UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                              PEDE, TOZZI, and CAMPANELLA
                                 Appellate Military Judges

                             UNITED STATES, Appellee
                                           v.
                            Staff Sergeant MANUEL RICO
                            United States Army, Appellant

                                      ARMY 20130045

    Headquarters, U.S. Army Maneuver Center of Excellence and Fort Benning
                        Stephen Castlen, Military Judge
                Colonel Mary M. Foreman, Staff Judge Advocate


For Appellant: Colonel Kevin Boyle, JA; Major Amy E. Nieman, JA; Captain
Timothy J. Kotsis, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Major Steven J. Collins, JA; Captain
Benjamin Hogan, JA (on brief).


                                      25 February 2015
                                 ----------------------------------
                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

PEDE, Chief Judge:

       A military judge sitting as a general court -martial convicted appellant,
pursuant to his pleas, of one specification of maltreatment and one specification of
indecent conduct in violation of Articles 93 and 120, Uniform Code of Military
Justice, 10 U.S.C. §§ 893, 920 (2006 & Supp. IV 2011) [hereinafter UCMJ].
Contrary to appellant’s pleas, the military judge convicted him of one specification
of rape of a child, two specifications of aggravated sexual contact with a child, one
specification of indecent liberties with a child, one specification of indecent acts,
and one specification of forcible sodomy of a child under sixteen years of age, in
violation of Articles 120 and 125, UCMJ . The military judge sentenced appellant to
a dishonorable discharge, confinement for twenty-five years, and reduction to the
grade of E-1. The convening authority approved the adjudged sentence and credited
appellant with 411 days of credit against the sentence to confinement .
RICO—ARMY 20130045

       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

      Appellant’s pretrial confinement began on 3 December 2011, when he was
apprehended at Atlanta’s Hartsfield-Jackson Airport upon return from Afghanistan
on leave. On 15 December 2011, three charges were preferred against appellant and
the Article 32, UCMJ, pretrial investigation, took place on 10 February 2012. The
convening authority later referred charges on 13 March 2012.

       On 23 March 2012, appellant’s military defense counsel filed a motion under
Rule for Courts-Martial [hereinafter R.C.M.] 906 and 305, requesting that appellant
be released from pretrial confinement based on an abuse of discretion by the
reviewing officer and an insufficient basis for continued confinement. The military
judge denied appellant’s motion and the trial was set for 25 June 2012. The defense
later requested, and the military judge approved, a trial date of 15 October 2012 due
to the hiring of civilian defense counsel.

       The government notified the defense counsel on 2 October 2012 that they
were having significant difficulties with the execution of the contract for one of the
defense’s expert consultants due to the consultant’s change in employment and a
required change in funding codes. On 4 October the defense agreed to delay the trial
until January 2013. The defense’s expert consultant informed defense counsel on 5
October of the existence of a valid contract and the verification she received from
the government’s civilian contract specialist. However, the trial counsel was not
aware that the contract for the defense expert consultant was valid and in place when
the trial date was moved to January 2013.

        On 31 October 2012 the defense counsel filed a motion for release from
pretrial confinement under R.C.M. 305 or, in the alternative, to dismiss the charges
for a violation of speedy trial under Article 10, UCMJ. The military judge denied
appellant’s motion in a written opinion stating the “[g]overnment [had] used
‘reasonable diligence’ to bring the accused to trial.” The trial took place from 13-16
January 2013.

                             LAW AND DISCUSSION

       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



                                          2
RICO—ARMY 20130045

(C.A.A.F. 2011) (quoting United States v. Cossio, 64 M.J. 254, 256 (C.A.A.F.
2007)).

       The fundamental right to a speedy trial is guaranteed by the 6th Amendment
to the United States Constitution. This right is further codified in Article 10, UCMJ
and it requires the government to take “immediate steps” to try the Accused. See
United States v. Kossman, 38 M.J. 258, 259 (C.M.A. 1993) (Article 10 “imposes [on
the government] a more stringent speedy trial standard than that of the Sixth
Amendment.”) (citation omitted). Neither the Constitution nor Article 10 requires
constant motion. United States v. Wilson, 72 M.J. 347, 351 (C.A.A.F. 2013).
Instead, “reasonable diligence” is the implementing standard. United States v.
Mizgala, 61 M.J. 122, 127 (C.A.A.F. 2005) (citations omitted) .

       In Barker v. Wingo, the United States Supreme Court articulated four factors
that must be utilized when analyzing an alleged Article 10 violation: (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 appellant. 407 U.S. 514, 530 (1972); see
also Mizgala, 61 M.J. at 129 (applying the Barker factors).

       Here, appellant was in pretrial confinement for over one year. The defense
was accountable for 253 days of the 411 days, and a good portion of this time
occurred after appellant’s arraignment. This delay, thus, occurred during a period
under the direct management and control of the military judge. See R.C.M. 801(a)
(“The military judge is the presiding officer in a court -martial.”). Although
certainly not dispositive, the entry of the Court into the march to trial is a significant
and informative event. See UCMJ art. 40 (authorizing military judges to grant
continuances for reasonable cause “to any party for such time, and as often, as may
appear to be just.”); Kossman, 38 M.J. at 262 (“Judges . . . can readily determine
whether the [g]overnment has been foot-dragging on a given case, under the
circumstances then and there prevailing.”). The length of the delay, therefore, is
persuasive but not controlling in this case. The three month delay created by the
contracting missteps, while unfortunat e and ultimately unnecessary, is not
dispositive and does not significantly tip the balance of this factor .

       Importantly, on 31 October 2012, appellant admitted that the majority of the
delay up to that point had been properly attributed to the defense. We also note that
the trial judge properly accounted for the various delays leading to the October trial
date. Appellant requested a 46-day delay in the Article 32, UCMJ, investigation
hearing, agreed to a trial date 95 days after arraignment, and requested a second trial
date 112 days after the original trial date. Even after the contracting error was
revealed, the defense requested an additional month of delay from the government’s
proposals.




                                            3
RICO—ARMY 20130045

       Under the second prong of our Barker analysis, we note that the military
judge issued findings of fact that the government’s mistake was not the result of
gross negligence. Despite an early admonition from the trial judge to the trial
counsel to focus on effective contracting in this case, the government nonetheless
failed to adequately anticipate and oversee the process. It appears supervisory judge
advocate oversight was absent in the processing of this case. The principal reason
for the government’s mistake was an overreliance on passive forms of
communication, mainly electronic mail. Effective trial practice, most especially in
cases of pretrial confinement, requires an emphasis at all levels within a criminal
practice of personal action and urgency. W hile the government’s failure was
avoidable and is certainly unfortunate, the government did not act in bad faith.
Moreover, the government’s willingness to reschedule the trial on the earliest
possible date following discovery of the mistake, combined with the defense’s
willingness to request lengthy delays prior to this time mitigate in favor of the
government, despite its contracting missteps.

      Appellant clearly meets the requirements of the third prong having filed a
timely demand for speedy trial prior to trial.

       Finally, there was no prejudice to appellant from the delay. No evidence was
lost, memories did not fade, and witnesses remained available for trial. Pretrial
confinement was not oppressive in any legal sense and his defense was not impaired.
The latter factor is critical in that there was no evidence that appellant was unable to
adequately prepare for the trial due to the delay.

                                   CONCLUSION

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

      Senior Judge TOZZI and Judge CAMPANELLA concur.


                                        FOR
                                         FORTHE
                                             THECOURT:
                                                 COURT:




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




                                           4
