                       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).

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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



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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




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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


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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

                                   2
United States v. Wilson, No. 13-0096/AR


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.

                                   4
United States v. Wilson, No. 13-0096/AR


     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.

                                  5
United States v. Wilson, No. 13-0096/AR


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.




                                 7
United States v. Wilson, No. 13-0096/AR


              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

                                 2 
 
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



                                    3 
 
United States v. Wilson, No. 13-0096/AR
 

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 
 
