2010 (September Term)
United States v. Schuber, 70 M.J. 180 (Article 10, UCMJ, provides that when any person subject to the UCMJ is placed in arrest or confinement prior to trial, immediate steps shall be taken to inform him of the specific wrong of which he is accused and to try him or to dismiss the charges and release him; while the requirements of Article 10 are more rigorous than the Sixth Amendment to the United States Constitution, it becomes operative only after arrest or confinement).
(the two forms of restraint, arrest and restriction, are not per se equivalent for the purpose of assessing the applicability of Article 10; as noted in the Discussion to RCM 304(a), restriction in lieu of arrest is a less severe restraint on liberty than is arrest; arrest includes suspension from performing full military duties and the limits of arrest are normally narrower than those of restriction in lieu of arrest; the actual nature of the restraint imposed, and not the characterization of it by the officer imposing it, will determine whether it is technically an arrest or restriction in lieu of arrest; restriction and arrest are not conterminous; rather, as outlined in the RCMs, there are gradations of restriction; whether a particular restriction amounts to arrest for the purposes of Article 10, UCMJ, will depend on a contextual analysis, including consideration of such factors as the geographic limits of constraint, the extent of sign-in requirements, whether restriction is performed with or without escort, and whether regular military duties are performed).
(in this case, appellant was subject to restriction not tantamount to arrest during the period following his 71 days in pretrial confinement, where he was restricted to base rather than to quarters, where although he was required to provide weekly urine samples, he was permitted to avail himself of all usual base activities, where he was given a 3-day pass to grieve with his family upon the death of his grandfather, where he was not placed under guard or escort during his base restriction or travel, and where he was not suspended from performing normal military duties).
(the right to a speedy trial is expressly guaranteed by RCM 707 and the Sixth Amendment; although Article 10, UCMJ, is generally directed toward the advent of a speedy trial, it is specifically addressed to a particular harm, namely causing an accused to languish in confinement or arrest without knowing the charges against him and without bail).
(because appellant’s 67-day restriction prior to his trial did not amount to arrest, the purpose of Article 10, UCMJ, was vindicated, and the particular harm that Article 10, UCMJ, was intended to address was removed - appellant was no longer arrested or confined without knowing the charges of which he was accused and without opportunity for bail).
(under Article 10, UCMJ, when any person subject to the UCMJ is placed in arrest or confinement prior to trial, immediate steps shall be taken to inform him of the specific wrong of which he is accused and to try him or to dismiss the charges and release him; the term “immediate steps” has been interpreted to mean not constant motion, but reasonable diligence in bringing the charges to trial; thus, the government must demonstrate reasonable diligence in proceeding toward trial during appellant’s pretrial confinement; however, brief inactivity is not fatal to an otherwise active, diligent prosecution; the test is reasonable diligence, not textbook prosecution).
(although Article 10, UCMJ, creates a more stringent speedy trial standard than a Sixth Amendment analysis, alleged Article 10, UCMJ, violations are analyzed using the same Barker v. Wingo [407 US 514 (1972)] four-factor structure: (1) the length of the delay, (2) the reasons for the delay, (3) whether appellant made a demand for speedy trial, and (4) prejudice to appellant; the first factor is to some extent a triggering mechanism, and unless there is a period of delay that appears, on its face, to be unreasonable under the circumstances, there is no necessity for inquiry into the other factors that go into the balance).
(whether the amount of time is facially unreasonable in an Article 10, UCMJ, context depends on the seriousness of the offense, the complexity of the case, and the availability of proof, and it also depends on other factors specific to the purposes of Article 10, UCMJ, which is to prevent an accused from languishing in prison without notice of the charges and without an opportunity for bail; these additional circumstances include whether appellant was informed of the accusations against him, whether the government complied with procedures relating to pretrial confinement, and whether the government was responsive to requests for reconsideration of pretrial confinement).
(under the circumstances of this case, appellant’s pretrial confinement for 71 days after he was charged with wrongful drug use on the basis of a random sample urinalysis was not facially unreasonable under Article 10, UCMJ, rendering a review of the remaining Barker v. Wingo [407 US 514 (1972)] factors unnecessary; although the prosecution of this case was less than commendable, where the government did not prefer the charges, initiate an Article 32, UCMJ, investigation, forward the charges, or respond to appellant’s first three discovery requests, which included demands for a speedy trial, in a timely manner, the test is reasonable diligence, not textbook prosecution; here, appellant was placed in pretrial confinement based on a straightforward accusation of drug use, supported by four positive samples, but evidence consisting of the final two positive samples was not reported until 15 days into pretrial confinement; in addition, this became a contested case requiring additional discovery and the services of an expert witness, there was ongoing discovery throughout the 71 days, and appellant was informed of the accusations against him as early as his pretrial confinement hearing, the second day of confinement; moreover, absent any complaint by appellant, and under the presumption of regularity, it may be presumed that the government complied with pretrial confinement procedures, including a 24-hour report to the commander, a 48-hour probable cause determination, the commander’s 72-hour memorandum, and a 7-day review; furthermore, the government responded within 2 days of appellant’s initial request for reconsideration of pretrial confinement and within one day of appellant’s expedited request for reconsideration of pretrial confinement).
2009 (September Term)
United
States v. Thompson, 68 M.J. 308 (when a
servicemember is placed in pretrial
confinement, Article 10, UCMJ, provides that immediate steps shall be
taken to
inform the accused of the charges and to either bring the accused to
trial or
dismiss the charges; Article 10 creates a more exacting speedy trial
demand
than does the Sixth Amendment).
(the procedural framework for
analyzing
Article 10 issues examines the length of the delay, the reasons for the
delay,
whether the accused made a demand for a speedy trial, and prejudice to
the
accused).
(because Article 10 imposes a
more stringent
speedy trial standard than the Sixth Amendment set forth by the Supreme
Court
in Barker v. Wingo, 407 US 514 (1972), Sixth Amendment speedy
trial
standards cannot dictate whether there has been an Article 10
violation).
(Article 10 does not require
constant motion,
but reasonable diligence in bringing the charges to trial; short
periods of
inactivity are not fatal to an otherwise active prosecution; in
conducting its
analysis, an appellate court should remain mindful that it is looking
at the
proceeding as a whole and not mere speed).
(the length of delay
constitutes a triggering
mechanism under Article 10).
(the 145-day period that
appellant spent in
pretrial confinement was sufficient to trigger an Article 10 inquiry).
(a pretrial delay of 37 days
caused by
confusion as to whether civilian or military authorities would
prosecute
off-post offenses and staffing issues in the trial counsel’s office did
not
violate Article 10 in view of (1) the limited period of time at issue,
(2) a
record that did not establish government indifference or substantial
inactivity
over the full course of the pretrial proceeding, (3) appellant’s delay
in
making a speedy trial request until 141 days after she was placed in
pretrial
confinement, and (4) appellant’s failure to demonstrate prejudice in
terms of
oppressive confinement, as reflected in the absence of pretrial
complaints
about confinement conditions and appellant’s subsequent entry into a
pretrial
agreement waiving any Article 13 claim for illegal pretrial confinement
conditions).
United
States v. Tippit, 65 M.J. 69 (the statutory
speedy trial standard, Article 10, UCMJ, provides that when any person
subject to the UCMJ is placed in arrest or confinement prior to trial,
immediate steps shall be taken to inform him of the specific wrong of
which he is accused and to try him or to dismiss the charges and
release him; Article 10 provides a more exacting speedy trial standard
than the Sixth Amendment; the standard under Article 10 for assessing
the government’s actions is not constant motion, but reasonable
diligence in bringing the charges to trial; although Article 10
establishes a more stringent standard than the Sixth Amendment, the
four-part test for assessing whether a delay amounts to a Sixth
Amendment constitutional violation is relied on to evaluate Article 10
claims, requiring a balancing of the length of the delay, reasons for
the delay, whether appellant demanded a speedy trial, and any prejudice
to appellant from the delay).
(Article 10 provides a narrow
exception to the normal rule that a speedy trial motion is waived by an
unconditional guilty plea; a servicemember who enters an unconditional
guilty plea may appeal a speedy trial claim under Article 10 only if
the accused has invoked Article 10 at trial by filing and litigating an
Article 10 motion at trial).
(in this case, where
appellant did not make a motion under Article 10 at trial and did not
litigate the speedy trial motion he did make under Article 10, any
issue with respect to Article 10 was waived by his unconditional guilty
plea).
(Article 10 requires the
government to act with reasonable diligence to bring charges to trial
when an accused is under arrest or confinement, or under certain forms
of restriction; the protections of Article 10 are broader than RCM 707;
the test under Article 10 is whether the government has acted with
reasonable diligence; four factors applicable to the litigation of
speedy trial claims under the Sixth Amendment are taken in account in
assessing whether the government has acted with reasonable diligence:
(1) length of the delay; (2) the reasons for the delay; (3)
whether appellant made a demand for a speedy trial; and (4) prejudice
to appellant).
United States v. Cossio, 64 M.J. 254 (Article 10, UCMJ,
ensures a servicemember’s right to a speedy trial by providing that
upon arrest or confinement prior to trial, immediate steps shall be
taken to inform him of the specific wrong of which he is accused and to
try him or to dismiss the charges and release him).
(in reviewing claims of a
denial of a speedy trial under Article 10, UCMJ, an appellate court
does not demand constant motion, but reasonable diligence in bringing
the charges to trial; it inquires whether the government moved toward
trial with reasonable diligence; brief inactivity is not fatal to an
otherwise active, diligent prosecution).
(although Article 10, UCMJ, creates a more stringent speedy trial
standard than the Sixth Amendment, the factors from Barker v. Wingo,
407 U.S. 514 (1972), are an apt structure for examining the facts and
circumstances surrounding an alleged Article 10 violation; those
factors are: (1) the length of the delay; (2) the
reasons for the delay; (3) whether the appellant made a demand for a
speedy trial; and (4) prejudice to the appellant).
(the first factor under the Barker
analysis is the length of the delay which is to some extent a
triggering mechanism, and unless there is a period of delay that
appears, on its face, to be unreasonable under the circumstances, there
is no necessity for inquiry into the other factors that go into the
balance; under the circumstances of this case, where the accused had
made a timely demand for a speedy trial and had been in continuous
pretrial confinement for 117 days when he moved for relief, the length
of delay was sufficient to trigger the full Barker inquiry).
(the following test for
prejudice has been established in the speedy trial context:
prejudice, of course, should be assessed in the light of the
interests of the accuseds which the speedy trial right was designed to
protect; three such interests have been identified: (1)
to prevent oppressive pretrial incarceration; (2) to minimize anxiety
and concern of the accused; and (3) to limit the possibility that the
defense will be impaired; of these, the most serious is the last,
because the inability of an accused adequately to prepare his case
skews the fairness of the entire system).
(although the accused made a
demand for a speedy trial 23 days after he was apprehended, he was not
denied his right to a speedy trial under Article 10, UCMJ, by the delay
of 120 days spent in pretrial confinement prior to trial where the
Government exercised reasonable diligence in bringing the charges to
trial; even though the technical processing of the charges was not
exemplary, the government has the right (if not the obligation) to
thoroughly investigate a case before proceeding to trial; here, the
record does not demonstrate that the forensic laboratory improperly
prioritized or otherwise unreasonably delayed the forensic examination
of the evidence, and there was no particularized prejudice; the
government actually leaned forward by getting a trial date before it
had the completed the forensic analysis or the report of investigation;
it was not unreasonable for the Government to marshal and weigh all
evidence, including forensic evidence, before proceeding to trial).
2005
United
States v. Mizgala, 61 M.J. 122 (Article 10, UCMJ, assures the right
of a
speedy trial to military members by providing that when any person
subject to
the UCMJ is placed in arrest or confinement prior to trial, immediate
steps
shall be taken to inform him of the specific wrong of which he is
accused and
to try him or to dismiss the charges and release him).
where an accused is incarcerated pending disposition of charges under
the UCMJ,
Congress in Article 10 has placed the onus on the Government to take
immediate
steps to move that case to trial).
(this Court has consistently noted that Article 10 creates a more
exacting
speedy trial demand than does the Sixth Amendment; not only is the
demand for a
speedy trial under the UCMJ more exacting, by virtue of Article 98,
UCMJ,
unreasonable delay in disposing of criminal charges in the military is
unlawful; while the full scope of this more exacting Article 10 right
has not
been precisely defined by this Court, it cannot be more exacting and at
the
same time be consistent with Sixth Amendment protections).
(the language of Article 10 is clearly different from RCM 707, and
Article 10
is not restricted by RCM 707(e) which provides that a plea of guilty
which
results in a finding of guilty waives any speedy trial issue as to that
offense; the protections afforded confined or arrested servicemembers
under
Article 10 are distinct and greater given the nature of other speedy
trial
protections; and RCM 707(e) does not act as a limitation on the rights
afforded
under Article 10).
(while the Speedy Trial Act imposes the burden of proof upon an accused
to
support a motion to dismiss, under Article 10, the Government has the
burden to
show that the prosecution moved forward with reasonable diligence in
response
to a motion to dismiss; this distinction is additional proof of the
importance
of Article 10 to the incarcerated servicemember).
(this Court finds nothing in the comparisons to the Sixth Amendment,
RCM 707 or
the Speedy Trial Act that would compel its application of their speedy
trial
waiver rules to Article 10).
(in view of the legislative importance given to a speedy trial under
the UCMJ
and the unique nature of the protections of Article 10, this Court
believes
that where an accused unsuccessfully raises an Article 10 issue at
trial and
thereafter pleads guilty, waiver does not apply; such a rule for
Article 10
rights properly reflects the importance of a servicemember’s right to a
speedy
trial under Article 10; preservation of the right to appeal adverse
Article 10
rulings is not only supported by the congressional intent behind
Article 10, it
also maintains the high standards of speedy disposition of charges
against
members of the armed forces and recognizes military procedure as the
exemplar
of prompt action in bringing to trial those members of the armed forces
charged
with offenses; a fundamental, substantial, personal right should not be
diminished
by applying ordinary rules of waiver and forfeiture associated with
guilty
pleas).
(appellate review of a litigated speedy trial motion under Article 10,
UCMJ, is
not waived by a subsequent unconditional guilty plea).
(the standard of diligence under which this Court reviews claims of a
denial of
speedy trial under Article 10 is not constant motion, but reasonable
diligence
in bringing the charges to trial; short periods of inactivity are not
fatal to
an otherwise active prosecution; further, although Sixth Amendment
speedy trial
standards cannot dictate whether there has been an Article 10
violation, the
factors from Barker v. Wingo are an apt structure for examining
the
facts and circumstances surrounding an alleged Article 10
violation).
(Article 10 and RCM 707 are distinct, each providing its own speedy
trial
protection; the fact that a prosecution meets the 120-day rule of RCM
707 does
not directly or indirectly demonstrate that the Government moved to
trial with
reasonable diligence as required by Article 10).
(an Article 10 violation rests in the failure of the Government to
proceed with
reasonable diligence; a conclusion of unreasonable diligence may arise
from a
number of different causes and need not rise to the level of gross
neglect to
support a violation).
(it is appropriate to consider the Barker v. Wingo factors in
determining whether a particular set of circumstances violates a
servicemember’s speedy trial rights under Article 10).
(this Court’s framework to determine whether the Government proceeded
with
reasonable diligence under Article 10, UCMJ, includes balancing the
following
four Barker v. Wingo factors: (1) the length of the
delay; (2) the
reasons for the delay; (3) whether the appellant made a demand for a
speedy
trial; and (4) prejudice to the appellant).
(in applying the Barker v. Wingo factors under Article 10, the
Court
remains mindful that it is looking at the proceeding as a whole and not
mere
speed; the essential ingredient is orderly expedition and not mere
speed;
constant motion is not the standard so long as the processing reflects
reasonable diligence under all the circumstances; an evaluation must
balance
the delay against the reasons for the periods of delay).
(an accused who was held in pretrial confinement for 117 days was not
denied
his right to a speedy trial under Article 10 where (1) once the
necessary steps
of investigation and coordination with civilian authorities were
completed, the
Government moved expeditiously to refer the charges; and (2) there was
no
material prejudice to the accused’s substantial rights where there was
no
evidence in the record that the conditions of that confinement were
harsh or
oppressive and there was no indication that his preparation for trial,
defense
evidence, trial strategy, or ability to present witnesses, on both the
merits
and sentencing, were compromised by the processing time in the case).
2003
United
States v. Cooper, 58 MJ 54 (the legal question
whether the
Government has used reasonable diligence in discharging its duty under
Article
10 to take immediate steps to try an accused is reviewed de novo
on
appeal).
(the Article 10 duty imposed on the Government immediately to try an
accused
who is placed in pretrial confinement does not terminate simply because
the
accused is arraigned).
(by the time an accused is arraigned, a change in the speedy-trial
landscape
has taken place; this is because after arraignment, the power of the
military
judge to process the case increases, and the power of the Government to
affect
the case decreases; as a result, once an accused is arraigned,
significant
responsibility for ensuring the accused’s court-martial proceeds with
reasonable dispatch rests with the military judge).
(although the speedy-trial landscape changes after arraignment, the
mandate
of Article 10 imposing an affirmative obligation of reasonable
diligence upon
the Government does not change; Article 10 provides greater protections
for
persons subject to the UCMJ than does the Sixth Amendment speedy trial
right;
those protections continue until the actual trial commences).
(while the role and control of the military judge after referral and
arraignment are factors to consider in the legal analysis of whether
the
Government proceeded with reasonable diligence, the Government must
itself move
diligently to trial and the entire period up to trying the accused will
be
reviewed for reasonable diligence on the part of the Government; thus,
although
arraignment serves to protect an accused’s speedy-trial rights, Article
10
protections do not automatically cease upon arraignment).
(in determining whether a particular set of circumstances violates a servicemember’s speedy trial rights under Article 10, it is appropriate to consider four factors in the context of Article 10’s “immediate steps” language and “reasonable diligence” standard: (1) the length of the delay; (2) the reason[s] for the delay; (3) the defendant’s assertion of the right; and, (4) prejudice to the defendant).
(the facts were
insufficient to raise the issue of an Article 10 violation where:
(1) appellant made no demand for speedy trial or to be released from
pretrial confinement; (2) appellant made no motion to dismiss or any
other motion for relief predicated on a lack of speedy trial; (3)
appellant entered a pretrial agreement within 2 days of trial; (4)
appellant received credit for his pretrial confinement on his sentence;
(5) there is no evidence of willful or malicious conduct on the part of
the government to create the delay; and, (6) appellant suffered no
prejudice to the preparation of his case as a result of the delay).