(dissenting):
As acknowledged by the majority, Marshall1 made clear that “the Government may still show diligence, despite pretrial confinement of more than 3 months, in such cases as those involving problems found in a war zone or in a foreign country . or those involving serious or complex offenses in which due care requires more than a normal time in marshaling the evidence, or those in which for reasons beyond the control of the prosecution the processing was unnecessarily delayed.” Despite the existence of all three of the exceptional factors enumerated in Marshall, the majority nevertheless has concluded that the Burton2 rule was violated in the present case. I respectfully dissent.
The offenses charged involved not only premeditated murder but also a conspiracy by four individuals to commit that offense. In addition to being serious, the offenses necessarily were also complex by virtue of the conspiratorial scheme which contemplated the hiring of a “hit-man” and the actual development of a plan to murder the victim, who was the husband of the accused’s paramour and co-conspirator.
Because the offenses occurred in Okinawa and because two of the co-conspirators were civilians, much of the evidence was developed and processed by the Okinawan authorities. This, in and of itself, necessitated substantial coordination with foreign law enforcement personnel. In fact, of the 36 witnesses eventually called by the prosecution to testify at trial, nearly half were Okinawan nationals, many of whom did not speak English. Adding to this the fact that the victim’s wife (one of the alleged co-conspirators) was attempting to leave Okinawa, which necessitated the preparation of an 88-page deposition, and the fact that another co-conspirator was being tried by Okinawan authorities, further complicating the investigative process, I simply cannot accept the majority’s reasoning that the foreign situs of the crimes did not significantly hinder the investigative effort by military authorities.
The majority dismisses the investigating officer’s statement that “many of the witnesses were also in custody and required unusually complex coordination to make them available” by noting that “these problems were [not] all that burdensome.” Yet, the Court’s conclusion is refuted by the very nature of the offenses and the foreign situs of the witnesses and participants. Even the majority apparently is willing to sanction a period in excess of 5 weeks to conduct the Article 32 investigation which consisted of numerous sessions during which over 140 pages of verbatim testimony were taken from nine witnesses in addition to over 50 pages of other statements and exhibits. But surely, Burton and Marshall did not contemplate a 5-week Article 32 investigation as the norm.3
*428To paraphrase Marshall, the complexity of this case required more than a “normal time” to marshal the evidence. As a result, I conclude that the prosecution sufficiently rebutted the presumed Article 10 violation which arose as a result of the accused’s confinement for over 90 days. While there were brief periods of inactivity occasioned by the heavy caseload of the prosecutor, a circumstance which ordinarily would not excuse a Burton violation, the major reasons for the delay in bringing the accused to trial were the extreme complexity of the case and the difficulties inherent in coordinating the investigation and prosecution with foreign authorities.4 The majority’s rationale makes the Burton rule all but insurmountable. I am unwilling to take that step.
In view of the majority’s disposition of the speedy trial question, no further discussion of the remaining granted issues is warranted.
. United States v. Marshall, 22 U.S.C.M.A. 431, 434, 47 C.M.R. 409, 412 (1973).
. United States v. Burton, 21 U.S.C.M.A. 112, 44 C.M.R. 166 (1971).
. Article 33, Uniform Code of Military Justice, *42810 U.S.C. § 833, sets the norm at 8 days. See United States v. Marshall, supra at 434, 47 C.M.R. at 412. See also United States v. Mason, 21 U.S.C.M.A. 389, 45 C.M.R. 163 (1972).
. See Thorne, The Continuing Problems in Case Processing, The Army Lawyer 6 (April 1976).