UNITED STATES, Appellee
v.
Jose A. COSSIO, Airman Basic
U.S. Air Force, Appellant
No. 06-6005
CCA Misc. Dkt. No. 2006-02
United States Court of Appeals for the Armed Forces
Argued October 24, 2006
Decided January 10, 2007
ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and BAKER, J., joined.
STUCKY and RYAN, JJ., did not participate.
Counsel
For Appellant: Captain John S. Fredland (argued); Lieutenant
Colonel Mark R. Strickland.
For Appellee: Captain Donna S. Rueppell (argued); Colonel
Gerald R. Bruce, Lieutenant Colonel Robert V. Combs, and Major
Kimani R. Eason.
Military Judge: William A. Kurlander Jr.
This opinion is subject to revision before final publication.
United States v. Cossio, No. 06-6005/AF
Judge ERDMANN delivered the opinion of the court.
Airman Basic Jose A. Cossio was charged with attempting to
violate a lawful general regulation, disrespect toward a
superior commissioned officer, willful disobedience of a lawful
order, wrongfully creating and maintaining a false official web
page which solicited computer identifications, and wrongfully
pretending to be an employee acting under the authority of the
United States Air Force in violation of Articles 80, 89, 92, and
134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 880,
889, 892, 934 (2000). Prior to trial the military judge granted
Cossio’s motion to dismiss all charges with prejudice based on
the denial of Cossio’s speedy trial rights under Article 10,
UCMJ, 10 U.S.C. § 810 (2000).
The Government appealed this ruling pursuant to Article 62,
UCMJ, 10 U.S.C. § 862 (2000). The United States Air Force Court
of Criminal Appeals granted the Government’s appeal and set
aside the military judge’s dismissal. United States v. Cossio,
Misc. Dkt. 2006-02, 2006 CCA LEXIS 128, 2006 WL 1540671 (A.F.
Ct. Crim. App. May 10, 2006). We granted Cossio’s petition to
determine whether he had been denied his Article 10, UCMJ, right
to a speedy trial.1
1
On September 19, 2006, we granted review of the following
issue:
WHETHER THE MILITARY JUDGE ERRED IN GRANTING
APPELLANT’S MOTION TO DISMISS BASED ON A
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United States v. Cossio, No. 06-6005/AF
Article 10, UCMJ, ensures a servicemember’s right to a
speedy trial by providing that upon “arrest or confinement prior
to trial, immediate steps shall be taken to inform him of the
specific wrong of which he is accused and to try him or to
dismiss the charges and release him.” Cossio claims that, in
light of his demand for a speedy trial and the Government’s lack
of due diligence in bringing him to trial after he was confined,
the military judge correctly ruled that he had been denied his
Article 10, UCMJ, right to a speedy trial. He asks that we set
aside the decision of the Court of Criminal Appeals, which would
have the effect of reinstating the military judge’s dismissal of
the charges and specifications with prejudice. We conclude as a
matter of law that the Government exercised reasonable diligence
in bringing the charges to trial and that Cossio was not denied
his right to a speedy trial under Article 10, UCMJ.
Background
Prior to the charges which were the basis of this appeal,
Cossio was convicted at a general court-martial on unrelated
charges and sentenced to a bad-conduct discharge, confinement
for ten months, a fine, and reduction to airman basic. Cossio
was placed on appellate leave after he was released from
DENIAL OF HIS RIGHT TO A SPEEDY TRIAL UNDER
ARTICLE 10, UCMJ.
64 M.J. ___ (C.A.A.F. 2006).
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United States v. Cossio, No. 06-6005/AF
confinement on the earlier charges. While on appellate leave
and as a result of an investigation into a counterfeit website
purporting to be an official Hurlburt Field2 website, Cossio was
apprehended and placed into confinement on October 5, 2005. A
pretrial confinement hearing was held on October 13, 2005, and
the pretrial confinement hearing officer directed that Cossio
remain in confinement.
Computer equipment seized from Cossio was sent to the
Defense Computer Forensics Laboratory (DCFL) for analysis on
October 18, 2005. The DCFL conducted analysis of the equipment
including “imaging” the hard drives and forensically examining
the computer equipment. This analysis began on October 20,
2005, and lasted until January 12, 2006. DCFL completed and
dispatched its computer forensic report on January 17, 2006.
The Air Force Office of Special Investigations (AFOSI) completed
its report on January 25, 2006.
In the interim, draft charges were prepared and forwarded
to the Air Force Special Operations Command (AFSOC) judge
advocate’s office for review on October 26, 2005. On October
28, Cossio made a demand for a speedy trial. The AFSOC judge
advocate’s office completed its review of the draft charges on
November 10, 2005, and charges were preferred against Cossio on
2
Hurlburt Field is a U.S. Air Force Base located on the gulf
coast of Florida and is home to the U.S.A.F. Special Operations
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United States v. Cossio, No. 06-6005/AF
November 22. The Article 32, UCMJ, 10 U.S.C. § 832 (2000),
investigating officer was appointed on November 29, 2005. After
a defense-requested delay from December 5 through 13, 2005, the
Article 32, UCMJ, investigation was conducted on December 14 and
the report of investigation submitted on December 22. Charges
were referred to trial on December 30, 2005.
On January 3, 2006, the military judge held a Rule for
Courts-Martial (R.C.M.) 802 conference at which trial was set
for January 30. Because the parties could not agree on that
particular trial date, the chief circuit military judge
“directed” trial to begin on that date. Cossio remained in
continuous pretrial confinement for a total of 120 days until
the military judge dismissed the charges on February 2, 2006.
Discussion
Because this case came to the Court of Criminal Appeals by
way of a Government appeal under Article 62, UCMJ, that court
was limited to reviewing the military judge’s decision only with
respect to matters of law. Article 62, UCMJ; R.C.M. 908(c)(2).
The court was bound by the military judge’s findings of fact
unless they were clearly erroneous and that court could not find
its own facts or substitute its own interpretation of the facts.
See United States v. Mizgala, 61 M.J. 122, 127 (C.A.A.F. 2005).
This court reviews de novo the question of whether Cossio was
Command. See Hurlburt Field, http://www2.hurlburt.af.mil (last
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United States v. Cossio, No. 06-6005/AF
denied his right to a speedy trial under Article 10, UCMJ, as a
matter of law and we are similarly bound by the facts as found
by the military judge unless those facts are clearly erroneous.
Id.; United States v. Cooper, 58 M.J. 54, 58-59 (C.A.A.F. 2003).
In reviewing claims of a denial of a speedy trial under
Article 10, UCMJ, we do not demand “‘constant motion, but
reasonable diligence in bringing the charges to trial.’”
Mizgala, 61 M.J. at 127 (quoting United States v. Tibbs, 15
C.M.A. 350, 353,
35 C.M.R. 322, 325 (1965)); see also United
States v. Kossman,
38 M.J. 258, 262 (C.M.A. 1993). We inquire
whether the Government moved toward trial with “reasonable
diligence.” United States v. Birge,
52 M.J. 209, 211 (C.A.A.F.
1999). Brief inactivity is not fatal to an otherwise active,
diligent 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)).
Although Article 10, UCMJ, creates a more stringent speedy
trial standard than the Sixth Amendment, we have determined that
“the factors from Barker v. Wingo, 407 U.S. 514 (1972), are an
apt structure for examining the facts and circumstances
surrounding an alleged Article 10 violation.” Mizgala, 61 M.J.
at 127 (citing Cooper, 58 M.J. at 61); Birge, 52 M.J. at 212.
Those factors are: “(1) the length of the delay; (2) the
visited Jan. 10, 2007) (official Hurlburt Field website).
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United States v. Cossio, No. 06-6005/AF
reasons for the delay; (3) whether the appellant made a demand
for a speedy trial; and (4) prejudice to the appellant.”
Mizgala, 61 M.J. at 129 (citing Barker, 407 U.S. at 530).
Cossio argues that in light of his demand for a speedy
trial, the Government’s approach to his case cannot be
considered reasonable. He attributes delay to Government
“lollygag[ing]” in hope of securing additional charges. Cossio
claims that the Court of Criminal Appeals did not adhere to the
military judge’s findings of fact which were not clearly
erroneous and thus were binding on that court. He claims that
the Court of Criminal Appeals erroneously applied a less
deferential “common sense and knowledge of the ways of the
world” standard, thereby substituting its own perceptions for
the military judge’s binding factual findings.
The Government responds that the military judge erred in
his assessment of whether the charges proceeded to trial with
reasonable diligence. According to the Government, the
collection and processing of evidence, in particular the need
for forensic evaluation of the computer evidence, was
prioritized appropriately and not unreasonable. The Government
urges that the Court of Criminal Appeals applied the proper
clearly erroneous standard to the facts as found by the military
judge.
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United States v. Cossio, No. 06-6005/AF
We have reviewed the record and the military judge’s
thorough findings of fact and conclusions of law. His analysis
reflects great attention to the just resolution of the motion
before him. He is to be commended for his diligence in
resolving the motion and his concern for Cossio’s right to a
speedy trial. His findings that are factual in nature are amply
supported by the record and thus not clearly erroneous.
Nonetheless, we conclude that, as a matter of law, the facts as
found by the military judge do not reflect an absence of due
diligence constituting a denial of Cossio’s Article 10, UCMJ,
right to a speedy trial.
Initially we are confronted with a dispute between Cossio
and the Government concerning precisely what the military judge
found as fact, and thus binding, versus conclusionary or
interpretative statements. Military judges must be careful to
restrict findings of fact to things, events, deeds or
circumstances that “actually exist” as distinguished from “legal
effect, consequence, or interpretation.” Black’s Law Dictionary
628 (8th ed. 2004) (defining “fact”). We agree with the Court
of Criminal Appeals that the military judge mixed findings of
fact with “criticism”, “apparent belief” and “opinions.”
Cossio, slip op. at 5, 2006 CCA LEXIS 128, at *8-*9, 2006 WL
1540671, at *3. We therefore accept the military judge’s
findings of fact insofar as they establish the events and
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United States v. Cossio, No. 06-6005/AF
circumstances leading to Cossio’s trial and proceed to review de
novo whether those facts demonstrate a lack of reasonable
diligence under Article 10, UCMJ.
Length of 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 other factors that go into the
balance.’” United States v. Smith, 94 F.3d 204, 208-09 (6th
Cir. 1996) (quoting Barker, 407 U.S. at 530). Under the
circumstances of this case –- where the accused had made a
timely demand for a speedy trial and had been in continuous
pretrial confinement for 117 days when he moved for relief –-
the length of delay is sufficient to trigger the full Barker
inquiry.
Reasons for the Delay
The Government notes it was necessary to await forensic
examination of the computer equipment to assess the nature of
the evidence against Cossio and the true extent of his criminal
conduct. Cossio counters that once he had confessed, the
Government had all the evidence necessary to proceed to trial.
We conclude that it was not unreasonable for the Government to
marshal and weigh all evidence, including forensic evidence,
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United States v. Cossio, No. 06-6005/AF
before proceeding to trial. See R.C.M. 601(e)(2) Discussion
(“Ordinarily all known charges should be referred to a single
court-martial.”).
Forensic examination of the computer equipment seized from
Cossio may have provided critical evidence bearing directly on
whether the Government could sustain its burden of proof. In
addition, the record reflects that the DCFL devoted itself to
another high priority case at the same time Cossio’s computer
equipment was analyzed. While delay awaiting forensic evidence
may be unreasonable in another case, nothing in this case
suggests that DCFL improperly prioritized the other case being
analyzed at the same time or otherwise unreasonably delayed
forensic examination of the computer evidence in Cossio’s case.
Although the technical processing of charges against Cossio did
involve some delay, on balance the reason for the delay in this
case weighs in favor of the Government.
Speedy Trial Request
Cossio made a demand for a speedy trial twenty-three days
after he was apprehended. Thus, this factor weighs in Cossio’s
favor.
Prejudice
As we noted in Mizgala, the Supreme Court has established
the following test for prejudice in the speedy trial context:
Prejudice, of course, should be assessed in
the light of the interests of defendants
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United States v. Cossio, No. 06-6005/AF
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), quoted in Mizgala,
61 M.J. at 129.
Cossio has failed to assert or establish prejudice under
the Barker prejudice criteria. The military judge found:
Although there was pretrial confinement in
this case, there has been no evidence that
AB Cossio’s “anxiety and concern” has
exceeded the norm. There’s been no showing
that he wasn’t paid, after an early finance
glitch that was remedied. There’s been no
showing that the conditions of his pretrial
confinement have been unduly harsh. There’s
been no showing that his defense has been
impaired by the passage of time. Lastly,
upon conviction, he would be entitled to
receive administrative credit upon any
sentence to confinement for the days he
spent in pretrial confinement. Therefore,
there is no prejudice in this case beyond
that inherent in sitting in pretrial
confinement . . . .
The Court of Criminal Appeals also concluded that there was no
prejudice and we agree. The record clearly fails to establish
that Cossio suffered any Barker prejudice.
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Balancing of Barker Factors in an Article 10 Context
Considering the fundamental command of Article 10, UCMJ,
for reasonable diligence and balancing the Barker factors, we
conclude that Cossio was not denied his right to a speedy trial
under Article 10, UCMJ. Even though the technical processing of
the charges was not exemplary, the Government has the right (if
not the obligation) to thoroughly investigate a case before
proceeding to trial. Here, the record does not demonstrate that
DCFL improperly prioritized or otherwise unreasonably delayed
the forensic examination of the computer evidence, and there was
no particularized prejudice. The Government actually leaned
forward by getting a trial date before it had the completed DCFL
analysis or AFOSI report of investigation. We conclude that the
Government proceeded to trial with reasonable diligence under
the circumstances of this case and the Court of Criminal Appeals
did not err in deciding that Cossio was not denied his Article
10, UCMJ, right to a speedy trial.
Decision
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
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