                         UNITED STATES, Appellee

                                         v.

                  Steven A. DANYLO II, Airman Basic
                      U.S. Air Force, Appellant

                                  No. 13-0570
                           Crim. App. No. 37916

       United States Court of Appeals for the Armed Forces

                        Argued December 16, 2013

                          Decided March 24, 2014

STUCKY, J., delivered the opinion of the Court, in which RYAN
and OHLSON, JJ., joined. BAKER, C.J., filed a separate
dissenting opinion, in which ERDMANN, J., joined.


                                     Counsel


For Appellant:    Major Anthony D. Ortiz (argued).


For Appellee: Lieutenant Colonel C. Taylor Smith (argued);
Colonel Don M. Christensen, Major Terence S. Dougherty, and
Gerald R. Bruce, Esq. (on brief); Major Daniel J. Breen.


Military Judge:    Matthew D. Van Dalen



            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Danylo, No. 13-0570/AF


     Judge STUCKY delivered the opinion of the Court.

     Appellant was in pretrial confinement for nearly a year

before he was convicted of various drug crimes and assault.    We

granted review to determine whether he was denied his Sixth

Amendment right to a speedy trial when his court-martial

commenced about 350 days after he entered pretrial confinement,

and whether the military judge erred when he focused only on a

portion of the delay in his speedy trial analysis after the

appellate court had already ruled on the other portion.    We hold

that the delay does not rise to the level of a Sixth Amendment

violation in this case, and that the military judge below did

not err in his speedy trial analysis.   We therefore affirm the

judgment of the United States Air Force Court of Criminal

Appeals (CCA).

                          I.   Background

     Pursuant to his pleas, Appellant was convicted of one

specification each of using marijuana, distributing marijuana,

using cocaine, distributing cocaine, introducing marijuana onto

base, and assault, in violation of Articles 112a and 128,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 912a, 928

(2012).   Appellant’s speedy trial issues arose from the

Government’s slow prosecution of his case, even though he pled

guilty and was in pretrial confinement, and the slow review of

the Government’s appeal by the CCA.

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United States v. Danylo, No. 13-0570/AF


     Appellant tested positive for drugs and was interrogated

about the results of the drug test on March 26, 2010.   He was

restricted to base on April 9, and further restricted a day

later, with base liberties restricted and an escort required

outside of the dormitory.   After being further restricted,

Appellant assaulted another airman, and on April 16, he was

placed in pretrial confinement.   A few weeks after that, on May

3, he demanded a speedy trial for the first time.

     Throughout June and July 2010, the Government prosecuted

his case by preferring charges, holding a hearing pursuant to

Article 32, UCMJ, 10 U.S.C. § 832 (2012), and referring charges

to court-martial.   On August 6, the convening authority signed a

pretrial agreement in which Appellant agreed to plead guilty to

most charges.   The pretrial agreement preserved the speedy trial

issue for appeal.

     On August 10, 2010, 123 days after being restricted to base

and 116 days after being placed in pretrial confinement,1 the

military judge dismissed all charges against Appellant with

prejudice due to a speedy trial violation.   The Government

appealed to the CCA on September 20, 2010, and 170 days later,

1
  These time periods are miscalculated in the record as 121 days
and 115 days, respectively. In calculating the number of days
elapsed for a speedy trial claim, “do not count the first day,
but count the last day.” United States v. Vogan, 35 M.J. 32, 34
n.* (C.M.A. 1992) (citing Rule for Courts-Martial (R.C.M.)
707(b)(1)).

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United States v. Danylo, No. 13-0570/AF


the CCA granted the Government’s appeal.   United States v.

Danylo, Misc. Dkt. No. 2010-15, slip op. at 14 (A.F. Ct. Crim.

App. Mar. 9, 2011) (order setting aside dismissal by military

judge and remanding for further proceedings) (unpublished).

This 170-day delay at the CCA occurred despite multiple motions

from both Appellant and the Government requesting expedited

review, and despite the statutory priority given Article 62

appeals.   Article 62(b), UCMJ, 10 U.S.C. § 862(b) (2012) (“An

appeal under this section . . . shall, whenever practicable,

have priority over all other proceedings before [the CCA].”).

This Court denied a petition for review of that CCA decision

without prejudice.   United States v. Danylo, 70 M.J. 217

(C.A.A.F. 2011) (denying petition).

     Appellant’s court-martial resumed on March 31, 2011.       He

argued again the speedy trial issue, which this time the

military judge denied.   Pursuant to conditional pleas and a new

pretrial agreement limiting confinement to time served, which

now totaled 349 days, Appellant was convicted and sentenced to a

bad-conduct discharge and confinement for ten months.   The

convening authority, recognizing that the term of confinement

had already been served, approved the sentence as adjudged on

April 22, 2011.   Two years later, the CCA affirmed.   United

States v. Danylo, No. ACM 37916, 2013 CCA LEXIS 334, 2013 WL

1911222 (A.F. Ct. Crim. App. Apr. 17, 2013) (unpublished).

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United States v. Danylo, No. 13-0570/AF


                            II.   Discussion

      We review de novo Sixth Amendment speedy trial issues.

United States v. Cooper, 58 M.J. 54, 58 (C.A.A.F. 2003).        In

analyzing an appellant’s speedy trial right, we “giv[e]

substantial deference to the military judge’s findings of fact

unless they are clearly erroneous.”     United States v. Thompson,

68 M.J. 308, 312 (C.A.A.F. 2010).

                  A.   Appellant’s Speedy Trial Claim

      “In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial . . . .”     U.S. Const. amend

VI.   In the military, Sixth Amendment speedy trial protections

are triggered upon preferral of charges or the imposition of

pretrial restraint.     See Vogan, 35 M.J. at 33.   In addition to

the Sixth Amendment, the UCMJ and the R.C.M. afford an accused a

right to a speedy trial.     Under Article 10, UCMJ, 10 U.S.C.

§ 810 (2012), once an appellant is placed in pretrial

confinement the Government is required to exercise “reasonable

diligence” in bringing the accused to trial.     United States v.

Kossman, 38 M.J. 258, 262 (C.M.A. 1993) (internal quotation

marks omitted).    Specifically, R.C.M. 707(a) provides that

“[t]he accused shall be brought to trial within 120 days” of the

imposition of restraint.     At Appellant’s first trial in 2010,

the military judge found a speedy trial violation under Article

10 and R.C.M. 707, but not the Sixth Amendment.     Appellant

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United States v. Danylo, No. 13-0570/AF


presently claims a violation of his Sixth Amendment speedy trial

right.   Appellant does not make an R.C.M. 707 claim before this

Court, and although he argued for an Article 10 violation in his

brief before this Court, the only assigned issue in his

petition, and the issue this Court granted, was the Sixth

Amendment issue.

     In determining whether an appellant has been denied his

right to a speedy trial under the Sixth Amendment, this Court

considers the following 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 appellant.”

United States v. Mizgala, 61 M.J. 122, 129 (C.A.A.F. 2005)

(citing Barker v. Wingo, 407 U.S. 514, 530 (1972)).

                      1.   Length of the Delay

     “[U]nless the delay is facially unreasonable, the full due

process analysis will not be triggered.”      United States v.

Merritt, 72 M.J. 483, 489 (C.A.A.F. 2013) (internal quotation

marks and citation omitted).   Appellant was in pretrial

confinement for 349 days until his court-martial occurred.       This

exceeds periods of pretrial confinement that we have previously

found to trigger full speedy trial analysis.      See Thompson, 68

M.J. at 312 (145 days); United States v. Cossio, 64 M.J. 254,

257 (C.A.A.F. 2007) (117 days).    The Government concedes that

this factor weighs in Appellant’s favor.

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United States v. Danylo, No. 13-0570/AF


                      2.   Reasons for the Delay

     Two main periods of time account for the 349-day delay.

First, it took the Government 116 days to bring Appellant to

trial after he entered pretrial confinement.       Second, the

Article 62 appeal took 170 days, while Appellant remained in

confinement.

     The first delay is primarily due to the prosecution’s

strategy, which was to turn all four of the other alleged

members of a drug ring into witnesses against Appellant.         This

was a time-consuming approach because it required obtaining

immunity for the other witnesses, and it took over three months

from the date of Appellant’s entering confinement for the

Government to be ready to refer charges to court-martial.

However, this strategy was certainly not unusual or

inappropriate, and under the circumstances it did not take an

inordinate amount of time.

     Under the Sixth Amendment speedy trial right, the Supreme

Court has indicated that such a prosecution strategy is

reasonable.    See United States v. Ewell, 383 U.S. 116, 120

(1966) (noting that prosecution procedures “are designed to move

at a deliberate pace,” and finding no Sixth Amendment speedy

trial violation in a nineteen-month pretrial delay); see also

United States v. Grom, 21 M.J. 53, 57 (C.M.A. 1985) (noting that

“[i]n Barker, most of the five-year delay between arrest and

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United States v. Danylo, No. 13-0570/AF


trial was due to the prosecution’s efforts to obtain a

conviction” through the testimony of Barker’s co-actor).    In

Grom, the appellant raised a speedy trial issue under both

Article 10, UCMJ, and the Sixth Amendment.    Id. at 54.   Without

distinguishing between the two, our predecessor court found

nothing improper in an eight-month delay due to the

prosecution’s strategy, even though “the charges finally

referred to trial were based on evidence available at the time

of the arrest.”    Id. at 57.   While the appellant in Grom was not

in pretrial confinement, he was somewhat restricted because he

had been involuntarily retained in military service beyond his

normal date of separation from active duty pending his trial.

See id. at 55; Barker, 407 U.S. at 533 (“[E]ven if an accused is

not incarcerated prior to trial, he is still disadvantaged by

restraints on his liberty.”).

        In the present case, the Government provided substantial

justification for the time it took for its prosecution strategy,

including the process of obtaining immunity for its witnesses.

And as the CCA noted, the Government took this time to

investigate the case, convene a pretrial confinement review

hearing, prepare and obtain approval for the charges, and hold

an Article 32 hearing.    Danylo, Misc. Dkt. No. 2010-15, slip op.

at 5.    The prosecution in this case was therefore reasonable

under the Sixth Amendment.

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United States v. Danylo, No. 13-0570/AF


     The other main source of delay -- the CCA’s delay on the

Article 62 appeal -- is unexplained.    “[T]imely management and

disposition of cases docketed at the Courts of Criminal Appeals

is a responsibility of the Courts of Criminal Appeals.”   United

States v. Moreno, 63 M.J. 129, 137 (C.A.A.F. 2006).    Article

62(b), UCMJ, requires that an appeal by the government “shall,

whenever practicable, have priority over all other proceedings

before that court.”2   While Appellant’s appeal was pending,

different panels of the CCA issued decisions in 108 cases, three

of which were Article 62 appeals.    Of these three, Appellant was

the only one in pretrial confinement.    The CCA’s delay occurred

even though both parties had sought to expedite the processing

of the Government’s Article 62 appeal.    The CCA also provided no

explanation as to why speedier disposition was not practicable.

See Danylo, Misc. Dkt. No. 2010-15, at 5 n.3.

     Despite our significant concern about the processing time

at the lower court, we are reluctant to pierce the veil of the

2
  Article 62(c), UCMJ, provides that delays resulting from an
appeal under Article 62 “shall be excluded” from speedy trial
analysis “unless an appropriate authority determines that the
appeal was filed solely for the purpose of delay with the
knowledge that it was totally frivolous and without merit.”
10 U.S.C. § 862(c) (2012). The Supreme Court “give[s] Congress
the highest deference in ordering military affairs” under its
constitutional mandate “[t]o make Rules for the Government and
Regulation of the land and naval Forces.” Loving v. United
States, 517 U.S. 748, 759, 768 (1996) (citing U.S. Const. art.
I, § 8, cl. 14). Nevertheless, Article 62(c) does not totally
immunize the Courts of Criminal Appeals against judicial review
of the timeliness of their decisions.
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United States v. Danylo, No. 13-0570/AF


CCA’s decision-making process and attempt to regulate the day-

to-day mechanics of the legal process assigned to the court.

See Moreno, 63 M.J. at 137 (noting that we apply “a more

flexible review” of the CCA’s review period, “recognizing that

it involves the exercise of [their] judicial decision-making

authority”).    Here, fewer than six months elapsed between the

Government’s notice of appeal and the CCA’s decision.      See id.

at 137-38 (“We find that a period of slightly over six months is

not an unreasonable time for review by the Court of Criminal

Appeals.”); Danylo, Misc. Dkt. No. 2010-15, slip op. at 14.

Because the Article 62 appellate process continued deliberately,

though slowly, this delay is “more neutral.”     United States v.

Wilson, 72 M.J. 347, 352 (C.A.A.F. 2013) (quoting Barker, 407

U.S. at 531) (internal quotation marks omitted).

                3.   Assertion of the Speedy Trial Right

        As the Government conceded, “[t]here is no dispute that

Appellant demanded a speedy trial and requested release from

pretrial confinement.”     He made several requests for a speedy

trial throughout the course of his appeal beginning on May 3,

2010.    Additionally, the Government moved for expedited

consideration multiple times.     This factor weighs strongly in

Appellant’s favor.




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United States v. Danylo, No. 13-0570/AF


                             4.   Prejudice

        Appellant served two months of confinement beyond his

adjudged sentence.    But in four decisions, no military judge or

court of appeals has found significant prejudice in Appellant’s

case.    We also decline to do so.

        There are “three similar interests” relevant to the

prejudice analysis:    “(1) prevention of oppressive incarceration

pending appeal; (2) minimization of anxiety and concern of those

convicted awaiting the outcome of their appeals; and

(3) limitation of the possibility that a convicted person’s

grounds for appeal, and his or her defenses in case of reversal

and retrial, might be impaired.”        Moreno, 63 M.J. at 138–39.

“Of these forms of prejudice, ‘the most serious is the last,

because the inability of a defendant adequately to prepare his

case skews the fairness of the entire system.’”       Doggett v.

United States, 505 U.S. 647, 654 (1992) (quoting Barker, 407

U.S. at 532).    While the first interest weighs in Appellant’s

favor, the second and third weigh against him.

        First, Appellant was subjected to pretrial confinement for

nearly a year, two months longer than his adjudged sentence.

The military judge credited Appellant with the pretrial

confinement he served against his adjudged sentence, and

Appellant was entitled to be released immediately following the

conclusion of his court-martial.        Appellant did not receive

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United States v. Danylo, No. 13-0570/AF


credit for the two months’ confinement he served beyond the ten-

month sentence, though, because he waived the issue.   In his

pretrial agreement, he agreed to waive all waivable motions,

including motions pursuant to Article 13, UCMJ, 10 U.S.C. § 913

(2012) (limiting pretrial confinement).   See United States v.

McCants, 39 M.J. 91, 93 (C.M.A. 1994) (“Failure to make a motion

for appropriate relief [for pretrial-confinement credit at

trial] constitutes waiver.”) (citing R.C.M. 905(e)).   Appellant

made no such motion in this case; even had he done so, the issue

was waived in his pretrial agreement.

       Moreover, we have never held that pretrial confinement

which exceeds an adjudged sentence is per se prejudicial.    See

Bell v. Wolfish, 441 U.S. 520, 539 (1979) (holding that, when

“reasonably related to a legitimate governmental objective,”

pretrial detention is not “punishment”) (internal quotation

marks omitted).   The Barker Court held that ten months of

pretrial confinement -- nearly as long as the case before us --

was not prejudicial where there was no adverse impact on the

defendant’s ability to present a defense.   Barker, 407 U.S. at

534.

       Second, Appellant argues that the confinement conditions

caused him particularized anxiety and concern.   While the

military judge found that Appellant’s confinement “almost

certainly caused anxiety, stress, and the loss of ability to

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United States v. Danylo, No. 13-0570/AF


carry on a normal lifestyle,” the confinement conditions were

not unique to his case, and the CCA noted that some of his

anxiety can be attributed to his own misconduct while in

pretrial confinement.   Danylo, 2013 CCA LEXIS 334, at *10, 2013

WL 1911222, at *3; Brief for Appellee at 27, United States v.

Danylo, No. 13-0570 (C.A.A.F. Nov. 13, 2013) (noting that, “[i]n

less than a year, Appellant ran afoul of [confinement] rules and

regulations 145 times”).

     Appellant does not argue any basis for weighing the third

interest in his favor, and the record does not show one.    There

is no indication of any loss of evidence or impact to case

preparation due to the delay.   See Doggett, 505 U.S. at 654.

     Appellant has not shown sufficient prejudice for a Sixth

Amendment violation.    While the Barker/Moreno factors of the

length of the delay and the assertion of the speedy trial right

weigh in Appellant’s favor, the reasons for the delay are

prosecution strategy, which was reasonable, and slow but

deliberate appellate review.    While Appellant served two months

of confinement in excess of what was actually adjudged, he has

not demonstrated prejudice that rises to the level of a Sixth

Amendment violation.    See Reed v. Farley, 512 U.S. 339, 353

(1994) (“A showing of prejudice is required to establish a

violation of the Sixth Amendment Speedy Trial Clause, and that

necessary ingredient is entirely missing here.”).   Thus,

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United States v. Danylo, No. 13-0570/AF


Appellant’s Sixth Amendment speedy trial rights were not

violated.

     Further, given the facts of this case, granting the remedy

Appellant requests -- dismissal with prejudice -- would be

disproportionate to any prejudice he did suffer.   Any prejudice

Appellant suffered does not rise to the level of a Sixth

Amendment violation, so he is not entitled to such a windfall.

     While we find no Sixth Amendment violations on the facts of

this case, the lengthy delay in resolving the Article 62 appeal

is quite troublesome.   The responsibility for timely decision

making at the Courts of Criminal Appeals lies with those courts

themselves.   Moreno, 63 M.J. at 137.   However, the

responsibility for providing the necessary resources for the

proper functioning of the appellate system, including the Courts

of Criminal Appeals, lies with the Judge Advocates General, who

are required by Congress to establish those courts and, within

the boundaries of judicial independence, to supervise them.

Articles 6(a), 66(a), UCMJ, 10 U.S.C. §§ 806(a), 866(a) (2012);

Moreno, 63 M.J. at 137; Diaz v. J. Advocate Gen. of the Navy, 59

M.J. 34, 40 (C.A.A.F. 2003).   We expect all concerned with these

matters to exercise the necessary “institutional vigilance” to

ensure timely action on appeals, particularly those required by

statute to be expedited.   See Diaz, 59 M.J. at 39–40.



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United States v. Danylo, No. 13-0570/AF


           B.   The Military Judge’s Speedy Trial Analysis

     Appellant also argues that the military judge erred in his

second trial by only considering the period of time consumed by

the Article 62 appeal in evaluating the second motion to

dismiss.   The military judge’s findings of fact covered the

entire period of delay from March 2010 through March 2011, but

he “focus[ed] only upon the delays incurred after the Article

62(a) appeal was brought by the government.”    The military judge

said he did so because (1) the CCA had already considered and

ruled on the delay preceding the Article 62 appeal “so this

point is moot”; and (2) the Government’s failure to prosecute

“should not be imputed upon or held against the AFCCA.”       The CCA

found that the military judge’s ruling was not clearly

erroneous, because the military judge had considered the entire

period of pretrial confinement even though his focus was on the

appellate review period.    Danylo, 2013 CCA LEXIS 334, at *5–*6,

2013 WL 1911222, at *2.

     Analysis of a Sixth Amendment speedy trial claim requires

consideration of the entire period of delay from arrest

(pretrial confinement) or preferral of charges until

commencement of trial on the merits.    United States v.

MacDonald, 456 U.S. 1, 6–8 (1982).     “That review spans a

continuum of process from review by the convening authority

under Article 60 . . . to review by a Court of Criminal Appeals

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United States v. Danylo, No. 13-0570/AF


under Article 66 . . . to review, in appropriate cases, by this

Court under Article 67.”    Diaz, 59 M.J. at 37.

     The military judge did consider the full period of

Appellant’s case since his positive drug test.     In doing so, the

military judge essentially applied to the first segment of

processing time the “law of the case” doctrine, which states

that a trial court is bound by the ruling of a higher appellate

court remanding the case.   United States v. Morris, 49 M.J. 227,

230 (C.A.A.F. 1998).   Thus, the military judge had to focus on

the period of delay unaddressed by the CCA, since the CCA had

already decided that there was no speedy trial issue in the pre-

appeal delay.

     Appellant argues that the military judge should have

considered the period of delay as one continuum, but this is

contrary to the reasoning of our case law.   In our speedy trial

jurisprudence, we break down the periods of delay, analyze the

reasons for each, and may express concern with some but not

other periods of delay.    See, e.g., Wilson, 72 M.J. at 352

(adopting the military judge’s separation of the pretrial delay

into distinct time periods requiring individual analysis);

Moreno, 63 M.J. at 136 (holding that in the post-trial context,

each time period is reviewed individually “because the reasons

for the delay may be different at each stage and different

parties are responsible for the timely completion of each

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United States v. Danylo, No. 13-0570/AF


segment”).   The military judge did not err in focusing on one

portion of the delay in his speedy trial analysis where the CCA,

by whose judgment the military judge was bound, had already

ruled on the other portion.

                          III.   Judgment

     The judgment of the United States Air Force Court of

Criminal Appeals is affirmed.




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United States v. Danylo, No. 13-0570/AF


     BAKER, Chief Judge, with whom ERDMANN, Judge, joins

(dissenting):

     I would reverse this case.     In my view, all four Barker v.

Wingo factors favor Appellant.    Barker v. Wingo, 407 U.S. 514,

530 (1972).    The second and fourth factors do not weigh heavily

in his favor, but they weigh in his favor nonetheless.    Thus, if

Barker v. Wingo is the test for a Sixth Amendment speedy trial

claim, and all four factors weigh in favor of Appellant, I do

not see how or why he should not prevail on the underlying Sixth

Amendment claim.   Therefore, I respectfully dissent.

                             Discussion

     The Court agrees that Barker v. Wingo provides the analytic

framework for addressing Appellant’s speedy trial claim.    Barker

invites consideration of four factors with no one factor being

dispositive:    (1) the length of delay; (2) the reasons for the

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

trial; and, (4) prejudice to the appellant.    Barker, 407 U.S. at

530, 533.   The factors are related and “must be considered

together with such other circumstances as may be relevant. . . .

[C]ourts must still engage in a difficult and sensitive

balancing process.”   Id. at 533.    The Court further agrees that

as provided in Article 62(b), Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 862(b) (2012), an Article 62, UCMJ, appeal,

such as this one, “shall, whenever practicable, have priority
United States v. Danylo, No. 13-0570/AF
 

over all other proceedings before [the Court of Criminal Appeals

(CCA)].”    “Priority” and “practicable” are not statutorily

defined, but surely their plain English meaning is clear -– the

case is supposed to move to the front of the line if feasible.

     Where the Court divides is on consideration of the second

and fourth factors.   First, I disagree on the extent to which

the second Barker factor -– the reasons for delay -- weighs

against Appellant.    The majority concludes that this factor is

“more neutral.”   United States v. Danylo, 73 M.J. __, __ (10)

(C.A.A.F. 2014) (internal quotation marks and citations

omitted).    It reaches this conclusion based on the determination

that the other “main source of delay -- the CCA’s delay on the

Article 62 appeal -- is unexplained.”   Id. at __ (9).    According

to the majority, the delay is unexplained, because “[d]espite

our significant concern about the processing time at the lower

court, we are reluctant to pierce the veil of the CCA’s

decision-making process and attempt to regulate the day-to-day

mechanics of the legal process assigned to the court.”    Id. at

__ (9-10).   I share this underlying concern, as first expressed

in United States v. Moreno, 63 M.J. 129, 137 (C.A.A.F. 2006).

     However, this Court need not pierce the deliberative veil

of the CCA or, for that matter, Monday morning quarterback the

day-to-day mechanics of the CCA, to see how this factor weighs

in Appellant’s favor.   One need only look to the military

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United States v. Danylo, No. 13-0570/AF
 

judge’s findings of fact.1                                     These findings of fact include the

following:

             The CCA granted the Government’s Article 62, UCMJ, appeal
              “170 days after the Government originally filed its Article
              62 appeal and 191 days after docketing with the CCA.”

             “108 cases were decided by the AFCCA between the submission
              of the Article 62 appeal (20 September 2010) and 9 March
              2011.”

             “Three of those cases were Article 62(a) appeals and 65
              were merits cases.” This was also the only case “in which
              the accused was in pretrial confinement.”

             “[S]ince the summer of 2010, the AFCCA has had four
              unfilled positions for appellate court judges (out of 9)
              and one unmanned position for a law clerk (out of 2).”

             Appellant and Government each moved for expedited
              processing three times while the case was pending at the
              CCA.

             On October 16, 2010, the Government “requested oral
              argument.” But the CCA did not respond until January 14,
              2011, when it ordered oral argument for January 20, 2011.

              In my view, Appellant should prevail on the second factor

based on these factual findings and the absence of any

counterbalancing reason or explanation for the delay.                                     For sure,

there might well be good reason why the CCA took the time it did

to decide this case, even with the extenuating factors of

pretrial confinement in the context of an underlying speedy
                                                            
1
  As the majority notes, “we give substantial deference to the
military judge’s findings of fact unless they are clearly
erroneous.” Danylo, 73 M.J. at __ (5) (internal quotation
marks, brackets, and citation omitted). The majority has not
concluded that any of the military judge’s findings are clearly
erroneous.
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United States v. Danylo, No. 13-0570/AF
 

trial claim.                             An appellate court might reasonably take six

months to debate and deliberate on a difficult or complex

question of law.2                                      However, in the absence of an appropriate

reason explaining the delay, and thus where the only facts that

are known are those stated above, factor two is not “more

neutral”; it favors Appellant.                                      Danylo, 73 M.J. at __ (10)

(internal quotation marks and citation omitted); see United

States v. Wilson, 72 M.J. 347, 353 (C.A.A.F. 2013) (“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.”).

              Moreover, several additional facts weigh in favor of

Appellant when considering the second factor on reasons for

delay.                 One, Appellant was held in pretrial confinement while

the Government appealed the military judge’s earlier ruling in

favor of Appellant’s speedy trial question.                                      Two, during this

period, Appellant asserted his right to a speedy trial and

timely appellate review, including priority review in the

context of Article 62, UCMJ.                                      In fact, the Government three

times joined Appellant in requesting expedited appellate review.
                                                            
2
     Indeed, as a general rule “an interlocutory appeal by the
Government ordinarily is a valid reason that justifies delay.”
United States v. Loud Hawk, 474 U.S. 302, 315 (1986). But
“delays in bringing the case to trial caused by the Government’s
interlocutory appeal may be weighed in determining whether a
defendant has suffered a violation of his rights to a speedy
trial.” Id. at 316.  
                                                                    4
 
United States v. Danylo, No. 13-0570/AF
 

Three, the applicable law on speedy trial is settled.                                        And

fourth, most importantly, the Government failed to staff the CCA

at adequate levels during the pendency of Appellant’s Article

62, UCMJ, appeal.                                       For sure, points one and two relate directly

to other Barker factors.                                       But they are relevant to factor two

addressing the reasons for delay.                                        Why?   Because in my view,

where an accused is in pretrial confinement and otherwise

asserts his right to priority Article 62, UCMJ, review,

unexplained delay is not neutral, it cuts in favor of Appellant.

Neither the Government nor the majority cite any facts that

counterbalance these facts and pull the second factor back to

neutral.

              The second divide between the majority and dissent is on

the question of whether two months of incarceration beyond one’s

point of adjudged confinement constitutes Barker prejudice,

where an Appellant otherwise prevails on the preceding three

factors.3                      In this regard, it is worth noting that the majority

and dissent agree on the facts:                                      “Appellant served two months of

confinement beyond his adjudged sentence.”                                        Danylo, 73 M.J. at

__ (11).


                                                            
3
  This question arises whether one adopts the majority’s or the
dissent’s analysis as the majority concludes before addressing
the prejudice prong of Barker that Appellant has prevailed on
factors one and three, with the second factor being “more
neutral.” Danylo, 73 M.J. at __ (10) (internal quotation marks
and citation omitted).
                                                                     5
 
United States v. Danylo, No. 13-0570/AF
 

     However, I disagree with the majority on what as a matter

of law is required to show Barker prejudice.    The Barker Court

recognized three interests that could give rise to Sixth

Amendment prejudice:   “(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.”   United States v. Mizgala, 61 M.J. 122, 129

(C.A.A.F. 2005) (quoting Barker, 407 U.S. at 532).    To be sure,

the Barker Court held that “[o]f 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.”   Id.

Accordingly, the majority concludes that “[w]hile the first

interest weighs in Appellant’s favor, the second and third weigh

against him.”   Danylo, 73 M.J. at __ (11).   The problem with

this conclusion is that while Barker highlights the gravity of

prejudice that impairs the defense, it does not do so at the

exclusion of the other two interests.

     Two months of excessive incarceration is not a long time

compared to other periods of incarceration found oppressive

under Barker nor is it oppressive in the sense that it is unduly

harsh.   It is nonetheless time spent above and beyond the actual

sentence received, and that is prejudicial where such

incarceration is based on unreasonable delay attributable to the



                                 6
 
United States v. Danylo, No. 13-0570/AF
 

government.4                            Thus, it is not logical to conclude that time

served in confinement beyond what was lawfully adjudged or

should have been served is not oppressive or prejudicial.

              Therefore, because I conclude that all four Barker factors

favor Appellant, he should prevail on his Sixth Amendment claim.




                                                            
4
  When delays in the processing of a case are in the course of
ordinary business and trial strategy, that delay cannot be held
against the government. United States v. Ewell, 383 U.S. 116,
120 (1966) (noting that “ordinary procedures for criminal
prosecution are designed to move at a deliberate pace. A
requirement of unreasonable speed would have a deleterious
effect both upon the rights of the accused and upon the ability
of society to protect itself.”). Article 62(c), UCMJ, is
consistent with this view and excludes “[a]ny period of delay
resulting from an appeal under this section . . . in deciding
any issue regarding denial of a speedy trial.” However, Article
62, UCMJ, does not purport to eliminate the Sixth Amendment
right to a speedy trial or give the government a pass on the
application of Barker v. Wingo.  
                                                               7
 
