United States v. Duncan

OPINION OF THE COURT

Contrary to his pleas, the appellant was convicted by a general court-martial composed of members of conspiracy to obstruct justice, violation of a lawful general regulation, larceny (thirteen specifications), forgery, making a false claim (two specifications), conduct unbecoming an officer, obstruction of justice, and failure under 18 U.S.C. § 643 (1982) to account for public funds, in violation of Articles 81, 92, 121, 123, 132, 133, and 134 of the Uniform Code of Military Justice, 10 U.S.C. §§ 881, 892, 921, 923, 932, 933, and 934 (1982) [hereinafter UCMJ]. The appellant was sentenced to a dismissal, confinement for ten years, *1234forfeiture of $3,350.00 pay per month for ten years,1 and a fine of $50,000.00. The convening authority approved only so much of the sentence as includes a dismissal, confinement for seven years, forfeiture of $3,350.00 pay per month for seven years, and a fine of $50,000.00.

The appellant has raised numerous errors on appeal. Several need not be addressed because of our decision today, and several are without merit.2 Those with merit are discussed below.

I. SPEEDY TRIAL

The appellant contends that the military judge erred in failing to dismiss many of the charges and specifications for violation of the 120-day “speedy trial” requirement of Rule for Courts-Martial 707. Manual for Courts-Martial, United States, 1984, Rules for Courts-Martial 707(a) and 707(e) [hereinafter R.C.M.].3 We agree that dismissal of the original and first set of additional charges is required.

A. Facts

The appellant was the supervisor of an Army covert intelligence support group4 operating as a private security company under the cover name Business Security International (BSI) located in Annandale, Virginia. In mid-1983, the Army conduct*1235ed an audit of the BSI accounts. As a result of this audit, the Army initiated an administrative investigation into allegations of substantial financial irregularities by numerous individuals assigned to this highly classified, covert operation. The investigating officer found that the allegations were substantiated and recommended a criminal investigation by the Federal Bureau of Investigation (FBI).5 In December 1983, the General Counsel of the Army referred the matter to the Department of Justice (DOJ) for investigation. Mr. F, a trial attorney with the DOJ, was assigned to the investigation.

Following an extensive investigation, there was a meeting at the Office of the General Counsel of the Department of Defense (DOD) on 1 October 1984. Present were a number of civilian and military officials from the DOD and the Department of the Army. Mr. F testified at the court-martial that the DOJ informed DOD officials that it would prosecute the appellant for three specific criminal transactions and declined prosecution of all other suspected crimes “in favor of court-martial.”6 Authorities within the DOD decided to investigate further the remaining suspected acts of criminal misconduct with a view toward prosecution at a court-martial. In November 1984, a special prosecution team was appointed which included at that time Captain (CPT) M and CPT H, trial counsels, and Lieutenant Colonel (LTC) B, Assistant Staff Judge Advocate, Headquarters, Military District of Washington.

As the two independent prosecutions progressed, military prosecutors, confronted with an expiring statute of limitations on some of the suspected offenses, preferred charges.7 On 13 May 1985, the appellant was first notified of the preferral of charges.8 Later that summer, again confronted with statute of limitations concerns, the Army preferred additional charges. On 17 September 1985, the appellant was notified of the preferral of these charges.9 According to CPT M, the mili*1236tary prosecutors did not initiate a thorough investigation of the charges against the appellant until after the conclusion of the civilian prosecution in 1986.10 Court-martial proceedings were deferred pending indictment and prosecution in federal district court.

Civilian prosecutors did not obtain an indictment until 19 November 1985. Trial on the merits in the federal district court case commenced on 10 February 1986. On 12 February 1986, the appellant was convicted of three of the counts for which he had been indicted.11 The appellant was sentenced on 14 March 1986, to imprisonment for a period of one year plus a $50.00 assessment on each count with all sentences to run concurrently. On 7 April 1986, the Army pretrial investigation of the charges preferred against the appellant was convened pursuant to Article 32, UCMJ. On 12 May 1986, the appellant was notified of the preferral of a second set of additional charges.12 Charges were referred for trial by general court-martial by the Commander, Military District of Washington, on 10 July 1986. The appellant was “brought to trial” within the meaning of R.C.M. 707 on 28 October 1986.13 Accordingly, the elapsed time from notification of the charges to presentation of evidence was 533 days for the charges originally preferred, 406 days for the first set of additional charges, and 169 days for the second set of additional charges.

On 5 September 1986, the appellant litigated the speedy trial issue. The military judge denied the motion to dismiss. The judge specifically excluded the 275-day period from 14 May 1985 (the date government accountability began after the appellant was notified of the original charges) through 12 February 1986 (the date the appellant was convicted in federal district court). For the period 13 February 1986 through 5 September 1986, the military judge found that the government was accountable for 105 days of that 205-day period.14 We essentially agree with the *1237military judge’s findings for this time period with the exception of 14 March 1986 (the appellant was unavailable due to sentencing in federal district court) and 5 September 1986 (the date the speedy trial motion was litigated). We exclude those dates from the government’s accountability. We also attribute 19 June 1986 (Article 32 session), 25 June 1986 (a Sunday), and the period 27 August 1986 through 2 September 1986 (lack of diligence to obtain government witness) to the government to bring their total accountability for the period 13 February 1986 through 5 September 1986 to 114 days. Thus, it remains for us to decide whether any or all of the period from 14 May 1985 (the date on which government accountability began) through 12 February 1986 (the date on which the appellant was convicted in federal district court) should be added to the 114 days.

The basis for the military judge’s ruling regarding the critical period 14 May 1985 through 12 February 1986 was: “This delay was at the request of the Department of Justice because of the federal criminal trial involving [the appellant] and the Department of Justice caused these [court-martial] proceedings to be delayed.” The military judge explained his ruling:

I find that the case was delayed by the Army after the 13th of May until this year because the Department of Justice essentially told them to do so.

I also find that, under our system, the Department of Justice must have primacy in—in the prosecution of criminal cases. Their action to establish their primacy in the investigation and the prosecution were, I believe, a proper exercise of their authority. And this is especially so when the Attorney General is the primary law enforcement authority in the United States.

I find that in this period the government has established good cause for the delay and all that time is excludable.

The appellant did not renew his speedy trial motion before the time evidence was presented to the members. The government was never called to account for the period 6 September 1986 through 27 October 1986 and the military judge had no cause to rule on this period of delay. Although the government has not affirmatively established its entitlement, if any, to an exclusion under R.C.M. 707, see United States v. Facey, 26 M.J. 421 (C.M.A.1988), we hold that the appellant waived government accountability for this period of delay by failing to reassert the issue. R.C.M. 907(b)(2)(A); see United States v. Britton, 26 M.J. 24, 27 (C.M.A.1988). Thus, the total elapsed time for speedy trial accountability for pretrial delay includes 481 days for the original charges (14 May 1985 through 5 September 1986, plus 28 October 1986, the date the appellant was brought to trial),15 354 days for the first set of addi*1238tional charges (18 September 1985 through 5 September 1986, plus 28 October 1986), but only 117 days for the second set of additional charges (13 May 1986 through 5 September 1986, plus 28 October 1986). Consequently, Specifications 1, 5, and 6 of Additional Charge YII (the second and last additional charges) are not affected by our disposition of this speedy trial issue (see Parts II and III, infra).

B. Government Delay

The appellant’s principal challenge to the military judge’s ruling concerns the exclusion of the period of time from 14 May 1985 through 12 February 1986.

1. Stay of Court-Martial Proceedings

During the hearing on the speedy trial motion, it became apparent that the decision to prosecute the appellant in multiple forums had created a conflict as to which would be first in time. The prosecutors, both military and civilian, were apparently in agreement that the prosecution in federal district court would take priority. When asked whether “[t]he United States Army ... was aware of speedy trial problems but elected to take the chance that those problems might arise later, ...” CPT M responded, “Absolutely true.” However, the identity of the person who made the decision and the basis for this decision are obscured by inconsistent and contradictory evidence which suggest alternative bases. Our opinion addresses the apparent basis for the decisions made by the government as well as the military judge’s rationale for his denial of the speedy trial motion.

The government’s decision to delay prosecution was predicated upon an assertion that the convening authority granted a request by civilian prosecutors to stay court-martial proceedings. The military judge ruled that the DOJ had implicit power to order a stay of court-martial proceedings. CPT M and Mr. F first discussed a request for stay of court-martial proceedings in early 1985 when they met to coordinate their independent prosecutions.

According to Mr. F, the civilian prosecution team knew “very little” about courts-martial procedure and really weren’t concerned about the court-martial proceedings: “The [military] prosecutors advised me there was no [speedy trial] problem. That’s all I needed.” Mr. F testified that military prosecutors “indicated that [speedy trial requirements] would not be a problem if we asked them to stay all proceedings against [the appellant] until a judgment had been entered in our case." [Emphasis added]. He testified further, that he and Mr. G, an Assistant United States Attorney also assigned to the investigation, were not aware that there was a speedy trial issue in the court-martial proceeding until after the conclusion of the appellant’s prosecution in federal district court.

In accordance with the understanding between CPT M and Mr. F, and despite LTC B’s apparent legal conclusion that military authorities lacked authority to proceed, LTC B nevertheless solicited a written request for a stay of court-martial proceedings from the civilian prosecutors. LTC B specifically requested that the written request reference the pretrial investigation required by Article 32 of the Uniform Code of Military Justice. In a letter to LTC B dated 10 September 1985, Mr. F wrote, “I would request that you stay the Article 32 proceedings against” the appellant “until a judgemnet [sic] is entered in our criminal case.” In a subsequent letter dated 26 September 1985, Mr. F stated:

This is to confirm and reiterate that the United States Department of Justice is requesting the Military District of Washington not to provide any discovery [to the appellant or his counsel] ... until a judgment has been issued in the federal

criminal prosecution____

According to CPT M, “the court-martial convening authority acted on the request for staying our proceeding.”

*1239In theory, we agree that “the conduct of litigation in which the United States ... is a party ... is reserved to officers of the Department of Justice____” 28 U.S.C. § 516 (1982). However, the statutory authority of the DOJ—and the Attorney General and each United States Attorney—is subject to the proviso “[ejxcept as otherwise authorized [provided] by law.” 28 U.S.C. §§ 516, 519, 547 (1982).

One such “law” is the Uniform Code of Military Justice. Congress has the power to grant executive agencies other than the DOD authority over military prosecutions, U.S. Const, art. I, § 8, cl. 18, but it has not done so. Rather, Congress has reserved to the discretion of military authorities the power to prefer charges, Article 30, UCMJ, to select the charges to be tried, Article 34, UCMJ, to convene courts-martial, Articles 22, 23, and 24, UCMJ, and to detail counsel to represent the government, Articles 6, 27, and 38(a), UCMJ. The Attorney General and his staffs of prosecutors have no authority to represent the United States in court-martial proceedings. See Articles 27(a)(1) & (b) and 38(a), UCMJ.

An agency may not “bootstrap itself into an area in which it has no jurisdiction.” FMC v. Seatrain Lines, Inc., 411 U.S. 726, 745, 93 S.Ct. 1773, 1785, 36 L.Ed.2d 620 (1973). The Attorney General’s implicit authority under 28 U.S.C. § 519 (1982) cannot supersede the specific provisions of the Uniform Code of Military Justice. See S & E Contractors, Inc. v. United States, 406 U.S. 1, 13, 92 S.Ct. 1411, 1418, 31 L.Ed.2d 658 (1972) (“[W]here the responsibility for rendering a decision is vested in a coordinate branch of Government, the duty of the Department of Justice is to implement that decision and not to repudiate it”). We hold that the Attorney General and his staffs of civilian prosecutors have no legal authority to order a stay of court-martial proceedings or to control the prosecutorial function of military authorities.

2. Lack of Authority to Proceed with a Court-Martial

The second basis for the government’s delay is predicated on an apparent belief that military authorities either lacked jurisdiction to proceed or were prevented from proceeding by the DOJ. In an affidavit submitted to the military judge on the speedy trial motion, Mr. F further states that, at the October 1984 meeting:

[W]e reiterated our prior discussions with [the Department of Defense] and Army military and civilian leaders that we were still investigating [the appellant] and that the Army was not free to proceed with courts-martial proceedings against [the appellant], until and unless the Department of Justice concurred in such proceedings, for the Army proceeding could adversely affect our continuing investigation. [Emphasis in original].

None of the other individuals who attended the meeting were called to verify or to refute his account.16

The team of military prosecutors apparently acceded to this demand to defer to the civilian prosecution. A letter dated 3 December 1984 from LTC B to the civilian prosecutors states:

While I realize that you have retained jurisdiction over certain individuals and issues, with your concurrence, I intend to prepare recommendations concerning appropriate action(s) for all individuals under the jurisdiction of Commander, [Military District of Washington]. Prior to disclosing my recommendations concerning those individuals or issues over whom [sic] you have retained jurisdiction, I intend to fully coordinate the matter with you. This approach will best serve the interests of the Department of Justice and the Army and will facilitate the expeditious disposition of *1240all matters under investigation. [Emphasis added].

In another letter dated 11 June 1985, from LTC B to Mr. G, LTC B states:

As you have retained jurisdiction over [the appellant] who is also under courts-martial charges, no pretrial investigation will be conducted pending the grand jury investigation and your subsequent action.

During the hearing, CPT M testified that the DOJ had “assumed” and “retained” jurisdiction over the appellant’s “case” and had thereby foreclosed court-martial proceedings against the appellant. As CPT M characterized the situation: “Gee, even if the Army wanted to conduct an administrative investigation it would require the concurrence of the Justice Department.” He was of the opinion that a Memorandum of Understanding between the DOD and the DOJ precluded military authorities from proceeding against the appellant in a court-martial until the DOJ granted permission to do so.17

C. Jurisdiction

The premise for the government’s assertion of lack of jurisdiction lies in the following observation:

Military jurisdiction is concurrent with civilian federal jurisdiction whenever a person subject to the UCMJ commits an offense that violates both the UCMJ and Title 18 of the U.S. Code. This fact creates an issue as to which authority, military or civilian, will have the right to exercise primary jurisdiction.

Answer to Assignment of Errors at 12-13. The government argues that the Memorandum of Understanding between the DOJ and DOD authorizes federal civilian prosecutors “to assert primary jurisdiction, and prohibit [military authorities] from investigating appellant’s case until the conclusion of appellant’s civilian trial.” We disagree.

1. Jurisdiction and the Military and Federal Criminal Justice Systems

Congress has created two separate criminal justice systems, one civilian and one military. Federal district courts have original jurisdiction over “offenses against the laws of the United States,” see 18 U.S.C. § 3231 (1982), but have no jurisdiction over offenses prescribed by the Uniform Code of Military Justice. See 10 U.S.C. §§ 878, 881-934 (1982) (violations of the Uniform Code of Military Justice are “punished as a court-martial may direct”). Court-martial jurisdiction is limited to those offenses prescribed by the Uniform Code of Military Justice. Articles 18, 19, and 20, UCMJ. These courts operate independently of one another. As stated above, the prosecution function of the military system is independent from that of the civilian system.

While the subject-matter jurisdiction of federal district courts and courts-martial is not “concurrent” in the technical sense, crimes committed by servicemembers are often susceptible to prosecution “either” in federal district courts and at courts-martial because the substantive provisions of the Uniform Code of Military Justice closely parallel the codified “offenses against the laws of the United States.” Moreover, courts-martial jurisdiction extends to every criminal act by servicemembers otherwise susceptible of prosecution in federal district court by virtue of the “crimes not capital” clause of Article 134, UCMJ. Consequently, a conflict of priority may arise between these criminal justice systems.

Congress has declined to adopt proposals that it enact legislation giving civilian courts priority of jurisdiction over courts-martial. See generally Constitutional Rights of Military Personnel: Summary—Report of Hearings by the Subcommittee on Constitutional Rights of the Committee on the Judiciary, United States Senate, 88th Cong., 1st Sess. 22-26 (1963) *1241[hereinafter Constitutional Rights of Military Personnel].18 Instead, the question of priority is resolved by case law. “Just as the Supreme Court urged Federal civilian courts to ‘give careful consideration to the appropriate demands of comity’ when related proceedings are pending before courts-martial, the military justice system should consider the ‘demands of comity’ in connection with related proceedings in a Federal District Court.” Woodrick v. Divich, 24 M.J. 147, 153 (C.M.A.1987) (citations omitted). Thus, the analysis of Ponzi v. Fessenden, 258 U.S. 254, 42 S.Ct. 309, 66 L.Ed. 607 (1922), controls:

One accused of crime, of course, can not be in two places at the same time. He is entitled to be present at every stage of the trial of himself in each jurisdiction with full opportunity for defense.

[T]he court which first takes the subject-matter of the litigation into its control, whether this be person or property, must be permitted to exhaust its remedy, to attain which it assumed control, before the other court shall attempt to take for its purpose.

Ponzi v. Fessenden, 258 U.S. at 260, 42 S.Ct. at 310 (citations omitted). Although the jurisdictional conflict between a court-martial and a federal district court is not one of dual sovereigns, the rule of judicial comity dictates the same result. See, e.g., United States v. Cart, 36 C.M.R. 858, 865-866 (A.F.B.R.1966), pet. denied, 36 C.M.R. 541 (C.M.A.1966). As a consequence of this “first-in-time” rule of comity, military and civilian prosecutors therefore compete for prosecutorial priority because “[t]he Government, and not the courts, is responsible for initiating a criminal prosecution.” Garrett v. United States, 471 U.S. 773, 790 n. 2, 105 S.Ct. 2407, 2417 n. 2, 85 L.Ed.2d 764 (1985). Cf. United States v. Fernandez, 24 M.J. 77, 78 (C.M.A.1987) (In referring a case to trial, a convening authority is functioning in a prosecutorial role). See also Ball v. United States, 470 U.S. 856, 859, 105 S.Ct. 1668, 1670, 84 L.Ed.2d 740 (1985). Legislators recognized this fact when they declined to enact legislation assigning priority of jurisdiction:

Whether a serviceman should be tried by court-martial or by civil court for alleged misconduct over which both have jurisdiction, the subcommittee considers can best be left to informal arrangements between appropriate commanding officers and civil authorities.

Constitutional Rights of Military Personnel, supra p. 15, at 26. However, the fact that “informal arrangements” may informally determine whether a soldier is prosecuted in federal court or at a courts-martial does not mean that one agency may divest itself of or deprive another of “jurisdiction.”

2. The Memorandum of Understanding

In our federal system of government, it is not uncommon for Congress to charge executive agencies19 with overlapping duties and coterminous responsibilities. In order to avoid unnecessary expense and confusion, agencies frequently enter into memoranda of understanding by which they agree to share information,20 coordinate the discharge of their duties,21 and *1242assign primary responsibility for coterminous functions.22

The DOD and the DOJ have entered into a Memorandum of Understanding that assigns prosecutorial priority between their prosecutorial staffs and provides for coordination of the government’s prosecutorial efforts. The government interprets the terms of this agreement as either divesting the DOD of courts-martial jurisdiction or giving the DOJ the power to stay courts-martial proceedings.23 We hold that the agreement cannot extinguish court-martial jurisdiction or grant the DOJ the power to intervene in or order a stay of court-martial proceedings.

An agency’s power to promulgate regulations is limited to the authority delegated to it by Congress. Bowen v. Georgetown University Hospital, 488 U.S. 204, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988). In this case, the government points to the Memorandum of Understanding and asserts that the Army lacked the power or authority to bring the appellant to trial by court-martial. An interdepartmental agreement can neither modify the statutory contours of a court’s jurisdiction nor divest an agency of its statutory powers. See Earth Island Institute v. Mosbacher, 929 F.2d 1449 (9th Cir.1991) (agencies do not have the discretion to issue regulations which conflict with statutory language); Cooke v. Orser, 12 M.J. 335, 345 (C.M.A. 1982) (commanders may not functionally relieve themselves of their prosecutorial responsibilities). An interdepartmental agreement cannot confer upon the DOJ a power or authority expressly reserved to the DOD. See FMC v. Seatrain Lines, Inc., 411 U.S. at 745, 93 S.Ct. at 1784. Under the Uniform Code of Military Justice, the authority of the DOJ does not extend beyond the right to request that military authorities surrender a soldier for trial in a civilian court. Article 14, UCMJ.

To the extent that the provisions of the Memorandum of Understanding are interpreted to attempt to accomplish either of these acts (extinguish court-martial jurisdiction or grant the DOJ the power to intervene in or order a stay of court-martial proceedings), they conflict with the Uniform Code of Military Justice. We cannot permit the DOD and the DOJ to accomplish an act that is expressly forbidden by statute. Article 36(a), UCMJ; see Marks v. Central Intelligence Agency, 590 F.2d 997, 1003 (D.C.Cir.1978) (a President’s executive orders may not supersede or contravene a statute).

D. “Good Cause”

The government claims the facts of this case constitute good cause for delay as outlined in R.C.M. 707(c)(9).24 We now examine the underlying circumstances assert*1243ed by the government to determine de novo whether there was “good cause” for the convening authority’s decision to delay.

We reject out of hand several bases for exclusion asserted pursuant to the “good cause” exception at trial. These include arguments premised upon (1) the complex nature of the case, (2) the fact that the case was highly classified, and (3) the fact that the appellant initiated a collateral civil suit in federal district court.25 While any one or a combination of these factors might have warranted the exclusion of a reasonable period of delay for good cause, a causal connection or nexus between the delay and the event offered in justification for exclusion must be established before the government is entitled to an exclusion for good cause. See United States v. Longhofer, 29 M.J. 22, 27 (C.M.A.1989) (“good cause” implies a causal connection or “nexus” between an unusual event and government delay). The record clearly establishes that the 275-day period of delay in issue did not result from any of these circumstances.

Additional factors cited as reasons establishing good cause delay are as discussed below. First, the DOJ feared disclosure, both authorized and unauthorized, of classified information. Second, the DOJ wanted to maintain “full control” over discovery procedures and thereby limit the scope of discovery available to the appellant to that provided by federal rules. Third, the DOJ was concerned that the appellant might somehow exploit court-martial proceedings to chill the cooperation of government witnesses. We find scant merit—much less good cause—in any of these circumstances when we weigh the interests of the accused in a speedy trial “against the ends of justice that may be served by a delay in trial.” United States v. Durr, 21 M.J. 576, 578 (A.C.M.R.1985); accord United States v. Lilly, 22 M.J. 620, 625 (N.M.C.M.R.1986); see also United States v. Givens, 28 M.J. 888, 891 (A.F.C.M.R.1989), set aside by 30 M.J. 294 (C.M.A.1990).

In order to establish good cause, the event or circumstance offered must justify the delay. ■ We immediately reject the second and third factors. These factors are tactical concerns amounting to no more than a desire to forestall the appellant’s right of discovery and his right of cross-examination at the pretrial investigation and at his court-martial. In effect, the justification for noncompliance with the speedy trial mandate is founded on the civilian prosecutors’ perceptions that the appellant might have derived some tactical advantage in federal court if afforded discovery pursuant to R.C.M. 701 and R.C.M. 702, and the right of cross-examination pursuant to the sixth amendment and R.C.M. 405(f). We hold that a tactical desire to deny an accused the rights appurtenant to court-martial does not suffice to establish good cause for denial of the right to speedy trial.

With respect to the first factor, the DOJ refers both to a generalized fear that the appellant might make unauthorized disclosures of classified information and to a specific fear that the appellant might utilize classified information obtained during court-martial proceedings to “greymail” federal prosecutors. “ ‘Greymail’ occurs when a defendant seeks to disclose classified information as part of his or her defense, requiring the government either to permit disclosure or to dismiss the prosecution.” United States v. Smith, 899 F.2d 564, 565 n. 1 (6th Cir.1990), cert. denied, — U.S. ---, 111 S.Ct. 135, 112 L.Ed.2d 103 (1990). There is also a potential for “greymail” when a defendant seeks discovery of classified information, thus compelling the government to produce or to drop the prosecution. See United States v. Sarkissian, 841 F.2d 959, 965 (9th Cir.1988).

*1244Mr. F testified, “We could control the distribution of classified information in federal court because we invoked CIPA [the Classified Information Procedures Act] and anything done in violation of CIPA would have resulted in issuance of contempt action.” This protection would not have been lost had the appellant been first tried at court-martial.

Well aware that potential disclosure of such matters in an open forum might frustrate the ends of criminal justice by deterring prosecution, Congress passed the Classified Information Procedures Act, 18 U.S.C.App. §§ 1-16 (1982). See United States v. Sarkissian, 841 F.2d at 965 (citing S.Rep. No. 823, 96th Cong., 2d Sess. 4 (1980), reprinted in U.S.C.C.N.A. 4294, 4297). Accord United States v. Smith, 899 F.2d at 565 n. 1; United States v. Anderson, 872 F.2d 1508, 1514 (11th Cir. 1989), cert. denied, 493 U.S. 1004, 110 S.Ct. 566, 107 L.Ed.2d 560 (1989); United States v. Rewald, 889 F.2d 836 (9th Cir.1989) opinion amended by 902 F.2d 18 (9th Cir. 1990) , cert. denied, — U.S. ---, 111 S.Ct. 64, 112 L.Ed.2d 39 (1990); United States v. Smith, 780 F.2d 1102, 1105 (4th Cir.1985). CIPA permits the government “to have the trial court examine classified information in camera and ex parte” prior to disclosure to the defendant and prior to admission into evidence for a determination “whether it is necessary for the defense, or if a proffered substitution would suffice to protect the defendant’s constitutional rights and the secrecy of the information.” United States v. Smith, 899 F.2d at 565 n. 1. CIPA also requires the defendant to disclose all classified information in his possession which he intends to offer at trial; the government may also obtain a preliminary ruling as to the admissibility of these matters as well. See generally United States v. Collins, 720 F.2d 1195 (11th Cir. 1983). Thus, CIPA protections would have still been available in the federal prosecution had the court-martial been tried first.

Military Rule of Evidence 505 mirrors CIPA. While Mr. F’s ignorance of military proceedings is excusable, his ignorance cannot be imputed to the convening authority who ordered the delay in trial. The convening authority knew, should have known, or should have been advised by his staff judge advocate, that the military did in fact have a counterpart to CIPA. This aspect of Mr. F’s fears does not afford a basis for finding good cause for delay. Further, both the military prosecutors and Mr. F should have known that any unauthorized disclosure of classified information is a substantive offense under the federal code. See 18 U.S.C. § 793(d) (1982).26 This offense applies equally to unauthorized disclosures made to the press. United States v. Morison, 604 F.Supp. 655 (D.Md.1985), appeal dismissed, 774 F.2d 1156 (4th Cir. 1985). Thus, the available sanctions were irrelevant to the sequence of the appellant’s prosecutions.

Moreover, the record establishes that the appellant was privy to an extensive amount of classified information before both his indictment and the preferral of charges. Delaying court-martial proceedings could neither obviate nor alleviate the potential for unauthorized disclosure even if the appellant was so inclined. With respect to any additional classified information which may have been produced through discovery, the potential for unauthorized disclosure would have persisted regardless which proceeding was tried first. The sequence of the prosecutions could not obviate the danger that the appellant might disclose information discovered during court-martial proceedings.

E. “Other Proceedings”

We agree with the military judge that a federal prosecution does not constitute “other proceedings in the case” for purposes of R.C.M. 707(c)(1). The language of *1245R.C.M. 707(c)(1) is quite distinct from that of the Speedy Trial Act of 1974, 18 U.S.C. § 3161(h)(1)(D) (1982),27 and must be interpreted accordingly.

However, we do find that the government is entitled to an exclusion of the period during which the appellant was being prosecuted in federal district court. As indicated previously, the judicial doctrine of comity requires that federal district courts and courts-martial stay their proceedings when the jurisdiction of the other has attached first in time. In this case, jurisdiction over the appellant attached at the time the indictment was filed in federal district court and continued until the time a jury returned a verdict. Compare Fed.R.Crim.P. 9 with Fed.R.Crim.P. 4. Accordingly, we hold that the appellant was unavailable for court-martial within the meaning of R.C.M. 707(c)(6) from 19 November 1985, the date the indictment was filed with the district court, through 12 February 1986, the date on which the appellant was convicted. Although military authorities could have secured priority of court-martial jurisdiction by sooner referring the charges, this 86-day period of delay is reasonable and will be excluded. Cf. United States v. Longhofer, 29 M.J. at 27 (reasonable delay is excludable without regard to causation). We also deduct one day of accountability, 14 March 1986, the date the appellant’s presence for sentencing was required in federal district court.

F. Conclusion

Deducting 87 days from the government’s accountability for the appellant’s unavailability and the 91 days excluded or attributed to the defense, and finding no facts or circumstances which would otherwise warrant exclusion, the government is accountable for 303 days of pretrial delay for the originally preferred charges and 176 days of pretrial delay for the first additional set of charges. The appellant’s right to speedy trial was violated and he is therefore entitled to the remedy provided by R.C.M. 707(e): that is, dismissal of the original charges and the first set of additional charges.

We agree with Mr. F’s evaluation that the federal prosecution and the court-martial had to be tried serially. However, Article 30(b), UCMJ, R.C.M. 401(b), R.C.M. 707, and the statute of limitations then in effect, Article 46, UCMJ, mandated that the court-martial charges be given tactical precedence over those considerations underlying the decision to first prosecute the appellant in federal district court. We find no small irony in Mr. F’s observation that “[t]he case at bar itself demonstrates the need for a coordinated prosecution effort in the interest of fairness and efficiency.” Appellate Exhibit XII at 4. Our dismissal of the original and first set of additional charges leaves for resolution the disposition of several specifications under Additional Charge VII.

II. SUFFICIENCY OF EVIDENCE: SPECIFICATIONS 5 AND 6 OF ADDITIONAL CHARGE VII

Although the issue was not clearly raised by the appellant, we find that the evidence of record is factually insufficient to support the appellant’s convictions of Specifications 5 and 6 of Additional Charge VII. These specifications charged:

Specification 5: (U) In that [the appellant] ... did ... on or about 29 September 1983, steal $1,151.06, the property of the United States, by including that amount on a voucher and receiving credit against his accountability for government funds for that official expense when said expense was paid by and properly previously credited to the account of [another servicemember], at that time a member of [the appellant’s] unit. Specification 6: (U) In that [the appellant] ... did ... on or about 29 September 1983, steal an unused airplane ticket of a value of $241.00, the property of the United States, by including $265.00 on a voucher and receiving credit against his *1246