

from its own ineptitude not once. but twice.

Because | do not believe the facts support such a

double-barreled salvage operation. i respectfully

dissent.

The Original Charges

The military judge did not enter findings of fact

concerning the disposition of the original

charges. The record of trial. however. contains

parallel averments from trial counsel and trial

defense counsel that these charges were

preferred on 6 September 2001 and served on

the appellant the same dav. They were

purportedly “withdrawn” four days later by the

local trial counsel. Capt D. for reasons that are

unclear from the record. The charges preferred

on 10 September 2001 were “basically the

same as the original charges.

77a

The parties at trial stipulated that the date

of preferral of the original charges was one of

the first dates “relevant to compliance with the

Speedy trial rules.” Under the Rules for Courts-

Martial, they were correct. Once the original

charges were preferred, the appellant's first

speedy trial clock began running. R.C.M.

707(a): United States v. Gray. 26 M.J. 16. 20

(C.M.A. 1988). Capt D’s action did not stop that

clock, much less reset it to zero. See United

States v. Britton, 26 M.J. 24, 26 (C.M.A. 1988).

The majority opinion concludes that the

disposition of the 2001 charges amounted to a

“de facto dismissal” that reset the appellant's

second speedy trial clock. without ever

addressing the one that began running with the

preferral of the original charges. Unless Capt

D's purported “withdrawal” can somehow be

converted into vet another “de facto dismissal.”

that clock continued to run.

The record does not support such a conversion.

As the majority opinion rightly concludes. the

“convening authority's concurrence” ts a

necessary prerequisite for finding a “de facto

dismissal” of charges. There is no evidence of

such concurrence with regard to the original

charges. The facts presented at trial were that

the convening authority withdrew the 2001

78a

charges. but that Capt D ~~ withdrew _ the

original ones. Such an error is not particularly

surprising in this case. The disposition of the

original charges was handled by the same cast

of characters who. a few weeks later. bungled

the disposition of the 2001 charges.

A circuit trial counsel later joimed the

prosecution team. but does not appear to have

plaved any part in the disposition of the original

charges.

{

The parties agreed to allow the military judge

to consider their offers of proot as fact when

deciding the appellant's speedy trial motion.

Both parties agreed that the original charges

were properly preferred by the appellant's

commander. Lt Col A. a person subject to the

UCMJ. on 6 September 2001 and “withdrawn”

four days later. Capt D asserted that the original

charges suffered from an _— unspecified

“administrative error’ necessitating their

withdrawal. The defense team noted that the

error Was apparently one of drafismanship. and

that the original charges were simply put aside

in favor of better-written ones. Neither asserted

that the convening authority was in any way

involved.

79a

Indeed. the record does not even suggest

that the convening authority was aware of the

existence of the original charges. let alone Capt

D's disposition of them. None of the

voluminous correspondence or reports provided

to or originating from the convening authority

make any mention the original charges, let alone

their purported “withdrawal.”

When. as here. the trial counsel simply puts the

charge sheet in his back pocket, the speedy trial

clock does not stop. The appellant was not

arraigned on the offenses alleged in the original

charges until 2] November 2002. more than 14

months after preferral and long after his demand

for a speedy trial. The majority opinion gives

short shrift to these facts, noting merely that the

defense counsel “have not challenged” the

disposition of the original charges. The

majority thus infers that there was no speedy

rial violation because competent counsel would

have alleged it. while disposing of the

appellant's allegations that his trial counsel were

ineffective by concluding there was no speedy

trial violation.

The 2001 Charges

80a

Unlike the original charges. there is

evidence that the 2001 charges were disposed of

with the concurrence of the convening authority.

However. the disposition authorized by the

convening authority -- withdrawal of the 2001

charges -- was not permissible under the Rules

for Courts-Martial. Like Capt D’s disposition of

the original charges. this action, too. was a

nullity for speedy trial purposes.

As noted above. converting the convening

authority's improper withdrawal of charges into

a “de facto dismissal” amounts to an act of

judicial grace. saving the government from its

own error. No gift is totally without cost. of

course. and in this instance our largesse ts

bestowed at the expense of the appellant.

Despite the government s consistent

characterization of its action as “withdrawal” of

the 2001 charges. the majority concludes that

“the government's conduct was consistent with

a dismissal.” and therefore entitled to the same

legal effect. As appellate counsel for the

government put it: “If it walks like a duck. talks

like a duck. and looks like a duck. even if vou

call it a cow. it's still a duck.”

8la

But the disposition of the 2001 charges was

an odd beast. neither fish nor fowl. and therefore

not entitled to the same legal effect as a proper

dismissal. Contrary to the dictates of our

superior appellate court in Britton, — the

government did not investigate and refer the

2002 charges “as though there were no previous

charges or proceedings.” 26 M.J. at 26. Instead.

the Article 32 investigation of the 2002 charges

relied on evidence from the previous hearing

and incorporated by reference the conclusions of

the first investigating officer. The SJA‘s advice

to the general court-martial convening authority

~ The majority opinion suggests the defense

made a “forthright acknowledgement” that there

was nothing wrong with the handling of the

original charges. In fact. however. the

appellant's trial defense counsel merely noted.

ui the context of challenging the disposition of

the 2001 charges. that the four-day period

between preterral of the ortginal charges and the

2001 charges might “arguably” be omitted from

the speedy trial clock for the latter.

~ Indeed. documents in the record of trial show

that the trial counsel continued to reter to the

2001 charges as having been “withdrawn” even

after the appellant's trial.

82a

Including the testimony of five

witnesses from the first proceeding who did not

testify at the second.

recommended referral of the charges with

modifications. subsequently adopted. based on

evidence obtained at the earlier proceeding.

As noted in the majority opinion. the appellant

did not object to the second Article 32 report.

thus waiving any defects in the investigation.

The issue before us. however. 1s not whether the

investigation was defective. but whether it was

c nducted in a manner consistent with the

government's belated claims of dismissal.

Because the government did no/ act in such a

manner. | would reject appellate government

counsel's barnyard analogy and conclude that

there was no proper dismissal. The appellant's

speedy trial right under R.C.M. 707 was

violated.

Ineffective Assistance of Counsel

Service members have a fundamental right to

the effective assistance of counsel at trial by

courts-martial. Lnited States v. Davis. 60 M.J.

469. 473 (C_.A.A.F. 2005) (citing United States

83a

v. Anight. 353 MJ. 340. 342 (C.A.A.F.

2000)). We analyze claims of ineffective

assistance of counsel under the framework

established by the Supreme Court in Strickland

v. Washington. 466 U.S. 668 (1984). Counsel

are presumed to be competent. Where there is a

lapse in judgment or performance alleged, we

ask first whether their conduct of the defense

was actually deficient. and. if so. whether that

deficiency prejudiced the appellant. /d. at 687.

See also United States vy. Polk, 32 M.J. 150. 153

(C.M.A. 1991). The presumption of competence

is rebutted by a showing of factual errors

unreasonable under prevailing professional

norms. The appellant bears the burden of

establishing that his trial defense counsel were

ineffective. United States v. Garcia. 59 M.J.

447. 450 (C.A.A.F. 2004), United States v.

AfcConnell. 55 M.J. 479, 482 (C.A.A.F. 2001).

Here, the appellant's trial defense counsel knew

or should have known of the defects in the

government's disposition of the first two sets of

charges. The appellant's trial defense team was

aware that Capt D withdrew the original

charges. and the second Article 32 report. along

with its recycled witness testimony and

conclusions. was served on the appellant's

counsel on 19 August 2002. The briefs and

84a

arguments of counsel show that both sides

understood the speedy trial issue hinged on

whether the government had properly dealt with

the earlier charges. Indeed. more than half of the

trial transcript revolves around the speedy trial

motion and related discovery matters. This issue

was not peripheral to the appellant's defense: it

was his defense.

According to a post-trial affidavit filed by the

appellant's military trial defense counsel. the

defense team was hampered in proving their

speedy trial claims “without . . . all of the

preferral and referral documents” which. he

reports. the SJA “would not allow us to review.”

Yet the trial defense counsel did not move to

compel production of those documents. either in

the initial Article 39(a) session or in the months

that followed between the — appellant's

arraignment and trial. Instead. according to the

appellant's military trial defense counsel. they

passively waited for “appellate discovery.” Nor

did the trial defense team address the

government s failure to start anew. as required

by Britton. after the purported dismissal of the

2001 charges.

“Familiarity with the facts and applicable law

are fundamental responsibilities of defense

85a

counsel.” Davis. 60 M.J. at 475. The trial

defense team here had ample time to address the

government s pocketing of the original charges

and to compare the trial counsel's “de facto

dismissal” claims with the government's post-

“dismissal” conduct. The record shows that the

trial defense team was so fixated on proving that

the SJA deliberately misled the convening

authority about w/y the charges should be

disposed of that they clearly neglected the more

fundamental question: Did the government

actually dispose of the charges at all? There was

no reasonable strategic or tactical reason for

such neglect. The performance of the trial

defense team “fell measurably below the

performance standards ordinarily expected of

fallible lawyers.” See Polk, 32 M.J. at 153.

Prejudice

On finding that the trial defense team erred. this

Court would ordinarily turn to the question of

prejudice, asking whether there is a reasonable

probability that. absent the error. the appellant

would have received a better result. United

States v. Grigoruk, 52 M.J. 312. 315 (C.A.A.F.

2000). The remedy for a violation of R.C.M.

707 is dismissal of the affected charges. Had the

trial defense team focused on fundamentals. it is

86a

reasonably probable that they would have

secured such a result.

Dismissal under R.C.M. 707 may be with or

without prejudice. Factors to be considered

include the seriousness of the offenses. the facts

and circumstances leading to the dismissal. the

impact of a re-prosecution on the administration

of justice. and any prejudice resulting to the

accused from the denial of his right to a speedy

trial. R.C.M. 707(d). Where appropriate. we rely

on the military judge's findings of fact. but

otherwise evaluate these factors de novo. United

States v. Cooper, 38 M.J. 54. 37-58 (C.ALA.F.

2003). The military judge made no findings on

the first three R.C.M. 707(d) factors: but

examining the record in its entirety. each either

favors dismissal with prejudice or ts neutral.

Three of the four offenses to which the appellant

pled guilty (failure to properly secure his

privately-owned firearms for his last day of

training. using a government computer to

conduct online business. and filing a false travel

voucher) are legitimate offenses under the

UICMJ. but none are so serious as to demand

trial by court-martial as their only disposition. In

fact. the appellant was originally offered

nonjudicial punishment for the travel voucher

offense under Article 15. UCMJ. 10 USC. §

87a

815. but that action was withdrawn when

the additional investigation got underway. The

final charge. which alleges that the appellant. a

Security Forces noncommissioned _ officer.

wrongfully possessed an instrument purporting

to be “Security Police” credentials, does not, on

its face. appear to be a serious offense -- if

indeed it is an offense at all.

The facts and = circumstances supporting

dismissal for speedy trial violations in this case

are grounded entirely in the government's

persistent ineptitude. Having preterred charges

against the appellant no less than four times

already. the government should not rightfully be

heard to complain about being denied a fifth bite

at the apple. Nor would there be any negative

impact on the administration of justice in

bringing this case. finally. to a close.

Concerning the final R.C.M. 707(d) factor.

prejudice to the appellant: The military judge

found that both the appellant and his family

were adversely impacted by the lengthy delay.

Relying on this Court's decision in United

States v. Plants. 37 MJ. 664 (A.F. Ct. Crim.

App. 2002). aff'd. 62 M.J. 397 (C.A.A.F. 2005).

he initially concluded that this impact was not

88a

enough to warrant a_ finding of prejudice.

Subsequent to that ruling. after hearing further

evidence. the military judge found that the

appellant was subjected to “punitive” conditions

of restraint while awaiting trial. See United

States v. Dooley. 61 M.J. 258. 264-65 (C.A.A.F.

2005): see also Plants, 37 M.J. at 667 (citing

Barker y. Wingo, 407 U.S. 514, 532 (1972)

(speedy trial right intended to prevent prejudice

in the form of “oppressive” conditions)). Taking

this additional finding into account. along with

the appellant's unrebutted testimony that he lost

his civilian job while being kept at Peterson

AFB awaiting trial. a majority of this Court --

while disagreeing as to the validity of the

government's “de facto dismissal” claims --

agree that the appellant was prejudiced by the

lengthy delay in bringing him to trial.

Conclusion

For all of the foregoing reasons. | respectfully

dissent.

The appellant was also charged with forging

such credentials. but the appellant pied not

guilty to that offense and the government did

not attempt to prove IL.

89a

This factor was not considered in __ the

military judge's ruling, although he did consider

evidence that. owing to the lengthy trial delay.

the appellant was not promoted in a subsequent

job.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.