Petition for Writ of Certiorari — William M. Hilton, Petitioner v. United States
Supreme Court briefMar 12, 2026
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No. ______
IN THE
Supreme Court of the United States
__________
WILLIAM M. HILTON,
Petitioner,
v.
UNITED STATES,
Respondent.
__________
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the
Armed Forces
__________
PETITION FOR A WRIT OF CERTIORARI
__________
TREVOR N. WARD
Counsel of Record
United States Air Force
Appellate Defense Division
1500 West Perimeter Road
Suite 1100
Joint Base Andrews, MD 20762
(240) 612-4770
trevor.n.ward.1@us.af.mil
Counsel for Petitioner
QUESTION PRESENTED
Petitioner made an unrebutted showing of good
cause to the Court of Appeals for the Armed Forces to
review his case. Nevertheless, the court denied
review. Did the Court of Appeals for the Armed Forces
abuse its discretion by failing to grant review?
ii
PARTIES TO THE PROCEEDING
All parties to this proceeding appear in the caption
on the cover page of this petition: Lieutenant Colonel
(Lt Col) William M. Hilton, the Petitioner, and the
United States, the Respondent.
CORPORATE DISCLOSURE STATEMENT
No nongovernmental corporations are parties to
this proceeding.
RELATED PROCEEDINGS
Other than the direct appeals that form the basis
for this petition, there are no related proceedings for
the purposes of Rule 14.1(b)(iii).
iii
TABLE OF CONTENTS
QUESTION PRESENTED .................................................. i
PARTIES TO THE PROCEEDING ...................................... ii
CORPORATE DISCLOSURE STATEMENT.......................... ii
RELATED PROCEEDINGS ............................................... ii
TABLE OF CONTENTS ................................................... iii
TABLE OF AUTHORITIES ................................................ v
PETITION FOR A WRIT OF CERTIORARI .......................... 1
DECISIONS BELOW ........................................................ 2
JURISDICTION ............................................................... 2
CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED ..................................................................... 2
STATEMENT OF THE CASE ............................................. 3
I.
Lt Col Hilton is charged the first time............... 3
II. Another victim is identified. ............................... 3
III. The Government withdraws and
dismisses the original charges, which
removed the docketed trial date. ........................ 4
IV. The trial judge denies Lt Col Hilton’s
motion for speedy trial. The Air Force
Court summarily dismissed Lt Col
Hilton’s challenge. The CAAF did the
same. ................................................................... 5
REASONS FOR GRANTING THE PETITION ....................... 5
I.
The CAAF’s denial shows that it has
improperly narrowed the meaning of “on
good cause shown,” which this Court can
and should review. .............................................. 6
iv
A. By statute, the CAAF is required to review
all cases where a petitioner shows “good
cause.” ............................................................ 6
B. Lt Col Hilton demonstrated good cause. ...... 9
II. Lt Col Hilton was deprived of his
constitutional and statutory rights to
speedy trial........................................................ 10
A. Lt Col Hilton satisfies every Barker factor. 11
1.
The length of delay was egregious. ........ 11
2. The Government has no justification for
the delay, especially considering that it failed to
act with reasonable diligence. ....................... 12
3. Lt Col Hilton asserted his rights to speedy
trial. ................................................................ 15
4.
Lt Col Hilton was prejudiced by the delay.
15
B. Military defendants should not languish in
pretrial confinement without charges merely
because they serve in the military. ............. 16
CONCLUSION .............................................................. 16
Appendix
CAAF Order, United States v. Hilton,
No. 25-0179 (October 16, 2025) ........................... 1a
Air Force Court Opinion, United States v. Hilton,
No. ACM 40500 (April 4, 2025) ........................... 2a
v
TABLE OF AUTHORITIES
Cases
Barker v. Wingo,
407 U.S. 514 (1972) ......................................... 10, 15
County of Riverside v. McLaughlin,
500 U.S. 44 (1991) ................................................. 11
McPhail v. United States,
1 M.J. 457 (C.M.A. 1976) ........................................ 9
Randolph v. HV,
76 M.J. 27 (C.A.A.F. 2017) ...................................... 8
Parker v. Levy,
417 U.S. 733 (1974) ............................................... 16
Rosales-Mireles v. United States,
585 U.S. 129 (2018) ............................................... 15
United States v. Anderson,
83 M.J. 291 (C.A.A.F. 2023) .................................. 16
United States v. Armsbury,
__ M.J. __, No. 25-0233/AR, 2025
CAAF LEXIS 655 (C.A.A.F. Aug. 6,
2025) ........................................................................ 6
United States v. Byrd,
53 M.J. 35 (C.A.A.F. 2000) ...................................... 8
United States v. Birge,
52 M.J. 209 (C.A.A.F. 1999) .................................. 10
United States v. Calvillomagana,
__ M.J. __, No. 25-0142/AR, 2025
CAAF LEXIS 315 (C.A.A.F. Apr. 22,
2025) ........................................................................ 7
United States v. Caprio,
12 M.J. 30 (C.M.A. 1981) ........................................ 6
vi
United States v. Cooley,
75 M.J. 247 (C.A.A.F. 2016) ...................... 12, 13, 14
United States v. Davis,
__ M.J. ___, No. 24-0152/AR, 2024
CAAF LEXIS 314 (C.A.A.F. May 14,
2024) ........................................................................ 7
United States v. Deremer,
__ M.J. __, No. 25-0158/MC, 2025
CAAF LEXIS 350 (C.A.A.F. May 5,
2025) ........................................................................ 7
United States v. Downum,
__ M.J. ___, No. 24-0156/AR, 2024
CAAF LEXIS 315 (C.A.A.F. May 14,
2024) ........................................................................ 7
United States v. Ellis,
__ M.J. __, No. 25-0197/AR, 2025
CAAF LEXIS 481 (C.A.A.F. June 23,
2025) ........................................................................ 6
United States v. Flanner,
84 M.J. 303 (C.A.A.F. 2024) .................................... 7
United States v. Ford,
__ M.J. __, No. 25-0143/AR, 2025
CAAF LEXIS 306 (C.A.A.F. Apr. 22,
2025) ........................................................................ 7
United States v. Harborth,
84 M.J. 344 (C.A.A.F. 2024) .................................... 7
United States v. Hatfield,
44 M.J. 22 (C.A.A.F. 1996) .................................... 12
United States v. Hennessy,
85 M.J. 396 (C.A.A.F. 2025) .................................... 7
vii
United States v. Hunt,
__ M.J. __, No. 25-0257/AF, 2025
CAAF LEXIS 734 (C.A.A.F. Sep. 2,
2025) ........................................................................ 6
United States v. Ixcolgonzalez,
__ M.J. __, No. 25-0243/MC, 2025
CAAF LEXIS 685 (C.A.A.F. Aug. 19,
2025) ........................................................................ 6
United States v. Jones,
__ M.J. __, No. 25-0141/AR, 2025
CAAF LEXIS 310 (C.A.A.F. Apr. 22,
2025) ........................................................................ 7
United States v. Kershaw,
__ M.J. __, No. 25-0117/AF, 2025
CAAF LEXIS 408 (C.A.A.F. May 27,
2025) ........................................................................ 7
United States v. King,
30 M.J. 59 (C.M.A. 1990) ...................................... 10
United States v. Kossman,
38 M.J. 258 (C.M.A. 1993) .................................... 10
United States v. Mizgala,
61 M.J. 122 (C.A.A.F. 2005) .................................. 12
United States v. Moore,
85 M.J. 394 (C.A.A.F. 2025) .................................... 7
United States v. Patterson,
85 M.J. 320 (C.A.A.F. 2025) .................................... 7
United States v. Perry,
2 M.J. 113 (C.M.A. 1977) ...................................... 12
United States v. Reitz,
22 C.M.A. 584 (C.M.A. 1974) ................................ 14
viii
United States v. Rocha,
__ M.J. __, No. 25-0157/AF, 2025
CAAF LEXIS 352 (C.A.A.F. May 5,
2025) ........................................................................ 7
United States v. Rodriguez, .........................................
67 M.J. 110 (C.A.A.F. 2009) ................................ 7, 8
United States v. Rorie,
58 M.J. 399 (C.A.A.F. 2003) ................................ 8, 9
United States v. Serjak,
85 M.J. 407 (C.A.A.F. 2025) .................................... 7
United States v. Smith,
54 M.J. 783 (A.F. Ct. Crim. App. 2001 ................. 10
United States v. Ward,
23 C.M.A. 391 (C.M.A. 1975) ................................ 14
Constitutional Provisions and Statutes
10 U.S.C. § 810 ........................................................ 1, 2
28 U.S.C. § 1259(3) ..................................................... 2
Rules and Regulations
10 U.S.C. § 866 ............................................................ 2
10 U.S.C. § 867(a)(3) ................................................... 2
28 U.S.C. § 1259 .......................................................... 9
28 U.S.C. § 1259 (2018) .............................................. 9
Other Authorities
Legal Services, Dep’t of the Army,
Pamphlet No. 27-173, Trial Procedure
247 (1992) ................................................................ 9
S. REP. NO. 98-53 (1983) ............................................. 8
1
INTRODUCTION
On December 16, 2021, Lt Col Hilton was placed in
pre-trial confinement. He languished there for 181
days without charges against him. Then, when the
Government finally charged him, it took another 453
days to bring him to trial.
The Constitution demands more. The Sixth
Amendment requires that criminal defendants be
brought to trial without unreasonable delay. Here, the
Government acted with no diligence to either charge
Lt Col Hilton or bring him to trial. The Government’s
failures violated his Sixth Amendment rights.
Making
matters
worse
in
this
case,
servicemembers are provided more speedy trial
protections under 10 U.S.C. § 810. Military courts
have long recognized that a servicemembers Article 10
rights are more stringent than the Sixth Amendment.
Nevertheless, the trial judge and the Air Force Court
of Criminal Appeals (Air Force Court) found no error
with Lt Col Hilton’s protracted pre-trial confinement.
Despite demonstrating both a violation of his
constitutional and statutory rights to a speedy trial,
the Court of Appeals for the Armed Forces (CAAF)
declined to review his case. This was an abuse of
discretion. This Court should grant review, vacate the
CAAF’s decision, and remand for further
consideration.
PETITION FOR A WRIT OF CERTIORARI
Lieutenant Colonel (Lt Col) William M. Hilton,
United States Air Force, respectfully petitions for a
writ of certiorari to review the decision of the United
States Court of Appeals for the Armed Forces (CAAF)
2
denying review of the Air Force Court of Criminal
Appeals’ (Air Force Court) decision.
DECISIONS BELOW
The decision of the Air Force Court is unreported.
It is available at 2025 CCA LEXIS 142, 2025 WL
1013407, and is reproduced at pages 2a-31a. The
CAAF’s decision in Petitioner’s case is not yet
reported. It is available at 2025 CAAF LEXIS 865,
2025 WL 3144689, and reproduced at page 1a.
JURISDICTION
The Air Force Court had jurisdiction over this
matter pursuant to Article 66, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 866. The CAAF
had jurisdiction pursuant to Article 67(a)(3), UCMJ,
10 U.S.C. § 867(a)(3). The CAAF declined to grant
review and issued its order denying review on October
16, 2025. This Court granted Lt Col Hilton’s
application for extension of time to and including
March 15, 2026. This Court has jurisdiction pursuant
to 28 U.S.C. § 1259(3).
CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED
The Sixth Amendment provides, in pertinent part,
“In all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial.” U.S. CONSt.
amend. VI.
Article 10(b), UCMJ, 10 U.S.C. § 810(b), provides,
in pertinent part, “When a person subject to this
chapter is ordered into . . . confinement before trial,
immediate steps shall be taken . . . to try the person
or dismiss the charges and release the person.”
3
Article 67, UCMJ, 10 U.S.C. § 867, provides, in
pertinent part, that “[t]he [CAAF] shall review the
record in . . . all cases reviewed by a Court of Criminal
Appeals in which, upon petition of the accused and on
good cause shown, the [CAAF] has granted a review.”
(emphasis added).
STATEMENT OF THE CASE
I.
Lt Col Hilton is charged the first time.
On September 9, 2021, the Government charged
Lt Col Hilton for allegations related to one victim: E.L.
App. Ex. III at 20-21. The investigation into the
allegations made by E.L. was run by the Air Force
Office of Special Investigations (AFOSI). Special
Agent (SA) H.O. was the lead investigator.
During the investigation of E.L.’s allegations, SA
H.O. failed to conduct “canvassing” interviews—
where AFOSI interviews a subject’s friends, family,
and co-workers. Trial Tr. at 116-17. These canvassing
interviews are conducted for all sexual assault
investigations. Trial Tr. at 116. When asked why the
canvassing interviews were not carried out in
Lt Col Hilton’s case, SA H.O. replied “[I]t was missed.”
Trial Tr. at 117.
Lt Col Hilton had a scheduled arraignment for
these charges for April 4, 2022, and trial for May 23,
2022.
II.
Another victim is identified.
Then, on December 15, 2021, M.H. made
allegations against Lt Col Hilton. Trial Tr. at 36; App.
Ex. III at 24-45. Shortly after M.H. made these
allegations, the Government ordered Lt Col Hilton
into pre-trial confinement December 16, 2021. App.
Ex. XVI at 2.
4
Beginning on January 13, 2022, Lt Col Hilton
began asserting his constitutional and statutory
rights and demanded a speedy trial. App. Ex. IV at 16.
By January 31, 2022, the Government had
interviewed every possible eyewitness, Trial Tr. at 60,
and criminally booked Lt Col Hilton on the same day.
Trial Tr. at 52. Despite this, AFOSI continued to
investigate M.H.’s allegations to conduct canvassing
interviews. Trial Tr. at 71. According to one AFOSI
agent, this step would not have been necessary if the
interviews had been completed during the
investigation of E.L.’s allegations. Trial Tr. at 67-68.
These canvassing interviews, and the additional
investigation they caused, were not completed until
June 7, 2022. App. Ex. IV at 35.
III. The
Government
withdraws
and
dismisses the original charges, which removed
the docketed trial date.
On March 15, 2022, the Government dismissed the
original charges against Lt Col Hilton. App. Ex. IV at
41. This removed the original dates for arraignment
and trial from the docket. Lt Col Hilton was charged
again on June 15, 2022. App. Ex. III at 114-17.
On these new charges, Lt Col Hilton was not
arraigned until September 15, 2022. App. Ex. IX at 6.
Trial was not scheduled until March 13, 2023, which
was the Government’s first available ready date. App.
Ex. III at 181. From the date of entry into pre-trial
confinement until arraignment, 273 days had passed.
Trial Tr. at 14. Until trial, 453 days had passed. R. at
520
5
IV.
The trial judge denies Lt Col Hilton’s
motion for speedy trial. The Air Force Court
summarily dismissed Lt Col Hilton’s challenge.
The CAAF did the same.
The defense raised a motion to dismiss for speedy
trial under Article 10, UCMJ, and the Sixth
Amendment. App. Ex. II. The military judge denied
the motion, despite finding that 451 days had elapsed
between Lt Col Hilton’s entry into pre-trial
confinement and the start of trial. App. Ex. XVI at 15.
This is because, according to the military judge, the
Government exercised reasonable diligence in its
investigation. App. Ex. XVI at 16. The trial judge also
found no prejudice. App. Ex. XVI at 14-15.
Despite spending 451 days in pre-trial
confinement before trial—and 181 days in
confinement without charges—the Air Force Court
found that the speedy trial problem required neither
“discussion [n]or relief.” Pet. App. 5a. The CAAF
likewise summarily denied review. Pet. App. 1a.
REASONS FOR GRANTING THE PETITION
The CAAF must review all cases where a petitioner
demonstrates good cause. 10 U.S.C. § 867.
Lt Col Hilton showed good cause because the lower
courts erred in finding no speedy trial violation. The
CAAF abused its discretion by failing to grant review
of Lt Col Hilton’s case.
This Court should grant review and remand to the
CAAF. In so doing, this Court should instruct the
CAAF that it has a statutory obligation to grant
review in all cases where good cause is shown.
6
I. The CAAF’s denial shows that it has
improperly narrowed the meaning of “on good
cause shown,” which this Court can and should
review.
A. By statute, the CAAF is required to review
all cases where a petitioner shows “good
cause.”
Congress requires the CAAF to review three
categories of cases. Two are “mandatory” categories:
capital cases and cases sent to the CAAF by the Judge
Advocate General. 10 U.S.C. § 867. While the second
category is “neutral as to which party (an accused or
the Government) may be the one on whose behalf a
Judge Advocate General will act . . . . in practice, most
of the certified issues are submitted in cases where the
accused has triumphed in the court below.” United
States v. Caprio, 12 M.J. 30, 31 n.1 (C.M.A. 1981).
Recent experience is consistent with that observation.
Even though the United States prevails in the vast
majority of cases decided by the Courts of Criminal
Appeals, of the twenty cases certified to the CAAF by
a Judge Advocate General during the CAAF’s October
2023 and October 2024 Terms, nineteen were certified
upon request of the Government after losing at a
Court of Criminal Appeals. 1
1 United States v. Hunt, __ M.J. __, No. 25-0257/AF, 2025 CAAF
LEXIS 734 (C.A.A.F. Sep. 2, 2025) (docketing certificate for
review with United States as appellant); United States v.
Mendoza, __ M.J. __, No. 25-0244/AR, 2025 CAAF LEXIS 690
(C.A.A.F. Aug. 20, 2025) (docketing certificate for review with
United States as appellee); United States v. Ixcolgonzalez, __
M.J. __, No. 25-0243/MC, 2025 CAAF LEXIS 685 (C.A.A.F. Aug.
19, 2025) (docketing certificate for review with United States as
appellant); United States v. Armsbury, __ M.J. __, No. 250233/AR, 2025 CAAF LEXIS 655 (C.A.A.F. Aug. 6, 2025) (same);
7
The final category of cases is “discretionary.” But
that discretion is limited by Congressional mandate:
the CAAF “shall” review the record in “all cases” that
have been reviewed by a Court of Criminal Appeals
“upon petition of the accused and on good cause
shown.” 10 U.S.C. § 867(a)(3). Discussing that
provision, the CAAF has stated that subsection (a)(3)
“directs this court to review cases which have been
reviewed by a Court of Criminal Appeals and where
there is a ‘petition of the accused’ and ‘good cause
shown.’ The statute clearly establishes that both of
these predicates must exist before the congressional
mandate to review a case arises.” United States v.
Rodriguez, 67 M.J. 110, 114-15 (C.A.A.F. 2009).
United States v. Ellis, __ M.J. __, No. 25-0197/AR, 2025 CAAF
LEXIS 481 (C.A.A.F. June 23, 2025) (same); United States v.
Kershaw, __ M.J. __, No. 25-0117/AF, 2025 CAAF LEXIS 408
(C.A.A.F. May 27, 2025) (same); United States v. Rocha, __ M.J.
__, No. 25-0157/AF, 2025 CAAF LEXIS 352 (C.A.A.F. May 5,
2025) (same); United States v. Deremer, __ M.J. __, No. 250158/MC, 2025 CAAF LEXIS 350 (C.A.A.F. May 5, 2025) (same);
United States v. Ford, __ M.J. __, No. 25-0143/AR, 2025 CAAF
LEXIS 306 (C.A.A.F. Apr. 22, 2025) (same); United States v.
Jones, __ M.J. __, No. 25-0141/AR, 2025 CAAF LEXIS 310
(C.A.A.F. Apr. 22, 2025) (same); United States v.
Calvillomagana, __ M.J. __, No. 25-0142/AR, 2025 CAAF LEXIS
315 (C.A.A.F. Apr. 22, 2025) (same); United States v. Malone, __
M.J. __, No. 25-0140/AR, 2025 CAAF LEXIS 299 (C.A.A.F. Apr.
21, 2025) (same); United States v. Serjak, 85 M.J. 407 (C.A.A.F.
2025) (same); United States v. Hennessy, 85 M.J. 396 (C.A.A.F.
2025) (same); United States v. Moore, 85 M.J. 394 (C.A.A.F. 2025)
(same); United States v. Patterson, 85 M.J. 320 (C.A.A.F. 2025)
(same); United States v. Downum, __ M.J. ___, No. 24-0156/AR,
2024 CAAF LEXIS 315 (C.A.A.F. May 14, 2024) (same); United
States v. Davis, __ M.J. ___, No. 24-0152/AR, 2024 CAAF LEXIS
314 (C.A.A.F. May 14, 2024) (same); United States v. Harborth,
84 M.J. 344 (C.A.A.F. 2024) (same); United States v. Flanner, 84
M.J. 303 (C.A.A.F. 2024) (same).
8
In a three-to-two decision, the CAAF grappled with
the discretionary nature of its review when
considering the propriety of an abatement ab initio
due to an appellant’s death. United States v. Rorie, 58
M.J. 399 (C.A.A.F. 2003). The majority found the
CAAF’s “petition authority is more akin to the writ
authority exercised by [this Court], particularly with
respect to the primary sources of appeals, the writ of
certiorari and the petition for grant of review.” Id. at
405. Citing congressional intent, the CAAF adopted
the position that the question of what cases the CAAF
will hear “is a matter of internal management,
properly left to [the CAAF’s] decision in accordance
with guidelines expressed in [the CAAF’s] rules.” Id.
(quoting S. REP. NO. 98-53, at 34 (1983)).
Article 67(a)(3), UCMJ, “reflects congressional
intent to provide service members with a significant
opportunity to obtain review by an independent,
civilian tribunal, without requiring our court to grant
full review in every case.” Id. (citing United States v.
Byrd, 53 M.J. 35, 36-37 (C.A.A.F. 2000)); S. REP. NO.
98-53, at 34 (1983)) (emphasis added). The CAAF does
not have the discretion to deny review where good
cause is shown upon a timely petition.
Recently, one judge on the CAAF explained,
“Because we can hear a case does not always mean we
should.” Randolph v. HV, 76 M.J. 27, 35 (C.A.A.F.
2017) (Sparks, J., dissenting). The statute requires
the converse though: where the CAAF can hear a case
because good cause is shown, it must. Rodriguez, 67
M.J. at 114-15.
In equating “good cause” to this Court’s standard
for review, the CAAF created “unfettered discretion
. . . to deny review regardless of the merits of the case.”
9
Id. at 408 (Effron, J., dissenting). The plain language
of Article 67, UCMJ, does not support such a narrow
construction. As the dissent in Rorie pointed out,
“[c]ounsel familiar with Supreme Court practice
should not confuse the ‘good cause’ standard under
Article 67 with certiorari. Those courts that may
review a case by issuing a writ of certiorari are not
required to hear a case merely because a party
demonstrates viable legal issues requiring relief.”
Rorie, 58 M.J. at 408 (quoting Legal Services, Dep’t of
the Army, Pamphlet No. 27-173, Trial Procedure 247
(1992)) (emphasis added).
For the first time in history, this Court can now
review cases the CAAF “refused to grant.” 28 U.S.C.
§ 1259. Previously, other than cases that fell within
CAAF’s mandatory jurisdiction, this Court could only
review cases where the CAAF granted review—which
inherently meant there was “good cause shown.” See
28 U.S.C. § 1259 (2018). But the CAAF’s abuse of
discretion in applying the “good cause” standard is
now reviewable, as are the underlying issues brought
before it. Granting this petition to correct the CAAF’s
improper construction of its mandatory “good cause
shown” jurisdictional threshold would affect the
CAAF’s consideration of every petition for a grant of
review. The CAAF is not the “supreme court of the
military justice system.” McPhail v. United States, 1
M.J. 457, 462 (C.M.A. 1976). This Court is.
B. Lt Col Hilton demonstrated good cause.
In his petition for grant of review at the CAAF,
Lt Col Hilton raised the speedy trial issue discussed
in Section II, infra. Lt Col Hilton asserted that both
the military judge and the Air Force Court erred.
Because Lt Col Hilton made a specific showing of good
10
cause, the CAAF was statutorily required to review
his case. By declining to review the case, the CAAF
abused its discretion.
II. Lt Col Hilton was deprived of his
constitutional and statutory rights to speedy
trial.
Criminal defendants have a Sixth Amendment
right to a speedy trial. Barker v. Wingo, 407 U.S. 514,
515 (1972). This Court uses a four-factor balancing
test to determine whether a speedy trial violation has
occurred. Id. at 530. Those factors are: (1) length of the
delay; (2) the reason for the delay; (3) the defendant’s
assertion of their speedy trial rights; and (4) prejudice.
Id.
Military courts have adopted these factors for
assessing speedy trial violations both under the Sixth
Amendment and Article 10, UCMJ. See, e.g., United
States v. Birge, 52 M.J. 209, 212 (C.A.A.F. 1999)
(referring to the Barker factors as informative).
However, “Article 10 establishes a more rigorous
speedy-trial standard than does the Sixth
Amendment.” United States v. King, 30 M.J. 59, 62 n.5
(C.M.A. 1990); United States v. Smith, 54 M.J. 783,
785 (A.F. Ct. Crim. App. 2001) (“Article 10 provides a
more stringent speedy trial requirement than the
Sixth Amendment.”). Ultimately, the test under
Article 10, UCMJ, is whether the Government acted
“with reasonable diligence in getting the case to trial.”
Smith, 54 M.J. at 785 (citing United States v.
Kossman, 38 M.J. 258, 262 (C.M.A. 1993)) (cleaned
up).
In this case, Lt Col Hilton’s speedy trial rights
were violated because the Government cannot satisfy
any Barker factor. This Court should grant review
11
because the length of delay in this case is particularly
egregious, especially considering that Lt Col Hilton
languished in pre-trial confinement for 181 days
without charges levied against him.
A. Lt Col Hilton satisfies every Barker factor.
1. The length of delay was egregious.
The length of delay in this case weighs in favor of
a speedy trial violation. It took the Government 273
days to arraign Lt Col Hilton (and 453 days to bring
him to trial) after placing him in pretrial confinement.
The trial judge agreed that this delay was so long that
it weighed in favor of a violation. App. Ex. XVI at 12.
Worse still is the fact that Lt Col Hilton languished
in confinement without charges for 181 days. But this
Court has held that criminal defendants have a
constitutional right to be charged with a crime within
48 hours of being detained. See County of Riverside v.
McLaughlin, 500 U.S. 44, 56-57 (1991). The
Government’s failure to bring charges against
Lt Col Hilton for 181 days surpasses the 48-hour rule
by over 9,000 percent.
This Court should be concerned that military
defendants are spending hundreds of days detained
without charges, and military trial and appellate
judges are doing nothing to stop the practice.
12
2. The Government has no justification
for the delay, especially considering
that it failed to act with reasonable
diligence.
The trial judge found that the Government acted
with diligence. But this conclusion is betrayed by both
the facts of this case and binding precedent.
The delays in this case were caused by the
Government’s failure to carry out “canvas” interviews
during the initial investigation. But that initial
investigation was concluded before Lt Col Hilton was
placed in confinement. Had the original investigation
conducted those interviews, the delay would have
been shorter.
The Government bears the burden of moving a
case forward with reasonable diligence. United States
v. Mizgala, 61 M.J. 122, 125 (C.A.A.F. 2005). Whether
a case moves with reasonable diligence is a function of
the complexities that the case presents. United States
v. Hatfield, 44 M.J. 22, 23 (C.A.A.F. 1996). While a
complex offense may constitute extraordinary
circumstances warranting delay, this must be
demonstrated in the record. United States v. Perry, 2
M.J. 113, 115 (C.M.A. 1977). Importantly, delays in
case processing are not an invitation for the
Government to “take a second bite at perfecting a
case” especially when the information being utilized
was previously available. United States v. Cooley, 75
M.J. 247, 253 (C.A.A.F. 2016).
The Government’s delay to perfect its investigation
of M.H.’s allegations through canvas interviewing,
which should have been completed during the
investigation with E.L., demonstrated a lack of
reasonable diligence. While the Government was
13
entitled to investigate these offenses, the protections
of Article 10 required forward movement. None of the
newly discovered offenses were so complex to justify
the delay. Rather, the new offenses only required
investigation
of
eyewitnesses
and
canvas
interviewing. Trial Tr. at 80-81.
For the offenses reported by M.H. on December 15,
2021, all eyewitness interviews had been accounted
for by January 25, 2022. Trial Tr. at 60; 67. This left
the canvas interviews. However, this step should have
been completed months earlier during the
investigation of E.L. Trial Tr. at 67-68. Owing to the
redundant nature of canvas interviewing in a sexual
assault investigation, had this step been completed
with E.L. there would have been no additional delay.
The Government’s failure to complete this step
during the investigation of E.L. was negligent. This is
evidenced by SA H.O.’s testimony in which she
explained “it was missed” when she was asked why
the canvas interviews were not completed. Trial Tr. at
117.
In Cooley, the CAAF found that the Government
had unreasonably delayed proceedings to perfect its
evidence, despite having had access to the information
justifying the delay at an earlier point in time. 75 M.J.
at 261. Similarly, the Government’s failure to
complete the investigative steps justifying the delay
in the processing of M.H.’s allegations demonstrated a
lack of reasonable diligence. Had the Government
exercised due diligence in the earlier investigation,
the investigation of M.H. could have been wrapped up
as early as January 25, 2021.
Even without the canvas interviews, the
Government possessed sufficient information to
14
charge Lt Col Hilton and move forward with the
prosecution of M.H.’s allegations as early as January
25, 2022. On that date, the Government was in
possession of M.H.’s victim interview and had
exhausted their attempts to interview the only other
eyewitnesses. The delays beyond this point were
unreasonable. Cooley, 75 M.J. at 261 (finding
impermissible delay after the point where the
Government possessed information necessary to
prosecute the offense). Although the Government may
have preferred receiving the completed investigative
report on M.H.’s allegations before proceeding to trial,
this preference does not justify the delay. See United
States v. Reitz, 22 C.M.A. 584, 585 (C.M.A. 1974)
(holding that the Government’s preference for
completion of investigative report insufficient to
warrant delay). The need for canvas interviewing
extended to the other offenses later reported by J.R.
and Lt Col Hilton’s previous wives, creating
unreasonable delay for those separate investigations
as well.
Finally, the delay could not be justified based on
the Government’s preference to try all allegations in a
single court-martial. Cooley, 75 M.J. at 261
(acknowledging that the preference for joinder does
not warrant “endless delay” to run down investigative
leads). The Government is not excused from the
requirement
for
reasonable
diligence
when
attempting to process additional charges. United
States v. Ward, 23 C.M.A. 391, 394 (C.M.A. 1975)
(“[T]he intercession of a new charge does not
automatically authorize deferment of the trial of the
original charges for which the accused has been
confined.”) Here, the Government committed to
extended delays based on the discovery of new
15
offenses to investigate, despite Lt Col Hilton’s status
in pretrial confinement for other offenses that should
have been fully investigated by January 25, 2022.
The delay in this case was not the result of a
complex criminal investigation. Instead, it was caused
by a lack of investigatory diligence. Therefore, this
factor weighs in Lt Col Hilton’s favor.
3. Lt Col Hilton asserted his rights to
speedy trial.
Lt Col Hilton asserted his speedy trial rights.
While the trial judge correctly found this fact, he
reasoned that the factor did not weigh heavily in
Lt Col Hilton’s favor because Lt Col Hilton’s defense
counsel were not immediately available for a
preliminary hearing nor available for trial until
February 20, 2023. App. Ex. XVI at 14.
This conclusion makes little sense. It was the
Government’s choice to remove the originally
docketed trial date. And any delay caused by defense
counsel’s availability was, as a result, not
Lt Col Hilton’s fault. It was the fault of the
Government. Therefore, this factor should weigh
heavily in Lt Col Hilton’s favor.
4. Lt Col Hilton was prejudiced by the
delay.
The military judge found that Lt Col Hilton
suffered no prejudice from the delay. But this
conclusion contravenes clear precedent from this
Court. “The time spent in jail awaiting trial has a
detrimental impact on the individual.” Barker, 407
U.S. at 532; see Rosales-Mireles v. United States, 585
U.S. 129, 140 (2018) (“Any amount of actual jail time
is significant, and has exceptionally severe
16
consequences for the incarcerated individual and for
society.” (cleaned up)).
As this court has recognized, any amount of pretrial confinement is detrimental. Here, there were 181
days of confinement without charges, and 453 days
before trial. The impact of this confinement was
prejudicial to Lt Col Hilton.
B. Military defendants should not languish
in pretrial confinement without charges
merely because they serve in the military.
Military members shed many rights in the
criminal justice process merely to serve their nation.
Sometimes the limitations on those rights make sense
and further the military mission. See, e.g., Parker v.
Levy, 417 U.S. 733, 744 (1974) (reasoning that
servicemembers have reduced free speech rights
because of the military’s “specialized society”); United
States v. Anderson, 83 M.J. 291, 293 (C.A.A.F. 2023),
cert. denied 144 S. Ct. 1003 (2024), (holding that there
is no constitutional right to a unanimous verdict in the
military). But when a military defendant faces
confinement for 181 days without charges, such a
violation should not stand. Only this Court can rectify
the military’s failure to protect servicemembers rights
to a speedy trial when military appellate courts fail to
do so.
CONCLUSION
This Court can review decisions of the CAAF
denying review of petitions for review. Here, the
CAAF abused its discretion by failing to follow its
statutory mandate to review all cases where good
cause is shown. Because Lt Col Hilton showed good
cause through the military judge’s prejudicial error,
17
this Court can and should grant review and remand
to the CAAF for further consideration.
Respectfully submitted,
TREVOR N. WARD
Counsel of Record
United States Air Force
Appellate Defense Division
1500 West Perimeter Road
Suite 1100
Joint Base Andrews, MD 20762
(240) 612-4770
trevor.n.ward.1@us.af.mil
Counsel for Petitioner
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.