                              IN THE CASE OF


                        UNITED STATES, Appellee

                                     v.

               Patrick A. MIZGALA, Airman First Class
                      U.S. Air Force, Appellant

                               No. 04-0382

                          Crim. App. No. 34822

       United States Court of Appeals for the Armed Forces

                        Argued October 13, 2004

                          Decided May 25, 2005

ERDMANN, J., delivered the opinion of the court, in which
GIERKE, C.J., and EFFRON and BAKER, JJ., joined. CRAWFORD, J.,
filed a separate opinion concurring in the result and dissenting
in part.

                                  Counsel

For Appellant: Major James M. Winner (argued); Colonel Beverly
B. Knott, Lieutenant Colonel Carlos L. McDade, Major Terry L.
McElyea, and Major Andrew S. Williams (on brief).

For Appellee: Major John C. Johnson (argued); Colonel LeEllen
Coacher and Lieutenant Colonel Robert V. Combs (on brief);
Lieutenant Colonel Gary F. Spencer.

Military Judge:    Gregory E. Pavlik


  This opinion is subject to revision before final publication.
United States v. Mizgala, No. 04-0382/AF


        Judge ERDMANN delivered the opinion of the court.

        Airman First Class Patrick A. Mizgala entered guilty pleas

to numerous offenses1 and was sentenced to a bad-conduct

discharge, confinement for nine months, forfeiture of all pay

and allowances, and reduction to the grade of E-1.    The

convening authority reduced the amount of forfeitures but

approved the balance of the sentence.    The United States Air

Force Court of Criminal Appeals affirmed the findings and

sentence.    United States v. Mizgala, ACM 34822 (A.F. Ct. Crim.

App. Jan. 23, 2004).

        Article 10, Uniform Code of Military Justice (UCMJ), 10

U.S.C. § 810 (2000), assures the right of a speedy trial to

military members by providing that “[w]hen any person subject to

this chapter is placed in 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.”

        Mizgala was initially held in pretrial confinement for 117

days.    His timely motion to dismiss for lack of a speedy trial


1
  Mizgala entered guilty pleas to attempted larceny, unauthorized
absence, unauthorized absence terminated by apprehension, two
specifications of wrongfully using cocaine, wrongfully using
marijuana, larceny of a motor vehicle, and larceny of personal
property in violation of Articles 80, 86, 112a, and 121, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. §§ 880, 886, 912a,
921 (2000), respectively.



                                   2
United States v. Mizgala, No. 04-0382/AF

under Article 10 was denied by the military judge and Mizgala

entered unconditional guilty pleas to all of the charges.    We

granted review to determine whether Mizgala’s unconditional

guilty pleas waived appellate review of the speedy trial motion

and, if not, whether Mizgala was denied his Article 10 right to

a speedy trial.2    We find that Mizgala’s unconditional guilty

plea did not waive his right to appellate review of his

litigated speedy trial motion, but find that his Article 10

right to speedy trial was not violated.

                               WAIVER

       The Air Force Court of Criminal Appeals found that Mizgala

waived consideration of his Article 10 claim by his

unconditional guilty plea.    In addition, that court held that

even if the speedy trial issue had not been waived, there was no

violation of Mizgala’s Article 10 rights.    After noting that the

2
    We granted review of the following issues:

                                 I.

       WHETHER APPELLANT’S ARTICLE 10, UCMJ, RIGHT TO A SPEEDY
       TRIAL WAS WAIVED BY AN UNCONDITIONAL GUILTY PLEA IF THE
       GOVERNMENT DID NOT BRING APPELLANT TO TRIAL WITH REASONABLE
       DILIGENCE, TRIAL DEFENSE COUNSEL LITIGATED THE MATTER AT
       TRIAL, AND APPELLANT DID NOT AFFIRMATIVELY WAIVE HIS RIGHT
       TO A SPEEDY TRIAL.

                                 II.

       WHETHER APPELLANT’S ARTICLE 10, UCMJ, RIGHT TO A SPEEDY
       TRIAL WAS VIOLATED IF THE GOVERNMENT DID NOT BRING
       APPELLANT TO TRIAL WITH REASONABLE DILIGENCE.



                                  3
United States v. Mizgala, No. 04-0382/AF

military judge incorrectly used a “gross negligence” standard,

the court concluded that the military judge’s error was not

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

Speedy Trial under the UCMJ

     Congress enacted various speedy trial provisions in the

UCMJ to address concerns about “the length of time that a man

will be placed in confinement and held there pending his trial”;

to prevent an accused from “languish[ing] in a jail somewhere

for a considerable length of time” awaiting trial or disposition

of charges; to protect the accused’s rights to a speedy trial

without sacrificing the ability to defend himself; to provide

responsibility in the event that someone unnecessarily delays a

trial; and to establish speedy trial protections under the UCMJ

“consistent with good procedure and justice.”   Uniform Code of

Military Justice:   Hearings on H.R. 2498 Before a Subcomm. of

the House Comm. on Armed Services, 81st Cong. 905-12, 980-983,

1005 (1949).   See United States v. Tibbs, 15 C.M.A. 350, 359, 35

C.M.R. 322, 331 (1965)(Ferguson, J., dissenting); United States

v. Hounshell, 7 C.M.A. 3, 7-8, 21 C.M.R. 129, 133-34 (1956).

     Where an accused is incarcerated pending disposition of

charges under the UCMJ, Congress has placed the onus on the

Government to take “immediate steps” to move that case to trial.

Article 10, UCMJ.   “Particularly, [Congress] indicated that




                                 4
United States v. Mizgala, No. 04-0382/AF

delay cannot be condoned if the accused is in arrest or

confinement.”   United States v. Wilson, 10 C.M.A. 337, 340, 27

C.M.R. 411, 414 (1959).

     While our cases have sometimes adopted different approaches

to Article 10 speedy trial issues, they have consistently

stressed the significant role Article 10 plays when

servicemembers are confined prior to trial.   We have referred to

the right to a speedy trial as a “fundamental right” of the

accused, United States v. Parish, 17 C.M.A. 411, 416, 38 C.M.R.

209, 214 (1968), and as “[u]nquestionably . . . a substantial

right,” Hounshell, 7 C.M.A. at 6, 21 C.M.R. at 132.    A number of

our earlier cases included speedy disposition of charges under

the concept of “military due process.”   United States v. Prater,

20 C.M.A. 339, 342, 43 C.M.R. 179, 182 (1971) (citing United

States v. Schlack, 14 C.M.A. 371, 34 C.M.R. 151 (1964)).       See

also United States v. Williams, 16 C.M.A. 589, 593, 37 C.M.R.

209 (1967).

     The Government urges us to find that an unconditional

guilty plea effectively waives a servicemember’s Article 10

speedy trial rights in all instances.    In support of their

argument the Government directs our attention to Sixth Amendment

jurisprudence, Rule for Courts-Martial (R.C.M.) 707(e), and the

Speedy Trial Act of 1974, Pub. L. No. 93-619, 88 Stat. 2070, and

points out that the speedy trial protection under each of those



                                 5
United States v. Mizgala, No. 04-0382/AF

provisions is waived by an unconditional guilty plea.   We will

examine each of these areas in turn.

     Sixth Amendment

     The Sixth Amendment to the United States Constitution

contains the constitutional guarantee to a speedy trial.3

Although the text of the amendment does not address waiver,

courts have held that the Sixth Amendment right is waived by a

voluntary guilty plea.   See Cox v. Lockhart, 970 F.2d 448, 453

(8th Cir. 1992)(“A voluntary plea of guilty constitutes a waiver

of all non-jurisdictional defects[,] . . . [and] the right to a

speedy trial is non-jurisdictional in nature.”) (citation

omitted); Tiemans v. United States, 724 F.2d 928, 929 (11th Cir.

1984) (“[A] guilty plea waives all non-jurisdictional defects

occurring prior to the time of the plea, including violations of

the defendant’s rights to a speedy trial and due process.”).

     We have consistently noted that Article 10 creates a more

exacting speedy trial demand than does the Sixth Amendment.

United States v. Cooper, 58 M.J. 54, 60 (C.A.A.F. 2003); United

States v. King, 30 M.J. 59, 62 (C.M.A. 1990) (citing United

States v. Powell, 2 M.J. 6 (C.M.A. 1976); United States v.

Marshall, 22 C.M.A. 431, 47 C.M.R. 409 (1973)).   Not only is the



3
  The Sixth Amendment provides, in pertinent part: “In all
criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial . . . .”



                                 6
United States v. Mizgala, No. 04-0382/AF

demand for a speedy trial under the UCMJ more exacting, by

virtue of Article 98, UCMJ, 10 U.S.C. § 898 (2000), unreasonable

delay in disposing of criminal charges in the military is

unlawful.4   See Powell, 2 M.J. at 8; United States v. Mason, 21

C.M.A. 389, 393, 45 C.M.R. 163, 167 (1972).    While the full

scope of this “more exacting” Article 10 right has not been

precisely defined by this court, it cannot be “more exacting”

and at the same time be “consistent” with Sixth Amendment

protections.

       Rule for Courts-Martial 707

       Rule for Courts-Martial 707 contains the speedy trial

provision in the Rules for Courts-Martial.    Rule for Courts-

Martial 707(e) provides that “a plea of guilty which results in

a finding of guilty waives any speedy trial issue as to that

offense.”    We have found, however, that the language of Article

10 is “clearly different” from R.C.M. 707 and have held that

Article 10 is not restricted by R.C.M. 707.    Cooper, 58 M.J. at

58-60 (holding that the protections of Article 10 extend beyond

arraignment); Kossman, 38 M.J. at 261 (“[I]n the area of


4
    Article 98, UCMJ, 10 U.S.C. § 898 (2000), provides:
       Any person subject to this chapter, who (1) is responsible
       for unnecessary delay in the disposition of any case of a
       person accused of an offense under this chapter; or (2)
       knowingly and intentionally fails to enforce or comply with
       any provision of this chapter regulating the proceedings
       before, during, or after trial of an accused; shall be
       punished as a court-martial may direct.



                                     7
United States v. Mizgala, No. 04-0382/AF

subconstitutional speedy trial, Article 10 reigns preeminent

over anything propounded by the President.”).

     The protections afforded confined or arrested

servicemembers under Article 10 are distinct and greater given

the nature of other speedy trial protections.   See United States

v. Reed, 41 M.J. 449, 451 (C.A.A.F. 1995) (listing sources for

the right to a speedy trial in the military); United States v.

Vogan, 35 M.J. 32, 33 (C.M.A. 1992) (also listing military

speedy trial right sources).   Rule for Courts-Martial 707(e)

therefore does not act as a limitation on the rights afforded

under Article 10.

     Speedy Trial Act

     Courts have uniformly held that a guilty plea “constitutes

a waiver of [an accused’s] rights under the [Speedy Trial] Act.”

United States v. Morgan, 384 F.3d 439, 442 (7th Cir. 2004).

While the Speedy Trial Act does not apply to offenses under the

UCMJ,5 there is a further distinction in the allocation of

burdens under the two statutes.   The Speedy Trial Act imposes

the burden of proof upon an accused to support a motion to

dismiss.   18 U.S.C. § 3162(a)(2)(2000).   Under Article 10, the




5
  18 U.S.C. § 3172 (2)(2000) (stating that “offense” as used in
the Speedy Trial Act specifically excludes “an offense triable
by court-martial”).



                                  8
United States v. Mizgala, No. 04-0382/AF

Government has the burden to show that the prosecution moved

forward with reasonable diligence in response to a motion to

dismiss.   United States v. Brown, 10 C.M.A. 498, 503, 28 C.M.R.

64, 69 (1959).   This distinction is additional proof of the

importance of Article 10 to the incarcerated servicemember.

      We therefore find nothing in the comparisons to the Sixth

Amendment, R.C.M. 707 or the Speedy Trial Act that would compel

our application of their speedy trial waiver rules to Article

10.   It falls to this court then to determine whether an

unconditional guilty plea waives a litigated Article 10 speedy

trial motion.

Article 10 Waiver Precedent

      Over the years our cases have taken different views as to

how or whether the right to a speedy trial under Article 10

could be waived.   These divergent views have manifested

themselves in cases involving forfeiture for failure to raise

the issue at trial and as well as in cases considering waiver of

the right due to an unconditional guilty plea.   In an early case

that considered Article 10 speedy trial rights, the court

adopted the view that the right to a speedy trial could be

forfeited for failing to raise the issue at trial:

           The right to a speedy trial is a personal
           right which can be waived. If the accused
           does not demand a trial or does not object
           to the continuance of a case at the
           prosecution's request or if he goes to trial



                                 9
United States v. Mizgala, No. 04-0382/AF

           without making any objection to the lapse of
           time between the initiation of the charges
           and the trial, he cannot complain of the
           delay after he has been convicted.

Hounshell, 7 C.M.A. at 6, 21 C.M.R. at 133 (citation omitted).

A short time later, however, Judge Quinn, the author judge in

Hounshell, wrote with regard to speedy trial in another

contested case that “[i]n the military, application of the rule

of waiver, where the accused is confined, has little to

recommend it.”   Wilson, 10 C.M.A. at 341, 27 C.M.R. at 415.

     Similarly, our cases involving waiver and unconditional

guilty pleas have vacillated.   In United States v. Rehorn, 9

C.M.A. 487, 488-89, 26 C.M.R. 267, 268-69 (1958), the court

stated, “It is a fundamental principle of Federal criminal law

that a plea of guilty waives all defects which are neither

jurisdictional nor a deprivation of due process of law.”

Subsequently in United States v. Schalck the court held “that

delay in preferring charges against the accused was not waived

by his failure to raise the issue at trial and by his plea of

guilty.”   14 C.M.A. at 375, 34 C.M.R. at 155.   See also United

States v. Goode, 17 C.M.A. 584, 587, 38 C.M.R. 382, 385 (1968)

(finding that guilty plea does not deprive accused of protection

afforded by Article 10); United States v. Cummings, 17 C.M.A.

376, 381, 38 C.M.R. 174, 179 (1968)(finding that a waiver of the

right to a speedy trial as part of a pretrial agreement is




                                10
United States v. Mizgala, No. 04-0382/AF

contrary to public policy); Tibbs, 15 C.M.A. at 353, 35 C.M.R.

at 325 (reiterating that accused who pleads guilty does not lose

protection accorded by Article 10).

      A short time later, the court again changed direction on

waiver in another case involving a guilty plea:   “We answer in

the affirmative the certified question . . . which asks whether

‘. . . an accused who does not object at the time of trial to a

delay in excess of three months in bringing him to trial will be

precluded from raising the issue at the appellate level . . .

.’”   United States v. Sloan, 22 C.M.A. 587, 590, 48 C.M.R. 211,

214 (1974) (citation omitted).   Recently, in United States v.

Birge, this court acknowledged the rule of waiver from Sloan but

declined to address whether an Article 10 speedy trial claim was

waived by a guilty plea under R.C.M. 707(e).   52 M.J. 209, 211-

12 (C.A.A.F. 1999).

      We take this opportunity to revisit our examination of

whether an Article 10 claim is waived by an unconditional guilty

plea or whether it may be reviewed by an appellate court in

cases where the accused unsuccessfully raises an Article 10

issue at trial and then enters an unconditional guilty plea.6     In



6
  The pivotal issue in this case involves the scope of the speedy
trial right set forth in Article 10, UCMJ, and is an issue of
statutory interpretation. Therefore, the discussion in the
dissent regarding the application of the Bill of Rights to
servicemembers is not pertinent to the present case.



                                 11
United States v. Mizgala, No. 04-0382/AF

view of the legislative importance given to a speedy trial under

the UCMJ and the unique nature of the protections of Article 10

discussed above, we believe that where an accused unsuccessfully

raises an Article 10 issue and thereafter pleads guilty, waiver

does not apply.   Such a rule for Article 10 rights properly

reflects the importance of a servicemember’s right to a speedy

trial under Article 10.   Preservation of the right to appeal

adverse Article 10 rulings is not only supported by the

congressional intent behind Article 10, it also maintains the

high standards of speedy disposition of charges against members

of the armed forces and recognizes “military procedure as the

exemplar of prompt action in bringing to trial those members of

the armed forces charged with offenses.”   United States v.

Pierce, 19 C.M.A. 225, 227, 41 C.M.R. 225, 227 (1970).    See also

United States v. Hatfield, 44 M.J. 22, 24 (C.A.A.F. 1996)

(“[T]he mandate that the Government take immediate steps to try

arrested or confined accused must ever be borne in mind.”).     A

fundamental, substantial, personal right -– a right that dates

from our earlier cases7 -- should not be diminished by applying

ordinary rules of waiver and forfeiture associated with guilty

pleas.



7
 United States v. Prater, 20 C.M.A. 339, 342, 43 C.M.R. 179, 182
(1971); United States v. Clay, 1 C.M.A. 74, 77, 1 C.M.R. 74
(1951).



                                12
United States v. Mizgala, No. 04-0382/AF

     We therefore hold that a litigated speedy trial motion

under Article 10 is not waived by a subsequent unconditional

guilty plea.   Thus, Mizgala’s unconditional guilty plea did not

waive his right to contest the military judge’s denial of his

Article 10 motion on appeal.8

     Having concluded that Mizgala did not waive review of his

Article 10 claim by entering an unconditional guilty plea, we

proceed to the merits of that claim.

                      ARTICLE 10 SPEEDY TRIAL

     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.”

Tibbs, 15 C.M.A. at 353, 35 C.M.R. at 325.   See also Kossman, 38

M.J. at 262; United States v. Johnson, 1 M.J. 101 (C.M.A. 1975).

Short periods of inactivity are not fatal to an otherwise active

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

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

(1961)).   Further, although Sixth Amendment speedy trial

standards cannot dictate whether there has been an Article 10

violation, the factors from Barker v. Wingo are an apt




8
  By virtue of our decision that Mizgala did not waive the
Article 10 issue, it is not necessary to address his alternative
claim of ineffective assistance of counsel.



                                13
United States v. Mizgala, No. 04-0382/AF

structure for examining the facts and circumstances surrounding

an alleged Article 10 violation.      Cooper, 58 M.J. at 61; Birge,

52 M.J. at 212.

     We review the decision of whether an accused has received a

speedy trial de novo as a legal question, giving substantial

deference to a military judge’s findings of fact that will be

reversed only if they are clearly erroneous.     Cooper, 58 M.J. at

57-59; United States v. Doty, 51 M.J. 464, 465 (C.A.A.F. 1999).

Facts Relevant to the Speedy Trial Determination

     The parties stipulated at trial to a chronology of events

relating to the pretrial processing of this case.     Additional

information was provided by testimony from the deputy staff

judge advocate and the former chief of military justice at

Sheppard Air Force Base (AFB).   Ultimately, the military judge

made findings of fact in support of his ruling on the speedy

trial motion.

     Mizgala was absent without leave (AWOL) on January 18 and

19, 2001.   Upon his return to military control, he confessed to

using cocaine while absent.   He went AWOL again on February 5,

and remained absent until February 28.     This second absence

ended because Mizgala became involved in an off-base incident

concerning an attempt to steal beer.     Upon his return, he

confessed that he used both cocaine and marijuana during this

absence.



                                 14
United States v. Mizgala, No. 04-0382/AF

     Mizgala was placed in pretrial confinement on February 28

and a pretrial confinement hearing was conducted three days

later on March 3.   The hearing officer determined that continued

pretrial confinement was warranted because Mizgala was a flight

risk and likely to engage in additional misconduct.

     On March 12, 2001, the Government received the results of a

urinalysis on a sample given when Mizgala entered pretrial

confinement.   Those results indicated the presence of both

cocaine and marijuana in Mizgala’s urine sample.   At the end of

March or early in April, the trial counsel prepared draft

charges and forwarded them to the staff judge advocate.    The

draft charge sheet was returned to add a charge for the attempt

to steal beer in the civilian community.   Trial counsel then

requested Security Forces to obtain the Wichita Falls Police

Department report pertaining to this incident.

     Of importance in this case is that during the time that

this case was processed, the legal office at Sheppard AFB was

operating out of a temporary facility because a fire had

destroyed their facility.   On April 13, 2001, the office moved

to a semipermanent facility.   On April 16, 2001, Mizgala made a

request for a speedy trial.    The deputy staff judge advocate

testified that because Mizgala was in pretrial confinement when

he made his demand for speedy trial, his case was already in a

priority status.



                                 15
United States v. Mizgala, No. 04-0382/AF

     The trial counsel requested the litigation packet

pertaining to the pretrial confinement urinalysis from the

laboratory at Brooks AFB, Texas, on April 23.   On May 10, a

police report pertaining to the attempted larceny of beer was

received from the Wichita Falls Police Department.    On May 14,

seventy-five days after the initiation of pretrial confinement,

charges were preferred against Mizgala.

     An investigating officer was appointed under Article 32,

UCMJ, 10 U.S.C. § 832 (2000), on May 22.   He conducted the

investigation on May 24 and completed the report of

investigation the following day.    The completed Article 32

investigation was forwarded to the defense on May 29.    The

record contains no indication that the defense made any

objections or filed any comments on the report of investigation.

In the interim, a memorandum indicating that Wichita Falls would

not prosecute the attempted larceny of beer was received by the

legal office.

     On June 5, the referral package and a related request for

immunity were forwarded by the Sheppard AFB legal office to the

staff judge advocate for the convening authority.    The R.C.M.




                               16
United States v. Mizgala, No. 04-0382/AF

406 pretrial advice9 was completed on June 20, and the case was

referred to trial the following day.   However, Mizgala was

rapidly approaching the 120-day limit contained in R.C.M. 707

and because the Government did not believe that he could be

tried before then, they released him from pretrial confinement

on June 21, 2001.   The following day, Mizgala once again went

AWOL.10

     After considering the stipulated chronology of events, two

witnesses, and arguments, the military judge denied the motion

to dismiss for violation of Article 10.    Although the military

judge found “inefficiencies throughout this process,” he

ultimately held:

          As such, at least as it applies to this
          case, I find that the government has
          exercised reasonable diligence insofar as it
          has complied with R.C.M. 707 and as that

9
   Prior to referral of charges to a general court-martial, the
staff judge advocate shall consider the charges and provide a
written and signed advice to the convening authority. R.C.M.
406(a), (b). That advice shall include the staff judge
advocate’s:
    (1) Conclusion with respect to whether each specification
         alleges an offense under the code;
    (2) Conclusion with respect to whether the allegation of each
         specification is warranted by the evidence indicated in
         the report of investigation (is there is such a report);
    (3) Conclusion with respect to whether a court-martial would
         have jurisdiction over the accused and the offense; and
    (4) Recommendation of the action to be taken by the convening
         authority.
R.C.M. 406(b).
10
    The period of delay from June 22 to the date of trial is not
at issue in this appeal.




                                17
United States v. Mizgala, No. 04-0382/AF

          equates to Article 10 in this particular
          circumstance. I do not believe that the
          inefficiencies mentioned equate to
          negligence that’s outlined in Kossman, and I
          believe that is a standard that effectively
          would have to amount to gross negligence.
          And I find that by a preponderance of the
          evidence.


When he later announced additional findings, the military judge

adhered to his speedy trial ruling and reiterated that “I must

essentially equate the R.C.M. standard with an Article 10

violation.”   He further stated that gross negligence was

required to support an Article 10 violation.   Also, while the

military judge’s ruling did reflect some consideration of the

Barker factors, it did so in a manner that indicated that the

military judge limited his consideration to a Sixth Amendment

speedy trial analysis.

                            DISCUSSION

     We agree with the Court of Criminal Appeals that the

military judge plainly erred in the manner in which he reviewed

Mizgala’s Article 10 motion.   His ruling was erroneous as a

matter of law in three regards.    First, Article 10 and R.C.M.

707 are distinct, each providing its own speedy trial

protection.   The fact that a prosecution meets the 120-day rule

of R.C.M. 707 does not directly “or indirectly” demonstrate that

the Government moved to trial with reasonable diligence as




                                  18
United States v. Mizgala, No. 04-0382/AF

required by Article 10.    See United States v. Edmond, 41 M.J.

419, 421 (C.A.A.F. 1995); Kossman, 38 M.J. at 260-61.

     Second, the military judge erred in determining that he was

required to find gross negligence to support an Article 10

violation in the absence of Government spite or bad faith.    An

Article 10 violation rests in the failure of the Government to

proceed with reasonable diligence.    A conclusion of unreasonable

diligence may arise from a number of different causes and need

not rise to the level of gross neglect to support a violation.

Kossman, 38 M.J. at 261.    Finally, the military judge erred by

limiting his consideration of the Barker v. Wingo factors to a

Sixth Amendment speedy trial analysis.    We have held that “it is

‘appropriate’ to consider those factors ‘in determining whether

a particular set of circumstances violates a servicemember’s

speedy trial rights under Article 10.’”    Cooper, 58 M.J. at 61

(quoting Birge, 52 M.J. at 212).

     Turning to the substance of Mizgala’s claim, our 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 appellant.   See Barker, 407 U.S. at 530.    See

also Birge, 52 M.J. at 212.    Applying those factors to Mizgala’s

case, we remain mindful that we are looking at the proceeding as



                                 19
United States v. Mizgala, No. 04-0382/AF

a whole and not mere speed:   “[T]he essential ingredient is

orderly expedition and not mere speed.”    United States v. Mason,

21 C.M.A. 389, 393, 45 C.M.R. 163, 167 (C.M.A. 1972) (quoting

Smith v. United States, 369 U.S. 1, 10 (1959)).

     The processing of this case is not stellar.   We share the

military judge’s concern with several periods during which the

Government seems to have been in a waiting posture:    waiting for

formal evidence prior to preferring charges and waiting for a

release of jurisdiction for an offense that occurred in the

civilian community.   There are periods evidencing delay in

seeking evidence of the off-post offense and seeking litigation

packages to support prosecution of the drug offenses.

Nevertheless, constant motion is not the standard so long as the

processing reflects reasonable diligence under all the

circumstances.   Our evaluation must balance the delay against

the reasons for these periods of delay (such as the need to

investigate offenses and obtain evidence), with the need to

coordinate investigation and jurisdiction with civilian

authorities.   Once these necessary steps were completed, the

Government moved expeditiously to refer the charges.

     As to the consideration of possible prejudice, we find no

material prejudice to Mizgala’s substantial rights.    In this

regard, we note the test for prejudice set forth by the Supreme

Court:



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United States v. Mizgala, No. 04-0382/AF

          Prejudice, of course, should be assessed in
          the light of the interests of defendants
          which the speedy trial right was designed to
          protect. This Court has identified three
          such interests: (i) to prevent oppressive
          pretrial incarceration; (ii) to minimize
          anxiety and concern of the accused; and
          (iii) to limit the possibility that the
          defense will be impaired. Of these, the most
          serious is the last, because the inability
          of a defendant adequately to prepare his
          case skews the fairness of the entire
          system.

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

117 days of pretrial confinement, which necessarily involves

some anxiety and stress, but there is no evidence in the record

that the conditions of that confinement were harsh or

oppressive.   Finally, there is no indication that his

preparation for trial, defense evidence, trial strategy, or

ability to present witnesses, on both the merits and sentencing,

were compromised by the processing time in this case.    Balancing

those factors identified by the Supreme Court, we find that

prejudice, if any, was minimal.

     We hold that Mizgala was not denied his Article 10 right to

a speedy trial and, after our de novo review of the speedy trial

issue, we find there was no prejudice from the military judge’s

application of an erroneous standard of law.

                             DECISION

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.



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United States v. Mizgala, No. 04-0382/AF


     CRAWFORD, Judge (dissenting in part and concurring in the

result):

     While the majority notes that Article 10, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. § 810 (2000), is a “more

exacting” right, it overlooks the history behind the UCMJ

provisions of the Manual for Courts-Martial, United States (2002

ed.)(MCM), and mainstream jurisprudence in this area.    Thus, I

respectfully dissent from the majority opinion that an

unconditional plea of guilty does not waive Appellant’s rights

to a speedy trial whether asserted under the Sixth Amendment,

the UCMJ, or the MCM.   The congressional history underlying

Article 10 has not altered what a majority of the courts have

held concerning unconditional guilty pleas.

     History Behind the UCMJ.   When Congress passed the UCMJ in

1950, there was some question as to the applicability of the

Bill of Rights to members of the Armed Forces.   Fifty-five years

later, the Supreme Court still has never expressly held that the

Bill of Rights applies to servicemembers.   In United States ex

rel. Innes v. Crystal, 131 F.2d 576, 577 n.2 (2d Cir. 1943)

(citing Ex parte Quirin, 317 U.S. 1 (1942)), the court stated,

“The Fifth and Sixth Amendments are, of course, inapplicable to

courts-martial.”   This question about the application of the
United States v. Mizgala, No. 04-0382/AF


Bill of Rights to the military resulted in Congress passing

Articles 10, 27,1 31,2 44,3 46,4 and 63,5 UCMJ.

         Early in the Court’s history, when examining the question

of speedy trial, it “bottom[ed] those [constitutional] rights

and privileges” on the Due Process Clause of the Fourteenth

Amendment rather than on the specific provisions in the Bill of

Rights.      United States v. Clay, 1 C.M.A. 74, 77, 1 C.M.R. 74, 77

(1951).      In one of our earlier cases, United States v.

Hounshell, this Court stated, “[t]he United States Constitution

guarantees to a person protected under federal law ‘the right to

speedy and public trial.’             Article 10 of the Uniform Code . . .

reiterates that guarantee . . . .”             7 C.M.A. 3, 6, 21 C.M.R.

129, 132 (1956)(quoting U.S. Const. amend. VI).            Indeed, the

legislative history behind Article 10 strongly suggests it was

intended only to remedy delays concerning pretrial restraint.

See Uniform Code of Military Justice:             Hearings on H.R. 2498

Before a Subcomm. of the House Comm. on Armed Services, 81st

Cong. 905-12 (1949)[hereinafter UCMJ Hearings].             That

subcommittee viewed Article 10 solely as a tool to terminate

lengthy pretrial confinement.            Id.



1
    10   U.S.C.   §   827   (2000).
2
    10   U.S.C.   §   831   (2000).
3
    10   U.S.C.   §   844   (2000).
4
    10   U.S.C.   §   846   (2000).
5
    10   U.S.C.   §   863   (2000).

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United States v. Mizgala, No. 04-0382/AF


        The right to counsel guaranteed under Article 27 was not

applicable through the Bill of Rights to state proceedings until

1963.    It was not until that year, in Gideon v. Wainwright, 372

U.S. 335 (1963), that the Supreme Court extended the right to

appointment of counsel in state cases to all indigent felony

defendants.    Prior to that, Congress had ensured some right to

counsel for military members by passing Article 27, but that

right was limited to general courts-martial.    Congress extended

this right to special courts-martial in 1968.    Of course, it is

not enough to have counsel; counsel must zealously represent the

accused, starting with a full investigation of the case.     See,

e.g., House v. Balkcom, 725 F.2d 608 (11th Cir. 1984).     The

right to counsel is one of the most valuable rights that a

defendant possesses, but certain decisions are for the defendant

to control while the remainder are left with counsel.     The

Supreme Court has recognized that counsel has the authority to

manage most aspects of the defense without obtaining the

defendant’s approval.    See, e.g., Nixon v. Florida, 125 S. Ct.

551 (2004).    In New York v. Hill, the Supreme Court stated:

“[D]efense counsel’s agreement to a trial date outside the time

period required by [the Interstate Agreement on Detainers] bars

the defendant from seeking dismissal because trial did not occur

within that period.”     528 U.S. 110, 111 (2000).   Moreover, the

Hill Court said, “only counsel is in a position to assess the


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United States v. Mizgala, No. 04-0382/AF


benefit or detriment of the delay to the defendant’s case,” Id.

at 115, and “only counsel is in a position to assess whether the

defense would even be prepared to proceed any earlier.”    Id.

     Feeling that the self-incrimination clause did not apply to

military members, Congress enacted Article 31 to protect the

right against self-incrimination in the military setting.

Additionally, in enacting Article 31(b), Congress was concerned

that the interrogation environment in the military and the

interplay between military relationships and following orders

deserved protection.   See UCMJ Hearings at 984-85.    As this

Court stated, “[u]ndoubtedly it was the intent of Congress in

this division of the Article to secure to persons subject to the

Code the same rights secured to those of the civilian community

under the Fifth Amendment to the Constitution of the United

States -- no more and no less.”   United States v. Eggers, 3

C.M.A. 191, 195, 11 C.M.R. 191, 195 (1953).    In his testimony on

the UCMJ, Mr. Felix Larkin, Assistant General Counsel in the

Office of the Secretary of Defense, expressed the desire to

“retain the constitutional protections against self-

incrimination.”   UCMJ Hearings at 988.    The UCMJ was enacted to

ensure those constitutional rights because of the deep division

as to the applicability of those rights in different factual

scenarios.   The commentary to Article 31(a) also underscores the

intent to “extend [the] privilege against self-incrimination to


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United States v. Mizgala, No. 04-0382/AF


all persons under all circumstances.”    H.R. Rep. 81-491 at 19

(1949).

     Likewise, Congress enacted Article 44 because “the

application of [the Fifth Amendment] is in doubt . . . . The

matter could be clarified by extending the protection of the

fifth amendment rather than granting protection by means of

different or new statutory enactment.”   Uniform Code of Military

Justice:   Hearings on § 857 and H.R. 4080 Before a Subcomm. of

the Senate Comm. on Armed Services, 81st Cong. 111 (1949)

(statement of Sen. Pat McCarran, Chairman, Senate Judiciary

Comm.).    House commentary on the UCMJ observed:   “The question

is whether the constitutional provision of jeopardy follows a

person who enters military service.”    H.R. Rep. 81-491 at 23.

     As to the double jeopardy provision, this Court reiterated

the theme that the Constitution did not apply, stating, “The

constitutional privilege against former jeopardy, applicable to

the civilian community, is granted to offenders against military

law by Article 44 . . . .”   United States v. Ivory, 9 C.M.A.

516, 519-20, 26 C.M.R. 296, 299-300 (1958).

     In the past, this Court applied a due process examination

before it had announced that the Bill of Rights applies “except

those [rights] which are expressly or by necessary implication

inapplicable.”   United States v. Jacoby, 11 C.M.A. 428, 430-31,

29 C.M.R. 244, 246-47 (1960).   Because the Supreme Court has not


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United States v. Mizgala, No. 04-0382/AF


held that the Bill of Rights applies to servicemembers, our

Court, in its early years, did not rely upon speedy trial

rights.

       The question of the application of the Fourth Amendment as

to the right to privacy,6 the self-incrimination clause of the

Fifth Amendment,7 speedy trial,8 or the right of confrontation

cross-examination under the Sixth Amendment9 is moot based on

congressional and presidential actions.

       MCM Provision.    The majority also overlooks R.C.M. 707(e),

which states that:      “Except as provided in R.C.M. 910(a)(2)

[conditional pleas], a plea of guilty which results in a finding

of guilty waives any speedy trial issue as to that offense.”

(Emphasis added.)    This provision by the President does not

violate any constitutional provision -- there is certainly none

prohibiting this waiver, and many federal courts provide for

such a waiver.

       Because the majority overlooks mainstream jurisprudence and

the MCM provisions, I respectfully dissent.




6
    Military Rule of Evidence (M.R.E.) 311-317.
7
    Article 31, UCMJ; M.R.E. 301-306.
8
    Article 10, 33; R.C.M. 707.
9
    Article 46, UCMJ; R.C.M. 702, 703; M.R.E. 611.


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