UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                            KERN, ALDYKIEWICZ, and MARTIN
                                Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                  Private First Class RONALD D. WASHINGTON
                           United States Army, Appellant

                                      ARMY 20110525

                         Headquarters, I Corps (convened)
                  Headquarters, I Corps (Rear) (Provisional) (action)
                            Kwasi Hawks, Military Judge
                  Colonel Walter M. Hudson, Staff Judge Advocate


For Appellant: Lieutenant Colonel Imogene M. Jamison, JA; Major Jacob D.
Bashore, JA; Captain Jack D. Einhorn, JA (on brief); Major Jacob D. Bashore, JA;
Captain Brian D. Andes, JA (on reply brief) .

For Appellee: Lieutenant Colonel James L. Varley, JA; Major Catherine L.
Brantley, JA; Captain Edward J. Whitford, JA (on brief).


                                      30 October 2013
                                 ----------------------------------
                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

KERN, Senior Judge:

       A military judge sitting as a general court -martial convicted appellant,
pursuant to his pleas, of one specification of making a false official statement, one
specification of adultery, and one specification of possessing eight video files of
child pornography in violation of Articles 107 and 134, Uniform Code of Military
Justice, 10 U.S.C. §§ 907 and 934 (2006) [hereinafter UCMJ]. The military judge
convicted appellant, contrary to his plea, of possessing one additional video file of
child pornography. The military judge sentenced appellant to a dishonorable
discharge, confinement for three years, forfeiture of all pay and allowances, and
WASHINGTON —ARMY 20110525

reduction to the grade of E-1. The convening authority approved the adjudged
sentence and credited appellant with 430 days of credit against the sentence to
confinement. 1

       This case is before this court for review under Article 66, UCMJ. Appellant
raised one assignment of error alleging a violation of Article 10, UCMJ , which
warrants discussion, but not relief. We also considered appellant’s matters raised
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and find them to
be without merit.

                          PROCEDURAL BACKGROUND

      On 22 January 2010, two charges were preferred against appellant. On
20 April 2010, an additional charge was preferred against appellant. Following
appellant’s Article 32, UCMJ, pretrial investigation, appellant was placed in pretrial
confinement on 13 August 2010. On 15 September 2010, the Special Court-Martial
Convening Authority withdrew all charges and re-preferred new charges, including
some of the original charges.

        On 27 September 2010, defense counsel, in a memorandum providing notice
of an alleged violation of rights resulting from one of the newly preferred charges
against appellant, informed the General Court -Martial Convening Authority that
appellant had a “substantial interest in immediate action on this matter and a speedy
trial.” On 29 September 2010, appellant’s civilian defense counsel submitted a
discovery request to the government that included an extensive list of specific
requests pertaining to the government’s DNA testing. There is no evidence in the
record that appellant ever requested reconsideration of his pretr ial confinement.

      Charges were referred on 1 October 2010. In a motion dated 4 October 2010,
defense counsel moved to dismiss all charges alleging the government violated
appellant’s right to a speedy trial under Rule for Courts -Martial [hereinafter R.C.M.]
707, Article 33, UCMJ, 2 and Article 10, UCMJ. On 28 October 2010, the date of

1
  This confinement credit includes appellant’s pretrial confinement during an
interlocutory appeal of a suppression ruling. United States v. Washington, ARMY
MISC 20100961 (Army Ct. Crim. App. 8 Feb. 2011), pet. denied, 70 M.J. 93
(C.A.A.F. 2011).
2
  Article 33, UCMJ, requires that “[w]hen a person is held for trial by general court -
martial, the commanding officer shall . . . forward the charges” within 8 days to the
general court-martial convening authority, “if practicable.” If it is “not practicable,”
the commanding officer “shall report in writing . . . the reasons for delay.” Art. 33,

                                                                        (continued . . .)


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appellant’s arraignment, defense counsel presented evidence in support of the
motion to dismiss. The military judge took the evidence without ruling on the
motion. 3

       The next proceeding in this case was an Article 39(a) , UCMJ, hearing on
10 November 2010 in which the court again took up appellant’s motion to dismiss
for a violation of appellant’s right to a speedy trial. The military judge denied
appellant’s motion under R.C.M. 707. However, the military judge found the record
was “incomplete” on the Article 10, UCMJ, motion; took the issue under
advisement; and extended the deadline for parties to supplement the record or call
witnesses.

       What followed was a lengthy delay in the trial during which an evidentiary
suppression ruling by the military judge was reversed pursuant to a government
Article 62, UCMJ, appeal. When the trial resumed, prior to appellant’s entry of
pleas, he was advised by the military judge that “any motion to dismiss or grant
other appropriate relief should be made at this time.” Appellant did not re-raise the
Article 10, UCMJ, motion. Appellant entered mixed pleas. Ultimately, appellant:
was convicted in accordance with his pleas of fals e official statement, adultery, and
possession of child pornography; was found not gui lty of rape and communicating a




(. . . continued)
UCMJ. In this case, the military judge initially awarded appellant 41 days of
confinement credit for the government’s viola tion of Article 33, UCMJ, on 10
November 2010. However, the military judge later reversed himself and held that
confinement credit was “not supported by the law [for a violation of Article 33,
UCMJ].” In United States v. Nelson, our superior court stated that Article 33,
UCMJ, “rather than embodying any substantive rights or protections, simply is a
procedural mandate, deviation from which must be measured for specific prejudice
to the accused.” 5 M.J. 189, 190 n.1 (C.M.A. 1978).
3
  Because it is not determinative in this case, we decline to deci de whether the
Article 10, UCMJ, clock stopped on this day as a result of the military judge’s
“taking of the evidence” for appellant’s motion to dismiss. See United States v.
Cooper, 58 M.J. 54, 59-60 (C.A.A.F. 2003) (holding that “[o]n its face . . . Ar ticle
10 seems to impose on the Government a duty that extends beyond arraignment to at
least the taking of evidence.”).




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threat; and was found guilty, contrary to his plea, of possessing a ninth video file of
child pornography in addition to the eight to which he pleaded guilty. 4

                              LAW AND DISCUSSION

       On appeal, appellant argues that his Artic le 10, UCMJ, speedy trial right was
violated and the charges should be dismissed with prejudice. 5 Appellant further
argues that should this court find the Article 10, UCMJ, issue was waived, appellant
received ineffective assistance of counsel. The government argues, however, the
Article 10, UCMJ, issue was waived by not pursuing a ruling by the military judge ,
and even if not waived, the Article 10, UCMJ, motion fails on its merits. On the
facts in this case, we need not resolve the issue of waiver because the record is
sufficient for us to resolve the alleged Article 10, UCMJ, claim on its merits. See
generally United States v. Birge, 52 M.J. 209 (C.A.A.F. 1999).

       We review an allegation of a violation of Article 10, UCMJ, de novo as a
matter of law, and we are “bound by the facts as found by the military judge unless
those facts are clearly erroneous.” United States v. Schuber, 70 M.J. 181, 188
(C.A.A.F. 2011) (quoting United States v. Cossio, 64 M.J. 254, 256 (C.A.A.F.
2007)). In this case, the military judge determined the record to be incomplete
regarding the Article 10, UCMJ, issue, and he never made specific findings of fact
related to the Article 10, UCMJ, issue. 6 Despite the military judge’s initial
determination that the record is incomplete, applying our fact-finding ability under
Article 66, UCMJ, we are confident that the record contains the details necessary to
resolve the Article 10, UCMJ, assignment of error.

       “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, 64 M.J. at 255.

4
 Prior to entry of pleas, the military judge granted the government’s motion to
dismiss a sodomy specification, an aggravated sexual assault specification, and an
adultery specification.
5
  Appellant contends the length of the delay for purposes of his allegation of an
Article 10, UCMJ, violation was 89 days, which ended at the 10 November 2010
trial date during which the motion was litigated. We do not disagree with that total.
6
  The military judge did make findings of fact with regards to the R.C.M. 707
motion, and there are no inconsistencies between those findings of fact and the
findings of fact by this court with regards to th e Article 10, UCMJ, motion.




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WASHINGTON —ARMY 20110525

       According to our superior court, “the Government must demonstrate
reasonable diligence in proceeding toward trial during Appellant’s pretrial
confinement.” Schuber, 70 M.J. at 188. However, “[b]rief inactivity is not fatal to
an otherwise active, diligent prosecution.” Cossio, 64 M.J. at 256 (quoting United
States v. Tibbs, 15 C.M.A. 350, 353, 35 C.M.R. 322, 325 (1965)).

       Article 10, UCMJ, violations are analyzed using the four-factor structure from
Barker v. Wingo, 407 U.S. 514, 530-33 (1972). The first factor is “the length of the
delay,” which “is to some extent a triggering mechanism [:] . . . unless there is a
period of delay that appears, on its face, to be u nreasonable under the circumstances,
there is no necessity for inquiry into the other factors that go into the balance.”
Schuber, 70 M.J. at 188 (quoting Cossio, 64 M.J. at 257). Like in the Schuber case
before our superior court, the first Barker factor is also the issue before us now.

       Although the first factor is not meant to be a Barker analysis within a Barker
analysis, there are circumstances and factors that are appropriate to consider ,
including the seriousness of the offense; the complexity of the case; and the
availability of proof. Id. Additional factors specific to the purposes of Article 10,
UCMJ—“to prevent an accused from languishing in prison without an opportunity
for bail”—must also be considered. Id. “These additional circumstances include
whether the Appellant was informed of the accusations against him, wh ether the
Government complied with procedures relating to pretrial confinement, and whether
the Government was responsive to requests for reconsideration of pretrial
confinement.” Id.

        In Schuber, appellant was in pre-trial confinement for 71 days for a
straightforward urinalysis case, and the government did not prefer charges, initiate
an Article 32, UCMJ, investigation, forward the charges, or respond to appellant’s
first three discovery requests, which included demands for a speedy trial , in a timely
manner. Id. However, appellant was informed of the accusations against him as
early as his second day of confinement. Id. Moreover, some additional evidence
concerning two positive samples was not reported until after appellant was in
confinement for 15 days. Schuber, 70 M.J. at 188. Finally, there was no complaint
regarding pretrial confinement procedures, and therefore, under the presumption of
regularity, the Court of Appeals for the Armed Forces (CAAF) presumed the
Government complied with pretrial confinement procedures under R.C.M. 305(h)-(i),
including a twenty-four hour report to the commander, a forty-eight-hour probable
cause determination, a seventy-two-hour commander’s memorandum, and a seven-
day review. Id. at 188-89. The CAAF ultimately concluded that the period of
seventy-one days was not facially unreasonable under Article 10, UCMJ, rendering a
review of the remaining Barker factors unnecessary. Id. at 189.




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WASHINGTON —ARMY 20110525

       In the case at hand, although the 89-day time period is greater than the one in
Schuber, nearly all of the circumstances and factors the CAAF considered in that
case tend to cut against an argument that this period of time was facially
unreasonable.

       Unlike Schuber, charges were preferred and a pretrial investigation held prior
to appellant being placed in pretrial confinement. Moreover, the charges in
appellant’s case were very serious, including rape, sodomy, and possession of child
pornography. In addition, the complexity of appellant’s case was underscored not
only by the government preferring additional charges, withdrawing and re-preferring
revised specifications, but also by the continued and extensive discovery requests by
defense counsel concerning DNA testing while appellant was in pretrial
confinement. Furthermore, there are no complaints or evidence in the record
concerning pretrial confinement procedures; no requests for reconsideration of
pretrial confinement; and no specific demands for speedy trial other than one
statement in an unrelated memorandum to the convening author ity wherein appellant
alleged he had a “substantial interest” in a speedy trial. Therefore, like our superior
court in Schuber, we find, under the facts and circumstances of this case, that the
eighty-nine day pretrial confinement period was not facially unreasonable under
Article 10, UCMJ, and a review of remaining Barker factors is unnecessary. Id. at
189.

                                   CONCLUSION

      On consideration of the entire record, including the matters pe rsonally
submitted by appellant pursuant to Grostefon, the findings of guilty and the sentence
are AFFIRMED.

      Judge ALDYKIEWICZ and Judge MARTIN concur.


                                        FOR THE
                                        FOR THE COURT:
                                                COURT:




                                        MALCOLM H. SQUIRES, JR.
                                        MALCOLM     H. SQUIRES, JR.
                                        Clerk of Court
                                        Clerk of Court




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