MISCELLANEOUS MATTERS: Speedy Trial: Article 10

2013 (September Term)

United States v. Danylo, 73 M.J. 183 (under Article 10, UCMJ, once an appellant is placed in pretrial confinement, the government is required to exercise reasonable diligence in bringing the accused to trial). 

United States v. Lee, 73 M.J. 166 (where an Article 10, UCMJ, speedy trial motion is litigated at trial, that issue is preserved for appeal despite an unconditional guilty plea; this narrow exception is based on the unique nature of the protections set forth in Article 10). 

2012 (September Term)

United States v. Wilson, 72 M.J. 347 (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). 

(the constitutional right to a speedy trial is a fundamental right; it is protected both by the Sixth Amendment and Article 10).

(Article 10 imposes on the government a more stringent speedy-trial standard than that of the Sixth Amendment; and it plays a significant role when servicemembers are confined prior to trial). 

(the standard of diligence under which an appellate 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). 

(an appellate court’s framework to determine for Article 10 purposes whether the government proceeded with reasonable diligence in bringing an accused to trial includes balancing the four Barker v. Wingo (407 US 514, 530 (1972)) factors: (1) the 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; none of the four factors has any talismanic power; rather, a court must weigh all the factors collectively before deciding whether appellant’s right to a speedy trial has been violated). 

(the length-of-delay factor under the Barker v. Wingo Article 10 analysis 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 factors that go into the balance).

(a delay of 174 days between the date the accused was placed in pretrial confinement to the date of trial was sufficient to trigger the full Barker v. Wingo Article 10 analysis). 

(delays attributable to an accused do not weigh in favor of a Sixth Amendment violation). 

(with respect to the reasons-for-the-delay factor under Barker v. Wingo Article 10 analysis, as a general matter, factors such as staffing issues, responsibilities for other cases, and coordination with civilian officials reflect the realities of military criminal practice that typically can be addressed by adequate attention and supervision, consistent with the government’s Article 10 responsibilities; however, there are occasions when mission requirements may make it impossible to process cases as expeditiously as one might ideally wish). 

(the government is tasked with handling cases with reasonable diligence for Article 10 speedy trial purposes). 

(an accused’s assertion of his speedy trial right is entitled to strong evidentiary weight in determining whether he was deprived of the right). 

(an accused’s speedy trial demand, made after he was subject to 114 days of pretrial confinement, only slightly favored the defense in determining whether the accused’s Article 10 right to a speedy trial was violated, where the motion was made 14 days after the accused’s motion to plead guilty was denied). 

(the prejudice factor under the Barker v. Wingo Article 10 analysis should be assessed in the light of the interests of an accused that the speedy trial right was designed to protect; these interests are: (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). 

(alleged conditions of a racially tense environment with respect to an accused’s pretrial confinement in a civilian prison did not constitute oppressive pretrial confinement for purposes of the prejudice factor under the Barker v. Wingo Article 10 analysis where the accused did not file an Article 13 motion concerning his treatment and the record does not reflect that he complained to his chain of command; failure to raise an Article 13 claim, though not dispositive of an Article 10 claim, may be considered as a relevant factor bearing upon the question of prejudice for oppressive confinement). 

(generalized and conclusory references to the anxiety and distress that are intrinsic to incarceration are not sufficient to demonstrate particularized prejudice under the Barker v. Wingo Article 10 analysis). 

(delay of 115 days attributable to the government prior to an accused’s trial did not violate his Article 10 speedy trial right where, although there were several periods of unexplained or unjustified delay, those delays appeared to be the result of inattention and neglect, and although they weigh against the government, they did not weigh as heavily against the government as they would if there was a deliberate effort to delay the case; in addition, the accused waited until he had been confined for 119 days to demand a speedy trial, and he failed to establish that the conditions of his confinement or any anxiety or concern that he suffered rose to the level of Article 10 prejudice). 

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). 

 
2007


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).

(while Article 10 issues cannot be resolved simply by determining whether similar delays would have violated the Sixth Amendment under Barker v. Wingo, it is appropriate to consider those factors in determining whether a particular set of circumstances violates a servicemember’s speedy trial rights under Article 10).

1999

United States v. Birge
, 52 MJ 209 (the test for assessing an alleged violation of Article 10 is whether the government has acted with “reasonable diligence” in proceeding to trial, and failure to proceed with reasonable diligence would constitute a violation of Article 10 even if the government has complied with RCM 707 and the Sixth Amendment).

(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).


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