UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

HOLDEN, HOFFMAN, and SULLIVAN 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Private E2 JARROD R. MCCLAIN 

United States Army, Appellant 

ARMY 20051215 and ARMY 20051331 

7th Infantry Division 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 Patrick 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 his 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 appellant 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, confinement for fifty-three days, and reduction to Private E1. 

 

In a separate court-martial the following month, a panel consisting of officer 

members sitting as a special court-martial convicted appellant, contrary to his pleas, 

of failure to repair (FTR), wrongful use of marijuana, wrongful use of cocaine, and 

breaking restriction, in violation of Articles 86, 112a, and 134, UCMJ. Appellant 

was acquitted of making a false official statement under Article 107, UCMJ. He was 

sentenced to a bad-conduct discharge and six months confinement. Both cases are 

before us for review under Article 66, UCMJ. Given the complexity of the 

intertwined issues discussed below, we will decide both cases in this single opinion. 
MCCLAIN – 20051215 and 20051331 

2

BACKGROUND 

 Appellant’s first court-martial involved charges listed on three separate 

charge sheets. As to the first set of charges (original charges), appellant contended 

he was denied his right to a speedy trial under Rule for Court-Martial [R.C.M.] 707, 

Manual for Courts-Martial, United States (2005 ed.) [hereinafter MCM].1 Prior to 

the motion hearing, both parties agreed 154 days had elapsed from preferral to 

arraignment. The parties then litigated the number of additional days to be excluded 

for appellant’s AWOL periods. 

After extensive litigation, including testimony of witnesses to one of the 

contested AWOL specifications, the military 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 the consent of both parties, 

the military judge considered the evidence 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 inception and termination dates for appellant’s various AWOL 

periods. The military judge revisited his calculations sua sponte and concluded 124 

days had elapsed between preferral and arraignment on the original charges. The 

government argued for subtraction of additional days from that total for each of 

appellant’s FTRs. The military judge denied that request, concluding there was no 

basis upon which to calculate “duration” of a failure to repair. Accordingly, the 

military judge reversed himself, granted the defense motion, and dismissed the 

affected original charges without prejudice. The government did not appeal the 

military judge’s dismissal ruling under Article 62, UCMJ, and R.C.M. 908.24 

 

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 judge presides and in which a 

punitive discharge may be adjudged, the United States may appeal . . . an order or 

ruling of the military 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, double jeopardy would not preclude further 

proceedings. See R.C.M. 908. 
MCCLAIN – 20051215 and 20051331 

3

Trial on the merits continued for the remaining charges unaffected by the 

dismissal; the military judge entered findings and a sentence for those offenses and 

adjourned the proceedings. One week later, at the request of the government, the 

military judge conducted a post-trial session under Article 39(a), UCMJ. Over 

defense objection, the military judge changed his speedy trial remedy of dismissal 

for the affected charges and granted a government request for mistrial instead. 

On 21 October 2005, several charges arising from the same misconduct 

contained in the previously dismissed charges were referred to a special courtmartial, as well as additional new charges (second court-martial).35

 At the second 

court-martial, defense counsel moved to dismiss the offenses dismissed at the first 

court-martial based on double jeopardy. The military judge ruled that jeopardy had 

attached to the original charges at appellant’s first trial. The military judge further 

ruled he did not abuse his discretion in reconsidering the original dismissal and 

declaring a mistrial on the original charges, and denied the defense motion.46 

Ultimately, the panel convicted appellant of FTR and breaking restriction, which 

were part of the original charges, as well as wrongful use of cocaine and marijuana. 

DISCUSSION 

Appellant asserts the military judge abused his discretion by granting a posttrial mistrial as a remedy for 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 government still elected to prefer the charges anew. The 

charges referred to a second court-martial which the military judge dismissed at the 

first court-martial were: The Specification of Charge I (failure to repair), The 

Specification of Charge II (false official statement), Specification 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-martial; the gravamen of that 

offense was breaking restriction (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 specifications except when the 

mistrial was declared after jeopardy attached and before findings, and 

the declaration was: 

(A) An abuse of discretion and without the consent of the defense; or 

(B) The direct result of intentional prosecutorial misconduct designed 

to necessitate a mistrial. 
MCCLAIN – 20051215 and 20051331 

4

prejudice for violation of R.C.M. 707; (2) the military judge’s post-trial substitution 

of a mistrial for the earlier dismissal without prejudice; and (3) the implications of 

the double jeopardy clause on those rulings. 

Military Judge’s Remedy for R.C.M. 707 Violation 

In the military justice system, a service member’s right to a speedy trial arises 

from several sources: the Sixth Amendment, Article 10, UCMJ, and R.C.M. 707.57

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 stated, R.C.M. 707 requires a 

person be brought to trial within 120 days 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 Article 10, UCMJ, and 

society’s interest in the prompt administration 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 modeled on the Federal Speedy 

Trial Act, 18 U.S.C. § 3162 [hereinafter FSTA].69 Under R.C.M. 707(d), dismissal of 

an affected charge may be with or without prejudice to re-preferral of charges for the 

same offense.710However, if the speedy trial violation is of constitutional dimension, 

the only remedy is dismissal 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 for evaluating whether an 

affected charge should be dismissed with or without prejudice: “the seriousness of 

the offense; the facts and circumstances of the case that lead to dismissal; the impact 

of a reprosecution on the administration of justice; and any prejudice 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 similarities between R.C.M. 707(d) and the FSTA); United 

States v. Taylor, 487 U.S. 326, 333 (1988) (“[C]ourts are not free 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) analysis at A21-42. 

7

 R.C.M. 707(d) was amended in 1991 specifically to permit dismissal without 

prejudice in the absence of a constitutional violation. Exec. Order No. 12767, 56 

Fed. Reg. 30284 (1991). 

 
MCCLAIN – 20051215 and 20051331 

5

proceed under the [FSTA], must consider at least the three specified factors.”).811As 

the Supreme Court previously noted in relation to the FSTA, “[d]ismissal without 

prejudice is not a toothless sanction; it forces the Government to obtain a new 

indictment if it decides to reprosecute, and it exposes the prosecution to dismissal on 

statute of limitation grounds.” Taylor, 487 U.S. at 342.

 The decision to dismiss with or without prejudice is left to the sound 

discretion of the military judge. United States v. Dooley, 61 M.J. 258, 262 

(C.A.A.F. 2005). Neither form of dismissal is mandated 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 “judgment 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 his 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) has occurred.” Id. 

In this case, the military judge properly considered the four factors identified 

in R.C.M. 707(d). Foremost, as the military judge noted and appellant 

acknowledged, there was no violation of constitutional dimension. Appellant did not 

suffer any specific prejudice by the delay. Provided an opportunity to articulate any 

such prejudice, appellant did 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) (appellant’s failure to allege any specific prejudice, other than 

lengthy pretrial confinement, is a factor weighing against dismissal with prejudice 

for a R.C.M 707 violation). Similarly, we find no “indication [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 relatively minor and that periods of inactivity by the 

government regarding the offenses amounted to neglect. Accordingly, appellant 

maintained he was entitled to the inference of “intentional dilatory conduct,” thereby 

demonstrating prejudice from the R.C.M. 707 violation. The facts of this case, 

however, militate against this conclusion. Appellant himself showed little interest in 

a speedy trial. The deductions from the 154 days between preferral and arraignment 

included three separate periods of AWOL and two defense delays of the Article 32, 

UCMJ, investigation. As the military judge properly concluded, the periods of delay 

attributable to the government were related 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 circumstances of the case which lead to the dismissal; and the 

impact of a reprosecution on the administration of this chapter and the 

administration of justice.” 18 U.S.C. § 3162(a)(2). 
MCCLAIN – 20051215 and 20051331 

6

(“[O]rdinarily, all known charges should be tried at a single court-martial.”). It was 

appellant’s own continuing misconduct that necessitated the three separate charge 

sheets at his first court-martial. We agree, therefore, with the military judge’s 

findings of a lack of intentional dilatory conduct 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 affected 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 FSTA, the length of delay 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 not abuse his 

discretion in dismissing the charges without prejudice. 

Military Judge’s Post-Trial Declaration of Mistrial 

We next address the military judge’s changed ruling on the speedy trial 

remedy from dismissal without prejudice to mistrial.912The standard of review for a 

military judge’s determination of a mistrial is “abuse of discretion.” United States v. 

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

 

Our jurisprudence has 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. Therefore, after a mistrial the 

convening authority has the option of referring the charges 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 . . . extinguishes the jurisdiction of a court-

 

9

 Given our disposition below, we need not address the authority of the military 

judge to conduct a “post-trial hearing” on his dismissal 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 has made other than one amounting to a finding of not 

guilty) and R.C.M. 1102 (post-trial proceedings in revision may correct apparent 

errors which can be rectified “without material prejudice to the accused”). See

R.C.M. 907(a) discussion (unless the decision to dismiss is reconsidered and 

reversed, dismissal terminates the proceedings). 
MCCLAIN – 20051215 and 20051331 

7

martial over them, and dismissal of charges . . . extinguishes the charges 

themselves.” R.C.M. 604(a) analysis at A21-32. “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 speedy trial purposes, to include 

“[d]ismissal or mistrial,” and provides “[i]f charges are dismissed, or if a mistrial is 

granted, a new 120-day time period 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 dismissal is more than mere semantics. 

After mistrial, affected charges remain “alive” for purposes of further proceedings; 

after dismissal, affected charges no longer exist. After dismissal, any further 

proceedings can only be initiated as to the conduct underlying the affected charges 

by starting anew, with preferral of different charges. While, in general, there are 

different standards for further trial proceedings,1013dismissal is the only remedy for 

violation of the 120-day rule: “A failure to comply with this rule will result in 

dismissal of the affected charges . . . .” R.C.M. 707(d) (emphasis added). Mistrial 

is not an authorized remedy under R.C.M. 707 for a violation of the 120-day rule. In 

this case, therefore, dismissal, either with or without prejudice, 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 was improper; if withdrawn after introduction of evidence 

on guilt, charges may be referred to another court-martial “only if the withdrawal 

was necessitated by urgent and unforeseen military 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 for dismissal no longer exist”). “When an accused in a 

criminal trial successfully moves for a mistrial, he may ‘invoke the bar of double 

jeopardy’ against a second trial only where ‘the conduct giving rise to the successful 

motion for a mistrial was intended to provoke the defendant into moving for 

mistrial.’” United States v. DiAngelo, 31 M.J. 135, 136 (C.M.A. 1990) (emphasis 

omitted) (quoting Oregon v. Kennedy, 456 U.S. 667, 679 (1982)); see also R.C.M. 

915(c)(2). 

11 Federal courts have held dismissal is mandatory. As in military practice, a federal 

trial judge has discretion to dismiss with or without prejudice. 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 constitutional speedy trial violation 

mandates dismissal with prejudice. Under 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 – 20051215 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 several original charges in a 

second court-martial. The Fifth Amendment to the United States Constitution 

provides that no person shall “be subject, for the same offence, to be twice put in 

jeopardy of life or limb . . . .” The “double jeopardy clause” protects against 

successive prosecutions and multiple punishments 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 repeated attempts to convict an individual for an alleged 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 military personnel through Article 

44(a), UCMJ, which provides: “No person may, without his consent, be tried a 

second time for the same offense.” Article 44(b), UCMJ, also provides: “A charge 

or specification shall be dismissed upon motion made by the accused before the final 

adjournment of the court-martial in that case if . . . [t]he accused has previously 

been tried by court-martial . . . 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.1215See United 

States v. Cook, 12 M.J. 448, 452 (C.M.A. 1982) (the constitutional protection is 

“mirrored” in Article 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 held 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, jeopardy 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 (citations and footnote 

omitted). 

In appellant’s first court-martial, he was arraigned, entered 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 elements of Supreme Court double 

jeopardy jurisprudence. In its exception to the definition of the term “trial,” Article 

44(b), UCMJ, looks to a finding of guilt. 
MCCLAIN – 20051215 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. 289 (1958). Therefore, as the military judge properly 

found during the motion hearing in appellant’s second trial, jeopardy 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 whether 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 trial is terminated without any 

submission to either judge or jury as to . . . guilt or innocence’ there has been no 

determination of guilt of [sic] innocence 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 finding of not guilty, “a 

defendant is acquitted only when ‘the ruling of the judge, whatever its label, actually 

represents a resolution [in the defendant’s favor], 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. Martin Linen Supply Co., 430 U.S. 

564, 572 (1977)). Applying this principle to appellant’s case, it is helpful 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 because 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 reprosecution. The government sought to appeal. The 

Court concluded: 

[T]he defendant, by deliberately choosing to seek termination of the 

proceedings against him on a basis unrelated to factual guilt or 

innocence of the offense of which he is accused, suffers no injury 

cognizable under the Double Jeopardy Clause . . . . [T]he Double 

Jeopardy Clause, which guards against Government oppression, does 

not relieve a defendant from the consequences of his voluntary choice 

. . . . [I]n the present case, respondent successfully avoided [actual] 

submission of the first count of the indictment [to the trier of fact] by 

persuading the trial court to dismiss it on a basis which did not depend 

on guilt or innocence. He was thus neither acquitted 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 – 20051215 and 20051331 

10

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

23. In Lee, the defense moved to dismiss a purportedly defective specification after 

the prosecution made its opening statement. The judge denied the motion, continued 

with the trial, but indicated that he would research 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 motion to dismiss based on defects in the charging documents. 

Id. 

The defendant was later charged 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 favor of the defendant is an 

acquittal only if it ‘actually represents a resolution, correct 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 found a trial court 

label of “dismissal” or “mistrial” not controlling: 

 

The critical question is whether the order contemplates an end to all 

prosecution of the defendant for the offense charged. A mistrial ruling 

invariably rests on grounds consistent with reprosecution, while a 

dismissal may or may not do so. . . . In short, the order entered by the 

[trial court] was functionally indistinguishable from a declaration of 

mistrial. 

Id. at 30-31 (citation and footnote omitted). 

In a sense, therefore, 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 original charges, the distinction between mistrial 

and dismissal “has no significance in the circumstances here presented.” Id. at 31. 

Ultimately, it is the substance of a trial court ruling and not its form that determines 

its significance in the context of double jeopardy. United States v. Jorn, 400 U.S. 

470, 478 n.7 (1971) (recognizing that “the trial judge’s characterization of his own 

action cannot control the classification of the action”). 

In this case, the military judge granted the defense motion to dismiss on 

grounds unrelated to guilt or innocence. Applying Scott and Lee, we conclude 

appellant’s second court-martial on the original offenses was not barred by Fifth 

Amendment double jeopardy protection. Since there was no constitutional double 

jeopardy bar, there was also no statutory bar. We find this consistent with numerous 

military cases holding dismissal of charges does not amount to a finding of not 
MCCLAIN – 20051215 and 20051331 

11

guilty under Article 44, UCMJ. United States v. Ware, 1 M.J. 282 (C.M.A. 1976) 

(reconsideration of a dismissal of charges for denial of a speedy trial); Mangsen v. 

Synder, 1 M.J. 287 (C.M.A. 1976) (dismissal for lack of jurisdiction 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 raised by appellant pursuant to United States v. Grostefon, 

12 M.J. 431 (C.M.A. 1982), the findings of guilty and sentences 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 conclusion consistent with Supreme Court precedent, any other 

interpretation would create a clearly 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 factual elements of the offense 

charged.” Martin Linen Supply Co., 430 U.S. at 571. If we were to ignore this 

directive and adopt appellant’s position, an accused could simply wait until after 

jeopardy attaches to file a motion to dismiss for speedy trial and essentially 

foreclose the option of dismissal without prejudice, provided in R.C.M. 707(d)(1). 

We do not read the Rules for Courts-Martial to deprive 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: