UNITED STATES, Appellee
v.
Steven A. DANYLO II, Airman Basic
U.S. Air Force, Appellant
No. 13-0570
Crim. App. No. 37916
United States Court of Appeals for the Armed Forces
Argued December 16, 2013
Decided March 24, 2014
STUCKY, J., delivered the opinion of the Court, in which RYAN
and OHLSON, JJ., joined. BAKER, C.J., filed a separate
dissenting opinion, in which ERDMANN, J., joined.
Counsel
For Appellant: Major Anthony D. Ortiz (argued).
For Appellee: Lieutenant Colonel C. Taylor Smith (argued);
Colonel Don M. Christensen, Major Terence S. Dougherty, and
Gerald R. Bruce, Esq. (on brief); Major Daniel J. Breen.
Military Judge: Matthew D. Van Dalen
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Danylo, No. 13-0570/AF
Judge STUCKY delivered the opinion of the Court.
Appellant was in pretrial confinement for nearly a year
before he was convicted of various drug crimes and assault. We
granted review to determine whether he was denied his Sixth
Amendment right to a speedy trial when his court-martial
commenced about 350 days after he entered pretrial confinement,
and whether the military judge erred when he focused only on a
portion of the delay in his speedy trial analysis after the
appellate court had already ruled on the other portion. We hold
that the delay does not rise to the level of a Sixth Amendment
violation in this case, and that the military judge below did
not err in his speedy trial analysis. We therefore affirm the
judgment of the United States Air Force Court of Criminal
Appeals (CCA).
I. Background
Pursuant to his pleas, Appellant was convicted of one
specification each of using marijuana, distributing marijuana,
using cocaine, distributing cocaine, introducing marijuana onto
base, and assault, in violation of Articles 112a and 128,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 912a, 928
(2012). Appellant’s speedy trial issues arose from the
Government’s slow prosecution of his case, even though he pled
guilty and was in pretrial confinement, and the slow review of
the Government’s appeal by the CCA.
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Appellant tested positive for drugs and was interrogated
about the results of the drug test on March 26, 2010. He was
restricted to base on April 9, and further restricted a day
later, with base liberties restricted and an escort required
outside of the dormitory. After being further restricted,
Appellant assaulted another airman, and on April 16, he was
placed in pretrial confinement. A few weeks after that, on May
3, he demanded a speedy trial for the first time.
Throughout June and July 2010, the Government prosecuted
his case by preferring charges, holding a hearing pursuant to
Article 32, UCMJ, 10 U.S.C. § 832 (2012), and referring charges
to court-martial. On August 6, the convening authority signed a
pretrial agreement in which Appellant agreed to plead guilty to
most charges. The pretrial agreement preserved the speedy trial
issue for appeal.
On August 10, 2010, 123 days after being restricted to base
and 116 days after being placed in pretrial confinement,1 the
military judge dismissed all charges against Appellant with
prejudice due to a speedy trial violation. The Government
appealed to the CCA on September 20, 2010, and 170 days later,
1
These time periods are miscalculated in the record as 121 days
and 115 days, respectively. In calculating the number of days
elapsed for a speedy trial claim, “do not count the first day,
but count the last day.” United States v. Vogan, 35 M.J. 32, 34
n.* (C.M.A. 1992) (citing Rule for Courts-Martial (R.C.M.)
707(b)(1)).
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the CCA granted the Government’s appeal. United States v.
Danylo, Misc. Dkt. No. 2010-15, slip op. at 14 (A.F. Ct. Crim.
App. Mar. 9, 2011) (order setting aside dismissal by military
judge and remanding for further proceedings) (unpublished).
This 170-day delay at the CCA occurred despite multiple motions
from both Appellant and the Government requesting expedited
review, and despite the statutory priority given Article 62
appeals. Article 62(b), UCMJ, 10 U.S.C. § 862(b) (2012) (“An
appeal under this section . . . shall, whenever practicable,
have priority over all other proceedings before [the CCA].”).
This Court denied a petition for review of that CCA decision
without prejudice. United States v. Danylo, 70 M.J. 217
(C.A.A.F. 2011) (denying petition).
Appellant’s court-martial resumed on March 31, 2011. He
argued again the speedy trial issue, which this time the
military judge denied. Pursuant to conditional pleas and a new
pretrial agreement limiting confinement to time served, which
now totaled 349 days, Appellant was convicted and sentenced to a
bad-conduct discharge and confinement for ten months. The
convening authority, recognizing that the term of confinement
had already been served, approved the sentence as adjudged on
April 22, 2011. Two years later, the CCA affirmed. United
States v. Danylo, No. ACM 37916, 2013 CCA LEXIS 334, 2013 WL
1911222 (A.F. Ct. Crim. App. Apr. 17, 2013) (unpublished).
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II. Discussion
We review de novo Sixth Amendment speedy trial issues.
United States v. Cooper, 58 M.J. 54, 58 (C.A.A.F. 2003). In
analyzing an appellant’s speedy trial right, we “giv[e]
substantial deference to the military judge’s findings of fact
unless they are clearly erroneous.” United States v. Thompson,
68 M.J. 308, 312 (C.A.A.F. 2010).
A. Appellant’s Speedy Trial Claim
“In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial . . . .” U.S. Const. amend
VI. In the military, Sixth Amendment speedy trial protections
are triggered upon preferral of charges or the imposition of
pretrial restraint. See Vogan, 35 M.J. at 33. In addition to
the Sixth Amendment, the UCMJ and the R.C.M. afford an accused a
right to a speedy trial. Under Article 10, UCMJ, 10 U.S.C.
§ 810 (2012), 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.
Kossman, 38 M.J. 258, 262 (C.M.A. 1993) (internal quotation
marks omitted). Specifically, R.C.M. 707(a) provides that
“[t]he accused shall be brought to trial within 120 days” of the
imposition of restraint. At Appellant’s first trial in 2010,
the military judge found a speedy trial violation under Article
10 and R.C.M. 707, but not the Sixth Amendment. Appellant
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presently claims a violation of his Sixth Amendment speedy trial
right. Appellant does not make an R.C.M. 707 claim before this
Court, and although he argued for an Article 10 violation in his
brief before this Court, the only assigned issue in his
petition, and the issue this Court granted, was the Sixth
Amendment issue.
In determining whether an appellant has been denied his
right to a speedy trial under the Sixth Amendment, this Court
considers the following 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.”
United States v. Mizgala, 61 M.J. 122, 129 (C.A.A.F. 2005)
(citing Barker v. Wingo, 407 U.S. 514, 530 (1972)).
1. Length of the Delay
“[U]nless the delay is facially unreasonable, the full due
process analysis will not be triggered.” United States v.
Merritt, 72 M.J. 483, 489 (C.A.A.F. 2013) (internal quotation
marks and citation omitted). Appellant was in pretrial
confinement for 349 days until his court-martial occurred. This
exceeds periods of pretrial confinement that we have previously
found to trigger full speedy trial analysis. See Thompson, 68
M.J. at 312 (145 days); United States v. Cossio, 64 M.J. 254,
257 (C.A.A.F. 2007) (117 days). The Government concedes that
this factor weighs in Appellant’s favor.
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2. Reasons for the Delay
Two main periods of time account for the 349-day delay.
First, it took the Government 116 days to bring Appellant to
trial after he entered pretrial confinement. Second, the
Article 62 appeal took 170 days, while Appellant remained in
confinement.
The first delay is primarily due to the prosecution’s
strategy, which was to turn all four of the other alleged
members of a drug ring into witnesses against Appellant. This
was a time-consuming approach because it required obtaining
immunity for the other witnesses, and it took over three months
from the date of Appellant’s entering confinement for the
Government to be ready to refer charges to court-martial.
However, this strategy was certainly not unusual or
inappropriate, and under the circumstances it did not take an
inordinate amount of time.
Under the Sixth Amendment speedy trial right, the Supreme
Court has indicated that such a prosecution strategy is
reasonable. See United States v. Ewell, 383 U.S. 116, 120
(1966) (noting that prosecution procedures “are designed to move
at a deliberate pace,” and finding no Sixth Amendment speedy
trial violation in a nineteen-month pretrial delay); see also
United States v. Grom, 21 M.J. 53, 57 (C.M.A. 1985) (noting that
“[i]n Barker, most of the five-year delay between arrest and
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trial was due to the prosecution’s efforts to obtain a
conviction” through the testimony of Barker’s co-actor). In
Grom, the appellant raised a speedy trial issue under both
Article 10, UCMJ, and the Sixth Amendment. Id. at 54. Without
distinguishing between the two, our predecessor court found
nothing improper in an eight-month delay due to the
prosecution’s strategy, even though “the charges finally
referred to trial were based on evidence available at the time
of the arrest.” Id. at 57. While the appellant in Grom was not
in pretrial confinement, he was somewhat restricted because he
had been involuntarily retained in military service beyond his
normal date of separation from active duty pending his trial.
See id. at 55; Barker, 407 U.S. at 533 (“[E]ven if an accused is
not incarcerated prior to trial, he is still disadvantaged by
restraints on his liberty.”).
In the present case, the Government provided substantial
justification for the time it took for its prosecution strategy,
including the process of obtaining immunity for its witnesses.
And as the CCA noted, the Government took this time to
investigate the case, convene a pretrial confinement review
hearing, prepare and obtain approval for the charges, and hold
an Article 32 hearing. Danylo, Misc. Dkt. No. 2010-15, slip op.
at 5. The prosecution in this case was therefore reasonable
under the Sixth Amendment.
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The other main source of delay -- the CCA’s delay on the
Article 62 appeal -- is unexplained. “[T]imely management and
disposition of cases docketed at the Courts of Criminal Appeals
is a responsibility of the Courts of Criminal Appeals.” United
States v. Moreno, 63 M.J. 129, 137 (C.A.A.F. 2006). Article
62(b), UCMJ, requires that an appeal by the government “shall,
whenever practicable, have priority over all other proceedings
before that court.”2 While Appellant’s appeal was pending,
different panels of the CCA issued decisions in 108 cases, three
of which were Article 62 appeals. Of these three, Appellant was
the only one in pretrial confinement. The CCA’s delay occurred
even though both parties had sought to expedite the processing
of the Government’s Article 62 appeal. The CCA also provided no
explanation as to why speedier disposition was not practicable.
See Danylo, Misc. Dkt. No. 2010-15, at 5 n.3.
Despite our significant concern about the processing time
at the lower court, we are reluctant to pierce the veil of the
2
Article 62(c), UCMJ, provides that delays resulting from an
appeal under Article 62 “shall be excluded” from speedy trial
analysis “unless an appropriate authority determines that the
appeal was filed solely for the purpose of delay with the
knowledge that it was totally frivolous and without merit.”
10 U.S.C. § 862(c) (2012). The Supreme Court “give[s] Congress
the highest deference in ordering military affairs” under its
constitutional mandate “[t]o make Rules for the Government and
Regulation of the land and naval Forces.” Loving v. United
States, 517 U.S. 748, 759, 768 (1996) (citing U.S. Const. art.
I, § 8, cl. 14). Nevertheless, Article 62(c) does not totally
immunize the Courts of Criminal Appeals against judicial review
of the timeliness of their decisions.
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CCA’s decision-making process and attempt to regulate the day-
to-day mechanics of the legal process assigned to the court.
See Moreno, 63 M.J. at 137 (noting that we apply “a more
flexible review” of the CCA’s review period, “recognizing that
it involves the exercise of [their] judicial decision-making
authority”). Here, fewer than six months elapsed between the
Government’s notice of appeal and the CCA’s decision. See id.
at 137-38 (“We find that a period of slightly over six months is
not an unreasonable time for review by the Court of Criminal
Appeals.”); Danylo, Misc. Dkt. No. 2010-15, slip op. at 14.
Because the Article 62 appellate process continued deliberately,
though slowly, this delay is “more neutral.” United States v.
Wilson, 72 M.J. 347, 352 (C.A.A.F. 2013) (quoting Barker, 407
U.S. at 531) (internal quotation marks omitted).
3. Assertion of the Speedy Trial Right
As the Government conceded, “[t]here is no dispute that
Appellant demanded a speedy trial and requested release from
pretrial confinement.” He made several requests for a speedy
trial throughout the course of his appeal beginning on May 3,
2010. Additionally, the Government moved for expedited
consideration multiple times. This factor weighs strongly in
Appellant’s favor.
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4. Prejudice
Appellant served two months of confinement beyond his
adjudged sentence. But in four decisions, no military judge or
court of appeals has found significant prejudice in Appellant’s
case. We also decline to do so.
There are “three similar interests” relevant to the
prejudice analysis: “(1) prevention of oppressive incarceration
pending appeal; (2) minimization of anxiety and concern of those
convicted awaiting the outcome of their appeals; and
(3) limitation of the possibility that a convicted person’s
grounds for appeal, and his or her defenses in case of reversal
and retrial, might be impaired.” Moreno, 63 M.J. at 138–39.
“Of these forms of prejudice, ‘the most serious is the last,
because the inability of a defendant adequately to prepare his
case skews the fairness of the entire system.’” Doggett v.
United States, 505 U.S. 647, 654 (1992) (quoting Barker, 407
U.S. at 532). While the first interest weighs in Appellant’s
favor, the second and third weigh against him.
First, Appellant was subjected to pretrial confinement for
nearly a year, two months longer than his adjudged sentence.
The military judge credited Appellant with the pretrial
confinement he served against his adjudged sentence, and
Appellant was entitled to be released immediately following the
conclusion of his court-martial. Appellant did not receive
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credit for the two months’ confinement he served beyond the ten-
month sentence, though, because he waived the issue. In his
pretrial agreement, he agreed to waive all waivable motions,
including motions pursuant to Article 13, UCMJ, 10 U.S.C. § 913
(2012) (limiting pretrial confinement). See United States v.
McCants, 39 M.J. 91, 93 (C.M.A. 1994) (“Failure to make a motion
for appropriate relief [for pretrial-confinement credit at
trial] constitutes waiver.”) (citing R.C.M. 905(e)). Appellant
made no such motion in this case; even had he done so, the issue
was waived in his pretrial agreement.
Moreover, we have never held that pretrial confinement
which exceeds an adjudged sentence is per se prejudicial. See
Bell v. Wolfish, 441 U.S. 520, 539 (1979) (holding that, when
“reasonably related to a legitimate governmental objective,”
pretrial detention is not “punishment”) (internal quotation
marks omitted). The Barker Court held that ten months of
pretrial confinement -- nearly as long as the case before us --
was not prejudicial where there was no adverse impact on the
defendant’s ability to present a defense. Barker, 407 U.S. at
534.
Second, Appellant argues that the confinement conditions
caused him particularized anxiety and concern. While the
military judge found that Appellant’s confinement “almost
certainly caused anxiety, stress, and the loss of ability to
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carry on a normal lifestyle,” the confinement conditions were
not unique to his case, and the CCA noted that some of his
anxiety can be attributed to his own misconduct while in
pretrial confinement. Danylo, 2013 CCA LEXIS 334, at *10, 2013
WL 1911222, at *3; Brief for Appellee at 27, United States v.
Danylo, No. 13-0570 (C.A.A.F. Nov. 13, 2013) (noting that, “[i]n
less than a year, Appellant ran afoul of [confinement] rules and
regulations 145 times”).
Appellant does not argue any basis for weighing the third
interest in his favor, and the record does not show one. There
is no indication of any loss of evidence or impact to case
preparation due to the delay. See Doggett, 505 U.S. at 654.
Appellant has not shown sufficient prejudice for a Sixth
Amendment violation. While the Barker/Moreno factors of the
length of the delay and the assertion of the speedy trial right
weigh in Appellant’s favor, the reasons for the delay are
prosecution strategy, which was reasonable, and slow but
deliberate appellate review. While Appellant served two months
of confinement in excess of what was actually adjudged, he has
not demonstrated prejudice that rises to the level of a Sixth
Amendment violation. See Reed v. Farley, 512 U.S. 339, 353
(1994) (“A showing of prejudice is required to establish a
violation of the Sixth Amendment Speedy Trial Clause, and that
necessary ingredient is entirely missing here.”). Thus,
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Appellant’s Sixth Amendment speedy trial rights were not
violated.
Further, given the facts of this case, granting the remedy
Appellant requests -- dismissal with prejudice -- would be
disproportionate to any prejudice he did suffer. Any prejudice
Appellant suffered does not rise to the level of a Sixth
Amendment violation, so he is not entitled to such a windfall.
While we find no Sixth Amendment violations on the facts of
this case, the lengthy delay in resolving the Article 62 appeal
is quite troublesome. The responsibility for timely decision
making at the Courts of Criminal Appeals lies with those courts
themselves. Moreno, 63 M.J. at 137. However, the
responsibility for providing the necessary resources for the
proper functioning of the appellate system, including the Courts
of Criminal Appeals, lies with the Judge Advocates General, who
are required by Congress to establish those courts and, within
the boundaries of judicial independence, to supervise them.
Articles 6(a), 66(a), UCMJ, 10 U.S.C. §§ 806(a), 866(a) (2012);
Moreno, 63 M.J. at 137; Diaz v. J. Advocate Gen. of the Navy, 59
M.J. 34, 40 (C.A.A.F. 2003). We expect all concerned with these
matters to exercise the necessary “institutional vigilance” to
ensure timely action on appeals, particularly those required by
statute to be expedited. See Diaz, 59 M.J. at 39–40.
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B. The Military Judge’s Speedy Trial Analysis
Appellant also argues that the military judge erred in his
second trial by only considering the period of time consumed by
the Article 62 appeal in evaluating the second motion to
dismiss. The military judge’s findings of fact covered the
entire period of delay from March 2010 through March 2011, but
he “focus[ed] only upon the delays incurred after the Article
62(a) appeal was brought by the government.” The military judge
said he did so because (1) the CCA had already considered and
ruled on the delay preceding the Article 62 appeal “so this
point is moot”; and (2) the Government’s failure to prosecute
“should not be imputed upon or held against the AFCCA.” The CCA
found that the military judge’s ruling was not clearly
erroneous, because the military judge had considered the entire
period of pretrial confinement even though his focus was on the
appellate review period. Danylo, 2013 CCA LEXIS 334, at *5–*6,
2013 WL 1911222, at *2.
Analysis of a Sixth Amendment speedy trial claim requires
consideration of the entire period of delay from arrest
(pretrial confinement) or preferral of charges until
commencement of trial on the merits. United States v.
MacDonald, 456 U.S. 1, 6–8 (1982). “That review spans a
continuum of process from review by the convening authority
under Article 60 . . . to review by a Court of Criminal Appeals
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under Article 66 . . . to review, in appropriate cases, by this
Court under Article 67.” Diaz, 59 M.J. at 37.
The military judge did consider the full period of
Appellant’s case since his positive drug test. In doing so, the
military judge essentially applied to the first segment of
processing time the “law of the case” doctrine, which states
that a trial court is bound by the ruling of a higher appellate
court remanding the case. United States v. Morris, 49 M.J. 227,
230 (C.A.A.F. 1998). Thus, the military judge had to focus on
the period of delay unaddressed by the CCA, since the CCA had
already decided that there was no speedy trial issue in the pre-
appeal delay.
Appellant argues that the military judge should have
considered the period of delay as one continuum, but this is
contrary to the reasoning of our case law. In our speedy trial
jurisprudence, we break down the periods of delay, analyze the
reasons for each, and may express concern with some but not
other periods of delay. See, e.g., Wilson, 72 M.J. at 352
(adopting the military judge’s separation of the pretrial delay
into distinct time periods requiring individual analysis);
Moreno, 63 M.J. at 136 (holding that in the post-trial context,
each time period is reviewed individually “because the reasons
for the delay may be different at each stage and different
parties are responsible for the timely completion of each
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segment”). The military judge did not err in focusing on one
portion of the delay in his speedy trial analysis where the CCA,
by whose judgment the military judge was bound, had already
ruled on the other portion.
III. Judgment
The judgment of the United States Air Force Court of
Criminal Appeals is affirmed.
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BAKER, Chief Judge, with whom ERDMANN, Judge, joins
(dissenting):
I would reverse this case. In my view, all four Barker v.
Wingo factors favor Appellant. Barker v. Wingo, 407 U.S. 514,
530 (1972). The second and fourth factors do not weigh heavily
in his favor, but they weigh in his favor nonetheless. Thus, if
Barker v. Wingo is the test for a Sixth Amendment speedy trial
claim, and all four factors weigh in favor of Appellant, I do
not see how or why he should not prevail on the underlying Sixth
Amendment claim. Therefore, I respectfully dissent.
Discussion
The Court agrees that Barker v. Wingo provides the analytic
framework for addressing Appellant’s speedy trial claim. Barker
invites consideration of four factors with no one factor being
dispositive: (1) the length of delay; (2) the reasons for the
delay; (3) whether the appellant made a demand for a speedy
trial; and, (4) prejudice to the appellant. Barker, 407 U.S. at
530, 533. The factors are related and “must be considered
together with such other circumstances as may be relevant. . . .
[C]ourts must still engage in a difficult and sensitive
balancing process.” Id. at 533. The Court further agrees that
as provided in Article 62(b), Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 862(b) (2012), an Article 62, UCMJ, appeal,
such as this one, “shall, whenever practicable, have priority
United States v. Danylo, No. 13-0570/AF
over all other proceedings before [the Court of Criminal Appeals
(CCA)].” “Priority” and “practicable” are not statutorily
defined, but surely their plain English meaning is clear -– the
case is supposed to move to the front of the line if feasible.
Where the Court divides is on consideration of the second
and fourth factors. First, I disagree on the extent to which
the second Barker factor -– the reasons for delay -- weighs
against Appellant. The majority concludes that this factor is
“more neutral.” United States v. Danylo, 73 M.J. __, __ (10)
(C.A.A.F. 2014) (internal quotation marks and citations
omitted). It reaches this conclusion based on the determination
that the other “main source of delay -- the CCA’s delay on the
Article 62 appeal -- is unexplained.” Id. at __ (9). According
to the majority, the delay is unexplained, because “[d]espite
our significant concern about the processing time at the lower
court, we are reluctant to pierce the veil of the CCA’s
decision-making process and attempt to regulate the day-to-day
mechanics of the legal process assigned to the court.” Id. at
__ (9-10). I share this underlying concern, as first expressed
in United States v. Moreno, 63 M.J. 129, 137 (C.A.A.F. 2006).
However, this Court need not pierce the deliberative veil
of the CCA or, for that matter, Monday morning quarterback the
day-to-day mechanics of the CCA, to see how this factor weighs
in Appellant’s favor. One need only look to the military
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judge’s findings of fact.1 These findings of fact include the
following:
The CCA granted the Government’s Article 62, UCMJ, appeal
“170 days after the Government originally filed its Article
62 appeal and 191 days after docketing with the CCA.”
“108 cases were decided by the AFCCA between the submission
of the Article 62 appeal (20 September 2010) and 9 March
2011.”
“Three of those cases were Article 62(a) appeals and 65
were merits cases.” This was also the only case “in which
the accused was in pretrial confinement.”
“[S]ince the summer of 2010, the AFCCA has had four
unfilled positions for appellate court judges (out of 9)
and one unmanned position for a law clerk (out of 2).”
Appellant and Government each moved for expedited
processing three times while the case was pending at the
CCA.
On October 16, 2010, the Government “requested oral
argument.” But the CCA did not respond until January 14,
2011, when it ordered oral argument for January 20, 2011.
In my view, Appellant should prevail on the second factor
based on these factual findings and the absence of any
counterbalancing reason or explanation for the delay. For sure,
there might well be good reason why the CCA took the time it did
to decide this case, even with the extenuating factors of
pretrial confinement in the context of an underlying speedy
1
As the majority notes, “we give substantial deference to the
military judge’s findings of fact unless they are clearly
erroneous.” Danylo, 73 M.J. at __ (5) (internal quotation
marks, brackets, and citation omitted). The majority has not
concluded that any of the military judge’s findings are clearly
erroneous.
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trial claim. An appellate court might reasonably take six
months to debate and deliberate on a difficult or complex
question of law.2 However, in the absence of an appropriate
reason explaining the delay, and thus where the only facts that
are known are those stated above, factor two is not “more
neutral”; it favors Appellant. Danylo, 73 M.J. at __ (10)
(internal quotation marks and citation omitted); see United
States v. Wilson, 72 M.J. 347, 353 (C.A.A.F. 2013) (“The delays
identified by the military judge weigh against the Government,
however, that weight is minimized when balanced against the
Government’s explanations as to the overall time period.”).
Moreover, several additional facts weigh in favor of
Appellant when considering the second factor on reasons for
delay. One, Appellant was held in pretrial confinement while
the Government appealed the military judge’s earlier ruling in
favor of Appellant’s speedy trial question. Two, during this
period, Appellant asserted his right to a speedy trial and
timely appellate review, including priority review in the
context of Article 62, UCMJ. In fact, the Government three
times joined Appellant in requesting expedited appellate review.
2
Indeed, as a general rule “an interlocutory appeal by the
Government ordinarily is a valid reason that justifies delay.”
United States v. Loud Hawk, 474 U.S. 302, 315 (1986). But
“delays in bringing the case to trial caused by the Government’s
interlocutory appeal may be weighed in determining whether a
defendant has suffered a violation of his rights to a speedy
trial.” Id. at 316.
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Three, the applicable law on speedy trial is settled. And
fourth, most importantly, the Government failed to staff the CCA
at adequate levels during the pendency of Appellant’s Article
62, UCMJ, appeal. For sure, points one and two relate directly
to other Barker factors. But they are relevant to factor two
addressing the reasons for delay. Why? Because in my view,
where an accused is in pretrial confinement and otherwise
asserts his right to priority Article 62, UCMJ, review,
unexplained delay is not neutral, it cuts in favor of Appellant.
Neither the Government nor the majority cite any facts that
counterbalance these facts and pull the second factor back to
neutral.
The second divide between the majority and dissent is on
the question of whether two months of incarceration beyond one’s
point of adjudged confinement constitutes Barker prejudice,
where an Appellant otherwise prevails on the preceding three
factors.3 In this regard, it is worth noting that the majority
and dissent agree on the facts: “Appellant served two months of
confinement beyond his adjudged sentence.” Danylo, 73 M.J. at
__ (11).
3
This question arises whether one adopts the majority’s or the
dissent’s analysis as the majority concludes before addressing
the prejudice prong of Barker that Appellant has prevailed on
factors one and three, with the second factor being “more
neutral.” Danylo, 73 M.J. at __ (10) (internal quotation marks
and citation omitted).
5
United States v. Danylo, No. 13-0570/AF
However, I disagree with the majority on what as a matter
of law is required to show Barker prejudice. The Barker Court
recognized three interests that could give rise to Sixth
Amendment prejudice: “(i) to prevent oppressive pretrial
incarceration; (ii) to minimize anxiety and concern of the
accused; and (iii) to limit the possibility that the defense
will be impaired.” United States v. Mizgala, 61 M.J. 122, 129
(C.A.A.F. 2005) (quoting Barker, 407 U.S. at 532). To be sure,
the Barker Court held that “[o]f these, the most serious is the
last, because the inability of a defendant adequately to prepare
his case skews the fairness of the entire system.” Id.
Accordingly, the majority concludes that “[w]hile the first
interest weighs in Appellant’s favor, the second and third weigh
against him.” Danylo, 73 M.J. at __ (11). The problem with
this conclusion is that while Barker highlights the gravity of
prejudice that impairs the defense, it does not do so at the
exclusion of the other two interests.
Two months of excessive incarceration is not a long time
compared to other periods of incarceration found oppressive
under Barker nor is it oppressive in the sense that it is unduly
harsh. It is nonetheless time spent above and beyond the actual
sentence received, and that is prejudicial where such
incarceration is based on unreasonable delay attributable to the
6
United States v. Danylo, No. 13-0570/AF
government.4 Thus, it is not logical to conclude that time
served in confinement beyond what was lawfully adjudged or
should have been served is not oppressive or prejudicial.
Therefore, because I conclude that all four Barker factors
favor Appellant, he should prevail on his Sixth Amendment claim.
4
When delays in the processing of a case are in the course of
ordinary business and trial strategy, that delay cannot be held
against the government. United States v. Ewell, 383 U.S. 116,
120 (1966) (noting that “ordinary procedures for criminal
prosecution are designed to move at a deliberate pace. A
requirement of unreasonable speed would have a deleterious
effect both upon the rights of the accused and upon the ability
of society to protect itself.”). Article 62(c), UCMJ, is
consistent with this view and excludes “[a]ny period of delay
resulting from an appeal under this section . . . in deciding
any issue regarding denial of a speedy trial.” However, Article
62, UCMJ, does not purport to eliminate the Sixth Amendment
right to a speedy trial or give the government a pass on the
application of Barker v. Wingo.
7