                       UNITED STATES, Appellee

                                    v.

                    Jose A. COSSIO, Airman Basic
                      U.S. Air Force, Appellant

                              No. 06-6005

                     CCA Misc. Dkt. No. 2006-02

       United States Court of Appeals for the Armed Forces

                       Argued October 24, 2006

                       Decided January 10, 2007

ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and BAKER, J., joined.


STUCKY and RYAN, JJ., did not participate.


                                 Counsel

For Appellant: Captain John S. Fredland (argued); Lieutenant
Colonel Mark R. Strickland.

For Appellee: Captain Donna S. Rueppell (argued); Colonel
Gerald R. Bruce, Lieutenant Colonel Robert V. Combs, and Major
Kimani R. Eason.

Military Judge:   William A. Kurlander Jr.


       This opinion is subject to revision before final publication.
United States v. Cossio, No. 06-6005/AF

     Judge ERDMANN delivered the opinion of the court.

     Airman Basic Jose A. Cossio was charged with attempting to

violate a lawful general regulation, disrespect toward a

superior commissioned officer, willful disobedience of a lawful

order, wrongfully creating and maintaining a false official web

page which solicited computer identifications, and wrongfully

pretending to be an employee acting under the authority of the

United States Air Force in violation of Articles 80, 89, 92, and

134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 880,

889, 892, 934 (2000).   Prior to trial the military judge granted

Cossio’s motion to dismiss all charges with prejudice based on

the denial of Cossio’s speedy trial rights under Article 10,

UCMJ, 10 U.S.C. § 810 (2000).

     The Government appealed this ruling pursuant to Article 62,

UCMJ, 10 U.S.C. § 862 (2000).   The United States Air Force Court

of Criminal Appeals granted the Government’s appeal and set

aside the military judge’s dismissal.   United States v. Cossio,

Misc. Dkt. 2006-02, 2006 CCA LEXIS 128, 2006 WL 1540671 (A.F.

Ct. Crim. App. May 10, 2006).   We granted Cossio’s petition to

determine whether he had been denied his Article 10, UCMJ, right

to a speedy trial.1


1
  On September 19, 2006, we granted review of the following
issue:

          WHETHER THE MILITARY JUDGE ERRED IN GRANTING
          APPELLANT’S MOTION TO DISMISS BASED ON A

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United States v. Cossio, No. 06-6005/AF

     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.”   Cossio claims that, in

light of his demand for a speedy trial and the Government’s lack

of due diligence in bringing him to trial after he was confined,

the military judge correctly ruled that he had been denied his

Article 10, UCMJ, right to a speedy trial.   He asks that we set

aside the decision of the Court of Criminal Appeals, which would

have the effect of reinstating the military judge’s dismissal of

the charges and specifications with prejudice.   We conclude as a

matter of law that the Government exercised reasonable diligence

in bringing the charges to trial and that Cossio was not denied

his right to a speedy trial under Article 10, UCMJ.

                           Background

     Prior to the charges which were the basis of this appeal,

Cossio was convicted at a general court-martial on unrelated

charges and sentenced to a bad-conduct discharge, confinement

for ten months, a fine, and reduction to airman basic.   Cossio

was placed on appellate leave after he was released from



          DENIAL OF HIS RIGHT TO A SPEEDY TRIAL UNDER
          ARTICLE 10, UCMJ.

64 M.J. ___ (C.A.A.F. 2006).



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United States v. Cossio, No. 06-6005/AF

confinement on the earlier charges.   While on appellate leave

and as a result of an investigation into a counterfeit website

purporting to be an official Hurlburt Field2 website, Cossio was

apprehended and placed into confinement on October 5, 2005.     A

pretrial confinement hearing was held on October 13, 2005, and

the pretrial confinement hearing officer directed that Cossio

remain in confinement.

     Computer equipment seized from Cossio was sent to the

Defense Computer Forensics Laboratory (DCFL) for analysis on

October 18, 2005.   The DCFL conducted analysis of the equipment

including “imaging” the hard drives and forensically examining

the computer equipment.   This analysis began on October 20,

2005, and lasted until January 12, 2006.   DCFL completed and

dispatched its computer forensic report on January 17, 2006.

The Air Force Office of Special Investigations (AFOSI) completed

its report on January 25, 2006.

     In the interim, draft charges were prepared and forwarded

to the Air Force Special Operations Command (AFSOC) judge

advocate’s office for review on October 26, 2005.   On October

28, Cossio made a demand for a speedy trial.   The AFSOC judge

advocate’s office completed its review of the draft charges on

November 10, 2005, and charges were preferred against Cossio on

2
  Hurlburt Field is a U.S. Air Force Base located on the gulf
coast of Florida and is home to the U.S.A.F. Special Operations



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United States v. Cossio, No. 06-6005/AF

November 22.   The Article 32, UCMJ, 10 U.S.C. § 832 (2000),

investigating officer was appointed on November 29, 2005.   After

a defense-requested delay from December 5 through 13, 2005, the

Article 32, UCMJ, investigation was conducted on December 14 and

the report of investigation submitted on December 22.   Charges

were referred to trial on December 30, 2005.

     On January 3, 2006, the military judge held a Rule for

Courts-Martial (R.C.M.) 802 conference at which trial was set

for January 30.   Because the parties could not agree on that

particular trial date, the chief circuit military judge

“directed” trial to begin on that date.   Cossio remained in

continuous pretrial confinement for a total of 120 days until

the military judge dismissed the charges on February 2, 2006.

                             Discussion

     Because this case came to the Court of Criminal Appeals by

way of a Government appeal under Article 62, UCMJ, that court

was limited to reviewing the military judge’s decision only with

respect to matters of law.   Article 62, UCMJ; R.C.M. 908(c)(2).

The court was bound by the military judge’s findings of fact

unless they were clearly erroneous and that court could not find

its own facts or substitute its own interpretation of the facts.

See United States v. Mizgala, 61 M.J. 122, 127 (C.A.A.F. 2005).

This court reviews de novo the question of whether Cossio was


Command.   See Hurlburt Field, http://www2.hurlburt.af.mil (last


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United States v. Cossio, No. 06-6005/AF

denied his right to a speedy trial under Article 10, UCMJ, as a

matter of law and we are similarly bound by the facts as found

by the military judge unless those facts are clearly erroneous.

Id.; United States v. Cooper, 58 M.J. 54, 58-59 (C.A.A.F. 2003).

     In reviewing claims of a denial of a speedy trial under

Article 10, UCMJ, we do not demand “‘constant motion, but

reasonable diligence in bringing the charges to trial.’”

Mizgala, 61 M.J. at 127 (quoting United States v. Tibbs, 15

C.M.A. 350, 353, 35 C.M.R. 322, 325 (1965)); see also United

States v. Kossman, 38 M.J. 258, 262 (C.M.A. 1993).   We inquire

whether the Government moved toward trial with “reasonable

diligence.”   United States v. Birge, 52 M.J. 209, 211 (C.A.A.F.

1999).   Brief inactivity is not fatal to an otherwise active,

diligent prosecution.   Tibbs, 15 C.M.A. at 353, 35 C.M.R. at 325

(citing United States v. Williams, 12 C.M.A. 81, 83, 30 C.M.R.

81, 83 (1961)).

     Although Article 10, UCMJ, creates a more stringent speedy

trial standard than the Sixth Amendment, we have determined that

“the factors from Barker v. Wingo, 407 U.S. 514 (1972), are an

apt structure for examining the facts and circumstances

surrounding an alleged Article 10 violation.”   Mizgala, 61 M.J.

at 127 (citing Cooper, 58 M.J. at 61); Birge, 52 M.J. at 212.

Those factors are:   “(1) the length of the delay; (2) the



visited Jan. 10, 2007) (official Hurlburt Field website).

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United States v. Cossio, No. 06-6005/AF

reasons for the delay; (3) whether the appellant made a demand

for a speedy trial; and (4) prejudice to the appellant.”

Mizgala, 61 M.J. at 129 (citing Barker, 407 U.S. at 530).

     Cossio argues that in light of his demand for a speedy

trial, the Government’s approach to his case cannot be

considered reasonable.   He attributes delay to Government

“lollygag[ing]” in hope of securing additional charges.     Cossio

claims that the Court of Criminal Appeals did not adhere to the

military judge’s findings of fact which were not clearly

erroneous and thus were binding on that court.    He claims that

the Court of Criminal Appeals erroneously applied a less

deferential “common sense and knowledge of the ways of the

world” standard, thereby substituting its own perceptions for

the military judge’s binding factual findings.

     The Government responds that the military judge erred in

his assessment of whether the charges proceeded to trial with

reasonable diligence.    According to the Government, the

collection and processing of evidence, in particular the need

for forensic evaluation of the computer evidence, was

prioritized appropriately and not unreasonable.   The Government

urges that the Court of Criminal Appeals applied the proper

clearly erroneous standard to the facts as found by the military

judge.




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United States v. Cossio, No. 06-6005/AF

     We have reviewed the record and the military judge’s

thorough findings of fact and conclusions of law.   His analysis

reflects great attention to the just resolution of the motion

before him.   He is to be commended for his diligence in

resolving the motion and his concern for Cossio’s right to a

speedy trial.   His findings that are factual in nature are amply

supported by the record and thus not clearly erroneous.

Nonetheless, we conclude that, as a matter of law, the facts as

found by the military judge do not reflect an absence of due

diligence constituting a denial of Cossio’s Article 10, UCMJ,

right to a speedy trial.

     Initially we are confronted with a dispute between Cossio

and the Government concerning precisely what the military judge

found as fact, and thus binding, versus conclusionary or

interpretative statements.   Military judges must be careful to

restrict findings of fact to things, events, deeds or

circumstances that “actually exist” as distinguished from “legal

effect, consequence, or interpretation.”   Black’s Law Dictionary

628 (8th ed. 2004) (defining “fact”).   We agree with the Court

of Criminal Appeals that the military judge mixed findings of

fact with “criticism”, “apparent belief” and “opinions.”

Cossio, slip op. at 5, 2006 CCA LEXIS 128, at *8-*9, 2006 WL

1540671, at *3.   We therefore accept the military judge’s

findings of fact insofar as they establish the events and



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United States v. Cossio, No. 06-6005/AF

circumstances leading to Cossio’s trial and proceed to review de

novo whether those facts demonstrate a lack of reasonable

diligence under Article 10, UCMJ.

Length of 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 other factors that go into the

balance.’”   United States v. Smith, 94 F.3d 204, 208-09 (6th

Cir. 1996) (quoting Barker, 407 U.S. at 530).   Under the

circumstances of this case –- where the accused had made a

timely demand for a speedy trial and had been in continuous

pretrial confinement for 117 days when he moved for relief –-

the length of delay is sufficient to trigger the full Barker

inquiry.

Reasons for the Delay

     The Government notes it was necessary to await forensic

examination of the computer equipment to assess the nature of

the evidence against Cossio and the true extent of his criminal

conduct.   Cossio counters that once he had confessed, the

Government had all the evidence necessary to proceed to trial.

We conclude that it was not unreasonable for the Government to

marshal and weigh all evidence, including forensic evidence,



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United States v. Cossio, No. 06-6005/AF

before proceeding to trial.   See R.C.M. 601(e)(2) Discussion

(“Ordinarily all known charges should be referred to a single

court-martial.”).

     Forensic examination of the computer equipment seized from

Cossio may have provided critical evidence bearing directly on

whether the Government could sustain its burden of proof.   In

addition, the record reflects that the DCFL devoted itself to

another high priority case at the same time Cossio’s computer

equipment was analyzed.   While delay awaiting forensic evidence

may be unreasonable in another case, nothing in this case

suggests that DCFL improperly prioritized the other case being

analyzed at the same time or otherwise unreasonably delayed

forensic examination of the computer evidence in Cossio’s case.

Although the technical processing of charges against Cossio did

involve some delay, on balance the reason for the delay in this

case weighs in favor of the Government.

Speedy Trial Request

     Cossio made a demand for a speedy trial twenty-three days

after he was apprehended.   Thus, this factor weighs in Cossio’s

favor.

Prejudice

     As we noted in Mizgala, the Supreme Court has established

the following test for prejudice in the speedy trial context:

            Prejudice, of course, should be assessed in
            the light of the interests of defendants


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United States v. Cossio, No. 06-6005/AF

          which the speedy trial right was designed to
          protect. This Court has identified three
          such interests: (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. 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.

Barker, 407 U.S. at 532 (footnote omitted), quoted in Mizgala,

61 M.J. at 129.

     Cossio has failed to assert or establish prejudice under

the Barker prejudice criteria.   The military judge found:

          Although there was pretrial confinement in
          this case, there has been no evidence that
          AB Cossio’s “anxiety and concern” has
          exceeded the norm. There’s been no showing
          that he wasn’t paid, after an early finance
          glitch that was remedied. There’s been no
          showing that the conditions of his pretrial
          confinement have been unduly harsh. There’s
          been no showing that his defense has been
          impaired by the passage of time. Lastly,
          upon conviction, he would be entitled to
          receive administrative credit upon any
          sentence to confinement for the days he
          spent in pretrial confinement. Therefore,
          there is no prejudice in this case beyond
          that inherent in sitting in pretrial
          confinement . . . .

The Court of Criminal Appeals also concluded that there was no

prejudice and we agree. The record clearly fails to establish

that Cossio suffered any Barker prejudice.




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United States v. Cossio, No. 06-6005/AF

Balancing of Barker Factors in an Article 10 Context

     Considering the fundamental command of Article 10, UCMJ,

for reasonable diligence and balancing the Barker factors, we

conclude that Cossio was not denied his right to a speedy trial

under Article 10, UCMJ.   Even though the technical processing of

the charges was not exemplary, the Government has the right (if

not the obligation) to thoroughly investigate a case before

proceeding to trial.   Here, the record does not demonstrate that

DCFL improperly prioritized or otherwise unreasonably delayed

the forensic examination of the computer evidence, and there was

no particularized prejudice.    The Government actually leaned

forward by getting a trial date before it had the completed DCFL

analysis or AFOSI report of investigation.   We conclude that the

Government proceeded to trial with reasonable diligence under

the circumstances of this case and the Court of Criminal Appeals

did not err in deciding that Cossio was not denied his Article

10, UCMJ, right to a speedy trial.

                               Decision

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




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