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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2006

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0522%3A1. Public record. Not legal advice.