United States v. Leonard

COUGHLIN, Judge

(dissenting):

The basis for the majority’s decision is apparently twofold: the plain language of the Executive Order, and the radical change in the speedy trial law effectuated by the implementation of R.C.M. 707. In dissenting, I also look to the plain wording and meaning of the Order and, in so doing, can only reach a contrary interpretation. The second prong of the majority’s rationale is not relevant to an interpretation of the point in time R.C.M. 707 is effective. Many of the new rules depart radically from past practice, some more favorable to the Government, some to the accused. Such an unwieldy guidepost would create an unnecessary ambiguity in ascertaining the effective date of any particular rule in the new Manual. Fortunately, the President set forth a date certain for us to go by.

Pursuant to the authority granted in Article 36, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 836, the President promulgated Executive Order 12473, putting into effect the provisions contained in the Manual for Courts-Martial, 1984 (MCM 1984), on 1 August 1984, except as otherwise specifically provided therein. The President thus supplied the date when the old provisions would no longer apply and when new rules would come into being. Since this accused was arraigned subsequent to 1 August 1984, and none of the exceptions set forth in the Executive Order apply, this Court is bound to give full effect to R.C.M. 707 mandating the dismissal of this case for lack of speedy trial in that he was not brought to trial within 120 days after he was notified of the preferral of charges against him.

The majority finds, that “the President clearly intended R.C.M. 707(a) to take effect on that date” of 1 August, but then denies the relief accorded thereby by ascertaining the Presidential intent as solely prospective in nature. Yet, such an intent neither appears nor is consistent with the plain wording of the Executive order that states the new Manual provisions “shall take effect on August 1, 1984, with respect to all court-martial processes taken on or after that date____” The word “shall” is generally construed to mean imperative and mandatory, and it particularly should be so construed where a right of the accused is impaired by a different interpretation. Accordingly, as of 1 August 1984, by order of the President, the accused was entitled to the full and meaningful application of the new right to a speedy trial contained in R.C.M. 707. The accused made timely motion to dismiss, the military judge so ordered, and we should thus be constrained to uphold that ruling as a matter of law, notwithstanding Government arguments to the contrary.

The issue before this Court was particularly well argued by both trial-level and appellate counsel. Although not dealt with in the majority opinion, one of the arguments forcefully advanced and countered by opposing counsel deserving of comment concerns the reference in R.C.M. 707 to R.C.M. 308. The argument may be thusly stated: Since R.C.M. 707 provides that the 120 days starts to run upon notification of the accused of the preferral of charges under R.C.M. 308, it is inapplicable to this case wherein the accused was so notified under the 1969 Manual provision in effect at the time. Rule 308 is not a new rule, however, but essentially a restatement of paragraphs 32 /(1) and 33c of Manual for Courts-Martial, 1969 (Rev.). Additional notification of the preferral under 1984 Manual was not required after 1 August *593to start the running of the 120 days. To conclude otherwise, would postpone the operative date of R.C.M. 707 for some 4 months after the declared date in the Executive Order. This we should not do unless the stated reference to R.C.M. 308 could have no other reasonable explanation. Yet, an alternative explanation is inherently reasonable; that is, internal consistency in the new Rules. The Rules neither generally nor in the particular refer back to the old Manual provisions. In fact, the Executive Order specifically states that the 1969 Manual is rescinded, effective August 1, 1984. Under such circumstances, R.C.M. 707 necessarily references R.C.M. 308 rather than paragraph 32/(1) of the rescinded Manual. It is the act of notification that starts the running of the 120-day rule, not the new title of the provision under which it is provided.

Finally, had the President really intended to provide that Rule 707 only apply to cases in which the accused was notified of the preferral subsequent to 1 August, it would have been a comparatively easy matter to have indicated this intention expressly and with clarity. The plain wording of the Executive Order, however, is to the contrary.

Accordingly, I would deny the Government appeal and uphold the military judge in granting the defense motion to dismiss the charges in accordance with R.C.M. 707.