United States v. Cooley , 2016 CAAF LEXIS 351 ( 2016 )

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee/Cross-Appellant
v.
Christopher S. COOLEY, Fireman Apprentice (FA)
United States Coast Guard, Appellant/Cross-Appellee
Nos. 15-0384 & 15-0387
Crim. App. No. 1389
Argued October 6, 2015—Decided May 6, 2016
Military Judges: Christine N. Cutter, Lewis T. Booker, Daniel J.
Daugherty, and Michael E. Tousley
For Appellant/Cross-Appellee: Lieutenant Philip A. Jones
(argued); Commander Matthew J. Fay (on brief).
For Appellee/Cross-Appellant: Stephen P. McCleary, Esq.
(argued); Lieutenant Commander Amanda M. Lee and
Lieutenant Daniel Velez (on brief); Lieutenant Lars T.
Okmark.
Judge RYAN delivered the opinion of the Court, in which
Chief Judge ERDMANN and Judges STUCKY, OHLSON,
and DIAZ joined.
_______________
Judge RYAN delivered the opinion of the Court.1
The evolution of this case unfolds like a messy primer on
military justice procedure. One group of charges and
specifications (the “First Charges”) was referred and then
dismissed without prejudice for a violation of the time period
set forth in Rule for Court-Martial (R.C.M.) 707 (“Cooley I”).2
1 Judge Albert Diaz, of the United States Court of Appeals for
the Fourth Circuit, sat by designation, pursuant to Article 142(f),
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 942(f)
(2012).
2 The “First Charges” included one specification of attempt to
commit a lewd act upon a child, two specifications of violating a
lawful order, two specifications of solicitation of sexually explicit
videos from a minor, and one specification of possessing “one or
more sexually suggestive visual depictions of what appears to be a
United States v. Cooley, 15-0384/CG & 15-0387/CG
Opinion of the Court
The First Charges, in essentially the same format, were
then re-referred and dismissed by the convening authority
(“Cooley II”).3 The First Charges, along with four additional
specifications (the “New Charges”), were referred together to
a new court-martial (“Cooley III”). One of the new
specifications, Specification 3 of Charge II alleging a
violation of Article 92, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 892 (2012), was dismissed by the
convening authority prior to trial.4 Thus, the United States
Coast Guard Court of Criminal Appeals (CGCCA) had no
jurisdiction to consider it and erred in reviewing it. See
Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2012); Article 67(c),
UCMJ, 10 U.S.C. § 867(c) (2012); Center for Constitutional
Rights v. United States, 72 M.J. 126, 128 (C.A.A.F. 2013)
(citing Clinton v. Goldsmith, 526 U.S. 529, 533–34 (1999)).
Two additional specifications (“Additional Charge”) of
attempted inducement of a minor for the purpose of
producing a sexually explicit picture transmitted through
interstate commerce in violation of Article 134, UCMJ, 10
U.S.C. § 934 (2012), were also added but later dismissed by
the military judge, and these specifications are also not
before us. The remaining new charge, Specification 2 of
Charge IV — the only one of the New Charges at issue in
this opinion — was not, in fact, “new” at all, but rather
based entirely on information the Government had when it
referred charges in Cooley I. Throughout this time,
minor,” in violation of Articles 80, 92, 120, 134, UCMJ. However,
as relevant for our purposes, the First Charges referenced
throughout our opinion do not include one specification of
violating a lawful order and one specification of possessing “one or
more sexually suggestive visual depictions of what appears to be a
minor” because they were dismissed and withdrawn pursuant to a
pretrial agreement.
3 The propriety of these actions is not before us.
4 Specification 1 of Charge II, violation of a lawful order, and
Specification 1 of Charge IV, possession of sexually suggestive
images of apparent minors, were not before the CCA.
2
United States v. Cooley, 15-0384/CG & 15-0387/CG
Opinion of the Court
Appellant5 sat in pretrial confinement for a total of 289
continuous days despite five formal speedy trial demands.
A military judge sitting as a general court-martial
convicted Appellant, pursuant to his conditional pleas (he
preserved his right to appeal claimed violations of R.C.M.
707 and Article 10, UCMJ), of one specification of
attempting a lewd act with a child of more than twelve years
but less than sixteen years, two specifications of attempting
to wrongfully commit indecent conduct, one specification of
failing to obey an order, and one specification of wrongfully
and knowingly possessing child pornography, in violation of
Articles 80, 92, and 134, UCMJ, 10 U.S.C. §§ 880, 892, 934
(2012), respectively. Appellant was sentenced to seven years
of confinement, forfeiture of all pay and allowances,
reduction to the pay grade of E–1, and a bad-conduct
discharge. Pursuant to a pretrial agreement (PTA), the
convening authority approved the sentence and suspended
all confinement in excess of fifty months.
On review, the CGCCA dismissed all charges and
specifications against Appellant. United States v. Cooley, No.
1389, 2014 CCA LEXIS 936, at *26–27 (C.G. Ct. Crim. App.
Dec. 24, 2014) (unpublished). The CGCCA dismissed with
prejudice the First Charges for violating Article 10, UCMJ,
10 U.S.C. § 810 (2012), and purported to dismiss both new
charges without prejudice for violating the time limitations
established by R.C.M. 707. 2014 CCA LEXIS 936, at *16–18,
*26–27. The following issues are before the Court:
CERTIFIED ISSUES
Whether the Coast Guard Court of Criminal
Appeals erred by finding that pre-trial
confinement can serve as per se prejudice for
purposes of determining a violation of Article
10, Uniform Code of Military Justice.
Whether the facts and circumstances of
Appellee’s case, considering the factors set
out in Barker v. Wingo, 407 U.S. 514, 530
(1972) and applied to review of Article 10 by
5 In accordance with this Court’s rules and practice for
hearings when both parties seek review in this Court, “the
accused shall be deemed the appellant.” C.A.A.F. R. 40(b)(2).
3
United States v. Cooley, 15-0384/CG & 15-0387/CG
Opinion of the Court
United States v. Birge, 52 M.J. 209, 212
(C.A.A.F. 1999), amount to a violation of
Article 10, Uniform Code of Military Justice.
GRANTED ISSUE
Whether the Government violated
Appellant’s rights under Article 10, UCMJ,
when the Government possessed key
evidence against Appellant on July 20, 2012,
and February 5, 2013, yet made no move to
prosecute Appellant for these offenses until
June of 2013, despite his pretrial
confinement from December 20, 2012.
We hold as follows. First, the CGCCA was incorrect when
it concluded that pretrial confinement is per se prejudicial
for purposes of determining whether there is an Article 10,
UCMJ, violation, and we answer that certified question in
the affirmative. Second, the record does not support the
military judge’s findings of fact and conclusion that the
Government met its burden to show due diligence during the
time period between the dismissal of Cooley I and trial in
Cooley III. Having carefully reviewed the record and
weighed the other factors from Barker v. Wingo, 407 U.S.
514 (1972), we also answer the second certified question in
the affirmative. Finally, with respect to the Granted Issue,
we note that the Government did not certify the CGCCA’s
dismissal of the child pornography specification without
prejudice after applying the “substantial information” rule to
R.C.M. 707, but see United States v. Wilder, 75 M.J. 135
(C.A.A.F. 2016), and that ruling by the CGCCA remains the
law of the case. United States v. Parker, 62 M.J. 459, 464
(C.A.A.F. 2006). However, Appellant was not confined for
that charge, and we decline his invitation to extend Article
10, UCMJ, to an offense for which he was not confined, cf.
United States v. Nash, 5 M.J. 37, 38 (C.M.A. 1978); United
States v. Mladjen, 19 C.M.A. 159, 161, 41 C.M.R. 159, 161
(1969). Accordingly, we answer the Granted Issue in the
negative.
However, the fact the Government had substantial
information about the New Charge as of March 1, 2013, but
declined to refer it until Cooley III after the First Charges
were dismissed for violating Appellant’s speedy trial rights
4
United States v. Cooley, 15-0384/CG & 15-0387/CG
Opinion of the Court
under R.C.M. 707 is not irrelevant for purposes of
determining whether there was a violation of Article 10,
UCMJ, as to the charges for which Appellant was actually
confined. The Government’s belated decision to prefer a
charge it could have brought months earlier, occasioning an
additional 135 days of delay, weighs heavily against the
Government in considering whether it proceeded with
reasonable diligence for purposes of Article 10, UCMJ. While
a dismissal under R.C.M. 707 resets the speedy trial clock
for its purposes, see R.C.M. 707(b)(3)(A), such dismissal is
neither carte blanche for the Government to overlook its
obligation to proceed with reasonable diligence under Article
10, UCMJ, nor an invitation to take a second bite at
perfecting a case and cause further delay based on
information previously known to the Government. The
decision of the CGCCA is affirmed in part and reversed in
part.
I. BACKGROUND
A. INITIAL INVESTIGATION
On July 20, 2012, Appellant, who was stationed in
Juneau, Alaska, confessed to Special Agent (SA) James
Renkes of the Coast Guard Investigative Service (CGIS) that
over the course of several years, he had sought out sexually
explicit photographs and videos of minors, solicited and
received sexually explicit photographs from several minors
over the internet, had sexual encounters with minors, and
that he continued to have urges to view sexually explicit
pictures and videos of minor boys. Some minors were
identified by first name only, and they resided in a variety of
states and with no identified address. Appellant told SA
Renkes that he had deleted all associated images and emails
as well as his online chat names. Appellant was ordered into
pretrial confinement that day, and over thirty of his
electronic devices were seized. On July 27, 2012, Appellant
was released from pretrial confinement and immediately
placed under pretrial restriction. In August 2012,
Appellant’s restriction was lifted except for certain
conditions, including an order to refrain from all contact
with minors. On September 7, 2012, Appellant’s electronic
devices were sent to the CGIS Electronics Crime Section
(CGIS ECS), and on October 1, 2012, the Government
5
United States v. Cooley, 15-0384/CG & 15-0387/CG
Opinion of the Court
received a preliminary analysis indicating Appellant’s
iPhone contained “contraband” in the form of depictions of
child nudity. Additionally, data was sent to the National
Center for Missing and Exploited Children Law
Enforcement Services on November 14, 2012, but a January
2013 CGIS ECS report indicated that none of Appellant’s
images matched images in that database.
On December 20, 2012, Appellant was again placed into
pretrial confinement at the Naval Consolidated Brig,
Miramar. Although the immediate reason provided was that
Appellant had contacted a minor, the confinement order
cited probable cause to believe that Appellant had violated
not only Article 92, UCMJ, by failing to obey the no-contact
order, but also violated Article 120, UCMJ, for indecent
liberties with a child and indecent acts with a child.
Appellant made speedy trial demands on three occasions
around this time: November 12, 2012; December 5, 2012;
and January 25, 2013.
The First Charges were preferred against Appellant on
February 19, 2013. An Article 32, UCMJ, 10 U.S.C. § 832
(2012), investigation was held on March 5, 2013 at Brig,
Miramar. In the Article 32, UCMJ, report, the investigating
officer found that based on Appellant’s confession and SA
Renkes’ testimony and identification of selected images from
Appellant’s iPhone from the January 2013 CGIS ECS
report,6 there were also reasonable grounds to support
referral of a specification of possessing apparent child
pornography in violation of Article 134, UCMJ. After
reviewing the first report, SA Renkes requested that CGIS
ECS perform a secondary analysis in order to confirm the
presence of child pornography with respect to two image
files.7 The secondary analysis was contained in a March 1,
2013, CGIS ECS report, which determined that these
images contained possible child pornography. Although a
6 The January 2013 ECS report led to the discovery of over
300 images — 205 of which depicted what appeared to be persons
under the age of eighteen in various stages of undress.
7 SA Renkes testified that the analysis on the additional two
requested images was initially completed in January but a second
confirmatory analysis was warranted.
6
United States v. Cooley, 15-0384/CG & 15-0387/CG
Opinion of the Court
CGIS Memorandum of Activity (MOA), also dated March 1,
2013, indicated that (1) analysis of all media and images
seized from Appellant was “completed,” (2) that two images
were suspected child pornography, and (3) that images
submitted to the National Center for Missing and Exploited
Children Law Enforcement Services Portal resulted in no
matches, the report was not submitted at the Article 32,
UCMJ, investigation. On March 18, 2013, the convening
authority referred charges to a general court-martial, Cooley
I, but did not add a specification of possessing actual child
pornography. In March 2013, the military judge ordered the
parties to prepare a trial schedule. At that time, the
Government agreed with the defense on an April 3, 2013,
arraignment date and on trial dates convenient for the
defense. While a date was not set for the Cooley I trial, it
was understood that trial on the First Charges was ready to
commence, as evidenced by the defense’s requested trial
dates of June 5 through June 7, and reference to the possible
trial date of July 23, 2013. Cooley, 2014 CCA LEXIS 936, at
*13. Furthermore, in its brief before this Court, the
Government conceded that it “was in a position after the
[April 3, 2013,] arraignment to bring the accused to trial a
short time later.”
Formal service of the First Charges occurred on April 3,
2013. On that same day, Appellant was formally arraigned
despite his Article 35, UCMJ, objection.8 On April 17, 2013,
Appellant requested expert assistance to help the defense
investigate and explain psychological issues bearing on
Appellant’s rehabilitative potential, and the military judge
ordered appointment of such an expert on May 16, 2013,
noting that Appellant conceded that an expert from the
Armed Forces Center for Child Protection (“AFCCP”) would
serve his needs.
Appellant filed a motion to dismiss Cooley I for violations
of his right to a speedy trial under both R.C.M. 707 and
Article 10, UCMJ. On May 23, 2013, a newly detailed Naval
8 Article 35, UCMJ, 10 U.S.C. § 835 (2012), provides an
accused in a general court-martial case a right to a five-day delay
between the service of charges and any Article 39(a), UCMJ,
session or trial proceeding.
7
United States v. Cooley, 15-0384/CG & 15-0387/CG
Opinion of the Court
military judge held that the April 3, 2013, arraignment was
a legal nullity because it was held over Appellant’s objection.
Furthermore, because Appellant had been continuously
confined for 144 days and the delay exceeded the 120 days
permitted by R.C.M. 707, the military judge dismissed the
First Charges without prejudice. The Government
immediately re-preferred the same charges (Cooley II) on
May 23, 2013, which the convening authority dismissed
without prejudice on June 14, 2013. On June 6, 2013, the
defense filed their fourth formal request for a speedy trial.
On June 14, 2013,9 as relevant to our analysis, the
Government re-preferred the First Charges along with the
New Charges, which included a breach of a no-contact order
in violation of Article 92, UCMJ, and possession of child
pornography in violation of Article 134, UCMJ. The only one
of the New Charges relevant for our purposes, the child
pornography charge, consisted of three images, including the
two image files confirmed in the March CGIS ECS Report,
and one image file that SA Renkes had confirmed some time
after the March CGIS ECS report. By then, Appellant had
been continuously confined for 177 days. Appellant renewed
his request for expert assistance on July 9, 2013, but the
Government denied that request, forcing Appellant to
relitigate an issue that had previously been resolved in his
favor during Cooley I.
A second Article 32, UCMJ, investigation commenced on
July 22, 2013, at Brig, Miramar. As relevant to the issues
before this Court, this limited investigation concerned the
new specification of child pornography contained in the New
Charges, not the First Charges. While the Government
asserts that the additional specification of child pornography
was based on an ongoing analysis of hundreds of images
from Appellant’s electronic devices, the record contains no
investigative reports, memorandum of activity, or additional
9 The third military judge incorrectly found that June 17 was
the date of re-preferral of the First Charges with the additional
specifications; the charge sheet indicates that it was June 14.
8
United States v. Cooley, 15-0384/CG & 15-0387/CG
Opinion of the Court
analysis of the electronic devices after the March 1, 2013,
CGIS MOA.10
The First Charges (or charges nearly identical to them)
and the New Charges were referred to trial by general court-
martial, Cooley III, on August 7, 2013.11 During this time,
Appellant again filed a formal request for speedy trial, his
fifth and final, on August 19, 2013. A pretrial order set an
arraignment date of August 26, a motions due date of
August 22, and a trial date of August 26, 2013, in either San
Diego, California, or Juneau, Alaska. The Government later
requested continuances of both the arraignment and trial
dates, due primarily to logistical issues. The military judge
granted the Government’s requests, and Appellant was not
arraigned until September 10, 2013.
On September 11, 2013, in response to Appellant’s
renewed motion for the appointment of an expert, the
military judge ordered the Government to provide the expert
assistance from the AFCCP. The military judge concluded
that the necessity of an expert was apparent in “the need for
psychiatric or psychological assistance to investigate, and if
necessary, explain to the fact-finder issues that might
properly bear on the accused’s rehabilitative potential. This
would include the accused’s psychosocial background and
current diagnosis.” The Government delayed providing an
expert until September 20, 2013, fourteen days before trial.
Moreover, the expert it provided was not from AFCCP, and
by the expert’s own admission, his normal practice did “not
10 The record alludes to an additional review by SA Renkes
after receipt of the March CGIS ECS Report, in which SA Renkes
confirmed a third image of child pornography that served as a
basis for the New Charge. However, there is no indication that
this image was not in the two previous CGIS ECS reports, and no
relevant facts or timeline is given for the review. See Cooley, 2014
CCA LEXIS 936, at *24 (“The only date for which we have
evidence is March: after the special agent received the report on 5
March, he conducted further investigation. Such investigation
could have been completed later in March, for all the evidence
shows, giving the Government substantial information on which
to base preferral of the specification before the end of March.”).
11 The two specifications under the Additional Charge were
referred at this time.
9
United States v. Cooley, 15-0384/CG & 15-0387/CG
Opinion of the Court
include sex offender treatment.” The expert was unable to
meet with Appellant until September 30, four days before
trial, and was unable to administer at least six sexual
offender-related tests because he did not have the time to do
them. The expert was not called at trial.
Trial in Cooley III commenced on October 4, 2013, 289
days after Appellant was reconfined in December 2012, and
135 days after the first court-martial, Cooley I, was
dismissed for violations of R.C.M. 707.
B. MILITARY JUDGE’S FINDINGS
Prior to trial, Appellant moved at several points to
dismiss all charges and specifications due to violations of
Article 10, UCMJ, and R.C.M. 707. At the court-martial
level, speedy trial issues were litigated and ruled on at least
three times. As previously noted, on May 23, 2013, a newly
detailed Naval military judge found the delay between
Appellant’s last entry into pretrial confinement and a valid
arraignment violated R.C.M. 707 and dismissed the First
Charges without prejudice. On September 20, 2013, the
third and final detailed military judge granted the defense’s
motion to dismiss the two specifications under the
Additional Charge for violation of R.C.M. 707 but denied the
defense’s motion to dismiss with respect to the New
Charges.
On September 26, 2013, the military judge made
extensive findings of fact and denied Appellant’s Article 10,
UCMJ, motion. First, the military judge found that the
length of the delay was not unreasonable given the nature
and complexity of the case, Appellant’s misconduct during
pretrial restriction, and the Coast Guard trial docket. The
military judge found that the Government made a “good
faith attempt” to join all known offenses into a single
proceeding by taking 110 days to re-prefer charges against
Appellant and that there was no evidence of an intentional
delay to seek an advantage. Second, the military judge
accepted the reasons the Government asserted for its delay,
including the demands and complexity of the investigation,
the nature of the case, the complexity of the issues, the
geographic distances involved, the electronic media analysis
involved, and the Coast Guard judiciary’s trial docket and
availability. The military judge also found that the
10
United States v. Cooley, 15-0384/CG & 15-0387/CG
Opinion of the Court
additional specification of child pornography was based on
information from an ongoing investigation. Furthermore, the
military judge found that, at the time of the ruling,
investigators were continuing to try to identify potential
child-victims through iPhone and data analysis. With
respect to the need for confinement, the military judge
concluded that lesser forms of restraint were inadequate,
that the second period of pretrial confinement was the direct
result of Appellant’s own misconduct, and that the
conditions of confinement were not particularly oppressive.
Finally, the military judge found that Appellant was not
prejudiced in the preparation of his defense because a
qualified expert consultant was appointed before trial
commenced.
C. CGCCA DECISION
On appeal, the CGCCA found that the military judge’s
speedy trial findings of fact were supported by the evidence,
but it did not affirm the military judge’s ultimate
conclusions. Cooley, 2014 CCA LEXIS 936, at *8–9. The
CGCCA considered the charges and specifications referred
against Appellant on August 7, 2013, in two distinct
groups.12 Those in the first group were virtually identical to
the First Charges referred on March 18, 2013, and dismissed
without prejudice on May 23, 2013, for a violation of R.C.M.
707.13 2014 CCA LEXIS 936, at *5, *17–18. Those in the
second group of specifications were the remaining New
Charges referred for the first time on August 7, 2013. 2014
CCA LEXIS 936, at *5, *17–18.
The CGCCA held, pursuant to Article 10, UCMJ, that
when an accused is in pretrial confinement and additional
charges are preferred unrelated to his or her confinement,
“the Government’s accountability for the additional charges
... ‘should commence when the Government had in its
possession substantial information on which to base the
12 The correctness of the convening authority’s dismissal
without prejudice or propriety of referring the dismissed charges
and specifications to a second court-martial is not before us.
13 The CGCCA did not consider the charges and three
specifications in this group that were dismissed without prejudice
at trial on October 4, 2013.
11
United States v. Cooley, 15-0384/CG & 15-0387/CG
Opinion of the Court
preference.’” 2014 CCA LEXIS 936, at *19 (quoting United
States v. Johnson, 1 M.J. 101, 103 (C.M.A. 1975)).
As to the First Charges, the CGCCA held that the
military judge erred in denying Appellant’s motion to
dismiss for violation of Article 10, UCMJ, concluding that
the Government’s “decision to pause .... [W]as not merely a
short period of inactivity, it was an intentional diversion to
new activity that was in no way required for the case to go
forward, displaying a disregard for the speedy trial rights of
the confined Appellant.” 2014 CCA LEXIS 936, at *17.
Balancing Article 10, UCMJ, concerns, the CGCCA held that
“each day of confinement before trial is clear prejudice” and
saw “no need to address [Appellant’s] specific items of
alleged prejudice” because “the prejudice of confinement
itself weighs significantly against the Government.” 2014
CCA LEXIS 936, at *16. The CGCCA dismissed the First
Charges with prejudice. 2014 CCA LEXIS 936, at *17, *26–
27.
As to the New Charge of possession of actual child
pornography that remains before this Court, the CGCCA
held that the military judge erred in determining the
starting point of Government accountability for speedy trial
clock purposes. 2014 CCA LEXIS 936, at *20–21. The
CGCCA found that the Government possessed substantial
information regarding possession of child pornography on
which to base preferral of the specification before the end of
March 2013. 2014 CCA LEXIS 936, at *24–25. Therefore,
under R.C.M. 707(d)(1), the CGCCA concluded that the
September 10 arraignment was well beyond the 120 days
prescribed by R.C.M. 707 and dismissed the New Charge
without prejudice. 2014 CCA LEXIS 936, at *24–25. The
CGCCA further noted that the military judge did not err in
conducting an Article 10, UCMJ, analysis for the New
Charges because that charge was the cause for the delay in
this case but was not itself delayed for Article 10, UCMJ,
purposes. 2014 CCA LEXIS 936, at *25–26.
II. DISCUSSION
This case illustrates the tension between the admonition
to join all known offenses at a single trial, the ability of the
Government to obtain a dismissal without prejudice under
R.C.M. 707, and an accused’s right to a speedy trial under
12
United States v. Cooley, 15-0384/CG & 15-0387/CG
Opinion of the Court
Article 10, UCMJ. Mindful of the preference for joinder, see
R.C.M. 601(e)(2) Discussion, and cognizant of the fact that
complex cases may require investigations that run past the
120-day benchmark in R.C.M. 707 such that dismissal
without prejudice is warranted, cf. United States v. Cossio,
64 M.J. 254, 257 (C.A.A.F. 2007), we are convinced that this
case is the outlier that warrants the interposition of Article
10, UCMJ, to fill the interstice in speedy trial rights left
open by R.C.M. 707. It is simply not the case that where an
accused is in pretrial confinement, the Government, having
had charges dismissed without prejudice for violating
R.C.M. 707, may take that as an invitation to start its
charging decisions afresh based on information it had access
to before the initial charges were referred and dismissed.
A. GRANTED ISSUE
The CGCCA dismissed the child pornography
specification of the New Charge without prejudice under
R.C.M. 707 because it deemed the trigger for speedy trial
purposes for that charge was the date on which the
Government possessed substantial information. Cooley, 2014
CCA LEXIS 936, at *24–25. This holding is clearly at odds
with our recent decision in Wilder, 75 M.J. at 138 (“[W]e do
not hesitate to conclude that when analyzing a speedy trial
violation under R.C.M. 707, it is the earliest of the actions
listed in R.C.M. 707(a) with respect to a particular charge
that starts the speedy trial clock for that charge.”), but that
case was decided after the CGCCA’s decision. The
Government did not certify the CGCCA’s decision on that
point, and the question whether the CCA erred in its R.C.M.
707 analysis is not before us. See Parker, 62 M.J. at 464.
Moreover, we are mindful of the fact that an accused should
not be prejudiced by the appellate review process. See, e.g.,
United States v. Smith, 39 M.J. 448, 451 (C.M.A. 1994);
United States v. Dean, 7 C.M.A. 721, 724–25, 23 C.M.R. 185,
188–89 (1957).
Appellant, however, asks that we go further and dismiss
the child pornography specification with prejudice for
violating Article 10, UCMJ, based on the “substantial
information” rule set forth in Johnson, 1 M.J. at 103
(quoting United States v. Johnson, 23 C.M.A. 91, 93, 48
C.M.R. 599, 601 (1974)). We decline to do so and take this
13
United States v. Cooley, 15-0384/CG & 15-0387/CG
Opinion of the Court
opportunity to clarify that Article 10, UCMJ, applies only to
those charges for which an accused is arrested or confined.
In other words, Article 10, UCMJ, protection applies only to
charges related to actual confinement, and an accused’s
speedy trial rights for all unrelated charges are still enforced
under R.C.M. 707 and the Sixth Amendment.
We review questions of statutory interpretation de novo.
United States v. Vargas, 74 M.J. 1, 5 (C.A.A.F. 2014). Article
10, UCMJ, provides:
When 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.
By its own terms, Article 10, UCMJ, applies to arrest or
confinement and requires that a person be tried or informed
of the offenses for which he or she is confined. See United
States v. Schuber, 70 M.J. 181, 187 (C.A.A.F. 2011); United
States v. Cooper, 58 M.J. 54, 60 (C.A.A.F. 2003). For Article
10, UCMJ, to apply, confinement must be related to specific
charges. Mladjen, 19 C.M.A. at 161, 41 C.M.R. at 161
(holding that an accused’s confinement date on the original
charges “marked the beginning of the period for which the
Government was accountable ... as to those charges” but the
other, unrelated, charges still under investigation were not a
part of such accountability because “a period of investigation
is normally not part of the period for which the Government
is accountable in determining the timeliness of prosecution,
unless the suspect or accused is confined or restrained in
connection with those charges” (emphasis added)); see also
Nash, 5 M.J. at 38 (holding that because an appellant’s
“reconfinement was unrelated to the charges tried by the
court-martial, the Court of Military Review properly
concluded the period of confinement for the initial charges
did not include the entire period of confinement”). Based on
this case law and its plain text, Article 10, UCMJ, does not
apply to offenses for which an accused was neither arrested
nor confined.
With respect to how to define “in connection with
confinement” for Article 10, UCMJ, purposes, military
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Opinion of the Court
judges should look to the confinement order and related
documents. In this case, based on those references,
Appellant was not arrested or placed into pretrial
confinement for possession of actual child pornography.
Appellant nonetheless relies on the “substantial
information” rule based on Johnson, 1 M.J. at 103 (quoting
Johnson, 23 C.M.A. at 93, 48 C.M.R. at 601). It is true that
prior to the promulgation of R.C.M. 707 in 1984, this Court
held that, in the context of multiple charges arising during
an accused’s confinement, government accountability for the
speedy trial clock began to run “when the Government had
in its possession substantial information on which to base
the preference of charges.” Johnson, 23 C.M.A. at 93, 48
C.M.R. at 601. The President then promulgated R.C.M. 707,
which provided specific time limitations and other
procedural rules relating to the right to a speedy trial. See
Wilder, 75 M.J. at 138–39. Since then, this Court has
neither cited Johnson nor applied the “substantial
information” rule, and this Court has also overruled many of
the precedents pertaining to Article 10, UCMJ, finding
R.C.M. 707 to be more relevant. See United States v.
Kossman, 38 M.J. 258, 260–61 (C.M.A. 1993) (overruling the
ninety-day presumption from United States v. Burton, 21
C.M.A. 112, 118, 44 C.M.R. 166, 172 (1971), in favor of a
“reasonable diligence standard” as a result of the President’s
promulgation of R.C.M. 707); see also United States v.
Robinson, 28 M.J. 481, 482–83 (C.M.A. 1989) (finding no
error in the CCA’s application of R.C.M. 707 standards to
the start of a speedy trial clock instead of prior Article 10,
UCMJ, case law); United States v. McCallister, 27 M.J. 138,
140–41 (C.M.A. 1988) (“This Court’s experience since the
promulgation of R.C.M. 707 satisfies us that any purpose
sought to be served originally by the ‘demand prong’ of
Burton now is fully met by the three sets of protection just
mentioned.”).
Here, the judge-made “substantial information” rule, like
much of the pre-R.C.M. 707 case law, yields to an actual rule
promulgated by the President, whose purpose is to provide
clear guidelines. See Manual for Courts-Martial, United
States, Analysis of the Rules for Courts-Martial app. 21 at
A21–42 to A21-43 (2012 ed.); see also Kossman, 38 M.J. at
261 n.3 (stating R.C.M. 707 is not the “‘know-all, be-all’ of
15
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Opinion of the Court
speedy-trial issues; but [R.C.M.] 707 does provide good
guidance to both the Bench and Bar”). Under R.C.M. 707,
the clear speedy trial trigger for offenses for which an
accused is not confined is the date of preferral, and the clear
trigger for offenses for which an accused is confined is the
date of confinement, although the latter is also subject to the
greater protection of Article 10, UCMJ. See Wilder, 75 M.J.
135.
We therefore overrule the “substantial information” rule.
Because Appellant was not confined for the possession of
actual child pornography charge, Article 10, UCMJ, did not
apply to that charge, and the CGCCA did not err in
concluding that there was no Article 10, UCMJ, violation
with respect to that offense.
B. CERTIFIED ISSUES
While R.C.M. 707 provides clear guidance in most cases,
we have never held that it voids the additional protections of
Article 10, UCMJ, when an accused is in pretrial
confinement. As we recently reiterated:
These speedy trial protections and inquiries,
though overlapping in some respects, are
distinct. “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
required by Article 10.”
Wilder, 75 M.J. at 138 (quoting Mizgala, 61 M.J. at 128).
“This court reviews de novo the question of whether [the
accused] was 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.” Cossio, 64 M.J. at 256 (citing
Mizgala, 61 M.J. at 127); see also Kossman, 38 M.J. at 261–
62. When speedy trial allegations involve several
specifications, each specification must be considered
separately. United States v. Talavera, 8 M.J. 14, 17 (C.M.A.
1979); see also Robinson, 28 M.J. at 482–83. In this case, we
assess whether Appellant received a speedy trial under
Article 10, UCMJ, on the offenses for which he was confined,
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Opinion of the Court
the First Charges. Based on the record before us, we hold
that he did not.
i. Analysis
Article 10, UCMJ, is a “fundamental, substantial,
personal right,” Mizgala, 61 M.J. at 126, and is a statutory
protection intended to prevent soldiers from being “put in
the clink and held there for weeks, sometimes months,
before [being] brought to trial.” Uniform Code of Military
Justice: Hearings on H.R. 2498 Before a Subcomm. of the
House Comm. on Armed Services, 81st Cong. 906 (1949)
(statement of Mr. Anderson, Member, Subcomm. of the
Comm. on Armed Services), reprinted in Index and
Legislative History, Uniform Code of Military Justice (1950)
(not separately paginated). Moreover, the right to a speedy
trial under Article 10, UCMJ, is designed to “[ensure] that
the accused knows the reason for the restraint of his liberty,
and to protect him, while under restraint, from
unreasonable or oppressive delay in disposing of a charge of
alleged wrongdoing, either by trial or by dismissal.” United
States v. Tibbs, 15 C.M.A. 350, 353, 35 C.M.R. 322, 325
(1965); see also Schuber, 70 M.J. at 187 (citing Mizgala, 61
M.J. at 124). Article 10, UCMJ, does not demand constant
motion but does impose on the Government the standard of
“reasonable diligence in bringing the charges to trial.”
Mizgala, 61 M.J. at 127, 129 (internal quotation marks
omitted) (citations omitted).
In determining reasonable diligence for the purposes of
Article 10, UCMJ, courts must conduct a four-factor analysis
articulated in Barker, 407 U.S. 514, and adopted by this
Court in United States v. Birge, 52 M.J. 209, 211–12
(C.A.A.F. 1999). The four factors assess: (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. Wilson, 72 M.J.
347, 351 (C.A.A.F. 2013) (citing Barker, 407 U.S. at 530).
None of the four Barker factors alone are a “necessary or
sufficient condition to the finding of a deprivation of the
right of speedy trial.” Barker, 407 U.S. at 533.
In our examination of reasonable diligence, “[w]e remain
mindful that we are looking at the proceeding as a whole
and not mere speed,” and we give substantial deference to
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Opinion of the Court
the military judge’s findings of fact unless they are clearly
erroneous. Mizgala, 61 M.J. at 127–29. However, it is the
Government’s burden to show due diligence, id. at 125, and
it is the Government’s responsibility to provide evidence
showing the actions necessitated and executed in a
particular case justified delay when an accused was in
pretrial confinement. See id.; cf. United States v. Seltzer, 595
F.3d 1170, 1178 (10th Cir. 2010); United States v. Brown,
169 F.3d 344, 349–50 (6th Cir. 1999). This is even more
necessary where, as here, the Government is operating
under the aegis of both an R.C.M. 707 dismissal and
multiple demands for speedy trial made by the accused.
a. The length of delay
The initial question is whether 289 days of pretrial
confinement before trial on the First Charges was
unreasonable. To determine how the first factor affects our
Article 10, UCMJ, inquiry, we consider the particular
circumstances of the case because “the delay that can be
tolerated for an ordinary street crime is considerably less
than [that] for a serious, complex conspiracy charge.”
Barker, 407 U.S. at 531. The first factor, the length of the
delay, is “a triggering mechanism” and can be dispositive.
Cossio, 64 M.J. at 257 (internal quotation marks omitted)
(citation omitted); see also Schuber, 70 M.J. at 188. This
analysis “is not meant to be a Barker analysis within a
Barker analysis” but should include the seriousness of the
offense, the complexity of the case, the availability of proof,
and “additional circumstances includ[ing] whether
Appellant was informed of the accusations against him,
whether the [g]overnment complied with procedures relating
to pretrial confinement, and whether the Government was
responsive to requests for reconsideration of pretrial
confinement.” Schuber, 70 M.J. at 188 (citing Barker, 407
U.S. at 530–31, 531 n.31).
On the facts before us, the length of the delay is
unreasonable. Even though we accept that the First Charges
involved a complex investigation, no additional investigative
action is reflected in the record after March 2013. The
charges in Cooley I that were dismissed without prejudice
for violating the speedy trial rule in R.C.M. 707 in May 2013
were virtually identical to the charges finally brought to
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Opinion of the Court
trial in October 2013 in Cooley III, and all information
related to the New Charge of possessing child pornography
appears to have been in the Government’s possession by
March 2013. Moreover, despite Appellant’s multiple speedy
trial demands, the Government did not respond to these
requests in an adequate fashion. On these facts, the delay of
289 days is unreasonable and a sufficient trigger for a full
Article 10, UCMJ, analysis. See Wilson, 72 M.J. at 352. This
factor weighs heavily in favor of Appellant.
b. The reasons for delay
The Government argues that it acted with reasonable
diligence after the dismissal of the First Charges on May 23,
2013, because it continued to investigate and faced
significant challenges given the complexity of the
investigation. The Government also contends that the lack
of any evidence of intent to purposefully delay the
proceedings against Appellant demonstrates that its actions
were reasonable. The record does not support the claimed
complexity of the investigation after May 2013, and the
delay from May to October appears attributable to the
Government’s belated decision to add a charge that the
Government elected not to pursue in March 2013.
Under the reasons for delay prong of the Barker
framework, “different weights should be assigned to
different reasons.” Barker, 407 U.S. at 531. First, a
deliberate effort by the Government to delay the trial in
order to hamper the defense weighs heavily against the
Government. Id. “[M]ore neutral reason[s] such as
negligence or overcrowded courts” also weigh against the
Government, though “less heavily.” Id. “[A] valid reason,
such as a missing witness, should serve to justify
appropriate delay.” Id. In addition, “the Government has the
right (if not the obligation) to thoroughly investigate a case
before proceeding to trial.” Cossio, 64 M.J. at 258. In
contrast, “delay caused by the defense weighs against the
defendant.” Vermont v. Brillon, 556 U.S. 81, 90 (2009).
Under Article 10, UCMJ, outside of an explicit delay
caused by the defense, the Government bears the burden to
demonstrate and explain reasonable diligence in moving its
case forward in response to a motion to dismiss. See
Mizgala, 61 M.J. at 125. This explanation must be “a
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Opinion of the Court
particularized showing of why the circumstances require the
[delay].” See Seltzer, 595 F.3d at 1178. Unexplained periods
of delay will weigh against the Government, Wilson, 72 M.J.
at 355, but “[b]rief periods of inactivity in an otherwise
active prosecution are not unreasonable or oppressive.”
Cooper, 58 M.J. at 58 (citation omitted).
In evaluating the reasons for the delay in this case, the
military judge found the following facts: (1) there was no
evidence of an intentional delay; rather, the Government
made a “good faith attempt” to join all known offenses into a
single proceeding, (2) the reasons for delay are consistent
with the Government’s timeline, which included the
demands and complexity of the investigation and the Coast
Guard’s trial docket, (3) the additional specification of child
pornography was based on information from an ongoing
investigation, and (4) the Government pressed to trial
despite not completing its investigation.
The military judge’s findings regarding the reasons for
the delay are not clearly erroneous with respect to the time
up until the dismissal of the First Charges for Cooley I on
May 23, 2013. However, the military judge’s findings are not
supported by the record for the time period from late May
2013 through October 2013. After the May 23, 2013,
dismissal, the Government offered that it continued the
investigation, finalized reports, gathered new evidence,
conducted interviews, and began investigative measures
that had ceased when the first court-martial began. Unlike
past cases in which the Government’s explanations for delay
have been justified, see Cossio, 64 M.J. at 256–58, the
Government has failed to provide adequate support and
evidence in this case. Nothing in the record supports these
claims or indicates that the Government acted with
reasonable diligence after the May 23, 2013, dismissal.
There is no documented activity after the March 2013 CGIS
ECS report, which explicitly stated that all investigation of
the media provided was complete. Two main points highlight
the unreasonableness of the delay.
First, the record shows that the Government possessed
all of the necessary information to bring the child
pornography charge by March 2013, but chose not to pursue
it. The Government obtained Appellant’s confession to the
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Opinion of the Court
possession of child pornography in July 2012, and
corroborated this information no later than March 5, 2013.
Additionally, the Government had confirmation of actual
child pornography from the March 2013 CGIS ECS report,
which was both issued and received prior to the first Article
32, UCMJ, hearing on March 6, 2013.
Second, despite the Government’s claim that it was
prepared to go to trial in May 2013, the Government failed
to take meaningful action to go to trial on virtually identical
charges until October 2013. Rather than simply re-referring
the original charges and proceeding immediately to trial
after the R.C.M. 707 dismissal in May 2013, the
Government, without sufficient explanation or support, took
the opportunity to delay in order to use information it
already possessed to bring an additional charge while
Appellant lingered in confinement for more than 170 days.
This is not a case like United States v. Leahr, 73 M.J. 364,
367–70 (C.A.A.F. 2014), where the accused was not in
pretrial confinement and where the Government
demonstrated that the delay was occasioned by new
information and new charges ... that were in fact new.
Moreover, there is no indication in the record that the
Government adequately responded to Appellant’s repeated
speedy trial requests during this time. Cf. United States v.
Morrow, 16 M.J. 328, 328–29 (C.M.A. 1983) (per curiam)
(holding that an appellant’s speedy trial rights were violated
when the government failed to adequately respond to speedy
trial requests or explain delays (citing United States v.
Rowsey, 14 M.J. 151 (C.M.A. 1982))).
In sum, while we are mindful of the preference for
joining all known charges in a single proceeding, we are also
mindful that, in theory, the opportunity to dismiss charges
without prejudice for violating R.C.M. 707’s speedy trial
clock offers an opportunity for endless delay, and that
Article 10, UCMJ, is one protection to ensure that does not
happen. The record does not reflect any information on any
charge in May or October of 2013 that was not in the
Government’s possession on March 2013. There is nothing in
the record supporting the reasons for the delay between May
and October other than a belated decision to pursue a new
charge that was not, in fact, new, and broad statements
about the difficulty of the investigation and trial logistics.
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While these reasons for delay could certainly be acceptable
under different facts or perhaps a more thorough record of
the investigation, see Cossio, 64 M.J. at 256–58, the
Government has not met its burden to provide
particularized and appropriate reasons justifying the delay,
see Mizgala, 61 M.J. at 125; Seltzer, 595 F.3d at 1178. This
factor too weighs in favor of Appellant.
c. Demands for speedy trial
“The defendant’s assertion of his speedy trial right ... is
entitled to strong evidentiary weight in determining
whether the defendant is deprived of the right.” Wilson, 72
M.J. at 353 (internal quotation marks omitted) (quoting
United States v. Johnson, 17 M.J. 255, 259 (C.M.A. 1984)).
Appellant demanded a speedy trial on no fewer than five
occasions. Thus, this factor also weighs in his favor.
d. Prejudice
Given that Article 10, UCMJ, is triggered only when an
accused is in pretrial confinement, the prejudice prong of the
balancing test triggered by pretrial confinement requires
something more than pretrial confinement alone. This Court
has never held that the mere fact of pretrial confinement
constitutes prejudice. See, e.g., United States v. Danylo, 73
M.J. 183, 188 (C.A.A.F. 2014) (noting in a Sixth Amendment
claim, “[W]e have never held that pretrial confinement
which exceeds an adjudged sentence is per se prejudicial”);
Cooper, 58 M.J. at 56–57 (stating that the military judge
and trial counsel’s apparent belief that pretrial confinement
was sufficient to prove prejudice was an incorrect view of the
law). To the extent the CGCCA held that there was “no need
to address [Appellant’s] specific items of alleged prejudice”
because “the prejudice of confinement itself weighs
significantly against the Government,” Cooley, 2014 CCA
LEXIS 936, at *16, it erred.
Rather, prejudice “should be assessed in the light of the
interests of defendants[,] which the speedy trial right was
designed to protect.” Mizgala, 61 M.J. at 129 (internal
quotation marks omitted) (quoting Barker, 407 U.S. at 532).
The three recognized interests of prejudice are (1)
preventing oppressive pretrial incarceration; (2) minimizing
anxiety and concern of the accused; and (3) limiting the
possibility that the defense will be impaired. Id. The
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Opinion of the Court
inability of a defendant to adequately prepare his case is the
“most serious” interest to be considered when reviewing
alleged speedy trial violations for prejudice “because the
inability of a defendant adequately to prepare his case skews
the fairness of the entire system.” Wilson, 72 M.J. at 353
(internal quotation marks omitted) (citation omitted).
While we find only minimal prejudice from the delayed
expert assistance, that is enough to tip the balance in
Appellant’s favor. First, the Government forced Appellant to
relitigate a request for expert assistance that had previously
been approved by a military judge — despite the same
charges being included in Cooley III that were included in
Cooley I — resulting in further delay. Second, the expert
appointed was not, as the military judge ordered, from
AFCCP, but rather one whose “normal practice does not
include sex offender treatment” and instead “includes
outpatient treatment of most psychiatric disorders affecting
children, adolescents and adults.” Third, “[d]ue to issues
related to the advance notification required to cancel
appointments with existing patients,” the expert was unable
to meet with Appellant until September 30, 2013, four days
before the general court-martial, and was unable to
administer at least six sexual offender-related tests because
he did not have the time. As a result, the expert was only
able to form a limited impression of Appellant. Appellant
ultimately did not call the expert at trial.
Based on the rulings by two different military judges
who determined that expert assistance was necessary, there
was a “reasonable probability” that the sentencing
determination would have been impacted by the requested
defense expert’s presentation of mitigating evidence.
Because the Government’s delay created a situation in
which it appears Appellant was hampered in his ability to
present evidence in mitigation, the prejudice prong of the
Barker analysis weighs, however slightly, in Appellant’s
favor.
ii. Conclusion
Based on the record evidence before us, and after
carefully weighing the Barker factors, we conclude as a
matter of law that there was an absence of reasonable
diligence from the period between the dismissal of Cooley I
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Opinion of the Court
and trial in Cooley III. In balancing the fundamental
command of Article 10, UCMJ, the strength of the first three
Barker factors in favor of Appellant, and the minimal
prejudice to Appellant’s ability to prepare his case, we
conclude that Appellant’s Article 10, UCMJ, right to a
speedy trial was violated with respect to the First Charges.
We therefore affirm the CGCCA’s conclusion that the
Government violated Article 10, UCMJ, with respect to the
First Charges.
III. JUDGMENT
To the extent that the decision of the United States
Coast Guard Court of Criminal Appeals dismissed
specifications not properly before it under Article 66(c),
UCMJ, the decision is reversed. The decision below is
otherwise affirmed.
24