(dissenting):
17. The precise question before this Court is whether the Court of Military Review erred in reversing the military judge’s ruling dismissing the charges for pretrial delay in violation of the Fifth Amendment. See United States v. Vogan, 35 MJ 32, 34 ¶ 8 (CMA1992). The Court of Military Review was required to use an abuse-of-diseretion standard (see United States v. Fuzer, 18 F.3d 517, 519 ¶ 9 (7th Cir.1994)). It found such an abuse because the judge based his dismissal action on a record which showed no legally cognizable prejudice to appellaht and no unreasonable government conduct. See United States v. Windom, 19 F.3d 1190, 1195 ¶ 15 (7th Cir.1994); see also United States v. Byrd, 31 F.3d 1329, 1339-40 ¶23 (5th Cir. 1994).
18. The majority opinion agrees and states that “appellant has not met his burden of showing egregious or intentional tactical delay and actual prejudice.” 41 MJ at 452 ¶ 15. I disagree and have attached the military judge’s findings of fact in this case. See Appendix. I conclude that they do provide some evidence of legally cognizable prejudice and “egregious or intentional” government conduct. Accordingly, I would reverse the Court of Military Review’s decision and uphold the judge’s discretionary decision in this regard.
*454APPENDIX
NAVY-MARINE CORPS TRIAL JUDICIARY SOUTHEAST JUDICIAL CIRCUIT,(PENSACOLA) UNITED STATES NAVY
UNITED STATES )
) V. ) GENERAL COURT-MARTIAL_ ) RULING ON DEFENSE
KAYNO M. REED ) MOTION TO DISMISS
420-17-3028 )
SN, USNR )
OPINION OF THE COURT: Although the Defense has raised several Issues of merit in its Motion to Dismiss, for reasons to become apparent, this opinion will address only the allegation that the accused was denied his Fifth Amendment right to Due Process. The Due Process guarantee of the Fifth Amendment applies to prepreferral delays in prosecuting the accused. Once preferral has occurred, other speedy trial guarantees apply.
The leading case on the Fifth Amendment Due Process Clause is United States v. Lovasco. 431 U.S. 783 (1977). In this case the Supreme Court held that for a delay to be in violation of the Fifth Amendment Due Process Clause it must violate those "fundamental conceptions of justice which lie at the base of our civil and political institutions” and which define the "community sense of fair play and decency” Lovasco at 790. Military cases on this issue include Unites States v. Vogan. 35 MJ 32 (CMA 1992), United States v. Reeves. 34 MJ 1261 (NMCMR 1992). These cases require a court to evaluate a claimed violation of the Fifth Amendment Due Process Clause by looking to any actual prejudice to the accused and considering the reasons for delay.
Actual prejudice to the accused in this case includes the following:
An approximate 20 month delay occurred from the time of notice of the crime until preferral of charges. A delay of this magnitude clearly creates the Inference that memories will have faded., This inference is easily supported by the NCIS Investigation which reported that because of the delay a witness to the incident was unable to recall and Identify others who were present when this event allegedly occurred. This delay will further have, at a minimum, denied the defense the opportunity to question the witnesses, as did the Government, at a time when their memory would be fresh. Rather, as the Government Indicated in their Response to this motion, the witnesses will now likely refresh their recollection with the statements taken by the Government through NCIS.
. The Defense specifically alleges the delay resulted in an inability to identify and locate certain witnesses generally
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*455identified as "two black males" in the room the night of this alleged incident. This contention is supported by the NCIS investigation which discusses a similar inability.
The accused has been held over his EAOS which would have been 4 September 1993. He was not free to return to civilian life at the expiration of his two year active duty enlistment. This prejudice is one not easily measured tinder a civilian "community sense of fair play,and decency." as requiredjby Un vasco. In a civilian community the accused is not restrained by the investigating jurisdiction unless he is in some fashion confined or his freedom of movement restricted — a stage at which other speedy trial rules would apply. In the military community a simple administrative action ensures retention of jurisdiction end the concomitant restriction on his freedom to re-enter the civilian community.
There is further a strong prejudice which attaches to an accused in the military, as this accused, whose command knows he is a "suspect" and then becomes the convening authority responsible for criminal processing of the alleged offense. In this regard, the military environment is unique and different than the civilian community and requires an application of a "community sense .of fair play and decency" which may be different than that which applies in a civilian community. In the case at bar, we are concerned with a military community where, to analogize to the -civilian community, the accused's "employer-boss" is in effect the "district attorney" who is determining whether to proceed with charges. This is markedly different than in the civilian community where an individual may be a suspect but, other than the investigators and possibly the district attorney, his personal/professional life will be by-and-large unaffected by these potential charges. For this accused, he was required to rely on his commanding officer, the "district attorney", for performance evaluations, recommendations for advancement, opportunities for school and training and other areas where he would have to compete with shipmates for consideration. The prejudice to someone in this predicament is subtle but obvious. It appears the accused's commanding officer clearly became aware the accused was a suspect in August 1992 when a NCIS agent came aboard the ship in Malta to photograph the accused for a line-up. For over 11 months prior to preferral, the accused's commanding officer was not only aware that he was a suspect but actually had a complete copy of the investigation and was responding to the alleged victim's command concerning action he was taking. At one point in December 1992, he even ordered further investigation by NCIS.
*456The Government's justification for the delay includes the following:
A lengthy chronology of investigative efforts to locate witnesses and interview them around the world. Since this Incident allegedly occurred at "A" school but was not reported until after the school had been completed, the students had been ^ent to their next assignment and it was no easy task to locate them. This process, however, became ever more bogged-down as the investigative delays themselves caused further difficulties in locating suspects. It appears, as an example, that NCIS waited ten months to interrogate the accused. To illustrate further - delay, at one point after the investigation had been closed, it was re-opened at the request of the commanding ’officer. It took NCIS over seven months of investigation for the limited purpose of obtaining additional Information which was essentially that the witness could not remember anything further. In an effort to both explain the delay and minimize its prejudice, the Government is forced to take inconsistent positions. They argue, on one hand, that the investigation required' significant time because of the many witnesses and difficulty in perfecting their case, yet they argue that the accused is not prejudiced by this delay since the case is relatively straight-forward and the only significant witness is the victim. The Government cannot have it both ways.
In summary, it is not the purpose of this Court to point a finger or lay blame at Government officials for delays in this case. The court is aware that there are investigative techniques to employ; resources are at times strained; and, the Government is entitled to perfect its case prior to preferralof charges. Additionally, commanding officers have ships to command and deployments to make. The Inescapable conclusion in this case, however, is that the delay from notice of offense until preferral of charges was without justification and occurred to the great prejudice of the accused. This case concerns an incident which was quickly narrowed to one suspect, one victim and a handful of witnesses. There was no physical evidence to examine, no records to search and no lab or forensic tests to conduct. Indeed, the Government indicates at trial they Intend to call only the alleged victim and two witnesses. The Government took approximately 20 months to investigate this Incident and is now ready to prosecute using three witnesses. Nothing in the Government's argument serves as an adequate explanation of this delay. This delay was not without prejudice to the accused as he served over two-thirds of his enlistment as a rape "suspect" and known to be such by his commanding officer. The accused is further prejudiced by his involuntary extension beyond his enlistment and the many complications created by an effort to prepare a defense several years after the alleged incident.
Furthermore, while the statute of limitations may provide the outermost time at which an accused may be brought to trial, as the Government correctly argues, it clearly does not establish *457an entitlement for delay. Each case must be evaluated on its own merits, both the reasons for delay and the prejudices suffered by ■the accused. A relatively uncomplicated offense should not require an accused to suffer the prejudices as discussed above including those attendant to being labeled a "suspect" in a rape for over a year while at the same time the Government's action is highlighted by month after month of complete inactivity. This Court finds that the accused has been denied the due process guaranteed him under the Fifth Amendment to the U. S. Constitution,
ZT ZS HEREBY ORDERED, Defense Motion to Dismiss is granted and the charge and specifications are dismissed with prejudice.
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