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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2007

## Text

if Supreme Co
A FIL pur U.S.

07-318 SEP 10 2007
OFFIC
— E OF THE CLERK

en [!
de

SU tt
IN THE

Supreme Court of the United States

STAFF SERGEANT ROBERT D. TIPPIT,

Petitioner
y.

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
SV CPCS BOW WR, VEEP cc cusavcvervesheresuisisvesinese 2
TR Bie Bt. ety, . | AAR Reenn Nemmnneie se 2
REASONS FOR GRANTING THE WRIT.......... 1S
Re IT sictesesichasiss piv casedeaienctomias tata 38

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.

OE WES. TZ2 CAA, LOOP icccccccicccccsrscenee du de
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)

>» 9
2 ae

Federal Statutes

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NS ME MI cities vivre iustesuiamoesletvabsiaansscenel aban I

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

4

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

5
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

5
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.

8
only 83 days should be excluded. leaving a total
of 353 days tor speedy trial purposes. See App. Ex.
I.

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

9
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

10
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

1
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

12
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

13
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

l4

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

15
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

16
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

17

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

18
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

19
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

20

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.

21
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

7?

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.

Ne
pe

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.

24

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

25
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.

26

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

27

“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.

28

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.

29

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

30

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.

3]

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

32
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.

33
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).

34

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

35

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

36

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

37
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.

38
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
v.
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.

a

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-

3a
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

da
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

Sa
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

6a

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

7a

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). ~

8a

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 . . .

9a

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
v.
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:
I.
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.
I.
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
4

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

o
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
7

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
error

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1430%3A1. Public record. Not legal advice.