UNITED STATES NAVY-MARINE CORPS 

COURT OF CRIMINAL APPEALS

WASHINGTON, D.C.

Before

J.R. MCFARLANE, K.M. MCDONALD, M.K. JAMISON

Appellate Military Judges

UNITED STATES OF AMERICA

v.

ZACHARY W. SPRATLING

GAS TURBINE SYSTEM TECHNICIAN (MECHANICAL)

THIRD CLASS (E-4), U.S. NAVY

NMCCA 201400060

GENERAL COURT-MARTIAL

Sentence Adjudged: 18 October 2013.

Military Judge: CAPT Robert Blazewick, JAGC, USN.

Convening Authority: Commander, Navy Region Southeast, 

Jacksonville, FL.

Staff Judge Advocate's Recommendation: CDR N.O. Evans, 

JAGC, USN.

For Appellant: LT Jessica Fickey, JAGC, USN.

For Appellee: Maj Paul Ervasti, USMC; Maj David N. Roberts, 

USMC.

31 July 2014

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OPINION OF THE COURT 

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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS 

PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM: 

A general court-martial composed of officer and enlisted 

members convicted the appellant, contrary to his pleas, of 

committing an indecent act and receiving child pornography in 

violation of Articles 120 and 134, Uniform Code of Military 

Justice, 10 U.S.C. §§ 920 and 934. The members sentenced the 

appellant to confinement for a period of 60 days and a bad-
2

conduct discharge. The convening authority (CA) approved the 

sentence as adjudged.

In his sole assignment of error, the appellant argues that 

the military judge erred in not dismissing Charge I (receipt of 

child pornography) based on a violation of the appellant’s 

speedy trial rights under RULE FOR COURT-MARTIAL 707, MANUAL FOR

COURTS-MARTIAL, UNITED STATES (2008 ed.).1 After consideration of 

the pleadings of the parties and the record of trial, we 

conclude that the findings and sentence are correct in law and 

fact and that no error materially prejudicial to the substantial 

rights of the appellant was committed. Arts. 59(a) and 66(c), 

UCMJ.

Background

On 14 January 2013, the Government preferred an initial set 

of charges against the appellant. Appellate Exhibit XXIV. This 

included the following charges: indecent act under Article 120, 

UCMJ, for sending KS, a minor, a photograph of a penis; receipt 

of five images of child pornography (nude images of KS) under 

Article 134, UCMJ; and, indecent act under Article 134, UCMJ, 

for sending KS, via interstate commerce, a digital image of a 

penis. 

Following a pretrial investigation under Article 32, UCMJ, 

the Government preferred substantially the same charges on 18 

March 2013 and the CA referred these charges to a general courtmartial on 25 March 2013.2

 The appellant was arraigned on this 

set of charges on 22 April 2013. 

As part of the pretrial litigation during his initial 

court-martial, the appellant moved to dismiss Charge I (Article 

120, UCMJ) and its sole specification based on the claim that it 

 

1 This assignment of error is raised pursuant to United States v. Grostefon, 

12 M.J. 431 (C.M.A. 1982).

2 Specification 1 of Charge II preferred on 18 March 2013 alleged receipt of 

six images of child pornography while the specification preferred on 14 

January 2013 alleged receipt of five images of child pornography. AE XXIV. 

Other than a change to the date in specification 1 of Charge II and an 

addition of the number “4” to identify a particular digital image in that 

specification, the charges preferred on 18 March 2013 were substantially the 

same as the charges preferred on 14 January 2013; however, only the charges 

preferred on 18 March 2013 were actually referred by the CA and subsequently 

dismissed. Charge Sheet of 18 Mar 2013. For purposes of this assignment of 

error, the appellant argues that the speedy trial clock started on 14 January 

2013. Because the Government did not contest this date, we will accept 

without deciding the appellant’s argument of a 14 January 2013 start date. 
3

was unreasonably multiplied with Specification 2 of Charge II 

(Article 134, UCMJ). AE II at 101. The military judge agreed 

and without consulting the Government, directed the dismissal, 

without prejudice, of Charge I and its sole specification as 

unreasonably multiplied with Specification 2 of Charge II. Id. 

at 280.

On 30 June 2013, the Government preferred two new charges 

against the appellant. Charge I (Article 134, UCMJ) alleged 

that the appellant received four images of child pornography and 

Charge II (Article 120, UCMJ) alleged an indecent act by the 

appellant for sending a digital image of a penis to KS. Based 

on the Article 34, UCMJ, advice of the staff judge advocate, the 

CA referred these charges on 1 July 2013 to the same general 

court-martial (GCMCO 03-13) as those charges preferred on 18 

March 2013.3

On 2 July 2013, the Government served the appellant with 

the new set of charges. On 3 July 2013, the appellant moved 

for a continuance until 19 July 2013. Over Government 

opposition, the military judge granted the appellant’s request 

for a continuance. On 29 July 2013, the appellant was arraigned 

on the new set of charges.

At his arraignment, the appellant moved to dismiss the new 

set of charges based on an improper referral.4

 AE IV. The 

military judge denied the motion. Record at 81; AE VI. The 

appellant submitted a new proposed Case Management Order (CMO) 

that set new trial milestones. The military judge approved the 

CMO and, based on the request by the appellant, set the case for 

trial on 15 October 2013. AE I; AE LXX at 3.

On 6 September 2013, the appellant, for the first time, 

moved to dismiss the charges based on a violation of his speedy 

trial rights under R.C.M. 707 and the 6th Amendment. AE XXIV. 

On 2 October 2013, the military judge denied the motion. AE 

XXVI. The appellant moved for reconsideration based on the fact 

that trial defense counsel had been denied the opportunity to 

present oral argument. The military judge reconsidered, heard 

 

3 On 9 July 2013, at the direction of the CA, the trial counsel withdrew and

dismissed Charge II and its two specifications (preferred on 18 March 2013 

and referred on 25 March 2013). AE XXIV at 10-12.

4 The appellant’s motion to dismiss for improper referral alleged a subterfuge 

by the Government that essentially argued that the CA’s decision to re-refer 

charges had the effect of overturning the military judge’s prior ruling that

had dismissed the Article 120 Charge. AE IV.
4

oral argument on the motion, and essentially ratified his 

earlier 2 October 2013 ruling. AE LXX. 

Speedy Trial Claim

On appeal, the appellant argues that the military judge 

erred in not dismissing the charge alleging receipt of child 

pornography, based on violation of his speedy trial rights under 

R.C.M. 707.5

 Appellant’s Brief at 8. Specifically, the 

appellant argues that because the dismissal of the child 

pornography charge was a “subterfuge to avoid exceeding the 120 

day time period” under R.C.M. 707, the speedy trial clock was 

not reset by the 30 June 2013 preferral. Appellant’s Brief at 

8. Instead, the appellant argues that he was not brought to 

trial on the child pornography charge until day 185 -- violating 

his right to a speedy trial under R.C.M. 707. We disagree with 

the appellant’s underlying premise and his speedy trial 

calculation.

We review de novo a military judge's conclusion of whether 

an accused received a speedy trial under R.C.M. 707. United 

States v. Cooper, 58 M.J. 54, 57-58 (C.A.A.F. 2003); United 

States v. Doty, 51 M.J. 464, 465 (C.A.A.F. 1999). “The military 

judge's findings of fact are given ‘substantial deference and 

will be reversed only for clear error.’” Doty, 51 M.J. at 465

(quoting United States v. Edmond, 41 M.J. 419, 420 (C.A.A.F 

1995)). Having examined the record of trial, including the 

extensively litigated pretrial motion, we find that the military 

judge's findings of fact are clearly supported by the record. 

AE LXX at 2-3. Accordingly, we adopt them as our own.

The appellant’s argument is premised on whether the 

dismissal of the child pornography charge was a subterfuge to 

avoid violating R.C.M. 707. In this case, the military judge 

specifically ruled that the trial counsel’s dismissal on 9 July 

2013 of the child pornography charge at the direction of the CA, 

was neither improper nor a subterfuge. AE LXX at 4-6. We 

agree. 

 

5 The appellant does not argue a violation of his speedy trial rights under 

either the Fifth or Sixth Amendment. Additionally, the appellant concedes 

that because the indecent act charge under Article 120, UCMJ, was dismissed 

by the military judge, his speedy trial rights were not violated as to that 

charge. Appellant’s Brief of 7 Apr 2014 at 8 n.8. Thus, we consider only 

the speedy trial implications of Charge I (receipt of child pornography).
5

Absent a subterfuge, the speedy-trial clock is reset once 

charges are dismissed. United States v. Anderson, 50 M.J. 447, 

448 (C.A.A.F. 1999); R.C.M. 707(b)(3)(A). If charges are repreferred, a new 120-day period begins on the date of repreferral. United States v. Tippit, 65 M.J. 69, 73 (C.A.A.F. 

2007); R.C.M. 707(b)(3)(A).

In this case, the appellant was not subject to any type of 

pretrial restraint. The child pornography charge (Charge I) was 

preferred on 30 June 2013 and the appellant was brought to trial 

on that charge on 29 July 2013. The military judge excluded the 

dates from 8 until 19 July 2013 based on a defense-requested 

continuance. Thus, for accountability under R.C.M. 707, the 

military judge concluded that the appellant was brought to trial 

on day 13. R.C.M. 707(c) (stating that defense pretrial delays 

approved by the military judge shall be excluded for purposes of 

calculating the speedy trial requirements under R.C.M. 707). We 

agree. Accordingly, the appellant was clearly brought to trial 

on the child pornography charge within the 120-day requirement 

outlined in R.C.M. 707.

Forum Request

Although not raised by the appellant as an assignment of 

error, we note that the military judge did not obtain on the 

record the appellant’s personal request for trial by enlisted 

members. The appellant submitted a request signed by his trial 

defense counsel; however, it was not personally signed by the 

appellant. AE LXXV. While this failure represented a violation 

of Article 25(c)(1), UCMJ, under the circumstances of this case, 

there was substantial compliance with Article 25 and the error 

did not prejudice the substantial rights of the appellant. 

United States v. Townes, 52 M.J. 275, 276-77 (C.A.A.F. 2000).
6

Conclusion

The findings and the sentence as approved by the CA are 

affirmed.6

For the Court

 

 

 

R.H. TROIDL

Clerk of Court 

 

6 Although not raised by the appellant, there remains a question of whether 

the military judge properly calculated the maximum punishment of confinement 

for twenty-five years. Record at 834. The appellant’s offenses occurred 

between September and October of 2010. At that time the maximum punishment 

for receipt of child pornography was confinement for twenty years. Title 18 

U.S.C. § 2252A(a)(2). However, on 13 December 2011, the President issued 

Executive Order (EO) 13593, which amended the Manual to include listing child 

pornography as an offense under Article 134, UCMJ. The EO set the maximum 

punishment for receipt of child pornography at ten years. Rule for CourtMartial 1003 is silent on the question of whether a “listed” offense or 

“closely related” offense must be in Part IV of the Manual at the time the 

offenses are committed and at the time of trial to apply for purposes of 

sentence calculation. If R.C.M. 1003 requires both, the military judge 

correctly advised the members using the analogous child pornography offense

under Title 18 U.S.C. § 1152A(a)(2). If, however, R.C.M. 1003 only requires 

that the “listed” or “closely related” offense be in the Manual at the time 

of trial, the military judge should have advised the members that the 

appellant was facing confinement for fifteen years (ten years for receipt of 

child pornography and five years for committing an indecent act). We need 

not answer this question because even assuming that the military erred in his 

maximum punishment calculation, we find that based on the sentence adjudged, 

the maximum sentence calculation was of no overriding concern or influence on 

the members sufficient to demonstrate a colorable claim of prejudice. Art.

59(a), UCMJ.