United States v. Thompson

UNITED STATES, Appellee

v.

Christine N. THOMPSON, Private
U.S. Army, Appellant

No. 09-0145
Crim. App. No. 20060901

United States Court of Appeals for the Armed Forces

Argued November 10, 2009

Decided February 1, 2010

EFFRON, C.J., delivered the opinion of the Court, in which
BAKER, ERDMANN, and RYAN, JJ., joined. STUCKY, J., filed a
separate opinion concurring in the result.

Counsel

For Appellant: Captain Tiffany K. Dewell (argued); Colonel Mark
Tellitocci, Lieutenant Colonel Matthew M. Miller, and Major
Bradley M. Voorhees (on brief); Captain Melissa E. Goforth
Koenig.

For Appellee: Major Adam S. Kazin (argued); Colonel Norman F.
J. Allen III and Lieutenant Colonel Martha L. Foss (on brief);
Captain Lynn I. Williams.

Military Judge: Charles S. Walters

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Thompson, No. 09-0145/AR

Chief Judge EFFRON delivered the opinion of the Court.

The military judge presiding at Appellant’s general court-

martial granted Appellant’s motion to dismiss the charges with

prejudice, citing a violation of Appellant’s speedy trial rights

under Article 10, Uniform Code of Military Justice (UCMJ), 10

U.S.C. § 810 (2006). The Government appealed that decision to

the United States Army Court of Criminal Appeals under Article

62, UCMJ, 10 U.S.C. § 862 (2006). The Court of Criminal Appeals

reversed the military judge and remanded the case for further

proceedings on the reinstated charges before the general court-

martial. United States v. Thompson, No. ARMY 20060901, 2006 CCA

LEXIS 479, at *18 (A. Ct. Crim. App. Nov. 30, 2008)

(unpublished).

Following remand, the court-martial, consisting of the

military judge sitting alone, convicted Appellant, pursuant to

her pleas, of attempted larceny, three specifications of absence

without leave, six specifications of larceny, and four

specifications of forgery, in violation of Articles 80, 86, 121,

and 123, UCMJ, 10 U.S.C. §§ 880, 886, 921, 923 (2006). The

sentence adjudged by the court-martial and approved by the

convening authority included a bad-conduct discharge and

confinement for ten months.

The United States Army Court of Criminal Appeals affirmed

the findings and sentence in a summary decision. United States

2
United States v. Thompson, No. 09-0145/AR

v. Thompson, No. ARMY 20060901 (A. Ct. Crim. App. Oct. 6, 2008)

(unpublished). On Appellant’s petition, we granted review of

the following issue:

WHETHER THE ARMY COURT ERRED WHEN IT RULED THAT
APPELLANT’S RIGHT TO A SPEEDY TRIAL UNDER ARTICLE
10, UCMJ, WAS NOT VIOLATED.

For the reasons set forth below, we affirm.

I. BACKGROUND

A. PRETRIAL CONFINEMENT AND CASE PROCESSING

1. Chronology

The following summarizes the action on key dates pertinent

to Appellant’s motion to dismiss the charges:

• March 31, 2006: Appellant placed in pretrial
confinement.
• April 6, 2006: Charges preferred against Appellant,
consisting of: (1) two specifications of absence without
leave; and (2) two specifications of larceny related to
the on-post theft of another servicemember’s wallet.
• June 22, 2006: Additional charges preferred, relating to
the use and attempted use of a bank card from the wallet.
• June 23, 2006: Investigation under Article 32, UCMJ, 10
U.S.C. § 832 (2006), ordered by the Special Court-Martial
Convening Authority.
• June 30, 2006: Article 32 hearing scheduled, but delayed
pursuant to two defense requests.
• August 7, 2006: Article 32 hearing held.
• August 9, 2006: Article 32 investigation report
completed.
• August 10, 2006: Article 32 recommendation forwarded to
the General Court-Martial Convening Authority.
• August 17, 2006: General Court-Martial Convening
Authority referral of charges for trial.
• August 18, 2006: Service of charges on Appellant.

3
United States v. Thompson, No. 09-0145/AR

• August 18, 2006: Appellant submits demand for speedy
trial under Article 10, UCMJ, along with a motion to
dismiss the charges for violation of speedy trial rights.
• August 23, 2006: Arraignment and litigation of speedy
trial motion.

2. Litigation of the speedy trial motion

During the hearing on the speedy trial motion, Military

Police Investigator (MPI) Nicholas L. Calabris testified that he

and MPI Joseph W. Lomas conducted two related investigations

regarding Appellant. The investigation by MPI Calabris focused

on the theft of bank cards that were in the wallet, a camera,

and a laptop. The investigation by MPI Lomas addressed

unauthorized use of one of the bank cards. The investigation

into the use of the bank card involved a joint investigation

with civilian law enforcement because the alleged uses of the

bank card occurred off-post.

MPI Lomas testified that he completed his witness

interviews on April 3. He added that difficulties in

coordinating with local law enforcement investigators delayed

completion of the investigation into the off-post use of the

bank card. He attempted to contact the local detective for

approximately thirty to forty days. He was then informed by the

staff judge advocate’s office that he did not need to transfer

any evidence to the civilian police because the military was

prosecuting all of the offenses.

4
United States v. Thompson, No. 09-0145/AR

MPI Calabris testified that his involvement in the

investigation into the theft of the bank cards, camera, and

laptop began on May 9, following deployment of the original

investigator. He stated that the investigative file indicated

that the first investigator had obtained statements from

Appellant and the alleged victims by the end of the first week

of April. He added that the file did not reflect investigative

activity from April 6 until he took over the case on May 9. He

explained that when he took over the investigation, he

determined that he could complete the investigation after

conducting a further interview of Appellant. On May 10, he

concluded that he could not conduct a further interview after

learning that Appellant had retained an attorney.

MPI Calabris testified that he did not close his

investigation on May 10 because he was waiting for MPI Lomas to

close his related investigation. He added that MPI Lomas kept

his case open through May while attempting to contact local

police for the purpose of sharing evidence and information

related to the case.

MPI Lomas closed his investigation on June 2. After

receiving evidence from the civilian police department on May

31, MPI Calabris made a subsequent but unsuccessful attempt to

have further contact with the civilian officials. After not

receiving a response, he closed his investigation on June 26.

5
United States v. Thompson, No. 09-0145/AR

The second trial counsel assigned to Appellant’s case,

Captain Daniel W. Dalrymple, testified that he inherited the

case from the first trial counsel on May 15. He testified that

in an effort to move the case towards trial, he took a number of

actions, including conferring with other trial counsel and

commanders about the case, drafting additional charges,

conducting interviews, coordinating with local civilian

prosecuting and law enforcement officials, and drafting a

referral memorandum for the convening authority.

Appellant testified that she was confined in an isolation

cell in the local county jail. Her cell had no windows or

openings other than a food chute through which she received her

meals. She had no cellmates, no access to television, and

limited access to telephones. Her recreation time was

restricted to once a week. She had access to a library, but not

a law library. She was permitted to leave the county jail under

escort for a brief period to attend her father’s funeral, but

she remained shackled at his funeral. She stated that she did

not receive a chain of command visit while in pretrial

confinement, but she did meet with her military and civilian

counsel.

Following presentation of the evidence, the military judge

granted the defense motion and dismissed all charges and

specifications with prejudice. After the Government filed a

6
United States v. Thompson, No. 09-0145/AR

motion for reconsideration, the military judge held a further

hearing, allowing the Government to present testimony from two

additional witnesses in support of the motion for

reconsideration.

The initial trial counsel assigned to the case, Captain

Daniel Myers, who was replaced by Captain Dalrymple as his unit

prepared for deployment, testified as to his workload during the

period in which he had exercised responsibility for the case.

He stated that he worked seventy to eighty hours per week during

that period. He had three cases docketed for trial between

March 31 and May 15, and he had a motions hearing for another

case during this time period. He also spent four days on

temporary duty assignment for a training course, adding that he

had requested excusal from the training, but his request was

denied. He took leave in conjunction with that trip, which was

extended due to bad weather. He also spent approximately six to

eight hours completing pre-deployment paperwork. With respect

to Appellant’s case, he stated that he had responded in early

April to a defense inquiry as to the status of the

investigation. He also made telephone calls and sent e-mails

with regard to transferring Appellant to a different command and

resolving a resultant pay problem. He stated that he did not

proceed towards trial with the charges preferred on April 6

because he was waiting for the investigation of the other

7
United States v. Thompson, No. 09-0145/AR

suspected offenses to be completed to ensure that all offenses

were prosecuted in one court-martial.

The Chief of Justice for III Corps, Lieutenant Colonel

Steven M. Brodsky, testified that Captain Myers and the three

other trial counsel serving in his office were “extremely busy”

during the spring of 2006. He testified that Captain Myers

worked on a particularly demanding court-martial at the time.

Lieutenant Colonel Brodsky stated that he could not transfer any

of Captain Myers’s cases to another trial counsel because the

office was understrength at the time and all his prosecutors

were very busy.

Following the hearing, the military judge denied the

Government’s motion for reconsideration, concluding that the

Government had failed to exercise reasonable diligence during

the thirty-seven day period from April 8, 2006, through May 14,

2006 -- the day prior to the assignment of the second trial

counsel, Captain Dalrymple, to the case. In denying the motion,

the military judge reaffirmed his earlier ruling dismissing the

charges with prejudice.

B. SUBSEQUENT PROCEEDINGS

The Court of Criminal Appeals reversed the military judge,

vacated the dismissal of charges, and returned the case to the

military judge for further proceedings. Thompson, 2006 CCA

LEXIS 479, at *18. Before the court-martial reconvened,

8
United States v. Thompson, No. 09-0145/AR

Appellant entered into a pretrial agreement which included a

statement that she agreed to:

[v]oluntarily waive all motions which can be
waived under applicable statutes, caselaw, and
public policy. I further agree that, as of the
date of this Offer, I have not been confined
under unduly rigorous circumstances during
pretrial confinement, nor have I been treated in
a manner so excessive as to constitute punishment
under Article 13 of the UCMJ.

During the ensuing plea inquiry, the military judge expressed

concern that the second sentence in the provision might render

the plea improvident. He noted that while Appellant could waive

any motion for pretrial punishment credit under Article 13, the

factual assertions in the second sentence of the provision

appeared to be inconsistent with her prior testimony about

confinement and his findings of fact about the conditions of

confinement, which had not been overturned during the Article 62

interlocutory appeal. Trial counsel agreed “that there’s at

least a basis for an Article 13 credit motion,” and that the

purpose of the sentence in the agreement was to memorialize

Appellant’s waiver of the motion. During further colloquy with

the parties, the military judge clarified that he would permit

Appellant to agree to waive any Article 13 motion, but that he

would treat the second sentence of the provision as being

“stricken out of your offer.” Appellant then agreed to waive

any Article 13 motion. The military judge then accepted

9
United States v. Thompson, No. 09-0145/AR

Appellant’s plea, and the trial proceeded to completion. We now

consider Appellant’s Article 10 speedy trial claim on direct

review.

II. DISCUSSION

A. SPEEDY TRIAL REVIEW UNDER ARTICLE 10

When a servicemember is placed in pretrial confinement,

“immediate steps shall be taken” to inform the accused of the

charges and to either bring the accused to trial or dismiss the

charges. Article 10, UCMJ. “We have consistently noted that

Article 10 creates a more exacting speedy trial demand than does

the Sixth Amendment.” United States v. Mizgala, 61 M.J. 122,

124 (C.A.A.F. 2005) (citations omitted). The procedural

framework for analyzing Article 10 issues examines the length of

the delay, the reasons for the delay, whether the accused made a

demand for a speedy trial, and prejudice to the accused. Id. at

129. Although the procedural framework is derived from the

Sixth Amendment test set forth by the Supreme Court in Barker v.

Wingo, 407 U.S. 514 (1972), we have emphasized that because

Article 10 imposes a more stringent speedy trial standard than

the Sixth Amendment, “Sixth Amendment speedy trial standards

cannot dictate whether there has been an Article 10 violation.”

Mizgala, 61 M.J. at 127; see id. at 129 (noting that the

10
United States v. Thompson, No. 09-0145/AR

military judge erred in limiting consideration of the procedural

framework to a Sixth Amendment analysis).

We use the procedural framework to analyze Article 10

claims under the “immediate steps” standard of the statute and

the applicable case law. See id. at 124. Article 10 does not

require “constant motion, but reasonable diligence in bringing

the charges to trial.” United States v. Cossio, 64 M.J. 254,

256 (C.A.A.F. 2007) (citations and quotation marks omitted).

“Short periods of inactivity are not fatal to an otherwise

active prosecution.” Mizgala, 61 M.J. at 127. In conducting

our analysis, “we remain mindful that we are looking at the

proceeding as a whole and not mere speed.” Id. at 129. We

conduct our review de novo, giving substantial deference to the

military judge’s findings of fact unless they are clearly

erroneous. Id. at 127.

B. APPLICATION OF THE PROCEDURAL FRAMEWORK

The length of delay constitutes a “triggering mechanism”

under Article 10. Cossio, 64 M.J. at 257 (holding that a 117-

day period of pretrial confinement triggered the full Article 10

inquiry) (citation and quotation marks omitted). Under Cossio,

the 145-day period Appellant spent in pretrial confinement is

sufficient to trigger an Article 10 inquiry.

When ruling on Appellant’s Article 10 motion in this case,

the military judge noted that within the 145-day period, thirty-

11
United States v. Thompson, No. 09-0145/AR

nine days were a result of defense-requested delays, leaving 106

days attributable to the Government. Within the 106-day period

attributable to the Government, the military judge limited his

conclusion regarding unreasonable delay under Article 10 to the

thirty-seven day period between April 8, 2006, and May 14, 2006.

At trial, the prosecution asserted that the thirty-seven

day period did not constitute unreasonable delay in light of:

(1) the difficulties encountered by the military police in

coordinating with the civilian detective, and (2) the heavy

workload of trial counsel. The military judge held that the

Government’s reasons for the delay were inadequate. The

military judge concluded that no meaningful investigation

occurred during the thirty-seven day period. The military judge

noted, however, that some police activity occurred during this

period, including “a furtive attempt to question a represented

accused; and fitful, initially misguided, attempts to pass

existing evidence between military and civilian authorities.”

The military judge rejected the Government’s argument with

regard to trial counsel’s caseload, concluding that the

Government’s generalized claims of inadequate personnel did not

constitute a legitimate reason for the delay.

The Court of Criminal Appeals held that the Government’s

justifications for the delay were sufficient. Thompson, 2006

CCA LEXIS 479, at *14-*16. In reaching this conclusion, the

12
United States v. Thompson, No. 09-0145/AR

Court found that much of the delay during the thirty-seven day

period was a result of confusion as to whether civilian or

military authorities would prosecute the off-post offenses. Id.

at *14. The Court also noted other factors affecting the

prosecution, including testimony about the simultaneous

responsibilities of the trial counsel for other cases and the

understaffing of the office. Id. at *16.

In Mizgala, we emphasized the need to look “at the

proceeding as a whole.” 61 M.J. at 129. In so doing, we

treated the procedural framework as an integrated process,

rather than as a set of discrete factors. We emphasized that

“constant motion is not the standard so long as the processing

reflects reasonable diligence under all the circumstances.” Id.

In taking that approach, we noted:

The processing of this case is not stellar.
We share the military judge’s concern with
several periods during which the Government seems
to have been in a waiting posture . . .
[including] waiting for a release of jurisdiction
for an offense that occurred in the civilian
community [and] . . . periods evidencing delay in
seeking evidence of the off-post offense . . . .

Id.

In viewing the procedural framework as a whole, we observe

that the present case, like Mizgala, reflects processing by the

Government that was not stellar, particularly in terms of the

delays in contacting and coordinating with civilian officials.

13
United States v. Thompson, No. 09-0145/AR

As a general matter, factors such as staffing issues,

responsibilities for other cases, and coordination with civilian

officials reflect the realities of military criminal practice

that typically can be addressed by adequate attention and

supervision, consistent with the Government’s Article 10

responsibilities. As in Mizgala, however, we do not consider

the thirty-seven day period in isolation, but also consider the

“proceeding as a whole,” including the general movement forward

during the full range of the pretrial period in this case, as

well as the fact that some Government activity took place during

the thirty-seven day period. We also take into account the fact

that Appellant did not make a speedy trial request during the

entire pretrial day period addressed by the military judge. She

delayed making a request until 141 days after she was placed in

pretrial confinement. See United States v. Birge, 52 M.J. 209,

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

In considering the matter of prejudice, we note that

Appellant has not alleged either impairment of her defense or

particularized anxiety or concern caused by the delay. See

Mizgala, 61 M.J. at 129. With respect to prejudice from the

conditions of her incarceration, we note that although the

record establishes negative aspects of her confinement

conditions, a number of considerations weigh against concluding

that the conditions were “oppressive” for purposes of prejudice

14
United States v. Thompson, No. 09-0145/AR

under Article 10. See id. First, Appellant did not raise any

kind of formal or informal complaint about her confinement

conditions or otherwise request a change in conditions during

the period at issue, and she has not alleged that she was

precluded from doing so. Moreover, after the Army Court of

Criminal Appeals reinstated the charges, Appellant entered into

a pretrial agreement that expressly waived her ability to assert

a claim for relief under Article 13 for illegal pretrial

confinement conditions. Although her waiver of any Article 13

claim did not waive her Article 10 claim for speedy trial

relief, we may consider that circumstance as a relevant factor

bearing upon the question of prejudice for oppressive

confinement, particularly in a case where she raised no prior

complaints as to her confinement conditions.

We balance the foregoing considerations concerning length

of delay, reasons for delay, absence of a speedy trial request,

and potential prejudice in the context of the proceedings as a

whole. We conclude that the Court of Criminal Appeals did not

err, under the specific circumstances of this case, in rejecting

Appellant’s claim that the processing of this case violated

Article 10 in view of the limited period of time at issue --

thirty-seven days; a record that does not establish Government

indifference or substantial inactivity over the full course of

the pretrial proceeding; and Appellant’s failure to demonstrate

15
United States v. Thompson, No. 09-0145/AR

prejudice in terms of oppressive confinement, as reflected in

the absence of pretrial complaints about confinement conditions

and Appellant’s subsequent entry into a pretrial agreement

waiving any Article 13 claim for illegal pretrial confinement

conditions.

III. DECISION

The decision of the United States Army Court of Criminal

Appeals is affirmed.

16
United States v. Thompson, No. 09-0145/AR

STUCKY, Judge (concurring in the result):

I concur in the result, but write separately to express my

conclusion that, under these facts, the delay was not

“presumptively prejudicial” and, therefore, did not trigger

further inquiry under Barker v. Wingo, 407 U.S. 514, 530-31

(1972).

This Court has “consistently noted that Article 10 creates

a more exacting speedy trial demand than does the Sixth

Amendment,” United States v. Mizgala, 61 M.J. 122, 124

(C.A.A.F. 2005), without ever explaining the basis for this

conclusion. In our earliest decision on this issue, we stated

that the congressional hearings on the Uniform Code of Military

Justice (UCMJ) “clearly indicate that Congress did not intend

the military practice [concerning speedy trial under Article 10,

UCMJ, 10 U.S.C. § 810 (2000)] to be different from the regular

Federal criminal court procedure.” United States v. Hounshell,

7 C.M.A. 3, 7, 21 C.M.R. 129, 133 (1956) (applying Sixth

Amendment jurisprudence). However, in United States v. Burton,

we “assume[d] for present purposes that the requirements of

Article 10 are more rigorous,” 21 C.M.A. 112, 117, 44 C.M.R.

166, 171 (1971), and adopted a presumption that Article 10,

UCMJ, was violated by any pretrial confinement that exceeded

three months. Id. at 118, 44 C.M.R. at 172. Since then, this

Court has continued to state that “Article 10 as construed by
United States v. Thompson, No. 09-0145/AR

this Court demands more expeditious military trials than does

the Constitution.” United States v. Marshall, 22 C.M.A. 431,

434, 47 C.M.R. 409, 412 (1973); accord Mizgala, 61 M.J. at 124.

At the time the UCMJ was enacted, it was unclear whether

the Bill of Rights applied to courts-martial at all. See Reid

v. Covert, 354 U.S. 1, 37 (1957) (dictum); compare Gordon D.

Henderson, Courts-Martial and the Constitution: The Original

Understanding, Bicentennial Issue Mil. L. Rev. 141 (1975), with

Frederick Bernays Wiener, Courts-Martial and the Bill of Rights:

The Original Practice, Bicentennial Issue Mil. L. Rev. 171

(1975). That may explain why the drafters explicitly provided

similar, though often superior, rights in the UCMJ. See Article

27, UCMJ, 10 U.S.C. § 827 (2000) (right to counsel); Article 31,

UCMJ, 10 U.S.C. § 831 (2000) (right against self-incrimination);

Article 44, UCMJ, 10 U.S.C. § 844 (2000) (double jeopardy);

Article 55, UCMJ, 10 U.S.C. § 855 (2000) (cruel and unusual

punishment). Similarly, Article 10, UCMJ, provides an accused

the right to a speedy trial guaranteed to civilians by the Sixth

Amendment. While I am not convinced that Article 10, UCMJ, does

embody a stricter standard than the Sixth Amendment, that

question need not be answered to decide this case. Under either

the Sixth Amendment standard or one imposing some sort of

heightened scrutiny, the delay in this case was insufficient to

trigger an inquiry under Barker.

2
United States v. Thompson, No. 09-0145/AR

The majority states that it analyzes Article 10, UCMJ,

violations using the procedural framework established by the

Supreme Court in Barker for reviewing Sixth Amendment speedy

trial claims, but then asserts that “‘Sixth Amendment speedy

trial standards cannot dictate whether there has been an Article

10 violation.’” United States v. Thompson, __ M.J. __ (10)

(quoting Mizgala, 61 M.J. at 124). By doing so, in the context

of tacitly ignoring the fundamental initial steps of the Barker

process, the majority fails to set out what, if anything, the

elevated Article 10, UCMJ, standard amounts to.

To trigger a Barker inquiry, the delay must be

“presumptively prejudicial.” 407 U.S. at 530. Whether a delay

is “presumptively prejudicial” “is necessarily dependent upon

the peculiar circumstances of the case. To take but one

example, the delay that can be tolerated for an ordinary street

crime is considerably less than for a serious, complex

conspiracy charge.” Id. at 530-31. Instead of considering the

seriousness and complexity of Appellant’s case, and the

substantial effect of heavy operational demands on personnel,

the majority finds the 145-day pretrial confinement period

sufficient to trigger a speedy trial inquiry by referencing

another case in which the Court held that a 117-day period of

pretrial confinement triggered the Article 10, UCMJ, inquiry.

__ M.J. __ (11) (citing United States v. Cossio, 64 M.J. 254,

3
United States v. Thompson, No. 09-0145/AR

257 (C.A.A.F. 2007)). In Cossio, without examining the

seriousness or complexity of the charges, the Court concluded

that a Barker inquiry was triggered by the 117-day delay where

the accused had moved for a speedy trial. Cossio, 64 M.J. at

257.

Of the 145 days Appellant spent in pretrial confinement, 39

days were as a result of defense-requested delays. Considering

the complexity and seriousness of the charges -- theft of a bank

card and other items and misuse of the bank card in the civilian

community that involved a joint investigation with civilian

authorities -- and the fact that operational demands

necessitated the appointment of four successive trial counsel, I

conclude that the 106 days attributable to the Government that

Appellant spent in pretrial confinement were not “presumptively

prejudicial” and, therefore, did not trigger the need for a

Barker inquiry.

4