## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before HOLDEN, HOFFMAN, and SULLIVAN Appellate Military Judges

UNITED STATES, Appellee

v. Private E2 JARRO D R. MCCLAIN United States Army, Appellant

ARMY 20051215 an d ARMY 20051331

7th Infantry Divisi on and Fort Carson Michael J. Hargis, Military Judge Colonel Kent R. Meyer, Staff Judge Advocate

For Appellant: Colonel John T. Phelps, II, JA; Lieutenant Colonel Steven Henricks, JA; Major Fansu Ku, JA; Captain Pa trick B. Grant, JA (on brief).

For Appellee: Colonel John W. Miller, II, JA; Major Elizebeth G. Marotta, JA; Captain Michael C. Friess, JA; Captain Jaired D. Stallard, JA (on brief).

3 January 2008

----------------------------------------- OPINION OF THE COURT

-----------------------------------------

SULLIVAN, Judge:

A military judge sitting as a general court-martial convicted appellant, pursuant to hi s pleas, of absence without leave (AWOL) (two specifications) and wrongful use of marijuana, in violation of Articles 86 and 112a, Uniform Code of Military Justice, 10 U.S.C. §§ 886 and 912a [hereinafter UCMJ]. Contrary to his pleas, the military judge convicted appellan t of two additional AWOL specifications, but acquitted appellant of missing movement under Article 87, UCMJ. The convening authority approved the adjudged findings and sentence to a bad-conduct discharge, confinem ent for fifty-three days, a nd reduction to Private E1.

In a separate court-martia l the following month, a pane l consisting of officer members sitting as a special court-martial co nvicted appellant, contrary to his pleas, of failure to repair (FTR), wrongful use of ma rijuana, wrongful us e of cocaine, and breaking restriction, in viol ation of Articles 86, 112a, and 134, UCMJ. Appellant was acquitted of making a fa lse official statement under Article 107, UCMJ. He was
sentenced to a bad-conduct di scharge and six mont hs confinement. Both cases are
before us for review under Article 66, UCMJ. Give n the complexity of the
intertwined issues disc ussed below, we will decide both cases in this single opinion.MCCLAIN – 2005 1215 and 20051331

2 BACKGROUND

Appellant’s first court-ma rtial involved charges li sted on three separate charge sheets. As to the first set of charges (origi nal charges), appellant contended he was denied his right to a speedy trial under Rule fo r Court-Martial [R.C.M.] 707, Manual for Courts-Martial , United States (20 05 ed.) [hereinafter MCM ]. 1 Prior to the motion hearing, both pa rties agreed 154 days had elapsed from preferral to arraignment. The parties then litigated the number of add itional days to be excluded for appellant’s AWOL periods.

After extensive liti gation, including te stimony of witnesse s to one of the contested AWOL specifications, the milita ry judge denied the defense motion. He concluded the 120-day speedy trial rule had not been violated because only 119 elapsed days were attributable to the government. With th e consent of both parties, the military judge considered the evid ence presented during the motion for the contested AWOL specifications and accepted additional prosecution and defense
exhibits.

After considering the additional evidence , the military judge realized he erred in calculating the inceptio n and termination dates for appellant’s various AWOL periods. The military judg e revisited his calculations sua sponte and concluded 124 days had elapsed between preferral and ar raignment on the original charges. The government argued for subtract ion of additional days fr om that total for each of appellant’s FTRs. The military judge denied that request, conc luding there was no basis upon which to calculat e “duration” of a failure to repair. A ccordingly, the military judge reversed hi mself, granted the defense motion, and dismissed the affected original charges without prejud ice. The government did not appeal the military judge’s dismissal ruling under Article 62, UCMJ, and R.C.M. 908. 2 4

1 “The accused shall be brought to trial within 120 days after the earlier of: (1) Preferral of charges . . . .” R.C.M. 707(a).

2 “In a trial by court-martial in which a military judg e presides and in which a punitive discharge may be adjudged, the United States may appeal . . . an order or ruling of the milita ry judge which terminates the proceedings with respect to a charge or specification.” Article 62(a)(1), UCMJ. Had the government successfully appealed the military judge’s ruling, d ouble jeopardy would no t preclude further proceedings. See R.C.M. 908.MCCLAIN – 2005 1215 and 20051331

3 Trial on the merits continued for the remaining charges unaffected by the dismissal; the military judge entered finding s and a sentence for those offenses and adjourned the proceedings. One week late r, at the request of the government, the military judge conducted a post-trial session under Arti cle 39(a), UCMJ. Over defense objection, the militar y judge changed his speedy trial remedy of dismissal for the affected charges a nd granted a government reques t for mistrial instead.

On 21 October 200 5, several charges arisi ng from the same misconduct contained in the previ ously dismis sed charges were referred to a special courtmartial, as well as additional new charges (second court-martial). 3 5 At the second court-martial, defense counse l moved to dismiss the offens es dismissed at the first
court-martial based on double jeopard y. The military judge ruled that jeopardy had attached to the origin al charges at appellant’s first tr ial. The milita ry judge further
ruled he did not abuse his discretion in reconsidering the original dismissal and declaring a mistrial on the original ch arges, and denied the defense motion. 4 6
Ultimately, the panel convicted appellant of FTR a nd breaking restriction, which were part of the original char ges, as well as wrongful use of cocaine and marijuana.

DISCUSSION

Appellant asserts the milita ry judge abus ed his discretion by granting a posttrial mistrial as a remedy fo r a speedy trial violation of R. C.M. 707. In our analysis, three separate issues require discussion: (1) the military judge’s dismissal without

3 Ironically, although the military judge eventually declared a mistrial for the affected charges, the gover nment still elected to pref er the charges anew. The charges referred to a second court-martial wh ich the military judge dismissed at the first court-martial were: The Specification of Charge I (failure to repair), The Specification of Charge II (f alse official statement), Sp ecification 1 of Charge III (wrongful use of marijuana) , and Specifications 1 and 2 of Charge V (breaking restriction). Specification 1 of Charge V was originally charged as a violation of a lawful order (Article 92, UCMJ ) at the first court-martia l; the gravamen of that offense was breaking restric tion (Article 134, UCMJ), as referred at the second
court-martial.

4 R.C.M. 915(c)(2):

A declaration of a mistrial shall not prevent trial by another courtmartial on the affected charges and specificatio ns except when the mistrial was declared after jeopardy attached and befo re findings, and
the declaration was:

(A) An abuse of discreti on and without the consen t of the defense; or

(B) The direct result of intentional prosecutor ial misconduct designed
to necessitate a mistrial.MCCLAIN – 2005 1215 and 20051331

4 prejudice for violatio n of R.C.M. 707; (2) the military judge’s pos t-trial substitution
of a mistrial for the earlier dismissal wit hout prejudice; and (3) the implications of the double jeop ardy clause on those rulings.

Military Judge’s Remedy fo r R.C.M. 707 Violation

In the military justi ce system, a serv ice member’s right to a speedy trial arises
from several sources: th e Sixth Amendment, Article 10, UCMJ, and R.C.M. 707. 5 7

See United States v. Kossman , 38 M.J. 258, 259 (C.M.A. 1993); United States v. Tippit , 65 M.J. 69, 80 (C.A.A.F. 2007). As previously stat ed, R.C.M. 70 7 requires a person be brought to tr ial within 120 da ys of preferral of charges. See also United States v. Birge , 52 M.J. 209, 210 (C.A.A .F. 1999). The purpose of this time limit is to protect speedy trial rights under the Sixth Amendment and Ar ticle 10, UCMJ, and society’s interest in the prompt administ ration of justice. R.C.M. 707 analysis at A21-41 (citing United States v. Walls , 9 M.J. 88 (C.M.A. 1980)).

The remedy for an R.C.M. 707 violation is modele d on the Federal Speedy Trial Act, 18 U.S.C. § 3162 [hereinafter FSTA]. 6 9 Under R.C.M. 707(d ), dismissal of an affected charge may be wi th or without prejudice to re -preferral of charges for the
same offense. 7 10 However, if the speedy trial violatio n is of constitu tional dimension, the only remedy is dismis sal with prejudice under R.C.M 707 and the FSTA. United
States v. Strunk , 412 U.S. 434 (1973); United States v. Edmund , 41 M.J. 419, 421 (1995), vacated on other grounds , 516 U.S. 802 (1995).

Rule for Courts-Martial 707 provides four factors fo r evaluating whether an affected charge should be di smissed with or without prej udice: “the seriousness of the offense; the facts and circ umstances of the case that lead to dism issal; the impact of a reprosecution on the administration of justice; and any prej udice to the accused resulting from the denial of a speedy trial.” R.C.M. 707(d); see also Edmund , 41 M.J. at 421 (noting the si milarities between R.C.M. 707(d) and the FSTA); United States v. Taylor , 487 U.S. 326, 333 (1988) (“[C]ourts are not fr ee simply to exercise their equitable powers [in formulating] an appropriate remedy, but, in order to

5 At trial, appellant conceded there was no violation of his statutory or constitutional speedy trial right. Article 10, UCMJ; U. S. Const. amend. VI.

6 R.C.M. 707(d) an alysis at A21-42.

7 R.C.M. 707(d) was amende d in 1991 specifically to permit dismissal without prejudice in the absence of a constitutional vi olation. Exec. Or der No. 12767, 56 Fed. Reg. 3028 4 (1991).MCCLAIN – 2005 1215 and 20051331

5 proceed under the [FSTA], must consider at leas t the three specified factors.”). 8 11 As the Supreme Court previously noted in relation to the FSTA, “[d]ismissal without prejudice is not a toothless sanction; it forces the Go vernment to obtain a new indictment if it decides to reprosecute, an d it exposes the prosec ution to dismissal on
statute of limita tion grounds.” Taylor , 487 U.S. at 342.

The decision to dismiss with or wit hout prejudice is le ft to the sound
discretion of the military judge. United States v. Dooley , 61 M.J. 258, 262 (C.A.A.F. 2005). Neither fo rm of dismissal is mandat ed by R.C.M. 707(d).
Edmund , 41 M.J. at 421; see also Taylor , 487 U.S. at 334 (“ [C]ongress did not intend any particular type of dismissal to serve as the presumptive remedy for a Speedy Trial Act violation. ”). A military judge’s “j udgment of how opposing
considerations balance should not lightly be disturbed.” Edmund , 41 M.J. at 421 (quoting Thomas , 487 U.S. at 337). “[ T]he standard requires that the military judge be clearly wrong in hi s determination of the facts or that his decision be influenced by an erroneous view of the law.” Dooley , 61 M.J. at 262. “Deference to the military judge’s decision is particularly prudent in those cases when a violation of R.C.M. 707(d) ha s occurred.” Id

.

In this case, the military judge properly considered th e four factors identified in R.C.M. 707(d). Fore most, as the military j udge noted an d appellant acknowledged, there was no viol ation of constitutional di mension. Appellant did not suffer any specific prejudice by the delay. Provided an oppo rtunity to articulate any such prejudice, appellant di d not claim the delay affected his trial preparation or cause any specific harm. See United States v. Proctor , 58 M.J. 792, 797-98 (A.F.C.M.R. 2003) (app ellant’s failure to allege any specific prejudice, other than lengthy pretrial confinement, is a factor weighing against dism issal with prejudice for a R.C.M 707 violation). Similarly, we find no “indicat ion [in the record] of the slightest impact on [appellant’s ] right to a fair trial.” Edmund , 41 M.J. at 422.

Although appellant did not allege any specific prejudice, he asserted the affected charges were rela tively minor and that peri ods of inactivity by the government regarding the offenses amounted to negl ect. Accordi ngly, appellant
maintained he was entitled to the inference of “intentiona l dilatory condu ct,” thereby demonstrating prejudice from the R.C.M. 707 violation. The facts of this case, however, militate ag ainst this conclu sion. Appellant himself showed litt le interest in a speedy trial. The deductions from the 154 days between pref erral and arraignment included three separa te periods of AWOL and two defense delays of the Article 32, UCMJ, investigation. As the military judge properly conc luded, the peri ods of delay attributable to the government were rela ted to its efforts to present all known charges to the Article 32, UCMJ, investigating officer. See R.C.M. 906(b)(10)

8 The FSTA provides for factors similar to R.C.M. 707(d): “the seriousness of the offense; the facts and circumst ances of the case which lead to the dismissal; and the impact of a reprosecutio n on the administration of this chapter and the administration of justice.” 18 U.S.C. § 3162(a)(2).MCCLAIN – 2005 1215 and 20051331

6 (“[O]rdinarily, all known charges should be tried at a single court-martial. ”). It was appellant’s own continuing mi sconduct that nece ssitated the three separate charge sheets at his first court-martial. We agree, therefore, with the military judge’s findings of a lack of intent ional dilatory condu ct on the part of the government. See
Edmund , 41 M.J. at 421 (the R.C.M. 707 violation was not due to “intentional dilatory conduct” on the part of the government).

Finally, the record supports the military judge’s finding of minimal impact from reprosecution of the affe cted charges. Charges were re-preferred shortly after
the conclusion of the first court-martial. Moreover, the length of the R.C.M. 707
violation was de minimis , only four days beyond the 120-day period. Cf. Thomas

, 487 U.S. at 340 (under the FST A, the length of de lay is linked to the seriousness of the speedy trial violation; the longer the delay, the greater prejudice to the defendant).

Based upon these facts, we find that the military judge did no t abuse his discretion in dismissing the charges without prejudice.

Military Judge’s Post-Trial Declaration of Mistrial

We next address th e military judge’s changed ruling on the speedy trial remedy from dismissal without prejudice to mistrial. 9 12 The standard of review for a military judge’s determination of a mistrial is “abus e of discretion.” United States v.

Harris , 51 M.J. 191, 196 (C.A.A.F. 1999).

Our jurisprudence ha s long recognized that mistrial and dismissal are not the

same. See e.g

., United States v. Platt , 21 U.S.C.M.A. 16, 44 C.M.R. 70 (1971); cf. United States v. Weatherspoon , 39 M.J. 762, 766 (A.C.M.R . 1994) (error by military judge to find that dismissal and withdrawal have the same impact). “A declaration
of a mistrial shall have the effect of withdrawing the affected charges and specifications from the court- martial.” R.C.M. 915(c)(1) . The charges, however, remain preferred. Weatherspoon , 39 M.J. at 766. Theref ore, after a mistrial the convening authority has the option of referring the ch arges again or otherwise disposing of them. R.C. M. 915(c) discussion.

The option of referring the charges anew does not exist where charges are dismissed. “[W]ithdrawal of charges . . . exti nguishes the jurisdiction of a court-

9 Given our disposition below, we need no t address the authority of the military judge to conduct a “post-trial hearing” on his dism issal of charges, other than to note the tension between R.C.M. 905(f) (prior to authentication, the military judge may reconsider any ruling he ha s made other than one amoun ting to a finding of not guilty) and R.C.M. 1102 (post-trial procee dings in revision may correct apparent
errors which can be rectif ied “without material prej udice to the accused”). See R.C.M. 907(a) discussion (u nless the decision to dism iss is reconsidered and reversed, dismissal terminates the proceedings).MCCLAIN – 2005 1215 and 20051331

7 martial over them, and dismissal of charges . . . extinguishes the charges
themselves.” R.C.M. 604(a) analysis at A2 1-32. “Dismissal of charges disposes of those charges; it does not necessarily bar subsequent disposition of the underlying
offenses . . . .” Id . Indeed, R.C.M. 707 internally recognizes the distinction. It
outlines those events which affect time periods for sp eedy trial purposes, to include “[d]ismissal or mistrial,” an d provides “[i]f charge s are dismissed, or if a mistrial is granted, a new 120-day time pe riod under this rule shall begin on the date of the
dismissal or mistrial . . . .” R.C.M. 707(b)(3)(A).

The distinction between mistrial and dism issal is more than mere semantics. After mistrial, affected char ges remain “alive” for purpos es of further proceedings; after dismissal, affected charges no longer exist. After dismissal, any further proceedings can only be initiated as to th e conduct underlying the affected charges by starting anew, with preferra l of different charges. Wh ile, in general, there are
different standards for fu rther trial proceedings, 10 13 dismissal is the only remedy for violation of the 120-day rule: “A fa ilure to comply with this rule will result in
dismissal of the affected char ges . . . .” R.C.M. 707(d) (emphasis added). Mistrial is not an authorized remedy under R.C.M. 707 for a violatio n of the 120-day rule. In this case, therefore, dismissal, either with or without pr ejudice, was required and the military judge’s declaration of a mistrial constituted a clear abuse of discretion. 11

14

10 Compare R.C.M. 604(b) (withdrawn charges may be referred to another courtmartial unless withdrawal wa s improper; if withdrawn afte r introduction of evidence on guilt, charges may be referred to anothe r court-martial “only if the withdrawal was necessitated by urgent and unforeseen milita ry necessity”), with R.C.M. 907 discussion (in general, dismissal “does not ordinarily bar a later court-martial for the same offense if the grounds fo r dismissal no longer exist” ). “When an accused in a
criminal trial succes sfully moves for a mi strial, he may ‘invok e the bar of double jeopardy’ against a second tria l only where ‘the conduct giving rise to the successful
motion for a mistrial was intended to provoke the defendan t into m oving for
mistrial.’” United States v. DiAngelo, 31 M.J. 135, 136 (C .M.A. 1990) (emphasis omitted) (quoting Oregon v. Kennedy , 456 U.S. 6 67, 679 (1982)); see also R.C.M. 915(c)(2).

11 Federal courts have held dismissal is manda tory. As in military practice, a federal trial judge has discreti on to dismiss with or without pr ejudice. United States v.

Kramer , 827 F.2d 1174, 1176 (8th Cir. 1987) (“Although dismissal is mandatory when the [FSTA] is violated, the [FSTA] grants the trial judge the discretion to
dismiss the indictment with or without prejudice.”); United States v. Bilsky , 664 F.2d 613, 617 (6th Cir. 1981) (“A finding of a constitutio nal speedy trial violation mandates dismissal with prejudice. Unde r the [FSTA], however , dismissal may be with or without prejudice.” (citations and footnotes omitted)); United States v.
Lainez-Leiva , 129 F.3d 89 (2d Cir. 1997).MCCLAIN – 2005 1215 and 20051331

8 Double Jeopardy

We now consider the impact of the military judge’s rulings which allowed the government to try appellant over his objection on seve ral original charges in a
second court-martial. The Fifth Amendm ent to the United St ates Constitution provides that no person shall “be subject, for the same o ffence, to be twice put in jeopardy of life or limb . . . .” The “double jeopardy clause” protects against successive prosecutions and multiple pu nishments for the same offense. United States v. Ragard , 56 M.J. 852, 855 (Army Ct. Crim. App. 2003) (citing Brown v.
Ohio , 432 U.S. 161, 165 (1977)). The purposes underlying double jeopardy include “protecting the integrity of a final judgment,” United States v. Scott , 437 U.S. 82, 92 (1978), and assuring the government, “with all its resources and power,” is not “allowed to make repe ated attempts to convict an in dividual for an al leged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” Green v. United

States , 355 U.S. 184, 187 -88 (1957).

The double jeopardy clause is applied to milita ry personnel through Article 44(a), UCMJ, which provides: “No person may, without his consent, be tried a
second time for the same offense.” Arti cle 44(b), UCMJ, also provides: “A charge or specification shall be di smissed upon motion made by th e accused before the final adjournment of the court-mar tial in that case if . . . [t]he accu sed has previously been tried by court-mart ial . . . for the same offense . . . .” See United States v.
Collins , 41 M.J. 428, 429 (C.A.A.F . 1995). Article 44, UCMJ, does not, however, offer broader protections than granted by the Constitution in this case. 12 15 See United
States v. Cook , 12 M.J. 448, 452 (C.M.A. 1982) (t he constitutional protection is
“mirrored” in Ar ticle 44(a), UCMJ); United States v. Richardson , 21 U.S.C.M.A. 54, 44 C.M.R. 108 (1971); Burtt v. Schick , 23 M.J. 140 (C .M.A. 1986).

“The Supreme Court and military courts have consistently he ld that jeopardy does not attach until an accused is ‘put to trial before the trier of the facts, whether the trier be a jury or a judge.’” Ragard, 56 M.J. at 855 (quoting Serfass v. United

States , 420 U.S. 377, 390-91 (1975)). “In the case of a jury trial, je opardy attaches when a jury is empaneled and sworn. In a nonjury trial, jeopardy attaches when the court begins to hear evidence.” Serfass , 420 U.S. at 388 (c itations and footnote omitted).

In appellant’s firs t court-martial, he was ar raigned, entere d pleas, and evidence on the merits was admitted. “[W] here a case is tried to a court without a jury, jeopardy begins after accused has been indicted and arraigned, has pleaded and the court has begun to hear evidence.” McCarthy v. Zerbst , 85 F.2d 640, 642 (10th

12 Significantly, Article 44, UCMJ, incorporates elem ents of Suprem e Court double jeopardy jurisprudence. In its exception to the definition of the term “t rial,” Article 44(b), UCMJ, looks to a finding of guilt.MCCLAIN – 2005 1215 and 20051331

9 Cir. 1936), cert. denied , 299 U.S. 610 (1936); see also United States v. Wells , 9 U.S.C.M.A. 509, 26 C.M.R. 28 9 (1958). Therefore, as the military judge properly found during the motion he aring in appellant’s second trial, jeopar dy had attached.

Having determined that jeopardy attached , we next address the implication for further proceedings. Contrary to appellant’s claim, our determination that jeopardy attaches “begins, rather than ends, the inquiry as to whethe r the Double Jeopardy
Clause bars retrial.” Serfass , 420 U.S. at 390 (quoting Illinois v. Somerville , 410 U.S. 458, 467 (1973)). In general, “[w]here ‘the tr ial is terminated without any
submission to either judge or jury as to . . . guilt or innocence ’ there has been no determination of guilt of [sic] inno cence and retrial is not barred.” United States v.

Germono , 16 M.J. 987, 988 (A.C .M.R. 1983) (quoting Scott , 437 U.S. at 101).

In determining whether a ruling amounts to a find ing of not guilty, “a defendant is acquitte d only when ‘the ruling of the ju dge, whatever its label, actually represents a resolution [in the defendant’s fa vor], correct or not, of some or all of
the factual elements of the offense charged.’” United States v. Hunt , 24 M.J. 725, 728 (A.C.M.R. 1987) (quoting United States v. Ma rtin Linen Supply Co ., 430 U.S. 564, 572 (1977)). Applyi ng this principle to appellant’s case, it is help ful to review
the factual scenarios in two seminal Supreme Court cases: Scott, 437 U.S. 82 and
United States v. Lee , 432 U.S. 23 (1977).

In Scott , the defendant moved, both before and during trial, for dismissal of
two indictment counts beca use of preindictment delay. 437 U.S. at 84. After hearing the evidence, the trial court granted the dismissal and held the affected charges were barred from re prosecution. The government sought to appeal. The
Court concluded:

[T]he defendant, by deliberately ch oosing to seek te rmination of the proceedings against him on a basis unrelated to factual guilt or
innocence of the offense of which he is accuse d, suffers no injury cognizable under the D ouble Jeopardy Clause . . . . [T]he Double Jeopardy Clause, which guards agai nst Government oppression, does
not relieve a defendant from the consequences of his voluntary choice . . . . [I]n the presen t case, respondent successf ully avoided [actual]
submission of the first co unt of the indictment [t o the trier of fact] by persuading the tria l court to dismiss it on a basis which did not depend on guilt or innocence. He was t hus neither acquit ted nor convicted, because he himself successfully undertook to persuade the trial court
not to submit the issue of guilt or innocence to the jury which had been empaneled to try him.

Id . at 98-99.MCCLAIN – 2005 1215 and 20051331

10 Lee was a bench trial with significant para llels to appellant’s case. 432 U.S.

23. In Lee , the defense moved to dismiss a purp ortedly defective specification after the prosecution made its opening statement. The judge denied the motion, continued with the trial, but indicated that he would resear ch the defense position at the first opportunity and give the motion further consideration “as appears to be warranted.”
Id . at 26. After presentation of evidence, the judge stated the evidence proved the defendant’s guilt beyond “any reasonable doubt in the world,” but nevertheless granted the earlier mo tion to dismiss base d on defects in the charging documents.
Id

.

The defendant was later char ged with the previously dismissed offense. At the subsequent trial, the evidence presented was substantially the same as the evidence at the first trial and the defendant was convicted. On appeal, the defendant claimed his second trial was barred by double jeopardy. The Supreme Court disagreed, again noting that “a trial court’s ruling in fa vor of the defe ndant is an acquittal only if it ‘act ually represents a resolution, corr ect or not, of some or all of
the factual elements of the offense charged.’” Id. at 30 n.8 (quoting Martin Linen Supply Co ., 430 U.S. at 571).

Equally significant to appellant’s case, the Supreme Court f ound a trial court
label of “dismissal” or “m istrial” not controlling:

The critical question is whether the order contem plates an end to all prosecution of the defend ant for the offense charge d. A mistrial ruling invariably rests on grounds consiste nt with reprosec ution, while a dismissal may or may not do so. . . . In short, the orde r entered by the [trial court] was functionally indi stinguishable from a declaration of
mistrial.

Id. at 30-31 (citation an d footnote omitted).

In a sense, therefor e, our analysis has come full circle. The military judge erred in ordering a mistrial when he was required to direct dismissal, but for purposes of the second trial on the orig inal charges, the distin ction between mistrial and dismissal “has no significance in the circumstances he re presented.” Id. at 31. Ultimately, it is the substance of a trial court ruling and not its form that determines its significance in the co ntext of doubl e jeopardy. United States v. Jorn , 400 U.S. 470, 478 n.7 (1971) (r ecognizing that “the trial judge’s char acterization of his own
action cannot control the clas sification of the action”).

In this case, the milita ry judge granted the defe nse motion to dismiss on grounds unrelated to guilt or innocence. Applying Scott and Lee , we conclude appellant’s second court-mar tial on the original offenses was not barr ed by Fifth Amendment double jeopardy pr otection. Since th ere was no constitutional double jeopardy bar, there was also no statutory bar. We find this cons istent with numerous military cases holding dismissal of char ges does not amount to a finding of notMCCLAIN – 2005 1215 and 20051331

11 guilty under Article 44, UCMJ. United States v. Ware , 1 M.J. 282 (C.M.A. 1976) (reconsideration of a dism issal of charges for denial of a speedy trial); Mangsen v. Synder , 1 M.J. 287 (C.M.A. 1976) (dismissal for lack of ju risdiction does not bar reprosecution); Priest v. Koch , 19 U.S.C.M.A. 293, 41 C. M.R. 293 (1970) (dismissal for failure to state an offense did not bar reprosecution). 13 16

CONCLUSION

Upon consideration of the entire record in both of appellant’s cases, including those matters personally rais ed by appellant pursuant to United States v. Grostefon

, 12 M.J. 431 (C.M.A. 1982), the findings of guilty and se ntences in both cases are
affirmed.

Senior Judge HOLDEN and Judge HOFFMAN concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court

13 Not only is our conclusi on consistent with Supreme Court precedent, any other interpretation would create a cl early unintended gap in the Rules for Courts-Martial. The Supreme Court directs us to analyze whether proceedings “actually represent a resolution, correct or not, of some or all of the factua l elements of the offense charged.” Martin Linen Supply Co ., 430 U.S. at 57 1. If we were to ignore this directive and adopt appellant’ s position, an accused coul d simply wait until after jeopardy attaches to file a motion to dismiss fo r speedy trial and essentially foreclose the option of dismi ssal without prejudic e, provided in R.C. M. 707(d)(1).
We do not read the Rules fo r Courts-Martial to depriv e the public “of its valued right to ‘one complete opportunity to convict those who have violated its laws.’”

Scott , 437 U.S. at 100 (quoting Arizona v. Washington , 434 U.S. 497, 509 (1978)). MALCOLM H. SQUIRES, JR.
Clerk of Court FOR THE COURT: