United States v. Dooley , 61 M.J. 258 ( 2005 )

IN THE CASE OF
UNITED STATES, Appellee
v.
Allen L. DOOLEY, Photographer’s Mate Second Class
U.S. Navy, Appellant
No. 05-6002
Crim. App. No. 200401792
United States Court of Appeals for the Armed Forces
Argued May 17, 2005
Decided August 3, 2005
GIERKE, C.J., delivered the opinion of the Court, in which
CRAWFORD, EFFRON, BAKER, and ERDMANN, JJ., joined.
Counsel
For Appellant: Captain Richard A. Viczorek, USMC (argued).
For Appellant: Major Kevin C. Harris, USMC (argued); Commander
Charles N. Purnell II, JAGC, USN (on brief).
Military Judge: Lewis T. Booker Jr.
This opinion is subject to revision before final publication.
United States v. Dooley, No. 05-6002/NA
Chief Judge GIERKE delivered the opinion of the Court.
The military judge dismissed Appellant’s case with
prejudice based on a violation of Rule for Courts-Martial
(R.C.M.) 707, the right to a speedy trial. The United States
Navy-Marine Corps Court of Criminal Appeals (CCA) agreed that a
violation of R.C.M. 707 had occurred but disagreed with the
military judge’s decision to dismiss with prejudice and reversed
his decision.1 This case illustrates the difficulty an
intermediate appellate court faces when balancing the deference
due a military judge under the abuse of discretion standard with
the potential drastic remedy of dismissal with prejudice. We
granted review to determine if the lower court erred in
reversing the military judge’s decision.2
We hold that the military judge did not abuse his
discretion in dismissing Appellant’s case with prejudice. We
therefore reverse the opinion of the Navy-Marine Corps Court of
Criminal Appeals and reinstate the decision of the military
judge to dismiss with prejudice.
1
See United States v. Dooley, No. NMCCA 200401792, 2005 CCA
LEXIS 90, 2005 WL 1389137 (N-M. Ct. Crim. App. Mar. 23, 2005).
2
More specifically, we granted review of the following issue:
Whether the Navy-Marine Corps Court of Criminal Appeals
erred by applying the wrong standard of review when it
reversed the military judge’s decision to dismiss the
charge and specification with prejudice?
United States v. Dooley, 61 M.J. __, No. 05-6002, 2005 CAAF
LEXIS 458 (C.A.A.F. May 5, 2005).
2
United States v. Dooley, No. 05-6002/NA
PROCEDURAL BACKGROUND
In 1998, Appellant was tried and convicted of the receipt
and possession of child pornography in violation of Article
134(3), Uniform Code of Military Justice (UCMJ).3 Appellant
served seven months of confinement. This Court set aside his
conviction on June 29, 2004,4 based on our decision in United
States v. O’Connor.5 The Judge Advocate General of the Navy then
returned the case to the convening authority, who decided to
retry Appellant for the receipt and possession of child
pornography. At the first session of the special court-martial
on December 10, 2004, the military judge found a violation of
Appellant’s right to a speedy trial. The military judge
performed an analysis of the factors listed in R.C.M. 7076 and
dismissed the case with prejudice. The Government filed an
appeal under Article 62, UCMJ,7 and the Navy-Marine Corps Court
of Criminal Appeals subsequently reversed the military judge’s
3
10 U.S.C. § 934 (2000). Appellant was convicted of violating
18 U.S.C. § 2252A, incorporated under Article 134, UCMJ.
4
United States v. Dooley, 60 M.J. 130 (C.A.A.F. 2004).
5
58 M.J. 450, 453 (C.A.A.F. 2003).
6
R.C.M. 707 states that, “[i]n determining whether to dismiss
charges with or without prejudice, the court shall consider,
among others, each of the following factors: 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).
7
10 U.S.C. § 862 (2000).
3
United States v. Dooley, No. 05-6002/NA
ruling, determining that he abused his discretion in dismissing
the case with prejudice.8
I. The military judge’s decision to dismiss with prejudice9
The military judge first concluded that the Government had
violated R.C.M. 707 because Appellant was arraigned more than
120 days after the convening authority received the record. The
military judge found that the record of trial, along with this
Court’s opinion, was received at the headquarters of the
Commander, Naval Air Force, U.S. Atlantic Fleet (COMNAVAIRLANT)
on July 13, 2004. The Government’s docketing request, placed on
the docket on November 9, 2004, did not request arraignment
until November 15. The military judge thus determined that the
docketing request was filed 139 days after the decision and 125
days after the record was received at COMNAVAIRLANT, and that
accordingly the case must be dismissed.
The military judge then considered the four factors listed
under R.C.M. 707 to determine whether the dismissal should be
with prejudice. First, the military judge considered the
seriousness of the offense. He stated that the “allegations
against [Appellant] are serious, both in terms of the punishment
8
Dooley, 2005 CCA LEXIS 90, 2005 WL 1389137.
9
We note that the military judge’s order was originally missing
page four when it was filed with the Navy-Marine Corps CCA as
Appellate Exhibit XVI. On January 26, 2005, appellate
government counsel filed a Motion to Attach with the CCA
correcting the error.
4
United States v. Dooley, No. 05-6002/NA
that they could have carried but for Article 63, UCMJ, . . .,
and for the societal norms that they implicate.”
Considering the factors that led to dismissal, the military
judge acknowledged that the Government’s efforts to review the
case were “praiseworthy,” and that the “efforts to minimize the
impact on the accused are to be applauded.” But he found that
“inordinate delay occurred at several points in the process.”
More specifically, the military judge found that the “courtesy
screening”10 of the “relatively small record of trial (under 150
pages)” took over a month. Then, two more months elapsed
“pending the referral decision; granted, some of that time was
necessary to locate the evidence and to evaluate it, but the
Government has not made a convincing case that all of that time
was necessary.” Furthermore, it took nearly two weeks for the
Government to route a docketing request. The military judge
also found that “[e]ven scheduling the hearing on the speedy
trial motion revealed some lack of urgency on the part of the
Government . . . .” Finally, he recognized that “the Defense
10
Although the military judge does not define the time period
which he labeled as the “courtesy screening,” it appears that
the military judge was most likely referring to the period
between July 20 and August 23. Based on the testimony of
Lieutenant Biles, who was working in the COMNAVAIRLANT Staff
Judge Advocate Office at the time, this time elapsed while the
Trial Service Office was reviewing Appellant’s case and
determining whether to recommend reprosecuting Appellant. About
two more months then elapsed between August 23 and October 22,
when Appellant was recalled to be reprosecuted.
5
United States v. Dooley, No. 05-6002/NA
had by that point requested a continuance, but the Government
should still have been prepared to go at an earlier date.”
The third R.C.M. 707 factor is the effect of a retrial on
the administration of justice. The military judge asserted that
R.C.M. 707 would lose its plain meaning if a trial is allowed to
proceed in this case. Interpreting the rule, he focused on the
accountability of the convening authority over his subordinate
servicemembers. The military judge rejected the Government’s
implicit attempt to insulate the convening authority from the
delay caused by subordinates. He noted that the rule refers to
a “responsible convening authority,” rather than a “legal
advisor to the responsible convening authority.” If a convening
authority was not held accountable for time awaiting legal
advice, the military judge reasoned, “[a] command without a
staff judge advocate attached would be able to drag out
proceedings ad infinitum, waiting on the desired legal advice.
Commands with labyrinthe routing systems would be given a pass
from the requirements of the rule.” The military judge
concluded by stating that he does “not fear that commanders will
bypass necessary staff advice in order to comply with the rule;
rather, the court believes that commanders will impose
reasonable, attainable milestones for action in a given case.”
6
United States v. Dooley, No. 05-6002/NA
Finally, the military judge considered “any prejudice
resulting [to Appellant] from [the] denial of a speedy trial.”11
He found that Appellant is “suffering prejudice daily.”
Recognizing that Appellant is earning pay and allowances
established by law and that the Government put forth
“substantial effort” to minimize the impact on Appellant, the
military judge found that “he is in fact being subjected to
punishment in the Transient Personnel Unit without due process.
He is a photographer’s mate who is not permitted to work in his
rating. He is a second class petty officer who is not
supervising troops.”
II. The Navy-Marine Corps Court of Criminal Appeals’ review of
the military judge’s decision
The CCA adopted the military judge’s finding that more than
120 days passed between the date the convening authority
received the record of trial and the date the Government was
prepared to arraign Appellant.12 Thus, it agreed that there was
a violation of R.C.M. 707.13 But the lower court concluded that
the military judge abused his discretion in dismissing with
prejudice.14
11
See R.C.M. 707(d).
12
See Dooley, 2005 CCA LEXIS 90, at *5-*7, 2005 WL 1389137, at
*2.
13
Id.
14
2005 CCA LEXIS 90, at *10-*16, 2005 WL 1389137, at *4-*5.
7
United States v. Dooley, No. 05-6002/NA
Regarding the first factor under R.C.M. 707, the CCA “fully
concur[red]” with the military judge’s finding that Appellant’s
crimes were serious.15 However, the court disagreed with the
military judge’s analysis of the other three factors. Regarding
the first factor -– the facts and circumstances that led to the
delay -- the CCA determined that the military judge erred by
imposing a higher standard on the Government under R.C.M. 707
than is imposed under Article 10, UCMJ.16 Under Article 10, it
must be shown that the Government did not proceed with
“reasonable diligence”17 or that it acted with “intentional
dilatory conduct.”18 The CCA found no evidence of either in this
case.19 Furthermore, “brief periods of inactivity in an
otherwise active prosecution are not unreasonable or
oppressive.”20 Concluding its discussion of the first factor,
the CCA disagreed with the military judge that “this case of
‘under 150 pages’ should not have taken so long to review.” The
CCA stated that, because the case was reversed based on this
Court’s decision in O’Connor, “the Government was obligated to
locate the evidence and evaluate it to determine whether the
15
2005 CCA LEXIS 90, at *10, 2005 WL 1389137, at *4.
16
2005 CCA LEXIS 90, at *11-*12, 2005 WL 1389137, at *4.
17
United States v. Kossman, 38 M.J. 258, 262 (C.M.A. 1993).
18
United States v. Edmond, 41 M.J. 419, 422 (C.A.A.F. 1995).
19
Dooley, 2005 CCA LEXIS 90, at *11, 2005 WL 1389137, at *4.
20
Id. (quoting United States v. Tibbs, 15 C.M.A. 350, 353, 35
C.M.R. 322, 325 (1965)).
8
United States v. Dooley, No. 05-6002/NA
images [Appellant] had received and possessed were images of
actual children.”21
Discussing the effect of a retrial on the administration of
justice, the CCA asserted that the military judge’s analysis
“seems wide of the mark,” because “he focuses solely on the
question of when a responsible CA receives the record and the
opinion authorizing a rehearing. That simply addresses the
question of when the speedy trial clock began to tick in this
case, and not the impact on the administration of justice.”22
The lower court noted that missing from the military judge’s
analysis is any consideration of the fact that this case was
returned because the Supreme Court, in Ashcroft v. Free Speech
Coalition,23 struck down a portion of the statute Appellant was
convicted of violating.24 The CCA then determined that the
effect of a retrial is “relatively neutral . . . . Due to the
limited holding in Free Speech Coalition, the Government is
allowed an opportunity to retry [Appellant] and [Appellant]
would be accorded all his legal rights.”25
Moreover, the lower court disagreed with the military
judge’s assessment of prejudice against Appellant.26 The CCA
agreed with the Government that any prejudice experienced by
21
2005 CCA LEXIS 90, at *12, 2005 WL 1389137, at *4.
22
Id.
23
535 U.S. 234 (2002).
24
2005 CCA LEXIS 90, at *12-*13, 2005 WL 1389137, at *4.
25
2005 CCA LEXIS 90, at *13, 2005 WL 1389137, at *4.
26
2005 CCA LEXIS 90, at *13-*14, 2005 WL 1389137, at *5.
9
United States v. Dooley, No. 05-6002/NA
Appellant “is incidental to his being activated to stand trial
and not a result of any delay on the part of the Government.”27
The lower court noted that “also missing from the military
judge’s analysis is consideration of the fact that” Appellant
was not on active duty for 100 of the 125 days it took the
Government to be prepared to arraign Appellant from the date the
“responsible CA received the record.”28 Rather, Appellant was
recalled to active duty on October 22, 2004, and the Government
sought to arraign him on November 15, twenty-five days later.29
Finally, the CCA noted that the military judge did not
consider the Discussion to R.C.M. 707(c)(1), which provides that
the excludable periods of time from the 120-day calculation
include the “time to process a member of the reserve component
to active duty for disciplinary action.”30 The CCA finds the
situation in this case analogous to recalling a servicemember to
active duty.31 It asserted that, similar to the situation in
United States v. Dies,32 “the CA could have exercised his
discretion and excluded a portion of the period of time during
which [Appellant] was still in an inactive duty status, avoiding
this entire R.C.M. 707 issue.”33
27
2005 CCA LEXIS 90, at *13, 2005 WL 1389137, at *5.
28
2005 CCA LEXIS 90, at *13-*14, 2005 WL 1389137, at *5.
29
2005 CCA LEXIS 90, at *14, 2005 WL 1389137, at *5.
30
Id. (citing R.C.M. 707(c)(1) discussion).
31
Id.
32
45 M.J. 376, 378 (C.A.A.F. 1996).
33
Dooley, 2005 CCA LEXIS 90, at *14, 2005 WL 1389137, at *5.
10
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The CCA concluded that “this case is not a close call.”34
It held, therefore, “that the military judge clearly abused his
discretion when he dismissed the Charge and Specifications . . .
with prejudice.”35
DISCUSSION
Under R.C.M. 707, the military judge is directed to apply
certain factors in determining a remedy for a speedy trial
violation, and then decide whether those factors lead to the
conclusion that the case should be dismissed with or without
prejudice. Under an abuse of discretion standard, mere
disagreement with the conclusion of the military judge who
applied the R.C.M. 707 factors is not enough to overturn his
judgment. The 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.36 We
conclude that, in this case, the Navy-Marine Corps Court of
Criminal Appeals erred in reversing the military judge’s
decision because it applied an improper standard of review.
34
2005 CCA LEXIS 90, at *15, 2005 WL 1389137, at *5.
35
Id.
36
See United States v. Sullivan, 42 M.J. 360, 363 (C.A.A.F.
1995).
11
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I. The standard of review
United States v. Gore37 presented us with an issue similar
to the one in this case. In Gore, the military judge dismissed
all charges with prejudice as a remedy for unlawful command
influence and the Government appealed, pursuant to Article 62,
UCMJ.38 Although the CCA agreed with the military judge that
there was unlawful command influence, it determined that the
military judge abused his discretion in dismissing the case with
prejudice.39 We stated that, because neither the lower court nor
the Government challenged the finding of unlawful command
influence, the real issue was “whether the military judge erred
in fashioning the remedy.”40
Similarly, in this case, neither the Government nor the
lower court disputes that a violation of R.C.M. 707 occurred.
Rather, both maintain that the case should not have been
dismissed with prejudice and that the Government should have the
opportunity to retry Appellant. The pertinent question for our
review, therefore, is whether the military judge erred in his
conclusion that an analysis of the factors listed in R.C.M. 707
supports dismissal of Appellant’s case with prejudice.
37
60 M.J. 178 (C.A.A.F. 2004).
38
Id. at 179.
39
Id.
40
Id. at 186-87.
12
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In Gore, we explained the deference that must be accorded a
military judge under the abuse of discretion standard. We
stated:
An abuse of discretion means that when judicial action is
taken in a discretionary manner, such action cannot be set
aside by a reviewing court unless it has a definite and
firm conviction that the court below committed a clear
error of judgment in the conclusion it reached upon a
weighing of the relevant factors . . . . We will reverse
for an abuse of discretion if the military judge’s findings
of fact are clearly erroneous or if his decision is
influenced by an erroneous view of the law . . . . Further,
the abuse of discretion standard of review recognizes that
a judge has a range of choices and will not be reversed so
long as the decision remains within that range.41
“[D]ismissal is a drastic remedy and courts must look to
see whether alternative remedies are available.”42 But dismissal
is “appropriate when an accused would be prejudiced or no useful
purpose would be served by continuing the proceedings.”43
Deference to the military judge’s decision is particularly
prudent in those cases when a violation of R.C.M. 707(d) has
occurred because, as the legislative history of the Speedy Trial
Act44 demonstrates, Congress clearly intended trial judges to
41
Gore, 60 M.J. at 187 (internal quotations and citations
omitted).
42
Id. (citing United States v. Cooper, 35 M.J. 417, 422 (C.M.A.
1992)).
43
Id. (citing United States v. Green, 4 M.J. 203, 204 (C.M.A.
1978)).
44
R.C.M. 707(d) is based on the Speedy Trial Act of 1974, 18
U.S.C. § 3162 (2000). See Manual for Courts-Martial, United
States (2002 ed.) Analysis of Rules of Courts-Martial A21-42.
Whether to require dismissal with prejudice in certain
circumstances was the subject of substantial debate when
Congress considered the Speedy Trial Act. See United States v.
13
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have “guided discretion” whether to dismiss with or without
prejudice.45 Furthermore, “neither remedy was given priority.”46
Rather, a military judge’s decision is guided by the factors
articulated in R.C.M. 707 and can be reversed only for a clear
abuse of discretion. More specifically, the military judge’s
decision in this case should be affirmed unless his factual
findings are clearly erroneous or his decision in applying the
R.C.M. 707 factors was influenced by an incorrect view of the
law.47
II. Application of the R.C.M. 707 factors
Under R.C.M. 707, the first factor that a military judge
must consider in determining whether to dismiss with prejudice
is the seriousness of the offense. In this case, the military
judge and the CCA agree that Appellant’s crimes were serious.
Taylor, 487 U.S. 326, 334 (1988). “[P]roponents of uniformly
barring reprosecution argu[ed] that without such a remedy the
Act would lack any real force, and opponents express[ed] fear
that criminals would unjustly escape prosecution.” Id. (citing
Anthony Partridge, Legislative History of Title I of the Speedy
Trial Act of 1974 31-33 (1980)). The compromise was that the
decision whether to dismiss with prejudice would be left to the
discretion of trial judges, guided by certain factors. Id. at
335.
45
Taylor, 487 U.S. at 335.
46
Id.; see also Edmond, 41 M.J. at 421 (noting that “[n]either
the dismissal with prejudice nor without prejudice has a
priority”).
47
See Taylor, 487 U.S. at 337 (“Factual findings . . . are . . .
entitled to substantial deference and will be reversed only for
clear error . . . . [W]hen the statutory factors are properly
considered, and supporting factual findings are not clearly in
error, the district court’s judgment of how opposing
considerations balance should not lightly be disturbed.”).
14
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The finding that the receipt and possession of child pornography
is a serious offense, in its impact on both victims and society,
is not clearly erroneous.
In analyzing the facts and circumstances that led to his
decision to dismiss with prejudice, the military judge weighed
the efforts of the Government that he found “praiseworthy” and
“to be applauded” against the factors that contributed to the
delay. He clearly articulated the basis for his findings –-
that, despite the good efforts by the Government, all the
elapsed time was not “necessary” and it showed a “lack of
urgency” on the part of the Government. We agree with the CCA
that the military judge did not find “intentional dilatory
conduct on the part of the Government” and that he did not
explicitly state that the Government’s attitude was “truly
neglectful.”48 Whether the military judge used these exact
phrases, however, is not the test under the abuse of discretion
standard. Rather, the question is whether his findings of fact
were “‘clearly erroneous or if his decision is influenced by an
erroneous view of the law.’”49 The CCA did not find that the
military judge’s factual findings were clearly erroneous.
Rather, it stated the military judge’s findings were factually
48
See Edmond, 41 M.J. at 421-22 (holding that the military judge
did not abuse his discretion in dismissing charges without
prejudice under R.C.M. 707 because there was no “intentional
dilatory conduct” by the Government and there was little
prejudice suffered by the appellee).
49
Gore, 60 M.J. at 187 (citations omitted).
15
United States v. Dooley, No. 05-6002/NA
correct and “clearly supported by th[e] record.”50 Because the
CCA was essentially asserting that it disagreed with the
military judge that the Government’s actions did not constitute
“truly neglectful” conduct, we agree with Appellant that the CCA
was substituting its judgment for that of the military judge.
Therefore, the CCA erred by performing a de novo review of the
“facts and circumstances that le[d] to dismissal.”51
The third factor to consider under R.C.M. 707(d) is the
effect of the retrial on the administration of justice.52 We
believe the military judge was correct to note that the plain
meaning of R.C.M. 707 may be thwarted if trial is allowed to
proceed in this case. The rule requires the military judge to
dismiss the case but, if the military judge dismisses without
prejudice and the Government decides to reprosecute the accused,
the remedy leads to further delay.
We agree with the CCA’s interpretation that the “effect of
a retrial is relatively neutral in this case.”53 On the one
50
Dooley, 2005 CCA LEXIS 90, at *6, 2005 WL 1389137, at *2.
51
R.C.M. 707(d).
52
See generally United States v. Scott, 743 F. Supp. 400, 407-08
(D. Md. 1990). The court determined there was a “rather even
balance” between the arguments of the two parties regarding the
administration of justice factor. It weighed the defendant’s
argument –- that the justice system already has mechanisms to
ensure that the defendant will be punished for his alleged
misconduct –- against the Government’s argument –- that a
defendant will be able to avoid prosecution by entering plea
negotiations and refusing Government offers until a speedy trial
violation has occurred.
53
Dooley, 2005 CCA LEXIS 90, at *13, 2005 WL 1389137, at *4.
16
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hand, the Government’s interest in reprosecuting Appellant is
diminished because he served seven months of confinement in
1998. Thus, even if Appellant is reprosecuted and convicted, he
cannot serve any more confinement. On the other hand,
dismissing the case with prejudice means that Appellant will no
longer be a “convicted” possessor of child pornography due to
the 2004 decision to overturn his conviction. Additionally, as
noted by the CCA, his conviction was overturned because of the
Supreme Court’s holding in Ashcroft v. Free Speech Coalition.
If Appellant is retried, the Government would have the
opportunity to retry him in light of the new legal precedent and
Appellant would not be convicted based on an erroneously
overbroad definition of child pornography.
Although the CCA properly interpreted the effect of retrial
on the administration of justice, it did not clearly articulate
an appropriate basis to overturn the military judge’s decision.54
Rather than determining that the military judge was clearly
erroneous in any factual finding or that his decision was based
on an incorrect view of the law, the CCA stated that it did not
“concur” with the military judge’s decision and that it found
the effect of the retrial relatively neutral.55 Thus the CCA
failed to apply the correct legal standard in reversing the
ruling of the military judge.
54
2005 CCA LEXIS 90, at *11-*15, 2005 WL 1389137, at *4-*5.
55
2005 CCA LEXIS 90, at *12-*13, 2005 WL 1389137, at *4.
17
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The final factor that must be considered under R.C.M.
707(d) is prejudice to the accused. Prejudice may take many
forms, thus “such determinations must be made on a case-by-case
basis in the light of the facts.”56 Prejudice can include any
detrimental effect on Appellant’s trial preparation,57 or any
impact on the right to a fair trial.58 It can also include any
restrictions or burdens on his liberty,59 such as disenrollment
from school or the inability to work due to withdrawal of a
security clearance.60 Regarding prejudice to Appellant, the
military judge clearly articulated that he found Appellant was
“suffering prejudice daily.” He found that Appellant was “in
fact being subjected to punishment in the Transient Personnel
Unit without due process,” because he is a photographer’s mate
not allowed to work in his rating and a second class petty
officer not permitted to supervise troops.
The CCA stated that it “disagree[ed] with the assessment by
the military judge” and that it “concur[ed]” with the trial
counsel’s argument that any prejudice suffered by Appellant is
56
Taylor, 487 U.S. at 341 n.13.
57
Id. at 341.
58
Edmond, 41 M.J. at 422; see also Gore, 60 M.J. at 187-88
(affirming the military judge’s dismissal with prejudice where
the military judge identified the extent and negative impact of
the unlawful command influence on the appellant’s right to a
fair trial).
59
Taylor, 487 U.S. at 341.
60
Edmond, 41 M.J. at 422.
18
United States v. Dooley, No. 05-6002/NA
incidental to recall for trial.61 Whether the CCA disagrees with
the military judge or concurs with the trial counsel is not the
standard of review. The military judge clearly articulated his
reasoning for believing Appellant was being unfairly prejudiced.
Therefore, the CCA could not reverse the military judge’s
prejudice finding absent a determination that it was clearly
erroneous.
Furthermore, other evidence of prejudice was on the record
and before the military judge. Approximately sixteen pages of
the record was devoted to exploring the prejudice Appellant was
suffering because he was recalled to active duty after five
years of appellate leave.62 We note these other forms of
prejudice solely to emphasize that the military judge was in the
best position to assess the prejudice Appellant was suffering
because he questioned Appellant extensively about his life since
being recalled. We need not, however, consider these factors in
concluding that the factual findings of the military judge were
neither clearly erroneous nor based on an incorrect view of the
law. Therefore, the military judge did not abuse his discretion
61
Dooley, 2005 CCA LEXIS 90, at *13, 2005 WL 1389137, at *5.
62
According to Appellant’s testimony, not only did he lose his
job, but because he was informed on October 14 that he would be
recalled on October 18, he also lost his seniority status and
any chance of returning to that job. Because he did not give
the required two weeks notice before quitting, his boss was
“shocked and amazed” at Appellant being recalled and has failed
to contact him since. Additionally, Appellant’s fiancée, a
homemaker, lost the benefits she was entitled to under
Appellant’s former employment and began receiving welfare.
19
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and the CCA erred in reversing his decision to dismiss with
prejudice.
DECISION
The decision of the Navy-Marine Corps Court of Criminal
Appeals is reversed. The decision of the military judge is
reinstated.
20