United States v. Cooper

UNITED STATES, Appellee

v.

Gregory J. COOPER, Seaman
U.S. Navy, Appellant

No. 02-6001

Crim. App. No. 01-1867

United States Court of Appeals for the Armed Forces

Argued October 15, 2002

Decided January 30, 2003

CRAWFORD, C.J., delivered the opinion of the Court, in
which GIERKE, EFFRON, BAKER, and ERDMANN, JJ., joined. GIERKE,
J., filed a separate concurring opinion.

Counsel

For Appellant: Lieutenant Kevin B. Gerrity, JAGC, USNR
(argued); Lieutenant Marcus N. Fulton, JAGC, USNR, and
Lieutenant James E. Golladay, JAGC, USN (on brief).

For Appellee: Lieutenant Lars C. Johnson, JAGC, USNR (argued);
Colonel R.M. Favors, USMC (on brief).

Military Judges: Nels Kelstrom, Peter J. Straub, and
Kurt E. Grunawalt

THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Cooper, No. 02-6001/NA

Chief Judge CRAWFORD delivered the opinion of the Court.

This case is before us on interlocutory appeal from

Appellant’s pending court-martial at the Great Lakes Training

Center, Chicago, Illinois. At that court-martial, the military

judge dismissed the charges against Appellant, concluding that

the Government failed to comply with the speedy-trial

requirements of Article 10, Uniform Code of Military Justice

[hereinafter UCMJ], 10 U.S.C. § 810 (2002). From that ruling,

the Government appealed to the United States Navy-Marine Corps

Court of Criminal Appeals under Article 62, UCMJ, 10 U.S.C. §

862 (2002). That court reversed the military judge’s ruling and

remanded the case for further proceedings. United States v.

Cooper, 56 M.J. 808, 812 (2002). The correctness of that

decision is now before us, on appeal by Appellant under Article

67, UCMJ, 10 U.S.C. § 867 (2002).

Factual and Procedural Background

On March 14, 2001, Appellant was placed in pretrial

confinement for his suspected involvement in a large drug

distribution ring and unauthorized absence. On March 19, a

magistrate’s hearing was conducted to review the lawfulness of

this confinement. See Rule for Courts-Martial 305 [hereinafter

R.C.M.]. Appellant was represented by defense counsel at this

hearing, and upon its completion, the magistrate decided that

continued confinement was appropriate. Cooper, 56 M.J. at 809.

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On April 5, new defense counsel was detailed to represent

Appellant,1 and on April 10, charges against Appellant were

preferred. On April 26, 16 days after charges were preferred

and 43 days after Appellant was ordered into pretrial

confinement, the commander appointed the investigating officer.

Forty-four days after preferral of the charges, on May 24, an

investigation under Article 32, UCMJ, 10 U.S.C. § 832 (2002),

commenced. Between the dates of preferral and that hearing,

several things occurred, including the consideration and

disposition of various defense counsel requests, to include a

new pretrial confinement hearing; travel authorization to attend

Article 32 hearings in related cases; appointment of a named

individual military defense counsel to represent Appellant;

production of witnesses for the Article 32; and disqualification

of the Article 32 investigating officer and appointment of a new

one.

On June 8, the Article 32 investigating officer completed

his report recommending a general court-martial, and on June 20,

the report was faxed to the trial counsel prosecuting

Appellant’s case. Five days later, charges in Appellant’s case

were referred to a general court-martial, and on July 6,

1
The Naval Legal Service Office [hereinafter NLSO] detailed this defense
counsel to Appellant’s case, independent of the Government’s request on April
11, immediately after charges were preferred, that defense counsel be
detailed. The NLSO also detailed the defense counsel that represented
Appellant at the magistrate’s hearing. Cooper, 56 M.J. at 810-11 n.4. No
evidence was introduced concerning a NLSO duty officer, or why the NLSO took
so long to detail Appellant’s defense counsel.
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Appellant was arraigned, 114 days into his pretrial confinement.

The military judge ruled this arraignment satisfied the 120-day

speedy trial clock of R.C.M. 707, and we agree, which is why

this appeal concerns only whether Article 10 was violated.2

On July 9, ruling on a defense motion, the military judge

found that the Government improperly denied Appellant’s request

for individual military defense counsel and ordered the matter

resolved. The military judge did not explain what factors he

employed under R.C.M. 506(b)(1)-(2) in reaching this decision.

The military judge recognized, however, that if individual

military counsel was appointed, the Article 32 hearing might

have to be re-opened. He also noted that the Article 32 hearing

was defective due to the investigating officer’s failure to

provide summarized statements of the witnesses. He therefore

continued the court-martial proceedings until these issues were

resolved, which he speculated could take three weeks. Also on

July 9, defense counsel filed a speedy-trial motion seeking

dismissal, but he withdrew it in light of the military judge’s

ruling on the other motion.

On July 16, individual military counsel was appointed, and

25 days later, on August 10, the Article 32 hearing was reopened

2
At trial and on appeal, defense counsel suggested July 6 was not the
arraignment date, pointing to various times thereafter the charges were re-
referred. However, the military judge concluded these re-referrals “were
administrative in nature and reflected identical charges and specifications
as the original referred charges. . . .[T]hey are permissible and do not
restart the Rule 707 clock. Therefore, [Appellant] was arraigned [on July
6,] within the 120 day requirement of RCM 707.”
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by the same investigating officer who conducted it previously.

That investigating officer had been deployed overseas from July

9 to August 6, and because of this, defense counsel had

requested a new investigating officer so the Article 32 hearing

could be reopened sooner. The request was denied, however,

because the staff judge advocate believed it was more expedient

to await the return of the original investigating officer than

to appoint a new one.

“No new substantive matters were presented” by either side

at the reopened Article 32 hearing. Cooper, 56 M.J. at 810.

Consequently, on August 13, the Investigating Officer again

recommended a general court-martial, and on August 24, the

convening authority re-referred the initial charges. Then on

August 30, “[d]efense and trial counsels both submit[ted]

prospective dates for motions and trial. All counsel agree[d]

on docketing dates.” However, on September 7, a new military

judge was assigned to the case, and “[a] date [was] determined

for motions and trial that [took] into account both government

and defense availability.”

Finally, on September 26, 196 days into Appellant’s

pretrial confinement, government and defense counsel litigated

Appellant’s speedy-trial motion. The next day, the military

judge ruled in Appellant’s favor and dismissed the charges with

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prejudice, focusing on three time periods that “brought into

question” whether the Government had complied with Article 10’s

speedy-trial requirements. The first was the 28 days between

Appellant’s placement in pretrial confinement and the

Government’s request that defense counsel be detailed to the

case. See note 1, supra. The second was the 12 days between

the original Article 32 report’s completion and its being faxed

to trial counsel. The third was the 32 days between the

military judge’s order to resolve the issue of individual

military defense counsel, and the Article 32 hearing’s reopening

thereafter. Cooper, 56 M.J. at 810.

The Government appealed the military judge’s ruling to the

Court of Criminal Appeals, and as noted above, that court

reversed. In doing so, it stated that “[i]n evaluating whether

a military judge’s determination that the prosecution . . .

[violated Article 10] was correct, we apply an abuse-of-

discretion standard.” Id. (citing United States v. Hatfield, 44

M.J. 22, 24 (C.A.A.F. 1996)). However, the court then conducted

what appears to be a de novo review, reexamining each of the

time periods questioned by the military judge and concluding not

that the military judge abused his discretion, but that “the

Government acted with reasonable diligence in bringing the

appell[ant] to trial. . . . The appell[ant] was not denied his

right to a speedy trial under Article 10, UCMJ.” Id. at 812.

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With respect to the first time period, the lower court

stated: “Although this delay in appointing counsel was

regrettable, we do not find it to be unreasonable under the

circumstances.” Id. at 811. With respect to the second time

period, the court stated: “[W]e do not find this 12 days of

delay unreasonable in view of the expeditious . . . referral of

charges that occurred a mere 5 days later.” Id. And with

respect to the third time period, the court held: “[T]his post-

arraignment delay was not attributable to the Government for

speedy-trial purposes. Once the arraignment occurred, the

speedy-trial clock stopped with respect to an Article 10, UCMJ,

analysis, because the appell[ant] had been brought to trial at

that point.” Id. (citing R.C.M. 707(b)(1); United States v.

Kossman, 38 M.J. 258, 261 n.3 (C.M.A. 1993)).

Significantly, in reaching their decisions, neither the

Court of Criminal Appeals nor the military judge made reference

to the factors contained in Barker v. Wingo, 407 U.S. 514

(1972), relevant to Sixth Amendment speedy-trial determinations.

However, in United States v. Birge, 52 M.J. 209 (C.A.A.F. 1999),

this Court stated that the “appropriate” analysis in determining

whether Article 10 has been violated involves consideration of

those factors, one of which is “prejudice to the defendant”

resulting from the delay. Id. at 212 (quoting Barker, 407 U.S.

at 530). And although the military judge did consider

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prejudice, both he and the trial counsel apparently believed all

that was needed to prove it was the pretrial confinement itself.3

This view of the law is incorrect, as discussed infra.

As a result, we granted review of the following issues:

I. WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL
APPEALS APPLIED AN IMPROPER STANDARD OF REVIEW.

II. WHETHER THE NAVY-MARINE CORPS COURT OF CRIMIAL
APPEALS ERRED WHEN IT FOUND THAT THE TRIAL JUDGE
ERRED AS A MATTER OF LAW WHEN HE GRANTED APPELLANT’S
MOTION TO DISMISS UNDER ARTICLE 10.

III. WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL
APPEALS ERRED AS A MATTER OF LAW IN HOLDING THAT
POST-ARRAIGNMENT DELAY IS NEVER ATTRIBUTABLE TO THE
GOVERNMENT UNDER ARTICLE 10.

IV. WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL
APPEALS ERRED AS A MATTER OF LAW BY IGNORING THE
BIRGE FACTORS IN ANALYZING THE ARTICLE 10
VIOLATION.

Having considered these issues, we now we reverse the

decision of the Court of Criminal Appeals, set aside the ruling

of the military judge, and hold: First, that the Court of

3
The record of trial reflects the following dialogue between the military
judge and trial counsel:

MJ: In U.S. v. Hatfield wasn’t the only prejudice the fact that
he was sitting in the brig in pretrial confinement? . . . [W]asn’t the sole
prejudice listed as the fact he was in the brig?

. . .

TC: Apparently, the answer is yes, sir.

. . .

MJ: . . . I don’t need to find anything more prejudicial if I find that
the government has not taken reasonable – has shown reasonable or due
diligence to bring him immediately to trial. Defense wins that. I don’t
have to figure out some other additional prejudice.

TC: That’s correct, sir.
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Criminal Appeals erred when it concluded the standard of review

is abuse of discretion when reviewing a ruling the Government

violated Article 10. The standard of review for such a ruling

is de novo. Second, that the Court of Criminal Appeals erred

when it concluded arraignment stops the Article 10 speedy-trial

clock. And third, that the Court of Criminal Appeals and the

military judge erred by not considering the Birge factors in

deciding whether the Government violated Article 10 in this

case.

Standard of Review

In the military justice system, an accused’s right to a

speedy trial flows from various sources, including the Sixth

Amendment, Article 10 of the Uniform Code of Military Justice,

and R.C.M. 707 of the Manual for Courts-Martial. In the federal

criminal justice system, defendants’ speedy trial rights also

emanate from the Sixth Amendment, and from the Speedy Trial Act,

18 U.S.C. §§ 3161-3174 (2002). In both systems, the standard of

review on appeal for speedy trial issues is de novo.

At the outset, we note that in Hatfield, 44 M.J. at 25, we

concluded that “the military judge did not abuse his discretion”

in ruling on an Article 10 motion. In light of this comment, it

is understandable why the court below believed abuse of

discretion was the proper standard of review in this case.

Hatfield, however, did not describe abuse of discretion as the

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standard of review, and we did not have occasion in that case to

analyze the relationship between abuse of discretion and de novo

review. We do so now.

The majority of circuit courts that have examined the

appropriate standard of review for Sixth Amendment speedy trial

issues have adopted the de novo standard. See, e.g., United

States v. Tanh Huu Lam, 251 F.3d 852, 855 (9th Cir.

2001)(standard of review of constitutional speedy trial claim is

de novo); United States v. O’Dell, 247 F.3d 655, 666 (6th Cir.

2001)(same); United States v. Lugo, 170 F.3d 996, 1000 (10th

Cir. 1999)(same); United States v. Clark, 83 F.3d 1350, 1352

(11th Cir. 1996)(same).4

Equally settled is that the circuit courts “review a

district court’s interpretation of the Speedy Trial Act de

novo.” United States v. Hemmings, 258 F.3d 587, 591 (7th Cir.

2001)(quoting United States v. Salerno, 108 F.3d 730, 734 (7th

Cir. 1997)). See also United States v. Salgado, 250 F.3d 438,

453 (6th Cir. 2001). The district court’s factual

determinations are accorded deference -- rejected only if

clearly erroneous -- but its “[c]onclusions of law under the

Speedy Trial Act are reviewed de novo.” United States v. Brown,

285 F.3d 959, 961 (11th Cir. 2002). See also United States v.

Martinez-Espinoza, 299 F.3d 414, 416 (5th Cir. 2002); United

4
But see United States v. Salimonu, 182 F.3d 63, 69 & n.2 (1st Cir.
1999)(applying abuse of discretion standard).
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States v. Brickey, 289 F.3d 1144, 1150 (9th Cir. 2002); United

States v. Gonzalez-Arimont, 268 F.3d 8, 11 (1st Cir. 2001);

United States v. Marks, 209 F.3d 577, 586 (6th Cir. 2000);

United States v. Hill, 197 F.3d 436, 441 (10th Cir. 1999).

And finally, in United States v. Doty, 51 M.J. 464, 465

(C.A.A.F. 1999), a case involving a speedy-trial claim under

R.C.M. 707, we held in that context: “The conclusion whether an

accused received a speedy trial is a legal question that is

reviewed de novo . . . [while the underlying] findings of fact

are given ‘substantial deference and will be reversed only for

clear error.’” (Citations omitted.) Thus, the remaining issue

is whether the standard of review for speedy-trial claims under

Article 10 should not also be de novo. In answer, we conclude

there is no valid reason why the standard of review for Article

10 appeals should be any different than the one uniformly

applied in other speedy-trial appeals in the military and

federal systems of justice.

Article 10 states that when a servicemember is placed in

pretrial confinement, “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 United States v.

Tibbs, 15 C.M.A. 350, 353, 35 C.M.R. 322, 325 (1965), an Article

10 case, we observed that “the touch stone for measurement of

compliance with the . . . [UCMJ] is not constant motion, but

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reasonable diligence in bringing the charges to trial. . . .

Brief periods of inactivity in an otherwise active prosecution

are not unreasonable or oppressive.” (Citations omitted.)

In Kossman, 38 M.J. at 262, we again said that whether

immediate steps have been taken under Article 10 to inform an

accused of the charges against him and, thereafter, to try him

on those charges depends on whether the Government has used

“reasonable diligence” in accomplishing those tasks. As a

result, for purposes of the issue at hand, the question becomes:

Is this “reasonable diligence” determination made by a trial

judge one that, by its nature, is so subjective and fact-

dependent that this Court is unable justly to review that

determination de novo? The answer to that is no, confirmed by

the reality that appellate courts frequently review de novo the

“reasonableness” determinations of trial judges in a variety of

legal settings. See Ornelas v. United States, 517 U.S. 690

(1996)(“reasonable suspicion” determinations made by trial

courts when assessing the constitutionality of police stops are

reviewed de novo); Sicari v. Commissioner of Internal Revenue,

136 F.3d 925 (2nd Cir. 1998)(“We review de novo the Tax Court’s

legal conclusion as to the [Commissioner’s] satisfaction of the

reasonable diligence requirement” when notifying a taxpayer of a

tax deficiency.); Whaley v. Rodriguez, 840 F.2d 1046 (2nd Cir.

1988)(de novo review of Government’s reasonableness and due

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diligence in attempting to locate a defendant for purposes of

tolling the speedy trial clock); DeWeerth v. Baldinger, 836 F.2d

103, 110 (2nd Cir. 1987)(“Where, as here, the issue is the

application of a legal standard – ‘reasonable diligence’– to a

set of facts, review is de novo.”); Maloley v. O’Brien &

Associates, Inc., 819 F.2d 1435 (8th Cir. 1987)(de novo review

of Commodity Futures Trading Commission’s determination that

investor failed to exercise reasonable diligence in discovering

fraud).

We therefore hold that 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. There is simply no valid reason why

the standard of review for these appeals should be any different

than the one applied to similar appeals under the Sixth

Amendment, the Speedy Trial Act, and R.C.M. 707.

Scope of Article 10

In reversing the military judge’s ruling dismissing the

charges, the Court of Criminal Appeals found that the “delay

between the arraignment [on July 6] and the reopening of the

Article 32, UCMJ, investigation [on August 10] . . . was not

attributable to the Government for speedy-trial purposes.”

Cooper, 56 M.J. at 811. In arriving at this conclusion, the

court reasoned that “[o]nce the arraignment occurred, the

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speedy-trial clock stopped with respect to an Article 10, UCMJ,

analysis, because the appell[ant] had been brought to trial at

that point.” Id. (emphasis added). The military judge, on the

other hand, incorporated that time period into his analysis, as

previously discussed.

In ruling as it did, the court below relied primarily on

the language of R.C.M. 707, and the fact that R.C.M. 707’s

protections clearly do not extend beyond arraignment. R.C.M.

707(a) states: “The accused shall be brought to trial within

120 days after the earlier of: (1) Preferral of charges; [or]

(2) The imposition of [pretrial] restraint. . . .” R.C.M.

707(b) states: “The accused is brought to trial . . . at the

time of arraignment. . . .” Thus, the duty imposed on the

Government by R.C.M. 707 is to arraign an accused within 120

days of preferral of charges or pretrial confinement, or face

dismissal of the charges. The duty is no more and no less, and

is satisfied once an accused is arraigned.5

The court below ruled that Article 10’s protections also

cease when an accused is arraigned. That court did not,

however, explain why the language of Article 10 -– which is

clearly different than that of R.C.M. 707 -- supports this

result. Nor did that court cite to any case where Article 10’s

5
Arraignment takes place when a military judge reads the charges to an
accused and calls upon the accused to plead. “Arraignment is complete when
the accused is called upon to plead; the entry of pleas is not part of the
arraignment.” Rule for Courts-Martial 904 discussion.
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language was so construed. This is significant, because in our

view, the plain meaning of Article 10 strongly suggests its

protections do extend beyond arraignment. See United States v.

Turkette, 452 U.S. 576, 580 (1981)(“In determining the scope of

a statute, we look first to its language.”).

Once again, Article 10 states: “When any person subject to

[the UCMJ] is placed in . . . 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 dismiss the

charges and release him.” (Emphasis added.) Thus, Article 10

does not by its express terms limit its protection to only that

period extending up to arraignment. To the contrary, it imposes

an open-ended duty on the Government and the military judge

immediately to “try” the accused, a task that is by no means

complete at arraignment when one considers the plain meaning of

“trying” a case.

To “try” a case is “to examine and resolve (a dispute) by

means of a trial”; “to examine and decide (a case) in a law

court”; or simply “to examine or investigate judicially.”

Black’s Law Dictionary 1520 (7th ed. 1999); Webster’s New World

College Dictionary 1538 (4th ed. 2000); Webster’s Third New

International Dictionary 2457 (1981). Moreover, to try a

criminal case is “to determine legally the guilt or innocence”

of a person. Webster’s New World College Dictionary, supra. In

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a criminal prosecution, however, no examination or investigation

into guilt or innocence has even begun at the time of

arraignment, because arraignment precedes the taking of any

evidence. On its face then, Article 10 seems to impose on the

Government a duty that extends beyond arraignment to at least

the taking of evidence.

Regardless, even if Article 10 was ambiguous as to its

scope, the question would still remain: Given the fact that it

does not expressly cease to apply after arraignment, why should

Article 10 be so construed? Nothing in its legislative history

compels such a result. See United States v. Desha, 23 M.J. 66,

68 (C.M.A. 1986)(“If the statutory language is unambiguous, in

the absence of ‘a clearly expressed legislative intent to the

contrary, that language must ordinarily be regarded as

conclusive.’”)(quoting Turkette, 452 U.S. at 580 (citations

omitted)).

Nor does our prior case law require such a restrictive

reading of Article 10, or even indicate that we would be so

inclined. See Birge, 52 M.J. at 211 (“[E]ven if the Government

has complied with RCM 707. . . , the Government’s failure to

proceed [thereafter] with ‘reasonable diligence’ would

constitute a violation of Article 10.”).

More importantly, though, the constitutional right to a

speedy trial is a fundamental right. Barker, 407 U.S. at 515.

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It is protected both by the Sixth Amendment and by Article 10.

Article 10, however, “imposes [on the Government] a more

stringent speedy-trial standard than that of the Sixth

Amendment.” Kossman, 38 M.J. at 259. As a result, that

baseline Sixth Amendment standard is relevant to our inquiry,

and it can be found in the Speedy Trial Act, which by its

express terms extends far beyond arraignment. See 18 U.S.C.

§3161(g)(the “period between arraignment and trial” cannot

exceed 80 days).6

Given that Article 10 protects the right to a speedy trial,

and given that it imposes a more stringent standard than the

Sixth Amendment, there is no compelling reason to construe its

words -- presumed ambiguous for these purposes -- in such a way

as to terminate its applicability at arraignment, especially

when the less stringent, Sixth Amendment standard, as

implemented by the Speedy Trial Act, extends beyond that point.

We therefore hold that 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. There are undoubtedly times when the

Government is not prepared to go forward with its case

immediately following arraignment. See Doty, 51 M.J. at 465.

6
This statutory language recognizing the difference between “arraignment” and
“trial” strengthens our view that Article 10’s plain meaning is that it
applies beyond arraignment.
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As a result, the protections of Article 10 must extend beyond

that point. Id. at 466 (Crawford, J., concurring in the

result)(recognizing that Article 10 protection extends beyond

arraignment).

Having said that, however, we hasten to emphasize that 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.”

Doty, 51 M.J. at 465-66. 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. The military judge has the power and

responsibility to force the Government to proceed with its case

if justice so requires.

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. As we have said, Article 10 provides greater

protections for persons subject to the UCMJ than does the Sixth

Amendment speedy trial right. Kossman, 38 M.J. at 259. 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

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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,” Doty, 51 M.J. at 465, Article 10 protections do not

automatically cease upon arraignment.

Applicability of Birge Factors

In Birge, 52 M.J. at 212, we stated that 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.” The

military judge did not do that in this case. We therefore

remand this case to the military judge for reconsideration in

light of Birge and this opinion.

Decision

The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is reversed, and the ruling of the military

judge dismissing the charges is set aside. The record of trial

is returned to the Judge Advocate General of the Navy for remand

to the military judge presiding over appellant’s court-martial.

The military judge will reconsider appellant’s Article 10 claim

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in light of this opinion. Thereafter, if the military judge

again dismisses the charges, Article 62 will apply.

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GIERKE, Judge (concurring):

I agree with the ultimate result in this case, i.e., a

remand to the military judge for reconsideration, using the

factors set out in United States v. Birge, 52 M.J. 209 (C.A.A.F.

1999). I also agree that the correct standard of review on the

ultimate question whether Article 10, Uniform Code of Military

Justice, 10 U.S.C. § 810 (2002), has been violated is de novo.

See United States v. Doty, 51 M.J. 464 (C.A.A.F. 1999).

However, I write separately to point out that, in my view,

de novo review of the ultimate Article 10 issue does not require

this Court to disregard the military judge’s analysis of each

stage in the prosecution of the case. We review the issue de

novo, recognizing that military judges are well situated to

understand “the realities of military practice,” and “to

evaluate the “logistical challenges of a world-wide system,”

“operational necessities,” as well as “crowded dockets,

unavailability of judges, and attorney caseloads”; and that they

“can readily determine whether the Government has been foot-

dragging on a given case, under the circumstances then and there

prevailing.” See United States v. Kossman, 38 M.J. 258, 261-62

(C.M.A. 1993).

In United States v. Hatfield, 44 M.J. 22, 24-25 (C.A.A.F

1996), this Court upheld the military judge’s analysis after he

had been reversed by the Court of Criminal Appeals, which had
United States v. Cooper, No. 02-6001/NA

substituted its own analysis and arrived at a different

conclusion regarding the reasonableness of the delay. We

concluded in Hatfield that “the military judge did not abuse his

discretion.” Id. at 25. In so concluding, we noted that “the

military judge gave due consideration to all the factors” set

out in Kossman. Id. at 24.

“Abuse of discretion” is a broad term, and in some cases it

may mean only that the military judge incorrectly applied the

law. See United States v. White, 48 M.J. 251, 257 (C.A.A.F.

1998) (military judge abuses discretion if decision was

“influenced by an erroneous view of the law”); 1 Steven

Childress & Martha Davis, Federal Standards of Review § 4.21 at

4-132 (3d ed. 1999) (abuse of discretion has “sliding contextual

meaning”); Martha Davis, A Basic Guide to Standards of Judicial

Review, 33 S.D. L. Rev. 468, 472-73 (1988), quoted in United

States v. Siroky, 44 M.J. 394, 398 n.1 (C.A.A.F. 1996)(no abuse

of discretion if decision is “legal”). Thus, in my view, our

decision in this case is not inconsistent with our previous

decisions in Hatfield, Kossman, and Doty. Accordingly, I

concur.

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