Petition for Writ of Certiorari — Cossio v. United States (No. 06-1568)

No. _ CFfict SF THE CLERK

IN THE

Supreine Court of the United States

AIRMAN BASIC JOSE A. COSSIO,

Petitioner

UNITED STATES OF AMERICA,

Respondent

On Petition for Writ of Certiorart to the

(muted States Court of Appeals for the Armed Forces

PETITION FOR WRIT OF CERTIORARI

JOHNS. FREDLAND

CAPTAIN. U.S. AIR FORCE

( ounsel of Record

MEARK R. STRICKLAND

LrCor. U.S. AIR FORCE

(Counsel for Petitioner

APPELLATE DEFENSE DIVISION

AIR FORCE LEGAL OPERATIONS AGENCY

112 LUKE AVENUE, SUITE 343

BOLLING AFB, DC 20332-8000

(202) 767-1562

May 2007

QUESTION PRESENTED

Whether the military judge erred in granting the

petitioner's motion to dismiss based on the denial of

his right to a speedy trial under Article 10, Uniform

Code of Military Justice? ~

TABLE OF CONTENTS

Page

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SPENT Pere EP ea hsacdnccasidanadecnicsscscrscsessceess l

FSI re ie ea ee icin ihtinssavesacessesesees l

CONSTITUTIONAL AND STATUTORY

PRR VES ree Be Pe RED cas sikasiccceccsssccascsscces.. 2

SATE e Gi SRE GPR cis cccsecasniresscsserccccccces 2

REASONS FOR GRANTING THE WRIT .......... 20

COE LA pee aaah desis sch nncncssacccces 30

APPENDIX A

Opinion of the United States Court of Appeals for

the Armed Forces. (10 January 2007)................... la

APPENDIX B

Opinion of the United States Air Force Court of

Criminal Appeals (10 May 2006) ...................0... 16a

iit

TABLE OF AUTHORITIES

Page

Constitutional Provisions

GP: PII i cassis ccetasscrcasidineaninaconacdmas 24

Decisions of the Supreme Court of the United

States

Barker v. Wingo, 407 U.S. 514 (1972)........ 1922-29

Brady v. Maryland, 373 U.S. 83 (1963)............... 12

Military Court Decisions

United States v. Cooper,

ee UE. Fe ar PE, AE aixiassivitniodictincmandion 25

United States v. Doty,

51 M.J. 464 (C.A.A.F. 1999)... 25

United States v. Kossman,

Se NE Be Ci eas ROTOR ich socneaaniees 21

United States v. Mizgala,

GE MS 4o2 CARAS, Bite hicisnnnciacnud 22,25

United States v. Tibbs,

35%. , Ck Ce TS iscsi 22

IV

Federal Statutes

Oe is I ics ctadeienptccsan 2-3,16,20-22,27-30

DI rigs sink alia pncccdlaihs sanintaaremmcarinaniess ]

BF i. ST ckcinbchnscnapeacinlanestlamanibacnanconieidtis |

The petitioner, Airman Basic Jose A. Cossio,

respectfully prays that a writ of certiorari issue to

review the order and judgment of the United States

Court of Appeals for the Armed Forces entered in his

case on January 10, 2007.

OPINIONS BELOW

The order and judgment of the United States

Court of Appeals for the Armed Forces, United

States v. Cossio, 64 M.J. 254 (C.A.A.F. 2007), is

located at Appendix A. The unpublished opinion of

the United States Air Force Court of Criminal

Appeals, United States v. Cossio, Misc. Dkt. 2006-

02, 2006 CCA LEXIS 128 (A.F. Ct. Crim. App. 10

May 2006) is located at Appendix B.

JURISDICTION

The judgment of the United States Court of

Appeals for the Armed Forces was entered on

January 10, 2007. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1259(3) and 10 U.S.C. §

867a(a).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Article 10, Uniform Code of Military Justice

(UCMJ) Section 836(a) of Title 10, United States

Code [hereinafter Article 10], 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.

STATEMENT OF THE CASE

This case presents the question of whether the

military judge erred in granting the petitioner’s

motion to dismiss based on the denial of his right to

a speedy trial under Article 10, UCMJ. The Air

Force Court of Criminal Appeals reversed the

military judge’s ruling and the Court of Appeals for

the Armed Forces affirmed the Court of Criminal

Appeals’ judgment.

1. Facts

a. Background

The petitioner's command, the Air Force

Special Operations Command (HQ AFSOC),

3

charged him with one count of attempting to

violate a lawful general regulation, one count of

disrespecting a senior commissioned officer, one

count of failure to obey a lawful order and two

counts of conduct prejudicial to good order and

discipline relating to his alleged maintenance of a

false version of the official webpage for Hurlburt

Field, Florida. Prior to arraignment, Appellant’s

trial defense counsel moved to dismiss all charges

and specifications on the grounds that the

government had violated Appellant’s right to a

speedy trial under Article 10, UCMJ. See App. Ex.

lil. On 2 February 2006, the military judge granted

the motion and dismissed the charges and

specifications with prejudice. See R. 464-93; App.

Ex. XXIV. The government requested that the

military judge reconsider the dismissal, but the

military judge adhered to his previous ruling in a

supplemental ruling. See R. 543-48; App. Ex.

XXX. i

b. First Court-Martial

On 16 December 2004, the petitioner was tried

at a gencral court-martial for various violations of

the UCMJ. See App. Ex. XXIV at 1. After the

military judge found the petitioner guilty of a

majority of the offenses, he sentenced the petitioner

to a bad-conduct discharge. ten months of

confinement, a fine of $750.00, and reduction in

4

grade from E-3 to E-l. See id. The petitioner

left confinement and started appellate leave on 16

August 2005. See id. While on appellate leave, he

lived at his parents’ home in Berwin, IL. See id.

c. Alleged Article 89 Violation (Charge I)

During his confinement at Lackland Air Force

Base, TX, in February or March 2005, the petitioner

received the Staff Judge © Advocate’s

Recommendation (SJAR) from his court-martial.

See id. The petitioner allegedly responded to the

SJAR by sending a letter to Maj WAD, an attorney

assigned to HQ AFSOC/JA; the letter allegedly

included disrespectful statements about Maj WAD.

See id. Maj Tom Posch, the Deputy Staff Judge

Advocate at 16 SOW/JA, testified that the

government decided that the alleged conduct

“wasn’t serious enough to stand on its own at a trial

by court-martial.” R. at 303. In his findings of fact

on the petitioner’s Motion To Dismiss, the military

judge found that this “matter was adequately

investigated at the time and virtually no pretrial

preparation would be required to resurrect this

allegation.” See App. Ex. XXIV at 1.

d. Alleged Article 92 Violation (Char ze IID)

On 24 February 2004, MSet James D. Burns,

the petitioner's First Sergeant, issued the petitioner

a written order to “have no contact whatsoever with

[AIC CEW].” LO. Ex. 2. The order indicated that

5

it was “effective immediately and shall

remain in effect until further notice”; it included e-

mail in its definition of “contact.” Jd. AlC CEW

received several e-mails from an_ individual

claiming to be “Dave Brown” on 21-22 August

2005. See App. Ex. XXIV at 2. Apparently

believing that the petitioner had sent the e-mails,

she forwarded them to her First Sergeant, who

forwarded them to 16 SOW/JA. See id. Over the

next month, AIC CEW received additional e-mails

from “Dave Brown” and e-mails that the petitioner

allegedly sent under his given name: See id. The

military judge found that:

Given that the government had

possession of the [e-mails] to [AIC

CEW] sent by the so-called “Dave

Brown” and [the petitioner] himself:

and given they had evidence of the

issuance and terms of the no-contact

order: and given that [the petitioner]

provided a statement to OSI on 6

October 2005 — where he admitted

[e-mailing AlC CE W] both using his

own name and the name “Dave

Brown,” where he admitted to

telephoning her, where he explained

the reason behind wanting to contact

her...very little pretrial preparation

6

would be required to try Charge III

and its specification.

Id.

e. Alleged Article 80 and Article 134

Violations (Charge I and Charge IV)

On 27 September 2005, personnel assigned to

16 CS, which administers the Hurlburt Field

unclassified e-mail and internet system, learned of a

website that appeared to be an official Hurlburt

Field website, but was not. See id. The counterfeit

website prompted individuals to enter their official

usernames. and passwords. See id. 16 CS and

AFOSI investigated the website that day, and

discovered that e-mails related to the website had

been sent to six individuals, including AIC CEW.

See id. A “WHOIS” search determined that the

counterfeit website was apparently registered to the

petitioner; the address listed was his parents’ home

in Berwin, IL. See id. In his findings of fact, the

military judge found that:

The Comm Squadron’s quick

investigation into the matter; the fact

that computer equipment was seized

from [the petitioner's parents’}

residence, which could arguably

establish opportunity and knowledge

4

— even without a DCFL forensic

examination; and [the petitioner’s]

inculpatory statements to AFOSI on

6 October, suggest that an

overwhelming amount of case

preparation as to Charge I and its

specification and Charge IV and its

specifications — none of which are

that dissimilar and all of which

would seem to rely on much of the

same proof — would not be required.

ld at 3.

f. Pretrial Confinement and Speedy Trial

Request

After obtaining a search warrant from a federal

magistrate, Air Force Office of Special

Investigations (AFOSI) agents searched the

petitioner's parents’ residence on 5 October 2005.

See id. Among other items, they seized five

computer hard drives, 61 CDs, and 15 floppy

diskettes. See id. The agents also apprehended the

petitioner at that time; he was in_ military

confinement until the 30 January-2 February 2006

motion hearing. See id.

Initially, the petitioner invoked his rights under

Article 31, UCMJ. See LO. Ex. 18 at 2. While

waiting for a connecting flight in Atlanta, however,

the petitioner allegedly initiated a discussion with

8

the AFOSI agents. See id. The agent’s notes

from this conversation indicate that the petitioner

made statements about e-mailing AlC CEW and

being involved with the fraudulent website. See

App. Ex. 15, Atch. 13.

The government set the pretrial confinement

hearing for 11 October. See App. Ex. XXIV at 4.

Maj Judy L. King, the petitioner’s sole defense

counsel at the time, requested that the hearing be

moved up to 7 October to accommodate her

schedule. See id. at 4-5. 16 SOW did not comply

with the request; ultimately, the _ pretrial

confinement reviewing officer held the hearing on

13 October and determined that the petitioner

should remain in pretrial confinement. See id. at 5.

In his findings of fact, the military judge found that

the government “should have” complied with Maj

King’s request to move the hearing to 7 October.

On 28 October, the defense requested a speedy trial.

Id.

g. Computer Evidence Processing

In mid-October, AFOSI sent the seized

computer equipment for forensic examination at the

Defense Computer Forensics Laboratory (DCFL).

See id. at 3-4. The “imaging” process lasted from

20 October to 15 November: the forensic

examination itself ran from 15 November to !2

January 2006. See id. at 4. DCFL sent out the

9

completed report on 17 January. In his findings

of fact, the military judge concluded that DCFL

“should have attached a higher priority to their

examination of the materials” in the petitioner's

case. /d. He focused on the fact that

[while Mr. [Armond] Carter [the

sole forensic examiner working on

the petitioner’s case] was using his

two workstations to analyze the

material associated with this case,

three other forensic examiners were

working together on another matter,

- using six workstations. That matter

had a high priority, too, but the

government did not present any

evidence that that examination was

associated with a criminal

investigation or that any defendant in

that matter was in _ pretrial

confinement.

Id. Mr. Carter testified at the motion hearing that

the petitioner's case was a “Category |” case,

meaning that DCFL considered it “highest priority.”

R. at 200. During the reconsideration portion of the

hearing. trial counsel indicated that a DCFL

employee had characterized the other forensic

matter as involving two networks and 22 systems.

See R. at S11. Apparently, DCFL regarded the

10

other case as likewise being “Category 1,” with

“the highest priority over criminal cases because it

was a national security case.” /d.

The military judge also discussed the pace of

Mr. Carter's analysis. He noted that Mr. Carter had

..completed his examination of the

four Windows-based hard drives by

18 December, but the fifth hard

drive, which was an [Apple iMac]

hard drive, was more complicated

~ and he was relatively unfamiliar with

[Apple iMac] hard drives. Mr.

Carter put his work on these hard

drives aside, for the most part, from

12 to 23 December so he could

attend a training course offered in his

building. He did not work on [the

petitioner's] materials during the two

weeks of his training course,

although he did put in 10 hours of

work on the materials during the

weekend of 17-18 December.

Before being assigned the materials

seized in this case, Mr. Carter and

his supervisor discussed whether

someone else should do_ the

examination — someone already more

familiar with the [Apple iMac] hard

1]

drive who was _ not attending the

training course. Mr. Carter really

wanted to do the analysis; he thought

it would be challenging and a good

learning experience.

App. Ex. XXIV at 4.

h. Pre-Referral Trial Processing

- On 26 October 2005, Capt J. Kris White, an

attorney assigned to 16 SOW/JA, forwarded draft

charges and a proof analysis, notes, and legal

research to Maj Mary M. Spangler, the Chief of

Military Justice at AFSOC/JA. See id. at 5. Maj

Spangler completed her review on 10 November.

See id. at 6. She recommended “minor changes” to

the wording of three of the charges, but otherwise

indicated that she had no other suggested charges,

that no proof issues existed with any of the charges,

and that no further evidence was needed. /d. The

military judge noted that “HQ AFSOC/JA [was], by

10 November 2005. apparently completely satisfied

with the way this case has been. charged.” /d.

Nevertheless, Maj Spangler indicated in her e-mail

that she would need to review the charge sheet tn its

entirety before preferral. See id.

Capt White e-mailed Maj King on 2 November

and indicated that “AFOSI is currently in the process

of completing their investigation and analysis of the

computer seized from [the petitioner's parents’ ]

12

residence. Once that analysis is complete,

additional charges may be preferred, depending on

the evidence that it obtained.” Jd. The focus on the

DCFL analysis as a path to additional charges appears

to have been common among the 16 SOW/JA

attorneys who worked on the case. Of four 16

SOW/JA attorneys who testified at the motion

hearing, three expressed this mindset. See R. 84-85,

257-58, 316, 361. May Posch also indicated that the

government had been concerned about the

petitioner's speedy trial clock and discovery rights

under Brady v. Maryland, 373 U.S. 83 (1963). See R.

at 339.

[t-appears that the government regarded the

charges as ready for preferral on 17 November, but

delayed preferral until 22 November because the

petitioner's commander was temporarily assigned to

another duty location. See App. Ex. XXIV at 6-7.

On 29 November, 16 SOW/CC appointed May

Andrew T. Krog, an attomey assigned to

AFSOC/JA, as Article 32 Investigating Officer: the

defense learned of the appointment on | December.

See id. at 7.

That same day, Maj Krog notified the parties

that he intended to set a hearing date for the next

week. See id. He clarified this to mean 6

December. See id. All parties agreed. See id. On

5 December, Maj King requested that the hearing be

13

delayed until 13 December; she indicated

that she would be available on 14 December, as

well. See id. Maj Krog granted the delay. See id.

Ultimately, the Article 32 hearing began on 14

December. See id.

Maj Krog submitted his report to 16 SOW/JA

on 22 December. See id. On all charges and

specifications, he concluded that the evidence

presented was “sufficient.” See 1.0. Report. He

made no comments expressing a need for additional

evidence. See id. Col Von Wald, HQ AFSOC Staff

Judge Advocate, signed the pretrial advice on 29

December, and Lt Gen Michael W. Wooley, the

general court-martial convening authority, referred

all charges and specifications to trial on 30

December. See App. Ex. XXIV at 7.

i. Post-Referral Trial Processing

The petitioner received a copy of the Article 32

report on 29 December, but Maj King did not

receive a copy until 3 January. See id. at 8. The

government served the petitioner with a copy of the

referred charges on 5 January. See id.

On 3 January, Col Thomas Cumbie, the Chief

Judge of the Eastern Circuit, met with Capt Dana

Holmquist from 16 SOW/JA and Maj King to

address docketing for another case. See id. They

also discussed the trial date for the petitioner's case.

See id. Both the government and defense provided

14

Col Cumbie with memoranda dated 3

January. See id. The government memorandum,

signed by Capt Sandell, asserted that the

“government requests that this case be docketed for

30 Jan 06.” See id. Maj King’s memorandum

noted that the petitioner had made a speedy trial

demand on 28 October, that the petitioner had been

placed in pretrial confinement on 5 October, and

that her schedule was open through 14 January. See

id. She indicated that she had a “board” 15-19

January, but did not specify what kind of a board it

was. See id.

Col Cumbie “directed” a 30 January trial date in

his 6 January docketing memorandum. See id. As

the military judge observed in his findings of fact,

this meant that the “parties could not agree upon a

trial date, so the Chief Judge had to pick one

himself.” See id. Col Cumbie’s memorandum

indicated that the “Next Available Judge Date” was

23 January. See id. at 8-9. The military judge noted

that this meant that no “Eastern Circuit military

judges [were] available to try the case until 23

January.” /d. at 9. He found that “the government

presented no evidence” on whether Col Cumbie had

looked outside the Eastern Circuit for a military

judge. /d.

At the time of docketing, three courts-martial

were scheduled for the Hurlburt Field courtroom in

1S

January: United States v. Beres, United States v.

Lindo and United States v. Schrier. See id. at 9-10.

In his findings of fact, the military judge indicated

that United States v. Schrier was the only case of

the three that involved pretrial confinement, but that

the pretrial confinement had started almost two

months later than the petitioner’s confinement. See

id. Moreover, none of the cases had involved

speedy trial requests or statute of limitations

concerns. See id. During the motion hearing, Col

Cumbie testified that he did not look for alternate

sites for earlier in January because of Maj King’s

schedule, and that he did not reschedule any of the

cases previously docketed for the Hurlburt Field

courtroom because he thought that everyone agreed

with the 30 January trial date. See R. at 523. The

military judge made findings of fact that

[ijn the docketing conferences held

with the parties, the government

affirmatively did not ask Col Cumbie ~

to reschedule US v. Beres, US v.

Lindo or US v. Schrier to

accommodate an early trial date in

{the petitioner's case]. In only one

of those three cases was the accused

in pretrial confinement, and that was

for a relatively short period of time:

in none was there a request for a

16

speedy trial; and US vy. Lindo

went Chapter 4 at the last minute.

The government could have asked

Col Cumbie to move up [the

petitioner] into Lindo’s slot, or asked

that [the petitioner] be moved up to

26 January. Or, Col Cumbie could

have done this sua sponte, given the

length pretrial confinement and the

demand for the speedy trial in [the

petitioner’s case]. But, this did not

take place.

App. Ex. XXIV at 10.

j. Article 10 Motion: Military Judge’s

Findings

The relevant case law required the military

judge to make four factual findings: length of delay,

reasons for delay, whether the petitioner had made a

speedy trial request, and prejudice.

(1) Length of Delay

The military judge regarded 6 October 2005. the

day after the government placed the petitioner into

pretrial confinement, as “Day 1.” See App. Ex.

XXIV at 12. Overall. he calculated that the

government was chargeable with 109 days under

the Article 10 speedy trial clock. See id. at 13. He

reached this figure by charging 6-13 December to

17

the defense for its role in delaying the Article 32

hearing and charging all other days from 6 October

2005-30 January 2006 to the government. See id. at

12-13.

(2) Reasons for Delay

The military judge reviewed the stages of

pretrial preparation and found “unreasonable”

reasons for delay on several occasions:

» The government’s taking 14 days to

perform its initial pre-preferral

review

« The government’s letting 12 days

elapse between the _ pre-preferral

review and preferral, despite the fact

that AFSOC/JA had concluded that

“there were no other suggested

charges, no proof issues, and no

further evidence needed” .

*# The seven-day delay before Maj

Krog was appointed IO

* The two days before the defense

learned of Maj Krog’s appointment

« Maj Krog’s setting the Article 32

hearing for a week after his

appointment, rather than

immediately

18

* The

government’s not serving the

petitioner with charges until six days

afier referral

* The government and judiciary’s

failure to docket the case

expeditiously

See id. at 13-14. Overall, the military judge found

64 days of unreasonable delay. See id.; App. Ex:

XXV. He discussed the delay in docketing the case

fairly extensively.’ He noted that “the defense was

readily available, at least for motion practice, from

6 January through 14 January, based on Maj King’s

3 Jan 06 memo to Col Cumbie” and that the “board

the next week, as it was not a UCM§J action, was

secondary to this court-martial, and Maj King could

have been made available for [Appellant’s case]

then.” /d. at 13. He subsequently found fault with

the government and judiciary /d. ‘The military

judge dismissed the notion that lag in getting the

forensic results from DCFL was a reason for delay.

As noted above, he concluded that the government

had most of its evidence necessary to go to trial by

~

' The military judge included this discussion in evaluating the

length of the delay, but it is more appropriately considered in

the “reasons for delay” analysis.

19

early October 2005 -— _ over three months before

DCFL returned its findings.

(3) Speedy Trial Request

The military judge noted that the petitioner had

requested a speedy trial on 28 October 2005. See

id. at 14. He observed that “on many occasions Maj

King tried to speed the process along,” which

indicated that the petitioner “actually desired a

speedy trial, unlike the situation in [Barker vy.

Wingo, 407 U.S. 514 (1972)] where the defendant,

for tactical reasons or otherwise, did not.” /d.

(4) Prejudice

The military judge concluded that “there is no

prejudice in this case beyond that inherent in sitting

in pretrial confinement for 109 days.” /d.

For his ultimate conclusion of law, the military

judge ruled that

...under the circumstances of this

case, given the lengthy pretrial

confinement, the demand for speedy

trial, the unrealistic hope that DCFL

would complete its forensic analysis

in a relatively short period of time,

the unwillingness to ask _ the

docketing judge to docket this case

before 30 January, and _ the

20

Judiciary’s failure to give

this case a higher priority, the

periods of delay in this case show

that the government negligently

failed to exercise reasonable

diligence.

Id. at 15.

2. Proceedings Below

Concluding that the reason for the delay was

“extensive investigation which had to be undertaken

before |the petitioner] could be competently tried,”

the Air Force Court of Criminal Appeals ruled that

the government had not denied the petitioner’s right

to a speedy trial. Consequently, it granted the

government’s appeal under Article 62, UCMJ and

set aside the military judge’s ruling. The Court of

Appeals for the Armed Forces affirmed the Court of

Criminal Appeals’ ruling.

REASONS FOR GRANTING THE WRIT

The military judge correctly granted the

petitioner’s motion to dismiss all charges and

specifications as a remedy for the government’s

denial of the petitioner’s right to a speedy trial

under Article 10, UCMJ. The government threw

the petitioner into pretrial confinement and

formulated charges against him, but lollygagged’on

bringing him to trial in hopes that the forensic

21

analysis of computer equipment seized from

his parents’ home would allow it to pile on further

charges. In light of Appellant’s prompt request for

a speedy trial, the government’s approach cannot be

regarded as “reasonable diligence.”

Article 10, UCMJ, requires that, “[wJhen 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.” (emphasis added). In

United States v. Kossman, 38 M.J. 258, 261

(C.M.A. 1993), the predecessor to the Court of

Appeals for the Armed Forces held that:

[w]e happen to think that 3 months is

a long time to languish in a brig

awaiting an opportunity to confront

one's accusers, and we_ think

Congress thought so too. Four

months is even longer. We see

nothing in Article 10 that suggests

that specdy-trial motions could not

succeed where a period under 90- or

120-days is involved. At the same

time, we recognize that there are

many circumstances that justify even

longer periods of delay. However,

where it is established that the

22

Government could readily

have gone to trial much sooner than

some arbitrarily selected time

demarcation but negligently or

spitefully chose not to, we think an

Article 10 motion would lie.

Citing United States v. Tibbs, 35 C.M.R 322, 325

(C.M.A. 1965), the Kossman court ruled:

It suffices to note that the touchstone

for measurement of compliance with

the provisions of the UCMJ is not

constant motion, but reasonable

diligence in bringing the charges to

trial. Brief periods of inactivity in

an otherwise active prosecution are

not unreasonable or oppressive.

Kossman, 38 M.J. at 262 (emphasis added). In

determining whether the facts of a given case

constitute “reasonable diligence” under Article 10,

the Court has asserted that the four factors relevant

to a Sixth Amendment speedy trial analysis — length

of delay, reasors for delay, whether the accused

requested a speedy trial, and prejudice to the

accused — are an “apt structure” for the analysis.

Mizgala, 61 M.J. at 127-29 (citing Barker v. Wingo,

407 U.S. 514, 530 (1972)).

In Barker, this Court offered guidelines for

analyzing the speedy trial factors. This Court noted

23

that whether a delay of a given length of time is

inappropriate is “necessarily dependent upon the

peculiar circumstances of the case.” Barker, 407

U.S. at 530-31. As an example, this Court indicated

that “the delay that can be tolerated for an ordinary

street crime is considerably less than for a serious,

complex conspiracy charge.” /d. at 531.

When evaluating the “reason the government

assigns to justify the delay,” this Court opined that

“different weights should be given to different

reasons.” Specifically, a

... deliberate attempt to delay the trial

in order to hamper the defense

should be weighed heavily against

the government. A more neutral

reason such as_ negligence or

overcrowded courts should be

weighed less heavily but

nevertheless should be considered

since the ultimate responsibility for

such circumstances must rest with

the government, rather than with the

defendant. Finally, a valid reason,

such as a missing witness, should

serve to justify appropriate delay.

/d. This Court noted that the “defendant's assertion

of his speedy trial right...1s entitled to strong

evidentiary weight in determining whether the

24

defendant is being deprived of that right.”

Id. at 531-32. Finally, this Court identified three

interests leading to prejudice to a defendant,

including “to prevent oppressive pretrial

incarceration.” /d. at 532. In describing the reasons

that it regarded pretrial incarceration as prejudice,

this Court indicated |

[w]e have discussed previously the

societal disadvantages of lengthy

pretrial incarceration, but obviously

the disadvantages for the accused

who cannot obtain his release are

even more serious. The time spent in

jail awaiting trial has a detrimental

impact on the individual. It often

means loss of a job; it disrupts

family life; and it enforces idleness.

Most jails offer little or no

recreational or rehabilitative

programs. The time spent in jail is

simply dead time. |

Id. at 532-33. This Court concluded that it regarded

“none of the four factors identified above as either a

necessary or sufficient condition to the finding of a

deprivation of the right of speedy trial”:

consequently, the courts “must still engage in a

difficult and sensitive balancing process. /d. at 533.

25

The military judge’s ruling consisted of two

parts: his findings of fact on the four Barker factors

and his conclusion of law that the factors required

dismissal. His findings of fact must be affirmed

unless they are “clearly erroneous”; his conclusion

of law is reviewed de novo. See Mizgala, 61 M.J. at

127 (citing United States v. Cooper, 58 M.J. 54, 57-

59 (C.A.A.F. 2003) and United States v. Doty, 51

M.J. 464, 465 (C.A.A.F. 1999)). In the petitioner’s

case, these standards demand the military judge’s

ruling be affirmed.

1. Findings of Fact on the Barker factors

The factual existence of the “speedy trial

request” factor is uncontroverted; it is clear that the

petitioner did request a speedy trial, on 28 October

2005. The “length of delay” factor is likewise

unassailable: the petitioner went into pretrial

confinement on 5 October 2005 and was arraigned

on 30 January 2006. Consequently, any factual

dispute is limited to the findings on the “reasons for

delay” and “prejudice” factors.

The military judge found a variety of reasons

why the petitioner's arraignment took place on 30

January 2006, rather than on some earlier date. He

found delay in preferring the charges, holding the

Article 32 hearing, serving the petitioner with the

charges, and docketing the case. Concluding that

the government had enough evidence without the

26

forensic results to prosecute the charged

offenses, he dismissed the possibility that the length

of time for DCFL to return its findings was the

reason for delay. On the prejudice factor, he found

that “there is no prejudice in this case beyond that

inherent in sitting in pretrial confinement for 109

days.” For an appellate court to overturn either of

those findings, it must conclude that the military

judge was “clearly erroneous.”

The military judge’s findings on the “reason for

delay” factor were correct — not erroneous. That the

pre-preferral review, Article 32 investigation and

service of charges happened according to the

chronologies expressed in the military judge’s

findings of fact is indisputable. Similarly, that the

government and judiciary declined to alter the

docket or search for another military judge. is also

clearly established. The military judge’s finding

that the DCFL results were inessential to proving

the charged offenses — and, as such, not the “reason

for the delay” — is supported by their absence from

the pre-preferral review and Article 32 report.

Consequently, the military judge’s ruling on the

“reasons for the delay” cannot be considered

“clearly erroneous.”

On the prejudice factor, the military judge found

that “there is no prejudice in this case beyond that

inherent in sitting in pretrial confinement for 109

27

days.” It is worth noting that this Court's opinion

in Barker appears to regard pretrial confinement as

prejudice per se. When this Court drafted that

opinion, it intended it to be applicd to defendants

awaiting trial free from confinement, along with

defendants confined before trial. This Court

described time spent in jail awaiting trial as “dead

time” that “has a detrimental effect on an

individual.” In this context, the military judge's

ruling that the petitioner did suffer prejudice should

also survive the “clearly erroneous” test.

2. Conclusions of Law

The military judge correctly ruled that the

government violated the petitioner’s Article 10

rights. The government threw the petitioner into

pretrial confinement and formulated charges against

him, but dawdled on bringing him to trial in hopes

that a forensic review of computer equipment seized

from his parents” home would allow it to pile on

further charges. In light of the petitioner’s prompt

request for a speedy trial, the government's

approach cannot be regarded as “reasonable

diligence.”

The petitioner demanded a speedy trial fairly

early in his period of pretrial confinement, but was

not arraigned until after almost four months of

confinement. In determining whether the length of

delay supports a finding of a speedy trial violation,

28

this Court’s opinion in Barker cited the

complexity of the charges as a significant factor; the

less complex the charges are, the shorter the delay

that can be accepted. The military judge’s findings

and prosecution’s paper trail- indicate that the

referred charges were essentially investigated and

ready for trial well before the arraignment date. It

follows that a reasonably diligent prosecution would

have brought the petitioner to trial considerably

sooner.

With relatively uncomplex charges, an almost

four-month-long delay, the prejudice of pretrial

confinement, and a speedy trial request, it is

possible that a valid reason for delaying the

petitioner’s court-martial could have saved the

government from an Article 10 violation. The

record does not provide such a reason. Prior to

referral, prosecution negligence — especially taking

so many days to complete the pre-preferral review

and set up the Article 32 hearing — caused the

delays. The post-referral delay was essentially the

product of overcrowding of the courts. Both are

factors that the Barker court indicated “should be

considered [in a speedy trial analysis] since the

ultimate responsibility for such circumstances must

rest with the government, rather than with the

defendant."

29

Even if this Court were to accept the Court

of Criminal Appeals’ preferred reason for the delay,

the need to complete the computer analysis, the

balancing analysis supports the conclusion that the

government violated the petitioner's Article 10

rights. The government and its forensic laboratories

are not entitled to take an indefinite amount of time

to investigate “all possible sources of information

before undertaking a prosecution,” especially when

an Airman is in pretrial confinement and has

requested a speedy trial. The paper trail and

testimony of the ~-government’s attorneys

underscored the unreasonableness of this reason: the

~ government looked to the DCFL results with an eye

on adding additional charges, rather than bolstering

the existing charges.

Concededly, the government’s reasons for delay

— either as found by the military judge or as

perceived by the Court of Criminal Appeals — might

have been sufficient to tip Barker’s balancing test in

its favor if the petitioner had not been in pretrial

confinement, or if he had not made a speedy trial

demand. In this context, however, the’ reasons were

inadequate. The government violated the

petitioner's right to be brought to trial with

“reasonable diligence.” Dismissal of all charges

and specifications with prejudice was _ the

appropriate remedy.

30

CONCLUSION

The military judge correctly granted the

petitioner's motion to dismiss all charges and

specifications as a remedy for the government’s

denial of the petitioner’s right to a speedy trial

under Article 10, UCMJ. The petitioner therefore

respectfully requests that this Court grant his

petition for a writ of certiorari.

Respectfully submitted,

JOHN S. FREDLAND

CAPTAIN, U.S. AIR FORCE

Counsel of Record

MARK R. STRICKLAND

LT COLONEL, U.S. AIR FORCE

Counsel for Petitioner

Appellate Defense Division

Air Force Legal Operations Agency

112 Luke Avenue, Suite 343

Bolling AFB, DC 20332-8000

(202) 767-1562

May 2007

la

Appendix A

UNITED STATES, Appellee

v.

JOSE A. COSSIO,

Airman Basic U.S. Air Force,

Appellant

64 M.J. 254

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.

2a

Counsel

For Appellant: Captain John S. Fredland

(argued); Lieutenant Colonel Mark R.

Strickland.

For Appellee: Captain Captain Donna S.

Ruppell (argued); Colonel Gerald R. Bruce,

Lieutenant Colonel Robert V. Combs and Major

Kimani R. Eason.

Military Judge: William A Kurlander Jr.

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 (UCM3J),

10 U.S.C. §§ 880,

3a

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.’

Article 10, UCMSJ, 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

' WHETHER THE MILITARY JUDGE ERRED IN

GRANTING APPELLANT'S MOTION TO DISMISS

BASED ON A DENIAL OF HIS RIGHT TO A SPEEDY

TRIAL UNDER ARTICLE 10, UCMJ. 64 MJ.

(C.A.A.F. 2006).

ta

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, UCM.

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

confinement on the earlier charges. While on

appellate leave and as a result of an

investigation into” a counterfeit website

Sa

purporting to be an _ official Hurlburt Field?

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

* Hurlburt Field is a U.S. Air Force Base located on the

gulf coast of Fiorida and is home to the U.S.A.F. Special

Operations Command. See Hurlburt Field,

http://www2.hurlburt.af.mil (last visited Jan. 10, 2007)

(official Hurlburt Field website).

6a

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 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, UCM3J, 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 ot a Government

7a

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 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. /d.; 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, \5

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 MJ. 209, 211 (C.A.A.F. 1999). Brief

inactivity is not fatal to an otherwise active,

8a

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.LR. 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 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

9a

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.

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

10a

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 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 ts

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

lla

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 (6" 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, 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

12a

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 which the

) l3a

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 (iti)

to limit the possibility that the

defense will be impaiied. Of

these, the most serious is the iast,

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

l4a

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.

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

15a

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.

l6a

Appendix B

UNITED STATES AIR FORCE COURT OF

CRIMINAL APPEALS

UNITED STATES

v.

Airman Basic JOSE A. COSSIO

United States Air Force

Misc. Dkt. 2006-02

10 May 2006

GCM convened at Hurlburt Field, Florida on 30

January 2006. Military Judge: William A.

Kurlander.

Appellate Counsel for the United States:

Colonel Gary F. Spencer, Lieutenant Colonel

Robert V. Combs and Major Kimani R. Eason.

17a

Appellate Counsel for Appellee: Colonel

Nikki A. Hall, Lieutenant Colonel Mark R.

Strickland and Captain John S. Fredland.

Before

BROWN, MOODY, and FINCHER

Appellate Military Judges

OPINION OF THE COURT

MOODY, Senior Judge:

On 22 November 2005, the Commander of

the 16th Mission Support Squadron, Air Force

Special Operations Command (AFSOC) at

Hurlburt Field, Florida, preferred charges on the

accused, Airman Basic (AB) Jose Cossio. These

charges were one specification of attempted

violation of a lawful general regulation, one

specification of disrespect toward a

commissioned officer, one specification of

violation of a lawful order, wrongfully soliciting

identification and password information by

means of a false Hurlburt Ficld Webpage, and

one specification of violating 18 U.S.C. § 912,

by pretending to be an employee acting under

the authority of a department of the United

18a

States in soliciting identification and

password information, in violation of Articles

80, 89, 92, and 134, UCMJ, 10 U.S.C. §§ 880,

889, 892, 934. The charges were referred to trial

by general court-martial on 30 December 2005

and AB Cossio was arraigned on 30 January

* 2006. : |

Prior to entering pleas, AB Cossio, through

-counsel, moved for dismissal of the charges and

specifications due to an alleged violation of his

right to a speedy trial under Article 10, UCMJ,

10 U.S.C. § 810. The military judge granted the

motion on 3 February 2006, dismissing the

charges and specifications with prejudice. The

government has appealed this dismissal under

Article 62, UCMJ, 10 U.S.C. § 862. We have

considered the government’s brief in support of

this appeal and AB Cossio’s answer thereto. For

the reasons set forth below, we set aside the

military judge's decision and remand the case to

the trial court for further proceedings.

Background

This case arose following the discovery that

AB Cossio had -established a website which

looked remarkably similar to the one maintained

by Hurlburt Field, Florida. This false website

solicited members to provide their user name

and password. At the time the website was

19a

established, AB Cossio was living in

Illinois on appellate leave, having been

previously convicted of wrongfully accessing

the private financial records of Air Force

personnel. He did this through a Defense

Finance and Accounting System website,

causing another member’s pay to be routed to a

charity selected by AB Cossio.

In granting AB Cossio’s speedy trial motion,

the military judge made extensive findings of

fact. Because these findings- comprise

approximatciy 20 pages of transcript, we will

identify and summarize what we consider to be

the most significant for purposes of this appeal.

* On 27 September 2005,

personnel assigned to the 16th

Communications Squadron,

Hurlburt Field, learned of a

website that mimicked Huriburt’s

official site.

* On 5 October 2005, the AFOSI

and - local law enforcement

Officials searched AB Cossio’s

residence in Illinois, seized five

computer hard drives, among

other things. and placed AB

Cossio under apprehension.

20a

¢ On 6 October 2005,

AB Cossio was transported from

[Ilinois to Hurlburt Field and

placed in pretrial confinement.

¢ On 11 October 2005, the

pretrial confinement hearing took

place. (Although not contained in

the judge’s findings of fact, on

14 October 2005 the Pretrial

Confinement Reviewing Officer

continued AB Cossio in pretrial

confinement).

¢ Around 15 October 2005, the

AFOSI sent the hard drives to

Defense Computer Forensics

Laboratory (DCFL) for forensic

analysis.

* On 26 October 2005, Captain

W of the 16th Special Operations

Wing legal office (16 SOW/JA)

sent relevant statutes and

documents to the AFSOC legal

office (AFSOC/JA) for a “pre-

preferral review.”

* On 28 October 2005, AB

Cossio, through counsel, made a

demand for speedy trial.

2la

* From 20 October to 15

November 2005, an analyst at

DCFL conducted the “imaging”

of the hard drives, copying them

so that they could be analyzed.

* On 10 November 2005,

AFSOC/JA completed its “pre-

preferral review.”

¢ From 15 November 2005 to 12

January 2006, the DCFL analyst

conducted the actual forensic

examination of the hard drives,

although he attended a training

course from 12 to 23 December

2005.

¢ On 22 November 2005, AB

Cossio’s commander preferred

charges. |

¢ Around 22 November 2005, the

AFSOC/JA advised the trial

counsel assigned to AB Cossio’s

case that another case, United

States v. Beres, was to be his top

priority.

22a

* On 23 November 2005, the

Commander of 16 SOW (16

SOW/CC) appointed a Major

(Maj) A to be the investigating

officer (IO) for the Article 32,

waa: i ae. See,

investigation in AB Cossio’s

case.

¢ On 29 November 2005, the 16

SOW/CC appointed a different

IO, Maj K, in view of his

knowledge of computers.

* On | December 2005, Maj K

set the date of the Article 32,

UCMJ, investigation for 6

December 2005.

¢ On 5 December 2005, AB

Cossio, through counsel,

requested a delay until the

afternoon of 13 December 2005.

¢ On 14 December 2005, Maj K

conducted the Article 32, UCMSJ,

investigation.

¢ On 22 December 2005, Maj K

submitted his written report of

23a

the

investigation-to the 16 SOW/JA.

°- On 3. January 2006,

representatives of the

government, along with the

defense counsel, attended a

docketing conference with the

Chief Circuit Military Judge

(CCMJ) of the Eastern Judicial

Circuit. At this conference, the

government asked for a 30

January 2006 trial date, due in

part to Hurlburt Field having

three intervening courts

scheduled for dates earlier in

January.

* On 6 January 2006, the CCMJ

directed that AB Cossio’s trial

begin on 30 January.

* In 2005, Hurlburt Field tried the

highest number of general courts-

martials in the Air Force.

¢ On 25 January 2006, the

AFOSI completed its report of

investigation in AB Cossio’s

case,

24a

* On 30 January 2006, trial began

and AB Cossio was arraigned.

Discussion

The United States may appeal “an order or

ruling of the military judge which terminates the

proceedings with respect to a charge or

specification.” Article 62(a)(1)(A), UCMJ. The

military judge granted the defense’s motion to

dismiss the charges and specification with

prejudice, finding a violation of AB Cossio’s

Article 10, UCMJ, nghts. The military judge’s

ruling meets the jurisdictional requirements of

Article 62, UCM.

This Court reviews a military judge’s rulings

on speedy trial de novo and his findings of fact

under a clearly erroneous standard. United

States v. Cooper, 58 M.J. 54, 58 (C.A.A.F.

2003). We have examined these findings of fact

and, with certain qualifications discussed below,

conclude that they are not clearly erroneous.

Our misgivings concern some of the military

judge’s observations contained in his findings of

fact. For example, in commenting on_ the

forensic examination conducted at DCFL, the

military judge concluded that the laboratory did

not work with wuat the judge viewed as the

25a

proper speed. He stated, “DCFL should

have attached a higher priority to their

examination of the materials in [AB Cossio’s

case]. Had this been done, it is likely that the

forensic examination would have been finished

much sooner.” Later, on another matter, the

military judge commented, “|The] initial pre-

preferral review _— took [ Headquarters]

AFSOC/JA 14 days to turn around. In the

Court’s view, this took way too long.”

Again, in commenting on the substitution of

Maj K for Maj A as IO, the military judge

stated, “nobody told the defense until |

December that an investigating officer had been

appointed. The Court has trouble understanding

why it took nine days to notify the defense of

the appointment of [Maj K].” Although Maj K

was actually appointed on 29 November 2005,

only 3 days prior to notification, the judge

apparently believed that these actions should

have taken place much sooner. The military

judge also found that AB Cossio’s case would

not involve “an overwhelming amount of case

preparation” and implied that a_ forensic

~ examination of the five hard drives in question

may not have even been necessary to prove up

the charges.

26a

In examining these statements, and any

other similar ones that may be contained in the

findings of fact, we note that military judge’s

concern is the length of time that was involved

in preparing the case for trial. Insofar as the

statements refer to elapsed days, they can be

compared with the testimony and other evidence

for accuracy. However, to the extent that they

contain criticism of the government’s

processing of the case, they are problematic.

That is, while in a sense it may be true that,

compared to a standard of ideal justice, the

AFSOC/JA took “way too long” to do its initial

review of the case, it is also true that this

statement cannot be verified or disproved by

anything in the record, although we note the

large number of cases that AFSOC_ was

overseeing at the time.

; This is also true of the military judge's

apparent belief that the case would not involve

extensive preparation and that a_ forensic

examination may not even have been needed.

These statements are also speculative, made, no

doubt, with the advantage of hindsight.

Therefore, we take these conclusory statements

to be opinions of the military judge to which we

give due consideration but which we do not

consider to be matters of objective fact which

27a

can be tested for clear” error and which must

necessarily affect our holding.Tuming to the

-legal [principles] at issue here, Article 10,

UCMBJ, provides that “When any person subject

to [the UCMJ] ts 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.” The standard for measuring

compliance with Article 10 “is not constant

motion, but reasonable diligence in bringing the

charges to trial. Brief periods of inactivity in an

Otherwise active prosecution are not

unreasonable or oppressive.” United States v.

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

(quoting United States v. Tibbs, 35 C.M.R. 322,

325 (C.M.A. 1965)).

Our superior court has determined that, in

evaluating an alleged violation of Article 10, we

must apply the criteria set forth in Barker v.

Wingo, 407 U.S. 514, 530 (1972): “Length of

delay, the reason for the delay, the defendant's

assertion of his right [to a speedy trial], and

prejudice to the defendant.” See also United

States v. Birge, 52 M.J. 209, 212 (C.A.A-F.

1999).

In applying these criteria to AB Cossio’s

case, we note that the length of time elapsing

28a

between incarceration of AB Cossio and his

arraignment—117 calendar days—is not in

dispute. The military judge calculated the days

attributable to the government as 109 days,

making allowances for delays at the behest of

the defense. However, for purposes of Article

10, we view the difference between the two to

be insignificant. There is no dispute that AB

Cossio made a demand for speedy trial.

Therefore, we will focus our discussion on the

other two criteria, bearing in mind our superior

court’s holding that Article 10 provides a more

“stringent” speedy trial protection than the Sixth

Amendment. /d.

Reason for the Delay

The military judge concluded that various

blocks of time consumed in the processing of

the case were excessive and without adequate

reason. He mentioned, for example, the 14 days

it apparently took the AFSOC/JA to examine

the case prior to preferral, the 7 days to appoint

Maj K as IO, the fact that Maj K did not set the

Article 32, UCMJ, hearing immediately, and

that, in the military judge’s view, the

government should have requested a trial date

prior to 30 January 2006, utilizing other military

installation courtrooms or conference rooms if

necessary. |

29a

However, after examining the record

as a whole, and drawing upon our own common

sense and knowledge of the ways of the world,

we conclude that the reason for the timing of the

preferral, Article 32, UCMJ, hearing, referral,

and arraignment in this case is that there was~

extensive investigation which had to be

undertaken before it could be competently tried.

While no doubt most of the data gleaned from

examining the five hard drives in question was

not relevant to the case, it is only to be expected

that the government would want to pursue all

possible sources of information — before

undertaking a prosecution. Despite the military

judge’s view that the case is not difficult, we see

nothing unusual. let alone negligent, in the

government exploring all possible leads that

come to its attention. To put it succinctly, when

-an accused is arraigned five days after the

completion of the AFOSI_ report of

investigation, our first impression is not that the

government has been dilatory.

We acknowledge that there were some

apparent missteps in the government’s handling

of the case. For example, the government did

not provide all the requested discovery to the

defense as expeditiously as it could have.

However, the various periods of time identified

30a

by the military judge as unreasonable

delays never rose to the level of an absolute

cessation of case preparation, as occurred in

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

1996). In that case, the government apparently

stopped processing the trial altogether, thereby

causing an Article 10 violation. In any event, an

accused is entitled to a fair trial, not necessarily

a perfect one. See generally United States v.

Hasting, 461 U.S. 499, 508 (1983).

The military judge recognized _ the

government’s interest in thoroughly exploring

all aspects of a case prior to trial when, in the

last of his factual findings, he stated:

Although the defense in this case

repeatedly asked for an early trial

date, if this case had been fully

litigated and the DCFL report

had not yet been completed, it is

likely that the defense theme

would be “the government’s rush

to judgment.” Given that the

burden of proof is upon the

government, and the fact that

government counsel’s job is to

seek justice and not simply a

conviction, -the government in

31a

every case has a_ right’ to

methodically and carefully

prepare its case, with due

consideration for the

requirements of Article 10.

Prejudice

Assuming, arguendo, that nevertheless the

government has been dilatory in its processing

of the case, we must still inquire as to whether

AB Cossio has been prejudiced. The military

judge’s analysis of this criterion is as follows:

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

32a

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 for 109 days.

Admittedly, confinement is prejudicial.

However, balancing the mere fact of pretrial

confinement against the government’s interest

in a thorough investigation of the case, and

especially taking into account the military

judge’s own determination that AB Cossio’s

ability to put on a defense had not been harmed,

we conclude that there has been no prejudice to

the substantial rights of AB Cossio. See United

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

yt)

Decision

Examining the record of trial in light of the

Barker criteria, and applying the Article 62,

UCMSJ, standard of review, we hold that AB

Cossio has not been denied his right to a speedy

trial as secured by Article 10, UCMJ. The

decision of the military judge dismissing the

charges and specifications is set aside.

Accordingly, the appeal of the United States ts

33a

GRANTED.

Judge FINCHER participated in this opinion

prior to his reassignment.

OFFICIAL

LOUIS T. FUSS, TSgt, USAF

Chief Court Administrator