United States v. MYERS

This opinion is subject to administrative correction before final disposition. Before de GROOT, MOSLEY, and HARRIS Appellate Military Judges _________________________ UNITED STATES Appellant v. Keevan T. MYERS Sergeant (E-5), U.S. Marine Corps Appellee No. 202600147 _________________________ Argued: 14 October 2026—Decided: 6 November 2026 Appeal by the United States Pursuant to Article 62, UCMJ Military Judge: Gable F. Hackman Before a special court-martial convened at Marine Corps Base Camp Lejeune, North Carolina. For Appellant: Lieutenant Erin H. Bourneuf, JAGC, USN (argued) Lieutenant Commander John T. Cole, JAGC, USN (on brief) Lieutenant Colonel A. Louis Evans, USMC (on brief) For Appellee: Lieutenant Commander Andrew S. Clayton, JAGC, USN  United States v. Myers, NMCCA No. 202600147 Opinion of the Court Judge HARRIS delivered the opinion of the Court, in which Senior Judge de GROOT and Judge MOSLEY joined. _________________________ This opinion does not serve as binding precedent but may be cited as persuasive authority under NMCCA Rule of Appellate Procedure 30.2. _________________________ HARRIS, Judge: This Government appeal under Article 62(a)(1)(A), Uniform Code of Mili- tary Justice (UCMJ),1 asks the following: Whether the Military Judge erred as a matter of law and abused his discretion when he dismissed Specification 1 of the Charge with prejudice, finding a violation of Rule for Courts-Martial (R.C.M.) 707. The military judge erred in granting relief under R.C.M. 707(d) despite a valid dismissal that reset the speedy-trial clock. Accordingly, we grant the Govern- ment’s appeal. I. BACKGROUND On 17 October 2025, the Government preferred a single charge and speci- fication against Appellee for a violation of Article 92, UCMJ,2 alleging that Ap- pellee wrongfully used a substance prohibited by ALNAV 074/20, dated 24 July 2020.3 On 9 January 2026, the Government preferred an additional charge and single specification for another violation of Article 92, UCMJ, alleging that Ap- pellee wrongfully entered an off-limits establishment in violation of Marine Corps Order 1620.2D, dated 27 July 2006.4 On 20 January 2026, the convening authority referred the charge, the additional charge, and their respective spec- 1 10 U.S.C. § 862(a)(1)(A). 2 10 U.S.C. § 892. 3 Sec’y of the Navy, All Dep’t Admin. Msg. 074/20, Prohibition on the Use of Hemp products Updated. 4 Armed Forces Disciplinary Control Boards and Off-Installation Liaison and Op- erations. 2  United States v. Myers, NMCCA No. 202600147 Opinion of the Court ifications to a single special court-martial. That court-martial arraigned Ap- pellee on 29 January 2026, 104 days after the preferral of the initial charge and specification. The convening authority then withdrew the charges and specifications on 24 February 2026 and referred them anew the following day. This withdrawal was to allow the Government to correct charging deficiencies. The new court- martial arraigned Appellee on 6 March 2026, 140 days following preferral of the initial charge and specification. Appellee did not assert a violation of R.C.M. 707 or move to dismiss the charges and specifications at this court- martial. On 17 March 2026, the convening authority again withdrew the charges and specifications, this time dismissing them without prejudice. The convening authority did so to allow the Government to perfect its evidence after the mil- itary judge excluded evidence obtained pursuant to an unlawful subpoena. Though not subject to restraint, and having no charges pending against him, Appellee then demanded a speedy trial on 31 March 2026. On 24 April 2026, the Government preferred the Charge and two specifications covering essen- tially the same conduct as the prior charges and specifications. The convening authority referred this new charge and both specifications to the current court- martial on 25 April 2026. This interlocutory appeal concerns this charge and the first of these two specifications. The court-martial arraigned Appellee ten days later on 5 May 2026. Trial defense counsel moved to dismiss the Charge and its specifications with prejudice, alleging a violation of Appellee’s right to a speedy trial under both the Sixth Amendment and R.C.M. 707. Appellee alleged that the dismis- sal of the charges and specifications referred to the second court-martial was done for an improper purpose. The military judge addressed the motion at an Article 39(a) session in advance of trial. He initially denied the motion to dis- miss, finding that the Government withdrew and dismissed the charges and specifications to correct procedural defects in a subpoena that resulted in the exclusion of otherwise admissible evidence. He correctly concluded that this was not an improper basis for withdrawal and determined that the convening authority’s dismissal of charges restarted the R.C.M. 707 clock. However, the defense counsel asked the military judge to clarify his ruling, prompting him to reconsider. The military judge permitted the parties to sub- mit additional briefings and then ruled anew. In his new oral ruling, issued immediately before trial on the merits was set to begin, the military judge de- termined that the 140-day period between the initial preferral on 17 October 2025 and the second arraignment on 6 March 2026 constituted a violation of R.C.M. 707. He concluded there had been no waiver or forfeiture of the R.C.M. 3  United States v. Myers, NMCCA No. 202600147 Opinion of the Court 707 claim. The military judge then addressed the timing of the motion as fol- lows: This Court concludes that the line of cases extending from Brit- ton, Leahr, and to more recent cases such as United States v. Guyton . . . permit the defense to raise R.C.M. 707 objections at subsequent courts-martial convened and post a voluntary with- drawal and/or dismissal on the part of the government.5 Ultimately, the military judge dismissed Specification 1 of the Charge with prejudice, citing the Government’s negligent conduct as the main factor justi- fying that relief. He then drafted a written supplement to the oral ruling. The military judge did not address Appellee’s Sixth Amendment claim in his oral ruling or written supplement, nor did he directly address Appellee’s argument that the dismissal of 17 March 2026 was for an improper purpose, despite hav- ing previously concluded that there was a proper purpose. II. DISCUSSION In reviewing a Government interlocutory appeal, this Court may act only on matters of law.6 We are bound by the military judge’s findings of fact, unless they are unsupported by the evidence of record or are clearly erroneous.7 How- ever, whether an accused received a speedy trial is a legal question we review de novo.8 An accused must be brought to trial within 120 days after preferral of charges. For purposes of R.C.M. 707, an accused is brought to trial . . . at the time of arraignment. Ordinarily, when an accused is not under pretrial restraint and charges are dis- missed, a new 120-day time period begins on the date of re-pre- ferral. If charges are merely withdrawn and not subsequently dismissed, however, the R.C.M. 707 speedy-trial clock continues to run.9 5 R. at 80. 6 Article 62(b), UCMJ; R.C.M. 908(c)(2); United States v. Cossio, 64 M.J. 254, 256 (C.A.A.F. 2007). 7 United States v. Lincoln, 40 M.J. 679, 683 (N.M.C.M.R. 1994), aff’d in part and set aside in part, 42 M.J. 315, 321–22 (C.A.A.F. 1995). 8 United States v. Wilder, 75 M.J. 135, 138 (C.A.A.F. 2015) (quoting United States v. Leahr, 73 M.J. 364, 367 (C.A.A.F. 2014)). 9 United States v. Guyton, 82 M.J. 146, 151 (C.A.A.F. 2022) (citation modified). 4  United States v. Myers, NMCCA No. 202600147 Opinion of the Court “To determine whether an accused’s R.C.M. 707 rights were violated by a con- vening authority’s dismissal and re-preferral, we apply the legal standard set out in Leahr”: unless the dismissal is a subterfuge to violate an accused’s rights, or undertaken for some other improper reason, we will give a clear in- tent to dismiss its full effect.10 “Proper” purposes are not only driven by a legit- imate command reason, but also must not unfairly prejudice an accused in light of the particular facts of the case.11 The military judge erred in concluding that the Government violated R.C.M. 707. While an accused may raise a challenge to a dismissal and re- referral at a subsequent court-martial, none of the authorities cited by the mil- itary judge—Britton, Leahr, nor Guyton—stand for the proposition that the accused may do so in the absence of subterfuge or an improper purpose. Rather, each of those cases examined whether a dismissal occurred and treated the dismissal as determinative of whether there was any violation of the Rule. Ab- sent a finding that the dismissal was subterfuge or undertaken for an improper purpose, the dismissal “reset the clock” and extinguished any speedy trial claim Appellee could have, but did not, raise during the second court-martial. Appellee insists that he suffered unfair prejudice from the loss of the latent R.C.M. 707 claim, such that the dismissal was “improper.” The only pertinent findings made by the military judge demonstrate otherwise. Prior to his about- face on the decision to grant the Defense motion, the military judge expressly concluded that the withdrawal was not improper. He found that there was no forum shopping as had occurred in Vanover v. Clark,12 and that the case was similar to United States v. Underwood,13 where there had been no unfair prej- udice because the matter was referred to the same forum and was tried before the same judge. He further found that the dismissal was motivated by the con- vening authority’s stated desire to obtain lawfully admissible evidence and was “consistent with the government’s interest in ensuring that they complied with a good faith effort to obtain evidence through proper procedures.”14 We agree. Finally, the military judge noted that there was no pretrial restraint, and that Appellee had actually requested a lengthier trial timeline than the one ulti- mately approved by the Court. 10 United States v. Hendrix, 77 M.J. 454, 456–57 (C.A.A.F. 2018) (citing Leahr, 73 M.J. at 369). 11 See United States v. Underwood, 50 M.J. 271, 276 (C.A.A.F. 1999) (citations omit- ted). 12 27 M.J. 345 (C.M.A. 1988). 13 50 M.J. 271 (C.A.A.F. 1999). 14 R. at 30. 5  United States v. Myers, NMCCA No. 202600147 Opinion of the Court Nothing in the subsequent ruling or written supplement call these findings and conclusions into question. The military judge again found that the purpose of the withdrawal was to allow the Government to obtain admissible evidence. The record supports this finding. He never expressed a conclusion that the dis- missal was improper, and the record would not support such a conclusion. Even when asserting a vague unfairness in justifying his decision to dismiss the charges with prejudice rather than without prejudice, the military judge did not conclude that the dismissal was improper. The record also does not suggest any unfairness as a result of the dismissal. While it is possible Appellee suffered some nominal prejudice from the loss of a latent R.C.M. 707 claim, it cannot possibly be described as unfair under the circumstances. Appellee was not subject to pretrial restraint and had never expressed interest in a speedy trial. Despite litigating other motions at the second court-martial, Appellee never made a motion to dismiss for speedy trial reasons until after the dismissal had taken place. Surely, if there was any ac- tual harm resulting from the purported delay leading up to the second arraign- ment, Appellee would have made his motion to dismiss at that arraignment, not at a subsequent court-martial. The dismissal on 17 March 2026 was proper and reset the R.C.M. 707 clock, extinguishing any latent claim Appellee failed to raise at his second court-mar- tial. Accordingly, the military judge erred in concluding that the Government violated R.C.M. 707. III. CONCLUSION After careful consideration of the record, briefs, and argument of appellate counsel, the Government’s appeal is GRANTED. The military judge’s ruling dismissing Specification 1 of the Charge is REVERSED. The case is returned to the Judge Advocate General for remand to the military judge for further proceedings consistent with this opinion. FOR THE COURT: MARK K. JAMISON Clerk of Court 6