UNITED STATES, Appellee
v.
Maurice S. WILSON, Private First Class U.S. Army, Appellant
No. 13-0096
Crim. App. No. 20110146
United States Court of Appeals for the Armed Forces
Argued April 3, 2013
Decided July 11, 2013
ERDMANN, J., delivered the opinion of the court, in which RYAN and STUCKY, JJ., joined. BAKER, C.J., filed a separate dissenting opinion, in which COX, S.J., joined. COX, S.J., filed a separate dissenting opinion.
Counsel
For Appellant: Captain Brandon H. Iriye (argued); Colonel Patricia A. Ham, Lieutenant Colonel Imogene M. Jamison, and Major Richard E. Gorini (on brief).
For Appellee: Captain Kenneth W. Borgnino (argued); Lieutenant Colonel Amber J. Roach and Major Katherine S. Gowel (on brief); Major Robert A. Rodrigues.
Military Judge: Andrew J. Glass
This opinion is subject to revision before final publication. United States v. Wilson, No. 13-0096/AR
Judge ERDMANN delivered the opinion of the court.
A military judge sitting as a general court-martial
convicted Private First Class Maurice S. Wilson of various
offenses related to drug possession and distribution, as well as
failure to obey a lawful order, in violation of Articles 92 and
112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892,
912a (2006). The military judge sentenced Wilson to reduction
to E-1, confinement for forty months, and a bad-conduct
discharge. Pursuant to a pretrial agreement, the convening
authority approved twenty-one months confinement and the balance
of the sentence. Wilson was credited with 174 days of
confinement credit. The United States Army Court of Criminal
Appeals summarily affirmed the findings and sentence. United
States v. Wilson, No. ARMY 20110146 (A. Ct. Crim. App. Aug. 28,
2012).
“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.’” United States v. Cossio,
64 M.J. 254, 255 (C.A.A.F. 2007). We granted review in this
case to determine whether Wilson was denied his speedy trial
rights under Article 10.1 We hold that Wilson’s Article 10 right
1 We granted review of the following issue:
2 United States v. Wilson, No. 13-0096/AR
to a speedy trial was not violated and affirm the Army Court of
Criminal Appeals.
Background
a. Trial Timeline
On August 17, 2010, a confidential source reported that
Wilson was selling drugs out of his barracks room on Fort Drum,
New York. A search authorization was obtained and drugs were
discovered in Wilson’s room. Later that day, the Government
placed Wilson in pretrial confinement at a medium security
civilian prison in Lowville, New York. Wilson waived pretrial
confinement review on August 22, 2010.
Thirty-six days after being placed in confinement, on
September 22, 2010, the Government preferred charges against
Wilson. On October 1, the special court-martial convening
authority (SCMCA) appointed an Article 32, UCMJ, investigating
officer. On October 21, Wilson offered to plead guilty to
certain charges and on November 10 he submitted an amended offer
to plead guilty. The convening authority granted testimonial
immunity to four potential witnesses on November 16, 2010. The
Government rejected Wilson’s amended offer to plead guilty on
November 30, 2010. On December 6, the SCMCA appointed a new
Whether Appellant was denied his right to a speedy trial in violation of Article 10, UCMJ, when the Government failed to act with reasonable diligence in bringing him to trial.
United States v. Wilson, 72 M.J. 7 (C.A.A.F. 2012) (order granting review).
3 United States v. Wilson, No. 13-0096/AR
Article 32, UCMJ, investigating officer. Wilson filed a demand
for a speedy trial on December 14, 2010.
The newly appointed Article 32, UCMJ, investigating officer
completed his investigation on December 16, 2010. The staff
judge advocate’s pretrial advice was prepared on December 22,
2010, and charges were referred the same day. Wilson was
arraigned on January 4, 2011, 140 days after he was placed in
confinement. The military judge set the trial date for February
7, 2011, which resulted in a total pretrial confinement period
of 174 days.
b. Wilson’s Motion to Dismiss
On the date of his arraignment, Wilson filed a “Motion To
Dismiss For Speedy Trial Violation.” The military judge
convened Article 39(a), UCMJ, sessions on January 7, 18, and 25,
2011, to hear testimony and arguments on the motion. The
defense argued that the Government’s delays violated Wilson’s
Fifth and Sixth Amendment rights providing for due process and a
speedy trial as well as the guarantees of Article 10 and Rule
for Courts-Martial (R.C.M.) 707. As Wilson has limited his
appeal before this court to his Article 10 claims, we need not
discuss the constitutional and R.C.M. 707 arguments he made
below.
With respect to his Article 10 claim, Wilson relied on the
four-part Barker test which this court uses to evaluate Article
4 United States v. Wilson, No. 13-0096/AR
10 speedy trial claims. See, e.g., United States v. Mizgala, 61
M.J. 122, 129 (C.A.A.F. 2005) (citing Barker v. Wingo, 407 U.S.
514, 530 (1972)). Wilson argued that “the Government had not
exercised reasonable diligence in bringing the charges to
trial.” He specifically noted the following delays: thirty-six
days between confinement and preferral of charges; fifty-five
days between preferral and the convening authority’s grants of
immunity to other actors; twenty-two days between the grants of
immunity and appointment of an investigating officer; and twenty
days between the submission of the second offer to plead guilty
and its rejection by the convening authority.
Wilson argued that he was “aware of no good reason for
delaying this case so long.” He also noted his December 14,
demand for a speedy trial and argued that he was prejudiced by
the delay because he was confined in an oppressive environment
where he was the only African American among twenty other
inmates, some white supremacists.
In urging the military judge to deny the motion, the
Government provided considerable detail about its pretrial
activities, including: the need for significant investigation
by Criminal Investigative Division (CID) agents; the deployment
of Wilson’s battalion to training activities from September 22
through October 7; the Government’s handling of the cases of
other individuals implicated in the matter; the departure of the
5 United States v. Wilson, No. 13-0096/AR
3rd Brigade Combat Team to Fort Polk, Louisiana, from November 1
to November 24; the ensuing Thanksgiving holiday; and the
Article 32 investigation. The Government argued that “the
primary reasons for the length of time between the commencement
of pretrial confinement and the arraignment of the accused [are]
completion of the investigation and the unit’s training in
preparation for the upcoming deployment to Afghanistan.”
The military judge issued detailed findings of fact and
conclusions of law denying the motion to dismiss, noting that
Article 10 is a “‘more stringent’ or ‘more exacting’” standard
than the Sixth Amendment. He then conducted the four-part
Barker analysis and found it weighed in favor of the Government
because: (1) the unavailability of the military judge and
delays caused by the defense contributed to the overall delays;
(2) despite several issues with the Government’s handling of the
case (slow Article 32 investigation, inattention to time,
unreasonably lengthy plea negotiations, and an unusual six-day
delay in taking action on Wilson’s second offer to plead
guilty), the Government exercised reasonable diligence in
processing Wilson’s case; (3) Wilson made a speedy trial demand
which weighed narrowly in his favor; and (4) Wilson’s claim that
he was prejudiced based on the conditions of his confinement
failed as he simply experienced “normal incidents of
6 United States v. Wilson, No. 13-0096/AR
confinement.” The military judge found that, on balance, the
Government acted with reasonable diligence.
Discussion
On appeal to this court Wilson claims he was denied his
right to a speedy trial under Article 10 because the Government
failed to uphold its basic responsibility to exercise reasonable
diligence in bringing him to trial in a timely manner. Wilson
argues that the Barker factors weigh in his favor because the
defense was not responsible for the delays, he filed a demand
for a speedy trial, and he suffered under oppressive conditions
of confinement and experienced anxiety and concern.
The Government responds that while the delay might be
facially unreasonable, the time directly attributable to the
Government encompasses reasonable actions to move Wilson’s case
to trial. Additionally, the Government suggests that although
Wilson made a demand for a speedy trial, defense activity both
before and after the demand “belie his claim” that he actually
sought a speedy trial. Finally, the Government contends that
Wilson cannot establish prejudice. The Government argues that
in weighing the Barker factors, Wilson has failed to establish a
violation of Article 10.
“This court reviews de novo the question of whether
[Wilson] was denied his right to a speedy trial under Article
10, UCMJ, as a matter of law and we are similarly bound by the
7 United States v. Wilson, No. 13-0096/AR
facts as found by the military judge unless those facts are
clearly erroneous.” Cossio, 64 M.J. at 256 (citing Mizgala, 61
M.J. at 127; United States v. Cooper, 58 M.J. 54, 58-59
(C.A.A.F. 2003)).
“[T]he constitutional right to a speedy trial is a
fundamental right. It is protected both by the Sixth Amendment
and Article 10.” Cooper, 58 M.J. at 60 (citation omitted).
“Article 10, however, ‘imposes [on the Government] a more
stringent speedy-trial standard than that of the Sixth
Amendment.’” Id. (alteration in original) (quoting United
States v. Kossman, 38 M.J. 258, 259 (C.M.A. 1993)).2 We have
2 We have repeatedly stressed that Article 10 is a “more stringent” standard than the Sixth Amendment. The Court of Military Appeals explained this standard in United States v. Burton, 21 C.M.A. 112, 117, 44 C.M.R. 166, 171 (1971) (citation omitted), overruled by Kossman, 38 M.J. at 261, and United States v. McCallister, 27 M.J. 138, 141 (C.M.A. 1988):
An obvious question is whether the Sixth Amendment requires a more prompt trial than does Article 10. Many decisions of the Article III courts applying the constitutional speedy trial guarantee deal with delays of several years between indictment and trial, typically with the defendant free on bail. These decisions provide little assistance in deciding whether immediate steps have been taken to try an accused member of the armed forces who has been confined before trial. We assume for present purposes that the requirements of Article 10 are more rigorous.
As Senior Judge Cox notes in his dissent, United States v. Wilson, 72 M.J. __, __ (2) (C.A.A.F. 2013) (Cox, S.J., dissenting), one of the speedy trial mandates set forth in Burton was later reversed by this court, however Article 10’s “more rigorous” standard, as compared to the years-long delays reviewed in Article III courts, remains relevant. While the
8 United States v. Wilson, No. 13-0096/AR
“consistently stressed the significant role Article 10 plays
when servicemembers are confined prior to trial.” Mizgala, 61
M.J. at 124.
“The standard of diligence under which we review claims of
a denial of speedy trial under Article 10 ‘is not constant
motion, but reasonable diligence in bringing the charges to
trial.’”3 Id. at 127 (citations omitted). “Short periods of
inactivity are not fatal to an otherwise active prosecution.”
Id. (citations omitted). “[O]ur framework to determine whether
the Government proceeded with reasonable diligence includes
balancing the following four 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
federal circuits seem to require a delay approaching a year to review Sixth Amendment speedy trial claims, see Doggett v. United States, 505 U.S. 647, 652 n.1 (1992), a much shorter delay will trigger the full Barker analysis in an Article 10 case. Indeed, in Wilson’s case, even the Government concedes that the pretrial delay of 174 days “would likely constitute a facially unreasonable delay.” Thus, while Chief Judge Baker’s dissent suggests that this court has viewed the “more stringent” Article 10 standard as essentially the same as the Sixth Amendment standard, Wilson, 72 M.J. at __ (2) (Baker, C.J., dissenting), this very case is evidence of the application of a more stringent standard for speedy trials in the military. 3 As discussed above, see supra p.4, Wilson has not appealed the military judge’s ruling with respect to his R.C.M. 707 claim. Given that the court has repeatedly held that “the protections of Article 10 are broader than R.C.M. 707,” United States v. Tippit, 65 M.J. 69, 81 (C.A.A.F. 2007), we do not evaluate the claim under the tenets of R.C.M. 707. Again, “[t]he test under Article 10 is whether the government has acted with reasonable diligence.” Id.
9 United States v. Wilson, No. 13-0096/AR
appellant.” Id. at 129 (citing Barker, 407 U.S. at 530). The
Supreme Court explained:
We regard none of the four factors . . . as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process.
Barker, 407 U.S. at 533. “[W]e remain mindful that we are
looking at the proceeding as whole and not mere speed: ‘The
essential ingredient is orderly expedition and not mere speed.’”
Mizgala, 61 M.J. at 129 (quoting United States v. Mason, 21
C.M.A. 389, 393, 45 C.M.R. 163, 167 (C.M.A. 1972)).
a. Length of the Delay
“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 factors that go into the balance.” Cossio,
64 M.J. at 257 (citation and internal quotation marks omitted).
The military judge adopted a timeline stipulated to by the
parties as an essential finding of fact. From this timeline the
military judge found that 140 days elapsed from the time Wilson
was placed in pretrial confinement to his arraignment and, by
10 United States v. Wilson, No. 13-0096/AR
the date of his trial, Wilson would have been confined for a
total of 174 days.4
Although the military judge did not explicitly hold that
the delay was sufficient to trigger the full Barker analysis, he
went on to conduct the full four-part analysis, which indicates
that he made such a holding. In its brief the Government
concedes that the 174-day delay “would likely constitute a
facially unreasonable delay.” We agree that the 174-day period
in Wilson’s case is sufficient to trigger the full Barker
analysis under the circumstances of this case. See Mizgala, 61
M.J. at 127.
b. Reasons for the Delay
“Closely related to length of delay is the reason the
[G]overnment assigns to justify the delay. Here, too, different
weights should be assigned to different reasons.” Barker, 407
U.S. at 531. For example:
A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the [G]overnment. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the [G]overnment rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.
4 The military judge prospectively computed this figure based on the scheduled date of trial, February 7, 2011, which was the actual date the trial was held.
11 United States v. Wilson, No. 13-0096/AR
Id. “Delays attributable to the defendant do not weigh in favor
of a Sixth Amendment violation.” United States v. Toombs, 574
F.3d 1262, 1274 (10th Cir. 2009).
“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.” United States v. Thompson, 68 M.J. 308, 313
(C.A.A.F. 2010). We have recognized, however, that “there will
be occasions when mission requirements may make it impossible to
process cases as expeditiously as we might ideally wish.”
United States v. Johnson, 17 M.J. 255, 261 (C.M.A. 1984).
In his ruling on the motion, the military judge ruled that
he was responsible for sixteen days of the 174-day delay and the
defense was responsible for forty-three days. The delay
attributable to the Government is therefore 115 days. The
military judge went on to set forth three specific time periods
which warranted “individual discussion.” The first period of
concern to the military judge was from October 1 to 23, 2010,
which reflects the initial period of the first Article 32
investigating officer’s tenure -- a period when no action was
taken to complete the investigation. The military judge found
12 United States v. Wilson, No. 13-0096/AR
this delay to be “improper and to reflect a lack of proper
diligence in a case involving a confined accused.”
The second period of delay was from October 22 to November
10, 2010. During this period the parties were “ostensibly in
discussions . . . regarding a potential offer to plead guilty.”
However, the military judge found that there were “insufficient
facts before the Court to define what precipitated these lengthy
negotiations, or whether the lengthy time period was because of
Defense or Government delay,” so “based on the Government’s
burden to provide adequate facts to this Court, that time period
was not justified.”
The final period of delay identified by the military judge
was November 10 to 30, 2010. This period commenced with the
submission of Wilson’s Offer to Plead Guilty and terminated with
the convening authority’s rejection of the offer. While the
military judge noted that the unit’s chain of command was
deployed during that period, the length of delay was “unusual
and unjustified.”
Despite his concerns with these periods of delay, the
military judge concluded his analysis of this factor by holding:
Although the Court is troubled by certain time periods in this case, this Court is required to examine the case as a whole in determining whether an Article 10, UCMJ, violation occurred. The Court finds that this case involved: resolution of complicated immunity issues for several Soldiers implicated in the Accused’s charges, testing of seized drugs at the USACIL laboratory, a unit deploying for thirty days to
13 United States v. Wilson, No. 13-0096/AR
JRTC, as well as apparently complicated pretrial negotiations. The Government’s actions, while not “constant motion,” do constitute reasonable diligence. I find that this factor weighs in favor of the Government.
As in Mizgala, 61 M.J. at 129, we share the military
judge’s concern that there appear to be “several periods during
which the Government seems to have been in a waiting posture.”
The Government is tasked with handling cases with “reasonable
diligence,” id., and the inattention to timeliness in Wilson’s
case is troubling. However, the stipulated timeline, adopted by
the military judge as a finding of fact, provides a factual
explanation for much of the delay attributable to the
Government.5 The timeline provides context and explanations
which reflect reasonable pretrial decisions and activities
including potential immunity for other actors, the unit’s
pending deployment to Afghanistan, drug testing by USACIL, and
“complicated” pretrial negotiations.
5 The parties stipulated to a comprehensive forty-nine point timeline which documents the dates at which the relevant actions were taken. As well as documenting the dates of significant actions in the case, the timeline also documented the significant dates relating to: the CID investigation into both Wilson’s actions and the actions of other soldiers related to the drug offenses; the deployment of Wilson’s battalion; grants of immunity and courts-martial of potential witnesses; plea negotiations and discussion between the defense and Government; and the period it took for United States Army Criminal Investigation Laboratory (USACIL) to process the evidence. This timeline was very useful in our analysis of the Article 10 claim.
14 United States v. Wilson, No. 13-0096/AR
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. There is no evidence indicating that the Government was
engaged in a “deliberate attempt to delay the trial in order to
hamper the defense,” which would weigh heavily against the
Government. Johnson, 17 M.J. at 259; Barker, 407 U.S. at 531.
c. Speedy Trial Demand
“The defendant’s assertion of his speedy trial right . . .
is entitled to strong evidentiary weight in determining whether
the defendant is deprived of the right.” Johnson, 17 M.J. at
259. Wilson made a demand for a speedy trial on December 14,
2010, at which point he had been in pretrial confinement for 119
days. Noting that the demand for speedy trial did not occur
until fourteen days after Wilson’s offer to plead guilty was
denied, the military judge found that this factor narrowly
favored the defense. We agree with the military judge that the
timing of Wilson’s demand for a speedy trial affords it only
slight weight in his favor.
d. Prejudice
“Prejudice . . . should be assessed in the light of the
interests of defendants which the speedy trial right was
designed to protect.” Mizgala, 61 M.J. at 129 (citation and
internal quotation marks omitted). These interests are: “(i)
15 United States v. Wilson, No. 13-0096/AR
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.” Id. (citation
and internal quotation marks omitted). “Of 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.” Johnson, 17 M.J. at 259.
Before this court, Wilson’s argument on prejudice focuses
on the first and second factors of the prejudice test --
oppressive pretrial confinement and the anxiety and concern
suffered by the accused. Wilson has not argued that his defense
was impaired in any way based on the pretrial delay. Because
impairment of the defense is the “most serious” form of
prejudice, see id., this portion of the prejudice analysis
weighs in favor of the Government.
As to the claim of oppressive confinement, Wilson alleges
that he had to endure a racially tense environment at the
Lowville jail. At the Article 39(a) hearing, Wilson described
his life in confinement prior to the filing of the motion.
Wilson testified that he was assigned to a cell by himself and
he was locked down in the cell for eight hours at night. During
the day he spent his time in a large bay area with approximately
twenty other prisoners. There were three or four other military
prisoners but Wilson was the only African-American on the bay.
16 United States v. Wilson, No. 13-0096/AR
Wilson testified that some of civilian prisoners in the bay
directed racial slurs at him and had tattoos of symbols he
considered racist. He described a typical experience as
follows: “I would be at a table or something and they would
come over, like, just walk past me, like ‘f---ing n---ers in
here,’ and stuff of that sort, sir, or a couple of times they
made inferences to, like, ‘old slavery times,’ and stuff of that
sort.” Wilson indicated that some people were “playing” but
others were “more serious.”
While we do not condone any type of racially insensitive
behavior, it is instructive to our analysis as to the severity
of the complained of conduct that Wilson 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. Thompson,
68 M.J. at 313. Nor did Wilson seek any pretrial confinement
remedies for violations of R.C.M. 305,6 either pretrial or in his
clemency request to the convening authority.7 Accordingly we
6 R.C.M. 305 sets forth the rules applicable when an accused is subject to pretrial confinement. R.C.M. 305(k) allows the military judge to award additional sentence credit based on conduct by confinement officials during pretrial confinement. See United States v. Adcock, 65 M.J. 18, 24 (C.A.A.F. 2007). 7 See Thompson, 68 M.J. at 313 (“With respect to prejudice from the conditions of her incarceration, we note that although the
17 United States v. Wilson, No. 13-0096/AR
conclude that Wilson’s conditions of confinement did not
constitute “oppressive pretrial confinement” in an Article 10
context.
In support of his claim that he suffered from anxiety and
concern, Wilson argues that he was not informed of his charges
until he had spent thirty-seven days in confinement and also
that he was not arraigned until twenty-two days after his demand
for a speedy trial. Here, we are concerned not with the normal
anxiety and concern experienced by an individual in pretrial
confinement, but rather with some degree of particularized
anxiety and concern greater than the normal anxiety and concern
associated with pretrial confinement. See, e.g., Cossio, 64
M.J. at 257 (accepting military judge’s finding that there was
“‘no evidence’” that the defendant’s “‘anxiety and concern’ has
exceeded the norm’”); United States v. Larson, 627 F.3d 1198,
1210 (10th Cir. 2010) (holding that defendant’s “generalized and
conclusory references to the anxiety and distress that
purportedly are intrinsic to incarceration are not sufficient to
demonstrate particularized prejudice”). When asked at the
record establishes negative aspects of her confinement conditions, a number of considerations weigh against concluding that the conditions were ‘oppressive’ under Article 10. First, Appellant did not raise any kind of formal or informal complaint about her confinement conditions or otherwise request a change in conditions during the period at issue . . . .”) (citation omitted).
18 United States v. Wilson, No. 13-0096/AR
Article 39(a) hearing how his confinement under these conditions
made him feel, Wilson responded:
I feel very depressed, sir, and agitated, and I’m kind of nervous at times; then at times, I’m not. It’s just -- it just goes with the day. I haven’t had a happy day in there. I know it’s jail, but I haven’t had a decent day in there since I’ve been in there, sir.
We agree with the military judge’s conclusion that any anxiety
or concern Wilson suffered was the result of normal incidents of
confinement.
Balancing the Barker Factors
“Once it is determined that balancing is necessary, none of
the four factors has any talismanic power. Rather, ‘we must
still weigh all the factors collectively before deciding whether
a defendant’s right to a speedy trial has been violated.’”
United States v. Dowdell, 595 F.3d 50, 60 (1st Cir. 2010)
(quoting United States v. Colombo, 852 F.2d 19, 23 (1st Cir.
1988)); Barker, 407 U.S. at 533.
The record reflects 115 days of delay attributable to the
Government. While the Government explained much of the delay,
there were several periods of unexplained or unjustified delay.
Those delays appear to be the result of inattention and neglect
and although they weigh against the Government, they do not
weigh as heavily against the Government as they would if there
was a deliberate effort to delay the case. While Wilson filed a
demand for a speedy trial, he waited until he had been confined
19 United States v. Wilson, No. 13-0096/AR
for 119 days to do so. Finally, Wilson 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. Based on
the military judge’s findings of fact and after balancing the
Barker factors de novo, we conclude that Wilson’s Article 10
right to a speedy trial was not violated.
Decision
The decision of the United States Army Court of Criminal
Appeals is affirmed.
20 United States v. Wilson, No. 13-0096/AR
BAKER, Chief Judge, which COX, Senior Judge, joins
(dissenting):
I respectfully dissent for two reasons. First, there
remain significant ambiguities and gaps in this Court’s legal
framework for addressing Article 10, UCMJ, 10 U.S.C. § 810
(2006), claims. In light of the consolidation of military
detention facilities and the corresponding practice of detaining
military members in civilian facilities before trial --
facilities that may or may not adhere to Department of Defense
standards -- reducing the gaps in our legal framework takes on
added urgency and importance. Thus, clarifying the
jurisprudence surrounding speedy trial rights would not only
determine the outcome of this case, but that of future cases.
Second, the military judge and the majority conclude that
Wilson did not suffer oppressive pretrial incarceration when he
was subject to repeated racial taunts and slurs while confined
as the sole African American in a local jail with nineteen other
persons, many of them self-avowed “skinheads” and neo-Nazis.
The military judge found that this was a “normal incident[] of
confinement.” The majority concludes that this was “racially
insensitive,” but not prejudicial. I disagree across the board.
Racism and implied threats are not normal incidents of military
confinement. They are the mark of oppressive and prejudicial
pretrial military confinement and this Court should say so. United States v. Wilson, No. 13-0096/AR
I.
This Court reviews Article 10, UCMJ, speedy trial claims
using the four-factor framework the Supreme Court developed to
determine whether Sixth Amendment speedy trial rights were
violated. United States v. Mizgala, 61 M.J. 122, 129 (adopting
the four-part test in Barker v. Wingo, 407 U.S. 514, 530
(1972)). However, this Court has further held that “Article 10
. . . imposes [on the Government] a more stringent speedy-trial
standard than that of the Sixth Amendment.” United States v.
Kossman, 38 M.J. 258, 259 (C.M.A. 1993). But the Court has
never explained how “a more stringent speedy-trial standard”
differs from the Sixth Amendment’s speedy trial standard under
Barker. To the contrary, the Court appears to have applied the
Barker factors without deviation or distinction from Sixth
Amendment precedent.
Further, this Court has consistently stated that the
government must proceed with “reasonable diligence.” See, e.g.,
Mizgala, 61 M.J. at 127 (quoting United States v. Tibbs, 15
C.M.A. 350, 353, 35 C.M.R. 322, 325 (1965) (internal quotation
marks omitted). However, the Court has not articulated how and
whether this standard is different than the Barker standard.
And it has treated this standard as a determinative factor, when
in fact it should only apply to the second of the Barker
factors. Moreover, in this case, the military judge found that
the Government did not move with reasonable diligence during
several notable instances. For example, he found that “the
[t]imeline reflects an Investigating Officer who is not
committed to his duties, as well as a Trial Counsel, a Chief of
Justice, and Appointing Authority who are inattentive to the
timely processing of the Article 32 Investigation.” Given these
findings, it is not clear to me why it is not an abuse of
discretion for a military judge to nonetheless conclude that the
Government’s actions, as a whole, “reflect[ed] reasonable
diligence.”
Finally, if “reasonable diligence” is the standard and
Article 10, UCMJ, is distinct from Rule for Courts-Martial
(R.C.M.) 707’s 120-day speedy trial threshold, it remains
unclear and unexplained why the military judge and this Court in
this and other cases spend so much time dissecting the number of
days that are attributable to each party and why all the parties
treat the 120-day threshold as critical.1 If reasonable
diligence is the standard based on some overall assessment of
progress, it should not matter just how many days are
attributable to each party.
1 Thus, while the majority is correct that Appellant has not raised the R.C.M. 707 issue before this Court, the analysis below as well as by this Court begs the question as to why so much focus is placed on counting attributable days using R.C.M. 707 criteria. 3 United States v. Wilson, No. 13-0096/AR
In my view, this case falls squarely within the gap that
exists between the Sixth Amendment and whatever it means to have
a heightened standard of review for the purposes of Article 10,
UCMJ. For that reason, I respectfully dissent.
II.
I also dissent because I disagree with the majority’s
prejudice analysis.
The military judge found that Wilson was confined in “a
racially tense environment,” which was nonetheless reflective of
“the normal incidents of confinement” and thus not “oppressive
pretrial incarceration.” This conclusion reflects an abuse of
discretion.
The facts reflect more than a racially tense environment.
Wilson gave extensive testimony about his prison experience as
the only African American confined with nineteen other inmates,
many of whom were self-avowed “skinheads” who displayed swastika
tattoos and other “white power” symbols. Those inmates called
Wilson “nigger” and “monkey,” and referenced “old slavery
times.” While Wilson did not testify that he feared physical
violence, he did complain to his lawyer and to a civilian
corrections officer. Most significantly, he requested to be
transferred to protective custody. When told that protective
custody was unavailable, he requested to be transferred to
solitary confinement. That request was denied.
Such facts do not constitute normal incidents of military
pretrial confinement. They represent oppressive pretrial
confinement. Nonetheless, the majority affirms the military
judge’s conclusions, stating that what occurred is “racially
insensitive,” but not oppressive confinement. I disagree: the
facts suggest much more than mere insensitivity. Moreover, the
majority’s prejudice analysis incorrectly hinges on the fact
that Wilson did not complain to his chain of command and did not
seek Article 13, UCMJ, 10 U.S.C. § 813 (2006), sentencing
credit.
My response is twofold. First, the record is unclear
whether Wilson’s command met its obligation to visit him in
confinement. At trial, Wilson said that his chain of command
visited him three times during the early portion of his pretrial
confinement, but did not continue to visit him in the last few
months of his confinement. The military judge’s findings are
unclear on this point. The findings refer to “a chain of
command which has not visited him in compliance with the Fort
Drum regulation.” However, this statement appears in a sentence
listing the “issues of alleged prejudice stemming from the
delay” that “[t]he Accused points to.” Thus, the findings leave
this “fact” unresolved. However, it is noteworthy that the
stipulated timeline makes no reference to command visits and
neither do the Government’s filings with the military judge.
Most significantly, it is uncontested that Wilson requested
placement in solitary confinement to escape his conditions.
The majority further points to the absence of claims under
R.C.M. 305 and Article 13, UCMJ, to support the conclusion that
Wilson’s conditions were not “oppressive” under Article 10,
UCMJ. This argument presumes that the ordinary instinct for
seeking relief from a threatening racist environment is to seek
sentencing credit rather than immediate escape from one’s
environment. A lawyer might think like that. But it is
unreasonable to assume that an ordinary defendant would.
As a criminal appellate court, this Court must often
subscribe to the legal fiction that lawyer and defendant are one
and the same entity. This legal fiction, however necessary in
most instances of our jurisprudence, must occasionally give way
to common sense when conflating the two actors unfairly ascribes
to the defendant pretrial actions or omissions that do not
accurately reflect the defendant’s own efforts to advance his
cause.2
This is an instance where the legal fiction is not apt.
Here, Wilson sought placement in solitary confinement and
complained to civilian authorities about his treatment by the
2 In contrast, in many courtroom settings, a defendant and his lawyer are properly conceived as one entity because failures of a lawyer at trial can generally be remedied by ineffective assistance of counsel claims. 6 United States v. Wilson, No. 13-0096/AR
other inmates. To me, this is enough indication that Wilson
believed that racially motivated violence against him was highly
likely -- and that his pretrial confinement conditions were
oppressive under military standards. The absence of Article 13,
UCMJ, and R.C.M. 305 claims has less to do with whether Wilson’s
confinement was “oppressive” than the quality of his lawyer’s
decision making. In addition, as the majority notes, raising
claims under Article 13, UCMJ, and R.C.M. 305 are not necessary
components of an Article 10, UCMJ, claim.
It is rare for this Court to find a speedy trial violation.
In my view, this case meets the standard. “Prejudice” can arise
from oppressive pretrial confinement. Barker, 407 U.S. at 532.
While Wilson’s confinement did not violate the Sixth Amendment’s
speedy trial standard, it did violate Article 10’s standard for
pretrial military confinement.
For these reasons, I respectfully dissent.
Cox, Senior Judge, (dissenting):
I join Chief Judge Baker’s dissent. However, I do not
believe he has gone far enough in attempting to settle what he
describes as the Court never having “explained how ‘a more
stringent speedy-trial standard’ [under Article 10, Uniform Code
of Military Justice (UCMJ), 10 U.S.C. § 810 (2006),] differs
from the Sixth Amendment’s speedy trial standard under Barker
[v. Wingo, 407 U.S. 514 (1972)].” I would simply hold that Rule
for Courts-Martial (R.C.M.) 707 creates a “more stringent speedy
trial standard” for meeting the “reasonable diligence” factor.1
United States v. Cossio, 64 M.J. 254, 256 (C.A.A.F. 2007).
I am perplexed, if not totally confused, as to how any
Article 10, UCMJ, appeal can be litigated without reference to
or analysis of R.C.M. 707. Certainly it is understandable why
Appellant might have staked the outcome of his case on the
intolerable conditions of pretrial confinement, as described by
the Chief Judge in his dissent, and the lack of “immediate
steps” to either try him or dismiss the charges. But the more
critical question in this case to me is whether or not the
1 I do not know how I can make my position clearer. If R.C.M. 707 is violated, then the Government as a matter of law has not taken the “immediate steps” required by Article 10, UCMJ. For me, there is a clear relationship between R.C.M. 707 and the concept of “reasonable diligence.” However, Article 10 can be violated even if R.C.M. 707 has been followed. That is why I join Chief Judge Baker. But I also am of the opinion that the Government did not meet the speedy trial rule set forth in R.C.M. 707. United States v. Wilson, No. 13-0096/AR
Government proceeded with “reasonable diligence.” And the two
issues, intolerable confinement and delay, are certainly
interrelated.
In United States v. Kossman, 38 M.J. 258, 261 (C.M.A.
1993), this Court overruled, notwithstanding strong dissents of
two of the judges, United States v. Burton, 21 C.M.A. 112, 118,
44 C.M.R. 166, 172 (1971), a case in which this Court had
established a rebuttable presumption that delay was unreasonable
if it exceeded three months. The rationale for overruling
Burton was that the landscape had changed in the twenty-plus
years since Burton was decided and that the President had
created a speedy trial rule that answered the question as to how
much time was reasonable for the government to bring an accused
to trial. Kossman, 38 M.J. at 260. Thus we now have a rule
setting forth what would be the ordinary standard for
“reasonable diligence.” However, we noted in Kossman that
neither the President nor this Court could provide for a rule
which avoided the congressional mandate set forth in Article 10.
Id. at 260-61. Thus, there may be circumstances where a
military accused is brought to trial within 120 days of the
preferral of charges (R.C.M. 707(a)(1)) or the imposition of
restraint (R.C.M. 707(a)(2)), yet the mandate to take “immediate
steps” to “try him or to dismiss the charges and release him”
may have been violated. Article 10, UCMJ. And while I agree
United States v. Wilson, No. 13-0096/AR
with Chief Judge Baker that Article 10, UCMJ, was violated in
this case for the reasons he sets forth, I would have been just
as happy to conclude that Article 10, UCMJ, was violated because
R.C.M. 707 was also violated.
On Day One every person knows when Day 120 is. As a matter
of law, if the government does not bring an accused to trial
within 120 days, then it must dismiss the charges and release
the accused. R.C.M. 707(a), (d). That is a presidential
executive order that sets a standard for “reasonable diligence.”
The President provided reasonable alternatives to dismissal of
charges with prejudice, i.e., release the accused from pretrial
confinement or dismiss the charges with or without prejudice.
R.C.M. 707(b)(3)(B), (d)(1). Granted, there are circumstances
where an accused cannot be brought to trial within the 120 days
and the President has provided for those days to be excluded
from the count. R.C.M. 707(c).
I would attribute no delay to the defense unless the
defense requests the delay or engages in some sharp practice
that causes a delay with the view of triggering the speedy trial
rule. I would attribute no delay to the absence of a military
judge unless it is occasioned by military exigencies or
circumstances which are predetermined and made a matter of
record at the time they take place and notice is given to the
accused so that he can be heard on the question of delay at that
time.
The Sixth Amendment provides no remedy for violation of the
right to a speedy trial. Article 10, UCMJ, R.C.M. 707, and the
Speedy Trial Act of 1974, Pub. L. No. 93-619, 88 Stat. 2076,
2079-80 (codified as amended at 18 U.S.C. § 3162), do provide
for remedies. Appellate courts should not be on a search and
rescue mission to save the government from delay regardless. I
recognize that there are unusual cases (such as death penalty
cases) where it is impossible to get the case to trial in 120
days, but those exceptions can be made through a contemporaneous
motion setting forth the reason for the delay and giving the
accused an opportunity to be heard as to why that is a frivolous
or unworthy reason for delay.2 Our military justice system under
the UCMJ is now over sixty-two years old. It is ridiculous for
military judges to have to look backwards and try to save the
government from its lack of attention to the “immediate steps”
Congress mandated that it take to get a military accused either
to trial or out of confinement.
2 I recognize that we do not have standing military courts- martial where motions for continuances can be filed and heard but there are avenues available to both the government and the accused to get these matters on the record, such as a motion to the convening authority to either release the accused or bring him to trial or a motion to the government to delay the trial while a plea bargain is being negotiated. My point is that these should be made a matter of contemporaneous importance not a recreation some 179 days down the road. 4