United States v. Tippit

                         UNITED STATES, Appellee

                                         v.

                  Robert D. TIPPIT, Staff Sergeant
                      U.S. Air Force, Appellant

                                  No. 06-0914
                           Crim. App. No. 35624

       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
and STUCKY, JJ., joined. RYAN, J., filed a separate opinion
dissenting in part, concurring in part, and concurring in the
result. ERDMANN, J., filed a dissenting opinion.


                                     Counsel


For Appellant: Captain Vicki A. Belleau (argued); Lieutenant
Colonel Mark R. Strickland (on brief).

For Appellee: Captain Donna S. Rueppell (argued); Colonel
Gerald R. Bruce and Major Matthew S. Ward (on brief); Lieutenant
Colonel Robert V. Combs.



Military Judge:    Kurt D. Schuman



            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Tippit, No. 06-0914/AF


      Chief 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 wrongful possession of

United States Air Force Security Police credentials to the

prejudice of good order and discipline, in violation of Articles

92, 132, and 134, Uniform Code of Military Justice (UCMJ), 

10 U.S.C. §§ 892

, 932, 934 (2000).    The sentence adjudged by the

court-martial and approved by the convening authority included a

bad-conduct discharge, confinement for forty-seven days, and

reduction to the grade of E-1.    The United States Air Force

Court of Criminal Appeals affirmed.    United 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 July 14, 2006) (unpublished).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.1    For the reasons set forth below, we


1
    We granted review of the following issues:

       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.

       II. WHETHER THE MILITARY JUDGE ERRED IN FINDING THAT
       APPELLANT WAS NOT DENIED THE RIGHT TO A SPEEDY TRIAL
       UNDER ARTICLE 10, UCMJ.

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United States v. Tippit, No. 06-0914/AF


hold that Appellant has not demonstrated error with respect to

speedy trial, the effective assistance of counsel, or the

providency of his plea.


                           I.   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 day of his inactive duty

training tour, Appellant prepared to return to civilian life.

He parked his truck near the Security Forces office, his duty

location.   At that time, Security Forces personnel were

conducting an exercise, and a dog trained in bomb detection

alerted on Appellant’s truck.    Appellant consented to a search

of the vehicle, which yielded a cache of firearms, ammunition,

and related items.

     The search led to an investigation by the Air Force Office

of Special Investigations (AFOSI).    Appellant’s tour of duty was

extended, and he was placed under restriction until August 1,




     III. WHETHER APPELLANT RECEIVED INEFFECTIVE
     ASSISTANCE OF COUNSEL WHEN HIS TRIAL DEFENSE COUNSEL
     DID NOT INFORM HIM THAT AN UNCONDITIONAL GUILTY PLEA
     WAIVED THE SPEEDY TRIAL ISSUE UNDER R.C.M. 707.

     IV. WHETHER APPELLANT’S PLEA WAS IMPROVIDENT WHERE IT
     WAS ENTERED UPON THE MISTAKEN BELIEF THAT HIS R.C.M.
     707 SPEEDY TRIAL ISSUE WOULD BE PRESERVED FOR APPEAL.

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United States v. Tippit, No. 06-0914/AF


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 any such charges.

During subsequent litigation at trial, the prosecution indicated

that the September 6, 2001 charges were “withdrawn” shortly

after preferral, on September 10, 2001, because of an

unspecified “administrative error.”     The defense did not

litigate the content or disposition of the September 6 charges

at trial.    Although Appellant has alleged that the trial defense

team was ineffective for not addressing the September 6 charges,

see infra Part III.B.1., his appellate submissions do not

provide further information about the content or disposition of

the September 6 charges, nor do such submissions allege that

government personnel involved in the processing of such charges

were unwilling or unable to provide such information during the

appellate proceedings.




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United States v. Tippit, No. 06-0914/AF


     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 11, 2001, the Special Court-Martial Convening

Authority ordered an investigation under Article 32, UCMJ, 

10 U.S.C. § 832

 (2000).   As a result of force protection conditions

surrounding the national events of September 11, 2001, the

investigation was delayed for a week.   The defense requested and

was granted further delays until October 10, 2001.   The Article

32 hearing, which began on October 10 and ended on October 12

considered the charges preferred on September 10, as well as the

additional charge preferred on October 10.   The Article 32

investigating officer submitted his report to the Special Court-

Martial Convening Authority on October 24, 2001.    The report

recommended trial by general court-martial on the charges that

had been preferred on September 10 and October 10.

     While the Article 32 investigating officer’s recommendation

was awaiting disposition by the Special Court-Martial Convening

Authority, the AFOSI conducted a further investigation,

including a search of Appellant’s home computer.    On October 31,

2001, an AFOSI agent requested a forensic analysis of the



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United States v. Tippit, No. 06-0914/AF


computer by another AFOSI office.     The agent included the

following notation in the request:    “[d]ue to a legal mistake,

SUBJECT [Appellant] was brought onto active duty under the wrong

orders and now his status must be approved by SECAF [Secretary

of the Air Force].   The legal office must now drop all charges

and refile (the original Article 32 has already been

completed).”

     On November 2, 2001, the staff judge advocate (SJA)

provided the Special Court-Martial Convening Authority with a

memorandum regarding Appellant’s case entitled “Recommendation

to Withdraw Charges.”   After noting the Article 32 investigating

officer’s recommendation for trial by general court-martial, the

SJA recommended that “the charges be withdrawn at this time.”

The SJA stated that “a joint federal law enforcement

investigation is ongoing,” that AFOSI had developed information

from “very reliable sources” about “significant weapons related

offenses” involving Appellant “and gun dealers,” and that this

information would put the charged offenses “into proper

context.”   The SJA added:   “[w]ithdrawing the charges now will

not prohibit re-preferral at a later time -- in approx [sic]

three months as this investigation is 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


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United States v. Tippit, No. 06-0914/AF


subordinate commander for disposition, (3) Refer charges to a

summary or special court-martial, or (4) Forward the Article 32

report with the charges, to the superior commander . . . for

disposition.”    The SJA recommended that the convening authority

authorize the SJA “to withdraw charges by lining through the

charge sheet.”    The convening authority wrote “concur” and his

initials on the memorandum.   On November 6, 2001, the SJA lined

out all charges and specifications on the charge sheet, adding

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

lines.

              C. ACTIONS FOLLOWING DISPOSITION OF THE
         SEPTEMBER 10, 2001, AND OCTOBER 10, 2001, CHARGES

     Shortly thereafter, the group support commander informed

Appellant that the charges had been “dropped.”    The legal office

provided defense counsel with a copy of the charge sheet with

the September 10, 2001 and October 10, 2001 charges lined out.

The legal office did not provide defense counsel with a reason

for this action.   Defense counsel showed the document with the

lined out charges to Appellant and told him that the charges had

been dismissed.    On November 6, 2001, the same day that the

charges were lined out, Appellant was released from active duty

and permitted to return to his home in Arizona.   AFOSI continued

its investigation, but no constraints were placed upon

Appellant’s resumption of civilian life.



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United States v. Tippit, No. 06-0914/AF


                       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 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


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United States v. Tippit, No. 06-0914/AF


Court-Martial Convening Authority referred the charges to a

general court-martial on September 21, 2002.

                E.   APPELLANT’S SPEEDY TRIAL MOTION

1.   Options for litigating speedy trial issues

     In the present appeal, the parties have addressed the right

to a speedy trial under three different sources of law -–

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 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 M.J. 449, 451-52

 (C.A.A.F. 1995).   The

defense has not alleged a due process violation in the present

appeal.




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United States v. Tippit, No. 06-0914/AF

      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.”   See also United States v. Powell, 

2 M.J. 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, 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 is “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


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United States v. Tippit, No. 06-0914/AF

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

charges.    R.C.M. 707(b)(3)(A)(i).

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 with the right to a

speedy trial, but did not explain how the processing of

Appellant’s case violated the Sixth Amendment.     The defense 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)(i).


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United States v. Tippit, No. 06-0914/AF

     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 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 court-

martial, 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 and now his status must be
     approved by SECAF [the Secretary of the Air Force].


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United States v. Tippit, No. 06-0914/AF

     The legal office must now drop all charges and refile
     . . . .

     According to the defense, the AFOSI 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 trying 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 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



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United States v. Tippit, No. 06-0914/AF

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 his 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 present case had not been referred to a court-

martial 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


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United States v. Tippit, No. 06-0914/AF

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 2001

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.    He calculated

that 104 days elapsed from that date to arraignment on the 2002

charges.    Accordingly, he concluded that Appellant’s 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.


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United States v. Tippit, No. 06-0914/AF

                              II.    WAIVER

      Under R.C.M. 707(e), 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 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 concerning ineffective assistance of counsel and the

providence of Appellant’s plea.      See infra Parts III 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


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United States v. Tippit, No. 06-0914/AF

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

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 address briefly a potential


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United States v. Tippit, No. 06-0914/AF

issue, not 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 

61 M.J. at 127

; see also United States v. Sloan, 

22 C.M.A. 587, 590

, 

48 C.M.R. 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 infra Parts III and IV.



                   III.   ASSISTANCE OF COUNSEL

     Appellant claims that his trial defense team was deficient

in the following respects:   (1) failure to challenge the

disposition of the initial 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 issue; and (3) failure to focus the

speedy trial claim on Article 10.    The Government disputes

factual and legal aspects of Appellant’s claims.


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                      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” 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 is reliable.’”      United States

v. Moulton, 

47 M.J. 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


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United States v. Tippit, No. 06-0914/AF

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 M.J. 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 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).




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                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 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 hurdle 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


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United States v. Tippit, No. 06-0914/AF

content of the September 6, 2001, charges, whether the document

containing those charges constituted a legally sufficient

preferral, see R.C.M. 307, and the official nature of any

subsequent action on those charges are all undocumented.     See,

e.g., R.C.M. 401.   There is no September 6, 2001 charge sheet in

the record and there is no 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

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

.


                                22
United States v. Tippit, No. 06-0914/AF

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 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 they 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



                                  23
United States v. Tippit, No. 06-0914/AF

period, the SJA provided the Special 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.

     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 --


                                24
United States v. Tippit, No. 06-0914/AF

“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 “withdrawn” 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 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


                                  25
United States v. Tippit, No. 06-0914/AF

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 from 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 in his memorandum, so there is 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 referred to a court-

martial in the introductory sentence of R.C.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 “re-

preferral” –- an action that is required after charges are


                                26
United States v. Tippit, No. 06-0914/AF

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 I.C., 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


                                 27
United States v. Tippit, No. 06-0914/AF

circumstances of this case, 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 is restarted.”     United States v. Anderson, 

50 M.J. 447, 448

 (C.A.A.F. 1999).   Here, Appellant contends that

even if the convening authority dismissed the September 10, 2001

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:    “[i]nformation

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 that the

charges could be re-preferred “at a later time -- in

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.”




                                 28
United States v. Tippit, No. 06-0914/AF

     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 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

misinformed 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


                                29
United States v. Tippit, No. 06-0914/AF

or several parallel investigations.   In the circumstances of the

present case, the existence of parallel 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

office must now drop all charges and refile (the original

Article 32 already has been completed).”   The military judge,


                               30
United States v. Tippit, No. 06-0914/AF

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 in the AFOSI memorandum, without more, did not support

a finding that the 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,




                                 31
United States v. Tippit, No. 06-0914/AF

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 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.


                                 32
United States v. Tippit, No. 06-0914/AF

     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.

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.1.   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


                                33
United States v. Tippit, No. 06-0914/AF

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 III.B.2., supra, does not necessarily resolve the claim

under Article 10.    See United States v. Kossman, 

38 M.J. 258, 261

 (C.M.A. 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 2001

to argue that there was a lack of reasonable diligence in terms


                                 34
United States v. Tippit, No. 06-0914/AF


of the length of delay and the reasons for the delay.     As

discussed in Part III.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 ongoing investigation was known, Appellant has

not demonstrated that the Government failed to proceed with

reasonable diligence, either with 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 is reviewed for an abuse of discretion.”

United States v. Eberle, 

44 M.J. 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.


                                 35
United States v. Tippit, No. 06-0914/AF

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 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 “‘ [i]n 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 III.B.2., III.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


                                 36
United States v. Tippit, No. 06-0914/AF

Appellant has failed to demonstrate that his plea was

improvident.



                          V.    DECISION

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




                                 37
United States v. Tippit, No. 06-0914/AF

    RYAN, Judge (dissenting in part, concurring in part, and

concurring in the result):

    For the reasons set forth in Judge Erdmann’s separate

opinion, I 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, I nonetheless concur in the result.

    First, I agree with the majority’s conclusion that, pursuant

to Rule for Courts-Martial (R.C.M.) 707(e), Appellant, by

pleading guilty, waived any claim under R.C.M. 707.

    Second, I 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

United States v. Mizgala, 

61 M.J. 122, 127

 (C.A.A.F. 2005)

(requiring a defendant to litigate an Article 10, UCMJ, claim

prior to pleading guilty 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 I agree with Judge Erdmann that the

“withdrawal” of charges was a nullity, I 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.

    I 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
United States v. Tippit, No. 06-0914/AF

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 v. 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 U.S. 514, 530-33

 (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, I concur in the result.




                                   2
United States v. Tippit, No. 06-0914/AF


     ERDMANN, Judge (dissenting):

     Because the convening authority’s November 6, 2001, action

did not dismiss the charges or stop the speedy trial clock, I

respectfully dissent.

     The Uniform Code of Military Justice and the Manual for

Courts-Martial (MCM) establish a unique system of justice.      As a

result, actions taken in the military justice system often have

unique meanings and effects.   “Dismissal” and “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 I 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
United States v. Tippit, No. 06-0914/AF


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 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, I agree with the

majority that Tippit’s unconditional guilty pleas waived the

Sixth Amendment and R.C.M. 707 speedy trial issues.   However, in

the context of this case and as framed by the parties at trial,

I 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 defense’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


                                  2
United States v. Tippit, No. 06-0914/AF


Article 10, UCMJ, had not been violated.    In turn, 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, UCMJ, speedy trial issue at trial

and preserves the matter for appellate review.    Mizgala, 

61 M.J. at 127

.    Just as the Court of Criminal Appeals did, I would

proceed to review Tippit’s Article 10, UCMJ, 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

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 v. Wingo, 

407 U.S. 514

,




                                   3
United States v. Tippit, No. 06-0914/AF


530 (1972); United States v. Birge, 

52 M.J. 209, 212

 (C.A.A.F.

1999)).

     Although there may have been some complexity involved in

the forensic investigation of this case, I conclude that this

delay was unjustified and well beyond that which can be

considered reasonably necessary.       Tippit demanded a speedy 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

family 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 I find

prejudicial.   See 

id.

 (citing Barker, 

407 U.S. at 532

).

     I 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, I 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, I would not reach


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United States v. Tippit, No. 06-0914/AF


the ineffective assistance of counsel claim or the providence of

Tippit’s guilty pleas.




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