U.S. v. Talbot

• Decision Date: 31 July 1987
• Docket Number: No. 86-5541,86-5541
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Asa Richard TALBOT, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 991

825 F.2d 991

UNITED STATES of America, Plaintiff-Appellant, v. Asa Richard TALBOT, Defendant-Appellee.

No. 86-5541.

United States Court of Appeals, Sixth Circuit.

Argued Dec. 9, 1986.

Decided July 31, 1987.

Lionel R. Barrett, Jr. (argued), Nashville, Tenn., Richard McGee, for defendant-appellee.

Joe B. Brown, U.S. Atty., Nashville, Tenn., William T. Warren, III, Patty Merkamp Stemler (argued), Washington, D.C., for plaintiff-appellant.

Before ENGEL, KRUPANSKY and NELSON, Circuit Judges.

KRUPANSKY, Circuit Judge.

The plaintiff, the United States Government (the Government), appealed the district court's dismissal of an indictment against the defendant Asa Richard Talbot (the defendant or Talbot), which had charged him with assault with intent to commit a felony on a military reservation in violation of 18 U.S.C. Sec. 113.

The record disclosed the following facts. During the year 1985, the defendant Talbot, a medical doctor with a specialty in otolaryngology with the rank of colonel in the U.S. Army Medical Corps, was assigned to the Blanchfield Army Community Hospital, which military installation is geographically situated within the State of Tennessee. The defendant was accused of sexually molesting an eleven-year-old female patient while treating her for an ear infection on or about May 28 and 31, 1985. The girl and her mother reported the incidents to the Army Criminal Investigation Division (CID) at Fort Campbell, the situs of the hospital. On June 29, 1985, as a result of the complaint, Colonel Robert Kreutzmann (Col. Kreutzmann), the defendant's commanding officer, in an oral order: (1) relieved Talbot from his duties as a medical officer; (2) designated his living quarters as his duty station; and (3) directed Talbot to avoid all contact or association with the alleged victims or any witnesses. Subsequently, a sixteen-year-old female patient of the defendant also alleged that the defendant had sexually molested her on or about June 25 and 26, 1985 while treating her subsequent to a tonsillectomy.

On August 12, 1985, charges arising from the foregoing incidents, together with four additional alleged instances of sexual harassment of adult female military officers on the hospital staff, were preferred against the defendant by Col. Kreutzmann. An impartial officer was appointed to formally investigate the accusations pursuant to Article 32 of the Uniform Code of Military Justice (UCMJ) and to recommend disposition of the charges. The charges were subsequently dismissed without prejudice and the defendant was nominally transferred to another command at Fort Campbell on September 27, 1985 because of an appearance of command influence arising from a publicly expressed opinion attributed to Col. Kreutzmann that all instances of physician misconduct be referred to court-martial without evaluation of the underlying merit or circumstances of the accusations.

On October 8, 1985, new charges were preferred against Talbot predicated upon the incidents that had allegedly supported the previous military indictment and a second Article 32 pretrial investigation was conducted. On October 29, 1985, Major General Burton D. Patrick (Gen. Patrick), the commanding general of Fort Campbell, acting upon the disclosures of the second investigation, ordered a general court-martial be convened to consider the outstanding complaints against Talbot. The defendant requested and was granted a two-month continuance on November 8, 1985 and his trial was scheduled to commence on January 18, 1986.

On Friday, January 10, 1986, four days after the continuance had expired, defendant's counsel filed a motion to dismiss the pending charges, asserting a denial of the defendant's right to a speedy trial in derogation of Rules for Courts-Martial (R.C.M.) 707, which mandated the commencement of trial within 120 days "after notice to the accused of preferral of charges under R.C.M. 308 or the imposition of restraint under R.C.M. 304, whichever is earlier." R.C.M. 707(a). ¹ Defense counsel argued that the conditions imposed upon the defendant's liberty by Col. Kreutzmann on June 29, 1985 had triggered the 120-day limitation period, which expired on October 27, 1985, twelve days before defense counsel requested the two-month continuance. On Saturday, January 11, 1986, the day after the defendant's motion to dismiss was filed, the military prosecutors advised defense counsel of their election to withdraw all military charges against Talbot and to refer the matter to the United States Attorney for the Middle District of Tennessee for evaluation and further action. On or about Monday, January 13, 1986, subsequent to a review and discussion of the case with the military prosecuting authorities, the United States Attorney assumed jurisdiction of the inquiry. On January 14, 1986, Gen. Patrick ordered all outstanding charges pending against the defendant to be dismissed without prejudice to the government or the accused, noting that the United States Attorney had assumed jurisdiction of the case. Gen. Patrick's action was confirmed in a written order and memorandum on January 24, 1986.

A federal grand jury returned an indictment against the defendant on February 19, 1986. The true bill charged violations of 18 U.S.C. Sec. 113 in three counts: counts one and two alleged that the defendant had committed assault with intent to commit the felony of aggravated sexual battery on the eleven-year-old female patient; and count three charged assault with intent to commit the felony of sexual battery on the sixteen-year-old patient. ² The defendant appeared in court to answer the indictment on February 21, 1986. On April 1, 1986, the defendant moved for a dismissal asserting that his double jeopardy, speedy trial, and due process rights had been violated by the initiation of federal charges in the United States District Court for the Middle District of Tennessee. The district court conducted an evidentiary hearing on the motion on April 8 and 10, 1986, at the conclusion of which it issued oral findings of fact and conclusions of law and dismissed the indictment.

In dismissing the indictment, the district court concluded that the 120-day speedy trial limitation mandated by R.C.M. 707 had commenced to accrue on June 29, 1985 when Col. Kreutzmann's initial order restrained the defendant's liberty and that the military authorities had intentionally acted in bad faith by deferring jurisdiction over the matter to the United States Attorney's office to circumvent the military court's consideration and disposition of the defendant's motion to dismiss based upon asserted speedy trial infringements. Although the district court acknowledged that the United States Attorney's prosecution of the proceedings in federal court had been timely and had comported with the provisions of the federal Speedy Trial Act in all respects, the court considered the criminal action initiated by the federal grand jury to have been tainted by the actions of the military authorities and offensive to public policy so as to warrant dismissal of the indictment. On appeal, the defendant adopted the legal reasoning and public policy justifications articulated by the district court and invoked the constitutional protections of due process, speedy trial, and double jeopardy to support the dismissal. The Government, on the other hand, argued before this court that dismissal of the indictment by the district court was unwarranted inasmuch as the prosecution initiated by the United States Attorney did not constitute an infringement of any of the defendant's rights, constitutional or otherwise, despite the prior proceedings pursued by the military authorities.

Resolution of the instant appeal necessitates an initial examination of the relationship between military and civilian prosecuting authorities. Case law has long recognized in a variety of contexts that the military by necessity constitutes a specialized environment separate from civilian society. See, e.g., United States v. Stanley, --- U.S. ----, ---- - ----, 107 S.Ct. 3054, 3059-65, 97 L.Ed.2d 550 (1987); United States v. Johnson, --- U.S. ----, 107 S.Ct. 2063, 2069, 95 L.Ed.2d 648 (1987); Goldman v. Weinberger, 475 U.S. 503, 106 S.Ct. 1310, 1312-13, 89 L.Ed.2d 478 (1986); Parker v. Levy, 417 U.S. 733, 743, 94 S.Ct. 2547, 2555-56, 41 L.Ed.2d 439 (1974); United States v. Mariea, 795 F.2d 1094, 1100 (1st Cir.1986); Satterfield v. United States, 788 F.2d 395, 398 (6th Cir.1986). This independence extends to the military justice system, which embodies a unique jurisprudence separate and apart from the law which governs in the federal judicial establishment, with different procedures, protections, and personnel, and which is designed to accomplish goals diverse from those served by the civilian criminal justice system. See, e.g., Solorio v. United States, --- U.S. ----, ----, 107 S.Ct. 2924, 2930, 97 L.Ed.2d 364 (1987); Chappell v. Wallace, 462 U.S. 296, 300-05, 103 S.Ct. 2362, 2365-68, 76 L.Ed.2d 586 (1983); Schlesinger v. Councilman, 420 U.S. 738, 746, 757, 95 S.Ct. 1300, 1307, 1313, 43 L.Ed.2d 591 (1975); Parker v. Levy, 417 U.S. 733, 744, 94 S.Ct. 2547, 2556, 41 L.Ed.2d 439 (1974); Gosa v. Mayden, 413 U.S. 665, 672-75, 93 S.Ct. 2926, 2932-34, 37 L.Ed.2d 873 (1973); Relford v. Commandant, U.S. Disciplinary Barracks, 401 U.S. 355, 365-69, 91 S.Ct. 649, 655-57, 28 L.Ed.2d 102 (1971); O'Callahan v. Parker, 395 U.S. 258, 262-65, 89 S.Ct. 1683, 1685-87, 23 L.Ed.2d 291 (1969); Reid v. Covert, 354 U.S. 1, 36, 77 S.Ct. 1222, 1240, 1 L.Ed.2d 1148 (1957); United States ex rel. Toth v. Quarles, 350 U.S. 11, 17-18, 76 S.Ct. 1, 5-6, 100 L.Ed. 8 (1955); Burns v. Wilson, 346 U.S. 137, 140, 73 S.Ct. 1045, 1047, 97 L.Ed. 1508 (1953); United States v. Mariea, 795 F.2d 1094, 1100-01 (1st Cir.1986); Baker v. Schlesinger, 523 F.2d 1031, 1035 (6th Cir.1975), cert. denied, 424 U.S. 972, 96 S.Ct. 1473, 47 L.Ed.2d 741 (1976); Seepe v. Department...